1835.

CHASE

v.

BYRNE.

Let a reference be had to Master Cambreleng, to ascertain whether two dollars a week is a suitable allowance or what sum is proper to be advanced for the support of the complainant pending this suit; and whether she is fit to be entrusted with the money and would be likely to make a proper use of it for her support. All further directions--including the question of an advance to her solicitor-are reserved until the coming in of the report.

CHASE V. BYRNE.

Where notes are taken in satisfaction of a judgment, the debtor giving them must prove affirmatively not only delivery and acceptance, but also an agreement to receive them in payment and to run the risk of their goodness-otherwise he cannot set up a plea of accord and satisfaction.

Sept. 15,

1835.

Judgment creditor's bill. Plea, accord and satisfaction. It appeared by the testimony taken under the issue upon Accord and the plea that on the judgment being had, the attorney agreed satisfaction. to take good business paper and goods in payment and settlement of the debt. Certain notes and goods were accordingly received: but the notes turned out to be worthless. There was evidence which went to negative an intention of taking the notes as cash.

Mr. J. Taylor and Mr. Selden, in support of the plea.

Mr. D. D. Field, for the complainant.

THE VICE-CHANCELLOR :-This is a judgment-creditor's bill and to which the defendant has pleaded in bar an accord and satisfaction, by the delivery of three several promissory notes of third persons and some goods. Issue is joined upon

the plea; and the cause is before the court upon the question of fact presented by it.

Notes and goods were delivered by the defendant to the complainant's solicitor to the amount of the judgment: but the notes were not paid at maturity and the makers of them have proved insolvent. The question is, whether the complainant received the notes in payment and satisfaction of the judgment absolutely or only by way of security and to be a satisfaction of the judgment only when paid.

The rule of law is that a note or bill taken for a precedent debt, which turns out to be bad, is no payment, unless the creditor expressly agrees to receive it as payment and run the risk of its goodness: Tobey v. Barber, 5 J. R. 68 ; Johnson v. Weed, 9 Ib. 311; Whitbeck v. Van Ness, 11 Ib. 414; Hardin v. Kretsinger, 17 Ib. 295; Muldon v. Whitlock, 1 Cowen, 306. The judgment in this case was a preexisting debt, and to support the plea it is incumbent on the defendant to prove affirmatively, not only the delivery of the notes and the acceptance of them by the complainant or his solicitor or attorney, but also an agreement to the effect just mentioned. The defendant's testimony certainly fails to prove this; and it goes no further than to show the notes were delivered in "settlement" of the judgment. This might be―and still not operate as an absolute payment and satisfaction. The circumstances attending the case, the course of the transaction and the testimony of the witnesses go to show there could not have been such an agreement or understanding in relation to the taking of the notes.

The plea is not supported; and the complainant is entitled to a decree for the payment of his judgment out of any estate or property of the defendant which can be discovered.

As the defendant has died since the hearing, a decree may be entered as of a day anterior to his death.

1835.,

CHASE

V.

BYRNE.

1835.

HAY
V.
POWER.

HAY U. POWER and another.

A defendant who has obtained an order for a non resident complainant to give security for costs, should move to dismiss the bill where delay arises in giving the security; and not continue, on his part, by putting in answer and placing the cause on the cal endar: for this will be virtually waiving his order for costs and debar him from the motion to dismiss.

Sept. 14, 1835.

Plea. Practice.

Waiver of the effect of

an order.

Complainant was a non-resident; and an order was obtained by the defendants requiring security for costs and that all proceedings on his part in the meantime be stayed. This did not stay the defendants, and they put in their answer, and placed the cause upon the calendar on bill and answer, refusing to receive a replication. The defendants now moved to dismiss the bill, on the ground of the order for security for costs not having been complied with-this order was obtained on the ninth day of December one thousand eight hundred and thirty-four.

Mr. J. Blunt, for the motion.

Mr. F. Dibblee, in opposition.

THE VICE-CHANCELLOR :-I consider the setting down of the cause by the defendants a waiver, in effect, of the order for security. If the defendants had wished to have the benefit of that order, he should have moved to dismiss for non-compliance with it without setting down the case for hearing upon the merits. The former course would have been proper: Camac v. Grant, 1 Sim. 348. There was no condition or proviso in his notice of hearing to save to himself the benefit of the order. The calendar, upon which the cause stands, has been called and thus the defendant has had an opportunity of bringing on the cause according to his notice and cannot complain of delay

on this score. The cases most analagous on the subject of waiver are Morgan v. Morgan, 1 Atk. 53; Hall v. Chapman, Dick. 348; Dixon v. Olmins, 1 Cox, 412, and Hoskins v. Lloyd, 1 S. & S. 393.

The motion must be denied, but the costs may abide the event of the suit.

1835.

CROMWELL

v

CROMWELL.

CROMWELL v. Cromwell.

C., by her will, directed her property to be converted into money and invested at Interest; and, after giving legacies, ordered as follows: "that all such residue of said interest money or other profits as there shall be, after such payments as above mentioned, be equally divided among my children or the survivor or survivors of such as shall die childless yearly and every year share and share alike during their natural lives; and that if either of my said children shall die leaving a child or children, then the part or share of which the parent of such child or children was receiving the interest during his life shall immediately vest in and be the property of such his child or children as shall be living at his death :" Held, that this did not come within the provision of the Revised Statutes (I R. 8. 773. § 1.) providing against the suspension of ownership of personal property for a longer period than two lives; and that the clause was good.

1835.

Will.

Mrs. Cromwell died, leaving personal property only, amounting to about ten thousand dollars. She had made October, her will, bearing date the fourteenth day of May one thousand eight hundred and thirty. Her death happened in the month of February one thousand eight hundred and thirtythree. By her will, after directing all her property to be sold and converted into money by the executors and the money to be put out at interest, she ordered some small legacies and annuities to be paid out of such interest and then directed (taking the words of the will) "that all such residue of said interest money or other profits as there shall be after such payments as above mentioned be equally divided among my children or the survivor or survivors of such as shall die childless yearly and every year share and share alike, during their natural lives; and that if either of my said children shall die leaving a child or children, then the part or share of which the parent of such child or children.

1835.

CROMWELL v.

CROMWELL.

October 5.

was receiving the interest during his life shall immediately vest in and be the property of such his child or children as shall be living at his death."

The testatrix left three sons, who were the parties to this suit. The two made defendants were appointed executors; and had proved the will and held the property upon the trusts specified in it. The complainant was unmarried; and he filed his bill for the purpose of avoiding the limitations over to the survivors and survivor and to their child or children in the event of their leaving any-and prayed for an immediate distribution of the whole residue among the three sons absolutely upon the ground that such limitations over were void in law.

Mr. W. K. Thorn, for the complainant.

Mr C. T. Cromwell, for the defendants.

THE VICE-CHANCELLOR :-The Revised Statutes, which were in force when this will was made and took effect, provide "that the absolute ownership of personal property shall not be suspended by any limitation or condition whatever for a longer period than during the continuance and until the determination of not more than two lives in being at the date of the instrument containing such limitation or condition or if such instrument be a will for not more than two lives in being at the death of the testator" : 1 R. S. 773, § 1.

The question is: whether this case comes within the section just quoted? Is there, by this will, a suspension of the absolute ownership beyond the lives of two persons in being at the death of the testatrix?

If the will bequeath the property to the executors in trust or convert it into a trust fund in the hands of the executors for the benefit of the three sons for life in joint tenancy, creating but one estate or interest in the whole fund and preventing a partage or division until the termination of all three of the lives and, in the meantime, the interest of persons who are to take in remainder be contingent, then, ac