text:
    Van Horn and others v. Rev. Goyne Talmage and others.
    On a bill filed by pew-holders in a church, an injunction was granted restraining the authorities of the church, who wore about pulling it down for the purpose of using the materials in the erection of a new church on a different site, from pulling it down.
    On answer, the injunction was dissolved, on the ground that, if the complainants bad rights which would be violated, there was a remedy at law, and that the nature and extent of the injury were not such as called for the interposition of this Court by injunction.
    The bill, filed June 19, 1849, states that the complainants are pew-holders and members of the congregation of the Dutch Reformed Church of Rockaway, in the county of Hunterdon.
    The bill states the proceedings, under the act of June 12, 1799, by which the elders and deacons of, &c., were incorporated, by tbe name of u The Trustees of the Dutch Reformed Church of Rockaway, in the county of Hunterdon.”
    That on the 25th of June, 1807, an indenture was made be- . tween Abraham Van Horn, of, &c., of the one part, and Abraham Vandoren, Cornelius Wyckoff and William Van Horn, elders and deacons, &c., of the second part, by which Abraham Van Horn, in consideration of fifty cents, granted, bargained, sold, aliened and confirmed to the said A. V., and C. W. and Wm. V., elders and deacons, &c., and their successors, the lot of land in the . said indenture described, for the purpose of building a church, provided the lot be occupied for the purpose aforesaid, containing one-quarter of an acre; and all the estate, right, title, &c.; to have and to hold unto the said A. V., C. W. and W. V., elders and deacons, &c., and their successors, for the use of a church, to the only proper use, &c., of them the said, &c., and their successors forever, for the use of a church.
    That, as the complainants have been informed and believe, the said Rockaway congregation, on the execution and delivery of the said deed, proceeded to open their subscriptions, and to erect on the said lot a building for a church or place of worship, and did build thereon such a building for said purpose ; which was completed daring the year 1819 ; and that, on the 27th of April, 1819, a meeting of said congregation was held in said church, and articles to regulate the disposal and possession of the pews in said house entered into, agreed upon and adopted by them, as follows, (setting them forth.) The following are some of the articles, adopted at a meeting of the heads of families:
    Abt. 1. Resolved, That the congregation dispose of the pews in its house of public worship by public sale; that no pow be sold under its affixed valuation.

      2. That no person be allowed to purchase with Ms subscription money more than one pew; and that all moneys subscribed and paid towards erecting and completing this house of God go towards the payment of the pew purchased by the subscriber.
    8. That every person holding a pew shall pay to consistory such salary, &c., as he may feel able to subscribe; and if he shall neglect to pay for two years successively, the consistory may sell his pew and take the arrears of salary out of the proceeds, and return the surplus to the rightful owner of the pew; three months notice of sale to be given to the owner.
    4. That the pews shall be real and hereditary property, so that children and heirs may hold them as church property, by regular transfers so long as the property exists.
    5. That if the hereditary right to any pew shall become extinct, and said pew should not be transferred by its rightful owner, such pow shall revert to the consistory, who shall take charge of the same and dispose thereof as they may deem most beneficial to the interests of the congregation.
    8. That whenever repairs to the church become necessary, and no other means are at hand, the consistory shall have the power and right to assess the expenses on the pews, and the owners shall be held bound to pay the sums assessed; and, on refusal to pay, such assessment may be recovered in the same way as arrears of salary.
    9. The ownership of pews shall be determined by a certificate from the consistory and by their being registered in the church, records. The consistory, whenever payment shall have been made to them for a pew purchased, shall give a certificate, and shall cause such pew to be registered to the purchaser in a suitable record to be provided for that purpose; which certificate and registry shall invest the purchaser with the right of possession the same as if he had received a deed.
    11. Any of the foregoing articles or resolutions may, with the -consent of two-thirds of the congregation, be amended or repealed, or have others substituted or added to them.
    That the complainants purchased pews in said church, under and by virtue of said articles, as follows, (stating the pews ;) and that the same were registered in the church records, the said record commencing with the following words : “ The following persons have purchased the pews affixed to their respective names, as hereditary property in the Reformed Dutch Church of the Congregation of Rochaway ; which pews and the owners thereof are to be subject to the resolutions and articles adopted by the congregation, April 27,1819.”
    That the complainants received from the consistory of said church certificates of the ownership of their pews. The form of the certificate is as follows:
    “ This will certify that Cornelius W. Vaii Horn has purchased Pew No. 17 on the first floor of the Reformed Dutch Church at Rochaway, for $80, and, agreeably to an article in the regulations of said church, is entitled to the same as hereditary property in the same manner as if he had received a deed therefor.”
    That, by virtue of such purchase, the complainants entered upon and tooh possession of their respective pews, and have ever since possessed and occupied the same.
    That the complainants are informed and believe, that a meetr ing of the said congregation was held, a copy of the minutes whereof is as follows : “Agreeably to public notice given from the pulpit, a meeting of the congregation was held, in their house of worship, on Saturday the 28th of October, 1848. The Committee which had been appointed to procure subscriptions for the repairs of the church were called upon for their report; from which it appears that $253 had been subscribed for that object. It also appears, from statements made by members of that Committee, that the repairing of the church is a measure so unpopular, and so much opposed by the people of the congregation, that they were constrained to desist from their labors. The report of
      th.G building committee being called for, it was read and accepted, and the said committee discharged from any further action. Motion made and seconded, that the church bo left as it is. Motion lost. A motion was then made and seconded that the congregation build a new church on the hill. For the motion, 86 ; against it, 14 ; carried. It was then moved and seconded, that the following ho added to the articles regulating the disposal of the pews and church property, viz : { Resolved, That a majority of two-thirds of the congregation, have power to re-build or repair their house of worship, either upon its present or any other site.’ Motion carried without opposition. On motion, a building committee of five (naming them,) was appointed, to which was added the consistory of the church as a counseling committee. On motion, tho building committoo, with the consistory, were authorised, in their discretion, to obtain the sense of the congregation relative to the proposed object.” The said minutes remaining to this time unsigned by any of the officers or any officer of the church or said meeting.
    That the said meeting was the last meeting ever held by said congregation for the transaction of business, or any meeting whatever, except on the Sabbath for their usual worship.
    That the complainants are informed and believe that, on the 14th of tho present month of May, 1849, a certain contract was made and entered into by and between tho said building committee (naming them,) and five of the consistory of said church, (naming thorn,) of the one part, and Ebenezer B. Goltra, of the other part, (to which contract four of the consistory of the church would not consent, nor would they sign the same,) that said Goltra should proceed at once to orect a church for said congregation, on the hill, of tho dimensions in said contract specified; in consideration of which, the said parties of the first part, in addition to the sum in said contract specified to he paid by thorn to said Goltra, have conveyed to said Goltra, by said contract, the frame and wood work of tho said church of the Rockaway congregation; and have authorised and empowered the said Goltra to tear down, remove and destroy said building and convert the same to his own use; and said building committee have agreed and determined to take away and remove the stone-work or foundation of said church, and the stone wall enclosing the north side of the lot on which it stands, and tear down and remove all said stone-work immediately, and use the same in erecting the new church on the hill; and have given orders to their workmen to proceed to tear down said stone wall, stone-work and foundation of said church, and remove the same. And the said Goltra has also entered into the said arrangement to take down, remove and destroy the said church.
    The bill prays an injunction restraining the defendants from destroying, tearing down, removing, or committing any waste whatever on the building or church belonging to said congregation, or the wall enclosing the lot on which it stands.
    An injunction was granted as prayed.
    An answer was put in by the consistory and the building committee.
    They admit that, on the 14th May, 1849, a contract was made by and between “ The Trustees of the Dutch Reformed Church at Rockaway, in the county of Hunterdon,” of the one part, and Ebenezer B. Goltra, of the other part, for the purposes and to the end in the bill set forth; and admit that the said contract is signed by the Rev. Goyne Talmage, as President of the Corporation ; and by John Swackhamer and Adrian H. Pickel, as elders of the said church; and by Isaac Mesler and Thomas Jobs, as deacons of the said church ; but deny that the said contract is executed or signed by any of the said building committee; and deny that any of the members of said building committee or the said committee as a body are named in the said contract as parties thereto.
    They say that the church edifice was erected many years ago, and when the population was much less than it now is at that place and neighborhood, and when the demand and necessity for church accommodation was not so great as now. That the said edifice has but 44 pews on the floor which can be at the disposal of the congregation, and but 48 in all on the floor of the church. That there are but 26 pews in the gallery, which are not desiraHe for families, and are only occupied by transient persons and a few of the young people of the congregation.
    That it appears by the minutes of the particular synod of the Reformed Dutch Church, an ecclesiastical body to which the Dutch Reformed Church at Rockaway is amenable, and to which it makes report, that in May, 1849, there were in the cmxgregation of said church at Rockaway 102 families ; and these defendants aver that said report is correct 3 and that said edifice is entirely too small for the purposes of said church, and in other respects not such as tho interests of tho congregation and the welfare of the people demand 3 and that the congregation is not sufficiently large or opulent to authorize a division of the congregagation and the maintenance of two distinct establishments or organizations.
    They say thatc£ The Trustees &c.” is the corporate name of the religious society worshipping in said old edifice ; that said corporate body are connected with and amenable to the ££ Reformed Dutch Church of North America.” That the said ££ The Trustees &c. of Rockaway” have complied with all the provisions and requirements of the act entitled ££An act to incorporate trustees of religious societies,” passed June 12, 1799, and are fully invested with all the corporate rights conferred by said act and all supplements thereto, and all incidental rights growing thereout; and that the defendants Goyne Talmage, John Swackhamer, A. H. Pickel, Isaac Meslcr, Thomas Jobs, John Ryer, P. E. Voorhoes, P. C. Wyekhoff and John Klino compose tho consistory of said church at Rockaway 3 which consists, according to the constitution of the Reformed Dutch Church of North America, of tho minister, elders and deacons 3 and that they, as minister, elders and deacons of said church, are, according to tho 12th section of the act last aforesaid, the trustees or corporators of the said corporation known in law as ££ The trustees of the Dutch Reformed Church of Rockaway, in the county of Hunter-don ;” and that all the acts, deeds and undertakings laid to their charge in the bill have been done and undertaken, not in their individual capacity, but by their acting as trustees or corporators of the said corporation.
    They say that tho ecclesiastical assemblies of the Reformed Dutch Church of North America, to which the said church at Rockaway belongs, are, a consistory, which, by sec. 1 of Art. 2 of said Constitution, consists of the minister, elders and deacons of the church ; and which consistory has, as appears, as well by said Constitution as by sec. 12 of the Act of the Legislature passed June 12, 1799, the entire and exclusive management of the temporalities of the church; and that a majority of the consistory is a quorum and competent body for the transaction of all business; and the 4th sec. of the 2d Art. of the Constitution so declares. That among the items of business enumerated and specified in said Constitution as belonging to the consistory are the. calling of ministers, the building of churches, and whatever relates to the temporalities of the church.
    That the other ecclesiastical assemblies of said denomination next in importance are the “ Classis,” the Particular Synod and the General Synod. The answer states the powers of each.
    And the defendants aver, that neither the Classis, Particular Synod, General Synod or congregation have any control over the the temporal affairs of the several churches ; but that those are committed to the exclusive control and management of the consistory, both by the constitution of said church and the said Act of the Legislature of June 12, 1799.
    That it is not unusual for the consistories to consult and confer with the congregation, by which they are elected every two years, and with the Classis to which they belong; and that they are, not unfrequently, regulated in their action by their opinions; but deny that the action of the congregation, or any other bocly, is anything more than advisory.
    They say that the consistory of said church at Rockaway, at a meeting duly held in the church, on the 9th November, 1848, unanimously passed the following resolutions :

      u 1st. Resolved, by the consistory, that a lot of land be purchased suitable for a church lot, at, &c.
    a2d. Resolved, that this house of worship be re-built and placed upon the said lot of land.

      “ 3d. That the persons chosen by the congregation to be a building committee (naming them,) are approved of and appointed by this consistory as such.

      “ 4th. That the building committee be authorised to procure materials and contract for the building and completing of said house.
    “ 5th. That C. T. Sharp and G-. Hall be a committee to appraise and estimate the value of this church.”
    That the aforesaid consistory, at a meeting duly held by them since the filing of the bill in this cause, passed the following preamble and resolutions, (sotting them forth.) The preamble recites the filing of the bill in this cause. That the consistory believe they have acted in the premises according to the wishes of a large majority of the congregation, as will appear by the minutos and proceedings of the congregation held in the church on the 28th of October last; and that it is evident by an instrument in writing dated Oct. 28, 1848, that a large majority, viz. a majority of more than two-thirds of the original and legal pew holders in the present church or house of worship are in favor of re-building and moving the said house from the site whore it now stands, and placing it upon a lot, &c. And that consistory believes they have acted in conformity with the laws of this State and of the articles and constitution for the government of this church, and have been sustained and approved of by the Classis of New Brunswick, through a committee by them appointed, in all the proceedings had by this consistory in this matter, Therefore resolved, that Rev. G. T. and J. S. be a committee to protect and defend the rights and interests of this congregation against said complainant.
    The defendants say, that the contract with Goltra for the erection of a new church and the abandonment of the old, as referred to in the bill, was duly executed by a majority of the consistory ; and that John Ryer, one of the members of the consistory, has, since the expiration of said contract, signed a certificate, hereinafter set forth, signifying his approval of said contract.
    That the new church, so as aforesaid ordered to be built, lias been partially erected, the foundation being partly up ; and that they are impeded and embarrassed in further carrying on the work by being prevented from using the materials of the old church in the erection of the new.

      They say that four years ago it became apparent to the congregation that extensive repairs to and enlargement of the old church must be made or that a new church would be necessary. That, as early as January, 1844, a committee of the consistory was appointed to ascertain the expediency and expense of altering the church. That the subject was then talked of, and continued to be for two years or more ; but no decided action was taken. On the 1th January, 1841, the subject of the alteration and repair of the church was again brought forward ; when, in consideration of the importance of the subject and the absence of some of the members of the consistory, it was determined to call a' meeting of the consistory, and of a committee of the congregation which had been pi-eviously appointed, to confer and advise with the consistory in relation to the finances of the church. This committee was no more than a merely voluntary committee, without power, and not recognized in any manner by the constitution or regulations of the denomination with which said church was connected; and it has now ceased to exist. This meeting of the consistory and said committee was called for January 16,1841.
    On that day a meeting was accordingly held, and it was determined to re-model the church, when the subject was again dropped and suffered to die away.
    On the 2d September, 1848, a meeting of the congregation was called by the consistory, to consult on the propriety of surrendering to the Board of Domestic Missions of the Reformed Dutch Church the sum theretofore annually received by the said church at Rockaway. At this meeting of the congregation it was resolved, that a meeting of the congregation be called, two weeks from that day, to consider the re-modeling of the church.
    On the 16th September, 1848, the meeting was accordingly held, in the church, and a resolution was passed to build a neAV church, on the hill, in the same place where Goltra has now contracted to build said church. At this meeting a committee was appointed to raise money for the purpose of building the same. This committee did not raise means enough to render it safe for the consistory to proceed, and they did not act.
    On the 9th October, 1848, another meeting of the congregaion was held, when it was resolved that the church edifice was insufficient and incommodious, and that, as a congregation, they should proceed at once, either to make alterations in the old church or to build a new one. This resolution was passed almost unanimously; and a majority then present being in favor of an alteration of the old church, a committee was appointed to solicit subscriptions for that purpose ; but so unpopular had the measure become with tho congregation that the committee were unable to procure funds; and on the 28th October, 1848, tho proceedings were had by the congregation as are set out in the bill.
    They say that more than two-thirds of the heads of families have signed a certificate signifying their approval of the abandonment of the old church and the erection of a new one on the site selected; which certificate is as follows : “ Wo, the undersigned, do hereby certify that we are members of tho congregation that worship in the old church at Rockaway, and are in favor of the abandonment and disposal of said old church and tho erection of a new church, at the site selected, and where the corner-stone has recently been laid.” And that said certificate is signed by many others who are members of the congregation and are not heads of families, but who pay their portion of the salary. That this certificate is signed by all the persons who wore members of the consistory on the 9th November, 1848, when the resolution to build was passed, except Peter C. Wyckoff, and by five of the present consistory, exclusive of the minister.
    The defendants say there is also a subscription list for the purpose of raising money to erect the church, signed by 98 names, almost all of whom are members of the congregation, and have subscribed, in the aggregate, $1,570.
    That more than two-thirds of the legal pew-holders under and according to the articles in the bill set forth, adopted for the regulation of pews, have relinquished their interest in the pews of said church, by tho following release: a To the minister and consistory, &c., and to all whom it may concern: Whereas an effort is about being made to re-build and to move tho said house of worship from tho site where it now stands, and to place it upon, &c., therefore, to aid in the accomplishment of this object, we do relinquish and surrender up all the right and title to any pew which we or any of us hold in the said church. Witness &c., this 23d of October, 1848.”

      The defendants say that, excepting Goltra, they have done nothing in their individual capacity; hut have acted only by authority of the church. That the Classis have a superintending and advisory power over the affairs of the church, which power was exercised with reference to the matter of building the new church at Rockaway, as appears by the following report, made by a committee appointed by the Classis of New Brunswick, as follows, (setting it forth.)
    . .The report states that said committee unanimously agree — 1st. That there is a great want of room in the present house. 2d. That it would be unwise to try to repair or re-model the existing house; because it would only postpone the question of a new church, which must come up again within five years at farthest. 3d. That therefore a new house is desirable. 4th. The only remaining point is the location of the new edifice. If this question was now entirely new, the committee might hesitate in expressing an opinion; but since, at a meeting of the congregation, held after due notice, there was a vote of more than two-thirds (36 to 14) in favor of the site on the hill; since this has been actually bought by the consistory, and nearly $1,800 has been subscribed towards erecting a building there; and since it would make the church nearly equi-distant between the two villages of Mechanicsville and White House, we cannot but think it entitled to the preference. . They accordingly advise the church and congregation to act in accordance with these views. That the church can prosper, things remaining as they are, is manifestly out of the question. They therefore urge the consistory to go steadily forward, and press the new enterprise to completion at the earliest possible period. This report was dated April 26, 1849, and signed by the committee of the Classis.
    And “ The Trustees, &c.,” who in the bill are styled a The consistory of &c.,5’ further show, that the proceedings set out in this answer as their acts were done in a lawful manner, and were such as they insist they had a right to do; and that they have been and are still greatly annoyed and wronged by the proceedings of the complainants, who, in instituting said suit, are endeavoring to obstruct them in the lawful discharge of their duty, and are opposing the will of the ecclesiastical assemblies of the Reformed Dutch Church and the will of a large majority of the congregation.
    On this answer, a motion was made to dissolve the injunction.

      F. T. Frelinghuysen and W. Halsted in support of the motion.
    They cited 18 Vern. Rep. 273; 9 Cranch, 43; 17 Mass. Rep. 485 ; 1 Pick. Rep. 102 ; 1 Tenn. Rep. 430; 2 Saund. Rep. 175, note ; 7 Eng. C. L. Rep. 129; 5 Barn. & Ald. 386 ; 12 Coke’s Rep. 105; 2 Bl. Com. 429; 1 Phil. Ec. Law, 316 ; 3 Paige, 213.

      J. A. Hartwell and P. D. Vroom, contra.
   The Chancellor.

I think the injunction should not he continued. If the complainants have rights which will he violated by any proposed action of the defendants, or either of them, they are rights for the violation of which a remedy at law may be had. The nature or extent of the injury sought to be prevented by injunction are not such as should induce this Court to interpose by injunction.

Without expressing any opinion, therefore, as to the strict legal rights of the parties, I think the case, as developed by the bill and answer, is such as should, in the discretion which the Court of Chancery exercises in reference to injunctions, determine the Court to leave the parties to their legal remedies, if they have any.

Injunction dissolved.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Thomas V. Johnson and John Y. Baldwin v. Seth Woodruff, Jane his Wife, John W. Stout, and Archibald Woodruff.

      A., by his will, gave a certain house and lot in Newark, to trustees, for the use of B. for his life, and then for the use of B.’s wife, if she survive him, and directed the (trustees to convey the same after the death of B. and his wife, to their children; and also gave to B. a money legacy of $2000. With a part of this $2000 B. built another house on the said lot of land, and was in the receipt of the rents thereof. C. obtained a judgment at law, and issued execution, but failed to obtain payment for want of property subject to execution at law. On bill filed by O., the Court appointed a receiver to receive the rents of the house so erected by B., to be applied to the payment of C.’s judgment, until the same should be satisfied, and enjoined the trustees from receiving said rents.
    Thomas V .Johnson and John Y. Baldwin exhibited their Mil, stating that on the 30th of July, 1842, one Obadiah Wood-ruff died, seized of the lot of land and premises in the bill mentioned, leaving a will and codicil thereto, by which, among other things, he devised as follows :

      a I, Obadiah Woodruff, of, &c., do make and publish this codicil, &c., Whereas, under the fourth head of my said will, I devised and bequeathed, or intended to devise and bequeath, all the rest and residue of my estate, real and personal, therein mentioned, in seven equal shares, to my children therein named, their heirs, and assigns; I do hereby modify that devise and bequest, by making out of said estate additional provisions for my son (Seth Woodruff, intending that the residuary estate shall be divided among my said seven children, share and share alike, and to their respective heirs and assigns for ever. I do therefore give and devise unto John W. Stout and Archibald Woodruff, named in my said will, and to their heirs and assigns for ever, to the survivor of them and the heirs of such survivor, all that certain corner lot of land and premises, 40 feet front on Washington street, and 110 feet on Warren street, the north and western boundaries to run parallel with said streets, being part of tbe homestead in the city of Newark 5 To have and to hold to the ases and trusts following, that is to say, in trust for the occupation ami enjoyment of the same by my said son, Seth, during his life; and in case his wife, Jane, shall survive him, then in trust to permit her to occupy and enjoy the same during the remainder of her life; and after the decease of my said son and his wife, then in trust that the said trustees or the survivor of them, and the heirs of such survivor, convoy all the right, title and interest in the said land and premises, by a good and sufficient deed of conveyance, unto the children of my said -son, share and share alike, and to their respective heirs for ever; the legal representatives of any deceased child to take and be entitled to the same share as his or her parent would have been if then living. In case my son, or his said wife, shall not choose to occupy the said lot of land and premises, then the said trustees or the survivor of them, or the heirs of such survivor, shall permit them, during their respective periods aforesaid, to receive the rents and profits thereof; but they are, respectively, while the said trust remains, to make all necessary repairs and pay all taxes and other necessary charges and expenses in and about said premises. And I do hereby ratify and confirm all the provisions of my said will as therein expressed, except as to the lot of land and premises hereinbefore mentioned. Dated, July 19, 1842.”
    . That tlio executors therein named proved the said will and codicil, and took upon themselves, &c., and accepted the trust imposed by said codicil.
    Thai; the said Seth H. Woodruff afterwards entered into and took possession of the said lot and premises, and the house thereon, and is now in possession thereof, the said house being a large and commodious dwelling house fronting on Washington st.
    That said Seth H., after taking possession as aforesaid, entered into business as a stove dealer, in Newark, and in said business contracted debts which he became, or alleged himself unable to pay; and while so engaged in business, the said Seth, appropriating for that purpose, as the complainants believe, the means which should have been applied by him. to pay his debts, and which belonged to his creditors, did, on the rear of the lot above described, and fronting on Warren street aforesaid, erect
    a building two stories high, and constructed so as to be used for a store and dwelling house, which said store and dwelling house was erected at a considerable expense, but the amount thereof the complainants do not know.
    That from the location and desirableness of said store and dwelling house, the same has rented and does now rent for a considerable sum, annually, which has been, and, as the complainants are informed and believe, still is received and appropriated by the said Seth H. to himself, and for his own purposes, and the said premises are not occupied or used by said Seth H. or his family for their residence.
    That while the said Seth H. was engaged in business as aforesaid, he became indebted to the complainants, and failing to pay, the complainants commenced a suit against him, in the Circuit Court of Essex, and in June term, 1846, recovered a judgment against him for 186.40, and issued execution de bonis et terris thereon to the sheriff of Essex.
    That said Seth H. having, by a judgment confessed by him prior to the complainants obtaining their said judgment, allowed all his personal property to be sold under execution, the same having been purchased by the plaintiff in said suit, and left with said Seth H., he had no personal property whereof to make the amount of said judgment of these complainants, and therefore the said sheriff did, by virtue of said execution of the complainants, take and seize all the right, title and interest of the said Seth H. of, in and to the real estate of which the said Obadiah Woodruff died seized, situate on the corner of Washington and Warren streets, in Newark, being 40 feet front on Washington, and 110 feet on Warren street. And the said sheriff advertised the said lot of land and premises.to be sold by virtue of said execution of the complainants, at^public vendue, at Stewart’s Hotel, in Newark, on the 8lst of March, 1847, at 2 P. M.; at which time and place the said sheriff did, accordingly, expose said lot of land and premises for sale, at public vendue, by virtue of said execution; and thereupon the complainants, for the sum of $10, became the purchasers thereof, as by the sheriff’s deed, &c., which deed was duly recorded on the 16th of December, 1847.

      That the residue of said judgdment, with the interest, remains wholly unsatisfied.
    That the said Seth H. has, at all times, possessed and enjoyed, and still does possess and enjoy the said dwelling house and premises on Washington street, and has also received, and still does receive the rents, issues and profits of the said store and dwelling house so as aforesaid erected on Warren street; and that he has refused, and still does refuse to deliver up to the complainants the possession of said premises or any part thereof, or to allow thorn to receive the rents issues and profits or any part thereof.
    The bill prays the appointment of a receiver of the rents, issues and profits' of the said store and dwelling erected by said Seth II.; and that the said Seth H. Woodruff, John W. Stout, and Archibald Woodruff may be enjoined from receiving the rents, issues and profits of said buildings; and that the complainants may have satisfaction of their said judgment, and such other and further relief, &c.
    To this bill, John W. Stout, Archibald Woodruff, and Jane H. Woodruff demurred; for that the bill contains no matter of equity whereon the Court can ground any decree or give the complainants any relief or assistance as against these defendants; and assigning the following causes of demurrer.
    1st. Because the complainants, by their said judgment and execution, and purchase at sheriff’s sale, acquired no right or title whatever in the lands and premises whereof a recovery or sequestration of the rents and profits is sought by their bill.
    2d. Because the said lands and premises belong to these defendants, J. W. Stout and Archibald Woodruff, as trustees under said will, and the title was in them at the time of the complainant’s*! judgment and sale under it; and the complainants have no right to interferfero with that trust, or to deprive them of their rights or property as such trustees.
    3d. Because there can be no sale under an execution at law of rents and profits issuing from real estate; and the complainants, therefore, acquired no rights whatever to them by their said purchase.

      4th. Because the rents and profits aforesaid belong to these defendants, Stout and A. Woodruff, and are embraced within the trust stated in the bill, and must be applied in the manner pointed out in the said will, and the complainants have no right to have them applied to the payment of their debt.
    ¡e 5th. Because the hill seeks to destroy a trust created in a lawful manner, and to render inoperative the objects and purposes thereof.
    6th. Because the bill seeks to substitute receivers in the place of the defendants Stout and A. Woodruff, as trustees, without assigning any ground for their removal from office, and to divert the rents and profits from the person to whom they are directed to be paid.
    Tth. Because Jane H.. Woodruff is not a necessary or proper party to this suit.
    8th. Because there is no matter of Equity in. the hill on which a decree can be made against these defendants, or the complainants obtain relief.
    Seth H. Woodruff put in an answer, in which he says, that by the will of his father, he was given a share with his sisters in the personal estate, which share exceeded $2000; and being at that time out of debt, and thinking it most for his interest and that of his family, he took a portion of the legacy so bequeathed to him by his father, and erected the building mentioned in the bill; but he denies that the same was done when he was in embarrassed circumstances, or with any design or intention of defrauding his creditors, or that the same was built with the money of his creditors or any of them.
    He says, that after he had erected the said building and at a time subsequent thereto by a year or more, his affairs became unfortunate, and he was unable, from adverse circumstances, to pay all his debts. He says that the expense of erecting said building did not vary much from $800; that the building is now rented, by and in the name of the said trustees for the sum of $120, which is received by this defendant by the permission and eonsent of the trustees.
    He admits he receives the rents and profits of said building erected by him, and declines yielding up the possession or the rents and profits thereof to the complainants.
    The ease was heard on the demurrer and on the bill and answer.

      L. C. Grover, for the complainants.

      W. Pennington for the defendants.
   The Chancellor.

The demurrer cannot be sustained. • The only question in the case arises on the answer of Seth XL Woodruff.

The will gives a certain house and lot in Newark to trustees for the use of said Seth for his life, and then for the use of Ms wife, if she survives burn ; and directs the trustees to convey the same, after the death of said Seth and his wife, to their children. The will also gave to Seth H. Woodruff a money legacy of $2000, absolutely.

With'a part of this $2000 Seth H. Woodruff built another house on the said lot of land, and receives the rent therefor. The question is: can he enjoy these rents, the use and returns for his own money invested in building another house on said lot, and hold his creditors at arm’s length; or is there not a mode by which those rents can be subjected to the payment of his debts.

Our system of jurisprudence would be very imperfect if it afforded no relief to a creditor'in such a case.

The question is not, whether by the judgment and execution the creditor obtained any lion upon the building, or whether by the sheriff’s deed he acquired any interest in the building. All that part of the case might bo struck out of the bill. The complainants obtained a judgment at law, and issued execution, and have exhausted their remedy at law. The very reason why they come here is that the law affords them no remedy by judgment and execution. They come here to reach a fund of the defendant Seth H. Woodruff, which he has shut up in such a way that it cannot be reached at law.

X do not doubt that this Court could afford relief in a case like this independently of the provisions of onr late act entitled u A Supplement to the Act respecting the Court of Chancery.” And the case is clearly within the spirit and policy, and it may he said, too, within the very provisions of that supplement.

A receiver will he appointed to receive the rents of the house erected hy Seíh H. Woodruff, to he applied to the payment of the judgment of the complainants, until the same he satisfied, and, in the mean time, the trustees under the will of Ohadiah Woodruff will he enjoined from receiving the rents.

A distinction may he made, if there he any utility in it, between what would he the value of the use of the ground occupiedhy the new house and the yard or enclosure used with it, and th'e use of said enclosure with the house erected on it, and the former may he deducted from the latter, and the difference he directed to he paid to the receiver, This will only require the services of a receiver for a little longer time.

In this view a referee will he necessary to ascertain such difference.

Order accordingly.


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    Alered Woodward v. Cornelius Woodward and others.
    A., being nbcut to bo married, after tie death of ms wile, procured a dead of bargain attd sale, for a money consideration of 8400, to be drawn, conveying his homestead f'srin to a grandson, and signed his name to the deed before witnesses, concealing from them the nature of the instrument- On A.’s death, after the lapse of fifteen ye it's, the grandson having lived with him from before his second marriage until his death, the deed was found, by the administrators of Ms estate, in the desk in ; which he had kept Ms papers. The grandson filed a bill, praying possession of the farm and title deeds. There was no evidence of any actual delivery of the deed, or of tlie payment of any part of the consideration money mentioned therein,
    The Court said it was a question of delivery, proper to bo tried at law; and dismissed the bill.
    The Mil, filed Sept. 27,1847, states tlxat Anthony Woodward, deceased, was, in his lifetime, seized and in possession of a certain, farm in upper Freehold, Monmouth county. That he had intermarried with Keziah Cowperthwaite, in or about the year 1785, bp whom he had one child, James Woodward, the father of the complainant and one of the defendants. That the said James Woodward was born in or about 1786, and subsequently inter ■ married with Lydia Bullock, by whom he had two children, to wit, the complainant, and a daughter, since deceased. That in or about 1811, when the complainant was about four years old, he was taken by his said grandfather to be brought up as his own child; that he, at that early day, left his father’s house, and removed to the house of his grandfather, on the farm hereinafter referred to, and continued to live with his said grandfather up to the time of his death, on the 9th of May, 1840. That during all this time, the complainant was treated as a son by his grand father ; and was supported and educated by him exclusively.
    That in February, 1822, Keziah, the wife of said Anthony Woodward, and the grandmother of the complainant, died. That subsequently, on or about August 28, 1825, the said Anthony Woodward, then being of the age of about sixty-four years, intermarried, as the complainant is informed and believes, with one Caroline Wilbur, one of the defendants in this suit. That said Caroline had been, and was a hired domestic in the family of the said Anthony Woodward, and, while there, became pregnant, as was said, by the said Anthony. That tinder these circumstances, urged by the earnest solicitations of the said Caroline, to save her from disgrace, he consented, after much hesitation, to marry her, and, on or about August 23, 1825, the day preceding the birth of the child of the said Caroline, they were privately married.
    That, on the 19th of August, 1825, about four days prior to said marriage, the said Anthony Woodward made and executed a deed of bargain and sale to the complainant, for all that farm on which he then lived, situate in Upper Freehold, Monmouth county, bounded as follows: (giving the boundaries) containing 166 acres, be the same more or less, excepting a small piece.that was quit-claimed to Michael Mount, next to said Mount, to make the line straight: To have and to hold to the complainant, his heirs and assigns for ever; which said deed contained full covenants of seizure and warranty against all incumbrances. That the said deed, with the attesting clause and the words, ^ signed, sealed and delivered in the presence of” are all in the handwriting of the said Anthony Woodward. That, after the same had been so prepared by him, it was by him executed and acknowledged to be his act and deed in the presence of Joseph S. Smith and Isaac N. Woodward, the subscribing witnesses. That the execution of said deed was at a store some short distance from the residence of the said Anthony; to which store the said Anthony had gone to procure witnesses who were young men, and would, as he said, be likely to live, in whose presence the same could be executed. That at the time of the execution of said deed the complainant was not present; but that immediately thereafter, to wit, on the next day or the day following, he the said Anthony took the complainant into a furnace house near his dwelling, and then and there explained to him his intention to marry the said Caroline; but assured him that his said marriage should not impoverish his estate ; and, to secure the complainant in the ultimate possession and ownership of said farm, which he had always promised and intended he should have, he then and there read and delivered to the complainant, by handing the same over to him, the said deed for said farm. That the complainant always supposed that the settlement so made upon Mm was full and complete, and not revocable by the said Anthony; but, inasmuch as the complainant was a minor, a part of the time away from home at boarding school, and when at home had no place to keep valuable papers, and had entire confidence in his said grandfather, to whom ho 'was attached as to a parent, he handed the said deed back to him for safe keeping ; and he the said Anthony did then and there assure the complainant that he would take charge of and keep the said deed safely for the complainant as aforesaid. That the said Anthony did take the said deed for safe keeping; and the same continued in his custody up to and at the time of his death, on the 9th of May, 1840. That soon after his death, to wit, on or about August 80, 1840, and while the appraisers and administrators of his personal estate wore present, the said deed was discovered in a private place in his desk ; and immediately thereupon, and before it had been opened, it was recognized and pronounced by the complainant to be his deed for the property in question. That he immediately requested that Caroline, the Avidow of said Anthony, should be called in and the deed read, which Avas done accordingly; and the complainant thereupon resumed the possession thereof, and had the same placed on the records of the said county.
    That, although said deed was delivered to the complainant without condition or limitation, the complainant permitted the said xinthony to continue in the occupancy and enjoyment of said farm, as he had heon prior thereto; he the said Anthony continuing to support and maintain the complainant as aforesaid. That at the death of the said Anthony, his widow, the said Caroline, with her children born since the marriage, to wit, Keziah, Elizabeth, Hannah Ann, William and Anthony, continued to reside upon said property; and upon demand being made, since the death of the said A athony, have refused to yield up the possession thereof, or in any shape to recognize the rights of the complainant, insisting that the property belongs to the heirs of the said Anthony. That those children are all minors, as ihe complainant is informed and believes, except Kcziah, who came of ago on the 15th instant.
    That the said Anthony WoodAvard died intestate, and Avithoul; having ever attempted to make or cancel the settlement made upon the complainant as aforesaid. That he, after the execution thereof, and up to within a few years of his death, repeatedly acknowledged the existence and validity of said deed of settlement. That the existence thereof was known in the family of the said Anthony, and to other branches of the family: and, more particularly, was it known and acted upon by Joseph and Lydia Bullock, the maternal grandfather and grandmother of the complainant, who, upon distributing their estates by will, cut off the complainant from his share thereof, upon the express ground that the complainant was sufficiently provided for by the settlement made upon him by his grandfather as before mentioned.
    That after the marriage of the said Anthony with the said Caroline the said Anthony expended large sums of money in the support and maintenance of the poor relatives of the said Caroline ; that her entire family were in destitute circumstances, and became, either in whole or in part, a charge upon the said Anthony from that time up to the day of his death. That the said „ Anthony, at the time of his death, was seized and possessed of considerable estate, real and personal, besides the farm before mentioned, which said estate descended to the children of the said Anthony, subject to the widow’s right of dower therein. That the said Caroline, widow as aforesaid, retains possession of the original title papers of the said Anthony to the said farm ; that they have never been placed on the public records of the county of Monmouth, or elsewhere, to the knowledge of the complainant ; and the same are essential, as the complainant is advised, to making out a proper documentary title to said premises.
    The bill prays that the defendants may.be decreed to deliver up to the complainant the possession of the said farm, free from all incumbrances placed upon it by them or either of them, and all the title deeds and muniments belonging or relating to said farm in the possession of them or either of them; and may be decreed to account with the complainant, and to pay him a fair and reasonable sum as rent for the use and occupation of said farm since the death of the said Anthony Woodward, with such other allowance as may be reasonable and just, and for such further and other relief, &c.

      Subpcna is prayed against Caroline Woodward, Keziah, Elizabeth, Hannah. Ann, William and Anthony Woodward, and James Woodward.
    Caroline Woodward, the widow, Keziah, her daughter, who is o? age, and Elizabeth Woodward, Hannah Ann Woodward, William and Anthony Woodward, infant children of said Caroline, by said Caroline, their guardian, put in their joint and several answer.
    They admit that Anthony Woodward, deceased, died seized and possessed of the farm described in the bill. That said Anthony, deceased, by Ms first wife, Keziah, had one child, James Woodward, the father of the complainant, and a defendant in. the bill. That said James Woodward married one Lydia Bullock, who is still living, by whom he had two children, the complainant and a daughter, since deceased.
    The defendants aver, that the said James Woodward and his said wife, shortly parted and broke up housekeeping; and then, when complainant was about four years old, he was taken by his grandfather as one of Ms family; but that for several years ho was living in Pennsylvania, and out West.
    The defendant Caroline says, that the time of her marriage with said Anthony Woodward, deceased, is correctly stated in the bill; and she admits that previous to the day of the marriage she for a Ions; time lived as one of the family of her said late husband, having commenced to do so at his urgent solicitation, and kept house for him until he made proposals of marriage to her, which resulted in a maria ge and she became his wife; but she denies that her said late husband was urged to the said marriage by her urgent solicitations; and declares that the same was in pursuance of a contract of marriage fairly, honorably, freely and mutually entered into by and between the said Anthony and her, something over a year before the said marriage was solemnized.
    She denies that the said marriage was private, or kept private or secret, or intended to be in any way a privacy, either by her or the said Anthony.
    She denies that while a member of the family of the said Anthony she was ever a hired domestic in such a sense as would imply any impropriety in the making and consummating a contract of marriage between them; and she denies the imputation, if any such is intended by the wording of said bill, of having improperly induced the said marriage.
    The defendants deny that the deed stated in the hill as made and executed by said Anthony Woodward to the complainant, on the 19th of August, 1825, was ever made and executed and delivered by said Anthony Woodward to the complainant. They admit it was prepared by said Anthony Woodward, and by him executed so far as to sign it, and that he acknowledged it to the witnesses to he his act and deed; hut they deny that he delivered said deed; and on the contrary declare that the said Anthony Woodward did not then or at any time afterwards deliver .said deed to the complainant.
    They admit that when the witnesses signed said deed and the said Anthony Woodward executed it so far as to put his name to it, and which the defendants say was the only execution of it that ever took place, the defendant was not present; but they deny that immediately thereafter, to wit, on the next or the day following, or at any other time, the said Anthony Woodward took the complainant into a furnace house near his dwelling, or to any other place, and then, or'at any other time, and there, or elsewhere, explained to tho complainant his the said Anthony Woodward’s intention to marry the said Caroline. And they deny that at the time or place stated in the bill, or at any other time and place, the said Anthony Woodward assured the complainant that his said marriage should not impoverish his estate. They deny that at that or any other time or place the said Anthony Woodward, to secure the complainant in the ultimate possession and ownership of said farm, or for any other purpose or object whatever, read and delivered, or either read or delivered, to the complainant, by handing the same over to him, or in any other way, the said deed for said farm, and they deny that said deed was then and there, or at any other time or place, either read or delivered by said Anthony Woodward to the complainant, or handed over to the complainant by the said Anthony Woodward. They deny that said Anthony Woodward liad always promised and intended that the complainant should have said farm; and deny that any settlement was ever made upon the complainant by said Anthony Woodward. They deny that the complainant handed tho said deed back to said Anthony Woodward for safe keeping, at tho time and place mentioned in the bill or at any other time or place; and deny that the complainant ever handed said deed to said Anthony at all, and deny that he over had said deed in the lifetime of said Anthony Woodward, or that it was over in Ms possession during tho lifetime of said Anthony Woodward, or in the possession of any other person for the complainant or Ms use; and deny that the said Anthony Woodward did at tho time and place in the bill mentioned, or any other time or place, assure the complainant that he would take care of and keep said deed safely for the complainant; they deny that said Anthony Woodward ever had said deed in his charge and keeping for the complainant, or ever undertook to keep it for the complainant, or that it ever belonged to the complainant, or was ever held by said Anthony Woodward in any way for the complainant. They deny that said Anthony Woodward did take said deed for safe keeping for the complainant, or that he took it from tho complainant at all, or that he ever had it in safe keeping for the complainant.
    They admit that said deed was in the custody of said Anthony Woodward, and that it continued in Ms custody up to and at the timo of his death, on the 9th of May, 1840 ; but they deny that such custody was for or on behalf of the complainant, or that said deed belonged to the complainant, or that the complainant had placed it in Ms custody. They aver that, from the time said deed was signed by the subscribing witnesses, it remained in the custody of said Anthony Woodward as Ms own, and not as belonging to the complainant or any other person; and they deny that said Anthony Woodward in his lifetime ever delivered said deed to tho complainant in the furnace or elsewhere; and deny the truth of any such interview between said Anthony Woodward and the complainant as is stated in tho bill; and they deny tho truth of the circumstances set forth in the bill describing the reading and handing oyer said deed, or the delivery of said deed by said Anthony Woodward to the complainant and the handing the same back by the complainant to said Anthony Woodward for safe keeping; and they deny that said deed has ever been in any way delivered to the complainant, or that there has ever been in fact or in law a. delivery of said deed.
    The defendants admit that Anthony Woodward died May 9th, 1840, and that his administrators, about the 29th of May, 1840, with appraisers, took, or were engaged in taking an inventory or appraisement of the personal estate. That, while thus engaged, and, the defendants aver, while the administrators and appraisers were examining the contents of the desk of the deceased, the said deed was found, with some other papers of no importance, in one of several secret and concealed pigeon holes or small boxes in the back part of said desk, and back of a portion of the inside of the writing desk, which portion it was discovered could be drawn out, and in one of which said boxes, as said portion was drawn out, said deed was found; and thereupon the said deed was picked up by the complainant, who looked at it long enough to read some of it, and pronounced it to be a deed to him, and handed it to one standing by to read; and said Caroline Woodward was requested to come into the room where they were, at the mansion house of said deceased on the premises aforesaid, and the paper thus found was read over in her presence, and purported to be a deed from said Anthony Woodward, deceased, to the complainant, for said premises, and purported to bear date previous to the marriage of said Anthony Woodward to the said Caroline.
    And the defendant Caroline Woodward says, that this reading of said deed was the first time she ever heard of any such deed or knew that there was in being any such paper. And the defendants say that they had never before heard or known of any such deed, or of the existence of any such paper.
    The defendants say, that after said deed was read over aloud, and as the same was about being laid down, the complainant quickly thrust out his hand and seized the said deed, and immediately doubled up the same and put it in his pocket, all which was done by the complainant quickly and fraudulently and forcibly, and without the consent of these defendants, and to the surprise and astonishment of the said Caroline Woodward. And ¿hereupon the complainant being remonstrated with, and told that he had no right to the deed, the complainant then stated that the deed had never been delivered to him, and, on being asked if he had ever paid the consideration or any thing for the property, ho said ho had not; his grandfather, he said, was going to give it to him, and he refused to give up the deed, and then and there fraudulently, craftily, and forcibly, and against the consent or authority of these defendants, or any of them, took and retained possession of said deed.
    They deny that tho complainant recognized and pronounced the said deed to bo his, when found as aforesaid, until after he had time to road a portion of it. They say that tho complainant, on being told to deliver up said deed, on such demand being ma.de, refused to do so. They deny that the complainant ever had possession of said deed before, or that it is true that at the time, in seizing said deed, be resumed possession of it, as stated in the bill.
    They admit that complainant, in July, 1841, had said deed put on record, haying first, in Juno, 1840, got one Joseph S. Smith to testify to the said Anthony Woodward’s placing his name to the same in his, said Smith’s presence, the said Anthony Woodward having never acknowledged said deed in his lifetime.
    They admit that Anthony Woodward, deceased, remained in possession of said farm from the date of said deed, to wit, August 19th, 1825, until his death, on the 9th of May, 1840, and that his possession during that time was the same as it had been previous to August 19th, 1825; which possession they aver to have been by said Anthony Woodward in his own right as owner in fee. And during said time the said Anthony Woodward rented out to different tenants portions of said premises, and re - ceived the profits thereof; and lie farmed the said premises in all respect as he had always done, as the solo owner and occupier in his own right; and the complainant was never consulted in reference to the possession or farming the place by Ms grandfather, or admitted by his grandfather to be the owner ; but the said Anthony Woodward always represented himself to bo in possession as the owner, and frequently spoke of the interest that he declared his children, these defendants, would have in the said premises on. which he lived, after he was done with it. They deny the statement in the bill that the complainant permitted the said Anthony Woodward to remain there to be true; and, while they admit that said Anthony Woodward did a great deal towards the support and maintenance of the complainant, yet they deny that it was in any manner as a rent, compensation or ' consideration for the occupancy of said premises; and they deny that there ever was any tenancy existing between said Anthony Woodward as tenant and the complainant as landlord; and they deny that Anthony Woodward ever admitted any such tenancy to exist; but they aver that, during all said time, and up to his death, the said Anthony Woodward'held said premises adversely to the complainant. They admit that since the death of Anthony Woodward these defendants have remained in possession of said mansion house and the plantation thereto belonging, of which Anthony Woodward died seized; and that these defendants and said James Woodward, the father of the complainant, are the widow and heirs-at-law of said Anthony Woodward, deceased, who died intestate; and since the death of said Anthony Woodward the property has been continued to be held adversely to said complainant.
    They admit that request and demand was made of them by complainant to yield up possession, in this way: an ejectment was commenced by the complainant in the Monmouth Circuit Court, to recover possession of said premises; and this defendant Caroline Woodward was admitted to defend the same; and such proceedings were had in said action that, in the term of May, 1841, of said Court, before his Honor, James S. Nevius and a Jury, the same was brought to trial and duly tried; and on said trial the said deed was produced in evidence on the part of the plaintiff; and the defendant in said suit, Caroline Woodward, resisted said deed as having never been 'delivered by said Anthony Woodward, and as having been fraudulently obtained by complainant, and the said defendant in that suit then** gave in evidence proof of the title of her said deceased husband, the marriage, his seizure and death, his possession during the marriage, and of the heirs-at-law of said deceased; and further insisted that, if it had been proved that said deed had been duly and legally delivered at the time it bore date, and just on the eve of tho marriage of tho said Caroline, she being ignorant of it, it woulds till be a fraud and void as to ber, and she, as widow, by virtue of her right of dower, would be entitled to the possession of said, homestead farm and mansion house. And his Honor Judge Nevius charged that, although actual possession of a deed by the grantee named in it is presumptive evidence of delivery, yet, in tho case then on trial, it being proved that the deed was found in the desk of the grantor after his death, and that tho grantee had on his own more motion taken possession of it, it became necessary for the plaintiff to show that Anthony Woodward had delivered it in his lifetime; that when it was executed the plaintiff (complainant here) was not present, and that there was no delivery then, as the signing and sealing a deed written by the grantor and with the words, in the attestation, <£ signed, sealed and delivered” also written by tbe grantor, constitute no legal evidence of a delivery; that the showing or reading a deed, - even, by the grantor and retaining it in his hands was no delivery ; and that the declarations of the complainant made when the deed was found should be taken as evidence with great caution; yet, taking them as made, the intention or promise of the grandfather to give his grandson this farm would not amount to a gift j and that tho jury, in order to sustain the plaintiff’s title, must find that there was such a delivery of said deed, before the defendant’s marriage, as divested Anthony Woodward of all his legal right in the farm, and vested the legal title in the plaintiff, absolute and complete, before the marriage, so that the plaintiff could, by virtue of said deed, have ejected his grandfather from the farm; and that tho plaintiff’s present (then) possession o£ the deed, explained as it had been, constituted no presumption of a delivery. And the jury in said action rendered a verdict against the plaintiff, and in favor of tho defendant, Caroline Woodward; it being, the bill says, against the validity of the said deed, and in favor of tho the title of the said widow and the heirs-at-law of said Anthony Woodward deceased; and final judgment was entered accordingly in said action.
    The defendants deny that said Anthony Woodward, deceased, up to and within a few years of his death, acknowledged the existence and validity of said deed, or the existence of any settlement, but, on the contrary, charge that said Anthony Woodward, in his lifetime, would often and did often speak of the interest and right that these defendants, his children, would have to and in said farm when he should be done with it.
    These defendants have no knowledge of any branches of the family that knew of the existence of said deed, or of what Joseph and Lydia Bullock did as pretended in said bill, or of what representations were made to them, or of what they knew or pretended to know, or on what grounds they acted, or how they acted, touching the matters pretended in said bill.
    They deny that said Anthony Woodward expended large sums of money in the support and maintenance of the poor relatives of said Caroline Woodward, or on any of her relatives, or any money except so far as he supported the children, these defendants; and they deny that any of her family were in destitute circumstances, or ever became a charge on said Anthony Woodward.
    They admit that Anthony Woodward died seized and possessed of some other real estate, and also of personal estate, as stated in the bill; but they deny that the same descended to the children of said Anthony Woodward and say that the said real estate was only some small tracts, mostly pine lands; and the whole of said personal property was long since applied, in due course of administration, to the'payment of debts of said Anthony Woodward deceased; and that the Orphans’ Court of said county have also directed the administrators of said estate to sell, and they have sold, all the real estate of which said Anthony Woodward died seized, except said farm and plantation, that these defendants know any thing about; 'said sale being for the payment of debts; and still the whole of the debts were not paid; and, to pay the balance of said debts, the Orphan’s Court have by their decree ordered afpart of said homestead farm to-be sold by, the administrators.
    They admit they have the title deeds, They say that the deed set up by complainant, having never been delivered, cannot be said to be and was not ever by him fully executed; and they deny that the witnesses to said deed knew what it was, or that said Anthony Woodward told them what it was.

      They submit that the statements and allegations in the bill do not entitle the complainant to any consideration in this Court; and they deny that the complainant is without remedy except in this Court, and aver that there was no impediment to his pursuing the remedy resorted to by him in ejectment; and they insist that in such remedy at law, alone, can the complainant be perpormitted &e.; and the defendants submit that, the complainant haying left the matter to the ordinary and appropriate and in this case the only suitable tribunal for the final hearing and determination of the matters now involved, and the same having been decided adversely to him, and judgment entered accordingly, is, in equity and good conscience, and by the rules and practice of this Court, debarred from recovering in this Court.
    And the defendants who are infants submit their rights and interests to the protection of the Court.
    A replication was put in.
    Afterwards, on the first of March, 1848, a supplemental bill was filed, stating that Nimrod Woodward and Wesley Wilbur had obtained letters of administration of the estate of said Anthony Woodward, deceased, and had obtained an order of the Orphan’s Court to sell thirty acres of the said homestead farm for the payment of the debts of said Anthony Woodward, deceased, and praying an injunction against the sale, &c.
    The injunction was granted.
    The answer of the administrators admits the order for sale, &c. They also state that, on the occasion of the discovery of the deed in the desk, after Anthony Woodward’s death, some one asked the complainant if the deed had over been delivered, and that he said it had not boon delivered, that his grandfather was going to give it to him.
    Testimony was taken on both sidos, but there was no evidence of any delivery of the deed, or of the payment of any part of the money consideration mentioned therein, in addition to that of love and affection.

      W. L. Dayton and W. Halsted Tor the complainant.
    They cited 1 Bibb, 333; 7 Halsted’s Rep. 110; 4 Kent’s Com. 445, 455; 4 Halsted’s Rep. 156; 6 Gill & John. 256; 5 Wend. 546; Woodb. & Minot, 330; 12 John. 552; 20 Pick. 28; 4 Day, 66; Cro. El. 7; 17 John. 7; 6 Conn. Rep. 11; Dev. Eq. 15; 1 Greenl. Ev. 220; 34 Eng. C. L. Rep. 322; 9 Smede & Marsh, 387; 12 Eng. C. L. Rep. 351, 9; 10 Ves. J. 470; 3 Mason’s Rep. 378; 2 Wend. 317; 11 Eng. C. L. Rep. 439; 3 Green’s Ch. 485; Jerem. Eq. 91; 1 John. Ch. 240; 2 Vern. 473; 1 Atk. 625; 6 Simons, 31; 1 John. Ch. 450; 1 Ves. Sen. 314; 3 Swanst. 414; 3 Meriv. 256, 270; 25 Law Lib. 167; 2 P. W. 674; 1 Vern. 408; 1 John. Ch. 271; 22 Pick. 376; 6 Paige, 65, 535; 1 John. Ca. 97; Willes Rep. 682; 1 Story’s Eq., sec. 513, 254, 455, 6; 2 Ib. sec. 1485; Penn. Rep. 500; 1 Stuart, 136; 1 N. Hamp. Rep. 358; 1 Barb. Rep. 610.

      P. Vredenburgh for the defendants.
    He cited 5 John. Ch. 489; 3 Phil. Ev. 1285; 1 Smith’s Ch. Pr. 3, and note.
   The Chancellor.

The complainant will be left to his remedy at law. The question involved is the delivery or not of the deed, a question proper to be determined in a court of law.

Bill dismissed.


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    The Hamburgh Manufacturing Company and others v. Joseph E. Edsall, Elias L’Hommedieu and others.
    A. held the property of a manufacturing company in trust for its creditors, of whom B. was one to a large amount, and then for the company. B. held a mortgage on the property, and had got into possession, and was occupying the property in its appropriate use. A bill had been Sled by the company against A. and B. for an account, and a decree for an account had been made against both, and the Master was proceeding with the account. A. had made a conveyance of the property to B., and was insolvent. B.’s ability to respond was admitted. On motion for the removal of the trustee, and for the appointment of a new trustee or of a receiver, the Court refused to appoint a new trustee or a receiver.
    A motion for a receiver was before made, and denied. See ante, vol. iii, p. 298. On the additional facts now presented, that L’Hommedieu, the trustee, had made a conveyance of the property to Edsall, and that L’Hommedieu vras insolvent, a motion was made for the removal of the trustee, and for the appointment of a new trustee or of a receiver.

      W. Pennington in support of the motion.
    D. Haines, P. D. Vroom and R. Hamilton contra.
    They cited 19 Ves. 59 ; Ambler, 311.
   The Chancellor.

As to the removal of the trustee, if it be thought that any order or direction is necessary to prevent L’Hommedieu from continuing to act as trustee, or to prevent Edsall from accounting to or dealing with him as trustee, I will, out of abundant caution, make such order or give such direction. But is it at all necessary 1 By the conveyance from L’Hommedieu to Edsall, with knowledge of the trust, the trust devolved on Edsall; and he is accountable directly. .And the decree that has been made for an account is against both of them. Edsall could not protect himself by accounting' with L’Hommedieu. Edsalláis in possession, occupying the property in its appropriate use, and his ability to respond is not questioned. Tho Hamburgh Company, who make this motion, have only a right of redemption, they are not entitled to the possession of the property until certain debts are paid, among which is a large debt due to Edsall. The other creditors who are to be paid desire that Edsall be permitted to remain in possession and carry on the works, until the accounts are taken by the Master.

The appointment of a receiver is a matter in discretion; and I do not see that any benefit will result from it in this case, or any injury from omitting to make it; and great confusion and difficulty, and probably great injury to both parties would result from the appointment.

The only question remaining in the cause is, how much will remain to be paid, if any thing, by the complainants, to redeem the property, after applying the rents and profits to the payment of the debts. One side conjecture that the rents and profits to this time are sufficient to pay the debts. The other side say that the result of the accounts will show a large deficiency.

Under these circumstances, I think the better course is to incur no risk of loss by the appointment of a receiver. The position of things is now safe; the property is in the hands of a man of responsibility, skilled in carrying on the business, and actually carrying it on properly, and directly accountable as trustee, he being, also, a large creditor himself; and the other creditors to be provided for are satisfied that he should remain in possession of the works, and continue the business until the accounts are settled.

Motion for new trustee or receiver denied.


text:
    Ruth Wright v. Edwin R. V. Wright.
    A bill fbr (lover, among tiia pro! cnees of tho do&ndant, got out a decree foi’ divorce obtained by tho husband, in his lifetime; and tho bill alleged that that decree was fraudulently procured, and set out tho facts on which tho allegation of fraud was founded; and prayed dower, and that that decree hcdoclared void. On demurrer, the bill was held good.
    ‘The bill contained no prayer for process, nor was it signed by counsel. The demurrer was allowed as to those defects.
    On the 2d of October, 1847, Ruth Wright exhibited her bill, stating, that in and before October, 1828, she was living in the city of New York, and on tho 30th of that month was lawfully married, in said city of New York, to Asa Wright, then residing in the township and county of Bergen, in this State. That after the marriage she removed to the residence of her said husband, and resided with him several years, when, in consequence of unkind and cruel treatment on tho part of her said husband, she was compelled to abandon his residence, and she returned to the city of Now York, where she lias ever since resided and still lives.
    That on or about the-day of-1846, tho said Asa Wright died, intestate, as she is informed and believes. That to the timo of his death ho continued to reside in the township of Bergen aforesaid, in this State; and that he died possessed of a large personal estate in said township of Bergen, which is now in the county of Hudson, in this State, and seized and possessed of a large r-eal estate in the counties of Hudson and Bergen, in this State, leaving Edwin R. V. Wright his son and only heir-at-law, to whom tho said real estate descended, subject, nevertheless, to the right of dower of tho complainant in and to the same.
    That she is not able to specify with accuracy the real estate of which the said Asa was seized during the coverture, and at the time of his death. That he was, among others, possessed or seized of many lots or parcels of land in Hoboken, of great value, and on some of which were valuable improvements, and also of sevveral lots and premises in Jersey City, of great value, and of several other lots in the said counties of Hudson and Bergen.
    That she is informed, and believes it to be true, that at or after said marriage, and before the death of the said Asa, he the said Asa was seized in fee, or of some other freehold estate, of lands in which the complainant was and is entitled to dowex- ; among othei-s, of the following described lots, tracts or parcels of land, (describing fourteen different tracts.) h: That by reason of her marriage as aforesaid she became entitled, on the death of the said Asa, to her dower in all the real estate whereof the said Asa, or any other to his use, was seized of an estate of inheritance at any time during the coverture, and became entitled as against the said E. R. V. Wright to hex-dower in all the real estate of which the said Asa, or any other to his use, was seized of an estate of inheritance at the time of the death of the said Asa, and which descended to the said Edwin as his son and heir-at-law. But that the said Edwin hath not, nor hath any person in his behalf, or any other person, assigned or set off to the complainant her lawful dower in the said premises, or any part thereof, or accounted to her for the one-third part of the rents and profits of the said real estate, or any part thereof, since the death of the said Asa.
    That she hath frequently applied, in a friendly manner, to the said Edwin &c.; and she hoped &c.
    That the said Edwin refuses to comply with such her requests. And he at times pretends, &c., (setting out pretences.) And at other times the said Edwin pretends, that although the complainant was at one time the wife of the said Asa, she was not at the time of his death, and for some years before, his lawful wife ; but that on or about September 14th, 1840, the said Asa filed his petition in this Court against the complainant, praying a divorce from the bond of matrimony, on the ground of wilful, continued and obstinate desertion of the complainant from the bed and board of the said Asa for more than five years; and that thereupon such proceedings were had upon the said petition that, afterwards, on or about the,-day of--1841, it was adjudged and decreed that the complainant be divorced from the bond of matrimony for the cause aforesaid. Whereas she charges that, if there are any such proceedings or decree, the same1 are null and void, for that the said Court had not at the timo of entertaining the said proceedings and pronouncing said decree, any right, jurisdiction or authority whatever over the matters of complaint as exhibited in the said petition, or over the complainant as a party defendant thereto; and also that the samo are null and void because the complainant tad no notice, either actual or legal or constructive, of the said proceedings or decree; and because the said pretended decree was obtained by the said Asa, with the connivance and assistance ox the said Edwin, by gross fraud and concealment, and under such circumstances as to render such decree a fraud upon the rights of the complainant, upon the law, and upon this Court, and ought to be hold and considered void and inoperative.
    And, as evidence of want of jurisdiction in the Court, she charges, that the marriage between her and the said Asa, which the said proceedings were intended to dissolve, was solemnized in the State of New York, and without the jurisdiction of the said Court, and she was, at the time of the commencement of the said suit, and during the progress thereof, and when the said pretended decree was rendered, resident in the State of New York; and that no notice of said proceedings was ever served on or given to the complainant, either personally or otherwise; and that the said decree was made in the absence of the complainant and without any notice to her that such decree was sought or intended.
    And, as evidence of the fraud that was practiced upon the complainant and upon the Court in the procurement of the said decree, and of the intentional concealment practiced by the said Asa, with the connivance and assistance of the said Edwin, she charges, that, in and by the act of the Legislature which authorizes a petition to be filed for the procurement of a divorce, it is directed and required that, on filing said petition, the clerk of the said Court of Chancery shall, if required, make out a certified copy thereof, to be served on the defendant, and issue a citation, under the seal of the Court, for the defendant to answer the said petition on or before the first day of the next stated term of Court, which citation shall bear dato the day of the issuing thereof, and bo tested in the name of the Chancellor 5 and that every such citation shall be served, either by delivering to the defendant a copy thereof together with a certified copy of the petition, or by leaving the said copies at his or her dwelling place or usual place of abode, at least twenty entire days before its return.
    That, although the petition in the said suit was sworn to on the 17th of March, 1840, and was filed on the 10th of September, 1840, the said citation was not taken out or issued until the 30th of said September, and was made returnable on tho second Tuesday of October then next; so that, if the process and copy of the petition were placed in the hands of tho sheriff or other legal officer on the day the process bears date, there was not time sufficient for a legal service of it. And she charges that the said citation, for the cause aforesaid, is inoperative and void upon the face of it; and that no copy of the petition was ever annexed to the said citation, which was issued by the solicitor and not by the clerk; and that the time between tho date and the return of the said citation was. intentionally made short sp as to prevent the usual and proper inquiry, and that no knowledge of the said proceedings might roach the complainant.
    And, as a further evidence of the fraud which was practised upon the complainant and upon this Court, she charges, that tho affidavit of the non-residence of this complainant, endorsed on the said citation, was made at Jersey City on the 19th of October, 1840, which was a week after the commencement of the term to which the said citation was returnable; and it does not appear that the sheriff, or other person returning the said citation, had the process in his hands to serve at any time before the second Tuesday of October, when the same was returnable.
    And, as a further evidence of fraud in tho said proceedings and in the procurement of the said decree, she charges, that the said process of citation was never placed in the hands of the sheriff of Hudson, or the coroners thereof, or of the sheriff or coroners of any other county in the State, to be served and executed 5 and that the affidavit of the non-residence of this complainant is made by said Edwin; and that the said process was delivered by tho solicitor in the cause to the said Edwin to bo served, or that the said Edwin procured tho samo by his permission, but the more effectually to conceal tho said proceeding, the said process was never delivered to any sworn or proper officer, or to any proper officer of this Court; and that the same was returned to the office of the clerk of this Court by the said Edwin at his own convenience, without any return whatever endorsed upon it.
    And, as a further evidence of fraud and concealment in the procurement of the said decree, she charges, that the said citation was retained in tho hands and possession of the said Edwin, or of some other person or persons by his direction, for more than six weeks after it was returnable, and was not returned and filed in the office of the clerk of this Court until November 25, 1840 j and she charges, that tho same was retained, and not filed of record until the term was past, expressly for the purpose of concealing the fact that such process had issued, or that any such suit was pending, from the notice and observation of the solicitors and counsel of this Court, who are in the habit of examining, in term time and during the regular sessions of tho Court, tho returns of process made to the several terms, respectively, and especially from the notice of the solicitor of the complainant, who had in charge, as the said Edwin then well know, the defence of this complainant in another cause which had, some time before, been brought in this Court by tho said Asa Wright for a divorce from this complainant; and which the said Edwin well knew was then pending and undetermined.
    And, as a further evidence of fraud and concealment in tho procurement of tho said decree, she charges that, on tho day the said citation was filed as aforesaid, the said Asa Wright, the petitioner, or the said Edwin, his agent, or the solicitor of the said Asa Wright, procured an order of this Court requiring this complainant, as an absent defendant, to appear on or before the next stated term of the Court to answer the said petition; in which order it was directed, that a copy of the said order be published, within twenty days after the date of said order, in the Jersey City Advertiser, for tho space of four weeks successively, at least once in every week, or that the same be personally served on this complainant, by delivering a copy thereof to her or by leaving it at her usual place of abode within twenty days from the date of the said order. And she charges, that the said order was not in accordance with the requirements of the law; that the same is uncertain as to time, and that there were not two months intervening between the date of the said order and the first day of the next stated term of the said Court 5 and she charges that this was made necessary by the fraudulent retaining of the citation, and is an important link in the chain of circumstances which show the fraudulent intention of the said petitioner and his agents ; that it is a matter of substance, and not a mere irregularity for which the said decree cannot he impeached.
    And, as a further evidence of the fraud practised on the Court and the complainant in this behalf, the said petitioner, concealing from this Court the particular circumstances of the ease, and especially, concealing from the Court the fact that the complainant was represented by counsel in another cause then pending in said Court, in which the said Asa was also complainant, procured an order to be made directing a copy to be published for the shortest possible space of time allowed by the law, and only in a newspaper printed in Jersey City, which it was almost certain the complainant would never see.
    That the copy of the said order is, as she is informed and believes, inserted in the fourth column of the fourth page of the said newspaper, it being an obscure part of said paper; whereas all the other legal advertisements in said paper are inserted in the third column of the third page of the said paper, and so inserted, with the usual form of heading, as to be conspicuous or easily seen. That the said order was not only inserted in an obscure part of the paper, where such notices would not likely he observed or looked for, hut it was so inserted without the usual heading, immediately below and in connection with some doctor’s advertisement with a large heading to it, and so as apparently to form a part of the said doctor’s advertisement. And she charges that the said order was inserted in that pccnliar and fraudulent manner with the knowledge of the said Asa Wright and by the cunning and contrivance and express directions of. said Edwin, the son and agent of the said Asa, and for the purpose of concealing from the complainant, if possible, the fact that such suit was pending in this Court, and preventing her from appearing and making defence against the samo as the said Asa and Edwin well know she had it in her power to do. And slio charges that the protended publication of the said order was a gross fraud upon the law and upon the Court; and that, by the fraudulent and designing conduct and contrivance of the said Asa and Edwin, she was deprived of the opportunity afforded her by the law of defending herself against the false charges set up against her as the grounds for a divorce. And she further says that she was totally ignorant of the existence of any such proceedings during their pendency, and of the decree which is alleged to have been obtained against her, and remained entirely ignorant of the same until some time after the death of the said Asa Wright.
    And, as a further evidence of fraud and concealment in procuring said pretended decree, she charges, that, at the time when proceedings were first commenced against her in the suit which resulted in a decree of divorce against her as the said confederates protend, there was a suit pending in the said Court between the said Asa and her, in which the said Asa was complainant, and in which he sought to obtain a divorce from her on the ground that she had been unfaithful to her marriage vows. That she, having fortunately heard that such suit had been commenced against her, employed Theodore Freiinghuysen, Esq., then a solicitor of this Court to file an answer to said Asa’s bill and defend her in the said suit. That such answer was filed, denying all the material allegations of the said bill; and issue was thereupon joined by the said complainant in that suit. That he, thereupon, proceeded to take evidence in support of the charges in his bill, and filed the said evidence in this Court, where the samo now remains; after which no further stops appear to kavo been taken in the said cause. That she, being conscious of her own integrity and innocence, was unwilling to dismiss the complainant’s said bill for want of prosecution; but preferred that the complainant should make further efforts, if he chose, to make good his charges.
    She charges that, under these circumstances, she had a right to suppose that no further steps could be taken against her without notice to herself or her attorney; and that the prosecution of the said second suit, and the procurement of a decree without notice, and by concealing from this Court the fact that another cause for the same purpose was pending undetermined in the said Court, was a gross abuse and perversion of the law, a fraud' upon the practice and integrity of the Court and the rights of this complainant.
    And, as a further evidence of fraud on the part of the said Asa, she charges, that the said Asa well knew, when he filed his said petition in this Court praying a divorce from this complainant on the ground of wilful and obstinate desertion, that the said charge was wholly untrue. He well knew that the answer of this complainant to the bill filed by the said Asa, besides denying the gross and insulting charges therein contained, set out the true reasons of the separation which took place between this complainant and the said Asa, and showed that it was occasioned by the cruel treatment of the said Asa. He knew that his allegations could be promptly met and disproved, and that the answer to them was on the files of this Court; and yet he proceeded against her as an absent defendant, and procured the said pretended decree ex parte, fraudulently withholding from the Court important facts in regard to the true situation of the case and of the parties.
    And, as a further evidence of fraud in the procurement of the decree she charges, that it is alleged in the decree prepared and signed in the said cause, that the said cause was duly set down for hearing “ at the present term;” and the decree is entitled “at a special Court of Chancery held at Trenton on the 19th of November, 1841.” And she charges that the said cause was not set down for hearing at any time; and that the same could not be set down and heard at a special term of the said Court; and that, if the same was heard at any special term or time by the consent of the Court, it was on the application of the said complainant, Asa Wright, or the said Edwin ; and the said decree was obtained by concealment and imposition.
    And she denies the truth of the allegations contained in the petition of the said Asa that she was guilty of wilful and obstinate desertion. On the contrary, she alleges the truth to be? that after her marriage she continued to reside with her husband until on or about November 8th, 1880, at which time she, admits, she left his residence and went to resido in the city ox New York» That she was compelled to leave the residence of her said husband by reason of his cruel treatment of her during almost the whole of the period they resided together. That he would often, in the grossest terms, accuse her of infidelity to her marriage vows, and that without the slightest foundation 5 that this course of conduct was pursued and persisted in from timo to time, until, satisfied that there was no hope of change, and finding that his whole deportment towards her was that of cruel suspicion and disgraceful crimination, she was compelled to leave Ins residence, and left the same with his full understanding and knowledge. And she insists that the said pretended decree of divorce is null and void, haying been procured by fraud, concealment and imposition, and made without authority or right.
    The hill prays a decree for dower, &c.; and that the said pretended decree against this complainant may bo declared inoperative and void; and that the said defendant may be precluded from- setting up the same in bar of the relief sought by this complainant ; and for such other and further relief, &c.
    The defendant put in a demurrer to the bill; and for causes of demurrer showeth, that it appears hy the hill that it is exhibited for the purpose, among other things, of setting aside or making void and inoperativo a certain decree of this Court, in a certain cause heretofore ponding therein, wherein Asa 'Wright was complainant, and the said Ruth Wright was defendant, dissolving the marriage contract theretofore subsisting between the said Asa and the said Ruth, and divorcing the said Asa from the said Ruth, a vinculo matrimonii j and that the said Asa had departed this life long prior to the commencement of this suit hy the said Ruth.
    2d. That it appears by the bill, that it is exhibited for the purpose of obtaining, among other things, certain dower or rights of dower claimed by the complainant in certain real estate mentioned in the bill and for an accounting by the defendant with the complainant for the rents and profits of said real estate; yet
      it does not sufficiently appear by. tbe bill that the defendant ever was or that be now is in possession of such real estate or any part thereof.
    8d. That it appears by the bill, that it is essential to the complainant’s right to exhibit her said bill against the defendant for the purposes and in the manner and form therein stated, that the said bill should allege positively that the defendant is heir-at-law of the said Asa Wright; yet it appears by the said bill that he is shown to be such heir-at-law only upon the information and belief of the complainant.
    4th. For that it appears by the said bill, that the same seeks a decree against the said Edwin R. V. Wright; yet it does not appear thereby that any subpena or other process is prayed for therein against the said Edwin R. V. Wright requiring him to appear and answer the said bill.
    5th. And, also, for that it appears by the said bill, that the same is not signed by any counsellor of this Court, or of the Supreme Court of this State, in the capacity of counsel.
    0th. And, also, for that it appears by the said bill, that the same is exhibited against the said Edwin R. V. Wright for several distinct matters and causes which do not depend on each other | and, by reason of joining such several and distinct matters and causes together in the said bill which do not depend on each other, the said bill is drawn out to a considerable length, and tbe .said Edwin R. Y. Wright is compelled to take a copy of the whole thereof; and by reason thereof the pleadings, orders and proceedings will, in the progress of the said suit, be intricate and prolix, and the said Edwin R. V. Wright will, by reason thereof, be put to unnecessary costs, expenses and charges in his defence thereof.
    7th. And, also, for that the complainant hath not in and by her said bill made or stated such a case as doth or ought to entitle her to any such discovery or relief as is sought and prayed for, from or against this defendant.

      W. Halsted in support of the demurrer.
    He cited 1 P. W. 593; 2 Dickens, 707; Story’s Eq. Pl. sec. 790; Comberb. 200;
      Story’s Eq. Pl. sec. 409; 5 Dana, 194; 3 John. Ch. 275; 4 Ib. 85.

      P. D. Vroom contra.
    He cited 1 Scho. Lef. 364, 374; 2 P. W. 73; 1 Bro. Parl. Ca. 414; Story’s Eq. Pl. sec. 673, 4, 5, 8, 9; 1 Hoff. Pr. 42, 3, 4; Mitf. Pl. 43, 241, 302.
   The Chancellor.

It is a bill for dower: this is the substantial relief prayed. The bill anticipates that a decree for divorce, obtained by the husband, in his lifetime, will be set up as a defence; and asks dower notwithstanding that decree; alleging that it was fraudulently procured, and setting out the facts on which the allegation of fraud is founded’. The Complainant might have filed her bill for dower saying nothing of the decree for divorce, and left that to come up in defence. But I see no objection to framing a bill as this is framed; and I think the defence should be by plea and answer, and not by demurrer. The grounds of demurrer, therefore, which go to the matter of the bill are not well taken. As to these, the demurrer will be overruled.

The want of prayer for process, and of signature of counsel, are defects which require amendment. As to these the demurrer is allowed.

Order accordingly.