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    Spencer v. Van Duzen and Jones.
    August 4th
    If the defendant in his answer sets up a distinct matter byway of avoidance, which is not called for by the bill, the same, if irrelevant or immaterial, may be excepted to for impertinence, or the complainant may have the benefit of the objection upon the hearing.
    If the complainant wishes to compel the defendant to state the new matter set up by way of defence with more particularity, he should amend his bill and state the matter by way of pretences, and call upon the defendant to answer as to the particulars.
    This cause was heard on exceptions to a master’s report on exceptions to the answer of Van Duzen for insufficiency. The master reported the answer insufficient in the matter of the 1st, 2d, 10th, 11th and 12th exceptions. The report was excepted to in these particulars; and the exceptions were submitted without argument. The facts sufficiently appear in the opinion of the Chancellor.

      *J. Hoyt, for complainant.

      D. B. Talmadge, for defendant.
   The Chancellor :—The first and second exceptions to the answer were promptly allowed, for the reasons given by the master.

The tenth exception appears to have been improperly allowed. The defendant says, that in a certain conversation between him and the complainant, the latter agreed to receive his note in payment of the loan of $3,000, and instructed his partner to receive the same, and execute a release, which was done accordingly on the 30th of September, 1826. The master has declared the answer insufficient, because the defendant does not state the particular day on which this conversation took place. I cannot see how the time can possibly be material. It is stated to have been between the execution of the mortgage to Jones and the giving of the deed. This is all that appears material as to time. There is nothing in the bill calling for the time or particulars of this conversation. This exception to the answer should have been overruled.

The eleventh and twelfth exceptions ought also to have been disallowed. The part of the answer to which these exceptions are taken is no way responsive to the bill, and was not called for by the complainant. It relates to a distinct claim set up on the part of the defendant by way of set-off. If the defendant sets up a distinct matter by way of avoidance, and which is not called for by the bill, the answer cannot be excepted to for insufficiency. If the fact stated is wholly immaterial, the answer may be excepted to for impertinence, or the complainant will have the benefit of his objection on the hearing. (Clissold v. Powell, 2 Madd. Ch. 355.) If the complainant wishes to have the details of any new matter set up by way of defence, he should amend his bill and state the matter by way of pretences, and call upon the defendant to answer as to the particulars thereof.

The two first exceptions to the master’s report are overruled, and the three last are allowed. The costs to which the parties are entitled will be fairly off set by allowing none to either party on these exceptions, or on the original exceptions *to the answer. The defendant must put in a further answer to the two first exceptions in twenty days, unless the complainant amends his bill within ten days; in which case the defendant is to have forty days after the amendments are served to answer the amendments and exceptions together.


source: Caselaw Access Project

license: Public Domain

text:
    The Merchants’ Insurance Company v. Marvin and others.
    August 4th.
    Where the rights of the several defendants are truly stated in a bill of foreclosure, it is not necessary for them to appear and answer to protect their rights.
    In such a case, where the mortgagor paid the complainant’s debt and costs before any decree in the cause, the complainants were permitted to discontinue without paying the costs of junior incumbrancers who had unnecessarily appeared and answered.
    The bill in this cause was filed to foreclose a mortgage given to the complainants. The mortgagor and some junior incumbrances were made defendants. Some of the junior incumbrancers appeared and answered; but before any decree was made in this cause, the mortgagor paid to the complainants the amount due them and costs. The junior incumbrancers who have answered how claim the right to have the suit continued to enable them to obtain their costs.

      L. Hoyt for the complainants.

      Wells & Bushnell for the junior incumbrancers.
   The Chancellor :—If the junior incumbrancers had been subjected to any costs which were necessary to protect their rights, it would be proper that they should be paid before the suit was discontinued. From the facts stated in the case, I cannot see that it was necessary for them to put in any answer. They do not deny that their claims were truly stated in the bill. If so, suffering it to be taken as confessed would not have injured them, but would have saved expense to all parties. The bill must, therefore, be dismissed without prejudice to the future claims of the parties, and without costs.


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    *Purdy v. Doyle and others.
    Where land is sold under a decree of foreclosure and the surplus is brought into the court, judgment creditors who had obtained a specific lien thereon at law before the foreclosure are entitled to a priority of payment out of the proceeds according to the dates of their respective judgments.

    But if the person against whom their judgments were obtained had only an equitable estate in the mortgaged premises, so that the judgments could not bind his interest at law, the creditors here are to be paid upon the basis of equality only.
    The rule of this court as to equitable assets is to put all the creditors on an equal footing.
    Where assets are partly legal and partly equitable, this court cannot take away the legal preference as to the legal assets; but if one creditor has by reason of his priority been partially paid out of the legal assets, when satisfaction comes to be made out of the equitable assets, his claim thereon will be deferred until the other creditors have been paid a proportionate amount out of the equitable assets.
    August 4th.
    A bill filed in this court against heirs or devisees, has the same effect as the commencement of a suit at law in preventing the alienation of the estate. But if a judgment at law is obtained before the decree in this court, the plaintiff in such judgment thereby obtains a prior lien on the legal estate in the hands of the heirs or devisees.
    Where a suit is commenced against five heirs for the debt of their ancestor, and the writ is only served upon three, but the plaintiff proceeds and takes judgment against all as joint debtors, he obtains a lien only upon the estate of those upon whom the process was served.
    Where a creditor has obtained a lien upon a real estate by a judgment at law, if he subsequently brings an action of debt on his judgment, and recovers a new judgment, he will lose his first lien.
    This was a creditor’s bill, against the heirs and personal representatives of Dennis Doyle deceased, and was filed in April, 1827; and an injunction obtained restraining the defendants from disposing of or intermeddling with the estate of the intestate, or the proceeds thereof. After the service of this injunction, O’Connor, one of the administrators, who held a note against the intestate, brought a suit thereon against the infant heirs of Doyle, in the New York Common Pleas. The writ was served upon three out of the five heirs. John Doe, a fictitious person, was appointed the guardian ad litem of these three. And judgment was entered *against all the defendants, in like manner as upon a proceeding against joint debtors under the statute. This judgment was for $471 80, and was docketed on the 3d of July, 1827. Dennis McCarty, another of the administrators, also brought a suit, in his own name, against the heirs, and obtained a judgment in the same way for $122 31; which was docketed on the 18th of September, 1827. Patrick Barry, a creditor, also brought a suit and obtained a judgment in the same way for $599 59, which was docketed the 21st of September, 1827. John McDonough also brought a similar suit and obtained judgment in the same court for $130 69. He then brought an action of debt on that judgment in the Supreme Court, and recovered a new judgment thereon, which was docketed in May, 1828. The testator at his death was the equitable owner of a tract of land at Bloomingdale, subject to a mortgage to the Eagle Eire Company. That mortgage has since been foreclosed, and the surplus proceeds of the sale of the premises, amounting to $2,202 85, have been paid into court, where they now remain. The complainant presented his petition, setting forth, among other things, that the judgments were not all justly due, and praying that the surplus moneys might be invested to abide the further order of the court, and that the same should not be paid out to the judgment creditors.

      H. Bleecker for the petitioner.

      J. McKown for the administrator.

      D. Selden for P. Barry.

      J. Rhoades for J. McDonough.

       See Lemmon v. Heirs of Staats, 1 Cow. 592.

   The Chancellor :—The first question presented in this case is whether the fund in court is either legal or equitable assets. If it is such property as the judgment creditors could obtain a specific or general lien on at law, they are entitled to the fruits of their superior vigilance so far as they have succeeded in getting such lien. But if the property was in such a situation that it could not be reached by a judgment at law, and the fund is raised by a decree of this court, and *the creditors are obliged to come here to avail themselves of it, they will be paid upon the footing of equality only. (Codwise v. Gelston, 10 John. Rep. 507.) It clearly appears by the affidavits before me in this case that, as to one-half of the property out of which the fund in court was raised, the legal title never was in the ancestor, and of course it did not at law descend to the heirs. The first section of the act for the relief of creditors against heirs and devisees gives an action against the heirs of a debtor who dies seized of lands, &c. At law a contract to purchase and payment of the purchase-money does not give the purchaser a legal seizin of the land. In this court it is otherwise; and on the equity of that statute this court would give to the creditors satisfaction out of the equitable interest in the land descended to the heirs. But when the creditors come here for the purpose of reaching the equitable rights of the heirs, they must submit to the equitable rule of this court. In Morrice v. The Bank of England, (Cases Temp. Talb. 218,) that rule is stated thus: “ The rule of this court with regard to equitable assets is to put all the creditors-on an equal footing; so where the assets are partly legal and partly equitable; and though equity cannot take away the legal preference on legal assets, yet if one creditor has been partly paid out of such legal assets, when satisfaction comes to be made out of the equitable assets, the court will defer him until there is an equality in satisfaction to all the other creditors, out of the equitable assets, proportionable to so much as the legal creditor has been satisfied out of the legal assets. The complainant filed his bill in this court, in behalf of himself and of all other creditors, to reach this equitable property in the hands of the heirs. This was equal to the commencement of a suit at law to prevent the alienation of the assets. (Searle v. Lane, 2 Vern. 88.) But if the legal title was in the heirs, the subsequent suits at law, in which judgments were obtained before any decree here, would give the judgment creditors a preference over any other creditors whose debts were of equal degree ; and the heirs would not be obliged to defend those suits. (Mactier v. Lawrence, 7 John. Ch. Rep. 206; Martin v. Martin, 1 Ves. sen. 211.) As to the remaining half of the land sold *under the mortgage, it is stated in some of the affidavits that the deed was signed and acknowledged in the lifetime of the testator; but it does not distinctly appear whether it was actually delivered to him, so as to pass the fee, or was retained in the hands of the grantor until it should be executed by Heeney, the owner of the other half. If the intestate was actually seized of this half at the time of his death, the judgments recovered against the infant heirs would give the plaintiffs therein respectively a legal preference as to the three-fifths of the surplus arising from that half over any other creditors of equal degree. But those judgments cannot affect the other two-fifths which belonged to the heirs who were not taken in the suit. As to them the judgments were no lien on their share of the land. This was so decided by the Supreme Court, in Jackson v. Hoag, (6 John. Rep. 59,) where a sale under such a judgment was held not to affect the rights of the heirs who had not been served with process. There is another difficulty in this case which has not been explained by the administrators who are the owners of two of the judgments. It is stated in the petition that on a sale of other real estate which belonged to these infants there was a surplus of $2,200, "which has been paid to the administrators. If such is the fact, they ought to account for that sum and have it applied to the payment of their judgments, before they are entitled to come upon the fund in court. If the judgments of Barry and McDonough were prior to those of the administrators, an order might be made for the payment of so much of the fond as they have a specific lien upon towards their debts. But Barry’s judgment is subsequent to both of those belonging to the administrators; and McDonough, by prosecuting a subsequent suit to judgment in the Supreme Court, has lost his first lien, and must now be postponed even to Barry, whose judgment is now the eldest.

Under these circumstances the fund in court must be invested by the assistant register, and remain until all the entangled equities between the parties are finally disposed of under a general reference in this suit; and the question of costs on this application is reserved until further order.

        Wilder v. Keeler, 3 Paige, 176; Slade v. Van Vechten, 11 id. 21.

       2 R. S. (4th ed.) 606, sec. 4.


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    *Champlin v. Baldwin and others.
    August 4th.
    Under the statute of distributions, brothers and sisters of the half blood are entitled equally with those of the whole blood to a share in the personal estate of the intestate, without regard to the ancestor from whom it was derived.
    And if such personal property had been invested in land by the intestate, the land would have descended in the same manner
    John Hathorn died in 1824, leaving five children: Jane the complainant, and Mrs. Grustin by his first wife, and Mary Fergus Anthony and Robert Bruce, by his second wife, who is now Mrs. Baldwin. After the death of his first wife he purchased six lots in the city of New York, and took a deed therefor in his own name. Five of these lots were purchased for his two infant daughters, and were paid for with moneys which belonged to their mother, and which came from the estate of her father. Mrs. Grustin died in 1827, intestate and without issue. The complainant filed her bill in this cause for partition; and a reference was made to a master to ascertain the rights of the several parties in the premises, and particularly of the three children of Hathorn by his second wife; they being infants, and having put in an answer by their guardian. The master reported, that in his opinion the complainant was entitled to the whole of the five lots and to one-fourth of the sixth lot, subject to the dower right of Mrs. Baldwin in that lot. The cause was submitted on the pleadings and report, and the testimony taken before the master.

      P. De Witt for the complainant.

      P. W. Radcliffe for the defendants.
   The Chancellor :—There can be but little dispute as to the facts in this case; but the master has mistaken the law as to the rights of the infants in the five lots. He has considered them as having come to the complainant and Mrs. Gustin, from their mother, and has therefore excluded the *brothers and sisters of the half blood of Mrs. Gustin from the whole of her share. It does not distinctly appear whether the money which came from the estate of Brooks, legally belonged to the children of the first wife; or whether it belonged to their father and was appropriated for their benefit because it came by the way of their mother. But for the decision of this question I shall consider it as legally belonging to them, which is certainly the most favorable view of the case for the complainant. In that case if Mrs. Gustin had died after her father, this money, by the statute of distributions, would have gone to all her brothers and sisters equally, without regard to the source from which it was derived. If she had purchased lands with it, those lands would have descended in the same manner; and the result must be the same when the money is vested in lands, by her father, for her use. In the fourth case specified in the statute of descents, (1 Rev. Laws, 53,) it is provided that brothers and sisters of the half blood shall inherit equally with those of the whole blood. The only exception to this rule is where the inheritance came to the intestate by descent, devise or gift of some one of his or her ancestors. The land in this case did not come to Mrs. Gustin by descent, devise or gift from her mother. If the money came from her mother by gift, the donee had the right to lay it out as she pleased; and if she vested it in land it must descend in the same manner as if the money had been earned by her own exertions. It is to be considered in all respects as a new purchase by her.

There must be a decree declaring the rights of the parties accordingly; and as the property cannot be divided, it must be sold; and if Mrs. Baldwin has paid any thing out of her own funds for taxes and assessments, it must be refunded out of the purchase-money. I see no reason for taking an account of what was paid by Hathorn in his lifetime. If his heirs generally are entitled to one lot, and his two eldest daughters’ portion of the money was $804, as stated in the account, it is nearly right as it now is; and the expense of taking the account would be greater than any benefit which either of the parties would obtain thereby.

*The costs of the respective parties must be paid out of the fund; and the share of the infants must be brought into court, and invested for their use.

       See 2 R. S. (4th ed.) 159, sec. 15.


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    Webb and others v. Pell and others.
    August 4th.
    It is not necessary to obtain leave to file a bill of review, where it is brought to correct errors apparent on the face of the record.

      Alitor, where it is brought upon the discovery of a new matter.
    Where a subpoena was taken out upon a bill of review, and a bona fide attempt made to serve it within five years from the entry of the original decree, it was held to be a sufficient commencement of the suit, although the subpoena was not in fact served within the time allowed by law for appealing from the decree.
    On filing a bill of review, a deposit must be made with the register of the same amount which is required on an appeal
    Where the solicitor for the complainant acted under a mistake as to the practice, he was allowed after the commencement of the suit to make the deposit nunc pro tune.

    The object of this bill was to review a decree of this court for errors alleged to be apparent on the face of the record. It was filed without leave of the court, and without making any deposit. Within the time allowed by law for appealing from a decree, a subpoena was taken out, and a bona fide attempt made to serve it. But it was not in fact served until after the expiration of the five years. A motion was now made on the part of the defendant to dismiss the bill for irregularity.

      J. Radcliff for complainants.

      D. B. Talmadge for defendants.
   The Chancellor :—The affidavit of the complainants’ solicitor shows that a subpoena was taken out with a bona fide intent to serve the same within the five years. This is sufficient to remove all objection as to the time in which this suit was brought. It was not necessary to obtain any leave to file the bill of review. That is only necessary where it is brought upon the discovery of new matter. (Newland, 190; Mitford, 78.) But the complainants were irregular in not *making a deposit to answer the costs. By the practice of the English Court of Chancery, a deposit of £50 was required on filifig a bill of review, whether the same was founded upon the discovery of new matters, or upon error in law, apparent on the face of record. (Hind, 58; Gilb. For. Rom. 186; 1 Grant’s Pr. 28.) In analogy to the deposit required on appeals, there must be a deposit here on a bill of review of $100. But as the complainants’ counsel has acted under a mistake as to the practice, the deposit may now be made on payment of the costs of this application. The bill must be dismissed with costs, unless the deposit is made and these costs paid within twenty days.

       The Revised Statutes having increased the deposit required on appeals to $250 after the first of January, 1830, it is presumed the deposit on a hill of review upon a decree of the Chancellor will be increased to the same amount after that time.

       See sec. 334, N. Y. Code.


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    Kirby v. Kirby.
    August 4th.
    A wife may compromise a suit brought against her husband for a divorce. and the court will only interfere so far as to see that she is not overreached or imposed upon in the settlement. $
    The solicitor for the wife cannot insist upon proceeding with the suit against her consent, upon the ground that his costs are not paid.
    The complainants filed a bill in this suit for a divorce upon the ground of adultery, and obtained an injunction, a ne exeat, and the appointment of a receiver; and also an order for a monthly allowance pending the litigation. (Ante, 261.) The husband was unable to procure bail on the ne exeat; and the wife, without the consent of her solicitor, compromised the suit, on receiving security from the husband for a monthly allowance for her support. She directed the suit to be discontinued, and gave a written order to the sheriff to discharge her husband from prison. Her solicitor, previous to the discharge of the defendant, notified the sheriff not to release him from jail until his costs were paid. The sheriff having discharged the defendant,
    *E. Payne, the solicitor,
    presented a petition, setting forth the facts, and prayed for an attachment against the sheriff. He contended that the complainant was not liable for the costs. That in contemplation of law the husband undertook to pay them at the time the bill was filed against him. A case of adultery is a peculiar one as to costs. The solicitor for the wife undertakes to render services for her which are of a character most hostile to the husband; and the payment for which he will in all probability attempt to evade. The statute (2 R. L. 197) has conferred upon this court extraordinary powers, to secure to the wife not only a support out of her husband’s estate, but also the payment of the costs incurred in prosecuting her suit. Thus the solicitor of the wife has the same means of securing the payment of his costs that she has to secure a support. The statute does not leave the solicitor, as in ordinary cases, to obtain his costs without any special assistance from the court, but it authorizes the court summarily to interfere and compel the payment of the costs. The statute authorizes the husband’s property to be sequestered for the wife’s support and the payment of her costs. When a ne exeat is granted it is intended for the joint benefit of the wife and her solicitor, as their rights are placed upon an equal footing by the statute. The solicitor having an equal interest with the wife in maintaining the ne exeat, the wife cannot discharge it without his consent. In ordinary cases a client cannot deprive his attorney of the remedy which the law gives him to obtain his costs from the opposite party. .This was ruled in the case of Martin v. Hawks, (15 John. R. 405.) In that case it was also decided that the sheriff after notice from the attorney of his rights under the execution, was liable for an escape for discharging the defendant from custody upon a release being given by the plaintiff to the defendant. The present case is stronger than the one of Martin v. Hawks, as the adverse party here is alone responsible to the solicitor, and together with the solicitor’s client. A wife who has herself no legal claims upon her husband, cannot release him from the claims of third persons for which he is alone responsible. Here the sheriff had full notice from the solicitor of his rights. After the *compromise between the wife and husband, the consent of the wife to discharge the husband was nothing more than the act of the husband. The remedy of the solicitor is clearly an attachment against the sheriff for contempt of court, committed by releasing the defendant when it was his duty to have kept him in close custody until discharged by order of the court. The sheriff at least should have asked the advice of the court before he discharged the defendant. The solicitor will not be able to collect his costs by suit from the husband. His only remedy is against the sheriff. A simple departing from the state is a violation of the ne exeat, although the violation in the first instance was unintentional, and the plaintiff has not been injured; and the court will direct that the amount of the ne exeat be brought into court, or that the bond of the sureties be prosecuted. (Utten v. Utten, 1 Meriv. 51; Musgrave v. Medex, id. 49.) The sheriff who has violated his duty in disobeying a ne exeat cannot be treated more indulgently than sureties. "Where a sheriff releases a party in custody upon an attachment for non-payment of costs, he will be ordered to pay the money into court. (Anon. 11 Ves. 170.) Upon a ne exeat the sheriff has but one duty: to obey the mandate of the writ; either to keep the defendant in custody or to take security. If he violates this duty he is guilty of a contempt, and is bound to make complete reparation to the injured party. It is not necessary to obtain a decree for costs before proceeding against the sheriff. By the admission of the defendant the wife would have been entitled to a decree. She having compromised with him, cannot, by collusion, deprive her solicitor of his costs. In 1 Dicken’s B. 114, where the parties colluded to dismiss the bill without the solicitor’s knowledge, the Chancellor ordered his costs to be paid out of a fund in court.

      J. Edwards, contra:
    An attorney or solicitor cannot enforce his claim for costs against the adverse party until the amount is settled by judgment or decree. This appears from all the authorities and particularly the case of Martin v. Hawks, (15 John. Rep. 405.) Until the judgment or decree *it cannot appear whether the attorney or solicitor will ever be entitled to costs as against the defendant. This can never appear in this case in consequence of the settlement. The solicitor for the complainant undertook this prosecution, subject to the hazard of the parties settling it, wdthout making provision for his costs. This case is one above all others which the parties ought to be permitted to settle. The wife makes no complaint as to the settlement. It is full and perfect. As to the ne exeat, it never was granted for the benefit of the solicitor, but of the wife alone. In form it is an order to keep the defendant in custody, unless he gives security not to depart the state. This is nothing more than bail in equity, (Ex parte Bunker, 1 Pr. Wms. 312; Lloyd v. Cardy, Prec. Ch. 171; Amsinck v. Barklay, 8 Ves. 594.) The security in form is like a bail bond at law; (Gibert v. Colt, 1 Hop. 496.) The ne exeat does not resemble final process. In Martin v. Hawks, the whole judgment belonged to the attorney, and a fraud was committed upon him. In this case the sheriff would have been liable to an action for false imprisonment if he had kept the defendant in custody after the settlement. If due diligence had been used the receiver might have collected sufficient funds to pay the costs.
   The Chancellor :—I have heretofore decided, in one of these matrimonial cases, that I would not permit the solicitor’s claim for costs to stand in the way of a reconciliation between a husband and his wife. This is not exactly a case of that description; but it is an agreement on her part to discontinue proceedings instituted to dissolve the marriage contract, upon receiving a separate maintenance. In these cases the wife is, by the statute, authorized to proceed as a feme sole. She has therefore a right to compromise the suit in the same manner as any other parly, although the court will always look into the ease, so far as to see that she has not been overreached or imposed upon by her husband, in the settlement. In this case there is no pretence that she has not acted understandingly, and done that which was, probably, most for her own benefit. She applied to her solicitor to discontinue the suit, but he refused to do it unless his costs *were first paid. After consulting with her friends, and in the presence of her sister, and with her approbation, she completed the compromise, and ordered her husband to be released from prison. The sheriff was bound to discharge him, unless the solicitor had some claim which he had a right to enforce, without the consent of the wife. In Martin v. Hawks, (15 John. Rep. 405,) and other cases where the attorney has been permitted to enforce the collection of costs against the adverse party, without the consent of his client, there was a judgment or decree for costs, which gave the attorney a vested right to them. In this case it does not appear that any costs ever would have been given. The order for a monthly allowance was not an order in favor of the solicitor; and it was only directed to be paid by the receiver out of the estate which might come into his hands. The wife therefore had a perfect right to discontinue the suit, and discharge her husband; and it was the duty of the sheriff to release him on production of the order; (Martin v. Francis, 2 Barn. & Ald. 402.

The petition must be dismissed, and as the sheriff has done nothing more than he was legally compelled to do, the petitioner must pay the costs of opposing this application.


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    Harrington and Cannon v. Hughes.
    August 4th.
    Where one-third of a lot of land was devised by a husband to his wife for life in lieu of dower, and after his death his daughter purchased the lot subject to the life estate of her mother, and then died leaving a will duly executed, by which she directed her executors to lease all her real estate, not before devised, and out of the rents to pay her mother, and. several other persons, annuities for life; held, that the mother was entitled to both the annuity and the life estate in one-third of the lot.

      Miterr, if the daughter had directed the annuity to be paid out of the rents of the whole lot.
    Christopher Hughes died seized in fee of lot No. 16 in Rose street, in the city of New York. By his will, made in 1807, he gave to his wife, the defendant, certain personal *property, and one-third of this lot, for life in lieu of dower. The residue of his property he devised to his executors in trust. His daughter Maria H. Williamson purchased the lot from the executors, and took a conveyance of the same subject to the life estate of her mother in one-third of the premises. She built upon the lot, and the mother resided with her daughter thereon until the death of the latter in 1824. M. H. Williamson, by her will, after disposing of parts of her property specifically, directed the complainants her executors, to lease all her real estate not before devised, and out of the rents to pay her mother, and several other persons, specific annuities for life. The defendant after the death of her daughter received the annuity under the will, and also claimed her life estate in the one-third of the lot in Rose street, under the will of Christopher Hughes. The complainants filed this bill to compel the defendant to elect which she would take, the annuity or the life estate; insisting that she was not entitled to both.

      E. Morrell for the complainants:
    The whole of the house and lot is by the will of Maria H. Williamson the daughter devised to the executors, and constitutes a part of the fund out of which the defendant is to receive her annuity. The defendant for four years acquiesced in the provisions of the will and received the annuity, without preferring her claim for dower. It is well settled that a devisee cannot take advantage of one part of a will and reject another, when both parts relate to the same devise. If he will take advantage of the will, he must take entirely and not partially under it. There is always a tacit condition annexed to all devises of this nature, that the devisee shall not disturb the disposition which the devisor has made. (Streatfield v. Streatfield, Ca. T. Talbot, 176, per Ld. Ch. Talbot.) Where there is a claim upon a man’s estate independent of him, and a claim upon the same under his will, the conclusion in equity is, that the devisee must abandon his original title or waive his title by the devise in the will. (Noys v. Mordaunt, 2 Vern. 581.) These principles apply to this case, and establish that the defendant cannot claim both her dower and the annuity. The one or the other must be abandoned by her.

      *W. W. McClelan for the defendant:
    The defendant is not put to her election in this case. The devise in the will of Christopher Hughes is nothing more than her dower. She is entitled to the same rights as if she claimed the devise as her dower at law. A widow is not put to her election, unless it is so expressed in the will. The estate of the defendant in the house and lot in question vested in her long before the death of her daughter. In this estate, the daughter had no interest and claimed no right whatever. It has been ruled where a testator whose estate was in settlement devised the whole in general words, that this was not a sufficient indication of the intention of the testator to dispose of that over which he had not power to do, so as to put the devisee to his election. (Forrester v. Cotten, M. 1760, 1 Eden, 532; Forrester v. Cotten, Ambler, 388.) And where a testator devised an estate to one which he had no right to do, and also gave him a life interest in other estates, it was held that the devisee could claim the first estate under an old entail, and was not put to his election. (Cull v. Shotwell, T. R. 773, 727; Forrester v. Cotton, Ambler, 388; Pulteney v. Darlington, 1 Brown C. R. 223; Hearle v. Greenbank, 3 Atk. 695; Hearle v. Greenbank, 1 Ves. sen. 298; Graves v. Boyl, 1 Atk. 509.) A devisee is only put to his election where it is so expressed in the will, or where unless he elects the devise will be disturbed in toto.

   The Chancellor :—This is not a case where the defendant can be called upon to elect, as she is clearly entitled, both to the annuity and to her life estate in one-third of the lot in Rose street. There is nothing in the will of the daughter inconsistent with this claim. She bought the lot subject to the life estate of her mother; and at the time she made her will, she knew that estate still existed. She does not direct her executors to rent the Rose street lot to raise the annuities; but directs all her real estate not before devised to be rented for that purpose. This includes all her interest in the Rose street lot, and nothing more; and that is only two-thirds of the lot during the life of her mother. If she had directed the annuity to be paid out of the rents of *the whole lot specifically, the case would have been different. (Brown v. Rickets, 3 John. Ch. R. 553.) The complainants’ bill must be dismissed with costs.


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    Chase v. D. R. and A. F. Dunham and others.
    August 4th.
    Under the general rule of the court, allowing the complainant to amend upon an insufficient answer, he cannot amend by leaving out the name of the defendant; and thus discontinue the suit against him without costs.

    The complainant excepted to the answer of D. R. and A. F. Dunham for insufficiency; and the exceptions were sustained. These defendants then put in a further answer, in March, 1829, and in May term thereafter moved to dismiss the bill for want of prosecution. On that application the complainant obtained leave to amend upon payment of costs. He thereupon amended his bill by leaving out the names of these defendants entirely.

      H. W. Warner, for D. R. and A. F. Dunham,
    now moved for costs against the complainant.

      I. W. R. Bromley, contra.

        Russell v. Spear, 5 How. Pr. R. 142.

   The Chancellor;—The leave to amend given to the complainant in May last, was not an amendment under the general rule of the court. He had forfeited that right by neglecting to amend for several months after the further answer was put in. It was, therefore, allowed only on payment of costs. But the amendment itself was not one contemplated by that rule, as to these defendants. The party cannot except the answer of a defendant, and then amend him out of court without costs under that rule. The object of the rule is to allow such amendments as may be necessary to obtain relief against the party whose answer is excepted to; as he can put in his answer to the amendments and exceptions together, without any more expense than if those amendments had been incorporated in the original bill.

The complainant must pay the taxable costs of these defendants within twenty days after service of the taxed bill.


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    *Gardiner v. Derring and Hempstead.
    August 4th.
    A tenant for life has the right to take from the premises reasonable firewood for the use not only of the house which she herself occupies, but also sufficient to supply the house of her servant who cultivates the land, provided it can be done without injury to the inheritance.
    The defendant Mrs. Herring is tenant in dower of 175 acres of land on Shelter Island, upon which there is a dwelling-house which she occupies. There is also a small-house on the premises which she holds under a lease from a former owner of the farm. This house is occupied by the defendant Hempstead, who works the farm for her. She hi aims the right to take reasonable firewood from the premises not only to supply herself but Hempstead also. The complainant filed his bill in this cause, and obtained an injunction restraining the defendants from taking any wood for the use of the small house. On the coming in of the answer, a motion was made to dissolve the injunction.
    W. N. Dyckman, for the complainant.

      D. Lord, jun., for the defendants,
    cited Co. Lit. 416; 2 Black. Com. 35, 123, 4; Shep. Touch. 93, n. 1; Cruise’s Dig. tit. 3, sec. 10, and tit. 8, sec. 1.
   The Chancellor :—The tenant for life is entitled to take reasonable firewood from the farm for the supply of those who occupy it; provided it can be done without injury to the inheritance. It is not absolutely necessary that the wood should be burnt on the premises; provided it is taken in good faith for the use of the tenant, and her servants, and in reasonable quantities. There is nothing in the bill or answer in this case to show that the quantity claimed is unreasonable, or that the inheritance would be injured. If the tenant in dower commits waste, she forfeits her estate. The court will not presume a forfeiture where no acts amounting to waste are alleged or shown.

The injunction must be dissolved.


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    *Leggett v. Dubois and Walton.
    August 6th
    Where a deposit is made upon obtaining an injunction, by way of security for costs, the right to the money cannot be decided until the final hearing of the cause on the merits.
    The defendant is not entitled to the deposit immediately, upon a dissolution of the injunction on bill and answer.
    The complainant in this cause had obtained an injunetian to stay a trial at law on making the usual deposit. On the coming in of the answer the injunction was dissolved.

      J. Rhoades, now on behalf of the defendants,
    upon an affidavit stating that they had obtained a verdict in the suit at law brought against the complainant, moved to have their costs of preparing for trial at the former circuit paid out of the money in court.
   The Chancellor :—The right to deposits of this description cannot be ascertained in this stage of the suit. Although the injunction is dissolved on the coming in of the answer, it may be revived and made perpetual on the final hearing, upon the pleadings and proofs. If it should turn out by the final decree in this cause that the suit at law was unconscientious or inequitable, the defendants would not be entitled to the costs which they had improperly made in that suit. The deposit must remain to abide the final decision of the cause.


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    Decarters and others v. La Farge and others.
    August 20th.
    Where upon the hearing of a cause the counsel for the defendants abandoned the defence, after hearing the opening argument in behalf of the complainants, the court refused to grant a rehearing upon the ordinary certificate of counsel.
    To obtain a rehearing under such circumstances, the defendants will be required to show a violation of duty on the part of their counsel, or that he had clearly mistaken either the law or the facts.
    This was an application for a rehearing. The object of the suit was to set aside a conveyance to La Farge, for about *36,000 acres of land in Jefferson county, made by Rottiers as the agent of the complainants, on the ground of fraud between the purchaser and agent. The cause was brought to a hearing at the last May term; and the opening counsel consumed nearly three days in reading and commenting on the pleadings and proofs. When the opening argument was concluded, the counsel for the defendant, Mr. John Y. Henry stated to the court that he thought it unnecessary to occupy time in behalf of his clients, as he entertained no hopes of their success; that he felt confident of being able to show that some of the complainants’ points were untenable ; but that two points had been taken which he deemed to be so decidedly against the defendants that in his opinion their defence could not be sustained. The two points alluded to were the absence of all proof of the alleged payment of a part of the consideration money to Rottiers on the purchase; and the nature and suspicious character of the securities given for the residue. In justice to himself he ought to state that he had always advised his clients it was indispensable that they should have some proof of the payment which was alleged to have been made at the time of the same. He therefore declined arguing the cause on the part of the defendants; and a decree was thereupon entered in favor of the complainants, setting aside the conveyance as fraudulent, and directing an account.

      H. Bleecker, now presented a petition on the part of the defendants,
    La Farge and Rottiers for a rehearing, upon the ground that their proofs had not been read at length, and that the cause had not been argued on their part. The petition was accompanied by the certificate of two counsel, setting forth that they had perused the papers in the cause and were of opinion that there ought to be a rehearing. Buck v. Fawcett, (3 Peere Wms. Rep. 242,) was cited in behalf of the application.

      A. Van Vechten and B. F. Butler, contra.
   *The Chancellor :—I have recently decided that a rehearing in this court is not a matter of course on the usual certificate of counsel, except in those cases which are specially provided for by the 70th rule. (Land v. Wickham, 1 Paige’s Rep. 256.) I have also found it necessary to alter the form of a certificate to be given by counsel on applications for rehearing, which at present is too vague and indefinite. (New Rules, 118.) In England a rehearing seems to be almost a matter of course: but I apprehend this is a case in which a rehearing would not be granted even there, without special cause shown. Respect will be paid to the opinions of counsel who have deliberately examined a case; and who certify under their oath of office that they believe the court has come to a wrong conclusion. Yet when, as in this case, they merely certify their opinion that a rehearing ought to be granted; without giving any reasons or pointing out any error in the decree, their certificate is more than counterbalanced by the declaration of other counsel on the same side, who conducted the defence from the beginning, and prepared himself for the argument; and who, after hearing the able and convincing argument of the opening counsel for the complainants, abandoned the cause as wholly indefensible. The case on the part of the complainants is much stronger when we take into consideration the fact that the counsel, who thus declined arguing in opposition to their claims, is one of the oldest and ablest practitioners iq this court, and is distinguished for his fidelity to his clients. To obtain a rehearing in such a case the defendants should show a violation of equity on the part of their counsel, or that he had acted under a clear mistake, either as to the law or the facts. That their counsel wilfully neglected his duty, no one can for a moment suspect; and there can be very little doubt of the correctness of his opinion both as to the law and the facts of the case. Although the testimony was not read at length, yet it was fully gone into by the opening counsel; and all that related to the two points upon which the defence was abandoned, was either read or referred to by the counsel, and noticed by the court. That which *was passed over related to the question of inadequacy of consideration, as to which I have never formed any opinion. The decree is founded upon the fact that the powers of Rottiers had been revoked before the conveyance; that La Farge either knew or had reason to believe such was the fact; that the $5,000 alleged to have been paid down, was never in fact paid; that the mortgage given back by La Farge to secure more than three-quarters of the purchase-money, including the inter est for five years, was upon only one-half in quantity, an'd upon less than one-third in value of the lands conveyed; and that the alleged bond, by which La Farge made himself personally liable for the payment, was not executed at the time, but had been since forged or antedated for the purpose of preventing the course of justice, by covering up the fraud.

The new power to Harrison, by which the authority of Rottiers was revoked, was executed by the complainants in Antwerp, on the 23d of June. Rottiers left that place suddenly and unexpectedly, and arrived in Kew York before the revocation reached this country. He arrived at Water-town, on Sunday morning, the 19th of August, and immediately set off for the residence of La Farge, taking his attorney with him; and before night he made a bargain for the sale of 36,000 acres of the complainant’s lands, including the Cole and Shurtliff farms, with stock, &c. The next day a deed and mortgage were executed, and as the defendants allege, $5,000 in money was paid, and the bond given for the residue. But the subscribing witness to the mortgage saw no bond executed or money paid; and the defendants have not thought proper to call upon their attorney who was present to prove the fact, although they were advised by their counsel it was indispensable. I think also the complainants succeeded in showing, so far as it is possible to show a negative, that the money was not paid; and that La Farge had not the means of raising the money at that time. The poorest lots, both with respect to location and as to the quality of the land, appear to have been carefully selected and included, in the mortgage; and the covenants and conditions therein contained appear to be wholly inconsistent with the idea that La Farge *was to be personally responsible. The bond is not referred to in the mortgage, and no person ever saw it until it was reluctantly drawn forth under the order of the court; and when finally produced, it turns out to be written on paper of a different size, texture and quality, from that on which the mortgage is drawn; with different ink, in a different handwriting, and without any subscribing -witness. If it is a criminal offence to hire witnesses to keep out of the way, it must be equally criminal to attempt to palm a forged and fictitious paper upon the court as evidence, for . the purpose of perverting the course of justice; and under the circumstances I thought it my duty to direct the counsel to place the papers in this case in the hands of the district attorney of the proper county. That question cannot be reviewed on this application ; and I have only adverted to the fact for the purpose of showing the improbability of changing my opinion on the question of fraud.

The petition for a rehearing must be dismissed with costs.


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    Norton v. Whiting and others.
    August 21st.
    Where a debtor who gave to his indorser a judgment for his security, and afterwards another person became the indorser in the place of the former one, and took an assignment of the judgment as his security, with the assent of the debtor, held that such judgment was valid, and took priority over a junior judgment, although the assignee of the first judgment was not compelled to pay the notes indorsed by him until after the docketing of the junior judgments.
    Where a judgment creditor having a claim upon the surplus moneys raised by a sale of mortgaged premises, litigates in good faith before the master, on a reference to settle the priority of liens, he will not be charged with the costs of such litigation.
    But if he excepts to the master’s report and those exceptions are disallowed, he may be charged with the costs of the hearing on the exceptions.
    The case came before the court upon an exception taken by the defendant Warner, to the report of the master, as to the priority of the liens of several defendants upon a surplus raised on a mortgage sale. In 1819, Weeks was the indorser for Whiting, the owner of the equity of redemption *who gave him a judgment for his indemnity. In 1820, Solingen was substituted as the indorser in the place of Weeks; and the latter, at the same time, with the assent of Whiting, assigned the judgment to Solingen for his security and indemnity. The judgment of Wamer against Whiting was recovered in 1824, since which time Solingen has been compelled to pay the indorsements which he had previously made. In 1827, Whiting assigned the mortgaged premises, and other property to Mercien and others, in trust to secure a debt due to the New York and Schuylkill Coal Company, and then to pay Solingen the amount of his indorsements. The whole property assigned is insufficient to pay the debt due the coal company. In January, 1828, Solingen assigned his interest in the judgment to Mercien and others; who, by virtue of that assignment, claim the surplus moneys now in court.

      J. A. Lott for Warner.

      J. W. Gerard for Mercien and others.
   The Chancellor :—From the facts presented by the answers and the proofs before the master, I am satisfied the judgment of Weeks was a valid and subsisting security in the hands of Solingen for the amount which he might be compelled to pay on his indorsements, not exceeding the amount for which it was a security in the hands of Weeks. The amount to secure which the judgment was given, was never in fact paid by Whiting; but the responsibility, as well as the security therefor, were both transferred by Weeks to Solingen, who was substituted in his place. This was long before Warner’s lien was obtained; and there is no doubt that Solingen could have enforced the Weeks’ judgment against the property in the hands of Whiting for the amount, whenever he was compelled to pay the same on his indorsements. He had not only the prior equity, but the legal right. It is insisted however that he has lost his priority by the subsequent agreement with Mercien and others. That agreement was not made for the benefit of Warner, and he has no right *to take advantage of it. If Solingen had made an agreement, in express terms, not to use pjs judgment to the injury of the coal company, it would not have prevented his using it for their benefit, and to protect the property from the lien of Warner’s judgment. But under the circumstances it is doubtful whether he might not have claimed to the extent of this judgment even as against the assignees of Whiting.

The fund in court being less than the amount due on the Weeks’ judgment, Mercien and others are entitled to the same, under the assignment of January, 1828. With the consideration of that assignment Warner has nothing to do. If the assignment is invalid, the surplus belongs to Solingen, in his own right, as owner of the Weeks’ judgment. Warner having failed in establishing any right to the surplus, has no equitable claim for his costs of the reference. But as he litigated the matter before the master in good faith, for the purpose of ascertaining his rights, he is not to be charged with the costs of the adverse party on the reference. Having put Mercien and others to the expense of a hearing on his exception to the report, after all the facts were known, he must pay the costs produced by that exception.


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    In the Matter of Tracy, an Habitual Drunkard.
    It is the privilege of a party against whom a commission of lunacy is issued, to be present at, and to have notice of its execution.

    If peculiar circumstances render it improper or unsafe to give such notice, they should be stated in the petition to the court, so that a special provision may be inserted in the commission dispensing with notice to the party.
    In this state it is not a matter of course to allow an inquisition to be traversed, but the same rests in the sound discretion of the court.
    The practice here is to award a feigned issue in all cases where a traverse would be proper, instead of allowing a formal traverse.

      August 24th.
    An issue should be directed upon the application of the party in ah cases Of doubt, especially under the act respecting habitual drunkards.
    Whether any, and what allowance will be made to a party out of this estate in the hands of a committee, depends upon the circumstances of each particular case.
    'Where a person for any considerable part of his time is intoxicated to such a degree as to deprive him of his ordinary reasoning faculties, it is prima fade evidence that he is incapable of managing his affairs.
    Some time during the last winter a commission in the nature of a writ de lunático inquirendo was issued, upon which Anson Tracy was found to be incapable of conducting his affairs in consequence of habitual drunkenness.

      A. L. Jordan now presented a petition in behalf of Tracy,
    in which it was stated that he was not incapable of conducting his own affairs; that he had no notice of the taking of the inquisition against him; that his property had been taken out of his hands and placed under the control of a committee: and praying that the proceedings might be set aside, and his property restored to him; or that he might be permitted to traverse the inquisition, and that a reasonable allowance for the expenses of the traverse might be paid out of his estate.

      A. P. Holdridge, contra,
    produced numerous affidavits, among which were those of Tracy’s father, and father in law, of his brother and his two daughters, of his brother in law and his family physician, showing that his property would be unsafe in his hands.

        In the Matter of Pettit, 2 Paige, 174

   The Chancellor said it was the privilege of a party against whom a commission of lunacy is issued to have notice, and to be present at its execution. That if there were any peculiar circumstances in the case which rendered it improper or unsafe to give notice to the party, as in some cases of furious madness, the facts should be stated in the application to the court, so that a provision might be inserted in the commission dispensing with the necessity of notice. That as the proceedings were irregular in this respect, Tracy must have an opportunity to be heard and to pro¿UGe his witnesses before the jury. But as it appeared from the affidavits on the other side that it would be unsafe to discharge the committee, the present proceedings must stand until further orders. A new commission must issue, and due notice of the time and place of executing the same must be given to Tracy.

*Tracy’s counsel then waived the want of notice, but insisted on his right to traverse the inquisition, and that a suitable allowance for the expense of the proceeding should be paid out of his estate by the committee.

The Chancellor :—By the 6th section of the statute 2 & 3 Edward 6th, chapter 8, (5 Statutes at Large, 301,) it is declared and provided that if any person shall be untruly found a lunatic or idiot, the person grieved thereby may have his or her traverse to the inquisition and proceed to trial therein, and have the like remedy and advantage as upon other cases of traverse upon untrue inquisitions or offices found; any law, usage or custom to the contrary notwithstanding. Under this statute, in England, a traverse of the inquisition is considered a matter of right, and the court has no discretion on the subject, except so far as to ascertain that the party in whose name the application is made wishes to traverse. (Ex parte Ferne, 5 Ves. 450, 883; Ex parte Sherwood, 19 Ves. 280.) But that statute has never been re-enacted here. In this state the care and custody of the estates of lunatics, idiots, and habitual drunkards is confided to this court, without any restriction or. limitation. The manner in which that control is to be exercised must therefore depend upon the sound discretion of the Chancellor. He may direct an issue to inform his conscience, whenever he deems it necessary, as in other cases. The practice here has been to award an issue, in all cases where a jury trial was proper, instead of permitting a formal traverse. (Wendell's case, 1 John. Ch. R. 600; Folger's case, 4 John. Ch. R. 169.) It is certainly proper in cases of doubt to permit a party to have a trial by jury before he is deprived of his property or his liberty, either by his misfortune or his fault. I should think it a discreet exercise of the power of the court to direct an issue in all cases of doubt, especially under the act relating to habitual drunkards. But a very erroneous impression appears to have gone abroad on this subject. It is supposed by many that the prosecutor in such cases is bound to prove affirmatively that an habitual drunkard is incapable of managing his affairs. On the contrary, the fact that a person is *for any considerable part of his time intoxicated to such a degree as to deprive him of his ordinary reasoning faculties, is prima facie evidence, at least, that he is incapacitated to have the control and management of his property.

Whether an allowance should be made to the party out of the estate to pay the expenses of a traverse is a different question from the one whether he shall be permitted to subject the prosecutor to the expense of a trial. In Sherwood v. Sanderson, (19 Ves. 290,) Lord Eldon allowed the costs of a traverse, but desired it tobe distinctly understood that he did not consider the granting of costs a matter of course. In Folger's case, before cited, Chancellor Kent charged the whole costs of an unsuccessful traverse upon a third party, at whose instance the issue was awarded. And in M’Lean’s case, (6 John. Ch. R. 440,) although he permitted an issue to try the question of sanity, he refused to charge the expense thereof upon the estate of the lunatic. In every case of this kind the court must exercise a sound discretion, regulated by the particular circumstances, so that while the party proceeded against is not deprived of the means of protecting his legal rights, the property, which is necessary for the support of himself and his family, .shall not be unnecessarily wasted in useless litigation,

In this ease, although from the affidavits before me lean have but little doubt as to the result, yet as the property is large, and the party has hot had an opportunity to be heard on the taking of the inquisition, I shall grant an issue, and direct the committee to pay to the counsel of Tracy twenty-five dollars out of his estate to defray the necessary expenses on his part.

       This power is now vested in “ Supreme Court” which is substituted for “ Chancellor” and “ Court of Chancery” pursuant to eh. 280 of 1847; and in certain cases in the “ County Court” which was substituted for “ Court of Common Pleas” pursuant to chap. 30 of the Code of Procedure, sub. 8. See 2 R. S. (4th ed.) 237, secs. 1, 2, 3.


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    *Bruyn v. The Receiver of the Middle District Bank.
    August 24th.
    When a bank becomes insolvent, the cashier has no lien upon the money in the bank for his deposits therein, or for the payment of his salary.

    He has no other or greater rights than the .other creditors of the institution.
    Severyn Bruyn was the cashier of the Kingston branch of the Middle District Bank, and at the time the bank stopped payment he was a depositor to the amount of $105, and was allowed an annual salary, out of which he was to pay his own clerk, and was also to furnish a banking room for the accommodation of the bank. He petitioned to retain out of the moneys in the bank, at the time it stopped payment, the amount of his deposit, and an allowance for his salary up to that time pro rata. The receiver contended he was to be considered a mere creditor of the bank, and to receive his dividend with the other creditors. The question was, by consent of the parties, submitted to the court.

        Bank of Niagara v. Rosevelt, 9 Cow. 409.

   The Chancellor:—The money in the bank did not belong to the cashier, but to the institution. Neither the cashier or clerk had a right to exercise any'control over it, except so. far as they were authorized by the directors. The cashier had no lien upon it for the payment of Ms salary or deposit ; and the directors could not give him such a lien under the provision of the act of 1825, in contemplation of the insolvency of the institution. It is evidence of the fairness of the officers of the branch that they were not informed of the situation of the mother bank in time to withdraw their deposits; but it is their misfortune to be left in the same situation as other depositors of the institution.

The receiver is authorized to allow such sum for the use of the banking room, and to the clerk for attending to demand payment, and protest notes which fall due, as he may deem reasonable.

       Money deposited generally with a banker, becomes the money of the depositary. Chapman v. White, 2 Seld. 412.


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    *In the Matter of the Receiver of the Middle District Bank.
    August 24th.
    The right of a debtor to a bank to off set any demand he held against the bank at the time it stopped payment, is not altered by the appointment of a receiver.

    If the receiver is compelled to resort to an indorser, where the real debtor is unable to pay, such indorser can off set the bills of the bank which he held at the time it stopped payment, unless he is indemnified by the real debtor.
    "Where bills of a bank are obtained by one of its debtors after it stops payment, they cannot be set off by such debtor against the debt he owes the bank.

    The receiver of the Middle District Bank submitted a variety of questions to the court, for instructions thereon relative to the discharge of his duties, on wMch the following directions were given:

       But see Haxton v. Bishop, 3 Wen. 13.

        Bank of Niagara v. Rosevelt, 9 Cow. 409.

   The Chancellor:—In the case of Miller v. The Receiver of the Franklin Bank, (ante, 444,) this court decided that any equitable offset which the debtor had at the time the bank stopped payment was not altered by the appointment of a receiver. It makes no difference whether the debt of the bank was then payable or has become due since. If a debtor claims to off set bills which were then in the hands of any other person for his use, the receiver should be satisfied he was the real owner of the bills at that time; and if the amount due thereon is lost, that the loss will legally and equitably fall on such debtor, and not upon the person who had them for his use. If the real debtor is unable to pay, and the receiver is compelled to resort to the indorser, who is eventually to be the loser, he has the same equitable claim to off set bills which he had at the time the bank stopped payment. But no such off-set should be allowed to an indorser where he is indemnified by the real debtor, or where the latter can be compelled to pay.

An overdrawing is a debt due to the bank, and if the person who has overdrawn his account was, at the time the bank stopped payment, a bona fide holder of the bills in his own *right, the same rule of set-off must be applied. The evidence on which the receiver should act in allowing set-offs should be such as to satisfy him that the debtor could sustain such off-set in a court of justice, if a suit was brought against him. If the receiver thinks proper to rely upon the affidavit of the party, he should' at least require him to state when, where and from whom he received the bills, and under what circumstances.

Where the debtors and their sureties are insolvent, and only able to pay a part of their debts, it will be no injury to the creditors of the institution, if the receiver takes Middle District bills in payment; but in all such cases the receiver should estimate such bills at the probable amount of dividend which would be obtained thereon; that is, if the debtor is able to pay 75 per cent, of his debt, he should not be permitted to pay in bills at par, when they are in fact worth less than seventy-five per cent, in good money. In one of the suits brought by the receiver of the Greene County Bank, the Supreme Court decided, after full argument, that under the provisions of the act of 1825, bills which had been obtained by the debtors of the bank, after it stopped payment, but before the appointment of a receiver could not be off set; that the equitable right of the debtors to a set-off was not altered by the neglect of the attorney-general to apply and obtain the appointment of a receiver immediately. This must be considered the legal rule by which the receiver is to be governed. It having been decided there was no off-set at law in such cases, there can be no pretence for claiming it in equity, as it is wholly opposed to every principle of equity and justice.

If bills of the bank were taken to exchange, and remained on hand at the time the bank stopped payment, they should be returned; but if the agent had parted with the bills, it would be manifestly unjust to allow him to receive Middle District bills afterwards to off-set.


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    *Lawrence v. The Greenwich Fire Insurance Company.
    August 24th.
    Where the holders of a majority of the stock of the corporation neglect to choose officers to take charge of the property of the corporation, a receiver will be appointed, upon the application of the owners of a minority of the stock, to take possession of the effects of the corporation and to preserve the same for the benefit of the stockholders generally.
    This was a bill filed by a stockholder against the Greenwieh Fire Insurance Company and some of its former directors. It alleged that the directors had violated their trust; that the corporation was virtually dissolved; that it had no office or place of business; and that it had no officers to attend to its concerns. The bill had been taken pro
      confessa against the company, upon a special service and publication of notice, in pursuance of an order of the court,

      H. H. Warner, for the complainant,
    now moved for a receiver to take charge of the property and effects belonging to the corporation.

      D. Selden, in behalf of the former directors, who had answered, opposed the motion.
   The Chancellor :—From the facts disclosed in the bill, answers and petition, it is evident there is no person at present authorized to take charge of and conduct the affairs, of the corporation. If those who own a majority of the stock neglect to elect directors to take charge of the property of the corporation, the minority are not to be the sufferers inconsequence of such neglect. Under these circumstances it is proper to appoint a receiver to take charge of the effects of the company, and preserve them for the benefit of the stockholders generally. The cases of Andrews v. Powis, (2 Brown’s P. C. 504,) and Maguire v. Allen, (1 Ball & Beat. 75,) fully sustain the principle that a receiver may be appointed in any case, where it is necessary for the preservation of the property pending litigation.

*It must be referred to a master to appoint a receiver with the usual powers, and to settle the amount of security -to be given, and to ascertain the sufficiency of the sureties offered. After the appointment is completed, the present .officers of the institution., if any .there are, and all former officers, must deliver .over, upon oath, under the direction of the master, all books, vouchers, property or effects in their hands, or within their power or control, belonging to the company.


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    Brown and others v. Story.
    August 24th.
    Where a party pending the suit is admitted to prosecute a defence in forma pauperis, he is not excused from the payment of the costs which accrued before he was admitted to defend in that manner.
    Whether, under the statute of this state, a party can be admitted in any case to defend in forma pauperis? Quaere.

    This was an application for leave to defend in forma pauperis. The defendant commenced a suit at law against the complainants, whereupon they filed a bill in this cause and obtained an injunction staying the suit at law. Excep tians were taken to the defendant’s answer, which, on reference thereof, were allowed by the master. In addition to the application for leave to defend in forma pauperis, the defendant asked to be excused from payment of the costs on the exceptions.

      B. F. Butler, for the complainants.

      William Kent, for the defendant.
   The Chancellor:—I have already had occasion to say that applications of this kind ought not to be encouraged in this country, where, if a party has a just claim or valid defence, solicitors and counsel are always ready to assist him on receiving the trifling disbursements which must be paid to other officers of the court. A claim to be excused from paying costs already accrued has never been allowed. (Mosel. Rep. 68; Wilkinson v. Belcher, 2 Brown’s Ch. Cas. 272.) Even after a party is admitted to prosecute as a *pauper, he is liable for the costs of any irregular or improper proceedings on his part. (Home v. Ailoff, Tothill, 139.)

It is at least doubtful whether a party is to be permitted to defend as a pauper in any case. In England the right to sue and defend in Chancery, m forma pauperis, depends upon the rules of the court. The statute, (11 Hen. 7, ch. 12,) only extends to suits prosecuted in the common law courts. And it has there been held that a party is not entitled to defend as a pauper, except in the particular cases provided for in a subsequent Act of Parliament. (Barnes’ Notes, 328; 5 Bac. Abr. tit. Pauper, B. p. 299.) The statute of this state, (1 Rev. Laws, 524,) provides for the proseution of suits by poor persons in Chaticery as well as at common law, but makes no provision for a defence of a suit in forma pauperis. In order to obtain that privilege the defendant would be compelled to swear he was not worth, and had not in his possession or within his power or control, property or other means to the amount of 5l.; and he would not, as in the case of a complainant, be permitted to except to the subject matter of the litigation. In Spencer v. Bryant, (11 Ves. 49,) Lord Eldon decided that an affidavit of the defendant that he was not worth 5l., except the matter in question, was not sufficient to authorize him to defend in forma pauperis.

But in this case the affidavit is wholly insufficient. It appears that, in addition to the defendant’s claim of $15,000 against the Browns, the United States are indebted to him for wages, and he has already paid his solicitor and counsel in this cause $74. He produces no certificate from them that in their opinion he has a good and sufficient defence in this suit, and he does not even himself swear that he has a meritorious defence to the bill filed by the complainants in this cause.

The petition must be dismissed with costs.

       2 R. S. (4th ed.) 688, secs. 1, 2, 3.


text:
    *Philips and others v. Wickham and others.
    August 28th
    Where certain persons are invested by statute with discretionary powers, Chancery will not interfere to correct mere errors of judgment, if the powers conferred have not been illegally or unconscientiously exercised.
    Whether at common law, civil and corporate officers are authorized to hold over after the expiration of the time for which they were elected, until successors are appointed. Quaere.

    Where the officers of a corporation are not authorized to hold over, if the corporators, without the presence of any officers, or any act to be done on their part, possess the power to assemble and choose officers to carry into effect the objects of the incorporation, a neglect to choose officers at the proper time will not work a dissolution of the corporation, but will merely suspend the exercise of the powers of the corporation until proper officers are chosen.

    But if the corporators have not the power to fill vacancies without the presence of their officers, or something to be done by them preparatory thereto, and such officers do not attend, or neglect to do the act requisite to the validity of the appointment, or there are no such officers, then, as the powers of the corporation cannot be revived, it is virtually dissolved.
    The right of voting by proxy is not a general right, and the party who claims such right must show a special authority for that purpose.
    The act of March 6, 1801, to raise moneys to drain the drowned lands in the county of Orange, gives the right of voting for commissioners under the act only to the persons who own lands in fee.
    Where, in the election of corporate officers, no particular mode of proceeding is prescribed by law, if the wishes of corporators have been fairly expressed and the election was conducted in good faith, it will not be set aside on account of any informality in the manner of conducting the same.
    By the act of March 6th, 1807, entitled “ An act to raise moneys to drain the drowned lands in the county of Orange,” three inspectors were appointed to determine the number of acres of land belonging to each owner or proprietor which would be benefited by removing the obstructions in, and straightening the course of the river Wall Kill and the two streams falling into the same ; and to malrc a roll thereof containing a statement of the several lots so to be benefited, with the number of acres in each, distinguishing whether the same was held in severalty, in common, in joint tenancy or co-parcenary, and the names of their respective owners or proprietors that might come to their knowledge; and to ascertain and determine the proportion that each *owner or proprietor should pay per acre of any sum of money to be raised for the purpose of draining such lands, according to the proportion of benefit which such owners or proprietors should eventually receive. Five commissioners were also named in the act to remove the obstructions, &c., for the purpose of draining the lands; with power to them and their sucessors, from time to time, to apportion such sums of money as might be necessary for that purpose, among the owners or proprietors, according to the roll made by the inspectors: and to raise the same by a sale of the lands, if not paid by the owners or proprietors. The powers of the commissioners named in the act were to cease on the first Tuesday in June, 1808; at which time the owners or proprietors of the said tract were to meet at the court house in Goshen, and elect a like number of commissioners to transact and manage the said business for one year; and the first Tuesday of June in every year thereafter was made the anniversary day for the owners or proprietors of the said tract to meet at the same place to elect a like number of commissioners to conduct and transact the business from year to year; which commissioners, during the year for which they were respectively elected, were to possess all the powers, perform all the duties, and keep regular accounts, and account as fully as the commissioners named in the act were authorized and required to do. Each of the owners or proprietors of the said tract who should be assessed on the roll for ten acres, was by the act to be entitled to one vote; and also one vote for every twenty acres he might own above ten and under four hundred acres; and an additional vote for every fifty acres he owned above four hundred acres.
    A roll or list of the lands was made by the inspectors and filed in conformity to the act; and commissioners were regularly elected from year to year until the first Tuesday in June, 1828; when, through inadvertence, no election was held, but the old commissioners continued to act.
    Many attempts had been made, and about forty thousand dollars had been expended from time to time in endeavoring *to drain the drowned lands by the bed of the Wall Kill, but without success. In April, 1826, the legislature passed a supplementary act, authorizing the commissioners then in office and their successors, in the further prosecution of the draining of the said lands, to cut a canal from the river on the east side thereof, above Horse Island, on the most eligible route or course to the river, on the east side of G. N. Philip’s mill pond, about three miles below. Previous to and after the passage of this last act, the owners and proprietors of the drowned lands were divided in opinion as to the best mode of draining them; some were in favor of doing it by means of the canal, and others by deepening and widening the bed of the Wall Ball at the outlet of the swamp. Many surveys and estimates wore made to ascertain the practicability and expense of the two projects. At the last anniversary election for commissioners two tickets were formed, the one containing the names of those who were supposed to be in favor of draining by the canal route and the other of those who were in favor of draining by the outlet or bed of the Wall Kill; and two of the owners or proprietors were appointed inspectors of the election by the meeting. The persons in favor of the canal ticket had proxies from owners or proprietors, who were entitled to 94 votes; and McGregor, one of the complainants, who was in favor of the other ticket, had proxies for 26 votes. He also claimed to give 82 votes on a tract of 3,500 acres, which had belonged to his uncle in England, who died a few months previous seized of the same. McGregor likewise claimed a right to vote on 2,000 acres of 3,500, under an alleged agreement with his uncle to work it on shares for 20 years. The inspectors of the election decided that under the act the owners or proprietors must vote in person, and were not authorized to appoint a proxy for that purpose. Those votes were accordingly rejected. They also decided against McGregor’s right to vote upon the 3,500 acre tract or upon the 2,000 acres thereof. After all the persons present except two had voted, and after some of them had left the court house, McGregor snatched the hat which contained the votes from the inspectors, and refused to return it. The inspectors then *procured another hat, and called upon those who had not voted to hand in their votes, and then canvassed the votes thus given; by which it appeared that the defendants, except Gen. Wickham, whose name was on both tickets, had received 77 out of 79 votes. The inspectors thereupon declared the defendants, who composed the canal ticket, duly elected; and they made a certificate thereof, by which they declared them duly elected by a majority of the votes in possession of the inspectors. On a subsequent examination of the votes in the hat, which was returned by McGregor, it appeared that of all the votes given, both before and after the hat was taken from the possession of the inspectors, the lowest candidate on the canal ticket had 42 majority over the highest on the other ticket, and 62 over any other candidate on that ticket.
    The defendants claimed to be duly elected, and authorized to act as commissioners. They had made contracts for a part of the work on the canal; and had also made an assessment of $26,500, to defray the expense of opening the canal, and were proceeding to collect the amount in the manner prescribed by the act, when McGregor and others filed their bill to restrain them from proceeding with the canal or to collect the assessment. The complainants alleged that the powers of the commissioners were at an end, by the neglect to elect in 1828; that they were not duly elected in 1829 ; and that they were wrongfully proceeding to drain the lands by the canal route, when that by the bed of the Wall Kill was the most proper and least expensive. An order having been granted for the defendants to show cause why an injunction should not he granted, they now appeared to show cause and read their answer and several affidavits in opposition to the motion.

      A. Van Vechten and S. J. Wilkin for the complainants.
    G. F. Tallman and B. F. Butler for the defendants.

       See Ex parte Heath, 3 Hill, (N. Y.,) 42; 2 Kent, 259; Trustees of Vernon v. Hills, 6 Cow. 23; McCall v. Bryam Man. Co., 6 Conn. 428; All Saints Church v. Lovett, 1 Hall, 191.

   *The Chancellor :—By the answer of the defendants, which has been read in opposition to this motion, it pretty satisfactorily appears that the defendants are, in good faith, pursuing the course, in draining the drowned lands, which they believe to be the best, and the least expensive to the owners or proprietors. The statute has committed that question to their decision, and unless they are exercising the right illegally, or unconscientiously, this court ought not to interfere, although the Chancellor might differ with them in opinion. This is not the proper tribunal to correct mere errors of judgment in officers entrusted with discretionary powers.

But it is insisted, by the counsel for the complainants, that the power of the owners or proprietors of the drowned lands to elect commissioners and to proceed in the prosecution of this work, under the laws of 1807 and 1826, is at an end in consequence of their neglect to elect commissioners in 1828. And I shall now proceed to examine this question, without stopping to inquire whether the establishment of that proposition would furnish to the complainants any ground of relief in this court.

By the act of 1807, the commissioners, who were to be elected annually on the first Tuesday in June, were, during the year they should respectively be elected to act, to possess all the powers granted to the first commissioners. The peculiar phraseology of this statute seems to be inconsistent with the idea that they should hold over until others were elected in their stead. And were it not for the strong intimations to the contrary by some of the justices of the Supreme Court in The People v. Runkle, (9 John. Rep. 147,) and The Trustees of Vernon Society v. Hills, (6 Cowen’s Rep. 23,) under the act respecting religious incorporations, the language of which appears to be equally clear, 1 should have supposed that the functions of these commissioners ceased at the end of the year for which they were elected. There are undoubtedly some common law officers who are to be elected or appointed periodically, but who, from the necessity of the case, continue to exercise their functions until others are *elected or appointed to fill their places. In the anonymous case, (12 Mod. Rep. 256,) it is said a constable is not discharged until his successor is appointed and sworn in; because the parish cannot be without an officer. There are many cases in the books relative to the magistrates of boroughs and other incorporated places; in some of which cases it has been decided that those officers held over, and in others that they did not. But I apprehend all these cases depended upon the peculiar provisions of their respective charters, and not upon any general principles of common law. In the case of The Queen v. The Corporation of Durham, (10 Mod. Rep. 146,) the court said the office of town clerk was an office for life, unless restrained by charter or proscription. And although by the custom of the borough he was to be elected annually, he might continue in office, and would do so, until another was chosen. But they said if'the return had been that he was elected for one year only, his office would have expired at the end of the year, whether a successor had been appointed or not.

In the case of The Corporation of Tregony, (8 Mod. Rep. 127,) the mayor was to be elected annnally, but there was an express provision in the charter that he should hold over until another was duly elected. But in the Banbury case, (10 Mod. Rep. 346,) where there could be no election without the presence of the old mayor, who was not authorized by the charter to hold over, and the day prescribed was permitted to pass without an election, the corporation was held to be dissolved. I am not aware of any general principle of the common law which authorizes all civil, or corporate officers to hold over after the expiration of the time for which they were elected, until their places are supplied by others; and the numerous statutes both here and in England giving such authority in express terms, seem wholly inconsistent with any such common law principle. But the question I am about to consider is entirely distinct from that which relates to the right of the old commissioners to hold over. It is not necessary to express any opinion on that point; or if they had not the right to inquire whether their acts were void, or only voidable.

*The owners or proprietors of the drowned lands, under the act of 1807, are quasi a corporation; but the objects to be accomplished by the act can only be attained through the agency of the commissioners, who are to be elected annually. If the presence of the commissioners was necessary to the validity of an election, or any thing was to be done by them preparatory thereto, such as giving notice of the time and place, &c., there could be no election if the commissioners neglected to attend, or to give the requisite notice; a fortiori there could be no election if there were no commissioners in office; and in that case the powers granted by the act would be virtually at an end. But if the corporators have the power without the presence of their officers, or any act on their part, to assemble and choose officers to carry into effect the object of the law, their rights by a neglect to choose officers would be merely suspended. Although they may be forfeited by non-user or otherwise, they cannot be taken from them except by a direct proceeding, and judgment against them declaring the forfeiture.

If a corporation consists of several integral parts, and some of those are gone, and the remaining parts have no power to supply the deficiency, the corporation is dissolved. As in the case in Rolle, (1 Roll. Abr. 514, I.,) where the corporation was to be composed of a certain number of brothers, and a certain number of sisters, and all the sisters were dead, and it was admitted that all grants and acts done by the brothers afterwards were void; for, after the sisters were dead, it ivas not a perfect corporation. But the case which is immediately afterwards stated by Eolle, shows that if the brothers had possessed the power to appoint other sisters in the place of those who were dead, the corporation might have been revived. So, Baron Comyn says, if a corporation refuses to continue the election of officers till all die who could make an election, the corporation is dissolved. (4 Com. Dig. 273, tit. Franchises, G. 4.)

The incapacity to receive or resuscitate the powers of a corporation may arise from three causes; 1st. The absence of the necessary officers who are required to be present, when the deficiency is supplied, or their incapacity or neglect to do some act which is requisite to the validity of the *appointment; 2d. The want of the necessary corporators who are required to unite in the appointment; and 3d. The want of the proper persons from whom the appointment is to be made. The case of The Corporation of Banbury, before referred to, appears to be one of the first description. And the case cited from Rolle, and that put by Chief Baron Comyn, as well as The King v. Passmore, (3 Term Rep. 199,) and The Corporation of Maidstone, and The Borough of Teverton, referred to in that case, all appear to belong to the two last classes of cases. The statute 11 Geo. 1, ch. 4, (15 Stat. at Large, 178,) has provided for the first class of cases; but the sixth section of the act expressly excludes the second class, and no provision is made for cases of the third class. The result of an examination of all the cases on this subject is the principle so ably and successfully contended for by Serjeant East, in The King v. Passmore, that if the corporators have the power in themselves to supply the deficiency in their body, their rights are not extinguished, but only dormant. If however tnat power is gone, and they cannot act until the deficiency is supplied, the corporation is dissolved. In the language of Lord Mansfield, this is not a forfeiture for non-user, but is a consequence of law. “ The corporation is dead, and not barely asleep.”

Applying these principles to the case now under consideration, I am satisfied the powers of the owners or proprietors of the drowned lands, under the act of 1807, were not extinguished by their neglect to elect commissioners in 1828, whether the old commissioners held over or otherwise. The time and place for the annual meeting of the owners or proprietors is fixed by law. No act is required to be done by the commissioners, except to report their proceedings for the last year to the meeting; and if there were no commissioners, there could be no proceedings to report. The commissioners are not even required to preside at the meeting. There is nothing in the nature of the duties to be performed which necessarily requires a continued succession of commissioners. The officers of towns are required to be chosen by the people annually, at their several town meetings; yet *if a part of those officers should die before the expiration of the year, and the inhabitants of the town should, from any cause, neglect to hold their annual town meeting, it would not prevent them from supplying the vacancy at their next anniversary meeting for that purpose. The officers thus chosen would possess all the powers of their predecessors, in the same manner as if there had been an uninterrupted succession.

It, therefore, becomes necessary to examine as to the regularity of the election in 1829. The first question which presents itself on this point' is as to the right to vote by proxy. This point does not necessarily arise in the case, because from the bill and answer it appears that if all the proxies had been admitted the defendants would have had a still larger majority of the votes. The proxies actually held by them were 94, while those held by McGregor were only- 26. I lay out of question the 82 votes, which the latter claimed the right to give as the agent of his uncle, because he never had from him any specific power to vote on the property; and what is conclusive on that point, because the uncle had been dead for several months before the election, although the fact was not known at the time; and by the bill it appears McGregor had no authority whatever from the heirs or- devisees. But as it may prevent future contest on this point, it may be proper to express an opinion thereon.

The right of 'voting by proxy is not, a general right, and the party who claims it must show a special authority for that purpose. The only case in which it is allowable, at the common law, is by the peers of England, and that is said to be in virtue of a special permission of the king. And it is possible that it might be delegated in some cases by the by-laws of a corporation, where express authority was. given to make such by-laws, regulating the manner of voting. I am, not aware of any other case in which the light was ever claimed; and the express power which is generally given to the stockholders of moneyed and other private corporations is opposed to the claims in this case, where there is no express, or implied power contained in the act. I, therefore, think the decision of the inspectors correct, in rejecting the votes offered under- the proxies.

*The claim of McGregor to the vote on the 2,000 acres is equally- untenable. If' his name had been contained on the original assessment roll as the owner of this tract, it would have presented a different question. In that case the roll itself would have been the evidence of his right. But it is evident the legislature intended to give the right of voting to, the owners of the lands in the ordinary acceptation of the term; which- implies an ownership, in fee. From, the latter part of the eighth section of the act, it is evident the legislature intended to. use the terms owner and proprietor- in' the same sense. The owner- or proprietor is there authorized to give one vote for every ten acres assessed to him on the roll, and one vote for every twenty acres he may own above that quantity, &c. The 2,000 acres in question were originally entered on the roll as the property of an individual, in fee. From him it has since been conveyed to the uncle of McGregor. Whether under such circumstances, if particular estates were carved out of the property, it would be necessary for the owners of the several estates to unite for the purpose of voting thereon, it is not necessary now to decide; but a mere tenant for years, or one who has taken the property on shares, and has no substantial interest therein, cannot exercise this right without the concurrence of the real owner of the property. The assessments are not a personal charge upon the owners or proprietors; and if not paid can only be collected by a sale of the land. The owner of the inheritance is therefore the person who is principally interested in the election of com missioners, as the expense of the improvements must fall on his estate in the premises.

By the bill it appears that the votes which were in the hat before it was taken by McGregor were restored to the inspectors, without addition or alteration. And by the answer and affidavits on the part of the defendants, it appears that they had a majority of all the votes including those taken by McGregor. Under such circumstances, it does not lie in his mouth to say the election was illegal or irregularly conducted. If he could not set up the irregularity, on a bill filed by him as the sole complainant, he cannot do it by uniting with others. If they wished to take advantage of such an irregularity, they should have filed their bill and made him a party defendant. And in such a case if the complainants had succeeded, the court would have punished him by compelling him to pay the costs which had been incurred in consequence of his misconduct. But there was no irregularity in this case sufficient to avoid the election. The statute has prescribed no form to be observed, and the only questions are, whether all who had the right and wished to vote have been permitted to exeroise that privilege, and whether the present commissioners were the choice of a majority of the voters. Of this there can be no doubt. The mode of conducting the election by the appointment of inspectors, and a public canvass of the votes in the presence of the electors, as heretofore pursued, was a proper mode of proceeding, and ought not to be departed from without cause. If a different course had been adopted without any sufficient reason, and there had been doubt as to the result or the fairness of the election, the same would have been set aside by the proper tribunal.

Although the inspectors may have erred in not commencing the canvass anew, after the outrage of McGregor, so that the election would be void if the number of votes previously taken had not been ascertained, yet there can be no suspicion of the bona fides of the transaction on their part. And the fact of the defendants’ election, by the majority of the voters, being now ascertained, there can be no pretence for setting aside the election. As many of the electors had left the court house before the outrage was committed, the course pursued, as it resulted, showed more clearly the wishes of the majority than could have appeared appeared by commencing de nova.

A proceeding do nova after part of the electors had voted, and when they were absent, could only have been justified by the necessity of the case.

Having arrived at the conclusion that the power of the commissioners under the act is not at an end, by the neglect of the owners and proprietors to elect in 1828, and that the defendants were duly elected in 1829, it becomes unnecessary for me to examine the question as to the right of this court to stay the proceedings of the commissioners if they *were unduly elected; or as to the propriety of granting a preliminary injunction under the circumstances stated in the bill. '

The rule to show cause why an injunction should not issue must be discharged with costs to be paid by the complainants.

        Slee v. Bloom, 5 John. Ch. 366; S. C., 19 John. 456; Brinckerhoof v. Brown, 7 John Ch. 217; Blake v. Hinkle, 10 Yerg. 218.