the parties interested in the purchase, and the conditions of sale under which the same was purchased; by reason whereof the property bid off by the complainant has been greatly injured in value; and that Small still continues to own and exercise control over the said lots so bought by him. That since the payment of his note for part of said consideration money, the complainant has been informed of the fact that Small was the true bidder for the said buildings, in the name of J. W. Condit & Co.; and has also been informed that all the bidders against him were bidders in behalf of Small. That Small has brought suit on the bond given by the complainant. The bill prays an injunction to restrain the suit; and that the bond be delivered up to be cancelled; and that Small may account for and pay back to the complainant all monies received for the lots bid off by the complainant; and that the deed for the same be decreed void; or that Small be decreed to remove the buildings.

An injunction was issued, according to the prayer of the bill.

The answer denies that there was any underbidding whatever at the second sale; and there is no proof of it. It also denies that there is any thing in the conditions of sale, even if the conditions of the first sale can be considered conditions of the second also, which requires a person who bought a lot and also the building standing on it, to remove the building from it; and I am of this opinion.

Another point is made by the proofs in the case, and the argument of counsel on the part of the complainant it is that Small induced the first subscriber for a share to put down his name by telling him that if he would subscribe it would go; and that he should sustain no loss. Whether this would avail a purchaser, at the sale made by the associates, the purchaser being one of the associates, I am not called upon to say; for the reason that no such ground is taken by the bill.

A complainant cannot be allowed to make one case by his bill and another by his proofs.

Let the injunction be dissolved, and the bill dismissed.

JOHN ROBBINS V. GEORGE D. ABRAHAMS and his Wife and JAMES BURROws, Trustee for the Wife.

A husband bought real estate, and directed the deed therefor to be made to another, in trust for his wife and her heirs, so that the same should not be subject to his control or debts; and on the further trust to convey the same to such person or persons, for such uses, and subject to such provisions, limitations and agreements as the wife, by writing under seal, or by will, should give, limit or appoint. The trustee and the wife, afterwards, executed a mortgage of the lands to secure a debt due from the husband, and the mortgage was duly acknowledged by the wife. Held, that the mortgage was good.

The deposition of the husband, offered on the part of the defendant, was held to be inadmissible.

GEORGE D. Abrahams, at different periods after his marriage with Phebe his wife, bought three several tracts of land, and the deeds therefor were, by his directions, made to James Burrows, conveying the lands to the said Burrows in trust for the use and benefit of Phebe Abrahams, wife of the said George D. Abrahams, and her right heirs for ever, so that the same should not be, in any manner, subject or liable to the control, debts or liabilities of her said husband or any future husband; and on the further trust to convey the same to the use of such person or persons, for such uses and estates, and subject to such provisos, limitations and agreements as the said Phebe, notwithstanding her said coverture or any future coverture, by any deed or deeds, writing or writings to be by her sealed and delivered, or by her will duly executed, should give, limit and appoint. One of the said deeds was executed in May, 1830; another in April, 1831; and the other in May, 1831.

On the 1st of May, 1839, George D. Abrahams executed to Isaac Ivins a bond of that date, conditioned for the payment of two thousand dollars, with interest, in one year; and on the same day, James Burrows, as trustee of Phebe Abrahams, and the said Phebe Abrahams, executed a mortgage of the said lands to Ivins, bearing even date with the said bond, securing the amount of the said bond.

On the 1st of April, 1844, the said bond and mortgage were assigned by Ivins to John Robbins, the complainant. The bill was filed for the foreclosure of the said mortgage.

The mortgage was acknowledged by Mrs. Abrahams, in the usual form of acknowledgment by married women. There was a dwelling-house on one of the tracts, which was occupied by Abrahams and his family, and Abrahams also had the possession of the other lots.

Answers were put in by Burrows, and Phebe Abrahams, she answering separately from her husband, by leave of the court for that purpose first obtained; (see ante, page 16;) and testimony was taken. The defendant George D. Abrahams was sworn on the part of the defendants; and his testimony was objected to as incompetent.

H. W. Green, for the complainant. He cited Gresley's Eq Evid. 245; 2 Stark. Evid. 400; 1 Burr, 424; 4 Term Rep. 678; 7 John. Ch. Rep. 34, 229, 238; 1 Green's Ch. 131; 2 Vesey, 560; 5 John. Ch. 480; 14 Vesey, 542; 5 Ibid, 445; 6 Ibid, 376; 4 Kent's Com. 344, 345; 1 Sugden on Powers, 508; 3 John. Chan. 134, 144; 15 Vesey, 596.

P. D. Vroom, for defendants. He cited 3 John. Ch. 550, 113; 1 Ves. jun. 189 and note; 3 Dessaus. 417; 2 Ves. jr. 497, 498; 2 Ves. sen. 663.

THE CHANCELLOR. The principal grounds of defence are, 1st, That, under the terms of the trust in the several deeds to Burrows, the wife could not, by any mode of direction or appointment, authorize the trustee to execute a mortgage of the lands to secure the payment of a debt of the husband. 2d, That if she could authorize such a conveyance by the mode of direction or appointment specified in the deeds, her joining in the execution of the mortgage, without a previous deed of direction or appointment is not sufficient.

I cannot regard this case as standing on the same ground as an ante-nuptial settlement, or as a conveyance by one person in trust for the wife of another. If I could, I should feel bound to meet the inquiry, whether some of the doctrines which seem

to have been held elsewhere, as to the extent of the wife's right of alienation or appointment, and the mode of appointment, have ever been sanctioned in this state. But in the case before me, I am willing to take the broadest grounds that have been taken in England and in New York, sustaining conveyances by a wife, or by a trustee with her consent. I do not desire to be understood as now assenting that a husband can, at this day, in New Jersey, purchase property and direct a conveyance thereof to be made to a trustee for the use of his wife, and by that means placing it beyond the reach of subsequent creditors.

The deposition of George D. Abrahams, the husband, was objected to. I think it was incompetent.

Decree for the complainant.

George VAN SCOTEN v. John Albright.

By agreement under seal, J. A. covenanted to sell to G. V. a tract of land, and to make to G. V. a warrantee deed therefor; possession to be given on the 1st of April then next; and G. V., for and in consideration of the said tract of land, covenanted to pay J. A. $1850; $200 on the first of April then next, $400 in one year thereafter, and the balance in installments of $200 a year, all with interest until all should be paid. On the day fixed for the first payment, G. V. tendered the $200 and demanded the deed and possession. J. A. refused to give the deed, unless G. V. would execute to him a mortgage on the premises, to secure the subsequent payments. On bill filed by G. V. for the specific performance of the agreement, the relief sought was denied.

THE facts of this case sufficiently appear in the opinion delivered.

S. G. Potts and W. Halsted, for the complainant. They cited 3 Law Lib. 12; Saxton, 393; 3 Wash. C. C. Rep. 149; 2 Wend. 501; 4 Hill, 107; 3 John. Rep. 508; Story's Eq. Pl. 286, note; 10 Peters' Rep. 178; Gresley's Eq. Evid. 205 ; 2 Vesey, 196.

H. W. Green, for the defendant. He cited 1 Story's Eq. sec. 161, 162 note 1; Saxton, 52, 55; 8 Wheat. 174; 1 Vern. 267; 2 Ves. and Beam, 306; 15 Ves. 329; 6 Ibid, 759; 1 John. Ch. Rep. 308; 4 Wheat. 255; 1 Mad. Rep. 196; 1 Sugden on Vendors, 171, 204; 2 Ibid, 57; 1 Atk. 572; 3 Ibid, 272; 6 John. Chan. 117, 222; Sarton, 281.

THE CHANCELLOR. By an article of agreement under seal, dated September 25th, 1843, John Albright covenants to sell to George Van Scoten, "and by these presents does sell," all that tract of land, situate, &c., containing about one hundred and fifty-six acres; and to make to Van Scoten, on or before the 1st of April thereafter, a good and sufficient warrantee deed, in fee simple, free from incumbrances; possession to be given on the said 1st day of April. And Van Scoten, "for and in consideration of the above tract of land," covenants and agrees to pay Albright $1850 in cash, and to give him possession of a certain pleasure wagon valued at $80: "the payments to be made as follows: $200 on or before the first day of April then next ensuing; $400 on the first of April, 1845; the balance of the purchase money to be paid in installments of $200 a year for each and every year, all with interest, until all is paid ;" and for the performance of the agreement the parties bound themselves each to the other in the penal sum of $500. The wagon was delivered at the execution of the agreement. On the first of April thereafter, Van Scoten tendered the $200, which by the agreement was to be paid on that day, and demanded the deed and possession; and the bill says, he at the same time offered to give his promissory notes to Albright, for the payment of the several sums of money, the residue of the consideration, in the sums, and payable at the times, respectively, mentioned in the agreement; or to leave the agreement in full force for the payment of the said several sums; and that Albright refused to deliver the deed and possession. The bill states that Albright demands a mortgage on the premises for the consideration. The bill prays the specific performance of the agreement.

The answer admits the agreement, and states that during the negotiation, it was understood and agreed by and between the parties, that the balance of the consideration, beyond the