ABSOLUTE OWNERSHIP, SUSPENSION OF
See TRUSTS, 15 to 17; 22 to 28.
1. The complainant was vested with the title
to certain real estate, in trust for the bene-
fit of himself and various other persons own-
ing unequal and distinct, but undivided
shares therein. He was to employ an agent
or substitute to manage and sell the pro-
perty, and he was not required to act him-
self further than to execute conveyances,
and was to be liable only for gross miscon-
duct or neglect.
On a bill filed to settle the accounts of the
trustee, sell the property, reimburse his
advances, and wind up the trust, all the
other shareholders were made defendants,
together with two persons who had succes-
sively been agents or substitutes of the
trustee, and whose accounts had never been
adjusted. These persons were also original
shareholders, and the bill sought to have
their accounts settled and closed.
A demurrer to the bill for multifariousness
was overruled. Kent v. Lee,
purchase. The account embraced those,
with large disbursements also, and the de-
cree restricted interest on all advances to
six per cent. Held, that the disbursements
were not included in the restriction.
See CONFIRMATION, 2, 3.
COSTS, 3.
See EXECUTORS AND ADMINISTRATORS.
See ACCOUNT, 3.
MORTGAGE, II.
2. Where parties supposing that they were
seised, sold and conveyed lands, with cov-
enants of seisin and warranty, to which as
it subsequently appeared, they had no title;
and six years afterwards, on being sued by
their grantee on the covenant of seisin, pur-
chased the lands of the true owners, and
tendered a new conveyance thereof to the
grantee, who refused to accept it; Held,
that the court had no power to compel the
grantee to receive the deed, or to interfere
with his action on the covenants of title. id.
3. Two Lutheran churches or religious socie-
ties, each owing temporalities, though of
unequal value, entered into an agreement
for a union, to remain forever as one body,
congregation or society, by a new name ex-
pressing such union; and by which their
estates were to be consolidated for the com-
mon use and benefit, and the charge of their
estates and concerns was instrusted to offi.
cers to be chosen out of the united congre-
gation; with other provisions showing an
entire union and consolidation into one
body; and the agreement also provided that
out of the property, the ancient church of
one of the constituent societies should be re-
built on the site where its ruins stood, for
the use of the united congregation as soon
as circumstances would admit.
The united body was immediately afterwards
incorporated by the name agreed upon, and
after twenty years, the corporation sold the
site of the ancient church, and never re-
buil it.
In a suit brought by persons claiming to be
corporators in the united church, and to be
in part the representatives of the ancient
congregation which owned such site, to
compel the corporation to build and endow
a church in pursuance of the terms of the
union:
Held, 1. That all the property of the two
churches became vested in the incorpora-
tion.
2. That the management and control of the
same vested in the trustees as a distinct
body, and to the exclusion of the elders
and deacons.
3. That the same vested in the corporation
as an individual body or unit, in trust for
the maintenance of the faith, doctrines aud
discipline of the Evangelical Lutheran
Church; and not for the benefit of the two
former congregations connected together!
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That the agreement for the union did not
constitute a trust or a covenant, for the re-
building of such edifice on the ancient site,
or elsewhere. It was merely an expressed
intention, which the corporation and subse-
quent corporators might execute or waive,
in their discretion.
6. If there had been a trust, the court from
the lapse of time and the circumstances,
would presume that the sale of the site and
other appropriation of the fund, were by
the direction and with the consent of those
interested Cammeyer v. United Lutheran
Churches, &c.,
An offer to sell land at a fixed price, with
out more, is an offer to sell for cash. id.
5. The acceptance of such an offer, to bind
the seller, must be simple, and without the
addition of any new terms or qualifications.
6. Since the revised statutes, contracts for
the sale of lands resting upon mutual promi.
ses, must be subscribed by both the buyer
and the seller, to be obligatory upon the
latter.
id.
See COMPROMISE.
DEEDS, 3 to 8.
FRAUDS, STATUTE OF.
INTEREST, 8 to 14.
MORTGAGE, 38.
PARTNERSHIP, 1 to 5.
SPECIFIC PERFORMANCE, 2 to 5.
See CORPORATIONS, 11.
TRADE MARKs, 6, 7.
ALLOWANCES.
See ACCOUNT, 2, 3.
AMENDMENT.
See PRACTICE, 15, 16.
6. An assignee in bankruptcy may avoid an
assignment executed by the bankrupt in
fraud of his creditors, before the passage of
the bankrupt law; but if a judgment credi-
tor files a bill to set aside the assignment,
before the proceedings in bankruptcy are
instituted, and duly prosecutes his suit; he
thereby acquires a lien which cannot be di-
vested or impaired by the assignee in bank-
ruptcy.
id.
7. This was held in a case where the bill was
filed, the subpoena to answer served, and
the order for a receiver made, before the
petition in bankruptcy was presented to the
U. S. District Court; although no receiver
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9. After a debtor had been decreed a bank.
rupt and before he was finally discharged,
a judgment creditor's suit was commenced
against him, and the creditor claimed to
to have discovered a piano, which he was
entitled to have applied towards his debt.
The answer set up the bankrupt proceedings
and the debtor's discharge. Held, that if
the piano were acquired by the debtor prior
to his bankrupt proceedings, it became ves-
ted in his assignee by force of the decree;
and if it were acquired subsequently, the
discharge was a bar to the creditor's claim
in respect of his judgment. McCabe v.
Cooney,
314
10. In setting up a bankrupt discharge as a
defence in an answer, it is not necessary to
use the same precision, and certainty that
is requisite in a plea.
11. An answer stating that the defendant
made his application, and showing its terms;
that he then resided in the district where it
was made; that he was a bankrupt within
the act of congress, and was owing debts
which were not contracted as executor,
&c. ; that upon regular proceedings had in
the District Court he was decreed a bank-
rupt and the decree is still in force; and
that upon further regular proceedings, he
was discharged from his debts by a decree
of the court, and received a certificate; the
certificate of discharge being then set out
at length; was held to be sufficient as a
pleading, to establish the defence. id.
12. It is not necessary in such an answer, to
allege that the complainant's debt was not
within the class of debts which are exclu-
ded from the operation of the bankrupt law.
If the complainant intends to insist that his
debt was one of that class, he must state
the fact in his bill, as he would any other
matter of avoidance.
id.
See BANKING ASSOCIATIONS.
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2. W. was the accommodation indorser of his
son N., on a note to B., payable at the
complainant's bank, on the 31st July. By
an error of their clerk the note when leit
for collection, was entered as due 31st
August, and was not presented for payment
at its maturity, nor any notice of its non-
payment given. N. was aware of there
being a mistake at the bank as to the time
when the note would fall due; but to pro-
vide for its renewal in case it should be prop-
erly presented, he prepared a new note for
the same amount dated 31st July, and his
check for the discount, and left the same
with his partner who was the notary of the
bank, to obtain his father's indorsement on
the note, and renew the old note if it were
presented on that day. W: on the 31st
July called on the notary and indorsed the
new note, but nothing was done with it.
B. claimed the amount from the bank on
the neglect to charge the indorser, and the
bank paid B., and then sued W. on the old
note. W.defended the suit. Some months
after, two large mortgages of W. to the
bank, on distinct parcels of land, fell due,
and W. desired an extension of payment.
The result was an agreement, by which
W. paid about one-third of N.'s note, and
executed a new mortgage to the bank for
the amount of the two former, payable at
a future day, and embracing both parcels
of land. Held, that the mortgage was not
id.
3. It seems, that under the circumstances W.
was liable as indorser, independent of the
new agreement.
id.
Such a contract stands upon a different
footing from one for the sale of promissory
notes and inland bills of exchange previous
to their being issued or put in circulation.
Notes and inland bills are not the subject
of sale, except when held by one who can
maintain a suit upon them against the other
parties at maturity.
id..
The New York cases on this subject, com-
mented upon.
id.
4. Foreign exchange is a commodity which 3.
is bought and sold like merchandize. The
thing sold by the drawer of a foreign bill, is
his money or funds abroad, or, what to the 4. Where a surety took a confession of judg
VOL. II.
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