text:
    Cornell vs. Bostwick and others.
    March 6.
    The defendant in a suit in chancery is not entitled to a bill of particulars of the complainant’s demand previous to putting in his answer; the forms of the court rendering a bill of particulars unnecessary.
    Where a complainant seeks to recover an unliquidated account against the defendant upon a general allegation of indebtedness, without any specification of the items of the account, the court at the hearing will not go into the items, but will refer it to a master to take the accounts between the parties; on which reference the defendant will be permitted to make any legal or equitable defence which he may have to the several items of the account.
    The bill in this cause was filed against the personal representatives of W. Bostwick, deceased, and against his surviving partner, to recover the amount of certain notes executed by the partnership to the complainants; and also to recover an alleged balance due from the partnership to the complainants on account. The ground upon which the complainants claimed the aid of this court was the alleged insolvency of the surviving partner, in consequence of which they had no remedy at law. The defendants presented a petition, stating that they were advised by counsel and believed that the representatives of Bostwick could not, with justice and safety to his estate, put in an answer to the complainants’ bill, without a specification of the claims and demands of the complainants, and full copies of their accounts against the partnership and against Graves, the surviving partner. The petitioners therefore prayed that the complainants might be compelled to furnish a full specification or copy of their claims against the estate of Bostwick, and copies of the accounts between the parties, including credits.

      JO. Gardner,

    for the complainants, insisted that the defendants were not entitled to a bill of particulars.

      G. B. Throop,

    for the defendants. If this suit was at law, the order for a bill of particulars would be granted upon showing the facts set forth in the complainants’ bill. (Adlington v. Appleton, 2 Campb. Rep. 410. Mitchell v. Wright, 1 Esp. Rep. 280.) The case in 15 John. R. 222, is in our favor, and sustains the rule laid down in the two cases cited. The defendants are executors and trustees. I consider this suit analogous to a suit at law, both as to the cause of action and the manner of prosecution. In regard to the latter particular, it must be remembered that the complainants have waived an answer on oath, which has deprived the defendants of a right which in many cases in chancery decides the controversy. The defendants’ oath is equivalent to one witness. The revised statutes give the power to a complainant, to take from the defendant this advantage, and thus have changed a fundamental principle in the court of chancery. Before this alteration in the law, the complainant could only have attained such an object by an application to the court, when it would have been competent for the defendant to have appeared and asked, as terms, what our motion seeks. But further, the matter of the answer has changed, and the new rules of chancery based upon the statute, provide that no exceptions to the sufficiency of the answer can now be taken by the complainant. Thus is the great and peculiar characteristic of a suit in chancery at once destroyed, and a defendant may now put in the general issue as at law, or a simple denial of the complainant’s allegations, upon which every thing is to be maintained upon proofs. Motions like the present, since the alteration of the law, will be entertained. A suit in chancery has now become identical in its essential features with a suit at law ; and surely the equitable principles which have found favor in a foreign tribunal at law will more readily prevail at home in a court of equity. The principle having changed in the latter court, the practice must be changed accordingly. I however find cases sufficient to warrant my application, even under the old practice, before the essential change referred to; and they are cases where the applicants asked more than the defendants do here. In the case of The Princess of Wales v. E. Liverpool, &c. (1 Swanston, 114, fyc.) the defendant was advised that it was necessary, in order that his answer might fully meet the case in the bill, to have an inspection of certain papers of the complainant, and an order was made that he should not be compelled to answer till a fortnight after the production thereof. This case establishes all that we contend for. (See also 2 Hovenden’s Suppl. to Vesey, jun. p. 39; Note to Wiley v. Pistor, 7 Ves. 411.) There it was held that this motion would be entertained without putting the defendants to a cross bill. (See also Pickering v. Rigley, 18 Vesey, 484.)
   The Chancellor.

I have not been able to find any case in which the court of chancery has made an order for a specification of the complainant’s demand, in the nature of a bill of particulars at law. Upon the first view of this question, I was inclined to think this was a case in which the defendants were entitled to a specification of the date, amount, and particular nature of each item of the account claimed against them under the general charges in the bill; on the same principle which governs courts of law in requiring the plaintiff to furnish a particular of his demand upon a general declaration. But upon further examination and reflection; I am satisfied such a course is not necessary for the attainment of justice, and that the adoption of such a practice would in many cases lead to great and unnecessary delay and expense. The forms of pleading in this court are such as to furnish to the defendant, in most cases, all the information as to the particular nature of the claim made against him which can be necessary to enable him to meet it by an appropriate defence. And if, as in this case, the complainant seeks to recover a book account against the defendant, upon a general allegation in the bill of indebtedness, and without a specification of the items, the court at the hearing will not undertake to settle the account. It will in that case be referred to a master, with liberty to the defendant to introduce new testimony, or to make any legal or equitable defence which he may have to each and every item thereof. The defendant will there be also permitted to examine the complainant on oath as to any discounts or payments which are proper to be allowed. And if the complainnant has put the defendant to any unnecessary trouble or expense, by refusing to furnish the necessary information as to the nature and extent of his demands, or as to the payments which have been received, the court will take that into consideration in deciding upon the question of costs.

■ There can be no pretence in this case for calling upon the complainants to furnish copies of the accounts which were settled by the partners in the life time of the testator, and for which the notes in question in this cause were given; as there is no allegation in the petition that any mistake occurred in those settlements. The petition of the defendants must therefore be dismissed. And as it is not alleged by the petitioners that they have ever asked for a copy of the accounts, or for an inspection of the books of the complainants in relation thereto, they must be charged with the costs of opposing this application.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Wilder and others vs. Keeler and others.
    March 20.
    tinder a decree, upon a creditor’s bill, for the creditors to come in and prove their demands, it is a matter of course to permit a creditor to come in and prove his debt at any time before the fund is actually distributed and paid out, upon his showing a sufficient excuse for not coming in before the master, and upon payment of all the costs produced by the delay.
    After the filing of the master’s report, a creditor who has neglected to come in in time, cannot have an ex parte order permitting him to go before the master and prove his debt; but he must give notice of his application to the solicitors of the creditors who have already proved their claims, and to the original parties in the suit.
    Neither a party to the suit nor a stranger, will, after the filing of the master’s report, be permitted to purchase a demand against the estate, which the owner had neglected to establish, and to prove the same before the master, unless there is a surplus of the fund.
    A party who acquires an entirely new right or interest in the subject matter of the suit, by purchase, pending the litigation, must bring such right or in- ■ terest before the court by a supplemental bill, or by an original bill in the nature of a supplemental hill.
    A purchaser of the rights of one of-the parties to a suit pending the litigation, will not, without the consent of the other parties to the suit, be permitted to come in and take a part in the proceedings in the cause, unless he makes himself a party by filing a supplemental bill.
    This was a creditor’s bill for the settlement and administration of the real and personal estate of Gilbert F. Lush, deceased ; and the usual decree was entered for an account of the estate and for the creditors to come in and prove their demands. Under this decree debts were proved before the master to an amount far exceeding the funds belonging to the estate. After the filing of the report and the confirmation thereof, with the exception of some particular parts to which objections had been taken and argued before the court, J. Wright, one of the complainants, purchased and took an assignment of a debt which had not been claimed before the master. He now pre- . eented a petition asking to be permitted to come in and prove that-debt, so that he might be entitled to a rateable proportion of the fund. The application was opposed by several of the creditors who had come in under the decree and established their claims against the estate.

      J. Edwards, for the petitioner.

      King 4* -B. S. Wood, for the opposing creditors.
   The Chancellor.

By the practice of the English court of chancery it appears to be a matter of course to permit a creditor to come in and prove his debt at any time before the fund is actually distributed and paid oilt; upon a sufficient excuse shown for not coming in before the master in due season, and upon payment of all the costs which have been produced by the delay. In such case, however, he must pay the expense of proving his debt before the master. In the case of Angell v. Hadden, (1 Mad. Rep. 529,) Sir Thomas Plumer permitted a creditor to come in and prove his debt, after the money had actually been apportioned among the other creditors ; it not having been paid over to them by the accountant general. And in the case of Gillespie v. Alexander, (3 Russ. R. 130,) the master of the rolls permitted a creditor to come in' and prove his debt even after a part of the distributees hadTreceived their shares. Although upon appeal from his decree it was reversed, so far as it went to charge the whole debt upon those shares of the legatees which remained in court, Lord Eldon did not question the propriety of permitting the creditor to come in and prove his debt, even at that late period. It appears by some of the English cases that it is the practice there to permit" the creditor to take an ex parte order to go before the master and prove his debt. The same course was adopted in the case of Mason v. Codwise, (6 John. Ch. Rep. 184;) but the regularity of that proceeding was questioned, and was finally settled by a stipulation between the parties. Within the last two or three years, however, this court has repeatedly decided' that an ex parte order is improper; and that the creditor applying for leave to prove his ‘debt, after the filing of the master’s report, must give notice of the application to the solicitors of the creditors who have established their claims before the master, as well as to the original parties in the suit. Such notice has been given in this case. And if Peters, the creditor, had not assigned his debt, and had applied within a reasonable time after he was informed his debt had not been proved before the master, the application would have been granted.

To the application now made there are some objections of a technical character, as well as those which go to the merits of the application. This petitioner is before the court as one of the original complainants claiming a specific debt against the estate of Lush. And as a general rule, a party thus situated, who acquires an entirely new right or interest in the subject matter of the suit, by purchase, pending the litigation, should bring that right before the court by a supplemental bill, or by an original bill in the nature of a supplemental bill, to have the benefit of the proceedings in relation to such newly acquired right or interest. Neither will the court permit a purchaser of the rights of one of the parties pending the litigation to come in and take a part in the proceedings in the cause without a supplemental bill, unless by the consent of the other parties to the suit. (Bozon v. Bolland, 1 Russ. & Mylne's Rep. 69; Foster v. Deacon, Mad. & Geldart's Rep. 59.) Although the decree is in favor of all the creditors who may elect to come in and prove their debts under the same, it does not follow that a stranger or even a party to the suit may afterwards buy up the claims of those creditors and come in of course under the decree.

Independent of these technical difficulties, I think it would be inconsistent 'with public policy, unless there was a surplus, to permit the parties to the suit, or strangers, after the master has made his report, to buy up claims against the estate, which the owners of those claims had neglected to prove before the master, and which perhaps they might not be disposed to prosecute on their own account. The purchase of the claim in this case was particularly objectionable; because it was purchasing a chose in action, as to which there must necessarily be litigation between the assignee and some particular classes of the creditors who had come in under the decree. As this is an application addressed to the discretion of the court, I cannot in the exercise of a sound discretion, establish a precedent which will have a tendency hereafter to encourage a speculation in disputed claims; when perhaps the holders of those claims would never think of prosecuting them on their own account, or at their own risk in respect to the costs. Although Peters, in his affidavit annexed to the petition in this case, swears he had intended to appear before the master and prove his demand, he gives no reason why he did not make an application for leave to come in during the period of seventeen months which elapsed between the filing of the master’s report and the sale of his demand to this petitioner. Neither does he allege that he ever had any intention to make any such application as the present, or to go into this litigation on his own account, after he had ascertained there was to be a con-' test between the creditors who had come in and established their claims before the master, as to the final disposition of the fund.

The petition must therefore be dismissed.

        See Houlditch v. Lord Donegall, Beatty’s Oh. Reports, 405.


text:
    Wilder and others vs. Keeler and others.
    Equitable rules are adopted by the court of chancery in the administration of legal assets, except in cases where the law has given an absolute preference to one class of creditors over another.
    Where there are both legal and equitable assets, and a creditor, having a preference as to the legal assets, has been partially paid out of such assets, he cannot receive any share of the equitable assets until.the other creditors have received sufficient to place them upon an equality with him • and then all the creditors will be paid rateably out of the assets which remain.
    Upon the death of one of the partners, a joint creditor of a partnership has no . claim for the payment of his debt out of the separate estate of the deceased partner until all the separate creditors of such partner have been paid their demands out of his estate.
    So the creditors of the individual partners have no claim upon the partnership property until all the partnership creditors are satisfied.
    If the surviving partners are insolvent, the joint creditors can, in chancery, claim satisfaction out of the separate estate of the deceased partner after payment of the debts due to his separate creditors.
    Where there is a joint debt, but there never was any joint fund, and the joint creditor looked originally to the separate property of the joint debtors respectively for the payment of his demand, and, upon the death of one of the debtors, the survivor is insolvent, and the fund to be distributed in chancery consists of equitable assets, the joint creditor will be permitted to come in upon the fund with the separate creditors of the deceased debtor, at least for one half of his debt; but if the assets are legal, the separate creditors cannot be deprived of their legal preference.
    March 20.
    Creditors of a partnership can claim their entire debt out of the partnership fund, although they have a security from third persons who sustain the character of sureties for the partnership.
    The sureties in such case have an equity that the creditor should for their indemnity prove his demand, and collect it if possible, against the estate of the principal debtors.
    Where some of the creditors of a partnership have obtained satisfaction of part of their debts out of the joint estate, they will not be permitted to come in upon the equitable assets belonging to such estate, rateably with the other creditors, who have received nothing, until the last mentioned creditors have received sufficient out of the estate to put them all upon an equality.
    Where one of several partners is not only jointly liable for a joint debt, but is also separately liable as endorser for the firm, his separate estate as to such debt is to be considered as legal assets, and must be [applied in payment thereof, in preference to the joint debts due the other creditors ; but the joint estate being primarily liable, that must be first applied towards the payment of such debt.
    The bill in this case was filed by the complainants in behalf of themselves and the other creditors of G-. F. Lush, deceased, against his heirs and personal representatives for an account and distribution of his personal effects, and for a sale of his real estate for the payment of his debts. The estate was insolvent to a large amount, principally on account of debts due from the partnership between himself and Edwin Jessup and Henry Vandenburgh, trading under the name of “ Edwin Jessup.” Debts to a considerable amount were due from the decedent individually, one of which was for money received by him under the decree of one of the equity courts as the. guardian of infants in a partition suit. Some few debts were also due from him jointly with H. Vandenburgh. Lush died in December, 1828, leaving his two partners him surviving; and leaving in their hands partnership effects to the amount of twenty or thirty thousand dollars. Shortly after the. death of G. F. Lush, Jessup and Vandenburgh stopped payment; and Jessup, with the assent of Vandenburgh, assigned the greatest part of the partnership effects to D. & B. Wood, in trust, to pay certain creditors of the firm of Edwin Jessup. On the coming in of the answers of the defendants, a decree was entered in the usual form, referring it to a master to take an account of the personal estate, and of the sitúatian and value of the real estate, with the usual notice to the creditors of the decedent to come in and prove their debts before the master. Under this order the master received proof of debts due from the firm of Edwin Jessup to the complainants, and to several other persons not provided for in the assignment to D. & B. Wood. Also for two or three debts due from Lush and Vandenburgk, jointly, as well as of the separate debts of Lush, which were due from him individually. It also appeared by the proceedings in another suit that the present complainants, and others who had come in and proved their debts before the master, were proceeding as judgment creditors of the surviving partners of the firm of Edwin Jessup, to reach the residue of the partnership property not assigned to D. & B. Wood; apd that they were also seeking to set aside that assignment, on the ground that it had not been executed by both of the surviving partners, aud also by the administrator of the decedent. The Farmers and Mechanics’ Bank held several notes due from the partnership, endorsed or secured by the friends of the partners, which notes the bank claimed the right to prove, under the decree, for the benefit of those persons who stood in the situation of sureties. The complainants and other creditors resisted the proof of these demands, on the ground that they were secured to nearly their full amount by the assignment to D. & B. Wood, a part of which amount had actually been paid. It appeared by the testimony of D. Wood, before the master, that 42 per cent, of the principal of the notes had been paid out of the funds assigned, and that there would probably be enough of the fund to pay 85 per cent, of the principal and interest, including what had already been paid. The master deducted the amount which had actually been paid upon these debts out of the assigned fund, and permitted the bank to make proof for the residue, reserving the question as to what they were to receive on a final distribution for the decision of the court. Some of these notes had been endorsed by G. F. Lush in his individual capacity. A debt was allowed by the master in favor of B. Osborn & Co., although it appeared that another distinct debt to that firm was provided for by the assignment. The complainants excepted to so much of the report as admitted the debts of the Farmers and Mechanics’ Bank to proof, and also to the proof of the debt of B. Osborn & Co. The cause was heard upon the master’s report, upon the exceptions, and upon the equity reserved. In the mean time an order was made for the sale of the estate, and to bring the money into court to abide the decree which should be made therein.

      J. Edwards, for the complainants.

      H. Bhecker, for the Farmers and Mechanics’ Bank.

      B. R. Wood, for B. Osborn & Co.
   The Chancellor.

I have bestowed much time upon the examination of this case, with a view to settle the complicated equities between these creditors upon the general principles which govern this court, and consistent with the rules laid down in adjudged cases. Previous to the decision of Chancellor Kent, in Thompson v. Brown, (4 John. Ch. R. 619,) I supposed it was well settled that in this court legal assets must be distributed according to the common law, in a due course of administration, and that the court only refused to give a preference to one debt over another of the same class; that is, that all the judgments against the decedent which were not, at law, a lien upon the fund to be distributed, must be paid in the first place, but rateably only, and without regard to the time in which they were entered ; and debts of the several other classes in the same manner ; that it was only judgments or decrees obtained against the personal representatives, which gave the creditors, obtaining such judgments, a privilege over other creditors whose debts were originally of the same class. I supposed this was the meaning of the usual decree for the payment of the debts in a due course of administration, and without preference to any; and that the expression, “ without preference to any,” only meant without that preference which the personal representative, or heir at law, had a right to give to debts of a particular class over other debts of the same class, previous to the commencement of a suit against him. As the principles of that decision are now incorporated into the revised statutes, (2 R. 8. 87, § 27,) it is not necessary in this case, and may not be in any other, to express an opinion as to the law as it existed when that decision was pronounced. Here were no judgments against G. F. Lush, and there were no specialty creditors, unless he had given a bond to the equity court for the faithful performance of his trust as guardian of the infants in the partition suit. Whether he had given such bond or not, does not appear from the report of the master. But I believe, as the law then stood, the guardian ad litem in the equity court was not compelled to give a bond and security. If the fund in this case could be considered equitable instead of legal assets, the principles adopted under the English bankrupt laws would form a proper guide for the equitable administration of the fund. Equitable rules also are adopted by this court in the administration of legal assets, except so far as the law has given an absolute preference to one class of creditors over another. Thus, if-there are both legal and equitable assets to be administered, although this court cannot deprive a creditor of his legal preference, over creditors of a different class, as to the legal assets, yet if he has been partially paid out of such assets, he will not be permitted to receive any share of the equitable assets until the other creditors have received sufficient to put them upon an equality with him. And when that object has been accomplished, all the creditors will be entitled to come in, upon the assets which remain, for the payment of the residue of their debts rateably. (Morrice v. The Bank of England, Cases Temp. Talbot, 220.)

One of the leading principles in the administration of the English' bankr upt laws is, that a joint creditor of the partnership shall not be permitted to prove his debt against the estate of an individual partner until all the separate creditors of that partner have been paid out of his estate. On the other hand, the creditors of the several partners cannot claim a dividend out of the joint estate until all the partnership creditors are paid, and then they are permitted to come in upon the surplus. (Ex parte Crowder, 2 Vern. 706. Ex parte Clay, 3 Ves. 238. Ex parte Barnard, 1 Glyn. & Jam. Rep. 309.) This is precisely the legal rule which would control the distribution of the funds belonging to the respective estates, upon the death of an individual partner, as in this case. It is well settled that the representatives of the deceased partner cannot be sued, at law, for the partnership debts, but that the suit must ^ brought against the survivors, into whose hands the partnership effects pass by surviorship for the payment of those debts. The representatives of "the deceased partner are only entitled to their share of the surplus ; and that share alone can be reached by his separate creditors, either at law or in equity. On the other hand, the separate estate of the deceased partner, in the hands of the personal representatives, and the real estate descended to the heirs at law, are legal assets, which the separate creditors only can reach by a suit at law, against the administrator or the heirs. It is true the joint creditors, upon an allegation of the insolvency of the surviving partners, have an equitable right to come into this court to compel a satisfaction of their debt out of the estate of the deceased partner. This, however) is an equity existing only against the heirs and representatives of the decedent, but not against his separate creditors. If, in the present case, there is no possibility of getting any thing from the surviving partners, and the joint creditors have received nothing on account of their debts since the death of Lush, then indeed the equities of the joint and separate creditors may be equal. But even in such a case this court has no power to deprive the separate creditors of their prior right fo these legal assets at law. For, where the equities are equal, the legal right must prevail. This point is not without authority, although I have been surprised that so little* is to be found in the books in relation to a question which must have arisen so frequently.

In Ex parte Elton, (3 Ves. R. 240,) Lord Rosslyn, in discussing the right of a separate creditor to come in upon the joint estate, says he has always understood it as settled by a great variety of cases, not only in bankruptcy but upon general equity, that the joint estate is applicable to partnership debts, and the separate estate to separate debts. In Gray v. Chiswell, (9 Ves. 118,) under a decree for administering the estate of a deceased partner, Lord Eldon followed the rule in bankruptcy, and held that the creditors of the joint estate, which was insolvent, could not come in for a share of the sepárate estate of the decedent until the separate creditors had been paid. It is true that in the recent case of Cowell v. Sikes, (2 Russ. R. 19,) Lord Eldon, by consent of parties, after he had resigned the seals, and in opposition to the decision of the late Lord Gifford, master of the rolls, permitted a joint creditor to prove his debt against the separate estate of one of the joint debtors who had died after interlocutory judgment obtained against him at law. Even in that case, however, the deliberate judicial opinion of Lord Gifford is entitled to full as much weight as the extra judicial authority of the late lord chancellor. It is indeed a little singular that Lord Eldon should have arrived at such a conclusion, even under the peculiar circumstances of that case, after the surprise he had expressed a few years before, that courts of equity ever should have given a remedy against the estate of a deceased debtor where the creditor had neglected to secure a legal right by a several as well as a joint contract. (See Kendall, Ex parte, 17 Ves. 519.) I cannot, however, concur with his lordship in the expression of surprise at the adoption by the court of chancery of such a plain and obvious principle of equity, so far as regards the joint creditor and the representatives of the decedent. I have only been surprised that the principle had not been adopted by some of the learned and distinguished judges who adorned the English court of chancery, at a much earlier period. But the case of Cowell v. Sikes, even if regarded as good authority against the opinion of Lord Gifford, does not in reality conflict with the decision of Lord Eldon, in Gray v. Chiswell, made twenty four years previous. In the one case there was originally not only a joint debt, but also a joint fund for the payment thereof. In the other there was only a joint indebtedness; but the debtors were not partners, and there never was a joint fund out of which the debt could have been collected. It must therefore have been the original understanding of the creditors, at the time that debt was contracted, that in case of default in payment, they were to look to the separate property of the debtors respectively for the payment of their demand. In.such a case, if the fund to be distributed was equitable assets, and the survivor was insolvent so that nothing could be obtained from him, it would be a matter of course to permit the creditors to come in upon the fund with the separate creditors of the decedent, upon the footing of equality, at least as to one half of the debt. But if the fund was legal assets, Lord Gifford was right in refusing to permit the petitioners to deprive the separate creditors of the preference which had been given them by law. In the case now under consideration there was, at the death of G. F. Lush, a large joint fund belonging to the partnership, out of which the joint creditors were entitled to a priority of payment, and out of which several of the joint creditors who have -come in under this decree have actually secured a portion of their debts. Nothing but an unbending rule of law should, under such circumstances, induce the court to permit them to come in for the residue of their debts, rateably, with the separate creditors.

The amount of the fund which will remain after paying tire separate creditors, being a fund which could not be reached at law by the joint creditors whose remedy survived against the surviving partners alone, must be considered in the nature of equitable assets, and must be distributed among the joint creditors upon the principle of this court that equality is equity. In the application of this principle reference must be had to the situation of the parties at the death of G. F. Lush. Any security which these creditors then held belonging to the partnership or principal.debtors, must be first applied to the payment of their respective debts, as far as it will go ; and such creditors will then be permitted to come in for the residue of those debts, upon terms of equality with the other joint creditors upon this equitable fund. (Exparte Blackburn, 10 Ves. 204. Ex parte Reid, Buck’s Cas. 239. Ex parte Rathbone, 3 Mad. R. 134.) The creditors are, however, entitled to prove for their whole debts, notwithstanding any securities they may have from third persons who stand in the situation of mere sureties for the partnership. (Ex parte Goodman, 3 Mad. Rep. 373. Ex parte Parr, 1 Rose's R. 76.) The sureties in such a case have an equity that the creditor should prove his demand against the estate of the principal debtors and against the separate estate of each, as far as it can be done for their indemnity. It is therefore the duty of the bank, in this case, to obtain what it can from the estate of G-. F. Lush, as one of the partners, notwithstanding it has the collateral security, or subsequent endorsements of third persons standing in the situation of sureties for the firm and for the several partners. But those creditors of the joint estate who have obtained security or satisfaction for any part of their debts out of the joint estate since the death of Lush, will not be permitted to come in rateably upon these equitable assets, with the other joint creditors who have obtained nothing) nor until the last mentioned creditors have received sufficient out of the estate to put them all upon the terms of equality.

Applying these principles to the claim of B. Osborn & Co. it follows that that company is not entitled to come in upon terms of equality with those creditors of the partnership who have received nothing from the company funds since the death of Lush. It is true B. Osborn & Co. have received nothing on account of the particular debt which they proved before the master. But in equity it can malee no difference whether the claim of a creditor against the estate consisted of several distinct items of debt, or was all embraced in one note or account. If these creditors have received the whole or the greater part of one of their demands, out of the funds which were primarily liable for the payment of the partnership debts, their other demands should be postponed until the other creditors have received an equal proportion of the whole of their demands also. If these creditors wish to come in upon the residue of the fund which may remain after payment of the separate creditors of Lush, it must be referred back to the master to ascertain the whole amount of all their demands, including interest thereon up to the date to which interest is cast in the present report, and also to report the amount wdiich has been paid or secured on account of those demands, out of the partnership funds, since the death of Lush ; the amount of such security to bo ascertained by a sale thereof, as hereafter mentioned. As it appears, however, that the fund assigned to D. & B. Wood,. for the payment of certain preferred creditors of the company, is in litigation between them and the present complainants and other creditors who have come in under this decree, nothing can be paid to any of those creditors until it is ascertained by the result of that litigation which party is entitled to that fund. The shares of the creditors who have received nothing, and who cannot in any event receive any thing from the partnership funds, can in the mean time be apportioned and paid over to them at the same time when the amounts due to the separate creditors of Lush are distributed and paid ; reserving to them a right to a further distribution, if the result of that litigation makes it proper.

The claim on the part of the bank presents a different question. It appears by the report of the master, that upon a part of the notes held by that institution at the death of G. F.Lush, he was not only holden jointly as a partner, but that he was also separately and individually liable as the endorser. As his heirs and personal representatives could be sued at law upon these endorsements, it follows, from what has been previously said, that as to those particular notes, the separate estate of Lush is to be considered as legal assets. The joint estate, however, was primarily liable; and whatever has been paid or secured to the bank out of that fund must be first applied towards the payment of all the notes held by the bank, rateably. The balance remaining due on the particular notes endorsed by G. F. Lush will then form a legal debt, and will be entitled to priority of payment, as against the joint debts due to the other creditors of the firm. A creditor of the joint estate is always entitled to whatever he can obtain out of that fund in the hands of the surviving partner, without relinquishing his security against the separate estate of the deceased partner. (Ex parte Peacock, 2 Glyn. & Jam. Rep. 27. Ex parte Ladbroke, 2 Id. 81. Ex parte Wildman, l Atk. Rep. 109.) In this case, however, the balance due on the notes not endorsed by G. F. Lush can only come in as an equitable claim upon the fund which may remain after the payment of the separate creditors. If therefore, the bank obtains a legal preference against the estate of G. F. Lush, by means of his separate endorsement on some of these notes, that institution will have no claim on account of the jnotes not so endorsed, until the other joint creditors have received enough to place them upon a footing of perfect equality. It must, therefore, be referred back to the master, to ascertain the amount due on the notes thus endorsed, after deducting the amount already received or secured as aforesaid, out of the joint estate.

There can be no division or distribution of the fund until the value of that portion of the securities which remains in the hands of D. & B. Wood is ascertained; and if the parties cannot agree upon that amount, the interest of the bank in those securities must be sold, under the direction of the master, and the produce of that sale credited on the demands. This course was pursued in the case of Reid, Ex parte, (Buck’s B. C. 239,) and Ex parte Richardson, (14 Ves. 188,) where the balances which the creditors were entitled to prove could not be ascertained in any other way.

As I can see very little benefit which will result to any of these creditors by further litigation in relation to the fund assigned to D. & B. Wood, I would suggest to the parties the propriety of dismissing the bill filed against them, so far as respects the assigned fund ; and to pay the costs of both parties in that suit out of the funds of the joint estate in the hands of the receiver, if there is sufficient for that purpose; and to have the residue of the joint estate in his hands distributed among the creditors of the partnership who have come in under this decree. The parties can then ascertain their several rights, in this suit, upon the principles above declared ; and by that means this estate may be distributed, without further delay, among the several parties entitled thereto. In that case the costs of all the parties in this suit will be paid out of the fund which is under the control of the court in this cause, before distribution.

       See Ram. on Assets, 317, 337.

       See M'Culloh v. Dashiell’s Adm’r, 1 Har. & Gills’ Rep. 96; Hall v. Hall, 2 McCord’s Ch. Rep. 302; Morgan v. His Creditors, 20 Martin’s Rep. 599, S. P.


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    De Caters and wife vs. Le Ray De Chaumont and others.
    March 20.
    Where the Christian name of an appraiser was omitted in drawing up a decree for the appraisment and sale of trust property, the court directed it to be inserted in the original decree in the register’s minutes, it being a mere matter of form.
    A trustee cannot become a purchaser of the trust property, either directly or indirectly, on Ms own account, or as the agent of another, unless he obtains the consent of all the persons interested in the sale.
    If a trustee has a personal interest in the sale, which may be sacrificed if he is not allowed to become, a bidder, the court will substitute in Ms place a master or another trustee to execute the trust, if it can be done without injury to the interest of the cestui que trust.
    Pursuant to ihe decision of the court in this case, as reported in 2 Paige's Rep. 490, a decree was entered to carry into effect the provisions of the deed of trust, and referring it to a master to take an account between the trustee, Vincent Le Ray De Chaumont, and the trust estate. The trustee was also directed by the decree to proceed and sell at public auction, in the city of New-York, so much and such parcels of the trust estate as might be necessary to pay off such loans as the trustee had been obliged to make in the execution of the trust, and. any further sum which might be due to him for advances, &c. and also so much as might be necessary to pay off and discharge the several remaining debts and annuities due to the preferred creditors. This sale was to be made upon a.six weeks notice. The decree then provided for an appraisement and sale of the residue of the trust property, upon a six months notice to the several creditors who should have come in under the decree and the deed of trust, in the manner particularly specified therein. In drawing up the decree, the Christian name of one of the appraisers was through inadvertence omitted.
    A petition was now presented on the part of the trustee, stating that he was largely in advance for the trust estate, and that for his own security, as well as for the benefit of the creditors, he was desirous of being enabled to bid, and to become a purchaser, at the sale of the property, in common with others. The petition further stated, that he believed if he was permitted to purchase at such sale, under the authority of the court, more competition would be created, and that the price of the estate on such sale would be thereby greatly enhanced. He therefore asked to be permitted to bid and become a purchaser on his own account, and that the sale might be conducted under the direction or superintendence of a master, or under such guards and securities as the court might deem fit and proper. He also asked to have the Christian name of the appraiser, which had been omitted, inserted in the decree.

      Jl. Ogden, jun. <$• I. S. Huggins, for the petitioner.

      William, H. Harison, for the complainants.
   The Chancellor.

The correction of the decree as to the Christian name of the appraiser is a mere matter of form. It may be inserted in the original decree in the register’s minutes ; and any copies which have been furnished may be amended accordingly.

The application to permit the trustee to bid and to become a purchaser on his own account, is one which deserves a more serious consideration. It is the settled law of the court, that the trustee for a sale cannot become a purchaser on his own account, or as the agent of another, or through the agency of another. In this case it cannot be necessary to permit the trustee to bid for the purpose of protecting his own interest, as the property must in any event be more than sufficient to reimburse him for all his advances and claims, which are entitled to a priority in payment. If a trustee can in no case be permitted to purchase without the consent of the cestui que trust, except by permission of the court, what facts are presented here to justify the court in departing from the general rule, by giving such permission 1 Where the chancellor can see that the trustee has a personal interest in.procuring a fair price for the property, which interest may probably be sacrificed if he is not permitted to bid, it is very much a matter of course to divest him of the character of trustee, to enable him to protect his own rights. In such cases a master or another trustee is substituted for the execution of the trust. But even in those cases the court must be satisfied the interest of the cestui que trust will not suffer in consequence of such permission. If the trustee, in virtue of his trust, possesses superior advantages of information as to the situation and value of the property, so that he will not come to the sale on terms of equality with other bidders, the court will not put him in a situation which may make it for his interest to keep that information to himself. Here I have no doubt it is the sincere desire of the petitioner to make the trust property produce its full value, for the benefit of the creditors; many of whom are the particular friends of his father who created the trust. But it is only necessary to advert to the peculiar nature of the case, to see that an order granting the permission asked for would be establishing the worst possible precedent for future applications of a similar nature. Most of the creditors are foreigners, residing in France, Belgium, and Holland, wholly unacquainted with our laws and with the value of real estate in this country, and probably even with our language. The property to be sold consists principally of wild lands, situate in the interior of the state; and, with the exception of the information possessed by the trustee and his father, very little can be known in the city of New-Yovk as to the situation and real value of the property. The petitioner has been in possession of the estate between eight and nine years; and he has, or at least ought to have, made himself particularly acquainted with every part thereof. From this it will be perceived that the trustee, if permitted to purchase in the property for himself, would have it in his power to obtain the best parts of it upon his own terms, merely by withholding information which the cestui que trusts could never have it in their power to show he possessed at the time of the sale.

, Under such circumstances the creditors are entitled to the full benefit of his information as to the value of every part and parcel of the property; and as to the manner in which it should be put up and sold. It will therefore be his duty to give to them or their agents if any of them attend the sale, as well as to the bidders generally, all the information in his power to enable them to form a correct estimate of the particular situation and real value of each parcel of the land offered for sale, so that it may produce something like its real value. The trustee is not bound to put up the property at a merely nominal price, and to permit it to be sacrificed for want of competition. He should set it up at prices not far below its actual value in cash ; and if he can find no one to bid, under such circumstances, the court will not compel him to sell until the creditors can be notified of the necessity of employing agents to attend and prevent a sacrifice of the property. I cannot anticipate that upon a fair sale in the city of New-York, and with full information to the bidders from a trustee who has no personal interest in enhancing or depressing the value of the property, it will not bring something like a fair price. If, however, the result should be otherwise in this particular case, in the language of Lord Eldon, “ it is better for the general interests of justice, that in some cases a loss should be sustained by the cestui que trust, than that a rule should be established which would occasion loss in much more numerous cases.” (See Ex parte James, 8 Ves. 349.)

I am aware of the difficulties of obtaining a full price for the property on this first sale, in consequence of the absence of the principal creditors. But I cannot see how those difficulties are to be remedied by permitting the trustee to bid it in at his own prices on his own account; whether the sale is made by himself, or by a master -who can know but little of the value of the property. The consent of these complainants who sue in behalf of themselves and the other creditors, in this stage of the suit, would not justify the court in making an order which might injuriously affect the interests of those who have not yet had an opportunity to come in and make themselves parties under the decree. After the time has expired for the creditors to come in, the trustee can be permitted to bid, on obtaining the written consent of all the parties interested in the sale. But until that time, and without such permission, such privilege cannot be granted.

         See Ex parte Rolfe & Milne, (1 Deac. & Chit. Rep, 77.)


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    Shultz, administrator, &c. vs. Pulver and others.
    March 20.
    Where the intestate resided in this state at the time of his death, and administration was granted upon his estate here, by virtue of which the adminis- ' trator obtained notes due to the estate of the decedent, against a debtor who resided in Pennsylvania, and had sufficient property there to pay his debts, and who was afterwards in this state, with the knowledge of the administrator, and might have been arrested here; Held, that the administrator was answerable for the amount of such notes, with interest.
    It seems that an executor or administrator, who has taken probate of the will, or obtained administration of the estate of the decedent within the jurisdiction where he was domiciled at the time of his death, and by virtue thereof obtains possession of the securities against debtors residing in an adjoining jurisdiction, is bound to use reasonable diligence in collecting such debts, although the debtors are not within the state where the decedent was domiciled, and have no property there.
    The personal estate of the deceased, wherever situated, is to be distributed According to the laws of succession which existed in tire country where he was domiciled at the time of his death.
    Previous to the revised statutes, the surrogate was not authorized to decree costs against an administrator, upon a proceeding to compel him to account and pay over the balance in Iris hands.
    This was an appeal from a decree of the surrogate of the county of Columbia, made in June, 1829. The appeal waa from so much of the decree as charged the appellant with the principal and interest due to the intestate upon two sealed notes, executed by Albert Feliz the brother-in-law of the administrator ; and also from that part of the decree which charged the administrator with the costs of taking the account before the surrogate.

      K. Miller, for the appellant.
    <5. Vanderpoel, for the respondent..
   The Chancellor.

The facts in this case lie within a very narrow compass; but the principle involved is one of considerable importance to the community. At the death of the. intestate, who resided in the county of Columbia, he held two sealed notes against A. Feltz, his son-in-law, residing in the state of Pennsylvania. One of these notes was dated the 27tli of February, 1819, for the sum of $600, payable on demand, with interest. The other was for $50, dated June 11th, 1821, and was also payable on demand, with interest. The intestate also left other personal estate, to a very considerable amount. The appellant administered on the estate of his father, in June, 1823, and an inventory of the estate was made the same month. It is stated in this inventory that a note of $200, which the decedent held against the administrator at the time of his-death, and also a note of $650, which the administrator swore he understood and believed was held against. A. Feltz, could not be found. The widow of the intestate died about three years afterwards; and upon examining her trunk, at that time, all these notes were found therein. Feltz and his wife were then on a visit to the appellant and his mother, and their other relatives in the county of Columbia, and stayed there for two or three weeks after the notes were found. At the taldng of the account, in 1829, it appeared that Feltz had a good farm of about three hundred acres of land, in Pennsylvania, well stocked.

The ground assumed by the appellant is, that he was under no obligation to collect the notes of Feltz, because he resided in an adjoining state. It is not necessary perhaps in this case to enquire what would have been the duty of the administrator, if it had appeared that he had used due diligence to obtain the amount due on the notes; and had shown that by the laws of Pennsylvania he could not have recovered against Feltz, without taking out administration there. Even in that case I am inclined to think that this administrator, who bad obtained the legal control of the notes by the laws of the country where the intestate was domiciled, would have been bound to take the necessary steps to collect the notes according to the laws of the state where the debtor resided. I believe it is admitted by the laws of all civilized nations that the personal estate of a deceased person is tobe distributed according to the laws of the country where he was domiciled at the time of his death. Hence it is that every facility is afforded to the persons entitled to the succession, according to the lex domicilii, to obtain the property and debts of the decedent which are within other jurisdictions. Thus, in the recent case of a debt due from the Dulce of York to the Elector of Hesse, the court, upon motion, granted a limited administration to the agent of the representative of the late Elector, for the special purpose of recovering and receiving this debt. (1 Hagg. Eccl. Rep. 93.) And in the case of the Countess Du Cunha, (Id. 239,) the same court, in England, granted administration to a minor, to enable her to receive a particular fund in that country, upon the production of evidence that she would be entitled to receive it by the laws of Portugal notwithstanding her minority. It is probable, however, from the cases cited by the counsel, from the Pennsylvania reports, that this debt might have been collected in that state, by this appellant, even without the formality of taking out a new letter of administration there. (4 Dall. Rep. 292 ; 1 Barney’s Rep. 63.) It also appears that Feltz was within the jurisdiction of this state two or three weeks after the notes were found; and there is no legal excuse for not calling on him and compelling payment at that time.

It is suggested, it is true, that he was only here at that time for a few days to attend the funeral of his mother-in-law; and that the administrator ought not to be compelled to bring a suit against his sister’s husband, under such circumstances. I am satisfied, from the testimony, however, that no suit could have been necessary in this case, if the appellant had done his duty. The debtor was able to pay, and a considerable part of the amount due at the death of the intestate was coming back to him out of the estate, for the distributive share to which he was entitled in right of his wife. There is no pretence that these debts would not have been settled by Feltz at any time, if the administrator had only used that degree of vigilance which even a careless man would have exercised in relation to his own debt. The administrator had no right to permit this debt to remain out on personal security; and under the circumstances, if the amount were now wholly lost by the insolvency of the debtor, he would be chargeable therewith. (See Spode v. Smith, 3 Russ. R. 511.) As the distributees have been kept out of their just dues by the gross negligence of the appellant; and as the notes were drawing interest in the mean time, so that he will be able to obtain the whole amount, on a settlement with Feltz, it became the duty of the surrogate to charge him with the interest.

The only mistake in the decree of the surrogate was in awarding costs against the appellant. This, however, is not upon the ground that he was not equitably liable for the costs to which he had, by his negligence, subjected the respondents! but it is because previous to the revised statutes, it was not the practice of the surrogated courts to give costs in favor of one party against another, in testamentary matters. Costs are given by the ecclesiastical courts in England in such cases, both in original suits and on appeals. I do not find, however, that such a practice was ever adopted in this state. In the case of Reed v. Vanderheyden, (5 Cowen's Rep. 719,) it seems to have been taken for granted by the members of the court for the correction of errors, that the surrogate had no authority to award costs. And I also find, by examination of the records of the late court of probates, an express adjudication as to the costs on an appeal. There is in the case of Davis v. Gardner, in that court, March 37th, 1813, a decree for the payment of a sum of money into court, with costs. But I presume that part which relates to costs must have been added through inadvertence, for that is the only case to be found in that court in which costs were given. In the case of ComelVs Estate, October 36, 1818, the appeal was dismissed with costs; but the order was afterwards amended by striking out that part which related to costs. And the reason of which alteration is thus given on the record : “inasmuch as from investigation, this court is satisfied that costs cannot be allowed here.” That part of the decree appealed from which gives costs to the respondents, must therefore be reversed, but the residue of the decree must be affirmed.

As this is a case in which, by the provisions of the revised statutes, the costs on the appeal are in the discretion of the court, I think it is proper to charge the appellant with the costs of the respondents, although he has succeeded as to a very small part of the matter in litigation on the appeal. But the respondents are not to be allowed, on taxation, for any services or disbursements in relation to the appeal, which had been performed or paid previous to the first of January, 1830, when the revised statutes went into operation. The appellant must also pay to the respondents respectively the several balances due to them, as ascertained by the decree of the surrogate, together with interest thereon, from the date of the said decree, until such sums are paid ; such interest being allowed by way of damages for the delay and vexation. The respondents are also to be permitted to enroll this decree of affirmance in this court, and to take out executions thereon according to the course and practice of the court.


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    Cuyler and others vs. Bogert and others.
    March 20.
    If the defendant has a defence which will excuse him from a discovery as to the whole or any material'parts of the bill, he must make such defence by plea, or demurrer.
    As a general rule, if the defendant submits to answer the complainant’s bill, he must answer fully.
    A purchaser, for a valuable consideration, without notice, may, by an answer, object to a discovery which would destroy his title ; provided he sets up this defence, and fully denies all the circumstances stated in the bill, which go to charge him with actual or constructive notice of the complainant’s equity.
    Where the defendant, by his answer, objects to the discovery of particular matters alleged in the bill, he cannot answer as to such matters in part, without overruling his own objection.
    It is not a sufficient answer to the matters charged in the bill, for the defendant to aver that he has no knowledge or information of the same, except what is derived from certain depositions taken previous to the filing of the bill; which depositions- are not annexed to the answer, nor the substance thereof stated therein.
    This case came before the court on exceptions to a master’s report, on exceptions to the separate answer of the defendant H. H. Bogert. The principal object of the bill was to correct a mistake in a deed from J. Livingston to one of the members of the “ Genesee Company,” of a lot of land drawn to the share of such member. The allegation in the bill was that by mistake the deed was filled up with the number of another lot, which had been drawn by and conveyed to another member of the company. The bill contained many other charges calculated to show that the defendant Bogert took a conveyance of Livingston’s interest in the unconveyed lands of the company, subject to the equity which existed against the lot in controversy, which was intended to be conveyed by the deed now sought to be corrected. The defendant Bogert, by his answer, professed to answer as to every material allegation in the bill. He also set up in bar of the relief, that he was a purchaser of all J. Livingston’s interest in the unconveyed lands, for a valuable consideration. As to the original equities between Livingston and the person under whom the complainants claim, he answered, that he had no particular knowledge or information, other than the information which he derived from the depositions of J. Coffin and J. Wegram, taken at the instance of the complainants, or some of them, previous to the filing of the bill; and that he believed the facts stated in the deposition of Coffin to be true. And he referred the complainants to those depositions for further particulars. The master allowed the several exceptions taken to the sufficiency of the answer. And it was contended, among other things, upon the argument of the exceptions to the master’s report, that the defendant was not bound to answer fully as to the merits of the complainants’ claim, as set out in the bill.

      L. H. Palmer, for the complainants.

      A. Van Vechten, for the defendants.
   The Chancellor.

The rule appears now to be well settled, with two or three exceptions,- that if a defendant has a defence which will excuse him from a discovery as to the whole or any material parts of the bill, he must make such defence by plea, or demurrer. And if he submits to answer, he must answer fully. (Mitf. 4 Lond. ed. 307, note h.) One exception to this rule is, that a purchaser, for a valuable consideration without notice, may by answer object to a discovery which is to destroy his title; provided he sets up this defence in the answer, and fully denies all the circumstances stated in the bill, which go to charge him with actual or constructive notice of the complainants’ equity. I was never well satisfied, even with this exception to the general rule, as it compels the complainant to prove his whole case, although he may be able to show conclusively that the defendant’s allegation of bona fide purchase is false. I think, however, the case under consideration does not come within this exception. That part of the answer in which the defendant alleges that he is a bona fide purchaser, is not set up by way of objection to the discovery bought by the bill; but only as a bar to the relief. And the defendant has undertaken to answer all the matters in the bill, notwithstanding this defence. Having answered the residue of the bill in part, the defendant was bound to answer it fully. Although he might, by an answer, showing himself a bona fide purchaser without notice, object to the discovery as to the other matters of the bill, he is not permitted to select such parts of those matters as he thinks proper to answer, and to leave the others unanswered. If he uses this fact in the answer as a substitute for a plea, the rules of pleading must be applied to it. He cannot, by answer, object to the discovery of particular facts in the bill, and then answer those matters in part, without overruling his own objection. The complainants are therefore entitled to a discoveiy of every material fact stated in the bill.

The first and second exceptions to the answer are well taken. The defendant, as to the matter of those exceptions, avers he has no knowledge or information other'than such as is derived from certain depositions taken previous to the filing of the bill. He says he believes one of those depositions to be true; and refers the complainants to those depositions for further information. The depositions are not made a part of the answer ; and if the cause was brought to a hearing on bill and answer, they could not be read in support of the allegations in the bill. Those allegations should have been answered accordingto his information and belief, if he had no personal knowledge thereof. And if he had no other information than that which was obtained from the depositions, he should have stated what that information was, and have negatived all other, except from the statements in the complainants’ bill. (Morris v. Parker, 3 John. Ch. Rep. 297. Smith v. Lasher, 5 Id. 247.)

All the allegations to which the third exception relates were also material, and they should have been answered fully and circumstantially, as to the information and belief of the defendant, and not merely as to his personal knowledge. Without taking up further time, to go into a detail of the several reasons on which the other exceptions to the answer are sustained, I am satisfied the master’s report as to all of them is correct. The exceptions to the report are therefore overruled, and the report is confirmed, with costs. The defendant EL H. Bogert must pay those costs, together with the costs of the original exceptions, and of the proceedings thereon, and put in a further answer, within forty days after notice of the order, or the bill must be taken as confessed against him.


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    Bronson, administrator, &c. vs. Ward and others.
    March 20.
    A decree of a surrogate upon an account taken against an administrator, made on the application of one or more creditors of the estate, but without citing the next of kin of the intestate, is not a decree for the final settlement of the account of the administrator; and an appeal from the decision of the surrogate in such a case must be made within thirty days after the entry of the decree.
    Where an appeal from a sentence or decree of a surrogate is not entered within the time limited for that purpose by the statute, the court of chancery, acting as an appellate court, can afford no relief to the appellant.
    If the appellant from a surrogate’s decision neglects to file his petition of appeal, and to procure the transcript within the time prescribed by the 118th rule, the appeal will be dismissed, unless the delay is satisfactorily accounted for.
    This was an application on the part of the respondents to dismiss the appeal, which had been entered with the surrogate of the county of Oneida, on the ground that the appeal had not been entered within the time allowed by the statute; and also on the ground that no petition of appeal had been filed, or transcript returned, as required by the 118th rule of this court. The order appealed from was for the payment of the amount due to the several respondents as creditors of the intestate ; and it was founded upon a citation issued upon the application of H. Ward, upon which the other two creditors came in as interveners. The appeal was entered with the surrogate within three months after the entry of the decree, but not within thirty days. On the part of the appellant a petition was presented asking permission to file the petition of appeal with the register of this court, and for leave to procure the transcript of the surrogate to be returned at this time.
    #8. M. Woodruff, for the appellant.

      B. R. Wood, for the respondents.
   The Chancellor.

From an examination of the facts in this case, I am satisfied the decree of the surrogate, appealed from in this case, was not a decree for the final settlement of the account of the administrator, within the meaning and intent of those provisions of the revised statutes which allow three months for the appeal from such a decree. (2 R. 8. 95, § 67. Id. 610, § 105.) The proceedings were instituted in 1828, under the provisions of the laws then in force, and which only allowed thirty days for an appeal. The same distinction, however, existed at that túne, as now, between a final settlement of the account of the administrator and the taking of an account for the purpose of obtaining payment of a particular debt or legacy. By the practice of the ecclesiastical courts in England, which was the foundation of our proceedings before surrogates, the legatees, next of kin, and creditors of the testator or intestate might severally, or in several suits, compel the executor or administrator to render an account. To prevent the great trouble and vexation to which the representative of the decedent was thus subjected, he was. permitted, so soon as he was cited to account by any of these persons, to cite the next of kin in special, and all others who had or claimed an interest in the estate in general, to come in and see the taking of the account, and to hear the testimony of the witnesses, so as to obtain the final sentence of the court; by which the representatives were freed from rendering any further account, except to such persons as were infants at the time time such account was taken. (Conset's Eccl. Pr. 296, pt. 6, ch. 3, § 1, sub. 8. Cockb. Eccl. Pr. 143.) The provisions in the revised statutes "relative to the final settlement of the account are merely an extension of this principle. And the 60th section of the statute, (2 R. S. 93,) expressly recognizes the distinction between an account taken between one or more creditors or legatees, and the taking of a final account where all the parties interested in the estate are cited to appear. (See revisor's note to sec. 63.) It also appears from the affidavit annexed to the petition of the respondents that these three creditors were alone parties to this proceeding, and that neither the next of kin or any other person was cited before the surrogate. That court therefore could not make a decree for the final settlement of the accounts of the administrator. The surrogate accordingly decreed the payment of the debts due to these creditors out of the amount ascertained to be in the hands of the administrator ; leaving a small balance undisposed of, to be accounted for by him on the final settlement of his accounts with those who might be entitled to the residue of the estate. This is therefore a case coming within the 107 th section of the revised statutes relative to appeals, &c. (2 R. 8. 610.) And as it was not entered within the thirty days, this court can afford no relief to the appellant.

But in this case, if I had arrived at the conclusion that the appeal was entered in time, I do not think that the appellant has furnished any sufficient excuse for his neglect to file his petition of appeal, and to procure the transcript. The statute has authorised this court to regulate the practice on appeals from surrogates, &c. And under the power thus given, the 118th rule requires the appellant to file his petition of appeal with the register or assistant register within fifteen days after the appeal is entered, or the appeal shall be considered as waived. Nearly a year has elapsed since the appeal was entered and no petition of appeal has yet been filed, and no transcript has been returned, although it was long since made out by the surrogate. The conversation between the appellant and Field was before the appeal was entered; and the latter in substance denies that he ever requested the appellant to stay the proceedings.

The application for leave to file the petition of appeal must therefore be denied, and the appeal must be dismissed, with the costs of these applications.


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    Gaul and wife vs. Miller and others.
    March 20.
    Where, by a mistake of the solicitor for the defendant, which the counsel for the opposite party was aware of but did not attempt to correct, the names of the defondant’s witnesses were not furnished at the commencement of the examination of the complainant’s witnesses before the examiner, the court, upon an affidavit of the solicitor explaining the mistake, and upon a general affidavit of the defendant, under the advice of counsel, as to the materiality of the witnesses, permitted the witnesses to be examined, saving to the complainant the right to examine other witnesses on his part.
    Where the attention of the party is called to the provisions of the 83d rule at the commencement of the examination, or he neglects to furnish the list of his witnesses with a full knowledge of the existence of that rule, he will not be allowed to examine his witnesses, without stating on oath the substance of what he expects to prove by their testimony, in addition to the excuse for not having complied with the rule.
    Where a solicitor refuses to waive a default, or other technical advantage, which he has obtained over the adverse party, upon fair and reasonable terms, and thus compels him to apply to the court for relief, such solicitor will not be allowed costs for opposing the application.
    This was an application for leave to examine several witnesses on the part of the defendants, whose names had not been furnished to the solicitor of the adverse party, or to the examiner, before the commencement of the examination of witnesses, as required by the 83d rule. On a former day a similar application was made, founded upon the affidavit of the defendants’ solicitor, that he did not suppose it necessary, under the rule, to furnish the names of the witnesses on the part of the defendants at the commencement of the examination of witnesses on the part of the adverse party. He therefore did not furnish the list of his witnesses until that examination closed9 when he immediately gave the names of his witnesses, with notice of their examination ; which notice the complainants’ solicitor refused to receive. The affidavit also stated that upon a consultation with his clients, they deemed it advisable to take the examination of the witnesses. The chancellor thought the excuse, that the defendants’ solicitor had misapprehended the effect of the recent rule of the court, sufficient. But he refused the application on the ground that there was no affidavit of the defendants as to the materiality of the testimony of these witnesses. The defendants were, however, permitted to renew their application on new affidavits, if the complainants’ solicitor did not consent to waive the objection, and permit the witnesses to be examined. The defendants now produced their own affidavit that they were wholly ignorant of the rule of the court which made it necessary for them to furnish the names of their witnesses before the commencement of the examination. They also swore to the materiality of the testimony of the witnesses before named, and of two others sincejliscovered, as they were advised by counsel, &c.

      J. Rhoades, for the complainants.

      K, Miller,‘Tor the defendants.
   The Chancellor.

After the passing of the statute, authorising the examination of witnesses openly before the -examiner or commissioner, it was found that part of the evils which had been anticipated were actually produced by this change in the practice of this court. When the principal witnesses had been examined, the parties respectively were in the habit of protracting the closing of the proofs, to endeavor to fish up testimony to contradict the depositions of the witnesses who had been examined against them. By this course of proceeding, garbled conversations and much useless matter wholly irrelevant to the issue in the cause, were frequently introduced. There was also reason to apprehend it sometimes led to subornation of perjury. The object of the 83d rule was to remedy this evil, as far as practicable, by requiring the parties to interchange- lists of their witnesses, either between themselves or in the piesence of the examiner, before the taking of the testimony was commenced. It was supposed this could be done with as much ease as upon a trial at the cirjcuit, or in the court of common pleas; where the respective parties are obliged to prepare themselves, and in most cases even to summon their witnesses and procure their actual attendance, long before the commencement of the trial.

It was not intended, however, that any captious advantage should be taken of a party who had, through inadvertence, neglected to furnish the names of his witnesses in time. And in this case it was perfectly evident that the defendants’ solicitor had misunderstood the effect and intention of the rule. Liberal practice, therefore, required of the complainants’ solicitor, if he intended to hold his adversary to the strict letter of the rule, that he should have pointed his attention thereto when they were both present before the examiner, and have given him fair notice that he must comply therewith or that he would be precluded. If this course had been pursued, the court would have required of these defendants something more than a mere affidavit of the materiality of the testimony, before it would have permitted them to examine witnesses not named before the taking of the testimony was commenced. In such a case, the court would require of the party, in order to bring himself within the second clause of the rule, not only to furnish an excuse for not naming the witnesses before, but also to state on oath the substance of what he believed he should be able to prove by them ; so that the court could see he was not seeking to violate the spirit and intent of the rule.

In this case the defendants must be permitted to examine the witnesses named in the first application ; but they are not to be at liberty to examine them as to any declarations or conversations of the witnesses already sworn on the part of the complainants. The two, additional witnesses named in this application have been hunted up, since the testimony on the part of the complainants was closed. And as the affidavit does not show what is expected to be proved by them, they are not to be examined unless the complainants elect to examine other witnesses on their part.' The complainants are to be at liberty to examine any other witnesses on their part, provided they give notice of such election, and furnish the names, &e. of such witnesses to the adverse party, or to the examiner, before the taking of the testimony is resumed. And if they give notice of such election, the defendants are also to be at liberty to examine such witnesses as they may choose, upon furnishing their names to the adverse party or to the examiner, in the same manner. The time for closing the proofs is also to be extended thirty days from the entry of this order, to enable the respective parties tb take their testimony.

From the facts appearing on these affidavits, I think the complainants’ solicitor should have permitted these defendants to examine the witnesses first named, upon fair and reasonable terms. And I cannot encourage the sending of parties here for relief, -with no other object than to obtain the costs of resisting the application. Therefore, neither party is to have any costs on this or the previous application. If the complainants’ solicitor was willing to consent to the examination of the witnesses upon condition of being permitted to examine other witnesses on his part, or upon any other equitable terms, he should have stated those terms to the solicitor of the defendants at the time this request was made. In that case, if those terms had not been acceded to, and the complainants had been compelled to come here and resist the application, to enable them to obtain such terms as were just and reasonable, they would have been allowed their costs.


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    Osgood vs. Joslin and others.
    Where one of the parties has obtained a special order enlarging the time to produce witnesses beyond the forty days limited by the original order, the 86th rule docs not preclude the adverse party from applying ex parte for a similar order, at any time before the time limited by the extended order has actually expired.
    If one party obtains an order to extend the time to produce witnesses, it operates as an enlargement of the forty day rule; and both parties have a right to take testimony during the extended time.
    A special order, entered under the direction of the court, although in violation of one of its standing rules, cannot be disregarded by the parties, or the officers of the court, so long as it remains in force.
    A party is not compelled to disregard an order of course, which has been irregularly entered by the adverse party, and which the latter refuses to waive; but he may apply to the court to discharge the same, and in the mean time may suspend proceedings which are inconsistent with such order.
    March 20.
    This was an appeal from an interlocutory order of the vice chancellor of the fifth circuit. A rule to "produce witnesses was entered by the defendant’s solicitor, and was served on the solicitor of the adverse party on the 26th of July, 1831. On the 29th of August, the complainant obtained an order extending the time to produce witnesses until the 24th of September. On the 19th of the last mentioned month, the defendants, upon an ex parte application to the vice chancellor, obtained another order extending the time to the 15th of October; notice of which order was duly served on the complainant’s solicitor. On the 26th of September, the solicitor for the complainant considering the last mentioned order as obtained contrary to the provisions of the 86th rule treated it as a nullity, and entered an order to close the proofs. Notice of the order to close the proofs, and also a notice of an application to set aside the order of the 19th of September, were served on the defendants’ solicitor on the 5th of October. In consequence of these notices he concluded to suspend the examination of his witnesses until after the decision of the court upon the regularity of these proceedings. The application to set aside the order of the 19 th of September, was made on the 11th of October and denied. The defendants then gave notice of an application, for the next motion day of the vice chancellor, to set aside the order for closing the proofs, and for leave to examine the witnesses on the part of the defendants. In the mean time, and before the receipt of this notice, the complainant’s solicitor entered a new order to close the proofs. The vice chancellor set aside the order closing the proofs, and gave both parties until the first of December then next to examine any witnesses whose names had before been furnished ; but without prejudice to the right of either to set down the cause for hearing at the next term of the court. From this last order the complainant appealed.

      P. Griclley, for the complainant.

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

The defence set up in this case is usury ; and as the defendants did not offer to pay the amount equitably due, if they have made a slip they have no claim to the special interference of the court for their relief. That principle was fully settled by this court, and by the court for the correction of errors, in the case of Beach v. The Fulton Bank, (1 Paige’s Rep. 429 ; 3 Wend. Rep. 573.) The decision of the question on this appeal must therefore depend upon the regularity of the proceedings, and upon the mere technical rights of the parties according to the rules and practice of the court.

In giving a construction to the 86th rule, it is necessary to enquire what was the practice previous to the adoption of that rule, and what was the evil intended to be remedied by its adoption. When I first came into this court, I found that my predecessors had been in the habit, on the ex parte application of either party and upon affidavit showing probable cause for xthe delay, of extending the order to take testimony from time to time, for such time as might be deemed necessary. This practice led to great abuse, as the same party sometimes delayed the cause for a great length of time by repeated orders to extend the rule, and without giving the adverse party a chance to be heard in opposition thereto. Orders of this kind were sometimes obtained ex parte, long after the time for producing witnesses had. expired, and when the adverse party was entitled to an order of course to close the proofs. It frequently becomes necessary for one or both parties to obtain a longer time than forty days to examine their witnesses. The court, therefore, in remedying the evils which had grown out of the former practice, thought it advisable to declare, in express terms, that one such ex parte order might be obtained, provided it was applied for before the time for producing witnesses had actually expired. But only the latter clause of the rule was intended to be prohibitory, so as to deprive a parly of the privilege to which he was entitled under the former practice of the court. This part of the rule merely restricts the same party from obtaining a second ex parte order. Where one of the parties' obtains an order to extend the time to produce witnesses under this rule, both parties have a right to take testimony untifthe expiration of the extended time. It operates as an enlargement of the 40 day rule, and the time to produce witnesses does not actually expire until after the expiration of the time thus given. The vice chancellor was therefore correct in the construction of this rule; and the order of the 26th of September, closing the proofs, was irregular. Even if the order of the 19th of September had been obtained in violation of the provisions of the 86th role, as it was entered as a special order under the express direction of the court, I am not prepared to admit that the complainant was authorized to treat it as a nullity, although he might be entitled to have it set aside for irregularity. If the vice chancellor through inadvertence had directed an order to be entered in violation of one of the standing rules of the court, the complainant’s solicitor should at least have applied to him ex parte for a special order to close the proofs notwithstanding the previous order. But neither the solicitor or the clerk had a right to disregard an order entered under the express directions of the vice chancellor. (See Jackson v. Jackson, 3 Cowen’s Rep. 73.)

It is insisted on the part of the appellant, that if the order to close the proofs was irregular, the defendants should have disregarded it, and have gone on and examined their witnesses. I think, however, even if they had the right to treat a common order irregularly entered as a nullity, they were not bound to do so ; especially after service of the complainant’s notice of an application to vacate the order extending the time to close the proofs. Before that application was disposed of, it was too late to give regular notice of the examination of the witnesses before the expiration of the extended order to produce proofs; and this application was noticed for the first motion day thereafter. The order of the 18th of October, to close the proofs, was also irregular. When that order was entered the complainant was still holding on to the previous order which had not been vacated; and he must then have been aware of the intention of the defendants to apply to set aside the first order, and for leave to examine their witnesses. Having deprived them of the right to examine under their former notice by his own irregularity, he should have vacated the order to close the proofs, and stipulated to give them a reasonable time to re-notice the examination of the witnesses, before he could preclude them by a second order.

The defendants have been guilty of no loches in making their application to the court. When their solicitor received notice of the complainant’s irregular order, he was from home and attending the comity court. Under such circumstances, he was not bound to leave his business and return immediately to his office to make the necessary preparations for an application at the then next motion day. Such a proceeding would have been unprecedented, and was not required by the practice of this court. Reasonable diligence is all that is expected in such a case; and particularly where the adverse party cannot be injured by the delay.

The order of the vice chancellor must be affirmed with costs. And the parties respectively are to have thirty days from the time of the entry of this order, to examine the witnesses allowed to be examined by the order appealed from.

       The court, upon a special application, may disregard an order irregularly obtained. (See De Geneve v. Hannam, 1 Russ. & Mylne, 494.


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    In the matter of Heller, an idiot.
    If a person has either a legal or equitable claim against the estate of an idiot, lunatic, or habitual drunkard, in the hands of a committee appointed by the court of chancery, which such committee refuses to pay, he must apply to this court by petition, for payment of hit; demand; and he will not be permitted to obtain payment by means of a suit at law, unless such suit is brought with the sanction of this court.
    When a party proceeds at law against the lunatic, after the appointment of a committee by this court, he will, upon a proper application by the committee, be restrained from such proceeding.
    If the property of a lunatic is under the control of the court of chancery, in the hands of a committee, it is a contempt of the court for a plaintiff in a suit at law to interfere with the property, on a judgment and execution against the lunatic.
    Debts contracted by a lunatic, or habitual drunkard, after the appointment of a committee, and without his consent, cannot be paid out of the estate, although established by a suit at law against the lunatic or drunkard. If‘.the committee of an habitual drunkard finds that any person is furnishing ■the drunkard with the means of intoxication, he should apply to the court for protection against such an interference with his duties as committee.
    April 3.
    Where an idiot, who was under the care of a committee appointed by this -court, pulled down a school house standing upon lands owned in common by him and the trustees of the school district, the court authorized an equitable partition of the land, so as to compensate the trustees for the share of the school house which belonged to them.
    This was a petition on the part of the trustees of a school district to compromise a claim against an idiot for pulling down a school house; for which claim they had brought a suit against him at law. Jacob Heller, the elder, died about 30 years since, seised of a farm in the town of Bethlehem. By'his will he gave to his son Baltus ah his real and personal estate in fee; provided Jacob Heller, the brother of Baltus, had no child who should arrive at the age of twenty-one. But if-he had such child or children, then the one half was to go to the first, or oldest son at twenty-one; and if there was no son, to the eldest daughter. In 1807, Baltus Heller and his brother Jacob conveyed 100 feet square out of the farm to certain individuals and their heirs and assigns, to be held in ¡common with the grantors, for the purpose of erecting a school house thereon. The inhabitants of the district afterwards erected a school house on the lot, and occupied the same for their district school. Jacob Heller, the son, married and had issue, a son, who has been found an idiot, and had a committee appointed by this court. Partition was afterwards made of the farm, and one half thereof, including the school house lot, was assigned to Jacob Heller, the idiot, who had become -entitled to the same, under the will of his grand father. About two years since, and after he was found an idiot, Jacob Heller pulled down the school house. The petitioners who had been appointed trustees of a school district at that place, under the general laws of the state, thereupon commenced a suit at law against the idiot, to recover damages for pulling down the house. Upon an application of the committee, this court authorized him to take the proper steps to defend that suit. The trustees having become satisfied they could obtain no relief in the suit at law, now offered to compromise the suit, and to release all claim to damages, and pay their own costs, upon* receiving a conveyance from the committee of a piece of the idiot’s land, equal to one half of the school lot; and to convey their interest in the school lot to the idiot, either unconditionally, or upon receiving such compensation for the damages as this court might think proper to allow them out of the estate of the idiot. The committee of the idiot acquiesced in the justice of the present application; and submitted the rights of the idiot to the chancellor, that such order might be made in the premises as should be equitable and proper.
   The Chancellor.

Situated as the legal title to this property was at the time the school house was destroyed, it is doubtful whether an action at law could have been sustained against the person who did the injury. The legal title to one half of the lot was in Heller, under the will of his grand father, as soon as he attained the age of twenty-one. The deed of 1807, gave the grantees only one half of the property in fee, and the other half until the idiot arrived at the age of twenty-one. At that time he became entitled to one half of the land j and to one half of the school house which had been erected thereon during the continuance of the particular estate. Although he might not be liable in an action of trespass at law, yet if he had been of sane mind, he was equitably answerable for the one half of the building destroyed.

But if an action at law could be sustained, it would be worse than useless for the trustees to prosecute it under such circumstances. The statute has given to this court exclusive jurisdiction over the estates of idiots and lunatics; and over the estates of habitual drunkards, except in a few cases where a concurrent jurisdiction is given to the courts of common pleas. (2 R. S. 52, § 1, 3.) If any person has a legal or equitable claim against the estate which is under the care and management of the committee, who refuses to allow the same, he must apply to this court, by petition, to enforce his claim. And he will not be permitted to obtain payment by means of a suit at law, except where the suit is brought under the express direction or sanction of this court. Although the lunacy of the defendant may not always form a legal defence, this court, upon a proper application by the committee, will restrain such a proceeding, and compel the plaintiff to come here for justice. (1 Jac. & Walk. Rep. 636, 643. 5 Mad. Rep. 406. 2 Sch. & Lef. 229. 1 Hogan’s Rep. 98.) And even if a party succeeds in an action at law, it will be a contempt of this court for him to interfere with the property which is under its exclusive control. Although he may afterwards come here for the payment of his claim, he must again establish it in such manner as this court may think proper to prescribe. He must also give up his proceedings at law, and pay his own costs, before this court will interfere for his relief.

I have recently learned that many suits at law have been brought against idiots and drunkards, after the appointment of committees by this court; and sometimes for debts contracted by them; against the consent of their committees, after their appointment. In every case of that kind it is the duty of the Committee to apply to this court to restrain such proceedings. No debt contracted by the lunatic or drunkard, under such circumstances, can be paid out of the estate. • And if paid by the committee without the sanction of this court, although after a recovery at law, he will not be allowed for it in the settlement of his accounts. In the case of an habitual drunkard, particularly, if the committee finds that any person is furnishing him with the means of intoxication, even gratuitously, he should apply to the court for an order restraining all persons tram furnishing the drunkard with ardent spirits, or with the means of obtaining liquor, upon pain of contempt.

In this particular case it is understood the idiot is perfectly harmless and peaceable, except when he is under the influence of liquor; but that, when intoxicated, he frequently destroys the property of others. I therefore shall direct an order to be entered restraining all persons from selling or furnishing him with any ardent spirits, or with the means of obtaining it, without the express sanction of the committee. And if any one, after notice of the order, shall be guilty of a violation thereof, he will be held responsible, not only for the contempt of the court, but for all the damage which may be done by the idiot to the property of individuals, while under the influence of the liquor thus furnished to him. The committee is also directed to serve a copy of the order upon such retailers in his neighborhood as he may think proper, so that they may not hereafter plead ignorance thereof.

There is a legal difficulty in making the exchange of the school lot for one on a different part of the premises belonging to the idiot. This court has only power to order a sale of the idiot’s estate for the payment of his debts, or for maintenance, &c. (In Re Pettit, 2 Paige's Rep. 596.) The statute,however, has authorized the court to direct a partition of property held in common with others, in the case of lunatics and idiots. In this case it is undoubtedly equitable that in making a partition of this school lot, between the idiot and the school dis-Met, the value of the school house, only half of which belonged to him, should be taken into account. It may, therefore, be referred to a master to enquire into the facts and circumstances of this case, and to report what part of the school lot mentioned in the deed of 1807, less than the whole, should be set off to the school district in making an equitable partition between it and the idiot; the trustees relinquishing all further claim upon the estate for damages, and discontinuing their suit at law. And upon the coming in of that report the court may authorize the committee to agree to the partition, and to execute a release of the right of the idiot in the part of the lot assigned to the school district.

         As to the power of the court to protect its officers in the discharge of their duty, see Ex parte Clark, (1 Russ. & Mylne, 563.)