text:
    The Sea Insurance Company vs. Stebbins and others.
    An affidavit of the defendant in a suit in chancery that he has a good defence, without stating the nature and substance of such defence, is not sufficient.
    The complainant, in a foreclosure suit, is entitled to a receiver of the rents and profits of the mortgaged premises pending the suit, where such premises will not, upon a sale thereof under the decree, bring sufficient to pay the debt and costs; and. where the party who is personally liable for the mortgage debt is irresponsible. But the appointment of a receiver will be dispensed with if the defendant, who is in possession of the mortgaged premises, gives security to account for the rents and profits, as the court shall direct, in ease there should be a deficiency upon the sale of the pre. mises under the decree.
    In a petition for the appointment of a receiver of the mortgaged premises, in a foreclosure suit, the complainant must state* that the premises are not of sufficient value to satisfy his debt and costs, and that the mortgagor or oilier person who is personally liable for the payment of the mortgage debt is irresponsible, or is unable to pay the expected deficiency. He must also show who is in possession of the mortgaged premises; as a receiver can only be appointed where the person in possession of the mortgaged pre, mises, by himself or his tenants, is a party to the suit.
    Where a defendant in a foreclosure suit is in possession of the mortgaged premises by his tenant, who is not a party, the possession of the tenant can not be disturbed by the appointment of a receiver: but he may be ordered to attorn to the receiver, and to pay the rent to him.
    January 25.
    The bill in this cause was filed, in February, 1838, to foreclose a mortgage given by Stebbins and wife to the Sea Insurance Company, to secure the payment of |5000 and interest. The mortgagor appeared and answered the bill, and the cause was put at issue, by filing a replication to the answer, on the 3d of December in the same year. No further proceedings were had in the cause until November, 1840, when the receivers, who had been appointed by the chancellor to take charge of the property and effects of the Sea Insurance Company, under the provisions of the revised statutes relative to proceedings against corporations in equity, presented their petition for the appointment of a receiver of the rents and profits of the mortgaged premises. The petition stated the object of the suit, and the belief of the petitioners that the mortgage money, together with the interest thereon from November, 1835, remained unpaid : and that the mortgagor, or some person claiming under him subsequent to the mortgage, was in possession of the mortgaged premises ; which premises the petitioners believed were not worth sufficient to pay the amount of the principal of the mortgage, exclusive of interest and costs. This last allegation was supported by the affidavit of an,agent of the receivers, who had been employed by them to examine the mortgaged premises and to ascertain the value thereof. The application was resisted by affidavits in behalf of the mortgagor, staling that the mortgaged premises, exclusive of the buildings thereon, were worth in cash at least the sum of five thousand six hundred and five dollars; and that the cash value of the buildings was at least three thousand one hundred and thirty dollars. The mortgagor also swore that he had a good defence to the suit, upon the merits : but did not explain in his affidavit the nature or substance of such defence.

      E. H. Blatchford, for the petitioners.

      M. T. Reynolds, for the defendant Stebbins.
   The Chancellor.

The affidavit of the mortgagor that he has a good defence to the suit, without stating what that defence is, can have no influence whatever in the decision of this application. For the practice in this court is to require the party to state under oath what his defence is, to enable the chancellor, or the vice chancellor before whom the application is pending, to see whether it is a real or only an imaginary defence to the suit, In applications of this kind the court must also be satisfied beyond all reasonable doubt that the mortgaged premises, upon a master’s sale, will bring sufficient to satisfy the debt due upon the mortgage, with interest and costs, where the petition shows a proper case in other respects for the interference of the court, or a receiver of the rents and profits of the mortgaged premises will be granted ; unless the person in possession consents to give security to account for such rents and profits, as the court shall direct, in case there should ultimately be a deficiency upon the sale of the premises under the decree.

The petition in this case, however, is materially defective in two particulars. The court is only authorized to appoint a receiver where a party to the suit is in possession of the mortgaged premises, either by himself or by his tenants. The petition for a receiver must therefore state who is in possession ; so that the court may not only see that he is a defendant in the suit, but also that he has had due notice of the application, unless he is in default for not appearing in the cause. Where a party to the suit is in possession by his tenant at the time of filing the complainant’s bill, which tenant is not himself a party, the possession of such tenant will not be disturbed by the appointment of the receiver ; but he will be directed to attorn to such receiver and pay over the rents to him, instead of paying them to the former landlord. The petition in this case does not show whether the mortgagor, or some subsequent purchaser under him, is in possession, of the mortgaged premises ; nor does it state that any of the parties to the suit are in possession, either in person or by their tenants. The court therefore cannot see that it has jurisdiction to order any person to deliver possession of the mortgaged premises to the receiver, or to order any persons who are in possession as tenants merely, to attorn and pay over their rents to such receiver.

Again ; to authorize the court to interfere and appoint a receiver where there is a mortgagor, or other party to the suit, who is personally liable for the debt secured by the mortgage in case the amount raised upon the sale shall be found insufficient to pay the debt and costs, the party applying for such receiver must not only satisfy the court that there is a probability that the mortgaged premises will not sell for enough-to satisfy the decree, but also that that the party who is thus individually liable is himself irresponsible for the probable amount of such anticipated deficiency, after paying all his other just debts. But in this case there is no intimation, either in the petition of the receivers of the Sea Insurance Company or in the affidavit of their agent in support of such petition, that Stebbins the mortgagor is not abundantly able to pay the whole amount of the mortgage, with interest and costs, if the complainants shall eventually succeed in this suit.

The petition must therefore be denied with $14 costs ; to be paid by the petitioners out of the funds of the corporation in their hands.

         See Meach v. Chappell, ante, p. 135.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Browning and another vs. Bettis & Garrow.
    The more denial, on oath, of a defendant, in a creditor’s bill, that he has any property, is no answer to an application for the usual order for the appointment of a receiver. And Where such defendant, in his answer, admits he lias certain property but denies that he has any other, the order for the delivery of his property must be general; and should not be confined to the property which he admits to belong to him, and to be in his possession or under his control.
    The order for the appointment of a receiver, upon a creditor’s bill, where the defendant does not consent that his examination before the master shall be a substitute for an answer, as provided by the 191st rule, only authorizes the complainant to examine the defendant on oath, before the master, in relation to the property which he is ordered to assign and deliver over to the receiver.
    The object of the examination of the defendant in a creditor’s bill, upon the usual order for the appointment of a receiver, is not to obtain an answer to the complainants’ bill, nor is it to elicit evidence to sustain the suit. But it is merely to procure and compel the delivery to the receiver of all the property and effects, either legal or equitable, which the defendant has in his possession or under his control; to abide the final decree in the cause. And the rights of the complainant to examine the defendant before the master, as to such property, are the same where the defendant answers the bill as where he suffers it to be taken as confessed; except where the defendant has given a stipulation under the 191st rule.
    The complainant in a creditor’s bill cannot reach the salary, or compensation, which is to become due to the defendant at a future time, for the performance of services which had not been completed at the time of filing the bill j where the defendant would have no legal or equitable right to demand payment for the services already performed, in case he should thereafter neglect to complete the services which had not been rendered at the time the complainant’s bill was filed.
    But where all the services, to entitle the defendant to his salary or compensation, have been rendered at the time of filing the complainant’s bill, such salary or compensation may be reached by the creditor ; although it had not become actually payable when the bill was filed.
    January 25.
    This was an appeal from an order of the vice chancellor of the fifth circuit appointing a receiver upon a creditor’s bill. The bill, among other things, sought to reach the compensation of the defendant Bettis, as an assistant to Garrow, the marshal of the northern district of New-York, in taking the sixth census. On the day for which the application for a receiver was noticed Bettis put in his answer, denying that he had any property, things in action, or equitable interests, except two promissory notes and a few articles of personal property mentioned in his answer. He also denied that there was any thing due to him, as assistant to the marshal in taking the census, at the commencement of this suit 5 as he had not at that time completed the census and made a return thereof to the marshal, as required by law to entitle him to compensation for his services. The vice chancellor directed Bettis, the judgment debtor, to execute to the receiver a general assignment of all the property, equitable interests, or things in action which he owned, or possessed, or was entitled to, at the time of filing the complainants’ bill; but he restricted the order, as to the delivery of the property to the receiver, to the two notes, and the articles of personal property admitted by the defendant, in his answer, to be in his possession or under his power and control. The vice chancellor also limited the examination of the defendant and of witnesses, before the master, to the specific property thus directed to be delivered over to the receiver. From that part of the order which contained such restriction and limitation the complainants appealed,

      C. P. Kirkland, for the appellants.

      Julius Rhoades, for the respondent.
   The Chancellor.

From the opinion of the vice chancellor in this case, it appears probable that he was misled by the supposed admission of the counsel for the complainants, that where there was an answer by the defendant in a creditor’s bill admitting the existence of certain property, but denying that there was any other, the receiver, as a general rule, was only to take into his possession the property thus- admitted to belong to the defendant; unless, upon special cause shown, the court should order other property to be taken into the possession of the receiver for the purpose of preserving it pending the litigation. If it was proper to restrict the order in this manner, as to the delivery of the property to the receiver, it follows of course that the examination of the defendant and of witnesses, before the master, must be limited in the same way. For the only object of the examination of the defendant or of a witness, in such a case, is to ascertain whether the defendant complies with the order of the court in delivering over his property to the receiver. Indeed, if the judgment debtor is only to be required to deliver over to the receiver such property as he admits by his answer to be within his power or control, the examination of himself or of any witness before the master would be an unmeaning ceremony, and would create unnecessary and entirely useless trouble and expense.

The proper form of the order in such a case was settled by this court in Hopkins v. Wemple and others, in October, 1838, upon appeal; which case, I believe, was not reported. There the vice chancellor had allowed an order, for the examination, as broad in its terms as that which is authorized, by the 191st rule of this court, where the defendant consents that his examination before the master shall be a substitute for the whole discovery sought for by the bill. But the order was modified so as to direct the judgment debtor to assign and deliver over to the receiver on oath, all his property, equitable interests, and things in action which he had at the time of the commencement of the suit, and which were in his possession or under his power or control; and he was required to submit to an examination before the master to the same extent. But this court decided in that case, as it had often before done, that the complainant had no right to examine the defendant as to matters which were not relevant to the subject of the reference, to wit, the assignment and delivery over of the property in his possession or under his control , although he might have been required to answer as to such matters, if charged in the bill, on an order of reference under the 191st rule. This also was in conformity with the opinions expressed in the cases of Fitzhugh v. Everingham, (6 Paige’s Rep. 30,) and of Gihon v. Albert & Shaw, (7 Idem, 278.) The object of the examination in such a case is not to obtain an answer to the bill, nor is it to elicit evidence to enable the complainant to sustain his suit; but merely to procure and compel a delivery to the receiver of all the property and effects, either legal or equitable, which the defendant has in his possession or in his power or control, to abide the final decree in the cause. The rights of the complainant to examine the defendant before the master as to such property, therefore, are the same, whether the defendant has answered the bill or has suffered it to be taken as confessed for want of an answer; except in the case of an examination as a substitute for an answer, under the provision of the 191st rule.

In the present case, the answer put in by the defendant on the same day the motion for a receiver was made, and where the complainants had no opportunity to except to the same for insufficiency, could only be used as an affidavit in opposition to the motion. And it has repeatedly been decided that the mere denial, by the defendant, that he has any property, is no answer to an application for the usual order to appoint a receiver in a creditor’s suit. The order in this case must therefore be modified accordingly.

But the complainant had no right to reach, by this bill, the compensation to which the judgment debtor might thereafter become entitled, under the laws of the United States, when he should have completed the census and made a return thereof to the marshal. In the case of Carr v. Kirby, which came before this court upon an appeal from a decision of the vice chancellor of the first circuit, and was decided here on the 7th of March, 1837, the complainant in a creditor’s suit was permitted to reach the salary of a school-master, which had been wholly and completely earned, by the performance of all the services required to entitle him to the same, before the filing of the bill; although by the terms of the agreement with his employers the salary was not payable until four days after-wards. In that case, the court decided that the quarter’s salary was an existing debt at the time of the filing of the bill, though payable in futuro. But in the subsequent case of Woodworth v. Gillespie, (In Ch. 7th May, 1839,) this court decided that a creditor’s bill could not reach a compensation to become due to the defendant at a future time, for the performance of services not yet completed, and where he would have no legal or equitable right to demand payment for the services performed at the time of filing of the bill, in case he should thereafter neglect to complete the services which had not then been rendered.

The present case comes directly within the principle of this last decision ; as the defendant Bettis would have no legal or equitable right to demand any compensation whatever for what he had already done towards taking the census, as an assistant to the marshal, if he should neglect to go on and complete his returns as directed by law. By the terms of the statute, under which Bettis was acting, he was required to post up copies of the schedules before he made his return to the marshal; and his compensation for his services in taking the census was made to depend upon the number of the persons returned by him. Until he had posted up such copies, and made his return of the census of his district to the marshal, he was not entitled to any compensation whatever for any thing he had previously done. The bill in this case, therefore, cannot reach the compensation to which Bettis may be entitled, if he completes the census as required by law. And by the provisions of the 195th rule, he will be entitled to receive such compensation and apply the same to the support of himself or his family, or to defray the expenses of this suit, notwithstanding the injunction ; as it is positively sworn, that the taking of the census was not completed at the time of the commencement of the suit. To prevent any possible doubt or misconstruction of the order appealed from, in this respect, it must be so modified as to exempt the compensation to which Bettis would be entitled for his services in taking the census, which had not been completed at the time of the commencement of this suit, from the operation of the order of assignment and from the injunction ; so that he may go on and earn such compensation, by completing the services, if any, which are yet to be performed in order to entitle to him to his pay.

As the mistake into which the vice chancellor fell in this case probably arose from the erroneous concessions of the counsel on both sides, as to the extent of the usual order for the delivery of the property to the receiver where an answer was put in, which necessarily led to a restriction of the right to examine the defendant and the witness to the same extent, it does not appear to be a proper case to charge the respondent with costs. No costs are therefore to be allowed to either party on this appeal. The order as modified is to be remitted to the vice chancellor and carried into effect in the court below.


text:
    Rose and others, appellants, vs. Clark, administrator, &c. respondent.

    The death of one of the next of kin of the intestate, within the time fixed by the revised statutes for calling the administrator to account, does not entitle the surviving next of kin of the intestate to the whole of the personal estate ; but the share of such deceased next of kin is vested, and belongs to his or her personal representative.
    Any mutual agreement between a man and woman to be husband and wife in pr&senti, especially if followed by cohabitation, constitutes a valid and binding marriage; where there is no legal disability on the part of either to contract matrimony.
    An actual marriage may be presumed from matrimonial cohabitation, and the acknowledgments of the parties that they are husband and wife. And oven where such matrimonial cohabitation commenced between the parties under a contract of marriage which was void, a subsequent marriage after the removal of the disability may be presumed, from acts of recognition by the parties of each other as husband and wife, and from continued matrimonial cohabitation, and general reputation.
    But the mere fact that a man and woman live together, and carry on an illicit intercousc, is not s-ifficient to raise a presumption that they are married. Such presumption only arises from matrimonial cohabitation; where the parties not only live together as husband and wife but also hold themselves out to the world as sustaining that honorable relation to each other.
    January 25.
    This was an appeal from a sentence or decree of the surrogate of the county of Rensselaer, declaring that Abigail Rose, the respondent’s intestate, the widow of John Rose deceased, became entitled to one third of his personal estate ; and decreeing payment thereof to the respondent as her personal representative.
    From the testimony in the case it appeared, that a little more than fifty years since, Abigail Rose, then Abigail Roberts, was married to Jonas Frink, at Hoosick, and that after living together a short time they separated ; that some time afterwards Frink married another woman and removed with her to the state of Massachusetts, and continued to reside with her there several years, and had children by her. Frink subsequently came back to Hoosick, and was in the poor-house there. He was at the city of Troy in 1830, and was taken to the house of industry, where he died on the 24th of October in that year. Some ten years after Mrs. Rose and her husband Frink had parted, she was living with J. Owens as his housekeeper. She was there married to S. Thurston, who left her the next day and never after claimed her as his wife. She afterwards continued to live with Owens as his wife, and passed by his name until his death, in March, 1826. Two or three years after Owens’ death she was married to Rose, at Stephentown, in the county of Rensselaer; and she and Rose resided and cohabited together. as husband and wife until the death of Rose, in January, 1838. Both of them sustained fair characters during that time ; and Rose frequently, after the death of Frink, recognized her as his wife. Among other acts of recognition, he joined with her, in February, 1831, in a deed of lands, in which she was described as his wife. It also appeared that she was recognized by the children of Rose as his wife, and their step-mother, down to the time of his death. The petition to the surrogate for letters of administration upon the estate of Rose, stated that he died leaving a widow; and her renunciation of the administration-as such widow - was filed with the surrogate, and letters of administration were thereupon granted to one of the sons, and E. Brown, another of the appellants. Mrs. Rose died shortly afterwards, and letters of administration on her estate were granted to the respondent, in April, 1839. The personal representatives of Rose, upon being indemnified by the next of kin, paid over the whole estate to them ; including the third thereof claimed by the representative of the widow. Upon these facts the surrogate decided that the marriage to Rose during the life of Frink was void ; but that the facts and circumstances proved were sufficient to warrant the inference of an actual marriage subsequent to the death of Frink, the first husband. He therefore dec-ided and decreed that she was entitled to one third of the personal estate at the time of her death, and that it belonged to the respondent as her personal representative ; and he ordered the administrators of Rose to pay the same to him, with interest and costs. From this decree the administrators and next of kin of Rose appealed to the chancellor.

      D. Gardner, for the appellants.
    No right could vest in Abigail Rose, until after or at the time of accounting fixed by the revised statutes. (2 R. S. 92, § 52; p. 95, § 70, 71; p. 94, § 63 to 65; p. 96, § 75, sub. 1, 4; p. 114, § 9.) Her right was like that of Schuyler, the husband, in the case of Schuyler and others v. Hoyle, (5 John. Ch. Rep. 196, 209, 210,) and not having been perfected, passed at her death to the next of kin of John Rose. (2 Kent’s Comm. 421, 422.) The personal property was legally in the administrators of Rose until account. (2 R. S. 87, § 25, 27; p. 447, § 1; p. 113, § 2, 3. 1 Cowp. Dig. B. 10, 466.) The marriage of John Rose and Abigail, as established by the witnesses, was ten or twelve years before January, 1840. As this was proved on the part of the administrator of Abigail, it excludes all presumption. All the witnesses agree that there was no new marriage. Clark, the administrator, is concluded from alleging any other than the marriage he proved as the basis of his right. (19 Wend. 319.) A subsequent marriage cannot be presumed. (Jackson v. Davis, 5 Cowen, 131, 132. Parker v. Foote, 19 Wend. 315, 316. Miller v. The Resolution, 2 Dall. 122.) After Abigail’s marriage with Solomon Thurston was proved, a prior marriage could not be proved with Frink, either by her or her administrator. (Rea v. Smith, 19 Wend. 295. Cro. Jac. 270. Doug. 450. Armstrong v. Toler, 11 Wheat. 261. Russell v. Rogers, 10 Wend. 478. Burt v. Place, 6 Cowen, 431. Best v. Strong, 2 Wend. 309, 326. Marbury v. Brooks, 7 Wheat. 567, 575, 578. 15 Wend. 311, 412, 416. Bolt v. Rogers, 3 Paige, 154. 2 Wheat. 153. 6 Paige, 108. 1 Maule & Selw. 751.) In Gaylord v. Van Loan,
      (15 Wend. 311,) the court say a “ man is estopped from averring or proving his own fraud.” Abigail’s marriage with Thurston being proved, she was estopped in pais from averring or proving that such marriage was a criminal act by proving her prior marriage with Frink. On this ground this proof was objected to. The proof of the prior marriage ought to have been rejected by the surrogate, and ought now to be rejected as illegal. This would leave Thurston, Abigail’s husband, living down to the death of John Rose, and would be conclusive. No presumption can be made of any second marriage with Rose, as the proof is against it. And no presumption of Abigail’s regard for law can be drawn from the facts, as she is proved to have married Thurston, Owens and Rose, while her first husband, Frink, was alive and known to be alive by her. And the testimony shows that she* concealed her prior marriage from Rose. The surrogate decreed Abigail’s marriage with John Rose void. As it is proved that no new marriage took place, the residue of the decree must be reversed.

      S. G. Huntington, for the respondent.
    The validity of the marriage of John Roste and wife cannot be brought in question ; both parties being dead. (2 Comyn’s Dig, 293. 2 Starkie’s Ev. 221.) The representatives of Abigail Rose were entitled to her d inbutive share, although she died within a year after her husband. (Toller’s Law of Ex’rs, 342, 386. 8 Petersd. Abr. 450. 1 Comyn’s Dig. tit. Administration, H. 2 Wn’s. Ex’r, 936,) Frink died the 24th of October, 1830, and the marriage of John Rose and Abigail took place subsequent to his death. This is proved by cohabitation and reputa tion and by the execution of the deed by Rose and wife to Smith, dated 25th of February, 1831, and by them duly acknowledged. (S Kent’s Com. 76, 87, 79, n. 2 W. Black. 377. 4 John. R. 52. 18 Id. 346, 350. 1 Edw. Ch. R. 377. 19 John. R. 347.) If the marriage took place sinc e 1830, it was valid until pronounced void by the chancellor. (2 R. S. 139, § 6. Id. 142, § 20. 6 Paige’s R. 210.) Abigail Rose, since the death of John Rose, has been treated and considered by the heirs and next of kin of Rose as his widow, by their applying to and obtaining from her a renunciation of her right to the administration of her husband’s estate. The administrators also treated her as the widow of Rose, by setting off to her as widow certain property, which by law belonged to her, and to which she was only entitled as such widow. The administrators, also, in their petition, verified by their oath, stated that Rose left her his widow him surviving. These several acts of the administrators and heirs and next of kin estop them from denying that she is the lawful widow of John Rose. The objection to the admissibility of the evidence to prove that Abigail Rose was the lawful wife of Jonas Frink at the time of her pretended marriage with Solomom Thurston was properly overruled, as it was to show the marriage with Thurston null and void.
   The Chancellor.

The appellants’ counsel insists, among other things, that by the death of Mrs. Rose, within the time fixed by the revised statutes for calling the administrators to account, the whple estate of her deceased husband went to his next of :kin. In this, however, the construction which the counsel supposes to be given to the first and fourth subdivisions c f the seventy-fifth section of the title of the revised statqtes relative to the duties of executors and administrators m rendering an account and in making distribution to thye next of kin, is clearly wrong. Although the statute allows to the administrators eighteen months after the death pf the intestate to get in the estate, pay the debts,, and prepare for a final settlement of their accounts., it was not intended to prevent the vesting of the distributive shares of the widow and next of kin in the meantime. The English statute of distributions contained a similar provision, that no distribution of the estate/ of the intestate should be made till after one year from, his death, (22 and 23 Charles 2d, ch. 10, § 8, 2 Evans’ Stat. 359.) Yet, within a very few years from the passing of that statute, in the case of The Earl of Winchelsea v. Norcliff, (1 Vern. Rep. 403,) the court of chancery decided that where a person entitled to a distributive share of the intestate’s estate died before distribution, and within the year, there was an interest vested ; and that his share should go to his executor or administrator. And such, I believe, has been the uniform construction of the statute of distributions ever since that decision. That the legislature in the recent revision did not intend to change the settled rule of law as to the time of the vesting of the distributive Shares Of the intestate’s personal estates, is also evident from the third, sixth, seventh and eighth subdivisions of this seventy-fifth section; which clearly refer to the death of the intestate, and not to the time when the distribution is actually required to be made. (2 R. S. 96.) The expression, if there be no widow,” in the fourth subdivision, must, therefore, be construed to relate to the time of the death of the intestate also ; so as to give her a vested interest in her distributive share of the estate, although she dies within the eighteen months allowed by the statute to the administrators to prepare for the settlement and distribution of such estate.

By the ancient common law of England, it seems that a marriage was invalid unless it was celebrated in facie ecclesice. Such was the decision in the case of Del Heith, decided in the beginning of the fourteenth century, (Easter Term, 34 Edw. 1;) the report of which case Sir Harris Nicolas has extracted from the Harlean Manuscript, No. 2117, fol. 339. (See Nicolas’ Adult. Bast. 31, 567.) And the decision in Foxcroft’s case, twenty-four years previous to that time, (Easter Term, 10 Edw. 1, 1 Roll. Ab. 359,) undoubtedly was placed upon the same ground ; and not upon any question of doubt as to the supposed husband being the real father of the child, as Lord Ch. J. Ellenborough and Lord Chancellor Eldon appear to have understood the decision in that case. (See King v. Luff, 8 East’s Rep. 299. Le Marchant’s preface to the Gardner Peerage case, 50. Nicolas’ Adult. Bast. 560.) The law on this subject, however, was unquestionably changed at •the reformation, if not before. For it is now a settled rule of the common law which was brought into this state by its first English settlers, and which was probably the same among the ancient protestant Dutch inhabitants, that any mutual agreement between the parties to be husband and wife in presentí, especially where it is followed by cohabitation, constitutes a Valid and binding marriage ; if there is no legal disability on the part of either to contract matrimony. (2 Kent’s Com. 87.)

The only real question in this case therefore is, whether the surrogate was authorized to infer that such a contract of marriage had been made, subsequent to the death of Frink, from the facts and circumstances which were in evidence before him. That an actual marriage may be inferred, in ordinary cases, from cohabitation, acknowledgements of the parties, &c. as well as by positive proof of the fact, there can be no room to doubt. (See Math. on Pres. Evid. 283, and cases there cited.) And the only doubt in this case arises from the proof of the fact that the matrimonial cohabitation between these parties commenced, previous to the death of the first husband, under a contract of marriage which was absolutely void previous to the revised statutes ; although neither of them may have known at that time that Frink was still living. (Valleau v. Vallean, 6 Paige’s Rep. 210.) It appears, however, from decisions in our own courts as well as in England, that a subsequent marriage may be inferred from acts of recognition, continued matrimonial cohabitation and general reputation ; even where the parties originally came together under a void contract of marriage. The case of Wilkinson v. Payne, (4 Durn. & East’s Rep. 468,) carried the doctrine of presumption to a very great length on the subject. There the marriage was absolutely void under the English marriage acts; for the husband, whose parents were dead, was under age at the time the ceremony was performed, and had no legal guardian to consent to the marriage. And when he afterwards became of age his wife was upon her death bed, and actually died in three weeks from, that time. But upon proof that the father of the wife, who was the defendant in that suit, and the rest of his family, had always treated them as husband and wife, Justice Grose, before whom the cause was tried, left it to the jury to presume a legal marriage after the husband was of age ; which they did. And the court of king’s bench refused to disturb their verdict. In Fenton v. Reed, (4 John. Rep. 52,) the question was, whether Mrs. Reed, the plaintiff in the suit before the justice’s court, was the widow of W. Reed; to whom she was married in 1792, upon the supposition that her first husband, who was then absent, was dead. It appeared by the evidence that the first husband returned soon after the marriage, and lived until June, -1800, when he died. But the wife continued to cohabit with Reed as her husband until his death, in 1806, and no solemnization of marriage was proved to have taken place between her and Reed subsequent to the death of the first husband. Yet the supreme court decided that the court below was authorized to presume a marriage subsequent to that time. The same principle of presumption was sustained by the supreme court in the subsequent case of Jackson v. Claw, (18 John. Rep. 346,) where the marriage took place while the first wife was living ; but where the matrimonial cohabitation continued for many years after she, from her continued absence, was presumed to be dead.

These cases I think fully sustain the decision of the surrogate in the case now under consideration. Here the parties lived together as husband and wife for more than seven years after the death of Frink, and sustained fair characters. The children also, who now contest the claim of the representatives of the widow, recognised her as the wife of the intestate, and called her mother; which they certainly would not have done if it had been understood in the neighborhood, or in the family, that her cohabitation with the father was meretricious ; as the intercouse with Owen some years previous probably was. The fact that she joined with the intestate in a conveyance of his land, subsequent to the death of Frink, for the purpose of barring her right of dower, is also a strong circumstance in favor of the presumption that both parties at that time considered themselves as husband and wife. And the intestate ever after-wards called her his wife when speaking of her to others. The administrators also recognised her as the widow of the decedent, both in their petition for administration and in the inventory of the estate. After all that had transpired previous to the death of the intestate, I think he would have been precluded from denying that she was his wife, in January, 1838 ; according to the cases of Hervey v. Hervey, (2 Wm. Black. Rep. 877,) and Purcell v. Purcell, (4 Hen. & Mumf. 507.) And if the evidence wus sufficient to raise the presumption of a legal marriage as to him, in his life time, it must necessarily be sufficient to entitle her representative to the widow’s portion of the estate, under the statute of distributions.

To guard against any misconstruction as to the principle of presumption adopted in this and other cases of the same character, it may be proper to say, that the mere fact of a man and woman’s living together and carrying on an illicit intercouse, is wholly insufficient to raise a legal presumption of marriage; as it too often happens that such cohabitation takes place when the intercourse between the parties is clearly meretricious. The presumption of marriage only arises from matrimonial cohabitation; where the parties not only live together as husband and wife, but hold themselves out to the world as sustaining that honorable relation to each other. The first kind of cohabitation, from which -no presumption of marriage arises, although the man, under particular circumstances, sometimes may have attempted to give to his mistress a different character from that which she in fact sustained towards him, is fully illustrated by the case of Cunningham v. Cunningham, in the house of lords, upon an appeal from Scotland, (2 Dow’s, Parl. Rep. 482.) In relation to that case it is only necessary to remark that I fully concur in the conclusion at which Lord Eldon and Lord Redesdale arrived, and in the reasoning upon which that conclusion was based ; and which are perfectly consistent with the decisions in the supreme court of this state to which I have referred.

The decree of the surrogate must, therefore, he affirmed with costs 5 and interest upon the amount decreed to be paid by the surrogate from the time of such decree, as damages for the delay and vexation caused by such appeal. (2 R. S. 618, § 35.) And if the amount decreed to be paid with costs and interest is not paid within the time prescribed by the order of the surrogate, the respondent is at liberty to have the decree of affirmance enrolled here, and to take out execution thereon.


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    Copous, executrix, &c. vs. Kauffman and others.
    "Upon a reference to a master, on a creditor’s bill, to appoint a receiver of the property and effects of the judgment debtor, and to examine witnesses as to such property and effects and as to other matters charged in the bill and not admitted by the answer of the defendant, the complainant cannot compel the wife of the defendant to submit to an examination, before the master, as fo such property and effects, or as to any other matter charged in the bill; although the husband is a lunatic and cannot himself be examined, or compelled to make a discovery of his property.
    The wife cannot be examined as a witness either for or against her husband in a civil suit. But she may be compelled to testify as a witness, in a suit between other persons, where the husband would himself be compelled to testify as a witness.
    Under the usual order for a reference to appoint a receiver, on a creditor’s bill, and directing the judgment debtor to deliver over his property and effects to such receiver, the only objects of authorising the examination of the defendant and of witnesses, before the master, arc to ascertain the nature and value of the defendant’s property, to enable the master to determine who would be a proper receiver thereof and the amount of security which such receiver should give, and to enable the complainant and the receiver to ascertain whether the order of the court is complied with, by the defendant, in delivering over the whole of his property. It is therefore erroneous to direct the examination of the defendant, or of witnesses, to any other matters charged in the complainant’s bill; except where such examination is intended as a substitute for an answer, in cases where the defendant has given a stipulation to that effect, as authorised by the 191st rule of the court.
    Where the complainant obtains an order for the appointment of a receiver of the property of a defendant, who is a lunatic and has put in an answer by his guardian ad litem, without any direction to the defendant to assign, or deliver over his property, the complainant is not authorised to call and examine witnesses, on the reference, after the receiver has been appointed, for the mere purpose of obtaining testimony to be afterwards used in the cause.
    Upon an appeal from an order of a vice chancellor, carrying into effect a previous interlocutory order which has not been appealed from, the appellant is not entitled to have the order appealed from reversed, upon the ground that the previous order, not appealed from by him was erroneous.
    If the property of a judgment debtor against whom an execution has been returned unsatisfied, is in the actual possession and control of his wife, un. der circumstances which render it impossible to reach and obtain possession thereof by a creditor’s bill filed against the husband alone, it seems a bill may be filed against her and her husband jointly, so as to obtain a decree which would reach the property in her hands and compel her to deliver it up for the satisfaction of the husband’s debts.
    Whether a creditor’s bill is a proper proceeding against a lunatic, after the return of an execution unsatisfied, to reach his property and have it applied in satisfaction of the judgment; Quere ?

    January 5.
    This was an appeal from an order of the vice chancellor of the first circuit, compelling the wife of C. H. Kauffman, a defendant in a creditor’s bill, to submit to an examination before the master to whom it was referred to appoint a receiver of her husband’s property, equitable interests and choses in action. It appeared from the affidavits that defendant Kauffman, the judgment debtor, was a lunatic at the time of filing the bill ; and that his wife was originally made a party defendant with him. That she demurred to the bill, which demurrer was allowed by the vice chancellor, and the bill, as to her, was dismissed with costs. A guardian ad litem having been appointed for the husband, he put in a general answer ; leaving the complainant to her proof of the matters stated in the bill. An order was afterwards obtained for the appointment of a receiver of the property and effects of the judgment debtor, by a master, and that upon such appointment being made by the master and confirmed, the receiver should be vested with all the property and effects of the defendant which belonged to him at the time of the filing of the complainant’s hill, or with so much thereof as would be sufficient to pay the debt and costs ; and that the complainant be at liberty to examine witnesses before the said master in reiation to the said property and effects ; and to the other matters charged in the bill of complaint and not admitted by the defendant, or his guardian ad litem. But the order omitted the ususal direction to the defendant to assign and deliver over his property and effects to the receiver on oath. A receiver was appointed accordingly, by the master, and his appointment was confirmed by the court. The complainant afterwards summoned the wife of the defendant before the master to be examined as a witness as to the property. But under the advice of the guardian ad litem for the defendant she refused to be examined ; the guardian ad litem insisting that she could not lawfully be examined as a witness against her husband, or in relation to his property which the complainant sought to reach in this suit. The vice chancellor, upon a subsequent application to him, made the order appealed from; which order directed that the wife, upon a summons for that purpose to be served upon the guardian ad litem of the husband, should attend before the master and submit to an examination in relation to the property and effects of her husband, and to the other matters charged in the bill, or that an attachment issue against her ; and that she pay the costs of the motion, &c. upon filing the master’s certificate of her neglect or refusal to attend and be examined. But if she should submit to such examination, that then the costs of the application should abide the event of the suit.

      C. Edwards, for the appellant.
    The receiver, after his appointment, alone can receive and collect the effects of the judgment debtor. The complainant’s duty is thus at an end. He is not to lend himself to what, in his hands, might be an harrasment. (Ryckman v. Parkins, 5 Paige, 543. Ray v. Macomb, 2 Edward’s V. C. Rep. 165.) A bill of discovery cannot be filed against a lunatic, for he cannot answer ; and if he cannot answer, no relief should be had where it can only be consequent upon a discovery. (New v. New, 6 Paige, 237.)

      A. feme covert cannot be examined on a receiver’s reference to discover property of the husband. The lunacy of the husband strengthens the objection to the examination of the wife as a witness. (5 Paige, 491.) Á wife will not be allowed as a witness where it can influence a decision for or against her husband. See Chancellor Walworth’s decision in The City Bank v. Bangs, (3 Paige, 36.) A wife could not have been examined against her insolvent husband, if the statute had not allowed it. The same remark applies to matters of bankruptcy in England, and even in the latter case, she cannot be examined beyond the very letter of the statute. (Ex parte James, 1 P. Wms. 610.) If the wife should, on an examination, be made to discover property to the amount of one hundred dollars, the husband would be subjected to a decree for costs. The mere liability to costs is a sufficient bar to her evidence. (Head v. Head, 3 Atk. 547.) The principles of evidence in a master’s office are the same as in open court. (Bennet’s Master, 10.) The appeal having been taken by the guardian ad litem, and as the point may be new and the acts in good faith, the order below should, at least, be varied as to the costs. (Attorney General v. Butcher, 4 Russ. 180.)

      A. Thompson, for respondent.
    The complainant asks not for this examination of the wife to establish any claim against the husband, but merely to show where her husband’s property is ; and which the bill charges that she has secreted, having the charge of her husband’s business during his incompetency. The testimony given on this examination cannot be used as evidence in the cause, it being only to enable us to point out to the receiver where the property is. This examination must be had, or there will be a total failure of justice in this cause. The husband, in consequence of his ignorance and incompetency of mind, is unable to answer as to the property ; and although we are able to prove that there is property that should be applied in payment of our debt, yet in consequence of the wife having secreted it, we cannot find where it is. (5 Vesey, 325.) Such examination will contravene no decision in law or equity. The English and American decisions are all based upon the principle, that the wife shall not, by her testimony, establish a claim against the husband. This question is nearly allied to cases of insolvency in our own state, (2 R. S. 37,) or proceedings in bankruptcy in England, where the wife is examined, There is no impropriety in the complainant taking proceedings to discover the defendant’s property (5 Paige, 543. 2 Edwards, 165. 6 Paige, 239.)
   The Chancellor.

The bill having been dismissed as to the wife of Kauffman, the judgment debtor, upon the allowance of her demurrer, the vice chancellor clearly had no right to order her to be examined as a party to the suit, over whom he had jurisdiction in that character. Indeed the order of reference only authorized the examination of witnesses before the master, as to the property and effects of the judgment debtor, and as to other matters charged in the bill. Even to that extent, the original order was erroneous in authorizing an examination relative to other matters charged in the bill. For the defendant had not consented to submit to an examination upon a reference to appoint a receiver, under the 191st rule, as a substitute for an answer. (Hopkins v. Wemple, ante, p. 571.) And the order itself contained no direction to the defendant to deliver over his property on oath or otherwise; so as to render it necessary to examine either parties or witnesses for the purpose of ascertaining whether that part of the usual order in such cases had been complied with by the defendant. The court never orders a reference in such a case for the mere purpose of authorizing the complainant to hold an inquisition to hunt up testimony, to be after-wards used in the cause, to enable him to collect his debt. Previous to the appointment of the receiver it might be necessary, for the purpose of the reference to examine witnesses as to the nature and extent of the defendant’s property ; for the purpose of enabling the master to decide who would be the proper person to be the receiver of such property, and the amount of the security which he was to give. But after that had been done, every legitimate object of the reference in this particular case would appear to have been accomplished, had not the order contained this further power to examine witnesses to prove the allegations in the complainant’s bill, that the defendant had property, &c. But as that order was not appealed from, the defendant cannot, upon the appeal from this subsequent order, insist that such an order was erroneous, and ought not to have been made. The only proper question for examination upon this appeal, therefore is, whether the wife of the defendant shall be examined as a witness against him under this order, to obtain a discovery of property, which may aid the complainant in obtaining a decree against him or his property.

If a creditor’s bill is a proper proceeding against a lunatic, to enable the judgment creditor to obtain satisfaction out of his estate, and the property is actually in the possession and under the control of his wife, so that the complainant would be entirely without remedy unless he could obtain a decree against her for the delivery of such property, I am not prepared to say that a bill in chancery might not be so framed as to reach that case. But I think the guardian ad litem of the husband, in this case, had a right to object that the wife should not be compelled to submit to an examination, as a witness, for the mere purpose of obtaining a discovery of her husband’s property. In any proceeding against a third person, by the receiver, in which the husband himself would not be disqualified or excused from giving testimony, on the ground of interest or otherwise, his wife may also be compelled to testify as a witness in the cause. But it is well settled that she cannot be a witness either for or against him in any civil suit to which he is a party. And he has a right to insist that she shall not be compelled to answer on oath, as a witness, for the mere purpose of aiding the proceedings of the complainant in such a suit against him. It is only necessary to refer to the decision of this court in the case of The City Bank v. Bangs and others, (3 Paige’s Rep. 36,) and the cases there cited, for the settled rule of law on this subject. Under the bankrupt and insolvent statutes, this principle of the common law has been dispensed with, to some extent; by express enactments requiring the wife to submit to an examination as to the situation and disposition of her husband’s property. But under those statutes the' husband receives a corresponding benefit, in being discharged from his debts upon delivering up his property for the. benefit of his creditors ; or at least he gets discharged from imprisonment for debt. If the common law rule on the subject requires a modification in other cases, it belongs to the legislature and not to the courts to give the proper relief.

The order appealed from must therefore be reversed; and the costs of the guardian ad litem of the defendant Kauffman, both upon the appeal and upon opposing the application before the vice chancellor, must be costs in the cause; to be paid to such guardian personally, if he succeeds in the defence of the lunatic in the suit.


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    The Trust and Fire Insurance Company vs. Jenkins and others.
    Where tho complainant, after answer, obtained a special order for leave to amend, and that the defendant should answer the amended bill within forty days after service of the amendments and a copy of the order, or that such amended bill be taken as confessed ; and the defendant, upon being applied to by the complainant’s solicitor, refused either to put in a further answer to tl?o amended bill, or to consent that his former answer should be considered as an answer to such amended bill, so as to enable the complainant to put tho cause at issue by filing a replication to the answer; Held, that the complainant was regular in entering an order to take tho amended bill as confessed, after the expiration of the forty days from the time of the service of the amendments and of the order to answer the same.
    If the complainant amends his bill after answer, the defendant has the right to put in a further answer to the amended bill, or even to make a new defence, if he thinks proper to do so ; although the complainant waives a further answer.
    But in case the complainant waives a further answer to the amended bill, and the amendment is merely formal, requiring no further answer to protect the rights of the defendant, costs of putting in a new or further answer will not be allowed. And if the defendant elects to put in an entirely new defence to the bill, in such a case, the costs thereof must abide the event of the suit.
    Where an amendment of the bill is made after answer, under a special order of the court, if the complainant intends to waive the necessity of a further answer to the amendments, the order itself should contain a recital of such waiver ; according to the English practice in such cases. And the order, in that ease, should direct the defendant to answer the amended bill within forty days after service of the amendments and of the order, or that his former answer stand as his answer to such amended bill.
    And where an amendment is made under a special order, if the complainant intends .to require a further answer, the order instead of waiving such answer, should contain the usual direction, that the defendant answer the bill as amended within the forty days, or that the same be taken as confessed, or, when a further discovery is necessary, that an attachment issue, &c.
    But where the bill is amended of course, after answer, without any order for that purpose, under the 43d rule of the court, if the complainant intends to waive a further answer to the amendments, he should, at the time of serving such amendments on the defendant’s solicitor, give to him a written notice that a further answer is waived, and that if he does not answer the amendments, within forty days, he will he considered as having elected that his former answer should stand as an answer to the bill as amended.
    "Upon an amendment of course after answer, where there is no order for leave to amend, and the complainant does not intend to waive a further answer, he may enter the usual, order of course, that the defendant answer the amended bill, within the forty days, or that it be taken as confessed ; or that an attachment issue, &c. as the case may be.
    Where a further answer to the amendments is properly waived, if the defendant does not, within the forty days, answer, plead, or demur to the amended bill, or obtain an extension of the time to answer, the answer already put in will stand as the answer to the amended bill. And the complainant must then reply to the same within the ten days, allowed by the 65th rule, or he will be precluded from replying to such answer.
    In all cases of amendment to a bill, the complainant may reply to the answer, within the usual time after the amended bill is deemed to be fully answered ; unless the court, in the order allowing him to amend, has deprived him of that right.
    Where the complainant amends his bill after answer, if a farther answer to the amended bill is not waived, the defendant must put in a further answer to the amendments ; or the complainant will be entitled to an order taking the whole bill, as amended, confessed.

      The case of Weaver v. Livingston, (Hopk. Rep. 595,) as to taking an amended bill as confessed after answer had been put in to the original bill, commented on and explained.
    January 25.
    This was an appeal from an order of the vice chancellor of the first circuit, setting aside the complainant’s order taking the bill as confessed against the defendant Andrews, and all subsequent proceedings thereon, for irregularity, with costs. After the defendant Andrews had perfected his answer to the bill, the complainants made a special application to the court upon notice, and with the consent of the solicitor of Andrews obtained an order for leave to amend their bill, fay making A. Palmer and the wife of the defendant Andrews, and any other person who might have succeeded to the right of Palmer, parties defendants, and also as they might be advised 3 and that the respective defendants should have forty days after service of the amendments and a copy of the order, to answer the bill as amended, and in default thereof that the bill be taken as confessed by the defendants respectively ; and that the complainants pay to the defendant, Andrews, the costs of opposing the motion, and also his taxed costs of putting in a further answer to the bill as amended, if he should be advised to put in such further answer, and that his wife be at liberty to put in a separate answer.
    The bill was amended accordingly, by making the wife of Andrews, A. Palmer, H. Warren and A. C. Clements parties defendants 3 and by making some few slight alterations in the bill as to the statements of the defendants’ rights as subsequent purchasers or otherwise, and in the prayer for relief. The amendments were duly served on the solicitor of Andrews, and the costs paid. Andrews neglected to put in a further answer to the amendment, or to give notice of his election to abide by his former answer, as his answer to the amended bill, so as to give the complainants a right to file a replication thereto 3 claiming the right to consider the cause as at issue upon bill and answer, upon his answer originally put in. He offered however to stipulate that the amendments merely might be taken as confessed for want of an answer thereto. The complainants’ solicitor being unable to get an answer to the amended hill, entered an order to take it as confessed . against Andrews ; and referring it to a master to compute the amount due.

      L. H. Sandford, for the appellants.

      P. Burrowes, for the respondent, Andrews.
   The Chancellor.

The affidavit on the part of the complainants shows that a replication to the answer of Andrew was necessary to enable them to bring the cause to a hearing upon its merits. The only question, therefore, was as to which party was technically right upon the point of practice. For where a party insists upon retaining a mere technical advantage of his adversary, if it turns out that he himself has mistaken the practice, and that the adverse party was in the right, the latter is of course entitled to his costs.

Where the complainant amends his bill after answer, the defendant has a right in all cases to put in a further answer, or even a new defence to the amended bill, if he thinks proper to do so. (Bolton v. Bolton, 1 Dan. Ch. Prac. 519. Savory v. Dyer, Amb. Rep. 70. Bosanquet v. Marsham, 4 Sim. Rep. 573. Gambier v. Leheup, 1 Dickens, 44. Richardson v. Richardson, 5 Paige’s Rep. 58.) But where the complainant waives the putting in of a further answer to the amended hill, the defendant will not, upon a mere formal amendment which in fact requires no further answer to protect his rights, be allowed costs of putting in a new answer to the amendments. And if he elects to put in an entirely new defence to the bill, in such a case, the costs of such new defence must abide the event of the suit. By the practice in England, where no amendment is allowed except upon a previous order, if the complainant is permitted to amend after the answer of the defendant is put in, the order itself shows that a further answer is waived ; in case he does not intend to require such answer. And in the late case of Boddington v. Woodley, (9 Simon’s Rep. 380,) where the complainant obtained an order to amend, without stating in such order that he did not require a farther answer to the amended bill, and after waiting the usual time for an answer filed his replication without taking out a subpoena to answer the amendments, the vice chancellor decided that the proceedings were irregular. And the defendant was allowed six weeks to answer the amended bill, although there was no affidavit on his part that a further answer was necessary to his defence. By the practice there, if the order to amend waives a further answer, the complainant must wait the usual time, to allow the defendant to answer gratis, before he is at liberty to file his replication. (Lloyd v. Lloyd, 2 Cox. Ch. Cas. 431.) And then if no answer, plea or demurrer to the amended bill has been put in, the defendant is considered as having elected to have his former answer stand as the answer to the bill as amended. After that the complainant must file his replication within the time allowed by the rules of the court for that purpose, or the defendant may apply to dismiss the bill for want of prosecution, as in other cases. But if the order for amendment requires a further answer to the amendments, the complainant takes out a subpoena for such further answer and then if the defendant does not put in his further answer within the time allowed by the rules of the court for that purpose, the whole bill as amended may be taken pro confesso, for want of a full and perfect answer thereto. (1 Daniel’s Ch. Prac. 509.)

At an early day, soon after the practice of taking bills as confessed without requiring proof thereof was first adopted, Lord King overruled a decision of Sir Joseph Jekyl, the master of the rolls, which allowed the whole bill to be taken as confessed for want of a further answer, (Hawkins v. Crook, 2 Peer Wms. 559.) But he in effect overruled his own decision in that case a few months afterwards, in Abergavenny v. Abergavenny, (2 Eq. Ca. Abr. 179; 4 Vin. Abr. 446, S. C.) Lord Hardwick also refused to be bound by the decision in Hawkins v. Crook, in the case of Davis v. Davis, which came before him in 1739. (2 Atk. Rep. 23.) He subsequently in effect, though not in terms, overruled it, in the case of Turner v. Turner. And in Bacon v. Griffith, which came before Lord Apsley in 1772, (4 Ves. 619, note,) where the master of the rolls allowed the amendments to the bill alone to be taken as confessed, the defendant having answered the original bill before amendment, his lordship reversed the order upon appeal; holding that the bill as amended was but one record, and that the amendments not being answered the bill was not answered. A similar decision was made by Lord Alvanley, in the case of Jopling v. Stewart, in 1799. (4 Ves. jr. 619.) This question has also been decided in the same way in a very recent case before the master of the rolls in Ireland. (See O’Grady v. Barry, Drury’s Digest for 1839, p. 80.) The case referred to by the vice chancellor from Hopkins’ Reports, does not conflict with these decisions as to the right of the complainant to have the whole bill taken as confessed for want of a full answer. For there the complainant’s counsel only asked for an order to take that part of the bill as confessed to which the exceptions related. And Chancellor Sanford, without examination of the question of practice, allowed him to adopt that course; as it could not injure the defendant to permit his answer to stand as an answer to the bill as far as it went. (Weaver v. Livingston, Hop. Rep. 595.) I think the vice chancellor misapplied the principle of that decision in the present case. For here the counsel for the complainant did not waive his right to a full answer to the amended bill. Although he was willing that the former answer should stand as an answer thereto, if the defendant would have consented to the same in such a manner as to authorize him to file his replication, as he would have had the right to do so in case his original order had waived an answer to the amendments.

By the present practice of this court, where the complañíant amends of course, he is, by the 43d rule, permitted to do so without entering any order for that putpose. In such case, if he intends to waive the necessity of a further answer to the amendments, as he cannot put such waiver in his order, he should, at the time he serves his amendments upon the defendant’s solicitor, give him a written notice that a further answer is waived ; and that if the defendant does not, within the forty days allowed to answer the amended bill, put in a further answer to the same, he will be considered as having elected to have his former answer stand as an answer to the bill as amended. Then, if the defendant does not plead, answer or demur to the amended bill within the usual time, or obtain an extension of the time to answer, the answer already put in will stand as the answer to the amended bill. And the complainant must then reply to the same within the ten days allowed by the 65th rule of the court, or he will be precluded from replying to the answer.

Upon an amendment of course after answer, where the complainant does not intend to waive the further answer to the amendments, he may enter the usual order, of course, in conformity with the principles of the 24th rule, that the defendant answer the amendments in forty days after service of a copy thereof, or that the bill as amended be taken as confessed ; or that an attachment may issue, as the case may be. But where an amendment is allowed by a special order of the court, after answer, then the order itself should contain the recital of such waiver of a further answer, according to the English practice ; and the defendant should be directed to answer the amendments within the forty days, or that his former answer should stand as the answer to the amended bill. Or, if an answer to the amendments is required, the order should contain the usual directions requiring the defendant to answer, or that the bill as amended be taken as confessed or where a further discovery is necessary, that an attachment may issue, See, In all cases of amendment, however, the complainant has a right to file a replication within the usual time after the amended bill is deemed to be fully answered, whether in fact a further answer is put in, or the defendant, upon the complainant’s waiver of a further answer, elects to let his original answer stand as an answer to the bill as amended j unless the order of the court allowing him to amend has in terms, or by necessary implication, deprived him of that right.

Here the order, which the parties had agreed upon, instead of waiving a further answer and directing the former answer to stand as an answer to the amended bill if the defendant should not elect to put in a new or further answer, was through inadvertence so drawn as to require the defendant to answer the amended bill, or that the same should be taken as confessed. The complainants, therefore, had no other course left, after the refusal of their adversary to consent to have the original answer stand as the answer to the bill as amended, with the usual right to reply to such answer, than to enter the order to take the bill as confessed. And the defendant’s counsel having insisted upon strict practice, for the purpose of getting another bill of costs out of the complainants, upon a motion for leave to file a replication, and it turning out that the defendant was himself in the wrong, the order setting aside the complainant’s proceedings for irregularity, and charging them with the costs, must be reversed with costs.

But as it is evident the solicitor for the defendant mistook the practice, his client must be relieved upon the usual terms of paying the costs of the proceedings which the complainants had regularly taken against him, and the costs of opposing his application. An order must therefore be entered, setting aside the order to take the bill as confessed and all subsequent proceedings thereon, and that the former answer stand as an answer to the amended bill, with the liberty to the complainants to reply thereto ; provided the defendant Andrews, within twenty days after service of a copy of the order to be entered hereon, pays to the complainant’s solicitors such costs, including their costs upon this appeal. But if such costs are not paid within the time prescribed, then the application of the defendant to open the default is to be denied with costs. And the proceedings are to be remitted to the vice chancellor.


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    Tone vs. Brace.
    Where a lessee was evicted upon a title paramount to that of the lessor, and the lessor after the eviction of the tenant sued him at. law for the recovery of the rent reserved in the lease; Held, that the mere fact of the removal of the lessor to another state, without any allegation that he was insolvent or irresponsible, was not of itself sufficient to authorize the tenant to file a bill in this court for an injunction, to restrain the proceeding at law to collect the rent, and to obtain an offset of unliquidated damages arising from a breach of covenant of warranty contained in the lease.
    It seems that the lessee, in such a case, is entitled, in the suit at law for the recovery of the rent, to recoup in damages to the extent of the injury sustained by the breach of (ho covenant for quiet enjoyment.
    Whether under the provisions of the revised statutes, relative to implied covenants in conveyances of real estate, the word demise, in a lease for a term merely, implies a covenant on the part, of the lessor, of quiet enjoyment of the demised premises by the tenant; Quaere ?

    January 25.
    This was an appeal from an order of the vice chancellor of the eighth circuit, dissolving an injunction. The defendant Brace, who was the owner of a farm in the county of Genesee, demised and leased the same to the complainant Tone, for five years from the first of April, 1837, at an annual rent of $>550, payable on the first of January in each year during the continuance of the term; with the privilege of sowing on the farm an out-going crop of wheat, not exceeding fifty acres, and of removing or harvesting such crop notwithstanding the five years had expired. The complainant paid the rent for the two first years; and in the fall of the third year he put in a crop of forty-three acres of wheat, which was growing upon the land at the time of his eviction as hereafter mentioned. At the time of the giving of the lease there was a mortgage upon the farm, which was afterwards foreclosed in chancery ; and a few days after the rent for the third year became due, Tone, the lessee, was evicted by a decree of that court, under a sale by a master ; the rent for that year being then due and unpaid. Brace, the lessor, who had in the mean time left the state and removed to Michigan, afterwards commenced a suit in the supreme court to recover that rent; notwithstanding the complainant had, as alleged by him in his bill, sustained a loss by reason of the eviction of at least five hundred dollars, exclusive of the damages he would sustain by being deprived of the privilege of putting in the out-going crop, according to the terms of the lease. Those damages would, as the complainant averred, amount to at least three hundred dollars more. Upon a bill stating these facts, and also stating that the lessor was insolvent, an injunction was granted staying him from proceeding at law to enforce the payment of the third year’s rent. Upon the corning in of the defendant’s answer, denying that he was insolvent, the vice chancellor dissolved the injunction.

      J. V. L. Pruyn, for the appellant.

      E. Darwin Smith, for the respondent.
   The Chancellor.

Two objections are made to the complainant’s right to an injunction in this suit : First, that there were no covenants in the lease which gave to the lessee any legal or equitable claim upon the lessor for the damages which the former had sustained in consequence of the eviction ; and Secondly, that if the defendant was liable for such damages, the complainant had a perfect remedy at law. If either of these objections is well taken, it is sufficient to sustain the order of the vice chancellor dissolving the injunction.

It is not seriously contended by the respondent’s counsel that the word demise, in a lease for years, was not sufficient at the common law to raise an implied covenant of warranty as to the quiet enjoyment of the demised premises ; not only against the lessor himself but also as against all others claiming by paramount title. (See Platt on Cov. 47; Barney v. Keith, 4 Wend. 502.) But he insists that the 140th section of the article of the revised statutes relative to alienation by deed, (1 R. 8. 738,) has changed this principle of the common law, as well in relation to leases for terms of years as in deeds which purport to convey a freehold estate in real property. That section declares that no covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not.” The word real estate in this section is sufficient to embrace an interest in land less than a freehold. (1 R. S. 750, § 10.) And the supreme court has decided that this provision of the revised statutes extends to implied covenants in leases for years, as well as in conveyances for life or in fee. (Kinney v. Watts, 14 Wend. Rep. 38.) Were it not for that decision, I certainly should have doubted whether the word conveyance, in the connection in which it is found in that article of the revised statutes, was intended to embrace mere chattel interests in land, or contracts between landlord and tenant; so as to exclude the implied warranty on the part of the landlord for the quiet enjoyment of the demised premises by the tenant, and the implied covenant of the latter to pay the rent reserved in the lease. And as the demised premises in the case of Kinney v. Watts were situated in New-Jersey, I do not see how this provision in the revised statutes of the state of New-York could be made applicable to the implied covenant of warranty in that lease ¡ even if it appeared from the declaration that the lease upon which the suit was-brought was executed here. It is not necessary, however, in this case, to enquire whether the proper construction has been put upon the word conveyance, in this section of the revised statutes, by the supreme court; for I think the order appealed from must be affirmed upon the ground that the complainant, if he had any claim against the defendant on his lease, had a perfect remedy at law.

The recent case of Ives & McCarty v. Van Epps & Shattuck, in the supreme court, (22 Wend. Rep. 155,) appears to go the length of allowing the lessee who has sustained damages by a breach of the contract on the part of the lessor, to recoupe in damages, to that extent, in the action brought by the lessor upon the covenant for the non-payment of rent. But whether he could or could not have made such a defence in this case, the fact that the lessor has removed to another state, the allegation of insolvency being fully denied by the answer, is not a sufficient ground for an injunction to restrain the lessor from proceeding at law to collect his rent, if any is due. The insolvency of the plaintiff in a suit at law may sometimes make it the duty of this court to interfere and compel an equitable set-off which could not be made at law ; especially where the claim to a set-off arises out of the same transaction. But if the plaintiff in the suit at law is perfectly responsible, so that an ample remedy exists against him by a cross-action, there is no equitable principle which makes it the duty of this court to assume the jurisdiction of matters that can be better tried before a jury in a court of law. In Murray v. Tolland & Mead, (3 John. Ch. Rep. 569,) one of my predecessors in this court refused to interfere, although the defendant against whom the set-off was claimed by the complainant resided in Spain. And if the fact that the party was out of the United States was not a sufficient ground for the interference of this court in that case, the residence of Brace in one of our sister states was not alone sufficient to sustain the injunction, upon this bill and answer.

The order appealed from is therefore affirmed with costs.


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    More and others vs. Smedburgh and others.
    Where by the terms of an executory agreement for the sale and purchase of lands, the vendee was entitled to the immediate possession of the property, the first payment for which was to be made in part by his obtaining an assignment of a judgment which a third person held against the vendor, after which the deed was to be given and the judgment cancelled, and the residue of the first instalment paid; Held, that the vendor was entitled to a reasonable time after he had notice of objections to his title, to clear off the incumbrances and to procure the necessary certificate to show that the property was unincumbered ; also Held, that under the cireumstanccs of the case, three weeks was not an unreasonable time for that purpose.
    A greater degree of vigilance is required on the part of the vendor in perfecting the title to the purchaser, where the latter is not in possession of the property purchased, than is required from him where the vendee is in possession under the contract.
    Where, in a contract for the sale of land, a day is fixed for the conveyance of the property, if the vendee wishes to object to the title he must give notice of his objections a reasonable time previous to the day fixed for making the conveyance, to enable the vendor to remove the objections to the title and to make the conveyance at the time specified, or a court of equity may consider a strict performance of the contract by a conveyance on the specified day, as waived. And where the vendor has not been guilty of gross negligence in perfecting his title, equity may decree a specific performance, upon a bill filed by him, although the title was not perfected on the specified day; unless the time of perfecting the title is by the terms of the contract made an essential part of the agreement.
    Where the vendee has entered into possession of the premises under an exec, utory agreement for the purchase of the same, if he wishes to rescind the contract, on the ground that the vendor has not perfected his title to the premises and executed a conveyance thereof within a reasonable time, or at the time specified in the agreement, he must give up the possession to the vendor; as he cannot elect to rescind the contract and still continue in possession of the premises under it.
    Whether a contract for the sale of land, belonging to a copartnership, signed by one partner in behalf of himself and his copartner, can be enforced against the purchaser, who has also signed the contract, under the provis. ions of the revised statutes relative to such contracts; Quare?

    January 25.
    This was an appeal from a decree of the vice chancellor of the fourth circuit, dismissing the complainants bill with costs. The bill was filed against W. F. Brackney in his life time, for the purpose of compelling the specific performance of a contract made by bim for the purchase of a tannery and other lands connected therewith, in the county of Déla vare, in December, 1886. Smedburgh was made a party defendant, as the assignee of a judgment against the complainants, which had previously been purchased by Brackney, to be applied in part payment of the premises according to the terms of the contract with them ; and to restrain Smedburgh from proceeding to collect such judgment. The cause was heard upon pleadings and proofs before the vice chancellor. W. F . Brackney having died subsequent to the decree of dismissal of the bill, and pending this appeal, the cause was duly revived against his personal representative, and against those who had succeeded to the equitable rights of his father in the premises as heir at law ; the father having also died pending the appeal and before the suit was revived,
    S. Stevens, for the appellants.
    The contract to convey was obligatory and binding upon all the complainants. (Martin v. Mitchell, 2 Jac. & Walker, 426, 427.) The defendants cannot now object that the contract was not signed by all the complainants. If the contract had only been signed by the vendee, he having gone into possession, the court would decree a ¡performance against him at the suit of the vendors. (Idem.) Time was not “ of the essence of this contract.” The principle to be extracted from the authorities is, that two things are necessary to make time of the essence of the contract. First. There must be a particular time specified in the contract for its performance. Second. The performance of the contract at or by the time specified, must constitute the main, or an important ingredient in, or inducement to, the purchase.
    The agreement in question was made the 15th December, 1836, and no time is specified in which the complainants were to execute the conveyance. The complainants tendered a full performance on their part within a reasonable time. The vendor is entitled to a reasonable time to extinguish incumbrances. (5 Paige’s Rep. 410, 411.) There has been no failure of performance on the part of the vendors ; but if there had been, still a specific performance would be decreed; as time was not made of the essence of the contract. Where the vendee is in possession, and the vendor without any positive fault has omitted, or from the state of the title has been unable to comply with his covenant, still a specific performance will be decreed in his favor, where time is not of the essence of the contract. (Craig v. Martin, 3 J. J. Marsh. Rep. 54. Ramsay v. Brailsford, 2 Dessausure, 582.) A specific performance will be decreed against a vendee who has gone into possession, although the vendor has not performed or been able to perform on his part, provided he is able to give a title at the time of the hearing. The judgment purchased by Smedburgh should be decreed to be satisfied of record, and the amount thereof applied in payment of so much of the price of the premises, according to the agreement. Smedburgh purchased the judgment with a full knowledge of all the facts.

      A. L. Jordan, for the respondents.
    The contract was not mutually binding. It was not binding on the complainants Samuel Moore and Andrew Moore, because it was executed by Robert L. only without their assent. (Martin v. Mitchel, 2 Jac. & Walk. 426. Lawrenson v. Butler, 1 Sch. & Lef. 13.) The complainants failed to perform on their part. There was no precise day fixed by the contract on which it was to be fulfilled. It was in law, therefore, to be fulfilled within a reasonable time. The only uncertainty is, as to what was that reasonable time. It might be said unhesitatingly that two days was within reasonable time, and that two years was not within reasonable time, and yet the precise limit might not be settled without some difficulty. The rule adopted by the vice chancellor is as good a one as the mind can arrive at ; “A reasonable time is such a period as would be required by persons of ordinary business talents and habits to accomplish the duties which the respective parties had to perform.” Time was of the essence of the contract. Time may be made of the essence of the contract by express stipulation, as that the thing shall be performed on a particular day, and none other, or any other apt words, shewing the intention of the parties to that effect. Time is of the essence of the contract in all cases where it is, in any substantial degree, material to the rights and interest of the parties. Any less comprehensive definition would be absurd. Time was here material to the defendants’interests ; the property was unsaleable until he had a title. (Lewis v. Lord Lechmere, 10 Mod. 503. 2 Eq. Cas. Ab. 689. Spurnier v. Hancock, 4 Ves. 667. Hannington v. Wheeler, 4 Ves. 686.
      Loyd v. Collett, 4 Bro. Ch. Cas. 469. Benedict v. Lynch, 1 J. C. 374. Waters v. Travis, 9 J. R. 450. Thompson v. Todd, 1 Peters, 380. Pratt v. Carroll, 8 Cranch, 471.) The defendant could not enjoy the property without extensive repairs, and the time of year for making those repairs had passed by, after he demanded his deed, and before he finally rescinded the contract; and during all that time the premises remained encumbered, greatly beyond their value, and there was no reasonable assurance that the complainants would fulfill for months to come. Time is always material, or becomes so,, when either party chooses to make it so. When either party calls for fulfillment, the other is not at liberty to disregard the call; if he does, the contract may be abandoned. Taking possession where, as in the present case, it was a part of the contract that the vendee should take immediate possession, proves nothing. This is according to the decision in Ramsay v. Brailsford, (2 Dessaus. 582.) And where the plaintiff has failed, and especially if any injury has accrued to the defendant, specific performance will not be decreed. In the present case the premises were dilapidated and could not be enjoyed at all without great expenditure in repairs, and that no man of prudence would have laid out, having no title, and the premises being encumbered to several times their value. (Fonblanque, Book 1, ch. 6, § 2, last ed. p. 282. Guest v. Hornfray, 5 Ves. 818.)
   The Chancellor.

I fully concur in the very able opinion of the vice chancellor, as to the impolicy of permitting the vendor, in an executory contract for the sale of lands, to insist upon a specific performance after the purchaser has actually relinquished the contract in consequence of the neglect of the former to comply with the conditions thereof on his part. But I think the circumstances of the present case were such as to take it out of the general principles laid down by him. The pleadings and proofs in this case, as well as the contract itself, show that the parties did not contemplate an immediate conveyance of the property; although as to the possession of the premises sold, and the stopping of the interest on the judgment, the contract was to take effect immediately. The purchase of the judgment of the Catskill Bank was undoubtedly to be made by Brackney without any unnecessary delay ; and such purchase was accordingly made by him about two weeks after the making of the contract with the complainants. The terms of the agreement, however, show that neither party contemplated the giving of a deed for the premises immediately after the judgment was obtained from the bank. For there was an express provision that after Brackney had purchased the judgment he should hold it until he obtained a conveyance from the complainants ; and then should cancel the same, and pay the balance of the first instalment of the purchase money. And that Brackney himself did not understand that the whole agreement was to be consummated as soon as the judgment of the Catskill Bank was procured by him, is evident from the fact that he did not perform the wdiole of his part of the agreement until the middle of September, 1837. He then, for the first time, caused the premises to be insured, according to the terms of the agreement apparently ; but probably for the express purpose of getting rid of the contract, by demanding an immediate execution thereof, when he knew the incumbrances could not be removed, and the evidence thereof procured for two or three weeks thereafter. Even where a day has been fixed by the contract for the execution of the deed, if the purchaser does not make his objections to the title in time to enable the vendor to remove them before the day fixed, equity may consider a strict performance at the day as waived. (Jones v. Pice, 3 Anst. 924.) And in such cases also, if the vendor has not been guilty of gross negligence, equity will assist him, although the title was not made at the day, unless by the terms of the agreement, the time of making the title was made an essential part of the agreement. (Fordyce v. Ford, 4 Bro. C. C. 494. Radcliffe v. Warrington, 13 Ves. jun. 323.) But in the present case, as no time was fixed for the giving of the deed and the purchaser had asked for an extension of the time for the payment of the balance of the first instalment, which would become due immediately upon the execution of the deed, the complainants were entitled to a reasonable time after the application of Mr. Jordan, and his objection to the title on account of the outstanding incumbrances, to clear the premises and to produce the necessary certificates that such incumbrances were discharged, before the purchaser was authorized to repudiate the contract. And as the title was made perfect within three weeks from that time, which was not an unreasonable delay, I think the purchaser was bound, according to the settled principles of this court in similar cases, to go on and complete his purchase.

Again ; the purchaser, in case he elected to rescind the contract, was bound to give up the possession of the property which he had entered into the possession of under that agreement. And he was not at liberty to say to the vendors, after he had occupied the premises nine months without paying any thing therefor, “ our contract is at an end, but I shall continue to occupy the tannery until I shall have no further use for it for tanning the hides I have now on hand.” Here the answer insists upon a rescisión of the contract before the complainants had cleared off the incumbrances and tendered the conveyance, on the 12th of October, 1837, and yet it is admitted, in the same answer, that Brackney the purchaser was in the occupation of the tannery when that answer was put in, on the 16th of January, 1838.

There is unquestionably a distinction in the rule of vigilance required on the part of the vendor where the purchaser has been kept out of the enjoyment of the property by the neglect of the former to proceed and complete the sale ; as it would be contrary to equity to compel the purchaser, who was not in possession of the estate which he had agreed to buy, to wait an unreasonable length of time for the vendor to make out a title. What, therefore, would be a reasonable time in reference to a purchaser in possession, would not always be so as to one who was not.

As a general rule, if a vendor receives payment of a part of the purchase money after the time of payment fixed by the terms of the agreement has expired, or if the vendee continues in possession under the agreement long after the time specified therein for giving the deed, a court of equity may consider a strict performance at the day as waived. And the party who has thus waived a literal performance of the terms of the agreement, will not afterwards be permitted to insist upon a forfeiture, without notice to the other party and giving him a reasonable time to perform on his part. (See Harris v. Troup and others, ante, p. 423.) In the present case I am satisfied it would be inequitable to permit the purchaser to rescind the contract upon such slight grounds as are attempted to be set up in the defence, after having enjoyed the use of this valuable property so long for nothing; and that a specific performance of the contract should have been decreed.

The objection that the contract was only signed by one of the complainants, in the name of the firm, cannot be sustained.- Under the English statute of frauds it was only necessary that the agreement should be signed by the party against whom the same was sought to be enforced, to enable the other party to maintain a suit thereon either at law or in equity. (See 1 Sugd. on Vend. 160, 10th Lond. ed., and cases there cited; Laythoarp v. Bryant, 2 Bing. N. C. 735; Field v. Boland, 1 Drury & Walsh, 37.) Whether an agreement signed by one partner in behalf of himself and his copartners would be a valid agreement as against the purchaser under our present statute of frauds, which requires the contract to be signed by the party by whom the sale is to be made, it is not necessary now to consider. For the delivery of the possession of the premises under the contract took the case out of the statute of frauds, even if the agreement had not been reduced to writing; and brought the case within the exception contained in the 10th section of the statute. (2 R. S. 135.)

The decree appealed from must therefore be reversed, and there must be a decree for a specific performance against the present defendants, with costs. But the decree must be so drawn, that the administrator and heirs shall not be personally charged beyond the amount of property which has come to their hands by the decedent, and for which they are legally liable to the creditors in the due course of administration, under the provisions of the revised statutes. And if the premises are not paid for by the administrator and heirs, after applying the bank judgment in part payment of the purchase money according to the terms of the contract, the decree may authorize a sale of the premises to satisfy the amount remaining due, together with the costs.

Smedburgh having taken the assignment of the bank judgment with a full knowledge of the complainant’s equitable right, under the contract, to have it cancelled and applied in part payment of the purchase money, he must be decreed to cancel the judgment. And he must be perpetually enjoined from proceeding to enforce the collection of the same, either in the name of the bank or otherwise; but the decree is to be without prejudice to any claim he may have against the estate of Brackney the assignor. As the expense of the litigation has not probably been increased by his joining with Brackney in the defence, and as he was originally a mere security for the latter, to the bank, I do not think it proper to charge him personally with the complainant’s costs.

Decree accordingly,

       Affirmed on appeal to the court for the correction of errors, December, 1841.