F.

FEME COVERT. Vide Husband and Wife,

FRAUD.

1. A sheriff's sale of land declared unlawful by reason of means used to prevent competition, and the consequent sacrifice of the property. The Hamburgh Manufacturing Company v. Edsall.

249

2. Several executions had been levied by a sheriff on the lands of the Hamburgh Manufacturing Company, of which the first in priority was in favor of E. The same sheriff had in his hands, at the same time, an execution issued on a decree in chancery, on the first mortgage, for the sale of the Mine farm of the Clinton Manufacturing Company, and also an execution at law against the said Clinton Company; by virtue of which he had levied on the said Clinton Company's Mine farm. E. held a subsequent mortgage on this Clinton Mine farm. Prior to the sale, certain creditors of the Hamburgh Company, having no judgments, together with E., entered into an agreement in writing, among themselves, that L., one of them, should, as their trustee, buy the lands of both companies, as a means of securing their debts against the Hamburgh Company, including E.'s judgment and other claims he had or made against the Hamburgh Company, and his mortgage on the Clinton Mine farm. There was also an understanding with P., who held the bulk of the stock of both companies and was carrying on or conducting the business of the Hamburgh. Company, that the said trustee should convey both properties to him, on his paying the debts of the said agreeing Hamburgh creditors and the sums for which the property should be struck off to the said trustee. By these means competition was prevented, and the properties were sold at a sacrifice, and bought by L., one of the agreeing Hamburgh creditors; the other judgment creditors of the Ham-burgh Company not being present at the sale. The sheriff's deed to L. was absolute. On a bill filed by the Hamburgh Company and P., it was held that the sales of both properties were unlawful; and that L. was a trustee of the Hamburgh property for the Hamburgh Company and its creditors; but that as to the Clinton property no decree could be made, the Clinton Company not being parties to the suit. ib.

Vide Partners, 4. Executors and Administrators, 5, 6.

Corporations, 2, 8, 9, 10.

FRAUDS BY INCORPORATED COMPANIES.

Proceedings under the act to prevent. Corrigan v. The
Trenton Delaware Falls Company.

232

FRAUDS (STATUTE OF.) Vide Trust and Trustee, 6.

FRAUDULENT CONVEYANCE.

Vide Executors and Administrators, 6.

GUARDIAN. Vide Lunacy.

G.

H.

HABEAS CORPUS.

1. An infant daughter ordered to be delivered to her father, on a habeas corpus applied for by him, though he had verbally committed her to the care and custody of the respondent until she should attain the age of twenty-one years. The State ex relatione Mayne v. Baldwin.

HEIRS AND DEVISEES.

454

1. In October, 1837, D. S. being then seized of a farm on which he lived, and of no other real estate, made his will, by which he directed his executor to pay the debts out of his personal estate, and in defect thereof to sell so much of the real estate as to pay the debts; and from and after the payment thereof, and subject thereto, that the residue of the personal estate be divided between his widow and his nephew D. D.; and the rents and profits of his real estate be distributed to them during their lives; and that on their deaths, respectively, their respective shares of such rents and profits to go to H. C. during his life; and that on his death all the said real estate should go to the children of the said H. C. In April, 1839, D. S. bought another farm, and paid $2000 of the purchase money, and for the balance gave a mortgage on the farm so bought; and afterwards, to discharge that mortgage, borrowed money on his own bonds, some of which existed as debts against his estate after his death. D. S. died in October, 1841, without having altered or republished his will; and the farm purchased by him after making his will descended to a brother and nephews and nieces, his heirs at law. Held, that the descended land was chargeable with the debts before the land devised. Stires v. Stires.

224

2. A decree against executors, in a suit against them, is no evidence, in a subsequent suit against the heirs and devisees, of the existence of the debt. Adm'rs of Hazen v. The Heirs and Devisees of Tillman.

HUSBAND AND WIFE.

363

1. If there be ground for apprehension on the part of the wife that her husband will not make a proper defence for her, leave will be granted to her to answer separately from her husband. Robbins v. Abrahams and Wife.

51

2. A husband bought real estate and directed the deed therefor to be made to another in trust for his wife and her heirs, so that the same should not be subject to his control or debts; and on the further trust to convey the same to such person or persons, for such uses, and subject to such provisions, limitations, and agreements as the wife, by writing under seal or will should give, limit, or appoint. The trustee and the wife afterwards executed a mortgage to secure a debt due from the husband, and the mortgage was duly acknowledged by the wife. Held, that the mortgage was good. Robbins v. Abrahams. 465 3. The deposition of the husband, offered on the part of the defendant, was held to be inadmissible. ib.

4. P. gave a mortgage to M. and afterwards married one of M.'s two daughters and only children. M. died intestate, leaving a widow and the said two daughters. The widow died shortly after. After the death of M. and the widow, H. married the other daughter, and she died without issue. H. then administered on M.'s personal estate, and filed a bill of foreclosure on the mortgage. Held, that H., by administering on the estate of his deceased wife, became entitled to her share of the amount due on the mortgage, without liability to account; but that no more of the mortgaged premises should be decreed to be sold than enough to pay the share of H.'s deceased wife. Adm'rs of Moore v. Adm'rs of Poland.

517 3. Though there be no express evidence of the delivery of an ante-nuptial agreement, and though it was in the possession of the husband after the marriage, its delivery will be presumed if its due execution be proved and it appear that it was recognized by the husband.

v. Smith.

Vide Alimony, 1, 2.

Specific Performance, 10.
tee, 8. Costs, 1.

I.

INFANT. Vide Habeas Corpus, 1.

INJUNCTION.

Ex'rs of Moore

649 Trust and Trus

1. On the positive denial of the allegations of the bill on which the complainant rests his equity, an injunction will be dissolved. Hatch v. Daniels, 14. Washer v. Brown. 81' 2. On bill for the specific performance of an alleged agreement for the sale of land to the complainant, an injunction was issued to restrain a subsequent purchaser from proceeding in an ejectment to recover possession from the complainant. The injunction may be dissolved on the answer of the defendant who is alleged to have made the agreement to sell, denying the agreement, and the answer of the subsequent purchaser, denying any knowledge, information, or belief of such alleged agreement. Rockwell v. Lawrence.

20

3. If on examining the complainant's claim of title to tim-
ber land, from which the defendant has been restrained
from cutting timber, the court is clearly satisfied that
the complainant has no title, the injunction will not
be retained, though an action of trespass for cutting
be pending at law, but will be dissolved. Westcott v.
Gifford.

24

4. In general, an injunction will not be dissolved unless all
the defendants implicated in the charge have answered.
Smith v. Loomis.

60

5. A., who was keeping a tavern, and occupying a house and
lands on one side of the road, and a small strip on the
other side on which were a well and stable used by him
for the purposes of the tavern, agreed to sell the premises
to B., knowing that B. desired to purchase them for the
purpose of keeping a tavern there, and represented to B.
that his title covered the strip on which was the well and
stables. A. did not own the strip. Under this represen-
tation B. entered into articles of agreement for the pur-
chase. An injunction was granted, staying the further
prosecution of an action at law, brought by A. against B.
for not complying with the articles, though the deed to A.,
which was referred to in the articles as containing a de-
scription of the premises, was on the table when the ar-
ticles were drawn in the presence of B.; the bill alleging
that B., confiding in the representations of A., did not ex-
amine the deed. Washer v. Brown.

81

But on the coming in of the answer, positively denying the
allegations on which the complainant's equity rested, the
injunction was dissolved.

ib.

6. The facts on which the equity of the bill rested were not
charged to be within the knowledge of the administrator.
A motion to dissolve on his answer was denied.
liams v. Adm'rs of Stevens.

Wil-

119

7. In 1813" The Society for Establishing Useful Manufac-
tures" sold a lot in Paterson, " together with the right of
taking from their canal twelve inches square of water."
A mill was shortly after erected on the lot, and water was
drawn from the canal for supplying it, without the use of
any means for accurately measuring the quantity drawn.
In 1827, the Society gave a notice to the owner of
the mill that they had reason to believe he was taking
more than the said quantity of water, and requesting him
to confine his future use of water to that quantity.
owner of the mill, in answer to the notice, said he was
not using more than the one foot of water. In December,
1843, a like notice was given and request made. The
owner did nothing to limit the flow. In April, 1844,
the Society built a stone wall in their canal, opposite
the head-race leading the water on the lot, and placed in
the side of the wall a piece of cast iron, with an aperture

The

in it of twelve inches square, for the flow of water into the head-race; and thereupon the owner of the mill prostrated the said wall. A motion for a preliminary injunction, restraining the owner from taking more water than will run through an aperture of twelve inches square, and from pulling down or taking out any guage which the Society might insert for the purpose of measuring twelve inches square of water, was denied. The Society for Establishing Useful Manufactures v. Holsman.

126 8. Preliminary injunction denied after great lapse of time. ib. 9. A mortgagor, in 1829, conveyed a part of the mortgaged premises to C. The mortgagee, on the same day, released that part to C., and on the next day assigned the mortgage to D. On bill filed by D. in 1844, a decree was made for the sale of all the land described in the mortgage. C. was made a party defendant with the mortgagor, but did not At appear, knowing that D. had notice of the release. the sheriff's sale, all the land described in the mortgage was set up and struck off to D.; and the sheriff, in pursuance of an arrangement between D. and E., made the deed to E. E. brought ejectment against C. for the part so conveyed and released to him. On a bill filed by C. against E. stating these facts, and that D. when he took the assignment of the mortgage had notice of the release, a preliminary injunction was granted, restraining E. from prosecuting the ejectment. Pierson and Gruet v. Ryer

son.

196 10. A denial on information and belief of notice to another is not sufficient to dissolve an injunction. ib. 11. The Society for Establishing Useful Manufactures, established in 1791, located at the falls of the Passaic, and owning mill sites there, on the 18th of August, 1845, pulled down a gate and waste way of "The Morris Canal and Banking Company," incorporated in 1824, and discharged the water from the canal into the Passaic above the falls. The Canal Company repaired the breach, and filed their bill against the Society for an injunction; which was granted. The Morris Canal and Banking Company . The Society for Establishing Useful Manufactures.

203 The Society answered the bill, and set up an agreement under seal, entered into between the Canal Company and them, in 1836, for the discharge of water from the canal into the stream above the falls, and stated that the Canal Company, in breach of the contract, had nailed down the gates of the waste way, and stopped the flow of water from the canal to the river; and thereupon it was moved to ib. dissolve the injunction. The motion was denied. The Society also filed a cross bill, praying a decree for the specific performance of the agreement, and that the Canal Company might, in the meantime, be restrained