source: Caselaw Access Project

license: Public Domain

text:
    Peter M. Ryerson v. James Boorman and others.
    In April 1845, a decree pro am. was obtained by B. against R., in a suit for the foreclosure of a mortgage for $27,727 24. In September following, the mortgaged premises being then advertised to be sold under the decree on the 6th of October,
    1845, R. made a proposition for the payment of the mortgage debt, to which B. acceded. B. wrote to his solicitor, authorizing him on certain conditions to enter into a stipulation with R. on the terms proposed, one of' which was that $1100 should be paid by R. and the arrangement completed on or before the 1st of October. No part of the money was paid as proposed. On the 5th January, 1846, R. paid to B.’s solicitor $1100. B.’s solicitor apprised him of what had been done. B. directed that $500 of the $1100 be applied to the payment of the interest up to the 1st of January,
    1846, on $20,000; and authorised his solicitor to enter into a stipulation, on the r payment! of $19,500, with interest semi-annually, in certain specified instalments,
    to discharge the debt and release the property mortgaged, the stipulation to contain a reservation of all due rights under the mortgage and decree oí sale, provided the stipulated payments of interest and on account of principal are not regularly made. R. never made any other payment.

      MelA, that the debt was not reduced to $20,000.
    The facts in this case are stated ante, vol. 8, page 167. No testimony was taken.

      A. S. Pennington and B. Williamson for the complainant.

      F. T. Frelinghuysen for the defendants.
   The Chancellor.

The decree must be taken to be valid, and the mortgage on which it was obtained to be valid. It follows that the complainants in the foreclosure suit could refuse to make any reduction of the amount of the decree; and any merely voluntary agreement to make a reduction would not bind them. If they agreed to make a reduction, they could impose their own terms ; and if any of the terms were not complied with, they could insist on the whole amount of the decree.

Ryerson was to have paid $1100 on the 1st of August, 1845. He did not do so. But about the 1st of January, 1846, he paid to the solicitor of the complainants in the foreclosure suit, at Paterson, $1100. This $1100 was then due for interest. The complainants might refuse to receive any part of it on account of principal. They wrote back to Mr. Ogden, their solicitor, that they had applied the $1100 to the payment of the interest due Jan. 1, 1846, and authorised him to enter into a stipulation' conforming to the spirit of the previous arrangements, and meeting Mr. Ryerson’s request for an extension of the proposed payments, making the arrangement stand thus : — $20,000 principal, as follows : $1,000, July 1,1846 ; $1,000, January 1,1847; $1,000, July 1, 1847; $500, January 1, 1848 ; $500 July 1, 1848; $500, January 1, Í849 ; $500, July 1, 1849, and the balance on the 1st July, 1850 ; interest on the unpaid principal to be paid semi-annually on the 1st July and 1st January in each year.

It does not appear that Ryerson made any objection to this new arrangement; and from the' course things took he must be presumed to have consented to it.

He failed to make any of the subsequent payments.

Under these circumstances I do not see that the Court can declare that the amount of the decree is reduced to $20,000.

Decree for defendants.

Note. — See 1 Story's Eq., sec. 433, note 3; 2 Ib., sec. 706, 700 a, 789, 793 a, sec. 973, 987.


author: The Chancellor.

text:
    George A. Perdicaris v. Samuel G. Wheeler, Jr., Lewis Perrine and Daniel B. Allen.
    P. exhibited bis bill for foreclosure, Ac., on a mortgage given to him by W., dated June 80, 1845, and made L., a prior mortgagee, and A., a subsequent mortgagee, parties defendants with the mortgagor. The defendant A. put in his answer, setting out his mortgage. W., in his answer, admitted P.’s mortgage, but stated certain facts on. which he claimed that A.’s mortgage should be held to be prior to that of P. He admitted the mortgage to L., and the mortgage to A. W. afterwards filed a bill in the nature of a cross bill, for the purpose of contesting A.’s mortgage, stating, that the balance due on A.’s mortgage consisted of a check drawn by W.’s father, to the order of A., on a certain Bank in N. Y., which check, he states, was to be assigned and delivered to him, W., whenever A. should be requested to do so. That he has demanded of A. an assignment and delivery of the said check, and that A. refused it. This bill prays that A. may discover, &o.; and that the proceedings on P.’s bill may be stayed until A.’s answer to this bUl shall come in; and that the mortgage to A. may be deoreed to be delivered up to be cancelled. On this bill a motion was made in behalf of W. that proceedings on P.’s bill be stayed, &e. The motion was denied. Subsequently, the cause on P.’s bill was heard; and the Court directed that the mortgaged premises be sold, and that the amounts due P. and L., respectively, be paid, and that the surplus be brought into Court, to abide the further order of the Court in reference to the mortgage given to A. A. put in his answer to W.’s bill; an^ a replication was filed, and testimony taken; and a decree was made sustaining A.’s mortgage.
    On the 1st July, 1846, George A. Perdicaris exhibited his bill for foreclosure, &c., on a mortgage, dated June 30, 1845, executed to him by Samuel G. Wheeler, Jr., to secure the payment of a bond therein mentioned, of the same date, conditioned for the payment of $3,775 10, in one year, with interest. The mortgage was on a mill and two lots adjoining the same in South Trenton, and on all the machinery, fixtures and appendages in the mill.
    The bill states that, on the 15th April, 1845, the said Samuel G. Wheeler, Jr. executed a mortgage to Lewis Perrine on the same real estate, to secure $3,000; but that the said mortgage did not cover the machinery in the mill.
    And that, on the 31st July, 1845, the said Samuel G. Wheeler, Jr. executed a mortgage to DanielB. Allen on the same real estate, to secure the payment of $3,500 ; but that this mortgage did not cover the machinery in the said mill. The said Perrino and Allen are made defendants.
    The defendant Allen put in his answer, setting out his mortgage.
    The defendant Wheeler, in his answer, admitted the complainant’s mortgage, hut stated certain facts on which he claimed that the mortgage to A. should bo held to be prior to that of the complainant. He admitted the mortgage to Perrine; and admitted the mortgage to Allen, but stated that $2,000, or thereabouts, had been paid on it, leaving unpaid thereon $1,500, or thereabouts.
    The defendant Wheeler afterwards filed a bill in the nature of a cross bill, stating, shortly, the bill and the answers, and then stating that a portion of the indebtedness to secure which the bond and mortgage to Allen was given, being the balance now remaining due and unpaid thereon, as set forth in Allen’s answer, consisted of and was a chock purporting to have been drawn by one Samuel G. Wheeler to the order of said Allen, or of some other person, dated June 5, 1845, drawn upon the American Exchange Bank, or some other Bank in the city of Now York, for $1,550; which said check, constituting, as aforesaid, the entire balance protended by Allen to be due and unpaid of the principal sum mentioned in the said bond and mortgage to him, was to be transferred, assigned and delivered to him, Wheeler, Jr., whenever Allen should be thereto afterwards requested.
    He says that by an account current between him and Allen, in the hand-writing and signed by Allen, it appears, and is admitted by Allen, that he, Wheeler, is therein charged and debited with the said check, and is credited with the said bond and mortgage; said check, together with another item in said account, of $2,000, which last sum, with the interest thereon, has been paid, as admitted by said Allen’s answer, constituting the $3,550 for which said bond and mortgage were given; the difference of $50 or thereabouts being settled by a note of $50 or thereabouts, payable on demand. That he has frequently and in a friendly manner desired Allen to transfer and assign to him the said cheek for §1,550; and has caused a formal demand to he made upon Allen to comply with his agreement and transfer and deliver to him, Wheeler, the said Check -, hut that Allen neglects and has positively refused to do so, and still refuses. That Allen, by reason of the premises, is entitled to no decree against him in this cause; but that he, Wheeler, has no means of defending himself without the oath and discovery of Allen. He prays that Allen may answer ; and that the proceedings in the cause pending between Perdicaris, complainant, and said Wheeler, Perrine and Allen, defendants, may be stayed until Allen’s answer to this bill be before the Court; and that said bond and mortgage executed and delivered to Allen may be declared to have been improperly retained, and may be decreed to be delivered up to be cancelled; and for such other and further relief, &c. This bill is sworn to; and a certificate of P. D. Yroom, counsel, is annexed, that he is of opinion that it is not intended for delay, but is necessary for the attainment of justice.
    On this bill, a motion was made on the part of Wheeler that all proceedings on the bill of Perdicaris be stayed until the answer of Allen to Wheeler’s bill should come in.
    This motion was argued by

      P. D. Vroom for the motion, and S. G. Potts, of counsel with Perdicaris, against it; and an order, was made denying the motion.
    Subsequently, the cause on the bill of Perdicaris came on to be heard on the bill, answers, replication and exhibits in that cause; and thereupon the Court declared that Perdicaris was entitled to relief; and that the mortgaged premises ought to be sold, and that the amounts due Perdicaris and Perrine, respectively, be paid ; and that the surplus be brought into Court to abide the further order of the Court in reference to the mortgage given to Allen; and ordered a reference to ascertain the amounts due to Perdicaris and Perrine, respectively.
    On the coming of the Master’s report, a decree was made for a sale of the mortgaged premises, directing that the surplus after paying Perdicaris’s and Perrine’s mortgages be brought into Court to abide, &c.
    Allen put in his answer to Wheeler’s bill. He admits that a portion of the indebtedness to secure the payment of which the bond and mortgage to him were executed and delivered consisted of and was a check drawn by one Samuel G. Wheeler to his, Allen’s, order, of the date mentioned in the cross bill, upon the American Exchange Bank, for §1,550 ; which check is now in the possession of Stacy G. Potts, this defendant’s counsel, at Trenton; but he denies that there was any agreement between him and Samuel G. Wheeler, Jr., that the said check was to be assigned, transferred and delivered to said Wheeler, Jr,, whenever this defendant should afterwards be requested to transfer, assign and deliver the same.
    He admits that it may be true that, in an account current between said Wheeler, Jr., and him, in his handwriting, the said Wheeler, Jr., is charged and debited with the said check, and is credited with the said bond and mortgage to him, Allen, and that Said check together with another item in said account current of §2,000 constituted the §3,550 for which the said bond and mortgage to him were given, and also a note for $50 or thereabouts, payable on demand.
    H© denies that said Wheeler, Jr., has ever requested him to transfer and assign to said Wheeler, Jr., the said check for §1,550, or has ever caused a formal demand to be made upon him for the said check; but, on the contrary, avers that, some time about the 1st of June, 1847, in a conversation with the said Wheeler, Jr., in reference to the amount of said check, he stated to said Wheeler, Jr., that he would send said check to S. G. Potts, hir. counsel, in Trenton, with instructions to deliver it to said Wheeler, Jr., when sr-id mortgage debt should bo paid, and that said Wheeler, Jr., made no objection to the arrangement; and the first intimation he had of any difficulty made or dissatisfaction expressed by said Wheeler, Jr., in relation to the said check, was by information from said S. G. Potts of the filing of the said cross bill and the allegation therein that such request and demand had been made on this defendant.
    • He further says that, immediately upon receiving such information from his said counsel, he sent the said check to his said counsel, with full authority to deliver the same to the said Wheeler, Jr., if he should deem it proper to do so. And he has been informed and believes that his said counsel, shortly after receiving said check, informed Mr. Vroom, counsel of said Wheeler, Jr., and afterwards the said Wheeler, Jr., himself, that the Said check was in his hands and ready to be delivered up whenever said Wheeler, Jr., wished to have it. That said check has since that time remained and still remains in the custody of his said counsel, ready to be delivered to said Wheeler, Jr., or his said counsel, whenever either of them shall be willing to receive the same, or to be otherwise disposed of as this Court shall direct. And he submits that he is entitled to a sale of the premises in his said mortgage mentioned, and to payment of such sum as may be found due to him on his said bond and mortgage. A replication was filed to this answer; and testimony Jwas taken. And the cause on the cross bill was brought to hearing in March, 1849.
    P. D. Vroom for the complainant in the cross bill.

      S. G. Potts for the defendant Allen.
   The Chancellor.

A decree will be made for the payment of the mortgage to Allen.

Decree accordingly.


text:
    Jacob Goodheart v The President and Directors of the Raritan Mining and Manufacturing Co. and James S. Gwynne.

      If upon bill and answer the Court is not satisfied of the insolvency of a corporation, an injunction allowed on the bill, under the “ Act to prevent frauds by incorporated companies,” will be dissolved.
    On the 23d March, 1849, Jacob Goodheart exhibited his bill, for himself and such other creditors of “ The President and Directors of the Raritan Mining and Manufacturing Company” as should come in &c., stating the incorporation of the said Company, by act of February 25th, 1846; that he is unapprised ■whether any election for Directors or President was ever held ; that the affairs of the Corporation have been managed principally by James S. Gwynne, of the city of Now York, acting as Secretary or Secretary and Treasurer of the Company, and one Stephens, said to reside at Wheeling; that at the instance and request of Gwynne, the complainant, on the 2oth Nov. 1848, entered into an agreement with Gwynne by which he, the complainant, agreed to build a furnace and chimney at the Raritan mine, (describing the work to be done,) the complainant to furnish the materials, and haul the iron work from New Brunswick; the iron work to be furnished by Gwynne; and Gwynne agreed to pay for the work to be done and materials to be furnished by the complainant, $725, as follows: $250 when the brick are on the ground at the mine; $100 when the walls of the furnace shall be ready io receive the boilers, and the chimney is finished; and $375 when the work is completed. That the complainant proceeded with the work till in Dec., 1849) when he was compelled to stop by reason of Gwynne’s neglect to furnish the boilers, &c.
    The bill states that, since the 1st of Jan., 1849, the ordinary business of the Corporation has been suspended, and for want of fands to carry on the same; that many debts, amounting in the aggregate to a large sum, are in arrears and unpaid; and that several judgments have been obtainedjigainsi said Company before P. P. Runyon, a Justice of the Peace, and executions issued thereon, and levied on the personal property yet remaining on the premises attached to the mining establishment. That tools and implements indispensable to the prosecution of such mining business have been, from time to time, during and since the month of Feb., 1849, carted from said premises and taken to the city of New York, by order of said Gwynne, or his clerk or agent, one John Jones, doing business in Wall st., New York; and that but for said executions still further removals of such property and articles were to have been made within a few days last past. That the laborers having been employed by Gwynne were unable to obtain the payment of their wages as the same became due, and after waiting some days, were finally induced, as the complainant is informed and believes, to accept of part in lieu of their just dues, and several weeks since withdrew from the premises; and that for some weeks last past the said mining premises have been in charge of a single individual, and for the period aforesaid all mining and manufacturing business has been totally suspended on said mining premises.
    The bill states that there is due to the complainant $>335 for the work so done by him under the said agreement, at the request of Gwynne, for the said Corporation. That Gwynne objected to the account of the complainant, and insisted on a deduction of $ 100; and that the complainant, apprehensive of the loss of part if not the whole of his account, agreed to make such deduction if the balance should be paid within a few days; which Gwynne undertook and promised to do, and induced the complainant again and again to attend in New York at times by him appointed; but, under various pretences, Gwynne failed and refused to make any payment.
    The bill prays an injunction restraining the Corporation from receiving any debts due to it, and from paying or transferring any debts or effects of the Corporation ; and from exercising any of the franchises or privileges granted by the said act of incorporation ; and for a receiver.
    An injunction was granted, and a receiver appointed.

      Separate answers were put in by the Company and James S. Gwynne.
    The answer of the Company states, that an election of five directors was made by the stockholders attending for that purpose in person or by proxy; and that such directors, as soon as might he after the election, proceeded to elect one of their number to he their President; and that the Corporation have ever since been and now are duly organized under their charter, and that ever since, the stock, property and affairs of the Corporation have been managed by a Board of five Directors; and they deny that the affairs of the Corporation have been managed principally by James S. Gwynne, of the city of New York, acting as Secretary or Secretary and Treasurer of said Corporation, and one Stephens, said to reside at Wheeling.
    They say that they do not know of their own knowledge, but only upon information and belief, that at the instance and request of Gwynne, on the 25th November, 1848, the complainant entered into an agreement in the words and to the purport in the hill mentioned; and that they deny the same, but they insist that it appears by the said agreement and the bill, that they- are not hound by the said agreement.
    They say they do not know, but are informed and believe, that the complainant advanced with the things to he done by him until he was compelled to stop, in Dec., 18485 but whether he was compelled to stop at that time by reason of Gwynne’s neglect to furnish the boilers, &c., they are without knowledge, information or belief, and therefore deny the same.
    They deny that since the 1st January, 1849, the ordinary business of the Corporation has been suspended, and for want of funds to carry on the same, and that many debts, in the aggregate amounting to a large sum, have been unpaid, and are now or wore at the time of the filing of the bill, in arrears and unpaid.
    They admit that two small judgments, amounting in the whole to $140, have been, erroneously as they believe and allege, recovered against the Company, before P. P. Runyon, and executions issued thereon and levied on the personal property (sufficient to pay the same,) remaining on the premises attached to the said mining establishment, but that the property so levied on has not been advertised or sold ; and that these are the only judgments against said Corporation, either in this State or elsewhere.
    They deny that tools and implements indispensable, &c., have been from time to time, since and during February, 1849, carted from the premises and taken to the city of New York by the order of Gwynne or his clerk and agent, one James Jones, doing bu-sines in Wall street, New York; or that but for the executions aforesaid, still further removals of such property and articles were to have been made within a few days last past, or within a few days before the filing of the bill.
    They deny that the laborers, having been employed by Gwynne, were unable to obtain the payment of their wages as the same became due; or that after waiting some days they were finally induced to accept of part in lieu of their just dues; or that by reason thereof they, several weeks before the filing of the bill, withdrew from said premises; but, on the contrary, they say that the laborers who have heretofore worked for the Coi’poration have always received in full their true amount of wages ; and that said laborer's are now ready and anxious and willing to work in said mine again whenever the business of the Corporation shall be resumed.
    They admit that for some weeks next before the filing of the bill, the premises have been in ehax’ge of a single person; and that for the said period all mining and manufacturing business has been totally suspended on said mining premises; but they say that such suspension has not occurred by reason of the want of funds, but from prudential motives of expediency; and that there is not now, nor has there ever been, any suspension from any other cause; and that it is the intention of these defendants to resume such business in a short time.
    They say that the said Corporation is perfectly solvent, and abundantly able to pay all their debts, and have a large amount of funds remaining.
    They deny that any such amount as is alleged in the bill is due to -the- complainant, either from the defendants or from Gwynne ; and deny that they have suspended payment of all or any of their just debts.
    The answer of Gwynne is generally the same. He further asserts, that he objected to the amount of complainant’s bill, and insisted on a reduction of $100, and that the complainant agreed, to the reduction; but he denies that the complainant so agreed from feeling apprehensive of the loss of the whole or any part of his account, or that said deduction was only to be made in case the balance should be paid in a few days 5 or that he induced the complainant again and again to attend in New York at timos appointed by this defendant; or that under various pretences he failed or refused to make any such payment.
    He admits that he undertook and promised to pay the said balance in a few days, but was prevented from doing so by the absence from the city of New York of an individual whom he wished to confer with on the subject; and he says it was not on account of a lack of funds, but from a discretionary and pruden tial motivo alone.
    He denies that any such balance as is stated in the bill was due the complainants, either from him or from the said Company.
    On these answers a motion was made to dissolve the injunction.
    Robinson, (of the city of New York,) in support of the motion.

      Leupp contra.
   The Chancellor.

On the bill and answer, the insolvency of the Company does not satisfactorily appear. The injunction will be dissolved.

Order accordingly.

See 1 Green’s Ch. 178; 3 Ib. 187.


author: The Ordinary.

text:
    In the matter of the division of the real estate of Isaac Coombs, deceased.
    In a petition to the Orphans’ Court for a division of lands, the petitioner stated that he was entitled to one undivided fourth part of the lands. On the report of the Commissioners that the lands could not be divided without prejudice to the owners, the Orphans’ Court ordered a sale of the lands. On application for the division of the proceeds, the petitioner offered evidence to show that by the bankruptcy of an owner of another fourth, and the sale of the bankrupt’s fourth by the assignee in bankruptcy, and the purchase thereof by the petitioner, he was entitled to this fourth, also, of the proceeds of the sale, though these facts were not stated in his petition for the division of the lands.
    The Orphans’ Court refused to admit the evidence.
    On appeal,, the order of the Orphans’ Court was reversed.
    In August, 1846, John R. Coombs presented his petition to the Orphans’ Court of Mercer for the appointment of Commissioners to divide certain lands, of which he states in his petition, that he is tenant in common with Amos Coombs and the heirs of Isaac Coombs, Jr., and the heirs of Euphemia Butcher, and in wliioh lie states that he is entitled to one-fourth, and Amos Coombs to one-fourth, and the heirs of Isaac Coombs, Jr., to one-fourth, and the heirs of Euphemia Butcher to ono-fourth; two of the children of Euphemia Butcher being minors.
    Commissioners were accordingly appointed to mako partition, of the said real estate in the shares and proportions mentioned in the petition.
    In October, 1848, the Commissioners reported that the lands were so circumstanced that partition thereof could not be made without great prejudice to the owners ; and in December, 1849, an order was made by the Orphans5 Court directing the Commissioners to sell the said real estate.
    The Commissioners, accordingly, sold the lands, on the 11th February, 184.7; and the proceeds of the sale were $2,682 10. The sale was confirmed and deeds ordered, by the Orphans5 Court, to be executed, to the purchasers.
    In June, 1847, on the allegation of said John 31. Coombs that the share in said real estate which was stated in his petition to belong to the heirs of Isaac Coombs, Jr., deceased, is really the the property of him, the said John 11. Coombs, the said Orphans5 Court made an order that the heirs at law of said Isaac Coombs, Jr., deceased, (naming them,) show cause, on the first day of the then next term of the Orphans’ Court, why the net proceeds of said share should not be ordered by the said Court to be paid by the Commissioners to the said John 11. Coombs.

      J. R. Coombs subsequently died; and in October, 1847, Wm. Chamberlain, the administrator of his estate, was substituted in his place as a party in the said rule.
    At the hearing on the rule to show cause, Wm. Halsted, on the part of the administrator, offered a witness, to prove that Isaac Coombs, senior, was tenant by the courtesy of the lands which had been sold, the proceeds of which were now in question, and that his wife, who was a daughter of Amos Rogers, had the fee simple. That she died before her husband, Isaac Coombs, senior. That the one-fourth of her title vested, at her decease, in Isaac Coombs, Jr., now deceased. That Isaac Coombs, Jr., became a bankrupt in May, 1842 ; and that his title in the premises was sold by his assignee in bankruptcy, and purchased by John R. Coombs ; under which purchase the administrator of John R. Coombs claims the share of Isaac Coombs, Jr., deceased. And that Isaac Coombs, Jr., died before his father, Isaac Coombs, senior.
    Jos. C. Potts, on behalf of the heirs of Isaac Coombs, Jr., objected to this evidence as contradictory to the petition of John R. Coombs and the previous proceedings in the case ; and the Orphans’ Court overruled the evidence, and ordered the Commissioners to pay to the said administrator of John R. Coombs one-fourth of said moneys, deducting one-fourth of the charges; and to the heirs at law of Isaac Coombs, Jr., deceased, one-fourth, deducting, &c.; and to the heirs at law of Euphemia Butcher, one-fourth of said moneys, deducting, &c.; and that the Commissioners retain in their hands the residue of said moneys subject to the further order of said Court.
    From these orders the said administrator of John R. Coombs, deceased, appealed to this Court.

      W. Halsted for the appellant.
    He cited 1 Zab. Rep. 395.

      Jos. C. Potts for the respondents.
   The Ordinary.

The Orphans’ Court should have received

the evidence offered. There must be a reversal.

Order accordingly.


author: The Oedinahy.

text:
    The Executors of Reeve v. The Administrators of Townsend ; on appeal from the Orphans’ Court of Cumberland county.
    On an application to the Orphans’ Court for arc-settlement of the accounts of administrators, one of the grounds stated in the notice was, that the administrators had not charged themselves with all the monies they had received. On the hearing of the application, the applicants offered to prove by a witness that he paid to the adxnintrators two sums of money, and to produce receipts for moneys received by agents of the administrators. The Orphans’ Court refused to admit the testimony.
    The Prerogative Court, on appeal, decided that the evidence was admissible, and directed that the rejected testimony, and any other competent testimony to the same point, and also any farther testimony which the administrators might desire to put in for the purpose of overcoming it, be taken before one of Ps officers, and the appeal be thereupon brought to hearing.
    The facts of the case sufficiently appear in the opinion of the Ordinary.

      W. Halsted for the appellants.

      L. Q. C. Elmer for the respondents.
   The Oedinahy.

The applicants for a re-settlement of the accounts offered to prove before the Orphans’ Court, by Joshua Brick, that he paid to the administrators $316, and at another time $800. They also offered to prove by this witness the receipts for payments of moneys received by Cooper & Townsend, as agents of the administrators, in the years of 1846 and 1847. The Court overruled the evidence.

They also offered to prove by Jeremiah Clark the payment of $71 to the administrators. The Orphans’ Court rejected the evidence.

It seems to me that this evidence should have been admitted. It was said by tbe counsel for the administrators that in the reasons filed and served by the order of the Orphans’ Court it is not stated that the receipt of these specific moneys from the persons from whom they are said to have been received would be shown as a ground of the application for a re-settlement. I think the evidence was admissible under the reason or ground stated in the notice, that the administrators had not charged themselves with all the moneys they had received. There is •nothing in the statute, or in the nature of the case, requiring a particular specification of the moneys charged to have been received, and the persons from whom received, to be served on the administrators. The evidence offered was of specific sums received from particular persons. Administrators must be presumed to be at all times ready to account for moneys received. If they had charged themselves with the moneys in their account, they must be presumed to be able to show the charge.

If'their accounts are so stated that it cannot he told whether the monies are charged to them or not, they ought to be put to show that they are charged to them in the account.

But what can this Court do % How is the error of the Orphans’ Court in overruling The evidence to be corrected 1 This Court cannot, for such error, open the accounts and charge the moneys to the administrators, because it may be that, if the evidence offered had been received, the administrators might have shown that they were charged with them in the account.

They are charged in their final account with £c amount received on book accounts not appraised, $2,275.76.” Whether the moneys which the applicants for a re-settlement offered to prove were received by them, as above, are included in this sum of $2,275.76 or not, this Court cannot determine from the accounts. Shall the Court send the matter back to the Orphans’ Court, with instructions to receive the evidence offered, and to proceed to another adjudication ? This course might produce interminable delay.

It appears to me that the safer course is to direct the rejected testimony to be taken, and any other competent testimony to the same point, and also any further testimony which the administrators may desire to put in for the purpose of overcoming it, and thereupon to determine the matter here.

The applicants for a re-settlement proved, by David Kinsey, that the intestate had, indirectly, an interest in a vessel building at Tuekahoe. That Kinsey & Cooper took the vessel, and gave the administrators a note — the amount he thinks was over $200. That lie, Kinsey, paid the note to the administrators, gome two years after the intestate’s death. On cross-examination he says, that the administrators did not realize any thing from the vessel except what they advanced. That he paid them back what they advanced, by the note, with interest from the time advanced.

1 find that in the accounts of the administrators, they take credit for allowances on new schooner, $450 and the note received by them from Kinsey & Cooper is not charged to them.

This, as tlie accounts and the testimony now stand, would appear to be a mistake. But I am willing to allow the parties to take further testimony as to this matter also, if it be desired.

Order accordingly.


author: The Chancellos.

text:
    The Trenton Banking Co v. John McKelway.
    The route of the raceway of the Trenton Delaware Falls Company was located over certain lots belonging to B, The Company appointed a committee to negotiate with, the land owners for the purchase of the lands over which the route was located. M., who was President, and one of the acting managers of the Company, told the committee that he would take upon himself to effect an arrangement with B for the purchase and possession of his said lots for the Company, and the committee thereupon intrusted the negotiation with B to If. M. bought B's lots for $50 a lot, and took a deed for them in his own name, the deed stating the consideration to be $100 a lot. The Company offered B what he had paid for the lots; and went on and con. • structed their raceway over the lots. B. was perpetually enjoined from bringing ejectment to recover possession.
    M. owned another lot over which the raceway was located and constructed, and was President and one of the acting managers of the Company at the time of such location and construction, and made no objection to, but took part in the direction of the proceedings of the Company in locating and constructing the raceway on and over the said lot. He was perpetually enjoined from bringing ejectment to recover possession.
    An issue was ordered to ascertain the value of the lots.
    The hill, filed January 9th, 1845, states that an act of the Legislature, passed Feb. 16,1831, incorporated a company under the name of “ The Trenton Delaware Falls Company,” and authorized said Company to erect a wing dam in the Delaware river, between the month of the Assanpink and the head of Wells’s Falls, and a raceway along and near the hank of said river, in the neighborhood of Trenton, and to cut a main raceway from said wing dam to any point below the Trenton Falls, and not exceeding one and a half miles therefrom; and authorizng the said Company to enter on all lands, &c.; and when a location of said wing dam and the route or routes and location of said main raceway, branches and improvements should be determined, and a survey thereof, with the lands necessary for the same, should be completed and deposited in the office of the Secretary of State, it should be lawful for the Company to enter upon, take possession of and use all and singular such lands, subject to such compensation to bo made therefor as in the act after provided. That a location, &c., was made, &c., and a survey thereof, with the lands necessary for the same, was completed, and deposited in the said Secretary’s office.
    That the route of the said main raceway was located through a part of the township of Nottingham, and was laid out over and across certain lots of land and premises in said township belonging or said to belong to one Thomas Black.
    That, at a meeting of the managers of said Company, the said managers proceeded to consult upon tho measures necessary to bo taken by the Company to agree with the owners of the lands along the route of said racew'ay, for the purchase of the same; and the said managers appointed Wm. P. Sherman, the Treasurer, and Joseph C. Potts, tho Secretary of said Company, to negotiate with several of the said land owners for the purchase of the said lands, and among others to negotiate with said Thos. Black for tho purchase of his lands. That John McKelway, (the defendant,) then being the President or one of tho managers of the said Company, and present at the meeting of the managers above referred to, after tho appointment of the said committee, informed the said Sherman and Potts, or one of them, that they neéd not communicato with the said Thomas Black for the purchase of liis lands, as he, McKelway, would personally attend to that arrangement with said Black, on the part of the Company, he, McKelway, having, as he stated, peculiar facilities and opportunities for effecting the purchase of said lands from said Black, upon terms favorable and advantageous to the Company, as he, McKelway, was attending in the family of said Black as a physician, and he would take upon himself to effect an arrangement with the said Black for the purchase or possession of said lands for the Company.
    That, in pursuance of such voluntary offer on the part of McK., the negotiation for the purchase of said lands from said Black was intrusted to McK., then President, or one of the acting managers of the Company, the said committee not deeming it necessary for them to attend further thereto.
    That said McK. obtained a deed from said Black, conveying the title of said lots of land; and, in place of having them conveyed directly to the said Company, caused or permitted his own name to be inserted in said deed; and also caused or permitted the sum of f 100 each, to be inserted in said deed as the consideration money; whereas the said McK. had given but 060 to Black for each of said lots; and McK. subsequently informed the President of the Company, that he had purchased the said lands of Black, and offered to convey the same to the Company upon the payment to him of the sum he had given for said lands, which he stated to be 0100 each. But the Company having been previously informed that 050 each was the true consideration paid to Black, declined to pay McK. 0100 each informing him that 050 each was the true amount paid by him, which they were ready to pay him, as they considered him the agent of the Company in the purchase of said lands, and that he had volunteered to act as such on the part of the Company and that they considered him as holding the said lands as the trustee of the Company, and for their use.
    That for the purpose of constructing their main raceway, the said Company entered into the possession of a certain other small piece of land, in said township of Nottingham, over which the location of said raceway had been made, which said land was said to belong to or be in the occupation of the said McKelway ; and that the said entry upon and occupation of the land last named was made by the Company, by and with the full consent and approbation of said McK., he being at the time President or one of the acting managers of the Company, and uniting in and directing all the acts of the Company, and knowing that the said raceway was to be constructed across said land, and consenting in and directing such location to be made.
    That the said act of incorporation provides for the appointment of commissioners to assess the value of the land taken by the Company, and directs that upon the tender of such valuation to the land owner the title shall thereupon vest in the Company. And the complainants are informed and believe, that the said Company would have proceeded in that manner to obtain the title to the said lands if they had not boon permitted, authorized and directed by said McK. to enter upon said lands, and use and occupy the same, with the full understanding that he would convey the same to the Company when called upon to do so.
    That said Company have erected their raceway, branches and improvements, at an expense of more than §200,000, and put the same in operation according to the purposes and provisions of their charter; and that a very large amount of capital has been invested in the erection of numerous mills and manufactories along the route of their raceway, which are supplied with water therefrom.
    That, some time in 1848, the said Company having become embarrassed in their affairs, a bill was filed in this Court by A. Corrigan, for himself and other creditors of said Company, praying, &c,; and such proceedings were had thereon that receivers were appointed, and were ordered to make sale of the lands and effects of said Company, and that the receivers accordingly did, on the 26th February 1844, make public sale of said lands, including the raceway of the Company; and at such sale the complainants became the purchasers thereof, and entered into the possession of the same, and, among others, of the lots of land above described.
    That some time in October, 1844, McK. commenced an act of ejectment, in the Supreme Court, against the complainants, for the lands above mentioned with the usual notice to the complainants, as the tenants in possession, to appear, &c., on the second Tuesday of November, 1844.
    That although the complainants have become the purchasers of said premises, and are in the possession thereof under the sale made as aforesaid, under the direction of this Court, yet that certain persons pretending to be creditors of said Court have questioned the title of the complainants, and have filed a bill and commenced proceedings in this Court, disputing the validity of the title made to the complainants, and praying this Court to vacate and set aside its decrees and proceedings in the aforesaid suit in which said Corrigan is complainant, and to declare null and void the sale of the works of said Company made by the said receivers to these complainants, which bill and proceedings are now pending and undetermined in this Court; and the complainants believe that, while the said matters involved in the said proceedings remain pending, the complainants will receive the aid and protection of this Court to preserve the entire possession and unity of said works, to the end that, if the said sale should be vacated by any decree of this Court, and the complainants required to return the possession of the said works to the custody of the receivers, the complainants may be enabled so to do in the same condition as received from the receivers; and the complainants believe, that while the proceedings aforesaid remain undetermined, the said works still remain under the care, custody, and direction of this Court.
    That should said McK. be permitted to proceed in said ejectment, and obtain the possession of, said lands, it will be in his power to destroy entirely the value of the raceway, works and improvements of the said Company now completed, and to stop the mills and manufactories now in operation; which will produce an immediate injury to the complainants, involve in ruin many of the mill owners along the raceway, who have invested therein large amounts of capital, and throw out of employment a great number of workmen, who, with their families, are dependent for their employment and subsistence thereupon; inasmuch as said McK., by obtaining the possession of said lots, may draw off the water from the raceway, and refuse to sell the said lands to the complainants, or only upon such terms as would be highly injurious and oppressive.
    That if it shall appear that said McK. has not received from said Delaware Falls Company a suitable compensation for the lands so taken and occupied by them, although the complainants maintain and insist that said McK. should seek his redress therefor against said Falls Company, and not against the complainants ; nevertheless, the complainants are ready and willing that the value of such lands should be ascertained and estimated, in the mode directed by said act of incerporation of said Falls Company, or in any other manner this Court may direct, an are ready and willing to pay the amount so to be ascertained in the manner directed by this Court.
    That an agent of the complainants has, in a friendly manner, applied to said MoK., and requested him to come to a fair settlement, &c.
    The bill prays that McK. may be restrained by injunction from prosecuting the said action of ejectment; and for such further and other relief, &c.
    The injunction was allowed.
    The defendant put in his answer on the 19th February, 1845. He admits that the managers of the Falls Company met and consulted, &e., as stated in the bill, and appointed William P. Sherman and Thomas J. Stryker, not Joseph C. Potts, to negotiate, &c., as stated in the bill.
    He admits that he was, at the time, President of the Board of Managers of said Falls Company, and present at said meeting, and that said Sherman and Stryker requested him to aid in the negotiation with Black for his land; and on that request he believes he did say to said Sherman or Stryker that they need not attend or communicate with Black, as he, the defendant, would personally attend to that arrangement on the part of the Company, as he was acquainted with Black and frequently saw him, and that he would take upon himself to effect an arrangement with Black for the purchase and possession of said lands for said Falls Company; but ho denies that he said he had peculiar facilities and opportunities of effecting said purchase.
    He admits that, in pursuance of said offer, the negotiation for the purchase of Black’s land was entrusted to him, ho being President and one of the acting Managers of said Falls Company.
    He admits he obtained a deed from Black, conveying the title of said lots ox land to him ; but he denies that said deed was ever intended to he made by Black to tbe said Falls Company, or that ho ever permitted his own name to be inserted in the deed instead of said Falls Company.
    He says that, when he undertook to negotiate with Black and applied to him to sell said lots to the said Falls Company, the price demanded by Black for said land was $300; and, after the Company refused to take said lots at that price, and after the negotiation for them by this defendant in behalf of said Company had ceased for several months, he entered into a negotiation for them on his own account, and finally agreed to purchase said lots on his own account for $250. He denies that he caused or gave any permission to have the sum of $100 inserted in said deed as the consideration money for the purchase of said lots of land.
    He admits he gave Black $250 for his land, which was at the rate of $50 per lot for each of the. lots purchased by him of Black. But that the sum for which he first contracted for said lots was $300 ; and that afterwards, when said Falls Company declined taking the®, Black agreed to sell them to this defendant for $250.
    He denies that he subsequently informed the President of said Falls Company that he had purchased said lands of Black and offered to convey them to said Company upon payment to him of the sum he had given. But he has no recollection that he stated that he gave $100 for each lot, and therefore denies the same.
    He admits that said Falls Company declined to take said lots, or to pay him for them, either at $100 or at $50 per lot; but he denies that said Company ever tendered themselves ready or willing to pay him $50 per lot or any other sum ; and also denies that said Company ever informed him that $50 was the true amount paid by him for said lands, which they were ready and willing to pay, or that they considered him as holding said lands as the trustee of said Company.
    He admits that said Company, for the purpose of constructing their main race-way, entered into the possession of a certain other small piece of land in Nottingham ; but he denies that the location of said race-way, as originally surveyed and located by the engineer of said Company, was over and across said lot; and he has no knowledge, information or belief that any survey or location of said race-way was ever made over and across the said land belonging to him. But says, that the location and survey of the route of the main raceway, as made and deposited in the Secretary’s office, did not touch, take or run over any more than two of the lots of this defendant, purchased by him of said Black; and that, after the said location thus made, and without any new route having been located or surveyed according to the provisions of the charter of said Falls Company., the said Company varied from the route of the main race-way ~ thus located and filed, and constructed their said main race-way on, over and across throe other of the said lots of land purchased by said defendant of said Black, and also on, over and acrosf. three other lots of this defendant which, he had purchased of-----Shoemaker ; and which three last mentioned lots lie on the west-side of a street called Asfcury street. And of the five lots purchased of Black, throe lie on the east side of said Ash ary street,- and the others lying still further east, and are divided from the last mentioned by an alley or street called George street, as by a map of said lots correctly made by an engineer of said Company, and now in the possession of this defendant, will appear.
    He admits that ho knew that the said Company entered upon and occupied the said lot; but denies that he ever gave said! Company any consent so to do, or that they ever paid him fop said lot, or that he ever entered into any agreement with said! Company to convey to them the said lot or to allow them to enter upon and occupy it.
    He denies that he ever permitted, authorized or directed tha Company to enter upon the said lands and to use and occupy the-same with the full understanding that he would convey the samato said Company when called upon to do so.
    He admits that the Company have erected their raceway, &e.„ at an expense of more than $200,000, and put the same in operation ; but he denies that it was done according to the purposes? and provisions of their charter. And admits that a very large-amount of capital has been invested in the erection of numerous mills and manufactories, &c. But ho says that all the money-expended in erecting said race-way, branches and improvements-of said Company was expended in the erection of their race-way., branches and improvements above the lots of land of said defendant, except about $3,000 or $4,000.
    He admits the appointment by this Court of Receivers of said Falls Company; and that the Receivers were ordered to make-sale, See.; and that the complainants became the purchasers of the property of the Company and entered into possession thereof ; and that the complainants entered into possession of the lots of land of this defendant in the complainant’s bill described. But he denies that the Receivers ever sold said lots of land to said complainant, or had any authority under said decree to sell said lots of land, or that the complainants ever purchased said lots or have any title whatever to the same; and insists that their entry and possession of them is wholly illegal and tortious.
    He admits he has brought ejectment. He denies that the complainants ever became the purchasers of the lots of land and premises belonging to him in the complainant’s bill described, or were ever put in possession thereof under said sale, although he admits that they did become the purchasers of lands and premises to which the said Falls Company had a legal title at the time of said sale made by the Receivers, and that they entered into possession, under said sale, of such lands as said Falls Company had a legal title to.
    He says that the bill mentioned in the bill of complaint as having leen filed to set aside the proceedings and decrees of this Court ia the case of Corrigan has been dismissed; and he therefore denies that there are any proceedings pending and undetermined in this Court in which the validity of the sale of the Receivers is questioned. But he insists that if the validity of the Recevers’ sale to the complainants of the property of said Falls Company was questioned by any proceedings in this Court, it affords no legal or equitable ground to take from this defendant his property which was not included in said Receivers’ sale; and which said Receivers, as the complainants well knew at the time of their purchase, had no right so to do. And he insists, that the complainants are entitled to no aid or protection from this Court under the pretext set forth in their bill, that, if they should be required to return the possession of said work to the custody of the Receivers, the complainants may be enabled to do so in the same condition as they were received from said Receiversj because the said Receivers never sold the said lots of land of the defendant in the complainants’ bill described to the complainants, nor did the complainants receive possession of said lots from the Receivers ; and that tho complainants have no legal or equitable right to the possession of tho said lots of land of tho defendant.
    He denies that, if ho is permitted to proceed in the ejectment and obtain possession of said lands of defendant, it will be in Ms power to destroy entirely tho value of tho raco-vray, works smñ. improvements of tho Company now completed, or to stop the mills and manufactories now in operation, or produce irremediable injury to the complainants ; though lie admits ho might stop three of the mills which have been erected below his said lots of land, and which are situated on tho property purchased by tho said Falls Company of J. B. Sartoni; and only one of said mills is in operation, and the others only partially so. But he has no desire to do any injury to the mill owners, the workmen employed in said mills or their families.
    He insists that the complainants knew perfectly well the situation of the title to those lots of land of this defendant at tfeo tiimytlioy made the purchase of the real estate and franchises of tho Falls Company, Ph. Dickerson, the President of the Trenton Bank, having been President of the Falls Company, And this defendant is tho more induced to believe that the complainants knew that the Falls Company had no title to tho lots of land of this defendant in their bill mentioned, from the fact that all the works and improvements of said Falls Company,, with their franchises, were sold free of all incumbrances, by the Receivers, of whom said Ph. Dickerson was one, for the small sum of $50,000; the lands and improvements of said Company, independent ox their corporate franchises, having cost, according to tho statement of the bill, more than $200,000.
    He says he has never received any compensation for his said lots of land from said Falls Company, and that said Company have, by a decree of this Court, been declared insolvent; and that it would be inequitable and unjust to turn him over to au insolvent corporation to seek payment for lands which the complainants are now enjoying, and which they never purchased and . for which they never paid anything.
    He says that the value of bis lands taken possession of by said Falls Company cannot now be ascertained and estimated in the mode and manner directed by their act of incorporation, because ¿he provisions of said act were wholly violated and disregarded In relation to six of the lots of land of this defendant.
    He further insists, that this Court has no power to take away 4he lands of this defendant and give them to a private corporation, nor to compel him to part with them against his consent, ¡nor determine or ascertain the sum for which he shall be compelled to sell them.
    He denies that the complainant ever applied to him previous to the commencement of said ejectment and requested him to «orne to a fair and just settlement of the matters in controversy. ¡But he says that previous to the commencement of said ejectment ike repeatedly urged upon the Trenton Delaware Falls Company úo come to a settlement with him, which they wholly neglected and omitted to do.
    •'On this answer, a motion was made to dissolve the injunction.

      W. Halsted in support of the motion.
    He cited 6 Hill’s Ch. Hep. 61; 5 Barn. & Cres. 221; 1 Wend. 380; 1 Hoffman’s Ch. 166; 1 Clark’s Ch. Rep. 84; Saxt. Ch. 298.

      P. D. Vroom contra.
    He cited 1 Mad. Ch. 209; 1 John. Ch. 354; 6 Ib. 166, 9.
    The Chancellor, retained the injunctions until the hearing of the cause.
    Depositions were taken, and the cause was brought to hearing on the pleadings and evidence.

      S. G. Potts and P. D. Vroom for the complainants.
    They <eited 1 John. Ch. 353; 6 Ib. 167; Story on Agency, sec. 211; 1 Story’s Eq. Jur., sec. 321, 2; 1 Peters’ C. C. Rep. 307 ; 2 Stark. Evid. 745; 1 Story’s Eq., sec. 385, 6 ; Ang. §• Ames on Corp. 593 ; Paley on Agency, 10, 11; Saxt. Ch. 10.

      W. Halsted for the defendant.
    He cited Gresl. Eq. 241; 2
      Story’s Eq., sec. 1201 a: Eden’s Ch. Rep. 515; 2 John. Ch. Rep. 405; Prec. in Ch. 261; 2 Ves. Sen. 90; 1 Harr. Ch. 200 ; Saxt. Ch. 298.
   The Chancellos.

Tho Trenton Delaware Falls Company was incorporated in 1881. Tho route of the main raceway, as located, crossed certain lots belonging to Thomas Black. The Company appointed a committee to negotiate with the land owners, including Black, for tho purchase of the lands on and over which the raceway had been located. The defendant, who was then President, and one of the acting managers of the said Company, told the said committee that they need not communicate with Black; that he, the defendant, would attend to that arrangement on the part of said Company, and would take upon himself to effect an arrangement with Black, for the purchase and possession. of his said lots for the said Company ; and in pursuance of this offer, tho negotiation for the purchase of these lots was intrusted by the committee to the defendant. The defendant bought the lots of Black for $50 a lot, and took a deed for them in his own name, the deed stating the consideration to bo $100 a lot. The bill states, that the defendant subsequently offered to convey the lots to the Company on the payment to him of $100 a lot; but that the Company, having been previously informed that they were bought by the defendant for $50 a lot, declined to pay more, and informed tho defendant that they wore ready to pay him what he had paid or agreed to pay; and that the Company considered him as holding the lots as trustee for tho Company for their use. The answer to this statement of tho bill is so unsatisfactory that I must take the statement as a part of the case. The Company constructed their raceway over the said lots, and also over another small lot of land belonging to the defendant, with the knowledge of the defendant, and without any objection made by him, he still being the President and one of the acting managers of the Company; the Company, under these circumstances, not taking any of the measures proscribed by the charter to ascertain the value of these lots, and acquire tho legal title thereto, which the bill says they would have done if they had not been permitted, authorized and directed by the defendant to enter upon, use and occupy the same with the full understanding that the defendant would convey the said lots to the Company-when called upon to do so. The answer admits that the Company took possession of and constructed their raceway on and over the said lots with his knowledge, but denies that he permitted, authorized or directed the Company to enter upon, use and occupy the said lots with the full understanding that he would convey the same to the Company when called upon to do so. This part of the answer also, is unsatisfactory. The defendant may use the words “with the full understanding” in a different sense from that in which they are used in the bill. It is not a sufficient denial of the substance of the charge, Besides, he knew of the occupancy of the lots 'by the Company,' and of their making their raceway thereon, and not only made no objection thereto, but was President and one of the acting managers of the Company at the time, and he does not deny that, as such President and acting manager, he took part in directing the proceedings of the Company in making their raceway through the said lots ; which is one of the charges made in the bill.

The said Company went on and finished their raceway, branches and improvements, at an expense of more than $200,000, and put their works in operation; and many mills- and manufactories were erected along the route of the raceway, which are supplied with water therefrom.

In 1843, on a bill filed by creditors of the said Company, receivers were appointed; and, in February, 1844, the lands of the Company, including the raceway, were sold at public sale, and were bought by the Trenton Banking Company, the complainants in this suit.

In October, 1844, McKelway, the defenndant in this suit, commenced an action of ejectment against the said bank for the-said lots.

The complainants say, in the bill, that if it shall appear that McKelway has not received from the said “ The Trenton Delaware Falls Company” a suitable compensation for the said lots so taken and occupied by them, although they insist that Mc-Kelway should seek his redress therefor from the said Trenton Delaware Falls Company, and not from these defendants, yet the complainants are ready and willing that the value of the said lots should be ascertained in the mode directed by the act incorporating tho said Company, or in any other manner this Court may direct, and are ready and willing to pay tho amount, so to be ascertained, in the manner this Court shall direct.

On tho case thus made by the bill and answer, I am of opinion that the defendant should not bo permitted to proceed in his action of ejectment to recover possession of such parts of the lands mentioned in the pleadings as are occupied by tho raceway.

As to the lots purchased of Black, ho assumed the agency to buy them for the Company, and bought them without giving any notice or intimation to the Company that he considered his agency for them at an end, and while the Company rightly supposed ho was acting for them in his negotiations with Black. He must therefore bo held to have acted for tho Company in the purchase; and, having taken tho deed in his own name, he must be considered as holding the title as trustee for the Company.

As to the other lot, tho question involved is, whether the defendant, who was Presidont, and one of the acting managers of the Trenton Delaware Falls Company at the time the raceway was located and constructed on and over this lot, and who not only made no objection to such location and construction, but took part in the direction of the proceedings of the Company therein, shall he permitted, after the Company have incurred the expense of locating and constructing their raceway, to oust them by ejectment from their possession so acquired. I am of opinion that he should not, and that the injunction should be continued. As to the course to be adopted beyond this, I am willing to hear the suggestions of counsel. Perhaps the prayer for further relief, connected with the offer made in tho bill to pay the value of tho lots thus occupied by the works of the Company, to bo ascertained in such mode as the Court shall direct, may authorize the direction of an issue to ascertain such value.

The counsel consented that an issue should be directed, and it Was ordered accordingly.


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    Richard Vervalen v. Obadiah Older and others.
    An injunction against a mortgagor, restraining him from quarrying on a quarry lot, the half of which was conveyed as such to him by the mortgagee, and to secure the consideration for which conveyance the mortgage was given, was dissolved on answer denying the charges in the hill from which it might bo inferred that the defendant was improperly impairing the value of the mortgaged premises and endangering the complainant’s security.
    The hill, filed Nov. 19,1849, is for the foreclosure of a mortgage, dated February 24th, 1845, given by Obabiah Older and Margaret his wife, to Richard Vervalen, the complainant, of the equal and undivided one-half part of a stone quarry, lying at the edge of the Hudson river, and particularly described iu the bill, to secure tbe payment of a bond of tbe same date, executed by the said Obadiah Older to the complainant, in the penal sum of five hundred dollars, conditioned for the payment of $250, as follows : $100 on the 24fch of February, 1847; $100 on the 24th of February, 1850; and $50, the residue, on the 24th of February, 1851, with interest yearly on each payment from the date of the bond, at 5 per cent, a year; and it was provided, in the condition of the bond, that if any default should he made in the payment of any of the said sums, or of the interest, at the specified time for payment, then that, after such default, that part of the principal of each payment that should be unpaid at the specified time, with all arrearages of interest thereon, should, at the option of the complainant, become and be due and payable immediately thereafter.
    On the 20th of December, 1847, the interest was paid in full up to that date, and $84.19 of principal. And on the 5th of January, 1848, a payment of $65.80 of principal was made, and no other payment, either of principal or interest had been made.
    The hill claims, that by reason of default in not mating tbe first payment at the time specified in the condition of the bond, and of default in the non-payment of the yearly interest which had accrued, the whole of the principal sum mentioned in the condition of the bond, except the sums paid as aforesaid, were due and payable at the time of filing the bill, with, arrears of interest thereon.
    The bill states that the premises covered by the mortgage are situated under what are called the Palisades, on the west shore of the Hudson river, and that the only value thereof consists in the stone with which they are covered, and of which they are composed; that quarries have been opened on the said premises, and large quantities of stone have been taken therefrom and sold.
    That said Obadiah Older has, since the giving of the said mortgage, associated with himself in working said quarries, on terms the particulars of which arc unknown to the complainant, whereby they claim to have an interest in the .said premises, Joseph Dubois and John J. Yervalen, they knowing the existence of said mortgage; and that the said Obadiah, Joseph and John, with tlieir workmen and laborers, are employed in getting out, carrying away, and selling stone from the said quarries on the mortgaged premises; and that by reason thereof the security of the complainant has become lessened, and the complainant is in danger of losing his security altogether, if they, the defendants, continue to work the said quarries, by the samo becoming exhausted of all their stone. And that the mortgaged promises are a slender and scanty security for the principal and interest moneys due the complainant on his said bond and mortgage.
    The bill prays a decree of foreclosure, or for the sale of the mortgaged premises; and also prays an injunction restraining the defendants from committing any further waste or destruction upon the mortgaged premises, by digging, excavating and blasting stone and rock, or carrying, removing or selling the game from the said premises.
    On the reading and filing of this bill the injunction prayed was allowed.
    The defendant Older put in his several answer, in which he says, that no part of the first instalment of $ 1.00, which became due on the 24th of February, 1847, is due, and avers that tho whole of said instalment has been paid by him and received by the complainant; and he further says, that all the interest due on the said instalment, and also all the interest due on the residue of the principal money secured by the said bond and mortgage, until the 20th of December, 1848, was paid by him to and accepted by the complainant, and that no part thereof is now (at the time of putting in'his answer) due from him to the complainant ; and that he, this defendant, is in no default whatever in the payment of any principal or interest due according to the condition of the said bond and mortgage, the said complainant having, on the 20th of December, 1848, accepted the interest due on the whole of said sum to that date, and thereby made the yearly payment of interest to begin from that date.
    He admits that the only use and value of the premises is for quarrying stone.
    He denies that' he has in any way associated with him in the working of the said quarry the defendants Joseph Dubois and John Yervalen, or either of them; but says that the said Joseph and John work on said quarry in their own right,1'’claiming to be owners of the other individed half thereof, as this defendant is informed and believes by virtue of a deed from the complainant, in fee, for such other individed half.
    That this dhfendant, as owner of one undivided half of said quarry in fee, made partition thereof with the said John and Joseph, on or about May 28th, 1849, by virtue of which the north half thereof was released and assigned to the said John and Joseph in fee, and the south half thereof to this defendant, but that the said John and Joseph derive their title to the said lot from the complainant, and not from this defendant; and that this defendant does not work or quarry on the lot so assigned to them, nor do they work on the part so assigned to him.
    He says that the premises were conveyed to him by the complainant, by deed, dated February 22d, 1845, for the consideration of $250, by the description and appellation of a stone quarry lot, and that the complainant’s mortgage was given to secure the payment of the said consideration money. That said premises were sold to this defendant to be used as a quarry, and to be worked immediately by him, the same being the only use that could be made of the same; and that the payment of the said consideration money was on purpose and advisedly, by express agreement, made in small sums and at distant periods, so tliat this defendant, wbo is a laborer and a quarryman, and poor, and without any other means of payment, might earn, by his labor and industry in working said quarry, the means of paying said instalments as they should become due ; and that it was well understood and expressly agreed, at the time of said purchase and the giving of said mortgage, that defendant should forthwith begin and continue to work said quarry; and without such understanding he would not have bought, nor the complainant have sold to him, as he would have had no ability to pay.
    That, since the said purchase and the giving of tho said mortgage, he has expended a large sum of money in permanent improvements on said property; that he has erected thereon a dock for the landing of vessels, and certain fixtures called ways for the conveyance of the heavy stone from the steep banks"or palisades to the vessels at the docks; and that said machinery and docks have cosí; and are worth over §200, and are an improvement of the value of the premises to that amount.
    He admits that lie has quarried and carried away stone; but says that what he has taken out has not at all lessened the value of the quarry, tho work as yet done having made said quarry more accessible and valuable.
    That for tho last nine months he has not worked said quarry to any extent, having taken out only some seven boat loads during that time.
    That said quarry would not be half exhausted in fifteen years, by the taking away stone in the most rapid way it has ever been done by this defendant, or by all the means at present at his command to work tho same. ‘
    That the complaiuant, or any one for him, had never asked this defendant to pay the money secured by said mortgage, or the interest thereon, or any part thereof, nor requested him to desist from working in said quarry. And that the security of the complainant is not at ail endangered by tho manner in which this defendant had worked said quarry, and was continuing to work and designed to work it; but that this defendant has greatly added, to the value of said property by his improvements on the same.
    That, since the filing of complainant’s bill, this defendant, though he knew that no principal or interest was due, yet, to avoid costs of litigation, procured and tendered to the complainant the principal sum of $150, and all interest accrued thereon, remaining unpaid on said bond and mortgage, in good bank bills of banks in the city of New York, to which bills the complainant did not object; and that the complainant refused to receive the same unless this defendant also paid to him the costs incurred by him in filing his said bill and procuring the said injunction.
    The other two defendants put in their joint and several answer.
    They say they have not in any way been associated with said Obadiah Older in the working of said quarry; but that the complainant, by his deed, dated August 27th, 1847, conveyed to them in fee an equal undivided half part of the middle portion of said quarry tract, of four acres, for $ 150; the other undivided half of said tract being then held by the said Obadiah Older, by virtue of a prior conveyance from the complainant; and that said deed to these defendants contained the usual covenants of warranty, for quiet enjoyment-, further assurance, and against incumbrances; and that all the quarrying done by these defendants on said stone quarry tract was done on said portion so conveyed to them by the complainant, under and by virtue of said title so derived from the complainant, and not by virtue of any agreement with or association with said Obadiah Older. That these defendants, being together seized of one undivided moiety of said lands as tenants in common with said Obadiah Older, under titles derived from the complainant, did by releases, on the 28th of May, 1849, assign the metes and bounds of each half share, the north half being assigned to these defendants, and the south half to the said Obadiah Older, of the said portion of the Said quarry tract so conveyed to these defendants.
    They deny that they or either of them have quarried any stone from the half of said Obadiah Older in said premises. And deny that the value of said quarry lot has been impaired by any quarrying or talcing away stone by them or said Older; but say that all the quarrying as yet done on either part has only made the quarry and stone more accessible, and the quarry more valuable, besides and independent of permanent improvements and fixtures, to the value of more than $200, put on the said lot by the said Obadiah Older.
    On these answers a motion Yfas made to dissolve the .injunction.

      A. O. Zabriskie in support of the motion.
    He cited Drury on Inj. 136, 163; 2 Green’s Ch. 467; 1 Halsted’s Ch. Rep. 397.

      R. K. Paulison contra.
    He cited 1 Joc. Law Did. 357.
   The Chancellor.

Quarrying is the only use that can be made of the ground described in the hill; and the complainant sold to the defendant the undivided half of it as a quarry lot. The proper use of it as such cannot be considered waste. And the answers deny all those charges in the hill from which it might he inferred that the defendant was improperly impairing the value of the mortgaged premises and endangering the complainant’s security. The injunction will be dissolved.

Order accordingly.


text:
    Isaac B. Parker v. David Pratt and Wife, and others.
    At a Sheriff’s sale of land on execution, the crier, before the hammer was struck, received a sign which was intended as a bid, and which the crier understood as a bid, and would have received as a bid at any previous stage of the bidding, but which he refused to take as a bid on the ground that the half hour, expiring at a quarter past three o’clock, to which, by the instruction of the Sheriff, he had limited the time for bidding, had expired. The sale was set aside.
    On'the 24th September, 1849, Coolidge E. Pratt filed his petition, stating, that Isaac B. Parker filed his bill in Chancery against David Pratt, Job G. Olden and the petitioner; and that such proceedings were had therein, that, on the 5th July, 1849, a decree was obtained by which the sale of certain mortgaged premises, consisting of, &c., (described in the petition,) were ordered to be sold to raise and pay to the said Isaac B. Parker $1,645 65, with interest thereon from July-1849, with his costs ; to pay and satisfy Job G. Olden $868 11, balance of his judgment obtained by him against said David Pratt in the Common Pleas of Mercer ; and to pay and satisfy the petitioner $1,691 19, the amount of a judgment obtained by him against the said David Pratt in the Common Pleas of Mercer; on which decree a fi.Ja. issued for that purpose, directed to the Sheriff of Mercer, commanding him to make sale of said premises according to law.
    That the said Sheriff duly advertised the said premises for sale on Saturday, the 22d September, 1849, at the house of J. D. Y. Joline, in Princeton, between the hours of 12 and 5 in the afternoon.
    That the petitioner, with divers other persons, attended at the said time and place; and the said premises were exposed to sale at public vendue by said Sheriff. That several bids were made by the petitioner and others, till the bids had reached $8,925. That in the act of the petitioner’s bidding the additional sum of $50, the Sheriff, by his agent, David Hullfish, struck off the property to James Carnahan, who had bid a less sum than the petitioner so offered to bid; and this at the hour of quarter after, 8 o’clock.

      That, as the petitioner has been informed and believes, one or more persons were present who were willing and prepared to give, for said premises, more than the sum the petitioner thus offered to hid; and that they would so have bid if the Sheriff had not hurried the striking off, and had not taken them by surprise; and that, if the property had not been struck off at the time and in the manner aforesaid, there were persons ready and willing to bid an amount sufficient to have liquidated the amount of the said judgment of the petitioner.
    That the petitioner and the other persons present and prepared to hid more than the said $8,975 remonstrated with said Hull-fish and the said Sheriff, instantly upon the said striking off, and requested him to put up the property again and to receive the said bid of the petitioner, which the said Hullfish and the said Sheriff refused to do.
    That the petitioner is still willing to bid the said sum of |50 over and above the hid of the said J. Carnahan ; and he is informed and believes that one Theodore Draper is ready and willing to bid a sum over and above the bid of the petitioner. And so the petitioner says that he is injured and damnified by the unreasonable and unlawful haste with which the Sheriff, by his crier, struck said property off to said Carnahan.
    The petitioner prays that the Sheriff may be enjoined from executing a deed for said premises to said Carnahan, or to any person for whom said Carnahan may be acting, and, if the deed be already executed, from delivering the samo; and that said Carnahan may be injoined from receiving said deed ; and that the said sale may be set aside, and a new sale ordered.
    The petitioner also prays subpoena against Isaac B. Parker, David Pratt, Job G. Olden, John Hammell (the Sheriff,) and James Carnahan.
    On the reading of this petition, an order was made that the said Isaac B. Parker, (the complainant in the bill of foreclosure,) David Pratt, Job G. Olden and James Carnahan show cause, on the third Tuesday of October, 1849, at 10 A. M., at the State House in Trenton, why the biddings at the said sale should not be opened; and that, in the mean time, an injunction do issue . directed to the Sheriff, injoining him from executing a deed, to said Carnahan, or to any person for whom he may be acting ; and, if said deed be executed, from delivering it, until this Court shall make further order. And that a copy of the order and a copy of the petition be served upon the solicitor of the complainant|in the suit on which the property was struck off, and on the said James Carnahan.
    Depositions were taken, in the presence of James S. Green,, solicitor of the petitioner, and William Halstcd, of counsel with James Carnahan, to whom the property was struck off at the-Sheriff’s sale, in support of and in opposition to the motion to be made to open the biddings or set aside the sale.
    The depositions being read, a motion was made to set aside ■ the sale.

      J. S. Green and George Wood in support of the motion.
    They cited 1 Green’s Ch. 193, 6, 216; Saxton’s Ch. 344; 1 Sim. & Stuart, 381; 3 Tenn. Rep. 148; 3 East, 337; 1 Dow, 111; 3 Meriv. 483; 1 Bin. 61 ; 1 John. Ch. 502; 16 John. Rep. 288.

      W. Halsted contra.
    He cited 2 Green’s Ch. 463; 3 John. Ch. 290, 2; 2 Paige, 99, 339.
   The Chancellor.

I am satisfied from the testimony that the crier, before the hammer was struck, received a sign which was intended as a bid, and which the crier understood as a bid, and would have received as a bid at any previous stage of the bidding, but which he refused to receive as a bid, on the ground that the half hour, expiring at quarter past 3, to which, by the instruction of the Sheriff, he had limited the time for bidding, had expired.

This was a mistake in the crier. He was not at liberty to refuse a bid made at any time before the hammer was struck, though the half hour had expired. And if the Sheriff supposed he had a right to fix a point of time, prior to 5 o’clock, at which the hammer should fall and close the sale without respect to the state of the bidding at the time, he mistook the law.

As well might the Sheriff say, that the striking of the hammer of a clock at a given hour should close the biddings, and that ho whoso bid should happen to be made the instant before should be the purchaser, though a higher bid should be made the next instant.

A sale made by a crier under such instructions, if a bid made before the crier’s hand or hammer was struck be refused merely because the last second of the half hour had expired, is an illegal sale .It would bo exceedingly dangerous to allow to Sheriffs the right or power which the Sheriff in this case seems to have supposed he had, and which he, through his crier, exercised.

The bids, towards the close of the sale, were made with unusual rapidity. From the statement of Mr. Hagaman, a witness sworn on the part of the person to whom the property was struck off, there were 24 bids in less than 30 seconds ; his statement gives 24 bids in 20 seconds. But if there were 24 bids in a minute, or even in five minutes, continuing, as in this case, up to the very last moment of the half hour, it is extraordinary that the crier, or the Sheriff, should think he was justifiable in refusing the last hid, though made before the hammer was down, simply because the last moment of the half hour had expired.

I think there can be but little doubt, judging from what the property was bid to, and from the testimony before me, that the property will bring, at any fair Sheriff’s sale, enough to satisfy the incumbrances which are prior to the incumbrance of the petitioner. His claim is $1,691 19. The sum at which the property was struck off would have satisfied about $700 of his claim, after satisfying the prior incumbrances. The purchaser, or person to -whom the property was struck off, is the only person opposing the motion to sot aside the salo; neither the complainant in the execution nor the defendant in the execution opposes it.

Under these circumstances, I am relieved from any apprehension as to the consequences of setting aside this sale. It is, perhaps, as favorable a case as could well occur, in which to express the views of the Court as to the right which the Sheriff to whom the execution in this case issued supposed he possessed.

Sale set aside.