1. The grant to a corporation of the right to
erect a toll bridge across a river, without
any restriction as to the right of the legis
lature to grant a similar privilege to others,
does not deprive a future legislature of the
power to authorize the erection of another
toll bridge across the same river so near
the first as to divert a part of the travel
which would have crossed the river on the
first bridge if the last had not been erected.
Mohawk Br. Co. v. Utica & S. R. R. Co.
554

Of the execution of deeds by corporations.
9. Where the president of an incorporated
company affixed the corporate seal to a
mortgage, and signed his name to the same
as such president, and acknowledged the
execution thereof before the proper officer,
testifying that the seal thus affixed was the
common seal of the corporation, and was
affixed thereto by him by authority of the
corporation; Held, that the mortgage was
duly acknowledged and proved to entitle it
to be recorded, or to be read in evidence
without further proof of its execution.
Lovett v. Steam Saw Mill Asso'n,

54

COSTS.

id

5. But where application is made to the
court unnecessarily, within the twenty
days allowed by the rule for applying to
the register or clerk, the party making
such application will not be allowed on
taxation for the extra costs of applying to
the court. Clark v. Bundy,

432

6. Where securities belonging to a very aged
and infirm man were placed by him in the
hands of the defendant for safe keeping,
and to receive the monies thereon as they
were voluntarily paid for the complainant's
use,
and the defendant had been guilty of
no negligence or default except a neglect to
answer a letter of the complainant's solicit.
or, requesting a statement of the fund;
Held, that there was no reason for charging
the defendant with the costs of the suit for
the recovery of the securities in his hands.
Robertson v. Wendell,
320

7. Where a motion to discharge a ne exeat
was granted with costs, but before such
costs were made out the complainants stip.
ulated to dismiss their bill with costs to be
paid to the adverse parties; Held that the
costs upon the motion should be taxed with
the general costs in the cause, and that the
defendant's solicitor was not entitled to the
extra expense of making out and taxing
two separate bills of costs. Sanders v.
Marcelious,
162

8. Where a suit is discontinued before the
putting in and service of an answer, if the
defendant's solicitor on taxation claims an
allowance for drawing and preparing copies
of the answer, he must, in addition to his
affidavit that the draft of the answer was
prepared and copies thereof made before he
had notice of the discontinuance of the suit,
produce such answer before the taxing of
ficer for the inspection of the adverse
party.
id

9. Where one of three non-resident defend-
ants, against whom a bill in partition had
been taken as confessed, and the master's

report upon the title had been obtained,
was permitted to come in and contest the
complainant's right, upon payment of the
costs of the proceedings, to take the bill as
confessed against him and of the subse-
quent costs of the complainant consequent
upon the order to take the bill as confess-
ed; Held, that the absentees were not in
default until the expiration of the time
limited in the order for publication, and
that the costs of the proceedings to take
the bill as confessed against such defend-
ant to which the complainant was entitled,
commenced with the affidavit of the de-
fendant's default to appear and answer
within the time thus limited; that the de-
fendant, who was permitted to come in
and defend, was only chargeable with one
third of the costs of proceedings which
remained good against the two other ab.
sentees; but that he was chargeable with
the whole costs of the reference as to title,
as the complainant must proceed de novo
before the master if this defendant did not
succeed in his defence. Christy v. Chris-
ty,
170

See APPEAL, 12. EXCEPTIONS, 7. EXECU
TORS, &c. 15, 16, 17. RECEIVER, 2. So-
LICITOR AND COUNSEL, 1. SURROGATES,
6. COSTS, 11.

COSTS, II.

What charges are taxable.

10. The allowance in the fee bill for drawing
instructions for the examination of a wit-
ness, is not applicable to the case of a wit.
ness examined before the master on a refer.
ence. Christy v. Christy,
170

11. A counsel fee is not taxable for arguing
or attending to argue before the master
upon an ex parte reference, on a bill taken
as confessed, where the adverse party has
not appeared in the cause and is not sum-
moned to attend on the reference. To au-
thorize such on allowance to counsel there
must either be an actual argument with the
adverse party, on the reference, or the
counsel must have attended, pursuant to
notice, under the expectation that such an
argument was to take place before the

master.

id

12. Where a complainant is examined as a
witness in his own favor, in a proceeding
against an absentee, he is not entitled to
charge for the expense of subpœning him.
self to attend before the master on the
reference, or for his fees as a witness. id.

13. The solicitor of the guardian ad litem of
an infant is not entitled to charge for a copy

Assignments for the benefit of creditors,
and allowance of interest to creditors.

1. An assignment in trust for creditors, al-
though voidable as against the creditors of
the assignor who think proper to disaffirm
it, is valid as between the parties to such
assignment, and in favor of those credit.
ors who think proper to affirm it and to
insist upon their rights as against the as-
signee. As to such creditors the assignee
is estopped from denying the validity of
the assignment except so far as it has been
impeached or disaffirmed by other credit-
ors of the assignor; and he must account
for the assigned property accordingly, al-
though he has surrendered up the assign-
ment and taken a new one upon different
trusts. Mills v. Argall,
577

2. But where a voidable assignment is sur-
rendered up to the assignor, and a new

one taken upon trusts which are valid, a
creditor who does not claim under the
first assignment, and who has not acquir.
ed a legal or equitable lien upon the trust
property or a right of preference previous
to the execution of the last assignment,
cannot impeach the second assignment on
account of any illegality in the first. id

3. The rules established under the English

bankrupt laws, that interest is not allow-
able after the date of the commission, and
that no interest can be allowed except
where it is given by the express terms of
the contract, are not applicable to the case
of an assignment for the benefit of credit-
ors under the insolvent laws of this state.
Matter of Murray,
204

4. In making the distribution of the effects
of the insolvent debtor or company among
the several creditors, under the insolvent
laws, debts on which interest is recovera-
ble by way of damages, and those upon
which interest is payable by the terms of
the contract, should be placed upon the

upon the French government, when the
same should be received; and the senior
partner afterwards died, having made R.,
one of the creditors, executor, who after.
wards recovered a part of the claims upon
the French government; Held, that the
covenant was in equity a specific appro-
priation of the fund for the payment of the
balance due to the creditors who executed
the release to the two junior partners,
which entitled them to a preference in
payment out of that fund as against the
general creditors of the decedent; and
that the executor could, therefore, only
have his rateable proportion of the fund
with others who executed the release, but
could not retain for his whole debt. Ho-
sack v. Rogers,

415

See CORPORATION, 3, 4, 5, 6, 7, 8. DEed, 6.
PARTNERSHIP, 2, 3, 4, 5, 6.

DEBTOR AND CREDITOR, III.

bond.

id

And

5. In making distribution of the estate of the
insolvent among his creditors, the interest
on all debts upon which interest is recov-
erable should be computed up to the time
of the assignment, and the interest should
be discounted on such of the debts not then
due as are not on interest, and the divi-
dend should then be declared on the sev-
eral amounts as thus ascertained.
where the whole amount is not paid at
the date of the assignment, if assets after-
wards come to the hands of the assignee
more than sufficient to pay the several
amounts as thus ascertained, interest
should be computed on such amounts from
the date of the assignment, so as to give
each creditor a rateable proportion of the
fund towards the interest of his debt.

7. Upon a money bond given by a principal
debtor, the obligor is both legally and
equitably liable for the whole amount of
the principal and interest secured by the
condition of the bond, although such
amount exceeds the penalty of the bond.
Mower v. Kip,

See PRINCIPAL AND SURETY, 2, 3, 4, 6.

DEED.

88

I. Construction, validity, consideration and
delivery.

II. Execution, proof, acknowledgment and
recording; lien for unpaid purchase
money.
Voluntary deeds.

DEBTOR AND CREDITOR, II.
Of preferences between creditors, and of
specific appropriations of funds, &c.
6. Where a firm consisting of three persons
became insolvent and made an assign-
ment of the copartnership property for the
payment of its creditors; and the senior
partner covenanted that he would pay to
such of the creditors as should release the
two junior partners the full amount of their
debts if the assigned property was not suf
ficient, out of the proceeds of his claims

DEED, I.

Construction, validity, consideration and
delivery.

1. Where the intent of the grantor to pass
lands by a written conveyance is appar-
ent, if for any reason the deed or instru-
'ment cannot operate in the way contem-
plated by the parties thereto, the court
will if possible give it effect in some other
way. A conveyance of a future estate by
lease and release, which cannot operate as

2. In order to make a valid conveyance of
land under the statute of uses, it is suffi
cient if any good consideration appears
upon the face of the deed which will legal-
ly raise the use in favor of the grantee.
And if the real consideration of the con-
veyance was neither corrupt nor illegal,
the grantor and those claiming under him
are estopped from denying the payment of

conveyed the land and took a bond and
mortgage on such second sale, for a much
larger amount than was due to him for the
unpaid purchase money on the first sale,
which mortgage and conveyance were re-
corded before the recording of the deed to
the original purchaser, and the bond and
mortgage were afterwards assigned to a
person who was informed of the facts upon
which the equitable rights of the parties
depended; it was held, that the assignee
of the mortgage was only entitled to pre-
ference in payment out of the proceeds of
the land over a judgment creditor of the
original vendee, to the extent of the unpaid
purchase money on the first sale with in-
terest thereon. Arnold v. Patrick,

310

is necessary to give effect to the deed. id

3. Where a person who had contracted for
the purchase of land, obtained a deed of the
same, from the vendor, under an agreement
that it should not be used until the balance
of the purchase money then due was paid;
Held, that this was a valid delivery of the
deed to pass the legal title to the land to
the vendee, subject to the vendor's equita-
ble lien for the unpaid purchase money;
and that such unpaid purchase money must
be paid in preference to a judgment against
the vendee, which was a lien upon his es-
tate in the land. Arnold v. Patrick, 310

4. A deed of land, or other sealed instrument,
cannot be delivered to the grantee or obli-
gee himself as an escrow, to take effect
upon the performance of a condition which
is not expressed in the deed or instrument;
and if so delivered the deed or instrument
becomes absolute at law.

See INFANTS, 4. MORTGAGE, 3. 7.

DEED, II.

id

executed previous to the passing of the
statute, to be recorded within a limited pe-
riod, and declaring them, if not so recorded,
to be invalid as to subsequent bona fide
purchasers, is binding upon the grantees of
such deeds as were in existence and in a
situation to be recorded subsequent to the
passing of the act and within the time pre-
scribed. Varick v. Briggs,

323