source: Caselaw Access Project

license: Public Domain

text:
    John G. Leake and Bernardus Swartwout, junior, Appellants, And Melancton L. Woolsey, Nathaniel Platt, Robert Cochran, Jonas Platt, Zephaniah Platt, John Bailey, James Kent, William Bailey, James Bailey, and George Ker, Respondents.
    If one of many, ^‘reassign1his ‘“tei'est t0 a third person, who is acceptga^eh¿m”l>~ stitutionofthe anfndurse-UÍ ment be made gage and tondj that such third person, is ac«' from the pro-port-ion of the iiiiv mi nie made between the ín-;,t and second settlements. cep'eel in lit,u of the share •the assignor holds in the bond, and is -looked to for hi-i proportion accordingly, the hind will be exonerated awignor, on his assignee giving bonds for the balance of •an account between the mortgagee and the assignee, m which ihe assignee is de~ bited for the amount of the proportion, provided it appear that those bonds have been satistied, not-withstanding such satisfaction be under a settlement made after cancelling the original bonds of the assignee, by •ghing other securities, and at the time of giving the same, the assignee have notice, of an assigui,-ent of the bond and mortg'se by tbemortgagor,

      ON appeal from chancery, the case was this : The respondents, excepting Ker, had purchased of one Coll M‘Gregor, a large tract of land in the county of Clinton, for the sum of ° Vi. . . .£10,241 10s. Of this ,£2000 only being paid in cash) the residue was secured by a bond and mortgage from the purchasers, dated on the 24th of February, 1796, payable in four instalments ; three of ¿2000, and the fourth of £2241 10s. the first on the 1st of June, 1798, without interest; the rest on the first days of June, ’99, 1800, and 1801, with interest. At of .about the time of executing this bond and mortgage, Ker, W^S^™8 t0 buy out the interest of Cochran, agreed with M‘Gregor and Cochran, to be substituted in the place of Cochran with respect to his interest in the lands, and also with respect to his responsibility for the money secured to be paid by the mortgage. In consideration of being so substituted, Ker agreed to give Cochran .£100 for his bargain, and to repay him his proportion of the .£2000 cash, paid to M‘Gregor, amounting to the sum of £200. In consequence of these arrangements, M‘Gregor lent to ICer the £100 agreed by him to be paid to Cochran, and returned to Cochran the £200 received as his proportion of the £2000 paid down. A memorandum of the purpose with which these transactions were had, was made on the bond and mortgage in these words. “ I ac- “ knowledge and accept of George ICer, Esquire, in lieu of “ the share which Robert Cochran holds in the within bond, ' “ and look to said Ker for his proportions accordingly. New- “ York, 24th of January, 1796.” Cochran, on this, by the direction of Ker, conveyed his interest in-the lands purchased of M‘Gregor, consisting of one tenth, to Mrs. Ker. On the 25th of June, 1796, Coll M‘Gregor settled an account with Ker, on the balance of which there appeared due from Ker £16,334. In this account M‘Gregor debited Ker with £ 1100, for 2000 acres of land held with Platt and others. In satisfaction of the balance thus struck, and in pursuance of M‘Gregor’s desire, Ker gave his bond, (£3750 of which had been paid to one William Maxwell,) and for the residue the joint bond of himself and wife, payable one year after date, with interest at six per cent, to Isabella S. Fotheringham, between whom and M‘Gregor a treaty of marriage at that time sub-i sisted. Within two months after settling the above account in the antecedent manner, it appeared on a more accurate investigation, that some errors had crept in, which were by consent rectified, and by an indorsement on the last mentioned bond, the amount was reduced to £10,507 0 6d. On the 10th of November, 1796, the bond and mortgage from the respondents to M‘Gregor, were assigned by him to the appellant Swartwout, in part payment for an estate. Of this assignment ICer had notice about the last of November, 1796. Swartwout owing a large debt to the other appellant Leake, in order to secure its payment, assigned to him the bond and mortr ,, , Sa8s from the respondents, From an answer of the respondent Ker to a bill filed against him and others by the assignees of Coll M‘Gregor, it appeared that in January, 1798, Coll MeGregor, (between whom and Miss. Fotheringham a coolness then subsisted,) demanded of Ker the bond .which he and his wife had executed to her. In consequence of this, Ker obtained the bond from Miss Fotheringham, and carried it to M‘Gregor, in whose presence it was, with his consent, cancelled and burnt. Shortly after this transaction, an account was again stated between M‘Gregor and Ker, on which the latter was found indebted to the former '£10,507, exclusive of a loan of $5000. In satisfaction of these sums, Ker, with the concurrence of M‘Gregor, destroyed a declaration . of trust from the latter, for township No. 28, in Jessup’s patent. After this, the settlement thus made, was, at the. request of M‘Gregor, waved by Ker, who, having a bond and mortgage from one Hamilton and others to himself, assigned them over to M‘Gregor in full of all demands. M‘Gregor died since, insolvent. The bill below was against the respondents for payment of the debt of ¿£8241 10s. with interest; or that they might be foreclosed. The Chancellor ordered that Cochran’s one tenth should be considered as paid, and that it should be referred to the master to report, after deducting his one tenth, what was due on the mortgage; and that the same should be paid by the other original obligors. For this decree his Honor thus assigned his reasons: -
    Mr. President—In my opinion, the mortgage and bond, being the joint act of all the parties, could not, as* far as respected their respective interests, receive a new modification without the consent of all. It was, however, competent to M‘Gregor to receive the portions of one or more of the obligors, and to credit the amount paid, which tho’ placed to the account of all the obligors as so much paid of the debt, generally, would, if the whole proportion of the person paying was satisfied, operate to discharge him in any action for contribution between themselves. The operation of a release to one of the parties to a joint contract, to discharge all is strict! juris ; it is on the ground of a presumed satisfaction, and severance of contract which it implies. ' But though this is the doctrine of strict law, the same degree of rigour is not extended to devices calculated to produce the same effect in a more circuitous mode. So a Covenant not to sue, cannot, it has ^een be taken advantage of at law, by way of release. It is evidently in the power of a person holding a joint contract, so to direct a suit on it, as to charge only one oi-more of the joint contractors, and is every day’s practice at *aw 5 an<^ ^-be only remedy of the persons against whom the recovery is had, is to enforce a contribution from their co-not affected by the recovery. If however those have already satisfied their full proportions, no injury having arisen to the persons subject to such recovery, there is no point on which they can rest their claim to contribution. If this may be done tacitly, I can discover no good reason why it should not be the legal object of a covenant indirectly to avoid a process for contribution. If the indorsement in this case, had acknowledged the receipt of a sum of money equal in amount to Cochran’s one-tenth of the debt, it would not be deemed prejudicial to the interests of the co-obligors ; and whether it was actually paid in money, or agreed to be credited, on an arrangement between them, to substitute some other object existing in property or contract, could be of no consequence to any others than those who were the parties to the transaction mating such substitution. Assuming it then as legal, as well as equitable, in certain cases to permit the person complying with what is deemed his full proportion of duly on his contract, to be virtually, though not formally, discharged by the agency of the person with whom the joint contract is made, the next question is, What was the operation of the agreement in this instance ? The indorsement both in the bond and mortgage is, “ I acknowledge and accept of “ George Ker in lieu of the share which Robert Cochran “ holds in the within bond.” This part of the agreement is inaccurate in its language: it speaks of acknowledging and ac-. cepting of Ker, in lieu of Cochran’s share, which it is said he holds in the within bond; but however inapplicable the term hold may be, as descriptive of a duty, the former part of the sentence distinguishes, not the person of Ker, as instead of that of Cochran, but with precision, the acceptance of the person of Ker, in lieu of the share of Cochran; this is, in my opinion, a strong mark of the intent. There were ten obligors, and from the silence of the securities as to the inequality of interest,-or obligation in discharge of the debt, I think it is a legal inference, that all were equally to contribute to its discharge; there is no allegation of such inequality, and all the answers coacm In representing the debt as an equal pne on all the parties. If this is admitted, the share of Cochran was susceptible of exact liquidation by a simple arithmetical process, which only was necessary to reduce it to certainty. If so, the share of Cochran, in language, is as little subject to doubt, as if the parties had expressed themselves in the more terms, of the precise number of dollars intended to be considered as satisfied; and, whether the acknowledgment was, that he had received a certain sum, or that he had made an arrangement to credit a certain sum, in consequence of ICer’s responsibility to him, does not, in my opinion, materially vary the situation of the parties. In both cases, the other parties might be called upon to adjust the difference of payment by contribution, if in the event of a suit on the joint contract, an additional sum should be exacted from him, beyond his proportion. By way of fixing this intent more determinately, it is added, that he looks to said ICer for his proportion accordingly. This looking to Ker for his proportion of Cochran’s, seems to be in pursuance of the same idea; not that he looked to ICer as a substitute in the contract for Cochran, but to Ker for the proportion of Cochran. Indeed, it can scarcely he presumed, that the parties could have supposed a complete substitution legally practicable ; it could not have entered into their imagination, that Ker could he considered as a co-obligor with the others ; and if not, the mortgage, being merely a collateral security for its discharge, must be considered as invalid to the amount of the satisfaction on the bond. I do not however mean to assert, that it was not in the power of the parties so to modify this transaction, as to retain the lien on the lands, and virtually to discharge the person of Cochran ; yet that if this was done by way of release, it would, in legal operation, destroy the whole instrument, cannot be urged with effect against the mode adopted by the parties. The complainants received the bond and mortgage with the indorsement to them, calculated to disclose the nature of this transaction. Whatever might be the consideration or inducement as to Ker, the contract made with Cochran, and his parting with his share of the land to Ker’s wife, was a sufficient consideration as to him; and whatever complexion business might assume, as between McGregor and Ker,
      right of creditors not being affected by it, it could have no retrospective effect, so as to avoid the contract made with Cochran. As between Cochran and M‘Gregor it was conclusive, and it does not lie in the mouth of the complainants, now representing M‘Gregor, to set up subsequent transactions, to , . , r , ° t J. 1 , , . ... which Cochran was a stranger, to impeach a bargain which is interested in maintaining, nor ought they to be permitted to charge the other mortgagors with a sum of money, which the person from whom they derive their rights, has relinquished, as part of the money secured by this mortgage. It cannot therefore be necessary to trace the winding steps of M‘Gregor, Ker, his wife, and Miss Fotheringham, detailed in the answers of the latter in another cause, which were used at the hearing; for all those relate to transactions subsequent to the agreement, in consequence of which the indorsement was made, and cannot possibly affect it. The letters of the several defendants are conceived in general terms, and nothing is to be collected from them prejudicial to their interests ; for the expressions in these letters would equally apply to half, or a smaller portion of the money secured, if no more remained unpaid; but a-better reason is, that supposing Cochran’s share satisfied, no act of theirs, as against the other mortgagors, could place it in statu quo, nor could it possibly replace Cochran, as a party liable. And if not, it would certainly be very inequitable to compel them to pay his proportion, without a possibility of resorting to him for a contribution. From this train of reasoning, I am of opinion that Cochran’s one-tenth must be considered as paid, and that it be referred to a master to report the sums due, rejecting the one-tenth.
    Against this, the appellants contended, 1st, That whatever might be the effect of the agreement between M‘Gregor, Cochran, and Ker, upon the bond, at all events, the land remained liable, as Ker took Cochran’s conveyance, subject to the mortgage. 2d, That the settlement with M‘Gregor, by Ker, was fraudulent, and after notice of his assignment, as was evident, 1st, from the non-production by M‘Gregor of the bond and mortgage, at the time of this pretended settlement; and was in itself a sufficient reason to presume an assignment. 2d, From the known insolvency of M‘Gregor. 3d, That allowing the first settlement to have been good, still, when the bond to Miss Fotheringham was given up and cancelled, it was •as if it had never been in existence, and then the subsequent settlement was clearly fraudulent, being after notice admitted.
    On behalf of the respondents it was insisted, That the words of the indorsement clearly exonerated the land from Cochran's proportion, M'Gregor having thereby accepted Ker as his debtor for that amount. That this was evident, 1st, From the account, in which Ker is charged £1100, for the~ land held by him, with Platt and others. 2d, The money due on the bond and mortgage, was not payable till the expiration of 2, 3, 4, and 5 years, but on the bond given by Ker it was due in one year. 3d, The return of the ¿£200 to Cochran, evinced a new transaction, in which the original liability of Cochran was done away.
    Harison for the appellants.
    It is contrary to reason, to suppose landed security should be relinquished for personal. The intention of the parties, from the words of the indorsement, was, that the person of Ker should be substituted for that of Cochran, but that the land should remain charged. The estate in it was vested in M‘Gregor by the mortgage, and it could not be divested, without a compliance with the condition. It was impossible to effect this by the indorsement ; for, nothing short of payment is a performance of the condition. The estate of the mortgagee, on executing the deed, passes out of the mortgagor, and upon common law-principles, the mortgagee is seised of the fee, defeasible tiy performance of the condition. 1 Pow. on Mort. 226. If then the estate was in M‘Gregor till performance of the condition, and that condition is now unperformed, the estate thus in him passed to his assignee, from whom we claim, and would be entitled, in an ejectment, to set up this our title. Co. Litt. 206 to 208, b. Till a reconveyance , the legal estate remained in the mortgagee and his assignees. But it is contended, that the settlement made between Ker and M'Gregor, is equivalent to a payment pro tanto, and conclusive on the appellants. We insist, however, from the facts, that it appeará Ker had notice of the assignment by M'Gregor, and that any payment afterwards made by Ker, was in his own wrong. In order to affect with notice, it is not necessary that it should he written . If the circuit~stances be such as ought to induce an inference, that an assignment had been made, it is sufficient. The absence of the bond and rnort~age, on the first pretended settlement, was equal to this. But on the second, when the first was cancelled, a new bond and new modes of payment adopted, the notice is admitted. On this point, therefore, if on no other, we conceive the decree must be reversed.
    Pendleton contra.
    It is needless to say any thing on the necessity of a reconveyance, to revest the estate of the mortgagor. For what has been urged on that head, applies only to cases where there has been a forfeiture, and die estate rendered absolute in the mortgagee. Here, however, if the estate is discharged from the tenth of the mortgage money, it is by a payment made before forfeiture. The first instalment on the bond was due in June, 1798. The most disputed settlement by Ker, was in the January antecedent. But the payment, as it in fact was, which then took place, was not of the money due on the bond and mortgage. That had been, as to Cochran and his substitute Ker, previously satisfied by the bonds in June, 1796, at which time M‘Gregor was owner of both bond and mortgage. The transaction which then topk place was a complete act; and surely at that time he had a right to take payment of his mortgage money in any way he pleased. He did then, on that day, as appears from the account in his own hand-writing, receive, in a manner pointed out by himself, payment of ¿£1100 from Ker, for the 2000 acres of land, held by him with Piatt and others, the very identical share of Cochran in the original purchase from M‘Gregor. The subsequent assignment to Swartwout could never defeat this payment, thus fairly and fully made. After this settlement, so perfected and carried into execution, whether the bond by which it was effected was destroyed, or in whatever way satisfied, nothing which took place relating to it couid revive rights long previously distinguished, and that in favour of persons who then had none. By the words of the indorsement, Ker was substituted for Cochran’s portion in the bond; for that portion the land was only a security; when, therefore, that portion was paid by the bond to Maxwell (which has been fully discharged) and the bond to Miss Fotheringham given for the collective debt of Ker, the land was necessarily exonerated. In the indorsement, McGregor says he looks to Ker. This is a strong declaration that he does mot look to the land. If so, it is a criterion on which the exposition of the indorsement is to be made. For in the intent is the governing principle. 3 Atk. 135 . And that the intent should be to look to the person of Ker, is not so surprising, if we consider Ker’s personal transactions with M‘Gregor then amounted to £16,000. Besides, there was an inducement to accept Ker s personal security, and exonerate the land. It accelerated the payment five years. The rate of interest was altered from 7 to 6 per cent. How then could land continue liable for .a sum at seven per cent, when a bond, was given for the same sum at six ? It is plain, that to obtain payment at an early day, the land and one per cent, was given up. To discharge land of a mortgage debt, any common declaration or discharge is sufficient. 1 Pow. on Mort. 187. The indorsement therefore is adequate. Then, if the debt was discharged, the land followed of course. Martin ex Dcm, Weston v. Mowlin, 2 Burr. 979. On this principle the doctrine of notice will apply most forcibly to the appellants. The indorsement on the bond and mortgage purported an exoneration of the land, and the personal substitution of Ker. The assignees, therefore, of such bond and mortgage, received them after a full notice, written on the instruments. The subsequent payment of a prior personal substitution for the share of Cochran, could not revive those rights, which that personal substitution, and the bonds thereon given, had extinguished.
    Hamilton in reply.
    It is on that subsequent payment We think we have a right to rely. When it was made, Ker had full notice of the assignment to Swartwout. Instead of settling, or paying as it is termed, he should have withheld, till convinced that his payment would not prejudice the rights he knew were transferred to Swartwout. Acting otherwise, evinced a spirit of favouritism. On the point of substitution by the indorsement and conveyance, it must be held, that when Ker took the estate and place of Cochran, he took them with all the liabilities they were under, when held and occupied by him, into whose shoes he stepped. If the payment of a proportion of the mortgage by Cochran, would not extinguish in M‘Gregor the right to charge all the land with the residue, it could not, when made by Ker, deprive him of it. Therefore, allowing the substitution in the fullest extent, and the total exoneration of Cochran, that was no discharge of the land. All that can be effected by the payment of Ker, is a diminuIon the charge on the land, not a diminution of the land charged. If, by his proportion, continuing liable, he pays twice, that is a matter of contribution between him and his co-obligors, but nothing to us, who receive only our original sum. At law, the indorsement could never operate to discharge the person of Cochran; in equity, it might. But in equity it never would be considered as being a pro tanto discharge of the land from the mortgage. Therefore, though equity, perhaps, would not have allowed JVPGregor to proceed against the person of Cochran, it would have permitted a foreclosure against Cochran*s share in the hands of Ker, If this would have been endured in M‘Gregor, certainly in his assignee. The whole of the settlements relied on, are bonds for bonds, and therefore no payments. The facts, however, warrant a presumption, that the bond to Miss Fotheringham was in consideration of marriage, and as aportion; when the marriage did not take effect the consideration failed, and the money intended to be secured to Miss Fotheringham became due to M‘Gregor, as his original property in the bond and mortgage. To pay money for that proportion of the, bond and" mortgage afterwards- to M‘Gregor, was to make a payment on that which Ker knew was assigned to the respondent Swartwout. It consequently was done in his own wrong, and we have a right to look for the whole amount from the persons bound, and all the land originally charged.

       See ante page 59, note. †.

       Whatever i~ sufficie.at to put the party QZI. iaquiry, is enough. Smith v. Low, 1 Atk. 489. And if a mortgagee be affected with notice, his assignee will take subject to it. Whalley v. Whalley, 1 Very. 484.

       Sunth v. Parkhurst.

   The majority of the court being of opinion with the Chancellor, for the reasons he assigned, it was ordered that the DECREE BE AFFIRMED.

Spencer, J. contra. The questions arising in this cause, are principally—1st. What is the legal effect of the indorsement made on the bond and mortgage, given to Coll M‘Gregor by Robert Cochran and nine others, whereof Ker is not one, in these words, “ I acknowledge and accept of George “ Ker, Esq. in lieu of the share which Robert Cochran holds “ in the within bond, and look to said Ker for his proportion “ accordingly. New-York, 24-th Februaiy, 1796 ?” 2d. Whether, from posterior transactions, the appellants have lost their right to insist on the mortgage as a security, as well for the nine-tenths, as for the one-tenth part of the money thereby secured', and due from Cochran, provided the above indorsement did not, in judgment of law, operate to discharge CochTan's share due on the mortgage ? I shall consider the first question independently of the alleged understanding of the parties. This, for three reasons—1st. Because this is not a controversy between the original parties to that transaction (M‘Gregor and Ker), but between the assigneeof he former and Ker. When this assignment was made to Swartwout, by M‘Gregor, it was for the whole sum expressed in the mortgage. The indorsement, to be sure, was on it; and by the true exposition of that indorsement, was his interest and right acquired in it to be determined, without reference to any conception of the parties, as to the operation of that indorsement. 2d. Because parol evidence, substantially to vary or impugn an agreement in writing, even as between the • same parties, cannot be admitted; much less between one of the parties and a third person, who has acquired a right under such agreement. 3d. Because, whatever M‘Gregor might say in relation to his understanding of the intent and operation of the indorsement, ought not to be regarded; he having, for a full and valuable consideration, assigned the mortgage as due in toto.; his subsequent declarations to the contrary, would evince that he had been guilty of a fraud in that assignment, and this would justly derogate from his testimony. If the rule, that, in assignments of choses in action, the assignee takes them subject to all the equity between the parties, does obtain upon the assignment of a mortgage, and of which perhaps there is doubt, still it cannot reach a case of this kind, where the parties wholly relied on a written stipulation, and must be bound by its construction. The indorsement will not admit of a literal construction. Cochran held no share in the bond, but was held by it to the payment of the sum expressed. M‘Gregor accepted Ker in lieu of Cochran, in the within bond, and was to look to him for his proportion accordingly. It is to be recollected, that the indorsement was both on the bond and mortgage in the same words; and it is to be presumed, because universally the case, that the mortgage had reference to the bond; and no reason can be assigned why, when the indorsement was made on the mortgage, Ker should be accepted in lieu of Cochran, as to his liability on the bond only, if the parties had intended that M‘Gregor was to renounce the real security he held. The expression of the one, is the exclusion of the other, especially when this indorsement is made on the mortgage, and refers to a bond. If collateral facts, existing- at the time of the transaction, be resorted, to, and if we are to imagine M‘Greg0r actuated by his interests, these considerations would unite in evincing that it could not have been his intention to wave the security he had, but merely to substitute Ker for Cochran, so far only as regarded personal responsibility. But in making up my opinion on this point, I put out of view these •circumstances, and look to the words of the indorsement, as the only true indicia of the intention of the parties. The agreement only extends to the bond, and I cannot say, in contradiction to that, the parties meant the mortgage. Have --subsequent transactions varied the case so far, as that either the debt has been forgiven, the bond discharged, as respected Cochrari?s proportion of the debt, or the mortgage reduced by as much as that proportion-? The respondents rely much on the exhibition of an account by M‘Gregor, against Ker, in June, -1796, wherein he charged the latter with Cochran’s proportion of the bond and -mortgage, and also upon the" execution of a bond by Ker and his wife, to Miss Fotheringham, by the directions of M‘Gregor, as a further security from Ker, for Cochran’s proportion of the debt in the bond and mortgage, payable at a shorter period, and at a different rate of interest than was required by the bond and mortgage given by the respondents Originally "to M"‘Gregor. These -transactions are relied on in two points' of view: first, as evidence that Cochran was-discharged from his liability ; and, secondly, as an extinguishment of the debt so due from Cochran. As regards the first, I am clearly of opinion that the indorsement on the bond and mortgage did not, in law, exonerate-Cochran from his liability. In the case of Rogers v. Payne, 2d Wil. 376, an action of covenant was brought ^or ^le non-payment of a sum of money, the defendant pleaded a discharge, in the nature of a "release withoufdeed, in satisfaction of all demands. -Upon demurrer, it was objected for the plaintiff, that the plea was ill; for that a covenant to pay money, which is by deed, .cannot be discharged without deed, and of that opinion was 'the court, and gave judgment for the plaintiff. If, then, the indorsement only affected the bond, -and if -that could not, in law, be discharged without payment or release, it follows, that the indorsement can in no Way have effect. As respects the extinguishment, nothing can be more clear or better- settled, than that, to extinguish ‘"a debt, something of a higher nature than the debt to be extinguished must be given. To give one bond, for a debt secured by another, is no extinguishment. Had the bond given by Ker and wife to Miss Fotheringham been paid, the case indeed might have been materially changed; but after the assignment of the bond and mortgage by M‘GregOr to Swartwout, and after notice from the latter to Ker, the bond to Miss Fotheringham was, at the instance of McGregor, given up, can-celled and burnt; and when Ker might and ought to have regarded the notice from Swartwout, that the whole mortgage -was his, and he alone entitled to be paid, he proceeded to enter into other arrangements to pay M‘Gregor; and now insists on such payment, made, as I conceive, in his own wrong. Had M‘Gregor retained the bond given to Miss Fotheringham, after it was in his custody, and then insisted on Ker’s providing differently for the payment of it, the case would have been very different from what it is '; but that bond was destroyed, Ker then was at liberty to have refused payitag M‘Gregor by so much as the amount of Cochran’s share came to; this he "did not, 'though he had notice-; but aftei-wards, at a different time, satisfied IvFGregor; 'first, by a sale to him of lands at 100 per cent, more than they cost him-; and subsequently, by assigning another bond and mortgage. I have paid due attention to the authority cited by the respondents’ counsel, and I agree with him, that a mortgage may be discharged by parol, or may be forgiven, because it is not a conveyance of land within the statute of frauds; but this mortgage has never been discharged, or forgiven, or paid, until after it was assigned. I agree further, that the payment of the money will draw the land after it, provided the payment be to the right party. A bond, however, cannot be so discharged. On the whole, it appears that the appellants or respondents must lose so much as the share of Cochran amounted to. The appellants gave a’full consideration for the mort.gage; the respondent Ker has paid to the amount of Cochran’s share, but he so paid it to a person not having a right to receive it, with full notice not to pay him ; he paid it, too, without any legal necessity, consequently he ought to pay it again, and to the right person. I am of opinion, that the decree ought to be reversed, and that the appellants be permitted to insist on a foreclosure, as well for the amount of Coch-ran’s.proportion of the debt, as the .residue of the mortgage, -


author: Lansing, Chancellor.

text:
    Thomas Jenkins, against the President, Directors, and Company of the Union Turnpike Road.
    imtfTncorporating a comtiausé vesting certSn^évent in the people,’ ut semlf10 The meresubscribaTumpike ™ Co. where a momTof each share i^ordejat that tune, cstin tbeTtocic if the money and’the com’ pany cannot f™the1 a-*10" mount, as it is tom^TTaüse •of forfeiture of •Tribedftakes away the right -them, or momey ordered to be paid upon "them. '
    ERROR, on the judgment of the supreme court in a suit between zthe same parties, in which the now plaintiff was defendant below, and the now defendants, plaintiffs. The case was,as reported in 1 Caines’s New-York Reports, 381. Up-°n ^ decision there pronounced, the plaintiff assigned the following errors. "1st, That the action being founded upon act entitled, “ An act to establish a turnpike corporation, “ for improving the road from New-Lebanon to the city of “ Hudson,” passed the 3d of April, 1801, as set forth in the declaration, it is not alleged, nor in any way stated, that the s£dd Thomas Jenkins, at the time of subscribing, or at any other time, paid to the said commissioners ten dollars, or any other sum of money, on each, or any share of the said stock, ^ *be sa^d Thomas Jenkins would become entitled to the said shares. 2d, That it does not appear by the said dec^arati°n, that the parties were mutually bound to each other; but that the said commissioners were at liberty, at any time before the surrendering up to the said company the said subscription, to erase the name of the plaintiff from the said subscriptions, and to receive others in the place thereof; nor does it appear that the said commissioners, or the said president and directors, ever did any act before the commencing the ac-¡¿on below, by which they were bound, or in any shape liable to the said Thomas Jenkins, for the said stock, by virtue of sa¡¿ subscription. 3d, That it does not appear in the - said declaration, that there was any determination of the president, directors, and company of the said turnpike, for the payment of the said several sums of money by the said stockholders, according to the conditions and terms of the said subscriptions. 4th, That the promises set forth in the said declaration are void, for want of consideration. 5th, General errors. On these grounds it was insisted the judgment ought to be reversed.
    The defendants contended, it ought to be affirmed for the following reasons. 1st, Because it doés not appear on the record, that ten dollars was by the act required to be paid on «ach share subscribed, and, as it does not appear, it cannot be ' assigned for error. 2d, Allowing it might be so assigned, as the obligation prescribed by the act is to the president, directors, and company, for the whole amount of twenty-five dollars upon each share, and as the payment of ten dollars upon each share was for the benefit and use of the company, the non-payment of this latter sum cannot be assigned by the plaintiff as an objection to the payment of the former, because he would then be permitted to take advantage of his own wrong. 3d, Because the commissioners were authorized only to receive, and not erase subscriptions, and by admitting the subscription, were bound to consider the plaintiff a stockholder, until they should declare his shares forfeited; and by their calls upon him for his instalments, they acknowledged his right to call on them for dividends. 4th, Because the president and directors are the only organs, through or by which the affairs of the company can be conducted. 5th, Because the subscription passed to the plaintiff an interest and right in the stock of the company, by virtue of which he was entitled to dividends, and created therefore a consideration sufficient to support his promise, for breach of which, the action was brought.
    Woodworth, Att’y-General, for the plaintiff.
    Against going into the first error we have assigned, the defendants insist, that as the circumstances we there rely on do not appear on the record, we cannot avail ourselves of them, though they are specified and required by the act of incorporation, under which the present suit was brought. To decide on the force of this objection, we must inquire whether this be a private or a public act. If it be the latter, then the court must take notice of it, and we may avail ourselves of all its provisions. It is not necessary to plead a generhl statute, 19 Vin. Abr. Letter C. pl. 8. And every statute is general which may apply to every man. Ibid, in notis. This is clearly such a statute, for every man may be a stockholder, and every man may use the road, and must pay. So every act which concerns the King, though the matter of it relate to individual persons or things, is a public statute, of which the judges ex officio must take notice. Therefore the 2 Ph. & M. concerning the trade of a dyer, is held to be a public act, because the forfeiture goes to the King. Ibid. pi. 11. in notis. Within this principle, the act in question must be a public act, for, after a certain per
      , by the 12th section, “ the right, interest, and proper-- “ ty of the said road shall be vested in the people of this. « state.” Also, by the act ordering the publication of the laws , the persons appointed to revise them,, were directed as a matter of “ duty,” to insert in a separate volume, the titles of acts of a partial or local nature.. In executing this direction, they have, in the 2d vol. Rev. Laws, 518, placed under a particular title of “ special ,” many laws but amongst them this is not inserted, and therefore they must have considered it a public statute. The court below have acted on this- as a public law, and referred to it in their decision, in r r , , . , . . ’ . consequence of the counsel now opposed to us, having m then-argument treated it as a general statute. On the face of this law, it will not support the present suit. It prescribes a peculiar remedy, on failure of the party subscribing for stock. His shares are to be forfeited. It was not therefore the intention of the legislature to permit an action at law. The loss of the ten dollars ordered to be paid, to raise a fund of $20,000 to-commence the road, and the forfeiture of the share, was the punishment inflicted by the act for a non-compliance with the subscription engagement. The subscription created no contract, and gave no rights. It was merely to ascertain the stock taken up. But at all events, to acquire a. right in that stock, the payment of $10 was necessary, and ought to have been averred. Without payment, the contract was nudum pactum, as it could not be enforced against the corporation. To give a right, two acts were made necessary, subscription and payment. A compliance with one, gave no tide to demand the stock, and unless both parties were bound, there was no contract in law. Cooke v. Oxley, 3 D. & E. 653. The consideration must be apparent on the record, and set forth in the declaration. That the promise is stated to be in writing, is not sufficient  to show a consideration. Rann v. Hughes, 7 D. & E. 350, over-ruling in this point, Pillans v. Van Meirop. Wherever one thing is to be the consideration another,- though there be mutual promises, performance must be averred and proved. Callonel v. Briggs, 1 Salk. 112. The payment of the $10 ought, therefore, to have been expressly stated, as it was the sole ground of right against the" company. . For,’ unless it was by this means acquired, the payment of the $10 would have been without consideration. The payment of these SlO, was a condition precedent; therefore, till that was performed, no right could accrue to Jenkins. 1 Salk. 172. Goodison v. Nunn, 4 D. & E. 761. The declaration therefore should show a tender and refusal of the stock. The same doctrine is found in 1 Vin. 338. tit. Actions of Assumpsit. (Z. 3.) It is not enough to state the demand of S3, on an order by the president and directors. This does not evince that the plaintiff had the stock ; and if he had not, he was not obliged to pay the order. The not setting forth a due consideration, is matter of substance, ever available of, and not cured by, a verdict. Foster v. Smith, Cro. Car. 31. 1 Sid. 182 . Cro. Jac. 503 . Doug. 679 . With respect to the order of the president and directors, it is sufficient to observe, that delegated audiorities must be strictly ■pursued. Tiie power is given to the president, directors, and company, and though only the two former may be the active parties, the order should have been in the names of all. The defendants relied in die court below, on the contract of the now plaintiff; let them therefore confine themselves to it, and show the breach within its letter-
    . , Williams, and W. W. Van Ness, contra.
    This is an action upon an express written contract, subscribed by the plaintiff in error. Its form is prescribed by the act incorporating the company. Its terms are explicit and intelligible, and the legal obligation imposed by it, equally clear. The plaintiff, conceiving that sufficient matter in law did not appear upon the record in this cause, to support the judgment of the court below, has assigned four specific causes of error, to which is added the general assignment. In order more clearly to comprehend the force of these objections, it will be proper to read the contract on which the action is founded, as stated in the declaration. “ We, whose names are hereunto subscrib- “ ed, do, for ourselves, and our legal representatives, promise “ to pay to the president, directors, and company of the Union “ Turnpike Road, the sum of twenty-five dollars for every “ share of stock in the said company, set opposite to our respec- “ tivc names, in such manner and proportion, and at such time “ and place, as shall be determined by the said president, di- “ rectors, and company.” Before examining the errors assigned, it may be necessary to state what may be assigned for error, and whether that which is contained in the first error can be the subject of such assignment: that is, whether mat-ter dehors the record can be assigned for error, and whether the matter now assigned does appear on its- face. The errors all point to supposed defects in the declaration. But if we can show, that what is now assigned, could not have been tirged in arrest of judgment, then the court will not reverse the judgment. It does not appear, from the recorf that the act contains one word of payment to be made at the time of subscribing. It alleges only, that- the plaintiff did subscribe ;• not that any sum of money was to be paid. Therefore, nothing respecting non-payment can be assigned for error, unless permitted to search the act and travel out of the record. The rule is, nothing extrinsic, nothing which does not appear oil the face of the record, can be assigned as error. It is laid down, in 3 Black. Com. 407, that a writ of error lies only “ upon matter of law arising upon the face of the proceed- “ mgs.” So, 3 Woodes. 359, 60, “ if either party be dissa- “ tisfied with the judgment of the court pronounced, either “ on demurrer or arrest of judgment, (which, as already men- “ tioned, must relate to some matter apparent upon the face “ "of the record) the record may be removed, by writ of error, “ into a superior tribunal, in order to the reversal or affirmance “ of the former judgment.” A further reason why the first error assigned cannot be maintained, is, that it discloses matter which ought to have been pleaded ,• and it is a general rule, that what may be taken advantage of by plea, cannot be assigned for error. Com. Di. tit. Pleader, (3 B. 16.) Cro. Eliz. 4. In the present case, the declaration did not state the act as ordering payment of the $10. The now plaintiff, to avail himself of it, ought to have disclosed it by way of plea, and then we might hax'e traversed, or demurred, or taken issue on the payment. It was enough for us to set forth only so much of the act as made for ourselves. A declaration need recite no more of a statute than is pertinent to the action. Com. Di. tit. Pleader, (2 S. 3.) Ibid. Action upon Statute I. The residue should have come from the now plaintiff!/ In Potter v. Read, Cro. Jac. 139, a second error assigned, xvas, “ because the plaintiff founded his action upon “ the statute, and recites only such part thereof, whereby he “ would charge the defendant generally, whether he hath as- “ sets or not; and it appears, by the other parts of the act
      M pleaded by the defendant, that he is not chargeable, unless he hath assets of the money received upon the sale of the “ lands, or "woods, or debts of Sir T. G. so, the statute is not “fully recited by the plaintiff. Sed non allocatur, for the “ plaintiff reciting what made for his advantage, the defen- “ dant may plead the residue if he will.” The same doctrine is found in Cro. Jac. 506 , and in Cowp. 665 . That this is a public act, we deny on the authority of the act cited by the Attorney-General, 1 Vol. Rev. Laws, 620. By the first section, all the public acts .are directed to be contained in the first volume of the laws. This act is not there. It is within the description of a private act. Com. Di. title Parliament, (R. 7.) 4 Rep. 76 . A Turnpike act is no more a public statute, than one incorporating a bank. As to the clause, by which it is enacted, that on a certain event the road shall go to the people, it means no more than that it shall become a common road again. But allowing that the declaration is not so full as it might have been, it may be questioned whether any advantage can be taken of .it now. After verdict, many imperfections are cured, w hich would, if urged before, have been fatal. 3 Black. Com. 394. 1 Sell. Prac. 523. 2 Wills. 261 . 3 Burr. 1725, Weston v. Mason. For then, every thing will be supposed proved, which .must at the trial have been established, to entitle to a recovery, 1 Wills. 255 .On the point of consideration, there can be no doubt,; mutual promises are sufficient in law to create good considerations. These, by the subscribing the note, were raised. On the one hand the plaintiff promised to pay, and on the other, the company promised to receive him as a stockholder. Suppose a man sells a horse for $100, and $10 to be paid down.; in a suit by the vendor, can the vendee say the contract.is annihilated, because he did not pay the $10 ? The words legal representatives evince, that the payment was not to be simultaneous with the subscription. The legislature intended the bargain and contract to be complete, on the mutual promises resulting from the subscribing. The clause empowering to cause to be forfeited the shares of any defaulter, was introduced to give a new and superadded right to the corporation, which was not incident to their nature. It was a cumulative remedy. But this does not abrogate .their inherent right to sue on all contracts made with them. A lessor may have a remedy on his covenant, 'without losing his right of distrainmg, or re-entry. So that possessing one remedy, is no argunient for losing all others. The order made by the company is stated according to the only manner in which it was possible to have been made; that is, by'the'president and directors. They were the constituted agents of the compan)', and' to state their acts in the line of that agency, is to state the acts of the company,
    Harison, in reply.
    The act furnishes no one word to authorize the idea that the subscriptions are recoverable by suit." In actions founded on statutes, the rule is, that where no remedy is given, the common law will interpose and afford one ; but where the statute prescribes a remedy, no other can be' resorted to. Saying the remedy is cumulative, is a violation-of all principles. On the point of consideration it is manifest, that had Jenkins brought an action against the president, directors, and company, for his proportion of the toll, they might have replied the non-payment of the $10, and it would have been conclusive. If so, they were not bound to him, and consequently he was not bound to them. This, then, is a clear nudum pactum ex quo non oritur actio.. Cooke v. Oxley, already cited. Two acts were necessary; subscribing and paying. To take this case out of the general rule, it ought to be shown, that the shares vested by the subscription. Latham v. Barber, 6 D. & E. 67. Allowing however the contract to have been good, the judgment must be reversed; for the order set forth by the pleadings is not in conformity to the contract relied on. It is to pay according to the order of the president, directors, and company; the order is by the president and directors. If I engage to pay according to the order of A. and B. you must show that A. and B. made an order. If not, á defective title is shown, not an actual title defectively set forth. This is a fatal circumstance, and not cured by verdict. Rushton v. Aspinall. Doug. 679. 2 Lev. 152 , and the cases cited by the Attorney-General. The company have not pursued their power of making the order according to the words t>f the act. It is a delegated authority, and must be strictly pursued. Fronting v. Small, 2 Ld. Ray. 1408. 2 Bac. Abr. 7, 8. This also is conclusive against the judgments.

       After payment of principal and interest at the rate of 14 per

       1 Rev. Laws, 620.

       2 Rev. Laws, 518.

         See the note in 1 N.Y.T.R. 386.

       Thorpe v. Thorpe.

       Cooke v. Samburne.

       Lenneretv. Rivet. Where ationsare deciarodon,perboth must be ?Heged jjuid meut be good, the other bad, judgment on a general ^'csted'VlU be

       Rushton v. Aspinall.

       Margaret ease.’ "

       Bennus v. Guyldley.

       Dundass v. Weymouth.

       Holland's

       English v. Burnell and Ingham.

       Bull v. Steward.

       Wise v. Wise.

   Lansing, Chancellor.

The first point to be determined, is, *the class to which the act of the legislature, on which this action has been brought, is to be assigned—If a public act, every part of it is, in legal intendment, in the knowledge of the court, as the general law of the kind. If a private act, it can only be so far attended to, as the parties, by their pleadings, have made it an object of judicial connusance. Amongst the English legal maxims, we find, that every statute that concerns the king, and every statute that relates to all the subjects of the realm, are public statutes. All highways, as contradistinguished from private ways, are common to all the people of the state, and concern them generally. A new creation of a highway, or a new modification of an ancient way, as in the case of a turnpike, does not affect the mode of using it generally. It ie still a highway, in the preservation of which, all citizens are interested. It contributes essentially to their convenience. The toll is merely exactable for its construction, maintenance, and repair. In all other respects, the right of using it as a-highway, is unimpaired. The people of the state, who, in their collective capacity, have succeeded to the rights of sovereignty, are also entitled to the reversion, after the sums-charged on the Turnpike arc satisfied. These considerations lather incline me to think, that this statute ought to be considered as a public act; but, for the purpose of this argument, I do not suppose it necessary to be very nice, in discriminating between public and private acts. For, though it is true, that private acts must be specially pleaded, the plaintiffs in the court below, by their allegations, have so far placed the act, on which this action is founded, before the court, as to enable them to examine the statute, to discover whether the ground on which they relied can sustain their action. They have referred to the statute by its title, which is the name or , . . . . . . , , , , , , . . descnption given to it by its makers, and though the plaintiff need not recite more of the statute than is necessary to support his action ; and though it is laid down, that a misreciíal, which does not go to the ground of the action, is helped after verdict by the statute of Jeofails ; yet it is requisite, that he should show that the ground of his action is consonant to the provisions of the statute, to which he has thus generally referred in pleading, and so far forth as it is material to show the ground of his action, he has given it the property of a public statute. This is clearly distinguishable from showing an exception by pleading. In that case the plaintiff only shows his right of recovery generally, and the defendant must, by pleading, bring himself within the exception. In that case, the record will always consist with the statute. In the other, an action may be sustained, which, from a mere comparison of the record with the statute, will show a recovery without right. I mean now to consider, 1. Whether the contract in question is a valid one ? 2djy. Whether an action is sustainable by the defendants for the sums required from the stockholders ? From the record it .appears, that commission■ers were appointed by the statute to perform certain duties, particularly prescribed. They were to receive subscriptions, and to receive, for the benefit of the defendants, $10 on each share of the stock of their Company. The plaintiff subscribed, but it docs not appear that he paid. At the time these steps were taken, the Corporation, described in the act, was not in existence. It was incapable of contracting. The acts to be performed by the commissioners were merely preparatory to its creation. To give effect to their acts, their power must be strictly pursued. They had no discretion, or latitude of action ; their line of conduct was marked with the utmost precision. They were directed to exact from the persons, who were to be admitted members of the Corporation, both subscription and payment, as a condition precedent to their admission. If they omitted either to subscribe, or to pay, they did not come within the terms of admission. If so, the bare act of subscription was wholly nugatory. The subsrcibers, who were to meet, could only constitute -themselves such, within the intent of the statute, by a compliance with the terms prescribed by it. When the Corporation was organized, the Directors might dispense with the exaction of the first payment. But if they ,did so, there was no ground for, extending the doctrine of relation to the transaction, so as to bring it within the rules applying to mutual contracts. For, the doctrine of relation is to be applied, it will carry it to a period beyond the existence of the body politic with whom the contract is supposed to have been made. If the defendants had affirmed the contract, in all the time intermediate the affirmance and the subscription, the contract had been suspended. Now, it is a well established rule, that, to give efto mutual contracts, a unity of time, as to their com.-znencement, so as to bind both parties from the same point of time, is essential. It did not constitute a contract; for, the contract, if any, was, “ I agree to pay {$25 for every share I acquire by this subscription,” and if none tvere acquired, none were to be paidfor. This result would render it unnecessary to examine the second point; but I shall cursorily remayk, that if the subscription was efficient in the first instance, I have no doubt but that the defendants might resort to their action, as a cumulative remedy, and that they had their election either to sue, or exact the forfeiture prescribed by the statute. This is an affirmative statute; it prescribes a form of contract, which, if so entered into as to bind the parties, at the time of consummation, without any aid from the statute by other express provision, would entide the defendants to maintain their action. It is a maxim in the common law, that a statute made in the affirmative, without any negative expressed or implied, doth not take away the common law. Therefore the plaintiff may either have his remedy by the common law, or upon the statute. For the reasons given, I am of opinion, that the judgment in this case ought to be reversed on the first point.

L’Hommedieu, Senator. The act establishing this corporation directs, that every subscriber shall, at the time of subscribing, pay unto either of the commissioners the sum of ten dollars, for each share so subscribed. The material question in this case is, whether a subscriber, refusing to pay the money subscribed, is liable to an action for the money subscribed; or, whether forfeiture be not all the punishment. This act, being made for a particular purpose, ought to be strictly pursued ; and as there is no remedy given, except the forfeiture, that forfeiture is the only thing the corporation can insist upon. In this case, the subscriber refused to pay the money the law declared should be paid at the time of subscribing. If this was not done, it was a nudum pactum, or void compact. The plaintiff, by this, forfeited his right to be a stockholder; and, in case the stock had rose, the company would have been under no obligation to have considered him as a stockholder. This is, I believe, the first instance of a suit’s being brought on a subscription to a turnpike or canal corporation, on account of a refusal to pay the subscription money. This shows the general sense of the community, in respect to such subscriptions. Many instances of this kind in the canal company, insurance companies, banking companies, ancbothers, have taken place; and if the doctrine of subscribers’ being liable to pay up the shares in such navigation companies to which they have been subscribed, be once entertained, it would be ruinous to many ; -contrary to the intent and meaning of the parties, and the obvious construction of the law. The determination of this "court will settle the rule in regard to corporations which are formed, or similar ones which maybe created, as to bringing-suits on subscriptions. If the defendants are suffered to recover, it will open a wide door for numberless suits, if the corporations are disposed to bring them. By the contrary rule, no inconvenience will accrue. In this case before us, we have no Tacts to show why the subscriber refused to pay the money sub- >. scribed.by him. But whatever reason he had for his conduct, I am-of opinion he'had a right so to do, by the fair construction of-the act; and that the judgment of the supreme court be reversed.

Judgment reversed, the court holding no action would lie.


author: Spencer, J.

text:
    Robert Furman, Appellant, And Jesse Coe, Samuel Coe, and William Coe, Respondents.

    On a discovery denTe after a cha' ce *y ti application ■ 'ougiit tobe for view, and not Í” a-^’e,ujie competence of ambietTis^ie cause of appiito bVby bilí of review; when their credit, by articles, if tnisteTberob1" bed of trust ^oTJríswerto' a bin for an ac-executor trustee be ^ai repre-1" sentative may 0f ¡t y10> it waut the corrobovtaion of the oath of him whom he re* presents,

      ON appeal from Chancery. Robert Coe, the grandfather of the respondents, by his will empowered his executors, Wil**am Furman and William Howard, to sell and dispose of all his real and personal estate, at such time as should be judged m0Sf advantageous for his children. He directed also, that his daughter Mary Gods children (the respondents) should have the same quantity of money between them as their mother, the said Mary Coe, should have had for her portion, had she survivefib" that is, to be equal -with the rest of his daughters, such share ¡f0 bedeft in the hands of his executors, to bring them up. On the death of the testator, Howard, refusing to act, William Furman alone proved the will; and in pursuance of the autho- . 1 . . . . rity it contained, being about to sell the estate ox the testator, some the legatees who were of age objected to it, urging, that, from the then existence of the revolutionary war, the land w°idd sell to a great disadvantage ; and that, as several robberies had been committed in the neighbourhood, the keeping the money it might bring would be attended with danger; but that if a sale was to take place, it ought to be at auction, as in that manner a higher price would be obtained. The executor, however, without attending to these remonstrances, proceeded in the disposition of the real and personal estate the testator, which he sold in the month of May, 1779, at private sale, for <£3138, of which sum the real estate produced £3000. On the 3d of August following, the executor dividcd the money arising from the sale among the legatees, according to their interests under the will, and took from those who were of age a receipt in full, for all their shares and propor- . , , r, . , . , , •tions respectively; but the part belonging to tne respondents, the eldest of whom was not then six years old, he, according J v to the directions of the will, retained in his own hands. In -1783, William Furman, the executor, died, and the appellant, his son, having administered on his estate, the respondents filed their bill against him, for the recovery of their legacies, under the will of Robert Furman. To this the appellant put in his answer, insisting on a total exoneration, in consequence of his father’s house having been broken open by some robbers, who took away all the money then in his father’s possession, including that belonging to the respondents, no part of which had ever been recovered. Qn the examination of witnesses, the fair character of the executor and the robbery were fully established. The testimony of one witness went to show a recovery of the money, from an acknowledgment of the executor in conversation with him. It was also in evidence, that William Furman had refused to advance to Susannah Coe, with whom the respondents lived, any thing for their support, saying no person should have money from their legacies, until they should come of age. It appeared also, that William Furman had let out the real estate of his testator for two years. Upon these circumstances, the Chancellor had decreed, to the respondents, their full proportion of the real and personal estate of Robert Coe, without any deduction ; and also their proportion of two years rent of the real estate, with full interest on the whole, to be computed at the expiration of three months after the sale of the testator’s property. After pronouncing this decree, the appellant presented a petition for a re-hearing, setting forth, that he had since discovered that two of the respondents’ witnesses (whose depositions were read at the hearing of the cause) were, at the time1 of their examination, interested in the event; and that one of the respondents died before the hearing, having bequeathed his interest, under the will of Robert Coe, to the witnesses in-question. The petition having been dismissed with costs, the appellant presented another for a re-hearing, in which he stated that Susannah Coe had, with two of the respondents, resided on the real estate of the testator, from May, 1778, till it was sold; and that, during the war,- it was very difficult to put money out at interest ;• that when it could be done, it was at a very low rate; and that, at no time from thence to the present day, had 'money been loaned at 7 per cent. This petition being also dismissed with costs, the appellant appealed, as well from the orders thereon, as the decree in the cause. Bogert, for the appellant, having opened the case, his Honour' the Chancellor proceeded to assign his reasons s

    Mr. President—Four questions have been discussed in this case, as material to a decision between the parties. 1st, Whether the sale of the real estate by the executor was bona fide ? 2d, Whether the fund, destined to the support and education of the complainants, was inequitably withheld ? 3d, Whether robbery can legally operate to discharge an Executor ? and 4th, Whether the evidence of the robbery in the present case is competent to his discharge on that ground ? The will vested a liberal discretion in the Executors as to the time of sale. They were authorized to sell the Testator*s real and personal estate, at such time as should be most advantageous to the children of the Testator.—He died in 1777; the sale of the real estate took place in 1779. It is perhaps difficult, at this late day, to appreciate with accuracy the motives to the sale, at the time it took effect. It was at a period of great public commotion ; when the operations of contending armies bad affected the value of real estates very essentially ; when that species of property, from the circumstances of the times, and the repeated depredations of lawless men, was, however, to be preferred, as a permanent fund for the support of persons incapable of managing their own concerns, to the less secure investment of money. These considerations it seems were fully brought into the view of the executor, by the representations of some of the persons beneficially interested under the provisions of the will; they were disre-, •garded, and the sale persisted in. Yet from a review of all the depositions, I think the rational result drawn from the whole collectively, is, that the Testator’s real estate was not sold much below its value. Several of the witnesses depose positively to this. Those who differ, either mention in indefinite terms that it was sold below its value, or, il they define the sum, they connect the advanced price with a sale at auction, to which the executor was not bound to have recourse. This, combined with the circumstances that all the other de-, visees, capable of acting for themselves, immediately acquiesced, received their dividends of the consideration money, and executed acquittances, I think, may well be admitted to close the examination as to this point; for, though their acts generally cannot operate to the prejudice of the complainants, on this point, they spéak an unequivocal language as to the fairness of the sale, as they are not even suspected of collusion with the executor. As to the second point, this is important in one view of the subject. For, if the executor, regardless of the obligation he had incurred by taking upon himself the execution of the will, refused to provide for the support and education of the complainants, he may be chargeable for such breach of trust. The complainants, have specifically charged this refusal in their bill, and the defendant, in his answer, avows his ignorance of any advance, for that purpose, by his intestate. The will directed» that the shares of the complainants (Mary’s children) should be left in the .hands of the executor to bring them up. The children, all the witnesses examined to that point concur, were of a very tender age, at the time of the death of the testator. Susannah Coe swears that she brought them up; that she lived within two miles of the executor ; that she several times called upon him for some portion of their share of their grand-father’s estate, for their support and education; that. he positively refused, without assigning any reason, to advance any, till they arrived of age; that the complainants were in want of clothing, and other necessaries ; that this was after the sale of the real estate, and after some of the devisees had been paid. Robert Moore,John Moore, Hezekiah Field, and Sarah Leverick, confirm the account of the infancy, destitute situation of the complainants, and their being supported by their grand-mother, aunt, or •some other of their relations. The executor has been proved t0 have sustained a fair character, by all the witnesses examined to that point; but the circumstances of his retaining the fund destined to support and educate the orphans, whose interests had been committed to his charge; of his observing thrown upon the bounty of their relations, destitute of clothing, and in want of necessaries of life, and this, in direct violation of the trust he had undertaken, are calculated to throw an air of suspicion on the whole subsequent transaction ; and, as far as part of the fund was necessary to be applied to their subsistence and education, it would clearly make him liable, whatever might be the consequences of the robbery as to the residue. As to the third point; in 2 Fonb. 191, it is laid down as a result deduced from the cases bearing on this question, that if a trustee be robbed, the sum lost by the robbery shall be allowed him in ¡account, although the amount be proved only by his oxvn oath. To fortify this rule, he cites the case of Morly and Morly, 2 Ch. Cases, 2, in which the robbery was proved, and the sum, by the defendants oxvn oath. In Co. Lit. 89, it is said, that if a guardian receive rent, and be robbed, if without his negligence and default, he shall be discharged. Southcote’s case, in account, it was held to be a good plea before the auditors, that the defendant was robbed. In Jones v. Lewis, 2 Vez. 241, there is the same doctrine, as to robbery being a discharge of the executors, if properly proved. These cases establish the doctrine, that if an executor be robbed without his default, the robbery being proved, he shall, by his own oath, be permitted to ascertain the sum lost, and shall be discharged as to such sum. It is therefore only necessary to test the evidence in the present case by that rule. The authorities cited permit the defendant to adduce the evidence of the robbery, and by his own oath to ascertain the extent of ■ the loss; but it is certainly-not a necessary consequence of this rule, that, because a departing step has been taken from the strict line of evidence, by admitting the defendant’s oath in his exoneration; therefore it is necessary to continue a progress in the same direction, by taking his declaration, unsanctioned by oath, as part of the evidence. The defendant in this case has stated the robbery positively. But he has connected with it the information, that he was absent from Long-Island during the whole of the war between the United States and Great-Britain, and thus conclusively evinced, that the fact of the robbery was not asserted on his own knowledge of that circumstance, but collected from the information of others. That a robbery was committed, and some money stolen from the executor, seems to be pretty well established, The declarations of the executor, though contemporaneous, I think cannot be admitted as evidence; but if they could, those declarations are so inconsistent with each other, as, even admitting their validity, generally to establish the point, to fail of that effect here. All the witnesses, however, speak of his declarations only without any pretension to personal acquaintance with the circumstances of the robbery, excepting Abigail Rhodes, Mary Boss, and Robert Drummond, who were in the house of the executor on the night the robbery was committed ; they also agree that the house was broken open by a party of men armed and disguised. Abigail Rhodes deposed, that 8 or «£900 in cash was carried off, besides some articles of silver; that part of the money so carried off, “ was money “ received of the estate of Robert Coe, deceased, and then “ in the hands of William Furman, senior, as executor of that “ estate.” Upon her cross-examination she declares, “ that “ some part of the money of which the said William Furman “ was robbed, belonged to himself, some to the brother of “ the said William, and that a considerable part belonged to “ the estate of Robert Coe, deceased; that all the money of “ which the said William was robbed, was kept in a strong chest, “ in an upper chamber, at the time of the said robbery ; that “ the money was in gold and silver, and was contained in “ bags.” She then proceeds to relate, that the executor was sent for to New-York, to attend the trial of some soldiers for the robbery; that a purse containing 60 guineas was shown to him, and he was required to identify it, which he could not. Mary Boss deposes, that the party robbed the executor of all the money in the house; that she was present and saw the robbers carry off the bags containing the money. Upon her cross-examination she says, that the money of which the executor was robbed, was kept in a chest in an upper room; that it consisted of hard money, and was contained in bags; that she saw the robbers bring the said bags down stairs, and carry them away; that she knew not the quantity of money, having never seen it counted; that she was at that time employed by Mrs. Furman to spin. Robert Drummond says, that the latter end of September, or beginning of October, 1779, when the robbery was committed, he lodged at the executor’s; that he saw one of the robbers force open a chest, and take from it a bag; that another broke open a closet, and came out with three bags, which he supposed contained money, as it rattled; that the executor, after the robbers were gone, observed, that ¿£3©O of the money belonged to some orphan children, of the name of Coe; that he had offered the money to the relations of those children, telling them it was troublesome times, and that he did not wish to run any risk in keeping the money. Abigail Rhodes particularizes the several owners of the money, and mentions the executor, his brother, and the estate of Robert Coe, as composing those owners ; all this money she says was put in bags, in a strong chest, in an upper chamber. Mary Boss says they took all the money in the house, which she also says was in a chest in an upper room, and that it consisted of hard money, and was contained in bags. If all this money described by these two witnesses was in bags and contained in a chest, Robert Drummond’s testimony shows, that the whole of the money from this chest was not taken; for he expressly declares that only one bag was taken out of the chest, and three others from the closet: and as the chest contained money of three several persons, and probably in distinct parcels; from these depositions contrasted, it would appear, that though a bag of money was taken from the chest, it might not be the one containing the money of the complainants; these considerations, and the declaration of the executor deposed to by John Moore, that he had got it back again, and the one made by him, related by Sarah Leverick, that some money had been left in every drawer, superadded to which, the inconsistent declarations of the intestate at different times, show, that it is totally impracticable to identify the money of the complainants in the hands of the executor, as the money stolen; here the extraordinary interposition of the executor’s oath might attach the loss to the fund in controversy; but without that, it is clear the discharge cannot be made out. I am therefore of opinion, that the defendant, who has admitted assets, is liable for the amount of the proportions of the complainants, and that it ought to be paid with interest, which is a very inadequate compensation for the privations which the complainants have experienced by the non-application of the fund to their support and education. I take it therefore it must be referred to a master to settle the account, in doing which he ought to charge the defendant with the one-tenth part of the production of the real and personal estate of the testator; with these complainants of the shares of Elnathan and James, with the -§- of Alette’s share, with interest on each sum from three months after the sale, deducting the money paid for her maintenance, with the share of the complainants in the personal estate of the testator, calculating the personal property at the selling, and not at the appraised value, and with the complainants’ proportion of the two years rent of the testator’s real estate with interest.
    Riggs for the respondents.
    Before the counsel opens on behalf of the appellant, we shall state that it was agreed in the court below, that the suit should proceed, notwithstanding the death of one of the respondents. That circumstance, however, was available of, only by way of bill of revivor, and cannot be urged now, because in appeal, nothing can be insisted on which was not offered below. 1 Har. Ch. 454. We shall contend also, ihat re-hearings are applications to the discretion of the court, similar to those for new trials; and that, as in the one case, a writ of error will not lie for a refusal, so an appeal cannot be maintained in the other, for dismissing. 3 P. Will. 8 . And 7 ° 1 further, that if the appellant was entitled to any re-investigation below, it ought to have been sought by bill of review, and not by a petition for a re-hearing. 1 Har. Ch. 450.
    Bogert. On the first point made below, we have nothing to complain. The Chancellor’s decision has put that at rest. But as to the interest with which we have been charged, we cannot be liable for it, unless it appear we have made the fund productive. It is in evidence it could not be put out, except with great difficulty; and allowing it could, it is settled an executor is not bound to do it. 2 Fonb. 184—5
      . Besides, the executors were ordered to retain in their hands; whilst doing this, the robbery takes place, and this is from principle, as well as necessity, a full exoneration. 2 Fonb. 177—8. 2 Vez. 240 . If the facts that a robbery was com-mitt ed, and the money never recovered, were dubious, an issue ought to have been directed. To object, that the appellant’s father did not prove the sum.taken from him on oath, is but of little force; for as at that time, and till his death, no courts were sitting, it was impossible to swear to that circumstance in any legal and efficacious manner. The appellant himself could not do it, but in the manner in which he has done, according to the best information and belief. It is only in case of gross neglect, an executor standing in the relation of trustee, is ever made liable in chancery. 1 Atk. 430 . The proof against him must be; very strong. 1 Vern. 144 . And that for fear of discouraging people from undertaking burthensome trusts. 2 Ves. J. 37 .
    Riggs and Hoffman contra.
    In support of the decree, we shall contend, that previous to the robbery, the executor was guilty of a most palpable breach of his trust, and so converted the fund; any subsequent loss, therefore, was of his own property, for which we are not to suffer. Barnard, 303 . 2 Fonb. 169, n. (b .) 4 Ves. J. 620 . The very sale was in violation of his duty. It was at a time when property was low'; and when even the product could not, as is stated by the answer of the appellant himself, be put out to interest; this too contrary to urgent• remonstrances. • In addition to these observations, the refusal to apply the portions of the respondents in bringing them up according to the directions "of the will, was clearly a breach of trust, and a conversion of the fund pro tanto. • This, upon the principle before laid downj renders the trustee answerable for the whole; and for this we have an authority in the case of Le Guen v. Gouverneur & Kemble  in this very court. As to the residue of the decree, we repose ourselves on the doctrines and reasons it contains .
    Troup and Benson in reply.
    If the court does not reverse in toto, they will at least order an issue to be directed. On the fact of robbery, there is no doubt. • The.only question is, as tó the recovery of the money. If the proof of that is deficient, a jury is the proper tribunal, unless the court think it established that it was never regained. As to the case of Le Guen v. Gouverneur & Kemble, that turned on this point. ' The defendants refused to give the plaintiff an authority to reeeive his money, to which he was entitled, and which he did not claim, but subject to their lien, after deducting fully its amount. The cases are by no means parallel. By the decision of the Chancellor, interest is ordered, though the robbery is allowed. This is acknowledging the misfortune, yet flicting a punishment; for interest is given against a trustee by way of mulct or penalty. In this respect, therefore, the decree is clearly wrong. So, in allowing the rents of the real estate for two years to be taken into the computation. Till the estate was sold, the rents  belonged to the heir at law; for to him the estate descended till the time of sale.

       Tt has beea defLdantTor any who re-can^CT^e'be-f?re decree rolled. Glenham v. Statville, 2 Ch. Rep. 195. See Mitf. Treat. 26, 7, 8.

       Mills v. Banks.

       Seethe int!lonty"

       Jones v. Lewis.

       Ivie v. Ivie.

       Palmer v. Jones.

       Sammers v. Rickman.

       Vernon v. Vaudry.

       S. C. cited there, that a trustee who is guilty of a breach of trust, is liable to his c'estui que trust.

         Piety v. Stace. A trustee using trust money in the funds, &c. shall be ch'argahle with interest. The demand, however, of the cestui que trust, is only a simple contract debt, unless acknowledged by the trustee under hand and seal. Gifford v. Manley, Forest, 109.

       1 Lex.Mer. Amer. 392.

       Both the counsel went into very elaborate and lengthy examinations of the testimony in the cause, hut as the decision in the court below, and the opinions in this, contain the essence of the whole, to insert the ingenious arguments delivered, would not elucidate the point, how much soever they might evince the talents of the speakers.

       The rule is, *^1 estate be sold at turned into personalty, the rents o*o as the land would. See Cruse v. Barley, 3 P. W. 20, and the the product of ^divided0 t0 between cersome^f^vhom die dm'in"'the tator, a vesuTttrust 'vil1 their shares, in favom" ofth® heir at law,

   Spencer, J.

It is proper that I first consider, whether the proceedings on the petitions presented by the appellant for a re-hearing of the cause, after a decree settling all the princi- ^ u i pies, and the dismissing those petitions, is warranted by the course of proceedings in the court of chancery. It appears to me, that the Chancellor disposed of those petitions correctly; for, as has been insisted on by the respondents^ counsel, instead of asking a re-hearing, on the discovery of new evidence, the application ought to have been for a bill of review, upon which the competency of the two witnesses, Hezekiah Field and Susannah Coe, would have been directly in issue, It was, however, not necessary to have filed articles; and in Callaghan v. Rochfort, 3 Atk. 643, Ld. Hardwicke decided, that articles were improper, when the objection was to the competency of the witnesses; but when to their credit, they were proper. The question, as to the interest of money upon Long-Island during the war, was certainly a question to which the appellants examined witnesses; and it cannot, with any propriety, be pretended, that he discovered testimony as to the rate of interest, of which he had no knowledge before the passing of publication, or the decree. But, upon any grounds which may be assumed, as the application to the Chancellor was for a re-hearing, in my opinion, the appellants’ counsel mistook their remedy, and the Chancellor very properly dismissed the petitions. In making up my opinion, therefore, I have rejected all the exceptions to the testimony of the two witnesses, Hezekiah Field and Susannah Coe. The first question presenting itself, is, whether there is testimony enough to warrant the court in saying, there was a robbery? And, upon this head of the inquiry, without at all reS'arc^n8 Vfhat Wm. Furman. said, there cannot remain a doubt». It is proved by the depositions of three witnesses, who were present at the time the robbery was perpetrated. Abigail Rhodes, Mary Boss, and Robert Drummond, depose to the facts. They relate the circumstances, and agree in the principal occurrences more correctly than is common-for three persons, who are deposing to an incident twenty-three years after it has happened. There can exist no reasonable ground - on which to doubt the robbery. The Chancellor was impressed with its having taken place; and in truth,, the respondents’* counsel admitted it. The next important points of inquiry are, 1st, Whether the money which had been paid by Mr. Titus to the executor of Robert Coe, Wm. Furman, and which appertained to the respondents, was part of the money whereof Mr. Furman was robbed i and, 2d, Whether this money was ever recovered by Furman? The law on the subject of bailments, and with respect to the responsibility of factors and trustees, is as firmly settled as on any other subject which can be presented. If the nature of the bailment or trust be such, that the bailee or trustee is to have no reward for his services, the law will not require of him any greater diligence than he usually exercises with regard to his own property; and it seems well established, “ that if a trustee be “ robbed of the money he received, he shall be allowed it on “ account, the robbery being proved, although the sum is only “ proved by his own oath ; for he was to keep it as his own; “ so in case of a factor, for he cannot possibly have other “ proof.” And it was correctly said on the argument, by one of the appellants’ counsel, that it would be bringing an executor, in whom the testator reposes such especial confidence, to a test too severe, when he has proved a robbery, to require of him an identification of the money belonging to the cestui que trust. Such severity would well nigh deter any man from assuming a station of such responsibility, upon the calls of friendship, and without any possible advantage to himself. It is objected, that William Furman, the executor of Robert Coe, never made oath, either as to the robbery, or to the identity of the money belonging to the respondents. It has been answered, and I think satisfactorily, that there is no mode pointed out for a trustee, under his situation, to have pursued. Had he made an affidavit, it would have been extra-judicial, mncl of no more importance than his own declarations. He could not resort to a court of chancery; because, from the time of the robbery, until very near the time of his death, which was in 1783, that court was shut. What means could "he have pursued under the then state of things, which he not ? I confess myself at a loss to perceive any neglect on the part of William Furman, in that respect. If, then, William Furman could not avail himself of an opportunity to make the •oath, which most certainly will, in cases of this kind, protect .a person, as to the amount of the sum robbed, what shall we require of him that he did not do ? It appears from the deposition of Robert Drummond, that immediately after the robbers had retired, William Furman went with him up stairs, where it is agreed, by all the witnesses, the money was deposited ; and that he then stated to Drummond the amount to be ¿£900; that ¿£300 belonged to some orphan children, of the name of Coe; and that he was an executor for the children. Abigail Rhodes, who, from her situation and relationship to William Furman, being his daughter, may be presumed to know, states in positive terms, “ that a part of the mo-a ney of which the said William Furman was robbed, as aforesaid, was money received of the estate of Robert Coe, deu ceased, and then in the hands of the said William Furman, “ senr. as executor of that, estate.” Mary Boss, who is spoken of as Polly Thompson, also resided in the family of William Furman. She states, that he was robbed of all the money he had in the house; and that the next morning she heard "him say, that all the money belonging to the grand-children of Robert Coe was taken by the said robbers, together with .his own. Mrs. Rhodes could only speak of the money belonging to the respondent; because, on the third of August 'before the robbery, the other legatees had been paid their proportions of the proceeds of the real and personal estate. It appears to me, that, from these facts, taken collectively (and I know of nothing to detract from them) it must be manifest, that the money belonging to the respondents, and in the hands of William Furman, was taken by the robbers, together with his own. Did William Furman recover this money ? The only witness who establishes this fact is John Moore. His character appears to be fair; to Iiis declaration, therefore, .great weight is to be attached. He says, “ that he heard. “ William Furman say, he had been robbed of a certain sum “ of money, but that the robbery had been detected, and the “ money recovered; and that he had got the same again.” To believe this to be correct, is also to believe William Fur-man to have been a most profligate and abandoned character. That he was otherwise, appears from the confidence reposed in him by Robert Coe, and the proof that he was a man of good character. It is to be again remembered, that John Moore is speaking to a conversation more than twenty years past -; and -it would be going too far, to believe that he did not labour under some mistake, when the testimony opposing this fact shall have been considered and weighed. If William Furman made the declaration imputed to him by John Moore, there can be no satisfactory reason assigned, why it should have been confined to Moore alone; and most certainly his own family would have been informed of such singular good fortune, Robert Drummond states, that he was sent for to appear as a witness before the court-martial, on the apprehending some men charged with the robbery. He did appear, but could not identify the robbers, in consequence of which they were remanded; but he 'never heard or understood, that the money, -or any part of it, had been restored. This witness had the best means of knowing the fact of the recovery of the money, had it happened. This testimony, though negative, in my opinion affords a strong presumption that it never was reclaimed. Abigail Rhodes and Mary Boss both unite in declaring, that they never heard that any part of the money taken by the robbers had been-recovered.; and it is inconceivable, if the fact had been otherwise, that they,should not have -heard of it from Mr. Furman. John Gosper asserts, that he heard Mary Boss some years -afterwards say, that William -Furman had been very lucky, for that he had “ recovered all the money -he'had been robbed of, except a u small part.” This declaration she denies ever having-made ; and, admitting that it detracts from her credibility, for having asserted facts not under oath, which she denies when under oath, still the testimony of Drummond and Mrs. Rhodes remains unimpeached. Hoxvard Furman, who appears to have lived-in the neighbourhood, heard of the robbery the day after It was committed, but never heard that the money -was -recovered. -Benjamin Coe was told of the robbery m 1783, by William Furman; and that he had been to New-York, on .he apprehending some soldiers suspected, but he told him he could get no account of the matter. Joseph Robiuson was told in 1783, by William Furman, of the robbery; anu mat it amounted to ¿£ 900, of which 5 or <£600 belonged to him. lie says nothing of its having been recovered. Ttwmas Burroughs says, he was informed by William Furman oí the robbery ; and that he had been sent for to New-York to tetch the money; but he did not fetch it, as the person having the charge of it had gone to Kingsbridge. Susannah Coe says, she has heard William Furman say he was robbed of a purse of money; that he had seen the purse and the money again in New-York ; and th t the person in whose charge it was had gone to Kingsbridge. It is manifest, that the last witness, to say the least of her, must have been mistaken; for, from the testimony of Drummond and the other witnesses, the money was in bags; and it is somewhat remarkable, that Mr. Furman could have seen the purse and money, when the person in whose charge it was, was absent at Kingsbridge. The testimony of Joseph Burroughs presents nothing but the vaguest hearsay, and deserves no consideration. Upon the whole, from the strictest examination of the evidence in my power, it appears to me, that the weight of evidence is decidedly in favour of the appellant. ; that the money was not recovered: therefore I am for reversing the decree, and dismissing the bill of the respondents with costs in that court. I have not noticed the pretended breach of trust, on the part of William Furman, in disposing of the real estate of Robert Coe at private, rather than public, sale. The testimony in the cause abundantly shows, that his conduct was fair and honest. If he really misjudged, ■in either the time or mode of selling, it will not warrant me in saying, contrary to the proof, that he was guilty of a breach of the trust reposed in him. There are other minor points in the cause, the decision of which is rendered unnecessaiy, by the opinion I have given. There is one thing yet to be noticed : it is alleged by Susannah Coe, that she applied to William Furman for money to purchase necessaries for the children, and that he refused, saying, “ that no person should “ have money, on account of those legacies, until the children “ were of age.” This, it has been contended, was a conver-ssion of the whole; or, in other words, that he became answerable for the whole amount in his hands, if it was after-wards robbed, and never recovered. The testimony of Mrs. Coe, on this point, is very loose and inconclusive. She furnishes no dates; and it is impossible to say, whether her application was before or after the robbery. But to this there is a further answer, that Mrs. Coe had no right to make the demand, unless she was guardian to the children, which she appears not to have been. Mr. Furman’s refusal to an unauthorized person cannot, therefore, in law, draw after it the ■consequences which have been contended for.

Livingston, J. The questions in this cause are principally questions of fact. They involve the robbery of the intestate, and the subsequent recovery of the money. That William Furman was robbed, can admit of no doubt; the testimony to this point is full and conclusive. His Honour the Chancellor •regarded it in that light; nor can any who will read the depositions entertain a different opinion. The want of Furman’s own oath (which indeed could not have been taken, except in an extra-judicial way) is abundantly supplied by other proof. There is as little difficulty in determining that the money of the complainants was taken, as well as his own. Some of the witnesses, who establish the robbery, expressly state that part pf the money of which he was robbed belonged to the estate of Robert Coe, deceased. Considering the manner of the robbery, which was perpetrated in the night, by several armed men, who must of course have had a complete control •over the dwelling-house and all its inhabitants, it is not probable they left any money, worth speaking of, behind. Whether the money was regained, is a question of more difficulty; and yet on the proof before us, my opinion would be in the negative. There is no one witness, except John Moore, who deposes affirmatively on this point; and although a man of character, it is probable either that he has committed some mistake, which would not be extraordinary, after so great a lapse ■of time, or that some circumstance is omitted, as to time and place, which would give a very different complexion to his testimony. Perhaps the declaration of Furman, which he speaks of, was made after he had heard of the detection of the robbers, and when he of course expected to recover the money. Some explanation is wanted from this witness to reconcile his testimony with the declaration of the other witnesses, and the conduct of Furai&q to other ^persons. How happens it, that none of the persons who resided in his family ever heard this money was recovered, or that Furman, who bore the character of an honest man, never mentioned so important a circumstance to any but Mr. Moore ? or that the recovery of this money did not become a matter of as great, indeed greater, notoriety in the neighbourhood, than the robbery ? The money could not have been returned in secret. It would have been known to many; it would have been the subject of conversation throughout the neighbourhood; it would not have been in the power of an artful man to have suppressed a knowledge of such an incident. An honest man, as Furman was, would have had no motive to attempt it. But notwithstanding the strong inclination of my opinion in favour of the appellant on this point, it is one of those cases which ought to be submitted to a jury. A more full and satisfactory examination can thus take place, and there will be less danger of error in that way, than if we take the decision of it upon ourselves. My opinion therefore is, that his Honour the Chancellor be ordered to direct a feigned issue to be tried between the parties at common law, to determine whether any and what part of the monies of which William Furman, as executor to the last will and testament of Robert Coe, deceased, was robbed, during the late war between the United States and Great-Britain, was at any time and when recovered by him ; and that all further directions be reserved, until the trial of such issue. Some complaint was made against the sale of the real estate. This complaint was without cause. The Chancellor considered it so; and I entirely concur in this part of his opinion. The sale was fair, well intended,¡for a full value, and I think well-timed. Although money produced little or no interest on Long-Island, during the war, the farm would not have yielded any great rent, and might, and probably would, have suffered much. It was also said that William Furman, by refusing to advance any money to Susannah Coe, for the complainants’ support, was guilty of a breach of trust, and on the principle established in the case of Le Guen and Gouverneur & ICemble, he became liable, from that moment, for the whole fund in his hands, and that therefore no subsequent robbery could shield him from a responsibility to that extent. I cannot perceive how the case cited bears on the one under review. In Le Guen v. Gonverneur and Kemble, nothing more was decided, according to my understanding of it, than that factors, who were in advance, and under heavy responsibilities for their principal, had no lien on his securities in their hands, and that in a special action on the case against them for misconduct, it was not only unnecessary in the plaintiff to prove a special damage, but incompetent for the defendant to show their principal had been benefited by this alleged misconduct. If Furman was guilty of a" breach of trust, it could only be for so much as was necessary for the support of these children; but that could not affect the surplus, which must have remained in his hands after advancing what Susannah Coe asked of him. It is however sufficient to say,' that Mrs. Coe had no right to make this demand, and that it does not appear with sufficient certainty that it was made.

In this last opinion Kent, Justice, concurred, contra Lewis, C. J. who, with the majority of the court, being for a reversal, the decree was accordingly reversed in toto.