notice. The case of Dearle v. Hall, 3 Russell 1, is authority for the complainants in this case. One having a beneficial interest in money in the hands of trustees assigns it to A., but no notice of the assignment is given to the trustees; he afterwards proposes to sell the same interest to B.; B. inquires of the trustees as to the nature of the title and the amount of the interest, and receiving no intimation of any prior incumbrance, completes the purchase and gives the trustees notice. It was held, and I think rightly, that B. had a better equity than A.

For myself, I should be satisfied to let the result to which I have come in this cause rest on the ground on which, thus far, I have put it. But, perhaps, it is the duty towards the parties, of a court whose decisions are subject to the review of a higher tribunal, to state every view that occurs to it which may have an influence on the decision of the cause, one way or the other. This is a case which, in view of the facts as they are claimed to exist on the part of the defence, may be said to be of a very extraordinary character; so much so as to impress the idea that the defence should be examined with care. The view to which

I have alluded as being proper to be suggested respects the answer of the defendants. It appears to me there is an evident halting in it as to several important matters. They say that, on the 26th August, 1836, they released the lot secondly described in their mortgage, to the owners thereof according to law, from the operation and lien of their mortgage; and that the said release was made with the knowledge, approbation and consent of A. Peck and of Samuel Condit. That afterwards, on the said 26th August, 1836, Condit made and entered into an agreement in writing, under his hand and seal, to and with the defendants, dated the day and year last aforesaid, whereby he stipulated and agreed, for the considerations therein named and referred to, to and with these defendants, that the said Dodd mortgage should be considered and held as the first lien on the land described in the mortgage to Condit, as by the said agreement, now in the posession of these defendants, will appear. That the said agreement was made and entered into by Condit with a full knowledge that these defendants had made the said release. In a subsequent part of the answer they say, that the said agreement was

made and entered into by and between the said Samuel Condit and these defendants, with the full knowledge, consent and approbation of the said A. Peck, William Peck and Elijah C. Pierson, at the time of the making thereof.

On looking at the writing called the agreement of Condit, we find it makes no reference whatever to the release given by these defendants. It states the two mortgages, and that he, Condit, has agreed, for certain good causes and consederations, to give priority in payment to the Dodd mortgage; and then declares, that in consideration of the premises and of $1, to him paid, (without saying by whom,) he has thereby consented, covenanted and agreed to and with the said administrators of Dodd, that the Dodd mortgage shall be considered and held as the prior lien on &c. This writing is signed by Dodd only. The release executed by these defendants recites that A. Peck, on the 1st May, 1830, had executed and delivered to Samuel M. Dodd a bond and Mortgage for $2400 and interest on certain premises in Orange, one of which is a lot &c; (describing the second lot mentioned in that mortgage ;) and then declares that they, for a good and valuable consideration, and of $1 to them paid "by John Peck the present owner of the said lot," release the same from the operation of the said mortgage. The two instruments are separate and distinct from each other, neither having any reference to the other. Now, as to the character of the answer, it is to be remarked, first, that it does not allege that there was any connexion between the two writings, or that one was executed in consideration of the other. It is, indeed, inconceivable how a release by the holders of the Dodd mortgage, to John Peck, of a lot covered by that, the subsequent mortgage, which the Condit prior mortgage did not cover, could be a consideration for Condit's giving priority to the subsequent mortgage over his, on the only lot his mortgage covered, the only security he had. There is something in that which ordinary men, dealing upon ordinary principles and motives, can not understand. But Condit's agreeing and covenanting, that the subsequent mortgage should be considered and held as the prior incumbrance on the lot covered by the first mortgage, might be an inducement or consideration for the holders of the subsequent mortgage to release from its

operation the lot covered by it which was not covered by the first mortgage. But, if that agreement was the consideration of the release, it is extraordinary that it was not stated in the release; and still more extraordinary that it was not so stated in the answer to be sworn to by these defendants.

Again, the answer does not state that these defendants were, or that either of them was present when Condit "made and entered into" the agreement, (to use the language of the answer,) nor that there had been any previous negotiation between Condit and them, or either of them, in reference to the subject matter of the release and agreement, or either of them. If the two were connected, and the release was given by these defendants in consideration of Condit's writing, called the agreement, the counsel for these defendants would certainly have obtained that information from the defendants: he could not have failed to make the inquiry. And, if he was so informed, it is not conceivable that the astute draftsman of their answer could have put the answer in the shape he has given it.

Again, it is not alleged in the answer that the writing called Condit's agreement was delivered to these defendants. A slight reading of the answer might make the impression that it was delivered to the defendants. The making the agreement, or writing called an agreement, is spoken of in several different places in the answer; but in each of them there is an absence of the allegation of delivery, a circumstance which we have not a right to overlook. In each of the different places the allegation is, that Condit made and entered into an agreement to and with these defendants. This seems to be going far for the defendants to swear to, if they were not present at the time the writing was made, and it was not delivered to them; for an agreement in its proper legal sense requires the mind and assent of two persons. A reference to the language of the answer and of the writing itself will show on what ground the language of the answer was adopted. The answer says, that he, Condit, made and entered into an agreement in writing, under his hand and seal, to and with the defendants. By turning to the writing we find that the answer uses the language and form of expression of the writing. The writing says, Be it known &c., that I have consented, cov

enanted and agreed to and with C. and J. Baldwin and J. Dodd administrators, &c. The answer says, he, Condit, made and entered into an agreement to and with &c.; and in this form the defendants swear to the answer. We are not at liberty to say, under these circumstances, that the defendants intended to say, or that the draftsman supposed they would be understood as saying, by the language adopted, either that the defendants were present when the writing was made, or had ever made any negotiation or arrangement for such a writing, or that that writing was delivered to them. Indeed if they had, and the writing had been delivered to them, it is hardly supposable that they, having executed a release of the other lot, would have been satisfied to let the registry remain as it was. If the writing was delivered to them, and they were satisfied to let the registry remain as it was, they must be considered as relying on the covenant of Condit. But the only thing like an allegation of delivery in the whole answer is the allegation that the writing "is now," that is at the time of making the answer, in the possession of these defendants.

But I am glad that I have been able to decide the cause very satisfactorily to my own mind, by the application of a just and equitable general principle; and have not been obliged to put the decision of a case so unexampled in some of its features on the defects in the answer on which I have felt it my duty to make the foregoing comments.

I am of opinion that the complainants' mortgage is entitled to preference.

Decree accordingly.

LEWIS F. R. GREGORY V. RICHARD STILLWELL and PETER P. BROWN.

Bill for specific performance, and injunction thereupon. Extension of time for making payments. Injunction dissolved on answer.

As a general rule, an injunction will not be dissolved without the answer of the defendant on whom the gravamen of the bill rests. But if the answering defendant is able from his own connection with the subject matter and consequent knowledge, to lay the facts before the court which shew that the complainant has no equity, the injunction may be dissolved without the answer of such other defendant.

The bill, exhibited by Lewis F. R. Gregory, June 8, 1846, states that Ebenezer B. Gregory, by two deeds, one dated September 27, 1839, and the other dated November 6, 1839, sold and conveyed to the complainant several tracts of land in the township of Jefferson, county of Morris; and the township of West Milford, county of Passaic; three of which are described in the bill, one situated at New Foundland in the township of West Milford, county of Passaic, and the other two situated at New Foundland, and each partly in Morris and partly in Passaic county; and that, by virtue of the said conveyances, the complainant entered into and possessed the said lands and premises. That there is on the premises a valuable forge and iron works in full operation. That on the 12th November, 1839, Richard Stillwell recovered a judgment, in the Supreme Court of this State, against the said Ebenezer B. Gregory, for $350 88 damages and $33 26 costs, and that, thereupon, a fi. fa. was issued to the sheriff of Passaic, under which the said lands were sold and bought by Stillwell, on the 25th August, 1840, for $10, and a deed therefor made accordingly, by the sheriff to Stillwell. That Stillwell, by virtue of the said deed, claimed to have title. to all the said tracts, as well the part thereof situated in Morris, as the part thereof situated in Passaic. That the complainant, for the purpose of quieting the said claim of Stillwell, and of procuring a complete and proper title for the said premises, proposed to Stillwell to buy of him all his right and title thereto;