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ble twelve months after date. Both Stout's answer and the answer of the Coopers concur, that a note for $200 of the consideration money was given payable in eight months. It is sufficiently clear, then, even without the answer of the Coopers, though I see no objection to considering that, in reference to this matter at least, that at the giving of the deed two notes, of $200 each, were given by Stout, one payable in eight months and the other in a year. It follows that no note of $200 was then given payable in thirty days; for the whole consideration money was but $500.

Stout's answer, if it is to be taken as saying that a thirty days' note for $200 was given at the time of the sale, is not according to the fact. This is a very controlling consideration in the case. Two notes, for $200 each, i. e. for $400 of the said consideration money, were given, both dated July 24th, 1834; one payable in eight months and the other in a year. There is now exhibited on the part of Stout a note dated July 25th, 1834, to Prudence and John A. Cooper, for $200, at thirty days, with interest. This note must have been substituted for one of the other two $200 notes.

When was this done? and for what purpose? Was it done on the day of the sale? Why make any change then in the notes? If Stout, after giving the other notes, thought he could pay $200 in thirty days, was he so apprehensive that the money would not be received before it was due that he insisted on changing one of the $200 notes to a thirty days' note? Was this change made before Stout was served with the injunction, or before he received the notice from the complainant before referred to, given September 1st, 1834 ?

Three receipts are produced, one signed by Prudence Cooper, on the back of a note made by Stout, dated July 24th, 1834, to Prudence Cooper, for $100, payable one day after date; which receipt is dated July 26th, 1834, and is in full for the note; another of the receipts is on the back of the thirty days' note, and is dated August 26th, 1834; and the third receipt is a loose receipt signed by Prudence Cooper, for $127 65, to be credited "on a certain note held by her against Stout for the sale of land;" this receipt is dated August 30th, 1834. All three of these receipts are dated of days prior to the 1st of September.

There is a singularity in this matter well calculated to induce a severe scrutiny of the transaction; and I feel that I am in very little danger of coming to a wrong conclusion in saying that these papers were not made till after the 1st of September, and perhaps not till after the injunction was served. If I am right in this, the next question is, for what purpose was the change made in the note of $200, and for what purpose were the receipts given? It could only be for the purpose of making a case against the complainant; and this was an object in which the executrix at that time, from the admissions in her answer, would naturally join.

Did Stout pay the monies for which these receipts were given? If the change in the note was made for a purpose, and evidence of the payment of it was necessary for the same purpose, and both parties were acting with a common design, very little reliance is to be placed on the receipts as evidence of actual payment of the monies. But if, as I think sufficiently appears, this change in the note and these receipts were not made till after September 1st, 1834, then Stout paid after sufficient notice to put him on inquiry; and the payment after notice and the giving and taking receipts dated of a day prior to the notice is, of itself, strong evidence of bad faith in the original matter of the sale and purchase.

In a case like this, where the devisee making the deed was also executrix of the will, and as such, if the personal estate was insufficient to pay, should have applied for an order to sell land to pay the debts, but omits to do it within the year, and then, as devisee, makes a deed for the lands to another, and has not even applied what personal estate there was towards paying the debts, but has converted it to her own use, there is a clear breach of duty and want of good faith in the devisee and executrix in making the sale or deed; and the court should be well satisfied of the bona fides of the grantee in taking the deed. In this case, the circumstances and proofs, even without the aid of the testimony of Mrs. Cooper and Mrs. Stout, which was objected to as incompetent, are too strong evidence of the bad faith. of Stout to permit the lands and the value of them to be withdrawn from the creditors of the testator.

But I can see no objection to the testimony of Mrs. John A.

Cooper; and if that be admitted it shows that Stout got from Mrs. Prudence Cooper one of the original $200 notes and a loose receipt besides, after the injunction had been served on him. Her testimony, altogether, goes to show that the exchange of notes and the taking of the receipts was to enable Stout to make an answer to the bill.

As to the testimony of Mrs. Stout, it may be that some parts of it should be excluded on the ground that, at the time of the .transaction she speaks of, she was the wife of Stout. But there are some parts of her testimony which, it seems to me, would not fall within that rule; and inasmuch as I do not think her testimony essential to the conclusion at which I have arrived, I do not think it necessary to examine particularly the admissibility of the different parts of her evidence. Nor do I see that in a case like this the answer of the Coopers is to have no weight. The bill charges the Coopers and Stout with a common design, by the conveyance of the property to Stout, to defeat the creditors; and it puts them all to answer. The Coopers admit it. This is certainly evidence that they, the Coopers, had such a design; and this design on their part furnishes a reason why they might be willing to sign their names to receipts to be used by Stout in aid of their design. But, to proceed a step further, if a bill charging such a design between a grantor and grantee charges that no money was paid, and the grantor admits it, and the grantee says there was, may not the admission of the grantor be considered by the court, in aid of other facts and circumstances going to discredit the answer of the grantee? I think it may. The grantor was bound to answer the bill, as well as the grantee. The answers will agree or disagree. If the grantee says there was money paid, and the grantor admits there was none paid, certainly the case is not so strong in support of the deed as if both had answered that the money was paid. In weighing the testimony as to the fact this disagreement may be put in the scale."

I have gone carefully over the answers and the testimony inthe cause, and I am constrained to say that it appears strongly to me that the case made by the bill is sustained.

As to the objection that Daniel Horton's representatives should have been made parties, I do not think it is well taken. It is

evident he was but a surety on the bond, and this is a bill to subject the lands that were of the principal obligor to the payment of the debt.

On the whole, I think the deed must be declared void, and the lands held liable for the payment of the debt.

BRISLEY V. JONES.

A. having recovered a judgment at law against B. and issued execution which was returned "no goods or lands," filed a creditor's bill against B., which, after answer, was dismissed with costs. Held, that the judgment at law could not be set off against the costs of B. on the creditor's bill.

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BRISLEY recovered a judgment at law against Jones, and issued execution thereon, which was returned "no goods or lands ;" and thereupon filed a creditor's bill against Jones which, after answer, was dismissed with costs.

Brisley now moved that his judgment at law be set off against these costs.

P. D. Vroom, for the motion, cited 13 Wend. 649; 16 Ibid, 446; 1 John. Ch. Rep. 91; 6 Ibid, 317; 3 Halst. Rep. 172.

S. R. Grover, contra, cited 2 Bl. Rep. 869; 2 N. Y. Term Rep. 105; 1 Paige, 622.

THE CHANCELLOR. The bill goes on a charge of fraud, a charge that the defendant has property which he secretes and refuses to apply to the payment of his debts; and calls for an answer and discovery.

If there is no ground for such a charge, the defendant should not be subjected to the payment to his solicitor of the costs of resisting it. Mere experiment by the creditor would be encouraged if his judgment at law would protect him against the payment of costs to the defendant.

Motion denied.

SARAH BAYLES, wife of WILLIAM BAYLES, by her next friend, v. ISAAC STAATS.

A trustee who from long continued intemperance has become unfit to have the charge of the trust property will be removed, and a new trustee will be appointed.

THE bill states that Abraham Staats, the complainant's father, since deceased, by his will, dated August 17th, 1819, did devise and bequeath, among other things, as follows: "Fourth, I give and bequeath all the other half of my farm whereon I live to my five daughters, each share and share alike, their heirs and assigns. Seventh, my will is further, and I do order, that the legacy I left to my daughter Sarah, the wife of William Bayles, in this my last will, both real and personal, shall remain in the hands and possession of my executors hereafter named, and they to pay my daughter Sarah a reasonable support out of the same yearly during the life of her husband, William Bayles; and after his decease she to occupy and possess the same as it is ordered in my will; but if she should die before her husband, William Bayles, and leave her child, in that case I do order the said legacy left as aforesaid shall remain in the hands of my executors or the survivor of them for the use of the child; if the child die before the age of eighteen years without issue, then the same to return to my estate and be divided according to law."

That Isaac Staats and John Frelinghuysen were appointed executors, and duly proved the will and took &c. That Margaret, one of the testator's daughters, subsequently died leaving a will, dated August 30th, 1821, of which she appointed the said Isaac Staats executor, who proved the same and took &c.; by which will of the said Margaret it was, among other things, provided as follows: "First, I give and bequeath all the land that comes to my share of my father's estate to my four sisters, all to share equal. Second, I give and bequeath to my sister Sarah one hundred and fifty dollars, with all my wearing apparel. Fifth, all the residue of my estate, after payment of debts, I give and devise to my brother and four sisters, equally

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