text:
    Cushman vs. Brown and Betts.
    1837. July 18.
    A counsel who signs a scandalous or impertinent pleading is personally answerable for the costs of the proceedings to expunge the scandalous or impertinent matter; and an unsuccessful attempt to collect such costs from the party for whom sucii pleading was put in will not discharge the counsel from liability.
    The answer in this cause, which was put in by the de-" fendant Brown, was excepted to as scandalous and impertinent ; and upon a reference of the exceptions the same were allowed, and an order was thereupon made to expunge the impertinent matter, with costs. The defendant having neglected to pay the costs upon the exceptions, was committed, and being unable to pay the same, remained in prison. The counsel who signed the answer was called upon to pay such costs, but he declined paying the same. The complainant, upon an affidavit of these facts and due notice of the application to the counsel who signed the answer, moved for an order that he should pay the costs upon the exceptions.

      J. Rhoades, for the complainant.

      M. Hoffman, for the counsel of Brown.
   The Chancellor.

It is the settled law of the court that the counsel who signs the answer in such a case as this is> liable for the costs. (Powell v. Kane, 3 Paige’s Rep. 265.) And the fact stated in the affidavit of the solicitor in this case, that the counsel signed the answer without fee or reward, merely as his friend, at his request, and without reading the same, furnishes no answer whatever to this application. One principal object in requiring the signature of counsel to a bill or answer in this court is, that the court may have the security of a counsellor’s certificate that the pleading is not scandalous or impertinent. And it is improper for a counsellor to put his official signature to a pleading which he has never read, and with the contents of which he is ignorant. If he puts his signature to an answer without reward, as a mere act of friendship for the solicitor, and such answer contains scandalous or impertinent matter so as to subject him to costs or to the censure of the court, he must look to the solicitor for his indemnity so far as mere pecuniary loss is concerned. The attempt to collect the costs from the defendant himself in the first instance was for the benefit of the counsel whose signature was to the answer; and that attempt having failed, the latter is not discharged from his liability.

The counsel must pay the costs as taxed, within thirty days, together with the costs of this application.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Clason vs. Clason and others.
    1837. July 18.
    Where C. died in 1815, and previous to his death devised to his three sons, W., I. and A., and the survivors and survivor of them, the rents and profits of his real estate for the term of 20 years after bis decease, to be divided equally between his said sons and the survivor of them; and if any one should die before the expiration of the 20 years, leaving a lawful child or children, such child or children to receive such portion of the rents and profits as would have belonged to the father if living; and after the expiration of the said term of 20 years, C. gave and devised such real estate to his said three sons, their heirs and assigns forever, equally to be divided between them ; and if any son should die before a division of the estate, leaving a lawful child or children, such child or children to receive such portion of the estate as the father would have been entitled to if living; and if either son should die before such division without leaving children him surviving, the portion of such son so dying should belong to the survivor or survivors, their heirs and assigns forever. And W., one of the sons, died in 1824, leaving children; and in 1820,1., another of' the sons, conveyed all his interest in the premises to E. L., from whom such interest passed by conveyance to the third son A., and I. died after the expiration of the 20 years, but before any division of the property; Held, that if I. had died before the expiration of the 20 years without leaving issue, one half of his share would, under the will, have belonged to the children ofW., and the remaining half would have belonged to A.; but that at the expiration of the 20 years, one third of the property became absolutely vested in possession in I., who was then living, and before any actual decision of the same; and that as the remainder devised to I. was vested in interest at the time of the conveyance to E. L. as a conditional fee, the title to the same became absolute, under that conveyance, at the expiration of the 20 years.
    "Where an estate is actually vested in a devisee who is the natural object of the testator’s bounty, the court will not favour a construction of the will which will have the efi'ect of divesting the estate,
    in deciding whether a sale is necessary in a partition suit, the true question for the consideration of the master is whether the aggregate value of the several parcels into which the whole premises must be divided will, when distributed among the different parties in severalty, be materially less than the value of the same property if owned by one person.
    This case came before the court upon exceptions to the master’s report as to the title and interests of the parties in a suit for the partition of a farm in Westchester county; and also upon an exception to that part of the report which related to the necessity of a sale instead of making an actual partition of the farm. The premises contained about 370 acres of land, and were, according to the master’s report, worth $75,000 ; although they only produced an annual income of $1500. The farm was claimed and held under the will of Isaac Clason, who owned the premises in fee, and who died on the 1st of March, 1815. He devised the premises to his three sons, subject to a contingent charge upon the rents and profits in favor of their mother and to her legal right of dower, in the following words: “ I give, devise and bequeath to my three sons, William Jones Clason, Isaac Starr Clason and Augustus Washington Clason, and the survivors and survivor of them the rents, issues and profits of all my real estate in the county of Westchester for the term of 20 years after my decease, subject to the claims of my said wife as herein before stated; the said rents, issues and profits to be divided equally between my said sons and the survivor of them. And if any of my said sons shall die before the expiration of the said term of 20 years, leaving a lawful child or children, such child or children shall be entitled to and receive such portion of the said rents, issues and profits as would have belonged to his, her or their father if living. And after the expiration of the said term of 20 years, I give, devise and bequeath all my real estate in the county of Westchester to my said three sons, their heirs and assigns, forever, equally to be divided between them. And if any of my said sons shall die before a •division shall be made, leaving a lawful child or children, such child or children shall be entitled to and receive such portion of the said estate as his, her or their father would have been entitled to if living; and if any of my said sons shall die before such division shall be made, without leaving any lawful child or children him or them surviving, the portion of such son or sons so dying shall belong to the survivors or survivor of my said three sons, their or his heirs and assigns forever.” W. J. Classon, one of the sons, died in 1824, leaving three infant children, one of whom died in 1825. The other two, William Oscar and Josephine, were defendants in this suit; and by their guardian ad litem claimed one half of the premises under this clause of the will of their’ grandfather. In April, 1820, Isaac Starr Clason, another of the sons, conveyed all his interest in the premises to E. Lockwood, by an ordinary deed without warranty, under whom, by divers mesne conveyances, the complainant, at the time of filing his bill in this cause, claimed I. S. Clason’s undivided third of the premises. The bill was filed nine days after the expiration of the 20 years from the death of the testator, and I. S. Clason, who died five days thereafter, was made a party defendant; probably for the purpose of having the question decided whether his contingent interest in the premises could be released before the expiration of the twenty years. The suit was proceeded in without reviving it against the heirs at law of I. S. Clason. Upon the reference as to title, the master reported that the complainant was the owner of two tMrds of the premises, and that the two infant defendants, the surviving children of W. J„ Clason, were entitled to the other third. The guardian ad litem of the infant defendants excepted to the report in this respect, as well as to the decision of the master that a sale was necessary.

      Geo. Wood, for the complainant.

      S. A. Foot, for the infant defendants.
   The Chancellor.

There is no question as to the com» plainant’s right to one third of the premises under the will of his father, or as to the infant defendants’ right to another third. It is insisted, however, in behalf of the infant defendants that by the true construction of the will of their grandfather there was an executory devise in their favor of the one half of the share of their uncle Isaac Starr Clason, who died without issue before a division of the premises was made.

I think it is very evident from the whole of this will taken together, that it was the intention of the testator that if one of Ms sons died without issue after another had died who had children then surviving, such children should have the proportion of that share of the estate which their father would have taken if he had then been living The doubt which has arisen in this case is owing to the transposition of the two sections of that clause of the will which disposes of the Westchester property after the expiration of the twenty years. The first section of this clause declared, in terms, that the children of a deceased son should be entitled to and receive such portion of the estate as their father would have been entitled to if living. And if this had followed the section which gave the share of a son who died without issue to the survivor or survivors of the three sons, instead of preceding it, the intention would have been apparent and without doubt. It is perfectly clear from the whole will, that the testator did not intend to die intestate as to any part of the Westchester property; and yet, upon the construction contended for by the complainant’s counsel, if two of the sons had died leaving issue, and then the third son had died within the 20 years without issue, an event by no means improbable, the children of the two brothers who first died would neither of them have taken that share of the esttae under this executory devise, but the same must have gone to all the heirs of the testator generally. The previous clause of the will, in which the rents and profits of the Same property are devised to the three sons, or their children, for the first 20 years, may very properly be referred to for the purpose of ascertaining the testator’s intention in this succeeding clause which disposes of the ultimate fee in the estate itself after the expiration of the 20 years. And under such previous clause, had I. S. Clason died within the 20 years but subsequent to the death of the father of these infant defendants, they would unquestionably have been entitled to an equal share with their surviving uncle in the rents and profits during the residue of the term of 20 years. It becomes necessary, therefore, to inquire whether the ultimate remainder in fee in one third of the Westchester property became absolutely vested in possession in I. S. Clason at the end of the 20 years from the death of the testator, or whether such ultimate fee remained in abeyance until an actual division or partition of the farm should be made.

There can be no doubt in this case that the remainder in fee was vesteddn 1.8. Clason 14 days previous to his death, emu that if he had not legally disposed of his interest previous to the 1st of March, 1835, he might then have made an actual partition or division so as to have put his absolute and indefeasible right to the inheritance beyond all doubt. And where an estate is actually vested in a devisee who is the natural object of the testator’s bounty, the court ought not to favor a construction of the will which would have the effect of divesting the estate without any apparent object on the part of the donor. Here the testator shows a very clear intention to prevent his sons from having the absolute control of this part of his property for the first 20 years from his death. For such a suspension of the power of alienation it is obvious that many good reasons might have existed in the mind of the testator; as in another part of the will a division of the residuary personal estate was postponed till 1820, when and not till then it was tobe divided among the three sons or their legal representatives. But when the time should have arrived when he intended to give to his three sons or their children the absolute control of the Westchester property, with the right to divide it among themselves immediately, I cannot conceive any possible motive that he could have had in making an executory limitation which would prevent them from granting a perfect title to a stranger, by a conveyance of the farm without an actual partition. And Lord Eldon, who was counsel for the complainants in the case of Hutcheon v. Mannington, (1 Vesey, jun. 366,) although he thought the decision was against the manifest intention of the testator in that particular case, as to which I think he was right, yet he admits it is an authority for saying that an intention of divesting the estate shall not be imputed to the testator in such a case, if the language used by him in his will admits of any other reasonable construction. (See 11 Ves. 497.) In the present case I think the will admits of a construction which leaves it doubtful at least whether the testator really intended to suspend the absolute power of alienation, after the expiration of 20 years, until an actual partition should be made. He evidently intended to prevent a division of the real estate for 20 years, as he had that of the personal property for a shorter period ; and he probably contemplated a division of the one as he had actually directed of the other at the end of the prescribed term.

The conclusion at which I have arrived on this part of the case is that the limitation over to the survivors or survivor of the three sons or to their children in case of the death of either without issue before a division should be made, was not intended by the testator to refer to an actual division of the estate after the twenty years should have elapsed, but to the time itself which had been prescribed by him when a division could be made according to the terms of the will. I. S. Clason, previous to his death, was therefore seized of an absolute and indefeasible estate of inheritance in one third of the premises which would have descended to all his brothers and sisters or their descendants, as his heirs at law, if it had not been previously conveyed. And as this remainder was vested in interest at the time of the conveyance to Lockwood in 1820, as a conditional fee, the title to the same passed under that deed; and is now in the complainant by virtue of the subsequent conveyances stated in the bill and in the master’s report. The first exception must for this reason be overruled.

Upon the subject matter of the other exception, however, I think the master has come to a wrong • conclusion. A farm containing 370 acres of land must be very peculiarly situated to render it impracticable to divide it into three parts without great prejudice to the owners; especially where the court may decree a pecuniary compensation to be made by one party to the others for owelty of partition. (See 2 R. S. 330, § 83.) The question is not as supposed by the master, whether it would be for the benefit of the infants to have their shares of the estate converted into money instead of remaining in land producing a less income. For if it is for their interest to sell their shares for the purpose of a better investment, it may be done afterwards under the general law relative to the sale of infants’ estates; and when they will not run the risk of having their interest in a large property sacrificed for want of funds to compete with their adult tenant in common at the sale. The true question to be decided by the master, under the statute, is whether the whole property, taken together, xvill be greatly injured or diminished in value if separated into three parts, in the hands of three different persons, according to their several rights or interests in the whole: in other words, xvhether the aggregate value of the several parts when held by different individuals in severalty would be materially less than the whole value of the property if owned by one person. In this case, .if the value of the land in different parts of the tract is nearly the same, the complainant would have a farm of about 250 acres for his share and worth $50,000, and each of the infant defendants would have a little more than sixty acres and worth about one fourth of that sum. And if some portions of the land are much more valuable than others, a greater quantity of that which is least valuable might be set off for the shares of the defendants, so as to increase the size of their farms. But if a sale is to take place under a decree in partition, as the guardian ad litem has no funds to enable him to bid upon the property for the infants, this property which is stated by the master to be worth $75,000 may be sacrificed for half that amount, unless the decree should contain special directions to the master not to sell it beloxv a certain specified amount.

The second exception is therefore allowed. And the costs of both parties upon the exceptions are to be costs in the cause, to be apportioned upon the final decree.

         The decision of the chancellor upon the construction of the will in this case was affirmed by the court for the correction of errors in December, 1837.


text:
    Crosby and wife vs. Wendell and others.
    1837. July 18.
    Where a testator declared it to be his will that his wife should continue to reside with his children in his dwelling house and retain in her possession the plate, furniture, &c. during her widowhood, if his children should continue to live with her; and in case of her re-marriage, and his children should not continue to live with her, that ahe should deliver the plate, furniture, &c. to his executors for the use of bis children ; and that the executors should receive the rents and income of his estate until the youngest child should attain the age of fourteen, and should apply so much thereof as should be necessary for the support of his minor children ; and that from and immediately after the youngest child attained the age of fourteen years, if his wife should then have married, he devised the dwelling house to his son Philip in fee ; and devised all the residue of his estate to bis children as tenants in common; Held, that the wife took an estate in the dwelling house to continue after the youngest child arrived at the age of fourteen if she then remained unmarried and the children lived with her; and that Philip took a vested remainder in fee in the dwelling house after the youngest child became fourteen, to commence in possession so soon thereafter as the wife’s estate should have terminated, by her marriage or otherwise ; and that such remainder to him was not intended by the testator to be limited upon the contingency of the widow’s having married a second time before the youngest child arrived at the age of fourteen:
    Tfie intention of the testator is the polar star to guide in the construction of a will; which intention does not depend upon any particular clause standing by itself, but is to be gathered from the whole will taken together. And where the testator’s intention is manifest it must prevail, if it is not contrary to some positive or settled rule of law ; although it may be necessary, in order to give effect to such intention, to depart from the literal meaning or the strict grammatical construction of the words used by the testator.
    The bill in this case was filed for the partition of certain real estate in the city of Albany; and the only question in dispute between the parties was whether, upon the construction of the Will of Philip Wendell, their father, his son Philip, the defendant, was entitled to the lot on the south side of State-street, in which the testator resided at the time of making his will, as the sole devisee thereof in fee. By the will the testator devised a part of his real estate to his widow, for life, in lieu of dower. He also declared it to be his will that his wife should continue to reside with his children in the dwelling house in State-street, and retain in her possession the plate, furniture, bedding, &c. during the time she remained his widow, if his children should continue to live with her. And in case of her re-marriage, or his children should not continue to live with her, she was to deliver the plate, furniture, bedding, &c. to the executors, for the use of the children. He authorized his executors to receive the rents and income of the residue of his estate, real and personal, until his youngest child should attain the age of fourteen ; and to apply the same, or so much thereof as should be necessary, for the support and maintenance of such of his children as should be under the age of twenty-one. By the fourth clause of the will, under which the question in this cause arose, he devised to his son Philip the State-street house, in the following words: “ From and immediately after the youngest of my children shall have attained the age of fourteen years, if my wife Sarah shall then have married, I give and devise the house and lot of ground in which I now reside, situate, lying and being south of and fronting State-street in the city of Albany, to my son Philip : to hold the same to my son Philip, his heirs and assigns forever.” He then devised and bequeathed all the rest and residue of his estate to his children as tenants in common in fee from and immediately after the youngest of his children should attain the age of fourteen years. The widow of the testator survived him more than twenty years, and died without having married a second time. And the complainants claimed a share of the State-street' house, on the ground that as the marriage of the widow had not taken place before the youngest child became fourteen, the devise to the testator’s son-Philip, in the fourth clause of the will, had failed.

      J. Williams & O. Allen, for the complainants.
    The devise to Philip is conditional, and depends upon a condition subsequent—the marriage of his mother ; and if that contingency had happened, the time of possession depended upon another event—the arrival of the testator’s youngest child at fourteen. The same principles which apply to legacies apply to devises. If a contingent legacy be left to any one, as token he attains, or if he attains the age of 21, and he dies before that time, it is a lapsed legacy. (2 Black. Comm. 513.) But a legacy to one, to be paid when he attains the age of 21 years, is a vested legacy—an interest which commences in presentí although it be solvendum in futuro; (3 T. R. 41;) and if the legatee dies before that age, his represenatives shall receive it out of the testator’s personal estate, at the same time that it would have been payable in case the legatee had lived. (2 P. Wms. 478. 3 Bro. 105. 3 Bro. 404. 6 Ves. jun. 43.) A contingent remainder is when an estate is limited to take place in futuro, upon an uncertain event; as when a particular estate which supports a remainder may or may not determine before the remainder may commence. (Jac. Law Dict. Contingent Use. 10 Rep. 85. Costa v. Keir, 3 Russ. 360, 5. 1 Russ. 260, 519, 262.)

      L. H. Palmer, for the defendant.
    By the fair construction of the particular devise in question, and especially of the whole will in connection, the devise was a present vested gift, limited as to the time of its enjoyment in possession, and subject to the devise to the wife of the testator; and there are not any grounds or reasons apparent either from the will itself, the circumstances of the family or the devisees named in the will, to infer that the devise was conditional or contingent. Words, apparently words of condition or contingency, are frequently construed to designate only the time at which the interest shall take effect in possession, though standing alone they import a condition. (Lane v. Goudge, 9 Ves. 229. Hanson v. Graham, 6 Ves. 239. Branstrom v. Wilkinson, 7 Ves. and references. West v. Eresy Barable, 1 Bro. P. C. 225, Toml. ed. Finley v. King's lessee, 3 Peter’s U. S. Rep. 346.) The word “when” in a will, alone and unqualified, is conditional, but may be controlled by expressions so as only to postpone payment or possession, but not the vesting of the legacy. (Goodtitle v. Whitby, 1 Burr. 228. Hatch v. Mills, 1 Edw. 342, and notes.) There is a distinction between the cases where time is annexed to the substance of the legacy and where the bequest is in

      dependent of the time mentioned, and payment is only deferred. (O’Dell v. Crone, 3 Dow P. C. 61. Goodtitle v. Whitby, 1 Burr. 48.) Although from the words of the devise the intention appears plain and clearly expressed, yet the apparent intention of the whole will will overrule it. So words importing condition in themselves will be construed words of qualification or limitation of the time when the estate or devise is to be enjoyed. In the construction of wills, one clause is not to be construed by itself nor by another, but all the clauses are to be considered together as making a whole and the “intention” is to be drawn from the whole; and each clause is to be qualified, enlarged or modified in accordance with the scope and intention of the whole. “ Where the whole property is devised, and a particular interest given out of it, it operates by way of exception out of the absolute property. Where an absolute property is given, and a particular interest given in the meantime, as until the devisee shall come of age, then to him, &c. the rule is that that shall not operate as a condition precedent but as a description of the time when the remainderman is to take possession.” (Richards v. Baker, 2 Atk. 322. Fonereaux v. Foncreaux, 3 Ves. 645.) To effectuate the intention of the testator, words may be rejected, or transposed, or substituted. (Boon v. Caneforth, 2 Ves. 278.) And nonsensical or expletive words may be rejected or transposed so as to give effect to intention. (Wilson v. Mount, 3 Ves. 194.) A videlicit shall be rejected, if repugnant i not, if it can be reconciled and made restrictive. (Dodson v. Hog, id. 404.) Where the testator expresses his intention “ incorrectly f the court will effectuate it by supplying the proper words. (Brownsward v. Edwards, 2 Ves. 248.) Words may be supplied. (Attorney General v. Bagley, 2 Bro. C. C. 553.) “ Dying without issue” may be construed by the context to mean “ children,” and so the remainder over will not be too remote. (Letheulleir v. Tracy, 3 Atk. 781,797.) Where the general intent is plain, it shall prevail, though, some of the “ limitations” may seem contingent. (East v. Cook, 2 Ves. 32.) Order of words may be disregarded. (Duke of Marlebro' v. Ld. Godolphin, id. 74.) That words may be transposed or rejected, See Marshall v. Hopkins, 15 East, 309 ; Doe v. Jessup, 12 id. 288; Doe v. Cotton, id. 515 ; Doe v. Provost, 4 John. R.61. And words repugnant may be stricken out and substituted for each other.
   The Chancellor.

The words used by the testator in this case in limiting the remainder in fee to his son Philip in the State-street house and lot, after the arrival of the youngest child at the age of fourteen, seem to import a contingency; and that it was not the intention of the testator to give Philip the remainder in fee if his mother should not then have re-married. Such would probably be the legal construction if this clause of the will stood alone and was to be Construed without reference to the particular es-tates which are created in this house and lot by other parts of the will. But when the whole will is taken together, there can be no reasonable doubt that it was the testator’s intention to give to Philip the remainder in fee absolutely, after the termination of the particular estates by the mar-' riage or death of the widow and the expiration of the time during wdiich the rents and profits of the property not devised to the widow were appropriated for the maintenance and support of the minor children. That which seems to be a contingency or condition upon which the remainder in fee is to. vest in interest is therefore a mere inaccuracy of expression ; and was only intended by the testator to denote the time when such remainder was to vest in possession. In, other words, the expression “ if my wife Sarah shall then have married,” was merely designed by the testator to exclude a conclusion that he intended his son should have an estate in possession in the State-street house and lot before the expiration of the time for which the use of it had been given to his wife by the previous clause of the will; that is, during the continuance of her life or widowhood, if her children chose to live there with her so long. The case of Brown v. Cutter, (T. Raym. Rep. 427, 2 Show. 152, S. C.) is substantially the same as the present. In that case the testator devised the estate to his wife for life if she did not marry; but if she married, then he devised the estate immediately to his son Humphrey in tail male, with remainder over to his other sons if Humphrey died without issue. The wife of the testator died unmarried 5 and the question arose between the second son of Humphrey and the daughter of his eldest son, whether Humphrey took an estate in fee after the death of his mother, as heir at law of the testator, or an testate in tail male under the devise. And the court of king’s bench decided that the wife took an estate during her life or widowhood ; and that Humphrey took an estate tail in remainder, to vest in possession upon the death or marriage of his mother. The like decision was made upon the same will, in the court of common pleas, two or three years after-wards, in the case of Luxford v. Cheeke, (3 Lev. 125.)

The intention of the testator is the pole star to guide in the construction of a will; and that intention is not to be ascertained by any particular clause standing by itself, but is to be gathered from the Whole Will taken together. And where the intention is manifest, if the same is not contrary to some positive or settled rule of law, it must prevail; although to give effect to such intention it may be necessary to depart from the literal meaning or the strict grammatical construction of the words which the testator has used to express his intention. Here the general intention of the testator was to give his wife the use of the State-street house during her life or widowhood, if her children chose to remain with her, even after the youngest child had arrived at the age of fourteen. And he intended that his son Philip should have the house and lot after the youngest child was fourteen, so soon as her estate durante viduitate therein should have terminated by marriage or otherwise. The same may likewise be said of the testator’s intention as regards the devise to Philip of this" house and lot, and of the other property to all the children, from and immediately ■after the youngest child should arrive at the age of fourteen. He did not intend to make it a condition precedent to the vesting of the estate in either case, that the youngest child should absolutely arrive at the age of fourteen. But inasmuch as the estate was devised to the executors until that time for the support of the minor children, he intended to exclude the idea that the remainders in fee should vest in possession in any of the children during the existence of the particular estate limited to the executors. He evidently intended, however, that they should take estates in possession as soon as the particular estate previously granted should have determined. And it does not become material to inquire whether that estate determined by the death of the youngest child a few days after that of the testator, or at the time when the youngest child living attained the age of fourteen.

Philip Wendell is, therefore, the sole owner of the State-street house and lot; and the complainant’s bill, so far as it seeks a partition thereof, or any account of the rents and profits received by him, must be dismissed.


text:
    The Mohawk Bridge Company vs. The Utica & Schenectady Rail Road Company.
    The words “ commencing at or near the city of Schenectady, and running thence on the north side of the Mohawk river,” &c. in the charter of the Utica and Schenectady Rail Road Company, authorized the company to commence their rail road at some point on the north side of the river, near the city, or at some suitable point on the south side at or within the city and then to cross the river to the north side thereof, at their election; the middle of the river forming the north bounds of the city. The right 60 build a bridge, for the purpose of crossing the river with their railways, was therefore granted to the company by the act for its incorporation.
    The building of a bridge across the Mohawk river at the city of Schenectady by the rail road company, and the transportation of passengers across the river on such bridge in the rail road cars, in the ordinary course of business of conveying travellers upon the rail road, is not an infringement of the chartered rights of the Mohawk Bridge Company.
    The grant to a corporation of "the right to erect a toll bridge across a river, without any restriction as to the right of the legislature to grant a similar privilege to others, does not deprive a future legislature of the power to authorize the erection of another toll bridge across the same river so near to the first as to divert a part of the travel which would have crossed the river on the first bridge if the last had not been erected.
    Grants of exclusive privileges, being in derogation of public rights belonging to the state, or to its citizens generally, must be construed strictly, and with reference to the intent and particnlar objects of the grant.

      1837. July 18.
    The court of chancery has jurisdiction to interfere by injunction to prevent the erection of a nuisance which will produce serious or irreparable damage. And if the thing sought lo be prohibited is clearly a nuisance, and the complainant’s right is not doubted, the court will grant an injunction without waiting the result of a trial at law.
    But where the thing sought to be restrained is not in itself a nuisance, but only something which may, according to circumstances, prove to be so, the court will not interfere until the matter has been tried at law.
    Where the magnitude of the injury to be dreaded from the noxious erection is great, and the risk so imminent that no prudent man would think of incurring it, the court will not refuse its aid for the protection of the complainant’s rights, by injunction, on the ground of a bare possibility that the anticipated injury from such erection may not happen.
    This was an application for an injunction, by the Mo% hawk Bridge Company and 24 others, to restrain the defendants from erecting a bridge for the passage of their railway across the Mohawk river at the city of Schenectady. The Mohawk Bridge Company were the owners of a toll bridge across the river about one hundred rods above where the defendants had commenced and were proceeding to erect their bridge for the passage of their rail road cars, locomotive engines and passengers on their railway; and the other complainants were land owners adjoining the river. The Mohawk Bridge Company alleged in the bill that the proposed erection would endanger the safety of their bridge by damming up the ice at the breaking up of the river; and also that the carrying of passengers across the river in the rail road cars would be a damage to the bridge company, by diverting the travel from their toll bridge; and would for that reason be an injurious interference with the exclusive privilege secured by their charter. On the part of the ether complainants it was alleged that the erection of the proposed bridge would expose their lands adjoining the river to great injury at the breaking up of the ice in the spring. And all the complainants insisted that the rail road corporation was not authorized by its charter to erect a bridge, or to cross the river with its railway. On the part of the defendants, affidavits of engineers and others were introduced for the purpose of showing that no danger was to be apprehended from the erection of the bridge in the manner in which it had been commenced, and according to the plan upon which the defendants proposed and intended to construct such bridge. .

      J. M’Kown & D. D. Barnard, for the complainants.
    The erection of piers in the Mohawk river, as the defendants are proceeding to do, would endanger the security and existence of the bridge belonging to the bridge company, and place the lands of the other complainants in hazard of being periodically or occasionally overflowed, and the soil and buildings of being removed and rendered useless or greatly injured. The imminent danger to the property of the complainants from the contemplated acts of the rail road com- . pany is a sufficient ground arid reason' for arresting and restraining those acts unless that company can make out a clear right in law and justice to proceed as they threaten to do, (4 Paige’s Rep. 169. 18 Ves. 515. 9 Idem, 617. Eden Inj. 167, 8. 7 John. Ch. 332. 2 Dow. P. R. 519. 1 Ves. sen. 188.) The anticipated injury to the bridge and to the soil and buildings of the complainants would produce such great and irremediable mischief as damages could not compensate, because the mischief would reach to the very substance and value of thé property, and would go to the destructiori of it in the character in which it is enjoyed. (7 John. Ch. Rep. 332.) The erection of a new bridge, as threatened by the defendants, by which travel would be passed over the Mohawk at that point without paying toll to the bridge company, would be a direct interruption and invasion of the right of the bridge company to receive tolls according to its charter. (5 John. Ch. Rep. 110. 4 Idem, 160.) The defendants’ act of incorporation does not on a fair construction give to the rail road company authority to construct a bridge over the Mohawk river where it is threatened to be done, and without this act the defendants have no pretence of authority for so doing. (17 John. R. 203.) If the defendants’ act of incorporation does purport to give authority to construct such bridge, yet this court will restrain the exercise of that power. (20 John. Rep. 105, 744. 12 Pick. 184, 467. 7 Cranch, 164.) 1. Because the act so construed, if executed, would violate the spirit of the constitution of this state and the law of natural right and justice by authorizing an injurious disturbance of the right and enjoyment of private property without any legislativc provision for compensation. (2 John. Ch. Rep. 168, 463. Cooper’s Eq. Rep. 77. 6 Crunch, 134, 5, 6, 7. 17 John. Rep. 203. 12 Pick. 482.) 2. Because the act so construed, if executed, would be in direct violation of the contract between the state and the bridge company, under which the bridge company arc entitled to receive tolls for travel over the Mohawk by way of their bridge. The complainants have a clear and certain title to the property described in the bill, and are and have long been in peaceable possession thereof. The defendants set up no title to that property or any part of it, but only a claim of right to disturb the complainants in their enjoyment of it under the authority of a legislative act. It is not necessary, therefore, that the complainants should have their title established at law, and this court will judge of the validity of the authority set up by the defendants as their justification, and finding that authority insufficient, the chancellor will protect the' complainants by injunction before answer. (9 John, Rep. 587.) A statute privilege, when in actual possession and exercise, will not be permitted to be disturbed until the opponent has fairly tried the right at law and overthrown the possessor’s pretension. When such disturbance is attempted an injunction will be granted before answer. (2 Paige’s Rep. 116. 9 John. Rep. 507. I Paige’s Rep. 447.) A private corporation is liable to answer in this court to a bill by individuals or by another corporation in all cases of actual or threatened injury to private property, or to rights or franchises, where one natural person would be liable to answer to another natural person. And the case presented by this bill is within the jurisdiction of this court and proper for the exercise of its powers. The act incorporating the Utica and Schenectady Rail Road Company does not contemplate any interference with the franchise of the Mohawk Bridge Company. The latter company have an exclusive right to convey passengers across the river. This right extends one mile above and one mile below the bridge. The grant to the Mohawk Bridge Company extends to the ordinary business of the country and to all vehicles for the conveyance of passengers and freight, whether of new or old invention. And this grant is exclusive. The prohibition against the erection of ferries, extends to bridges. Every grant is necessarily exclusive of all injurious competition. The defendants are attempting to exercise a franchise not granted to them. The right of building a bridge is a separate franchise, and requires a special grant. _ No private citizen without authority from the legislature can build a bridge over a navigable river. The act incorpórating the defendants-does not authorize the extension of their road into the city of Schenectady. The word at is exclusive in its meaning when used in statutes and grants. And the 9th section of the defendants’ act of incorporation applies only to small streams, and not to the Mohawk river. And this act is void for want of proper provisions to make compensation to the owners of property taken or injured. Here is an attempt to take property without rendering compensation. (18 John. Rep. 397. 10 Idem, 389. 1 Mass. Rep. 9. 1 Wm. Blak. 20.)

      A. C. Paige & M. T. Reynolds, for the defendants.
    The affidavits on the part of the defendants- show that there is no danger of irreparable and permanent injury to the low lands and bridge of the complainants. There being no such danger, all that part of the bill charging danger of irreparable injury is to be déemed as stricken out, which will leave nothing but the claim of the exclusive right of the Mohawk Bridge Company to convey passengers across the Mohawk river at Schenectady. The misjoinder of the complainants and the misjoinder of causes or grounds of relief is an objection to this motion. There is not such a common interest between the complainants as to authorise them to unite as complainants in one suit. And clearly they cannot join in one bill the charge of danger of irreparable injury with a charge of an interference by defendants with the pretended exclusive right of the Mohawk Bridge Company, as in the latter question the owners of the low lands, who are joined as complainants, have no interest whatever. The bill is defective in not alleging that the Mohawk Bridge Company have kept and sustained their bridge as required by their charter, and have always kept the same in repair so as fully to accommodate the public and to afford a passage with ordinary convenience and safety. This is a condition precedent to the enjoyment of any exclusive right. If the Mohawk Bridge Company had by express grant the exclusive right of transporting passengers across the Mohawk river, and did not or could not fully accommodate the public, the legislature could authorize additional accommodations to be provided to supply the deficiency. (Per Morton, J., and Wilde, J., in 7 Pick. 448, 457, and 475 ; and per Parker, J., Id. 512, 516 to 522.) And the legislature is the sole judge of what accommodations the public necessities and convenience require. (7 Pick. 466, 475, 6, 7. 2 Kent’s Comm. 340. See also 1 Ves. sen. 476 ; 5 John. Rep. 110; 7 Pick. 513, 14 and 16 ; 6 Barn. & Cres. 365 ; 7 Id. 547.) The case shows that the Mohawk Bridge Company cannot accommodate the rail road trains. A preliminary injunction before answer rests in the discretion of the court, and will not be granted unless the injury is pressing and delay dangerous, and the complainants’ right is indisputable, (2 John. Ch. Rep. 202,463. 9 John. Rep. 507. 1 Paige’s Rep. 97. 1 Ves. sen. 476.) But the Mohawk Bridge Company have no such exclusive right as is claimed. It is not expressly given. It is claimed under the clause prohibiting ferries. In governmental grants nothing can be taken by implication. (7 Pick. 519, 461. 2 Black. Comm. 347. 3 Caines, 293.) There is a distinction between privileges implied and those necessary to the enjoyment of the grant. Here the exclusive right is not necessary to the enjoyment of the grant. Exclusive privileges cannot be extended by implication. (2 Paige’s Rep. 116. 7 Pick. 464, 469, 521, 2 Cowen, 419. 4 Mass. Rep. 145, 473.) If the Mohawk Bridge Company possessed such exclusive right, it would be confined to travelling in ordinary vehicles and would not extend to rail road conveyances. If the Mohawk Bridge Company have sustained consequential damages, this does not entitle that company to compensation. (7 Pick. 472,473,520, 1 Id. 418. 12 Mass. R. 220.) The defendants have a right to extend their road to the compact part of the city of Schenectady and to erect a bridge across the Mohawk river. A bridge is essential to the enjoyment of their grant. The right, therefore, to eréct it can be implied. (10 John. Rep. 389. 15 Id. 358.) But the right of the defendants to extend their road across the river into the city of Schenectady is expressly granted. The word at used in their act of incorporation means in. And the 9th sec. of the act expressly authorizes streams to be crossed. The word streams includes the Mohawk river. (Bac. Ab. 380, tit. Stat. L. 2.) But as the defendants own the land on both sides of the river, they may without a grant erect a bridge for their own use, provided they do .not interfere with the public right of passage on the river with boats, &c. and do not exercise the franchise of taking tolls. (5 Cowen, 528. 20 John. Rep. 90. 10 Id. 236. 5 Wend. 443.)
    If the defendants’ bridge is not a private, nuisance to the Mohawk Bridge Company, the latter company cannot file a bill against the defendants. And if the nuisance is a public one, the Mohawk Bridge Company cannot obtain an injunction unless they show a special legal injury to such company. (6 John. Ch. 439.) The bill in this case prays for an injunction against the erection and not the use of the bridge. A. preliminary injunction will not be granted against an act which, unless followed up, can do no injury. (10 Pick. 273. 6 Idem, 376. 1 Fowler’s Eq. Pr. 157.)
   The Chancellor.

Being satisfied upon, the hearing of this application that a preliminary injunction ought not to be granted, I have delayed the decision to give the Mohawk Bridge Company an opportunity, if they thought proper, to try the question in a suit at law against the defendants, whether .the carrying of passengers across the river in the rail road Cars, on their way to different places op the line of the road, was an infringement of the charter of the bridge company, as. alleged in the bill in this cause. But perceiving from the published reports of the proceedings of the legislature that the important questions raised upon the argument are considered as still before me for decision upon the present application, I shall proceed to dispose of the case • . . . upon its merits, without reference to the particular form in which some of those questions were brought before me.

The first and most important question raised upon the argument relates to the right of the defendants to erect a bridge and cross the river with their rail way, under the act incorporating the rail road company. The first section of the act, (Laws of 1833, p. 462,) gives power to the corporation to construct a rail road or way commencing at or near the city of Schenectady, and running thence on the north side of the Mohawk river as far as the village of Herkimer, and terminating in the city of Utica. And the ninth section provides that whenever it shall be necessary to intersect or cross any stream of water or any road or highway lying betwixt the places specified in the first section, it shall be lawful for the corporation to construct the rail road or ways across or upon the same. Under a similar provision in the act to incorporate the Rensselaer and Sara-toga Rail Road Company, the supreme court and this court have both decided that the corporation had a right to erect a bridge upon piers for the purpose of carrying their rail ways across a navigable river, between the places prescribed for the commencement and termination of the road; subject to the condition prescribed in the act, that the usefulness of the stream should not be impaired thereby, (The People v. The Rensselaer & Saratoga R. R. Co. 15 Wend. Rep. 114. Weaver & others v. The Same, in Chan. April 4, 1837.) The only question upon this part of the case, therefore, is whether by the terms of their charter the defendants had a right to commence their rail road at a point within the bounds of the city of Schenectady—the north bounds of that city being the middle of the channel of the river.

It is only necessary to advert to facts of public notoriety, to enable us to understand the language used by the legislature in the first section of the charter of this corporation. As the canal was located on the south side of the Mohawk, several members of the legislature insisted upon having the ra^ roa-d uPon the north side of the river for the accommodation of the inhabitants on that side. And to compel the company thus to locate the road as far west as was suppoSe<^ to k® practicable and convenient, the words, “ and running thence, on the north side of the Mohawk river, as far as the village of Herkimer,” were inserted in the act. These words, however, were not intended to designate the side of the river where the road was to commence; which was to be either at the city of Schenectady, or near it. Rail roads had then been made, or were nearly completed, between Albany and Saratoga Springs; and which crossed the toll bridge of the Mohawk Bridge Company at Schenectady. The legislature, therefore, contemplated that the directors of the new corporation might find it for their interest to unite their rail way with the other rail road at the north end of the bridge ; which was near but not at or in the city of Schenectady. Hence the word near is used to show that the corporation was not to be compelled to cross the river with its road, which it might have been obliged to do if the starting point had been absolutely fixed at a point in the city. But the legislature also intended to give the corporation the right to extend their rail way across the river into the city if the directors at the time of the location of their road should deem it expedient to do so. And the language used in the first section of the act of incorporation is very appropriate to carry into effect this intention of the law makers. The preposition at, when it precedes the name of a place and denotes situation, frequently means the same as in or within ; and in that sense it was used by the legislature in this act of incorporation. Even the expression to a place has, in the charter of a turnpike company, been construed to mean to a point within the place to which the corporation was authorized to construct its road. (The Farmer’s Turnpike v. Coventry, 10 John. Rep. 400.) The directors of this rail road company were therefore authorized by the charter to commence their rail way near the city of Schenectady on the north side of the river, or at some suitable point on the south side of the Mohawk within the city. But if they commenced within the city they were bound to extend their road from thence directly across the river to the north side before they proceeded west towards the point of termination at the city of Utica.

The erection of the defendants’ bridge being authorized by the charter of the corporation, the natural remedy of the complainants for any damage they may sustain by an improper construction thereof, to their injury, is by a suit at law, after such injury has actually occurred. The jurisdiction of this court, however, to interfere by injunction to prevent the erection of a nuisance to the serious and irreparable damage of a complainant is now too well settled to be longer questioned. But the supposed danger to the property of the complainants does not render this a proper case for the interposition of this extraordinary power of the court of chancery. The principles upon which this court should proceed in granting or refusing relief by injunction in cases of this kind are correctly laid down by Lord Brougham in the recent case of The Earl of Ripon v. Hobart, (Coopers Rep. Temp. Brougham, 343.) If the thing sought to be prohibited is in itself a nuisance, the court will interfere to stay irreparable mischief, where the complainant’s right is not doubtful, without waiting for the result of a trial. But where the thing sought to be restrained is not in itself noxious, but only something which may according to circumstances prove to be so, the court will refuse to interfere until the matter has been tried at law by an action; though in particular cases the court may direct an issue, for its own satisfaction, where an action could not be brought in such a form as to meet the question. And in applying these principles, if the magnitude of the injury to be dreaded is great, and the risk so imminent that no prudent person would think of incurring it, the court will not refuse its aid for the protection of the complainant’s rights, by injunction, on the ground that there is a bare possibility that the anticipated injury from the noxious erection may not happen-j

In this case, even if we take the complainants’ own allegations as contained in their bill, I cannot say I am perfectly satisfied that the impending danger to their property by the erection of this bridge is so great as to authorize this court to interfere. And if the affidavits introduced on the * part of the defendants are allowed their due weight, it cannot be said that there is any thing more than a mere possikility that the complainants may be seriously injured by the damming up of the ice in the manner specified in the bill.

This disposes of the question of the granting of the injunction as prayed for in the bill; for if the Mohawk Bridge Company are entitled to relief on account of the supposed infringement of their charter by the carrying of passengers across the river in the railroad cars, the only relief to which that company would be entitled is an injunction to.restrain the defendants from carrying their passengers across the river on their bridge. But this could not deprive the defendants of the right to have a bridge to cross upon with their locomotives and cars ; which would not interfere with the right claimed by the bridge company.

There cannot be a reasonable doubt, however, as to the right of the Utica and Schenectady Rail Road Company, under the provisions of their charter, to transport their passengers across the river in their rail road cars, so long as they confine themselves to those who travel upon the rail road, and while they do not attempt to interfere with the privileges of the toll bridge company by crossing with those who merely wish to pass across the river in that way to avoid paying toll at the other bridge. The legislature" has indeed protected the Mohawk Bridge Company in the enjoyment of an exclusive right to carry passengers across the river at Schenectady, to a certain extent, by prohibiting others from establishing a ferry within a certain distance from the toll bridge ; but it has not deprived a future legislature of the right to authorize the erection of another bridge within the prescribed limits whenever the public good shall appear to require it. Much less is the legislature deprived of the power to provide for the conveyance of freight or passengers from one part of the state to another, by an improvement which was entirely unknown at the time when the grant to the bridge company was made. And if that grant had in terms given to the corporation the exclusive right of erecting a toll bridge across the river at Schenectady, this subsequent grant to the rail road company to cross the river with their rail way from Schenectady to Utica, and to transport passengers thereon in the ordinary course of their business in the conveyance of travellers from one place to another, would not have been an infringement the privileges conferred by such prior grant; as the rail road bridge would not be a toll bridge within the intent and meaning of the grant to the first company. Grants of exclusive privileges being in derogation of public rights belonging to the state or to its citizens generally, they must be construed strictly, and with reference to the intent and particular objects of the grant.

As the complainants are not entitled to the relief asked for in this case, the motion for an injunction is denied with costs.

         See the cases of The Proprietors of the Charles River Bridge Company v. The Proprietors of the Warren Bridge, 11 Peters’ U. S. Reports, 420 ; and Dyer v. The Tuskaloosa Bridge Company, 2 Porter’s Alabama Rep. 296.


text:
    Eckford and others v. De Kay and others.
    Where the testator gave an absolute conveyance of a part of his real estate, in which his wife joined, and afterwards by his will devised his real and personal estate to his executors and trustees, in trust, among other things to support the widow out of the same until 1840; and the executors and trustees after the death of the testator filed a bill to redeem the premises so conveyed by him ; Held, that the widow, who was entitled to dower in the testator’s real estate, in addition to the provision in the will for her support, was Hot a competent witness for the complainants to establish the fact that the deed, although absolute on its face, was only intended as a mortgage or security for the payment of a debt.
    A complainant who may be made liable for costs if he does not succeed in establishing the claim set up in the bill, is not a competent witness to prove the facts necessary to sustain the suit, although he has no personal interest in the subject matter of the litigation.
    A defendant in the cause may examine a mere nominal complainant, with his assent, as a witness against the real complainant. But a defendant who has a common interest with the complainant in the suit, cannot examine such complainant as a witness against a defendant for the purpose of sustaining the claim made by the bill.

      1837. July 18.
    Where one of the complainants who is a necessary party, but who has no personal interest in the subject matter of the litigation, is a material witness to prove the facts necessary to sustain the suit, the proper course, where the nature of the case will admit of such a change of parties, is to move to strike out the name of such nominal complainant and to make him a party defendant; so that he may be examined as such witness.
    A party complainant cannot be examined as a witness against the defendant, either in behalf of himself or of his co-complainants.
    This was an application for leave to examine M. Eckford and C. P. Clinch, two of the complainants, as witnesses against the defendants G. C. De Kay and wife, for the purpose of establishing the allegations in the bill of complaint. The decedent gave to his daughter Mrs. Drake an absolute deed of certain real estate in t{ie city of New-York; the legal title to which, upon her death, descended to her daughter Janet H. the wife of J. C. De Kay. This deed, as alleged in the complainants’ bill, was intended only as a mortgage to secure a debt due to the estate of the father of Janet H. De Kay, the late Joseph Rodman Drake. And H. Eckford the grantor having devised the whole of his real and personal estate to the complainants, his executors, in trust for his children and grand-child, the bill in this cause was filed by such executors to establish the fact that the conveyance was intended only as a mortgage, and to redeem the premises upon payment of the amount due and interest; and the children of the decedent were made defendants, together with G. C. De Kay and wife in whom the legal title to the premises in controversy was vested. The two last named defendants having put in an answer denying the allegation that the conveyance was intended as a mortgage, the children of H. Eckford, who admitted the allegations contained in the bill, presented their petition to the chancellor for leave to examine the complainants M. Eckford and C. P. Clinch, two of the executors, as witnesses in behalf of the petitioners—they having consented to be thus examined.

      J. Rhoades, for the petitioners.
    Charles P. Clinch and Francis R. Tillou, two of the executors, have no interest whatever in the suit, and are material witnesses as well for the co-plaintiffs as for some of the defendants. Mrs. Eckford is also a material witness and has no other interest than a claim of dower which she is willing to release. In Armiter v. Swanston, (Amb. 393,) the court gave leave to one of the defendants to examine one of the plaintiffs as a witness who was a trustee. In that case a case before Ld. Hardwicke was cited, where such leave was given. (See also The Mayor v. -, 1 P. Wms. 596; Walker v. Wingfield, 15 Ves. 178; Houghman v. Sandys, 2 Sim. & Stu. 221; Davenport v. Davenport, 1 id. 101; Turner v. Turner, 1 Strange, 708.) In Lloyd v. Makeam, (6 Ves. jun. 145,) an order to strike out the names of two of the plaintiffs on giving security for costs, was made without consent. In Motteux v. Mackreth, (1 Vesey, jun. 142,) on its being shown that evidence of a plaintiff was necessary, and the defendant refusing to consent to his examination, the bill on motion was amended by making him a defendant, and the replication withdrawn on payment of costs, &c. (See also Witts v. Campbell, 12 Ves. 493; Ewen 4. Atkinson, 2 Cox, 393 ; Cook v. Mancius, 5 John. Ch. R. 95.) In Rogersonv. Whitington, (1 Swanst. 39,) an issue was ordered and one of the plaintiffs allowed to testify. (See Hoffman’s Pr. 487, 502 to 508; Hoffman’s Master, 20.)

      R. Sedgwick, for G. C. De Kay and wife.
    The petitioners cannot examine Mrs. Ecltford and Clinch as witnesses, Mrs. Ecltford is directly interested to redeem the premises-alleged to be mortgaged. The cases of examining plaintiffs as witnesses are where they consent, being examined against their interests. (2 Mad. Pr. 316.) But here one defendant wishes to examine against co-defendants a complainant having the same interest as himself. Complainants may move to strike out a co- complainant for the purpose of making him a witness, where such complainant is a mere nominal complainant, or one having no interest, (1 Ves. jun. 142;) as where the plaintiff to be stricken out has executed releases, (Lloyd v. Makeam, 6 Ver. 145; Wilts v. Campbell, 12 id. 493; Ewer v. Atkinson, 2 Cox, 393;) or where assignees move to strike out the name of a bankrupt. (Cooper’s Eq. Pl. 28.) Mrs. Ecltford cannot release her interest so as to make her a witness. No case justifies such a course. It would introduce the alarming doctrine that any plaintiff may, when the shoe pinches, release and be a witness. A nominal assignment of interest or release in such a case would always be made with a secret reservation or one understood between the parties. As to Mr. Clinch, the executors are directed to pay him such salary or yearly compensation as they think proper for his specific services; and an executor, especially an executor in trust as in this case, is never a competent witness in equity to increase the assets. (Hunt v. Beach, 5 Mad. Rep. 353. Mulvany v. Dillon, 1 Ball & Beat. 409, 413.)
   The Chancellor.

Without expressing an opinion upon the question whether an executor in trust can be examined as a witness for the purpose of increasing the trust estate, as to which there appears to be some doubts in the courts of England, I am satisfied that Mrs. Eckford is not a competent witness in the present suit, even if the technical objection that she is a party did not exist. The sole object of the suit is to change what purports to be an absolute deed, from H. Eckford and his wife, into a mortgage; and to be permitted to redeem it as such. If the deed stands, her dower right in the premises is extinguished ; but if it is redeemed as a mortgage, she will then be restored to her right of dower. Again; she is interested in increasing the fund and preventing its being diminished by costs or otherwise, inasmuch as she is to be provided for until 1840 out of the estate. Perhaps the interest of Clinch, under the provision in the will to pay him a yearly compensation for his special services, may be considered as merely nominal, although it was decided by the supreme court of one of our sister states that the allowance to which an executor was contingently entitled as a commission upon the sum to be recovered rendered him incompetent as a witness. (Henderson and others v. Neff, 11 Serg. Rawle, 218.)

There is another objection to the competency both of Clinch and Mrs. Eckford as witnesses to sustain this suit; and that is their liability for costs if they do not succeed in establishing the claim set up in their bill. It appears to be a well settled rule in all courts that a person in whose name a suit is brought, and who may be made liable for the payment of costs if he fails in his suit, is not a competent witness to establish the facts necessary to sustain such suit; (Garde’s Law of Evid. 8, 9. 3 East. Rep. 7. Phillips v.The Duke of Bucks, 1 Vern. 230. Casey v. Beachfield, Gilb. Eq. Rep. 98. Gres. Ev. in Eq. 243.) There is a class of cases in which a defendant has been permitted to examine a mere nominal complainant, with his assent, against the real plaintiff. This, however, is not a case of that description, as the object of the petitioners is to examine a part of the complainants as witnesses in favor of themselves and their co-executors, to enable them to sustain their suit. It is true, the application nominally is, to examine them as witnesses in favor of the petitioners who are defendants. But such an examination would be entirely useless if the testimony could not be read, upon the hearing, in favor of the complainants. For the bill in this cause must be dismissed, whatever the other defendants may prove* unless the complainants can establish the fact that the absolute conveyance to their testator was intended as a mortgage. In fact, the petitioners and a part of the complainants have a common interest in this application, so far as relates to the beneficial interest in the trust estate; as two of the petitioners arc the wives of two of the complainants, and ought more properly to have been made complainants* with their husbands, instead of being made defendants; (Clarkson and wife v. Depeyster, 3 Paige’s Rep. 336.) Where the complainants and a part of the defendants have a common interest, adverse to that of the other defendants* an application by those defendants to examine a complainant against such othér defendants is substantially the same as if the complainants themselves made the application; in which case it is the settled law of the court that one complainant cannot be examined as a witness either in behalf of himself or of a co-complainant. (Hewatson v. Tookey, 2 Dick, 799: Phillips v. Duke of Bucks, 1 Vern. 230.) The proper course, where the nature of the suit will admit of such a change, is to move to strike out the name of the nominal complainant who is not interested, and make him a party defendant, so that he may be examined as a witness to sustain the suit. (Lloyd v. Wingfield, 1 Hogan’s Rep. 192. Motteau v. Macreth, 1 Ves. jun. 142. Lloyd v. Makeam, 6 Ves. 145. Nicholl v. Trustees of Huntington, 1 John. Ch. 173.) This, however, does not appear to be a proper case for such an application.

The petition must be dismissed ; but under the circumstances of this case—two of the petitioners being infants, I shall not charge the petitioners with costs. But the costs of opposing the application áre to be taxed as costs in the cause if the defendants De Kay and wife succeed in their defence.


author: McCoun, V. C. The Chancellor.

text:
    S. S. & W. Kuypers, Ex’rs, &c. vs. The Ministers, Elders and Deacons of the Reformed Dutch Church.
    If the admission or discovery of a'fact, stated in the bill or called for by the interogatories, cannot aid the complainant in his suit, or in obtaining the relief he claims, or to which he may be entitled either in the court of chancery or elsewhere upon the case made by his bill, the defendant may demur to such discovery ; or he may, in his answer, refuse to make the discovery and rely upon the immateriality of the fact of which the discovery is sought.
    But where the complainant upon the whole case, as stated in the bill, is not entitled either to discovery or relief, the defendant should demur to the relief as well as to the discovery.
    Where a church corporation, in the call of one of its ministers, agreed to pay him a salary which was less than the salaries of its other ministers, and covenanted-to raise the same to an equality with the salaries of the other ministers whenever the income of the church would enable them to do so ; and the bill alleged that the income of the defendants was sufficient at all times to enable them to pay such increased salary, but that they, had neglected and refused to increase tire same; and a discovery of the defendants property and income was called for by the bill; jfield, that the defendants must either admit by their answer that then-income was sufficient to pay such increased salary, or must make the discovery of their property and income.
    A demurrer which is'attempted to be sustained by an averment of a fact in.the , answer, is in the nature of a speaking demurrer, and is therefore not aided by such averment.
    "Where a plea or demurrer is accompanied by an answer to any part of the bill, and such plea ofc demurrer is overruled, the complainant, if he wishes a further answer or discovery as to the matters attempted to be covered by the plea or demurrer, must except to the answer already put in, for insufficiency.
    1837. July 18.
    A demurrer which is bad in part is bad in toto. But where a demurrer to the discovery is overruled because it covers too much, or upon a point of form merely, the defendant, upon exceptions to his answer for insufficiency, may raise the question as to the materiality of the discovery sought by such exceptions.
    This was an appeal from a decretal order of the vice chancellor of the first circuit overruling the defendant’s demurrer to a part of the discovery sought by the complainant’s bill. The following opinion was delivered by the vice chancellor, upon the hearing before him.
   McCoun, V. C.

The demurrer in this cause is to some parts of the discovery which the bill seeks, but not to the relief. In a bill praying both discovery and relief, the discovery is incidental to the relief; and if a demurrer will not lie as to the relief, it will not, in general, lie as to the discovery. Hence, in a bill of that sort, a defendant cannot pass by the relief, leaving the plaintiff’s right to relief to depend upon the answer and the proofs, and demurr to the discovery; since, if the bill shows such a case as to entitle the plaintiff to relief, it follows that he is entitled to a discovery of all the matters necessary or important to substantiate the case upon which his right to relief depends. (2 Bro. C. C. 121. Mitfd. Pl. 4th. ed. 183.) But the discovery sought must be material, otherwise the defendant may still demur to it, as being an unimportant part of the bill; upon the same principle, that in answering he may omit to answer such allegations as can have no bearing or relevancy, without being subject to the imputation of putting in an insufficient answer. In general, however, if it can be supposed that a discovery may in any way be material to the plaintiff, the defendant will be compelled to make it, except where the situation of the defendant would render it improper; as where his disclosures might subject him to pains and penalties, or a forfeiture, or might hazard his title. (Mitfd. 191 to 194.)

Geo. Wood & D. Lord, jun., for the appellants.

John Anthon, for the respondents.

In the present case, then, the question is, whether the parts of the bill demurred to, are at all material to the relief which it is possible the complainants may be entitled to at the hearing ; for, by not demurring to the relief, the defendants admit such possibility. The question, therefore, is not now upon the relief, which can only be determined at the hearing. And I am inclined to think that some part of the discovery demurred to, is not altogether immaterial and unimportant to the case made by the bill, and to the relief which it seeks. Thus, in relation to the Harpendinck will, and the possession and enjoyment of property under it, of which the bill prays a discovery, the complainants’ claim is mainly based upon it, as containing a trust in favor of their testator as one of the cestuis que trust. This, therefore, enters into and forms a material part of the case made by the hill, upon which the relief, in some measure, is to depend. The court cannot, upon this demurrer, undertake to settle the construction of the agreement contained in the call of 1789, and in the subsequent agreement of the 6th November, 1802, as set forth in the bill, nor say what effect they may have upon the claims under the alleged trusts of the will. If the defendants wished to present this question now, they should have demurred to the whole bill. As the pleadings stand, it can only be presented at the hearing upon the proofs. In the meantime, I am of opinion they must make the discovery which the bill in this respect seeks,

There are some parts of the discovery to which the demurrer is taken which would seem to be entirely unimportant. But this is a demurrer, which cannot be allowed in part and disallowed as to another part; and as I think it is not well taken in respect to the Harpendinck will, without examining it farther I must overrule it with costs.

The Chancellor.

The demurrer is well taken to most pf the discovery which it professes to cover, provided it is not overruled by the answer. If the admission or discovery of a fact stated in the bill, or called for by the J . .... interrogatories, cannot aid the complainant in his suit, or in obtaining the relief which he claims, or to which he may be entitled in this court or elsewhere upon the case made by his bill, the defendant may demur to the discovery of such immaterial fact; or he may, in his answer, refuse to make the discovery and rely upon the immateriality of the fact of which a discovery is sought. But where the complainant is not entitled either to discovery or relief, upon the whole case as stated in the bill, the defendant should demur to the relief as well as the discovery. And he cannot by demurring to the discovery of particular facts compel the court to decide the whole case as upon a general demurrer to the bill. In this- case it is alleged, among other things, that in 1789, Dr. Kuypers was called by the defendants to be one of the ministers of their church, by an instrument or call under their corporate seal, to preach twice a week in the Dutch language ; in which instrument or call the defendants agreed to pay him for his services as such minister, an annual salary of £300 until such time as by an increase of subscription or the ceasing of certain salaries then paid, the defendants should be able to raise his salary so as to make it equal to those of their other ministers ; which increased salary, upon the happening of such contingencies, they then agreed to pay him. The complainants further charge that the income of the defendants was at all times from the date of the call sufficient, but that the defendants had at no time raised the salary of Dr. Kuypers to an equality with their other ministers, according to the spirit and meaning of their call. And the bill prays, among other things, for a discovery of the annual income of the church property, and that the salary of the complainant’s testator may be made equal to that of the other ministers. For the purposes of obtaining such relief, a discovery of the income of the defendants property may be necessary, unless the defendants admit the fact that it was at all times sufficient to enable them to put the salary of Dr. Kuypers upon an equality with that of the other ministers, according to the intent and meaning of the call. But I cannot see how a discovery of the fact that Harpendinclc made such a will as is stated by the complainants, an(i that the defendants claim title to a portion of their property under that will, can aid the complainants in obtaining the relief specifically prayed for, or any other relief to which they may be entitled under the general prayer. In the case of M’Cartee v. The Orphan Asylum Society, (9 Cowen’s Rep. 437,) the court for the correction of errors decided that under the statute of wills a corporation could not take real estate by devise. And that being the case, a discovery of the fact that this property is held under a void devise might perhaps enable the heirs of Harpendinck, if there are any, or the people of the state if there are none, to deprive the defendants of their property; but it would not give the complainants any right to the income, as a devise in trust for the benefit of the ministers. If it is true, therefore, as stated in the bill, that any part of the property is held or claimed under a void devise, these complainants have no right to call upon the defendants to discover this defect in their title.. All the discovery they have a right to claim is the extent of the income of the property, whatever may be the source of title ; as that is the only question in which they are interested.

Neither does the question how the defendants became a corporation appear to be material in this case. The complainants’ testator contracted with the defendants as a corporation aggregate, and the bill is filed against them in that character. It does not therefore lie with the complainants to object that the defendants were not duly incorporated and are not now a subsisting incorporation, especially as no foundation for such an objection is laid in the bill. And the defendants who appear and answer as a corporation, and who admit that they contracted with Dr. Kuypers as a corporation, and under their corporate seal, cannot deny their own existence as a corporation.

There is a part of the discovery covered by the demurrer, however, to which the complainants have, a right to an answer, if they are entitled to any relief whatever upon the facts stated in the bill; and that is as to the yearly income of the property, subsequent to the 1st of November, 1791, and until the death of Dr. Kuypers. For the purpose of deciding the demurrer, the allegation in the bill “ that the defendants had at no time raised the salary of Dr. Kuypers to an equality With their other ministers, according to the intent and meaning of their call” must be taken as true. And if the defendants are right in supposing that the true construction of the call is, that the salary was only to be raised to an equality with those which the other ministers were receiving at the date of the call, then this is an allegation that his salary was not raised to that amount. It is of no benefit to the defendants upon this demurrer, that they have alleged in their answer that in 1795 they raised the salary to £400, which was the highest salary paid to any of their other ministers at the time of the call in 1789, and that such increased salary was regularly paid and received by the complainants’ testator without objection until the time of his death. If these facts are so, the defendants instead of demurring to this part of the discovery, should have pleaded the facts in bar of the discovery of the income of the property subsequent to 1795; or in bar of the discovery and relief, as to any supposed inequality in the salary subsequent to that time, according to the intent and meaning of the call.

A demurrer attempted to be sustained by an averment of fact in the answer is in the náture of a speaking demurrer, and is not aided by such averment. The defendants’ statement, in their answer, that they do not know and cannot set forth what was their revenue and income between 1791 and the time when the salary was raised, in 1795, cannot therefore be brought in aid of their demurrer to the discovery of their income during that period. On the contrary this is a full and perfect answer to that part of the discovry sought by the bill, and therefore overrules the demurrer.

As a demurrer bad in part is bad for the whole, it is not necessary that I should inquire as to the materiality of other parts of the discovery covered by this demurrer. It is sufficient to say that it for the most part depends upon the question, which I presume is the main point in the cause, whether, according to the true intent and meaning of the call, Dr. Kuypers’s salary was to be increased from time to time during his ministry, so as to give him a salary which was equal to the highest sum that should be from time to time paid to any of the other ministers. If the defendants wish to save themselves from the necessity of answering the parts of the bill which relate to that subject, they will have the opportunity to raise the question in another form, upon the argument of the exceptions which may be taken to the present answer for the purpose of compelling a further answer as to the several matters covered by the demurrer. Where a plea or demurrer is accompanied by an answer to any part of the bill, and the plea or demurrer is overruled, the complainant must except to the answer as insufficient, if he wishes to obtain a further answer as to any of the matters covered by the plea or demurrer. And where the court has not in fact decided the question whether the complainant is entitled to a discovery as to any particular matter, but has, as to that matter, overruled the plea or demurrer upon a point of form only, or because it covers too much, the right of the defendants to raise the question as to the materiality of the discovery upon the reference of the exceptions to the master is preserved. All I intend to decide in affirming the decretal order of the vice chancellor in this case is, that the complainants are not entitled to a discovery of the defendant’s title or claim of title under the will of Harpendinck, or how the defendants became a corporation, and what are their corporate rights; but that the defendants must in their answer admit that their income from time to time, from the first of November 1791 to the death of Dr. Kuypers, was sufficient to have enabled them to pay him a salary or compensation equal to the highest that they paid to any of their other ministers; or they must set forth the amount of such income annually during that period, so far as it is in their power to do so. Other questions which have not been examined and passed upon by the vice chancellor are reserved for his further decision.

The decretal order appealed from is affirmed with costs, and the proceedings are to be remitted to the vice chancellor.


text:
    Mills & Hooker vs. Argall and others.
    1837. July 18.
    An assignment by a limited partnership to a trustee for the benefit of creditors, after the firm has become insolvent or in contemplation of insolvency, is void as against the creditors of the firm if any preference in payment is given to one creditor or class of creditors over another.
    Such assignment is also Void as against Creditors if it provides for the pay: ment of a debt due to the special partner, rateably with the other creditors of the firm, or before all the general creditors are satisfied in full for their debts.
    Whether the general partner in a limited copartnership is authorized to make an assignment of all the partnership effects to a trustee, for the payment of debts rateably, without the consent of the special partner? Qmre.

    An assignment in trust for creditors, although voidable as against the cred. itors of the assignor who think proper to disaffirm it, is valid "as betweeri the parties to such assignment, and in favor of those creditors Who think proper to affirm it and to insist upon their rights as against the assignee. As to those creditors the assignee is estopped from denying the validity of the assignment except so far as it has been impeached or disaffirmed by other creditots of the assignor; and he tnhst account for the 'assigned property accordingly, although hé has surrendered up the assignment and taken a new one Upon different trusts.
    But where a voidable assignment is surrendered up to the assignor, and a new one taken upon trusts which are valid, a creditor who does not claim under the first assignment, and who has not acquired a legal or equitable lien upon the trust property or a right of preference previous to the execution of the last assignment, cannot impeach the second assignment on ae. count of any illegality in the first.
    This was an appeal from á decision of the vice chancellor of the first circuit, denying an application to dissolve an injunction. The complainants wefe creditors of a special copartnership in which D. C. Árgall vvás the abtive ánd W. Argall the special or dormant partner. The copartnership being insolvent, and suits being brought against the acting partner, by the complainants and others, he made an assignment to the defendant G. A. Curtis, one bf the firm of W. & G. Curtis, of all the copartnership propérty and effects for the benefit of the creditors. This assignment, however, was void ¿s against the creditors, because it gave preferences to some of the creditors, contrary to the provisions df the title of the revised statutes relative to limited pártnér-> ships. And one of the creditors having obtained a judgment and levied upon the effects of the copartnership, the assignee surrendered up the assignment to the acting partner, and took a new assignment of the same property and effects for the benefit of all the creditors, subject to the lien of the execution. In the last assignment a list of the creditors of the firm was given ; and the assignment was upon trust to pay to all the creditors named in that schedule a rateable proportion of the proceeds of the assigned property, if the same should be insufficient to pay the whole, after the payment of costs and expenses. Among the debts thus directed to be paid rateably, was one for $519 due to the special partner W. Argali. A few days after this last assignment was executed, the complainants obtained judgment against the acting partner,"and against two of the creditors of the firm who were also liable for the payment of the complainants’ debt. The execution upon the judgment being returned unsatisfied, the complaints filed their bill in this cause against the defendants in that judgment, and against the special partner and the assignee, to set aside the assignment and to obtain satisfaction of their debt out of the partnership property, or out of the interest of the two creditors, under the assignment, who were defendants in the judgment. An injunction was thereupon issued restraining the assignee from disposing of the assigned property or paying over the proceeds thereof under the assignment; and particularly from paying over to the creditors against whom the judgment was recovered their share of the proceeds. G. A. Curtis, the assignee, appealed from the order denying the application to dissolve the injunction.
    W. S. Sears & D. B. Ogden, for the appellant.
    The assignee, George A. Curtis, had a right to surrender to the assignor the first assignment: 1. Because it was contrary to the provisions of the revised statutes, and was null and void. (See 1 R. S. 764, § 20.) 2. Because nothing passed by it. (See House and others v. Woolsey, et al., 2 Edward's Rep. 289.) 3. Because none of the creditors had acquired liens on the property in the hands of the assignee before the surrender. (Idem.) The complainants in this cause cannot question in this suit the right to surrender the first assignment, because they acquired no lien on the property assigned until some days after the second assignment was made. (See the same case and Ames v. Blunt, 5 Paige’s Rep. 17.) The second assignment is good and valid, and made in conformity to the provisions of the act contained in title 1 of limited partnerships. (1 R. S. 763.) All the property passed thereby to the assignee, and became vested in him for the benefit of the creditors, and the court will not interfere to prevent the trustee from executing the trust, unless the fund is about to be jeoparded by the fraud or insolvency of the trustee. (See Orphan Asylum v. McCarty, 1 Hopk. Rep. 429.) Títere is no allegation in the bill that there is any danger of the trust property being misapplied or lost through mismanagement or insolvency of the assignee. The classing William Argali among the general creditors of the firm, for the amount loaned by him to the firm beyond the amount of the capital put in, is not fraudulent and in contravention of the provisions of the revised statutes in relation to limited partnerships. The revised statutes, in respect to limited partnerships, have created a species of corporation, and must be governed by the law of corporations and the strict letter of the statute. A stockholder in a bank which has become insolvent, who is also one of its bill holders, would be permitted to claim the amount of his bills rateably with the other creditors of the bank. No part of his stock could be claimed until -all the creditors of the bank were paid; but as to the amount of the bills held by him, he is in the same situation as any other person not a stockholder. A common law right cannot be taken away without an express enactment. The defendant William Argali, had a common law right to deal with the limited partnership as an individual. But even if no dealings between the special partner and the limited partnership is permitted, the assignment is not void or fraudulent, because it only directs the assignee to pay the amount due to each one of the creditors, and if the special partner cannot be a creditor until all the others are paid, the fund in the hands of the assignee must be distributed among the creditors who are entitled to be paid according to law, which the assignee is at his peril to observe.

      Charles Edwards, for the respondents.
    That which the statute law declares to be bad, cannot be made good by cancellation and the substitution of a new instrument. The case of Hone v. Woolsey, (2 Edward’s Ch. R. 289,) did not interfere with any express statute ; and even that decision is open to question. And we consider that the rights of third persons did intervene here, for, although we were only book debt creditors when both the assignments were made, yet this particular statute recognizes creditors generally. The first assignment was a direct violation of an express enactment, and therefore void. It could not be recalled and the punishment of it avoided. The second assignment is also void, as the special partner is made a creditor therein. This, we think, is our strong point. The statute says, § 23, “In case of the insolvency or bankruptcy of the partnership, no special partner shall, under any circumstances, be allowed to claim as a creditor until the claims of all the other creditors of the partnership shall be satisfied. We are now judgment creditors, and have a claim also upon any thing coming to the other defendants, Vanderveer and Vancleif, our judgment being also against them. Our injunction, which has never been dissolved, stayed the property in the hands of the assignee ; and as the_other side did not apply for a receiver it was right for us to do so; and even the circumstances of the covert conduct of the assignee, in lending himself to the insolvent by receiving a sealed assignment for creditors and then destroying it and receiving another in the same matter, should be enough in this stage of the suit to give us a receiver. Such an assignee is not to. be trusted, even upon his own answer.
   The Chancellor.

The first assignment in this case, though void as against creditors who chose to disaffirm it, was undoubtedly valid as between the assignor and assignee, in favor of those creditors who were provided for therein and who should think proper to insist upon their rights against the assignee, who had assumed a trust for their benefit. If these complainants, therefore, were claiming under the first assignment, the assignee might be estopped from denying the validity thereof, except so far as it had been impeached or disaffirmed by other creditors; and might be compelled to account for the assigned property according to the terms of the first assignment, notwithstanding the subsequent voluntary surrender of that assignment to the assignor. The present bill, however, is not filed for any such purpose ; as the complainants seek to disaffirm both assignments, and to reach the property in their character of judgment creditors of the assignor, after the return of an execution unsatisfied. Or, in any event, they make no claim whatever under the first assignment as a valid transfer of the property. So far as the complainants rights are concerned, therefore, the voidable assignment which they repudiate might lawfully be surrendered up to the assignor, so as to revest the property in the limited partnership. And if a valid assignment was thereafter made for purposes authorized by the statute, before the complainants had acquired any legal or equitable lien upon the fund, or any right of preference, they would have no right to impeach it on account of any illegality in the first assignment. This question was examined and decided by the vice chancellor of the first circuit in the case of Hone v. Woolsey, (2 Edw. Ch. Rep. 289;) and I fully concur in the conclusion at which he arrived in that case. If the last assignment had been intended as a mere confirmation of the first, and had been made for the purpose of securing to those who had come in under the first the fraudulent preferences therein declared in their favor, the result would undoubtedly have been different. In the present case, if the last assignment is valid, the property is legally vested in the appellant for the benefit of all the creditors ; and the injunction, so far as ■ it restrains him from selling the assigned property and collecting the assigned debts should be dissolved. That question I will next proceed to consider.

The statute relative to limited partnerships has prohibited either the general or special partner from giving any preference, .either by assignment of any part of the property or otherwise, after the firm has become insolvent, or in" contemplation of insolvency. But there is nothing in the statute which authorizes the acting or- general partner to make an assignment of all the partnership effects to a trustee, for the payment of the partnership debts rateably, or otherwise. There may, therefore, be some doubt as to the right of the general partner to make any assignment of all the partnership effects to a trustee, for any purpose, without the express or implied assent of the special partner; unless provision is made for such an assignment, in case of insolvency, in the articles of copartnership. (Havens v. Hussey, 5 Paige’s Rep. 30.) It is not alleged in this case, however, that the assignment was made without the authority and against the wishes of the special partner. And as the assignment upon its face purports to be for his benefit his assent thereto may be presumed.

There is another provision of the statute relative to limited partnerships which has been violated in this case,* and which rendered the second assignment, as well as the first, invalid as against these complainants and other general creditors of the firm who may think proper to repudiate the same. By the twenty-third section of the title of the revised statutes relative to limited partnerships, (1 R. S. 767,) it is declared that in case of bankruptcy or insolvency of the partnership, no special partner shall, under any circumstances, be allowed to claim as a creditor until the claims of all other creditors of the. partnership shall be Satisfied.. Yet in this assignment, which upon its face purports to be an assignment of all the copartnership property and effects, it is expressly provided that in case the fund is not sufficient to pay all the debts, that is in case the partnership is insolvent, the debt of $519 due to the special partner as endorser shall be paid rateably with those of the complainants and of the other creditors. And this provision will be binding upon all the creditors who may elect to come in under the assignment and affirm this disposition which has been made of the partnership effects. The assignment being in direct violation of this statutory provision, is fraudulent and void as against the other creditors; as it deprives them of a part of the means of payment secured to them by the statute in case of the insolvency of a limited copartnership firm, and delays and hinders them in the collection of a portion of their respective debts.

The order appealed from is therefore affirmed with costs.