In Chancery-Hudson v. Plets.

of the infants. In this case the application | The right to an action for an injury to the property

is made on behalf of the defendants, Asprey,
G., and Weller, who are the three account-
ing parties in the suit. There are no facts
in litigation between the sister and her
brother the infant. The only question in
the cause is a question of construction, and
that of so difficult a nature, that the three
eminent counsel who were consulted
upon

it differed in opinion from each other; and
in consequence of that difference, the bill
was filed, in order to obtain the opinion of
the court upon the meaning of the will.
Therefore, there cannot be the slightest
danger of any facts being kept back, which,
if brought forward, might influence the
decision of the Court either one way or
the other.
I do not see that there
is any reasonable probability that the suit
will be mismanaged if it remains as it now
is." The motion was refused, with costs.

***

IN CHANCERY.

Before the Hon. REUBEN H. WALWORTH,

Chancellor of the State of New York.

of a judgment debtor, whereby the property to which the creditor was entitled to resort for the payment of his debt, is destroyed or diminished in value, may be reached under a creditor's bill; but the right of action of a judgment debtor, for a mere tort, cannot be so reached by a creditor's suit, nor does it pass under the debtor's assignment.

THIS was an application by the complainant for an attachment against the defendant in a judgment creditor's bill for an alleged violation of the usual injunction granted in such cases, and also for refusing tion of the injunction complained of was the bringing an action of trespass against a third person for a trespass upon lands which belonged to the judgment debtor before the filing of the bill in this cause, and for bringfor tort in seizing property of the judgment ing another suit against the same person debtor which was exempt from execution; and the refusal of the defendant to be sworn took place under the following circumstances: The complainant's bill was filed in December, 1842, and in January there

to be sworn before the master. The viola

EPHRAIM H. HUDSON V. PETER PLETS. after, the usual order of reference to appoint

August 27, 1844.

a receiver, and for the defendant to assign and deliver over his property on oath under A DEFENDANT CANNOT BE EXAMINED IN A the direction of the master, was entered. CREDITOR'S SUIT AFTER EVIDENCE CLOSED A receiver was duly appointed, and in Feb—WHEN EVIDENCE CONSIDERED CLOSED-ruary, 1843, the defendant made the usual ORDER FOR FURTHER EXAMINATION WHEN assignment of his property to the receiver NECESSARY RIGHT OF ACTION FOR PERSONAL TORTS CANNOT BE REACHED BY CREDITOR'S BILL-RIGHT OF ACTION FOR INJURY TO DEBTOR'S PROPERTY WHEN

REACHED.

to the matters of reference.

under the direction of the master, and was examined before the master as to his property, upon oath as directed by the order of reference; and the receiver took possession of the property which upon such exIn a creditor's suit, after the examination is closed, amination appeared to belong to the dethe master has no power or authority to summon fendant, and the same was sold at public the defendant before him and swear him again as auction by the receiver and purchased by When the defendant attends before the master, and the complainant, on the 1st of May, 1843. is examined, if the reference is not adjourned to In September, 1843, the master, who had some specific time, or the right reserved to the been superseded in his office by the qualicomplainant to have a further examination within fication of a successor, in the preceding some reasonable time, to be prescribed by the master, and upon a further summons, the exami- April, issued a new summons to the denation of the defendant will be considered closed. fendant to appear before him and be examAnd where the examination is closed, if the com- ined in relation to his property. The deplainant wishes for a further examination, he fendant attended before the master and must apply to the court, upon a proper case, declined to be examined as to the matters supported by affidavits, for an order authorizing of the complainant's bill, or as to the proIt is the duty of the master, where the defendant perty assigned and which had been sold by attends to be examined, to proceed with reason-the receiver. But the master decided he able dispatch; he is not authorized to keep the must be sworn as to the matters of the reference open interminably, to enable the complainant to harrass the defendant; nor should he adjourn an examination, or reserve the right to the complainant to summon a defendant a second time before him without some reasonable grounds.

same.

reference generally.

O. L. Barbour, for the complainant.
W. L. F. Warren, for the defendant.

In Chancery-Hudson v. Plets.

THE CHANCELLOR.-The defendant was | bill or as to the property which the defendright in supposing that the master had no ant is required to assign and deliver over to power or authority to summon him before the receiver. And the master should not him and swear him again as to the matters adjourn the examination or reserve the of the reference. The object of the exami- right to the complainant to summon the nation of the defendant upon the usual or- defendant a second time before the master der to appoint a receiver, &c., and where without some reasonable grounds. Where the examination is not intended as a sub- the defendant attends before the master stitute for an answer to the complainant's and is examined, if the reference is not bill, is to enable the master to determine adjourned to some specified time, or the and direct what property is to be delivered right reserved to the complainant to have over to the receiver. After the notes and a further examination within some reasonother choses in action in this case, therefore, able time to be prescribed by the master, had been delivered over to the receiver, and upon a further summons, the examinaand had been sold by him, the defendant tion will be considered as closed, and the was not bound to answer any question in master's power under the order of reference relation to such notes or other choses in as spent. After that, if the complainant action, even if the original examination wishes a further examination, or desires before the master had been adjourned by directions as to the delivery of property the master and had not been closed; and subsequently discovered, he must apply to the defendant having been once sworn the court, upon proper affidavits and notice generally upon the reference, the master to the adverse party, for an order authorihad no right to require him to be sworn a zing or directing the same. So much of second time. But if a further examination this application therefore as seeks for an was necessary or proper for any purpose, attachment against the defendant for refuthe complainant's solicitor should have sing to be sworn in September, 1843, must propounded his questions as upon the ori-be denied. And as the defendant denies ginal examination, without a new oath. the existence of any property whatever, And if the master decided that the ques-except that which he had fully disclosed tions were proper, and had not been fully before the master on his former examinaanswered, the court would compel an answer to them, unless upon examination it appeared the decision of the master was wrong. The defendant was therefore right in this case in refusing to be sworn generally a second time.

tion, and which was delivered to the receiver, so far as it was capable of delivery, there is no ground for making a special order authorizing a further examination of the defendant.

The mere right of action of the judgment Again; it is evident in this case, that debtor for a personal tort, as for assault and the examination of the defendant under battery, slander, or a malicious prosecution, this order of reference had been once closed; cannot be reached by the complainant in a and that the master had no authority under judgment creditor's suit; nor will it pass such order to issue a new summons for the to the receiver under the usual assignment purpose of compelling the defendant to of the defendant in such a suit, (Benson v. attend before him to submit to a new ex- Flower, Sir W. Jones' Rep. 215, 1 Deac. amination, without a special order of the Bank. Law 386.) But the right to an accourt for that purpose. In these referen- tion for an injury to the property of the ces under creditor's bills, the master is not judgment debtor before the filing of the authorized to keep the reference open in-complainant's bill, whereby that property terminably to enable the complainant to to which the creditor was entitled to resort harrass the defendant with attendances and re-examinations as often as the complainant thinks proper. But when the defendant is summoned to attend for the purpose of being examined and delivering over his property, the complainant should be compelled to proceed with all reasonable expedition to complete his examination of the defendant, either in answer to the matters of the

for the payment of his debt is destroyed or diminished in value, appears to be such a thing in action as may properly be reached and applied to the payment of the complainant's debt under a creditor's bill. The bringing a suit for such a tort, however, without shewing some injury which the complainant in the creditor's bill has sustained thereby, is not such a breach of the

1

In Chancery.-Warren v. Sprague-Harder v. Harder.

J. M. Martin, for the appellant.
F. H. Rodman, for respondent.

injunction as will authorize the granting of an attachment against the judgment debtor. The case would be otherwise if he had recovered a judgment and collected THE CHANCELLOR.-The only error in the amount thereof, or had released the the order appealed from is that the appliright of action for the trespass. The suit cation to take the bills off the files was not against a third person for the tort in taking denied with costs, instead of requiring the property which was exempt from execu- complainant to appear by a new solicitor, tion, does not appear to be a breach of the and to pay the costs of the defendant upon injunction, even if the right of action in the motion. But that was an error in favor such case accrued before the filing of the of the appellant, and of which he has of complainant's bill, if the right had not been course no right to complain by appeal. reduced to a mere debt by the recovery of The rule which prohibits a receiver from a judgment for the tort previous to that employing the solicitor for either of the time. For the exemption of certain ne- parties to the suit in which he is appointed cessary articles from execution would be a receiver, is intended to protect the rights useless if the creditor could seize them on of those parties. And if they have no obhis execution, and when a suit was brought | jection, the receiver may employ the soliagainst him or the sheriff for damages, citor of either to aid him in the discharge could reach such claim, and deprive the of his trust. A mere stranger to that suit, debtor of it by means of a creditor's bill. therefore, has no right to object that the The recovery of a judgment for the tort to receiver has employed the solicitor of one the defendant's exempt property, and even of the parties in the original suit to instithe collection of the amount of such judg-tute a new suit against such stranger. The ment, will be no breach of the injunction proceedings of the complainant in filing in this case. The residue of the complainant's application is therefore denied with costs; as there had been no breach of the injunction of which the defendant has any right to complain.

this bill, were therefore strictly regular, so far as regards the defendant therein; and he had no right to raise the objection that the solicitor employed by the receiver to file the bill against him was a solicitor for the complainant in the suit in which the receiver was appointed.

WHEN RECEIVER MAY EMPLOY SOLICITOR OF Before the Hon. LEWIS H. SANDFORD, Assistant Vice Chancellor of the First Circuit.

EITHER OF THE PARTIES.

Where a receiver, in discharge of his trust, com

March 22, 1844.

menced a suit against A. B., and employed the HARDER V. HARDER.-Albany, Jan. 11— solicitor of one of the parties to the original suit. Held that A. B., being a stranger to the original suit, had no right to object thereto.

THIS was an appeal from the decision of the Vice Chancellor of the First Circuit, denying the defendant's application to take the complainant's bill off the files of the court, and allowing the complainant to substitute a new solicitor to prosecute their suit. The bill was filed by the receiver, who had been appointed in a creditor's suit between O. Ames as complainant, and G. Witherel and H. St. John as defendants: and the only ground of objection to the bill in the present suit was that it was prosecuted by the same solicitor who appeared for the complainant in the original suit in which the receiver was appointed.

RESULTING TRUST-SPECIFIC PERFORMANCE.

The intestate, in 1802, bought a farm, which was conveyed to him in fee, and on which he lived until his death in 1835. When he bought the farm he was over sixty years of age, and was worth little or nothing. He had three sons, who were then of full age; and they, with a fourth son, Richard, who was younger, resided on the premises until his death. The farm was paid for out of the labor and earnings of the four sons. About twenty-five years before his death; the intestate conveyed a small parcel of the farm to each of the three sons first mentioned, and another parcel to a fifth son, John, who had been brought up in the family, and learned a trade. The family also aided this fifth son in building his house and shop. The intestate had five daughters, who were brought up in his family, and married off from time to time. In 1820, he

In Chancery-Harder v. Harder.

The complainants Michael, Robert and Peter, in March, 1811, purchased from Duncan the farm so recovered, and took a Peter subseconveyance of it to Peter. quently conveyed an undivided third part to Robert, and another to Michael. 1820, John M., the father, conveyed to the complainant Richard, who was his youngest son, the portion of the Roseloom farm not recovered by Duncan.

In

conveyed ten acres of land, being no part of this ejectment suit against John M. The case farm, to Richard. In 1831, he had the farm is reported in 4 Johns. R. 202. (excepting John's parcel) surveyed, and marked off and divided in severalty between the three sons first named, declaring that each should have the part so allotted to him. They took possession immediately, according to their respective allotments. About the same time, he declared that Richard was to convey the ten acres to the other three sons, and then was to have another farm of forty acres, which the intestate owned in an adjoining town. Richard conveyed the ten acres accordingly, went into possession of the forty acres, and laid out his wife's property in permanent improvements upon the same. The father, in 1831, made a will, devising the farm first mentioned, to the three sons, according to the survey, and the forty acres to Richard. This will was not to be found after the death of the "father. John and the husbands of two of the

to bind the testator and his heirs. 3. That in

The legal title to the residue of the Irish farm remained in John M. Harder till his death in 1835.

To return to the year 1802. John M., the father, was then over sixty years of age. Michael was his eldest son, and was

intestate's daughters, having brought ejectment for these farms, and for other lands, it was HELD, 1. That the payment for the first farm by the sons, raised a resulting trust in their favor, and a married man. Robert was then about that they were entitled to it in equity. 2. That twenty-seven years old, and Peter was of the agreement between the intestate and Richard, full age. These three, who were called although not in writing, was so far performed as "the boys" till they were sixty or seventy respect of the other lands included in the eject-years old, continued to reside with their ment, the complainants, having a legal title father on these farms, though some of the thereto, had no occasion to invoke the aid of this time in different houses, until his death. court, and as to such lands, the bill should be The other complainant, Richard, was a boy in 1802. He also lived with his father, THIS was a bill to restrain certain ac- until shortly before the latter died. The tions of ejectment brought to recover lands defendant, John J., was brought up a blacknear the city of Hudson, and to have the smith. He says in his answer, that he complainant's title thereto declared and commenced business in 1804. "The boys" established. The facts appear in the opin-assisted him in erecting his buildings on the portion of the Irish farm conveyed to

dismissed.

ion of the court.

J. Gaul, Jr., for complainants.
K. Miller, for defendants.

him.

He

became old enough to labor. Witnesses
who had known him from the time of the
purchase of the Irish farm, say that he
never worked a day. The Roseloom farm
was never cultivated much until after it
was bought anew from Duncan.
boys" worked the farms and fished in the
Hudson river. They made a great part of
their money by fishing.

Besides the five sons, John M. Harder had five daughters, who were brought up in his family, and married off with such THE ASSISTANT VICE CHANCELLOR:- portions as he deemed reasonable. The leading facts in this case, as estab-never worked any himself after his sons lished by the testimony, are these: In 1802, John M. Harder, the father of the complainants, of John J. Harder, and his two sisters who are defendants, was in the possession of a farm near Hudson, called the Roseloom farm, claiming it as owner. He was also the owner, by inheritance, of forty acres in Claverack. In that year he bought another farm near the Roseloom property, called the Irish farm, and received a conveyance of it in fee subject to a mortgage. Within a few years after, John M. conveyed small parcels of this farm to the complainants Michael, Robert and Peter, and to John J., respectively.

In May, 1809, one Duncan recovered the Roseloom farm, except a small portion containing about ten acres, in a contested

"The

John M. told one witness that when he bought the Irish farm, he had not five dollars in the world. Having no title to the Roseloom farm, this was literally true, if he owned the value of the small farm in Claverack. And there is no room to doubt that at the close of the Duncan law suit, he was not worth any thing. Witnesses who had good opportunities for knowing,

In Chancery-Harder v. Harder.

testify that the Irish farm was paid for by "the boys;" amongst others their sister, Mrs. Son, who was the eldest of the family. The father himself declared this, time and again, during his life. His two daughters, who are defendants, have made the same assertion, and disclaimed an interest in the property. (Their statements are not inadmissible, because they are married. If they had answered, making the same admissions, the court would have made a decree upon their admisions.)

The family appear to have lived in common, until after they were successively portioned off and established in life. The four complainants continued in common, until three of them became old men.

As to John J. Harder, he did the blacksmithing for the farms and the family for many years. On the other hand, he helped himself to grain and provisions from the farm, and was aided in various modes by the labor of "the boys" and their teams. Probably no charge was intended on either side. His father declared repeatedly, that John J. had received his part of the property; and he also stated that John J. had not helped to pay for the property. The proceeds of the Claverack farm went into the common stock. It does not appear that they were of much account. They were probably much less than went to the support and fitting out of the members of the family other than the complainants.

the share of Peter and the small parcel already conveyed to Robert. He also directed a will to be prepared, and executed it, devising the title accordingly; and at the same time giving the Claverack farm to Richard. He subsequently had a similar will drawn and executed, giving the latter to trustees for Richard and his family, in case he became incapable of managing it. In 1831, he declared that Richard was to convey his piece on the Roseloom farm to the other boys, and then was to have the Claverack farm. He afterwards said that Richard's wife's property was laid out on that farm, and by other proof it appears to have been laid out in building a barn and repairing the house. On the 19th May, 1832, Richard conveyed that part of the Roseloom farm to the other three complainants.

After John M. Harder's death, a great part of the family came together to have the will read, and it could not be found. Those present assented to take the statement of Mr. Rowley, who drew the will, and abide by his declaration of its contents. An instrument under seal to that effect, was drawn up, and was signed at various times by all of the heirs except John J. Harder. Mr. Race signed it on condition that all should execute. Vosburgh and wife signed unconditionally, but on his getting possession of the paper two days after, he struck out the names of himself and his wife. Neither of the feme coverts who are now defendants, acknowledged its execution before any officer.

Mr. Rowley made a written statement of the contents of the will, conformably to the sealed agreement; and showing the devises before mentioned.

In 1840, the defendants commenced actions of ejectment to recover the Roseloom, Claverack and Irish farms.

My conclusion upon the testimony is clear that the Irish farm was paid for by the labor and resources of the three eldest complainants. That Richard aided in some degree; and that he bore his full share with the others, in the payment of the Roseloom farm; so that as between the complainants themselves, he is entitled to participate in whatever rights they may have in the aggregate property in controversy. To resume the history of the case. When John M. Harder had become ninety years old, the complainants began to feel uneasy about the title to the residue of the Irish farm remaining in him, and requested him to convey to them; and it seems that he determined not to part with the control of it while he lived. But in 1831, he procured This objection, if it were well founded, a surveyor to mark out and divide the farm is not available, because it is not insisted (about 82 acres) between Michael, Robert on in the answer.

Before proceeding to the main questions, I will dispose of the minor points which were raised by the defendants;

1. As to the misjoinder of complainants; Richard Harder claiming the Claverack farm in severally, and setting up no interest in the other property.

and Peter, equally, which was done accord- 2. The answer claims the same benefit ingly, and stakes put down showing their as from a demurrer, to that part of the bill respective bounds. This division included setting up the complainant's title to the