Cary v. Cary.

the ordinary methods or by order of this court for the payment of the taxes out of the income or interest of the mortgage on petition of the collector of taxes. That act does not authorize, nor does it recognize as valid, any assessment against the chan• cellor; but it distinctly provides that the assessment shall be made against the person or persons having the beneficial interest in the mortgage, or who may be entitled to the interest. And in providing for the collection of taxes assessed in respect to such mortgages, under the act of 1879, it refers to assessments made against such persons only. The assessments in question, therefore, were wholly unauthorized, and inasmuch as they are not within the provisions of either of the acts above mentioned, they will not warrant the making of the order prayed for. The petition, therefore, must be dismissed.

ANNA V. CARY

υ.

GEORGE CARY.

A defendant arrested, and in custody under a ne exeat, may, before answer,

apply for the discharge of the writ on affidavits.

Bill for divorce. On motion for rehearing.

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

Mr. J. F. Dumont, contra.

THE CHANCELLOR.

This is an application for the rehearing of an order advised by a vice-chancellor, refusing to entertain a motion by the defendant to discharge a ne exeat issued against him, and under

Cary v. Cary.

which he was, and still is, in custody. The defendant has not answered the bill. His application is founded on affidavits. The ground of the refusal to entertain the motion was that, the writ having been served, the defendant could not be discharged on affidavit, but must answer. MacDonough v. Gaynor, 3 C. Е. Gr. 249, is cited as authority. Chancellor Zabriskie there, indeed, laid it down as one of the settled rules of practice in courts of equity, as to the writ of ne exeat, that if the writ is served, no subpœna is necessary, and the party cannot be discharged upon affidavit, but must make answer. He cites Russell v. Asby, 5 Ves. 98. It is quite obvious that such a rule, if it existed, might produce great hardship to defendants subjected to restraint under the writ unjustly obtained. Said Lord Eldon, in Hannay v. McEntire, 11 Ves. 54, "It [the writ] is a most dreadful weapon by which a malicious man may expose another, who has no intention of doing wrong, to great vexation." A rule which would deny to the defendant the privilege, not to say right, of appealing to the court to discharge the writ until after he shall have answered the bill, would, in some cases, put it out of his

Cary v. Cary.

power to seek relief for a long period of time, and so give to the complainant a great and unjust advantage, and ought not to exist. But such is not the rule. Lord-Chancellor Rosslyn did, indeed, so hold, in Russell v. Asby (1799), and in 2 Mad. Ch. Pr. 230. On the authority of that case, it is said that the defendant, having appeared, must put in his answer, and may then apply to set aside the writ; but, in Hyde v. Whitfield, 19 Ves. 342 (1815), Lord Eldon entertained a motion to discharge a ne exeat on the defendant's affidavit. In Flack v. Holm, 1 Jac. & W. 414 (1820), the same chancellor held that the court might ascertain from the affidavits-which, in that case, were put in on both sides-whether the writ was properly granted or not; and in Grant v. Grant, 3 Russ. 598 (1827), on a preliminary objection founded on the above-mentioned ruling in Russell v. Asby, he held that a defendant who was in custody upon a ne exeat might, at any time, apply to discharge the writ, on affidavits showing that it had issued improperly. In Newland's Ch. Pr. 238, it is laid down that the writ may be discharged by the defendant on his satisfying the court, by his answer or affidavit, that he has no intention of leaving the kingdom, or that he is not indebted to the plaintiff. In Smith's Ch. Pr. 551, it is said that a defendant in custody under a ne exeat is not bound to answer before he moves to discharge the writ. In Hoffman's Ch. Pr. 361–363, it is laid down that when the defendant has given the prescribed security, or is in the custody of the sheriff, he may move to discharge the ne exeat, giving the usual notice of a special motion, and that the motion may be made upon a want of equity appearing upon the bill itself, or the insufficiency of the affidavit or allegation as to the party's going abroad, upon the defendant's answer or upon affidavits. The writer adds that everything which shows that the writ ought not to have been granted, is a reason to discharge it, and that affidavits may be read both in support of and against the motion to discharge the writ. See, also, 2 Dan. Ch. Pr. 1712. In this court, in Parker v. Parker, 1 Beas. 105 (Chancellor Williamson), the defendant was permitted, before answer, to question, on affidavits, the propriety of granting the writ. See, also, Kirrigan v. Kirrigan, 2 McCart. 146

Van Duyne v. Shann.

(Chancellor Green). In the case in hand, the vice-chancellor declined, as before stated, to hear the application because the defendant had not answered. This was erroneous.

CORNELIUS VAN DUYNE

υ.

MATTIE C. SHANN et al.

A mortgage of $1,000 was foreclosed, but through the mistake of the complainant's solicitor a subsequent judgment creditor was not made a party. By an agreement between the owner of the equity of redemption (which was subject to the charge of a life estate and legacies amounting to $1,750, all of which were paramount to the judgment) and the mortgagee, the latter purchased the premises at the foreclosure sale and transferred his bid to the owner of the equity of redemption, and at the same time advanced to him another $1,000, for which he received a mortgage of $2,000, including his old mortgage, on the same premises. The owner of the life estate and the legatees released their respective interests in the premises, taking therefor mortgages subsequent to complainant's $2,000 mortgage. The additional $1,000 was expended in paying off the principal and interest of encumbrances prior to the $1,000 mortgage, and taxes on the premises then due.-Held, that the judgment did not, through the solicitor's mistake in omitting it from the foreclosure, become a lien on the premises prior to the $1,000, but the latter must still be treated as an existing encumbrance, and the complainant entitled to an account of the moneys due to him thereon, and of all moneys paid by him or any subsequent grantee for taxes and necessary repairs on the premises, as well as for the liquidation of any encumbrances thereon prior in lien to the judgment; and, on the other hand, complainant must account for all rents and profits received by his grantee or those claiming under him since the delivery of the sheriff's deed under the foreclosure of the $1,000 mortgage.

Bill to foreclose. On final hearing on pleadings and proofs.

Mr. G. O. Vanderbilt and Mr. J. H. Stewart, for complainant.

Messrs. J. W. & J. K. Field, for George Ward.

THE CHANCELLOR.

Van Duyne v. Shann.

This suit is brought to foreclose a mortgage given by John Fenning and wife, June 13th, 1856, to Anthony Simmons, on a lot of land (with a house upon it) in Princeton for $500 and interest, now held by the complainant, and a mortgage given to the complainant by Charles J. Fenning and wife, April 7th, 1871, on the same premises, to secure the payment of $2,000, besides interest. The lot is of the dimensions of sixty feet front and rear, by one hundred and twenty in depth, but by mistake is described in the first-mentioned mortgage as being one hundred and ninety feet deep. The bill prays that the description in that mortgage may be rectified in that respect. It appears that John Fenning, who continued to own the property after the complainant's first mortgage was given, up to the time of his death, gave, August 1st, 1865, another mortgage upon it to Abraham Johnson for $500 and interest, which mortgage was assigned on December 3d, 1872, to Robert D. Warren. John Fenning died December 31st, 1866. By his will he devised all his real property to his wife for life, with remainder in fee to his son John A., and charged it with legacies amounting to $1,750, to his children James, Frederick, George, Teresa and Mary, payable at the death of his wife or within a year thereafter. On May 26th, 1868, John A. Fenning, the son, gave a mortgage on the lot to the complainant for $1,000 and interest. On the same day James Palmer & Sons recovered a judgment against him in Mercer circuit court for $250; August 22d, 1868, Imlah and Charles Moore recovered a judgment against him and John Cruser in the supreme court of this state for $813.12; November 4th, 1868, Josiah H. Cain and George Ward (J. H. Cain & Co.) recovered a judgment (now owned by Ward, who has survived Cain) against him in the last-mentioned court for $669.99; December 2d, 1868, Theodore F. Johnson & Co. recovered a judgment against him and Benjamin R. Thomas (surety) in the Mercer circuit court for $504; October 9th, 1869, John A. Fenning and wife conveyed the mortgaged premises to his brother, Charles J. Fenning, subject to the legacies charged thereon and subject to their mother's life estate; December 8th,