text:
    Harriet Merselis v. Isaac H. Mead, John Ward and Cornelius Schuyler, executors of the will of Cornelius Merselis, deceased.
    Executors, in several partial accounts which had been exhibited to the Orphan’s Court, had accounted separately; and no objection had been made to that mode of accounting, nor any effort to mate the executors answerable jointly; and there was no evidence that either of the separate accountants ever agreed to become liable for what had been received by either of the others; nor evidence that the executors assumed the uncollected securities and agreed to account to the residuary legatees for the amount of them.

      Held, that the executors were not jointly responsible.
    Partial accounts of executors exhibited and allowed by the Orphans’ Court will not prevent a person interested in the estate from bringing the executors into this court , for a final settlement.
    As long as the estate is not finally settled, this court may direct a statement of the whole account from the beginning, and take its own measures to compel the payment of the moneys found in the hands of the executors by such final account, notwithstanding the Orphans’ Court have, on partial accounts, directed the distribution of the balances thereby found to be in the hands of the executors.
    The bill, filed Feb. 23, 1846, by Harriet Merselis, states, that her father, Cornelius Merselis, made his will, dated January 16, 1835, by which, after directing his debts to be paid as soon as could be done after his decease, he gave and bequeathed to Ms wife, Maria Merselis, all his real and personal estate for and during her widowhood; and also the sum of $3,000 at her own disposal, and, in case she should die or get married without disposing of the game, he ordered Ms executors to divide the same among Ms four daughters, Sophia, Harriet, Caty, Ann, and the heirs of Ms deceased son Iddo, into five equal shares ; and bequeathed unto the heirs of his son Iddo, deceased, being five children, named Maria, Sophia, Cornelius, John and Highly, $2,000in advance out of Ms property; and bequeathed to the complainant $500 as an outfit, to be paid one year after the decease of the testator and his wife ; and bequeathed unto Ms four daughters, named Sophia, Harriet (the complainant), Caty and Ann, and to his son Iddo’s five children one equal share with his four daughters, making five shares, out of all the residue of his property not disposed of before. The legacies of his son Iddo’s five children made to them to be paid by his executors as soon as they should arrive of full age, or whenever either of them should ■get married. And appointed his three sons-in-law, Isaac H. Mead, John Ward and Cornelius Schuyler, executors of his said will. That the testator died in the fall of 1840. That the said .executors proved the will on the 15th Dec. 1840.
    'That the executors possessed themselves of personal estate and effects of the testator to an amount greatly more than sufficient to pay the debts and specific legacies. That the said Maria, widow of the testator, surrendered and gave up her said legacy and her right to the personal estate during her widowhood, as given to her by said will, and has since died. And that the executors thereupon paid all the debts of the testator and all the specific legacies bequeathed by the said will, and received and held a large sum of money in their hands for a long space of time. And that the complainant and some of the other legatees frequently applied to the said executors and requested them to settle the said estate, and to pay to the complainant the amount of her share of the personal property in their hands; and that the complainant never could prevail on them to come to such settlement until about Feb. term, 1845, of the Orphans’ Court of Passaic. That the executors, being cited to appear in said court at that term, made their report to said court, and exceptions were duly filed to their accounts rendered, and auditors were appointed to audit their accounts, who made their report to the said court at the next term thereof.
    That Sophia, mentioned in the will, is the wife oí- the said J. H. Mead; that Caty, mentioned in the will, is the wife of the said J. Ward; and that Ann, mentioned in the will, is the wife of the said Cornelius Schuyler.
    By the report of the said auditors it appeared, that the said Mead, one of the executors, had in his hands as cash collected $8,268 66; that Ward, another of the said executors had in his hands as cash $2,028 75; and that Schuyler had in his hands as cash $182 32; besides divers considerable claims not then collect-eel, consisting of bonds, mortgages, notes and judgments. That at this time all the debts and specific legacies had been paid and satisfied by the executors. Whereupon the said Orphans’ Court made an order for distribution of the said amount on hand, to the purport or effect following:
    “ In the matter of Mead, Ward and Schuyler, executors, &c.
    Order for distribution.
    It appearing to the court, upon the settlement of the separate accounts of the said executors this day, that there is in the hands ■of the said J. H. Mead a balance of $3,263 66; in the hands of John Ward $2,028 15; and in the hands of C. Schuyler $182 32 ; it is ordered that the aforesaid sums he distributed and paid by the said executors to the heirs of C. Morselis, deceased, as by his will directed, viz : One-fifth to Sophia, one-fifth to Harriet, one-fifth to Caty, one-fifth to Ann, daughters of said •deceased, and one-fifth to the five children of Iddo, late son of said deceased, or to their legal representatives. May 12,1845.”
    That the complainant thereupon applied to the said executors to pay to her her share of said estate as directed by the said order ; and thereupon the said executors did pay to her $135, which is all the money that has been paid to her thereon, and is the only money she has received from them or any of them since the said order.
    That shortly afterwards, and on or about June 4,1845, the said throe executors and the five children of Iddo Merselis, or their legal representatives, and the complainant met together for the pursose of dividing all the bonds, mortgages, notes, &c, being the whole of the personal estate of said testator. That thereupon the said executors agreed to be charged with all the said bonds, mortgages, notes &c, being the whole personal property of the said testator not before that timo divided, except a few small claims which were left by consent of all the parties in the hands of John Hopper, Esq., with directions to divide whatever should he recovered from them in five parts according to said will. And that thereupon it was agreed upon between all the said parties, that the amount with which the said executors should be charged, including the said sum of $5,471 25 as cash, was $8,019 09, after deducting all their charges against said estate for debts, legacies, commissions and expenses, leaving for each share $1,608 81 over and above the claims left in said Hopper’s hands, as aforesaid; from which deducting the said $135 paid to each share as aforesaid, left $1,468 81 due to each share as aforesaid. But out of complainant’s share it was' agreed should be deducted a small note of $17, and $100 for a negro, which left $1,351 43 due the complainant from the said executors on the 26th May, 1845.
    That the said executors thereupon proceeded to settle, and pay to the five children of Iddo, or their legal representatives, the amount so fixed and agreed upon as due to them; and did thereupon settle with them and pay them the whole amount due them under said agreement. That, after the said children of Iddo had been settled with, the complainant called upon the said executors to settle with her. That thereupon the said executors adjourned, stating that they had not time to settle further on that day. That after waiting a reasonable time she notified the said executors to meet .and settle her account and claim. That thereupon they met once or twice, but did not and would not settle and pay the complainant according to said agreement; and she has never been able to get payment of the sum so agreed to be due to her; and it never has been paid to her. That the complainant, when the executors were all present, stated to them that, if they had not the money to pay her, she would take a bond and mortgage on good property for the amount so due her, and give time for the payment thereof, leaving said sum at interest. That thereupon the executors, or one of them, promised to give her such bond and mortgage ; but she has not been able to get such bond and mortgage, or any security for the said sum due her.
    The bill states, .that, among other pretences, the executors pretend that in as much as they filed separate accounts they are not jointly responsible to the complainant, but only each for the amount so received by him, after deducting the amount due to his wife for her share of the estate: whereas the complainant charges, that the executors have jointly undertaken the said trust, and have each received considerable sums of money and have handed over such sums to the other executor or executors; and that the said settlement so made by the said executors with the complainant was a joint and not a several settlement; and that they jointly and severally agreed to pay her the said amount so agreed to be due her, with legal interest on the same from said May 26, 1845; and that as such executors they had no right to retain in their hands the amount so due to their respective wives and leave the complainant unpaid.
    The bill prays, that the executors may be decreed to pay the complainant the said sum of f 1,351 43, with interest from May 26, 1845, out of their own estate; and that, if it shall appear that no such agreement and account has been made and taken, or that for any reason they shall not be held liable according to such accounting, then that they pay her the amount so ordered by the said Orphan’s Court to bo paid to her, with interest thereon ; and that they account to her for the residue of the personal estate of said testator which was not embraced and included in the account taken by the said auditors on which the said order of distribution was made; and that they account for the amount so found due to the complainant; and be decreed to pay to her the amount wdiich on such accounting shall be found due to her; and for such other and further relief &c. And she tenders herself ready to give a refunding bond.
    The executors answered separately.
    John Ward, in his answer, after admitting the will and probate as stated in the bill, denies that he and the other executors jointly possessed themselves of the personal estate to a large amount, and jointly undertook to perform the duties of executors, and jointly proceeded to dispose of the property and collect the debts, and out of the moneys jointly to pay legacies and debts of the testator ; or that ho managed any assets, or paid any legacies, except as in his answer after set forth. He says that, some time before the death of testator, the defendant Mead had become the general agent of the testator, with the approbation of the complainant, and had managed his affairs for him, and had thus become much better acquainted with the situation of his property and the character and condition of the debts due to him than either of the other executors. That as said Mead was more conversant with the business of the testator than either of the other executors, though they all proved the will, yet it was understood between them, with the concurrence of the complainant, that the execution of the will should principally devolve on said Mead; and Mead, thereupon, from the beginning took the burthen thereof mainly upon himself, and possessed himself of a large bulk of the estate, and collected debts, and has paid large sums of money on account of the estate in debts and legacies.
    He admits that all the executors were cited to render their acceptances before the Orphan’s Court of Passaic, in' October term, 1844, and that they exhibited their accounts before said court; but he says that each executor accounted separately for the amounts he had received and expended; but he denies that he ever refused to come to an account of the moneys which had come to his hands; or that those were the first accounts rendered by the executors. He says that on the 4th October, 1843, each of the executors rendered a separate account, which was filed with the surrogate, to which no exceptions were then taken; and that each of the accounts afterwards' rendered under said citation commenced from the foot of each accountant’s previous account.
    He admits that exceptions were subsequently filed to all the accounts by and in behalf of the children of Iddo Merselis; but says that no exception was made on the ground that the executors had accounted separately; nor was there any pretense made before the Orphan’s Court, or before the auditors who re-stated those accounts, that the executors, or any two of them should be jointly chargeable for the whole estate; or that any one of them should be charged for more than had actually come to his hands.
    He admits that the said accounts and exceptions were referred to auditors ; and says that the auditors examined both sets of the accounts, and re-stated the same separately for each executor, and reported them thus re-stated to the Orphan’s Court for approval ; and that the said court on the 12th May, 1845, approved the separate accounts as re-stated, and decreed that the same should be allowed.
    He says that in those accounts Mead was charged with the whole inventory, and was credited with such items thereof as had come through his hands into the possession of this defendant, and this defendant was charged therewith.
    He denies that he has possession or intermedledwith any part of the estate except as appears in his said accounts as re-stated by the auditors ; or that he has received sums of money belonging to the estate and handed them over to either of the other executors; or that ho has in any way intermingled his accounts with those of either of the other executors ; or that ho has in any way made himself liable for the moneys and assets of the estate which have passed into the possession of the other executors or either of them; and insists that he is accountable only for the balance reported against him by the auditors.
    Ho admits that the Auditors reported á balance in Mead’s hands of $8263,66 after deducting his commissions ; and a balance in the hands of this defendant of $2020,15 after deducting his commissions; and a balance in Schuyler’s hands of $182,32 after deducting his commissions; and admits that Mead was credited in Ins accounts with various assets that had boon charged in the inventory and which, at the said time of accounting remained uncollected ; and that the amount to be distributed ander the will will be increased, over the above stated balances, by the amounts which have been and may be collected from those assets ; but he says that many of those claims are doubtful and many others of them worthless.
    He admits that the Orphan’s court, on the same day on which they decreed the allowance of the separate accounts of the executors as aforesaid, after reciting the balance in the hands of each executor, also ordered that the said sums he distributed and paid as by the said will is directed.
    He says that he cannot with certainty answer how much the complainant has received out of the estate since the said order of distribution was made ; but he denies that he has paid her any thing, or contributed any thing towards any payments which she may have received from either of the other executors.

      He admits that after the said order of distribution was made, and at the time for that purpose stated in the bill, all the parties interested in the estate went together and examined into the nature and character of the bonds and other assets and securities that had been credited in the account of Mead remaining uncollected and lying in the hands of J. Hopper, Esq., for the purpose of determining on the best disposition to be made of them; but he denies that he then or at any other time agreed to be charged, either separately, or jointly with his co-executors, or either of them, with the said bonds, mortgages or other securities, or with any of them, or any part thereof; or that he assumed any liability on account of the same, or agreed that the balance reported against him by the auditors should in any wise be increased by those assets or in any other manner; or that he would be liable for or pay over to any of the parties interested any more money than the surplus of the amounts so decreed against him after deducting therefrom the distributive share coming to his wife, Caty.
    He denies that any such account as charged in the bill was stated between the executors on the one part and the complainant or any other persons or person on the other; or that the executors agreed to be charged with the sum of §8019,09, or with any sum of money other than as they are charged in the accounts as they passed the Orphan’s court; or that any settlement was made between the executors and the complainant showing that there was a balance of §1468,81 coming to the complainant for her distributive share ; or that after deducting certain amounts from it there would be due the complainant §1351,43 from the executors on the 26 May, 1845 ; or that he, either separately or jointly with the other executors or either of them, promised to pay the complainant any sum of money, or promised to give her a bond and mortgage, or any other security; or that he has done any act or entered into any engagement that can make him liable to pay the amount claimed by the complainant, or to respond jointly with the other defendants, or either of them, for the moneys and assets of the estate which have fallen into their or either of their hands; or that he can be compelled to assume the payment of any of the bonds, &c. which are still uncollected.

      He says that, the representatives of Iddo Marselis, legatees named in the will, being minor children, and on account of their situation, in his opinion entitled to priority in payment, ho, about June 4,1845, paid to them and those representing them $1488,15, out of the balance reported by the auditors as aforesaid to he in his hands; thereby leaving in his hands only $560 on account of the distributive share coming to his wife; but he denies that such payment was made on tho basis of any settlement between the executors and the legatees or persons interested in the residue of the estate, or upon any assumption on his part of the uncollected assets, or of any liability on account of moneys in the hands of either of tho other executors ; hut that the said advance was made by him because he thought he would ho better able than the said children could he to reimburse himself out of the uncollected assets.
    He says that he became a purchaser of some of the personal estate of the testator, to the amount of $22,11, with which amount he has been charged in his said account. That a part of the inventory consisted of two judgments obtained by tho testator against one John Marinus, which, with interest amounted to $1458,15; that the collection of those judgments was passed over by Mead to this defendant, and Mead was credited therewith in his account and this defendant was charged with them. That, considering the claim to ho quite doubtful, this defendant negotiated with Marinus for further security ; and, upon payment of the further sum of $461, he obtained, for the benefit of the estate, the assignment of a bond and mortgage of one Jarvis Grennel for the payment of $1850, or thereabouts, which is duly charged against him in his accounts. That he gave his individual note for the said $461, payable some time after date^1; and, having no moneys of the estate in his hands, he applied to Mead and received from him the said $461, with which'Jb.e paid his note; with which sum this defendant is charged and said Mead is credited in. the aforesaid accounts.
    He denies that he bas received any other assets or moneys of the estate from Mead or Schuyler.
    He admits that he afterwards received on two occasions, from the owner of the equity of redemption of the premises mortgaged to secure the payment of the said Grennel bond $111 of interest on said bond and mortgage ; and that he has received payment of $28,'20 from one-Walker, the amount of a judgment recovered by the testator against him and not inventoried; and that he has twice received the rent of a house in Patterson belonging to the estate, which had been in his charge during the life of the testator, amounting together to $101; which said sums are charged against him in his aforesaid accounts ; and he says that he has not received any other moneys belonging to the estate, nor taken charge of any other property or effects of the estate, nor intermeddled with any of the claims that remained uncollected at the time the accounts of the executors were rendered as aforesaid. ■
    He denies that he has been unwilling to have the accounts of the estate settled and closed; or that he has deferred the same for want of time, or in any way delayed the same ; but sáys that he has always been desirous that the legatees and persons interested should receive the moneys due them, respectively, and that for that porpose, after the said decree for distribution was made, he offered to his co-executors that, if they would assign to him individually a bond and mortgage belonging to the estate and remaining uncollected, given by one Hiram Gelal, for $1000 and interest, he would advance the amount due on the same, first deducting the balance due to his wife over and above the amount in his hands, that the same might be divided among the others according to the will; and that Mead was willing to accept the proposal, but that Schuyler objected to it and refused to execute or to sanction such proposed assumption.
    He submits that he is not bound to pay over to the complainant or to any other person, the amount in his hands to which his wife is entitled, it being less than her distributive share •, but that he has a right to retain the same towards the payment of her share and that thejcomplainant and others interested in the distribution of the estate must look to Mead for the payment of the moneys reported by the auditors to be in his hands; and that the effort on the part of the complainant to charge the executors jointly, and to make this defendant personally liable for more moneys and assets than have come to his hands is unjust.

      Mead, in Ms answer, admits that the executors, or some of them, took possession of all the personal effects and estate, as executors, and that the said estate and effects were more than sufficient to pay the debts and specific legacies ; and that the executors collected divers sums of money; and that the widow surrendered and gave up the legacy bequeathed to her and also her right to the personal estate during her widowhood, except a certain portion of said personal estate, amounting in value to $903 26, which was taken by her for the use of the family ; and that she has since died; and that, so far as he is informed and believes, all the specific legacies have been paid ; but that certain debts, amounting in all to about $380, remain unpaid.
    He says that considerable sums of money have come to the hands of these executors from time to time; but that such sums as came to his hands have been from time to time appropriated to the payment of debts or legacies, without being retained in his hands an unreasonable time.
    He admits that all the executors, not having settled the estate, were cited before the Orphans’ Court, and that they rendered separate accounts; and that exceptions wore filed and auditors appointed to audit as well the separate accounts as all other accounts theretofore filed by the executors. And that the auditors examined said accounts, and reported to the Orphans’ Court. But he denies that by the said report it appears that he had, at the date of said report, in his hands as cash, $3,263 66, though he admits and states, that the said sum is the balance appearing against Mpi by said report; but that therein a large amount of bonds, notes, book accounts and judgments are charged against Mm, some of which have never been collected; and the whole inventory is therein charged against him ; on the sale of which personal property certain losses have unavoidably occurred which are not therein allowed to him; and that, in and by the said report, the moneys stated to have been actually received by him compose a small proportion of the whole amount charged against him; and that said bonds, notes, book accounts, judgments and personal property are a part of the account on wMch said balance is struck; and he prays leave to refer to the said report.

      He admits the order of distribution stated in the bill; but avers that it is erroneous and unlawful, and ought not to be in-forced in equity, in that it directs the distribution of moneys which had not then and have n'ot since come to his hands, and which were not then and are not now chargeable to him, and in that the same is not in accordance with the said auditor’s report on which it is manifestly based.
    He says he has heard and believes that, shortly after the date of the said order of distribution, $135 was paid to the complainant ; but that he has no knowledge by whom it was paid, though he believes it was by his co-executor Ward; but whether paid in pursuance of said order of distribution he has no knowledge.
    ' He admits he has met together with his co-executors and the children of Iddo Merselis, or their representatives, for the purpose of settling said estate, about June 4,1845; but he denies that at said meeting, or at any other time, he, as one of the executors, either severally or jointly with them, agreed to be charged with all the bonds, mortgages and notes not before that time divided, being the whole of the personal estate of the testator not before then divided, except as in the bill excepted ; and that he did not at said meeting, or at any other time, either severally or jointly with his co-executors and the said devisees, agree that the said executors should be charged with $8,019 09 after deducting all their charges against said estate for debts, legacies, commissions and expenses and including the said sum of $5,411 25 as cash. On the contrary, he avers that he did not then, nor has he at any time made any agreement with the parties aforesaid, or with any other person or persons, that could bind him to pay and made good out of his individual estate any losses that might be incurred on any of the said bonds, mortgages, notes, judgments or accounts, or to pay any debts that might still remain due from said estate, or to release or abandon any just and lawful claim he then had or might thereafter have against said estate for or on any account whatever.
    He denies that $1,341 43, or any other definite sum, has been agreed upon by him as a fixed balance due the complainant; and avers that the pretended facts stated in the bill, and which are the basis of the calculation which results in the said balance, are (as they have been hereinbefore) denied; and that the complainant has no claim except for one-fifth of such residue as may remain after all the residue of said estate shall be converted into money and all debts, costs, expenses and liabilities shall be paid and discharged.
    He admits that, since the date of the said decree of the Orphans’ Court, $1,800, as near as he can recollect the amount, has been paid or secured to the children of Iddo Merselis ; but he denies that by the said payment any agreement was recognized by which the defendants, or any or either of them, was bound to answer for any part of the assets of the estate out of their own personal property, or by which any bonds, judgments, notes or accounts then remaining uncollected should be charged to the defendants, or either of them, as cash, or by which any certain or fixed sum was ascertained as the amount due the complainant as residuary legatee; and avers that the said payment or security for payment was made and given in good faith, and under the belief that the same would not exceed the amount that would fall to the share of the said minor children on the final settlement of the said estate; and further, that such payment and security were made and given with the knowledge and concurrence of the complainant.
    He admits that, after said payment or security to Iddo’s children, the complainant called on these defendants to settle with her for her share, and that the said claim as stated in the complainant’s bill has not been paid, to the best of this defendant’s knowledge and belief; and as to the allegations of the complainant respecting an offer made by her to take a bond and mortgage on good property for the amount in her bill alleged to bo due to her, as said offer is stated in said bill, he says he has no knowledge of any promise by the executors, or either of them, to give the complainant such bond and mortgage; though he admits that, about the time in the bill stated as the time of said offer and promise, the complainant offered to take a mortgage on certain property of this defendant, by her designated, for an amount which this defendant does not recollect, but exceeding the amount by her claimed in her bill, and comprising as well a claim made hy her under the pretended agreement in her bill set forth as certain other pretended claims made by her against this defendant individually and not as executor ; but that this defendant refused to comply with said offer, and offered, on his part, to secure to her by mortgage an amount which he cannot now recollect, but less thian the sum then claimed by the complainant, and less than the amount claimed by her in her bill; but that the complainant refused to accept his said offer, and neither party was bound to abide by the offers then made, no agreement having been concluded between them.
    He admits that Sophia is his wife ; and that Caty is the wife of Ward; and that Ann is the wife of Schuyler.
    The defendant Schuyler, in his answer, denies that he took into his possession any of the personal estate; and says that Ward and Mead took into their possession all the personal estate, and the whole burden of the settlement of the estate.
    He admits the citation of the executors before the Orphans’ Court, and the proceedings thereon as stated in the bill; and says that, though he was charged in the report of the auditors and in the decree with $182 32 as cash, to which he did not object, yet that this sum was the amount of a bill of articles bought by him at the vendue, and which was -left unpaid by him to be deducted from his wife’s distributive share.
    He says that, on or about June 4, 1845, Mead, Ward and himself and the five children of Iddo, or their representatives, and the complainant met together for the purpose of dividing all the bonds, mortgages, notes &c., being the whole of the personal estate, and settling the estate. That thereupon an account was made out of the whole estate, except a few claims which, by consent of all parties, were to be left in the hands of John Hopper with directions to divide whatever should be recovered from them in five parts according to the will; and that on such accounting this defendant was to be charged with the said $182 32, being the amount charged against him, on account of his wife’s share; and that the whole of the personal estate, ' except the amount so' left in Hopper’s hands, after deducting all charges against said estate for debts, legacies, commissions and expenses, was $8,019 09, leaving for each share $1,603 81 over and above the amount in Hopper’s hands. But, inasmuch as this defendant had not in his possession any of the moneys of the estate, the persons entitled to distributive shares were to be paid by Mead and Ward, they' having the whole estate in their hands.
    That upon making th is statement, and all parties agreeing to it, Mead and Ward thereupon forthwith proceeded to settle with Iddo’s children, or their representatives, and paid them their share of the estate, being the amount so fixed upon and agreed to as their share.
    That, after Iddo’s children had been settled with, the complainant demanded that she should be paid ; but that they then adjourned; and that afterwards they had another meeting, all being present except Iddo’s children and their representatives ; and this defendant believes that the complainant has never been paid the amount due her for her share ; but he insists that, as he never had the estate in his hands, he ought not to be charged therewith, but that the same ought to be paid by Mead and Ward, who held all the moneys and assets in their hands.
    Testimony was taken ; and the cause was heard on the pleadings and proofs.

      A. 8. Pennington for the complainant.

      John Hopper for the defendant Ward.

      H. Barkalow for the defendant
    Mead. He cited 1 Green’s Ch. 490; 2 Ib. 44, 54, 231.
   The Chancellor.

That part of the prayer of the bill which is founded on an alleged agreement by the executors to become jointly responsible to the complainant for a certain amount, including several bonds and mortgages and other securities not yet collected, and which prays that the executors jointly may be decreed to pay to the complainant that certain amount, cannot, upon the proofs in the case, be granted. The executors, in tho several partial accounts which had been exhibited to the Orphans’ Court and allowed, had accounted separately; and no objection was made to that mode of accounting, nor any effort to make the executors answerable jointly ; and there is no evidence to show that either of the separate accountants ever agreed to become liable for what had been received by either of the others ; nor any evidence sufficient to show that the executors assumed the uncollected securities and agreed to account to the residuary legatees for the amount of them.

By the last separate accounts of the executors settled before the Orphans’ Court there was found to be in the hands of the executor Mead, $-; and in the hands of the executor Ward, $-; and in the hands of the executor Schuyler, |-- y and by the order-of that court the executors were ordered to distribute the amounts in their hands.

Another part of the prayer of the bill is, that if the executors cannot be held liable on the agreement set out in the bill, (the alleged agreement on which the first part of the prayer is founded) then that the executors may be decreed to pay to the complainant the amount so ordered by the Orphans’ Court to be paid to her, with interest thereon, and that they account for the residue of the personal estate which was not included in the accounts allowed by the Orphans’ Court; and that they may be decreed to pay to the complainant the amount which on such accounting shall be found due to her ; and for such further and other relief &c.

No final account has ever been settled by the executors in the Orphans’ Court. The partial accounts which have been exhibited to and allowed by the Orphans’ Court cannot prevent the complainant’s bringing the executors into this court for a final settlement.

This is as far as it is necessary to go at present. It will be referred to a Master to take and state the accounts of the executors ; and all further equity and directions are reserved until the coming in of the Master’s report.

It was argued on the part of the defendant Mead, that, inasmuch as the Orphans’ Court had made an order for the distribution of the several amounts found in the hands of the respective executors by the partial accounts exhibited to and allowed by the Orphans’ Court, the complainant could ask no relief in this court in reference to those amounts ; for that the power of the Orphans’ Court to compel the distribution was ample.

The question here presented is, whether, when on partial settlements by executors the Orphans’ Court order distribution of the moneys then in hand, and they are not distributed, and the complainant comes into this court for a final settlement, and the estate is finally settled here, this court cannot act in reference to the balances struck against the executors by the Orphans’ Court on the partial settlements, and adopt its own measures to compel their payment.

It seems to me that, as long as the estate is not finally settled, this court may direct a statement of the whole account from the beginning, and take its own measures to compel the payment of the moneys found in the hands of the executors by such account, notwithstanding the Orphans’ Court have, on partial accounts, directed the distribution of the balances thereby found to be in the hands of the executors.

It will be referred to a Master to take and state the accounts of the executors ; and all further equity and directions are reserved until the coming in of the Master’s report.

Order accordingly.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Randolph Field and Henry Shepherd v. Jonathan Cory and-Waldron, Overseers of the Poor.
    On the oath of E. G., a single woman, that R. E. had gotten her with child, and that the child was likely to be born a bastard and to be chargeable to the township of Warren *in the county of Somerset, a warrant was issued by P. II. and L. M., two of the Justices of the Peace of the said county, for the arrest of R. E., and a summons for the appearance of the said R. E. and E. G. before the said two Justices. By virtue of this warrant, a constable of the said county arrested R. E. and took him before G. W., another Justice of the Peace of the said county. R. E. denied the charge, and proffered himself ready, with H. S., his friend, to give therequisite security for his appearance at the General Quarter Sessions of the Peace, to abide such order &e. Instead of taking a recognizance for appearance as aforesaid, the said Justice, G. W., prepared a bond to indemnify the township, which R. E., with H. S. as his surety, executed, supposing it to be an instrument of security for appearance as aforesaid.. Afterwards, an examination was had before the said P. M. andL. M„ Justices, the Overseers of the Peor of the said township attending, and the Justices decided against making an order of bastardy against R. E. Afterwards, one of the said Overseers informed R. E. that the instrument which he and his said surety had signed, as aforesaid, was a bond to indemnify the township; and that the Overseers intended to enforce it. R. E., thereupon, went to Justice G. W., to inquire &c., who informed R. E. that he, the said Justice, knew it was the intention of R. E. and his said surety to give security for the appearance of R. E. as aforesaid; but that the constable told him, the said Justice, that he must prepare an indemnifying bond; and he did so; but that, as he had made the mistake, he would make out a recog'nizance for R. E.’s appearance as aforesaid. And the said Justice made out the recognizance, and sent it to the Court of Quarter Sessions; which court, at the next term thereof, discharged R. E. and his surety therefrom. And, afterwards, the said Overseers commenced an action in the Circuit Court of Somerset on the said bond of indemnity.
    On a bill stating the foregoing facts, an injunction was allowed restraining further proceedings in the said action.
    The bill prayed a decree that the said bond be delivered up to be cancelled. N® answer was put in. An order for proofs was made; and, subsequently, a decree for the complainants.
    On the lYth June, 1846, Randolph Field and Henry Shepherd exhibited their hill, stating, that Elizabeth Giddis, a single Aroman, on the 4th August, 1845, appeared before Peter Moore, a justice of the peace for the county of Somerset, and made oath charging the complainant Field with-getting her with child, and that the child was likely to be born a bastard and chargeable to the township of Warren, in the said county. That on the 10th Dec. 1845, the said Peter Moore and Lewis Mundy, two of the justices of the peace of the said county, issued a warrant for the arrest of Field, and a summons for the appearance of Field and the said Elizabeth before them. That on the 16th Dec. 1845, David Bird, one of the constables of said county, by virtue of the said warrant, arrested Field and carried him before Garret N. Williamson, Esq., a justice of the peace of said county. That Field, being innocent of said charge, and being persuaded that on a fair trial ho could prove himself to be so, in order that a trial might be had, called on the complainant Shepherd to be his surety for the appearance, and for the appearance only, of Field, that the trial might be had according to law, on the day mentioned in the said summons. That the complainants, being farmers and entirely ignorant of proceedings at law in such cases, and being far from counsel, and Field' being in custody of the constable as aforesaid, relied upon the said Justice Williamson to prepare such a paper, and such a paper only, as would secure the appearance of Field. That on the day last aforesaid the said Justice Williamson prepared a paper writing, as the complainants supposed and believed, according to the request of the complainants, to which the complainants put their names, supposing and believing it to be a security for the appearance of Field, at the next Court of General Quarter Sessions of Somerset, to abide and perform such order or orders as should be made in pursuance of the statute in such case made and provided.
    That the overseers of the poor of Warren had full notice, on the day last aforesaid, that the complainant Field denied being the father of the child, and of his intention to contest the said charge; and that the said overseers, as well as the said Field, prepared themselves to try the said question of bastardy. That on the 17th Dec. 1845, as well the said overseers, with their counsel, as the said Field, with his counsel, appeared, prepared to try the said question of bastardy.
    That the said question was, on the day last aforesaid, tried before the said justices, and a judgment of acquittal pronounced in favor of Field. A copy of the proceedings before the justices is given, as follows :
    <c Somerset County, Wauuen v Randolph Field.
    August the 4th, 1845. Personally appeared before me the-subscriber, one of the Justices of the Peace in and for the county of Somerset, Elizabeth Giddis, of &c, and made affidavit before me charging therein Randolph Field with getting her with child-I received a line from Daniel Waldron, overseer of Warren, requesting me to isssue a warrant for the arrest of the said Randolph Field i which I immediately done. December 10th, 1845,. I, together with Lewis Mundy, issued a summons for the appearance of the said Randolph Field and the said Elizabeth Giddis. December 17th, David Bird, constable, returned the warrant indorsed by G. S. Williamson, justice, certifying that the parties or defendant had entered in a bond to indemnify the township of' Warren. David Bird, constable, also returned the summons!, having served the same on the defendant by leaving him a copy of the same. 17th, the parties appeared, and proceeded to trial. For the plaintiff were sworn and examined Elizabeth Giddis, and Fanny Giddis. For the defendant were sworn Richard Field,. Catharine Field, Hannah Randolph, Agnes Jackson, Hannah Perrine, Maria Vanderwater. After hearing the evidence off both parties, the court agreed not to make an order of bastardy against the defendant. I do hereby certify that the foregoing is a true copy of the record. , Given under my hand and seal January 1, 1846.
    PETER MOORE, [l. s.]

      Justice of the Peace.

    The bill states that after the Said trial, and after the said justices had pronounced their judgment, and on the same day,. Jonathan Cory, one of the overseers of the poor of Warren, informed Field that these complainants had entered into a bond indemnifying the said Township against the maintenance of the-said bastard child; and that the said overseers intended to enforce the said bond. That Field, well knowing that he never intended to give such a bond, demanded of the said overseer to-produce said bond; to which demand the said overseer gave an evasive answer. That Field then demanded of the said overseer that he should deliver up the said bond to be canceled, in as much as it never was his intention to indemnify the township, or to give a bond for that purpose, but, on the contrary only to give such security as would secure his appearance to try the said cause before the said justices. That the said overseer refused to deliver up the said bond, and threatened to proceed at law to enforce the same; the complainants being well convinced that, if they had given such a bond, it was done through a mistake of their rights or intentions. That Field immediately repaired to the said G. S. Williamson, Esq., and inquired of him how it came that he had induced the complainants to sign a bond to indemnify the township against the maintenance of the said bastard child, instead of taking security for the appearance of Field. That said Williamson replied, that he understood from the complainants that it was their intention to give security for the appearance of Feld 5 but that the constable who had Field in custody informed him, the said Williamson, that he must prepare an indemnifying bond; and that he, the said Williamson, through misapprehension of the real design of the complainants, prepared the bond accordingly; but, inasmuch as he, the said Williamson, had made the mistake, he would make out the recognizance and send it to the court of General Quarter Sessions, according to law. That said Williamson did make out a recognizance and send it to the said court in the words and figures following, to wit: (it is given): It is a recognizance purporting to have been taken by G. S. Williamson, a justice See, by which Field and Shepherd acknowledge themselves indebted to the state in $200 each, to to be levied &c, and reciting the charge, and conditioned for the appearance of Field at the next court of Quarter Sessions for Somerset, to abide such order or orders as shall be made in pursuance of the act entitled “ An act for the maintenance of bastard children.”
    The bill states, that such proceedings were had upon the said complaint, that the said court of Quarter Sessions, in the term of February, 1846, discharged the complainants, Field and Shepherd, from their said recognizance. That the said overseers of Warren well knew that the said bopd was given by the complainants through mistake and contrary to their intentions ; yet that Cory and Waldron, (the defendants,) the overseers of the poor of Warren, have commenced an action in the Circuit Court of Somerset to enforce the said bond.
    The bill prays ,that the said bond may be decreed to be delivered up to be canceled; and that, in the mean time, the said suit may be injoined.
    The injunction was granted.
    No answer was put in; and an order for proofs was made.

      Wm. Thompson for the complainants.
   The Chancellor.

Decree for complainants.


text:
    Hezekiah Kelly v. The Neshanic Mining Company.
    A judgment which was not entered until after the appointment of a Receiver under the “Act to prevent frauds by incorporated oompanies” is not entitled to preference.

      Semble, that a judgment which was not entered until after injunction granted under the said act is not entitled to preference.

      Semble, that the Receiver, under the said act, should sell the property, irrespective of the incumbrances, and pay the incumbrances, according to their priority, out of the proceeds. But that the court may direct the Receiver to sell subject to the incumbrances.
    As to the question whether the Receiver should sell the engine, mining tools and implements with the mine lands or separately, the court left it to the discretion of the Receiver, to be determined by inquiries to be made by him as to the probability of finding ore by continuing the works; no ore having yet been found.
    On the 12fch November, 1847, Hezelriah Kelly filed a bill, under the act relating to insolvent corporations, against the Neshanic Mining Company.
    The bill charges, that the said Company have suspended their ordinary business, from November 9th, 1847, (having before charged that the company ceased paying &c, from August 2d, preceding;) and that the company, as the complainant has heard and believes, are insolvent.
    That the company, on the 13th of May, 1847, employed the complainant as a superintendent, at the rate of $1,500 per annum, which sum, with traveling expenses, the company agreed to pay monthly. ,
    That the Company have not paid him monthly; but that they are indebted to him in $600 for his services and traveling expenses.
    That the Company are indebted to him in the further sum of $400, paid, laid out and expended for the use of the company, at their request, in the purchase of tools and the payment of laborers ; which said sums were paid and advanced by the complainant from September 1, to November 8, 1847.
    The bill states that the Company are indebted to divers persons, (naming them,) in divers sums, amounting in all to $4,494 43, including a debt stated to be due to Jacob Rockafellow of $2,118 97.
    That J. H. Bill pretends that he has a claim against the Company, for money advanced and services rendered, of $500.
    That the value of the real estate of the Company is $3,000 ; the value of the engine and machinery $750 ; the value of the pump, tools, &c, $160; which is all the property and assets of the Company, as far as the complainant knows and believes, amounting to $3,910.
    The bill prays a discovery of the property of the company; and that the complainant and the other creditors and stockholders of the company who may come in may be paid; and that the company be injoined from receiving debts and from transferring debts or property, and from exercising their franchises; and that a receiver be appointed.
    The injunction prayed was allowed. On the 22d March, 1848, a demurrer was filed to the bill, by the company.
    On the same day, Janet Blair filed a bill against the company for the foreclosure of two mortgages on their real estate; one dated April 201847, given by Anthony Dey to the said Janet Blair, to secure the payment of a bond, of the same date, given by Dey to her, conditioned for the payment of $500 on or before the 1st of July then next, with interest from and after the 1st of May then next; which mortgage is stated to have been acknowledged on the 3d June, 1847, and to have been recorded June 15, 1847; the other mortgage dated the same 20th of April, 1847, given by Anthony Dey to the said Janet Blair, to secure the payment of a bond, of the same date, given by Dey to her, conditioned for the payment of $2,000 on or before the 1st of May, 1848, with interest from the 1st of May 1847; which last mentioned mortgage is stated to have been acknowledged on the 24th of April, 1847, and to have been recorded on the 28th of that month.
    This bill states, that the said complainant, Janet Blair, has been informed that, previous to the execution and delivery of the said two mortgages, the said Dey had executed a mortgage on the same lands to Jacob Rockafellow, for $2,000, dated during or about some day in April, 1847; and the said Janet admits that, if the said mortgage is any lien, it is a lien prior to her said mortgages. But this bill says that' the whole sum due Rockafellow on his said mortgage was $2,006 67 on the 19th May, 1847, when that amount was lawfully tendered to the said Rockafellow, in specie, in payment of his said bond and mortgage. That after the execution and delivery of the before mentioned mortgages the said premises were conveyed to the Neshanic Mining Company by said Dey and his wife.
    This bill states, that the said premises are in such a condition that they cannot be diyided without materially injuring their value and jeopardizing the securities thereon; and prays that the whole premises may be sold.
    Subpena is prayed against Rockafellow, Dey, and the Neshanic Mining Company.
    On the 25th May, 1848, the petition of John G. & Joseph H. Reading, Jacob Rockafellow, and five others therein named was presented, stating the filing of the bill of Hezekiah Kelly; that the Company are indebted to the petitioners as follows : To the said Readings, they being partners, in $206 92 ; to Stinemire & Sehamp in $21 92 ; to Jacob Rockafellow in $45 68, besides the amount due on his mortgage for $2,000; to Charles Green in $90 75 ; to John Rockafellow in $44 25, and to Thomas Gray in $84 49; these being the petitioners named in the petition. The petitioners pray to be permitted to come in under the bill filed by Kelly. The petition states that the said Company suspended their ordinary business on the 9th of November, 1847, and that their business had since remained and still was so suspended and stopped; and that the machinery and tools of said Company are rapidly becoming spoiled for want of any care and attention.
    That since the argument of the motion for the appointment of a receiver on the 27th November, 1847, and on the 22d May, 1848, Janet Blair has filed a bill, setting forth &c, (stating the contents, or part thereof.) That since the argument of said motion and since the service of the injunction on the Company, and notwithstanding, a writ has been issued out of the Supreme Court wherein one Marmaduke Moore was plaintiff, against the said company, in trespass on the case, returnable the first Tuesday in January 1848, returned with the following indorsement thereon: “ Appearance is signed for the defendants by order of the Company by Wm. Pennington, Attorney of Company.” And that, by the consent of the said defendants, and by their confession, judgment was entered against them in said suit on the 5th April, 1848, and the damages assessed by the court at $1,090 50 besides costs; for which sum judgment was entered against the said defendant, in favor of said Moore, by virtue of the following confession of judgment on the bottom of the said assessment: “The above are agreed to as the amount of damages in this cause; by order of the defendants, Wm. Pennington, Attorney for defendants, April 4th, 1848.” Said assessment setting out the claim to be for cash advanced by the said Moore to the said Company on the 29th October, 1847, together with the interest thereon; the said Moore making no affidavit that the same was justly due him, nor any other person making such affidavit for him.
    The petitioners say they are informed and believe that the declaration in the said cause was not brought to the office of the' clerk of the Supreme Court until after the 3d Tuesday in March, 1840 ; but that the same is marked filed as of the proper time for filing the same, by the collusion and consent, as the petitioners believe, of the said defendants in said suit.
    That execution'has been issued on the said judgment, to the sheriff of Hunterdon, commanding him to make the amount of said judgment out of the property of the said complainant.
    The petitioners state, that neither the said mortgage for $2000 to Janet Blair mentioned in the said bill, nor the said claim of Marmaduke Moore for cash advanced, was mentioned or inserted in the schedule made by J. H. Bill, marked exhibit A. in this cause, of the liabilities and assets of said company; nor are they mentioned or included in the affidavits of said J. H. Bill made in this cause, though in one of said affidavits he declares that his position in the company has enabled him to understand with accuracy its financial condition and the state of its accounts with individuals. Neither has said Dey, in his affidavit concerning the affairs of the company, mentioned either the said $2000 mortgage to Janet Blair or the claim of Marmaduke Moore for cash advanced; but the said J. H. Bill has mentioned in his schedule the mortgage of $500 to Janet Blair ; all which affidavits were read before the court on the argument of the motion aforesaid for a receiver.
    The petition prays an injunction restraining the sheriff of Hunterdon from selling the property of the said company by virtue of the said execution in favor of said Moore, and from all other proceedings thereon, until the further order of the court; and that a receiver be appointed to receive and take charge of all moneys, goods and lands of the said Neshanie Mining Company, for the benefit of the creditors and stockholders of the said company.
    The petition was subscribed and sworn to by J. H. Reading, Benjamin Stinemire, Jacob Rockafellow, Charles Green, John Rockafellow and Thomas Gray.
    The injunction prayed in this petition was allowed, and a receiver appointed, on the the 23d May, 1848.
    On the 6th June, 1848, a supplemental bill was filed by Hezekiah Kelly and the said petitioners against the said company and Janet Blair, Marmadukc Moore, and Joseph II. Bill, stating the original bill filed by Kelly, and the filing of the said petition; that an injunction issued on the said bill of said Kelly; that an injunction issued on the filing of the said petition, pursuant to the prayer thereof; and stating the appointment of a receiver. (Amplius B. Chamberlain.) And showing, by way of supplement, that, since the filing of the original bill by Kelly, Janet Blair had filed her bill, (setting forth the contents thereof). That the complainants have been informed, believe and expressly charge, that the whole price or consideration paid or agreed to be paid by Dey for the premises was $4000 ; $2000 of which he paid in cash, and executed to Jacob Rockafellow, of whom he purchased the premises, a mortgage on the said premises, dated April 20, 1847, recorded April 27, 1847, to secure the payment of the remaing $2000. That at the time or before the conveyance of said premises by Dey to the Neshanie Mining Company Janet Blair was paid the sum of $1500 and received and took a mortgage of $500 on the said premises, in full satisfaction of her said mortgage for $2000. That said Dey, in his deed of the premises to the Neshanie Mining Company, recorded &c., has fully set out all the incumhrancés upon the said premises which remained due and unpaid at the time of the making of said deed, and has therein stipulated for the payment of the same by the said company; which stipulation the said company have thereon agreed to, and in testimony thereof, have thereto affixed the common seal of the said company; and the signature of Isaac A. Johnson, the president of the said company, is thereto subscribed. But that the said mortgage to Janet Blair for $2000 is not therein mentioned or referred to, because it had been fully paid and satisfied in manner aforesaid.
    This bill charges that the mortgage to Janet Blair for $500 was not executed and given on the 20th of April, 1847, but that the same was not executed and given before May 30, 1847.
    He states the judgment of Moore against the company, entered on the 5th of April, 1848, for $1090 50, besides costs, and that an execution issued thereon to the sheriff of Hunterdon ; and charges that it was obtained by the collusion and consent of the company, notwithstanding the injunction restraining the company from incumbring or otherwise disposing of any of the real estate of the company; stating the facts stated in the said petition in relation to the said judgment. It there charges that no money was advanced' by Moore to the said company on the 29th October nor at any other time; and that the said judgment is fraudulent, and was obtained by the collusion and consent of the said company to avoid the injunction issued, by the court, and to incumber the property of the said company, and to prevent the complainants from obtaining the moneys due them from, the said company, and to cover and fraudulently protect the property of the said company from their creditors; the company having suspended &c. on the 9th of November, 1847, and having remained so suspended, and no money having been laid out and expended by them since that time.
    That the defendants produced and offered as evidence in this cause the affidavit of J. H. Bill, with a schedule therewith of the liabilities and assets of the said company, which is marked exhibit A. in this cause, dated November 27, 1847, in which the said bill declares, &c. (as before stated.) That the said schedule and affidavit do not include or mention the mortgage for $2000 pretended by Janet Blair to be still existing, nor the said judgment obtained by Moore, nor any sum as being due to bim; nor is his name mentioned in said schedule and affidavit.
    That the whole of the debts due and owing at that time by the said Company, and therein particularly mentioned and set forth, still remain unpaid.
    That said J. H. Bill further stated in his said affidavit that he was, and had been since May 18th then last, the clerk and general agent of the said Company, and had been during the greater part of that time at their works, his business being to take charge of the buildings, and to pay out the funds of the Company, and generally to attend to the business of the Company; and that his position in the Company had enabled him to understand with accuracy its financial condition and the state of its accounts with individuals.^
    That the defendants produced and offered as evidence an affidavit in the cause made by A. Dey, by whom the said mortgage of $2,000 was given to Janet Blair, in which affidavit he states that he has no doubt that the debts of the said Company are truly stated by said J. H. Bill in his affidavit, which had been read to him; which affidavit of said Dey is dated November 26, 1841.
    That since the filing of the original hill by Kelly the said J. H. Bill has obtained a judgment against said Company for $832 12, besides costs ; which judgment was obtained in the Circuit Court of Essex, on the 24th May, 1848, fand was docketed in the Supreme Court; and that an execution was issued thence to the Sheriff of Hunterdon; hut the complainants charge that the said judgment is fraudulent and void, and that the said Company wore not indebted to the said J. H. Bill$ and if indebted at all, are not indebted boyond the amount of $501 83, as appears by the said affidavit and schedule of said J. H. Bill, dated Nov. 21,1841, in which he sets down his own demand at that sum.
    This hill prays that Janet Blair, Marmaduke Moore and J. H. Bill bo made defendants in this cause with the said Company j and that they may answer, respectively; and that the said Janet he decreed to surrender the said mortgage for $2,000; and that Moore and Bill be restrained from any further proceedings on their respective judgments; and that the receiver heretofore appointed be directed not to pay to the said Janet her said claim for the amount of the said mortgage; and not to pay to the said Moore and Bill their respective judgments ; and for further relief.
    On the 27th June, 1848, an order limiting creditors was taken.
    On the 21st Sept. 1848, an order staying sale on the judgment of bill was made ; and on the same day a decree pro. con. was taken against the Company on the original bill of Kelly against the Company; and on the same day a decree pro con. on the supplemental bill was taken against Moore, Bill and Janet Blair.
    On the 22d Sept. 1848, an order was made that the receiver sell the real estate subject to the mortgage of Rockafellow and the $500 mortgage of Janet Blair.
    On the 23d Sept. 1848, an order was made giving the receiver 30 days to answer the bill of Janet Blair against the Company.
    On the 3d Nov. 1848, the receiver put in his answer to the bill of Janet Blair.
    He denies that there is anything due her upon the mortgages stated in her bill; but says that the same are, as he is informed and believes, entirely fraudulent and void. That Dey, having-obtained a transfer of the stock of an insolvent Company, reorganized it, among his relatives and friends, by distributing a few shares to each ; they becoming Directors in the new concern. That Dey also procured an assignment to himself of an article between Peter I. Clark, Esq., and Jacob Rockafellow for the purchase and sale of the mining property formerly owned by the old Neshanic Mining Company.
    This answer states, (giving the facts and allegations on which the statement is founded,) that the f500 mortgage to Janet Blair, as well as the f2,000 mortgage to her, is fraudulent and void.

      On the 17th Dec. 1848, Rockafcllow put in his answer to Janet Blair’s bill.
    On the 2d October, 1848, Janet Blair presented her petition, stating &c.; and stating that it would be injurious to the interests of the persons interested in the property to sell the engine, pump and fixtures separately. That she has heard of the order directing the receiver to sell the property subject to the mortgage of Rockafcllow and the $500 mortgage of Janet Blair, thereby excluding her claim on her $2,000 mortgage; and no information was given whether they intended to sell the engine, pump and fixtures separate from the farm. She therefore prays an order on the receiver to suspend the sale until the matters of fact can be inquired into, and especially to injoin the sale of the engine, pump arid fixtures separate from the farm.
    The petition of Janet Blair and Joseph H. Bill was also presented, stating &c. j and praying that all orders restraining the Sheriff from proceeding to sell under the judgment and execution of said Jos. H. Bill may be set aside ; and thereupon it was ordered that cause he shown on the 30th Oct. 1848, why all orders restraining the Sheriff from proceeding to execute the judgment of Jos. II. Bill should not bo set aside, and the said Sheriff be permitted to proceed with the sale of the real estate of the Company, together with the machinery; and why the sale of the same by the receiver should not be injoined; and it was further ordered that the receiver and the Sheriff be injoined from selling until the further order of the court; and that the sale be adjourned from timo to time until the foregoing matters he determined ; and that a copy of said order bo served ten days prior to the said 30th o! October.

      Geo. A. Allen for the general creditors.

      F. T. Frelinghuysen for Blair and Bill.
   The Chancellor.

The question now submitted is, whether the judgment creditors, or either of them, shall be permitted to proceed to sell under execution; or whether the receiver shall sell; and, in either case, how and when the property shall be sold; whether the engine, pump and machinery shall be sold separately from the farm, or with the farm; or whether the sale shall be deferred altogether until the question as to the validity of the judgments, and of the mortgages except the mortgage to Rockafellow, shall be determined, in the suits now pending, in which their validity is disputed.

The bill of Hezekiah Kelly was filed Nov. 12, 1847, charging that the Company, having ceased to pay debts 6n the 2d of Aug. 1847, suspended their ordinary business, for the want of funds to carry on the same, on the 9th of Nov. 1847.

On this bill an injunction was allowed, restraining the Company from collecting debts or transferring property.

The judgment of Moore was entered on the 5th April, 1848, on a writ returned in January, 1848.

The receiver was appointed on the 23d May, 1848.

The judgment of Joseph H. Bill was entered on the 24th of May, 1848.

The judgment of Bill was entered subsequently both to the injunction and the appointment of the receiver. Moore’s suit, in which his judgment was obtained after the issuing of the injunction ; and his judgment was entered before the appointment of the receiver.

The 5th section of the “Act to prevent frauds by incorporated companies” provides, that when any incorporated company shall have become insolvent, it shall be lawful for any creditor or stockholder to apply to the Chancellor, by petition or bill, setting forth &c., for a writ of injunction and the appointment of a receiver ; whereupon the Chancellor may hear &c.; and if it shall be made to appear to the Chancellor that the said company has become insolvent &c., it shall be lawful for the Chancellor to issue an injunction to restrain the company from exercising any of its privileges or franchises, and from receiving any debts, and from paying out, selling, assigning or transferring any of the estate, moneys, funds, lands, tenements or effects of the company. And the 7th section of the said act provides, that it shall be lawful for the Court of Chancery, at the time of ordering the said injunction or at any time afterwards during the continuance of the injunction, to appoint a receiver with full powmr to demand, sue for, receive and take into his possession, all the goods &c., credits, moneys and eifects, lands, books, papers, choses in action and property of every description belonging to the company at the time of tbeir insolvency or suspension of business; and to sell, convey and assign all the said real and personal estate ; and-to pay into court all the moneys and securities arising from such sale, or which the receiver shall receive by virtue of the authority vested in him, to be disposed of by him, from time to time, under the order of the court, among the creditors of the company.

And the 15th section of the said act provides, that, in the distribution of the funds of the company, the creditors shall be paid proportionally to the amount of their respective debts, excepting mortgage and judgment creditors when the judgment has not been by confession for the purpose of preferring creditors.

Independent of the question whether the judgments of Moore and of Bill, in this case, may or may not be considered as having been by confession for the purpose of preferring creditors, is either of them entitled to preference over creditors at large.

Bill’s judgment can have no such preference, because it was not entered till after the appointment of the receiver.

Moore’s judgment was entered before the appointment of the receiver, but not till after the injunction against the company as an insolvent company was issued. I am of opinion that no judgment is entitled to preference unless it was obtained before the granting of the injunction under the provisions of the said act. The whole property is locked up by the injunction; and the receiver, by the terms of the act, is to take possession of all the property belonging to the company at the time of the insolvency or suspension of business which induced the injunction. No other reading can bo given to the act; and to attribute any other intention to the Legislature would be to suppose they did not foresee the consequences which would result from permitting judgments obtained after the injunction to have preference. Judgments would bo confessed after the injunction.

It may be said that a judgment confessed after tbe injunction would clearly be for tbe purpose of preferring creditors, and would therefore be within the provision of the act denying preference to judgments by confession for the purpose of preferring creditors. But suppose a suit regularly commenced by one creditor and proceeding regularly when the injunction was issued} ••and afterwards that creditor proceeded regularly and obtained his judgment in due course, would that judgment have prefer-ence1 ,

If a judgment regularly obtained after the injunction would ■be preferred, would it make any difference whether the suit was ^commenced before or after the injunction! It would not be a judgment confessed; and, if the act contemplated that judgments obtained otherwise than by confession after the injunction should have preference, the language of the act makes no difference between suits commenced before and those commenced after the injunction. '

I am inclined to think that the act contemplated only judgments entered before the injunction.

If a judgment obtained after the injunction might have preference if not by confession &c., then the question as to Moore’s judgment would be whether it is not to be considered as a judgment by confession; and if so, whether it was for the purpose of giving preference.

I think that the orders restraining sales under the judgments should stand; and that the sale should be made by the receiver.

The next question is, how the sale shall be made: 1st, whether subject to the mortgage, or not so subject; and 2d, whether the farm, and the mining tools and implements shall be sold together, pr separately.

As to the mortgages of Janet Blair, their validity is disputed, and cannot be determined now. And in all cases of this kind, where receivers are appointed under this act,. there may be a question as to the validity of asserted liens. Is the receiver to wait until such question can be determined in the regular course of litigation; or is he empowered by the statute to sell irrespective of the incumbrances or alleged incumbrances !

By the 11th section he is to receive and take possession of all the property belonging to the Company at the time of their suspension, and sell the same, and bring the proceeds into court, to he distributed from timo to time, under the order of the court; and the 15th section provides, that in the distribution of the funds the creditors shall he paid proportionally to the amount of their respective debts, except mortgage and judgment creditors, when &c.

It seems to me that the idea was that the receiver should sell the property irrespective of the incumbrances, and pay the incumbrances, according to their priority, out of the proceeds.

Perhaps the court might exercise a discretion and allow the property to bo sold subject to admitted incumbrances, if it were probable that in that way the sale would yield a large sum for distribution among the other creditors, leaving such mortgage an existing lien. In that case the receiver would sell only the equity of redemption; and, whether the holder of that mortgage or some other person bought at such sale, the receiver would convey, not the property, but the equity of redemption only.

If it be clear that the best way to sell, in this case, would be to sell subject to Rockafellow’s mortgage, and if both parties desire it, I should be willing to direct the receiver to sell in that way. If not, let the receiver sell on the understanding that the purchaser is to have a free title.

As to whether the farm and the mining machinery should ho sold separately or together, there are no means of determining; nothing to guide the discretion of the court. No ore has yet been found. If there is no ore there, it is manifest the machinery should ho sold separately from the farm; for if the lands can only he used for farming piirposes, the machinery is of no use there. True, if the probability that ore will he found is so decided that it is clear that further progress should be made, and that whoever should buy would buy with a view of continuing operations for reaching ore, it would be better to sell the machinery with the land. But upon this question sufficient light has not been given to enable me to decide upon the probability of reaching ore.

But one of two courses is left: either to direct the receiver to sell in such way in this respect as he shall, on proper inquiry and investigation, think most advisable, or to act upon the best conjecture I can form myself as to the best mode of sale.

One thing may be said, the machinery, to be taken down and removed, might be of little value. The value of it to a person wanting it to take to some other place would be less by the expense of taking it out of the mine and removing it to such place.

I must suppose that the receiver will act diligently and fairly in inquiring and determining as to the probability of finding ore ; and I am inclined to direct him to sell in such way in this respect as, upon such inquiry and investigation as I have suggested,, he shall think most advisable.

Order accordingly.