686

previously conveyed, unless he had notice
of the previous conveyance at the time of
id
the execution of such release.

13. Where a mortgagor assigned all his
property, including his equity of redemp-
tion in the mortgaged premises, to the
mortgagee and another person as trustees
for the benefit of creditors; Held, that the
proper way for the mortgagee to enforce
his specific lien upon the mortgaged prem-
ises was by a bill of foreclosure, and that
his co-trustee was a necessary party to
such bill; and that the wife of the mortga-
gor having joined in the mortgage, the
husband and wife were proper parties to
the suit for the purpose of extinguishing
her contingent right of dower in the mort.
gaged premises. Paton v. Murray,

474

20. It is improper to detail the proceedings at
length in an affidavit of regularity. The
affidavit should merely state that the bill
had been taken as confessed upon a per-
sonal service of the subpoena, or on a vol-
untary appearance of the defendant, or up-
on a proceeding against him as an absen-
tee, as the case may be, and that all the
proceedings to take the bill as confessed
are regular; except in special cases, where
the solicitor wishes to submit the question
of regularity to the court. Nott v. Hill, 9

See ABSENT DEFENDANT, 5. HUSBAND AND
WIFE, 15. INSURANCE, 1, 3. PLEADINGS,
11. PRACTICE, 18, 19. SET-OFF, 1, 2.

N

NE EXEAT REPUBLICA.

1. The sheriff is answerable for the sufficien-
cy of the suretics which he takes upon a
writ of ne exeat. But where he has taken
bail upon the writ, if the defendant leaves
the state, the court will allow the sheriff a
reasonable time to produce the defendant;
or, in case he cannot be produced, will al-
low a reasonable time to the sheriff' to pros
ecute the bond and to recover the amount
which the sheriff is ordered to pay. Bray-
489
ton v. Smith,

2.

Where the defendant in a ne exeat can-
not procure such security as will satisfy
the sheriff, or if he wishes to leave the state
before the termination of the suit, his prop-
er course is to apply to the court to dis-
charge the writ of ne exeat, upon his giving
sufficient security to answer the complain.
ant's bill and to render himself amenable
to the process of the court during the pro-
gress of the suit, and such as may be issu-
ed to compel the performance of the final
decree. And upon such application, the

court will take such security as it may
deem sufficient, and will discharge the
sheriff from liability.
id

See PRINCIPAL AND SURETY, 5.

NEW-YORK, CITY OF.

The purchaser of lots in the city of New-
York bounded upon one of the public
streets, as laid down upon the commission-
ers' map and plan of the city, is not liable
to be assessed for the purpose of compen-
sating the vendor for the lands afterwards
taken by the corporation for the purpose of
opening such street. But he must insist
upon his right of exemption from assess-
ment for that purpose before the commis-
sioners of estimate and assessment, and if
they improperly decide against him he
must oppose the confirmation of their re-
port by the supreme court. Murray v.
Graham,
622

See JURISDICTION OF CHANCERY, 4, 5.

NON-RESIDENT DEFENDANTS.
See ABSENT DEFENDANTS, 1, 2, 3, 4, 5, 6.

NOTICE.

See VENDOR AND PURCHASER, 1, 2, 3, 4.

PARTITION.

In deciding whether a sale is necessary in a
partition suit, the true question for the
consideration of the master is whether the
aggregate value of the several parcels into
which the whole premises must be divided
will, when distributed among the different
parties in severalty, be materially less than
the value of the same property if owned
by one person. Clason v. Clason, 541
See ABSENT DEFENDANT, 6. GUARDIAN AND
WARD, 2, 3. PLEADINGS, 2, 3, 20, 22, 24.
PRACTICE, 13. REVIVOR, 1, 2.

See SHERIFF, 3, 4.

P
PARTIES.

In the court of chancery the assignee of a
chose in action is not permitted to sue in
the name of the assignor; but the suit must
be brought in the name of the real party in
interest. Rogers v. Traders' Ins. Co. 583

See HEIRS AND DEVISEES, 3. INSURANCE, 3.
MORTGAGE, 5, 13, 14, 15, 16, 17. SPECIFIC
PERFORMANCE, 8.

copartnership is authorized to make an as-
signment of all the partnership effects to a
trustee, for the payment of debts rateably,
without the consent of the special partner?
Quare.

id

5. Where, upon the death of one of the mem-
bers of an insolvent firm, the surviving co-
partner, who was solvent, was obliged to
pay the debts of the firm out of his own
property, and the separate estate of the de-
cedent was insufficient for the payment of
all his debts; Held, that the balance due
from the estate of the decedent to the sur-
viving copartner, on account of the part-
nership transactions, must be paid rateably
with the other debts of the decedent of the
same class, according to the provisions of
the revised statutes. Payne v. Matthews, 19

6. If the persons comprising a copartnership
firm are insolvent, the joint creditors of the
firm are entitled to payment out of the
partnership property and effects in prefer-
ence to the separate creditors of the indi-
vidual copartners; and in case of the death
or bankruptcy of one of the members of
the firm, so that his separate estate cannot
be reached at law for the satisfaction of
partnership debts, his separate creditors
have a corresponding right to priority in
payment out of such separate estate.

See ALIENS, 1. HUSBAND AND WIFE, 15.

PLEA.

See PLEADINGS.

PLEADINGS.

id

Bill; amended bill; bill for partition;
cross bill; creditor's bill; bill of discov-
ery; what renders bill multifarious.

1. Where a complainant amends his bill by
inserting an allegation that it is filed in be-
half of himself and all others standing in
the same situation, a third person as to
whom the right to sue was barred at the
time of such amendment so that he could
not have filed a bill himself, cannot come
in and claim relief against the defendant |
upon the decree made upon such amended
bill. Cunningham v. Pell,
655

2. As it is the duty of the complainant in a
partition suit to state in his bill the rights
and interests of all the parties in the prem-
ises, so far as they are known to him, ac-
cording to his information and belief, if the
rights of the defendants, as between them-
selves, depend upon the validity of a will
under which an undivided part of the prem-
ises are claimed, or where the ownership
of an undivided share of the premises is
contingent or doubtful and depends upon

the construction of such will, it is proper
for the complainant to state in his bill the
fact of the making of the will and the sub-
stance thereof so far as is necessary to ena-
ble the court to understand the rights of
the parties. Van Cortland v. Beekman, 492

3. But where the defendant in a partition suit,
in addition to the defence of the suit and a
dismissal of the complainant's bill for par
tition, wishes for affirmative relief on his
part, by a decree for a transfer to him of
the legal title to that part of the premises
which is vested in the complainant, he must
file a cross bill, and must also set up the
same matter in his answer as a defence to
the original bill of the complainant. Ger-
man v. Machin,
288

4. Where an execution against the property
of the defendant in a judgment has been
issued to the proper county, and has been
returned unsatisfied, the plaintiff may file
a creditor's bill, founded thereon, although
he has subsequently issued a second exe-
cution to another county, which execu-
tion has not yet been returned by the
sheriff, if such execution has not been levi-
ed upon property belonging to the defend-
ant sufficient to satisfy the amount due.
Cuyler v. Moreland,

273

5. Where the right to file a creditor's bill once
exists, by the return of an execution unsat
isfied, if the defendant has property which
is the proper subject of a sale on execution,
but which has been fraudulently assigned
or incumbered, and has other property
which can only be reached by a bill in equi.
ty, the plaintiff in the judgment may take
out a second execution for the purpose of
obtaining a specific lien upon the property
which is a proper subject of sale on execu-
tion, and may then file his bill in chancery
for the double purpose of removing the
fraudulent obstruction to his second execu-
tion at law, and of having both species of
the defendant's property applied to satisfy
the judgment debt.

id

8. Where four persons became joint sureties
in the official bond of a county treasurer,
who afterwards misapplied the funds of
the county and died insolvent, and a judg
ment was thereupon recovered against the
four sureties in the bond, jointly, and three
of them afterwards paid the whole amount
of the debt and costs, and an execution was
issued upon the judgment for their benefit,
on which the sheriff was directed to levy|
one fourth of the amount of the judgment
of the property of their co-surety, which
execution was subsequently returned un-
satisfied; Held that the three sureties who
had paid the whole debt and costs, could
file a creditor's bill in their own names
against their co-surety to obtain satisfac-
tion of his rateable proportion of the judg
ment, out of his equitable interest and
choses in action which could not be reach-
ed by the execution at law. Cuyler v. Ens-
worth,
32

9. Where the complainant makes an officer
of a corporation a party defendant for the
purpose of obtaining a discovery as against
the corporation, no relief either general or
special should be prayed against such offi-
cer. And the prayer of the bill should be
80 framed as to show distinctly that the re-
lief sought is intended to be confined to the
corporation, and that no relief whatever is
to be asked as to the officer of the corpora-
tion, at the hearing, even as to costs. Mc-
Intyre v. Trustees of Union College, 239

10. If the bill contains no prayer for either
specific or general relief, it is considered as
a bill of discovery merely, although the
word decree is erroneously inserted in the
prayer for process of subpoena. But if the
bill prays any relief whatever against a de-
fendant who is made a party for the pur-
pose of discovery only, such prayer makes
it a bill for relief as well as discovery as to
such defendant, and authorises him to put
in an answer containing a full defence." id

11. Where S. assumed the payment of E's
debt to an incorporated company and con-
veyed lands by absolute deed, to one of the
officers of the company, but the conveyance
was only intended as a mortgage to secure
the payment of the debt to the company,
and the land was afterwards conveyed by
the grantee to another officer of the com-
pany, who knew the object for which the
VOL. VI.

87

first conveyance was made; Held, that the
claim of S. against the personal represen-
tatives of E., to be re-paid the debt thus as-
sumed, was separate and distinct from his
claim against the holder of the legal title
to the land, and the company, to redeem
the mortgage; and that the joinder of both
claims in one suit rendered the complain-
ant's bill multifarious. It would have been
otherwise if E. had agreed to pay the debt
to the company, or indemnify S. against
liability on the mortgage. Swift v. Eck-
ford,

22

See HEIRS AND DEVISEES, 2, 3. INFANTS, 2.
MORTGAGE, 18. PRINCIPAL AND SURETY,
6. WATER, 2.

PLEADINGS, II.

Demurrer.

12. If the admission or discovery of a fact,
stated in the bill or called for by the inter-
rogatories, cannot aid the complainant in
his suit, or in obtaining the relief he claims,
or to which he may be entitled either in
the court of chancery or elsewhere upon
the case made by his bill, the defendant
may demur to such discovery; or he may,
in his answer, refuse to make the discove
ry and rely upon the immateriality of the
fact of which the discovery is sought.
Kuypers v. Reformed Dutch Church,

570

18. No repleader is awarded in the court of
chancery upon an immaterial issue. And
if the truth of the several allegations con-
tained in the plea are established by the
proofs upon an issue joined on such plea,
the bill must be dismissed; as the court,
in that stage of the proceedings, does not
inquire as to the validity of the matters
pleaded as a defence to the suit. But if
the defendant fails in proving the truth of
his plea, it must be overruled as false; and
the complainant will then be entitled to a
decree according to the case as made by
his bill. Dows v. McMichael,

139

after answer, it is a matter of right for
the defendant to put in a new or a fur-
ther answer to the amended bill; except
where the amendment is a mere matter of
form which cannot vary the rights of the
defendant. But in the answer to an
amended bill it is not allowable to repeat
the allegations in the former answer, un-
less the grounds of the suit and the defence
to the same are varied in substance. Bow.
46
en v. Idley,