Dunnell v. Henderson.

1856. There is no such credit. If it is intended to be the rent credited September 28th, 1855, the exception depends upon the time during which the new paper and drying machine and the new engines, had been in use in the mill. If they had been in use for the whole of that year, the credit should have been at the rate of $1500 per annum, or $1112, not $1391, as claimed. But it nowhere appears that they had been completed and in use from January 1st, 1855, and therefore no error appears in the master's account.

The item of $506.12, or Lyon's bill for repairs to boiler, in the seventh exception, was for work done after the final dissolution of the partnership, and ought not to be allowed; the partnership took the mill as it was, and were not bound to leave it in good repair. It does not appear that the other items excepted to were allowed by the master, and if they were the evidence does not show them erroneous.

The remaining exceptions seem to be a presentation of the same grounds that I have considered, in a new form, except the division of $10,000 as profits, which was not before presented. The evidence is, that there were profits, and the result of the account, as stated by the master in schedule, shows that there must have been profits. Each partner had been credited with the capital contributed, and had drawn it out in full; each had also been credited with $5000 profits. The amount then due from Dunnell added to the amounts afterwards paid out for him, and the assets on hand and collected, seem to be sufficient to pay the amount due to Henderson, so that if Dunnell is able to pay his indebtedness the firm would be solvent.

But if no profits had been earned, as all the capital had been repaid, this error would make no difference in the result; if that allowance were deducted from both accounts it would make Dunnell's debt $5000 more than stated, or $7897.73, and Henderson's credit $5000 less, or $953.98, and these, added and divided equally, would make the debt of the complainant to the defendant, on November 8th, 1855, $4425.86, precisely as in the master's report.

The exceptions must all be overruled.

Evans v. Evans.

JACOB L. EVANS vs. WILLIAM B. EVANS and SAMUEL B. EVANS.

WILLIAM B. EVANS and SAMUEL B. EVANS vs. JACOB L. EVANS.

Where the chief matter in controversy in two suits between the same parties is the same, and if that was settled there would be no substantial difference between the parties, and no possible injury can result, an order will be made that the testimony taken in either suit may be used in the other, and that the hearing of both shall come on together.

On motion on behalf of William B. Evans and Samuel B. Evans, that the evidence taken in either one of these suits may be used on the hearing of the other, and that the twosuits may be heard together.

Mr. F. Voorhees, for motion.

Mr. Merritt, contra.

THE CHANCELLOR.

The parties are all executors of the will of their father, Thomas Evans, deceased. The controversy in both suits arises out of the will of their testator, and the chief, if not the only matter in controversy in both suits, is the same. The dispute is, whether the testator had, in his lifetime, given to his son Jacob, with whom he resided, the stock and implements on his farm. If that question was settled, there would be no substantial difference between the parties.

Courts of equity have, in the exercise of their discretion, gone far in making orders respecting the conduct of suits situated like these, for the purpose of shortening litigation, and putting an end to expense. I see no possible injury that can result to either party from the order applied for. The parties being the same in both suits, each will have the full

Pond v. Causdell.

benefit of cross-examination of the witnesses of the other, and both will be fully heard upon every question in each suit at the final hearing.

An order that the testimony taken in either suit may be used in the other, and that the hearing of both should come on together, must be made.

POND vs. CAUSDELL.

1. In a suit to foreclose a mortgage whereon, at the making of the loan, twelve per cent. interest was demanded, and agreed to be paid, and at the expiration of the first six months, interest at that rate was paid and received as the interest for that time, the principal only, less the excess of the amount so paid above the legal interest, can be recovered, and that without interest or costs of suit.

2. The mortgagee is bound to pay the tax on his mortgage, and cannot recover it of the mortgagor.

This case was submitted without argument, upon pleadings and proofs.

THE CHANCELLOR.

The bill is to foreclose a mortgage for $2500. The answer admits the loan and mortgage, but sets up that at the making of the loan, interest at the rate of twelve per cent. per annum was demanded and agreed to be paid, and that at the expiration of the first six months $150 was paid and received as the interest for that time. This defence is fully proved. The complainant can only recover the principal, less $62.50, the excess of the $150 paid above the legal interest, and that without interest or costs of suit. A collector's receipt for the taxes paid by the complainant on the mortgage, is offered in evidence and handed up with the papers. I cannot conceive for what purpose. The complainant is bound to pay the tax upon this mortgage, as well as upon his other property, and there is no obligation in law upon the defendant to repay it.

Jobbins v. Montague and Albertson.

Had she paid it, the amount, like any other illegal premium, must have been deducted from the principal, but I find no evidence that she has paid it.

Let there be a decree in favor of the complainant for $2437.50, principal, without interest or costs.

JOBBINS vs. MONTAGUE and ALBERTSON.

1. Bill by assignee in bankruptcy, to have a deed given by the bankrupt to A., declared void, and the true amount due on a mortgage given by him to M., alleged to be fraudulent, ascertained; and that the complainant may be allowed to redeem, or the mortgagee be decreed to assign, upon payment of that amount to him; and that the decree obtained in a foreclosure suit upon the mortgage, may be opened, and the sale under the execution issued in it stayed by injunction. The court held that the injunction which had issued upon filing the bill must be dissolved at the end of thirty days, unless the mortgagee should, within that time, on tender of the amount of his debt, interest, and costs, refuse to assign his mortgage, decree, and execution to the complainant; or, if he is not provided with funds to redeem, he may, at his election, have the injunction dissolved as to the sale, and have an order to compel the sheriff to pay all the proceeds of the sale, above the debts and costs of M., into court, to be disposed of on application for surplus moneys.

2. A. not having answered, the allegations in the bill were held sufficient to sustain an injunction against paying over any of the proceeds of sale to him.

On motion to dissolve injunction, made upon bill and

answer.

Mr. Pultney, (of New York,) for motion.

Mr. Dixon, contra.

THE CHANCELLOR.

The complainant is the assignee in bankruptcy of I. P. Browner & Co., appointed by the District Court for the Southern District of New York, on application of a creditor,

Jobbins v. Montague and Albertson.

on petition filed January 13th, 1870. Townsend Jackson, one of the firm, had owned real estate in Hudson county, in this state. This, on the 15th of June, 1869, he had mortgaged to the defendant, Montague, for $10,000, and on the 24th of November in that year, had conveyed to the defendant, Albertson, subject to that mortgage. The complainant was appointed assignee on the 18th of February, 1870, and the bankrupts' assignment of all their estate to him was recorded in the Hudson county clerk's office, June 24th, 1870.

Montague filed a bill in this court to foreclose his mortgage October 17th, 1870, and made Jackson and Albertson parties, but did not make the complainant, the assignee in bankruptcy, a party.

An order was made in the United States District Court in New York, on the suit of Jobbins as assignee, against Albertson and others, appointing Jobbins receiver of this real estate in New Jersey. This order was served upon Montague October 11th, 1870, six days before his bill of foreclosure was filed. The final decree in the foreclosure suit was made February 17th, 1871, for sale for payment of $10,791, then due on the mortgage, with costs.

The bill in this case alleges that the mortgage to Montague is fraudulent, that it was given without consideration, in part or in whole, and that the deed to Albertson was given when the firm was insolvent, and the insolvency known to Albertson, and is without consideration. It prays that the deed to Albertson may be declared void; that the true amount due on the mortgage to Montague may be ascertained, and that the complainant may be allowed to redeem or Montague be decreed to assign upon payment of that amount to him; and that for this purpose the decree in the foreclosure suit may be opened, and the sale under the execution issued in it stayed by injunction.

The answer of Montague is full upon all the charges against him and his mortgage. It alleges that the mortgage was given for cash loaned, and actually advanced, six months before the filing of the petition in bankruptcy, and without any knowl