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 V 
 
 
 
 
 
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 REPORTS 
 
 CASES DETERMINED 
 
 
 COURT OF CHANCERY, 
 
 j^.- 
 
 STATE OF MICHIGAN. 
 
 •^■ 
 
 
 BY E. BURKE HARRINGTOx\, 
 
 f;X'/ COU^-rSBLLOR AT LAW. 
 
 DETROIT: 
 
 FAeC AND HARMON, PRINTERS. 
 
 1845.
 
 Vi\k>;*\\ \\ 
 
 v.- -J ^ 
 
 » 
 
 Enlered according to Act of Congress, la the ywr 1846, 
 
 By Henry N. Waiker, 
 
 In th« CletK's office of Iho District Court of tlia District of Michigan 
 
 'r*: 
 
 P 
 
 ■■'4- 
 
 ^ 
 

 
 
 CASES 
 
 <r 
 
 _5» 
 
 ARGUED AND DETERMINED 
 
 CO 
 
 IS THE 
 
 COURT OF CHANCERY, 
 
 
 FOR THE 
 
 STATF, OF MICHIGAN. 
 
 
 ELON FARNSWORTH, Chancellok.
 
 \
 
 P il E F A C E . 
 
 The volume which is now presented to the public contains all the 
 decisions made by the Hon. Elon Farnsworth whileacting as Chancel- 
 lor, which have been preserved. Prior to the year 1830, there was no 
 Court of Equity distinct and separate from the courts of law. The Or- 
 dinance of Congress of 1787, for the government of the Territory 
 Northwest of the River Ohio, did not establish a distinct and separate 
 tribunal for the exercise of powers usually conferred upon Courts of 
 Chancery. Neither did it vest in the courts of law any authority to 
 exercise such powers. The provision relative to the legislative pow- 
 er, authorized the Governor and Judges, to adopt such laws of the 
 original states as might be necessary and best suited to the circunf- 
 stances of the district, which were to be in force unless disapproved 
 of by Congress. Among the earliest acts of the Territorial Govern- 
 ment of Michigan, was one relative to the jurisdiction of the courts, 
 which was passed July, 180.5, and declared that the Supreme Court 
 should have original and exclusive jurisdiction in all cases, both in 
 law and equity, where the title of lands was in question, but no suit 
 in equity should be sustained in any case when adequate remedy 
 could be had at law. The same statute provided that '♦ on the trial 
 of cases in equity, oral testimony and the examination of witnesses 
 in open court should be admitted. " In 1820 the Governor and Judg- 
 es, who were still vested with the legislative power, passed an act di- 
 recting the mode of proceeding in suits in Chancery. By this law 
 the County Courts of the several counties were invested with juris- 
 diction in all cases properly cognizable in a Court of Chancery, in 
 which plain, adequate, and complete remedy, could not be had at law, 
 where the title to land was not in question, and when the sum or 
 matter in dispute did not 'exceed the sum of one thousand dollars; 
 and the Supreme Court had jurisdiction in all cases where the ti- 
 tle of lands was in question, and where the sum, or matter in dis-
 
 iv PREFACE. 
 
 pute exceeded tJie sum of one thousand dollars. The Supreme 
 Court had also appellate jurisdiction in all cases heard and determin- 
 ed in the County Courts. 
 
 In 1823, some doubts having arisen as to the powers of the 
 courts, Congress passed an act declaring " that the powers and 
 duties of the judges of the said Territory should be regulated by 
 such laws as are, or may be in force therein, and the said Jud- 
 ges shall possess a Chancery, as well as common law jurisdiction. " 
 In 1827, the laws of the Territory were revised, and the Circuit 
 Courts, which had been organized, obtained concurrent equity juris- 
 diction with the Supreme Court, subject however to an appeal there- 
 to, and were invested with the exclusive power of deciding appeals 
 from the County Courts. It was provided by the law of 1827, that 
 proceedings in Chancery " when they are not regulated by the stat- 
 utes of this Territory, shall be regulated by the judges thereof, con- 
 forming to the rules and proceedings established by Courts of Chan- 
 cery in England, so fur as the same shall be consistent with the laws 
 and constitution of the United States and the laws of the Territory of 
 Michigan. " In 1833, the laws were again revised, but no material 
 alteration was made relative to the mode of proceeding in suits in equity. 
 By the constitution of the State, adopted in 1835. the judicial 
 power was vested in one Supreme Court and in such other courts, as 
 the legislature might from time to time establish. At the first ses- 
 sion of the state legislature a separate tribunal was created, which was 
 invested with all the equity powers pre\ iously conferred upon the 
 several territorial courts, and in July, 1836, Elon Farnsworth Esq., 
 of Detroit, was appointed Chancellor. Mr. Farnsworth continued to 
 perform the duties of Chancellor with great satisfaction to the public 
 and the members of the bar, until March, 1842, when he was com- 
 pelled to resign the office on account of his health. During the time 
 Mr. Farnsworth was Chancellor, the practice of the court was regu- 
 lated by a well digested system of rules prepared by him, which are 
 published with the present volume. 
 
 In 1833 provision was made by law for the appointment of a Ke- 
 porter of the decisions of the Court of Chancery, and in February, 
 1839, E. Burke Harrington, Esq., received the appointment and en- 
 }ered upon the duties of the office. About one half of the present
 
 PREFACE. Y 
 
 volume was publislied under his immediate supervision, in January, 
 1841. Tiie destruction by fire of the printing office, with a portion 
 of the manuscript prepared for the press, suspended tlic publication 
 for a time, and the repeal of the law soon after effectually put a stop 
 to the work until 1844, when the legislature passed another act re- 
 quiring the judges of the Supreme Court, and Chancellor, to appoint 
 a Reporter of the decisions of these courts. Mr. Harrington receiv- 
 ed the appointment, under the last act, and continued to perform the 
 duties of the office until his decease in August, 1844. The last half 
 of the present volume was then partially in press, and almost wholly 
 prepared by him. The undersigned was appointed to fill the vacan- 
 cy occasioned by the death of Mr. Harrington, and has superintended 
 the publication from his manuscript since that time. 
 
 The decisions of the Court are in all cases given as they were de- 
 livered in H-riting at the time, or prepared by the Chancellor from 
 his notes. A second volume of the decisions of the Court of Chan- 
 cery commencing with the appointment of Chancellor Manning, is 
 now in press, prepared bv the undersigned, and will be published du- 
 ring the ensuing year. 
 
 in^^NRY N. WALKHK, 
 
 Detroit, November 30, 1844.
 
 TABLE OF CASES REPORTE D. 
 
 The lelier v follows llie Complainants' name. 
 
 A. Page. 
 
 At\v;iicr, v. Kimnan, 243 
 
 Aldcn, Cooper, v. ^'^ 
 
 Allen, Connor, v. 371 
 
 Aucrbury, I'ayne, v. 411 
 
 Ankrhn, v. "Wooilvorth, 355 
 AUorney General, v. Bank of Micliigan, ai5 
 
 B. 
 
 Bank Coniini#sioners, v. Bank of Brest, 10(5 
 Bank of Brest, Bank Commissioners, v. lOb 
 
 Bunk of Michigan, V. Williams, 219 
 
 t<anic, Wales v. 30i- 
 
 Same, Attorney General, v. 315 
 
 Bank of I'ontiau, Barnum, v. 116 
 
 Bank of Wind.-^or, Pratt v. 254 
 
 Barnes, Kellogg, v. 258 
 
 Barnum, v. Bank of Pontine, 110 
 
 Barton, JMcl/Can, V. 27!) 
 
 Barrows v. Doty, 1 
 
 Eaten V. Garrison, 2-2 1 
 
 Beaiibicn, v. PoupartI, 2tl() 
 
 Bernard v. Bougard, 130 
 
 Bennette, MeMurlrie. v. 124 
 
 Brown, v. Gardner. 201 
 
 Brown, v. Whipple, v. 430 
 
 Boniier, V. Caldwell, 6' 
 
 Bougard, Bernard, v. iM 
 
 Burtch, V. Hogge, 31 
 
 C. 
 
 Fay, V. Eric & Kalamazoo Uailroad Bank, 
 Fanners' &. Mechanic's Bank, Carroll, v. 
 Freeman, v. Michigan Stale Bank, 
 
 F 
 
 Page 
 
 G. 
 
 Graham, v. Klniorc, 
 Gardner, Brown, v. 
 Graves, v. Niles, 
 Garrison, Bates, v. 
 Golf, V. Thompson, 
 
 11. 
 
 Hart, Lapeer County, v. 
 Hawley, v.' Sheldon, 
 llaiinnond, v. Place, 
 Hogge, Burtch, v. 
 Higgins, V, Carpenter, 
 Hulbert, Stafford, v. 
 
 Ingersoll, Kirliy, v. 
 
 J. 
 
 Camp, Kldred, v. 162 
 
 Campbell, Pratt, v. 230 
 
 Clark, V. Davis, 227 
 
 Same, v. Saginaw Cily Bank, 240 
 
 Caldwell, Bomier, v. 67 
 
 Carpenter, Higgins, v. 250 
 Carroll, v. Farmers' & Mechanic's Bank, 197 
 
 Same, v. Van Rensselaer, 225 
 
 Clinton Canal Bank, v. AVheeler, 449 
 
 City of Detroit, Dcvaux, V. 9& 
 
 Connor, v. Allen, 371 
 
 Comstock, Sinclair, v. 404 
 
 «;ook, V. Wheeler, 443 
 Cooper, V. Aldeii, 
 
 1). 
 
 Davis, Clark, v. 
 
 Devaux, v. Cily of Detroit, 
 
 Dcquindre, .Suydam. v 
 
 Detroit City Bank, Mason, v. 
 
 Dislirow, V. Jones, 
 
 Disbrow, Jones, v. 
 
 Doty, Barrows, v. 
 
 Siune, Uowland, v. 
 
 Same, Mack, v. 
 Dow, Street, v. 427 
 
 E. 
 
 Eldred, v. Camp, 102 
 
 Krie &. Kalamazoo Railroad Bank, Fay, v. 194 
 Elmore, Graham, v. " 205 
 
 Jerome, v. Seymour. 
 Same, v. Same, 
 
 Jones, Disbrow, V, 
 Same, v. Disbrow, 
 Same, Livineslon, \ 
 Same, v. AVing, 
 
 K. 
 
 Kellogg, V. Barnes, 
 Kctclinm, Sill, v. 
 King, Wright, v. 
 Kinman, Atwater, v 
 Kirby, v. Ingersoll. 
 
 Lane, Thayer, v. 
 Lapeer County, v. Hart, 
 Liivingston, v. Jones, 
 Loranger, Wadsworth, v. 
 Lyon, Weed, v. 
 
 M. 
 
 227 
 
 ii!; 
 
 347 
 
 22-'' 
 ,jg|Mack, Thompson, v. 
 
 j().) Same, v. Doty, 
 
 JiMcLean, V. Barton, 
 
 y McMiiririe, v. Bennetlc, 
 
 3gy Mason, v. Detroit City Bank, 
 
 Millard, V. Ramsdell, 
 
 Same, Ramsdell, v. 
 
 Michigan State Bank, Frecnmii, v. 
 
 N. 
 
 Niles, Graves, v. 
 
 1!)4 
 1'.I7 
 
 265 
 291 
 332 
 221 
 OU 
 
 157 
 420 
 43i- 
 
 31 
 256 
 
 135 
 
 255 
 357 
 48 
 102 
 J 03 
 301 
 
 258 
 423 
 12 
 243 
 172 
 
 2-17 
 157 
 165 
 113 
 
 303 
 
 ir,o 
 
 .'iCO 
 279 
 124 
 222 
 373 
 373 
 311 
 
 332
 
 Via 
 
 TABLE OF CASES REPORTED. 
 
 p. 
 
 Pratt, V, Canipljcll, 
 
 Same, v. ifank of Windsor, 
 Place, Haimiiond, v. 
 Payne, v, Atlerbury, 
 I'eltier, v. Peltier, 
 I'oupard, Beaublen, v. 
 
 Paije.i 
 
 S. 
 
 R. 
 
 RamsdeU, v. Millard, 
 
 Same, Millard,' v, 
 liowlund, V. Uoty, 
 
 ycliwarz, V. AVendell, 
 
 Sciiwarz, v. Sears, 
 
 Sasinaw City Bank, Clark, v. 
 
 Same, Smith, v. 
 Stafford, v. Hulhert, 
 Steward, v. Stevens, 
 Sears, Sciiwarz, v. 
 Stevens, Steward, v. 
 Street, v. Dow, 
 Sheldon, Hawlcy, v. 
 Seymour, Jerome, v. 
 Seymour, .Terome, v. 
 Swift, Thayer, v. 
 Sjiil, V. Ketchum, 
 Smith, V. Saginaw City Bank, 
 Sinclair, v. Comslock, 
 Stockton, V. Williams, 
 
 13(51 ^'uydaaj, v. Dequiiidre. 
 
 2o4 
 
 438 ^. 
 
 •J^Tate, V. Whitney, 
 19 Thayer, v. Lane, 
 -06| .Same, v. Swift, 
 Torrey, Walton, v. 
 Topliff, v. Vail, 
 Thompson, Goff, v. 
 Same, v. Mack, 
 
 T. 
 
 373 
 
 373 
 
 3 
 
 095 
 440 
 •240 
 426 
 43o 
 169 
 . 440 
 169 
 4-i7 
 420 
 •255 
 357j 
 43(1 
 423 
 426 
 404 
 241 
 
 Van Rensselaer, Carroll, v. 
 Vail, Topliff, V. 
 
 W. 
 
 Walcf, V Bank of Michigan, 
 
 Wadsworlh. v. Loranger, 
 
 Walton, V. Torrey, 
 
 Weed, V. Lyon, 
 
 Wheeler, v. Clinton Canal Bank, 
 
 Same, Cook, v. 
 Wendell, Schwarz, v. 
 Wright, v. King, 
 Wing, Jones, v, 
 Whitney, Tate, v. 
 Whipple, V. Brown, 
 Williams, Bank of Michigan, v. 
 
 Same, Stockton, v. 
 Woodworth, .^nkrim, v. 
 
 Page. 
 347 
 
 145 
 247 
 430 
 2.59 
 340 
 60 
 ISU 
 
 2'2d 
 340 
 
 . 308 
 113 
 259 
 363 
 449 
 443 
 395 
 12 
 301 
 145 
 436 
 219 
 •241 
 355
 
 INDEX 
 
 TO THE RULES OF THE COURT OF CHANCERY. 
 
 OTAe reference is to the numher uf the rule. 
 
 A. 
 
 Absent defendants, reference in case of, 22. 
 Accounts to lie in form of delAor and creditor, 79. 
 
 with banks, how kept, 90. 
 Address of petitions and bills, 6. 
 Affidavits, how to be entitled, 68. 
 
 to be annexed to costs to be taxed, 93. 
 
 to obtain an attachment, when a discovery is prayed for, 18. 
 Agreements between solicitors to be in writing, 87. 
 Agents to be appointed by solicitors, 9. 
 
 when service may be on, 10. 
 
 double time of service on, 11. 
 Amendment of creditor's bUl of course, 110. 
 Amendments to bill when allowed, 29. 
 
 after demurrer, 29. 
 
 after exceptions allowed or submitted to, 30. 
 
 to be of course, without order, 2?. 
 
 not to be of course to' injunction bills, 30. 
 
 eet vice of necessary, 28. 
 
 to sworn bill, how verified, 28. 
 
 statements of, to be filed, 28. 
 Answer, how to be entitled, 68. 
 
 how to be verified, 14. 
 
 on oath, how waived, 25. 
 
 before whom they may be sworn, 20. 
 
 to cross bill when demandablc, 27. 
 
 effect of, when not replied to, 25. 
 
 taken out of the state, how verified, 26. 
 
 to be put in within 40 days, 17. 
 
 further time for, on exceptions submitted to. 42. 
 on exceptions allowed, 43. 
 to be fixed by the master, 39. 
 Appearance, when and where entered, 17. 
 
 on return of attachment served, 19. 
 
 penalty for refusing to enter, 19. 
 Arguments of exceptions to answer, to be heard as a motion, 46. 
 Attachment for not appearing, when to issue, 18. 
 
 neglect to iipjiear on, penalty for, 19. ' 
 
 proceedings on, to compel appearance, 19. 
 
 Vol. I. 1*
 
 ^ INDEX. 
 
 B. 
 
 Bank, accounts wilb, how kept, 80. 
 
 orders on, how drawn, 91. 
 Bills to be addressed to the chancellor, 6. 
 
 to be sworn to if discovery is required, 13. 
 how to be sworn to, 14. 
 by creditors, what to state, 109. 
 may be amended, 110. 
 manner of stating "matters in, 14. 
 
 of non-residents, not to be filed without security for costs, 12. 
 Bills not sworn to, amendable of course, 28. 
 may be amended after demurrer, 29. 
 
 on exceptions allowed, 30. 
 may be dismissed for want of prosecution, 49. 
 of review, not to be filed without leave, 103. 
 for divorce, &c., to be sworn to, 100. 
 to contain special averments, 100. 
 of costs to be furnished for enrolment, 106. 
 for foreclosure of mortgages, how to state incumbrances, 95. 
 order, to deliver a copy of, in 15 days, 20. 
 
 Caption of orders and decrees, form of, 6. 
 
 to state where made, 71. 
 Calendar, how made up, 6!. 
 
 causes may be entered on in term, 65. 
 Case to be furnished at hearing, 63. 
 
 to be not more than one-sixth as long, 63. 
 Charges and discharges to be sworn to, 79. 
 Chancellor, bills to be addressed to, 6. 
 Commissions to examine witnesses of course, 51. 
 Commissions to examine witnesses, adverse party may join in, 52. 
 
 special may be granted, 54. 
 Common order, how obtained, 31. 
 
 Complainant's name to be placed first in title of cause, 68. 
 Complainant, non-resident to give security, 12. 
 to swear to bills if discovery is required, 13. 
 to deliver a copy of bill in 15 days, 20. 
 to refer exceptions in ten days, 35. 
 to serve a copy of rule in creditor's suit, 113. 
 Conveyances not to be executed before enrolment, 83. 
 Copy of bill, order to deliver in 15 days, 20. 
 rule to be served in creditor's suit, 113. 
 Copies of pleadings to be furnished to the court on hearing, 66. 
 by whom furnished, 67. 
 to be paged to correspond with draft, 68. 
 Costs of amendment after answer, 28. 
 demurrer, &c., 29. 
 of exceptions submitted to, to be paid by defendant, 34. 
 for scandal or impertinence, 37. 
 when disallowed, 41. 
 order for further answer and for costs, 43. 
 taxed bill to be served before time for answering expires, 44. 
 of exceptions, penalty for not paying, 45.
 
 INDEX. xi 
 
 Costs to be all included in one bill, 47. 
 
 to be taxed, 118. 
 
 regulated in certain cases, 93. 
 
 may be taxed by master or register, 92. 
 
 not to be paid until taxed bill and affidavit filed, 94. 
 
 when charged on complainant in mortgage causes, 95. 
 
 of false claims to overplus on sales, to be paid by claimant, 97. 
 
 to be filed in 20 days after taxation, 94. 
 
 to be verified by oath on taxation, 93. 
 
 inicrlocutory to be paid in '20 days, 104. 
 
 to be furnished for enrolment, 100. 
 
 to be filed in 15 days for enrolment, lOG. 
 
 forfeited if not furnished before enrolment, 107. 
 Counsellors to be examined and licensed, and how, 7. 
 
 who are entitled to examination as, 8. 
 Creditor's bills, form of, 109. 
 to be sworn to, 110. 
 Creditor's bills, submission of defendant on, 1)1. 
 
 powers of receiver on, 112. 
 
 may be amended of course, 110. 
 
 rule to be served with subpoena in, 111. 
 Cross bill, when to be answered, 27. 
 
 D. 
 
 Date of issue, 64. 
 
 Debtor, when excused from answering. 111. 
 
 Decrees may be entered with register, &c., 71. 
 
 caption of, to state when made, 71. 
 
 to be enrolled before execution, S3. 
 
 for divorce, &c., not granted by default without proof, 105. 
 
 by default at hearing, 69. 
 
 of course for not serving copy of bill, 20. 
 Defaults may beset aside on terms, 69. 
 Defendant when excused from answering, 111. 
 
 arrested on attachment, to enter his appearance, 19. 
 
 may submit to a part of the exceptions, HI. 
 Demurrer for want of parties, amend.nent of course on, 29. 
 
 overruled as frivolous, or otherwise, order on, 33. 
 
 either parly may notice It for hearing, 32. 
 
 how placed on calendar, and in what class, 64. 
 Deposit to be made on a rehearing, 86. 
 
 on filing a bill of review, 105. 
 Depositions to be returned and filed by master in 10 days, .59. 
 
 to be paged, 68. 
 
 how taken before masters on references, 77. 
 Discovery, from defendant, how obtained, 18. 
 Dismissing bill for want of prosecution, 49. 
 Divorce, bills for, to be sworn to, 100, 
 
 reference of, 101. 
 
 matters set up in bar of, how tried, 102. 
 Documentary evidence, not be read without notice, 56. 
 Double time where service on an agent, 11. 
 
 E. 
 
 Enrolment of decrees to be made before execution, 83. 
 Entitling of papers, complainant's na:ne to be p'.aie 1 first, 05.
 
 .ii INDEX. 
 
 Examination of parties, &e., before master, 77. 
 
 accounting Ijeforc a master, 79. 
 Exceptions in injunction cases to filed in 10 days, 23. 
 
 for insulficiency, not iiUovved in certain cases, 25. 
 
 to answer, to be filed in 20 days, 34. 
 
 not submitted to, to be referred In 10 days, 33. 
 
 for scandal or impertinence, how talven, 37. 
 
 maste 's report on, wlien conclusive, 41. 
 
 to be stated on reference of Sd and 3d answer, 36. 
 
 master's report on, when to be procured, 39. 
 when to become absolute, 40. 
 
 to a report on, to be heard as a special motion, 46. 
 
 cobts on, regulated, 46. 
 
 costs on, not allowed in certain cases, 47. 
 Limited to objections lalten before master, 73. 
 
 costs on to be in one bill 47. 
 
 when to prevent motion to dissolve injunction, 24. 
 Exhibits to be produced before master, 56. 
 
 to be returned and filed before hearing, 59. 
 Ex parte applications to be heard on motion days only,2. 
 
 F. 
 
 Fees to be detailed in bills of costs, 93. 
 Foreclosure suits, proceedings in, 95. 
 
 Furlher answer, order for, on submission to exceptions, 42. 
 on report of master, 43. 
 
 G. 
 
 Guardians, ad litem, petition for, by whom presented, 98. 
 not to receive infant's property, 90. 
 
 H. 
 
 Hearing may be noticed by either party, 61. 
 
 on bill and answer, if no replication is filed, 48. 
 
 time of notice of, how regulated, 6-2. 
 
 case to be furnished on, in certain cases, 63. 
 
 of exceptions, to report on exceptions, 46. 
 
 calendar of causes for, how made up. 64. 
 
 to be noticed for first day of term, 65. 
 
 papers to be furnished on, 66. 
 
 who to furnish papers for, 67. 
 
 decrees by default at, 69. 
 
 I. 
 Impertinence, report on, when to be final, 41. 
 Impertinent matter, order to expunge, 41. 
 
 Incumbrances, not to be stated at length in foreclosure suits, 95. 
 Infants, guardian, ad litem, of, 99. 
 
 guardians not to receive property of, 99. 
 Injunctions, elfect of, on creditors bills, 115. 
 Interrogatories to examine foreign witnesses, 53. 
 Issue on filing general replication, 48. 
 
 note of, to be delivered four days before term, 65. 
 
 causes to have priority from date of, 64. 
 
 L. 
 
 License to practice as solicitor, &c., how obtained, 7.
 
 INOKX. xiii 
 
 Master to keep register and enter proceedings therein, 5. 
 
 to report on exceptions in 20 days. 38. 
 
 to fix time for furtlicr answer, 39. 
 
 to file report in iO days after argument, 81. 
 
 to issue summons and fix lime of service, T2. 
 
 may allow another party to proceed on reference, 73. 
 
 may settle order of proceeding, 74. 
 
 may direct as to production of papers, 75. 
 
 may proceed, ex parte, in liis direction, 76. 
 
 may examine parlies, &c., orally, 77. 
 
 to decide finally as to impertinence, 73. 
 
 may proceed on exceptions filed before him, 78. 
 
 may examine accounting party on oatli, 79. 
 
 may allow interest as shall be just, 79. 
 
 may make separate report, 80. 
 
 to fix time for settling report, 81. 
 
 not to convey lielorc enrolment, 83. 
 Money, orders for payment of, 91. 
 Motion days in vacation, when and where held, 1. 
 
 in term, on Monday of each week, 3. 
 Motions to stand over in absence of chancellor, 2. 
 
 to be made on the day of notice, 3. 
 
 special notice of, how to be given, 62, 
 
 to dismiss bill for want of prosecution, 49. 
 
 for reference in divorce causes, 101. 
 Mortgage cases, proceedings in, regulated, 95. 
 
 to have preference, 64. 
 
 reference of course, to compute amount, 96. 
 
 reference as to surplus moneys, 97. 
 
 N. 
 
 Nc exeat, retained till hearing in certain cases, 94. 
 Non-resident complainants to give security, 12. 
 Note of issue, when to be delivered, 65. 
 Notice, when it may be served on agent, 10. 
 
 how served in absence of solicitor, 11. 
 
 when double time required, 11. 
 
 when to be put in post otficc, 10. 
 
 of appUcation for a commission, 51. 
 
 of examination of witnesses, 50. 
 
 of hearing and special motions, 62. 
 
 to attend on reference, time of, regulated, 72. 
 
 of hearing; to be for first day of term, 65. 
 
 of claim to surplus, may be filed, 97. 
 
 of taxation of costs, 118. 
 
 to file cost for enroinjcnt, 106. 
 Nullity of marriage, bill for, to be verified by oath, 100. 
 reference to t.-tkc proof, 101. 
 
 o. 
 
 Oath to bills and answers, 14. 
 Orders of course, when to be entered together, 110. 
 Order for examination of counsellors and solicitors, 7. 
 to take bill as confessed for neglect to appear, 19.
 
 INDEX. 
 
 Order tliat defendant answer in forty days, 21. 
 for absent defendants to appear, 22. 
 
 that defendant's appearance be entered on attachment, 19. 
 on attachment, to take bill as confessed, 20. 
 to deliver a copy of bill in fifteen days, 20. 
 to answer cross bill, 27. 
 of course, to amend, not necessary, 28. 
 of course, how entered, 31. 
 to answer on overruling a plea or demurrer, 33. 
 to refer exception to answer, if not submitted to, 35. 
 second or third answer on old exceptions, G6. 
 exceptions for scandal or impertinence, 37. 
 to expunge impertinent matter, 41. 
 for a further answer on submission to exceptions, 42. 
 
 on report of master on exceptions, 43. 
 on default in answering exceptions for insufficiency, 45. 
 to dismiss l)iU for want of prosecution, 49. 
 to examine witnesses before master, 50. 
 for special commission to examine witnesses, 51. 
 to examine defendant as witness, 55. 
 for leave to prove exhibits at hearing, 56. 
 to enlarge time for examinaUon of witnesses, 60. 
 of hearing calendar causes at term, 64. 
 to dismiss bill for default at hearing, 69. 
 where to be entered, 71. 
 
 of reTerence, application to expedite proceedings on, 73. 
 to confirm master's report, unless cause, 82. 
 affecting merits to be included in enrolment 83. 
 to stay proceedings, and to show cause, how obtained, 85. 
 nisi, to be orders of eight days, 88. 
 to extend time, by whom allowed, S9. 
 upon banks for payment of monevs deposited in court, 91. 
 of reference to compute amount due on mortgage, 96. 
 
 as to surplus on mortgage sales, 97. 
 for guardian, ad litem, by whom granted, 98. 
 to pay costs, how enforced, 104. 
 
 for leave to file a bill of review, deposit requu-ed on, 105. 
 form of caption of, 6. 
 
 caption of, to state truly where court was held, 71. 
 several, when to be entered as one, 116. 
 
 P. 
 
 Papers to be furnished for hearing, 06. 
 marked by the folio, 68. 
 furnished on a re-hearing, 66. 
 Parol agreements between solicitors not allowed, 87. 
 Petitions, when to have preference over calendar causes, 3 
 to be addressed to chancellor by his title only, 6. 
 how to be verified, 14. 
 how to be entitled, 68. 
 for a re-hearing, 84. 
 to appoint guardians, ad litem, 98. 
 Plea overruled as frivolous, proceedings on, 33. 
 
 if allowed, may be replied to within ten days, 32. 
 
 Pleadings to be fairly written and marked by the foUo, 6.. 
 
 to he abr«viated for the court on the hearing, 66.
 
 INDEX. w 
 
 Pleadings, by whom to be furnished on hearing, 67. 
 Process, when returnal)lc, 15. 
 
 may be renewed of course, if not served, 13. 
 
 upon decrees, by whom to be sealed, 83. 
 
 R. 
 
 Receivers, how appointed on creditor's bills. 111. 
 
 powers of, on creditor's bill, 112. 
 
 not to pay money to parlies without order, 113. 
 
 to keep separate accounts, 111. 
 
 only one to be appointed, 114. 
 Reference of exceptions to answer for insufficiency, 33. 
 
 of second and third answer on old exceptions, 30. 
 
 of exceptions for scandal or impertinence, 37. 
 
 proceedings, and notice required, 72. 
 
 application to expedite proceedings on, 73. 
 
 to compute amount due on mortgage, 96. 
 
 as to surplus on mortgage sales, 97. 
 
 in divorce causes, how obtained, 101. 
 
 by consent on creditor's bills. 111. 
 Registers to keep necessary books, and have them bound, Sec., I. 
 
 list of agents in his office, 9. 
 
 to transmit lists of solicitors to other registers, 7. 
 
 to issue commissions to take testimony, 31. 
 
 not to file irregular papers, 68. 
 Re-hearing petition, certificate of counsel, ttc, on application for, 84. 
 
 deposit on, to be made in ten days, 80. 
 Replication, when to be filed, 48. 
 Report, objections to, must be made before master, 78. 
 
 when to be settled and filed, 81. 
 
 on exceptions for impertinence, when final, 41. 
 
 order to confirm nisi, S2. 
 
 on exceptions, to specify time for further answer, 39. 
 
 on exceptions, when to become absolute, 41). 
 Re-taxation to be granted by the chancellor in certain cases, 92. 
 Rule to be served in creditor's suits. 111. 
 
 when to take efiect, 117. 
 
 former abolished, 117. 
 
 s. 
 
 Security to be given by non-residents before bill filed, 12, 
 
 required of special guartUans, 99. 
 
 required on bill of review, 105. 
 Separation bill, how verified, 100. 
 
 reference to take proof on bill for, 101. 
 
 not granted of course, in any case, 103. 
 Several orders, when to be entered as one, 116. 
 Service may be on agent in certain cases, 10. 
 
 when on agent, double time required, 11. 
 
 by putting in post office, 10. 
 
 not required when defendant has not appeared, 10. 
 
 of subpoena, how made, 16. 
 Solicitors to be examined and licensed, 7. 
 
 when entitled to examination, 8. 
 
 to have agents in each circuit, 9. 
 
 to file taxed billi within twenty days, 91.
 
 INDEX. 
 
 XVI 
 
 Solicitors to verify bills ofcost«l.efore taxation, 93. .| 
 
 ^;ul)niissionofcauses,liowraade,70. ^ , . ,. 
 
 subpoena to contain tbe names of all the defendants, 16. 
 
 liow to be served, 16. ■ 
 
 for witnesses, to specify place of appearance, 5- . J 
 
 Substance of oath to be stated in jurat, 14. 
 Summons, time of servicejequired on, 72. 
 
 to see draft of report, not.necessary, 61. 
 
 to be served on incumbrancers who have hied clamts,97. 
 Surplus on sales, distribution of, how made, 97. 
 
 T. 
 
 Time of service, when an agent, to be double, 11. 
 of summons regulated, (2. 
 on rules and orders.'.how to be estimated, 8.. 
 court may extend, in all cases on terms, 89. 
 
 Taxed bills, to be furnished for enrolment, 106. 
 
 to be filed within twenty days, 94. 
 Taxation of costs regulated, 93, 118. 
 Taxing master to belappoinied for each c.rcu.t, 9-. 
 
 w. 
 
 Witnesses out of state to be e.xamined on interrogatories, 53. 
 „ot compelled to travel over forty miles, 57. 
 how examined on reference, 77. 
 order to examine defendant as, 55. 
 subpoenas to compel attendance of, 57.
 
 RULES AND ORDERS 
 
 OF THE 
 
 COURT OF CHANCERY. 
 
 The following rules and orders of the Court of Chancery of the state of Michigan, revised 
 and established by the Chancellor, in January, 1839, were adopted principally from the rules and 
 orders of the court of chancery of the state of New Yorlc. Some of the New York rules were 
 adopted from the orders of the English court of chancery. 
 
 There are adjudicated decisions in England and in the state of New Vork, as well as in the 
 court of chancery of this state which go to settle the construction to be given to nearly a'.l the 
 following rules and orders, and to establish the practice under the same. 
 
 These adjudicated decisions will be found noted under the respectix-c . uies and orders to which 
 they refer. 
 
 RULE 1. 
 
 The first Tuesday of every month, during the vacations, is ^J°^°^„^er 
 assigned for the hearing of motions and petitions before the 1°^- 
 chancellor, at the city hall, in the city of Detroit. And if there 
 is not sufficient time to finish the business noticed for any 
 regular motion day, it may be continued from day to day,until 
 it is completed; or it may be adjourned to some subsequent 
 day. 
 
 RULE 2. 
 
 When regular notice of an application has been given forincascof 
 any motion day, if the chancellor is unable to attend on the ^J^^'^|'° 
 day appointed, the case shall stand over, of course, until the 
 next regular motion day, when it may be brought on without 
 further notice. But if a stated or special term of the court 
 intervenes, the case shall be considered as standing over until 
 the first day of term. And no motion or petition, except 
 
 Vol. 1. 3* 
 
 mo- 
 over.
 
 xviii CHANCERY RULES. 
 
 Exparteap- aDolications for iniunctions, shall be heard, except on a regular 
 
 plications to 1 « j > 
 
 onmouon"'^ motlon dav, or at the term unless in case of emergency, and 
 ^^^' by special permission. 
 
 RULE 3. 
 
 Motion days Motiofis and petitions shall have a preference over calendar 
 
 in term, on 
 Monday of 
 each week. 
 
 in term, on <• i i i\/r 
 
 Monday of causcs. On the first and second days of the term, and on Mon- 
 
 day of every week thereafter, during the term, but on no 
 K."e'on other day, without special order. And in all cases, the motion 
 whid'iiiiey shall be made, or the petition be presented, on the day for 
 
 are noticed. • u u J 
 
 which it is noticed, if the party has an opportunity to be heard 
 on that day, unless the court shall otherwise direct. 
 
 RULE 4. 
 
 Registers to The rcgistcrs shall keep in their respective offices, such re- 
 keep aiine- iU *'t\ c 
 cessary gistcrs and books, as may be necessary to enter the titles oi 
 
 boolss. " » ./ 
 
 causes, with memorandums of the proceedings in such causes, 
 to enter the minutoe of the court, docket decrees, enter common 
 orders, special orders and decrees, the appointments, periodical 
 reports and in 'entories of guardians, committees and receivers, 
 and the receipt, investment, payment and expenditure of mo- 
 neys paid into court; all of which books and registers shall be 
 well bound and appropriately lettered and marked, to desig- 
 nate the uses for which they are intended. 
 
 RULE 5. 
 
 The masters It shall be the duty of each master in chancery to procure 
 
 to lieep •' 'I 1. 
 
 registers. ^^d keep in his officc, a foHo register, well bound and lettered, 
 which shall be delivered over by him, or his legal representa- 
 tives, to his successor in office. He shall enter in such regis- 
 ter, the title of all causes and matters referred to him, and a 
 - brief memorandum of the proceedings before him, on such re- 
 ferences. 
 
 RULE 6. 
 
 Addresser All bills and petitions shall be addressed "to the Chancellor 
 
 bills andpe- 
 
 titione. of the Stale of Michigan," without the addition of his name, 
 or any other title or designation. And the caption of orders
 
 CHANCERY RULES. xix 
 
 and decrees shall be in the following form, as near as maybe: orTrs°."°'^ 
 
 " Stato of Michigan, circuit: At a court of chancery, 
 
 for the state of Michigan, holden at the , of , on 
 
 the day of , one thousand eight hundred 
 
 Present: Elon Farnsvvorth, chancellor. 
 
 The cni)lion of orders and decrees must stale the lime and place where the same were made. 
 (See rule 11.) 
 
 Where the time of the entry of an order is material, the date or caption of the order should 
 correspond with the time of the actual entry of such order. Whitney vs. Belden, 4 Paige R., 140. 
 
 RULE 7. 
 No person shall be permitted to practice as a solicitor or Noper^onto 
 counsellor in chancery, without a regular admission and license "gnJ"""'" 
 by the chancellor. And to obtain such admission and license, 
 the person applying must be examined before the chancellor, 
 or before such other officer of the court, as the chancellor may 
 direct, on a special order for such examination, previously ob- 
 tained: Provided, it shall not be necessary for any solicitor 
 heretofore admitted to practice in this court, to be again exa- 
 mined, but they shall be deemed solicitors of this court, upon 
 entering their names with one of the registers of the court; 
 and it shall be the duty of thn rpgiotcis, lo transmit to each 
 other, a certified list of all persons admitted to practice in said 
 court, at the close of each term. 
 
 RULE 8. 
 
 To entitle the applicant to an order for examination as soli- 
 
 Miist be at- 
 torney or 
 
 ipreme 
 court. 
 
 citor and counsellor, he must be an attorney and counsellor of s',;',""^"'"'"^ 
 the supreme court of this state. 
 
 RULE 9. 
 
 Every solicitor shall have an agent in each city or town J^;'7/Jj;'^'- 
 wbere there is a register's office, except in the city or town ''se""- 
 where such solicitor keeps his office. The register, assistant 
 register and practicing solicitors, or any other persons special- 
 ly authorized by the chancellor, may be such agents; but the 
 agent must have an office, or a regular and known place of 
 business, within two miles of the register's office in the city
 
 XX CHANCERY RULES. 
 
 Agents, how or town for which he is appointed a^ent. The appointment 
 
 appointed. ' * ° 
 
 of an agent shall be in writing, signed by the solicitor, and spe- 
 cifying his place of residence. It shall be filed with the re- 
 gister at the place for which the appointment is made; who 
 shall keep in his office a list of such agents, with the names 
 and residence of the solicitors appointing them. 
 
 Where the solicitor who is a party to a suit, prosecutes or defends in propria persona, a no- 
 tice served on his agent, is good service. Champlin vs. Fronde, 4 Johns. Ch. Rep., 62. 
 
 RULE 10. 
 
 whenser- When the solicitors for advei'se parties do not reside in the 
 
 vice may be '■ 
 
 oniiieagent. g^me county, scrvice of papers may be made on an agent. If 
 the solicitor does not reside at the place where the court is 
 holden, in the circuit in which the cause is pending, and has 
 
 not^ces^may "^ agent there, service of a notice or other paper may be 
 
 mau!"'"^ made by putting it into the post office at that place, directed 
 to such solicitor at his place of residence, to be ascertained ac- 
 cording to the best information and belief of the person ma- 
 king the affidavit of service. Notice of the filing of all plead- 
 ings shall be given to the adverse party, except when other- 
 wise provided by thnse rules, within the time hmited for fjhng 
 
 Notice of fi- ^]^Q same. But no service of notice in the ordinary proceed- 
 
 11 ng plead- • i 
 
 tags. ji^gg y^ g^ cause, shall be necessary to be made on a defendant 
 
 who has not appeared therein. 
 
 Where a solicitor or other officer of the court nejjlects to appear in the cause after personal 
 service of the subpoena, he will not be entitled to the service of subsequent notices and papers 
 upon bini or his agent. Wells vs. Cruger, 5 Paige R., 164. 
 
 But a party who has appeared in the cause is entitled to notice of the subsequent proceedings, 
 although he is in contempt, and the bill has been taken as confessed against him for want of an 
 answer. King vs. Bryant, 3 Myl. if Craig's R., 191. 
 
 RULE 11. 
 
 Double time When the service is on an agent, or by putting in the post of- 
 
 where ser- 
 
 vice IS on a- 
 gent. 
 
 fice for want of an ageut, it must be double the time of ser- 
 vice which would be requisite if the service was on the solici- 
 tor in person. And if the solicitor resides more than one hun- 
 dred miles from the agent or office where the service is made, 
 the time of such service shall in no case be less than fifteen 
 days. Notices and other papers may, in the absence of a so-
 
 . CHANCERY RULES. xxi 
 
 licitor or agent from his office, be served by leaving the same 
 with his clerk or law partner in such office, or with a person 
 having charsrc thereof: and if no person is found in the office, ^'"t'c" ""'i 
 
 o o ' I ' papers, now 
 
 by leaving the same, between the hours of six in the morning casrof'ab- 
 and nine in the evening, in a suitable and conspicuous place in ""'^' 
 such office; or if the office be not open so as to admit of ser- 
 vice therein, then by leaving the same at the residence of the 
 solicitor or agent, with some person of suitable age and dis- 
 cretion. 
 
 Where notice of an order to produce wilnesses is served on an agent, the party serving such 
 notice, as well as the adverse party, has double the usual lime to produce witnesses. James vs. 
 Berry, 1 Paige R., 047. 
 
 RULE 12. 
 
 In all cases when the complainant or complainants are not Xon-resi- 
 
 dent coin- 
 residents of this state, before process shall issue, a bond in the pU'inunisto 
 
 ' I ' give securi- 
 
 penal sum of one hundred dollars, shall be filed with the regis- ^^ for costs. 
 ter, to be approved of by him, conditioned to pay all such 
 costs as shall be decreed against the complainant in such 
 cause. 
 
 A non-resident complainant may be compelled to give security for costs to the defendant, In 
 a bill of revivor. Wrighl vs. Lord Cremorn, 2 Hogan's Rep., IS. 
 
 RULE 13. 
 
 Bills in which the answer of the several defendants on oath Biiistobe 
 
 sworn to by 
 
 is not waived, may be verified by the oath of the complainant, compiain- 
 or in case of his absence from the state, or other sufficient 
 cause shown, by the oath of his agent, attorney or solicitor. 
 
 The word "shall," in the second line of this rule as originally printed, was a typographical 
 error; it should have been "may." The object of the rule is to give an opportunity for the 
 verification of all bills in a manner similar to that provided for creditor's bills, in rule 110. But 
 it is not necessary, under this rule, to verify all bills. Per Farnaworlh, chancellor. 
 
 In a sworn bill, it is perjury for the complainant knowingly to make a false charge or aver- 
 ment in the charging part of the bill, equally as if he makes a false statement in the stating part 
 thereof. Smith vs. Clark, 4 Paige R.. 368. 
 
 RULE 14. 
 
 In bills, answers and petitions, which are to be verified by ^'^i-''"''?'' t*" 
 
 ' r 1 J verifying 
 
 the oath of the party, the several matters stated, charged, p^'ere^ &c. 
 averred, admitted or denied, shall be stated positively, or upon
 
 xxii CHANCERY RULES. 
 
 information or belief only, according to the fact. The oath 
 administered to the party shall be, in substance, that he has 
 read the bill, answer or petition, or has heard it read, and 
 knows the contents thereof, and that the same is true of his 
 substaneeof own knowledge, except as to the matters which are therein 
 be stated ill statcd to be on his information or belief, and as to those mat- 
 ters, he believes it to be true; and the substance of the oath 
 shall be stated in the jurat. 
 
 The jurat should be drawn in the form prescribed in the rule, and not in the form of a sepa- 
 rate affidavit. Stafford vs. Bryan, 2 Paige R., 46, 
 The form of the jurat is as follows: 
 
 State of Michigan, ^ 
 County of J ' 
 
 On this day of before me, peraonally appeared the above 
 
 named A. B., and made oath that he has read the above [bill] [plea] [answer] [petition] sub- 
 scribed by him, (or has heard it read,) and knows the contents thereof, and that the same is 
 true to his own knowledge, except as to the matters which are therein stated to be on his in- 
 formation or belief, and as to those matters, he believes it to be true. 
 
 RULE 15. 
 
 Process. AH proccss, unlcss otherwise directed, shall be made returna- 
 
 ble a day certain, (except Sunday,) either in vacation or in term, 
 not less than ten days from the issuing thereof, and if process 
 is not executed before the return day, new process me^ be ta- 
 ken out, of course, as often as may be necessary, or an alias 
 or pluries may be issued. 
 
 It is irregular to make a subpcena or any other process returnable on Sunday. Gould vs. 
 Spencer, 5 Paige R., 5i\. No process for appearance nor injunction shall be issued in any 
 cause until the bill shallhave been filed ; R. S., 367, Sec. 39 ; except where apelilion is regarded 
 as a substitute for a bill. In such case the petition is a substantial compliance with the statute. 
 In the matter of Hemiup, 1 Paige R., 317. 
 
 Registers arc not authorized to issue process in blank, except process to appear and answer 
 or to compel the attendance of witnesses. Neither has a solicitor any authority to alter the 
 test of an execution after it has been issued by the register. Merrill vs. Toxcnsend, 5 Paige R., 
 SO. See also. Rule 93. 
 
 Subpoena, 
 how served 
 
 RULE 16. 
 
 The names of all the defendants in a cause shall be inserted 
 in the subpoena. It may be served by delivering a copy of the 
 writ, subscribed by the complainant, his solicitor, or the offi- 
 cer or person serving the same, and inscribed " copy," and 
 showing the original, under the seal of the court, at the time
 
 CHANCERY RULES. ^^"^ 
 
 of such delivery, to the defendant, or in case of his absence, 
 to his wife, or servant, or some member of his family, at his 
 dwelHng house or place of abode. The service may be on 
 or before the return day mentioned in the subpoena. 
 
 The service of a subpoena on the liusbanJ alone 13 good, unless llie complainant seeks relief 
 against the estate of the wife ; in which c; se the service must be on her as well as the husband, 
 and she may put in a separate answer. Ferguson vs. Smith, 2 Johns. Ch. R., 139 ; Leavilt vs. 
 Cruger, 1 Paige R., 421. AVhere the defendant is absent from lionie and no person can be found at 
 hia place of abode, the subpoena may be served on his clerk or servant at his store or place of 
 business. Smith vs. Parke, -2 Paige R., 293. 
 
 The service of a subpoena upon a defendant out of the state is irregular. Dunn vs. Dvnn, 
 4 Paige, 424 ; Pratt ^ Barker vs. The Bank of Windsor ; in Chancery, March 17, 1&41, per 
 Farnsworlh, chancellor. 
 
 The personal service of a subpoena upon a defendant who is confined in the stale prison for 
 a term of years, is regular ; and the court will not set aside or open a decree by default, ob- 
 tained upon such service, unless it appears that ihe defendant, by reason of his situation, was 
 deprived of a legal and meritorious defence. Phelps vs. Pkelpa. 7 Paige R., 150. 
 
 RULE 17. 
 
 Upon the return of the subpoena served, as directed in the fe"r^ed," pro- 
 preceding rule, the defendant shall cause his appearance to be '^^ '"^^" 
 entered in twenty days from the return day of said writ, and 
 if he does not require a copy of the bill, as hereinafter provi- 
 ded, he shall answer in forty days after the return day of the 
 subpoena, or in default thereof, his appearance may be entered 
 by the register, and the bill of complaint taken as confessed. 
 If a copy of the bill is required, he shall answer in forty days 
 from the service of such copy, or the bill may be taken as con- 
 fessed. 
 
 A bill can only be taken as confessed for want of an appearance after a personal service of 
 the subpoena on the defendant, or upon an order for advertising under the statute. Sawyer vs. 
 Sawyer, 3 Paige R., 63. 
 
 Putting in an answer Is an appearance on the records of the court. Livingston vs. Gibbons, 
 i Johns. Ch R, 94. 
 
 Where a bill is filed against husband and wife, the husband Is bound to enter a joint appear- 
 ancefor himself and wife. Leavitt vs. Cruger, 1 Paige Ji., 421. 
 
 Where a defendant applies to set aside proceedings to compel his appearance upon the ser- 
 vice of the subpoena upon his servant, at his place of residence, on the ground of an alledged 
 irregularity, he must enter a conditional appearance in the suit, so that the complainant may 
 proceed thereonif the defendant's application is not successful. Davison, vs. Hastings, 2 Lond. 
 Jurist, 464.
 
 attucbmeiit. 
 
 xxiv CHANCERY RULES. 
 
 RULE 18. 
 Motion for When the subpoena has been personally served, and the de- 
 fendant shall fail to appear and answer within the time limited 
 for the same, the complainant may, upon filing an affidavit that 
 a discovery as to the matters charged in the bill is necessary, 
 move the court for an attachment against such defendant or 
 defendants, without further notice. 
 
 Upon filing an affidavit that a discovery is necessary, the complainant is entitled to a compul- 
 sory order, that the defendant answer or be attached ; and the court will not, in that stage of 
 the cause, inquire whether an answer is actually necessary for the purpose of the suit. Staf- 
 ford vs. Brown, 4 Paige R., 360. 
 
 In a suit against husband and wife, if an order to answer separately has not been obtained, 
 the husband must procure the joint answer of himself and wife to be put in, or tlie bill may be 
 taken as confessed against both. Biltoii vs. Bennett aiid wife, 4 Simons' R., 17-, Leavitt vs. 
 Cruder and wife, 1 Paige R., 421. 
 
 The defendant may demur to a bill, if he has not obtained an order for further time to answer, 
 although the time for answering, as limited by the order, has expired ; provided his default arid 
 an order for an attachment, has not been entered. But where he is in coutemi)t, and an at- 
 tachment has been issued against him for want of an answer, he cannot demur to the bill with- 
 out special leave of the court. Per Walworth, chancellor, in Cunningham vs. Pell, in chan- 
 cery, December IS, 1S38, not reported. Xcitlier can he, in such a case, demur to a part of the 
 discovery sought by the bill, and answer as to the residue of the bill. Vigers vs. Lord Audley, 
 •2 Mijl. fy Craig's Rep., 40 
 
 RULE 19. . 
 
 A drfendmt ^^ ^^^ defendant appears personally, or is brought into court 
 oi"aifach- by the sheriff, on the return of an attachment for not appear- 
 
 inenl.toen- . . •iili^i.' *• 
 
 terhisap- uig or HOt answcHng, he shall enter his appearance or put in 
 
 j)earance, , , . i i i • 
 
 &c.,andpay his auswei*, and pay the costs incurred by his contempt, in- 
 cests. 
 
 slanter, or within such time as the court shall appoint, or be 
 committed until he complies. Or the complainant may have 
 an order that the bill be taken as confessed, and that the de- 
 fendant be committed until the costs are paid. 
 
 Where a party is in contempt, the court will not grant an application in his favor, which is 
 not a matter of strict right, until lie lias purged bis contempt. Johnson vs. Phinnetf, 1 Paige 
 R., 046. 
 
 RULE 20. 
 
 Order that When the defendant has appeared, he may have an order of 
 
 piainantde- coursc, that the complainant deliver a copy of the bill to the 
 
 of the bill, defendant or his solicitor in fifteen days, and if such copy is 
 
 not delivered within fifteen days after the service ©f notice of
 
 CHANCERY RULES. xxv 
 
 such order, or within such further lime as may be allowed for 
 that purpose, the defendant, on fih'ng an affidavit of the ser- 
 vice of such notice, and that no copy of the bill has been ser- 
 ved, may have a decree dismissing the suit, with costs, for want 
 of prosecution. 
 
 Copies of pleadings served on tlie adverse party, should he perfect copies of the originals on 
 file, including the signatures of counsel, jurats, &c. LilUejohn vs. Munri, 3 Paige R., 280. 
 
 RULE 21. 
 
 If the complainant requires a copy of the defendant's an- copy of an- 
 swer to be 
 
 swer, he may have an order, of course, that he put in his an- served. 
 swer, and serve a copy thereof in forty da3's after notice of 
 the order, and if the defendant does not file his answer and 
 serve a copy thereof within tlie time prescribed in such order, 
 or such further time as may be allowed him for that purpose, 
 the complainant, on filing an affidavit showing the default, may 
 have an order to take the bill as confessed, or may move for 
 an attachment against him without further notice. 
 
 The defendant is not o'lliged to serve a copy of his nnswer on the conipl.iinant, wlien tlie an- 
 swer has been filed before tlie order for an answer under the twenty-first rule has been entered, 
 and notice tliereof served. Per Farnsworth, chancellor, in Hastings vs. Hale et al., June, 1839; 
 MSS. 
 
 RULE 22. 
 
 The order to take the bill as confessed against an absent or rroceedin?3 
 
 ^ against ab- 
 
 concealcd defendant, and for a reference under the provisions fV' defend- 
 of chapter two, title one, pait third of the revised statutes, r. s. 271, 
 
 272. 
 
 may be entered of course, on filing the proof of publication or 
 notice, and an affidavit that the defendant has not appeared. 
 But the order requiring the defendant to a(>pear, and designa- 
 ting the paper in which it shall be published, or a direction to 
 the master to receive the testimony of the complainant as evi- 
 dence on the reference, can only be obtained by a special ap- 
 plication to the court. 
 
 An order of reference may be entered of course, under this rule, at any time after the bill has 
 been taken as coiilcssed ;igainst the absrn'ees, aliliough there are o.her defeiidonls who appear 
 and contest the suit. Corning vs. Baxter, G Paige R., 178. 
 
 Vol. L
 
 ^xvi CHANCERY RULES. 
 
 RULE 23. 
 
 Theexcep. Exccptions to an answer shall not prevent the dissolution of 
 
 tions niusl be 1 U 
 
 fiieii within an iniunction, or the discharge of a ne exeat, unless they are 
 
 ten days, to J ' " j , 
 
 disSio^'n filed and served within ten days after notice to the complain- 
 
 uon? '"•'""'" ant or his solicitor, that the answer is put in. If exceptions 
 
 are taken, the defendant may give a written consent that they 
 
 be forthwith referred; and unless the complainant procures 
 
 Master's re- the master's report in favor of the exceptions within ten days 
 
 port to be -in 
 
 procured after receivinsT such consent, the exceptions shall not prevent 
 
 wiihiii ten ° ^ * 
 
 days. ^j^g dissolution of the injunction, or the discharge of the ne 
 
 exeat. 
 
 A party is not at liberty to give notice of an application to dissolve an injunction on bill and 
 answer, for a lime, which is within ten days allowed by this rule to except to the answer. Sat- 
 terlec vs. Bargy, 3 Paige R., 142. 
 
 The court will not enlarge the time for obtaining the master's report in an injunction case, 
 except under special circimistances, such as the illness of the master, &c. Davenport vs. WhU- 
 more, 8 Simons' R., 251. 
 
 RULE 24. 
 
 Motion not If exceptions are filed within the time prescribed by the last 
 till the ex- rule, it shall not be in order to move for a dissolution of the 
 
 ceptions are 
 
 disposed of. injunction or ne exeat, on bill and answer, until the time for 
 procuring the master's report has expired, unless a report 
 against the validity of the exceptions is sooner obtained. 
 
 The defendant may give notice of an application to dissolve an injunction upon bill and an- 
 swer, immediately upon service of the answer, without wailing the ten days allowed to the 
 complainant to except; but if exceptions are duly served within the time prescribed by the 
 twenty-third rule, it will be a suflScient answer to the application. Parker vs. Williams, 4 Paige 
 R., 439. 
 
 The provisions of the twenty-fourth rule are not applicable to the case of an answer, to 
 which the complainant has no right to except for insufficiency. If the whole equity of the bUl 
 is denied, exceptions for impertinence will not prevent the dissolution of an injunction. Liv- 
 ingston vs. Livingston, 4 Paige R., 111. 
 
 An injunction granted by a justice of the supreme court, in cases where the statute authori- 
 zes it, stands upon the same footing as if granted by the chancellor, and, in either case, it is 
 competent for the defendant, in vacation and before answer, to move to dissolve the injunction 
 for want of equity in the bill. Cooper et al. vs. Alden et al., 1 Harr. Ch. R., 72. 
 
 Where the equity of the bill is denied, the injunction, on motion, will be dissolved; and 
 where it is shown by a special plea, that there is no equity in the bill, it is the same, so far as 
 regards the motion to dissolve, as though the equity of the bill was fully denied by the answer. 
 Eldred vs. Camp et al., 1 Harr. Ch. R., 162. 
 
 On a motion to dissolve an injunction, an affidavit is admissible, which goes to show that the 
 injunction was irregularly issued, or that the officer allowing the injunction was misled, and 
 induced to grant the injunction contrary to law. Carroll vs. The Famun' and Mechanics' bank, 
 1 Harr. Oh. R., 197.
 
 CHANCERY RULES. xxvii 
 
 RULE 25. 
 
 If the complainant waives th''. necessity of the answer bein;r ifiican- 
 
 ' u' swer upon 
 
 made on the oath of the defendant, it must be distinctly stated cj"iom^"'^' 
 in the bill. When the answer is put in without oath, it may {o"e"cepi"for 
 be excepted to for scandal or impertinence; but the complain- "y!" '^""^ 
 ant shall not be at liberty to except thereto for insufficiency; 
 but all material allegations in the bill, which arc not answered 
 and admitted, may be proved by him in the same manner as if 
 they were distinctly put in issue by the answer; and if no re- 
 plication is filed, the matters of defence set up in the defend- 
 ant's answer, will, on the hearing, be considered as admitted {)'j."^^^^gj°p 
 by the complainant, although the answer is not on oath. 
 
 A pica to a Ijill in chancery must be verified by oath, although the complainant has waived 
 an answer on oatli. Hearlt vs. Coming, 3 Paige R., i5GG. 
 
 If the complainant waives an answer from the defendant on oath, he must waive it as to the 
 whole bill. And, after the defendant has answered tlie original bill, the complainant cannot, 
 by an amendment, waive the necessity of an answer on oath. Burras vs. Looker, 4 Paige R., 
 227. 
 
 The general denial of all the matters of the bill, not before answered, with which an answer 
 usually concludes, is sufficient as a pleading, to put the several matters of the hill in issue. 
 Stafford vs. Brown, 4 Paige R., 88. 
 
 Where the defendants are not jointly interested in the claim made agains*. them by the bill, the 
 complainant may waive an answer on oath as to some of such defendants only. Bulkley vs. 
 Van Wtjck, 5 Paige R., 536. 
 
 If an answer on oath is waived, no discovery or answer is necessary tosupport a plea which 
 covers the whole relief sought by the bill. Fish vs. Miller, 5 Paige R., 26. 
 
 RULE 26. 
 
 The answer of the defendant mav be sworn to before any Answer? out 
 
 ' _ of state, how 
 
 master in chancery, or other officer authorized to administer >o')everifi- 
 
 .' ' ed. 
 
 oaths and take affidavits. If the defendant resides out of the 
 state, the answers may be sworn to before any judge of a court 
 of record, in the state where the answer is taken, and shall be 
 certified to have been sworn and subscribed before him, speci- 
 fying the time and place where taken. The genuineness of 
 the signature of such judge, the existence of the court, and 
 the fact that such judge is a member thereof, must be certified 
 by the clerk of the court, under the seal thereof. 
 
 The ansvi'er of an infant defendant must be sworn to by bis guardian, ad litem, or it is irregu- 
 lar. Rogers \B. Cruger,7 Johns. Ch. R, 581, 
 A joint answer of the husband and wife, must be sworn to by both, unless the complainant
 
 xxviii CHANCERY RULES. 
 
 consents to receive the answer of both upon the oath of the husband only. N. Y. Chemical Co. 
 vs. Floicers and wife, 6 Paige R., 054. 
 
 The defendant must sign the answer, althptigh the complainant has waived the necessity of 
 an answer on oath. It cannot be put in upon the mere signature of a solicitor, without a spe- 
 cial order of the court, founded upon evidence of his authority. Dennison vs. Basfvrd, 7 Paige 
 R., 370. 
 
 RULE 27. 
 The defend- Wheti a cross bill is filed, the coi:iiplainants therein, who are 
 
 ant must . J _ , . 
 
 answerihe defendants in the orimnal bill shall put in and pertect their an- 
 
 original bill, o ' 
 
 entuied'to' swcr to the Original bill, before they shall be eniitled to an or- 
 answe'"the der to compcl an answer to the cross bill, unless the court 
 
 crossbill. , ,, , • • II J- A 
 
 shall otherwise specially direct. 
 
 Thecomplainant in the origiuiil suit is not bound to stay proceedings therein, upon the filing 
 of a cross bill, except by a special order of the court; and he is entitled to notice of the appli- 
 cation for such order. White vs. Buloid, "2 Paige R., 164. 
 
 RULE 28. 
 
 Amend- If tile bill has not been sworn to, the complainant may amend 
 
 coursetoa it, at anv time befo''e the plea, answer or demurrer put in, of 
 
 bill, when ' .' 
 
 allowed. course, and without costs. He may also amend, of course, 
 after answer, at any time before he replies thereto, until the 
 time for replying expires, and withoLU costs, if a new or fur- 
 ther answer is not thereby rendered necessary; but if such 
 amendment requires a new or a further answer, then it shall be 
 on payment of costs to be taxed. He may also amend sworn 
 bills, except injunction bills, in the same manner, if the amend- 
 ments are merely in addition to, and not inconsistent with what 
 is contained in the original bill; such amendments being verifi- 
 
 Amend- cd by oath, as the bill is required to be verified. But no amend- 
 ments not of . . . , .,, i 11 1 11 1-1 .1 
 
 curse in mont oi au iniunctiou bill shall be allowed without a special 
 
 injunction ' 
 
 t*'"- order of the court, and u])on due notice to the adverse party, 
 
 Amend- if he has appeared in the suit. Amendments of course, may 
 
 merits of , i • i - i i c i 
 
 course to be DC Qiadc wilhout entering anv rule or order for that purpose; 
 
 made with- . " . 
 
 out entering but the registcfs shall not permit any amendments to be made, 
 
 an order. o i ./ ? 
 
 unless the same appear to be duly authorized. And in every 
 
 The manner r ^ . r i i • » i- • 
 
 in which case ot an amendment ol course, the complainant s soJicitor 
 
 amen.huents ,,1.1 r-i r 1 1 n ■ 1 1 
 
 are to be shall Cither rile a new entjrossment ot the bill with the register 
 
 made. ^ ° 
 
 where the original bill is filed, or furnish him with an engrossed 
 copy of the amendments, containing the proper references to
 
 CHANCERY RULES. . xxix 
 
 the folios and lines, in the origin.al bill on file, Wi'/v^fe such 
 amendmenls are to be inserted or made. But no amen' i.ient service of 
 
 iiiiiriKlnieiits 
 
 shall be considered as made, until the same is served upon the ^^'"■" »e=es- 
 
 ^ sary. 
 
 adverse party, if he has appeared in the cause. 
 
 An original bill cannot I'e amemlcd by incorporating therein matters which have irisen subse- 
 quent to the commencement of the suit ; such mutters should be stated in a supplemental bill. 
 Stafford vs. Hamtitl. 1 Paige R, 200. 
 
 An injunction bill will not be amended, unless the proposed amendments are distinctly stated 
 and sworn to ; and the application to amend must be made as soon as the necessity of an amend- 
 ment is discovered. Rogers vs. Rogers, 1 Paige R., -lit 
 
 RULE 29. 
 
 If the defendant demurs to the bill, for the want of parties, ^^>"end- 
 
 ' 1 meiit.s of 
 
 or for any other defect which does not go to the equity of the Semufrlr'." 
 whole bill, the complainant may amend of course, on payment 
 of costs, at any time before the demurrer is noticed for argu- 
 ment, or within ten days after the receiving a copy of the de- 
 murrer; and in all cases of demurrer for causes not within the 
 former part of this rule, the complainant's right to amend, and 
 the terms on which amendments may be permitted, shall be in 
 the discretion of the court. 
 
 Where a mere formal objection to a bill is made by demurrer, ore tenus, the complainant will 
 be permitted to amend, without costs. Garlick vs. Strong, 3 Paige R., 410. 
 
 Upon the allowance of .i demurrer, upon the grounj of a formal defect in the bill, the com- 
 plainant will be allowed to amend, if his counsel has acted under a mistake as to the practice. 
 McEltcian vs. Story, 3 Paige R., 505. 
 
 RULE 30. 
 
 Where the answer is excepted to as insufficient, and the de- Ammd- 
 fendant submits to answer further, or the answer, on reference, "i^atfer 
 
 - . rn ■ insufficient 
 
 IS iound msutticienl, the complainant may amend the bill, of ='"*""• 
 
 course, and without costs, at any time within ten days after 
 
 the defendant submits to answer any of the exceptions, or after 
 
 confirmation of the masters report, if the defendant does not 
 
 submit to answer any of the exceptions; and the defendant 
 
 shall answer the amendments and exceptions together. If a ^'"■"p'n'nnnt 
 
 ^ ~ may .jinrnd 
 
 plea or demurrer to the bill be overruled, the complainant may, I'f'f^'^^l^ ^^ 
 withi^n ten days thereafter, amend his bill, of course, and with- overru'ild. 
 out costs; and in all cases where the complainant is permitted 
 to amend his bill, if the answer has not been put in, or a fur-
 
 XXX 
 
 CHANCERY RULES. 
 
 Common or- 
 ders, how 
 obtained. 
 
 ther aa?«w'er is necessary, the defendant shall have the sanfie 
 tim£-'''to answer, after such amendment, as he originally had. 
 But no amendments of course, of injunction bills, are to be al- 
 lowed, under this or the preceding rule, nor any amendments 
 which are inconsistent with the original sworn bill. 
 
 The complainant cannot amend, under this rule, by leaving out the name of the defendant 
 whose answer is insufficient, and thus discontinue the suit as aganisthim, without costs. Chase 
 vs. Durham, 1 Paige JL, 572. 
 
 RULE 3L 
 
 Orders to which a party, by the rules and practice of the 
 court, is entitled, of course, without showing special cause, 
 shall be denominated common orders; and orders made on spe- 
 cial application to the court, shall be denominated special or- 
 ders. All common orders, and orders by the consent of the 
 parties, such consent being in writing and signed by such par- 
 ties, or their solicitors or counsel, and filed, may be entered 
 with the register, or assistant register, in the common rule 
 book kept in his office, at the instance of the party, or his soli- 
 citor, at the peril of the party taking such order; and the day 
 on which the order is made, shall be noted in the entry there- 
 of. All orders made by the special direction of the court, shall 
 be entered in the record of the minutes of the court, as hereto- 
 fore has been usual. 
 
 A decree or order entered by consent, cannot be set aside on motion, unless there is fraud or 
 collusion between the solicitors or counsel of the parties. Morrell vs. Lawrence, 12 John's 
 R., 521. 
 
 A party is not bound to disregard an order of course, which has been irregularly entered by 
 the adverse parly, who refuses to waive the order; but he may apply to the court to discharge 
 the irregular order, and may in the mean time suspend proceedings which are inconsistent with 
 such order. Osgood vs. Joslir^S Paige R., 195. 
 
 RULE 32. 
 
 Each party When the defendant pleads or demurs to a bill, the complain- 
 
 may notice a ' ' 
 
 nlurrer for ^"^ ^^'^^^ havo twcnty days to file a replication to his plea, or 
 
 argument, ^meud his bill; and if he does not take issue on the plea, or 
 
 amend his bill within that time, either party may notice the 
 
 plea or demurrer for argument, at the next or subsequent term. 
 
 If the plea is allowed, the complainant may, within ten days 
 
 Special or- 
 Jers, lio%v 
 entered.
 
 CHANCERY RULES. xxxi 
 
 after notice of such allowance, take issue on the plea, upon 
 payment of the costs of the hearing thereon. 
 
 Where issue is taken upon :i ple^, and the truth of sucli ple:i is cstabllshcil by llie proofs, the 
 bill must be dismissed ; as the court in that stage of the proceedings does not in(iuire or decide 
 as to the validity of the matters pleaded as a defence to the suit. Downs vs. McMichael, 2 Paige 
 R., 139. 
 
 If a plea is falsified by the proofs, the complainant may examine the defendant on interroga- 
 tories, when a discovery is necessary. Sanger vs. DeMcyer, 2 Paige R., 574. 
 
 RULE 33. 
 
 If a plea or demurrer is overruled as frivolous, era plea up- n" n 'I'-fet'd- 
 
 r '11 ant puts in a 
 
 on issue thereon is found to be untrue, the complainant may vu,'„*"„"pi'ifi' 
 have an order to take the bill as confessed, or he may compel IxJ^Zun^J" 
 the defendant to answer the bill, at his election. In all other confessed'!* 
 cases, if the plea or demurrer be overruled, neither a further 
 plea or demurrer shall be received; and the defendant shall 
 answer the bill and pay the costs of the hearing, within twen- Afterapiea 
 
 or deiiiuner 
 
 ty days after notice of the order overruling the plea or de- "f ?\",'^[.[,"t*'f^ 
 murrer, or such other time as may be prescribed by the court '^"X"twen. 
 in such order. If he fails to put in his answer and pay the*^*^*^^^* 
 costs within the time prescribed, the bill may be taken as con- 
 fessed, and the matter thereof decreed accordingly; or the 
 complainant may have an attachment to compel an answer. 
 
 After a plea or demurrer has been overruled, the defendant cannot have an ex parte order for 
 further time to answer, beyond the lime allowed by the order overruling the pica or demurrer. 
 Trim vs. Baker, 7'ur. ^ Russ. R., 253. i 
 
 This rule is not applicable to the case of a plea or demurrer to a part of the bill only and an 
 answer to the residue thereof. In such a case, if the plea or demurrer to a part of the bill is 
 overruled, the complainant must except to the answer already put in for insutfieiency, when he 
 wishes to obtain a further answer to the part of the bill which was attempted to be covered by 
 the plea or demurrer. Kuyper vs. The Reformed Dutch Church, G Paige R., 570. 
 
 RULE 34. 
 
 When the answer is to the whole bill, the complainant shall Exceptions 
 
 '■ to be hied in 
 
 have twenty days after notice that such answer is put in, to ^""^"'y ''"y^- 
 except to the same, or if the answer is to part of the bill only, 
 he shall have twenty days after the plea or demurrer to the 
 residue of the bill lias been allowed or overruled, to except to 
 such answer; at the expiration of which time, if no exceptions 
 are taken, and no order for further time has been granted, the 
 answer shall be deemed sufficient. If the complainant excepts
 
 xxxii CHANCERY RULES. 
 
 ailimly'^^ubl ^^ ^^^ aiisvver for insufficiency, the defendant may, within eight 
 swer"an"'of davs aftei* scrvicc of a copy of the exceptions, give a written 
 uoiir'^^''" notice of his submission to answer any or all of such excep- 
 tions; and he shall be liable for the costs of the exceptions 
 "which he submits to answer. 
 
 The answer of an infant, by his guardian, ad litem, cannot be excepted to for insufficiency. 
 Legett vs. Sellon, 3 Paige R., 84. Where ihere is a plea or demurrer to a part of the bill and 
 an answer to tlie residue, the complainant may except to such answer before the argument of 
 the plea or demurrer. But the effect of such except ons is to admit tlie validity of such plea or 
 demurrer. Boyd vs. Mills, 13 Ves. R.,So\ Mitf. PL, 317. 
 
 RULE 35. 
 
 Complainant Where exccptions to an answer for insufficiency are not sub- 
 to refer the ' •' 
 
 tendays!"*'" i^^J^ted to, within the time prescribed by the preceding rule, the 
 complainant, at any time within ten days thereafter, may have 
 an order, of course, to refer the exceptions not submitted to 
 by the defendant, to a master. If the exceptions not submit- 
 ted to are not referred within the time specified, they shall be 
 considered as abandoned, and the answer as to such excep- 
 tions shall be deemed sufficient. 
 
 The order to refer the exceptions must not only be entered, but the same must be served or 
 notice thereof given within the ten days, or the exceptions will be considered as abandoned. 
 Taylor vs. Harrison, 1 Myl. fy Craig R., 274. 
 
 RULE 36. 
 
 On reference If a Complainant refers a second or third answer for insuffi- 
 
 of second or 
 
 third :.nswer ciencv on the old exceptions, the particular exceptions to which 
 
 the excep- •' i ' i i 
 
 liaied." ""^ ^^6 requires a further answer, shall be stated on the order of 
 reference. And if he does not refer such second or third an- 
 swer for insufficiency within ten days after the same is put in, 
 such answer shall be deemed sufficient. 
 
 Where the complainant amends his bill and the defendant answers the amendments and ex- 
 ceptions together, if the complainant wishes to refer the further answer on the old exceptions, 
 as well as to file new exceptions to the answer of the amendments, he must file his new ex- 
 ceptions within the ten days allowed for referring the further answer on tlie old exceptions; 
 and then, afier wailing the usuul time for the defendant to sulimit to the new exceptions, he 
 must refer the answer upon the old exceptions which are not answered, and upon such of the 
 new exceptions as are not submitted to. Hart vs. Small, 4 Paige R., 333. 
 
 Where the further answe- is an answer to exceptions only, if the complainant wishes to ex- 
 cept for impertinence, he must file such exceptions within the ten days allowed for referring the 
 answer on the old exceptions, or it will be too late. Idem. 
 
 New exceptions for insufficiency, to an answer to amendments may be filed within twenty
 
 CHANCERY RULES. xxxiii 
 
 days after the pulling in of tlie answer; bui if not filed wiiliin tlie first len days, ibe reference 
 must be of the new exceptions only. Idem. 
 
 RULE 37. 
 
 Exceptions to any pleading, or other matter pending before r^ce^^r^s 
 the court for scandal or impertinence, shall be taken in the "^^^.'^p^.J,';^ 
 same manner as exceptions to an answer for insufficiency, and ^oi'^ taken, 
 may be submitted to, in like manner and within the same time. 
 If they are not submitted to, the party excepting shall refer 
 them in the same manner, or they shall be considered as aban- 
 doned; and if such exceptions are to an answer, the answer 
 thenceforth shall be deemed sufficient. 
 
 Exceptions for scandal or impertinence must point out the exceptionable inaHer with suffi- 
 cient ccrlaliity to en.-.lile the officer.-! of the court to strike out such exceptionable matter if the 
 exceptions are allowed. WTiitmarsh vs. Campbell, 1 Paige R., G45. 
 
 An exception for impertinence must be supported in toto, and if it includes any part of the 
 pleading which is relevant and proper, the exception must fail altogether. Van Rensellaervs. 
 Brice, 4 Paige R., 174 ; Desplaccs vs. Gorie, 1 Edw. Ch. R , 350. 
 
 AVhere exceptions for impertinence, if allowed, would niulilate the pleadings excepted to, 
 unnecessarily, by breaking up seniences and clauses which ought to stand or full together, such 
 exceptions sliould be disallowed. Franklin vs. K^.eler, 4 Paige R., 382. 
 
 Where an aiBdavit read upon a motion is scandalous and impertinent, it is competent for the 
 Court, upon the hearing and decision of the motion, and without any formal exceptions beifig 
 filed, to order the scandalous and impertinent matter to Ijc expunged with costs, to be paid by 
 the party or by his solicitor. Powell vs. Kane, 5 Paige R,, 265. 
 
 But the court will not refer an affidavit for impertinence merely, where it is not also scanda- 
 lous, after such affidavit has 1;ccn answered. In Re Burton, 1 Rnss. R., Ci^O. 
 
 RULE 38. 
 
 Whenever an answer or other pleadincf or proceeding is re- xhemas- 
 
 , ler's report 
 
 ferred for insufficiency, scandal or impertinence, the excep- "•"^''"^p,;,. 
 tions shall be considered as abandoned, if the party obtaining "yl^^nM- 
 the reference shall not procure and file the master's report '*^"''''^^' 
 within fifteen days from the date of the order of reference; 
 unless the master shall, within that time, certify that the par- 
 ty obtaining such reference has not been guilty of an unrea- 
 sonable delay, and that further time, to be specified in the cer- 
 tificate, is necessary to enable the master to make a satisfacto- 
 ry report; in which case the exceptions shall be considered as 
 abandoned, if the I'eport be not obtained within the further 
 time so stated. And if the exceptions were to an answer, it 
 shall thenceforth be deemed sufficient. 
 Vol. I. 5*
 
 xxxiv CHANCERY RULES. 
 
 The muster is only entitled, under this rule, to grant one certificate extendiug the time lor ob- 
 taining the master's report. Watkina vs. Redmond, 2 Loiid. Jurist, 152. 
 
 RULE 39. 
 
 The master If Oil a reference of exceptions to an answer, or the refer- 
 forpVmgin ence of a second answer on the old exceptions, the master 
 
 further an- rr^ ■ i i 1 1 f ■ r 
 
 swer. shall find the answer insufficient, he shall fix a tune lor putting 
 
 in a further answer, and specify the same in his report. 
 
 RULE 40. 
 
 Report tobe- The master's report on exceptions, shall be delivered to the 
 
 come abso- '■ 
 
 hue^ineight party obtaining the reference, who shall forthwith file the 
 same in the proper office; and if he does not except to the re- 
 port within eight days thereafter, it shall become absolute as 
 against him. But the adverse party shall have eight days af- 
 ter service of notice of filing the i-eport to except to the same, 
 and if he does not except within that time, it shall become ab- 
 solute as against him, without any order for that purpose. If 
 none of the exceptions to an answer are submitted to by the 
 defendant, or allowed by the master, the answer shall be deem- 
 ed sufficient from the time such report becomes absolute as 
 against the complainant. 
 
 RULE 4L 
 
 Order toex- jf tj^g master reports that any thing contained in any plead- 
 
 punge mi- i^ j id •' i 
 
 mauer!"^ ing or proceeding, is scandalous or impertinent, the party ex- 
 cepting, on filing proof that the report has become absolute 
 against the adverse party, may have an order of course, that 
 the master making the report, expunge the scandalous or im- 
 pertinent matter; and that the adverse party pay the costs of 
 the exceptions and the proceedings thereon, within twenty days 
 after the service of a copy of such order and of the taxed bill 
 on him or his solicitor. When the adverse party submits to 
 the exceptions, the same order may be obtained on filing the 
 
 Master's re- noticc of submission. If the master disallows an exception for 
 
 port disal- i ii i J2 i j 
 
 lowing ex- scandal or impertinence, his report shall be final, and no excep- 
 
 ceptions for r ' ^ 
 
 fmpe^unence ^ions to the report in that respect shall be allowed; but it shall 
 to be final. ^^^^ preclude the party, upon the hearing of the cause, or upon
 
 CHANCERY RULES. xxxv 
 
 the taxation of the general costs in the suit, from insisting that 
 the matter excepted to, was in fact impertinent. 
 
 Where the master overrules a part of the exceptions, and the complainant excepts to the re- 
 port, he cannot enter a common order to answer the exception;! submitted to by the defendant, 
 or which have been allowed by the master, until his exceptions to the report are finally disposo^l 
 of by an order of the court thereon. Neto York Fire Ins. Co. vs. Lawrence, Paige R., 511. 
 
 RULE 42. 
 
 On exceptions to answer for insufficiency, if all the excep- f^^^J.^^^. 
 tions are submitted to by the defendant, or a part are submit- *'^^'^''- 
 ted to, and the rest abandoned, or are disallowed on reference, 
 the complainant may have an order, of course, that the defend- 
 ant put in a further answer and serve a copy thereof within 
 twenty days after notice of the order, and pay the costs of 
 the exceptions. 
 
 RULE 43. 
 
 If, on a reference of exceptions, or the reference of a se- order for 
 
 further an- 
 
 cond answer upon the old exceptions, the answer is found in- swer after 
 
 * ' ' reterence. 
 
 sufficient, and the master's report has become absolute against 
 the defendant, the complainant may have a similar order of 
 course, to put in a further answer, and pay the costs, within 
 the time specified in the master's report. 
 
 The defendant, if he gets a decree for costs, has no right to charge the complainant with the 
 extra expense occasioned by the putting in of an answer which was insufiicient. Stafford vs. 
 Bryan, 2 Paige R., 51. 
 
 RULE 44. 
 
 In the cases specified in the two preceding rules, the defend- costs to be 
 
 ' 1 o » served ten 
 
 ant shall be entitled to a copy of the taxed bill of costs at least '''*>!' leforc 
 
 '■ •' expiration of 
 
 ten days before the time for putting in the further answer ex- gwp/°°"' 
 
 pires, or he may put in such answer without paying the costs. 
 
 But the complainant may afterwards proceed by execution or 
 
 attachment to compel payment thereof, if they are not paid 
 
 within twenty days after service of a copy of the taxed bill 
 
 on the defendant or his solicitor. And if the complainant has Aftemmend- 
 
 inentdefend- 
 
 amended his bill, so as to require an answer to the amendments a"'«ohave 
 
 * same lime fo 
 
 as well as the exceptions, the defendant shall have the same ''"''^'"''
 
 xxxvi CHANCERY RULES. 
 
 time to answer the amendments and exceptions together, as he 
 originally had to answer the bill; and the order to answer shall 
 be varied accordingly. 
 
 Where a parly has appeared by a solicitor, tlie service of an order, even for the purpose of 
 bringing such party into contempt for not obeying the same, is properly served on the solicitor. 
 Stafford vs. Brown, 3 Paige R., 360. 
 
 RULE 45. 
 
 Ordertotake If the defendant does not put in a further answer, and pay 
 
 bill as con- ' '■ 
 
 fessed for the costs withiii the time prescribed, or within such further 
 
 neglect to an- i^ 
 
 Bwerfuritier. ^jj^^g ^g ^^^y. ^^ allowed by the court for that purpose, the com- 
 plainant, on filing an affidavit showing such defaultj may have 
 an order of course, to take the bill as confessed, or may move 
 for an attachment against the defendant, without further no- 
 tice, 
 
 RULE 46. 
 
 t^^rrepon ^hc argument of exceptions to a master's report on excep- 
 uonMo'^be tions, shall be heard as a special motion. Either party may 
 rial motion, notlcc the samo for hearing, and the party excepting to the re- 
 port, shall furnish the necessary papers for the court; and, if 
 .he neglect to do so, the report may be confirmed. But if both 
 parties have excepted to the report, each shall furnish copies 
 of his own exceptions, and the party obtnining the reference 
 Costs of the shall furnish such other papers as may be necessary. The 
 
 hearing of r r j j 
 
 exceptions to oosts of the hearing on exceptions to a report upon exceptions, 
 shall be in the discretion of the court; but neither party shall 
 be entitled to costs as against the othei", unless he succeeds as 
 to the major part of the exceptions to the report. And where 
 the party succeeding as to the major part, does not succeed as 
 to all the exceptions to the report, his costs of the hearing, to 
 be allowed against the adverse party, shall not be taxed at a 
 sum exceeding ten dollars. 
 
 RULE 47. 
 
 Costs of re- When exceptions are taken to an answer for insufficiency, 
 
 ference not r -^ ' 
 
 uniess'aTof ^^ to any pleading or proceeding for scandal or impertinence, 
 tionf afe" thc party excepting shall be entitled to the costs of the excep- 
 
 sustained.
 
 CHANCERY RULES. xxxvii 
 
 tions which arc submitted to. and those which arc finally al- 
 lowed after reference to a master; but neither parly shall be 
 entitled to costs upon the reference of exceptions, unless he 
 finally succeeds as to all the exceptions which are referred. 
 The costs on exceptions shall not be taxed until all exceptions cosu hicii;- 
 
 ' dediti one 
 
 are submitted to, abandoned, allowed, or finally disposed of; i>-'i, offset. 
 and then the whole costs to which the exceptant is entitled, 
 shall be included in one bill, and the adverse party may offset 
 any costs to which he is entitled. 
 
 Where several exceptions to an answer are allowed by the master, ami the liefesliint takes 
 one general exception to the master's report, that exception must be overrulei!, if -iny of tl.e 
 exceptions to tlie answer arc well taken. Candler vs. 'Petttt, 1 Paige iJ.,427. 
 
 RULE 48. 
 Every cause shall be deemed at issue on filing a general re- ^Jeof^ fiVng 
 plication to the answer, and no special replication shall be filed replication. 
 but by leave of the court, on cause shown. If the complain- 
 ant does not reply to the defendants answer within twenty 
 days after it is deemed to be sufficient, he shall bo precluded 
 from replying, and the cause shall stand for hearing on bill and 
 answer; and either party may notice it for hearing as soon as 
 it is in readiness for hearing against the other defendants, if 
 any there are. 
 
 If the complainant wishes to prove at the hearing, any fact which is not admitted by the an- 
 swer, he mnst file a replication to the answer. Where the fact to te proved is a matter of re- 
 cord merely, the complainant, after filing his replication, may enter an order to produce wit- 
 nesses, and give notice to the adverse party of his intention to produce the record, or an exem- 
 plification thereof, at tlic hearing, and then may enter the usual order to close proofs. Mills vs. 
 Pittman, 1 Paige R., 490. 
 
 Where the complainant amends his bill after answer, he cannot file a replication to the ori- 
 ginal answer, until the time for answering the amended bill expires, although he waives a fur- 
 ther answer to tlie amendments. Richardson vs. Richardson, 5 Paige R., 5?. 
 
 RULE 49. 
 
 Where the cause stands for hearing on bill and answer against ii" compiam- 
 
 '~ '^ ant does not 
 
 part of the defendants, if the complainant does not use due dili- ^|n,.e"5if5'''' 
 gence in proceedings against the other defendants, any of those mfs-ged.*^'"' 
 who have perfected their answer may apply to dismiss the bill 
 for want of prosecution; and on such application, further time 
 shall not be allowed to the complainant of course, without any 
 excuse shown for the delay.
 
 xxxvHi CHANCERY RULES. 
 
 A motion, by a defendant, to dismiss the bill for want of prose<;ution, can only be made when 
 there are other defendants against whom the cause is not in readiness for hearing, by the neg- 
 lect of the complainant to expedite the proceedings against them. When the defendant him- 
 self is in a situation to notice the cause for hearing, a motion to dismiss for want of prosecu- 
 tion, will not be granted. Whitney vs. The Mayor, ifc, of New York, 1 Paige, 548. 
 
 RULE 50. 
 
 authorfzld When a cause is at issue by replication to a plea or to the 
 o^dTr'forThe defendant's answer, if either party desires an examination of 
 
 examination . , . .,.,., ^ . 
 
 ofwitnesses. wituesscs, hc may at any time within thirty days alter issue 
 is joined, upon petition to the register, have an order of refe- 
 rence to such master as may be necessary, to take such testi- 
 mony, by giving eight days' notice to the adverse party. And 
 if such adverse party shall desire to join in the application, he 
 shall give notice of the same to the register, and the order 
 shall be for the examination of witnesses on the part of the 
 complainant and defendant. Either party may proceed to take 
 the testimony of their witnesses under such order, upon giving 
 ten days' notice to the other, of the names and places of abode 
 of the witnesses to be examined, and the time and place of such 
 examination. 
 
 Proofs cannot he taken as to one defendant to whose answer a replication is filed, until the 
 answers of the other defendants have been perfected, or the bill has been taken as confessed 
 against them. Vermillyea vs. Odell, 4 Paige R., 121. 
 
 Where a party has not received due notice of the examination of a witness, the irregularity 
 is cured by a neglect to complain of it in season. Skinner vs. Dayton, 5 John. Ch. R., 191. 
 
 RULE 5L 
 
 May appoint If a party wishes to examine witnesses residing out of the 
 
 commission- i ./ o 
 
 state, or more than thirty miles from the residence of a mas- 
 ter, or when all the masters are interested, living within that 
 distance, as counsel or otherwise, either party may, at any time 
 within thirty days after issue is joined, as prescribed in the 
 preceding rule, present a petition to the register of the circuit 
 where the suit is pending, stating the names and residences of 
 the witnesses and of the pei'son or persons proposed as com- 
 missioners, and praying that a commission may be issued to 
 take the examination of such witnesses; and ten days' notice 
 of the application shall be given to the adverse party, li the 
 adverse party does not appear and join in the commission, or 
 
 commission 
 ers.
 
 CHANCERY RULES. xxxix 
 
 object to the persons named as commissioners, a commission 
 shall be issued agreeably to the prayer of the petition. 
 
 An order for .a comniission will not stay the closings of tlic proofs until the commission is 
 executed and rc'.urncd, nilliout a special order of the court. JiarncU vs. Parduw, 1 Edui. Ch. 
 «., 11. 
 
 RULE 52. 
 
 If the adverse party wishes to join in the commission, he f^;;^.'Zy 
 must, at the time of presenting the petition, furnish the names Commission, 
 
 1 ■ J L u 11 u '""' how. 
 
 and residence of the witnesses on his part, and they shall be 
 inserted in the commission. If he is not satisfied with the 
 commissioners named in the petition, he may name commis- 
 sioners on his part; and the register to whom the petition is 
 presented, after hearing the allegations of the parties, shall 
 designate a suitable person or persons, to execute the commis- 
 sion, and issue the same accordingly; but any of the commis- 
 sioners named in the commission, may execute the same, in 
 case the others neglect or refuse to join in the execution 
 thereof, or they are, from any cause, prevented. 
 
 RULE 53. 
 
 Witnesses examined out of the state, shall be examined on ouf"f''fc 
 written, direct and cross interrogatories, to be allowed by a |^amine/oa 
 
 , , . . written in- 
 
 master, and annexed to the commission. terrogato- 
 
 ries. 
 Counsel Iiuvc a right to lie present and to cross-examine witnesses \VIio are examined under 
 a commission out of the state. Steer vs. Steer, Hopk. Ch. R., 3C'2. 
 
 RULE 54. 
 
 If it shall be necessary to have a commission to take the ^^^/^omnTs". 
 examination of witnesses in any case not provided for in the ciai'ws"ee.''^ 
 preceding rules, or after the expiration of the time therein 
 limited for making an application to the register, the party 
 may present a petition to the chancellor for that purpose, set- 
 ting out the facts which entitle him to a special commission; 
 and the usual notice of the application shall be given to the 
 adverse party.
 
 xl CHANCERY RULES. 
 
 RULE 55. 
 
 Order for the Whcii a pavtv wislics to examine a defendant as a witness 
 
 exanimalion 
 
 a^witn^'ess^.''^ against a co-defendant, or against the complainant, he may, at 
 any time within twenty days after he has received or served 
 a notice of the rule to produce witnesses, on filing an affidavit 
 that such defendant is a material witness, and is not interested 
 in a matter to which he is to be examined, have an order of 
 
 Evidence coursc, for the examination of such defendant as a witness, as 
 
 may lie nb- . , . , , . . , , . ii • i 
 
 jectcdtoat to any matter in which he is not interested, subject to all just 
 
 the hearing. "^ . 
 
 exceptions. And such defendant shall thereupon be examined 
 to such matters, in the same manner as other witnesses; but 
 the adverse party, at the hearing, may object to the competency 
 of his testimony. 
 
 W^here ii party is examined as a witness between other parties in a suit, he is examined sub- 
 ject to .'dl just exceptions ; and if he is interested in the matters to which he is examined, the 
 objccUon may be taken at the hearing nltliough it has not ijefore been made. Mohawk hank 
 vs. Atwaier, 2 Paige R., 54. 
 
 W'liere the comidalnant examines a defendant primarily liable for the debt or demand, as a 
 witness against a co-defendant, he cannot liave a decree against eitl)er, unless tlie defendant 
 thus examined had admitled his own liability by his answer, or by suffering the bill to be taken 
 9a confessed. Bradley vs. Root, 5 Paige R., 632. 
 
 RULE 56. 
 
 Documenta- Documentary evidence, which is neither made an exhibit 
 
 ry evidence, •' 
 
 when used, beforc the commissioner, or set out, or distinctly referred to in 
 the pleadings, shall not be read on the hearing, unless notice 
 of the intention to use it at the hearing is given to the adverse 
 party, at least ten days before the expiration of the time al- 
 
 No proofs lowed to producc proofs, and no deed or other writing shall be 
 
 taken at the "^ "^ ° 
 
 withim s e- pi'oved at the hearing, except on an order previously obtained, 
 ciai order, j^f^gj. (j^g noticc to the adversc party. 
 
 To enable a party to read documentary evidence at the liearing under the provisions of this 
 rule, it is sufficient if notice of his intention to do so is given to the adverse party more than 
 ten days previous to the actual entry of the order to close tiie proofs. Kellogg vs. Wood, 4 
 Paige R., 578. 
 
 Documentary evidence set out or distinctly referred to in the pleadings, and vphich is of itself 
 evidence witliout further proof, such as exemplilications of records, deeds duly acknowledged, 
 &c., may be read at the hearing without notice to the adverse party, or any order previously 
 obtained for that purpose although not made an exhibit before the examiner. Pardee \s.De- 
 Cala, 7, Paige R. 132. 
 
 Wliere the assignee of a morlgage files a bill to foreclose, setting forth the mortgage and as- 
 signment, he may, upon the notice required by the 62d rule, to the opposite party, have an or-
 
 CHANCERY RULES. xli 
 
 der under the 56th rule, to prove the assignment as an exhibit at the hearing. Jerome vs. Sey- 
 mour, Mss., in chancery, February term, lis41,/>er Famsworth, chancellor. (See aUo, Cousequa 
 vs. Fanning,^ Johns. Ch. R., i;:!.) 
 
 RULE 57. 
 
 Process of subpoena to compel the attendance of witnesses f^"^;;!**"^^.'" 
 before a master or commissioner shall issue of course, and the ;^;','Ss?^ 
 time and place of attendance shall be specified in the writ; and 
 such witnesses may be punished for contempt, if they fail to 
 attend and submit to an examination. But no witness shall be 
 compelled to appear before the master or commissioner, more 
 than forty miles from his place of residence, unless by special 
 order of the court. 
 
 RULE 58. 
 
 At the end of sixty days from the service of, or receipt ofo^^^«y°„j. 
 notice, of examination of witnesses, upon filing an affidavit of 
 the facts, an order may be entered of course, that the proofs 
 be closed. 
 
 RULE 59. 
 
 Within ten days after notice of the order to close the proofs, f."'"'""^ 
 the master or commissioner, on being applied to for that pur- [^n.-iS'f-" 
 pose, by either party, shall cause the depositions and exhibits, J^onAs 
 taken or produced before him, to be returned and filed with 
 the register. And he shall not be entitled to receive pay for 
 taking any depositions, or making any exhibits, which are not 
 returned and filed with the proper officer, within ten days af- 
 ter service of notice of such order. Neither shall a copy of 
 any deposition or exhibit be read on the hearing, unless the ori- 
 ginal has been returned and filed in the proper office. 
 
 RULE 60. 
 
 An order to enlarge the time for the examination of witnes- J^',J"^,'°^"" 
 ses maybe granted, on sufficient cause shown, without notice d"ccwit-'^°' 
 to the adverse party; but an ex parte order shall not be gran- ""^ 
 ted after the time for the examination of witnesses has actual- 
 ly expired, nor shall a second order be granted to the same 
 party, except on the usual notice of the application to ihe ad- 
 verse party, and upon such terms as the court may prescribe. 
 
 Vol. I. 6* 
 
 tcr the lesli- 
 
 y is 
 closed.
 
 xlii CHANCERY RULES. 
 
 Where an order to produce witnesses has been extended by agreement of the parties, an ex 
 parte order further lo extend the time is regular if made before the expiration of the time agreed 
 on by the stipulation of the parties ; but the party applying for such further extension should 
 state the fact of the previous extension by agreement of tlie parties. Fitck vs. Hazletine, 2 
 Paige R., 416. 
 
 "Where one party has obtained an order to extend the time to produce witnesses, the adverse 
 party is not precluded from obtaining an ex parte order for extending the time siQl further. 
 Osgood vs. Joslin, 3 Paige R., 193. 
 
 By the English practice where a defendant sets down the cause for hearing, he is not bound 
 to serve the subpoena to hear judgment, on his co-defendants. He is only bound to serve the 
 complainant, whose duty it is to serve the other defendants before the cause can be heard 
 as against them. Smith vs. Wells, Mad. and Geld. R., 493. 
 
 RULE 6L 
 
 Either party After the proofs are closed, either party may notice the 
 
 may notice '■ i ./ •/ 
 
 Jfgg^j^g^^ '"°'' cause for hearing at the next or some subsequent term. It 
 shall not be necessary in any case to obtain an order to set a 
 cause down for hearing; but when a cause is in readiness for 
 hearing, on plea, or demurrer, bill and answer, pleading and 
 proofs, exceptions to a master's report, or on the equity reser- 
 ved, either party may notice the same for hearing and have 
 the cause entered on the calendar of causes for the term. 
 
 Notices of All notices of hsaring, or of special motions, or of the pre 
 
 hearing and 
 
 RULE 62. 
 
 or of speci 
 
 of^moiions, gcnting of petitions, when required, shall be notices of at least 
 eight days, if the solicitor of the adverse party resides over 
 one hundred miles from the place where the court is to be held; 
 if over fifty, and not exceeding one hundred, six days' notice 
 shall be given; and in all other cases, at least four days. And 
 a copy of the petition, affidavit, or certificate, on which any 
 special application is founded, shall be served on the adverse 
 party the same length of time previous to making the applica- 
 tion to the court. 
 
 When a party has appeared in the cause, he is entitled to notice of every application to the 
 court on which the final order is sought, where he has an interest, to appear and show cause 
 why the application should not be granted ; orders for time and other orders of a similar nature, 
 esi epte I. Is. ar i vs. Cozaux, 1 Paige R., 9. 
 
 A defendant who ha? ajjpeared by his solicitor, is entitled to notice of all subsequent proceed- 
 ings in a cause in which he is Interested. Hart vs. Small, 4 Paige it, 551.
 
 CHANCERY RULES. xliii 
 
 RULE 63. 
 When a cause is submitted or heard, on bill, answer and re- caseanaab- 
 
 ... ^1)1- 1 r -r I •, hreviationof 
 
 plicalion, or on the pleadings and proofs, it the parties do not pieaaings. 
 agree upon a case, to be signed by them, containing, with all 
 requisite brevity, a statement of the pleadings and proofs, the 
 complainant shall furnish the court with a case, staling the time 
 of filing the bill, and of the answers and other pleadings re- 
 spectively, the names of the original parties in full, the change 
 of parties, if any has taken place pending the suit, and a very 
 brief history of the proceedings in the cause; and containing 
 an abbreviation cf the pleadings, not exceeding one-sixth of 
 the number of folios contained in the original pleadings, respec- - 
 lively. 
 
 RULE 64. 
 
 In making up the calendar, causes to be heard on bills taken caiendarand 
 
 '-' '■ ' Ihe order in 
 
 as confessed, shall have a preference, and shall be entered ac- Tes al'e'^o be 
 
 cording to priority, from the date of the order to take the bill ^'^^^' 
 
 as confessed. Pleas and demurrers shall constitute the second 
 
 class of causes, and have priority from the time when the plea 
 
 or demurrer was filed. Causes to be heard on bill and an miiTnd°"n- 
 
 hi I 1 1 • 1 1 1 11 swer 10 con- 
 
 all occupy the third place on the calendar, and have stimte the 
 
 ' tliird class. 
 
 priority from the time when the answer was put in. Those 
 which are to bo heard on the pleadings, or on pl.:adip^:s and 
 proofs, shall form the fourth class, and have priority from the 
 lime when the replication was filed. Causes to be heard on 
 exceptions, or upon the equity reserved in a decretal order, 
 shall be placed in the class to which they belonged before the 
 decretal order or reference, and according to their priority as 
 it then existed; and causes for rehearing shall be arranged in 
 the same manner. But the court, in the hearing of calendar 
 causes, may, in its discretion, give a preference to any parti- 
 cular cause, or description of causes, over others on the calen- 
 dar. And mortgage causes of the fourth class, shall be entitled 
 to a preference over any other causes of the same class; un- 
 less the defendant, before the cause is heard, shall file with the 
 register, or assistant register, at the place where the court is
 
 xiiv CHANCERY RULES. 
 
 held, an affidavit that he has a good and meritorious defence, 
 and that his answer was not put in for the purpose of delay; 
 the filing of which affidavit he shall have noted on the calen- 
 dar. 
 
 RULE 65. 
 
 Causes shall Causcs shall be noticed for hearing for the first day of term, 
 for"the first or for as early a day in term as practicable. The notice to the 
 
 day of term. • 
 
 register specifying the class to which the caxise belongs, and 
 the time from which it is entitled to priority, shall be deliver- 
 ed to the register, who is to make the calendar four days pre- 
 vious to the commencement of the term. But if the cause is 
 not in readiness for hearing in time to notice it for the first day 
 in term, it may be placed at the foot of the calendar; and if 
 the bill has been taken as confessed, may be heard out of its 
 regular order. 
 
 RULE 66. 
 
 Papers to be When E causc is heard or submitted on plea or demurrer, 
 
 furnished . . 
 
 upon the QY qu bill and answer, except in mortgage or partition causes, 
 
 hearing. ' ' o o i 
 
 where the complainant's rights are not contested, the court 
 shall be furnished with copies of the pleadings, and an abbre- 
 viation thereof, not exceeding one-sixth of the number of fo- 
 lios contained in the originals. If it is heard on bill, answer 
 and rephcation, or on pleadings and proofs in addition to the 
 case required by the sixty-fourth rule, the court shall be fur- 
 nished with copies of the pleadings and of the depositions, if 
 onarehear- any, and with short abstracts of the exhibits. On a rehear- 
 '"^" ing, a copy of the decree or order reheard, shall be furnished, 
 
 and copies of the pleadings, abstracts, case, depositions, &.c., 
 on which the same was founded. Upon exceptions to a mas- 
 ter's report, copies of the order of reference, report and ex- 
 ceptions, and of such part of the evidence before the master, 
 and of the pleadings, as are material for the decision of the 
 exceptions, shall be furnished. And in all cases, the necessa- 
 ry papers shall be delivered to the court when the hearing of 
 the cause shall commence.
 
 I)y whom 
 crs are 
 io lie fur- 
 
 CHANCERY RULES. xlv 
 
 RULE 67. 
 
 If the cause is heard or submitted on a plea or demurrer, or ^y^ 
 on exceptions to a master's report, or on a rehearing, the ne- '„°ihed 
 cessary papers shall be furnished by the party pleading, de- 
 murring or excepting, or who obtained the rehearing. In all 
 other cases the papers shall be furnished by the complainant; 
 except that on an original hearing upon pleadings and proofs, 
 each party shall furnish copies of the testimony and abstracts 
 of the exhibits on his part only. And each party shall deliver 
 to the court and to the adverse party, a copy of the points on 
 which he relies; and may also deliver to the court and to^^tho 
 adverse party, a draft of the minutes of the decree to which 
 he conceives himself entitled. 
 
 RULE 68. 
 
 The solicitor or other officer of the court, who draws any £'«^f^"^-;',^_ 
 pleading, deposition or report, or enters any decree, shall dis- feSto'ue 
 
 linctly number and mark each folio in the margin thereof; and ami'n'far'kea 
 
 1111 ^y i''6 folio. 
 
 all copies, either for the parties or for the court, shall be num- 
 bered or marked in the margin, so as to conform to the origi- 
 nal draft or entry and to each other; and no allowance shall 
 be made on the taxation of costs for copies not numbered and 
 marked according to this rule. And all bills, answers and 
 other proceedings, and copies thereof, shall be fairly and legi- 
 bly written; and if not so written, the register or assistant re- 
 gister shall not file such as may be offered to them for that 
 purpose; and in the entitling and endorsement of papers by ei- 
 ther party, the complainant's name shall be placed first. 
 
 RULE 69. 
 
 If the cause is noticed for hearing on the part of the de- Default at 
 fendant, and the complainant does not appear to agree on his 
 part, or does not furnish the necessary papers, agreeably to 
 the preceding rules, the bill may be dismissed, with costs. If 
 noticed on the part of the complainant, and the defendant does 
 not appear at the hearing, and furnish the necessary papers on 
 his part, the complainant may have such decree as he is enti-
 
 xlvi CHANCERY RULES. 
 
 tied to by the defendant's default, according to the usual course 
 and practice of the court. 
 
 RULE 70. 
 
 The manner All submissions shall bc in writing, signed by the necessary 
 
 ofs-jbmiUing _ . . i i n i i i- J * 
 
 cases. parties or their solicitors or counsel, and shall be aehverea to 
 
 the register or assistant register where the court is held, with 
 the necessary copies and papers. On special motions and pe- 
 titions, as well as in calendar causes, he shall mark the pa- 
 pers and note them in his minutes, as on a hearing; and he 
 shall not enter the submission until all the necessary copies 
 and papers are furnished, as required by the rules of the court. 
 
 RULE 71. 
 
 cntt7ed wuh ^11 ordcrs and decrees, made by the chancellor on the days 
 the regisier. fQj. j^g^j-jj^g gpgcia] motions and petitions, established in rule 
 first, unless otherwise specially directed, may be entered with 
 the register of the proper circuit; but the caption of orders 
 and decrees shall always state truly the place where the court 
 was held when the same were made. 
 
 Neither party can have any benefit from a decision of the court, until the order upon such 
 decision is drawn up and perfected. And where it is material to either party, the caption or 
 date of the order shouM be made to correspond with the true time of the entry of such order. 
 Whitney vs. Belden, 4 Paige R., 140. 
 
 RULE 72. 
 Regulations When a matter is referred to a master, to examine and re- 
 
 of tlie pro- ' 
 
 u?emaster"s po^'t tliercon, on bringing the decree or order into his office, he 
 shall assign a day and place for hearing the parties, and give 
 to the party bringing in such decree or order, a summons for 
 the adverse party to attend at the day and place so appointed. 
 
 ?i'™of mT" 'I'^^® summons shall be served on the adverse party or his soli- 
 citor, such time, previous to the day appointed for hearing, as 
 the master may deem reasonable and direct, taking into con- 
 sideration the nature of the matter to be examined, and the 
 residence of the parties. But the time of service, unless oth- 
 erwise ordered by the court, shall not be less than two days, 
 when the solicitor of the adverse party resides in the city or 
 town where the hearing is to take place; and not less than 
 
 Vlt 
 
 summons
 
 CHANCERY RULES. xlvii 
 
 four days, when he resides elsewhere, not exceeding fifty 
 miles from the place of hearing; not less than six days, if over 
 fifty, and not exceeding one hundred miles; and not less than 
 eight days, when he resides more than one hundred miles from 
 the place of hearing. 
 
 The adverse party, upon the taxation of costs, is entitled to notice of the taxation, for the 
 same length of time as is prescribed by this rule as the shortest time which is to be allowetl for 
 the service of a summons upon a reference ; and a taxation of costs without such notice is irre- 
 gular, and may be set aside. Hoffman vs. Skinner, 5 Paige R., 520 ; (See also rule 118.J 
 
 The summons should Le properly under-written, or the nature of the reference to be procee- 
 ded in, or the object of the attendance should be stated in the body "f the .■jiimmons. Manhattan 
 CO. vs. Eccrston, 4 Paige R.. 276. 
 
 A personal service of a summons upon the party himself, to attend before the master, and to 
 produce or execute papers, or to be examined under a decree or order of Uie court, is not neces- 
 sary for the purpose of bringing such party into contempt for disobeying the summons; but a 
 service upon'the solicitor alone is sufficient. Rlerritt vs. Annan, 7 Paige R., 151. 
 
 Where a parly has appeared by a solicitor, the service of an order evca for the purpose of 
 bringing such party Into con.eiiipt for not obeying the same, is properly served on the solicitor. 
 Staffordvs. Brown, H Paige R., 360. 
 
 Where there has been one reference on exceptions to an answer, if a second or third answer 
 is referred for insulficiency on the old exceptions, it should be referred to the same master, if he 
 is still in office and is legally competent to act in the case. Legett vs. Dubois, 3 Paige R., 477. 
 
 RULE 73. 
 
 If the party who is entitled to prosecute such decree, orPa^yenu-^^ 
 order of reference, does not procure and serve such summons lfrcfe"Jx'!ci 
 within thirty days after the decree or order is entered, any Ihiny dlys!"* 
 other party or person interested in the matter of reference, 
 shall be at liberty to apply to the court, by motion or petition, 
 to expedite the prosecution of the decree or order; and after 
 the proceedings have been commenced, by the service of a 
 summons to attend before the master, if the party entitled to 
 prosecute such decree or order, does not proceed with due 
 dihgence, the master shall be at liberty, upon the application 
 of any other person interested, either as a party to the suit, or 
 as coming in to prove his debt, or establish a claim under the 
 decree or order, to commit to him the prosecution of the re- 
 ference. 
 
 The master's decision under this rule is not conclusive-, and if he refuses the application to 
 commit the prosecution of the reference to another party, the court may commit the prosecution 
 to such party, upon a proper application for that purpose. IVt/att vs. Sadler, 5 Simons' R., 450. 
 
 The court may commit the prosecution to another party, allJiough the suit has abated, if the 
 party who is entitled to prosecute the order of reference, neglects to revive the suit. Cook vs. 
 £eHi)n, i Ruti. JR., 283.
 
 for 
 
 r 
 
 ings 
 
 xlviii CHANCERY RULES. 
 
 RULE 74. 
 Master to At the time and place appointed in the summons, for the 
 
 regulate pro- i i i 
 
 n^liiclfme"' hearing of the parties, the master shall proceed to regulate, as 
 aiproce'ed-' far as may be, the manner of its execution; as, for example, 
 to state what parties are entitled to attend future proceedings, 
 to direct the necessary notices, and to point out which of the 
 several proceedings may properly be going on, pari passu; and 
 as to what particular matters, interrogatories for the examina-. 
 tion of the parties appear to be necessary; and whether the 
 matters requiring evidence shall be proved by affidavit or by 
 examination of witnesses; and if the master shall think it ex- 
 pedient so to do, he may then, or upon any subsequent attend- 
 ance, and from time to time, as circumstances may require, 
 fix the time within or at which any proceedings before him 
 
 Masters may ghall \jq haj. Q^d hc mayprocced de die in diem, or by ad- 
 proceed (le ' •' ^ 1 J 
 
 die in diem, joummcnt from time to time, as he may think proper. 
 
 Upon the return of the first summons, the master should regulate the manner of executing 
 the reference, and the several steps to be taken by the parties so far as it can then be conven- 
 iently done ; and at any subsequent allendanee before him, he should give such further directions 
 in relation to the proceedings as may have become necessary in the progress of the reference. 
 Story vs. Brown, 4 Paige R., 112. 
 
 The master cannot proceed upon affidavits upon an inquiry before Iiim, in an adversary pro- 
 ceeding, without the consent of all the parties interested therein. Rowley vs. Adams, 1 Myl. if 
 Keen' a R, 54S. 
 
 RULE 75. 
 
 Masters may Where, by any decree or order of the court, books, papers 
 
 direct as to .. iiiz-i 
 
 the books or writings, are directed to be produced belore the master, for 
 
 and papers * • 
 
 tobeprodu- the purposes of such decree or order, it shall be in the discre- 
 tion of the master to determine what books, papers or writings 
 are to be produced, and when and for how long they are to be 
 left in his office; or, in case he should not deem it necessary 
 that they should be left or deposited in his office, then he may 
 give directions for the inspection thereof by the parties requi- 
 ring the same, at such time and in such manner as he shall 
 deem expedient. 
 
 Where a party produces books under an order of the court, for the inspection of the adverse 
 party, those parts may be sealed up which do not relate to the subject of the litigation ; and it is 
 a contempt of the court fcr the adverse party to break open the pjirts thus sealed up. Dios ve. 
 Jfer/e, 2 Paige R., 494.
 
 CHANCERY RULES. xlix 
 
 The master is to exercise a discretion in determining what books and papers arc necessary to 
 be produced, :iIthoiif.'h Ihe liingunge (jf the decree is general. Ihal the p.-irlies produce all books 
 and papers, &c. Fariahea vf Llantrisant, 1 Russ. 6f Myl. iJ,.25; JJennd vs. Vuitn, Mad. fy Gold 
 R., 340. For a collection of fcin^'lish ca.ses as to the (iroduciion of books and papers, {see note 
 to order 60, in Cook's new Orders, p. 28.) 
 
 RULE 76. 
 
 Where some, or one, but not all of the parties do attend the if some of 
 
 the parlies 
 
 master, at the time and place appointed, the master shall be at '"-elect to 
 
 I ' • ' at' end ihe 
 
 liberty to proceed ev parte, if he think.s it expedient so to do, may "roceed 
 considering the nature of the case; and if he has proceeded ^^'"'"^' 
 ex parte, such proceeding shall not in any manner be reviewed 
 by him, unless, upon special application to him for that pur- 
 pose, by the party who was absent, the master shall be satisfi- 
 ed such party was not guilty of wilful delay or negligence, and 
 then only upon payment of all costs occasioned by his non- 
 attendance; and such costs to be certified by the muster, at 
 the time, and paid by the party or his solicitor, before he shall 
 be permitted to proceed on the warrant to review; and every 
 summons to attend before a master shall be considered pei-emp- 
 tory. 
 
 RULE 77. 
 The master shall be at liberty to examine any witness or The master 
 
 may take les- 
 
 partv, or any creditor or other person coming in to claim be- «''P""''f 
 fore him, either upon written interrogatories, or viva voce, or ,''o.'"tor',e"'o r 
 in both modes, as the nature of the case may appear to him to hudl'""^'" 
 require; the examination or evidence being taken down at the 
 t'mj by the masti r, or by his clerk in his presence, and pre- 
 served, i.) order that the same may be used by the court, if 
 necessary. 
 
 Where a party is examined before a master in relation to his own rislits or llrbiliiics, he 
 cannot he cross-examined by his own counsel, or frivc evidence in his o\'n favor, any fur;her 
 than Ids answers are responsive to the interrogatories put to biui by the adverse party. Benson 
 vs. Le Roy, 1 Paige R., 122. 
 
 A creditor coming in to claim before a masler, under a dci-rce for the benefit of creditors, 
 must present the particulars of his claim in writing, supported by an affidavi: that the amount 
 claimed is justly due, and that neither he, nor any other |.erson for his use, has received the 
 amount claimed, or any part thereof, or any security or satisfaction therefor. Morns vs. Moie- 
 att, 4 Paige R., 14'J. 
 
 Vol. L 7* 
 
 iscie- 
 tion.
 
 1 CHANCERY RULES. 
 
 RULE 78. 
 
 ma'^exa- ^^ ^ pai'ty wishes to complain of any matter introduced into 
 
 M^ep'tedlo" any state of facts, affidavit, or otiier proceeding before the 
 master, on the ground that it is scandalous or impertinent, or 
 that any examination of a party before him is insufficient, such 
 party shall bo at liberty to file exceptions thereto with the 
 master; and the master shnll have authority to expunge any 
 such matter which he shall find to bo «pandalous or imperti- 
 if a master i-jent. And vvherc the matter is excepted to. as scandalous or 
 
 disiillowsex- ' 
 
 decisro"n' '"' impertinent, if the master disallows the exceptions, his decision 
 as"io I'he'^ex- thercou sluill be final as to the exceptions which are disallow- 
 cepions. ^^^ ^^^ ^j^.^ ^j^^jj ^^^^ preclude the party from insisting upon 
 
 the impertinence at the hearing of the cause, or upon any sub- 
 sequent proceeding founded on the master's report upon the 
 reference, or upon the taxation of the general costs of the 
 Mateririity causc, or of the reference. And in deciding on the sufficiency 
 
 of tlie niaiter ' . 
 
 inioVJ'ifs'ide- °'' insufficiency of the examination of a party, or of an answer 
 
 ration. ^ l^jji ^j Piaster shall alwavs take into consideration the 
 
 relevancy or materiality of the statement or question referred 
 
 Parties to be to in the cxception. On exceptions to the master's report, or 
 
 confined to ' * _ ' 
 
 oiijections ^Q jjjg certificate of the sufficiency or insufficiency of an exa- 
 
 t;iken lirfore -^ •' 
 
 the master. j-j-,ij-mtion, the parties shiU be confined to the objections taken 
 before the master. 
 
 The proceedings upon a master's certificate as to the sufficiency of an examination of a party, 
 are substantially the same as upon a report upon exceptions to an answer for insufficiency. 
 Case vs. Abeet, 1 Paige R., 630. 
 
 RULE 79. 
 
 Accountsbe- All parties accounting before a master, shall bring in their 
 
 fore the mas- r cd a 
 
 tertohein accounts in the form of debtor and creditor: and any of the 
 
 the form of ^ j 
 
 creditor.'"' Other parties who shall not be satisfied with the accounts so 
 
 brought in. shall be at liberty to examine the accounting party 
 
 aurnv hil"-^ upon interrogp.tories, as the master may direct. On any refe- 
 
 any special"^ rcucc to take or State an account, the master shall be at liber- 
 
 dirccuous. . I 1 1 I • 1 • 1 1 • 1 
 
 ty to allow mterest as shall l)e just and equitable, without any 
 
 special directions for that purpose, unless a contrary direction 
 
 cb^^cs!&t, '^^ contained in the order of reference. And every charge, 
 
 by oat^h"''^^'* discharge, or slate of facts, brought in before a master, shall
 
 CHANCERY RULES. li 
 
 be verified, b\' oath, as true, either positively, or upon infor- 
 mation and belief. 
 
 A party eianiiiicd before a master in relation to his accounts cannot give testimony in his 
 own favor, any further than his answers are fairly responsive to the interrogatories of the 
 adverse party. Benson vs. Le Roy, 1 P.iige R., 122. 
 
 Where a party is required to bring in his accouril before the master under this rule, he must 
 bring In his whole account and for the whole period for which he is accountable. It must also 
 be verified by llie usual affidavit, that the account, including both debts and credits, is correct, 
 and that the party accounting docs not know of any error or omission therein to the prejudice 
 of any of the other parties. Story vs. Rroicn, 4 Paig-e R., 112. 
 
 RULE 80. 
 
 In all matters referred to a master, he shall be at liberty, -'^ma'-ej; 
 
 ' ' ^' V ' may make 
 
 upon the application of any party interested, to make a sepa- poru''''^ ''^' 
 rate report or reports, from time to time, as he shall deem ex- 
 pedient; the costs of such separate reports to be in the discre- 
 tion of the court. And where the master shall make a sepa- 
 rate report of debts or legacies, he shall be at liberty to make 
 such certificate as he thinks fit, with respect to the state of as- 
 sets and any person interested shall thereupon be at liberty 
 to apply to the court as he shall be advised. 
 
 Wli!re the decree among other things directs the master to appoint a trustee or receiver, his 
 certificate of t1ie appointment is in the nature of a separate report. Harris vs. Kemble, 4 Russ 
 it, 474. 
 
 Where a party to the suit objects to a separate report, lie may file his exceptions to it in the 
 same manner as to a genera! report •, and lie is not obliged to apply to the court for leave to ex- 
 cept. Drever vs. MaudetUy, 7 Simons i?., 240. 
 
 RULE 8L 
 When the master has prepared the draft of his report, he '^^"""^f °f 
 
 ' ' r 7 settling re- 
 
 shall deliver copies thereof to such of the parties as apply for ^°"' 
 the same, and shall assign a time and place for the parties to 
 bring in objections, and for settling the draft of the report, and 
 no summons to see the draft of the report, and to take copies 
 thereof, shall be necessary. On the day assigned, or on such 
 other day as may then be assigned by the master for that pur- 
 pose, if objections are filed by either party, he may proceed to 
 hear the parties on such objections; and the master shall settle 
 and sign his report and cause it to be filed in the proper ofiice, Maser-sre- 
 within twenty days after the argument on such objections is settled" and 
 closed. If no objections are made to the draft, the master days
 
 lii CHANCERY RULES. 
 
 shall sign his report and file it in the proper office within ten 
 days after the time assigned for bringing in objections. 
 
 On a reference of exceptions to an answer, the master furnishes no draft of his report, but 
 the whole matter is ;irgued before him in the first instance. And if either party neglects to ap- 
 pear and argue the exceptions, such party cmnot, afterwards hring them before the court, 
 by excepting to the report of the master. Byington vs. Wood, 1 Paige i?.,143. 
 
 Where it is referred to a mas er to examine and report as to a particular fact, it is his duty to 
 draw the conclusion of fact from the evidence before him and report such conclusion only as 
 in a special verdict ; and it is irregular for him to set forth the evidence in his report unless he 
 is directed to do so by the order of reference. In Re. Hemiup, 3 Paige R., 305. 
 
 RULE 82. 
 ordertocon After the rcpoi't is filed, either party may have an order of 
 
 firm report. • ' i j j 
 
 course, to confirm the same, unless cause to the contrary there- 
 of be shown in eight days; and if no exceptions are filed and 
 served within that time, the order shall become absolute of 
 course, without notice or further order; or either party may 
 file exceptions, and have an order of course, to confirm the 
 report, so far as the same is not excepted to, and with the like 
 effect. 
 
 Irregularities in the proceedings in the masters off ce are not the proper subjects of exception 
 to the masters report; but the party aggrieved thereby should apply to the court to correct the 
 alledged irregularity, or to set aside the report, or to refer the report back to the master with 
 the directions to bim to have the irregularity corrected. Tyler ys. Simmons, 6 Paige R., 127. 
 
 RULE 83. 
 
 No process No proccss shall be issued, or othvr proceeding had, on any 
 
 on decree ' ' i a ^ j 
 
 ment.^^""^"'' ^^^^ dccrcc. Until the same is duly enrolled. And such pro- 
 proce^s to ccss. unlcss otherw'sc specially directed by the court, shall be 
 fronriheof- scalcd and issued by the register or assistant register, who 
 
 fice where ' i -r • i 
 
 the de-re- ; shall not suffcr any process to pass his seal, if it does not ap- 
 
 enroUed. * r i r 
 
 pear to be duly warranted. If a master is directed to sell real 
 estate under such decree, he may give the requisite notice of 
 sale previous to enrolment; but to protect the title of the pur- 
 chaser, the party for whose benefit the sale is made, shall cause 
 the decree to be enroibd, and produce a certificate thereof, 
 Decree to be beforc any conveyance shall be executed by the master. And 
 
 enrolled le- .' -^ •' 
 
 cuiToilof^^ where any previous decree or decretal order disposes of any 
 conveyance. ^^^^ ^^ ^^^ merits of the cause, or is necessary to explain the
 
 CHANCERY RULES. I'ii 
 
 final decree, it shall either be recited therein, or enrolled there- 
 with, as a part of the final decree in the cause. 
 
 Where the decree is final as to any branch of the cause, or as to any of tlio parlies, it must 
 be enrolled before a deed can be executed, on a sale under that part of the decree, and before an 
 execution can be issued to compel a compliance with such decree. Mint/iorne vs. Tompkins, 'Z 
 Paige H, 10'2. 
 
 The solicitor has no right to alter an execution afier it has been issued by the reeister. Nei- 
 ther has the register any right to issue process in blank to he filled up by ihc solicitor except 
 process to appear and answer, or process to compel the attendance of witnesses. JVeicitt vs. 
 Toicnsend, 5 Paige R., 80. 
 
 RULE 84. 
 A petition for a rehearing shall state the special matter or ^[,=j,'j;'[;'p°;r^r 
 cause, on which such rehearing is applied for, and the particu- •' "'"'"""e- 
 !ar points in which the decree or order is alledged to be erro- 
 neous; and the facts, if they do not appear from the records of 
 oi the court, shall be verified by affidavit of the party, or of 
 some other person. It shall also be accompanied by the ccrti- certificate of 
 
 r I •/ ,„.Q counsel 
 
 ficate of two counsel, that they have examined the case, and required. 
 that in their opinion the decree or order is erroneous in the 
 particulars mentioned in the petition. And a copy of the peti- 
 tion, with the usual notice of presenting the same, shall be 
 served on the adverse party, but the rehearing shall not be 
 
 considered as a matter of course in any case. And if a re- Noticeof ap- 
 plication gi- 
 hearins is not applied for within thirty days after the decree vemoad- 
 
 o t r J ^ verse party. 
 
 or order complained of, is entered, the court may require pay- 
 ment of the costs incurred by the adverse party, by any pro- 
 ceedings under the decree or order, as a condition of granting 
 the rehearing. 
 
 A rehearing is not a matter of course; but the granting or refusing thereof, rests in the dis- 
 cretion of the court. Land vs. Wickham, 1 Paige R., 250. 
 
 Where upon the hearing of a cause the ciunsel for the defendant after hearing tlie opening 
 argument of the complainan 's counsel abandoned the defence as hopeless, the court refused to 
 grant a rehearing upon the ordinary certificate of counsel. De Carters vs. La Fargc, 1 Paige 
 R., 574. 
 
 RULE 85. 
 
 Where a party is entitled to an order to stay proceedings, ^.^^.^^/J^ 
 or for temporary relief until he has time to give regular no- [.^^'^^''^JgfVn. 
 tice of a motion, or of presenting a petition for a hearing, or *^ ' 
 for any other purpose, he may make an ex parte application
 
 liv 
 
 CHANCERY RULES. 
 
 Papers to lie 
 serve I on 
 adverse 
 party. 
 
 Deposit re- 
 qiiireit on a 
 rehearing. 
 
 Agreements 
 as to the pro- 
 ceedings in a 
 cause to Le in 
 writin". 
 
 to the court, for an order that the adverse party show cause 
 why the motion, or the prayer of the petition, should not be 
 granted, and to stay proceedings, or for other temporary relief 
 in the mean time. And the adverse party shall be served with 
 a copy of the order, and of the petition, affidavit, or certificate 
 on which it is founded, the same length of time, before the 
 day for showing cause, as is required in the ordinary case of 
 special motions, unless the court shall specially direct a shorter 
 notice to be given. 
 
 RULE 86. 
 
 If a rehearing is granted, the petitioner shall lose the benefit 
 thereof, unless he shall, within ten days thereafter, deposit 
 with the register, fifty dollars, to answer the costs and dama- 
 ges of the adverse party, if the decree or order shall not be 
 materially varied. If the cause is reheard, the party obtaining 
 the reheating, shall have the right to open and close the argu- 
 ment. 
 
 RULE 87. 
 No private agreement or consent between the parties, in 
 respect to the proceedings in a cause, shall be alledged or sug- 
 gested by either of them against the other, unless the same 
 shall have been reduced to the form of an order, by consent, 
 and entered in the book of common orders; or unless the evi- 
 dence thereof shall be in writing, subscribed by the party 
 against whom it is alledged or suggested, or by his solicitor or 
 counsel. 
 
 Time on 
 rules and 
 orders. 
 
 Where a default is entered contrary to an agreement between the so'icitors of the parties, 
 the court cannot consider the default as irregular if the olijection is insisted on that the agree- 
 ment was not in writing. But a default ni;iy he set aside upon terms where the party against 
 whom it has been entered, has relied upon a verbal agreement of the adverse party. Wager 
 vs. Stickle, 3 Faige R., .MT. 
 
 This rule does not apply to agreements made by the parties, or their solicitors or counsel, in 
 the presence of the court ; or to an agreement relative to the proceedings on a reference made 
 in the presence of a master, and certified by the master to have been thus made. Corning vs. 
 Cooper, 7 Paige R., 587. 
 
 RULE 88. 
 
 All rules to lake effect, nisi, &c., unless otherwise specially 
 directed, shall be rules of eight days; and the time on all rules,
 
 CHANCERY RULES. Jv 
 
 orders, notices and proceedings, where a time is given or sta- 
 ted, shall, unless otherwise expressly provided, be deemed and 
 taken to be, one day inclusive, and one day exclusive; but if 
 the time expires on Sunday, the whole of the succeeding dav 
 shall be included. 
 
 Where u. proceeding in u cause is required to be had within a limited time, as within a cer- 
 tain number of days from or after the entry of an order, or the service of a notice, &c., the 
 whole of the first day is to be excluded in the conipulation of time ; but where previous notice 
 of a motion or other proceertin° in a suit, is required to lje given, tlic whole of the day on which 
 the motion was served, is included in the computation ; and the day upon which a motion is to 
 be made, or other proceedings had, is excluded. VandeTburgk vs. Van Rensselaer, 6 raife R., 
 147. 
 
 RULE 89. 
 
 The court upon special cause shown, may extend the time Timemaybc 
 
 - . . . II- " cvtcnded, 
 
 for putting in or serving any pleadins, or exception, or for anv ai'i 'lefauit 
 
 .'JO' I ■ J may iig ggj 
 
 Other proceeding which is required by the rules of the court, ='^'^''°n 
 to be done within a limited time; and may set aside any order, 
 or decree, obtained by default or otherwise, upon such terms 
 as may be deemed just and proper. 
 
 Where the proofs in the cause are regularly closed, the court will not open the order to close 
 the proofs for the purpose of enabling the defendant to establish an equitable defence. Fulton 
 bank vs. Beach, 1 Paige R., 429. 
 
 The court of chancery has power, even after enrolment, to open a resular decree obtained by 
 defiiull, and lo discharge the enrolment, for the purpose of giving the defendant an opportu- 
 nity to make a defence upon the merits, where he has lieen deprived of such defence either by 
 mistake or accident, or by the negligence of his solicitor. Millspavgh vs. McBride, 7 Paige 
 R., 509. 
 
 On an application to open a default, the answer or the substantial matters of defence, must 
 be exhibited, that the court may look into the same and see whether the defence is meritorious ; 
 and time will be given to prepare such answer or statement of the matters of defence. Stockton 
 vs. Williams, el. al.; in c/t., Dec. 2, 1640 ; MSS ; per Farnswurlh, chanrellor. 
 
 A master has no power to dispense with or to relax the general rules and orders of the court. 
 Smitk. vs. Webster, 3 Myl. fy Cra g R., 244. 
 
 RULE 90. 
 
 The accounts of the register, with the banks in which the >i;"i'HTin 
 
 ° which ac- 
 
 moneys are directed to be deposited, shall be kept in such a '^'""" °r"l°- 
 
 r ' I ^ ^ neys paid m- 
 
 manner, that in the cash books of the banks, and in the bank lobe^kept? 
 books of the register, it shall appear in what particular suit, 
 or on what account, the several items of money, credited or 
 charged, were deposited or paid out.
 
 Ivi CHANCERY RULES. 
 
 RULE 9L 
 
 <u"s'fo"/mo- Oi^ders upon the banks for the payment of moneys out of, 
 pai'dout of court, shall be made payable to the order of the person enti- 
 tled thereto, or of his solicitor, or his attorney, duly autho- 
 ized, and shall specify in what particular suit, or on what 
 account, the money is to be paid out, and the time when the 
 decree or order authorizing &uch payment, was made. 
 
 RULE 92. 
 
 court, 
 
 tlrandrnxal ^^^ register of each circuit shall have power to tax costs, 
 tionot costs. ^^^ ^^^ Q^ more masters residing in each circuit, shall be desig- 
 nated and appointed by the chancellor as taxing masters of such 
 circuit, who shall be authorized to tax costs ; and where costs 
 have been taxed by a register or master, upon hearing of the 
 parties, an application for a retaxation, may be made directly 
 to the chancellor. 
 
 The adx-erse party upon taxation of costs is entilled to notice of the taxation for the same 
 length of time as is^ prescribed by rule 72, as the time which is to be allowed for the service of 
 a summons upon a reference ; and a taxation of costs without such notice, is irregular and 
 may be set aside. Hoffman vs. Skinner, 5J'aige R., 526. f-See also, rule \.18.) 
 
 RULE 93. 
 
 Bill of costs If a bill of costs offered for taxation, by or on behalf of any 
 
 to specify 
 
 items. solicitor, or of any party who prosecutes or defends by a so- 
 
 licitor, or by or on behalf of any officer of this court, who 
 prosecutes or defends in person, the several items of disburse- 
 ments, and of the fees of officers of the court, shall be particu- 
 larly specified thei'ein, and not charged in gross, or they shall 
 be disallowed on taxation; and when witnesses' fees are charged, 
 the names of the witnesses shall be specified, and th-D i. umber 
 of days' travel and attendance of each. No allowance shall 
 be made, either as between party and party, or as between 
 solicitor and client, for the draft or copi ;s of any repetition of 
 the statement of the bill in the charging part thereof, or in the 
 interrogatories, or for any other unnecessary or improper mat- 
 ter inserted in any pleading, report, or other proceeding in a 
 cause. And where the same solicitor appears for two or more 
 defendants or different solicitors, who are partners, appear for
 
 CHANCERY RULES. Ivii 
 
 axa- 
 lodrfen- 
 nts who 
 
 ari- 
 
 several defendants, and separate answers are put in, or other ,^^°^"^^ 
 proceedings liad by or for the defendants separately, the taxing [,'°ni 
 officer, in the taxation of costs, either as between party and iy"^verin 
 party, or between solicitor and client, shall consider whether fence.' ^' 
 such separate answers, or other separate proceedings, were 
 necessary and proper; and if, in his opinion, any part of the 
 costs occasioned thereby was unnecessarily or improperly in- 
 curred, the same shall be disallow'ed. The affidavit of the so- Affidavit of 
 
 ' soliciUirto 
 
 licitor, or the officer who prosecutes or defends in person, shall i^^bi","of'^ 
 also be annexed to the bill before it is taxed, stating, according ^-^^If/to^ 
 
 taxation, ve- 
 
 aw 
 e 
 
 certain ca- 
 ses. 
 
 to the best of his knowledije and belief, tliat the several dis- rif/iim Ttie 
 
 . *" correc;nes3 
 
 bursements charged in the bill, have boon aplually and ncccs- ofthechar- 
 
 sarily incurred, or paid; tiiat the copies of exemplification of 
 documents charged therein, were actually and necessarily used, 
 or obtained for use; that such bill of cost contains no charge 
 for any draft, engrossment, or copy of any pleadinir, or other 
 proceeding, which has not been made, or for any other service 
 which has not been performed, except such prospective servi- 
 ces as are allowed by law, or the practice of the court, to be 
 taxed; and that the number of folios contained in tfie draft, or 
 in the copies of any pleading or proceedings are not over- 
 charged in such bill. But the taxinff officei', in lieu of the affi- Affidavit of 
 
 " . c? ' clerk or law 
 
 davit of the solicitor, or officer who prosecutes or delends in ['ec;eive'd?n' 
 person, may receive the affidavit of his clerk, or law partner, 
 annexed to, and verifying the correctness of such bill of costs; 
 provided a sufficient excuse is stated in such affidavit for not 
 producing the personal affidavit of such solicitoi-, or officer, by 
 reason of sickness, death, or necessary absence. 
 
 A trustee who refuses to join in the answer of his co-trustee, and who does not put in an an- 
 8wcr differing from that of such co-truslcc, is not entitled to costs. Young vs. ScoU, Jones' 
 Ezeh. R , 71. 
 
 In the bill of costs offered for taxation, each item of the examiner's, register's, and mas- 
 ter's bills, should be set out al leaglh, and not charge! in gross. Stafford vs. Bryan, 2 Paigt 
 R., 45. 
 
 Where postage, or other disbursetrents, are charged in a bill of costs, eachjtem of such dis- 
 b'lrsemenls, and the occasion and cireunislnnces of the e.\pcn:liture, should be particularly spc- 
 eified in the bill and verified by affidavit. Rogers vs. Rogers, 2 Paige R.. 459. 
 
 Vol. I. 8*
 
 Iviu CHANCERY RULES. 
 
 RULE 94. 
 
 Taxed bill of The taxcd bill of costs, with the original affidavit annexed, 
 
 costs and af- 
 
 fidavittobe gj^aii bg fljgfj -yvjth the register within twenty days after the 
 
 filed within & j j 
 
 twenty days, taxation; and before the solicitor or the officer who prose- 
 cutes or defends in person, shall be entitled to payment or 
 to issue an execution, or other process, for the collection of the 
 costs thus taxed. But if payment of the costs is volunta- 
 rily made within twenty days, the solicitor or officer, instead 
 of filing the taxed bill and affidavit, except where the bill of 
 costs required by law is to be annexed to a decree upon en- 
 rolment, may deliver such bill and affidavit to the party or 
 person from whnm he receives euch payment, endorsing a re- 
 ceipt for the amount received upon the taxed bill. And no 
 register or master, who is ordered to pay costs out of money 
 in his hands, shall pay the same until the taxed bill and affida- 
 vit are duly filed, as required by this rule. 
 
 RULE 95. 
 
 dosemort-^ In a bill for foreclosure or satisfaction of a mortgage, it shall 
 fet^out'the ° not be necessary or allowable to set out at length, the rights 
 
 riglns of de- , i i r i i 
 
 fendariisun- and Hiterests ot the several deiendants who are purchasers of, 
 
 necessarily. 
 
 or who have lien&-on, the equity of redemption in the mort- 
 gaged premises, subsequent to the registry or recording of the 
 complainant's mortgage, and who claim no right in opposition 
 thereto; but it shall be sufficient for the complainant, aftt-r set- 
 ting out his own right and interest in the premises, to state 
 generally, that such defendants have, or claim, some inte- 
 rest in the premises, as subsequent purchasers, or incum- 
 bratjces, or otherwise; and if any such rlftfendants are, by the 
 misstatements of the complainant in his bill, or oihcrwise, un- 
 necessarily compelled lo put in an answer to protect iheir 
 rights, the costs occasioned thereby may, in the discretion of 
 the court, be charged on the complainant personally; and if 
 such defendants unnecessarily put in an answer to such bill, 
 the extra costs occasioned by such answer, may be charged 
 on the defendants personally, in the discretion of the court. 
 
 Wheie the complainant in a mortgage case unnecessarily sets out the rights of the seyeral
 
 CHANCERY RULES. lix 
 
 defendants at length, tlie bill may be cTcepted to, for impertinence; and if not bo excepted to, 
 the extra costs occasioned by auch unnecessary matter in the complainant's bill, must be, disal- 
 lowed on taxation of costs. Union Ins. Co. vs. yan Rensselaer, 4 Paige It, 85. 
 
 RULE 96. 
 
 If a bill to foreclose a mortfraije is taken as confessed, or the a reference 
 
 DO 'of course, to 
 
 right of the con:)plainant, as stated in his bill, is adnnitted by an^nrdue 
 
 , , , 1 /• r ■ • £ X on 'he njort- 
 
 the answer, he may have an order of course, referring it to a gage. 
 master to compute the amount due to the complainant and to 
 such of the defendants as are prior incumbrancers of the mort- 
 gaged premises; and if the dcfondant is an infant, and has put 
 in a general answer by his guardian, or any of the defendants 
 are absentees, the complainant may have a similar order, of 
 course, referring it to a master to take proof of the facts and ^^"^f^of the 
 circumstances stated in the complainant's bill, and to compute ct'c\'mstin- 
 the amount due on the mortgage, preparatory to the hearing ^hl bit! 
 of the cause. But every such cause shall be regularly brought 
 to hearing at term, after the coming in of the master's report, 
 before a final decree is entei'ed therein; and if the bill has 
 been taken as confessed, the complainant shall show to the 
 court, at the hearing, by affidavit or otherwise, that the pro- 
 ceedings to take the bill as confessed, have been regular, ac- 
 cording to the rules and practice of the court. He shall also 
 show whether the bill has been taken as confessed against all 
 of the defendants, upon service of subpoena, or after an ap- 
 pearance, or whether some of them have been proceeded 
 ajiainst as absentees. 
 
 It is improper to detail tlie proceedings at length in an affidavit of regularity. The affidavit 
 should merely stale that the bill has been tiilien as confessed, upon a personal service of the 
 subpffina upon all of the defendants, or after a voluntary appearance, or upon a proceeding 
 against them, or some of them, as absentees, as the case may be, and that all the proceedings 
 to take the bill as confessed, have been regular. Nott vs. Hill, 6 Paige Jt, 9. 
 
 Where any of the defendants contest the complainant's rights, an order of course, to com- 
 pute the amount due on the mortgage cannot be entered under this rule ; but if there are any 
 of the defendants who are absentees, an order of course, to ascertain their rights, may be en- 
 tered under the twenty-second rule. Corning vs. Bailer, 6 Paige R., 17S. 
 
 In computing the amount due on a mortgage, the master is not authorized to allow the com- 
 plainant the amount of a premium paid for an insurance of the mortgaged premises, unless 
 it was paid by the express agreement of the mortgagor or the owner of the equity of redemp- 
 tion. But the master may allow the mortgagee for taxes paid by him, which were a lien on 
 the mortgaged premises. Feaure vs. Tf'inans, Uopk. R., 2S3. 
 
 If the whole mortgage money has not become due, the complainant may have a clause insert-
 
 Ix CHANCERY RULES. 
 
 ed in the order of courBC, entered under this rule, directing the master to ascertain and report 
 whelher the mortgaged premises can be sold in parcels. Everittva. Hoffman, 1 Paige R., 648. 
 
 Where the eomplainani's claim lo priority in a mortgage case is denied liy the defendant's an- 
 swer, the master, upon the ordinary reference to compute the amount due upon the mortgage, 
 previous to the hearing of tlie cause under this rule, is not authorized to settle the question of 
 priority between the parties, but must leave it for tlie decision of the court upon the hearing. 
 Harris vs. Fly, 7 Paige R., 421. 
 
 RULE 97. 
 
 iftiiereisa Oti the coming in and confiiination of the master's report of 
 
 surplus rais- r- i • t • i ii 
 
 edonthesaie the salc of mortgaged premises, if it shall appear there are any* 
 
 ofmortga- O o i ' I r 
 
 ged premises guj-pjug monevs remaining in court, after satisfying the amount 
 
 the subse- 1 •' o ' . o 
 
 cumbra"rcers duc the Complainant, any defendant, upon filing an affidavit 
 fe^enL-eYo'^''' that such surplus has been paid into court, and that he is enti- 
 
 9 s certain 
 
 their rights, tied to the same, or some part thereof, may have an order of 
 course, referring it to a master to ascertain and report the 
 amount due to such defendants, or to any other person, and 
 which is a lien upon such surplus moneys, and to ascertain the 
 priorities of the several liens thereon; to the end, that on com- 
 ing in and confirmation of the report, such further order and 
 and decree may be made for the distribution of surplus moneys, 
 as may be just; and every defendant who has appeared in the 
 cause, and every person who has left a written notice of his 
 claim to such surplus moneys with the register, or assistant 
 register, where the same are deposited, shall be entitled to no- 
 Mns^nnfo"In- I'ce to attend the master on such reference. And any person 
 eu'rpiu's"nio° making a claim to such surplus moneys, and who shall fail to 
 
 nevs, lialjle i i- i i • i • i i • i <• i 
 
 for costs. establish his claim, on the hearing beiore the master, may be 
 charged with such costs as the other parties have been subjec- 
 ted to, by reason of such claim; and the parties succeeding on 
 such reference, may be allowed such costs as the court may 
 deem reasonable; but no costs unnecessarily incurred on such 
 reference, or previous thereto, by any of the parties, shall be 
 allowed on taxation, or paid out of such surplus. 
 
 RULE 98. 
 
 S'litem.how '^^^ petition for the appointment of a guardian, ad litem, 
 appointed. ^\^^\\ ]qq by y\^Q infant in person, if he is of the age of fourteen 
 
 years and upwards; but if he is under fourteen, it shall be 
 presented by his next kin, or some other friend of the infant.
 
 CHANCE liY RULES. hi 
 
 who has no interest in the suit, adverse to that of tlie infant. 
 
 Uut if an infant defendant, or some disinterested relative or when np- 
 
 poiiilcd on 
 
 friend, in his behalf, does not procure the appointment of a appiicuion 
 
 ' 'I 1 ' ol coiii[ilajn- 
 
 guardian, ad litem, witiiin the usual time for appearance, as ■'"'• 
 prescribed by the rules of this court, the adverse party may 
 apply to the court to appoint a suitable person as the guardian 
 for such infant; and such party in his petition, shall briefly 
 state the age and residence of such infant, the general object 
 of the suit or proceeding, and the nature of the infant's inter- 
 est therein. 
 
 The complainant, or bis solicitor, is not pcnnlttej to nominate a guardian, ad litem, for an 
 infant defendant ; but upon the appliaition of the complainant, the chancellor will designate 
 an officer of the court to act as guardian, ad litem, if the infant does not, within ten days after 
 the service of the order to procure a guardian to be appointed on his own petition. Knicker- 
 hocker vs. De Freest, 2 Paige ft., 301. 
 
 A copy of the order may be served personally upon the infant, if he is of the age of fourteen 
 years, or upwards, and if he is under that age, then upon his general guardian, or the person 
 with whom he resides. Idem. 
 
 Where the infant is a non-resident, special directions must be given as to the manner of ser- 
 vice of the order, if any notice thereof shall be deemed requisite. Idem. 
 
 RULE 99. 
 
 No guardian, ad litem, for an infant defendant, or next friend guaJ.ji'aV,!'^ 
 of an infant complainant, unless he has given security to the 
 infant according to law, shall, as such guardian, receive any 
 money or property belonging to such infant, or which may be 
 awarded to him in the suit, except such costs and expenses as 
 may be allowed by the court to the guardian, out of the fund, 
 or recovered by the infant in the suit. Neither shall the gene- 
 ral guardian of an infant receive any part of the proceeds of 
 the sale of real property belonging to such infant, sold under a 
 decree or order of the court, until the guardian has given such 
 further security for the faithful discharge of his trust, as the 
 court may direct. 
 
 RULE 100. 
 
 All bills for the purpose of obtaining a divorce, whether the vorce't'obe 
 husband or wife is complainant, shall be duly verified by oath, *''^°"°*'*'- 
 in the usual manner of verifying bills, where by the course and
 
 Ixii CHANCERY RULES. 
 
 ofcertain'^ pi'actice of the court, an oath is required. In a bill for a di- 
 inser"fi'ki''^ vorcG, On the ground of adultery, the complainant must also 
 vo[ce°'^'^'" positively aver, that the adultery charged in the bill, was com- 
 mitted without his consent, connivance, privity, or procure- 
 ment: and that he has not voluntarily cohabited with the de- 
 fendant since the discovery of such adultery. 
 
 If a bill for a separation is filed by a wife in her own name, the defendant may demur, ffood 
 vs. Wood, 2 Paige R., 454. 
 
 A feme covert cannot file a bill against her husband without pro chein ami. Peltier vs. Pel- 
 tier, 1 fforr. Ch. R., 19. 
 
 But under the provisions of chapter two title seven part second, (R. S. 336, gee. 14,J the wife 
 aVing a. petition foT a divorce, must, (if of souiid mind and of the age of legal consent to a niar- 
 ringe,) sign the petition. Graham vs. Graham, MSS. in Ch. August, 1840. Per Farnsworth, 
 chancellor. 
 
 RULE 101. 
 
 Reference to If any such bill is taken as confessed, or the facts charged 
 
 take proof of 
 
 f^sciiar- therein are admitted by the answer, the complainant may ap- 
 ply to the court, on any regular motion day, or in term, upon 
 due proof of the regularity of the proceedings to take the bill 
 as confessed, or upon the bill and answer, for a reference to a 
 master to take proof of all the material facts charged in the 
 bill, and to report such proof to the court, with his opinion 
 thereon. 
 
 Upon a bill to annul a marriage, on the ground of physical incapacity, if such bill he taken as 
 confessed, the defeniant, if within the jurisdiction of the court, will he required to answer, on 
 oath before the master, as to the facts alledged in the bill, and to submit to such a personal exa- 
 mination as may be necessary te ascertain the existence of the alletlged incapacity, and wheth- 
 er the same is incurable. Devanbaugh vs. Devanbaugh, 5 Paige R,, 554. 
 
 RULE 102. 
 Adultery of ^he defendant in the answer, may set up the adultery of the 
 
 theconiplai- > ^ i j 
 
 may'btset complainaut, or any other matter which would be a bar to a 
 
 upmthean- jj^^j.^^g^ Separation, or the annulling of a marriage contract; 
 
 and if an issue is taken thereon, it shall be tried at the same 
 
 time, and in the same manner as other issues of fact in the 
 
 cause. 
 
 The defendant in his answer may deny the adultery charged in the bill, arid may also in the 
 same answer, set up the adultery of the complainant, or a condonation of the offence, in bar of 
 ths suit. Wood, vs. Wood, 2 Paige R., 108. 
 
 And If the adultery of the husband is not discovered, or is not committed until after the ans-
 
 CHANCERY RULES. Ixiii 
 
 wer of the' defendant has been put in, tlic court, upon a proper application, will permit the de- 
 fendant to put in a supplemental answer, or to file a cross bill, for the purpoFf of selling up 
 such new defence. Smith vs. Srnith, 4 Paige R., 432. 
 
 RULE 103. 
 
 No sentence or decree of nullilv, declaring; void a marriaf^e >'o sentence 
 
 . ' o o ol nullity or 
 
 contract, or decree for a divorce, or for a separation or limited 'l![^j.'^^^f^^^' 
 divorce, shall be made of course, by the default of the defen- b^r'oTs'^n", 
 dant; or in consequence of any neglect to appear at the hear- 
 ing of the cause or by consent. And every such cause shall be 
 heard after the trial of the feigned issue, or upon the coming 
 in of the master's report, at a stated term of the court; but 
 when no person appears on the part of the defendant, the de- 
 tails of the evidence in adultery causes shall not be read in 
 public, but shall be submitted to the chancellor in open court. 
 
 RULE 104. 
 
 When a narty is ordered to pay the costs of any interlocu- Payment of 
 
 ' ^ ... imerlocutory 
 
 tory proceedings, and no time of payment is specified in the '^"^[^•^H'^J 
 order, he shall pay them within twenty days after the filing of 
 the taxed bill, and affidavit and service of a copy of the order 
 of such taxed bill; or if a gross sum is specified in the order, 
 within twenty days of service of a certified copy of the or- 
 der. And if he neglects or refuses to pay such costs within 
 the time prescribed as aforesaid, or specified in the order, the 
 adverse party, on an affidavit of the personal service of such 
 copies, and a demand of payment, and that such costs have 
 not been paid, may have an execution therefor, or move for 
 an attachment against the delinquent. 
 
 A pEirty who is conimitled as for a contempt for the non-payment of costs or other sum of 
 money, is entitled to the jail lil)crtics. Tfic People vs. Bennett, 4 Paig-e R., 2S-i -, 1 I/offm. Pr., 
 431 ; 2 Id., 9*2; Van Wezlc vs. fan Wezle, 3 Paige R., 38 ; Graham vs. Graham, in Ch. Febru- 
 ary term, 1841, per Farnstcorth, chancellor, MSS. But if he is committed for the non-payment 
 of a fine imposed upon him by tlie court, upon a conviction for a contempt, he must be confined 
 within the walls of the prison. The People vs. Bennett, 4 Paige R., 282. 
 
 A party in contempt may apply to the court to set aside proceedings against him which arc 
 irregular. King vs. Bryant, 3 Myl. <V Craig R., 191. (See also, Peltier vs. Peltier, 1 Harr. Ch. 
 
 R., 19.; 
 
 A complainant who is in contempt for not paying the costs of a motion, may still compel the 
 defendant to answer his bill. Bates vs. mison, 3 Myl. if Craig's R., 197. But a parly is not 
 to apply to the court for a favor until he has purged his contempt. Jokmon vs. Phinner/, 1 
 Paige R, 646.
 
 Ixiv CHANCERY RULES. 
 
 RULE 105. 
 
 Bill of re- 
 view not to 
 be file I with- 
 
 On filing a bill of review, or other bill in the nature of a bill 
 oun'eavl,""' of roview, the connplainant shall make the like deposit or give 
 
 anil a deposit , , , . , , . , . 
 
 to be made, security to the adverse party, in the same amount which is or 
 would be required on an appeal from an order or decree com- 
 plained of; and no such bill shall be filed, either upon the dis- 
 covery of new matters, or otherwise, without special leave of 
 the court first obtained, nor unless the same is brought within 
 the time allowed for bringing an appeal. 
 
 Where the complainant in a bill of rcWew, ihroiigh a mistake as to the practice, neglects to 
 give security, or to make the requisite deposit, the court may permit him to do it, nunc pro tunc. 
 Webb vs. Pell, 1 Paige R., 564. 
 
 A bill of revivor and supplemental bill in the nature of a bill of review, must be founded up- 
 on an affidavit of the discovery of new matter ; and it cannot be filed without the special leave 
 of the court, and upon giving security as on a bill of review. Pendleton vs. Fay, 3 Paige R., 
 204. 
 
 RULE 106. 
 Proceedings Whcn the final decree awards costs to any or all of the par- 
 
 to compel • ' 
 
 furnuh taxed ^'^^' ^^ ^^ V^^^ °^^ ^^ ^^^ procccds of a salo, or Otherwise, any 
 bill of costs, party -who wants an enrolment, may give notice to any other 
 party entitled to costs under the decree, to file a ta.xed bill of 
 such costs with the register with whom such decree is entered, 
 within fifteen days, or that the decree will be enrolled without 
 such taxation. 
 
 RULE 107. 
 
 If the parly If a party, on whom such notice is served, neglects to file 
 file a taxed his taxcd bill of costs within the time prescribed, the party 
 
 bill, thede- . jt i • r i i ' •' 
 
 creemaybe crivinsT such notice, on filinij an affidavit of the due service 
 
 enrolled & & ? o 
 
 without it. thereof, may have the decree enrolled, without annexing there- 
 to the taxed bill of the party, who has neglected to fite the 
 same. 
 
 RULE 108. 
 The party When such taxcd bill is received at any time before the ac- 
 
 neglecting to 
 
 furnish a tual enrolment of the decree, it shall be considered as in time, 
 
 taxed bill of ' ' 
 
 JoLTthe^'^" and shall be annexed to the enrolment, as required by law. 
 same. g^^ j^ ^^^ party neglects to file his taxed bill of costs in the
 
 CHANCERY RULES. ixr 
 
 office where the final decree is entered, until after such decree 
 has been regularly enrolled, he shall forfeit his right to cost 
 under the decree. 
 
 RULE 109. 
 
 Where a creditor, by judgment or decree, files a bill in this ^^[f to^ga^h 
 court against his debtor, to obtain satisfaction out of the equi- tcrcsu.'must 
 table interests, things in action, or other property of the lat- amount due. 
 ter, after the return of an execution unsatisfied, he shall state 
 in such bill, either positively, or according to his belief, the 
 true sum actually and equitably clue on such judgment or de- 
 cree, over and above all just claims of the defendant, by way 
 of offset, or otherwise. He shall also state that he knows, or Andtiievs- 
 
 1 1 !• I 1 f 1 I lueoflhede- 
 
 has reason to believe, the defendant has equitable interests, fcndanfs 
 
 '■ property or 
 
 things in action, or other property, of the value of one hmidred ^sens. 
 dollars or more, exclusive of all prior claims thereon, which 
 the complainant has been unable to discover and reach by exe- 
 cution on such judgment or decree. The bill shall likewise 
 contain an allegation that the same is not exhibited by collu- 
 sion with the defendant, or for the purpose of protecting the 
 property or effects of the debtor against the claims of other 
 creditors; but for the sole purpose of compelling payment and 
 satisfaction of the complainant's own debt. 
 
 A creditor's bill cannot be filed until after the return day of the execution against the defend- 
 ant, although the execution is actually returned before that time ; as the complainant must 
 state in his bill the time when the execution was returnable, as well as the sheriff's return. 
 Cassiday vs. Meacham, S Paig-eR.,3U.; Stewart VS.. Stevens, 1 Harr. Ch. R., 109. 
 
 AH the judgment debtors may be made parties to a creditor's bill, if any of tliem, or all of them 
 collectively, have property exceeding one hundred dollars, exclusive of prior claims thereon, 
 which property could not be reached by the execution at law. And one of such judgment debt- 
 ors, who is himself destitute of property, will not, for that reason, be entitled to costs, except 
 in a case where the complainant, instead of taking the bill as confessed against him, has com- 
 pelled him to appear, or to answer unnecessarily. Van Cleef vs. Sickles, 5 Paige R., 505. 
 
 The omission in a creditor's bill, of the averments required by this rule, is a good ground of 
 demurrer. McElicain vs. Willis, 3 Paige R., 505. 
 
 This rule is adopted from the IPOtli rule of the court of chancery of the state of New York, 
 and the word " or," after the word " dollars," should be " and," to make the rule as broad as 
 the statutory provision, {R. S., 365, sec. 24,) to which it is intended to conform. The averment 
 should be, " that the value of the defendant's equitable interests, &c., exceeds, or is more than 
 one hundred dollars. (See Bradt vs. Kirkpatrick, 1 Paige R., 63.; 
 
 The complainant must show affirmatively in his bill, that he has exhausted his remedy by 
 issuing an execution to the county in which the defendant resided at the time when such e.xe- 
 eution was issued; or he must state in his bill some sufficient excuse for issuing his execution 
 to a different county. Retd vs. Wheaton, 7 Paige R., 663. 
 
 Vol. 1. 9*
 
 Ixvi CHANCERY RULES. 
 
 A creditor's bill should aver that the defendant was a resident of the county to which the 
 execution was issued ; after stating the county to which the execution was issued, the bill 
 should aver, " where the said A. U. then resided." Gaylord vs. Hendrichson, in Ch., July 21. 
 1840; per Walicorth, chancellor. 
 
 AVhere the plaintiff brings a suit at law in a courl of the United States, and obtains judgment 
 therein, he cannot, upon the return of an execution unsatisfied, file a bill in the court of chan- 
 cery of this state against his debtor, to reach the equitable rights of such debtor, which are not 
 subject to a sule upon the execution at law. Tarbell vs. Griggs, 3 Paige R., 207. 
 
 A creditor's bill may be filed upon a judgment at lavs', after the return of an execution unsatis- 
 fied, although the complainant has brought a suit upon such judgment, and recovered a new 
 judgment. Bates vs. Lyons, 7 Paige R., 85. 
 
 The assignee of a judgment, after an execution has been returned thereon unsatisfied, may 
 file a creditor's bill upon such judgment, vs^ithout taking out a new execution after the assign- 
 ment. Gleason vs. Gage, 7 Paige R., 121. 
 
 RULE 110. 
 
 Such bills Every such creditor's bill shall be verified by the oath of the 
 
 mustbeveri- -" ^ j " J 
 
 fndmayte' Complainant, or in case of his absence from the state, or other 
 c^u^rse!"' °^ sufficient cause shown, by the oath of his agent or attorney. 
 Such bills may be amended of course, in the same manner as 
 bills not sworn to, if the amendments are merely in addition 
 to, and not inconsistent with what is contained in the original 
 bill. But all such amendments shall be verified by oath in the 
 same manner as the bill is required to be verified. 
 
 In the order for leave to amend a creditor's bill under this rule, the particular amendments in- 
 tended need not be specified. Hunt vs. Holland, 3 Paige R., 78. But no order to amend is 
 now required. (See Rule 28.) 
 
 RULE 111. 
 
 Debtor need The dcbtor against whom a creditor's bill is filed, shall not 
 
 not answer 
 
 the bill, but bg subjected to the expense of puttmg in an answer thereto in 
 l'L"'!!=''L'r the usual manner, if he shall cause his appearance to be enter- 
 fhataVc'el cd within twenty days after the return day of the subpoena, 
 pointed*!''' and shall, within the time allowed for an answer, deliver to the 
 complainant, or his solicitor, a written consent that an order 
 may be entered taking the bill as confessed; and for the ap- 
 pointment of a receiver, and for a reference to take the exami- 
 nation of the defendant, in conformity to this rule. Upon pre- 
 senting such written consent to the court, the complainant may 
 have a special ordei", founded thereon, directing the bill to be 
 taken as confessed against the debtor, and referring it to such 
 master as the court may designate in such order, to appoint a 
 receiver, with the usual powers, and to take from him the re-
 
 CHANCERY RULES. Ixvii 
 
 quisite security. The order shall also direct the defendant to whattheor- 
 
 {• 111- '''"' °'' *^''"" 
 
 assign, transfer, and deliver over to the receiver, on bath, un- ^cm musi 
 
 contain. 
 
 der the direction of the master, all his property, equitable in- 
 terests, things in action, and eflects; and that he appear before 
 the master, from time to time, and produce such books and pa- 
 pers, and submit to such examination as the master shall di- 
 rect, in relation to any matter which he might have been le- 
 gally required to disclose, if he had answered the bill in the 
 usual manner. The expense of taking down such examination 
 by the master, shall be paid by the complainant, in the first in- 
 stance, and may be taxed and allowed to the latter as a part 
 of his necessary costs in the suit. The complainant shall also 
 be at liberty to examine witnesses before the master, as to the 
 property of the defendant, or as to any other matter charged 
 in the bill and not admitted by the defendant on such exami- 
 tion. And the complainant shall cause a written or printed copy of rule 
 
 ^ and notice to 
 
 copy of this rule to be served on the defendant at the time of |he ^defend"" 
 the service of the subpunna, with a notice to the defendant that answer?" 
 an entry of his appearance and an answer on oath is required; ''*^''""■^''• 
 or such defendant shall not be answerable to the complainant 
 for the costs of the proceedings to compel an appearance and 
 answer. 
 
 Where a defendant lias heen examined on oath l)efore a master, upon a reference to appoint 
 a receiver upon a creditor's bill, his examination m.iy be given in evidence by the adverse par- 
 ty, upon the liearing of the cause, to contradict tlie defendant's answer. Gihon vs. Albert, 7 
 Faige R., 278. 
 
 Under the usual ordiT to appoint a receiver upon a creditor's bill, the defendant, although lie 
 denies on oath that he has any properly, Is bound to execute to the receiver a formal a.ssignment 
 of all his property, equitable interests, and choscs in action, as direcled by the order; to enable 
 the receiver to lest the validity of any assiffnment or other disposition which llic defendant may 
 have made of his property or effects. Chipman vs. Sabhaton, 7 Paige It , 17. 
 
 RULE 112. 
 
 Every receiver of the property and elTects of the debtor, The receiv- 
 er's powers 
 appointed in a suit upon a cred-tor's bill, shall, unless restricted and duties. 
 
 by the special order of the court, have general powei and au- 
 thority to sue for and collect all the debts, demands and rents 
 belonging to such debtor, and to compromise and settle all such 
 as are unsafe and of a doubtful character. He mav also sue
 
 Ixviii CHANCERY RULES. 
 
 in the name of the debtor, where it is necessary or proper for 
 him to do so, and he may apply for and obtain an order, of 
 course, that the tenants of any real estate belonging to the 
 debtor, or of which he is entitled to the rents and profits, at- 
 torn to such receiver and pay their rents to him. He shall 
 also be permitted to make leases from time to time, as may be 
 necessary, for terms not exceeding one year. And it shall be 
 his duty, without any unreasonable delay, to convert all the 
 personal estate and effects into money; but he shall not sell 
 any real estate of the debtor without the special order of the 
 Receiver not court. He is not to be allowed for the costs of any suit 
 
 allowed 
 
 cosisincer- brought bv him against an insolvent from whom he is unable 
 
 tain cases. o J o 
 
 to collect his costs, unless such suit is brought by order of the 
 
 court, or by the consent of all persons interested in the funds 
 
 Receiver in his hands. But he may sell such desperate debts, and all 
 
 may sell bad •' '■ 
 
 debts at auc- Qthor doubtful claims to personal property, at public auction, 
 giving at least ten days' notice of the time and place of such 
 sale. 
 
 The answer of a defendant to a creditor's bUl, that he has not property to the amount of one 
 hundred dollars, is not a full defence to the suit, zjor a sufficient reason for reftising to appoint 
 a receiver. Fitzkugh vs. Everingham, C Paige R., 23. 
 
 Afler a bill has been taken as confessed against the defendant for want of appearance, an 
 application for the appointment of a receiver, or for an injunction or ne exeat, against the de- 
 fendant may be made ex pane, and without notiae thereof to him. Austinvs. Frigueira,1 Paige 
 R., 56. 
 
 The complainant in a creditor's bill may apply for the appointment of a receiver, after Uie 
 service of the subpoena and before the time limited by the rules of Uie court for the defendant's 
 appearance has expired ; but in that case notice of the application must be served upon the de- 
 fendant. Idem. . 
 
 Where separate judgments have been obtained against the drawer and endorser of a note, 
 both may be joined in one creditor's bill. Idem. 
 
 RULE 113. 
 
 The recei- Where several, bills are filed by different creditors against 
 whifre"evL the samc debtor, no more than one receiver of his property 
 med. ^ ^"^^ and effects shall be appointed, unless the first appointment has 
 been obtained by fraud or collusion, or unless the I'eceiver is 
 an improper person to execute the trust. The receiver shall 
 give security suflicient to cover the whole property and effects 
 of the debtor, which may come into his hands by virtue of his 
 office; and he shall hold such property and effects for the be-
 
 CHANCERY RULES. Ixix 
 
 nefit of all creditors who have commenced or shall commence 
 similar suits during the continuance of" his trust, to be disposed 
 of according to their legal or equitable priorities. He shall ,^^pay ov^"'^ 
 not pay over the funds in his hands to the parties or to any hem^char-" 
 
 .... ... 1 • 1 1 1 gcd wiihoul 
 
 Other person, without bemg specially authorized to do so by special or- 
 an order or decree of the court; nor shall he be discharged 
 from his trust without a special order, to be obtained upon a 
 written consent of all the parties interested in the property in 
 his hands, or upon due notice of the application. 
 
 A receiver is entiiled to notice of an application lo discharge him from his office as such re- 
 ceiver. AUorney General vs. The Haberdasher's Co., 2 Lond. Jurist, 916. 
 
 Where property is rightfull.v in the hands of a receiver, it is In the custody of the court, and 
 any person who takes the property out of the possession of the receiver, without permission of 
 the court, after he has notice of the character in which such possession is held, is guilty of a con- 
 tempt. Noe vs. Gibson, 7 Paige R., 51o. 
 
 RULE 114. 
 
 When another suit is commenced, after the appointment of Thereceiver 
 
 * ' to keep sepa- 
 
 a receiver, the same person may be appointed receiver of such [^^^^l' 
 subsequent suit, and shall give such further security as the 
 court shall direct. He shall keep a separate account of any 
 property or effects of the debtor which may have been ac- 
 quired since the commencement of the first suit, or which may 
 be assigned to such receiver under the appointment in the last 
 cause. 
 
 RULE 115. 
 
 No injunction issued upon any such creditor's bill, shall be con- ]f;^^,'j^j*?^n*'^ 
 strued to prevent the debtor from receiving and applying the t"r^s")iiia!^'' 
 proceeds of his subsequent earnings to the support of himself 
 or of his family, or to defray the expenses of the suit, or to 
 prevent him from complying with any order of this court, 
 made in any other cause, to assign and deliver his property 
 and effects to a receiver, or to restrain him from making the 
 necessary assignment to obtain his discharge under the insol- 
 vent laws, unless an express provision to that effect, is contain- 
 ed in the injunction.
 
 Ixx CHANCERY RULES. 
 
 RULE 116. 
 
 orriersupon When two Or more special motions or applications in the 
 
 special mo- 
 tions decided same suit, are decided at the same time, or on the same day, 
 
 at the same ' ' » ' 
 
 emere(?io- O'" Several directions are given by the court in relation to the 
 ^''"^'' suit, the whole shall be entered together as one order, unless 
 
 the court shall otherwise direct. And when a party is enti- 
 ordexfo'?"'^^ tied to enter two or more orders, of course, in a suit at the 
 certoin'cases, samc time or on the same day, they shall be entered together 
 as one order, as ouc Order; and he shall only be allowed, upon the taxation 
 
 of costs, for the expense of entering one order. 
 
 AVhere several applications are decided at the Siimc time, if the party who draws up the or- 
 der omits to s;ate therein, a part of the directions of the court, which were given on some of 
 tlie applications, tlie adverse party, instead of entering a separate order, should propose amend- 
 ments to the first order, as drawn up, or should apply to have such order corrected, so as to 
 embrace the whole directions of the court. Hunt vs. Wallis, 6 Paige R., 371. 
 
 RULE 117. 
 
 Customary Jn cascs whcro no provision is made by statute or by these 
 
 practice of * j ,/ 
 
 gove°nTnMi- Tulcs, the procccdings of this court shall be according to the 
 otherwise customary practice, as it has heretofore existed, in cases not 
 provi e or. p^.^^^^^^ f^j, ]jy gtatutc Or by the written rules of the court. 
 
 These rules shall commence and take effect on the first day of 
 January, A. D. 1839; from and after which time, all former 
 rules and orders of this court, regulating the practice thereof, 
 are abolished. 
 
 The following rule was adopted January 19, 1841. 
 
 RULE 118. 
 
 Before any officer or party claiming costs or fees, taxable in 
 this court, shall be entitled to demand payment thereof, such 
 costs or fees shall be taxed by a taxing officer of this court; 
 but no officer whatever shall tax his own costs or fees. The 
 same notice of taxation shall be given to the party to be 
 charged therewith, if such party has appeared in the cause or 
 proceedings, as is required by the seventy-second rule of this 
 court.
 
 CASES IN CHANCERY.
 
 CASES IN CHANCERY. 
 
 JuBA Barkows and others vs. Ellis Doty. 
 
 The Court of Chancery will not Lake jurisdiction of a case where there is a plain iind adequate First Circuit, 
 remedy at law. 
 
 A party v.'Jio hasi a defence at law, of which he is advised, and neglects to make ii, conies loo Barrows 
 late to this court to ask to be relieved against the judgment. Doty. 
 
 The bill in this case was filed in the circuit court of the coun- 
 ty of Wayne, February 7th, 1837, before the organization of 
 the court of chancery, and afterwards was transferred to this 
 court. 
 
 The bill stated that in the month of February, 1834, Juba 
 Barrows being under a pressing necessity for money, made 
 his wants known to one Charles Tryon, who said he expected 
 to have money put into his hands by another person to loan, 
 which other person Barrows understood to be Ellis Doty; 
 that soon afterwards Tryon did actually loan to Barrows $44, 
 for which he gave his two several promissory notes for #33, 
 each payable in 90 days to Tryon or bearer^ which notes 
 were signed by Thomas Palmer and John Howard as securi- 
 ties; that it was at the time agreed between Barrows and 
 Tryon that if Barrows should pay $50, when the notes be- 
 came due, it was to be received in full satisfaction thereof, 
 and if not paid at that time, Barrows should pay the amount 
 of $50, with four per cent, per month, from the time the same 
 became due; that Tryon afterwards became indebted to Bar- 
 rows in the sum of $20, which Tryon agreed to endorse on 
 the notes; that when the notes became due, Barrows called 
 
 Vol,. I. 1
 
 Barrows 
 
 vs. 
 Doty. 
 
 3 CASES IN CHANCERY. 
 
 First Circuit, on Try Oil several times with the money to pay the notes, and 
 he made excuses that he could not attend to it then, saying a 
 few days would make no difference, and on one occasion said 
 the notes were at Judge Doty's; that Doty afterwards told 
 Barrows that he held the notes and that payment was to be 
 made to him; that he took the notes for the face of them, and 
 refused to allow the $20 which Tryon had agreed to endorse; 
 that BarroAvs offered then to pay the same if Doty would de- 
 duct the #20, which he refused to do. 
 
 That Doty afterwards recovered judgments on the notes for 
 the full amount of the face of the same, and was about to take 
 out execution. 
 
 The bill further alledged that Barrows had always been rea- 
 dy and willing, and still was ready and willing, to pay the 
 actual amount of money loaned, with legal interest thereon, 
 and prayed for an injunction to restrain the collection of the 
 judgments. An injunction was granted January 2, 1835. 
 
 A. D. Fkazer, Solicitor for Ellis Doty, moved to dissolve 
 the injunction and to dismiss the bill for want of equity. 
 
 H. Chipman, Solicitor for complainant, opposed the mo- 
 tion. 
 
 The Chancellor. — This bill cannot be sustained, for the 
 usury was a good defence at law, and Tryon being the agent 
 who negotiated the loan, must have known all the facts, and 
 might have been called as a witness. 
 
 The complainants have suffered judgments to be taken on 
 the notes, with a knowledge of all the facts, without making 
 their defence, and they come too late to this court to ask to 
 be relieved against those judgments. {See Thompson vs. Ber- 
 i-y &f Van Buren, 3 /. C. R., 395. Lansing vs. Eddy, 1 /. C. 
 R., 49.) The injunction must be dissolved and the bill dis- 
 missed.* 
 
 Bill dismissed. 
 
 ' See Wright »». King, page 12.
 
 CASES IN CHANCERY. 3 
 
 Thomas Rowland vs, Ellis Doty and others. 
 
 It is a general rule, that wlicre ihc bill prays relief to which the complainant is entitled, and First Circuit. 
 
 whicli cannot be luul at law, it is sufficient to give the court of chancery jurisdiction of the ^.^^V^^fc^ 
 
 cause. Rowland 
 
 rs. 
 The 20rh section of ihc act of 1S33, (laws of Michifran, pajje 358,) gives this <ourt express au- Doty. 
 
 tliorily to inquire into aii<I settle conflictin;; claims of title to land. 
 
 The ri?ht to sell lands for taxes, under the act of 1827, (laws of Michigan, page 377,) is founded 
 on the fact of the non-payment of the lax, and a sale made, after the tax has l)cen paid, is un- 
 authorized, and the treasurer's deed on such sale conveys no estate or tiUe whatever. 
 
 The collector's return that the tax has not been paid, is such evidence only of non-payment as to 
 justify the treasurer in selling; and the treasurer's deed on such sale is " conclusive evidence" 
 only of the fact that the sale by him was regular according to the provisions of the act. 
 
 A parly claiming to have paid the lax before sale, is not precluded by the treasurer's deed, but 
 may go behind it and show that fact. 
 
 The bill in this case set forth and alledged that Thomas 
 Rowland was, in the year 1822, owner in fee simple, of lot 
 number 59, in section number 8, in the city of Detroit; that 
 he continued the owner and possessor of said lot up to the 
 time of the filing of the bill, and made permanent improvements 
 on the same to the value of $1,000. That all the township and 
 county taxes assessed on said lot had been paid by him from the 
 year 1822, up to the time of filing the bill. That a few days 
 before the filing of the bill, he was informed for the first time, 
 that Peter Desnoyers, the former treasurer of the county of 
 Wayne, pretended to sell said lot on the third day of October, 
 1831, for the taxes pretended to be due thereon for the year 
 1828, to one Rufus Wilson. In the year 1833, one David 
 French, (who was the successor to Desnoyers in the office of 
 treasurer of said county,) executed a fee simple conveyance 
 of said lot to said Wilson and acknowledged the same accord- 
 ing to law. Wilson conveyed to Ellis Doty, and Doty had ap- 
 plied to Theodore Williams, register in the city of Detroit, to 
 have the deed from French to Wilson, recorded. 
 
 The bill further stated, that Rowland had paid the taxes on 
 said lot for the year 1828, and that he then held, in his posses- 
 sion, the receipt of Abraham C. Canniff, bearing date October
 
 4 CASES IN CHANCERY, 
 
 First circuit. 21, 1828, by which said Canniff, who was then collector for the 
 Rowland township and city of Detroit, acknowledged to have received 
 Dot'y. from Rowland, the sum of $21 71, being the amount of Row- 
 land's county tax for said county for the year 1828, and also 
 the further sum of $6 78, being the amount of the township 
 and city tax for said year. 
 
 The bill further alledged, that Rowland, being in possession 
 of said lot, was unable to divest said Doty of his pretended 
 title to the same by an action of ejectment or any other pro- 
 cess of law whatever, and prayed that the deed from French 
 to Wilson might be decreed to be given up to be cancelled, as 
 also all pretended conveyances from Wilson to Doty, and that 
 said Vv^ilson and Doty assign all their supposed right to said 
 lot to Rowland; and also prayed for an injunction to restrain 
 Wilson and Doty from incurbing the title to said lot, and to 
 restrain Williams from recording said deed. 
 
 The bill was taken as confessed as against all the defendants 
 except Wilson, who answered and disclaimed, and Doty, who 
 demurred. A motion was also made to dissolve the injunc- 
 tion for want of equity. 
 
 A. D. Frazer, in support of the demurrer and motion to dis- 
 solve. 
 
 It is urged by the defendant that the injunction in this case 
 be dissolved for want of equity in the bill, in as much as the 
 complainant has full and adequate remedy at law, and no 
 ground is suggested in the bill to give this court jurisdiction. 
 
 The legality or validity of the treasurer's deed is the ques- 
 tion necessarily raised in this case. It is, therefore, properly 
 examinable at law. Whether the requirements of the act to 
 provide for the assessment and collection ©f taxes have been 
 complied with; and how far it is necessary for the defendant 
 to show compliance, are questions depending upon the statute, 
 (^ee Laws of 1827, page 377,) and to be adjudicated in an ac^ 
 tion of ejectment. 
 
 Where a cause depends simply on the solution of a legal 
 question, the proper /orwrn for the determination of that ques- 
 tion, is a court of law; nor will this court interfere in a mat-
 
 CASES IN CHANCERY. 5 
 
 ter where relief can be had either by qito waiTanio or manda- i'r*i*'ifeuit- 
 mus. [Jittomey General vs. Utica Ins. Co., 2 J. C. R., 376; 20 i{„„.i.,„j 
 Ves. 199.) Dou. 
 
 W. WooDBP.iDGE, contra. 
 
 The demurrer concedes all the facts stated, consequently 
 that the proprietor was a resident proprietor, and that the pro- 
 perty was assessed as the property of a non-resident, as well 
 as the irrecularitv charcred. 
 
 The mode of collecting a tax from a non-resident is varient 
 from that prescribed for a resident. In the latter case the col- 
 lector must proceed by distress upon the personal property; 
 in the former case the tax can only be enforced by sale of the 
 land. 
 
 It is legally impossible that the land of a resident proprietor 
 should be sold and thus lost, if there were personal property 
 upon which distress might be made; and the sworn return of 
 the collector is the only evidence there could be that there was 
 no personal property. Thus bringing this case almost within 
 the very words of the case of Cox vs. Grant, 1 Yates, 165, and 
 also of Stead vs. Course, 4 Cranch, 413, 414. 
 
 In order to give effect to a collector's deed, every minute 
 particular of the statute must have been shown to have been 
 complied with. (1 Yaies, 300; Chip. R. 81; 4 Munf., 434.) 
 
 A collector has no p-eneral authority to sell lands at his dis- 
 cretion; but a special naked power to sell in certain specified 
 events; and the pre-requisites must precede the deed. The va- 
 lidity of the deed then finally depends upon matter in pais, and 
 this matter 77iust be shown. {Williains vs. Pay ton, 4 Wheat. ^ 
 79, 80.) 
 
 If the lots are not assessed in the name of the true owner, 
 for example, the sale is void. (8 Wheat., 083, 684; 1 Munf., 
 423.) The lots must be definitely and properly described. 
 (4 Peters, 362, 363, 364;) or the sale is void. {Vide 3 Ohio 
 Rep., 233, 234.) In the case of Thompson vs. Gardner, 10 
 John. R., 405, the court say: "It would be an alartning doc- 
 trine to say that the collector might sue immediately every 
 person upon his assessment roll." It would be far more alarm-
 
 6 CASES IN CHANCERY. 
 
 i-irBtcireii:t. jpg jf \^q could scll all 0. man's farm without suit, at his discre- 
 
 uowi.in,! ^ion, and without a regular assessment, advertisement, &c. 
 
 Doty. The contrary is the law; even the excess oi Jive cents in the 
 
 whole amount of a tax list, vitiates the whole proceedings and 
 
 the collector is a trespasser. (2 Greenleaf Rep., 375.) "For 
 
 if the strict rule of the law be overleaped there is no limit." 
 
 The Virginia statute provides that if the tax on land re- 
 mains unpaid three years, the title thereof shall vest in the 
 state; by a separate provision the collector is required to dis- 
 train if there be personal property, and he is required to re- 
 turn to the county court a report, sworn to, of his proceed- 
 ings; yet a sale by the state is utterly void unless the officer 
 or purchaser prove fully all the proceedings; distress, adver- 
 tisement, assessment, description, ownership and sale; other- 
 wise, says Judge Tucker, it would be against the principle of 
 Magna Charta. (2 Hen. 8^ Munf., 328.) 
 
 Not only is a literal and exact compliance with the statu- 
 tory provisions requisite, but the statute itself receives a very 
 5^nc^ construction. (9 Cranch, 67; Parker \s. Rule, 8 Wheat., 
 682; 5 Ohio Rep., 369; 4 Munf., 431.) 
 
 The claim of the defendants being thus bad at law, the com- 
 plainant has a full right to come into chancery to have the in- 
 valid deed cancelled, and the doubts thrown upon his title re- 
 moved and that title quieted; things which a law court cannot 
 do. 
 
 This case is not distinguishable from that of Yancey vs. Hop- 
 kins, 1 Munf., 419, 426, 428. The assessment was in that case 
 found to be irregular, and a cancelling of the collector's deed, 
 and also a re-conveyance by release were decreed. Nor can 
 this case be distinguished from the case of the Corporation of 
 Washington [on appeal) vs. Pratt, 8 Wheat., 682. There had in 
 that case been an irregular assessment, and the city lots had 
 been actually sold for taxes. Pratt brought his bill against the 
 corporation, and averred the irregularity of the assessment and 
 proceedings, and prayed an injunction. The sale was declared 
 void, and the city of Washington perpetually enjoined against 
 issuing a deed to the purchaser.
 
 CASES IN CHANCERY. 7 
 
 This case is strikingly similar in its fealures to the case of ^''"'^''"'""• 
 Burnett vs. Cincinnati, 3 Ohio Rep., 86. In that case, likewise, 
 there was an irregular assessment, and the tax not being paid, 
 the collector was about proceeding to sell for the tax, when 
 the complainant obtained an injunction. The decree of the 
 court was a perpetual injunction against the threatened sale. 
 
 In all these three leading cases, the point of jurisdiction was 
 either made, debated and overruled, or else made and (as in 
 8 Wheat., 682) given up by counsel. (See also, 5 Ohio Rep., 
 679; 2 Paige, 436.) 
 
 The Chancellor. The first question that arises in this 
 case is, as to the jurisdiction of this court. 
 
 As a general rule, where the bill prays relief, to which the 
 complainant is entitled, and which cannot be had at law, it is 
 sufficient to give this court jurisdiction of the cause. 
 
 The bill in this case, after stating that the complainant had 
 paid the tax for which the lot was sold, and being in posses- 
 sion, was unable to divest Doty of his pretended title to the lot 
 by action of ejectment, or any other process at law whatever, 
 prays that the deed from French to Wilson may be delivered 
 up to be cancelled, as also the conveyance from Wilson to 
 Doty. It also prays that Wilson and Doty may be compelled 
 to assign their claim to the complainant, and for an injunction 
 to restrain them from incumbering the title to the lot, and to 
 restrain Williams from recording the deed from French to 
 Wilson. 
 
 Is it competent for this court to afibrd any part of the relief 
 prayed. Most surely it is. 
 
 The jurisdiction of this court, (exclusiveof any statutory pro- 
 vision upon the subject,) to set aside deeds and other legal in- 
 struments which are a cloud upon the title to real estate, and 
 to order them to be delivered up to be cancelled, is fully estab- 
 lished. Petit vs. Shepard, 5 Paige, 493; Hamilton vs. Cxim- 
 mings, \ J. C. R., 517; Apthorp vs. Covistock, 2 Paige, 482; 
 Grovei' vs. Hugell, 3 Russ. Ch. Reports, 432; IVard vs. Ward, 
 2 Hayw. R., 226; Leigh vs. Everharts Ex'rs, 4 Munro R., 380; 
 Hamkshaw vs. Parkins, 2 Swanst. R., 546, 1 Munf. R., 419;
 
 8 CASES IN CHANCERY. 
 
 F.rst Circuit BumeUvs. Corporation of Cincinnati, 3 Ohio R., 87; JMitford's 
 PL, 87; and there can be no question that there is sufficient 
 stated in the bill to bring the case within the jurisdiction of 
 this court. 
 
 But the act to prescribe the mode of proceeding in chancery 
 of 1833, [laws of Michigan^ 358, sec. 29,) provides " that any 
 person having the possession and legal title to land, nnay insti- 
 tute a suit against any other person or persons setting up a claim 
 tiiereto; and if the claimant shall be able to substantiate his 
 title to such land, the defendant shall be decreed to release to 
 the complainant all claim thereto, and to pay the costs," &c., 
 and the bill in this case is framed to come within the provi- 
 sions of this section. 
 
 The facts set forth in the bill are admitted by the demur- 
 rer. 
 
 The question then is, does the treasurer's deed to Wilson, 
 divest Rowland of his title; and is Rowland precluded by that 
 deed from showing that the tax had been paid for which the 
 lot was sold? 
 
 By the 13th section of the "act to provide for the assess- 
 ment and collection of township and county taxes," [Laws of 
 1827, page 370,) the tax is declared to be a lien on the land; 
 and if such tax is not paid within a certain time, the treasurer 
 is authorized to sell. The right to sell is, therefore, founded on 
 the fact of the non-payment of the tax. If the tax be paid 
 before the sale, that lien is discharged, and the right to sell no 
 longer exists. 
 
 But it is said the treasurer's deed is conclusive upon this 
 point. 
 
 The 14th section of the act provides, ''that the treasurer 
 shall, at the expiration of the said two years, execute to the 
 purchaser, his heirs or assigns, a conveyance of the lands so 
 sold, which conveyance shall vest in the person or persons to 
 whom it shall be given an absolute estate in fee simple, sub- 
 ject to all the claims which the territory of Michigan shall 
 have thereon, and the said conveyance shall be conclusive cvi-
 
 CASES IN CHANCERY. 9 
 
 dence, that the sale was regular according to the provisions of F'fstcircuu. 
 
 this act. Rowland 
 
 The conveyance from the treasurer vests an "absolute es- Doty, 
 tate in fee simple" only where the proceedings throughout 
 have been regular. The right to sell being founded solely on 
 the non-payment of the tax, does not, and cannot exist when- 
 ever the tax has been paid. A sale thei-efore, when no tax is 
 in fact due, is unauthorized, and the treasurer's deed on such 
 unauthorized sale, conveys no estate or title whatever. 
 
 The return by the collector that the tax has not been paid, 
 is such evidence of non-payment 07i/y as to justify the trea- 
 surer in selling; and his conveyance on such sale is not "con- 
 clusive evidence" that all the pre-requisites have been com- 
 plied with, but is only conclusive evidence that the saJe by him 
 icas regular according to the provisions of the act. 
 
 And this was the construction given to the New York sta- 
 tute (which was substantially the same as ours) in the case of 
 Jackson vs. Montis. 18 Johns. Rep., 441. 
 
 Could the legislature have intended that a party who had 
 performed all his duties to the public, should be deprived of 
 his property in this way? Was it not intended to operate up- 
 on those who should not pay their taxes, and not upon those 
 who have, and thus have i)crformed all their obligations? The 
 obligation is reciprocal: if the citizen performs his duties to 
 the . government, the government should perform its duties to 
 him. Among the first of these is protection in his property; 
 it should not be taken from him by the government or its 
 agents without any fault or omission of duty on his part. 
 
 It is provided by the statute of Ohio, that "the deed made 
 by the county auditor, as hereinbefore specified, shall be recei- 
 ved in all courts as p?"zma facia evidence of a good and valid 
 title in the purchaser," &c. 
 
 In the case of the Lessees of Carlisle vs. Longivorth, 5 Ohio 
 R., 374, the supreme court say: "the legislature do not say 
 a deed made by the county auditor ' shall be received as prima 
 facia evidence of a good and valid title,' but the deed ^ as here- 
 inbefore specified,' in other wordS; the deed made by the auditor 
 Vol. I. 2
 
 10 CASES IN CHANCERY. 
 
 First dircuit. j^ pursuance of this act. This is the manifest intention. Un- 
 
 ""^^^^^ less it is made in pursuance of the act, it is made without au- 
 
 DoV thority and is void; but if made in pursuance of the act, it is 
 
 prima facia evidence of title." And in this case it was held 
 
 that before the auditor's deed could be received in evidence, it 
 
 must be shown that he had authority to make it. 
 
 In the case of Steads Ex'ts vs. Course, 4 Cranch R., 403, it 
 was decided that it was incumbent on the vendee io prove the 
 authority io sell. 
 
 Chief Justice Marshall, in delivering the opinion of the 
 court in that case, says: "It would be going too far to say 
 that a collector selling land with or without authority, could, 
 by his conveyance, transfer the title of the rightful proprie- 
 tor." 
 
 In Rules, Lessees vs. Parker, 1 Cooke R., 365, it was held 
 that the sale of lands for the payment of taxes being a sum- 
 mary and exti-aordinary proceeding, the party claiming title 
 under such proceeding, must show that all the requisites that 
 the law had prescribed to guard against frauds and imposition 
 have been complied with. 
 
 And in the case of Williams vs. Peyton's Lessees, 4 Wheat. 
 R., 77, the court say, that where there is a naked power not 
 coupled with an interest, every pre-requisite to the exercise of 
 that power should precede it; and that where lands are sold 
 for the non-payment of taxes, the marshal's deed is not even 
 prima facia evidence that the pre-requisites of the law have 
 been complied with; but the party claiming under it, must 
 show positively that they have been complied with. 
 
 These cases show w^hat the general rule is upon this sub- 
 ject. 
 
 It is not necessary in this case to decide whether it is in- 
 cumbent on the party claiming title under the treasurer's deed 
 to show affirmatively the regularity of the proceedings, and 
 that all the pre-requisites to the sale have been complied with. 
 
 The complainant alledges in his bill that the tax for which 
 the lot was sold, had been paid long before the sale, and it 
 would be a monstrous doctrine for this court to hold that he
 
 CASES IN CHANCERY. 11 
 
 is precluded by the treasurer's deed, and cannot go behind it ^''■"<^'"""- 
 to show that fact. n„„.i„„^ 
 
 The demurrer must be overruled, and the motion to dissolve do'V. 
 the injunction, denied.
 
 12 CASES IN CHANCERY. 
 
 John Wright vs. Jonathan L. King and others 
 
 First Circuit. If a party has a defence at law of which he is advised before the trial, and neglects to make it, 
 N^rvy-^fc^ or to apply to the court of chancery for a discovery, if necessary to his defence, in aid of the 
 Wright trial at law, he is precluded and cannot afterwards have relief in tins court. 
 
 rs. 
 King. A court of chancery will compel a discovery in aid of a defence at law, nor can there be a 
 
 doubt that it will stay proceedings at law, until an answer to the bill for discovery can be 
 
 obtained. 
 To raise a trust by implication, t'.icre must be an actual payment of money. 
 To take the case out of the statute of frauds, the terms and conditions of the trust must be in 
 
 writing under the hand of the party to be charged. 
 
 • 
 
 The bill in this case was filed 11th August, 1836, and stated 
 that in the year 1833, the complainant and defendant, King, 
 became jointly guarantors of and upon a certain promissory 
 note made by one John Collins to John H. Kinzie, for the sum 
 of $212, payable in 60 days. 
 
 That Daniel Goodwin and John Hale, (who were also de- 
 fendants,) were securities or endorsers, either separately or 
 with each other, or with King, upon other notes made by Col- 
 lins — that Collins became embarrassed and absconded from 
 the state without leaving any property or making any arrange- 
 ment for the payment of his debts. That soon after Collins 
 had absconded, John Hendree, (who was deceased at the time 
 of filing the bill,) informed complainant that he had previously 
 loaned said John Collins a sum of money, and for security for 
 the payment of the money so loaned, James Collins, who was 
 brother to said John Collins, had executed to him an absolute 
 deed of conveyance of two certain lots of land in the city of 
 Detroit, and proposed to complainant, if he would pay him the 
 money he had loaned Collins, with the interest and proper 
 charges, that he, Hendree, would deed said lots to complainant, 
 which complainant agreed to do. That complainant immedi- 
 ately applied to Henry K. Avery, (who was deceased at the 
 time of filing the bill,) cashier of the Farmers' and Mechanics' 
 bank of Michigan, for a loan to pay Hendree the amount of his 
 claim against Collins — that Avery agreed to loan complainant
 
 CASES IN CHANCERY. 13 
 
 the amount provided he would pay a debt of about S80, due f'f'**'^''":"'-- 
 the bank by said Collins, which complainant agreed to do on wrisia 
 the sale of the lots. Doty- 
 
 During the pendency of the negotiation and before com- 
 plainant had obtained the loan from the bank, he had a con- 
 versation with Goodwin respecting the affairs of Collins and 
 the liabilities of Goodwin, Hale, King and complainant on his 
 account, and in such conversation, complainant disclosed to 
 Goodwin the arrangement he had made for his own indemnity, 
 and stated that if he, Goodwin, and others interested, would 
 pay to Hendree the amount of his claim and would satisfy the 
 claim of the Bank of 880, and would also pay Jerry Dean 
 850 due him by said John Collins, and discharge complainant 
 from all liabilities on said John Collins' account, and on the 
 sale of the lots, after discharging the debts of said Collins for 
 which Goodwin, Hale and King were responsible, pay over 
 the residue of the proceeds of said lots to the wife of said 
 Collins, that complainant would relinquish the contract made 
 by him with Hendree, and permit the same to enure to the be- 
 nefit of said Goodwin, Hale and King. 
 
 Shortly after this conversation, Goodwin informed com- 
 plainant that he had seen Hale and King, and that they had 
 agreed to accept the proposition of complainant, and the con- 
 veyance of the said lots was to Ii*^ made to Goodwin, Hale 
 and King. That on request of complainant a deed of con- 
 veyance of said lots was executed and delivered by Hendree 
 to Goodwin, Hale and King. That the complainant, relying 
 on the good faith of Goodwin, Hale and King, did not insist 
 on the said understanding and agreement being reduced to 
 writing, or on security on their part for its fulfdlment. 
 
 That afterwards, Goodwin and Hale sold or disposed of their 
 interest in the said lots to King, and King sold the same, or a 
 part thereof, for about $3,000, which sum, the bill charged, was 
 amply sufficient not only to pay Hendree's claim, the $80 due 
 the bank, the $50 to Dean, and the note guaranteed by King 
 and complainant to Kinzie, but also to pay and satisfy all the 
 demands against the said John Collins for which said Good-
 
 14 CASES IN CHANCERY. 
 
 First Circuit, ^j^, Hafe and King were responsible, and leave a surplus for 
 Wright the wife of said Collins. The bill further stated that corn- 
 King, plainant and King were afterwards prosecuted in the circuit 
 court of Wayne county, by said Kinzie, for the balance due 
 on the note made to hitn by Collins and guaranteed by King 
 and complainant, and recovered judgment, and issued execu- 
 tion thereon, which execution was paid by King. That after- 
 wards, in 1835, King sued complainant in the circuit court of 
 Wayne county, to recover one-half of the amount he had paid 
 on the execution in favor of Kinzie, and obtained judgment 
 against complainant for $147 47 damages, and $15 50 costs, 
 and that execution had been issued thereon, and was about to 
 be levied on the property of complainant. 
 
 The bill prayed for an injunction to restrain King from pro- 
 ceeding to collect any execution issued on said judgment, and 
 for a discovery, &c. 
 
 Upon this state of facts, an injunction was granted according 
 to the prayer of bill, by one of the justices of the supreme' 
 court, to stand until the further order of the court. 
 
 A motion was now made by King to dissolve the injunction 
 and dismiss the bill, for want of equity. 
 
 A. D. Frazer, in support of the motion. 
 
 The facts alledged in the bill constitute a good defence to the 
 action at law; and complainant shows he might have estab- 
 lished the facts before a jury, but did not do so. 
 
 After a verdict or trial at law, it is too late to come to this 
 court for discovery or relief. This court will not afford relief 
 to a party on the ground that he has lost his remedy at law. 
 He should have applied for a discovery before trial. Le Guen 
 vs. Gouverneur and Kemhle, 1 John. Cas., 492, 502; Duncan 
 vs. Lyon, 3 /. C. R., 351; Lansing ys. Eddy, 1 J. C. R,, 51; 
 Smith vs. Lowiy, Id., 320; Bai'ker vs. Elkins, Id., 465; Penny 
 vs. Martin, 4 J. C. R., 576; 5 Peters' R., 503. 
 
 The statute of frauds is a perfect bar to the present bill. 
 
 To raise a trust by implication or operation of law, an actual 
 payment, or actual loan of money, must be shown. Steere vs. 
 Steere, 5 /. C. R., 1. To take the case out of the statute of
 
 CASES IN CHANCERY. 15 
 
 frauds, its terms and conditions must be in writing and signed f'"" Circuit. 
 
 by the party to be ciiarged. 
 
 Wright 
 
 r». 
 
 C. W. Whipple, contra. ^'"^^ 
 
 The Chancellor. It is a well established principle in 
 equity, that if a party has a defence at law, of which he is ad- 
 vised before the trial, and neglects to make it, or to apply to 
 this court for a discovery, if necessary to his defence in aid of 
 the trial at law, he is precluded and cannot afterwards have 
 relief in this court. (1.) 
 
 Lord Hai'dioick says, it must appear that the defendant was 
 ignorant at the time of the trial, of the fact which renders the 
 verdict at law contrary to equity; and even then, chancery 
 will not relieve where the defendant submits to try it at law 
 first, where he might, by a bill of discovery, have come at the 
 facts by the plaintiff's answer before trial at law. [See 1 John. 
 Ch. R., 50.) 
 
 In 1 Schoales and Lef rays' R., 201, Lord Redesdale says: "I 
 do not know that equity ever does interfere to grant a trial of 
 a matter which has already been discussed at law;" and at the 
 close of the opinion, he says: "I think it unconscientious and 
 vexatious to bring into a court of equity, a discussion which 
 might have been had at law." 
 
 In the court of errors in New York, in the year 1800, (1 John. 
 Ch., 436,) it was decideed in a case involving a large amount, 
 that where a party in a suit at law, has a knowledge of fraud 
 or other matter of defence, and neglects to make his defence 
 at law, a court of chancery will not interfere. 
 
 In the case of McFickar vs. Wolcutt, 4 J. R., 510, in 1808, 
 Van Ness, Spencer and Kent on the bench, it was decided 
 that a court of chancery will aid a defendant in obtaining a 
 discovery before a trial, but not afterwards. 
 
 Van JVesa, in giving his opinion, says: "granting that such 
 answer would have furnished a complete defence, still as they 
 omitted to take the necessary steps to possess themselves of that 
 answer before the trial at law, which they might, and if they
 
 16 CASES IN CHANCERY. 
 
 First Circuit, deemed it important, ought to have pursued, they are now too 
 ""■^^XbT^ late." The other judges concurred in the same conclusion. 
 King. In 1 J. C. R., 51, chancellor Kent says: "the general rule 
 
 is that this court will not relieve against a judgment at law, on 
 the ground of its being contrary to equity, unless the defen- 
 dant below was ignorant of the fact in question pending the 
 suit, or it could not have been received as a defence. If a 
 party will suffer judgment to pass against him by neglect, he 
 cannot have relief here for a matter which he might have 
 availed himself of at law." 
 
 In TImnpson vs. Berry, 3 J. C. R., 395, which was a cause 
 of exceeding hardship, relief was granted as to that part of the 
 demand to which no defence at law could have been made; 
 but the court refused to interfere as to the balance, because 
 the party had suffered judgment at law to pass against him, 
 without making his defence or applying for discovery before 
 
 the trial. 
 
 In the case of Smith vs. Loicry, 1 Johns. Ch. R., 320, where 
 an iniquitous judgment was obtained by subornation, the same 
 rule was rigorously adhered to. 
 
 As the same question is involved in several cases now pend- 
 ing in this court, I have purposely referred, briefly, to the 
 leading decisions made at different periods, both in England 
 and this country, and by men who are universally acknow- 
 ledged to have been the great luminaries in this branch of ju- 
 risprudence. 
 
 When we find such men as Lord Hard wick, Lord Redes- 
 dale, Van Ness and Kent, concurring in the same principles, 
 it would almost be presumption to question the correctness 
 and justice of those principles. 
 
 It remains only to apply these principles to the case under 
 consideration. It was urged at the hearing, that, from differ- 
 ence of parties, an insurmountable difficulty existed in obtain- 
 ing the aid of this court by a discovery prior to the trial at 
 law. I cannot perceive any such difficulty. King, the party 
 enjoined here, was either a party to the agreement to release 
 and indemnify the complainant from all his liabilitiee for Col-
 
 CASES IN CHANCERY. 17 
 
 lins, and among others the note to Kinzie, or he was not. If ^'^st circuit. 
 he was not a party to that agreement, he is not bound by it; wright 
 and it would be unjust and contrary to equity to enjoin and King, 
 inliibit him from the collection of Wright's proportion of their 
 joint liability. If King was a party to that contract, a disco- 
 very of that fact might have been obtained by a bill for that 
 purpose in this court, and it would have been a perfect de- 
 fence to the action at law by King against the com])lainant; 
 nor can there be a doubt that a court of chancery would have 
 stayed proceedings at law, until an answer to the bill for dis- 
 covery could have been obtained. But, from the case made 
 by the bill, it would seem that the complainant had a defence 
 at law, without resorting to a court of chancery, - According 
 to the statement in the bill, Goodwin knew all the facts, and 
 what the contract was; and I cannot perceive on what grounds 
 King could have objected to the introduction of Goodwin as a 
 witness, on the trial of the suit at law, between King and the 
 complainant. 
 
 It occurred to me at the hearing, that it was possible that 
 the bill could be sustained on the ground of the trust, as urged 
 in the argument; but, upon further examination, and on the 
 authority of the case in 5 Johns. Ch. ii., 1, I am satisfied that 
 it cannot. 
 
 To raise a trust by implication, there must be an actual pay- 
 ment of money; and to take the case out of the statute of 
 frauds, the terms and conditions of the trust must be in wri- 
 ting, under the hand of the party to be charged. There may 
 be other special circumstances where courts have declared a 
 trust, none of which exist here. 
 
 Upon the whole, I am of the opinion that the injunction 
 cannot be sustained, but must be dissolved. 
 
 Injunction dissolved. 
 
 (1) AVhere a party to a auit ;itla\v lias knowledge of a frauil or otlier matter of (iefcnoc in 
 time to avail himself of it, at the trial at law, and he neglects to do so, lie ciinnot aftenvards 
 obtain relief in a court of ei|uity against the judgment at law, on the ground of such fraud or 
 matter of defence which he might have set up at the trial; hut is forever concluded hy tUc 
 judgment. Lc Gucn vs. Oouccrncur, 1 John. Ca., 130. 
 
 The Court of Chancery must ho sati-sfied that a partv has justice in his cause, of which he 
 could not avail himself ,-it law, hefore it will interfere, jrby vs. MrCrca, I Dfsau R., 4'2-i. 
 Where there is a good defence at law, cquitv will not relieve, except tiic party was prevented 
 
 Vol. I. 3
 
 19 CASES IN CHANCERY. 
 
 FirstCircult. from making hi3 defence, by circumstaticeg not attributable to hia neglect or Inattention.— 
 
 Cunningham vs. Caldwell, Hardin R., 173; Cowell vs. Price, 1 Bihb R., 173; Reeves vs. Hogan, 
 
 ^-^^^'V^^^ Cuoke R., 175; Overton v?. Leary, Id., 36; Winthrop vs. Lane, 3 Desau. R., 323; Gatlin vs. 
 
 Wright Kirkpatrick, 1 Car. Law Rep., 584; Z-ce vs. Bales, "2 CA. C«., 95; Williams vs. Z-ee, 3 ^/i. R., 
 
 vs. 223. 
 
 *^''2' A bill for a discovery comes too late after a trial at law ; it should have been filed pending 
 
 the suit at law, so that the facts disclosed in the answer might have been used as evidence be- 
 fore the jury. Thurmond vs. Dunham, 3 Yerger R., 99.
 
 CASES IN CHANCERY. 10 
 
 Emily Peltier vs. Charles Peltier. 
 
 Where a defendant is in contempt, he cannot move to set nside procee.lings; but where there First Circuit, 
 is merely a failure on his part to comply witli the requisitions of an interlocutory .order, v^^^y-^^ 
 he may move to discharge the order for irregularity. Kraily Pel- 
 
 A feme covert connot file a Iiill ugalnst her husband without pro chein ami. vs. 
 
 Cliarles IcI- 
 
 ■\Vhere an injunction and ne-ereat were issued, May 31, 1830, and were returned served on Uer. 
 
 the 6th of June; and the subpoena was not issued until the 2dday of July following, it 
 
 was held to be irregular. 
 A court of chancery has no jurisdiction In a case-wtcre the bill is filed for alimony merely. 
 
 The bill, in this case, was filed May 31, 1836, in the supreme 
 court of the terrritory of Michigan, in chancery sitting, and 
 set forth that the complainant came into the territory of Mi- 
 chigan in the year 1834, and had resided in said territory ever 
 since. That in the month of January following, being then 
 of the age of twenty years, was married to the defendant, 
 who was then twenty-six years of age, or there abouts. 
 
 Soon after the marriage, and within one month, the defen- 
 dant evinced angry feelings towards her, and abused and ill 
 treated her, and frequently resorted to acts of violence upon 
 her person. That in the month of November, 1836, complain- 
 ant was confined and delivered of a male child, and when the 
 child was not more than three wrecks old, the defendant began 
 to beat it and treat it with great barbarity; at one time pour- 
 ing water over its face and continuing it until the infant's cries 
 were hushed by strangulation. That this conduct was fre- 
 quently repeated; and particularly in the month of April, 1836, 
 he had treated the child with great cruelty; and had beat with 
 great violence and inhumanly treated the complainant, and 
 used the most violent threats towards her, and soon after aban- 
 doned her, and went from Port Huron, in the county of St. 
 Clair, (where he then resided,) to the city of Detroit, and had 
 not since returned to her. 
 
 The bill further set forth, that by reason of the shortness of 
 her residence in the territory, she was unable to avail herself
 
 20 CASES IN CHANCERY. 
 
 Firstcircuit. ^f t^g statutory provision enabling persons resident three years 
 Peltier ^" ^^^ territory, to procure divorces for the cause of cruel 
 peuier. treatment, and that complainant had no means of support for 
 herself and child, (who was then aged six months,) nor for 
 their clothing, or to pay counsel fees, and that the defendant 
 had adequate means for that purpose. That defendant had 
 been applied to on behalf of complainant, to make some pro- 
 vision or allowance for the purposes aforesaid, and also for the 
 education of the child, which he had refused to do. 
 
 The bill also set forth, that defendant had declared his inten- 
 tion to leave this country and go to Europe to reside, as soon 
 ns he could raise sufficient money to enable him to do so; and 
 that he was then actually arranging his affairs for that purpose, 
 and had threatened to take from her the child and carry it 
 away with him. 
 
 The bill prayed that defendant be restrained by injunction 
 from molesting the retreat and invading the retirement and 
 privacy of complainant, or in any way intermeddling with her, 
 and that defendant might be restrained from taking away from 
 complainant, the custody and care of the child, or interfering 
 with her management of the same, and that she might have 
 the sole and absolute custody, care and management of the 
 child; and that defendant be decreed to maintain and support 
 complainant and the child, and to pay such allowance weekly, 
 as should be found suitable and adequate for the maintenance 
 and clothing of complainant, and also for the clothing, mainte- 
 nance and education of the child, and that the regular pay- 
 ment thereof be secured; and for such reasonable sum to ena- 
 ble complainant to prosecute her suit as to the court should 
 seem proper. 
 
 It also prayed for a writ of ne-exeat, to restrain defendant 
 from departing the territory, and for a subpoena, in the usual 
 
 form. 
 
 A writ of ne-exeat, directing security to be given in the 
 sum of $5,000, and also the writ of injunction prayed, were 
 allowed by the Hon. George Morell, one of the justices of the 
 supreme court.
 
 CASES IN CHANCERY. 21 
 
 The injunction and ne-exeat were served on the defendant f"'"<<''i'«""- 
 
 June 6, 183G. PelUer 
 
 At the same term, June 20, Woodbridge and Backus filed pewer. 
 the following motion: 
 
 Woodbridge and Backus move that the injunction in the 
 premises issued, be dissolved, and that said writ be set aside; 
 and for reasons, show to the court here, the following, to wit: 
 
 1. For that the same is irregular. 
 
 2. For that the same is not sanctioned by any equity in the 
 bill of complaint contained. 
 
 3. For that no bill of complaint is regularly filed nor exhibi- 
 ted in the premises. 
 
 4. For that the case made thereby is disproved by affidavits. 
 
 5. For that the subject matter of said writ, is not an appro- 
 priate nor legal subject for a writ of injunction. 
 
 6. For that the same issued without subpoena and improvi- 
 dently. 
 
 They also move that the ne-exeat in said cause issued, be dis- 
 charged, and the same writ be set aside. 
 
 1. For that the same issued improvidently and irregularly. 
 
 2. For that no definite sum of money is therein, nor in said 
 bill, shown to be due, nor at hazard, either at law or in equity. 
 
 3. For that this honorable court has not jurisdiction of ma- 
 trimonial causes, except for the purpose of granting divorce; 
 and said bill neither presenting a case nor containing a prayer 
 for such divorce, though the same purports to be a matrimo- 
 nial cause. The subject matter of said writ and the aid sought 
 to be obtained thereby, are illegal and incompetent. 
 
 4. For that said writ is not accompanied by a subpoena to 
 answer. 
 
 5. For that no bill of complaint, by a competent party, is 
 regularly filed in the premises. 
 
 6. For that the case presented therein is disproved by affi- 
 davit. 
 
 They also move that the bill of complaint in the premises, 
 exhibited and filed, be dismissed:
 
 23 CASES IN CHANCERY. 
 
 Firstcircuit. I FoF that the said bill is exhibited and filed by Emily Pel- 
 ""■^^^^^ tier alone; whereas it appears, by the showing thereof, that 
 Peiuer. said Emily is a feme covert, and in no wise competent in the 
 law, to file said bill, except in the name of her pro chein ami. 
 
 2. For that this honorable court has no jurisdiction of the 
 subject matter of said bill, and that no subpoena ad responden- 
 dum has been served thereupon. 
 
 At the same term, June 29, the supreme court granted an 
 order, that the defendant forthwith pay into the hands of the 
 register of the court, for the use of the complainant, the sum 
 of $40, in order to enable her to defray the expenses in the 
 prosecution of this suit; and also that defendant pay every 
 week, from that day, into the hands of the register of the 
 court, for the use, support and maintenance of complainant, 
 the sum of #4, until the further order of the court. 
 
 A certified copy of said order, together with a subpoena to 
 answer the bill of complainant, were served on defendant, July 
 27, 1836. 
 
 On the organization of the state government, this cause 
 among others, pending on the chancery side of the supreme 
 court of the territory, was transferred to the court of chan- 
 cery, established under the state government, and was con- 
 tinued by consent of parties until the February term of the 
 court of chancery; when Woodbridge renewed the motion 
 to dissolve the injunction and set aside the writ; and that the 
 ne-exeat be discharged and the writ set aside; and that the 
 bill be dismissed for irregularity and want of jurisdiction; and 
 also moved that the order made June 29, 1836, be discharged, 
 vacated and rescinded, on the ground that the same was made 
 unadvisedly, improvidently and ex parte. 
 ' At the same term, A. D. Frazer, solicitor for complainant, 
 on filing the affidavit of John Winder, (who was on the 29th 
 day of June, 1836, register of the supreme court of the ter- 
 ritory, and now register of the court of chancery,) that the 
 order made June 29, 1836, by the supreme court, had not 
 been complied with; and that no money had been paid into his 
 hands by defendant for the use of complainant, to defray the
 
 CASES IN CHANCERY. 23 
 
 expenses of this suit or for alimony, moved that defendant be ^'"t circuit, 
 committed for a contempt of court for not complying with the pcuier 
 
 order. PelUer. 
 
 Both motions came on to be heard at the same time. 
 
 The following brief, being the same that WooDBnioGE sub- 
 mitted when he appeared in the cause as amiciis curicB, to re- 
 sist the motion on which the order of June 29, 183G, was 
 granted, was used and submitted on the arguments of these 
 motions, by 
 
 W.M. WooDBRiDGE, soUcitor for defendant. 
 WooDBRiDGE, as umicus curice, moves to dissolve injunction, 
 discharge ne exeat, and dismiss the bill for irregularity and 
 want of jurisdiction, and resists the motion of complainant for 
 the same reasons; and he insists that no bill and no parties are 
 regularly here, and therefore it is not competent to make an 
 allowance. 
 
 First. It is not competent for a fc7tie covert to file a bill in 
 her own name. If the bill be against her husband, she must 
 sueby her pro chein ami. This is a rule so perfectly establish- 
 ed and so familiarly known, that no authority can be necessa- 
 ry to support it. If an application for a divorce can be sus- 
 tained in the name of a married woman, (without a p?'o chein 
 ami,) it is because of an express provision of the statute in 
 that regard. This is not an application for a divorce. {See 
 Woodys. Wood, 2 Paige K, 457; Milford, 153; Cooper, 28, 
 163; Clancy, on the rights of women, 358, 6; 2 Kent's Com., 
 137.) 
 
 Second. It is irregular to cause a7iy action upon a bill, even 
 to issue injunction, unless simultaneously there be a siibpasna 
 to answer; and can such an order pass without an appear- 
 ance? {See Parker vs. Williams, 4 Paige, 439; Attorney Ge- 
 neral \&. J^ichol, 16 Ves., 338; Eden, 35; Fellows vs. Fellows, 
 4 Johns. Ch. R., 25; Eden, 38, 232.) 
 
 Third. This Court has no jurisdiction of the subject matter 
 of the bill. The essential scope of the bill is to obtain a sup- 
 plicavit and alimony. Now, as to a supplicavit, a court of 
 chancery cannot exercise jurisdiction of it; at least, unless that
 
 24 CASES IN CHANCERY. 
 
 Firstcircuit. ifiatter arise incidentally in the course of the exercise of an- 
 '"■'^^J^j^ other and a principal object of the suit. {Codd vs. Codd, 2 J. 
 
 Peltier. C /?., 141.) 
 
 For the rest, the judicial officers of the law in the territo- 
 ry are abundantly competent, in the ordinary administration 
 of the law, to furnish all the relief and protection necessary. 
 (2 Har. Cha., 168; Codd vs. Codd, 2 J. C. R., 141; Head vs. 
 Head, 3 ^tk., .550.) 
 
 Of alimony this Court can have no jurisdiction, except so 
 far as incident to the power of granting a divorce. {Lewis vs. 
 Lewis, 3 Johns. Ch, R., 519; Mix vs. Mix, 1 Johns. Ch. R., 
 108; 1 Fond., 96; Head vs. Head, 3 Jith., 547; 2 Chit. Pra.. 
 434-5, 462-3; 1 Mad., 305-6-7— woie. ) 
 
 Or, unless it be applied for upon the footing of an agreement 
 of separation, and allowance of separate maintenance duly 
 entered into; and even then it would be exceedingly doubtful, 
 unless some third person had acquired an interest, or the agree- 
 ment had been entered into with some third person. [Bullock 
 vs. Menzies, 4 Ves., Jr., 799;) or where it is claimed to accrue 
 from a trust fund which chancery only can touch: and, as a ge- 
 neral rule, chancery has no jurisdiction in matrimonial cases. 
 (Legard \s. Johnson, 3 Ves., Jr., 351.) 
 
 Chancery has never established a separation, except in pur- 
 suance of a previous agreement, and with great reluctance 
 even then. (1 Jl/ac?,, 305-6-7.) Nor, of course, does it grant 
 alimony, as a principal object of relief. 
 
 Fourth. But if alimony were regularly claimed, as a mea- 
 sure of relief, purely incidental to some other principal pray- 
 er, still the party petitioning lor it, should apply in due form. 
 How can the court regulate the amount? Suppose the de- 
 fendant were insolvent ? Suppose worth $50,000 per annum, 
 would the rate of allowance be the same? If the appli- 
 cation were secundum artein, the party w^ould file a peti- 
 tion, give notice of it, and file also an "allegation of faculties." 
 This allegation of faculties, being answered by respondent un- 
 der oath, would exhibit a true state of his funds and capacity 
 to pay. Nor will counsel fees be allowed by the court where
 
 CASES IN CHANCERY. 25 
 
 there is jurisdiction, except ex necessitate. (3 Johns. Cha., I'u^st circuit. 
 
 519.) rellicr 
 
 Fifth, The bill is not, in contemplation of law, sworn to at vcilicr. 
 all. A wife cannot be allowed her oath against her husband, 
 in any case, as a general rule, except where she swears arti- 
 cles of the peace against him, or where personal violence is 
 committed upon her; and, therefore, neither injunction, ne-exe- 
 at, nor supplicavit, are regular. (2 War. Cha., IGl: Sedg- 
 wick vs. Watkins, 1 Fes., Jr., 49.) 
 
 But it is anticipated that the court will consider the motion 
 to dissolve the injunction, discharge the ne-exeat, and dismiss 
 the bill at the same time, and for the reasons on file; as the 
 consideration of the whole matter involved in this motion; al- 
 most, is necessarily involved in the motion submitted by com- 
 plainant. Writs of ne-exeat, effecting the rights of personal 
 liberty, are never granted, except reluctantly. ( Woodward vs. 
 SchatxeU, 3 J. C. R., 412.) Never, except a specijic sum ap- 
 pear manifestly due, and in imminent danger of loss unless it 
 be allowed, and which courts of law are incompetent to save. 
 (2 War. Cha., 161; 1 Ves., Jr., 49, 94; 2 Atk., 210.) Here 
 no sum has been decreed, or sworn to. If there rest any lia- 
 bility on the part of the husband to pay for the support of the 
 wife, it is a liability at law; let him be sued for it. 
 
 The injunction is equally untenable. The bill is irregularly 
 filed. It is as if there were no bill; for, (unless, perhaps, for di- 
 vorce, and this is not,) the wife cannot file her bill without her 
 pro chein ami, and the injunction must be dissolved, for there is 
 no subpoena to answer. The subject matter and scope of the 
 injunction is without precedent and illegal. The complainant 
 meant to pray for and obtain a supplicavit, not an injunction. 
 But it is hy statute, that in England the chancellor exercises 
 this power; and, I apprehend, never, even there, except in a 
 matter incidental to the main object of the suit. Such an in- 
 junction interferes with the marital rights and duties of the 
 husband in a wav not to be tolerated. But if life were in dan- 
 ger, a justice of the peace would bind the party to his good 
 Vol. I. 4
 
 Peltier 
 
 vs. 
 Peltier. 
 
 2flr CASES IN CHANCERY. 
 
 Firstcircuit. behavior, leaving the wife, where the law leaves her, in the 
 custody and under the protection of the husband. 
 
 The bill should be dismissed, because the court has no juris- 
 diction of its subject matter. 
 
 Alexander D. Frazer for complainant. 
 
 The complainant contends that the general rule is, that the 
 party must clear his contempt before he can be heard. ( Vowles 
 vs. Youngs, 9 Vesey, 173; Hewitt vs. McCurtney, 13 Id., 560; 
 w2non., 15 Id., 174.) 
 
 On a question whether the defendant could, before his con- 
 tempt were cleared, though he offered to pay all the plaintiff's 
 demand, ordered that he should bring before the master, prin- 
 cipal, interest and cost, and then be at liberty to move to dis- 
 charge sequestration. [Lord Wenman vs. Osbaldiston, 2 Brown 
 P. C, 142.) 
 
 Though an injunction be irregularly obtained, it must be 
 obeyed or the party is in contempt. ( Woodward vs. King, 2 
 Ch. Ca., 203, 127; Partington vs. Booth, 3 Mer., 148.) 
 
 Alimony has been decreed to a wife without a divorce, 
 where she was compelled to leave the husband from ill usage, 
 although she had not been beat or turned away. (1 Equity 
 Digest by Barbour and Harrington, 266; Rhume vs. Rhume, 
 1 McCord, CA.,205; Thornberry vs. Thornberry, 2 J. J. Mar- 
 shall, 324; Denton vs. Denton, 1 Johnson. C. R., 364; Hewitt 
 vs. Hewitt, Blands. Ch. Rep., 101; Jelineau vs. Jelineau, 2 
 Desaus, 45;) and if there be no precedent, the court will make 
 one. {Idem, 50; Devall vs. Devall, 4 Desaus, 79; Anon. Id. 94; 
 Taylor vs. Taylor, Id., 167; Id., 183.) 
 
 Court of chancery has jurisdiction in all cases of alimony, 
 and defendant will be committed until he comply with the de- 
 cree. {Purcell vs. Purcell, 4 Hen. and Munf., 507; Id. 515; 
 Id. 517; Id., 520; Anon. 1 Hayne, 347.) 
 
 Courts of chancery, in this country, have authority to de- 
 cree alimony independent of any legislative enactment; tem- 
 porary alimony, and money to carry on the suit, is a matter 
 of course. [Fishli vs. Fishli, 2 Lift. 337; Butkr vs. Butler,
 
 CASES IN CHANCERY. 27 
 
 4 Id., 202; Wright vs. ^n^/i^ 1 Edw., 62; S'mz7/i vs. Smith, First circuit. 
 Id. 255; Stanford vs. Stanford, Id., 317.) Pducr 
 
 An injunction was appropriate to prevent intercourse or Peiu'er, 
 molestation on the part of the husband. {Warier vs. Yorke, 19 
 Vesey, 454.) 
 
 It is competent for a feme covert to institute suit without a 
 pro chein ami ; and the affidavit of the wife may be received 
 against the husband and will authorize the granting of an in- 
 junction and ne-ezeat. {Kirhy vs. Kirhij, 1 Paige, 261; Pyle 
 vs. Cravejis, 4 Litt., 18.) 
 
 WooDBRiDGE in roplv. 
 
 It is now objected that the defendant is excluded from this 
 motion because counsel say, " he is in contempt for not obey- 
 ing the order now sought to be set aside." 
 
 It is admitted that when a contempt is "fixed" upon one, he 
 cannot, in general, move until the contempt " is purged." 
 
 But even this rule applies rather to appeals to the " discre- 
 tion" — that is, to the /auor of the court, and does not and can- 
 not preclude the enforcement of mere right. {Johnson vs. Pin- 
 ney, 1 Paige, 646; 7 Paine' s Rep., 58; 9 Whea., 868.) The nul- 
 ity of an order, &c., may be always shown. 
 
 But in this case, there is no contempt fixed. At the first 
 practicable moment, the motion is made to set aside the order 
 for irregularity, &c., and before any movement of complainant. 
 But to this moment, nothing under that order, is done by 
 complainant to bring us in contempt. An order or a decree, 
 (and they both stand upon the sa7}ie footing) to pay money, is 
 to be enforced by " execution," and in that way only. (1 Har. 
 Cha., 442 to 445; 2 Har. Cha. 141-2; J^ew Pra. 194-5 ; " or- 
 ders on decrees,'' Hind. Cha.' 429; JVezo Pra. 70-1.) And es- 
 pecially where the order is to pay money, the course is by exe- 
 cution. (2 Mad., new ed., 402-4; 8 Ves. 381; 2 Mad., olded., 
 305.) 
 
 And until complainant move, by execution upon the order 
 against us, it cannot be enforced. In New York there is an 
 express statutory provision for the enforcement of orders, &c., 
 by serving copies, but we have no such statutory provision.
 
 28 CASES IN CHANCERY. 
 
 Firstcircuit. Another matter is worthy of note; that is, that Winder^ s 
 ^"^^X^ affidavit was not filed until this term. And if our situation in 
 peuier. this regard brings us within the rule alluded to, then any sug- 
 gestion of contempt, without affidavit, will, at any time be 
 found to be a sufficient apology for suppressing all claim of 
 legal and constitutional right. But if the party were techni- 
 - cally in contempt, still it is competent to set aside the order 
 which is rendered against him for irregularity, even; much 
 more for nullity. (3 Bar. and Harr. Eg. Dig., 257; Green vs. 
 Green, 2 Sim., 394; 2 Con. Cha., 540; 4 Con. Cha., 528; Jen- 
 Uns vs. Wild, 2 Paige, 394.) 
 
 And this doctrine is practically supported by the numerous 
 New York cases. For in all them, perhaps — in most of them 
 certainly, laborious investigations are gone into to show the 
 regularity of the proceedings, or the contrary; and all clearly 
 supporting the proposition that where the irregularity is so 
 glaring as to amount to nullity, this fact may be shown. {Hig- 
 hie vs. Edgarton, 9 Paige, 253; Sanford vs. Brown, 4 Paige, R., 
 360; Sullivan vs. Judah, Id. 444; Osgood vs. Johnson, 3 Paige, 
 ^.,195; People vs. Spalding, 2 Paige, 329.) And these, appa- 
 rently, contain the most unfavorable aspect, as against us, which 
 the doctrine will bear. And the mere failure to comply with 
 an interlocutory order, does not of itself place the party in con- 
 tempt, nor preclude him from showing its irregularity. (Hill 
 vs. Bissell, Mose. R., 259; 1 How. Pra. 369.) 
 
 The Chancellor. — These are cross motions, and must ne- 
 cessarily both be considered at the same time. 
 
 When a defendant is in contempt, he cannot move to set 
 aside proceedings; but when there is merely a failure on his 
 part to comply with the requisitions of an interlocutory order, 
 he may move to discharge the order for irregularity. {Hill 
 vs. Bissell, Mose. R., 259.) 
 
 Here no contempt is fixed, and the defendant moves to set 
 aside the order at the earliest opportunity. Orders of this 
 kind are usually enforced by execution, and a mere failure to 
 comply with the requisitions of such an order, is not such a
 
 CASES IN CHANCERY. 29 
 
 contempt as will preclude the party from moving 1o discharge F'"tci 
 the order and set aside the proceedings for irregularity. pemer 
 
 The proceedings in this case seem to have been irregular PeUicr. 
 throughout. The bill vras filed by ^ feme covert without j)^o 
 chein ami, and w^as, therefore, improperly before the court. 
 ( Wood vs. Wood, 2 Paige R., 454; sa?ne case on appeal, 8 Wend., 
 357; Mifford, 153; Cooper, 1G3.) 
 
 The injunction and ne-exeat were, issued May 31, 1836, re- 
 turnable on the first Monday of June following, and were ser- 
 ved June 6, 1836. The subpoena was not issued until the se- 
 cond day of July, 1836. This was clearly irregular. {Par- 
 ker vs. Williams, 4 Paige R., 439; Attorney General vs. Jfich- 
 ol, 16 Ves., 338.) 
 
 The next question that arises, is, as to the jurisdiction of the 
 court. 
 
 The bill in this case is filed, not for a divorce, but for alimony 
 merely. 
 
 It appears from the authorities cited by the counsel for the 
 complainant, that the courts of South Carolina have entertain- 
 ed bills of this kind; but they have usually been to carry into 
 effect some marriage contract, or where a trust property was 
 involved. I can find no other case where the jurisdiction has 
 been sustained when the question has been raised. In the case 
 of Hewitt vs. Hewitt, 1 Bland R., 101, the jurisdiction was not 
 questioned, the facts were admitted, and the whole matter was 
 submitted to the court. The cases referred to in the note to 
 that case, are too indefinite to entitle them to any weight as 
 authority. 
 
 The whole current of authorities goes to show that courts 
 of chancery have never entertained jurisdiction in cases of this 
 kind, except in aid of some other court, or to carry into efl'ect 
 a marriage contract, or in the execution of a trust. [Peame 
 vs. Lisle, Jlmbler R., 75; Perry vs. Perry, 2 Paige, 501.) 
 
 In England, when the court of chancery succeeded to the 
 jurisdiction of the spiritual courts during the usurpation, it en- 
 tertained suits of this kind, but not since the restoration. {See 
 
 rcuit.
 
 m CASES IN CHANCERY. 
 
 Firstcircuit. jj^^^ ^s. Head, 3 Jltk., 551; Wathjns vs. Wathyns, 2 Atk, 98; 
 
 Peltier i^0w6. S^-., 98, TlOte 71.) 
 
 Peltier. In the case of Codd vs. Codd, 2 J. C. R., 141, the bill pray- 
 ed for a writ of supplicavit to protect the person of the peti- 
 tioner, and her property and children from insult and injury, 
 pending the suit, and chancellor Kent refused the writ, saying, 
 <' Why should not the party apply to a justice of the peace to 
 bind the other to good behavior?" 
 
 The cases cited in Besaussure's equity reports of South Car- 
 olina, seem to be a departure from principle, and cannot, there- 
 fore, be regarded as authority in this case. If it is intended 
 that courts of chancery should take jurisdiction of this class of 
 cases, that jurisdiction must be given by law. I am satisfied 
 that, exclusive of any statutory provision upon the subject, 
 this court has no jurisdiction to entertain proceedings of this 
 kind. 
 
 The orders must be discharged and the bill dismissed.
 
 CASES IN CHANCERY. gj- 
 
 Jonathan Burtch vs. Hannah Hogge and others. 
 
 Where the agent or attorney of the complainant examined witnesses and wrote their deposi- Fir.t Circuit 
 
 Uons, and the commissioner before whom tliey were taken, was absent from the room sevc- n^-^,."^,, 
 ral times during the examination, and the defendant did not appear and cross examine tlie ij„rtcli 
 witnesses, the proceedings were held to be irregular, and the depositions were suppressed. rJ." ' 
 
 It seems that courts of equity will take notice of irregula^-ities and unfairness in taking deposi- "°^*' 
 
 lions, at any stage of the proceedings in the cause, before hearing. 
 
 Where under a parole agreement to convey land, the purchase money had been paid, posses- 
 sion taken, and valuable improvements made, it was held to be sufficient to take the case 
 out of the statute of frauds. 
 
 Inadequacy of price, where it is so gross and palpable as of itself to appear evidence of actual 
 fraud, may b«i sufficient to induce this court to stay the exercise of its discretionary power 
 to enforce a specific performance, and leave a party to his remedy at law ; but inadequacy of 
 price merely, without being such as to prove fraud conclusively, is not a good objection 
 against decreeing a specific performance. 
 
 The bill in this case was for a specific performance of a con- 
 tract for the sale of real estate. 
 
 The bill charged that Robert Hogge, the husband of said 
 Hannah, (who was now dead,) in the month of May, 1832, 
 was seized and possessed of an undivided interest of seven and 
 a half acres of land at the mouth of Black river, in the county 
 of St. Clair, being part of the north cast fractional quarter of 
 section ten, in township six north, of range seventeen east, 
 containing, in the whole, ninety-one acres. That May 25, 
 1832, Robert Hogge agreed to sell to Jonathan Burtch, the 
 complainant, seven acres of said land owned by him, for the 
 consideration of 8150. That in June and July following, in 
 various sums, and at different times, Burtch paid to said Ro- 
 bert, $129 of said consideration, for which said Hogge gave 
 his receipts and put complainant in possession of the premises. 
 That complainant had made improvements on the premises to 
 the amount of $1,500 and upwards, and had kept possession of 
 said premises ever since. That some time in the month of 
 May, aforesaid, complainant procured a deed to be made out 
 from Hogge to him, of the land; but before it was executed, 
 in August thereafter, Hogge was suddenly taken ill, and died 
 intestate, leaving the defendant, his widow, and heirs at law,
 
 32 CASES IN CHANCERY. 
 
 FiMt Circuit, to inherit the estate. That his wife administered on his es- 
 
 Burich ^^t^f ^"^ ^h^ balance of the purchase money was paid to her, 
 
 Hogge. and she acknowledged satisfaction and gave receipts therefor, 
 
 and said she felt desirous and willing to convey the legal title 
 
 to the lot, if authorized so to do. 
 
 The bill prayed that the defendant be compelled, specifically, 
 to carry said agreement into effect by executing a conveyance 
 of the premises to the complainant. 
 
 The answer of Hannah Hogge, (widow of Robert Hogge,) 
 admits that Rohei'i Hogge was seized of seven and a-lialf acres 
 of land as alledged in the bill. Neither admits nor denies there 
 was a contract made as alledged in the bill, but denies any 
 positive knowledge of its terms; admits that she knew of the 
 payment of money by complainant to Hogge, and that she re- 
 ceived money after the death of Hogge, on account of the 
 land, and gave receipts therefor. Denied that she ever agreed 
 to convey her right of dower, and also denied that there was 
 any contract in writing, and claimed the benefit of the statute 
 of frauds. 
 
 John Doran, in his answer, denied any personal knowledge 
 of the matters stated and charged in the bill, and alledged that 
 he had been appointed admistrator, de bonis non, of the estate 
 of Robert Hogge, and claimed the benefit of the statute of 
 frauds. The heirs, who were minors, answered merely pro 
 forma, and denied any personal knowledge of the matters sta- 
 ted and alledged in the bill. 
 
 The cojnjplainant replied generally to these several answers. 
 
 An order was obtained to take testimony, requiring ten days 
 previous notice to be given by the party taking testimony; the 
 notice was served by complainant on Woodbridge, solicitor for 
 defendants, at Detroit, on the seventh day of September, 
 1835, to take testimony at Palmer, St. Clair county, on the 
 16th, 17th and 18th days of the same month. 
 
 The testimony having been taken, returned and filed, 
 
 Woodbridge & Backus, on behalf of the minor heirs, move 
 to suppress the depositions taken on the 16th and 17th days of 
 September, for irregularity.
 
 CASES IN CHANCERY. 33 
 
 It appeared from the certificate of Horatio James, the spe- FirstCircuit. 
 cial commissioner appointed to take the testimony, that seve- "^-^^^^^-^ 
 
 1 • . 1 r 1 Burtch 
 
 ral witnesses appeared before him, at his oflice in St. Clair, on "• 
 
 Hogge. 
 
 the part of the complainant, and that Ira Porter, Esq., appear- 
 ed as counsel for the complainant, and put questions generally 
 to the witnesses, and took down, in his own handwriting, all 
 the answers given to such questions by the witnesses, and re- 
 duced to writing all the depositions taken; that neither the de- 
 fendants, their agent, or attorney, were present at the exami- 
 nation until all the witnesses had testified; that he had frequent 
 occasions to leave the room, and was not present all the time 
 during the examination; that he only administered the oaths 
 to the witnesses after their depositions were fully written by 
 Mr. Porter. 
 
 The affidavit of John Thorn stated that he was present at 
 the taking of the depositions in question, and that Ira Porter 
 put all the questions to the witnesses and wrote all the depo- 
 sitions; that Porter appeared to act as the attorney for Burtch, 
 the complainant, in taking the testimony. 
 
 Ira Porter states in his affidavit, that some time in the sum- 
 mer of 1835, Burtch, the complainant, informed him that de- 
 positions were to be taken at Palmer before Horatio James, a 
 special commissioner appointed for that purpose, to be used 
 upon the trial of a cause pending in chancery, wherein he was 
 complainant and Hannah Hogge and others were defendants; 
 that Burtch wished him to testify in the matter, and that he, 
 Porter, agreed to attend as a witness; that Burtch requested 
 him to see something to the enclosing and transmitting of the 
 testimony to Detroit, but did not employ him as counsel or at- 
 torney; that he was not at that time an attorney in this state 
 or elsewhere; that, at the solicitation of James, the commis- 
 sioner, he wrote his own deposition and those of several other 
 witnesses then in attendance; that John Doran, who appeared 
 to be interested in the matter, either as one of the parties or 
 as their agent, was present, and did not object to his writing 
 the depositions; that the depositions were written by him tru- 
 ly and faithfully, and were read to, and approved of by the 
 Vol. I. 5
 
 Bunch 
 
 vs. 
 Hogge. 
 
 34 CASES IN CHANCERY. 
 
 FirstGircuit. witnesses, and that he had no interest in the event of the 
 cause. 
 
 H. T. Backus, in support of the motion, cited — Hinds Ch., 
 804, 334, 301, 324; 2 Mad. Ch., 412; Js'ewl. Ch., 131; 2 Hoxd- 
 ard's Eq., 591; 2 Chan. Rep., 393; 15 Fessaw, 380; 1 Har. 
 Ch. 360. 
 
 A. D. Frazer, contra. Cited— 3 Brown, P. C, 620; 1 Pe- 
 ter's Rep., ^01; 5 John. Ch. Rep., 191; 2 /<i. 249. 
 
 The Chancellor. There can be no doubt that the conduct 
 of the commissioner in taking these depositions, was highly- 
 improper. 
 
 Thorn in his affidavit states that Porter appeared as attorney, 
 asked all the questions and wrote the depositions, and it is ap- 
 parent that he appeared there on different days, and when he 
 was not called there as a witness. 
 
 Porter himself says in his affidavit, he was requested by 
 Burtch to see to the inclosing and transmitting the testimony 
 to Detroit; he says he was not employed as counsel or attor- 
 ney, and adds that he was not admitted as an attorney in this 
 state or elsewhere at the time; but he does not deny that he 
 was acting as the agent of Burtch, and he states that he wrote 
 his own deposition and several others. 
 
 The certificate of James, the commissioner, although, per- 
 haps, irregular, yet if looked into, would not lead the court to 
 place much confidence in the faithful execution of his duty as 
 a commissioner. He says in his certificate, that he was ab- 
 sent from the room a part of the time during the examination 
 of the witnesses and the writing of the depositions. The pro- 
 ceedings in taking these depositions were clearly irregular. 
 {See 2 Chan. Rep., 399; Hinds, C/i.,344, 348; 15 Ves., 380.) 
 But it is urged that the irregularities in taking the deposi- 
 tions are waived by the defendants having taken further steps 
 in the cause, and the case of Skinner vs. Daton et. at, 5 Johns. 
 Ch. Rep., 191, is relied on asauthority to support this position. 
 That was a case where the notice to take testimony was
 
 CASES IN CHANCERY. 35 
 
 claimed to be insufficient; no want of fairness in the execu- ^''■^' *^''''^""- 
 tion of tlie commission was complained of, and three terms uurich 
 had been suffered to elapse after notice to take testimony had Hogge. 
 been given. An offer to cure the defect of notice had been 
 made and declined, and the cross examination of the witness 
 had been expressly waived. This was a very different case 
 from the one now under consideration. 
 
 The case cited in 3 Brown's Rep., 620, was a case on appeal, 
 and the depositions had been used at the hearing in the court 
 below. In the case of 1 Peter's Rep., 307, the deposition had 
 been read without objection at the hearing; but the judge in 
 that case, says: "if the objection had been made to the ad- 
 mission of the deposition at the hearing, it ought not to have 
 prevailed, because the opposite party appeared and cross-exa- 
 mined the witness. In this case it was a question of regu- 
 larity merely, and there was no pretence of impropriety or 
 unfairness in taking the deposition. 
 
 Courts have always looked with jealousy upon proceedings 
 of this kind, and guarded, with great care, the rights of the 
 parties against imposition and fraud; and under our practice, 
 where depositions are genei'ally taken without interrogatories 
 being filed, it seems almost indispensable to the ends of justice, 
 that this court should scrutenize well the proceedings in taking 
 depositions before it permits them to be read as evidence. I 
 should feel great reluctance in deciding this case upon testi- 
 mony taken as losely as this seems to have been. 
 
 In 3 Atk. Rep., 812, although the affidavits had been read, 
 the court, for the reason that the depositions had been unfairly 
 taken and for other reasons there appearing, dismissed the pro- 
 ceeding with costs, to come out of the pocket of the solicitor 
 who had unfairly taken the depositions. 
 
 It seems that courts of equity do take notice of errors of 
 the kind, here complained of, at any stage of the proceedings 
 in the cause before hearing. 
 
 The depositions taken in this case must be suppressed. 
 
 But as in the case of Shaw vs. Linsday, 15 Ves., 384, if it 
 should happen that the witnesses could not be examined agajn,
 
 36 CASES IN CHANCERY. 
 
 Firstcircuit. i^jg order does not go to the length of preventing the court's 
 ^^'^i^^ directing, hereafter, that the depositions may be opened if 
 Hogge. necessity should require the rule to be dispensed with. 
 Depositions suppressed^ 
 
 A new order was obtained to take testimony, and the testi- 
 mony having been taken and returned, the cause came on for 
 final hearing. 
 
 A. D. Frazer, for complainant. 
 
 Inadequacy of price, unless it amounts to conclusive evi- 
 dence of fraud, is not, of itself, a sufficient ground for refusing 
 a specific performance. Although this was a case of an auc- 
 tion sale, the opinion was pronounced on the general doctrine. 
 {Hatch vs. Hatch, 9 Vesey, 292.) 
 
 In another case the chancellor declined giving an opinion on 
 this doctrine. {Mortlock vs. Butler, 10 Vesey, 292; Western 
 vs. Russell, 3 Ves. 8f Beam's, 187.) 
 
 In another case it was expressly ''held on a bill for specific 
 performance, that if the parties bargained with their eyes open, 
 and without imposition or surprise, mere inadequacy of price 
 was not of itself sufficient to prevent the court from adminis- 
 tering its usual equity." {Colyer vs. Brown, I Cox, 428.) 
 
 This say the court of errors in the state of New York in a 
 similar case: "is the doctrine of common sense and common 
 honesty, for it may be asked with propriety, what right have 
 we to sport with the contracts of parties fairly and deliberate- 
 ly entered into, to prevent them from being carried into effect'?" 
 The court farther say, " much property is held by contract, 
 purc\ia,ses are constantly made on speculation, the value of 
 real estatb is constantly fluctuating, and in such matters there 
 most generally exists anjionest difference of opinion in regard 
 to any bargain, as to its being a beneficial one or not. To 
 say, when all is fair, and the parties deal on equal terms, that 
 a court of equity will not interfere, does not appear to me to 
 be supported by authority." [Seyinour vs. Delancy, 3 Cowen, 
 532; King and others vs. Hamilton and others, 4 Peters R., 328; 
 Day vs. J^ewman, 2 Cox, 77; Willan vs. JVillan, 16 Ves,, 83.)
 
 CASES IN CHANCERY. 37 
 
 WooDCRiDGE and Backus, for defendants. Firstcircuit. 
 
 Burtch 
 vs. 
 
 H. T. Backus. 
 
 The specific execution of agreements in a court of chan- ""^^^ 
 eery, is not ex debeto justitice. [Jlltorney General vs. Day, 1 
 Ves.y 219.) But a bill for the specific performance of an agree- 
 ment, (even where the agreement is in writing,) is addressed 
 to the sound discretion of the court, in the exercise of its ju- 
 risdiction. [Seymour vs. Delancy and others, 6 Jolin. Ch. R., 
 222.) If its specific performance is refused, the party loses no 
 right, for the only remedy to which the party has a right, is 
 his remedy at law for damages for the breach of contract. 
 
 An agreement (even in writing,) must be certain, specific, 
 mutual, and for an adequate consideration to be specifically 
 performed. {\ jMad. Ch. /?., 423; Parhurst\5. Van Cortland, 
 1 John. Ch. R., 273; Benedict vs. Lynch, Id., 370.) Where the 
 agreement is uncertain, the court will refuse a specific perfor- 
 mance. (1 J\Iad. Ch. R., 426; 2 S. andLef., 7, 553; Js'^eicland 
 on con., 151; Brownly vs. Zefftees, 2 Vernon, 415.) Where 
 there is any doubt as to the identity of the lands to which a 
 contract relates, a court of equity ought not to decree a spe- 
 cific performance. {Graha77ivs. Hend7'e7i, 5 JMunf., 185; Cal- 
 verly vs. WiUia7ns, 1 Ves. Jr., 210.) A contract must be so 
 precise that neither party can misunderstand it, or it will not 
 be specifically performed by chancery, but the parties will be 
 left to their remedies at law. [Cohon vs. Thompson, 2 Wheat., 
 .336.) 
 
 Inadequacy of consideration, (even in the absence of all 
 fraud,) is a sufllicient reason for refusing a specific performance, 
 for an agreement must be just and fair in all its parts, otherwise 
 a specific performance will not be decreed. [Sey77iour \s. De- 
 lancy, G John. Ch. R.,222; Clethei-al vs. Ogilvie, 1 Dessau., 275.) 
 A court of chancery will refuse a specific performance where 
 the price of sale is very low. (1 Mad. Ch., 425; 3 Broic7i 
 C. C, 228; 2 Cox, 77; ^Teioland on contracts, 66; 10 Ves., 
 592; 1 Ves., 279; Fonhlan Eq., 234; 3 Ves. a7id Beam, 192-3.) 
 Even a contract will be rescinded and conveyance set aside for 
 inadequacy of consideration. (Sugden laiv of vendors, 170,-171 ;
 
 38 CASES IN CHANCERY. 
 
 First Circuit. 2 Bi'owii^ s C. C, 150; 1 Vernon, 465; 1 Brown's C. C, 176; 
 ^^^^^^^^^ 6 John. Chan. Rep., 222.) Inadequacy of price is often (even 
 
 vs. 
 
 in the absence of all fraud) the ground of refusing a decree 
 for specific performance, though not sufficient of itself to in- 
 duce the court to set aside an executed agreement, but the 
 court will leave the parties to their remedy at law. (Osgood 
 vs. Franklin, 2 John. Chan. R., 23; 14 John. R. on appeal, 527; 
 1 Vern., 472; Azvbry ys. Keen, Chan. Cas. 19; 1 Dessau., 250.) 
 Nor will a court of chancery decree a specific performance 
 against a widow entitled to dower. {Sugden law of vendors, 
 142.) 
 
 But where an agreement is certain and for an adequate con- 
 sideration, to be specifically performed by the decree of a 
 court of chancery, it must be in accordance to the forms pre- 
 scribed by law. (1 Mad. Chan., 372; 3 Fes., 420; 3 Jltkins, 
 385; 1 Veseij, 279; 1 Eden., 323.) The statute requires all 
 agreements touching lands to be in writing. In this, equity 
 follows the law. A letter or receipt may be sufficient wri- 
 ting within the statute; but it must specify all the terms of the 
 contract. The most trifling omission is fatal; {Sugden law 
 vendors, 45, 48;) for an agreement cannot rest partly in wri- 
 ting and partly in parole. (1 John. Ch. R., 131, 272.) It is 
 insisted that the case in hand is taken out of the operation of 
 the statute by part performance; this exception (of part per- 
 formance) to the operation of the statute is viewed with ex- 
 treme jealousy, and properly so, by courts, as tending to 
 relax a salutary rule of law, and open a door for all the frauds 
 the statute was intended to guard against. {Foster vs. Hale, 3 
 Ves., 712, 382. ) Part or full payment of the purchase money, 
 (even on full and distinct proof of parole agreement,) is not such 
 a compUance with the spirit of the statute as a court of chan- 
 cery will recognize and carry into execution. (1 J\Iad. Ch., 
 381; 2 Des., 190; Lord Pangall vs. Ross, 2 Equity Ah., 46; 
 Leah vs. Morris, 2 Chan. Ca., 135; vide. Lord Redesdales re- 
 marks in the case of Clenan vs. Cook, 1 Sch. and Lef., 40.) 
 Where, he says, payment of purchase money will in no case 
 amount to a part performance, nor will giving directions for
 
 CASES IN CHANCERY. 39 
 
 conveyances, deeding estate, «fec., take a case out of the sta- Fint crcuit. 
 tute. {Clark vs. Wright, 1 Ath., 12; IVhaley vs. Bagnall, G ^^^^ 
 Brown C. C, 45; Gwins vs. Calder, 2 Dessau., 190.) Hogge. 
 
 To take a case out of the operation of the statute on the 
 ground of part performance, the existence of the contract as 
 laid in the bill must be made out by clear and unequivocal 
 proof, and the acts of part performance must be of the identi- 
 cal agreement set up. {Phelps vs. Thompson, 1 John. C. R., 131, 
 149; Parhurst vs. Van Cortland, 273, 284-5.) It is not suffi- 
 cient that the act is evidence of some agreement, but it must 
 show unequivocally, the existence of the particular agreement 
 set forth in the bill, and that that very agreement was in part 
 executed. {Lindsay vs. Lynch, 2 Schols. and Lef. 8.) 
 
 W. WooDBRiDGE. — Certainty in a contract is essential; if 
 uncertain, a specific execution will be refused. (1 J. C. R., 
 273, 131; 14 Johns. R., 15; 7 /. C. R., 13; 1 Mad., 336-7; 
 1 Vern., 406; 5 Munf., 185.) 
 
 Equity will not compel a specific execution, unless when 
 essential to justice. {Mitf. PL, 119.) A hard bargain mere- 
 ly, therefore, will not be opened, especially as to infant heirs. 
 
 '^Already have so many cases been taken out of the statute 
 of frauds, which seem to be within its letter, that it may well 
 be doubted whether the exceptions do not let in many of the 
 mischiefs, against which the statute was intended to guard. 
 
 The best judges in England have been of opinion that this 
 relaxing construction of the statute ought not to be extended 
 further than it has already been carried, and this court entire- 
 ly concurs in that opinion.*' (4 Cranch, 224; 2 Peters Cond. 
 Rep., 96; 1 Mad., 302-3; 3 Ves., 712; 6 Ves., 32, 37; bMunf., 
 185, 318.) In such cases the complainant should be left to seek 
 his remedy at law. (1 Wheat., 197.) 
 
 Part performance implies a fraud on the opposite party. 
 {See Story's Eq., 66, 74; 1 J. C. R., 149.) Payment is no part 
 performance. (2 Stori/s Eq., 64-5; 5 Munf., 317.) 
 
 The Chancellor. — The bill in this case is filed to compel
 
 40 CASES IN CHANCERY. 
 
 First circuit, the specific performance of a special contract to convey land. 
 Burtch Two questions arise for the consideration of the court. 
 Hogge. First. Has there been such a contract proved as will enable 
 
 this court to decree a specific performanceT and, 
 
 Second. Has there been such a part performance as will take 
 Ihe case out of the statute of frauds. 
 
 That there was an agreeinent or contract for the sale of 
 some portion of, or interest in the McNiel tract (so called) at 
 the mouth of Black river, in St. Clair county, by Robert Hogge 
 to Jonathan Burtch, cannot admit of a doubt. Several receipts 
 have been produced by Burtch, in which Hogge acknowledges 
 the receipt of money to apply as payments on the land sold by 
 him to Burtch. Although these written receipts do not show 
 W'hat the contract w^as, they are evidence of some contract be- 
 tween the parties respecting the sale and purchase of land; 
 and it is pretty clearly shown by Hogge's acknowledgments, 
 that he had sold to Burtch his undivided interest of between 
 seven and eight acres of land in the McNiel tract, (reserving to 
 himself one half acre,) for the sum of $130. 
 
 Testimony on the part of the complainant. 
 
 WiUiam H. Carleton states, that he '• heard Hogge say in 
 1832, that he had sold all his lands at the mouth of Black ri- 
 ver, except half an acre, to Burtch, who had pretty much paid 
 all up for the same.*' Previous to this, heard Hogge saying 
 " that he had bought at the mouth of Black river, seven acres 
 or seven acres and some hundredths of an acre." 
 
 Harman Chamberlain states that he received $45 from Burtch 
 in July, 1832, to pay to Hogge for land purchased by Burtch 
 formerly from Hogge, which he paid accordingly. Proves the 
 execution of Hogge's receipt for $85; also a receipt for $36, 
 and two receipts for $23, by Hannah Hogge. Heard Hogge 
 say " that he had sold a part of his interest in his lands at 
 Black river, about seven acres, to Burtch; understood it to be 
 of the lands purchased by him from E. P. Hastings. This was 
 in the fall or winter of 1831." That Burtch was in possession 
 before the death of Hogge; that Burtch has erected upon said 
 land, since the death of Hogge, a store, tavern-house and one
 
 CASES IN CHANCERY. 41 
 
 barn, the value of which he believes to be about $2,500 — and Firsiarcuit. 
 Were erected from 4 to 5 years since; that Hannah Hoarse '"■^^'^^^ 
 
 •' _ ' o& Bunch 
 
 asked him whether she had a ri^ht or ounrht to give a deed to „ "• 
 
 <- o o Hoggc. 
 
 Burtch of the land, she being the administratrix; that Hogge's 
 deed was given to Burtch to take to Detroit to have the ne- 
 cessary papers made out to obtain a deed; that Burtch has 
 continued in possession, where he built, ever since; that Hogge 
 when he purchased of Hastings, supposed that he had pur- 
 chased 30 acres, and was then ignorant of the Hasten claim; 
 understood that the sale from Hogge to Burtch consisted of 
 seven acres, and that it was an undivided interest; estimates 
 the seven acres in 1831, at 8500; considered Hogge an intelli- 
 gent man and as capable of estimating the worth of property 
 as most men. 
 
 Israel Carleton testifioo that Hogge told him, that he iiad 
 purchased a part of the McNiel tract in company with a Mr. 
 Sales; has heard him say that he had sold his interest, ex- 
 cept half an acre, to Burtch, and had made about $90 in the 
 trade; heard him say this in various conversations in 1832; 
 the lands referred to are near the mouth of Black river; testi- 
 fies to the payment of -$40 on the purchase, and proves the re- 
 ceipts of Robert and Hannah Hoggc; that the land sold to 
 Burtch by Hogge, was an undivided interest, reserving half an 
 acre. 
 
 Edmund Carleton says, that in the summer of 1832, in con- 
 versation with Hogge respecting a payment to be made by him 
 and Hogge jointly, Hogge stated that he expected to receive 
 $80 or $90 from Burch, in part payment for some lands sold 
 him at the month of Black river; said that the lands were un- 
 divided, that he, Hogge, had reserved half an acre. 
 
 Ira Porter testifies that he heard Hogge speak of his pur- 
 chase in December, 1831; that the interest was an undivided 
 interest, and purchased jointly with Edward Sales, and was a 
 portion of the McNiel tract, situated at the mouth of Black 
 river; sometime in January or February, or there about, of 
 1832, Hogge, in conversation with Harrington and others, said 
 that he had sold out his interest in the McNiel tract to Burtch, 
 
 Vol. I. 6
 
 42 CASES IN CHANCERY; 
 
 First circuit, reserving half an acre, for $140 or $150; in the spring of 1832, 
 '"^'^''^^^ Hoffffe requested him. Porter, to make out a conveyance, and 
 
 Burtch "^ '■ 
 
 Holge. he did so accordingly, and gave it to Hogge; it was prepared 
 in exact accordance with Hogge's instructions, and was read 
 to him, and no fault found with it; he paid witness for draw- 
 ing it; estimates the value of improvements made by Burtch 
 and his assignees, between the date of the purchase and the 
 commencement of this suit at between $1,800 and $2,500; 
 Burtch and his assigns, have been in possession ever since the 
 purchase; thinks the white store was erected after the date of 
 the deed; Burtch rented to Sampson. 
 
 John S. Heath says that in June or July, 1832, he had a con- 
 versation with Robert Hogge, who then told him that he had 
 formerly an interest in six or seven acres of land at the mouth 
 of Black river, but had sold the saint; to Eurtoh, reserving half 
 
 an acre. 
 
 Jeremiah Harrington testifies that in the year 1832, Robert 
 Hogge told him that he had sold to Burtch, all but half an acre 
 of the land which he had bought in the McNiel tract, and had 
 received his pay in full for it; it was from seven to eight acres; 
 had two conversations with Hogge, in which he said the same 
 thing. 
 
 Jacob Miller states, that 1832, he had a conversation with 
 Hogge about the purchase of half an acre of land. Hogge 
 told him he had sold to Burtch, his land in the McNiel tract, 
 reserving half an acre; thinks it was seven acres which Hogge 
 said he had sold; Hogge said he had received some part of 
 his pay; had more than one conversation with him on the 
 subject, one of which was in May, 1832; knows that Burtch 
 was in possession of some part of the McNiel tract a year be- 
 fore this conversation. 
 
 John Thorn states, that Robert Hogge called upon him to 
 make out a deed to Burtch for some portion of the McNiel 
 tract, and had his papers with him. It was some certain in- 
 terest with the reservation of half an acre; Hogge refused to 
 leave the papers on account of the price the witness would
 
 CASES IN CHANCERY. 43 
 
 charge for making the deed; Hogge's deed was from Eurotas r'l"^ circuit. 
 P. Hastings, who derived title from Sibley and Kearsley. Burtcii 
 
 Defendant's witness. 
 
 John Thorn testifies, that he had a conversation with Hogge 
 in 1831 or 1832, about making out a deed from him to Burtch, 
 for some certain interest which he had sold to Burtch in the 
 McNicl tract, at the mouth of Black river; it was an undivi- 
 ded interest which Hoggc wished to convey; that Hogge pro- 
 duced the patent to Solomon Sibley, and a transfer by Sibley, 
 and also by Jonathan Kearsley as the administrator of the estate 
 Edward Prucell, to E. P. Hastings, and a transfer from Has- 
 tings and wife, to Hogge; that he. Thorn, could not understand 
 from Hoggc how much intei-est he wished to convey to 
 Burtch; that Hogge intended to reserve soujething more than 
 half an acre; that Hogge gave him to understand, that the 
 reservation which he wished to make was subject to litigation 
 for the reason that he, Hogge, had been induced to believe, by 
 those of whom he purchased, that he had purchased a sixth 
 instead of a third part; that he. Thorn, advised Hogge that it 
 appeared from his papers that he had purchased a third instead 
 of a sixth part; that he. Thorn, did not make out the deed in 
 consequence of the uncertainty of the amount of interest to 
 be conveyed and the price which he charged for making the 
 proper investigation and the deed; that Burtch was living on 
 the McNiel tract previous to Hogge's purchasing any interest 
 therein; that he estimates the value of the land in the McNiel 
 tract in 1832, with a clear title, at $10 per acre; at this time 
 $500 per acre. 
 
 On his cross-examination says: the original patent of the 
 McNiel tract, containing about ninety acres, was to Solomon 
 Sibley; it appeared by the papers shown by Hogge, that Sib- 
 ley purchased for himself and two others; that one of them 
 was Edward Prucell; that PrucelFs interest appeared to have 
 been sold to E. P. Hastings, by Kearsley, who was Purcell's 
 administrator; that Sibley's interest also had' been sold to 
 Hastings; that Hogge derived his title through Hastings; that 
 after Hoggo had purchassed Prucell's third, as he supposed, 
 
 vs. 
 Hogge.
 
 44 CASES IN CHANCERY. 
 
 Firstcircuit. and paid his money therefor, those from whom he had pur- 
 '^-^"-^'^^^ chased endeavored to persuade him that he had purchased only 
 
 Burtch , . , TT -11 • L it- 
 
 „^'- a sixth instead of a third; Hogge said the reason given by the 
 persons from whom he derived title, why he had not purchased 
 a third, was, that Prucell had sold a part of his interest to 
 Hasten; that he, Thorn, saw the original articles of agree- 
 ment between Prucell and Hasten, at General Larnard's office, 
 in Detroit, subsequently to Hogge's purchase; that he believes 
 the articles were signed by both Prucell and Hasten; it was 
 an agreement to convey half of Prucell's interest in the Hc- 
 Neil tract, and the one half of other lands. 
 
 It is proven by several witnesses that Hogge, in his life 
 time, stated that he had sold about seven acres; and nearly all 
 the witnesses speak of this as the quantity, i-eserving to him- 
 self half an acre. 
 
 Thorn says that he did not understand what the interest was 
 which was reserved; that it was half an acre and something 
 more, and that it was subject to litigation. I think Thorn's 
 deposition, together with the testimony of the other witnesses, 
 explains the difficulty. 
 
 It appears that nearly all the witnesses understood the inte- 
 rest sold to have been seven acres. From the deposition of 
 Israel Carleton it appears that the purchase was made by 
 Hogge and a Hr. Sales; from the deposition of Hr. Thorn, 
 that it was a matter of doubt and dispute whether they had 
 purchased the one third or one sixth. They at first supposed 
 it to have been one-third, but it afterwards appeared that there 
 was an outstanding contract made by Prucell, to convey one 
 half of his interest to a man by the name of Hasten. This, I 
 think, explains the seeming discrepancy, and shows clearly 
 that the understanding of the witnesses that the interest which 
 was to be conveyed, was seven acres, and that the i-eservation 
 was to be something more than the half acre, and that it was 
 subject to litigation. And Hogge's objection to signing the 
 deed is also explained. 
 
 It is hardly possible that so many witnesses can be mistaken 
 as to the amount of interest to be conveyed. It is apparent to
 
 CASES IN CHANCERY. 45 
 
 my mind that Hogge intended to convey to Burtch the seven First circuit. 
 acres; to reserve to himself all ihe right which he had to the ^^^rh 
 other sixth, claimed by Hasten. The land containing ninety- Hogge. 
 one acres and forty-one hundredths, it seems by the testimony, 
 was originally divided into three shares, making thirty-one 
 acres and forty-six hundredths each. One half of this share, 
 which was asserted to belong to Hogge, as appears by Thorn's 
 deposition, had been contracted to Masten by Prucell, which 
 would leave, if the contract should prove a valid one, fif- 
 teen acres and twenty-three hundredths as the part belong- 
 ing to the estate of Prucell. This, it appears, was purchased 
 by Hogge and Sales together. This, then, would leave, with- 
 out reference to the disputed one-sixth, alledged to have been 
 contracted to Masten, the seven acres testified to by the wit- 
 nesses, and the reservation of the half acre and a small fraction 
 over, to Hogge. And this substantially and satisfactorily ex- 
 plains the whole of the evidence. 
 
 From all the evidence in the case, I think it clear that Hogge 
 had sold his undivided interest of seven acres in the McNiel 
 tract to Burtch, reserving to himself all over the seven acres, 
 supposing it to be about a half an acre. 
 Second. As to the part performance. 
 
 It appears clearly by the proofs in this case, that a principal 
 part of the purchase-money was paid to Hogge in his lifetime, 
 and that the balance was paid to Hannah Hogge, his wqdow, 
 who was administratrix of his estate, soon after his death. 
 
 The question, whether the payment of the purchase-money, 
 is such a part performance of a parole contract to convey land, 
 as will take it out of the statute of frauds, seems to be as yet 
 unsettled. But the case does not turn on this point alone. It 
 has been proved that Burtch was in possession of a portion of 
 the McNiel tract at the time he purchased of Hogge, and that he 
 has ever since remained in possession; that he had made valu- 
 able impi'ovements on the same after his purchase from Hogge, 
 and before the commencement of this suit; that these improve- 
 ments were worth from $1,800 to $2,500. 
 
 There is some doubt, perhaps, as to the time some portion
 
 46 CASES IN CHANCERY. 
 
 First Circuit, of the improvements were made; but that the most valuable 
 ^"^^^^^^ and expensive were made after the purchase by Burtch from 
 Hogge. Hogge, there can be no doubt. 
 
 The payment of the purchase money, the possession, and 
 the improvements made by Burtch since the purchase, I think, 
 are clearly sufficient to take this case out of the statute of 
 frauds. (1) 
 
 It has been urged that there was such an inadequacy of price 
 that this court will not decree a specific performance. 
 
 Inadequacy of price, where it is so gross and palpable as of 
 itself to afford evidence of actual fi'aud, may be sufficient to 
 induce this court to stay the exercise of its discretionary pow- 
 er to enforce a specific performance, and leave the party to 
 his remedy at law; but inadequacy of price merely, without 
 being such as to prove fraud conclusively, is not a good objec- 
 tion against decreeing a specific performance. {See Setjmour 
 vs. Delancy, on appeal, 3 Coiven, 445,) where all the authori- 
 ties upon this subject are collected. 
 
 The value must be taken at the time the contract was made. 
 
 There is some discrepancy in the testimony as to the value 
 of the land at that time. Chamberlain, in his testimony, esti- 
 mates its value in 1831 at $500. Thorn, in his deposition taken 
 by the defendants, estimates the lands in this tract in 1832, 
 with a clear title, at #10 per acre, making $70 for the seven 
 acres. The price agreed upon was $150. Where witnesses 
 vary so much, with equal opportunities of judging, it would 
 certainly be going very far for this court to come to the con- 
 clusion that there is any such inadequacy in the price, which 
 the parties themselves have agreed upon, as to amount to fraud, 
 when it appears, too, that Hogge sold at an advance, although 
 he only retained the lands from December to May following. 
 
 (1) See 2 Story's Eq., 02, 76; Miller vs. Haicler, 2 Rawle, 53; Eckert vs. Eckert, 3; Penns., 332; 
 Stewart vs. S'ewart, 3 Walls, 258; Wilbur vs. Paine, 1 Ham., 253; Waggoner vs. Speck, 3 f/am., 
 293; Moore vs. Bearslcy, 3 Ilam., '..9J; Marks vs. Pell, 1 JoliTis. Ch., 594; Strong vs. Stewart, 4 
 Johns. Ch., 167; Washburn vs. Merrills, 1 Day, 139; Daniels vs. Alcord, 2 Root, 196; Ross vs. JSow- 
 ell, 1 Wash., 15; Walkins vs. Stockett, Har. fy McHen., 21; Wilcox vs. Morris, 1 Murph., 117; 
 Wilcoz vs. Carver, 1 Hayw., 93; Bellon vs. Avery, 2 Root, 279; Whecland vs. Swartz. 1 Yates,T49 ; 
 Mackey vs. Brownjield, 13 Serj. ^ Rawle, 239; Crocker vs. Biggins, 7 Conn., 312; Cahot vs. Tfas- 
 kins, 3 Pick., 95; Freeport vs. Bartol, 3 Greenl., 34U; Doicney vs. Hotchkiss, 2 Day, 225; Wet- 
 more vs. White, 2 Caine's Ca., 87, a leading case; Phillips vs. Thompson 1 Johns. Ch., 131; 
 Townsend vs. Sharp, 2 Overton, 192; Hickman vs. Grimes, 1 Marsh., 86; Thompson vs. Todd, 1 
 Pfters S. C, 385; Bassler vs. Nicrly, 2 Serg. fy Rawle, 3,-5; Jrnies vs. Pcterman, 3 Scrg. If 
 Rawle, 546; Meach vs. Stone, 1 Chipman, 182. ! => ^
 
 CASES IN CHANCERY. 47 
 
 The prayer of tlie bill must be granted or refused. Here is Firstcircuit. 
 payment for the lands, all the possession of which the subject ^^^^^^ 
 matter was capable, and an expenditure, according to the tes- nogge. 
 timony of Chamberlain, of $2,500, and according to Porter's 
 deposition, of from $1,800 to $2,500. 
 
 The fact that the lands on which the improvements were 
 made were undivided, would, perhaps, be entitled to some con- 
 sideration. But it is not to be believed that Burtch made these 
 expensive improvements without reference to his interest in 
 the lands, relying upon obtaining an allowance therefor on a 
 division with the other owners. There may be some doubt as 
 to whether the eleven hundredths over the half acre were to 
 be retained by Hogge, or conveyed to Burtch. But the wit- 
 nesses most of them, designate the quantity at seven acres, and 
 as the remainder would be so near the half acre, it would na- 
 turally be mentioned as a half acre. 
 
 The decree must be for a conveyance(2) of Hogge's undi- 
 vided interest in the McNiel tract, of seven acres, to the com- - 
 plainant, reserving to the heirs and legal representatives of 
 Hogge, all other right, title and interest which they may have 
 in said tract, and without prejudice to the right of dower there- 
 in of Hannah Doran, late Hannah Hogge. 
 
 (2) The cases and their varieties are numerous in which courts of equity have compelled 
 the performance of parol agreements to convey lands, and refused so to do. Tlie earlier cases 
 have been collected and well digested in a note to Fonblank'g Rq., (1 Fonbl. Eg., 29.; The 
 later cases have been collected in a note to the third American edition of IVIitford's Pleadings. 
 (See Mit. PI., 119.}
 
 48 CASES IN CHANCERY, 
 
 Henry V. Disbrow vs. De Garmo Jones and others. 
 
 First CSrcuit. The possession of a tenant is notice to a purchaser of the actual interest the tenant may have In 
 i^..^>-^^ the premises. 
 
 Disbrow Insurance is a personal contract, and does not pass with the title of the property insured. 
 
 vs. 
 Jones. 
 
 This was a motion to dissolve an injunction. The facts in 
 the case, as appdar from the bill, and answers of Jones and 
 John L. Whiting, two of the defendants, are as follows : 
 
 De Garmo Jones was owner of lots No. 186 and 187, in sec- 
 tion four, in the city of Detroit; and February 1, 1832, he de- 
 mised the same, with the w^arehouse thereon, to John L. Whi- 
 ting and John J. Deming, for the term of five years, at a rent 
 of ^600 per year, payable quarterly. The lessees covenanted 
 in the lease to keep the warehouse on the premises insured 
 against loss or damage by fire, for not less than 82,500, in the 
 name of and for the security and benefit of Jones; and Jones 
 covenanted in the lease, that in the event the warehouse should 
 be consumed by fire and from hazards contemplated by the 
 policy, he would re-build it wathin six months after its destruc- 
 tion. September 10, 1834, Jones endorsed upon the lease an 
 agreement to extend the term two years longer, for an addi- 
 tional sum of not exceeding $200 per year. 
 
 April 27, 1836, Jones sold and conveyed the premises to 
 Augustus Garret, Daniel B. Brown, Nathaniel J. Brown, Wil- 
 liam R. Thompson and George W. Hoffman, for the sum of 
 $20,000. The conveyance contained covenants of seizure and 
 warrantee, and also covenants against incumbrances. The 
 purchasers gave their notes for $4,000 at four months, and also 
 their bond and mortgage on the premises for §16,000, payable 
 in five equal annual instalments, with annual interest. 
 
 An agreement was entered into at the same time, between 
 Jones and his vendees, reciting the extension of the term to 
 Whiting, (who had purchased the interest of Deming in the 
 lease, and then occupied and continued to occupy the premi- 
 ses up to the time of filing the bill,) stipulating that during the
 
 CASES liN CHANCERY. 40 
 
 two years, or until possession should be given up by Whiting, FiratCircuit. 
 Jones should pay to his vendees the interest of the -$20,000 in „. , 
 lieu of the rents for that time; and the rent was to be received jo'Jfes. 
 by the vendees up to February 1, 1837. 
 
 "Whiting was at the same time, applied to, to know whether 
 he wouid surrender the possession of the premises on the first 
 of February, 1837, and he declined doing so, and stated that 
 he should hold the premises for the full term to which the lease 
 had been erxtended, (being two years from February 1, 1837,) 
 and all the vendees were informed of that fact. 
 
 Soon after the purchase, Garrett, Brown and Brown sold 
 and conveyed all their interest to Thompson, and afterwards, 
 October 21st, 1830, Thompson sold and conveyed all his inte- 
 rest to Disbrow, the complainant, and in payment therefor. Dis- 
 brow conveyed to Thompson a certain tract of land at the sum 
 of $3,200, or there abouts;-gave his bond in a penalty of $2,000, 
 or there abouts, and gave his note for $2,070. 
 
 December 7, 183G, Whiting obtained insurance from the Pro- 
 tection insurance company on the warehouse, for 82,500, in 
 his own name, but as stated in his ansvv^er and also in the an- 
 swer of Jones, it was in fulfillment of his covenant contained 
 in the lease, and for the benefit and security of Jones. 
 
 April 26 and 27, 1837, the w^arehouse was burned down, and 
 the loss, as charged in the bill and admitted in the answers, was 
 within the policy of insurance, and the insurance company 
 were willing to pay to Whiting. No part of the consideration 
 money had been paid to Jones, except the one-fourth part of 
 the note paid by Hoffinan. and no part of the amount for which 
 the bond and mortgage were given had ever be^n paid. The 
 bill alledgcd that Disbrow, on the 27th of April, 1837, tendered 
 and offered to pay his proportion, being three-fourths of the 
 amount due, if Jones would stipulate to give him possession, 
 and re-build or erect another storehouse upon the premises 
 within a reasonable time, and would also give him the propor- 
 tion which he claimed, (being three-fourths) of the insurance 
 money. The answer denies such tender and offer, but states 
 that Jones then called on Disbrow for pavmcnt of the amount 
 
 Vol. I. 7
 
 50 CASES IN CHANCERY. 
 
 Fiiatcircuit. ^f ^^g purchase money then due, and Disbrow declined paying, 
 ""f^^^^ saying at the same time, he had not had possession, and was 
 jon'es. not liable to pay until the building was re-placed and the pre- 
 mises put in the condition they were before the warehouse was 
 destroyed by fire. The answer also stated, that some conver- 
 sation was had concerning the insurance, in which a claim was 
 set up by Disbrow for a part of the insurance money; which 
 claim was denied by Jones. 
 
 The answer of Whiting stated his damages, in case the co- 
 venant by Jones, to re-build, was not performed, would amount 
 to not less than $2,000 per year, over and above the rent. 
 
 It was charged in the bill, and admitted by the answer, that 
 the building destroyed was worth more than $2,500, and that it 
 would cost more than $3,000 to erect one eqHa.l.ly valuable and 
 capacious on the premises. 
 
 April 29, 1837, Jones proceeded to foreclose his mortgage 
 upon the premises, by advertisement; amount then claimed to 
 be due being $4,320, and the premises were advertised to be 
 
 sold July 31, 1837. 
 
 It was stated in the bill that the whole of the premises had 
 had been advertised for sale by Jones, for the first instalment 
 of $4,320, and insisted that it was not competent to advertise 
 and sell more of the premises than were necessary to pay the 
 amount of the purchase money and interest then due. In re- 
 ply to this statement in the bill, the answers stated that the 
 premises were situated on the Detroit river, at the foot of 
 Woodward avenue, being 100 feet on the river and 86 feet on 
 the avenue, and derived their principal value from being ad- 
 vantageously situated for a wharf and for commercial purpo- 
 ses. « 
 
 The bill also alledged the mortgage to be defectively execu- 
 ted, there being but one witness to the execution by Garrett 
 and N. J. Brown, and prayed for an injunction to restrain the 
 insurance company from paying over the money, and to inhibit 
 and enjoin Jones from proceeding to foreclose his mortgage 
 under the advertisement, &c., and that Thompson be decreed 
 to vest in complainant a more perfect title to the premises, or
 
 CASES IN CHANCERY. 51 
 
 that the sale from Thompson to complainant might be set aside, first circuit, 
 and that he repay the purchase money to complainant, &c., oisbrow 
 and for other and further relief. jonia. 
 
 A motion was now made to dissolve the injunction for want 
 of equity in the bill, and the answers denying all the equity 
 alledged. 
 
 Goodwin and Romevn in support of the motion, 
 
 D. Goodwin. 
 
 I. The first point which seems to be made in the bill, as a 
 ground for the injunction, is the covenants in the conveyance 
 by Jones, and the possession under the lease. 
 
 1. If the facts be admitted on which this complaint is 
 founded, the remedy is peculiarly and solely at law by action 
 of covenant, by Disbrow against his grantor. 4 Kent's Com., 
 471 to 473. 
 
 2. This w^as provided for by the agreement of parties, and 
 the lease to Whiting is no breach. All the papers executed 
 together, constituted one agreement, and by it Whiting was to 
 possess under the lease; the vendees of Jones M^ere to receive 
 the rents up to February 1, 1837, and for the two years there- 
 after Jones was to receive the rents and pay the vendees in 
 lieu thereof, 81,400 per annum. There is no ground of com- 
 plaint either at law or in equity. Jones continued the landlord 
 the two years, paying as aforesaid, and then the vendees were 
 to have possession, or sooner if Whiting voluntarily surrendered 
 possession before that time. 
 
 3. Whiting being in actual possession, complainant and all 
 other parties, had notice of his term. Daniels vs. Davison, 16 
 Veseij, 249; Taylor vs. Stibhert, 2 Vesey, 437; Chesterman vs. 
 Gardner, 5 John. Ch. R., 29; Grimstone vs. Carter, 3 Paige, 
 421. 
 
 II. As to the tender alledged in the bill of apart of the mo- 
 ney, and the insurance money. 
 
 1. There should have been an unqualified tender of the 
 whole amount due, to make any case for equity. A qualified
 
 53 CASES IN CHANCERY. 
 
 Firstarcuit. tender is insufficient; so also, a tender of a part only, is not a 
 Disbrow sufficient tender. 
 
 Jones. If complainant has any claim to possession, or for re-build- 
 ing, or for the insurance money, it is at law. If complainant 
 is entitled to the insurance money as reversioner, he may re- 
 cover in an action at law; and there is no allegation in the bill 
 that either Whiting or Jones would not be responsible for it, if 
 paid into their hands. 
 
 2. The tender is denied in the answer by Jones. 
 III. The complainant has no claim upon Jones to re-build, 
 nor has he any claim for the insurance money. 
 
 1. There is no contract between Jones and his vendees upon 
 which such a claim can be founded. 
 
 2. By agreement between Jones and his vendees. Whiting 
 was to have possession the two years; Jones to continue the 
 landlord and receive the rents. At the expiration of the two 
 years, the vendees were to have possession of the premises as 
 they then are. During that time, the mouths of the vendees of 
 Jones are closed, and they have nothing whatever to say, touching 
 the possession. The vendees and the complainant under them, 
 until that time, are estopped. 
 
 3. The contract of insurance is personal between the par- 
 ties, and the parties only to the contract can claim the benefit 
 of it, except by agreement whei-eby a trust is created, as 
 was the case between Jones and Whiting. Saddlers' com., vs. 
 BahcocTi, 2 Jllkyns, 557, 558; Mildmay vs. Folgham, 3 Vesey, 
 472; Holtzopffel vs. Baker, 18 Vesey, 114; Columbian ins. co. 
 vs. Lawrence, 10 Peters, 507; 'Lament vs. Chatham ins. co., 1 
 HalPs R., 45. 
 
 4. Even if complainant and those in interest with him, could 
 claim the insurance money under the covenant in the lease, 
 they must assume the place of Jones and perform the contract 
 to Whiting to re-build in six months, and indemnify Jones 
 against it. The damages of non-performance. Whiting states 
 in his answer, will be not less than $2,000 per year, above the 
 rents. 
 
 5. Whiting has the equitable right to hold the insurance
 
 CASES IN CHANCERY, 63. 
 
 money as security for the performance of Jones' covenant to F'^'Circuii. 
 J*e-biiild. """S^ 
 
 6. The complainant's bill is founded on a mistaken view of Jones, 
 the premises. It should have been (if any thing,) a bill to re- 
 deem and for an account for that purpose. The mortgagee 
 has a right under his mortgage to possession, and to the rents 
 and profits, unless there be an agreement to the contrary; and 
 if he obtains possession, he accounts for the rents and profits. 
 The grantee subject to the mortgage, takes subject to the 
 equitable rights, and of them he must take notice; if he is de- 
 ceived by his grant or, his remedy is against him alone, and this 
 cannot prejudice the mortgagee. 2 Cruis. Big., 97 ^o jOl; 4 
 Kent Com. 154, 155, 1G4. 
 
 T. ROMEYX. 
 
 I. The first point made by the bill seems to be the breach of 
 covenants in the conveyance by Jones, through Whiting's con- 
 tinued possession. What were Jones' covenants? They are, 
 seisin, freedom from incumbrances and quiet enjoyment. These 
 covenants are personal and do not pass to the assignee. (<S'ee 
 4 Kent Com. 459.) The last is the only one of which this 
 complainant (who is not an original 'purchaser) can avail him- 
 self of. First, If this be broken, the remedy is by action of 
 covenant at laic. Second, There is no breach of it for the 
 original agreement provided for the possession of the lots by 
 Jones and his tenants until February 1, 1839. 
 
 II. The second point appears to be in reference to the mort- 
 gage and the proceedings to sell under it. The complainant 
 seeks to enjoin the sale on these grounds: i^/rsf, He avers that 
 he tendered the amount which he was liable to pay on the mort- 
 gage. 
 
 To this we reply: 
 
 1. The answer of Jones denies the tender. 2. Admitting 
 the averment of the bill to be true, the tender was iusufiicient: 
 
 First, Because it was not of the whole amount due. 
 
 Second, Because it was only conditional, and required from 
 Jones before he could avail himself of it, the relinquishment
 
 54 CASES IN CHANCERY. 
 
 First circuit, ^f the posscssiou, which by the very terms of sale he was en- 
 Disbrow titled to retain. 
 
 Jones. Third, Complainant also sets up the imperfection of the ori- 
 
 ginal mortgage. As to two of the parties there is but one sub- 
 scribing witness. 
 
 We answer: 
 
 First, The officer who took the acknowledgment is to be 
 considered a subscribing witness. 
 
 Second, The defect, if any, is a mere formal one, and will 
 be disregarded by a court of equity. 
 
 Thii-d, The complainant is estopped by his own acts. 
 
 Fourth, The complainant objects to the sale of the ivhole lot 
 for a single instalment. 
 
 The answer is — the lot is incapable of division without loss. 
 
 Under such circumstances, the court will not interfere, ex- 
 cept to compel a sale according to the provisions of the statute 
 regulating sales on foreclosures in equity. Laws of Michigan 
 of 1833, j^age 301. 
 
 This confines the whole matter to the following grounds: 
 
 I. The obligation of Jones to re-build, and the right of the 
 complainant to call upon him at this time and in this way. 
 
 We admit, (for the sake of this argument,) that Jones is 
 bound to re-build. What then ? He is the landlord for two 
 years yet. Whiting alone can complain of his failure to build; 
 and, until the two years have expired, Disbrow can have no 
 action or claim against him, under these circumstances. And 
 in the absence of any averments impeaching the solvency and 
 responsibility of Jones, what possible ground is there for the 
 interposition of a court of equity at this time. 
 
 II. The right of the complainant to the insurance money. 
 What right has he'? We insist, first, that insurance is a 
 personal contract for the benefit of the party assured; second, 
 that it does not attach to the reality or in any manner go 
 with the same as incident thereto; third, that no equity at- 
 taches upon the proceeds of policies in favor of third persons, 
 unless there be some contract or agreement or trust to that 
 effect. 3 Bos. P. C, 497; 12 JVb. of Law Library, 72; 2 .^th,
 
 CASES IN CHANCERY. 55 
 
 557; 3 Ves., 472; 18 Ves., 114; 12 J^o. of Law Journal, 81, firsicircuu. 
 82; 10 Pe^, 513; 1 HaU's Rep., 45. Disbrow 
 
 It is immaterial, for the purpose of this argument, whether jomj. 
 Jones or Whiting has the right to the proceeds of the policy; 
 either of them had an insurable interest at the time of efiecting 
 the insurance. (9 Wend. Rep., 404.) Eitlier of them liad an 
 interst at the time of the fire, sufficient to entitle him to pay- 
 ment of the damages sustained by it. 
 
 WooDBRiDGE and Backus opposed the motion, 
 
 * 
 
 The Chancellor. — In the argument of this motion, it has 
 been urged on the part of the complainant, that Jones, having 
 put it in the power of his vendees to commit a fraud upon the 
 complainants, he is responsible for the consequences. 
 
 I am unable to sec any thing in this case to authorize this 
 position in the argument. There is no showing that goes to 
 charge Jones with fraud. 
 
 At the time of the execution and delivery of the conveyance 
 by Jones, to Thompson and others. Whiting was in possession 
 and occupied the premises under the lease from Jones, and the 
 vendees all knew that fact. Whiting was applied to, at the 
 same time, to learn whether he wished or intended to occupy 
 the premises the full term to which the lease had been extended, 
 (to February 1, 1839,) and he replied that he did, and this fact 
 was also communicated to the vendees of Jones. 
 
 There is, therefore, not only the absence of fraud on the 
 part of Jones, in this respect, but Whiting's right to occupy 
 formed the subject of a positive agreement between Jones and 
 his vendees. 
 
 The deed by Jones, the bond and mortgage on the premises 
 by his vendees, and an instrument or agreement reciting and 
 recognizing Whiting's unexpired term, and his right to occupy 
 under the lease, signed by all the vendees, were all executed 
 and delivered at the same time; each of these instruments, 
 therefore, must be regarded as a part of, and as constituting 
 one and the same transaction. The vendees of .Tones have 
 
 * Woodbridgc and Backus have furnished the reporter with no brief* on this motion.
 
 56 . CASES IN CHANCERY. 
 
 First Circuit, jjothing to complain of, for Whiting was in possession when 
 
 "^"^^^iC^ they purchased, and their right to possession was subject, by 
 
 Jones, agreement, to his unexpired term. Disbrow, th? complainant, 
 
 was not an original purchaser from Jones, but derived his title 
 
 throurrh the vendees of Jones, and clearly they could convey 
 
 no greater interest than that which they themselves had in the 
 
 premises. 
 
 Whiting was also in possession, and occupied the premises at 
 the time of Disbrow's purchase from Thompson, and Disbrow 
 knew that fact, as he admits in his bill, and there is no princi- 
 ple better settled than that the possession of a tenant is notice 
 to a purchaser of the actual interest the tenant may have in 
 the premises. Chesterman vs. Gardner, 5 John, Cfi., 29; Dan- 
 iels vs. Davison, 16, Ves., 249; Taijlor vs. Stibbert, 2 Ves., 
 437. 
 
 In the case in 4 Hen ^' Munf, 120, which has been cited by 
 the complainant, it does not appear that the purchaser had no- 
 tice that Bibb was in possession before he received the first 
 deed, of February 11, 1790, and this fact, on a careful exami- 
 nation of the case, will be found to form the basis of that de- 
 cision, la the case of Grimstone vs. Carter, 3 Paige, 439, I 
 have been able to find nothing conflicting with the rule above 
 stated, but on the contrary, chancellor Walworth says, in that 
 case, that it is the settled law of the land that the possession of 
 premises by a third person is sufficient to put purchasers on in- 
 quiry, and to deprive them of the defence of bona fide pur- 
 chasers, without notice of his rights. 
 
 From the answers of Jones and Whiting in this case, it is 
 clearly to be inferred that Disbrow had, at the time of his pur- 
 chase, not only notice of the existence and substance, but also 
 of the details of Whiting's lease. 
 
 It is, therefore, clear to my mind, that when Disbrow pur- 
 chased the premises of Thompson, he took them not only sub- 
 ject to the mortgage, but also to Whiting's term under the 
 
 lease. 
 
 It is also insisted by the complainant, that the mortgage is 
 defective, there being but one witness to the execution of it
 
 CASES IN CHANCERY. 57 
 
 by Garrett and N. J. Brown. To this allegation the defend- ^^^^^l^il^' 
 ants answer, that the officer who took the acknowledgment Disbrow 
 
 re. 
 
 must be considered a subscribing witness. It is not necessary Jo"cs. 
 now to decide how far the execution of the mortgage may be 
 considered in compliance with the statute, for if the mortgage 
 were defectively executed in this respect, it could form no 
 ground in the present case for the interference of this court. 
 
 The complainant has recognized tiiis mortgage in his pur- 
 chase, and there is no pretence that the money is not due. 
 
 The tender alledged in the bill is not supported by any other 
 evidence, and is positively denied in the answer. 
 
 That the whole of the premises arc advertised to be sold 
 for the first instalment due on the mortgage, furnishes no ground 
 for the inteference of this court, as it is shown by the answer, 
 that the premises are valuable principally for a wharf and 
 storehouse, and the whole premises have heretofore been used 
 and occupied for that purpose, and cannot be sold separately 
 without injury to the whole. 
 
 After a careful examination of the whole matter, I have been 
 irresistibly led to the conclusion that the case does not justify 
 an interference with the policy of insurance. 
 
 The insurance is a personal contract, and does not pass with 
 the title of the property insured. This doctrine is clearly 
 laid down in Ellis on Insurance, page 72. The language 
 of lord chancellor King is there quoted, and he says, in refe- 
 rence to policies of insurance: " these policies are not insuran- 
 ces of the specific things mentioned to be insured, nor do such 
 insurances attach on the reality, or in any manner go wuth the 
 same as incident thereto, by any conveyance or assignment, 
 but they are only special agreements with the persons insuring 
 against such loss or damage as they may sustain." This doc- 
 trine is fully recognized, and stated to be the true one in the 
 Saddlers' company, vs. Badcock, 2 Atk., 554, and in 1 Philips 
 on Insurance, 27. 
 
 All the decisions I have been able to find conflicting with 
 this principle, arise under the builders' act statute of 14 Geo. 
 III., which empowers the governors or directors of the insurance 
 Vol. I. 8
 
 58 CASES IN CHANCERY. 
 
 Firatcireuit. offices within Certain districts, upon the request of any persons 
 Disbrow interested in, or entitled to any houses or buildings which may 
 Jones, be burned dov,^n, &c., or upon any grounds of suspicion that 
 the person insured has been guilty of fraud or wilfully setting 
 the houses or buildings on fire, to cause the insurance money 
 to be laid out, as far as the same will go, towards re-building 
 or repairing the property damaged, &c. Although, therefore, 
 a policy as a personal contract does not pass with the property 
 insured, yet a covenant to insure to a certain amount, entered 
 into by a lessee or other person having an estate in land, is so 
 far beneficial to the property, that in cases to which this sta- 
 tute applies, it will run with the land, and an assignee entitled 
 to the benefits of covenants real, may maintain an action on 
 the covenant to insure, if it be not observed. Hughes on In- 
 surance, 892. 
 
 The case of Vernon vs. Smith, 5 Barn. ^ Md. 1, was a case 
 arising under the statute of 14 Geo. III., and the views expres- 
 sed by Best, J., in that case, have not the authority of a decision, 
 and the reasons upon which those views were based, do not 
 exist here. 
 
 If Jones had no remaining interest or liabilities, the case 
 would present a different aspect. But if the views heretofore 
 taken are correct, that the execution and delivery of the deed, 
 bond and mortgage and agreement, were all at the same time, 
 and formed parts of one and the same transaction, and that Dis- 
 brow had legal notice of the existence of the lease, it follows 
 that both Whiting and Jones had an insurable interest. Jones is 
 bound to pay $1,400 per year for the two years, and is bound 
 by his contract with Whiting, to re-build in six months, and 
 Whiting is to pay rent for the two years. 
 
 Wiiether the doctrine of Best in 5 Barn, and Aid., be cor- 
 rect or not, it would be going further than any case I have 
 been able to find, to interfere by injunction in cases like the 
 present. The legal rights of the parties should be carefully 
 guarded, and seldom interferred with by injunction. 
 
 As to whether Jones may not be compelled to apply the in- 
 surance money, at or before the expiration of Whiting's term,
 
 CASES IN CHANCERY. 50 
 
 need not now be decided. The dissolution of this injunction ^^^^^li^Jl^- 
 does not prevent Disbrow's recovery of Jones, if he is Uable D.shrow 
 to him for any portion of the insurance money; and there is Joncs. 
 no allegation in the bill that Jones is insolvent or unable to 
 pay any amount which may be recovered against him. 
 
 Upon the whole then, Joncs seems to have acted fairly, so 
 far at least as regards the sale to his vendees. All of the 
 facts in relation to the premises, were at that time disclosed 
 by J^nes, and Whiting's right to occupy under the lease, was 
 made the subject matter of a positive agreement between Jones 
 and his vendees. 
 
 Whiting continued to occupy and was in possession when 
 Disbrow purchased from Thompson, and Disbrow knew that 
 fact, and this the law regards as notice to him of Whiting's 
 rights in the premises. 
 
 If a fraud has been practiced upon the complainant at all, it 
 is by his immediate vendees, and as against them he has an ade- 
 quate remedy. 
 
 Jones is, therefore, clearly entitled to his remedy to collect 
 his money which is due; he has not been in fault, and it would 
 be unjust to restrain him from doing so. Jones and Whiting 
 had an insurable interest to more than the amount insured, and 
 they have earned the benefits to be derived from the policy, 
 for they have paid the premium on the insurance. 
 
 Some other points have been made in the argument, and they 
 have all been carefully considered, and I have been iz'resistibly 
 lead to the conclusion, above stated. 
 
 This case may be like the case in the 3 of Paige's Reports, 
 ti hard one; but this court is bound by the rules of law, and 
 whenever courts shall undertake to judge according to the con- 
 venience of parties in each case, there is an end to all fixed 
 and settled rules, and the rights of parties will be left to the 
 caprice of whomsoever may occupy the seats of justice at the 
 time. The injunction in this case must be dissolved. 
 
 Injunction dissolved.
 
 60 CASES IN CHANCERY. 
 
 First Circuit. 
 
 Goff 
 
 vs. 
 
 Thompson, ^^^j^qj^ Goff and others, vs. John Thompson and oth- 
 ers. 
 
 Wliere a father executed a deei to Iiis daugli'.er, and tlie daughter and her husband agreed to 
 support and maintain the grantor during his natural life, and several months afterwards, the 
 grantor having died, and the daughter and her husband having performed their agreement 
 upon a bill filed to set aside the deed, to give elfcct to a will previously made by the grantor, 
 it was held that the consideration upon which the deed was given, was a good and valid con- 
 sideration, and that the deed would not be set aside, though the daughter had executed a deed 
 rc-conveying the land to her father, as security for his support, the deed from tlie daughter 
 to the ftuher, having been cancelled or lost by the father. 
 
 A deed executed by a. feme covert, without her husband joining with her, is void. 
 
 The bill in this case, was filed, January 12, 1836, by Aaron 
 GofF and Elscy, his wife, Elial Todd and Polly, his wife, and 
 Mica Mudge, and Martha, his wife, against John Thompson, 
 and Diana, his wife, and Carson McCurdy, and stated that Ri- 
 chard McCurdy, (who was father of said Elsey, Polly, Mar- 
 tha, Diana and Carson,) was, in his life time, seized and pos- 
 sessed in fee, of the south-west quarter of section twenty, in 
 township two south, of range ten east, in the county of Wayne, 
 and May 30, 1833, made his will, whereby he bequeathed to 
 his son Carson, the west half of said quarter section, and to 
 the said Elsey, Polly, Martha and Diana, the remaining half 
 of said quarter section; that some time after making the said 
 will, an arrangement was made between said Richard and his 
 son Carson, that said Richard should convey to him immedi- 
 ately the provision intended for him by the will; that Septem- 
 ber 9, 1834, Richard accordingly deeded the portion given by 
 the will to Carson; the consideration stated in the deed was 
 $2,000. The deed was recorded September 10, 1834. The 
 bill stated that no part of the consideration money mentioned 
 in the deed, was ever in fact paid, but that the deed was a 
 mere voluntary conveyance, intended to operate as in full of 
 the bequest, and in full of his share of the real estate of said 
 Richard; that said Richard omitted to make any alteration in 
 his will, or take any release in behalf of his other children,
 
 ison. 
 
 CASES IN CHANCERY. 61 
 
 from said Carson to his share of the property under the will; f'^'Cireui'- 
 that said Richard, during his life time, resided with his daugh- co/r 
 tor, Diana, and John Thompson, her husband, and some time Thomji 
 after the execution of said deed, said Richard had some difl]- 
 culty with his son Carson, in the course of which he struck or 
 beat said Carson; that a short time afterwards said Carson 
 threatened to commence, and did actually commence legal pro- 
 ceedings against said Richard; that he became alarmed, and 
 his fears were excited, and his apprehensions increased by the 
 representations of said Diana and John Thompson, with whom 
 he was then residing; that said Richard was much infirm, and 
 advanced in years; that said Diana and John, persuaded said 
 Richard that his quarrel with his son Carson, would be his ruin; 
 that Carson would strip him of all his property, and the only 
 way for him to protect himself and save Iiis property, would be 
 for him to vest it in the name of some other person, and that by 
 these and other persuasions continually kept up, they so worked 
 upon the fears of the old man as to induce him to make a con- 
 veyance of all the remainder of his land to his daughter Dia- 
 na Thompson, on or about the 27th day of September, 1834, 
 for the pretended consideration of six hundred dollars; the bill 
 charged that there was no consideration actually paid, and 
 that the deed was procured by artifice and fraud; and that at 
 the time of the execution of the deed, it was the express un- 
 derstanding between said Diana and her husband, and said 
 Richard; that so soon as said Richard's difficulties with said 
 Carson should be arrranged, the deed should be cancelled, and 
 the land re-conveyed; that the deed from said Richard to said 
 Diana, was not delivered, and that said Richard did not intend 
 to deliver the same or have it recorded, unless he was driven 
 to extremities by his son Carson's course of proceeding; that 
 he put the deed in his trunk for safe keeping; that it was sub- 
 sequently abstracted from his trunk, and put on record in the 
 office of the register of deeds in the county of Wayne, Octo- 
 ber 1, 1834. 
 
 The bill further stated, that the said Richard was not only 
 old, and removed from access on the part of his other chil-
 
 63 CASES IN CHANCERY. 
 
 First Circuit, drcn, but also ignorant, and unable to write or sign his name; 
 
 (jr.ft- and that when the deed was brought to a justice to be acknowl- 
 
 Thompson. edged, it bore his mark, previously placed there by the said 
 
 Dianna and John, or one of them, and a memorandum was made 
 
 on the deed to that effect. 
 
 The bill charged that the deed was never read over to said 
 Richard, or its contents explained, before he signed the same; 
 and that his mark was placed on' the deed before the wit- 
 nesses were called, and not in their presence, and that said 
 Richard never acknowledged the same in the presence of the 
 subscribing witness; that in the month of December following, 
 when a final settlement and adjustment of all difficulties be- 
 tween said Richard and Carson was about to take place, said 
 Richard learned, for the Jirst time, that the deed had been re- 
 corded, and that said Richard, in fact, did not know whether 
 the paper executed was a deed or bill of sale; that said Rich- 
 ard became very uneasy on the subject, and threatened to 
 leave the house of said Diana and John Thompson, and have 
 recourse to legal proceedings to set aside the said deed, aliedg- 
 ing the same to have been fraudulently obtained; that said 
 Diana finally consented to re-convey the said lands to said 
 Richard; that about the middle of December, 1834, she did 
 actually execute and acknowledge, in due form of law, a deed 
 of conveyance, re-conveying said land to said Richard; that 
 her said husband did not join with her in said deed; and 
 said Richard being an old and ignorant man, did not know it 
 was necessary for her said husband to join with her in said 
 conveyance, as he, the said Richard, had conveyed to said 
 Diana alone, and accepted her conveyance; that early in the 
 month of September following, said Richard died at the house 
 of said Diana and John Thompson. 
 
 The bill also charged that the last mentioned deed had been 
 abstracted from the trunk of said Richard, and at his death 
 was not to be found. It also stated that the will of said Rich- 
 ard was duly proved, and probate thereof granted to Elial 
 Todd, November 16, 1835. 
 
 The bill also stated, that when said Richard went to live
 
 CASES IN CHANCERY. 6» 
 
 with defendants, Diana and John, he had about four liundred Firsicircuit. 
 dollars in money and property, which they had used, or still ^g- 
 retained at the death of said Richard. T.;oi"')son. 
 
 The bill prayed that the deed executed September 27, 1834, 
 might be decreed to be void, and be delivered up to be cancel- 
 led, and that an account might be taken, &c., and for an in- 
 junction. 
 
 An injunction was granted, January 14, 1836. 
 
 The answer of John Thompson and Diana, his wife, admit- 
 ted that said Richard was seized of the lands in fee simple, and 
 that a paper was executed by said Richard, purporting to be a 
 last will and testament; denied an}^ knowledge of its provi- 
 sions; admitted also the making of the deed to Carson Mc- 
 Curdy as stated in the bill; admitted that said Richard lived 
 with said defendants, John and Diana, during part of the year 
 of 1834, and from that time up to the time of his death; that 
 there were difficulties between said Richard and Carson, as 
 stated in the bill; denied that said Richard became greatly 
 alarmed at the proceedings against him by said Carson; also, 
 denied that they excited or attempted to excite his fears, as sta- 
 ted in the bill, or that they advised him to convey any of his 
 estate to any person. 
 
 The answer stated that some time before the prosecution was 
 commenced by said Carson, said Richard came to the house of 
 said John and Diana, and told them that he was so illy treated 
 by his other children, and particularly, said Carson, that he 
 could not and would not stay any longer with them, and that 
 if his daughter Diana would not take his property and support 
 him, he would give it to some one who would take it and sup- 
 port him; that said Richard repeatedly solicited said John and 
 Diana to take his property and support him during his life; that 
 at the urgent solicitations of said Richard, said defendants left 
 a good situation and profitable business in the city of Detroit, 
 and moved on to the land of said Richard, which was then 
 nearly wild and uncultivated, and of but little value. 
 
 That at the urgent request of said Richard, they took him 
 into their family to live permanently with them for the remain-
 
 G4 CASES IN CHANCERY. 
 
 First circuit, der of his life; and without any solicitation or suggestion on 
 """^"■"^^ the part of the defendants, he voluntarily proposed to convey 
 Thompson. ^0 hls Said daughter, Diana, the tract of land described in the 
 bill, on the condition and for the actual consideration that the 
 defendants, John and Diana, would pay certain small debts 
 which he then owed, and they should take him into their fa- 
 mily and provide for him the necessaries and comforts of life 
 during his life time; that about September 27, 1834, at the re- 
 quest and solicitation of said Richard, said John prepared a 
 deed of the said land to said Diana, and the same was subse- 
 quently executed, signed, sealed, acknowledged and delivered 
 in presence of the subscribing witnesses; that said deed, be- 
 fore it was executed, was read over and explained to said 
 Richard; that there was never any otiier understanding or 
 agreement, express or implied, than that the defendants were 
 to have the land in consideration that they should provide for, 
 maintain and support said Richard during his natural life, which 
 promises and agreements, the answer alledged, the defendants 
 had faithfully performed, fulfilled and kept. 
 
 That the deed was recorded with the full knowledge and 
 consent of said Richard, and was never put away by said 
 Richard, in his trunk, as alledged in the bill; but that the same 
 remained in the hands and under the control of the defendants 
 from the time of its delivery up to the time of the filing the bill, 
 and that the agreement to support said Richard during his life, 
 and the conveyance, were bona fide transactions. 
 
 The answer denied that said Richard was removed from ac- 
 cess to his children, or any other persons; admitted that he 
 was old and infirm of body, but stated that he had a sound 
 mind, fully capable of appreciating the conduct towards him of 
 his children and others. Admitted he was an illiterate man, 
 unable to write, and stated that his mark was affixed to said 
 deed by the justice who took the acknowledgment, or by some 
 other disinterested person in the presence, and by the direction 
 or request of said Richard. 
 
 Denied that said Richard ever expressed uneasiness on ac- 
 count of said deed having been made to said Diana, and threat-
 
 CASES IN CHANCERY. 65 
 
 ened to leave the house and have recourse to legal proceed- First circuit. 
 ing to set aside said deed. ^^^j. 
 
 Stated that Elial Todd, one of the complainants, about Sep- Tiio"i)9on. 
 tember 3, 1834, set up a false and unfounded claim, and com- 
 menced a suit at law against John Thompson, one of the de- 
 fendants, and boasted that he would soon obtain a judgment 
 for a large amount, and that he would sell the land which said 
 Richard had conveyed to Diana, on the execution, and from 
 other false and fraudulent representations, said Todd induced 
 said Richard to fear that the provision he had made for his sup- 
 port in his old age, would all be taken away by said Todd, and 
 he so expressed his fears to the defendants, and intimated a 
 wish that said Diana would make out a deed to him of said 
 land, merely and for the sole purpose of preventing its being 
 taken and sold upon execution, if Todd should recover a judg- 
 ment, and to keep sure his own support; and that said Richard 
 stated, at the same time, it should make no difference; that said 
 Diana should have the land; that he only wanted the deed to 
 keep his son-in-law, Todd, from turning him out of doors, and 
 to keep his other children easy. 
 
 That, with the aforesaid understanding, said Diana did exe- 
 cute, acknowledge and deliver to said Richard, a deed of said 
 land; but said John refused to execute the said deed, and was 
 not present when the same was executed by said Diana. 
 
 That it was the express understanding at the time of exe- 
 cuting said deed, that it should never operate against said de- 
 fendants; that it was then delivered to said Richard, and de- 
 fendants had never seen it since that time, and did not know 
 where it was or what had become of it; that defendants had 
 good reason to believe said Richard, in his life time, destroyed 
 it, on ascertaining Todd had no well founded claim against said 
 John Thompson; that said Richard was taken sick about the 
 last of August, and continued until about the first of Novem- 
 ber, when he died at the house of defendants. 
 
 Denies that said Richard brought personal properly and mo- 
 ney to the house of defendants, which they had used up, to the 
 amount of $400, but admits that he brought cows, pigs, &c., 
 Vol. I.
 
 Goff 
 
 vs. 
 
 Thompson. 
 
 6g CASES IN CHANCERY. 
 
 Firstcircuit. to the amount of about #100, which he gave to his daughter, 
 Diana. 
 
 That since defendants had been on said land, they had made 
 considerable improvement; that defendants had been put to 
 considerable trouble and expense in attending said Richard in 
 his last sickness; paying doctor's bills and defraying the ex- 
 penses of his funeral, and for clothing when he was in health, 
 and that defendants had paid several of his small debts, but to 
 what exact amount they did not know. Denies all combina- 
 tion, &c., and intent to deceive or defraud. 
 
 The case was submitted on bill and answer. 
 
 A. D. Frazer, solicitor for complainants. 
 
 B. F. H. WiTHERELL, solicitor for defendants. 
 
 The Chancellor. — The consideration for the deed from 
 Richard McCurdy to Diana Thompson was a good and suffi- 
 cient consideration; and the condition having been performed, 
 there can be no doubt that the title of the defendants, John 
 Thompson and wife, to the land in question, is good. 
 
 The conduct of the defendants, John and Diana Thompson, 
 seems to have been not only just, but meritorious. 
 
 The deed from Diana Thompson to Richard McCurdy, is 
 stated in the answer to have been executed as security merely, 
 and having been destroyed or cancelled by the grantee, in pur- 
 suance of the agreement of the parties, cannot form the foun- 
 dation of any claim of the present complainants. That deed 
 was also void in itself, it having been executed by a feme covert 
 without her husband's joining with her. (See Sexton vs. Pick- 
 ering, 3 Rand. R., 468.) 
 
 No relief is prayed against Carson McCurdy, the other de- 
 fendant. 
 
 The bill must be dismissed with costs. 
 
 Bill dismissed.
 
 CASES IN CHANCERY. ^ 
 
 John Bt. Bomier vs. Thomas Caldwell. 
 
 When it appeared that A. agreed to purchase of B. a certain tract of land and pay #150 fortlie pj^^j Circuit 
 Bame; that at the lime of the agreement, A. paid B. $S0; tliat B. survejcd tlie land and put 
 A. in possession ; that A. had resided on tlie land for several years, and made improvements 
 to the value of from ©200 to ©500 ; held that these were such acts of part performance as to 
 take the case out of the statute of frauds, and to authorize u decree for a specific perfor- 
 mance to convey, upon payment of the balance of the purchase money with interest. 
 
 The bill in this case was filed for a specific performance of a 
 parole contract to convey land. 
 
 The bill states that some time in the year 1830, the com- 
 plainant and defendant entered into an agreement, in and by 
 which agreement the defendant sold to the complainant a cer- 
 tain tract of land situated on Otter creek, in the county of 
 Monroe, being three arpents in front and twenty-five in depth, 
 in consideration of which, the complainant was to pay $150; 
 $80 of this sum was to be paid immediately in cattle, and the 
 balance in the three years thereafter; that it was understood by 
 the parties that if the complainant found it inconvenient to pay 
 the balance in three years, that then, and in such case, the said 
 defendant was to give further time, and would receive, instead 
 of money, cattle or grain, as might suit the convenience of the 
 complainant. 
 
 The bill further states, that the agreement was not reduced 
 to writing, the complainant having full confidence in the integ- 
 rity of the defendant; that the defendant caused a survey of 
 the land in question to be made, and put the complainant in the 
 full possession thereof, which possession the complainant has 
 ever since held, and paid the taxes thereon; that the complain- 
 ant pursuant to said agreement, did deliver to the defendant, 
 cattle valued at f80; that on the 10th day of July, 1835, the 
 complainant tendered to the defendant, the sum of $94 50, be- 
 ing the balance of the consideration money and interest, which 
 he refused to accept. 
 
 The answer denies making the agreement set out in the bill, 
 but admits that an agreement was made, in substance, as follows:
 
 68 CASES IN CHANCERY. 
 
 First circuit. The defendant agreed to sell the land in question, to the 
 complainant, for the sum of either three or two dollars per 
 acre; the defendant further admits, that he does not recollect 
 whether the complainant was to pay two or three dollars per 
 acre; and further, that the defendant was to receive $80 in 
 cattle from the complainant, in part payment, upon the delivery 
 of possession of said land; the defendant further states, that 
 the complainant further agreed to deliver to the defendant du- 
 ring the fall next succeeding, a certain yoke of oxen as a 
 further payment, and the balance in three years, with interest, 
 and also to pay the taxes on said land, and on two other tracts 
 which the defendant owned. 
 
 The defendant denies that he agreed to give further time af- 
 ter the expiration of said three years, to pay the balance of the 
 consideration money, should the complainant find it inconve- 
 nient to pay such balance, or receive grain instead of money, 
 or any other cattle than the yoke of oxen which the defen- 
 dant avers the complainant was to deliver in the fall; the de- 
 fendant further states, that it was understood betw^een the par- 
 ties, that a bond for a deed was to be given to the complainant 
 upon receiving the said yoke of oxen, and a deed upon the 
 payment of the whole amount agreed to be paid. 
 
 The defendant admits that in the fall of 1835, the complain- 
 ant called upon him, and said that he was ready to pay the 
 amount due for the purchase of the said tract of land. &c., and 
 further, admits that the complainant asked him, the defendant, 
 to receive the balance due, which the complainant said he then 
 had in money, &c. 
 
 Whipple and Vandyke, for complainant. 
 F. Johnson, for defendant. 
 
 The Chancellor. — From the testimony, there can be no 
 doubt that the agreement between the parties was substantial- 
 ly as stated in the bill. 
 
 By the testimony in the case, it appears that the price to be 
 paid by the complainant for the land was $150; that $80 was
 
 CASES IN CHANCERY. 0» 
 
 paid down, leaving only a balance of $70 due; that the land ^'"*^"="''- 
 was surveyed by defendant, and that he put the complainant in nomier 
 possession. It further appears the complainant has resided on CaWweii. 
 the land ever since, and that he has built an addition to the 
 house; has cleared, fenced and improved some twenty-five 
 acres of land, and set out an orchard. The improvements are 
 estimated by the witnesses from $"200 to 8500. 
 
 The payment of so considerable a portion of the purchase 
 money; the being placed in possession by the defendant, and 
 the long occupation by the complainant, and valuable improve- 
 ments made by him on the premises, arc such acts of part per- 
 formance as to take the case out of the statute of frauds. 
 
 It is next to be considered whether there has been such a 
 neglect to perform the conditions of the contract, on the part 
 of the complainant, as to preclude him from relief in this court. 
 
 There is some discrepancy between the answer and the tes- 
 timony as to what the precise terms of the agreement were. 
 
 The witnesses Lavigne and Antaillaird, both state that the 
 agreement was, that after the payment of 880, the defendant 
 was to give the complainant three years to pay the ■ balance, 
 anfl that if the defendant was not then able to pay, he would 
 give liim a longer time and would not trouble him. The de- 
 fendant, in his ansW'cr, says the complainant was to have deli- 
 vered to him another yoke of oxen in the fall, and that then he 
 was to have three years to pay the balance. He further says, 
 his object in selling the land was to obtain the oxen in the fall, 
 and also because he should want money at the end of three 
 years. 
 
 It is conclusively established that the price to be paid for 
 the land was $150, and that $80 was paid down, and that the 
 balance due was but $70. Now if the oxen had been deliver- 
 ed in the fall, at $50, there would have been but $aO remain- 
 ing. 
 
 It seems somewhat strange that the defendant, (who is a man 
 of wealth, as appears,) should let either the one or the other 
 of these objects form the inducement to the sale. 
 
 From a view of the whole case, I am led to the conclusion
 
 70 CASES IN CHANCERY. 
 
 Firstcircuit. tj^^t this matter of the delivery of the oxen in the fall did not 
 T-,.,„v. form anv part of the orisinal contract, and that this matter is 
 Caldwell, improperly blended with the agreement set up in the answer. 
 It seems incredible that three years' time should have been gi- 
 ven to pay the $20, with the assurance that, if it should be- 
 come necessarv, the time should be further extended. 
 
 The defendant states in his answer, that he does not re- 
 member whether the price of the land was $150 or $225. 
 Now, if he cannot remember what the price of the land 
 was, it may be presumed, without any imputation of inten- 
 tional misstatement, that he may have, so far, at least, for- 
 gotten its details as to have mingled that which was a matter 
 of subsequent conversation, with the original agreement. Three 
 witnesses concur in their statements with regard to the price 
 to be paid for the land, and as to the terms of agreement be- 
 tween the parties, and this statement of the agreement which 
 is given by the witnesses, was made by the parties about the 
 time the same was made, and when it was fresh in the recol- 
 lection of both the complainant and the defendant. The terms 
 of the agreement were simple and easily understood, and the 
 witnessess all'concur that $150 was to be paid for the land, ^80 
 of which paid down; the balance to be paid within three years; 
 that the complainant stated at the same time that from the rela- 
 tion which existed between him and defendant, that if defendant 
 could not pay him the balance at the end of the three years, 
 that he would not trouble the defendant, but would give him 
 further time. Can this be reconciled at all with the fact that the 
 balance was only $20 ? There can be but little doubt that the 
 witnesses state the contract correctly, and that this agreement 
 to deliver the cattle in the fall, and to pay taxes, was in pur- 
 suance of the agreement that the defendant would receive cat- 
 tle or grain for the balance. This is perfectly consistent with 
 the conversation between the complainant and the defendant, 
 mentioned by Le Due, in his testimony, and in no other way 
 can the whole of the testimony be reconciled. 
 
 When the defendant said to the complainant, you did not 
 bring the oxen, the complainant replied, by way of apology,
 
 CASES IN CHANCERY. 71 
 
 that one of them had died; and this conversation is perfectly FirstCireuit. 
 consistent with the testimony of the three witnesses first na- ^-^''^^"^^ 
 med. In their statement of the agreement, thei*e appears to ^ ,?»• „ 
 
 " 7 ri Caldwell. 
 
 have been no condition that the complainant was to deliver to 
 the defendant a pair of oxen, as stated in the answer. This 
 must have been a matter of a subsequent conversation, and in 
 no other way can it be reconciled, either with the testimony 
 or the other facts in the case. 
 
 But even supposing this condition had made a part of the 
 original agreement under the facts in the case, this court would 
 hesitate much before it would refuse relief to the complainant. 
 
 Here the excuse for the non-delivery of the oxen, was, that 
 one of the oxen died before the time they were to have been 
 delivered; the defendant permitted the complainant to remain 
 in possession, without taking any steps to rescind the agree- 
 ment, until 1835, and permitted him to go on uninterrupted to 
 make valuable and permanent improvements on the premises. 
 This case, in itself, is not of great importance, but it is impor- 
 tant to the complainant, as it involves the labor of many years. 
 
 I cannot well conceive of a case which would call more 
 strongly upon the court to decree a specific performance of a 
 contract, on the ground of part performance, than this;(l) the 
 tender on the part of the complainant was sufficient under the 
 circumstances. It was an offer to pay the balance, which was 
 refused by the defendant. 
 
 The complainant must have a decree for a specific perfor- 
 mance, upon payment of the balance due, with interest. 
 
 (1) See Burteh vs. Iloggc, ante 31, and notes 1 and 2.
 
 7a CASES IN CHANCERY. 
 
 FirstGircuu. David Cooper and Charles Jackson vs. Hiram Al- 
 
 "^"^^^^ DEN and others, Commissioners of Internal Im- 
 
 Aiden. provement, and Mayor, &c., of the city of Detroit. 
 
 An injunction granted by a justice of the supreme court in cases where the statute authorizes 
 it, stands upon the sanie footing as if granted by the chancellor, and in either case it is com- 
 petent for the defendants in vacation, and before they put in their answer, to move lo dissolve 
 the injimction for want of equity in the bill. 
 
 Purchasers of lots in the city of Detroit acquire no other or greater rights from the fact that 
 said city was laid out by the governor and judges of the late territory of Michigan, under 
 an act of Congress authorizing them so to do, than they would acquire if the same had been 
 laid out by an individual who had legally dedicated certain portions for streets and alleys. 
 
 Purchasers of lots bounded on a street or square, acquire a right, and are interested in the 
 preservation and appropriation of such street or square to the uses for which it was dedica- 
 ted, and the city corporation, without full and express authority so to do, have no power to 
 grant any portion of such public street or square to be used for any purpose destructive of 
 the ends for which it was originally dedicated. 
 
 Where land is dedicated to a particular purpose, and the city authorities have appropriated it 
 to an entirely different one, it affords ground for the interference of a court of chancery, by 
 injunction. 
 
 The corporation of the city of Detroit have no power except that which is derived from the 
 act incorporating the same, or the acts sj)ecially relating thereto. 
 
 Where the common council of the city of Detroit granted a lease of a portion of a public 
 street in said city, (though under a resolution of a public meeting of the freemen of the 
 city of Detroit,) to the commissioners of internal improvement, for the use of the state, 
 to lay a railroad track and erect offices, ifcc, upon, an injunction was granted to restrain 
 the commissioners from so doing. 
 
 The commissioners of Internal improvement have no right, under the general powers con- 
 ferred on them, lo appropriate a portion of a street in the city of Detroit for the purpose of 
 erecting offices and other buildings thereon. 
 
 This court has undoubted jurisdiction lo interfere by injunction where public officers are pro- 
 ceeding illegally and improperly, under a claim of right lo do any act to the injury of the 
 rights of others. 
 
 The bill in this case was filed September 20, 1838, and sta- 
 ted that complainant, Jackson, was the owner in fee of the 
 west half of lot number 43, and that Cooper, complainant, was 
 the owner in fee of the east half of said lot, and also the en- 
 tire lot 42, both of said lots being in section six, of the city of 
 Detroit, according to the plan of the city, made and adopted 
 by the governor and judges of the late territory of Michigan, 
 })ursuant to the provisions of an act of congress for that pur- 
 pose.
 
 CASES IJN CHAiNCEKi:. 73 
 
 That said lots were situated adjoining and fronting on a pub- First circujt. 
 lie street called Michigan grand avenue, 200 feet %vide; that ^^^^^^ 
 said street was laid out and established as a public street and ^^^^n, 
 open space, not only for the free and uninterrupted use of all 
 the citizens as a street, but for the ornament of said city, and 
 more especially for the convenience, benefit, use and healthful- 
 ness of the lots adjacent to, and situated on said avenue. That 
 complainants, and those through and under whom they claim, 
 had been in the full, peaceable, quiet and uninterrupted posses- 
 sion of said lots, and of said avenue, as an easement for more 
 than twenty-five years last past; that they gave a much great- 
 er price for the lots than thoy would have done, had they sup- 
 posed they did not acquire a vested right in said avenue, as 
 permanent and indefeasible as in the lots themselves; that they 
 had expended large sums of money in improving said lots; had 
 erected expensive buildings, and actually resided thereon with 
 their families for several years. 
 
 That the mayor, recorder, aldermen, &c., of the city of De- 
 troit, September 4, 1838, executed a lease to the people of the 
 state of Michigan, reciting that, 
 
 ''Whereas, pursuant to a call of the mayor of the city of 
 Detroit, a meeting of the freemen was held at the city hall, 
 in said city, on Thursday the second day of August, A. D. 
 eighteen hundred and thirty-eight : and whereas, after said 
 meeting was duly organized, and the object of the call explain- 
 ed, the following resolution was adopted by said meeting, viz. 
 
 "Resolved, That the common council of said city, be au- 
 thorized to lease to the state of Michigan a space in Michigan 
 grand avenue, between the city hall and Bates street, adjoin- 
 ing Bates street, sixty feet in width and extending one hundred 
 and forty feet towards the city hall, for the purpose of erect- 
 ing a brick building for a depot for passenger cars, and for oth- 
 er purposes connected with the operations of the central rail- 
 road; and, also, the privilege of laying a track or tracks, from 
 the present termination of the railroad, in the most eligible 
 manner to the aforesaid ground between Bates street and the 
 city hall. 
 
 Vol. I. 10
 
 Cooper 
 
 vs. 
 Alden. 
 
 T4 CASESS IN CHANCERY. 
 
 Firstcircuit. " Now, therefore, be it known, that the common council of 
 said city, in obedience to the resolution of the freemen of said 
 city, above recited, so far as they have power and authority 
 under the city charter and amendments thereto, and without 
 the intervention of a jury to assess private damages, and in 
 this manner so to do, do hereby lease to the people of the state 
 of Michigan, all that space of ground in the centre of Michi- 
 gan grand avenue, in said city, between the city hall and Bates 
 street, sixty feet in width on the west side of Bates street, ad- 
 joining said Bates street, and extending one hundred and forty 
 feet towards the city hall, for the purpose of erecting there- 
 upon a brick building to be used as a passenger car house, and 
 for railroad offices, connected with the operations of the Cen- 
 tral railroad only: and the said common council, so far as they 
 have power as aforesaid, do hereby also grant to the people 
 of the state of Michigan, the other privileges in said resolu- 
 tion of the freemen above recited, contained for the purposes 
 therein specified. 
 
 "It beins always understood, however, and these presents 
 are upon these express conditions and not otherwise, viz: 
 
 " That these presents and the privileges and ground hereby 
 granted and leased to the people of the said state, shall con- 
 tinue and be in force so long as said ground and the buildings 
 thereon to be erected, and said privileges shall be used and 
 occupied for the purposes herein before specified and mention- 
 ed, and that as soon as they shall cease to be thus used and oc- 
 cupied, they shall all and singular forthwith revert to the may- 
 or, recorder, aldermen and freemen of the city of Detroit, and 
 these presents from thenceforth, be null and void. 
 
 "And upon the further condition, that no more than one track 
 or railway shall be placed or made across Woodward avenue, 
 from the present termination of the railroad, for the purpose 
 of arriving at said passenger car house: 
 
 "And upon this further condition, that in case the people of 
 said state, or their agents, or the commissioners of the Cen- 
 tral railroad, or the acting commissioner thereof, do not, with- 
 in one month from this date, notify the common council of said
 
 CASES IN CHANCERY. 75 
 
 City of the acceptance of this lease and privileges hereby grant- First circutt. 
 ed, subject to the provisions, conditions and understandino- ^^^^^"^^ 
 
 , . , J . * Cooper 
 
 herein before and herein after contained, or in case the said Jf- 
 people or their agents, or said commissioners or commissioner, 
 or his or their successors in office, do not, witliin the period of one 
 year from and after the date of such notification to said com- 
 mon council, have erected and completed the aforesaid brick 
 building, and in use for the purposes aforesaid; then, and in 
 each of these cases, these presents shall cease, be inoperative, 
 null and void. And these presents are upon this further ex- 
 press condition and understanding, and not otherwise, viz: that 
 the said state of Michigan shall and will, from time to time, 
 and at all times save harmless and keep indemnified said com- 
 mon council, and every member thereof, and the mayor, re- 
 corder, aldermen and freemen of the city of Detroit, of and 
 from all damages, sums of money, costs, charges, troubles, 
 suits and expenses, which they, or any of them, shall or may 
 at any time hereafter be put unto, by being compelled to pay 
 damages, or sums of money to individuals b}^ reason of said 
 common council having executed these presents, or on account 
 of said space of ground and privileges, hereby granted, being 
 used or occupied as aforesaid. In testimony," &c. 
 
 That if said road should be constructed and laid down as 
 contemplated, it would pass along the entire front of complai- 
 nants' dwelling houses and premises, on Michigan grand ave- 
 nue, and near to the same; and that if the building contem- 
 plated by the lease should be erected, it would greatly in- 
 cumber said avenue, and block up and obstruct the free use 
 of the same, and extend across the entire front of said lots, to 
 the great annoyance and damage of complainants. The bill 
 charged that the lease was made without authority; it further 
 stated that the commissioners of internal improvement did, on 
 or about the same day the lease was made, accept the same in 
 behalf of the people of the state of Michigan, and by a resolu- 
 tion of the board, directed the acting commissioner on the cen- 
 tral railroad, to go on and erect the buildings, and lay down 
 the track of the railroad as contemplated in the lease, without
 
 76 CASES IN CHANCERY. 
 
 Firstcircuit. providing any compensation whatever for complainant's dama- 
 """^""^^ ges; that Hiram Alden, the acting commissioner, had em- 
 Jin ployed engineers and other persons, and actually commenced 
 the construction of said road and buildings, and threatened to 
 continue the same; that the necessary grade for said road 
 would elevate the same from one to three feet above the gene- 
 ral level of said avenue. 
 
 The bill prayed an injunction to restrain the commissioners 
 from constructing the road and erecting the buildings, in said 
 Michigan grand avenue, &c. 
 
 Upon proof of the sickness of the chancellor, an injunction 
 was granted, according to the prayer of the bill, by the Hon. 
 George Morell, one of the justices of the supreme court, Sep- 
 tember 20, 183S. 
 
 A motion was now made to dissolve the injunction for want 
 
 of equity in the bill. 
 
 P. MoREY, Attorney General, for defendant Alden. 
 
 1. The complainants do not show such rights as will autho- 
 rize the court to interfere in their behalf by injunction, nor 
 such a case as will sustain a decree. 
 
 2. If the court should be against us on the first point, then 
 we say, that by their own showing in the bill, they have an 
 ample and complete remedy at law for the injury complained 
 of; for if they have rights to sustain this proceeding, they 
 must have sufficient to sustain a suit at law for the trespass; 
 or, if their property is injured, they can appeal to the apprai- 
 sers under the provisions of the 15th section of the act for the 
 regulation of internal improvement, &c., page 197, session 
 laws of 1837. 
 
 3. By the provisions of the 20th section of the act relative 
 to the city of Detroit, approved April 4, 1827, and the 1st sec- 
 tion of an act to amend the same, approved June 29, 1832, 
 the common council are vested with full power and authority 
 " to make or alter'' streets and " generally to do and perform 
 under the by-laws and ordinances or other directions of the 
 common council," whatever may be for the regularity, public 
 health, and convenience of the city. {See pages 10 and 25 of
 
 CASES IN CHANX'ERY. Tt 
 
 the pa?nplilet collection of the by-laws and ordinances of the city, Fi"i circuit. 
 edition of 1836.) And by the lease set out in the bill, all this ,. „, 
 power is delegated to the board of internal improvement. AWrn. 
 This, it is contended, must operate as an estoppel of any claim 
 of the complainants, and as a relinquishment of damages by 
 the city of Detroit; and on this ground, it is contended there 
 is no equity shown in complainants' bill, or rather that their 
 own showing divests them of a right to interfere. 
 
 4. But conceding all other grounds, it is still contented that 
 the "right of eminent domain,'^ under our constitution and laws, 
 must remain with the sovereign power, the people; and that 
 the defendant, Hiram Alden, acting commissioner of the cen- 
 tral railroad, who appears for the purpose of making this mo- 
 tion, loas hut acting as the agent of the people in the exercise of 
 this rights in doing the acts complained of in the bill, and con- 
 sequently that no court can interfere with or restrain him and 
 his associates, in the exercise of the power thus delegated to thein 
 by the sovereignly of the state. 
 
 It is urged that this right of " eminent domain''' was intended 
 to be exercised by the legislature, and that it is fully delega- 
 ted to the commissioners of internal improvement by the 15th 
 section of the act for the regulation of internal improvement, 
 and for the appointment of a board of commissioners, approved 
 March 21, 1837. {See session laws of 1837, pages 197 and 198.) 
 
 The following authorities are referred to as fully sustaining 
 the construction contended for: Rogers vs. Bradshaw, 20 John. 
 R., 735, and cases cited; Wheelock vs. Young and Pratt, 4 
 Wend., 647; Beehnan vs. Saratoga and Schenectady R. R. com., 
 3 Paige Ch. R., 72, 73, and cases cited; Varick vs. Smith and 
 Attorney General, 5 Paige Ch. R., 137; the Mohaick bridge 
 com. vs. tlie Utica and Schenectady R. R. company, 6 Paige, 
 560 to 565; and the Charles river bridge com. vs. the Warren 
 bridge com., 11 Peters R., 536 to 583, and the cases cited. 
 
 5. It is contended also, that the allegations in the bill show that 
 the people of the state of Michigan, the grantees in the lease, 
 which the complainants seek to have delivered up to be can- 
 celled, should have been made parties to the bill, and that the
 
 vs. 
 A'dcn. 
 
 78 CASES IN CHANCERY. 
 
 First Circuit, injunction should be dissolved because their rights cannot be 
 ^"i!"^"^^ infrinn-ed in a case to which they are not parties. 
 
 Cooper c ./J 
 
 WooDBRiDGE and Backus, contra. 
 
 W. WoODBRIDGE. 
 
 The injunction was allowed from and upon the case pre- 
 sented by the bill, ivhich is sworn to. The bill was filed and 
 injunction allowed about the 20th Septen:iber. Abundant time 
 has, therefore, been given to defendants, by answer, to exhibit 
 a new case, or to vary that w^e present. But this has not been 
 done. The case now before the chancellor, is identically the 
 same as that upon which the injunction was allowed. The 
 parties and the chancellor cannot travel out of it; and after 
 the expiration of thirty days, the chancellor is called upon to 
 review and reverse his decision, without the presentation of 
 any oiie additional fact, while yet at chambers; when out of 
 term, a question is decided by a judge, it is in general, incom- 
 petent, and certainly contrary to all legal analogies, to require 
 such review and reversal, until the next regular term. If it be 
 the same judge, the application is not very courteous; if it be 
 another ]v\dge, considerations of delicacy, strengthen the objec- 
 tion. If answer had come in, or if in any way without an- 
 swer, the case had been varied, (which, without answer, I ap- 
 prehend could not be,) then such objection would be obvia- 
 ted. But when all is identically the same, then, if the in- 
 junction were dissolved to-day, the complainants may, with 
 equal propriety certainly, make application to-morrow, to re- 
 instate the injunction. The precedent would be a had one; 
 the course would lead to great inconvenience and uncertainty, 
 as regards both the chancellor and the action of parties, (for 
 what reliance can there be placed upon a decision at cham- 
 bers ?) and according to all legal analogies, irregular. If a 
 new or a varied "case" had been presented by the coming in of 
 answer, very'good reasons may be urged for acting in vacation 
 upon such motion. 
 
 That the complainants have rights, and are entitled to the 
 protection of the law, no doubt can be rationally entertained.
 
 CASES IN CHANCERY. 79 
 
 Their lots and dwelling houses border upon Michigan grand Firstcircit. 
 avenue. This piece of pubhc ground, is 200 feet wide. It is ^"^^^^^ 
 situated in a part of the city, designed rather for healthy and Ai'd;„. 
 desirable residences, than as a place for mercantile or other 
 business. Its great width, manifestly shows its dedication to 
 the uses, not merely of a public highway, but as a place of pub- 
 lic resort; as a public walk and an ornament to the city. It is 
 doing violence to common sense to suppose that the owners of 
 lots and residences bordering upon it, have not an interest in 
 its preservation as such. No person conversant with the pro- 
 cess of the settlement of new countries, would hesitate a mo- 
 ment in avowing it as an universal sentiment, that every per- 
 son buying a lot in any part of a newly laid out village or 
 town, acquires thei'eby, an interest and a right, in the preserva- 
 tion of every street, public square and avenue, and their con- 
 tinued application to the uses to which" they were originally 
 dedicated; and the authorities abundantly sustain the propo- 
 sition as the law of the land. The case of Weyman vs. the 
 Mayor. 4'C-, H Wendell, 486, and of the Citij of Cincinnati vs. 
 Lessees of White, 6 Peters, 431, and all the most respectable 
 courts, it is believed, affirm the doctrine of the existence of 
 such right; and that it passes to each vendee, loith his grant 
 and as a part of it, as well as to the public; and should any 
 city corporation undertake to apply such street, public ground 
 or common, to any use other than that to which it was origi- 
 nally designed, a court of chancery would compel such cor- 
 poration, as trustees, to desist, and apply it as originally de- 
 signed. 
 
 Now this right of the complainants, their privileges, fran- 
 chises, incorporeal hereditaments in the premises, are disturbed 
 by the defendants. They are threatened with total destruc- 
 tion. This public ground is sought to be applied to purposes 
 totally destructive of those to which it was originally dedicated 
 by the United States, (the original proprietary owners of the 
 soil, as well as the supreme political sovereign, for the time 
 being, of the country.) Instead of a free and salubrious at- 
 mosphere, and a beautiful green before their doors, a public
 
 80 CASES IN CHANCERY. 
 
 Firstcircuit. walk, Uninterrupted by violence, shaded by trees and orna- 
 ''"^^^'^^ mented by bordering public and private buildings, (as such pub- 
 AJden. Jic grounds usually are,) there are to be substituted the smoke 
 and dust and fire of noisy steam engines, passing by their 
 doors; putting in jeopardy the lives of such children and oth- 
 ers, as may venture from their doors; the crowd and bustle 
 of congregating passengers, and baggage and merchandize; 
 and with all, the positive inhibition from passing, at pleasure, 
 across the avenue, from one side to the other; or of riding or 
 walking along or upon the railroad, its paths or embankments, 
 under the severe statutory penalties of fine and imprisonment. 
 And all this, according to the case made by the bill, (to which 
 the parties, in the present stage of the matter, must remain 
 confined, without any adequate or legal authority. Deep 
 ditches are to be dug, the surface of the earth graded'mio eve- 
 ry irregularity, and a large building, sixty by one hundred and 
 twenty feet, suitable for artizans, work shops and storehouses 
 erected, obstructing the prospect and destroying the beauty of 
 this public ground, in the progress of creation. 
 
 To protect against such infringements of our rights and to 
 inhibit the erection of these works and buildings, until, at least, 
 some right or justification can be shown upon answer or plea, 
 the complainants appeal to the chancellor and obtain an injunc- 
 tion. The defendants now, at chambers, move, and without 
 filing plea or answer, for the dissolution of such injunction, and 
 object, First, That chancery has not jurisdiction; the remedy 
 is at law, where, if there be right, adequate damages may be 
 obtained. 
 
 To this objection it is answered, that the nature of the inju- 
 ry goes to the total destruction of the right, and that the da- 
 mages cannot well be estimated at law. It is the course of 
 chancery rather \o prevent the injury, where it goes to the de- 
 struction of the right, before it is yet consummated, than to 
 turn the party over for damages, which cannot, any how, well 
 be measured. It is upon this principle that injunctions issue to 
 prevent the erection of a house or a wall against any window, 
 until the right can be tried, although, if erected, it would not
 
 CASES IN CHANCERY. 81 
 
 order it pulled down until the right was tried. {Sec 1 Ves., Fifstc'rcuu. 
 543.) So chancery will inhibit the digging of ground, though cooper 
 a mere trespass, for which damage would be obtained, 1 Vcs., AWen. 
 188; but it is too late to question the jurisdiction of the court. 
 The case of United States Bank vs. Osborne and others, 9 
 Wheat., 733, was far more open to objection than this case. 
 
 Second, It is further objected that the acts complained of 
 are done and being done under the authority and by the order 
 of the constituted authorities of the 5tate. 
 
 To this, it is answered, Fast, That this is travelling out of 
 the case, which negates such pretensions, and if the fact icere 
 so, it should be shown by answer or plea. 
 
 But suppose it were, as thus irregularly pretended, we an- 
 swer. Second, The rights and franchises sought to be de- 
 stroyed, were granted to us by the United States, as the own- 
 ers of the soil, as well as the political sovereign of the coun- 
 try, and that, under our constitutions of government, such 
 grant cannot be revoked without our consent, and we refer to 
 the case of Fletcher and Peek, Cranch 87. {See 2 condens- 
 ed Rep. U. S., 308, and note, 325 to 332.) That, although 
 that political sovereignty may have changed hands, and now 
 be vested in the state, yet that the same incapacity attaches, 
 under the constitution of the United States and of this state, to 
 the successor of the former sovereign, and refer to the Bart- 
 mouth College case, 4 Wheat., 518, where it was decided^that 
 grants of franchises and incorporeal heraditaments by the go- 
 vernment of England, could not now be revoked, against con- 
 sent, by its successor, the sovereign state of New Hampshire. 
 
 Third, But it is further persisted in by defendants, tiiat the 
 acts complained of, are the acts of the legislature, whose pow- 
 er is transcendent; that private right and private property must 
 always be holden subservient to public necessity, and pubUc 
 interest and convenience; that upon the devolution of the pow- 
 ers of sovereignty upon the new state, such new state neces- 
 sarily became vested with the power of making roads where- 
 soever it pleaded, and for such purpose to take private proper- 
 ty; that in any pressing exigency, (of which the state authon- 
 
 VOL. I. 11 '
 
 83' CASES IN CHANCERY. 
 
 FiTBicircuH. tjes must judgc, as in case of war,) a fort might, by them, be 
 Cooper again erected here, and the public and private buildings and all 
 Awen. the ornaments and property of this city be levelled for a pa- 
 rade ground. That such povsrers are among the attributes of 
 sovereignty, lodged with the legislature, which legislature will 
 alone judge of the necessity, carry its mandate into execution, 
 and without any other responsibility than that which it owes 
 " to those who placed them there." :-! 
 
 To this it would likewise be a sufficient answer Aere, to say 
 that it is traveling out of the case; since none of these things, as 
 yet, appear in it, nor is it consistent with judicial propriety, with- 
 out answer or plea, to argue from facts which do not appear 
 in the cases before the court. But as matters of fact and of 
 law, it does not appear, nor can it, that the legislature of Michi- 
 gan has authorized any of these things. 
 
 The eastern terminus of the Detroit and St. Joseph railroad, 
 had been established by the company, of which the state be- 
 came the assignee; and whether correctly or not established, 
 the legislature has expressly confirmed it. {SeeJlcts of 1837, 
 page 131, sec. 2.) And although it has given to the board, 
 upon condition, power to extend the railway down Woodward 
 avenue to Atwater street, {See Acts of 1837-8, page 291,) yet 
 no authority can be found to extend it into Michigan grand 
 avenue; nor among the general powers conferred upon the 
 board, can we discover any which could authorize them thus 
 to close any public highway, and still less any public avenue 
 of the city; nor indeed, for reasons already alluded to, and be- 
 cause every corporate body is confined to the exercise of pow- 
 ers expressly granted, can the corporation of the city legally 
 execute such a lease as in the bill described. {See 2 Cranch, 
 127; 1 United States Condensed Rep., 371, and noteJ) But if 
 the facts had been as represented by defendants, it is still im- 
 possible that the doctrines advanced by them, should be ac- 
 quiesced in. 
 
 By the grant of general legislative power to the legislature 
 of Michigan, the people, in their constitution, say, the govern- 
 ment have given that body the right of taking all private pro-
 
 CASES IN CHANCERY. «• 
 
 perty, whenever the public necessity, (as in case of war,) or ^^J^^l^JIJ^ 
 pubiic convenience, (as incase of roads,) require it; that the cooper 
 legislature have the exclusive and uncontrolable power of Aidcn. 
 judging and determining of the existence of such public ne- 
 cessity and of such public convenience; that such high discre- 
 tionary power must exist in every government; that with us, 
 it is vested in the legislative body, and that our guaranty 
 against the abuse of such high power, consists in the respon- 
 sibility of the legislators to those who appointed them, &c. 
 Now, without dwelling upon doctrine so bold and so dange- 
 rous, it may be sufficient to observe, that it cannot escape ob- 
 servation, that such political maxims, when applied as the or- 
 dinary rule of action, at once annihilate all distinction be- 
 tween governments which are of limited and defined powers, 
 and whose difterent branches are distributed into various inde- 
 pendent and co-ordinate bodies, each deriving all its powers 
 from a written constitution, formed and adopted by the people 
 in their sovereign capacity, (and principally for the very pur- 
 pose of restraining those different authorities,) and those go- 
 vernments in which there are no constitutions. Of the parlia- 
 ment of Great Britain it may be properly said, that the only 
 guaranty for the safety of the rights of private property, con- 
 sists in "the responsibility of the legislators to those who ap- 
 pointed them;" but if the same maxim is to hp. enforced here, 
 of what use or avail are written constitutions here ? 
 
 If a majority of our legislature, in the exercise of the high 
 power alluded to, should think proper to declare that " the 
 public necessity" required that your vested rights of property 
 should be taken from you, and that " the public convenience" 
 required that a turnpike road should be opened through your 
 parlor, who, upon the maxim contended for, can gainsay it ? 
 Of what use" to you, then, are the constitutional guards of the 
 governments of the United States, and of this state, for the 
 rights of private property? If it be answered that this is ar- 
 guing upon the possible or probable abuse of power, then I an- 
 swer, that it was to guard against such possible or probable 
 abuse of power, alone, that such guards, as exist there, were
 
 84 CASES IN CHANCERY. 
 
 Firstcircuit. inserted in the constitutions of the United States and of this 
 Cooper state. Public necessity ! — so a Roman senate declared — re- 
 AWen. quired, that Julius Csesar should be made dictator, and he be- 
 came such. The legislative power of France, from principles 
 of public necessity and expediency, deemed it proper that 
 Napoleon should be first consul — who could prevent it? The 
 Rump parliament thought that the "public convenience" 
 would be best promoted by appointing Oliver Cromwell to be 
 protector, and " being responsible ever to those who appointed 
 them," they so declared ! 
 
 H. T. Backus submitted a written argument. 
 
 " The Chancellor. — A preliminary objection is made by the 
 counsel for the complainants, that the injunction in this case, ha- 
 ving been allowed upon the bill, as sworn to, and no answer 
 having been put in, nor the state of the case varied, it is not 
 competent, or according to the course of practice, to move to 
 dissolve on the same state of facts in vacation. 
 
 Our statute (R. S., 376, sec. 103,) authorizes the justices of 
 the supreme court severally, to "exercise the powers of the 
 chancellor, with respect to the granting of injunctions," in cer- 
 tain cases. An injunction granted by a justice of the supreme 
 court, in cases where the statute authorizes it, stands upon the 
 same footing ns if granted by the chancellor, and in either 
 case, it is competent for the defendants m vacation, and before 
 they put in their answer, to move to dissolve the injunction for 
 ths want of equity in the bill. [See Minium vs. Seymour, 4 
 Johns. Ch. Rep., 173.) 
 
 It is urged by the counsel for the complainants, that the 
 mayor, recorder and aldermen had no authority to make the 
 lease to the commissioners of internal improvement; that the 
 city of Detroit, having been laid out by the government of the 
 United States, and lots purchased with reference to the plan 
 of the city, adopted by the government at the time of laying 
 out the same, the purchasers have acquired vested rights of 
 such a character, that the plan of the city, thus adopted and 
 cstabhshed, cannot be changed or in any manner interfered
 
 CASES IN CHANCERY. 85 
 
 with, even by the full and express authority of legislative povv- r''^''»<^''<="'*- 
 er, and that the exercise of such a power is regarded in the coopcr 
 
 Vg. 
 
 light of a revocation of a grant, or the violation of the obliga- Aiam. 
 tion of a contract, and the cases of Fklcher vs. Peck, and 
 Dartmouth College vs. Woodward, are cited in "support of this 
 doctrine. I cannot view the question in this light. I am una- 
 ble to perceive that the United States, by authorizing their 
 trustees, the governor and judges, to lay out a town, intended 
 to convey or did convey, any other or greater rights to pur- 
 chasers of lots in the premises, than would be acquired by pur- 
 chasers of lots where an individual had laid out a town or city, 
 and had legally dedicated certain portions for streets and al- 
 leys, on which lots were bounded. But it is undoubtedly true 
 that purchasers of lots bounded upon a street or square, ac- 
 quire a right and are interested in its preservation, and the ap- 
 plication of such street or square to the uses for which it was 
 dedicated; and should any city corporation, without full and 
 express authority so to do, undertake to grant any portion of 
 such public street to other individuals, to be used for any pur- 
 pose which should be destructive of the ends for which such 
 street was originally dedicated, such grant would be void. It 
 is not necessary to discuss at present, the extent or the limits 
 of the legislative power to authorize an improvement in a city 
 or town, by the change of a plan, or a mere easement as a 
 right of way for a railroad, or even the absolute appropriation, 
 for the purpose of erecting permanent public buildings. 
 
 If the ground had been dedicated to a particular purpose, 
 and the city authorities had appropriated it to an entirely dif- 
 ferent one, it might afford ground for the interference of a 
 court of chancery to compel an execution of the trust, by re- 
 straining the corporation, or causing the removal of the ob- 
 struction. {Sec Barkley vs. HowelVs Trustees, 6 Peters' Rep., 
 507.) 
 
 It is contended that the common council of the city of De- 
 troit, in granting the lease set out in the bill, have exceeded 
 their powers; that no such authority has been given to the 
 city authorities by the statutes creating and governing the cor-
 
 86 CASES IN CHANCERY. 
 
 First Circuit. poratioH, and that the act making such grant is void, and can 
 Cooper in no manner effect the rights of the complainants. 
 Aiden. The authority of the common council to lay out, change or 
 alter any street or highway, is contained in the second section 
 of the act entitled "An act to amend an act entitled 'An act 
 relative to the city of Detroit,' approved June 29, 1832," which 
 provides " that when any street, lane, alley, side walk, high- 
 way, water course or bridge, is proposed to be laid out, esta- 
 blished, opened, made or altered by the said common council 
 in said city, due notice shall be given to all persons whose pro- 
 perty will be affected thereby, and a jury shall be drawn," &c., 
 " who, after being sworn, shall go on to the premises on which 
 it is proposed to lay out, establish, open, make or alter any 
 street, lane, alley, side walk, highway, water course or bridge, 
 as aforesaid, and from an actual view of the premises, shall, 
 upon their oaths, determine whether the public improvement 
 or convenience require the thing proposed should be done, and 
 if they agree in the affirmation, then they shall proceed to as- 
 sess the damages, if any, upon any property affected thereby, 
 respectively, to each owner or occupier thereof, and the said 
 damages shall be paid before such improvement or alteration 
 shall be made, and within one month after the verdict, which 
 shall be returned to, and recorded in the mayor's court shall 
 have been rendered," &c. 
 
 The other sections of the acts relative to the city of De- 
 troit, referred to, have no application to the present case. 
 The corporation of the city of Detroit have no power, except 
 that which is derived from the act incorporating the same, or 
 the acts specially relating thereto. (.S'ee the People vs. the cor- 
 poration of Albany, 11 Wend., 544; Oakley \s. the Trustees 
 of Williamsbu7'g and Monroe, 6 Paige Rep., 262.) 
 
 Does the statute above referred to, authorize the corporation 
 of the city of Detroit, by a vote or lease, to make a permanent 
 appropriation of a part of one of the streets of the city for 
 the purpose of erecting a large and permanent building, and 
 to the great injury of individuals 1 Is it such an alteration or 
 charge of the public street as is contemplated by the act ? The
 
 CASES IN CHANCERY. 87 
 
 corporation have not pretended to follow the forms of law, ^''^larcuu. 
 It is so alledged, and their acts show it to be so. The lease cooper 
 is carefully guarded. It says: "the common council so far as Aiucn. 
 they have power and authority, under the city charter and 
 amendments thereto, and without the intervention of a jury, to 
 assess private damages, and in this manner so to do, do hereby 
 lease to the people of the state of Michigan," «fec. This lease 
 purports to have been executed by virtue of a resolution of a 
 public meeting of the freemen of the city of Detroit. But 
 this cannot vary the case; a portion, or even a majority of the 
 citizens cannot legislate upon the rights of others in this way. 
 It is competent for individuals to stipulate as to their own 
 rights or their own property, but they cannot in this way, in- 
 terfere with the rights or property of others. 
 
 The hasty conclusions of a public meeting, regulated by no 
 forms or rules of proceeding would be substituted for the safe 
 guards of our constitution and laws. It would be deserting 
 at once the learning and the labors of the statesman, and law- 
 givers who have endeavored to define and protect the rights 
 of property among other rights, and submitting all to the pas- 
 sions or interests which should prevail at the moment. If it is 
 competent to lease a street in this manner to be occupied for this 
 purpose, it would be for any other purpose; and whoever should 
 happen to be the individual whose dwelling was approached 
 in this manner, would be fully sensible of the danger and 
 inconvenience of such an exercise of power. It is not in the 
 power of the city authorities, at all events, under the existing 
 laws, to make such a grant to the injury of any individual; and 
 the complainants may properly treat this proceeding, as far as 
 it interferes with their rights, as void, and as conferring no au- 
 thority upon the commissioners of internal improvement to 
 erect the building complained of, to their injury. But it is 
 insisted that if it should be found that the common council ex- 
 ceeded their powers in granting the lease in question; still the 
 commissioners of internal improvement have full authority to 
 do the acts complained of by the bill. 
 
 This presents a dilllcult and important question.
 
 88 CASES IN CHANCERY. 
 
 Firat circuit, gy [\^q thirteenth section of the act for the regulation of 
 Cooper internal improvement, &c,, {Session Laws of 1837, page 196,) 
 Aiden. the board of internal improvement are authorized and required 
 to establish the rates of toll, &c., and " to erect all such toll 
 houses, weighing scales, offices, and other edifices; and also to 
 purchase such grounds for the convenience thereof as they 
 may think necessary for the convenience and profitable use of 
 their canals or railroads," &c. 
 
 The 15th section of the same act, provides that *' the said 
 board are hereby empowered to receive any cessions or grants 
 for the use of the people of this state, from any person or per- 
 sons, of any lands through which any line of canals or railroad 
 or other public work, shall have been located. Said board of 
 commissioners, and every acting commissioner under their di- 
 rection, shall be, and they are hereby, vested with all the privi- 
 leges and powers necessary for the location, construction and 
 keeping in repair all canals, railroads and other improvements 
 of which they may have charge; and the said board, tJieir 
 agents or those with whom they may contract for working or 
 repairing any of said works of internal impi*ovements, or any 
 parts thereof, may enter upon, use and excavate any land which 
 may be wanted for the site of the same, or any other purpose 
 which is necessary in the construction or repair of any of said 
 works," &c." 
 
 It is said, by the counsel for the defendants, that these two 
 sections give the commissioners full power and lawful autho- 
 rity to do all that is alledged in the bill, they have done, or 
 contemplate doing. 
 
 Have the legislature, by these general powers, authorizing 
 and requiring the commissioners to erect toll houses and other 
 edifices, and to purchase the lands necessary for the conven- 
 ience thereof, &c., authorized them m the manner complained 
 of by the bill, to appropriate and occupy a public street for a 
 permanent building, 140-feet long by 60 feet wide, to the great 
 damage, as alledged in the bill, of the complainants 1 
 
 After the most careful examination, I have been led to the 
 conclusion that the legislature did not contemplate conferring
 
 CASES IN CHANCERY. 89 
 
 this power on the commissioners, and that no such power is, by fu-m circuit. 
 the act, conferred. cooper 
 
 In order more fully to understand this question, it may be Aiden. 
 well to refer to the laws of the state of New York upon this 
 subject, and the construction which has been given to the 
 powers of the commissioners conferred by those laws. 
 
 By the 16th section of the revised laws of New York, full 
 power is given " to erect on, and take possession of, and use all 
 lands, streams and waters, the appropriation of which for the 
 use of such canals and works, shall, in their judgment, be neces- 
 sary." By the 19th section of the same law, it is provided " that 
 whenever for the purpose of constructing a canal or making 
 any extraordinary repairs or improvements, it shall be deemed 
 necessary by the canal commissioners having charge of the 
 work, to discontinue or alter any part of a public road on ac- 
 count of its interference with the proper location or construc- 
 tion of such work, he shall make or direct to be made, such dis- 
 continuance or alteration." 
 
 By the 24th section of the same law, the board of commis- 
 sioners are authorized to erect such toll houses, offices and 
 other edifices, and purchase such grounds for the convenience 
 thereof, as may be deemed necessary for the profitable use of 
 the canals," &c. 
 
 It would seem, then, that the legislature of the state of New 
 York, only contemplated the discontinuance or alteration of 
 any public road in case of its interference with the proper lo- 
 cation or construction of the canal, repairs or improvements, 
 and deemed it necessary to authorize it, by special authority, 
 so to do. The general powers given to the commissioners in 
 this act, are substantially the same as the powers conferred 
 upon the commissioners of our state by the act above referred 
 to. For the pui'pose of offices or edifices, I am inclined to be- 
 lieve that the laws of New York contemplate the acquisition 
 of lands by purchase or grant, only. It certainly does not 
 contemplate occupying a highway, in a case like the one now 
 before this court; but only in cases where the highway shall 
 interfere with the public works. 
 Vol. I. 12
 
 Cooper 
 
 vs. 
 Alden. 
 
 90 CASES IN CHANCERY. 
 
 Firstcircuit. By the 13th section of the act of this state, before referred to, 
 the commissioners are authorized to construct all houses and ne- 
 cessary edifices, &c., and to purchase lands for the convenience 
 thereof, &c. ; and it is urged that by the general powers contained 
 in the 15th section of the same act, it is competent for the com- 
 missioners to appropriate a part of one of the public streets for 
 the purpose of erecting thereon the proposed edifice, and may 
 extend the railroad some twenty rods, as appears from the plat 
 exhibited, from its present termination, and directly away 
 from the route, and not as a connecting link between its points 
 of termination. Can it be fairly inferred from the act, that it 
 was contemplated to authorize the occupation and obstruction 
 of highways for public buildings, in this way 1 
 
 I cannot view the powers conferred by the 15th section in 
 any other light than as applying to cases where it became ne- 
 ctssM-y to appropriate property, and interfere with private 
 rights, in carrying out the great objects of the law to connect 
 the two points of termination by a continuous railway, and 
 that the legislature did not contemplate or intend to confer the 
 power to construct lateral ways to the distance here contem- 
 plated, and' there appropriate a public highway for the purpose 
 of a large permanent building for car houses and offices. 
 
 The strongest case to be found in support of the exercise 
 of such broad powers, is the case of Rogers vs. Bradshaw, 
 20 Johns. Rep., 735. In this case, where the route of the ca- 
 nal interfered with a turnpike road, the supreme court held 
 that the commissioners were not justified in placing the road 
 on adjoining lands, although it was proved in the cause that 
 the one or the other must yiefd. On appeal to the court of 
 errors, it was held that the general authority to discontinue a 
 public highway included a turnpike; and, also, that under their 
 general powers, it was competent for them to make this diver- 
 sion of the turnpike from the necessity of the case, and that 
 the legislature must have intended to confer this power, which 
 was necessary to carry fheir general powers into effect. The 
 court say: "the turnpike road was unavoidably encroached up- 
 on by the canal. Another road was indispensable before the
 
 Cooper 
 
 vs. 
 Alden. 
 
 CASES IN CHANCERY. 01 
 
 canal was commenced, and the land taken was necessary for nrstcircuit. 
 
 the road; and furtiier, it is very certain the improvement of' 
 
 the canal at this place could not be prosecuted without the IH! 
 
 road." 
 
 Is it to be inferred from the reasoning in the above cited 
 case, that the general provisions of our statute above cited, 
 reach a case like the present? Here the proposed erections 
 are manifestly not absolutely necessary to carry into effect the 
 general powers of the board of commissioners, but the road is 
 extended to a distance from the line of the railroad, and the 
 public street in front of the dwellings of the complainants per- 
 manently appropriated. 
 
 Would the court, in the case above cited, have construed 
 this as coming within the meaning of the statute? It is be- 
 lieved not. 
 
 But it is said the discretion is vested in the board of commis- 
 sioners, and that no other tribunal should interfere. This is 
 probably the correct view of the exercise of the powers clear- 
 ly given them by law, and the exercise of which are necessa- 
 ry to carry out the objects contemplated by the act. But is 
 it true, that by virtue of their appointment, they may exercise 
 unrestrained power over the property or rights of others, and 
 that no remedy exists but an appeal to the legislative power? 
 This would be subverting and overturning one of the first prin- 
 ciples of our government. 
 
 A liberal construction of the powers the board of commis- 
 sioners have granted to them, and necessary for the important 
 objects of their appointment, should be given; but if those 
 powers are exceeded, to the injury of the rights of individuals, 
 the courts, of course, when ajipealed to, must hear and de- 
 cide. 
 
 This court has undoubted jurisdiction to interfere, by in- 
 junction, where public officers are proceeding illegally or im- 
 properly, under a claim of right to do any act to the injury of 
 the rights of others. (See Mohawk and H. R. R. Co. vs. 
 Artclier, 6 Paige Rep., 88; Oakley vs. Trustees of Wllliams- 
 hurg,ld., 264; Gardner vs. Ti-ustees of the village of JSTeichxirg, 
 ^ Johns. Ch. Rep., ]62; Belknap \s. BcThiap, Id., 463.)
 
 92 CASES IN CHANCERY. 
 
 Firstcircuit. The commissioners would not, perhaps, be trespassers un- 
 ^'-^^•'■■'^^^ less thev acted in bad faith; but when this court is appealed 
 
 Cooper • '^^ 
 
 Aiden ^^> ^^ protect the rights of parties, I know of no rule nor of 
 any reason that will excuse it from adjudicating upon the law 
 and the rights of these parties, as it would be compelled to do 
 in every other case. 
 
 This, then, being the view entertained by the court, the 
 question recurs, have the powers, attempted to be exercised 
 by the board of commissioners been granted by the legisla- 
 ture 1 If this extension from the line of the road, and the 
 car house and offices, &c., proposed to be erected, are autho- 
 rized by the act, what is the limit of the powers of the com- 
 missioners ? If it may be extended twenty rods; it may, upon 
 the same principle, be extended one hundred rods. If the 
 street in front of the residences of these complainants, may, 
 by virtue of these general powers, be occupied for the purpo- 
 ses here contemplated, and there is no remedy; I can see no- 
 thing to prevent the occupation of the street in front of the 
 residence of any other individual, for a furnace for the manu- 
 facture of engines, and an other for a shop for the manufac- 
 ture of cars or carriages, for store houses or for a dwelling 
 house, for the residence of the receiver of tolls. I cannot 
 well perceive where the limits of this implied power are to be 
 found. It is a conclusion from which I cannot escape, that the 
 legislature, by the general term of canals, railroads and other 
 improvements, and authority to occupy any lands wanted for 
 the site thereof or for any other purpose necessary in the con- 
 struction and repair of any of said works, did not intend to 
 confer powers of the kind here claimed; but the term ''other 
 improvements," must have reference to the improving the 
 navigation of rivers aiad the various works of internal improve^ 
 ment under their chairge. 
 
 That the legislature did not contemplate, after authorizing 
 and requiring the board to build edifices, &c., and to purchase 
 such lands as were necessary for the convenience thereof, 
 giving power to occupy lands and highways without consent 
 or purchase in the m anner here complained of; and that lands.
 
 CASES IN CHANCERY. 98 
 
 &c., were only to be taken against the consent of the owners F»"'Circuif. 
 on the grounds and for the reasons for wliich such powers are coopcr 
 usually given, from the necessity of the cas4,' where the taking Aiden. 
 is necessary to carry into cflect the great general objects in 
 view. Such has been the course in New York and elsewhere, 
 so far as I have been able to ascertain. 
 
 The right of the legislature to grant such powers of appro- 
 priating lands or highways for the erection of offices, edifices 
 and other public buildings of the kind here contemplated, it is 
 not intended now to discuss; but if such powers are granted, 
 it is but reasonable to presume it will be definitely done as in 
 the state of New York, and as was done by our legislature in 
 extending the Central railroad down Woodward avenue, in 
 the city of Detroit, and not by implication, and with proper 
 safe guards. 
 
 It has been urged that the statute of March 20, 1837, sec- 
 tion 2, required that the surveys of the several routes should 
 be first made; that notice should then be given, and after hear- 
 ing those interested, the commissioners should then proceed to 
 establish such routes, and file in the ofiice of the secretary of 
 state, nccurate plans of such surveys and locations. That, as 
 it is alledged in the bill, and there being no answer, of course 
 no denial, that the extension complained of, was ordered by a 
 resolution, merely to make this extension according to the terms 
 of the lease, and alledged to have been done without law or 
 right, and without observing the mere forms of law; that the 
 proceeding is irregular, and the parties cannot show it to have 
 been legally done by reference to the statute merely, but must 
 show affirmatively and positively, by way of answer, that they 
 have pursued its forms and kept within the powers granted. 
 
 After the views expressed on other points in this case, it may 
 not be very material for the purposes of this motion to decide 
 this question . But, as it may be convenient as a question of 
 practice, it may be proper to express my views upon this point. 
 This is a motion to dissolve an injunction without answer, and 
 for want of equity in the bill. 
 
 So far as the statute, which is a public law, goes to show
 
 CASES IN CHANCERY. 
 
 First circuii. ^]^r^i ^]^q ^cts of the commissioners, as set out in the bill, are 
 Cooper within their powers, and to be exercised in the manner therein 
 Arden. stated, so far it is competent to show by it, they are lawfully 
 authorized to perform the acts they are alledged to have per- 
 formed, and that the complainants have no just cause of com- 
 plaint, and that hence results a want of equity in the bill. 
 
 It has been further said in the argument, that the legisla- 
 ture, by their act of April 6, 1838, have themselves put a con- 
 struction upon the powers of the commissioners, and that fur- 
 ther legislation was necessary to authorize a further extension 
 of the railroad from its present termination. 
 
 This act provides that the commissioners are hereby authori- 
 zed, with the consent of the common council of the city of 
 Detroit, to extend the tracks of the Central railroad from its 
 present termination down Woodward avenue to its intersection 
 with Atwater street, and thence each way along said Atv^^ater 
 street as far as said commissioners may deem best for the pub- 
 lic good, &c. 
 
 This may not be of decisive consequence in the decision of 
 this question, but it certainly may be regarded as confirmatory 
 of the views heretofore expressed of the proper construction 
 of the general powers of the commissioners. The commis- 
 sioners themselves, by asking and obtaining a lease of the city, 
 and by the uncontradicted allegations of the bill, acting in pur- 
 suance of it, and making it the basis of their proceeding in 
 this matter, seem to have taken the same view of their pow- 
 ers. 
 
 But it is said that whatever views may be taken of the pow- 
 ers under which the commissioners acted, still the complain- 
 ants have net made a case of such an interference with their 
 rights, as calls for the interposition of this court by injunction. 
 
 It must be remembered that the allegations contained in the 
 bill are not denied, and that, for the purposes of this argument, 
 they must be taken as true, as admitted. 
 
 In regard to the injury, the bill alledges, in substance, that 
 the complainants, and those under whom they claim, have been 
 in possession for more than twenty-five years; that the com- 
 plainants have laid out large sums of money in erecting build-
 
 zs. 
 Alden. 
 
 CASES IN CHANCERY. dd 
 
 ings, and preparing residences for themselves and their fami- Firstciicuit. 
 lies; that the obstructinfj said street by buildings and perma- ^^^P''"^^ 
 
 ' C5 •' D r Cooper 
 
 nent fixtures, would render the complainants' premises uncom- 
 fortable, inconvenient and unsafe, in proportion as the said 
 street should be contracted or obstructed ; and that, should 
 said avenue be permanently contracted, their plans of making 
 said premises a place of residence, would be wholly defeated, 
 and they would be compelled, to their great loss and damage, 
 and in violation of their vested rights, either to suffer hazard, 
 inconvenience, annoyance, and wrong, or to abandon their im- 
 provements, made on said premises, and seek elsewhere a place 
 
 of residence. 
 
 That if said building shall be erected, as contemplated by 
 said lease, it will greatly encumber, block up and obstruct the 
 free use of the same; and will extend across the entire front 
 of lot 42, and nearly all of the eastern half of lot 43,. the pro- 
 perty of the complainants, to the great annoyance and damage 
 of the vested rights of complainants and other proprietors of 
 lots on said avenue. That the board of commissioners have 
 directed said building to be erected, &c., to the great wrong 
 and injury of complainants, without pretending to provide any 
 compensation for the great damages] the complainants would 
 sustain thereby, and without pretending to pursue any of 
 the mere forms of law. That defendants, or some of them, 
 have commenced breaking up the streets, &c., and that they 
 fear, unless restrained, they will go on and erect said building, 
 dig up and encumber said avenue, to the great and irreparable 
 loss and damage of the vested rights of complainants. That 
 the street, as they believe, must be elevated from one to three 
 feet, &c. ; that they will be deprived of all passage, except at 
 the peril of the lives and safety of themselves, families and 
 property, by reason of the cars, engines and other vehicles 
 passing and re-passing upon said railroad, and collected about 
 said contemplated depot j and that said railroad and building 
 will be a great and intolerable nuisance to the said complain- 
 ants' said premises, and^render the same wholly unfit and un- 
 safe as a place of residence for the complainants and their fami-
 
 ^ CASES IN CHANCERY. 
 
 First Circuit. lies, and that their premises would be in danger of fire from 
 ^^"^/''^^ engines passing and beinsf stationed so near them, &c., &c.; 
 
 Cooper o r o <-> ,,.,,. 
 
 '^'f- with Other allesjations of similar import, and to which it is not 
 necessary further to refer. The foregoing are referred to, 
 merely to show the character of the averments in the bill, and 
 to test the question whether such a case is made, which stand- 
 ing uncontradicted, that the court is bound to interfere. 
 
 It is said that as there is a plat accompanying the bill show- 
 ing the extent of the obstruction contemplated, that this court 
 can, without denial of the strong allegations of the bill, which 
 are sworn to by the complainants in this cause, infer that they 
 are mistaken in their views, and that they do not sustain such 
 an injury as they have alledged. This would be going quite 
 too far. The substantial allegations of the bill must be held to 
 be true until denied. Is there, then, such a case made as ren- 
 ders it the imperative duty of this court to permit the injunc- 
 tion allowed by the judge of the supreme court, to stand until 
 an answer 1 
 
 Of this, if the most respectable authorities furnish a guide, 
 and if the views previously expressed in this cause, are cor- 
 rect, there can be very little doubt. In 6 Paige, 264, Oakley 
 vs. The trustees of Williamsburgh, where the trustees were pro- 
 ceeding to dig down a street, the chancellor says: "if the trus- 
 tees have no such powers as they have assumed to exercise, 
 then this appears to be a very proper case for the allowance 
 of an injunction, to restrain an illegal proceeding by them, to 
 dig down and alter the grading of the street as established, 
 which, as alledged in the bill, will be a material injury to the 
 value of the property of these complainants." The cases cited, 
 2 Johnson, 463; Belknap vs. Belknap, 1 Vcsey, 188; Slush vs. 
 Trustees of Morden college; Agar vs. The Regents canal com., 
 Cooper^s Equity Rep., 77, a7id 6 Paige, 88, are also in point, 
 and show that jurisdiction in this class of cases, has been in 
 constant exercise. 
 
 The case of Corning and others vs. Lowrie, 6 Johii. Ch. R., 
 440, is strictly analogous. This was a bill for an injunction to 
 restrain the defendant from obstructing Vestry street, in the
 
 CASES IN CHANCERY. 97 
 
 city of New York, and averring that he was building a house Firstcircuit. 
 upon that street, to the great injury of the plaintilfs, as owners ^.^^p^^. 
 of lots on, and adjoining, that street; and that Vestry street ^iden. 
 has been laid out, regulated and paved, for about twenty years. 
 The chancellor distinguished this case from that of the Attor- 
 ney General vs. Tlie Utica insurance co7npuny, inasmuch as here 
 was a special grievance to the plaintiffs, aflccting the enjoy- 
 ment of their property, and the value of it. The obstruction 
 was not only a common or public nuisance, but worked a special 
 injury to the plaintiffs, and upon these grounds the injunction 
 was granted. I am unable to distinguish this case from the 
 one under consideration. 
 
 It results, then, that this court, having jurisdiction of the sub- 
 ject matter, and being appealed to by those who, as they al- 
 ledge, are suftering wrong and injury, and who have made a 
 case coming clearly within the authority of adjudged cases, the 
 duty of this court is imperative; it is one from which it dare 
 not shrink, however much it may regret that this question has 
 arisen. 
 
 It is but due, and of this the court is fully conscious, that 
 the public officers should be sustained in the ^exercise of the 
 powers which are granted them; but when appealed to, upon a 
 question of individual rights, it can have no other duty but to 
 apply the law to the case. It cannot be improper further to 
 say, that in the prosecution of the work here complained of, it 
 is beyond doubt that the board of commissioners have acted in 
 the most perfect good faith. 
 
 A great variety of other questions have been raised and dis- 
 cussed, in the course of this laborious investigation. They 
 have been intently and carefully considered, but not being ma- 
 terial in the decision of this motion from the conclusion to which 
 I have arrived, it is not deemed necessary to discuss them fur- 
 ther in this preliminary stage of the cause. 
 
 The motion to dissolve the injunction must be denied. 
 
 Motion denied. 
 
 Vol. 1. 13
 
 S8 CASES IN CHANCERY. 
 
 Mary Devaux vs. the Mayor, &c., of the city of De- 
 troit. 
 
 First Circuit. "Where the complainant had been In possession and occupied certain premises in the city 
 
 \^^rv-^_/ of Detroit about thirty years, and had received a deed from the governor and judges of the 
 
 Devaux territory of Michigan for the same, in the year lB-21, and the city corporation were proceeding 
 
 "*• to open 3 street through the premises, (under a claim that the street was there originaUy 
 
 '''Detrmt?'^ laid out,) and to remove the fences and buildings for that purpose, an injunction was granted 
 
 to restrain the corporation from so doing, and the chancellor refused to dissolve the same 
 
 until the defendants should establish their right at law. 
 
 Acourt of_chancery is not the appropriate tribunal for the trial of tides to land. 
 
 This was a motion to dissolve an injunction. 
 The statement of the case is sufficiently set forth in the 
 opinion of the chancellor. 
 
 A. D. Frazer and J. A. Van Dyke, in support of the mo- 
 tion. 
 
 The bill, in this case, is brought to enjoin the defendants from 
 removing obstructions and opening up a part of Congress street 
 in the city of Detroit, and the complainant claims title from 
 the governor and judges of the late territory of Michigan. 
 
 The common council deny that such title was given, and 
 even if it were, they deny the authority of the governor and 
 judges to give any title to that which had been previously es- 
 tablished as a street. When the town of Detroit was laid out, 
 streets established and plan adopted, their powers, quoad hoc 
 were extinguished. (See act of congress ^' to provide for the 
 adjustment of titles to land in the town of Detroit," Sfc, appro- 
 ved April '2\, 1806; Laws of Michigan of 1833, page 34.) 
 
 A naked power, not coupled with an interest, must be strict- 
 ly pursued in form and substance; and all acts done under a 
 special authority not warrantable by it, are void. Douglas' 
 R., 565, 575; 7 Com. Dig., 15, 17, 19, 20, 26; 5 Term R., 567; 
 13 Peter sdorf 458; 1 W. Bladcstone R., 283. 
 
 If a man pleads an act done pursuant to a power, he ought 
 to show, the power strictly to be pursued in all circumstances. 
 2 Day R., 418.
 
 CASES IN CHANCERY. 99 
 
 An appointment when executed is to be considered in the Firstcircuit. 
 same light as if it had been inserted in the original deed, by j^^^^^^ 
 •which the power of appointment was created. 1 Johns. R., The^c'ityof 
 342, 438; 2 Term R., 251 ; 7 Johns. C. R., 45, 48; 4 Kent Com., 
 323. 
 
 The execution of powers shall have the same construction, 
 force and effect in courts of law which they have in courts of 
 equity. 2 Burrows, 11, 46; Douglas R., 293. 
 
 D. Goodwin, contra, 
 
 1. The possession is sufficient to authorize and sustain a per- 
 petual injunction, or until defendants shall have established a ti- 
 tle at law. Vaiick vs. Mayor, «5'C., of JS'ew York, 4 J. C. R., 
 53. 
 
 2. Although defendants claim the premises to have been 
 part of a street, yet they admit the original grant to complain- 
 ant's grantor, and also the subsequent grant of the ten feet. 
 They pretend it not to be of the same premises. It is, how- 
 ever, obviously intended to he of the ten feet in question, and so 
 admitted, otherwise there would be the absurdity of two dif- 
 ferent grants for the same thing, and that, by \\\e govcimor and 
 judges of Michigan. A court of equity would, therefore, obvi- 
 ously prevent waste and destruction, &c,, until the right is de- 
 termined. Further, it would relieve against so palpable a mis- 
 take. Further, the deeds which the defendants find of record 
 to liOngdon, may not be the only deeds to him; there may be 
 otliers under which he held. 
 
 3. Again, the laying out of streets, &c., on j^aper, does not 
 determine the locality or boundary. This can only be done by 
 actual survey, or use for a series of years, from which an actu- 
 al survey and laying out, (otherwise than on paper,) may be 
 presumed. Here the use has been only to, and not of, the pre- 
 mises in question. 
 
 4. When a highway has been laid out and opened, it may be 
 abandoned, and that by non-user, and where there has been 
 a non-user for several years, and occupation of the ground by 
 the adjacent proprietor, or a claimant for several years, it is
 
 100 CASES IN CHANCERY. 
 
 First Circuit. pj.ggun^ed to have been abandoned. The proprietor^of land 
 ""^^^^^ bounding on a street or water course, is by law deemed the 
 Thedlyof owner of the soil to the centre of the street or of the stream, ad 
 filum aqucH' 3 KenVs Com., 432. 
 
 Here the premises have never been used for a street, but al- 
 ways, (since they were at all appropriated,) possessed and oc- 
 cupied by the complainant and her grantors. This makes the 
 case impregnable in law or equity, unless, indeed, the defend- 
 ants can, in a proper court at law, establish a legal title, not 
 barred by any statute of limitations. 
 
 5. The answer is not sworn to. The answer of a corpora^ 
 tion under its seal, is not upon oath, nor received as evidence 
 on oath. 
 
 The Chancellor. — The bill states that the complainant and 
 those under whom the claims, have been in possession of the lot 
 since 1809, that it has been inclosed by a fence since that time, 
 and that valuable improvements have been made upon it, &c.; 
 that defendants are about proceeding summarily and without 
 pursuing the forms of law, to pull down the fences and remove 
 the buildings, &c.; that in addition to the possession, she holds 
 the lands by deed emanating from the governor and judges of 
 the late territory of Michigan, dated April, 1821. 
 
 The answer admits the possession, but sets up thatLongdon, 
 the grantor of the complainant, held a part of the land under 
 a permission from the governor and judges, and that he took 
 possession of the residue without authority, and that the deed 
 of 1821 is uncertain in its description, and does not include the 
 land in controversy, and that by the plan of the city, said street 
 was laid out sixty instead of fifty feet wide. 
 
 It is an admitted fact that the complainant and those under 
 whom she claims, have been in possession and have had this pro- 
 perty inclosed for nearly thirty years, and the question is, shall 
 the defendants, after such a length of possession, be permitted 
 to take forcible possession, and remove the fences and building, 
 without first establishing their right by legal process? 
 
 It appears to me but just, that the complainant, after such a
 
 CASES IN CHANCERY. 101 ^ 
 
 i 
 length of possession, should be protected in the enjoyment of First Circuit. 
 
 this property until an adverse ritrht be established. ^^^^^^^ 
 
 It is urged that the governor and judges, being trustees, with xhcdty of 
 defined powers, after having laid out and established the plan, ^"°"- 
 had no authority, either to grant to any one the right to occu- 
 py a part of the street, or to grant the deed of 1821. 
 
 After ground had been dedicated and appropriated for a pub- 
 lic street, and rights acquired with reference to the plan, they 
 had no authority to appropriate it to a different purpose. 
 
 But it appears in this case, that the land in question was ne- 
 ver used or appropriated as a street, and the dedication of it 
 is attempted to be shown by reference to the plat, and on this 
 ground the court is asked to dissolve the injunction, without 
 any establishment of the right in opposition to a possession and 
 improvement of thirty years. 
 
 ■The complainant seems to have acquired a confirmation of 
 her claim by the deed of 1821, from the same board which is 
 alledged to have established the plan of the city. It is said 
 that this deed is impeifect, but it is manifest that it contempla- 
 ted the same premises. There arc cases where the abandon- 
 ment of a street may be presumed hy non-user. There having 
 been a possession and improvement for so long a period; the 
 land in question having never been used as a street, it would 
 be obviously unjust to permit this forcible entry without the 
 defendants first establishing a right at law. [See Varick vs. 
 Corporation of J\''ew York, 4 Johns. Cli. Rep., 53.) And this 
 court is not the appropriate tribunal for the trial of titles to 
 land. Abbott vs. Allen, 2 Johns. Ch. Rep., 521. 
 
 The injunction must be continued until the defendants esta- 
 blish their right at law. 
 
 Motion denied.
 
 ■'102 "^ CASES IN CHANCERY. 
 
 Henry V. Disbrow vs. De Garmo Jones and others, 
 and De Garmo Jones vs. Henry V. Disbrow and 
 
 others. 
 
 First Circuit. A party seeking to set aside a conveyance, on the ground of fraud, must be prompt in commu- 
 nicating it when discovered, and consistent in his notice to tlie opposite party, of the use he 
 intends to make of it. 
 Where the complainant had rested for several months after he had knowledge of the fraud 
 complained of. and unUI the condition of the property had changed, before he took any steps 
 to rescind the contract, this court refused to interfere, but left the complainant to his remedy 
 at law. 
 Where J. sold and conveyed certain premises to H. and others, for $20,000, subject to the un- 
 expired term of W., under a lease from J. of the same premises, and H. and others, executed 
 a mortgage to J., upon the premises, to secure the purchase money, and it was agreed that 
 J. should receive the rent from W., so long as W. remained in possession under the lease, 
 and that J. should pny to H. and others, the interest on the 820,000, so long as AV. remained 
 in possession, and the first instalment of $4,000 became due upon the mortgage, and J. pro- 
 ceeded to foreclose the same, and the bill was taken as confessed as against the mortgagors ; 
 it was held that the amount due from J. to H. and others, by virtue of the agreement to pay 
 interest, should be deducted from the amount due on the mortgage, and a reference was di- 
 rected to a master to ascertain the balance due on the mortgage. , 
 
 For a general statement of the facts in the first of these 
 cases, see Disbrow vs. Jones and others, ante 48. 
 
 In the case above referred to, Jones was proceeding to fore- 
 close a mortgage by advertisement, under the statute, and 
 Disbrow, claiming an undivided interest in the mortgaged pre- 
 mises as purchaser from one of the mortgagors, filed his bill 
 and obtained an injunction restraining Jones from foreclosing 
 the mortgage. On coming in of the answers, the injunction 
 was dissolved. 
 
 Jones then discontinued the proceeding to foreclose by ad- 
 vertisement, and filed his bill December 6, 1837, to foreclose 
 his mortgage. 
 
 The bill is in the usual form, against the mortgagors, and 
 states that Disbrow, some time after the sale of the mortgaged 
 premises by Jones to the mortgagors, acquired by purchase of 
 the mortgagors, or some one of them, an estate and interest 
 in an undivided part of said premises, the same being conveyed 
 to him in fee simple; that said Disbrow, by such purchase and
 
 CASES IN CHANCERY. 103 
 
 conveyance, claimed to be the owner of the undivided three- ^''"tci/cuit. 
 fourth parts of said premises. joncs 
 
 The bill alledged that at the time of such purchase and con- Disbrow. 
 veyance, Disbrow was fully informed of the bond and mort- 
 gage, and of Whiting's lease; that he was notified of the lease 
 by Thompson, and also had notice thereof from other sources, 
 and purchased and acquired the interest which he held in the 
 premises, subject to Whiting's lease; that Whiting was, at the 
 time of the pm-chase and conveyance to Disbrow^, in the ac- 
 tual possession and occupation of said premises, under and by 
 virtue of the lease, and that Disbrow knew of the endorse- 
 ment on the lease extending Whiting's term to February 1, 
 1839. 
 
 July 23, 1838, the bill was taken pro-confesso as to all the 
 defendants except Disbrow, who answered. The answer ad- 
 mits the sale of the premises by Jones, the bond, mortgage, 
 lease and agreement; also, the possession, by Whiting, of the 
 premises, but denies that he, Disbrow, knew the terms of the 
 lease, or had any knowledge of the special agreement reciting 
 the extension of the term to Whiting, until his purchase, but 
 states that after his (Disbrow's) purchase of Thompson, Thomp- 
 son drew from his pocket and gave him that agreement. 
 
 D. Goodwin, for complainant. 
 
 WooDBRiDGE and Backus, for defendant Disbrow. 
 
 TrtE Chancellor. The most important points in the first 
 of the above cases, were decided upon the motion to dissolve 
 the injunction. (*S'ee Disbroic vs. Jones, ante 48;) and it is 
 not necessary again to examine and decide the same points 
 "which were then discussed and decided. 
 
 Jones and Whiting, each, had an insurable interest in the 
 premises; they paid the premium on the insurance; they have 
 sustained loss to the full amount of the insurance, and they 
 are clearly entitled to the benefit of the policy. The agree- 
 ment respecting the insurance, was betw^een Jones and Whit- 
 ing; Disbrow was not a party to it; Jones is liable to his ven- 
 dees for the ."$2,800, and this amount must be deducted from
 
 104 CASES IN CHANCERY. 
 
 First Circuit. ^I^g gj^^Qyjjt secured by the mortgage; but I cannot perceive 
 how Jones can be made responsible to Disbrow for the $2,500, 
 when the policy does not pass with the title to the premises. 
 
 There is another point in this case upon which I have en- 
 tertained some doubt. It is the alternative prayer in the bill 
 bv Disbrow vs. Jones and others, that the contract between 
 Disbrow and Thompson may be rescinded and the deeds and 
 conveyances set aside on the ground of fraud. If this is done, 
 it must be on the ground that the complainant has not a full 
 and adequate remedy at law. 
 
 The only particular in which the remedy in this court 
 would be more full than at law is, if the contract between Dis- 
 brow and Thompson, should be set aside, this court would 
 have the power to order a re-conveyance. It is alledged in 
 the bill that a part of the consideration paid by Disbrow to 
 Thompson, was paid in lands, and upon a proper showing, it 
 would unquestionably be competent for this court to order a 
 re-conveyance; but it does not appear that the title to the 
 lands conveyed by Disbrow to Thompson, is still in Thompson, 
 and a re-conveyance is not specifically prayed for in the bill; 
 a specific sum was agreed upon by the parties, which Dis- 
 brow was \o pay Thompson for his interest, a part of which 
 was paid in lands at a specified price. The incumbrance of 
 Whiting's lease, does not affect the title to the property con- 
 veyed by Thompson to Disbrow, but to the present possession 
 only; and it does not sufficiently appear that Disbrow has not 
 an adequate remedy at law. 
 
 A party seeking to set aside a conveyance on the ground of 
 fraud, must bo prompt in communicating it when discovered, 
 and consistent in his notice to the opposite party of the use he 
 intends to make of it. Boi/ce's ex'rs. vs. Grundy, 3 Peters, 215. 
 Such was not the case here; the complainant had notice of the 
 incumbrance of Whiting's lease at the time, or immediately 
 after his purchase from Thompson, and he admits that Thomp- 
 son handed him the agreement recognizing Whiting's right to 
 occupy the premises, under his lease from Jones, until Feb- 
 ruary J, 1839, at the time or immediately after the consumma-
 
 CASES IN CHANCERY. 105 
 
 tion of the contract between Disbrowand Thompson. If Dis- Firstcircuit. 
 brow conceived this to be a fraud upon his rights, lie should at 
 once have given notice of his intention to recede from the con- 
 tract. But this was not done. Disbrow rested for several 
 months, and until the condition of the property was changed, 
 before he took any steps to rescind the contract. 
 
 Under the facts here presented, it would be going further 
 than any case I have been able to find, to rescind the con- 
 tract between Disbrow and Thompson and order the deeds to 
 be cancelled. 
 
 The complainant must be left to his remedy at law, where, 
 so far as I can perceive, that remedy is full and adequate. 
 
 The mortgagee having retained possession of the mortgaged 
 premises by his tenant, would, perhaps, exclusive of any agree- 
 ment upon the subject, be liable to the mortgagors for the 
 rentsj but here was a specific agreement, as to the rent, be- 
 tw^een the mortgagors and the mortgagee. Jones was to pay 
 the mortgagors 8L400 per annum, in lieu of rent. The amount 
 secured by the mortgage is admitted to be unpaid, and a por- 
 tion of it now due; this mortgage is expressly recognized in 
 the deed from Thompson to Disbrow. The mortgagors have 
 permitted the bill to be taken as confessed against them, and 
 Jones is entitled to a decree for the amount now due upon the 
 mortgage, deducting the amount due from Jones to his mort- 
 gagors, by virtue of the agreement, and it must be referred to 
 a master to ascertain the amount so due. 
 
 The bill in the case of Disbrow against Jones and others, 
 must be dismissed. 
 
 Vol. 1. 14
 
 106 CASES IN CHANCERY. 
 
 Bank Commissioners vs. The Bank of Brest. 
 
 First Circuit. Wliere it appeared from the statements in the bill, that a banli commissioner examined into tlie 
 
 ^^^^v^^-^ affairs of the bank of Brest on the second day of August, 1838, and the specie then on hand 
 
 B'k Com'rs was #9,754 92, and that another examination of the affair? of the bank was made on the 
 
 Bank of eleventh day of the same month, and it tlien had but $138 89, and there was no correspond- 
 
 Brest. ent decrease of liabilities ; and about $44,000 of the issues of the bank were in the hands of 
 
 agents without sufficient sureties ; and that of the assets there were $5,000 in ancurrent 
 
 notes ; and that $25,000 of post notes were issued on the fourth day of the same month of 
 
 August, whhout being endorsed by a bank commissioner ; and the bill charged the bank to be 
 
 Insolvent ; and the answer admitted the facts set forth in the bill, but denied the insolvency ; it 
 
 was held that the bank was insolvent within the meaning of the law, and that a proper case 
 
 was made for the appointment of a receiver to take charge of its effects. 
 
 A transfer, by way of security, of a portion of the effects of a moneyed corporation, for the 
 purpose of carrying on the concern, is within the powers of the directors; and a corporation 
 which has no particular mode pointed out for closing its concernSj may make an assignment 
 on obtaining the assent of the stockholders. 
 
 If a corporation suffers acts to be done which destroy the end and object for which it was in- 
 stituted, it is equivalent to a surrender of its rights. 
 
 The directors of a moneyed corporation, like that of the bank of Brest, have no power to make 
 an assignment, without bemg authorized so to do by the stockholders. 
 
 The dnrectors are trustees of the stockholders for the purpose of carrying on the business of 
 the corporation, and not for the purpose or winding it up and destroying its existence. 
 
 The statute prescribes the mode in which the affairs of banking associations, established under 
 the general banking law of this state, shall be wound up, in case of insolvency, and this forms 
 a part of the security to the public, and is one of the conditions upon which they take their 
 chartered powers. 
 
 An assignment made by tlie dii-ectors of the bank of Brest, to a trustee, for the benefit of credi- 
 tors, with a view to evade the provisions of the statute, was held to be against the policy of 
 the law, and void. 
 
 This was a motion for the appointment of a receiver. 
 
 The bill alledged that the bank of Brest had become a body- 
 corporate and politic, under and by virtue of the provisions of 
 an act entitled "An act to organize and regulate banking asso- 
 ciations,"' approved March 15, 1837; that it commenced the 
 usual business of banking, on or about the 30th day of Septem- 
 ber, 1838, and had continued to do banking business up to the 
 time of the filing of the bill; that, January 10th, 1838, it be- 
 came subject to the provisions of an act entitled "An act to 
 organize and regulate banking associations," approved Decem- 
 ber 30, 1837; that Alpiieus Felch, one of the bank commis-
 
 13rcdl. 
 
 CASES IN CHANCERY. 107 
 
 sioncrs, in the performance of his official duties, examined in- Firstarcuit. 
 to the affairs and condition of the bank, on the second, and jj,^^.„„,,„ 
 again on the eleventh days of August, 1838; that from such B„nkof 
 examinations, it appeared that between the second and eleventh 
 days of August, the specie of the bank had been reduced from 
 the sum of $9,754 92, which was actually on hand on the se- 
 cond day of August, to the sum of $138 89, which was all 
 that remained in the bank on the eleventh day of the same 
 month, and that no correspondent decrease of the liabilities of 
 the bank had been made; that about $44,000 of the issues of 
 the bank were in the hands of Lyman A. Spalding, of Lock- 
 port, state of New York, and other persons, agents of the 
 bank, without sufficient security being given therefor; that of 
 the assets of the bank there were $5,000 of uncurrent notes 
 of the " River Raisin and Lake Erie railroad company;" that 
 post notes to the amount of $25,000 were issued, August 4, 
 1838, payable at the Phoenix bank, of the city of New York, 
 one year from date, bearing an interest of seven per cent; that 
 all of said post notes were issued without having been endorsed 
 by a bank commissioner, in violation of the forty-first section of 
 the "Act to amend an act entitled .'An act to organize and re- 
 gulate banking associations, and for other purposes,' approved 
 December 30, 1837." 
 
 That said bank had failed to comply with section 36 of the 
 last mentioned act, in furnishing the securities to the amount 
 required. 
 
 The bill charged the bank to be insolvent, and prayed for 
 an injunction, and for the appointment of a receiver to take 
 charge of its property and effects; also, for a decree to deprive 
 said bank of its corporate privileges, and a dissolution of the 
 corporation. 
 
 The bill was filed and injunction issued August 15, 1838; 
 injunction and subpoena served on the 16th of the same month. 
 
 The answer admits the facts as stated in the bill, but denies 
 that the bank was insolvent, and insisted that its assets, if no 
 unexpected loss occurred in collecting them, would fully dis- 
 charge all its liabilities.
 
 108 CASES IN CHANCERY. 
 
 Firstcircuit. The answci' further stated, that from various difficulties and 
 disappointments, and more particularly from the impossibility, 
 under the circumstances of the case, of perfecting its securities, 
 its president, directors and company concluded to close its af- 
 fairs, and on the fourteenth day of August, 1838, passed the 
 following preamble and resolution: "Whereas, from various 
 disappointments in the receipt of money, and from other un- 
 foreseen and embarrassing circumstances, it is impossible for 
 the bank of Brest to redeem, upon demand, all its notes and 
 bills in circulation, and to pay its other debts; and whereas, 
 unexpected difficulties have arisen in perfecting its securities 
 required by law for the above bank, and the further transac- 
 tion of its business is exceedingly inconvenient; therefore, 
 resolved, that all the choses in action, and personal and real 
 estate, and all the effects and assets whatever of said bank,, be 
 assigned and transferred to Alexander D. Frazer, Esq., of De- 
 troit, and Theodore Romcyn, Esq.. or either of them, (if one 
 shall decline,) in trust, for the purpose of paying all the debts 
 of said bank, as soon as may be, according to the statute of 
 the state; that a deed of assignment be forthwith prepared in 
 pursuance of the above resolution, and that the cashier affix 
 thereto, the seal of the bank, and that the same, when so seal- 
 ed by the said cashier, shall be considered as the deed of the 
 bank." 
 
 That Theodore Romeyn having declined the trust, the bank 
 did, on the fifteenth day of August, execute to Alexander D. 
 Frazer, Esq., an assignment of all its credits and effects, which 
 assignment was in pursuance of the foregoing resolution, and 
 was executed and delivered prior to the issuing of the injunc- 
 tion, and with no knowledge or notice thereof That said trust 
 was accepted by said Frazer, and that he, by virtue of said as- 
 signment, took possession of all the property and effects of 
 said bank, and removed the same previous to the service of 
 said injunction. That the assignment was executed in good 
 faith, &c. 
 
 P. MoREv, attorney general, in support of the motion.
 
 iii'rs 
 
 CASES IN CHANCERY. 100 
 
 1. The directors of such a corporation as the bank of Brest, F'''^i circuit, 
 may assign property to pay a debt, or for any other lawful i;,. ^o 
 purpose wiiich will promote the objects contemplated by the umikof 
 charter; but they cannot make an assignment merely for the 
 purpose of closing its existence, as that would be the exercise 
 of a power not delegated by law, and would, in cftecl, accom- 
 plish a surrender of their chartered rights to another })0wer 
 than that by whom their privileges and franchises were be- 
 stowed. See Session Laws of 1838, jiagc 31, section 17, of the 
 " act to amend the act to organize and regulate banking asso- 
 ciations, and for other purposes;" where the powers of di- 
 rectors arc limited to such acts as " appertain to the business 
 of a banking association." 
 
 2. The '' act to create a fund for the benefit of the creditors 
 of certain moneyed corporations," provides the mode in which 
 all corporations subject thereto, shall be proceeded against on 
 their becoming insolvent, or for any violation of law. It is 
 made the imperative duty of a bank commissioner, immediately 
 upon the ascertainment of any violation of law or insolvency, 
 to apply to the court of chancery, upon bill or petition, for an 
 injunction; and it is declared that the same proceedings shall, 
 in all respects, be had, as in cases of application by the attorney 
 general. (Sec session laws of 1835-G, page 162, section 18.) 
 Section 9, page 159, of the same law% further provides, when 
 a corporation shall become insolvent, and shall have been pro- 
 ceeded against as above, " it shall be the duty of the court of 
 ciiancery, immediately after a final dividend shall have been 
 made, to cause an order prescribing certain rules to be entered 
 in its minutes," shows clearly anticipating and intending that 
 Avhat was imperatively enjoined as an official duty upon the 
 bank commissioner, would be performed in good faith, and that 
 full force and effect would be given by the court of chancery, 
 to what is thus required. 
 
 All of this, an assignment such as is now presented, and re- 
 lied upon to defeat the motion, would prevent. It would ren- 
 der the law nugatory, and place the bank commissioner in the 
 strange predicament of being imperatively required by statute
 
 110 CASES IN CHANCERY. 
 
 First Circuit, to perform an act in the furtherance and promotion of the pub- 
 ^'l^"'^^ He interests, through the medium of the court of chancery, and 
 ^"t-*"'"" vet left nowerless to enforce what was there enjoined; and 
 
 Bank of J r . ir r j • J' 
 
 ^"''■" subject too to be defeated by an act itself a fraud upon indi- 
 vidual rights, and a clear violation of the spirit and intention 
 of the law. 
 
 T. RoMEYN, contra. 
 
 I. The act of 21st June, 1837, entitled " An act to provide 
 for proceedings in chancery against corporations, and for other 
 purposes," does not render it imperative upon the chancellor to 
 issue an injunction and appoint a receiver. 
 
 1. The words of the statute are, that in certain specified 
 cases the chancellor ?nay grant an injunction and may appoint 
 a receiver. These words imply a discretionary power. 
 
 2. This statute, so far as it alters the common law, should 
 be strictly construed. 1 Ke^ifs Com., 433. 
 
 3. The bestowal of jurisdiction upon the chancery is an in- 
 fringing upon the common law, for by it the control of corpo- 
 
 ' rations was intrusted to courts of law, and chancery could not 
 
 interfere. 2 John. Ch. Rep., 371; Id., 389; Hopk. R., 354. 
 
 4. Again. The granting of an injunction is always discre- 
 tionary. 2 John. Ch. Rep., 202, 379. So is the appointment 
 of a receiver. 1 John. Ch. Rep., 57. 
 
 11. The present case does not require the appointment of a 
 
 receiver. 
 
 1. The bank has made an assignment of all its effects. 
 
 2. The act of assignment is legal. 
 
 First. It will not be pretended but that the bank might close 
 its affairs when it pleased, by a surrender of its franchises. 
 This is incident to every corporation. 1 Blk. Com., 485. An 
 assignment is a mutual surrender. 19 J. R., 456; 6 Cow., 
 
 220. 
 
 Second. It had a right to make such surrender, or close its 
 aflairs in this particular way. 4 Mass. Rep., 293; 2 Kent, 
 "ITl; 1 Blh, 475; 6 Cow., 219; 3 Wend., 1.
 
 rs. 
 
 I3nnk of 
 
 Brest. 
 
 CASES IN CHANCERY. Ill 
 
 Third. This particular assignment is valid in all its provi- Firstcircuiu 
 sions. If any are legal, court will not interfere. 5 Paise, 318. '"'^'Y"^^ 
 
 3. While this assignment subsists, the court may not re- 
 move trustee unless under special circumstances of irresponsi- 
 bility, neglect or abuse of trust, &c., which are not here pre- 
 tended to exist. G Johns. Ch. Rejj., 161; Hopk. Rep., 429; 1 
 Paige, 17; 2 Paige, 438. 
 
 4. While the assignment remains in force, and the trustee 
 acts under it, there is no duty for a receiver to perfom. 
 
 First, The assignee of the bank has already in his posses- 
 sion and control all the property which would vest in the re- 
 ceiver, by the fifth section of the act under which the court 
 exercises jurisdiction. 
 
 Second, The securities which have been given under the 
 sixth section of the act amending the general banking law, 
 are given to the auditor general, for the use of the state, and 
 cannot be transferred to the receiver. 
 
 The Chancellor. From the facts which appear in the 
 bill and answer, in this case, there can be no doubt that the 
 bank of Brest is insolvent within the meaning of the law, and 
 that a proper case is made for the appointment of a receiver to 
 take charge of its effects. 
 
 The question as to the validity of the assignment, is not re- 
 gularly before the court; the assignee not being a party, but 
 both parties and the assignee are anxious to obtain an expres- 
 sion of opinion upon this point. 
 
 The assignment set up in the answer, is an assignment by 
 the directors of all the estate, real and personal, and assets 
 and effects of the bank, to a trustee. A transfer by way of 
 security of a portion of its eflects for the purpose of carrying 
 on the concern is within the power of the directors; and a 
 corporation which has no particular mode pointed out for clo- 
 sing its concerns, may make an assignment on obtaining the as- 
 sent of the stockholders. If this assignment is valid, it is no 
 doubt a surrender of the charter; for if a corporation suffers 
 acts to be done which destroy the end and object for which it
 
 112 CASES IN CHANCERY. 
 
 Firstcircuit. was instituted, it is equivalent to a surrender of its rights. 
 '^^^>r^-^ Slee vs. Bloom, 19 Johns. Rep., 456; the People vs. the Bank of 
 
 State ■' 
 
 *»• Hudson, 6 Cowen Rep., 219. 
 
 Bank of ' -' ' ... 
 
 Brest. The directors in making the assignment in question, without 
 
 authority from the stockholders have exceeded their powers.^j 
 
 They are made trustees of the stockholders, for the purpose 
 of carrying on the business of the corporation, andnotfor the 
 purpose of winding it up and destroying its existence. Jlngel 
 and Jlmcs on Corp., 507; 3 IJess., 557. 
 
 The statute prescribes the manner in which the affairs of 
 this class of corporations shall be wound up in case of insol- 
 vency. This forms a part of the security to the public, and is 
 one of the conditions upon which they take their chartered 
 powers. An assignment made manifestly with a view to evade 
 the provisions of the statute, as this seems to have been, is 
 against the policy of the law, and cannot be sustained. 
 
 Motion granted.
 
 CASES IN CHANCERY. 113 
 
 NoYES W. Wadsworth vs. JokSeph Loranger. 
 
 That a deed, absolute in its terms, may be proved liy parole to li:ive been intended by tlie par- First Circuit. 
 lies to operate only as a morlgage, cjinnot admit of a doubt. V^P'^^-"^^ 
 
 Where L. obtained from B. a loan of ^150, for one year, and for security gave an absolute Wadsworth 
 deed of certain premises, and B. soon afier abscondeil and L. died, and llie premises were sold Loraneer 
 by L.'s administrator to \V., subject to the incumbrance, and J. afterwards, with a full know- 
 ledge of all the facts, procured a deed from B. It was held that the deed from L. to B., 
 though absolute on its face, was only valid as a morlgage, and that J. having purchased of B. 
 with notice of the facts, could take no greater interest than B. had in the premises, and that 
 W. was entitled 10 redeem on payment of tlic amount due on the mortgage. 
 
 This was a bill to redeem from the defendant, a tract of land 
 conveyed by Antoine Laselle to Thomas Bell, as a security 
 for #150 loaned, and interest, September 20, 1829, by a deed 
 absolute on the face, but by agreement at the time, merely a 
 mortgage for the security for the money, $150 and interest, 
 payable in one year. 
 
 The bill sets forth the agi-eement as above stated, and the 
 deed of that date, September 20, 1829, under the agreement; 
 that Bell, when the money became due, had left the country, 
 and it was not known where he was or could be found; that 
 I^aselle wAs then ready and desired to pay the money and in- 
 terest; that Laselle died about January 1, 1832, and Wolcott 
 Lawrence was appointed his administrator; that about Decem- 
 ber 3, 1832, he. was empowered to sell the real estate of La- 
 selle to pay debts; the'premises in question were sold to com- 
 plainant for $2,129 90, paid by him, and January 7, 1833, a deed 
 was duly executed to him; that the premises were sold sub- 
 ject to the mortgage, and comj)lainant has been ever ready to 
 pay the amount due; that Loranger, the defendant, with full 
 knowledge of the nature of the conveyance to Bell, and the 
 agreement with him, obtained privately and fraudulently from 
 Bell, a deed of the premises. The bill further alledgcs a con- 
 tinued and uninterrupted possession in Laselle, his representa- 
 tives and the complainant. 
 
 The answer denies any kaowledge of the transactions set 
 forth in the bill, showing the deed toBell to have been a mort- 
 VoL. I. 15
 
 114 CASES IN CHANCERY. 
 
 First Circuit, gage, aiid also of the derivative title of complainant from the 
 ^^^^][^^^^^j representatives of Laselle. It admits the possession of the 
 LorMger. p^'cmiscs to havc been always in Laselle and his representa- 
 tives. 
 
 D. GooDAViN, for complainant, 
 
 A deed absolute on the face of it, if made as a security for 
 the payment of money loaned, is but a mortgage, and this may 
 be shown by parole, and once a moj tgage always a mortgage, 
 until foreclosure, is the doctrine of courts of equity. 4 Kent 
 Com., 142-3, and cases cited in note; 2 Barbour 8f Harrington 
 Eq. Dig., 258, 2G3; 4 Johns. Ch. R., 167; 6 J. C. R., 417; 1 
 Paige C. R., 48, 202, 263; 2 Cowen R., 324; 5 Paige C. R., 9. 
 
 A. D. Frazer, defendant. 
 
 The Chancellor. The facts are briefly these: about the 
 20th of September, 1829, Antoine Laselle obtained from Tho- 
 mas Bell, a loan of $150 for one year, and for security gave a 
 deed of the premises in question. That before the expiration 
 of the time. Bell absconded, and his residence has not since 
 been known. That Laselle has since died; that the property 
 was sold and conveyed to complainant by the administrator 
 of Laselle, subject to this incumbrance, on the 7th day of Jan- 
 uary, 1833. That defendant knew all these facts, but yet af- 
 terwards on the 5th of March, 1836, procured a deed from 
 Bell. Loranger, the defendant, denies all knowledge of the 
 fact that the deed from Laselle to Bell, was a security for a loan^ 
 
 But from the continued possession of Laselle and his repre- 
 sentatives, the proceedings in the attachment suit, which form 
 a part of the exhibits in this cause, in which Laselle, in an- 
 swer to the attachment, states the facts under oath, and in 
 which suit Loranger was a party, from the evidence of Wol- 
 cott Lawrence, v;ho states that he explained at that time the 
 circumstances to the defendant, and from the positive evidence 
 of Warner Wing, Esq., there can be no doubt that he was a 
 purchaser with notice. It was objected to the testimony of 
 Lawrence, that his evidence Was a professional secret, and 
 therefore ought not to be received. But it is not a communi-
 
 CASES IN CHANCERY. 115 
 
 cation from the client to tlie attorney, but information from *^'"ici":uiu 
 the attorney to the client, informing him of the nature of Bell's wadswonh 
 title. It was information which, as an honast man, he was Lorangfr. 
 bound to give, and which he is now not only comj)etent but 
 bound to disclose. That a deed absolute in its terms, may be 
 proved by parole to have been intended by the parties to ope- 
 rate only as a mortgage, cannot admit of a doubt. {See St7-ong 
 et. ah, vs. Stewart, 4 J. C. R., 167; James vs. Johnson, 4'c., 6 
 J. C. R., 417; Van. Burenvs. Olmstead etah, b Paige, R., 9.) 
 
 The facts then being ascertained, and of these there can be 
 but little doubt, it only remains to apply the law ta the case^ 
 and in this there is little difficulty. 
 
 I must, therefore, declare that this deed, though absolute on 
 its face, is only valid as a mortgage for the security of the 
 loan from Bell to Laselle, and that Loranger being a purchaser 
 with notice, can take no greater interest than Bell had in the 
 premises, and that the complainant is entitled to redeem by the 
 payment of the amount due, which by the testimony of Law- 
 rence and Durocher, is proved to have been one hundred and 
 fifty dollars at the date of the deed. 
 
 As to costs, Loranger purchased with a knowledge of the 
 facts; he was wrong in refusing the money when tendered, 
 and by denying any knowledge of the nature of Bell's title 
 has put the complainant to the expense of proving his bill. 
 The complainant is therefore entitled to recover his costs.
 
 116 
 
 CASES IN CHANCERY. 
 
 Barnum 
 
 vs. 
 Bank of 
 Pontiac. 
 
 Hiram Barnum vs. The Bank of Pontiac. 
 
 First Circuit. Where an application was made, under the act of June 21, 1837, for an injunction against the 
 bank of Pontiac, and the bill alledged merely a demand and refusal on the part of the bank 
 to pay its notes, the chancellor refused to grant ihe injunction prayed for. 
 
 In the act incorporating the bank of Pontiac, the act of April 23, 1S33, is referred to, and, in ef- 
 fect, made a part of its charter. That act gives the bank 60 days within which to redeem its 
 notes; and the further provision that, that act shall not prevent the issuing of an injunction, 
 does not change the law respecting the granting of injunctions. 
 
 The act of June 21, 1S37, which provides that an injunction may be issued when any banking 
 institution shall refuse to pay its debts, is not imperative, but leaves it in the sound discretion 
 of the court, upon a proper case being made. 
 
 An injunction against a bank goes to prevent all action whatever, and is rather in the nature of 
 a final injuncUon which is sometimes granted at the termination of a cause, than the usual 
 injunction to prevent some particular mischief. 
 
 Except in cases where the bill is filed by a bank commissioner, showing fraud, violation of the 
 charter, or insolvency, courts of equity require notice of application for injunction; and also 
 require a case to be made that would auUiorize the court to wind up the concerns of the bank. 
 
 This was an application for an injunction. The facts of the 
 case are sufficiently stated in the opinion of the chancellor. 
 
 W. Hale and P. Morey, in support of the motion. 
 
 I. The charter of the bank of Pontiac, taken in connection 
 with the law of 1833, gave the court of equity full jurisdiction 
 over the bank, and authorized it to issue an injunction on an 
 application like the present. Laws of 1833, 529; also the laws 
 of the 2d, and extra session of the 6th legis, council of Michi^ 
 
 gan, 134. 
 
 The legislature, in passing these acts, clearly contemplated 
 a proceeding like the one now before the court. They either 
 supposed there was some law then in existence, providing for 
 such an application to chancery, or else by the law of 1833, 
 they specially authorized it. 
 
 If there was no law of that nature in force, the conclusion 
 is irresistible that the legislature intended this statute as intro- 
 ductory of a new law. The enactment cannot pass for no- 
 thing. If such a proceeding was not intended by the legisla- 
 ture, why do they provide that the injunction shall be dissol- 
 Ted upon payment of the debt and 20 per cent damages, and
 
 CASES IN CHANCERY. 117 
 
 that the bank shall be dissolved unless it pays such debt and First circuit, 
 damages; and also, that nothing in said act contained shall pre- ^•^'^^'""^^ 
 
 '-' * Barniini 
 
 vent an injunction being issued whenever any payment or de- RaJ,kof 
 mand shall be refused! ^""^'"'^• 
 
 The contrary supposition would show that the legislature 
 had, with uncommon prudence, been fortifying the banks against 
 a contingency which could never happen. 
 
 The bank received its charter, subject to the provisions of 
 the act in question. If any part of the act is obligatory upon 
 the bank, the whole of it must be. 
 
 It is a rule of law, as w^ell as of equity, and will not be con- 
 tradicted, that "a statute ought, upon the whole, to be so con- 
 strued, that, if it can be prevented, no clause, sentence, or 
 word, should be superfluous, void, or insignificant." Dwarris 
 on Stats., vol. 2, 658. 
 
 With the doctrine that the court of equity was, by this sta- 
 lute, invested with jurisdiction over the bank, this rule will ap- 
 ply, not otherwise. 
 
 It is likewise a maxim in law, that "every statute made 
 against an injury, gives a remedy, either expressly or implied- 
 ly." Id., 662; 2 Inst., 55. 
 
 "In statutes, incidents are always supplied by intendments; 
 or, in other words, whenever a power is given by a statute, 
 every thing necessary to the making of it effectual is given by 
 implication." 2 Inst., 306. 
 
 II. The ar.t of the 21st of June, 1837, gives to the chancel- 
 ior, in express terms, the power to grant injunctions against 
 any corporation, having banking powers, whenever it shall be- 
 come insolvent, or unable or shall refuse to pay its debts, &c., 
 such injunctidn may be issued on the application of the attor- 
 ney general in behalf of the state, or of any creditor or stock- 
 holder of such corporation, &c. 
 
 1st. The charter of the bank and the law of 1833, are per- 
 fectly consistent with this act. These acts are to be construed 
 in connection with each other. 1 Ke7it Coin., 463. 
 
 2d. It contemplates the issuing of an injunction on applied-
 
 113 CASES IN CHANCERY. 
 
 Firsu:;ircuit. ^[^^ ^f jjny bill holder, and in other cases, and gives the au- 
 thority to the chancellor. 
 
 3d. The act of June 21, 1837, being a new law, its consti- 
 tutionality may be questioned. But that position cannot be 
 maintained. It is not a law impairing the obligation of con- 
 tracts; it only prescribes a change in the remedy, or rather 
 gives the bill holder a remedy which he had not before. 
 
 In the case of the Attorney General vs. The Utica Insurance 
 Compamj, (2 Johns. Chan. Rep., 371,) a prosecution was com- 
 menced by the state, to restrain said company from issuing 
 paper money when incorporated only as an insurance compa- 
 ny, brought in January, 1817, by virtue of a statute passed 6th 
 April, 1813, no quo way^ranto had been issued. 
 
 By a joint resolution of the legislature, the attorney gene- 
 ral was directed to institute such legal proceedings as might 
 be necessary and proper for the purpose of dissolving the bank 
 of Niagara. A quo loarranto was filed in the supreme court, 
 and injunction was prayed to stay proceedings of said bank 
 till judgment of ouster; and the chancellor said the principles 
 of the Utica case would govern him. 
 
 Attorney general applied for injunction, March 28, 1825. 
 Hopk. Ch. R., 354, 362. 
 
 A new statute is passed April 21, 1825, authorizing the 
 chancellor to issue injunction, either on application of attor- 
 ney general or any creditor, to restrain and have receiver ap- 
 pointed, &c. The attorney general filed a bill, December 13, 
 1826, under this law, of April 21, 1825. Hopk. Ch. R., 591. ' 
 
 In the case of the State vs. The bank of Columbia, under the 
 act of April 21, 1825, an injunction was granted by the chan- 
 cellor exparte, on application of the attorney general, and also 
 several creditors in New York. 1 Paige R., 511. 
 
 III. This is a case where the chancellor should grant an in- 
 junction, wliich is a power to be exercised in his sound discre- 
 tion. 
 
 1. The statute gives the power, and of course contemplates 
 its exercise. 1 Kent Coin., 462. 
 
 2. It is a remedial statute passed for the public benefit, and
 
 CASES IN CHANCERY. 119 
 
 for the prevention of frauds. Statutes of this description First arcmt. 
 should be construed, so as to suppress the mischief and advance '^'J^^^^l^^l^ 
 the remedy. 1 Bl. Co7n., 87. " Such statutes as arc benefi- Bunk of 
 cial for the people, shall be expounded largel}^, and not \vith ^'""""'^• 
 restriction. G Jacob Law Diet., 123. 
 
 3. From the framing of this act, it was evidently the in- 
 tention of the legislature to impose extraordinary restraints 
 upon the banks, and give a speedy remedy. 2 Kent., 314; 3 
 BL Com., 431. Both a court of equity and a court of law 
 are equally bound and equally profess to interpret statutes ac- 
 cording to the true intent of the legislature. Fonh. Eq. B. 1 
 Ch., 1 sec. 3, note H.; 1 Chitty Com. Eq. Juris., 16. 
 
 4. Because the bill holder has not a perfect remedy at com- 
 mon law against the bank. 
 
 5. A case having been made out within the statute, the dis- 
 cretion of the chancellor ceases, and it becomes imperative 
 upon him to grant an injunction. 1 Paige R., 516. 
 
 If a statute says a thing maij be done, which is for the pub- 
 lic benefit, it shall be construed that it must be done. Dwarris 
 on Stat., 712. 
 
 Bates and Walker, contra. 
 
 First, it does not appear from the bill of complaint that the 
 bank refused to pay the bills issued contrary to the charter. 
 [See ckartcr of the bank, last clause; sec. 9, laws 1835, p. 139; 
 see act relative to banking institutions, revised laws, 1833, p. 529; 
 /aM;s 1839, 283, 311.) 
 
 Second. The charter of the bank is a contract within the 
 terms of the constitution of the United States, and having been 
 granted and accepted before the act granting this court juris- 
 diction, the legislature had no power to repeal, impair or alter 
 
 the charter against the consent, or without the default of the 
 
 corporation judicially ascertained. {See charter of the bank; 
 
 Const. U. S., art. 1, sec. 10; 4 Wheat. U. S. Rep., 518; 4 U. 
 
 S. Cond. Rep., 562, 570, 573, 576; 6 Cranch, 87, 136; 2 Bl. 
 
 Com., 441, 317; 9 Cranch, 43, 293; 1 Kyd on Corp., 14, 16; 
 
 Powell on contracts, 6; 6 Cranch. 87; 2 Kent's Com., 245, 246, 
 
 2b\2-;sTerm Rep., 540; 2 Johns. Ch. R., 380; 3 Cond. Rep., U.
 
 120 CASES IN CHANCERY. 
 
 pirgtcircuif. s., 262; I Paige Chan. Rep., 107; ^ngel and Ames on corp., 
 Barnum ^03; 2 CasBS in Chan., 165; 2 Fesey, 414; Ambler, 209; DicA:. 
 Bankof Rep., 599; 5 /o/in. C'/ian. R., 380.) 
 
 Third, The act of 1837, being inapplicable, the connplainant 
 must resort to his rennedy at common law, and this court at 
 common law, could not hear this motion, unless insolvency was 
 charged; 3 Term Rep., 244; 2 John. Ch., 390; 5 Johns. Ch. Rep., 
 380; an individual could not move in this matter; 6 Johns. 
 Chan., 46, 160. 
 
 Fourth, Granting the court has the full power, by the act 
 of 1837, does this bill make out a case under the act? The 
 power being discretionary, will the court, upon the complaint of 
 an individual, grant an injunction in the first instance ? 2 Johns. 
 Chan., 204; 6 John. Ch., 160, 48; 2 Johns., 144; 3 Alhyns, 200; 
 2 Vesey, 51; IP. Wms., 445; Mitford, 115; Cooper's Eq., 149; 
 6 John. Chan., 20; 1 Cox's Cases, 102. 
 
 Fifth, Is there sufficient proof under the statute "? [See Hopk. 
 R., 599.) 
 
 Sixth, The bill does not alledge that the bank had refused 
 the privilege of suspension act of 1837. 
 
 Seventh, If an injunction is granted, it will prejudice the 
 rights of other creditors, as they are not parties to the bill. 
 
 The Chancellor. — This application is founded entirely 
 upon the act of June 21, 1837. The bill alledged merely a 
 demand and refusal to pay. It contains no allegations of any 
 impending mischief, danger or hazard, of the rights of the com- 
 plainant. 
 
 It presents no one of the ordinary features required to au- 
 thorize this summary interposition, according to the general 
 principles of proceedings in chancery. 
 
 In the act of incorporation of the bank of Pontiac, the act 
 of April 23, 1833, is specially referred to, and in effect is made 
 a part of its charter. That act provides, if any bank shall not 
 pay its notes on demand, the charter shall not, for that cause 
 be dissolved, and gives such bank sixty days within which to 
 redeem its notes. It further contains a provision that that act 
 shall not prevent the issuing of an injunction. It may become
 
 CASES IN CHANCERY. V2l 
 
 necessarv to examine for what causes an injunction could liave '•'"■^'•^'""'i 
 been issued under that acl. i^rnum 
 
 Verv clearlv, the mere i)rovision lliat the "act sliould not ni.i.kof 
 
 J •' ^ ' Poniiae. 
 
 prevent the issuing of an injunction," does not change the law 
 or the practice of the court in this respect. 
 
 It may, therefore, be premised that the legislature contempla- 
 ted that a case should be made which would authorize the exer- 
 cise, according to the course and practice of this court, of this 
 summary interposition. 
 
 The act of June 21, 1837, which is relied upon in this ap- 
 plication, provides that an injunction mtnj be issued, when any 
 banking institution shall refuse to pay its debts. 
 
 It has been urged that the act last mentioned is imperative; 
 that whenever there is a demand and refusal to pay, the injunc- 
 tion must issue of course. To act upon this construction, 
 would lead to results so variant from the uniform course of 
 equity proceedings, ihat the court must pause before adopt- 
 ing it. 
 
 1. It would open the door to collusion. 
 
 2. It would almost invariably lead to unjust and inequitable 
 results. 
 
 If the construction contended for of the act of 1833, and the 
 act last mentioned, shall obtain, that an injunction must be 
 granted on demand and refusal, and that upon payment of the 
 amount claimed in the bill, and twenty per cent in sixty days, 
 the injunction shall be dissolved, the most probable result 
 would be, that the bank enjoined struggling lor existence, will 
 within the limited period, redeem the amount claimed by the 
 bill, although by doing so it would be unable to pay the re- 
 maining creditors of the bank; and this under the direction of 
 the court. But it is slill bound by the statute to become an 
 accessory in enforcing this unjust distribution. 
 
 There are other objections to which this construction would 
 lead. From the statutes and from the settled practice, a legal 
 discretion in this as in other cases, rrjust be exercised. This 
 being granted, how shall this be done, or rather what rule, ap- 
 plicable alike to all cases, shall be adopted. In view of the dif- 
 
 VoL, I. 16
 
 122 CASES IN CHANCERY. 
 
 First Circuit, ficulties and consequences which have been before alluded to, 
 carnum I Know of DO better rule than the usual test, that where an in- 
 
 Pontiae. 
 
 Bimkof junction is asked, in the first instance, to require that a case 
 shall be made showing immediate danger or some impending 
 mischief. From this it will follow, that the application in this 
 case must be denied. 
 
 It has been contended that the act of 1837, is so far ex joost 
 facto in its operations; that it must be regarded as unconstitu- 
 tional, and therefore of no validity so far as regards the banks 
 subject to the law of April 23, 1833. After arriving at the 
 conclusion before stated, it may not, perhaps, be necessary to 
 consider that question. 
 
 Without saying that it is unconstitutional, and I am as yet una- 
 ble to come to that conclusion, it is for the present sufficient to 
 say, that it would operate with great severity upon the banks, 
 and with great inconvenience to the public, if the act of 1837, is 
 regarded as imperative, if an injunction must issue at all events 
 when a bank shall refuse to pay any one of its notes. 
 
 It is stated by the; chancellor, in the case cited in Hopkins 
 R., 591, that these are rather in the nature of the final injunc- 
 tions that are sometimes granted at the termination of a cause, 
 than the usual injunctions to prevent some particular mischief. 
 An injunction against a bank goes to prevent all action what- 
 ever. It is, for the time being, an utter prostration of all its 
 powers. Hence, except in cases where the bill is filed by a bank 
 commissioner, showing fraud, violation of the charter or insol- 
 vency, courts require notice, and proceed with caution. And 
 it seems to me that it is not too much and is consistent with 
 the discretion which the court is bound to exercise, to require 
 such a case to be made, as would authorize the court, if it prove 
 true and according to the exigency of the case, to wind up the 
 concern, and make an equal distribution of the assets among 
 all the creditors. 
 
 This may be made out by immediate pending insolvency, 
 and therefore danger to all the creditors; or such danger of 
 a misapplication of the funds belonging to the bank as would
 
 I'onliac. 
 
 CASES IN CHANCERY. 1'23 
 
 require the interposition of the court lor the safety of its ere- First circuit. 
 
 dltOrs. iSuriium 
 
 The decision upon tlie other points made in the argument, uJikof 
 as well as the point last referred to, and also upon what pre- 
 cise state of f\\cts this court would feel itself bound to proceed 
 and wind up this or any other bank, will be more appropriate 
 when the case shall have been heard upon the presentation of 
 such facts before it. 
 
 Motion denied.
 
 124 CASES IN CHANCERY. 
 
 Richard McMurtrie and another vs. John Ben- 
 
 JVETTE and others. 
 
 Thiril Cir- Courts of equity do not, as a matter of course, decree specitic"performance of contracts, but 
 cuit. e\ercise a discre"ionary power, upon a view of all the facts of the case ; and this discre- 
 
 tion must not be arbitrary and capricious, but regulated on grounds that will render it ju- 
 dicial. 
 The contract or agreement fought to he enforced, must be mutual, and the lie reciprocal, or 
 a court of equity, will not enforce a performance. 
 
 The contract, in order to be enforced, must be certain in all its eesentiiil particulars. 
 
 If a party sets up part performance, to take a case out of the statute of frauds, he must show 
 acts une(iuivoc;iIlj referring lo, and resuUing from that agreement, sflch as the party would 
 not have done unless on account of that very agreement, and with a direct view to its per- 
 formance; and the agreement set up must appear lo be the same with the one partly per- 
 
 ■ formed — there must be no uncertainty or equivocation in the case. 
 
 The ground of the interference of courls of equity to enforce specific performance, is not simply 
 that lliere is proof of the existence of a parol agreement, bU that there is fraud in resisting 
 the completion of an agreement partly performed. 
 
 It seems now to be held, that the payment of the iclioh of the purchase money, clearly in pur- 
 suance of a definite and mutual parol agreemei.t is sufficient totaltethc case out of the sta- 
 tute ; but it has uniformly been held that the payment of a trifling auio\.nt of the considera- 
 tion, is in no case of itself sufficient. 
 
 The bill in this case was filed to compel the specific perfor- 
 mance of a parol agreement to convey land. 
 
 The bill states that John Bennette, one of the defendants, in 
 a conversation had with complainants, in the month of i\'iay 
 or June, in the year 1834, verbally agreed to sell and convey 
 to the complainants a certain lot of land, containing eighty 
 acres, for the sum of one hundred and fifty dollars, a part to 
 be paid in money, and the remainder in a certain order drawn 
 upon a man in the state of New York; that complainants paid 
 Bennette, at the time, four dollars; that a deed was soon to 
 be made for the premises; that instead of reducing the agree- 
 ment to writing, Bennette gave the complainants the dupli^;ate 
 receipt for the land, which he had received at the time he pur- 
 chased the land of the government, saying, at the same time, 
 that that receipt was as good as an article, for he, Bennette, 
 could not sell the land without it; that Bennette put complain- 
 ant in possession, and he had made improvements, <fec., that
 
 CASES IN CHANCERY. 125 
 
 afterwards Bennclte made a deed to comphdnants of ilic pre- '^^''^'^S'" 
 miscs but did not deliver it; that about a week aflc-rvvards, ^-*^-'-*fe^ 
 Bennettc sold and conveyed the land to deleiidant, JuiDcson, ro. 
 throu<'-h his, Jameson's. a;jcnt, Powell Grover, one of the de- 
 fendants; that Grover knew of the previous sale by Bennette, 
 to complainants, when he purchased for Jameson; the com- 
 plainants offered to perform the contract on their part, and de- 
 manded a deed. 
 
 The bill further stated that Jameson had deeded the prcmi- 
 mises to Grover, and prayed adccrcc for spec'fic performan- 
 ces, and also contained a prayer for other relief, &c. 
 
 The answer of Grover admits the bargain between Bennette 
 and complainants, but denies that the four dollars was paid 
 towards the land; states that the four dollars was borrowed by 
 Bennette, gnd that he had offered to repay it; admits that 
 Jameson offered to purcliase the land of Bennette, in June, 
 1834, in his presence, and that Bennette told him that he had 
 made a contract or bargain for the lands with complainants; 
 admits his being Jameson's agent, to purchase the land, in case 
 the same should not be conveyed to complainants; states that 
 Bennette called on Grover. .lune 24, 1834, and stated, that 
 complainants had not con)[)liGd with their contract to purchase 
 the land, and that Bennette tlicn ullcred to sell the land, and 
 that he, Grover, purchased it for Jameson; that he inquired of 
 complainants respecting their agreement to purchase, and their 
 answer satisfied him that they had abandoned the contract; 
 admits the deed to Jameson, and its record, and also the im- 
 provements by complainants; admits th it he purchased from 
 Jameson, March 4, 183G. for S500; denies any knowledge of 
 complainants' having any equitable title at the time he pur- 
 chased from Jameson, and claims the benefit of the statute of 
 frauds. 
 
 The cause was heard on bill, answer and testimony. . 
 
 J. W. Jewett. solicitor for complainants. 
 J. H. Preston, for defendants.
 
 cult. 
 
 McMuririe 
 
 vs. 
 
 Bennetts. 
 
 126 CASES IN CHANCERY. 
 
 ThirdCir- r^^^ Ghancem.or. It, is iiot. a matter of course to decree 
 specific performance of contracts. It requires a sound discre- 
 tion, upon a view of all the circumstances, and this discre- 
 tion must not be arbitrary and capricious, but must be regulated 
 upon grounds that will make it judicial. Seymour vs. Dclancy, 
 6 Johns. Ch. Rep., 222; same case, on appeal, 3 Cowen, 505. - 
 
 The contract or agreement sought to be enforced, must be 
 mutual, and the tie reciprocal, or a court of equity will not 
 enforce a performance. 1 Mad. Ch., 423; 1 Johns. ^Ch., 
 282, 378. Here the contract rests entirely in parol. The 
 letter given in evidence, is too uncertain to form the foun- 
 dation of any proceeding; it specifies no land,^nor any price, 
 and nothing can be drawn from it, as referring to the land m 
 question. 
 
 The contract, in order to be enforced, must be certain in 
 all its essential particulars. There is none of that certainty 
 shown in the contract or agreement here sought to be enforced, 
 which is necessary to enable this court to decree a specific 
 performance. 
 
 If a party sets up part performance, to take a parol agree- 
 ment out of the statute, he must show acts unequivocally re- 
 ferring to, and resulting ixom that agreement; such as the 
 party would not have dnoR, nnlcss on account of that very 
 agreement, and with a direct view to its performance; and the 
 agreement set up must appear to be the same with the one 
 partly performed. There must be no equivocation or uncer- 
 tainty in the case. 
 
 The ground of the interference of this court is not simply 
 that there is proof of the existence of a parol agreement 
 but that there is fraud in resisting the completion of an 
 agreement partly performed. Phillips vs. Thompson, 1 Johns. 
 
 a R. 131. 
 
 If this case can be sustained at all, it must be on the ground 
 of part performance, for there is clearly no such written con- 
 tract or ac:reement as can be enforced by this court. 
 
 The question then recurs, was there such a specific, definite 
 verbal contract as can be enforced, and has there been such a
 
 CASES IN CHA^X'ERY. 127 
 
 part porrormancc, and readiness to fulfil, on the part of the Thiru cir- 
 complainants, as will take this case out of the operation of the .^"^'-^^^ 
 statute of frauds, and render it the duty of this Court to de- ^J'^-^i<"^"-;« 
 cree a specific performance ? It seems to me not. The im- ^•^"'"=«'=- 
 provement I regard as out of tiic question, so far as that may 
 be sought to make a part of the performance and fulfilment. 
 It is pretty clear, that whatever was done in this way, was 
 not done until after the conveyar.c-; to Jame>on, and it was 
 only done with a view to its effect upon these proceedings. 
 From the testimony of Green and Sewel, confirmed by the 
 other witnesses, it is to be inferred that the-re was a parol con- 
 tract for the sale of the land in question; but this, it is equal- 
 ly apparent, must have been conditional; that is, that the de- 
 fendant, Bennette, would c nvcy the lond u,>on f:f ndition that 
 the complainants would pay to him the purchase price. There 
 was no snch mutual undertaking on the part of the complain- 
 ants, as would have enabled Bennette to compel them to pay 
 the money at any definite time. But it must be inferred 
 that the agreement was to convey the land upon the return of 
 Bennette from Jackson, if they would then pay him the consi- 
 deration. 
 
 Th-'re is some di ;crepancy as to the intention of the pay- 
 ment of the four dollars. But, I am inclined to think, that 
 both parties intended at the time, that this should apply in part 
 payment. 
 
 It has been held, that even full payment of the purchase 
 money, is not sufficient, of itself, to take a case out of the sta- 
 tute. 1 Maddochs' Ch., 381; and note {>■). 
 
 But I am inclined to think the better ojjinion now is, that 
 the payment of the whole of the purchase money, clearly in 
 pursuance of a definite and mutual parol agreement, is sutfi- 
 cient to take a case out of the statute. But, I believe it has 
 uniformly been held, that the payment of a trifling amount, as 
 was the case here, is not, of itself, suflicient. Indeed, if this 
 were permitted in a case like the present, it would defeat all 
 the beneficial objects of the statute. But this application of 
 the four dollars must, in the nature of things, iiave been con-
 
 128 CASES IN CHANCERY. 
 
 T:iirdc;r- linofciit; that is, upon condition that the complainants, enti- 
 
 cu:t. ° . 1 , 1 1 r • 
 
 K^-^^-'t^ tlud themselves to a conveyance ol the hmd, by pertorming, 
 
 McMunre q,^ jj^^.jj. p^-j,,,^ jjy ^j-jq payment. of the balance of the pur- 
 
 Ecnneitc. i ™, „ ,, 
 
 chase money. 
 
 The ground on which the Court acts at all, in these cases, 
 is fraud, in refusing to perf-rm afler performance by the olher 
 party. The allowing any other construction upon the statute 
 of frauds, would be to make it a guard and proteclixsn to fraud. 
 1 Maddncks Cli., 378. This is'"the rule laid down in the 
 books, and it is the true one. Let us apply it to the case 
 before us. Here js not only an absence of all n[)pearance of 
 fraud, but of all temptation to commit it. It appears that 
 Bennctic had waited for the performance of com[)lainants, away 
 from homo for a considerable titnc; that he had done ail on 
 liis part; 'hat he was ready to make the compl.iinants a title; 
 that, on the day on wliich a con\cyance was made to Jame- 
 son, he applied to one of the complainants, and then stated, 
 that he had waited four weeks for them; but that, if they 
 would then fulfil the contract, he would not convey to Jame- 
 son; and he finally sold the land for five dollars less than, ac- 
 cording to the bill, he was to liave received of complainants. 
 
 It is true that the complainant, Henry, replied that he was 
 ready to fulfill on his part, but he offered no [jayment nor made 
 any definite suggestion as to any payment. This was merely 
 keeping the word of promise to ilie car, and after so long a 
 delay, might have justly been tn-ated by the defendant Ben- 
 nett, as such a failure to fulfill, on the part of "complainants, as 
 would absolve him. In. the -absence of all fraud and all temp- 
 tation to comnnt fraud, I can see no other w\ay of treating this 
 matter. What other course was left '( It would have been, 
 hard, indeed, to hold him longer in this state of uncertainty; it 
 would be more severe, alter the lands have been conveyed to a 
 bona fide purchaser, and expensive improvements made by 
 others, still to decree a specific |)erformance. 
 
 I do not perceive any ground to impute fraud 'or unfairness 
 to the defendant Grovcr, in this transaction. He swears po- 
 sitively it was purchased for Jantieson and with his money;
 
 McMurlrie 
 
 rs 
 Denneite. 
 
 CASES IN CHANCERY. 129 
 
 that he left the agency with him because he could not remain '^''•'jfij^''- 
 so long from home. Il appears, loo, that Jameson owned ad- 
 joining lands. Grover manifested no great anxiety tu purchase 
 but it was placed on the ground that he would lake it lor Jame- 
 son if the McMurtries failed to pay. It is true Grover sub- 
 sequenily purchased this and the adjoining tract of land, but 
 at an advanced price. Judges, of late, have regretted that 
 the cases have gone so far in pormitling part performance to 
 take a case out of the statute, and have said that the courts 
 ought to make a stand against further encroachments upon the 
 statute of frauds. In these views I concur. Unless a stand 
 is made, all the salutary objects of the statuie will be lost sight 
 of. Some other points were made in the argument, which are 
 not necessarily involved, and perhaps I have already gone far- 
 ther than is necessary; as, after all, the case turns principally, 
 on the entire absence. of fraud on the part of the defendants, 
 and the non-fulfillment on the part of the complainants; there 
 is such a want of certainty and mutuality in this contract 
 that it cannot be enforced. The complainants have failed to 
 fulfill on their part. Decreeing a specific performance is an 
 exercise of the powers of this court not ex debilo j.uslicice, but 
 to be exercised upon a full view of the whole case. There 
 being an entiie absence of fraud, and, so far as can be ascer- 
 tained from the case, the failure of the contract having been 
 caused hy the non-fulfillment of the complainants themselves, 
 they have not made such a case as calls upon this court to in- 
 terfere and decree a specific performance, but that the parties 
 should be left to their remedy at law. The bill must be dis- 
 missed with costs. 
 Bill dismissed. 
 
 -V: \ad 
 
 Vol. I. n
 
 130 CASES IN CHANCERY. 
 
 Hyacinth Bernard dit Lajore vs. the heirs of 
 Antoine Bougard and others. 
 
 Firs' Circuit. Af er a confirmation of aclilin to land liy tlie hoard of Innd commissioners, under the act of 
 ^^^T--^-^^ If'i'J, and patanis?iicJ, if competent at;. 11 lor ihis c art lo go l)eliind llie patent to settle con- 
 
 BernarJ flicfing claims, it should ..nly be done upon the clearest and most Irrefragable proof. 
 
 Boa*arJ. A resulting trust only exists wliere the actur.l payment of the purchase money is clearly and 
 distinctly proved. Payment of a part and not the whole, will not raise a resulting trust. 
 
 The bill in this case slated, that in January, 1793, Hyacinth 
 Bernard dit Lajore and one Antoine Bougard took possession of 
 and settled a certain tract of land on the north side of the River 
 Raisin, in the county of Monroe, contaimng five hundred and 
 sixty arpents, being four hundred and eighty-six acres; was 
 taken possession of jointly, aud for their joint benefit, and was 
 possessed and used in common. While so possessed, they, at 
 their joint expense and for their mutual benefit, made perma- 
 nent and extensive improvements. They continued the occu- 
 pancy and improvements till March 3, 1807, and long subse- 
 quently; and the same was by them invariably considered 
 held, improved and enjoyed as their common property. That 
 about the time last aforesaid, they came to a resolution of ma- 
 king a partition, and they agreed to divide the land as follows, 
 viz: the easterly half to complainant, the other to Antoine. 
 Ever after the division, the easterly half was always taken as 
 the separate property of complainant, and treated by both as- 
 such. 
 
 That from the time of said partition till Antoine's death, 
 complainant occupied and enjoyed the easterly half in his own 
 right, exercised acts of ownership over it, and that his title was 
 never disputed. 
 
 That complainant and Aij'^'ine beingignorant and not aware 
 of the course to be taken t :,-^b;jin a confirmation of their title, 
 neglected to prefer their cjtiiin, until 1821, when some person 
 advised ihem to put in their claim; that they did so under the 
 act of May Hth, 1820, that they both prepared to go to De-
 
 CASES IN CHAxXCERY. 131 
 
 troit for that purpose, but at the suggestion of some one, it First circuu. 
 was proposed, to save expense, tlial the whole hinds should be ^T^'^^"^ 
 confirmed to one, and that that one should convey to the Bou'ard. 
 other. 
 
 Accordingly Antoine went to Detroit, made his claim, and 
 had it allowed, and it was confirmed to him by congress; the 
 expense to be defrayed equally. The conunissioners acting l)y 
 virtue of the act of February 21st, 1823. confirmed the claim. 
 Possession continued by complainant until 1829, and that he 
 often called to see if ihepalerU had ariived. Before patent was 
 received, Antoine died. 
 
 That the day previous to his death, in 1828, Antoine called 
 his children, or a part of them, and informed them of com- 
 plainant's right in the land, and enjoined them to make a deed. 
 Congress confirnied the claim in 1828 or 1829. When the 
 heirs were called upon to make a deed, they did not deny the 
 right of the party, but professed their willingness to make a 
 deed when they should receive the patent. 
 
 That after Antoin(;'s death, complainant held and enjoyed 
 the land until sometime in the year 1829. when Antoine, one 
 of the heirs, conceived the design of djiVauding; sold or agreed 
 to sell to H. Di.sbrow, ih^ undivided fifth part of said entire 
 tract of land; that Disbrow had full previous knowledge and 
 notice on the 5th April, 1829. In the deed to Disbrow, it is 
 recited that the patent had not anivecJ. 
 
 That Alexis Bougard also agreed to sell to Disbrow, on the 
 28lh of May, 1829; that Disbrow, with full notice, received a 
 deed, also reciting that the patent had not arrived. 
 
 Therese Nuvane and her husband, Alexis dit Plat Nuvane, 
 on the 13th June, 1830, also agreed to sell to Disbrow, with 
 full notice. 
 
 Bill charges each of the heirs wit!) full knowledge and notice, 
 before selling, or granting their deeds. 
 
 Also, charges that Disbrow had full knowledge and notice at 
 the time of contracting, receiving deed or paying money, nnd 
 accepted of the deed with this knowledge, and stating that Dis- 
 brow surreptitiously and illegally got possession of the lands.
 
 Bernard 
 
 vs. 
 Bougard. 
 
 isa CASES IN CHANCERY. 
 
 Firstcircuii. That Hyacinth Bernard, as heir, intending to defraud, and 
 having notice thereof, &c.. on the 29th February, 1830, made 
 an agreement with Robert Clark, for one-fifth part of the entire, 
 who made a deed therefore. 
 
 That Manigue Mernard and her husband John Mune Mer- 
 nard, with notice, sold to said Clark, their interest, on or about 
 the 4th February, 1830. Deed given. 
 
 Bill charges Clark with full notice, at the time of both these 
 purchases. 
 
 ■ Charges that in 1829 or 1830, ihe patent was issued either 
 to the deceased or some one or more of the heirs, but cannot 
 state the particulars of the patent, as the heirs have it. Re- 
 quires its production. 
 
 1. The defendants plead in bar the statute of frauds to all 
 matters, touching the claim of the complainant, not in wri- 
 ting; and, 
 
 2. By answer deny all knowledge, belief, &c., of the pre- 
 tended purchase from the Indians by complainants, and deny 
 the pretended joint occupancy, improvement, and partition; 
 deny all the material allegations contained in the bill; and 
 Clark and Disbrow deny notice, &c., before their purchase of 
 complainant's claim. The defendants, in their answer, insist 
 that Antoinc Bougard, senior, alone purchased of the Indians, 
 or otherwise took possession of the whole premises in question, 
 in his own right, and for his excltisive benefit, about the time 
 mentioned in the bill, and continued to occupy the same, either 
 by himself or his tenants, up to 1807, and to the time of his 
 death in 1829; that he claimed the same as his own, and at 
 all times denied the claims of al! others. 
 
 The cause was heard on bill, answer, and testimony. 
 
 A. D. Fraser, solicitor for complainant. 
 
 This bill is brought to enforce the execution of a trust, to 
 ■which the defendants have put in a plea, setting up the statute 
 of frauds, and denying. that it was created by writing. The 
 ease made by the bill is that of a trust, arising by implication
 
 CASES IN CHANCERY. 133 
 
 or construction of- law, and is expressly excepted from the Firs-circuit, 
 operation of the statute relied on, by the 13lh section, (laws^'^^^'^'^ 
 
 ^ •> ^ Bernard 
 
 of 1819, p. 118;) and may be proved by parol, even in op- j.^^'\^^ 
 position to the answer of tiic defendants denying the trust. 
 The statute was never held to apply to such a case. Wray 
 vs. Steele, 2 Ves. <^ Bearn's, 388; Finch vs. Finch, 15 Ves., 45; 
 AHorneij General vs. Fowler, 15 Vesey, 90; Jeremy's Equity, 
 88. 
 
 • The complainant's case does not rest nor depend upon the 
 promise or arrangement between them, as to the manner of 
 forfeiting the title, but rests upon the previous equity of the 
 case. The promise all edged, is only an additional ground of 
 equity. It is the occupation and improvement of the property 
 by the complainant, that constitutes his equitable title, and 
 gives him a right to confirmation under the several acts of 
 Congress on this subject. Hutchins vs. Mannington, 1 Vesey, 
 3G6; Boyd vs. McLean, 1 Johns. C. R., 582; 2 P. William's, 
 548; 1 Johns. Cases, 153; Dcconcher vs. Savatier, 3 Johns. C. 
 JR., 21G; Strickland vs. Jlldridge, 9 Ves., 518; Livingston vs. 
 Livingston, 2 Johns. C. R., 539; Jackson vs. Martsdorf, 11 
 Johns. R., 90. 
 
 If the deceased did not intend to take the deed as a trust, 
 and convey to the complainant, he obtained it in fraud, and, on 
 that m-ound, he is entitled to have the trust carried into effect, 
 notwithstanding the statute. Roberts on fraud, 102; 1 Comyns' 
 Dig., 361, 485; 1 Madd., 239-240, 299. 
 
 It is a clear rule, that where A. purchases in the name of B., 
 the former paying the consideration, B. is a mere trustee, not- 
 withstanding the statute of frauds. Jeremy's Eq., 85. So, if 
 an agent locate lands for himself, which he ought to locate for 
 his principal, he is in equity a trustee for his principal. 2 Cond. 
 Eng. Ch. R., 339. It is equally well settled, that all persons 
 coming into possession of trust property, with notice of the 
 trust, shall be considered a trustee, and bound, with respect to 
 that special property, to the execution of the trust. 1 Cond. 
 Eng. Ch. R., 309; 1 Johns. C. R., 566. 
 
 H. T. Backus, solicitor for defendants.
 
 134 CASES IN CHANCERY. 
 
 Fjrstcircuit. Thg defendants insist that the complainant is not entitled to 
 
 Bernard I'Sliei ; 
 
 vs. 
 Bougar.1. 
 
 I. Because the complainant has failed to make out his case 
 as stated in the bill. 
 
 II. Were all the averments in the complainant's bill true, 
 still he could not have the relief prayed for, or indeed any re- 
 lief, and especially so under the evidence in the case, because 
 neither party acquired any right by Indian purchases. The 
 title and right of the premises was in the United States, by 
 right of sovereignty, and also of cession from the several states. 
 The Indians had no assignable interest, a mere right of per- 
 sonal occupancy, as has been expressly decided. Johnson vs. 
 JMcIntosh, 8 Wheat., 543. Had the Indian light been other- 
 wise, the pretended purchase would be a nullity; for no right 
 or title to real estate could be acquired by parol in the old 
 North-west territory, even j^rior to the statute of frauds. 
 Lindsley vs. Coates ; 1. Ohio Rep. 113. The fundamental or- 
 dinance of 1787, ^rt. 1, prescribed the only mode of transfer- 
 ring real estate, or any interest in it. And the rules of pro- 
 perty are the same in equity as at law. Gilbert, law of uses, 
 39. Where a deed is necessary, before the statute of frauds, 
 to pass a legal estate, a deed is likewise necessary to pass an 
 equitable estate, and the same formalities are requisite in the 
 case of a will, or other instrument, to pass an equitable estate, 
 as to pass a legal estate. Gilbert, law uses, 7, 7; Bac. Jlbrgt. 
 Tit. uses and trusts, 91; Jldlington vs. Can., 3, Atk., 151; 2 
 Jltk. 37. 
 
 The occupation and possession of either, or any party, was 
 a wrong, a mere trespass on the property of the United States; 
 they were mere wrong doers, and as between those in equal 
 wrong, there is no equity, 2 Pow. on Cont., 150-1. Any act 
 of either of the parties touching the premises in question, was 
 a mere usurpation, and but for the act of congress of 1807, 
 could by no possibility have been the foundation of any right 
 whatever. 
 
 That act is the foundation of all pretense of right in any one.
 
 CASES l^ CHANCERY. 135 
 
 Land laws, 271. And the j-ight and title of the defendants is Fireicircun. 
 in virtue of that act, and the several acts extending; its opera- ^'^^^^"^ 
 
 o r Dernard 
 
 tion, and confirming the proceedings of the commissioners. BoJ^rd. 
 These acts made that, the foundation of the right which was 
 before a wrong, a mere naked trespass on the property of the 
 United States. 
 
 This act pointed out the mode by wiiich this mere wrong 
 (by the mere bounty of the government,) might be made the 
 foundation of a claim of right, and that right perfected into a 
 legal title to the premises; but the consummation of this claim 
 or incohate right in individual cases, depended on the previou 
 proof of certain facts, to wit: possession, occupation and im- 
 provement from, or previous to the year 1798, up to the third 
 of March, 18t)7. No possession that did not extend to the 
 third of March, 1807, nor any possession, &c., after that time, 
 could be the foundation of any right under the act in question. 
 Whoever did not, in fact, on the third of March, 1807, occupy, 
 possess, &c., the land claimed, or claim under some one who 
 did, had no shadow" of right, either equitable or legal, and 
 could have none. Of these facts the commissioners were the 
 judges, and by the terms of the act in question, they were to 
 determine claims on an equitable and just basis. And of the 
 existence of the facts requisite to support the right claimed by 
 any individual, the decision of the commissioners must be 
 deemed conclusive. 1st. As no right, equitable or legal, could, 
 by a possibility exist, or be perfected in any one but by the 
 previous proof of these facts, and by the express teim of the 
 act, none but the commissioners couJd take this proof. And 
 2d. Because the decision of the commissioners has been con- 
 firmed by congress, the donors of this mere gratuity. 
 
 In the present case, then, the commissioners have decided 
 and congress has confirmed that decision, that the land in ques- 
 tion justly and equitably, in the spirit of the act of congress, 
 belonged to Antoine Bougard, under, and from w'hom the pre- 
 sent defendants claim. 
 
 And whoever claims the land in question, or any part of it, 
 must deduce that claim through him; not by controverting the
 
 136 CASES L\ CHANCERY. 
 
 Firstcircuit. facts Oil which his, Bougard's, claim and title to the land rests, 
 '"iT^''^ for that would unsettle the claim itself, and leave it doubtful 
 
 Bernard 
 
 Bougard. whcther it belongs to any one. 
 
 And as to any claim or right, not deduced from, and resting 
 on, not only the validity of the claim, and right of Antoine Bou- 
 gard, but the truth of the facts upon which that claim was con- 
 firmed, as required by the act of congress, there is no equity 
 about it. It rests upon the mere fact, has the act of congress 
 been complied with, in relation to that claim 1 If not, the 
 claim is, for all legal purposes, a void o»e; for in such a mat- 
 ter, the act of congress is not only the sole foundation of all 
 right, but itself provides the exclusive means of securing such 
 right. Wilson vs. Mason, 1 Cranch., 101. In other words, if 
 this court can, as to the facts on which the claim itself rests, 
 go behind the decision of the commissioners, and the confirma- 
 tion of congress, and if they should there find those facts un- 
 true, and that Antoine Bougard had no right to a part of the 
 land in question, because of him, the facts were not true, that 
 gave the right under the act of congress; cui bono? the only 
 legal consequence of such a course, and such results, would be 
 to find that one half of the land in question belongs not to the 
 complainant, but to the United States. Not to the complain- 
 ant, because he has never complied with the requisitions of 
 the act of congress, upon which all right, either legal or equi- 
 table, must depend, by presenting and proving his claim, as 
 that act requires. If the United States, in the distribution of 
 their mere gratuities, have been either wronged or deceived, 
 they alone can correct the evil; this court cannot^ for the plain 
 reason that the United States have never authorized it to de- 
 cide upon the facts that entitle to that gratuity; but on the 
 contrary, that duty has been imposed on commissioners of 
 their own appointing, clothed with full power for that pur- 
 pose, and whose acts in the rhatter have been confirmed. But 
 again, the acts of congress, giving the right, and the iifieans of 
 consummating that right, have expired by their own limitation; 
 no claim or proof of claim can now be made. Should then, 
 this court distinctly find that the facts necessary to sustain tha
 
 CASES IN CHANCERY. 137 
 
 original claim of Bougard, never did in tiuth exist, (or which Firstcircuit. 
 is the same, that they were true in relation to the complainant,) ^^P'^^ 
 the claim of the complainant cannot be now established or con- ^o"' j. 
 firmed in this court, for these reasons: it is obvious this court 
 can make no decree whatever, in favor of the complainant, since, 
 in the construction of statutes, equity fallows the Jaw. Lessees 
 of Talbot vs. Shnpso7i, Pet. C. C. R. 188. And all the cases re- 
 ferred to by complainant, in which a court of chancery has in- 
 terposed, and gone behind the legal title, is where each party 
 respectively, in relation to his own separate claim, has pur- 
 sued all the appropriate steps pointed out by the law for the 
 consummation of that claim, (or at least has pretended so to 
 do,) as Bodhj et al vs. Taylor, 2 Cond. U. S. Rep., 227; Tay- 
 lor and Quarks vs. Broion, Id. 235. 
 
 III. The complainant most clearly then, can found no claim 
 for relief in controverting the facts on which the existence of 
 the right itself depends, that is the subject matter of his claim. 
 By the facts in the case, it is evident that up to the year 1821, 
 when steps were first taken to acquire a legal right to the 
 premises, even Bougard himself had no permanent, much less 
 exclusive, right in the premises; nothing but a mere possibility 
 under the act of congress, dependent on the previous proof of 
 the requisite facts before the commissioners. Up to that time, 
 then, no ground of equitable jurisdiction existed. Both the 
 complainant and Bougard were on equal ground; neither had 
 the legal title, and either might apply for it. From this time, 
 at least not before, all equities must originate, if any exist in 
 the case, for no equity can be built upon a mere equity; an 
 equity can only exist in relation to some legal right. And so 
 is the case made by the complainant, if it be any thing, that 
 in the year 1821, a pretended stipulation or agreement was 
 entered into between him and Bougard, that for their joint be- 
 nefit, the premises should be claimed and the legal title pro- 
 cured, in the name of Bougard, in trust, to convey one half to 
 the complainant. Of this pretended agreement, the complain- 
 ant now seeks to compel an execution; to this the defendants, 
 first denying any such pretended agreement, object: 
 Vol. I. ' 18
 
 138 CASES IN CHANCERY. 
 
 First circuit. 1. Ihat the action of the commissioners, both as to the right 
 and the evidence of the right, is conclusive, and especially 
 so, since the conformation by congress. 7 Wheat., 28, 237; 
 Strother vs. Lucas, 12 Pet., U. S. R., 413. And this court are 
 in no wise authorized to revise those proceedings, nor by a 
 possibility conid such revision be productive of any benefit to 
 the complainant. 
 
 2. Had the complainant a valid claim, as against Antoine 
 Bougard or his children, yet the real defendants, Disbrow and 
 Clark, are bona fide purchasers without notice, and as such, 
 will be protected, and equity can give no assistance against 
 them. Frost vs. Beclitnan, 1 Johnson, Ch., 300; 9 Ves., 24. 
 But had the defendants had full notice of the pretended claim 
 of the complainant, it would in no wise have varied their 
 rights or altered the case, for the claim itself, by complain- 
 ant's own showing, is a mere nullity, and in the language of 
 Lord Mansfield, had the defendants known of it,_ they would 
 also have known it was void. Wilson vs. Mason, 1 Cranch., 
 70, 100. As every man is charged with a knowledge of the 
 law. 1 John. Ch., 516; J. yon vs. Richmond, 2 John. Ch., 
 
 51, 60. 
 
 3. If any such agreement as that contended for by the com- 
 plainant, were in fact made and entered into, yet the same 
 was null and void. 1. As being contrary to the policy of the 
 law, and in fraud of the act of congress, an agreement not 
 only to deceive the commissioners, but to obtain the title to 
 the premises by false pretences and absolute falsehood, and all 
 acts or agreements in fraudem legis, or contrary to the policy 
 of the law, are prohibited and void. The William King, 2 
 Wheat., 148, 153; 4 Pet. U. S. Rep., 441; 4 Johii. Ch., 254; 
 2 Ohio, 510; 6 John. Rep., 194; 8 Johii., 444. But 2. If the 
 complainant's own story be true, he entered into a stipulation 
 and agreement with Antoine Bougard, to commit, or procure 
 to be committed, actual perjury, in the proof of the claim be- 
 fore the commissioners, and he himself aided in the commis- 
 sion of that positive crime, for as he would now have this 
 court believe, he himself procured witness, (so his bill and evL-
 
 CASES IN CHANCERY. 139 
 
 dence slate.) to swear that the premises in question, were First circuit, 
 tlie lawful claim of Antoine Bougard, which, by his present ^"^^^^^^ 
 case, he seeks to disprove; and the maxim both of equity and cougard. 
 law is, ex tui-pe contractu non oritur actio. 1 Bac. Jlbst., Ill; 
 2 Binn., 101, and cases there referred to; 4 Ves. Jr., 811; 8 
 Ves. Jr., 51; 2 Eq. Ca. 20; Gilberts Eq. Rep., 153. And 3. 
 To any such agreement as that the complainant now seeks to 
 enforce the defendant's plea, is a conclusive bar, and the same 
 is void by the statute of frauds. Stat. 1820, 112, 425. It is 
 an express trust, if any thing, by parol, and therefore void. 
 It is not an implied trust, or a trust in any way resulting by 
 operation of law^; if any thing, it is a direct agreement by 
 parol, to create a trust; an attempt to enforce a parol declara- 
 tion of a trust. The case contains none of the elements of 
 an implied or resulting trust. A resulting trust can only exist 
 where the actual payment of the purchase money is clearly 
 proved. Steer vs. Steer, 5 John. Ch., 1. And a payment of 
 a part, or any thing less than the whole purchase money, will 
 not raise a resulting trust. 1 John. Ch., 582; 2 John. Ch., 405; 
 2 Mad. Ch., 112; 3 Cow., 588; 3 Ves., 696; 1 Ves., 366. 
 
 But to this the complainant insists, that a trust is to be im- 
 plied, for the purpose of preventing a fraudulent use of the 
 statute of frauds. Trusts for that purpose are never implied, 
 unless some clear and specific act of fraud is distinctly proved, 
 as preventing the execution of a will or other instrument, 
 creating an estate or declaring a trust. Roberts on Frauds, 
 103; Thi/ne vs. Thjjne, 1 Vernon, 290. But the facts in this 
 case show no such thing, and if a trust might be implied in 
 the present case, it might in every one, to the entire prostra- 
 tion of the statute. 
 
 But the complainant further insists that the facts in the case 
 show the existence and creation of a trust before our statute 
 of frauds. The fact is not so, and it is untenable as a legal po- 
 sition; 1st, because prior to our statute of frauds,, the legal es- 
 tate to the premises was not in Antoine Bougard; his right was 
 a mere equity under the act of Congress, and so was the com- 
 plainant's, if he had any; no trust, therefore, could, by a pos-
 
 140 CASES IN CHANCERY. 
 
 Firstcircuit. gibility, havG cxisted, foi* tliG obvious reason that there was 
 '^'^^^C^ no legal estate to sustain it. But, 2d, if, by a possibility, any 
 Bougard. could havG oxistcd before the legal title vested in Antoine Bou- 
 gard, yet, not being in writing or declared by writing, even 
 before our statute of frauds, it would have been void; for the 
 rules of property are the same in equity as at law. Gilbert, 
 Law of Uses, 39. Trusts are now what uses were before the 
 statute of uses, as was expressly decided on an issue out of 
 chancery. Lord, £7iglesea, vs. Lord Jlltliam ; Holt's Rep., 736. 
 And both uses and trusts have always been governed by the 
 same rules and the same reasons as legal estates. Waats vs. 
 Ball, 1 P. Will, 109. For were not the rules of property the 
 same in equity as at law, in the language of all the books, 
 thino-s would be at sea, and there would be the greatest uncer- 
 tainty. Banks xs. Sutton, 2 P. Will, 713; 2Blackstone's Coin., 
 337. Therefore, the rule has ever been, that where a deed or 
 writing was necessary before the statute of frauds, for passing 
 the legal estate, the same formality was necessary to create or 
 declare a use or trust. Gilbert's L. Uses, 7; 7 Bac. Mr. Tit. 
 Uses and Trusts, 92; 3 JltL, 151; 2 Atk., 37. No legal es- 
 tate whatever, by the fundamental ordinance, and laws both 
 of the North-west territory and the territory of Michigan, 
 could, at any time, be created or transferred by parol. F^in- 
 damental Ord., Art. 1; Lindsey vs. Coats, 1 Ohio Rep., 113. 
 For these reasons, then, any pretended trust prior to the sta- 
 tute of frauds, would be a nullity. 
 
 The Chancellor. — Every material allegation in the bill is 
 fully and positively denied by the answer. The defendants, 
 nine in number, say the complainant never either owned or 
 occupied the said land, or any part or portion thereof; but the 
 children and heirs, on the contrary, say, from their earliest 
 recollection, their father held the entire, exclusive and peacea- 
 ble possession of the whole tract, as well the pretended east- 
 ern as the western portion; that the said Antoine did not, im- 
 mediately before his death, or at any time, direct them to coi>
 
 CASES IN CHANCERY. 141 
 
 vey any portion of the tract to the complainant, or admit that first circu-t. 
 he had any interest therein. jicrn.ini 
 
 Indeed, it is hardly possible that an answer could be made Dougard. 
 more full and complete to all the material allegations in the 
 bill. The defendants also set up and insist upon the statute of 
 frauds. 
 
 Voluminous testimony has been taken on both sides. 
 
 The testimony has been carefully considered, and I cannot, 
 from a review of it, come to the conclusion that the claim of 
 the complainant can be sustained. 
 
 The complainant relies for the establishment of his claim 
 upon the testimony of Joseph Beauxhomme, Louis Bernard, 
 Louis Morminee, Joseph Drouillard and Louis Louigne. 
 
 The testimony of Beauxhomme is, as to admissions made by 
 Bougard, and is inconsistent with itself. He makes Bougard 
 admit that the complainant is entitled to one half, and says 
 still that he said the two acres troubled him, &c.; and it is en- 
 tirely at variance with the allegations of the bill, that the land 
 was divided and complainant in the possession of the east half. 
 But little weight can be attached to the testimony of Louis 
 Bernard. It is in proof that he had previously alledged, 
 that the present complainant had no interest in the land in 
 question, but that it belonged to him. Louis Morminee testi- 
 fied before the board of land commissioners, that it belonged to 
 Bougard. Drouillard testifies as to the original purchase from 
 the Indians, and says it belonged to both complainant and Bou- 
 gard. Louis Louigne substantially sustains the last witness, 
 but is manifestly mistaken as to other statements which he 
 makes, and so much so as at least to cast some doubt upon his 
 testimony. There is such discrepancy and so much uncer- 
 tainty in the showing in this case, that the testimony of the 
 witnesses as to transactions of so ancient a date, should be re- 
 ceived with caution. 
 
 The testimony of Margaret River and Narcissa Delisle, who 
 have resided near the land for a long time, strongly sustains 
 the answers; they resided near the lands at a very early pe- 
 riod, and never saw the complainant at work on the land, or
 
 142 CASES IN CHANCERY. 
 
 Firstcircuit. heard of his claim. Indeed the proof of. any actual occupation 
 
 „ ^^ bv complainant, aside from the admission testified to bv Beaux- 
 Bernard ./ i ' 
 
 Bougard, bommc, is very slight. When it is considered that the fact of a 
 separate and distinct possession and occupation of the east half 
 of the tract of land as alledged in the bill for so long a time, 
 and up to a period so recent, must, if true, have been so noto- 
 rious as to have been capable of clear and positive proof, cou- 
 pled with the testimony as to the claim of Louis Bernard, that 
 the land belonged to him; and also the testimony of Dui'ocher, 
 that so late as 1821, the complainant claimed the whole of the 
 land, it is difficult to come to the conclusion, from any thing 
 here presented, that the claimant ever had such a possession 
 and occupation of any portion of this land, either joint or seve- 
 ral, as would have entitled him to a confirmation bv the com- 
 missioners, under the act of congress of May, 1820, continuing 
 in force the previous act, of 1807. The claim of the com- 
 plainant is probably founded on family residence; he was no 
 doubt, occasionally there when a boy. It is true, there is 
 great discrepancy in the testimony. 
 
 But after a confirmation and patent, if it is competent at all 
 to go behind it, it should only be done upon the clearest and 
 most irrefragable proof. 
 
 The point insisted upon in the argument, that the agree- 
 ment, or pretended agreement, that both complainant and Bou- 
 gard would concur in making proof before the commissioners 
 of that which, according to the allegations in the bill, did not 
 exist, to wit: the sole occupation and improvement of this pro- 
 perty by Bougard, so as to bring him within the requirements 
 of the act of congress, is immoral, is entitled to weight. The 
 commissioners had no authority to confirm to any except to 
 those who proved themselves to come within the provisions 
 of the act of congress. They have never acted upon any claim 
 or right of this complainant. 
 
 If the allegations in the bill are true, the commissioners have 
 been led by false lights, to do an act which they were not au- 
 thorized to do. And if this conspiracy had not existed, it is 
 possible such facts might have been elicited, as would have
 
 CASES IN CHANCERY. 143 
 
 satisfied them that of riglit, it should have been confirmed to rirstcircuit. 
 neither the one or the other. ^^^^^-^^ 
 
 IJcrnard 
 
 The ground taken by the complainant, in order to avoid tlie jj^"- ^ 
 statute of frauds, is, that this is a resulting trust; that the com- 
 plainant, being actually entitled to the east half, and the title 
 having been vested in Bougard, the complainant may compel 
 the heirs to execute the trust. 
 
 From the premises it will be perceived, that, in the view of 
 the Court, this position cannot be sustained. 
 
 First. It is not sustained by such clear and undoubted proof 
 as should be required in a case like the present, that the com- 
 plainant was ever entitled to a confirmation of any portion of 
 this trust. 
 
 Indeed, from all the facts and circumstances developed in 
 the case, I am inclined to think otherwise. 
 
 Second. If it were apparent that the complainant would 
 have been entitled to a confirmation, it would still be question- 
 able whether it would come within the rule of an implied or 
 resulting trust. 
 
 A resulting trust only exists where the actual payment of 
 the purchase money is clearly and distinctly proved. Pay- 
 ment of a part, or any thing less than the whole, will not raise 
 a resulting trust. Steere vs. Steere, .5 Johns. C/i. R.,1; Boyd 
 vs. McLean, 1 Johns. Ch. R., 582. 
 
 This was not a purchase. The occupants of these lands 
 could not claim the grant of the government as a matter of 
 strict legal right, although they may have had strong equita- 
 ble claims. It was rather in the nature of a bounty or gift by 
 the government. 
 
 If there was any trust, it was an express trust, and by pa- 
 rol, not evidenced, or pretended so to be. either as to its ex- 
 istence or terms, by any written contract or memorandum 
 whatever, and, to this, the plea of the statute of frauds, as has 
 already been decided in this court, is a conclusive bar. 
 
 The existence of a trust may be shown by parol, but there 
 must be some memorandum in writing showing its terms. 
 
 From the view I have taken of the case, all that portion of
 
 144 CASES IN CHANCERY. 
 
 First Circuit, the proccediiigs and proofs which relate to the purchase by 
 ^"f^^^"^ Clark and Disbrow, with notice, as is allep^ed, becomes imma- 
 
 Bernaril ' ' o ' 
 
 Bougard. terial. If they had notice of the claim of the complainant, 
 it was a notice that he had no valid claim. The bill must be 
 dismissed with costs. 
 Bill dismissed.
 
 CASES IN CHANCERS. 145 
 
 Benjamin Tate vs. Jacob Whitney. 
 
 Where It nppenred that T. had accuscrl W. of forcing' his, T.'a name, to a subscription for a 1339. 
 
 ncwspiiper, and \V. h;id llirc;:teneJ T. wiih p. pro;ccu".i()ii tor slander, .Mid T., in or>lcr to ^^'^"n.'i Cir- 
 
 settle the raaUcr, had iissigned to \V. ii lionJ :m1 morisagt-, upon which iliere was due about v^^»-s,^-^^^ 
 
 theiiiini of three hund.c.l and ihirlv-five dollars, r.nJ T. ;if.cr\v;i.rds fJeJ a bill a:;ainst \V. to _, 
 
 1 ate 
 have the bond an 1 nion^'awc ro-ass gned. It tens held, th::t ihe ; ssgnnicnt was made wl hout vs. 
 
 considi-raiion, and W. was dire.-ied by decree to re-iissign llic LonJ and mortgage to T. in biiney. 
 
 thirty days from the service of a copy of tlic decree. 
 
 The bill in this case was filed August 17, 1837, and states, ''''"""5' u. 
 that on or about the second d;iy of June of the same year, the 
 complainant possessed all the right, title, interest, and claim 
 to a certain indenture of mortgage, executed by William Gil- 
 crist to complainant, bearing date April 8. 1837, of certain pre- 
 mises therein described and setforlh in the bill, conditioned to 
 pay five hundred dollars, and interest, six months from the 
 date thereof. 
 
 That, on or about the second day of June, 1837, complain- 
 ant had a conversation with defendant at Jonesvillc, in the 
 county of Hillsdale, in regard to the subscription, fjy the com- 
 plainant, for a certain newspaper called the Christian Palladi- 
 um, in which conversation complainant told the defendant that 
 he never had subscribed for said paper, nor authorized any 
 other person to subscribe for said paper for him (the complain- 
 ant,) and that complainant further stated to the di^fondant, that 
 he, the defendant, had forged bis (the complainant's,) name, 
 or given some other perst>n liberty to sign the complainant's 
 name for said paper, which the defendant denied. That, soon 
 after sut>h conversation, the defendant threatened to prosecute 
 the complainant for the words he had spoken as aforesaid, and 
 told com|jIainant if he did not assign over to the defendant the 
 indenture <if mortgage, and the bond referred to therein and 
 accompanying the same, as a collateral security, and settle 
 with him. the defendmt, for the language complainant had used 
 in relation to the subscription for said newspaper, he, the de- 
 
 Voi.. T. 19
 
 146 CASES IN CHANCERY. 
 
 Second cir- fendant, would keep the complainant in prison eight or ten 
 
 cuit. . . . 
 
 ^^^-v-^, years, for what he, the complainant, had said; and complainant 
 '^^l'^ being intimidated and greatly distressed at the threats and me- 
 whuney. jj-j^gg Qf ^hg defendant, and being ignorant of his own rights, 
 and of the law, was induced, by these threats and menaces of 
 the defendant, to execute an assignment of the bond and mort- 
 gage, and did, on the second day of June aforesaid, execute 
 and deliver to the said defendant, an assignment of said bond 
 and mortgage, without any consideration of whatever name 
 or nature, and did actually deliver over said bond and mort- 
 gage. Tiie bill further alledges, that the complainant had ap- 
 plied to the defendant to re-assign and re-deliver said bond and 
 mortgage, and to pay complainant the amount thereof, &c., 
 which defendant had refused to do; and prays that the defend- 
 ant may be decreed to pay to the complainant whatever mo- 
 ney, if any, he may have received, or shall receive, on said 
 bond and mortgage, and be restrained by injunction, from as- 
 signing, or in iiny way transferring or disposing of the same, 
 and that defendant may be decreed to re-assign and deliver up 
 said bond and mortgage to complainant. 
 
 The answer admits the bond and moj-tgage, and that at the 
 time of the assignment thereof, there was then due thereon, 
 about the sum of three hundred and thirty-five dollars; states 
 that previous to the time of the assignment stated in the bill, 
 the defendant had been i'requenlly informed by divers good and 
 worthy citizens of the county of Hillsdale, that the complain- 
 ant had reported and declared, and was in the frequent habit 
 of reporting and declaring that the defendant had forged the 
 name of the complainant to a subscription for the newspaper, 
 mentioned in the bill; that defendant was advised to ask some 
 redress of the complainant lor his slanders; that the defend- 
 ant called on the complainant at the town of Litchjield, about 
 eight miles from Jonesville, and had a conversation with the 
 complainant, in which the defendant informed the complainant 
 of the slanderous, false and defamatory declarations made 
 by the complainant, of and concerning the defendant, charging
 
 CASES IN CHANCERY. 147 
 
 him with the crime of forgery; that the complainant admitted ®"*"u^'^' 
 to defendant, that he (the complainant,) had before then, at di- 
 vers times and places, and in the hearing and presence of di- 
 vers persons, reported and declared that the defendant had 
 forged his (the complainant's,) name to the said subscription, 
 and that the reports and declarations were false, and without 
 any foundation in truth, and that the complainant was willing 
 to redress the wrong he had done to the reputation and good 
 name and credit of the defendant by such false antl slanderous 
 reports; to which the defendant replied, that the said complain- 
 ant must make him (the defendant.) satisfaction in some way, 
 or that the defendant should seek redress by proceedings at law; 
 that complainant then informed defendant, that if he (the de- 
 fendant,) would lake the bond and mortgage in full satisfaction 
 for the wrongs done to the defendant by the false and slander- 
 ous reports and declarations of the complainant, he (the com- 
 plainant,) would duly assign over the same to the defendant; 
 and that complainant strongly solicited the defendant to accept 
 of the mortgage in satisfaction for the said wrong; that at the 
 special request and urgent solicitation of the complainant, the 
 defendant agreed to accept and receive the bond and mortgage 
 in full satisfaction of said wrong and injury, and thereupon the 
 complainant assigned and delivered the said bond and mortgage 
 to defendant, and defendant at the same time acquitted and 
 discharged complainant from all liability for his false and slan- 
 derous reports, &c. 
 
 Denies the threats of prosecution, &c., and also denies that 
 defendant told complainant he would keep him in jail, as stated 
 in the bill, denies that he was requested to re-assign the bond 
 and mortgage, as stated in the bill. 
 
 The cause was heard upon bill, answer and proofs. 
 
 E. Lawrence, for complainant. 
 
 I. The transfer of the mortgage referred to in the bill, and 
 answer was obtained by duress, threats or menaces, and is 
 therefore, void. 1 Story's Com. on Eg., 243, 4. 5; (note 1.)
 
 149 CASES IN CHANCERY. 
 
 Second cir- II. That the assignment of the mortgage was without con- 
 
 ciiit. _ 
 
 s^^N/-"^./' sideration, and void. 
 
 Ta^e 1st. The words spoken by Tate, that the defendant had for- 
 
 Whituey. g^j ^^ subscribed his (Tate's,) name to the subscription Hst of 
 a newspaper callej the "Christian PaUadium," are true, and 
 of course a justification to the complainant. 
 
 Maybee and Manchester, in their testimony, state that 
 Whitney ordered the complainant's name to be added to the 
 list. 
 
 2d. The charge, as made by complainant against Whitney, 
 o{ forging or subscribing liis name to the list, was not actionable 
 in itself, as it did no.t inipute any crime punishable by law, and 
 no special damage is alledged or proved. 1 Com. Dig., 390. 
 {Tit. F. 0.) 
 
 III. The charge of Tate against Whitney did not amount to 
 tL forgery, and might be called any other crime with equal pro- 
 priety. 
 
 \st. The act charged was not :i forgery, because neither the 
 statute or the common law embraces such an act. BacorCs 
 Mr. Title forgery, B. 
 
 2d. It was not a forgery, because there was no intention on 
 the part of Whitney to injure or defraud Tate or any other 
 person, in the act charged. 4 BL Com. 202. 
 
 Zd. It was not a forgery, because Whitney was to receive no 
 benefit from the act, but Tate himself was the person to be 
 benefitted by the act of Whitney. 
 
 Atit. Equity will relieve when any undue influence has been 
 used over an ignorant and unsuspecting man. 1 Story'' s Com, 
 on Eq., 242. 
 
 5th. The declarations of Whitney to Tate, that he would 
 imprison him, &c., were false, and acted as a surprise and im- 
 position upon Tate. 1 Story's Com. on Eq. 202. 
 
 Gth. The inadequacy of the consideration for the assignment 
 of the mortgage is so great, that it seems unconscionable, and 
 shocks the understanding of every man, and bears on the face 
 of it, conclusive and decisive evidence of fraud. 1 Story's 
 Com. on Eq., 250.
 
 CASES IN CHANCERY. 149 
 
 P. R. Adams lor defendant. scconri cir- 
 
 Cllll. 
 
 The Chancellor. From the bill, answer and testimony, it „, , 
 
 ' J ' ^ ale 
 
 is apparent that the defendant was practising upon the fears of whi^ey. 
 a timid and ignorant man, and that the assignment of the 
 mortgage in question, was in fact procured without any con- 
 sideration whatever. The complainant is entitled to a de- 
 cree that the defendant, Whitney, re-assign and re-deliver said 
 mortgage to the complainant within thirty days from the ser- 
 vice of a copy of the decree in this cause. 
 Decree accordinsjly.* 
 
 * An appeal was taken in tliis case to the supreme court, and the decree of the Ch:.nccllor 
 affirmed, January 2-i, 1839.
 
 150 CASES IN CHANCERY. 
 
 Thompson vs. Mack and others. 
 
 ]P39 Where M. gave T. a mortgage, April 14, 1831, as iiidemniij' against a certain debt for which T. 
 
 FirstCircuit. ^^s liable, which mortgage was recorded July 24, 1833, and T. was sued and had the debt to 
 pay ; and April 9, 1833, M. conveyed, by an absolute deed, the lot mortgaged, logelher with 
 anollier lot, to C, and C. gave M. an agreement in writing, to re-convey the lots to M. upon 
 M's paying the amount of his debt f about #150,) due to C, and shortly afierwards, M. being 
 in embarrassed circumstances, applied to C. I'or a further credit, and in order to obtain such 
 further credit, M. gave up the agreement from C. to re-convey, and C.'s deed from M. was 
 recorded July 20, 1833, (being four days previous to the record of T's mortgage,) and the 
 writing or agreement to rc-convey from C. to i\I. was not recorded, and June 26, 1634, C. 
 conveyed the premises to K., for the amount due from M. to C, and June 3, 1835, K. con- 
 veyed to D. and R., it was held lluit the deed from M. to C. was a mortgage in its inception, 
 and continued so to be, (notwithstanding M. had delivered up to C. his agreement to re-con- 
 vey,) and ought to have been recorded as such, and tluit the recording of that deed, as a deed, 
 though the record was prior to that of T's mortgage, could give it no priority over that mort- 
 gage. 
 
 Where a party claims priority under or by virtue of the statute regulating the registry of 
 deeds and mortgages, he must show a compliance with its provisions in order to entitle him 
 to sucli priority. 
 
 April 30. Tjjis ^ag a bju to foreclose a mortgage, and stated that the 
 complainant, August 11, 1830, purchased a quantity of drugs 
 and medicines to the amount of #197 23 of the firm of Law- 
 rence, Keese 6t Co., of the city of New York. That after- 
 wards, and before the goods were received, it was agreed be- 
 tween the complainant and Mack, that the latter should take 
 the drugs and medicines and pay for them; and that Mack, on 
 the 14th April, 1831, gave a mortgage to the complainant on 
 lot number fifty-seven, in the village of Pontiac, to indemnify 
 him against the payment of the debt due to Lawrence, Keese 
 & Co., which mortgage was afterwards recorded, July 24, 
 1833; that Mack had neglected to pay Lawrence, Keese & 
 Co., who had sued the complainant for the price of the drugs 
 and medicines, and I'ecovered a judgment against him of $265 
 47 damages, and $8 00 costs, which the complainant had paid; 
 that, April 9, 1833, Mack conveyed, by an absolute deed, the 
 lot mortgaged, (together with another lot in Pontiac,) to the 
 defendant Chamberlain, whose deed was recorded July 20, 
 1833, four days previous to defendant's mortgage. The bill 
 charged that the deed from Mack to Chamberlain, although ab-
 
 CASES IN CHANCERY. 151 
 
 solute on its face, was intended by the parties to operate as a Firstcircuit. 
 mortgage only, and was given to secure a debt due from Mack, .^.|,„„,p,„„ 
 to Chamberlain; that Chamberlain had bound himself by bond, ^i"^.^ 
 or other writing, to re-convey the premises on the payment of 
 the debt, and that such bond or writing for a re-conveyance, 
 was not recorded, by Chamberlain, with his deed; it further 
 states, that June 26, 1834, Chamberlain conveyed the lot to 
 the defendant Keeney, who, June 3, 1834, conveyed it to the 
 defendants Draper and Richardson; and Chamberlain, Keeney, 
 Richardson and Draper, were severally charged with notice 
 of complainant's mortgage at the time of their respective pur- 
 chases. 
 
 The defendants put in several answers. Mack, in his an- 
 swer, admits the purchase of the drugs, &c., but not till after 
 they had been received by Thompson, and put into Mack's 
 store, for sale; states that Thompson put a clerk in the store 
 to sell the goods; that the clerk sold a considerable portion of 
 them, and used part of the money, the proceeds of the sales, 
 for his private purposes; that Mack aided in selling the goods, 
 &c.; that April 14, 1831, Mack purchased of Thompson, the 
 drugs unsold, and the debts due for those which had been sold, 
 and agreed to indemnify Thompson against the debts due by 
 him to Lawrence, Keese & Co., and to pay the $32 for trans- 
 " portation, and that Mack and wife, on the same day, executed 
 the mortgage mentioned in the bill, as indemnity to Thomp- 
 son; that the mortgage was not recorded until the time stated 
 in the bill; that, December 10, 1832, he paid to Thompson 
 $56 98, to be applied on the mortgage, and took receipt to 
 that effect; that Thompson is also indebted to him in the sum 
 of $91, for services, and also owes him for rent, and on other 
 accounts, as he believes, to the amount of the debt; denies any 
 knowledge of the judgment against Thompson; admits the 
 deed to Chamberlain, of April 9, 1833, and its record, and^that 
 he took from Chamberlain, a paper, not under seal, in which 
 Chamberlain agreed to re-convey the lots, if he should in a 
 short time, (could not state how long.) pay to Chamberlain the 
 amount due him, which was about $150; thai he. Mack, being
 
 152 CASES IN CHANCERY. 
 
 First circ-.iit. in embarrasscd circumstances, shortly afterwards applied to 
 '"■'''^'^''^^ Chamberlain for further credit, and to obtain such credit, he 
 
 Thompson 
 
 Mack gfive up the agreement to re-convey, and surrendered all right, 
 title, claim and equity of redemption in the premises; that he 
 did not tell Chamberlain of Thompson's mortgage, and does 
 not believe that Chamberlain knew of that mortgage; that 
 the reason that two lots were deeded to Chamberlain, was that 
 there was an incumbrance of dower on one of them; that 
 Keeney bought the lots fifty-seven and fifty-two, of Chamber- 
 lain; that he never informed Keeney, and does not believe he 
 knew of Thompson's mortgage, at the time he purchased the 
 lots; that the sale to Keeney was not for the benefit of Mack 
 or his family. 
 
 Chamberlain, in his answer, admits that Mack was indebted 
 to him, and gave him a deed of lots number 57 and 52, April 9, 
 1833; denies that he had any notice of Mack's mortgage to 
 Thompson. Further states that when Mack gave up the writ- 
 ten agreement, he released and surrendered all right to re- 
 deem; that he paid Mack the full value of the premises, en- 
 cumbered as they were by a claim of dower. That Keeney 
 paid the full value for the lots; that at the time of making the 
 deed to Keeney, he, Keeney, had no notice of Thompson's 
 mortgage, to his knowledge. Keeney, in his answer, denies 
 any knowledge of Thompson's mortgage at the time he pur- 
 chased from Chamberlain, and until he had sold to Draper and 
 Richardson; admits the deed from Mack to Chamberlain, of 
 April 9, 1833, and deed from Chamberlain and wife to him, 
 June 26, 1834. Denies all knowledge of any agreement other 
 than the deed from Mack to Chamberlain, until after he sold 
 to Draper and Richardson; that he cannot state the exact 
 amount paid by him for the lots; that he gave full value, and 
 purchased them for himself, &c. Admits the sale by him to 
 Draper and Richardson, June 3, 1835, and their mortgage, 
 &c., to him. 
 
 Draper and Richardson, in their answer, admit that they 
 had notice of Thompson's mortgage, either before or after their 
 purchase, but do not remember which.
 
 CASES IN CHANCERY. 158 
 
 R. Manning, for complainant. Firstcircuit. 
 
 The deed from Mack to Chamberlain, although absolute on '"""p^"" 
 
 its face, is nevertheless a mortgage. It was given to secure a 
 debt to Chamberlain, who was tore-convey the premises when 
 Mack paid him. 
 
 As a mortgage, the defeasance, or agreement to re-convey, 
 should have been recorded with the deed, in the record of 
 mortgages, as the statute requires. Rev. Laws of 1833, page 
 283 and 284, § 3. By the registry of it as a deed, instead of 
 a mortgage, it did not, as a mortgage, gain priority over the 
 complainant's mortgage. Deij vs. Dunham, 2, J. C. R,, 182; 
 Grimstone vs. Carter, 3 Paige, 421; James vs. Morey, 2 Cowen, 
 246. The registry of it, as a deed,- availed nothing. The re- 
 gistry of a legal instrument does not change the nature or ef- 
 fect, of the instrument. It does not change a mortgage into a 
 deed, or a deed into a mortgage. Its only effect is to give pri- 
 ority to legal instruments which have been properly recorded. 
 Whether, therefore, the defeasance was delivered up to Cham- 
 berlain before or after the complainant's mortgage was recor- 
 ded, if after the deed had been recorded, cannot alter the case, 
 for it could not make a good record out of what was before a 
 bad record, or no record at all. From the testimony of Cham- 
 berlain, it appears the surrender of the defeasance was not in- 
 tended to turn the mortgage into an absolute deed. He con- 
 sidered the deed afterwards, as he had done before, as security 
 for the debt Mack owed him. The complainant's mortgage 
 was recorded long before Keeney purchased of Chamberlain, 
 and as Chamberlain's deed is not good, either as a deed or 
 mortgage, against the complainant's mortgage, Keeney's deed 
 certainly cannot be. If there was any doubt, that Chamber- 
 lain's deed continued to be a mortgage after the defeasance 
 was surrendered, and it should be insisted the defeasance was 
 given up to Chamberlain before the deed was recorded, the 
 testimony is too vague and uncertain upon that point to take 
 away the common law rights of the complainant. The defen- 
 dants, when seeking to gain an advantage through the registry 
 
 Vol. I. 20 
 
 vs. 
 Mack.
 
 164 CASES IN CHANCERY. 
 
 First Circuit 
 
 ircuit. \^^y^ should clearly show themselves entitled to it by a compli- 
 Thompson ancc vvith the law. 
 
 vs. 
 
 Mack. B p^ n Wither ELL, for the defendant. 
 
 The defendants are entitled to have the bill dismissed and a 
 decree for costs. 
 
 1st. Because Chamberlain was a purchaser without notice. 
 See2 Ves. Jun., 453; 3 Fes., 221; 4 Fes., 383; 9Ves.,24. 
 
 Chamberlain took up the writing of defeasance before his 
 deed from Mack was recorded; when that instrument was 
 taken up, if not before his deed from Mack, became absolute. 
 
 By the writing or article to Mack from Chamberlain, Mack 
 was to have but sixty days to redeem; the deed was then ab- 
 solute. 
 
 Keeney was a purchaser for a bona fide consideration, with- 
 out notice, and if Chamberlain had notice Keeney will be pro- 
 tected. Deinarest vs. Wipicoop, 3 J. C. R., 147; Jackson vs. 
 Oiv., 8 John's R., 141. ^ct concerning mortgages, seelaws 1833, 
 p. 283, Sec. 2, also act concerning deeds, 8^c., lb., p. 279, Sec. 2. 
 
 Draper and Richardson are protected as well as Keeney, 
 under the principle that a purchaser icith notice to himself from 
 one who purchased without notice, may protect himself under 
 the first purchaser. Bumps vs. Platner, etal., 1 J. C. R., 213. 
 
 The Chancellor. From the facts stated in the bill, answer 
 and testimony, there can be no doubt that the conveyance 
 from Mack to Chamberlain was a mortgage, and a mortgage 
 only in its inception; and it is evident that it so continued, and 
 was so regarded until the transactions were closed by the pay- 
 ment of the amount due to Chamberlain, and the conveyance to 
 Keeney, 
 
 It is admitted to have been so in the first instance. 
 
 Chamberlain, in his testimony says, that the instrument of 
 defeasance was given up, so that the estate conveyed should 
 remain as security for further advances. 
 
 The account with Mack was not closed at that time. 
 
 Chamberlain says he should, at any time, have re-convey- 
 ed to Mack upon payment of the amount due, and an allow- 
 ance for hi* trouble in securing his debt.
 
 CASES IN CHANCERY. 155 
 
 He did actually convey the premises to Keeney, the father- fi^tt^ircuit. 
 in-law of Mack, upon payment of the advances made by him, Thompson 
 and the charges for his trouble. Mack. 
 
 The statute {Laws of 1833, page 284, section 3,) provides 
 that " every deed conveying real estate, which by any other 
 instrument or writing, «hall appear to have been intended as 
 security, in the nature of a mortgage, though it be an absolute 
 conveyance in terms, shall be considered as a mortgage and 
 be deemed and adjudged to be liable to be registered as other 
 mortgages are by virtue of this act; and the person or per- 
 sons for whose benefit such deed shall be made, shall not have 
 the advantage given by this act to mortgages, unless every in- 
 strument and writing operating as a defeasance of the same, 
 or explanatory of its being designed to have the effect only of 
 a mortsasre or conditional deed, be also herewith registered in 
 substance as in case of mortgages." 
 
 The deed of Chamberlain with the writing or agreement to 
 Mack, ought to have been registered as a mortgage. The re- 
 cording of that deed, as a deed, though the record was prior 
 to that of Thompson's mortgage, can give it no priority over 
 that mortgage. See Deyvs. Dunham, 2 /. C. R., 182; Grim- 
 stone vs. Cartel', 3 Paige, R., 421. 
 
 Four days after the record of the deed from Mack to Cham- 
 berlain, Thompson recorded his mortgage and thus gave notice 
 of its existence. 
 
 Keeney claims, however, to have been a purchaser without 
 notice. 
 
 But if in fact the transactions between Mack and Chamber- 
 lain constituted the instrument a mortgage and no more, the 
 record of the mortgage of Thompson should be regarded as a 
 sufficient notice to a subsequent purchaser. 
 
 The fact of a subsequent sale, especially while the mort- 
 gage of Thompson was standing upon the record, would not 
 change the character of the transaction between Mack and 
 Chamberlain. It would defeat the salutary provisions of the 
 statute to permit it to be evaded by a sale to another when the 
 party claiming (as in this case Thompson had done,) had pla 
 ced his mortgage upon record.
 
 156 CASES IN CHANCERY. 
 
 Firstcircuit. f^e mortgage to Thompson being of prior date, without 
 Thompson reference to the registry laws would have priority; the de- 
 Mack, fendants claim priority, by virtue of the provisions of the sta- 
 tute. In order to entitle themselves to such priority, they 
 must conform to its terms, which has not been done. 
 
 PiTack sets out in his answer, that the mortgage is nearly or 
 quite paid. This will render it necessary that it be referred to 
 a masiar to examine and report the amount due upon the 
 mortgage, after allowing all proper credits and offsets, and to 
 report to this court with convenient speed; and further direc- 
 tions reserved until the coming in of the masters report.
 
 CASES IN CHANCERY. 157 
 
 The County Commissioners of the County of La- leso. 
 
 ^-. __ FirstCircutt. 
 
 PEER VS. Alvin JN. Hart and others. 
 
 Bills of pence are only allowed where the complainant lias established Ills right at law ; or 
 where the persons who controvert the right, are so numerous as to render an issue under the 
 direction of this Court indispensable to cnihraee all the parlies concerned, and save a multi- 
 plicily of suits. 
 
 An injunction, sliiying proceedings in sixty-seven suits, commenced in one dny against the 
 county coinmiasioncrs, before justices of the peace, on county orders, was, on motion, dis- 
 solved, on Ihe ground that tlieir defence was at law. 
 
 The bill in this case was filed May 23, 1839, and slated that November 
 
 •' ■ ' 30. 
 
 November 16th, 1838. the board of supervisors of the county 
 of Lapeer, assuming to act in the performance of the duties 
 imposed on the county commissioners by the revised statutes, 
 after the county commissioners had been declared duly elect- 
 ed, but before they had qualified, proceeded to enter into a 
 contract with one Norman Davison, by which the supervisors 
 pretended to bind the county to pay Davison twelve hundred 
 dollars to complete a court house (the frame of which was 
 up,) for the county, and directed the issuing of county orders 
 on the treasurer of the county for six hundred dollars, which 
 were issued and delivered to Davison as apart payment; that 
 the orders were issued in small sums, from one dollar to one 
 hundred dollars each, which orders were required to be paid 
 by the county treasurer out of any moneys in the county trea- 
 sury, not otherwise appropriated ; were made receivable in 
 payment of county taxes, and payable January 1, 1839, to 
 Norman Davison or bearer. That, at their first meeting after 
 being duly qualified, viz: the first Monday of January, 1839, 
 the county commissioners, deeming the proceeding of the board 
 of supervisors illegal and unauthorized by law, passed a reso- 
 lution to that effect, and immediately gave notice to the collec- 
 tors of the several towns in said county, and to the treasurer 
 thereof, not to receive the said orders in payment of taxes. 
 That, when the orders became due and payable, payment was 
 demanded of the treasurer by the several holders, which pay-
 
 158 CASES IN CHANCERY. 
 
 nrstcircuit. meiit was refused, as well for the reason that the county com- 
 ^-^"^^'"'*^ missioners had forbidden their payment, as for the reason that 
 
 Lapeer ' 
 
 county there was no moneys in the treasury not otherwise appropria- 
 ""■"'■ ted. That the holders of the orders commenced a series of 
 vexatious suits against the county commissioners on the or- 
 ders, before justices of the peace; that sixty-seven suits were 
 brought in one day, process in each, returnable on the same 
 day, before three diflercnt justices, keeping their offices and 
 doing business at distances of from five to twelve miles from 
 each other, for the purpose of subjecting the county commis- 
 sioners to great inconvenience, and deprive tliem of making 
 their defence. That judgments had been rendered against the 
 commissioners in forty-four of the suits so commenced, and 
 the other twenty-three were still pending and undecided. The 
 bill further stated, that the whole amount of judgments reco- 
 vered, amounted to about five hundred dollars, and that the 
 holders unnecessarily and vexatiously multiplied suits; that ap- 
 peals had been taken in five of the cases, for the purpose of 
 testing the legality of the proceedings of the board of super- 
 visors, and the principle involved in all the suits was the same; 
 that the commissioners were unable to take appeals in all the 
 cases, in consequence of there being no funds in the treasury 
 to pay the costs; that the costs which were required to be 
 paid, to enable them to take appeals from the several judg- 
 ments, would fall but little short of the Vv^hole amount of the 
 judgments. The bill charged, that the holders of the orders 
 conspired to commit a fraud, and extort money from the coun- 
 ty, &c., and prayed for an injunction to stay proceedings at 
 law upon the suits already commenced, and to restrain the 
 holders of the orders from commencing other suits at law, un- 
 til the suits appealed should be determined. An injunction 
 was granted according to the prayer, and this was a motion 
 to dissolve the injunction for w^ant of equity in the bill. 
 
 D. Goodwin, in support of the motion.
 
 HarU 
 
 CASES IN CHANCERY. 159 
 
 1. The court has no jurisdiction. This is wholly at law, ^''^--'^'cuk. 
 and the courts of law can try the whole matter. Lapeer 
 
 2. The complainants themselves show that in fortv-four ca- vs. 
 ses tried, judgment was for the plaintifls, and not against them. 
 The cases where courts of equity interfere, are usually those 
 •where, in trials at law, the complainant has sustained a title, 
 or right, and there are subsequent repeated actions to question 
 that title or right. 
 
 3. Here the right claimed, is on the part of the several defen- 
 dants in the bill, who held the orders, and is resisted by the 
 complainants. The complainants are not seeking to enforce 
 a right which is invaded, but to resist a right claimed, and by 
 their own showing, established by forty-four judgments. 
 
 4. It does not appear from the bill, that the defences in the 
 several cases, were one and the same. They might have been 
 different in each case. The bill does not shaw, or alledge, what 
 the pleas were in any of the cases; in some, it seems, the pleas 
 were to the jurisdiction of the court. 
 
 5. When chancery interferes to prevent a muliiplicity of 
 suits, it is in cases where the subject of the suits is the same, 
 and not different. Here the suits, according to the bill, are 
 upon separate orders, and these not in the hands of the origi- 
 nal holders, but transferred and held by different individuals, 
 and where the holders may hold for a valuable consideration, 
 and without notice. 1 Maddox, 166; 2 Johns. Ch. Rep., 281; 
 3 Johns. Rep., 601. 
 
 6. In fortj'-four cases there were judgments rendered, and 
 in five of these only, there were appeals. In the rest, the judg- 
 ments are absolute, and this court can never restrain their col- 
 lection; the defence, if any, now being purely at law, and 
 the judgments having become absolute. In the five, the judg- 
 ments are suspended by the appeals, and it does not appear 
 that the questions therein are the same; and in the remainder, 
 the pleas are to the jurisdiction, and this court are not ap- 
 prised what are the questions that are to be tried, and cannot, 
 therefore, interfere. 
 
 7. The cases where the court interferes, are when it can
 
 16a CASES IN CHANCERY. 
 
 Firstcircuit. oi'der a single issue to be tried, and that tiiat shall decide the 
 '"^^^^^"'*^ whole. In this case, from various causes, it is impossible; 
 
 Lapeer i j j 
 
 •'''^f^ and when an injunction can thereupon be granted and made 
 """"*• perpetual upon the parties, the single right being decided. Here 
 this is also impossible. 
 
 •A. S. Porter and A. D. Eraser, contra. 
 
 TiiK Chancellor, — I am satisfied this case does not come 
 within the principles of any of the cases cited in support of the 
 injunction. 
 
 Bills of peace are only allowed where the complainant^ has 
 satisfactorily established his right at law; or where the -per- 
 sons who controvert the right are so numerous as to render 
 an issue under the direction of this court indispensable, to em- 
 brace all the parties concerned, and save amultiplicity of suits. 
 Fonb. Eg., 28; Eldridge vs. Bill, 2 Johns., Ch. 281. 
 
 It is not pretended in this case, that the right in litigation 
 has been established in favor of the complainants, on the con- 
 trary, all the cases which have been tried, have been deter- 
 mined in favor oi the defendants in this cause. 
 
 It is not indispensable that this court should interfere in the 
 present case, (on account of the great number of persons who 
 controvert the right,) and direct an issue under the control of 
 this court. The parties who have brought suits on the orders, 
 are all regularly in the courts of law, and each claims, in his 
 own right; nor is it pretended that the defence cannot properly 
 be made at law^ The complainants do not even ask this court 
 to interfere and direct an issue, but concede that their defence 
 is at law. : - 
 
 It is urged that more suits are brought than were necessary 
 to determine the right to recover. In the case of Peters vs. 
 Prevost, Paine' s U. S. Circuit Court Rep., 64, an application 
 was made for an injunction to stay proceedings in ninety-two 
 suits in ejectment, (where the parties pleading title, and the 
 testimony were the same in each suit,) until one or more could 
 be tried, and the remainder to abide the event, and the injunc- 
 tion was refused. If the suits in the present case were wrongly
 
 CASES IN CHANCERY. IGl 
 
 brought, the defendants below will recover their costs on Firstcircuit. 
 appeal; and while the statute does not inhibit the bringing of '^-^'^''"^-^ 
 suits in the manner in which these suits were brought, and ^'"""'-y 
 gives the right of appeal, it would be stepping beyond all pre- "'^'• 
 cedent for this court to stay proceedings by injunction, on the 
 ground of multiplicity of suits. 
 
 The fact that there were not sufficient funds in the treasury 
 to pay the costs of appeal, can hardly be seriously urged as a 
 reason for the interference of this court. 
 
 That the holders of these orders are unnecessarily harras- 
 sing the complainants, does not sufficiently appear; the suits 
 were all brought on the same day, before three diffi3rent justi- 
 ces, and the complainants appeared and defended. If suits had 
 been brought singly, from day to da}^ this allegation might 
 have been urged with more force. 
 
 I had doubts of the propriety of granting the injunction in 
 this case, and in any view I can take of the question, I am now 
 satisfied that it cannot be sustained. 
 
 The parties were all properly in the courts below, and are 
 now there, and it cannot be indispensable for this court to in- 
 terfere, to bring all the parties into one suit. Indeed, the 
 rights of each, for aught that appears, stands on grounds dif- 
 ferent from the other. 
 
 If the defendants did not take appeals, for want of funds, it 
 is one of those misfortunes against which this court cannot re- 
 lieve. 
 
 It is admitted that the defence is at law, and the parties 
 must there make it. 
 
 Injunction dissolved. 
 
 Vol. I. 21
 
 162 CASES IN CHANCERY. 
 
 Eldred and Eldred vs. Camp and Shumway. 
 
 1840. Where the equity of the bill is denied, the injunction, on motion, will be dissolved ; and where 
 
 Third Cir- jj j^ gj,own by a special plea that there is no equity in the bRl, it is the same, so far as regards 
 ^^ J,^ the motion to dissolve, as though the equity of the bUl was fully denied by answer. 
 
 Eldred ut • t i • • 
 
 vs. Motion to dissolve an injunction. 
 
 Camp. . <■ 1 
 
 January 24. This WQs a Creditors' bill in the usual' form, setting lorth 
 that the complainant, Daniel B. Eldred, recovered against the 
 defendant Camp, and one Boville Shumway, two judgments in 
 the circuit court for the county of Calhoun, and that execu- 
 tions had been duly issued on said judgments, delivered to the 
 sheriff, and returned unsatisfied; that the sum of $621 28, with 
 interest from November 10, 1838, over and above all just claims 
 by way of set off, or otherwise, was, at the time of filing the 
 bill, due to the complainant, Daniel B. Eldred, on the judg- 
 ments. 
 
 An injunction was granted. 
 
 The defendant Camp, put in a special plea to the bill, in 
 which he admits the recovery of the judgments, the issuing of 
 the executions, the delivery of the same to the sheriff, and the 
 amount due as stated in the bill, and then proceeds: "Yet this 
 defendant severally pleads in bar to the said complainant's said 
 bill of complaint; and says, that after the issuing of the two 
 executions above mentioned and described, on the said two 
 judgments above mentioned, with the commands, endorsements 
 and directions above set forth, and the delivery of the same to 
 the said sheriff of the county of Calhoun, in the life time 
 of the said two executions, and before the return day thereof, 
 to wit: on or about the 30th day of August, 1839, the said 
 sheriff' of the said county of Calhoun, to wit: Loren Maynard, 
 by his deputy. Solomon Platner, by virtue of said executions, 
 and the said endorsements so made thereon, as aforesaid, le- 
 vied upon and seized a large quantity of real estate as the 
 property of this defendant and the said Boville Shumway, the 
 defendants in the said executions, which said property is de-
 
 CASES IN CHANCERY. 163 
 
 scribed as follows, (describing the land;) and this defendant Thirdcir- 
 further severally says, that after such levy and seizure of the v,^^^-^^ 
 aforesaid described lands and real estate, by the said sheriff, '^''''^'^ 
 
 '' •/ 5 VS. 
 
 by virtue of said two executions, to wit: on the said 30th day '^'^'^' 
 of August, in the year last aforesaid, he, the said sheriff, by his 
 deputy above named, caused a notice of the sale of said lands 
 and real estate to be published in a newspaper called the Cal- 
 houn County Patriot, to take place on Friday the first day of 
 November then next, at the court house in the village of 
 Marshall, at one o'clock in the afternoon of that day, and that 
 afterwards, and on the sixth day of November 1839, the said 
 sheriff of the said county of Calhoun, by his said deputy, above 
 named, returned the said two executions to the clerk of the 
 said circuit court, out of which court the same where issued, 
 with a return endorsed upon each thereof, and signed by the 
 said deputy sheriff, that he returned said executions, property 
 on his hands, for the want of bidders; which executions were 
 each of them then and there filed by the said clerk, and the 
 aforesaid return of the said sherifl', entered by the said clerk 
 in the book of records kept by him, the said clerk, for that 
 purpose, pursuant to the provisions of the statute in such case 
 made and provided. And this defendant further says, that the 
 above mentioned and described executions, are the only exe- 
 cutions that have been issued upon the said two judgments, 
 and that if any such return as is specified in said complainant's 
 said bill of complaint, was ever made on said two executions, or 
 on either of them, by the said sheriff of the said county of Cal- 
 houn, or his said deputy, the same was falsely and fraudulently 
 made, by the aid, advice or procurement of said complainant, 
 or their solicitor or attorneys, after the said executions had 
 been so returned by the said deputy sheriff, wiih such return 
 thereof endorsed thereon and signed by him, as above specified, 
 and after said executions had been so filed by the said clerk, 
 and the return thereof so entered in the said book of records, 
 as aforesaid, without the knowledge or consent of this defen- 
 dant, or the said Boville Shumway, and without any leave for 
 that purpose obtained from the said Calhoun county circuit
 
 164 CASES IN CHANCERY. 
 
 Third cir- court All of which matters and things, this defendant does 
 
 y^^^^!^!-^^^ aver and plead to the said complainant's said bill of complaint, 
 
 Eidred jjj-|(;i humbly craves whether he shall make any other or further 
 
 vs. •' 
 
 ^^^^^' answer to the said bill of complaint." 
 
 This plea is verified by the oath of the defendant pleading 
 the same. 
 
 The defendants, upon filing the plea, moved to dissolve the 
 injunction. The motion came on for hearing at the January 
 term, in the third circuit. 
 
 Lee and Pratt, in support of the motion. 
 Sandford and Bradley, contra. 
 
 The Chancellor. Where the equity of the bill is denied, 
 the injunction, on motion, will be dissolved; and where it is 
 shown by a special plea, that there is no equity in the bill, it 
 is the same, so far as regards the motion to dissolve, as though 
 the equity of the bill were fully denied by answer. 
 
 A creditor's bill proceeds upon the ground that the com- 
 plainant has exhausted his remedy at law, and the regular re- 
 turn of the execution unsatisfied, by the proper officer, is evi- 
 dence of that fact. Here, it appears from the plea, that the 
 executions were not returned unsatisfied, and the facts set up 
 in the plea, are not denied. This defeats the equity of the 
 bill, and the injunction must be dissolved. 
 
 Injunction dissolved.
 
 CASES IN CHANCERY. 1G5 
 
 Henry Brockholst Livingston and Carkoll Li- 
 vingston vs. Enoch Jones and others. 
 
 The acknowledgment is no part of an instrument of assignment. lS-40. 
 
 The allegation in a bill that the assignment of a bond and mortgage was duly acknowledged f^'''st<-'ircuit. 
 before a commissioner of deeds nccordin? to Ihc laws of the stale of Xew York, where the ^-^^^v"^^^ 
 same was executed, is s,uflioieii[ on demurrer. Livinpston 
 
 VB. 
 
 A guardian has llie right to collect and receive money due to his ward, on a bond and niort- Jones, 
 gage, or sell and aj>ign the bond and mortgage ii. the exercise of his discretion as guardian. 
 
 This was a bill filed to foreclose a mortgage, and slated that February 25. 
 September 9,1834, Enoch Jones executed his bond to Henry I. 
 Seaman, John Van Wyck and Nathaniel Norton, in the penal 
 sum of $10,000, conditioned to pay said Seaman, Van Wyck 
 and Norton, their representative executors, administrators and 
 assigns, the sum of $5,000 on or before September 9, 1839, 
 with interest payable semi-annually, commencing on the ninth 
 day of March then next. That Enoch Jones and Sophia his 
 wife, in order to secure the payment of said sum of money, 
 with interest, on the same day executed a mortgage to said 
 Seaman, Van Wyck and Norton, their heirs and assigns, of 
 certain premises in the city of Detroit; that February 10, 
 1835, Seaman, Van Wyck and Norton assigned the bond and 
 nnortgage, for the consideration therein mentioned, to Billop 
 B. Seaman, guardian, &c., of Henry Brockholst Livingston, 
 Jasper Hall Livingston and Catharine Louisa Powell; that 
 March 23, 1835, the execution of the deed of assignment 
 which was made in the state of New York, was duly ac- 
 knowledged in due form of law, before D. Hobart, then being 
 a commissioner of deeds in and for the city and county of New- 
 York, agreeably to the law of said state; and May 12, 1825, 
 the deed of assignment was duly registered in the office of the 
 register of deeds for the city of Detroit; that June 18, 1836, 
 and before the money in the mortgage mentioned became due 
 or was payable, and before payment of the same or any part 
 thereof, Billop B. Seaman, guardian, &c., in consideration of 
 one dollar to him paid by Carroll Livingston, as attorney for
 
 bond and mortgage; and on the same day the execution of the 
 '^^- deed of assignment which was executed in the state of New 
 
 166 GASES IN CHANCERY. 
 
 First circuit. Hcnry Brockholst Livingston, assigned to Carroll Livingston the 
 
 Livingston 
 
 vs. 
 
 Jones. 
 
 York, was duly acknowledged, in due form of law before John 
 McVickar, junior, then being a commissioner of deeds in and for 
 the city and county of New York, in said state of New York, 
 agreeably to the laws of said state. That said last mentioned 
 assignment of said mortgage was made to Carroll Livingston as 
 attorney for Henry Brockholst Livingston, and for his sole and 
 exclusive use and beiiefit. That the interest had been paid up 
 to March 9, 1837, and the residue remained due and owing up 
 to the time of filing the bill. That there was due at the time 
 of filing the bill the sum of $525 00, interest. 
 
 That while Lewis Godard was owner of the premises and 
 before he sold and conveyed the same to Enoch Jones, to wit : 
 . May 1, 1833, he mortgaged the same premises to James* N. 
 Tuttle, to secure the payment of the sum of $5,000, in five equal 
 annual instalments. The bill charged most of the amount of 
 money mentioned in this mortgage from Godard to Tuttle, to 
 have been paid, and further stated, that December 22, 1836, 
 Enoch Jones sold and conveyed the premises to Lewis Godard, 
 who at the time of filing the bill, claimed to be the only pro- 
 prietor of the premises. That March 15, 1837, Godard mort- 
 gaged the said premises or some part thereof, to Henry H. 
 Brown to secure the sum of $10,000, payable three months af- 
 ter the date of said mortgage. That August 1, 1838, Godard 
 mortgaged the same premises to Enoch Jones, to secure the 
 payment of the sum of $10,000. 
 
 The bill averred that the deed granted by Jones to Godard, 
 as well as the mortgage granted by Godard to Brown, and 
 also the mortgage from Godard to Jones, were each of them 
 granted, accepted and received with the full knowledge and 
 notice of the prior lien of complainants mortgage on the pre- 
 mises. 
 
 To this bill, the defendant, Lewis Godard, demurs for se- 
 veral causes. 
 
 1st. That it does not appear that D. Hobart, before whom
 
 CASES IN CHANCERY. 167 
 
 the first assignment was acknowledged, was authorized by ihc Firatcircuit. 
 laws of New York to take acknowledgments of conveyances 
 of real estate. 
 
 2d. That it did not appear that John McVickar, jr.. before 
 whom the second assignment is alledged to have been acknow- 
 ledged, had authority, by the laws of New York, to take such 
 acknowledgment. 
 
 3d. That it did not appear by what authority Billop B. Sea- 
 man, who is alledged to have been guardian of the minors, and 
 to have held the bond and mortgage as such guardian, assign- 
 ed, sold and transferred the same. 
 
 4th. That Jasper Hall Livingston and Catharine Louisa 
 Powell, having an interest in the subject matter, are not made 
 parties. 
 
 D. GooDw^iN, in support of the demurrer, as to the third 
 cause assigned, said: 
 
 It is essential that it appear by what authority Billop B. Sea- 
 man sold and transferred the bond and mortgage. As guardi- 
 an, his authority is special, and he is confined strictly to it, 
 and he could not so dispose of the bond and mortgage as 
 he is alledged to have done, without special authority from a 
 court of competent jurisdiction, or unless specially authorized 
 by a statute of New Y'ork, and in either case, it must be shown 
 in the bill; and the purchaser purchasing of a guardian who 
 is, hy law, a special trustee, must look to his pow'er; and no 
 authority appearing, the complainants have not the title they 
 set up, and Carroll Livingston has none, but the title still re- 
 mains in the minors. Cited Reeves' Do7n. Rel, 325-6; Mor- 
 rellvs. Dickey, 1 Johns. Ch., 153. 
 
 A. D. Fkasek, contra. 
 
 In the 7th of Johnson's Chancery Reports, page 152, a case 
 is to be found decisive of the points made by the defendant 
 in this case, in respect to the power of a guardian. That was 
 a case also where a bond and mortgage were taken to a per-
 
 168 CASES IN CHANCERY. 
 
 Firstcireuit. SOU ill the character of a guardian, and the Chancellor, in his 
 opinion, states, '< that he had a legal control over the bond and 
 mortgage, and a right to collect and receive the money due 
 thereon; and a legalright to sell and assign the same, in the due 
 exercise of his discretion, as guardian, is a proposition that does 
 not seem to admit of disputed And the Chancellor further adds, 
 that " the necessity or expediency of the measure rested en- 
 tirely in the judgment and discretion of the guardian. He 
 was, as between him and the purchaser, the proper and the ex- 
 clusive judge of that expediency." See the several cases cited 
 by the Chancellor in that opinion. 
 
 It does not lie with the mortgagor to object that \he poioer 
 of sale was not regularly acknowledged and recorded. Jack- 
 son vs. Cohlen, 4 Cowen, 266. 
 
 The Chancellor. — The acknowledgment is no part of the 
 instrument of assignment. The allegation in the bill as to the 
 assignments having been duly acknowledged, according to the 
 laws of the state of New York, where the same were execu- 
 ted, are sufficient on demurrer. 
 
 The third cause of demurrer assigned, seems to be the point 
 most relied upon by the party demurring. 
 
 The bond and mortgage having been duly assigned to Billop 
 B. Seaman, guardian of Jasper Hall Livingston and Catharine 
 Louisa Powell, there can be no doubt that he had the legal 
 right to collect and receive the money due thereon, or sell and 
 assign the same, in the exercise of his discretion as guardian. 
 This principle is fully established in the case of Field vs. Schief- 
 felin, 7 Johns. Ch., 150; and the allegations in the bill of the 
 several assignments, are sufficient upon demurrer. 
 
 This is not a claim set up by the infants, alledging fraud in the 
 assignment, but it is a demurrer by Godard, who claims title 
 to the premises as subsequent purchaser from the mortgagor, 
 and, it having been decided that the guardian had a right to 
 assign the bond and mortgage and that the allegations in the 
 bill of such assignment are sufficient, the demurrer must be 
 overruled. 
 
 Demurrer overruled.
 
 CASES IN CHANCERY. 163 
 
 John Steward and others vs. Israel C, Stevens 
 
 and another. 
 
 The jurUdicUon of ihc court of chancery, to iipply the property of the defendent, which is l?40. 
 beyond the reach of an execulion ;;t law, to the saisfaclioii of the debt due to the judguienl »" ""at Circuit, 
 creditor, proceeds upcntlie f.roiind that he has exhaust:;d hisreuie.ly at lu.\v. ^■^^^/—^t./' 
 
 Steward 
 An execution cannot be legally returned unsatisfied, until the return day. ^g^ 
 
 Stevens. 
 A creditor's bill cannot be properly filed, until i;fer the return day of the execution at law, 
 
 though the execution should be actually returned before the return day. 
 
 This \vas a creditor's bill, filed September 5, 1838, and set Apriiao. 
 forth that the compKiiiiants recovered a judgment in the circuit 
 court for the county of Wayne, against Israel C. Stevens, 
 May 24, 1838, for the sum of $500 23, damages; that, July 
 12, a fieri facias was issued on the judgment, returnable on the 
 third Tuesday of November following; that the sheriff return- 
 ed the fieri facias the 28lh day of August, with a return 
 cndoi'sed thereon, "that after due and diligent search, he had 
 not been able to find any goods and chatties, lands and tene- 
 ments of the defendant, and, therefore, he returned the said 
 writ of feri facias unsatisfied." The bill alledged the full 
 amount of the judgment remained unsatisfied, and prayed for 
 a discovery, &cc. 
 
 To this bill the defendants demurred. 
 
 George E. Hand, in support of the demurrer. 
 
 This is a creditor's bill, filed under our statute, to reach equi- 
 table assest of a judgment debtor, but cannot be sustained, be- 
 cause, 
 
 1. The execution alledged in complainant's bill, to have been 
 issued and returned unsatisfied, was not endorsed, as to when 
 the cause of action accrued, as required by law, and was, there- 
 fore, irregularly issued. Laics of 1833, p. 433, sec. 30, 31. 
 
 2. The return of the sheriff, made on said writ, as alledged in 
 thebill, is wholly defective, and not good at law, and insufficient 
 to base chancery proceedings upon, under the statute. An in- 
 
 VoL. I. 22
 
 no CASES IN CHANCERY. ' 
 
 Firstcirciit. sufficient return is no return. Watson on duties of Sheriffs, 
 
 ^t^I^ClT' G9, 70, 76; 1 Bar. Sf Jl/d ,190. 
 Stevens. 3. Preliminary to filing a creditor's bill, our statute requires 
 return oi fieri facias unsatisfied. Revised Statutes, 365, sec. 25. 
 But \he fieri facias upon which this bill is based, was not returned 
 in pursuance of the command of the writ, but was irregularly 
 returned, long before the return day thereof, in fraud of the 
 statute, and not within its meaning or intent. 1 ^^rc/i. Prac, 
 286; 2 Burrows' Rep., 812; 2 Saunders' R., 101; 1 Salkeld, 
 321; 2 Lord Raymond, 144; 2 Tidd. Prac, 1,036; 2 Hoff. Ch. 
 Pr., 116; Watson's Sheriff, 70; Cro. E Hz., 512. 
 
 4. The remedy against equitable assest is given only in 
 cases where the legal remedy has been exhausted, and proved 
 unproductive, or not sufficiently productive to satisfy the exe- 
 cution; but the legal remedy is not exhausted until the expira- 
 tion of i\\G fieri facias, and on sufficient levy. And the writ may 
 be executed at any time before or on the day it is returnable, 
 even'although it should before that time have been returned 
 to the clerk's office. Rev. Stat., 355, sec. 25; Clarkson vs. 
 DePeyster, 3 Paige R., 322 ; Brinkerhonf vs. Brown, 4 J. C. 
 R„ 675; Arch. Prac, 266. 
 
 5. Hence, it necessarily follows, that a creditor's bill cannot 
 be filed until after the return day of the execution, issued upon 
 the complainant's judgment, even although the execution should 
 have been actually returned before that time, and so are the 
 authorities. Cassidy vs. JMeacham et. al., 3 Paige R., 311; 2 
 Hoff. Ch. Prac, 116. 
 
 Henry N. Walker, contra. 
 
 The Chancellor. — The first and second causes of demur- 
 rer assigned, it is not necessary now to consider. 
 
 The third cause of demurrer is well taken, and is conclusive. 
 The fieri facias was returned, and the bill filed, a long time before 
 the return day. The jurisdiction of this court, to apply the 
 property of the defendent, which is beyond the reach of ex- 
 ecution at law, to ihj satisfaction of the debt due to the judg- 
 ment creditor, proceeds upon the ground that he has exhausted
 
 CASES IN CHANCP1R\. 171 
 
 his re-nedy at law. Cassidy vs. Meacham, 3 Poi^re, 312. Un-'"'"'^"""- 
 til the return d.;y of the execution, it is the duty of ihc ofiicor ste«:rJ 
 to seize and sell any property of the defendant, found within sw^ns 
 his county. The execution, therefore, cannot be considered 
 as legally returned unsatisfied, until the return day. 
 
 In the case under consideration, it docs not appear but that 
 the officer, before the return day of the fieri facias, could have 
 found property sufficient to satisfy the judgment. The statute 
 {R. Slat., 365, sec. 25,) provides, that " uhenever an execution 
 against the property of the defendant, ^h dl have been issued 
 on a judgment at law, and shall have been returned unsatisfied, 
 in whole or in part, the party suing out such execution, may 
 file a bill in chancery against such defendant," &c. 
 
 This section is similar to a provision of the revised statutes 
 of New York, and in that state it has been uniformly held that 
 a creditor's bill cannot be properly filed, until after the return 
 day of the execution issued on the complainant's jud'^ment, 
 although the execution had been actually returned before the 
 return day. {S(e Beck vs. Burdett, 1 Po.ige, R.. 3Q5; Ed- 
 meston vs. Lyde, lb. 637; Clarkson vs. I)e Peyster, 3 Paisre's 
 R., 312, 320; Mc Elwin vs. IViUis, 9 Wend., 560.) And this is 
 unquestionably the true rule. A defendant ouijht not to bo 
 harassed by a suit in chancery, when he has property which 
 can be reached at law, during the life of the execution. 
 
 The demurrer is well taken, and must be sustained. 
 
 Demurrer sustained.
 
 173 CASES IN CHANCERY, 
 
 Zebulon Kirby vs. Justus Ixgersoll and Nehemiah 
 
 Ingersoll. 
 
 First Circuit. One pnrtner may bind Ins co-parlner in .ill matters wiihin the scope of the no-partnership ; the 
 v^^s/-^/ iini lied authority of one partner to hind his co-parlner, is generally limited to such acts as arc 
 K jri:v in '''eir nature, essential to the general objects of the co-partnership. 
 
 IngcrsoU. One pr.rtner cannot make a general assignment of the partnership effec's, to a trustee for the 
 benefit of the creditors of the firm, wiUiout the linowledge or consent of his co-partner, when 
 he is on the spot, and might have been consulted. 
 There is no inipliei authority resulting from the nature of the contract of co-partnership, that 
 will authorize one partner to make a general assignment of the partnership effects, without 
 the knowledge ui tOiisciii uf Ills co-irariiicr. 
 
 The nulhorlty implieiily vcs'.ed by each partner in the other, is for the purpose of carrying on 
 the concern, and not for the purpose of breaking ii up and destroying it. 
 
 One pr.rtner does not, by any implicaiion, confer a power upon his co-partner, of divesting him 
 of all inierest in, or aulhorily over, ihc concern. 
 
 One partner may transfer a portion of the assets, for ihepurposeof paying or securing debts, or 
 to raise means to carry on the concern; but the power of divesting entirely one partner of his 
 interest, .ippoin.ins; a trustee for both, and breaking up the concern, is not one of the powers 
 either contemplated or implied by the contract of co-partnership. 
 
 Where the coven.-vnls and conditions of bonds and other deeds are several, they may be good in 
 part, and void as to the residue. 
 
 The belter opinion seems to be, that even at common law, a deed fraudulent in part, is altoge- 
 ther voiii. 
 By the term fraud, the legal intent and effect of the acts complained of, is meant. 
 
 The law lias a standard for measuring the intent of parties, and declares an illegal act, prejudi- 
 cial to therights of others, a fraud upon such rights, although the party denies all intention of 
 connnilting a fraud. 
 
 The principle upon which general assignments, by one partner, have been declared void is, that 
 one partner ha< no anthority to make a general assignment of the partnership effects in fraud 
 of the righlsof his CO- partner to participate in the distribution of the partnerslrip effects among 
 the credi'.ors. 
 
 A distinction seems to have been taken between instruments void by statute, and void at coin- 
 mon law. 
 
 The construction to be put upon a deed conveying property illegally is, that the clause which so 
 conveys it, is void equally, whether it be by statute or at common law. This is the rule, ex- 
 cept in cases where the statute declares the whole inslruinenl void. 
 
 The c;.ses vhere instruments have been declared good in part, and bad as to the residue, seem 
 to have been bonds which were varient from ihe statute, or deeds which purport to convey 
 lands, some portion of which the party could not lawfully convey. 
 
 One good trust inserted in an illegal instrument of assignment, cannot make that instrument a 
 valid one. 
 
 A grantee, who v jluntarily becomes a pnrty to a deed which is fraudulent in part, forfeits bis 
 right to claim benefi. from another part, which would have been good. 
 
 October 6. The bill ill this case was filed September 5, 1839, and states 
 that November 9, 1833, complainant and Justus Ingersoll, one
 
 CASES IN CHANCERY. 11 '3 
 
 of the defendants, entered into a co-partnership in the trade rirsif^ircui-. 
 and business of tanners, curriers, and dealers in lealher; liiat ^^^^^ 
 they were to be equally interested, and devote their time and i„persoii. 
 skill to the management of the business, under the firm and 
 style of "Ingersoll & Kirby," and were to share the profits 
 equallv. That the co-partnership agreement was not reduced 
 to writing; was to continue so long as they should be satisfied 
 with each other. 
 
 That immediately on entering into the co-partnership, the 
 firm of IngersoU & Ivirby purchased stock in trade to a large 
 amount; that they purchased out the business of a firm then 
 trading in the city of Detroit, under the name of "Justus In- 
 gersoU & Co.," and undertook to pay the liabilities of said firm, 
 to the amount of the slock received from said firm, one of 
 which was a debt to complainant, of about $900. That at the 
 time of forming the co-partnership, said Justus resided at Me- 
 dina, in the state of New York, and continued to reside there 
 until September, 1838, when he removed to Detroit; tliat du- 
 ring his residence in the state of New York, said Justus did not 
 devote his time to the business of said firm, but was exclusively 
 engaged in conducting and carrying on his own private busi- 
 ness, for his own exclusive benefit. That complainant resided 
 at Detroit, where the business of said firm was carried on, and 
 devoted his whole time to the business of said firm; that the 
 business of said firm became prosperous and lucrative, and was 
 carried on without any material disagreement, until about the 
 month of November, 1838, when some difierence of opinion 
 arose as to the mode of conducting the business, and the said 
 Justus expressed a desire to close the said co-partnership busi- 
 ness; that complainant expressed his willingness to dissolve 
 the co-partnership, as soon as the business of the firm could be 
 placed in a situation to secure to the creditors of the firm the 
 immediate payment of their debts. That immediately, com- 
 plainant dii-ected the whole of his attention to the payment of 
 the liabilities of the firm, and to the collection of the out-stan- 
 ding debts due to the firm; that the liabilities of the firm had 
 been reduced, during ten months last past, about $11,000.
 
 174 CASES IN CHANCERY. 
 
 Firstcircnit. Tliit Complainant and said Justus had fnm time lo time, aS 
 Kirby fast as thcv could without prejudicing the rights or interests of 
 ingersoii. the Creditors of the firm, since that time, divided between them 
 certain of the property of the firm, so as to hold the same in 
 severalty, and not as partners; that among the property so set 
 apart to complainant, there were about 728 sides of upper 
 leather, of about the value of $2,000. That there was assign- 
 ed to said Justus as an offset for the property so assigned to 
 complainant, about 540 hides, of about the same value as those 
 assigned to complainant; that said Justus took possession of 
 the property so assigned to him, and shipped the same to Me- 
 dina, in the state of New York; that complainant took posses- 
 sion of the property so assigned to him, and packed the same 
 away apart from the partnership property, but leaving the 
 same in the same building where the co-partnership business was 
 carried on, and in a building contiguous thereto. That at va- 
 rious other times there was other divisions of the property of 
 said firm between complainant and said Justus, with the view 
 and intent to close the said co-partnership business as fast as 
 the same could be done without hazarding the interests of the 
 creditors or materially injuring the business of the firm. That 
 the property so set aside to complainant and said Justus, by 
 amicable division, was not charged or entered against either, 
 on the books of the firm. That August 28, 1839, while the 
 business of the firm was so in progress of final settlement, the 
 •said Justus Ingersoll, without any previous consultation with 
 complainant, and without complainant's knowledge or consent, 
 made or pretended to make an instrument of assignment or 
 indemnity to one Nehemiah Ingersoll, and in which assignment 
 it was, among other things set forth, that complainant and said 
 Justus were jointly indebted to James Abbott, of the city of 
 Detroit, for rent, accruing on a ceartain lease, bearing date 
 April 11, 1836, and that said Nehemiah was liable to pay the 
 said rent by reason of a bond signed by him for the said firm. 
 And that it was further set forth in said assignment, that said 
 Nehemiah was liable upon a certain bond bearing date Novem- 
 bes 19, 18.35, executed by him to the Farmers' and Mechanics'
 
 CASES liN CHANCERY. 175 
 
 bank of Michigan, for the benefit of said firm of IngcrsoU & f^'"<>^^"^^i'- 
 Kirby, in the penal sum of ^20,000 00, conditioned to pay the Kiny 
 sum of $10,000 00, or the amount of the indebtedness of the ingersou. 
 said firm to said bank, not to exceed that sum, and that the 
 present indebtedness of the firm of IngersoU & Kirby to the 
 said bank, for which said Nehemiah was Hable, was about 
 $10,000 00. That said Nehemiah was also hable as endorser 
 of a promissory note of said firm for the sum of $2,000, and 
 that said firm were willing, not only to secure and indemnify 
 the said Nehemiah, &c., on account of his liability on the bond, 
 but also to pay him the $2,000 .-ind lo secure to all other ci edi- 
 tors of said firm the payment of their just debts, out of the mo- 
 neys and eflTccls of said firm, afier such indemnification and 
 payment to said Nehemiah, and tor the purpose of such indem- 
 nification, the said Justus, using the name of the said firm of 
 IngersoU & Kirby, assigned to said Nehemiah the stock in 
 trade, or the greater proportion of it, amounting in value to 
 about the sum of $9,000, and notes and accounts belonging to 
 said firm to the amount of about $6,000, and in and by said 
 deed of assignment, gave said Nehemiah full authority to sell 
 and dispose of all the said property and collect all the said 
 debts and apply the proceeds of the same to ihe payment: 
 
 1st. Of the $2,000 due to him as endorser of said note. 
 
 2d. To pay off and satisfy any debts due from said firm 
 upon which the said Nehemiah was in any manner bound to 
 
 pay; and 
 
 3d. To pay and satisfy any other debt or debts justly due 
 or owino- by said firm; to retain out of the moneys collected, 
 a reasonable sum for his services, and to pay over to said Jus- 
 tus and complainant, the residue, &c. 
 
 The bill states that said Nehemiah is a brother of said Jus- 
 tus, and charges that said Justus was largely indebted, indi- 
 vidually, to said Nehemiah, for money loaned of him, and that 
 said assignment was made by said Justus not for the purpose 
 of securing any debt owing by said firm of IngersoU & Kirby 
 to said Nehemiah, or for securing or indemnifying him against 
 any debt or demand owing by the firm for which said Nehe-
 
 176 CASES IN CHANCERY. 
 
 First Circuit, niiali is security; that said iirm was in good credit at the time 
 j^ir,,y of making the assignment, and was then able to pay all its lia- 
 ingcrsoii. bililies and obligations; that said Nehemiah had been the en- 
 dorser of said firm during the whole time of its continuance, 
 and that there was not at the time of filing the bill any paper 
 on which said Nehemiah was liable, except that which is held 
 as collateral to the debts of said firm; that said Nehemiah ne- 
 ver became liable to pay any sum for the firm, by reason of 
 the protest for non-payment of the liabilities of said firm; that 
 said firm are not indebted to the Farmers' and Mechanics' 
 bank in the sum of $10,000, but that their whole indebtedness 
 to said bank is $0,700, no part of which was yet due; that 
 since said assignment, complainant has been prevented from 
 attendinsj to the business of said firm, and when complainant 
 applied to examine the books and papers of the firm, he was 
 abruptly refused and told by said Justus that the papers, books, 
 notes and accounts of the firm were left in his, the said Justus' 
 charge and care by said Nehemiah, and that complainant could 
 have no access to them. 
 
 The bill further states that there is a large amount of pro- 
 perty, consisting of leather, hides and other stock, belonging 
 to said firm, which is not mentioned in the said assignment, 
 which is now in the possession of said Nehemiah and said 
 Justus, which complainant fears will be wholly lost to saiil 
 firm unless some person, duly authorized, should take posses- 
 sion of the same; that there is also a large amount of notes 
 and accounts due to the firm, wl.ich are not assigned, but are 
 in the possession of said Nehemiah and said Justus, and said 
 Nehemiah has demanded payment of the same; that said Jus- 
 tus in said assignment, has recognized a claim in favor of said 
 Nehemiah, to the amount of 82,000; that instead of the same 
 being a true and just account, said Nehemiah justly owes the 
 said firm of Ingersell & Kirby, the sum of $1,200; that im- 
 mediately after the said assignment, said Justus caused a no- 
 tice of the dissolution of the co-partnership to be published; 
 that some of the stock on hand, consists of hides, now in the 
 progress of tanning, which requires the constant attention of a
 
 CASES IN CHANCERY. 177 
 
 large number of hands to fit ihem for market, &c.; and that First circuit. 
 there is danger of the property of said firm being squandered ^.^^^^ 
 and the creditors defrauded, &c.; charges said iXehemiah to ingerioii. 
 be irresponsible, &c., and that he is disposing of the pro- 
 perty, &c. 
 
 The bill prays for an account; for an injunction, and the ap- 
 pointment of a receiver. Injunction granted. 
 
 The answer admits the co-partnership, the purchase of the 
 stock, &c., of the firm of J. Ingcrsoll & Co., to the amount of 
 $15,000; admits the indebtedness of the firm of J.. Ingersoll & 
 Co., to the complainant in about the sum of 6900, and that 
 that amount was credited to complainant as so much capital 
 paid in at the time of entering into the co-partnership; states 
 that complainant had been employed as clerk and agent for 
 the firm of J, Ingersoll & Co., and in consequence of inaccu- 
 racies in the statement of the affairs and inventory of the pro- 
 perty of the firm of J. Ingersoll & Co., made by complainant, 
 said Justus, (in order to compromise the matter and enable 
 the firm of Ingersoll & Kirby to proceed with the business,) 
 was obliged to pay Rufus Ingersoll and John Baglcy, (two of 
 the members of the firm of J. Ingersoll & Co.,) in the years 
 1833-4, the sum of about $3,G00 out of his individual funds. 
 Admits that complainant conducted the busines-* of the firm at 
 Detroit; states that complainant made all the sales, received all 
 payments, and that it appeared from the books of the firm up 
 to May 14, 1835, that payments had been made to Rufus In- 
 gersoll and John Bngley, to the amount of about $7,790; ad- 
 mits that said Justus resided at Medina, in the state of New 
 York, up to 183S, as stated in the bill, at which place he was 
 engaged in attending to his own business; but slates that by 
 the partnerslu'p agreement, said Justus was relieved from de- 
 voting any part of his time to the business of the firm; states 
 that the firm of Ingersoll & Kirby purchased large quantities 
 of hides at Detroit, and s(^nt them to said Justus to be tanned 
 at his establishment at Medina; that the costs and charges of 
 said Justus, which he had charged against the said firm, for 
 tanning said hides, amounted to about the sum of $10,000; 
 
 Vol. I. 23
 
 178 CASES IN CHANCERY. 
 
 First Circuit, states that during the eontinuraice of the said partnership, said 
 ^^"^"X"^^ Justus had sent from his establishment at Medina, to the store 
 ingersoii. ^^ '■^^ ^^^^ ^^ Detroit, large quantities of leather, oil, and 
 other materials, to be sold at and used in and about the busi- 
 ness of the firm of Ingersoll & Kirby, at Detroit, to the 
 amount or value of about $8,000. The answer further states 
 and charges, that the purchases made by complainant on ac- 
 count of said firm, amounts to about the sum of $122,000; 
 states that no cash book was kept by complainant, and that 
 complainant, was extremely negligent in keeping the books of 
 the firm; that complainant had appropriated a large amount oi 
 funds of the firm to his own use, without giving any account 
 therefor; that he had committed gross frauds upon the rights 
 of said Justus, in managing the afl^iiirs of said firm; that some- 
 time in the month of August, 1839, said Justus declared to 
 complainant, in positive terms, that he should make an assign- 
 ment of the partnership efl^ecls, for the purpose of paying and 
 securing the debts of the firm, and that he should proceed im- 
 mediately to dissolve the partnership, to which complainant 
 did not object; that August 27, 1839, said Justus, in the name 
 of the firm of Ingersoll & Kirby, made, executed and delivered 
 the assignment referred to in the bill, to said Nehemiah In- 
 gersoll, who is brother to said Justus, that complainant had 
 frequently, before making said assignment, expressed his wil- 
 lingness that said Justus should sell and tranfer all his interest 
 to said Nehemiah, and that he would be fully satisfied with 
 any arrangement which said Nehemiah should recommend for 
 the final settlement and adjustment of all the aflfairs of said 
 firm; admits there was some conversation about making a di- 
 vision of a part of the property of the firm, but denies that any 
 such division ever was made as is set up in the bill; that it 
 was agreed by complainant and said Justus, that said Justus 
 should tan all the raw hides which should be sent to him at 
 his establishment at Medina, for which said Justus was to be 
 allowed a reasonable compensation by the firm of Ingersoll & 
 Kirby; that it was known and approved of by said complain- 
 ant, that sraid Nehemiah was, from time to time, during several
 
 CASES IN CHANCE :iY. 179 
 
 years, advancing money to said Justus, for the benefit and on Firsicircuu. 
 the credit of the firm of Ingcrsoll & Kirby, which was used ^^^j^^J^^"^ 
 by said Justus in the business of said firm, and for the payment i:,5ersoii. 
 of which, the faith of said firm was pledged; avers that the 
 balance due from the firm to said Nchemiah, at the date of the 
 assignment, was at least $1,G00, wliich said firm was Icg.iljy 
 and equitably bound to pay; denies that said Nehemiah is a 
 debtor to the said firm; states that said Neheiniah has en- 
 dorsed for said, firm, since its commencement, to the amount 
 of $60,000; that he was, at the time of the assignment, di- 
 rectly liable to the said Farmers and Mechanics' bank, for said 
 firm, to the amount of $6,700; that he is further liable for the 
 payment of rent to James Abbott, for said Justus and com- 
 plainant; avers that the assignment was made for the purposes 
 therein expressed, and no other, and that it was made after 
 full notice by said Justus, to said complainant, of his intention 
 to make an assignment of the partnership property; denies 
 that all the property of the firm is not mentioned in the assign- 
 ment; denies that the firm was in good credit at the time of 
 making the assignment. The answer further states and char- 
 ges, that complainant has, since the commencement of said 
 partnership, received as net profits arising from the business 
 of said firm, the sum of $73,000; that the whole amount re- 
 ceived by said Justus, from said firm, individually, does not 
 exceed the sum of $20,000; denies that said Nehemiah is in- 
 solvent; also denies all fraud in making the assignment. 
 
 The complainant now moves for the appointment of a re- 
 ceiver, and the defendants move for a dissolution of the in- 
 junction. 
 
 Walker, Porter and Goodwin, for complainant. 
 
 1st. As to the power of one partner to assign partnership 
 property. (.S'ee Gow on partnership, 1^, and note; Colly er on 
 partnership, 217 and note; 1, Dessaus. Rep., 537; 4, cMcCord 
 Rep., 519; 5, Cranch, 'SOO; 4, Day's Rep., 428; 4, JVas.i., 
 Cir., C. Rep., 232; 3, Paige. C. Rep., 523; 5, Paige, Rep., 
 30.)
 
 180 CASES IN CHANCERY. 
 
 Firstcircuit. 2d. The answer shows that the debt due Abbott on the 
 girby lease was not a partnersliip debt, the lease being to Justus 
 ingersoii. Ingcrsoll and Zebulon Kirby, and therefore, partnership pro- 
 perty could not be assigned to pay it. 
 
 3d. The answer discloses the fact of a violation of the in- 
 junction by the defendants; by the rule laid down in Daly vs. 
 Daly, M. S. S., by this court a motion to dissolve an injunction 
 will not be entertained until the party violating the injunction 
 shall have paid in-to court a sum of money equal in amount to 
 the property disposed of. 
 
 4th. This violation of the injunction and the disposal of the 
 partnership property would, when taken with tiie other cir- 
 cumstances, seem to demand a receiver to protect the rights 
 of the creditors of the firm. 
 
 Howard and Eraser, for defendants. 
 
 J. M. Howard. 
 
 It is admitted by the pleadings, that complainant and J. In- 
 gersoii were, at the time of the assignment, partners in trade, 
 and that the assignment was made by J. Ingersoii in the name 
 of the firm. 
 
 The first question, therefore, which arises, is as to the power 
 of Justus Ingersoii to make the assignment, irrespective of the 
 fraud charged in the bill, which is fully denied by the an- 
 , swer. 
 
 The very relation of partners implies a confidence in each 
 other; such a confidence as makes each partner the general 
 atrent of the others, and renders his contracts in their name 
 and in reference to the partnership effects, the contracts of all 
 tlie others. In all simple contracts they are regarded as one 
 contracting party; and they are all bound, provided the con- 
 tract has reference to the co-partnership; Goio o?i part., 53, 
 54, 55; and such has been the law since the time oi' James the 
 /.; Jb., 73 to 75. 
 
 And Lord Mansfield declared that each partner has the 
 power, singly, to dispose of the whole of the partnership efl^ects;
 
 CASES IN CHANCERY. 181 
 
 and this results from the principle that partners are joint ten-^''^^^^'"""'^- 
 ants; one joint tenant may iavvfully dispose of the whole, Kirby 
 which is not the case with tenants in common. Fox vs. Hum- ingcrsoii. 
 bui^g, 3, Coup., 445; Barton vs. Wdliams, 7, Eng. Com. L. 
 Rej), 149; Lam. vs. Dwant, 12, J\Iass. 54. (See 10 Peters, 
 260.) 
 
 With regard to all efTects contributed, manufactured or pur- 
 chased to be sold for the benefit of the partners, each partner 
 in the course of trade has an absolute right to dispose of the 
 whole, and may assign it by way of pledge or security. Wat- 
 son on part., 67; Pursnn vs. Honker, 3, John R., 70, 71; Mills 
 vs. Biirher, 4 Day, R., 425; Harrison vs. S terry, 5, Crunch, 
 289; and the sale of one partner is the sale of both; and 
 such is the unity of right and interest, that one partner may 
 enter the appearance of the other in an action against all. 
 Goio. on Part.. 79, 195, and ajypendix, page 494; 7, T. R., 
 108. 
 
 The case o{ Dickinson vs. Legare, 1, Dessaus., 537, is the 
 first case in England or the United States, in which the prin- 
 ciple has been denied; but it should be remembered that it was 
 the case of one partner making an assignment while a prisoner 
 of war in the enemy's country and to an alien enemy, and has 
 not been sanctioned by any other decision, but overruled in 
 Robinson vs. Crowder, 4, McCord, 518, and in Egberts vs. 
 Woods, 3, Paige, 523, 
 
 The only point decided in Havens vs. Hussey, 5, Paige, 30, is 
 "that one partner cannot, without the consent and against the 
 known wishes of his co-partner, execute an assignment of all 
 the partnership effects to a mere trustee for the benefit of the 
 favorite creditors of the assignor." The case at bar, differs 
 greatly from that. Here the assignment is made directly to a 
 creditor of the firm. The answer shows that the firm owe 
 him about $1,600 00, and denies that the assignment was 
 made against the known wishes of the complainant, and shows 
 that he had every reason to suppose, indeed that he was di- 
 rectly notified, that it would be made, and that he did not dis- 
 sent. Here the assignee is authorized to retain the amount of
 
 182 CASES IN CHANCERY. 
 
 Firatcircuit. ^ig debt; and being responsible as indorser for the firm to the 
 ""^2^ amount of the $2,000 00 note, and bomid by his obligation 
 inJrL. to the Farmers' and Mechanics' bank to the amount of •'$7,000 
 00 for their benefit, and also to James Abbott for the pay- 
 ment of the rent of the premises leased by him to IngersoU 
 & Kirby, he is authorized, in order to secure and indemnify 
 himself, to sell the property assigned, to pay the debts for 
 which he is liable, and to indemnify himself out of the pro- 
 ceeds; after which payment and indemnification, he is requir- 
 ed to account to the partners for the residue of the fund. 
 
 The authorities make no distinction between the power to 
 sell and the power to indemnify by pledging the property;^ and 
 they all agree that it is the right of one to appropriate the 
 joint property for the payment or security of the debts of the 
 firm, in such manner and by giving such preferences as he may 
 think proper; and that preferences may be created, even if 
 the firm is insolvent. 3 Paige, 525, 520; Waheman vs. Gra- 
 ver, 4 Paige, 36; 1 Dallas, 248; 7 Mass., 257. 
 
 So far as N. IngersoU has an interest in the assignment, he 
 holds the property as a personal security, with full authority 
 to sell and out of the. proceeds to cancel his liabilities for the 
 firm having first retained the amount due himself, and the re- 
 sidue of the fund is to be applied in payment of any debts 
 which the firm may owe, without preference of one creditor to 
 another. There is no inequality, no authority to compound with 
 the creditors, and no terms whatever requiring 'them to dis- 
 charge their debts for less than the amount legally due; were 
 there such terms the assignment would be void. 2 Binney's 
 R., 174; 4 Dallas' R., 76; 4 Paige, 38-9. • 
 
 The decision in Havens vs. Hussey conflicts with that in Har^ 
 risen vs. Sterry ; and without any precedent to justify it, Chan- 
 cellor Walworth declares an assignment by one partner to a 
 trustee, void in law and equity, for the reason that it is no part 
 of the partnership business " to appoint a trustee of all the 
 partnership effects for the purpose of selling and distributing 
 the proceeds among the creditors, in unequal proportions.^' But 
 as if not satisfied with this decision, the same learned judge
 
 CASES IN CHANCERY. 183 
 
 brings this question again into doubt in the case of J\fiUs vs. f 'f^t circuu. 
 Jlrgal, Paige 588, in which he says, "tlierc may be 5o???e Kirby 
 doubt as to the right of the general partner, (it was a special ir.gersoii. 
 partnership under the New York statute.) to make an assign- 
 ment of all the partnership cfTects to a trustee, for any pur- 
 pose, without the express or implied assent of the special 
 partner." The case was, however, decided on other grounds. 
 
 But the law presumes the assent of the creditors to the 
 trustee, until they express their dissent, and their rights can- 
 not, therefore, be disturbed. DeForest vs. Bacon, 2 Conn. R., 
 633. 
 
 The question then arises, can the security which was placed 
 in the hands of N. IngersoU, by the assignment, be wrested 
 from him ^ or, in other words, docs the clause constituting him 
 a trustee, (an event which, by the way, may never happen,) 
 for the remaining creditors, vitiate and annul the whole con- 
 tract of assignment? 
 
 That security was so given, in pursuance of the authority 
 possessed and exercised by Justus IngersoU as a partner, (^ee 
 5 Paige, 31.) 
 
 A. D. Fraser. 
 
 It is competent for one of several partners '.-» make an as- 
 signment of the co-partnership property. Fox vs. Hanbury, 
 Cowper, 445; Bar ion vs. Williams, 5 Barn. ^ Aid., 395; Pier- 
 son vs. Hooker, 3 Johns. R., 70; Lylcs vs. Styles, 2 Wash. C. 
 C. 224; Lamb vs. Durant, 12 Mass., 54; Phrpont vs. Gra- 
 ham, 4 Wash, a C, 232; Mills vs. Barbor, 4 Daifs Rep., 428; 
 Harrison vs. Sterry, 5 Cranch, 269; Robinson vs. Crowdcr, 4 
 Mc Cord's L. 12., 519; Egberts vs. Wood, 3 Paige, 517; Cow 
 on part., 51, 53, 54, 73, 74, 75, 79; Appendix Taylor's case, Coll. 
 on part., 210, 217; Watson onpart., 67. 
 
 That a deed may be good in part, and void for the residue, 
 is the common law doctrine. United States vs. Bradley, 10 
 Peters, 243, 360; Pigot's case, 6 Coke Rep., part 11, 27. 
 
 The Chancellor. This case presents the broad question
 
 184 CASES IN CHANCERY. 
 
 Firstcircuit. of the right of one partner to make an assignment of all the 
 
 '-**"^^*^ partnership effects, without the consent or^oncurrence of his 
 
 ^'^''■^ co-oartner, who is on the spot, and acting in the business of the 
 
 Ingcrsoll. ' t- .11 * J 4^ 
 
 co-partnership. Perhaps no question has been presented lo 
 this court, of greater practical importance, than the present; 
 and it has been considered with a full and deep conviction of 
 the responsibility imposed upon the court in its decision. 
 
 The authority of one partner to make such an assignment, 
 if sustained in the present case, must be sustained in its broad- 
 est form. The two partners were both, at the time of the as- 
 signment, in town, and attending to the business of the firm. 
 The complainant, on proceeding to the usual place of business, 
 finds the brother of the other partner in possession, and is in- 
 formed that an assignment of all the partnership eftecls has 
 been made, and is denied all access to the books, and all inter- 
 ference with the property or business of the firm. 
 
 The allegation in the answer, that the subject of an assign- 
 ment had been mentioned to the complainant, to which he 
 made no objection, cannot aid the assignment. It is not pre- 
 tended that, at the time of actually making the assignment, he 
 was advised of it, or was in any manner consulted as to either 
 the assignee, the terms and conditions of the assignment, or 
 any thing else; but that the first notice to him was the infor- 
 mation, that he no longer had any thing to do with the part- 
 nership property or business. 
 
 Very different views seem to have been entertained upon 
 this subject, and it has become necessary to examine it with 
 care and attention. 
 
 It will be found that the dicta relied on to sustain the pow- 
 ers of one partner to make such an assignment, have been 
 thrown out under special circumstances, and that the reports, 
 upon a careful examination, do not sustain the exercise of the 
 power in cases like the present. The elementary writers, Gow 
 and Collyer. slate the rule to be, that one partner may bind 
 the others in all matters within the scope of the co-partnership, 
 and the implied authority of one partner to bind another, is 
 generally limited to such acts as are, in their nature, essential
 
 CASES IN CHAiNCERY. 185 
 
 to the general objects of the co-partnership. Does this rule Firstcircuii. 
 contemplate the authority here contended for? j^i^i.y 
 
 Is it intended, that wiien both partners arc on the spot, and ingersou. 
 where no difficulty exists in consulting; each other as to the 
 assifrnee, and the terms and conditions of the assis^nment, that, 
 by the law of partnership, they arc placed in such a position 
 that one partner, on repairing to the place of business, may 
 find all he possesses, together with the books and accounts of 
 the firm, transferred to a third person, placed entirely beyond 
 his reach, himself utterly excluded, and the business of the 
 firm ended without his knowledge or assent? This cannot be 
 contemplated. 
 
 Do the authorities cited, sustain the position ? The case 
 which has gone as far as any other, and much relied on in the 
 argument, is the case of Harrison vs. Sternj, 5 Crunch, 289. 
 In that case the question did not turn upon this point. But a 
 question was raised upon the validity of an assignment made 
 by one partner. 
 
 The court say in delivering the opinion: "The whole com- 
 mercial business of the company in the United States was ne- 
 cessarily committed to Robert Bird, the onh/ partner residing 
 in the country. He had the command of their funds in Ame- 
 rica, and could collect or transfer the debts due to them." And 
 it is manifest from the case, that the assignment was made of 
 a portion only of the assets, to obtain aid in carrying on the 
 concern. This case, from the entire showing, manifests clear- 
 ly, that this is an exception rather than the rule, and that it 
 was made under special circumstances; and such will be iound 
 to be the case in 2 Cowper, 445, also much relied upon. In- 
 deed, I have been unable to find any case, where the broad 
 power here asserted, has been sustained. Chancellor Wal- 
 worth, it is said, has countenanced this principle in the case of 
 Egbert vs. Woods, 3 Paige, 517; and it is unjustly, I think, said, 
 that he virtually decreed both ways, and that there is a dis-. 
 crepancy between the above case and that of Havens vs. IIus- 
 sey, 5 Paige, 31. 
 
 In the first case he says: "I do not intend to express an 
 
 Vol. I. 24
 
 186 CASES IN CHANCERY. 
 
 Firstcircuit. opinion in favor of the validity of such an assignment of the 
 ^^^^^ partnership effects to a trustee, by one partner, against the 
 ingirL. known wishes of iiis co-partner, and in fraud of his right, to 
 participate in the distribution of the partnership funds among 
 the creditors, or in the decision of the question which of those 
 creditors should have a preference in payment, out of the ef- 
 fects of an insolvent concern." Showing clearly, that after 
 an examination of the whole subject, that he did not believe 
 in the validity of such an assignment." In the case of Havens 
 vs. Husscy, he says: "Upon the most deliberate examination, 
 he was satisfied that the decision of the Vice Chancellor was 
 correct, that such an assignment is both illegal and inequita- 
 ble, and cannot be sustained." And further he says: "It is 
 no part of the ordinary business of a co-partnership to appoint 
 a trustee of all the partnership effects, for the purpose of sell- 
 ing and distributing the proceeds among the creditors, in une- 
 qual proportions. And no such authority can be implied. On 
 tlie contrary, such an exercise of power, by one of the firm 
 without the consent of the other, is, in most cases, a virtual 
 dissolution of the co-partnership, as it renders it impossible for 
 the firm to continue its business. 
 
 From a review of all the cases, it is clear that this power, 
 if sustained at all, must be sustained upon the implied authori- 
 ty for that purpose from his co-partner, resulting from the na- 
 ture of the contract of co-partnership. There is no such im- 
 plied power. The authority impliedly vested by each partner 
 in the other, is for the purpose of carrying on the concern, and 
 not for the purpose of breaking it up and destroying it. One 
 partner does not, by any implication, confer a power upon his 
 co-partner, of divesting him of all interest in, or authority over, 
 the concern. The elementary -writers upon the subject, do 
 not sustain this position. The adjudged cases, when carefully 
 examined, do not sustain it; and, assuredly, it is not sustained 
 by the nmson of the thing, or the dictates of justice. Every 
 consideration of public policy or commercial convenience, is 
 against it. The result to which I have arrived is, that a part-
 
 CASES IN CHANCERY. 187 
 
 ner may transfer a portion of the assets or obligations, for the Firstcircuit. 
 purpose of paying or securing debts, or to raise means to car- ^^"^^j^"^^ 
 ry on the concern; but that the powci- h<?rR asserted, of di- ingerBoii. 
 vesting entirely one partner of his interest, appointing a irua- 
 tee for both, and breaking up the concern, is not one of the 
 powers either contemplated or implied by the contract co-part- 
 nership; and it is best that it should be so. Else, who could, 
 with safety, enter into such a connection. On the other hand, 
 if partners cannot agree, and one partner is violating his duty 
 or endangering the rights of the other, the remedy is plain 
 and adequate. 
 
 This assignment is partly for the purpose of securing the 
 debts and liabilities of the firm to the assignee, as well as for 
 the purpose of making him a general trustee for the firm. It 
 was urged at the hearing, that" if the assignment was void in 
 other respects, it must be carried into eflect thus far. I am 
 inclined to the opinion, that effect may be given to the assign- 
 ment to that extent, but it is not now necessary to decide this 
 question. 
 
 From the views I have taken of this case, it must result in 
 the appointment of a receiver, and the application of the as- 
 sets must be under the direction of the court. 
 
 There are other considerations which render the appoint- 
 ment of a receiver appropi-iate in this case. It is contempla- 
 ted by the assignment, to secure the assignee from his liability 
 for the payment of money due upon a lease having some twen- 
 ty-five years to run, and clearly not within the scope of the 
 partnership. 
 
 The amount of the indebtedness of the firm to the assignee, 
 is a disputed one. It will follow then, that. a receiver must be 
 appointed, and the assignee directed to deliver over to such 
 receiver the partnership property and eflects, and account with 
 the receiver for whatever shall have come to his hands by vir- 
 tue of such assignment. 
 
 The counsel for the defendants requested to be further heard 
 upon the question of the appointment of a receiver; which re- 
 quest was granted.
 
 188 CASES IN CHANCERY 
 
 Firstcircuit. A. D. Fraser, for defendants. 
 
 vs. 
 Insersoll 
 
 ^fs! The court having decided that the assignments ought to be 
 
 set aside, by the bill in this case, is valid as respects the interest 
 of the defendant. Nehemiah Ingersoll, but inoperative as to all 
 others. The complainant now insists that the property em- 
 braced in the assignment, must go into the hands of a receiver. 
 This position is denied by the assignee,' who insists that it ne- 
 cessarily follows from the decision which has already been 
 made, that the trust shall remam with him, on whom the as- 
 signment conferred it. He submits that he cannot be deprived 
 of it, unless the case falls within some of the exceptions to be 
 found in adjudged cases upon this subject. The assignee con- 
 tends that the only legal operation and effect of the decision 
 which has been made, must be to render inoperative that part 
 of the assignment which purports to create a trust for the 
 benefit of those mentioned in the assignment, other than the 
 assignee. If the assignment is good for any beneficial purpose, 
 the assignee cannot be divested of the power and rights con- 
 ferred on him by it, unless the fund be in danger, or some 
 other strong ground urged which would justify the appoint- 
 ment of a receiver; and while he acts as assignee, he is as 
 much under the control and direction of this court, as a re- 
 ceiver would be, and bound to execute the trust, modified, 
 limited and qualified, as the court have already decided it 
 
 must be. 
 
 Under these circumstances, it is contented that a receiver 
 will not be appointed unless the property is shown to be in 
 dancrer; that the trustee is irresponsible, or where the plain- 
 tiff's rio-ht is not shown to be clear; must show some evil ac- 
 tually existing or danger to the property, or a strong special case 
 of fraud. Edw. on Receivers, 2 Ch.; WilUs vs. Corlis, 2 Edw., 
 286, 287, 288; Orphan Jlsylum vs. McCartee, 1 HopL, 429; 
 Verplanck vs. Caiiies, 1 J. C. R.. 58; Hugonin vs. Baseley, 
 13 Fes., 105; Middleton vs. DodsioelL Id., 266; Lloyd vs. Pas- 
 singham, 16 Ves., 59. 
 
 The assignee is subject to the control and direction of this
 
 CASES IN CHANCERY. 189 
 
 court, as much as a receiver would be. Shafl$herry vs. .^r- First circuit. 
 
 roicsmit/i, 7 Ves., 486, 487; Beaufoi^t vs. Berty, 1 P. JVms. 
 
 702. 
 
 II. N. Wakler, in reply. 
 
 The complainant insists in (his cause, that the deed of as- 
 signment is void, ab initio, for the following reasons. 
 
 1. That one partner cannot assign the partnership goods 
 without the assent of his co-partner. This position having, as 
 a general rule, already been settled by this court, it is unne- 
 cessary to say any thing ui)on it. The case of Havens vs. 
 Husseij, 5 Paige C/i. R., 30, lays down the true doctrine. 
 
 2. But this case is sought to be taken out of the rule on the 
 ground that the deed of assignment constituted Nehemiah In- 
 gersoll, the brother, a trustee as respects all the creditors of 
 the firm of Ingersoll & Kirby, but himself, and that he acquired 
 an individual right to the goods assigned, they having been 
 assigned to him to secure the amount due him from the firm, 
 and his liability for them as an endorser. 
 
 The decision that one partner cannot assign the partnership 
 effects, seems to settle this question. The doctrine contended 
 for by the counsel opposed, is that the deed may be good in part 
 and bad in part. This doctrine does not apply in this case. It 
 is only applicable where there are different clauses or covenants 
 in a deed which do not depend on each other. But where the 
 deed is entire, and the several clauses depend upon each other, 
 then the distinction ceases, and it must either be good for the 
 whole or bad for the whole. 1 Shej). Touchstone, 70, 71. 
 
 It is a necessary requisite that the person making the deed, 
 be able to contract. This is not the case here. Havens vs. 
 Hussey, 5 Paige Ch. R., 30; 1 Shep. Touchstone, 54. 
 
 It is a well established rule in courts of equity, that interests 
 of third persons gained by the fraud, imposition, or even un- 
 due influence over others, cannot be held by them. The in- 
 terest of the assignee here, if he has any, has been gained by 
 the fraud of Justus Ingersoll. Hugonin vs. Baseley, 14 Ves., 
 273, 289; Bridgeman vs. Green, Wilmot, 64; Hildreth vs.
 
 190 CASES IN CHANCERY. 
 
 Firstcircuit. Sands, 2 John., Chan. Report, 35, 42; Shephci-cVs Touchstone, 
 ^■''"'""^ QQ, G7. 
 
 Kirby ' 
 
 ^^- In cases of alledged fraud, the answer of the party is not to 
 
 be relied upon as to any advances, but positive proof is re- 
 quired. 3 P. Wms. R., 228; 2 Ves., 516. 
 
 In the case of Sands et. al. vs. Codwise et. ah, 4 John. R., 
 530, the court said that no right can be deduced from an act 
 founded in actual fraud. The cases in which a deed is set 
 aside on terms, is not at all analagous to this. Page 599. 
 
 The CHA^"CELLOR. Upon a former occasion, it was held 
 that the assignment in question could not be sustained, so far 
 as it purported to be a general one, to a trustee, for the pay- 
 ment of his own debt, in the first instance, and also as a gene- 
 ral trustee for all the creditors. It was then said that it would 
 follow, that a receiver must be appointed. 
 
 The reasons that induced the court to come to that conclu- 
 sion, were then stated. A further reason is urged, that it ap- 
 peared by the answer, that a considerable portion of the pro- 
 perty of the concern had been sold before filing the answer, 
 notwithstanding the injunction. 
 
 On that occasion the court remarked, that it was not con- 
 templated to decide the question whether the assignment could 
 be sustained, so far as it purported to constitute a security to 
 the assignee, he being a creditor; but it was said that the court 
 was inclined to the opinion, that it could be so far sustained, 
 on the authority of the case in 10 Peters, 363. The counsel 
 for defendants requested to be further heard, on the question 
 of the appointment of a receiver, and it has also been urged, 
 that a decision upon the validity of the assignment, should be 
 now entered; so that, if the defendants desire to enter an ap- 
 peal, it may be done, and a decision had in the appellate court. 
 This is certainly proper and desirable. In a question of this 
 importance, both in regard to principle and amount, every pro- 
 per facility for an appeal should be afforded. This has com- 
 pelled the court to examine this question, which, as it was not 
 contemplated then, to dispose of it as it had not before done. 
 In the case of United States vs. Bradley, 10 Peters, 363, which
 
 CASES li\ CHANCERY. 191 
 
 was a case arising on a paymaster's bond, it Avas held, that ^"'f'^'*-"''''^"'^- 
 when the covenants and conditions are severable, that bonds Kiri.y 
 and other deeds may be good in part, and void as to the resi- inser^ou. 
 due. In Hyslop vs. Clarke, 14 Johns. Rep. 464, Van Ness, in 
 giving the opinion of the court, says: '' The better opinion seems 
 to be, that even at common law, a deed fraudulent in part, is 
 altogether void."' This view seems to have been sustained 
 and carried out in the subsequent decisions in New York. 
 
 By the term fraud, it should be remembered that the legal 
 intent and effect of the acts complained of, is meant. The law 
 has a standard for measuring the intent of parties, and de- 
 clares an illegal act, prejudicial to the rights of others, a fraud 
 upon such rights, although the parties deny all intention of 
 committing a fraud. 11 Wend. 224. 
 
 The principle upon which assignments of this kind, have 
 been declared void is, that one partner has no authority to 
 make a general assignment of the partnership effects, in fraud 
 of the rights of his co-partner, to participate in the distribution 
 of the partnership effects among th'j creditors. Havens vs. 
 Hussey, 6 Paige, 31. 
 
 The implied authority of one co-partner is, that he may per- 
 form any act within the scope of the co-partnership, which 
 may be necessary to carry on the concern. Under tiiis implied 
 power, it has been held, that one partner may assign such por- 
 tion of the partnership effects as may be necessary in payment 
 of a debt, or to secure a creditor. But this is a general assign- 
 ment, and if sustained at all, breaks up and puts an end to the 
 co-partnership. If sustained, and the assignee is authorized to 
 go on and close up the affairs of the concern, does it not ne- 
 cessarily lead to all the consequences intended to be guarded 
 against in the decision in the case of Havens vs, Hussey ? One 
 partner, by selecting a creditor, large or small, as the assignee, 
 may eflfectually put the other partner out of the possession of 
 his property, and end the business without the knowledo-e or 
 assent of his co-partner. He is deprived of the right to which 
 the decision in 5 Paige, 31, declares he is entitled. 
 
 The preferred creditor has been selected without his know-
 
 192 CASES IN CHANCERY. 
 
 First Circuit, ledgc 01' conscnt, and a party who has been illegally placed in 
 possession of the entire partnership effects, if the views urged 
 irK'ersoii. ^7 ^'""^ coLinscl of the defendants are sustained, is entitled to 
 the custody, and has the right to settle and wind up the con- 
 cern. One good trust could always be inserted, and thus the 
 partner would do indirectly what could not directly be done. 
 Whatever view may be taken of the question, as to whether 
 this assignment may be void in part only, or in toto, it seems 
 to me inevitable, that, as the case now stands, a receiver should 
 be appointed. But, as it is urged that a decision be now en- 
 tered upon the validity of the assignment, and it seems but 
 just and proper that it should be done, I shall do so according 
 to the best reflection I have been able to give it. 
 
 A distinction seems to have been taken, in some of the cases, 
 between instruments void by statute, and at common law. 
 
 In the case in Peters, cited in support of this assignment, it 
 is said, quoting the opinion of Chief Justice Gibbs, that if an 
 act be prohibited, the construction to be jiut upon a deed con- 
 veying property illegally, is, that the clause which so conveys 
 it, is void, equally whether it be by statute or at common law. 
 This is undoubtedly the true rule, and there is no reason for 
 any distinction, except where the statute goes further, and de- 
 „ clares the whole instrument void. The cases where instru- 
 ments have been declared good in part, and bad as to the resi- 
 due, seem to have been bonds which wxre variant from the 
 statute, or deeds which purport to convey lands, some portion 
 of which the party could not lawfully convey. In the one 
 case, the bond may be valid in part only. The rights of no 
 one are interfered with. Effect is given to the bond so far as 
 it is in conformity with the statute. If it contains other con- 
 ditions or requirements, they are declared void. 
 
 So with deeds. The grantor may have title to nine hundred 
 out of a thousand acres of land, and may have no right to con- 
 vey the residue. Still, it would be unjust to deprive the grantee 
 of that to which the grantor had a title, and by giving it effect, 
 jjrotanlo, the rights of no one are violated. 
 
 Is it so here? The partner has been deprived of all control
 
 CASES IN CHANCERY. 193 
 
 over, or voice in the disposition of the eflecls of the co-part- Firstcircuit. 
 nership, without his consent. ../f 
 
 Shall eflect be given to tliis proceeding? Can the court ingcrsoii. 
 say,, where the whole eliects are mingled together, that it shall 
 take effect as to certain portions of the property, and be void 
 as to the residue? One good trust is inserted, but that cannot 
 make an illegal instrument a valid one. The legal and illegal 
 are so mixed and commingled, that if assignments of this cha- 
 racter are sustained to the extent asked, they may as well be 
 sustained in toto. 
 
 A grantee who voluntarily becomes a party to a deed which 
 is fraudulent in part, forfeits his right to claim a benefit from 
 another part that would otherwise have been good. 14 John- 
 son's Reports, 465. Here the assignee takes a general assign- 
 ment from a party not authorized to make such an instrument, 
 and 1 think it cannot be sustained. 
 
 The order is, that the assignment be set aside and declared 
 void, and that it be referred to a master to appoint a receiver; 
 and that said Nehemiah IngersoU deliver over to, and account 
 with, said receiver, for whatever shall have come to his hands 
 by virtue of said assignment. 
 
 Vol. I. 25
 
 194 CASES IN CHANCERY. 
 
 Fay vs. The Erie and Kalamazoo Railroad Bank, 
 
 1840. Where an individual creditor had filed his bill against a moneyed corporation, obtained an in- 
 Beconil Cir- junction and the appointment of a receiver, and the receiver had taltcn upon himself the trust, 
 and oilier creditors had filed their claims, it was held, that the creditor who had filed his bill. 
 
 Fay 
 
 obtained the injunction, and the appointment of a receiver, was not entitled, as a matter of 
 
 -vs. right, (upon being paid his demand,) to dissolve the injunction, dismiss his bill, and tlischarge 
 
 Erie and ,. 
 
 Kalamazoo the receiver. 
 
 Bunk. There is no doubt that this court has the power, in such case, to dissolve the injunction, dis- 
 
 charge the receiver, and permit tlie party to dismiss his bill, when it is satisfied that the inte- 
 rest of all concerned will be best subserved by permitting the corporation to manage its own 
 concerns. 
 The primary object of proceeding in chancery against failing corporations, is not for the pur- 
 pose of dissolving tlie corporation, but to protect the assets for the benefit of creditors. The 
 power to decree a dissolution of the corporation, is merely incidental. 
 
 It is the duty of the court to look into the condition of the corporation, before it will discharge 
 the receiver, and make such order, either absolute or conditional, as the case may retjuire. 
 
 This was an application on the part of the complainant, to 
 dissolve the injunction granted in this case, to dismiss the bil}, 
 and discharge the receiver. A sufficient statement of the 
 facts in the case, will be found in the opinion of the Chancel- 
 lor. 
 
 Goodwin and Morey, in support of the motion. 
 
 George Mills, contra. 
 
 The Chancellor. This application is founded upon an ac- 
 knowledgment of payment by the creditor, and a motion on 
 his part, to dissolve his own injunction, and discharge the re- 
 ceiver. No provision is made for the payment of the expen- 
 ses incurred by the receiver, or to indemnify him against lia- 
 bilities. 
 
 It is insisted that this application must be granted as a mat- 
 ter of right, and that the complainant and defendant having 
 adjusted the debt claimed by the complainant, that no other 
 persons have any interest in the matter, or any right to inter- 
 pose any objections to the order asked. 
 
 If no rights, on the part of other creditors, have been ac-
 
 CASES IN CHANCERY. 195 
 
 Bank. 
 
 quired under this proccedinf^, and the receiver has incurred no Second cu- 
 liabilities to other creditors, this view is undoubtedly correct, ^.^-v-x^ 
 To ascertain this, it becomes necessary to resort to the statu- ^^'/ 
 tory enactments upon which these proceedings arc based. Kai?.u"zoo 
 
 The act of June 21, 1837, {Session laws of 1837, page 307,) 
 "which is the first act bearing upon the subject, provides, that 
 proceedings may be commenced by the Attorney General, or 
 by any creditor, and makes no distinction in the mode of pro- 
 ceeding, '^whether the suit shall have been instituted by either 
 the one or the other. 
 
 Section five of the same act, provides that the receiver, up- 
 on his appointment, shall be vested, as trustee, with all the es- 
 tate, real and personal., liabilities and securities, of such cor- 
 poration. 
 
 The act of April 15, 1839, {Session laivs, page 94,) further 
 prescribes and defines the duties and liabilities of receivers. 
 (^See sections 11 and 17.) 
 
 This renders it necessary to examine the statute prescribing 
 the powers, duties, and obligations of assignees. Revised sta- 
 tutes, page 606. 
 
 The first section provides, that all assignees are declared to 
 be trustees of the estate of the debtor, in relation to whose 
 property they shall be appointed, for the benefit of his credi- 
 tors. 
 
 After this reference to the various provisions of the statute, 
 the question recurs, may an individual creditor, after having 
 commenced proceedings under the statutes before referred to, 
 and pursued his remedy until a receiver has been appointed, 
 and taken upon himself the trust, and until other creditors 
 have filed their claims, and still, at this late sta^e of the pro- 
 ceedings, upon being paid his particular demand, as a matter 
 of right, dissolve the injunction, dismiss his bill, and discharge 
 •the receiver, without any right or duty, on the part of the 
 court, to.protect the rights of the other creditors, who may 
 have filed their claims with him, or to protect and save harm- 
 less the receiver, who has acted under its authority ? I thuik 
 not.
 
 vs. 
 Erie and 
 Kalamazoo 
 Bank. 
 
 196 CASES IN CHANCERY. 
 
 second cir- The statutes bearing upon the question, it is true, are not 
 ^J^^C'^^ very expUcit or satisfactory. But, from the examinations I 
 Fay have been enabled to give them, I cannot resist the conclusion, 
 that, from a fair construction of their provisions, their object 
 and intent is not solely to afford a remedy to the individual 
 creditor to collect his demand, but that they contemplate also 
 the security of such other creditors as may file their demands 
 with the receiver, and thus, so far, become parties to the pro- 
 ceedings. 
 
 This view necessarily involves another question : Is it im- 
 perative upon the court, after the appointment of a receiver, 
 to hold jurisdiction of the case, and require the receiver to pur- 
 sue his duties, until the concern is wound up and dissolved, al- 
 though the party complainant in the suit, is satisfied, and de- 
 clines further to prosecute, and when the proper prosecuting 
 officer on the part of the state, is satisfied that the application 
 of this severe remedy is unnecessary; and if, further, the 
 court is satisfied that the interests of all concerned will be best 
 subserved by permitting the corporation to manage its con- 
 cerns, and that it may be safely done? The court entertains 
 no doubt that it is vested with this power. The primary ob- 
 ject of proceedings in chancery, against a failing corporation, 
 is not a dissolution of its charter, for a violation, but to pro- 
 tect the assets for the benefit of the creditors. This power is 
 merely incidental. This court having jurisdiction of the cause 
 for other purposes, the legislature has also conferred the power 
 to decree a dissolution of the charter. 
 
 But this is the proper duly of a court of law; and for this 
 purpose, proceedings may be instituted at any time in the com- 
 mon law courts, for any violation of the provisions of its char- 
 ter, by a corporation. 
 
 The conclusion, then, to which I arrive in this case, is, that 
 it is the duty of the court to look into the condition and cir- 
 cumstances of this corporation, and to make such order, either 
 absolute or conditional, as the case may require, upon such 
 showing made by the parties who press this motion.
 
 CASES IN CHANCERY. 197 
 
 Charles II. Carroll vs. The Farmers' and Mecha- 
 nics' Bajvk and otliers. 
 
 On a motion to dissolve an .'njimclioii an aflidavit is admissible, which goes to show that the lf'40. 
 
 ^ ... , ■ ■ • • , J ■ FirPlCircuit. 
 
 injunction was irregularly issued, or that the officer allowing the injunction was misled and 
 
 induced to grant the injunction contrary to law. 
 
 Carroll 
 
 Where the bill seeks a discovery in aid of proceedings at law, the rule is, that the complainant ^'^ 
 
 Farmers' and 
 ronst charge in his bill that the facts are known to the defendant and ought to be disclosed by Mechanics' 
 
 hi.n, and that the complainant is unalile to prove tlicm by other testimony -, and it must be af- Bank. 
 
 firmatively stated in the bill that the facts sought to be discovered arc material for such 
 
 purpose. 
 
 The statute (R. S. 374, s. 91,) is positive .ind peremptory that no injunction sliall be granted to 
 restrain proceedings at law, when a cause is at issue without filing a bond in such sum as the 
 officer allowing the injunction shall prescribe. 
 
 When an injunction is asked to stay proceedings at law, it is incumbent upon the comphiinant 
 to show in his bill the state of the pleadings, and the court in which the suit is pending, in or- 
 der to enable the olHcer to wlioni the application is made for the allowance of the injunction 
 to Judge of the propriciy ot its allowance and to prescribe the terms on which the some shall 
 be allowed. 
 
 Courts of chancery will not sustain an injunction bUl to restrain a suit or proceeding previously 
 commenced in a court of a sister state or in any of the federal courts. 
 
 The bill in this case was filed to rescind a contract on the >iay2o. 
 the ground of false and fraudulent representations, and for re- 
 payment of money paid. &c., and states among other things 
 that complainant purchased of Nehemiah O. Sargeant, (since 
 deceased,) July 28, 183G, certain property in the village of 
 Kent, state of Michigan, for which said property complainant 
 agreed to pay the sum of $8S,000; that said sum of -$83,000 
 was paid and received as follows: for $5,000 a draft or check 
 at sight 01} the bank of Michigan in the city of Detroit, was 
 given to said Sargeant, which was paid to him on presentation. 
 A draft or check for $18,000 payable to the order of said Sar- 
 geant ninety days after August 1, 1830, at ihe Phoenix bank, 
 in the city of New York; and for the remaining $60,000 com- 
 plainant executed to said Sargeant a bond in the penalty of 
 $120,000, conditioned to pay the said sum of $00,000 in twelve 
 annual instalments of $5,000 each. 
 
 The bill further sets forth that there had been paid upon said 
 purchase by complainant, the sum due at the limes following,
 
 198 CASES IN CHANCERY. 
 
 First Circuit, ^q ^H; jj-, ^^^ moiith of December, 1837, the draft on the bank 
 
 Carroll of Michigan of $5,000; in the month of February following, 
 
 Farmers'arid the sum of $5,216 00 on the bond; December 28, 1836, the 
 
 Mechanics' • i i i i ^ r r 
 
 Bank. sum of $4,942 44 was paid on the check or draft for $18,000. 
 
 That at the time of the payments aforesaid, complainant had 
 not discovered the falsity of many of the material parts of the 
 representations of said Sargeant, and was ignorant of the da- 
 mage which he had sustained by and through the fraud and 
 deceit of said Sargeant. States and charges that said check 
 or draft for $18,000, was, immediately on receiving the same 
 by said Sargeant from complainant, endorsed by said Sargeant 
 to John A. Welles, cashier and director of the Farmers' and 
 Mechanics' bank of Michigan, and that said Welles received 
 the same. Charges that said Sargeant was largely indebted 
 to the said Farmers' and Mechanics' bank. States that said 
 bank, or the officers thereof, received said check at first, for 
 collection, and that they had no interest in or title to said check 
 or draft before its maturity. States that a suit was commen- 
 ced on the check or draft after the same became due in 1838, 
 by said Sargeant against complainant, in the supreme court of 
 the state of New York; that before the trial said Sargeant 
 died and the suit abated. States " that since the death of said 
 Sargeant said Farmer's and Mechanics' bank claim to be the 
 owners and holders of said check or draft, and have commen- 
 ced and threaten to prosecute a suit thereon for their own be- 
 nefit against complainant." Charges that said Farmers' and 
 Mechanics' bank did not become the holders and owners of said 
 check or draft for $18,000 before its maturity for a valuable 
 consideration and without notice of the equities subsisting be- 
 tween said Sargeant and comj)lainant. States '-that the facts 
 of the case, so far as the claims of the Farmers' and Mecha- 
 nics' bank are involved, lie especially in the knowledge of the 
 said John A. Welles, the cashier thereof; ' " that a discovery 
 from said John A. Welles of the various matters charged, is 
 necessary for the enforcement and support of the complainant's 
 just rights in the premises, &c.
 
 CASES IN CHANCERY. 199 
 
 An injunction was allowed by the Hon. C. W. Whipple, one f^'^tcircuir. 
 of the associate justices of the supreme court. cnrroii 
 
 r>. 
 1 I • 1 I • • • 1 /> 1 Farmers' on 1 
 
 A motion was made to dissolve the iniunction upon the fol- iviMhanicb' 
 
 -' ^ Bank. 
 
 lowing affidavit. 
 
 State of Michigan, Wayne County, ss. 
 
 John A. Welles, of the city of Detroit, in the county and 
 state aforesaid, one of the defendants in the above entitled 
 cause, being duly sworn according to law, deposeth and saith, 
 that from reading the bill of complaint filed in this cause, he 
 has ascertained that the president, directors and company of 
 the Farmers' and Mechanics' bank of Michigan and this de- 
 ponent, are made parties defendants to the said complainant's 
 bill of complaint, by reason or on account of a certain draft, 
 bill of exchange or check drawn by the said complainant on 
 the Phoenix bank in the city of New York, for the sum of 
 eighteen thousand dollars, which said check or draft was paya- 
 ble to the order of Nehemiah O. Sargeant, ninety days after 
 the first day of August, in the year eighteen hundred and thir- 
 ty-six; and this deponent further saith, that the said check was 
 discounted by the said Farmers' and Mechanics' bank while 
 this deponent was present and acting as their cashier, that the 
 amount thereof, less the discount for the time the said draft or 
 check had to run before maturity, was paid to Nehemiah O. 
 Sargeant at the time when the same was discounted. 
 
 And this deponent further saith, that the said check or draft 
 was not paid at maturity, but the same was returned to said 
 Farmers' and Mechanics' bank dishonored; that a suit has 
 been commenced in the supreme court of the slate of New 
 York by the said bank, against the said Charles H. Carroll the 
 complainant in this suit, for the amount due or unpaid on the 
 said draft or check; that the said suit was put at issue pre- 
 vious to the first day of November, eighteen hundred and thir- 
 ty-nine; that said suit so pending in said supreme court of the 
 state of New York, was noticed for trial on or about the ele- 
 venth day of November, eighteen hundred and thirty-nine; 
 that previous to said last mentioned day the defendant in said
 
 200 CASES IN CHANCERY. 
 
 First Circuit, g^it at law, (the complainant in this cause,) filed his bill of cotn- 
 carroii plaint in the court of chancery in and for the said state of 
 FarniM^'and Ncw York, against the said bank, plaintiff in the said suit at 
 bank"'"^^ law, and Randall S. Rice, administrator of the estate of Nehe- 
 miah O. Sargeant, deceased, and obtained from said court of 
 chancery in said state, an injunction restraining the proceed- 
 ings of said bank in the said suit, on the draft or check afore- 
 said, as well as the said Rice, administrator of said Sargeant. 
 
 And this deponent further saith, that he examined and read 
 the said complainants bill of complaint so filed in the court ol 
 chancery for the state of New York, and so far as the said bill 
 related to the said Farmers' and Mechanics' bank, it was for 
 the prevention of the said bank from the collecting the said 
 check, and the same allegations in substance were made 
 against the said bank in said bill as ai'e made in the bill of com- 
 plaint in this cause against this deponent and the said banic, 
 that upon the said injunction so granted in the state of New 
 York, being served upon the attorney of the said bank, the said 
 suit pending in said supreme court was continued; that imme- 
 diately thereafter, or as soon as the said bank could do so, a 
 full answer to the allegations in the bill of complaint filed in 
 said court of chancery, was prepared and verified by the affi- 
 davit of this deponent; that upon filing the answer of said 
 bank, a motion was made before the honorable Reuben H. 
 Walworth, chancellor of the slate of New York, -for the dis- 
 solution of the injunction previously granted in said state. 
 
 And this deponent further saith, that the motion to dissolve 
 the said injunction came on to be heard before the Chancellor 
 of said state on the twenty-third day of April, now last past, 
 whereupon an order was duly made, dissolving said injunction, 
 as will more fully appear by reference to a copy of said order 
 hereunto annexed. 
 
 And this deponent further saith, the said suit is still pending 
 in the supreme court of the state of New York, on said check; 
 that the defence set up by the defendant in said suit, (the com- 
 plainant in this cause,) is, that the check or draft, was pur- 
 chased by the said bank after it became due, or that it was ta-
 
 CASES IN CHANCERY. 201 
 
 ken in payment of some previous indebtedness, of said Nehe- Firstcircuu. 
 miah O. Sargeant, to the said baniv; all of which allejrations ^-^^'^"''^ 
 and pretences were fully and explicitly denied in the answer Farmers and 
 of said bank, to the bill of complaint, filed in the court of chan- uauk!""'''' 
 eery for said state of New York. 
 
 And this deponent further saith, that he has visited the state 
 of New York once as a witness in said cause, pending in said 
 supreme court, and the trial was prevented by said injunction; 
 that he has recently received notice, that the said cause is no- 
 ticed for trial on the first Monday of June next, and the atten- 
 dance of this deponent is requested as a witness; and this de- 
 ponent saith he is fully and particularly acquainted with all 
 the facts relative to the purchasing or discounting said draft 
 or check, by said bank. 
 
 And this deponent further saith, that he has good reason to 
 believe, and does believe, that unless the said bank is permit- 
 ted to proceed in said suit at law in the state of New York, at 
 the next term of said court, or unless the said complainant be 
 compelled to give security in this court, the said bank will suf- 
 fer irreparable injury. 
 
 And this deponent further saith, that it will be impossible to 
 procure from New York, such papers, or copies of them, as 
 have been necessarily forwarded there to defend said suits, as 
 will be required to make a full and complete answer to this 
 bill of complaint, in time to move ibr the dissolution of the in- 
 junction in this cause, before the day on which the said cause, 
 now pending in said supreme court, is noticed for trial. And 
 further this deponent saith not. 
 
 JOHN A. WELLES. 
 
 SvkTorn to and subscribed before me, tliis 14th May, A. D., 
 1840. 
 
 HENRY H. BROWN, 
 JsTotary Public, W. C, Mich. 
 
 A copy of the order of the court of chancery of the state 
 of New York, dissolving the injunction issued upon the bill 
 Vol. L 26
 
 202 CASES IN CHANCERY. 
 
 Firatcircuit. filed in that state by the complain?ait, is attached to the affida- 
 
 CarroU 
 
 MeXbc^s"'* H. N. Walker, in support of the motion. 
 
 Bank. 
 
 1. Where an injunction is granted to stay proceedings at law, 
 it is proper to make a motion, based on an affidavit, to dissolve 
 or alter the terms of it. 1 JVawland's Prac, 226; 2 Madd. 
 Prac, 224', 6 Veseij, 109, 110; 2 Chan. Cas., 203; 2 John. 
 Chan., 140. 
 
 2. There is no doubt but the court has the power to grant 
 an injunction against a person's proceeding in a foreign court. 
 4 Bridg. Digest, 323; Eden on Inj., 144; 5 Vescy, 27, 71; 5 
 Mtidd. Rep. 297, 309; 6 Madd. Rep., 16; 4 Bridg. Dig., 340. 
 But the court will not, as a matter of policy and courtesy, re- 
 strain the proceeding commenced in a sister state. 2 Paige 
 Chan. Rep., 403, 404; 4 Cranch R., 179; 7 Cranch R., 278; 
 2 Story's Eq. Com., 186. 
 
 3. The bill in this case is defective. The statute provides, 
 that a bond shall be given, under certain circumstances, and 
 money paid into court under others. The Ijill should state, 
 then, what is the situation of the suit at law, so as to enable 
 the Chancellor or judge to determine what order to make. R. 
 S. Mich., 374, 375. 
 
 The general rule is, that if a declaration has been filed, the 
 plaintitf at law will be permitted to proceed to execution. 
 Hence the necessity of stating the precise situation of the suit. 
 10 Vesnj, 450; 18 Vesey, 488; 1 .\ew. Chan., 216; 2 Madd. 
 Prac, 220; 3 Paige R., 33. 
 
 It has not the requisites of a bill of discovery, there being 
 no averments that the answer is wanted in evidence, in ano- 
 ther court, which is necessary. Story's Com. Eq. Plead., 422; 
 Mitford's PL, 186; 2 Story's Eq. Com., 710; 2 Joh?i. Chan. 
 Rep., 547, 548; Cooper's Eq. Plead., 191; 2 Ves., 451. 
 
 4. But, conceding the point that the bill is perfect and suffi- 
 cient, the injunction was improperly issued until a bond was 
 given, in accordance with the statute. 2 R. S., JV*. ¥., 188; 
 R. S., Mich., 374. It will be observed that the two statutes are 
 '>Uke. 3 Paige, 395; 3 Paige, 33; 1 Hoffm. Chan. Prac, 85.
 
 liaiik. 
 
 CASES IN CHANCERY. 
 T. RoMEYx, contra. 
 
 1. The afTuIavit of John A. Welles is inadmissible on this *""7°" 
 motion. There arc but two ways of dissolving an iiijunction: MJ-cliankt"^ 
 upon answer, or on the bill. 2 John. Cli. Rep., 202; 1 Hoff- 
 man's Pr., 3G1; 1 Edw., 24; Eden on Inj., 65. 
 
 2. The affidavit, if received, is insufTicient. Paige, 109; 
 1 Paige, 427. 
 
 3. The affidavit of the defendant's counsel, is a sufficient an- 
 swer to the equity of the motion. 
 
 4. The complainant should have reasonable time to file the 
 bond. The court can exercise a discretion in this matter. 1 
 Paige, 427;' 2 Jolm. Cli. Rep., 202, 203, 227. 
 
 The Chanckllor. A preliminary question is made, as to 
 the reception of the affidavit of John A. Welles. So far as 
 the affidavit shows that the injunction was irregularly issued, 
 or that the officer allowing the injunction has been misled, and 
 induced to grant an injunction contrary to law, the affidavit is 
 admissible. 
 
 2. As to want of equity in the bill. The bill alledges, that 
 an answer from said John A. Welles, is necessary for the en- 
 forcement and support of the complainant's rights in the pre- 
 mises. 
 
 The rule is, that the complainant shall charge in his bill, that 
 the facts are known to the defendant, and ought to be disclosed 
 by him, and that the complainant is unable to prove them by- 
 other testimony, and when the facts are denied, to assist a court 
 of law in the progress of a cause, it should be affirmatively 
 slated in the bill that they are wanted for such purpose. Brown 
 vs. Swann, 10 Peters' R., 502. 
 
 If this be substantially the true rule, of which there can be 
 no doubt, the bill is insufficient to sustain the injunction to the 
 full extent in which it was allowed. 
 
 The bill alledges various and complicated transactions, and 
 this allegation would be equally true, whether the discovery 
 from Welles was necessary, either in relation to original nego-
 
 Mechanics' 
 Bunk 
 
 204 CASES IN CHANCERY. 
 
 Firstcircuit. ciation with Sargeant, or in relation to the draft upon which a 
 ^-^^-^'^^ suit is pending. It is not stated that the discovery is necessa- 
 ^ "■"• ^ rv to aid the defence at law, or that they are unable to prove 
 
 Farmers and ■« j ••" "' ; 
 
 the subject matter of that defence by other testimony. 
 
 R. S., Sec. 91. 374, is positive and peremptory, that no 
 injunction shall be granted to restrain proceedings at law, 
 where a cause is at issue, without filing a bond in such sum as 
 the officer allowing the injunction, shall prescribe, &c. 
 
 The bill alledges merely, that the Farmers' and Mechanics' 
 bank have commenced, and threaten to prosecute a suit upon 
 a certain draft, mentioned in the bill, given by the complainant 
 to N. O. Sargeant, now deceased, without alledgingthe court 
 in which such suit is pending, or whether the suit is at issue 
 or not. 
 
 It is urged that, as the statute is imperative upon the officer 
 allowing the injunction, it is incumbent upon the complainant, 
 in his bill, to show the state of the pleadings, and the court in 
 which such suit is pending, in order to enable the officer, to 
 whom the bill may be presented for the allowance of the in- 
 junction, to judge of the propriety of lis allowance, and if al- 
 lowed, to prescribe the terms, in accordance with the provi- 
 sions of the statute. This ground, I deem to be well taken. 
 It has been repeatedly decided, that courts of chancery will 
 not sustain an injunction bill, to restrain a suit or proceeding 
 previously commenced in a court of a sister state, or in any of 
 the federal courts. 2 Paige, 404; 4 Cranch, 179. For aught 
 that appears, this suit may be pending in one of the federal 
 courts, or in the court of a sister state. It may be at issue, 
 or even in judgment, in one of those courts. As the statute 
 requires, peremptorily, certain things to be done where a cause 
 is at issue, it seems necessarily to follow, that the party should, 
 when he states that a suit is pending, show the condition of 
 that suit, in order to enable the officer allowing the writ, to 
 judge of, and to direct the necessary conditions. 
 
 To establish a contrary rule, would open ihe door for great 
 abuses of the process of the court. But whether this omission 
 may be technically termed an irregularity or not, when it is
 
 CASES IN CHANCERY. 205 
 
 brought to the luiowlcdge of the court, that the officer al- Firstcircuit. 
 lowiiiir the injunction lias been misled by such omission, 
 
 c? J .' ' Carroll 
 
 that the process of the court has been improperly abused, p.-irmcVs and 
 there can be no doubt of its duty to afford a prompt cor- Bj",^k"""^' 
 rection. The affidavit discloses the fact, that the injunc- 
 tion allowed in this cause, purports to restrain the proceed- 
 ings of a cause not only at issue, but pending in the court 
 of another state. So far, the affidavit undoubtedly may be 
 received. This being apparent, there can be no room for doubt 
 as to the duty of the court, so far to modify the injunction as 
 to divest it of this anomaly. 
 
 In the case of Mead vs. Merriif, 2 Paige, 404, the Chancel- 
 lor says: "I am not aware that any court of equity in the 
 Union has deliberately decided that it will exercise the power, 
 by process of injunction, of restraining proceedings which have 
 been previously commenced in courts of another state. Not 
 only comity but public policy forbids the exercise of such a 
 power. If this court should sustain an injunction bill to re- 
 strain proceedings previously commenced in a sister state, the 
 court of that state might retaliate upon the complainant, who 
 was defendant in the suit there. By this course of proceed- 
 ing, the courts of different states w^ould indirectly be brought 
 into collision with each other in regard to jurisdiction; and the 
 rights of suitors might be lost sight of in a useless struggle for 
 what might be considered the legitimate powers and rights of 
 courts." He further says that these principles " may now be 
 considered the settled law of this country. The prompt cor- 
 rection of this error is called for by a decent regard for the 
 reputation of the court, and of the judicial proceedings of the 
 state; and it is also due to the rights of the parties. The in- 
 junction must be dissolved. 
 
 Injunction dissolved.
 
 206 CASES IN CHANCERY 
 
 Emily Beaubien et. al,, minors vs. Simon Poupard, 
 
 administrator. 
 
 1340. Where the day appointed for an administrator's sale is rainy and ineiement, and but few per- 
 
 First Circuit, gons apjiear und bid, and the bids do not exceed half the actual value of the property, it is the 
 
 ^-^^^^y^^^ duty of the administrator to adjourn the sale. 
 
 Beaubien 
 
 vs. An administrator cannot liecome the purchaser at a sale made by him, as administrator ; and 
 
 Foupard. where an administrator procured his brother-in-law to becon:e the purchaser, and immedi- 
 
 ately afterwards toolv a conveyance of the premises so purchased, from liis brollier-Ln-law, the 
 sale v^aa set aside, the deeds ordered to be delivered up to be canceled and a re-sale ordered. 
 
 Dec. 19. rp^g |_jjj[ ajie^ggg^ ji^ substaiicc, that Lambert Beaubien, was, 
 in his lifetime, seized in fee simple, of a certain tract of land 
 situated in the county of Wayne, described in the bill of com- 
 plaint; that said Lambert died in the month of September, 
 1819, intestate, leaving Jean Bt. Beaubien, the father of the 
 complainant, and thirteen other children, his heirs at law; 
 that said Jean Bt. Beaubien, the father of the complainants, as 
 aforesaid, died in the month of December, 1828, intestate, 
 whereby they became seized and possessed of the undivided 
 one-fourteenth part of said tract of land; that on the fifth day 
 of October, 1829, Cecil Beaubien, the widow of said Jean Bt. 
 Beaubien and mother of the complainants, presented a peti- 
 tion to the judge of probate of Wayne county, praying that 
 administration on the estate of said Jean Bt. might be granted 
 to her; but before any action was had on said petition, the de- 
 fendant also presented an application to said judge jfor letters 
 of administration on the estate of said Jean Bt. Beaubien; that 
 April 23d, 1830, the said defendant, with the assent of said 
 Cecil, was duly appointed administrator on the estate of 
 said Jean Bt. Beaubien, and took upon himself that trust, 
 according to law; that an inventory of the estate was duly 
 filed in the office of said judge of probate, by which it ap- 
 peared that the real estate was appraised at $800, and the 
 personal estate at $81 92; that on or about the 6th day of 
 December, 1830, the said defendant presented to said judge 
 of probate a paper, representing, among other things, that
 
 CASES IN CHANCERY. 207 
 
 he believed the estate of said Jean Bt. was indebted in the F'«i<^''c«i«- 
 sum of four hundred dollars, and that the said estate was Ee»ui.ipn 
 insolvent, and prayed the appointment of commissioners to Poup'ard. 
 examine the claims of the several creditors of said estate, 
 which prayer was granted, and the commissioners appointed, 
 after executing the trust reposed in them, made their report; 
 by which it appeared that all the claims allowed against said 
 estate amounted only to the sum of $110 20; that on the 17th 
 day of October, 1831, the defendant, as administrator afore- 
 said, presented a further petition to said judge of probate, sta- 
 ting, among other things, that the personal estate of said Jean 
 Bt. was insufficient to pay the debts due by said Jean Bt., at 
 the time of his death, and the charges of administration, and 
 praying to be licensed and empowered to sell so much of the 
 real estate of which the said Jean Bt. died seized, as might 
 be sufficient to pay said debt and charges; that on the 7lh day 
 of November, 1831, the prayer of the said defendant, admi- 
 nistrator, as aforesaid, was granted, and license was granted 
 to sell certain lots, numbered 12, 140, 157, 142 and 113, or so 
 much thereof as might be necessary for the purposes afore- 
 said; said lots having been duly set off to the complainant by 
 the circuit court of said county, upon a partition of the said 
 real estate of which tiie said Lambert died seized; that on 
 the 20th day of October, 1832, the said defendant, as adminis- 
 trator, having first given the bond, taken the oath, &c., requi- 
 red by law, did sell at public auction the said lot numbered 12, 
 at which sale the same was struck off to one Louis Beaubien, 
 the brother-in-law of said defendant, for the sum of 8150. 
 
 The bill charges, that although the said lot numbered 12, 
 was at said sale, struck oft" to said Louis, yet the said pur- 
 chase by him was made pursuant to an understanding or ar- 
 rangement, entered into previous to said sale, between said 
 defendant and said Louis, and that said sale was to accrue to 
 the benefit of said defendant. 
 
 The bill avers, that on the 30th November, 1832, the said 
 defendant, in his capacity as administrator, aforesaid, did exe- 
 cute and deliver, in due form of law, to said Louis, a deed of
 
 208 CASES IN CHANCERY. 
 
 First Circuit, gjjjj Jq^ numbered 12, and that on the sanne day, the said Louis 
 
 Beaubien and his Wife, for the consideration of $150, did quit-claim to 
 
 Poupard. Said defendant said lot No. 12; and further, that DecennberS, 
 
 1832, the defendant did further cause both of said deeds to be 
 
 duly recorded at his own cost and charges. 
 
 The bill further charges, that the defendant further disre- 
 garded the rights and interests of the complainants, who were 
 infants, by not offering for sale some one or more of the other 
 lots he was authorized to make sale of, instead of said lot No. 
 12, the said lot being a water lot and not saleable, while the 
 others were eligibly situated and in demand, and would have 
 sold for a comparatively much higher price. 
 
 That said lot No. 12 would have sold for a much greater 
 sum, but for the fraudulent conduct of the defendant; in proof 
 whereof, the complainants aver, that the said defendant con- 
 cealed the time of sale fj-om the guardian of the complainants, 
 who had made arrangements to prevent a sacrifice of their in- 
 terests, until the day of sale, although the said defendant pro- 
 mised to give said guardian timely notice thereof. 
 
 That after said lot No. 12 was advertised for sale, the said 
 guardian applied to the defendant, and desired to be informed 
 in due season, of the day of sale, to which the defendant repli- 
 ed to said guardian, who was unlettered, and Unable to read or 
 write, that he could not state with precision the time of sale, 
 although he well knew he had appointed a day for that purpose. 
 That the guardian, on being advised by the defendant, that 
 the said sale was to take place forthwith, remonstrated with 
 the defendant for his neglect in not giving her timely notice, 
 &c., and urged the propriety of postponing the said sale; to 
 which the defendant replied, that said sale could not be post- 
 poned. 
 
 That there were but few bidders at said sale, and that the 
 weather was inclement, notwithstanding which, the said de- 
 fendant refused to postpone said sale, and that said lot sold for 
 about one-half its real value. 
 
 The bill further charges, that the information with regard to 
 the day of sale, was withheld from the guardian of the com-
 
 CASES IN CHANCERY. 209 
 
 plainants, by the defendant, in order that he might promote his F'^st circuit. 
 own interest; avers that the defendant owned a lot adjoining '""^^^^^i^ 
 said lot No. 12, which would be greatly enhanced by obtaining pou^pard. 
 said lot No. 12. 
 
 The bill further states, that the defendant, before said sale, 
 said that he would procure some person to bid in said lot for 
 him, as he could not legally or lawfully purchase, himself. 
 
 The answer admits that Lambert Beaubien was, in his life- 
 time, seized of the premises; that he died intestate, leaving 
 heirs, as stated in the bill; that defendant, Poupard, was ap- 
 pointed administrator; that an inventory of the estate was filed 
 in the office of the judge of probate; that the real estate was 
 appraised at $800, and the personal estate, at $81 92. That 
 the estate was represented insolvent, and commissioners were 
 appointed, as stated in the bill. The answer further admits 
 the petition of the defendant, as administrator, for license to 
 sell the real estate, and that license was granted to sell the 
 same by the judge of probate, and that lot No. 12, was sold 
 October 20, 1832, at public auction, by defendant, as adminis- 
 trator, and that the same was struck off to Louis Beaubien, 
 the brother-in-law to said defendant, for the sum of $150; 
 states that said Louis Beaubien was the highest bidder, and 
 that $150 dollars was the highest sum bidden therefor. 
 
 The answer further states, that among many other citizens 
 whom defendant solicited and urged to attend said sale, with a 
 view of making a beneficial sale for said estate, of said lot, he 
 spoke to said Louis Beaubien to attend and bid for the same, and 
 that defendant told the said Louis, if he bid on said lot, and it 
 was knocked off to him, this defendant would take it from him, 
 but defendant and the said Louis both distinctly understood, 
 that if it was knocked down to the said Louis, he was at full 
 and perfect liberty to keep the same, at the price bid there- 
 for; and that there was no agreement, or any public or pri- 
 vate understanding by or between the said Louis and this de- 
 fendant, as charged in said bill, that he, the said Louis, was 
 purchasing the same for defendant; but the said defendant 
 so spoke to the said Louis, to induce him to bid for the same, 
 Vol. L 27
 
 210 CASES IN CHANCERY. 
 
 Firstcircuit. ^^^^ ^\[\^ l^g sole view of making the lot sell for a fair value. 
 
 "^^^^^^j]]^ Denies that the deed from defendant, as administrator to Louis 
 poupard. Beaubien, of said lot No. 12, and the deed from said Louis 
 Beaubien and wife to defendant, were recorded on the same 
 day, and the record of both deeds paid for by defendant; de- 
 nies that defendant disregarded the rights and interests of the 
 complainants, by not offering some one or more of the other 
 lots, instead of said lot No. 12. The answer further states^ 
 that the defendant "does not now remember whether, on the 
 day of sale, the said guardian, or any other person, desired a 
 postponement of the sale;" denies that defendant ever told the 
 said guardian, that said sale could not be postponed; admits 
 defendant owned the adjoining lot, in the right of his wife; 
 states that defendant does not remember that he ever stated, 
 before the sale, that he would procure some person to bid in 
 said lot, as charged in the bill; denies all fraud, &c. 
 
 Whipple and Van Dyke, for complainants. 
 
 It will be perceived upon reading the bill, ihat the complain- 
 ants are minors, and claim the relief prayed for upon two dis- 
 tinct grounds: 
 
 1. That the defendant, through the intervention of a third 
 party, Louis Beaubien, purchased the lot in contest; and, 
 
 2. Admitting that he did not so purchase, yet, that the de- 
 fendant was guilty of such gross misconduct in conducting the 
 sale, as would warrant the interposition of a court of equity. 
 
 With respect to the first ground the law is indisputable. The 
 defendant was administrator on the estate of Jean Bt. Beau- 
 7J. c.,76. bien, and sustained the relation of an agent, not only with re- 
 spect to the creditors of the estate, but the heirs at law. Sus- 
 taining this relationship, the question first presented is, could 
 he legally become the purchaser of the lot in question? In 
 support of the negative of this proposition, the reference in 
 the margin is full and explicit, and renders it unnecessary to 
 multiply authorities, as it embodies all the leading decisions in 
 this country and in England, on the subject. 
 
 The law being clear, the question arises, whether, in fact,
 
 CASES IN CHANCERY. 211 
 
 the defendant did, through the agency of Louis Bcaubien, pur- Firitcircuit. 
 chase the lot dcsisrnatcd in the bill as No. 12. To answer this „ .. 
 
 o Ueaunien 
 
 question, reference must be had to the pleadings and deposi- poupiird. 
 tions in the cause. 
 
 Upon this point the defendant answers: ''That he spoke to 
 said Louis Bcaubien, to attend and hid for the same, and told 
 said Louis if he hid upon said lot, and it was knocked off to him, 
 he, {the defendant,) would take it from him; hut the defendant 
 and said Louis hoth distinctly icnderstood that if it teas knocked 
 down to the said Louis, he loas at full and peifect liberty to keep 
 the same at the price bid therefor ; that there was no agreement, 
 nor any public or private understanding, by or beticeen the said 
 Louis and the defendant, that the said Louis was purchasing the 
 same for the defendant, but the said defendard so spoke to the 
 said Louis to induce him to bid for the same, and with the sole 
 view of making the lot sell at a fair value." This portion of 
 the answer is drawn up with apparent skill, and would seem to 
 rebut the allegation in the bill to which it is responsive; but, 
 upon examination, it will be found to admit sufficient to bring 
 him within the rule of law above referred to. 
 
 1. The defendant admits that he requested Louis Beaubien 
 to ** attend and bid.'' 
 
 2. That he told the said Louis, that " if he bid on said lot, 
 and it was struck oft" to him, he, (the defendant,) would take 
 it from him."' 
 
 Here is a clear admission of the allegation in the bill, that, 
 by some agreement or understanding, the lot, although struck 
 off to said Louis, was, in fact, for the defendant; and the de- 
 fendant cannot escape from the effect of this admission, by 
 statinf' " that it was distinctly understood, that if it was knock- 
 ed down to him, the said Louis, he \vas at full and perfect liber- 
 ty to keep the same at the price bid therefor;" for, no legal 
 proposition is better settled than that which prohibits a party 
 from availing himself of his own wrong. Had Louis Beau- 
 bien refused to convey to the defendant, he certainly could not 
 have coerced a conveyance,' for he would have been met with 
 the proposition that the agreement was void, as being against
 
 212 CASES IN CHANCERY. 
 
 Firstcircuit. the poHcj of the law. It is, therefore, a correct legal inference 
 ^^■^'^^"^-^ drawn by the defendant, that the said Louis "iwas at full and 
 
 Beauljien •' ' 
 
 Poulard p^^'f^ct liberty to keep the lot." 
 
 But the defendant further states, that 'Hhere was no agree- 
 ment, nor public or private understanding between him and the 
 said Louis, that he, the said Louis, was purchasing for the de- 
 fendant." In making this declaration, the defendant seems to 
 have forgotten the admission previously made, " that if he {the 
 said Louis,) bid on the lot, and it was sti'uck off to him, he, [the 
 defendant,) would take it from him." This last admission is 
 sufficient for our purpose, showing as it does, most conclusive- 
 ly, that, while Louis Beaubien was entirely ignorant of the 
 object the defendant had in view, in getting him to attend the 
 sale and bid for the lot, the defendant's purpose was to pur- 
 chase the lot, and shield himself from the consequences in the 
 manner stated in the bill. It is not believed that Beaubien un- 
 derstood the defendant's object in urging him to bid, or he 
 would have shrunk from doing an illegal act, the effect of which 
 might work injuriously to the infant heirs of his deceased bro- 
 ther. 
 
 It may be contended that the defendant's denial of the alle- 
 gation in question, being full and explicit, it must be taken as 
 true, provided it is not rebutted by evidence. The general 
 rule, that the answer is to be received as true, is to be taken 
 with some qualifications. For instance, if the answer is con- 
 tradictory, or inconsistent, (as in this case;) or if it is evasive, 
 the court will not feel bound to enforce the rule, but glwe to 
 the answer such weight as, under the circumstances, it is en- 
 titled to. Apply these principles to this case: the defendant 
 denies, generally, that there was "an understanding or agree- 
 ment" between him and Beaubien respecting the purchase of 
 the lot. Now, this may be true, and would be conclusive, if 
 the answer did not further admit, thai Beaubien went to the 
 sale and bid at his special request, and with the express under- 
 standing that the defendant would take the lot from him. 
 
 It is very clear, even from the answer, that the defendant's 
 object was to purchase the lot, but in such manner as to avoid
 
 CASES IN CHANCERY. 213 
 
 the legal difficulty in his way; this difficulty he was aware of, Firstcircuit. 
 and the mode adopted by him to get rid of it, although well j;^^,^^^ 
 planned, cannot avail him in a court of equity, where the mo- poupa,a. 
 lives and intentions of a party are looked into and scanned, es- 
 pecially where the rights and interest of infant heirs arc in- 
 volved. 
 
 But the complainants are not driven to the necessity of re- 
 lying upon the answer to make out this case. The testimony 
 before the court, establishes, beyond all question, the motive 
 and intention of the defendant, in getting Beaubien to go to 
 the sale and bid for the lot. 
 
 Cecil Beaubien testifies "that the defendant told her, that if 
 said lot No 12, did not sell for too high a price, he, (the de- 
 fendant,) would purchase it himself, and that this conversation 
 took place about two weeks previous to the advertisement of 
 sale, as she believes." 
 
 Joseph Campau, jr., states, that during a conversation had 
 between the defendant and Edward Campau touching said lot 
 and the present suit, the " defendant remarked to said Campau, 
 that he had bought the lot, and considered it his." 
 
 Edward Campau testifies with respect to the conversation 
 referred to, and states that "the defendant remarked tiiat he 
 had bought the lot in question, as it was sold cheap." 
 
 Louis Beaubien testifies, " that when he bought the said lot, 
 he considered it as his own property; that the defendant told 
 him that if he did not wish to keep the lot, he would lake it 
 off his hands, the defendant paying him the amount for which 
 it was struck ofl* and the costs of drawing the deed;'" and, up- 
 on his cross examination, he further states, " that the defend- 
 ant came to him on the morning of the sale, whereupon the 
 defendant stated to him, that he had no money to purchase; to 
 which the defendant replied, that if he had no money to pur- 
 chase, he would lend him some, or take the lot off of his hands 
 if he did not want it;" and that "/ic would not have purchased 
 it, if the defendant had not offered to advance him the money, or 
 take it off his hands.'^
 
 214 CASES IN CHANCERY. 
 
 First circuii. This Gmbraces all the direct testimony relating to the pur- 
 
 ^"^'"'''^^''^ chase, and shows irresistibly that the lot was, in truth and in 
 
 ^ "'■ , fact, bousfht by the defendant. The remark made by the de- 
 
 fendant to Beaubien, that he would "lend him money or take 
 
 the lot off of his hands," was only a measure adopted by the 
 
 defendant the more effectually to conceal his design. 
 
 But there are collateral circumstances and circumstantial 
 proof, having a direct bearing on the question, and which es- 
 tablishes the fact with as much certainty as the positive testi- 
 mony of the witnesses. 
 
 1. Why did the defendant conceal the time of sale from the 
 guardian ol the complainants, who applied for information on 
 the subject t 
 
 2. Why did he conceal the day of sale from the guardian, 
 until the morning the lot was advertised for sale? 
 
 3. Why remark to the guardian when she suggested to him 
 the impropriety of selling, as the day was rainy, that he could 
 not postpone the sale? 
 
 4. When he found that " only one or two persons bid on the 
 lot at the time of sale, beside the purchasei'," why did he not 
 postpone it, especially as the day was tainy 1 
 
 5. Why offer a lot for sale which was not saleable, accord- 
 ing to the testimony of Mr. Desnoyers? 
 
 These are strong circumstances, and are all fully proved, as 
 will be seen by an examination of the testimony, and contra- 
 dict the answer in several important particulars,- which will, 
 according to well established principles, induce the court to 
 give but little weight to the other portions of the answer that 
 remain unsupported by other testimony. 
 
 The defendant admits that the lot was worth more to Jo- 
 seph Campau, senior, than any other person, because he owned 
 the one adjoining. For the same reason, it was worth more 
 to the defendant, who also owned one adjoining lot. It is then 
 manifest, that thete was and must have been a strong tempta- 
 tion, on the part of the defendant, to obtain the lot in question; 
 and this fact alone will weigh strongly, were the evidence nice- 
 ly balanced.
 
 CASES IN CHANCE.IY. '215 
 
 II. The frross iiiiscondiict of the defendant, in conductinn: ^''■'"*^''"^"''- 
 the sale, will warrant the interposition of this court. lieauiticn 
 
 1. It is averred in the bill, and the averment is sustained by Pouiiard. 
 several witnesses, that the day of sale was inclement and rainy, 
 which should have induced the defendant to post{)one it. 
 
 2. It is shown, further, that there were only one or two 
 bidders present at the sale, exclusive of Beaubien. 
 
 3. It is also shown, that the day of sale was concealed from 
 the mother and guardian of the complainants. 
 
 4. The defendant, upon a request made by the said guardian, 
 that the sale should be postponed, replied that " he could not 
 postpone the sale." 
 
 5. It is very manifest, that the defendant should have ofTer- 
 ed for sale one of the dry lots, which was saleable, rather than 
 a water lot, which was unsaleable. 
 
 These are some of the prominent facts which go to establish 
 the allegation of gross misconduct, and in the eye of a court of 
 equity, fraud. 
 
 It is the peculiar province of this court, to guard and pro- 
 tect the rights of infant heirs, and if, in the discharge of his 
 duty, as administrator, and in conducting the sale, the defend- 
 ant did not exercise that sagacity and prudence, which is usu- 
 ally exercised by persons transacting their own business, he 
 will be responsible. {See 2 /. C. R., 70.) In this case, the 
 court carried the investigation beyond the order of the probate 
 court, and examined into the conduct of the defendants. And 
 the simple fact, in the present case, that the debts due by es- 
 tate were nominal, and might have been paid in three months, 
 by leasing the real estate, is another strong circumstance in 
 support of the allegation, that the defendant sought to advance 
 his own interest, rather than protect the rights of those he 
 represented, and comes within the scope of chancellor Kent's 
 reasoning, in the authority cited. It will also be perceived, 
 by this authority, that the chancellor comments with much se- 
 verity, upon the conduct of the defendants, in conducting the 
 sale, by not giving notice, &c., and for not exercising proper 
 vigilance and care, in order to obtain the highest price for the
 
 216 CASES IN CHANCERY. 
 
 First Circuit, jandg tj^gy gojjj, ^he acts of the defendant in this case, so far 
 Beaubien ^^ the Sale is ccncemed, is obnoxious to the censure cast upon 
 Pou'^ard. the defendants in the case referred to, and are, in contempla- 
 tion of the law, fraudulent. 
 
 B. F. H. WiTHERELL for defendant. 
 
 Jean Bt. Beaubien, the father of the complainants, died in 
 December, 1828. intestate, leaving the complainants his heirs 
 at law. 
 
 . Simon Poupard, the defendant, became, at the request of the 
 family, administrator. 
 
 In settling the estate, it became necessary to sell real estate 
 to pay debts and incidental expenses. 
 
 Poupard obtained a license from the judge of probate, gave 
 bond according to law, advertised according to law, and sold 
 water lot No. 12, on the Lambert Beaubien farm, so called, at 
 auction, for $150, to Louis Beaubien. 
 
 The complainants alledge that the lot was struck off to Louis 
 Beaubien; that it was in fact for the defendant, Poupard; and 
 that he, being as administrator, a trustee for complainant, could 
 not purchase directly or indirectly. 
 
 The defendant alledges that he did not purchase at the sale 
 at auction, either directly or indirectly; that he made great 
 efforts to procure bidders to attend the auction, and personally 
 called on several who were interested in adjoining lands, and 
 on one Joseph Campau, whose peculiar interest it was to pur- 
 chase the lot in question, and who was fully able so to do. 
 
 That, among others that he solicited to attend and bid, was 
 the said Louis Beaubien, the uncle of the complainants; that, 
 to induce said Louis to attend and bid, for the purpose of raising 
 as large a sum as possible for the lot, said Poupard, said to said 
 Louis, that if he would attend and bid, ''if the lot should be 
 knocked off to said Louis, and that if he did not wish to keep 
 it, he, said Poupard, would take it of him; that said lot was 
 sold to said Louis, bona fide, for #150; that said Louis had a 
 perfect right to keep the lot, but subsequent to the sale, conclu- 
 ded to let said Poupard have it, and that the land, afterwards,
 
 CASES IN CHANCERY. 217 
 
 was conveyed to the sai'l Louis, and by hitn subsequently to ^'"^^''^'^""■ 
 said Poupard; that it was sold for all that it was worth, and ucaubien 
 that the whole transaction was in good faith. Poup'ard. 
 
 The Chancellor. — The several allegations in the bill, upon 
 which relief is sought, are sufficiently met by the answer, ex- 
 cept so far as they relate to the sale of the lot in question. 
 
 The proceedings before the court of j)robate, and notice of 
 the sale, &c., seem to have been regular and fair. It is al- 
 ledged in the bill, and is not denied in the answer, that the 
 administrator, before the sale, expressed a desire or intention 
 to purchase the lot. It also appears that he requested Louis 
 Beaubien to attend the sale; that Louis Beaubien told him that 
 he had no money, to which Poupard replied, he would lend 
 him the money, or would take the lot; that the day of sale was 
 rainy and inclement, and there were but one or two persons 
 who bid on the lot, besides Beaubien, who purchased it; and 
 that the lot was agreed to be conveyed to Beaubien, and by 
 him back to Poupard, on their return from the sale. The in- 
 ference, I think, is strong, that the sale was, in fact, to Beau- 
 bien, for the benefit of Poupard, although there does not appear 
 to have been an express agreement to that effect. Else why 
 the strong urgency that Beaubien, \vho confessedly had no 
 money to pay for the lot, should attend the sale. Poupard, it 
 seems, knew that Beaubien could not pay for the lot, and the 
 offer to lend him money or take the lot off his hands, still 
 leaving the option with Poupard to do either the one or the 
 other, and the known fact, that Beaubien was unable to buy 
 himself, in effect secured the lot to Poupard; and it was so 
 consummated immediately after the sale. The administrator, 
 I think, erred, acting in the capacity he did, in not adjourning the 
 sale, when the day was rainy and inclement, and there were but 
 one or two bidders beside Beaubien. It may have been, that the 
 desire of Poupard to secure the lot, had no influence upon this 
 decision. But if a sale of this character should be sustained, 
 it would open the door for frauds, and would certainly throw 
 great temptations before trustees acting in this capacity. I 
 am satisfied that Louis Beaubien had no intention of aiding 
 Vol. L 28
 
 218 CASES IN CHANCERY. 
 
 First Circuit. pQupard in purchasing the lot improperly; but he purchased 
 
 ^^J^2^^]^ under the promise that Poupard would take it off his hands. 
 
 Pou^pard. It makes no diffei-ence by what means an administrator secures 
 
 the benefit of a purchase, at a sale made by himself ; the rule 
 
 is imperative, that he cannot become a puixhaser at all. 12 
 
 Peters' Rep., 25, Hart vs. Ten Eijck; 2 Jo/ins. Ch. Rep., 62. 
 
 I see no reason to suppose, that Poupard intended, in fact, 
 to commit a fraud upon the rights of the heirs, but enough ap- 
 pears, to show that he intended to secure the lot under the 
 sale. To sustain this sale, would in effect break down the 
 salutary rules of law- upon this subject, and expose the rights 
 of minors to the adroit management of an interested trustee. 
 The sale must be set aside, and the deed to Beaubien, and 
 from him to Poupard, cancelled, and a re-sale ordered, accor- 
 ding to the prayer in the bill.
 
 CASES IN CHANCERY. 219 
 
 Bank of Michigan vs. John R. Williams. 
 
 A pica of a former suit pcndinj; in another rourt for the same action, must set forth the general 1940. 
 cliaracter and olijects of the former suit, aiiJ the relief prayed for. tiral Circuit. 
 
 A motion to open a default on the affidavit of the solicitor that the defendant had, as he lie- „ 
 
 ' Bank of 
 
 lieve.l, a good defence by way of setoff, to a part, nt least, of the amount claimed in the bill, Michi"an 
 
 was refused on the {rround thai no reason was shown why tlie affidavit was not made by the ,,^.?'?' 
 
 party defendant inslcad of the solicitor. 
 
 The plea to the bill filed in this case, states that another suit octoherc. 
 is pending in the supreme court for the same cause, and for 
 the like relief prayed by the bill filed in this court. 
 
 Joy and Porter, for complainant. 
 
 The plea filed in this suit, is in itself defective, radically. 
 It does not meet any portion of the bill filed in the supreme 
 court which can make it appear to this court that both bills 
 were for the same identical matter, wliich ought to have 
 been done. So much of the first bill should have been set 
 up in the plea as would make it appear that the same mat- 
 ter was involved in both. (See Story's equity pleadings, 570; 
 Beame's pleas in equity, 140.) In pleas of this sort, says 
 Story, there are several matters essential to their validity. 
 The pleas should set forth with certainty, the commencement, 
 the general nature, charade?^, objects and relief prayed for, in 
 the former suit. 
 
 In a plea of former decree, &c., so much of the bill and an- 
 swer must be set forth as will show that the same point was 
 then in issue. Mitford, 258; 14 John. Rep., 501. The plea 
 must not set up the facts historically, hut must set out the sub- 
 ject matter of the suit pending, with sufficient averments. 3 At- 
 kins, 589; 2 AtMns, G03. The excuse for the informality in 
 the plea was, that the defendant had not copies of the plead- 
 ings with him in England, as the original suit was in Jamaica. 
 The chancellor says this does not mend the matter; he ought 
 to have applied for time to plead and answer. The court can- 
 not allow a plea of this kind, defective in that manner.
 
 220 CASES IN CHANCERY. 
 
 Firstcircuit. The above authorities are conclusive as to the validity of 
 
 '"'^"'•'"^^ this plea, and it cannot be allowed. Should the court, how- 
 Bank of i ' , I • 1 II 
 
 MiciMgan g^.gj,^ tijjj^]^ ditfcrently, and if it shali think this plea well 
 Williams. p]gj^(jg(j^ it would only put us to an election which suit we 
 would prosecute, even supposing both were now pending; or 
 perhaps, order the first suit fo be dismissed with costs, which 
 was actually done before this suit was commenced. (See 
 Cooper's equity pleadings, 275; Story s equity pleadings, 570, 
 572; Beaines, 151; Mit. PL, 321. 
 
 H. T. Backus, for defendant. 
 
 The Chancellor. The plea in this case, al ledges gener- 
 ally, that another suit is pending in the supreme court for the 
 same cause and for the like I'elief. This is insufficient. The 
 plea should set forth the general character and objects of the 
 former suit, and the relief prayed. Story's Eq. PL, 570; 3 
 »Stk., 590. This is not done here, and the plea must be over- 
 ruled as insufficient. 
 
 An order, pro confesso, was entered October 27, and H. T. 
 Backus, solicitor for complainant, filed an affidavit, November 
 5, and moved to set aside the order, pro confesso. 
 
 He states in his affidavit, that in the order adjudging the 
 plea to be insufficient, defendant was allowed, with leave, to 
 file his answer; that he supposed that he had forty days within 
 which to file his answer, and so advised the defendant; that "as 
 he believes, the said defendant has to said bill of complaint, a 
 good defence, to a part at least, of the amount claimed therein 
 by way of offset," and that he had been unable to prepare 
 the answer, &c. 
 
 The Chancellor denied the motion on the ground that the 
 affidavit was made by the solicitor, and no reason was shown 
 why it was not made by the party defendant himself. (1.) 
 
 (IJ The affidavit of the solicitor showing a meritorious defence, and the nature thereof, is 
 not sufficient, unless he is himself acquainted with the facts ; and even then, a sufficient ex- 
 «UBe must be shown for not producing the affidavit or sworn answer of the defendant. Hunt 
 Ts. fTallie, 6 Paige, 372.
 
 CASES IN CHANCERY. 221 
 
 George C. Bates vs. John D. Garrison. 
 
 This court unquestionably has the power to direct the alteration or correction of a decree after 1840. 
 
 it has been entered, either upon motion or petition, where there is evidently a mistake or First Circuit, 
 clerical error. V^^^v^^fc,/ 
 
 Bates 
 
 This was a motion to correct the record, by amending the car'i^ison. 
 decree entered at the term previous. 
 
 The motion was ioundcd upon an affidavit which stated that October o. 
 the suit in which the decree was entered, was for the foreclosure 
 of a mortgage; that the mortgage was given for the purchase 
 money, and that that fact was stated in the bill; that the decree 
 was by mistake entered for a sale of the mortgaged premises, 
 in default of payment, &c., in two years and three months from 
 the time of filing the bill, instead of o?ie year and three months. 
 
 A. D. Eraser in support of motion. 
 
 Cited Seatons Forms, 275; 1 Hoff., Ch. Pr., 559. 
 
 The Chancellor. This court unquestionably has the pow- 
 er to direct the alteration or correction of a decree after it has 
 been entered either upon motion or petition, where there is 
 evidently a mistake or clerical error. In this case there was 
 evidently a mistake or error in the decree for the sale of the 
 mortgaged premises in two years and three months, when the 
 party was entitled to take his decree for a sale in one year and 
 three months from the time of filing the bill. 
 
 The register is, thei-efore, directed to make the proper cor- 
 rection or alteration. 
 
 And the alteration having been made by the register, the 
 chancellor put his initials to the same.
 
 222 CASES IN CHANCERY. 
 
 Mason and Pritchette vs. the Detroit Citv Bank 
 
 and others. 
 
 1840. Where lenve is given to amend an answer, a new answer with the amendments added, mttst be 
 
 First Circuit. ^j^jg ^5]^^ j^j,j copy served, or the original answer withdrawn by leave of the covirt, and 
 ""^^"^"^^ the amendments added, or the amendments must refer to tlie portions of the answer on file, 
 
 PrU*chetle intended to be amended, and specifying tlieir nature and application. 
 Detroit City Where amendments were in the form of affidavits, without referring to the answer, it was held 
 
 Bank. to be irregular. 
 
 December 1. This was a motion to dissolve an injunction. 
 
 The defendants, at a former term, had obtained leave to 
 amend their answer. The papers on file, claimed by the de- 
 fendants to be amendments, were drawn in the form of affida- 
 vits, and do not purport, either in the body or indorsement of 
 them, to be amendments to the answer on file. 
 
 The complainants object to hearing the motion to dissolve 
 the injunction, on the ground that no amendment to the ans- 
 wer has been filed or served. 
 
 T. RoMEYN, for complainants. 
 
 The defendants, Howard and the bank, had leave to amend 
 their answer, by having the answer of the bank sworn to, and 
 its seal verified. 
 
 Without adverting to the substance of the affidavits filed as 
 amendments to the answer of the bank, the complainants in- 
 sist that these amendments are not legally and formally before 
 the court, and that they have not been duly served upon the 
 complainants. 
 
 The amendments do not refer to th? pleadings onjile. 
 
 They should have been added to, or incorporated with them 
 in some way or other. 
 
 A new answer should have been drawn, and the amend- 
 ments made a part of it; and a copy of the whole should have 
 been served on the complainants. 
 
 The first answer was a nullity, for all purposes of a motion 
 to dissolve the injunction. This is admitted; of course, there
 
 CASES IN CHANCERY. 223 
 
 was no necessity for excepting to it, to prevent sucli a motion. Firsicircuit. 
 When it was perfected, by beino; properly authenticated, then „ 
 
 » ' J O t 1 .' ' Mason and 
 
 the right to except became available. But after this no copy ^'^'^j"""" 
 
 I Dclroii City 
 
 was served. uank. 
 
 The affidavits of Harris and Brown were served, but with 
 no notice that they were intended as amendments to the ans- 
 wer; consequently, ihe complainants have not had an oppor- 
 tunity of excepting to the amended answer. 
 
 Even if the first position of the complainants be incorrect, 
 still it is evident that they have a right in some way or other, 
 to their exceptions, and that this is lost if the motion to dis- 
 solve is now heard. 
 
 If the court should not deem it necessary, that the defen- 
 dant should prepare a new answer, still it is beyond question, 
 that the amendments should 7-efer to ihe answer on file. See 1 
 Hoff?n. Pr. 240, 290, 292. 
 
 The amendments should have been made in one of three 
 ways, viz: 
 
 1st. A new answer should have been drawn; the amend- 
 ments added, and the whole served and filed; or 
 
 2nd. The old answer should have been taken from the files, 
 by leave of the court; the amendments added, and properly 
 served on the complainants; or 
 
 Sd. The amendments should have been drawn, referring to 
 the answer on file, and a copy should have been served, speci- 
 fying their nature and application. 
 
 The papers now produced, are mere general affidavits. They 
 do not "purport to he amendments. This practice is irregular 
 and mischievous. They do not purport to be amendments to 
 an answer. They do not refer to the answer as on file, and if 
 false, no perjury can be assigned on them. 
 
 J. M. Howard, for defendants. 
 
 The Chancellor. The first question presented, is, whe- 
 ther there has been such an amendment made to the answer, 
 as would compel the complainants to regard the answer as 
 filed, and to except, or reply to it.
 
 224 CASES IN CHANCERY. 
 
 Firstcircuit. The defendants, Howard and the Detroit city bank, had 
 T^""''^^^ leave to amend their answer. The papers purporting to be 
 
 Mason and ' ' ' ' 
 
 priidaette ^^ amendment, are in the form of aifidavits, and are so in- 
 
 Detroit City j j 
 
 Bank. dorse d. 
 
 The amendments should have been added to, or incorpora- 
 ted with the answer, in some way. 
 
 A new answer should have been made, the amendments 
 added, served and filed; or 
 
 The original answer should have been withdrawn, by leave 
 of the court, and the amendments added and served on the 
 complainants; or 
 
 The amendments should have been drawn, referring to the 
 portions of the answer on file, intended to be amended^ and 
 specifying their nature and application. 
 
 The papers filed, are merely general affidavits, and do not 
 purport to be amendments. 
 
 The motion is therefore premature, and cannot now be 
 heard.
 
 CASES IN CHANCERY. 225 
 
 Charles H. Carroll and others vs. Robert Vax i?4t». 
 
 , First Circuit. 
 
 Kejvsellaer and others. 
 
 Carroll 
 
 Van Ren 
 there is no security for iis payment taken. scllaer. 
 
 The vendor of real estate has an eciuitahli: lien upon the same for the purchase money, where ,, ''*■ 
 
 \ an Ren- 
 
 The bill in this case was filed December 9, 1839, and stated n^-^^ber i. 
 that November 8, 1836, complainants were seized and posses- 
 sed in their own right in fee simple, of certain lands and pre- 
 mises situated in the county of Lenawee, in the state of Michi- 
 gan; that they sold the same to Peter Stuyvesant, of the city 
 of New York, for the sum of $12,284 CO, and executed and de- 
 livered a deed therefor in due form of law; that $5,174 54 was 
 paid on the execution and delivery of the deed, and at the same 
 time Stuyvesant delivered to complainant Charles H. Carroll a 
 bond, executed by John Catlin, bearing dato September 2, 1835, 
 for the sum of $7,197 10, payable September 22, 1838, bear- 
 ing interest at six percent, payable semi-annually, which bond 
 was assigned and guarantied by Stuyvesant, with the under- 
 standing and agreement, that if the money secured by the bond 
 should be paid to Charles H. Carroll, the same should be appli- 
 ed in liquidation of the balance of said purchase money; that 
 July 30, 1839, Stuyvesant conveyed the lands and premises to 
 Robert Van Rensellaer. The bill charges Van Rensellaer 
 with full notice of all the facts; and also charges the conveyance 
 from Stuyvesant to Van Rensellaer to be fraudulent, and that 
 Stuyvesant and Catlin are insolvent and that there yet remains 
 due of the purchase money, about the sum of $8,222. 
 
 An answer was put in by Van Rensellaer, which* was sub- 
 sequently withdrawn and the bill taken as confessed. 
 
 The complainants asked a decree that the amount of the 
 purchase money remaining due from Stuyvesant to comjilain- 
 ants shall be a lien on the premises, and that defendants re- 
 deem the premises by the payment of the sum remaining due 
 within a certain lime, or in default thereof, that all and singu- 
 lar the premises be sold, &c. 
 
 Vol. I. 29
 
 226 CASES IN CHANCERY. 
 
 FirstCircuit. A. D. Frazer, foi' complainunts. 
 
 ca^rroii rpj-jg propositloii that the vendor of real property who has 
 
 ^Inl^r"' not taken separate security for the purchase money, has a lien 
 for it on the land as against the vendee and his heirs, is too 
 weW settled in the several states of this, Union to admit of dis- 
 cussion, subject indeed to be defeated by alienation to a bona 
 fide purchaser without notice. Brown vs. Gilman, 4 Wheat 
 255, and notes. Baily vs. Grcenlcaf. 7 Wheal,, 46. This doe- 
 trine is fully examined by Lord Elden in the case of JMcKrctte 
 vsi Syrnmons, 15 Ves., 29. And ihc result of his investiga- 
 tion is , 
 
 1st. That generally speakipg there is a lien. 
 2d. That in those general cases in which there would be a 
 lien as between vendor and vendee, the vendor will have the 
 lien against a third person who had notice that the money was 
 not paid. He adds, these two points seem to be clearly set- 
 tled. Chancellor Kent also, in Garson vs. Green, 1 J. C. R., 
 303, recognizes this doctrine. Reference is also made to the 
 following cases ; Hughes vs. Kearny, 1 Sch. &f Lef., 132 ; 
 jyain vs. Proivse, G Ves., 752; Brown vs. Gibnan, 1 JMason, C. 
 
 a R. 191. 
 
 The Chan"celi.or. The vendor of real estate has unques- 
 tionably an equitable lien upon the same for the purchase mo- 
 ney, where there is no security for its payment taken. The 
 complainants arc entitled to take their decree in the form sug- 
 gested.
 
 CASES IN CHANCERY. 227 
 
 James B. Clark and another vs. Phineas Davis. 
 
 A creditor's bill must contain tlie averments required by the ICOtli rule, aud ihosc averments 16-10. 
 
 must be sworn to, in llifi jurat. ' * ""c i . 
 
 A bill may be filed as well to reach mere equitable interests, as in aid of an e.recution at law, cir.rk 
 
 and sucli a bill is not niultit'arious. rs. 
 
 Davis. 
 Tbc right to tile a creditor's bill liavini; once attached by the return of the execution nnsa'.isfied, 
 
 the parly is not prevented from commencing proceedings in chancery, by the issuing of a new 
 
 execution. 
 A general demurrer, for want of equity, cannot be sustained, unless the court is satisfied that 
 
 no discovery or proof properly called for by, or founded on, the allegations in the bill, can 
 
 make the subject matter of the suit a proper case for equitable cognizance. 
 Wlicre a new cause of demurrer is assigned, ore I onus, the cause must be co-eitensive with 
 
 the demurrer. 
 
 M.- , ]• 1 • • ,• . December 1. 
 
 otion to dissolve an injunction. 
 
 The bill filed in this case, is framed with a double aspect. It 
 
 sets up the return of an execution unsatisfied, and the issuing 
 
 of another execution. It seeks to reach the equitable interests 
 
 of the defendant, and also to aid the second execution. The 
 
 jurat is special, and as follows: 
 
 " State of jyiicLigan, Couniij of Wayne, ss. 
 
 "Ezra C. Seaman, soHcitor for the complainants, being duly 
 sworn, says, that he drew the draft of the foregoing bill of com- 
 plaint, and knows the contents thereof; that the complainants 
 arc not citizens of the state of Michigan, but of ihe'^^state of 
 New York, as stated in the bill, as this deponent verily be- 
 lieves; that this deponent has examined the records, papers, 
 and proceedings in the suit stated in the bill of the complain- 
 ants, against the defendant, Phineas Davis, in the otlicc of the 
 clerk of the circuit court for said county of Wayne, and verily 
 believes that a judgment was obtained in said suit, and that an 
 execution was issued thereon and returned unsatisfied, as sta- 
 ted in said bill. And this deponent further says, that he, as 
 attorney for the plaintiff's, procured a new execution on said 
 judgment to be issued and delivered to the sheriff', as stated in 
 the bill, on the 28th day of July instant; and that this bill is
 
 228 CASES IN CHANCERY. 
 
 First Circuit, not exhibited by collusion with said Phineas Davis, or for the 
 ^"^y^^ purpose of protecting the property and effects of said Davis, 
 
 vs. 
 Davis. 
 
 or any part thereof, against the claims of other creditors, but 
 for the sole purpose of compelling payment and satisfaction of 
 the money due on the aforesaid judgment, the whole amount 
 of which deponent believes to be unpaid, and the judgment in 
 full force." Sworn, &c. 
 
 T. RoMEYN, in support of the motion. 
 
 The jurat is defective. 
 
 1. No sufficient cause is shown for its not being sworn to, by 
 the complainants. (See Rule 13.) 
 
 2. The substance of the jurat is not according to the rule of 
 the court. Rule 14. 
 
 3. The averments required by the 109th rule, are not sworn 
 to, at all. These averments are material, and, without them, 
 the bill cannot be sustained. McElwain vs. Willis, 3 Paige, 
 505. 
 
 E. C. Seaman, for complainants. 
 
 The affidavit does contain and establish, by the oath of the 
 solicitor in the first place, an excuse why it was not made by 
 one of the plaintiffs; and, secondly, it establishes all the mate- 
 rial allegations of the bill, required by the revised statutes, to 
 give the court jurisdiction, (see R. S., 365, sec. 25-26,) and 
 substantially complies with the rules of court. 
 
 It is averred in the liill, that the plaintiffs aj-e informed and 
 believe that the defendant has equitable interests, choses in ac- 
 tion, tiotes, accounts, judgments, &c., amounting to over one 
 hundred dollars, &c., and praying a discovery. 
 
 This is, in effect, dut a formal averment, calling for discove- 
 ry. The affidavit shows that the plaintiffs are citizens of New 
 York, and most likely ihey have no information whatever, as 
 to the equitable effects and choses in action, of Davis. At all 
 events, their solicitor here does not know, and cannot know, 
 what information the plaintiffs have on the subject, nor what 
 their belief is, on the subject; and, therefore, could not swear
 
 CASES IN CHANCERY. 229 
 
 that the plaintiTs were informed and believed the matters sta- First circuit. 
 ted in the bill. The solicitor might swear that he had been """"^^j^^^^^ 
 informed and believed, himself, that Davis has notes, &c., but ^u^jg. 
 he could not swear that the plaintiffs had been informed and 
 believed. The form of aflidavit in the rules docs not, there- 
 fore, apply to cases of bills, where an agent or solicitor swears 
 to the subject matter. 
 
 Rule 14 does not apply to cases of bills, &c., sworn to by 
 an agent, for he cannot swear to what the plaintiff ie/ieres, and 
 seldom can swear to what the plaintiff has been informed. 
 The statute and rule 110, has been complied with, by swear- 
 ing to all the material parts of the bill, and all the chancellor 
 deemed necessary when the injunction was granted. 
 
 The rules of court, requiring bills to be sworn to, apply to 
 only so much of the bill as seeks to reach choses in action, &c,, 
 on the ground of execution returned unsatisfied. The injunc- 
 tion to restrain the part}' from disposing of real and personal 
 property, which might be levied on under execution, was pro- 
 perly granted, according t") the English rules, on a separate 
 affidavit, merely setting forth the recovery of judgment and 
 suing out execution. 
 
 The Chancellor. The jurat is insufficient. It is special, 
 and none of the averments required by the lOOlh rule, are 
 sworn to at all. These averments are material; without them 
 the injunction cannot be sustained. {See McElivain vs. Wil- 
 lis, 3 Paige R., 505.) The injunction must be dissolved. 
 
 Injunction dissolved. 
 
 The complainant having obtained leave to file a new affida- 
 vit, the following affidavit was filed as an amendment. 
 
 Wayne County, ss. 
 
 Ezra C. Seaman being duly sworn, deposes and says; that 
 the complainants in this cause, are not citizens or residents of 
 the state of Michigan: that they were both absent from the 
 state of Michigan when the bill of complaint was filed in this
 
 230 CASES IN CHANCERY. 
 
 Firstcircuit. causG, and are still absent from this state, as deponent verily 
 ^^^^^^^y^ believes; that this deponent is the attorney and agent of said 
 Davis complainants for the purpose of collecting the judgment set 
 forth in the bill of complaint in this case; that this deponent 
 has information in relation to the recovery of the judgment 
 set forth in the said bill, and issuing of the several executions 
 thereon, and the return of such executions; and from such in- 
 formation, deponent verily believes ail the matters set forth in 
 said bill, in relation to the recovery of said judgment, issuing 
 the several executions thereon, and the return of such execu- 
 tions, to be true, as the^rein stated, and that the whole amount 
 of said judgment is due and unpaid. Deponent has also infor- 
 mation in relation to the property, effects, choses in action 
 and equitable interests and rights of said Davis, and fi-om such 
 information, deponent verily believes that said Davis had at 
 the time of filini,' the bill in this cause, and the commencemer.t 
 of this suit, either in possession or held in trust for him, (not 
 including such trusts as have been created by and due person 
 or persons other than said Davis himself,) equitable interests, 
 things in action or other property of the value of upwards of 
 one hundred dollars, exclusive of all prior just claims than as 
 is set forth in said bdl. Deponent further says, that no answer 
 has bee put in in this cause, and further saith not." 
 Subscribed, sworn, &c. 
 
 The defendant then demurred generally, and insisted that 
 the bill was not sustainable either as a creditor's bill or as a bill 
 in aid of the execution. 
 
 The cause was heard upon the demurrer. 
 
 T. RoMEvx, in support of the demurrer. 
 
 As a creditor's bill it is insiifficienlly verified. 
 
 Such bills must be verified by oatli. Rale 110. 
 
 The present bill is not verified by oath according to the 
 rules. 
 
 First. The jurat should be general, extending to the ivhole 
 bill, and according to the form prescribed by the 14th rule.
 
 CASES IN CHANCERY. 231 
 
 Second. E\'en if the jiuat miiy be speeiul, and extend to but nrsicircuii 
 a part of the bill, the present iurat does not cover the material ""^^^^^^ 
 statements in the bill. ,/'».• 
 
 Davis. 
 
 The last affidavit must be considered as superceding the for- 
 mer. The rule to amend was for " lea\'e to file a Jieiv affida- 
 vit," not a supi)lemcntal affidavit. The new aflidavit does not 
 alledge that the bill was not filed by collusion, Sf-c, in the man- 
 ner prescribed by the lOOlh rule. These allegations are ma- 
 terial, and the want of them renders the bill demurrable. Mc- 
 Elwain vs. Willis, 3 Paige, 505. 
 
 Again. If both aflidavits are to be considered in force and 
 subsisting, still neither of them covers the averments in the 
 8th folio, that the defendant has equitable interests, &c., pro- 
 perty held in trust for him, &c. This is a part of the state- 
 ment of the bill, and must be sworn to. Rule 110. 
 
 The bill is not sustainable as a creditors' bill, because it 
 shows an execution outstanding, not returned, and not return- 
 able at the time when it was filed, and to the levy of which, pro- 
 perty sufficient to satisfy the debt, was subject. {See 3 Paige, 
 3U.) 
 
 The bill is not sustainable as a bill in aid of an execution on 
 account of its vagueness and uncertainty. 
 
 It does not state that the defendant was seized or possessed 
 of any property, but merely states the belief of the com- 
 plainants. Mountfnrd vs. Taylor, G Vesey, 792. 
 
 There is no description of the property, nor of the incum- 
 brances on it. The whole bill is vague, uncertain and infor- 
 mal, (^e McElwain vs. Willis, 9 Wendell, 561, 5G7-8-9.) 
 
 The Gibralter stock is subject to an execution at law, [Rev. 
 Stat,, 456, sec. 37,) but the complainant has not followed the 
 directions of the statute as to the levy, {R. S., 456, sec. 38,) and, 
 therefore, is not entitled to aid in this court. 9 Wend., fi60. 
 
 The bill is multifarious, and therefore, demurrable. J]fi/ford 
 Ch. PL, 118, and note. The demurrer goes to the whole bill. 
 Boyd vs. Hoyt, 5 Paige, 79. 
 
 Even if the general demurrer be decided to be inapplicable, 
 the objections now taken are good causes of -demurrer, ore 
 tenus. Ston/s Eq. PL, 365.
 
 232 CASES IN CHANCERY. 
 
 Firstcireuit £ (^ Seaman for complainanls. 
 
 The want or defect of averments required by the 189th rule 
 of court in New York, which is our 109lh rule, has been held 
 a defect of form onl\% and may be supplied by amendment. 
 JIcElwain vs. Willis, 3 Paige, 500. 507. 
 
 The defect in this case, if it was a defect at all, was in the 
 affidavit only, and not in the bill, and according to the case of 
 McEhvain cs. Willis, was a defect of form only, at most, and 
 has been cured by the amendment or new affidavit filed, call 
 it by what name you choose. 
 
 Such a defect cannot be taken advantage of, on general de- 
 murrer, but must be taken advantage of, either on motion, or 
 on special demurrer. A general demurrer is good only when 
 it appears on the face of the bill, that the complainant has no 
 equity. Story's Eq. PL, bbl, sec. Abb. Demurrers for all 
 causes except a want of equity, must be special. ^Mitford's PI., 
 213, 214; Story s E(j. PL. 357, sec. Abb, Abl. 
 
 The amendments to the bill, being mere matters of form, 
 and not of substance, are considered as forming part of the ori- 
 ginal bill, and refer to the time of filing the bill. H'lrd et. al. 
 vs. Everett, 1 Paige, 124; Mitford's PI, 55, note, 330; Knight 
 vs. JIutthevcs, 1 .Muddock's Rep., 307; Story's Eq. PL, 689; 
 Cooper's Eq.. 340. 
 
 The original affidavit to the bill, (which defendant's counsel 
 claims is defective, and not cured evea by the amendments 
 and new affidavit,) being required by the 110th rule of this 
 court, either is, or is not, a necessary part of the bill itself. If 
 it is not a necessary part of the bill itself, then it is a mere pre- 
 liminary matter, and the demurrer being to the bill only, and 
 not t'j this preliminary affidavit, cannot reach it, even if it is 
 defective or totally wanting. If it is a necessary part of the 
 bill itself, then the amended affidavit cures the defect, by coming 
 directly within the terms of the general order to amend, and 
 is good without the special clause of which the defendant's 
 counsel complains. 
 
 If the affidavit to the bill is not a necessary part of the bill 
 itself, then the question arises, is it necessary at all, unless for
 
 Clark 
 
 vt. 
 Duvis. 
 
 CASES IN CHANCERY. 233 
 
 the purpose of obtaining an injunction or receiver before an- Pirstcircuu. 
 swer. Tiiat is the only ol)ject of it; the proceedings would 
 be good witliuut any atlidavit at all. But if this bo not the 
 true construction, the worst construction that can bo put upon 
 it is, that it is a m(?rc irregularity of practice. If so, the only 
 remedy the defendant could have, would be to move to dismiss 
 the bill, and this should have been done before appearing in the 
 cause, or at tlic first opportunity after being informed of the 
 irrefTularitv. 
 
 By appearing and putting in a general demurrer, and allow- 
 ing more than six months, and a term of the court to elapse 
 without objection, it is now too late. The party has waived 
 his right to raise any such objection. It has been expressly 
 decided by Chancellor Kent, in two cases, that irregularities 
 of practice arc waived, if the objection is not made in a proper 
 manner at the first opportunity. Skinjier vs. Daijlon, 5 Jo/in. 
 CIi. R('j)., 102; 2 /. C. R., 210. Your honor recently made 
 a similar decision in a divorce case, where Mr. llomeyn and 
 INIr. Harrington were counsel. 
 
 The demurrer is general, and if too broad, must be over- 
 ruled. If a demurrer is bad in i)art, it must be wholly overruled, 
 as it covers too much. Janes vs. Frosf, 1 Jacobs, 407; cl/<7- 
 forcTs Pi, 214. It is here attempted to combine together seve- 
 ral imaginary causes of special demurrer, in order to make one 
 good cause of general demurrer — a strange mode of argument. 
 
 A bill may be filed as well in aid of an execution at law, to 
 discover property that may be subjected to execution, as to 
 reach more equitable intcicsts and choses in action. Cuijler 
 vs. jyioreland, G Paige, 274; Leroy vs. Rogers, 3 Paige, 230. 
 
 A bill may be filed for the sola purpose of aiding excjcution 
 at law, that is, for the discovery of property, that it may be 
 levied on by the execution; in such case the execution must 
 be out, and in the sheriff's hands, ready to be levied on the 
 properly, when the discovery is made. Leroy vs. Rogers, 3 
 Paige, 234 to 237; Jlnget \'s. Draper, 1 Vernon, 399, 398; Siniih 
 vs. Lewis, Mountford' s Taylor, Ves.,jun., 788. 
 
 Vol. 1. 30
 
 CASES IN CHANCERY. 
 
 And on a general bill, without any special allegations, de- 
 fendant will be compelled to discover all his property, including 
 lands as well as personal estate, lying out of the jurisdiction of 
 the court. 3 Paige Clu Rep., 23.5. 
 
 Taking out a new execution, will not prevent the plaint.fi 
 from filiiTg a creditor's bill, to reach equitable interests, as long 
 as the judgment is not paid, and property sufficient to satisfy 
 it, has not been levied on. Cuyler vs. Mordand, 6 Paige, 214.. 
 
 Bringing suit on judgment, after return of an execution un- 
 satisfied, and obtaining a new judgment, will not prevent a 
 creditor from filing a creditor's bill on the original judgment, 
 as the original judgment is not thereby extinguished. Bates vs. 
 
 Lyons, 7 Paige, 86. 
 
 After judgment and an execution returned unsatisfied, if the 
 judgment is assigned, the assignee may file a creditor's bill in 
 his own name, and without taking out a new execution. Grea- 
 son vs. Gagr., 7 Paige, 121 to 124. 
 
 The demurrer must be overruled, and if so, a receiver will 
 be appointed of course; {see 2 Paige, 343, 346; 7 Paige, 58,) 
 where Chancellor Walworth says complainant may move for 
 an injunction or receiver. 
 
 If defendant is allowed to answer, it should be on the pay- 
 ment of costs. 7 Paige, 86, 124. 
 
 In all cases, on overruling a demurrer, leave to answer should 
 be given only on the condition of paying costs and answering 
 in a short period; such is the invariable rule at law. (See also, 
 1 Hoffman Pr., 215 
 
 The Chancellor. The affidavit filed under the leave of 
 the court, must be considered as cumulative, and does not su- 
 percede the first. They both are annexed to the bill, and stand 
 of record. Treating the two affidavits as of force and subsist- 
 ing, all the allegations of the bill, which are required by the 
 rules and practice of the court,'in order to entitle the party to 
 file and prosecute a creditor's bill in this court, are sworn to. 
 This is sufficient upon a general demurrer. The existence of 
 the judgment, the issuing and return of the execution unsatis- 
 fied, and the allegation that the defendant has equitable inte-
 
 CASES IN CHANCERY. 235 
 
 rests to the value of one hundred dollars and more, are suffi- p'"icirr„it. 
 ciently shown, and arc sworn to. The bill is not multifarious. dark 
 A bill may be filed, as well to reach mere equitable interests, as D^'is. 
 in aid of an execution at law. Cuyhr vs. Moreldnd, 6 Paige, 
 274. The risht to file a creditor's bill havinfr once attached, 
 by the return of the execution unsatisfied, the party is not pre- 
 vented from commencing proceedings in chancery, by the issu- 
 ing of a new execution. Paige, 274. It is not now necessary 
 to decide, whether the allegations in the bill are sufficiently 
 specific, to entitle the complainant to the relief he seeks in aid 
 of his execution. The bill, as a creditor's bill merely, is suffi- 
 cient upon this question. A general demurrer for want of 
 equity, cannot be sustained, unless the court is satisfied that no 
 discovery or proof properly called for by, or founded on the 
 allegations in the bill, can make the subject matter of the suit 
 a proper case for equitable cognizance. Baker vs. Bingham, 3 
 Paige, 246. 
 
 Where a new cause of demurrer is assigned, o?-e tenus, the 
 cause must be co-extensive with the demurrer. 
 
 Demurrer overruled, and reference for the appointment of a 
 receiver.
 
 236 CASES IN CHANCERY. 
 
 John A. Pratt and another vs. Edward R. Campbell 
 
 and others. 
 
 1840. Where the Bank of Windsor Imd recovered a judgment against T. E., for S59,0C0, and C. & 
 
 First Circuit. ^ assuming to act as the agents and ailorneys of the bank, eflecied a coiuproinise with T. 
 "^■^^^/^"^^ E., 10 pay ©20,000, and T. E. assigned and dehvcred over to C. & E., as agents and atlor- 
 ^[j" neys, properly and securities to thiit amount, and the bank afterwards denied the authority 
 
 Campbell. of C. & E. to muke the con.proniise, and T. E. afterwards assigned the property and securi- 
 ties to P. & R., and C. & E. refused to re-deliver the property and securities so .issigned, and 
 were proceeding to collect and dispose of the same -, upon hill filed by P. & R., an injunction 
 was granted to restrain the collection and disposition of the property and securities so as- 
 signed, and the chancellor refused to dissolve ir.junc.ion, on motion to dissolve for want of 
 equity in the hill. 
 
 DeceiLbjr 1. Motion to (lissolve injunction, for want of equity. 
 
 The bill states, that in December, 1838, Thomas Emerson 
 was largely indebted to the Bank of Windsor, and a judgment 
 had been recovered against him, by the bank, to the amount of 
 $59,000, upon which the latter threatened to issue a ca. sa.; 
 that E. R. Campbell and Rufus Emerson proposed a compro- 
 mise, in the naine of the bank; that they represented them- 
 selves as the agents and attorneys of the bank, with full pow- 
 er to bind their principal; during the negotiation they confer- 
 red repeatedly with the otiicers of the bank, and Thomas Em- 
 erson refused to treat vvitli them in any other capacity; on this 
 understanding a coiDpromise was made; that previously to this, 
 the bank had commenced various trustee or attachment suits 
 ao-ainst the property and credits of Thomas Emerson, in the 
 states of Ohio, hidiana and Michigan; that by the terms of the 
 compromise, Thomas Emerson was to pay $20,000, in appro- 
 ved securities, in payment and satisfaction of the bank's claim 
 against him; these securities were to be assigned to E. R. Camp- 
 bell and Rufus Emerson, and as collateral security for the pay- 
 ment of ihe assigned sfcuiilies, other obligations were to be 
 transferred to said Campbell and Emerson; that Royal H. Wal- 
 ler, as agent and attorney of all the parties, was to be sent to Mi- 
 chigan to change and secure the obligations which had been as- 
 signed by T. Emerson, in payment and satisfaction of the bank's
 
 CASES IN CHANCERY. 237 
 
 claim against him, and which were principally due and owing ^'"'Circuit, 
 from residents of this state; that the hank authorized him to praii 
 act for them in the premises, and by virtue of their power of campbcii. 
 attorney, he discontinued the attachment suits, changed the 
 form of the securities assigned in payment, took some notes 
 payable to Campbell and Emerson, and took, also, an assign- 
 ment to them of some bonds and mortgages; after doing this, 
 he returned to Vermont. The bank professed to be dissatisfied, 
 and demanded and received additional securities as collateral to 
 those assigned in payment of T. Emerson's dabt, and which 
 had been thus changed by said R, H. Waller; that after this, 
 the bank, for the first time, repudiated the contract, denied the 
 right of E. R. Campbell and Rufus Emerson to bind them in 
 the premises, and, without proffering a return of the securities, 
 proceeded on their judgment against said Thomas Emerson, 
 and issued execution thereon; that at the same time, Campbell 
 and Emerson took similar ground, and claimed all the above 
 securities as their own individual property; that this claim was 
 founded principally on the alterations of the articles, made by 
 them fraudenily, after the first execution thereof; that after the 
 perpetration of these alledged frauds, and the entire failure of 
 the contract between Thomas Emerson and the bank, he as- 
 signed all the securities and all his claim against the bank and 
 said Campbell and Emerson, to the complainants, who had in- 
 curred heavy res[)onsibilities for his benefit. The complain- 
 ants aver the utter insolvency of Edward R. Campbell and 
 Rufus Emerson; they aver that the notes, bonds, &c., are now 
 in Detroit, and some of them in process of collection, and 
 pray that said Campbell and Emei'son may be compelled to de- 
 liver them to the complainants; that the attorneys who hold 
 them may be restrained from giving ihem back to Campbell 
 and Emerson, and from paying moneys already collected to 
 the latter; that no more suits may be brought in behalf of 
 Campbell and Emerson, and that the several debtors may be 
 decreed to pay and account to the complainants; and may be 
 enjoined from paying Campbell and Emerson. 
 
 No injunction is asked to restrain the proceedings at law, 
 already commenced.
 
 238 CASES IN CHANCERY. 
 
 Firstcircuit. Injunction granted. 
 
 p^.^^^ The defendants move to dissolve the injunction, for want of 
 
 cainpbeii. cquity in tlie bill. 
 
 D. Goodwin, in support of the motion. 
 
 1. The whole case is based on the assignment from Thomas 
 Emerson to Emerson and Campbell, which is attempted to be 
 varied as to its legal effect, by parol. 1 Peters^ R., 1; 4 B. 8f 
 
 a,5i3. 
 
 This cannot be done. It was executed with a full knowledge 
 of the facts, and deliberately. Emerson intended to execute 
 just such an instrument at the time of its execution, and the 
 previous conversations and negotiations cannot be resorted to 
 to control it; they are merged in it. 10 Eng. com. law Rep., 
 393; Selvoin JV. P., 107. 
 
 As to the insolvency, it is alledged to have existed at the 
 * time. 
 
 2. Upon the ground assumed by the complainants, there is 
 no consideration for the agreement. Emerson owed the whole 
 debt, and was hound legally to suffer judgment and pay it ; and 
 judgment being rendered, to pay the whole amount. If a false 
 plea were interposed for delay, the court, if such were known 
 to them to be the fact, would strike it out without ceremony, 
 and the agreement to receive a less sum than the amount due, 
 would be no satisfaction or discharge, even if the lesser sum 
 were paid, and the damages upon such a covenant would be 
 merely nominal. Chitly on Con., 277; 17 Johns. R., 169; 5 
 East. R., 252; 4 JS. <^ C, 513; 1 lb., 426. 
 
 3. Thomas Emerson makes no complaint as to the assignment 
 or the present disposition of the bonds, &c. It is not compe- 
 tent for his assignee to do so, of his own motion; on the con- 
 trary, there appears an after consent on the part of Emerson. 
 
 T. RoMEYN, contra. 
 
 The Chancellor. The facts presented in this case, are 
 sufficient to retain the injunction, and entitle the complainants 
 to an answer.
 
 CASES IN CHANCERY. 239 
 
 After Campbell and llufus Emerson had obtained an assign- ^'"■"<-"'f''""- 
 went and the possession of the property of Thomas Emerson, prau 
 jy assuming to act as the authorized agents and attorneys of Caiiipi>eii. 
 the Bank of Windsor, the bank refused to perform the condi- 
 tions on which the assignment was made, and denied the au- 
 thority of Campbell and Emerson to act as the agents of the 
 bank in the premises, and both the bank and Campbell and Em- 
 erson, who assumed to act as the agents of the bank, now re- 
 fuse to return the property, and are proceeding to collect the 
 demands, and use the property assigned by Thomas Emerson. 
 
 It also appears, that subsi-'quent to the disavowal of the au- 
 thorif)' of Campbell and Emerson by the bank, to act as its 
 agents in the premises, and denial of their authority to make 
 the compromise, Thomas Emerson has assigned the property 
 and demands to the complainants, who claim to be the legal 
 and bona fide owners of the same. 
 
 The facts presented by the bill, are sufficient to authorize the 
 retaining of the injunction, and the motion to dissolve must 
 be denied. 
 
 Motion denied.
 
 240 CASES IN CHANCERY. 
 
 Clark &i Tillinghast vs. the Saginaw City Bank 
 and Norman Little. 
 
 1840. A defendant may plead to one part of the bill, and answer to another part ; but these defences 
 
 First ircuu. ^^^^ clearly refer to separate and distinct parts of the bill. 
 
 Cl.irk &. Til- ^^ *''^" ^'''^ ^"''^^'cr Juid pica arc to thesame parts of the bill, the answer overrules the plea. 
 linghast 
 
 saeimtwcity The l;ill in this case is filed for the collection of certain 
 Normau'Lit- ^IHs and drafts of the Saginaw city bank; for a discovery, and 
 the removal of Norman Little, the receiver heretofore appoin- 
 ted, and prays for the appointment of a new receiver, &c. 
 December 2. rpj^g defendants plead to all the discovery prayed in the bill, 
 and to all the relief prayed, except as to the dividend to be 
 received from the receiver, and answer to nearly all the mat- 
 ters charged in the bill. 
 
 The case was set down for agreement on the plea, under 
 the provision of rule 32. 
 
 E. C. Seaman, for complainants. 
 
 The answer overrules the plea. J\lit. PL, 319, 320; Slory^s 
 Eg. PL, 505, 50G. 
 
 S. G. Watson, for defendants. 
 
 The Chancelloh. The defendants may plead to one part 
 of the bill, and answer to another part; but these defences 
 must clearly refer to separate and distinct parts of the bill. 
 If the defendants have answered to any part of the bill to 
 which they have pleaded, the answer overrules the plea. J^it. 
 PL, 310, 320. (1) 
 
 The plea in this case, extends to all the discovery, and near- 
 ly all the relief prayed. In fact, the plea and answer appear 
 to apply to the same parts of, and each to nearly the whole 
 bill; the answer overrules the plea. 
 
 Plea overruled. 
 
 (1) SeeJametVH. Sadgrove, 1 Sim. if .SYu.,1,t Cond.Eq. Ch.Rep.,3; Morrison vs. Tumour, 
 18 Vet., 175; Bowas vs. CurUr, 4 Ves.. 91 , BayUy vs. Adams, 6 Vtt., 5?6; Watkin* vs. Stone, 
 2 Sim. if Stu., 560 ; 1 Cond. Eq. C'k. JUp., 588.
 
 CASES JN CHANCERY. 241 
 
 Thomas B. W. Stockto.v and otiicrs va. Garunek D. 
 Williams and otlicrs. 
 
 A regiilnr order lo tiikc llir lull ns confcaseil, wil! not be act iiMicIc upon u simple uirulavit of IfllO. 
 
 nicritii, ulllioiigli iiii cxcusf is t;iven for Uu-dcfiiull. rirsi Circuit. 
 
 In such case, the ilfft-ndiinl iiiuat cither proiluce lUc sworn niiswcr which ho pronoses to put ^. , . 
 
 ' 111- &<io('Klon 
 
 hi, or must in his petilion or iilliduvil, suite the iinliire of his defence, and his Ijchef In the n. 
 
 truth of the iniitlcrs consiiiuiing such defence. dliums. 
 
 The bill ill this case was taken, pro confesso, ag.-iiiist all the uecemuer 2. 
 defendants; cltifetulant Williams movt's to st't asidti lh(> order, 
 pro confesso, and for kiavc to aiisw tM\ wliidi iimtion is I'onndcd 
 on the atViclavils of (lelciiilaiit Williams and his solicilois. Will- 
 iams in liis allidavit, states, that he has I'ully and lairh' stated 
 liis defence to iiis solicitors, and is advised hy his said solicit- 
 ors, and veril\' hclicvcs that he has a good and stihstaiitial de- 
 fence on the merits. It) the com|>lainaiit's hill til((>m|ilaiiit, and 
 that great injustic(; would ho iloiu\ if he slionid ho pi'ochidod 
 from j)utting in an answiM', and thoichy ha\ingan op|)()rtLini ty 
 of contesting the validity of iho claim sot up hy the rom|i|ain- 
 ants; that the pro|ioi(y in controversy, is of groat \aliio, ilv^c. 
 
 Hunt aiul Watson, tlio solicitors for Williams, in llicir aditla- 
 vits excuse the tlolatilt, on iho vioniul o( a mis i|i|ii- hcn-^ion of 
 the practice, &c., and also slato ihoir holiof that the dolond- 
 ant, Williams, has a defence on the merits, &c. 
 
 Hunt and Watson, in support of the motion. 
 
 Fraser and Romkyn, opposed the motion. 
 
 Before the court will open an onlor to take iht." hill, pro con- 
 fesso, it will rotpiire that iho answi r iniiposod lo lie led, he 
 exhihited. 1 //o//w. /v., :>:);{; llmir vs. Ogiivic, 11 /V.^'., 77. 
 
 Tiie court will also iiMpiiro lo hi: sati.-fied, hoih that the 
 answer is matciial, and apparently In!'. 1 11 ffin. //•., 55 5. 
 
 The defendant should have slated ilio iiatiir ; o! his defence, 
 before making this moiion. Ltinsing vs. JMcPhcrson, 3 Johns. 
 a R., 424; Hunt vs. Wallu^iS Pai^e, »72. 
 
 Vol. I. 31
 
 242 CASES IN CHANCERY. 
 
 First Circuit. The CHANCELLOR. A regular Order to take the bill as con- 
 fessed, will not be set aside upon a simple affidavit of merits, 
 although an excuse is given for the default. In such cases, 
 the defendant must either produce the sworn answer which he 
 proposes to put in, so that the court may see that he has mer- 
 its, or must, in his petition or affidavit, state the nature of his 
 defence, and his belief in the truth of the matters constituting 
 such defence, so far, at least, as to enable the court to see that 
 in justice, will probably be done if the order to take the bill as 
 confessed, is permitted to stand. Hunt vs. Wallis, 6 Paige, 
 371; Lansing vs. McPherson, 3 Johns. C/i. R., 424. 
 
 The defendant may have twenty days to exhibit his answer, 
 under the circumstances of this case. 
 
 The answer having been exhibited within the twenty days, 
 the chancellor opened the default, and permitted the same to 
 be filed, on payment of costs.
 
 CASES IN CHANCERY. 243 
 
 Clinton E. Atwater and otliors vs. James K. Kix- 
 
 MAN and others 
 
 Where no preliminary order ia required, it is not necessary that bills should be sworn to, al- 1841. 
 
 though the answer under oath is not waived. Second Cir- 
 
 " cult. 
 
 Where, in a foreclosure of a mortgasrc, by adverliscmcnt under tlie statute, a mistake occurs, V^^^.^^^/ 
 
 which renders Itie proceedings irregular ;ind void^ihlc, the morlg.-igee lias a right to waive Atwater 
 
 those proceedings, and commence denovo, either by advertisement under llie statute, or may Kiimian 
 
 avail himself of the right he had in the first instance, to seek his remedy in this court. 
 
 This was a bill to for^ploBo a moitv^uge, uiid slates, ihat about •''^"""y^®- 
 May 28, 1838, Carl Brockhousen and wife, executed a mort- 
 gage to Claiion E. Atwater and Henry A. Delavan, the com- 
 plainants, (to secure the payment of four hundred dollars, in 
 six months from date,) on the south-west quarter of the north- 
 east fractional quarter of section two, in township six, south 
 of range three west, containing forty acres; also, the north- 
 east quarter of the south-west quarter of section number two, 
 aforesaid, containing forty acres; that the mortgage was duly 
 recorded. &c. The bill is in the usual form for a foreclosure, 
 and does not waive the necessity of the defendants' answerinf^ 
 on oath. It further states, that, from the examination of the 
 records, it appears that James K. Kinman had purchased the 
 said mortgaged premises for the sum of twelve hundred dol- 
 lars, and received a deed for the same, about March 28, 1839, 
 which deed was on record. 
 
 The bill further states, that complainants had foreclosed their 
 mortgage by advertisement under the stafnfe, and that the 
 mortgaged premises were sold, under such advertisement, April 
 9, 1839. at the court house in the county of Hillsdale, where 
 the mortgaged premises were situated, by the sherifl' of said 
 county, and bid in by Salem T. King, agent and attorney for 
 complainants, for the sum of four hundred and forty-seven dol- 
 lars and sixty-three cents; that the usual certificate had been 
 given by the sheriff, which certificate, affidavits of publication, 
 &c., were duly recorded. 
 
 That complainants had subsequently ascertained, that the
 
 cuit. 
 
 244 CASES IN CHANCERY. 
 
 Second cir- sale was irregular, in as much as both lots were sold together, 
 instead of being sold separately, pursuant to the provisions of 
 
 the statute. 
 
 The bill further states, that Kinman had declared the sale to 
 be irregular, and that complainants would be compelled to 
 foreclose again, and that he had given complainants to under- 
 stand, that he should disregard the sale entirely, and that com- 
 plainants are apprehensive that if the sale should be consider- 
 ed voidable only, and liable to be made good by the acquies- 
 cence of the parties, yet, that the defendants would refuse to 
 redeem the said premises, tind that they would contest any 
 proceedings at law, to obtain possession of said premises. 
 
 The defendants demur. 
 
 Lee and Pratt, in support of the demurrer. 
 
 1. Complainants' bill is not sw^orn to by complainants, their 
 agent, attorney, or solicitor, nor the answer of the defendants 
 on oath waived; the demurrer, therefore, is well taken. This 
 point is settled by the thirteenth rule of this court. It is also 
 well established by the practice and decisions of the court of 
 chancery. Lansing vs. Pine, 4 Paige Ch. R., 639. 
 
 2. If the bill filed was verified by the oath of complainants, 
 or any other person, the defendants were not bound to look 
 beyond the copy of the bill served on their solicitor. Lansing 
 vs. Pine, 4 Paige Ch. R., 639. 
 
 3. In the first place, the complainants had their election to 
 foreclose their mortgage at law or in equity, and having made 
 their election and forecloocd at law, sold and bid in the premi- 
 ses; they cannot now foreclose again in this court. 
 
 4. The complainants have not made such a case, upon the 
 face of their bill, as entitles them to any relief in this court. 
 The complainants do not ask to have their foreclosure at law, 
 set aside at their own expense; nor does it appear that the 
 complainants have ever asked the defendants to waive, or in 
 any way release any error in the proceeding at Lw. Nor does 
 it appear, but that the defendants would have been willing, at
 
 CASES IN CHAiNCERY. 245 
 
 cim. 
 
 Atwater 
 
 vs. 
 Kiniiiai). 
 
 any time, to have released any error, if desired or requested, ftecon.icir 
 Nor does it appear, but that the defendants intend, in good 
 faith, to pay up the mortgage and redeem the premises, before 
 the time for the redemption expires. 
 
 5. If there was an error in the proceeding to foreclose at 
 law, it does not render the foreclosure void; at most, the pro- 
 ceedings are only voidable; and, therefore, until the defend- 
 ants take some steps, to avoid the validity of the foreclosure 
 and sale, the complainants cannot, in equity, ask permission of 
 this court to avoid their own proceedings. A foreclosure at 
 law is in the nature of a judicial proceeding, or any other pro- 
 ceeding at law. 
 
 A bona fide purchaser under a judicial or other sale at law. 
 is always protected, where there is jurisdiction. And this ques- 
 tion is fully settled in the case of the American Insurance Co. 
 vs. Fisk, 1 Paige C/i. R., 90; and in which case the bill was 
 dismissed by the chancellor on that ground. 
 
 George C. Gibbs, for complainants. 
 
 The Chancellor. Where no preliminary order is requi- 
 red, it is not necessary that bills should be sworn to, although 
 the answer under oath is not waived. This is not required 
 by the English practice, or by the rules of this court, as they 
 now stand. 
 
 As to the other point raised by the demurrer, it is alledged 
 that, in the proceedings to foreclose under the statute by ad- 
 vertisement, a mistake occurred, which renders the proceed- 
 ings irregular and voidable. 
 
 It would certainly be in the power of the mortgagee to w^aive 
 those proceedings and commence de novo, under the statute. 
 And this being undoubtedly competent, I can see no reason 
 why he may not avail himself of the right he had in the first 
 instance, and seek his remedy in this court. If he seeks his 
 remedy here, he of course waives the proceeding under the 
 statute, and all claim for costs under that proceeding. 
 
 I can see no reason for the argument, that, by first proceed-
 
 2^ CASES IN CHANCERY. 
 
 Se:o,d ar- [ng Under the statute, which proceeding, by mistake or acci- 
 dent, is inoperative or void, that the party has made his elec- 
 tion, and cannot have relief here. 
 
 The demurrer must be overruled with costs.
 
 CASES IN CHANCERY. 247 
 
 Charles Thayer and others vs. Marcus Lane ad- 
 ministrator of the estate of iSamuel Wheeler and 
 others. 
 
 Courts of equity have jurisdiction nnd will entertain proceedings for partition, where a por- 1641. 
 
 tion of the property has changed hands and the rights and interests of tlie several parties ' ■ ' " 
 
 bave become complicated and are in rlispute. v^^^r-sr-'^fc^ 
 
 Where a demurrer is to the whole discovery and rclirf prayed by the bill, if the complainant is Thayer 
 entitled to any part of the relief the demurrer must be overruled. line 
 
 Where an administrator under a license from a judge of probate was proceeding to sell the in- 
 terest of the intcst.ite in sixteen village lots, which interest was stated to l:c one undivided 
 half, \ipon a bill tiled by the other parlies interested, staling that the intestate owned only an 
 undivided interest of one-third, an injunction was granted to restrain the sale and the chan- 
 eellor refused to dissolve the injunction until the interest of the intestate was ascertained and 
 settled. 
 
 The bill in this case was filed for a partition, and states that JanuaryM. 
 Samuel Wheeler and Richard H. Root (both deceased) of the 
 slate of Ohio, were, in their lifetime, seized in fee as tenants in 
 common, of certain village lots in the village of Ann Arbor, in 
 the state of Michigan; that said Wheeler died intestate, lea- 
 ving five children, his heirs at law. That Root was seized of 
 two equal undivided third parts of said village lots, and Whee- 
 ler was seized of the other equal undivided third part thereof. 
 That Charles Wheeler, brother to S. W^ieeler, was appointed 
 administrator upon the estate of S. Wheeler, in the state of 
 Ohio, and was also appointed guardian for Amanda Wheeler, 
 one of the heirs. 
 
 That about June 18, 1834, William IMunroe, of the state of 
 Ohio, was treating with Root for the purchase of his interest 
 in the lots; that it was finally agreed between Root, Munroe 
 and Wheeler, administrator, that he Wheeler, should have his 
 first choice of four of the lots for and in behalf of the heirs of 
 S. Wheeler, and that Root should take the remaining twelve 
 for his portion; and that C. Wheeler and Munroe should pro- 
 ceed from Madison in the state of Ohio, (where this arrange- 
 ment was made,) to Ann Arbor, in the state of Michigan, and 
 make partition according to said understanding and agreement.
 
 248 CASES IN CHANCERY. 
 
 Second cir- That it was the express agreement that the four lots to bs first 
 
 cuit. ... 
 
 v^^^s^r-^^ selected were equal to one-third part of the sixteen lots in 
 Thayer value. That Root and wife conveyed to Munroe, by deed, 
 ^''"^' twelve equal undivided sixteenth parts of said lands, to be held 
 in comnnon with the heirs of S. Wheeler. That soon after- 
 wards Wheeler, administrator, and Munroe proceeded to Ann 
 Arbor and made partition, and Wheeler, the administrator 
 chose and selected lots number 15 and 16 in block number 2, 
 north of Huron street, range 6, and lots number 4 and 5 in 
 block 3, north of Huron street, range 3, as the four lots to be 
 by him selected for the heirs, and that Munroe accepted and 
 received the other twelve lots as his portion and assented to 
 such partition and division. 
 
 That September 10, 1834, Muni-oe deeded to complainant, 
 Charles Thayer, the said twelve lots; that, the deeds from Root 
 and wife to Munroe and from Munroe to complainants were 
 duly recorded, &c. ; that the deed from Munroe to complainant, 
 Thayer, was intended to convey to complainant, Thayer, the 
 entire interest Munroe had in said 16 lots. That complainant, 
 Thayer, took immediate possession of the lots, and continued in 
 possession; that in the month of Dec, 1834, Thayer conveyed 
 lots number 6,7 and 8 in blocks, to complainant, George Kline- 
 dob; lots 5 and 6 in block 2 to William J. Rroun; lot num- 
 ber 4 to Caroline BroWn; the deeds of which said several lots, 
 were duly recorded, &c. That lots number 4 and 5 had since, 
 by several intermediate conveyances, been conveyed to com- 
 plainant, George Ward; that lot number 6 has been conveyed 
 to complainant, William F. Leaman, by deed bearing date 
 December 6, 1836, recorded April 8, 1^37; that complainant, 
 Thayer, conveyed lots 7 and 10 in block 3, to A. Burr Harring- 
 ton, and he conveyed the same to Samuel Hamlet, who then 
 owned and occupied the same; that the purchasers of said lots 
 respectively had taken possession of the same and made valua- 
 ble improvements in good faith and with the full belief that 
 the purchasers thereof respectively had good and perfect titles 
 to the same. Bill states that partition may be made of the 
 said sixteen lots so as to save to complainants, their respective
 
 vs. 
 Lane. 
 
 CASES IN CHANCERY. 249 
 
 improvements, and still do justice to all persons interested in secon(i cir- 
 said premises. The bill further states that Marcus Lane has >^^--v-^^ 
 been appointed administrator of said Samuel Wheeler, decea- Thayer 
 sed, by the judge of probate of the county of Washtenaw, 
 state of Michigan, and that ho had published notice that he 
 would expose for sale at public vendue at the court house in 
 the village of Ann Arbor, on the third day of August instant, 
 the equal undivided half of all of said lots, by virtue of a power 
 and licenso granted by the judge of probate of the county of 
 Washtenaw, aforesaid, authorizing the sale of the real estate 
 belonging to the estate of the said Samuel Wheeler, deceased. 
 
 An injunction was granted to restrain the sale. 
 
 Defendant Lane, the administrator demurred to so much of 
 the bill as prays for relief and discovery, and to the agreement 
 in the bill mentioned between Charles Wheeler and William 
 Munroe for a division and partition of the premises, and assigns 
 for causes of demurrer, that the complainants have a full and 
 complete remedy at law if tliey are entitled to any relief. 
 
 The defendant, Lane, also answers and admits, that Samuel 
 Wheeler and 11. H. Root were seized of the premises in ques- 
 tion as tenants in common, in equal proportions; as to the 
 statement in the bill, that Wheeler owned one third and Root 
 two thirds undivided, he knows not and cannot answer as to 
 his belief or otherwise. Admits the death of Samuel Wheeler, 
 leaving certain persons his heirs at law whose names he states 
 are unknown to him; admits that the complainants and the de- 
 fendant Howlet have acquired a title to an undivided interest 
 in the premises, but how or by what means, or what title or 
 interest they have acquired he knows not, and cannot answer 
 as to his belief or otherwise; that he has been informed and 
 believes, that Ward, Klinedoband Leaman, complainants, have 
 made valuable improvements on some parts of the premises, 
 but upon which part he does not know, and cannot answer. 
 
 Admits his appointment as administrator, and sets forth all 
 the proceedings under that appointment, and states that he has 
 no estate or interest in the pr>jmises except as administrator; 
 admits that he gave notice of his intention to sell the equal un- 
 
 [VoL. I.] 32
 
 250 CASES IN" CHANCERY. 
 
 Second cir- divided half part of the premises under an order fronn the judge 
 
 K^JC^^^ of probate for the payment of the debts due from the estate of 
 
 ™" Samuel Wheeler, which estate is reported insolvent, and states 
 
 ^*"^" that he intends to sell as soon as the injunction is dissolved; 
 
 states that he has paid all taxes which he could find returned 
 
 to the register's office, against the premises, without regard to 
 
 the interests of the complainants or any other person. 
 
 The cause was heard upon the demurrer and a motion to 
 dissolve the injunction. 
 
 Marcus Lane in support of the demurrer and motion to 
 dissolve the injunction. 
 
 1st. It does not appear that Charles Wheeler was appointed 
 administrator by any court or authority having power to ap- 
 point. 
 
 2d. It does not appear that said Charles, if appointed by au- 
 thority, accepted of the appointment, and entered upon the 
 duties of his office. 
 
 3d. It does not appear that said Charles, if appointed and 
 qualified according to the laws of Ohio, had any power or au- 
 thority to lease, sell, divide or control the real estate of his 
 intestate. 
 
 4th. It does not appear that said Charles Wheeler was ever 
 qualified or authorized to administer upon the estate of said 
 intestate within the state of Michigan. 
 
 5th. That an administrator, appointed according to the laws 
 of another state, has no power, or authority, or control over 
 the estate of an intestate within this state, unless specially au- 
 thorized by a court of competent jurisdiction in this state. 3 
 Mass. Rep., 514; 81 lb., 18; 11 Ih., 313; 10 Wlieaton Rep., 
 192; 1 Cranch, 259. 
 
 6lh. That an administrator, appointed according to the laws 
 of this state has no power or authority to divide, sell or other- 
 wise dispose of the lands of his intestate, except for the purpose 
 of paying the debts of his intestate. 4 Mass. Rep., 358; 1 lb., 
 45, 46; 2 lb., 478. 
 
 7h. It does not appear that the partition was reduced to
 
 Thayer 
 
 vs. 
 
 hixac. 
 
 CASES IN CHANCERY. 251 
 
 writing, or that it ^vas made by said Charles in his capacity of ^'^*^°"[! ^'^" 
 administrator. 
 
 8th. Tliat complainants have a full and ample remedy at 
 law. 
 
 Miles and Wilsox, contra. 
 
 1st. As to the demurrer. 
 
 A court of chancery has concurrent jurisdiction with a court 
 of law, to compel partition between tenants in common. 1 Mad. 
 Ch., 244, Coleman vs. Ilulchenson, 3 Bibb., 209. 
 
 The title here is not disputed, the only question is as to the 
 extent of the interest of the respective parties. The complain- 
 ants' right to one equal undivided half part of the premises, is 
 admitted by the answer. 
 
 Must the answer of all the defendants be in, before motion 
 to dissolve the injunction can be sustained? the other defend- 
 ants are not involved in the charge against Lane, upon which 
 the injiinction \v;.s granted. 
 
 The answer does not disprove the facts stated in the bill. 
 
 The defendant, Lane, has omitted to answer the statements 
 in the bill: 
 
 1st. That Charles Wheeler was appointed administrator in 
 Ohio, and also guardian to one of the minor heirs. 
 
 2d. That Charles Wheeler agreed with R. H. Root, the 
 other tenant in common, to make partition of the sixteen lots; 
 the demurrer only admits the agreement between Charles 
 Wheeler and Munroe. 
 
 3d. That Charles Wheeler and Munroe made partition; that 
 
 Munroe immediately gave a deed of the twelve lots which 
 fell to his share, to Thayer, the complainant, who took posses- 
 sion. 
 
 The defendant admits that complainants and Howlet, one of 
 the defendants, have acquired a title to an undivided interest 
 in the premises; that War I. Kline:lob an:l Seaman have made 
 improvements, but leaves unanswered the fact that Howlet, 
 the defendant, has made improvements on his lot. 
 
 The fact that the four lots remaining unsold by Thayer, are
 
 vs. 
 LiaDe. 
 
 252 CASES IN CHANCERY. 
 
 ^^"^cuii^"^' of equal value with any of the eight sold by him, setting aside 
 ■s^^v'-^t-' improvements, is unanswered. 
 
 n>er r^^^ material fact, that Root was seized of two third parts 
 and Samuel Wheeler of one third part of the premises, is left 
 unanswered; the defendant, Lane, does not even state that he be- 
 lieves it untrue. [SeeJijithorp vs. Comstock, Hop. Ch. Rep., 148.) 
 Tlie defendant insists that the complainants can only claim, 
 under the legal title, and that they must go to the law courts, 
 and have partition under that title. [See Madd. Ch., 3d Amer. 
 ed., 244; Cox vs. Sinith, A John. Ch. Rep., 271.) 
 
 But here has been a partition by parol, and a long continued 
 possession under it. The defendant has not answered this 
 part of the bill; he does not deny Thayer's possession, and 
 those holding under him; and to the charge that he, as admi- 
 nistrator, has taken possession of the four lots selected by 
 Charles Wheeler, and has paid the taxes thereon, he answers 
 evasively as to the payment of taxes, and as to taking posses- 
 sion, there is no answer. [See Jackson Ex. dem., Antell and 
 wife vs. Brown, 3 John. Ch. Rep., 453, as to partition by parol.) 
 But was Charles Wheeler, as administrator and guardian, 
 authorized to act in making partition? the validity of his acts 
 is not £[uestioned by the answer; that he did act in making the 
 partition, is admitted by the demurrer; and that the defendant, 
 Lane, has acquiesced in this division, and ratified the partition, 
 appears from the fact not denied by the answer, that he took 
 possession of the four lots selected by Charles Wheeler for the 
 heirs. (<S'ee Jackson vs. Richtmyer, 13 John. Rep., 367.) 
 
 But further as to the improvements. Partition may be made, 
 reserving to the complainants their improvements, without 
 prejudice to the other persons concerned; this is not denied. 
 On a partition, every part of the estate need not be divided. 
 1 Madd. Ch., 245. 
 
 The Chancellor. That courts of equity have jurisdiction 
 in cases for partition, where the facts are like those here pre- 
 sented, is well settled. 
 
 The demurrer here being to the whole discovery and relief, 
 cannot be sustained; the demurrer must, therefore, be over- 
 ruled.
 
 Lune. 
 
 CASES IN CHANCERY. 253 
 
 As to the injunction, I have had some doubt whether the dc- ®"°"i?.^'''' 
 fendant, Lane, should not be permitted tJ sell whatever inte- ^-^^v^^^ 
 
 • Tliayer 
 
 rest the estate may have in the premises; but as the amount 
 of the interest of the several parties is disputed, it being al- 
 ledged in the bill that the heirs of Wheeler are in fact entitled 
 to but one-third of the premises, and the defendant, Lane, 
 proposing to sell one half, a sale would further embarrass the 
 title, and I think the injunction should be retained until those 
 rights are ascertained and settled. 
 
 Demurrer overruled and injunction retained.
 
 254 CASES IN CHANCERY. 
 
 Pratt and Barker vs. the Bank of Windsor. 
 
 1P41. The f ervice of a subpoena upon a defendant out of tbe state is irregular. 
 First Circuit. 
 
 "-.^^v^^ This was a motion to set aside the default entered in this 
 Barker casc, and the service of the subpcena, on the ground that the 
 Bank of subocEna was served out of the state. It appeared that the 
 
 AVindsor. ^ , r ^ • i r ir 
 
 subpoena was served on the defendants in the state ot Ver- 
 mont. 
 
 Februarys. D. GooDwiN in support of the motiou. 
 
 The service of the subpoena was irregular and void; the ser- 
 vice and all subsequent proceedings must, therefore, be set aside. 
 R. S., 366, 367, 371; Dunn vs. Dunn, 4, Paige R., 425. 
 
 T. RoMEVN opposed the motion. 
 
 Cited 1 Hoff, Pr., 110 to 112, n. 
 
 The Chancellor. This motion must be granted on the 
 authority of the case of Dunn vs. Dunn, 4 Paige, 425. The 
 case is there fully considered, and Chancellor Walworth, after 
 a full examination of all the authorities upon the subject, comes 
 to the conclusion, that the service of a subpoena out of the state, 
 is irregular. 
 
 Motion granted.
 
 CASES IN CHANCERY. 255 
 
 Jerome vs. Seymour. 
 
 Where theassignfe of a mortgage files a bill to foreclose, setting forth the mortgage and assign- jg4, 
 ment, he may, upon the notice required by the 6'2d rule to the opposite party, have an order First Circuit, 
 to prove the assignment as an exhibit at the hearing under the provisions of rule 56. ^^^'v^^^ 
 
 Jerome 
 
 This was a bill of foreclosure filed by the assignee of the seymour. 
 mortgage. 
 
 The mortgage and assignment to the complainant, was set Februarys, 
 forth in the l ill. 
 
 Complainant gave four days' notice under the provisions of 
 rule G2, of a motion for an order to prove the assignment of 
 the mortgage as an exhibit at the hearing under the provisions 
 of rule 56. 
 
 E. C. Seaman, for complainant. 
 
 W. Hale, for defendant. 
 
 The court granted the order. (1.) 
 
 (I,) (See Contequa vs. Fanning, 2 John. Ch. R., 481, where a like order was granted.
 
 256 CASES IN CHANCERY. 
 
 cult. 
 
 Hinging 
 vs. 
 
 HiGGTNs and others vs. Carpenter and another. 
 
 1941 Where the defendants moved for the confirniation of a decree to dismiss the suit, on the ground 
 
 Third Cir- {jj^^ j],g complaincinls had failed to comply with an order emered under rule 20, for a copy of 
 the bill, and it appeared that subsequent to the defaul', the di-fcn;lants had filed their answer 
 and moved to dissolve the injunction — /( was held that the defendants had waived their right to 
 dismiss the suit for want of service of a copy of the lill; and it was further held, that this 
 Carpenter. oeing an application for a final decree in the cause, should be made at a general, and not at a 
 special term. 
 
 This was an application at a special term, foi* confirmation 
 of a decree to dismiss the bill. 
 
 H. N. Walker, for defendants, at a special term, on affi- 
 davit of the entry of an order for service of copy of the bill 
 in 15 days, as required by rule 20 of this court, and of the 
 due service of notice of the oi-der, and also, stating that no 
 copy of the bill as required by the rule had been served, 
 and that defendants have entered a decree in vacation with 
 the register of the court, dismissing the bill with costs, now 
 moved for the confirmation of the decree dismissing the bill. 
 
 B. F. CoopKR, for complainants, produced an affidavit, from 
 which it appeared that the defendants, after the entry of the 
 decree dismissing the bill, had moved the court for a dissolu- 
 tion of the injunction on the bill, and answer served upon him 
 since the entry of the decree dismissing the bill. 
 
 He insisted that by the practice of this court, under rule 17, 
 a defendant may answer either with or without the service of a 
 copy of the bill. If he chooses to save the expense of a copy 
 of the bill, by resorting to the pleadings on file in the register's 
 office, he can do so. If he claims , a copy of the bill, he may 
 compel the service of a copy by virtue of rule 20. That rule 
 is one for the defendants accommodation in answering; and if 
 subsequently to the entry of an order for service of a copy, 
 he accepts a service for any purpose, the object of the rule is 
 annulled, and the order is waived. 
 
 If the order, requiring service of a copy of the rule, were
 
 CASES IN CHANCERY. 257 
 
 If the order, requirinfj service of a cony of the bill, were Third cir- 
 not so waived, the motion to dissolve the injunctions on the bill v,^-v-%,. 
 and answer served after the decree to dismiss, was a waiver "'il'"^ 
 of that decree in accordance with the rule which waives an ir- ^^p'^"*''- 
 regularity, by taking proceedings in the cause subse(]uently to 
 it, without taking advantage of this irregularity. 4 Paige, 
 288, 439; 2 John. C/i., 242; 5 lb., 191. 
 
 That if the decree to dismiss was not waived by defendant, 
 this motion should be denied with costs, for the reason that by 
 the terms of the rule, the decree to dismiss is a final and not 
 an interlocutory decree. It is analogous, in some respects, to 
 a rule for a discontinuance at term, which requires ao confir- 
 mation. 
 
 The Chancellor. The defendants having, subsequent to 
 the default, filed their ansvver, and based thereon a motion 
 to dissolve the injunction, have waived the right to dismiss for 
 wanl of service of a copy of the bill. 
 
 Further. This being an application for a final decree in 
 the cause, should be made at a general term. Rose vs. Wood- 
 ruff, 4 John. Ch. R., 547. 
 
 Vol. I. 33
 
 258 
 
 CASES IN CHANCERY. 
 
 Kellogg vs. Barnes. 
 
 1840. Where the complainant had due notice of a motion to dissolve an injunction, and he neglected 
 Second Cir- {„ appear and oppose the motion, the defendant was permitted to take his order dissolving the 
 injunction with costs> 
 
 Kellogg 
 
 vs. 
 Barnes. 
 
 Motion to dissolve an injunction. 
 
 B. F. Cooper, for defendant. 
 
 Moved, in tendering admission of due service of a notice 
 of the motion that the injunction issued in this cause, be dis- 
 solved, for want of equity in the bill. No counsel for the com- 
 plainant appearing to oppose, Cooper contended that the prac- 
 tice in such cases was, or should be, that the motion, be 
 granted with costs, without the papers being read or any 
 further account given to the court, than simply to state the ap- 
 plication to be made, and show, by admission or affidavit, that 
 notice had been brought home to the opposite party. 1 Smithes 
 Pr. 66; Rule 62, 69; 2 Caines' R., 379, 80; 3 Caines' R., 82; 
 1 Hnff. Pr., 551; 1 Dunlaps Pr., 327, 350-2. 
 
 H. N. Walker, as amicus curiae, suggested that the former 
 practice of the court had been to look into the papers as if they 
 had been submitted on argument. 
 
 The Chancellor. Where a party after service of notice 
 of retainer, neglected to appear and oppose, the court say, by 
 not appearing, the party consents to the application. Ekhart 
 vs. Dcarman, 2 Caines^ Rrp., 379. Such, also, appears to be 
 tho practice in England. 
 
 The defendant may take the order that the injunction be dis- 
 solved with costs, stating in the order, however, that no one 
 appeared on the motion to opposCr
 
 CASES IN CHANCERY. 
 
 259 
 
 Hannah Walton and others vs. Joseph W. Torrey 
 
 and others. 
 
 The provision in a will that the estate shall remain undivided until the yo<ingesl of the dcvi- IMl. 
 sees becomes of the age of twenty-one years, is not such a limitation vj3 will inhibit any one "^''' "^*^"' ' 
 of llie devisees from conveying his interest in the premises. V^^^V^.^ 
 
 Provisions in restraint of alienation are not to be favored. ^ 
 
 Where a sale of real estate was ordered by a judge of probate and it appeared that he himself Torrey. 
 
 became interested in the purchase, tlie sale was set aside and a resale was ordered to be made 
 
 under the direction of the court. 
 
 « 
 
 The bill of complaint was filed in September, A. D. 183G, 
 and states that in May, A. D. 1825, one Jesse Hicks, of Wayne 
 county, Michigan, was seized and possessed of a certain farm 
 of 271 33-100 acres, on the River Rouge, in said county, cajl- 
 ed the Hicks farm; and that said Jesse duly made and pub- 
 lished his last will, dated May 7, 1825; the provisions of the 
 will are set forth as follows: 
 
 1st. My will is, that all my just debts and funeral expenses 
 be paid out of my personal property. 
 
 2d. That as regards my real estate, my will is, that it re- 
 main undivided in the use, occupation and possession of all my 
 children now living, until the youngest attains the age of twen- 
 ty-one years, and that until that time, the rents and profits be 
 equally npplied in and towards their support and education; that 
 when and so soon as the youngest child shall have attained the 
 age of twenty-one years, my will is that an estimation of all 
 the value of my real estate be made by Orville Cook, of De- 
 troit, and Henry I. Hunt, of the same place, or if they should 
 not be living at that time, then by such persons as they may 
 have nominated, and after such estimation and valuation, that 
 the said real estate be divided equally, and share and share 
 alike among my children now alive, or the survivors of them, 
 and the heirs of any who may die previous to such division. 
 
 3d. Such part of my stock and personal property as may re- 
 main after payment of my debts, I will to bo distributed, one- 
 third to my wife, and the remainder to remain for the use of 
 the farm.
 
 ^60 CASES IN CHANCERY. 
 
 Firstcircuit. 4th. My will is, notwithstanding, that nny wife be entitled 
 ^'I^r^^ to the use of the homesiead durino; her Vde, and also the pro- 
 
 WaUon =■ ' ^ 
 
 To7r'ey- ^^^ °^ one-third part of the farm on which I live. 
 
 5th. I hereby revoke and annul all former wills, testaments, 
 codicils or parts of the same heretofore made and executed. 
 
 In witness whereof, &c., 
 
 The bill further states, that in May, 1825, said Jesse died, 
 leaving the complainants, Hannah Walton, now Hannah Hicks 
 his widow, and Jesse A., Betsy, Hannah, Adaline and Theodore 
 E. Hicks; also Caroline Hick.-, (since deceased,) without issue, 
 and Andrew Hicks, (supposed deceased,) his children surviving 
 him; that the farm has not been sold to pay said Jesse's debts; 
 that said widow and children, except Andrew and Caroline are 
 sole surviving devisees of said Jesse's will; that said Theodore 
 is youngest, and will be twenty-one years old in the year 1841; 
 thatLarned and Torrey were, in 1829, and previously, lawyers 
 practising in Detroit; that after said Jesse died, his said wife 
 and children believing said L. and T. had been the counsel of 
 said Jesse, applied to them for advice as to the rights and du- 
 ties of said widow and children under said will; that said L. 
 and T., by a show of kindness and regard, gained the entire 
 confidence of the said widow and children in their legal ability 
 and integrity, and became their counsel, and had their papers 
 relatmg to said will, and knew all the rights and duties of said 
 widow and children under said will, and knew that said Theo- 
 dore would not be of age till A. D. 1841; that L. and T, in 
 1829, told said widow and children that they might sell or en- 
 cumber said Hicks' farm, notwithstanding said will, which they 
 said was invalid, and that said children were heirs at law, and 
 that said wife and children, up to the year 1832-3, when Tor- 
 rey left the country, believed the above statements of said L. 
 and T. ; and that said L. and T. induced said widow toconvey 
 
 4 
 
 her interest in said farm, by telling her that such conveyance 
 would not expose her to be turned off said farm, and that she 
 and her children should have possession thereof; and that said 
 widow made such conveyance, being ignorant of the effect 
 thereof, March 10th, 1832. That at same time, said Jesse A.
 
 CASES IN CHANCERY. 261 
 
 Hicks conveyed to said L. and T. his interest in said farm as Firstcircuit. 
 heir at law, of said Jesse, stating he would not, thereby, lose ^vaiion 
 possession thereof, till 1841; and that April 6, 1832, by sii?iilar xo/rey. 
 statements, L. and T. procured a deed from complainants, 
 Blanchard and wife, while the wife was a minor, of one-sixth 
 part of said farm; and that said L. and T. by the aforesaid re- 
 presentations induced Downer and wife (a minor) to convey 
 one-seventh of said farm to one Frazer, and then seized the 
 first opportunity to get a deed from Frazer to themselves. 
 
 The bill further states, that in 1832, said Torrey, as judge 
 of probate of Wayne county, appointed one Johnson guardi- 
 an of said Theodore and Adaline, and sooji after gave him li- 
 cense, on application, to sell the interests of said Theodore and 
 Adaline in snid farm; that said Johnson then sold and convey- 
 ed the same to one Sawyer, and said Sawyer to said Larned 
 and Torrey; that said sale was unnecessary and without con- 
 sideration, either from Sawyer or Larned and Torrey; that 
 Larned and Torrey procured the appointment of said Johnson, 
 and his deed to said Sawyer, solely to get title to the interests 
 of said minors. The bill adds, that Larned died in 1834, and 
 that his heirs since pretend that said Larned and Torrey leased 
 said farm to one Isaiah Walton, who had married said widow, 
 and that she held said farm under him; and charges, that if so, 
 said lease was without the consent of any of the complainants, 
 and in order to undermine them; and that said widow never 
 pretended to hold under said Isaiah, but only under said will; 
 that said Torrey and heirs of said Larned have turned said 
 complainants off from the farm, and that they have been there- 
 to restored; that they have since commenced and discontinued 
 two suits, and afterwards commenced a third suit to recover 
 possession of said farm. 
 
 The bill prays for a re-conveyance from Larned's heirs and 
 Torrey, of Iheir interest in said farm, and that the deeds to Lar- 
 ned and Torrey and Sawyer be cancelled, and for an injunc- 
 tion to stay defendants from proceeding under the forcible en- 
 try and detainer act, and from selling or effecting possession. 
 The defendant, Torrey, puts in his answer, which is sub-
 
 262 CASES IN CHANCERY. 
 
 Firstcircuit. gtantially the same with the answer of Sawyer and that of the 
 ^"^^2^ infants; which last defendants set forth some facts in addition 
 Torr^y. to thosc Stated in the answers of Torrey and Sawyer. 
 
 All said answers admit the seizein of Hicks in said farm, and 
 that he died and left such will and such children as is stated 
 in the bill, but express ignorance as to dates; submit whether 
 said Jesse's children were not seized in fee of said land, as 
 heirs at law, and were competent to convey it; and whether the 
 estates of said infant complainants were not subject to aliena- 
 tion, like those of all infants, by order of probate court; ad- 
 mits partnership of Earned and Torrey, from October, 1825, 
 to 1833, but say they had nothing to do with the estate of said 
 Jesse, and never made any representations to complainants, as 
 alledged in the bill; that the said Jesse A. Hicks first offered 
 his and his brother Andrew's share in said farm to Earned and 
 Torrey for $200, to pay for dcf'-nce of said Andrew against an 
 indictment; that afterwards said Jesse A. and his mother, urged 
 Earned and Torrey to buy h^'eT'share, and agreed to give imme- 
 diate possession, or to rent the farm at .$50 per year, and that 
 thev afterwards bought the shares of Blanchard and Downer. 
 All these purchases they made reluctantly and at the urgent so- 
 licitation of Jesse A. and his mother, and paic? $100 per share; 
 defendants deny that they told complainants their selling would 
 not make them liable to be turned off of said farm or lose pos- 
 session till the youngest was of age; defendants admit plain- 
 tiffs' statements as to the sale of tlie infants' sha,res, by order 
 of Torrey, as judge of probate, but deny all fraud or irregu- 
 larity or illegality in the same, and say full consideration was 
 paid for the same, and deny any connection of Earned and Tor- 
 rey with the proceedings relating to said sale, and deny all fraud 
 and all intent to commit fraud on the part of Sawyer in the 
 sale, and deny all fraud generally, and all intent to oppress or 
 harrass said plaintiffs in proceedings to obtain possession of 
 said farm, in 1836. 
 
 H. T. Backus, for complainants. 
 .T. M. Howard, for defendants.
 
 CASES IN CHANCERY. 263 
 
 The Chancellor. Whether the children of Jesse Hicks, First circuu. 
 deceased, the complainants in this case, take as heirs or devi- ^^^"^^ 
 
 ' _ Walton 
 
 sees, they take an estate in presenli, and whatever Interest they ^ "*• 
 have, it is competent for them to convey. The provision in 
 the will, that it should remain undivided, is not such a li- 
 mitation as would inhibit any one from conveying whatever 
 interest he possessed. Provisions in restraint of alienation, are 
 not to be favored. Whether any purchaser could enforce a 
 partition before the youngest child became of age, so lon^ as 
 either of the heirs, or devisees retained his interest, is a ques- 
 tion that does not arise in this case. The interests being then 
 alienable, it was within the jurisdiction of the judge of probate 
 to decree a sale of the right, title and interest of the two mi- 
 nors, Adaline and Theodore E. Hicks, upon a case being made, 
 upon the happening of which, the statute authorized the sale 
 of the lands of minors, for their support and maintenance. 
 
 The proceedings appear to have been regular. 
 
 The decree of the judge of probate stands of force, and not 
 appealed from. 
 
 It is too late, therefore, to interfere with the decree. As to 
 the sale and purchase in fact, by Earned and Torrey, Torrey 
 having been the judge of probate who granted the order, I have 
 had some doubt. But the case of Devaux vs. Fanning, 2 Johns. 
 Ch. R., 268, goes the full length of declaring such ,a sale void. 
 
 It is placed upon the ground of disability to purchase, ari- 
 sing from the office which the purchaser held. And the case 
 quoted by Chancellor Kent on that occasion, extends the disa- 
 bility to guardians, judicial officers, and all other persons who 
 in any respect, as agents, had a concern in the disposition and 
 sale of the property of others, whether the sale was pubUc or 
 private, judicial or otherwise. 
 
 What is the case here? The defendant, Torrey, acting as 
 judge of probate, having previously acquired certain portions 
 of this property, makes the order for the sale of the shares, of 
 these minor heirs. He becomes a joint purchaser through 
 Sawyer. 
 
 If there is any wisdom or justice in the rule, it seems to me
 
 264 CASES IN CHANCERY- 
 
 Firstcircuit. that this presents a very proper case for its application. With- 
 ^""^^"^^^ out attributing any intention to commit a . fraud, and there is 
 Torre- nothing from which to infer it in this case, it seems that there 
 can be no office or trust which would present stronger tempta- 
 tions for abuse, than that of the one occupied by Torrey, if 
 the real estates of minors could be directed to be sold and pur- 
 chased by the same individual. As to this portion of the case 
 then. I am disposed to follow the course pursued in the case of 
 Devaux vs. Fanning. As to the claim of Mrs. Blanchard and 
 Mrs. Downer, the daughters of the deceased, they are alleged 
 to have been minors at the time of the execution of the deed. 
 As the result, in this respect, must depend upon the establish- 
 ment of the fact of minority, an issue must be directed to try 
 that fact. The shares of the two minor children, Adaline and 
 Theodore E. Hicks, must be put up for sale, under the direc- 
 tion of the master, at the same price at which they were sold 
 to Earned and Torrey, as a minimum, if no more is offered, the 
 former sale to stand confirmed; if more is offered, the master 
 to proceed to sell the same; and upon being paid the con- 
 sideration, to execute a deed thereof to the purchaser, and to 
 bring the money arising from such sale, into court to abide the 
 further order of the court in the premises. As to the sales 
 made by the other complainants, there is no ground for the 
 interference of this court in the premises. 
 
 The injunction heretofore granted in this cause, to be dis- 
 solved.
 
 CASES IN CHANCERY. 265 
 
 Grahajvi and another vs. Elmore and another. 
 
 Where a solicitor has appeared in a cause, and a demurrer is fileil, signed by solicitors who ia4l. 
 have not appeared, the demurrer may be treated as willjoul si;;n;.turc and as a nullity. 
 
 But where the demurrer in such ciise, was trcateJ as a nulMy by the coniplainanls, and a de- (j^^imnj 
 fault was entered for want of an answer, and it appeared that the signature of the wrong vs. 
 
 solicitors was put to the demurrer by mistake, and that injustice would be done if the defen- 
 dant should not lie permitted to answer, the default was set aside oo terms. 
 
 Where there are joint defendants, upon a pro confesso obtained against one, the compUi'n.-nt 
 cannot, before the cause is at issoe or in readiness for hearing against the other, enter a final 
 decree and issue execution llicveon against the party against whom the bill has been takeu 
 as confessed, and leave the cause to proceed against the other defendant. 
 
 It is the uniform rule, that a final decree, or an interlocutory degree, which, in a great mea- 
 sure, decides the merits of the cause, cannot be pronounced until all the p iriies to the bill, 
 and all the parties in interest, are before the court. 
 
 This court will not adjudge upon a part of the case ; it will nnt make a final decree until the 
 case is properly presented, in such form as will enable the court to make u linul disposition 
 of the case, and do justice to all the parties. 
 
 Where a cause is in readiness for hearing against one defendant, and there is another defen- 
 dant as to whom the cause is not in readiness, the defendant who has appeared and an- 
 swered, cannot notice the cause lor hearing', but must move to dismiss the bill for want of 
 prosecution. 
 
 A decree hy default may be set aside, on motion, and the court decides the question on motion, 
 where the facts appear, and there is nothing to dispute about but the law of the court. 
 
 The bill in this case, charged that the dcfendent, William ^^^rchio. 
 H. Elmore, had obtained goods of the complainants, who arc 
 merchants in New York, to the amount of about $600, (but 
 did not otherwise describe the goods,) on the credit of one 
 Frederick W. H. Elmore, by representing to the complainants 
 that he was the agent of F. W, H. Elmore to purchase goods for 
 him on a credit; that this representation as to the agency, was 
 entirely false, and that William H. Elmore purchased these 
 goods, on this fradulent representation, for his own benefit, 
 and that he executed to the complainants two notes for about 
 '$300, each, subscribed with the name of F. W. H. Elmore, in 
 his assumed capacity as agent; that after these goods were ob- 
 tained, they were forwarded to Detroit, where William H. 
 Elmore, for some time, carried on mercantile business un- 
 der the name of F. W. H. Elmore; that subsequently, an 
 assignment of this storeof gODJs was made by an instrument 
 
 Vor. T. , .'H
 
 266 CASES IN CHANCERY. 
 
 Firstcircuit. jn vvritinfT, simied F. W H, Elmore, bv W. H. Elmore, his 
 ^ ."^^ attorney, to Hicks, and \u which wus also, a covenant that it 
 
 Graham j ■> . j 
 
 Elmore, passcd all right and title of W. H. Elmore, to the goods. The 
 bill charged that when this assignment was made, Hicks had 
 knowledge of the fraud of Elmore in obtaining complainants' 
 goods; and contained also, a charge in relation to the assign- 
 ment of the goods in the store, in the following terms: 
 "among which said merchandize, your complainants' charge 
 was included; the merchandize, so as aforesaid, purchased of 
 your complainants, in the portion of them which remained un- 
 disposed of by the said William H. Elmore, but which particu- 
 lar part or portion of the same, complainants were ignorant. 
 
 The bill further charged, that complainants parted with their 
 goods in the confidence in the truth of this representation; 
 that thev did not observe the fraud until after the notes were 
 due and until after they had demanded payment of them at 
 the store where William H. Elmore had traded; that after dis- 
 covering the fraud, they demanded a return of the goods of 
 Hicks and Elmore, or the unsold portion of them, which ihey 
 refused to return; that complainant had commenced no legal 
 proceedings against defendants, except the filing of this bill. 
 
 The first prayer of the bill was, that defendants might an- 
 swer, the defendant Hicks, under oath, but the defendant El- 
 more, without oath, from an inspection of the inventory, in- 
 voices and books,U'hat goods were obtained from complainant 
 and what portion of them were assigned to defendant Hicks; 
 what portion of them were sold by William H. Elmore, be- 
 fore the assignment, and what portion by Hicks, since the as- 
 signment, and for what; that a receiver, with the usual powers, 
 might be appointed, of complainants' goods in the hands of de- 
 fendants, or either of them, and that the unsold portion of 
 them be delivered to the complainants; that Elmore be liable 
 for the interest of the whole goods, to the time of the assign- 
 ment to Hicks, and for the amount of goods sold by him; that 
 both defendants, or either of them, account for the goods sold 
 by Hicks, since the assignment, and the interest upon the un- 
 sold portion of them since the assignment, and be personally 
 liable therefor; that defendants be enjoined from assigning or
 
 CASES IN CHANCERY. 267 
 
 disposing of the goods or their proceeds, and for such other Firstcircmt. 
 and further relief herein, as the court may order. Graiu.m 
 
 Or secondly, that defendants nnight answer and be enjoined Eimore. 
 as aforesaid; that they be decreed to return the unsold por- 
 tion of the goods to complainants, and to account and be per- 
 sonally liable, as aforesaid, and for complainants' costs. The 
 complainants prayed for general relief. Their prayers were 
 all in the disjunctive. 
 
 The bill was taken, pro confesso, and after the cause had novtso. 
 been set down on the orders pro confesso, for a hearing and 
 notice for a final decree, H. N. Walker for defendant, Hicks, 
 applied on affidavit to the chancellor for leave to withdraw his 
 demurrer, to have the order, pro confesso, against him opened, 
 and leave to answei-. The affidavit stated that previous to the 
 entry of the default, H. N. Walker gave notice of retainer for 
 Hicks, and that a demurrer had been filed on the part of Hicks, 
 and that by mistake the nan^e of the firm of Bates, Walker & 
 Douglass was signed to the demurrer; that complainants coun- 
 sel had treated the demurer as a nullity on that account and 
 had entered the default. The chancellor granted an order that 
 the complainants show cause before him at his chambers, why 
 the demurrer should not be withdrawn; the order, pro confes- 
 so, opened and defendant, Hicks, have leave to answer; and 
 that defendants solicitor serve on the complainants solicitor, 
 the affidavit of merits; the answer prepared to be filed and a 
 copy of the order to show cause at least four days before the 
 time of hearing. 
 
 •e* 
 
 B. F. Cooper, for complainants. Read an affidavit, from 
 which it appeared that on entering the order, pro confesso, the 
 complainants had served a notice upon the defendants solici- 
 tor, of the entry of such order, and offered to open the same 
 without costs, provided a full and sufficient answer were ser- 
 ved before the first day of the term, for which the cause had 
 been set down for a hearing on the orders, pro confesso; that 
 no answer had been filed and that two special terms had elaps- 
 ed since the entry of the orders, pro confesso; and that de-
 
 268 €ASES IN CHANCERY. 
 
 FirstCircuit. fendants had taken no previous steps in the case, and insisted 
 „ , 1. That the application of the defendant was now too late. 
 
 Graham r i^ 
 
 Elmore. ^ Joku. C/i., 242; 4 PoJge, 288, 439. 
 
 2. That the affidavit of merits was not sufficiently full 
 and gave no sufficient excuse for the delay; that the answer 
 was exceptionable for insufficienc}'; he examined the w^hole 
 case upon the bill and answer served, and insisted on the au- 
 thority of the decision in 6 Paige, 371; 5 lb., 164; 1 Hnffrnan, 
 551, 7; ihat the order, pro confesso, should not be opened, as 
 from the answer presented it appeared that the defendant, al- 
 though attempting to interpose, the defence of a bona tide pur- 
 chaser, without notice, had nevertheless admitted and shown 
 such a knowledge of facts and circumstances relating to the 
 fraud as charged, to put him on inquiry and to charge him with 
 constructive notice of the fraud; that no injustice, therefore, 
 would be done to the defendant by refusing this motion, but 
 injustice would be done to the complainant if it were granted. 
 
 3. That the opening of the order is a matter resting in the 
 sound discretion of the court, who are to see that no injustice 
 is done. If it be now opened, the defendants should be requi- 
 red to pay all costs of the suit subsequent to the proceedings 
 to take the order, pro confesso, and the costs of the motion. 
 They should put in a sufficient answer and submit to such equi- 
 table terms as the court may impose, to expedite the cause, and 
 to ascertain the facts of the case. In this case, the defendants 
 should, as equitable terms he required to stipulate, that the 
 complainants under the issue, may if they shall so elect, exa- 
 mine the defendant, Elmore, as a witness, without a waiver of 
 any liability to them, and if complainants shall so elect, they 
 mav themselves also be examined as witnesses in the cause, 
 and that a commission may be taken out to obtain their testimo- 
 ny. The tendency of chancery practice in modern times, is to 
 let in evidence from all quarters to satisfy the conscience of 
 the court. 
 
 On a refei'ence to account, and in other causes referred to a 
 master, it is every day's practice to examine both the com- 
 plainants and defendants. In England when a feigned issue
 
 vs. 
 Eluioie. 
 
 CASES IN CHANCERY. 269 
 
 is awarded, (a proceeding which rests in the sound discretion Firsicircuu. 
 of the court.) it orders the parties to be examined before the ^ ^ 
 
 '' ' Graham 
 
 jury, and it is assigned as the reason, that the parties are not 
 witnesses for themselves, but for the court, which is presumed 
 to be able to judge both of the «redibility and the competency 
 of the witnesses. 1 John. Ch., 631; 3 Paige, 407; 1 lb., 4.30. 
 As to the examination of parties 4 Mad. R., 236; 1 Swan's, 
 39; Greskys Eq. E., 241-4; 393-5. 
 
 H. N. Walker, for defendant, cited 3 Chit. Gen. Pr., 525; 
 
 7 Pa/o-e, 370; 6 lb., 371; insisted that the demurer was regular 
 and a valid proceeding in the cause until set aside. That if 
 the demurrer were irregular he should be allowed to answer 
 on terms. 
 
 The Chancellor. The demurrer having been signed by 
 solicitors, whose appearance had not been entered in this case, 
 might, where another solicitor had appeared for this defend- 
 ant, be treated as without signature, and as a nullity. 3 Chit- 
 ty's Gen. Prac, 524. 
 
 But the demurrer having been filed in this form by mistake, 
 the court w'ould relieve the party from the consequence, if sat- 
 isfied that injustice would be done, if the party should not be 
 permitted to answer. 
 
 The answer discloses, first, that, as defendant, Hicks, be- 
 lieves, W. H. Elmore was authorized to purchase the goods in 
 the name of F. W. H. Elmore. If this be true, no fraud was 
 committed. Second, that he purchased the goods without any 
 knowledge of the complainants' claim. ( See Mowry vs. Walsh, 
 
 8 Cowen R., 238.) 
 The answer further discloses such circumstances, in relation 
 
 to the knowledge of F. W, H. Elmore of the manner in which 
 the business was conducted, as must, in all probability, establish 
 his liability, if any doubt existed on that subject. 
 
 The circumstance of the defendant, Hicks, having taken a 
 separate guaranty of W. H. Elmore, is urged as strong evi- 
 dence of fraud. It may, perhaps, lead to a conjecture, that 
 Hicks was suspicious that W. H. Elmore had some individual
 
 270 CASES IN CHANCERY. 
 
 Firsi Circuit, intcrcst ID the property; but, accompanied as it is, by the posi- 
 '^"^f'y"^^ tive denial of Hicks, of any knowledorc of the complainants' 
 Elmore, claims, and, also, the statement in his answer, that, according 
 to his knowledge and belief, the goods were really the proper- 
 ly of F. W. H. Elmore, cannot be regarded as such a badge 
 of fraud, as would render the sale to him fraudulent and void. 
 
 The answer is objected to, as not being full and perfect. 
 The rule laid down in Hunt vs. Wallace, 6 Paige R., 377, and 
 which has before been recognized in this court, in the case of 
 the Bank of Michigan vs. Williams, (ante 219,) is, that the de- 
 fendant must either furnish the answer which he proposes to put 
 in, or state his defence so fully in his affidavit, that the court 
 may see that injustice would probably be done, if the order, 
 taking the bill as confessed, is permitted to stand. 
 
 The court should require a full answer, and, if satisfied that 
 the answer was intentionally evasive, would refuse to set aside 
 the order. 
 
 Such is not the case here. The answer discloses sufficient 
 to show, that injustice would probably be done, if the order is 
 permitted to stand. Should the court undertake to look into 
 a further or amended answer, it would involve a re-examina- 
 tion of the papers, which may as well be done by a master. 
 Besides, the court is not fully satisfied that the answer will be 
 found insufficient; but, as the court is inclined to ihink the com- 
 plainant may be entitled to a further discovery in some particu- 
 lars, the defendant should be compelled to answer such excep- 
 tions, as may be allowed, promptly. 
 
 The order, taking the bill as confessed, must be set aside, 
 upon payment of costs of entering the order, and of this mo- 
 tion, and the defendant's undertaking to answer such excep- 
 tions as may be allowed by the master, within five days after 
 the same may be filed, and upon stipulating that the complain- 
 ants may be examined as to the particular goods sold to El- 
 more, saving all exceptions, except as to the competency of re- 
 ceiving such testimony.
 
 CASES IN CHANCERY. 1371 
 
 After the order of the chancellor, directing the opening of First circuit, 
 the order, pro c..nfesso, entei'ed against Hicks, and after Hicks ^^"f^'^ll^^ 
 had filed and served a copy of his answer, denying the fraud ^i"^^^^ 
 charged against Elmore, and setting up the defence of a bona 
 fide purchaser, without notice, &c., 
 
 B. F. Cooper, for complainants, moved, ex parte, on the or- Decembers, 
 der, pro confesso, against Elmore, for want of appearance, for a 
 final decree. Cited 1 Smithes Cli. Prac, G4, 174-5. 
 
 No person appearing for defendant, Elmore, the complain- 
 ants took their final decree, ex parte, against Elmore, for the 
 full amount claimed in the bill, and costs. 
 
 H. N. Walker gave notice of retainer for defendant EI- Febroaryn. 
 more, and moved (on the affidavit of Elmore, of irregularities, 
 &c.,) for an order for complainants to show cause why the 
 final decree entered December 8, against Elmore, should not 
 be set aside for irregularity. The chancellor granted the or- 
 der to show cause. 
 
 B. F. Cooper, for complainants, showed cause. February 23. 
 
 I. The decree in this cause cannot be set aside on the ground 
 of the insufficiency of the papers on which the motion is foun- 
 ded. 
 
 1. Because after the entry of an order, pro confesso, it is a 
 general rule, that it cannot be set aside without a production 
 of the answer intended to be filed. The exception in the 
 books was in the case of a non resident, and then the motion 
 was made before enrolment. 5 Paige, 164; 6 Paige, 377; 
 The last case was before decree entered. 
 
 2. After the enrolment of the decree, the rule is now believ- 
 ed to be universal, that the application to set it aside must be 
 on the production of the sworn answer proposed to be filed 
 with a full affidavit of merits. 1 Hnffm. Pr., 551; 1 Johns. Ch., 
 541, 631; 1 Paige, 430; 3 lb., 407; 2 Ves. S^ Beam., 184; 3 
 Johns. Ch., 424. 
 
 II. If the papers on which the motion is founded, be not in- 
 sufficient in their character, they are too defective to allow 
 the relief sought for by the defendant.
 
 272 CASES IN CHANCERY. 
 
 Firstcircuit, 1. The paper served as an affidavit^ is in form, a petition. 
 '^'fr^^^'^^ Petitions must always be sworn to, and an exact copy with 
 
 Graham •' ' ^ ■' 
 
 Elmore, the jurat, scrved. 1 Hopks., 101; 3 P<-«'|-e, 280. 
 
 2. If the paper is an affidavit, an exact copy, including the 
 jurat, should be served; it should be governed by the rules re- 
 lating to equity pleadings under oath. 1 Hojjks., 101; 3 Paige, 
 280. 
 
 3. It is entitled in the cause of complainant vs. Elmore and 
 Hicks. It asks for relief in two causes, viz: complainant vs. 
 Hicks and Elmore, and complainant vs. Elmore. This is en- 
 tirely irregular. The relief sought for, should have been con- 
 fined to one cause, or the papers should have been entitled in 
 both causes, or there should have been two sets of papers, and 
 two motions. No indictment would lie on this affidavit, for 
 any false swearing as to matters in the case of Elmore, alone. 
 2 Cowen, 509; Graham^ s Pr., 2d Ed., 678. The order staying 
 the examinalion of the defendant, is wholly irregular, having 
 been granted without any papers being served in the cause, to 
 warrant it, 
 
 4. The notice for this motion, is signed H. N. Walker, who 
 is only solicitor in the case of Hicks and Elmore, and is enti- 
 tled in that cause alone. Vide complainants' affidavit. It dif- 
 fers from the order to show cause. The notice rests upon ir- 
 regularity alone. 
 
 5. The order to show cause, is entered on motion of Doug- 
 lass and Walker, who are not solicitors in the cause in which 
 the papers and notice of motion is entitled. The order, as en- 
 tered, is irregular, and if not a nullity, should be vacated. 
 None, save the solicitors in a cause, can make motions therein. 
 Hopks., 369. 
 
 III. The decree must be set aside for the want of proper 
 evidence, that defendant, Elmore, has a good and sufficient 
 defence. 
 
 1. The affidavit and petition, have none of the usual formula 
 of an affidavit of merits. 
 
 2. It does not directly state that defendant has merits, but 
 states it in such a manner as to leave it doubtful what he does 
 mean.
 
 CAJSES IN CHANCERY. 273 
 
 3. The affidavit mis-states the effect of Hick's answer; the First circuit, 
 answer realJy states that Hicks is a bona fide purchaser, with- "■^^■''^^ 
 out notice; it alledges that he knew nothing of the representa- " 
 
 Elmore. 
 
 tions made to complaniants, but believes Elmore had autho- 
 rity. 
 
 4. Defendants have no defence under this answer, as the 
 fradulent representations are not in issue. It is a defence, in- 
 dependent of them, and good, whether th ^y were made or not. 
 The defence arises from a distinct mailer, and subsequent to 
 Elmore's fraud. 
 
 5. The aiHdavit shows that Elmore's neglect to appear and 
 answer, as required by the or.Ji r and | raciice of the court, 
 was the result of ddiberation and design — a mode of dt fence, 
 selected as well calculated to embarrass complainants, as a re- 
 gular defence, according to the rules and orders of the court. 
 
 G. It appears that this was done by the advice of counsel. 
 Hicks, it seems by his dcfencj, is to defend Elmoi-e, and Elmore \ 
 to be saved the expenses of a solicitor. Elmore is to take the 
 chances of successful defence by Hicks, and get rid of the 
 debt, and the trouble of litigation and iis costs. If Hicks fails, 
 at the end of a protracted liligaiiou, then Elm we seems to sup- 
 pose he may come in, renew the fight, and take the chances of 
 war. In the meantime, these two complainants are to stand, and 
 see these two defendants use up ih.ir goods, without paying for 
 them, and encounter the delays and losses and vexations of 
 litigation. Will a court of equity listen to an affidavit of such 
 a character as this 1 It would be a stain on the administration 
 of justice. 
 
 IV. The cases of opening decrees are all limited to the open- 
 ing the enrolment. After creditor's bill is filed, no such appli- 
 cation has been or should be granted; G Paige, 254. The affi- 
 davit of complainants shows that the order to answer is nearly 
 out in the creditor's bill. The order to stay proceedings and 
 show cause, is served after defendant is on his examination to 
 discover his property. After taking the chances of the first 
 suit, he has taken all the chances of the second, to the time 
 when he is about to be compelled to discover his property. If 
 this motion be granted, its effects in other suits will be most 
 
 Vol. I. 35
 
 274 CASES IN CHANCERY. 
 
 Firetcircuii. (Jisastrous. Defendants will lie by until called to answer or 
 Graham djscover, when they will thus seek to come in, after a great 
 Etoore. lapse of time. In the meantime, their property will be either 
 fairly or fraudulently disposed of, and the coni}^ lainants will be 
 thrown back to the filing of the bill, to fight a defendant who'has 
 thus managed to delay his proceedings and discover his 
 strength. 
 
 V. If the decree, pro confess©, can be set aside after filing a 
 creditor's bill, there is no sufficient ground for it shown on this 
 application, either in the complainant's mode of proceeding, or 
 in the merits disclosed by the defendant's affidavit. 
 
 It is objected, first: Tha'. the affidavit shows execution put in 
 the sheriff's hands on the return day. Affidavit of complainants 
 denies it; it was some days before the return. If it were not, no 
 collusion is charged by defendants; without this charge, the re- 
 turnof the sheriff cannot be impeached. 2 Paige, 408. 
 
 It is objected, second: That the decree against Elmore was 
 entered up while the cause was not even at issue against Hicks; 
 answer, there is a decree, pro confesso, against Hicks, not yet 
 opened. 
 
 Answer 2. That bill for fraud is like an action in the case 
 at law. for a tort. There one defendant may suffer judgment 
 by default, another may give a cognovit; one may be found 
 not guilty by verdict, and the other guilty; in such case, the 
 tort is joint and several. So in this bill for fraud; there 
 may be an order, pro confesso, against one defendant, and 
 a decree while the cause may proceed against the other, who 
 may have a decree in his favor. Smitli's pr., 174-5; 2 Paige, 
 102; 7 Jo/,ns. Ch., 194; this bill is in substance, an action on the 
 case. Why wait, after an admission, by Elmore, of the fraud? 
 7 Paige, 448; 1 Peters, 80. 
 
 VI. U cither of the two last mentioned grounds are suffi- 
 cient to set aside a decree after enrolment, it can only be on a 
 bill of review, or an appeal. If there is error, the error is 
 one of law. Cooper^ s pi. , 88-9, 90. 
 
 VII. If the deci'ee is set asiJe, it should be on the terms of 
 paying all the costs of both suits aad of this motion. 1 Johns. 
 Ch., 541, 631; 1 Paige, 430; 3 lb., 407.
 
 CASES IN CHANCERY. 275 
 
 The affidavit nnd examination of complainants show, that F'rsicircuii. 
 during defc idanl's delay in answering, he has appropriated F. Graham 
 W. H. Ehnore's firoperty in such a Wuy, that if the affidavit Eimorc. 
 is true, complainants can get nothing of F. W. H. Elmore. 
 This is as effectually preventing the payment of complainant's 
 debt, as if a witness had died, as in 1 Johns. Ch., 541. 
 
 VJII. The complainants are entitled to the costs of this mo- 
 tion, and the court may give interleventory costs, as for a con- 
 tempt of court, to be ascertained in their amount by the couit, 
 notwithstanding the act of February 10, 1841, (relating to 
 fees.) If this motion is made fur irregularity, it is too late, 
 4 Paige, 288; Grakam'spr., (2 ed.,) 081, 748; 2 Jac. law diet., 51. 
 
 H. N. Walker, for Elmoi'c. 
 
 1. The defence of one party avails his co-defendant, if the 
 cause depends upon the same facts. 1 Hoff. Pr., 554; 10 John 
 Rep., 534. 
 
 2. A cause cannot be heard against several defendants in 
 the absence of the rest, although no decree be asked against 
 them. The bill must first be formally dismissed as to them. 4 
 Bridgman's Digest, 283; 2 Paige R., 572; 1 Peter's Digest, 441; 
 1 Paige R., 548, 549; 5 Paige R., 638; 2 John. Ch. R., 614. 
 
 Thk Chancellor. The principal question involved in this 
 case is, whether, where there are joint defendants, upon a pro 
 confcsso being obtained against one defendant, and before the 
 cause is at issue, or in readiness for a hearing against the other 
 defendant, the complainant may enter a final decree and issue 
 execution against the party against whom the bdl has been 
 taken as confessed, and leave the cause to proceed against the 
 other defendant or defendants. After a very careful examina- 
 tion, I have been unable to find any case in which this ques- 
 tion has been distinctly presented. It is the uniform rule, that 
 a final decree, or an interlocutory decree, which in a great 
 measure deciles the merits of the cause, cannot be pronounced 
 until all the parlies t > the bill, and all the parties in interest are 
 before the court. 5 Wheaton, 542. 
 
 This rule is usually applied to cases where the complainant
 
 Graham 
 vs. 
 
 Elmore. 
 
 276 CASES IN CHANCERY. 
 
 First cirruit. j^as HOt made proper parties to his bill, or where the proper 
 parlies having betn made to ihe bill, the complainant has not 
 taken ihc necessary sieps to bring them before the court; but 
 does not the reason of the rule apply to a case hke the present; 
 the party who has answered in this cause, although as to that 
 part of the bill which relates to Elmore alone, he denies the 
 allegations upon his knowledge and belief, has put in issue the 
 whole merits of the bill. 
 
 Before the cause is ready for a hearing, the complainant en- 
 ters his final decree against the defendant who has not appear- 
 ed, and issues his execution thereon for the full amount claimed, 
 leaving the cause to proceed against the other defendant, be- 
 fore the parties, or rather before the merits of the cause are 
 before the court, so as to enable it to make a final decree upon 
 the whole case, when it may perhaps become the duty of the 
 court, upon the hearing, to declare that the complainants have 
 no equity whatever. I think the rule above stated, goes to the 
 extent, that the court will not adjudge upon a part of the case 
 in this way. It will not make a final decree, until the cause is 
 properly presented, in such a form as wi!l enable the court to 
 make a final disposition of the cause, and do justice to all par- 
 ties to the suit. In 2 P'lige, 572, C/'/y Bank vs. Bangs, it is 
 decided, that where the defendants, or any of them, deny the 
 allegations in the complainant's hill, or set up distinct facts in 
 bar of his right to file the bill, he must file a rejilication, give 
 rules to produce witnesses, and close the proofs before the 
 cause is heard. It is settled, that although a cause may be 
 in readiness for a hearing against one defendant, and when 
 other defendants as to whom the cause is not in readiness, the 
 defendant who has appeared and answered cannot notice the 
 cause for a hearing, but must move to dismiss the bill for want 
 of prosecution. Vennyb'.d vs. Odell, 4 Paige, 422. This he 
 cannot do, if the cause is in such a situation that it may be 
 noticed for a hearing by either party. This is confirmatory of 
 the rule, that the court will not grant a final decree, until the 
 cause is in readiness for a hearing as to all the parties. 
 
 It has been urged that the court cannot interfere in this way,
 
 CASES IN CHANCERY. 277 
 
 but thnt the defendant must be left to his appeal, or a bill of ^'^^'^'''■'="''- 
 review. And this brings us to another objection to this form oruU:-m 
 of proceeding. I do not see how an appeal can be taken in Eimore. 
 this stage of the cause. The case is still pending and proceed- , 
 ing in this court, as against one defendant, while it may be 
 proceeding in the appellate court, upon appeal, against the 
 other defendant, if the appeal could be sustained by the supreme 
 court. It would render the practice and proceedings anoma- 
 lous and inconvenient, if this court were to pursue this course, 
 and render final decrees in succession, against several defend- 
 ants, in this way, as fast as the complainant should perfect 
 his proceedings against each of the several defendants. A de- 
 cree by default may be set aside on motion; 1 Ilojfmaii's Pi:, 
 419; and the court decides, on motion, where the facts appear, 
 and there is noting to dispute about but the law of the court. 
 lb., 420. 
 
 Some other questions were raised at the argument. It is 
 objected that the order to show cause was entered on motion 
 of Douglass and Walker, when H. N. Walker is the solicitor 
 of record. The papeis are signed and notices given by H. N. 
 Walker, the solicitor in the cause, and the order to show cause 
 being granted on motion of Douglass and Walker, is immate- 
 rial. The complainants could not been have misled, and the or- 
 der would have been valid, without the insertion ot the name of 
 any solicitor. The fact that the jurat annexed to the petition, 
 was not annexed to the copy served, would prevent its being 
 used as proof of the facts alledged in the petition, as the party 
 is bound by the copy served. But the motion is founded 
 upon the record and proceedings in the cause, as well as upon 
 petition, which disclose the facts in the same manner. The 
 objection that the papers being only entitled in the case of El- 
 more and Hicks, cannot be used in the case against Elmore 
 alone, is technically correct, and the order must be confined to 
 that case. But from the view I have taken, that the decree 
 taken against Elmore, in the case of Elmore and Hicks, was 
 irregularly entered, and must be set aside; it must follow^ t!iat 
 all proceedings founded upon that decree, must fall with it.
 
 278 CASES IN CHANCERY. 
 
 Firstcircuit. After the defendant has omitted to make his defence, as has 
 Grnham been the case here, I interfere in this way with reluctance. 
 Elmore. But the casc being presented, I am bound to settle the practice 
 of taking decrees against one of several defendants, in this 
 way, either in one way or the other, and of the inconvenience 
 and irregularity of this course of proceeding, I entertain no 
 doubt. The final decree entered, in this cause against Elmore, 
 must be set aside and vacated, leaving the order taking the bill 
 as confessed against him, of force, so that no obstacle may ex- 
 ist to taking a decree, whenever the cause shall be in readi- 
 ness, for a final disposition; or if the complainant shall so 
 elect, with leave to set aside the pro confcsso, and require an 
 answer. 
 
 Decree set aside.
 
 CASES IN CHANCERY. 279 
 
 Agnes McLean and others, vs. Jacob L, Barto^t and dhers. 
 
 Whether by section ihrce of the Ilcpealing acicoTiUained in the Revised Statutes, (R. S. 697,) First Circuit 
 it was intended to continue in force the provisions of the acts of limitation, repealed hy that 
 act where the time had " begun to run, " or whether the time prescribed in the Revised Stat- 
 utes was intended as the period at the expiration of which llie suits be barred, quare. 
 
 The statutes of limitations and lapse of time may be taken adtantage of on demurrer. 
 
 Where the action was not commenced for upwards of twenty years after the right of aclffln 
 accrued and no disability or excuse for the delay pretended, and no new discovery of facta 
 suggested, and both the person charged with committing the fraud, and hia grantee were dead^ 
 the Court refused to sustain the suit, by reason of the lapse of time, and held that the case 
 could not be aided by proof of facts which vferenot put in issue by the pleadings. 
 
 A Court of Equity will lend its aid to detect and redress a fraud, notwithstanding the lapde o 
 lime ; but when the fraud is discovered, the parlies must act upon that discovery within a rea. 
 sonable time. The party seeking redress should not wait until all those who were cognizaw^ 
 ol the transaction should have paid the debt of nature and tjniil no one was left to denj or 
 explain the allegations without giving any excuse for such delay. 
 
 The bill in this case stated that in 1816, Robert Smart, now de- 
 ceased, obtained a deed of conveyance of lots number 61 and 62 in 
 section three in the city of Detroit, representing himself to be the 
 Assignee of Catharine Bailey, the Assignee of John Murphy, the 
 Assignee of David McLean; lo whom the lots had been granted by 
 the Governor, and judges of the Territory of Michigan, acting as a 
 Land Board, but that the deed nraking said grant was not delivered^ 
 by the Governor and judges to said McLean. 
 
 The bill prayed for a conveyance of the lots to the ccmplainants, 
 the legal representatives of David McLean. 
 
 The defendants put in a general demurrer. 
 
 A. D. Fraser in support of the Demurrer. 
 
 First. Agnes McLean, the widow of David McLean, has no ap'- 
 
 parent interest in the controversy, nor any equity as against the de-' 
 
 fendants or any of them, and therefore a general Demurrer will lie 
 
 to the whole bill. 3 Paige 336. 
 
 Second. UndeV this Demurrer'we rely on the statute of limitations 
 Vol. I. 36
 
 280 CASES IN CHANCERY. 
 
 First Circuit, as a bar to any relief. "From the earliest ages, Courts of Equity 
 
 McLean " h^ve refused their aid to those who have for an unreasonable lengti^ 
 
 Ba/t'on. "of ^''""6 neglected to assert their claims, especially when the prop- 
 
 " erty in controversy has passed to subsequent purchasers. Although 
 
 ' statutes of limitations do not extend to suits in Chancery, yet Courts 
 
 ' ' of Equity will acknowledge their obligation. 6 Co7id. U. S. Rep' 
 
 44, 47, 55. 5 Peters, 470. 6 Id. 71. 
 
 The bar fj-om lapse of time need not be set up, by Demurrer, an- 
 swer or plea but may be suggested at the hearing. 1 Baldicin, 418 
 419. 
 
 The statute of limitations may be urged as a bar of the remedy in 
 the form of a Demurrer. 4 Wasli. 089 ; 3 P. Wnrs, 237 ; 2 Mad. 
 Ch. 246. 
 
 In 1 Peters 360, and 3 Peters 44, the Court say, " that the statute 
 " ought to receive such a construction as will effectuate the benefi- 
 " cial objects which it intended to accomplish ; the security of titles 
 " and the granting of possessions. "' 7 John C. R. 90 122. 
 
 And courts give effect to its regulations upon equitable titles. 5 
 Mason 112; 2 Jac. S^ Wal 137, 191; 1 Sell Sf Lef. 413, 
 428. 
 
 This suit should have been instituted within ten years from the 
 fifth of November, 1829. Laws 1833, page 408, 9. 
 
 Now if David McLean ever had any rights they accrued, as ap- 
 pears by the bill on the execution of the deed by the Governor and 
 judges to Smart, dated fifth November, 1816. No new right accrued 
 to the party subsequent to that time. 
 
 Third. It does not appear that McLean ever acquired title to the 
 property, for it is expressly stated that the deed was never delivered. 
 
 Fourth. It is not shown by the bill that McLean was entitled to a 
 deed for a lot in Detroit. Laics 1820, piage 14. 
 
 Backus &; Sea.max, contra. 
 
 First. A demurrer must express 'the several causes of demurrer. 
 Mitfords Pe. 3d A7n. Ed. page 213 ; Ordinance in Chy Ed. Beanies 
 77 and 175 ; Story's Eq. PL page 357 and 359^ sec 455 a7id 457 
 Equity. Draftsman, 4:19 to 425; Maddocks Ch. 1st Ed.page22Q. 
 
 Second. If a demurrer is general to the wholcbill as in this casej
 
 CASES IN CHANCERY. 281 
 
 and there is any part either as to the relief or the discovery to which '^'"' '^"■''"" 
 det'endant ought to answer, the demurrer being entire must be over McLean 
 ruled. Mi'fords PI. 2d Am Ed. 214. Barton. 
 
 Third. A general demurrer as contradistinguished from a special de- 
 murrer isademurror for want of equity. Slorij^s Eq. II jj 3.57, sec. 
 455. All other demurrers are called special demurrers, to distinguish 
 them from demurrers for want of equity, and the causes of demurrer 
 must be particularly assigned. 
 
 Though all demurrers to the whole hill are called in legal parlance 
 general demurrers, let them be ever so special in tlieir nature to dis- 
 tinguish them from j^rtial demurrers. Mitfords Eq. PI. I ij Jeremy, 
 214. Maddocks Ch. 226. 
 
 . Fourth. A demurrer for want of parties was put in, in the case of 
 Davculvs. Fanning 4 John, Ch. R. 201. and the cause of want of 
 parties, specially assigned, see also, rule 29 of this court. 
 
 Fifth. The deed executed by the Governor and judges, and their 
 assigning and designating the lots as lots to be deeded to McLean was 
 in pursuance of the statute of the United States, and of his assign- 
 ment to them, and also in full payment for his lot, and was there- 
 fore for a valuable consideration, and though not good inlaw for wanx 
 of delivery, was good in equity to pass an equitable title to the prem- 
 ises to McLean. Wadsworth vs. Wendell 5 John Ch. 224. 
 
 Sixth. We have alleged fraud on the part of Smart, and brought 
 notice of the fraud home to the defendants, which vitiates and renders 
 null and void the defendants title. Equity grants relief not only 
 against deeds, writings and solemn assurances, but also against judg, 
 ments, and decrees obtained by fraud and imposition. Reigal vs. 
 Wood, 1 J. C. R. 402 ; John Digest, j) 245; sec 729, decided by 
 Chan. Kent; and Bansleyvs. Poivell, 1 Vcs. 120, decided by Lord 
 Hardwick; and Heirs of Ware vs. Henry Brush, 1st McLean's Rep. 
 434 to 438. 
 
 Seventh. If the Laws of Michigan in 1816, as to married women 
 and widows were not more barbarous than even the common law of 
 ,1'^ngland as modified by the statute of Distributions, of Charles, Mrs. 
 McLean was entitled to a distributive share of her husbands estate, 
 including the property in question. See Tollers Laws of Ex'rs. 371.
 
 282 ' CASES IN CHANCERY. 
 
 First Circuit gy ^j^g ^j^^gj section of the ordinance of Congress of 1787 she is 
 McLean entitled to a distributive share of one third of her husband's personal 
 Barton, estate after paying debts, and a dower of one third of his real es- 
 tate. See iaws of 1833, page 23. 
 
 Eighth. The statute of limitations of November 6th, 1829, on 
 which the defendants counsel rely to bar our action in ten years, was 
 repealed April sixth, 1838. See Revised Statutes, page 693, 
 which repeal took effect Augu3t 31st, 1838, the second section of 
 the repealing act, R. S. page 697, substituted the Revised Statutes, 
 and the limitation therein provided, R. S. page 573, section one, we 
 come within the first section within the twenty-five years. 
 
 The defendants cannot bring this cause within any of the exceptions 
 to the repealing act, pages 574 and 575, sections 7 and 8, but we come 
 within the third section on page 697, or else under the old act of 
 1820 or some prior act. 
 
 We do not come within the saving clause of sec. 7, page 674 and 
 675, because our action was not barred on the 31st August, 1838, by 
 the act of Nov. 5th, 1829, 
 
 The eighth section of Revised Statutes page 575, does not subject 
 us to the act of November fil'th, 1829, because by the express terms 
 of that section, " all causes of action accruing previous to tlie thirty- 
 first day of August, 1838, shall be determined by the law under which 
 such right of action accrued," and our action accrued long prior 
 to the passage of the act of November, 1839, or else it did not occur 
 until the payment of the purchase money by Mrs. Campbell to Smart 
 in 1835 or 1836. 
 
 According to said 8th section R. S. page 575, I suppose our rights 
 must be decided according to the statutes in force when our cause of 
 action accrued, which must have'been when'Smart entered under his 
 deed, which bears date December 16th, 1816. He may not have en- 
 tered until some years afterwards ; when, does not appear. 
 
 In the State of Ohio by an oversight of the legislature, the statutes 
 of limitations did not embrace actions of debt on simple contract pre- 
 vious to the act of 1824, so that you can to this day, by the construc- 
 tion of their statute, sue on a promissory note, or for work and labor, 
 or goods sold previous to 1824 in an action of debt, and there
 
 CASES IN CHANCERY. 2fi3 
 
 is no statute to bar the action. Tapper vs. Tiipper 2d Ohio Eep. 389. First Cirmi, 
 {S. C. Ohio cond. Rep. Gl.'i 616.; Moiym, 
 
 v$. 
 
 The settled construction of statutes of limitation in Ohio is that no Banon. 
 statute shall apply to causes of action which accrued previous to its 
 passage. All sach acts shall be prospective only — and all actions 
 shall be barred only by the statutes in force at the time they accrued. 
 The case of Chalmandehj vs. Clinton 2d Jacols Sf Walker 191 
 and 192 was put expressly upon the statute of limitations of King 
 James — see Lord Redesdales opinion, latter part on page 192. We 
 do not deny the position that Courts of Equity will carry into effect 
 statutes of limitation (though they do not expressly apply to them) 
 in all cases where the statute would be a bar at law, if an action at 
 law was brought for the same subject matter. The decisions in 2nd 
 Jacobs Sf Wa/ker,19l and 192— 1 John Ch. Rep. 114: to 126—6 
 Cond U. S. Rep. 44, 47, and 55—5 Peters, 470; and 6th Petersll 
 Zd Peer WiUiams Cook vs. Amhain, are all put expressly upon the 
 ground of the statute of limitations, and that the statute would be a 
 bar to a recovery at law for the same subject matter. 
 
 A case cannot be found where mere lapse of time has been held a 
 bar in equity, unless the lapse of time has been so great that the stat- 
 ute of limitations could be pleaded at law for the same subject matter 
 or a court of law would presume an extinguishment of the claim. 
 Such was the express decision in 2>rd Peer WiUiams 287 ; and such 
 seems to have • been the grounds of the decision in all the cases, and 
 particularly that in 1th John Ch. Rep. 118 and 122. 
 
 In the absence of all explaniatory or rebutting testimony, even a court 
 of law will instruct a jury to presume a mortgage, judgment or bond, 
 paid after the lapse of twenty years, and will go so far in such cases, 
 after great lapse of time as to preserve a grant by deed or lease. 4 
 J. C. R, 7; Johnsons Dig. _p583..«ec. 174, 176, 177 and 180. Page 
 230 and 231, sec. 572,574, dSAand 586; Sup. to John Dig. p3ll, 
 sec. 160 and 164. 
 
 Ninth. If the statute were a clear bar, and could be pleaded as 
 such, it is possible the defendants might take advantage of it by de- 
 murrer ; but they can take advantage of mere lapse of time, not com- 
 ing within the statute of limitations only, on the hearing upon an-
 
 284 CASES IN CFIANCERY. 
 
 i-irst Circuit g^^p^ jjg evidence that the plaintiffs rights have been extinguished, by 
 Mt-r-eaii a conveyance, l^ Peters 152 — Mit fords Pi. hy Jeremy. 
 
 OS. 
 
 Baricn. The lapse ot' time being presumptive evidence of the extinguish- 
 ment of the plamtitTs claims. Seethe case of Livingston vs. Livings, 
 ton, 4 J. C. R. 287 ; Jolin Dig. 2Jage2''M, sec. 586. Such presump- 
 tive evidence plaintiffs have a right to rebut, which they would bo pre- 
 cluded from doing, if tlie lapse of time could be taken advantage of 
 on demurrer. The demurrer also admits the plaintiffs claims and 
 rights as stated in the bill ; and the defendants are guilty of the in_ 
 consistency of admitting the plaintiffs rights by the demurrer, and at 
 the same time insisting that the lapse of time is presumptive evidence 
 of an extinguishment of these very rights which are thus admitted. 
 Eraser in reply. 
 
 It is incontrovertible that the legislature by the provisions of the 
 Revised Statutes, intended to reserve to suitors the benefits of the stat- 
 utes of 1820 and 1829 and all tights accruing under them. Revised 
 Laws page 575, sec. 7 and 8; Laws of 1833, 571 sec. 6; Laius of 
 1833, 408 9. 
 
 A reference to the provisions in regard to personal actions clearly 
 manifest this intention. Rei-ised Laics, page 580, sec. 25, 27. 
 
 And this view is fortified by the fact that the Revised Slatutes are 
 positive in their operation upon this subject, except so far as the old 
 statutes are declared to be the goverening rule as to past cases. 
 
 In putting a construction upon the provisions of the Revised Stat- 
 utes, the court must compare all the parts of the statute, and the differ- 
 ent statutes in pari martina to ascertain the intention of the legisla- 
 ture. And even recur to the situation and history of the country to 
 ascertain the reason as well as the meaning of many of the provis- 
 ions of a statute law. 1 Peter Dig. 581, 579. 
 
 It was clearly competent for the legislature to pass the act of 1829 
 now relied upon, and its provisions do not conflict with any constitu- 
 tional provision, but on the contrary _, they are reasonable and proper, 
 expedient and just, and areTully sustained by the highest authorities. 
 8 Mass. 430 ; 2 Gallis. 141 ; 3 Peters, 290, 276 ; 5 Id., 464 ; 3 
 Id. 54.
 
 AlcLeari 
 
 vs. 
 Burlon. 
 
 CASES IN CHANCERY. 285 
 
 But independent of the statute of limitations which it is insisted, con- Firstcircmt 
 stitutes a perfect bar here, tiiis court will refuse its aid to those who 
 have for aii unreasonable length of lime neglected to assort their rights 
 especially when tbe property has passed to subsequent purchasers. 
 10 Whealoii, 152 ; 9 Peters, 41G. 
 
 " This court " will not antertain stale or antiquated demands, nor 
 encourage laches, and negligence. 1 Slory on EquHij, 503, and 
 Notes. 
 
 There is no time fixed when it operates in equity. Baldwin, 419; 
 2 Sumner, 212. 
 
 It appears by the bill that the deed was never delivered by the Go- 
 vernor and judges to the complainant's ancestor, (McLean,) and con- 
 sequently no title vested in him in his lifetime. 5 Mason, tiO ; 12 
 Wend., 107, 8; 6 Cojcen, G19, 
 
 The Chancellor. — This bill is filed to obtain the conveyance of 
 lots Nos. 61 and G2 in section 3 in the city of Detroit. 
 
 The bill alleges that the lots in question were granted to David 
 McLean by the Governor and judges of the then Territory of Mich- 
 igan, acting as a Lond Board ; but that the deed making said grant 
 was not delivered. 
 
 That Robert Smart, now deceased, in December 1816, obtained a 
 deed of conveyance of the lots in question, representing himself as 
 Assignee of Catharine Bailey, Assignee of John Murphy, Assignee 
 of said David McLean. 
 
 It denies ihat McLean ever made any such assignment, and that 
 the representations of said Smart to said Governor and judges were 
 made to defraud them and to defraud the complainants. The first 
 question raised under the demurrer is the statute of limitations. 
 
 The statute of the 5th November, 1829 required all actions of this 
 kind to be commenced within ten years from the passage of the act. 
 This act was repealed by the Revised Statutes, the repeal to take 
 effect on the 31st day of August, 1838. 
 
 The statute of the 15th May, 1820 required all suits of this char- 
 acter to be commenced within twenty years. The suit in this case 
 was commenced on the 14ih I\Iay, 1840. 
 
 The existing law, section 1st, part 3d, title 6, Revised Statutes, pro.
 
 286 CASES IN CHANCERY. 
 
 FirstCircuit. yj^jeg that " DO person shall commence an action for the recovery of 
 
 AicLeaa " ^"7 lands, nor make any entry thereupon unless within 20 years 
 
 Burioii. " after the right to make such entry, or bring such action first accrued 
 
 " or within twenty-five years after he or those from by or under whom 
 
 " he claims, shall have been seized or possessed of the premises, ex- 
 
 "cept as hereinafter provided," 
 
 But by the 8th section of the same statute, it is provided that "where 
 " the cause or right of action or entry shall have accrued before the 
 '• time when this chapter shall take efiect as law, the same shall not 
 "be affected by this chapter, but all such causes of actions shall be 
 " determined by the law, under which such right of action accrued." 
 The last section of the repealing act provides that " in any case 
 " where the limitation or period of time prescribed in any of the acts 
 " hereby repealed, for the acquiring an}- right or the barring any 
 • " remedy, or for any other purposes shall have begun to run, and the 
 "same or any similar limitation is prescribed in the Revised Statutes^ 
 " the time of limitation shall continue to run and shall have the like 
 " effect as if the whole period had begun and ended under the ope- 
 " ration of the Revised Statutes. " 
 
 Whether this section intended to continue in force the provisions of 
 the acts of limitation thereby repealed, where the time had "begun 
 to run, " or whether the time prescribed in the Revised Statutes was 
 intended as the period at the expiration of which the suits shall be 
 barred is perhaps doubtful. 
 
 What time of limitation sliall continue to run 1 I am inclined ta 
 the opinion from the whole of the provisions of the statutes, that the 
 intention of the legislature was to preserve the benefit of the statutes 
 of limitation, which were repealed. But whichever construciion may 
 be given will not from the view I have taken of the case, change the 
 result. 
 
 Whatever right David McLean possessed accrued in 1809. All of 
 his right and title, became vested in the present complaints, upon his 
 decease, and before the deed from the Governor and judges to Smart 
 in December, 1816. Their right of action then must have accrued 
 at that time. No new or other right has since accrued- 
 There is no allegation of any disability or excuse made or attemp- 
 ted for the delay.
 
 CASES IN CHANCERY. UB7 
 
 The second ground urged upon the hearing is the presumption ari- F"«"tcircuir, 
 sing from the lapse of time. McLean 
 
 There seems to be now no doubt that the statute of limitations may Banon. 
 be taken advantage of, upon demurrer ; but vvhether the same rule 
 holds in this case, there seems to have been much diversity of opinion. 
 One of the earliest cases upon the subject is the case of Delorainc 
 vs. Brotvn, 3 Browii's, C. R., 635. The authorities are there, collec- 
 ted in a note to the case made by Lord Reddesdale. The same learned 
 Judge afterwards in commenting on this case in Hoveden vs. Lord 
 Annesleij, 2 Schoales Sf Lefroy, 037, says: " In the case of Lord 
 "Deloraine rs. Brown, an attempt was made to take advantage of 
 " the length of time by demurrer. The decision of that case as re- 
 '* ported by Brown, does not convey much satisfaction to my mind ; 
 '* and perhapif the note which follows will account for the judgement 
 "of the court being delivered some what in a hurry. 
 
 *'The first judgment as reported is hardly intelligible, and then there 
 
 " is an explanation given next day, it is however, rather contrary to 
 
 ♦* what Lord Kenyon determined in Beckford vs. Close, which is ci- 
 
 *' ted in that case. This arose perhaps from Lord Thurlows not hav- ' 
 
 "ing, under the peculiar circumstances in which he stood, sufficiently 
 
 "considered that this was matter of the law of a Court of Equity. 
 
 " Lord Kenyon held that a demurrer to a bill, because it did not show 
 
 " a good title to redemption within twenty years, was a good demur- 
 
 " rer. Why ? because it was a rule of the court that no redemption 
 
 " should be allowed after twenty years, and therefore the party 
 
 " should be put to bring his case within that rule. Lord Thurlows opin- 
 
 ♦♦ ion was given in a hurry : and many cases were then pending, in 
 
 "which much injury might have arisen to the parties if the judg- 
 
 " ments had not then been given ; but it seems to me that Lord Ken- 
 
 " yen's opinion was perfectly tenable on Lord Thurlow's own quali- 
 
 " fication ; that is, that when a party does not by his bill, bring him- 
 
 "self within the rule of the court, the other party may by demurrer 
 
 " demand judgment, whether he ought to be compelled to answer. 
 
 " If the case of the plaintiff as stated in the bill will not entitle him 
 
 " to a decree, the judgment of the court may be required by demur- 
 
 " rer whether the defendant ought to be compelled to answer the bill ; 
 
 '* that I take to be the matter of the law of a Court of Equity to be de- 
 VoL. I. 37
 
 28S CASES IN CHANCERY. 
 
 First Circuit, u cided according to its rules and principles. However it is clear 
 "that in this case of Lord Deloraine vs. Brown, Lord Thurlow was 
 
 McLean 
 
 Ba/ton ■' anxious that his overruling the demurrer should not be considered as 
 "deciding upon the case; and the cause never came on again, 
 ♦' Lord Deloraine being advised that the length of time was a bar. " 
 
 In the case of Chalmondeley vs. Clinton, 11 Cond. Eng. C. Rep. 
 68, it is held that where there has been an adverse possession not ac- 
 counted for by some disability for more than twenty years, a Court 
 of Equity ought not to interfere. 
 
 In the case of Tuttle vs. Willson, 1 Ohio Rep. 26, it is said, that, 
 •'it is indeed, well settled, that a statute of limitations, will now be 
 *» applied, in Equity where it would bar the claim at law. 1 Story^s 
 " Eq. 502 ; 2 Story's Eq., 735 ; 6 Peters, 66. The complainant 
 "filed her petition in 1838, a period of twenty-three years having 
 •'elapsed after her cause of action arose, and in our view, the stat- 
 "ute is a bar to her claim. But if it were otherwise, the staleness 
 «' of the demand would be fatal to its farther prosecution, and inde- 
 *• pendentof the act of limitation, affords a complete defence. Where 
 '" rights are unreasonably neglected, the presumption is legitimate, of 
 " an intention to abandon them. *'Nothing," says Lord Camden in 
 "Smith vs. Clay, 3 Brown's, Ch. Rep., 640, "can call forth this 
 '* court into activity, but conscience, good faith and reasonable dili- 
 ^'' gence : where these are wanting the court is passive, and doesnoth" 
 '♦ ing. Laches and neglect are always discountenanced, and there- 
 " fore, from the beginning of this jurisdiction, there was always a 
 •' limitation of suit in this court. 
 
 "This language of Lord Camden is cited with approbation by the 
 •' Supreme Court of the United Stales, 9 Peters, 416. In 7 Ohio, 
 •' Rep. 62, the same principle is also recognized by this court. " 
 
 Demurrers have been uniformly allowed to bills to redeem after the 
 lapse of 20 years. 
 
 In the case of Lord Annesley vs. Hoveden, before mentioned, Lord 
 Reddesdale says : 
 
 " This brings me to consider the case finally in another point of 
 ♦ view, supposing the plaintiff might have had relief on the ground 
 ,«of fraud, if he had pursued his title with due diligence, the answer 
 •♦ is, it appears that the alleged fraud was discovered by the party at
 
 CASES IN CHANCERY. 289 
 
 " least so long ago, that in 1735 a bill was filed, imputing fraud, and Fim circuit. 
 
 ♦'impeaching the transaction on the same ground. Therefore, the McLean 
 
 " position that fraud, is not within the statute, because it is a secret Bmon. 
 
 « thin"-, which cannot be discovered, is not applicable to this case ; 
 
 " for the fraud imputed in this case is represented in the bill of 1735; 
 
 « that is, it is there stated that the release was a release which the 
 
 " party conceived he had a right to impeach, on the ground of fraud, 
 
 *'and for that purpose to obtain from the opposite party a discovery 
 
 "of all the facts and circumstances demonstrating the fraud. This 
 
 " was known to the person claiming in 1735. Therefore, whatever 
 
 ♦' right of action might have accrued on discovering any particulars 
 
 *'of the fraud different from what were apparent in 1726, must beta- 
 
 ««ken to have accrued in 1735 ; but was not pursued in 1794, a peri- 
 
 «• od of near sixty years after the first bill filed. 1 hold it utterly im- 
 
 «• possible for the court to act in such a case. A Court of Equity 
 
 «» is not to impeach a transaction on the ground of fraud, where the 
 
 «« fact of the alleged fraud, was within the knowledge of the party 
 
 »« sixty years before. On the contrary, I think the rule has been so 
 
 *« laid down, that every right of action in equity that accrues to the 
 
 "party, whatever it may be, must be acted upon at the utmost within 
 
 •» twenty years. " 
 
 That the presumption arising from lapse of time, may be taken ad- 
 vantage of upon demurrer, is settled also in the case of Livingston vs 
 Livingston, 4 J. C. R. 299; there Chancellor Kent says : " The differ- 
 •= ence between this case and the one decided yesterday, is very ma- 
 '' terial ; here is a demurrer to the whole bill, and the great lapse of 
 "time taken in support of it, whereas in the other case the delen- 
 " dant, by his answer adverted to the covenants to pay and put his de- 
 " fence on counterclaims." And effect was given to this defence un- 
 der the demurrer. The bar from lapse of time is a conclusion from 
 acquiescence, an inference from facts ; which need not be set up by 
 demurrer, answer or plea. 1 Baldwin, 413. 
 
 Where there are such conflicting authorities, I feel myself at liher- 
 ty to adopt the rule that appears to me the most reasonable and con- 
 venient. What is the case now presented to the court 1 Here has 
 passed by a period of upwards of twenty-three years. No disability 
 or excuse for this delay pretended ; no new discovery of fraud sug- 
 gested.
 
 290 CASES IN CHANCERY. 
 
 Firstcijruit. The parties lie by, until as appears from the bill, Smart, the party 
 ''^M*^^^ charered with having committed the fraud, is dead. Campbell, 
 
 McLean O o 
 
 Banon. his grantee, is also dead. No one is left to answer these charges. If 
 the lapse of time ought to bar this stale claim, I see no reason or pro- 
 priety in compelling these parties further to pursue this litigation. If 
 any disabilities existed, it would have been easy to have stated them. 
 If fraud has been recently discovered, it should have been so alleged. 
 
 And this allegation not having been made, the case cannot be aided 
 by proof, for the proof to be admissible must be founded on some al- 
 legations in the bill and answer. 1 LcLeari's Rep., 489. 
 
 A Court of Equity will lend its aid to detect and redress a fraud, 
 notwithstanding the lapse of time, but when the fraud is discovered, 
 the parties must act upon that discovery within a reasonable time. 
 The party seeking redress should not wait for a period of between 
 twenty-three and twenty-four years, until all those who were cogni- 
 zant of the transaction shall have paid the debt of nature, and no one 
 is left to deny or explain the allegations, without giving any excuse 
 for this delay. 
 
 Demurrer allowed.
 
 CASES IN CHANCERY. 291 
 
 William Brown vs. Solomon Gardner and others. 
 
 The jurisdiction of this court to interfere and restrain public officers who arc acting illegally First Circuit 
 
 to tlic manifest injury of others is well settled ; but the ground on which the court interferes /^^y^-^^F^ 
 
 in such cases is, to prevent great or irreparable injury. Brown 
 
 v$ 
 Upon a bill filed to restrain the Commissioners of Highways from opening a road through an Gardn.er. 
 
 orchard of mire than four years growth, und the gardens of the complainant, and after the 
 injunction was issued, but before it was served , or tile defendants had had notice of the issu- 
 ing of the injunction the road was opened and ilie answer denied that the road passed through 
 the orchard or gardens of complainant, and where from the evidence, it was doubtful wheth- 
 er the road passed through an orchard of the growth of four years and the injury was slight, 
 the Court of Chancery refused to retain the suite, clos up the road which had been laid out, 
 made and fenced, and also refused to award an issue quantum damnificalus. 
 
 It is competent for this court wliere it has acquired jurisdiction for the purpose of granting an 
 injunction to retain the suit lor the purpose of giving damages to the complainant ; but whe- 
 ther this court will do so or not depends upon tiie circumstances of the case. 
 
 Bill filed March 5, A. D. 1839, for an injunction to restrain the de- 
 fendants from laying out and working a highway. 
 
 The bill states that the complainant is owner and possessed of cer- 
 tain messuages or farms in the town of Cottrelville, county of St. 
 Clair — that he has improved and cultivated said farms for many years 
 past — that he has a garden on one of said farms which he has cultiva- 
 ted for more than twenty years, all of which time it has been used ex- 
 clusively for that purpose. That he has a garden on the other 
 of said farms, which he has prepared and cultivated for more than a 
 year past. That there is a grove of maple trees on one of the farms - 
 which he has cultivated and used for a sugar orchard. That he has 
 also an orchard on one of the farms of more than the growth of four 
 years. 
 
 That in the month of August, 1838, defendants proceeded to laj- 
 out a road upon and across complainanta farms and through said gar- 
 dens and orchards. That complainant forbid the laying out and wor- 
 king said road, and denied the right of defendants to lay out or open 
 the same. 
 
 States that the Commissioners of Highways have ordered the Over- 
 seers of Highways to cause the highway so laid out to be worked and 
 opened.
 
 292 CASES IN CHANCERY. 
 
 Fimt Circuit. That in the month of February, 1839, they actually commenced 
 Brown workmg the road and to open the same through the said farms, orch- 
 Gar'dner. ^n'ds and gardens. 
 
 Bill charges that defendants are not Commissioners of Highways 
 duly qualified, &o., and that they did not pursue the course pointed 
 out by the statute in laying out said highway. Charges that the ne- 
 cessity of said road was not certified by twelve respectable freehol- 
 ders sworn by an officer duly authorized to administer oaths. Char- 
 ges that the jury was not duly summoned, and drawn, and free from 
 all legal exceptions, and were not duly sworn by an officer duly au- 
 thorized to administer oaths, to assess complainants damages, and that 
 the jury assessed no damages to complainant. Charges that the road 
 would be more than two hundred dollars damages to complainant, if 
 worked through his orchards, gardens, &c. 
 
 That the damages in destroying his shade trees, &;c., would be irre- 
 parable. 
 
 Prays for injunction and that defendants pay damages and costs of 
 complainant. 
 
 The answer states that defendants were duly elected and qualified 
 as Commissioners of Highways for the said township of Cottrelville, 
 that defendant Ward was also County Surveyor, that they had full 
 and lawful authority to lay out said road. Admits complainant is 
 possessed and owner of the messuages and farms, and that he has 
 cultivated the same for many years past. States that in consequence 
 of the old road becoming impassable, owing to its having been wash- 
 ed away by the water, it became necessary to lay out and establish a 
 new road in said town. That the old road was duly and legally dis- 
 continued, and application having been made by 12 respectable free 
 holders of said township, certifying upon oath that such road was neces- 
 sary and defendants as Commissioners ordered and directed a new road 
 to be opened, laid out and established, which necessarily crossed the 
 farms of complainant, in the bill alluded to. That the order was 
 made and entered on or about the twenty-first day of August, 1838. 
 
 That in November, defendants gave complainant notice to remove 
 his fences &;c., which he neglected to do, that defendants then direc- 
 ted the fences to be removed and road to be opened. That before do- 
 ing so they applied to David Cottrell Esq., a Justice of the Peace of
 
 CASES IN CHANCERY. 298 
 
 said township, to obtain a jury to assess plaintifTs damages. That the First circuit 
 Justice issued his warrant to a Constable of the township of Clay to Brown 
 summon nine jurors in a township other than Cottrelville to assess Garduer. 
 complainants damages — that complainant had due notice of the time 
 and place, and attended, and on or about the third day of March, 1839, 
 the said justice drew by lor six jurors; that they were duly sworn to 
 assess the damages, and after having viewed and examined the prem- 
 ises they returned a verdict that complainant was entitled to no dama- 
 ges, which verdict was certified by the Justice and delivered by him to 
 defendants. 
 
 Answer states that after the verdict of the jury, defendants ofTered 
 complainant twenty-five dollars for his damages, which he refused — 
 that complainant appeared before the jury and claimed a much higher 
 sum. 
 
 Denies that the new road goes through any orchard on the premis- 
 es of complainant of the growth of four years, or through any gar. 
 den that has been cultivated four years or more. 
 
 Admits that a small portion on front of one of said farms which 
 has never been under any inclosure, but forms a part of a large field 
 on the site of said road, the complainant or his tenants might, on two 
 or three occasions and not oftener, as defendants have been informed 
 &c., have raised a few potatoes and other vegitables &c. 
 
 Denies that it was then or ever has been exclusively occupied as a 
 garden. 
 
 Denies that there is any orchard or garden on the site of the new 
 road, with the exception of the stubs of four or five young trees of 
 about one inch in thickness — avers that the said trees are not of the 
 growth of four years. 
 
 Answer admits that the new road passes through a grove of maple 
 trees on one of said farms. 
 
 Admits that complainant forbid defendants, and denied their right 
 to lay out said road. 
 
 States that before the service of the injunction or any knowledge 
 thereof, the road had been opened — that the only damage done was 
 the cutting down of several of the maple trees — that the stubs of ap- 
 ple trees might be easily removed, &;c. 
 
 Harrington and Emmons, for complainant.
 
 294 CASES IN CHANCERY. 
 
 Firstcircuit. First. The Court of Chancery has undoubted jurisdiction where 
 
 Brown public officers are proceeding illegally and improperly under a claim 
 
 Ganiiicr. of right to injure the property of individuals, to restrain them from 
 
 proceeding by injunclion. Cooper vs. Alden, Ante. 96 ; Devauxvs. 
 
 city of Detroit, Ante 98 ; 6 Paige 83 ; Id. 262. 
 
 The statute (Laws of 1833, page 103, sec. 16) provides that it shall 
 not be lawful for the Commissioners of Highways to layout any road 
 through any orchard or garden without the consent of the owner 
 thereof, if such orchard shall be of the growth of four years, or such 
 garden shall have been cultivated as such at least four years before 
 such highway or road shall be laid out. 
 
 The Revised Statutes (page 121 sec. 4) contains the same provis- 
 ion. 
 
 The bill states that the Commissioners of Highways of the town of 
 Cottrelville were proceeding to lay out and open a road or highway 
 through complainants garden which he had cultivated as such for 
 more than twenty years, all of which time it had been used exclusive^ 
 ly for that purpose ; also through an orchard of more than four years 
 growth. 
 
 This allegation clearly gave the Court of Chancery jurisdiction, 
 and it properly exercised that jurisdiction in granting the injunction 
 to restrain the opening of the road through complainants orchards 
 and gardens. 
 
 Second. Where the jurisdiction of the Court of Chancery has once 
 rightl"u!ly attached and the equity which gave the jurisdiction has sub- 
 sequently been defeated or destroyed, the court will retain its juris- 
 diction and do justice in the premises, although there may be an ade- 
 quate remedy at law. 1 Johns Ck. Rep. 131; 2 Story's Eq. 104 to 
 109 ; 1 Fonhl. Eq. " 59 " note (%) and authorities tlfre cited. 
 
 Third. The jurisdiction of this court in the premises is conceded ; 
 and the complainant has waived no right to ask relief in this court. 
 
 Ist. The objection to the jurisdiction of the court, that the com- 
 plainant has an adequate remedy at law should be made by plea or 
 demurrer or should be distinctly stated in the answer. Wiswall vs. 
 Hall, 3 Paige 313. No such objection is made by the answer in this 
 case. ((See also 4 Paige 399.
 
 CASES IX CriANCiniV. 205 
 
 Secoiul. The complainant has waived no right to ask relief in this '''"'^'"■"" 
 court. ^-^^^s-^^^ 
 
 The bill states that complainant " never gave his assent to have a "„","" 
 " public or private road run across his said farms ; but on the contra- 
 " ry that he refused his assent and denied the right of the said Com" 
 "missioners, and of any other persons to run, layout, or work a road 
 "across his farms aforesaid ; and when he learned from the persons 
 " calling themselves Commissioners of Flighways, that they werede- 
 " termined to run and lay out a public road through and across iiis 
 " farms aforesaid and through the gardens and orchards on his said 
 "farms as aforesaid, tliat he remonstrated against such a course of 
 ♦' proceedings, but all to no ctiect, iScc. " 
 
 That they " proceeded to survey and lay out a road or highway 
 " through and upon the farms of the complainant as aforesaid, and 
 " through the gardens and orchards of complainant on said farms, 
 '•notwithstanding the continued remonstrances of complainant." 
 
 T/tc answer admits that defendants went "upon the premises of 
 "complainant, then being in his possession, and then informed him 
 "that they were going to run a road across his said farms, to which 
 " they asked his assent, which he then and ever since hath withheld ; 
 "and they further admit that said complainant denied their right as 
 "such Commissioners, or the right of any other person to run or lay 
 "out or work a road across his farms ; and tht-y also admit thatcom- 
 *' plainant after being advised of their determination to lay out and 
 "establish said road as alleged in said bill, remonstrated against 
 ''such proceeding,^' which remonstrance they were compelled from 
 a sense of duty to disregard, (fee. 
 
 Answer further admits that defendants " proceeded to, and did sur- 
 "vey and layout said public road or highway, through and across 
 "said complainants farms, notwithstanding said remonstrance; and 
 '• that said road was opened and worked through. And they further 
 "admit that the complainant may have requested these defendants 
 "and Overseers of Iligliways to desist from laying out, establishing 
 "or working said road. '*' 
 
 Here there is an express averment in the hill which is admitted by 
 the answer ihat the complainant never gave his assent, but always re- 
 monstrated against the laying out and working of the road, and de- 
 nied the right of the defendants so to do. 
 
 Vol. I. 38
 
 296 CASES IN CHANCERY. 
 
 First Circuit 'f^e Statute is express (Laics of 1833, page 168, sec. 16 ; R. S. 
 Brown ^''^^^ *^^' ^0 ^^^^^ ^^ shall rot be lawful to lay out any road through 
 Gar^dner. any orchard or garden of the growth or cultivation of four years, 
 without the consent of the owner thereof. 
 
 Did the appearance of the complainant before the jary when noti- 
 fied by the Commissioners to appear, waive by implication a right, 
 which he positively, expressly, and at all times insisted upon, as ad- 
 mitted by the answer ? 
 
 The Commissioners are the sole judges of the necessity or propri- 
 ety of laying out the road. The province of the jury isto judge on- 
 ly of the amount of damages. Suppose the complainant had objec- 
 ted to their assessing the damages, such objection would have availed 
 nothing, for they had no power to judge of the necessity or propriety 
 of laying out the road. "The jury cannot lawfully decide that there 
 *• shall be no road when the Commissioners have determined there 
 "shall be one. 11 Pick. Rep. 2fi9. 
 
 It was also held in the case Hinckley et al 15 Pick^A^l, that '*the 
 appearance of the town, before the jury ordered by the Cominission- 
 ers to assess damages was not a waiver by the town, of the objection 
 that they had not notice. And the reason given in that case is that 
 the jury could not have acted upon such objection. 
 
 Fourth, If the nature of the defence is equitable though there has 
 been a full trial at law. 2 Barbour and Harrington's, dig. 113/ 1 Cook 
 242 ; 1 ^.A'. Marshall, 388; 4 Randolph, Rep. 537. 
 
 A. D. Fkaser for defendants. 
 
 First. Contended that this court had no jurisdiction of the case ; 
 that the statute (R. S. 125 sec. 30,) gives a remedy to a party who 
 conceives himself aggtieved. by an appeal, and that where the stat- 
 ute provides a remedy thiscourt will not interfere. And cited to this 
 point 1 Equity cases 131; 7 Paige 155 ; 19 Ves. 448 ; 6 Wend. 566; 
 4 Coioen 202 ; 3 Paige 573 ; 1 /(/. 114 ; 10 Wend. 174. 
 
 II. As to what constitutes an orchard within the meaning of the 
 statute, see 23 TrentZ. 360. 
 
 III. The evidence on the part of the complainant is not sufficient 
 to out weigh the answer of the defendants, and their testimony. It
 
 CASES IN CHANCERY. 297 
 
 is the province of the Chancellor to weigh the testimony and decide Fi"> circuit 
 upon it. See 1 Bailey's Rep. 3S6; Id. 514, But even if the allega urown 
 tions in the bill were well founded, it is shown that the complainant GQ^dner. 
 waived all objections on that ground by preferring his claim for dam- 
 ages. See 1 Cowp. 410 ; 2 ChitL ch. Dig. 1342 (o 1344 ; 2 Hill ch- 
 R. 7 ; id. 416 ; 2 Bar. Sf Marring. Eq. Dig. 1-26. 
 
 IV. Chancery will not, except under very particular circumstances, 
 as'there may be upon a bill for a specific performance of a contract 
 direct an issue or a reference to ascertain damages. 17 Ves. 277, 8/ 
 14 Id. 128; Fonhl. Eq. 69 ; 2 Story's Eq. 107, 109. 
 
 The cases of Denton vs. Stewart ; 1 Cox 258, and Greenaioay vs. 
 Adams, 12 Ves 395, arc over-ruled so far as the principles there laid 
 down are reconciled with the case in the 17 Ves. 277, 8. 
 
 In a case where it would be difficult to ascertain the injury resul- 
 ting from the breach of a contract or the sum in damages by which 
 the injury might be compensated, this court will not themselves as- 
 certain the injury nor the damages, nor direct an issue quantum dam, 
 nijicatus. 9 Cranc/i456; 2 Story's Eq. 104 to 109 ; 4 John. Ch. R. 
 560; Id. 195; 1 Coioen 755; 14 Ves. 129; Hid. 218 ^o285; 1 Sch. 
 and Lefroyl'o; b Johns. Ch. R. 194, 105; 3 iVienv. 248; 4: Johns, ch. 
 R. 560. 
 
 The Chancellor. — The bill in this case was filed to restrain the 
 defendants, Commissioners of Highways for the township of Cottrel- 
 ville, from opening a highway through premises, a part of which the 
 complainant alleges had been used for a garden for some twenty years 
 and a part as an orchard of more than four years growth. 
 
 The bill was filed under the provisions of the statute inhibiting any 
 road from being laid out without the consent of the owner through 
 any orchard of more than four years growth, or garden which had 
 been occupied as such more than four years before the laying out of 
 such road. , 
 
 The answer of the defendants inhabitants and officers of said town 
 expressly denies that the said road was laid out or opened through 
 any such garden or orchard. Proofs on both sides have been 
 taken. 
 
 It is si ngular that in relation to a matter of fact which from its very
 
 298 CASES IN CHANCERY. 
 
 Firstcircuit nature we would suppose must be apparent one way or the other, we 
 n,„,.-,. should meet with such direct contradiction as is found in the bill and 
 Gardner, the answer. 
 
 The proof however, to some extent, but not altogether, explains it. 
 [ shall not undertake to go through with the entire mass of testimo- 
 ny taken in this cause.- With regard to what is called in the evidence 
 the lower farm, it does not seem to me that the road can be consider- 
 ed as passing through an orchard of more than four years growth 
 within the meaning of the act. 
 
 The statute must receive a reasonable construction. The object of 
 it was to protect orcliards from being cut up and severed without the 
 consent of the owner. But one small tree and one broken stump and 
 those as it would seem of less than four years growth when the road 
 Was laid out, and detached from the trees in an orchard adjoining, were 
 included in the road. 
 
 There is soma evidence of an intention to continue the appropria- 
 tion of this ground for the purpose of an orchard. But wheVe the 
 fact is one of so doubtful a character and the injury so slight, it does 
 not seem to me that the court for this cause is authorized to retain this 
 Buitj and close up this road, which has been laid out, made and fenced, 
 or award an issue quantum damnijicatus. 
 
 As to the garden on the upper farm there is somewhat more diffi- 
 culty. Many respectable witnesses residing in the immediate vicini- 
 ty say that the grounds in question have not been used for a garden. 
 Others swear positively that they have been so used for several years. 
 I am inclined to think, after a careful examination of the testimony, 
 that the new road does encroach some thirty feet in the widest place 
 upon what the last witnesses mean when they speak of a garden. 
 Some culinary vegitables have been raised on different portions of 
 this piece of ground for many years; whether it has been so use dev- 
 ery year is very doubtful. The same portions of the ground do not 
 seem to have been occupied for these purposes each year. And from 
 the testimony it would seem not to have been very carefully cultiva- 
 ted, or to have produced much. And this explains the testimony of 
 those witnesses residing in the immediate neighborhood, who testify 
 that the road does not pass through any garden. From the manner 
 in which this ground has been used, the manner in M'hich it was found,
 
 CASES IN CHANCERY. 299 
 
 or rather from the fact that during a portion of the time it lias been First Circnii 
 partially without a fence ; it is doubtful whether it can be called a urown 
 garden within the meaning of the act. It would appear that it was not Gardner, 
 regularly enclosed, and set apart as a garden. But admitting that by 
 possibility, it may be regarded as a garden within the meaning of the 
 act, does this present such a case as calls upon this court to inter- 
 fere, when if the complainant is entitled to any remedy, the courts of 
 law can afford the same relief which is now sought here? The inju- 
 ry, if any, is very slight. Some of tlie witnesses say that tiic com- 
 plainant has sustained no injury; all place thedamages at a small sum. 
 The jury who were empannelled to assess the damages found that the 
 complainant would sustain no injury. 
 
 The jurisdiction of this court to interfere, and restrain public offi- i 
 cers who are acting illegally to the manifest injury of others, is well 
 settled. But the grounds on which this court interferes in such cases, 
 is to prevent great or irrejwirable injury. Such is not the case here. 
 The road was laid out and opened before the service of the injunc- 
 tion. There is nothing in the case from which to infer that the Com- 
 missioners acted in bad faith or intended any wanton violation of the 
 rights of the complainant. The indispensable necessity for a change 
 in the locality of this road is established. I find no evidence of un- 
 fairness or partiality in the summoning; or the conduct of the jury 
 summoned to assess the damages. But it is argued that as the court 
 has acquired jurisdiction for the purpose of granting the injunction, 
 it should retain it for the purpose of giving damages to the complain- 
 ant. It would be competent for this court so to do. It is sometimes 
 done. In a clear case of gross and wanton injury by public officers, 
 under color of their office, if the purposes of justice would be better 
 subserved than by sending the complainant to a court of law, I 
 should be disposed to do so. But in a case like this, when the offi- 
 cers seem to have acted in good faith, when it is doubtful whether any 
 trespass^ has been committed, and when, if it should be so found, the 
 damages, if any, must be very trifling, and a court of law can atford 
 the complainant an adequate remedy, 1 do not think this court is call- 
 ed upon to keep these defendants here, and send an issue to the coun- 
 ty of St. Clair, first to try the fact whether the land in question was 
 a garden or not, and then if so found, to assess the damages.
 
 300 CASES IN CHANCERY. 
 
 First Circuit The Convenient administration of justice will be belter subserved 
 Brown ^7 leaving the complainant to his suit at law in the county where the 
 Gardner. lands are situated and where the witnesses reside. 
 Bill dismissed.
 
 CASES IN CHANCERY. 301 
 
 Whitney Jones vs. Wing and Dean. 
 
 Where an allegntion is made in ilie bill wiili divers circumstances, the defendant should not hy Third Cir- 
 his answer deny ihc allcgiiiion liierally as laid in tlie bill, but should answer the point of sul)- ^^—.^^^ 
 stance positively and certainly. Jones 
 
 W. and D. being merchants, J. entrusted them with goods to sell on his account. W. and D. -^ving and 
 afterwards proposed to purchase the goods of J. and convey certain lands in payment there- Dean, 
 for. Six hundred and fifty acres of which they represented to be good pine lands averaging 
 forty pine trees to the acre from two and a half to five feet through, and that there was a good 
 mill site thereon, with six to eisiht feet ftill of water. J. sold the goods to W. and D., and 
 took a conveyance of the land^, relying upon the represenUitions of W. and D., and without 
 ever having seen the same, and it turned out that the representations were not true, and that 
 Jiicre was pine timber upon but about one fourth of tlie land, and upon that not much more 
 than one half the quantity represented upon a bill filed for that purpose. This court declared 
 the contract rescinded and decreed a re-delivery of the remaining portion of the goods, and 
 awarded to J. , the complainant, the re-payment to him of the value of the goods which had 
 been sold by \V. and U., and that uiiiil the payment should be made, J. should retain alien 
 upon the lands as a security for the amouut due him for the goods which have been sold. 
 
 Bill to rescind a contract on the ground of fraud. The statament 
 of the case is sufficiently given in the opinion of the court. 
 
 Pkatt and Lee, for complainant. 
 
 The conduct of the parties shows the merits of the case. The 
 complainant so soon as he saw the lands told the witness, Lyon, that 
 he had been cheated, and would have redress, and immediately on 
 his return to Marshall, and meeting the defendant, Deane, he asser- 
 ted his rights — declared himself to have been injured, and declared 
 that he should apply to the laws for redress. 
 
 This he has done, and what is the duty of this court ? 
 
 No complex questions of artificial rights at law arise to interfere 
 with the direct application of the principles of equity. The juris- 
 diction of the court is unquestioned, equity will always take cogni- 
 zance of fraud, and grant relief where it is proven to exist. The 
 peculiar and special power of the court is also properly invoked in 
 compelling an account of the property received, and a cancelling of 
 the conveyance to the complainant. 
 
 The fraud in this case was in a material point, the complainant
 
 302 CASES IN CHANCERY. 
 
 Third Cir- trusted to it and was mislead. He is therefore entitled to relief- — 
 
 cuit. 
 
 N..^-v^w Eva7is vs. BickneU,see 6 Fes. 173, 1822, 1 Bro. Ch. R. 546; Ja- 
 ^IT cob Rep. 178; 1 Fonhl Eq. B. \, Ch. 228; 1 Story Eq. 201. 
 
 ^^i)"eai!!"'* Whetlier the defendants knew their representations to be false, or 
 made the assertions without knowing whether they were true or false, 
 is immaterial, for the affirmation of what one does not know or be- 
 lieve to be true, is equally in morals and in law as unjustifiable as 
 the affirmation of what he knows to be positively false. Aenslee vs. 
 Modlecott, 9 Ves, 21; Graves vs. White Freem, R. 57 ; Pearson vs 
 Morgan, 2 Bro. Ch. R, 389. And even if the party innocently mis- 
 represents a fact by mistake it is equally conclusive ; for it operates 
 ns a surprise and imposition on the other party. 2 Bro. Ch. R. 369, 
 Burrows vs. Loche, 10 Ves. 475 ; 1 Ves. and B. 355 ; 3 Ves. and 
 
 B. 111. 
 
 Fraud and damage coupled together will entitle the injured party 
 to relief in any cnirt of justice. 7 John Ch. Rep. 201. 
 
 The consideration of the deed is $5,500; the complainant is en- 
 titled to a decree foi this, to have such of the goods as are on hand 
 and unsold restored to him — their value to be ascertained and to have 
 a personal decree against the defendants for the remainder, and until 
 that be paid to retain his lien on the bond, and if the balance be not 
 paid to him, that he may sell the land and have execution against the 
 defendants for the deficiency if any. 
 
 Woodruff, for defendants. 
 
 Lord Hardwicke thus enumerated the several kinds of frauds re- 
 lievable in a Court of Equity. 
 
 First. Fraud which is dolus malus may be actually arising from 
 facts and circumstances. 
 
 Second, It may be apparent from the intrinsic nature and subject 
 of the bargain itself, such as no man in his senses and not under de- 
 lusion would make on the one hand and as no honest and fair man 
 would accept on the other. 
 
 Third. F'raud vvhich may be presumed from the circumstanceis and 
 condition of the parties contracting, and this goes further than the rule 
 of law, which is, that it must be proved not presumed, but is estab-
 
 CASES IN CHANCERY. 303 
 
 lished in the Court of Chancery to prevent taking advantage of the rhini cir- 
 
 weakness or necessity ot another. ^^'■v^^ 
 
 FourLli. Fraud which may be collected and inferred in the consid- vs\ 
 
 i^ n c -n •' e- Willi; und 
 
 eration of a Court of Equity from the nature and circumstances of iJcau. 
 the transaction as being a deceit on other persons not parties to 
 the fraudulent transaction. 
 
 Fifth. Fraud in what are called catching bargains with heirs, re- 
 versioners or expectants in the life of the parents. 2 Ves. 155 cited^ 
 1 Story's Equity 198. 
 
 If these distinctions are well made, it cannot be contended that 
 the present case is sustainable in any other point of view than that 
 of fraud or dolus vialus. 
 
 The rule of the civil law — dolum ex indiciis perspicuis prohari 
 convenit. Cod. Lib. 2 Til. 21, l. G, cited 1 Story^s Eq. 199, is thus 
 translated and adopted in our own jurisprudence. " Fraud shall not 
 be presumed in law or equity without manifest proof." 3 Cases in 
 Chan. 85, 110, Comyn Dig. Tit. Chancery. 
 
 Circumstances of mere suspicion without leading to certain results 
 will not in either court be deemed a sufficient ground to establish 
 fraud. 1 Story Eq. 200. and cases there cited. 
 
 If the representations of the defendants were not fraudulent, then 
 the bill is not sustainable. If what the defendants said is consistent 
 with a mistaken judgment as to the quantity of pine and a water 
 power, and a fraudulent intent and act is not clearly proved, the com- 
 plaint is not made out, and no rule of equity can be shown which 
 will relieve the complainant from making out a clear case of posi- 
 tive fraud in this case. Notwithstanding what is said in Story 1 Eq. 
 p. 202, citing Burrows vs. Locke, 10 Ves. 475, De Mannville vs. 
 Compton 1 Ves. ami B. Sdb Exparte Law 3 Ves. and B. Ill, S{c. 
 it will be seen by reference to those cases that the above distinctions 
 uf Lord liardwicke are not gainsaid, but are in fact sustained in the 
 particular cases. 
 
 The statement must be of fact and not of opinion. 1 Story's 
 Eq. 20G. 
 
 The Ch.vncellob. — The bill in this case charges that the com- 
 VoL. I. 39
 
 304 CASES IN CHANCERY. 
 
 Tiiirf^.cir- plainant (a resident of New York,) on the 1st of October, 1839, 
 v^'-v"^^ had at Marshall, in this state, a large quantity of goods. 
 
 vs. That Wing and Dean, (ihe defendants,") were then merchants at 
 
 Wing and . 
 
 Deln. Marshall, and that the complainant entrusted a part of the goods to 
 them to be sold on his account. 
 
 That they proposed to buy the goods of the complainant, and pay for 
 them in lands in the county of Clinton, and with a view to induce 
 the complainant to take the lands, made to him the following repre- 
 sentations : That of the one thousand two hundred acres, the north- 
 ern six hundred and forty acres were the most valuable pine lands in 
 the slate ; that they would average from seventy to ninety trees per 
 acre, and those from two and a half to five feet in diameter. That 
 they had actual knowledge of the quality of the lands from their 
 own examinations, and that they would warrant there were forfy trees 
 per acre on the six hundred and forty acres. And that'* they also 
 staled that there was a good mill site, by which a fall of six or eight 
 feet could be obtained on Maple river. 
 
 The sale was consummated on the eighteenth of December ; the 
 comi)lainant soon after went to examine the lands, when he found as 
 is alleged, that out of the six hundred and forty acres there was not 
 more than one hundred and fifteen acres of pine timber. 
 
 The complainant returned to Marshall in the month of February 
 following, and saw the defendant Dean, to whom he immediately rep- 
 resented that he had been defrauded, and demanded restitution, which 
 was refused. 
 
 The principal point in the case is, as to the representations made 
 respecting the quality of the lands. 
 
 The answer of the defendants admits the sale of the goods for the 
 consideration stated in the bill. They deny that they represented 
 the six hundred and forty acres as the most valuable pine lands in the 
 state, and that they would average from seventy to ninety trees per 
 acre, and that they would warrant there were forty pine trees to the 
 acre, from two and a half to five feet in diameter on the whole 
 640 acres. It is proper here to say, that the answer in this respect 
 is not entirely satisfactory. If an allegation is made with divers 
 circumstances, the defendant should not deny it literally as laid in
 
 CASES IN CHANCERY. 305 
 
 the bill, but should answer the point of substnnco positively nnd ccr- Tiuni Cir- 
 tainly. •v^'V^^ 
 
 The defendants in their answer further say, that of the eight lots "'„!,';'' 
 they stated that four certainly had pine timber on them, on another jjcu"" 
 ,.hey thought there was pine, but were not sure ; that they had exa- 
 mined five, perhaps six , of the lots the summer before, but had not 
 examined the other two. That in December 1839, they told the com. 
 plainant in the presence of Samuel Camp and R. B. White, that as 
 they thought there were 40 pine trees on an acre on the land where 
 the j)ine grew. There are other allegations in the bill, which are 
 totally denied. There is a great discrepancy between the bill and 
 the answer, and we are compelled to resort to the testimony, to as- 
 certain the character of the representations concerning the land 
 which is the principal subject of controversy. 
 
 The answer of the defendants refers to statements rnadc in the 
 presence of White and Samuel Camp. Mr. Camp says "that Mr. 
 Dean stated that, that land of their's up north would average from 
 sixty to ninety pine trees per acre, from two and a half to five feet 
 through, and from sixty to ninety feet to the limbs ; and this conver- 
 sation was had but a day or two before the bargain Vas consummated." 
 This testimony is substantially corroborated by that of White, and in 
 some respects the testimony of White is still stronger. On being 
 asked what proportion ol" the lots did Wing and Dean represent as 
 having pine on them, he replied, that the expression was unqualified; 
 and it was, that the pine lands would have from sixty to ninety trees 
 to the acre ; and one of the defendants said he thought he would not 
 be afraid to warrant forty trees to the acre. On being asked if the 
 defendant referred to the whole or a part, says he did not refer to any 
 particular part. 
 
 The testimony of George E. Savage alone sustains to some extent 
 the ground taken in tlie answers. He left Marshall some time be- 
 fore the conversation referred to by Camp and White, and before the 
 bargain was closed. He was examined a long time after the transac- 
 tion took place. But admitting his testimony to be substantially true, 
 if the testimony of Samuel Camp, Wliite, and Hermon Camp of 
 subsequent conversations is also taken as true, (and I do not see how 
 it can be avoided,) it would not change the result.
 
 306 CASES IN CHANCERY, 
 
 ^**'cuit*^''^" ^^^ testimony of Hcrmon Camp of the conversation which took 
 
 v.^"Y"^/ place at the time^ of the delivery of the deed is important. At this 
 
 °s/ time, it would appear by the testimony of this ^witness, the defen- 
 
 Wing and 
 
 Dean, dants assured the complainant that there were six hundred and forty 
 acres of good pine land, which would average forty trees to the acre. 
 He further states that Jones said he had never been on the land, and 
 that he depended on the statement of the defendants. 
 
 There can be no doubt that the lands turned out to be very different 
 from such lands as the complainant would naturally have been led to 
 expect from these representations. The witnesses vary somewhat as 
 to the quantity of pine lands. One of the witnesses states that there 
 may be in all one hundred and seventy acres of pine, but of a quali- 
 ty inferior to the representations. Another from one hundred and 
 eighty to one hundred and eighty-five, averaging from eighteen to 
 twenty-two trees to the acre. Another witness states the quantity at 
 sixty acres of good pine. The other witness, Lyon, says there may 
 be one hundred acres of pretty fair pine land, averaging about twen. 
 
 ty trees to the acre. 
 
 It would seem that but about one-fourth of the land has pine timber 
 upon it, and upon this not much more than half the quantity which 
 the complainant would have been led to expect from the representa- 
 tions made ; and the complainant was a stranger, who had not seen 
 the lands, and who relied upon the representations'of the defendants. 
 Whether these representations were made knowing that they were 
 untrue, or were made without knowing, whether they were true or 
 false, the effect upon the complainant is the same, and the conse- 
 quence which must follow, must be the same. 
 
 The complainant as appears from the case, tr-usted to them and 
 was misled. Some other points were made in the case, but as their 
 consideration cannot vary the result, if is not necessary further to re- 
 fer to them. 
 
 The only doubt I have had in the case has resulted from a slight 
 degree of suspicion from the great degree of confidence which seems 
 to have been reposed in the defendants by the complainant, that he 
 may have seemed to rely on these representations, with a view to a 
 resort to this mode of redress ; but there is not sufficient shown in 
 the case to authorize this conclusion, and I think it is not so ; and
 
 CASES IN CHANCERY. 307 
 
 there is no alternative left to the court but to declare the contract '^''.'.IJ',^"' 
 rescinded, and to decree a re-delivery of the remaining portion of the v.^^/"^ 
 goods to the complainant, and award the re-payment to him of the "Ji^" 
 value of the goods which have been sold by the defendants, and to ucuu. 
 decree that until this payment shall be made, he shall retain his lien 
 upon the lands as a security for the amount due him for the goods 
 which have been sold. 
 Decree accordingly. 
 
 Note. An appeal was taken in this case to the Supreme Court-
 
 a08 CASES IN CHANCERY. 
 
 Austin Wales vs. the Presidext, Directors and Company op 
 
 THE Bank op Michigan. 
 
 First Circuit. rp|,p allegations in a bill upon demurrer arc taken to be true. 
 
 Where a note for SlUUU was nmilc payable at the Bank of Micliigan and other notes were turn- 
 ed out by the maker to secure the endorser of the glUOO note, with the understanding and a- 
 greeincnt that the notes so turned out should be placed in the bank for collection, and when a 
 satlicient amount should be collected on the notes so turned out to pay the ^1000 note, the 
 same should be applied in payment thereof; it jcas Ae/d that it came fairly within the scope 
 of the powers of the officers of the bank, as one of the most ordinary transactions of 
 taking security for a debt. 
 
 When the defendaiU is ignorant of the facts which constitute his defence at law pending the 
 suit, or that the defence could not have been set up, as a defence at law ; it forms an excep- 
 tion to the rule that equity will not interfere to relieve against a judgment at law. 
 
 The bill in this case states that complainant endorsed for the sole 
 benefit and accommodation of one Wessel Whitaker, a noie made by 
 him dated July 5th, ISSl, payable ninety days after date to the or- 
 der of E. T. Clark and Isaac O. Adams, at the Bank of Michigan 
 for the sum of $1000. That the note was endorsed by Clark & Ad- 
 ams as first endorsers, and Whitaker delivered to complainant to se- 
 cure the complainant for endorsing, one note for $600 or thereabouts 
 and another note for $1,391 36, with authority to collect a sufficient 
 amount on these notes to indemnify complainant for his endorsement. 
 That this agreement was communicated to E. P. Hastihgs, President 
 of the Bank of Michigan ; and the notes were placed in his hands to 
 be so collected and applied. Complainant was sued on his endorse- 
 ment, and May 1st, 1839 judgment was rendered against him for 
 $1,131 21, and fi. fa. was issued thereon. That after.the fi. fa. 
 had been issued, upon inquiry at the bank, complainant ascertained 
 that the note for $600 had been collected, and the amount had not 
 been applied. That the bank had let Theodore Romeyn have the 
 $1,391 36 note and had taken from him an agreement to pay the 
 amount due thereon in sixtj days, to which agreement complainant 
 never assented. 
 
 The bill prayed for a perpetual injunction, and for a release and 
 discharge of the judgment against complainant and for other relief 
 
 To this bill the defendants demurred..
 
 CASES IN CIIANCRRY. 309 
 
 Joy cSi Porter in support of the demurrer, cited G Pc/er* 01 ; 1 Fi"««rcuit. 
 Johns Ck. 49, 320, 4G5 ; 2 Id. 228. ^Vak-«. 
 
 Haiikof 
 
 D. Goodwin, contra, cited 5 Pelcrs\id. Midiigan. 
 
 The Chancellor — Tlie grounds taken in support of the demurrer 
 are these : 
 
 First. That Mr. Hastings, then President of the bank was acting 
 as the agent of Wales, and not in behalf of the bank. 
 
 The question now presented is, upon demurrer, by which the alle- 
 gations in the bill for the purpose of this decision must be taken to be 
 true. 
 
 The allegation is, that the notes which were held as collateral se- 
 curity '* were placed by the complainant in the bank with the said 
 President thereof, to be by the said President, Directors and compa- 
 ny used, held, collected and applied as before mentioned ; that is, for 
 the purpose of paying the note of Whitaker, of which Wales was in- 
 dorsee 
 
 It further appears that one of the notes of about S600, so deposi- 
 ted, has been collected, and that the proceeds have not been applied 
 to the payment of the note indorsed by Wales. 
 
 That the other note has been given up by the then President of the 
 bank, upon the undertaking of another individual to pay to the bank 
 the amount of Whitaker's note, upon which Wales was endorser. 
 
 Under these allegations uncontradicted, it would seem that these se- 
 curities have been treated throughout as a part of the security, on 
 which the bank relied for the payment of this note, and that it comes 
 fairly within the scope of the powers of the officers of the bank ; \i 
 was one of the most ordinary transactions, to wit, taking security fur 
 a debt. 
 
 The fact that one of the notes has been collected and the proceeds 
 not applied as was agreed, and that the bank is still proceeding to col- 
 lect the entire judgment must be fatal to a general demurrer, unless 
 it can be sustained on other grounds. 
 
 Second. The other ground in support of the demurrer is, that this 
 complainant comes too late. That he should have made his defence 
 at law.
 
 310 CASES IN CHANCERY. 
 
 Firstcircuit, ^]^q j-yle OH this subject is very rigid, and should be adhered to. 
 
 AVaies ^^^ ^his seoms to me to come within the excepted cases. 
 
 Bank of The Tule laid down in Lansing vs. Eddy, 1 Johns Ch. 51, is stated 
 
 ■^ " by Chancellor Kent to be, that this court will not relieve against a 
 
 judgment at law on the ground of its being contrary to equity, unless 
 
 the defendant below was ignorant of the fact in question, pending the 
 
 suii, or it could not have been received as a defence. This relief is 
 
 often also refused where the party has been guilty of negligence. 
 
 The allegation here is, that the complainant confidently relied and 
 expected the defendant would collect and apply the proceeds of these 
 notes to the payment of the note of VVhitaker, on which he was en- 
 dorser, and did not know or suspect he had any legal defence until af- 
 ter the judgment was rendered, when he for the first time learned that 
 one of the notes had been collected, but the proceeds Jiad not been 
 applied; and that the other had been transferred upon the understan- 
 ding of a third person to pay this identical note, upon which the judg- 
 ment is rendered against him as endorser. 
 
 The circumstances were well calculated to lull the complainant in- 
 to security. But for these transactions of the defendants, there was 
 no defence to the note ; of these he knew nothing until after the 
 judgment was rendered, the complainant, relying, as he says, that 
 the money would be collected upon the collateral notes to pay off this 
 liability. 
 
 The demurrer must be overruled with leave to answer. 
 
 Demurrer overruled.
 
 CASES IN CHANCERY. ■ill 
 
 John Fiieeman vs. Tlie Michigan State Bank 
 
 Ciiurls li.nvo always l'e«ii rigiil in rcniiriiig Unit llic proitospd aiiicrulnients j-lioulil lie blaliil la Kirsl CIrouit 
 llie a|iiilicalioM,urul a Ucl'cnclam will nol usually be pcruiillcil lo set up a fact or slate of facts, 's^^V^^ 
 incoiisisieiil witli die original defence. iTi-cmaii 
 
 IS. 
 
 When a motion was made to amend a |)lea, wliirli molioii was liased U|)on an sididavil, filalini; Micliiiran 
 
 Stale Italik. 
 an additional lad which was unknown lo the defendant at the time of filing the original pica, 
 
 and consislciit with the facts pleaded, I lie court granted the motion. 
 
 It is not usual lo refuse leave lo amend pleas, yet tlic dcfcuduut must be tied down lo a very 
 short tunc in which to amend. 
 
 This practice isconsisleiil willi the prnriji'c in pciaiiltin^ aniendmenls to sworn answers, and 
 there is no reason why the rule should not he ailniitled in amending pleas as well as sworn 
 answers. 
 
 If a plcji may he mnended upon the ground of a mistake or inadvertence, there can he no good 
 reason why it should not he, for the purpose of slating a newly discovered fad necessary to 
 the defence and consistent with the original plea. 
 
 Tills was a motion lo amend a plea. The motion was based upon 
 an affidavit setting up certain facts which had come to tlie knowledge 
 of the defendants after the original plea had been fded in the case. 
 
 Joy and Portek, in support of the motion. 
 
 There can exist no reason against the amendment of a plea to the 
 merits whicli does not e.\ist against the amendment of an answer, 
 other circumstances being the same. Where is the dilference ? Why 
 should a defence be excluded in the one case and not in the other ? 
 
 A plea to the merits must be considered an answer, and subject to 
 the same rules as to amendments as is an answer ; there being no 
 reason for any dilTerence. This I take to be the reason whtj there is 
 no Grille] as to the amendment of a plea. Story Eq. PI. 545, sec- 
 tion 701, the tchole section 13 Vesei/ 438. We have complied with 
 all the requirements of the section in Story. In the Vesey case, 
 Lord Eldon says " I shall certainly give leave to amend. " 
 
 Slory Eq. Phi., section 895, j^^S^ 685. Story says — " But 
 " though it is not usual to refuse leave to amend pleas, yet the defeu- 
 " dant will be tied down to a very short lime in which to amend." 
 
 Story also in Eq. Pld., page 685, section 89G, puts pleas and 
 
 Vol. I. 40
 
 312 CASES IN CHANCERY. 
 
 First Circuit j^,^g^ygj.g on the same ground as to amendments; classes them to- 
 Freeman gether. '» Ansvvers and pleas on oath says he &c. The most com- 
 Miciiigan "mon case of amendment is where through inadvertency the defen- 
 
 felale Bunk. 
 
 " dant has mistaken a fact or date." Is not the case of a newly dis- 
 covered fact equally as strong ? 
 
 See also subsequent section 897 8lory''s Equity Pleadings page 
 686. 
 
 8ee also section 902, page 688 of Story Equity Plds., which is ex- 
 actly in point and shows the principle by which the court is governed' 
 and section 903 8fc. 
 
 There can be no case fo und of any refusal to amend a plea where 
 the amendment was necessary to place the grounds of defence fully 
 and fairly before the court. It would be inequitable and unjust to 
 do so. It is not the rule nor the practice; on the contrary Courts of 
 Equity are always liberal in these matters, to promote equity and jus- 
 tice." 
 
 It will be found in examining the cases that where there has been 
 any doubt about allowing amendments, the amendatory matter 
 has been some alteration of the plea filed, in a date, matter of 
 fact, &c.; so that the amendment may contradict the substance of the 
 plea, &c. In such cases unless there has been an evident slip or 
 mistake, no amendment will be allowed. 
 
 The equity and justice of the case is so clear that there needs no 
 discussion really of the point. It would be iniquitous to shut out a 
 just and perfect defence on such grounds. 
 
 H. H. Emmons, contra. 
 
 The complainant contends no precedents can be found where an 
 amendment of a iilca is allowed when there is no mistake in the draw- 
 ing of the plea. The mere fact that the defendant was so negligent 
 that he did not enquire about facts which he knew to be necessary, or 
 which he was hound to know were necessary when he might have 
 known them, on enquiry. If an amendment is allowed in this case, 
 where is the case in which it will not be ? 
 
 Story's Eq. PI. 545, lays down the doctrine, it must be some slip 
 of the pen or some clerical error.
 
 CASES IN CHANCERY. 313 
 
 Story- s Ef]. PI. G85, s?c//on 89G. Picas upon oath will not for ^'"'*^''''^"'' 
 obvious reasons easily suffer to 1)0 amended, it must be inadvertency, Frepman 
 mistake in a date, &c. See also 1 Hoffman P. 226, Cooper Eq. Mi.^hiiran 
 
 Stale Bank. 
 
 PI 336 387. 
 
 This is but the very case which the books say cannot be done. — 
 " First get the opinion of the court, and then look up evidence to sup 
 *»port amendments to meet such opinion." 
 
 Here is no slip of the pen, no inadvertency, but a deliberate 
 framing of a pleading, omitting facts which the defendant now alleges 
 he did not knotv. He might have known them and that is sufficient. 
 
 The rule is surprise, mistake, or inadvertence. 
 
 In this case no great equity is to be perilled. The only equity is 
 to make a poor man take wild land for an eastern draft on which he 
 paid the money. And by looking at the doctrine of amendments, and 
 this class of them especially, it will be found the nature of the de- 
 fence and the equity of the bill always greatly influences the allow- 
 ance. This bank being a public institution, it probably has a right to 
 say here that it is paying sj)ecie on its bills. 
 
 The Chancellok. — Leave to amend is usually based upon mis- 
 take, inadvertence, &c. 
 
 In this case it is sworn in the affidavit, that the additional fact 
 which it is desired to present to the court by this amendment, was un- 
 known at the time of filing this plea. 
 
 Courts have always been rigid in requiring that amendments of 
 this kind should be stated in the application, and a defendant will not 
 usually be permitted to set up a fact or a state of facts inconsistent 
 with the original defence. But the amendment here contemplated 
 goes no farther than to state an additional fact unknown at the time 
 of filing the original plea, and perfectly consistent with it. 
 
 In examining all the cases cited, I can find no one where leave to 
 amend under circumstances analogous to these has been refused, 
 where the amendment is necessary to place the grounds of defence 
 fairly before the court. 
 
 The rule is stated in Cooper's Pleading, 336, that it is not usual 
 to refuse leave to amend pleas, yet the defendant must be tied down 
 to a very short time in which to amend ; and this is fully sustained
 
 314 CASES IN CHANCERY. 
 
 First rircilit {jy l]^^Q (.jjgg cited, 2 Vesey 85, where leave was given to plead r/e 
 
 Mic-higaii Tills practice is consistent Avith the practice in permitting amend- 
 '" ments to sworn answers, and I can see no reason why the rule should 
 not be admitted in amending pleas as well as sworn answers. 
 
 This is not a case where a party first obtains the opinion of the 
 court, and then sets up an additional fact known to him at the time of 
 pleading, or a defence inconsistent with the first plea. 
 
 It appears that this was unknown at the time of filing the plea, but 
 has since been ascertained. I can see no danger in allowing an 
 amendment in such a case when it seems absolutely necessary to 
 place the defence fairly before the court. 
 
 On the contrary it seems to me to be in entire harmony with the 
 practice in analogous cases. If a plea may be amended upon the 
 ground of a mistake or inadvertence, I do not see why it should 
 not be for the purpose of stating a newly discovered fact necessary 
 to the defence and consistent with the original plea. 
 Amendment allowed if made within ten days.
 
 OASES IN CIIANCRRY. ^ir) 
 
 Attorney Genera T. r.<f. Tlic P>ank op Michioan, 
 
 The jnrisdiclion of this court nvpr corporate hoiiics, for the purpose ofrcs irainhig their opera- f""*"' rirciiil 
 liona, orof wimliiig up tlicir concerns, 13 based [upon aid controlled hy the statutes of the 
 st;Uc. It has no such jurisihclion at common law, or under Us ceneral einiily powers, and ii 
 will not interfere except when ihts case is fairly brought within the scope and object of llic 
 statute conferring this special jurisdiction. 
 
 The provisions of the acts of June 21, 1837, and the act of April 12, ISU, in regard to banks 
 and incorporations commented upon and explained. 
 
 Where one part of an act is equivocal, oilier portions of the net may be resorted to 11s a c;\iidc 
 The occasion and the reason of the cnaclnient, which is the same tliin^ as tlic old law ami 
 Ihe mischief; the letter of the act, whether words be used in their proper or in a technical 
 sense ; the context, the spirit of the act, whether statutes be in their nature remedial or pe- 
 nal, the subject matter and the provisions of (he act, and the intent of the legislature in pas. 
 sing it, are to be considered: which intent is not to be collected from any particular expression, 
 but from a general view of the whole of the act. 
 
 If a corporation has forfeited its rights by misfeasance or nonfeasance, such forfeiinrc must be 
 shown by the pleadings ; it is not to be presumed; the legal prcsumpuon is otherwise. 
 
 The fact that a bank [not protected by statute, auihorizing a suspension of specie payments] 
 has stopped payment is not of itself conclusive evidence of its inability to pay its debts, but is 
 prima facie evidence of inability or insolvency. 
 
 The rule adopted in this state has been not to grant an injunction in the first instance upon the 
 allegation alone that a bank has stopped payment, but to grant a rule to show cause and re- 
 quire notice to be given to the defendanls. If not explained or excused in cases where the 
 b.ink3 are not protected from a forfeiture of their charters by reason of a failure, the court 
 would be authorized to grant an injunction and appoint a receiver. But when banks are au- 
 thorized to suspend specie payments, such refusal is not even prima facie evidence of insol- 
 vency. Sec nolc 3, at the end of the case. 
 
 The true construction of the sixth section of the suspension act of April 12, 1841, is that tin- 
 statements should be made out and transmitted to the Secretary of Suue. on Ihe days specified, 
 or as soon thereafter as the same can be made_ out and staletl. See section 6 in note 4 at tlic 
 end of the case. 
 
 Where no lime is prescribed in which an act is to be done, it must be done ina reasonablclimc 
 and this must be determined by the tFibunal before which the question may i)e made. 
 
 Motion by complainant ibr a receiver, and on the part of the de- 
 fendant for a modification of the injunction. 
 
 The bill states that December 19, 1817, the bank of Michigan 
 was incorporated, with capital of $100,000; was organized and went 
 into operation.
 
 31G CASES IN CHANCERY. 
 
 First Circuit rjyy^^^ |j^ accordance with the provisions in its charter, the capital 
 Aiiorncy was afterwards augmented to the amount of $500,000. 
 
 General 
 
 vs. 
 Ciinkof 
 
 That February 2.5, 1831, the charter was continued for twenty- 
 l\iiciirga'n. five years from and after the first Monday in June, 1839. 
 
 That ever since they commenced doing business, and down to the 
 present time, they have had a banking house in Detroit, and have 
 done an extensive banking business. That down to 1837, they were 
 unembarrassed, and were able to meet and pay all their liabilities 
 upon demand. But ever since that period, and down to the present 
 time, they have labored under embarrassments, and have been una- 
 ble during the greatest portion of the last mentioned period, and are 
 now unable to meet and pay their liabilities; and that their officers have 
 for some time past refused and still continue to refuse to pay" the 
 debts of the corporation; and that they have almost ceased the trans- 
 action of any business as a bank. 
 
 That the present liabilities of the bank are large ; that its bills is- 
 sued and in circulation amount to upwards of [8200,000 ; that it is 
 indebted largely to depositors, and otherwise; all of which are paya- 
 ble on demand. 
 
 That the state of JMichigan is a creditor as bill holder to over $20,- 
 000. That June 11th, 1841, complainant demanded payment or se- 
 curity, which was refused by the president and cashier of the bank. 
 Complainant charges insolvency, and avers that the interests of 
 the state require that it shall be enjoined, and a receiver appointed. 
 That in consequence of their refusal to redeem their bills, nume- 
 rous suits have been commenced against them, and their cash funds 
 are becoming diminished, and some creditors receive the full face 
 of their debts, while others may ultimately receive but partial pay- 
 ment. That a due regard to the interest of the creditors generally 
 requires an injunction to prevent the inequitable distribution of its 
 cash means. 
 
 That in and by the act entitled " an act to provide for proceedings 
 in chancery against corporations, &c," approved June 21, 1837, the 
 Chancellor has power to restrain by injunction any bank from exer- 
 cising any of its banking powers, and from receiving or paying out 
 any thing, whenever the Attorney General upon bill filed shall fur-
 
 CASES IN CHANCERY. 317 
 
 nish satisfactory proof that such hank has hccome insolvent, or unable, ^"''" '-'"■i"" 
 or has refused to pay its debts. And in and by the seventh section, Aiiormy 
 the Chancellor may compel sucli bank to dificover any stock, proper- Vi!^ "^ 
 ty, moneys, things, choses in action or effects alleged to belong to it, Michigau. 
 or in any manner liable for the final payment of its debts, the trans- 
 fer and disposition thereof, and all the circumstances of such trans- 
 fer and disposition ; and that every such ofiicer, agent or stockholder 
 may be compelled at the discretion of the Chancellor to answer any 
 bill filed to obtain such discovery. 
 
 The bill prays that defendants be required to answer all the alle- 
 gations in the bill, and particularly that they answer and discover as 
 particularly required in and by the seventh section as above quoted. 
 
 The bill prays the granting of writ of injunction, &c., restrain- 
 iog them from exercising any of their corporate rights, privileges or 
 franchises, and from collecting or receiving any part of their debts 
 due or to become due; and from paying out or in any way transfer- 
 ring any of the money, property or effects of the bank. 
 
 Also for the appointment of a receiver or receivers, in pursuance 
 of the fifth section of the act last aforesaid, in order that the assets 
 of the bank maybe applied in an equal and proportionate manner to 
 the payment of its debts. 
 
 The answer admits the organization of the bank, the augmenta- 
 tion of stock, the extension of the charter ; that it was unembarrass- 
 ed up to 1837, that since that time it had been embarrassed and una- 
 ble to meet and pay its liabilities, and has refused so to do. That the 
 present liabilities of the bank are large, but insists that its liabilities 
 are now less by $1,200,000, than in 1837, and $70,000 less than tlipy 
 were four months ago ; and that for many years past their aggregate 
 liabilities have not been so small as now. 
 
 Admits indebtedness to the state of Michigan to amount over $20,- 
 000. And that the bank officers did refuse to pay the same as 
 stated by complainant, and did decline to execute securities for the 
 future payment of the same in specie ; but that although they may 
 have declared their inability to do so, as charged in the bill, it was 
 not because the bank was not possessed of tjiat, and a much larger 
 amount in specie, but because they did not deem it their duty to pay
 
 318 CASES IN CHANCERY. 
 
 First Circuit tfje state of Michigan in specie, when they could not pay all bill hol- 
 '"-^^^^^^ tiers in specie. But they aver that they did oiler the Attorney Ge- 
 
 Aitoniey 1 •' j i i 
 
 *^''""''' ncral to turn out the assets of the bank in payment; and that he 
 imilfgan. "light have selected from all the assets amounting in all to nearly a 
 million of dollars ; and of a value very much more than suflicient to 
 cover and pay all the debts of the bank. 
 
 Expressly denies insolvency, and avers that the contrary is the 
 fact. That on 15th February last, upon the examination by com- 
 mittee of the legislature, the said committee and officers of the bank 
 made a scrutinizing examination into the situation of the bank, and 
 of all its assets ; by which investigation it vyas ascertained as certain- 
 ly as such a fact could be, that the assets were sufficient to pay oiV 
 and discharge all its liabilities ; and not only so, bift.also to leave a 
 surplus, after being converted into cash funds, of more than $400,- 
 000, to be divided among the stockholders. That since said 15th 
 February last, no material change has taken place in the condition 
 or value of said assets, or to depreciate ihem, unless it be that the 
 two thirds or apjyraisal lata passed last winter may operate injurious- 
 ly. That some of their securities have been changed — some of the 
 paper then held by the bank has been paid ; but that no change has 
 taken place, so great as to render the insolvency of the bank a prob- 
 able fact, although the stock-holders may be affected. That the bank 
 has in its vaults in specie funds about §50,000. 
 
 Admits that numerous suits have been commenced and continue to 
 be, to the injury of the bank by accumulation of costs and expen- 
 
 iies. 
 
 Answer avers that although now embarrassed, the bank is able and 
 willing to pay and redeem all its bills by turning out their assets. — 
 That many of its creditors are desirous of being thus paid, and the 
 interests of the public can not be injured by it. That the bank has 
 made great ellbrts to pay off their large liabilities which it had crea- 
 ted in 1836-7 ; and has succeeded in liquidating almost entirely those 
 which were the largest and most pressing, and is now comparative- 
 ly free from the pressure of large debts. 
 
 States that the appointment of a receiver would be ruinous to the 
 niterests of the stockholders, and could not be beneficial to the pub-
 
 GASES IN CHANCERY. 319 
 
 lie, the state of Michigan, or the creditors of the bank. That a sud- ^'"^^ ^''^'"'^ 
 den and forced winding up of its affairs by a receiver, would be pro- Auomey 
 ductive of mischief and injury to the bank, stockholders, and credi- 
 
 Gcnerai 
 
 vs. 
 Biiiik or 
 t OrS. Micliiguti. 
 
 Attorney General, in person. 
 
 Insolvency is defined to be inability or refusal to redeem. Both are 
 cliarged, and both admitted. 
 
 Suspension of payment is evidence of insolvency, which cannot 
 be rebutted by the naked assertion of its ultimate ability to pay. — 
 Such assertion is nothing more than an expression of an opinion as 
 to the future value of the assets. 
 
 Whether such opinion is well or ill founded depends upon the 
 final result, and cannot be known until the usual process has been 
 gone through of converting them into money. 
 
 The statements in the bill furnish evidence of insolvency. 
 
 The mortgage to the Dvvights is evidence of insolvency. 
 
 If then, there is good reason to believe the bank insolvent, by 
 whom shall its affairs be icound up ? 
 
 It is not proper to leave the bank in the hands of those officers un- 
 der whose administration it has failed. 
 
 The appointment of receivers is necessary for this purpose. 
 
 The directors and officers of the bank are appointed by and rep. 
 resent the stockholders. Their sympathies and prejudices are with 
 them, and are adverse to the bill holders. 
 
 The appointment of strangers will secure a fearless investigation 
 of its affairs, which the public have a right to expect. It may 
 become their duty to institute proceedings against the directors and 
 officers. 
 
 The facts cannot be known until the Receivers investigate. 
 
 In the language of Ch. Walworth, " those creditors who have been 
 stripped of their property by the failure of the bank, have a right to 
 claim from the court the appointment of receivers upon whose im- 
 partial investigations they can rely, and who could have no interests 
 in opposition to theirs." 1 Paige 517 ; 3 Wend. 538. 
 
 Ch. Walworth says, " If the interesls o( stockholders were first 
 
 Vol. I. 41
 
 320 CASES IN CHANCERY. 
 
 First Circuit eonsulted, it would be proper to give to tliose indebted to the bank, 
 Attorney ^^^ ^^ P^°^ cii'cumstances, siifFicient time to buy up the bills from 
 '^Ts^f honest creditors at a great discount, and thus restore the broken in- 
 Michigan. stitution to a state of solvency. But in such case the real creditors 
 would lose the greatest part of their debts, although the stockholders 
 in the end might save something of the stock. It is therefore neces- 
 sary and proper, in every case of this kind, for the protection of the 
 creditors, who have the first claim to the property, to turn its ejects 
 into cash rvith the least possible delay, so tliat a distribution may be 
 made before their necessities or fears compel them to sacrifice their 
 demands. 
 
 The bank now seeks to obtain yro7?i the Chancellor what the le- 
 gislature refused to grant them, to wit, immunity against its bill hol" 
 ders. 
 
 Joy and Porter, for defendants. 
 
 As to the jurisdiction of the court, it is limited by the statutes. 
 1. Edwards Rfj)., 87, and cases there cited are conclusive. 
 
 The extent of the authority conferred is settled by this court in tlie 
 case of Barnumvs. Bank of Pontiac ; ante 116. 
 
 As to the proof of insolvency upon which charge alone the in- 
 junction rests. See 1 Paige 515 ; 3 Wend. 590; 1 Edivards 92; 
 2 Edwards 286. 
 
 A receiver then cannot be appointed. Will the court modify the 
 injunction 1 It must dissolve it on motion, why not then modify ? 
 The answer is ample and complete as to the only charge upon which 
 the bill rests ; the whole equity of the bill is denied. 
 
 The only real question is whether the court will hear this motion at 
 this time. We say it will, because the whole equity of the bill is de- 
 nied, and exceptions can avail the complainant nothing if they are 
 taken ; they will only cause injury to the defendant without object. — 
 The rule relative to exceptions does not apply in such a case. 4 
 Paige 111; ante 162. 
 
 Besides the court reserved by its own order the power to modify 
 at any time. Edicards on Recv'rs., Swanst. 228 ; Merivale 29 ; 
 Eden. 122.
 
 IS. 
 
 k 
 igau. 
 
 CASES IN CHANCERY. 321 
 
 As to the suspension law, I will remark tliat the court must pre- First circuit 
 same that the bank is under the law, until the Attorney General ^^"^'^^^ 
 
 ' •' AKorney 
 
 shows that it is not. Ocneral 
 
 , ca. 
 
 So far as the Bank of Michigan is concerned, the terms of the law Ai^eh'^ "^ 
 are express and include the bank by name. The court will say and 
 presume that the bank has accepted a law enacted for its benefit 
 unless the contrary appear. The answer was only to the hill filed. 
 The bills, neither of them charge that the bank has not accepted or 
 availed itself of the suspension law, and it must of course be taken 
 to have done so unless the contrary be stated or in some way appear. 
 It does not fall upon us to show that we are under the protection 
 of a law passed for our express benefit, unless the opposite party 
 charges that we are not under it. We are there until tliey shoiv that 
 we are not. 
 
 A corporation will be presumed to have accepted of the terms of 
 an act passed for its benefit, until the contrary appear. This is rea- 
 son, and the principle lias been repeatedly decided in the Supreme 
 Court of the United States. Indeed this must be so, because other- 
 wise the bank could not show the fact before July. The question 
 of filing a statement does not come up because it does not appear to 
 the court that it was not properly filed. And had any such charge 
 been made, we should have shown that it was properly and duly filed 
 under the law. 
 
 The Chancellor. — Before proceeding to the examination of the 
 facts disclosed by the pleadings in this cause, it will be necessary to 
 examine the statutory provisions which have a bearing upon the 
 question presented. The jurisdiction of this court in this class of 
 cases is based upon and controlled by the statutes. It has no such 
 jurisdiction at common law. Tlie Attorney General vs. the Utica 
 Ins. Co. 2 ./. C. R. 371 ; Same vs. Ba7ik of Niagara, 1 Hop. 354; 
 Verplanck vs. Mercantile Ins. Co., 1 Edu\ 87. In the last men- 
 tioned case the Chancellor says : " After such repeated decisions ex- 
 pressly disclaiming all jurisdiction over corporate bodies for the pur- 
 pose of restraining their operations or of winding up their concerns 
 under the general equity powers of the court, the complainants must 
 not expect any interference, except it be under special authority of
 
 322 CA.SES IN CHANCERY. 
 
 First Circuit existing statutes, and when the case is fairly brought within their 
 Attorney scope and object." The proceedings in this case are based upon the 
 ^^"s.'*'' provisions of the act of June 21st, 1837. (1) This imposes upon 
 Wiciiigan. the court the duty of enquiring how far the powers and duties of 
 this court are controlled by subsequent legislation. By the first sec- 
 tion of the act of April 12th, 1841, (2) it is enacted that every 
 provision of law in force requiring or authorizing proceedings against 
 the Bank of Michigan and the Farmers' and Mechanics' Bank of 
 Michigan and their branches, with a view to forfeit their charters or 
 wind up their concerns, or which requires them to suspend their ope- 
 rations, and proceedings in consequence of a refusal to pay their 
 notes or evidences of debt in specie is hereby suspended. Section 
 three, requires the Bank of Michigan to lessen its liabilities at the 
 rate of #20,000 quarter yearly. Section four, prohibits any bank 
 from dividing or paying to its stockholders or to any person for them 
 any dividends, profit, or interest, until after it shall have resumed 
 paying its debts and liabilities in specie, and shall have continued to 
 do so in good faith for three months. Section five inhibits the banks 
 and their officers from selling specie or bullion at a premium, and 
 from purchasing its notes at a discount ; and provides that " every 
 violation of this section shall be a forfeiture of its charter." Section 
 six is, " that every such bank or branch shall transmit a statement 
 under oath of the president, cashier, and a majority of the directors, 
 of its true condition, once in every three months, viz : On the first 
 day of January, April, July and October, to the Secretary of State, 
 who shall cause the same to be published in the state paper ; and the 
 expense of such publication shall be paid by the banks respective- 
 ly." Section seven is as follows : "It shall be the duty of the Sec- 
 retary of State, on the receipt of each quarterly statement provided 
 for in the sixth section of this act, to transmit as soon as practicable 
 to the Governor, Lieutenant Governor, Auditor General and Trea- 
 surer of this state, each, a certified copy of such statement ; and if 
 on examination of the same, it shall appear to any one of said offi- 
 cers, including the Secretary of State, that any bank availing itself 
 of the provisions of this act, is, or has been so conducting its busi- 
 ness, as in their opinion to endanger the interests or security of the
 
 CASES IN CIIAXCERY. ^iiJ 
 
 public ; or those holding its notes or other evidences of debt, or in ^'"' '^''"^^"■ 
 any way improperly to abuse the privileges by this act granted ; or Auortiry 
 
 1 rt' 1 11 1 1 Ociieral 
 
 if from any other cause any such olTiccr shall have good reason to r5. 
 believe that any such bank has so improperly conducted, then it shall Mkhigau. 
 be the duty of such officer with the advice and consent of one or 
 more of his associates above named, forthwith to cause an examina- 
 tion to be made of the conduct and affairs of such bank; and in case 
 it shall thereupon appear to the satisfaction of three or 'more of said 
 officers, that such bank is, or has been conducting its business impro- 
 perly as aforesaid, it is hereby made their duty forthwith to report 
 such fact to the Attorney General, who is hereby required to proceed 
 against such bank as directed in the tenth section of this act." Sec- 
 tion eight provides, that the Bank of Marshall, the Bank of Adrian? 
 the Merchants' Bank of Jackson County, the Bank of Constantino, 
 and the Erie and Kalamazoo Rail Road Bank, may avail themselves 
 of the provisions of this act, by conforming to its requirements, up- 
 on obtaining the certificate of the Aiuiitor General, State Treasurer, 
 and Secretary of State, that their business has been honestly ma- 
 naged, and that they are in a sound condition. Section nine pro- 
 vides, that the Auditor General, State Treasurer, and Secretary of 
 State, before they proceed to examine such banks as may apply to 
 them for that purpose, shall make oath before any person authorized 
 to administer the same, that they will not grant a certificate to any 
 bank unless they shall be perfectly satisfied that the resources of such 
 bank are, and will be adequate to the uUimate payment of its circu- 
 lation, and all other liabilities permitted by this act. Section ten, 
 authorizes the Attorney General to proceed against any bank avails 
 ing itself of the provisions of this act, and which shall directly or 
 indirectly violate the same, by injunction, quo warranto or otherwise, 
 in the same manner as if this section (probably a misprint for act) 
 had not passed. The act of April 12, 1S41, in its material provisions 
 is a literal copy from the suspension law of New York of I\Iay 16, 
 1837. The first section is identical except that the names of the 
 Bank of Michigan, and the Farmers' and Mechanics' Bank, are in- 
 troduced. Of the construction of the New York statute there is no 
 doubt. In respect to a portion of the banks in that stale, the law
 
 324 CASES IN CHANCERY. 
 
 First Circuit, requires tliat a bank which shall suspend specie payments shall on 
 ^Mioniev P''^'^ *^*^ forfeiture of its charter, " wholly discontinue and close their 
 '^"s'^'*" banking operations." What was intended by the provision of the- 
 Miciiigan. ninth section of the suspension law of New York, placing the banks 
 under the supervision of the bank commissioners, and authorizing 
 them to institute proceedings against any bank in dangerous or in- 
 solvent circumstances? It could not have intended an inability to 
 pay their liabilities at the time, as the very object of the law was, to 
 relieve the banks from the penalties they incuiTed by reason of such 
 inability, it must have contemplated ultiviate insolvency. By our 
 statute the oflicers who are constituted special commissioners for this 
 purpose, may if they are satisfied any bank Js so conducting its 
 affairs as to endanger the security of the public or those holding its 
 notes, institute an examination, and upon the concurrence of three 
 of them, proceedings may be instituted under the provisions of the 
 act. There can be no doubt that the construction of the first section 
 of the New York statute is, that every provision of law requiring 
 or authorizing proceedings against banks with a view to forfeit their 
 charters or wind up their concerns, and that every provision of law 
 which requires them to suspend operations and proceedings in conse- 
 quence of a ret'usal to pay their notes and evidences of debt in spe- 
 cie is suspended. I do not well see what other construction can be 
 given to this section either in the New York act or our own. The 
 words " or which" must refer to ih.e provisions of law which were in- 
 tended to be suspended. Where one part of the act is equivocal, 
 other portions of the act maybe resorted to as a guide. "The occa- 
 sion and the reason of the enactment (which is the same thing with 
 tlie old law and the mischief,) the letter of the act (whether words be 
 used in their proper or technical sense,) the context, the spirit of the 
 act, (whether statutes be in their nature remedial or penal,) the sub- 
 ject matter and the provisions of the act, have all to be considered. 
 Again the intent of the legislature is not to be collected from any 
 particular expression, but from a general view of the ivliole of the 
 act." Per. Best. C. J. 3 Bingham 196; Dicarris on Statutes 47, 
 48. The ninth section of the law of New York places the 
 suspended banks under the special supervision of the bank commis- 
 sioners. The sixth section of our law requires the suspended banks
 
 CASES I N CIT ANCEU Y . 325 
 
 lo transmit a statement of their condition once in three months to f""'"^-''''""'' 
 Ihe Secretary of State. Section seven contemplates that the otTicers ^^n„r„cy 
 therein mentioned and to whom a copy of each statement is to be ^'^'.^^'^'■'' • 
 
 , . . , naiik of 
 
 transmitted, and each ol them, shall exercise a supervision over those Mknigau. 
 suspended banks, and if in the opinion of either of them, any bank 
 is, or has been so conducting its business as to endanger the interests 
 or security of the public or those holding its notes or other eviden- 
 ces of debt, any such officer with the advice and consent of one or 
 raore of his associates may institute an examination of its atfairs. — 
 It has been shown that in the construction of statutes which may ad- 
 mit of doubt, we must resort to the object and intent of the legisla- 
 ture ; the mischief to be obviated, and the remedy contemplated. It 
 appears from the pleadings in this cause that the legislature had insti- 
 tuted a careful investigation of the affairs of this bank. The condi- 
 tion of its assets was not then materially variant from the present. 
 Its liabilities have since that time been diminished some $120;000, 
 and it appears that for many years no part of their assets have been 
 used otherwise than for the payment of its liabilities. The legisla- 
 ture must have been aware of the inability of the bank to pay off its 
 liabilities immediately, though they seem to have entertained no doubt 
 of its ullimate'solvency. Can it by any possibility be inferred that the 
 legislature contemplated or intended by this legislation that this bank 
 should be wound up on the ground of insolvency under the state of 
 facts here presented? The insolvency is again and again denied in 
 every form by the president and directors, who must be deemed bet- 
 ter able to form an opinion than strangers unacquainted with its con- 
 cerns, and this too after a full, careful, and detailed investigation of 
 all their assets and liabilities. Not only is insolvency denied, but it 
 is alleged that there will remain a large surplus after the payment of 
 all their debts and liabilities. Did the legislature intend to treat the 
 several banks which should become subject to the suspension act une- 
 qually ? This cannot be supposed. The ninth section provides, 
 that the banks which are named in the eighth section shall satisfy 
 the Auditor General, State Treasurer and Secretary of State, " that 
 the resources of sucli bank as shall apply to them for that purpose, 
 are, and will be adequate to the ultimate payment of its circulation 
 and all other liabilities permitted by this act." This is in harmony
 
 ink 
 Michigan 
 
 326 CASES IN CHANCERY. 
 
 First ciiciii'. with the supervision vested in those officers by tlie seventh section. 
 ''^*''^''"'*^ Under that section, if they or any three of them should become sa- 
 
 Attorney •' 
 
 General, tjgfied that from the conduct of the banlc or the condition of its affairs, 
 Bmiifof jgg^j proceedings were necessary to effect an equality of distribution 
 or a proper application of its means, it would then be competent for 
 them to direct proceedings to be instituted under the provisions of 
 that act. For the purposes of this motion it should be remarked that 
 this bank must be considered as under the provisions of the suspen- 
 sion act. It was placed expressly under it in terms, from and after 
 the passage of the act. If it has forfeited its rights under it by mis- 
 feasance or nonfeasance, such forfeiture must be shown. No allu- 
 sion is made in the pleadings to any act of omission or commission 
 by which such forfeiture has been incurred. It is not to be pre- 
 sumed. The legal presumption is otherwise. It has been held that 
 grants beneficial to corporations may be presumed to have been ac- 
 cepted, and an express acceptance is not necessary. Charles River 
 Bridge vs. Warren Bridge 7 Pickering 344; Dart. Col. vs. Wood- 
 ward 4:Wheaton 688; U. S. Ba7ik \s. Dandridge 12 Wheatonll. But 
 admitting that the operation of the first section of the suspension act 
 should be limited to the failure to pay its notes or evidences of debt 
 in specie, which from a careful examination I think it cannot, would 
 the result be varied? The legislature could not have intended to ap- 
 ply one rule to the banks specially named in the first section of the 
 act, and which were undoubtedly the principal objects intended to be 
 benefited by it, and another to the other banks named in the act.— 
 We have seen that those banks were required only to satisfy the of- 
 ficers before named of their ability ultimately to pay their liabilities. 
 We have seen this ability in the case under consideration asserted and 
 reasserted in the broadest and most comprehensive form by those 
 best acquainted with its condition. The answer for the purpose of 
 the present motion must be taken as true. Under either construc- 
 tion of the act then, the motion must be denied. Some misapprehen- 
 sion seems to have been entertained upon the effect of the refusal of 
 any bank not protected by statute to pay its debts or liabilities in spe- 
 cie. The rule adopted here is the same as in .New York. In the 
 case of the Attorney General vs. the Bank of Columbia 1 Paige 
 611; the Chancellor says, that the fact that the bank has stopped
 
 CASES IN CHANCERY. 327 
 
 pavment is not of itself conclusive evidence of its inability to pay *■'"■*' ^"■•^""• 
 its debts, but is prima facie evidence of inability or insolvency. In jm,ornc-y 
 the case of Stuart vs. Mechanics' Bank, 19 Johnson's Rep. A91 ; Oencrai. 
 it is said " a bank may be quite solvent notwithstanding it fails Michigan. 
 to redeem its bills. This we know to have happened in several 
 instances where the ability and solvency of the banks have been af- 
 terwards fully established." The rule adopted here has been not to 
 grant an injunction in the first instance upon this allegation alone, 
 but to grant a rule to show cause, and require notice to be given to 
 the defendants. If not explained or excused in cases where the 
 banks are not protected from a forfeiture of their charters by reason 
 of a failure to pay specie, the court would be authorized to grant an 
 injunction and appoint a receiver. (3) But where banks are autho- 
 rized to suspena specie payments, it is not prima facie evidence of 
 insolvency. It may be proper to say that the result, to which I feel 
 myself compelled by the provisions of law bearing upon this case, to 
 arrive, in my opinion will be better for the interest of the bill holders 
 and creditors of the bank than would be the usually disastrous mea- 
 sure of appointing receivers. It must be apparent that in the pre- 
 sent condition of the country such a measure must result in great 
 losses, and that heavy expenses must be incurred, and if by such 
 means the resources of the bank should be found insufficient to pay 
 its liabilities, the loss must fall upon it? creditors. The entire re- 
 sources of the bank have been thus far applied to the payment and se- 
 curity of its debts and the officers of the bank in their answers state their 
 intention to continue so to do. The aggregate amount of the indebt- 
 edness of the directors is small. No part of the resources of the 
 bank have been diverted to pay dividends, and I can perceive nothing 
 in the case as presented before me, to lead to the belief that the af- 
 fairs of this institution have not been honestly and in good faith ad- 
 ministered. But these remarks which would apply properly in a case 
 for the exercise of discretion in the appointment of a receiver, are 
 perhaps unnecessary in the present case ; as from the view 1 have 
 taken of the law bearing upon it and from which I cannot escape, 
 there is no room for the exercise of this discretion in the case. The 
 law being positive, the rights of the defendants are fixed, and the du- 
 ty imposed upon the court imperative. A question has been inciden- 
 VoL. I. 43
 
 328 CASES IN CHANCERY. 
 
 First Circuit ^^\[y raised as to the construction of the sixth section of the suspen- 
 
 Attorney ^^^'^ ^^^ (4) hut as it is not necessary to the decision of the case, I 
 
 Ds. ■ have had some doubt as to the propriety or necessity of expressing 
 
 Bank of . . . _^ 
 
 Miciiigun. an opinion upon it. Ihe lacts do not appear as to when this bank 
 filed its statement of the condition of its affairs. The question is, 
 ^ are the banks compelled to transmit a statement of their condition 
 on the first days of January, April, July and October, or are they to 
 transmit a statement of the condition iheytcere in on those days as soon as 
 thesame can thereafter be made out and stated? It would of course be 
 impossible to ascertain their condition on a particular day and make 
 and transmit a statement on the same day. if tlie statement is to be 
 transmitted on those days, it must be of their condition on some pre- 
 vious day, and each bank must be left to select its own day. This 
 would certainly open the door for transfers from one to the other, 
 and might lead to inconveniences which the legislature intended to 
 guard against by requiring a simultaneous statement of the condition 
 of all the banks on the same day. Some of the banks contemplated 
 by the terms of the act are situate some one hundred and fifty 
 miles distant from the office of the Secretary of State. Are tiiose 
 banks required to file on that day a statement of their condition, or 
 on some indefinite previous day of their own election, or must they 
 " transmit" by mailing their statement on that day, or was it the in- 
 tention of the legislature that they should transmit a statement of 
 their condition on the particular days indicated by the act? The 
 statute requires that the statement of the condition of the banks 
 shall be made under oath of the president, cashier and a majority of 
 the directors. Should this be impossible from the absence or sick- 
 ness of the president or cashier, or a portion of the directors, must 
 the statement be actually transmitted on this particular day under 
 pain of a forfeiture ? The language and object of the act, the se- 
 curity intended to be afforded to the public, the inconvenience if not 
 impossibility of otherwise conforming to its terms, all concur in lead- 
 ing to the construction that the statements shall show the condition 
 of all the banks under the suspension law at one and the same pe- 
 riod of time ; and that their statements shall be filed as soon as they 
 can properly be prepared and examined by the different officers re- 
 quired to make oath to the truth of the statements of their condition
 
 CASES IN CHANCERY. 329 
 
 on those days. Where no time is prescribed in which an act is to First circuit 
 be done, it must be done in a reasonable time, and this must be de- Anompy 
 termined by the tribunal before which the question may be made. — '^'17.''' 
 9 Pickering 404; Coke Lilt. 208. But if the construction should be Miciiigan. 
 otherwise, 1 do not perceive how a failure to conform to this section 
 on the particular days mentioned can be held ipso facto to work a 
 forfeiture. The rights and immunities conferred upon this bank by 
 the first section of the suspension act are positive and unconditional. 
 The fifth section provides, that a failure to conform to the provisions 
 of that section shall work a forfeiture. The sixth section is directo- 
 ry and imposes no penalty or forfeiture. The consequence of a 
 failure to conform to the requirements contained in that section, there- 
 fore would subject the delinquent bank to be pioceeded against under 
 the provisions of the tenth section of the act, and the failure to 
 conform to the provisions of the act must be averred and shown. — 
 The bill as before stated contains no such averment, and as the ques- 
 tion is not necessarily involved in the decision of this motion, I should 
 not have deemed it necessary to express an opinion upon it, but from 
 the consideration that the views I have taken of the law must be con- 
 clusive upon the principal object of the bill, the complainant, if any 
 doubt is entertained of the correctness of the conclusion arrived at, 
 may be disposed to take an appeal to the Supreme Court; and in tha^ 
 case it will be desirable that this question as well as the others should 
 be presented and settled in the appellate court. 
 
 Having now said all that can be material to a decision of the ques- 
 tion presented, it would have been certainly gratifying if consistent 
 with my views of duty here to pause. But with the hope that it may 
 not be without its utility hereafter, I think it my duty to refer to the 
 unusual and extraordinary course which has been pursued during the 
 pendency of this controversy, having a tendency to create excitement 
 and preoccupy public opinion. Minatory articles have from time to 
 time appeared in the public papers. The consequences of failing to 
 yield to this artificial excitement have been shadowed forth. Various 
 interests and considerations very far from being properly connected 
 with any question of legal right involved in the cause, have been en- 
 listed. A detailed recital of the circumstances referred to, is not
 
 330 CASES IN CHANCERY. 
 
 First Circuit, jggf^gj necessary and would aiford no pleasure. It would have been 
 Atiorney ©asy to have acquired cheap temporary applause by yielding to the 
 ^^"fJ"^' current. But the court has a higher duty to perform. It is bound 
 Michigan, to declare the law as it is, and to vouchsafe to every one his rights 
 under the law without regard to consequences. Whenever the rights 
 of litigant parties shall be surrendered to any such extraneous in- 
 fluences there is an end of all security and of all confidence. 
 
 This is the first time I have had occasion to recur to improprieties 
 of this character. It is painful to do so now, I trust it may never 
 again be necessary. 
 
 The result is, that the motion for the appointment of receivers 
 must be denied. A motion was submitted at the same time for a mo- 
 dification of the injunction, but as the Attorney General expresses 
 his election that it the motion for the appointment of receivers is 
 denied, that the injunction should be dissolved, and as from the views 
 expressed, such must be the final result ; the order will be entered ac- 
 cordingly, except so far as relates to the assigned assets. That pre- 
 sents a distinct question which has not been considered, and the in- 
 junction will be so far retained until the further order of the court. 
 
 rfote. (1.) See " An act to provide for proceedings in Chancery against corporations, and for 
 other purposes." Approved June 21, 1S37. Laws of 18:37, pase 306. 
 
 Ci.) See act No, 58 enii'.leil '• An act suspending certain provisions of law and for other pur- 
 poses " approved April 1-2, lf-41. Laws of 1841, paiic 141. 
 
 {30' See Sec Jiarrmm vs. the Bank of Fonlinr, ante IKi. .lanuary 17, 1842, llie act enlilled 
 ■' An act to repeal ilie suspension act, passed April 12, 1<11 and for other purposes, " was pas- 
 sed and is as follows : 
 
 An Act to repeal the Suspension Act, passed April 12, 1841, and for 
 
 other purposes. 
 
 Section 1. Be it enacted by the Senate and House of Representa- 
 tives of the State of Michigan, That the act entitled "an act suspen- 
 ding certain provisions of law, and for other purposes, passed April 
 12, 1841," be and the same is hereby repealed. 
 
 Sec. 2. All banking institutions of this state shall, immediately af- 
 ter the passage of this act, and at all times thereafter, pay specie for 
 their bills obligatory and of credit, and all bills and notes issued by 
 said banks, on presentation and demand of the same at their counters, 
 during the usual banking hours ; and every failure or refusal so to do 
 shall be deemed coRclusive evidence of insolvency. 
 
 Sec. 3. Any of the banks of this state that shall fail to resume and 
 continue to make specie payments, immediately after the passage of 
 this act, for all their liabilities on demand, shall be deemed insolvents
 
 CASES IN CHANCERY. 3ni 
 
 nnd their charters and all their corporate privileges shall he forfeited ; ^''■*' ^'r'"" 
 and if any such bank shall sell, or in any manner dispose of any of ^„^^,„. 
 its specie or other property of any description whatever, such act shall t;cnerui 
 be deemed fraudulent and void, and the President, Cashier, or other j^^"}jf ''[ 
 officer, aiding in, or assenting to such sale or other disposition of said 
 money or property shall be deemed guilty of felony, and shall be pun- 
 ished by imprisonment for not less than one nor more than five years, 
 at the discretion of the court. 
 
 Sec. 4. Any bank or banks resuming specie payments in pursu- 
 ance of the foregoing provisions shall continue to pay specie for all 
 their bills and liabilities for six months before any dividends of the 
 profits of such institutions shall be made ; nor shall the oflicers of 
 said banks, nor any of them, dispose of any of. their specie for any 
 other property, except for legitimate banking purposes, and any per- 
 son or persons so offending shall be deemed guilty of a felony, and 
 may, upon conviction thereof before any court of competent jurisdic- 
 tion, be sentenced to imprisonment in the State Prison for a term not 
 exceeding five years, or in the county jail not more than one year, at 
 the discretion of the court ; and the Prosecuting Attorney of any 
 county where any bank may be situated whose officer shall violate 
 the foregoing provisions shall cause the offenders to be prosecuted for 
 such offence, and every and all such dividends or disposals shall be 
 deemed fraudulent and void. 
 
 Sec. 5. In all cases where suits have been, or may hereafter be 
 instituted by any bank or monied corporation for the collection of 
 any debt, which may be due to said bank or corporation, in whatever 
 name such suit was instituted, or suits may be instituted, it shall be 
 competent for the defendant to set off the notes of such bank or cor- 
 poration ill discharge of the liability for which said suit was instituted. 
 
 Sec. 6. This act shall take effect and be in force from and after its 
 
 passage. 
 
 Approved January 17, 184'2. 
 
 Noic 4.— 
 
 Sec. 6. Every such bank or branch, shall transmit a statement, un- 
 der oath of its president, cashier, and a majority of the directors, of 
 its true condition, once to every three months, viz : On the first day 
 of January, April. July and October, to the Secretary of State, who 
 shall cause the same to be published in the state paper, and the expense 
 of such publication shall be paid by the banks respectively.
 
 .132 CASES IN CHANCERY 
 
 First Circuit 
 
 Calvin Graves and others, vs. Johnson Niles and others. 
 
 Graves. jj- material facts have occurred subsequent lo (lie eoinmencement of the suit the court will give 
 vs. 
 jViles. the complainant leave to file a supplemental hill, and where such leave is given the court will 
 
 permitoUicr matters lobe inlroiluceJ into the supplemental hill, which might have been in- 
 
 corporaieJ in the original by way of amendment, and this is especially proper, where the 
 
 matter which occurred prior is necessary to the proper elucidation of that which occurred 
 
 subsequent to the tiling of tlie original bill. • 
 
 An application to file a supplemental or amended answer is seldom granted, and never without 
 the utmostcaution, and when a just and necessary case is clearly made out, and it is then gen - 
 erally confined to a clear case of mistake, as to matter of fact, and as lo that only, and the 
 Courtis still more caulious in granting such an application after a considerable lapse of lime 
 from the filing of the bill or original answer in the case. 
 
 AVhere a motion was made to file a supplemental or amended answer in which it was propos- 
 ed to take entirely new ground, and change entirely the character of the defence, and this not 
 upon the ground of any actual mistake in a matter of fact or upon any discovery of new 
 facts, but upon the ground that the defendant did not mean lo be understood to state as he hail 
 stated in his answer, the court denied the motion. 
 
 But where there was doubt in regard to the proi)er application of certain moneys admitted to 
 have been received by the defendant, and the answer was obscure, and there was a 
 possibility that great injustice might be done to the defendant, the court granted an order with 
 reluctance, permuting a separate supplemental answer to be filed, as to this particular, and ex- 
 plaining this ambiguity. 
 
 Where a defendant had leave to file a supplemental answer to explain certain ambiguities in his 
 original answer, and he incorporated other matters of defence in his supplemental answer 
 on motion of the complainant, the supplemental answer was ordered to betaken oft" me files. 
 
 This was a demurrer to a supplemental bill filed by leave of the cour t. 
 A. D. Frasepv in support of the demurrer. 
 
 1. That tlie bill is exceptionable on the ground that the complain- 
 ants have incorporated in it as well matter, which occurred previous 
 to the filing of the original bill, and which might be introduced by 
 amendinent, as things which occurred subsequent to the filing of the 
 original bill, by way of supplement. 1 Paige 200, 3 Id, 294, 4 Id. 
 127; Mitfords PL 165; 17 Vesey, 143. 
 
 2. That the new matters introduced are not material and neces- 
 sary to the complainants in the prosecution of this cause. 17 Veseij 
 143 ; 1 Smiths Pr. 204. 
 
 D. Goodwin, Contra. 
 
 The demurrer in this case should be overruled as frivilous :
 
 CASES IN CriAXCERT. 333 
 
 1. Leave was granted to file this identical bill. Such is the order, F'"t»-''rcuit 
 and it cannot be otherwise construed. The whole proceedings were oruves. 
 one act, to wit : The leave, the filing and the granting ihe injunc- ly^^cg. 
 tion. And if there were ambiguity, the court knew the facts, and 
 
 would so construe it, and would do so even if there were a clerical 
 mistake in the entry. 
 
 2. In the supplemental bill, which contains new matters, after the 
 filing the original bill, other facts previously existing may be intro- 
 duced in connection with the new matter. Such is the general prac- 
 tice. No case has been or can be shown to the contrary. The case 
 cited of Stafford et al vs. Howlelt el al. 1 Paige 200, is with us. 
 The Chancellor says : " If it appears upon the face of the supple- 
 " mental bill that the loliole of the matters charged therein arose pre- 
 "vioustothe commencement of the suit, and that the situation of 
 " the cause is such that they may be introduced into the original bill 
 " by amendment ; the defendants may demur. " 
 
 Tivo things must concur to sustain the demurrer. 1st. The ichole 
 of the matters stated must have existed prior to the commencement 
 of the suit. And 2nd. The situation of the cause must be such that 
 they may be inserted in the original bill by amendment. Letoellen 
 vs. Mackworth 2 Atkyns,A(i ; Baldwin vs. Mackoicn, 3 Atkyns, 817/ 
 2 Mad., 510 ; Cooper 9 PI. 75. 
 
 3. The matters alleged to have previously existed, are merely in- 
 troductory to and explanatory of the new facts, and necessary to their 
 understanding, and the repetition for that purpose of facts stated in 
 the answer. 
 
 4. This demurrer is not, by the Solicitors in the cause. Joy «Sc 
 Porter are the original Solicitors for defendant Nilesof record. And 
 there has been no order for a change. 
 
 The Chancellor. — The principal ground relied on in support of 
 this demurrer is, that the complainants have interposed in the supple- 
 mental bill, matters which occurred prior to the filing of the original 
 bill. The supplemental bill in this ca^e was filed by leave of the 
 court. 
 
 The matters which are stated in the supplemental bill, and which 
 occurred prior to the filing of the original bill, are to some extent
 
 334 CASES IN CHANCERY. 
 
 First Circuit connected with those matters stated as having occurred subsequent to 
 Graves, the filing of the bill and necessary to their proper explanation. If 
 ylics. material facts have occurred subsequent to the commencement of the 
 suit, the court will give the complainants leave[to file a supplemental 
 bill, and where such leave is given the court will permit other mat- 
 ters to be introduced into the supplemental bill, which might have been 
 incorporated in the original, by way of amendment. Stafford et al. 
 vs Howlett ^ West, 1 Paige 200. This is certainly proper, where 
 the matter which occurred prior, is necessary to ihe.proper elucida- 
 tion of that which occurred subsequent to the original bill. 
 
 This bill was filed in pursuance of leave granted, and under this 
 leave it was competent to insert the allegations contained in it. The 
 bill in other respects contains sufficient to sustain it upon general de- 
 murrer. 
 
 Demurrer overruled with leave to answer on the usual terms. 
 
 After the answer had been filed a motion was made on the part of 
 the defendant for leave to file a supplemental or amended answer. 
 
 A. D. Eraser in support of the motion. 
 
 *' Where there is a clear mistake in an answer and proper to be 
 ♦ corrected, the practice is to permit the defendants to file an addition- 
 *' al or supplemental answer. " 4 John's C. R. 375 ; 8 Vesey, 79 ; 
 10 Id. 284, 401; 21 Id. 150 and note ; 22 Id. 255 and note; 1 Dick 
 33, 35, 285 ; 2 TUck. 485 ; 2 Atk. 294 ; 1 Broron, C. C. 418. 
 
 ♦' Where a party has omitted to lay before the court, as he ought, 
 *'a case, admitting a mistake and desiring leave to rectify it, thepro- 
 " per course is to put in an explanatory answer upon which the 
 ♦'court will judge." 19 Vesey 584. 
 
 Where a party is negligently or fraudulently led into a mistake 
 the court will permit him to file a supplementary or additional an- 
 swer. 19 Vesey 628 ; 10 Vesey, 401. 
 
 R. Manning, of counsel argued this motion on the part of the 
 complainants. The defendant's motion should be denied. 
 
 1. The principal facts on which the defendant bases his application 
 are denied by the affidavit of JVIr. Porter. 
 
 2. Two years have elapsed since the defendant filed his answer, 
 and he shows no good reason why he has not applied to the court be-
 
 CASES IN CHANCERY. 335 
 
 fore for what lie now asks. In Curling vs. Marquis Townshend, 19 ^''^'- ^''■cu'i 
 Ves. 623, the Lord Chancellor says, " I dare not in such a case, let Graves 
 it be in fact what it may, lay down a principle, that could form a pre- ^^'^b. 
 cedent for permitting an answer after the lapse of two years, to be al- 
 tered in effect from one end to the other." 
 
 3. The defendant does not specifically slate in his affidavit the 
 whole of the matter he wislies to place upon the record by his addi- 
 tional or supplemental answer as he should have done, to enable the 
 court to judge of the reasonableness of his application. 19 Veseij, 
 631. 
 
 4. The answer of the defendant is clear and consistent with itself 
 and not contradictor)- in any of its material parts. But in connec- 
 tion with the explanatory matter set forth in the defendant's affidavit, 
 it would be vague, uncertain and indefinite. 
 
 5. The answer and explanatory matter taken together, show the 
 defendant to be guilty of a conspiracy with Turner & Collins to de- 
 fraud Hatch, Scrantom & Kimball. 
 
 G. In cases of this description, when the granting of the motion 
 will operate to the prejudice of the complainant, the court will deny 
 the application, unless under very peculiar circumstances, and where 
 the defendant makes out a strong case. Wells\s. WoodlO Fes. 401; 
 Boieen vs. Cross, 4 J. C. R. 375 ; Greemoood vs. Atkinson, 4 Si- 
 mons, 54; Curling \s. Marquis Townshend, 19 Fes. 628. 
 
 The Chancellor. — This is an application seldom granted and ne- 
 ver witl\i3ut the utmost caution, and when a just and necessary case 
 is clearly made out. 
 
 In the case of Boicen vs. Cross, 4 Johnson's Ch. Rep. 375, an 
 amended answer as to a clear case of mistake, as to matter of fact, 
 and as to that only was permitted. 
 
 LordEldon, in the case of Curling vs. the Marquis of Townshend, 
 says^' it would be very difficult even upon negligence unless the par- 
 ity was led into it, to have the records of the court altered, and I 
 "dare not in such a case, let it be in fact what it may, lay down a 
 " principle that would be a precedent for permitting an answer after 
 " a lapse of two years, to be altered in effect, from one end to the 
 '' other. " And he further says, although he has been said to have 
 
 Vol. I. 43
 
 ySG CASES IN CHANCERY. 
 
 First Circuit ^een too liable to hesitation, and doubt in his decisions : " I should 
 Graves. " ^6 sori'y to be thought to have much doubt upon a point of so much 
 NUes. '* importance. " 
 
 What is the case here ? In the fifth folio of his answer the defen- 
 dant says that in July, 1836, he, together with Turner and Collins, 
 the two partners in these transactions met together in Detroit, and 
 that the said Collins then and there sold his interest in all the said par- 
 cels of land above described, and in the joint funds* in the hands of 
 this defendant, as he then informed this defendant, to one A. W. 
 Hatch either for the benefit of said Hatch or for, and on account of 
 Henry Scrantom, and D. F. Kimball of Buffalo, for whom said Hatch 
 was agent, and goes on to state the mode of payment. 
 
 Again in the tenth folio he states that having been informed and be- 
 lieving that said Collins had sold all his interest in said property, and 
 investment to said Hatch or Scrantom & Kimball, &c. He also denies 
 all further interest of said Collins or his assignees in the investment 
 thereinafter mentioned. 
 
 It is now sought by the proposed amendment or supplemental an- 
 swer to take entirely new ground and change entirely the character 
 of the defence, and this not upon the ground of any actual mistake 
 in a matter of fact, or upon any discovery of new facts, but upon the 
 ground that he did not mean to be so understood, and " he intended 
 " merely to state that said Collins had no avowed interest in said in- 
 " vestment and purchases, as it was understood between said Tur- 
 " ner and Collins, that said Turner should take the interest of said 
 " Collins, but upon what secret trust or qualification in favor of said 
 ♦' Collins, this defendant is unable to set forth. " 
 
 This is not very distinctly stated, and perhaps as to thispart of the 
 amendment sought to be made, this would be a sufficient answer. 
 
 But I am disposed to place it upon other grounds. It is entirely in- 
 consistent with the version given in the original answer. There is 
 no mistake of any facts tihown, nor any new discovery suggested. 
 
 From the affidavit of Mr. Porter the answer seems to have been 
 examined by this defendant^ before it was engrossed as well as after- 
 wards, at least with usual care and attention ; and although this de- 
 fendant may possibly have been so unfortunate as to have entirely 
 misapprehended the purport of the answer in this respect, yet regar- 
 
 I
 
 CASES IN CHANCERY. 337 
 
 ding the general interests and rights of suitors, and the proper admin- f^s' circuit. 
 
 istration of justice, it would be establishing a precedent of the most Qf^ves. 
 
 dangerous tendency, after the lapse of two years and after the cir- xiies. 
 
 cumstances and the property may have changed, to permit such a 
 
 change of the record when it may so materially affect the rights of 
 
 the complainants. 
 
 The new aspect sought to be given to the defence strikes me as 
 
 somewhat unfair toward the vendees of Collins, on the part both of 
 
 Niles and Turner ; and the application may not on that account ac- 
 quire any additional claim to a favorable consideration. 
 
 There is one portion of the amendment sought to be made which, 
 however has pressed more strongly upon me. The defendant admits 
 the receipt of $4,995 — on account of, and in full for the proceeds of 
 Hatch's note indorsed by Scrantom & Kimball, and confesses himself 
 liable and ready to account to any person or persons entitled thereto, 
 under the decree of this court. It is very possible that it may turn out 
 that the defendant was entitled to apply this money to the purposes for 
 which this association was formed, either in liquidating liabilities al- 
 ready incurred, or in improving the property according to the origin- 
 al agreement, and if it has been so applied, if the vendees of Collins 
 should be entitled to his proportion of this investment it would be un- 
 just to hold him also to account for the money, under this equivocal 
 expression in the answer. 
 
 But if it has been properly and lawfully expended upon the prop- 
 erty to a portion of which these vendees may be entitled, it does not 
 strike me that this defendant would be estopped by expressing his 
 readiness to account for it to any persons entitled thereto under the 
 decree of this court. 
 
 But as it is possible that great injustice may be done to this defen- 
 dant in this respect, and as he now swears that he meant no more by 
 this expression than tojexpress his readiness to account for the man- 
 ner of his expenditure upon the joint property under the agreement ; 
 and as there is a supplemental bill to be answered, so that the com- 
 plainants will not be delayed thereby, I am disposed, but with some 
 reluctance to permit a supplemental answer to be filed, as to this 
 particular, and explaining this ambiguity, but limiting it to this only ;
 
 338 CASES IN CHANCERY. 
 
 First Circuit. ^,^J ^q ^j^jg extent we are perhaps sustained by the case of Livesey vs. 
 Graves. Willson, 1 Fese?/ ^ Beames, 149. 
 
 Niies. The original answer will remain on file unchanged and the effect 
 
 to be given to either the one or the other, must be reserved until the 
 explanation is before the court. 
 
 Whereupon the following order was entered : 
 
 « 
 
 "Ordered, that leave be granted to said Niles io file a supplemen- 
 tal answer in explanation of that part of his answer now on file, 
 which confesses and acknowledges his liability and readiness to ac- 
 count for the sum of $4,995 to any person or persons entitled there- 
 to, under the decree of this court, but that in accounting for the whole 
 or any part of said money by said supplemental answer, he be re- 
 stricted to showing an application of the money to the purposes for 
 which the association between himself, Collins and Turner was form- 
 ed, either in liquidating liabilities already incurred at the time he al- 
 leges Collins sold out his interest to Hatch, or in improving the pro- 
 perty according to the original agreement that had at that time been 
 purchased for the association, and the efiect to be given to either the 
 original or supplemental answer, is reserved, until such supplemen- 
 tal answer is before the court. " 
 
 A supplemental answer having been filed under this order, explain- 
 ing the ambiguities contained in the original answer, and incorpora- 
 ting other matters of defence ; the complainants moved to take the 
 supplemental answer off the files and upon this motion, the follow 
 ing opinion was delivered. 
 
 The Chancellor. — The grounds of the order permitting this sup- 
 plemental answer to be filed, seem to me to have been distinctly sta- 
 ted. 
 
 The propriety of that order is not now under discussion, but from 
 farther reflection and without reference to this particular case, I am 
 satisfied that a departure from the rule there established, would open 
 a wide door for fraud, and afford strong temptations to perjury ; its 
 inconveniences and dangers are obvious. 
 
 But the question now presented is, does the answer go beyond the 
 order? It manifestly does so. The order was limited to the explana-
 
 CASES IN CHANCERY. 339 
 
 tion of the manner of the expenditure of the 84,995. This answer rirsi circuit, 
 attempts to do inferentially, if not directly what is expressly said it is (Graves, 
 incompetent to do ; to change entirely the attitude assumed in the for- ^i'^^ 
 mer answer. It purports not only to show the expenditure of upwards 
 of $10,000, but to show that this was done on account of, and with 
 the concurrence of those whose interest is denied in the first answer. 
 I am unwilling to deprive the defendant of the benefit of the first 
 order. It is impossible, by expunging a portion of this to leave the 
 answer intelligible, and 1 see no other mode of correcting the error but 
 to grant the motion to take the answer from the file, with leave to file 
 a supplemental answer in twenty days in conformity with the direc- 
 tions given in the former order.
 
 340 CASES IN CHANCERY 
 
 Silas TopLiPFfs. Albert L. Vail and others. 
 
 j,g. ■ As between bona fide creditors of a previous firm and the separate creditors of a partner who 
 Vail. continued tlie business and was the sole visible owner of the property, employed in trade, 
 
 and where the separate creditors had given credit, relying on the properly employed in trade 
 for payment, such creditors should be preferred to the creditois of tlie previous firm. 
 
 The creditors of a partnership have a right to payment out of the partnership effects in prefer- 
 ence to the creditors of an individual partner. 
 
 In the absence of any agreement to the contrary, it is fair to presume that a retiring partner does 
 not intend that the partnership property shall be used for the individual benefit of a partner 
 who continues the business, leaving the debts in the firm unpaid ; and this was held to be th e 
 presumption where the retiring partner transferred the partnership effects to a partner contin- 
 uing the business, who agreed to pay the partnership debts and gave bond to that effect. 
 
 The bill m this case states that the complainant, and defendant 
 Albert L. Vail, being copartners June 25, 1840, dissolved. That 
 the complainant sold out his interest in the copartnership property to 
 said Vail, and received from Vail his pay therefor, and that Vail at 
 the same time executed to the complainant a bond in the penal sum of 
 $5,000, conditioned that said Vail should pay all the partnership debts. 
 Alleges that Vail has since fraudulently transferred the partnership 
 effects for the purpose of preventing their application to the payment 
 of the partnership debts ; that Vail had absconded, &c. Bill prays that 
 the partnership property be applied to the payment of the partner- 
 ship debts for which the complainant is liable. 
 
 Upon this showing an injunction was granted, and the defendants 
 moved to dissolve the injunction for want of equity in the bill. 
 
 R. Manning, In support of the motion, 
 
 The sale changed the copartnership property into the individual 
 property of Vail. It was no longer the property of the copartner- 
 ship, but the property of Vail who had purchased out the interest of 
 his copartner. Exparte Ruffin6 Ves. 119. Exparte Fell 10 Ves. 
 347, Exparte Williams, 11 Ves. 3. 
 
 This is a case of one copartner selling his interest in the firm to 
 another who is to continue the business on his own account. It is 
 not a dissolution of the copartnership and a placing of its effects in 
 the hands of one of the copartners to pay the debts and wind up the
 
 CASES IN CHANCERY. :541 
 
 business ; when that is the case, the ownership of the property is f''"''* Circuii 
 not changed, but what was copartnership property at the dissolution 'j.(,,,ijfl-. 
 continues to be such until it is used to pay the debts or a division of it vuii 
 is made. The individual left in possession of it holds it in trust for 
 that purpose. The case of Deveau vs. Fowler, 2 Paige 400, is a 
 case of this description. On no other principle can it be reconciled 
 with the cases in Vesey. The cases we have cited were not decided 
 by Lord Eldon on any principle of law peculiar to the Bankrupt law 
 of England. 
 
 The facts in the case of Deveau vs. Fowler are not fully stated 
 by the reporter. It appears from the case that '-on dissolution of the 
 copartnership it was agreed that the defendant should take all the 
 stock and effects, and pay off all the debts due by the firm, and in- 
 demnify the complainant against the same." It does not appear in 
 that case as in this, that the complainant received any thing for his 
 interest in the copartnership effects, or that he took a bond from the 
 defendant for the payment of the copartnership debts, or that the co- 
 partnership properly was left with the defendant with a view to his 
 continuance of the business. The only inference to be drawn from 
 the case is, it would seem, that the defendant was to pay the debts 
 with the copartnership effects, which were to be used for that pur- 
 pose and no other. This appears to have been the light in which 
 Chancellor Walworth viewed the facts in that case, for he says : — 
 "The fair presumption in the absence of any express agreement to 
 the contrary, therefore, is, that it was not the intention of the com- 
 plainant that the effects assigned to the defendant should be appro- 
 priated to the private use of the latter, leaving the debts of the firm 
 unpaid." 
 
 "See also Collyer on Partnership 91 ; Id 504= io 509. 
 
 Baker & Millard contra. 
 
 It is alleged as the ground of this motion, that the sale by Topliff 
 to Vail converted the partnership property into individual property, 
 and that thereafter the complainant had no lien or equity to demand 
 that the property should be appropriated to the payment of partner- 
 ship debts. 
 
 We think it clear that such was not the effect of the transaction.
 
 -342 CASES IN CHANCERY. 
 
 Fifth Circuit rpj^g ^jjj ^^^^Q^ he sold and assigned the partnership effects. But 
 Topiifl-. this was upon the agreement of Vail to pay the debts of the part- 
 Aaii nership. This was an entire transaction. 
 
 Vail was to lake the property and pay the debts, and any surplus 
 that might remain was to belong to him. 
 
 Toplitr received no security for the payment of the debts, and his 
 ' indemnity against them, except the agreement and individual res- 
 ponsibility of Vail, which agreement was a cdndition of the sale. All 
 that Vail would be entitled to under this arrangement would be the 
 surplus after paying the debts of the firm. 
 
 The cases cited in support of the motion Exparte Rufn, Exparte 
 Fell, Exparte Williams, Sfc, are none of them like this. They are 
 all Bankruptcy cases, where the question arose not between the part- 
 ners, but between the joint creditors of the partners, and the separ- 
 ate creditors of the Bankrupt partner. In Ruffin's case (and all 
 the others are similar) one of the partners sold out to the other and 
 retired from the business — the latter agreeing to pay the debts, &c. 
 The purchasing partner continued the trade for a year and a half, 
 and then became bankrupt. The joint creditors presented a petition 
 praying that the partnership effects remaining in specie might be ap- 
 • propriated to the payment of the partnership debts in preference to 
 the separate creditors of the bankrupt. Ab between them the ques- 
 tion was materially different from the question between the parties 
 to this suit. 
 
 In the first place there was no pretence o? fraud or bad faith in 
 that case, in any quarter ; whereas fraud and bad faith on the part 
 of the defendants in the suit, form the very foundation of this ,puit. 
 It is admitted by counsel against the petition in Ruffin's case, that 
 fraud would vitiate all transactions of this kind ; but his claim was 
 placed on the ground that there was no fraud in the case. And also 
 on the ground that to admit the claim of the petitioners and to give 
 the joint creditors a lien on the property after a sale, and after the 
 trade had been continued for years by the purchasing partner (and 
 in that case it had been with the knowledge of the joint creditors,) 
 would operate unjustly and as a fraud upon the separate creditors of 
 that partner, who were presumed to have given credit to him upon
 
 CASES IN CHANCERY. 343 
 
 the failk of n-hal they saw as separate property; the purcliasing part- F'^hCircuu 
 ner being the risible owner. In this case there are no seperate ere- lopi.ir. 
 ditors, and therefore no such equities exist, Vaii. 
 
 The decisions in the cases cited all evidently turn upon the con- 
 struction given to a certain provision in the Bankrupt Act 21 James 
 1, cli 19, sec 10 and 11, by which all the property which remains in 
 the possession, order and disposition of the bankrupt at the time of 
 the bankruptcy, is made to pass by the assignment to the assignee. 
 See Jones vs. Gilhons, 9 Vcsey 407. See also the case of Shake- 
 shaft <^aZ. cited by Mr. Mansfield in Ru din's case, in which Lord 
 Thurlow said that he could not take accounts between the respective 
 partners, but finding the effects in the hands of one, 7i'hatever might 
 be the demands of the others, or the consequence to the joint credit- 
 ors, the goods were the separate property of that one and must be 
 applied to his separate debts. In that case the bankrupt partner hap- 
 pened by accident to have the property in his hands — there had been 
 no purchase or payment by him. So far was the provision in the 
 bankrupt act referred to, held to extend. 
 
 But even in thecase of Ruffin, notwithstanding it was a bankruptcy 
 case, and notwithstanding this statute, the Lord Chancellor does not 
 express a decided opinion. He denies the relief sought on the peti- 
 tion, because it was a matter of douht, whether they were entitled to 
 it, and therefore that it wonld be better to leave the parties to file a 
 bill. 
 
 Ex-jmrte Fell, 10 Vesey 347, differs but little from Ruffin's case, 
 except that the retiring partner received security for his indemnity, 
 and for the payment of the debts, besides the agreement and individ- 
 ual responsibility of the remaining partner. His equities upon the 
 property would therefore be less strong than in Ruffin's case. 
 
 But another thing that renders those cases unlike the present, is 
 that the petitioners were the crerf«7ors of the partnership, and they 
 had another remedy, for the selling partners were solvent, and 
 they could collect their debts of them. 
 
 We rely on the case of Deveau vs. Foider, 2 Paige 400, and on 
 
 the case of Smith vs Haviland Sf Field there cited.. These cases 
 
 are precisely in point, and the hrmer is identical with this in almost 
 
 all its circumstances, so far as this branch of the case is concerned. 
 Vol. I. 44
 
 344 CASES IN CHANCERY. 
 
 Fifth Circuit Ti^g great difference between this case and also the one in Paige and 
 '"'Q^^ the cases in Vesey &c., is that in the latter the question was between 
 Vail, bona fide creditors, and the rights of bona fide holders of property 
 were to be affected ; whereas in these no such rights are to be affec- 
 ted so far as appears upon the bill, and the suit is against a partner 
 fraudulently seeking to smuggle the property and to appropriate it, 
 not to pay his separate creditors, but to % oitm use, and against oth- 
 ers fraudulently conniving with and aiding him in this object. The 
 equities therefore in the two classes of cases, without reference to 
 the provisions of the bankrupt act, are widely different. 
 
 It was urged by the counsel in support of the motion, that the facts 
 were not fully stated in the Deveau case. But of this there is no ev- 
 idence. It was said that it was unlike this case because it does not 
 appear that the vendor received any thing for his interest. But this 
 is immaterial ; he received a covenant of indemnity against the 
 debts, and this would be a sufficient consideration for the transfer and 
 sale, whether there was any thing paid or not. 
 
 It was also said that no reference was made either by counsel or 
 the court in the Deveau case to the cases in Vesey, and from this an 
 inference was drawn that the facts were dissimilar. But this cir- 
 cumstance is susceptible of a much more satisfactory explanation- 
 There are much later cases than those in Vesey, in the English Re- 
 ports, entirely similar, and in which the same decision had been 
 made ; and to these later cases reference was made by the court 
 What cases were cited by counsel does not appear. 
 
 But there is another branch of this case left out of view by the 
 counsel for the motion. The equity of the bill does not rest alone 
 in the equitable lien of the complainant as a partner on the partner- 
 ship property. It rests also upon the liability of the complainant to 
 pay the debts, upon the fact that the defendant, Albert L. Vail, is 
 legally and equitably bound to the complainant to pay them and 
 save him harmless, upon ihe fraud of Vail in assigning and disposing 
 of his property and himself absconding, so as to deprive the complai- 
 nant of all remedy at law. 
 
 Certainly these peculiar circumstances would give a court of equi- 
 ty, jurisdiction of the case, and would entitle the complainant to come 
 into court and obtain a discovery and relief, even though there were
 
 CASES IN CHANCERY. 845 
 
 none of the partnership property left, or though there had been no '^''^'' '-'"''^"' 
 partnership. He would be entitled to come in and file his bill for TopUff. 
 the purpose of setting aside this fraudulent conveyance, and obtain vaji. 
 an injunction against removing or disposing of the property — partic- 
 ularly as both the assignor and assignee are out of the jurisdiction of 
 any court of law of this State. 
 
 The Chancellor. — I can see no well founded distinction between 
 this case and the case of Deveau vs. Fowler, 2 Paige 400. 
 
 The cases cited from Vesey, I am inclined to think stand on a dif- 
 ferent ground. 
 
 As a question between bona fide creditors of a previous firm and 
 the separate creditors of a partner who continued the business, and 
 was the sole visible owner of the property employed in the trade, I 
 should concur in the view that where the separate creditors had given 
 credit relying upon the property employed in the trade for payment, 
 they should be preferred to the creditors of the previous firm. But 
 no such question arises here as the case now stands. The whole 
 transaction is alleged to be fraudulent. 
 
 That the remaining property of this firm has been fraudulently- 
 transferred, and without consideration to prevent its application to 
 the payment of the partnership debts ; and this for the purpose of 
 this motion must be considered as admitted. 
 
 The creditors of a partnership have a right to payment out of the 
 partnership effects; in preference to the creditors of an individual 
 partner. 
 
 In Deveau vs. Fowler, the partnership effects were transferred to 
 the partner continuing the trade, and he agreed to pay the partner- 
 ship debts, and that is this case. The circumstance of taking the 
 individual bond or guarantee of this partner does not vary the case. « 
 
 I think the Chancellor was right in the last mentioned case, in say- 
 ing, that in the absence of any agreement to the contrary, it is the 
 fair presumption that the retiring partner did not intend that this pro- 
 perty should be used for his individual purpose, leaving the debts of 
 the firm unpaid. This case as it now stands is stronger than the case 
 of Deveau vs. Fowler. 
 
 Here it is alleged that Vail has fraudulently transferred the assign-
 
 346 CASES IN CHANCERY. 
 
 First Circuit gd effects for the purpose of preventing their application to the pay- 
 To litr- "^snt of the partnership debts, and that he has absconded. 
 
 The complainant does not ask that the partnership property shall 
 be reconveyed to him, but applied to the payment of the partnership 
 debts, for which he is liable. If the goods were in the hands of a 
 hona fide purchaser, it would present a very different case. 
 Motion denied. 
 
 vs. 
 \ail.
 
 CASES IN CIIANCKRY. :M7 
 
 Richard Suydam and others, rs. Antoixe Dequindue, Petkr .T, 
 
 Desnoyers and others. 
 
 First r'iri'iiil 
 
 Suydam. 
 
 Where a bill was filed by a ccsiiii que trust to set aside adecd of assignment as fraudulent, Dequiudre. 
 or to enforce the Irusi: upon demurrer to the bill, it was held that it was not necessary to make 
 a company parlies defcndiinig, whose riglits accrued prior to the execution of the deed of as- 
 sigriiucm, aud were set fortli in tile instrument of assiguiiient whicli was recited iii the bill, 
 and that If a sale of the assijined i)roperty should become necessary, it must be sold subject to 
 the rights of the company. 
 
 Where several persons were named us creditors in a deed of assignment for the benefit of cred- 
 itors, and a bill Was filed liy some of the creditors, for whose benefitthe assignment was made 
 to set aside the assignment as fraiuhilciu, or enloruc the iriisi, and ilic bill set out the assign- 
 ment, and staled that all the debts due to llip creditors named in il, cxceiit the complaiiianls 
 had lieon paid up and cxlingiushed; ujion demurrer to the hill, it was held that it was not ne- 
 cessary to raakc those persons whose debts were stated to have been paid and satisfied parlies 
 to the bill. 
 
 A . on the 21th day of October, 1?"C made an absolute assignment of certain real and personal 
 esUitc to 1)., for the purpose of paying his debts as designated in schedules attached lo the 
 deed of assignment, directing the trustee to sell all the property assigned at private or pulilic 
 sale within two years, and D. Iiavinj; accepted the trust by signing the deed, but never hav- 
 ing taken possession of tlic properly, or sold or disposed of any iiart thereof, or done any 
 thing towards carrying theobjecls of the trust into execution within the two years, upon a 
 hill filed by S. and others, creditors of A., and for whose benefit in part, the assigmncnl was 
 made for the purpose of coercing the application of llieproi)erly assigned to the purposes ex- 
 pressed in the deed of trust, or have the same set aside and vacated ; it was held that the bill 
 Was not prematurely filed, and that the complainants liad a right lo institute proceedings in 
 this court to enforce the execution of the trust or set aside llie deed. It was further held ilial 
 the deed of trust being absolute in its terms, and tlie trustee having accepted tlie trust, the pro- 
 perty assigned was dedicated to the purposes of the trust, although the deed was made willi- 
 out the knowledge or concurrence of the cestui que trust. 
 
 Where the conveyance is absolute, vesting the property in the assignee, no express assent of 
 a cestui que trust is required. The relation of trustee and cestui que trust is constituted at 
 once on the execution of the deed, and cannot afterwards be revoked except upon tlic ex- 
 press dissent of the cestui que trust. 
 
 Bill filed by creditors to set aside a deed of assignment on the 
 ground of fraud, or to enforce the execution of the trust under the 
 deed. 
 
 To this bill the defendants demurred. 
 
 A. D. Fraser in support of the demurrer. 
 
 E. C. Seaman contra. 
 
 The Chancellor. — The first point made in support of the demur-
 
 348 CASES IN CHANCERY. 
 
 First Circuit j.gj. jg^ i\^^i \\^q tjj-jiQ limited in the deed of assignment for closing the 
 Suvdain. ^^^^^ ^^.d HOt expired at the time of filing the bill in this cause. The 
 Dequfndre. deed of assignment was made on the twenty-fourth day of October, 
 eighteen hundred and thirty-six ; the time limited for closing the 
 trust expired on the twenty-fourth day of April, eighteen hundred 
 and forty, and the bill was filed on, the ninth of March, eighteen 
 hundred and forty. 
 
 The bill alleges that the assignment was fraudulent, and it is fur- 
 ther alleged that the trustee up to the time of filing the bill had ne- 
 glected to take possession of the property, or to take any steps to- 
 wards executing the trust, and had declared his intention not to ex- 
 ecute it. The demurrer cannot be sustained on this ground. The 
 complainants who are judgment creditors were authorized under these 
 circumstances and before the time had expired for closing the trust 
 to resort to this court either for the purpose of setting aside the as- 
 signment or to procure the aid of this court to compel an execution 
 of the trust. Other causes of demurrer were suggested ore tenus : 
 I First, that the Detroit and Pontiac Rail-road Company should have 
 been made parties. I think this was unnecessary. Their rights ac- 
 crued prior to the execution of the deed of assignment, and are set 
 forth in that instrument which is recited in the bill, and if a sale of 
 the premises shall become necessary, they must be sold subject to 
 the rights of the company. Eagle Fire Company vs. Lent et. al. 6 
 Paige 635. It is also urged that several persons who were named 
 as creditors in the assignment are not made parties to the bill ; as to 
 all those persons it is alleged in the bill that the debts due to them 
 have been paid and extinguished. This is sufficient upon de- 
 murrer. If the allegations in the bill in this respect prove -rt-ue, it 
 was not necessary to make them parties. The other objection is 
 that James Boyd, Jr., should have been made a complainant instead 
 of a defendant. It would seem to rae to have been preferable if the 
 bill had been so framed, but he has been made a party and the court 
 will be able to settle and adjudicate on his rights in the case, under 
 the present bill. It is merely a technical objection and not sufficient 
 to sustain the general demurrer. 
 
 Demurrer overruled and leave to answer.
 
 CASES IN CHANCERY. :mO 
 
 The defendant Dequindre put in an answer denying all fraud and First circuit. 
 
 claiming the right to revoke the deed of assignment on the ground v^^j,,.,,,, 
 
 that the creditors were not parlies or privies to the deed and never Daiuiudrc 
 
 claimed any benefit under it until about the time of filing the bill 
 
 in this case. 
 The complainants' solicitor moved for the appointment ofareceiver. 
 
 E. C. Seaman, in support of the motion. 
 
 1. The deed from Dequindre to Desnoyers created a trust which 
 Desnoyers accepted by executing the deed and putting the same on 
 record. See Jereiny's Eq. 129. 
 
 The transcript of the record certified is evidence of itself of the 
 contents thereof and of the due execution of the deed. R. S. 261, 
 Sec. 31 Lmvs of ISiO, 167, Sec. 6. 
 
 2. Desnoyers having accepted the trust was bound to execute it 
 faithfully, and a court of equity has power to enforce its execution 
 in behalf of the cestui que trust, 2, Story's Eq., 303-4 Jeremy's Eq. 
 20, Sands vs. Codioise 4 Johns. Rep., 536, and if the trustee dies 
 or is incompetent or refuses to act, or if there has been an omission 
 to appoint one, the court will appoint. Jeremy's Eq., 20, 163. 
 
 In this case Desnoyers ut terly refused to act as trustee before the 
 bill was filed, and the time within which he was authorized to sell 
 expired in April, 1840, and he is now a naked trustee holding the 
 legal title without the power to sell. 
 
 3. As Desnoyers has refused to act and his power to act has ex- 
 pired, a receiver should be appointed to collect the rents and profits 
 for the benefit of the creditors as well as to take charge oi the prop- 
 erty. 
 
 In all cases where there is danger of trust property being squan- 
 dered, a court of equity will appoint a receiver. 2 Story^s Eq. 130 
 132. sec. 827 to 829, 836 ; Jeremy's Eq. 174, 248, 2 Madd. Ch. 
 189, 12 Vesey 4, Hart vs. Crane! Paige 37. 
 
 4. Desnoyers as well as Dequindre is liable for the rents and 
 profits of the trust property accruing since the execution of the trust 
 deed, and should be ordered to pay the same forthwith to a receiver 
 for the benefit of the creditors. Sands vs. Codwise 4 J. R. 536; 
 Id. 604-5 ; and a court of equity will hold a trustee responsible for 
 the consequences of a breach of trust whether he derives any ben-
 
 •350 CASES IN CHANCERY. 
 
 rir.i Circuit gjQt from it or not. 2 Madd Ch 113 ; Adams vs. SJimo, Sc/ioales Sf 
 ^i^ hefroy 272 ; 17 Ves. 489 ; 2 Story's Eg., Sec. 1268-9, Id. 1275-6, 
 
 Uerjuiiidre 2^^^ ^^^ ^^ 518. 
 
 A court of equity will also hold a trustee responsible for losses re- 
 sulting from a wilful default. Osgood vs. Franklin, 2 John Ch. R. 27. 
 And where a trustee keeps a trust fund in his hands for a year and 
 omits to pay over the proceeds the court will charge him with inter- 
 est. Gray vs. Thomfson, 1 Johns Ch. R. 82. 
 
 A. D. Fkaser, contra, 
 
 1. The deed was executed without the privity of any of the cred- 
 itors, they are not parties thereto, nor ever assented to it, or until 
 now claimed the benefit of it, and it was without any consideration. 
 He may therefore revoke it. 
 
 Where a person does loithout the privity of any one., without recei- 
 ving consideration, and without notice to any creditor himself make 
 a disposition as between himself and trustees, for the payment of his 
 debts, he is merely directing the mode in which his own property 
 shall be applied for his own benefit, and that the general creditors 
 or those named in the schedule are merely persons named there for 
 the purpose of shewing how the trust property under the voluntary 
 deed shall be applied for the benefit of the volunteers. Garrard vs. 
 Lord Lauderdale 2 Sim. Ch. R. 1, (S. C. 5 Eng. Ch. Cand, 1;) 
 Walwynvs. Coutts, 3 JVier. 707, ('iS. C.3 Simons 14; S. C. 5 
 E7ig. Cond. Ch. 7. 
 
 The deed in this case was a voluntary deed. ,* 
 
 Dequindre was dealing with his own property for his own person- 
 al benefit and accommodation in paying his creditors as he thought 
 proper. Page vs. Broom 4 Russell 6, (S. C. 3 Eng. Ch. Cond. 543.^ 
 The creditors never submitted or assented to take the benefit of the 
 deed, or conformed to its terms, or abstained from sueing him in con- 
 sequence. 2 Sugden, 187, 2 Chitty's Eq. Dig. 1181. 
 
 If property be conveyed by a debtor in trust for the benefit of 
 creditors who are neither parties nor privy to the deed, the deed 
 merely operates as a po?ver to the trustees to apply the property in 
 payment of debts, and such power is revocable by the debtor. Acton 
 is. Woodgatc^ Mylne ^' KeeneA9'2. (S. C. 8Evg. Ch. Cond. 97.;
 
 CASES IN CHANCERY. 3-51 
 
 2d. If the creditors are entitled to any benefit under the deed of ^'"' *-'"''^"" 
 assignment, the remedy is at law, as there is a covenant on the part suydam. 
 of Desnoyer to execute the alleged trust. Uequiiidre. 
 
 Equity has cognizance only of executory trusts not (as to trusts) 
 of those executed, or where trusts can be enforced at law there must 
 be some act to be done by the trustee. Baldwin 407. 
 
 It cannot sustain a suit at law on an equitable right, only adjudge 
 a remedy appropriate only to equity. 
 
 To sustain a suit in equity on a mere legal right for which the 
 law affords a complete remedy. Ibid. 407, 2 Cr. 444. 
 
 If a trust is made and no agreement to execute it, the trust is in 
 equity, but if there is, it is to be enforced at law. Ibid. 422. 
 
 3d. Even if complainants should be entitled to relief and this 
 should be the competent mode, yet it is insisted that this bill was pre- 
 maturely filed — the bill being filed on the 9th March, 1840, although 
 the alleged trust did not expire till 24th April, 1840. 
 
 A plaintiff must have the right he asks when he puts his bill up- 
 on the file. 4 Russell 35.5. S. C. bEng. Cli. Cond. 4. 
 
 4. In any stage of the case the want of equity is fatal. Bald- 
 win 416, 
 
 December 7, 1841. 
 
 The Chancellor. — On the twenty-fourth day of October, 1836, 
 Dequindre, one of the defendants in this cause, made an absolute 
 assignment and conveyance of certain real and personal estate to 
 the defendant, Desnoyer, for the purpose of paying his debts, as des- 
 ignated in schedules attached to the deed of assignment. 
 
 The directions in the deed of assignment were, that the trustee 
 should sell at private sale, and that such portions of the property as 
 should not have been sold at the end of eighteen months should be 
 sold at public auction within two years thereafter. Among the cre- 
 ditors who were directed to be paid from the proceeds of such sale, 
 were the complainants in this cause. 
 
 Desnoyer accepted the trust expressly was a party to and signed 
 and sealed the deed of assignment at the time it was executed ; but 
 as appears from the bill and the answers in the cause, has never 
 either taken possession of the property or sold or disposed of any 
 
 Vol. I. 45
 
 352 CASES IN CHANCERY. 
 
 First Circuit part Qf jj.^ qj. indeed done any thing towards carrying the objects of 
 Suydam ^'^^ ^'"'^^^ ^^^^*^ execution. The two years within which he was to 
 
 Dequtntire. ^avo closed the trust, by sale at auction, of whatever should not have 
 been sold at private sale, expired on the twenty-fourth of April, 1840. 
 On the ninth of March, 1840, this bill was filed for the purpose of 
 either coercing the application of this property to the purposes ex- 
 pressed in the deed of trust or to have it set aside and vacated. A 
 preliminary objection was made that this bill was prematurely filed ; 
 but I have no doubt that after so long a time had elapsed and after 
 the trustee had refused to proceed in the execution of the trust, the 
 complainants could institute proceedings to set aside the deed, or com- 
 pel the execution of the trust. 
 
 But this motion is resisted principally on the ground that the deed 
 of trust was voluntary, that the creditors were not parties to it, nor 
 ever assented to it, and have not, until now, claimed the benefit of 
 it ; and therefore that Dequindre may revoke it. There is an ap- 
 parent, and perhaps an actual conflict of the authorities on this sub- 
 ject. 
 
 The case of Wahoyn vs. Coutts, 3 Merivale 707 seems to be 
 the case referred to in subsequent decisions as the basis of this doc- 
 trine. In that case the deed of trust was voluntary and without the 
 knowledge of the creditors, and before assent had been expressed or 
 any rights acquired ; new deeds had been made materially varying 
 the trust, and in fact in substance revoking the first deed. The case 
 of Garrard vs. Lord Lauderdale 3 Sinions 1 maybe distinguished from 
 the case under consideration. It was an indenture of three parts, the 
 grantor, the trustees and the creditors. The creditors had not exe- 
 cuted the deed, and before the bill in that case was filed or any as- 
 sent expressed, a different disposition had been made of the proper- 
 ty, and the assignment in fact revoked. Some other cases have been 
 referred to to sustain this proposition. 
 
 On the other hand the cases are numerous, affirming a contrary 
 doctrine, or if not directly adverse, at least difficult to be reconciled 
 with the cases before referred to. 
 
 In Cumberland vs. Coddington 3 J. C.R. 261, it is said that where a 
 trust was created for the benefit of a third person, he may affirm the
 
 CASES IN CHANCERY. 353 
 
 trust and enforce its execution. It has also been held that when the deed ^''^''' Circuit 
 of trust is absolute in its terms, the assent of the creditors is not re- yuvdum 
 quired, that the relation of trustee and cestui que trust was at once DcquVndre. 
 constituted so that the assignor could not recall the deed. Ellison 
 vs. Ellison, 6 Vesey, G5G. Many other cases may be referred to 
 sustaining this ground. Without undertaking to reconcile the cases 
 of VValvvyn vs. Coutts, and Garrard vs. Lord Lauderdale, with the 
 cases last above referred to, (and it seems to me it would be difficult 
 entirely to do so ;) it is sufficient to say that those cases differed in 
 many essential particulars from the other class of cases and also from 
 the one under consideration. 
 
 The deed in this case is absolute in its terras ; no assent of the 
 creditors is required. Desnoyer, the assignee, positively and express- 
 ly accepted the trust. The property is in fact dedicated to the pay- 
 ment of the debts of these, among other creditors. Before filing the 
 bill a portion of the creditors require the trustee to proceed in the 
 execution of the trust, which he declines to do. The deed of trust 
 is not revoked. No step of that kind is taken or intimated. The 
 creditors find themselves estopped by this deed from collecting their 
 debts by the ordinary course of proceedings at law, and the proper- 
 ty remains sheltered and locked up in the hands of the assignee. 
 
 Under this state of things there can be doubt that it is the duty of 
 the court to enforce the execution of the trust or to set aside the as- 
 signment as intended to hinder and delay creditors. The provisions 
 of the assignment are fair and equitable and such as there can be no 
 objection to carrying into effect. 
 
 I am disposed to take the ground that where the conveyance is ab- 
 solute, vesting the property in the assignee, as in this case, no express 
 assent of the cestuis que trust is required — and while the property re- 
 mains unchanged, the cestuis que trast although the instrument, was 
 made without their concurrence, may require and coerce the execu- 
 tion of the trust. I am inclined to the opinion that the relation of 
 trustee and cestuis que trust was constituted at once on the execution 
 of the deed and that it could not afterwards have been revoked or 
 varied except upon the expressed dissent of the cestuis que trust. 
 As to whether the trustee shall be required to proceed and execute
 
 354 - CASES IN CHANCERY. 
 
 First Circuit, the tfust, oi' a receiver be appointed I have had some hesitation, but 
 sj , as it it seems that the trustee on being required refused to proceed 
 Dequfiidre ^^ ^^® execution of the trust, and states that he accepted the trust only 
 on condition that he should not be required to devote his personal at- 
 tention to this business, it will be necessary that a receiver should be 
 appointed over whom the court can exercise a direct control. 
 
 I shall at present limit the order to the appointment of a receiver 
 to receive the rents and profits of the assigned property, and as the 
 amount of debt has not been precisely ascertained, it will be neces- 
 sary that a reference should be made to ascertain the amount still 
 unpaid. And as it cannot now be ascertained how much of this prop- 
 erty it will be necessary to sell, the directions as to the amount to be 
 sold and the manner in which it shall be sold will be reserved until 
 the coming in of the i-eport. 
 
 Order accordingly.
 
 CASES IN CHANCEUV ^ 35r> 
 
 Joel L. Ankrim vs. Samuel D. Woodworth. 
 
 Firsl Circa it 
 
 Where the transactions staled in the bill by which certain notes were obtainei, presented a case Ankrim. 
 of fraud, although, from the case made, it was doubtful whether the complainant could WoodworUi, 
 defend successfully the full amount of the notes, and a general demurrer was interposed: 
 
 ' the court refused to sustain the demurrer, and required the dcfendaut to answer. 
 
 In cases of fraud where it is doubtful wheUier the defence would be good at law, the Court of 
 Chancery will retain jurisdiction. 
 
 Bill to annul and set aside a contract and to compel certain notes 
 to be delivered up and cancelled. States that in February, 1839, com- 
 plainant entered into an agreement with deiendant to purchase cer- 
 tain lands which the defendant represented as belonging to him, as 
 being good lands situated near a mill with some thirty acres cleared 
 or improved land. That in the spring of 1840 complainant execu- 
 ted to defendant three several promissory notes for fit^ty dollars each, 
 payable in six, twelve, and eighteen months, in consideration that de- 
 fendant would cancel and destrd^^ the agreement to purchase; that 
 soon after he had executed the notes he ascertained for the first time 
 that defendant had no title to a part of the lands contracted to be con- 
 veyed, that there was no clearing or improvement as represented, 
 and that the lands were entirely different from what they were repre- 
 sented to be, and that there was no other consideration for the notes 
 except as above stated. 
 To this bill the defendant demurred. 
 
 A. Davidso.v, in support of the demurrer. 
 
 J. S. Abbott, contra. 
 
 The Chancellor. — The principgrou nd relied upon in support 
 of the demurrer is that the facts stated in the bill would constitute a 
 good defence at law. 
 
 The transactions stated in the bill by which the notes were obtain- 
 ed, present a case of fraud, and for the purpose of this argument are 
 admitted by the demurrer. It may perhaps be doubtful whether the 
 complainant could defend successfully for the full amount of the notes- 
 
 In the case of Hamilton vs. Cummlngs, 1 Johii's Ch. Rep. 523, the
 
 356 CASES IN CHANCERY. 
 
 First Circuit. j.^_,jg jg gjatecl to be, that in cases of fraud where it is doubtful wheth- 
 Ankriiii. ^r the defence would be good at law, the Court of Chancery will re- 
 Woodworth tain jurisdiction. And a still stronger case is cited from Peere Wil- 
 liams, where the Lord Chancellor cancelled a bond without sending 
 the parties to law, although he was inclined to think the bond void at 
 law as well as in equity. 
 
 There is another reason for retaining jurisdiction in this case, as 
 the comploinant is liable to be harassed with a series of suits upon 
 these notes, confessedly fraudulent under the case made by the bill, 
 and this too perhaps after the witnesses may be bej'ond his reach. 
 Demurrer overruled with leave to answer.
 
 CASES IN CHANCERY. 357 
 
 Edwin Jerome vs. Charles Seymour. ^"^' circun 
 
 Wlirrc A. executes a mortgage to B. ami then sells the inortgiigcil premises to C, subject lo the 
 morlsage. and under an agreement that C shall pay certain notes secured thereby, and B then 
 executes to C. a quit claim deed of the mortga'.'ed premises, the premises arc discharged from 
 the mortgage ; and the eftect is the same, where the mortgage lias been assigned by the orig- 
 inal mortgagee to a third person. 
 
 The bill in this case states that on the 20th December, 183G, Cy- 
 rus Shepherd executed to Horace R. Jerome two notes : one for $240 
 payable in one year, the other for S240 payable in two years ; on 
 the sixteenth January, he executed to said Jerome a mortgage to se- 
 cure the notes. 
 
 That on the 2nd of April, 1838, Horace R. Jerome sold and as- 
 signed the notes and mortgage to complainant, for the consideration 
 of {^500. It then states that February 23rd, 1837, Charles Sey- 
 mour purchased the mortgaged premises from Cyrus Shepherd, and 
 they were conveyed, subject to the mortgage. That Seymour paid 
 no consideration, except the notes and mortgage. 
 
 And complainant prays a statement of all the facts of the conside- 
 ration. That immediately previous to the purchase. Shepherd, H. 
 R. Jerome and Seymour were the joint owners, and they were jointly 
 building a saw mill. After the sale, Seymour owned two-thirds, and 
 H. R. Jerome one third, and they continued on with the work in 
 1837. 
 
 That Seymour, with intention to defraud H, R. Jerome, pretended 
 lo him that his deed of the mill properly was defective, and desired 
 said Jerome to make out a quit claim, for the purpose of correcting 
 errors and without intending to afTect the mortgage and deed execu- 
 ted February 27, 1837. 
 
 Complainant states that Seymour paid no consideration, and it was 
 not supposed by said Jerome that deed would operate to release the 
 mortgage, and that if Seymour procured the deed for such purpose, 
 or supposed it would elFect such purpose, he fraudulently concealed 
 the same from said Horace. That Seymour, both, before and after- 
 wards promised Jerome he would pay the notes, and in the fall of
 
 358 CASES IN CHANCERY. 
 
 Fifth t'licuit ig3Y^ Seymour stated he had advanced more than his share towards 
 
 Jerome, the mill, and being so in advance, ought not to pay interest on said 
 
 Seymour, notes unless he had interest on the balance due him, and Seymour 
 
 claimed a written stipulation, which Horace then gave him, not to 
 
 charge interest, in case Seymour paid said notes within some time 
 
 there stated. The terms of said stipulation are demanded by said bill. 
 
 Complainant charges there is no balance due Seymour from Hor- 
 ace Jerome, independent of said notes ; but that on the contrary, Ho- 
 race R. Jerome claims a balance due from Seymour. In case Sey" 
 mour ; claims a balance to set off against the notes, complainant offers 
 to submit the matter to a Master to state the accounts, and in such 
 case prays that said Horace may be made a party. Complainant al- 
 so states that in the winter of 1838 he attempted to settle with Sey- 
 mour, accounts were exhibited and Seymour examined and took a 
 statement of the same, that he did not dispute his liability to pay the 
 notes, but claimed he had a stipulation or agreement from Horace R. 
 which exempted him from interest. 
 
 That he attempted again to settle in the winter or spring of 1838, 
 as the agent of Horace, and the accounts were looked over at the 
 house of complainant in Detroit, that the notes were talked of and 
 admitted as a subsisting claim. 
 
 Complainant charges that both before, and after the transfer of said 
 notes and mortgage, Seymour has frequently admitted to complainant 
 his liability to pay the notes, that Shepard, the maker, is insolvent, 
 and a resident of the state of New York. 
 
 The defendant admits the indebtedness of Cyrus Shepard to Hor- 
 ace Jerome as stated in the bill. Admits giving the mortgage to 
 secure the debt, also the acknowledging and recording, and that the 
 same was for purchase money. 
 
 Admits that complainant holds the assignment of the notes and 
 mortgage, but denies that the same were assigned on the day stated, 
 and denies that 8500 or any other sum was paid for the assignment. 
 For answer says he was informed by the complainant that the notes 
 and mortgage were given to him in the winter or spring of 1837, as 
 agent to settle ; therefore denies that complainant was ever the bona 
 fide assignee. 
 
 Admits that said mortgage was on record at the time he bought out
 
 CASES IN CHANCERY. 359 
 
 Cyrus Shepard, and that Shepard gave -him a deed ; but denies the F'"t Circuit 
 same was subject to the payment of the mortgage, but stales that such j„„me- 
 conveyance was in terms, full and entire. Seymour. 
 
 Admits that at the time of the purchase made of Shepard, he had 
 knowledge of the notes and mortgage. Fie also admits he agreed to 
 pay the mortgage, which agreement is in writing. 
 
 Denies that the agreement with Shepard to pay said notes and mort- 
 gage constituted the whole or a considerable portion of the considera- 
 tion, but that he paid him some $1600 in money and property he- 
 sides. States that before the agreement to buy out Shepard a copart- 
 nership was formed, to wit, on the 20th day of December, 1836, be- 
 tween Cyrus Shepard, Seymour and PI. R. Jerome, which was in wri- 
 ting, one provision of which wos that Seymour and H. R. Jerome, 
 should furnish each one half of the means to erect a saw mill and dam, 
 and reim burse themselves from the earnings. 
 
 It being understood that the description of the premises was defec- 
 tive, it was agreed if Seymour wculd buyout Shepard. Jerome would 
 give a conveyance that was correct. About February 23, 1837, he 
 did purchase Shepards' interest, and received a conveyance ; sets out 
 the consideration and refers to the agreement in writing. 
 
 Admits that immsdiately previous to buying out Shepard all three 
 were joint owners and engaged in putting up the mill, and after the 
 purchase, defendant owned two-thirds and H. R. Jerome one third, 
 and that defendant and Horace R. continued their work through 1837. 
 
 That after the purchase it was proposed by said Jerome that new 
 articles of agreement should be made, by which defendant should be 
 obligated to advance according to his interest, this the defendant de- 
 clined to do, but still proposed if H. R. Jerome would release the mort- 
 gage so that the properly would be clear &;c., he would enter into such 
 agreement ; this was agreed to, and thereupon the copartnership 
 agreement was made. 
 
 That on the same day in pursuance of the original agreement and 
 in consideration that said defendant had entered y:ito the agreement 
 by which he bound himself to pay two-thirds of the expenses, and for 
 the further consideration in said deed expressed ; the said H. R. Je- 
 rome on the 27th day of February, 1837, by deed signed by himself and 
 
 Vol. I. 46
 
 360 CASES IN CHANCERY. 
 
 F'"t*^'fcui«- wife quit claimed two-tliirds of mill property to defendant, and the 
 Jerome. '^^^^ ^^^ acknowledged and recorded, and tlienin defendants custody. 
 sJytnour. Defendant admits the prior deeds were defective, also, that he paid to 
 the said Horace R.Jerome no pecuniary consideration for the execution 
 thereof; that one object of ihe quit claim was to correct the error. 
 But denies all fraud, denies that the mam object was to correct the er- 
 ror, but states the main object was to have the premises discharged 
 from incumbrances, and Horace R. Jerome designed and intended in 
 executing the quit claim deed to discharge the mortgage. 
 
 Admits he promised H. R. Jerome he would pay the notes both be- 
 fore and after quit claim deed. 
 
 Admits in November, 1837, he had an interview with H. R. Je- 
 rome at Flint concerning note and advances in which defendant claim- 
 ed he had advanced more than his share which said Horace R. admit- 
 ted, and desired defendant to take said two notes and pass to his cred- 
 it, but neither of said notes being due and defendant wanting cash de- 
 clined, saying they might come in after due. But finding he could 
 get no money agreed to take one, afterwards it was found the notes 
 were at St. Clair. Then concluded to take both and apply them in 
 the manner proposed, and drew upon the back of the statement of ad- 
 vances an agreement on the part of H. R. Jerome, to deliver both 
 notes, which was signed by H. R, Jerome. Defendant denies any 
 such stipulation in relation to said notes as stated in the bill, made at 
 any time. That after the above interview he went on in 1838 and 
 made further advances, and by the winter of 1839 completed the mill 
 and dam, and claims a large balance against H. R, Jerome over and 
 above said two notes, and in addition a large stipulation contained in 
 the agreement. Claims complainant has no right to bring him into 
 court to compel a settlement of accounts with a person not a party 
 to the suit. 
 
 E. C. Seaman for Complainant. 
 
 Lee Hale & Harding, for Defendant. 
 
 The CHANCELL(fe. — From the statements contained in the answer 
 I think there is a good reason to doubt the allegation that the com- 
 plainant is the bona fide holder of the notes and mortgage in ques- 
 tion.
 
 CASES IN CHANCERY. 361 
 
 I sliould rather be inclined to the belief that he was acting '^'"' ^''"="'' 
 in the capacity in which he led the defendant to believe he was ac- ,. , „ 
 ting until a short tims before the commencement of the suit, merely gejmour. 
 as the agent and attorney of Horace R. Jerome. But admitting him 
 to be the actual holder of these papers, how would the case stand ? 
 as between the complainant and defendant the present complainant 
 can have no greater equity as agent of this defendant than could his 
 assignor H. R. Jerome. 
 
 That the property upon which the mortgage was based was dis- 
 charged by the quit claim, I entertain no doubt, that it was the mu- 
 ual understanding and intention of the parties that such should be 
 the operation and effect of the deed, must be conceded. The effort 
 then to subject the land to the payment of the mortgage is out of the 
 question. 
 
 But it is said that as a part of the purchase money to an amount 
 equal to the notes remaining is in the hands of the defendant, the court 
 should treat this as a trust fund and enforce payment out of this to 
 the present complainant. Shepard the grantor of the defendant is 
 not a party in this suit. 
 
 It is true the defendant admits that he promised it the time of the 
 purchase to Shepard, to pay these notes then in the hands of Horace 
 R. Jerome, the assignor of the complainant. 
 
 In the course of their mutual dealings as copartners it was express- 
 ly agreed in writing that these notes should be credited to Horace R . 
 Jerome and charged to the defendant in consideration of advances 
 made by the defendant to the said co-partnership. 
 
 The agreement is inthise words: '• I am to deliver to Charles 
 "Seymour the two notes [ hold against Cyrus Shepard for $2-40 each, 
 " and charge them against the balance he may have furnished for 
 "the mill over his share without interest. H. R. JEROME. " 
 
 It is averred that the advances were made to an amount greater 
 than the notes. 
 
 How then can this complainant, standing in the place of Horace 
 R. Jerome, be entitled to a decree ?• If the notes which the mort- 
 gage was given to secure, were the notes of the present defendant ne- 
 gotiable, and negotiated before due, the defendant would of course
 
 i362 CASES IN CHANCERY. 
 
 First Circuit j^^^^ ^^^^^ jj^^l^ j^^^j^ ^j^g^^ ^^ ^j^^ j^^^j^ ^P ^j^^ holder. But they 
 Jerome, are not the notes of this defendant but of Shepard. The promise to 
 Seymour, take them up was made to Shepard while they were in the hands of 
 H. R, Jerome, his partner. 
 
 According to the answer, which for this purpose must be taken as 
 true, they were actually paid. Shepard is not a party to this suit, 
 and it is not proper or necessary in this stage of the proceedings to 
 decide what may be the equity between him and Seymour, but it is 
 quite certain as the case now stands the present complainant is not 
 entitled to a decree against the defendant upon these notes. 
 
 I have had some hesitation as to what order to make. Whether 
 to direct the nates and mortgage to be cancelled, or to permit the 
 cause to stand over with leave to make Horace R. Jerome a party 
 with the view to a settlement of tlie account for advances made by 
 Seymour as stated in his answer, which it was stipulated should ap- 
 ply in payment of these notes. The latter perhaps may be the safer 
 course and cannot prejudice the rights of either party. Let the or- 
 der be entered accordingly.
 
 CASES IN CHANCERY. 36:i 
 
 Nathaniel Weed, Harvey Weed and Henry W. Barnes, vs. James First circuii. 
 Lyon, Thomas Beals, Lemuel Goodell and Jonas H. Titus. v^^/"^ 
 
 Weed, 
 rs. 
 The act of April 12, IS-27. entitled " an act concernin? imrtgages, " prescribes the mannej in i,yon. 
 
 wliich mortgages may he registered, and being an act expressly in relation to mortgages, and 
 general in its terms, is not controlled in relation to the record of montages hy the act of the 
 aamedate, en.itled "an act concerning ilep.ls and conveyances ;" and therefore where a mort- 
 gage was registered according to the requirements of the first mentioned act: it was held to 
 ■ be a legal and valid registry, and constructive notice under the statute to a subsequent mort- 
 gagee or grantee of the same oremises. 
 
 The bill of complaint in this case was filed Nov. 16, 1810, and sets 
 forth that on the 6th day of June, 1837, John Hale was indebted to 
 complainants, in the sum of §3038,37, for goods, &c., and the said 
 Hale being seized of, or pretending to be seized of the fee of lots 16, 
 17, and 18, on the Military Reservation, so called, on the south side 
 of Congress street, in the city of Detroit, free from all incumbrance, 
 executed with his wife Felicite, a mortgage on the premises which 
 was recorded in the office of Register of Deeds for the county of 
 Wayne, in liber eight, on folio 343 on the 17th day of June, 1837. 
 
 That default having been made in the payment of the bond and 
 mortgage, a foreclosure was commenced by f\dvertisement on the 17lh 
 day of June, 1839, and the lots were struck off to the complainants, 
 and they became the purchasers, on the 31st day of August, 1839, 
 and received a certificate from the Sheriff, "that unless the land was 
 "redeemed according to law, the purchasers would be entitled to a 
 " deed in two years from the date of said purchase ; " that the certifi- 
 cate of sale from the Sheriff was duly recorded in the office of Re- 
 gister of Deeds of the county of Wayne, that the property had 
 not been redeemed, and there was no probability of its being 
 redeemed, as Hale, the mortgagor, was dead, and his estate in- 
 solvent, and complainants aver that they hold no other security 
 for the payment of the demand or debt, or any part thereof — 
 The bill then states that complainants were greatly surprised re- 
 cently to learn there was a prior incumbrance in favor of the defen- 
 dant, Lyon, which was made about the 13th November, 1828 ; and 
 upon examing the records of Wayne county, they find such to be the
 
 364 casp:s in chancery. 
 
 First Circuit fact, and that certain proceedings were instituted in behalf of said 
 ^"^^^^0^ Lyon, to foreclose the mortgage, and that the said premises were bid 
 L^^n, off on the 21st of November, 1S33, lot 16, for $700, lot 17, for $700 
 lot 18, for $1128,48, and that the Sheriff gave a certificate stating 
 that James Lyon, the purchaser, would be entitled to a deed, unless 
 previously redeemed according to law. An assignment was made in 
 January, 1840, to Thomas Beals, by Lyon, and the complainants 
 charge that Beals or Lyon contemplate applying to the Sheriff of the 
 county of Wayne, for a deed, on the pretence that the premises have 
 not been redeemed, thereby utterly disregarding the rights and inter- 
 ests of the complainants, and they charge if such deed is procured, it 
 would prejudice their claim on the premises. 
 
 The complainants then set forth that it was provided in an act of 
 the legislature, that there should be a City Register's office in the city 
 of Detroit, which law was in force at the time of the execution of' said 
 mortgage to Lyon, requiring it to be recorded in the City Register's 
 office, and declaring such conveyance to be fraudulent and void, un- 
 less it should be recorded in the City Register's office, before the -^re- 
 cording " of the deed or conveyance of a subsequent purchaser or 
 mortgagee. They then state that at the time the complainants took 
 their mortgage they exainined the City Records, and that Lyon's mort- 
 gage never was recorded in the office of the City Register, and that 
 they had no knowledge of the same until June, 1840, and they claim 
 that the Lyon mortgage should be considered as fraudulent and void. 
 
 Bill charges that the statuory foreclosure is void as against the com- 
 plainants, for the reason that the mortgage of Lyon was not recorded 
 in the City Registry. It also charges the foreclosure is void for irre- 
 gularity, is specified, and prays that the mortgage made by Hale and 
 wife to Lyon, be adjudged null and void as against the complainants, 
 or considered as subject to complainants mortgage ; and that the stat- 
 uory foreclosure be set aside and declared void, and for other relief. 
 
 The defendants demurred. 
 
 H. N. Walker, in support of the demurrer. 
 
 A. D. Fraser, Geo. C. Bates, contra. 
 
 The Chancellor.— The act of April 12, 1827, entitled " an act 
 concerning mortgages, " prescribes the manner in which mortgages
 
 CASES IN CHANCP^RY. 365 
 
 may be registered. This being an act expressly in relation to mort- ^''■" Circuit 
 gages, and general in its terms, is not controlled in relation to the re- weed, 
 cord of mortgages by the act of the same date, entitled " an act con- Lyon- 
 cerning deeds and conveyances." Therefore the record of the mort- 
 gage of Lyon in the County Registry, according to the requirements 
 of the act first mentioned was legal and valid, and a constructive no- 
 tice under the statute to any subsequent mortgagee or grantee of the 
 same premises. As this conclusion upon the construction of these 
 statutes is conclusive upon the equity of the case made by the bill, 
 the demurrer must be allowed and the bill dismissed. 
 Bill dismissed.
 
 366 CASES IN CHANCERY. 
 
 First Circuit. MacK & DaVIS VS. EllIS DoTY. 
 
 Mack. rpjijg joujj ^viu not relieve against a judgment at law on the ground of its being contrary to e- 
 Doiy. quily. unless the defendant was ignorant of the fact in question, pending the suit, or ihe de- 
 
 fence could not be received as a defence at law, or unless without any neglect or default on 
 the part of the defendant, he was prevented by fraud or accident, or the act of ihe opposite 
 party, from availing himself of his defence. This has been frequently so decided by this 
 court. 
 But where (he defendants were prevented from making their defence at law by the acts of the 
 plaintiff until the only witness, by which tlie defence could be proved, was dead, and a resort 
 to this court, in consequence thereof, l)ecome indispensable; it was held that the complain- 
 ants were entitled to relief in this court, and that it was not necessary for them to take an ap- 
 peal, and then apply to this court for a discovery, in order to entitle them to tliat relief. 
 
 Where it appeared by the bill that the complainants became security for a third person to the 
 defendant on two promissory notes, and that the defendant extended the time of payment three 
 several limes for ninety days each, without the knowledge or assent of the sureties, and the 
 maker of the notes at the time of the extension was able to pay, but at the time to which pay- 
 ment had been extended, he had become insolvent, and the defendant had commenced two 
 several suits before a justice of the peace to recover the amount of the notes against the sure, 
 ties, and they appeared and defended, and after the testimony was taken, the defendant who 
 was plaintiff in the justices court discontinued his suits, and after the decease of the only wit- 
 ness on the part of the defence, new suits were commenced, upon which judgments were re- 
 covered, the suits being undefended ; upon demurrer, it was held, that the case made by the 
 bill was such as entitled the complainants to relief in equity, and that it was competent for 
 this court to afford that relief in any stage of the proceedings as weU after as before judg- 
 ments at law. 
 
 Demurrer to a bill for discovery and relief against judgments at 
 law. The opinion of the court contains a sufficient statement of the 
 case. 
 
 A. D. Eraser in support of the demurrer. 
 
 Bill seeks to enjoin two judgments recovered before a Justice of 
 the Peace by default. 
 
 The fact alledgcd, might constitute a good defence at law if plea- 
 ded. No reason is assigned for not making a defence at law, nor 
 does it appear why a discovery was not sought while the action was 
 pending at law, and before judgment rendered. 
 
 It is conceded that the court would coerce a discovery in aid of in- 
 ferior courts, and that the amount in controversy alone constitutes 
 the test of jurisdiction. At all events it was the duty of the complain-
 
 CASES IN CHANCERY. 3G7 
 
 ants to have appealed to the Circuit Court, and ihen come to this court Fimcircuu. 
 for a discovery. 1 Eq. Abr. 131 ; Jer. Eq. Jur. 268,-9; 1 Madd. ^j.^^.^ 
 Ch. 195 ; 1 Chil.Dlg. 591, Sfc. ; 1 Paige 287. „',;,, 
 
 This court will not afford relief against a judgment at law, on the 
 ground of ignorance of facts, mismanagement of Attorney, not even 
 when perjury has been committed. " There must be a clear case, 
 of accident, surprise, or fraud before equity will interfere." 2 Vcrn. 
 G96; 6 J. C. R. 87; 10 Pet. R. 505; Fonb. 26,27, 656,-7; 2 
 Paige 321 ; 1 J. Cas. 492, 502 ; 3 J. C. R. 352 ; 1 J. C. R. 
 51, 395, 465, 320 ; 4 Id. 566, 510; 7 Id. 135, 337 ; 1 Johns' Dig. 
 1006. 
 
 The parties should have put themselves in a situation to try the 
 case by filing a plea, 6 J. C. R. 480-1. 
 
 As to matter beneath the jurisdiction of the court. 4 J. C. R. 
 186. 
 
 Goodwin & Hand, contra. 
 
 If an obligee does an act to the injury of the surety, or varies the 
 terms of his obligations, or enlarges the time of performance without 
 his consent, the surety will be discharged. 1 Law. Lib. 68, 70, 73 
 75, 76, 77; 2 Bro. C. C. 579; 6 Dow. 540; 2 Ves., 540, 
 10 J. R. 587; 'SKent HI ; 12 Wheat. 554; Chit, on Bills, (8th 
 ed.) 442, and cases cited; 2 Swanst.'J)29 ; 2 Hov. on Fraud 71 
 and cases oiled ; 4 Barn, c^ Cres. 506. 
 
 The rules as to the relief of a surety are the same in a Court of 
 Equity as in a court of law, when the facts are the same. 2 J. C. R. 
 554 : 17 J. R. 384. 
 
 When the sureties on the face of the instrument appear as sureties 
 the defence may be set up at law ; when they do not so appear, it is 
 doubtful as to whether the defence be available at law; in such case 
 the jurisdiction of a Court of Equity is undoubted, and in the other 
 case this court would seem to have a concurrent jurisdiction especial- 
 ly when a discovery is necessary. In this case the character of the 
 complainants as securities does not appear on the notes. 1 Laio Lib. 
 68 ; 4 Barji. ^ Cres. 506 ; 2 Swanst. 539. 
 
 In equity persons appearing to be principals are permitted to prove 
 
 themselves sureties. 1 Latv Library 69. 
 Vol. I. 47
 
 368 CASES IN CHANCERY. 
 
 First Circuit fp^g CHANCELLOR. — The bill alleges that the complainants became 
 Macic. sureties for one McKinney, to Doty, upon two promissory notes, for 
 Uoiy. fi^fy dollars each. Doty at three several times extended the payment 
 for ninety days each, without the knowledge or assent of the com- 
 plainants. That at the lime said extension was granted, McKinney 
 was able to pay, but after the tiine to which payment had been ex- 
 tended by Doty had elapsed, was insolvent. That at two several 
 times Doty commenced suits upon said notes before Robert Abbott, 
 Magistrate. That the complainants appeared and set up their defence 
 to wit : that they were sureties, and the extension of the time of 
 payment by Doty. That the only witness to support their defence, 
 (the agreement to extend the time of payment) was one Sidney S. 
 Hawkins, (since deceased,) who acted as the agent of McKinney, in 
 that behalf and was on one occasion sworn, and gave his testimony ; 
 and after the witness was examined, Doty discontinued his suit : That 
 the parties appeared on both occasions and were ready to make their 
 defence, &c., and the suits were discontinued. That after the decease 
 of said Hawkins, the only witness, new suits were commenced, on 
 which judgments were recovered, the said suits being undefended. 
 To this bill there is a general demurrer. The ground of the defence 
 is that this court will not relieve against a judgment at law on the 
 ground of its being contrary to equity, unless the defendant in the 
 judgment, was ignorant of the fact in question, pending the suit, or 
 it could not be received as a defence at law, or unless without any 
 neglect or default on his part, he was prevented by fraud, or accident, 
 or the act of the opposite party, from availing himself of the defence. 
 This is undoubtedly the true rule, it has been frequently so held by 
 this court. See Barrows \s. Doty, ante page 1 ; Wright \s. King, 
 ante page 12 and note on pages 17, 18. 
 
 It is insisted, however, that this case does not come within it. — 
 That the defendants below have been prevented from making their 
 defence by repeated discontinuances, when the parties appeared to 
 make their defence, until the death of the only witness. That from 
 the constitution of Justices' Courts, a continuance cannot be had for a 
 sufficient time to obtain a discovery. That Courts of Chancery in- 
 terfere with reluctance with inferior jurisdictions, and that this being
 
 CASES IN CHANCERY. 369 
 
 a case of original Chancery jurisdiction, this court should now enter- F'"t Circuit 
 tain this bill and grant relief. In support of these grounds, the cases ji^.^k. 
 of Rathbone vs. Warren, 10 J. R. 396; Boijce's Executors vs. Doty. 
 Grundy S Pet. R. 214:; 2 Sivansl. 539, are cited. It is clear from 
 the case made by the bill, that the complainants were discharged from 
 their liability. It is also undoubtedly true that Courts of Chancery 
 have always sustained their jurisdiction in this class of cases. A 
 Court of Chancery was formerly the only tribunal which could 
 afford adequate relief. But recently courts of law have also giv- 
 en effect to detences of this kind. The Court of Chancery hav- 
 ing originally exclusive jurisdiction, still retains it. But if the party 
 has a good defence at law, and it is in his power to make it there, with- 
 out a resort to this court ; and he permits a judgment to pass against 
 him, a Court of Chancery would not relieve him. It is apparent from 
 the case .as made, that the defendants by the act of Doty, af:er having 
 two suits commenced, at two several times were deprived of making 
 their defence, by the discontinuances, until the death of their only wit- 
 ness. That a resort to this court was indispensable, and that this 
 necessity has resulted from the act of Doty, the plaintiff below. The 
 only doubt in the case is, were the parties bound to apply to this 
 court before judgment rendered in the court below. It has been urged 
 that the defendants below could have taken appeals to the Circuit 
 Court, and could then have applied to this court for a discovery, and 
 would have been entitled to their remedy. I have entertained much 
 doubt whether this case comes within the exceptions to the general 
 rule as stated in the case in 10 J. R. 590, and 3 Pet. iJ. 214. 
 Was it necessary ? -was it incumbent upon the parties to adopt this 
 more expensive and circuitous proceeding to make their defence, af- 
 ter having on two several occasions appeared, in both suits, made their 
 defence, and produced their witness 1 I am inclined to think not. — . 
 The necessity for a resort here at all, has been caused by this extra- 
 ordinary and unjust proceeding on the part of Doty, ihe defendant. 
 In the case in 3 Pet., R. 214, where the court did relieve against a 
 judgment, the judge in delivering the opinion of the court, says: "It 
 is not enough that there is a remedy at law, it must be plain and ad- 
 equate; in other words as practical and as efficient to the ends of jus- 
 lice and its prompt administration, as the remedy in equity. " He
 
 370 CASES IN CHANCERY. 
 
 Firsicircuit says, also : " Although the defence might have been made at law, 
 Mack *^® complainant would still have been left to renew the contest upon 
 Doty, a series of suits ; and that probably after the death of witnesses. " 
 The casein 10 J. R. was a case against bail ; where the time had 
 been extended. There had been a judgment in the Supreme Court 
 against the bail, but relief still was granted. Here the complainants 
 were prevented from making their defence by the act of the defen- 
 dant. This was a case in which it would, have been competent for 
 this court to afford relief in any stage of the proceedings and 
 the resort here having been rendered indispensable by the act of Do- 
 ty, it will be unjust and inequitable to permit him to take advantage 
 of his own wrong. 
 Demurrer overruled ,
 
 CASES IN CHANCERY. 371 
 
 RicHAED H. Connor and Others, Administrators of Henry Connor Firsi Circuit 
 
 vs. John Allen. n^*^-/^^ 
 
 Coiinnr. 
 A surviving partner having the legal right to the possession of the partnership property, the Mien. 
 
 court will not deprive liim of that right, unless upon proof of inisraanagcrnent or danger to 
 
 the partnership etTccts. 
 Affidavits are not admissible to contradict the answer upon a motion for the appointment of a 
 
 receiver. 
 
 Bill States that in 1838, Henry Connor and John Allen were part- 
 nerSjOwning certain mills andother property to a considerable amount, 
 that they carried on the milling business as partners, until Sep- 
 tember, 184K), when Connor died ; that Allen had always been in ac- 
 tual possession and occupation of the premises, and still was in actual 
 possession and occupation and was running the mills and manufactur- 
 ing lumber from logs cut on the partnership lands, and on the lands 
 belonging to Connor alone, and was using and appropriating the pro- 
 ceeds to his own use and benefit. Bill prays for an account, injunc- 
 tion and receiver. 
 
 An injunction was granted. 
 
 The answer denies the entire equity of the bill, and states that the 
 partnership is largely indebted to the defendant. 
 
 The defendant moved to dissolve the injunction on the coming in 
 of the answer. 
 
 The motion for a receiver, and to dissolve the injunction both came 
 on to be heard at the same time. 
 
 A. C. Smith, for complainants. 
 
 Van Dvke & Harrington, for defendant. 
 
 The Chancellor. — The answer denies the whole equity of the 
 bill, and states the further fact that the partnership is indebted to him 
 in a considerable amount. The surviving partner having the legal 
 right to the possession of the property, the court will not deprive him 
 of that right unless upon proof of mismanagement or danger to the 
 partnership effects. Gow on Part., 382. 
 
 The affidavits are not admissible in contradiction to the answer up-
 
 372 CASES IN CHANCERY. 
 
 First Circuit, q.^ ^\^Q motion to dissolve the injunction, and the answer being full the 
 iniunction must be dissolved. Affidavits may be read upon a motion 
 for the appointment of a receiver. But I do not think the affidavits 
 presented show such a case of mismanagement or danger to the fund, 
 aswill justify the court in the appointment of a receiver under the 
 rule as before stated. 
 Injunction dissolved. 
 
 vs. 
 Allen.
 
 CASES IN CHANCERY. 378 
 
 Jesse Millard vs. Norton R. Ramsdell, and others, and Nor- 2"'^ *"'''''""• 
 TON U. Ramsdell vs. Jesse Millard and others, v-^^v^'W/ 
 
 Millard. 
 
 CB. 
 
 Where the complainant alleged in his bill a right to certain Bharcs of partnership property pur- nanisilell. &■ 
 chased of one of the partners, and the defendant denied his right, and by way of avoidance "' '^ 
 set up an independent contract to show himself entitled to one-half of the sliares, the answer IMillard. 
 was ketd as nut comhig within the rule of being directly responsive to ibe allegations of the 
 bill, and that the new contract set out should be proved. 
 
 If an agreement to convey real estate be vague and uncertain, or the evidence to establish it is 
 insufficient, a Court of Equity will not enforce it, but will leave the party to his legal remedy; 
 and in order to lake the case out of the statute of frauds, the acts of part performance must 
 unequivocally result from the agreement alledged. 
 
 AVhere one of several partners dies and the business ot the copartnership is carried on by the 
 surviving partners without tlieassent of the representatives, they have as a genera; rule their 
 election to demand Interest on the amount of the share of the deceased, or lake a share of the 
 profits; but where the interest of the deceased partuer had become vested in one of the sur- 
 viving partners who consented to the continuance of the copartnership, it was held the rule 
 did not apply. 
 
 The original bill in this case was filed in June, 1837, by Salmon 
 H. Matthews. 
 
 In July following, a cross bill was filed by Millard the principal 
 defendant in the original suit ; answei-s were put in by Matthews 
 and Millard respectively ; as to the others the bills were taken j^ro 
 confesso. 
 
 Subsequent to the putting in of the answers in both cases, Mat- 
 thews died, and the suits were revived and continued by and against 
 his personal representatives, Norton R. Ramsdell and Asa Willi- 
 ams, administrators, and Arabella Matthews, anministratrix. 
 
 Both suits were for the same object. 
 
 It appears from the cross bill that in November, 1835, Matthews 
 and Edwin Bond, one of the defendants entered into a copartnership 
 with Millard. The articles of copartnership were reduced to writing, 
 and are as follows : 
 
 " This article of agreement made the first day of November, 1835, 
 " between Jesse Millard, lute of Auburn N. Y., and Salmon H. Mat- 
 " thews and Edwin Bond of Dexter village M. T. Witnesseth, 
 "that the said parties have this day mutually entered into copartner- 
 " ship, under the firm of J. Millard & Co., for the purpose of carry-
 
 3'J'4 CASES IN CHANCERY. 
 
 2nd Circuit, u j^g q^ t}^g mercantile business and the grist mill and saw mill busi- 
 
 ' Millard. " ness, and all other business which may be, by the said firm, consid- 
 
 Ramsdeii. & *• ered necessary in connection with said branches, to promote the in- 
 
 itamsdell. 
 
 vs. "lerestof said firm, for the term of four years from the above date, 
 
 Millard. •' 
 
 " on the following terms, viz: their capital is to be !$21,000 or $7000 
 " to each person. 
 
 " The said Matthews and Bond now own in the said village of Dex- 
 " ter, a grist mill and saw mill and a tavern stand, and the necessary 
 " buildings thereon, containing about five acres of land, more or less, 
 *♦ according to their deed of said property, executed to them by Sam- 
 *' uel W. Dexter, on the 7th day of April, 1334, which property, to- 
 " gether with the appurtenances and water privileges thereunto be- 
 " longing, is estimated at fourteen thousand dollars, which they said 
 " Matthews and Bond are to furnish as a capital for the benefit of said 
 "firm, as their shares, and for which, whatever may be due, or to 
 " become due to said Dexter, they the said Matthews and Bond, are 
 t' themselves, to cause to be punctually paid to the said Dexter, with- 
 " out cost or inconvenience to the said firm or the said Millard. 
 " And the said Millard is to furnish seven thousand dollars worth of 
 •' goods as his share of said capital stock of said firm, and the said 
 " partners are mutually bound to each other to do and perform all ne- 
 " cessary services in their power, for the promotion of the above busi- 
 ♦' ness. All the loss or gain in said business is to be mutually shared 
 ♦' by the said partners, and all necessary expenses in said business is 
 " to be borne by the said firm, from and after the said date first above 
 " mentioned. 
 
 " And as the said Matthews and Bond are indebted to the said S. W. 
 " Dexter for the said premises and for the payment of said debts, 
 "they have executed a bond and mortgage to the said Dexter for the 
 '' payment thereof, and as the said Millard on his part furnishes his 
 "share of the said capital stock at the commencement of said firm. 
 " Now therefore it is hereby agreed by the said Matthews and Bond, 
 " that they will for the purpose of securing said Millard against any 
 "loss he might sustain by their failing to pay for the said premises 
 "according to the condition of said bond and mortgage, to execute 
 " to him the said Millard a warrantee deed of said premises, and they 
 " the said Matthews and Bond also agree, that in case of their fail-
 
 CASES IN CHANCERY. 375 
 
 " ure as aforesaid, to make payment for said premises whereby the '^"''- circuit 
 *• said Millard's interest shall be injured, that then in such case he j^jm^^rd. 
 •'shall have a claim to secure to himself from any personal property Raing'eii. & 
 "in the possession of said firm, or from the property owned by either ' „s. 
 "or both of the said Matthews and Bond in their private capacity. 
 " In witness whereof, the said parties have hereunto set their hands 
 " and seals at Doxier village, on the date first above mentioned, in 
 " presence of Chas. D. Millard. 
 
 (Signed.) "J. MILLARD, 
 
 S. H. MATTHEWS, 
 EDWIN BOND." 
 
 The cross bill states that Matthews and Bond were at the time of 
 executing said agreement joint owners of said real estate, and co_ 
 partners in the grist and saw mill business and tavern, under the firm 
 and style of Matthews and Bond — that said firm were then indebted 
 to different persons in a considerable amount ; that by the forma- 
 tion of said copartnership the firm of Matthews and Bond was dis- 
 solved. 
 
 That Millard did furnish his share of capital according to agree- 
 ment, and the goods were placed in the store of the firm. 
 
 That Matthews and Bond did in pursuance of the agreement on 
 their part to furnish &c., on the 12th of January, 1836, execute to 
 Millard a deed of one undivided third of said real estate. 
 
 That at the time of the execution of said agreement, said Matthews 
 and Bond proposed to Millard that he should become joint owner with 
 them of another parcel of land in Dexter, on which was a dwelling 
 house and store, &c., (the Brower lot,) that Matthews and Bond 
 then held a deed of the same, but had not paid the purchase money — 
 that it was agreed that Millard should own one-third of it and pay 
 one-third of the said purchase money — thai the same was included 
 in the said deed from Matthews and Bond to Millard — that part of 
 said purchase money had since been paid out of the partnership 
 funds — the remainder not yet paid and not all due. 
 
 Sets out the covenants in said deed on the part of Matthews and 
 Bond, in liaec verba. 
 
 Covenants. 
 
 First. Seizin in said Mathews and Bond. 
 
 A^OL. I. 48
 
 376 CASES IN CHANCERY. 
 
 2nd Circuit. Secoud. Freedom from incumbrances, except a mortgage to Dex- 
 ■^-j;;;;^ ter of $10,750. 
 
 R-in)s!^iei! & Third. That said Mattliews and Bond would pay said mortgage 
 ^vs. ' and indemnify Millard against the same. 
 
 Fourth. Right of said Matthews and Bond to sell. 
 Fifth. Covenant of warranty. 
 
 That said deed was intended as an absolute conveyance of said 
 one-third — that said Matthews and Bond have never executed ony 
 deed as security to Millard, as against the Dexter claim. 
 
 That the partnership commenced immediately on executing the 
 agreement, and that the goods were offered for sale in the store of 
 the firm — that the same had been replenished from time to time, by 
 and on account of the firm — that Matthews and Bond had at all 
 times participated in the profits thereof. 
 
 That Matthews and Bond were not acquainted with the mercantile 
 business, and therefore chose to attend to the other branches of the 
 business of the firm, and that Millard should attend principally to the 
 store. 
 
 That regular invoices were made of the ^7,000 worth of goods 
 and copied into a book in the store — and that similar bills were made 
 of the goods since purchased — and that all of the bills or invoices 
 were kept in the store with the other papers of the firm — that books 
 of account and a cash book, &c., were kept in the store and re- 
 mained there up to27lhof June — and that Matthews and Bond had ac- 
 cess to them at all times — that said invoice book was delivered to 
 Matthews at his request — that Matthews carried it away and still has 
 it. 
 
 That in the summer of 1836, an addition was built to said tavern 
 house by the firm and out of their funds, at an expense of about 
 $1,000, — that during the same year a store was in the same way 
 built on said five acres of land, at an expense of about $3,000 ; no 
 account was kept of the expense — that about the 1st of September, 
 1836, a contract was made by Millard and Matthews in the name of 
 the firm with one J. Ranney to sell him a village lot for a tannery, 
 being part of said five acres — which contract the parties agreed to 
 reduce to writing at some future time — that the same has not yet
 
 CASES IN CHANCERY. 877 
 
 been done, but that said Ranney has taken possession of the lot by ^"^ circuit, 
 the concurrence of said Matthews and Millard, and paid part of the yi^^uiTii. 
 purchase money for which receipts were given in the name of the Rnnrs'ieii. 
 firm, and the money appropriated to the use ot the firm — charges t,. 
 
 ' ir 1 Millurd. 
 
 that all this was done with the consent and approbation ot Matthews, 
 and that Bond, during his life time, and Matthews and Millard did 
 agree during his life time to build said addition and said store. 
 
 That said firm did about the 12th of January, 1836, purchase of 
 S. W. Dexter certain premises and water privilege, contiguous to 
 the village on Huron river, for $3,000, and took a warrantee deed — 
 that the whole of the purchase money is \et unpaid and not yet due 
 — that at and previous to the commencement of the partnership, 
 Matthews and Bond were negotiating with Dexter for the purchase 
 from him of one-halT the unsold lots of Dexter village, and also for- 
 ty or fifty acres of land north of said village — that it was agreed 
 between Matthews and Bond and Millard, that the latter should be 
 admitted to participate in said purchase — that the same was not con- 
 summated during Bond's life time, but that after his death Matthews 
 and Millard completed the purchase in their own names, and a con- 
 tract for the same was executed by said Dexter, Matthews and Mil- 
 lard, whereby Dexter obligated himself to execute to Millard and 
 Matthews a deed of the same upon the payment of $2,000, that the 
 same is still unpaid — that the said premises have risen in value and are 
 now worth at least $7,000. 
 
 That in January, 1836, Millard had occasion to go to the state of 
 New York after his family, and to purchase goods for the firm — that 
 it was agreed between all the parties that he should go, and that the 
 business should be left in charge of Matthews and Bond, and the 
 clerks — that Bond died during Millard's absence, in April or May, 
 1836 — that Millard was on his return when he heard of his death, 
 and immediately returned. 
 
 That after Bond's death, Millard and Matthews agreed to con- 
 tinue the business of the partnership under the same style and firm 
 as before, and for their joint benefit — that they did so — that Bond 
 left certain heirs — that soon after his death it was agreed between 
 Matthews and Millard, that Matthews should purchase of the heirs 
 their shares or interest in said concern, and to pay for the same out
 
 378 CASES IN CHANCERY. 
 
 and Circuit, of Malthews' own funds — tliat Millard should pay to Matthews one- 
 Miiiard half of the purchase money and expenses — that' Matthews should pro- 
 RanTsdeii. ceed to buv out the same on the best terms he could, in the names 
 '^f *^ ■ of Matthews and Millard, and for their joint benefit — that Malthews 
 should be allowed to absent himself a sufficient time for that pur- 
 pose. 
 
 That in September or October, 1836, Matthews left Dexter to go 
 to Massachusetts for the purpose of buying out the heirs living there 
 — for their joint benefit. 
 
 That Matthews did fraudulently purchase of some of the heirs 
 their interests in his own name and took deeds therefor in his name 
 alone — and that Matthews claims, that by virtue of said deeds he is 
 entitled to six undivided ninths of said real estate — and in right of 
 his wife to a life estate in another ninth — and also claims to be bene- 
 ficially interested in seven-ninths of the personal property of Bond, 
 and that these claims arc founded on the following deeds and releases, 
 (setting out abstracts of the deeds by the names of parties, dates, 
 time and place of record :) 
 
 List of deeds and releases, from Richard Bond and wife ; from S. 
 W. Dexter and wife ; from J. Carrier and wife ; from Q. Hitchcock 
 and wife ; from A. Williams and wife ; from Hannah Bond. 
 
 The names and residence of Bond's heirs are given — that Russel 
 Cooley is guardian of certain minor heirs, (children of Benjamin 
 Wing.) 
 
 That xMatthews has been appointed administrator of Bond. 
 
 That soon after Bond's death, his brother King E. Bond died, 
 leaving his wife and two children heirs — R. Cooley is administra- 
 tor. 
 
 That since Matthews' appointment as administrator of Bond, he 
 and Millard have continued the business as before. 
 
 That Millard has never drawn from the partnership more than his 
 share of the profits. 
 
 That soon after Matthews' return from Massachusetts, Millard 
 learned for the first time that Matthews had taken the deeds in his own 
 name — that Millard trusted to his good faith and was not alarmed, 
 until about February 1837, when in a conversation with Matthews,
 
 CASES IN CHANCERY. 379 
 
 Millard learned for the first time that he intended all of said purcha- -"'^ ^itc»u. 
 ses for his sole benefit. .Miii:,rd. 
 
 That the real estate has risen in value greatly — and was then R„"fden. 
 worth besides the erections recently made §17,000. 'U. 
 
 Miliard. 
 
 That Matthews as part of the consideration of said purchases as- 
 sumed the debts due from the firm of Matthews and Bond. 
 
 The amount of consideration expressed in the several deeds from 
 the heirs is $'930 — that Millard has offered to pay to Matthews one- 
 half of all the cost of said shares, and demanded a deed of one-half 
 thereof — that Matthews refused to make the deed. 
 
 That about the 10th of June, 1837, Millard was taken ill and was 
 confined to his house two weeks — that when he left the store there 
 was a large stock of goods on hand — about $10,000 worth — account 
 books, bills, notes, &c. dsc, to the amount of $15,000 or $20,000, 
 and about $2,000 in cash. 
 
 That about the 19th of June, 1837, Matthews took from the store 
 $1,000, for the purpose of paying a bank note at Washtenaw bank 
 due from the firm — that Millard learned afterwards that he had not 
 paid the same. 
 
 That on Sunday evening June 25, Matthews removed][the books 
 and papers from the store, and also the keys to the safe, and on Mon- 
 day Matthews dismissed the clerk and employed another. 
 
 That at this time there was in the store about $1,050 in cash. 
 
 That during Millard's illness, Matthews took and appropriated to 
 his own use large sums of money. 
 
 That on the 23th of June, Millard called at the store and was de- 
 nied access to the books by Matthews, and prevented by force from 
 making any examination. 
 
 That there is no person in the store or mills to look after the in- 
 terests of Millard — that Millard is unable to attend to the same in 
 person — that Matthews refuses to permit any one, &c. — that the 
 cash receipts in the store are about eighty dollars per day, and 
 that on the evening of June 27th, there was in the store $800 in 
 cash. 
 
 That Matthews is illiterate and incompetent to carry on the busi- 
 ness of the firm.
 
 &, liainsdell. 
 
 1}S. 
 
 Millard. 
 
 380 CASES IN CHANCERY. 
 
 2nd Circuit. Charges Matthews with combining and confederating with S. W. 
 ^Ijry^ Dexter and Millicent his wife, Richard Bond and Mary his wife, Jo- 
 
 Millurd. 
 
 Ramsdeii. seph Carrier and Polixiana his wife, Quartus Hitchcock and Arde- 
 Ks. lia his wife, Asa Williams and Hannah his wife, Hannah Bond, and 
 Arabella Matthews, wife of said Matthews, who each claim as heirs 
 at law of said Bond, &c., and with divers others, &c. 
 
 That Matthews filed a bill, &c., its prayer, &c. 
 
 Requires the defendants to make answer without oath — to the pre- 
 mises. 
 
 Prays for an account, that Millard may be decreed entitled to one- 
 half of the profits since Bond's death — for the establishment of said 
 deed from Matthews and Bond to complainant as an absolute con- 
 veyance — that Matthews be decreed to convey to complainant one- 
 half of the real estate purchased of Bond's heirs — for a partition of 
 the real estate or sale — for a dissolution of partnership — and for the 
 appointment of a receiver — for an injunction upon Matthews. 
 
 Abstract of answer of S. H. Matthews. 
 
 The answer of Matthews admits the copartnership, but insists that 
 the articles were entirely drawn up by complainant in an artful 
 manner, and designed to enable him to take advantage of defendant, 
 &;c. 
 
 Admits that previous to and at the time of executing said articles, 
 the defendant and Edwin Bond were joint owners of the five acres 
 of land in bil' mentioned, and were copartners in grist and saw mill 
 and tavern stand under the firm of Matthews and Bond, and tha* 
 the firm were then indebted as in the bill mentioned, and that by the 
 formation of said firm of J. Millard & Co., the firm of Matthews 
 and Bond was dissolved. 
 
 Denies that complainant ever furnished as his share of the capi- 
 tal stock $7,000 worth of merchants' goods, admits that complainant 
 did shortly after the execution of said articles, furnish and place in 
 the store of the firm a stock of goods not exceeding as defendant 
 verily believes $4,000 or $5,000 worth, and by far the greater pro- 
 portion thereof were remnants and other refuse goods of an old stock 
 unsuitable to the demand and difTerent in nature, quality and value 
 from what the complainant had promised to put into the partnership,
 
 CASES IN CHANCERY. 381 
 
 and such as did not according to their agreement entitle him to one- ^"'' *^'"=""- 
 third of the rents of the mills and tavern, the said agreement in fact j\i,ii;ini. 
 imposing on complainant an obligation to furnish a substantial and Rams.ieii, 
 tresh stock of goods suitable lo the wants of the country, and worth at vs. 
 first cost prices and transportation S7,000. 
 
 Admits that after the execution of the articles, and in pursuance 
 of the agreement therein, defendant and wife and Edwin Bond exe- 
 cuted a deed in fee simple of one-third of tlie five acres as in the bill 
 stated, but says that the deed though absolute in terms, was not in. 
 tended to be so in fact, but only to operate as a security to indemnify 
 complainant against the claim of S. W. Dexter in the articles men- 
 tioned; and to a participation of one-third of the rents and profits of 
 said property for four years, and complainant acquired an estate 
 therein only for the aforesaid purposes upon the express condition 
 that money to pay Dexter should be drawn from the partnership 
 funds, and on the faith that complainant wonld fully comply with his 
 aforesaid contract by delivery of the stipulated stock of goods, &;c.^ 
 and the property was estimated at a price below its real value, on 
 the further faith that the goods would be of the quality and prices be- 
 fore mentioned; and states that the deed was drawn by complainant, 
 does not recollect what the covenants were. 
 
 Admits that at the execution of the copartnership articles, defen- 
 dant and Bond proposed to complainant to become jointly interested 
 with them in the Brower lot — that defendant and Bond then held a 
 deed therefor as in bill stated, and subject to the payments therein 
 mentioned, for which three weeks notice were given. That com- 
 plainant at the time mentioned in bill, concluded to purchase and 
 pay as therein stated, and that the first of said notes has been paid, 
 the others are unpaid, and only one due. 
 
 That defendant cannot state positively what covenants are con- 
 tained in the deed, but believes they are as set forth in the bill, that 
 the deed is recorded. Denies that the deed was intended to be abso- 
 lute, but' avers that it was as security as aforesaid, and denies that 
 defendant and Bond or either of them have executed to complainant 
 a warrantee deed of the premises mentioned in copartnership arti- 
 cles except as security. Avers that there never was any conversa-
 
 CASES IN CHANCERY. 
 
 , tion between the parlies by which complainant was entitled to any 
 Miiiard. other deed than the one he received, nor was there ever any com- 
 Uam'^iieii. plaint by complainant that he had not received all nnd every deed he 
 
 & Uamsdell. ' 
 
 ys- was entitled to. 
 
 That complainant has in fact received the deed mentioned in the 
 articles of agreement and none other, and for the sole purpose there- 
 in mentioned, and he never demanded any other. 
 
 That the copartnership of J. Millard & Co., commenced imme- 
 diately on the execution of the articles of agreement, and goods of 
 said firm were sold at their store and replenished from time to time 
 from different places, but to what extent defendant cannot state; that 
 defendant has received or expects to receive his own share of the 
 profits, and also seven-ninths of those due to Bond at his death to which 
 he is entitled in virtue of the several assignments, as also two-ninths 
 more which hs has this day purchased, being all of said Bond's inte- 
 rest, but denies that complainant put in $7,000 worth of goods, or 
 that defendant has shared in the profits of such an amount. 
 
 Admits that defendant and Bond were unacquainted with mercan- 
 tile business, and that he chose to attend to the other branches of the 
 business, and that complainant should give his attention to the store, 
 intending thereby that such attention should be proper, &c., and that 
 complainant would be responsible for such attention, but defendant 
 avers that the store has been very inadequately and improperly at- 
 tended by complainant and sons, with complainants' knowledge and 
 consent, and to the detriment of the concern. 
 
 Denies that regular and correct bills or invoices were made of the 
 , $7000 worth of goods, so said to be furnished by complainant, and 
 
 were copied into a book in the store. Denies that the stock was 
 at all furnished. Defendant says he never knew until the time 
 after mentioned, that any invoice or bill of any kind had been made 
 by complainant of the goods which he did furnish. Says that no bills 
 of the goods so furnished were ever made out by the persons who sold 
 the same to complainant, as defendant verily believes, and if they 
 were made out they were never shewn to, or seen by defendant, and 
 defendant does not believe and avers that there never was a just and 
 true invoice made out by complainant, or on his behalf of said goods.
 
 CA.SES IN CHANCERY. 383 
 
 But defendant admits that about the sixteenth of June last, complain- ^"'^ circuit, 
 ant showed defendant a small book purporting to be an inventory of \|iii„rd. 
 eoods made out at Auburn, New York, which was made out chiefly i{i,i„s,'ieii. 
 
 . Kiin.!..lell. 
 
 in srross sums, omittinsr the details necessary to render it satistactorv, vs. 
 
 ° ' ° -^ .' Millard. 
 
 and to test its correctness, that the entire was made out by complain- 
 ant without reference to original bills, but with a view to establish a 
 particular result and afforded no evidence of the actual amount, that 
 this was all the invoice ever shewn to defendant, and he believes the 
 same was not completed until long after the commencement of 
 the copartnership, that the defendant retained same in his |)0s- 
 session a few days, when he returned it to complainant, or into his 
 possession at the store, about the twentieth June last, and defendant 
 believes the same is now in the store or in complainant's possession. 
 Defendant believes that bills were made of the goods since purchased 
 at New York, and elsewhere, and that all of said bills have been kept 
 with the other papers of the firm in the store. 
 
 Denies that regular books of account of all sales or credit made at 
 said store were kept, or that any of the other books mentioned in bill 
 were regularly kept, but admits that books purporting to be those in 
 the bill mentioned, and for the time therein stated were kept not in a 
 regular business like manner, but very irregularly, defendant believ- 
 ing that not more than one-tenth of the several accounts purported 
 to be kept thereby were in fact entered on said books. 
 
 Admits that all the books were kept in the store, and were open to 
 inspection of defendant and Bond with exception of said invoice bonk, 
 which was, at defendant's request, delivered to him for the purpose in 
 the bill alleged, and was returned by defendant. 
 
 Denies that the defendant or Bond had the control of any of the 
 books, although they were open to their inspection ; they remained 
 in the exclusive possession and under the exclusive control of com- 
 plainant, or his sons, who acted as clerks in the store, and although 
 they were nominally clerks of the company, yet they in reality con- 
 sulted their father's interest in all cases when that was at variance 
 with the interest of the other partners. 
 
 Admits the building of the addition to tavern, and the store, both 
 
 after Bond's death, at the time and expense stated in the bill. 
 
 Admitsthe contract of sale of a village lot to Julius Ranney as in 
 Vol. I. 49
 
 vs. 
 Millurd. 
 
 384 CASES IN CHANCERY. 
 
 2nd Circuit, j^j}] stated, says that complainant's participation in said transaction 
 Millard, arose not from his right as a proprietor in the lot, but from his interest 
 RaJsJeii. as a partner, and of the firm having a temporary and qualified inter- 
 
 •li ,t«,ti 
 
 est as before stated, which rendered his assent necessary. 
 
 Admits that said lot was taken possession of, and part of the pur- 
 chase money paid, receipted and appropriated as in the bill stated, 
 but that defendant consented to such appropriation not from any right 
 of the firm thereto, bat because same was small in amount ; that at 
 the time of the contract defendant told Ranney that the company 
 could not give a deed, but that at some future time defendant individ- 
 ually would see that he received a deed. 
 
 Admits that the addition to tavern and store were built and paid 
 for, and said lot sold and receipts for purchase money given in all par- 
 ticulars as stated in the bill, and that the parties therein mentioned 
 did agree to erect said buildings. 
 
 Admits the purchase from De.xter as in the bill stated, that the deed 
 is in defendant's possession; the purchase money yet unpaid, and no 
 part due at time of filing the bill, but defendant believes one payment 
 has since become due. 
 
 Admits that at and previous to the commencement of partnership, 
 defendant and Bond were in negotiation for the purchase of village 
 property of De.xter as in bill set forth, and the agreement between 
 complainant, defendant and Bond, as in the bill stated, and that the 
 purchase was not consummated during Bond's life time, and states it 
 never was consummated, but the agreement then made fell through, 
 and a new bargain was made therefor after Bond's death. That the 
 premises were purchased by complainant and defendant, not in their 
 copartnership character, but as individuals, admits that complainant 
 and defendant did complete the purchase as stated in the bill, and that 
 the contract was then in defendant's possession. Admits that the pre- 
 mises have risen in value ; cannot say whether they are worth at 
 least $7,000, but believes they are worth S5,000. 
 
 Admits that complainant had, as he alleged, occasion to go to the 
 state of New York at the time, and for the purposes mentioned in bill, 
 and that defendant made no objection thereto, though he conceived 
 complainant's going to be in violation of their copartnership articles, 
 defendant regarded his departure as being caused in reality by the ne
 
 CASES IN CHANCERY. 886 
 
 cessity of moving his family, and that the purchase of goods was only ^"'^ Circun. 
 a pretext ; that if such purchase was really necgssary it was in con- ^^j,,, ,r^, 
 sequence of complainant having failed to furnish his 87,000 worth Ramsdeii. 
 
 _ii I 1 1 ■ Uaiiiidell. 
 
 of goods. 1 hat though there was no express agreement, as mention- ,:, 
 
 . Millard. 
 
 ed in the bill, in regard to conducting the business during coniplain- 
 ant's absence ; yet it was generally understood as unavoidably resul- 
 ting from such absence that the store should be left in charge of the 
 defendant, and Bond and the clerks ; and that defendant and Bond 
 should take charge of the other branches of the business, and that 
 complainant should be permitted to take the journey. 
 
 Admits that Bond died at the time mentioned in the bill. Defen- 
 dant does not know whether complainant was on his return when he 
 heard thereof, but admits th;it he did return soon after. 
 
 Admits that after Bond's death, defendant was under the impres- 
 sion from the representation of others that he was bound to continue 
 the partnership to the end of the four years, and under that impres- 
 sion he did continue the business, with complainant, without any new 
 agreement, for their joint benefit and under the same firm as before, 
 and the business was continued and carried on as before. Denies that 
 it was under any new agreement independent of the original arti- 
 cles. 
 
 Admits that Bond left heirs. Denies wholly any agreement or 
 conversation in reference to the purchase of their rights for the joint 
 benefit of complainant and defendant. That defendant has, since 
 Bond's death, purchased of the heirs, and become entitled to the whole 
 of Bond's interest, and that the same was purchased for his sole be- 
 nefit. 
 
 Admits defendant's leaving Dexter at the time, and for the purpose 
 in the bill mentioned, and that he procured from Bond's heirs, deeds 
 and releases, to be executed to him in his own name, and that he 
 claims as in the bill mentioned. Denies that his so doing was in vio- 
 lation of agreement, or with intent to deceive or defraud complain- 
 ant. 
 
 Admits that defendant derives his .said claims under, and by 
 virtue of the several deeds in the bill set forth. 
 
 Admits that Bond's heirs are correctly set forth in bill, and that de- 
 fendant is Administrator of said Bond, and that King E. Bond died 
 intestate, leaving the persons named in the bill his heirs.
 
 386 CASES IN CHANCERY. 
 
 2nd Circuit, 
 
 Admits that ever since defendant's appointment as Administrator of 
 Millard. Bond, he has continued the business with complainant ; but defendant 
 Ramsdeii. did SO in his individual, and not in his official capacity, as Adminis- 
 
 & Ramsdeii. 
 
 vs. trator. 
 
 Millard. 
 
 Defendant believes complainant has drawn more than his share of 
 profits, and therefore denies that complainant has never drawn more 
 than his share. 
 
 Defendant cannot form any belief whether or not, soon after his 
 return from Massachusetts, complainant learned for the first time that 
 defendant had taken deeds in his own name, nor whether he relied 
 on the good faith of defendant, and was not alarmed &c., nor wheth- 
 er, until the conversation in the bill mentioned, complainant learned 
 that defendant intended all of said purchases for his own benefit. 
 
 Defendant believes that complainant never entertained the least 
 idea that any of said shares were purchased for his benefit. 
 
 Admits that since November, 1836, the real estate mentioned in 
 the deed from defendant and wife and Bond to complainant has risen 
 in value, independent of the erections thereon. Defendant cannot 
 say how much or whether they are worth the sum mentioned in the 
 bill. 
 
 Denies that defendant ever told complainant that, on the purchase 
 of the rights of Bond's heirs, he assumed as part of the considera- 
 tion of the purchases the payment of the debts due from the firm of 
 Millard & Bond, and that the consideration expressed in the deeds, 
 was the amount actually paid over and above the debts, that such was 
 not the fact, but defendant admits that he may have told complainant 
 that as part of the consideration he was to assume the debts, but the 
 amount of consideration e.xpressed in the deeds was inserted in a 
 round sum, without regaid to the sum actually paid, which in some 
 instances exceeded the amount stated. 
 
 Admits that the whole amount of consideration expressed in said 
 deeds is two hundred and fifty dollars. But for the reasons before 
 stated, defendant wholly denies and repudiates the pretended claims 
 of complainant, to any participation in the property acquired by said 
 purchasers, and denies that complainant, by virtue of any agreement 
 with defendant, and of any right as surviving partner, and by pay- 
 ing to defendant the half of the sums in the bill mentioned, or other-
 
 CASES IN CHANCERY. 387 
 
 wise would be entitled to half of said property, or any part thereof. ^"^ circuiu 
 
 Denies that any tender was ever made as stated in the bill, but ad- ^inurj 
 mits that, at or about the time stated in the bill, complainant did make R.unsiieii. 
 the demand stated in the bill relative to said property, and that de- 'c'»?'^ 
 fendant refused. 
 
 Admits the illness of complainant, as stated in the bill, and that 
 the store was left in care of his two sons, and there was in the store 
 a large stock of goods. Does not know the amount, or of what 
 they consisted. Also, books of account, notes, &c., &c., together 
 with a certain sum of money. Defendant cannot set forth the 
 particulars, or amount ; all such matters remained under the control 
 and management of complainant, as well during his temporary ill- 
 ness as before. 
 
 Admits that defendant did take the sum of one thousand dollars as 
 stated in the bill, and for the purpose therein mentioned, and which 
 was not a mere pretence, that he did actually pay the bank note there- 
 with. 
 
 Admits that defendant did enter the store in the absence of com- 
 plainant, and the clerks as stated in the bill, and put into an iron safe, 
 therein the books, notes, &c., and removed the key of the safe in 
 which the money was kept, but all this was done in pursuance of the 
 consequences of the writ of injunction, &;c, and in accordance with the 
 prayer of a bill which defendant was coerced to file by the conduct of 
 said complainant, &c., and because defendant apprehended if he had 
 notice of the issuing of the writ, he would seize upon the portable and 
 valuable property of the firm, &c., defendant, in order to protect 
 them locked them up, and after service of writ, removed the same to 
 his house, the complainant having obtained a key of the safe, and 
 dismissed complainant's sons, as stated in the bill, because he had not 
 confidence in them, and placed in"said store a competent and trusty 
 clerk, and assumed the entire control and management of the busi- 
 ness. Defendant submits that he was justified &c., and exercised on- 
 ly his legitimate povver. 
 
 Admits that at that time defendant received from the safe in said 
 store, about sixteen hundred dollars. 
 
 Admits that during complainant's illness defendant took and ap-
 
 ^88 CASES IN CHANCERY. 
 
 2nd Circuit, propriated to his own use various sums of money as he was justified 
 
 Miiianf. i" doing by virtue of his rights as a partner and by virtue of arti- 
 
 Rams.'ieii. cles relative to the purchase of the Brower lot ; all of which were 
 
 vT ^ ' entered upon the books, avers that the whole did not exceed the pro- 
 
 Millard. ^ 
 
 portion of defendant. 
 
 Admits that on the twenty-eighth of June defendant being in pos- 
 session of the store, complainant did call at the store and requested, 
 as stated in the bill, and that defendant did refuse said requests, which 
 he was induced to do because he wished to make an inventory there- 
 of, previous to the access of complainant thereto, whom he suspec- 
 ted of a design to alter the same and make entries thereon, which 
 entries complainant did afterwards make as hereinafter stated, and 
 defendant did not think complainant was entitled to have access to 
 the books until they were in the hands of a Receiver, and defendant 
 removed them to his own house until a Receiver was appointed, and 
 then delivered them to him. 
 
 Denies that there was no person in the employment of the firm to 
 take care of the interests of complainant, that defendant employed 
 a trusty and competent clerk to act for the entire concern, and gave 
 his own time and attention to the business, but defendant did, as stated 
 in the bill refuse to permit any person appointed by complainant to 
 attend, &c. 
 
 Admits the receipt of money and the state of funds as stated in 
 the bill. 
 
 Admits that defendant, though not an illiterate man, is unacquain- 
 ted with the mercantile business. 
 
 Denies that complainant has any well grounded apprehensions of 
 being defrauded by defendant. 
 
 Admits that no account was ever settled between them. Defen- 
 dant avers that complainant has, during the partnership applied to his 
 own use sums of money, and exceeding his proportion, to an amount 
 unknown to defendant, and that he permitted his sons, being minors, 
 and irresponsible to take out of store goods, and charged them to their 
 account, and also that complainant furnished articles for the use of 
 the concern and charged more than they were worth. 
 
 Insists and avers that the partnership was dissolved by Bond's death,
 
 CASES IN CHANCERY. • 389 
 
 and all of complainant's right to a share of the profits of mills &.C., -"** Crrcuit. 
 became extinct. .Aiiiiiini. 
 
 Admits that complainant, although not entitled to any participation ituin'.ieii. 
 
 • •!! r \ Rumsdcll. 
 
 m the fee of said real estate, is entitled to an account of the proper- v 
 
 ' ' Millard. 
 
 tion of his funds, if any drawn from said concern, for improvements 
 of said estate ; but defendant says that said sums should have been 
 charged to him and Bond, and if not already charged, should now be 
 so charged, &c. 
 
 Admits the institution of proceedings in this court, as in the bill, 
 and that a Receiver has been appointed, to whom defendant gave up 
 the premises, books, money, &c., and the Receiver now conducts en- 
 tire business. 
 
 That complainant having expressed anxiety to help the Receiver 
 and been permitted to have access to the books, took advantage there- 
 of to make some entries thereon, materially affecting the nature and 
 statement of some of the accounts, and did the same in a clandestine 
 illegal manner. Defendant does not know the nature or amount 
 thereof. 
 
 That the bill is irregular, informal without equity, and deficient as 
 to parties. 
 
 Defendant prays to be allowed the benefit of these and all other ob- 
 jections on the hearing of the cause, and on all other occasions, as 
 fully as if the same had been made the subject of special demurrer, 
 or plea. Prays the dismissal of complainants bill and the relief pray- 
 ed by the defendant's original bill. 
 
 General replication filed. 
 
 Miles & Millard, for complainant. 
 KiNGSLEY, Fraser & RoMEYN, for defendant. 
 
 The Chancellor. — It is not necessary in this stage of these caus- 
 es to enter at length into a detailed statement of the pleadings, and 
 the very voluminous proofs, and exhibits which the cases present. 
 
 The first question presented, which it is necessary to decide before 
 the accounts are stated, is, did Millard comply with the conditions of 
 the articles of copartnership by furnishing goods to the amount of 
 $7000, and thus entitle himself to the one third of the real estate and 
 to an equal share of one third in the effects and profits of the copart-
 
 390 ' CASES IN CHANCERY. 
 
 2nd Circuit, nership. An inventory is exhibited, by which it appears that the cost 
 
 ^^yy^^ of the ffoods furnished by him was -$5,389 54 exclusive of the cost of 
 
 Rfimtrteii. transportation, insurance, &c., and that a general charge was added 
 
 * '^^cT''^"' of thirty-three and one-third per centum for freight, purchase of 
 
 goods, insurance, &c., making $1,796 51, which two sums, make in 
 
 all $7,186 05. 
 
 It appears by the proofs in the cause that from eight to ten per ct. 
 should cover these charges. 
 
 It becomes necessary to determine the question whether the good^ 
 thus furnished were accepted and received by Matthews and Bond as 
 a fulfilment of this part of the agreement on the part of Millard. It 
 may be proper to say from my view of the terms of the contract that 
 if Matthews and Bond had dissented at the time the goods were fur- 
 nished, and refused to proceed further until the question of the amount 
 to be charged for purchasing the goods, freight, &c., had been settled 
 and the deficit supplied, they would have been entitled to have 
 the amount of goods stipulated for, at cost and reasonable charges 
 and expenses without any addition by way of profit. 
 
 But from the testimony of King and C. D. Millard, confirmed to 
 some extent by that of John Williams there are strong grounds of 
 probability ihat the exhibit containing an inventory of goods, and in 
 which this charge of $1796 51 occurs, was the one used at the time 
 the goods were received at Dexter. 
 
 The testimony of Cyrus Loomis of the admission of Matthews, 
 that Millard had fulfilled on his part, confirmed as it is by the prom- 
 inent fact that the deed of the one third, part of the property was ex- 
 ecuted by both Matthews and Bond some time after the goods were 
 received, without an)' further stipulation or reservation, altogether fur- 
 nish a very strong presumption that the parties themselves regarded 
 this part of the contract as fulfilled and settled. Whatever may have 
 been the fact, in a doubtful question of this kind, it is much the most 
 safe to abide by the unequivocal acts of the parties themselves, than 
 at this late period to attempt to open this matter. 
 
 That the parties executed and delivered the deed, admits of no 
 doubt.
 
 r». 
 
 Millard. 
 
 CASES IN CHANCERY. 391 
 
 As to Ihe alleged agreement for the purchase of the interests of the '^"'^ circuit. 
 heirs of Bond. ^"^^^^IT^ 
 
 It is urged that this agreement is made out by the an.swer of Mil- Rnmld'cii. a. 
 lard, and that it is taken out of the statute of frauds by part perfor. "•'"""'"'• 
 mance. Millard, the defendant in the first suit, and complainant in 
 the other, insists irj his answer in the one case, ^nd in his bill in the 
 other, that it was agreed betw'een himself and Matthews after the 
 death of Bond, that the interests of the heirs of Bond (should be pur- 
 chased by Matthews for the benefit of both. This is denied in the 
 most positive terms by the answer of Matthews, in the second suit. 
 It was insisted at the argument that Millard's answer being respon- 
 sive to the bill and not disproved, must be taken as true. ]\Iatthews 
 alleges in his bill his right lo certain shares purchased of the heirs of 
 Bond. This Millard denies, and by way of avoidance, sets up this 
 independent contract by way of showing himself entitled to the one 
 half of these shares. This, I am inclined to regard as not coming 
 within the rule of being directly responsive to the allegations of the 
 bill. It sets out a ne\y contract, and should be proved. The testi- 
 mony of the witnesses is not positive and conclusive. They do not 
 testify as to the terms used by the parties in making the contract. 
 
 O. D. Millard says in general terms that it was agreed that the in- 
 terests should be purchased for the benefit of both, as he understood 
 it : giving the understanding of the witness and not the words used 
 by the parties. 
 
 The testimony of B. King, as to the purcha^-e, is still less explicit. 
 
 It seems strange that a transaction of this importance should have 
 taken place without a written contract, or at least a verbal one more 
 plear and explicit. It has rather t.'ie appearance of a conversation 
 in relation to a contract, than a clear definite and complete agree- 
 ment. 
 
 No entry on the subject.is made on the books. The money is paid 
 entirely by Matthews ; no charge is made to Millard or to the firm ; 
 and the title is taken to Matthews individually. 
 
 The claim as alleged is for an interest in the entire shares purchas- 
 ed of the heirs of Bond. The testimony relates only to the shares 
 of the heirs residing in Massachusetts, while several others were res- 
 ident in the immediate vicinitv of Dexter. It will be perceived that 
 
 Vol. I. 50
 
 392 CASES IN CFIANCERY. 
 
 2nd Circuit- ^]^q contract is not proved in that clear, full and precise manner, 
 Millard, wliich has Uniformly been required as the first step toward the estab- 
 
 Kamltieii.& lishment of a parol contract for the conveyance of lands. 
 "^ vs. ' If the contract be vague and uncertain, or the evidence to establish 
 
 Millard. ^ -r^ . .,, „ . , -hi 
 
 it insufficient, a Court of Equity will not eniorce it, but will leave 
 the party to his legal remedy. Colson vs. Thompson^ Wheat, R. SSG 
 (S. C. 4 Pet Cond.R.lA^.) It was however insisted that there h-jd been 
 such unequivocal acts of part performance as would confirm the ex- 
 istence of the contract and take it out of the operation of the statute. ^ 
 These acts consist principally in certain improvements upon the 
 property after the death of Bond,' by the surviving partners and with- 
 out keeping an account of their expenditures. The rule is that the 
 act of part performance must unequivocally result from the agree, 
 ment alleged. See Burtch vs. Ilogge ante 31 andn 1, 2; Bomier vs- 
 Caldwell ante 67; McMuriric vs. Bennett 12-i. It may have been so in 
 this case ; but this is not one of those cases where the acts mast ne- 
 cessarily liave resulted from this agreement, and are inconsistent with . 
 any other. 
 
 It will be perceived that from the view 1 h;ive taken of this portion 
 of the cause, this is not a case of a parol contract clearly proved 
 and pa,rtly performed, which calls upon this court to decree a specific 
 performance. It is, not clearly and distinctly proved. It is positive- 
 ly denied by iSIatthews. The money was all paid by him and no 
 charge made, cither to Millard or to the firm. The title deeds were 
 all taken in his name, and it at least presents such a case of doubt as 
 admonishes this court of the danger of interfering to decree the 'per- 
 formance of a contract whicK may never have had an existence. 
 
 Mattliews, although he denies any new agreement, says he believ- 
 ed at the time he was bound to continue the partnership. It is not 
 going too far I think, to regard this to have been the understanding 
 of the parties as the interests were subsef|uenl]y vested in Matthews, 
 to accord to them an equal interest in the profits after the death of 
 Bond. 
 
 Hence it will result that in taking the accounts Millard must b-e re- 
 garded as lAving fulfilled on his part the original agreement, and to 
 be entitled to one third of the real estate, and to one third of the pro- 
 fits of the copartnership to the death of Bond, and that the accounts
 
 CASES IN CIIANCEUY. 393 
 
 be stated to tliat period. That thcrcaftei" the survivors Millard and -'"' circuit. 
 Matthews share and share alike in the profits. That the legal repre- .Miiiard: 
 sentativesof Bond be credited with interest upon their share of the unmsdeii. 
 capital, and a reasonable rent lor their proportion of the real estate bs. 
 
 • 11' I • 11- Millard. 
 
 (rom that period to be ascertained by tiie master. And as it appears 
 that the repairs and improvements made to the real estate, were nec- 
 essary and usefisl. and were made with the concurrence of Matthews 
 jn whose estate these shares are now vested that the representatives 
 of Bond are to be charged in the account with one third of their cost, 
 and that further difections be reserved until the coming in of the re- 
 port. 
 
 July 11, 1840 a rehearing was granted upon petition filed for that 
 purpose, and an oi-der granted staying all proceedings until the re- 
 hearing should be had. The following is the opinion o( the Chan- 
 cellor on the rehearing : 
 
 The Chancellor. — Most of the questions raised upon the re-hear- 
 ing of this cause Were considered and disposed of when the case was 
 before the court upon the first hearing. It is not necessary therefore 
 to again go through the details of this complicated case. Upon are- 
 view, I must confess I have' had more hesitation and doubt upon the 
 question as to whether .Matthews ought not to be held and considered 
 as having purchased the interest of the deceased partner for the be- 
 nefit of the firm, arid an equal division made, both of the property 
 and profits, after the re-payment of the money paid by hiin for the 
 purchase of this interest. 
 
 But as there is no reasonable doubt from the entire case that the 
 purchase money was paid by Matthews, no charge or memorandum 
 made on that account in the books, and no written contract or memo- 
 randum between the parties; it is perhaps, if there be an error, er- 
 ring on the side of safety to adhere to the views there expressed up- 
 on this point, although it is with some doubt and hesitation. But the 
 point made upon the rehearing, and to which the petitioners must be 
 confined, is, that the representatives of the heirs of Bond are entitled 
 to their election, to take either interest or profits upon that share. It 
 was held upon the former occasion as v/ell from the pleadings and 
 proofs as from the whole course of the business of this firm, that it 
 •was understood and agreed, on the part of Matthews that this part-
 
 3d4 CASES IN CHANCERY. 
 
 Snd cuciiit. nership should be conlinued, and that each party were entitled to share 
 
 Millard. ^^^^^ ^^^^'' ^''® ^^^^^ °^ Bond. 
 
 RamVcieii. The interest of Bond being vested in Matthews, to give him or his 
 & Ramsdeii. j.gpj.egejjtative3 this option now would be contrary to what, from the 
 entire case, mirst be inferrted, was the contract and understanding of 
 these partners, inequitable and unjust. 
 
 Of the general rule that the representatives of a deceased partner 
 have this election, when the partnership is continued without their as= 
 sent, there is no doubt. 
 
 But here this interest is vested in one of the partners who has coil- 
 sented to the continuance of this copartnership ; the reason of the 
 rule ceases, and he cannot bte permitted to share in a manner differ- 
 ent from, and in violation of the manifest understanding of the par- 
 ties. 
 
 Although not embraced in the petition for a rehearing, it is urged 
 that rent, instead of interest, should be charged upon the share intht; 
 mills, and real estate originally belonging to Bond. Such was my 
 first impression. 
 
 The whole matter of the negotiation after the death of Bond, is 
 left very obscure ; no terms or conditions satistactorily established 
 in the pleadings or proofs. The master, in fixing upon a reasonable 
 rent, must, in fact resort to the profits made by the mills which form- 
 ed the principal business of this copartnership, and it will, in fact, by 
 changing the decree in this respect be but allowing profits by anoth- 
 er name, which the case made, will neither call for nor justify. 
 
 There is much that is obscure in this case, but upon the whole I 
 think that the equity of the case does not call for or justify the relief 
 sought for by the petition for a rehearing. 
 
 Motion denied, and the order for a stay of proceedings vacated.
 
 CASKS IN CHANCERY. 59! 
 
 John E. ScuwAhz, et. al. vs. Tunis S. VVki^dell. FiriiCircuU- 
 
 A plea of a 6tale;l accoun! must aver llie accounls E(!liled all dealings bclwdcn the panics; that s'chuari. 
 xhc-atcOutita were just ami /air, ami due, andtli:?Sts avcriiieiile must be supported by un an- ,,. *': .. 
 swer to the same effect. 
 
 A plea of a release unsupported hy an answer is Insufficient. 
 
 The biliof complaint alleges that on the 6th of McLtch, 183G, Tu- 
 nis S. Wendell, who was then acting as trustee of the complainant, 
 Catharine Schwarz, inquired of said Catharine whether it was not 
 probable, that the interests which the co-heirs of Abraham Sheridan 
 held in common with said Catharine in 17 inlots, and 4 out lots in the 
 Borough of Erie, Pennsylvania, could be purchased ; adding at the 
 same time that he had received Ati offer for the whole property. Af- 
 ter some conversation between the said Wendell and the complain- 
 ant, John E. Schwarz, husband of said Catharine, it was proposed 
 by Wendell and assented to by said John E. Schwarz v^-ithout con- 
 sulting Catharine Schwarz, the cestui que trust, that he, Wendell, 
 should raise sufficient money to buy the interest in said lots, not held 
 und owned by said Catharine, and for that purpose, he said Wendell, 
 should visit the city of Philadelphia where the persons owning the 
 property resided and endeavor to purchase the same ; and for ^his 
 trouble should receive one litilf of the profits arising from the pur- 
 chase of said lots. That on the day following this interview, the said 
 John E. and Catharine came to the city of Detroit at the solicitation of 
 Wendell, and the said Wendell then required said Catharine to exe- 
 cute a note of that date for !?^4000, J)ayable in 90 days to him or his 
 order at the Bank of Michigan, to enable hinn to raise the necessary 
 means to purchase the property. Against this propcsition John E. S'z. 
 protested and said it was a variation from his (Wendell's) proposition 
 of the day before, to furnish the money, and that to require the said 
 Catharine to furnish the money and give him, the said3_Wendell a 
 share in the expected profits, would be unjust, to which Wendell re- 
 plied, that he had made his calculations and preparations to commence 
 his journey, and if they declined sending him, $2000 would not in- 
 demnify him against the damage he would thereby suffer. The said
 
 396 CASlES IN CHANCERY. 
 
 First circuit Cathai'ine then without understanding the proposition or terms upon 
 which Wendell proposed to buy said property, and being urged by 
 her husband, John E. Schwarz, and the said Wendell, and acting on 
 iheir advice, executed the said note and deliverfed it to Wendell. 
 
 Immediately after the said Wendell drew up the memorandum of 
 Agreement, set forth in the bill of complaint between himself and the 
 said John E. Schwarz, on thepar^of said Catharine, reciting that, as 
 he had procured on that day $4000 from the Bank of Michigan for 
 !he purpose of purchasing tlie interests of Richard P. Harding and 
 John G. Thomas in the 17 inlots and 4 out lots, in the Borough of 
 Erie, Pennsylvania ; that he, said Wendell should immediately pro- 
 ceed to Philadelphia for the purpose of purchasing the said property ; 
 and that he should have one lialf of all the profits arising from the 
 purchase of said property, or if he succeeded in only, purchasing part 
 of the property, he was to have one half the profits on the portion 
 acquired, and his expenses. And it was further provided in said a- 
 greement if he did not succeed in making the purchase, said Catha- 
 rine should pay his travelling expenses merely, and it wasalso agreed 
 that if he purchased any other property it should be for the benefit of 
 the said Catharine, The bill alleges this memorandum wna signed by 
 the said Wendell and Jbhn E. Schwarz without the knowledge, di- 
 rection or consent of the said Catharine. On the 8th l\Iarch Wen- 
 dell started, having previously obtained, the amount of the note made 
 by said Catharine of the Bank of JMidiigan. On the 19th JMarch he 
 purchased of John G. Thomas and wife their interest in said lots, be- 
 ing one undivided third part, for $1200, and took the title in his name 
 as trustee of the said Catharine. Wendell then made other purcha- 
 ses of real estate for said Catharine to the, amount of about 81,600, 
 and paid iherefor out of the money derived from §aid note of §4000. 
 Complainants cannot state the amount precisely of all the purchases 
 as no account of said $4000 has been rendered, and all the deeds not 
 being in the possession of the complainants. 
 
 Bill further states that no part of said $4000 note has ever been 
 repaid to the complainants, but alleges that a large sum remains un- 
 expended for the use of the said Catharine, and unaccounted for by 
 said Wendell. The $4000 note became due on the 10th of June, 
 183G, and on request of Wendell, that some other person should be
 
 CASES IN CHANCERY. 307 
 
 procured as an endorser on the note which was to be made to renew nrsi ^^ircim 
 the one falling due ; the said Catharine procured Eurotas P. Hastings sciiw.ir/.. 
 to endorse the same. This renewed note when it became due at the wcmtcii. 
 bank on tiio 31st of August, 183G, was paid by said Wendell out of 
 money belonging to said Catharine. 
 
 Bill further states that Wendell on or about Sept. 3d, 1836, men- 
 tioned tliMt he had a chance to sell his share of the Erie property to 
 one Abijah Fross, who complainants believe was a man of little or no 
 credit or responsibility, for the sum of $jOOu, but offered to sell it 
 to said Catharine, and lake a certain mortgage which she held against 
 one Joshua Boyer, and to receive the balance in a note of hand on 
 long time, to which said complainant, John I'^ said he would consent 
 if Catharine was willing to agree thereto. In a t''ew days after an 
 assignment of the mortgage and a note for the balance of the -S'SOOO 
 was prepared, which the said Catharine declined signing, saying that 
 the said Wendell must wait for his share of the profits until the pro- 
 perty was sold. 
 
 The bill of complaint further states that afterwards and on or about 
 the commencement of 1837, John E. and Catharine Schwarz, on the 
 one part and Wendell on the other, became dissatisfied with each 
 other, and it was agreed between them that the said Wendell should 
 transfer all the trust property in his possession to the complainant, 
 Eurotas, P. Hastings appointed by said Catharine as her trustee to hold 
 the same, and papers, deeds and conveyances were prepared, and on 
 the 28th January, 1337, said John E. and Catharine and Eurotas P. 
 met said Wendell to have him execute the said deeds, that on the same 
 day after the deeds were laid on the tal)le, but before their execution 
 said Wendell presented and required said Catharine to sign as an im- 
 plied condition of his transferring said trust property, a note bearing 
 date that day for $3,980 24, payable in three years from date to said 
 Wendell or bearer. That said demand was a surprize upon com- 
 plainants, the said Wendell also at the same time produced a memo- 
 randum not intelligible to them, wherein he charged said Catharine 
 §5000 for his share of the Erie property, and after deducting cer- 
 tain items pi'esented the said balance of 83,980 24. 
 
 The said Catharine insisted that the demand of said Wendell was 
 unjust, but he insisting upon it, she for the purpose of avoiding any
 
 398 CASES IN CHANCERY. 
 
 Firstcircu.i. difficulty, aT\d lo get the property out of his hands, after hastily con- 
 sulting with John E. Schwarz, signea said note. Wendell, before 
 signing the deeds requested said Hastings as trustee of said Catha- 
 rine to sign said rote, and he without any knowledge of the facts and 
 circumstances and at the request of said Catharine, signed it. The 
 note was delivered to defendant and the conveyances executed and 
 delivered. 
 
 To the bill the defendant filed a plea. 
 
 The plea of the defendant states that at the time when the defen- 
 dant assigned the trust estate to Hastings as is stated in the bill, he 
 rendered to the said Catharine and Hastings, an account of all mo- 
 ney and properly received by him as trustee, and an account was 
 then taken between the parties of all money received and paid out 
 by defendant as such trustee, and all his transactions as such trustee, 
 and on such accounting there was found due from said Catharine to 
 said defendant 84,160 63, and that balance was stated, agreed upon 
 and acquiesced in, by the said Catharine, Eurotas P. and John E. and 
 thereupon defendant took a note from and executed by the said John 
 E. for $180 59 and he then took from said Catharine and EurotasP. 
 as trustee, another note executed by them for $3,980 24, payable to 
 defendant or bearer, three years after date, with interest at six per 
 cent, per annum, and dated the same day, January 28, 1837, thes^id 
 two notes amounting together to the said sum of $'4,160 83, the for- 
 mer of which notes is in possession of defendant, but the latter has 
 been sold and transferred by him, 
 
 The plea avers the settlement of all things relative to the trust, 
 and the execution of an indenture by the said John E. and Catharine 
 and the said Eurotas P. as her trustee, and the said defendant of the 
 same date with said notes, wherein after reciting his having former_ 
 ly acted as trustee, his having executed deeds, entered into covenants, 
 and done other acts at the request of said Catharine and John E. 
 which might create a personal liability on his part, and his having as- 
 signed the trust, the said John E. for himself, his heirs &c., in con- 
 sideration of the premises and of the sum of one dollar paid, cove- 
 nanted and agreed to save harmless and indemnified, and keep defen- 
 ded the said defendant of, and from all acts, deeds and covenants, by 
 him as such trustee done or executed, and from all liabilities existing
 
 CASES IN CHANCERY. 
 
 or vvhicli might arise by reason of liis having acted as sucli trustee, 
 
 and to reimburse him for all losses he might be compelled to sustain sciiwarz. 
 
 by reason thereof. And the said Eurotas P. for the like consideration Wcndcii. 
 
 covenanted and agreed in like manner, as the said John E. so far as the 
 
 funds and property belonging to the said Catharine, and in his hands, 
 
 as trustee, would enable him, and to tliat extent and no more. 
 
 ,JoY&; Porter, for complainants. 
 
 The plea is insuflicient for two reasons. 
 
 J:<'trst . It is not avered in the plea that the account which was 
 stated was a true and just account, to llic best of the defendants know- 
 ledge and belief. This is necest^ary, although the bill docs not im- 
 peach the account on the ground of fraud or error. 3 J. C. R. 389, 
 339,390,3!)!; BcamesPL^m; S AlL R. 10; Coup. PI. 279; 
 Mi/f. PL 2G0; 4 Paige R. 195. 
 
 Second. The plea does not [)ut in issue thp matters charged in 
 the bill, ll does not deny the con.structive fraud alleged, nor the 
 imposition. The plea should deny the fraud charged, or the facts 
 which constitute the fraud. 4 J. C R. Q9U ; 3 Paige, i?. 277, 278, 
 ♦.^, Al/;. R. 119. 
 
 D. Goodwin, in support of the plea. 
 
 The plea sets Ibrtii an accounting, settlement, notes, fur balance, 
 and an agreement by the complainants to indemnify the defendant 
 against all his doings as trustee, and all los.ses and liabilities arising 
 therefrotp. 
 
 Pirsl. To a bill for an account, an account stated and a settlement, 
 constitute a good plea in bar, and such account can be opened only in 
 case of a pal|)able mistake or iVaud. So a release is a good bar to such 
 or any bill, and can only be set aside for fiuud. 2 Cond. Rep. 110. 
 
 Second. Here notf)nly a settlement and a nuie i'ur the balanct; due 
 and agreed upon on accounting are shown, but also an agreement by 
 (hese very complainauLs to indemnify the defendant in respect to the 
 matters complained of. This is stronger than a release. If com- 
 plainants succeed, defendant has directly an action against them co- 
 extensive with their recovery. This a Court of Chancery will qever 
 tolerate, on the contrary, if complainants could for the cause alleg- 
 ed, proceed and recover at law, a Court of Chancery would upon this 
 
 Vol. I. 51
 
 400 CASES IN CHANCERY. 
 
 I- irsi Circuit. f^g,.ee^-^-,(3JJt enjoin them from so d oing and prevent the cross actions 
 
 sdivv;irz. On the covenant Schwarz and Hastings arc personally liable, as Wen" 
 
 Wciidcii dell was on the note he gave to the bank. 2 Wheat R. 45; 4 Pet Cond. 
 
 Rep. 25; 2 Am. Com. Laic, 103 ; 8 Coio. R. 81 ; 9 John. R. 334; 
 
 7 Coiv. R. 453. 
 
 Third. Upon the bill there is not enough shown to entitle com- 
 plainants to relief. The settlement was long after the transactions 
 out of which the complaint arises, and surely parties, cestui que trusts 
 as well as others, may settle their own affairs, and here it is done* 
 1 Pet. Dig. 432 ; 1 Bald. C. C. R. 418. A cestui que trust 
 whether feme covert or otherwise, is in equity owner of the estate, 
 and may devise, alien and incumber for debts. A married woman may 
 even mortgage the estate held in trust for her husbands debts, 1 
 Madd. R. 453 ; 2 Kent Com. 162. 
 
 Fourth. The agreement to indemnify (which is tantamount tio a 
 release and more) is not mentioned in the bill. It must have full and 
 complete elTect. It forms a perfect bar and could only be set aside 
 for fraud, clearly and conclusively shown, and upon allegations and 
 averments in a bill framed with that view. 
 
 The Chancellor. — The plea in this case is insufficient. It 
 n)erely sets up the settlement, release and covenants, and that the 
 note was given for the balance found due to him. It does not state 
 the manner in which the account was rendered. 
 
 It is alleged in the bill that the claim for which the note in ques- 
 tion was given, arose from the profits of the speculation upon the 
 Erie lots therein mentioned ; that the profits, if any, arose from 
 the use of the funds of the cestui que trust, and that the amount was 
 presented on a slip of paper, and unintelligible, and that the pres- 
 ent trustee, Mr. Hastings, executed the covenant without any knowl- 
 edge of the facts. 
 
 The rule is very well slated by Lord Reddesdale in the case af 
 Roche vs. Morgell 2 Sch., Lcf. 726- He says : 
 
 "Upon the argument of a plea every fact stated in the bill and 
 " not denied by the answer in support of the plea, must be taken as 
 ♦' true. The plea to the relief (of a stated account,) ought to have 
 " averred that the accounts, settled all dealings between the parties , 
 " that the accounts -were just and fair and due ; and these averments
 
 CASES IN CHANCRRY. 401 
 
 "oiiglit to have been supported Ijy .in answer to llie same cllrcl.' rir»u'irciiii 
 
 The same rule is also substantially staled by tlic same high autlior- siiiu-arz 
 ity on the subject oi' pleading in Mil. Pi. 2G2, &c. There arc wemicii. 
 many other authorities sustaining this rule. 
 
 Without going into the consideration of the other point raised at 
 the hcaiing as to the relation of the i)arties as trustee and cestui que 
 trust at this time, (which would now perhaps be admitted,) I must 
 say that this seems to me a very proper case for the application of 
 the rule. The covenant entered into by Mr. Hastings, the new trus- 
 tee, and the other complainants under the circumstances alleged in 
 the bill, cannot vary the rule. 
 The plea must be overruled. 
 A rehearing of tliis cause on the plea filed was granted. 
 
 JoY&; Porter, for complainants. 
 
 D. GoodNVin, for defendants. 
 
 The Chancellor. — A plea is a special answer to a bill demand- 
 ing the judgment of the court in the first instance whether the special 
 matter urged by it, does not debar the complainant from his title to 
 an answer which the bill requires. 
 
 The rule as to pleas which was stated on a former occasion is ad- 
 mitted to be the correct one ; the propriety of its application to the 
 case under consideration is however questioned. 
 
 It is not necessrry to reiterate at much length the allegations of 
 this bill as they were before fully stated. The allegation that this 
 claim of five thousand dollars in substance and fact arose from the 
 use of the trust funds, used in a supposed speculation in lands at 
 Erie is not denied. It is further alleged that this demand was unex- 
 pectedly made when the parties had met together to execute the 
 deeds. That it was a surprise upon the cestui que trust, that the de- 
 fendant insisted that the cestui que trust should purchase this interest, 
 that he insisted upon its present settlement, that it was yielded to has- 
 tily and for the purpose of getting the property out of the hands of 
 the defendant; that the new trustee signed the note without any 
 knowledge of the facts and circumstances stated in the bill. 
 
 It is farther charged that no part of the $4,000 received by the 
 trustee has been repaid to the complainants or any of them, and that
 
 4()2 ' CASES IN CHANCERY. 
 
 First Circuit jj^^y ^j^jjy {jgijeve that a large balance of said money still remains 
 Sciivvarz. i" ^^he hands of said defendant, and unaccounted for by him, and that 
 Weniirii the account was presented on a slip of paper and unintelligible. The 
 bill also prays an account of this money, as well as to be relieved 
 against the note, and for such further and other relief as the circum- 
 stances of the case may require. Now whether these allegations 
 relate to one transaction or to one or more items of a complicated 
 account can make no difference ; and without reference to the cove- 
 nants set up by way of defence in the plea, the plea unsupported by 
 an answer cannot bar the complainants from an answer to which 
 they are entitled, and the rules of pleading as before stated are cor- 
 rect, and applicable to this case. 
 
 But it is Insisted that the covenants not being alluded to in the bill, 
 cronstituie a bar to the relief. The indenture containing these cove- 
 nants bears even date with the alleged settlement and note. It is as 
 follows, as stated in the plea (after the preliminary recital,) that 
 '" this defendant had eJceclited various deeds, entered into se^^eral 
 "covenants and done other matters at the request of the parties 
 " of the first part, (the isaid Catharine and the said John E.,) — 
 "some or all of which might then create a personal liability on the 
 " part of the defendant, and thai this defendant had by deeds of equal 
 " date therewith assigned overto the said Eurotus P. his heif-iS arid as- 
 " signs at the request and by the desire and appointment of the said 
 " Catharine, all the said trusts and all the trlist property belonging 
 *' to the said Catharine heretofore vested in him; and that the said John 
 "E. in and by the said indenture, in consideration of the premises and 
 •' of the sum of one dollar therein acknowledged t6 have been received 
 "from this defendant, did for himself, his heirs, executors and ad- 
 '• ministrators, covenant, promise and agree to and with this defend- 
 ♦ant, his heirs, executors and administrators, that he, the said John 
 " E., should and would well and truly save harmless and indemnified, 
 " and keep defended this defendant and hislegal representatives of and 
 " from all acts, deeds, covenants and other doings which he, this de- 
 '= fendant at any time theretofore had done, committed, executed or 
 '♦entered into as trustee as aforesaid, or in the execution of the 
 " said trusts, and of and from all consequences and liabilities of ev- 
 "ery kind or nature then existing, or which might thereafter arise,
 
 CASES IN CMANCRRY. 40:{ 
 
 " tor or by reason of his (tliis (lefendant's) having acted as suchtrusl P'''»' *''•■'•""■ 
 " tee, and should and would reimburse this delendant and liis said rep- ^, i,wurz 
 " resentatives all such losses or sums of money, it" any, as ho or they wviMieii. 
 " miglit be legally compelled to pay or sustain for or by reason ot' 
 " his (this defendant's) having accepted the said trusts." 
 
 It was held in the case of Roche vs. Morgell, liuU a plea of a re- 
 lease unsupported by an answer was insuflicient) although the same 
 objection was there urged, which is now taken, that the bill did not 
 refer to it, and pray that it might be set aside. 
 
 Certainly no greater effect can be given to this statement than to 
 an express release. On the contrary, 1 have strong doubts whether 
 the covenants set out in this plea were intended to extend to, or do in 
 fact reach the case made by the bill at all. 
 
 The manifest intent and object of this instrument was to indemnify 
 and save harmless the trustee from any act done by bim in the exe- 
 cution of his trust. The prayer of the bill among other things, is 
 that he may account for money belonging to the trust' fund, which 
 they charge to be in his hands unaccounted for.' 
 
 It would in my view be going very far to say that these covenants 
 shall bar and preclude the complainants from an answer, when in 
 fact they were intended for another and a different purpose. iBut I 
 do not intend to dwell upon this view of the case, as it is not now in- 
 tended to preclude the defendant from whatever benefit he can 
 properly derive from tliis defence when supported by an answer. 
 
 Enough has been shown, 1 think to justify the conclusion that the 
 plea is insufficient. To obviate any embarrassment which may l)e 
 apprehended from the form of the entry, the order will be that the 
 plea stand for an answer with liberty to accept.
 
 404 CAf^ES IN CHANCERY. 
 
 •2m(I lirciiit. Daniel J. Sixclaiu, vs. Addison J. Comstock, et. al. 
 
 Siiiiliiir. AVIren the proprietors of a village or lown have dedicatetl lots for streets or for a public square 
 
 Comslock. and have sold lots wiili reference to such plan, lliey cannot rcsiiine and exercise ads of 
 
 (ownership over the landtlins ilcdicalcd, wliicli will deprive tliclr grantees of any privde- 
 
 ges which lliey might derive from having such streets or squares left open. But in every 
 
 such case the drdicalion for ilie purpose claimed, must be made clearly apparent. 
 
 Where a Irtl in the village of Adrian was granted lo the county for the purpose of erecting n 
 court house and jail thereon, and ihe county erected a court house and jail on another and 
 different lot in the same village; it was held that this was sufflcinnt evidence of the refusal ofthe 
 county lo aecepl the donation according lo the condition of the grant, and that it must in fact 
 revert lo the donor; and that persons inirchasing lots adjoining had no right to insist that this 
 lot should be kept open as a public sijuare or common. 
 
 Motion to dissolve injunction on bill and answer. 
 
 Tiie bill of complaint alleges that the plan or plat of the 
 village of Adrian was laid out in 1827-8 by Addison J. Comstock, 
 one of the defendants, who was the owner of the lands constituting 
 the same. The plat of said village was duly recorded in the Regis- 
 ter's office as required by the statute. On the plat lot number 14, 
 was given by the proprietor to the county of Lenawee, for a court 
 house and jail. At the time the village of Adrian was laid out, the 
 county seat of said county was at Tecumseh ; and it was the inten- 
 tion of the proprietor that lot 14 should be used as well for a public 
 square as for a court house or jail. That it had been so used from 
 the time said village was laid out with the knowledge and assent of 
 the defendant. 
 
 The bill states that the defendant sold lot 49, adjoining lot 14, and 
 described the same as bounded on the north by ihe public square ;^=- 
 that lot 49 had been subdivided and sold, and the purchasers had 
 erected on the same valuable buildings fronting on the public square 
 as described in the deed of lot 49, with the full belief that lot 14 would 
 always remain a public square for the common benefit of the inhabi- 
 tants of said village. The bill alleges fhe defendant had full knowl- 
 edge of the expectation of those who erected the buildings fronting 
 lot 14, and made no objection thereto. 
 
 The bill also alleges that the defendants with others made additions 
 to said village plat, and procured to be published a map of the said
 
 CASES IN CHANCERY. 405 
 
 village, upon which lot number 11 was designated as a jmblic square, -""' '^■"■'^"" 
 and another lot was designated as the site of the court house and jail. ^|,n.|;„r. 
 and called Court House Square. Loii"tock. 
 
 That the complainant believing lot 14 would always remain open, 
 purchased one of the subdivisions of lot 49, fronting on the public 
 square or lot 14. 
 
 By an act of the legislature approved 21 March 183G, it was de- 
 clared the county seat should be established at Adrian, from and af- 
 ter the first Monday of November, 1838- On the 6th of June, 1837, 
 the defendant, Comstook, deeded to the Supervisors of the county ol 
 Lenawee, a piece of land at or near the village for a court house and 
 jail. On the 5th of June, 1837, the defendant, Comstock deeded lot 
 14 to George Crane, his heirs and assigns in fee simple without con- 
 sideration. Immediately after this conveyance Crane caused public 
 notice to be given, that he would sell at public anction lot 14, the 
 same having been subdivided into ten lots. Tiie complainant and 
 others also who had purchased parts of lot 40, as subdivided, caused 
 public notice to be given before and at the lime of the selling of the 
 subdivisions of lot 14, that Crane had no right to sell and convey the 
 same, as it was reserved for a public square, and private buildings 
 could not be erected thereon, and that his right to the same would be 
 litigated. Lot 14 as subdivided was sold however, and tlie defendants 
 became the purchasers. The bill charges that the defendants are 
 about to erect buildings on lot 14, as subdivided, by which the com- 
 plainant will be greatly injured, &c. 
 
 The answer admits tne village of iVdrian was laid out as stated, and 
 that lot 14 is on the plat reserved to the county of Lenawee for a court 
 house and jail. At the time of the laying out of the village of Adri- 
 an the county seat was at Tecumseh, and it was understood and rfe-. 
 dared that lot 14, was only to be used for a court house and jail by 
 the county, and for no other pur])0se whatever ; and the statement 
 was repeatedly made to the citizens of Adrian, and the defendant 
 expected if the same was not used for the purposes for which it was 
 reserved it would revert to liiin. Answer admits that on the first of 
 iMarch, 1828, defendant Comstock acknowledged the plat of the vil- 
 lage of Adrian, and under his hand and seal granted the streets and 
 lot 14 for the purposes named and expressed on the map of the plat
 
 406 CASES IN CHANCERY. 
 
 2ii(i ciiTuiiQi g.^ij village, which was duly recorded. Lot 14 has been open from 
 Sinclair. ^^^^^ Umc until the present with the knoAvlege of the defendant, but 
 
 Conrsiock. vvithout any express assent ; Admits there was a bond or agreement 
 asset forth in the bill to sell lot 47, in which it was described as bounded 
 on the north by the j)ublic square, and on December 28, 1835, in ac- 
 cordance with the provisions of the bond, a deed was made bounding 
 it in the same manner. The subdivision of lot 41) is admit- 
 ted, and the sales to the com[)lainants and others, and the erection of 
 buildings; but it isdenied that the complainant had any assurance that 
 lot 14 would remain open, nor had he any reason to believe the defen- 
 dants would ever assent to it remaining open and unoccupied, for Com- 
 stock had asserted and given notice before and at the time of the sale 
 of lot 49, and before and at the time of the erection of the buildings 
 thereon, that he should claim lot 14 if the county did not use it for 
 the purpose specified in the grant to the county. The answer admits 
 the making of an addition to the village, the publishing a map, as 
 alleged in the bill upon which lot 14 is designated as a public square, 
 and another lot is called "Court House square," but denies that Coni- 
 stock, the defendant ever assented to the map's being made, and 
 avers that it docs not correspond witli the oiginal on record; admits 
 the change of the county seat from Tecumseh to Adrian in Novem- 
 ber, 1838 ; athnits that defendant did convey to the county of Lena- 
 wee a lot for a court hou.^e and jail in June, 1837 ; admits that de- 
 fendant, Comstock, on June 5, 18iJ7, conveyed lot 14 to Crane ; ad- 
 mits that by act of the Legislature the Board of Supervisors had the 
 authority to fix the county seat or court house on such lot as might be 
 conveyed to them, and that they did so fix the same on a lot between 
 Front and Toledo streets, and the defendant conveyed the same to t^ie 
 Supervisors on the 7th of March, 1837, and that it was understood by 
 the Board of Supervisors as well as dofendont, Comstock, that lot 14 
 reverted to the defendant. Comstock ; but he agreed at that time to 
 give lot 14 or the aval la thereof to the Board of Supervisors for 
 the purpose of erecting the county buildings ; and George Crane was 
 agreed upon as commissioner to receive the title and sell and dispose 
 of the same for the benefit of the county. The deed was made to 
 Crane on the day mentioned in the bill, and Crane gave back an in- 
 strument declaring he held the same in trust for the county to be dis-
 
 CASES IN CHANCERY. 407 
 
 posed of, and the avails used in erecting county buildings; admits that -"'' <-''''<:"''• 
 
 Crane gave no other consideration than as above mentioned, and that «;jnc;ai,_ 
 
 he sold the same as trustee for the county duly appointed, at public cou"i'ock. 
 
 auction as alleged in the bill ; admits the complainant gave notice 
 
 that lot 14 was a public square, (Sec. as mentioned in bill of com-. 
 
 plaint ; admits defendants are about to erect buildings on lot 
 
 14, as subdivided, but denies that it will materially obstruct the 
 
 view of the complainant from lot 49, as there is a street 30 feet 
 
 in width, running on the line of lot 14 and betweenthat and lot 49. 
 
 The defendants pray to have the same advantage as though they 
 
 had demurred to bill of complainant, &c., «S:c., 
 
 A. Felch, in support of the motion. 
 
 The original grant of the lot in question (No. 14 in the village of 
 Adrian) was a conditional one, being given for a court house and 
 jail. The county buildings of Lenawee county were established by 
 law at the time of laying out the village of Adrian at Tecumseh. 
 
 Whether a condition he jjrecedeiit or subsequent will depend on the 
 intention of the parties creating the estate. Findley vs. King, 3 Pet. 
 R. 346. 
 
 The county seat could not be changed without an act of the Legis- 
 lature, nor could the lot in question be used for the purpose designated 
 without such an act. The intention of the parties must have been 
 therefore to set apart this lot for the purpose of putting upon it a court 
 house and jail, if the Legislature should pass such an act. The 
 building of a court house and juil, or at least an acceptance of the 
 grant for that purpose, was necessary before the grant took elfect and 
 and until that was done, both the fee and the possession remained in 
 Comstock. 
 
 In the case of the First Parish, in Sutton \s. Cole, 3 Pick. 332, 
 land given for the use of schools, it was decided could not be recover- 
 ed by the donors until they had accepted the grant or made an entry 
 under it. 
 
 in Hayden vs. Inh. of Stoughton 5 Pick. R. 528, there was an ac- 
 ceptance of the grant by vote of the defendants. 
 
 The act of the legislature passed in 1836, establishing the seat of 
 justice at Adrian from and after November 1, 1838. gave to the Sa. 
 
 Vol. L 52
 
 40S CASES IN CHANCERY. 
 
 2nd Circuit, pervisoi'-s the right to put the county buildings on this lot, or such oth- 
 Sincinir. ^1" ^^"ds as might be given for that purpose, in the village of Adrian. 
 conis'cck They were subsequently placed by them on another lot, which was 
 deeded for that purpose by said Comstock March 7, 1837. Tlie ob- 
 ject for which the lot in question was given, was therefore never ac- 
 complished ; the lot was never accepted nor used for a court house and 
 jail ; on the contrary the act of the Board of Supervisors was an ex- 
 press rejection of the lot, and an acceptance of another from the same 
 donor. 
 
 A condition precedent must take place before the estate can vest or 
 be enlarged, and until the condition be performed the estate cannot be 
 claimed to vest. 2 Black Com. 154. 
 
 The condition must be literally performed, and even a court of 
 chancery will not vest an estate when by reason of a condition pre- 
 cedent it will not vest in law. Popham vs. Bomjifield, 1, Ves. 83, 4 
 Kenes Com., 125, Vanhorn vs. Dorrena2 DaU. R. 317,-SAep. Touch. 
 450. 
 
 II. If it be conceded that the grant took effect immediately on recor- 
 dino- the map of the village, the occupation of the lot for a court house 
 and jail was a condition subsequent, and the location of the county 
 buildings on another lot was a relinquishment of all right under the 
 grants, and the premises reverted to the donor. 
 
 On condition broken the whole property reverts. Shej}. Touch 120, 
 Gray vs. Blnnchard^ 8 Pick. R. 284. ' 
 
 Lands given on condhion that the public buildings of the parish 
 be erected thereon revert to the donor, if the seat of Justice of the 
 Parish be removed by an act of the Legislature. 4 Ke7it's Com., 
 126. 
 
 So a neglect to comply with the condition to build a school house 
 for twenty years operates as a forfeiture of a grant. Hayden vs. 
 Inh. of Stoughton, 5 Pick. R. 228, Lessee of Sperry vs. Pond Sfc, 
 5 Ohio R. 387 ; Heirs of SuJlivant vs. Commissioners of Franklin 
 Co.,'A OkioR.,S9. 
 
 This too is the express provision of the statute of the state under 
 which the grant was made. Statute of 1833, pogc 135. 
 
 III. The part of the lot on the south side of the premises- being
 
 CASES IN CIIANCKRY. 409 
 
 deeded in December, 1335, to C. Iloag, and described as bounded on -'"' '^'f'""''- 
 the north by the public square, gave no right as to lot Xo. 14. It gi„ciair. 
 was a mere description of the lot conveyed. The sale was made of comstcck. 
 a village lot by its number, and in reference to the village plat on re- 
 cord. The record showed the true character of the grant of lot No. 
 14, and the term ''public square'' could have been understood only 
 as applying to lot No. 14, as there given and not otherwise. The 
 record showed that the only interest which the public could have in 
 it was to occupy it for a court house and jail. 
 
 But the record is notice lo the world of the character of the grant. 
 Price. ^' al. vs. Methodist Church, Ohio, R., 515. 
 
 The term way or highway has in law a fixed definite signification, 
 always implying certain legol rights. Not so with the term public 
 square. It has no fixed legal meaning. It implies no covenant and 
 works no estoppel. It is like any other term description of limits, 
 and is to be taken in its general acceptation. This by no means im- 
 plies that it should be what the complainants claims, in open, unen- 
 closed space. And in this case the answer shows, that at the time of 
 the conveyance to Hoag, and subsequently, it was understood and de- 
 clared to mean that the lot was intended for public use for a court 
 house and jail and not for a str-eet or common. 
 
 Besides, the lot conveyed to Hoag neither had nor required these 
 premises to give access to it. It had its front or main street, and has 
 been subdivided since the purchase was made of Comstock. 
 
 IV. If the lot did not revert to Comstock, but the fee is still in the 
 county under the grant, the complainant is in no better position and 
 must fail in the suit. By the grant of a lot for a court house and jail, 
 no right is given to the owners of adjoining lots to require it lo bo 
 kept unfenced, or without buildings or open as a street or highway 
 Indeed this would defeat the very object of the grant. 
 
 In the case of the Cambridge Common, it was decided that <>nclo- 
 singitwitha fence, excluding travel by horses, carriages, teams, 
 planting trees, 6z;c., was not inconsistent with the grant ; but the land 
 being appropriated to a specific public use, a highway over it would 
 be inconsistent with the grant. 16 Pick. R. 87. 
 
 Under the grant for a court house and jail there is a full right not 
 only to enclose the premises and to erect thereon a court house and
 
 410 CASES IN CHANCERY. 
 
 2ml Circuit, jai}, but bams, stables and all necessary outbuildings for the use of 
 'Sinclair ^^^ jailor and others necessarily having charge of the public buil- 
 Convstock. dings. Jacksouxs. Pike, 9 Coio. R. 69. 
 
 And an occupying of the premises in the ordinary mode of occu- 
 pying village lots is not inconsistent vi^ith the grant. Id. 
 
 V. So far as even the imaginary rights of the complainant can go 
 the lots on the south side of the premises in question are abundantly 
 provided for, in the location gratuitously by the defendants of a street 
 thrty feet wide adjoining lot No. 49. 
 
 VI. Here was no dedication of the land to the public for the pur 
 poses claimed in the bill. Such dedication supposes an act to be done 
 by the owner in fee ; this act must be unequivocal, and evidence an 
 intention to grant the land for the purposes claimed where the origin 
 al owner continues to exercise any acts of ownership over the prem- 
 ises, or denies the right of the public to it, or claims rights in himself 
 inconsistent with such dedication, it prevents a dedication. Even a 
 disability to exercise acts of ownership over it will prevent it. 5 
 Taimt. 137 ; 10 Serg. ^ Raw. 412 ; Wood vs. Veal, 5 Barn. 8f Aid. 
 454 ; Harper vs. Charlesu-orth, 1 Barns. Sf Cres. 674 ; Price Sf al. 
 vs. Methodist Church, 4 Ohio, i? 15. 
 
 The facts disc losed by the bill and answer forbid the idea of a ded- 
 ication of the lot in question, to be kept open without fence and with- 
 out buildings. They show on the contrary that it was set apart for a 
 purpose totally different, and every act of the donor in reference to 
 the lot has been in accordance with the grant last mentioned. The 
 answer shows that before the deeding of the lot owned by complainant 
 at the time of deeding it, and subsequently to that time, he denied the 
 dedication of the lot for the purposes demanded in the bill, and claimed 
 full and perfect right to the same, subject only to the interest acquired 
 by the p ublic for the uses designated in the plat of the village of Adrian. 
 Baker, Harris & Millard, contra. 
 
 The estate conveyed to the county, is not properly a trust estate. 
 No trustee and cestiii que trust. The title is absolute, except that 
 they take on condition of devoting it only to a particular use ; and 
 equity would restrain from any other use. It conveys thefeeinpre- 
 ^enti, although the county seat was not then established at Adrian
 
 CASES L\ CHANCERY. 41 1 
 
 and there was no assurance that it ever would be. Suppose it never 2..acircui.. 
 had been,would the land have reverted 1 and if so, when ? And gi„^,^, 
 suppose it had been removed from Tecumseh to Palmyra, would the coiu'tock 
 land have reverted ? How does it appear but that the county seat 
 may 3til) at some time be established on this lot. Laws of Michigan 
 1833, page 531. 
 
 Comstock has dedicated the land to tlie public, and given reason to 
 expect that it Would always remain a public square. 
 
 1. By leaving it open and allowing ii to be so used from the time 
 of laying out the village. 
 
 2. By designating it as the public square, in solemn instruments. 
 
 3. By having maps lithographed and circulated, with this lot mark- 
 -ed as a public square, and another as a court house square, after the 
 county seat had been removed. Though the answer states that Finch 
 (Comstock, partner in the concern) procured the maps, it does not 
 deny a knowledge or participation on the part of Comstock, nor that 
 he circulated them. 
 
 These are unequivocal acts which amount to a grant to the public, 
 independant of the consequence on the original plat, and from which 
 ihe individuals concerned were fully justified in concluding that it 
 was always to be a public square. 
 
 The location of the court house and jail upon anotiier lot instead 
 of this, having been made by Comstock's own consent and procure- 
 ment, he cannot take advantage of it as a forfeiture. 
 
 Comstock having conveyed to Hoag, (under whom complainant 
 claims) and described this lot as the " public square, " and bounded 
 the lot conveyed, by the " public square, " is estopped from denying 
 that it is such. 
 
 The act. to provide for the recording of town plats, &c., approved 
 April 12, 1827, made it necessary for Comstock to make and record 
 a plat, bounding and specifying all the streets and public grounds, and 
 what the lands so described were intended for, and the acknowledg- 
 ment and recording vested in the fee of such land in the county ; and 
 the statute expressly recognised the title as in the county, by the pro- 
 visions, that such plat should not afterwards be altered, unless satis- 
 factory proof was adduced, that all persons orcning any lot or part
 
 412 CASES IN CHANCERY. 
 
 2n(i chnut. iJi(,,.^of had agreed lo stich alteration ; by this means protecting ac- 
 fmcWu- knovvledged rights of persons, who had purchased with a view to the 
 t'omstock. advantages o( the public ground so set apart ; and not subject to any 
 condition either subsequent or precedent. 
 
 The provisions in section four of the act to amend an act to pro- 
 vide for establishing seats of Justice, on page 534 of Laws of Mich- 
 igan, (1833) do not apply to this case; as this conveyance from Com- 
 stock was made under another and entirely different law, relating to 
 towns generally, and not to county seats, and under which the donor 
 could h'^ve no grounds for. claiming a reversion; and farther, if 
 it did ever apply to cases like the one now under consideration, it 
 can have no influence here, as it was in 1835 repealed, long prior 
 to anything done herein. 
 
 The Chancellor. — There is no doubt that when the proprietors 
 of a village or town have dedicated lots for streets or for a public 
 square, and have sold lots with reference to such plan, they cannot re- 
 sume and exercise rights of ownership over them, which will de* 
 prive their grantees of any privilege which they might derive from 
 having such streets or sqares left open. 
 
 But in every such case the dedication for the purpose claimed must 
 be made clearly apparent. The lot in question was granted to the 
 county of Lenawee for the purpose of a site for a court house and 
 jail. The original dedication shows that such was the special purpose 
 to which it was dedicated ; and the answer of Comstock, the origin- 
 al proprietor shows that it was granted for this, and no other purpose; 
 and stales that it was always so declared by him. 
 
 The proper authorities of the county of Lenawee designated an- 
 other, and a different lot for this purpose, and have actually erected 
 the court house and jail, on another and different lot in the village of 
 Adrian. 
 
 Comstock, the original proprietor having transferred this lot orig- 
 inally dedicated for a court house and jail, the present complainant 
 claims that it shall be kept open and uninclosed. Comstock, in 
 granting the adjoining lot to the grantor of the complainant describes 
 the adjoining lot as bounded on the public square. 
 
 If this lot 14 had been left open as a common, and not designated 
 upon the original plat as having been dedicated for that particular pur-
 
 CASES IN CHANCERY. n:) 
 
 pose, 1 should have no doubt tluit this would have been iield as sufli- -'"' ^'"'^""■ 
 cient evidence that this lot had been dedicated for the general use of jji„ciair. 
 the inhabitants of the village of Adrian. conisioek. 
 
 But when it appears by the public records that it was dedicated to 
 a particular purpose, it would seem that this phraseology' must have 
 been used merely by way of description and was not intended to, and 
 cannot change the character of the grant. 
 
 In order to sustain this injunction it is necessary to require that a 
 lot granted for one purpose, and to be used in a particular way, 
 shall in fact be devoted to another purpose, which requires it to be 
 used in a different manner. 
 
 The complainant claims that it shall bo kept open as a common, or 
 public square. The record shows that the only interest the public 
 had in it. was to occupy it as the site for a court house and juil ; and 
 the record must be considered as notice to the world of the character 
 of the grant. By a grant of a lot for a court house and jail, no right 
 accrues to the owners of adjoining lots, that it shall be kept open and 
 unenclosed. On the contrary, it is to be supposed that if occupied 
 for these purposes that it will almost necessarily be enclosed, and oc- 
 cupied by all such necessary outbuildidgs as may be appendant, such 
 as a jail yard, the usual stable and necessary outbuildings for the use 
 of the gaoler and his family. 
 
 The act of the commissioners establishing these buildings else- 
 where, seems to me a sufficient evidence of the refusal of the coun- 
 ty to accept this donation according to the condition of the grant, and 
 that it must in fact revert to the donor. 
 
 Whether this shall be the effect or not, this complainant has no 
 right to insist that it shall be kept open as a public square or common, 
 when from the terms of the grant it 'is apparent that such was not 
 the intention of the donor ; But on the contrary, from the object of 
 the grant, if accepted and used for the purpose intended, it must nec- 
 essarily have been occupied and enclosed. 
 Injunction dissolved.
 
 414 CASES IN CHANCERY. 
 
 3r(i circuii. Rodney C. Payne, vs. Robert B. Atterbury. 
 
 Payne. Where from the answer itself there is a strong presumption against tlie defendanta titles, 
 
 va. which ia impeached by the bill, the court will grant a receiver. 
 
 Atterburry » j . s 
 
 Nothing can be clearer both in law and equity and from natural justice than thatthe com- 
 plainant is entitled to the rents and profits from the time his title accrued; and the case ia 
 still stronger where there are large outstanding incumbrances ; and no part ot the rents and 
 profits is applied to keep down the interest, and the defendant is totally irresponsible, and is 
 holding over against his own deed. In such a case the complainant is entitled to a receiver 
 
 A receiver will be appointed in behalf of a vendor as against a vendee who has obtained 
 possession and refuses to pay the purchase money. 
 
 Where the answer admitted a deed referred to in llie bill and slated no fact which invali- 
 dated it, lut denied generally its validity, il was held to be insufScient — that it was swearing 
 to a conclusion tiie deed itself denied, when it should have staled the facts which made the 
 deed invalid so the court could pass upon them. 
 
 A party who attempts to impeach his deed in court, must show in what his equity consiata, 
 for as aquestion of law he is estoped from denying his own deed.. 
 
 A vendee vvho has paid the purchase money punctually, has a lien as against the vendor anala- 
 gous to that of a vendor against a vendee who has not paid the purchase money. 
 
 The bill in this case states that Dec. 8, 1838, defendant became the 
 purchaser of the N. E. qr. of sec. No. 14, town 7 S. range 17 W., 
 containing 159 28-100 acres ; also the N. W. fr qr. of sec, 13 town 
 7 S. range 17 VV., containing 136 46-100 acres. That soon after 
 such purchase defendant mortgaged the same to George W. Walker, 
 to secure the sum of $2,500 which, according to the belief of com- 
 plainant was for the purchase money of said premises. That anoth- 
 er mortgage was executed by defendants upon the same premises ta 
 John Hamilton, to secure the sum of $1,000, which according to the 
 belief of complainant was also for purchase money. That the defen- 
 dant purchased said premises subject to a mortgage made by John 
 Hamilton to Alfred Stanton for $2,000, also subject to a mortgage 
 made by Jacob Beeson to George Kimmel, upon which there was due 
 at the time of the purchase about $1,000. That defendant came to 
 Michigan from New York in the spring of 1839, and commenced 
 erecting a large flouring mill upon that part of the premises descri- 
 bed as the north-east quarter of section fourteen. That the defend- 
 ant was possessed of little or no means for carrying on and complet- 
 ing the mill, but relied on his credit and the chance of procuring
 
 CASES IN CHANCERY. 416 
 
 loans of money for that purpose. That August 14, 1839, defendant 'fJ^'ir^uu. 
 applied to complainant as cashier of the F. &; M. Bank of Michigan, Payne. 
 at St. Joseph, for a loan of money to be used in erecting said mill, Auerburry.. 
 and informed complainant that he had funds in the hands of Philip S. 
 Crooke of New York City, who would accept the drafts of defendant 
 and would certainly pay the same at maturity. That confiding in 
 these statements complainant made a loan of $2,000 to the- defend- 
 ant upon his draft drawn upon said Crooke, payable four months af-- 
 ter sight. That August 24, 1839, said Crooke accepted the draft in 
 writing thereon. That September 14, in the same year, defendant 
 again applied to complainant for another loan of $3,000 upon the 
 same kind of security, and complainant having confidence in the in- 
 tegrity of defendant, which was strengthened by the ready accept- 
 ance of the first draft by said Crooke, which had not yet matured, 
 complainant did loan and advance to defendant the further sum 
 of $3,000 to aid defendant in building said mill, and the defendant as 
 security therefor drew his other bill of exchange dated at St. Joseph 
 September 14, 1330, directed to said Crooke, payable sixty days af- 
 ter sight, payable to the order of R. C. Payne, Esq., Cashier, for the 
 sum of $3,000. Thai September 26, the same was accepted by said 
 Crooke in writing. 
 
 The bill further states tJiat prior to the drawing of the first men- 
 tioned bill or draft, defendant had borrowed $200, and had 
 drawn on said] Crooke to pay the same ; that said Crooke accep- 
 ted said draft, and defendant made provisions for the payment of the 
 same out of the money obtained on the $2,000 draft, thereby indu- 
 cing the complainant to believe he actually had money in the hands 
 of Crooke in New York. 
 
 The bill further states that the complainant commenced suits in 
 the Circuit court for Berrien county in the spring of 1840, on the 
 two drafts of $2,000 and $3,000, they having been protested for 
 nonpayment ; that the defendant, Atterbury, executed a deed of the 
 premises to Crooke, bearing date, March 1, 1839, for the considera- 
 tion of $7,800, subject to the mortgages aforesaid, which was recor" 
 ded June 24, 1840. The bill further states that in the summer of 
 1840, an attachment suit was commenced against Cwoke by thecom- 
 VoL. I. 53
 
 CASES IN CHANCERY. 
 
 plainant for the purpose of collecting the amount due on the drafts 
 Payne and the property in question was seized. That suit was finally settled 
 
 vs. 
 
 Atterburry. by the complainant agreeing to take a deed of the premises and pay- 
 ing for them $2,191, being the amount of some lien upon the premises 
 on which Crooke was liable and surrendering the two drafts drawn by 
 Atterbury, then amounting to §i5,299. On the 14th of October, 1840,, 
 this negociation was consummated, and Crooke deeded complainant 
 the lands described with the mills and appurtenances. 
 
 The bill states that various offers were made to the defendant for 
 the purpose of finally and amicably arranging the same, but he has 
 refused to do any thing towards paying the amount due, and will not 
 yield up the- premises to the complainant ; that a suit of ejectment 
 has been commenced against the defendant to obtain possession of the 
 property, but in the mean time the property is depreciating in value 
 from the neglect of the defendant who is insolvent and unable to res- 
 pond in damages. 
 
 The bill further states that the interest on the several mortgages 
 has not been paid up, but is suffered to accumulate by the defendant; 
 that the mill is out of repair, and from neglect of defendant there is 
 great danger of the dam being carried away, which will injure the 
 property to the amount of $1,500 to $2,000 ; states that the defend- 
 ant has made threatsto destroy the mill, and said complainant should 
 never have any benefit from it. The bill prays that a receiver may 
 be appointed of the rents and profits of the mill and property during 
 the pendancy of the suit in ejectment. 
 
 The answer admits the purchase of the property, and that it is 
 subject to the several mortgages mentioned ; admits the obtaining the 
 money on the drafts on Crooke, and that he paid the $200 draft out of 
 the money obtained on the $'2,000 draft ; admits the drafts were pro- 
 tested for non-payment, and that suits have been commenced against 
 him. His answer denies the deed to Crooke was valid, as it wanted 
 a proper acknowledgement as required by the statutes of this state, 
 but admits it has been placed on record in Berrien county, where 
 the lands are situated. The defendant says he always claimed the 
 property, and when the attachment suit was commenced against 
 Crooke, notified the complainant to that effect ; neither admits nor 
 denies the settlement between complainant and Crooke and the ta-
 
 CASES IN CHANCERY. 'HT 
 
 kittg of the deed from him as set forth in the bill of com|jlainant.— ^"^ ^"'"'"'"^ 
 Admits various propositions, and that they were not accepted ; de- ,..,j.ne. 
 nies that the complainant has peaceably and quietly attempted to ob- Aucruurry. 
 tain possession of the mill, or that the mill is out of repair, or has 
 been suffered to become in any way injured for want of repair, or 
 that he is insolvent and unable to pay the amount due to the com- 
 plainant ; admits the interest on all the mortgages has not been paid; 
 denies that he is abusing the mill or premises ; avers they are in good 
 condition ; admits he may have used hasty expressions about the 
 complainant's obtaining the property and deriving any benefit there- 
 from ; admits complamant has requested him to deliver possession of 
 the premises, which he refused, and that a suit in ejectment has been 
 commenced ; denies pretences, combination, &;c. 
 
 Green & Dana, Sol. for comp,, moved for the appointment of 
 a receiver in accordance with the prayer of the bill, upon the bill 
 answers and depositions showing the value, condition and situation of 
 the property. 
 
 V. L. Bradford & J. G. Atterbury opposed the motion. 
 
 The Chancellor. — From the case presented the complainant has 
 made out a legal title to the property in question. In the case of Still- 
 well vs. Williams, 6 Madd., R. 39, it is said "that where from the an- 
 swer itself there is a strong presumption against the defendant's title 
 which is impeached by the bill, the court will grant a receiver." The 
 answer of the defendant in this case shows or raises a strong presump- 
 tion of title in the complainant. It admits the deed to Crooke — the deed 
 fromCrooketo the complainant, and it states no facts which invalidate 
 it. It denies generally its validity, but that is swearing to a conclusion 
 which the defendant's own deed denies. He should state the facts 
 which make the deed invalid, that the court may pass upon them, and 
 not having done this, his deed must be held to bind him. The evi- 
 dence in the case raises a strong presumption that the defendant in 
 attempting to evade the payment of his debts was so far guilty of a 
 fraud, as ihat he could be estopped from setting up the facts upon 
 which he relies even as against Crooke himself. Indeed, from the 
 testimony of Thomas Constantine and John S. Chipman, it is ap- 
 parent that this must be so. And if this shall prove to be the contin-
 
 418 CASES IN CHANCERY. 
 
 3rd Circuit, ggncy referred to in the answer, it would constitute no defence ei- 
 payne. ^her in law or equity. He should have shown in what his equity 
 
 Aiterbur-ry. consists, for as a question of law he is estopped from denying his own 
 deed. A receiver will be appointed in behalf of a vendor as against 
 a vendee who has obtained possession and refuses to pay the purchase 
 money. 
 
 It is held in 15 Vescij, 344, that a vendee who has paid the pur- 
 chase money prematurely, has a lien as against the vendor analagous 
 to that of a vendor in the opposite case. The defendant as the case 
 is presented is holding over as against his own deed, and is not res- 
 ponsible for mesne profits or permissive waste. The amount of in- 
 cumbrances including the drafts paid by the complainant amounts 
 with interest and costs to about the sum of sixteen thousand dol- 
 lars ; this, from the testimony, must be the full value of the proper- 
 perty or more. It also appears that the property could and should 
 be made productive, and that it should yield sufficient to keep down 
 the accruing interest on the incumbrances. But instead of that, that 
 nothing whatever is paid on the outstanding mortgages, some of which 
 are in process of foreclosure, and which the complainant must extin- 
 guish in order to protect himself; that a property which should pro- 
 duce some $2,500 per annum, is actually not doing more than about 
 one-tenth of the business of which it is capable. 
 
 The evidence in regard to the danger of the property is contradic- 
 tory, but the iveight of evidence is that the mill is badly managed and 
 the dam in a hazardous condition. The facts show bad management, 
 a depreciation in the value ot the propert}-, and a total neglect of du- 
 ty or inability to perform it on the part of the defendant. The case 
 under all its circumstances is one pressing itself very strongly upon 
 the discretion of the court. There is a large amount of interest con- 
 stantly accruing on the outstanding incumbrances, all of which must 
 fall on the complainant. This valuable property which, under ordi- 
 nary management should produce sufficient to keep down the incum- 
 brances, is actually paying nothing upon them, but the interest is suf- 
 fered to accumulate, and the defendant is irresponsible. If this mo- 
 -tion is refused the complainant is subjected to almost irreparable, in- 
 evitalbe injury, for which he has do redress. No rule is better set- 
 tled than that the complainant is entitled to the rents and profits from
 
 CASES IN CHANCERY. 419 
 
 the time his title accrued. Lord Hardwicke in Dormer vs. Fur/cscue ^r.i circi.u. 
 3 Atk. R., 128, observes: "Nothing can be clearer both in law and i,.,j,„e 
 equity and frona Natural justice than tlmt the plaintiff is entitled to Aiterburry. 
 the rents and profits from the time his title accrued.'" Green vs 
 Biddle 8 Wheal., 1, The case is still stronger where there are large 
 outstanding incumbrances, and no part of the rents and profits are ap- 
 plied to keeping down the interest, and the defendant totally irres 
 ponsible. 
 
 The answer of the defendant is in, testimony has been taken ; — 
 from the answer and testimony it results that there is imminent dan- 
 ger that the complainant must lose the intermediate rents and profits 
 unless the motion be granted ; that the interest is permitted to accu- 
 mulate on this large amount of incumbrances, and that the property 
 is not made productive, and a portion ispurmitted to go to entirely to 
 waste, and the weight of evidence is that it is in danger of destruc- 
 tion. 
 
 Under this state of facts the court cannot be satisfied that its duty 
 is performed without theappointmet of a receiver. 
 
 Order accordingly.
 
 420 CASES IN CHANCERY. 
 
 |3r(i Circuit. HaWLEY VS. ShELDON, ET. AL. 
 
 ^^^^'''^^^ It is a general rule thai llie C'ourl of Chancery will not decree a specific performance when 
 Havvlev. , . , ■ . .., 
 
 vs. the remedy is not inulual or one party only is bound by the agreement. 
 
 The court having obtained possession of the case will retain it for the purpose of adjusting the 
 accounts between the parties, though the relief sought ( a specific performance ) cannot be 
 granted. 
 
 The bill in this case was for the specific performance of a contract, 
 and for the settlement of an account between the parties ; and the 
 prayer was that the balance found due might be applied on the con- 
 tract. The facts, as appears by the bill, answers and proofs, are thai 
 the defendant Sheldon, in May, 1834, proposed to the complainant to 
 remove trom Dearbornville, Wayne county, Michigan, to Kalamazoo, 
 to keep the public house, and as an inducement, offered to sell one- 
 half of the public house or tavern and lands attached to it with the 
 appurtenances to the complainant for $4,000, or the whole at the 
 same rate. This was in 1835. The proposition was in writing, but 
 no answer e.xcept a verbal one seems to have been given, though the 
 complainant intended to have accepted and taken one-half of the 
 premises, and did remove to Kalamazoo, and entered into possession 
 of the whole premises. Considerable improvements had been made 
 to the tavern-house and out buildings by the complainant, and no rent 
 had been demanded or paid, though he had been in possession some 
 four years. The defendants were indebted to complainant in a large 
 sum on account of board, &c., which he insisted was to apply to- 
 wards the purchase price of the property ; and they insisted was to be 
 cancelled by the rent due from complainant. It does not appear that 
 Burdick and Lyon ever authorized Sheldon to make the proposition 
 to sell, or even knew of it until about the time the bill was filed. — 
 There is no memorandum in writing except the proposition to sell 
 from Sheldon, and he denies positively that it was accepted by the 
 complainant. The bill was filed in April, 1839, and it appeared the 
 defendants or Sheldon had sold his interest to other persons prior to 
 that time. 
 
 A. Pratt &: D. B. Webster, for complainant. 
 C. E. Stuart & H. Mower, for defendants.
 
 CASES IN CHANCERY. .121 
 
 The Chancellor. — The defendants in their answers severally and 3'''' <^'^«-ui' 
 positively deny the existence of any agreement to sell the premises in 
 question, and two of them deny all knowledge of any such pretence 
 until a short period before the filing of this bill. 
 
 There is in proof a proposition made by the defendant, Sheldon, 
 in the alternative to sell either the whole or the half of the premises. 
 There is no sufficient proof that this proposition was accepted and a 
 mutual contract based upon it obligatory upon all the parties. 
 
 It id a general rule that a court of equity will not decree a specific 
 performance where the remedy is not mutual, or one party only is 
 bound by the agreement. Parkhust vs. Van Cortlant, 1 J. C. R. 
 281. It is not proved that Sheldon had authority to make the prop- 
 osition from the other parties in interest who deny all knowledge of 
 any such claim until a very recent period and many years after the 
 proposition had been made. To test the right of complainant to the 
 relief he seeks it is but necessary to ask the question, if from the show- 
 ing in the case it would have been in the power of the defendants or 
 any of them if the property had decreased in value, to have coerced 
 the complainant to make the purchase. But the defendant under this 
 indefinite proposition has made valuable improvements upon the pro- 
 perty with the knowledge and assent of the defendants, under an ar- 
 rangement as they say, that the expense of the improvements should 
 be allowed for in payment of rent. However this may have been, 
 the complainant is entitled to pay for those improvements whether they 
 were made relying upon the imperfect arrangement with Sheldon or 
 under the understanding as stated by the defendants. From the chan- 
 ges in the title to the property and the singularly indefinite manner 
 in which this business has been transacted, the remedy of the com- 
 plainant at law would perhaps be difficult and less plain and adequate 
 than in this court. 
 
 Under the circumstances of the case 1 deem it the duty of the court 
 to retain the case and direct a reference to ascertain the cost of the 
 improvements and also to state an account between the complainant 
 and Burdick and Sheldon, the present owners of the property, allow- 
 ing in stating the account a fair and reasonable rent for the premis- 
 es during the period they were occupied by the complainant. This
 
 422 CASES IN CHANCERY. 
 
 ardCircoii. was done in the case in 1 J. C. R., 273, before referred to, a case 
 Hawiey. ^^O' analagous to the present in all its important features. 
 Sheldon. Decree accordingly.
 
 CASES IN CHANCERY. vrs 
 
 . William E. Sill, 1-6-. SiDNEV Ketchlm. First cirtuu 
 
 Where uiiiorigiigc had hceri as^^ij,'!)!.'!! lo ?S. in trll^il lor several iiidiviiluals, it was held not ne- 
 cessary lo iiKike the ccstuis que trust, parties lt> u bill filed to foreclose it. 
 
 Cestuisifue trust are iiol necessary parlies, when llio only utijeci of the suit is lo reduce the 
 property Into possession. 
 
 The bill of com[)lairit was filed hy William E. Sill, trustee for Jon- 
 athan I) wight,' Henry Dwiglit, Ediimnd Dwight, John Ward, and 
 Benjamin Day, for the foreclo.sii re of a mortgage made by the 
 defendant to E. P. llasting:^, President of the Bank of Michigan, in 
 trust for said bank for the .sum of i$12,000. The bill states that E. P. 
 H., President and trustee as aforesaid, and mortgagee did by his deed 
 of assignment duly executed, acknowledged, and delivered, under the 
 authority, and by direction of the Dank of !\Iichigan, sell, assign, 
 transfer and set over said Ijoud and mortgage, to the complainant. 
 The date or time of the assignment is not given. In all other re- 
 spects the bill is in the usual form and is signed by the complainant 
 by his solicitors. The bill was not signed by counsel. 
 
 To the bill a demurrer was filed by the defendant and the follow- 
 ing causes assigned : 
 
 1. The cesluis que trust Jonathan Dwight and others, are neces- 
 sary parties. 
 
 2. The bill of complaint is not signed by counsel, 
 o. The bill is bad for uncertainty, as it does not show the innc 
 
 ol liie assignment of the bond and mortgage to the complainant. 
 
 Joy Osi Portek. for complainant. 
 T. RoMEvx, for defendant. 
 
 The Chancellou. — The complainant files his bill in this case a*, 
 trustee for live cestuis que trust. The object of the bill is to fore- 
 close a mortgage given as collateral security for a debt. 
 
 The principal question is, whether it is necessary in a case of this 
 kind, to make the ccstuis que trust parties to this suit. 
 
 There is a good deal of confusion in the authorities upon this sub- 
 
 Vol. I. 54
 
 424 CASES IN CHANCERY. 
 
 First Circuit. jgj,{_ Without going through the numerous and somewhat contradic- 
 
 jjj,, tory cases cited, I will refer to the remarks of Mr. Calvert in his 
 
 Kctchiim. treatise on parties, who has, I think stated the result to be deduced 
 
 from all the cases very correctly. He sdLys.page 210, " It will be ob- 
 
 " served that Lord Eldon says in 7nost cases respecting trust property 
 
 " the cestuis que trust should be made parties. This expression natu- 
 
 " rally suggests an enquiry, in what cases they are not to be made 
 
 " parties : In the cases just quoted the existence or enjoyment of the 
 
 "property is affected by the prayer of the bill. But there are ca- 
 
 ♦' ses in which the existence of the property is not affected^ and the on- 
 
 " ly object is to transfer it into the hands of the trustees : these two 
 
 " classes must not be confounded together. In cases of the former 
 
 " class the interest of the cestuis que trust is immediately affected by 
 
 " the proceedings : Not so in cases of the latter class, for they will 
 
 " not lose their lien upon the property whether the trustee does or does 
 
 " not reduce it into possession. The duty of the trustee is to reduce 
 
 "it into possession, that he may hare the complete execution of the 
 
 " trust within his own power, a duty which he must perform and in 
 
 •' which the cestui que trust, although he may compel his trustee to 
 
 ♦' undertake it, ought not to bear any part : It seems that where the 
 
 *■'- prayer of the hill is confined to this object, the cestui que trust ought 
 
 " not to be made a party. " 
 
 What is meant by the language here used? The reason given 
 
 for the rule that the cestuis que trust should be made parties, is, that 
 the court may be enabled to do complete justice by deciding upon and 
 settling all the rights of all persons interested and preventing further 
 litigation. 
 
 Where the object of the bill is to settle an account of trust prop- 
 erty it is undoubtedly necessary that all the cestuis que trust or in oth- 
 er words all persons interested in the event of the suit, should be be- 
 fore the court. This was the case in Hosmer vs. Stevens, 1 Ver., 
 110, which has been referred to in several of the subsequent cases. 
 
 What is the object of the present bill ? It is merely to get in the 
 money due upon the mortgage in part execution of the trust. The 
 rights of the cestuis que trust are not brought in question in this pro- 
 ceeding. There are no rights of these persons put in issue. The 
 trustee assignee of this mortgage takes no more than is actually due
 
 CASES IN CHANCERY. 425 
 
 upon it Under the case made by the bill he does take all that is due. F'irsi circuit. 
 This litigation cannot be aided o.'' varied so far as I can perceive by j. ., 
 making the cestuis que trust parties. The decision would be the same Kctdmi 
 upon the validity or the amount due upon the mortgage in either case. 
 The right of the persons for whom this trustee acts cannot be atlec- 
 ted by the collection of this money ; their right to the proceeds in 
 the hands of the trustee remains. From all reasoning in the cases 
 cited, I am satisfied this comes within the reason of the exception 
 to the rule, although no parallel case has been found; and unless Uie 
 court is restrained by the authority of adjudged cases, every consid- 
 eration of reason and convenience is in favor of this practice. In- 
 deed this seems to me but the duty of the trustee as the first step in 
 the execution of his trust. If any question as to the right of any or 
 all of the cestuis que trust to the proceeds should arise, then of course 
 they must all be made parties. 
 
 As to the allegation of the assignment it shows a sufficient title to 
 enable the complainant to sue, and is sufficient upon demurrer. The 
 other cause of demurrer, that the bill is not signed by counsel, is 
 technically correct, but as it is a mere slip the bill may be amended 
 in this particular without costs to either party. 
 
 Demurrer overruled.
 
 426 r.ASES TN CHANCERY. 
 
 Firsttircuii. AjrBROSE G. Smith VS. The Saoinaw City Bank. 
 
 SmUli. Tlie gpuoral rule is, Uiat wlion tlif answer sliows a defence anil llierc is an excuse shown for 
 
 iginaw ( 'i 
 i'liv Bank. 
 
 'iai'inaw CI- *'*^ 'lelay, l''e courl will allow tlie answer lo lie tiled on terms. 
 
 Tlie iiiclinalioii of the conn is always lo permit an answer to he filed if it discloses a defence, 
 unless lliere lias been intentional delay - 
 
 This was an application to set aside a decree pro confesso, and 
 lof leave to file an answer. It was based upon affidavits excusing the 
 delay, and the answer proposed to be filed if the decree was set aside. 
 
 A. D. Frazer, in support of the motion. 
 
 The Chancellor. — The general rule is. that where the answer 
 shows a defence, and there is some excuse shown for the delay, the 
 court will permit the answer to be filed on terms. If the answer 
 discloses a defence, the inclination of the court has always been to 
 permit it to be filed, unless the court shall believe that there has been 
 a delay intended to retard the proceedings in the cause. I do not be- 
 lieve that such has been the case here. 
 
 Some attention is due to the character of the liability. Persons 
 have been drawn into these institutions without any knowledge ol 
 the extent of their liability. This cannot shield them whenever 
 their liabilities are fixed, but it may properly be considered, upon an 
 application to be permitted to make whatever defence they may 
 have. 
 
 The court cannot now undertake to define or to foresee the extent, 
 or the limit of tlie liability of tlie stockholders in these institutions 
 where so many may prove insolvent. It is im|)0ssible to tell where 
 or to what extent the blow may fall. 
 
 In view of this and of the uniform practice of this court, I do 
 not feel myself at liberty to refuse this application or to impose upon 
 the counsel the obligation to stipulate as to the rights of their client, 
 as asked for by the complainants. 
 
 The terms should be to pay the costs of the default and all subse- 
 quent costs as a conditon, and also to receive a replication, and rule 
 for taking proofs upon filing the answer, if the complainant shall so 
 
 elect. 
 
 Order accordingly.
 
 CASES IN CITANCERV. 427 
 
 Samuel Street vs. Lean'der S. Dow & William S. P.ort. SrdCircuii.. 
 
 • "ourts of Kquity recognize anil pioiect the rights of assig^neea and enforc'c llic perforiiianrc of Sircoi. 
 
 contructs in their favor. ,, Y'v. 
 
 I)ow& Bor( 
 
 II is a general rule thai a contract cannot rest partly in '.vriiing and parlly in parol. Wlion a 
 contract is reduci-d to writing all previons parol rontracls rclali.ig lo tlic sanie iiialter are mer- 
 ged in llic wrillcii conlracl. 
 
 A parly seeking to set aside a conveyance on the gronnd of fraud must be prompt in commu- 
 nicating it, and consistent in his notice as to the use he intends to make of ii. 
 
 Bill for specific performance of a contract. 
 
 The facts, as apj)ears by bill and answer, were, that Leander S. 
 Dow and William Bort gave their IjoiuI to one Georgo Harlan in the 
 sum of $3,000, conditioned for the conveyance to Ilarlan or his as- 
 signs, within twenty-four hours after demand, of the S. E. quarter of 
 sec. 6, town 8 S. range 17 west, in the State of Michigan, at any 
 time within one year from date, provided Harlan or his assigns should 
 previously pay the sum of '"SJ^OO in such money as would be received at 
 the Land Office for the land in question, Dow holding the posse.^ision of 
 the premises under the preemption laws. Harlan assigned the bond to 
 the complainant. The defendant Dow left the State so the money 
 could not be paid or tendered him. The complainant offered it lo 
 Bort who refused it and finally paid it into the Land Office and ob- 
 tained a Land Office receipt for the same in payment for the land, 
 as described in the bond. Notice was gi\ en of the payment of the 
 money by complainant to Bort, and a deed demanded before the ex- 
 piration of the time limited in the bond. At the time the defendants 
 executed the bond Harlan gave four notes of ^.50 each to defendants, 
 which were to be endorsed by the complainant, and they were recei- 
 ved conditionally, and Harlan was to procure the endorsement ; tho' 
 no mention of this was made in the bond. This was never done ex- 
 cept as to one of tlio notes. The others were retained by the defen- 
 dants and put in circulation ; no offer to return them to Harlan, or 
 Street, ever having been made by the defendants. 
 
 Green & Dana for complainant. 
 
 J. S. Chipman for defendants.
 
 428 CASES IN CHANCERY. 
 
 3ni circHii. 'f ^E CHANCELLOR. — The Complainant must bo regarded as standing 
 <ireci '^^ ^'^® same situation as the original obligee of the bond would have oc- 
 Dow. cupied if the bond had not been assigned. Courts of Chancery rec- 
 ognize and protect the rights of assignees. The condition of the bond 
 is plain and clear. On the one side the obligee of the bond, Harlan 
 was to furnish to the said Dow two hundred dollars in money receiv- 
 able at the Land Office, and Dow was at anytime when required, up- 
 on a notice of twenty-four hours, to convey the lands mentioned in 
 the bond by a good and sufficient deed. Dow being absent from the 
 state under circumstances which led the complainant to apprehend that 
 he intended to evade the fulfilment of the conditions of the bond the 
 complainant actually paid and applied the two hundred dollars to the 
 purpose particularly designated in the bond to which it was to be ap- 
 plied. This seems to me a substantial compliance with the condition 
 of the bond. 
 
 The money has been applied according to the conditions of the bond 
 itself; so far therefore as this question rests upon the bond, the con- 
 dition has been performed on the part of the obligee, and he is enti- 
 tled to the land in question. 
 
 It is a general rule, that a contract cannot rest partly in writing 
 
 and partly in parol, but where a contract is reduced to writing, all 
 previous parol contracts relating to the same matter are merged in 
 the written contract. 
 
 It is attempted to be shown in this case that the defendant, Dow, 
 was induced to deliver this bond upon a promise that the four notes 
 executed by Harlan should be endorsed by Street, which was 
 not done except as to one. If the defendant had at the time and be- 
 fore he had put the notes in circulation, insisted at once upon retur- 
 ning the notes and receding from the contract upon this promise unless 
 they were endorsed he would have been authorized to have done so. 
 
 But having actually used and put these notes in circulation and per- 
 mitting the bond to stand, Jie must be considered as having waived 
 this right. He cannot affirm and satisfy the contract by using the 
 notes received, and at the same time disaffirm it. He must adopt one 
 course or the other. 
 
 A party seeking to set aside a conveyance on the ground of fraud
 
 CASES IN CHANCERY. 429 
 
 must be prompt in communicating it and consistent in his notice ^s^_J|!l^ 
 to the use ho intends to make of it. 'i Pet. R. 215. sircei. 
 
 vs. 
 
 There must be a decree for a conveyance according to the condi- '^""■• 
 lions of the bond. 
 Decree accordingly.
 
 430 CASES IN CHANCERY. 
 
 First Circuit. Thayer VS. JasoxN SwiFT, and Others. 
 
 Tlmyer. TJiis court will not entertain a judgineiU creditor's bill until the judgment creditor has fully 
 -,'^% exhausted liis retncdy at law. Itis this fact that gives the court jurisdiction hi this class of ca- 
 
 ses ; and it has been repeatedly held that the court will not sustain a bill as a judgment cre- 
 ditor's bill merely filed before the return day of e.xecution, and it is not sufficient that tlie exe- 
 cution shall have Been actually returned before the return day. 
 
 (;ourts of chancery have hcUl in every adjudged case's that the judgment creditor must 
 show a strict and rigid eoiniiliance with Uie ruleslandfornisof law,beforeit will administer the 
 Jiarsh remedy of depriving the debtor absolutely of all control ovej every pan and portion 
 of his property. 
 
 Where a lien has been acquired by the levy of an execution, or wlieie there is an out-stand- 
 ing execution in tlie hands of an officer, and a fraudulent obstruction has been interposed to 
 prevent its being levied, there can be no doubt that a bill may be filed in this court for a dis- 
 covery and to remove such obstruction. 
 
 Tlie ground, and only ground upon which injunctions arc granted against third persons 
 in possession of personal property and ostensibly its rightful owners, upon an exparte appli- 
 cation, is for the protection of the fund or iiroperty when sliown to be in danger without this 
 interposition. 
 
 It makes no difference whether goods arc converted into money or not, trustees are equal- 
 ly responsible to creditors whose rights to the goods or their proceeds are eslablislied , and if 
 the proceeds be paid away by the trustees pendente lite, they are held responsible ; and 
 where there is no allegation that the trustees are insolvent, transient or irresponsible, or that 
 ibe fund is in a hazardous condition, an injunction will not be granted or sustained. 
 
 The complainants obtainet^ a judgment against the defendant Swilt 
 in the Circuit Court for the county of Washtenaw, on the 13th De- 
 cember, 1839, for $680,44 damages, and $43,72, costs of suit. On 
 the 31st of December, 1839 a jifa was issued, directed to the Sheriti" 
 of Washtenaw county, where Swift resides, against the goods and 
 chattels, lands and tenements of Swift, and delivered to J. K. Wal 
 lace, Deputy Sheriff, on the first day of January, 1840. The execu- 
 tion was returnable on the first Tuesday of May, 1840. On the 
 20th April 1840, the Sheriff by his deputy returned on said writ, 
 *' that there was no goods, and chattels, lands, and tenements to be 
 found in his bailiwick to secure or pay the sum due the complainant 
 or any part thereof, to his knowledge, after diligent search. " 
 The judgment remains in full force, and wholly unsatisfied. 
 
 The bill states that the defendant Swift has a considerable amount 
 of property, real and personal, which he keeps concealed, and par-
 
 CASES IN CHANCERY. 431 
 
 ticularly that he deeded to the defendant j^anister, a lot in the vil- -"•' ^-''fcuit. 
 
 lage of Dexter, without consideration, for the purpose of keeping 'j|,.,jcr. 
 
 the same out of the way of his creditors. That since making the swm. 
 
 deed. Swift has remained in possession, and has erected thereon a 
 
 brick house and paid for the same out of his own means, though the 
 
 whole business has been carried on in the name of Banister. The 
 
 improvements are supposed to be worth from $1500 to $2000. The 
 
 bill alleges certain other property has been j)urchased by Swift in 
 
 the name of Banister, for the purpose of defrauding his creditors. — 
 
 The complainants charge that all the property described, as in the 
 
 name of Banister, is held in trust by him for Swift, and that he has 
 
 also a large amount of notes, accounts, &c. belonging to Swift, which 
 
 he is collecting for Swifts benefit. The prayer is in the usual form 
 
 of a judgment creditors bill. 
 
 Motion for Receiver by complainants. 
 
 Motion for dissolution of injunction by defendants. 
 
 Miles & Willson, for defendants. 
 
 The Chancellor. — The various questions presented under this 
 motion involve principles of the most important and complicated cha- 
 racter. 
 
 The consequences flowing from their decision either tiie one way 
 or the other, are of great importance. It is to be regretted that this 
 question is presented under circumstances which preclude that care- 
 ful examination of authorities, and that deliberate reflection which 
 the subject demands. 
 
 Under these circumstances, 1 shall confine myself tothe considera- 
 tion of such portions of this case, as may be required by the present 
 exigency. 
 
 The first question presented is. can this bill he sustained as a judg- 
 ment creditors bill merely. The foundation of the jurisdiction ot 
 this court in this class of cases is, that the judgment creditor shall have 
 fully exhausted his remedy at law. It has been repeatedly held that 
 the court will not retain a bill as a judgment creditors bill merely, 
 filed before the return day of the execution. In the absence of any 
 authority or dicta upon the subject, I should have as little doubt 
 upon a case where the execution was actually returned before the re- 
 VoL. I. 55
 
 432 C^SES IN CHANCERY. 
 
 2n(i cireui;. turii day, although the bill was not filed until after the return day had 
 ^y^'^^''^ elapsed. Courts of Chancery have held the judgment creditor in ev 
 Swift ^''y ^^j^^'dged case, before administering this harsh remedy of depri- 
 ving the debtor absolutely of all control over every part and portion 
 of his property, to bring himself strictly and rigidly within this rule. 
 No case can be found where this remedy has been afforded without 
 a strict compliance with all the forms. What is the reason of the 
 rule 1 It is that a judgment debtor shall not be harrassed with a suit 
 in Chancery until the creditor has availed himself of all his common 
 law rights to collect his judgment. Theonly (ficia to be found which 
 has ever led to any doubt upon this subject is to be found in the 
 opinion of Chancellor Walworth in the case of Cassidyws. Meacham 
 3 Paige 212. This idea is thrown out under a perhaps, and rather 
 • as a speculation than as a decision. He says perhaps a return made 
 before the return day, may be good by relation. But if we once depart 
 from the well settled rule, that the creditor shall fairly and fully 
 first exhaust his remedy at law, where shall we stop ? 
 
 Will it answer that the execution may be issued, delivered to an of- 
 ficer, and immediately returned, and slumber in the files of the court 
 until after the return day has passed, and then become good by rela- 
 tion, notwithstanding the debtor may have been in possession of pro- 
 perty on which to levy the execution. There is no other safe course 
 to adopt in administering this severe remedy, but to adhere to the well 
 established principles which govern this class of cases; and I think 
 the rule is too well established to be overturned, by a speculative ex- 
 pression of this kind, which formed no part of the decision, and was 
 unnecessary in the case. The fact that a suit of this kind has never 
 been sustained as far as we can find, is not without its importance. 
 1 place some reliance on the manuscript case cited from New York. 
 I have very little doubt it is correctly reported, and entirely concur 
 in the reasoning. This is the first time I have been called upon to 
 decide this question. Its decision is now unavoidable, and as it is now 
 decided, must be the rule in future cases upon this subject. I enter- 
 tain no doubt as to what should be the rule. 
 
 The next question whether under the allegations contained in this 
 bill, the complainant can call upon the other defendants the alleged 
 
 trustees of the judgment debtor, is of a much more grave and impor- 
 tant character.
 
 CASES IN CHANCERY. 433 
 
 2n(l Circuit. 
 
 If a levy had been made, and an actual lien thus been acquired, 
 there could be no doubt. Timycr. 
 
 If there was an outstanding execution in the hands of the officer, swiii. 
 and the bill had been filed for a discovery and to remove fraudulent 
 obstructions interposed to prevent its being levied, there could, on gen- 
 eral principles exist but little difficulty. Here it is not avered tliat 
 there has been any attempt to levy this execution upon this property, 
 and there is no outstanding execution in aid of which the extraordi- 
 nary powers of this court are invoked. I am inclined to think how- 
 ever, and to hold for the purpose of this motion, that the com- 
 plainant, under the showing contained in his bill may sustain it for 
 the purpose of making this trust property available, if it really has 
 any existence, for the liquidation of his judgment. 
 
 It is however urged that the injunction granted in this case against 
 the assignees, is neither required nor justified by the allegations con- 
 tained in the bill. The ground and only ground, upon which injunc- 
 tions against third persons in possession of personal property and os- 
 tensibly its rightful owners upon an exparte application, are gran- 
 ted, is for the protection of the fund or the property, when it is shown 
 to be in danger without this interposition. 
 
 Here there is no allegation that these trustees are insolvent, trans- 
 ient, or irresponsible. It was held in the case of Haddoii vs. Sfader 
 20 John. R. 570, that it makes no difierence whether the goods 
 are converted into money or not ; the trustees arc equally responsi- 
 ble to the creditor if he establishes his right to the goods or their pro- 
 ceeds, and if paid away by the trustees jxendente lite, they are held 
 personally responsible. Under these circumstances, it should cer- 
 tainly be required in order to sustain an injunction which may ope- 
 rate with such extreme severity, that it should be shown, that the fund 
 is in a hazardous condition. Such has been the usual practice of the 
 court. But as certain real estate, the title to which is not vested in 
 these trustees, is alleged to belong to this judgment debtor ; and any 
 transfer or incumbrances upon that, may lead to the necessity of ma- 
 king new parties, the injunction in that respect may stand until the 
 coming in of the answer. It results then that the bill cannot be sus- 
 t ained as a judgment-creditors bill merely.
 
 434 CASES IN CHANCERY 
 
 2ml Cireuil. 
 
 ^^_^ That the general injunction against Swift must be dissolved. That 
 Tiiayer. ^^8 injunction against the other defendants be dissolved, except so far 
 
 wih. fis relates to the real estate alleged to be the property of the defen 
 
 dant Swift. 
 
 That the motion for the appointment of a Receiver as against 
 
 Swift, must be denied, and as the other defendants' in opposition to 
 
 the motion for a Receiver, deny absolutely having or holding any 
 
 property, rights, credits or effects, of Swift of any kind, a receiver 
 
 of the alleged trust property cannot be granted until they have an 
 
 opportunity of answering the bi'l.
 
 CASES IN CHANCERY. 435 
 
 Spencer Stafford, vs. T. J. IIclbert. Firsicircui 
 
 Wlierc an execution was returned liy ilie ofTicer more tlian a month before the return day yuitlord 
 
 and a judgment creditor's bill filed after the return dav, the injunction was dissolved. r*. 
 
 Hulberi. 
 
 A bill filed after the return day for want of equity in the bill. 
 
 This was a motion to dissolve injunction for want of equity in the 
 bill. 
 
 The facts will appear sufficiently in the opinion of the Court. 
 
 The Chancellor — This is a creditor's bill merely. It appears 
 from the bill that the e.xecution was returned by the sheriff more than 
 a mouth before the return day, but that the bill was not filed until af- 
 ter the return day had passed. 
 
 Several other questions were raised upon this motion, but since from 
 the views taken in the case of Thcnjer vs. Su-iff, and others, 
 decided in the second circuit, this must be decisive of the case; 
 it will not be necessary to notice them all. The practice of the court 
 and the reason of it, are set forth in that case at length, and I adhere 
 to the opinions therein expressed. 
 
 It may be proper to say since that case was decided, I have seen an 
 extract from the record in the case of i'crgM507i vs. Neicstead, el. ah, 
 referred to, from which it appears that the newspaper report is cor- 
 rect and that the case turned upon the question here presented, and 
 that the demurrer was allowed. 
 
 A question was raised as to the reception of the affidavit stating 
 that the return of the officer upon the execution was limited only to 
 goods and chattels, and that it does not appear but that the defendant 
 was possessed of lands and tenements out of which the money could 
 have been made. 
 
 From the view taken upon the first point it is not necessary to de- 
 cide this question. 
 
 Where the affidavit shows a distinct fact, and that the well settled 
 practice of the court has been departed from, I am induced to be- 
 lieve that the affidavit may be received. 
 
 JMotion granted.
 
 436 CASES IN CHANCERY. 
 
 Charles W. Whipple vs. Cullen Brown, et al. 
 
 irs ifL . ^^^^ f g(yf „ of j^ Master charged with the execution of an order of Court showing the failure of 
 
 a nerson to appear and submit to an examination, as required by the order is sufficient founda- 
 AVliipple 1 ri . ^ 
 
 vt. tion for a rule to show cause why an attachment should not issue for contempt. 
 
 Brown. 
 
 The return on tiie summons or the affidavit of service should show when and how it was served. 
 When a notice was to appear before V., a master, and the return was by D., a master, that the 
 defendant did not appear— Held to be irregular. 
 
 This was a rule for the defendant Brown to show cause why an 
 attachment should not issue for contempt in not obeying a master's 
 summons to appear at the master's office and submit to an examina- 
 tion as to the rights and credits of the defendants, under a creditor's 
 bill. The summons was issued on the twenty-second, served on the 
 twenty-third, at half past two o'clock, P. M., and required the de- 
 fendant to appear at the office of the master on the twenty-fourth, at 
 ten o'clock , A. M. The summons was to appear before Jeremiah 
 VanRensselaer, Esq., a master of this court, while the report of the 
 master is made by W. \V. Dalton, Esq., who had the execution of 
 the order, to examine the defendants and appoint a receiver. 
 
 A. Davidson, for the Complainant. 
 
 D. Stuart, for the Defendants. 
 
 The Chancellor. — The return of a master, charged with the exe- 
 cution of an order of this court is a sufficient foundation for a rule 
 to show cause, that rule havicg been taken exparte,it is competent now 
 for the respondent to show cause against granting the attachment. 
 
 The defendant swears positively that the notice to appear before 
 the master was served only some eighteen hours before the time he 
 was required to appear, and he specifies the time of service, and when 
 he was required to appear. The master in his return refers to the 
 affidavit of Mr. Holbrook, as to the mode of service. 
 
 On looking at this affidavit of service, it is perceived that he does 
 not specify when or how it was served, but that it was the usual time 
 pursuant to the seventy-second rule. It shows his conclusion ; the 
 facts should be stated in order to enable the court to judge.
 
 CASES IN CHANCERY. 437 
 
 It strikes mc that a copy of tlie notice should liave been returned First Circuit, 
 with the proof of service endorsed, Brown also swears that nooth- „., 
 
 r ' A\ lii|iplc. 
 
 or notice has been served upon him in the cause, except tlie summons j{r"vn. 
 of the master, for the purpose of appointing a receiver, whicli was 
 obeyed. 
 
 This proceeding I think has been irregular, and the court is bound 
 under this proceeding to notice it. 
 
 The notice and return under tiie rule to show cause, is also irregu- 
 lar. The notice to Brown under this rule is to appear before the 
 master, in four days, &c. The notice as returned, endorsed upon 
 the order is, that Jeremiah VanRenselaer jr., a master of this court, 
 had the execution of the order referred to. 
 
 The return upon the order is made by Mr. Dalton, that the respon- 
 dent did not appear before lam, pursuant to the order. The notice 
 did not require the respondent to appear before him, but before Mr. 
 Van Rensselaer, and non constat, but that he has appeared according 
 to notice. 
 
 While on the one hand there is no escape from tlie proceedings 
 under this class of bills, when the proceedings are regular, on the 
 other, such is the severity of its operation, it would be hazardous to 
 the rights of the parties defendant, if the courts were to relax the 
 strictness of the proceedings, and attach a party when in fact as ap- 
 pears here, the notice has been clearly irregular. 
 
 Motion denied.
 
 438 CASES IN CHANCERY. 
 
 Hammond et. al. vs. Place, et. al. 
 
 It is not a matter of course lo allow the filing of an ainendcd bill after replication and test! 
 niony. A special application should be made lo the Court; with a full statement of the facts 
 ^'^■s!' " " intended to be incorporated in the amended hill, so the Court can judge of their materiality. 
 
 Place. 
 
 Facts which have transpired subsequent to the tiling of the bill cannot be set forth by way of 
 
 amendment. 
 A rule entered by consent without fraud or misrepresentation will not be vacated. 
 
 To the answers, replications had been filed, and testimoy taken ; at 
 the last term of the court, the parties by their solicitors entered 
 by consent, a rule granting leave to the complainants to file an amen- 
 ded bill of complaint. A motion was now made to set aside and va- 
 cate the order or rule for leave to file an amended bill. 
 
 J. KiNGSLEY, in support of the motion. 
 
 O. Hawkins, contra. 
 
 The Chancellor. — The filing of an amended bill of complaint 
 at this stage of the cause is not a matter of course. Application 
 should be made to the court for that purpose, and a full statement of 
 the facts intended to be incorporated as amendments should be set 
 forth. Their materially must appear, for it would be absurd to think 
 that a cause would be delayed for the purpose of filing an amended 
 bill, that would not in the least, change the legal effect of the origin- 
 al statement. It is a well .settled rule also, that facts which have 
 transpired since the commencement of the suit, cannot be set 
 forth by way of amendment to the original bill. If the com- 
 plainants wish to take advantage of any such facts, they must do it 
 by a supplemental bill. An amended bill relates back to the time 
 when the original bill was filed, and it is considered but one bill, and 
 cannot be separated. 
 
 But in this case, the rule for leave to file an amended bill was en- 
 tered in open court by consent. The court will not interfere to set 
 aside a rule or order thus entered. It is a matter of great conven- 
 ience for solicitors to argree to rules, and if the court would vacate 
 them upon application of either party, without its appearing they
 
 CASES IN CHANCERY. ^^c) 
 
 were entered into under a mistake, or by fraudulent representations. F'fst circuit. 
 Such rules would tend to confusion ratlier tlian convenience, hi ^-^'^^"^^ 
 
 ^-, J-, Hammond. 
 
 2 Cox. K. 156 ; and 1 MouU. Pr. 36, it i.s laid down that consent „T'- 
 
 Place. 
 
 rules will not bo vacated. • 
 
 Motion denied. 
 
 Vol.1. 56
 
 440 CASES IN CHANCERY. 
 
 Fust Circuit, Catharine E. Schwarz, et. al., vs. Nathan Sears, et. al. 
 
 Scliwarz. O-n a motion to dissolve ;m iiijnnclioii Iicforc answer, the allegations in llie bill are lo be taken 
 
 „'"'• as true, 
 
 r-ears. 
 
 The cases where a dciiosile ot'inoney is dispensetl witli arc where there is an uiirerlainly as 
 
 to the amount wliicli is dne. 
 
 The bill in this case was filed for the purpose of setting aside n 
 foreclosure of mortgage under the statute and to redeem the same. 
 There was a dispute between the mortgagor and mortgagee as to the 
 real amount due upon the mortgage. An injunction was granted on 
 the filing of the bill to resti*ain the defendants from perfecting their 
 proceedings under the statute foreclosure, and from procuring a deed 
 from the Sheriff. The case now came before the court on a motion 
 to dissolve the injunction before answer. 
 
 A. W. BuEL, in support of the motion, contended that the injunc- 
 tion should be dissolved. 
 
 First — Because there is no equity in the bill. 
 Second — If there be equity in the bill, tlie balance due upon the 
 mortgage should have been brought into court. 
 
 A creditor is not allowed to make it a condition of a loan that he 
 shall receive a compensation for hi§ services in procuring the money, 
 and if the amount of such compensation is included in the security 
 given for the loan the court will on the debtors paying into court the 
 amount reported to be due by a master after deducting the sum char- 
 ged for such services, grant an injunction to stay all proceedings on 
 the mortgage. Hine vs. Handy, 1 J. C. R. 6. 
 
 Hy the complainants' bill the court is in possession of the whole 
 case, and having the power to do equity as well to the defendants as 
 lo the complainants, will exercise that power, and for such purpose 
 will refer the case to a master to ascertain the amount due, and will 
 order a sale of the premises upon such terms as are just and equita 
 ble. 
 
 A party seeking equity must do equity ; when a party comes in 
 to a court of equity for relief ho will be compelled to do equity to 
 others. 2 Com. R. 139.
 
 CASES IN CHANCERY. HI 
 
 Where a party seeks equitable relief against usury, he must tirst i"'"'*^"^"'*- 
 bring into court the money actually loaned with legal interest. 1 J. C ^^^^,._,,,,_ 
 R. 350, 1 T. R. 153, 1 Paige Ch. R. 429. Seu^. 
 
 This case comes within the spirit orthc^ statute ami iur tiiul ruasou 
 we contend tiie money should have been brought into court. As 
 to the meaning of the term "proceedings at law," see 1 Hojf. Ch. Fr. 
 88, 89 ; also note to page 89, referring to the Ms. case of Nev- 
 lon vs. Douglass, where it was held tliat chancery proceedings come 
 within ihc spirit of the phrase "proceedings at law,*' and proceed- 
 ings in chancery would not bo restrained without bringing the money 
 into court. 
 
 A. D. Phaser, contra. 
 
 Under the motion to dissolve the injunction in lliis case two posi- 
 tions are assumed by the defendants; Firs/, tiiat there is no equity 
 in the bill ; and Second, that if there is, the complainant should have 
 brought the balance due into court. 
 
 The complainants insist upon tlic negative of both these positions ; 
 for: 
 
 First — The bill sets out various grounds for llie equitable interpo- 
 sition of the court. 
 
 Secondly — This case does not fall within the rule applicable to 
 that class of cases in which the money is required to be brought into 
 court. That rule appears to have reference to personal actions at 
 law in which judgment has been obtained, or an award, and in cer- 
 tain cases where the defendant's answer shows a certain sum to be 
 due. The rule is discretionary in some of those cases, but the prin- 
 ciple is wholly inapplicable to this case. Eden. 82, 83 ; 2 Ves. i^- 
 Beamcs 74 ; 1 Paige R. 426 ; 4 Wash. R. 178. 
 
 The Chancellor : — This is a motion to dissolve an injunction ; 
 
 First, for want of equity in the bill. 
 
 Second, for that llie complainants have not brought into court thr 
 amount due. 
 
 There is suilicient slated in tht^ bill to uarram the interference of 
 the court, and as the case now stands to require that this court should 
 afford the complainants the protection they ask. The defendants not 
 having answered the allegations of the bill it must be taken to be 
 true, for the purpases of this motion.
 
 442 CASES IN CHANCERY. 
 
 First Circuit. But it is further urged that the complainants should be required to 
 bring the amount actually due into court. The court in its discre- 
 tion may require as a condition of granting the continuance of 
 an injunction that the complainants bring the amount apparently due 
 into court. It is a general rule that when a party comes into a court 
 of equity for relief he must do equity. 
 
 The cases where the deposite of money is dispensed with when re- 
 lief of this kind is sought for in this court, are, where there is uncer- 
 tainty as to the amount due, or doubt whether in the progress of the 
 cause it may not turn out that no part of the claim should be paid ; 
 such is not the case here. 
 
 It is admitted by the bill that there is a balance due upon the mort- 
 gage which they profess their readiness to pay, and which can be as 
 well ascertained now by reference to a master to compute the amount 
 due after deducting the several payments as at any other stage of the 
 cause. 
 
 If the defendants choose to submit to the case as made by the bill, 
 I can see no reason why they should be subjected to the expense of 
 answering. 
 
 The complainants, by the course pursue|| by the defendants, were 
 compelled to come into this court to obtain relief, and as the case now 
 stands I see no reason why they are not entitled to the relief they ask. 
 The complainants proffer their readiness to pay the amount actually 
 due and as preliminary to granting them the relief they ask, they 
 should be required to do so. 
 
 Let it be referred to a master to compute the amount remaining 
 due after deducting all payments which have been made ; and it is 
 ordered that the complainants within sixty days after such report be- 
 comes absolute, shall deposite in this court subject to the order of this 
 court, the amount remaining due, with interest from the date of the 
 report ; and upon compliance with said order, the injunction to stand 
 until further order.
 
 CASES IN CHANCERY. 443 
 
 Elijah F. Cook, Samukl Power, Alfrkd J(;dso\,William Phelps, ^^^^^1^1^ 
 Warren Mkssenger, David Paddock, Isaac Paddock, and El- ^^^^^ 
 
 KANAH B. COMSTOCK, VS. RUSSEL M. WhEELER: vi. 
 
 \Vlicclcr. 
 
 liy tlie general banking law, llic directors and stocklioMcrs of hanking iiistiiulions associated 
 
 under il, are niadeliable for all deficits in consequence of insolvency. 
 
 If charged as fraudulent co-partucrs, Uiey are equally liable forllic entire amount oftlic in- 
 
 debiedness of the concern. 
 
 Where the object of the bill is merely to collect money, or re luce it to possession, it is not ne- 
 cessary for an assignee either of a bond, note, or chose in action to make the cestuis que Iru/t 
 parties, although the rule is otherwise where the existence or enjoyment of trust properly is 
 to be affected by the prayer of the bill. 
 
 This was a hearing on demurrer. 
 
 The bill was for a discovery, and stated that some time in the month 
 of January, 1841, the defendant filed his bill in this court against com- 
 plainants and others, as being or having been directors and stockhol- 
 ders of an institution established under the general banking law, and 
 called the Clinton Canal Bank, charging them with a fraudulent 
 combination to injure the creditors of said corporation or association, 
 setting forth various particulars which he alleged to constitute such 
 fraud, and seeking satisfaction from them individually, as being a cre- 
 ditor of said bank by reason of holding its notes to the amount of 
 §2,594, and also two certificates or receipts given by Seth Beach, as 
 Receiver of said bank, to R. D. Hill for notes of the bank received 
 by said bank of said Hill, amounting to 81,002, which were transfer- 
 red to said Wheeler by said Hill. That an injunction was issued ac- 
 cording to the pra)''er of said bill against the several defendants there- 
 in named ; that the complainants in this suit appeared in said cause 
 and filed their demurrer to the bill of complaint therein, that said de- 
 murrer is overruled, and they were required to answer said bill in 
 twenty days after service of the order granted for that purpose, which 
 service was made on or about the 23d day of April, 1H41. That 
 Wheeler in his bill omitted to state how, or at what time he became 
 possessed of the notes and certificates therein mentioned, or the con- 
 sideration, if any, paid for the same. Charges that defendant did not 
 obtain possession of them until long after the bank stopped payment,
 
 444 CASES IN CHANCERY. 
 
 First Circuit. a,^j {^3^ jf ],£ j^, ^[jg jjonufule owiiei', he obtained them for much less 
 Cook *'^^" t'lfii' ^^^^j ^"^^ *'^^^ if said receipts have been transferred to him 
 Wheeler, it was in triist for said Hill or some other person ; and if any consi- 
 deration was paid, it was msrely colorable. That said bills were 
 bought up l)y said Wheeler, or said Hill, or some other person, on 
 speculation after the bank had stopped doin^ business, and that if any 
 thing is realized by said Wheeler under his said bill, it is to be sha- 
 red between himself and some other persons according to some stip- 
 ulations entered into when the notes and receipts were obtained by 
 him. Prays a discovery from Wheeler to enable the complainants to 
 make their defence to his bill. 
 
 The defendant demurred specially. 
 
 E. C. Seaman, in support of the demurrer. 
 
 1. The complainants have not made such a case as entitles them 
 in a court of equity to a discovery, and that the discovery sought 
 would be immaterial, and could not avail complainants for the pur- 
 pose they intend to use it for. 
 
 2. So much of their bill as relates to the consideration paid by de- 
 fendant, and any agreement relating to the bills and receipts where- 
 by Hill was to retain any share of the proceeds, can be sustained on- 
 ly on the ground of champerty and maintenance, which would subject 
 defendant to a forfeiture which complainants have not waived. 
 
 3. The matters sought to be discovered relate exclusively to defen- 
 dants title, and cannot affect complainant's liability ; and the inter- 
 rogatories founded thereon are indefinite, hypothetical and imperti- 
 nent, and a mere fishing proceeding, enquiring through idle cui'iosi- 
 ty into what does not concern the complainants or either of them. 
 
 T. RojiEYN, contra. 
 
 I. In support of the cross bill the complainants therein contend that 
 they have a right to the discovery of the title of the defendant to the 
 demand in dispute. 
 
 If the defendant be not in fact the equitable and beneficial owner 
 of these demands, his original bill must fail for want of parties — this 
 court requiring in all cases the parties interested in the object of the 
 suit to be before it.
 
 CASES IN CHANCERY. 44." 
 
 This rule is especially rigid so fnv as the riglils of a complainant Firsi circuii. 
 are concerned ; the court compelling the true parly to be before it 
 even where there has been an assignniont subsequent to the com- 
 mencement of Ihcsuit. Mills vs. Iloag, 7 Paige R. 21 ; Scdgwich 
 vs. Cleaveland, 7 Paige R. 289. On these general principles wo 
 rontenil that the enquiry as to the title of the defendant is material 
 and proper. 
 
 We furthci- claim that this is the case under the Statute, upon 
 which the original bill is founded. 
 
 The Statute of 1839 [j). 94) is the only source of jurisdiction and 
 guide to procedure in this case ; the remedy at law being complete 
 and the original bill (even if this court had jurisdiction independent 
 of the statute) being multifarious and otherwise bad. 
 
 The statute in question gives the remedy to the creditor of the cor- 
 poration. See Laii'S of 18S7, p. 30G-7 ; Laws of 1839, p. 102. 
 
 Hence the propriety of the enquiry as to the title of the complain- 
 ant in the original bill. 
 This enr^uiry is material. 
 
 1st. Under the Statute — because it declares that none but a cred- 
 itor shall sue. 
 
 2d. There may be equities between other actual creditors, antl 
 the defendants which will be defeated by allowing a trustee to sue. 
 
 The propriety of making the bona fide creditor the complainant is 
 farther evident from the next subject of enquiry in the cross bill — 
 which is as to the consideration paid by the complainants in the orig- 
 inal bill for the claims against the defendant. 
 
 II. The complainants in thecross bill further contend that they have 
 a i-ight to the discovery of the amount paid by the defendant for the 
 demands on which he seeks to recover in his original bill of com- 
 plaint. 
 
 The proposition is that the complainant in the original bill can be 
 treated in this court as a crodilor only to the amount which he actu- 
 ally paid for the demands which he seeks by tliat bill to enforce, 
 
 I assume that the original bill must be considered as filed for the 
 benefit of all the creditors of the bank, and that the monies received 
 under the decree must be considered as a common fund for the bene- 
 fit of all the creditors.
 
 44G CASES IN CHANCERY. 
 
 Firsicirruii. Reference is made to the Statute of 1839 and to the argument of 
 the defendant's counsel in the case of Piquette vs. Risdon, et. al., di- 
 rectors of the Bank of Saline. 
 
 By referring to section 17 of the act of 1839, (p. 98J we 
 find that the receivers are made subject to all the obligations imposed 
 by law on trustees of insolvent debtors. 
 
 In R. S., J). G08, sec. 1, we have a definition of this term, and 
 in the same volume, p. 603, Sec. 8, we find a positive enactment that 
 a petitioning creditor who shall have purchased or procured to be as- 
 signed to him a claim against the insolvent for less than its nominal 
 amount shall be deemed a creditor to the amount only actually paid 
 by him. 
 
 These enactments bind the receiver and this court. 
 
 And such would be the rule on general equitable principles, inde- 
 pendent of these statutes. 
 
 Equity administers legal assets on equitable principles. 3 Paige, 
 
 R. 167. 
 
 EquaUty is equity, ih ; also 1 Paige R., 25^). 
 
 Receivers are bound to inquire into the equitable chamcter of the 
 debts piesented to them. 4 Paige R., 224. 
 
 These general principles will be found recognized and applied by 
 Chancellor Walworth. 7 Paige R. 615, See also Edwards on Re- 
 ceivers, 233. 
 
 Under these circumstances it is submitted that the enquiry as to the 
 amount paid by the defendant for the claims which he seeks to en- 
 force is pertinent and material. He seeks to recover of the defen- 
 dant as connected with the bank, in case the bank was legally in ex- 
 istence. 
 
 Is the defendant protected from the disclosure? 
 
 A number of authorities are cited by the defendant to show that he 
 is not obliged to discover his own title. 
 
 These authorities have all reference to real estate, and they all 
 rest on the principle that a party must recover on the strength of his 
 own title, and is not entitled to any discovery of the defects of his ad- 
 versary's title when such disco\^ery does not tend to establish ajirm- 
 ativeJy the piainti_[ps case. 
 
 Is this our case? Is not the discovery we seek in affirmance of our 
 own defence, just as much as a discovery of payment or satisfaction?
 
 CASES IN CHANCERY. 447 
 
 Concede the principle that the complainant in the original bill is to be ^'"'"' <-'"■<="'• 
 deemed a creditor, so far only as he has paid value lor his demands, j.^,^ 
 and you concede tiiis point. For if this be so, it is a part of our de- AVhceicr. 
 fence, and in what way can we examine the original comjjlainant 
 touching this defence but by a cross bill? Slory^s Eq.^ Fl. 311- 
 12. 
 
 But in truth the rules insisted on by the defendant in this cross suit 
 grew out of the rules relatng to titles to real property, and are not ap- 
 plicable to this case ; and if they were, they do not affect the riglit of 
 the defendant (in the original suit) to a discovery. A defendant has 
 a right to a discovery of the defects in the plaintiff's title. See Hare 
 on Discovery, 203-4. 
 
 The Chancellok. — The original bill in this case (1.) was filed for 
 the purpose of enforcing the liability of the defendants in that case, a 
 part of whom are the complainants in this cross bill, as directors and 
 stockholders of the Clinton Canal Bank, an institution organized un- 
 der the general banking law of this state. In order to arrive at a re- 
 sult upon the questions presented upon this demurrer it will be neces- 
 sary to give a construction to the provisions of the statute bearing up- 
 on this class of corporations. 
 
 By the 25ih section al' the original act, Laws of 1837, p. 84, and 
 by the 21st section of the amendatory act, Laivs of 1S2S, j). 32, the 
 directors are made liable for the amount which an insolvent institu- 
 tion organized under these acts may be indebted, and the stockhold- 
 ers are secondarily made liable for the debts of any such insolvent 
 institution in proportion to the amount of stock of any such stock- 
 holders. 
 
 The42d section of the act of 1839, 2^»g<^ 102 of the Laws of lliat 
 year, provides that whenever any creditor of a corporation shall seek 
 to charge the directors, trustees or other superintending officers of 
 such corporation or the stockholders on account of any liability crc- 
 ated by law, he may file his bill for that i)urpose in the court of chan- 
 cery. 
 
 By the act under which this bank was organized the liabilities of 
 the directors and stockholders were fixed. The act of 1839 prescri- 
 bed the mode in which a creditor may enforce this liability.' 
 
 The original bill in this case seeks to charge the directors and stock- 
 
 VoL. I. 57
 
 448 CASES IN CHANCERY. 
 
 FirBtcircuit. holders as such under the act, or in the alternative as partners frau- 
 dulently combining under color of the general banking law. 
 
 For the purpose of a defence to the original bill the discovery 
 sought by the cross bill is immaterial. The statute makes the direc- 
 tors and stockholders liable for all deficits in consequence of the in- 
 solvency of the bank. 
 
 If the defendants are fraudulent copartners, they are equally lia- 
 ble for the entire amount of the indebtedness of the concern. It is 
 not alleged that the money is not actually due from the defendants, 
 and the mere fact, from the course pursued by the stockholders and 
 officers of the bank, their notes had become depreciated in the mark- 
 et would not discharge them from their liability, which is for the 
 entire amount of the indebtedness of the concern. 
 
 It is not alleged that the complainant is not the assignee of the cer. 
 tificates, but it is alleged that if he is the assignee of the certifi- 
 cates, and holder of the bills he holds them as trustee for Hill, or 
 some other person or persons. Where the object of the bill is mere- 
 ly to collect money or reduce it to possession, it is not necessary for 
 an assignee either of a bond, note or chose in action to make the ces- 
 tui que trust parties, although the rule is otherwise where the exist- 
 ence or enjoyment of trust property is to be affected by the prayer 
 of the suit. Calvert on Parties 17, Law Library 212. 
 
 There is no pretence that the amount claimed by the bill is not due 
 and I do not perceive how the discovery sought for by the cross bill 
 can constitute a det'ence. 
 
 Demurrer allowed. 
 
 (1.) This CHse .should have siircpeileil Ihc rase of If'/icclcr vs. Clinlim Gannl Bank ct. uL, on 
 page 449. instead ol preceding ii, ilial being ilie original and this ilie cross suit.
 
 CASES IN CHANCERY. 449 
 
 Russell M. Wheeler, vs. Clinton Canal Bank, Willfam S. ^'"'Circu.t. 
 Stevens, Samuel C. Munson, Elkanah B. Comstock, Elijah ^'^y^^ 
 F. Cook, Alphonso B. Newcoeb, William Phelps, William vl'"' 
 H. Adams, Samuel Powek, David H. Parker, William M, ^■''"'"J' ^''- 
 
 rr iir !»» TT7 -KT T ""' Bank. 
 
 Knowlton, Warren Messenger, VVtLLtAM A. Nelson, Isaac 
 Adams, William F. Mosley, David Paddock, Isaac Paddock, 
 George W. Wisner, Peter Van Avery, Alfred Judson, James 
 L. Conger, Charles Hubbell, and James E. Beers. 
 
 Where a bill is fileil charging defendants as a voluntary association, combining to defraud such 
 as should receive their notes, /leld that the fact that another creditor has seen fit to treat them 
 ns a corporation, and has filed his bill and obtained the appointment of a Receiver of their 
 effects as such, cannot deprive complainant of his remedy in tliis form, if he can establish the 
 allegafions in his bill. 
 
 Where bill charges defendants in an original procedin;; ns a fraudulent association, it is no ground 
 of demurrer, that it prays the appointment of a Ueceivcr. The rules concerning judgment 
 creditor's bills do not apply to such a case. 
 
 Where remedy at law is difiicult and doubtful, this court will entertain jurisdiction. 
 
 Courta of Equity have concurrent jurisdiction in cases of fraud. 
 
 A bill may be sustained against different persons relative to matters of the same nature, in 
 which all of the defendants were more or less concerned, though not jointly in each act. 
 
 This was a hearing on demurrer. 
 
 The bill states that under the act known as the general banking 
 law, books were opened at Pontiac, in the county of Oakland, on 
 or about the twentieth day of Novennber, 1837, to receive subscrip- 
 tions for a banking association to be located at that place, and called 
 the " Clinton Canal Bank, " with a capital stock of fifty thousand 
 
 dollars, to be divided into one thousand shares of fifty dollars each. 
 That the whole amount of stock was taken, and that on the twenty- 
 third day of November, aforesaid, an election of directors and offi- 
 cers of said bank was duly held That bonds were executed and filed 
 with the Auditor General, and the directors and stockholders claim- 
 ing to have complied with the provisions of law issued their bills, and 
 commenced banking business under their corporate name on or about 
 the eleventh day of December, 1837. The bill then sets out several 
 assignments and transfers of stocks, and consequent changes of offi- 
 cers, and states that in pursuance of an act amendatory to the gen- 
 eral banking law, different bonds and mortgages were executed to
 
 450 CASES IN CHANCERY. 
 
 First Circuit, jjjg AucJitoi' General as collateral security, at various times from somo 
 Wheeler, ^^f"^ ^^ March, 1838, to some time in May of tlie same year. It 
 
 Clinton Cn- then sets out further assignments and changes of officers, and prays 
 a discovery of such other stockholders and officers as may have been 
 interested in said bank. States that the bank continued to do busi- 
 ness until about August twenty-second, 1838, since which time it 
 ceased to carry it on, and has had no officers or offices during the 
 past year. That the bank went into operation under, and availed it- 
 self of the provisions of the suspension law of June twenty-second, 
 1837, and did not make a practice of paying its liabilities in specie 
 until about May sixteenth, 1838. That only $2,220,95 of the capital 
 stock was paid in specie, and the balance of the first thirty per cent 
 was paid in specie certificates and stock notes, none of which have 
 been paid, and that no more than the first thirty per cent of the cap- 
 ital stock has ever been paid in. That on the twenty-fourth day of Feb- 
 ruary, 1888, the bank had on hand in specie only $3,164 85, that the 
 average amount on hand from the time of commencing business up 
 to the sixteenth of May, 1838, was less than three thousand dollars, 
 and at no time amounted to more than three thousand five hundred 
 dollars. That on the twenty-fourth day of February aforesaid their 
 ■circulation amounted to $30,450, and their indebtedness exclusive of 
 circulation, to $7,867. That on the same day the amount due to the 
 bank from its directors was $6,390 81, from stockholders, $3,580, 
 and from other persons, $20,402 80. That previous to the injunc- 
 tion issued in October, 1833, the bank had in circulation over $39,000, 
 and time drafts amounting to more than $25,000, most of which are 
 unpaid, and parcels have been presented for payment from time to 
 time, and payment refused. Charges that during the whole period 
 of its operation, the directors and stockholders owed the bank more 
 than four limes the amount of specie and good funds paid in; 
 that at the time when it stopped business, William S. Stevens 
 was owing nearly $20,000, Charles Ilubbell more than $5000, and 
 other directors and stockholders owed considerable sums, and that the 
 whole amount of assets reported by the receiver, including these 
 debts is less than $50,000, most of which he considers doubtful. 
 That the bank has never been solvent since January, 1888, and can- 
 not pay more than ten per cent, of its liabilities and has no proper-
 
 CASES IN CITANCHRY. 451 
 
 ty wliicli can bo reached at law. Charges the subscribers to the bank F'rsK'irciiit. 
 witli forming the association for fraudulent purposes, and that all the ^vhecicr. 
 stockholders knew and participated in their fraudulent designs and op- cijinoii' c.i 
 erations. States that complaniaiit is a creditor ol tlie bank, liolding 
 its notes and receiver's certificates, that they were presented to re- 
 ceiver for payment and payment refused. Charges that detendants 
 are individually liable. Prays the appointment of a receiver, and 
 satisfaction from the assets and property of defendants. 
 
 The defendants demurred to the bill, and assigned the following 
 causes : 
 
 1. That complainant had an adequate remedy at law. 
 
 2. That a receiver has been appointed, and it does not appear that 
 there will be any deficiency of assets. 
 
 3. That tlie defendants arc charged in diilerent capacities, and 
 having distinct liabilities. 
 
 4. That the stocklioldcrs cannot be charged until the property of 
 the directors is found insufllcient. 
 
 5. That there is no sufficient equity in the bill. 
 
 G. That the bill prays for a receiver, while it shows one to have 
 been already appointed, without asking his removal, or showing it to 
 be necessary. 
 
 W. Draper, appeared for D. Paddock, et. al. 
 
 S. G. WatsoiX, for William Phelps. 
 
 Richardson &. Knight, for Alfred Judson, et. al. 
 
 W, F. MosELY, in person. 
 
 It appears by the said bill that the same is exhibited agains 
 these invidual defendants and the Clinton Canal Bank, and otherst, 
 &c., for several and distinct matters, and causes in many of which 
 it appears bv said bill these defendants are not in any manner inter- 
 ested or concerned. 
 
 " If a bill blends together a demand by the plaintiff as legatee 
 against the defendant as executor with a demand of the plaintiif in 
 his private capacity against the defendant in his individual character* 
 it is good cause of demurrer. " 4 John. Ch. Rcji. 199. 
 
 " If a bill be brought concerning things of distinct nature against
 
 452 CASES IN CHANCERY. 
 
 Firsicirouii. several persons, or against one it is demurrable. 2 Mad. Ch. p. 234. 
 ""^^^^^^^ See also 5 Paige Ch. Rep. 79. In that case the court says : — 
 ciimon Ca- " The form and effect of a demurrer to a bill in Chancery for mul- 
 nui Hank. ^J{v^^.jQ^JgJ^g^g jg substantially the same as a demurrer to a declaration 
 at law for a misjoinder of parties, or of different causes of actions 
 which cannot be properly litigated in the same suit. " "And where 
 a joint claim against two defendants is improperly joined in the same 
 bill with a separate claim against one defendant only, either or both 
 may demur. *' ' And the same principle is found in the 6 Paige 
 28, and the authorities there cited. This bill is exhibited against 
 a bank, against directors of the bank, against stockholders of the 
 bank, against the obligors on one bond, in which the penalty is said 
 to be $r2.'3,000, against the obligors on another bond, in which the 
 penalty is said to be $75,000, and also against the mortgagors of real 
 estate pledged for the redemption of the bills and liabilities of the 
 said bank. 
 
 By said bill it appears tliat the said association of persons never 
 became a legal corporation or banking company in accordance with 
 the statute. 
 
 By the act to organize and regulate banking associations, passed 
 March 15, 1837, it is enacted that " no such association shall com- 
 mence operations until thirty per centum of the capital stock shall 
 be paid in, in legal money of the United States. " 
 
 The bill alleges ihat the whole of the stock was taken, and that 
 " only $2,220 95 of the capital stock was paid in in specie, the bal- 
 ance of the thirty per cent, being paid in specie certificates or stock 
 notes, that no more was ever paid in, and that none of the certificates 
 or stock notes have been paid." See 32 f jlio of the bill, see also 9th 
 section of act of 1837, where it says that " all such persons as shall 
 become stockholders of any such association shall, in compliance 
 with the provisions of this act, constitute a body politic in fact and in 
 name, «S;c. " 
 
 By said bill it does not appear that any matter is set forth in said 
 complainant's bill for which he has not an adequate remedy in a 
 court of law. 
 
 The rule is this: "In general, courts of Equity will not as-
 
 CASES IN CHANCERY. 453 
 
 sume jurisdiction where the powers of the ordinary courts are '""'"i <-"'•■•:"'' 
 sufficient for the purposes of justice. " Tlie present suit is ^v^ccier. 
 brought to recover the amount of the bills and Receiver's re- ir\n"n ca- 
 
 , . ,,,, ,. mil Bank. 
 
 ceipts now in possession of the complainant, i he statute directs 
 that all demands against the bank after the appointment of a Receiv- 
 er, shall be presented to him ; and a mode of proceeding is prescrib- 
 ed by which all the assets of the bank are to be applied to their pay- 
 ment. Here is an adequate statutory remedy, so far at at least as 
 the assets extend. 
 
 There is also an adequate legal remedy which may be pursued upon 
 the liability of the defendants, as a bank, as directors, as stockholders, 
 obligors on the bonds and as mortgagors, 
 
 Seth Beach has been appointed by the Chancellor, Receiver of 
 the bank, and as such Receiver, is vested with all the estate of 
 the bank, and is a Trustee for the creditors and stockholders. 
 
 By the tenth section of the laws of 1839. page 96, the Receiver 
 is vested with all the estate, real and personal, of the corporation, 
 &c., and is the trustee of the estate, for the benefit of creditors and 
 stockholders. 
 
 By the eighth section, the Chancellor is authorized to appoint Re- 
 ceivers, &c., and on such appointment the corporation shall there- 
 upon be dissolved, and shall cease to exist. 
 
 As such Trustee the Receiver is the only accountable person, the 
 corporation is defunct, the powers of the defendants, their rights and 
 duties abrogated, and passed over by operation of law to the Recei- 
 ver, the only person known in the law, in the place of said corpora- 
 tion. As to power of Trustees, see 6 Miimf. R. 366, 2 i'ldgCy 
 21,438. 
 
 The bill prays for the appointment of a Receiver, when it appears 
 from said bill that a Receiver had before been appointed to take charge 
 of the estate and effects of said bank, without showing that said ap- 
 pointment had been obtained by collusion or fraud, or that said Re- 
 ceiver was an improper person to discharge the duties of said trust, 
 and seeking his removal. 
 
 The remedy of the complainant, for the appointment of a new Re- 
 ceiver, is by filing a sup[)lemental bill ; sec 5 Paige 46. And al-
 
 454 CASES IN CHANCERY. 
 
 Kirst Circuit, thougl) the forty-second section of the act, allows any creditor to 
 Wheeler ^*^^ ^'^ ^''' against directors and and trustees, and to proceed as in 
 Clinton Ca- Other cases, yet it was never intended to apply in a case where a 
 Receiver had been appointed, and the property and effects transfer- 
 red from the bank and its officers to the trustee. 
 
 It would in effect be authorizing him to do an act by which he 
 could derive no benefit whatever. 
 
 If the Receiver is an improper person, then tlie remedy was by 
 removal, on application, founded on petition or affidavits or other evi- 
 dence of improper conduct, and that tiie trust funds were in dan- 
 ger of being squandered. See Hop. Re}). 435. 
 
 The complainant has not alleged that he had obtained any judg- 
 ment or decree against the defendants or either of them, or that exe- 
 cutions had been issued and returned unsatisfied. 
 
 This suit having been instituted in a case, not within the statute of 
 1839, may have been intended as a creditors bill so called, under the 
 twenty-fifth section of chapter two, title one, part three of the Re- 
 vised Statutes, of the general powers, duties and jurisdiction of the 
 court of Chancery, R. (S. 365. 
 
 And this section of the act requires that an execution should have 
 issued upon a judgment at law against the property of the defendant 
 shall have been returned unsatisfied in whole or in part, which is not 
 alleged ih this bill. See Chancery Rule, 109. 
 
 The bill does not allege that the complainant knew, or had reason 
 to believe that the defendants or either of them has or had equitable 
 interest, things in action or other property of the value of one hun- 
 dred dollars, or more, exclusive of all prior claims, which the com- 
 l)lainant had been unable to discover and reach by execution. Chan- 
 cery Rule, 109, 
 
 The bill does not charge that it is not exhibited by collusion with the 
 defendants or for die purpose of protecting the property and effects 
 of the debtor against the claims of the creditors, and that said bill 
 was filed for the sole purpose of compelling payment and satisfaction 
 of complainant's own debt. Chancery Rule, 109. 
 
 E. C. Seaman, contra. 
 
 1 . The bill shows that the subscribers to the stock of this bank- 
 ing company, did not comply with the conditions of the general bank-
 
 CASES IN CHANCERY. 455 
 
 ing act ; that is they did not pay in thirty per cent of the stock and i''''*" circuit, 
 comply with those provisions of the statute which constitute a condi- ^v,,ee,er. 
 tion precedent to their becoming a corporation ; but, on tiie contra- ciimon ca- 
 ry, that all their proceedings are based on a fraudulent violation of 
 the statute, which was used merely as a cover or device under 
 which they carried on their fraudulent schemes and practices ; they 
 therefore did not become a legal corporation, but constituted a joint 
 stock unincorporated banking company, and are liable individually 
 as copartners in a swindling operation. See section ninth of gener- 
 al banking law, and section ybwr/A of the amended act. 
 
 2. A court of Chancery has jurisdiction of the case, independent 
 of any statute, and can enforce the collection of the plaintiffs claim 
 against the directors and stockholders of the company on the follow- 
 ing grounds : 
 
 1st. On account of the convenience of enforcing contributions be 
 tween the several defendants in proportion to the amount of stock 
 held by each. See the case of Briggs vs. Penniman, 1. llojh Ch. 
 Rep. 300 ; 8 Cow. Rep. 387 ; Mandeville vs. Bn'ggs, 2 Pet. Rep. 
 482 ; 8 Peters R. 256. 
 
 All the defendants are liable in their individual capacity jointly 
 and therefore the bill is not multifarious. Brinkerhoof vs. Brown. 
 6 J. C. R. 139 to 159. See more jmrticularly pages 153 and' A. All 
 combined to defraud, although the defendants performed distinct parts 
 in the drama of fraud, all tending to one point. Felloivs vs. Fel- 
 lows, 4 Cow. Rep. G82, and Campbell vs. McKay, 7 Simons 564 ; 
 Story's Eq. PL 530 and 539. 
 
 Persons liable on a contingency are proper parties, defendants in 
 equity, Story's Eq. PI. sections 74 and 75, 07i page 76 a7id 77. sec- 
 tion 199, page 152, and sections 169, 172, 173 and 174; pages 159, 
 160, 151 and 173; sec. 232 page 199 and 200; sec. 224, page 196. 
 
 In a variety of cases, the plaintiff may or may not join certain 
 persohs as parties, and defendants at his election. Story's Eq. PL 
 section 221, page 194; section 169, pages 159 andlGO; 2 Paige, R. 
 279. 
 
 2nd. In consequence of the frequent transfers of stock in this case 
 
 as well as the frequent change of directors or some of them, and the 
 
 difficulty or impossibility of showing when the notes or bills of the 
 Vol. I. 58
 
 45G CASES IN CHANCERY. 
 
 First Circuit. ]^^^^\^ ^^^ which (his suit was cominencec], were issued, it would be dif- 
 AVheeier. ficult if not impossible for the plaintilF to determine on whom to 
 
 Clinton Ga- fix the liability at law, and his remedy if any at law, would there- 
 fore be doubtful and difficult, and on that account a court of Equity 
 has jurisdiction. American Insurance Co. vs. Fisk, 1 Paige Cli. 
 Rep. 92 ; Weymnuth vs. Boyer, 1 Ves. Jam. 416. 
 
 3rd. The transactions of the defendants are fraudulent, and they 
 used the general banking law merely as a cover for their fraudulent 
 devices and schemes. A court of Equitj' has concurrent jurisdiction 
 with courts of law in matters of fraud. Coll vs. WolUster and Ar- 
 nold 2 P. Williams, 156; Green vs. Barrett; 1 Simons, 45, do 37; 
 Blair vs. Agar, 2 Simo?:s, 289. 
 
 4th. The statute of Michigan of 1839 for the voluntary dissolu- 
 tion of corporations, and for other purposes, applies only to legal 
 . corporations, and not to cases of this kind, where the company did 
 not become a legal corporation. That statute also gives an accumu- 
 lative remedy, and does not take away the usual remedy to which 
 the creditors were entitled in equity previous to the statute. We 
 claim the common remedy in equity independent of the statute. — 
 Crittenden vs. Wilson, 5 Coic. 1G5. 
 
 The Chancellor. — The bill in this cause subsstantially charges 
 the defendants with having combined under the color merely, of the 
 general banking law of this state, for the purpose of defrauding the 
 complainant and other persons, who should receive the notes of said 
 banking association. It not only charges that the original stockhold- 
 ers and officers of the institution, but also, that the persons severally 
 charged with having become subsequent purchasers of the stock, pur- 
 chased for the purpose of aiding in such fraud and with the intent 
 and design to deceive and defraud the complainant and all the credi- 
 tors of said association. It purports to charge them and each of them 
 in their indiv'dual capacities as members of a fraudulent copartner- 
 ship, or association. A variety of questions have been raised upbn 
 the different demurrers. It will not be necessary to notice all the 
 points raised at the argument, as the grounds upon which the bill is 
 sustained, and the demurrers overruled, will appear in the opinion
 
 CASES l.\ CHANCERY. 457 
 
 The complainant in this case seeks to charge the defendants as a vol- t"»si circuii, 
 unfary association, who under the pretence and color of the general ^vhccicr 
 banking law of this state have conspired to defraud the complainant, ciinton Ca- 
 and such others as should receive the notes of said association. The 
 fact that another creditor has seen fit to treat them as a corporation, 
 and has filed his bill and obtained the appointment ofa Receiver of 
 the effects of this corporation, cannot deprive this complainant of his 
 remedy, in this form, if he can establish tlie truth of the allegations 
 of his bill. The objection that the bill contains a prayer for the aj)- 
 pointment of a Receiver is not a good cause cf demurrer; it may or 
 may not have been necessary, but is not such an ot jection as can 
 sustain the demurrer. This is not what is termed a creditors bill ; 
 but on the contrary, it seeks to charge the defendants in an original 
 proceeding as members of a fraudulent association or co-partnership. 
 The objectfons therefore that the complainant has not in the allega- 
 tions in his bill, conformed to the rules required in creditors bills, 
 have no application, from the view I take of the scope and objects ot 
 the bill. Another cause of demurrer is that the complainant has an 
 adequate remedy at law, and therefore a court of Chancery has not 
 jurisdiction. The frequent transfers of stock and changes of inter- 
 est, and the extraordinary rcanner in which the business has been 
 conducted, according to the showing in the bill, would render the 
 complainant's remedy at law both difficult and doubtful; this of itself 
 is sufficient to give this court jurisdiction. 1 Paige R. 920 Courts of 
 Chancery have also concurrent jurisdiction in cases of fraud. The 
 objection of multifariousness, that the several directors and stockhol- 
 ders are made parties, notwithstanding they were connected with this 
 association at diffijrent periods, and have distinct rights and liabilities 
 is the next and principal remaining question. From the manner in 
 which the business v/as conducted, it seems to me that the course the 
 complainant has pursued was the proper one. The stockholders and 
 directors only, are parties, and it is alleged that they all performed 
 different parts in the same drama. A bill may be sustained against 
 different persons relative to matters of the same nature, in which all 
 the defendants were more or less concerned, though not jointly in 
 each act. Should it prove in the event that any of these defendants 
 were not partners in the concern at the time the notes on which the
 
 458 CASES IN CHANCERY. 
 
 Firstcircuit. complainant prosecutes were issued, they may not be liable to contri- 
 Wheeier. ^^^® ^^ their payment. But if it proves true that this was a fraudu- 
 
 ciinton Ca- lent Combination, merely under the pretence of the statute, in which 
 the defendants all participated to defraud the complainant, it is but 
 just that each and all should be held responsible to the creditors who 
 have been defrauded in this way. From tiie view I have taken of 
 this bill it was not neces:ary that the Receiver should have been 
 made a party. The complainant is entitled to his dividend from 
 whatever may be obtained from the property of this concern in the 
 hands of the Receiver, without making him a party, and without a 
 waiver of hi& rights against the defendants in this form. 
 Demurrer overruled.
 
 INDEX. 
 
 A. 
 
 AMENDMENT. 
 
 yide, PRACTICE, PLEADING. 
 
 1. Where leave is given to amend an answer a new answer wlih the ainendmenis added, rausl be 
 made, filed, and copy served, or ilie original answer wiilidrawn by leave of ihc court, and 
 tlie amendments added, or tlie amendments must refer to the portions of the answer on file, 
 intended to be amended, and specifying their nature and application. Mason vs. Detrail 
 City Bank, -ii-Z. 
 
 2. Where amendments were in the form of affidavits, without referring to the answer, it was 
 held to be irregular. ib. 
 
 3. Courts have always been rigid in requiring that the proposed amendments should be slated in 
 the application, and a defendant will not usually be permitted to setup a fact or state of facts, 
 inconsistent with the original defence. Freeman vs. Michigan State Bank, 311. 
 
 4i When a motion was made to amend a plea, which motion was based upon an afTidavil, sui- 
 ting an additional fact, which was unknown to the defendant at the time of tiling the origi- 
 nal plea, and consistent witli tlie facts pleaded, llie court granted the motion. Ib. 
 
 5. It is not usual to refuse leave to amend pleas, yet ihe defendant must be lied down to & very 
 short time, in which to amend. This practice is consistent w iih the practice in permitting 
 amendments to sworn answers, and there is no reason why the rule should not be admitted 
 in amending pleas as well ns sworn answers. If a plea may be amended upon the ground 
 of a mistake or inadvertence, there can be no good reason why it should not be, for the pur- 
 pose of stating a newly discovered fact necessary to trie defence and consistent with the orig- 
 inal plea. ]b. 
 
 6. It is not a matter of course to allow the filing of an amended bill after replication and testi- 
 mony. A special application should be made to tlie court, with a full statement of the facts 
 intended to be incorporated in the amended bill, so the court can judge of their materiality. 
 Hammond vs. Place, 438. 
 
 7. Facts which have transpired subsequent to the filing of tlie bill cannot be eet forth by way 
 of amendment. . U. 
 
 APPEARANCE. 
 
 Where a solicitor has appeared in a cause, and a demurrer is filed, signed by solicitors who 
 have not appeared, the demurrer may be treated as without signature, and us a nullity. — 
 Graham vs. Elmore, 265. 
 
 ADMINISTRATOR. 
 
 1. Where the day appointed for an administrator's sale is rainy and inclement, and but few per- 
 sons appear and bid, and llie bids do not e.vcced half the actual value of the properly, it is 
 the duty of the administrator to adjourn the sale. Bcaubien vs. Poupard, 206. 
 
 2. An administrator cannot become the purchaser at a sale made by him us adminiELralor ; and
 
 460 INDEX. 
 
 wherean admiiiislrator procured liis brother-in-lavv to become ilie purcliascr, and immedi- 
 ately afterwards look n conveyance of the premises so purchased, from his brother-in-law, 
 Ihc sale was set aside, the deeds ordered to be delivered up, to be cancelled, and a re-sale or- 
 dered. ^*- 
 3. Where an administrator under a license from a Judge of Probate was proceeding to sell the 
 interest of the intestate in sixteen village lots, which interest was stated to be one undivided 
 half, upon a bill fdedby the other parties interested, slating that the intsetate owned only an 
 undivided interest of one third, an injunction was granted to restrain the sale, and the Chan- 
 cellor refused to dissolve the injunction, until the interest of the intestate was ascertained 
 and settled. Thayer vs. Lane, '-17 • 
 
 ALIMONY. 
 
 A Court of Chancery has no jurisdiction In a case where the bill is filed for alimony merely.— 
 Peltier vs. Peltier, *'• 
 
 ASSIGNEE. 
 
 Courts of Equity recognize and protect the rights of assignees, and enforce the performance of 
 contracts in their favor. Street vs. Dow, 427. 
 
 ACKNOWLEDGMENT. 
 
 1. The acknowledgmcul is no part of an instrument of assignment. Livingston vs. Jones, 
 
 165. 
 
 2. The allegation in a bill that the assignment of a bond and mortgage was duly acknowledged 
 before a commissioner of deeds, according to the laws of the state of New York, wliere the 
 same was executed, is sufficient on demurrer. -ifr- 
 
 B. 
 
 BANKS. 
 
 yidc, FRAUD, C0RP0U.\TI0N. 
 
 1. AVhere It appeared fioni the Statements in the bill, that a bank commissioner exammed into 
 the affairs of the Bank of Brest on the second day of August, 1838,aiid the specie then on 
 hand was ©9,754 92, and that another examination of the affairs of the bank was made on 
 the eleventh day of the same month, and it then had but ^138 fe9, and Uiere was no corres- 
 pondent decrease of liabilities ; and about $44,000 of the issues of the bank were in the hands 
 of agents without suflicient sureties ; and that of the assets there were $5,000 in uncurrcnt 
 notes; and that S'23,000 of post notes were issued on the fourth day of the same month of 
 August, without being endorsed by a bank commissioner; and the bill charged the bank to 
 be insolvent ; and tlie answer admitted the facts set forth in the bill, but denied the insolvency 
 it was held that the bank was insolvent within the meaning of the law, and that a proper case 
 was made for the appointment of a receiver to take eharge of its effccls. Bank Commission- 
 rrs vs Bank of Brest, ^ 
 
 2. A transfer, by way of security, of a portion of the elTects of a moneyed corporation, for the 
 purposeof carrying on the concern, is within the powers of the directors; and a corpora- 
 lion which has no particular mode pointed out for closing its concerns, may make an assign- 
 ment on obtaining the assent of the stockholders. ^"• 
 
 3. The directors of a iiio:u-yed corporation, like that of Uic Bank of Brest, have no power to 
 make an assignment, williout being authorized so to do by the stockholders. lb. 
 
 \. The statute prescribes the mode in which the aflairs of banking associations, established un- 
 der the general banking law of this stale, shall be wound np, in case of insolvency, and this 
 forms apart of ihe security to the puhlic, and is one of the conditions npon which Ihey take 
 their chartered powers. '"• 
 
 .') An assignment made by Ihc directors of the Bank of Brest, to u trustee, for the benefit of
 
 INDEX. 461 
 
 rredilors, wiili a view lo cvaJi^ the provisions of the slatuie, was lielil lo be against the poli 
 vy of the law, nnd void . , ll>. 
 
 6. Where an applioulion was made, under ihe act of June 21, 1S37, for an injunction against 
 the Bank of Pontiac, and the bill alleged merely a demand and refusal on the part of the 
 bank to pay its notca, ihe Chancellor refused tu grant the injunction prayed for. Barnnm 
 rs- Bankof Pontiar, IIC. 
 
 7. In the act incorporating the Bank of Pontiac, the act of April, 1833, is referred to, and in 
 effect, made a part of its charier. That act gives the bank sixty days within which to redeem 
 its notes, and the further provision, that that act shall not prevent the issuing of an injunction 
 does not change the law respecliiig the granting of injunclions. lb. 
 
 8. The act of June 21, 1837, which providi's that an injunction may be issued when any bank- 
 ing institution shall refuse to pay its debts, is not imperative, but leaves it in the sound dis- 
 cretion of tiie court, upon aproper case being made. 7ft 
 
 0. An injunction against a bank goes to prevent all action whatever, and Is rather in the nature 
 of a linal injunction, which is sometimes granted at the termination of a cause, Ihan the usu- 
 al injunction to prevent some particular mischief. /ft- 
 
 10. Except in cases where the bill is filed by a bank commissioner, showing fraud, violation of 
 the charter, or insolvency, courts of equity require notice of application for injunction, 
 and also require a case to be made that would authorize the court to wind up the concerns of 
 the bank. lb. 
 
 J I. Where an individual creditor had filed his bill against a moneyed corporation, obtained an 
 injunction and the appointment of a receiver, and the receiver had taken upon hirasell the 
 trust, and other creditors had filed their claims, it ifos Ac/d, that the creditor who had tiled 
 his bill, oblainetl theinjuuction, and the appointment of a receiver, was not eniiileil as a mat- 
 ter of right, (iipon being paid his demand) to dissolve the injunction, dismiss his bill,and dis- 
 charge the receiver. Fay vs. Eric and Kalamazoo Rail Road Bank, 194 
 
 12. There is no doubt that this court has the power, in such case, to dissolve the injunction, dis- 
 charge receiver, and permit tlic party to dismiss his bill, when it is satis.'ied tlial the interest 
 of all concerned will be best s!il^?:ervcd by permitting the corporation lo manage its own con- 
 cerns, /ft- 
 
 13. AVherc a note for $10CO was made payable at the Bank of Michigan, and other notes were 
 . turned out by the maker to secure the endorser of the $11)00 note, with the understanding and 
 
 agreement ihutlhc noles so turned out should be placed in the bank for collection, and when 
 a sufficient amount should Le collected on the notes so turned out, lo pay the ® 1000 note, the 
 same should be applied in payment tlicreof, it was held, that it came fairly witliin the scope of 
 the powers of the officers of the bank, ss one of the most ordinary transirclions of taking se- 
 curity for a debt. Wales vs. Bank of Michigan, 30?. 
 
 11. The provisions of the acts of June 21, lS-37, and the act of April 12, 1S41, in regard to 
 banks and incorporaiionsconimenied upon, and explained. Attorney General, vs. Bankof 
 Michigan, 315. 
 
 15. The fact that a bank (not protected by staiuie authorizing a suspension of specie payments) 
 has stopped payment, is not of itself conclusive evidence of its inability to pay its debts, but 
 isprima facie evidence of inability, or insolvency. /ft- 
 
 10- The rule adopted in this state, has been, not to grant an injunction in the first instance, up- 
 on the allegation alone, that a bank has stopped payment, but to grant a rule to show cause, 
 and require notite to be given to the defendants. If not explained or excused in cases where 
 the banks are not protected from a forfeiture of their charters, by reason of n failure, the 
 court would be authorized to grantan injuiJCtion and appointa receiver. But when the banks 
 are authorized to suspend specie payments, such refusal is no! even prima facie eviilence of 
 insolvcncr. /*•
 
 462 INDEX. 
 
 17- The true consiruction of llie sixth section of the suspension act of April 12, 1841, is that Uie 
 statements should be made out and transmitted to the Secretary of State, on the days speci- 
 fied, or as soon thereafter as the same can be made out and stated. lb, 
 IS. By the general banking law, the directors and stoclUiolders of banking institutions associa- 
 - ted nnder it, are made liable for all deficits in consequence of insolvency. Cook vs. Wheeler, 
 
 443. 
 BILL. 
 
 Vide PLEADING. 
 
 c. 
 
 CONTRACT. 
 
 Vide,TTiA.VX), STATUTE OF FRAUDS. 
 
 1. Inadequacy of price, where it is so gross and palpable as of itself to appear evidence of ac- 
 tual fraud, may be sufficient to induce this court to stay the exercise of its discretionary pow- 
 er to enforce a specific performance, and leave a party to his remedy at law ; but inadequacy 
 of price TOer«/y, witliout being such as to prove fraud conclusively, is not a good objection 
 against decreeing a specific performance. Surtch vs. Hog-g-e, 31. 
 
 2. Courts of equity do not, as a matter of course, decree specific performance of contracts, but 
 exercise a discretionary power, upon a view of all the facts of the case ; and the discretion 
 mustnot be arbitrary and capricious, but regulated on grounds that will render it judicial. — 
 Me3Iurlrie vs Bennctte, 124. 
 
 3. The contract or agreement sought to be enforced must be mutual, and the tie reciprocal, or 
 a court of equity will not enforce a performance. lb. 
 
 4. The contract, in order to be enforced, must be certain m all its essential particulars. lb. 
 
 5. The ground of the interference of courts of equity to enforce specific performance, is not 
 simply that there is proof of the existence of a parole agreement, but that there is fraud, in 
 resisting the completion of an agreement partly performed. lb- 
 
 6. If an agreement to convey real estate be vague and uncertain, or the evidence to establish it 
 is insufficient, a court of equity will not enforce it, but will leave the parly to his legal rera- 
 dy ; and in order to take the case out of the statute of frauds, the acts of part performance 
 must unequivocally result from the agreement alleged. Millard vs. RamsdcU, 373. 
 
 7. It is a general rule that the Court of Chancery will not decree a specific performance wheH 
 the remedy is not mutual, or one party only is bound by the agreement. Hawley vs. Sheldon, 
 
 420. 
 
 S. It is a general rule that a contract cannot rest partly in writing, and p.irtly in parole. When 
 
 a contract is reduced to writing, all previous parole contracts relating to the same matter are 
 
 merged in the written lontract. Street, vs. Dow, 427. 
 
 COVENANTS. 
 
 Fide DEED. 
 Where covenants and conditions of bonds and other deeds are several, they may be good in 
 part, and void as the residue. Kirbtj, vs. Ingcrsoll, 172 . 
 
 CORPORATIONS. 
 
 P'ide, BANKS, FRAUD. 
 
 1. If a corporation suffers acts to be done which destroy the end and object for which it was in- 
 stituted, it is equivalent toa surrender of its rights. Bank of Michigan vs. Bank of Brest, 108. 
 
 2. The directors are trustees of the stockholders tor the purpose of carrying on the business of 
 the corporation, and not for the purpose of winding it up, and destroying its existence, lb. 
 
 3. Theprimary object of proceeding in Chancery against failing corporations is, not for the 
 purpose of dissolving the corporation, but to protect the assets for the benefit of creditors.—
 
 INDEX. 463 
 
 The power (o decree a dissolution of (he corporation 13 merely incidental. Fay ta. M^ie ft 
 Kalamazoo Rail Road Bank, j94, 
 
 4. Il is llie duty of llic court to look into the condition of the corporation, before it (Vill dig- 
 chftrge tlie receiver ; and make such order, either absolute ur conditional, as the case may re- 
 quire, /ft. 
 
 5. The jurisdiction of tliis court over corporate bodies, for the purpose ofrestrainiitg their op- 
 eraiiiins, or of winding up their concerns, is based upon, and controlled by the statutes of the 
 slate. Il has no such jurisJiction at common law, or uniler its general equity powers, and 
 it will not interfere, e.\cept when the case is f iriy brought within the scope and object of the 
 statute conferring this special jurisdiction. AUumeij General, vs. Bank of MicMgan. 
 
 0- If a corporation has forfeited its rights by misfeasance or nonfeasance, such forfeiture must 
 be shown by the pleadings •, it is not to be presumed, the legal presumption is otherwise, lb. 
 
 COxNSTUUCTIOX. 
 
 Vide, BANKS, CORPORATIONS, DEEDS. 
 
 1. Where one part of an act is equivocal, other portions of the act may be resorted to as a 
 guide. The occasion and the reason of the enactment, which is the same thing as the old 
 law, and the mischief; the letter of the act, whether words, be used in their proper, or in a 
 technical sense-, the context, the spirit of the act, whether statutes be in their nature re- 
 medial or penal, the subject matter and the provisions of the act, and the intent of the legisla- 
 ture in passing it, are to be considered ; v.Miich intent is not to be collected from any particu- 
 lar expression, but from a general view of the whole of the aet. Attorney General, r«. Bank 
 of Michigan, 313. 
 
 D. 
 
 DEFAULT. 
 
 Vide. PRACTICE. 
 
 DECREE, 
 Vide, PRACTICE. 
 
 dep;d. 
 
 yiig COVEN' ANT — ESTOPPEL — FKAUD— MORTOaGE — REGISTRY — STATUE OF FIL1.DD9 — TRUST, 
 
 1. Where a father executed a deed to his daughter, and the diiughter and her husband agreed to 
 support and maintain the grantor during bis natural life, and several months afterwards, the 
 grantor having died, and the diiughterand her husband having perlbriued their agreement, 
 upon a bill filed to set aside the deed, to give effect to a will previously made by the grantor, 
 il was held that the consideration upon which the deed was given was a good and valid con- 
 sideration, and that l!)e deed would notbe set aside, though the daughter had executed a deed 
 re-conveying the land to her father, as security for his support, the deed from the daughter 
 
 to the father having been cancelled or lost by the father. Goff,vs. Thompson, 60. 
 
 2. A deed executed liy a/eme covert without her husband joining with her is void. 76. 
 
 3. That a deeu absolute in its terms, may be proved by parole to have l;cpn intended by the par- 
 ties to operate only as a mortgage, cannot admit of a doubt. Wadsworth vs. Loranger, 113. 
 
 4. Where L. o'ltaine.l from B. a loan of S150, for 1 year, and for security gavean absolute deed 
 of certain premises, and B. sqon after absconded, and L. died, and the premises were sold by 
 L's. administrator to W., subject to the incumbrance, and J. afterwards, with a full knowl- 
 edge of all the facts procured a deed from B.; it uas held that llie deed from L. to B., though 
 absolute on its face, was only valid as a mortgage -, and that J. having purchased of B. with 
 noticeof the facts, could lake no greater interest than B. had in the premises, and that W. 
 was entitled to redeem, on payment of the amount due on the mortgage. 76- 
 
 5. The better opinion seems to be, that, even at cnmsnon law, a deed fraudulent in part, is alto- 
 gether void. Eirbtj vs. Ingersoll, ^'2, 
 
 Vol. I. 59
 
 464 INDEX. 
 
 6. The consiruction to be pm upon a deeJ conveying property illegally is, that the clause which 
 eo conveys It is voii! equally, whether it be by statute, or at common law. This is the rule, 
 except i.i cases where the statute declares the whole instuinent void. lb. 
 
 7. The cases where instruments have been declared good in part, and bad as to the residue, 
 icem to have been bonds, which were variant from llie statute, or deeds which purport to 
 convey lands, some portion of which the party could not lawfully convey. Jh. 
 
 f, A distinction seems to have been lalten between instruments void by statute, and void at com- 
 mon law. i!> 
 
 9. One good trust inserted in an illegal instrument of assignmem. cannot make that inslrumen 
 a valid one. 7*. 
 
 10. A grantor, who voluiitarily becomes a party to a deed which is fraudulent in part, forfeits 
 his right to claim benefit from another part which would have been good. lb. 
 
 DETROIT, CITY OF. 
 
 1. Purchasers of lots in the city of Deiroit acquire no other or greater rights from the fact that 
 said city was laid out by the Governor and judges of the late Territory ot Michigan, under 
 an act of Congress authorizing them so to do, than tiiey would acquire, if the same had heen 
 laid out by an individual who had legally dedicated certain portions for streets and alleys. 
 Cooper vs. Allien, 72. 
 
 2. Purchasers of lots bounded on a street or square, acquire a right, and are interested in the 
 preservation and appropriation of such street or square to the uses for which it was dedica- 
 ted, and the city corporation, witliout full and e.\press authority so to do, have no power to 
 grant any portion of such public street or square to be used for any purpose desirucuve of 
 the ends for wliich it was originaily dedicated. /*. 
 
 3. Where laud Is dedicated to u particular purpose, and liie city authorities have appropriated 
 it to an entirely different one, it affords ground for the interference of a Court of Cluuicery, 
 by injunction. 76. 
 
 i. The corporation of the ci:y of Detroit have no power, except that which is derived from tbe 
 act incorporating the same, or the acts s|)eci;illy reiaiing thereto. lb. 
 
 5. Where the common council of the city of Detroit granted a lease of a portion of a public 
 street in said city, [though under a resolution of a public meeting o( the freemen o( the city 
 of Detroit, lo the Commissioners of Internal Improvement, for the use of the state, to lay 
 a railroad tract, and erect offices, &c., an injunc:ion was granted to restrain the Coniniission- 
 rrs from so doing. jb. 
 
 6. The Commissior.erE of Internal Improvement have no right, under the general powers con- 
 ferred on them, to appropriate a portion of a street in the city of Detroit, for the purpose 
 of erecting ornces and other buildings thereon. yj. 
 
 7. Where the complainant had iieen in possession, and occupied certain premises in the city of 
 Detroit about thirty years, and had received a deed from the Governor and judges of the Ter- 
 ritory of Slichigan for the same, in the year 1821, and the city corporation were proceeding 
 to open a street through ihepreniiscs, (under the claim that the street was there originallv 
 laid out,) and to remove the fences and buildings for that purpose; an injunction was grtin- 
 led to restrain the corporation from so doing, and the Chancellor refused to dissolve the same, 
 until the defttndanis Fhouid establish their right at law. Devavx, vs. The city of Detroit, 98. 
 
 DU.^IURIJEK. 
 Fid«— rLEADiNO — pRACiirs:. 
 
 E. 
 
 EXECUTION'. 
 
 fide— IXJOKCTIO.V — JCRISriiCTION. 
 
 An eieruiion rannot be legally returned unsatisfied, until the return <l;iy. Steicard, vf. Stf- 
 vem, ,69
 
 INDEX. 405 
 
 EVIDKNCE. 
 
 Fidt — B lUK—ConfOKATimt—VttD. 
 
 ESTOPI'KL. 
 A p^riy who a(len:pi!> to iiiipeat-b his deed in court, must show In u hni hid equity con&lnts, ft>t 
 ut a question of law, he in estopped from denying his owu deed. Paynt, vt. JlUrtxTf, Hi. 
 
 F. 
 
 FKAUD. 
 
 Fide — CONTRACT— JURISDICTION— DEED— PARTSBRSUlr. 
 
 1. A party seelvlns; to set aside a conveyance, on the ground of iVnud, niUBt be prompt in com- 
 uiuiiicutiiig it when di-covered; and consistent in liis notice to tlie opjiosile party, of theusa 
 he intends to make of it. JDisbrow, vs. Jones. 102. 
 
 2. Where it appeared ih;it T. hud accused \V. of /or^jHjP his T's. name, to a subscription for 
 a newspaper, and W hadthreatenej T with a prosecution i"ur sinnder, and T, in order to set- 
 tle the matter, had assigned to VV a bond and mortgage, upon whicli there was due about the 
 sum ()f three hundred and thirty-five dollars, and T afterwards tiled a bill against W to liave 
 tlic bond and mortgage reassigned ; it teas held, lliat the assignment was made without con- 
 sideration, and W was direcied liy decree, to re-assign the bond and morignjc to T, in thirty 
 days from the service of a copy of the decree. Tale, vs. Whitney, 143, 
 
 3. By tlie term /raai, llic leoal intent and effect of the acts complained of, is uieant. Kirby, 
 vs. IngcTsoil, 172. 
 
 4. The law has a standard for measuring the intent of parties, and declares nn illegal act, pre- 
 judicial ;o the rights of others, a fraud upon such rights, although the party denies all iutei:- 
 tion of committing a I'raud. /j. 
 
 3. Where the Bank of Windsor had recovered a Judgment against T. E. for 359,000, and C. & 
 K. assuming to act as tlie agents and attornies of the l)ai;k, effected a compromise with T. 
 K. to pay 620,000, and T. E. assigned and delivered over to C. i E., as agents and attorneys 
 properly :ind securities to that amount, and the bank afterwards ticnied the authority of C. * 
 E. to make the compromise, and T. E. afierwarus assigned the property and securities to 1'. 
 &. R., and C. & E. refused to re-deliver the property and securities so assigned, and were 
 proceeding to collect and dispose of the same ; upon bill filed by P. A:. R. an iiijunctioa was 
 granted to restrain the collection and disposition of the properly and eecuritics so assigned, 
 and llie Chancellor ret'uscd to dissolve the injunction, on motion todisoulve {ai want of equi- 
 ty in the bill. Pratt, vs. Campbel/, 203 
 
 G. A Court of Equity will lend its aid to detect and redress a fraud, notwiihstandiiig the lap»o 
 of time ; but when the fraud is discovered, ihe parties must act upon that discovery within a 
 reason at)le time. The party seeking redress should nut wait until all those who were cog- 
 nizant of the Irans^iciion should have paid the debt of nature, and until no one wag left lode 
 ny or explain th-; allegations, without giving any eicuse for such delay. McLean, vs. Bar- 
 ton, 27>. 
 
 7. W and D being merchants, J entrnstetl ihcm with gondi to ecil on his account. W and D bU 
 lerwards proposed to purchase the goods of J and convey certain land:- in payment therefor, 
 six hundred and (il'iy acres of wliich they represented to tie pood pine lands, averagiug forty 
 pine trees to the acre from two and a half to five tVet through, nnd that there was a good mill 
 site thereon, wiih six 10 eight feet full of Wfater. J. sold the goods to W nnd I», nnd took :i 
 conveyance of the lands, relying upon the represenintions of Wand 1>, nnd wiihout having 
 ;een the some, and it turned out that the representations vrere not true, nnd that there wa« 
 pine limber upon but about one-fourlh of the land, an i upon that not much mere than one 
 half the quantity represented. Upon a bill filed for that purpo.^e.ihe court dfrlarcd the con- 
 tract rescinded, and decreed a re-delivery of the remaining portion of the goiN-;<, and awar- 
 ded to J., the complainani, the re-payment to him of the valun of the goodii u liirli had be*«
 
 466 INDEX. 
 
 sold by Wand D, and that, until the payment should he made, J. should retain a lien upon the 
 lands, as a security for the amount due him tor the goods which have heen sold. Jones, vn. 
 Wing, 301. 
 
 8. Where the transactions slated in the liill, by which certain notes were oblained, presented a 
 case of fraud, although, from the case made, it was doubtful whether the complainant could 
 defend successfully the full amount of the notes, and a general demurrer was interposed; 
 the court refused to sustain tiie demurrer, and required the defendant to answer. Ankrim, 
 vs. WoodworLk, 355. 
 
 9. In cases of fraud, where it is doubtful whether the defence would be good atlaw, the Court 
 of Chancery will retain jurisdiction. /*• 
 
 10. Where the defentian;s were prevented from making their defence at law by the acts of the 
 plaintiff, until the only witness by whom the defence could be proved was dead, and a reson 
 to this court, in consequence thereof, became IndlspensLible; It was held that the complain- 
 ants were entitled to relief In this court, and that it wiis not necessary for them to lake an ap- 
 peal, and then apply to this court for a discovery, in order to entitle them to that relief.— 
 Mack, vs. Duly, 266. 
 
 11. Where it appeared by the bill that tlie complainants became security for a third person, to 
 the defendant, on two promissory notes, and that the defendant extended the time ot payment 
 three several times for ninety days each.vvilhout tlie knowledge or assent of the sureties, and 
 the maker of the notes at the time of the extension was able to pay, but, at the time lo which 
 payment had been extended, he had become insolvent, an-; the defendant had comineuced two 
 several suits before a justice of the peace to recover the amount of the notes against the 
 sureties, and they appeared and defended, and, after the testimony was taken, the defendant 
 who was plaintiff in the justice's court, discontinued his suits, and after the decease of the 
 only witness on the part of the defence, new suits were commenced, upon which judgments 
 were recovered, the suits being undefended -, upon demurrer, it was held, that the case made 
 by the bin was such as entitled the complainants to relief In equity, and that it was compe- 
 tent lor this court to afford that relief In any stage of the proceedings as well afier, as before 
 judgments atlaw. ' ^^' 
 
 12. A party seeking to set aside a conveyance on the ground of fraud, must be prompt in com- 
 municating it, and consistent in his notice, as to the use he Intends lo tnake of it. Street, vs. 
 Dow, 427. 
 
 m. The directors and stockholders of bunks organized under the general banking law, if 
 charged as fraudulent copartners, are equally liable for tlie entire amount of tlie indebtedness 
 of the eoncern. Cook, vs. Wheeler, 443. 
 
 U. Where a bill is filed charging defendants as a voluntary association, conihining to defraud 
 Euch as should receive their nole.s, held, that the fact that another creditor has seen fit to treat 
 iliemasacorporation, and has fled his bill, and obtained the appointment of a receiver of 
 their effects as such, cannot deprive complainant of his remedy in this form, if he can estab- 
 lish tlie allegations in his bill. Wheeler, vs. Clinton Canal Bank, 449. 
 
 1.5. Where bill charges defendants in an original proceeding as a fraudulent association, it is 
 no ground of demurrer, that it prays the appointment of a receiver. The rules concerning 
 judgment creditor's bills do not apply to such a case. /&• 
 
 16. Courts of Equity have concurrent jurisdiction in case? of fr.aud. /*• 
 
 G. 
 
 GOVERNOR AND JUOCES. 
 
 Kide, DETROIT <:iTY OF 
 
 GUARDIAN AND WARD. 
 
 A guardian has ibe right to rollett and receive money due to his ward, on a bond and mort- 
 gage in the e.\ercit^e of hi.s discretion aa guardian. Livingston, vs. Jonet, i 165
 
 1NDF:X. 467 
 
 H. 
 
 HUSBAND AND WIFn. 
 
 fil/e— ALIMONY— UEED. 
 
 Aftrnt covert cannot file n bill ogniiiBt her liusltand witlmut prurhein ami. Ptllur, vs. Peltier.lU. 
 
 INTERNAL IMPROVEMENT. 
 
 Kide — DETROIT, CITY OF 
 
 INSOLVENCY. 
 
 f-'ide—JiASK — CORPORATION. 
 
 IN>;L"IiANCE. 
 
 Insurance is a personal coniraci, nnd does not pass with the title o'' the properly insured. Dif- 
 broio, vs. Jones, 4?. 
 
 INJUNCTION. 
 
 Vide, ADMINISTRATOR, B.VNK, CORPORATION, DLTROIT, CITY OF, JDRISDICTIOX, PRACTICE, TRCST. 
 
 1 Where an injunction and ne-ezeal were iisued ?.Iay 31, ISjO, and were returned, served on 
 tJie sixth of J une ; and the subpoena vv.is net issued until the second day of July following ; 
 it was held, to be irregular. Peltier, vs. Peltier, 19- 
 
 2. An injunction granted hy a justice o'f the Supreme Court, in cases where the statute autho- 
 rizes It, stands upon the same footing as if granted by the Chancellor; and in either case it is 
 competent for the defendants, in vacation, and before they put in tlicir answer, to move to 
 dissolve the injunction tor want of equity in the bill. Cooper, vs. Atden, 72. 
 
 3. This courtlias undoubted jurisdiction lo interfere by injunctiun where public officers are 
 proceeding illegally and improperly, under a claim of right lo do any act to the injury of the 
 rights of others. H- 
 
 4. An injuneiion staying proceedings in sixty-seven suits commenced in one day against the 
 County Commissioners, before justices of the peace, on county orders, was, on motion dis- 
 solved, on the ground tliat their defence was at law. Lapeer Couuty, vs. Hart, 157. 
 
 5. Where the etiuily of the bill is denied, the injunction, on motion, will be dissolved, and 
 where it is shown, by a special i)lea. that there is no equity in the bill, it'is the same, so far 
 as regards the motion to dissolve, as though the equity oftlie bill was fully denied by answer. 
 Eldred, vs. Camp, 162. 
 
 6. On a motion lo dissolve an injunction, an affidavit is admissible which goes lo show that the 
 injunction was irregularly issued, or that ihe officer allowing the injunction was misled, and 
 induced to gram the injunction contrary to law. Carroll, vs. Farmer's and Mccltaiiic's Bank 
 
 197. 
 
 7. The statute, (R. S. 374, s. 91,) is positive and peremptory ihat no injunction shall be gran- 
 ted lo restrain proceedings at law, when a cause is at issue, without filing a bond in such sum 
 as the officer allowing the injunction shall prescribe. lb- 
 
 i. When an injunction is asked lo stay proceedings ut law, it is incumbent upon the complain- 
 ant to siiow in his bill the state ot the pleadings, nnd the court in which the suit is pending, in 
 order to enable the ofliier to whom the application is made lor the allowance of the in- 
 jur.c ion, to judge of tiie propriety of its allowance, and to prescribe the terms upon which 
 the same shall be allowed. ^*' 
 
 9. Courts of Chancery will not sustain an injunction bill to restrain a suit or proceeding previ- 
 ously commenced in a court of a sister stale, or in any ofthe federal courts. lb. 
 
 10. When the complainant had due notice of a motion to dissolve an iujunclion, nnd he neg- 
 lectel to appear and oppose ihe motion, the defendant was permitted to take his order dissol- 
 ving the injunction with costs. Kellogg, vs. Barnes, 258- 
 
 41. The ground, and ouly ground, on which injunctions nre granted against third persons in
 
 468 INDEX. 
 
 possession of |)ersuiiiil proj eriy, anJ usleiisilily i;s rinlilful ownerK, upon an t-xjiarte r.pyiU 
 cation, is for tlie protection ot'tlic fund or property wtien slioun to Ue in danger, witliout ihla 
 inierpooitlon. Tliayer, vs. Sioift, 430. 
 
 12. Where an execution was returned liy the officer more than a month liefure the return day, 
 and a judgment ercditor's bill filed after llie return day, tlie injunction was dissolved. Slaf- 
 fi/rd, vs. Hulbert, 435. 
 
 J. 
 
 JURISDICTION. 
 
 T'idc. ALIMONY, B.(.NK, CORPOR.VTIO.M. FRAUD, INJUNCTION, LACHES, PEACTICE, PLEADING. 
 
 1. Tlie Court of Chancery will not take jiirisdiclion of a case wJiere. there is a plain and ade- 
 quate remeJy at law. BarrovSjVs. Doty, 1 
 
 Q. It is a general rule, that where' tlie bill prays relief to which the complainant is entitled, and 
 wiiich cannot he had at law, ii is sutlicient to give the Court of Chancery jurisdiction of the 
 cause. Rincland, vs. Dotij, 3. 
 
 3. The 20ih section cf the act of 1833, (laws of Michl^-an, page 381,) gives lliis court express 
 autboriiy to inquire into and settle conflicting claims of tilleto land. lb. 
 
 i. A Court of Chancery will compel a discovery in aid of a defence ftlaAv ; nor can there be a 
 doul't that It will slay proceedings at law, until an atit wer to the hill for the discovery can ba 
 obiained. Wright, vs. King, 12. 
 
 5. A Court of Chancery is not the appropriate tribunal for the trials of titles to land. Devaui, 
 vs. Cityof Delroit, ^^• 
 
 C. The jurisdiction of the Court of Chancery, to apply the property of the defendant, which U 
 beyond the reach of an execution at law, to thesaiisfaction of the debt due to the judgment 
 creditor, proceeds upon the ground that he has exhausted his remedy at law. Steuard, vs. 
 
 Stevens, ^'^^• 
 
 7. Courts of equity have jurisdiction, and will entertain proceedings for partition, where a por- 
 tion of the property has changed hands, and the rights and interests of the several parties 
 havebecomecouiplicated, and are in dispute. Thayer vs. Lane, 247. 
 
 8. The jurisdiction of .this court to interfere, and restrain public officers who are acting ille- 
 gally to the manifest injury of others, is well se'.tled, but the ground on which the court inter 
 feres in snch cases is, to prevent great or irreparable injury. Brotcn, vs. Gardner, 291. 
 
 9. Upon a bill filed to restrain the Commissioners of Highways from opening a road through 
 an orcl.ard of more than four years growth, and the gardens of the complainant, and, after 
 llie injunclion was issued, but before it was served, or the defendants had had notice of the 
 issuing of the injunction, the road was opened, and the answer denied that the road passed 
 through the orchard or gardens of complainant, and where, from the evidence, it was doubt- 
 ful whether the road passed through an orchard of the growth of four years, and the injury 
 was slight, the court of Chancery refused to retain the suit or close up the road, which had 
 been laid out, made, and fenced, and also refused to award an issue quantum damniicatus. lb. 
 
 10. It is competent for this court, wiiere it has acquired jurisdicUon for the purpose of granting 
 an injunction, to retain the suit for the purpose of giving damages to the complainant i but 
 whether this court w ill do so or not, depends upon the circumstances of the case. /*. 
 
 11. When tiae defendant is ignorant of the fads which consiitute his defence at law pending the 
 suit, or the defence could not have been set up as a defence at law, it forms an exception to 
 the rule that equity will not interfere to relieve against a judgment at law. JF^alet, vs. Bank 
 of Michigan. ' ^Cf-. 
 
 1-2. The court having obuiined possession of the case will retain it for the purpose of adjusting 
 the accounts between the parties, though the relief sought (a specific performance) cannot 
 be granted. Hawley, vs. Sheldon, ^20. 
 
 13. This court will not entertain a judgment creditors bill, until the jadgraent creditor has fully
 
 INDEX. 468 
 
 exhausted his remedy nl law. It is this fact ih.-il gives the court jurisdiction in this clnss of cn- 
 ses ; and it iias liecii repeatedly held llial the court will not su.st;iin a hill a-" n judgment cred- 
 itor's bill uiereiy, tiled before the return diy of execution, and it ia not sulflcicnt Hint the cic- 
 rution shall have been aciiially returned before the return day. Thaijcr, vs. Svtitk, 430. 
 
 H. Courts of Cli;inccr> have held in every adjudged case tliut the judgment creditor must *:ho\v 
 a strict and rigid coiiipliar.cc »viiii the rules and forms of law, before they wi:i administer the 
 harsh remedy of depriving the debtor absolutely of all control over ever) part and portion 
 of his properly. /ft. 
 
 1.5. Where a lien has been acquired iiy the levy of a.i e.tecutlon,or where there is an out-^tnud- 
 ing execution in the hands of an offi::er, and a fraudulent o!istruction has been interposed to 
 prevent its being levied, there can be no doulit that a hill may be filed In tins court, for a dis- 
 covery, and to remove such oLstrujiion. yS. 
 
 18. Where remedy at law is difiTicult and doubtful, Ihiscouri will entertain jurisdiction. Wlutl- 
 er, vs. Clinlon Canal Bank, 449. 
 
 17. The rijlit to tils a creditor's bill having once attached, by the return of the eiecuiion tinsa- 
 tlsfied, tlie party is not prevented from coramcncing proceedings in Chancery, liy iJie ii^suing 
 of a new execution. Clark, v^. f)avis, 427. 
 
 L. 
 
 LArv'DS •■V.XD LAND TfTLE.S. 
 
 yuif., ADMIXISTBATOR, DEED, DETROIT CITY OF, JUKISDICTION, ItECEIVPR, REOISTKY, STATTTE 
 or TKAUDS, TAX SALES AND TAX TITLES, VENDOR AND PCRCHASER; V."Ll-S. 
 
 1. The posKe.=sion of atcunnf is notice to a purchaser of the actual inti-re,;:! the tenant nr:y 
 have in the premises. Dishrow. vs. Junes, 41:. 
 
 2. Afier a coiifirnialioii of a cUiim to land by the board of Land Commissioners, under the act 
 of 1820, and patent is-sued, if competent at all for this Court to go behind the patent to settle 
 conflicting claims, it should only be done upon the clearest, and most irrefragable proof.— 
 Bernard, vs. Bougard, ]3P_ 
 
 3. U'hcre a sale of real estate was ordered by a Judge of Probate, and it appears that he him- 
 self became interested in the purchase, the sale was set aside, and a rc-.«ale was ordered to 
 be made, under the direction of the Court. Wallon vs. Torreij, 2.)!). 
 
 4. When the proprietors of a village or town have dedicated lots fonlreets, or for a public 
 square, and have sold lots with reference to such plan, they cannot resume and e.tercise acts 
 of ownership over the land thus dedicated, whisli will deprive their grantees of any privile- 
 ges wh eh they might derive from having such streets or squares left open. Bnt in every 
 such case, the dedication for the purpose claimed, must be made clearly apparent. Sinclair, 
 OS. Vumstock, jOj 
 
 5. Where a lot in the village of Adri;jn was granted to the county for the purpose of erectinj-i 
 court house and jail tlicreon, and the county erecied a court house and jail on another and 
 different lot in the same village -, it was held that this was sufficient evidence of the refusal of 
 the county to accejit the donation, according to the condition of the grant, and that it must in 
 fact revert to the donor ; and that persons purchasing lots adjoining had no right to insist that 
 this lot should be kept open as a public square, or common. /> 
 
 LACHES. 
 
 Vide— FKAtV, PRACTICE, LI.MITATIONP STATUTE Or, PLEADING. 
 
 J. A pnriy who has a defence at law, of which he i.s advised, and neglects to make it, comen 
 too late to this court, to ask to be relieved against the judgment. Barrows, vs. Doty, i . 
 
 a. If a party has a defence at law, of which he is advised before the trial, and neglects to make 
 it, or to apply to the Court of Chancery for a discovery, if neccsary to his defence, in aid of 
 theirial at law, he is precluded, ant! cannot afterward.s have relief in tliis rouri. fTHffhi. 
 vs. King. y.
 
 470 r^.l INDEX. 
 
 3. Where llie conipluinanl liail resteil for sever;il months after lie liad knowledge of Uie fraiul 
 complained of, and unlil the condition of the property had chan';eri, before he took any steps 
 to rescind the contract, this court refused to interfere, but left the complainant to his remedy 
 at law. Visbrow, vs. Jones, IC^. 
 
 4. Where the action was not commenced for upwards of twenty years after the right of action 
 accrued, and tio disability or excuse for the delay pretended, and no new discovery of facts 
 suggested, and both the nerson charged w itli committing the fraud, and his grantor veredead; 
 the court refused to sustain the suit liy rc;ison ol the lajise of lime, and held that the case 
 couKI not be aided by proof of facts which were not put in issue by the pleadings. MeLcan 
 vs. Barton, 279. 
 
 5. Thiscourt will not relieve against a judgment at law, on the ground of its being contrary to 
 equity, unless the defendant was ignorant of the fact in question pending the suit, or the de- 
 fence could not be received as a defence at law, or unless, without any neglect or default on 
 the part of the defendant, he was prevented by fraud, or accident, or the act of the opposite 
 party, from availing himself of his defence. This has been frequently so decided by this 
 court. Mack, is. Duly, 366. 
 
 LIMIT ATIONls, STATUTE OF. 
 
 Vide., LACHES. 
 
 1. Whether by section three of iJie Kcpealing Act contained in the Revised Statutes, (U.S. 
 697.) it was intended to continue in force the provisions of the acts of limitation repealed by 
 that act, where the time had " begun to run." or whether the time prescribed in the Reviacd 
 Statutes was iniended as the period at the expiration of which the suits should be barred, 
 quaere. McLean, vs. Barton, 2T9. 
 
 2. The statutes of limitations, and lapse of time, may be taken sdvantage of on demurrer. 11. 
 
 MEN. 
 
 ride, JURIS DICTIO.V, VENDOR AND PDRCU.VSER. 
 
 M. 
 
 MORTGAGES. 
 
 Vide, DEED, PRACTICE, REGISTRY, TRDST. 
 
 1. Where J, sold and conveyed certain premises to H. and others, for ^20,000, subject to the 
 unexpired term of W^., under a lease from J. of the same premises, and H, and others exe- 
 cuted a inorfage to J. upon the premises to secure the purchase money, and it was agreed 
 that.T. should receive llie rent from W. so long as W. remained in possession und.'^r the 
 lease, and that J. should pay to H. and others, the inlerpst on the ©20.000, so long as W. 
 remained in possession, and the first instalment of ©4,000 became due on the mortgage, and 
 J. proceeded lo foreclose the same, and the bill was taken as confessed as against the mort- 
 gagors, it was held that the amount due from J. to H. and others, by virtue of the agreement 
 to pay interest, should be deduit^d from the amount due on the mortgage, on J a reference 
 was directed to a master, to ascertain the balance due on the mortgage. Disbrow, vs. Junes, 
 
 302. 
 
 2. AVhere M. gave T. a mortgage, April 11, 1&31, as indemnity against a certain debt for which 
 T.wasliable, which mortgage was recorded July 24,18.33. and T. was sued, and had the 
 debt to pay ; and, April 9, IS.3.3. M. conveyed by an absolute deed, the lot mortgaged, together 
 with another lot, to C. and C, gave M. an agreement in writing to re-convey llie lots lo M. 
 upon M,'8 paying me amount of his debt, (about ©150.) due to C, and shortly afterwards 
 M., being in embarrassed circumstances, applied to C. for a further credit, and. in order to 
 obtain such further credit, M, gave up the agreement from C. to re-convey, and C's deed 
 fromM. was recorded July 20, 1833, (being four days previous to the record of T's mort- 
 gage) and the writing, or agreement, to re-convey from C. to M. was not recorded, and,
 
 INDEX. 471 
 
 June 20, 1d*1, C. conveyed the prrinises lo K., fur ilic amountduc from .M. to C, and June 
 3, 1S35, K. corivfyed to 1). and Vl.,il uas held, ihutilie deed frmii M.lo C. wiu n iiioiipa<;f. in 
 lis inception, and conlinui'd bo to be (noiwillislauding M. liaJ delivered up to C his agree- 
 ment to le-convey.) and ouglit to have been recorded as such, and that the recording of thai 
 deed, as a deed, thougli ilic record was prior lo tlint of T's inorlgage, could j-ivc it no priority 
 over that mortgage. Thumpaon, vi,Mach, 1^0 . 
 
 3. Where, in a foreclosure of a mortgage, hy advertisement under the statute, a mistake oc- 
 curs, wliicli renders the proceedings irregular and voidalile, the niorlgagce has a right lo 
 waive those proceedings, and commence de novo, by advertisement under the statute, or may 
 avail himself of the right he had, in the first instance, to seek his reiuedy in this court. Jl- 
 tcatcr, vs. Kinman, * -'■'• 
 
 4 Where the assignee of a mortgage tiles a bill to foreclose, setting forth the mortgage and as- 
 signment, he may, upon the notice re<iuired by the C2d rule lo the opposile party, have an or- 
 der lo prove Ihe assignment as an exhibit at the hearing, under the provisions of rule 50. Je- 
 rome, vs. Seymour, -JJ. 
 
 5. Where .\. e.vecutes a mortgage lo B. and then ?ells the mortgaged premises to C, subject to 
 the mortgage, and under an agreement ihat C. shall pay certain notes secured thereby, and 
 B. then executes to C. a fiuitclaim deed of the mortgaged premises, the premises fire dischar- 
 ged from tlie mortgage ; ami Ihc efleci is the same, where the mortgage has been assigned by 
 Ihe original mortgagee to a third person. Jerane, vs. Scijmour, 3j7. 
 
 P. 
 
 PARTNERSHIP. 
 
 ^'ide, FRAVD, rLE.VDINtJ. 
 
 1. One partner may bind liis co-partner in all matters within the scope of the co-partnership ; 
 the implied authority of one partner to bind his co-partner, is generally limited to such acts 
 as are iu their nature essential to the general objectsof the co-partnership. Kirby, vs. [nger- 
 
 soll, l""'^- 
 
 2. One partner cannot make a general assignment of the partnership effects, to a trustee for 
 the benefit of the creditors of the firm, without the knowledge or consent of his co-partner, 
 when he is on the spot and might have been consulted, lb. 
 
 3. There is no implied authority resulting from the nature of the contract of ro-purlnership 
 that will authorize one partner tomake a general assignment of llift partnership cflccls, with- 
 out the knowledge or consent of his co-partner. ■/*• 
 
 \. The authority impliedly vetted by each partner in the other, is for the purpose of carrying 
 on the concern, and uot for the purpo.=e of breaking it up and deslroying it. lb. 
 
 J. One partner does not, by any implication, confer a power upon his co-partuer, of divesting 
 him of all interest in, or authority over, the concern. H', 
 
 C. One partner may transfer a portion of the a5seis, for the purpose of paying or securing 
 debts, or lo raise means to carry on the concern : but the power of divesting entirely one part- 
 ner of his interest, appointing a trustee for both, and breaking up the concern, is not one of 
 the powers either contemplated or implied by the contract of co-partnership. lb. 
 
 1. The principle upon which general assignments, by one partner, have been declared void, is 
 that one partner has no authority lo make a general assignment of the partnership effects, in 
 fraud of the rights o( his co-partner to parUcipate in the distribution of the partnership ef- 
 fects among the creditors. l"' 
 
 e. As between bonafide creditors of a previous firm, and the separate creditors of a partner who 
 continued (he business, and was the sole visible owner of the property employed in trade, and 
 
 where the separate crc.litors had given credit, reh nig on the pioperty caiplorcd in Uade for 
 
 Vol. I. 60
 
 472 INDEX. 
 
 payment, such creditors should 6e preferre:! to the creditors of the previous firm. Topliff vs 
 
 ^ ., . 340. 
 
 Vail, 
 
 9. Tlie creditors of a partnership liave a right to payment out of the partnership effects, in pre- 
 ference to the creditors of an individual partner. •'*• 
 
 10. In the absence of any agreement to the contrary, it is fair to presume that a retiring part- 
 ner does not intend that the partnerslilp property shall be used for the individual benefit of a 
 partner who continues the business, leaving the debts of the firm unpaid; and this was held 
 to be the presumption where the retiring partner transferred the partnership effects to a part- 
 ner continuing the business, who agreed to pay tlie partnership debts, and gave bond to that 
 
 effect. •'^■• 
 
 11. A surviving partner having the legal right to the possession of partnership property, the 
 court will not deprive him of that right, unless upon proof of mismanagement, or danger 
 to the partnership effects. Connor, vs. \ Allen, Sil. 
 
 12. Where one of several partners dies, and the busmess of the copartnership is carried on by 
 the surviving partners, without the assent of the representatives, they have, as a general rule, 
 their election to demand interest on the amount of the share of the deceased, or take a share 
 of the profits ; but where the interest of the deceased partner had become vested in one of 
 the surviving partners, whs consented to the continuance of the copartnership, it was held 
 the rule did not apply. Millard, vs. Ramsddl.'', 373. 
 
 PRACTICE. 
 
 Vide, AMENDMENT, APPEARANCE, BANKS, INJUNCTION, JURISDICTION, M0RTOAGE3. 
 
 I. Filing bill, and process. 
 
 II. Motions, Petitions and Orders. 
 
 III. Supplemental and amended bill, and dismissing bill. 
 
 IV. Taking the bill pro confcsso, and opening the decree. 
 
 V. Amending the ansicer, or fling supplemental answer. 
 
 VI. Taking testimony and other intermediate proceedings. 
 
 VII. Reference to a Master, report and proceedings. 
 
 VIII. Decree, and execution thereof. 
 
 I. Filing bill, and process. 
 
 1. A creditor's bill cannot be properly filed until after the return day of the execution at law, 
 though the execution should be actudlly returned before the return day. Steward, vs Stevens, 
 
 169. 
 
 2. AVhere no preliminary order is required, it is not necessary that bills should be sworn to 
 although the answer under oath is not waived. Atwaler, vs. Kinman. 213. 
 
 3. The service of a subpoena upon a defendant out of the State is irregular. Pratt, vs. Bank 
 of Windsor, 254. 
 
 4. Bills of peace ai e only allowed where the complainant has established hia right at law ; or 
 where tlie persons who controvert Uie right arc so numerous as to render an issue under the 
 direction of this court indispensable to embrace all the parties concerned, and save a multi- 
 ;)licity of suits. Lapeer County, vs. Hart, 157. 
 
 5 -The cases where a deposite of money is dispensed with are where there is an uncertainly 
 as to the amount vvhicli is due. Schicarz, vs. Sears, 440. 
 
 II. Motions, Petitions and Orders. 
 
 1. Where a defendant is in contempt, he cannot move to set aside proceedings; but where 
 there IS merely a failure on his part to comply with the requisitions of an interlocutory or- 
 der, he may move to disch^^e the order for irregularity. Peltier, vs- Peltier, 19. 
 
 2. A motion to open a defauU tin the affidavit of the solitciior ihat the defendant had. as he bi- 
 lieved, a good defence by way of set-off, to a part, at least, of the amount claimed in the bill, 
 was refused, on the ground lhat no reason was shown why the affidavit was not made by 
 the party defendant, instead of the Solicitor. Sank of Michigan, vs. Williams. 219.
 
 INDEX. 473 
 
 3. This court unquestionably has tbc power to direct the alteraiiuii or correction of a decree 
 afier it has been enlereil, eilhor upon motion or petition, wlicrc there is cvidcinly n niisloke, 
 or clerical error. Bales, vs . Garrison, o-jl 
 
 4. AHidavita are not admissible to contradict tlic answer, upon a motion for the appointment of 
 a receiver. Connor, rs. Allen, 371. 
 
 5. A rule entered by consent, witliout fraud or misrepresentation, will not bo vacated. Ham- 
 mond, vs. Place, jgi. 
 
 a. On amotion to dissolve an injunction before answer, tlie allegations in tlie bill are to be ta- 
 ken as true. Schicarz, vs. Scars. 440. 
 
 III. Supplemental and amended bill; and dUmistin^ bill. 
 1 AVlierc the defendants moved for the confirmniion of u decree to dismiss the suit, on the 
 ground that the complaitiiints had failed to comply with an order entered under rule 20 
 for a copy of the bii;, and it appeared that subsequent lo the default the defcndanis had tiled 
 their answer, and moved (o dissolve the injunction ; it was held that the defendants had waiv- 
 ed their rio;lit lo dismiss the suil for want of service of a copy of the bill ; and it was further 
 
 held that this being an application for a final decree in the cause, should be made at a gener- 
 
 • 
 al, and not at a special term. Higgins, vs. Carpenter, 250 
 
 2. AVhere a cause is in leadiness for hearing against one defendant, and there is another defen- 
 dant as to whom the cause is not in readiness, the defendant who has ap[ieared and answer- 
 ed cannot notice the cause for hearing, but must move to dismiss the bill, for want of prose- 
 cution. Graham, vs. Elmore, 265 
 
 3. If material facts have occurred subsequent to the commencement of Uie suit, the court will 
 give the complainant leave to file a supplemental bill; and where such leave is given, the 
 court will permit other matters to be introduced into the supplemental bill, which might have 
 been incorporated in the origin.al,by way of amendment, and this is especially proper, where 
 the matter which occurred prior is necessary to the proper elucidation of that which occur- 
 red subsequent to the filing of the original bill. Graves, vs. Niles, 332. 
 
 IV. Taking the hill pro conf esse, and opening the decree. 
 
 1. A regular order to take the bill as confessed, will not be set aside upon a simple aflidavit of 
 merius, although an excuse is given for the default. Stockton, vs, Ji'illiams, 241. 
 
 2. In such case, the defendant must either produce the sworn answer which he proposes to put 
 in, or must, in his petition or affidavit, state the nature of his defence, and his belief in the 
 truth of the matters constituting such defence. lb. 
 
 .3 Where the demurrer of a party, who had appeared, signed by solicitors who had not ap- 
 peared, was treated as a nullity by the complainants, and a default was entered for want of 
 an answer, and it appeared that the signature of the wrong solicitors was put to the [demur- 
 rer by mistake, and that injustice would be done if the defendant should not be permitted to 
 answer, the default was set aside on terms. Graham, vs. Elmore, 265 
 
 4. A decree by default may be set aside, on motion, and the court decides the question on mo- 
 tion, where the facts appear, and there is nothing to dispute about l^ut the law of the court. 
 
 lb. 
 
 5. The general rule is, that when the answer shows a ilefciice, and there is an excuse shown 
 for the delay, the court will allow the answer to be filed on terms. Smith, vs. Saginaw City 
 Bank, 420. 
 
 0. The inclination of the court is always to permit an answer lo be tiled, if it discloses a de- 
 fence, unless there hae been intentional delay. lb. 
 
 V. Amending the answer; or filing supplemental answer. 
 
 1. An application to file a supplemental or amended answer, is seldom granted, and never, witli- 
 out the utmost caution, and when a just and necessary cflse is clearly made out, ijn.l it is then 
 generally confined to a clear case of mistake, as lo matter of fact, and as to that only ; and
 
 474 INDEX. 
 
 llie cDurl is still more cautious in s^ranling such an applicalion nflpr a consiileialile lappe ul 
 lime from llie filing of llie bill or original answer In tlio case. Graves, vs. 7Vi7e?, 332. 
 
 2. Where a motion was made, to file a supplemental or amended answer, in which it was pro- 
 posed to lake entirely new ground, and change entirely the character of the defence, and this 
 not upon the ground of any actual niistiike in a matter of tact, or upon any discovery of new 
 fads, but upon the ground that the defendant did not mean to be understood to slate as he had 
 stated in his answer ; the court denied (he motion. lb. 
 
 3 But where there was doubt in regard to the proper application of certain moneys, admitted 
 to have been received by the defendant, and the answer was obscure, and there was a possi- 
 bility that great injustice might be done to the defendant ; the court granted an order with re- 
 luctance, permiltinga separate supplemental answer to be filed, as to this [larticular, and ex- 
 plaining this ambiguity, lb. 
 
 4. Wliere a defendant had leave to file a supplemental answer to explain certain ambiguities in 
 his original answer, and be incorporated other matters of defence in his supplemental an- 
 swer ; on motion of the complainant, the supplemental answer was ordered to be taken off 
 the files. lb. 
 
 VI. Talcing testimony and other intermediate proceedings. 
 
 1. Where the agentor attorney of the complainant e.vamined witnesses, and wrote their depo- 
 sitii-ns, and the conimis.'--ioner before whom they were taken, was absent from the ronm sev- 
 eral limes during the examination, and the defendant did not appear and cross e.xamine the 
 witnesses, the proceedings were held lo be irregular, and the depositions were suppressed.— 
 Burlch,\'s. Hogge, 31. 
 
 2. It seems that Courts of Equity will lake noiice of irregularities, and unfairness in taking de- 
 pi).=;itions, at any stage of the proceedings in the cause, before hearing. lb. 
 
 VII. Reference to a master, report, and proceedings. 
 
 1. The return of a Ma.ster charged with the execution of an order of court, showing the fail- 
 ure of a person to appear and submit to an examination, as required by the order, is suffi- 
 cient foundation for a rule to siiow cause why an attachment should not issue for contempt. 
 Whipple, vs. Broicn, 436. 
 
 '2. The return on tlie summons, or the affidavit of service should show when and how it was 
 served. lb. 
 
 3. When a notice was to appear before V. a master, and the return was by D. a master, that 
 the defendant did not appear, held to be irregular. lb. 
 
 Vni. Decree and execution thereof. 
 
 1. Where there are joint defendants, upon a pro confesso obtained against one, the complain- 
 ant cannot, before the cause is at ii-sue, or in readiness for hearing, against the other, enter h 
 final decree, and issue e.\ecuiion thereon against ihe party agrdnst whom the bill has been ta- 
 ken as confessed, and leave the cause to proceed r.gaiiist the other defendant. Graham, vs. 
 Elmore, 265, 
 
 2. It ii the uniform rule, that a final decree, or an interlocutory decree, which, in a great mea- 
 sure, decides the merits of the cause, cannot be pronounced until all the parties to the bill and 
 all the parties in interest, are before the court. lb. 
 
 3. This court will not adjurige upon a part of the case; it will not make a final decree until the 
 case IS properly presented, in such form as will enable the court to make a final disposition 
 of llie case, and do jusiice to all the panics. lb.
 
 INDEX. 475 
 
 PARTITION. 
 
 f-'ide — JURISDICTION. 
 
 PLKADI.\(i. 
 
 /'I'rfe— AMENDMBNT— AVrrARANCE — A( KNOWLHDO.MKNT— lUSDANn AMI WIFE— .Tl'RlfPICTlOK- 
 LIMITATIONS, STA.TUTK (IF — PRACIirF. 
 
 I. Parliet. 
 
 II. Bill. 
 
 III. Demurrer. 
 
 IV. Plea. 
 
 V. Anticcr. 
 I. Parties. 
 
 1. Wlicre a hill was filf'd by a cestui que trust to setnside a deed of iiBsignmriit as fraudulent, 
 or to enforce Ihc trust, upon demurrer to tlic bill, it was held tliat it was not necessary lo make 
 a company parties defendants, whose rights accrued, prior to the execution ofthedced of as- 
 Kjgnnienl, and were set forth in the instrument of ji.=signmcnt, whicli was recited in the hill ; 
 and that if a sale of the asiiyiied properly should become necessary, it must be sold subject 
 to the rights of the company. Suydam,vs. Dequitidre, 347. 
 
 2. Where several persons were named as creditors in a deed of assignment for the benefit of cre- 
 ditors and a bill was fded byjsoine of the creditors, for whose benefit the assignment was made 
 to set aside the assignment as fraudulent, or enforce tlie trust, and the bill set out the assign- 
 mentand staled that all the debts due to the creditorsjiamed in it, e.£ceptllie complainants, had 
 been paid up and extinguished ; upon demurrer to the bill, it was held that it was not neces- 
 sary to make those persons whose debts werestateil to have been paid and satistied, parties 
 to the bill. lb. 
 
 3. Where a mortgage had been assigned lo S. in trust for several individuals, it was held not 
 necessary to make the cestuis que trust parties, to u bill lllcd lo foreclose it. Sill, vs. Ketch- 
 urn, 423. 
 
 4. G'es/«is juc <rus/ are not necessary parlies, when the only object of the suit is lo reduce 
 the property into possession. lb. 
 
 5. Where the object of the bill is merely to collect money, or reduce it to possession, it is not 
 necessary for an assignee, cither of a bond, note, or cJiose in action, lo make the ccsluis que 
 trust parties, although the rule is otherwise, where the existence or enjoyment ot trust pro- 
 perly is to be affected by the prayer of the hill. Cook, vs. Wheeler, 443. 
 
 6. A bill may be sustained against dilferent persons, relative lo matters of the same nature, in 
 which all of the delendanis were more or less concerned, though not jointly in each act. — 
 H'/ieeUr,rs. Clinton Canal Bank, 449. 
 
 II. Bill. 
 
 1. Where the bill seeks a discovery in aid of proceedings al law, the rule is that the complain-' 
 am must charge in his bill that the facts are known lo the defendant, and ought to be disclos- 
 ed by bim, and (hat the complainunt is unable lo prove ihem by other testimony ; and it must 
 be affirmatively suited in the bill that the facts sought to be discovered are inaterialfor such 
 purpose. Carroll, vs. Farmer's and Mechanic's Bank. 197. 
 
 *2. A creditor's bill must contain the averments required by the ICUth rule, and tliose averments 
 must be sworn lo ill the jurat. Clark, vs. Davis, 227. 
 
 3. A bill may be filed as well to reach mere equitable interests, as in aid of an execution at law; 
 and such a bill is not multifarious. [it. 
 
 III. Demurrer. 
 
 1. A general demurrer, for want of cquiiy, cannot be sustained, u.iless the court is satisfied that 
 no discovery or proof properly called for by, or founde<I on ihe allegations in the hill, can 
 make the subject ^matter of the suit a proper case for eiiiiiiable cognizance. Clark, vs. 
 Davis, 227.
 
 476 INDEX. 
 
 •2. Wliere a new c;iase of dciiiurrer is assigned, ore tenus, llie cause must be'co-extensive witli 
 the demurrer. Ih. 
 
 n. Wliere a denuirrer is to tlie whole discovery and relief prayed by the bill, if llie complain- 
 ant is entitled to any part of the relief, tlie demurrer nuistbe overruled. Thayer, vs. Lane, 
 
 247. 
 
 4. Tlie allegations in a bill, upon demurrer, are taken to be true. Wales, vs. Bank of Miehi- 
 
 f'an, 301. 
 
 IV. Plea. 
 
 1. A plea of a former suit pending in another court for Ihe same action, must set forth the ge- 
 neral character and objects of the former suit, and the relief prayed for. Bank of Michi- 
 gan, vs. Williams, 219. 
 
 2. A defendant may plead to one part of the bill, and answer to another part; but these defen- 
 ces must clearly refer to separate and distinct parts of the bill. Clark, vs. Saginaw City 
 Bank, 240. 
 
 3. 'NVhcn the answer and plea are to the same parts of the bill, the answer overrules the plea, 
 
 lb. 
 
 4. A plea of a staled account must aver the accounts settled nil dealings between the parties, 
 Ihat the account" were jtts/, and/air, and due; and these averments must be supported by 
 an answer to the same effect. Schicarz vs, Wendell, 395. 
 
 5. A plea of a release, unsupported by an answer, is insulficicnt. ]b. 
 
 V. Answer. 
 
 1. Where an allegation is made in the bill with divers circumstances, tlie defendant should 
 not by his answer deny the allegation literally, as laid in the bill, hut should answer llie 
 point of substance positively and certainly. Junes vs. IVing, 301. 
 
 2. Where the complainant alleged in his bill a right to certain shares of partnership property 
 purchased of one of the partners, and the defendant denied his right, and by way of avoid- 
 ance, set up an independ ent contract, to show himself entitled to ono-balf of the shares, the 
 answer was AeW as not coming within the rule of being directly resppnsive to the allega- 
 tions of the bill, and that the new con;ract set out should be proved. Millard as. Ramsdell, 
 
 373. 
 
 3. AVlicre the ans^ver admitted a deed referred to in the bill, and slated no fact which invali- 
 dated it, but denied generallly its validity, it was held to be insutficient ; that it was swearing 
 to a conclusion the deed itself denied, when it should have staled the facts which made the 
 deed invalid, so the court could pass upon them. Payne, vs. Jitcrbury, 414- 
 
 R. 
 
 • RECEIVER. 
 
 P''ide — BANKS — CORPORATIONS— FRAUD. 
 
 1. Where, from the answer itself there is a strong presumption against the defendant's title, 
 which is impeached by the bill, the court will grant a receiver. Payne, vs. Jtterbury, 414. 
 
 2. Nothing can be clearer, both in law] and equity, and from natural justice, than that 
 the complainant is entitled to the rents and profits from the time his title accrued ; and the 
 case is still stronger where there arc large outstanding incumbrances, and no part of the 
 rents and profits is applied to keep down the interest, and the defendant is totally irresponsi- 
 ble, and is holding over against his own deed. In such a case, the complainant is entitled to 
 a receiver. ^*' 
 
 3. A receiver will be appointed in behalf of a vendor, as against a vendee who has obtained 
 
 possession, and refuses to pay the purchase money. lb. 
 
 REGISTRY. 
 
 r'Jie— DEED— MORTQ.VOE. 
 
 1. Where a party claims priority under, or by virtue of the statute, regulating the registry of
 
 INDEX. 477 
 
 deeds and morlgages, lie must sliovv a compliance willi i(s provisions, in order lo enlille liini 
 lo such priority. Tlmmpson vi. Mark, 150. 
 
 2. The acl of April 12, 1?37, enlilled "an act concerning inorlgages," prescribes the manner in 
 • which mortgages may be registered, and being an act e.vpressly in relation to mortgages, and 
 general in iLs leniis, is not controlled in relation to the record of iiiortg.-igcs by the act of the 
 game date, entitled "an act concerning deeds and conveyances ;" and therefore, where a mort- 
 gage was registered according to Uie requirements of the Jirst mentioned acl, it was hold to 
 be a legal and valid registry, and constructive notice under the stiitute to a subsequent mort- 
 gagee or grantee of the same premises. Weed vs. Lyon, 3G3. 
 
 • s. 
 
 STATUTES. 
 
 r»(ie— BANKS — CONSTRUCTION— IXJUNCriO.N—JURlSDIfriON—IJMrrATIONS, STATITE OF— REOIS- 
 
 STRY. 
 
 STATUTE OF FRAUDS. 
 
 FJ<Ze— CONTRACT— DKED—FRArn. 
 
 1. To take the case out of the statute of frauds, ihc terms and conditions of the trust must be in 
 writing under the hand of the party to be charged, ff'rishl vs. King, Vi. 
 
 2. Where, under a parole agreement to convey land, the purchase money has been paid, pos- 
 session taken, and valualilc iiiiprovcinenls made, it was held to be sufficient to take the case 
 out of Ihc statute of frauds. Diirtck vs. Hogge, 31. 
 
 3. Where it appeared that A. [agreed to purchase of U. a certain tract of land, and pay ©150 lor 
 the same ; that, at the time of the agreement, A. paid 15. ®sO ; that U. had surveyed the 
 land, and put A. in possession ; that \. had resided on the land for several years, and made 
 improvements to the value of from ©200 to ©500 •, held that these were such acts of pan 
 performance, as lo take the case out of the statute of frauils, and to authorize a decree for a 
 
 specific performance lo convey, upon payment of the balancs of the purchase money with 
 interest. Bomier vs. Caldicell, OT. 
 
 4. If a party sets up part performance, to take a case out of ihc statute of frauds, he must 
 showacli unequivocally referring to, and resulting from that agreement, such as the party 
 would not have done, unless on account of that very agreement, and with a direct view to its 
 performance ; and the agreement set up must appear to be the same wiili the one partly per- 
 formed ;— there must be no uncertainty or equivocation in the case. McMurtrte vs. Bennettc. 
 
 121. 
 5- It seems now to be held, that the paymenlof the if /lo/c of the purchase money, clearlv in 
 pursuance uf a definite and mutual parole agreement, is sutiicienito take the case out of the 
 statute ; but it has uniformly been held that the payment of a trifling amount of the consider- 
 ation, is in no case of itself sufficient. /j 
 
 SPECIFIC PERF0I5MANCE. 
 
 Vide — CONTRACT. 
 
 STREETS-PUBLIC. 
 
 f/rfc— DETROIT CITY OF— LANDS AND LAND TITLtS. 
 
 TAX SALES A.\U TAX TITLES. 
 
 1. The right lo sell lands for taxes, under the a»t of 1S27, (laws of Michigan, page 377,) i., 
 founded on the fact of the non payment of the tax; and a sale made, after the lax has been 
 paid, is unauthorized, and the treasurer's deed on such sale conveys no esUite or title what- 
 ever. Roicland vs. Doty, •> 
 
 2. The collector's return, tliat the tax has not been paid, is such cvidciue only, of non-payment, 
 a« to justify the treasurer in selling ; and the treasurer's deed on such sale is "conclusive
 
 478 IMDEX. 
 
 evidence' only, ol the lad Ihat llie sale by /ihn was regular, according to tlie provisions ol 
 
 the act. lf>. 
 
 3. A party claiming to liave paid the tax before sale, Is not precluded by llie treasurer's deed 
 
 but may go behind it and show that fact. lb. 
 
 TRUST. 
 
 Vide — DEED — PLEADINO. 
 
 1. To raise a trust by implication, tliere must be an actual payment of money. — Wrigkl, vs. 
 King. 1"^ • 
 
 2. A resulting trust only exists where the actual payment of the purchase money is clearly 
 and distinctly proved. Payment of a part, and not Uie whole, will not raise a resulting trust. 
 — Bernard vs, Bougard. 130. 
 
 3. A., on the24thday of October, 1830, made an absolute assignment of certain real andpei- 
 sonal estate to D., for the purpose of paying his debts, as designated in schedules attached to 
 the deed of assignment, directing the trustee to sell all.llie properly assigned at private or 
 public sale within two years ; and D. having accepted the trust, by signing the deed, but never 
 having taken possession of the property, or sold or disposed of any part thereof, or done any- 
 thing towards carrying Die objects of the trust into execution witlilnthe two years, uprn a bil 
 filed by S. and others, creditors of A., and for whose benefit in part the assignment was made, 
 for the purpose of coercing the application of the property assigned, to the purposes express- 
 ed in the deed of trust,or have the same set aside and vacated ; it was held that the;bill was not 
 prematurely filed, and that the complainants had a right to institute proceedings, In this 
 court, to enforce the execution of the trust, or set aside the deed. It was further held that 
 the deed of trust being absolute in its terms, and the trustee having accepted the trust, the 
 property assigned was dedicated to the purposes of the trust, although the deed was made 
 without the knowledge or concurrence of the cfs/ai que trust. Suydamvs. Dequindre. 347. 
 
 4. Where the conveyance is absolute, vesting the properly in the assignee, no express assent 
 of a cestui que trust is required. Tile relation oi" trustee and cestui que trust is constituted nt 
 once on the e.xecution of the deed, and cannot afterwards be revoked, except upon the ex- 
 press dissent of the cestui que trust. i^- 
 
 5. It makes no diflercnce whether goods are converted into money or not ; trustees are equal- 
 ly responsible to creditors, whose righls to the goods or their proceeds are established ; and, 
 if the proceeds be paid away by the trustees, pendente lite, they are lield responsible; and 
 where there is no allegation that the trustees are insolvent, transient, or irresponsible, or 
 the fund is in a hazardous condition, an Injunction will not be granted or sustained. Thay- 
 er v». Swift, 430. 
 
 V. 
 
 VENDOR AND PURCHASER. 
 
 Vide — DEED — LANDS AND LAND TITLES. 
 
 1. The vendor of real estate has an equitable lien upon the same for purchase money, where 
 there is no security for its payment taken. Carroll vs. Van Rensselaer, 223. 
 
 2. A vendee who has paid the purchase money punctually, has a lien as against the vendor, 
 analogous to that of a vendor against a vendee who has not paid the purchase money. Payne 
 vs. Atttrburij, ^"' 
 
 w. 
 
 WILL. 
 
 1. The provision in a will that the estate shall remain undivided until the youngest of the de- 
 visees becomes ofthe age of twenty-one years, is not such a limitation as will inhibit any 
 one ofthe devisees from conveying his interest in the premises. Walton vs, Torrey, 239 
 
 3. Provisions in restraint of alienation are not to be favored. •'*• 
 
 THE END.
 
 I ",11 » ATA. 
 
 lor ■•iiiiurliiiig," roail "iiicuiiibcriiig." 
 
 " "vurioMl" reuci "vurianl." 
 
 " "prima facia," read "prima facie," iju^sitn, 
 
 " "Rules," road ''Hule's." 
 
 " " Hardicick," read " //ardicicke." 
 
 " "decide^d,'' read "decided." 
 
 of the sUiiemem of the ease, insert •'^UC before •'\va.'<." 
 dele, "at amicis curiae." 
 insert '-married" liefore "women." 
 " "eft'ectiiif,'," read "uffeeting." 
 " "losely," read "loosely."' 
 " "debctojustilice," read "dcbitojiistitiac." 
 
 after "e.<utte" insert "of." 
 " "l.arnard" read "Lamed." 
 
 from holtoni of the jiaye for ".<eiy.iirl',' read ••teisin ' 
 " "<;r.''il or" read "grantor." 
 " "realilv"rea(l "realty." 
 " "efTecfread "afleel." 
 " '•lhe"read "she." 
 
 before "chancery" insert "court of." 
 
 before "court" in.scrt "the." 
 " "perfoni" reail "])erforui." 
 
 before "was" insert "that it." 
 " "therefore" read "iherefor." 
 " "Dccunclier" read "Uecoache." 
 " "a trustee" read "irusiees." 
 " "incohale" read "inchoule." 
 " "turpc" read "turpi." 
 " "-Humps" read " ISumpus." 
 " "where" read "were." 
 
 from tlie bottom of the page, for "assesl" reud "ussets.' 
 " "asscsL" read "assets." 
 •' "M.S. S." read ".=M. S." 
 " "Lam vs. Dwant" read "Lamb vs. Durum." 
 " "intended" read "ccnlended." 
 " "Waki.kr" read"WAi.KEH." 
 " "analagous" read "analogous." 
 
 from bottom of page, for "3Iii.ls" read "Milks " 
 " "establishes" read "establish." 
 " "complainant" read "defendant." 
 
 dele "with" before "leave." 
 " "frauJently" read "tVaudulenlly." 
 
 of statement of the case, for "agreement," rend ''argument." 
 " "injiisiice" read "injustice." 
 
 omit the last line. 
 " "in" read "on" 
 
 " "interleventory," read "interlocutory." 
 " "and when" read "when there are." 
 " "quarc" Tn-M\"ijuacre." 
 " "murlina" read "materia." 
 
 end the sentence at "represented," and insiead of Ihp period aflt?i 
 "purpose" insert a comma. 
 " "slaianiem" read statement." 
 " "bond" read "laud." 
 
 dele "tliat." 
 " "understanding" read " undertaking" 
 " "frivilous" read "frivolous." 
 " " seperate" read " separate." 
 " " Irasl" read " trust." 
 " " princip" read " principal." 
 - 30, for " slaluory" read " statutory." 
 '27, for "irregularity, is" read "irregularities." 
 
 "accept" read " e.xcepl." 
 
 " oiginal" reail " original." 
 
 "or" read "on." 
 
 " inevilallie" read "inevitable." 
 
 "satisfy" read "ratify." 
 
 " case's" read " case." 
 
 " dicta" read " dictum." 
 
 dele the ]>criod after " available." 
 
 in the marginal title, for " Aulberl" read " Uulbert." 
 dele the wiiole of the fourth line. 
 
 "testimoy" read " testimony," 
 
 " argree" read " agree." 
 
 instead of the period after "representations." .nseri n comma 
 
 dele " thai." 
 
 insert "that"' before "from," 
 
 "cestui" read " cesluis." 
 
 " Newooeb" read "Nkwcomb," 
 
 "invidual" read "individual." 
 
 *^* There are doubtless ninny trilling errors not iioln-ed in ilic above li.sii. .\itcniini) ha.^ 
 been, in general, directed only to (he more important ones It is believed that the list emliinca 
 nearly all of these, but some may have escaped notice. 
 
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