text:
    Steele and others vs. White and others.
    Where a person interested in a suit voluntarily compromises the same, without any fraud or imposition practiced upon him, he cannot be relieved from the compromise, although he shows it Was not beneficial for him, or shows that he had the right to recover in the suit in point of law.
    Where a party has released all his interest in a suit, he has no right to appeal from an order made therein which cannot prejudice him, although it may be wrong as against other parties.
    An appeal cannot be sustained by a person who cannot be injured by the alleged error of the judge a quo, unless he is the legal representatives of a party who may be injured thereby.
    July 19th.
    This was an appeal by Charles Lydia White from an order of the vice chancellor of the first circuit, directing certain surplus monies paid to the clerk of the late equity court in that circuit, to be paid to the legatees of Charles White, deceased. The money in court arose from the sale of certain real estate of C. White, under a mortgage foreclosure against his heirs and devisees. Lydia White, the widow and executrix of C. White, claimed the money on the ground that the estate mortgaged was either held in trust for her, or that she had a valid claim against her husband, as his creditor under an antenuptial contract. She filed a bill against the heirs and legatees of C. White, by the direction or permission of the equity court, to settle the rights of the several parties to the fund. That cause was at issue, and the parties had commenced taking testimony therein at the death of L. White. A cross bill was also filed against her for a discovery, and also for an account of the estate of her late husband, which had come to her hands as executrix; which cross bill had been taken as confessed against her, for want of an answer, a short time previous to her death, and continued in that situation. None of the suits having been revived, and no administration granted, either on her estate or on that of C. White after her death, and Isabella Steele, one of the children and legatees of C. White, having intermarried with R. Buloid, an agreement was entered into between Buloid and wife, and Thomas White and C. L. White, so far as related to their rights, to discontinue the controversy, and to distribute the fund according to the will of C. White. A petition was thereupon prepared, setting forth these facts, and also, that J. Cockroft, the executor named in the will of L. White, but who had not proved the same, and who, together with C. L. White, were the only children and legatees of Lydia White, was satisfied with the arrangement, and would not oppose the application ; and praying that the money might be paid out of court to the petitioners accordingly.
    This petition was presented to the vice chancellor of the first circuit, on the second Tuesday of February, 1831, but upon the request of the solicitor who filed the bill for Lydia White, who being in court, opposed the petition upon the ground that his costs had not been paid; the hearing of the same was postponed until the then next motion day. In the mean time C. L. White revoked the authority of the solicitor who presented the petition, and directed him not to present in his name. The other petitioners then gave notice to C. L. White of presenting the petition on their own account, so far as related to their own rights under the compromise; and it was presented accordingly. The application was opposed by C. L. White’s solicitor, but the vice chancellor made an order for the payment of the fund in court to the petitioners, according to the compromise,

      W. Silliman. for the appellant.

      T. Fessenden, for the respondents.
   The Chancellor.

On examining the facts sworn to in the petition and in the affidavits presented to the vice chancellor for and against the application, I think there is no sufficient ground to justify a belief , that Charles Lydia White was imposed upon, or defrauded in the compromise which was made between him and the other petitioners. Whether the-compromise was a beneficial one to him, is not material to-consider. In Lewis v. Cooper & Flinn, (Cook’s R. 467,) the supreme court of errors and appeals in Tennessee decided that a party was bound by a compromise of a law suit; and could not be relieved in a court of equity, if there was no fraud, although he had agree to pay more than the law would have compelled him to pay. So far as the question of right was concerned in this case, both parties were upon an equal footing. The suit had been long pending, and C. L. White was a party thereto, and managed the suit for his mother. He therefore undoubtedly knew and understood the nature and extent of her claim. He did not then, neither does he now know what would have been the legal result of the suit if it had been continued.

In the petition and the affidavit annexed thereto, he swears that the estate of his mother was sufficient to pay all her debts and legacies, independent of the claim upon this fund; and he and Cockroft were her sole heirs, legatees and devisees. He subsequently swears that she left no property except her claim upon this fund, having distributed her property before her death ; and that she was indebted to her solicitor for the costs in the suit. If the last affidavit contains the correct statement of the facts, it was a case in which her creditors had an interest, and perhaps the court ought not 'to have ordered the money to be paid out to the irresponsible brother -without security to refund if her personal representatives revived and finally succeeded in the suit. But even in such a case, the compromise and agreement of €3. L. White was valid and binding on him, to the extent of his interest in the surplus after paying the debts of his mother and the expenses of administering her estate. He therefore has no interest in this question, and is not injured by the order from which he has appealed. Neither is he the legal representative of, or a trustee for the creditors of his mother, or for any other person whose rights are affected by the order. If the decision of the vice chancellor was right so far as the inter-est of the appellant Was concerned the decree must be affirmed as to him, although the rights of other persons are violated.

If the creditors of Lydia White could not have appealed from this order, before administration was granted to a person competent to appeal and protect their rights, as to which I express no opinion, they probably might, under the particular circumstances of this case, have filed a bill and obtained an injunction to protect their rights. But whether they had any remedy or not, this court cannot sustain an appeal by a mere volunteer for their benefit. The case of Reid v. Vanderheyden, (5 Cowen’s R. 719,) in the court of errors, is' conclusive to show that an appeal cannot be sustained by a person who cannot possibly be injured by the alleged error of the judge a quo ; unless such person is the legal representativé of a party who may be injured thereby.

The order of the vice chancellor, so far as it affects the interest of the appellant, is correct; and it must be affirmed, with costs to be paid by him. And the appeal, so far as it seeks to review the decision of the vice chancellor, on the ground that the order injuriously affects the rights of others,? not parties to this appeal, must be dismissed.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Apthorp and others vs. Comstock and others.
    Where a deed is alleged to be a forgery, and has been improperly certified as duly proved and recorded, the court of chancery may take jurisdiction of the cause, for the purpose of settling the title to a large tract of land, and to prevent a multiplicity of suits. But in such a case, it is proper to submit the question, as to the genuineness of the deed, to a jury under the direction of the court.
    Although the court of chancery in the exercise of a sound discretion may decide matters óf fact, Without the intervention of a jury; yet, if important rights are depending on mere questions of fact, it may be proper to award a feigned issue for the trial of such questions of fact.
    Where a feigned issue is awarded, the "court may impose such restrictions on the parties as will prevent all fraud or surprise upon the trial of such issue.
    Where the court of chancery directs an action to be brought, although particular directions are given, the parties in other respects are left to their legal rights, and the application for a new trial, in such a case, must be made to the court of law in which the action is brought, and subject to the rules which govern such court in other cases.
    Where an issue is directed, it is to inform the conscience of the chancellor, and the application for a new trial must be made to this court.
    The court of chancery will not direct a new trial of a feigned issue, merely on the ground that improper testimony was received on the trial, or that the judge rejected that which was proper, if, on the whole facts and circumstances, the chancellor is satisfied the result ought not to have been different if such testimony had been rejected in the one case or received in the other.
    Where a fraudulent combination is established, the acts and declarations of any one of "the parties thereto may be proved against the others. But only such acts and declarations as constitute a part of the msigestw ought to be so received.
    January 20th, 1829.
    This case is reported in I Hopkins’s R. 143, and in 8 Cow-en’s R. 386. After the decision of the court of errors on the appeal of the defendants, testimony was taken in the cause, and a great number of exhibits were put in and proved before the examiner. Most of the exhibits were produced for the purpose of shewing by comparison of hands that the deed was a forgery ; and that John Jarvis, of Cold Spring, was the witness who appeared before the commissioner and swore to the execution of the deed. The cause was brought to hearing on pleadings and proofs.

      8. M\ Itopkins, for complainants.

      F. A. Tallmadge J. Tallmadge for defendants.
   The Chancellor.

It is not necessary for me to examine the question whether this is a proper subject of equitable jurisdiction. This question was distinctly raised before Chancellor Sanford, on the motion to dissolve the injunction in this cause and in the court of errors on the appeal from his decision. In both cases the jurisdiction of this court was sustained. I have no doubt of the correctness of these decisions. But if I were of a different opinion, I am not at liberty to overturn the decision of the court of errors, which has now become the law of the case, on that point. I have looked into the several opinions delivered in the court of errors and find this question must have been passed upon by that court. The jurisdiction of the court in this case has been sustained on the ground of the alleged forgery of the deed to Enoch Comstock; or, upon the charges in the bill, that it is now attempted to be used for the purposes of fraud; that the proof endorsed upon the deed whereby it Was admitted to be recorded, was surreptitiously obtained, by an imposition on the commissioner, and by perjury; that the deed remains a cloud upon the complainant’s title, and cannot be removed from the record ; and that the title cannot be settled so as to prevent a multiplicity of suits without the aid of this court. Whatever opinion may be formed as to the genuineness of the signature of Andrew Pierce to that deed, no one, who examines the facts in this case, can doubt that the proof of the deed was by the perjury of the person who was imposed upon the commissioner as one of the subscribing witnesses. Although the commissioner was not sufficiently cautious in ascertaining the identity of the witness, there is no ground to suppose he had any connection whatever with those concerned in the fraud, or that he intentionally violated his duty.

Several questions are presented by the pleadings and proofs. The first is as to the genuineness of the signatures of Andrew Pierce, and the subscribing witnesses to the deed. Even if those signatures are genuine, and on this subject there is certainly room for great doubt, it does not follow that this deed is to be sustained. There is reason to believe, if the deed was genuine, that it was found among the papers of Andrew Pierce, by Tallman, after his death, or at least after he ran away ; and that it was never in fact delivered to Corn-stock, in consequence of the bargain for the sale of the lands having been rescinded. Or, if it had been delivered, that it was returned, upon an agreement to rescind the sale; and with the intention of revesting the title in Pierce. In either case, the defendants would not, at this time, have any equitable claim to the land.

Although this court in the exercise of a sound discretion, has a right to decide every matter of fact which comes before it without the intervention of a jury, yet there are some cases in which important rights, depending upon a mere question of fact, ought not to be decided without giving the defendant, who has not come voluntarily into this court, an opportunity to establish his claims before a jury. The question as to the genuineness of this deed, I consider one peculiarly proper for the decision of a jury. And as there must be an issue for that purpose, 1 shall at the same time give the defendants an opportunity to show, if they can, that this deed came into the hands of those who procured it to be proved before the commissioner, either directly or indirectly from the supposed grantee. I shall also impose such restrictions upon the parties as will prevent all fraud or surprise on the trial.

There must, therefore, be feigned issues made up and tried at the circuit in New-York, unless the parties consent to a trial in the superior court of that city, for the purpose of settling the following points; First, whether the signatures of Andrew Pierce, and the subscribing witnesses to the deed, are genuine signatures ; second, whether the deed was delivered by the grantor to Enoch Com-stock, ■ or to any other person for his use, at the time it bears date, or at any time before the execution of the deed of the 31st of January, 1793, to Davenport; and, third, whether the person who procured the deed to be proved before the commissioner, or George Hepburn, or David Tail-man, obtained the same directly or indirectly from the custody or possession of Enoch Comstock or his heirs. Either party is to be at liberty on the trial to examine any witness whose testimony was read upon the hearing of this cause, or to read their depositions heretofore taken, if they are dead, or out of the jurisdiction of the court; and either party is also to be at liberty to read the deposition of any witness of the opposite party, which was read on the hearing of this cause. And to prevent any surprise by the introduction of new witnesses, notice of trial must be given at least thirty days before the day appointed for such trial ; and no witnesses not heretofore examined are to be introduced on the trial, unless the party producing such new witnesses shall, at least fifteen days before such trial, give to the opposite party, or to his attorney or solicitor, notice of his intention to produce such witnesses, with their names and additions, and their usual place of abode or residence, with such particularity as will enable such party to find out the witnesses, and ascertain their character. But this prohibition as to new witnesses is not to extend to those who are called merely for the purpose of impeaching other witnesses ; or where the judge who tries the cause shall be satisfied there is a reasonable excuse for not giving such notice, or for giving a notice for a shorter period of time. The proof of the execution of the deed, taken before the commissioner, is not to be received on the trial as any evidence of the execution thereof; or of the genuineness of the signatures of the grantor, or the subscribing witnesses to the deed. The issues are to be so framed that the defendants in this cause may hold the affirmative of the several questions above stated ; and they are to be at liberty to open the case and close the argument on the trial. Either party is to be at liberty to notice the cause for trial, and neither party is to be permitted to put it off without sufficient cause shown, and on the usual terms. The trial must also be by a struck jury, if requested by either party.

July 19th, 1831

The jury having found a verdict for the complainants on ■each of the issues above directed, the cause was again heard, ún a motion for a new trial, and upon the equity reserved.

S. M. Hopltins, for the complainants.

F. A. Tallmadge, <$• J. Tallmadge, for the defendants.

The Chancellor. The order for the feigned issue in this cause, which appears to have been Settled between the parties, has referred one question to the jury, Which the court intended to have reserved for its own decision on the coming in of the postea. The last issue, which gave the defendants the privilege of showing, if they could, that the deed came from the possession of Enoch Comstock or his heirs, either directly or indirectly, into the hands of those who procured it to be proved before the commissioner, Was intended to aid the court in deciding the question whether the contract to sell the land to Comstock had been rescinded. But by the form of the issue, the jury have passed directly upon the main question. They have found that neither the signature of the grantor, nor of either of the subscribing witnesses, to the deed in controversy, is genuine ; that the deed did not come into the hands of those who procured it to be proved from the possession or custody of Enoch Comstock or his heirs, either directly or indirectly ; that the contract for the sale of the land to Comstock was given up and rescinded by the parties ; and that the deed of the premises, if one was ever executed, was cancelled, or re-delivered or returned to Pierce.

Very little new light is thrown Upon this transaction by the re-investigation of the facts before the jury ; but the new evidence, so far as it goes, tends to strengthen, if possible, the conclusion at which I had before arrived upon the last point. With the finding of the jury upon the question of the rescinding of the contract of sale, I am perfectly satisfied. My own opinion, upon all the evidence, perfectly coincides with theirs, that the contract of sale to Comstock was rescinded by the ■ parties ; and that if any conveyance was ever executed and delivered by Pierce, it was given up to him at that time, under a supposition that no re-conveyance was necessary ; or that a re-conveyance was actually executed, and has been suppressed by those who were concerned in the subsequent frauds. In either case, the defendants have no right at this time to set up any title, derived under a conveyance from Pierce, against his subsequent grantees or their representatives. I am also satisfied, beyond all question, that J ohn Jarvis of Cold Spring, was the witness who appeared before the commissioner on the 13th of October, 1819, and proved the deed in question; and also proved another deed from Pierce to Stiles, under which Gilbert and Hepburn pretend to claim title, through other deeds bearing date two days thereafter. Whether all these deeds were forgeries, and whether Jesse Gilbert was the person who suborned Jarvis to swear to the execution of the two deeds before Ruggles, the commissioner, are questions not necessary to be decided in this cause. As the original deed from Pierce to J udson Stiles is not in evidence, it is impossible to say whether it was originally filled up in the name of Judson Stiles, which now appears in the exemplification of the record, or whether it has been altered from a deed to Judson Titus, whose name is inserted therein as the person from whom the consideration was received. The question whether all or any of the signatures to the deed in question are genuine, is one of more doubt than the others upon which the jury have passed ; but even as to that, the weight of testimony is probably in accordance with the verdict of the jury.

It then remains to be seen whether there was any such error in the decisions of the judge who tried these issues, as to render it proper to grant a new trial. And here it may be proper to observe that the principles upon which this court directs a new trial of a feigned issue, are somewhat different from those which govern courts of law in granting new trials. Where this court directs an action, although accompanied by particular directions, the parties in other respects are left to their legal rights. The application for a new trial is in that case to be made to the court in which the action is brought, and is subject to the rules which govern the proceedings of that court in other cases. But if an issue is directed, it is to inform the conscience of the chancellor; and the application for a new trial must be made here. Carstairs v. Stein, 2 Rose’s R. 178. Fowkes v. Chadd, 2 Dickens’ R. 576. Ex parte Kensington, Cooper’s R. 96.) In the latter case this court will not grant a new trial merely on the ground that the judge received improper testimony on the trial of-the issue, or that he rejected that which was proper, if, on the whole facts and circumstances, the chancellor is satisfied the result ought not to have been different, if such testimony had been rejected in the one case, or received in the other. (Head v. Head, 1 Sim. & Stu. R. 150. Turn. & Russ. R. 142, S. C. on appeal. Barker v. Ray, 2 Russell’s R. 63. Collins v. Hare, 1 Dow’s R. N. S. 139, per Lord Lyndhurst.)

The first objection on the part of the defendants is, that the judge received evidence of the acts and declarations of persons not parties to the suit, and who were not acting as agents for the defendants. It appears to be well settled that where a fraudulent combination is established, the acts and declarations of any one of the parties thereto may be proved against the others. (Patton v. Freeman, 1 Cox’s N. J. Rep. 113. Wilbur v. Strickland, 1 Rawle’s R. 458. Wright v. Court, 2 Car. & Payne’s R. 232.) But I apprehend that such acts and declarations only as constitute part of the res gestee ought to be so received. In this case I think there was sufficient evidence of a fraudulent combination between John Comstock, Tallman, Hepburn, and some others not necessary to be here named, to extort money from the heirs of Davenport and others by means of this deed, as early as September, 1819, and probably at the time Comstock applied to Tallmadge to commence a suit in the March previous. And such combination continued for some time thereafter; probably down to the time of the trial, as to some of the parties. The acts and declarations of Tallman, Hepburn, &c. therefore, formed a part of the res gestee, and were admissible in evidence against Comstock. Gilbert and Jarvis had been examined as witnesses before the hearing; and the order directing the issues intentionally gave the privilege to the complainants to use their depositions, and to establish their connection with the fraud by other testimony, in opposition to particular facts sworn to by them. Admitting, however, that the judge may have erred in admitting evidence of some- of the more recent declarations of Tallman, &c. there is sufficient testimony, to which no legal objection exists, to satisfy me that an intelligent jury must always come to the same result, upon the main point on which the equitable rights of these complainants rest. On that point the conscience of the court is satisfied ; and if the verdict had been different 1 should probably have been compelled to grant a new trial. The question of forgery is more pro, erly a legal question. If the cause had turned exclusively on this point, the court would probably have directed an action to be brought, or would have permitted the parties to go to trial in the action of ejectment already commenced, under such restrictions and directions as were proper to guard against further frauds. But if the deed was actually signed by Pierce and by the subscribing witnesses whose names appear thereon I think the result of this cause must be the same, on the other grounds established by the proofs.

I see no objection to the competency of Penfield as a witness. The only possible interest he could have had, appears to have been released before he was examined in the original cause. Neither could the declarations of Andrew Pierce after he had parted with his title, be received in evidence. They were therefore properly excluded on the trial. And this is certainly not a case in which cumulative testimony can be received, so as to justify the court in granting a new trial on the ground of the newly discovered evidence.

The application for a new trial must therefore be denied ; with the costs of resisting the same, against all the defendants, except the infant and the feme covert. A decree must also be entered, settling the rights of the parties as established by the verdict, and making effectual provision for the protection of the complainants and their grantees, by injunction, release, &c.

Although there is no reason to suppose that any of the defendants, except John Comstock, were originally parties to the fradulent combination to cheat and to extort money from these complainants, yet they have subsequently adopted and confirmed what he and the other conspirators had done, by bringing ejectments when they could not have believed in the equity and justice of this claim, whatever opinion they may have formed as. to their mere legal rights. I cannot therefore excuse them from the payment of that part of the complainants’ costs and expenses which is taxable as between party and party. .The infant and the feme covert, however, are not responsible for any part of this litigation and they are to be excused from the payment of any part of those costs to which the complainants have been subjected by this inequitable claim on the part of the defendants.


text:
    De Caters and wife vs. Le Ray De Chaumont and Kanady.
    Where an insolvent debtor assigned all his property to C., in trust to pay, in the first place, certain preferred creditors, and afterwards to distribute the residue rateably between such of his general creditors as should, within one year from the date of that conveyance, accept the provision made therein for them, and release him, (the insolvent,) from all further claims ; and D., a creditor of the insolvent, did not receive any notice of the trust until after the expiration of the one year ; but as soon as he received such notice, applied to C., the trustee, to be permitted to accept the provision made by the trust deed, upon a compliance on his part with the conditions thereof, • and the trustee refused such permission ; and the insolvent debtor was afterwards discharged under the insolvent act, and assigned all his interest in the surplus, which by the trust deed was to be refunded to him, to K., for the benefit of his creditors generally ; it was held, that D. had an equitable right to his proportion of the trust fund, upon a compliance with the conditions imposed, he not having had notice of the trust within the year, and having done nothing since he had such notice inconsistent with his ofier to accept of the provision made for him in the trust deed.
    Where, under such circumstances, a creditor, in consequence of want of notice, mistake, or accident, was unable to comply with the terms prescribed, within the time limited, and who has done nothing inconsistent with an acceptance of the provision made in his favor, he will be admitted to his share of the fund, provided he signifies his election to do so, in a reasonable time.
    But such of the creditors as, within the time limited, had notice of the creation of the trust, and neglecte'd or refused to accept of the provision made therein for them, are precluded from any participation in the fund, arid their only claim will be upon the surplus, if any there should be re. maining, after satisfying the debts of the creditors who accepted their proportion of the trust fund upon the terms proposed.
    July 19th.
    James Donatianus Le Ray Db Chaumont, being possessed of a very large estate, consisting principally of wild lands in the states of New-York and Pennsylvania, and being very largely indebted and insolvent, in December, 1823, conveyed all his property, in the United States and elsewhere, to the defendant, Vincent Le Ray De Chaumont; in trust, in the first place, to pay certain preferred creditors, and afterwards to distribute the residue rateably between such of his general creditors as should, within one year from the date of that conveyance, come in and accept the provision made for them by the trust deed, and release the grantor from further claims. Soon after the execution of the trust deed, the trustee directed his agent in Paris to give notice by letter to the several creditors resident in Europe, of the terms and conditions thereof.. Most of the creditors who had.no security for their debts, came in under the assignment. But the complainant Jeanne Antoinette, wife of De Caters, residing in the Netherlands, and a creditor to the amount of about 170,000 did not receive notice of the creation of the trust within the year.. When the complainants were informed of the terms and conditions of the trust deed, they instructed their attornies in New-York to apply to the trustee for permission to come in under the assignment, on complying with its conditions. The application was made accordingly, but the trustee refused to grant it unless the consent of those creditors who came in within the year was obtained, or the court directed it to be done. J. D. Le Ray De Chaumont was discharged under the insolvent act, and assigned all his interest in the surplus, which by the trust deed was to be refunded to him, to the defendant Kanady for the benefit of his creditors'generally, according to the provisions of the statute.
    This bill was filed by De Caters and wife, in behalf of-themselves and such others of the creditors as should elect to come in under the decree, for a sale and distribution of the property, and the execution of the trust; and praying, among other things, that they might be permitted to come in under the trust deed, and receive their share of the property rateably with the other creditors. The defendants put in answers, which substantially admitted the facts stated in! he bill; but Referred the question, as to the rights of tne creditors who di-d not accept of the terms contained- in the trust deed before the expiration of the year, to the decision of the C0UrL

      H. Harrison, for the complainants, cited Bunch v. Kent? 1 Vernon’s R. 260, and Spottiswood v. Stockdale, Cooper’s R. 102.

      Thomas L. Ogden, for the defendants.
   The Chancellor.

The right of the complainants to come in and share with the other creditors the fund created by the trust deed, does not, as supposed by their counsel, depend upon any general continuing equity in their favor notwithstanding their neglect to comply with the condition in the deed. In the case of Dunch v. Kent, it is true, the complainant insisted there was a continuing trust in favor of all the creditors, although they did not come in within the year. But this question does not appear to have been decided. In that case there was an equity in favor of the complainant and all the other creditors of the bankrupt, to be paid out of the fund due to his estate; and if there was any thing to which those creditors who did not come in were not entitled, Lindsey was, as to that portion of the fund, a trustee for the creditors generally. He took the whole fund, as executor of Colville, in right of his wife, and therefore an account was directed. But the lord keeper refused to hear the discussion as to the particular rights and equities of any of the creditors. When the case came before Lord Guilford, on the master’s report, (1 Vern. R. 319,) it turned out that none of the creditors of Colville came in within the year. The real contest in that case was not as to priority of payment between those creditors who came in and those who did not. It was between the creditors, on the one side, and Lindsey and his individual creditors on the other; he having attempted to divert the whole funds to the payment of his own private debts. It was therefore very properly decided that the fund created by the patent was special assets in his hands as executor, for the payment of Colville’s debts; and was not convertible by him to his own purposes. The case of Spottiswood v. Stockdale, (Cooper’s R. 102,) shows that a composition deed, though void at law because all the creditors have not signed it within the limited period, is good in equity, if they have actually assented to it and acted under it within the time. The same principle had been previously recogni2ed by Lord Eldon, in the case of Sadler v. Jackson, Ex parte, (15 Ves. R. 52.)

There is another principle, however, which will entitle these complainants to equitable relief in this case; and some of the other creditors may be in the same situation. It was unquestionably the intention of the person who created this trust, that all of his creditors, as well in Europe as in this country, should have an opportunity to accept of the terms offered by the trust deed ; and that they should be entitled in that case to their proportion of his property. Those who had notice of the trust in time to enable them to come in within the year, but who neglected or refused to do so, must be considered as rejecting the offer thus held out to them in common with the other creditors. As against them, those creditors who accepted the offer are in equity, as well as at law} entitled to a priority. The others have voluntarily relinquished the provision which was made for them by the trust deed, and have no claim except upon the surplus, if any there should be, which passed to the general assignee under the insolvent act. Those creditors, who would gladly have accepted their proportion of the trust fund upon the terms proposed, but who, for want of notice, or from mistake or accident, were unable to comply with those terms within the year, and who have not done any thing since that time inconsistent with the offer held out to them by the creation of the trust, have an equitable right to be let in to share the fund at this time, upon the terms proposed.

A decree must be entered declaring their rights accordingly ; and the complainants, and all others who are in the same situation, will have an opportunity, at any time within six months, to come in before the master and establish their claims as creditors, and to comply with the terms prescribed in the creation of the trust. But before they are to be permitted to come in and establish their claims before their master, they must furnish him with their own affidavits, or other satisfactory proof, that they had not notice of the terms and conditions of, and the actual provisions made for them by the deed, in time to enable them reasonably to accept of the terms offered within the year, or they must show some other satisfactory excuse for not having come in within that time. And any of the creditors, who are entitled to a share of the fund, as well as the trustee and the assignee under the insolvent act, are to be at liberty to controvert those facts before the master, and to show that they are not entitled to come in as creditors, on the principles above declared; or that the amounts claimed by them are not justly due, or that they have received payment, either wholly or in part, out of other funds.


text:
    Dias vs. Merle and others.
    Where a party was directed to deposit certain books in the master’s office, with liberty to the adverse party to inspect and take extracts from such parts as related to certain partnership transactions, and in obedience to the order the books were deposited in the master’s office, with the parts thereof which did not relate to the partnership transactions sealed up, and during a temporary absence of the masterr the adverse party, who was inspecting the books, broke open the parts which were so sealed up, and which contained the private memoranda and remarks of the party who deposited the books, in relation to his private business transactions, it was held, that this act of the adverse party was a contempt of the court.
    It is the ordinary practice of the court, when books are directed to be produced for the inspection of the opposite party, to permit those parts to be sealed up which do not relate to the subject matter of litigation; and courts of record have uniformly protected suitors against an unwarrantable interference of the adverse party with rights of this description, by proceeding against the offender as for a contempt.
    This was an application to punish the complainant as for a contempt, committed by him in the master’s office ; and also to obtain a special order to protect the rights of the defendant in future. Both parties were directed to deposit certain books, in the. possession, with a master; with liberty the adverse parties to inspect and take extracts from such parts thereof as related to partnership transactions. Certain books of the defendant Merle were deposited with the master, with particular parts thereof, which did not relate to the matters in which Dias was interested, sealed up in the usual form. During a temporary absence of the master from the office, the complainant, who was inspecting the books deposited, broke open those parts which were sealed up, and which contained the private memorandums and remarks of the defendant Merle, in relation to his private business transactions.

      Murray Hoffman, for complainant.

      Julius Rhoades, for the defendant Merle.
   The Chancellor.

There can be no doubt that the misconduct of the complainant in breaking open the parts of the books which were sealed up in the master’s office, was, at common law, punishable as a contempt. (Burrow’s case, 8 Ves. 535, Bateman v. Conway, 5 Bro. P. C. 84.) Upon my first examination of the revised statutes, I was inclined to think that the section which defines criminal con-tempts, (2 R. S. 278, § 10.) had deprived the court of the power of punishing the improper conduct complained of here. But on further examination, I am satisfied this case is provided for, in the second and eighth subdivisions of the first section of the title relative to “ proceedings as for contempts, to enforce civil remedies, and to protect the rights of parties in civil actions.” (2 R. S. 534.) It was an abuse of the proceedings of the court; it was also a case in which the rights of the adverse party were materially involved. While the course of judicial investigation frequently requires a party to produce parts of his books in which the adverse party has an interest, for the inspection of the latter, it may frequently be of great importan-e to the former that his accounts and transactions with other persons should not be exposed to the examination of strangers, and particularly of an enraged adversary. Where his books are subjected to inspection, it is the uniform practice of the court to permit a party to seal up those parts which do not relate to the subject of litigation. (Gerard, v. Penswick, 1 Wils. Ch. R. 222. Cambell v. French, 1 Cox’s Ca. 288.) And it has been the practice of courts of record to protect suitors against any unwarrantable interference by the adverse party with rights of this description, by proceeding against the offender as for a contempt.

Although the complainant might not have been aware that he was subjecting himself to punishment, as for a contempt of the court, by secretely breaking open and examining these private entries of the defendant, there can be no doubt that he knew he was doing wrong. The fact that he had brought in his own books with a part thereof sealed' up under oath, in the same manner, and that he took advantage of the temporary absence of the master to effect an improper purpose, are strong circumstances against him. Besides, in consequence of a former complaint against him for making marks, &c. on the books, the order had in terms directed that he should only have the right to examine the books in the presence of the master, even as to those facts in which he was interested.

As this is a case in which the defendant has been put to expense for counsel fees, &c, beyond the amount of the taxable costs in consequence of this unjustifiable act of the complainant, an attachment must issue against him, unless he does within ten days after service of a copy of the taxed bill pay to the defendant Merle, or to his solicitor, his costs on this application, together with reasonable counsel fees as between counsel and client, to be settled and taxed with such costs by the vice chancellor of the first circuit. And to guard against any further abuse of the privilege, the complainant is not to be permitted to examine any part of the books, except in the presence of his own counsel and the master, during office hours; and he must allow and pay to the master, the usual fee for attending on a reference, for each day the master is compelled to attend personally on such examination. The parts of the books which have been unsealed must be sealed up again by the master, and the complainant must be prohibited from disclosing what is contained therein, to any person, and from using any information or extracts - obtained therefrom, in any way, without the written permission of the de- - fendant Merle, or the special leave of this court, upon pain of contempt.


text:
    Sailly vs. Elmore.
    Whatever will in equity discharge a surety, on a simple contract, may be pleaded as a defence to an action aganst him in a court of law.
    As the court of chancery had originally the exclusive jurisdiction in such cases, it will not relinquish its jurisdiction because the complainant may now have an adequate remedy at law.
    But if a suit at law has been commenced, and the defendant in that suit unnecessarily files a bill in chancery to set up a defence of which he might avail himself at law, the court may refuse to interfere by way of prelimina. ry injunction; or it may refuse costs to the complainant on the final decree.
    Where the creditor, without the consent of the surety, makes a valid and binding contract with the principal debtor to give him further time of payment, the surety is discharged.
    So he will be discharged by any arrangement between the principal debtor and the creditor, which operates'as a fraud upon the surety ; as where the money has been offered to the creditor, and he, without the consent of the surety, requested the debtor to retain it longer. So where the creditor fraudulently colludes with the debtor to conceal from the surety the fact Of the non-payment of the debt until the debtor becomes insolvent.
    But a mere consent of the creditor to a delay because the principal debtor has not the ability to make immediate payment, and without any new consideration, does not discharge the surety.
    August 2d.
    This cause was heard on bill and answer. The facts, as admitted in the answer of the defendant, were as follows : In December, 1827, the complainant executed a note to the defendant with M’Cotter & Grant, as their surety, for $362,50, payable in 90 days. When the note fell due, M. ■& G. represented to the defendant that it was inconvenient for them to pay the note at that time, and requested him to wait 60 or 90 days longer. The defendant promised to indulge them for the time they requested ; and that, in the mean time, he would not call on the complainant for payment; but no consideration was paid, or agreed to be paid, for this indulgence. In July, 1828, M. & G. again requested time, and promised to pay one or two hundred dollars on the note, in a few days. The defendant informed them that he did not intend to press them for immediate payment. The complainant made no inquiries, and received no information that the payment was deferred or that the note was unpaid, until June 1829, when he was called on for payment. M’Cotter & Grant, who were in doubtful circumstances when the note fell due, were at that time insolvent. Payment having been refused, a suit at law was commenced on the note, and the bill in this cause was filed to restrain the proceedings in that suit by injunction.

      H. Bleecker, for the complainant.
    The complainant’s contract with the defendant was, that if the note was not paid by M’Cotter & Grant when it fell due, then he, the complainant, would pay the note to the defendant. That the complainant signed the note as a mere surety, was known to the defendant. No notice was given to the complainant of the non-payment .of the note. It remained unpaid for a year after it fell due. Gross negligence, on the part of the creditor, in securing his debt from the principal debtor, will discharge the surety. (Duvall v. Trask, 12 Mass. R. 154. King v. Baldwin, 17 John. R. 391. People v. Jansen, 7 id. 332.) The complainant in this case was misled by the defendant. The conduct of the defendant induced him to suppose the debt had been paid. (Rathbone v. Warren, 10 John. R. 587.) An arrangement with the debtor, which puts the surety in danger of being made liable, discharges the surety, as an agreement with the maker of a note to delay the payment without the consent of the surety. (Pain v. Packard, 13 John. R. 174. People v. Berner, 13 id. 383. Powell v. Waters, 17 id. 176.) Where an actual injury results to the surety from the acts of the creditor, the surety is discharged. Hunt v. United States 1 Gall. C. C. U. S. R. 32, per Story, J. Reese v. Berrington, 2 Ves. jun. 543. English v. Darley, 3 Esp. N. P. R. 50, S. C. 2 Bos. & Pul. 61.)

      M. T. Reynolds, for the defendant.
    The complainant has a perfect remed at layw. Courts of law give the same relief in these cases as courts of equity. Mere delay will not discharge the surety. The creditor may lie by and see the principal debtor go to ruin, without enforcing the collection of his debt, and the surety will not, in consequence of this delay, be discharged, unless he had given the creditor notice to collect the debt from the principal debtor. The bill would have been bad on demurrer. The objection to it can now be taken ore terms. (Pabodie v. King, 12 John. R. 426. Fell on Guar. 200, and note.) It was decided in the case of Reynolds v. Ward, (5 Wend. R. 501,) that an agreement, without consideration, by the creditor with the principal debtor, enlarging the time of payment of a note, did not discharge the surety. An agreement with the principal debt- or must be valid and binding, and made upon sufficient consideration, in order to discharge the surety. (Philpot v. Briant, 4 Bing. R. 717, reported in 15 Com. Law. R. 126.)
   The Chancellor.

It is now settled that the same principles, which in this court are sufficient to discharge the surety, may be plead by him as a defence to an action, on simple contract, in a court of law. But as this court had originally the exclusive jurisdiction in such cases it is no objection to a bill filed here, at this time, that the complainant has an adequate remedy or good defence at law. In the language of Lord Eldon: “ This court will not allow itself to be ousted of any part of its original jurisdiction because a court of law happens to fall in love with the same, or a similar jurisdiction.” (Eyre v. Everitt, 2 Russ. R. 382.) If a suit at law is commenced in such a case, and the defendant in that suit unnecessarily files a bill here to set up a defence of which he may now avail himself at law, this court may refuse to interfere by way of preliminary injunction, or it may not give him costs on a final decree. But if he establishes his equitable defence here, this court cannot dismiss the bill for want of jurisdiction.

Where the creditor makes a valid and binding contract with the principal debtor to give him further time of payment, without the concurrence of the surety, it is a discharge of such surety. He will also be discharged by any arrangement or dealing between the principal debtor and the creditor, which operates as a fraud upon the surety. As if the tltoiiey had been offered to the creditor at the day it fell ¿tie, or afterwards, and he had without the consent of the surety requested the debtor to retain it longer, this would operate as a fraud upon the surety and discharge his liability. But a mere consent to the delay of payment because the principal debtor had not the ability to pay presently, and without any new consideration, does not discharge the surety. (Heath v. Key, 1 Young & Jer. R. 434, McLemore v. Pewell, 12 Wheat, R. 554.

If the complainant in this case had established the fact that Elmore had fraudulently colluded with M. & G. to conceal from him the fact of non-payment of the note, untij their circumstances became desperate, it would have discharged his liability. Such an arrangement would have thrown him off his guard, and thereby have prevented him from securing himself in due season. But here the complainant instituted no inquiry, and made no attempt to ascertain whether his liability was discharged or otherwise. Neither do I understand the answer as intending to admit that the defendant agreed to conceal from the surety the fact of non-payment. He promised only to delay proceedings against them, and not to call upon Sailly and thus indirectly to enforce the immediate payment of the demand through him. The creditor Was not bound to give the surety notice of the non-payment of the note. If there was an agreement to conceal from the complainant the fact that the note was still due and unpaid, the complainant should have filed a replication to the answer, and have established such fraudulent agreement by legal proof. The admissions in the answer do not go that length, and they afford no ground of equitable defence to the suit on the note.

The complainant’s bill must therefore be dismissed, with costs.


text:
    R. L. Perky vs. P. Perry.
    By the common law of this state, the court of chancery had no jurisdiction to decree a separation between a husband and wife, for cruel treatment, or on account of a mere canonical disability.
    A ¡marriage merely voidable is valid for all civil purposes Until its nullity has been pronounced by the proper tribunal; but by the common law the sen. teUce of nullity, When pronounced, renders the marriage void from the be. ginning.
    That part of the common law of England which renders a marriage contract absolutely void in certain cases, forms a part of the law of this state; and may be enforced by the appropriate tribunals independent of any statutory provisions.
    The cruelty which entitles the injured party to a decree df Separation, is that kind of conduct which endangers the life or health of the complainant, and renders cohabitation unsafe.
    Where a right is claimed as existing by the common law, which is incapable of enjoyment except by the direct interposition of a judicial tribunal to give the remedy, if no tribunal has been organized for that purpose by the law making power we may fairly presume that no such right exists. But if the right is expressly declared by the legislative power without creating or appointing any particular tribunal to administer the remedy the power must be exercised by some of the existing tribunals of the country.
    The 12th section of the act of March, 1824, authorizing the court of chancery to decree a separation from bed and board, on the complaint of the husband, was not repealed in the recent revision of the laws.
    July 19th.
    The bill in this cause was filed by the complainant against his wife to obtain a divorce a mensa et thoro. It stated that the defendant was in the constant habit of intoxication; that she contracted debts, in the name of her husband, for liquors, &c.; that, in her fits of passion and drunkenness, she committed acts of cruelty and violence upon him and his children; that she broke and destroyed his windows and furniture, and that of his neighbors; that on one occasion she attacked the complainant in his sleep, and gave him a blow which wounded his head ; and on another occasion she beat his children with clubs, and threw a billet of wood at his little daughter, which wounded the child and endangered its life. The bill also stated that the defendant threatened to poison the complainant, and actually procured arsenic for this purpose, and concealed it in her trunk, and that it was dangerous for the complainant or his children to live with her. The defendant demurred to the bill, upon the ground that the court had no jurisdiction to grant the relief prayed for.
    /. B. Scohs, for the complainant.

      W. C. Noyes, for the defendant.
   The Chancellor.

There is no doubt that by the law of England, as it existed at the time of our separation from that country, and as it still exists there, such conduct as is charged by the complainant in this bill, if not produced by his own misconduct, would be sufficient to entitle him to a. decree against his wife, in the proper court, divorcing her from his bed and board. Although the applications to the ecclesiastical courts in England for separation on account of cruelty, are generally on the part of the wife, yet all the writers on the subject admit the right of the husband to institute such a suit. (Oughton, tit. 193. 1 Black. Com. 441. Poynter’s Mar. & Div. 210.) , In the case of Kirkman v. Kirkman, in the consistory court of London, in 1807, (1 Hagg. Cons. R. 409,) Sir William Scott pronounced for a divorce from bed and board, in a suit promoted by the husband against his wife, for acts of violence and other cruel treatment on her part. I have before had occasion to say that divorces, even such as are only to release the parties from the obligation of cohabiting together, “ should never be allowed, except for the protection of the innocent party, and for the punishment of the guilty.” The common law has given to the husband sufficient power over the wife, to render the interference of a court unnecessary in all ordinary cases. But if a separation for cruelty aud violence on the part of the wife is to be decreed in any case, the facts stated in this bill' seem to present that case. The cruelty which entitles the injured party to a divorce, consists in that kind of conduct which endangers the life or health of the complainant, and renders cohabitation unsafe. (Poynter’s Mar. & Div. 209.) If the charges in this bill are true; if this defendant permits her passions so far to usurp the throne of reason, as to allow her to perpetrate such outrages upon his children; to attack and commit personal violence upon her husband in his sleep ; to break and destroy his property; to threaten his destruction by poison, and even to go so far as to procure a deadly drug for that purpose, not only his health, but even his life is in actual danger from her violence. Cohabitation with such a wife is certainly unsafe, notwithstanding the powers with which the husband is armed by the common law to restrain the violence of her passions, and keep her in due subjection to his lawful commands. Whatever may be the common law on the subject, the moral sense of this community, in our present state of civilization, will not permit the husband to inflict personal chastisement on his wife, even for the grossest outrage. And no man of feeling would ever think of resorting to such a remedy, except in the heat of passion, if it were expressly given to him by a public statute. It remains to be considered whether this court has any jurisdiction or power to afford the necessary relief to a husband in such a case.

It is insisted on the part of the complainant, that, independent of any statutory provision on the subject, this court has the power to decree a separation in such cases; that so far as relates to the civil remedies of the parties, it possesses all the powers which are vested in the ecclesiastical courts of England in matrimonial causes.

In Wightman v. Wigtman, (4 John. Ch. R. 343,) Chancellor Kent certainly did assume a jurisdiction which in England is at this time exercised exclusively by the ecclesiastical courts. In that case he made a decree declaring a marriage void, on the ground that the complainant was a lunatic at the time the marriage was celebrated. And the reasoning of the court in that case goes far towards establishing the doctrine contended for by the complainant here. In Ferial v. Gojon, (1 Hopk. R. 478,) Chancellor Sanford also made a decree declaring a marriage void, on the ground that the consent of the complainant thereto was obtained by fraud and terror, and that the marriage had never been consummated by cohabitation. The decision in the last case is put upon the ground that there is a jurisdiction in the court of chancery in England, concurrent with that of the ecclesiastical courts, to declare such a marriage void, on the ground of the duress and fraud; the latter being one of the general grounds of jurisdiction in the court of chancery. In the subsequent case of Burtis v. Burtis, (1 Hopk. R. 557,) which was a suit to annul a marriage contract, on the ground of the physical incapacity of the defendant, Chancellor Sanford decided that this court had not jurisdiction in such a case. That the law of England concerning divorces aud matrimonial causes, as the same was administered in the ecclesiastical courts of that country, was never adopted as a part of the law of the colony, and therefore did not become a part of the law of this state, at the time of our separation from the mother country.

That part of the ancient common law of England which rendered a marriage absolutely void, where either of the parties had not the legal capacity to contract matrimony, or where there was in fact no legal consent by one of the parties, the same having been obtained by force and fraud and never afterwards voluntarily acquiesced in, was undoubtedly brought to this country by our ancestors and formed a part of the law of this colony. In such cases, for all the substantial purposes of justice, the courts of common law and of equity in England had concurrent jurisdiction with the ecclesiastical courts. Although the other courts yielded to the courts Christian the exclusive jurisdiction to declare the nullity of the marriage by a direct proceeding between the parties, it was rather on the ground of convenience than from a want of power in the court of chancery to grant similar relief to the parties. The court of chancery and courts of common law always exercised the power to declare the marriage absolutely void, whenever the question came before them in any collateral proceeding. (Betsworth v. Betsworth, Styles’R. 10. Riddleson v. Wogan, Cro. Eliz. 858.) In those cases the sentence of the ecclesiastical courts does not dissolve the marriage, inasmuch as no lawful marrriage can have taken place. It merely declares the fact of marriage to be a nullity. (Poynter, 156.) In the case of Bowzer v. Ricketts, ( 1 Hagg. Cons. R. 214,) Sir William Scott says : “ The marriage act declares marriages in such cases to be ipso facto void. The sentence of the ecclesiastical court is declaratory only; it does not make them void.” In such cases, where the rights of the parties existed independent of any peculiar remedies which were entrusted to the exclusive cognizance of a particular court, it was competent for the superior courts of the colony to administer such relief as was consistent with their ordinary forms of proceedings in other cases, and such as was proper under the circumstances of each case. But I doubt whether this principle extends to any of that numerous class of cases in which the ecclesiastical courts were in the habit of dissolving the vinculum, of the marriage, on the ground of some pre-existing canonical disability; such as consanguinity, or affinity, within the prohibited degrees, physical incapacity, &c.

Chancellor Kent evidently thought some of those marriages were absolutely void, even if no sentence of nullity was pronounced ; but in general they are only voidable by the sentence of the appropriate tribunal. Poynter says : “ A marriage merely voidable is valid for all civil purposes, until by a sentence, its nullity has been pronounced; and when a marriage is voidable, on the ground of a canonical impediment only, the sentence of the court is interposed to annul it, as a state in which the parties cannot continue without endangering their souls’ health, and causing the profanation of matrimony.” (Poynt. Mar. & Div. 154.) In those cases, however, if a marriage defacto is annulled by the ecclesiastical court during the life of the parties, it renders it void from the beginning, and bastardizes the issue thereof; but if not so dissolved, the issue are legitimate. ( Elliot & Sugden v. Gurr, 2 Phil. Eccl. R. 16. Harris v. Hicks, 2 Salk. 548.)

Where the right claimed as a common law right is of such a nature that it cannot be enjoyed in any manner, except by the direct interference of a judicial tribunal to give the remedy, if no tribunal has been organized by the law making power for that purpose, we may fairly conclude the right does not exist. But whenever the legislature distinctly give the right, without creating or appointing any particular tribunal to administer the remedy, it is fairly to be inferred that they intended to vest that power in some of the existing tribunals of the country. As the right to dissolve a marriage defacto which was merely voidable, could only be exelrcised by the aid of the ecclesiastical court in England, andl as no such court was ever organized here, and no other court exercised any such jurisdiction for more than one hundred years, it may reasonably be presumed the right did ‘not exist ; and that this part of the law of England was never in existence in this colony. Such a jurisdiction, therefore, cannot now be exercised here, by any court, without the direct or implied sanction of the legislature.

The decision of Chancellor Sanford, in Burtis v. Burtis, is therefore entirely consistent with that of his predecessor, in Wightman v. Wightman, before referred to, so far as relates to the point actually before the court in the last mentioned case. In the one case, the marriage was absolutely void ; and this court, in the exercise of its ordinary jurisdiction, had a right to remove the apparent obstruction to the wife’s contracting matrimony with any other person. In the other case, there was a good marriage defacto; and the court very properly decided that the power to dissolve such a marriage did not then exist in this state, except by the interference of the legislature.

The principles on which Chancellor Sanford’s decision rests, appear to be equally applicable to the case now under consideration. And I conclude that this court has no power to decree a separation between these parties on the complaint of the husband, unless the powers conferred upon it by the 12th section of the act of April, 1824, (Laws of 1824, ch. 205, p. 249,) are still in force, as to this case. Such was the opinion expressed by Chancellor Kent, in Van Vechten v. Van Vechten, ( 4 John. Ch. R. 501,) notwithstanding what he had said as to the jurisdiction of the court in matrimonial causes, in Wightman v. Wightman.

The general repealing act of December, 1828, (2 R. S. 779, § 5,) declares that the repeal thereby of any statutory provisions shall not affect any act done, or right accrued, or established, &c. previous to the time when such repeal shall take effect; but every such act or right, &c. shall remain as ■valid and effectual as if the provision so repealed had remained in force. If I have succeeded in showing that the right and the remedy, in a case of this kind, were so blended together that the one could not exist without the other, the abrogation of this remedy necessarily destroyed the right. As the acts complained of in this case took place previous to January, Í830, when the repealing act took effect, if the right of the 'husband to a decree of separation ever existed it must have accrued before that time; and the right may still be enforced, even though this provision in the law of April, 1824, were embraced in the repealing act.

But the counsel for the complainant also thinks he has discovered that the act of 1824, so far as it relates to this subject, is not in fact repealed, and that it remains in full force; subject however to the modifications contained in the 11th and 12th sections of the repealing act. The revisers, and probably the members of the legislature who assisted in the revision of the laws, intended to repeal and abrogate this provision, in favor of the husband, contained in the act of April, 1824. Believing this to be the fact, I have carefully examined the several provisions of the repealing law, under a hope of finding some clause which, either in terms or by implication, repeals that provision, and thus effectuates the probable intention of the members of the legislature. But I regret the necessity which compels me to say that the counsel for the complainant is right; and that the 12th section of the act of 1824 is not repealed.

This section is found at the end of a local statute, altering the terms of the county courts in some few of the counties. It was probably placed there for the purpose of procuring its passage through the legislature, without comment or examination, just at the close of the session. This singular course, of coupling it with a local act to which it had no relation, in order to get it through the legislature originally, has probably caused it to be overlooked a second time, in preparing the repealing act; and it is thus retained as a part of the existing law of the state, contrary to the probable intention of the legislators who revised the laws. The title of the act gives no intimation that any such principle is embraced in its provisions. The act itself is therefore not set out by its title in the repealing law, as was done in relation to most of the old statutes which were revised, or were intended to be abrogated and repealed. But the first eleven sections of the act are repealed by a sweeping clause, embracing all statutes and parts of statutes prescribing or altering the times of holding the county courts. The general clause repealing “all < statutes and parts of statutes consolidated and re-enacted in the revised statutes, or repugnant to the provisions contained therein,” does not reach this part of the act of 1824 ; because it is not repugnant to any provision of the revised statutes, but was simply intended to be1 left out of the revision, and to be repealed. It is referred to in the revisers’ list of acts “ omitted,” &c. which was submitted to the legislature near the close of their labors, as a section intended to be repealed, (page 1 & 121 of list:) but by accident it was overlooked in preparing the details of the repealing law. And by v the operation of the 10th section .of that act, the general law of 1813, relative to divorces, which is repealed by its title, as well as by the operation of the general clause repealing all statutes consolidated and re-enacted in the revised statutes, remains unrepealed for all-the purposes of this provision in favor of the husband.

The demurrer in this case must be overruled, and the defendant must put in her answer to the complainant’s bill within the time prescribed by the 49th rule. As she has no separate property, no costs are allowed against her.


text:
    Grandin and others vs. Le Roy & Smyth.
    After a defendant has answered a bill in chancery, and submitted himself to the jurisdiction of the court without objection, it is too late to insist that the complainant has a perfect remedy at law; unless the court of chancery is wholly incompetent to grant the relief sought by the bill.
    It is no objection to an application to dissolve an injunction, on bill and answer, that a replication has been filed.. But if the testimony has been taken in the cause, the court will order the application to stand over until the hearing on the merits, unless special circumstances render delay improper.
    Where the endorsers of an accommodation note lend their names to the drawer, without any limitation or restriction as to the manner in which the note is to be used, he has a right to apply it to the payment or security of an antecedent debt; or to sustain his credit in any other way.
    August 2d.
    The bill in this case was filed to restrain the defendant Le Roy from proceeding at law to recover a draft drawn by I. Field on the defendant Smyth, and endorsed by the complainants. The draft was transferred to Le Roy in security for an antecedent debt of Field ; and for which Smyth was also liable. After a replication had been filed to the answers of the defendants, Le Roy applied to the vice chancellor of the seventh circuit for a dissolution of the injunction; but the application was denied with costs. From this decision Le Roy appealed to the chancellor.

      D. S. Jones, for the appellant.

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

The objection that the complainants had a perfect remedy at law, came too late. The defendant should have taken that objection either by demurrer to the bill, or by insisting on it in his answer as a bar. After a defendant has put in an answer, to a bill in chancery, submitting himself to the jurisdiction of the court without objection, it is too late to insist that the complainant has a perfect remedy at law; unless this court is wholly incompetent to grant the relief sought by the bill. This point was expressly decided by Chancellor Jones, in Smith v. Haviland & Field, in June, 1827, which is not reported, but of which I have a note. (See also 4 Cowen’s R. 727, and the cases there cited.)

It is no objection to an application to dissolve an injunction on bill and answer, that a replication has been filed. If, indeed, the application is delayed until after the taking of the proofs, the court will not then go into an investigation of the whole merits of the cause on such an application, unless there are very particular reasons which would render delay improper. But the court will in such case order the motion to stand over until the hearing. In this case the motion was denied, with costs. I presume therefore the vice chancellor intended to decide the question on the merits, as presented by the bill and answers.

On an examination of the facts, as they are stated in the bill, I do not think they raise the question, whether an accommodation note made and endorsed for a particular purpose and afterwards negotiated for another purpose to a third person, with notice, or in payment or security for an antecedent debt, can be collected against the endorser.

The complainants allege that they endorsed this draft, as sureties merely, under a supposition that it would be discounted at the bank; and that the money was to be laid out in the purchase of produce, to be sent to New-York to meet the payment. But they do not allege that Field, or any other person, made any such representation to them to induce them to become the endorsers ; or that any fraudulent artifice or device was made use of to deceive them as to the real object for which the draft was intended. On the other hand they say they have been informed and believe that Field’s original intention, in making the draft and procuring their endorsement, was to raise money for the use of Le Roy; and to be applied in part payment of the debt due to him. It is not even alleged that such intention was designedly concealed from them. Their supposition, as stated in the bill, is one which the defendants could neither admit or deny in the answer, as it was confined to the complainants’ own bosoms at the time. It also is one which it seems impossible to establish by any legal proof. If they lent Field their endorsement, without any restriction as to the manner in which it was to be used, and without inquiry, he had a right to use it, in the way he has, to pay or secure an antecedent debt; or to sustain his credit in any other way which was not illegal.

This case appears to be like that of the Bank of Rutland v. Buck, (5 Wend. R. 66 ;) where the holders of an accommodation note were permitted to recover against the endorsers, although it was received in security for a previous debt. The fact that the bank had refused to discount it, does not alter the case. (The Bank of Chenango v. Hyde, 4 Cowen’s R. 567.)

The order of the vice chancellor must be reversed, with costs ; and the injunction is dissolved.