Smock v. Jones.

"Saving and reserving all questions as to the priorities of the several mortgages thereon, as to the payment of the moneys to the several parties interested therein, and whether the same [the property] should be sold together or in parcels."

A decree was accordingly entered February 1st, 1880, directing that the property be sold. The premises were sold under the execution March 10th, 1880. Jones's brother attended the sale at the request of Mrs. Jones, and bid for the property, but was not the highest bidder. It was struck off to Henry S. Little at $13,350 or thereabouts, and he subsequently sold and conveyed it to Mrs. Jones at an advance of $1,000 over the price at which he bought it. Out of the proceeds of the execution sale the amounts due to the complainant, Mary Willetts and the board of chosen freeholders, respectively, were paid, and the rest of the money, $1,468.88, was paid into this court. From that time until the filing of the cross-bill hereafter to be mentioned, no step was taken in the cause. Early in 1881 the assignee filed his cross-bill to set aside Mrs. Jones's mortgage on the ground of fraud. It was filed without leave. She demurred to it, and the demurrer was sustained. The order sustaining the demurrer was entered November 9th, 1883. On November 20th, 1883, Mrs. Jones filed her petition in the cause for the payment of the money in court to her on account of her mortgage. No adjudication was made upon it. On December 11th, 1883, an order was obtained by the assignee, on affidavits, requiring her to show cause why he should not have leave to amend his answer by setting up the defence of fraud against her mortgage, and to file a cross-bill against her, if necessary, to set aside the mortgage on that ground. The assignee was not aware of the existence of the objection to the mortgage in question when he put in his answer. About the time when the agreement to sell was made, he first learned of it, and then ascertained also that the matter was in the course of litigation before the advisory master under the answers of Mary Willetts and the board of chosen freeholders, and he understood and believed, he says, that the question of the bona fides of the mortgage, and whether anything was due upon it, would be tried and adjudicated upon under those answers. He also says that

Smock v. Jones.

he intended to bring those matters to trial under the pleadings as they then were, or if not appropriate, then under others to be filed by himself for the purpose, but awaited the result of the sale, desiring to ascertain whether there would be any surplus after paying the other mortgages before incurring any expense in the matter. There is no reason to doubt that he in good faith intended to test the validity of the mortgage. The proceedings were in fact not apt for the purpose. The defence to the mortgage was set up by two prior mortgagees, and it was set up in their answers only and not by cross-bill, as the practice then required. Nor could they have obtained leave to file a cross-bill had they applied for it, because being prior mortgagees they had no interest in the question of the validity of that mortgage.

It is urged in opposition to this motion that the agreement before referred to was an abandonment, not only of all litigation of the question, but of all intention to litigate it. But the evidence does not sustain this claim. Apart from what the counsel of the complainant and the counsel of Mary Willetts and of the board of chosen freeholders and the assignee himself swear was their understanding of the agreement, the instrument itself is evidence that there was no intention to do anything more than effect a sale of the property and transfer the litigation from the land to the proceeds of the sale. The agreement expressly reserves all questions as to the priorities of the several mortgages (all of them), and as to the payment of the moneys to the several parties interested therein, and also as to whether the premises should be sold as a whole or in parcels. Clearly, there is no evidence of an intention to abandon any defence, but directly the contrary.

It is also urged that justice to Mrs. Jones requires that the assignee be not permitted to question the validity of her mortgage now, because, believing that all such question was put at an end by the agreement for sale, she procured her brother-in-law to attend the sale and bid upon the property. There is no weight in that objection.

It is also urged that the application comes too late that the motion for leave to file a cross-bill should have been made at the Cary v. Cary.

time of putting in the answer. But as already stated, the assignce swears that he did not know of the defence when he filed his answer, and therefore did not set it up. This application differs essentially and radically from the application of a defendant to amend his answer so far as the complainant's claim to relief against him is concerned, and most of the rules which govern in such cases are not applicable to this. This is not an application of a defendant to change or add to his defence to the complainant's suit against him, but is a request by a defendant in a suit in rem for leave to put in a defence against the claim of a codefendant. Obviously, leave should be readily given in such a case, unless there be special circumstances to forbid. There is nothing in the conduct of the assignee to induce the court to deny him the desired opportunity. It is not alleged that Mrs. Jones will be prejudiced in any way by the delay which has taken place, and a satisfactory excuse is given for it. The leave will be granted. Under the present practice a cross-bill will not be necessary. The defence may be set up by way of crossbill in the answer, which may be amended accordingly. The assignee, however, should pay Mrs. Jones her costs of this application.

ANNA V. CARY

υ.

GEORGE CARY.

Statements by a defendant who was subsequently arrested on a ne exeat, made to complainant's lawyer, that if suits should be begun against him, and he should be likely to get the worst of it, or if any order should be made against him by any court, his (defendant's) lawyer would find it out beforehand and would let him know, so that he could and would leave the state before they could do anything with him, accompanied by other statements, that complainant and her father were both poor, and that he would law them both to death if they attempted any suits against him, and that he had put all his property out of his hands, but still had the benefit of it, are sufficient, on an application for his discharge, to hold him in custody under the ne exeat.

Cary v. Cary.

Bill for divorce a mensa et thoro and alimony. Motion to discharge ne exeat.

Mr. B. C. Frost, for the motion.

Mr. J. F. Dumont, contra.

THE CHANCELLOR.

This is an application to discharge the defendant from the custody in which he is held under a writ of ne exeat issued in this cause, or, failing that, to reduce the amount of the bail. Bail was ordered in the sum of $1,000. The defendant denies with great particularity and positiveness the charges of cruelty made against him in the bill, and while to a certain extent he is corroborated by his witnesses, the evidence on the other side in support of those charges is overwhelmingly against him.

As to the grounds for the ne exeat: While he swears that he never said what is imputed to him in the complainant's affidavit annexed to the bill, and on which the writ was granted, it is proved that he said to the complainant's lawyer before the suit was begun, referring to her complaints against him and her application to the lawyer to take legal proceedings for her relief, that if law-suits should be commenced against him, and he should be likely to get the worst of it, or if any order should

Kirkpatrick v. Corning.

be made against him by any court, his lawyer would find it out beforehand and would let him know, and then he could and would go out of the state before they could do anything with him, and that they would find that he was a good deal too smart for any of them. The same witness testifies that the defendant said to him that the complainant and her father were both poor, and that he would law them both to death if they attempted any suits against him; that he was ready for them; that he had some time before that put his property out of his hands to prevent his wife from getting any of it, but that he yet had the benefit of it when he wanted it, and that he had credit to the amount of $3,000 that he could use. The witness adds that the defendant then drew from his pocket and showed him a roll of bills, about a dozen, and exhibited one of them so that he might see that it was of the denomination of $100, and remarked that they could not hurt him so long as he had plenty of those, and added that he had and could raise more like that if necessary, and that they could carry him through. There is no ground for granting the motion to discharge him from custody, nor is there any reason for reducing the amount of the bail. The motion is denied, with costs.

ANDREW KIRKPATRICK, receiver &c.,

v.

ERASTUS CORNING et al.

On a general demurrer to a bill, the decree of the chancellor in favor of the demurrer was reversed by the court of appeals, but a part of his decision, as expressed in his opinion, was approved.-Held, that, after the decree of the court of appeals had been remitted to this court, the defendants could apply, under the two hundred and fifteenth rule, and have stricken out of the bill so much thereof as was held to be objectionable by that part of the decision sustained by the court of appeals; such proceeding being tantamount to an amendment of the original demurrer.