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    ANDREW VANSYCKLE v. JOHN RORBACK ET AL.
    1. V., a minor, entered into partnership with N. and S., in Sussex county, and put in $1000 of capital. Before V. came of age the partnership was dissolved, V. receiving his $1000. After the dissolution, V. having removed into Hunterdon county, R. recovered a judgment against the members of the firm, including V., without V.’s knowledge, no process being served on him. R. transferred this judgment to A. Three years afterwards, A. brought an. action on the judgment and recovered a second judgment on it, without the knowledge of V., no process being served on him. A. procured the second judgment to be docketed in the Supreme Court, and caused an execution to be issued to the sheriff of Hunterdon, and to be levied on the property of V. in .that county. On bill filed by V., stating the foregoing facts, and charging combination and fraud, to subject him to the payment of the judgment, an injunction restraining proceedings on the execution was allowed.
    2. The defendants put in answers, and a motion was made to dissolve the injunction.
    3. The injunction was continued to the hearing.
    Oti the 8th of December, 1846, Andrew Vansyckle exhibited his bill, stating that in December, 1839, being then but 19 years old, he formed a partnership in the milling and iron foundry business, with one John Northrup, Jr., and Mahlon B. Staats, (one of the defendants.) in Sussex county, under the name and firm of Northrup, Staats & Co.; that Northrup and Staats then were, and had for sometime previous, been engaged in the business as partners; that at the time the complainant was taken into business with them, it was understood that they each had $2000 invested in the business, and that the complainant then put in $1000, upon the understanding and agreement that each was to receive profits in proportion to the amount of his capital invested; that the business of the firm was thus continued till May following, (1840,) when they opened a store, in connection with the mills and foundry, upon the same capital, and the same arrangement as to the division of the profits of the whole business; that the firm continued in .business until the 1st of October, 1840, when it was dissolved, by mutual consent, by the complainant's selling out his interest to Northrup, with the knowledge and consent of Staats, for $1000, being the amount of capital he put in; that the complainant had not received, and by the terms of the dissolution he was not to receive any part of the profits made by the firm, nor was he to be liable for any of the debts then outstanding against the firm, but the said Northrup, for the said sum of $1000, received all the complainant’s interest in said firm, and was to pay all the complainant’s liabilities on account thereof; the complainant losing his entire services and the interest on the said $1000, for the whole period of his continuance in the firm.
    That at the time of the dissolution the firm was amply able, out of its property, to discharge all its liabilities.
    That when he was applied to to become a partner, and when he became a partner, Northrup and Staats were both apprised that he was a minor.
    That during the continuance of the partnership, debts were eontracted by the firm, some of which have not been paid ofi by Northrup and Staats, and some of which have since been demanded of the complainant.
    That the complainant has lately been informed, that John Rorback pretends to have held a claim against said firm, for s debt contracted during the continuance of the said partnership, now amounting, with costs, to upwards of $400, and that Rorback recovered a judgment against said firm, on account of said claim, in the Circuit Court of Sussex, on the 15th of August. 1843, for $331.76, damages and costs, but that said judgment «vas recovered without the knowledge of the complainant, and without bis having any process served on him, or any notice or knowledge of ihe same whatever, or of the existence, at that time, of the said debt.
    That the complainant has been informed that some time after line recovery of the said judgment, at what time he cannot state, Rorback transferred it to Ebenezer Aber, whether with or without consideration the complainant is unable to state; and that, without any notice to the complainant, or demand of payment, Aber commenced a suit on said judgment, in the name of Rorback, in the Circuit Court of Sussex, against the complainant, with the said Staats, (Northrup having previously died,) and that on the 4th of August, 1846, he recovered judgment thereon, for $390.92 debt, and $34.37 costs.

      That no process in said suit was served on the complainant, and that he had no notice thereof till. some considerable time after the said judgment was entered, or any knowledge of the existence of the first-mentioned judgment.
    That shortly after the entry of said judgment in the Circuit Court of Sussex, Aber procured the same to be docketed in the Supreme Court, and immediately after caused an execution to be issued thereon, out of the Supreme Court, against the complainant, together with said Staats, and placed in the hands of the sheriff of Hunderdon, returnable to October Term, 1846, by virtue of which execution all the property of the complainant has been levied on.
    That Northrup died in March, 1845, intestate, in Sussex, and that Azariah Davis is the administrator of his est-ate.
    That Staats still resides in Sussex, and has a large amount of property in .said county, and has no property, as the complainant believes, in Hunterdon; nor is there, as the complainant believes, any property in Hunterdon, belonging to the estate of Northrup, nor any property in Hunterdon on which to levy said execution, except the property of the complainant.
    That immediately after the dissolution the complainant removed from Sussex to Warren county, where he remained about six months, when he removed to Hunterdon, where he has ever since resided.
    That the first notice he had of the existence of-said debt, or of any pretence that such debt was due to Rorback or Aber, was the service of the said execution by the sheriff of Hunterdon, on the 26th of August, 1846, no notice of any of the said proceedings concerning the same having been given to him, and all knowledge thereof seeming to have been purposely withheld from him, in order that he might not have the benefit of a plea of infancy, to which they well knew he was entitled, or of any other defence; and thus, before he should be aware of said claim or any proceedings thereon, to heap judgment upon judgment on said claim, for the purpose of entangling and embarrassing the complainant, and the more effectually to prevent and disable him from setting up the legal and equitable defence which they well knew he might otherwise do.

      That Eorback is not an original creditor of the said late firm; but that lie received the note on which the said judgment was founded, by assignment, whether for a valuable consideration or not the complainant is ignorant, from one George H. Nelden, of Sussex, to whom, as the complainant is informed, it was given by said firm, for about §200 ; and that at the time he must have received said note, the complainant did not reside in Sussex, and had no property there to which Eorback could have looked for the satisfaction of the said claim; and that lie must then have looked to the other members of said late firm for the payment of the same, as must also have been the ease with Aber, at the time he received the transfer of said judgment from Eorback.
    That if said transfers were bona fide and for a valuable consideration, Eorback and Aber must have looked to the property of the other parties, in Sussex, and not to the complainant, who, with all his property, was in the county of Hunterdon.
    Thai Nelden was well acquainted with the complainant, and had been almost from the complainant’s infancy.
    That the complainant had been in the employ of Nelden, in ids store, for a considerable time, and had left there bat a short time previous to his entering into the said partnership with Norihrup & Staafcs; and tiiat Nelden well know, when he received the said note, that the complainant was a minor.
    That Eorback and Aber are both residents of Sussex, and resided in the neighborhood of the complainant, and were well acquainted with him, and had been for years, and, the complainant charges, well knew that he was a minor during the whole period of his continuance in the said partnership.
    That at the time Eorback obtained the said judgment against the said firm, there was abundance of property of said defendants in Sussex, out of which the amount thereof might have been made, upon which the execution might have been immediately levied, if said judgment was not then paid; and that, if it was not then paid, the complainant cannot conceive why the money was not made out of the property of the said firm at that time, or the complainant informed of said debt and requested to pay it, unless, as the complainant charges the truth to be, the whole matter was a contrivance between Eorback and Northrop and Staats, for unjust extortion from the complainant when no debt existed, and which he was not legally or equitably liable to pay. That this is not the first effort to obtain money from the complainant under these pretences.
    That on or about November 12th, 1844, one Aaron A. Ackerson obtained a judgment, in the Supreme Court, against the said late firm, on some assigned claim, for $656 damages and $37.08 costs, which was also obtained without the knowledge of the complainant, or the service of any process on him, or any notice to him. That execution of said judgment was issued against the complainant, and sent to the sheriff of Hunterdon and levied on the property of the complainant; and that the complainant paid the said execution, amounting to $731.90, out of his own estate, without having ever received any value for the same, which he paid rather than suffer an expensive litigation for the purpose of avoiding it; and, since Ackerson’s success, (whose proceeding, the complainant charges, was at the instance and by the aid and connivance of Staats,) the said Rorback and Aber, who, the complainant charges, are now proceeding with the assistance and for the benefit of Staats, are encouraged in the prosecution of the present attempt further to extort from the complainant.
    That he has no knowledge of the existence of any such debts, and that if they do exist, he is not liable for them.
    He charges that this mode of proceeding against him has been adopted for the purpose of defrauding him and obtaining judgments against him without his knowledge, that he might be deprived of any defence; and that it is done by the connivance and consent of Staats with the persons prosecuting; that otherwise there could be no object in their prosecuting thus secretly, and studiously seeming to withhold all knowledge thereof from the complainant, and multiplying judgment on judgment which had secrelty lain for years without the complainant’s knowledge, when the complainant and Staats were both in a situation to discharge the same at the time of the obtaining thereof; and when the complainant’s residence has been known and public ever since he left the county of Sussex.
    He says he is advised that the said judgment obtained by Rorback against him is not valid against him, as he could not legally be condemned unheard, though he were indebted on a joint contract, unless he had an opportunity to make his defence:
    That so much time had elapsed before he had any knowledge of the existence of the said suit or judgment by Rorback as to deprive him, at law, of taking any steps to get in his defence, or to set aside the said judgment.
    He charges that there is nothing due Aber or Rorback from the said late firm, and repeats the charge that the said proceedings arc by the contrivance and at the instance of Staats.
    The bill prays that the said judgment may be declared to be void as against the complainant, and proper to be relieved against; and that Rorback, Aber1, and Staats may be enjoined from further prosecuting the said judgments, or either of them, against the complainant; and that the sheriff of Hunterdon may be restrained from selling any property of the complainant by virtue of the said execution in favor of Rorback for the use of Aber; and that the plaintiff in said execution may be confined to his remedy against Staats and the estate of Northrup; and for further relief.
    Rorback, Aber, Staats and the administrators of Northrup are made defendants.
    The injunction prayed was allowed.
    Rorback, Aber, and Staats have put in separate answers.
    The answer of Rorback admits that, on the 15th of August, 1843, he recovered a judgment against Northrup, Staats, and the complainant, in the Sussex Circuit, for the amount stated in the bill; and says that this judgment was recovered for the amount then due upon two notes made by the said firm, both signed with the partnership name; one, dated April 1st, 1840, for $29, payable one day alter date, to Richard Gray or bearer; the other, (iated June 24th, 1840, for $233.62, payable one day after date, to George H. Nelden or bearer; that said suit was commenced by summons, returnable to January Term, 1843, of said court, which, he admits, was served by the sheriff of that county on Northrup and Staats, but not on the complainant, who, he is informed and believes, was not then residing in the said county ; and the said sheriff returned, on the said summons, that the complainant could not be found in his county; that he has no knowledge, except what he has derived from the bill, whether the complainant knew of the pendency of said suit or not; but he states, and charges the truth to be that, before the suit was commenced, he several times spoke to Northrup, Staats, and the complainant in relation to said notes, and informed them that he held the same, and requested them to pay the same; and that when the complainant was so spoken to by him, he made no objection against the said notes, nor against the justness or honesty of the debt due thereon to him; nor did he then, or at any other time, say or intimate to this .defendant, that he was a minor when the said notes were made.
    He says that, on the 18th of February, 1846, he assigned the said judgment to Ebenezer Aber, of Sussex, by. deed of assignment as follows — (giving the assignment literally.) It is in substance as follows: “ Whereas he, in the term of August, 1843, or of some other term in the Sussex Circuit, recovered a judgment against Northrup, Staats, and Andrew L. Vansyckle for $300.64 damages and $31.12 costs, more or less. Now this writing witnesseth that, for the consideration of the amount due thereon to him paid by Ebenezer Aber, he assigns to him, his executors, &c., the said judgment and all moneys due or to become due, and the benefit of all proceedings by execution or otherwise had or to he had or done thereon ; ” and he constitutes Aber his attorney irrevocable, in his name, to Aber’s use, to do, for the recovery and settling of the said damages and costs, everything that he could do; covenanting to do nothing whereby Aber will be defeated in the recovery of the moneys due on the said judgment, but on the express condition that all costs and expenses which may accrue by reason of anything done in the premises shall be paid by Aber, and that he, Rorbaek, shall not be liable for any part of the same.
    He says that, whatever money was paid for the said assignment, was paid to David Thompson, Esq., who, as his attorney, had brought the suit, and drew the assignment of the judgment; and this defendant does not know what amount was paid to him, but believes the whole amount of said judgment debt, interest, and costs, was received by said Thompson, inasmuch as he paid this defendant the whole amount of debt and interest due on said judgment, to wit, $300.64, the debt due this defendant, and also the interest thereon from the 15th of August, 1843, until it was paid to this defendant, and informed this defendant that he had received the costs.
    That he does not know of his own knowledge who paid to Thompson the money for the said assignment; that Thompson, as his attorney, had his entire confidence, and he left the whole management of the business to him, Thompson, and this defendant gave himself no further concern about it, except to receive what was doe to himself; but this defendant believes that he was informed by the said Thompson that he had received the money for the said assignment from the attorney of Ebenezer .fiber.
    That after he received the money due him as aforesaid, he gave himself.no further concern about the said judgment, or any subsequent proceedings thereon, but admits that he has been informed that a subsequent judgment was recovered thereon, in his name, for the use of said Aber, in the Sussex Circuit, against Staats and the complainant, (Norfchrup having previously died,) and was docketed in the Supreme Court, and an execution issued thereon to the sheriff of Hunterdon.
    Ho admits that Staats still resides in Sussex, but he has no knowledge of the amount of his property, nor whether there is property in Hunterdon belonging to Staats or the estate of Northrup.
    He says that the said notes were, on the 15th of September, 1810, and while the said partnership was still in existence, assigned to him by the said Tolden, and the payment thereof guaranteed by him to this defendant; that this defendant received them from him for his accommodation, and at his particular request, and advanced him the money thereon, upon the representation by him, and the belief of this defendant, that they were valid bona fide claims against the said firm.
    He denies that when he received the said notes from Nelden he knew that the complainant was a minor, and charges and insists that he never heard or knew that the complainant was a minor while he was a member of said firm, until long after he had so received the said notes; but at what time he heard of it he does not now recollect.
    He says that when he recovered his judgment, as aforesaid, in August, 1843, Northrup had considerable property in Sussex, but that the same was encumbered at that time for greatly more than its value by prior judgments and mortgages, and that, at the same time, Staats had considerable property in Sussex, which was also encumbered by judgments prior to that of this defendant, although this defendant believes that if he had pressed a sale of Staats’ property it would have satisfied his judgment ; but this defendant had no desire to press or crowd Staats, or to sacrifice his property at sheriff’s sale, and at his urgent request delayed enforcing the judgment, in order that he might have an opportunity the more easily to pay it.
    He denies that there was any contrivance whatever between him and Northrup and Staats, or either of them, for the purpose of extorting in any manner from the complainant, or oppressing him in any way, or compelling him to pay a debt that he was not bound to pay.
    That this defendant fully believed his debt was a just one, and justly due to him from all the said partners, and proceeded in the collecting thereof in the same manner that he would in any other case.
    He denies that, in executing the aforesaid assignment, nor in any of the proceedings connected with the judgment so assigned, he was actuated by any desire to extort money from the complainant, or acted with the assistance or for the benefit of the said Staats; his only desire was to collect the debt honestly due to himself; and insists that, for that purpose, he had a perfect right to assign the said judgment as he did; and that since the said assignment he has given himself no concern about the same, and had no part whatever in any of the subsequent proceedings, and is entirely ignorant at whose instance and by whose contrivance and for whose benefit the same have been had.
    He says he has no knowledge whether the said judgment has been paid or not since the said assignment; but he charges that at the time of the assignment there was due and unpaid upon said judgment the amount so paid as aforesaid to the said David Thompson for the said assignment.
    The answer of Aber states that, on the 18th of February, 1846, Rorback assigned the said judgment to him, by deed of assignment in the words and figures following (setting out assignment.)
    He says he was not present when the said assignment was executed nor delivered, nor when the money for the same was paid ; that he is advanced in years — being upwards of seventy — quite lame and infirm, and but seldom goes from home, and lives about seven or eight miles from Newton, where Rorback lives, and where the said business was transacted; that for some years past, M. Ryerson, Esq., of Newton, has acted as the attorney of this defendant, and transacted all his business requiring professional assistance, and that the money to pay Rorback for the said assignment was placed in the hands of said Ryerson, who acted in the matter at the request and as the attorney of this defendant, and was requested, by this defendant, to pay the money to Rorback, and procure an assignment from him of the said judgment to this defendant. And this defendant kept no memorandum of the amount of money so deposited with the said Ryerson, or of the amount paid by him, and cannot therefore state, from his own recollection, the exact amount paid, but was informed by the said Ryerson, and so charges the truth to be, that he paid to David Thompson, the attorney of Rorback, on the delivery of the .said assignment, the whole amount of the said judgment debt, interest, and costs.
    That before the execution of the said assignment, Staats called on this defendant, and represented that Rorback was pressing the payment of the said judgment, and would sell his property unless the amount of the judgment was soon paid to him; and further stated to this defendant that the said judgment grew out of the partnership debts of the said firm, and that, in justice, the complainant should pay the same, inasmuch as he (Staats) had already paid large sums of money on account of the debts of the said firm, and the estate of Northrup was insolvent, and that the complainant was bound to pay his proportion of the said firm debts, and requested the defendant, as his friend, to advance the amount of the said judgment to Rorback, and take an assignment thereof from him, and endeavor to collect the same out of the complainant; and this defendant, believing the representations of Staats, and believing that it was just and right, that the complainant should pay the said judgment, consented to to take an assignment thereof, and to collect the same, if possible, from the complainant, in order to relieve Staats from the payment of what this defendant believes it was unjust for him to be compelled1 to pay.
    That, after the said assignment was executed, he instructed his said attorney to go on and collect the said judgment, if possible, from the complainant, and that a suit was brought by his said attorney, upon the said judgment, in the said Circuit Court, in the name of Rorback, for the use of this defendant, against the complainant and Staats (Northrup being then dead), the summons in which was returnable to the term of May, 1846, of said court, and was returned served on Staats, and “not found” a^ to the complainant, in which suit judgment was recovered on the 4th of August, 1846, for $390.92 debt, and $24.07 costs.
    He admits, that before bringing the last-named suit, he gave no notice of the said claim to the complainant, nor demand payment thereof from him, and believes his said attorney did not, either.
    He says he has no knowledge, except from the bill, of the time when the complainant was first informed of the existence of either of the said judgments.
    He admits that the last judgment was, shortly after it was recovered, docketed in the Supreme Court, and that a ji.fa. was issued thereon to the sheriff of Hunterdon, returnable to October Term, 1846, of that court, and that the said sheriff was directed to levy upon all the property of the complainant, and sell it to satisfy the said judgment.
    He admits that Northrup died in the spring of 1845, intestate, and charges that he died largely insolvent, and that his estate will not pay five per cent, of his debts.
    • He admits that Staats still resides in Sussex, and owns considerable property there, but to what amount it is encumbered, he does not know; and he believes that there is no property in the county of Hunterdon belonging either to him or to the estate of Northrup.
    He denies that, he ever knew or heard that the complainant was a minor when the said notes were given, or that he had any defence to the judgment assigned to him, till since the subpoena and injunction in this suit were served upon him ; but insists and charges, that when the judgment was assigned he believed it was a regular and valid judgment, and binding on the complainant and Staats, and had no suspicion to the contrary; and he denies that he purposely withheld from the complainant any knowledge of the said proceedings, in order to prevent him from setting op ¿he plea of infancy, or any other defence to the said judgment.
    He says he is advised by his counsel, that in a suit on the first judgment, a plea, by the complainant, of infancy when the said notes 'were given would have been no defence, he being of full age when the said first judgment was recovered, as appears by his bill ; and that, as the first judgment was recovered before the adoption of the present constitution, and Northrup was dead when the same was assigned, he could not have had the said first judgment docketed ie the Supreme Court.
    He admits that in August, 1843, Staats had considerable property in Sussex; but says he has been informed and believes it was encumbered by prior judgments, but to what amount he does not know; and that he is informed and believes that Rorbaek delayed selling the property to Staats, to satisfy his said judgment, on account of the urgent solicitations of Staats, so as not to distress him, or cause his property to be sacrificed at sheriff’s sale) Rorbaek having no immediate want of money ; and this defendant knows of no other reason for the delay ; and from the information he has received, denies that there was any combination or contrivance between Rorbaek and Northrup and Staats, or either of them, for the purpose of unjustly extorting money from the complainant.
    He says that he never knew or heard, till since the filing of the complainant’s bill, of the recovery of the judgment by A. A. Ackerson, mentioned in the bill, or of any of the subsequent proceedings thereon; and that he does not know at whose instance and by whose aid or contrivance the said proceedings- were carried on. He denies that he has ever received any assistance from Staats in any of the aforesaid proceedings; and denies that he ever received from Staats any money whatever, either to procure the said assignment, or to pay the expenses of any of the proceedings which have been had on said judgment since the assignment; but he admits that the judgment so recovered in the name of Rorback for his use, and the subsequent proceedings therein, are so far for the benefit of Staats, as that if the complainant should be compelled to pay the whole judgment, Staats would be relieved from the payment of all but what his fair proportion would be, in a settlement between him and the complainant of the said partnership transactions and the debts growing thereout.
    He denies that the proceedings so as aforesaid had in his behalf have been had for the purpose of defrauding the complainant, or of depriving him of any defence he might have to the said judgment; but they have been had for the purpose already stated ; and he supposes and believes, that they have been had with the knowledge and consent of Staats.
    He says he does not know of his own knowledge how much was due on the judgment so assigned to him when it was assigned ; but from representations made to him, he believes and charges that the whole of it was then due and unpaid; and he expressly denies that any part of it has ever been paid to him by Staats or any other person, and insists that the whole amount thereof is due to him.
    The answer of Staats says that for some time prior to December, 1839, he and Northrup had been doing business in Lafayette, Sussex county, as partners in the milling and foundry business ; and that in December, 1839, the complainant was taken into the firm as a partner, and the same business was continued under the name and firm of Northrup, Staats & Co.
    He admits that the complainant invested $1000, and that each partner was to share in the profits in proportion to his share of capital invested.
    He admits that in May following the parties opened a store, in connection with their other business, which was carried on upon the same capital, and under the same arrangement, as to the division of the profits.

      He denies that he then knew that the complainant was a minor ; and whether Northrup knew it or not he does not know ; tnat, on the contrary, he supposed and believed that the complainant was then of age; and, to the best of his knowledge and belief, he never knew or heard of the complainant’s being a minor while a member of the firm, until long after the firm was dissolved.
    He says that, on or about October 1st, 1840, Northrup represented to him that the complainant was desirous to dissolve the partnership in such a manner that he, the complainant, might continue the store alone, and leave Northrup and this defendant to continue the rest of the business; but that this defendant utterly refused to do it, and insisted that he would leave the firm himself, and accordingly sold out his interest to the complainant and Northrup, and, by the agreement between them, this defendant was to receive back his capital, and $500 for his share of the profits, and the other two were to take the assets of the firm and pay all its debts; and he says that, in two days after he had made the said arrangement and sale, some arrangement was made between Northrup and the complainant, by which the complainant sold out his interest to Northrup; but what the particulars of the said sale and arrangement were he did not then and does not now know, not having been present at nor a party to it.
    He admits that, at the dissolution of the partnership, the partnership property was sufficient to pay the partnership debts.
    He says that, after he made the said sale, the other parties took into their custody and possession the books, papers and assets of the firm, and afterwards, on the 10th of February, 1841, the complainant gave to this defendant some accounts which had belonged to the firm, to collect, amounting to $172.57, to be applied, when collected, to what was so agreed to be paid to this defendant when he sold out, of which accounts he has received $108.36; and that this is all he received of the amount so due him on the dissolution of the firm.
    He says that, on or about May 11th, 1843, G. H. Coursen and E. B. Woodruff recovered a judgment in the Supreme Court, against the firm 'of Northrup, Staats & Co., for $444.75 damages an 1 costs, on which an execution was issued to the sheriff of Sussex, and that he paid off the said judgment, with interest, costs and execution fees, amounting, when paid, to $488; and that, on or about May 23d, 1843, one J. B. Marsh recovered a judgment, in the Common Pleas of Sussex, against the said firm, for $191, on which an execution was issued to the same sheriff, and that he paid off that judgment also, amounting, when paid, to $214.92; and that he has, also, since the dissolution, paid off a note given by the firm to Jos. Strader, for $55, dated August 24th, 1840; and has, also, since that time, paid other debts of the .said firm, the amounts of which he cannot now ascertain, not being able to find the receipts for the same.
    He admits that Rorback, in August, 1843, recovered a judgment in the Circuit Court of Sussex, against the firm, for the amount stated in the bill; and says that, before that suit was commenced, Rorback spoke to him about the notes on which it was brought, and that, soon afterwards, and before the suit was brought, he, this defendant, spoke to the complainant on the subject, and that the complainant did not at that time say or intimate that he was a minor when the said notes were given, or that there was any defence to the notes, but seemed to know all about them and for what they were given, and replied that Rorback had better sue on them and collect the money from Nor-t'nrup as soon as he could.
    He says that, in January or February, 1846, he, this defendant, being pressed by Rorback for the payment of the said judgment, and not being able to obtain any further delay from him, applied to Aber and requested him to pay the amount of said iudgment to Rorback and take an assignment of it, and collect it, if he could, from the complainant; and stated to him that it grew out of the partnership debts of the said firm, and informed him that this defendant had paid a large amount of the said debts, when, according to the terms of the dissolution, he was not bound to pay any of the debts; but that the complainant and Northrup were bound to pay them; and thereupon Aber consented to take an assignment of the said judgment, and this defendant is informed and believes that the same was afterwards assigned to him by Rorback; but what he paid for it this defendant does not know; but he denies that he ever paid anything to Aber for the purpose of procuring the said assignment.

      He admits the second judgment, in the name of Eorback for the use of Aber, against the complainant and him, and says he has been informed and believes that the same has been docketed in the Supreme Court, and an execution issued thereon to the sheriff of Hunterdon.
    He admits that he still resides in Sussex, and has property there sufficient to pay all his debts, but has none in Hunterdon, and believes there is none there belonging to the estate of Northrup.
    He says he does not know when the complainant removed from Sussex, nor when he removed from there to Hunterdon; but he insist and charges that, before Eorback commenced the first suit, he, this defendant, informed the complainant of the existence of the debt for which it was brought.
    He says that soon after the recovery of the said first judgment, Northrup’s property was sold to pay prior judgments, and that Northrup died largely insolvent, and that the delay given by Eorback to this defendant was at his, this defendant’s, solicitation, to prevent a sacrifice of his property, and he denies that there was any collusion between him and Eorback or Northrup, for the purpose of extorting money from the complainant,,
    He admits that A. A. Ackerson, on the 12th of November, 1844, recovered a judgment in the Supreme Court, against him and the complainant and Northrup, for §693.40 damages and costs, which judgment was recovered on three notes given by the said firm, two of them to Paul Ackerson, and the other to the executors of his estate, the latter for grain sold to said firm, and the two former for money lent to the said firm, and that A. A. Ackerson was executor of the said P. Ackerson, deceased, in which suit the summons was served on him, and he believes, on Northrup, but not, as he believes, on the complainant, who then lived in Hunterdon, and that this defendant and Northrup, knowing the debt for which the suit was brought to bo just, suffered judgment to go by default, and he has heard and believes that the said judgment was paid by the complainant on an execution issued to the sheriff of Hunterdon, after the complainant had, without success, applied to the Supreme Court to open said judgment and allow him to plead infancy

      He admits that, before the said suit was brought, A. A. Ackerson called on him to pay the said notes, and that he told Ackerson he ought to collect the same from the complainant, for that he, this defendant, had paid a large amount of the debts of the said firm, which, as between him and his partners, he was not bound to pay, and the complainant had not, so far as this defendant knew, paid any of the said debts; but he denies that the mode of proceeding taken by Ackerson to collect the said notes was at his instance, or by his aid and contrivance, any further than that he told Ackerson, as has been already stated, that he ought to collect the said notes from the complainant, and when served with the summons in said suit, knowing the debt to be justly due Ackerson, allowed judgment to go by default, and he denies that he has rendered any assistance to Aber in the proceedings so as aforesaid adopted by him, but he admits that they are so far for his benefit that if Aber collects the amount of the said judgment from the complainant, he will not be compelled to pay it to Aber, and it may be the means of inducing the complainant to make a full and fair settlement of the said partnership affairs and debts with this defendant, which he is anxious to have done, and which he has frequently requested the complainant to do, without success.
    He denies that, so far as he knows, the proceedings had as aforesaid by Aber have been adopted for the purpose of defrauding the complainant, or of unjustly extorting money from him, or of obtaining judgment against him without his knowledge, that he might be deprived of any defence, and if any such motive existed on the part "of any person, he is ignorant of it; but he admits he knew that Aber intended to collect the said judgment from the complainant, if he could, but did not know what mode of proceeding he would adopt to do it.
    He says that the notes on which the judgment of Rorback was recovered are in Northrup’s writing, and signed with the partnership name, in Northrup’s writing, but he does not know for what they were given, or whether Northrup or the complainant had ever paid anything on said notesoron the judgments recovered thereon, and he has not paid anything himself on said notes, or on the judgments since recovered thereon, either to Rorback or Aber.

      He says he does not know, except by the bill, whether the complainant, at the time said notes were given, was a minor, but he insists that during the whole time of the partnership he supposed and believed that the complainant was over twenty-one, and that the people generally, at and in the vicinity of Lafayette, entertained the same belief; and he says he does not know whether or not the knowledge of said suits in the name of Rorback was purposely or by design withheld from the complainant, or whether or not the mode of prosecuting the complainant was adopted in order, as much as possible, to prevent the complainant from obtaining any knowledge of said proceedings until an execution should be served on him.
    It was shown, on the argument, that the complainant was born in March, 1820.

      S. G. Potts moved to dissolve the injunction.
    He cited 1 Green’s Ch. 163, 172; 8 Eng. Cond. Ch. Rep. 65; 2 Myln and Keen 423; 2 Harrison’s Rep. 270; 5 Taunton 856; 8 Ib. 35, 508; 7 Eng. C. L. Rep. 49; 2 Kent’s Com. 239.

      A. Wurtz and W. Halsted, contra.
    They cited 7 Cranch 326; 1 South. Rep. 93; Smith on Contracts 101, 206, 7; Stra. 1083; 5 Barn, and Ald. 147; 2 Maul, and Selw. 205; 2 Story’s Eq. §§ 895, 6; 5 Howard’s Rep. 43; 4 Taunton 468; 3 Ib. 307; 3 Esp. Rep. 76, 426.
   The Chancellor.

The injunction will be continued to the hearing.

Motion denied.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    THE SOCIETY FOR ESTABLISHING USEFUL MANUFACTURES v. THE MORRIS CANAL AND BANKING COMPANY.
    1. “The Society for Establishing Useful Manufactures,” incorporated in 1791, located at the falls of the Passaic, pulled down a gate and waste-way of the canal of “ The Morris Canal and Banking Company,” incorporated in 1824, and discharged the water from the canal into the Passaic above the falls. The canal company repaired the breach and filed their bill against the society for an injunction, which was granted. The society filed a cross-bill, setting up an agreement entered into between the canal company and them, in 1826, for the discharge of water from the canal into the Passaic above the falls, and stating that the canal company, in breach of the agreement, had nailed down the gates of the waste-way and stopped the flow of water from the canal to the river, and thereby broke the agreement; and praying a de-cree for the specific performance of the agreement. -
    2. A demurrer to the bill was overruled.
    The bill and cross-bill are sufficiently stated in the case of The Morris Canal and Banking Company v. The Soeiety for Establishing Useful Manufactures, reported ante, Vol. I., page 203.
    A demurrer was filed to the cross-bill.

      W. Hoisted, in support of the demurrer.
    He cited Story’s Eq. Pl., §§ 678, 631; Hopkins’ Rep. 84 ; 8 Cowen 361; 4 Hen. and Munf. 423; 2 Mad. Ch. Rep. 356; Ambler 452; 1 Bro. Ch. 125; 1 P. Wms. 371; 3 Atk. 276; 2 Ves., Sen., 193; 1 Coxe Ch. 102; 2 Ib. 4.

      W. Pennington and P. D. Vroom, contra.
    They cited Story’s Eq. Pl., §§ 391, 394, 413, 414, 415, 419; 12 Pick. Rep. 34, 169; Drury on Inj. 237, 9, 245, 298; 10 Ves. 193; 7 Ib. 307; 2 Atk. 83; 1 Ves., Sen., 543 ; 1 Ves., Jun., 140 ; 2 P. Wms. 266; 3 Ves., Sen., 414; 3 John. Ch. 287 ; Drury on Inj. 298 ; Story’s Eq. Pl., §§ 443, 628, 391; 2 Scho. and Lef. 199; Mitf. Pl. 81; Cooper Eq. Pl. 85, 86, 216 ; 1 Ves., Jr., 210, 213.
   The Chancellor.

The demurrer will be overruled.

Order accordingly.


text:
    GOOLD HOYT v. THE BRIDGEWATER COPPER MINING COMPANY AND OTHERS.
    1. A bond and mortgage given in fulfillment of a prior written agreement for the sale and purchase of property, at a price stipulated, to be paid in a stipulated manner, with interest, the interest to be paid half yearly, in advance — held not to be usurious.
    2. A new bond and mortgage were substituted for the first, dispensing with the payment of interest in advance. The Chancellor said that if he could think the first usurious, he should hold that such a contract might, by subsequent agreement of the parties, be freed from the vice.
    3. Acts of a subsequent board of directors of a corporation, which were held to be a recognition and sanction of a mortgage given by a former board.
    On the 13th January, 1840, Goold Hoyt filed his bill, stating that, on the 15th December, 1836, “ The President and Directors of the Bridgewater Copper Mining Company,” being indebted £0 him in $86,378, for stock in the Bridgewater copper mines, together with certain lands and premises in the township of Bridgewater, in the county of Somerset, before then sold, assigned and conveyed to the said “The President and Directors of the Bridgewater Copper Mining Company,” being the same premises described in the mortgage set forth in the bill, for securing the payment of the said sum, with interest, to the complainant, did, on the day and year aforesaid, make and execute, under their corporate seal, to the complainant, their bond of that date, conditioned for the payment of the said sum on or before the 15th December, 1838, with interest from the date thereof, to be paid semi-annually, and, at the same time, for the better securing the payment of the said sum according to the condition of the said bond, did make and execute, under their corporate seal, their mortgage, dated the said 15th' December, 1836, by which, in consideration of the said sum, they conveyed to the complainant, in mortgage, the premises in the bill described.
    That the execution of the said mortgage was, on the said 15th December, 1836, duly acknowledged by the said company, by their president, Peter I. Stryker, before James Taylor, Esq., a judge, &e., and that the said mortgage was duly recorded on -the 12th of April, 1837.

      The bill prays foreclosure, &e.
    To this bill the company put in their answer, on the 14th .August, 1840, by which they say that said bond and mortgage were not given by the said company, nor by any person authorized to give and execute them on their behalf, or to affix the seal of the said corporation thereto ; that the persons calling themselves the board of directors, by whose order the same were given, were not lawfully elected directors, nor had they, at the time, any power to execute the same; that the same were given by the order of Peter I. Stryker, James S. Nevius, James S. Green, and William Thompson, alleging themselves to be a board of directors of the said company, when they were not, at Ihe time, duly elected directors; that there had been no election by the stockholders for three years and upwards, and that part of said pretended directors had never been elected by the stockholders, pursuant to the charter, but had been appointed by other directors, whose terms of office had long before expired.
    They further say that, even if the said persons had been duly chosen directors, and as such, were authorized to bind the company, yet ihat it could only be done in the manner prescribed by the charter and by-laws of the company.
    That the charter provides that a majority of the directors, for the time being, shall form a board or quorum for business, and have power to make such by-laws as to them shall appear needful and proper, touching the management and disposition of the stock and effects of the corporation ; that certain by-laws were made, by which it is ordained, among other things, that there shall be a regular meeting of the board, at Somerville, on the first Tuesday of January, and at such place and in such state as may be designated by the president for the occasion, on the first Tuesday of April, July, and October, in every year ;• extra meetings may be held, at such place as may be designated by the president, whenever, in his judgment, the same may be deemed necessary, or whenever a requisition shall be made on him by any two of the directors to call the same. And that by the said by-laws, it is further ordained that it shall be the duty of the secretary to issue written summons for, and to attend all regular meetings of the board, and to keep a minute of the proceedings' of the same, to be by him recorded in a book to be by him provided for the purpose.
    And the defendants say that on the said 13th December, 1836, four persons claiming to be directors, viz., the said Stryker, Nevius, Green and Thompson, casually met in New Brunswick, and after pretending to make a certain compromise or arrangement with the complainant of a suit then pending in this court, agreed to make, and did make to the complainant, the said bond and mortgage; that said meeting was not a regular meeting of the board, according to the charter and by-laws, nor an extra meeting on the call of the president, or designated by him on a requisition of any two of the directors. That no written notice was ever given of said meeting to the other members of the board; but that'the proceedings were had in the absence of three of the directors, and without their knowledge or consent; and the defendants insist that the corporation is not bound by the unauthorized proceedings of'four persons, styling themselves a board of directors, and acting without notice to others equally interested and clothed with equal rights and privileges; that though by the charter, four directors, being a majority, form a quorum, yet that the power to act as a board is confined to such times as they shall be lawfully convened for business, either at a stated meeting, or at an extra meeting lawfully convened by the president, either on his own judgment, or on a requisition of two of the directors, and on written notice given to all the members of the board; and they insist that the said bond and mortgage, given as aforesaid, are void. And they say that the complainant, who was present at the giving thereof, was well acquainted with the charter, by-laws and situation of the company, having formerly been president of the board; and that the whole transaction was without authority, and a fraud on the company.
    The defendants further say that the intent and meaning of the charter is, that, the directors shall be stockholders; that at the time when the bond and mortgage were given, two of the persons present, claiming to be directors, were not stockholders, but were strangers, and had never been elected by the stockholders.
    Tb«y deny that at the time of the execution of the said bond and mortgage, the company were indebted to the complainant, in any such sum, for stock in the Bridgewater copper mines and for certain lands in Somerset before then sold, assigned and conveyed to the company; and they deny that said stock and property constitute the consideration for which the said bond and mortgage were given ; but they say that the immediate consideration thereof was á certain other mortgage on the same property, given by the company to the complainant, on the 10th October, 1830, for $65,000, which they say was usurious and void ; that at the time of the giving thereof, the complainant demanded and coi’ruptly and usuriously received, on the whole sum mentioned therein, the interest for six months in advance, at 6 per cent.; by reason whereof the said mortgage and contract were void in law.
    And the defendants say that after the said mortgage became payable, the complainant instituted a suit in this court, to foreclose the said mortgage; and that the defendants, in bar of that suit, set up and- insisted that the said mortgage was void for the reasons aforesaid; and that while the matter was pending, the complainant, under various plausible pretences, induced the said four persons claiming to be directors to settle and compromise the said suit; and that thereupon, the said Stryker, Nevius, Green and Thompson, without any meeting of the board having been lawfully convened, in the absence of the other directors or the persons claiming to be such, and without consultation with or direction from the company or stockholders, did,. on said December 13th, 1836, make a settlement of the said suit, and on that settlement did execute to the complainant the said bond and mortgage mentioned in his bill, in fraud of the rights of the stockholders of the company.
    And the defendants say that the last bond and mortgage were given for the principal and interest of the former bond and mortgage, and that the object of the complainant in staying said suit and compromising the same was to obtain a new security, in the expectation and hope thereby to avoid the legal defence of . the defendants. But the defendants insist that the last bond and mortgage, being given in lieu of the former, and founded on the same illegal consideration, are void; and they nray that they may have the same benefit from the answer, in their behalf, as if the said matter had been specially pleaded in bar.
    And they say that when the said bond and mortgage of October, 1830, were given to the complainant, he was a member of the company and president of the board; that it was agreed by the board to raise money by loan to carry on the mining operations of the company, and that for that purpose they gave the bond and mortgage to the complainant for $65,000; and he, instead of advancing the money or any part thereof, gave to the company a promissory note of Peter I. Stryker, to the said amount, payable on demand. And they say they are informed, and they allege, that there was no such sum of money due from said Stryker to the complainant; that no part of said money was paid or raised on said note, and that the said note was, afterwards, in July of the following year, given up and restored to the said Stryker. And they say that the whole proceeding was an artifice and contrivance on the part of the complainant, the real object of which was, under pretence of aiding the company by a loan of money, to speculate on the necessities of the company, and obtain a large and productive lien on the property. And the defendants submit that, independently of the fact of usury in the first contract or mortgage, the same was inequitable, without just consideration, a fraud on the company, and especially on those who then were, or might thereafter be interested in the said company; and that the mortgage on which the present suit is founded, being a mere substitute for the former one, and having no other or better consideration, stands in the same condition, and ought not, in equity, to be enforced.
    On the 15th October, 1840, Hoyt filed an amended bill, making Peter I. Stryker a party, in which, after setting out the giving of the mortgage for $86,378, as stated in the first bill, he states that he, the said complainant, with Stephen Hoyt, Russel H. Nevius and Elisha Townsend, on the 12th August, 1830, owned stock to the amount of $80,000 in the Bridgewater copper mines, and that they were, or one of them was, the owner of the lands then possessed by the president and directors of the ,said Bridgewater Copper Mining Co.
    That the said P. I. Stryker, on or about that day, came to New York and offered to buy of the complainant and the said Stephen, Russel and Elisha, their right, title and interest in the said stock, lands, funds and property of the said company, and in satisfaction therefor, proposed to pay them $15,000, on the 15th September then next, and to secure the payment of $65,000, the residue of the purchase money, by a bond and mortgage on the said mines and real estate, and to pay the interest thereon semi-annually in advance, which proposition was accepted; and thereupon an agreement in writing was entered into by them,, with said Stryker, for the sale of their said stock, lands and interest, for $80,000 — $15,000 to be paid on the 15th September then next, and the balance, $65,000, to be secured by a bond and mortgage on the said mines and real estate, payable in four equal yearly payments, with lawful interest, payable half-yearly in advance. And that afterwards, on or about October 11th, 1830, in execution of the said agreement, the complainant and said Stephen, Russel and Elihu conveyed and assigned all their, and each of their said stock, lands, funds and property to the said Stryker, or to the said company, or for their use and benefit.; and thereupon, in pursuance of said agreement, the said Stryker, with one Henry Vanderveer, made and executed to the complainant and the said Stephen, Russel and Elihu, a bond for the said $15,000, and for the balance, viz., $65,000, which belonged exclusively to the complainant. “The President and Directors of the Bridgewater Copper Mining Co.” executed to the complainant four bonds, dated the day and year last aforesaid, conditioned for the payment of $16,250 each, the first payable September 15th, 1832, the second, Séptember 15th, 1833, the. third, September 15th, 1834, and the fourth,September 15th, 1835, with the lawful interest thereon from October 11, 1880, payable half-yearly in advance, according to the terms of the purchase aforesaid,, and the said “ The President and Directors of said Copper Mining Co.” beiug then seized in fee of the lands and premises described in the mortgage first mentioned, in further pursuance of the said agreement, executed to the complainant, under their corporate seal, their certain mortgage, dated October 15th, 1830, on the before-mentioned lands and premises, to secure to the complainant the payment of the said four bonds; which said mortgage was duly acknowledged by the said “The President and Directors of” &c., by the said Stryker as president of said company ; and that the seal of said company had been thereto affixed, pursuant to an order of the said corporation; and that, on the 12th October aforesaid, the said mortgage was duly recorded.
    That no part of the said sum, or of the interest thereof, being paid, the complainant filed a bill in this court to foreclose the said mortgage and for a sale of the mortgaged premises, to which bill the said company put in their answer, under their corporate seal, which answer was signed by said P. I. Stryker, as the president of said company.
    And the complainant says, there being difficulties and disputes between the complainant and the said company respecting the validity of the said first mortgage, on or about December 6th, 1886, a compromise and settlement were made and entered into by the said Stryker, as president of the company, as their agent, and acting by their authority, and assisted and attended by Jas. S. Green, Esq., counsel of the company, who represented themselves to be fully authorized by the company to make a settlement and compromise of all matters in difference between the company and the complainant.
    That, on said settlement and compromise, after correcting all errors and mistakes, and making all such deductions as the company claimed, there was found to be due the complainant, on account of the said purchases, $86,378.
    That on or about December 12th, 1836, the said Stryker produced and delivered to the complainants’ solicitor a certified copy of a resolution of the board of said company, as follows: (giving the resolution.) It states that at a meeting of the board at Stelle’s hotel, in New Brunswick, on the December, 1836, present Peter I. Stryker, James S. Nevius, James S. Green and William Thompson, the following preamble and resolutions were adopted. The preamble recites that a compromise and settlement had been made, and that, after correcting all errors and mistakes, and crediting all payments, and making such deductions as the company claimed a right to have made on account of the purchase for which the company had theretofore given their bonds and mortgage on their real estate, lands and property 'n Somerset, there was justly and legally due and owing him, from, the company, $86,378, for and on account of the said purchase; and that the company had agreed to give their bond and mortgage to secure the said sum; and the resolution is, that a bond and mortgage be given by the company to the complainant, for the payment of the said sum in two years from the 15th of that month, with legal interest thereon to be paid half-yearly from the date of the said bond and mortgage; and that the president be authorized to execute, under his hand and the corporate seal of the company, the said bond and mortgage on the lands and property theretofore mortgaged to him; and that, after said mortgage should be recorded, the said bond and mortgage should be delivered to the complainant or his attorney, on the canceling the former bond and mortgage. This preamble and resolution are signed “ W. Thomson, Sec. B. C. Mining Co.”
    And the complainant says that, in confidence of the good faith, <&c., and of the authority of the said board, and not having the least suspicion that the validity of the said bond and mortgage of December 15th, 1846, would or could be questioned, the said original mortgage was delivered to the said Stryker, at his request.
    And the complainant says he is informed and believes that said Stryker, as president of the company, and by the direction of the board of directors of said company, after a considerable lapse of time, caused the said original mortgage to be canceled. of record, in order that the company might be able to procure a certificate that there was no mortgage on the said property but the last one so given to the complainant as aforesaid ; and that they did procure such certificate, and have repeatedly used it, in Europe and in the United States; and that the said company have always, until a few months past, recognized the validity of .the said last-mentioned mortgage, and acquiesced in the said settlement and compromise, and have, from time to tipie, applied to the complainant not to put said last-mentioned mortgage in suit; and have obtained time by assurances that they were in. hopes of selling the premises, and that the whole debt due from, the company to the complainant should be paid.
    That wh< n said compromise and settlement was made, the said Stryker was president of the board, and had been, for several years, a large stockholder, and the principal and most active man in the management of the affairs of the company, and also as the duly authorized agent of the company in the transaction of their business; and that, when he executed and delivered the said second mortgage, and when he obtained the first, and caused it to be canceled, he represented himself as acting in the name and behalf of the company, and as duly authorized by them to execute and deliver the said second mortgage to the complainant ; and that it was on the faith of his said representation, and of the said resolution, and the complainant’s and his solicitor’s perfect confidence of the probity of the gentlemen whose names are mentioned in it, that said Stryker obtained the said original mortgage from the complainant’s solicitor ; and that, if the said second mortgage is invalid from any cause, the said first mortgage ought to be considered in full force, the same having been obtained from the complainant by fraud and imposition, or delivered to the said Stryker under the influence of mistake and full faith in the supposed goodness of said second mortgage.
    That the defendants pretend that the said first mortgage was usurious, for that, at the time of giving the same, the complainant corruptly agreed for and received, on the whole, §65,000, the interest for six months in advance, at the rate of 6 per cent, per annum, and thereby corruptly and illegally agreed for and received more interest than at the rate of 6 per cent, per annum; but the complainant charges that the said contract and mortgage was not usurious, and that it was not corrupt or illegal, on a bona fide contract for the sale of property, as that was, to agree for and receive interest in advance on the purchase money.
    That the said contract was a bona fide one for the sale of stock and other property, and not for the loan of money; and that he sold the said property upon the express terms of payment that, as §65,000 of the consideration money was to be paid by installments at distant days, the interest should be paid semiannually in advance, as expressed in the said first mortgage; and he denies that the said sale, or the said stipulation, was a shift or device to cover or conceal usury, or that the said first mortgage was tainted with usury, or void in law.

      That, if the said agreement for the payment of the interest in advance was usurious or illegal, there was no corrupt intention on his part to agree for or take illegal interest; and that, notwithstanding he was advised by his counsel that the said mortgage was not tainted with usury, yet, as the defendants complained that the said agreement for the payment of interest semiannually in advance was illegal, he consented to reform the original contract in that particular ; and it was mutually agreed, at the time of the said settlement and compromise, that the said stipulation in the said first mortgage and bonds should be rescinded and waived, and that any excess of interest which the complainant had received, on the said original contract and mortgage, beyond the rate of 6 per cent., should be deducted and allowed for in ascertaining the amount for which the new mortgage and bond were to be given; and that a calculation was made accordingly by the said Stryker, and the excess of interest which it was alleged had been received, in consequence of the •said stipulation for the payment of interest in advance, was deducted and allowed for to the company; and that no usurious interest on the original contract or, mortgage was included in the said second mortgage.
    The complainant insists that, if there was anything objectionable in the original contract and mortgage, yet, as that was ■one of the matters in difference between the complainant and the company, and one of the errors and mistakes complained of by the company, and was corrected and allowed for by mutual •consent and agreement, before the giving of said second mortgage, and no usurious interest was included therein, the said second mortgage is entirely free from the objection of usury.
    That the said Stryker, ever since the organization of the company, has acted as their authorized agent in transacting its business and in entering into contracts for said company ; and that his acts as such agent are binding on the company ; and that the •said Stryker, Nevius, Green, and Thompson, for a long time, both before and after the passing of said resolution, claimed to •be, and acted as directors, as by the book of minutes of the board will appear; and that they were assembled in the usual way in which the said board have been accustomed to assemble; and, therefore, as directors de fado, their acts, being done under color of right, are binding on said corporation, and cannot be vacated for irregularity in the election of some of them, or for any want of formality in the assembling of the board, if any such irregularity or informality existed, of which the complainant had no knowledge or notice, and which he does not admit; that the proceedings of the said board in passing said resolution, and the validity of said second mortgage, were acquiesced in for years by the company, and until the complainant could no longer be put off by promises, &c., when a change of president and directors was contrived, as a plan to defraud the complainant out of his debt; and the complainant insists, that if the said second mortgage shall be deemed void on any such pretences as last aforesaid, the first mortgage ought to be considered in force, as having been obtained from the complainant and wrongfully canceled, either by fraud or mistake.
    This bill prays that the said company and Peter I. Stryker may answer, &c., and that the said Stryker, who is made a party to this bill for the purpose of discovery, may further set forth and discover whether he was not, in December, 1836, president of said company, and when he was first appointed president, and when he ceased to be such, &c., and whether he did not act in behalf of said company in making said settlement and compromise, and whether he was not assisted therein by Jas. S. Green, the counsel of the company in that business, &o., and whether the said certificate did not state the existence of the said second mortgage as an encumbrance, and whether the said certificate was not produced to the board of directors, and when and how often, and what they ordered to be done with it, and that the said company may be decreed to pay said second mortgage, or, if it shall appear that the said second mortgage is invalid, the said first mortgage may be decreed to be in force, and to have been obtained and canceled by fraud or mistake, and that the company may be decreed to pay the same.
    Stryker’s answer to this bill was filed in June, 1842. In it, after admitting that the complainants are possessed of said second mortgage, he admits that about August 12th, 1830, an agreement was entered into between him and Stephen Hoyt, acting for himself, and representing himself as acting for the complainant and Nevius and Townsend, whereby the said Hoyts and Nevius and Townsend agreed to sell to him, Stryker, all their interest in the stock of the Bridgewater Copper Mining Company, for $80,000; and he agreed to buy the saíne at that sum, and to pay $15,000 on the 15th September,-then next, and the residue in five years, with interest, payable half-yearly, in advance; the principal of which to be satisfactorily secured, as will appear by a certain article of agreement in writing between said parties.
    That by a subsequent agreement, also in writing, and which was made a part of the original agreement, it was agreed that the said sum should be paid in four equal annual payments, instead of five, and that the interest thereon should be paid semiannually, in advance.
    That, in compliance, &c., he, on the 15th September, 1830, gave to Stephen Hoyt, acting for himself and his associates, a bond executed by him and one Henry "Vanderveer, for $15,000, payable September 15th, 1831, in part fulfillment, &c.; and that at or about the same time, in further compliance, &c., he gave his own note for $65,000.
    That it was agreed by and between the said parties, at the time of making the said agreement, that not only the stock of the Hoyts and Nevius and Townsend should be transferred, but that the possession of the mines and real estate of the said company, of which the said Goold Hoyt was president, should be delivered up to him, Stryker, so that he might have the benefit of his purchase.
    That said G. Hoyt, and his said associates put off the consummation of the contract, on their part, till about October 11th, 1830; and that between said September 15th and October lltli, 1830, the said G. Hoyt and his said associates, or some or one of them, surrendered all their possession and right of possession of said mines and property to a third person, thereby disabling themselves from honestly and fairly executing their said contract; that he had no knowledge of said surrender ; that he relied.implicitly that said Hoyt, &c., would fairly carry out the said agreement, arid thus enable him to carry on the mining operations, either by himself or by others, which was his object and intention at the time of entering into the said contract.
    That the possession of said mines and real estate has not been delivered to him, or to any other person in his behalf, or for his use and benefit, according to the understanding of him, said Stryker, and the true construction and intent of the said agreement ; but the mines and real estate were delivered into the hands of another person, in consequence of which and by whom, he was deprived of that control of the property which he expected to enjoy and ought to have had.
    That, about this time, a negotiation for a loan was had and carried on between the Bridgewater Copper Mining Company and the said G. Hoyt, the particulars of which he cannot state from memory, but for which he refers to the minutes of said company as referred to by complainant. That the compauy agreed to give said G. Hoyt four bonds, for $16,250 each, payable on the 15th of September, 1832, and on the same day in each of the three succeeding years, with lawful interest from October 11th, 1830, payable half yearly iu advance, secured by a mortgage on the mines and property of the said company, and thereupon to take up and receive the said note for $65,000 so given by this defendant on his contract above set forth ; and thereupon, on the 11th October, 1830, the company executed such bonds and mortgage to said G. Hoyt, and the said note was thereupon delivered over to the said company • and that these are the bonds and mortgage described in the complainant’s bill as having been given and received for the balance of tiie purchase of said property.
    And the defendant submits that the said bonds and mortgage, whether founded on an agreement for a loan, or given in part for (he purchase money of the said property, being founded on a corrupt and usurious agreement, to take from him more than legal interest, were void. That in pursuance of such agreement, the said G. Hoyt actually received $1950, one-half year’s interest, in advance, on said $65,000.
    He admits that the answer of the company to the complainant’s foreclosure bill on this $65,000 mortgage, was signed by him as president of the company, and he presumes lie made the usual affidavit that he was president.

      That, about the same time, the said G. Hoyt sued him and Vanderveer on the said bond for $15,000, in the Supreme Court, and also brought an ejectment, in said court, against Augustus F. Cam man and others, to recover possession of said mortgaged premises.
    That to the foreclosure suit the company set up usury as a defence.
    That the same defence was set up in the said suit on the said $15,000 bond.
    That the said suits remained a long time pending, till, at length, the said G. Hoyt agreed to abandon and discontinue all the said suits, on condition that the costs thereof should be paid; and, thereupon, he, the defendant, paid to the attorney and solicitor of said G. Hoyt $150, the costs agreed to be paid on the discontinuance of the said causes.
    That, shortly after, to his surprise, he, the said Vanderveer, was sued on said bond for $15,000, in the Circuit Court of the United States, and that he employed an attorney to make the same defence as had been made in the former suit; that the plea was prepared and filed, but pwing to some misapprehension of his attorney as to the practice of that court, the plea was not filed in season, and judgment by default was entered, and execution issued and placed in the hands of the marshal, and by him levied on the property of this defendant.
    That application was made at the. next stated term of said court to open the said judgment and permit the defendants to plead, or that the plea they had filed should be received.
    That the court did not grant the said application, but doubted and took time to advise. That this defendant, alarmed, &c., was advised, by way of relief, to submit to these terms, to wit, that the execution should be withdrawn, and one year’s indulgence given to him, on condition that he would withdraw the plea of usury, and cause a new mortgage to be given for the said sum of $65,000, and the interest thereon, in place of the said mortgage for that sum given in October, 1830.
    That he reluctantly complied with this advice. That the complainant thereby escaped a legal defence, and this defendant was placed in his power, with a judgment against him for $15,000, for which he had received no just or valuable consideration, such as he had reason to expect when the said bond was given.
    That some time after the expiration of the said year, the said G. Hoyt, on scire facias, obtained and issued execution on the said judgment, and the property of this defendant was sold under the said execution.
    That it was under the pressure of this judgment that the compromise set forth in complainant’s bill took place.
    That the complainant, feeling he had power over this defendant, who was then president of the said company, (a mere nominal office, there being no business carried on by the company,) pressed to obtain a new mortgage at the hands of the company, in place of the old one which he knew was usurious and void.
    He admits that the said second mortgage was executed by him, as president of. the board o-f directors of said company, and under the corporate seal of said company; but he denies that he was, at the time, acting as the agent of the company, any further than such agency may be implied from his acting on that occasion as president of the board, or that he had any special authority for that purpose.
    That, satisfied as he was, he acted, probably, without due consideration in the matter, and intended faithfully to carry out his agreement, and supposed that the company would ratify the act.
    That, without access to the minutes of the board, he cannot state when the last election for directors, prior to the giving the last bond and mortgage, took place, but remembers that from about October, 1830, no mining was done by the company. Annual elections were not regularly held according to the charter, and there was little or no business to be done, the company not being in possession of the mining premises.
    That on or about December, 1836, this defendant and J. S. Nevius, J. S. Green, and William Thompson, all of whom this defendant believes had been elected directors of the company at some previous time, but when, he cannot say from recollection, met in New Brunswick, and the resolution set forth in complainant’s bill was then and there passed and adopted.
    That the meeting was informal and irregular ; the notice required by the charter and by-laws not having been given, and the directors who were absent not having been in any way notified of the meeting.
    That the said G. Hoyt was present, either personally or by the agency of his son, and must have known from the circumstances, as this defendant supposes, that the said meeting was not convened according to the charter and by-laws.
    That he does not know whether said Green or Nevius was a-stockholder at the time. He believes that said Green had met with the board on one former occasion, but thinks said Nevius never had.
    That he don’t recollect any previous instance in which business was transacted by the board in such an irregular way, and denies that it was usual for the board to assemble in this irregalar way for business; and that it was done so at this time owing, principally, if not entirely, to the urgency of the complainant to have the mortgage given and the convenience of getting said Nevius, Green and Thompson together, at that time, at New Brunswick, it being court time there.
    That he don’t recollect of any deductions being then made, except for payments and for excess of interest; yet it is possible other deductions may have been made, but what they were he does not remember, and cannot state. His impression is that the said mortgage was given as a substitute for the first, deducting the payments and excess of interest.
    That he. was elected president of the company in 1830, and again in 1838. That he ceased to be president the following year, and is now a director.
    That in 1830 he usually attended the meetings of the board, which were few, but he took little part in their business, as the company had not possession of the said mines or mining premises at that time, or at any other time previous to the new organization of the board in 1838.
    That the charge in complainant’s bill that this defendant, ever since the first organization of the board, has acted as the authorized agent of the company in the management of its affairs and the making of contracts, is not true.
    That, though this defendant owned considerable stock in the company, he does not recollect of any agency in which he was employed by the company or under its authority previous to 1838.
    That he, as president of the company, caused the said first mortgage to be canceled of record, and that a certificate was thereupon procured from the county clerk that there were no other mortgages on the said mining property but the said mortgage of 1836, and such certificate may have been used in Europe and in this country, to enable the company to procure a loan or sell the property; but whether the said company have, from time to time, or at any time, recognized the validity of said mortgage, or have applied to the complainant not to put the same in suit, and have thereby obtained time, he has no personal knowledge, and therefore leaves the complainant to his proofs.
    That, by the resolution set out in the complainant’s bill, the said second mortgage was to be delivered to the complainant on canceling the said first mortgage and bond; vet, though the second mortgage was delivered to the complainant soon after it was registered, the complainant neglected and refused to deliver rap the first mortgage and bond for a long time, and, as he believes, for 18 months, during which time both appeared as encumbrances, to the great detriment of the company.
    That he has no knowledge of any device to change the president and directors of the company to cheat and defraud the complainant out of a just and honest debt; the change of officers was a natural consequence, as he supposes, of a change in the ownership of stock which took place prior to the organization of the board in 1838.
    Replications were filed, and testimony was taken.

      B. Williamson, for the complainant,
    He cited Saxton’s Ch. 541, 550; 1 Hoff. Ch. Pr. 553; 3 Paige 407; 1 Ib. 430, 3; Cro. El. 25, 104; 4 John. Ch. Rep. 332; 8 Wheat. 354; 3 Peters 40, 2; 2 Comen 664, 678, 704, 763; 15 John. Rep. 168 ; 4 Wend. 655; 4 Yates 220, 3; 9 Mass. Rep. 49 ; 3 Bos. and Pul. 158; Cro. J. 26; 2 Pen. Rep. 908; 1 Halst. Rep. 116 ; 8 John. Rep. 85 ; 4 Tenn. Rep. 613 ; 3 Comen 284, 290 ; Cooper’s Ch. 231; 3 Eng. Com. Law Rep. 109; Comyn on Usury 36, 95.

      P. D. Vroom, for the defendants.
    He cited Angell & Ames on Corp. 278, § 5; Ib. 76 ; Comyn on Usury 183, 4, 190; Cro. El 20.
   The Chancellor.

On the 12th August, 1830, an agreement was made between G. Hoyt, Stephen Hoyt and Nevius and Townsend, of the one part, and Peter I. Stryker, of the other part, to be completed on or before 15th September, then next, by which the parties of the first part agreed to sell to said Stryker all their interest in the stock of “ The Bridgewater Copper Mining Company,” for $80,000, and the said Stryker agreed to "Vuy the same at that price, and to pay $15,000 thereof on or before the said 15th September, the residue, $65,000, to be paid in five years from that date, with interest on the same, payable half-yearly, in advance; the payment of the principal to be satisfactorily secured, either by a mortgage on the real estate of the said company, if that can legally be done, or in some other satisfactory manner. And the said Stryker agreed that he would, on or before the said 15th September, agree with them that in case the said interest' on the said $65,000 should not be paid when it should become payable as above mentioned, or within one month thereafter, he, the said Stryker, would give up to them, on demand, quiet possession of all the property, real and personal, belonging to the said company, and reconvey to them all their interest in the stock of the company, in full discharge and satisfaction of the said $65,000; and that said Stryker was not to be held personally responsible, in his private property, for the said sum of $65,000; that on said Stryker’s paying the said $15,000, and executing the said mortgage, or giving other satisfactory security, the said Hoyts and Nevius and Townsend would convey to him, by a transfer on the books of the said company, or otherwise, all their interest in the stock of said company ; that if the said $15,000 should not be paid on or before the said 15th September, the payment thereof should be satisfactorily secured, and that no stock was to be transferred till the same was paid; and that the said $65,000 was to be paid in four equal yearly payments, on the 15th September, in the years 1832, 1833, 1834 and 1835, respectively. '

At the foot of this agreement appears, of the date of September 15th, 1830, a receipt as follows: Received on the within agreement, a bond executed by P. I. Stryker and Henry V'andervoer, of this date, for the jvithin mentioned sum of $15,000, payable September 15th, 1831, in part fulfillment of the within-mentioned agreement.

A special meeting, called by order of the president, was held October 10th, 1830; present, G. Hoyt, Townsend, Hardenburgh and S. Hoyt. The president presented the resignation of J. I. Hoyt as a director, which was accepted, and T. A. Hartwell was elected by the board to fill the vacancy. Mr. Townsend presented the resignation of Mr. Nevius, which was accepted, and Peter I. Stryker was elected by the board to fill the vacancy. G. Hoyt tendered his resignation as a director, which was accepted, and P. I. Stryker was then elected president of the board, and George Wood was elected a director in the place of G. Hoyt. Mr. Townsend then offered his resignation as a director, which was accepted. It was then resolved that the company consider it expedient to raise funds on bond and mortgage, to put the works in operation, and carry on the same;” and a committee was appointed “ to endeavor to effect a loan for tha<~ purpose, and report to the board forthwith;” and the minutes say the committee retired, and soon returned and reported “ that they can effect a loan for that purpose by taking a note of P. I. Stryker, payable on demand, with interest, for $65,000, and recommend that the company receive the same as cash, and execute to Goold Hoyt the company’s bonds and mortgage for that sum, payable in four equal payments; one quarter part thereof on the 11th October in the several years of 1832, 3, 4 and 5.” Tiie board accepted the report, and ordered the bonds and mortgage to be executed accordingly. They then elected William Thompson a director, in the place of E. Townsend, who had resigned, as before stated. Stephen Hoyt then resigned as secretary, and William Thompson was elected secretary. It was then resolved that Stephen Hoyt (the late secretary) give an order on Jeremiah Parsell to deliver into the possession of the new secretary of the company all the property in his possession belonging to the company; and that, he deliver to the secretary all the books and papers belonging to the said company.

There is endorsed on the agreement before set forth, of the date of October 11th, 1830, a writing signed by G. Hoyt, by which he acknowledges to have received from the said company their bonds and mortgage for $65,000, and the bond mentioned in said agreement for $15,000, in full of P. I. Stryker’s note for $65,000, and also in full satisfaction and discharge of P. I. Stryker from all the stipulations and conditions of the said agreement.

At a meeting of the board, held the first Tuesday of July, 1831 — present, Stryker, Cam man, Green, Gaston and Thompson — it was resolved, “ That the promissory note given by Peter [. Stryker to the company be given up to him.”

At a meeting of the board, on the 13th December, 1836, a preamble and resolution were adopted, stating that a compromise and settlement between G. Hoyt and the board had been made, and that after correcting all errors, and crediting all payments, and making such deductions “as the company claim a right to have made, on account of the purchase for which this company heretofore gave their bonds and mortgage on their real estale, lands and property, there is legally due and owing him from this company, $86,378, for and on account of said purchase, and to secure the payment of which sum, with interest, this company have agreed to give their bond and mortgage;” and resolving that a bond and mortgage be given by the company to said Hoyt, accordingly, payable in two years from December 15th, 1836, with interest half yearly, and that the president be authorized to sign and execute the same under the corporate seal of the company, on the lands and property theretofore mortgaged to said Hoyt; and that after the said mortgage shall be recorded, the said bond and mortgage be delivered to said Hoyt, or his attorney, on the cancellation of the said former mortgage, and the bonds accompanying the same.

At a meeting held on the 20th February, 1838, a supplement to the charter was passed, authorizing the company to increase their capital stock in any sum not exceeding $500,000; and that any stockholder may be eligible as director ; that a share shall be $50 instead of $500; and that the number of shares shall be increased in the same proportion as the amount of a share therein is lessened by the supplement.

At a meeting held October 16th, 1838, it was, among other things, resolved that “Professor Pattison and J. W. Odenheim (directors) be a committee to negotiate with Goold Hoyt respecting the claim he professes to have on the company’s mines, and a certain bond given by P. I. Stryker and Henry Vandervecr, for $15,000, to said Hoyt, as part of the consideration of said mines; and the said committee are instructed to obtain, as far as may be, such indulgence in the payment of the above sums as the convenience of the company seems to require.

From this history, it is manifest that the transaction out of which the first mortgage arose, was not a loan, but a contract of sale and purchase; and one of the terms of the contract vras, that the interest should be paid half yearly, in advauce. Is this usury ?

I am not aware that this question has ever been presented to our courts, and I have found no case in which the distinct question has ever been decided. It is settled that banks, in loaning money, may take interest in advance, on discounting notes in their usual course of business; and it is held in New York and Massachusetts that this may be done by others, as well as banks, on negotiable paper, unless the time it has to run is so long as to afford a presumption that usury was intended.

In the case of Marsh v. Martindale, 3 Bos. & Pul. 158, a bill at three years was discounted, and the interest for the whole period was taken in advance, or discounted.

In delivering the opinion of the court in that case, Lord Alvanley says: “ It was contended (by counsel) that the transaction was, to all intents, a purchase of an annuity; and this was ■certainly the strongest ground the plaintiff could take, for it has been determined, in all the cases on the subject, that a purchase of an annuity, however exorbitant the terms may be, can never .amount to usury. But if the transaction respecting the annuity be only a cover for the advancement of money by way of loan, it will not prevent the securities from being void.” In that case, his lordship said there was no idea between the parties of anything but a loan of money, and that it was impossible to wink so hard as not to see what the real transaction was.

In the case in hand, there is no room for the idea of a loan of money. The bonds and mortgage were given in fulfillment of a prior written agreement for the sale and purchase of property, at a price stipulated, to be paid, with interest, in a stipulated manner.

If the interest for the whole time these bonds had to run, was to have Been paid in advance, perhaps the court might consider that the parties made the transaction the subject or occasion of a contract between them for the loan or forbearance of money at an usurious rate of interest. But the contract was, that the interest should be paid half yearly, in advance. To constitute usury, there must be an unlawful or corrupt intent. 7 Johns. Ch. R. 77; 2 Call. 110; 1 Beat. 287, 289.

I am of opinion that the transaction furnishes no sufficient evidence of such intent. It is hardly possible to suppose that the seller thought the contract was tainted with a vice which would subject him to the loss of his whole property.

I am unwilling, therefore, to say that the first mortgage was void. But, if I could think it was, it strikes me it would be peculiarly a case for the application of the doctrine that such a contract may, by subsequent agreement of the parties, be freed-from the vice. 10 Wheat. 367.

The second mortgage given in this case was, I think, recognized and sanctioned by the board of directors after it had been given. The old mortgage was procured from Hoyt, and canceled ; a certificate was obtained from the clerk of the county, for the purposés of the company, after the cancellation of the first mortgage, to show that no other mortgage existed on the property of the company except the second mortgage, and, in October, 1838, a committee was appointed by the board to negotiate-with Hoyt, and obtain such indulgence in the payment of his-claims as the convenience of the company seemed to require This makes it unnecessary for me to examine several questions debated at the bar, touching the validity of the second mortgage.

One objection to it was, that one of the four directors by whom-it was ordered to be given, was not a stockholder. The original charter does not say that the directors shall be stockholders; and if none but stockholders could be directors, the company was not originally lawfully organized, inasmuch as two persons took the whole stock and proceeded to elect seven directors; and there is nothing in the cause to show that either of the other five directors elected were then stockholders. I am inclined to think that, under the original charter, it was not necessary that directors should be stockholders. The supplement was not passed till after the second mortgage was given.

The next objection to the validity of the second mortgage was, that there was no legal meeting of the board at the time it was directed to be given. It is certainly true that a mere accidenta; assembly of a majority of persons who are directors of a company does not make a board ° and if a lawful board had at once repudiated this second mortgage, perhaps the best ground that could have been taken to maintain its validity would have been the production of the minutes of the board, to show that, notwithstanding the requirements of the by-laws, extra meetings were constantly called without notice to all the directors. It seems to have been the uniform practice for four or five to get together .on the call of the president, and transact important business.

The next objection taken was, that no election for directors had been held for several years before the giving of the second mortgage. The charter says that the corporation shall not be deemed to be dissolved in consequence of an omission to elect directors at the time, &e.• but that it shall be lawful to bold such election on such other day as shall be prescribed by the bylaws and ordinances of the corporation.

Does the power to transact business remain in the old board ? If so, how long? The books are not entirely agreed on this subject, and, from the view I have taken of the case, it is not necessary to discuss the question.

The Chancellor intimated that in this ease, and under the circumstances attending it, it would be inequitable to allow the complainant to recover more than the $65,000, and interest thereon from the date of the first mortgage, deducting any interest that may have been paid.

The second mortgage was taken as a substitute for the first. and with a view of relieving it from an objection to its validity by reason of its requiring the interest to be paid Jialf yearly in advance; and was given, no doubt, principally for the purpose ■of obtaining the two years’ delay. If the first mortgage was void, the complainant would have lost the whole. If it was good, there was no occasion for taking a second mortgage; and if the complainant could have been assured that the first mortgage would be sustained, he would not have thought of asking a new one in the place of it. Should he, then, when taking a new mortgage, to relieve his first mortgage from objection, because by it he got the trifling advantage of the use of a half year’s interest, impose the terms or condition of converting the whole interest then due, twenty odd thousand dollars, into principal ? I can hardly suppose it was demanded by the complainant. It is more probable that the new mortgage was given in that shape without reflection, and under the idea that it could be paid within the two years mentioned therein.for its payment.

The solicitor and counsel for the complainant consented to-take a decree in accordance with this intimation.

Decree accordingly.

Affirmed, 2 Hal. Ch. 625.

Cited in Morris v. Taylor, 8 C. E. Green 443.