text:
    Edward A. Lines v. Justin Spear, Robert J. Henry and Robert Johnson.
    Where a bill makes a ease for an injunction, the injunction will not be dissolved until the material allegations of the bill are denied by answer. If the answering defendants are unable, from want of knowledge, to deny allegations of the bill which are material to its equity, the injunction is retained. It stands on the case made by the bill, and will be held until that ease be overcome. That the only defendant who can answer such allegations is absent from the State is no ground of exception to the general rule.
    The bill, exhibited April" 4,1849, states that, early in August, 1847, Edward A. Lines, the complainant, then residing and doing business in Chatham, Columbia county, New York, at the solicitation of Justin Spear, one of the defendants, then residing and doing business as a grocer in Newark, New Jersey, agreed with said Spear to enter into a co-partnership with him in said grocery business in Newark, and to put into said business $400 in cash; in consideration of which the complainant was to be entitled to the half of all the stock in trade then owned by said Spear, and to purchase from said Spear, for the sum of $600, the undivided half of two lots of land (described in the bill) in Newark aforesaid, being Nos. 31 and 32 Kinney street. And the complainant was, by the said agreement, to be an equal partner in said business with said Spear, in all respects, during the continuance of said partnership ; to which there was no limit set-by the said agreement.
    That the store wherein Spear was then doing business, and. wherein it was agreed that the partnership business should be carried on, is situated on the last1 described of said lots, and there is a dwelling-house on the first described of said lots.
    That, at the time of the making of the said agreement, Spear represented to the complainant, as an inducement to the complainant tcf enter into the same, that the said real estate was unincumbered save by a mortgage of $600, which he, Spear, was going to take up with the $600 agreed to be paid by the complainant as aforesaid ; and represented to the complainant that the said store was an excellent stand for business; that he, Spear, had already a business very firmly established there, but it being a business which required more capital than he could command, that complainant, by entering into said agreement with him, would be greatly advantaged, as well by the profits of said business as by the said purchase of half of said real estate.
    That, in pursuance of said agreement, the complainant moved, with his family, to Newark, and on or about April .1, 1848, he and his family entered into the occupancy of said dwelling-house, and ha ve continued to occupy the same ever since, the complainant not being able to occupy said house before that time because, before the making of said agreement, it had been rented by said Spear until April 1, 1848. And the complainant entered into the joint occupancy of said store with Spear, as partner with Spear: Spear and his family occupying a portion of said building on said second lot used as a store.
    That on or about September 8, 184T, the complainant, at the request of Spear, and in pursuance of said agreement, paid to him $1,000, Spear declaring to complainant that he wanted to use $600 thereof to pay off said mortgage of $600.
    That complainant and Spear continued to carry on said business, in partnership, under said agreement, until on or about January 5, 1849, when the same was dissolved by mutual consent as hereinafter mentioned. That during all the period of said partnership, the reparations done to the houses on the said two lots, which amounted to $200, were paid for out of the moneys of said partnership, as were, also, the taxes and a considerable sum of money assessed on said property for grading Kinney street, and all the interest on the mortgages on said premises, amounting to a considerable sum, the complainant finding, after he had entered into said partnership, that the incumbrance on said premises was much larger than Spear had represented. That said property was taxed to the firm of Spear & Lines, during all that period, by the express directions of Spear i and that, at all times during said period, Spear gave out and adsaitted that said land belonged to him and the complainant together.
    That, straightway after the payment by the complainant of said $1,000 to Spear, complainant requested Spear to execute and deliver to him a deed for his half of said real estate; but Spear put him off by a promise that in a day or two, when he and complainant had leisure, they would go to a lawyer and'have the deed drawn, executed and properly delivered to the complainant, and gave the complainant a receipt for said $1,000, as a 'memorandum until said deed could be drawn and delivered. That «complainant, from time to time, importuned Spear for said deed; ■ but Spear as often, on one pretext or another, delayed the matter until on or about January 1, 1849, when, having casually heard that Spear had made an agreement with one Robert G. Henry to sell said land to him, the complainant immediately ■charged Spear with the fact, and upbraided him for having undertaken to sell what was not his property, in agreeing to sell the whole of said land to said Henry. And thereupon Spear admitted he had made said agreement with Henry, but added, that the complainant had no cause of apprehension, since it would amount to nothing and would not bo a sale; that Henry was worth little if anything, and could not take the property.
    That, a few days after, Spear made a calculation of the net value of the partnership property of Spear & Lines (in which ¡statement was included all of said real estate) after paying the debts of said firm, and exhibited the same to the complainant, ■and declared, and showed by his calculation, that the amount of money to which he and complainant were jointly entitled as the net value of all and singular their partnership property, including said real estate, after paying all the debts and incumbrances, was $1,950; and thereupon the complainant offered to sell out Ms "interest to Spear for $915 — $25 less than he had paid ; but Spear alleged, that being tired of the grocery business, and not having the means to buy the complainant’s interest and carry on the business, he would be willing to sell his interest to the complainant for $850.
    That, having confidence in Spear’s representations, seeing vshat Spear had, ever since the commencement of said partnership, had the entire management of the out-door business of the; concern, making the purchases and having the charge of tho payment of the debts of the concern and the collection of moneys-due the firm, and the said statement and calculation of Spear appearing, by an examination of tho books of the firm, to be correct and just, and the complainant being extremely solicitous to Save himself as best he might from further loss by said business-connection, though Spear had but a few weeks before assured the complainant that the firm was making money, agreed with Spear to purchase Spear’s interest in said business and real estate, for the sum of 0850, and that the said sum should bo paid to Spear out of tho proceeds of the sale of said real estate to said Henry, if Henry should take it, otherwise by complainant, if Henry should fail to take said property 5 and thereupon the complainant was to have a deed for said real estate and was to assume the debts of the firm and take the stock and moneys due tho firm. And, a few days after, Spear wont to an attorney and procured a certain instrument of writing to be drawn whereby, after reciting, in effect, that there existed an agreement executed between said Spear and said Henry for the sale of said land tc Henry for 02,800, it was stipulated, in effect, that in case Homy should take the premises on tho 1st- of April, 1849, then that tire complainant should have 0150, out of said 02,800, (tho incumbrances by way of mortgage on said property being estimated to amount to 01,800,) and should yield up the possession of sale£ premises on said 1st of April. And complainant believes it was further stipulated, in said instrument, that in that case the complainant was to pay 050 for tire use of the premisos from tho time of tho entering into said agreement between the complainant and said Spear until said 1st of April. But the complainant, having no copy or memorandum of said instrument, cannot speak positively as to the contents thereof, the same being in tho possession of Robert Johnson hereinafter mentioned, or of Me attorney, and said Johnston’s attorney having refused to complainants attorney access thereto or a copy thereof, alleging that Johnston was unwilling that complainant’s attorney should see it or have a copy of it, and that Johnston was unwilling tc give tho complainant a stick to beat out his, Johnston’s, brains with, or words to that effect. And it was further stipulated by the said instrument, in case Henry should not take the premises on said 1st of April, then that the complainant should be entitled to the same, and should pay Spear $850 in cash, said premises being subject to the aforesaid incumbrances.
    That, at the time of executing said agreement, Spear, with his wife, executed to the complainant a deed for said premises, and left it in the hands of A. S. Hubbell, Esq., to be delivered to the complainant in case Henry should fail to take said premises on said 1st of April.
    That, according to said last mentioned agreement between him and Spear, he did, on or about January 5, 1849, by an agreement then made with Spear, assume the debts of said firm, and Spear transferred to him all Spear’s share and interest in the goods in said store and the books of account, debts, dues, rights and credits of said Spear & Lines, and the said firm was thereupon dissolved.
    That, in a very few days after such dissolution, he discovered that Spear had omitted, in his said calculation, debts which had been contracted by him in the name of said firm, and of which the complainant had no account in the books of said firm or otherwise, to the amount of $150. That he spoke to Spear, immediately after such discovery and on or about January 19, 1848, and charged that it evinced bad faith in Spear in inducing the complainant to make said agreements; and Spear alleged that said debts had escaped his recollection ; and that he would give complainant his two notes for $75 each, payable in three and six months ; and said there would be no question about the payment of said notes, as he Spear was about going into business. And Spear proposed that, on giving said notes, the com-, plainant and he should each sign a short paper ratifying said agreement of January 5, 1849 ; to which proposition the complainant, believing Spear’s statement, consented; and Spear then gave complainant said two notes for $75 each, dated January 19, 1849, payable in three and six months, to complainant’s order, without defalcation or discount; and Spear then drew a paper setting forth, in effect, that in consideration of a further settlement with him, Spear, it was understood that the agreement made with Spear on the 5th January, 1849, should ho carried out the same as if no new arrangement had been made; which paper was signed by complainant, and immediately thereafter Spear left the store wherein said last mentioned transaction had taken placo, and, in company with said Robert Johnston, who was waiting for him, went to New York to engage his passage and make arrangements to go to California.
    That said notes remain in complainant’s hands wholly unpaid. That said Robert Johnston was present at and cognizant of said last mentioned transaction, and fully aware of the fraud thereof.
    That, in a few days after this last transaction, the complainant discovered that Spear had involved the partnership in another debt, of §158, or thereabout, and of which no account had been in any way given to the complainant, nor any entry thereof made in any of the books of said firm, nor any mention made in the said calculation of said Spear ; but the same had been kept entirely out of sight and from complainant’s knowledge, by Spear. And the complainant, directly, undertook to get some explanation from Spear; but after repeated efforts was unable to do so ; and at last, Spear, to rid himself of complainant’s importunities on the subject, appointed a meeting at complainant’s house for the purpose of giving the complainant the desired explanation; but Spear, at or near the time so appointed, went .secretly, in the night, to New York, and there went on board a vessel bound for California, and remained there until the vessel sailed.
    That, from time to time, since January 19, 1849, the complainant has discovered debts, amounting to more than $600, which had been contracted in the name of said firm, prior to the dissolution, by Spear, without complainant’s knowledge, and of which Spear had made no account in the books of the firm, nor in his said calculation; the existence of which was well known to Spear at the time of entering into said agreement for dissolving said partnership, and was fraudulently concealed by him from the complainant.
    That in said calculation made by Spear many of the debts due from said firm, and which had been contracted by Spear, in New York, in the name of the firm, were put down at sums considerably below their real amount, and some of the assets of the firm were put down at amounts far exceeding their real value. And the complainant charges that Spear made the said calculation in manner aforesaid and with the concealments aforesaid with the deliberate intention thereby to defraud the complainant out of his portion of said real estate, and fraudulently to prevail on the complainant to assume the payment of the debts of the firm; the complainant showing that the assets of said firm, exclusive of said real estate, were insufficient by f 1100, or thereabouts, for the payment of the debts of the firm; but which fact was studiously and fraudulently concealed from the complainant by Spear.
    That, on or about January 16, 1849, as the said Robert John-. ston pretends, but the complainant prays a discovery thereof, Spear pretended to convey to said Henry the,said premises, for §2,800, subject to the mortgages on said premises ; and, as part of the same transaction, Henry pretended to convey to said Robert Johnston the same premises, for the same consideration, subject to the mortgages ; and that, at the time of the execution of the last mentioned conveyances, the deed which had been left in the hands of said A. S. Hubbell for delivery to the complainant in case Henry should fail to take said premises on the 1st of April, 1849, was destroyed by or at the instance of Spear, Henry and Johnston or one of them. That the making of said pretended conveyances and the destruction of said deed took place without complainant’s knowledge; nor had he any intimation thereof until some time in March, 1849.
    That, at the time of the making of the said agreement between Spear and Henry for the sale of said property, the complainant’s interest in said property was well known to the agent of Henry who negotiated the matter and to said Henry; Spear having theretofore expressly told said agent; and when inquired of by Said agent, in the presence of Henry, concerning the complainant’s interest in the said property, Spear replied that the complainant had nothing to show for it. The complainant therefore charges that Henry had full and complete notice of the complainant’s interest in said property. The complainant also charges that the said agreement between Henry and Spear was a fraud upon the complainant, and intended as such by Spear and Henry.
    That, after said agreement between Spear and Henry had come to the knowledge of the complainant, and some time prior to January 5, 1849, and before the said conversation between complainant and Spear which resulted in the making of the said calculation hy Spear, the complainant was in the bakery of A. Johnston, and the said Robert Johnston was also there ; and the conversation between the complainant and A. Johnston turned upon the said agreement between Henry and Spear for the sale of said premises ; and the complainant, there, in the hearing of said Robert Johnston, complained that Spear had agreed to sell said premises to Henry, and had made the proceeds of such sale payable to himself, and not to the complainant and him jointly, since ’ the complainant’s interest in the property was equal to Spear’s, or used words to that effect. That A. Johnston, tho brother and friend of R. Johnston, well knew, from the time of complainant’s arrival in Newark, after entering into said partnership with Spear, that the complainant was an equal owner of said property with Spear ; the said A. J. having, shortly after complainant’s arrival in Newark, spoken to the complainant on the subject and advised him to search the records for incumbrancces on said property.
    That said R. J. well knew of the complainant’s interest in said promises, and was well aware of the fraudulent conduct of Spear towards tho complainant; and the complainant also charges that the taking of said deed by him from Henry was a fraud upon the complainant, and an attempt hy said R. J., in combination with Spear and Henry, to deprive tho complainant of his known interest in said premises.
    That complainant’s interest in said promises was well and generally understood hy the persons with whom said firm had transacted business.
    That tho delivery of said deed to Henry and tho conveyance by Henry to R. J. was a fraudulent contrivance intended to give the transaction tho appearance of fairness as though Henry had fulfilled said agreement between him .and Spear. That since said conveyance by Henry to R. Johnston, Henry has never taken a deed for said premises. That, since said pretended conveyance to Henry and by him to 11. J., Henry has declared that he had taken the deed and paid the consideration j and has also since declared that he has not fulfilled said agreement between him and Spear ; and has also said that all the money Spear received for said premises he, Spear, had received from R. J., but that he, Henry, could not say how much; and, since then, R. J. has said that he bona fide took said deed from Henry and paid him the full amount of $1,000, the consideration by said agreement between Henry and Spear to be paid for said premises over and above the incumbrances thereon; and at other times the said R. J. has said that he did not purchase the said premises, but loaned , $1,000 to Henry to enable him to fulfill said agreement and take said deed ; and that he, R. J., took said deed from Henry to secure himself for said loan of $1,000 ; and that he was afraid that Henry would not take said premises on said 1st of April, 1849, and desired that the complainant would take them off his hands and pay him said money paid, as said R. J. alleges, by him to Henry.
    That the complainant has been informed and believes that, since the said pretended conveyance by Henry to R. J., the said R. J. has sent word to Henry that he wanted him, Henry, to take said premises on said 1st of April, according to said agreement of Henry with Spear, and that Henry has returned for answer that ho would not take said premises because said R. J. had not complied with the agreement between them, which was to the effect that R. J. should clear the property of one of the mortgages upon it, and that that must be done by R. J. before he* Henry, would consent to take the deed according to said agreement with Spear.
    That Henry, on being inquired of by complainant as to whether any provision was made, in said pretended purchase by Henry, for the payment to the complainant of the $160 mentioned in the said agreement between Spear and the complainant, and made payable in case Henry should take said property on said 1st of April, 1849, has replied, at some times, that said sum would be paid by him to 'complainant and that complainant need have no apprehension about it. But complainant shows that neither said Henry nor said R. J., nor Spear, have at any time paid said money; hat, instead thereof, the said Henry and R. J. declare that it is uncertain whether complainant will he entitled to it.
    And complainant believes and charges, that Henry and R. J. intend, in confederacy with Spear, to defraud the complainant as well of said $150 as of his entire interest in said real property.
    That Spear, as complainant is informed and believes, did, very shortly before his departure for California, confess, or in some way cause to be entered up, a judgment or judgments against him in favor of said R. J., whereupon execution or executions have been issued and levied on all the personal property of said Spear, household goods, &c.; which personal property is now held by said R. J. under cover of said levies ; no sale having been made.
    That, shortly before Spear’s said departure, the said R. J. declared that Spear owed him nothing.
    That since said levies the said goods and personal property have remained in the possession of the wife of Spear; and she has lately declared that she is willing to rent part thereof, and intends to find storage for the remainder during an absence from the State which she contemplates.
    That, shortly before Spear’s said departure, he executed to said R. J. a power of attorney, and that, by virtue thereof, said R. J., since Spear’s departure, has possession of Spear’s books of account and other evidences of debt belonging to Spear, and is collecting the moneys due thereon.
    The complainant charges, that said confessed judgment is frudulent, and was made with a view of preventing the complainant from obtaining any payment out of the personal property of Spear on the said two notes of §75 each, and any redress for the manifold deceptions and frauds before mentioned, practised by Spear on the complainant; and that said power of attorney was given with the like intention.
    Complainant believes and charges that no consideration was in reality given by R. J. to Spear or Henry for said deed ; and that if any money passed between R. J. and Henry and Spear on said protended delivery of said deeds from Spear to Henry and from. Henry to R. J., the same was paid simply to give the color of fairness to the transaction, and was in some way returned to said R. J. by said Spear, by virtue of some agreement between them to that effect.
    That Henry has not, as complainant believes, and he has taken pains to inform himself, paid any money to R. J. on account of said property, in any way.
    That R. J. has, inequitably and unjustly, commenced proceedings against the complainant for the recovery of the possession of said premises, before C. H. A., a Justice, and has also commenced a suit before the same Justice against the complainant, in the name of Spear, to the use of said R. J., for the collection of the said $50 in and by said agreement between complainant and Spear stipulated to be paid to Spear in the event of Henry’s taking the premises on said April 1st, 1849.
    That Spear, shortly prior to said 16th January, 1849, after the dissolution, offered said premises to a merchant in Newark, and to take his unsecured note therefor, for $850; and that said Spear proposed said sale for the declared purpose of depriving the complainant of his interest in said premises. Complainant charges that Johnston, having notice of complainant’s interest, and combining with Spear in said pretended conveyance thereof to him, Johnston, by Henry, ought not to be permitted to hold complainant’s interest in said premises under said pretended conveyance.
    The bill prays, that the said agreement in writing, made by the complainant with Spear, touching said real estate and the disposition of tho moneys arising from the sale thereof to Henry, or the taking of the deed therefor by the complainant in case of the failure of Henry to take said deed therefor, may be set aside; the same having been obtained by fraud, deception and imposition upon the complainant, by Spear, with the aid and combination, as complainant believes, of R. J. and Henry; and that the said other agreement, between tho complainant and Spear, touching the dissolution of said partnership may be set aside, the same having also been obtained by fraud and imposition on the complainant. And that Henry, R. J. and Spear, or one of them, may be decreed to pay to the complainant tho half of said premises ; and that an account may be taken of the partnership business from the commencement thereof until the time of the dissolution, as well as of all payments of debts of the firm paid by complainant since said dissolution ; and that Spear may be decreed to pay to tho complainant, out of tho other half of said property, his just proportion of the debts of said firm so paid by the complainant since said dissolution, as well as his proportion of those unpaid at this time ; or, if the Court shall bo of opinion that the complainant is not entitled to the relief before prayed, then that the said deed to R. J., if it should appear that any money was advanced hy him bona fide thereon to said Henry, (which the complainant believes and charges is untrue,) be held to he a lien on the said premises only to tho amount of such advance, and liable to be discharged by the payment of the amount so advanced, with the interest thereon ; or, if the Court shall think the complainant is not entitled to any of tho before mentioned relief, then that the said Henry, R. J. and Spear, or one of them, be decreed to pay the complainant the said sum of $150 mentioned in said agreement between tho complainant and Spear touching said real estate and the disposition of the proceeds thereof in case said Henry should take the same on tho 1st of April, 1849 ; and that said R. J. bo injoined from conveying or incumbering the said premises ; and from prosecuting said suits at law, or taking any step for the recovery of the possession of said promises, or for the ouster of the complainant therefrom, or for tho collection of the said $>150 stipulated as aforesaid by said agreement to be paid by tho complainant to Spear oil the said 1st of April in case Henry should take said land and premises ; and for such other and further relief, &c.
    On the reading of this bill the injunction prayed was allowed.
    The defendants Henry and Johnston put in their answer to the bill; and thereupon moved to dissolve the injunction.
    In reference to material allegations of the bill, these defendants answered that they had no knowledge.
    No answer was put in by the defendant Spear.

      J. Chetwood and A. S. Hubbell in support of the motion.
    They cited 1 Green’s Ch. 112, 404; 8 Ib. 446.

      A. Whitehead contra.
    He cited 1 Paige, 164; Dev. Eq. 429; 3 Eq. Dig. 451; Hopkins, 148 ; 2 John. Ch 204.
   The Chancellor.

I see no satisfactory ground on which this case can be made an exception to the general rule that an injunction will not be dissolved without the answer of all the defendants implicated.

Where a bill makes a case for an injunction, the injunction will not be dissolved until the material allegations of the bill are denied by answer. If the answering defendants are unable, from want of knowledge, to deny allegations of the bill which are material to its equity, the injunction is retained. It stands on the case made by the bill, and will be held until that case be overcome. That the only defendant who can answer such allegations is absent from the State is no ground of exception from the general rule. In this case, the answering defendants say, in reference to several such allegations, that they have no knowledge.

Motion denied.


source: Caselaw Access Project

author: The Chancellob.

license: Public Domain

text:
    Rogers, Ketchum & Grosvenor v. The New Jersey Insurance Company and William Stevens.
    P,. being indebted to E. K. & partners, gave thorn his note for the amount, dated June 28th, 1843, payable in ninety days, and, as collatteral security, executed and delivered, at the same time, to E. a power of attorney authorizing him, in the name of P., to sell, assign and transfer ten shares of stock of the New Jersey Insurance Company, standing in P.’s name, on which 8300 had been paid; and P., at the same time, delivered to K., for the partnership, a certificate of the said Company that there were then standing in P.’s name on the books of said Company ten shares of stock, transferable only on the books of the Company. The note was not paid. On the 14th of January, 1846, the said shares were sold, pursuant to previous advertisement, by the Sheriff of Essex county, on a judgment obtained by S. against P., and bought by S. at that sale, and wore transferred by the Sheriff to S. on the books of the Insurance Company. S. had notice of the facts before his purchase. On the 29th of August, 1840, ¡.he said power of attorney and certificate were presented to the Insurance Company, and they were requested to permit the transfer on their books of said shares to E., which they declined. Meld, that the complainants were entitled to relief.
    On the 14th of March, 1848, Thomas Rogers, Morris Ketehum and Jasper Grosvener, partners, &c,, exhibited their bill, stating, that Andrew Parsons, being indebted to them in §304.65, did, in order to secure the payment thereof, make and deliver to them his note, dated June 29th, 1843, for the payment to thorn of said sum in ninety days, for value received, without defalcation or discount, and, as a further security for the payment of the same, did, on the same’ day and year, execute-under his hand and seal and deliver to said Thomas Rogers, one of said firm, a power of attorney, bearing date tbe same day, constituting the said Thomas Rogers his attorney, for him and in his name and behalf to sell, assign and transfer ten shares in the capital stock of the “ New Jersey Insurance Company, at Newark, upon which §300 had been paid; and by the same power of attorney did authorize said Thomas Rogers to appoint one or more attorney or attornies under him, with like powers ; and at the same time the said Andrew handed over and delivered to the complainants a certificate of the said “The New Jersey Insurance Company,” marked No. 35, and dated May 8th, 1835, which certified that there were then standing in the name of the said Andrew Parsons, in the books of said Company, ten shares of capital stock, which were transferable only on the books of said Company, and which was signed by F. H. Smith, Secretary of said Company,3 and on which certificate there were endorsements signed by said F. H. Smith, acknowledging that he had received the first instalment of $5, and the second instalment of $26, on each share of said stock; by virtue of which power of attorney and delivery of certificate, the said Andrew Parsons was divested of all interest over said shares, and the same became vested in the complainants when said note became due and unpaid.
    That the said note was not paid when it became due, and still remains unpaid; and that Parsons has been for some time past and now insolvent, as complainants believe.
    That, by virtue of said power of attorney, the said Thomas Rogers did, on the 28th of August, 1846, execute, under his hand and seal, and deliver to A. O. Boylan, of Newark, a power of attorney, of that date, constituting said A. O. Boylan his attorney, for him and in the name of said Parsons to assign and transfer unto J; Mortimer Hall ten shares of the capital stock of said Company, upon which $300 had been paid, that were standing in the name of Andrew Parsons on the books of said Company, on the 8th of June, 1843, and also to collect and recover any dividend or dividends which may have been declared thereon and not paid to said Andrew Parsons; and that the transfer of said shares to he made to said Hall in pursuance of said power of attorney was to enure to and for the benefit of the complainants.
    That on the 29th of the same month of August, the said Boylan called at the office of the said Insurance Company, presented the said certificate and the said power of attorney to the said Secretary of said Company, and requested from him permission to transfer to said Hall in the name of said Parsons, by virtue of said power of attorney, the said ten shares, on the books of said company, and payment over to him, said Boylan, of any dividends which had been declared thereon and not paid to said Parsons ; to which request the said Secretary replied, that there was no stock standing in the name of said Parsons on the books of said Company, as the same had already been transferred by the Sheriff of Essex to William Stevens, and he refused to pay any dividend that had been declared upon the said stock.
    That the complainants have been informed and believe, that a suit was commenced some time since, they do not know when in particular, by said Stevens against said Parsons, in the Supreme Court; and that judgment was obtained therein; but when and for what sum the complainants are ignorant; and that execution was issued thereon to the sheriff of Essex, who levied on said ten shares of stock as the property of said Parsons. That said shares were advertised by said sheriff to he sold on the 14th of January, 1846, to satisfy said execution.
    That said Thomas Rogers, as soon as he was informed of said advertisement, caused a notice in writing to be given, on the 13th of January, 1846, to the said Sheriff of Essex, that the said stock so levied on by him was, by a power of attorney dated June 29th, 1843, duly executed by said Andrew Parsons to him said Thomas Rogers, assigned and transferred to him as collateral security for a note, dated on that day, given by said Parsons to Rogers, Ketehum & Grosvenor, for $304.66; and that the said stock was then held by him said Thomas Rogers for the purpose aforesaid : and also that at the sale of said ten shares made by said Sheriff, on the 14th of January, 1846, and before the samo were sold, he caused the contents of said notice to ho publicly made known among the bidders at the said salo and other persons present thereat. That William Stevens became the purchaser at said Sheriff’s sale of said ten shares, then standing in the name of said Parsons on the books of said Company, for $20 a share; and that, at the time of said purchase, and some time prior thereto, the said Stevens, as the complainants have been informed and believe, well knew of the existence of the power of attorney given as aforesaid by said Parsons to said Thomas Rogers, and that said Stevens indemnified the said Sheriff previous to said sale, for his proceeding thereon.
    That the complainants are informed and believe that the said ten shares were, after said sale, transferred by said Sheriff to said Stevens on the books of said Company, the said Company well knowing at the time of said transfer of the existence of said power of attorney so given for the purpose aforesaid hy said Parsons to said Thomas Rogers.
    That Silas D. Canfield, of Paterson, by virtue of a power of attorney, dated January 29th, 1846, given to him by said Thomas Rogers, for the transfer of said ten shares, applied to the Secretary of said Company, at the office of said Company on tiie same day and á day or two thereafter, to permit him to transfer said ten shares on the books of the Company to and for the uso and benefit of the complainants, he the said Canfield at the same time exhibiting the last mentioned power of attorney and the above mentioned certificate of stock to 'the said Secretary; which he refused to do; and that this application was made previous to the said transfer of said shares to said Stevens, as the complainants have understood and believe and therefore charge.
    That the said Thomas Rogers acted in the above transaction as agent for and in behalf of said firm of Rogers, Ketchum & Grosvenor; and that said power of attorney so given by Parsons to Thomas Rogers was given as collateral security for the payment of said note of $804.66, and was made for the benefit of said firm.
    The bill prays, that the said Company may be decreed to permit the said ten shares to be transferred by said A. O. Boylan on the books of said Company, by virtue of said powers of attorney or to permit said Thomas Rogers, by virtue of said power of attorney given to him by Parsons, to transfer said shares, on the books of the Company, to the complainants; or that said Stevens may be decreed to transfer the same to them. And that, in the mean time, the said Company may be enjoined from permitting said shares to be transferred on the books of the Company, and from paying any dividend to be declared thereon; and that said Stevens may, in like manner, be injoined from transferring the same; and for such other and further relief, &c.
    William Stevens put in his separate answer. He says, that, at the time of the Sheriff’s levy on said stock, the Sheriff was informed there was no lien on said stock, but the same was the property of said Parsons, no notice having been given of any assignmenfc or transfer; nor did this defendant, at the time said, levy was made, know or had he heard of any person having a claim on said stock except said Parsons, who had always to that time drawn the dividends declared semi-annually on said stock, without his or any other person’s having given notice of any transfer thereof.
    He says, that, after he became the purchaser at said Sheriff’s sale, the said shares were assigned to him by the said Sheriff on the books of the Company.
    He admits that at the sale a notice vías given, on the part of the complainants or some other person, that said shares had been, pledged or a power of attorney given to transfer the same to the complainants or some other person or persons; and that ho purchased said stock after such notice had been given; but he says, that by the charter of said Company the stock is to be transferred only according to such rules or by-laws, and in such manner, as shall be ©ade by the directors for the purpose; and that, by a by-law of said Company, the stock is transferrable only on the books of the Company; and the certificate of stock issued by the Company to said Parsons contains a notice that the stock was transferrable only on the books of the Company, of which fact the said P-arsons and the complainants and said Thomas Rogers had notice.
    The answer of the Company is in substance the same.
    Depositions were taken, and the cause was brought to hearing on the pleadings and evidence.

      A. S. Pennington, for the complainants,
    cited 8 East. 476; Bingham on Execution, 112; 11 Wennd. 628; 2 Sandford’s Ch. 9; 20 Wend. 9; 22 Ib. 348.

      L. C. Grover for the defendants.
   The Chancellob.

The facts show that there was, at least, an equitable hypothecation of the ten shares of stock to secure the payment of the note.

And it is shown that the purchaser of the shares at the Sheriff’s sale, under his judgment and execution at law, had notice of the hypothecation before the sale. The complainants are entitled to relief.

Decree for complainants.


text:
    Cummins v. Cummins.
    After injunction granted, the defendant died; and the oomplainant had not revived the suit. The proper mode of proceeding is by order that complainant revive within a specified time after service of the order or that the injunction be dissolved.
    After injunction granted, the defendant died, and the suit hard not been revived by the complainant.

      P. D. Vroom for defendant.
    He cited 2 Cox Ch. Ca. 50; 4 Paige, 104.
   The Court said the proper mode of proceeding on the part of the defendant would bo, to take an order that the complainant revive, within a specified time after service of a copy of the order, or that the injunction be dissolved."

Order accordingly.


author: The Chancellor.

text:
    Anonymous.
    On a bill filed by a second mortgagee, making a prior mortgagee a party defendant, tbe prior mortgagee put in an answer, setting forth|his mortgage, and asking a decree &c. Thejmortgagor paid the complainant, and the complainant stopped in his proceedings, and a term had been lost. A motion, in behalf of the prior mortgagee, that the complainant’s bill be dismissed with costs was denied, an the ground that, by one af the rules of the Court, he could proceed with the cause in the name of the complainant.
    A second mortgagee had filed a bill .on his mortgage, making the prior mortgagee a party defendant; who put in an answer, setting forth his mortgage, and asking a decree &c.
    The mortgagor paid the complainant the amount of his mortgage ; and the complainant stopped in his proceedings, and a term had been lost.

      F. B. Chetwood moved,
    on behalf of the prior morgagee, that the complainant’s bill be dismissed with costs.
   The Chancellor.

The motion is denied on the ground that, by one of the rules of the Court, the prior mortgagee can proceed with the cause in the name of the complainant; and it is more in accordance with the spirit of that rule that he should so proceed, than that the complainant should be subjected to costs on dismissal, and the costs of a new bill be incurred.

Perhaps a dismissal without costs might be allowed. But the counsel for the prior mortgagee apprises the Court that he intends to proceed by a new bill, and asks costs on dismissal. He is at liberty to proceed with the cause as it stands, in the name of complainant. There is no reason why he should not do so, except that of getting costs on the dismissal and the making a full new bill of costs.

Mr. Chetwood waived his motion and took an order under the rule.


text:
    Phebe Vanderveer v. Peter J. Stryker and Henry Vanderveer
    A judgment was recorded in the Circuit Court of the United Slates for the district of liew Jersey, on the 13th of August. 1S36, against S. and V., for $30,000, on which a Jr. fa. de Ion. ei ter. was issued to the Marshal, and levied on personal and real property of S. On the 1st of April, 1838, the judgment was revived by sd. fa., and on the 1st of April, 1840, a ft. fa. was issued, and levied on goods and lands of S. and V. Under this last fi. fa. the Marshal sold a house and lot of S., for $200. In Juno, 1841, the judgment and execution were assigned to the complainant, in June, 1847, the complainant filed a bill, stating that S. and Y. had equitable interests which he was unable to discover and reach by execution at law, specifying some equitable interests of S., and containing the usual allegations of a creditor’s bill; and praying a discovery, and payment of the residue of the judgment out of what should be discovered, and an injunction and receiver.
    Held: That a creditor by judgment in said Circuit Court, or an assignee of such creditor could exhibit such a bill.
    That so far as the bill seeks to subject- an equitable interest of the defendants in real estate to the payment of the judgment the previous issuing of an execution was not necessary.
    On demurrer to the whole bill, if tho bill be good in part tho demurrer will bo overruled.
    On tho 23d of June, I84Y, Phebe Vanderveer filed her bill, staling, that, on or about August 13th, 1836, Goold Hoyt, Russel H. Novins and Elisha Townsend, surviving obligees of Stephen Hoyt, obtained a judgment in the Circuit Court of the United States for the district of New Jersey, against Peter I. Stryker and Henry Vanderveer, for $30,000 of debt and $2T.82 costs. That on the 14th of August, 1836, a fi.fa. de bonis el terris was issued against Stryker and Vanderveer on the said judgment, directed to the Marshall of tho said district, returnable to the 5th of October, 1836; which writ was delivered to the said Marshal on tho 15th of August, 1836.
    That, by virtue of the said writ, the said Marshal, on the 24th of September, 1886, levied on tho following property of tho said P éter I. Stryker, to wit: one pair of horses, one wagon, a gig, one sulky, three cows, one yoke of oxen, one cart, two tables, two beds, one dozen chairs, two carpets, one mantel clock, and a lot of furniture. Also on the following real estate of the said defendant Peter I. Stryker: one house and lot about 60 feet front by 200 in depth, now in possession of Mrs. Vroom, situate on the main street in Somerville; a house and lot, supposed to be 40 feet by 200 feet, on Main street in Somerville, now in possession of G. Williamson; a house and lot in Somerville, about 35 feet by 200, in possession of I. Horton; a lot of land, 60 by 200 or thereabouts, on the main street in Somerville, on which the said defendant is erecting a brick house; subject to prior legal claims and incumbrances ; value one dollar.
    That on or about April 1st, 1848, the said Hoyt, Nevins & Townsend caused the said judgment to be revived by scire facias ; and, on or about April 1st, 1840, caused afi.fa. de lonis et terris to be issued and-delivered to the said Marshal, against the goods and chattels, lands and tenements of the said Peter I. Stryker and Henry Vanderveer within his district, for the said debts and costs, and also for the further sum of $29.61, the costs of the proceedings on the scire facias ; which last fieri facias was returnable the first Tuesday of October, 1840. And the said Marshal, on that day, made return that by virtue of said writ he had taken and levied on goods and chattels, lands and tenements of the said Stryker and Vanderveer,. of the value of $5, which remained unsold. Therefore the said Marshal was commanded, that he expose for sale the goods and chattels, lands and tenements of the said Stryker and Vanderveer by him taken and levied upon-, and have the moneys &c., on the first Tuesday of April then next, to render &c.; and if not sufficient &e., then to make the residue from the lands and tenements whereof said Stryker and Vanderveer were seized on the 1st of April, 1838, or at any time after.
    That, by virtue of the said last mentioned fi-fa.f the said Marshal advertised and sold a certain house and lot of land of the said Peter I. Stryker in the village of Somerville, for $200; and that the balance of the said judgment, after deducting therefrom the said $200, is still due and unsatisfied.
    That, on or about June 15th, 1841, the said Hoyt, Nevins & Townsend, for a valuable consideration to them paid by the complainant, assigned to the complainant the said judgment and execution against the said Stryker and Vanderveer. That the said judgment still remains in full force and effect.
    That the complainant has reason to believe, and does believe, that the said Peter I. Stryker and Henry Vanderveer have equitable interests, things in action or other property, of the value of $100 and more, exclusive of all prior just claims thereon, which the complainant has been unable to discover and reach by execution on the said judgment.
    That she has been informed and believes, that the said Peter I. Stryker owned a number of shares of stock in the Washington Mining Company, and also in the Bridgewater Mining Co. or Bridgewater Mines, or has some interest or equitable right in said Companies or mines, or in one of them.
    That she has been informed and believes, that the said Peter 1. Stryker has some equitable interest in fifteen acres of land, situate in the township of Bridgewater, county of Somerset, and adjoining lands belonging to the Bridgewater and Washington Mining Companies’ land, John Herder’s land and the lands of John Polhemus and Cornelius Vanderveer, or adjoining the lands of some of them.
    That she is informed and believes, that the said Peter I. Stryker holds a bond and mortgage against one James W. Southard, for $4,000 or some other large sum, dated on or about May 14th, 1832, which is due and unpaid, and which the said Peter Í. Stryker is entitled to receive from the said Southard.
    That she is informed and believes, that the shid Peter I Stryker is the holder and owner of a prommissory note for $666.66, made by one John F. Brown, payable to said Peter I. Stryker, which is duo and unpaid.
    That she is informed and believes, that William C. Morris, Esq., of Belvidere, son-in-law of said Peter I. Stryker, holds in his hands the title to certain real estate in which the said Peter I. Stryker has some equitable interest, or other interest unknown to your orator. And that one John B. Camman, for the consideration of $6,500, conveyed to the said William C. Morris about 35 acres of land situate in said township of Bridgewater, the consideration of which was paid, in whole or in part, by the said Peter I. Stryker, and which said tract actually belongs to the said Peter I. Stryker, or in which he has some equitable interest.
    That she is informed and believes, that the said Peter I. Stryker entered into some contract or agreement with one Cornelius Waldron, of Middlesex, to purchase of him a certain tract of land i and that said Stryker paid to said Waldron $1000, or some other large sum, for or on account of the said purchase ; and that said Cornelius Waldron still holds the title to said land in trust for the said Peter I. Stryker, or in some other way, and that the said Peter I. Stryker, since the said purchase and payment as aforesaid, has commenced building a house on said land.
    That she is informed and believes, that said Peter I. Stryker is the owner of a number of shares of stock in the Newark Banking and Insurance Company, or in the Trenton Banking Company, or some other Banking Company.
    The complainant states, that said Stryker has some claim or demand, equitable or otherwise, against one Augustus F. Car-man, and that said A. F. Carman is indebted to said Stryker in some large sum of money. And that said Stryker owns or has some equitable or other interest in some furniture or personal property in the possession of the said Augustus F. Carman.
    That, as the complainant is informed and believes to be true, ■ the said Peter I. Stryker has a considerable amount of money deposited in or due from certain banks whose names are unknown to the complainant; and, also, that the said Stryker has a considerable amount of legal or equitable debts, claims or demands due to him, said Stryker, from different persons whose names are unknown to the complainant, consisting of books of account, due bills, drafts, checks, prommissory notes, bonds, mortgages, judgments or other securities or things in action, or that said Stryker has money or other personal property, either in possession or held in trust for him, the situation, value and particulars of which are unknown to the complainant. And that the complainplainant is fearful that said Stryker will make way with or place the same beyond the control of this Court or of a court of law.
    That the bill of complainant is not exhibited by collusion with said Stryker, or for the purpose of protecting his property or anjr part thereof against the claims of any other creditors ; but for the sole purpose of compelling payment of the money due upon the aforesaid judgment.
    That the complainant has reason to believe, and therefore charges, that said Stryker, at the time of the rendition of the said judgment, possessed, owned or had, or now possesses, owns or has some interest in some real estate, or chattels real, or in some personal property, in possession, reversion or remainder, or that he has some interest in some lease or leases, mortgage or mortgages, lien or lions on land, or leasehold estate of some name or kind; or that said Stryker is possessed of or entitled to some stock, public or private, in some hank or government fund, insurance company, mining company, or some other company or companies, chartered or unchartered ; or that he is partner or otherwise interested with some other person or persons in some business r partnership; or is interested in some property or thing or things in possession or action, of some kind,jin the stock of some hank or company in the city of Newark or some other place, hut of what place in particular the complainant is ignorant, and prays a full disclosure and discovery in the premises from the said Peter I. Stryker of all the particulars thereof.
    That the complainant believes and charges, that the said Peter I. Stryker had or owned, or now has or owns, some debt or debts due or owning to him from some person or persons in the U nitod States or elsewhere, or that he is interested in some demand or demands, claim or claims of some name or kind, on one or more person or persons, company or companies, government or governments, or that he is interested in some bills of exchange, prommissory note or notes, check or checks, certificate or certificates of stock or contract for the sale or purchase of stock, bond or bonds of some name or kind, or has some money or hank notes, or hills or notes of some kind or other which are intended to pass as money, hut of which, in particular, the complainant is ignorant: and prays from said Peter 1. Stryker a full disclosure and discovery in the premises of all the particulars thereof; or that there is or arc one or moro person or persons, unknown to the complainant, who hold some real or personal estate or property, or interest therein or something in action, in trust for the said Peter I. Stryker or for his benefit, or from some other person, by devise, grant, assignment, or in some other manner, of the particulars of which the complainant is ignorant; and prays from the said Peter I. Stryker a full disclosure and discovery in the premises.
    The bill prays a discovery of all the estate of every description, goods, chattels, money, stock, &c., &c., of the said defendants Peter I. Stryker and Henry Vanderveer, as well at the time of the rendition of the said judgment as until and at the filing of their answer, whether standing in their names, or that of either of them, or in the name of any other person or persons for or intrust for. them or either of them, either express or implied; and what disposition has been made of each of the same, and when, fully and particularly, and the amount and value of each of them, and the names and places of residence of the debtors, respectively, and the evidence of their indebtedness, and how much is due on each of the said demands, and which of them are good and collectable, and which are doubtful, and which are bad, and who has the custody or control of the said moneys, goods and chattels, book accounts, due bills, prommissory notes, bonds, mortgages, judgments, and other choses in action. And particularly whether the said Peter I. Stryker does not own, &c., &c., (as stated in the bill).
    And that a receiver of the money, property and things in action of the said Peter I. Stryker may be appointed; and that said Peter I. Stryker may be directed to assign, transfer and deliver to the receiver, upon oath, under the direction of a Master, all property, equitable interests, things in action, money and effects belonging to the said Peter I. Stryker, and all books and papers relating thereto, and evidences thereof, so that the complainant may have satisfaction of the sum due to her on the said judgment. And that tho said Peter I. Stryker may be injoined from collecting, receiving, selling, transferring, assigning, delivering or in any way using, controlling or interfering with, or disposing of, any debts or demands due to the said Peter I. Stryker, or any goods, wares, merchandise, account books, bills, drafts, checks, money, stocks, prommissory notes, bonds, mortgages, judgments, or other securities, things in action, property or effects, belonging to the said Peter I. Stryker, whether in his own name or hand, or in the name or lands of or hold by any person or persons for his use or benefit, or in trust for him, express or implied, until the further order of this Court. And that the said Peter I. Stryker may be injoined from confessing any judgment for the purpose of giving any other creditor a preference over the complainant, and from doing any other act to enable other creditors to obtain the property of the said Peter 1. Stryker which the complainant is unable to reach by execution; and for further relief.
    On the reading and filing of this bill an injunction was ordered, restraining Peter I. Stryker from selling, assigning or disposing of any debts due him, or any account books, bills, &c., &c., or other securities or things in action belonging to him, whether in his own name or hands or in the name or hands of or held by any other person or persons for his use or benefit, or in trust for him express or implied; and from confessing any judgment for the purpose of giving any other creditor a preference over the complainant, and from doing any other act to enable other creditors to obtain the property of said Stryker which the complainant is unable to reach by execution, until the further order of the Court.
    On the 21st of September, 1847, Peter I. Stryker put in a demurrer to the bill; showing for causes of demurrer, that it appears by the bill, that it is exhibited by the complainant against this defendant and Henry Vanderveer, under the act entitled iC A supplement toan act respecting the Court of Chancery,” to compel a discovery of property to satisfy a certain judgment in the said bill specified, being a judgment obtained by Goold Hoyt, Russell 11. Nevins and Elihu Townsend, against this defendant and said Henry Vanderveer, in the third Circuit of the United States for the district of Now Jersey ; and the complainant has no legal or equitable right to come into this Court under the said act, to compel a discovery and satisfaction of the said judgment. That the judgments referred to in the said act are judgments in the State Courts, and not judgments in the Federal Courts or any of them.

      That it appears by the bill, that Goold Hoyt, Russell H. Ncvins and Elihu Townsend were the plaintiffs in the said judgment and execution, satisfaction whereof is sought to be compelled by said bill, and that said complainant was not the plaintiff in said judgment or execution; and this defendant submits, that the complainant has no legal or equitable right to the discovery or relief prayed for in said bill.
    That it appears by the bill, that the personal and real estate of said Henry Vanderveer, the co-defendant in said judg- and execution, was levied on by the Marshal; and it is not alleged in said bill, nor does it appear, that such real or personal estate has been sold or in any way applied to the satisfaction of said judgment and execution; nor does it appear, or is it alleged, that the legal remedy of the plaintiffs in said judgment or execution, or of the said complainant has been exhausted.
    He also demurs to so much of the said bill as seeks a discovcovery of this defendant of any lands or real estate of this defendant for the purpose of satisfying the said judgment and execution.
    And the general cause of demurrer, that the bill shows no sufficient matter of equity to entitle the complainant to the relief sought by her bill against this defendant.

      F. T. Frelinghuysen and P. D. Vroom in support of the demurrer.
    They cited Wagram’s Law of Discovery, 5; 3 John. Ch. 47; 2 Paige, 599; 2 Mason, 472; 1 Edw. Ch. 509; Saxt. Ch. 307; 4 Paige, 315.

      W. Daisied contra.
    He cited 17 Conn. Rep. 283; 5 Cowen, 580; Cooper’s Pl. 148, 9; 3 Atk. 200, 352; 4 John. Ch. 671 ; 5 Gill & John. 19; 10 Yerger, 310; 10 Paige, 601; 1 Ib. 637; 20 John. Rep. 554; 2 Story’s Eq. sec. 2116 b; 1 Barb. Ch. 589.
   The Chancellor.

On the 13th of August 1836, Hoyt, Nevins & Townsend recovered a judgment in the Circuit Court of the United States for the district of New Jersey, against Peter I. Stryker and Henry Vandeveer, for $30,000 debt and $27.82 costs, on which &$. fa. de bonis ei lerris was issued to the Marshal of the district, returnable the 5th of October, 183G, by virtue of which the Marshal, on the 24th of September, 1836, levied on certain personal and real property of the said Peter 1. Stryker, (particularly mentioned in the levy,) subject to prior legal claims and incumbrances ; value $1.

On the 1st of April, 1888, the said judgment was removed by sci.fa. and on tho 1st of April, 1840, &Ji. fa. was issued to the Marshal, against the goods and chattels, lands and tenements of said Stryker and Vanderveer, returnable tho first Tuesday of October 1840 : and the Marshal, on that day, made return that he had levied on goods and chattels, lands and tenements of said Stryker and Vanderveer, of tho value of $5, which remained unsold.

By virtue of the last mentioned fl.fa. the Marshal sold a certain house and lot of Stryker for *200 5 and tlie balance of said judgment remains unpaid.

On the 15th of June, 1841, Hoyt, Nevius & Townsend assigned the said judgment and execution to Phebo Vanderveer.

On tho 23d of June, 1847, Phebo Vanderveer filed her bill in the Court of Chancery of New Jersey, stating, that Stryker and Vanderveer have equitable interests which she has been unable to discover and reach by execution on the said judgment; alleging that Stryker owns stock in difficult companies, naming them; that he has an equitable interest in fifteen acres of land, describing it; that he holds a bond and mortgage, describing it; that he holds' a prommissory note, describing it; that his son-in-law, naming him, hold the title to certain real estate in winch Stryker has some equitable or other interest, That one John B. Carman, for the consideration of $6,500, conveyed to the said son-in-law of Stryker about thirty-five acres of land in Bridgewater, Somerset, tho consideration of which was paid, in whole or in part, by Stryker, and which belongs to Stryker, or in which he has some equitable interest. That Stryker entered into an agreement with one Cornelius Waldron to purchase of him a certain tract of land, and paid to Waldron $1,000 or some other large sum on said purchase, and that said Waldron still holds the title to said land in trust for said Stryker or in some other way, and that Stryker, since the said purchase and payment, has commenced building a house on said land. That Stryker has some claim or demand, equitable or otherwise, against one Augustus F. Carman; and that said Carman is indebted to Stryker in some large sum of money, and that Stryker owns or has some interest in some furniture or personal property in the possession of said Carman.

The residue of the bill is in the usual form of a creditor’s hill; and the hill prays a discovery, and payment of the judgment out of what shall he discovered; and an injunction and receiver.

A demurrer was filed to the bill. The grounds of demurrer are,

1st, That it appears by the bill that it is exhibited under the act of the Legislature of New Jersey, entitled (C A supplement to an act respecting the Court of Chancery,” to compel a discovery of property to satisfy a'judgment obtained in the Circuit Court of the United States for the district of New Jersey, and that the complainant has no right to come into this Court under the said act to compel a discovery and satisfaction of the said judgment; that the judgments referred to in the said act arc judgments in-the State Courts, and not judgments in the Federal Courts or any of them.

This ground of demurrer involves two propositions : 1st, That the bill is filed entirely and exclusively under the said supplement; and, 2d, That no bill can be filed under the said supplement to compel a discovery of property and satisfaction of a judgment obtained in the Circuit Court of the United States for the district of New Jersey.

Is this bill founded exclusively on the said supplement ? Does it not furnish ground for relief in this Court independent of that supplement, on principles settled prior to the passage of the supplement 1 If it does; if it furnishes ground on which this Court could give any measure or kind of relief independent of the supplement to a creditor who had obtained a judgment in one of the Courts of this State, the only question would be, whether this Court would not furnish the same relief to a creditor who had obtained a judgment in the District Court of the United States for the district of New Jersey. If without, and prior to the supploment, this Court could furnish any relief to the complainant on tho case made by this bill, or any part of it, if his judgment had been obtained in a Court of this State, is the fact that the judgment was obtained in tho Circuit Court of the United States for the district of New Jersey any reason for denying the same relief! I think not. A judgment in tho District Court of the United States for Now Jersey is as satisfactory evidence of the existence of a debt as the judgment of our Supreme Court; and an execution issued from the District Court has the same power and territorial extent as an execution from our Supremo Court; and if an execution from that Court fails to yield to the plaintiff his judgment debt, it is as entire a failure as if his execution had issued from our Supreme Court. The ground of relief in this Court is, that the complainant has obtained an execution at law upon which any property in this State, tangible or that can be reached by execution at law, might be reached and made available; that the defendant has no property which can be reached by execution at law, but that he has property which a Court of equity will subject to the payment of tho judgment and execution. The first ground of demurrer is not well taken.

So far as this bill seeks to subject an equitable interest of tho defendants or either of them, in real estate to the satisfaction of the judgment, the previous issuing of an execution ivas not necessary.

To this extent the jurisdiction of the Court of Chancery has long been well established. No statute was necessary to give this jurisdiction; and I do not understand our Supplement (of March 20th, 1816,) to the Act respecting tho Court of Chancery as affecting this jurisdiction. It would be a reproach to our system of equity jurisprudence to suppose that real estate, the title of which a debtor might procure to have vested in another person for his use, could not be reached in Chancery by a creditor.

I think, also, that the jurisdiction of this Court was well established before the Supplement to a further extent; that is to say, to the extent of reaching tangible personal property that might be seized on execution which was held by another for the use and benefit of the debtor. All such holding of any kind of property of a nature to be seized on execution, real or personal, by one man for the rise of another, so soon as it operates to defeat or obstruct a creditor from reaching it at law, becomes a fraud upon the creditor; and I am not aware that any equity Judge has ever assented to the idea that a debtor could place property, real or personal, which, if the title or possession was in him, would be subject to be seized on execution, in the name or possession of another for his use, and thus avoid the payment of his debts while he is enjoying the property; or has ever refused the aid of a Court of Chancery to enable the creditor to reach such property. But in reference to personal property of the kind stated the Court of Chancery would not interfere until after an execution at law had been issued upon the judgment.

For the purposes of the present case it is not necessary for the Court to affirm the last stated proposition. It is sufficient to say that the bill in this case, so far as it seeks to subject to the payment of the judgment the lands mentioned in the bill, and in which the complainant is therein stated to have an equitable interest, is good independent of the supplement, and not demurrable ; and that the issuing of an exeeution was not necessary to give the Court jurisdiction to this extent. And, in reference to this part of the case, a judgment in the Circuit Court of the United States for the district of New Jersey is as good a foundation on which to ask the aid of this Court as a judgment in the Supreme Court of New Jersey. And an assignee of the judgment may come here to ask this measure of relief.

This disposes of the fourth ground of demurrer; which is to-so much of the bill as seeks a discovery of any lands or real estate of the defendant for the purpose of satisfying the judgment. This ground of demurrer is not well taken.

•• All the other grounds of demurrer are to the whole bill. And, on the ground that where the demurrer is to the whole bill, and the bill is good in part, and therefore the demurrer bad in part, the' demurrer must be overruled, the demurrer in this case must be overruled.

But the Court might give leave to the defendant to demur to so much of the bill as is or may be held to be founded on the said supplement. And I am, therefore, willing to apprise counsel of my present impression as to so much of the bill as seeks the discovery of such property or things in action as fall within the language of the supplement.

I do not understand that, before the enactment of this supplement, a bill was ever entertained in this Court in behalf an execution creditor, to compel the debtor to discover his bonds and notes and debts duo him, and other things in action, and the money in his pocket, for the purpose of obtaining a decree of satisfaction out of any such property. And the fact that our Legislature have recently enacted a law authorizing such a bill is a sufficient admonition to the Court not to enter at this day upon the exercise of such a jurisdiction on general principles of equity independent of the supplement.

In reference to this part of the case, my impression is, that this bill must be taken to be a bill founded on the supplement, and that the complainant has not pursued her remedy at law in the manner and to the extent required by the supplement. The execution is not returned unsatisfied. Property has been levied upon which has not been sold. No part of the property of one of the defendants, levied upon, has been sold; and no reason is stated in the bill why the property of that defendant has not been or should not be sold. It does not appear that this defendant was a surety for Stryker.

Demurrer overruled.


author: The Chancello».

text:
    Barnabas T. Mulford and Wife and Theodore Todd v. John Runk and Wife, Richard Tenyck and Wife, and others.
    She bill stated, that W. T., deceased, had become liable as security for bis son for several debts, and that judgments had been obtained against him therefor; and that all his estate, real and personal, was sold, at Sheriff’s sale, by virtue of executions issued on the said judgments, and was all purchased at said sale by J. R. and R. T., his sons-in-law. That the personal property so sold was of the value of §1,500, and was sold for $315 78. That the real estate so sold was of the value of $6,000, and was sold for $2,300. That W. T. was averse to letting his property be sold on execution; but that J. R. and R. T. induced him to permit it, by telling him that the only way to defend himself against other claims arising on endorsements Sbr his son, on which suits had been commenced, was, to allow his property to bo sold at Sheriff’s sale. That 17. T. consented to let his property be thus placed in the custody of J. R. and R. T., for the purpose of paying the judgments which had been obtained, and of protecting the property from the said claims on which suits had been commenced, and on the further condition that said 17. T. should have his support out of the farm, and that, on his death, the farm should be sold, and the proceeds divided according to his will. That a written agreement was entered into by J. R. and R. T., stipulating with the said 17. T. for the performance of the said terms and conditions; and that the said written agreement had been, since the Sheriif’s sale, either lost, or fraudulently taken by J. R. and R. T. from the possession of said 17. T.
    . The bill was exhibited by two of the children of 77. T., deceased, praying performance of the alleged agreement.
    The answer denied the alleged agreement, and there was no sufficient proof of it.

      Semble, That such au agreement is not eutitlel to favorable consideration.
    On the 24th September, 1846, Barnabas T. Mulford and Margaret Ann, his wife, and Theodore Todd, exhibited their bill, stating, that William Todd, late of Somerset county, previous to April 1, 1841, was seized and possessed of certain tracts of land described in the bill. That the said William Todd was, in his lifetime, and at the time of the Sheriff’s sale after mentioned in the bill, possessed of a large amount of personal property, consisting of household furniture, farming utensils, stock on farm, corn, wheat and rye, and cattle, sheep and hogs, and, among other live stock, was possessed of nine cows, six horses, three hogs and six sheep ; which said live stock, alone, the complainant believes and charges, was worth more than the sum of §•315 75, the proceeds of the sale of the whole of the personal property of the said William Todd at the said Sheriff’s sale after mentioned in the hill. That the whole of the personal property of the said William Todd sold at said Sheriff’s sale could net have been of less value than §1,500.
    That, some time previous to the year 1843, the said William Todd became security for his son James W. Todd, by endorsing his notes and otherwise assuming responsibilities for him. That, on or about November 9, 1841, one Stephen Brown recovered a judgment, in the Supi’eme Court, against James W. Todd and the said William Todd and John Cox and others, for a debt of the said James W. Todd, for the sum of §1,330 40 and §38 25 costs. That one Henry Blackwell recovered a judgment, in the Circuit Court of Somerset, against said J. W. Todd and Wm„ Todd, on the 14th of June, 1842, for §564 16 damages and •‘136 91 costs, for a debt of the said J. W. Todd. That one Jonathan Potter recovered a judgment, in the Supreme Court,, on or about April 4,1843, for §519 82 debt and |5 costs. That one Nicholas Arrowsmith, on or about April 4, 1843, recovered a judgment, in the Supreme Court, against said Wm. Todd for §555 debt and §5 costs, for a debt of the said J. W. Todd.
    That, by virtue of the above stated judgments and the executions thereon, David T. Talmagc, Sheriff of Somerset, levied upon all the personal property of the said William Todd, and also upon all the real estate of the said William Todd in the county of Somerset 3 and advertised all the personal estate of the said William Todd for sale on the 14th of April, 1848; and on that day sold all the personal property of the said William Todd at public vendue, (consisting of the articles and property mentioned in Schedule A. annexed to the bill,) all of which property, with the exception of one bay mare sold for §9 50, was struck off to John Hunk or to Richard Tcnyck 3 and the whole amount of the sales of the said personal property was only §315 78.
    That the said Sheriff advertised the real estate of the said William Todd in Somerset for sale on the 19fch June, 1848, and on that clay sold the same for §2,000 ; and the said John Runlr and Richard Tcnyck became the purchasers thereof.
    That the real estate of the said William Todd in Somerset, at the time of the said sale, was worth $6,000, and his 'personal estate about $1,500 ; and that the said William Todd was desirous of raising the money and paying off the said judgments, and was very reluctant to have his said property exposed to public sale by the Sheriff. But that John Runk, who married Mary, a daughter of the said William Todd, and Richard Tenyck, who married Jane, another daughter of said William, Todd, urged and solicited the said William Todd to consent to let his property be sold by the Sheriff at public vendue ; but that the said William Todd at first wholly refused so to do; but, after repeated solicitations from the said J. Runk and R. Tenyck, and their telling him that there were several unjust claims held against him by persons in New York, arising upon notes given by said J. W. Todd and endorsed, or pretended to have been endorsed, by the said William Todd; and that the only way to defend himself against those unjust claims was to allow his property to be sold at public sale by the Sheriff. And the said Wm. Todd, having been at that time also prosecuted on two other notes of $500 each, drawn by the said J. W. Todd and endorsed or purporting to be endorsed by the said Wm. Todd, he the said Wm. Todd being an infirm and deaf old man, and but little acquainted with law business, reluctantly consented to let his property be placed in the charge and custody of the said J. Runk and R. Tenyck for the purpose of paying the judgments above stated, and also for the purpose of protecting the said property from unjust claims for which suits had been commenced against him; and upon the further condition that the said Wm. Todd should have his support out of the farm, and that at his death the farm should be sold and equally divided among the legatees named in the will of the said Wm. Todd, after the children had been put on an equal footing by deducting previous advancements.
    That the said J. Runk and R. Tenyck agreed to the said condition and arrangement, and, for the purpose of more effectually binding themselves to the performance of the said agreement, a written agreement was entered between the said J. Runk and R. Tenyck, of the one part, and the said Wm. Todd, of the other part, which embodied, in substance, the agreement above stated, and which, said writing was drawn by J. M. Mann, Esq., and was duly executed by the said parties and delivered to the said ’Wm. Todd. That, at the time of the delivery of the said written agreement to the said Wm. Todd, the said J. M. Mann remarked that he should take good care of that paper. That, some days after the said paper writing had been delivered to the said Wm. Todd, the said J. Runk and R. Tenyck came to the house of the said Wm. Todd, and wanted to examine the old deeds for the farm ; and the papers relating to the farm were brought out and laid on the table, and the paper writing and agreement above mentioned was also laid on the table with the rest of the papers. That, some weeks after this transaction, the said Wm. Todd wanted to see the said paper writing; and he searched among all his papers and could not find it; and that said Wm. Todd repeatedly after that time searched for said written agreement, but could not find it, and never saw the same after the day when it was laid on the table with the deeds which the said J. Runk and R. Tenyck wished to seo. And the complainants believe and charge, that the said written agreement was either taken away by the said J. Runk or R. Tenyck, or that the same is lost.
    That, in pursuance of the said agreement with the said J. Runk and R. Tenyck, the said Wm. Todd confessed a judgment to the said J. Runk and R. Tenyck, in the Common Pleas of Morris county, on the 3d of July, 1843, for $238 12 of debt (the same being double the amount actually due,) and 04 costs. By virtue of which said judgment and the execution issued thereon, the Sheriff of Morris, J. M. DcCamp, levied upon and sold, at pub - lie sale, the tract of land and premises before described as situate in the township of Washington, in the county of Morris, and the same was struck off to the said J. Runk and R. Tenyck, for *100. That the said last mentioned tract of land and premises, at the time the same was so sold, was worth §450.
    That the reason why the said personal and real property of the said Wm. Todd was permitted to be sold at prices so much below its real value was, that the said Wm. Todd relied upon the said agreement so entered into with the said J. Runk and R. Tenyck, as aforesaid, and his confident expectation that the said J. Runk and R. Tenyck would hold the said property of the said Wm. Todd purchased by them at Sheriff’s sale upon the trusts and conditions in the said agreement mentioned, or that they would re-sell the said personal property, and apply the proceeds of such re-sale to the payment of the said Wm. Todd’s debts, as they promised to do.
    That on or about June 9, 1843, the said William Todd duly made, executed and published his last will and testament, in the presence of three witnesses, so as to pass real estate, and therein and thereby did devise and bequeath as follows, to wit:
    1st. u I bequeath to my executors, and the survivor of them, their executors and administrators, $1200, in trust, nevertheless, to place the same at interest on clear freehold estate, and to pay the interest thereof coming due annually to my daughter Margaret Ann, now the wife of Barnabas T. Mulford, during her life; and, in case of her personal necessities requiring, my executors or the survivor of them as aforesaid may give, according to their discretion, from time to time, a portion of the principal to her or to her order, and should she, at her death, have any children, then it is my will that any part which may remain in my executor’s hands, or the survivor of them, unexpended, shall be equally divided between her children, share and share alike.

      <c 2d. I give and bequeath to my youngest son, Theodore, the sum of $2,000, to be paid to him in one year after my decease, or as soon as my property can be turned into cash, and whatever sum of money he may owe me to be deducted out of the said $2,000.

      “ 3d. It is my will, and I do hereby order and direct, that, as soon after my decease as may be convenient, all my estate, both real and personal, which I may own at my decease, shall be sold by my executors hereinafter named, either at public or private sale, for the best price that can be had for it, hereby giving my said executors full power and authority to make deeds of conveyance for the same in as full a manner as I could have made when alive; and from the proceeds of sale to pay all my just debts and funeral expenses ; and all the residue of my estate to be divided as follows, that is to say :

      "1. I give anil bequeath to my son James W. Todd $5 and no more.
    ££ 2. My son Wm. W. Todd, and my four remaining daughters, viz : Mary, the wife of John Rank, Jane, the wife of Richard Tenyck, Sarah, the wife of James Van Pelt, and Elizabeth, the wife of Cornelius T. Beekman ; my son William to have two shares to my daughters one ; but the share of Sarah, the wife of James Van Pelt, it is my will and I do hereby order the same to he held in trust by my executors and the survivor of them, his executors and administrators, and the same to be placed out at interest and secured by bond and mortgage, and the interest thereof coming due annually to be paid to her or to her order ; and, in case of her personal necessities requiring, my executors or the survivor of them as aforesaid may give, according to their discretion, from time to time, a portion of the principal, and at her death the remaining part of her legacy to be divided equally among her children.
    “3. The sum of $1200 I have already advanced to my sos William, which it is my will shall bo deducted from his share, and also, in like manner, the sum of $400 to be deducted from-the share of each of my four last mentioned daughters, for the out-fits they received from me at the time af their marriage.”
    .Lastly, ho appointed his son Theodore Todd and his friends Abm. W. Cortelyou and Wm. J. Todd executors.
    That the said Wm. Todd died on or about Sept. 20, 1845,. and that, on or about Oct. 4, 1845, the said Abm. Cortelyou and Wm. J. Todd proved the will.
    That said testator left the following children him surviving, viz : Mary, wife of John Hunk, Jane, wife of Richard Tenyck, Sarah, wife of James T. Van Pelt, Elizabeth, wife of Cornelius .Beekman, Wm. W. Todd and James W. Todd, children by Ms first wife, and Margaret Ann, wife of the complainant Mulford, and the complainant Theodore S. Todd, children of the second wife.
    That the said J. Runk and R. Tenyck took possession of the real estate of the said Wm. Todd, so sold at Sheriff’s sale, and rented the same to a son of the said R. Tenyck, and received the rents, issues and profits thereof.

      That the said J. Runk and R. Tenyck, about the time of the delivery to them of the deed for the real estate of the said Wm. Todd in Somerset, mortgaged the said premises to one -- Vandervcer, for $2,100 or thereabouts, which mortgage still remains duo and unpaid. That, at the times of the sales of said farm in Somerset and of said tract of land in Morris, neither was incumbered by any mortgage or other incumbrance, except the judgments before stated.
    That, besides the proceeds of the said personal and real estate of the said Wm. Todd which, by means of the said agreement with the said Wm. Todd, the said J. Runk and R. Tenyck got possession of, the said Runk and Tenyck also induced said Wm. • Todd, under pretence of carrying out the said agreement in good faith, to place in their hands, or assign and transfer to them, a large amount of personal property, consisting of bonds, mortgages, promissory notes and other choses in action, the particular nature, amount and description of which is not fully known to the complainants. But they charge that, among other choses in action transferred by said Wm. Todd to said John Runk and R. Tenyck in pursuance of said agreement, or obtained by them from, said Wm. Todd under pretence of said agreement, was a bond which said Wm. Todd held against one John McKinstry for $1,000 ; also a bond and mortgage against one Wm. Willets for $300 or thereabouts ; also a promissory note of said J. Runk, payable to said Wm. Todd, for $1,000; also a promissory note of said Richard Tenyck, payable to said Wm. Todd, for $45. That all the moneys due on the said bonds and notes have been collected by said J. Runk and R. Tenyck, or might have been collected but for their negligence or wilful default.
    That the said J. Runk and R. Tenyck also received of pension money due the said Wm. Todd at the time of his death $37.
    That the said J. Runk and R. Tenyck have wholly neglected to comply with the trusts, provisions and conditions of the said agreement under which, or by pretence of which, they got possession of the real and personal estate; and that they have converted the said personal estate and the rents and profits of the real estate to their own use*
    The bill prays, that the said agreement made by said Runk and Tenyck witli the said Wm. Todd may be performed by said Hunk and Tonyck; and that they may set forth an account of all the moneys received by them, or either of them, since the date of said agreement, for or in respect of the personal estate of said Wm. Todd, or for or in respect of the real estate and other effects purchased by them at the Sheriff’s sale, or which iri any way came to their possession under or by virtue or in pursuance of said agreement or any other agreement of a like nature ; and also a description and particular statement of such parts of said lands as have been sold by them, and of all moneys received for or in respect of such sales, and an account of all bonds, mortgages, notes, &c. delivered to them, or either of them, after the date of the said agreement, and of all moneys received by them or either of them in payment of or by virtue thereof; and that the real estate of the said Wm. Todd which, since the date of said agreement, has come to the hands of the said J. Hunk and R. Tenyck may be sold under the direction of this Court, and that the proceeds thereof, together with the proceeds of the personal estate, be divided among the legatees in the will of said Wm. Todd named, according to the terms of the said will; and for such other and further relief &c.
    The defendants Runk and Tenyck put iu their joint and several answer, denying the material allegations of the bill; and testimony was taken on both sides.

      W. Halsted for the complainants.
    Ho cited 1 Green's Ch. 501 ; 4 Dessaus. 505; 4 J. V. Marsh. 593; 2 Black’s Rep. 198.

      P. D. Vroom for the defendants.
    He cited 1 Greenl Ev. sec. 266; 5 John. Ch, 1.
   The Chancello».

The agreement charged in the bill is not sufficiently established to justify a decree for specific performance. The answer denies it, and there is no substantive proof of it. There is some evidence that the defendants have stated that the agreement was as the bill alleges ; but evidence of these statements only goes to impeach the denial of the answer ; it does not amount to substantive evidence of the existence of the agreement.

From the nature of the arrangement it was necessary to put matters in such' condition that, as between Wm. Todd and those whose claims he resisted, the property purchased by Runk and Tenyck should be or appear to be really and bona fide their property. The idea that the property, notwithstanding the Sheriff’s sale, should, as between Wm. Todd and Runk and Tenyck, be the property of Wm. Todd, was an idea which the very object of the arrangement required should be kept secret, that is, confined to the parties to the arrangement. This, and the confidence which would naturally be reposed by Wm. Todd in his sons-in-law, is very persuasive that no written agreement binding Runk and Tenyck to hold the property in trust for Todd was ever entered into. And there is no proof of any such agreement having been reduced to writing.

Again, the alleged agreement and arrangement are not such as commend themselves to favorable consideration. There is no-ground on which the Court can relieve from a breach of confidence reposed for such a purpose. Every consideration of policy forbids relief.

Another view was presented, though not very strongly; it is, that, from, the age of Wm. Todd and some bodily infirmity alluded to, he was not competent to transact business; and that the case might be put on the ground that the arrangement was fraudulently procured by Runk and Tenyck from one who was incompetent to understand the nature and object of it. I see no evidence of such incompetcncy.

Decree for defendants.