author: The Ciiancellok.

text:
    Isaac Rowe and Jacob Rowe v. John B. Matteson and David Hill, Administrators, with the Will of Betsey Hoagland, deceased, annexed, and Kitty Weart.
    Ob a bill of interpleader the first decree is that the defendants interplead, and the case then becomes a ease between the defendants as between a complainant and defendant.
    A. gave abondtoB. B. died leaving a will and appointing executors; on the death of B., C. took possession of the bond, claiming that B., in her lifetime, had by parol transferred it to her, the said C.; and notified the obligors not to pay the bond to the said executors, and that it was her property and in her possession, and that she should sue the obligors. The executors gave notice to the obligors not to pay the bond to C., and that they should sue if it was not paid to them; and afterwards commenced an action at law against the obligors, and declared upon the bond as a lost bond. The obligors filed a bill against the executors and C., praying that they should interplead, and praying an injunction restraining them from proceeding at law. The injunction was allowed.
    The answers admitted the facts on which the prayer for interpleader was founded, the answer of C. setting forth the grounds of her claim to the bond. lío decree was taken against the defendants to interplead; but the proofs on both sides, as between the defendants, were taken and the cause brought to hearing; and it being ready for a decision, both as between the defendants and as between them and the complainants, it was heard and a final decree made.
    The Court said that C. held the affirmative and was entitled to the opening and reply.
    In equity there may be such an agreement by parol as will pass the right to a chose in action; hut the proof of the agreement should be clear. The proof in this case was held insufficient.
    On the-1st of April 1843, Isaac Rowe, with Jacob Rowe as his surety, gave a bond of that date to Betsey Hoagland, since deceased, conditioned for the payment of $1500 in one year with interest.
    On the second day of July 1844, Betsey Hoagland died, leaving a -will, and administration with the said will annexed was granted to John B. Matteson and David Hill.
    The said Rowe bond is in the possession of Kitty Weart; and she, on the 11th of March 1845, by notice in writing served on the said Isaac and Jacob Rowe, forbade them from paying the said bond to the administrators of Betsey Hoagland, deceased, stating ip the said notice that the said bond was delivered and transferred to her the said,Kitty Weart for a valuable consideration, by the said Betsey Hoagland in her lifetime, and that it was the property of her the said Kitty and in her possession; and that it was her intention to institute legal proceedings against the said Rowes for the recovery from them of the amount due on the said bond.
    On the first of May 1845, the administrators &c. of Betsey Hoagland, deceased, by notice in writing served on the said Isaac and Jacob Rowe, forbade them from paying the said bond to the said Kitty Weart, and demanded that it be paid to them; stating in the said notice that it was the property of the said Betsey Hoagland, deceased, and belonged to her estate, and that unless it was paid to them they should institute legal proceedings against the Rowes for the recovery thereof.
    After the service of 'the last mentioned notice, the said administrators commenced an action of debt against the Rowes, on the bond, and declared upon it as a lost bond.
    The Rowes then filed a bill of interpleader stating that they have always been and now are ready to pay the said bond, and offering to pay it to such person as the Court shall direct, and praying that the said administrators &c. of Betsey Hoagland and the said Kitty Weart may interplead ; and that in the mean time they may be restrained from proceeding at law against them.
    The injunction was allowed.
    Answers were put in by Kitty Weart and the administrators &c. of Betsey Hoagland, deceased.
    The answer of Kitty Weart states that Betsey Hoagland was twice married, first to David Stout, and after his death to John Hoagland, who died in August 1842. That after Hoagland’s death the said Betsey, being advanced in years and infirm, and having no children and but one brother, who lived in the State of New-York, and being an aunt of her the said Kitty, she the said Kitty shortly after the death of the said Hoagland invited the said Betsey to make her house her home; and that in compliance with such invitation the said Betsey did, about two months after the death of the said Hoagland, remove from Readington, Hunterdon County, where she had resided, to the house of her the said Kitty in the township of Hopewell, bringing with her her goods, furniture and whatever articles of property she possessed. That at or about the time of such removal she informed the said Kitty that she had a claim against John S. Hoagland, the son of her late husband, of about §1700, which she believed and expected would some day he paid or secured to her. And that the said Betsey proposed to her that she should permit the said Betsey to live with her as one of her family, during her life, and that as a compensation therefor she said Kitty should have whatever the said Betsey might realize out of the said claim. That she the said Kitty, in consequence of her connexion with the family had before heard of the said claim, and was satisfied it was just and might he enforced; and that she might avail herself of the benefit of it. That she therefore acceded to the proposal which had been made to her, and agreed with the said Betsey that in consideration of the said claim and of the amount that might he collected thereon, she would take care of the said Betsey and provide for her during her life. That in pursuance of this agreement she did from that time forward continue to take care of and provide for the said Betsey, the said Betsey occupying a part of her house and living in her family.
    That in the spring of 1843 the said claim was adjusted between the said Betsey and the said John S. Hoagland. That for the interest which had accrued thereon, amounting to between §800 and §900, the said J. S. H. gave to the said Betsey his note ; and for the principal of said claim paid to the said Betsey §200 in cash, and for the residue of the principal, by an arrangement made between the said J. S. H. and the said Rowes, the said bond of the Rowes conditioned for the payment of §1500, was given to the said Betsey.
    That after the said Betsey had received the said bond, she expressly stated to this defendant in the presence of witnesses that this bond, with allthe moneys that might he due thereon, was to he her property, in pursuance of the agreement originally made with her, provided she continued to take care of her the said Betsey and provide for her during her life. That the same assurances were frequently made to this defendant by the said Betsey at subsequent periods; and the said bond was always spoken of and treated by the said Betsey as the property of this defendant and held in trust for her, subject only to the said conditions. That the said bond was never formally assigned to the said defendant by the said Betsey; and the reason she gave to this defendant for not doing so was that this defendant might fail to comply with the conditions of the said contract on her part, and thus put the said Betsey to the necessity of looking for a home and finding the means of support elsewhere. That the said Betsey continued to live with this defendant until her death July 2, 1844, being then 76 years old. This answer then states the care, trouble and expense of this defendant in taking care of the said Betsey. That having faithfully fulfilled &e., she considered herself fairly entitled to the said bond; and on the death of the said Betsey regarded it as her property, and accordingly retained it in her possession.
    The answer of the administrators &c. of Betsey Hoagland sets forth her will, which gives all her property to Sarah Jane Lewis, and other matters not important for the consideration of the question involved in the case.
    The testimony, so far as material, is as follows : —

      Adelia Weart, for Kitty Weart. She is a daughter of the said Kitty, and will be 20 in July. Mrs. H. was to live with mother her life time for the money she got of John S. Hoagland. Has heard Mrs. H. speak of a claim she had against J. S. H. Has heard her speak of the amount of it*, It was $1500. That is the claim she just said her mother was to have for keeping her during her life. The first conversation she recollects to have heard between her mother and Mrs. H. about this matter was about three months after Mrs. H. came there to live. She said, while all were there together, she wished us to remember what she said: she then asked mother if she would be willing to keep her as long as she lived for that money she would get of J. S. H. .Mother replied sho would. Gen. Manners, mother, witness and her younger sister were present. She heard this subject referred to frequently by mother and Mrs. H. Has heard Mrs. H. speak of a bond of $>1500 as having been received of Isaac and Jacob Rowe in satisfaction of that claim against J. S. H. This bond was frequently referred to and talked about by mother and Mrs. H. Mrs. H. always spoke of this bond as the money mother was to have in pursuance of that agreement.

      Jacob 8, Weart, for Kitty Weart. He is a son of Kitty Weart. On one occasion Mrs. H. sent for David Stout to seo about putting out some money she expected to receive from K. Brunswick and upon some small notes from persons in our neighborhood. He came, and aunt (Mrs. H.) said, when speaking of putting out the money, that the bond she intended for mother for keeping her as' long as she lived. She referred to the Rowe bond. Witness had heard of this bond before : saw it shortly after aunt got it. On another occasion he heard Mrs. II. say she wag going to got this money and was going to give it to mother for keeping her. Heard Mrs II. say the Rowes liad given notice that they were going to pay the bond the spring after it was given.

      James S. Manners, for Kitty Weart. He was present on the occasion related by Miss Weart: it was the latter part of Dec'. 1842 or first part of Jan. 1843. Mrs. H. said — now you arc all together I want to talk with you or consult with you. Sho said, I have been talking with Mrs. W. I think sho can afford to keep me as long as I live for that money I am to get of John S. Iloagland, if I got it. I rather expect to get it. She then asked witness what he thought of it — whether Mrs. Weart could afford it. Witness told her ho thought Mrs. W. could well afford to do it, or words to 'that effect. Mrs. W. replied — yes, aunt, you shall have a home as long as you live, as long as she, Mrs. W. had one. This was all of it. Witness supposed it was a contract unless altered. The bond in question was not then given.

      Jared S. Weart, for Kitty Weart. He is her son. Was present on the occasion referred to by his sister and Gen. Manners : it was two or three months after Mrs. H. came there. She came into the room and said she wished all to take notice what she said, and said she had been telling Kitty she thought she could afford to keep her as long as she lived for the money she was to get of John S. Hoagland. Mother told her she would'— she should never want a home as long as she had one. Remembers her asking Gen. Manners if he did not think she could afford to keep her for that, and he said he thought she could afford to keep her very well. Never heard Mrs. H. refer to this matter on any other occasion. Had heard this claim spoken of before in the family by Mrs. H. The Rowe bond was after-wards taken for this claim.

      Cross-examined. Mrs. H. made some presents to mother, but they were all delivered up after a suit was commenced for them.

      George Vlerebome for the administrators &c. of Betsey Hoagland. He paid Mrs. H. $200 and interest in May before her death, at the house of Kitty Weart. Kitty was present when he paid it. He paid it on the stand, and it was there when he left. He had borrowed $250 and given her his note for it. Sometime after that she requested him to draw a new note for the money to Jas. S. Lewis, which he did. After James5 death she requested him to draw a new note for it to herself, which he did. The said payment was made on this last note. The reason she gave for taking the note to Jas. S. Lewis was that the property was to go there after she had done with it. James T. Manners was at his house after the death of Mrs. H. We talked, among other things, about this bond in dispute. He said that Mrs. H. asked him if Mrs. W. would not be well paid if she got the money coming on this bond. Witness asked if he thought she meant the principal or the interest. He said he took it that she meant that the interest alone would pay her.

      Jemes S. Wylcoff, for the administrators. ' He called to se® Mrs. H. shortly before her last illness and saw her. His object was to get $1 Mrs. H. subscribed towards the erection of a Methodist Church. She said she expected money, saying from whom; that she wanted, it, and wanted to help Kitty a little too, for she had been very kind to her. Mrs. W. was in the room at the time.

      Mary Lewis, for the administrators, testifies to a'conversation with Mrs. H. in which Mrs. H. said, among other things, that Sarah Jane Lewis, daughter of James Lewis, deceased, would now get more of her property, for she was getting of John S. Hoagland what she expected was lost.

      John B. Matteson, for the administrators. He was at Mrs. W’s. to see Mrs. H. on business. Was there three times in April 1844. He had drawn her will, and had frequent conversations with her about the disposition of her property. At one time she asked him to take the papers and take care of them. They were looking over her papers. The bond was one, the Waldron note another, (and mentioning several others). She wished witness to take the papers and take care of them for the child named in her will. Witness told her they were safe there and she had better keep them herself. She said she believed they were safe, and kept them. Witness paid her at one time $200 in the spring after she moved to Mrs. W’s. He got it from John S. Hoaglancl. He paid Mrs. W’s son Jacob $30 for Mrs. H. shortly before her death. At one of his visits to Mrs. H. they made a calculation of the amount she would have to leave to the little girl named in her will, and we made it about $3000. When he paid her the $200 she said it would pay what she owed and leave her $100 to lend to a person she named who wanted it. Thinks she mentioned that she wanted to pay for her board and some little things she wanted to got, but he will not be certain.

      Cross-examined. She never told him how she was living with Mrs. W. Witness inquired of her about it: she waived the question and did not tell him. When he asked if she would have enough to live on she signified she would have enough of the $200 to pay her board and put out $100. To his question what she paid for board, she replied Mrs. W. and she knew about that, and smiled. He then asked her if she would now have enough to live upon, and she said yes, I shall now have enough to pay my board, and $100 to put out.

      In chief. This conversation had reference to the $200 he paid her and was at that time. At the time of taking the inventory he demanded the Rowe bond of Mrs. M. She replied that Mrs. H. had made a verbal disposition of it.

      Cross-examined. Mrs. W. did not say for what consideration Mrs. H. had disposed of it.

      James S. Manners again called for Kitty Weart. He remembers the conversation alluded to with Vlerebome. Witness’s object in going to Vlerebome’s was to collect testimony to support the- caveat against Mrs. H’s will. If the will had been set aside he would have been one of the heirs. Vlerebome said Mrs. W. claimed the bond under a contract to keep Mrs. H., as he understood.' Witness told V. he heard Mrs. W. claimed the bond, and it was very probable there had been a contract between them, and then assigned his reasons for thinking so ; that in the lat•ter part of Dec. or beginning of January, after Mrs. H. moved to Mrs. W’s., Mrs. H. said something like this: — now we are all together I want to talk with you, or something to that effect; said she, I have been telling Kitty that if I get that money of John S. Hoagland I think she can afford to keep me as long as I live for it. She then appealed to witness and said don’t you think she canl Witness replied he thought she could very well, or something to that effect. Either Vlerebome or Stout asked witness if he supposed she meant the principal or interest. His •remark was that he supposed either would have paid her. 'The bond in question ivas not then in existence. Witness referred to the money due Mrs. H. from J. S. H. When he said that either principal or interest would pay, he meant to get round the question. He did not mean to make evidence to break his own head. In the conversation between Mrs. H. and Mrs. W. nothing was said about interest or principal. It was that money of J. S. H. if she got it, and she was then encouraged to think she would get it.
    The counsel differed as to who was entitled to the opening and reply.
    The Court said it was on Kitty Weart to maintain the affirmative of her proposition, that the bond by parol agreement became hers.

      R. S. Field and W. Hoisted for Kitty Weart.
    They cited 1 Greenl. Evid. 514; 1. Mad. Ch. 443,4; 4 Taunt. Rep. 326; 1 Ves. 332; 1 Hill’s S. C. Rep. 187; 4 Tenn. Rep. 690; 1 Chit. Gen. Pr. 106; 19 John. Rep. 342; 16 Ib. 51; 15 Mass. 485; 2 Cond. Eng. Ch.410, 411; 3 Ib. 699; 1 Ves. Sen. 348; 2 Story’s Eq. Sec. 1055, 1057a, 1047; 11 Price 110; 3 Swanst. 393.

      S. R. Hamilton and P. D. Vroom for the administrators &c. of Betsey Hoagland.
    They cited 2 Kent’s Com. 438, 9; 2 John. Rep. 52; 9 Law. Lib. 15, 68, 126, 134; 1 Mad. Ch. 383; 1 Peter’s 380; 12 Ves. 37.
   The Ciiancellok.

On a bill of interpleader there should, regularly, be a decree that the defendants interplead, and the case then becomes a case between the defendants, as between a complainant and defendant. But as the proofs have been taken on both sides as between the befendants, and the causéis brought to hearing and is ready for a decision, both as between the defendants and as between them and the complainants, it may now bo heard and a final decree made.

On the merits of the caso I think it was a proper case for a bill of interpleader and for the injunction which was granted. In equity there may be such an agreement by parol as will pass the right to a chose in action. As between the defendants I have only to remark, that the proof of such agreement should be clear, and that I think the proof in this case insufficient.

Decree for the executors.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Sarah V. Schanck, an infant, by her next friend Wm. R. McMickle v. Hannah Schanck, Josiah Schanck and others.
    On a bill charging executors with having converted a part of the estate to their own use, and the insolvency of the executors; and that they are about to sell real estate in a manner forbidden by the will; and the apprehension of the complainant that they will convert the proceeds of such intended sale, also, to their own use; an injunction was granted restraining such sale.
    Insolvency is not a sufficient reason for taking the administration of an estate out of the hands of executors.
    Facts insufficient to authorize it to be done.
    Bill filed February 17, 1848, by Sarah V. Schank, an infant, by Wm. P. McMickle, her next friend; stating that on the 1st of April, 1843, Wm. Schanck made his will, giving to his wife Hannah his black woman Sally and all the furniture in his house, as long as she remained his widow ; but if she married, then the property to go back to his children ; giving to his son Josiah a one horse wagon and $300 over and above the shares of the other children; appointing his wife and his son Josiah executors; giving one share to his son William, $250 that he has already had to be deducted out of his share ; one share to his son Jesse; one share to his daughter Mary, to do with as she sees fit as long as she lives, but if she never marries again and has no more heirs, then $250 to be given to her son Stephen, and the rest to the children of the testator at her decease; $25 to his daughter Letitia Duncan for her share, she having already had $175 ; one share to his daughter Hannah Brown, her proportion not to be paid to her., only the interest, the balance to be secured by the executors' for her children; $150 to be deducted out of her share, she having had that already ; one share to his daughter Teresa; one share to his daughters Sarah and Jane, and $50 to each for their schooling; one share to his daughter Eliza, and $100 for her schooling; those three small legacies to come out of those children who have already had their bringing up ; directing all such personal estate as is not wanting, to he sold ; his real estate to he sold for good current money, hut not upon credit, and the amount thereof secured in such manner as is usual in like cases to insure the full and punctual payment thereof ; giving his executors power to sell his real and personal property as fully as he could do himself ; directing the net proceeds of his personal estate thereby directed to be sold, if any there be after his small debts are paid, to be divided between his wife and children, share and share alike, with the exception of Letitia Duncan; and the net proceeds of his real estate in like manner, as soon as it shall come into the hands of the executors. If any of the heirs should die before they arrive at age, their share or shares to bo divided in like manner.
    That the testator died October 1, 1843, leaving ten children, (naming them,) of whom the complainant is one; that the said Eliza, Jane and the complainant-are under twenty-one.
    That the said executors proved the will, and possessed themselves of the personal estate to a great amount, and entered into and took possession of the real estate, or into receipt of the rents and profits thereof, and have ever since continued and no w are in such possession and receipt.
    That the said executors have not paid any of the said legacies except that of ^25 to Letitia Duncan ; nor have they made any settlement of the estate in the Orphans’ Court; nor have they, as the complainant believes, paid the debts of the testator ; but have, ever since his death, used the property of the testator, both real and personal, as their own; and that the personal property of the testator, consisting of horses, cattle, wagons, carriages, farming utensils and household furniture and a library of books, have been greatly deteriorated and diminished in value, and that the executors have not sold any of the personal estate, but have kept and used the same. That the testator was possessed, at his death, of a large book-case and library of books, worth, in the opinion of complainant, between $300 and $400 ; and that the said hooks and book-case have recently been advertised for sale by the executors on the 1st of March; that the executors, instead of selling the cattle and stock, have killed and converted to their own use nearly all the cattle, hogs and sheep which belonged to the testator at his death; that two valuable horses owned by testator at his death were not sold by the executors, but have been used and worked by them until they are of little value ; that the executors, in violation of the will, have exchanged some of the real estate, situate in Cranberry, with one-Buckley, and received in exchange therefor a lot of land and the residue in money; that they have, as the complainant believes, entered into a contract to sell all the residue of the real estate, consisting of more than 100 acres, to one Andrew Duncan, for $4,100, and to receive his bond^' payable the 1st of April or May next, for $2,000, and to take his bond secured by a mortgage on the said real estate for the residue.
    That the said executors are wholly irresponsible, and if they receive the money for the land they are about to sell, it would be impossible for the complainant to recover out of their hands the amount she is entitled to.
    That Wm. A. Bowne and Hannah his wife, the said Hannah being a sister of complainant, and entitled to a share under said will, on the 8th of February instant, filed a bill in this court against said executors, praying an injunction against their selling the said real estate to the said ^ndrew Duncan, on a credit, or, if already sold, to restrain the sMd executors from receiving the money or any obligation or security therefor. That the injunction prayed was issued, and served on the said executors on the 11th of February instant; and that, on the next day, the said executors called on ,the said Bowne and wife, and agreed to give them security for their share of the estate, and also to give Duncan as security to the complainant for the payment of her share, if Bowne and his wife would agree to settle and withdraw the said injunction; that Bowne and wife, relying on the promise of the said executors, agreed to do so, and did withdraw the injunction; and the said executors thereupon gave security to the said Bowne and wife for their share; but the said executors, in violation of their said agreement, wholly neglected and refused to give security for the complainant’s share.
    That the said executors have wholly neglected to perform the trusts imposed upon them by the will, and that the sale they are now about to make to Duncan on a credit is a violation of the terms of the will, and a breach of trust; that if they should be permitted to receive the money from Duncan, they would, as the complainant believes, apply the same to their own use, and would not pay or secure to the complainant when she comes of age the share she is entitled to.
    That the will ought to be established, and the trusts thereof peformed under the decree of this court; and that a suitable person ought to be appointed to collect the outstanding personal estate, and sell the same and collect the proceeds thereof, and receive the rents of the real estate, and to sell the said real estate and receive the proceeds thereof, and appropriate, under .the direction of the court, according to the trusts in the will.
    The bill prays that an account may be taken of what is due the complainant, and that it may be paid or secured to her, and for an injunction restraining the executors from selling the said real estate on a credit to Duncan, or, if it has been already sold, from receiving the money or obligation or security from Duncan in payment therefor ; and that said Duncan may be injoined from giving his obligation to said executors, or from paying them any money thereon ; and that Duncan may be decreed to pay the purchase money for the said farm unto this court, or to a receiver to be appointed by the court; and that the sale to Duncan may be made under the direction of the court or of a receiver ; and that the executors may give security, under the direction of the court, for the due performance of their trusts under the will, or that a new trustee may be appointed to perform said trusts; and for further relief.
    An injunction was granted.
    The defendants in their answer say, that tlio inventory and appraisement of the personal estate amounted to §927 97, including the household futniture given to the defendant Hannah during her life or widowhood, which amounted to $223 18, including the wearing apparel appraised at $5 ; that the said inventory also included the black woman, appraised at $5, and the sum of $94 77, a book account against Wm, A. Bowne; that the balance of the said inventory is made up of personal property not bequeathed, including sundry book accounts amounting to $179 13 ; that after deducting from the amount of the said appraisement the personal chattels bequeathed to the said Hannah and the amount'of the said book account against Wm. A. Bowne, there remained in their hands assets to about $426 OT, consisting of some stock, farming utensils, hay, grain, &c., as by the said inventory will appear.
    They deny that they entered into and took possession of the real estate, or into the receipt of the rents and profits thereof, exept that the testator was in possession of a farm of about 118 acres, and also of a lot of about 19 acres.
    That he moved on the said farm the spring before his death. That at his death all his children were at home except Letitia, wife of Peter Duncan, Hannah, wife of Wm. A. Bowne, and William, who was married. The remaining seven children were at home and unmarried and remain unmarried. That about six months after the testator’s death Mary-went to N. York and has remained there ever since, but left her little boy with the family who remained there until last fall. That Jesse, one of the children, remained at home on the fax*m for about two years after his father’s death, and after that was home occasionally. That Sarah, the complainant, has been away from home for about three months last past, and that the remainder of the unmarried children have remained on the farm with these defendants, except T eressa, who has been absent at N. York about a year, but is now at home.
    They admit that they, with the other members of the family as above stated, have been and still are in the possession of the farm; and say that after the testator’s death it became necessary that some provision should be made for taking care of the family, and especially the younger children, four of whom were then under age. That for reasons after stated, it became impracticable to sell the real estate, or offer it for sale the fall and winter after testator’s death; and it was considered best for all interested that the family of children at home should be kept together at the farm, at all events until the eusuing year, when the property might be sold. Accordingly the defendant Josiah, being the oldest son, undertook the charge and management of the farm, so as to provide for the wants of the family, and assisted by Jesse, a younger brother, worked the farm and did the best he could, by and with the advice of his co-executor, the defendant Hannah, for the general benefit of the family; the defendant Josiah being anxious that his younger brother and sister, who had hut little property, should he brought up respeetably as the other children had been, as far as he might be able to effect such result.
    The defendants say that the reason why the farm could not be offered for sale during the fall and winter after the testator’s death was that soon after his death Wm. A. Bowne, who had married the daughter Hannah, filed a caveat against proving the will, on the ground, as the defendants are informed, that the testator was not competent to make a will; and these, defendants were thereby delayed in the probate of the will until March 29th, 1844, when it was too late to offer the farm for sale, and it was concluded best for the family to remain as before stated.
    They say that in the fall of 1844, and within a year after the probate of the will, they advertised the farm for sale, and on or about the second of Jany. 1845 set it up at public auction. That a number of persons attended, and every effort was made by the defendants to sell the property, but the highest bid ob» tained was $80 20 an acre ; and this being considered entirely too low, the farm was bid in by Jesse for the common benefit of all interested; and it was then agreed by these defendants and all the children who were at home, and with the approbation and consent of those who were away from home, as these defendants believe, that these defendants should remain upon the property and use it and appropriate the proceeds thereof to the benefit of the family, and the education and maintenance of the younger children. That from that period the family have been taken care of and provided for, comfortably and respectably, and the house has been the home of all the children whenever they chose to come and make it such.
    The defendant Josiah says, that in remaining on the farm and devoting his time and labor to cultivating it, and in taking care of the family, he derived no pecuniary benefit; nor was it any personal advantage to him. That the main object was to take care of the family, and especially those who were too young to take care of themselves. That he stipulated for no salary or compensation for Ms time or labor, and has not received as much from the said farm as the other members of the family who were living there.
    That they did not make sale of the personal estate, but retained the same for the purposes of the farm, and have used it prudently and carefully; and they deny that they have used the said real and personal estate as their own, and taken to their own use the rents and profits of the real estate otherwise than as before stated.
    They admit they have not settled their accounts in the Orphans’ Court; and say it was impracticable to do so, the farm remaining unsold; and deny that they have not paid any debts; on the contrary, Josiah alleges that he has paid debts, including the expenses of the administration, to about $800.
    That other debts remaining unpaid, two of them' amounting together to $600, being mortgages on the land, and the mortgag ees being desirous of receiving their money, and the children being all grown up, and the said Josiah being desirous of engaging in some other business, and having an opportunity of selling the farm for a fair value, the defendants, early in February last, •(1848,) entered into an agreement with Andrew Duncan to sell the farm to him for $4,TOO; and in pursuance of said agreement, they, by deed of bargain and sale, dated Feb. 8th, 1848, conveyed the same to the said Duncan, who then and there gave to these defendants a note for $2000 to be paid on the delivery of the property to him this spring, and a bond and mortgage on the said property for $2,TOO, payable one half in one year, and the residue in two years, with interest from the first of April of-thpresent year.
    They say they have not sold said property on a credit, nor in any way violated the will. That their sole object has been to dispose of the property safely, to the best advantage and on the best terms that could be procured. That they expected out of the first payment to discharge the remaining debts of the estate, and will be unable to do so if the injunction shall be permitted to continue.
    They say that for the purpose of disposing of the personal property they did, early in Feb. last, advertise the same to be sold on the 1st of March then next, and did accordingly sell the same at public vendue. And although it may be that some articles had become less valuable by ordinary use, yet they deny that the personal property as a whole had become greatly deteriorated and diminished in value. On the contrary, they say that the amount of sales of the personal property was greater than the appraisement of the same property or its equivalent. Some of the cattle and other stock had been killed and used to the use of the family; but others had been raised and substituted, and were sold as the property of the estate.
    They admit there were two horses, a brown horse and a bay mare; but deny that they were or could be considered valuable. The horse was appraised at $35, and the mare, with a colt, at $85. At the sale the horse sold for $26, and the mare for $20 25, and the colt which the defendants had raised, for $45, and another colt also raised by him, for $8 75.
    They admit there was a book-case and books of some value, which were appraised at $35, but deny that they have become greatly deteriorated, and deny that the said book-case and books have been or were advertised for sale on the 1st of March, or at any other time; but say they had no thought whatever of selling or offering them for sale, nor is it at all mentioned in the notice of sale ; and that the said case and books have been carefully used and properly taken care of.
    They say they have sold a part of the real estate and received therefor a sum of money and the residue in a lot of land; but they do not admit that the said sale wras in direct violation of the terms of the will. That the testator, at his death, besides the farm owned a lot of 19 acres near Cranberry. That there were some debts and claims not required to be paid, and among others the expenses they had been subjected to in resisting the said attempt to set aside the will; and having no means in hand to satisfy the same they sold the said lot advantageously, as they then believed and still believe, to ono Joshua Brickly, receiving therefor $500 in cash and a small building lot in Cranberry which was held for the benefit of all interested in the estate. That they intended and expected to sell the building lot this spring, so that they might be able to settle the estate at an early day, but have been deterred from selling or attempting to sell it by the proceedings instituted in this court. They submit that if it should be considered that they were not authorized to sell the said lot as they did, they nevertheless acted in good faith and for the benefit of all interested, and are not obnoxious to the charge of violating the will.
    They admit that they have very little property except what they may derive under the will; but say they have as much now as when they .were appointed executors. They suppose they were appointed, not because of their wealth, but because the testator had confidence in their integrity; and as they have endeavored faithfully to discharge their duty, and have not in any way wasted the estate or injured the rights of those claiming under the will, and especially of the complainant, they submit that the charge made in the bill that if they should receive the money for the real estate (it would be impossible for the complainant to recover out of their hands the amount she is entitled to is entirely gratuitous and unmerited, and ought not to have been made.
    They admit that Bowne and wife, on the 8th of Feb. last, filed a bill against them praying an injunction to restrain them from selling the said real estate to Duncan on a credit, or if already sold, from receiving the money or any obligation or security therefor; and that an injunction was issued ; and that they afterwards made a settlement with Bowne for his wife and children’s share; but they deny that it was a condition of the said settlement, or that it was agreed at the time by these defendants or either of them and the said Bowne or any one else, that they would give Duncan or any other person as security to the complainant in this suit for the payment of her share, and that, relying on the said promise, the said Bowne and wife agreed to settle the said suit, and withdraw the said injunction; but they say that Bowne, being an attorney at law, as they understand and believe, filed the said bill against them; that not wishing to be involved in any litigation, they agreed to settle with Bowne. That by the will the interest only of his wife’s share was to be paid to her, and the share itself was to be secured by these defendants for her children; that although no settlement of the estate had been made, and some of the property remained unsold, an estimate was made by Bowne of his wife’s share, and he made the amount $554, on which there was then due for interest $44; that Bowne being entitled to this interest, as the defendants supposed, they gave him a note for it, which remains unpaid, and which they expect to pay when it becomes duo and payable. Bowne then pressed to have the principal paid to him, or that these defendants should give him a note for the amount which he said ho was entitled by law to receive and hold. That the defendants not believing that Bowne was so entitled refused to settle on any such terms. But for the sake of peace it was finally agreed between them and Bowne that they should give him their note with security for $554 ; and that on his receiving the money he should give ample security that it should bo paid to the children according to the will or to indemnify these defendants. That accordingly such note was given with A. Duncan as security, and delivered to Bowne ; but whether it was made payable to him as guardian, or how otherwise, they do not recollect. Tho defendant Hannah says, that at the time of this settlement Bowne requested of her that the executors would give him a memorandum shewing that they would pay the complainant in this suit the share that should appear to he coming to her on a settlement of the estate in the Orphans’ Court; to which this defendant assented, and thereupon Bowne drew up a paper which this defendant signed; that the defendant Josiah was not present at the time. The defendants say that soon afterwards Bowne requested Josiah and tho other executor to sign the said paper and give Duncan as security for the payment» That thereupon tho said Josiah said he knew nothing of any such agreement, and declared he would not sign it. They aver that such paper or alleged promise had nothing to do with the settlement then made with Bowne, and that Bowne did not make a settlement with them for the share of his wife and children on the condition or with the agreement that they would at the same time give such writing and security, or any other, for the payment of the share of the complainant in this suit; but on the contrary, ho voluntarily and without any consideration whatever, endorsed on the injunction he had obtained, or a copy thereof, the following: — “ I hereby agree that the injunction -of which the within is a copy, may be dissolved, and hereby relinquish all opposition to the selling of the farm by the within executors, and consent to the payment to them of the purchase-money by Andrew Duncan.
    . Dated Feb. 12, 1848. W. A. BOWNE.”
    The defendant Josiah, answering for himself, says that it was not till after the notes had been given by these defendants to Bowne and Bowne had receipted the injunction, that any thing was said to them by Bowne about giving or signing any paper or giving security for the share of Sarah, the complainant; and that on his mentioning the same he, Josiah, was surprised, and utterly refused to do it. And the defendant Hannah, answering for herself, says that when she signed the said paper there was no security named or mentioned in it; but she observed a blank in it which Bowne afterwards filled up by inserting the name of Andrew Duncan without her consent.
    The defendants say that when Bowne and wife filed their said bill Sarah was at the residence of the said Bowne in Hightstown, where she had been for some little time, and they verily believe she has remained there since by the advice of Bowne, and that the bill filed in the name of the’said Sarah has been filed by the instigation of Bowne, andnotof the said Sarah. That Wm. McMickle, who appears in the said bill as the next friend of the said Sarah, is a single man, of no visible property, and comparatively a stranger to these defendants, and who can have but little if any knowledge of the affairs of the said estate. And the defendants believe that this suit has been instituted for the purpose of inducing them to make some settlement with Bowne or McMickle of the share of the said Sarah, and to pay or secure to them or one of them, or to her, more than she can be justly entitled to under the will.
    The defendant Hannah says that with the view of effecting such purpose, as she believes, shortly after this suit was instituted and the injunction served, Bowne and McMickle came to the house of these defendants, and while there Bowne requested her to sign a paper which McMickle had, whereby she would agree to pay $504 as and for Sarah’s share, which she refused to do ; not being willing that tbe property of her daughter should be committed to their keeping, and believing that the said sum was more than she was entitled to.
    The defendants say they are perfectly willing that an account should be taken of all the assets that have come to their hands, and for which they may be in any way responsible, and to pay the balance, if any, as the court shall direct; but until the money shall be received from Duncan for the farm, and until the said building lot in Cranberry shall be sold, it would be impracticable for the defendants to make a final settlement; but they are willing and desirous that the estate shall be settled under the direction of this court as soon as practicable.
    Duncan, in his answmr, says that early in February last he contracted with the said executors to buy the said farm, for $4,700'; $2,000 to bo paid this spring, and, as he believes, on the 1st of May, for which he gave his note, dated February 8, 1848, which he is now prepared to pay on the delivery of the property; the remaining $2,700 secured by bond and mortgage on the property, of the same date, half payable in one year and half in two years, with interest on the whole from April 1,1848; and the said executors thereupon conveyed to him the said property. He avers that he gave a fair and valuable consideration and price for the property, and expects soon to take possession of it, and is prepared to pay the amount of the said note whenever he is permitted to do so by this court, and to pay the same as the court may direct.
    On this answer, a motion was made to dissolve the injunction.
    P. D. Vroom for the motion.

      W. Halsted contra.
   The Chancellor.

1 do not think that any such misconduct in the executors, or ground for apprehending waste or loss appears in this case, as calls upon the court to take the administration of the estate out of their hands. Insolvency alone would not be sufficient.

Injunction dissolved,


text:
    James M. Blackwell, Edward A. Whittemore and William Cahart v. Andrew Rankin, George H. Lee and others.
    The quasi lieu of the creditors of a partnership on its property, as against creditors of individual members of the partnership, gives equity jurisdiction for the purpose of protecting the members of the partnership.
    The affidavit required by the statute to be made by the plaintiff, on his taking a judgment by confession on bond and warrant of attorney, must show a debt existing at the time of the entry of the judgment.
    A. and B., partners in trade, confessed a judgment to C. The affidavit of C. stated the consideration to be, in part, notes of A. and B. endorsed by C. and not due; in part, notes of other persons given to A. and B. and endorsed by C. and not due; and in part, notes lent by C. to A. and B. for their accommodation and not due. Execution was issued on the judgment and levied on all the property of the partnership. On bill filed by D., a creditor without judgment of the partnership of A. and B„ C. was restrained by injunction from proceeding to a sale under his execution. And on motion, without answer, to dissolve the injunction, the motion was denied.
    On the 8th of April 1848, Andrew Rankin and George H. Lee, partners in trade under the name of Rankin and Lee, gave a hond and a warrant of attorney to confess judgment thereon, to Wm. Lee, in the penal sum of $20,000, conditioned for the payment of $10,668 ; and judgment was confessed thereon on the said 8th of April 1848. The affidavit required by the statute, made by Wm. Lee, stated the true consideration of the bond to be to secure the said Wm. Lee for certain promissory notes which he had endorsed for Rankin and Lee, as follows :
    Note given by said Wm. Lee, due Apr. 24, 1848, for $175 “ of said Wm. Lee, “ May 22, 1848, “ 390
    “ “ “ “ June 7, 1848, “ 300
    “ “ “ “ June 20,1848, “ 490
    “ “ “ “ June 21,1848, “ 480
    “ “ “ “ Aug. 22,1848, “ 1100
    “ “ ' “ “ Aug. 10,1848, “ 150
    On bond and mortgage executed by the said Wm. Lee to Sami. Cook, for $1672, given upon land of the said Wm. Lee, dated May 29th, 1845, payable in one year, with interest, which money was then and there lent by Sami. Cook to Rankin and Lee, interest on said bond being paid to Nov. 1849, 1675
    One note of Alfred Mead endorsed by said Wm. Lee, due May 5th, 1848, 499
    One note of Alfred Mead ££ ££ ££ due May 5th, 1848, 509
    One note of Alfred Mead “ ££ ££ due May 25th, 1848, 339 21
    One note of Alfred Mead ££ ££ ££ due July 28th, 1848, 125
    One note of Rankin and Lee “ a a due April 20th, 1848, 15Ó
    One note of Rankin and Lee i£ • ££ ££ . due May 30th, 1848, 600
    One note of Rankin and Lee ££ ££ ££ due May 11th, 1848, 100
    One note of Rankin and Lee ££' ££ due May 27th, 1848, 550
    One note of Rankin and Lee ££ ££ ££ due May 26th, 1848, 100
    One note of Rankin and Leo “ ££ a due June 30th, 1848, 600
    One note of Rankin and Lee ££ ££ a due Juno 27th, 1848, 500-
    One note of Rankin and Lee ££ ££ ££ due July 30th, 1848, 100
    One note of Rankin and Lee £i ££ ££ due July 1st, 1348, 300
    One note of Rankin and Lee ££ ££ ££ due July 30th, 1848, 475
    One joint note of Andrew Rankin, Wm. Lee, Alfred and George H. Lee, to Sami. Cook, for $650, with interest, dated Dec. 9th, 1845, interest paid to Dec. 9th, 1847, 650
    One note of Andrew Rankin endorsed by Wm. Lee, due July 28th, 1848, 296 69

      “ -which notes, bond and mortgage hath been assumed

      “ by Wm. Lee, who hath agreed with Rankin and
    “ Lee to pay the same and save them harmless.”
    On the 10th of April, 1848, Rankin and Lee confessed judg-. ment in favor of Wm. Rankin, for $2116,75. The affidavit states the consideration to be four notes loaned by Wm. Rankin to Rankin and Lee ; one for $500, due that day ; one for $521-60, due June 10th, 1848 ; one for $470 15, due June 16, 1848 ; and one for $56845, due July 7th, 1848.
    On the same 10th of April, 1848,|Rankin and Lee confessed another judgment in favor of Wm. Rankin, the consideration of which is stated in the affidavit to be an endorsement by Wm. •Rankin of Rankin and Lee’s note for their accommodation, due July 8th, 1848, for $566 04.
    On the same day, April 10th, 1848, Rankin and Lee confessed a judgment to Jonas Wood for $832 95. The consideration stated in the affidavit is his said Wood’s two notes to Rankin and Lee, for their accommodation; one for $373 21, due May 18th, 1848, given for the accommodation of Rankin and Lee; one given to Rankin and Lee for their accommodation, for $496 23, due June 20th, 1848.
    On the same 10th of April, 1848, Rankin and Lee confessed a judgment to Elias Plum, for $795 51. The consideration stated in the affidavit is money lent.
    On the same day Andrew Rankin confessed a judgment to Elias Plum for $298 28. The consideration stated in the affidavit is Phem’s acceptance of A. Rankin’s draft for $298 28, due May 13th, 1848.
    On the same day Rankin and Lee confessed another judgment to Wm. Lee for $5000. The consideration stated in the affidavit is to indemnify Lee against loss and damage by reason of his having endorsed a large amount of business paper, notes and bills of exchange of the said Andrew Rankin and George H. Lee, to enable them to get their bills and notes discounted and passed away, amounting in all to $17,898 44, whereof $8253 13 is past due and has not been paid.
    On the same day Rankin and Lee confessed another judgment to Wm. Lee for $550 ; the consideration for which, stated in the affidavit, is money lent.
    On the same day Rankin and Lee confessed a judgment to Caroline Hayden for $206; the consideration for which, stated in the affidavit, is money lent.
    On the same day George H. Lee confessed a judgment to Caroline Hayden for $143 25; the consideration for which, stated in the affidavit is money lent, loaned, &c.
    Executions were issued on all these judgments, and the sheriff, by virtue thereof, levied on all the property of the said firm of Rankin and Lee, and advertised the same for sale.
    In this state of things, James M. Blackwell, Edward A. Whittemore and William Cahart, partners in trade, creditors of the firm of Rankin and Lee, who had commenced suit, but had not obtained judgment for their demand, exhibited their bill against Andrew Rankin, George H. Lee, William Lee, William Rankin, Jonas Wood, Elias Plum and Caroline Hayden, charging combination and confederacy to defraud the complainants and others, the bona fide creditors of the said firm of Rankin and Lee, and to take into their hands the whole of the property of the said firm; and that the said judgments were coufessed fraudulently, and praying that they may be decreed to be void &c.; and praying an injunction restraining the sale.
    The injunction prayed was allowed.
    A motion was made, without answer, to dissolve the injunction.

      J. P. Bradley and Jl. Whitehead in support of the motion;
    they cited 2 John Ch. 144; 20 John’s Rep, 296; 1 Harr, Rep. 138, 268, 364; 16 John Rep. 149; 4 Halst. Rep. 93; 1 Green’s Ch. 258; 5 Halst. Rep. 348; 3 Green’s Rep. 373.

      L. C. Grover and C. Parker contra.
    They cited Rev. Stat. 946, sec. 5; 2 Halst. Rep. 168; 1 South. Rep. 351; 1 Halst. Rep. 93.
   The Chancellor.

The Statute, Rev. Stat. 946, sec. 5, enacts, that no judgment shall be entered on a warrant of attorney to confess such judgment, unless the plaintiff or his attorney shall produce, at the time of confessing such judgment, an affidavit of the plaintiff, his attorney or agent of the true consideration of the instrument of writing or demand for which the said judgment shall be confessed; which affidavit shall set forth, that the debt or demand for which the judgment shall be confessed is justly and honestly due and owing to the person or persons to whom the judgment is confessed, and that the said judgment is not confessed to answer any fraudulent intent or purpose, or to protect the property of the defendant from his other creditors.

A number of cases have been before our courts in which the language and effect of this statute have been considered.

In the case of Scudder v. Scudder and Coryell, 5 Halst. Rep. 340, one objection to' the affidavit was that it was made a day before the bond on which the judgment was confessed became payable, and was therefore prematurely made ; the statute requiring the affidavit to set forth that the debt for which the judgment is confessed is justly due and owing. The objection was not that the debt for which the bond and warrant t'o confess judgment were given was not due, but that the affidavit to authorize judgment to be entered for the debt so due, was made the day before the bond on which judgment was to be confessed for the debt so due was payable. The bond was payable one day after date, and, by oversight, the affidavit of the preexisting debt, and of its being due, was made the same day the bond and warrant of attorney to confess judgment thereon were given. In reference to this objection, Ch. J. Ewing said, the design of the statute was simply to prevent the entering up of judgments where no indebtedness existed really and in good faith, and to defeat fraudulent purposes; and, that the making the affidayit one day before the bond became payable tends to no such evil as to vitiate the judgment. He said, further, that the word due ” sometimes means debiium in presentí solvenium in futuro, and sometimes that the day of payment has passed; and that it appears to have been used in the former sense, as it is connected with a word of like signification, the words being{{ due and owing.” He also said, in reference to this objection, that .the statute provided that no such judgment should be reversed for defect of form in the entry thereof. Just. Ford said it was a defect of form only of which third persons could not take advantage ; but that courts allowed judgments to be impeached for fraud or covin, on the application of creditors, and have exercised a^gjiftaiMtgXjffiwer, immemori-' ally, to inquire into them to set them aside; for fraud and covin wWvRiate every kind of act; and fraudulent judgments are maql|^'\^o§(,.|^MAst'. creditors as fraudulent conveyances. The Inotion to set ^asMe the judgment was denied; but leave was givok Mgned issue to try the question of fraud. The ap^ea.tignfajkgtfaside the judgment was by judgment creditors.

The case of Warwich against Matlack, in the Supreme Court, 2 Halst. Rep. 165, was this : a bond was given, dated Jany. 22, 1821, in the penal sum of $2,800, conditioned for the payment of $1,400 in three years, with interest annually, with a warrant of attorney to confess judgment thereon. In May 1823, judgment was entered, hy virtue of the warrant, for the penalty, the annual interest not being paid. The affidavit stated that the true consideration of the bond was for land sold, and that the debt was justly due and owing. A motion was made to set aside the judgment, on the ground that the debt was not due and owing. It was answered, that on the non-payment of the interest the penalty of the bond was forfeited; that the debt then became due, and judgment might ho entered for the penalty; that though judgment had been entered for the penalty, execution had been issued for the interest only. The judgment was sustained. The application to set aside the judgment was made by a purchaser of the land from the obligor, which would he hound hy the judgment.

In Reed against Bainbridge, in the Supreme Court, 1 South. Rep. 351, Bainbridge, on tbe 12th of Feb, 1814, gave to Reed a bond and a warrant of attorney to confess judgment thereon. On the 14th of Feb., 1814, Reed, by endorsement under seal, assigned the bond to Thorn. On the 18th of Feb., 1814, judgment was entered on the bond, by virtue of the warrant of attorney, in the name of Reed. In April, 1814, one Schenck agreed with Bainbridge to buy his farm, and took possession of It; and on the 9th of May, 1814,, received a deed for it and paid the consideration money. A motion was made on behalf of Schenck to set aside the judgment and execution, on two grounds : first, because the judgment was irregularly entered : second, that there was fraud in the bond and warrant and judgment. The judgment was set aside.

In Milnor v. Milnor, 4 Halst. Rep. 93, judgment on bond and warrant had been entered Feb. 16th, 1827, against John Milnor, who had died insolvent three days before. The judgment was set aside on motion in behalf of McNeely, a creditor of J. Milnor, who had not obtained judgment. The Court said that McNeely was admitted, in the state of the case, to be a creditor; and that he was directly affected by the judgment.

In Latham v. Lawrence, 6 Halst. 322, decided in 1830, the judgment was entered on a-bond and warrant, dated July 7th, 1827. The affidavit stated that the true consideration of the bond was a note, dated October 18th, 1823, for $120, payable to Latham six. months after date, with interest; another note, dated April 2nd, 1825, for $90, payable to Latham four months after date, with interest; both of which notes were drawn by the said Lawrence; and also for a book account against the said Lawrence, amounting to $128 54; and that the debt for which the judgment is confessed is justly due and owing ; and that the judgment is not confessed to answer any fraudulent purpose, or to protect the property of the defendant from his creditors.

On motion of judgment creditors of Lawrence, the judgment was set aside for defective affidavit.-

Ch. Just. Ewing said the affidavit kept the word of promise to the ear, but broke it to the hope.

In Hoyt v. Hoyt, 1 Harr. Rep. 139, decided in 1837, it appeared that a part of the consideration was the piaintiff ’s promissory note advanced to the defendant, to be used, and which was actually appropriated in payment for certain chattels by him bought, and agreed beforehand to be paid for, in part, in this way. The consideration stated in the affidavit was money lent. Justice Ryerson said the question was, whether the advance of a promissory note payable at a future day was equivalent to art advance of cash, and to be treated as such in law proceedings. He said that if an advance of a note may be treated as an advance of cash, the money may be considered as justly due, if by the contract of parties it was made duo and payable on demand. That he saw no objection to giving a judgment to a party in payment of his negotiable paper not yet arrived at maturity. This remarle must bo taken as being made with reference to the facts of the case, and as meaning if it be shown that the paper was given to a third person for something received by the defendant in the judgment. It cannot mean that A may borrow B’s note and keep it himself, and confess a judgment to B for the amount of it. If that could bo done the Statute might as well be repealed.

He said he was not entirely satisfied with the result to which he had arrived.

Ch. J. Hornblower overcomes the difficulty in his own mind by saying that it was admitted that the understanding and agreement of all the parties was that the plaintiff was to pay, as he has paid, the debt for which the note was given. But the validity of the judgment, or the sufficiency of the affidavit at the time the judgment was entered, cannot depend upon whether the plaintiff afterwards pays the note or not. He may not pay it, or he may pay it out of the very money which he raises by the sale, under the judgment, of the defendant’s property ; in which case the money was never at any time due him. Suppose he becomes insolvent and fails to pay his note, shall the defendant in judgment pay it twice ? The Legislature never contemplated leaving the door' open to such hazards, and to the frauds which would result from the latitude some seem disposed to take with the language of the statute.

This case decides, and with great hesitation, that if A gives his note to B, and B endorses it to another and gets goods for it, he may confess a judgment to A for the amount of it before it becomes due and payable by A.

But the case of a judgment confessed by A to B, to-day,, because B has endorsed A’s note, payable three or six months hence, is a very different case.

It is an abuse of language to say that because I endorse your note to-day, payable three months hence, to be used by you, you are indebted to me to-day for the amount of it; and that it is a debt due and owing to me to-day.

No such idea was ever entertained by the '’courts ; it would encourage all manner of device to cheat the plain design of the statute.

This review of the decisions in our Supreme Court on this statute shows that the affidavit must make out a debt existing at the time of the confession of the judgment; and that if the facts stated in the affidavit show that there was no existing debt, the allegation in the affidavit that the debt is due and owing amounts to nothing. And indeed the object of the statute could not be attained if the plaintiff’s opinion that the facts sworn to make him a creditor in presentí was suffered to sustain the judgment.

Next, on whose application may a judgment confessed and entered without the proper affidavit be set aside 1

One of the judgments in this case is confessed by Andrew Rankin, one of the firm, for his individual debt, to Elias Plum. Another is confessed by George-H. Lee, the other partner, for his individual debt, to Caroline Hayden. And executions on these debts have been levied on the property of the firm.

In Moody against A. and H. Payne, 2 John. Chan. Rep. 688, 9, a bill was filed for an account of the partnership concern, after a dissolution, stating a number of existing debts against the partnership, and its insolvency; and to enjoin a sale at law under a judgment confessed by one of the partners for his separate debt,, due the other partners, and under which judgment partnership property had been seized. The injunction was allowed. The answer denied the insolvency, and some of the partnership debts, and admitted others. On motion to dissolve Chancellor Kent dissolved the injunction. He says, that the execution at law only takes the interest of the partner who is sued, subject to the partnership debts ; that there are difficulties in selling'sueh an uncertain interest before it is ascertained, by taking the accounts in this court, what is the interest to be sold. That Lord Eldon felt the weight of that difficulty, &c.; and that he did not know that this court had ever undertaken to stop an execution at law in such a case, &c. That the cases referred to by Maddock do not warrant the conclusion that chancery stops such executions' by injunction. That courts of law are in the constant practice of awarding executions in such cases ; and that chancery does not, ordinarily, and upon such general grounds, enjoin the sale at law.

Justice Story, in 1 Story’s Eq. Sec. 618, refers to this decision, and dissents from it. He says that the reasons given by Chancellor Kent do not seem a sufficient ground on which such an injunction is to be denied. That if the debtor partner, on a final adjustment of the accounts, will have no interest in the partnership funds, and the other partners have a lien upon the funds, not only for the debts of the partnership, but for the balance ultimately due to them, a sale may most materially affect their rights; for it may be extremely difficult to follow the property into the hands of the various vendees; and their lien may perhaps be displaced, or other equities arise by intermediate bona fide sales of the property by the vendees, to other purchasers without notice; and the partners may have to sustain all the chances of any supervening insolvencies of the immediate vendees. That, to prevent multiplicity of suits, and unpardonable mischiefs, and to insure an unquestionable lien (the lien he has before spoken of for the debts of the partnership), it would seem perfectly proper, in a case of this kind, to restrain the sale. And this, he says, seems, notwithstanding the doubts suggested by Chancellor Kent, to be the true result of the English decisions on the subject, which do not distinguish between the case of an assignee of a partner and that of an executor or administrator of a partner or of a sheriff, (meaning under a judgment against a partner; and the vendee at the sheriff’s sale would be nothing more than an assignee of the partner,) or of an assignee in bankruptcy.

These views are very persuasive; and are well calculated to remove doubts, even in the case presented in Moody v. Payne.

But in that case the insolvency of the partnership was denied by the answer. In this case it must be taken as admitted 5 no answer having been put in. In this case, then, it is not a peradventure, but it is certain that neither has any interest in the partnership funds. And yet each partner has confessed a judgment for his separate debt; and executions thereon have been levied on the partnership property. I cannot doubt that in such a case Chancellor Kent would have retained the injunction.

In 2 Story’s Eq. Sec. 1253, it is said, that the partnership property is deemed a trust fund, primarily to be applied to the discharge of the partnership debts. That a long series of authorities has established this equity of the joint creditors, to be worked out through the medium of the partners ; that is to say, the partners have a right, inter se, to have the partnership property first applied to the discharge of the partnership debts, and no partner has a right except to his own share of the residue ; and the joint creditors are, in case of insolvency, substituted in equity to the rights of the partners, as being the ultimate cestuis que trust of the fund to the extent of the joint debts. That the creditors, indeed, have no lien; but they have something approaching to a lien; that is, they have a right to sue at law and by judgment and execution to obtain possession of the property; and in equity they have a right to follow it as a trust, into the possession of all persons who have not a superior title. But in the mean time the creditors, cannot prevent the partners from transferring it by a bona fide alienation.

See, also, 1 Story’s Eq. Sec. 675.

In the case of a judgment and execution against one partner for his individual debt, a levy can be made only on his interest, if any, in the partnership property, after the payment of the partnership debts. The sale does not transfer any part of the joint property so as to entitle the purchaser to take it away, but the purchaser becomes only a tenant in common with the other partner. 1 Story’s Eq. Sec. 677. In an ordinary case, therefore, the sale by the sheriff might work no injury to the creditors of the partnership. But when each partner confesses a judgment, and executions are issued and levied on all the interest of each partner in the partnership goods, and the partnership goods themselves are advertised to be sold, not the interest of the respective partners therein after paying the debts of the firm, it is manifest that the intention is that the goods shall be delivered to the purchasers; and it being a case where the firm itself is insolvent, it is manifest that the interest of the creditors of the firm will be sacrificed; and there being no partner left to represent the interest of the partnership creditors through whom they can assert their interests, it seems to me an extraorinary proposition that the creditors of the partnership have no means, and the courts no power to prevent such a sacrifice.

1 Barbour, 480.

The affidavit of the consideration of the judgment of April 8, 1848, for the penal sum of $20,000, in favor of Wm. Lee against Andrew Rankin and George H. Lee, states the consideration to be “ to secure certain promissory notes which the said Wm. Lee had endorsed for the accommodation of Rankin and Lee, as follows and then states, first, certain notos given by the said Lee; next, a bond and mortgage executed by the said Wm. Lee to Sami. Cook, for $1675, given upon land of the said Wm. Lee, dated May 29, 1845, which money was then and there lent by Sami. Cook to Rankin and Lee, $1675 00

And, after stating other matters, states one joint note of Andrew Rankin, Wm. Lee, Alfred and George H. Lee, to Sami. Cook, for $650 00, dated Dec. 9,1845, 650 00

The bill states that in May and Dec., 1845, when the said bond and mortgage, and the said joint note above mentioned wore given to Sami. Cook, the firm of Rankin and Leo consisted of the said Andrew Rankin and William Lee himself. . . . If this be true, and for the present inquiry I must take it to be true, there is nothing in the case to show how the present firm of Rankin and Lee, (composed of Andrew Rankin and George H. Lee), is liable for these sums of $1675 and $650.

If it be said that George H. Lee, of the last firm of Rankin and Lee, also signed the bond and warrant to confess this judg- ' ment, it may be answered that if be knew that these matters were to be included in the judgment, it presents a very suspicious state of things; and among the surmises that might be made in reference to it, perhaps not the least probable is, that though this young man, the son of Wm. Lee, became nominally the partner, instead of his father’s name being continued, yet that the father was really, and so far as capital was concerned, the partner; and if so, the whole matter of these judgments confessed to Wm. Lee is an attempt to withdraw his capital, perhaps the only capital on which the partnership business was done, from responsibility for the partnership debts. It may be further remarked, that if .George H. Lee was really as well as nominally the partner, and if he knew and consented that these matters should be included in the judgment to Wm. Lee, it could only be with some ulterior and fraudulent design. I cannot consider a judgment for this part of the consideration stated as standing on any better ground than a judgment'confessed by one partner for his separate debt.

Another item of the consideration of this judgment as stated, is Andrew Rankin’s note endorsed by Wm. Lee, due July 28, 1848, for - - - - - - $396 69

This is subject to the same remarks, and must also be considered as a judgment for the separate debt of Andrew Rankin.

Then there is a judgment confessed by Andrew Rankin and Geo. H. Lee, partners, to Wm. Lee, a part of the consideration of which is, u notes given by Wm. Lee,” none of which was due, 13085 00

Another part, business paper of Alfred Mead, a good man, as the bill states, endorsed by Wm. Lee, and not due, 1460 00

Another part, notes of Rankin and Lee, endorsed by Wm. Lee, and not due, 3415 00

And the other part of the consideration stated is, at .best, the separate debt of Andrew Rankin 2121 69

And a judgment confessed by Andrew Rankin alone, and of course for his separate debt, for 298 28

And a judgment confessed by George H. Lee alone, and of course for his separate debt, for 148 25

The quasi lien of the creditors of a partnership on its property, as against creditors of individual members of the partnership, gives this court jurisdiction for the purpose of protecting the creditors of the partnership.

Story, supra, 1 Barbour, 480.

The judgment in favor of Leo, if had in part, would, at law he set aside altogether.

This court is not called upon to divide it, and let it stand for part, and let a sale he made under it in part; hut might, in the progress of matters in this court, deal with its different parts according to equity.

On the same day, another judgment was confessed by Rankin and Lee to Wm. Lee, for $5000, the consideration for which, as stated in the affidavit, is to indemnify him against loss and damage by reason of his having endorsed a large amount of business paper, notes and bills of exchange of the said Andrew Rankin and George H. Lee, to enable them to get their bills and notes discounted and passed away, amounting in all to $17-898 44, whereof $3,253 13 is past duo, and has not been paid.

This, as 1 understand it, is for business paper made by other persons, payable to Rankin and Lee, and on which Wm. Lee endorsed his name to aid them in getting the paper discounted. And on this state of things, and without having paid $1, he makes affidavit that $5000 is clue to him. It does not even appear that any of the paper was discounted; and if it was, and if he had been fixed as endorser, the makers of the notes, who may he all good, for aught that appears, would, on his paying the paper, be liable to him. It cannot bo expected that the court will permit Mr. Lee to proceed on such a judgment as this to withdraw the partnership property from the partnership creditors.

It soems clear to me that tho intention of the parties to these proceedings has been to effect, by moans of judgments, an assignment of all the partnership property, to the exclusion of tho partnership creditors. Such an assignment is void, by statute.

The injunction will he dissolved as to the judgment and execution of Elias Plum against Rankin & Lee, for $795 51; and as to the judgment and execution of Caroline Hayden against Rankin & Lee for $206; and as to the sale of the separate property of Andrew Rankin under the judgment and execution of Elias Plum against them; and as to the sale of the separate property of George H. Lee under the judgment and execution of Caroline Hayden against him. As to all the other judgments and executions, the motion to dissolve the injunction is denied.

Order accordingly.