rei sitæ, to say, that because this New-York contract is secured by a mortgage on lands in New-Jersey, where the legal interest is six per cent. only, it is void for usury, or even to say that the lender shall receive only New-Jersey interest: 3 Atk. 727, Stapleton v. Conway.

Another ground relied on by the defendant was, that the bond and mortgage, though executed, witnessed and acknowledged in New-York, were actually delivered at the clerk's office in New-Brunswick, New-Jersey, and not in New-York. I do not see that the mere fact of the exchange of the papers in some place out of New-York, deprives it of the character of a NewYork contract. But in this case, the reason why it was done is manifest. It was done by arrangement between the parties, and by the advice of the complainants' counsel, in order that the complainants might be sure that their mortgage found its right place on the record.

As to the rate of interest in New-York, it is sufficiently proved in the case, if it were necessary to prove it. But it was not necessary. The defence is usury by the law of New-Jersey. This defence cannot be made in relation to a New-York contract.

The defence is overcome by showing that this was a contract not subject to the New-Jersey statute. If the contract was usurious in New-York, it was for the defendant to show it, in pleading and proof.

The complainants are entitled to the relief sought by their bill. The usual reference will be ordered.

Order accordingly.

REUBEN ROCKWELL and AZARIAH LEE V. JAMES S.
LAWRENCE et al.

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.

THIS bill, filed November fifteenth, eighteen hundred and forty-four, is a bill for the specific performance of an alleged contract between Reuben Rockwell and Azariah Lee, the complainants, and James S. Lawrence, for the sale by Lawrence, and the purchase by the complainants, of a tract of pine timber land in Monmouth county, called the Greenwood tract.

The bill states, that on the twenty-third of September, eighteen hundred and forty-three, Charles Stewart and his wife sold and conveyed this tract, with others, to John Read. That at the time of the delivery of the deed from Stewart to Read, the said Read, with the complainant Rockwell under him, was in possession of the land, under an agreement for the purchase thereof from Stewart; and that ever since the delivery of the said deed, Read, and one of the complainants under him, had continued in possession, up to the time of the making of the contract stated in the bill. That Stewart and wife, before conveying to Read, had given a mortgage to one McKnight on the Greenwood tract, for fifteen hundred dollars; and that under a decree of this court for the foreclosure of the said mortgage and the sale of the said tract, it had been sold by the sheriff of the county of Monmouth to the said James S. Lawrence, on or about July the fourth, eighteen hundred and forty-three. The bill then sets out what is claimed to be the agreement, the specific performance of which is sought by the bill; and states that in pursuance of the said agreement, the complainants went into possession of the tract and commenced cutting and coaling for the spring sales, &c..

It is not necessary, on this motion, to state more fully the charges in the bill, on which the prayer for specific performance is founded.

After the alleged contract, the premises were sold and conveyed by the defendant Lawrence, to the defendant George Cornelius. The bill alleges that Cornelius had notice of the contract. Cornelius had brought ejectment to recover possession of the premises, and the bill prayed an injunction to restrain him from proceeding in that suit. The injunction was granted.

The defendants put in their joint and several answer. They deny that any such agreement as is set forth in the bill, either in form or substance, was ever made; and deny that the complainants went into possession under any such agreement. Lawrence says, that he bought the Greenwood tract in behalf of himself and the defendant Wyckoff, and so informed the complainants, at the interview of February first, eighteen hundred and forty-four, stated in the bill, (being the interview at which the complainants charge that an agreement for the purchase and sale of the tract was made.)

The answer states, that the agreement under which the defendants went on to the tract and commenced cutting, was an agreement that they might go on the 'tract, and cut and coal until some time in the early part of the season, and take the coal to market, and pay over one fourth of the proceeds, as the complainants proposed doing in case they should buy the tract, and that if, on such trial, the complainants should coal and take to market as much per week as they proposed, viz. two thousand bushels, and realize twenty cents a tub, and pay over, on the sale of each cargo, commencing about April the first, thereafter, one fourth of the price of the coal, to Lawrence and Wyckoff, and should satisfy them that they would be able to pay for the tracts in the manner they proposed in case they should buy, that then the defendants, Lawrence and Wyckoff, on being so satisfied, would enter into a contract to sell to the complainants, the Greenwood tract for five thousand dollars, and another tract, called the Fanago tract, for three thousand dollars; but that if on such trial, the complainants should fail

in any of the above particulars, or if, for any cause, the contract for sale should not be entered into, then the complainants were to pay to Lawrence and Wyckoff a fair compensation for the wood and timber they should take away, and yield up possession of the premises. And Lawrence says, that the complainants were willing, in case the contract for sale should be finally entered into, to give eight thousand dollars for the two tracts, but were not willing to give more than four thousand dollars for the Greenwood tract alone, which he, Lawrence, refused to take; and that they never came to any agreement, whether the Greenwood tract should be at the price of four thousand, or five thousand dollars, and that the only conclusion they came to was as above stated.

The answer states, that the authority given to the complainants to go to cutting for the spring sales, was under this agreement set forth in the answer; and that the complainants commenced cutting under this agreement, and took coal to NewYork, until about May twenty-second, eighteen hundred and forty-four; yet had never accounted for the proceeds, or paid any part of the same, as by the terms of their agreement they were bound to do. That they were not able to coal one thousand tubs a week, nor had they taken that quantity to New-York. That at this time it had become manifest, that the complainants could not comply with their contract as stated in the answer, nor with the contract if it had been as stated in the bill.

That Lawrence then stated to Rockwell, that it was apparent the complainants could not fulfil the contract of sale if they entered into it. That at Rockwell's request, Lawrence consented to afford the complainants another trial, to see whether, if the contract of sale should be finally entered into, there was any prospect of their being able to pay for the lands according to their proposals, as stated in the answer. That this second trial was given on the express understanding with the complainants, that if they failed, the whole matter, as far as the sale was concerned, should be at an end, and the complainants should pay the fair value of the wood and timber cut.

That the complainants continued cutting until November, eighteen hundred and forty-four, when they were stopped by a

rule of the supreme court to stay waste, made in the ejectment suit; but that they never accounted for each cargo of coal as it was sold, or at any other time, and never paid over any part of the proceeds, except as stated in the two receipts mentioned, &c.

It is not necessary to state more of the answer, for the purpose of disposing of the present motion.

On this answer the defendants, by their counsel, moved to dissolve the injunction.

W. L. Dayton, in support of the motion.

Ryall and P. D. Vroom, contra.

Cases cited against the motion. 2 John. Ch. R. 202, 148; 3 Ibid, 345; 1 Green's Ch. R. 40, 438.

THE CHANCELLOR.

As to the question of notice to Cornelius, there is no difficulty in the case. If, as between the complainants and Lawrence, there was a contract of sale and purchase, there is enough in the bill and answer to charge Cornelius with notice. The inquiry is, does it sufficiently appear from the bill and answer, that there was any such contract as is set out in the bill? Lawrence and Wyckoff positively and fully deny it, and state what the agreement was, under which the complainants went to cutting. But it is said by the counsel for the complainants, that as the injunction is against Cornelius alone, it must stand or fall by his answer, and that he cannot call to his aid the answer of the other defendants; that if he has no knowledge of the facts, and cannot deny the charges of the bill, the injunction must stand. This ground cannot be maintained. It is a bill for the specific performance of an alleged agreement between the complainants and Lawrence. The injunction against Cornelius, the subsequent purchaser from Lawrence, is only auxiliary to the relief sought by the bill. Lawrence denies the equity of the bill, and the facts from which it is supposed to arise; and Cornelius denies any knowledge, information or belief of the alleged agreement. Should the injunction be retained because the subse