text:
    Joseph Brown v. Robert Folwell, Esther Willis and others.
    A Cedar Swamp, of 88 acres, was devised by N. F. to his executors with directions to sell the same. On the 8th August, 1830, the executors made a deed of it to J. E. C. and on the same day J. 33. C. made a deed of it to T. I. F., one of the executors. In August, 1843, T. I. F. gave a mortgage on it to J. 13. In October, 1846 a bill was filed by R. F. against the said executors to set aside the said deeds, and in January, 1848, they were decreed to be void; and the decree directed that the cedar swamp bo sold by a master; and it was so sold, in May, 1848, and E. W. purchased it at that sale. J. B. was not made a party to that suit. In June, 1848, J. B. filed his bill on the mortgage given to him by T. I. F.; and in September, 1848, a decree pro con> was made for the sale of the mortgaged premises; and they were sold in January, 1849, and were bought by J. B. (leaving a balance due on his mortgage). R. F. and E. W. were not made parties to the said suit of J. B. E. W., after her said purchase at the master’s sale, cut a part of the cedar growing in the swamp, and moved it to lands of a third person, where it was struck off at vendue to bidders; and J. B., after his purchase under the said decree on his mortgage, filed a bill against E. W. and said bidders, and obtained an injunction restraining the bidders from taking the wood so struck off to them, and restraining E. W. from further cutting. On the bill and the statements of the answer the injunction was dissolved.
    On the 17th April, 1849, Joseph Brown, of Philadelphia, exhibited his bill, stating that one Thomas I. Folwell, of Philadelphia, being indebted to the complainant in $9000, for money lent and advanced, executed to the complainant a bond dated August 23, 1843, conditioned for the payment to the complainant of $9000 in one year, with interest payable half yearly. And that the said Thomas I. Folwell, being seized in fee, as he alleged, or of some other good and sufficient estate of inheritance of in and to a certain plantation and lots of land, in order to secure the payment'of the said sum mentioned in the condition of the said bond, with the interest thereon, did, by mortgage duly executed bearing even date lyith the said bond, convey to tho complainant, in mortgage, all the following plantation and lots and parcels of land, situate in the township of Woolwich, in the county of Gloucester, being lately the residence of the said Thomas I. Fol-well, bounded as follows: (giving the boundaries); containing about 225 acres of land, meadow, cedar swamp and premises, be the same more orless. Also all that'certiain lot of meadow ground, situate in the township aforesaid, bounded, &c., containing about 85 acres, be the same more or less ; a part of which premises the said Thomas I. Folwell claims title to under the will of his father, Nathan Folwell, deceased ; apart thereof the said Thomas I. Folwell purchased of Enos Henderson and wife, by deed dated March 8, 1836 ; apart thereof the said Thomas purchased of JohnE. Caldwell, by deed dated August 8,1836; and a part thereof of Catharine Foldcraft, by deed dated April 25, 1835. That the part so purchased of John E. Caldwell contained 33 acres of valauble cedar swamp, which is described and bounded in and by the.said deed from Caldwell as follows : Beginning at three cedars, thence by Hutchinson’s line, so called, south 57 degrees east, 56 chains 40 links, thence north 75 degrees west, 37 chains 70 links; thence north 27 degrees west, 23 chains, 70 links, to the place of beginning; containing 33 acres of cedar swamp and cripple, be the same more or less.
    That a large arrear of interest being due on the said bond and mortgage, this complainant, on the 16th June, 1848, filed his bill in this court against the said Thomas I. Folwell and his judgment creditors on attachment; and, in September, 1848, obtained a decree of foreclosure, and for the sale of the mortgaged premises, for the sum of $11,784, and $61 20 costs; upon which an execution was issued; and, on the 13th January, 1849, the said premises were sold, by one of the masters of this court, and were purchased by the complainant, for $7000, leaving a balance of between $5000 and $6000 due to the complainant on his said bond and mortgage.
    That, about the time when the complainant purchased the said mortgaged premises, Robert Folwell the brother of the said Thomas, entered upon the lot of cedar swamp, and cut and took away a large quantity, supposed to be about 100,000 cedar rails, logs, poles, posts and stakes, the most of which have been hauled off and out of the said cedar swamp, upon adjoining land. That the complainant, residing in Philadelphia, had no knowledge of the said cutting until after he purchased the premises at the master’s sale, and after the removal aforesaid or some part thereof. That some time previous to the 9th of April, 1849, the complainant found that the said Robert Folwell had advertised the said rails, &c. to he sold at public sale on that day ; which advertisement was published in a weekly paper printed at Woodbury, and is as follows: (giving the advertisement).
    That the said Robert Folwell is represented to the complainant as insolvent, and does not own any property, so far as the complainant knows and is informed and believes, of any description, and is wholly unable to respond to the complainant in damages.
    That the complainant attended, on the said April 9th, 1849, at the place of sale mentioned in the said advertisement, and deemed it his duty to state to the said Robert the circumstances of his title to the cedar swamp, and requested him to desist from, the sale for one month, until the right of the complainant, or of said Robert or any other person, could he settled by agreement or reference to competent persons; but the said Robert refused to postpone the sale. That the complainant shewed to the said Robert a notice which he stated lie should read to and distribute among the persons attending the sale, before the sale commenced, if the said Robert did not agree to a postponement; which the complainant did, and then left for Philadelphia. That the said notice given by the complainant was a printed handbill, as follows : (giving it at length). It is a notice that “ the 60,000 cedar rails offered for sale by Robert Folwell” that day, “ having been cut on property on which I (the complainant) had a mortgage, and for which I (the complainant) now have a deed, the public are hereby warned not to purchase said rails, as the subscriber (the complainant) claims the same, and will prosecute and hold responsible any purchaser or person who shall remove the same or any part thereof, until the right is fully settled in a court of law or equity,” signed Joseph Brown.
    That the complainant is informed and believes that the said Robert Folwell •went on with the said sale, and that William Crispin, Bowman Lippincott, and others unknown to the complainant were purchasers at said sale.
    That the cutting and taking away of said property from the said swamp is a great injury to the complainant, by depriving him of the timber necessary for fencing his plantation; and that the damage is beyond the mere value of the timber.
    That the said Robert Folwell, combining, as the complainant is informed and believes, with Esther Willis, who, as the complainant is informed, claims title to the said swamp, &c, refuses to acknowledge the complainant’s title to the said rails &c, but denies the complainant’s title to the said 33 acres of cedar swamp. And the said Robert Folwell and Esther Willis pretend, that the deed from the said John E. Caldwell to the said Thomas I. Folwell was set aside and for nothing holden, by this court, in a cause depending between the said Robert Folwell, complainant, and the said Thomas I. Folwell and Joseph C. Pancoast, executors &c. of Nathan Folwell, deceased, defendants, on the 28th of January, 1848; and that the said cedar swamp was sold by order of this court, on the 25th May, 1848, by a master of this court, and purchased by the said Robert Folwell, in the name of the said Esther Willis, but for the use and benefit of the said Robert Folwell; whereas the complainant charges that he had no notice of that suit; that he was not made a party thereto, nor had he any knowledge, directly or indirectly, thereof. That, the said deed from John E. Caldwell to Thomas I. Folwell being dated August 8,1836, and duly recorded on the same day, without any claim, or objection to the same, to the knowledge of the complainant, and from the number of years which had elapsed since the making and recording of the said mortgage to the complainant, which was known to the said Robert Folwell, and the recording whereof was lawful notice to every body, the complainant was entitled to have had notice of such suit between Robert Folwell and the said Thomas I. Folwell and Joseph C. Pancoast, executors as aforesaid, and that his rights could not be and were not affected by the decree in that suit.
    That the complainant is informed, and therefore charges, that neither the said Thomas I. Folwell nor the said Pancoast appeared, or defended the said suit, or attended the examination of witnesses therein. That a decree pro. con. was taken in said suit, and the whole proceedings therein were ex parte ; whether by collusion between the said brothers and Pancoast, who is a brother-in-law, the complainant submits to the court.

      That the first knowledge this complainant had of the pretense or claim of the said Robert Folwell or the said Esther Willis was at the sale of the premises, on the complainant’s execution, on the said 13th January, 1849, after the sale was opened, when the said Robert Folwell gave notice, in substance, so far as the complainant could understand, that a portion of the cedar swamp included within the bounds given by the said execution was claimed by him for Esther Willis.
    That the complainant has since understood that the said Robert Folwell claimed the said cedar swamp for the said Esther Willis, before the sale to the complainant, and, upon inquiry being made of the said Robert Folwell, he declared that the said tract of cedar swamp was not within the bounds of complainant’s mortgage; but he declared to the complainant, after the sale to the complainant, that the said swTamp was and is within the bounds of the complainant’s mortgage.
    That, from the time of the complainant’s purchase, the complainant is informed and believes, the said Robert Folwell has been making great exertions in cutting and removing the said rails &c from and off the said cedar swamp.
    The bill prays an account of the rails &c which have been cut; and that the defendants may be decreed to pay to the complainant the value of such portion thereof as has been sold ; and an injunction restraining the defendants from committing any further waste or destruction of or upon the said cedar swamp, and from removing the rails &c. sold from the place where sold, and from carrying away other rails &c. from the said tract of cedar swamp; and that the rails &c. not sold, as well those lying on the said tract as those which have been removed from it, may be sold, and that the proceeds may be brought into court, to be paid to the complainant towards payment of the balance of his mortgage debt; and for such other and further relief &c.
    Robert Folwell, William Crispin, Bowman Lippincott and Esther Willis are made defendants.
    An injunction was allowed pursuant to the prayer of the bill.
    The defendants put in their joint and several answer.

      They admit the mortgage from Thomas I. Folwell to the complainant ; and that it was recorded as in the bill stated; and that it embraced the cedar swamp of 33 acres which Thomas I. Folwell purchased of John E. Caldwell, by deed dated August 8, 1836, and recorded as in the bill stated.
    They admit that the complainant, on or about June 16, 1848, filed his bill on the said mortgage, and, in September following, obtained a decree of foreclosure and for the sale of the mortgaged premises, for the sum stated in the bill; and that an execution was thereupon issued, and a sale made, as stated in the bill; but whether said mortgage debt was bona fide, or what amount was due on it, they have no knowledge.
    That they were not, nor was either of them made parties to the said suit, noi' had notice of the pendency thereof until the premises were advertised for sale under the said execution.
    The defendant, Esther Willis, admits that she claims title to the 33 acres of cedar swamp mentioned in the bill. And the defendants say, that the said cedar swamp was a part of the real estate whereof Nathan Folwell died seized. That the said Nathan devised the same, with other lands, to his executors, with directions to sell the same and divide the proceeds as in his will directed, and appointed Robert Folwell, one of these defendants, Thomas I. Folwell, Joseph C. Pancoast, Samuel Cornley and Isaac Pine executors. That Pine, Cornley and the said Robert Folwell renounced the executorship; and that the said Thomas I. Folwell and Joseph C. Pancoast proved the will and took upon themselves the execution thereof.
    That on or about July 5,. 1836, the said acting executors made a pretended sale of the said cedar swamp to one John E. Caldwell, for the nominal • consideration of $165, and on the 8th of August, 1836, executed to him a deed therefor. That the said sale was fraudulent, the consideration mentioned not being one-tenth of the value of the said cedar swamp at that time, and was in fact intended as a mere device and contrivance by which to equalize a fraudulent transfer of the said cedar swamp to Thomas I. Folwell, one of the said acting executors, to whom the said John E. Caldwell, on the same 8th day of August, and for the same nominal consideration of $165, conveyed the said premises.

      And the defendants say, that the said Robert Folwell, after-wards, on the 12th October, 1846, filed his hill in this court against the said Pancoast and Thomas I. Folwell, to set aside the said pretended sale as fraudulent and void; and that such proceedings were thereupon had that, on the 28th January, 1848, it was by the decree of this court, among other things, decreed as follows : (giving the decree at length). It declares, that the sale made of the said cedar swamp by the said acting executors to John E. Caldwell, by deed dated August 8, 1836, for $165, and which property was on the same day conveyed by the said John E. Caldwell to the said Thomas I. Folwell, was made without any sufficient consideration, and in violation of the trust reposed in the said executors, and in fraud of the rights of the complainant in that suit; and decrees that the said sale and conveyance to Caldwell, and the conveyance from Caldwell to the said Thomas I. Folwell he set aside; and that the said ceda,r swamp he sold under the direction of a master for the host price that can he obtained for the same.
    And the defendants, Esther Willis and Robert Folwell say that, on the 28th May, 1848, the said 33 acres of cedar swamp were, by virtue of the said decree, sold at public sale, and struck off to this defendant Esther Willis, upon the hid of this defendant Robert Folwell, who bought the same for her and at her request and as her agent, for the sum of $693. The said Thomas I. Folwell having previously to tho said sale cut and carried off’ a large portion of the timber growing thereon. That the defendant Esther Willis paid the said purchase money to the master, who thereupon executed and delivered to her a deed for tho said property, dated June 24th, 1848.
    That it was while the said Thomas I. Folwell held tho said cedar swamp under the said pretended conveyance from J. E. Caldwell that he executed the said mortgage to Joseph Brown, the complainant; and they believe that the object of tho said Thomas I. Folwell in including the said swamp in the said mortgage was, to provide against the contingency, anticipated by him, of said conveyance being set aside for fraud, by passing the legal title out of his hands ; and that the admissions of the complainant in his bill, that before the sale under his mortgage the said Thomas I Folwell stated that the said swamp was not included in said mortgage, and that he was first informed that it was so included after he had purchased the mortgaged premises, confirms these defendants in their said belief, and shows that he did not understand that at the sale he was buying the said swamp, and that, therefore, the purchase money he gave was given for the other premises, not including the said swamp.
    And these defendants insist, further, that inasmuch as the deeds, from the said acting executors to J. E. Caldwell, and from said Caldwell to Thomas I Folwell, were both on record at the time said mortgage was given, and bore on their face the badges of fraud, the complainant, even if he meant to take this mortgage •on the swamp, was chargable with notice that the said pretended title of Thomas I. Folwell to the said swamp was fraudulent and void; and that the complainant is not entitled to be considered in this court as a bona fide mortgagee without notice of defect of title.
    The defendants admit that the complainant procured an execution to be issued on the decree obtained on his mortgage and that he became the purchaser of the mortgaged premises at the sale under the said execution, embracing the said cedar swamp and a large amount of other real estate, for f>1T000, which, the defendants believe, was little more than half its real value without the cedar swamp.
    The defendant Robert Folwell says, that he attended said sale and, as the agent of the defendant Esther Willis and at her request, forbade the sale of the cedar swamp ; gave public notice to the bidders and to the said complainant that the said Esther was the owner thereof; and read the decree of this court setting aside the said deed to John E. Caldwell and the said deed to Thomas I. Folwell; and that the master who made the said sale also stated to the same persons present at the sale, publicly, that the title out of which the complainant’s mortgage had grown had been set aside as fraudulent, and the said cedar swamp had been subsequently sold under the decree of this court, and purchased by the said Esther Willis.
    This defendant admits that he entered upon the said cedar swamp and cut and took away a large quantity of cedar rails, logs, poles, &'c., as charged in the bill, and caused the same to be hauled off said premises, and sold the same. That they were removed from the said premises a distance of half a mile, and piled up on the fast land for the purpose of being sold; and that schedule A., annexed to this answer, contains a true account of the quantities of each kind thereof, and of the prices at which they were sold, and the names of the persons to whom sold, and the expenses of cutting and carting the same to the fast land and of selling the same; but that he acted, in all this, as the agent of the said Esther Willis, who was and is the owner of the said swamp, and at her request and by her direction. That he does not know whether the complainant had knowledge of the cutting or not, but that the same was done openly, and in the exercise of what he deemed the understood right of the said Esther Willis. That the complainant’s tenants, who lived on complainant’s farm adjoining, knew of the said cutting and carrying away at the time; and the complainant knew of the cutting and carrying away, at the time and before the said mortgaged premises were sold; and several conversations were had between this defendant, agent as aforesaid, and W. N. Jeffers, solicitor and counsel of the complainant, about the said cutting and the said cedar swamp, at the time of and previous to the sale of said mortgaged premises : and that the said sale was made upon public notice by advertisements in Woobury and Camden, and also in Philadelphia; which advertisements, he admits, were in the form and language set out in the bill.
    The defendant Esther Willis says, that the said cutting, carrying away and selling were by her direction and authority; and that the defendant Robert Folwell was employed by her to attend to her business.
    The defendants Robert Folwell and Esther Willis admit that the said Robert is not a man of much property; though they deny that he is an irresponsible man as charged in the bill; but they say that the said Esther is the responsible person, who is able and willing to respond, &c.; and that she is a person of property, able to answer-to any amount for damages that may be adjudged, &c.
    The defendant Robert Folwell admits that the complainant attended the said sale of rails, &c., and gave some such notice as stated in his bill.
    The defendants Crispin and Lippincott admit that they were purchasers at said sale &e.
    The defendants admit that the cutting and taking away of said 'property from the cedar swamp would be an injury and damage-to the complainant if his title to said swamp was valid; but they deny that he has a valid title to the same, and insist that the title is in the defendant Esther Willis.
    The defendants Robert Folwell and Esther Willis deny that the cedar swamp was purchased by the said Robert in the name of the said Esther for his own use and benefit; but say that the said purchase was made for the sole and exclusive use and benefit of the said Esther; and that the said Robert has no other interest in the said premises or the property taken therefrom than what he has as the agent of the said Esther, who is the exclusive owner thereof.
    The defendant Robert Folwell admits that the complainant was not made a party to the bill filed against Thomas I. Folwell and Joseph C. Pancoast to set aside the deeds to John E. Caldwell and to Thomas I. Folwell; and that the reason was that this defendant had no knowledge of the fact that the said mortgage from Thomas I. Folwell to the complainant embraced the said cedar swamp ; that though the said mortgage was on record, it did not particularly describe the said cedar swamp by metes and bounds ; and this defendant did not know or believe that it embraced said swamp; and that he had no suspicion of such being the fact until he saw the advertisements, a few days before the sale under the complainant’s mortgage; and that then, on inquiring of the solicitor and counsel of the complainant, at the •him pi of the sale, whether it did embrace the said swamp, the said solicitor and counsel told him it did not, and tried to dissuade the said Robert from recording the decree setting aside the said deeds, as aforesaid ; and the complainant, after he had bought in the mortgaged premises, told this defendant that he (the complainant) did not know whether they embraced the said swamp or not; and this defendant attended the sale, and gave the notice forbidding any sale of the cedar swamp and asserting Esther Willis’s title, out of abundant caution, as he had not been able to satisfy himself whether the said swamp was embraced in the mortgage or not; hut thought the description of the property broad enough to embrace it.
    Tho defendants Robert Folwell and .Esther Willis say, that at the time of the decease of the said Nathan Folwell they both resided in Philadelphia ; and that they continued to reside there until 1846, in which year they both removed in New Jersey, where they now reside ; and that, not being made partios to the complainant’s foreclosure suit, they had no suspicion, until after his said decree and the advertisements for the sale of the mortgaged premises under it, that he had any pretence of claim, or interest in the said cedar swamp.
    The defendant Robert Folwell admits, that neither Thomas I. Folwell nor Joseph C. Pancoast appeared or defended the said suit brought by this defendant to set aside the said deeds to to John E. CaldAell and to Thomas I Folwell, or attended tho examination oí witnesses in the said cause, and that a decree, pro confesso was taken against them ; hut he denies that there was any collusion between Mm and them or either of them; and denies that the first knowledge the complainant had of the claim of the said Esther was on tho sale of the premises upon his execution.
    The defendants Esther Willis and Robert Folwell say, that all the rails, &c., so cut woro carried away; and that none thereof, of any kind, now remain on the said cedar swamp.< They admit that about half of tho said cedar swamp has been cut off; and that tho said Esther intends to cut off the remainder.
    On the hill and answer a motion was made to dissolve the injunction.

      T. II Dudley in support of the motion.
    He cited 1 John. Ch. 318; 8 Ves. J. 90, note; 2 Green’s Ch. 282, 234, 429; 3 Ib. 177, 452; 6 John. Ch. 500; 7 John. Ch. 317; 1 Pet. C. C. Rep. 356; 2 Bac. Ab. 688; 1 P. Wms. 527; 5 John. Ch. 169; 3 Atk. 262; Ambl. 54; 6 Ves. Jun. 51; 3 Paige, 213; Story’s Eq. Jur. sec. 909; 7 Ves. Jun. 305; 19 Ib. 152; Sax-

      ton’s Ch. 476, 454; 8 Bin. Rep. 54; 4 Ib. 43; 2 Halst. Rep. 175; 6 Ib. 385, 393; 6 Bin. Rep. 118; 2 Ib. 466; 1 Gallison, 411 2 Sugd. on Vend. 335, 542, 3, 4.

      W. N. Jeffers, contra.
   The Chancellor.

For the present the injunction will be dissolved except as to further waste.

As to the rails, &c., which have been cut, they have been removed from the swamp, and have been struck off to bidders at a public vendue, at the place to which they were so removed. It is asked that the injunction be continued to prevent the bidders from taking them away from that place. If the injunction in this respect should be continued, it would be proper, the title being in dispute, that the court should direct a sale, and that the proceeds be brought into court to abide the event of the suit. But I see no good reason for this course. Esther Willis is responsible in trespass, if it be a trespass on property of the complainant, and is able to respond. And I am inclined to think that the injunction should be dissolved altogether. As to future cutting, the complainant would have the same remedy above mentioned, if he is in possession. If he is not, and it must be taken, under the pleadings, that he is not, ejectment and rule to stay waste will protect him. The title is in dispute ; no action at law has been commenced; Esther Willis is able to respond; and there is, to say the least, nothing persuasive in the case, as it appears by the bill and answer, to induce the court to continue an injunction.

The injunction was afterwards wholly dissolved.


source: Caselaw Access Project

author:
The Chancellor.
      The Chancellor

license: Public Domain

text:
    Charles J. Wolbert, Jun., v. Richard C. Harris, William D. Harris, John W. Harris and Benjamin M. Harris.
    The exclusion of one partner by the other from participation in the business oi' the partnership is a ground for injunction restraining the excluding partner from collecting debts due the partnership, and for the appointment of a Receiver.
    As a general rule, the Court will notorder the business of a partnership to be continued by the Receiver.
    The bill, filed March”28th, 1849, states, that the complainant, on the 24th November, 1848, was preparing to go into business at McCartyville, in the township of Washington, in the county of Burlington; and for the purpose of effecting that object and prosecuting his contemplated business advantageously, did, on that day, enter into a written lease tinder seal, between Malilon Hutchinson, of Philadelphia, the Burlington County Bank, at Medford, and Thomas Haven of Burlington, of tho one part, and the complainant, of the other part, witnessing, that in consideration of $1, and of certain rents, covenants and agreements therein reserved and contained to be paid, kept and performed by the complainant, the said party of the first part leased to him and his assigns all that paper mill, grist mill, saw mill, mansion house, tenant houses and store house, with the land adjacent thereto, recently owned by the Wading River Canal and Manufacturing Company, situate at McCartyville aforesaid, to hold for two years from tho 28d day of said November, 1848, payable yearly therefor $1,000, in quarterly payments, the complainant also paying all taxes not exceeding $40 yearly, and keeping the premises in as good repair a3 they were then in, except such repairs as might he rendered necessary by the breaking of tho dam or water wheels or the blowing up or bursting of the machinery ; taking from the premises sufficient wood and timber for the doing thereof; wear and tear and unavoidable accidents excepted ; it being expressly understood and agreed between the parties, that out of the first year’s rent an amount not exceeding $500 might be appropriated by the complainant towards putting said mills in repair.
    That on the 24th of November, 1848, the complainant took possession under the said lease, of the said premises, including also a large amount of personal property purchased of the proprietors, viz: store goods, wood, &c, on the premises, of about the value of $500, with the privilege of using and taking any such articles of furniture on the premises as might be needed, on terms hereafter to be agreed upon.
    That he made arrangements with Mrs. McCarty to act as his housekeeper in'the mansion house, at $1 50 per week. That he brought stoves and bedding and a variety of articles of furniture; fitted up a bed-room for his accommodation; had his washing and mending done there; and proceeded in all things after the manner of permanent residents. That his wife remained with her parents, in Philadelphia, until another room on the second story of the mansion house should be prepared, by putting up a stove, &c, for their better accommodation; expecting to move there before the then ensuing Christmas; and was alone prevented by the delay and disappointment of the desired repairs from making McCartyville her permanent residence, with the complainant, during the said term.
    That Mrs. McCarty had immediately entered upon her appropriate duties; and the complainant proceeded with the general business operations of his engagement.
    That on the 11th December, 1848, he entered into an agreement in writing, under seal, with. Richard C. Harris, of Philadelphia, witnessing, that the said parties have formed a co-partnership for the manufacture of paper, carrying on grist mill, saw mill, keeping store &c- on the said premises, the said premises being now leased by the said Charles J. Wolbert, Jun., for the mutual benefit and purposes of this co-partnership, under the name and firm of Wolbert & Harris, upon the terms and conditions following, viz : The partnership shall commence on the day of the date thereof, and shall continue until’No'vember 24,1850, and so long thereafter as the parties shall mutually agree; the net profits of the business of the firm shall be equally divided; and the losses equally borne. Neither partner to withdraw from the firm in any one year more than $600 ; the balance of net profits to remain undivided during the partnership. Neither party to indorse any note or hill of exchange, nor nse the name of the firm, except for the transaction of the regular business thereof; nor shall either, without consent, loan any money on his own responsibility; and if either violates this article the other may forthwith annul the partnership and proceed to settle up the business thereof, and upon such settlement to pay over to such offending partner such sum as he may be entitled to. And if at the end of the lease the said Charles J. Wolbert, Jun., should ho enabled to procure a new lease for the purpose of prosecuting the said business, it should be optional with the said Harris to continue; or if said Harris should obtain a lease of the premises it should he optional with said Wolbert to continue or not. And in the event of one continuing the business and the other wishing to withdraw, he shall he paid a sum or equivalent to compensate Mm for the good will, fixtures &c, that may have accrued since the formation of the partnership ; and if the said equivalent cannot he mutually agreed upon it shall he determined by a third party mutually chosen. In case of difference of opinion in any matter relating to the business of the firm, the decision of a third party mutually chosen shall he conclusive. Subscribed, sealed and delivered, the said lltli December, 1848.
    That, in pursuance of said agreement, the complainant and his said partner did thereupon proceed in the said business, upon the terms therein prescribed ; having opened an account current with Wm. D. Harris, a brother of his said partner, at his establishment in Philadelphia, for stock, and materials requisite for carrying on the business of the said firm ; the complainant continuing to reside at the said premises.
    - The complainant avers that he, as one of the said partners, proceeded in the conduct of the business of the firm in scrupulous observance and fulfillment of the stipulations and covenants contained in the said agreement of partnership, without objection or complaint on the part of his said partner.
    That, having occasion to visit Philadelphia on the business of the firm, raising funds for the hands, and to provide additional machinery, he left the works on Sunday, the 4ih of February, 1849, and the next day met with his partner at the store of the said William D. Harris in Philadelphia, when arrangements were then made between them and the said Wm.. D. Harris to raise funds for the use of the firm, upon their stock of manufactured paper in his hands; and it was then and there agreed, on the suggestion of the said Richard C. Harris, that he should go to the factory at McCartyville, and the complainant should remain in Philadelphia until the said Richard’s return to said city in a few days. That during this time the complainant repeatedly called on Wm. D. Harris, who was receiving constant remittances of paper from the firm, to ascertain what amount of funds he was raising &c. That, instead of giving satisfaction, he seemed desirous of evading the complainant’s inquiries; and did not give an account, or specify any amount whatever ; and finally refused to comply with the complainant’s inquiries, or to give him any information on the subject; assuming a mastery in the business, as appertaining to himself as proprietor rather than to the complainant. And the complainant then inquired whether he had heard from Richard, and whether he did not desire the complainant to return to the works ; and received for answer that “ he had received no letter from the complainant.” Whereupon the complainant became alarmed and suspicious, and said u Well, I’ll go back any how.” That the complainant had not heard from his said partner during all that period, though he afterwards understood that he had been in Philadelphia several different times during this interval. That the complainant had been greatly afflicted, while in the city on that occasion, for eleven days, with inflammation of the throat. That on Wednesday,, February 28, 1849, he returned to McCartyville, when, to his amazement and confusion, he discovered that a strange revolution had taken place at the establishment. The bill, after stating some minor matters, proceeds to state, that the complainant then sought after the books of the firm where they had been usually kept; that they were locked up, and all writing materials missing. That he then went to the paper mill to see Isaac Brown, who occupied a house he had promised to James Gibson, another hand. That he found another man at work whom he had previously discharged; and upon inquiry he soon ascertain-the existence of a mutinous conspiracy on the premises. The tender of the machine, John Cole, and other persons whom the complainant had himself employed upon taking possession of the promises, refused to obey bis orders. Tho clerk, Benjamin M*. Harris, a brother of complainant’s said partner, had possession of the keys, and, upon request of John W. Harris, refused to deliver them to the complainant. That they locked up the store, and John W. Harris refused the complainant admission or an inspection of tho books of the firm; refusing the complainant access thereto. That the said John W- Harris, the father of the complainant’s said partner, with great rudeness and clamor interrupted tho progress of tho complainant at tho premises, denying his authority; asserting that tho complainant had no right there, with menaces of personal violence rudely pushing him aside at the store door, it being then locked; and forbade the workmen to mind or submit to the orders and requests of the complainant.
    That tho complainant was wholly at a loss to account for this sudden and extraordinary chango until, two days after, he observed in the North American and United States Gazette of Feb. 27, 1849, tho following notice :
    “ Dissolution of co partnership. The firm of Wolbert & Harris is this day dissolved. All those having claims, and those indebted, will present them to mo for settlement.
    Feb. 27, 1849. R. C. HARRIS.”
    That tho complainant was astonished at the said publication, it being without his knowledge or the slightest intimation made to him. That immediately thereupon, on the 8d of March, 1849, he caused the following to be published in the same Gazette :
    “ Notice. An advertisement of the dissolution of tho firm of Wolbert &, Harris appeared in this paper on tho 28th ult. No such dissolution has taken place, as the subscriber has not withdrawn from tho said firm, nor authorized the previous notice. Any business negotiated by or for tho firm of W. & H. must bo authorized by me. C. S. WOLBERT, Jr.,
    Lessee of tho Wading River Mills.”

      The complainant avers that he is informed and believes, that the said Richard C. Harris, his co-partner, hath combined and confederated, by corrupt and fraudulent agreement with his said brother, Wm. D. Harris, his said father, John M. Harris, and his said other brother, Benjamin W. Harris, neither of whom is reputed or believed to be responsible ; and that the said John and Benjamin do now assume to have exclusive charge and custody of the said mill property and estate and premises originally appertaining to this complainant, specified in his said lease, all of which accrued to thé1 benefit of the said firm as aforesaid; and, acting as parties^with or agents for the said Richard C. Harris and Wm. D. Harris, have and do forcibly exclude the complainant from any participation or influence in the conduct or management of the business of the said partnership, and from the use of the keys of the premises and accustomed entry into the store or inspection of the books of account of the firm.
    The bill prays an injunction restraining Richard C. Harris, Wm. D. Harris, John W. and Benjamin M. Harris from receiving and collecting the debts due and to grow due to the partnership, or that may accrue out of the'business transactions appertaining to the said premises since the 27th of Feb. 1849 ; and that a receiver be appointed ; and that proper directions may be given for the conduct and management of said business in future for the sole use and benefit of the complainant, until he shall he restored to his original, individual and separate estate and interest in the premises under his said lease; and that he be enabled, by the decree of this court, to resume the business in his own name and to his own use and benefit, and fulfill and perform the covenants contained in the said lease, freed from all connection with or responsibility to the said Richard C. Harris ; and that the said partnership may be dissolved ; and that the said Richard C. Harris come to an account with the complainant of the partnership dealings and transactions from the commencement thereof to the said 27th Feb. 1849 ; from which day the partnership should be held to be dissolved by his own act; and that the said Richard, William, John and Benjamin come to an account of the business transactions appertaining-to the said premises from and after the said 27th Feb. 1849.

      An injunction was allowed and a receiver appointed.
    Richard C. Harris, William 1). Harris and John W. Harris put in their joint and several answer.
    They admit that the complainant and Richard C. Harris were in partnership, under the firm of Wolbert & Harris, and carried on the business of paper making and a store connected therewith ; but the origin and formation of the partnership and all the asserted transactions connected therewith are untruly stated in the bill; the facts being distorted and misrepresented.
    Richard C. Harris, answering for himself, says, that in March, 1848, the said Wolbert rented a paper mill in Delaware county, Pennsylvania; and it was proposed to this defendant, Richard C. Harris, to become a partner with him in carrying on said business. That he entered into articles of co-partnership with said Wolbert, dated March 27, 1848, as follows, (giving the articles.) This partnership was to continue until April 1, 1849, and thereafter, from year to year, so long as the parties thereto should mutually agree. Wolbert was to contribute-, (the blank left for a sum is not filled up ;) and Richard C. Harris a like sum. Neither wras to withdraw from the firm in any one year more than $864. (In other respects the articles of partnership stated in the answer are the same as set out in the bill-)
    That, soon after the commencement of business under this firm, difficulties arose between the complainant and the owner of the property; and there was not a sufficient supply of water.
    Hearing, in the course of a few months, that the property at McCartyville was to be rented, and having consulted with his partner in relation thereto, it was agreed between this defendant and the complainant, that the complainant should go and view the premises, and if in his opinion it would answer, rent the same for the use of the firm. That the complainant went, and rented the said premises; and in a few clays the complainant and this defendant went together to McCartyville; were together with Mrs. McCarty, and made the arrangement for her to keep house, and united in fitting up the dwelling house, in taking possession of the premises, and in every act done or proposed. He says it is not true that the complainant purchased any goods, or brought any to McCartyville at the time he mentions. That a quantity of goods, such as is mentioned in the bill, was purchased of the owners of the property; and a draft drawn by the firm of Wolbert & Harris on Wm. D. Harris; which draft was paid by said Wm. D. Harris. The complainant may have put a small old stove or two in the house, which is all the goods he ever had there.
    He says that he left the drawing of the lease from the owners to the firm of Wolbert & Harris to the complainant; for he did not suppose he would practice a deliberate fraud on his partner ; and this defendant’s surprise was great when he discovered that the lease had been taken in the name of the complainant ; but, as another lease could not be executed by all the parties without much trouble and inconvenience, and the complainant having finally agreed that a new article of partnership which should set forth that the lease was for the entire use and benefit of the firm, this defendant yielded to the measure. (The sentence is so in the answer.)
    He says that the partnership entered into on the 27th March, 1848, had not been dissolved; but, considering that a new article of co-partnership was necessary, in consequence of a lease being drawn in his name, and a change of location, duration of time, and other slight alterations, such article was drawn and executed by the complainant and this defendant, and is, as this defendant believes, in substance the same set out in the bill, as by a duplicate &e. will more fully appear.
    He insists that the allegation in the bill that the complainant entered into co-partnership with this defendant after he obtained the lease for the works and premises is erroneous, as he originally leased the said premises by parol, on or about Nov. 1, 1848, for the firm, but afterwards, in drawing the lease, fraudulently suppressed the name of this defendant and that of the firm.
    And he says he is informed and believes, and therefore charges, that when asked by Mr. Haven, one of the lessors, why he took the lease in his own name when he had taken the property in the name of the firm, he replied that this defendant was only in partnership with him in the store; which statement this defendant charges to be false, as is proved by the said article of co-partnership above recited.
    He says that, on or about Nov. 28, 1848, this defendant commenced operations at McCartyville, and pursued the business of tho firm with fidelity and industry; so much so as seriously to affect his health; but soon tho complainant began to show his true character. He was not in McCartyville one-third of his time. He was in Philadelphia, attending amusements ; paid very little attention to the business of the firm. He undertook to keep the hooks of the firm, but did not do it; and what he did do few people can understand. Ho assumed the right to dictate, throughout all the works, in tho most rude and boisterous manner. He endeavored to obtain credit for goods in Philadelphia, while idling his time away in that city; but no one would trust him without a guarantee of this defendant or his brother. Ho collected and took up money in the city where goods had been delivered by the order of Wm. D. Harris, to whom such goods had been charged ; and, while thus wasting his time in the city, this defendant sent to his brother Wm. D. Harris 50 reams of paper, which were placed in his store in Philadelphia ; and while said Wm. D. Harris was gone to dinner, the complainant, having ascertained that the goods were there, removed the same to an auction store, and obtained an advance upon it, and it was sold the next day and the money received by him. He appropriated money of the firm to his own private use whenever he could obtain it. He obtained estimates for large improvements of the property at McCartyville, of which the firm were mere tenants, with cupolas; and squandered the money of the Company in going to and from the city when there was not any business to he transacted, and the only course of business was to make what paper we could and send it to Wm. D. Harris, who would sell the same and advance us stock and money as we wanted it. The complainant proposed to open a store for tho sale of our manufactured paper in New York, and threatened to do it in order to enlarge the credit, or rather the indebtedness of the firm.
    He admits that the strange conduct of the complainant excited his suspicions, and induced this defendant to believe that the complainant’s object was to engross a large amount of property in tbe hands of the firm, by reason of the credit of this defendant, through his connections and friends, and take the chance of fortune for the payment.
    And this defendant is informed and believes, and therefore charges, that the complainant, when inquired of by this defendant’s father as to the prospect of profits, said that he was determined to run the firm to the utmost of its credit, and take care of Wm. Harris and Mr. Fisher, and let the other creditors whistle for their money.
    That this defendant found that the complainant had no means ; that he had failed in business before; that notes were given by him for his old debts ; and that the firm of Wolbert & Harris was liable to be broken up and its credit ruined by suits against him and leyys upon his interest in the firm. That this defendant” was obliged to settle a claim against him on account of his old debts, to prevent judgment and execution, by paying the costs.
    That from his labor and exertions at the works he brought on an attack of disease which required medical attendance, and he left McCartyville for Philadelphia, leaving the complainant in charge of the works; and in a few days the complainant left McCartyville also and came to Philadelphia, leaving all the works in the care of the workmen, without any superintendence, orders or instructions. But the complainant did not call on this defendant, nor was there any proposition to raise funds, nor did he come for any such purpose, as none could be raised until the stock on hand could be worked up and remitted to Philadelphia.
    Under these circumstances, and finding it impossible to continue the business of the firm any longer, as he could not obtain any further advances, and that the firm was indebted to his brother in $2,636 54, and was insolvent, without any prospect of being able to make payment, he caused a full and fair inventory of all the stock and personal property belonging to the firm to be made at McCartyville, at the cost of said property, and, on the 22d Feb. 1849, sold and transferred the said personal property to the said Wm. D. Harris.
    He says he has not received any money from said firm, except about $60, for Ms own personal use, from the formation of tbe partnership, in March, 1848; that he made this transfer as the only means of paying the debts of the. firm of Wolbert & Harris, as every article contained in the said inventory, all the goods and chattels of every description at the works having been supplied by the said Wm. D. Harris, or the payment thereof guaranteed by Mm.
    That upon such transfer the amount of the said inventory, being $1,103 21, was credited to Wolbert & Harris, leaving a large balance due said Wm. D. Harris ; and the said John W. Harris, the father of said Wm. D. Harris, was appointed the agent of the said Wm. D. Harris to take charge of the said works at McCartyville.
    And this defendant, considering that Wolbert had violated the said articles of co-partnership in every essential part, admits that on the 21th of Feb. 1849, ho published a notice of the dissolution of the co-partnership as set forth in the bill; as he submits he had a right to do.
    He says that in the. forming of the partnership, in March, 1848, the arrangement was made with Wm. D. Harris, who was and is largely dealing in the business of paper and the stock and materials for making paper, that ho should furnish the stock and funds for establishing and carrying on the manufacture of paper ; and that all paper made by the firm should he sent to him in Philadelphia; and that he should bo allowed 5 per cent, commissions on all the paper manufactured, for his advances and agency; and that this agency continued up to the day of assignment and transfer of the property, on the 22d Feb. 1849.
    He denies that there was any arrangement made between the said firm and Wm. D. Harris to raise funds for said firm; the said William having refused to furnish any more funds until he should be paid for what he had already advanced or a portion thereof.
    Ho admits that he saw the complainant at the store of his brother, in Philadelphia, about the time mentioned in tbe bill; he had but little conversation with him. He denies that there was any arrangement with the complainant that this defendant should go to the factory in McCartyville and that complainant should remain in Philadelphia. He went to MeCartyville of his own accord, as an act of duty, to look after the interests of the firm; which interests he had deserted.
    He denies that there was any combination or agreement to injure the complainant, or any such intention or motive. His brother William being a large creditor, and having guaranteed all other debts except a small balance to the workmen, whom he is willing to pay, as the firm had no credit, and now fully understanding the character of the complainant, he proposed to transfer the property of the firm to his said brother William, who agreed to carry on the works, and, if any profits should be made, to carry such profits to the credit of said Wolbert & Harris, in liquidation of their debt.
    He says his father has no interest in the business. That his brother Benjamin is under 21, and was fixed upon as the clerk of the firm, and had no interest in the concern except his stipulated salary.
    He says he is ready to come to an account with the complainant of the partnership transactions from the commencement of the partnership business to the dissolution thereof. And he agrees that the partnership is or ought to be dissolved and the property restored to the said Wm. D. Harris, as the only means of paying said debts ; and he prays that the court will so order and decree.
    And Wm. D. Harris, answering for himself, says, that in March, 1848, being in the paper business, and having on hand a large stock of goods for the manufacture of paper, it was proposed to employ Wolbert, who was out of business and had formed some acquaintance with this defendant, in a paper mill; and, in pursuance of such proposition, Wolbert, on or about March 22, 1848, rented a paper mill in Delaware county, Pennsylvania; and between that day and the 27th of the same month, it was arranged that Richard C. Harris should form a partnership with Wolbert in that business. This defendant then supposed that Wolbert had some means; and in drawing the article of partnership the 2d article stipulated that he should contribute, as his ■share of the capital stock, the sum of-, and that Richard C. Harris should contribute a like sum. But when the article was about to be completed Wolbert said he had no money or means, and that the co-partnership must fall through unless this defendant advanced the capital; and as the mill had boon rented, and this defendant was anxious to aid Wolbert, and believing he had honesty, industry and integrity, in all which he has been disappointed, he agreed to advance the capital necessary to commence and continue operations, upon condition that all the paper made should be sent to his store in Philadelphia, and that he should have 5 per cent, commissions on the paper made and sold, for his agency and advances, that being the usual allowance ; which advances he made, and the firm commenced business at said mill in Pennsylvania; every dollar of the capital being advanced by him. He also aided in procuring hands and workmen.
    In a short time it was found that the mill in Pennsylvania did not answer, there not being sufficient water. And this defendant being in New Jersey after workmen he learned that the McCarty villo works were to let, and recommended to Wolbert & Harris to see the works, and if they would answer to take them and give up the works in Pennsylvania. They did so ; and under the same agreement this defendant furnished the capital to carry on the business at McCartyville. lie furnished the money to pay the expenses of going down to view the promises. The said firm of Wolbert & Harris had no credit; and the defendant guaranteed the payment of store goods and such articles as wore wanted and he had not on hand or did not deal in.
    The said firm commenced operations about Nov. 29, 1848, at McCartyville; and it was soon perceived that the complainant did not attend to the business of the firm. He was often seen in Philadelphia taking his pleasures, and constantly soliciting money from this deft; and though this def’t believes that his brother Richard worked hard and did all in his power in the business, yet the remittances of paper came in slowly and in small parcels. In the meantime Wolbert was in the city endeavoring to lay his hands on every dollar he could obtain, which disappeared so soon as as he received it. And, upon a load of 50 reams of paper coming from McCartyville and being placed in this defendant’s warehouse, Wolbert induced this defendant’s porter, while this defendant was gone to dinner, to allow him to take said 50 reams of paper, and Wolbert took it to an auction store, received an advance upon it, and it was sold at auction the next day, and Wolbert received the proceeds of the sale thereof. And, in order that he might appear comfortable to return to McCartyville, this defendant was obliged to give an order upon his shoemaker and upon his tailor, rather than trust Wolbert with money. Hearing, about this time, of many acts and doings of Wolbert, and fearing that things were not going on right, this defendant requested his father, John W. Harris, to go and see how matters stood at McCartyville. He found things in a bad state; and upon his representing to Wolbert the impossibility of continuing under such circumstances without utter ruin, Wolbert stated that he intended to get all the property into his hands, or the hands of the firm, that he could by credit; and said, C{ we (the firm) will take care of your son (this defendant) and Fisher and you, and the rest may whistle for their demands. If they will only hide, I will steal.” And on his journey from McCartyville to Philadelphia, on the 14th January, 1849, Wolbert detailed to the said J. W. Harris, as this defendant is informed by said Harris, that he, Wolbert, had arranged the prize fight between Rusk and Freeman, some two or three years ago, which resulted in the death Freeman ; and boasted that he got up the fight and held the stakes until two or three days before the fight. The conduct of Wolbert so shocked and alarmed this defendant that he resolved to have as little intercourse as possible with him ; and on or about the 22d Feb. 1849, the said firm was indebted to this defendant in $>2,636 54; and upon inquiry of his brother this defendant found the whole amount and inventory of property at McCartyville amounted to f1,103 31; and that the goods and other property was being wasted, and in a short time would all be exhausted, and no means left to pay this defendant or any other person.
    Under these circumstances this defendant agreed with his brother Richard to purchase the said goods, chattels and property of the said firm, and did purchase the same, at the cost prices set down in the inventory, amounting in the whole to $1,103 31, and gave credit to the said firm in liquidation of their indebtedness to this defendant; and after giving every credit the said firm owed this defendant on that day $634 04.
    This defendant agreed with the said firm, through the said Richard, that he would run tho said works, and if any profits' should be realized the same should he credited to the said firm in payment of their indebtedness to him. This defendant requested Ms father, J. W. Harris, to take possession of the property, and and authorized him to continue B. W. Harris as clerk in the store.
    He denies that he was actuated by any fraudulent motives, or was guilty of any impure or fraudulent conduct. That he believed then, and does now, that it was the only way of saving the property from the reckless and fraudulent conduct of Wolbert 5 every dollar of which had been furnished by this defendant. He admits that Wolbert did occasionally hang about the store, 'and may have asked tho question stated in the bill; but this defendant had other business to attend to, and may have felt too much repugnance to attend to him.
    He insists that he had a right to purchase the said property of the said Richard C. Harris, as the partner ; that it is his lawful property and ought to be restored to him. That the stopping of the said works is a great injury to him in his business, and to the laborers and workmen and their families dependent on this defendant, who are thereby thrown out of employment.
    That this defendant also has contracts for the delivery of paper, with his customers, whereby he will sustain great loss and injury ; and he offers to give the most ample and satisfactory security, to be fixed by this court, to answer any damages or any decree which may be made in this cause. And ho prays that, upon giving such security, the injunction issued in this cause may be dissolved, and the proceedings appointing a receiver he set aside.
    John W. Harris, answering for himself, says, that being authorized by his son William D., he took charge of the mills and property at McCartyville, after the same was sold and conveyed to the said William D. by Richard C. Harris, partner of Wolbert, and carried on the business for tho said Wm. D. Harris and in liis name. The business went on much better than before. The hands were entirely satisfied, and we made a considerable quantity of paper, which was sent to Wm. D. Harris in Philadelphia.
    On the 28th February, 1849, Wolbert arrived at McCarty-ville, came into the store and went behind the counter. After remaining a short time he went out, and the store door was locked. He went into the mill; and soon came to this defendant and demanded some keys. This defendant replied that he could not give him the keys, as the property now belonged to William D. Harris, whose agent this defendant was. This defendant was standing at the store door. The complainant demanded the key of the store door and it was refused him. He got into the store through the window, breaking the sash and glass; went directly to the money drawer, broke the lock of the drawer and took out the money, about dollars, and returned with it through the window. As this defendant demanded the bag of him, he struck this defendant a severe blow on the hand, and said “ take that;” and shortly after went to the stable, broke the lock and took out a horse belonging to the premises which was transferred with the other property to the said Wm. D. Harris, and made his escape to Philadelphia. The horse has not been returned ; and this defendant has reason to believe that Wolbert has sold him and put the money in his pocket.
    He says he has no interest in the controversy ; and denies that he entered into any fraudulent combination with his sons mentioned in the bill of complaint, or with any other persons, to injure the complainant and turn him out of the property. He requested the hands to treat Wolbert with civility, but not to obey his orders.
    On this answer a motion was made to dissolve the injunction, and vacate the order appointing a receiver.

      W. JV. Jeffers in support of the motion.
    He cited 3 Kent’s Com. 40, 41, 45, note A., 46, 53, 4, 60; 3 John. Rep. 68 Paige, 30; 1 Montag. on Partn. 22, note, 23; 5 Cranch. 289, 300; 7 East. 211, 213; 12 Mass. Rep. 54; 11 Ib. 476, 481.

      S. R. Hamilton and W. Halsted contra.
    They cited Story on Partn., pages 156, 7, 8, 9, 461; 4 Wash. C. C. Rep. 232; 5 Paige, 40, 1; 5 Barn. & Ald. 405.
   The Chancellor.

On the bill and answer there can be little doubt that the partnership will be dissolved. Both parties ask a dissolution; and the circumstances seem to require it.

The injunction, so far as it restrains the defendants from receiving and collecting the debts due or to grow due to the partnership, was proper ; and the appointment of a receiver for the purpose of collecting such debts and taking charge of any remaining property of the firm which he could get possession of was proper. The bill charges, and the answer admits, that the complainant was excluded from the premises. This is a prominent ground for such injunction and the appointment of a receiver. 1 Swanst. 481; 1 Turn, and Russ 496. I do not see that either branch of the motion can prevail.

What the receiver should do in this case under the charges in the bill and the statements in the answer is another question. The bill and the prayer of it extends to the restraining the defendants from receiving and collecting the debts that may accrue out of the business transactions appertaining to the premises since the 22d of February, 1849, the day on which the alleged salo and transfer of the partnership property by Richard C. Harris to William D. Harris was made; and that proper directions may be given to the receiver for the conduct and management of the business in future, for the sole use and benefit of the complainant, until he shall be restored to his original, individual and separate estate and interest in the premises under the lease mentioned in the bill, and he be enabled by the decree of this court to resume the business in his own name and to his own use and benefit.

Whether the complainant is right in his claim that the lease was made to him individually and must be so considered in this court is a question to be settled, not on this motion, which is a motion by the defendants to dissolve the injunction and vacate the order appointing a receiver, but on the final hearing. And this question has not been affected by the order for injunction and receiver.

There is no application now before the court for directions to the receiver to proceed in the conduct and management of the business to the end contemplated by the complainant in his bill. The court, therefore, could not now act in reference to the right claimed by the complainant that the lease is his individually. And, again, if the lease belongs to him individually, and he has been excluded from the premises, he has an immediate remedy at law.

If, as claimed by the answer, the lease is to be considered as made to the partnership, it is not probable that an application by the complainant for instructions' to the receiver to proceed with the business until the determination of the cause would be successful. The object of the court in appointing a receiver on a bill for the dissolution of a partnership is the care of the partnership property until the cause shall be decided, not the conducting of the business of the partnership. It is the court itself, that, by its officer, the receiver, has the care of the partnership property, and that, not in behalf of the complainant or defendant only, but of all the parties. As a general rule, the court will not order the business to be continued by the receiver.

In either view of this question as to the lease, no action of the court as to the possession of this mill &c. can now be had; for the reasons before given. And, further, this court could not properly change the possession — turn a third party out and put its officer the receiver into possession, as between the partnership and a person claiming the lease adversely to .thepartnership. On the other hand, if the lease shall be considered as made to the partnership, the course of the receiver will be to sell the lease, as well as the other property of the partnership of which he can obtain possession.

As to the argument for dissolving the injunction derived from the fact or allegation that the party now in possession is conducting business for himself and on his own means, I do not see that the general order made for an injunction pursuant to the prayer of this bill restrains him from so doing. True, the bill prays that the defendants may be restrained from receiving and col-looting the debts due or to grow due to the partnership, or that may accrue out of the business transactions appertaining to the said premises since the 22d of February, 1849; but this last clause must relate to what might be considered business transactions of the partnership, before dissolution decreed. It cannot relate to the business transactions of a third person, William D. Harris, in possession of the premises and doing business there on his own means.

If the injunction issued is broader than the prayer of this bill, or the defendant Wm. D. Harris is apprehensive that the language of the prayer of the bill restrains him from proceeding to carry on the works on his own means while holding possession of the premises, the injunction will be modified. This court cannot now turn him out and put the complainant in. He keeps possession at his peril; and while in does what he pleases, also at his peril. If the lease belongs to the complainant individually, he must resort to his legal remedy to recover possession of the premises.

The matters of difficulty, as things now stand, might be presented to the court, by either party, on an application for directions to the receiver.

The only question now before the court is, whether the injunction shall be dissolved and the order appointing a receiver vacated. I see no ground on which the motion can succeed. It may be observed here, in addition, that, even if the lease be considered as made to the partnership, and if the alleged sale and transfer of all the other property of the partnership by Richard C. Harris to Wm. D. Harris can be supported, yet, as the lease was not assigned, (it is not stated in the answer that the lease was sold and assigned by Richard C. Harris to Wm. D. Harris,) it does not appear by what right the complainant could be excluded from the premises.

Motion denied.

Subsequently, a petition was presented to the court by Wm. D. Harris, stating, that after he purchased the interest and property of Wolbert & Harris as mentioned in the pleadings, he sent to the factory at McCartyville several articles of machinery, store goods, and materials for the manufacture of paper, of the value of $859, which was and is his exclusive property. That he is informed and believes that the receiver appraised the said machinery, store goods and materials so sent to McCartyville after such purchase on the 22d of February, 1849, and also about $850 worth of paper made by the petitioner at his individual expense; and the said receiver retains the possession thereof.

That the petitioner is informed and believes that the store has been opened since the injunction was_served and robbed of a portion of the property of the petitioner ; and that he has just cause to fear that his property at McCartyville will be entirely wasted, destroyed or sacrificed. That he has paid debts of the firm of Wolbert & Harris of more than $200 since the22d Feb. 1849, in pursuance of the agreement with said Richard C. Harris ; and there are no debts due to the firm of Wolbert & Harris.

He therefore prays that directions may be given to the receiver to deliver to him such machinery, goods and materials as he sent to McCartyville while the works were in his possession, after the 22d February aforesaid. That the receiver may be directed to deliver to him all the property he purchased of Richard C. Harris, the partner of Charles J. Wolbert, on the 22d Feb. 1849, upon his giving security to answer the appraised value thereof if this court shall decree that the sale to him by Richard C. Harris is not a valid sale. And that the receiver may be directed to permit him to carry on the business of making paper at the works at McCartyvile on such terms and conditions as may be fixed and ordered by the court.

An application was also made on the part of Wolbert for instructions to the receiver; Wolbert claiming that, if either partner is to be permitted to carry on the business, he is the one entitled to do so.

T. W. Mulford for Wm. D. Harris.

W. Hoisted for Wolbert.

The Chancellor

directed the receiver to deliver the store goods to Wm. D. Harris on his giving security to account for them if the result of the suit required; and that the receiver deliver to him any goods belonging to him individually. But declined giving directions to the receiver to continue the works at the mill or to permit either party to do so ; and directed the receiver to sell the lease, and close the business ; and that the accounts be stated.


author: Randolph, J. Greek, C. J.

text:
    Joshua Doughty, appellant, and The Somerville and Easton Railroad Company, respondents.
    On appeal from an order dissolving* an injunction, the Chancellor granted an order staying the proceeding to restrain which the injunction had issued until the next sitting of the Court of .Errors and Appeals. A motion was made in that Court, at its next sitting, for an order extending the stay until the hearing on the appeal.

      JMdy that the Court of Errors and Appeals had power to make such an order; but that the granting or refusing it rested in the sound discretion of the Court. It was denied in this case.
    The bill in this case, and the proceedings thereon in the Court of Chancery, will be found ante, 51.

      P. D. Vroom and Jl. Whitehead in support of the motion.

      B. Williamson and F. T. Frelinghuysen contra.
   Randolph, J.

Mr. Doughty filed his bill in the Court of Chancery, setting forth such matters which the Chancellor deemed sufficient to authorize him to enjoin the defendants from further proceeding, and which if correct, according to his allegation and understanding, would be sufficient to warrant ia perpetual injunction; but the Chancellor afterwards, on application, made an order dissolving the injunction; and from that order the complainant has appealed to this court, as he has a perfect right to do, as well by. the practice of the court as by statute. 26 Wend. 115; 4 Jno. R. 310; Rev. Stat. 921.

The Chancellor having granted a stay of proceedings until the coming in of the appeal, we are now asked to extend that order to the hearing; and the first question raised, is as to the power of the court to grant such an order; it being, .as alleged, an exercise of original jurisdiction, and we but an appellate tribunal. I had supposed that the question of power had been considered settled in this court, as well from its various exercises as from the discussion and opinions delivered in the Chegary case. The right to grant such an order must exist in the very nature of things. To deny it is to deny the right of appeal in the case; for if we have no power to protect the subject matter of the appeal, then is the right nugatory, it would be worse than useless for us to hear the merits of the appeal argued, and to decide thereon three or six months after the evil complained of has been suffered to be committed, and has become irremediable or the injury irreparable. Nor is the granting a temporary order at this time any more an exercise of original jurisdiction than the reversing, at the hearing, of the order of the Chancellor dissolving the injunction ; for that would be in fact granting a perpetual injunction. If we have that power, as of course we must have, then we must also have the power to protect the rights of the parties within the jurisdiction of the court until the cause can be heard. And as a mere question of power or right of jurisdiction, I see no distinction between this case and the ordinary case of a stay of execution or proceedings in the court below. Both are dependant on precisely the same principles; but in the exercise of the power by this court, there may be much more difficulty and delicacy in the one than in the other. Why is it that we grant, even as a matter of course, a stay of proceedings in the court below I Why, simply to preserve our own jurisdiction of the case, and to protect the rights of the parties till they can he heard, according to the rules and practice of this court. And is not the granting a rule of the kind now asked for, precisely for the same purpose, based on the same principles ? The ordinary rule, perhaps, stays an execution and salo of mortgaged premises, which might he set aside and the parties restored to their rights without the order of stay; hut cases may arise when, unless such a rule as is now asked for is granted, the property in dispute may he destroyed, before the hearing, or the parties placed in such a situation, that although we may then reverse tho dissolution and revive tho injunction, onr whole proceeding may he nugatoiy and the party without remedy in this or any other court. So that in fact the reason for tho existence of the power is stronger in a ease of this kind than in an ordinary stay. Formerly the mere appeal was a stay to all proceedings ; hut about 1801 tho rule was changed in England, 15 Vesey, 184; and the practice now is, either for the Chancellor to grant an order to stay proceedings till the hearing, or for this court, on application, to make the order. Edw. on Injunctions, 229; 15 Vesey, 182; 3 Paige, 381; and in Sea Insurance Co. v. Ward, (see 20 Wend, 590,) the Court of Appeals of New York recognized their power to modify or even dissolve an injunction before the hearing, when it becomes necessary to prevent the waste or destruction, of the property. ££ We should do here,” says Nelson, Oh. J., “what the Court below would he called upon to do in a judicious exercise of its powers.”

I am aware that most of che cases are those of mere ordinary stay of proceedings; hut that arises in the first place from such being frequent, whilst such as the present case seldom occur. And in tho next place, because the courts and the authors on the subject haye never made and never could make any distinction in principle between one set of cases and another. They lay down the principles and tho general practice, which apply to all casos, including, of course, those like the present. If injunction cases formed an exception to the general rulo, I think some case or some author would have pointed it out, or some Court have refused the order to stay upon the ground of defective power in the court; but I find no such distinction or refusal. The ordinary rule of stay, and such as the present, we have seen and heard on the same principles. I think that we may go further, and say that they are only different modifications of the same rule; a decree is appealed from, and the ordinary rule stays all proceedings in the cause, whether in the Court below, or by its officers, or the parties, or others. For the time it puts a stop to the decree and to all proceedings by virtue thereof, and leaves the parties as if the decree had not been pronounced, and the judgment or deed thereby set aside in full force. So in a case like the present, the order to dissolve is appealed from, and a stay is a mere stay of proceedings by]virtue thereof; that is, like the common order, it stays for the time the operation of the order appealed from precisely as if it had not been made, and whilst it issues no new injunction, it simply has the effect of reviving the old one, or modifying it, till the appeal can be heard; leaving it in force like the deed or judgment in the common case. And herein is the difference between the appeal from an order dissolving an injunction, and one from an order refusing an injunction. 'The former issues no new injunction till the hearing, but simply suspends till then the order complained of, leaving the case to stand as though the order had not been made; whilst in the latter case a stay is an original injunction, issued where none ever had existed before, and which could not be allowed without first hearing and deciding on the entire merits of the case ; and yet even that could be allowed at the hearing — a pretty conclusive answer to the question of jurisdiction.

Of the right to grant the rule I think there can be no doubt. As to the exercise of it in the present instance there is much more doubt. It must rest with the sound discretion of the court. Never to issue it, would destroy the right of appeal in such cases; always to grant it as of course, would be oppressive and require some modification of the power of granting injunctions, and render the dissolving an injunction and appeal equivalent to a continuation of the injunction. We must look not to the merits of the appeal so much as the circumstances of the case and the situation of the property. If the complainant is right in his positions and we to determine on the the hearing of the appeal, then there is no power in the defendant to construct the road through him, and it should not be done, because it may work a great injury to him, and be of no benefit to defendants. But if he is wrong, then an entire stay of the Company wonld bo oppressive to them and injurious to the public. I think, however, that the Company may be suffered to go on and make and file their survey, and do every other act except the entering and breaking ground, so that when tbo appeal is determined, if it be for the complainant, no irreparable injury is done to him; and if for defendants, that they may immediately proceed and make the road through complainant’s grounds; and that the order of stay should be modified accordingly.

In this opinion McCarter, Judge, concurred.

Greek, C. J.

By the ancient practice it was held that an appeal from a Court of Equity stayed all further proceedings in the court below. But by the modern English practice, the appeal does not stay proceedings, but an order for that purpose must be obtained either in the Court of Chancery or in the House of Lords. 15 Vesey, 182, Huguenin v. Basely; 16 Vesey, 216, Willan v. Willan; 17 Vesey, 380, Monkhouse v. The Corporation of Bedford; Eden on Inj. 229.

The hotter practice seems to be to make the application to the House of Lords, for even the order staying proceedings may be appealed from. 15 Vesey, 182; Lewes v. Morgan, 5 Price, 468.

By our practice, an appeal from an interlocutory decree does not stay proceedings except by an order of this court or the Court of Chancery for that purpose. If an appeal from a final decree be filed in ten days, it prevents issuing process on the decree. Rules of the Court of Chancery, rule XX.

Prior to the Revised Statutes in New York, the appeal ipso facto stayed proceedings on the point appealed from. An order for leave to proceed was necessary. Green v. Winter, 1 J. Chan. 81; 2 Hoffman’s Chan. Pr. 31; Messonier v. Kauman, 3 John. Chan. R. 66.

The injunction being dissolved, the appeal cannot revive the process or give it force. It cannot be revived but by a new exercise of judicial power. Hoyt v. Gilston, 13 John. R. 140; Wood v. Dwight, 7 J. Ch. R. 295; Hart v. Mayor of Albany, 3 Paige, 381.

It is, in effect, the granting of a new injunction. It is said, that this is an original exercise of judicial power; and unquestionably it is so. It is thereupon objected that this is a mere appellate tribunal, and caPnot exercise such power. The consequence does not follow. It may not exercise original power in acquiring jurisdiction over the cause. But that jurisdiction once regularly obtained, this court may exercise original jurisdiction over the parties, especially when the proceeding is in rem, and the object of the order to maintain unchanged, as far as' practicable, the status or condition of the subject matter of the controversy during the pendency of the suit. It is on the same principle upon which a court of common law, in an action of ejectment or dower will make an order upon the party in possession, restraining the commission of waste. And a Court of Equity, prior to the hearing or argument, will, upon the same principle, grant a temporary injunction until the case can be heard. It is an inherent power in all superior tribunals, essential to the attainment of the object of litigation and the ends of justice. I am of opinion, therefore, that this court must of necessity have the power to make the order applied for.

The power existing, is this a proper case for its exercise 1 The question presented is not whether the appellate court will stay proceedings in the court below, upon the point appealed from, pending the appeal; but it is, whether upon an appeal from a decree of the Chancellor denying or dissolving an injunction, the appellate court will grant a temporary injunction until the final hearing of the appeal. We are upon this point entirely without precedent except in our own State. No precedent cambe found either in the House of Lords or in the Court of Errors' of the State of New York, whose practice is strongly analagous to our own.

The first case fa this court, of which I have any knowledge, is that of Suydam .v, New Jersey Railroad Company, at January term, 1849. That order, it is well known, was obtained by surprise, without notice, in the absence of the opposing counsel, and under circumstances which should prevent its ever being resorted to or relied upon as a precedent. The language, moreover, in which it is couched, leaves it extremely doubtful whether the court were in fact apprised of the real design of the order. It purports to he a mero order to stay proceedings upon the decree.

In the caso of Chetwood v. Brittain, at May term, 1843, an order was granted in express terms staying proceedings at law. This is stated in the order to ho by consent.

Since the present organization of the court, at July term, 1845, a similar rule was granted in Chegary v. Scofield. This rule, too, was obtained by surprise, without argument, in the absence of opposing counsel; and at the succeeding term was set aside by a decided vote of the court. Unfortunately the precise ground of setting aside the order does not appear. It may have been, and probably was, upon the. ground that it wont beyond the prayer of the original bill, and was made to operate upon persons not parties to the record.

It is worthy of notice that both in Chetwood v. Brittain and in Chegary v. Scofield, the injunction was merely auxiliary to the main design of the suit. The object of the bill in one case was to avoid a bond; in the other, a Sheriff’s sale. The injunction in the former case restrained a suit at law upon the bond ; in the latter, the delivery of the Sheriff’s deed. In both cases the order restraining proceedings was made without the least reference to the merits of the case. The original design of tho order wag merely to restrain proceedings until the case could he heard. In neither case were the merits necessarily involved, nor could the order operate to the serious detriment of tho party enjoined.

But in the present instance the whole object of the bill is the Injunction. The sole inquiry is, should the injunction issue 1 .The Chancellor, upon a full consideration, has decided that the Injunction should not issue. This court are now asked, not to restrain proceedings in tho court below, hut to restrain the Company from proceeding under their charter. The power of this court is invoked to arrest the construction of tho road; to do, what upon maturo consideration the Chancellor has decided ought not to he done. It is to reverse, at least temporarily, the •order of the Chancellor, and to grant the complainant in limine the prayer of his bill, before the cause has been heard, before his right to an injunction has been considered or settled in this court, and that, too, after a solemn decision in the court below that no injunction should issue. In many cases, and probably •in this, a temporary injunction before final hearing will effect the design of the applicant as effectually as the granting of a perpetual injunction. It will work an irreparable injury to the party enjoined, and compel them, in order to avoid that evil, to submit to any terms which the adverse party may dictate. It is manifestly a very high and delicate exercise of power — one which should by no means be exercised as a matter of course, but only upon the most imminent necessity.

The granting of this order necessarily involves the merits o f the whole controversy. The argument upon the motion has necessarily and unavoidably turned upon the merits. The cause has been argued precisely as if we were now upon the hearing of the appeal. I think the merits ought not to be heard upon this summary motion. The practice will lead unavoidably either to a decision upon a partial hearing, or to a prejudging of the case upon its merits, in contravention of 'the rules and practice of the court.

It is a power which, in all cases where the merits are thus necessarily involved, had better be left to the discretion of the Chancellor. He may properly exercise it, and with much more safety than this court are likely to do. He is familiar with the case, and may, without the necessity of a further argument, if he thinks the case demands it, grant a temporary injunction until the cause can be heard in this court.

That, course was adopted in the case of Hart v. The Mayor of Albany, 3 Paige, 386. The bill was there filed for the purpose of restraining the corporation of Albany from removing from-the Albany Basin a floating storehouse, which the complainant had erected and moored therein, against the ordinance of the corporation. On Sling the bill, an ex parte order was made for an injunction restraining the defendants from carrying the provision of the ordinance o£ the corporation into effect. On the coming in of the answer the injunction was dissolved. From that decree Hart the complainant appealed. Pending the appeal the corporation were proceeding to carry the ordinance into effect by taking down and removing the storehouse. The appellant thereupon applied to the Chancellor for an order restraining proceedings pending the appeal. And upon the complainant’s solicitor stipulating to expedite the cause so as to bring it to a hearing at the next term of the Court of Appeals, a temporary injunction was granted by the Chancellor until after the next December session of the Court of Appeals, unless the appeal should be sooner disposed of by that court.

The exercise of this power of the Chancellor may always preserve, pendente lite, the just rights of the parties litigant. There is no necessity for its exercise by this court.

The opinion of the Chancellor in Monkhouse v. The Corporation of Bedford, 17 Vesey, 380, shows that the power even in that court will be exercised with great caution, and only when it can be done consistently with the rights of the party in whose favor the decree is made. The exercise of the power by this court in cases circumstanced like that now under consideration, will unavoidably be productive of serious evils without any corresponding benefit. It would bo far better, and more conducive to the ends of justice, to permit the appellant in all injunction bills, where the injunction is denied by the Chancellor, to bring on the final hearing of the cause immediately upon the coming in of the appeal.

The motion must be denied.

In this opinion Sinnickson, Porter, Schenck and Speer, Judges, and Carpenter, Justice, concurred.

Motion denied.


text:
    David Halliday, appellant, and Peter A. Johnson, respondent.
    A decree in a mortgage case was appealed from; and pending the appeal and within a year from the date of the decree, an agreement, under seal, was made between the parties, that a certain portion of the amount due on the decree should be paid on the execution of the agreement; that the interest on the balance should be paid half yearly, and that instalments of principal should be paid yearly; and that on failure in paying any instalment, the complainant should be at liberty to issue execution on his decree.

      Held, that on failure of payment of an instalment, an execution might issue after a year without a scire facias.

    This case, and the decision of the Chancellor thereupon, is reported ante, page 22.

      Scofield and W. Pennington for the appellant.

      Little and A. Whitehead for the respondent.
   The decree of the Chancellor was affirmed, unanimously.


text:
    John Getsinger et al., appellants, and Jonathan Lore et al., respondents.
    This case, and the decision of the Chancellor thereupon, is reported ante, page 191.

      L. Q. C. Elmer for the appellants.

      Wm. Halsted for the respondents.
   The Reporter has not been able to obtain any opinion delivered in the Court of Errors and Appeals in this case, and is therefore unable to state on what point or points that court differed from the opinion of the Chancellor.

The decree of the Chancellor was reversed, unanimously.


author: Green, C.. J.

text:
    Peter M. Ryerson, appellant, and James Boorman et al., respondents.
    The Chancellor had dissolved an injunction which had been granted at the instance of the complainant in Chancery, who was the appollant in this court, restraining the defendant in. Chancery, the respondent in this court, from further proceedings upon an execution issued out of the Court of Chancery. An appeal having been taken, the Chancellor, at the instance of the appellant, made an order restraining the respondent from proceeding upon his execution until the hearing of the appeal, or until the order of the Court of Errors and Appeals to the contrary. Upon the CQming in of the appeal, a motion -was made in behalf of the respondent to be relieved from the effects of this order, and to be permitted to proceed upon the execution. The motion was denied.
    The facts of this case are given ante, page 16 Y.

      F. T. Frelinghuysen for the motion.

      B. Williamson and A. S. Pennington contra.
   The opinion of the court was delivered hy the Chief Justice i nem. con.

Green, C.. J.

In this case, the Chancellor by his decree dissolved an injunction previously granted at the instance of the appellant, restraining the respondents from further proceedings upon an execution issued out of the Court of Chancery. An appeal having been taken from this decree, the Chancellor, at. the instance of the appellants, made an order restraining the-respondents from proceeding upon their execution until the hearing of the appeal, or until the order of this court to the contrary.. The respondents now, upon the coming in of the appeal, ask to be relieved from the effects of this order, and to be permitted to proceed upon the execution.

The only ground upon which the intervention of the court is. asked, is that there are no merits in the appellant’s,case, and that the appeal is taken merely for the purpose of delay. It is-not averred that the property levied upon is of a perishable nature, that a sale has been, or will be, effected to great advantage, and that the opportunities will be lost by delay, nor that the interests of the respondents will in any way suffer peculiar or irreparable injury. It is averred indeed, that the respondents are delayed in the collection of their debt, but that objection applies equally to every case of contested litigation, and is equally applicable to every order of this court staying proceedings pending an appeal.

It is clear that nothing has been argued upon'this motion but the merits of the appeal, and a decision in favor of the motion is necessarily a decision of the merits of the whole case. The inquiry then is, whether this court will, as a matter of practice, thus anticipate the merits of the appeal upon a special motion on the part of the respondents. If this practice is permitted, it is obvious that every ease under similar circumstances must be twice heard upon the merits. It is to be argued in the first instance without being upon the paper, without a statement of the case, and that too upon the motion of the respondent, he holding the opening and reply. It is obvious that such a practice will be fraught with serious evils to the despatch of the business of the court, and the due administration of justice.

In The Sea Insurance Co. v. Ward, 20 Wend. 588, the Court of Errors refused to dissolve or suspend an injunction of the Chancellor restraining the appellants in the exercise of their corporate rights, upon the ground that such order would anticipate a decision upon the merits.

This case is embarrassed by a more serious difficulty. The Chancellor has made an order staying proceeding by the plaintiff in execution, and this court are called upon to set aside that order. There is an obvious and clear distinction between this case and that of an application to this court to grant a temporary injunctioji where no order has been made by the Chancellor, and for these reasons:

1. The order now applied for cannot be made without investigating and deciding the whole merits of the case; whereas, if the court were called on for an original order, none having been made by the Chancellor, we might either make or refuse the •order without involving necessarily, in all cases, the merits of the appeal.

2. This order of the court below is under the control of the Chancellor. He may modify or set it aside at his pleasure, and if he sees that equity requires it, we are bound to presume that he will grant the proper relief.

8. The Chancellor, from having heard the whole case, is in a position better qualified to judge of the necessity or expediency of a continuing order than this court can be upon a preliminary motion; and when the Chancellor has made an order not merely staying proceedings till this court meet, but until a final decree or the order of this court to the contrary, we are not disposed to interfere with the exercise of his discretion, except in what appears to us to be a clear case, or upon unquestionable grounds. We surely ought not to interfere with the Chancellor’s order •when it cannot be done without deciding the merits of the case, and when there is no evidence that any special, peculiar, or irreparable injury will result to the party enjoined by a continuance of the injunction.

The motion to dissolve the temporary injunction granted by the Chancellor must be denied.