text:
    Thomas S. Smith v. Elizabeth Espy, Henry Freas, Jr., et al.
    1. A deed fraudulent as to judgment creditors may be impeached by a purchaser holding a conveyance under that judgment; but such purchaser stands in no better situation than the judgment creditor filing a bill to avoid the alleged fraudulent deed. To ascertain, therefore, the rights of the complainant, and whether he is entitled to the relief sought by his bill, we must examine into and ascertain the rights of the judgment creditors under whom he claims.
    2. One cannot question a conveyance as fraudulent against himself as a creditor, who advised and counseled its execution, who drew the deed, knowing it was intended to answer a fraudulent purpose, and, as a master of this court, took its acknowledgment.
    3. A court will refuse to listen to any explanations of a subsequent transaction between the parties to a fraud, as an antidote to the poison infused into the original transaction. But where one who had been no partaker in the iniquity of the transaction became a party to a deed, with no intention of defrauding any one, and at a time when there was no person who could he injured by her accepting it, and where neither party contemplated any improper use to be made of the deed then or thereafter; and where the complainant claims under judgment creditors not standing in a position entirely aloof from the fraudulent transactions, the deed will not he set aside as fraudulent.
    The complainant is a purchaser of the real estate in controversy, under a judgment against Henry Freas, Jr. Elizabeth Espy holds the property by deed from Henry Freas, prior to the judgment. The bill is filed to set aside that, deed on the allegation that it is. fraudulent, and was made and executed by Henry Freas, Jr., to defraud his creditors.
    The cause was heard on the bill; the separate answers of Elizabeth Espy, Henry Freas, Jr., and A., another defendant, and proofs taken on both sides. The bill alleges that the defendant, Henry Freas, Jr., having some title to the land in question, on the fifth of May, 1846, fearing that his guardian was about to obtain a decree against him in the Orphans’ Court of Salem county, with the advice of his brother William, executed a deed for the land to his mother-in-law, Elizabeth Espy, a poor woman, who worked for her living; that A. acfed as counsel, and drew the deed, and, as master in chancery, took the acknowledgment; that at the time of its execution Henry said that the deed was made to defraud his guardian and other creditors, and that no consideration was paid.
    That E. and A. in May, 1849, recovered a judgment in attachment against Henry -Ereas, Jr., in the Salem Circuit; that under this attachment this land was attached and sold to one Josiah S. Hacket, and a deed made to him, and that subsequently Hacket and wife conveyed to the complainant; that Elizabeth Espy admitted to A. that she had never paid anything for the deed, yet she meant to hold it to prevent Henry’s creditors from getting the land, and meant to hold-it for Henry’s children.
    The bill prays that the deed to Elizabeth may be set aside and declared void as against the complainant, &c.
    A. in his answer says that Henry applied to him to draw the deed; told him he wanted to execute it to cheat his guardian and other creditors; that he drew the deed, and, as a master in chancery, took the acknowledgment; and he admits all the other matters charged in the bill as within his knowledge.
    Henry Ereas, Jr., gives the following account of the execution of the deed in question :
    “ This defendant, some time prior to the execution of said deed, had proceeded in the proper court of Salem county aforesaid, against his testamentary guardian, Henry Ereas, to recover moneys which it was supposed were unjustly withheld by said Freas, in the seltlement of his accounts as guardian. The management of such proceedings was intrusted by this defendant to A. as his attorney, who is named as one of the defendants in complainant’s bill. For some reason which defendant cannot explain, the suit or proceeding was decided against him, and a decree or judgment was entered for the costs of the same, which decree or judgment, as defendant was instructed, became a lien upon the said interest in the real estate in Salem county, owned by him. And defendant also says that some time afterwards, on or about the 9th day of June, A. D. 1846, he, together with his brother William, (who is also named as defendant,) called on said A., then on a visit in Philadelphia. The conversation turned on the decree or judgment which had been lately obtained by said Henry Preas against this defendant, and its effects upon his said interest; whereupon the said William Ereas suggested that this defendant should make a deed for said interest to some one whom defendant should name. The said A., acting as attorney for this defendant, advised that this should be done, and that it should be antedated, so as to make it appear as if the deed had been made before this decree or judgment had been entered. A. then agreed to draw the deed, and have it ready in the course of a day or two, when the defendant was to call and execute if. At the meeting here referred to, upon its being suggested by this defendant that probably Mrs. Espy, whose name had been proposed by said William Ereas as a suitable one to be used in said deed, might object to her name being so used, the said A. remarked that that would make no difference, as it was a mere matter of form. And this defendant further says that he assented to Mrs. Espy’s name being used in said deed, because he was indebted to her at that time, as hereinafter stated, and it was his desire and intention, so far as he could do so, to protect her, while under the advice given as aforesaid he was endeavoring to protect his interest in said real estate.
    “And this defendant also says that Mrs. Espy was not consulted in reference to the making of said deed, nor was she advised that it was to be made. Said deed was made without her knowledge, and she was not informed of the existence of the same until long after the date of the transaction, as is hereinafter set forth.
    “And this defendant further says that, on or about the 11th of March, 1847, being greatly in want of money, and being indebted, as hereinafter stated, to his mother-in-law, the said Elizabeth, in the sum of ninety dollars, for which he had on the 4th of February, 1846, given to her a promissory note, in the words and figures following, to wit:
    “ ‘ Piiiladeijphia, Feby. 4, 1846.
    “ ‘ I promise to pay Elizabeth Espy, or her heirs, the sum of ninety dollars, lawfully borrowed money, which is borrowed of her for one year from the date, Feby. 4, 1846.
    “MIenry Freas.’
    “Which note had been given for money on the day therein specified by her, actually and in good faith lent and advanced to him, and which sum of money was fully due and payable. This defendant, in consideration of such indebtedness, and which as hereinafter stated he had previously endeavored to secure to her in making said deed, and which indebtedness he was not otherwise able to pay off and liquidate, and in consideration also of a further sum of sixty dollars in cash to him actually and in good faith paid by the said Elizabeth Espy, which sum, with the said promissory note, made up the consideration mentioned in said deed, did, absolutely, and without any condition, deliver to said Elizabeth the said deed, dated 5th day of May, 1846, and took back from her the said promissory note.
    “And this defendant further says, that the said Elizabeth had not been informed of the existence of said deed until on or about the said 11th day of March, 1847, when it was communicated by him to her, together with the reasons for which it had been made, and the fact that the decree or judgment which had been obtained by said Freas, was then entirely settled and out of the way.”
    The defendant, in his answer, further alleges that on the 11th of March, 1847, he had no creditors, except Mrs. Espy, and that besides her, A. was the only one who pretended to have any claims against him. He denies that Afs claim was a just one. He denies any knowledge of the conversation alleged to have taken place in reference to the deed between A. and Mrs. Espy.

      Mrs. Espy’s answer corresponds in substance with that of Henry Freas, and she expressly denies the alleged conversation with A.
    The evidence offered in support of the pleadings sufficiently appears in the opinion of the Chancellor.

      A. L. Eakin and Samuel A. Allen, for the complainant, cited Deale v. Paige, 2 Green’s Ch. R. 143; Boyd v. Dunlap, 1 Johns. Ch. Rep. 478 ; 2 Hill’s Rep. 27; 3 Hill’s Rep. 513; 7 Alabama Rep. 269; 22 Maine Rep. 360; 1 Hal. Ch. Rep. 76; Hart v. Teneyck, 2 Johns. Ch. Rep, 90; Vanderhoof v. Clayton, 2 Hal. Ch. Rep. 192.

      John T. Nixon, for defendants, cited 8 Wheat. Rep. 242; 1 Hare & Wal. Am. Lead. Ca. 55, et seq.; 1 Conn. Rep. 525; Lush v. Wilkinson, 5 Ves. 384; Battersbee v. Farrington et al., 1 Swan. R. 106; 18 Johns. Rep. 515; 1 Story’s Eq. J. 334, et sequitur.

   The Chancellor.

The only witness on behalf of the complainant as to the allegations of fraud contained in the bill, is E. He details a conversation which took place some time after the execution of the deed, between himself and one of the defendants, Henry Freas, Jr., the grantor in the alleged fraudulent conveyance. This evidence was objected to when taken before the master. As a general rule, what the grantor says to a third person, not in the presence of the grantee, either before or after the execution of the deed, is not legal evidence against the grantee, and cannot be used to invalidate his title. At the time of this conversation the deed was on record, but there had been no delivery of it to Elizabeth Espy; and it is admitted that, at the time, she knew nothing of the deed — there had been no negotiation between herself and Freas in reference to it, and she was a stranger to the whole transaction. At that time she had no rights which could be impaired by any thing Freas could say. The conversation was respecting a passed transaction, with which, it is admitted, Mrs. Espy had had nothing to do. It was not in reference to any contemplated negotiation which was to take place between Ereas and Mrs. Espy. In this view, the evidence is not objectionable. But did I consider that this evidence operated to the disadvantage of Mrs. Espy’s rights, I should admit it with great reluctance. If Mr. E. had been compelled, by the opposite party, to give this evidence, it would be free from animadversion. But how is the fact? Freas makes this deed for the avowed purpose of defrauding a creditor. The attorney and counselor-at-law, who is made a defendant in the cause, for the purpose of discovery, admits he prepared the deed, and aided and abetted the debtor in his unlawful purpose. Some difficulty occurring between counsel and client, another counsel is selected, to whom the debtor reveals the transaction. By the aid of the latter counsel, the creditor is brought to a compromise. Subsequently, the debtor becomes further indebted to this counsel, and then, when this fraudulent deed is set up to defeat his claim, he volunteers to detail a confidential communication, made to him by his client.

But this evidence, as far as the fraudulent purpose of Ereas is concerned in executing the deed, does not vary the case from the one presented by the pleadings.

The answers of Henry Ereas, Jr., and of Elizabeth Espy, admit that the deed in question was made and executed at the time, for the purpose of placing the property beyond the reach of the guardian of Henry Freas, who had then lately obtained a decree or judgment against him.

It is not alleged, in the bill, that when the deed was executed, Henry Freas, Jr., had any other creditor than his guardian, although it is alleged that he declared he executed the deed for the purpose of defrauding his guardian, and other creditors. The bill does not show that the judgment creditors, under whom the complainant claims, were creditors at that time, or that the debts were contracted, in any manner, on the faith of Henry Ereas being the owner of the property. It appears, however, in the case, that the debt to Mr. A. was contracted prior to the execution of the deed and the one to Mr. E., subsequent thereto. It does not appear that Freas had any creditors at the time the deed was executed, except his guardian and Mr. A., or any subsequent creditors, except Mr. E.

A deed, fraudulent as to judgment creditors, may be impeached by a purchaser holding a conveyance under that judgment; but such purchaser stands in no better situation than the judgment creditor filing a bill to avoid the alleged fraudulent deed. To ascertain, therefore, the rights of the complainant, and whether he is entitled to the relief sought by his bill, we must examine into, and ascertain the rights of the judgment creditor under whom he claims.

A deed executed with intent to delay, hinder, or defraud creditors and others of their just and lawful actions, suits, and debts, shall, in the language of the statute, be deemed and taken to be clearly and utterly void, frustrate, and of no effect.” But such deeds are good as between the parties, and as against all other persons whose actions, suits, debts, accounts, damages, penalties, forfeitures, and demands have not been, or may not be in any wise disturbed, hindered, or defeated by them.

Such a deed may be avoided, not only by existing, but by subsequent creditors. This was controverted on the argument, but the principle is established by numerous authorities. Where a distinction has been made between existing and subsequent creditors, it has been where the conveyance was not actually fraudulent, but the fraud was a legal inference from the debtor’s embarrassment at the time, or from other circumstances. Whether the weight of authority in such cases, favors this distinction, may be questioned, but it is well settled that in cases of actual fraud, the distinction does not exist. See the numerous cases cited in 1 Am. Lead. Cas. 64, 65, and 1 Story’s Eq. 361.

The judgment under which the complainant claims was in favor of A. and E. It is a judgment on attachment for the sum of one hundred and sixteen dollars and eighty-six cents. The debt of A. was thirteen dollars and twenty-six cents, and was contracted prior to the deed In question. E.’s debt was fifty dollars and ninety cents, and was contracted October 9th, 1848, more than two years after the date of the deed.

Could A. question this conveyance as fraudulent against himself, as a creditor of Henry Freas, Jr. ?

It appears that the consideration of A.’s debt was for services as a lawyer, rendered by him to Henry Freas, Jr., in defending the claim prosecuted against Freas by his guardian, and to defeat which claim the conveyance was executed; that A., as Freas’ counsel, drew the deed for this fraudulent purpose, and, as a master of this court, took the acknowledgment.

Henry Freas, in his answer, says that he went with one William Fries to consult Mr. A.; that in that interview William suggested that a conveyance should be made to some one, in order to defeat the claim made against Henry by his guardian. A., as attorney and counsel, advised this should be done, and that the deed should be antedated so as to make it appear prior in point of time to a judgment or decree, which had been, or would shortly be obtained in favor of the guardian.

A., in his answer, admits that he drew and took the acknowledgment of the deed, and that Freas told him at the time he meant to cheat his guardian and other creditors.

Upon what principle of equity can I set aside this conveyance in favor of A.’s debt ?

Equity and the common law abhor the fraud, and the statute law has given its sanction and authority to the court in discountenancing such conveyances. But to set aside such a deed for fraud in favor of one who advised and counseled in its execution, would be in violation of every principle upon which this court administers equity.

Freas executed the deed to defraud his creditor. A. counseled and aided Freas in accomplishing his purposes, and it would be inequitable that A. should be permitted to appropriate to himself the advantages of the conveyance, as it, would be to allow Freas himself to do so.

The complainant, therefore, as far as he claims under A. as a judgment creditor, is not entitled to the interference of the court. It remains to be seen whether he stands in any better situation claiming under E.

As has been already remarked, E. was not a creditor at the time of the execution of the deed. His debt was not contracted on the faith of Freas being the owner of this property. But this fact, as was before observed, will not prevent him, or the complainant claiming under him, from calling in question this conveyance and impeaching it, on the ground of fraud. Was it a question between A. and Freas, or a person claiming under Freas, with knowledge of the fraud, or whose conveyance was in any way tainted with it, the case might be free from difficulty. Whether A. or the person claiming under him is entitled to relief, must depend upon the nature of the title and the respective equities of the complainant and defendants.

What is the situation of E., as respects the alleged fraudulent transaction, and how do his equities compare with those of Mrs. Espy, whose rights it is sought, by this bill, to supersede ?

After the execution of the deed, A. turned his client over to E., and E. was retained as counsel to defend Freas against the claim which his guardian was prosecuting against him. Freas informed E. of the preparation he had made to defraud his guardian, and explained to him the manner and the purpose for which the deed had been executed. E. undertook the cause, and the result was that instead of the guardian’s recovering his money against Freas, a compromise was effected, upon his guardian’s paying Freas eighty dollars and also the costs of the suit, being eighty dollars more. What influence the fact of Freas having disposed of his property had in bringing the guardian to terms, we have no means of ascertaining.

Nearly a year after this transaction was closed, Freas became indebted to E. about fifty dollars for other professional services. Shortly after, A. issues the attachment, and E. comes in as a creditor under the same. No other creditor applies. The complainant holds under this judgment in attachment. E., as solicitor, files the bill in this suit, and A. conducts the suit as counsel for the complainant. A. is also made a,defendant to the bill, as a particeps criminis in the fraud. He answers and discloses the transaction, and admits the fraud.

All these circumstances, taken in connection, do not place E., as a judgment creditor, in a very favorable position to ask the aid of this court in setting aside the alleged fraudulent conveyance for his benefit. The complainant stands in no better relation claiming under him.

If this was the whole case, I should very much doubt the propriety of this court interfering. But taking into consideration the circumstances under which Mrs. Espy holds her title, I am satisfied that the complainant ought to be left to his remedy at law.

Mrs. Espy denies all participation in the alleged fraud. She had no knowledge of the execution of the deed. It was, executed and recorded without any consultation with her, and she was ignorant of its existence until the following March, ten months after its execution. Her denial is not questioned, and she stands before the court with a clear conscience in reference to the transaction. The charge in the bill, that she declared to A. that she meant to hold the property to prevent Freas’ creditors from getting his land, and for the benefit of Freas’ children, is denied by her, and there is no proof to sustain the allegation.

The answer of the defendant A. is no evidence of the fact.

At the time of the execution of the deed, Henry Freas was indebted to Elizabeth Espy in the sum of ninety dollars, for which she held Freas’ note, bearing date more than eight months prior to the date of the conveyance.

On or about the 11th of March, 1847, which was more than eighteen months prior to the time when E.’s debt was contracted — at a time when Freas had no existing creditors, and after his settlement with his guardian — Freas informed Mrs. Espy of the execution of the deed. He told her the purpose for which it had been executed, but informed her that the difficulty with his guardian had been adjusted, and offered to deliver to her the deed, if she would pay him sixty dollars, the difference between what he owed her and the consideration mentioned in the deed. To this she assented-; paid him the sixty dollars and took the deed.

It is insisted on behalf of the complainant — First. That it is not proved that Mrs. Espy gave the consideration alleged, and that it is necessary to support this part of her answer by proof.

The principle contended for is a familiar one, and required no reference to authorities to support it; that any allegation of the answer which is not directly responsive to the bill, but sets forth matters in avoidance or bar, is denied by the general replication, and must be proved aliunde.

The question is, whether this part of Mrs. Espy’s answer is responsive to the bill, in such a view as will make it evidence for her.

The bill charges that Freas executed the deed to defraud a certain creditor, that he did not deliver it to Mrs. Espy, and that she paid no consideration for it. Mrs. Espy admits this, but sets up a transaction which occurred some eighteen months afterwards, in avoidance of the consequences which must necessarily follow from such admissions. An avoidance is something dehors that which is admitted, and subsequent thereto. If a defendant admits the receipt of a certain sum of money on a particular day, and avers that he paid it over, that may discharge him; but if he alleges he paid it over at a subsequent time, or made an appropriation of it, by direction of the person for whom he received it, he must prove such allegations. Thomson v. Lambe, 7 Ves. 58; Hart v. Teneyck, 2 J. C. R. 92. It is true, one of the interrogatories put by the complainant is, whether any consideration was paid by Mrs. Espy for the deed ; but most certainly, this does not give the defendant a latitude of setting up and explaining a negotiation in reference to the consideration and delivery of the deed, which occurred some eighteen months afterwards. The answer, therefore, of Mrs. Espy, cannot be taken as evidence of the consideration which passed between herself and Freas, or as an explanation of a transaction some months after the execution of the deed.

But 1 am perfectly satisfied with the testimony of Elizabeth Espy, the grand-daughter, who proves the whole transaction as it is alleged in the answer. Her lestimony was questioned only on the ground of her extreme youth. She was fifteen years old when examined. Her testimony is clear, and is given, as far as we can judge of evidence taken by commission, as this was, with much intelligence. Her evidence bears on the face of it the impress of truth. She states many facts, to which others wore witnesses, as well as herself, and some of which could have been impeached, if not accurately detailed by her. She shows one important fact, the contrary of which is alleged in the bill, and that is the pecuniary ability of Mrs. Espy to pay the consideration money. If this was untrue, it could easily have been disproved, for she states the source from which Mrs. Espy received her means, each week, in the city of Philadelphia. Her testimony proves the transaction as stated in the answers of Mrs. Espy and Henry Freas, Jr., and there is no circumstance in the whole case, that leads me to doubt that we have the truth of the whole transaction between Mrs. Espy and Henry Freas, Jr., in their answers. There is a frankness in the answers, corresponding with the case as it has been developed, which commends, itself to the consideration of the court.

But the complainant further insists that, admitting Mrs. Espy’s allegations to be true as to the delivery of the deed to her, and as to her payment of the consideration money, the deed having been fraudulently executed by Freas, and put on record, no subsequent arrangement or negotiation with regard to ii, between Mrs. Espy and Freas, could purge it of the original fraud. If Mrs. Espy had been a partaker in the iniquity of the transaction, the position would be correct; and a court might well refuse to listen to any explanation of a subsequent transaction between the parties to the fraud, as an antidote to the poison infused into the original transaction. But when she became, with her consent, a party to this deed, it was with no intention of defrauding any one, and it was at a time when there was no person who could be injured by her accepting it. Any improper use to be made of the deed, then or thereafter, was not contemplated by either Ereas or herself. I cannot see that Mrs. Espy has done anything which does not comport with fairness and honest dealing.

My only doubt about the case has been whether I ought not, on account of the smallness of the consideration given by Mrs. Espy, to allow the complainant to take the property, upon paying Mrs. Espy what she paid for it, with the interest. I would do so if the complainant claimed under judgment creditors, standing in a position entirely aloof from the fraudulent transaction. But, on reflection, I am satisfied to dismiss the bill, without costs to be paid by either party to the other.

The view I have taken of the case is no hardship upon the complainant. He purchased the property on speculation. The deed from Ereas to Mrs. Espy was on record, and the complainant knew that the title he obtained would be of no value, unless he could successfully impeach the deed for fraud. The whole case was before him, and he bought with his eyes open.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Zephaniah Vaughn v. Augustus S. Johnson and Samuel Cavalier, Administrators of Charles Cavalier, deceased.
    1. An answer, purporting to be an answer of two defendants, and signed by solicitor and counsel, as solicitor and counsel of the defendants, but sworn to by one only, is not what it purports to be. It is not the answer of the defendants, but of one of them only; and cannot, without the consent of the opposite party, be read as the answer even of the defendant who has sworn to it.
    2. It is not sufficient to show that injustice has been done in a trial at law, to entitle the party to the interference of this court, but it must have been done under circumstances which authorize the court to interfere. If a matter has already been investigated in a court of justice, according to the common and ordinary rules of investigation, a court of equity cannot take on itself to enter into it again.
    3. This court cannot grant relief on the ground that the court at law erred in overruling evidence. An interference on such grounds would convert the Court of Chancery into a Court of Errors, and would be an assumption of jurisdiction which does not belong to the court.
    4. If the defence is equally available at law as in equity, and the party has had an opportunity of making the defence at law, a court of equity has no jurisdiction to relieve against the judgment, unless some special ground for relief can be established other than that of an error in law committed by the court which has jurisdiction of the case.
    5. As a general rule, this court will not interfere with a judgment at law solely because the principal witness was mistaken as to facts, and was subsequently found to be in error.
    6. Nor will relief be granted where the party has been deprived of his defence in any manner, through his own neglect or laches.
    7. The complainant stated that he had been deprived of his defence in a trial at law by the court’s allowing parol proof a judgment. Held, that against such a decision of the court the complainant can obtain no relief here.
    The defendants, as administrators of Charles Cavalier, deceased, obtained a judgment in the Atlantic Circuit against the complainant. On filing the bill an injunction was allowed,' restraining the defendants, as plaintiffs in the judgment, from enforcing the same. An answer having been filed the defendants now moved to dissolve the injunction.

      Mr. W. Halsted, for motion, insisted—
    First. That the answer denied the equity of the bill. Second. That the injunction should be dissolved, and bill dismissed for want of equity.

      Messrs. Woodhull and Grandin, contra.

    First. The answer is irregular. It purports to be the answer of both defendants, and is sworn to by only one.
    Second. The case made by the bill entitles the complainant to relief. Story’s Eq. Pl., § 869.
    Third. Complainant entitled to answer of both defendants. Vliet v. Lowman, 1 Green’s Ch. Rep. 404; Price v. Clevinger, 2 Green’s Ch. Rep. 208 ; Scull & Thompson v. Reeves et al., 2 Green’s Ch. Rep. 84.
   The Chancellor.

The defendants, as administrators of Charles Cavalier, deceased, obtained a judgment in the term of December last of the Atlantic Circuit Court against the complainant. The complainant has exhibited his bill to be relieved against this judgment; and on filing the bill art injunction was allowed, restraining the defendants as plaintiffs in the judgment, from enforcing the same. To this bill an answer has been filed, and the defendants now move a dissolution of the injunction on two grounds.

First. That the equity of the bill is answered. And, Second. That the bill does not make a case entitling the complainant to relief. The complainant’s counsel objects to the reading of the answer, and insists it is irregular. The objection, I consider, is well taken.

The answer purports to be that of Augustus F. Johnson and Samuel Cavalier, administrators, &c., of Charles Cavalier. It is signed by solicitor and counsel, as solicitor and counsel of the defendants, but is sworn to by Samuel Cavalier only. It is not what it purports to be. It is not the answer of the defendants, but of one of them only, and as it stands now on the files, it cannot, without the consent of the opposite party, be read as the answer even of the defendant who has sworn to it.

In Harris v. James, 3 Bro. C. C. 400, on motion made by counsel of the defendants, that an answer of five defendants, sworn to by three only, might be filed as the answer of the three, the Lord Chancellor refused the motion.

In Done v. Read, 2 Ves. & Beam’s Rep. 310, on a motion made by counsel to strike out the names of two defendants in an answer, who had not sworn to it, it was suggested by Mr. Hart (as amicus curiae) that the course was that the answer should be received as the answer of those who had sworn to it. The 'Vice-Chancellor did not adopt the suggestion, but the plaintiff’s counsel consenting to the motion, an order was made accordingly.

In Cooke v. Westall, 1 Mad. Rep. 149, an answer, stated to be the joint and several answer of two, but sworn to only by one, was ordered to be taken off the file, with costs. See also the case of The Fulton Bank v. Beach et al., 2 Paige 307, and same case on appeal, 6 Wen. Rep. 36.

The answer is irregular, and cannot be read on this motion.

But the defendants insist that, by his bill, the complainant is not entitled to any relief at the hands of this court.

The case made by the bill is this. Prior to the year 1843, Cavalier, the complainant’s intestate, gave his promissory note to Obadiah Huntley for about the sum of two hundred and sixty dollars. Huntley endorsed the note, and passed it to one John Endicott. Endicott sued the endorser, Huntley, and having recovered judgment upon the note, issued execution and raised the amount due thereon. Subsequently, in the year 1835, Charles Cavalier, the drawer of the note, recovered against the complainant, in the Inferior Court of Common Pleas of the county of Gloucester, a judgment for the sum of one hundred and twenty-five dollars, or thereabouts. The complainant is the son-in-law of Obadiah Huntley.

The bill alleges that, after Cavalier had recovered this judgment, he threatened to collect the same by execution, unless the complainant would get his father-in-law, Huntley, to take the judgment in satisfaction, or part satisfaction, of the said promissory note which Huntley, as endorser, had paid to Endicott, and then held against Cavalier; that the complainant not being able to pay the judgment against him, applied to Huntley for assistance, and told him what arrangement could be made with Cavalier; that Huntley’s father-in-law agreed to take the said judgment in satisfaction, as far as it would go, and promised to see Cavalier and settle the matter; that afterwards Cavalier told the complainant that he, Cavalier, had seen Huntley, and that the arrangement was made for Huntley to take up the judgment. The bill alleges that this arrangement was carried out by the complainant afterwards paying the amount of the judgment to Huntley; that the matter was, by all parties, considered as arranged, and no steps were taken by any one, inconsistent with such understanding and arrangement, until some ten years after the death of Cavalier, when the defendants commenced their suit at law upon the judgment in favor of Cavalier, against the complainant; that all these facts and circumstances were known to the defendants, and that they treated the said judgment as satisfied until they commenced their suit; that when the suit-at law between the parties came on for trial, and the plaintiffs therein had rested their case, upon the production of .the record of the judgment, the complainant’s counsel opened their defence, and insisted upon these facts under their plea of payment; that the plaintiffs, by their counsel, thereupon objected to the evidence, insisting it was not competent under the issue joined in the cause; that the court overruled the objection, and admitted the evidence; that Huntley was called as a witness, and proved the facts as hereinbefore stated, but that, in addition thereto, he testified that Endicott recovered a judgment, not only against Huntley, the endorser, but likewise against Cavalier, the drawer of the note; that thereupon the court decided that this evidence, having established a subsisting judgment against Cavalier, it did not constitute an available defence in a court of law, and overruled the evidence; that the complainant, having no other defence,the cause was submitted, and the jury found a verdict for the plaintiffs. The bill avers that at the time of the trial, and until some time after the close of the term at which the trial was had, the complainant did not doubt that there was such judgment against Cavalier, hut that he has lately been informed by Endicott that no such judgment was recovered by him, and that upon searching the records, the complainant is satisfied no such judgment was recovered. To the bill is annexed the affidavit of Huntley, stating, among other things, that he has no doubL he was mistaken in testifying that the said Endicott, before suing him, the said Huntley, as endorser, had sued the said Cavalier as maker of the said note. Upon these facts the complainant prays that the defendants may be enjoined from all further proceedings at law to enforce the said judgment.

If this statement of facts is true, it is very plain that the defendants ought not to enforce the judgment in favor of their intestate against the complainant. But this may be so, and yet this court have no right to interfere with the judgment at law which the defendants have recovered against the complainant. The defendants instituted proceedings at law upon the judgment, as they had a perfect right to do. The complainant saw fit to meet the case there. A trial has been had by a jury, and upon their verdict the court has rendered judgment against the complainants. Nor is it sufficient to show that injustice has been done in the trial at .law, to entitle the party to the interference of the court. In Bateman v. Willoe, 1 Sch. & Lefr. 204, Lord Redesdale says: “ It is not sufficient to show that injustice has been done, but that it has been done under circumstances which authorize the court to interfere, because if a matter has already been investigated in a court of justice, according to the common and ordinary rules of investigation, a court of equity cannot take on itself to enter into it again.”

This court cannot grant the party relief, on the ground that the court at law erred in overruling the evidence. An interference on such grounds would convert the Court of Chancery into a Court of Errors, and would be an assumption of jurisdiction which does not belong to the court. If the defence is equally available at law as in equity, and the party has had an opportunity of making the defence at law, a court of equity has no jurisdiction to relieve against the judgment, unless some special ground for relief can be established other than that of an error in law committed by the court which had jurisdiction of the case. 2 Mylne & Keene 423, Harrison v. Nettleship & Fuller.

In this case the bill alleges that the court, on the trial, decided that the defence was a good one and permitted it to be made, but that the witness, by whom the facts constituting the defence were proved, testified to an additional fact which destroyed the defence and led the court to overrule all the evidence offered to sustain it. That additional fact was this: That there was a subsisting judgment in favor of Endicott against Cavalier. The complainant alleges that since the trial, he has discovered that his witness was in error, and that there was no such judgment. The complainant has become involved in his present difficulty, then, by his witness swearing to what was not true — not corruptly — but under some mistake. For this court to interfere with a judgment at law, solely because the principal witness was mistaken as to facts, and was subsequently found to be in error, would be a very doubtful and a very dangerous ground for this court to interfere with the judgment. As a general rule, this court will not interfere with a judgment of a court of law, on the ground that a witness was mistaken as to a fact upon which the defence turned, or that he swore corruptly. I say, as a general rule, for there may be some peculiarity attending such a case which will justify the interference of the court. But there must be some peculiar circumstances, and not of ordinary occurrence, to render such interference proper.

Admitting that in this case, the court was right in its decision that the witness having testified to a subsisting judgment in favor of Endicott against Cavalier, the defence was not available in law, how does the complainant stand before the court? The complainant admits that he went to trial under the impression that there was such judgment. But if this was the fact, which rendered his defence unavailable at law, he was guilty of gross laches in not searching the records and ascertaining with certainty whether such a judgment existed. It appears, then, from the complainant’s own statement of his case, that he has been deprived of his defence solely in consequence of his own negligence. Relief will not be granted when the party has been deprived of his defence in any manner through his own neglect or laches.

I must admit I cannot see how the fact of the witness testifying that there was a subsisting judgment in favor of Endicott against Cavalier, could have affected the defence. In the first place, if it was a fact so material as to deprive the party of his defence at law, it being a matter of record, it should have been proved by the record. But suppose it had been so proved, was it not perfectly competent for Huntley to show that the judgment had been satisfied ?

The judgment against Huntley was against him as endorser. Had there been a judgment against Cavalier it would have been against him as the drawer of the note. When Huntley paid off the judgment against him, the judgment against Cavalier for the same debt could not have been enforced.

If the complainant correctly states his case, his defence, whether there was a judgment against Cavalier or not, was equally available in law as equity, and the court, when the trial was had, was as competent to grant him relief on that trial as this court could be in a case instituted here upon the like facts. If this is so, and the court erred in judgment in overruling the defence, that error I cannot correct.

But the statement of the facts in the bill, taken in connection with the affidavit of Huntley annexed to the bill, leaves it uncertain whether the cause of complaint alleged by the complainant really exists.

The bill alleges that the complainant was deprived of his defence because his witness proved there was a subsisting judgment in favor of Endicott against Cavalier, which the complainant, as well as the witness, has, since the trial, discovered was a mistake. It is upon this ground the complainant asks the court to interfere. Huntley, in his affidavit referred to states the facts at length, to which he testified at the trial, but he says nothing of having testified to their being a subsisting judgment. All he says in reference to this important part of the case is, “ That he has no doubt that he was mistaken in testifying that the said John Endicott, before suing this deponent as endorser, had sued the said Charles Cavalier as maker of the aforesaid note; and that this deponent, though many years under a different impression, is now convinced that no suit was ever brought on that note against the said Cavalier.” Now, testifying that a suit was brought.'is very different from testifying that a judgment was obtained.

This material variance between the bill and the affidavit, involves the complainant’s case in a good deal of uncertainty, and leads me to suppose that there is some misapprehension as to the action of the court in reference to the evidence. The witness does not say, as the bill alleges, that he testified to there being a subsisting judgment, and explain how he came to make such a mistake; and yet the only excuse the complainant gives for invoking the aid of this court is, that the witness did so swear, and that upon that ground the court overruled the defence.

I cannot interfere with this judgment, unless I can see that the defendant has been deprived of his defence, not through any error of the court, but by some circumstance not attributable to his negligence, or by some fraud practiced by his adversary, and against which this court only can grant him relief. If the complainant correctly states his case, he was deprived of his defence by the court’s allowing part proof of a judgment in favor of Endicott against Cavalier. Against such a decision of the court the complainant can obtain no relief here.

I am of opinion that-this injunction was improvidently-granted, and should be dissolved, and that the bill showing no grounds upon which the complainant is entitled to relief should be dismissed, with costs.

Cited in Cairo and Fulton R. R. v. Titus & Soudder, 12 C. E. Gr. 106; Holmes v. Steele, 1 Stew. 176.


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    In the matter of Runey Dey, alleged to be a Lunatic.
    1. This court has the power of making a provisional order, to protect the lunatic’s property, pending the proceedings under the commission. But there is no precedent for converting the petition into a bill in chancery, making a case against third persons, and in this way invoking the action of the court upon matters involving the right of others not parties to the proceedings.
    2. Such practice is condemned.
    3. But the court will not, for this reason, nor for defect or informality in the petition, set aside the proceedings, if it appears from them that the supposed lunatic is so indeed, and is entitled to the protection of this court, and lie will be benefited by this court’s interference.
    4. Although the affidavits accompanying the petition do not come quite up to the requirements of the rule and practice of the court, the court will not, on this account, quash an inquisition by which the affidavits themselves were entirely confirmed.
    5. On taking an inquisition, unlawful evidence was admitted, on exceptions duly made — declarations, not under oath, as to the state of mind of the alleged lunatic. But it appearing that a large number of witnesses had been examined; that the alleged lunatic was before the jury ; that the investigation continued for five successive days, and that the defence had been conducted by able counsel, it was held that the court would not be justified in interfering with the proceedings, on account of the admission of this testimony, its character not being such as must necessarily, or did probably, influence the jury in their finding.
    6. It is not a good ground for exception that “ the infant children of the' petitioner were, day by day, brought before the jury, and appeals, as from them and in their behalf, made to said jury by the counsel having the conduct of the suit or application.”
    7. No person can be deprived of the right to manage his own affairs, or of his personal liberty, without the intervention of a jury, and, in cases of lunacy, the verdict of the jury is to be founded, as in all other cases, upon satisfactory and unexceptionable evidence submitted to their consideration.
    A writ de lunático inquirendo was issued to inquire of the lunacy of Runey Dey. By the return, it appears that twenty-three jurors, all that were qualified, sat upon the inquisition, and, by their unanimous finding, declared Runey Dey a lunatic, and that his lunacy had existed for more than eighteen months prior to their finding.
    On behalf of the lunatic a number of exceptions were filed to the proceedings. Sufficient of the case appears in the opinion of the Chancellor to understand the principles involved and settled.
    Argued at Trenton, May Term, 1852.

      Mr. Leupp, on behalf of the lunatic, and in support of the exceptions filed, cited 2 Law Lib. 655; Shelford on Lunacy 171; Potts’ Forms 171; Saxton 19 ; Rogers’ case, 1 Hal. Ch. 49 ; 2 Mad. Rep. 729 ; Tomlinson’s case, 18 Ves., R. L., 552; 4 Johns. Ch. Rep. 169.

      Mr. Beasley, contra, cited Saxton’s Ch. Rep. 25; 2 L. L. 81; 1 Johns. Ch. Rep. 600, In the matter of Wendell, a lunatic.

   The Chancellor.

On the petition of Emily Dey, the widow of a deceased son of the alleged lunatic, a writ de lunático inquirendo was issued to inquire of the lunacy of Runey Dey. By the return, it appears that twenty-three jurors, all that were qualified, sat upon the inquisition, and, by their unanimous finding, declared Runey Dey a lunatic, and that his lunacy had existed for more than eighteen months prior to their finding. The alleged lunatic has,,by his counsel, filed several exceptions to the proceedings. I will examine them in their order.

The first exception is, “ For that the said petition is multifarious, and in the article of alleged lunacy is not sufficiently sustained by the affidavits thereto annexed.”

The petition contains a prayer for an injunction against Richard Conover, to enjoin him from cutting down, selling and removing wood and timber upon a farm in the possession of the petitioner, and belonging to the alleged lunatic. The facts and circumstances are set forth in the petition as grounds for this application.

That the court has the power of making a provisional order to-protect the lunatic’s property pending the proceedings under the commission, I have no doubt. Wendell’s case, 1 J. C. R. 600. Shelford 127 mentions several instances of the kind. In one. case, after commission issued, the wife of the supposed lunatic, and all other persons in whose custody or power the personal estate and effects of the lunatic were, W'ere restrained from selling or disposing of the same. And in another case, where a petition for a commission only had been presented, certain parties were restrained from interfering in any manner with the concerns of the supposed lunatic. And even where a sale under execution of the effects of the lunatic is about to take place, the court will interfere if it is necessary and proper. But I can find no precedent for converting the petition into a bill in chancery, making a case against third persons, and in this way invoking the action of the court upon matters involving the rights of others not parties to the proceedings. I am not willing to approve this practice unless it can be shown that it has received the deliberate sanction of the court, and on that account should be considered settled.

But ought the court for this reason to set aside these proceedings ? If it appears that Runey Dey is a lunatic, and is entitled to the protection of this court, who will be benefited by this court’s interference for a defect or informality in the petition ? Richard Conover, against whom the injunction was prayed, makes no complaint. If the finding of the jury is correct, the property was properly protected by the court, and the only objection is as to the manner in which that protection was afforded. The petition is in other respects formal, and in conformity to the practice of the court. As to the affidavits accompanying the petition. The affiants state that for the space of two years last past they have known, and been well acquainted, and frequently discoursed with Runey Dey — that within the space of two years last past, they have, by frequently observing the behavior, words and actions of the said Runey Dey, looked upon him to be a person deprived of his understanding and reason, in a very great degree. One of the affiants states that a short time ago, when visiting at his house, he saw him treated and led about like a child, and found him, altogether unable to hold any rational conversation.

In tiie case of Covenhoven, Saxton’s Rep. 19, the affidavits were not as full as those annexed to this petition, and yet the Chancellor deemed them sufficient, and decided, I think, very properly, that if the affidavits did not come quite up to the requirements of the rule and practice of the court, he would no't quash an inquisition-by which the affidavits themselves are entirely confirmed.

The second exception likewise refers to the injunction issued upon the application of the petitioner, and is included in the remarks I have already made.

The third exception is, “ that on taking of the said inquisition, unlawful evidence was admitted on exceptions thereto duly made, in that the declarations not under oath of Richard G. Conover, in said petition named, as to the state of mind of said Runey Dey were given in evidence, and also a written notice to quit the aforesaid premises served by said Conover on said petitioner.”

The evidence as to the declarations of Richard G. Conover, was clearly illegal. If the court could see that illegal testimony of an important nature was taken before the inquest, and its character such as must necessarily, or did probably influence the jury in their finding, the proceedings ought not to be permitted to stand. In the case before us, the investigation was a thorough and protracted one. A large number of witnesses were examined — the alleged lunatic was before the jury — the investigation continued for five successive days — able counsel conducted.the defence, and it is somewhat remarkable that the only evidence admitted to which exception was taken on account of illegality, was that embraced in this exception. I should not feel myself justified in interfering with those proceedings, on account of the admission of this testimony, because I do not consider that its character was such as to influence the jury in the result they reached.

The fourth exception is, that' the infant children of the petitioner were day by day brought before the jury, and appeals as from them and in their behalf made to said jury by the counsel having the conduct of the suit, or application.”

It does not appear that any exception was taken to the presence of these children during the investigation, and if this was the most exceptionable matter, on the part of the counsel who conducted the case in the prosecution of the commission, there certainly cannot be much ground for dissatisfaction on the part of the lunatic as to the manner in which the commission has been executed. Yo complaint is made as to the conduct of the commissioners or the jury, and none, other than that referred to, as to that of counsel. The patience and fidelity of the commissioners and jury satisfy me that no misplaced sympathy for these children or others, has influenced them to the prejudice of the unfortuuate individual whose rights and personal liberty were in a measure committed into their hands.

The fifth and last exception is, Because the verdict of said jury was against the weight of testimony submitted to them.”

jSTo person can be deprived of the right to manage his own affairs or of his personal liberty, without the intervention of a jury; and in cases of lunacy the verdict of the jury is to be founded, as in all other cases, upon satisfactory and unexceptionable evidence submitted to their consideration. I have examined the notes of the evidence taken by the counsel who conducted the case on behalf of the alleged lunatic, and which was agreed by counsel should govern me in my decision upon this exception. In examining this history of the trial, I was struck with the great patience, diligence and propriety with which the commissioners executed the trust reposed in them. I must confess the evidence does not make out, in my judgment, a very strong case. And yet I cannot say I am dissatisfied with the conclusion arrived at by the jury. In addition to this evidence which I have had the opportunity of examining, the jury had the alleged lunatic before them. They reached their conclusion without a dissenting voice, and nothing has since transpired tending to call in question the propriety of the inquisition.

I feel it my duty to make .a decree confirming the proceedings.


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    Samuel Davidson, John L. Burrt and others v. R. H. and J. G. Isham.
    1. The machinery of a mill which adjoined private dwellings in a densely populated part of a city, was driven by a steam-engine. The complainants alleged that the lives of those residing in the neighborhood were exposed to the danger of the bursting of the boiler of the steam-engine ; that the working of the steam-engine and machinery shook the adjacent houses, and particularly two of the houses owned by one of the complainants ; ,that the business there carried on caused smoke, steam, vapor and unwholesome stenches, of a nauseous and disgusting character, rendering it uncomfortable to dwell in the vicinity. The defendants denied that their business as carried on was a nuisance, and alleged that the facts upon which the complainants rely had been submitted to the proper tribunal for trying issues of fact, and that the issue had been found in their favor.
    2. Held, that the business being a lawful one, the question of nuisance is a matter of fact to be determined by the evidence. That upon conflicting testimony, this court would not interfere, where the question of fact had been previously submitted to a court of law, whose peculiar province it is to determine questions of law involved in the issue, and to guide and direct the jury to a proper result. That it is not necessary to constitute a nuisance that the smell should be unwholesome; it is enough if it render the enjoyment of life and property uncomfortable.
    3. There is no objection to several complainants uniting in a bill if the nuisance is common to all, but they have no right to make a joint complaint for particular injuries confined to one or two of the complainants, as shaking, &c., the houses owned by one of the complainants. They cannot unite their distinct and individual causes of complaint and by their combination make a case of nuisance which separately would not establish the complaint.
    4. But a bill may be filed by several complainants, where the matter complained of is prima facie a common nuisance, as a slaughter-house in a city.
    5. There may-be circumstances where even the noise of a steam-engine may become a private nuisance, and its use on that account be restrained by the court. But it would seem that the use of a steam-engine is not prima facie a nuisance, on account of its danger to life from explosion.
    The bill was filed to restrain the defendants from carrying on a certain business at Jersey City, alleged to be a nuisance. An application was made for an injunction, and the Chan-cell or ordered notice of the motion to be given to the defendants.
    The defendants answered the bill. Affidavits to a large extent were taken by both parties, and read on the argument of the motion, which was heard at Newark, August 5th, 1852.

      Mr. A. Whitehead, for the motion, cited King v. White, 1 Burr. 333; Walter, v. Steele, 4 E. C. L. & E. R. 15; Catlin et al. v Valentine, 9 Paige 575; Rich v. Basterfield, 61 E. C. L. Rep. 255; 2 Bing. New Cases 134; Rex v. Cross, 12 Eng. C. L. Rep. 226 ; Earl of Ripon v. Hobart, 8 Con. En. Ch. R. 331-469.

      Chapman and W. Rutherford, contra, cited Eden on Inj. 259; 2 Story's Eq. Jur., § 923; People v. Cunningham, 1 .Denio 524, 3 Black. Com. 219; 19 Johns. 223; 8 Cowen 146; 17 Conn. 372; 10 Alabama 63.
   The Chancellor.

The complainants, by their bill, allege that they own and occupy dwellings in a densely populated portion of Jersey City; that within a few hundred yards of their residences, there is a live-story building, which the defendants are occupying as a mill, ostensibly for the sole purpose of burning and grinding coffee and spices, but in reality, for drying and grinding various kinds of drugs of a nauseous and offensive character, as well as for burning and grinding coffee, peas, various kinds of spices, and other substances. The bill alleges that the defendants have carried on this business since the month of December last, and charges that the same, as prosecuted, is a nuisance. The machinery of the mill is driven by a steam-engine, occupying a small building erected for the purpose, on the rear of the lot where the main building stands, the lot being one hundred feet deep and twenty-five feet in width. The complaint is that the lives of those residing in the neighborhood are exposed to the danger of the bursting of the boiler of the steam-engine; that the working of the steam-engine and machinery shakes and jars the adjacent houses, and particularly two of the houses owned by Charles F. Durant, one of (he complainants; that the business there carried on causes dense smoke, steam, and vapors, and also smells and stenches of an unwholesome, disgusting, and nauseating character, to arise and proceed from the said premises, corrupting the atmosphere, and rendering it uncomfortable to dwell in the vicinity.

The defendants, by their answer, deny all the allegations in the bill, charged as constituting their mill and machinery a nuisance.

Affidavits to a large extent have been taken on both sides —twenty witnesses have been examined by the complainants, and ten by the defendants.

Whether or not the business, as conducted by the defendants, is a nuisance, is a matter of fact to be determined by the evidence. The business itself is a lawful one, and the defendants have a right to carry it on where they please, so that they do not endanger life, or render its enjoyment uncomfortable to those who reside in its neighborhood.

The defendants deny that their mill and their business, as carried on there, are a nuisance, and they set up in their answer that the facts upon which the complainants rely to establish the allegation, have been submitted to the proper tribunal for trying issues of fact, and that the issue has been found in their favor.

The bill states the fact that the business carried on at the mill, by the defendants, is the same as was, for several years previous, conducted by Williamson, Mann & Griffith. The defendants, as part of their defence, show that Mr. Durant, one of the complainants, instituted a suit at law in the Circuit Court of the county of Hudson, against Williamson and his associates, for the purpose of abating this same nuisance of which they now complain against the defendants, as continuing. The cause has been twice tried by a jury, and at both trials, verdicts have been rendered in favor of the defendants in the suit. The cause is still before the court, on the samé issue, On a motion for a rule to show cause why a new trial should not be ordered. In addition to this fact, it appears that after he had commenced the suit at law, Mr. Durant exhibited his bill in this court- for an injunction. Tiie injunction was refused by the Chancellor, on the ground •that the issue joined at law must first be tried.

Under these circumstances this court ought not to interfere. Here is a question of fact depending upon the conflicting testimony of witnesses. It has already been submitted to a tribunal to which this court ought to pay deference in cases of doubt. It is before a court of law, whose peculiar province it is to determine questions of law involved in the issue, and to guide and direct the jury to a proper result.

If the complainants’ facts, as alleged in the bill, are true, I have no difficulty as to the law applicable to them. In Rex v. White & Ward, 1 Burr. 337, Lord Mansfield says: “ It is not necessary that the smell should be unwholesome; it is enough if it renders the enjoyment of life and property uncomfortable ; ” and this rule has, by modern cases, been adopted with much uniformity. Rich v. Barterfield, 2 Carr. & Kirw. 257 ; Walter v. Selfe, 4 E. L. & Eq. Rep. 15.

A man cannot destroy the comfort of another’s dwelling by placing a brick or lime kiln, or distillery, so near to his premises as to annoy him by the smoke and stench. The court has frequently protected a man in such cases, in the enjoyment of his property, and will enforce the maxim — sic utere tuo, ut alienum non lasdas.

It was said by the complainants’ counsel in argument, that the case pending in the court of law did not fairly present the issue between the parties to this suit; that in consequence of the frame of the pleadings, the most important facts are excluded from the consideration of the jury. If this is made to appear to my satisfaction, I shall feel it my duty to relieve the complainants of any such embarrassment, in having the matter fairly investigated, and will direct an issue for the purpose.

There is a feature in this case which may cause some difficulty. Several complainants have united in this bill. To this there is no objection, if the nuisance is common to all. For instance, if it is the noxious fumes and smoke proceeding from the manufactory which are the occasion of the grievance, this grievance is a common one. But there is an injury proceeding from the use of the steam-engine which affects Mr. Durant and one other of the complainants only. Mr. Durant’s two dwelling-houses are so connected by intervening walls with the building in which the machinery is worked, as to cause a perceptible jarring of the dwellings, and a rattling of the doors, windows, mantle ornaments and loose articles of furniture. But this is not a common injury to the complainants. They have no right to make a joint complaint of any injury except one common to all. Can the facts of particular injuries, confined to one or two of the complainants, be taken into the account in adjudging whether the subject complained of is, or is not, a nuisance?

In the case of Catlen and others v. Valentine, 9 Paige Ch. R. 575, where the bill was filed by several complainants, the nuisance complained of was a slaughter-house. The court, in their decision, went upon the ground that a slaughterhouse, in a city, is prima facie a nuisance. The nuisance was a common one. It was not necessary to show any particular injury to private property. In this case, the business of the defendants is not prima facie a nuisance, though carried on in a densely populated city, unless the proposition can be maintained that the use of a steam-engine is prima facie a nuisance, on account of its danger to life from explosion. There may be circumstances where even the noise of a steam-engine may become a private nuisance, and its use, oii that account, be restrained by the court. The authorities are abundant to sustain the position that an individual cannot erect, in a densely settled portion of a city or town, occupied by private dwellings, any kind of manufacturing establishment, and so use the machinery and carry on the business as to render living in the neighborhood uncomfortable, either on account of the noise it occasions, or of its smoke and offensive smells.

Where several complainants unite in a bill of this kind, the injury or grievance complained of must be common to all. The several complainants cannot unite their distinct and individual causes of complaint, and by their combination make a case of nuisance, which separately would not establish the complaint.

The injunction is refused, but with liberty for the complainants to apply for an issue, if they see fit, as before intimated.

Cited in Ross v. Butler, 4 C. E. Gr. 301; Duncan v. Hayes & Greenwomod, 7 C. E. Gr. 27.


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    Samuel Mullen v. Edward Jennings.
    1. An injunction will be dissolved where the bill shows no neoessitv for the court’s affording the complainant such protection. The power to restrain by injunction is confided exclusively to this court, and should be exercised with caution, and' only where there is a necessity for it. An individual ought not to be restrained by this court in the exercise of any legal right, unless the ends of justice require.it.
    2. The complainant alleged that in pursuance of an agreement between the defendant and himself, the defendant delivered him a deed for a certain property, and that under the deed he entered upon and continued in the possession of it; and that the complainant delivered to the defendant a deed for another property, which the defendant accepted and took possession under it; and the ground of complaint was that the property conveyed to the complainant was encumbered to a larger amount than the sum stated by the defendant when the bargain was made, and that the defendant refused to pay a sum which he had agreed to pay in the exchange of properties. The relief asked is that the defendant be decreed to pay the sum agreed upon, with interest, from the time of the exchange of deeds, and to pay off the additional encumbrance. The bill then prayed for an injunction and obtained it, enjoining the defendants from entering the property conveyed to the complainant, and from granting, encumbering or interfering in any way with it; and further, from exercising . any acts of ownership on the same; or from selling or disposing of the property conveyed to him by the complainant, or from granting, bargaining, selling or encumbering it, or in any manner impairing the value of any other property now in the defendant’s possession or under his control.
    3. There being no allegation that the defendant was insolvent, or embarrassed, or unable to respond to any amqunt the court might decree him to pay ; or that the complainant had not an adequate remedy on the covenants in the defendant’s deed to him, it was held that the injunction was too broad, was not necessary to enable the complainant to obtain the relief asked, and must be dissolved.
    This cause was heard before the Chancellor, May Term, 1852, on motion to dissolve the injunction, which had been granted on filing the bill.

      P. D. Vooom, for complainant.

      J. Parker and Wm. L. Dayton, for defendant
   The Chancellor.

The defendant moves a dissolution of the injunction which was granted on filing the bill, and has read his answer in support of the motion.

There were very important principles of law and equity discussed on the argument, and which perhaps it will be necessary to determine in a final settlement of the case. I can, however, determine the motion now before me without committing myself upon the questions referred to; and I prefer doing so, as the counsel will be afforded a better opportunity of aiding me by their researches and argument in forming my judgment upon the final merits of the case.

Upon the case made by the bill, I do not see the propriety of the injunction.

The complainant’s allegation is, that in pursuance of the agreement between defendant and himself, the defendant delivered him a deed for the Mannahawldn tavern property, and that under the deed he entered upon, and continues in the possession of it; and that the complainant delivered to the defendant a deed for the property on the Long Beach, which the defendant accepted, and took possession under it. His ground of complaint is, that the Mannahawkin property, insfead of being encumbered for five hundred do.llars only, as the defendant alleged, when the bargain was made, is encumbered for sixteen hundred dollars; and that the defendant refuses to pay him fifty dollars, which was a sum he was to pay in the exchange of properties.

The relief he asks is, that the defendant may be decreed to re-pay him the fifty dollars, and interest from the time of the exchange of deeds, and also to pay off and discharge the mortgages over and above the five hundred dollars.

He then prays for, and obtains an injunction, enjoining the defendant, his attorneys, &c., to desist and refrain from entering the tavern-house and lot for any purpose whatsoever, or from granting, encumbering or interfering in any way with the said tavern-house; and further, from exercising any acts of ownership over the same, or from selling or disposing of the Long Beach property, or from granting, bargaining, selling, encumbering, or in any way impairing the value of any other property now in the defendant’s possession or under his control, in the mortgages referred to.

"What need is there of an injunction to prevent the defendant from entering the tavern-house and lot? There is nothing in the bill showing the propriety of such'an injunction — no allegation that he has made any attempt or threats to do so. The complainant has the defendant’s deed for the property, and is in possession under it. It is not shown that at law he cannot protect his possession under that deed, or why the aid of this court is required to enable him to do so. Why, then, should the extraordinary powers of this court be invoked for the purpose?

Why should the defendant be restrained from selling or encumbering the Long Beach property ? According to the bill he is in possession under the deed of the complainant, and put in possession by the complainant.

All the relief the complainant seeks is that the defendant may be decreed to pay the complainant the fifty dollars, and clear the Mannahawkin property of the" encumbrance over five hundred dollars. 1'f he obtains his relief, it does not, in any way, affect the Long Beach property. It is true, by enjoining the defendant from selling or encumbering this property, may better enable him to pay.to the complainant such amount as may be required, if such shall be the decree, to pay off the encumbrances on the Mannahawkin property. If the injunction can be allowed for such a purpose it might with equal propriety restrain' him from selling all his property, both real and personal. The bill is not filed with the view of annulling the contract and compelling the defendant to re-convey this property. There is no allegation that the defendant is insolvent or embarrassed, or unable to respond' to any amount this court may decree him to pay; or that the complainant has not an adequate remedy in the covenants in the defendant’s deed to him.

It was rather conceded on the argument that the injunction was too broad, but the propriety of protecting the complainant in the possession of the Mannahawkin property was urged.

As I have stated, the bill shows no necessity for the court’s affording him such protection.

It is true such injunction might do no harm. But this is a power which, by law, is confided exclusively to this court, and should be exercised with caution, and only where there is necessity for it. An individual ought not to be restrained by this court, in the exeroise of any legal right, unless the ends of justice require it.

The injunction must be dissolved, the costs to abide the event of the suit.


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    George Cornelius and Christian D. Emson, complainants, v. John Post and Samuel Reed, defendants.
    1. The power of injunction committed to this court, is a delicate and a most important power, and should always be exercised with caution, to prevent, not to do mischief; to protect and sustain, not to render the enjoyment of rights and property uncertain; to put an end to, not to encourage litigation.
    ' 2. This court has the power, and will interpose, not to stay a mere trespass, which can be redressed at law, but to prevent the destruction of the inheritance; and it will do this though the title is in dispute, and even where the possession is in dispute, as is frequently the case as to extensive tracts of unimproved lands.
    3. The case of West v. Walker commented on and approved.
    4. Where the bill stated that in May last the defendants commenced cutting, and that the complainants “believe” that the defendants had threatened and intend to cut down and take away “very large quantities of the wood,” &c., it was held that the extent of the injury, done and threatened was not so stated that the court could judge whether the mischief was such as to require and justify its interference, and that the court, would have dissolved an injunction, under such circumstances, without putting the defendant to the expense of an answer.
    5. Where the title of both parties to a tract of unenclosed land in dispute — both claiming the title, and both the possession — had been spread upon the record, it was held that, while this court would not undertake to decide which title sh'ould prevail at law, there might be manifest propriety in declaring one of them of such a character as to render it unwise for this court to exert its extraordinary powers in prohibiting the exercise of acts of ownership under it.
    6. So, where the defendants answered that those claiming under the adverse title had controverted, both at law and in equity, in various ways, the title of the defendants; that the dispute had been a fruitful source of lawsuits for fifteen years, and that the defendants have always maintained their title so far as was necessary for their success in any controversy, the defendants showed a title and possession under it, of such a character as would not justify the court in enjoining them from acts of ownership under it.
    7. The rule as to the effect of new matter in an answer on a motion to dissolve, is that where the answer admits the equity of the bill, but sets up new matter for defence, on which, alone, the defendant relies for dissolution, the injunction will be continued to the hearing.
    This cause was heard before the Chancellor at Trenton^ July 3d, 1852, on motion to dissolve the injunction, which had been granted on an order of one of the masters.

      The bill alleged that the complainants are now, and have been since the second day of July, 1849, the owners and possessors of an estate of inheritance in fee simple in a certain tract of land covered with pine wood, situate in the county of Monmouth, containing thirteen hundred and ninety-two acres and four hundredths of an acre of land. They claim title under and by virtue of a warrant from the Council of Proprietors of East New Jersey; and allege that the said tract is valuable chiefly on account of the wood and timber, and is unenclosed.
    They complain that the defendant, under some pretended survey under the West Jersey Proprietors, in May last, entered upon the tract and commenced to cut down the timber and wood, preparatory to taking the same to market, and that they threaten and intend to cut down and take away large quantities of wood and timber growing on the said tract. The bill further states that the complainants have commenced an action of trespass against the defendants, and that they are informed and believe that the defendants are persons of but little property, and will be unable, to respond in damages for the injury.
    The defendants, in their answer, claimed title under the Council of Proprietors of West Jersey, and also by possession under that title, for more than forty years.

      Messrs. Stratton and Ten Eyck, for motion, cited 1 Johns. Ch. Rep. 317, Stevens v. Beekman; 4 Ib. 21, Storn v. Mann ; 7 Ib. 317, Jerome v. Ross; 2 Green’s Ch. Rep. 279, West v. Walker; 3 Ib. 177, Shreeve v. Black; 3 Ib. 449, Kerlin v. West.

      Messrs. Vredenburgh and Vroom, contra.

   The Chancellor.

The complainants obtained an injunction, on an order of one of the masters, restraining the defendants from cutting timber on a tract of land covered with pine wood, situate in the county of Monmouth, and containing thirteen hundred and ninety-two acres and four hundredths of an acre of land. The complainants allege that they “are now, and have been since the second day of July, 1849, the owners and possessors of and in ah absolute and indefeasible estate of inheritance in fee simple in the said tract; that they claim title under and by virtue of a warrant from the Council of Proprietors of East New Jersey, to lay out and survey for Samuel C. Newell, Thomas De Bow and Francis W. Brinley, or the survivors of them, ten thousand acres in any part unappropriated in the county of Monmouth, dated the 20th May, 1835, under which was returned, on the 27 th August, 1835, to said Newell, De Bow and Brinley, among other lands, the tract in question; that by sundry mesne conveyances under this location and survey, the complainants claim their title ; that the said tract is wood-land, chiefly of pine, and that the soil being of very little value, the tract is valuable chiefly on account of the wood and timber, and is unenclosed.

The trespass complained of is, that the defendants, under some pretended survey under the West Jersey Proprietors, in May last, entered upon the tract and commenced to cut down and coal the timber and wood, preparatory to taking the same to market, and that they threaten and intend to cut down, coal and take away very large quantities of wood and timber growing on the said tract.

The bill states that the complainants have commenced an action of trespass against the defendants, and that they are informed and believe that the said defendants are persons of but little property, and will be unable to 'respond in damages for the injury.

That this court has the power to interfere and prevent the destruction of property, by stripping it of buildings, wood, or of anything else constituting its principal value, I have no doubt.

The conflict, in the numerous cases upon the subject, is not as to the right of the court to exercise its powers in cases of alleged trespass or waste, but the circumstances under which its jurisdiction should be exercised. The cases all agree that if the injury is irreparable, or if it amounts to a destruclion of the principal value of the property, and the circumstances of the wrong-doer are such that he cannot respond for the injury he is committing, then the court ought to interfere, as a general rule, to prevent irreparable mischief.

The principles laid down by the Chancellor, in the case of West v. Walker, 2 Green’s Ch. Rep. 280, do not, I think, conflict with this view as to the proper exercise of the restraining power of the court. The Chancellor approves and adheres to the general principle that the court cannot interfere in a naked trespass, where there is a full remedy at law, and that there must be something particular in the case, so as to bring it under the head of quieting possession, or to make out a case of irreparable mischief, or where the value of the inheritance is put in jeopardy. He decided that case, not on the ground, as was insisted by the counsel of the defendants in this ease, that this court will not protect the extensive tracts of unenclosed pine wood-land from depredation and total destruction; for he expressly says, “ I do not discover in it (the case) any of those peculiar circumstances which will j ustify me in taking it out of the general rule.”

The court has the power, and will interpose, not to stay a mere trespass which can be redressed at law, but to prevent the destruction of the inheritance; and it will do this though the title is in dispute, and even where the possession is in dispute, as is frequently the case as to the extensive tracts of unimproved lands.

But every case must be judged by its own circumstances. The discretion of the Chancellor is appealed to. The power of injunction committed to this court is a delicate and a most important power, and should always be exercised with caution — to prevent, not to do mischief — to protect and sustain, not to render the enjoyment of -rights and property uncertain — to put an end to, not to encourage litigation.

With the ease before me I have no difficulty. The injunction ought not to have been granted. There is not a circumstance stated in the bill which takes it out of the case of an ordinary trespass.

How is the injury already committed, or threatened, charged in the bill ?

It is alleged that, in May last, the defendants commenced cutting. What quantity have they cut? what injury have they done ? And again: they threaten and intend, as the complainants believe, to cut down, coal, and take away very large quantities of the wood and timber. The complainants “believe” they have made these threats, not that such declarations were made by them to the complainant. And then those “ threats” were to cut “ very large quantities of the wood,” not to strip the whole, or any large portion of the land, of the wood which constitutes its value. One hundred cords may, in the estimation of the complainants, be a very large quantity. But the extent of the injury done, and threatened, must be so stated that the court may judge whether the mischief is such as requires and justifies its interference.

I should have dissolved this injunction without any hesitation, upon an application for the purpose, without putting the defendants to the expense of an answer.

But the defendants have answered the bill, and I deem it proper to notice the answer for the reason that this same title to the tract of land in controversy has been before this court several times; and my view of the case, as the pleadings now before me present it, may prevent any further appeal to this tribunal.

The defendants, in their answer, claim title under the Council of Proprietors of West Jersey, and also by possession under that title for more than.forty years.

Prom the mere fact of their setting up title in themselves and possession of the tract of land in.dispute, I would not dissolve the injunction. In a tract of unenclosed land like this, both may claim the title, and both the possession, the possession being very equivocal and established by occasional acts of ownership only.

Nor would I undertake to decide in whom the legal title is. But where the title of both parties is before me — each party undertaking to spread upon the record their respective titles — while T ought not to undertake to decide which title should prevail at law, there may be manifest propriety in my declaring one of them of such a character as to render it unwise for this court to exert its extraordinary powers in prohibiting the exercise of acts of ownership under it.

In this case, the title of the complainants is under the West Jersey Proprietors. The warrant was issued in 1835, and the survey and location made, part in 1835 and part in 1840. The complainants purchased in 1849. The location was made in a range of land which has been for many years a subject of dispute, and of numberless lawsuits in the courts of Hew Jersey. The validity of the title depends upon the question as to where is the true division line between East and West Hew. Jersey.

The complainants, or those under whom they claim, it is not alleged have ever exercised any acts of ownership or possession in any way.

The defendants’ title is under the West Jersey Proprietors. The survey and return were made to William Griffith, Esq., in 1809, and the land in question is included in this survey, known by the name of the Griffith survey. The complainants allege that Mr. Griffith, and those claiming under him, have, under this title, exercised acts of ownership over the land — have sold and cut off large quantities of timber; that under one of the owners upwards of five hundred acres were cut off, and that the title was not disputed until the location was made under the East Jersey Proprietors, in 1835. The defendants show that those claiming under this adverse title have controverted, both at law and in this court, in various ways, the title of the defendants that this dispute has been a fruitful source of lawsuits for fifteen years, and that the defendants have always maintained their title, so far as was necessary for their success, in every controversy. It appears that abundant opportunity has been afforded, if not to these complainants, to those under whom they claim, of establishing their title at law.

I think the defendants show a title, and possession under it, of such a character as will not justify the court in enjoining them from acts of ownership under it.

The defendants, by their answer, further show that, in 1835 and 1836, Cornelius, one of the complainants, cut a large quantity of wood and timber on the Griffith survey ; that he subsequently admitted that he had trespassed on the land of Samuel I. Reed, under whom the defendants held; that an arbitration was had between the parties, not as to the title, but as to the amount of damages, which resulted in an award in favor of Reed, of upwards of sis hundred dollars, and which sum Cornelius paid.

The complainants’ counsel insisted that most of these facts constituted new matter, which should not be relied upon by the court on a motion to dissolve.

The rule as to the effect of new matter in an answer on a motion to dissolve is not as bad as stated by the counsel. The rule is that, when the answer admits the equity of the bill, but sets up new matter for defence, on which alone the defendant relies for dissolution, the injunction will be continued to the hearing.

But most, if not all, of the matters I have referred to in the answer in this case may, I think, be fairly considered as responsive to the bill. The bill charges that the defendants entered upon the land under q pretended survey from the West Jersey Proprietors. It was proper, then, that the defendants should set forth their title, and possession under it, and all the facts and circumstances going to show how that possession was asserted, maintained, and in what manner, if at all, recognized and acknowledged by the complainants. Let the injunction be dissolved, and the bill be dismissed with costs.

Cited in Carlisle v. Cooper, 6 C. E. Gr. 584.


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    Joseph E. West v. Thomas Paige.
    1. Tlie mere filing of a replication is not a compliance with a rule to speed the cause.
    2. In the absence of any established practice or rule in our own court to the contrary, we follow the English practice in all cases whore such practice is not rendered inapplicable by some statutory provision, or does not violate the spirit of our statutory regulations.
    3. The statutory provision which requires that every cause shall be set down for hearing at the next stated term after the filing of the replication, renders the English practice in this case inapplicable.

      4. Where, on the 20th May, the defendant took an order on the complainant to speed his cause, and the order was served on the day following, and on the 22d the complainant filed his replication and took no further step in the cause, it was held that the defendant was entitled to have the bill dismissed at the next stated term, because the complainant had not, in compliance with the statute, brought his cause to a hearing at that term.
    This was a matter of practice, which was heard at the October Term, on motion to dismiss the bill.

      Mr. Browning, for motion.

      W. Halstead, contra.

   The Chancellor.

On the twentieth of May last past, the defendant took an order on the complainant to speed his cause. The order was served on the day following, and on the twenty-second day of May, the day after service, the complainant filed his replication.

On behalf of the defendants, it is now moved to dismiss the bill, on the ground that the mere filing of a replication is not a compliance with the rule to speed the cause.

It was said, on the argument, that Chancellor Pennington decided that the filing of a replication, without taking any further step in the cause, was not a compliance with the rule.

This is stated from mere recollection, and no record is referred to of such a decision. I think, however, such a decision, if made, was upon correct principles.

In the absence of any established practice or rule in our own court to the contrary, we follow the English practice, in all cases where such practice is not rendered inapplicable by some statutory provision, or does not violate the spirit of our statutory regulations.

The statute regulating the practice of this court, (R. S., page 912, sec. 45,) renders the English practice, to the point in controversy, inapplicable.

The statute referred to entitles the defendant to have this bill dismissed, because the complainant has not, in compliance with that statute, brought his cause to a hearing at the present term of the court.

The court may, on just cause and reasonable terms, allow further time for the hearing; and I am willing now to hear such application, if the complainant's counsel desires to make it.

Cited in Schenck y. Conover, 2 Beas. 33; Ratzer v Ratzer, 2 Stew. 163.


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    Jackson & McGinnis v. The Receivers of the People’s Bank of Paterson.
    1. The language of the seventeenth section of the act to prevent frauds by incorporated companies (S. S. 135), giving the right of appeal to any person or persons who should think himself or themselves aggrieved by the proceedings of the receivers appointed under the act, is very comprehensive, and would seem to have been adopted for the purpose of embracing every question which could possibly be brought before the receivers for their action.
    2. And the right of appeal is not confined to a creditor who has a naked claim against the company, but extends to questions where a set-off is involved.
    3. So, where parties applying to receivers appointed by this court for a settlement of their accounts with a bank, admitted that the bank held their promissory note, hut claimed a set-off, and insisted that the bank was largely indebted to them for interest money, commissions, &c., and the receivers decided upon the accounts of the respective parlies, and refused to allow the set-off, it was held that they were “parties aggrieved” by the determination of the receivers, and they could not be denied the right of appeal given them by the statute.
    4. The appellant, in his petition of appeal, should state his case fully, and the particulars in which he is aggrieved. By the answer of the receivers, the issue will he formally made between the parties. If the facts are controverted, proof can he taken in the ordinary way.

      5. The practice of the court settled in like eases, until otherwise ordered.
    This was a matter of appeal from receivers. It was heard at, October Term, 1852, on motion to dismiss the appeal.

      A. Whitehead moved to dismiss the appeal, on the ground that it was a matter from which an appeal would not lie, and relied upon the statute. R. S. 129, §§ 11, 12, 13, 15, 17.
    P. D. Vroom, contra, cited Suydam v. M. Bank of N. B., 2 Green’s Ch. R. 114; S. C., 277; Runyon v. Farmers’ and Mechanics’ Bank of New Brunswick, 481.
   The Chancellor.

On the argument of this motion, I intimated, as my impression, that this was a case not con-temp] a tec! by the statute which gives an appeal from the receivers to the Chancellor. But, on examination of the different sections of the act, I am satisfied that this appeal will lie, and that the cases of Suydam v. The F. and M. B. of N. B., and Runyon v. Same Bank, are authorities to sustain this appeal.

The language of the seventeenth section of the act is very comprehensive, and would seem to have been adopted for the purpose of embracing every question which could possibly be brought before the receivers for their action, and by which action any person could complain of being aggrieved. The section referred to gives the right of appeal to any person or persons whatever, who should think themselves or himself aggrieved by the proceedings or determination of the said receiver or receivers, or trustees, in the discharge of their duty; and the Chancellor is to hear and determine the matter complained of in a summary way, and make such order touching the same, as shall be equitable and just.

The counsel for the receivers insists that this right of appeal is confined to the proceedings and determination of the receivers, in reference to a. creditor who has a naked claim against the company, and presents it for a dividend, or other cause, where a person claims to be a creditor of the company, and to come in for a dividend of its assets, for a balance alleged to be due him ; and it is necessary, in order to ascertain the amount due, and entitle the creditor to come in for a dividend, that the dealings and transactions between him and' the company should be adjusted by the receivers. That these matters being necessarily submitted to the determination of the receivers, and their determination binding, an appeal lies to the Chancellor, and in no other cases.

The receivers insist that it appears by the appeal that the claim of Jackson & McGinnis is not presented for a dividend, but only in diminution of a larger demand held by the receivers against them, against which they require the receivers to allow and set off their demand.

That where the question of a set-off is involved, and as in this very case, the receivers claiming that there is a large amount due from the claimant to the bank, and denying altogether the legality of the claims he presents; or in any other case where the receivers hold a promissory note, or any other evidence or claim of debt, against an individual, no appeal can be taken from their decision disallowing such set-off or claim.

The argument is, that in the case of a naked creditor, the decision of the receivers is conclusive upon the rights of the parties — the creditor having no right to institute a suit at law against the receivers, he has no redress but by appeal to the Chancellor, while in the case of a debtor, their decision has no binding efficacy — they cannot enforce their decision, but must prosecute the debtor upon the original contract. The argument only proves that the debtor may possibly have some advantage in this respect.

In this case Jackson & McGinnis appealed to the receivers for a settlement of their accounts with the bank. They admit the bank holds their promissory note; they claim a set-off, and insist the bank is largely their debtor for interest money and commissions; and they further present for allowance the bills of the bank to a large amount. The receivers decide upon the accounts of the respective parties, and they refuse to allow the set-off; and their determination is, that they will prosecute Jackson & McGinnis, and put them to establishing their counter claims in a suit at law. Are they not, in the very terms of the statute, “ parties aggrieved ” by this determination of the receivers ? Is it any sound reason that they should be denied the right of appeal given them by the statute, because they may, notwithstanding the decision of the receivers, is adverse to their claims, set them up in a suit at law ?

Jackson & McGinnis, by this appeal, have submitted to the jurisdiction of the Chancellor, under the statute, and the Chancellor, being vested by the act, in the execution of the powers and authority conferred by it, with all the jurisdiction and power which is lawful for the Court of Chancery to exercise in suits depending in the court, will so mould the proceedings as to make the decision binding and conclusive on the parties, except so far as that decision may be subject to an appeal to a higher tribunal. In the same section which gives this right of appeal, it is declared that all cases brought before the Chancellor under this act shall be considered as depending in the Court of Chancery, and the orders and decisions carried into effect the same as in other causes of equity juriádiction.”

It was further suggested on the argument that there were great embarrassments in conducting the proceedings of an appeal in a case like this — that there are no proceedings or determination of the receivers recorded or reduced to writing, and consequently nothing to be sent up to the Chancellor as the foundation for any further proceedings. But as this whole matter is under the control of the Chancellor, there can be no difficulty in adopting such proceedings as may be requisite to answer the ends of justice and the object of the statute.

The appellant, in his petition of appeal, should state his case fully and the particulars in which he is aggrieved. By the answer of the receivers to the petition, the issue will be formally made between the parties. If there is no dispute as to the facts the case will be decided upon these pleadings. If the facts are controverted, proof can be taken in the ordinary way, and the matter be brought to a hearing and final determination, according to the usual practice in similar cases. It is one of those cases where the court will provide for the difficulties as they arise. The object of the statute will be attained, by disposing in a summary way, and with as little expense as possible, of all controversies which may retard the final settlement of the affairs of the insolvent institution.

As this is a new case, let the appellants amend their petition of appeal, if it be necessary, so that their whole case be fully presented — let a copy of the petition be served on the receivers, with an order to answer in twenty days — and let the petitioners bring the appeal to a final hearing within thirty days after answer, and on giving eight days’ notice ; and on failure of the petitioners bringing the appeal to hearing, the receivers are at liberty to have the appeal dismissed, or to notice the same for hearing, at their option. Let this be considered as the practice of the court in like oases, until otherwise ordered.