text:
    James H. Tichenor v. William S. Wilson and others.
    An injunction to stop chemical works, applied for after the works had been in opera» tion three and a half years, by an individual who had owned and resided on adjoining lands during that time, was denied.
    On a bill by an individual, complaining* of injury to his property and the health of himself and family by chemical works on lands adjoining the lands on which he resides, and which he alleges to be a nuisance, an injunction should not be allowed unless a clear case of nuisance and of irreparable injury be made out.
    The bill, filed April 11, 1849, stales, that the complainant for about 1G years past lias been, and still is seized and possessed of a farm 'within the bounds of the city of Newark, of about 40 acres, situate on the south side of the Passaic river and adjoining thereto, a short distance to the eastward of the compact part of the said city. That he has resided on said farm during the period aforesaid, except a few years prior to 1844, and still resides thereon, his dwelling house and out-buildings being situated near the bank of said river; and that in the vicinity of the said dwelling house and on the said farm he had, during the time aforesaid, and still has, a number of fruit, ornamental and shade trees there growing.
    That in 1845 he was applied to by William S. Wilson and Frances Brown, of the city of Now York, to soil to them a few acres of land on the banks of said river as a site for the erection of a factory for the manufacture of chemical products, and under the general -name of chemical works, the said Wilson and Brown alleging and assuring the- complainant that the works they designed there to establish and carry on would be perfectly harmless, and would be in no respect injurious to the complainant’s property or to the health of his family or that of the neighborhood.
    That under such assurances he sold and conveyed to said Wilson and Brown, in February, 1845, rising three acres of land on the bank of said river, a short distance to the westward of his said dwelling house; and that said Wilson and Brown, during; the same year, proceeded to erect a large factory on the land so sold to them by the complainant, and to establish a manufactory of chemical substances of various kinds therein; which said factory and establishment go under the denomination of the Passaic Chemical Works.
    That the said Chemical Works are situated about 200 yards from the complainant’s dwelling house, and in the immediate vicinity of his said trees.
    That since the time of erecting said works they have been and still are in active operation on an extensive scale; and the complainant has been informed and has discovered that the chief business of the said works is the manufacture of soda, ash, and other substances necessary or incidental thereto, or based upon, resulting from or connected with the same, such as sulphuric acid, muriatic acid, bleaching powders, sal-soda, borax and the like.
    That the gases, vapors and exhalations proceeding and escaping from the said works and manufacture are very noxious and deleterious, both as to the health of the complainant and his family and neighbors, and also to the surrounding vegetation ; so much so that great numbers of the complainant’s said fruit, ornamental and shade trees have died or are dying under the effects of the said gases, vapors and exhalations; and the grass, grain, vines, and other articles of vegetable growth, on the complainant’s said farm being and growing, have been greatly injured, damaged or destroyed thereby; and the complainant fears and has reason to believe and has no doubt that, if the said establishment and manufacture are permitted to go on, his said grass and other things will continue to be injured, damaged and destroyed, and he will in a short time lose all his said trees, and will be obliged to remove from the vicinity of the said works.
    That the said gases, vapors and exhalations are so corrosive in their nature that almost all the metallic substances exposed to the atmosphere in and about his premises, such as farming utensils, cutlery, locks, hinges, nails, and even plate, have become, or when so exposed shortly become corroded and greatly damaged and injured; and that said gases, &c. are so offensive and deleterious that the complainant’s family is often obliged, for protection therefrom, to close the doors and windows of the house, and sometimes even to cover their heads with the bed clothing at nights.
    That the said chemical works and manufacture are a nuisance io the neighborhood in which they ore situated ; and especially to the complainant’s said dwelling house and farm, with the premises and appurtenances thereof; and that the complainant has borne the same until his patience is exhausted ; and he fceln obliged to como to this Court for protection and relief.
    That the said works and manufacture have always been and still are conducted and managed for the proprietors thereof, by ono Wm. T. Clough, a practiced chemist and manufacturer by profession, who, as the complainant has been informed and believes, besides being chief agent and manager of said works, has had and still has some interest in the same or in the profits and emoluments thereof.
    That the original and chief proprietors of the said works, the said Wilson and Brown, continued to carry on the same as principal proprietors until about February, 1846, when, as the complainant is informed and believes, they associated with themselves one Robert L. McIntosh, of the city of New York, as a partner, and in connection with him, under the firm of Wilson, Brown & Co., continued to carry on the said works until on or about July 30, 1846, when the said firm of Wilson, Brown & Co., having been unfortunate in business, became insolvent and stopped payment, and, as the complainant is informed and believes, assigned all their property to one Frederick Tracey, of the city of New York, for the benefit of their creditors, and have since that time hitherto carried on and are still carrying on the said works under and by the authority of the said Tracey as such assignee, the said Wm. T. Clough acting therein as before mentioned.
    The bill prays that the defendants may answer ; and may be injoined from continuing said works, and for such further and other relief &c.
    On the reading of this bill, and an application thereupon for a preliminary injunction, the Chancellor directed notice to be given to the defendants.

      On a subsequent day, upon notice to tbe defendants, tbe application was made.
    The answer of the defendants Wilson, Brown and Tracy was sead.
    Wilson and Brown deny that they or either of them gave any assurances whatever to the complainant respecting the effects of .the said works, or whether the same would be injurious to the property of the complainant or to the health of his family or of •■¿he neighborhood, and say that neither of these defendants had. at that time any knowledge of the practical details of said chemical business, or of the processes used in said manufacture, or the effects thereof; and that neither of them represented to the •complainant that they had such knowledge, or that they were ■qualified to give such information.
    They say that the land sold by the complainant as stated iu his bill was of little value to the complainant for farming purposes, and was sold for the express purpose of erecting and carrying on the said chemical works, and that the same was fully understood by the said parties, and that no deception was practised towards the complainant with respect to the effects of said works or the harm or injury that might result therefrom to the •complainant or- his property.
    They say that large improvements were made by said Wilson ■and Brown, soon after tbe purchase, (describing them,) costing, with the money paid for the land, $40,000. That the complainant, while said improvements were in progress, was often at the works, and had full knowledge of the value and general nature •of said improvements, and made no objection whatever to their .«erection.
    That the said works are now separated from the complainant’s said farm by a public highway.
    They deny that the gases, vapors and exhalations from said works are noxious or deleterious to the health of the complainant ■or his family or the neighborhood ; but, on the contrary, they ■say they have been informed and believe that tbe complainant ■and his family enjoy as good or better health than they did beloro said works wore established; and they severally say, that they have never heard any complaints in the neighborhood of said works of injury to health, nor do they believe the same are at all injurious to personal health.
    They deny that tho gasea are noxious or injurious to the vegetation around said works, and say they have never perceived any such injury; and that, if any such injury has ever resulted to tho surrounding vegetation, it has been contingent and temporary and not continued, and is not a necessary consequence of the operation of said works.
    They say that the gases proceeding from the manufacture of some of the said chemical products are injurious to vegetation if allowed to escapo; but that such escape never occurs except from unavoidable accident or tempest or similar causes beyond the control of those having charge of said works.
    They say they have no knowledge that any articles of vegetable growth on the complainant’s farm have died, or are dying, or have been injured, damaged or destroyed by said gases, vapors or exhalations; but, on the contrary, they have been informed and believe, that the complainant raised larger crops from his said farm in 1848 than ho did in any previous year.
    They admit that the said gases are corrosive to metallic substances when exposed to such gases; but they deny that any serious injury has ever resulted to tho complainant’s property from this cause ; and say they have no knowledge that the complainant’s family have ever been disturbed in their rest at night, or put to any inconvenience at any time by reason of such gases or vapors. And they deny that the complainant will be under tho necessity of removing from his said farm, or that he has been put to any serious inconvenience on account of the operations of said works.
    They say that the gases which the complainant in his bill has alleged to be injurious to Iris property and health are valuable; and that it is the interest of the proprietor of said works to retain them; and that a large proportion of the profits of said works arises from tho sale of products formed from said gases when condensed. That similar works are carried on without interruption in this and foreign countries, sometimes in the midst of populous cities, and sometimes in the country in the vicinity of farming lands; and that the machinery and apparatus used in said Passaic Chemical Works are calculated to retain all of said gases, and are capable of preventing their escape entirely 5 and that the said machinery and apparatus are much more perfect in their construction and operation than they were during the first year said works were established.
    They deny that said works are a nuisance in the neighborhood, or to the complainant’s property; but say that the same are a general and useful improvement to that part of the said city where they are situated, and particularly to the complainant and his property ; that numerous dwelling houses have been erected in said vicinity since the establishment of said works and in consequence thereof ; and the value of property generally has been increased thereby in the neighborhood; and that the products of said works are useful articles of manufacture and commerce.
    They deny that Wm. T. Clough has any interest in the profits of said works, and say that ho receives a stated salary as his only compensation; and that ho has not had any other interest therein since July, 1846.
    They deny that Robert L. McIntosh now has or ever had any interest in said works.
    Wilson and Brown deny that they ever made any assignment of all their property to said Frederick Tracey, or to any other-person, for the benefit of their creditors; and deny that said Wilson and Brown are carrying on said works under any authority of said Tracey, or of any other person, as assignee or otherwise for the benefit of their creditors ; but the defendants Wilson and Brown say that they and their wives, on the 28th July, 1846, for a valuable consideration, sold and conveyed to the said Frederick Tracey as trustee of Susan T. Wilson and Eliza T„ Brown; and that the deed was duly recorded shortly after it was made.
    The defendant Tracey says, that he, as such trustee, is now the sole owner of said works and land 5 and that the defondants Wilson and Brown hayo no interest whatever in the ownership or profits of said works.
    The defendant Wilson says he is the general agent of said Frederick Tracey for carrying on said works 5 and that he has a knowledge of the practical details of said business and of the processes used in said manufacture ; which knowledge has been acquired since the said works have been in operation.
    The defendants say, that the complainant .has never made any complaint to them or cither of them of any injury resulting to his property or liis or his family’s health. And the defendant Wilson says the complainant knew that he, Wilson, was employed about the business of said works; and that for a period of four months this defendant Wilson resided in the vicinity of said works: and that the complainant during that time and before and since frequently saw and conversed with him.
    The defendants say, that the said works are carried on at a great expense ; and that large numbers of laborers and workmen are constantly employed therein, and a largo stock of valuable materials of a perishable nature is always on hand; and that said works cannot be stopped or suspended without great pecuniary loss to the proprietor and to the workmen and laborers therein employed.
    The defendants Wilson and Brown disclaim all right, title and interest in said works.
    The answer of William T. Clough admits that the works are conducted and managed by him for the proprietor thereof; and that he is a practical chemist and manufacturer by profession; but he denies that he has any interest in the works or in the profits thereof.
    He says that at the time of the establishment of said works he had an interest in the same and shared in the profits thereof : and that such interest continued up to July, 1846, when said works were sold by Wilson and Brown, the original proprietors thereof, to Frederick Tracey as trustee for Susan T. Wilson and Eliza T. Brown, who, this defendant belieres, is now the sole owner thereof as such trustee ; and that since the time of such sale and conveyance this defendant has been superintendent of said works, and that ho receives a stated salary as Ms only compensation for services rendered in said works as sucli superintendent ; and beyond that he lias no interest to kis knowledge or belief, nor does he claim or pretend to have any right, title or interest in or to the said Passaic Chemical Works, or the matters in the bill set forth, or any part thereof. And he disclaims all interest in the property and in the profits of the manufacture now or heretofore carried on therein since July, 1846, as in said bill mentioned, or any part thereof.
    Affidavits were read in support of and in opposition to the motion for an injunction.

      J. P. Bradley and A. Whitehead in support of the motion.
    They cited Eden on Inj’n, 275; 2 Story’s Eq., sec. 925, 6, and note A; 2 Bro. Ch. Ca. 531; 3 Atk. 21.

      J. Van Arsdale and W. Pennington contra.
    They cited Drury on Inj’n, 238, 245; 1 Railway Cases, 120; 18 Ves. 211, 515 ; Milford’s Pl. 145; 2 Story’s Eq., pages 204, 5; 7 John. Ch. 315; 3 Myln & Kean, 169; 8 Cond. Eng. Ch. 336; 19 Ves. 617; Eden on Inj’n, 226, 236; 2 Green's Ch. 350, 442; 1 Halst. Ch. 410; 3 Daniel’s Ch. Pr. & Pl. 1860.
   The Chancellor.

A sufficient reason for denying the summary action of this Court by injunction is found in the fact, that the works had been in operation throe and a half years before the bill was exhibited. It would seem that no very serious consequences to the complainant or his property are to be apprehended from the little further delay which will be caused by leaving him to tho ordinary proceedings at law in cases of alleged nuisances. And this course is the more proper in this case from the consideration that the neighborhood, the public, have so long permitted the works to be continued without complaint in the usual way.

Again, on a bill by an individual, complaining of injury to his property and the health of himself and family by such an alleged nuisance, an injunction should not he granted unless a clear case of nuisance and of irreparable injury he made out. The case, as it appears from the bill, answer and affidavits, fails, I think, in these respects,

Motion for injunction denied.


source: Caselaw Access Project

author: The Chancellob.

license: Public Domain

text:
    Enoch Barkelew and others v. Joseph M. Taylor and Christian I. Walker.
    A purchaser of land at sheriff’s sale under an agreement with the defendant in execution to buy it and advance the money for his accommodation and relief, and to permit him to redeem, which agreement was made known to the sheriff and the persons attending the sale, and in consequence of which the property was struck off to the purchaser greatly below its value, was adjudged to hold it only as in mortgage.
    The hill, filed March 23d, 1846, states, that, on or before September 23d, 1836, Peter W, Barkelew was seized and possessed of certain lots, tracts and parcels of land described in tbe bill, the whole of said lands being of the value of |S,120.
    That on said 23d of September, 1836, Samuel Whitehead obtained a judgment against said Peter W. Barkelew, for $900, on which judgment an execution was issued and delivered to the then sheriff of Middlesex, and levied upon all the said tracts of land, and the said sheriff advertised the same to he sold, at the village of Washington, on the 5th of August, 1839.
    That on the said 5th of August, the said Peter W. Barkelew found himself much embarrassed by having his said property advertised for sale, and was unable to raise the money to pay the said judgment. That Joseph M. Taylor then proposed to be a friend of said Peter W. Barkelew, and offered to aid him in bis difficulties, and proposed to him to let the whole of said property be sold by said sheriff and be struck off and sold to him the said Taylor for the amount due on the said judgment or thereabouts ; and that he the said Taylor would pay the then indebtedness of him the said Peter W. Barkelew and relieve him from his embarrassments ; and that afterwards, when he the said Peter W. Barkelew should he able to raise the money, he might pay hack the amount which had been thus paid by the said Taylor, together with some reasonable compensation for his services, and that said Taylor would then reconvey the said lands to the said Peter W. Barkelew; it being then understood by said Peter W Barkelow and said Taylor that the said lands wore worth some $2,000 more than the amount of incumbrance on them.
    That the said Peter W. Barkelew, having entire confidence in said Taylor, and believing that said Taylor really intended to befriend him, accepted the said proposal, and consented that the whole of said lands should be struck off and sold by the said sheriff to the said Taylor for the amount due on the said judgment, upon the terms and conditions proposed by the said Taylor as aforesaid; and that the said sheriff was informed of such arrangement when he offered the said lands for sale as hereinafter stated.
    That a number of persons attended the said sale for the purpose of purchasing said lands or some part thereof, and wore ready and willing to pay a full price for the same; but that the persons so intending to purchase were informed, at the time of said sale, by the said Taylor and the said Peter W. Barkelew, that the foregoing arrangement had been entered into between the said Taylor and the said Peter W. Barkelew, and that the said Taylor was going to purchase the said lands for him the said Peter W. Barkelew for the amount of the said judgment, and that the same were to be reconveyed to the said Peter W. Barkelew upon his repayment of the money aforesaid. That the persons so in attendance and desiring to purchase as aforesaid, on being thus informed, declined to make any bid on the property whatever, and the whole of the said lands were permitted to be cold by the said sheriff and purchased by the said Taylor for $1,260 ; and that a deed was accordingly made by the said sheriff to the said Taylor and one Christian J. Walker, who, for some cause unknown to the complainants, is joined with the said Taylor as a grantee in the said deed.
    That within a year after the said sale, the said Peter W. Barkelow procured the amount of money, with interest, which had been paid by said Taylor for the said Peter W. Barkelew for the p ardíase of said lands as aforesaid, and tendered the same, together with a reasonable sum as a compensation for his services, to the said Taylor, and requested him to reconvoy to the said Peter W. Barkelow the said lands, according to the said agreement; but the said Taylor refused so to do, and has ever since refused; and that the said Taylor and Walker have, since the said tender, sold and disposed of all or nearly all of the said lands, for large sums of money, but for what particular amounts the complainants are not informed; the whole of which moneys, together with the use and profits of the said lands, the said Taylor and Walker have appropriated to their own use and benefit.
    That the said Peter W. Barkelew died on or about August 20th, 1845, without having in any way settled the said matter with the said Taylor.
    That said Peter W. Barkelew died intestate and without issue, leaving the first named complainants his heirs-at-law; and that the last named complainant has been duly appointed administrator &c. of the said Peter W. Barkelew.
    The bill prays, that the said Taylor and Walker may be decreed to reconvey or cause to be reconveyed to the complainants the said heirs-at-law the said lands upon being repaid the money by them or either of them paid and advanced as aforesaid for the said Peter W. Barkelew, together with a reasonable sum for their or either of their services in the premises; or if it shall seem more equitable, that the said Taylor and Walker, or one of them, may be decreed to pay to the complainant the said administrator, to be distributed according to law, all the moneys for which the said Taylor and Walker, or either of them, have or has sold the said lands, after deducting the moneys paid as aforesaid by said Taylor and Walker, or either of them, for the said Peter W. Barkelew, together with a reasonable compensation for his or their services in the premises; and for such other and further relief &c.
    The defendants put in their joint and several answer:
    That as to so much of the bill as seeks to compel them specifically to perform the agreement in said bill mentioned for a re-conveyance to said Peter W. Barkeley by the defendant Taylor ; or seeks to compel these defendants to reconvey said lands to the complainants pursuant to any such agreement; or seeks any other relief as relating to said lands; or seeks any discovery from these defendants of or concerning any agreement allcged to have been made between the said Potor W. Barkelow and the defendant Taylor fox' a reconveyance by said defendants to the complainants of said lands, theso defendants do plead in bar, and for a plea say, that by the act entitled a An act for the prevention of frauds and perjuries,” passed November 11th, 1YG4, it was, among other things, enacted: That no action should be brought whereby to charge any person upon any contract or sale of lands, &e., or any interest in or concerning the samo, unless the agreement upon which such action should be brought, or some memorandum or nota thereof should be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or hor legally authorized. And these defendants for a plea further say, that neither they the defendants, nor any persoix by them lawfully authorized, did ever sign any contract or agreement in writing for making or executing any sale or reconveyance to the said Peter W. Barkelew or to the complainants of the said lands or any part thereof or any interest therein, or to any such effect, or any memorandum or note in writing of any such agreement.
    And in aid and support of the said plea, for answer to the residue of the bill, they admit the seizure and possession of said Peter W. Barkelew, and the judgment and execution, and advertisement for sale stated in the bill. And the said Taylor, answering for himself, admits, that at the time of said salo the said Peter W. Barkelew was so much embarrassed as to be unable to raise the money to pay the said judgment, but he denies that he ever offered to aid the said Peter W. Barkelew in his difficulties, or ever proposed to him to let the whole of said property bo exposed to sale and struck off to him the said Taylor for the amount due on the said judgment, nor did he over promise to pay the then indebtedness of the said Potor W. Barkelew to relieve liim from his embarrassments, or agree with, said Peter W. Barkelow that afterwards, when ho the said Peter Vvr. Barkelow should be able to raise the purchase money so paid for the said premises, that upon paying the amount of the purchase money laid out by this defendant for the said preixiises and some reasonable compensation for his services, that thereupon he the said Taylor would reconvey the said lands to the said Peter W. Barkelew. And this defendant further denies that there ever existed any understanding between him and the said Peter W. Barkelew that the said lands were worth some $2,000 more than the incumbrance upon them. But this defendant alleges the truth to be, and the defendant Walker believes such allegation to be true, that, some time previous to the said sale, he had a conversation with the said Peter W. Barkelew, and stated to him that he understood that some difficulty existed as to the title of said property, but still he was willing to bid it up as high at sheriff’s sale as $1,500; but, after having bought the same, if it should be struck off to him for that sum, he would assist him the said Peter W. Barkelew, if he was in want of money; and this defendant avers that he did from time to time give the said Peter W. Barkelew small sums to relieve his immediate necessities; but never from any idea that he was legally or equitably bound to pay him any moneys whatever.
    And this defendant further denies, and the defendant Walker believes such denial to be true, that any such proposal as above mentioned was ever accepted by the said Peter W. Barkelew, or that the said sheriff was ever informed of any such arrangement as above mentioned at the time the said property was offered at sheriffs sale as aforesaid.
    And the defendants deny that in consequence of any such arrangement as above set forth the persons who attended the said sale declined to make any bids, they being informed that the aforesaid arrangements had been entered into by the said Taylor and Peter W. Barkelew. But they allege that the persons who attended said sale came there for the purpose of bidding for the said property, and did actually bid for the same; and that, these defendants being the highest bidders, the property was struck off to them, for the sum of $1,260; and a deed was accordingly made to these defendants, by the said sheriff, of the lands so purchased.
    And the defendant Taylor denies, and the defendant Walker believes such denial to be true, that the said Peter W. Barkelew, within a year after the sale, or at any period during his life, offered or tendered to him the said Taylor the money expended in the purchase of the said lands, together with reasonable compensation for his services, or that the said Peter W. Barkelew ever requested him the said Taylor to reconvey to the said Peter W. Barkelew the said lands.
    And these defendants admit, that, since the said sale, they have sold and disposed of a considerable quantity of the said lands, for a valuable consideration; and that most of the property so sold by them was sold during the lifetime, and, as they believe, with the full knowledge of the said Peter W. Barkelew, he neither interposing or attempting to interpose any objection to the sale of the same.
    A replication was filed; and depositions were taken on the part of the complainants, only.

      John Culver, sworn for the complainants,
    testified that he was present at the sale. That he was acquainted with the lots advertised to be sold. He went to the sale with a view of purchasing a wood lot, of about 40 acres, if it were sold for a reasonable price. He was willing to give $ 25 an acre for it; he thought it would be cheap at that, and would probably have given a little moro. The defendant Taylor asked witness what the wood lot was worth, and witness told him he would like to have it at $25 an acre. Witness did not bid on this lot, or any other. The reason was, that Taylor wanted him to go to Peter W. Barkelew and get him to agree to put up all the property at once; and said that he, Taylor, would bid it off and let 1dm, Peter W. Barkelew, have a year or more to redeem it. Witness went to Peter W. Barkelew and told him what Taylor said. Peter W. Barkelew said ho would rather have it in writing. Witness told Peter W. Barkelew that lie thought Taylor’s word as good as writing. Witness then went to Taylor and told him what had passed between witness and Peter W. Barkelew, and that witness thought that Peter W. Barkelew would be willing to have it sold without writing. Taylor said he wanted to have the property sold by the sheriff, rather than advance the money without a sale, because that would induce Peter W. Barkelew to stir himself and get the money. Witness and Peter W. Barkclow had several talks about it. 'Witness told him what Taylor had said — that he wanted to befriend him — that others had cheated him and they should cheat him no longer. Peter W. Barkelew finally consented to and appeared to be satisfied with the arrangement. Taylor was to bid the whole property up to the amount of Whitehead’s incumbrance and have it all struck off together to him. "Witness would have bid had it not been for t this arrangement, and the property had been put up in lots. Witness wanted the wood lot, but would not bid for it, if it had been put up seperately, after this arrangement had been made. The understanding between witness and Taylor was, that he was going to buy the property for the benefit of Peter W. Barkolow. Witness stayed until after the property was; struck off. The sheriff was present when Taylor wanted mo to tell Peter W. Barkelew about the matter, and when I came back. The sheriff understood the arrangement that had been made between Taylor and Peter W. Barkelew, that the whole property was to be put up together and struck off to Taylor. All the property was put up at once; there were four lots ; and all struck off to Taylor. Besides Taylor, Whitehead bid a while, and then inquired of me what was going on. I told him the arrangement that had been made, and then he said he would bid no more than to the amount of his incumbrance. A year, it may be nearly two years afterwards, Peter W. Barkelew complained to mo for having said that Taylor was a man of Ms word ; that he had taken the money to Taylor to redeem the property and he refused to take it. When I saw Taylor I told Mm what Peter W. Barkelew had said, and asked Mm if Peter W. Barkelew had brought the money to him in time. Taylor said that he did, but that he had come with an armful of money, and that he, Taylor, would not count it, because he knew it was not Peter W. Barkolew’s money; that he knew it was Manahan’s money, and that they would only cheat him, Peter W. Barkelew, out of the property, and that he, Taylor, might as well have the property as they.
    On cross-examination he says : Quite a good many persons attended the sale. I do not recollect that any person bid except Taylor and Whitehead, though there might have been, Taylor and Peter W. Barkelow came together at the sale several timos, both after and before the arrangement, i do not know that I heard any conversation between them. If I did I do not recollect it. There was no specified timo in winch the property was to be redeemed. Taylor told me to say to Peter W. Barkelow that he should have a year or more in which to redeem the property.

      Hcxrmel Whitehead, morn for the complainants.
    Was present at the sale. Was acquainted with all the property; it was all 3et up together. I went to the sale with an understanding with Peter W. Barkelow that I was to purchase the whole property, and did not expect that any one would bid against me. I bid to the amount of my incumbrance, and some one bid over me; I did not know who it was, and I bid again. There was another hid. I asked the sheriff who was bidding. He said it was a good man. I hid again; and then saw Joseph M. Taylor wink. I then went to Taylor and asked him if ho was bidding. He said yes, that be was going to purchase it to give Peter W. Barkelow a chance. Well, said I, if it is a friendly act between you and him I have nothing to say only this — I have his note for $18 or §19, for the costs of getting the execution; if you will pay that, I will bid no more. Taylor nodded; said nothing. I understood him to agree to pay it. He did pay it afterwards. ,4ftor the sale was over Taylor asked me if I wanted the whole of the money. I told him if he would let me go snacks with him if Barkelow did not live up to hie contract with him, Taylor, my money might lay. Previous to this I had a conversation with the last witness, John Culver, who had told me what the arrangement between Taylor and Barkelow was. Taylor then told me lie had a partner, C. J. Walker, ono of the defendants, and if I would not let the money lay a little while ho would get it out of the bank. I lot it lay two or three months. Taylor never told •ue what the arrangement was; I had it from Culver, the same as ho has now stated in his testimony. Either at that timo or -some other time, Taylor told me that Barkelcw had been cheated a great, deal and they should cheat him no more.

      On cross-examination : I advised Barkelew and liis friends that all the lots should bo put up together. This was long before the sale, and under the understanding that I was to buy it.

      James Yates, sworn for complainants.
    Was at the sale. Previous to the sale there had been an arrangement between Barkelew, James C. Stout and myself, that I should become the purchaser of the property, upon conditions. I am not positive it was all the property. By this arrangement Barkelew had the right of redeeming the property in two years. This arrangement fell through. On the day of.sale, and before the sale took place, Barkelew and Taylor were outside the house together. Barkelew, as he came near where I was, said to me that he had made the same arrangement with Taylor that he had made with me. Taylor said nothing pro or con.; he was within hearing distance ; he passed on by us; can’t say that he heard Barkelew’s remark. I did not hear Taylor say any .thing on the subject during the day. Before Barkelew told me of the arrangement with Taylor, I had determined to purchase the wood lot if it did not go too high ; this was my purpose in going to the sale, and I should notTiave gone but for this purpose. I supposed the wood lot at the time to be worth $20 or $25 an acre. If the wood lot had been set up alone and the payments had not been too hard, I would have given $25 an acre for it. I concluded, from what Barkelew said, that Taylor was about to befriend him, and that he would redeem the property, and I therefore did not bid.

      Cross-examined. Tthere was nothing more than a verbal arrangement between Barkelew, Stout and myself. This was some months before the sale. Brrkelew applied to me to assist him. I consented provided Stout [came in too. I saw Stout, and he agreed to it. The arrangement fell through in consequence of Stout being disappointed in getting money.

      David Yates, sworn for complainants.
    I was present at the sale. I heard some conversation between Taylor and Barkelew at the sale. Taylor called Barkelew one side. I heard Taylor say to him that ho had better let the sale go on, and he Taylor ‘would buy it in for him, Barkelew. Barkelew assented, and said ££ very well.” Something was said between them as to the length of time Barkelew was to have to redeem the property. I did not hear the time that was mentioned; they talked rather low. I stayed until the property sold. There was very little bidding; only some few bids. I understood from Taylor and Brakelew’s conversation and also from other’s conversation that there was some certain time agreed upon between Taylor and Barkelew in which Barkelew had a right to redeem the property, but did not understand what that time was. There was a number of people in attendance on the sale.

      Vreeland Vandev enter, sworn for the complainants.
    I was at the sale. There was a number of persons there. About half an hour before the sale I stepped out in the yard, whore I saw Barkelew and several others. Barkelew was telling what Taylor had agreed to do. Some person said to him, if he wanted to haye the property sold he had better have it sold in such lots as it lay in. He refused to do so, and said that from the offer Taylor had made he would have a chance to save his property. Some person, I think it was John Culver, said to Barkelew, that if Taylor was going to do as he said, he had better haye a written agreement to that effect. Barkelew said he would trust Taylor without a written agreement. While we stood talking there, Taylor came out and asked Barkelew what he was going to do, whether he was going to let the sale go on as he had' agreed to do. Barkelew said he was. Then Taylor said to him, if you want to'save your property do as I tell you, and not put it up in lots ; sell it all together. Taylor then said he had agreed to buy it in for Barkelew and give Mm a chance to redeem it. When the property was set up it was the general understanding that Taylor was buying it for Barkelew. I went there with a view of buying some of the property, if set up separately. I did not bid because the property was more than I was prepared to buy, and, besides, I understood that Barkelew was to be benefited eventually. I desired to buy the house and lot in the village of Washington; I thought it worth then $600, and would have given that priee for it.

      Cross-examined. Tho property was struck off at about $1100 or $1200.

      In chief. I am acquainted with the two fields mentioned in the bill. One of them I think worth $50 an acre at the time of the sale; this field is on the road from New Brunswick to the old bridge; I have seen the other in passing, but have formed no opinion of its value.

      Cross-examined. Every one had a chance to bid if they had been willing to exercise hard feelings towards Barkelew. It was the talk and understanding at the sale that Barkelew’s friends would not bid against him.

      Hugh Manahan, sworn for the complainants.
    I am the brother of William Manahan, one of the complainants. I was not present at the sale. Barkelew applied to me for money to redeem the property, after it had been purchased by Taylor. I let him have the money for that purpose. The amount was something like $1200 or $1300. He tendered it to Taylor in my presence, Taylor laughed at him. Barkelew said to him, Mr. Taylor, I have the money I owe you, and I want to pay you. Taylor smiled, and said something; he did not take the money. Barkelew said to Taylor that it was the money to redeem his land — that he wanted to get his land back again — that he had the whole of it, principal and interest. Taylor made no objection that there was not enough money; ho would not look at it. He made no objection that it was not in time. Taylor made no objection to the kind of money.

      John E. Reid.

    I was present at the sale; I came in about the time it was struck off. I was acquainted with the four lots advertised for sale. I intended to attend the sale with a view of purchasing part of the property. Word come to me that tho property was going to be bought in for Barkelew, and this made me dilatory about going. I bad intended to buy the bouse and lot in Washington; I owned on three sides of it. I had calculated to give from $550 to $600 for it, and had provided the money to pay for it; it was a cash sale. Barkelew asked mo $1100 for it. I had made up my mind to give $600 for it if it ■went as high as that. If I had not heard that Taylor intended to buy in the property for Barkelew, I should have attended the sale at the time and hid to that amount for the house and lot. In a conversation with Taylor some time afterwards, he told me that Barkelew had been cheated a great deal, and he did not intend he should he cheated any more, and he had bought the property for Barkelew, and meant to take care of it for him and do right by him. I am acquainted with the two fields mentioned in the hill; the one on the road from New Brunswick to Old Bridge — and the other on the road from Washington to Cranberry. The first was worth at the time of the sale $50 an acre; the other $45 an acre.

      Cross-examined. The impression that Taylor was buying the property for Barkelew was not derived from the fact that Taylor had bought. There were several persons at the sale who would have given twice the price for it that Taylor did.
    The cause was heard on the pleadings and evidence; it being agreed that both the plea and the ease on the answer and evidence should bo heard at the same time.

      J. Vandyke for the complainant's.

      P. D. Vroom for the defendants.
    He cited 2 Story’s Eq. sec. 758, 5, 6, 8, 9, 762, 4, 768.
   The Chancellob.

Upon the facts in evidence I am of opinion that the grantees in the sheriff’s deed took the title to hold only as in mortgage; and that Peter W. Barkelew, since deceased, was entitled to redeem, and made the offer to redeem, and the tender of the money in time.

It will be referred to a Master to ascertain what parts of the property have been sold, aud for what prices, and what parts of it still remain in the grantees named in the sheriff’s deed, &c., &c.

Order accordingly.


author: The Chancellor.

text:
    Catharine Valentine v. Oscar J. Valentine.
    In September, 1846, on a bill by a wife, who had left the husband’s house and takes with her their only child, a son of fifteen months old, an order was made that tho husband pay her 82.50 a week for or towards the support of said child and herself while she kept the child, until tho further order of the Court.
    In March, 1850, on the application of the husband, an order was made that the child be delivered to the custody and care of the husband.
    In this case, which, under the names of Ballentino against Ballentine, several points have been heretofore ruled, (vide 1 Hal. Ch. Rep. 471, 519,) an order was made, on the 22d September, 184G, as follows : “ In consideration that the child of tho parties mentioned in the bill is of young and tender years, and requires the care and nursing of the mother, and that thereby tho mother is less able to provide for her own support and maintenance, it is ordered that the defendant, Oscar J. Valentine, do pay to the-said Catharine Valentine the sum of two dollars and fifty cents per week for or towards the support of said child and herself, while she keeps the child, until the further of the Court; such, weekly payment to commence from the first day of June last.”
    At the date of the above order, the child, being then about fifteen months old, was in the family of Philip Y. Bedding, in Orange, in the county of Essex; having been placed there by the complainant, Catharine Valentine, to be boarded in the said family, at $1 per week; the board to be paid by the complainant.

      Some time after the date of the said order, (it would seem from the evidence to be at least three months,) Valentine, the defendant, went to the residence of Mr. Redding, having heard that the child was there, and saw the child there. Mrs. Redding testifies, that Valentine then told her that he thought $ 1.50 per week was little enough for the child’s board; and that the child’s mother told her the same. From that time $1.50 per week was charged.
    This witness further testifies, that Valentine told her that the board of the child was worth $1.50 per week; and that he was willing to give it; and if that was not enough, he was willing to give more; and said that he was able to bring it up a gentleman.
    That the complainant visited the child frequently; for the last few months very often, and for the last few weeks certainly twice a week. At first she came about once a month to see it; that sometimes she stayed a night, or a day and night, or half a day, and sometimes longer; that once she stayed five days. That the complainant, when she left the child with her, Mrs. Redding, in September, 1846, was pursuing the business of nursing; she don’t know long she pursued that business. After that, she boarded with a sister of witness, in Newark, and took in sewing from the shops. That witness was in the habit of taking the child with her, when she went to her sister’s, in Newark; at which times sho sent for the complainant to come and see the child, and she did so ; and paid witness’s fare for coming down — sixpence each way. When Mrs. Valentine left the child with them, she said they must look to her for the pay. That Mrs. Valentine boarded at witness’s sister’s, in Newark, when not out nursing; sho went out nursing when she was called for, and boarded at witness’s sister’s at intervals, when not out, and took in sewing to pay her board. Witness went to her sister’s several times when Mrs. Valentine was out nursing. Mrs. Valentine paid for the clothing of the child: she made some, and hired witness to make some, and paid her.

      Philip F. Redding testifies, that the child was left at his house by Mrs. Valentine °, that he charged at first |1 per week for his board (it was a son,) for the first three months, and after that $1.50; that he added the fifty cents according to orders from Mr. Valentine. He charged the board to Mrs. Valentino, and looked to her for payment. That she has paid him, for the board of the child, $68.06. That there is a Doctor’s bill which he has not charged, as he did not know how much it is. He says that, at the first interview he had with Mr. Valentine, he, Mr. Valentine, was very glad to see the child ; he came into the shop where witness was. He asked witness what board she (Mrs. Valentine) paid. Witness told him $1. He said that was not enough; that twelve shillings was little enough; said he would see witness have every cent; but witness must not let her take the child away. Witness says, that Mrs. Valentine took the child away about the 10th June, 1847. Witness went to Mr. Valentine and told him when she took the child away and did not return it. He said he could not pay witness, because he would have to pay .it over again. Mr. Valentine said, if she took the child away he could not prevent it. Witness sued Mr. Valentine for the board of the child. Mrs. Valentine paid him the $68 at different times. She lias receipts for it.
    The defendant paid to the complainant, or her solicitor, the weekly allow7ance up to March 8, 1847 ; and has neglected to make any payment since. The child has been in the custody of the complainant since she took him from Mr. Redding’s family.
    Cross motions were now made; one, on the part of the complainant, for an attachment against the defendant for not paying the weekly allowance ordered by the Court to be paid by him, (an order to show cause why an attachment should not issue, having been previously made;) another, on the part of the defendant, to vacate the said order for the payment of the weekly allowance ; and for an order that the child be delivered to the defendant, and that the defendant have the care and custody of the child.

      L, S. Goble and Wm. Pennington for the complainant.

      Theo. Runyon and A. Whitehead for the defendant.
   The Chancellor.

An order will be made that the defendant pay to the complainant the arrears of the weekly allowance; and that, thereupon, the child be delivered to the defendant, to ° have the custody and care of him.

Order accordingly.


text:
    Edo F. Merseles v. Elizabeth Vreeland and others.
    On the 20th of June, 1819, J. M. Y. gave to A. A. Y. a mortgage on thirty-five aerea of land to secure the payment of his bond for §777.19. In 1809, J. M. V. died, leaving a widow and children, and leaving a will, giving to his widow the use of all his estate, real and personal, during her life or widowhood; and to the children to be divided among them when the youngest should attain twenty-one, and after the widow should have done with the use of it; and, if his personal estate be not sufficient to pay his debts, charging his real estate therewith, and ordering so much thereof to be sold, from time to time, by the executors of his will, as would meet the payment of the debts; and appointing the widow executrix. The widow proved the will, and entered on the administration of the estate. In 1840, on affidavit that the widow had become deranged, administration with the will annexed was granted to one of the children and a brother of the testator; and, on their application, the Orphans’ Court ordered the sale of the real estate to pay the debts; and the administrators, thereupon, exposed to sale a part of the land covered by the said mortgage, which was struck off to E. P. M., for $1114.38, on the 8th of February, 1842, and the administrators executed to him a deed therefor, and he entered into possession thereof. E. P. II. paid to the administrators the difference between the amount due on the mortgage and the amount of his said bid; and in 1844, being still in possession, he paid to the mortgagee the amount due on the mortgage, and had the mortgage cancelled of record, in November, 1844. In 1845, the widow brought ejectment against E. P. M., the complainant, for the lands so bought by him at the administrators’ sale; and recovered, on tire ground that the Surrogate had no right to grant such administration, and obtained possession of th® lands. The complainant, E. P. M., then obtained from the mortgagee an assignment of the mortgage. In 1849, the widow brought an action against E. P. H. for the mesne profits. And thereupon, E. P. M. filed his bill, praying, that the mortgage be decreed to be good; and that the widow and children he decreed to pay it; or be foreclosed &c.; or that the mortgaged lands bo sold to pay it; and that the money paid by E. P. M,, the complainant, on the said sale, over and above the amount due on the mortgage, may , be offset against the claim of the widow for the rents and profits; and for an injunction staying the suit for mesne profits.
    The injunction was allowed.
    On answer and argument, the injunction was dissolved.

      Meld: Thai, as between the mortgagee and the widow, she was entitled to hold and enjoy the lands, and the rents and profits thereof until he could get possession in due course.

      ¡semble: That as between the widow and children, in such a case, the widow ought to keep down the interest, out of the rents and profits, or proceed promptly to a sale, to pay the mortgage debt.
    The bill, filed June 20th, 1849, states, that on the 4th of July, 1835, John M. Vreeland gaye his bond, of that date, to Aaron A. Van Honton, conditioned for the payment of $777.19, in one year, with interest; and, to secure the payment of said bond, the said J. M. Vreeland executed to said Aaron a mortgage, of the same date, on thirty-five acres of land (described in the bill.)
    That, in 1840, John M. Vreeland died, leaving a will, and leaving his widow, Elizabeth, and five children, viz., Michael, Caspar, Cornelius, John, and Ann Eliza Vreeland.
    That the will directs that all his just debts be paid; gives to his said widow the use of all his estate, both real and personal, during her life or widowhood; gives to his said five children the whole of his estate, to be equally divided amoDg them, when the youngest shall, attain twenty-one, and after his said widow shall have done with the use of it. Providing that, in case his personal estate should not be sufficient to pay his debts, then he charges his real estate with the same, and orders so much thereof, from time to time, to be sold, by his executors, as will meet the payment of the same. That the said Elizabeth, the widow, and Nicholas It. Terhune, were appointed executors of the will.
    That Terhune renounced the executorship, and that said Elizabeth proved the will, and took upon herself &c., September 21st, 1839.
    That said Elizabeth administered part of the estate, and the personal estate being insufficient to pay the debts, and, among the rest, the debt secured by the said bond and mortgage, it became necessary to take some steps to procure a sale of the real estate, or some part thereof, to pay the debts; and the said Elizabeth, the said executrix, having become deranged in her mind, and unfit to manage the said estate, the family thought it advisable that administrators with the will annexed should be appointed, so as to have the estate settled. That Michael and Caspar, two of said children, being of age, and all the rest under age, application was made to the Surrogate of Passaic to grant such administration. That on affidavit made of the situation of said Elizabeth, the Surrogate, on the 20th of May, 1840, granted administration, with the will annexed, to Michael Vreeland, one of said children, and Cornelius M. Vreeland, the brother of the said John M. Vreeland, the said Caspar declining to join in said administration on account of being involved in bis circumstances.
    That the said Michael and Cornelius, administrators with the will annexed, proceeded in duo course of law to administer the estate; and that, having filed their accounts in the Orphan’s Court of Passaic, and there being a deficiency of personal estate, the said Court ordered a sale of the real estate of said J. M. Vreeland to pay his debts. That thereupon the said administrators sot up certain parts of the real estate of said J. M. Vreeland, deceased, for sale at public auction according to law; that is to say, a lot, &c., (describing it,) containing 10 29-100 acres ; and a lot &c., (describing it,) containing 8 11-100 acres, and which was a part of the land described in said mortgage to A. AlVan Houten; and that, this complainant bidding for the same $1114.88, and no person bidding more, the same was struck off to him for that sum, on the 8th of February, 1842 ; and tlio said administrators executed and delivered to him a deed for the said lots; and the complainant thereupon entered on said lands, and continued to occupy the same until ho 'was removed as in the bill after stated.
    That said Elizabeth was present at said sale, and did not forbid the same, or make any statement that the said administrators had no right to sell, or that she intended to dispute the title of the purchasers at the sale; nor did she do any act by which the complainant could be put upon Ms guard, or that should lead the complainant to doubt that a good title could be given by the said administrators and the complainant believed at the time that he purchased a good title.
    That, in November, 1844, while complainant was in possession of said property, and no objection being raised to the said sale, by the said Elizabeth or any other person, and after the complainant had paid to the said administrators the difference between the amount duo to said A. A. Van Houten on his said bond and mortgage and the amount of the complainant’s said bid, the complainant went to said A. A. Van Houten and paid him the amount duo on his said mortgage, and took the same up, and tore off the seals from said bond and mortgage, and took said mortgage to iho Clerk’s office and had it cancelled of record, on the 18 th of November, 1844.

      That, on the 4th of May, 1842, when said deed was delivered to complainant, bjr said administrators, there was due said A. A. Van Houten on the said bond and mortgage $T45.46; and that the complainant paid the balance of said purchase money to the said administrators, amounting to $868.92; and that the whole of this sum was applied by said administrators to pay the debts of said J. M. Vreeland, deceased,except $100, which, as complainant is informed and believes, was applied by said administrators, or one of them, to pay the funeral expenses of said Michael Vreeland, who died; and the balance, being $61, was paid by said administrators, or one of them, as follows : $15-25 to the said widow, Elizabeth, and the same sum to Cornelius, John and Ann Eliza, to purchase clothing for them.
    That said Elizabeth gave no notice of her intention to dispute complainant’s title until after complainant had canceled said mortgage on record, when she caused a search to be made of the records of mortgages in the Clerk’s office; and finding the same there canceled, and thinking that thereby the debt was extinguished, she brought ejectment against the complainant, to the term of May, 1845, for the recovery of the lands so purchased by the complainant; which suit was pending until April term, 1849, when the Supreme Court decided in favor of said Elizabeth, on the ground, as complainant is informed, that the Surrogate had no right to grant such administration. That said Elizabeth, immediately thereafter, had the costs in said suit taxed, and a writ of possession issued, and obtained the possession of said lands; and the complainant has paid the said costs.
    That said A. A. Van Houten has lately executed and delivered to the complainant an assignment of the said mortgage; said assignment purporting to bear date November 16th, 1844.
    That, after the death of said J. M. Vreeland, the said Elizabeth accepted the said devises and bequests in said will given to her, in lieu of dower; and that, by such acceptance, all the dower and right of dower of said Elizabeth in the said lands described in said mortgage has been lost; and the complainant is entitled to have the same sold free and clear of the dower of said Elizabeth.
    That Michael and Caspar, sons of said J. M. Vreeland, haye died, unmarried, without issue and intestate; and thereby all their right &c. has descended to the said Cornelius, John and Arm Eliza Vreeland, who are all of the age of twenty-one. That said Michael and Caspar, in their lifetime, did not convey any of the land described in said mortgage, except that they, together with one Cornelius M. Vreeland, as the complainant has heard and believes, conveyed their interest in a part of the lands described in said mortgage, to one Daniel A. Vreeland, on the 23d of May, 1840, containing 7 4-100 acres.
    That the right of said Elizabeth and of her children under said will in and to the real estate was by said will expressly charged with the payment of the debts of said J. M. Vreeland; and that the personal estate of J. M'. Vreeland was wholly insufficient to pay Ids debts.
    That said Elizabeth has lately commenced an action in the Circuit Court of Passaic, of trespass, returnable June term, 1849, for the recovery of the mesne profits of the land so purchased by complainant, (recovered in said ejectment,) and has laid her damages at $1800. And the complainant charges, that the said $368.92, paid by him upon said sale, over and above the amount duo on said mortgage at the time of said sale, and appropriated to pay the debts of said J. M. Vreeland, and to the support of his children, and paid to said Elizabeth as before stated, with the interest thereon, ought to be applied as an offset to the use of said land by the complainant, and that an account should be taken of the same; and that, if the rents and profits should amount to moro than this sum with interest, then that the complainant, as mortgagee in possession, should be charged with such excess, and the same should bo deducted from the interest due and to grow duo on said mortgage.
    That the money secured by said bond and mortgage has not been paid by said Elizabeth or by any other person; but that tho same, together with the said $369.92 so paid by complainant, is now duo and owing to the complainant, with large arrears of interest.
    That, said bond and mortgage not having been paid, the complainant’s estate in the mortgaged premises has become absolute, and the complainant entitled to have the equity of redemption foreclosed, or the said mortgaged premises sold, &c.
    That said Elizabeth having stood by and seen said land sold, for the payment of the debts of said J. M. Vreeland without forbidding said sale, and permitting the complainant to purchase and quietly to enjoy the possession of said land until the complainant canceled said mortgage, was a fraud on the complainant ; and complainant charges, that by reason thereof, the said bond and mortgage ought in this Court to be held binding, and the money paid by complainant upon the said sale over and above the amount due on said mortgage ought to be offset against the claim for rents and profits of said land.
    Complainant states, that while he so had possession of said land, he greatly improved the same ; and claims that such improvements ought to be allowed to him against the said rents and profits.
    The bill prays that the said bond and mortgage may be decreed to be good, and the cancellation thereof be considered null; and that said Elizabeth Vreeland, Cornelius Vreeland, John Vreeland, Ann Eliza Vreeland, and Daniel A. Vreeland, or one of them, be decreed to pay to the complainant the amount of said mortgage, with interest and the complainant’s costs, both at law and in equity; or that they may be foreclosed' of and from all equity of redemption &c., and be decreed to deliver up possession of said mortgaged premises to the complainant; or that said mortgaged premises may be decreed to be sold, to pay the complainant his said debt and interest; and that it may be decreed that the money paid by the complainant on the said sale, over and above the amount due on said mortgage, shall be paid to the complainant by the defendants, or one of them, or that the same shall be offset against the claim of said Elizabeth Vreeland for the rents and profits of said property. And that said Elizabeth may be injoined from further proceeding on said suit for mesne profits; and for such other and further relief &e.
    Elizabeth Vreeland, in her own right and as executrix of the will of J. M. Vreeland, deceased, Cornelius Vreeland, John Vreeland, Ann Eliza Vreeland, and Daniel A. Vreeland are made defendants.

      On the reading of tins bill an injunction restraining said suit for mesne profits Ayas granted.
    The joint and several ansAver of Elizabeth Vreeland, in her own right and as executrix aforesaid, Cornelius Vreeland, John Vreeland, and Ann Eliza Vreeland, Avas put in on the 19th of December, 1849.
    They admit the bond and mortgage from J. M. Vreeland, deceased, to A. A. Van Houten, as stated in this bill; and the death, and the will of J. M. Vreeland as stated in the bill; the renunciation of Terhune, one of the executors named in said will, and the probate thereof by the said Elizabeth Vreeland.
    The defendant Elizabeth Vreeland, ansAvering for herself, the other defendants saying they believe it to he true, saith, that after proving the will she began to administer the estate, and took possession of the real and personal estate, the use of which was bequeathed to her during’1 her life or widowhood, she being still the AvidoAV of her testator; that she filed an inventory of tho goods and chattels, September 20th, 1839, which inventory amounted to $1248.92 1-2, including debts due said estate, amounting to $84T.8G, as by said inventory filed &c., appears; that she continued to administer said estate, paying debts to diArcrs creditors of the estate; and to A. A. Van Houten §98.20 on the bond and mortgage mentioned in the bill; until about May 20fch, 1840, when an application Avas made to the Surrogate of Passaic to grant admistration with the will annexed to Michael Vreeland, one of the sons of said testator, and Cornelius M. Vreeland, the brother of the testator, on tho ground that the defendant Elizabeth had “ from mental incapacity become unable to attend to the management and settlement of tho said estate of the testator;” and that thereupon the Surrogate of Passaic did, unlaAvfully as she has been advised, grant administration Avith tho will of said testator annexed to the said Michael and Cornelius ; who took upon themselves &c<3 and unlawfully deprived her of the administration thereof, and took from her all the control and management of the same, to suit their own private views and purposes.
    She denies that when said administration wag granted. Of at any other time, she was deranged in her mind and unfit to manage said estate; and avers that she was competent so to do., and that the whole proceedings in regard to changing the administration of said estate were effected without her concurrence and consent, and against her will and wish; and that no notice what-' ever was given to her of the said application; and that everything in relation thereto was done without her knowledge.
    The defendants admit that, when said administration was granted to said Michael and Cornelius M., two of the children of the said testator, viz., Michael and Caspar, were of age, and that all the rest, viz., Cornelius, John and Ann Eliza, were under age; but whether the said Caspar declined &c., (as stated in the bill,) or whether the family, as stated in the bill, thought it advisable that administration with the will annexed should be granted, the defendants know not and cannot form any belief, nor of whom that family consisted.
    The defendants admit that said Michael and Cornelius M., administrators as aforesaid, proceeded to administer said estate; but they deny that it was done in due course of law; and that they filed an account in the Orphans’ Court of Passaic; and that said Court ordered a sale of the real estate of said J. M. Vreeland, deceased, to pay his debts; but they aver that there was a sufficiency of his personal estate to pay all his debts, independent of the debt due said A. A. Van Houten, secured by said bond and mortgage, and which the said A. A. Van Houten was willing should lay, he not being in want of the money, and saying so to the said Elizabeth, executrix as aforesaid; and that he did not request of the said administrators the payment of the same, but that they called upon him and obtained from him a statement of the amount due on the same.
    And the said Elizabeth, answering for herself, the other defendants saying they believe it to be true, saith, that she would have been able to pay all the debts due from the estate of said testator from his personal estate in her hands as executrix, except the said mortgage debt to A. A. Van Houten; and that she fully intended so to do, but was prevented from so doing by the granting of administration to skid Michael and Cornelius M., as aforesaid; who, thereupon, took the administration of the estate out of her hands, and proceeded, unlawfully, to administer the same.
    The defendants admit that the Orphans’ Court of Passaic ordered a sale of the real estate of said testator, to pay his debts, but unlawfully, as they are adyised; and that, thereupon, the said administrators with the will annexed sot up certain parts of the real estate for sale at public auction, which are particularly described in the bill; and ihat the same was struck off'to the complainant for the sum mentioned in the bill; and that said administrators executed to the complainant a deed for the same; and that the complainant thereupon entered on the same, and continued to occupy the same for a long space of time, and until he was evicted thereupon by due course of ¡aw, as in the answer after stated.
    The said Elizabeth, answering for herself, the other defendants saying they believe it to be true, saith, that sho was in and about her house when the persons assembled to attend said sale and before the sale commenced; but that she was not present when said land was put up for sale or when it was struck off to the complainant; and sho avers that she was opposed to said sale, and objected to it, and did not concur in it, or give her assent thereto, although she might not publicly have prohibited the said sale nor made a statement that said administrators had no right to sell or that she intended to dispute the title of the purchasers at the sale. But the defendants submit, that said administrators had no legal right to sell said property, and that all their proceedings in said premises were unlawful and void.
    The defendants admit that after said sale, hut whether before or after he had taken possession of the land sold the defendants know not, the complainant went to said A. A. Van Houten and paid him the amount duo on his said mortgage, and tore off the seals from the bond and mortgage, and took the mortgage to the Clerk’s office and had it canceled of record, on the day stated in the bill. And they submit, that the cancellation of said mortgage of record is an absolute bar and discharge thereof; and that the complainant is not entitled to come into this Court and ask any decree thereon.
    The defendants admit that, on the day stated in the bill? there was due to said A. A. Van Houten, on his said bond and mortgage, $745.46, and that the complainant paid the balance of the purchase money to the said administrators, amounting to $368.92; but how the said administrators applied the same these defendants are ignorant, except that they paid to these defendants, or for their benefit, $15.25 each, and have, as the defendants are informed, paid off some of the debts of said testator ; but to what extent the defendants cannot say.
    They admit the ejectment by said Elizabeth, and that the Supreme Court decided in her favor, on the ground, as they are advised and believe, that the Surrogate had no right to grant such letters of administration. They admit the writ of possession, and that said Elizabeth obtained possession; and that complainant paid the costs of the ejectment.
    1 They deny that the complainant, while he so had possession, made any improvements, except such as were necessary for the cultivation of the land in the ordinary course of husbandry.
    They admit that A. A. Van Houten, lately, and long after the cancellation of the mortgage, and not until after said Elizabeth had obtained possession of the said lands, as the defendants aver, executed to the complainant his deed of assignment, purporting to bear date November 16th, 1844, by which he assigned said bond and mortgage to the complainant; but they submit that the said assignment is of no effect or avail, either at law or in equity.
    They admit that, after the death of said J. M. Vreoland, the said Elizabeth accepted the devises and bequests to her in said will; but whether by such acceptance all the dower and right of dower of said Elizabeth in and to said land described in said mortgage has been lost, the said Elizabeth submits, if necessary, to the decision of this Court.
    They admit the death of Michael and Caspar, and the descent, as stated in bill ; and that the surviving children are of age.
    They admit that said Michael and Caspar, in their lifetime, did not convey any of the land described in said mortgage, except that they, together with said Cornelius M. Vreeland, conveyed their interest in apart of the lands described in said mortgage to one Daniel A. Vreeland, on or about May 2Sd, 1840, containing 7 4-100 acres.
    They admit that the real estate was by said will charged with the payment of the debts of said J. M. Vreeland; but only in case his personal estate should not be sufficient to pay the same; and that he ordered, by his said will, so much thereof from time to time to bo sold by his said executors as would meet the payment of the same. And they aver that there was a sufficiency of the personal estate to pay all the debts except the said mortgage debt to A. A. Van Houton, and that said A. A. Van Houten was willing that the same should lie; not wanting the principal thereof.
    She admits the action for mesne profits brought by said Elizabeth; but the said Elizabeth submits, that the said $368.92, or any other sum paid by complainant upon said pretended sale, over and above the amount due on said mortgage at any time thereof, and appropriated, as is alleged in said bill, to pay the debts of said J. M. Vreeland, and to the support of his children and of said Elizabeth, as above stated, ought not to be applied as an offset to the use of said land so occupied by complainant; and that no allowance of the said rents and profits of said land shonld he made to the complainant therefor, he having paid the said $368.92 to the administrators in his own wrong, and without the consent, concurrence or knowledge of the said Elizabeth.
    The defendants submit, that the complainant is not entitled to have the equity of redemption in said mortgaged premises foreclosed, nor to have the promises sold for the payment of the money mentioned in said mortgage, or any part thereof.
    And the said Elizabeth submits, that the injunction granted should be dissolved.
    On this answer a motion was made to dissolve the injunction.

      Hopper and Zabriskie in support of the motion.
    They cited 2 John. Ch. 60; Saxton’s Ch. 205; 6 John. Ch. 170; 1 Green’s Ch. 117, 125, 145; 1 Peters, 13, 17; 1 Story’s Eq. p. 158; Ib. see. 187, note; 14 Pick. 98; 2 Kent’s Com. 491;
      Saxt Ch. 100, 111; 2 Green’s Ch. 513; 3 Hill’s Rep. 219; 2 Greenl. Evid. 337; 4 Cowen, 168; Zab. 643.

      A. iS. Pennington contra.
    He cited Drury on Inj. 8, 35.
   The Chancellor.

If, under the circumstances of this case,

the mortgage should be considered as still existing, in favor of Edo P. Merselis, the complainant, (which is the main question to be decided on the hearing of the cause on the merits, after the proofs shall be taken), and I am not now sufficiently clear that it should not be so considered to authorize my acting, in reference to the question now before me, on the assumption that it cannot be so considered, one of two courses must be taken, in considering whether the injunction should be dissolved. Assuming, for the present, and for the purposes of this motion, that the mortgage may finally be held to be still subsisting, in favor of the complainant, one course is to dissolve the injunction and permit the widow to recover, from Edo P. Merselis, her judgment for the rents and profits, and to collect them from him by execution, and thus leave Merselisas, holder of the mortgage, to recover a decree for the principal and all the interest that may have accrued on the mortgage, and to sell so much of the mortgaged premises as will be required to pay the amount of such principal and interest. The other course is, to consider that the widow, she being also executrix, should, under the will, pay the interest on the mortgage debt out of the rents and profits of the lands, so long as she holds them and takes rents and profits, and does not subject them or any part of them to sale for the payment of the mortgage debt; it being admitted that the personal estate was not sufficient, after paying the other debts, to pay the mortgage debt or any part of it.

It appears to me, that when a testator gives the use of all his estate, real and personal, to his widow during her life and widowhood, and, in case his personal estate be not sufficient to pay his debts, charges his real estate with the same, and orders so'much thereof to be sold, from time to time, by his executors, as will meet the payment of the same, and appoints his widow the executrix of tho will; and there is a mortgage debt which, or any part of which, by the admission of tho widow, “the personal estate is net sufficient to pay; and tho personal estate has been exhausted in the payment of other debts ; in such case it seems to me to be the duty of the widow and executrix, either to keep down the interest of tho mortgage debt out of tho rents and profits of the real estate, or to proceed promptly to the sale of so much of the real estate as will be sufficient to pay the mortgage debt. It would do great injustice to the remainder men to permit her to delay the sale of sufficient land to pay the mortgage debt as long as she could induce the mortgagee, in view of the abundant landed security ho might have, to defer foreclosing liis mortgage; she, in the mean time, reaping and appropriating to her own use the whole of the rents and profits, and permitting tho interest to accumulate aga.inst the remainder men, tho children of the testator in this case, to an amount perhaps that would swallow up the whole of tlio mortgaged lands at her death.

As between the widow and the children, in this case, on a bill filed by the children, the widow ought to keep down the interest out of the rents and profits of the land, or proceed promptly to a sale.

But in this case I do not perceive that the Court can proceed on this ground, or with a view to such relief. The children, here, are parties defendants with tho widow, and the bill prays for no such relief. The complainant, by the shape of his bill, is willing to stand on tho ground that the mortgaged premises are sufficient to pay the amount of principal and interest that will he due on the mortgage, at the time when the same may be sold under the mortgage and a decree for sale founded thereon; and it does not appear that the children will ever seek any such relief against the widow as that she pay the interest out of the rents and profits.

In reference to the matter of interest on tho mortgage debt, therefore, and to the idea of setting off the interest accrued on the mortgage against the rents and profits sought to be recovered from Edo P. Merselis, in the action for mesno profits which wag injoined, for and during the time he occupied tho lands, there does not seem to be good reason for continuing the injunction restraining that action. As between the mortgagee and the widow, she was entitled to hold and enjoy the lands, and the rents and profits thereof, until he could get possession of the lands in due course. And if, as between the widow and the mortgagee, or Merselis, (he is to stand in the place of the mortgagee,) Merselis considers, as it appears by his bill he does, and as I suppose is true, that the mortgaged lands are abundantly sufficient to pay the mortgageand interest; then there seems to be no good reason why the widow should not be permitted to go on and recover the rents and profits received by Merselis, while he was in possession of the lands under the deed which the Supreme Court have declared to have been void. The Court before which the action for mesne profits will be tried will protect him in all his rights as to the amount to be recovered against him.

Injunction dissolved.


text:
    Isaac Troth v. Abel N. Troth and others.
    The pleadings raised the question of the constitutionality of an act of the Legislature incorporating a company, and authorizing them to construct a turnpike road on a public highway, and charge lolls, provided, that, before the company shall construct the turnpike road along the said highway, they shall pay to the owners of the lands over which the said highway passes all damages they will sustain by the construe* ilon of said turnpike road: and provided, that the said act shall not take effect until the public highway be vacated as a public highway, according to law.
    The Chancellor said it was a question more proper for a court of law; and, tinder the circumstances of the case, left tlio complainant to his remedy at law.
    On the 15th of November, 1849, Isaac Troth exhibited his bill, stating that he is seized of 96 acres of land, in tho township of Delaware, in tho county of Camden, of which he and those under whom he claims title have been in possession for one hundred and fifty years. That while said lands wore owned by Benjamin Morgan, under whom ho derives title, a public highway, called the great highway from Burlington to Salem, was laid through the farm then owned by said Morgan; which highway has been kept open and used as a public highway from that timo to the present. That said farm was, subsequently, either sold or divided, so that the portion of it lying on one side of said highway, and extending to the middle thereof, became the property of ono proprietor, and the other part, extending to the middle of the highway, became tho property of another proprietor 5 and the part therof now owned by the complainant is bounded on the middle of said highway for about one quarter of a mile. That there is on the said highway, and in front of complainant’s land, and in part erected thereon,,in the said highway, a stone bridge, which is necessasy for the use of the said highway.
    That, on the 28th of February, 1849, the Legislature of New Jersey passed an act entitled “ An Act to incorporate the Camden, Ellisburgh & Marlton Turnpike Company.” That by the 2d section of said act, it was enacted, " that the capital stock of said Company should be #80,000, with liberty to increase it to $60,000, and shall be divided into shares of $25 each; and that, when six hundred shares shall be subscribed for, the persons holding the same shall be, and they are hereby incorporated, by the name &c.; and by that name shall have, enjoy and exercise all the rights, powers and privileges appertaining to corporate bodies and necessary to carry the objects of this act into effect. That by the 11th section it is enacted, that it shall be lawful for the Company to construct a turnpike road from Marlton in the county of Burlington, through Ellisburgh, in the county of Camden, to the truss bridge over Cooper’s creek in the county of Camden; which turnpike road shall be constructed and made along the main public highway leading from Marlton aforesaid, and through Ellisburgh aforesaid, to the said truss bridge; and it shall be lawful for the said Company, by their officers, agents, &c., to enter, from time to time and at all times, upon all lands, for the purpose of searching for stone, gravel, sand, clay or other materials for the construction or use of said road; Provided, that before the said Company shall construct the said turnpike road along the said highway, they shall pay, to the respective owners of the lands over which the said highway now passes, all damages which the said owners will sustain by reason of the construction of said turnpike road. (A mode is provided for ascertaining these damages.)
    That by the 21st section it is enacted, that this act shall not take effect until the public highway upon which the said turnpike is authorized to be located and made is vacated as a public highway, according to law.
    The bill then states, that Thomas Evans, John McCurdy and others, ten or more freeholders of Burlington and Camden, applied to the Supreme Court in April, 1849, for the appointment of surveyors to view and vacate the said public highway, from the truss bridge to the junction thereof with the public highway leading from Marlton to the green tree tavern, in the township of Gresham. That the Supreme Court appointed surveyors of the said two counties to view said road and certify whether the same was necessary.- That, in the term of July, 1849, the said surveyors reported to the Supreme Court that the said road was ■unnecessary. That, at the same term, Ralph V. M. Cooper filed a caveat against the recording of the return of said surveyors ; and thereupon the said Court, at the same term, appointed three freeholders ox each of said counties (naming the freeholders) to view and certify as regards said road so vacated. That at the Sptember term 1849 of the Supremo Court, the said freeholders certified to the said Court that the vacating of the said road was necessary and useful; and the Supremo Court caused their return to ho recorded.
    The hill states that, before the said public highway was vacated, the commissioners under the said act of incorporation opened books for subscription to the stock of said Turnpike Company and, on the 21st of May, 1849, the stockholders proceeded to elect -directors. That, notwithstanding the said directors were elected previous to the vacating of said highway, yet they have employed an engineer and laborers, and are proceeding to form a turnpike road on the ground formerly occupied by said highway, and have caused their engineer and laborers to commence working on the land of Jacob Troth, in the formation of a turnpike road, on the ground formally occupied by said publie highway so vacated as aforesaid.
    That Charles Knight, one of the directors of said Turnpike Company, told the complainant, on or about November 6th, 1849, that they would show the complainant how soon they would go to work on complainant’s land, when they got commissioners appointed. That said Company, by their workmen, were at work on the land of said Jacob Troth, at a distance of only half a mile from complainant’s land, on the 8th of November, 1849; and that, according to the progress they have already made, they •would reach the complainant’s land in three or four days;.and that, according to the grade they have adopted, they will have to excavate the ground of complainant' in front of his house, and for a great distance through his land, to the depth of three feet, and will render the approach to his house very difficult, and in some places almost inaccessible with wagons and camagos, and will do serious injury to the premises of the complainant.

      That there is, on that part of the land of complainant formerly occupied by said highway vacated as aforesaid, a stone bridge which formed a part of the said highway, and was built, in part, on the land of complainant. And that, on the 8th of November, 1849, some masons came to his house and inquired if they could obtain board there while they would be working at the alteration of said bridge; and the complainant thereupon forbade them from disturbing the soil of the complainant and from altering said bridge; and, further, the complainant posted up, in conspicuous places, written notices forbidding the said Company, their agents, &c. from disturbing or excavating his soil, and from altering or interfering with said bridge.
    He charges that, notwithstanding said notice, the Company, by their agents, intend to enter upon the complainant’s land, and to excavate thereon, and to disturb his soil, and to alter the said bridge, and to convert his land into a turnpike road for the use of said Company.
    That he has been informed and believes, that the said Company intend to erect gates across said turnpike road, which they are now constructing on the land formerly occupied by the said public highway, so vacated as aforesaid, and to exact tolls from persons passing through said gates, according to the rates &c. ,* and that one of said gates is to be erected between the complainant’s land and Cooper’s bridge, so as to compel him to pay tolls for passing over his own land.
    That there were twelve bridges ort^ that part of said public highway which lay in the county of Camden, at the time the said highway was vacated as aforesaid. That the Board of Chosen Freeholders of the county of Camden, on the 19th March, 1849, passed a resolution agreeing to give to such turnpike companies within said county as should go into operation before January 1, 1851, all the county bridges, and material therein contained, which may be upon such roads as shall be turnpiked, without any charge therefor: Provided that, if said companies or any of them, shall not go into operation, or shall not continue in operation, then the county bridges upon such road so failing to go into operation shall revert to and become the property of the county; under which resolution tho said Turnpike Company pretend to own or set up a claim to tho said bridges.
    That that part of said public highway, vacated as aforesaid, which lies between the mouth of the Ellisburgh road and Cooper’s creek, was a part of the great road leading from Perth Am-boy to Salem, which was laid out more than one hundred and fifty years ago, and which, by the 36th section of the act entitled ci An act concerning roads,” is declared to be subject to the same laws and regulations to which other highways in this State are subject; and that the gate which the said Company intend to erect between complainant’s land and Cooper’s bridge will be placed on that part of said land which was a part of the great road from Perth Amboy to Salem; and by means of said gate tho said Company will compel the complainant and all others &c. to pay toll.
    Among the pretences charged are the following : a And sometimes tho said confederates pretend, that the soil and land on which is tho said main public highway from tho village of Marl-ton, through Ellisburgh, to the truss bridge belonged to the public, and that the Legislature of New Jersey had authority, and might by law give the said soil and land, after the public highway was vacated, to a private corporation for the purpose of making a turnpike road, and authorizing said corporation to take tolls thereon; tho contrary whereof the complainant charges to be true; and ho charges, substantially, that a highway is but an easement: and that, when it is vacated, the owner of the land oyer which it ran holds the land discharged from the easement.
    ' That sometimes the confederates pretend, that tho Legislature of New Jersey have a right to tako private property, and to authorize a corporation to take it, for their private use, without the consent of the proprietor: the contrary whereof &o.
    And sometimes tho said confederates protend, that the said turnpike road which the said Turnpike Company are authorized to make is a public highway: the contrary whereof &c.
    And sometimes the said confederates pretend, that the authorizing tho said Turnpike Company to tako tho land of tho complainant for the purpose of making a turnpike road thereon, according to the provisions and restrictions of the said act to incorporate said Company, is taking the same for public and not for private use, and that the law authorizing them so to do is legal and constitutional: the contrary whereof &c.
    The bill prays, that the individuals therein named as defendants, and the said Company be restrained by injunction from constructing a turnpike road on the lands of the complainant, and from digging up and excavating his soil, and from altering or removing any of the said bridges, and from removing any of the materials of the same, and from erecting gates on the said road; and that the complainant may be quieted in his title to that part of his lands which was lately occupied by the said public highway which has been vacated; and that the defendants may be decreed to account to the complainant for all damages which they may have committed to the complainant’s property; and' for such other and further relief, &c.
    The injunction prayed was allowed, by Master Ewing.
    The defendants put in their joint and several answer, stating, (so far as it is necessary to be considered for the purpose of deciding the present motion,) that the stone bridge mentioned in the bill was erected by the Board of Chosen Freeholders of Gloucester, before the creation of Camden county; and that it is now in the county of Camden; that only about one-fourth of it lies within the boundaries of the complainant’s farm; and that the whole of said bridge is in and across the said highway, and makes a necessary part of it.
    They admit the act of incorporation as stated in the bill.
    They admit that the subscription books were opened, and that more than 600 shares were subscribed for; and that directors of said Turnpike Company were elected, and the Company organized before the said highway was vacated.
    They say that, after the vacating of the said road, they employed an engineer and laborers, and are proceeding to form a turnpike road on and along the said public highway as it was before being vacated as aforesaid, and are working on land of one Jacob Troth, at the distance of about one mile from the complainant’s land; but they say that their operations on the land of said Jacob Troth are with Ms consent; and that it is not now and never has been the intention of the Company, or of the directors thereof, to enter upon the land of the complainant to construct said turnpike road without his consent or until after lie shall be paid all damages which he will sustain by reason of the construction of said turnpike road ; and they say that, because the Company and the complainant could not agree upon the amount of said damages, the Company have applied to T. P. Carpenter, a Justice of the Supremo Court, &c.; and that he has fixed upon a time for the appointment of commissioners to ascertain said damages, and that notice thereof has been given according to the said act.
    They deny that the Company or directors eyer employed, authorized or directed the masons mentioned in the bill, or any other person, to tear down, alter or disturb the said bridge; or that it is their intention to do so until the complainant shall be paid Ms damages sustained by the construction of said road, or liis consent is obtained.
    They deny, that in the construction of the turnpike road they will excavate &c. as stated in the bill; but say that, by the grade they have adopted, the turnpike, when finished, will bo, opposite the complainant’s buildings, only one inch lower than the old highway; and that, in the opinion of the defendants, no serious, much less irreparable injury will be done to the complainant in constructing said road ; but that he will bo greatly benefited; but that, whatever the damages may be, the Company are fully able and willing to pay the same, as soon as they can be ascertained in the mode pointed out by the act.
    They deny any intention to erect gates until the road shall be completed; and say they are wholly unable to state at what particular places gates will then be erected; and say that they have no intention of compelling the complainant to pay any other than such tolls as are authorized by the act.
    They aver, that the highway so vacated was not a part of the great highway from Burlington to Salem.

      They deny that that part of said highway which lies between the mouth of the Ellisburgh road and Cooper’s creek was ever a part of the great road leading from Perth Amboy to Salem; and . they deny that the Company intend or have ever contemplated the erection of any toll gate on that part of said highway. •
    A motion was made to dissolve the injunction.

      Dudley and Browning in support of the motion.
    They cited 1 John. Ch. 318; 7 Ib. 315, 336; Baldwin’s Rep. 218, 223; 1 Green’s Ch. 422; 2 Ib. 467; Saxt. Ch. 369.

      W. Halsted contra.
    He cited 23 Wend. 193; 3 Harr. Rep. 200, 204; 1 Bald. Rep. 222, 217; 5 Ired. 297; 2 John. Ch. 162, 7; 3 Barr’s Par. Rep. 281; 3 Green’s Ch. 177.
   The Chancellor.

I do not see that this is a case for the interposition of this Court by injunction, or rather for the retaining of an injunction, under the bill and answer.

. The constitutional question is more proper for a Court of law, and can easily be raised by a proceeding at law by the land owner, the complainant here, after he shall have ascertained what rule of damages the Company claim.

Injunction dissolved.