text:
    Harris vs. Fly and others.
    Where the testator by his will devised his farm to his son, subject to the life estate of his wife in a part of the same, and then gave to each of his two daughters a legacy of $1000, to be paid by his son in six annual payments from the death of his mother, and made the son also his residuary devisee and legatee; Held, that the legacies to the daughters*were an equitable charge upon the farm devised to the son; the personal estate of the testator being insufficient to pay the legacies.
    Where an equitable charge upon the land devised is created by the will of the testator, a subsequent purchaser from the devisee, who is obliged to make title to the premises through the will, has constructive notice of the charge, and takes the land subject thereto.
    A charge of a legacy upon the real estate of the testator, either in aid of or in exoneration of the personal property, may be created by implication. And where the real estate is devised to the person who by the will is directed to pay the legacy, in respect to such devise, or is devised upon condition that the devisee pay the legacy, such real estate is in equity chargeable with the payment of the legacy ; unless there is something in the will to rebut the presumption that the testator intended to charge the estate devised.
    The personal estate is the primary fund for the payment of debts and legacies. And if the testator does not specify who shall pay the legacies, or out of what fund they shall be paid, the presumption is that he intended it should be paid out of the personal estate only. The result is the same where he directs the executors to pay the legacies, and gives them no other fund than the personal estate out of which to pay them.
    Where the real estate devised is charged with the payment of a legacy, and by the death of the legatee the devisee of the real estate becomes entitled to the legacy, -under the statute of distributions, there is an equitable merger of the charge; and a subsequent purchaser from the devisee will, in equity, bo entitled to hold the premises discharged of the lien of the legacy.
    A legacy charged upon real estate becomes lapsed, by the death of the legatee before the time appointed for payment, only in those cases in which the payment was postponed by the testator in reference to the situation and circumstances of the legatee ; and not where it was postponed for the convenience of the estate, or of the person charged with the payment of the legacy.
    If a party to a suit in chancery wishes to protect himself as a bona fide purchaser or mortgagee of real estate without notice of a prior equity, he must deny such notice, in his bill or answer; so as to give the adverso party an opportunity to put the- fact in issue, and to prove it if he is able to do so.
    Where the complainant’s claim to priority, in a mortgage case, is denied by the defendant’s answer, the master, upon the ordinary reference to compute the-amount due upon the mortgage, previous to the hearing of the cause, under the 134th rule of the court of chancery, is not authorised to settle the question of priority between the parties, but must leave it for the decision of the court upon the hearing.
    March 5.
    The bill in this cause was filed to foreclose a mortgage given by the defendant Fly, to the complainant, upon a farm in Greenbush; and the defendants, A. Drum and John Heaxt and wife, were made parties, on the ground of some supposed interest they had in the premises, or claimed to have therein, as prior incumbrancers under the will of Nicholas Drum, deceased. It appeared by the bill, and the answers of those defendants, that N. Drum, who died in 1815, was seized of the premises at the time of his death. By his will he devised the same to his son, A. Drum, in fee, subject to the life estate of his mother, the wife of the testator, in the south part of the dwelling-house, and in one third of the income of the farm, or so much thereof as she should want for her decent support, with fire-wood for one fire. He also gave to his widow two cows, six sheep, and.the use of his household goods for life, with remainder to his two.daughters after her decease. He then gave and devised unto each of his two daughters SI000, to be paid to them by his son, A. Drum, the devisee of the real estate, in six equal annual payments, the first payment to be made one year after the death of their mother. The testator also appointed his son and two other persons executors; and directed them to dispose of so much of his personal property as was necessary to pay his debts and the expenses of administration. And he then concluded his will as follows : “ And finally, all the rest and residue of my estate and effects, real and personal whatsoever and wheresoever, not herein before mentioned, or otherwise effectually disposed of, (after payment of all my debts, legacies and funeral expenses, and other charges and deductions as aforesaid,) I give, devise, and bequeath unto my son, Aaron Drum.” Upon the death of his father, the defendant A. Drum, entered into possession, under the will, and continued in possession until all his title and interest therein was sold by the sheriff, on a judgment and execution against him, in August, 1830, and purchased by Fly, the mortgagee; to whom a deed was given by the sheriff" after the time of redemption had expired. Peggy Drum, the sister of the devisee, died unmarried and intestate, soon after the death of her father; leaving her mother and brother and her sister, Mrs. Heaxt, her surviving, and the only persons entitled to any share of her estate. And the mother died on the 8th of October, 1837. The defendants, Heaxt and wife, by their answer claimed that the legacies to the daughters of the testator were an equitable lien upon the lands devised to the son, and that they were in the right of Mrs. Heaxt entitled to be paid her legacy out of the proceeds of the sale of the premises; and also the one half of the legacy of Peggy Drum, which half belonged to Mrs. Heaxt as one of the representatives of the legatee and of her mother, under the statute of distributions. And the defendant, A. Drum, made a similar claim for the other half of the last mentioned legacy. The masier, to whom it was referred under the common order, entered in pursuance of the 134th rule, to compute the amount due to the complainant and to such of the defendants as were prior incumbrancers of the mortgaged premises, decided that these defendants were not prior incumbrancers on the mortgaged premises, although they by their counsel offered to prove that the testator did not leave sufficient personal estate to páy his debts, and that he left no real estate except the mortgaged premises. The cause was thereupon heard upon the bill and answers, and upon the master’s report of the amount due upon the mortgage.

      J. Harris & S. Dutcher, for the complainant.

      H. V. D. Van Epps, for the defendants.
   The Chancellor.

The reference to a master previous to the hearing, to compute the amount due to the mortgagee and to prior incumbrancers, is only authorized to be entered where the rights of the complainant, as stated in the bill, are admitted by the answer. Where the defendants, therefore, by their answer, set up a claim of priority which is adverse to the claim of the complainant as made by his bill, the master is not authorized to settle the question of priority. If ho makes any report whatever on the subject of such claim, therefore, he should merely ascertain the amount due upon the supposition that the claim of priority, as made by the answer, is well founded ; leaving it for the court, upon the hearing, to decide the question as to the legal or equitable rights of the defendants, upon the facts stated in their answers. The report of the master, in deciding the question that the legacies were not a lien upon the estate devised, was not authorized by the order of reference, and must be laid entirely out of the question in deciding this cause upon the bill and answers. It was proper, however, as to the absentees who had suffered the bill to be taken as confessed, to inquire and report as to the facts stated in the bill, upon which the legal questions arise, and which are all admitted in the answers of the defendants who had appeared.

The first question presented for the consideration of the court is, whether the legacies to the two daughters were either a legal or an equitable lien upon the devised premises. And it may be proper here to remark, so far as regards the claim of Mrs. Heaxt, that it is perfectly immaterial, whether the legacies were a legal or only an equitable lien. For as she was the heir at law of her father as to one third of the premises, and of her sister as to one half of another third, it is impossible for the complainant to make title to that half of the premises except through the will. And this was sufficient to charge him, and those through whom he claims, with notice of her equitable rights upon the premises, if she had any, under that will. Besides there is no allegation in the bill that Fly, at the time of his purchase under the judgment against A. Drum, or the complainant at the time of his mortgage from Fly, was ignorant of the existence of the will and of the equitable rights of the legatees, if they had any, under the same. And it is a rule of pleading in this > court, that where a party wishes to protect himself as a bona fide purchaser or mortgagee without notice of a prior equity, he is bound to deny such notice, in his bill or answer ; so as to give the adverse party an opportunity to put the fact in issue by his answer or replication, and to prove the existence of such notice, if necessary, where he is able to do so. Here the complainant, in his bill, sets out the will itself and all the facts upon which the equitable lien of the legatees, if any, arises ; and as he does not allege that either he, or Fly under whom he claims, acquired a legal interest in the premises without notice of the will, it was not necessary for the defendants to aver, in their answer, that the complainant and Fly were not bona fide purchasers without notice.

The testator does not in terms create an equitable charge upon the devised premises for the payment of the two legacies to the daughters. But that was not necessary; as the charge of a legacy upon the real estate of the testator, either in aid of or in exoneration of the personalty, may be and frequently is created by implication merely. The personal estate is the primary fund for the payment of debts and legacies. If the testator therefore gives a legacy without specifying who shall pay it, or out of what fund it shall be paid, the legal presumption is that he intended it should be paid out of his personal estate only; and if that is not sufficient the legacy fails. So if he directs his executors to pay a legacy without giving to them any other fund than the personal estate out of which they can pay it. But where the real estate is devised to the person who by the will is directed to pay the legacy, it has frequently been decided that such legacy is an equitable charge upon the real estate so devised, although the devisee is also the executor, or is the residuary legatee of the personal estate ; unless there is something in the will itself to indicate a contrary intention on the part of the testator. Thus in the case of Alcock v. Sparhawk, (2 Vern. Rep. 228,) where the testator devised his real estate to his brother, and then gave a legacy of £200 to the complainant, to be paid by his executor within five years, and appointed the devisee the sole executor of his will, desiring him to see it performed; it was held that the real estate devised to the brother was charged with the payment of the legacy, the personal estate proving insufficient for that nurpose. (See also Aubrey v. Middleton, 2 Eq. Ca. Abr. 497; Clowdsley v. Pelham, 1 Vern. Rep. 411; Elliott v. Hancock, 2 Id. 143; 2 Story’s Eq. 494, note 2.) In the case of Webb v. Webb, (Barn. Ch. Rep. 86,) where the testator in terms charged all his real estate with an annuity to his eldest son, and an annuity to his wife for her jointure ; and devised a part of his real estate to his second son in strict settlement, and the residue of his real and personal estate to the same son in fee, and then directed that the said son should pay and discharge all debts and sums of money which the testator should owe at the time of his death, and all the legacies and sums of money bequeathed by his will, and gave certain legacies to his younger children ; Sir Thomas Parker, sitting for the lord chancellor, decided that the real estate devised in strict settlement was charged with the payment of these legacies to the younger children, that being the only real estate undisposed of at the time of the testator’s death. In that case, as in the one now under consideration, there was no express charge of the legacies to the younger children upon the testator’s real estate ; but the charge was implied from the fact that the second son, to whom the real and personal estate were devised, was directed to pay those legacies. The subsequent case of Lypet v. Carter, (1 Ves. sen. 499,) decided by Sir John Strange the master of the rolls, in 1750, is also very similar to the one now under consideration. In that case, as in this, the testator commenced his will with a declaration of his intention to dispose of his worldly estate, and gave a legacy of £ 100 to his daughter, which he directed his executor to pay, within a month after the decease of the mother, to whom he gave a life interest in his real estate, with remainder to his only son in fee. And he gave his residuary estate also to his son and made him his executor, and appointed two other persons trustees and overseers of his will. And though the son renounced the execution of the will, upon its being admitted that the personal estate was insufficient to answer the charge it was held that the legacy must be raised out of the sale of the real estate devised to the son, who by the will was directed to pay the legacy. In the present case the legacies to the daughters are not wholly charged upon the farm, specifically devised to the son who is directed to pay them, any more than in the case of Lypet v. Carter. For here, as in that case, the residuary estate which was also given to the son was likewise chargeable, and was the primary fund for their payment. And the son who has accepted of the estate devised is also personally liable for the payment thereof. Still there is an equitable charge upon the real estate if there is no other fund out of which the legacy can be paid. (See also Hassel v. Hassel, 2 Dickens, 527.) The rule as to the equitable charge upon the estate devised if the same where the real estate is devised, either to the heir at law or to a stranger, upon condition that he pay the legacy. In the first case, although the devise to the heir is void, at law, yet in equity it is good as an equitable charge upon the land of the heir who is directed to pay it. (Smith v. Atterby, 3 Rep. in Ch. 93. Freem. Ch. 136, S. C.) And in the other case, where the devise is to a stranger upon condition to pay the legacy, though the legatee cannot enter, yet this court will convert the heir at law into a trustee for the legatee, for the purpose of charging the land with the payment of the legacy. Upon a full examination of the authorities, therefore, I am satisfied that where real estate is devised upon condition to pay a legacy, or with a direction to the devisee to pay the legacy in respect to the estate so devised to him, and because that real estate has thus been devised, such real estate is in equity chargeable with the payment of the legacy, unless there is something in the will to rebut the legal presumption ; or from which it can be inferred that the testator intended to exempt the estate devised from that charge.

If the devisee in this case had sold the premises for cash, and had received the purchase money, a question might have arisen whether the vendee was bound to see that the purchase money was applied to pay off the legacies. No such question can arise, however, in the case of a sale on execution, against the devisee, for the payment of a debt to a third person ; as the purchaser, from the very nature of the transaction, has notice that the purchase money is not intended to be applied to pay off the legacies. And the purchaser claiming his title through the will, and having thereby a constructive notice of its contents, he takes the estate subject to the equitable claims of the legatees thereon.

It is insisted, however, by the complainants’ counsel that as Peggy Drum, one of the legatees, died before her legacy became payable according to the terms of the will, it became lapsed for the benefit of the devisee of the estate. It is unquestionably settled, as a general rule, that where there is a legacy chargeable on land, and payable at a future day, the same becomes lapsed if the legatee dies before the time appointed for its payment. The leading case on this subject is Poulet v. Poulet, (1 Vern. Rep. 204, 323,) decided by Loi’d Guilford, and afterwards affirmed upon appeal to the House of Lords. The rule was originally applied to the case of portions directed to be raised for younger children, upon their coming of age or being married. And so long as it was confined to such cases, the courts probably did no direct violence to the intention of the testator; though, even in the relation to such portions, there does not appear to have been any good reason for holding that so much of the legacy or portion as was payable out of the personal estate was vested and payable, and as to the part thereof which could be satisfied only out of the real estate on account of a deficiency of the personalty, that the testator did not intend it should be raised in the event which had occurred; when the language of the will, which was the only evidence of his intention, was the same as to both. It is certainly difficult to reconcile some of the cases that were decided within the first fifty or sixty years after the decision in Lord and Lady Poulet’s case, with others which were decided before or since that time. The case of Innocent v. Taylor, decided by Lord Finch of Daventry, afterwards the Earl of Nottingham, in 1673, (Cases Temp. Finch, 112,) certainly is in conflict with many of the cases subsequently decided on this subject. And although Lord Hardwicke pronounces the book in which this case is reported a book of no authority, he admits there are several' cases, decided about the same time when Innocent v. Taylor is said to have been decided, containing similar principles. (1 West’s Rep. 504.) And it now seems to be settled, as a general restriction of the rule that a legacy charged upon real estate becomes lapsed by the death of the legatee before the time appointed for payment, that the legacy only lapses where the payment is postponed by the testator in reference to the situation or circumstances of the legatee personally, and not where it is postponed for the convenience of the estate or fund out of or in reference to which it was given. This distinction was glanced at by Lord Hardwicke, in Lowther v. Condon, (2 Atk. Rep. 128;) and it was acted on in many other cases which are referred to in Mr. Saunders’ note to that case. It was also distinctly recognized by Baron Alderson in the recent case of Goulbourn v. Brooks, (2 Young & Coll. Rep. 539,) as a settled rule of law, that if the payment of the legacy is postponed for the convenience of the estate, and not as a condition annexed to the person of the legatee, the legacy does not lapse by his death before the time appointed for its payment. The same principle was also recognized by that distinguished equity judge, Sir John Leach, the late master of the rolls, in Murkin v. Phillipson, (3 Myl. & Keen’s Rep. 261.) And the true rule, as it now exists both here and in England, in respect to the vesting of legacies payable out of real estate, is thus correctly laid down by the present learned vice chancellor of the first circuit, in the case of Marsh v. Wheeler, (2 Edw. Ch. Rep. 163:) “ Where the gift is immediate but the payment is postponed, for instance until the legatee attains the age of twenty-one years or marries, there it is contingent, and will fail if the legatee dies before the time of payment arrives; but where the payment is postponed in regard to the convenience of the person and the circumstances of the estate charged with the legacy—and not on account of the age, circumstances, or condition of the legatee—in such a case it will be vested and must be paid, although the legatee should die before the day of payment.”

In the case under consideration, it is perfectly evident that there was nothing in the situation of the legatees themselves which required the postponement of the payment of their legacies. One of them was already married; and although the age of the other does not appear, it is probably she was not in her infancy, as no provision whatever is made for her support during the life of the mother. The testator, therefore, instead of dividing his property equally among his children at the time of his death, gives a portion thereof to his widow for life, and the residue to bis son in fee subject to the payment of these pecuniary legacies to his sisters. And the payment of these legacies was unquestionably postponed for his benefit, and for the benefit of the estate devised to him; so that they should not become due and payable until he had a reasonable time to raise the money after he should come into the full possession and enjoyment of the estate. These legacies therefore became absolutely vested in the legatees at the death of their father, though payable at a future day. And upon the death of Peggy Drum, in 1816, her legacy survived to her personal representatives, for the equal benefit of her brother and sister and her mother who were entitled to the same under the statute of distributions. And upon the death of the mother in 1837, her share of the daughter’s legacy survived to her personal representative, for the benefit of those who were entitled to a distributive share of her estate. Mrs. Heaxt is therefore entitled to be paid the amount of her legacy of $1000, with interest on the first payment from the end of one year from the death of her mother and discounting the interest on the payments which have not become due, which together with her costs must be first paid out of the proceeds of the mortgaged premises. She also, through the personal representatives of her sister and mother, will be entitled to the one half of the legacy which was given to her deceased sister.

The defendent A. Drum, however, has no claim either at law or in equity for the other half of that legacy. By the will, the payment thereof is charged upon him personally; and he has received the land as an equivalent for the payment thereof, although for the protection of the rights of the legatees this court gives them an equitable lien upon the land itself as an additional security. As the personal representative of the deceased legatee, therefore, would have the right to resort to him personally for the payment of this legacy, this court would never permit such representative to enforce the payment of the legacy for his benefit, by charging it upon the land in the hands of a purchaser under him. But on the contrary, as he has accepted the devise and is therefore primarily liable to pay these legacies, if they are charged upon the land for the benefit of others the owner of the land has an equitable claim to a remedy over against him for the amount which may be so charged.

There is a technical difficulty in this case in disposing of the charge as to the legacy of the deceased sister, from the fact that neither her personal representative nor the representative of the deceased mother are before the court. The premises must therefore either be sold subject to the equitable lien of so much of that legacy as does not in fact belong to A. Drum as a distributee of his sister’s and of his mother’s estates; or the amount of that legacy must be brought into court, to be hereafter disposed of according to equity when such personal representatives are appointed. But in neither event is the defendant A. Drum entitled to costs. And there must be a reservation in the decree of a right to the complainant, or to any of the other defendants who are interested in the land, to apply to the court for such decree over against him as may be just as between him and them.

The master’s report is confirmed, except so much thereof as assumes to settle the question as to the prior lien of the legacies. And as the amount of the legacies is a matter of mere computation, a decree for a sale may be immediately entered, containing the proper directions as to the distribution of the fund in conformity with this decision, and reserving such directions as cannot now be given. The payment of what is due to Mrs. Heaxt must be subject to the usual restriction, toj protect the wife’s equity against the husband or his creditors.

Decree accordingly.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Sinclair vs. Sandford and others.
    Where the solicitors of the complainant and defendant do not reside in the same county and within forty miles of each other, the service of a copy of the complainant’s bill upon the agent of the solicitor of the adverse party, within the time prescribed, is a sufficient compliance with the provisions of the 35th rule ; and a service of the copy on the solicitor personally is not necessary in such a case.
    March 5.
    This was an application on the part of the defendant L. H. Sandford to dissolve the injunction which had been issued in this cause, on the ground that a copy of the bill had not been served on his solicitor within ten days after notice of his appearance, as required by the thirty-fifth rule of this court. The complainant’s solicitor lived in the city of New-York, and the solicitor for the defendant in the county of Onondaga. And at the time notice of this application was sent to be served, in New-York, a copy of the bill had not been received by the defendant’s solicitor. But it appeared, from the affidavit in opposition to the motion, that a copy of the bill was served on his agent in New-York within the time required by the rule. The only question therefore was whether the service upon an agent in such a case was good service.

      J. Rhoades, for the defendant.

      J. B. Staples, for the complainant.
   The Chancellor.

The provision in the fourteenth rule is genera], that when the solicitors for the adverse parties do not reside in the same county and within forty miles of each other, the service of papers may be made on an agent. And there is nothing in the nature of this case to make it an exception to the rule that a service upon an agent is as good service as if made on the solicitor himself. The object of giving ten days, to deliver a copy of the bill, where the solicitors for the respective parties resided more than twenty miles from each other, was to give to the complainant’s solicitor sufficient time to copy and serve the bill, where he lived at a great distance from the solicitor of the adverse party or his agent; or where it might require more than twelve days to receive the notice of retainer served on his agent, and to copy and serve the bill. Where the residences of the respective solicitors are such as to authorize a service of the copy of the bill on an agent, the defendant’s solicitor therefore must wait until he has had time to hear from his agent, before he can give notice of a motion to dissolve the injunction, without incurring the risk of subjecting his client to costs if the bill has been duly served on the agent within the time required by the rule.

In this case the notice of the motion was undoubtedly given in good faith. But as the defendant’s solicitor, after he ascertained that the bill was duly served on the agent, insisted upon the correctness of his own practice, and required the payment of costs as a condition of abandoning his motion, and as he is found to be in the wrong in point of practice, he must pay the costs of opposing the motion; will L '•asp. will be inserted in the order denying the motio. irs.


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    The People, ex rel. Hunt & Seaman, vs. Wheeler, coroner, &c.
    The sheriff, or other officer, to whom an attachment for a contempt has heen delivered to be served, has the whole time of the actual sitting of the court upon the return day of the attachment to return the same, unless he is specially directed by the court to return it immediately.
    Where the party prosecuting the attachment wishes to expedite the proceedings, he may, upon an affidavit of the delivery of the attachment to the proper officer a sufficient time before the return day to have enabled him to serve and return it, and that it has not been returned, move the court, previous to its adjournment on the return day, for an order that such officer return the attachment sedente curia on that day or that an attachment issue against him, upon filing the register’s or clerk’s certificate of his default. But it is irregular to take out an attachment against the officer during the actual sitting of the court on that day.
    This was an appeal from a decision of the vice chancellor of the first circuit, convicting the defendant, as coroner of the city and county of New-York, for a contempt in not returning an attachment issued against the sheriff. The attachment was made returnable on the 25th of September, at ten o’clock in the forenoon, and J. M. Lowndes was deputed by the coroner to serve and return it. He stated in his affidavit that he attended with the sheriff at the time the attachment was returnable, and found the vice chancellor engaged delivering opinions ; that having business in the sheriff’s office, which was directly across the hall from the vice chancellor’s court room, he went in there for a few minutes, and that he returned before eleven o’clock and made return of the attachment, and as he believed before any motion was made against the coroner for not returning it. The solicitor for the relators, on the contrary, swore that he waited until between eleven and twelve o’clock, and finding, by a search at the clerk’s table, that the attachment had not then been returned, he obtained an order for an attachment against the coroner, and immediately left the court; having, as he stated in his affidavit, business in the circuit court in Kings county.

      March 5.

      N. B. Blunt, for the appellant.
    J. W. Merritt, for the relators.
   The Chancellor.

It is charged in the affidavit of Mr. Lowndes that the obtaining of an order for an attachment, during his temporary absence in the sheriff's office, was a mere trick on the part of the solicitor for the relators. But this is denied in the affidavit of the solicitor; who also denies that he had any knowledge that Mr. Lowndes was attending there to return the attachment for the coroner. It appears, however, that the sheriff was in the court while the vice chancellor was pronouncing his decisions ; and as his office was but a few feet from the court room, it certainly would have been more courteous to have inquired of him whether he was attending there upon the attachment issued against him, before proceeding to make more costs by a motion against the coroner. Even if the solicitor was technically right in this case, therefore, I think the excuse of the coroner was such that the vice chancellor should not have convicted him for a contempt; but should have discharged the attachment against him, without charging him with the costs, which would have been wholly unnecessary if ordinary courtesy towards an officer of the court had been observed.

1 have arrived at the conclnsion, however, that the proceedings on the part of the relators were technically irregular, and that the coroner was not in default for not returning the process against the sheriff the very moment that the time at which it was made returnable had arrived. The appellant was therefore entitled to be discharged, from this proceeding against him as for a contempt, as a matter of strict right. The statute requires that the sheriff, or other officer, to whom an attachment for contempt is delivered to be served, shall return the same by the day specified therein, without any previous rule or order for that purpose ; and that in case of his default an attachment may be issued against him, of course, upon being allowed by a judge of the court. (2 R. S. 537, § 17.) Under this statutory provision it has been held that the officer who serves the attachment must return the same to the court, at the place where such court is held, on the return day of the attachment, and during the actual sitting of the court on that day. This is sufficiently onerous upon the officer, who has no opportunity to make an excuse before he is liable to arrest upon an attachment against himself which by the statute is declared not to be bailable; and which may therefore subject him to imprisonment for some considerable time, before he can have an opportunity to be heard to purge his contempt. But such a construction of the statute seemed to be necessary to carry into effect the intent of the legislature. It would, however» be too rigid a construction of the statute to require the officer to return the process at the very first moment when it could be returned ; and that too at the peril of the loss of his personal liberty, for some time at least, if he neglected to do so. Where the officer is present in court, on the return day of the attachment, he may undoubtedly be ordered by the court to return the process instanter, so that proceedings may be forthwith had thereon, unless he can show some excuse for delaying the return. But where the proceeding against him is ex parte, and during his absence from court, as was the case here, it is irregular to take out an attachment against him, for not returning the process, until after the rising of the court on that day. In other words, he has the whole time of the sitting of the court on that day to return the attachment, unless he is specially directed by the court to return it immediately. If the party prosecuting the attachment wishes to expedite the proceedings, he may, upon an affidavit of the delivery of the process to the proper officer, a sufficient time before the return day to have enabled him to serve and return it, and that it has not been returned, move the court, before its adjournment on that day, that an attachment issue against such officer unless the process is returned by him sedente curia. And in case it is not returned before the adjournment of the court, he may thereafter, upon a certificate of the register or clerk of such default in returning the process, proceed upon that order by attachment against the officer.

In this case the process was actually returned long before the adjournment of the court on the return day thereof. The appellant, therefore, was not guilty of a contempt; and the order appealed from must be reversed. And as the relators were endeavoring to charge the appellant with a useless bill of costs, by holding him to what they knew to be a rigid course of proceeding, and are found to be themselves in the wrong, they must pay his costs of this appeal and of the proceedings upon the attachment against him; to be taxed together in one bill. The appellant must be discharged from the attachment. But as that process was issued in pursuance of an erroneous order of the court itself, I shall not direct the attachment to be set aside, so as to subject the relators and their solicitors to an action of false imprisonment, provided the costs are paid within twenty days after service of the taxed bill on their solicitor. If the costs, however, are not paid, the appellant is to be at liberty to apply to the vice chancellor to set aside the attachment, and the order upon which it was founded, for irregularity.


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    Palmer & Dutcher vs. Foote.
    The owner of a bond and mortgage who has recovered a judgment upon the bond, and has exhausted his remedy at law upon the judgment by the re. turn of his execution thereon unsatisfied, may proceed by a creditor’s bill against the judgment debtor without a previous foreclosure of the mortgage ; except in a case where the mortgaged premises have been transferred to a third person as the primary fund for the payment of the mortgage debt
    As the mortgaged premises cannot be sold on an execution, upon a judgment recovered for the mortgage debt, the costs of the suit upon the bond are not a lien upon the mortgaged premises.
    Whether the owner of the bond and mortgage, after he has exhausted his remedy at law upon the bond, can make his creditor’s bill a bill of foreclosure also, so as to embrace both objects in one suit; queere 1

    This case came before the court upon the defendant’s plea to a creditor’s bill, upon a judgment recovered by the complainant Butcher, in the name of the complainant Palmer, on a bond given by the latter payable by instalments, which bond had been duly assigned to Butcher. The defendant pleaded in bar, both of the discovery and of the relief sought for by the bill, that at the time of the execution of the bond upon which the judgment was recovered, he also executed to Palmer a mortgage on real estate, to secure the payment of the same debt; which mortgage had also been assigned to Butcher together with the bond, and was still held by him as a security for the same debt, and had not been foreclosed.
    March 5.

      I. Harris, for the complainants.
    S. G. Haven, for the defendant.
   The Chancellor.

The question presented in this case is whether a creditor by bond and mortgage, who has proceeded to judgment and execution on his bond, is bound to proceed and foreclose his mortgage before he can file a bill to obtain satisfaction of the debt out of the defendant’s personal estate, which is placed beyond the reach of the execution at law. As between the creditor and the mortgagor I can sec no legal or equitable ground for requiring the creditor to proceed and foreclose the mortgage, instead of continuing the proceedings which he has already commenced to obtain satisfaction out of the defendant’s personal estate. If the mortgaged premises are in fact sufficient to satisfy the debt, and no other person has a subsequent lien or in«umbrance thereon, the defendant has it in his power to pay the debt either out of the real or personal estate as he may think proper; as he has nothing to do but to convert his property into money and pay off the judgment, without the expense either of a bill of foreclosure or of a creditor’s bill. And if subsequent incumbrancers or purchasers have acquired rights in the mortgaged premises, so that as between them and the mortgagor the previous lien ought in equity to be discharged by him out of his other property, they certainly would have some cause to complain if the •creditor should abandon his proceedings against the personal estate of the debtor, for the purpose of exhausting the other fund for the satisfaction of his debt.

If it appeared from the plea that the defendant had sold the mortgaged premises subject to the payment of the mortgage debt by the purchaser, or that the premises had been bid in on execution by a stranger subject to the lien of the mortgage, so that the mortgaged premises were in equity the primary fund for the payment of the mortgage money, and that the mortgagee with a knowledge of that fact was proceeding to compel the defendant to pay the debt out of his own property, contrary to equity, a very different question would be presented. But there is nothing in this plea to show that any injustice can be done to the defendant by compelling him to apply his personal property to pay the debt.

Besides; the complainant has no remedy to recover the costs of the suit at law except by this proceeding; as by the provisions of the revised statutes the mortgaged premises cannot be sold on execution upon this judgment. (2 R. S. 368, § 31.) There would, therefore, be great injustice to the complainant in compelling him to resort in the first place to a bill of foreclosure, by which he might lose his costs of his previous proceedings at law against the other property of the defendant.

I think the complainants in this case, after the return of the execution at law unsatisfied, had a right to elect "whether they would proceed by a bill of foreclosure to reach the mortgaged premises, or by a creditor’s bill to reach the other property of the defendant which was also beyond the reach of the execution at law. And perhaps both objects might have been attained by the filing of a single bill; unless there are other facts in the case, that do not appear here, which would render such a bill multifarious.

The plea must therefore be overruled with costs, and the defendant must answer the bill within thirty days.


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    Ainslie, receiver, &c. vs. Radcliff, administrator, &c. and others.
    Where the decedent died insolvent and intestate, leaving several outstanding and unsatisfied judgments against him, two of which were docketed more than ten years previous to his death and the others within that period; Held, that the owners of the judgments were to be paid out of the personal assets of the intestate, in the hands of his administrator, according to the priorities in the times of docketing their respective judgments; without regard to the fact of some of the judgments having been docketed more and some less than ten years.
    By the common law one judgment against the decedent had no preference over another judgment, in payment out of his personal estate, provided both were docketed at the time of his death. And his personal representative had the right to retain for a junior judgment due to himself, or to give a preference to one judgment creditor over another, without regard to any priority in point of time of the docketing of their several judgments; unless some proceedings had taken place, subsequent to the death of the decedent, by which one judgment creditor had obtained a preference over others of the same class.
    The usual direction., contained in decrees for the distribution of the personal estate of a deceased debtor among his creditors, to pay the debts in a due course of admininistration and without preference, is not a direction to dis. regard legal priorities; but it is a direction to pay those debts which are entitled to be first paid, according to their legal priorities, but rateably and without preference as to debts of the same class, where no legal priority exists.

      By the provisions of the revised statutes, judgments docketed, and decrees enrolled, are entitled to preference in payment, out of the personal estate of the deceased debtor, according to the priority in point of time of docketing the judgment, or of enrolling the decree; and without reference to any supposed lien of the judgment or decree upon the real estate of the decedent. And a judgment which had been docketed, or a decree which had been enrolled, more than ten years before the death of the decedent, is therefor entitled to be paid out of his personal estate, in preference to a junior judgment or decree which had been obtained within the ten years.
    March 19.
    This was an appeal from a decision of the surrogate of the city and county of New-York, settling the priorities, as between different judgment creditors of the decedent, to payment out of the personal estate. G. T. Mumford, the decedent, died in April, 1831, insolvent and intestate, leaving several judgments outstanding against him, two of which were docketed more than ten years previous to his death. Some of the claims in favor of the estate having been subsequently recovered under the French and Neapolitan treaties, his personal representative was cited to account before the surrogate. And a question there arose between the different judgment creditors as to the priorities to which they were entitled in the payment of their debts; the assets in the hands of the administrator being insufficient to pay all. The creditors whose judgments were recovered within ten years, claimed that the priority referred to in the article of the revised statutes, relative to the duties of executors and administrators in the payment of debts and legacies, referred to the priority of the judgment or decree as a lien upon real estate ; and that they were therefore entitled to a preference in payment over the creditors whose judgments, were of more than ten years standing. The surrogate, however, decided that the judgments were to be paid according to the priorities in the times of docketing the same, whether the judgment had been docketed more or less than ten years. From this decision R. Ainslie, who represented the plaintiffs in one of the junior judgments, appealed to the chancellor.

      W. C. Noyes, for the appellants.
    The decree of the surrogate, giving a preference to the several judgments against Gurdon S. Mumford, the intestate, in the order of time of docketing, without regard to their legal lien, is erroneous and should be reversed. The statute in regard to the distribution of the estates of deceased persons prefers judgments docketed and decrees enrolled in the order of their lien upon lands. (2 R. S. 87, § 27, 38. Revis. Notes, pt. 2, ch. 6, p. 49.) It is to be presumed that no innovation upon the common law rules of distribution was intended, unless it plainly appears. (2 Inst. 301. Dwar. on St. 694, 695.) Other statutes in pari materia are to be taken with this as if they constituted one system and the whole is to receive a harmonious construction. (Dwar. 699.) The words used in the statute have no necessary relation to time; on the contrary, they rather mean legal priority, as defined by law. By the common law there was no precedence of time in judgments against the testator; the executor paid which he pleased first. Judgments against the executor were paid in the order of recovery; and in chancery judgments against the testator, according to their precedence at law. (Jac. Law Dic. Priority. Id. Executor, 6. Toll. Law of Ex. 264, 268. Hickey v. Hayter, Adm’x, 6 T. R. 384. 4 John. Ch. Rep. 619.) The legislature intended simply to put judgments against the testator on. an equal footing in respect to the real and personal estate. The course of legislation shows this very clearly, especially by contrasting the section as repealed with the one adopted. (2 R. S. 360, § 12. Id. 359, § 4. 1 R. L. of 1813, p. 501, § 3. 6 T. R. 384. 2 R. S. 181, § 94, 95, 96, 97.) The rule contended for on the other side, and sustained by the surrogate, is uncertain and contradictory ; for if time alone is referred to, as to a decree, which shall be selected, there being three distinct periods, 1. Time of entering; 2. Enrolment, which cannot be short of thirty days from making it, (R. S. 181, § 97;) 3. Time of docketing it in the supreme court. Other statutes in pari materia, conclusively show a different rule of construction. The law in regard to a redemption by one judgment creditor from another. (Laws of 1820, p. 167, § 3.) It was settled by the supreme court that the words “prior judgment” meant priority of lien. (7 Cowen, 540.) As to judgments for taxes paid by one co-tenant, they “ have priority” over other judgments as to the lands assessed. (1 R. S. 410, § 75.) By the statute regulating proceedings against next of kin, legatees, heirs and devisees, (2 R: S. 454, § 48,) judgments have a preference over debts of the next of kin, heir, &c. (2 Paige, 592.) By the same law, as to a second redemption under the revised statutes, where the word “ prior” is used in the same sense as in the laws of 1820, p. 167. (2 R. S. 372, § 55, (2).) In the law regulating the order of payment by heirs, devisees, next of kin and legatees, the same terms are used. (2 R. S. 453, § 32. Revisers’ Rep. pt. 3, ch. 8, p. 13.)

      A. H. Dana, for the respondents,
    William Radcliff, administrator, and L. Mumford and others, heirs of G. S. Mumford, deceased. Lands of a deceased person are subject to payment of debts in the same order that the personal estate is in respect to the priority of the judgments. The decease of the debtor makes no difference in the lien. The statute is unconditional that the judgment shall bind and be a charge upon lands for ten years, and after ten years it shall cease to bind, &c. as respects purchasers and subsequent incumbrances. It still, however, remains a lien, but the subsequent incumbrances become prior in lien. (Ex parte v. The Peru Iron Company, 7 Cowen, 540.) The revival of the judgment by scire facias, against the executor or administrator, or heir, does not change the order of lien. The judgment still takes effect from the date that it was originally docketed. (Per Savage, Ch. J. in Peru Iron Company, 7 Cowen, 553, 559.) The scire facias is not an original proceeding, but a continuation of the original action, the same as scire facias to revive after a year, where no execution has been issued; and the statute in respect to heirs and devisees does not allow any preference by reason of proceedings against the heir or devisee. (Wright v. Nutt, 1 T. R. 388.) He is bound by the priority of the judgments against the deceased and that only; and this corresponds with the provision of the statute in respect to executors, that no preference shall be given to a judgment recovered against such executor or administrator. (2 R. S. 87, § 28.) Judgments over ten years rank with respect to each other as they originally did. Such is the construction given by the court in the case of the Peru Iron Company. A rule was made under a judgment more than ten years old; held, that another judgment of still older date was not junior to the one on which the rule was made, and it was not necessary to redeem. (7 Cowen, 559.) The lien not being affected by the death of the debtor, the priority of judgments will not be affected thereby, but will be charged by lapse of time the same as if the debtor had lived. There the order of priority of judgments against the estates of deceased persons is, 1. Judgments docketed within 10 years, according to their dates; 2. Judgments docketed more than 10 years since, according to their dates.

      Geo. Wilson, for the respondent Harris Wilson.
    The statute prefers judgments docketed and decrees enrolled according to the order of time in which they are respectively docketed or enrolled. The word “ priority” is used in reference to order of time. There is no reason to infer that any construction is to be given to the statute, from the rules by which statutes are to be interpreted, other than the ordinary meaning of the word points out. It is evident that the statute changes the common law rule of distribution to jugdment creditors of a deceased person, and instead thereof appoints a certain order in which executors and administrators are to pay judgments docketed against the deceased. The reasons for limiting the lien of judgments upon real estate to ten years, do not apply to the order of distribution amongst judgment creditors, by executors and administrators. The statute making judgments liens upon lands in the order in which they are docketed, for a period of ten years, clearly shows that precedence in time is considered as entitling to precedence of payment. (Ex parte The Peru Iron Co., 7 Cowen, 540.) And the supreme court have decided, that “Where several judgments are of more than ten years standing, they rank in relation to one another according to their actual priority of date the same as if the act, (1 R. L. 50, § 1,) had never been passed.” (Ibid.) There is no reason to infer that any technical legal sense has been conferred upon the word " priority” from its use in the statutes or from any discordant or conflicting operation of the statutes. The word “ priority,” when defined as a legal term, signifies “ an antiquity of tenure in comparison with another less ancient,” (Jac. Law Dic., Priority;) the very spirit of the meaning here contended for. In all the cases cited the term is used in no other sense than that which its ordinary signification warrants.
   The Chancellor.

The only question which arises on this appeal is as to the meaning of the word priority as used in the third subdivision of the twenty-seventh section of the article of the revised statutes relative to the duties of executors, &c., in the payment of debts and legacies, (2 R. S. 87.) That section directs the payment of debts in classes; and the next section provides that no preference shall be given to one debt over any other debt of the same class, except as to the debts specified in the third class. This third class of debts, as to which a preference is allowed to one debt over another debt of the same class, embraces all judgments docketed and decrees enrolled, against the deceased ; which are to be paid according to the priority thereof respectively. The most natural reading of this clause of preference certainly is that which has been given to it by the surrogate; that is to refer the term priority to the time when the judgment was docketed, or the decree was enrolled.

I agree with the counsel for the appellant that, according to the settled law in England, as it existed there at the time of our declaration of independence, one judgment against the decedent had no preference over another judgment in payment out of his personal estate; provided both were docketed at the time of his death. And that the personal representative had the right to retain for a junior judgment due to himself, or to give a preference to one judgment creditor over another, without regard to any priority in point of time of the docketing of their several judgments; unless some proceedings had taken place, subsequent to the death of the decedent, by which one judgment creditor had ob« táined a preference over others of the same class. As early as the 12th of James 1st, it was held by Sir Augustine Nicholles that if A. recovers a judgment against B. and after-wards C. recovers against him, and B. then dies, his executor may pay which of the judgments he pleases; the latter judgment if he will, for they are all one as to him. (1 Rolle’s Abr. 926, Executors R. Judgments in vie testator, 3.) So it is said by Wentworth, that between one judgment and another, had against the testator, precedency or priority in point of time is not material, but he who first sueth execution must be preferred ; and before any execution sued it is at the election of the executor to pay whom he will first— Yea, if each bring a scire facias upon his judgment the executor may yet confess the action of which he will first, notwithstanding the scire facias was brought by the one before the other. (Went. Off. of Ex’r, Am. ed. of 1832, p. 269. See also Com. Dig. Administration, C. 2.) And absolute decrees in chancery against the decedent, for the payment of money, stood upon the same footing as judgment docketed ; and were, therefor, protected in this court, although the payment of a decree in preference to a judgment could not be pleaded at law as a defence to his personal representatives. (2 Will. Law of Executors, 660.) But where the debts were of an equal grade—as if there were several judgments or decrees against the testator or intestate, one of the creditors might get a preference over another by bringing a suit, or scire facias, against the personal representative and obtaining the first judgment or decree against the estate in his hands. And then, upon a suit in this court for the administration of the assets, the creditor who had thus obtained a preference, by judgment or decree against the personal representative, was entitled to retain that preference as against other creditors of the same class. (Joseph v. Mott, Prec. in Chan. 79.) And this is the preference referred to by Sir Joseph Jekyl and Lord Talbot, in the case of Morrice v. The Bank of England, (Ca. Temp. Talbot, 218.)

Whether the late Chancellor Kent overlooked this distinction, between judgments against the decedent and judgmerits against the personal representatives, in the case of Thompson v. Brown, (4 John. Ch. Rep. 619,) or whether he meant to confine the rule of preference, as laid down by him in that case, to judgments and decrees obtained against the personal representative, it is difficult to determine from the report; as it does not appear from the report of that case that any judgments or decrees had been obtained either against the decedent or against his personal representatives. It is evident, however, that my learned predecessor misapprehended the effect of the decision in the case of Morrice v. The Bank of England, if he supposed that the direction in the decree, to pay the creditors, who had not obtained judgments or decrees against the executrix, in the due course of administration, was a direction to pay them without reference to the legal priority which a specialty debt had over a debt by simple contract in the administration of legal assets. A direction to pay debts in a due course of administration, is by the very force of the terms used a direction to give a preference, so far as respects the legal assets, to one class of creditors over another, where the law itself has given such a preference. It is therefore a direction to pay docketed judgments and final decrees against the decedent, in preference to specialty debts; and to pay the latter class of debts in preference to those by simple contract only. The decision of Sir John Leach in Nunn v. Barlow, (1 Sim. & Stu. Rep. 588,) was explicit, that the usual decree in a suit for the administration of the assets of the deceased debtor did not affect the legal priorities of his creditors. He therefore allowed the personal representative to retain assets, which came to his hands subsequent to the decree, in satisfaction of his own debt; although the effect of such retainer was to give such representative a preference over other creditors of the same class. (See also Ram on Assets, 317; 2 Will. Law of Ex. 682.)

But it is evident from the note of the revisers that they considered the case of Thompson v. Brown as settling the law differently from what I have supposed it to have previously been, on both of these questions. They understood the decision in that case to be that judgments and decrees, obtained against the deceased debtor, were entitled to preference in payment, out of the personal estate of the decedent, according to the priority in point of time of recovering the judgment or obtaining the decree; and that in the administration of legal as well as of equitable assets, in this court, specialty creditors were deprived of their common law right of preference over simple contract creditors, as well as being placed upon terms of perfect equality as between all the creditors of the same class. The section of the revised statutes in relation to the order to be observed, in the payment of the debts of the decedent, by his personal representatives, was therefore framed accordingly. And the legislature added the word docketed, after the word judgments, in conformity with the previous statute on that subject. The word enrolled was also added, after decree, for the purpose, 1 presume, of excluding decrees which were not final and perfected at the death of the decedent. That this priority was not intended to have any reference to the supposed lien of the judgment or decree, upon the real estate of the debtor is evident from the fact that a prior decree, if enrolled, although it is not docketed so as to make it a lien upon real estate, is to be paid in preference to a younger judgment which is docketed, and which may therefore be a lien on the decedent’s real estate, if he had any, within the jurisdiction of the court. The preference which the common law gave to judgment debts over debts by specialty, or debts by simple contract, was not founded upon any supposed lien of the judgment upon the real estate of the decedent. For the preference extended to the judgments of all the inferior courts of record in England, and to decrees in chancery, which were not liens upon real estate, (2 Will. Law of Ex. 657.) But the rule, as to preferences in payment, was founded upon the common law principle that a specialty debt was a debt of a higher nature than a debt by simple contract, and that a debt of record was of a higher nature than either.

The decision of the surrogate in ‘this case, that, by the provisions of the revised statutes, judgments docketed and decrees enrolled are entitled to preference in payment, out of the personal estate of the decedent, according to the Pr*ority ™ P°int of time of docketing the judgment, or of enrolling the decree, without reference to any supposed lien of the judgment or decree upon his real estate, was therefore correct. The sentence and decree appealed from must be affirmed with costs ; and the proceedings must be remitted to the surrogate with directions to proceed and ascertain the amounts due upon the several judgments, or upon such of them as are necessary to exhaust the assets which shall be ascertained to be in the hands of the administrator upon a final accounting by him; and to ascertain who are the present owners of such judgments, either by assignment or otherwise, to the end that a decree may be made for a final distribution as soon as practicable ; and that so much of the fund, now in the hands of the administrator, as is not necessary to be retained to abide the result of the litigation in reference thereto, may in the meantime be decreed to be paid to the persons entitled to the same, immediately.


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    The Commercial Bank of Lake Erie vs. Meach and others.
    Where E. recovered a judgment in the supreme court against M. & J. as joint debtors, and an execution was issued thereon and returned unsatisfied, and afterwards J., upon application to the supreme court, obtained an order staying all proceedings on the judgment as against him, in order that he might make his defence to the action; and E. without proceeding at law against J., filed a creditors’ bill against M.; Held, that the bill could be sustained against M. without making J. a party to the suit, or previously obtaining a verdict, and taking out an execution against J.
    Whether such bill could be sustained if the defendant M. should set up in his answer, and establish by proof, that J. was both legally and equitably liable to E. as a joint debtor with M. and was bound to contribute towards the payment of the debt; quaere ?

    Where a creditors’ bill is filed upon a joint judgment against several defendants, some of whom are not served with process, all the joint debtors, although not served with process, must be made defendants; unless the complainant avers in the bill that the persons not made parties were mere sureties for the other defendants, or were not legally or equitably liable to contribute towards satisfaction of the debt, or were insolvent, or out of the jurisdiction of the court.
    This was an application by the complainants in a creditors’ bill, to appoint a receiver of the property of the defendants, who were the judgment debtors. And a cross motion was also made on the part of Durant, one of the defendants, to dissolve the injunction which had been issued restraining him from disposing of his property. The judgment was originally recovered against the defendants and E. C. Jackson, in the supreme court, as joint debtors ; and an execution was thereupon duly issued to the sheriff of the county where these defendants resided, and was returned unsatisfied. Subsequently Jackson, the other defendant in the judgment, applied to the supreme court and obtained an order that all proceedings on the part of the plaintiffs on that judgment, as against him, should be stayed, so that he could be permitted to have a trial and make his defence, in the same manner as though no verdict had been taken and no judgment perfected; but that such order should In no manner stay the plaintiffs from taking any proceedings against the other defendants for the purpose of collecting the judgment perfected in the cause. The complainants thereupon, without proceeding with their suit at law to ascertain whether Jackson was chargeable with the debt jointly with these defendants, filed their bill in this cause to obtain satisfaction of the debt out of their property. And as all these facts appeared upon the face of the bill, the defendants insisted that this suit was improperly commenced; or at least that Jackson should have been made a party for the purpose of contribution.
    March 19.
    J. V. L. Pruyn, for the complainants.

      I. Williams, for the defendant Durant.

      A. J. Colvin, for the defendant Meach.
   The Chancellor.

Upon the hearing of these motions I was under the impression that this case came within the principle that, upon a joint judgment against several defendants, some of whom had not been served with process, all must made defendants, in a creditors’ bill, to enable those whose property was taken to satisfy the debt under the decree of the court to claim contribution against their co-defendants who are jointly liable. In such cases, unless there is an averment in the bill that those who have not been served with process so as to make the judgment at law absolutely binding upon them personally, are mere sureties for the others, or are not legally or equitably liable to contribute towards satisfying the debt, or are destitute of property or out of the jurisdiction of the court, so that the defendants have no interest in having them made parties for the purposes of contribution, the complainant must bring them all before the court, or his bill may be demurred to on that ground.

On examining this case more attentively, however, I am satisfied that it does not come within that principle ; as the form of the order of the supreme court is such that no proceedings whatever against Jackson, founded upon that judgment, can be sustained. And if he was made a party defendant in this suit he might demur to the bill, on the ground that it was a proceeding against him upon the judgment which in effect had been vacated as to him. Upon the case, as it now stands before me, I must presume that Jackson satisfied the supreme court that he had some defence which was personal as to himself; or that he never was jointly liable with the other defendants, but that the complainants had been deceived by the other defendants as to his joint liability ; or that there was some other equitable grounds for retaining the verdict as against them, notwithstanding it was set aside as to him. For the purposes of this suit, therefore, it must be considered as a judgment against the present defendants only, upon a joint claim against all which has not been sustained as to Jackson.

What would be the effect, upon the rights of these parties, of an answer supported by the proofs, showing that Jackson was both legally and equitably liable to the complainants, as a joint debtor with these defendants, and that as between him and them he was bound to contribute towards satisfying this debt, it is not necessary for me now to consider. For although Durant swears that from the claim, as exhibited in the supreme court, the demand was joint, neither of the defendants ventures to allege under oath that the complainants had in fact a joint claim against all, and that Jackson is equitably bound to contribute towards the satisfaction of that claim; or that they believe the complainants could succeed in obtaining a verdict against him.

For these reasons I think a demurrer to the bill would not lie, either for the want of parties, or upon the ground that the complainants have not obtained a verdict and taken out an execution against Jackson in the county where he resides. The motion of Durant to dissolve the injunction must therefore be denied with costs. And the application for a receiver is granted, as asked for by the complainants in their notice.


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    Miller vs. McCan.
    Where S. and M. gave a joint and several note for $200, to C., which note was given for the debt of S., and M. signed it merely as his surety, which fast was known to C. when he received the note, and when the note became due C. made an agreement with S. the principal debtor, for the considera, tion of $25, to extend the payment of the note for one year, which agreement was made without the knowledge or consent of M., and S. before the expiration of the year became insolvent; and C. subsequently brought a suit at law on the note against S. and M. jointly, and the fact of the extension of the payment was known only to S. and C., upon a bill filed by M. against C. stating these facts, and the same being established by the proofs in the cause ; Held, that S. was not a necessary party to the suit; and that M. was entitled to a decree for a perpetual injunction against the collection of the note from him personally, but without prejudice to the right of C. to proceed to judgment in the suit at law, and to enforce the collection of the judgment against S.; also Held, that S. was a competent witness for M. in the suit against C. in the court of chancery.
    Where the court of chancery has properly obtained jurisdiction of a suit, for the purpose of a discovery of facts which could not be proved in the suit at law, it may retain the cause and give the necessary relief, although the facts constituting the defence at law are admitted by the defendant’s answer, which answer might be read as evidence in the suit at law.
    The proper course, where there is a want of necessary parties, is to order the cause to stand over, to enable the complainant to bring the necessary par. ties before the court; or to dismiss the bill without prejudice, so that his right to bring a new suit, making all proper persons parties thereto, will not be barred by the decree.
    An agreement between a creditor and his principal debtor to extend the time of payment of the debt, without the knowledge or consent of the surety, is a discharge of the surety; although the surety has sustained no damage by such extension.
    April 2.
    This was an appeal from a final decree of the vice chanlor of the seventh circuit dismissing the complainant’s bill with costs. It was alleged in the bill that in March, 1834, the complainant and A. V. Suydam gave to the defendant a joint and several promissory note, for $200, payable on the second day of May thereafter; that the note was given for a debt due to the defendant from Suydam only, and was signed by the complainant merely as his surety, which facts the defendant well knew at the time he received the note. The complainant further alleged, in his bill, that when the note became due and payable McCan the payee made an agreement with Suydam, the principal debtor, to wait upon him one year longer for the payment of the note, for and in consideration of a premium of $25 which the latter then paid him pursuant to such agreement; which extension of the time of payment was made without the knowledge or consent of the complainant. And that at the expiration of the year the defendant made another agreement to extend the time of payment for a short period, in consideration of a small sum of money and a valice which he then received from Suydam as a consideration for such further extension of payment; pursuant to which said agreements the defendant continued to wait upon Suydam until the latter had failed in business and become insolvent. The complainant also alleged that since the failure of Suydam the defendant had brought a suit at law on the note against him and Suydam jointly. And that the fact of such agreements for the extension of the time of payment was known only to McCan, the payee of the note, and to Suydam the complainant’s co-defendant in the suit at law, by reason whereof the complainant would be unable to prove the same in the suit at law. Which extension of the time of payment the complainant insisted was a valid and complete discharge of his liability, as surety in the note and as one of the makers thereof. The bill waived an answer on oath; and the complainant prayed a perpetual injunction to restrain the proceeding in the suit at law against him, or for such other or further relief as the nature of his case should require.
    The defendant put in an answer, without oath, denying the equity of the bill; and insisting among other things, that Suydam was a necessary party to the suit, and that if the facts stated in the bill amounted to any defence to the note they constituted a perfect defence at law. Suydam was examined as a witness for the complainant, though objected to as interested in the event of this suit, and he fully proved all the facts alleged in the bill; which was the only evidence in the cause given by either party. Upon the hearing of the cause on pleadings and proofs, the vice chancellor decided that the complainant should have either made Suydam a party, or should have made his defence in the suit at law. And an absolute and general decree was thereupon entered dismissing the bill with costs; founded upon the following opinion of the vice chancellor.
    Mosely, V. C. McCan commenced a suit at law upon a note signed by one Suydam as principal, and the complainant Miller as surety. Complainant alleges that defendant so managed with Suydam, his principal debtor, as that he as surety was legally discharged, but having no witnesses to prove his defence, he filed this bill against defendant alone to have him admit the facts and thus discover the defence, waiving, however, the defendant’s oath to his answer; and his bill also prays for general relief in the premises. McCan denied all the facts alleged as a ground of defence. The complainant then improved Suydam as a witness, who testified to the principal facts as set forth in the bill. The defendant insists, in his answer, that the plaintift’’s remedy is at law, and that the bill in respect to its relief ought to be dismissed; and further, that Suydam is also a necessary party to this suit, without whom effectual relief cannot be granted to both parties. It appears to me that the objection to the complainant’s pursuing his relief in this court is well founded. When the facts in the case warrant a transfer of the subject matter from a court of law, properly cognizable there, to this court, on the ground of its concurrent jurisdiction, the case should be such as permits an entire transfer; so that this court may end the controversy, by awarding the justice of the case to the party entitled to it, furnishing him with the means of reaching it. The complainant, however, aware that all the parties are not before the court, which should be for that purpose, asks only for a decree restraining the defendant from going on under the judgment now obtained in the court of law against himself; but permitting him to issue execution against the separate property of Suydam. This is evidently nothing more than asking the court of chancery to take the paternal care of one of the parties defendant in a suit at law, and committing the other to the judges of the law court; in other words, to have half of the subject matter in the court of chancery, and the other half in the law court. This would be altogether an unsual proceeding. It is evident that without the presence of the other party, Suydam, in this court, no decree can pass against him for the payment of the sum due to McCan. And though it may appear difficult to provide him a suitable station in the suit, it does not follow that the suit may proceed properly without him. If there is a difficulty attending it, it is apparent that it originates in claiming to have the relief granted here. True there may have been found a difficulty insuperable in the alternative, if the bill had been filed asking for a discovery only, so as when" furnished with the evidence to use it at the trial before the jury. The answer would have denied the bill in toto, and the evidence of Suydam of course not obtained, the complainant would have failed ; but this arises from the intrinsic difficulty of the whole case. It shows that the bill was filed not in truth for the purpose of obtaining a discovery, but so to place Suydam that he might be a witness ; and from hence it follows, that either the relief should not have been sought here, or that Suydam should have been made a party, and was an incompetent witness. The long settled practice of entertaining bills of discovery in courts of equity jurisdiction, to enable a party to obtain from his antagonist evidence in his favour, by searching the conscience of such party, and to be used in another’s favour, is misimproved, when used for the purpose of merely so changing the situation of parties in regard to the record, as to make him a competent witness who would not otherwise be one. Such are not the objects which a court of equity keeps in view in the exercise of its paramout jurisdiction. It would indeed be ingenious to make the testimony of Suydam taken under this record the foundation of a decree in favour of the complainant against McCan, the plaintiff in the suit in the other court. But it is anomolous for a court of chancery to say to a court of law, entertaining proceedings against two defendants, your officer shall only execute its process as to one of them; that that court may take care of one of the parties in a suit, and the court of chancery will take care of the ether. This would be an incongruous proceeding. I must conclude, therefore, that the bill must be dismissed if not for the want of proper parties, because the relief ought to have been sought elsewhere. And though it might be quite apparent that the complainant will be remediless, such cases must remain so until the legislature make provision for improving parties to the record as witnesses for and against each other more extensively than it has yet done. The bill is dismissed with costs.

      W. T. Worden and M. T. Reynolds, for complainant.
    The facts stated in the bill, and proved by the witness Suydam, constitute a perfect defence on behalf of Miller to the note in question. (Huffman v. Hulbut, 13 Wend. 375, and the cases there cited. Sutherland, J.) Miller being unable to prove the facts at law, has a right to come into this court for relief. (Legget v. Postley, 2 Paige’s Rep. 599.) This court has jurisdiction of this case also, upon the ground of fraud. The agreement made between Suydam and McCan, was a fraud upon Miller, the surety. (Mortlock v. Butler, 10 Ves. 306, 7. Lord Hardwick’s letter to Lord Kaimes, 1 vol. Life of Lord Kaimes, 237. Lower v. Hooper, 3 Atk. 378. Webb v. Roke, 2 Sch. & Lefr. 566. 1 Madd. Ch.

      Prac. 254, 5, 6.) Equity is “ the correction of that wherein the law, by reason of its universality, is deficient.” (1 Black 61, 62.) Miller cannot obtain relief in the suit at law, as he cannot in that suit swear Suydam as a witness; Suydam being a party to the record. Suydam was not a necessary party to this suit. He has no interest in the event of it. (7 Ves, 287.) Suydam is a competent witness in this suit for Miller. (8 Cowen’s Rep. 102. See also 5 Cowen, 153. 1 Wendell, 119. Lovett <$• Bowne v. Adam,t 3 Wendell, 380.) A party to a note is a competent witness to impeach it, or show it void, &c. (Stafford v. Rice, 5 Cowen’s Rep. 23. 5 Id. 153. 17 John. Rep. 176.)

      H. Millerd & I. Williams, for defendants.
    Suydam is a necessary party in this suit, as no decree can be made without directly affecting his interests. (3 John. Ch. 311. 2 Paige, 18. Id. 279.) The subject matter of this suit being a joint note executed by two persons, both must be parties. (Campbell & Carpenter v. Western, 3 Paige, 124. Bailey v. Inglee and others, 2 Paige, 278. 1 Hoff. Ch. Pr. 497, n. East India Co. v. Boddam, 9 Ves. 467. Poor v. Clark, 2 Atk 515. Brackenridge v. Bullitt, 3 Litt. R. 5.) Suydam is an incompetent witness for the complainant, because he is a joint party to the record in the suit at law, the subject matter of which it is sought to transfer to this court. . (3 Esp. R. 25. Stark. pt. 4, 766, 1061, 3, 4. Bul. N. P. 285. 1 Phil. Ev. 61, 2. 14 John. 119. Arch. Crim. Pl. 442. 2 Campb. 333, and note. Peake’s Ev. 154 to 163. Gilb. Law of Evidence, 134.) He is equally interested with the complainant in obtaining the decree prayed for, that that suit be perpetually enjoined. And if he stand towards Miller in the relation of a principal to a surety, he would for that reason be an incompetent witness for Miller. (4 Taunt. 466. 1 Ph. Ev. 49, 50. 11 John. 57. 7 Cranch, 206. 12 Wendell, 406, 596. 4 Day, 108. 8 John. 487. 3 Stark, pt. 4, 1390. 14 East, 565.) An objection to the competency of a witness may be made at the hearing. (3 Paige, 42.) But prima facie, on the note, they both appear as joint makers and beneficial parties therein; and standing in that relation, a joint contractor or maker not sued is an incompetent witness for his co-obligor or co-maker; (Arch. Crim. Pl. 437; Peake’s Ev. 147 n.; 2 Root, 495 ; 2 Dunl. Pr. 639 ; 5 Bur. 2727:) and a fortiori would be incompetent, if jointly sued, as here. The objection to Suydam as a witness cannot be removed by his own evidence ; it must be done by proof drawn from some other source. (Peake’s Ev. 190, note. Hayw. 290. Peake, 192, 3, 4, 5, 6. Stark, pt. 4, 755, n. 2. 1 Cox’s Rep. 46.) The complainant has a perfect remedy at law. (Sailly v. Elmore, 2 Paige, 499. King v. Baldwin & Fowler, 2 John. Ch. R. 554.)
   The Chancellor.

A general decree dismissing the bill was erroneous, even if Suydam was a necessary party; for such a decree is an absolute bar to another suit in which all the proper parties are brought before the court. The proper course, where there is a want of necessary parties, is either to order the cause to stand over, to enable the complainant to bring the necessary parties before the court; or the bill should be dismissed without prejudice, so that his right to bring a new suit, making all proper persons parties thereto, will not be barred by the decree. (Van Epps v. Van Deusen, 4 Paige’s Rep. 64. Thompson v. Clay and others, 3 Monro’s Rep. 362.) In the present case, however, I do not see any benefit either party could have from making Suydam a defendant in the suit. The complainant does not state a case entitling himself to any decree against him. He only seeks to restrain the plaintiff in the suit at law from enforcing the payment of the note against himself as surety of Suydam. If he does not prove the allegations in the bill, to entitle him to that relief, his bill must be dismissed of course; and he would not in that case be entitled to any decree in this suit against Suydam. On the contrary, if he succeeds in obtaining a decree discharging him from his liability as surety, he cannot, in that event, claim any decree against Suydam, even if Suydam is made a party.

If the equitable defence to the note which is set up here, was a defence in which the principal and surety were both interested, as in the case of Bailey v. Inglee, (2 Paige’s Rep. 278,) this defendant might properly insist that Suydam should be made a party, for his benefit; so that he. might not be obliged to litigate the same question over' again with Suydam, the principal debtor in this court, after he should have succeeded in defeating the suit of the present complainant. But as this was a question in which Suydam stood perfectly indifferent between the parties, he being liable any event to pay the judgment and costs which might recovered in the suit on the note, it was wholly immaterial to the holder of the note whether Suydam was or was made a co-defendant with him in this suit. And whether he was or was not a defendant here, the right of the complainant to examine him as a witness in this suit, against McCan, the present defendant, would be the same. For a defendant in this court is not interested in favor of the complainant, or if his interest in the question in controversy is equally balanced, the fact that he is a party to the suit no objection to his being examined as a witness against co-defendant. The extent of the decree to which the complainant is entitled is a perpetual injunction against the collection of this note of the surety personally; but without prejudice to the deféndant’s right to continue the suit at law, and to enfdrce the collection of the judgment, which may be recovered therein, against the property of the principal debtor. And if the preliminary injunction was granted in such a form as to prevent McCan from proceeding to judgment against Miller and Suydam jointly, and from taking out an execution against them to be levied on the property of Suydam only, it was not warranted by the case made by the complainant’s bill. That, however, would not justify the court in dismissing the bill for want of parties, at the hearing upon pleadings and proofs, instead of making such a decree in favor of the complainant as his bill and proof warranted. I am satisfied, therefore, that there was no reason for dismissing this bill altogether, on the ground that the-principal debtor, who was unquestionably liable, in equity as well as at law, for the payment of the debt, was not made a party to the suit.

It is said by the counsel for the appellant, that an application had been made to the vice-chancellor to suppress the deposition of Suydam on the ground of interest, and that such application was refused; and that the decision thereon was not appealed from. If such was the fact, it explains why nothing is said in the opinion of the vice-chancellor, on the final hearing, as to the interest of the witness. I am satisfied, however, if it were necessary to decide that question at this time, that he was a perfectly competent witness, even without a release; as his interest between the parties was equally balanced. If the complainant succeeded in this suit, the witness was left to pay the debt and costs upon the note, to McCan alone. On the contrary, if the complainant failed in this suit and the money was collected of him, on the execution at law, the principal debtor would be obliged to refund the same sum to him as his surety; but would not be liable for the costs in this court.

The question then arises, whether upon the facts averred and proved, the complainant was entitled to relief in this court; for it is evident he had no defence which it was possible for him to have made at law without the aid of this court. It is distinctly averred in the bill, and proved by the witness, that the fact of the making of the agreements with the principal debtor, to extend the time of payment, was known only to McCan and Suydam, who were the parties to the same. As the former was the plaintiff, and the latter a defendant in the suit at law, neither of them could be examined in that suit as a witness, in favor of the surety, to sustain his defence there; and without such testimony it was impossible to prevent a recovery against the surety as well as the principal debtor. Since the decision of the court for the correction of errors, in the case of Rathbone v. Warren, (10 John. Rep. 597,) it can no longer be questioned that such an agreement as took place here, between the creditor and his principal debtor, without the knowledge and consent of the surety, is a discharge of the surety; even if there is no proof that he has sustained damage by the extension of the credit to the principal debtor. Here, however, it is averred and proved, that the principal failed and became insolvent during the time of the extension agreed on. It is therefore a case of much stronger equity in favor of this complainant than the ordinary cases in which it has been held that the surety was discharged by such an agreement with the principal debtor. If the facts averred and proved in this case had been admitted by the defendant, in his answer to a bill for discovery and relief, there could not be any doubt as to the right of this court to go on and make the proper decree for relief here, instead of sending the party back to make his defence in the suit at law ; even if it were not too late after a judgment had been recovered against him in that suit. For where this court has properly obtained jurisdiction of a cause, for the purpose of a discovery of facts which could not be proved in the suit at law, it may retain the cause in this court, and give the necessary relief here; although, the facts are admitted by the defendant’s answer, so that his answer might be read as evidence in the suit at law. In this case, however, the complainant can obtain no relief whatever in the suit at law, as the only witness by whom the facts could be sustained cannot be examined in that suit; neither can his testimony taken in this cause be used as evidence there. One of the earliest grounds of jurisdiction of the court of chancery was to relieve parties against the injustice which was occasionally produced by the strict application of some of the technical rules of the common law. And the jurisdiction of this court to compel a discovery, in aid of a prosecution or defence at law, is founded upon the fact that, by the strict rules of the common law, a party to the record in the suit at law cannot be compelled by his adversary to prove facts which rest in his own knowledge only, and without which proof palpable injustice would be done to such adversary. Upon the same principle this court, in the recent case of Norton v. Woods, (5 Paige’s Rep. 249,) sustained a bill for relief, on the ground that it appeared from the bill that a valid defence existed to the suit at law, but of which the defendant could not avail himself there, because the only witness who knew the facts upon which that defence rested, and who was not interested in the matter in controversy, had been made a party to the suit; so that he was technieally excluded from being a witness, in that suit, by the strict rules of the common law. I do not see how that case can be distinguished in principle from the present. Although the witness in that case was made a plaintiff in the suit at law, instead of being a defendant, yet, in neither case had the witness any interest in the question actually in controversy between the other parties so as to prevent his being a witness for either party here.

For these reasons, I think the complainant made out a case for equitable relief against the payment of this note. The vice-chancellor, therefore, instead of dismissing the bill, should have enjoined all proceedings against the complainant, upon the judgment which had been perfected since the commencement of this suit; but with liberty to the defendant to take out his execution and enforce the payment of the debt and costs against Suydam, or his property. The decree appealed from must be reversed, and the proper decree be entered; and the respondent must be charged with the costs, including the costs of this appeal.


text:
    Fry, by her next friend, vs. Fry and others.
    Where a husband has obtained a conveyance to himself of his wife’s estate, through the medium of a third person, by taking an undue and unconscientious advantage of her ignorance of her legal and equitable rights, and of her imbecility of mind and of her confidence in his representations, the conveyance will be set aside by the court of chancery, upon a bill filed for that purpose.
    The court of chancery, upon the application of the wife, may restrain the husband from proceeding at law to obtain the possession of a legacy, or a portion in personal estate which came to her by will or inheritance, until he makes a proper provision for her support. But the court will not allow a maintenance to the wife out of property which at law belongs to the husband by virtue of his marital rights, although she has an equity therein, while she is living separate and apart from her husband against his consent and without any justifiable cause.
    This was an appeal from the decision of a vice chancellor denying an application on the part of the defendant Fry, the husband of the complainant, to dissolve the injunction in this cause, upon the bill and answer.
    April 2.

      H. F. Clark, for the complainant.

      B. Haight, for the defendant Fry.
   The Chancellor.

The bill in this case is not properly framed to annul the marriage, even if the averments therein were sufficient to induce the court to believe that the complainant was incompetent to enter into a marriage contract. The fact that although she is now only of the age of twenty-four she has been for several years so corpulent as to weigh nearly three hundred pounds, is a circumstance from which it probably may be inferred that she would not readily have obtained a husband without a corresponding weight of purse. But clearly this is not a case of incurable impotence which could render the marriage void on that ground. Besides ; it appears from the bill itself that the marriage has been consummated. And if the complainant had sufficient mental capacity so swear to this bill, for the purpose of obtaining an injunction on her own oath only, the marriage could not be a nullity on the ground that she was an idiot, or a woman of an imbecile and unsound mind. The allegation that she is of unsound mind, and so imbecile as to be incapable of understanding her rights or of making a valid contract of marriage, without the assistance and advice of others, is also contradicted by the fact, which also appears from the bill, that her father by his will contemplated the event of her marriage, and gave her a legacy of $3000 to be paid in six months thereafter; and by the fact that her mother, only ten months before the marriage, named the complainant as an executrix of her will.

Independent of the defendant’s answer, therefore, it is evident that the complainant has been induced to swear to a degree of physical and mental incapacity which does not in fact exist. And if the answer is true, very unjustifiable means have been resorted to for the purpose of depriving the defendant Fry of his wife, against the wishes if not against the interests of both. This marriage being valid, and the husband having done nothing that could justify a dissolution of the marriage contract, or which could even authorize a separation, he is entitled to the rents and profits of her real estate during their joint lives; whether the conveyance of that estate to him, through the medium of the defendant Luff, is or is not set aside as improperly obtained. And the injunction, so far as it restrains the husband from collecting the rents and profits, to which he is legally entitled by the marriage, should have been dissolved. (Van Duzer v. Van Duzer, 6 Paige’s Rep. 366.) I am not, however, satisfied, even from the defendant’s own statement of the case, that he has not taken an improper advantage of his wife’s ignorance of her rights, and of her confidence in him, to obtain a conveyance from her which, in case of his death, would leave her entirely destitute of a support out of her own property during the residue of her life. The real estate, in case of his death, as it is now situated, would go to his heirs, to her exclusion, except as to her right of dower therein. Her personal estate also, if he is permitted to recover it of the executors, may be disposed of by his will so that no part of it will come to her. Such a state of things certainly could not have been contemplated by her; and perhaps it was not thought of by him when he induced her to join in the conveyance, for the purpose of giving to him the reversion of the property in case of her death without issue. I think,therefore, that the deed should not be permitted to stand to that extent; and that he should not be allowed to recover the whole of her personal estate, from the executors, until a suitable provision is made for her support during life, and for her issue if she should have any.

The power of this court, upon the application of the wife, to restrain the husband from proceeding at law to obtain the possession of a legacy, or a portion in personal estate which comes to her by will or inheritance, until he has made a proper provision for her support, appears now to be placed beyond any reasonable doubt. (2 Kents Com. 139. 2 Story’s Eq. 641, § 1414.) But this court does not encourage a breach of duty on the part of the wife, by affording her a maintenance out of the property which belongs to the husband at law, by virtue of his marital rights, although it came to her by descent or gift from her own relatives, while she continues to reside apart from her husband against his consent, and without any justifiable cause. No provision, therefore, can be made in this case for the present support of the complainant, either out of the personal estate or out of the rents and profits of the real estate, while the husband is willing to receive her under his own roof and to support and treat her as his wife.

The order appealed from, so far as it restrains the appellant from using the personal estate which he has reduced to possession, or from collecting the rents and profits of the real estate, or from selling or incumbering his life interest therein during the continuance of her life, (which interest was absolutely vested in him by the marriage,) must be reversed ; and the injunction is dissolved to that extent. But the injunction, so far as it restrains him from selling or incumbering any interest which he has acquired under the deed of his wife to Luff, and so far also as it restrains him from reducing to his possession any more of the personal estate of his wife-which came to her from her parents or either of them, or restrains the executors from paying the same to him, must be continued until the further order of the court; or until he shall make such a suitable provision for the future support of his wife, and of her issue if she should have any, as the vice chancellor may deem reasonable and think proper to - direct.

Neither party is to have costs as against the other on this appeal; and the proceedings are to be remitted to the vice chancellor.