text:
    Hawley and others vs. Ross and others.
    Whether an order of a debtor, directing the payment of a debt out of a designated fund belonging to such debtor, and the acknowledgment of the receipt of the order by the person having the custody of the fund, is an equitable appropriation of the fund, so as to give the creditor a specific lien thereon; Quiere ?

    The duties of as urviving trustee, on his decease, do not devolve upon his personal representatives or upon his heirs ; but the trust if unexecuted vests in the court of chancery, with all the powers and duties of the original trustee. Such representatives or heirs, therefore, are not .authorized to institute a suit for the benefit of the cestui que trust.
    The sixty eighth section of the article of the revised statutes relative to uses and trusts, which devolves the trust upon the court of chancery upon the death of the surviving or sole trustee, is applicable to the trustee of a future or contingent interest in personal property.
    This was an appeal from a decree of the late vice chancellor of the third circuit. Previous to the marriage of the widow of R. James deceased, with the defendant W. E. Ross, a deed of settlement was executed, by which her estate was conveyed to S. S. Treat as trustee for her separate use. An agreement was also entered into between her and W. James the father of her late husband, by which each was to execute a bond to the other as trustee for her three infant children by her late husband ; conditioned to pay ten thousand dollars for the use of such children, or the survivor of them, in equal proportions as they should respectively attain the age of twenty one years. Bonds were executed and delivered accordingly, previous to the marriage, which was the day after the deed of settlement. And shortly after the marriage, the defendant G. S. Ross, for the purpose of carrying into effect the agreement with W. James to secure the payment of the children’s portion out of her separate estate under the deed of settlement, made and subscribed an order or direction to the then trustee or the trustee to be appointed under such deed of settlement, which order was endorsed on the bond given by her to W. James as trustee ; whereby she ordered and directed S. S. Treat, or such other person or persons as might be appointed the trustees of her estate, to pay the several sums of money mentioned in her bond, at the days and times and in the manner therein specified. The bond, with this order endorsed thereon, was afterwards shown to Treat the trustee, who endorsed thereon as follows: “ I acknowledge service upon me of a true copy of the above written order and within written bond. Albany, April 19th, 1828. Samuel S„ Treat.” Elizabeth James, one of the children named in the condition of the bonds, died in 1830 under age ; and Treat, the trustee under the marriage settlement, died in February, 1831. In July, 1832, Ross and wife presented a petition to the chancellor, to have a new trustee appointed in the place of Treat; and W. James appeared and presented a cross petition, to protect the rights of the surviving children of R. James in the trust estate under the bond and order of Mrs. Ross. On these petitions, an order was made to appoint the trustee named by Mrs. Ross, on condition that both she and W. James should give security to the register by way of mortgage on real estate, conditioned to pay the amount of their respective bonds, for the benefit of the two surviving children ; the mortgage óf Mrs. Ross to be upon a part of her separate estate, and to be executed by herself and husband and the new trustee. The consent mentioned in the order was not given by Ross and wife, and the order for the appointment of the new trustee, therefore, became inoperative. W. James died a few months after-wards. The complainants, as his executors, filed the bill in this cause against Ross and wife and the two surviving infant children of R. James, to have a suitable and proper person appointed as trustee under the marriage settlement, and to have the ten thousand dollars which was payable out of the separate estate of Mrs. Ross properly secured ; the complainants alleging that W. E. Ross was insolvent, and that the fund was in danger of be'ng lost.

      March 6.

      By the answer of the defendants Ross and wife most of the facts stated in the bill were admitted. But they denied that Mrs. Ross ever agreed to give security for the payment of the $10,000 to her children ; on the éontrary, they alleged, that at the time of the execution of the bonds she was requested by W. James, to give such security but refused to do so. They also insisted that the complainants had no interest in the subject matter of this suit, and that neither the complainants nor the infant defendants had any right to interfere in the appointment of a trustee under the marriage settlement. The infant defendants put in answers by their guardian ad litem, claiming the two sums secured by the trust bonds and submitting their rights to the judgment of the court. The cause was heard before the vice chancellor upon pleadings and proofs. He decided and decreed, that upon the death of Treat, the trustee of the seperate estate of Mrs. Ross, it became the duty of W. James, as the trustee in her bond for the use of the children, to procure the appointment of a competent person to take charge of so much of the trust property as would be sufficient to secure their interests therein under the bond and order; and that upon the death of W. James, a similar duty devolved upon the complainants as his legal representatives. He therefore directed a reference to a master to appoint a suitable trustee, and to take from such trustee satisfactory security for the performance of his trust; and that such trustee should, as soon as practicable without sacrificing the interests of the trust estate, create a fund to pay the amount of the SI0,000 bond, and report the same to the court. He also directed the costs and counsel fees of the complainants and of the infant defendants to be paid out of the estate of W. James in the hands of the complainants; and that the same be deducted from the amount payable by them to the infant defendants on the bond to their mother as their trustee; and that the residue of the costs incurred in the suit be paid by the trustee to be appointed by the master under the deed of settlement, out of the separate estate of Mrs. Ross in his hands. From this decree, the defendants Ross and wife appealed.

      H. G. Wheaton, for the appellants.

      J. V. L. Pruyn, for the infant defendants.

      James King, for the complainants.
   The Chancellor.

Had it not been for the recent decision of the court for the correction of errors, I should have had no doubt that the order or direction of Mrs. Ross to her trustee to pay the amount of the bond when it should become due, out of her separate estate in the hands of her trustee, and his written acknowledgment of the receipt of the order, was sufficient to create an equitable appropriation of a part of that fund to the payment of that debt; so as to give the trustee of the infants a right to be heard on the appointment of a new trustee, in order that a responsible person might be appointed in whose hands the trust fund would be safe, so far as they were interested therein. But in the case of Rogers v, Hosack and others, the court of dernier resort decided, at the last December term, that an express covenant to pay a debt out of a particular fund belonging to the covenantor did not give to the persons to whom that covenant was given any legal or equitable right to a preference in payment out of that specific fund. And if such a covenant, founded upon a new and valuable consideration, would not create an equitable preference, a mere order of the wife upon the trustee of her separate estate to pay a debt out of the same, and without any new consideration, would not create a specific lien upon the trust estate; although the order was duly intimated to the trustee. I am therefore bound to declare, contrary to my opinion when the application was made to me in the summer of 1832 to appoint a new trustee, that W. James as trustee of the infant defendants had no interest in the appointment of such new trustee under the marriage settlement of Mrs. Ross, and had no right to be heard on such an application. She may therefore apply to modify the order of July, 1832, if she shall think proper to do so, and to make absolute the appointment of her brother William Lush, as trustee in the place of Treat.

Even if the vice chancellor was right in that part of the decree which declares that it was the duty of W. James, as the trustee for the children, to procure the appointment of a new trustee under the marriage settlement to protect their interests in that fund, he was wrong in supposing that the duties of his trust devolved upon the complainants as his personal representatives at his death. That probably might have been the case at common law; as the right to bring a suit upon the bond given to him as trustee was vested in the complainants as executors, and they held the bond as trustees for the children. The testator died, however, after the law in this respect had been changed by the revised statutes. The 68th section of the article of the revised statutes relative to uses and trusts, (1 R. S. 68,) provides that upon the death of the surviving trustee of an express trust, the trust estate shall not descend to his heirs or pass to his personal representatives; but the trust, if then unexecuted, shall vest in the court of chancery with all the powers and duties of the original trustee, and shall be executed by some person appointed for that purpose under the direction of the court. If there was any doubt from this section, taken only in the connection in which it stands, that it was intended to apply to trusts of personal as well as of real estate, it is made applicable to the present case by the second section of the title relative to accumulations of personal estate, &c. (1 R. S. 773.) The money secured by the trust bond being payable at a future day, is a future interest or estate in that money according to the definition of a future estate as given in the statute. (1 R. S. 723, § 10.) The condition of this bond therefore, contains a limitation of a future estate, which is to a certain extent a contingent interest in personal property; and the persons upon whom the legal interest or trust is to devolve, upon the death of the trustee, must be controlled by the provisions of the 68th section above referred to. The trust which W. James held by virtue of this bond, at the time of his death, devolved upon this court and not upon his executors. The bond should therefore be delivered to the register, or to the general guardian of the infants for their use ; so that he may get a new trustee appointed to receive the first payment, which will become due when Elizabeth James would have been 21 if she had lived.

For these reasons, the decree of the vice chancellor must be reversed, with costs both in this court and in the court below, to be paid by the complainants out of the estate of the testator in their hands to be administered.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Hosack and Blunt, executors, &c. vs. Rogers and others.
    Where the court for the correction of errors modified a decree, after the remittitur had been delivered to the solicitor of the appellant, but before it was actually received and acted upon by the court of chancery, the modification of the decree was deemed a recall of the remittitur, and the same was ordered to be taken from the files and returned to the clerk of the court of errors, to be amended according to the decree as finally settled by that court.
    A remittitur from the court for the correction of errors must in all cases be presented to the chancellor before it is filed, and the order to be entered upon it must be entered under the special direction of the court.
    March 6.
    This was an application to vacate an order entered in the office of the assistant register, upon remittiturs from the court for the correction of errors, and to take such remittiturs off the files of this court. The cause had been heard in the court for the correction of errors upon cross appeals from an interlocutory order of the chancellor, made upon an appeal by the defendant N. Rogers from a decision of the vice chancellor of the first circuit; upon which hearing the appellate court modified the order of the chancellor, and directed their decree to be remitted to the court of chancery. After the remittiturs had been made out and delivered to the solicitor of N. Rogers, but before they had been received and filed in the court of chancery, the appellate court, upon an ex parte application of the complainants’ counsel, made a slight modification of their decree as previously settled in that court; and the chancellor thereupon made an order to stay the filing of the remittiturs as originally made out by the clerk of the court for the correction of errors. Before this order could be served upon the solicitor of N. Rogers, in the city of New-York, and before he had any information as to the alteration made in the decree of the appellate court, he filed the original remittiturs with the assistant register at New-York and entered an order of course thereon, remitting the proceedings to the vice chancellor, so that the decree of the court for the correction of errors could be carried into effect.

      S. Stevens, for the complainants.

      A. C. Paige, for the defendant N. Rogers.
   The Chancellor.

The court for the correction of errors having in fact modified or altered then’ decree, while the remititurs were in transitu and before they had been actually received and acted upon by this court, the appellate court had not lost its jurisdiction of the cause. And although no blame rests upon the solicitor of Rogers for filing such remittiturs before he had notice of the subsequent act of the appellate court, the modification of the decree by that court must be considered as a recall of the remititturs as made out by the clerk. They must therefore be taken off the files of this court and returned to him, so that they may be amended by inserting therein the decree of the appellate court as finally settled. And when the corrected remittiturs are brought into this court they must be presented to the chancellor, so that a proper order may be made thereon to carry into effect the decree of the appellate court; and that this court may make the necessary order for the purpose of giving to the complainants an opportunity to serve their papers and to give notice of a motion for further directions as to the custody of the fund, in case it shall be found to be unsafe, as contemplated by the amendment of the decree, if the complainants shall think proper to make such an application. In the meantime, and until the decree of the appellate court, as finally settled there, is remitted by the clerk in the usual form, all proceedings by either party founded upon the original remittiturs, or in relation to the subject matter of the appeals to the court for the correction of errors, are to be stayed before the vice chancellor; and the order remitting the proceedings to him is to be suspended.

The practice upon a remititur from the court for the correction of errors does not appear to be settled either in this court or in the supreme court; but in that which has most generally been adopted the practice of the two courts appears to be different. In the supreme court, as I understand from the judges and some of the officers of that court, the usual practice is to file the remittitur in the clerk’s office, and to enter a common order thereon under the 64th rule of that court; which rule is substantially the same as the 46th rule of the court of chancery. And it is not usual to bring the case to the actual notice of the court, unless there is something in the judgment of the appellate court which cannot be carried into effect under a common order, and which therefore requires the action of the justices of the supreme court, either at the general or special term of that court. ’ Even there, however, the practice has not been uniform; as some practitioners are in the habit of applying to the court in all cases for a special order, upon the remittitur, to carry into effect the judgment of the court for the correction of errors. The usual practice in the court of chancery, so far as I have been able to understand the same, has been to apply to the chancellor ex parte for a special order, upon the remittitur, to carry into effect the decree or order of the appellate court, although it was a mere decree of affirmance or reversal which required no special directions of the chancellor to carry it into effect. But the practice in this court has not been uniform, as some solicitors, particularly in the city of New-York, have been in the habit of filing the remittitur with the proper officer, and entering an order of course thereon, under the 46th rule of this court, to make the decree of the appellate court a decree of this court, and to carry the same into effect here.

There does not appear to be any good reason why the practice in the two courts should be different, although this court is always open and the regular terms of the supreme court are only held quarterly; as I presume, as a matter of form, the judgment is entered upon the record of the supreme court as of some regular term thereof subsequent to the decision in the court for the correction of errors; and a court for hearing special motions is now held monthly. The better practice appears to be, and that practice must be considered as the settled practice of the court of chancery for the future, to require the party to whom the remittitur from the appellate court has been delivered, to present it to the chancellor previous to its being filed; to enable him to see whether any thing special is required which entitles the adverse party to be heard before the order of the appellate court can be fully complied with, so that the proper order may be entered on such remittitur, under the special direction of the court. But to prevent any unnecessary delay where the chancellor is required by the decree of the appellate court to give special directions, as to which both parties have a right to be heard, the party to whom the remittitur is delivered, instead of making an ex parte application in the first instance, may give notice to the adverse party for some regular motion day, either in term or vacation, that he will file the remittitur and ask for such order or decree thereon as he may think himself entitled to, or as the court may deem necessary and proper to carry into effect the decree or order of the court for the correction of errors.

As the solicitor for N. Rogers was not informed of the subsequent amendments of the decree by the court, after the remittiturs had been delivered to him by the clerk, and had therefore no reason to suppose that the filing of such remittiturs would be irregular, and as the practice proper to be pursued in such a case was not then settled, there is no ground for charging the defendant with the costs of this application. But the complainants’ costs upon the motion are to be taxed as a part of their costs in the cause, if they succeed in obtaining a decree which entitles them to their general costs, either payable out of the fund in the hands of the executor of Gracie or otherwise.


text:
    Gardner, administratrix, &c. vs. Gardner and others.
    An executor or administrator who is cited to account before the surrogate, must bring in a full account of his receipts and disbursements, on oath, in-including all sums properly chargeable to him on account of the estate, whether mentioned in the inventory or not.
    Where the rights of infants or of absentees are to be affected by the accounting, it is the duty of the surrogate to require the executor or administrator to verify his account by oath, in the usual form, although other parties, who appear, consent to waive such verification.
    Where the executor or administrator verifies his account in the usual manner, he must also support the credits claimed by him in the account by proper vouchers or other evidence of the payment. And if he wishes to be allowed for payments or disbursements of $20 or under, for which he has no vouchers or other evidence, the times when, the persons to whom, and the purposes for which such payments were made, must be particularly stated; and in addition to the usual verification of the account, he must swear positively that the sums thus charged have actually been paid.
    Proper course of proceeding, upon the accounting of an executor or adminis trator before the surrogate.
    The surrogate has jurisdiction, upon the taking of the account before him, to examine and decide upon the validity of a claim against the executor or administrator in favor of the estate; especially where the party accounting is entitled to a distributive share of the estate.
    The executor or administrator must account for all sums due from him to the estate either at law or in equity.
    Whether the sureties of an administrator are liable for a debt due from him to the decedent, and which he neglects to account for and pay over to the creditors or distributees; quart ?

    The separate estate of a feme covert is chargeable in equity with debts which she contracts on the credit of, or for the benefit of such estate; as to which estate she is regarded as a feme sole. And where she has borrowed money from her husband on the credit of and for the benefit of such estate, if she is afterwards appointed his administratrix it is her duty to proceed against the separate estate to obtain a re-payment of the money, for the benefit of his estate, or to pay the same out of her own funds. But she is not personally liable for the payment of a debt contracted by her during her coverture on account of such separate estate.
    A wife who is appointed administratrix of her husband, is not liable to account for his property which was expended by her during his lifetime, except in a case where it was expended for the benefit of her separate estate, which remained after his death.
    March 6
    Tras case came before the chancellor upon an appeal from the sentence or decree of the surrogate of New-York, upon the settlement of the accounts of the appellant C. Gardner administratrix with the will annexed of James Gardner her former husband.. The accounts were referred to the auditors, who decided, among other things, that the respondents the nephews of the testator were not charg:able with the interest on a bond and mortgage given to him by their father, except from the death of the latter; the interest previous to that time being bequeathed as a specific legacy for the support of the respondents and their father. The creditors also charged the administratrix with the sum of $2000 received by her from her husband’s property in his lifetime and invested in improvements on and the purchase of lots for her separate estate. And they refused to allow her for two sums which she had been compelled to pay after the death of her husband for balances due at the time of his death on account of a joint guardianship of two infants which had previously been committed to her husband and herself. The surrogate confirmed the report in all these respects and made a decree for the distribution of the estate accordingly, in conformity to the directions of the will; that is to say, one half of the residuary estate to the appellant and the other half to the respondents. And he also decreed that the costs of both parties be paid out of the estate. From this decree the administratrix entered a general appeal with the surrogate ; but in her petition of appeal filed in this court, she only claimed that the decree was erroneous in the three items above specified; and as to the costs of the legatees.

      D. B. Ogden W. N. Dyckman, for the appellants,

      Robert Bogardus, for the respondents.
   The Chancellor.

The petition upon which the proceedings were instituted before the surrogate was sufficient as an allegation to authorize the surrogate to direct an accounting. But there was an irregularity on the part of the administratrix in not bringing in her account under oath in the usual form. If she had done this instead of making the verbal statement to the surrogate, that she received $2000 of her husband which was expended on her property at Wiiliamsburgh, the adverse party would have known whether she meant to declare on oath that she did not believe that sum ought to be credited to the estate, and could have taken their objections accordingly. This court has frequently decided, that where an executor or administrator is cited to account before a surrogate either by creditors, legatees or distributees, he is bound to bring in a full account of his receipts and disbursements, on oath, including all sums which are properly chargeable to him on account of the estate whether mentioned in the inventory or otherwise ; the substance of which oath is, that the account, according to the best of his knowledge, information and belief, contains a full and true account of all his receipts and disbursements on account of the estate of the decedent, and of all sums and property belonging to the estate which have come to the hands of such executor or administrator, or which have been received by any other person by his order or authority for his use; and that he doth not know of any error or omission in the account, to the prejudice of any of the parties interested in the estate of the decedent. And where the rights of infants or of absentees are to be affected by the accounting, it is the duty of the surrogate to see that the account is duly verified by the executor or administrator, although other parties, who appear, consent to waive such verification of the account. The accounting party must also support the credits he claims, by proper vouchers or other evidence of the payments. And where he wishes to be allowed for payments or disbursements of $20 or under for which he has no vouchers or other evidence, the times when, the persons to whom, and the purposes for which such payments or disbursements were made, must be particularly stated ; and he must also add to the usual affidavit verifying the correctness of the account a positive allegation that the sums charged under twenty dollars for which no such vouchers or other evidences of payment are produced have actually been paid or disbursed by him, as charged. (Kellet v. Rathbun, 4 Paige’s Rep. 102.)

Where the account is made out and verified in the usual form, and the proper vouchers are produced in support of the same, the adverse party should be called upon by the surrogate to state his objections, if any, to the account, so as to save all unnecessary or useless expense ; and at the peril of costs, to be charged upon such party personally, if he makes objections which upon a subsequent investigation of the accounts it shall be found he had no reasonable or probable grounds for making. A party however is not absolutely precluded by the objections first made to the account ; as it frequently is discovered in the course of the investigation that charges have been improperly inserted in the account, or credits to the estate have been omitted by the executor or administrator, which the adverse party had no means of knowing at the time the account was first presented. In this respect, it is like a proceeding to take an account before a master, where additional charges or discharges may be afterwards received, upon sufficient reasons shown, and giving the adverse party an opportunity to be heard thereon and to produce evidence to rebut or to explain them. I think the auditors were right, under the circumstances of this case, in permitting the respondents to go into evidence in support of the $2000 claim.

Neither do I see any objection in this case to the jurisdiction of the surrogate to examine and decide upon the validity of a claim against the administratrix in favor of the estate, for the purpose of determining what portion of the estate she shall be permitted to retain as one of the residuary legatees. If a debt claimed to be due cannot thus be ascertained, it will follow of course that a bill in chancery must be filed in every such case ; as the administrator or executor cannot sue himself. And yet there are many cases in which the debt claimed to be due from the executor or administrator is beneath the jurisdiction of the court of chancery. The object of the legislature, in the last revision of the laws, was to give to the surrogate a complete jurisdiction to do justice between the parties, upon an executor or administrator’s being cited to account. And where such executor or admininstrator accepts the office, he cannot object to that mode of deciding the question whether he is not himself a debtor to the estate of which he has assumed the management. Whether the sureties of the administrator can be made liable for a balance found due from the administrator, to the decedent in his lifetime, is a question which cannot arise in this case. That an executor or administrator cannot be excused from his personal liability for the debt due to the estate, whether the claim against him is a legal or an equitable one, is perfectly clear. And I am satisfied that the surrogate’s court has jurisdiction to determine the question of such liability, where the alleged debtor is cited to account before that court for the administration of the estate : especially where he is entitled to a distributive share of the fund which may be found due upon such accounting.

The only question in this case therefore, as to this item of the account, is whether this $2000 was a demand due to the estate, which could have been collected or obtained in any manner, for the benefit of the residuary legatees or of the creditors of the decedent, if administration had been granted to some other person than the widow. And from the whole evidence taken together, I am satisfied it was such a demand, and that the appellant was properly charged with that sum and with the interest thereon from her husband’s death. During the existence of the marriage it is impossible for the wife to make any contract or agreement with her husband, which will make her personally liable to him or to his estate either in law or equity. But she may have a separate estate of her own, which estate is chargeable in equity for any debt she may contract on the credit of or for the use of such estate. So far as that estate is concerned, she is considered as a feme sole; and the estate is answerable for money borrowed by her or her trustee for the benefit of such estate, although the husband is the lender. It appears from the evidence in this case, that the appellant had such a separate estate at Williamsburgh, which estate was probably held during her husband’s lifetime in the name of W.lliams as her trustee. And the money for which she gave the bond to her husband was applied by her cither in building upon this separate estate or in the purchase of additional lots. The testimony is not explicit, however, as to the actual application of the money for the purposes of this separate estate. But if it was not so applied, then I think it may be fairly presumed from the evidence that she had it in some other property or in money or securities at her husband’s death. In which latter case, she is personally liable to account for the same as a part of the decedent’s .property; as it could not belong .to her unless it was a part of her separate estate.

If the money was received and applied by her to the use of her separate estate, then such separate estate was holden to pay the debt. And although she was not personally liable to pay it if she has not herself received the benefit of the separate estate after the death of her husband, it was her duty as a faithful administratrix to see that such separate «estate reimbursed the amount to the estate of her husband. Had another person taken out administration, it w/ouldi have been his duty to call upon her or on her trustee ‘to pay the debt out of her separate estate, at least to the full extent of the value of such separate estate ; and there is no pretence in this case that such estate was not wor th more than this $2000, which was laid out in improvements thereon or in purchasing additional lots. She being the administratrix was bound to enforce the .payment in the same manner, if the estate was in the hands of a trustee who would not apply such "property to pay the debt without a suit in equity for that purpose. And if she has taken the trust property into her own hands, on has neglected to enforce the payment of this debt by a proceeding against the trustee, she is now personally liable therefor, as administratrix, although she was not personally liable at the time of the decedent’s death, in the same manner as any other person would have been liable, as administrator, for neglecting to collect a debt due to the estate which could have been -collected with reasonable diligence.

I agree'with the surrogate that it was perfectly competent for the husband to discharge the separate estate of the wife from an indebtedness to himself. From the testimony, however, I do not believe he was in a situation to transact business understanding^, either at the time of the alleged destruction of the bond or for a long time previous thereto. He had become so completely broken down by intemperance that he was not only incompetent to the management of his property, by reason of his habitual drunkenness, but was also so far deranged in intellect as to render it necessary to confine him repeatedly in a mad-house. And when it is ascertained that a man’s natural intellect is so far destroyed, it must require stronger evidence than exists in this case, to satisfy one who has been in the habit of investigating cases of this kind that the mind was not still diseased, although it was not necessary to resort to actual confinement of the decedent at the time of the destruction of the bond. A rational man, if he really intended to discharge his wife’s separate estate from so large an amount, would have given to her or to her trustee some written evidence of the fact, instead of leaving it to depend upon the recollections of one who, from her situation, would hardly fail of being suspected of giving a false coloring to the case. As there is no evidence to impeach the testimony of Jane Mil-nor, I must presume her mother or some one else had persuaded the decedent to destroy the bond, and that the witness saw a paper destroyed which probably was the bond that had been given for the money loaned to the appellant for the benefit of her separate estate. But if implicit reliance is to be placed upon the honesty of this witness, suspicious as the circumstances are in relation to the facts intended to be established by her testimony alone, still the court was not bound to rely upon the correctness of her judgment as to the real state of the decedent’s intellectual capacity, at the time the bond was supposed to be destroyed. Her testimony on that point is a mere matter of opinion. And I think there was other evidence which fully justified the conclusion at which the creditors and the surrogate appear to have arrived, that the decedent, at the time spoken of, was not of sufficient capacity and judgment to transact business of this kind understandingly, so as to make a voluntaiy gift of this large sum available in favor of one who had so much influence over him as to obtain the real control of his business and property. Certainly, if he had made a codicil to his will at that time, giving to his wife a further legacy of two thousand dollars, attested and proved by this witness only both as to his capacity and as to the fact of his signing the instrument, such a codicil could not have been sustained under the circumstances as to his capacity, &c. immediately before and after that time, as disclosed by the other proof. And if such a written bequest of the $2000 would not have been available to the donee, from this broken down inebriate whose faculties both of body and mind were so nearly destroyed by his continued intemperance, a mere parol gift of the same amount, under such suspicious circumstances, ought not to be considered as valid, so as to deprive the appellants of their claim to the same as a part of his estate. The decision of the surrogate as to this item must therefore be affirmed.

The question as to the interest which had accrued on the bond and mortgage of Charles Gardner, previous to his death, having been deliberately settled by this court upon the construction of the same will, in another suit, where the decision was in conformity to the decision made by the auditors and the surrogate in this case, the decree appealed from must be affirmed as to that point also.

I think, however, the court below should have allowed to the appellant the two sums which she was compelled to pay for the balance found due from her and her husband, at the time of their removal, as the joint guardians of the estate of the two infants. There is no doubt of the fact that she actually received the money which was afterwards found not to have been expended for the benefit of the infants. But there is no evidence that it was kept by her as a separate fund which could be traced and identified as being still in herhands,asthe surviving guardian, after her husband’s death. And if it was spent before that time, either for the support of herself and husband, or otherwise, unless for the special benefit of her separate estate, the estate of the husband was the primary source to which the infants were to look for payment; as in legal contemplation the husband's estate alone has been benefitted by the misapplication of the money of’ the wards by himself and his wife. The decree of the surrogate must bo opened and modified in this respect.

The objection to the allowance of costs to the respondents out of the estate is not well taken, and the decree in that respect should be affirmed. Indeed it is more doubtful whether the surrogate should not have charged the appellant’s own costs upon herself personally, instead of charging them upon the estate in which the other parties were interested ; as nearly the whole expense of taking this account has arisen from her neglect to render a correct account, and to pay over the shares of the legatees who had arrived of age, according to the directions of the will.. But under all the circumstances, I think the surrogate made- the proper disposition of the costs before him. Neither party was entitled to counsel fees, upon the proceedings to account, beyond the usual taxable allowances under the fee bill; although the auditors seem to have supposed otherwise in one of the blank items of the account as made out by them. The result, however, as between these parties would be the same, if the counsel fee allowed to each party was the same in amount; as the residuary fund was to be divided equally between the two contending parties.

The decree of the surrogate must be modified’ accordingly, without costs to either party on this appeal. And the proceedings must be remitted to the surrogate to carry into effect the decree as thus modified. Interest to be allowed upon the balance from the date of the surrogate’s original: decree.

       See Jumel v. Jumel & Lagardare, in Chancery, July 2, 1839, S. P.


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    Gleason and another vs. Gage.
    Where the plaintiff in a judgment after causing an execution to he issued thereon, which is returned unsatisfied, assigns the judgment, the assignee may file a creditor’s bill upon such judgment, without taking out a new execution after the assignment. And in such a bill it is not necessary for the complainant to state the consideration of the assignment.
    This was an appeal from a decree of the vice chancellor of the first circuit, allowing a demurrer and dismissing the complainants’ bill with costs. From the bill it appeared that R. Rowley, in April, 1837, recovered a judgment against the defendant in the common pleas for $225; that Rowley caused an execution to be issued on the judgment against the property of the defendant, which was returned unsatisfied, and that the day after the return of the execution the complainants purchased the judgment of Rowley and took a written assignment thereof by deed. The bill, which was filed about a month after the purchase, to obtain satisfaction of the judgment out of the equitable interests and choses in action of the defendant, also contained the usual averments required to be inserted in creditors’ bills. The defendant, demurred to the bill for want of equity, and assigned as causes of demurrer that no consideration for the assignment was stated in the bill, and that the assignees themselves had never taken out an execution on the judgment after it was assigned to them.
    March 6.

      H. S. Mackay, for the appellants.
    The issuing and return of a second execution, by the complainants, was unnecessary. The one already issued by the plaintiff, and returned unsatisfied, gave his assignees the right to proceed by a creditor’s bill against the equitable assets of the defendant. This right is conferred by 2 R. S. 173, § 3, although assignees are not named. It is not usual or necessary in statutes conferring rights or remedies to include by name assignees or legal representatives ; because it is understood that either law or equity, as the case may be, casts the right and remedy on them, or recognizes and protects their title. The rights and remedies of assignees are commensurate with the rights and remedies of the assignors, as a necessary legal and equitable sequence; and where a proceeding has been instituted they are entitled, when entitled at all, to go on from the last step and to derive the same- benefit from what has been done by the original party as that party himself would have derived.
    The issuing of a new execution would be only to satisfy an idle form. By the return of the former execution it was judicially ascertained that the defendant had no goods amenable to the execution. The legal remedy was thus exhausted. This is all a sound and reasonable construction of • the statute requires. The issuing and return of the execution is to ascertain the fact whether the defendant has property to satisfy the execution. That being done by the plaintiff on the record, can any good reason be given why a further and another, and (if there be successive assignments) another and yet another execution should be issued and returned ? If the legal remedy be exhausted by the first execution, what more can be done ? Where the statute speaks of the party suing out his execution and thereupon filing his bill, it means both the party and his assignees. But the statute is merely declaratory of the common law. The right to file a creditor’s bill existed before the adoption of the revised statutes. The complainants, as assignees, had the right to file their bill by virtue of the common law powers and jurisdiction of the court of chancery.
    The objection to the decision of the vice chancellor is, that it tends to impair and interrupt, instead of facilitating the remedy in equity consequent on the return of an execution unsatisfied. It impairs the rights of bona fide assignees, who in equity, on general principles, are substituted in the place of the assignors and subrogated to their rights.

      John A. Morrill, for the respondent.
    Until the complainants sue out an execution, the goods sought to be discovered are not-.bound, and they are not entitled to discovery. (2 R. S. 173. Angel v. Draper, 1 Vern. 399.) The bill does not state that the complainants sued out execution after the assignment of the judgment to them. They rely on the execution sued out by Rowley, and returned unsatisfied, when they should have sued out an execution as assignees of the judgment. (Wakeman v. Russell, 1 Edw. Ch. Rep. 509.)
   The Chancellor.

The vice chancellor has undoubtedly based his decree in this case upon his reported decision in the case of Wakeman v. Russell, (1 Edw. Ch. Rep. 509.) I think, however, he has in both cases misapprehended the spirit and intent of the statutory provision upon the subject of creditors’ bills. The object of the revisers and of the legislature was not to establish, as a technical rule, that the execution should have been taken out by the same individual who filed the bill. But it was to establish and declare the great principle decided by the court for the correction of errors, in Hadden v. Spader, that the creditor, after the remedy against the tangible property of the debtor had been exhausted by the return of an execution unsatisfied, might come into this court for the purpose of obtaining a discovery and payment out of property of the debtor which could not otherwise be reached. It is therefore the duty of the court to extend the remedy to every case coming clearly within the spirit and intent of the statutory provision. For that reason it has already been decided, by this court, that a creditor by a decree in equity, who has exhausted his remedy by execution thereon, may file a bill for relief, in the same manner as a creditor by judgment; although the language of the statute, if strictly construed, would limit the remedy to creditors who had obtained judgments in courts of common law only.

In courts of common law the real party is sometimespermitted to prosecute his suit in the name of a third person who has no subsisting interest therein. And he is frequently compelled to use the name of the original creditor where a chose in action has been assigned. But in this court the assignee of a right of action must prosecute the suit in his own name ; and it is a good defence, in most cases, that the nominal complainant has no interest in the subject of the litigation. The complainants, therefore, after they had purchased this judgment, were compelled to file the bill in their own names. And there is no góod reason for requiring them to go through the mere formality of taking out a new execution, and having it returned unsatisfied, when the ink was scarcely dry upon a similar return made by the sheriff on the execution which had been issued at the instance of the party from whom they purchased the judgment.

There is no foundation for the objection that the consideration of the assignment is not stated in the bill. The assignment is stated to bo by deed, and that of itself imports a sufficient consideration to support, the assignment. If the assignment is valid between the parties thereto, so as to transfer the whole interest in the judgment to the complainants, the debtor who has neglected to pay the judgment, and who has no legal or equitable defence as against either the assignor or the assignees, has no right to know how much, or in what, the assignees of the judgment paid, upon their purchase of that judgment.

The decree appealed from must be reversed, and the demurrer be overruled, with costs. And the defendant must pay the costs and put in his answer within thirty days.

The proceedings are remitted to the vice chancellor.


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    Moffat & Curtis vs. Winslow and others.
    A bona fide sale of stock which has a speculative value in the market will not be rescinded, although the stockhas been sold at a very extravagant rate, merely on the ground that some of the officers of the corporation have been guilty of a fraudulent deception by which both the buyer and the seller were induced to suppose the actual value of the stock was much greater than it really was.
    Where the stock is entirely worthless, and has not even a speculative value except what is the result of the fraudulent misrepresentation or deception of a third person ; whether the vendor can recover upon a note given for the purchase money, or whether the note is void for want of consideration; quare ?

    The court of chancery will not relieve from an improvident contract for the purchase of stock which has a speculative value in the market, where the sale is without fraud or warranty, although the stock is sold at a price f-.r beyond its real value.
    The agent of a corporation is not the agent of the individual stockholders, so as to vitiate a sale of stocks on account of his frauds to which the seller was not privy.
    This was an appeal from a decision of the vice chancellor of the first circuit, dissolving the injunctions issued in this cause restraining the defendants severally from proceeding at law to collect certain notes. The original consideration of the notes was the purchase, by the complainants, from the defendants N. Ri.hards and C. H. Richards, severally and at different times, of certain shares of the capital stock of an incorporated company by the name of “ The Virginia Mining Company,” chartered by the legislature of Virginia for the purpose of working gold from mines generally in that state. Previous to the incorporation of the company, the defendant N. Richards and one N. Taylor had become the owners of certain gold mines and mining privileges in several places in Virginia, the original cost of which with the improvements thereon made by them was about $43,500. These lands and mining privileges they had divided into one hundred shares, estimated at $1000 each; and a private company had been formed, consisting of these two persons, and seven others who upon an investigation of the quality of the ore in some of the mines became share holders at that price. And W. K. Smith, having afterwards purchased from one of the associates three shares, became also one of the company. After the incorporation of the company the capital stock was divided into 3000 shares of $100 each, and was afterwards increased to 5000 shares; making a capital of five hundred thousand dollars, the amount to which the capital was limited by the charter. These ten associates subscribed for and became the owners of the whole amount of stock, in proportion to the amount of their respective interests in the mines and mining privileges before owned by them ; the defendant N. Richards being then the owner of one fourth and the defendant C. H. Richards of three fifths of such mines and mining privileges. And the several interests of the original associates therein were thereupon transferred to the corporation, in payment of the stock so subscribed by them respectively. N. Taylor was elected president of the company, and N. & C. H. Richards with some of the other associates were elected directors thereof. As most of the associates lived in the. neighborhood of New-York, W. K. Smith of Virginia, one of the stockholders who professsed to be well acquainted with gol 1 mining operations, was appointed the general agent of the corporation, to superintend the working of the mines, and the extracting of gold from the ore at the principal mine called the Orange mine. Having become the owner of a considerable number of shares of the stock of the company, Smith, either for the purpose of enhancing the value of his property therein, or for some other reasons not explained, made to the directors of the company and others from time to time grossly false and fraudulent representations as to the quality and richness of the ore produced from the Orange mine. He also sent on to the directors at New-York, as fair specimens of the ore extracted from the mine, several parcels of ore; some of which the complainants and Wilmarth their copartner were employed to assay. In the course of the complainants’ employment as such assayers they became acquainted with the representations which Smith had made, as to the richness of the ore and the quantity of such specimens contained therein. And from the result of their assays in connection with the representations which Smith had made, both the complainants and the defendants formed very extravagant ideas of the real value of the Orange mine, and of the stock of the corporation ; the result of such assays, in connection with the representations of Smith, showing that the property of the corporation was worth many millions of dollars. The consequence was that the complainants and Wilmarth became desirous of participating in the profits of the corporation by a purchase of some of the stock. They accordingly purchased of the defendant N. Richards 20 shares of his stock in the corporation, at the rate of $250 per share ; and gave their copartnership note for the amount, with interest thereon, payable in one year. This note was renewed, and the interest thereon paid from time to time, until November, 1834, when, Wilmarth having died, the complainants gave two notes for the principal of the debt, one of $2450 and the other of $2550 ; which were a part of the notes in controversy in this suit. Soon after this purchase Moffat, one of the complainants, paid a visit to the Orange mine in person ; and after having examined the same and seen and conversed with Smith, he wrote home such a flattering account of the probable value of that mine, that his copartners were induced to make a purchase of the defendant C. H. Richards of 19 shares of his stock, at the extravagant price of $500 per share ; for which they gave to him the partnership note, payable in 18 months with interest. And the defendant N. Richards, in consequence of this favorable representation of Moffat, was himself also induced to purchase stock to the amount of about $12,000, at the rate of $450 and $475 per share. In November, 1833, C. H. Richards being about to visit the West Indies for his health, and wishing to pay his brother the sum of $8000, the complainants and Wilmarth consented to divide the note of $9500 given upon the purchase of the 19 shares from him. They accordingly gave to N. Richards two notes amounting to $8000, payable to him or his order, with interest, in December, 1834; which notes were accepted by him as a full discharge of the debt due from C. H. Richards. And another note was given for the residue of the $9500 note and interest payable to the order of C. H. Richards; which note was afterwards transferred to the defendant R. H. Winslow. These three notes were also in controversy in this suit. In October, 1833, Moffat and Wilmarth, together with one of the directors of the corporation, went to the Orange mine, Smith the superintendent having then resigned, for the purpose of working the mine by means of an improved machine. And they then discovered the impositions practised upon the directors and stockholders by Smith, and found that the stock was merely an ordinary mining stock of comparatively little value.

      March 6.

      This bill was filed to restrain the collection of the notes, given by the complainants, as above mentioned, in renewal or exchange for those originally taken by C. H. Richards and N. Richards respectively, upon the sales of stock to the complainants and Wilmarlh. Upon the coming in of the answers, applications were made, on behalf of the defendants respectively, to dissolve the injunctions which had been granted on the filing of the bill. The vice chancellor held that this court had no jurisdiction or power to relieve the complainants on account of the misrepresentations of Smith who was not the agent of the individual stockholders but of the corporation; there being no pretence of fraud or misrepresentation on the part of the defendants who sold the stock. The injunctions were therefore dissolved. From the orders of the vice chancellor dissolving the injunctions respectively the complainants appealed.

      R. Sedgwick & W. Emmerson, for the complainants.

      N. P. Hall, for the defendant N. Richards.
    A. L. Robertson, for Winslow and C. H. Richards.
   The Chancellor.

The vice chancellor was clearly right in the conclusion at which he arrived, that Smith could not be considered as the agent of the individual stockholders, so as to make them responsible for his frauds, or to vitiate a contract made by an individual stockholder for the sale of his own stock. Neither is there any pretence in this case that the complainants were induced to purchase from any misrepresentations made by either of the defendants. If they made any representations to the complainants, they represented nothing but what was true; to wit, that Smith had made certain statements in relation to the quantity and quality of the ore which he was obtaining from the Orange mine. These representations, even if made in the hearing of the complainants, and I presume such were made by one of the defendants, were not made for the purpose of inducing them to purchase the stock, but were made while in communication with the complainants as assayers for the corporation. When the complainants afterwards undertook to deal with C. H. Richards, not in their character of assayers but in the character of purchasez's of his individual stock, both parties were acting for themselves in their pi’ivate capacities. Both were therefore under the same obligation to ascertain what reliance should be placed on the z’epresentations of Smith; for he was the agent of neither party in l’elation to such a transaction.

In the case of Colt v. Woollaston Arnold, (2 P. Wms. Rep. 154,) Sir Joseph Jekyll relieved the complainant against a contract for the purchase of stock in a mei’e bubble, fraudulently gotten up for the alleged purpose of extracting oil fz-om z-adishes. In that case, however, the stock was z’eally worth nothing, and the defendants knew that fact, when they induced the complainant and many others to subscribe to the same and took their money. The defendants there also made false representations to the subscribers, by stating that the contributors had landed security which would prevent them from hazarding the amount their subscz’iptions, although the defendants well knew the land was pi’eviously pledged for nearly treble its value. And the decision in that case was put upon the express ground of fz-aud. It was upon that ground also that his honor refused to listen to the objection that the complainants had a remedy at law; the court of chancery having a concurrent jurisdiction with the courts of law in cases of fraud. But if the mere fraud of the dii'ectors and officers of a corporation, to enhance the value of its stock, was of itself sufficient to authorize the court of chancery to rescind contracts for the sale of stocks at extravagant prices, made by those who were not privy to such frauds, nearly all the contz-acts for the sale of stocks in the South Sea Company, at 1000 per cent, which took place the same year in which the radish bubble and many others of the same character were projected, would have been rescinded. In that case the directors and officers of the South Sea Coznpany were guilty of the most outrageous frauds to enhance the value of the stock; for which their whole property was taken fi'om them by act of parliament, for the benefit of the sufferers in consequence of such frauds. But although thousands were ruined by their speculations in this stock, and various questions were brought before the courts upon contracts for the transfer of stocks at the most extravagant prices, between parties who were not privy to those frauds, I have not been able to find a case in which such a contract was set aside on account of any fraud of the officers of the company, of which fraud the vendor of the stock was not cognizant at the time of the making of his contract of sale. Those who purchased the new stock created by act of parliament, from the company itself, at three hundred per cent advance, would undoubtedly have been entitled to relief against the frauds of Sir John Blount, the projector of the South Sea scheme, and his associates in the direction. But as those original purchasers were afterwards enabled to sell that stock at still more extraordinary rates, they probably availed themselves of the opportunity. They thus being gainers instead of losers by the frauds of the officers of the company, and therefore had no grounds of complaint. The subsequent cases in which relief has been given to the purchasers of stock in mere bubbles, some of which are referred to in the opinion of the vice chancellor, all go upon the ground of fraud in the vendors. And the decisions in those cases are professedly based upon that of Sir Joseph Jekyl in the case of the radish-oil bubble. (See 1 Sim. Rep. 37, 45; 2 Idem, 289.)

I am not prepared to say that a vendor of stock, or of any thing else, which at the time of the sale was entirely worthless, and which had not even a speculative value except such as arose from the fraudulent misrepresentations of a third person, could recover upon a note given for the consideration which thus entirely failed. But where the article sold is of some value, and there is neither fraud or warranty on the part of the vendor, this court cannot rescind the sale, or relieve the purchaser, upon the ground that he has made a very bad and improvident speculation. Here the complainants’ bill shows that at the limes when they purchased these stocks they w'ere aware that, if the representations of Smith were all true, the actual value of the shares they were purchasing was much greater than the prices they agreed to give. They therefore intended to secure to themselves the benefit of a very profitable speculation. And as they would have been entitled to those extravagant profits, by the purchase of these shares in a mine worth many millions if their visionary expectations had been realized, they must, as many others have done recently, submit to the loss they have sustained by their improvident and speculative bargains.

There is ano. her objection also to the relief claimed in this case; which is that the complainants affirmed the contracts for the purchase of the stock by giving new notes for the purchase money after the frauds of Smith had been discovered. Smith resigned as superintendent in September, 1833 ; and in October Moffat and Wilmarth went on to work the Orange mine themselves, and the frauds of Smith were then discovered. In the latter part of November thereafter the complainants, and Wilmarth their copartner, took up the note originally given to C. H. Richards, and gave two of the new ones to N. Richards in exchange therefor; knowing that the object of this arrangement was to pay a debt then due to the latter. It would therefore be a fraud upon N. Richards for them to set up as a defence to these notes the existence of the previous misrepresentations of Smith, of which they were well aware when such notes were taken by him in payment of the debt of C. H. Richards. And the notes given upon the purchase of N. Richards’ stock were also renewed repeatedly after that time; and the new notes now in controversy were given after the death of Wilmarth in the fall of 1834. After these repeated recognitions of the validity of the original contracts, long after the facts in relation to Smith’s frauds were fully ascertained, it is too late for the complainants to set up the existence of such frauds as a defence to these new notes.

For these reasons the order appealed from must be affirmed with costs.


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    Pardee vs. De Cala and others.
    Documentary evidence, set out or distinctly referred to in the pleadings, and which is of itself evidence without further proof, such as exemplifications of records, deeds duly acknowledged, &c. may be road at the hearing, without notice to the adverse party, or any order previously obtained for that purpose, although not made an exhibit before the examiner.
    Where a creditor’s bill states the return and filing of the execution to have been on a day subsequent to the commencement of the suit, the bill will be dismissed at the hearing, although the objection is not taken in the answers of the defendants.
    March 6.
    This was an appeal from a decree of the vice chancellor of the first circuit. The bill was filed against De Cala as a judgment debtor of the complainant; and Murray, another of the defendants, was charged with having taken a fraudulent assignment of the property of De Cala. Richards, the other defendant, had received a mortgage on the property without consideration. The defendants in their answers, among other things, denied all knowledge of the issuing or return of the execution as set forth in the bill, and left the complainant to make such proof thereof as he should be advised. The defendant Richards also denied all knowledge of the recovery of the judgment against De Cala except from the allegations in the bill. Upon the hearing the complainant produced exemplified copies of the judgment and of the execution with the sheriff’s return thereon. The defendants’ counsel objected to the reading of these exemplifications as evidence, on the ground that they had not been made exhibits in the cause, and that the complainant had not given notice of his intention to use the same ten days before the timé for closing the proofs, as required by the seventy-fifth rule. The vice chancellor sustained the objection and ordered the bill to be dismissed with costs; but without prejudice to the complainant’s right to commence de novo.

      W. Silliman, for the appellant.
    The fi. fa. and return offered in evidence before the vice chancellor, being a record, could be proved by an exemplification. (2 Starkie on Ev. 285, 151, 2, 3.) By the English practice, as it has been well settled for about a century, a record may be given in evidence at the hearing, without any order for the purpose or notice. (2 Fowler’s Exch. Pr. 188.) And all other writings may be proved viva voce at the hearing, on obtaining an ex parte order of course. (4 Bro. P. C. 658. 1 Turner’s Pr. 127.) The English practice in regard to proving exhibits was the practice of this court up to 1817, when Chancellor Kent directed a notice to be given, instead of an order. But as to records or exemplifications, which proved themselves, no order or notice was necessary. (2 John. Ch. 481.) And this practice was followed up to 1830, when it was altered by the 75th rule of the court, which is applicable to all documentary evidence “ not set out or distinctly referred to in the pleadings.” The fi. fa. and return are distinctly referred to, and made the foundation of this suit. Their production could not operate as a surprise on the defendants ; therefore they are within the words and the reason of the rule. If the fi. fa. was inadmissible under the rule, yet as the practice had never before been so settled, and as there was no gross neglect or misconception on the part of the plaintiff, the bill should not have been dismissed for that cause, but the cause should have stood over in order to supply the defect of evidence; and a summary proceeding should have been adopted for that purpose. (1 Paige, 550. 1 Turn. Pr. 505. 2 Russ. 9. 13 Ves. 457, 8. 1 Newl. 367. 1 Ves. & Beame, 153. 2 Amb. 408. Prec. in Ch. 496. Reg. Gen. 1817, 302.) Even on appeal this defect may be supplied. (9 Price, 343. Hoffman’s Pr. 498, cites 1 Cox, 437 ; Daniel, 545 ; 9 Price, 563 ; 1 Russ. 301 ; 8 Price, 613; 1 Russ. 526 ; Seaton’s Dec. 363; 1 Jacob, 337.) At law a case may be amended after argument. (2 Paine & Duer, 134. 2 John. Rep. 481. 3 Id. 140. 1 Caines, 74.)

      N. Dane Ellingwood, for the defendants.
    The execution alleged in the bill of complaint to have been issued, is put in issue by the answer of the defendants. It could not be read on the hearing under the 75th rule of this court, and it should have been issued to the same county where the 'debtor resided.
   The Chancellor.

If the ground for rejecting the exemplification of the fi. fa. and the sheriff’s return thereon was as stated in the decree appealed from, the decision of the vice chancellor was clearly wrong. By the practice of the English court of chancery, a party who wishes to prove an exhibit at the hearing, which has not been proved in the usual way in the examiner’s office, must obtain an ex parte order for that purpose, in which the exhibit is particularly described ; and this order must be served upon the adverse party at least four days before the hearing. Chancellor Kent altered the practice here, by substituting a reasonable notice of the intention to prove the exhibit at the hearing instead of the ex parte order; reserving to the court the right, upon the hearing, to determine whether it was proper to have the exhibit thus proved. (See 2 John. Ch. Rep. 481.) But neither an order or notice was requisite in any cases except those in which the examination of a witness was necessary to prove the exhibit. Certified" copies of proceedings in the same court, if made by a sworn officer thereof having the custody of the original records, and exemplifications of the records or proceedings of other courts,which were of themselves evidence without further proof, and deeds duly acknowledged or proved so as to enittle them to be read in evidence without further proof of their due execution, might be read at the hearing as a matter of course, if pertinent to the issue. The course of practice in this respect is distinctly laid down by Fowler; and he refers to a decision of the court of exchequer, in which that court declared that there was no occasion for any party to give notice of, or to have an order to prove exhibits at the hearing, to authorize the reading of any deeds or evidence that did not require proof. (2 Fowler's Pr. 159, 2d ed.) The evil which existed under the practice of the court previous to 1830, and which the adoption of the 75th rule was intended to remedy, was that a party was frequently surprised at the hearing by the introduction of some documentary evidence, not referred to in the pleadings in such a manner as to apprise him that it might be so used. He therefore had no opportunity to examine witnesses for the purpose of explaining such documentary evidence, or of rebutting the effect thereof, when produced for the first time at the hearing. This rule therefore required that the documentary evidence should either be made an exhibit before the examiner, or that the party against whom it was intended to be produced should have notice of such intention a reasonable time before the order to close the proofs was entered, so as to give him an opportunity to examine witnesses in relation thereto, or to introduce his countervailing proofs. (4 Paige, 608.) But it was supposed that neither party could be surprised by the introduction of a deed or other documentary evidence, at the hearing, which was set out in the pleadings or distinctly referred to therein as a part of the complainant’s or of the defendant’s case. The introduction of such documentary evidence was therefore left as it stood by the previous practice of the court, except so far as that practice was altered by the last clause of the 75th rule. Where a deed or other instrument, duly acknowledged or proved so as to entitle it by law to be read in evidence without further proof, is thus set out or referred to in the pleadings, the party may therefore produce and read the same in evidence at the hearing, in the same manner as he might have done before the adoption of this rule. And the practice is the same where the document set out or referred to in the pleadings is a judgment, execution, or other proceeding which may be proved by an exemplification thereof; or any other document as to which the law allows an exemplified or certified copy to be given in evidence instead of the original. But if the document intended to be produced is a deed requiring proof by a witness, or a certified copy of a record w'hich requires the examination of a witness to prove it genuine, the party must cither prove it in the usual way before the examiner, or must obtain an order for leave to prove it at the hearing, although it is set out or referred to in the pleadings.

In this case the judgment and the execution being’distinctly referred to in the pleadings as a part of the eomplainant’s case, the production of an exemplified copy of either at the hearing could not operate as a surprise upon the defendants. And if the exemplification produced had corresponded in substance with the execution set out in the bill, it ought to have been read at the hearing to establish the fact of the issuing and return of such execution. The decision of the vice chancellor in rejecting the exemplification as evidence was right howrever, on another ground. . The execution as exemplified is returnable on the 18th of January, 1833, and appears to have been returned and filed on the 19th of the same month. But the execution, as stated in the bill, was returnable on the 28th of January, and was returned unsatisfied by the sheriff on the 29th; both of which were after the commencement of this suit, which was on the 23d of January as appears by the teste of the subpoena. I was induced in the first place to believe this was a clerical error in the copy of the bill furnished on this appeal, and that it was not so in the original. It appears however by the endorsement of the clerk on this copy, that it is the same which was used before the vice chancellor. The abbreviation of the pleadings annexed to the complainant’s case also states the allegation in the bill to be that the execution was returnable on the 28th, and that it was returned by the sheriff on the 29th of January. I conclude therefore that this error was contained in the bill as served on the adverse party; so that the objection, if it had been raised in the court below, could not have been obviated without an amendment of the bill. Such an amendment, if a matter of form merely, might be made in any stage of the suit, under the provisions of the revised statutes ; but not so in a matter of substance, without giving the defendants an opportunity to put in a new answer if they thought proper to insist upon their strict rights. (2 R. S. 424, § 1, 2. Bowen v. Idley, In Chan. April 5, 1836.)

I have endeavored to get over this objection, as I think upon the merits of the case, if the bill was properly framed, the complainant would have been entitled to relief as to the fund paid over after the commencement of this suit. But I cannot make a decree in his favor, upon this bill, consistently with established principles. If the decision of the court below had been right on the objection actually raised there, and this other difficulty had been suggested, which had not been alluded to in the answer of either of the defendants, the court might have done what was done in Bowen v. Idley; that was to dismiss the bill, without costs and without prejudice, unless the defendants would consent to have the bill amended so as to permit a decision of the case upon its merits. The appeal in this case brings up the question as to the general costs in the cause so that the decree can be reversed as to those, although I am obliged to affirm it as to the dismissal of the bill. So much of the decree therefore as allows costs to the defendants De Cala and Murray in the court below must be reversed, and the residue of the decree is affirmed. The defendant Richards appears to have acted in good faith and was therefore entitled to his costs in the court below; and it was not his fault that the situation of the cause was such that the complainant could not have a decree over against the other defendants for the costs which are thus charged upon the compiainant.

Neither of the parties are to have costs as against the other upon this appeal.


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    Crosier v. Acer and others.
    An agreement by a party to whom a release is given for the purpose of ren. dering him competent as a witness, that after he has been sworn and examined on the trial the release shall be delivered up and cancelled, is a fraud upon the party to the suit against whom the witness is to be examined, and is therefore void.
    No party to a fraudulent agreement can sustain a suit founded upon the neglect of his adversary to carry such agreement into effeet.
    A judgment is not a lien upon lands, as against bona fide purchasers, for any longer period than ten years from the time of docketing thereof; although the contingency upon which the collection of the judgment depended was such that no execution could have been taken out on the judgment within the ten years.
    Where both parties to an agreement have acted upon a mistake as to the law, if the nature of the transaction is such that they cannot be restored sub. atantially to their rights as they existed previous to the agreement, the , court of chancery cannot relieve against the consequences of such mistake.
    Whether the court of chancery can relieve a party against a mere1 mistake óf law, in any case, where the adverse party lias been guilty of no fraud or ‘unfair- practice;; ot’sre ?
    Where a bill is dismissed, at the hearing, upon a mere defect of form in the pleadings, and not upon the merits of the ease, it should be dismissed without prejudice to the complainant’s right to institute a new suit if he thinks "proper to do "so.
    March 6.
    About the year-1812, G. Perrin the defendants’ testator purchased of Simon Stone one third of a lot of land in Monroe. county called the Budlong lot; the title to which Stone-agreed to warrant. And as there was some question about the goodness of the title conveyed to Perrin by Stone, Perrin took from the latter a judgment in the supreme court, to indemnify him against the failurcofsuch title. Stone at the same time took from Perrin a written agreement that the judgment should only be enforced in case there should be a failure of the title to the lot conveyed to him by Stone. In 1816 the complainant purchased of S. Stone a lot of land, on which Perrin’s judgment was then a lien, and paid the purchase money therefor; having then no other notice of the existence of the judgment except the constructive notice which the law implies from its being docketed. S. N. Chubb and Orrin Slone also obtained the title of other lands from S. Stone, about the same time, on which this judgment was then-a lien. Another part of the Budlong lot had been conveyed by S. Stone to his son Elias, and liad been deeded by the latter to G. B. Richardson. In 1827 an ejectment suit was brought against Richardson, for the re- , covery of that part of the lot, by those who claimed the whole of the Budlong lot under the adverse title ; in which suit the several" parties interested in the Budlong lot under S. Stone’s title were anxious to improve him as a witness. The counsel of Richardson supposing it" to be necessary to have a release of Perrin’s judgment in order to make Stone a competent witness, and such counsel, as well as Chubb, Crosier, and O. Stone, supposing that Perrin’s judgment was still a lien on the lands held by them, although they obtained their conveyances from S. Stone more than ten years before that time, a new arrangement was made, to secure Perrin’s rights to an indemnity against the failure of his title, and at the same time to obtain a release from him to S. Stone ; so that the latter might be examined as a witness for the defendant Richardson in the ejectment suit. In pursuance of that arrangement Crosier, Chubb, and 0. Stone gave a judgment bond to Perrin, for the amount of the old judgment against S. Stone, including the interest thereon, except $50 which Perrin agreed to deduct. Perrin thereupon gave to them a written agreement similar to the one which was executed upon the giving of the old judgment. He also executed to S. Stone a general release; and the latter was afterwards examined as a witness for the defendant on the trial of the ejectment suit. That trial resulted in a verdict in favor of Richardson the defendant; but a new suit was afterwards instituted in which those who claimed title adverse to the defendant recovered that part of the lot. Perrin then proposed to Crosier and O. Stone to compromise the controversy with the adverse claimant, as to the residue of the Budlong lot which was then held by the heirs of Perrin’s grantee. They declined consenting to a compromise. A suit was thereupon brought against those who had derived title under Perrin for that part of the lot; which suit was defended by Perrin, who had warranted the title to his grantees, but such defence was unsuccessful. Upon this last trial it was thought advisable by those who were interested in the defence of the title derived from S. Stone to improve O. Stone, one of the defendant’s in the second judgment, as a witness. Perrin thereupon consented to restore his competency by discharging the second judgment, and taking Crosier’s note for two thirds of the amount, and Chubb’s note for the other third, in lieu thereof. This arrangement was consummated accordingly. And Crosier having neglected to indemnify Perrin, or to pay his note after the unsuccessful termination of this last suit, the executors of Perrin brought a suit at law upon the note, to recover the amount due thereon pursuant to the agreement. Crosier thereupon filed his bill in this cause to be relieved against the payment of his note, and for a perpetual injunction to restrain the defendants from proceeding at law thereon. The complainant among other things alleged that he was ignorant of the law at the time he united with Chubb and O. Stone in giving the judgment bond, and that he then supposed the first judgment was a lien upon the land which he had purchased of S. Stone more than eleven years before; but that he was subsequently advised that the lien of the judgment was extinguished as to his land at the expiration of ten years from the recovery of such judgment. The bill also charged that, at the time of the execution of the judgment bond and release, Perrin agreed that after the trial the release should be given up to him by S. Stone, and that he would give up the judgment bond, so as to restore the first judgment as it stood before ; but that after the trial he refused to carry that agreement into effect, and unfairly and fraudulently procured a judgment to be entered thereon. This allegation in the bill was denied by the answer of the defendants. After the testimony in the cause was closed the case was heard upon the pleadings and proofs, before the vice chancellor of the eighth circuit; who dismissed the bill with costs. From this decision of the vice chancellor the complainant appealed.

      A. Sampson, for the appellant.

      Ira Bellows, for the respondents.
   The Chancellor.

I agree with the vice chancellor that the allegations of fraud and unfairness on the part of Perrin, as charged in the complainant’s bill, are not sustained by the proofs in the case. It is not at all improbable, that the parties to the arrangement of 1827 may have had some loose conversation, prior to the consummation of the agreement, upon the subject of giving back the release after the trial, for the purpose of restoring them to their previous rights under the old judgment. But no one who had any correct ideas of legal proceedings could for a moment have supposed that a release to a witness, executed under an agreement that it sh'ould be delivered up by him after the trial, would restore his competency; or that a judgment, when once discharged by the execution and delivery of a valid release to the judgment debtor, could be restored ao-ain, so as to continue the lien thereof on the lands of third persons, merely by delivering up such release to the complainant. And as the arrangement was finally consummated, by the execution of the written instruments, under the advice and in the presence of the counsel in the cause, it is wholly incredible to suppose that the papers were executed and delivered under any such agreement. Besides it appears from the evidence that, at the time when the bond and warrant were executed and delivered, the conditions upon which such judgment was to be enforced were put into the form of a written stipulation, signed by Perrin and delivered to the parties who had executed the bond and warrant, or to some of them for the benefit of all. Whatever, therefore, had passed between the parties or any of them by parol, previous to that time, as to the conditions upon which the bond and warrant were to be enforced, w-as merged in this written agreement. And parol evidence as to the previous declarations of any of the parties, showing a different agreement, must be laid entirely out of the question in the decision of the cause.

Again ; the execution of a release, to restore the competency of a witness, under a secret agreement with him that the release should be given up and cancelled after the trial, for the purpose of restoring the parties to their former situation, would be a fraud upon the adverse party and an imposition upon the court. No party to such a fraudulent agreement can therefore come into court, as a complainant, to be relieved because his adversary has not carried such an agreement into effect. This disposes of so much of the complainant’s bill as seeks relief on the ground of the alleged agreement to take Back the release and deliver up the bond and warrant after the trial should have taken place. The giving of the note for two thirds of the judgment, long after that trial, and after the complainant knew that a judgment had been entered on the bond and warrant, was also a voluntary waiver of the alleged agreement to deliver them up, even if such an agreement would be legal and had actually been made.

From the evidence there is not the least reason for believing there was any intent to impose upon the complainant, by inducing him to suppose the judgment was a lien upon his lands when Perrin knew it was otherwise. The complainant’s counsel is undoubtedly right in supposing that the first judgment was not in fact a legal lien upon the complainant’s land, in 1827. It ceased to be a lien as against bona fide purchasers at the expiration of ten years from the docketing thereof, even if they had actual uoticc of its existence, unless they took their title subject to the payment thereof as between them and the judgment debtor, or with a view to defeat the lien of the ci editor. (5 Paige’s Rep. 493.) And it made no difference as to the continuance of the lien of the judgment, against bona fide purchasers, that the nature of the judgment was such that the collection could not be enforced within the first ten years after the docketing thereof. The party should have taken a mortgage upon the lands of Stone, as a security against the failure of a doubtful title, instead of a judgment the lien of which might cease before the question of title was finally settled. Whether the judgment was not in 1827 a subsisting lien upon the two lots quitclaimed by O. Stone, is a matter of more doubt. If the whole transaction in relation to those two lots was not a covinous proceeding to defraud his father’s creditors, as it most probably was, the title had passed out of O. Stone by the sale under the judgment against him. But if the sale under that judgment as well as the original transfer from the father was merely fictitious, the lien oí Perrin’s judgment never was divested. O. Stone never having paid anything, and having taken back the note given by him to his father for the consideration or pretended consideration of the deed, he was not a bona fide purchaser within the intent and meaning of the statute limiting the lien of the judgment to ten years. Injustice has been done both to Crosier and Chubb in these transactions, under a mistake of their legal rights as to the lien of the judgment and as to the property which should be first applied to satisfy the same if the lien still continued as to all the lands, of which S. Stone was the owner at the time of docketing that judgment in -1812. 1 am inclined to think, however, that Perrin was equally ignorant of his legal rights with Crosier and Chubb ; that if there was any fraud in the case it was a fraud and imposition practised upon all three of them by Orín Stone and his father, to save the lands of the latter from the lien'of the judgment; that in 1827 O. Stone knew that the two lots conveyed to him without consideration ought in justice to-be first applied to satisfy the judgment against his father; and that he intentionally concealed that fact from Perrin as well as from Crosier and Chubb, for the purpose of inducing the two last to join him in the new judgment and to obtain a release of the judgment which was then a subsisting lien upon the two lots before referred to. It is probable, however, that he-too was ignorant that the lien of the judgment was at an end as to bona fide purchasers ; as the counsel employed by the Stones to defend the suit brought against Richardson made the same mistake as to the question of law.

The new judgment W'as not without consideration; as the old one was still valid as against S. Stone, and against all the lands formerly owned by him, not then in the hands of bona fide purchasers for a valuable consideration. And if this court can relieve against a mistake in law in any case where the defendant has been guilty of no fraud or unfair practice, which is at least very doubtful, it must be in a case in which the defendant has in reality lost nothing whatever by the mistake, and where the parties can be restored to the same situation, substantially, in which they were at the time the mistake happened. Here the mistake was clearly one of law, and not a mere mistake of fact. The complainant and Chubb had both received their deeds in 1816. If they had not mistaken the law, therefore, they must have known that a judgment against their grantor was not a subsisting lien upon their lands in 1827, even if they had not been apprized by the original stipulation, which was present when the second bond and warrant were executed, that the original judgment w'as taken as early as 1812. Neither is it possible in this case to restore the defendants to the same situation in which Perrin stood, in reference to his rights, before this mistake in law occurred. The first judgment being released, the lien thereof was gone as against the two lots conveyed to O. Stone without any consideration paid therefor. And upon the faith of the arrangement made with the complainant and others, in 1827, Perrin lost the advantage of a compromise with the adverse claimants as to his part of the lot, and subjected himself to the costs of a new litigation against his grantees ; as those who had given the second judgment insisted upon a further litigation for their benefit. Then was the time when they should have put themselves upon their legal or equitable rights, if they meant to insist upon any unfairness or want of consideration in the second judgment, instead of making a new arrangement to get one of their number released from that judgment.

I lay out of view in this case the objection of variance between the contract as set out in the bill and the one proved. For if that was the only objection to a decree in favor of the complainant, the bill should have been dismissed without prejudice to his legal and equitable rights in any future litigation ; instead of a general decree, which is conclusive upon the rights of the parties both at law and in equity. But for the reasons before stated I think the general decree in favor of the defendants was right. The same must therefore be affirmed, with costs.