M'Donald v. Neilson

2 Cow. 139

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: December 15, 1823
• Status: Published

Opinion

Woodworth, J.

The object of the bill is, to be relieved against a bond and mortgage, given by the respondent to William M’Donald, and a note of fifty dollars to Seth Eddy

Object of the bill.

The appellants are charged as parties to a fraudulent combination to oppress the respondent, by the sacrifice of his property at a Suetiff’s sale, in order to indemnify themselves for certain debts against John Neilson, jun., a son of the respondent.

The charges of the bill.

On the 22d Nov. 1819, the appellants and others attended the sale, when personal property to a large amount was sold by Griffeth, and purchased chiefly by M’Donald and Eddy. It is not necessary to occupy time, by a minute statement of facts. I shall merely observe, that the respondent was a man in affluent circumstances, having a large real and personal estate of from 12 to $15,000. The amount of the execution was 8480 83. It appears that the respondent requested Griffeth, the officer, to delay the sale, until he could send about three miles and procure the money; Griffeth declined taking any thing but specie. The respondent then offered to pay in specie the next day, or as soon as a person could go to Waterford and return: security was offered for the performance. These propositions were rejected on the ground, that M’Donald insisted on an immediate sale, although the execution had been hut a few days in the officer’s hands. M’Donald, in his answer, admits the demand of specie was with the view of preventing the respondent from obtaining the means of satisfying the execution, with as much facility . is he otherwise might have done, an¿ w¡th the view of making advantageous purchases, in the hope of saving a large amount due to him from John Neilson, jun. ; believing that the respondent had fraudulently combined with his son, to prevent the collection, and was morally bound to refund the avails of a raft, of which he fraudulently got possession. After selling the out door property, and when the officer was about to commence the sale of the furniture, the respondent was prevailed on by the advice of his friends, and in order to prevent a further sacrifice, to make an accommodation, by which $2500 was secured to M’Donald in satisfaction of the execution and his debt against John Neilson, jun. The property sold was then given up.

Statement of the facts"

Whether the be upheld.

take necessary lawful means to secure debt.

But time, place, manner. of sale, in his discretion.

Not to obey one party, so as to oppress the other.

I have thus glanced at the material facts ; the question is, can a contract, entered into under such circumstances, be upheld in a Court of Equity 1 I am clearly of opinion it cannot, without overruling long established and well settled principles, hitherto considered of vital importance to protect against that species of oppression, which is sought to be justified under the forms of law. With respect to Griffeth, certain duties devolved on him as a public officer; he was undoubtedly to take all necessary and lawful means j.Q comp]y with the exigency of the writ, and thereby to secure to the plaintiff in the execution, the fruits of his recovery. As to time, place and manner of sale, a sound discre- ... " . „ _ . tion was vested m him ; but in full confidence that it would not be abused. It is indispensably necessary to the due administration of justice, that the exercise of this discretion should never be under the direction of one party, so as to oppress and bring ruin on the other. The officer is bound Cí . ° to consult his own judgment, to act firmly, but temperately, and in no case can he, without just reprehension, lend himself to the views of either party, or become the instrument to avenge their real or imaginary wrongs.

Officer’s con-able, wanton, excuseTbyordors.

The conduct of the officer was altogether unjustifiable, wanton and oppressive ; it is neither palliated or excused, by proving that he acted under the orders of the plaintiff , in the execution. After property, valued at $1200 and upwards had been sold for $300, a suspension takes place, the negotiation is concluded and the mortgage given. Did the parties treat on equal terms ? Was the respondent under no' restraint ? Was he induced to compromise to save his property from further sacrifice? It seems, to me, there can be but one opinion on this subject. If so, can a lawful contract be upheld by such means ? Here was a pressure upon distress, which, in the view of a Court of Equity, entitled the respondent to relief.

The bond and mortgage must stand as a security for the amount due on the execution, with interest to the time of tender. It is scarcely necessary to cite authorities to prove, that where advantage is taken of the party’s circumstances, *“■' xv y so that he acts not voluntarily but under necessity; where a deed is obtained by undue influence, and the process of law abused, a contract resting on such a basis cannot receive the countenance of a Court of justice. (Nichols v. Nichols, 1 Atk. 409. Thornhill v. Evans, 2 Atk. 330. 1 Mad. 243. Gould v. Oxenden, 3 Bro. P. C. 560. Thornhill v. Evans, 6 Bro. P. C. 614. Lamplugh v. Lamplugh, 1 Dick. 411.)

Securities to -stand for debti

Advantage ta-k.en of Party’s circumstances &c., a cause to j^o^side con"

But it is contended by the appellants, that the mort1 , gage ought to stand as a further security, on the ground that the respondent, after notice of M’Donald’s equitable interest, fraudulently interfered and prevented his receiving the avails of the raft. The first objection to this is, that the claim for the raft is not in issue between the parties, on the pleadings in this cause. The bill is silent on this subject. The answer of M’Donald professes to state the evidence given on the trial of the suit in replevin; and, among other things, alleges, that the defendants proved that John- Neilson, jun., in 1816, sent a raft to New York worth 1000 or 1200 dollars, which he had contracted in writing to deliver to M’Donald, in part payment of the debt due to him; that the raft had been withheld from him by the respondent, who received the avails; and that on a trial of an action of trover against Hewit, John Neilson, jun., testified that the respondent was to pay out of the avails, certain debts, amo ig which was a debt due to Rockwell and Stebbins. In another part of the answer, M’Donald states, that his conduct at ^ gaje was in the hope of saving a portion of the debt due to him from John Neilson, jun.; but it is no where ■ averred, that the respondent in this cause was bound to account for the raft, nor is it urged a% a ground of equity, that the bond and mortgage should stand as a security for the same.

t Whether mortgage to stand as secucf raft,r&c 31,8

Not Issue

teriti^allegation should be put in issue.

It is impossible, from the scope of the answer, to make out that any such claim was relied on in this cause. The proof given on the trial at law, and the belief that the respondent had fraudulently combined, are suggested as justifiable grounds, in the opinion of M’Donald, for pursuing a rigorous course at the sale, and for believing that the respondent was morally bound to .account for the raft. These facts are introduced with others, to show the motives which governed the appellant. The respondent could not consider himself called on to admit or deny this statement. It Was hot put in issue. The respondent has not gone into any proof respecting the raft, nor the former trial; reposing himself, as he well might do, that by the pleadings they were not drawn in question. The rule laid down in James v. M’Kennon, (6 John. 564,) is, that “ every ma-tel'ia^ allegation should be put in issue by the pleadings, so that the parties may be duly apprised of the essential inqyjry; anc[ toay Ijq enabled to collect testimony, and frame interrogatories in order to meet the question.” So also in the case of Stewart v. The Mechanics and Farmers Bank, (19 John. 505,) it is laid down as an undeniable principle, that the decree of a Court of Equity must be founded oh some matter put in issue between the parties. It is bound to decide according to the allegations and proofs, as much as a Court of law.

But admitting the claim for the raft is sufficiently alleged to call on this Court for an opinion, whether the bond and mortgage shall stand, as a further security, for whatever may appear to have been received by the respondent, I will next examine its validity. The claim is for unwarrantably, interfering, so as to prevent a delivery of the lumber.' Could M’Donald maintain an action at law to recover damages ? I apprehend not, for he never acquired title to the property. His claim rested on an executory contract, made with John Neilson, jun. In M’Donald v. Hewit, (15 John. 349,) the Supreme Court held that the contract was executory, and did not vest the property; and therefore the plaintiff could not maintain trover for the conversion. The right of action would be against John Neilson, jun. The case appears to be this: the father interfered and caused the fund which the debtor had stipulated to be applied to M’Donald, to be diverted and paid to other creditors. I think the conduct of the respondent was reprehensible; but the question is, has the law provided a remedy for the act? It is not included within the legal notion of fraud. I have not been able to discover any authority that establishes a liability in such a case. None was adduced on the argument. From the acquiesence of M’Donald, after the decision in the cause against Hewit, and no attempt to sustain a prosecution against the respondent, it may be inferred, that a recovery was considered hopeless.

John Neilson, jun., testifies, that although the interference of his father was without his authority, yet he afterwards approved of it, and that the respondent has paid to his creditors much more than the avails of the timber. It is true,‘that on the trial against Hewit, he testified that the debt of Rockwell and Stebbins was to be paid by the respondent, and on the subsequent trial, he does not prove that fact. If his testimony is impeached in this particular, the appellant has had the benefit of it in the replevin suit, in whiehrhe succeeded. The execution in favor of Rockwell and Stebbins was held to be fraudulent, and probably on the ground that the respondent had paid that execution, with money received on sale of the timber.

Is, then, this claim respecting the raft, for which M’Donald could not sustain an action either at law or in equity, as plaintiff) capable of being now resuscitated and enforced as an equity, which the respondent is bound to satisfy ?

It cannot be viewed in the light of a set off. To constitute that, there must be mutual debts. (Montagu, 17.) A Court of Equity follows the same rules as a Court of Law, as to set off. The debts must be between the parties in their own right, and must be of the same kind or quality, and be clearly ascertained or liquidated. (Duncan v. Lyon, 3 John. Ch. 359. Ambler, 407. 3 Caines, 84. 2 John. 150, 155.) We must conclude from the evidence that the avails of the ra^ are not hr the respondent’s hands. Although M’Don-aid. is a sufferer by the interference of the respondent, there seems to be no doubt, that the sum has been fully applied to other creditors. If it be conceded .that M’Donald 1 , . . . could have no redress, suing as a plaintiff, it certainly dis-Poses °f the claim to have the mortgage stand as a security. It would be altogether arbitrary to say, that an injury, for which there is no redress by the laws of the land, should be recognized in equity, as a condition upon which relief will be granted in a case, of itself) not admitting of doubt.

set^fT^here must be mutwten^samé parties in their same1 land or quaiity, and taine’Z aSCet"

equity follows same rule as a to this respeeT

Decree as neo^dy’ err°"

ontotoipíicate him

The decree as to Eddy is erroneous. He attended as a bidder, and had right to purchase and retain his purchase. He cannot be affected by the conduct of the other appellants, unless there is proof of combination between them, for the purpose of sacrificing the respondent’s property. The proof does not rise higher than slight suspicion, and cannot lay. the foundation for a judgment or decree. I will notice the principal facts relied on to implicate "him. Henry Neilson says he was impressed with an opinion, that the appellants were combined together, and acted in concert; but no reasons are given, except that Eddy was present, and one of the purchasers. John Walker says, that from the circumstance of the appellants bidding at the sale, counselling together, and the declaration of Griffeth, that he would be ruled in his conduct by M’Donald, he believed all the defendants acted in concert. Now the premises did not warrant any such conclusion. The fact is neither proved or disproved. Besides, what connection had the declárations . of Griffeth with the question of combination 1 , - *

Walter Broughton says he was in the store of Eddy in the evening of the day of sale—that M’Donald, Livingston and Griffeth came in—that much conversation took place, and the appellants appeared to be gratified at the result of the sale—that he saw money, in gold, pass between M’Donald and Eddy—that Eddy checked the conversation, which the witness thought was out of kindness to his feelings; he being a connection of the respondent by marriage. It would be extremely dangerous, as'well as unjust, without further explanation, to allow such acts and declarations, as evidence of combination.

If the testimony of Griffeth is admitted, it appears that the gold, which passed between him and Eddy, was a repayment of the money bid by Eddy, and paid to the officer. My conclusion, however, from a review of the pleadings and proofs, would not be affected, if the depositions of Griffeth and Livingston are suppressed.

R M. Iiivingston proves, that Eddy offered to pay the amount of the execution, in specie, if his debt of $50, against John Neilson, jun. was secured.

Eddy, in his answer, denies any concert or agreement, or that he attended the sale in pursuance of any arrangement. There is no evidence to destroy this denial, in the answer. The respondent assumed the payment of Eddy’s debt, in consideration of his relinquishing his purchases at the sale. The decree, as to Eddy, should be reversed, and the bill, as to him dismissed with costs. As to the other appellants, it should be modified, by directing that the assignment executed by M’Donald- to the respondent, be delivered up to be cancelled, and that, in other respects, the decree of the Chancellor be affirmed.

Bin should bo £‘™¡ssed as t0 And modified appellants.^”

Sutherland, J.

The merits of this case are in a very narrow compass. The bill, the answers, and the proofs, substantially concur in all the material facts; and the principles of law, which are involved in it, are among the simplest and the best established known in our Courts.

William M’Donald, in October, 1819, obtained a judgmerit, in the Supreme Court, against John Neilson, the respondent, for $480 83. On the 10th of November following he caused an execution, against the property of the respondent, to be issued on the judgment, and delivered to the appellant, William Griffeth, who was then one of the deputies of the Sheriff of Saratoga. It was levied on the 13th of November, upon all his personal property, consisting of cat . tie, horses, hay, grain, farming utensils, and household furniture. Advertisements, in the usual form, were immediately put up, giving notice of the sale, at public vendue, on the 22d day of the same month. The respondent was in the city of New York, when the levy was made, and did not return home until the evening preceding the day of sale. He is admitted and proved to have been a man of large real and personal estate—estimated, by all the witnesses, at from 12 to 18,000 dollars.

Statement of fajudgment— cxecut¡on-ad. vertlsement

Proceedings at

On the day of sale, all the ' appellants went to the house of the respondent, and upon his being informed by Griffeth that he had come to sell his property, he requested a postponement of the sale, as he had not then the money sufficient to pay the execution : and, either at that time, or soon after the sale commenced, requested a suspension for a few hours, until he could send three miles, to the village of Stillwater, and obtain the money. This request was not only refused but he was informed that nothing would be taken in payment but specie. He then offered the most ample security, for the payment of the specie, in as short a time as it could be procured from the village of Waterford, a distance of about 13 miles. K M. Livingston, and others who were present, joined the respondent in his solicitations for delay and offers of security; and remonstrated, in the strongest terms, against the harsh and oppressive proceedings of the appellants. Griffeth, the Deputy Sheriff, submitted himself entirely to the directions of M’Donald, who refused to suspend the sale, or to take any thing in payment but specie. The sale accordingly proceeded, and all the out door personal -property of the respondent, which, at the lowest estimate, is proved to have been worth 1200 dollars, and, at the highest, 2000 dollars, was sold, and bid in by the appellants, for an aggregate amount of less than 300 dollars, leaving 200 dollars still due upon the execution.

Compromise.

In this stage of the proceedings, when the appellants were about entering his house, for the purpose of selling his furniture, the respondent, at the urgent solicitation of his friends, consented to propose a compromise with M’Donald. M’Donald offered to stop the sale, and procure a restoration, to the respondent of all the property that had already been sold, if he would pay him the amount of a judgment which he held against his son John Neilson, jun., for 1600 dollars, and also a note of his son,' for 800 dollars, endorsed by one Jacob Boyce, together with the judgment upon which the sale had taken place ; and the respondent finally consented to give him his bond and mortgage, for 2500 dollars, payable in five annual instalments ; and M’Donald accordingly restored to him the property sold, discharged his judgment, and assigned to him the securities against his son and Boyce. John Neilson, jun., and Boyce are both proved then to have been, and still to be insolvent.

Bond and mortgage of $2500.

R. M. Livingston states, “ that he and the other friends of the respondent, were induced to advise him to settle with the said M’Donald, his demands against the said John Neil-son, jun., by the circumstances, that the property already sold out of doors, and what would probably be sold within the house, would amount to more than M’Donald would demand as a condition of abandoning the proceedings under said execution ; and by the further circumstance, that it was believed, that he might not be able to regain his property, or its value from McDonald, if it should be carried away by him and further states, “ that he believes that the respondent’s principal inducement to make such settlement, was the same as actuated him and the respondent’s other friends in recommending such settlement.”

Upon this simple, naked statement of facts, (excluding, for the present, all consideration of the equitable claims which M’Donald alleges he had against the respondent,) can any man hesitate to say, that this sale was most oppressively conducted, for the express purpose of compelling the respondent to assume the debt of his insolvent son, which he was under no obligation, either legal or moral, to pay? and are not the common sense and the in stinctive feelings of every man outraged, by the allegation, that the respondent freely and voluntarily executed the bond in question ? He was under a species of duress which left him no volition.

(b) He was compelled to elect between the sacrifice of his whole personal estate, and the giving of the security. If the appellants had a right to put him to that election, he must abide by it. But, in my judgment, there must be a lamentable defect in that system of laws which sanctions such proceedings ; and, if 1 do not much deceive myself, I shall be able to vindicate the system, which we have the honor to administer, from so serious an imputation.

Sale was oppressively conducted to compel respondent to assume debts of his son.

The object of M’Donald, in refusing a postponement of the sale, and demanding specie in payment of the execution, and of the bids which were made, is perfectly apparent upon the face of the transaction. It is not pretended, that any apprehension was entertained, that the property would have been removed, if the sale had been postponed, or that the security offered was not ample and unquestionable, or that the paper currency of the country was so depreciated or uncertain in value, as to render it unsafe to receive it in payment. But the motives of M’Donald are not left to be gathered, as a matter of inference. He has boldly avowed them in his answer. “ He admits that he did require payment in specie, at the sale, with the view of preventing the respondent from obtaining the means to satisfy the said execution, with as much facility as he might, perhaps, otherwise have done, and with the view of making advantageous purchases thereat, in the hope of thereby saving a portion of the large amount justly due him from the said John Neilson, jun., (defendant then and still believing that respondent had fraudulently combined with said John Neilson, jun., to prevent defendant from collecting the same.)” It stands, then, admitted upon the ' case, that the sale was conducted in a rigorous and unusual manner, not for the purpose of obtain-. ing satisfaction of the execution, but of obtaining payment or satisfaction of a debt against a third person.

Whether a sale upon a fi. fa. otherwise legal, is affectgli^urposé'for which it is made.

The question then is, whether, admitting that the sale cou¡¿[ not have been impeached, if this fact had not appear-x * ±x ed, it is affected by tl ie illegal purpose for which it was made; f°r: if the sale was, in judgment of law, fair and legal, and vested M’Donald with a title to the articles purchased by him, then, undoubtedly, the restoring those articles to the respondent, affords a good consideration for the bond which he gave. But, in my judgment, the sa.e was fraudulent, and passed no title to any party to the fraud, in any article purchased at the auction. I shall assume, for the present, (what I think is incontestably established by the proof,) that Griffeth and Livingston, at least, perfectly understood the object of M’Donald, and lent themselves to the consummation of his purpose. It presents, then, the case of a combination or conspiracy, between the plaintiff in an execution, and the officer who is to execute it, so to conduct the proceedings under it, as to render it difficult, if not impossible, for the defendant, with the most abundant means, to pay it; and so as to prevent the possibility of competition at the sale, for the avowed purpose of producing a sacrifice of the defendant’s property, and enabling the appellants to make advantageous purchases. Can there be a doubt, if the sale had proceeded, and no compromise had taken place, and the respondent had filed his bill for relief, that the Chancellor should have set aside the sale, as fraudulent, so far as the appellants were the purchasers, and have compelled them, upon receiving the amount of their debt, to restore the property purchased to the respondent, or if they had parted with it, to pay him its full value?

The case of Lord Cranstown v. Johnston,(c) is a direct authority to this point. In that case, Johnston, having a just debt of £2500, against Lord Cranstown, and not being able to obtain satisfaction of it in England, instituted proceedings against him in the island of St. Christophers, where he had an interest in a valuable estate. He obtained a judgment against Lord Cranstown, under which he caused his interest In the estate to be sold, and became himself the purchaser, through the medium of his agent. The proceedings were admitted to have been in strict conformity to the law of the island, and to have vested in Johnston the legal estate in the property purchased. Lord Cranstown filed his bill for relief against the sale, and prayed a re-conveyance of the estate, upon payment of the debt and cost to Johnston.

Case of Ld. Cranstown v Johnston stated.

He founded his claim to relief r pon several grounds:

1. That when the suit was commenced, he was not personally resident in St. Christophers, was never served with process, nor appeared in the cause.

2. That when the suit was instituted, he was in treaty with the defendant, for securing the debt—that notwithstanding the treaty, the defendant directed the proceedings, to procure an absolute sale of his estate; that, while the proceedings were going on, he declared to several persons, that his only object was to obtain security for his debt, and that he would, at any time, accept principal and interest

The defendant admitted, that there had been a correspondence between him and the complainant, in relation to a settlement, but that, instead of being lulled into security by it, he had expressly informed him, that he should proceed against his St. Christophers estate—that he had informed the husband of the complainant’s mother, that it was in his power to procure an absolute sale of the complainant’s estate, and that he should do so, if this debt was not paid; and urged him to become the purchaser, and pay the debt. He explicitly denied having told any one that his only object was to obtain security, and that he would, at any time, accept principal and interest—that all the proceedings had been in strict conformity to the law of the island. No part of the answer was materially impeached by the proof.

The defendant’s correspondence with his agent in St. Christophers constituted a part of the proofs. And from that correspondence it appeared distinctly that the defendant’s object was, not to obtain payment of, or security for his debt only, but to become the absolute purchaser of the West India estate.

The master of the rolls granted the relief prayed for. He thought the law of St. Christophers, which authorized the sale of an absentee’s estate without actual notice of the proceedings, merely by leaving notice at his last place of residence, and posting another upon the door of the Court house, a very unwise and improvident one.. But he admitted it to be the law, and that the defendant had a right to proceed under it, and he could not grant relief upon that ground. He expresses his conviction that Lord Grans town did not. believe that his estate could be absolutely sold; but admits that this circumstance could not affect the defendant. He admits that the denial of the defendant that he ever said his only object was security, and that he would, at any time, take his principal and interest, must be taken as true, being contradicted only by a single witness; and does not put his relief upon that ground. He places it expressly upon the ground that; from the correspondence between the defendant and his agent, it was apparent that the defendant’s object in the sale was, not only to obtain payment of his judgment, but to make an advantageous purchase. His language is this; “ Upon the evidence, the case is clear of all doubt as to the transaction, and the object the defendant had in view in getting that judgment(d) From the letters of June and September from the agent, it is clear the object of the defendant was, not only to obtain a sale to satisfy his judgment, but a sale at which he was to be the purchaser, upon such beneficial terms, that it would be worth his while to forego other prospects in life, viz. the settlement referred to in the East Indies. From the letter of the 13th November, from the agent, and the defence, I am to understand, that if 5s. had been given, it would be equally competent for him to insist that that should be the price, and that, he had as good a right to keep it as he has now. Such a picture of a sale under a judgment so insisted upon, is such as I should not have thought could have been exhibited in a Court of Justice with a serious intention, supposing that any law of any country should be perverted to such a purpose.”(e)

Again: “'It has been argued very sensibly, that it is strange for this Court to say the sale is void by the laws of the Island or for want of notice. I admit I am bound to say, that according to those laws, a creditor may do this. To that law he has had recourse, and wishes to avail himself of it. The question is, whether an English Court will permit such an use to be made of the law of that Island, or any other country. It is sold, not to satisfy the debt, but in order to get the estate, which the law of that country never could intend, for a price much inadequate to the real value, and to pay himself more than the debt, for which the suit was commenced, and for which only, the sale could be holden.”(f)

The legality of the sale, if a third person had been the purchaser, is admitted by the master of the rolls, and that no could have been had against him.(g)

The act under which the sale took place was the act oí 5 Geo. 2, ch. 7, which extended to all the English plantations. It was in force here from 1732, till the revolution.

Legal act presumed to be done for legal purpose, unless contrary appear by positive proof or strongest circumstantial evidence.

The master of the rolls, I admit, lays considerable stress upon the unreasonable provision of the colonial act as to the service of process, and the mode of sale. But it is clear upon the face of the case, that striking out of it the evidence that' Johnston’s object in effecting the sale was, not only to obtain payment of his debt, but to" purchase the estate, the relief could not and,would not have been granted. It was put upon the ground, that his proceedings were a fraud upon the act, inasmuch as his object was' to effect a purpose which it did not authorize or contemplate, under color of a proceeding which it did authorize. And does not this principle commend itself to all our feelings of natural justice and equity 1 Now can there be any difficulty in the application of this principle ? A legal act will always be presumed to have been done for a legal purpose, unless the contrary is made to appear by positive proof, or the strongest circumstantial evidence. Every intendment shall be in favor of the act. But when it does appear to have been done for an illegal purpose, a Court of Equity will restrict its operation to the object which might legally have been accomplished by it.

But when it does appear, court wUl restrict operation to object which might legally have been accomplished.

The law is full of analogies in support of this principle. Upon what other ground is an action upon the case sustainable against a Sheriff 'for oppressively and maliciously executing process 1 The oppression and the malice in many, if not in most cases, consist in the motive with which an act, legal in itself, is done. Take the case of Rogers v. Brewster, (5 John. Rep. 125, and the cases there cited.) The process of the constable authorized him to take the horse of the plaintiff, as much as any other article of personal property. But the -circumstances of the case showed that his motive ;n taking the horse in preference to any other property, was, not to obtain payment of his execution in the most speedy and effectual manner, but to vex and oppress the plaintiff.

I shall not take up the time of the Court, in showing that the only legal purpose for which the execution in this case could be used, was to obtain satisfaction of the judgment upon which it was issued; nor in a recapitulation of the evidence to show, that, instead of being used for the purpose, it was used for the avowed and express purpose of enabling M’Donald to purchase the respondent’s property at enormous and ruinous sacrifices; and if I have been successful in showing that the law would not have permitted him to have retained the property, but would have compelled him to restore it, or account for its value to the respondent; it necessarily follows, that the voluntary restoration of that which the law would thus have compelled him to restore, can form no consideration for the bond of the respondent.

Object of ex ■ ecution to satisfy debt.

But it may be said, that if Eddy should not be held to have been a party to the combination then the purchases made by him were legal, and the restoration of the property formed a portion of the consideration of the bond. The consideration for Eddy’s portion was the respondent’s note. It did not go into the bond; and. if it had, M’Donald could not avail himself of it. The judgment and note of John NeilSon, jun., and Boyce, who were both notoriously insol- ■ vent, it will not be pretended, formed a consideration sufficient to sustain the bond; and these are the only legal considerations beyond the debt due from the respondent, for which it is pretended the bond was given.

Voluntary restoration of what law will restore no consideration.

Restoration by Eddy, no part of consideration.

In this view of the case, therefore, I should be clearly of opinion, that the respondent’s bond ought to stand as security only for the amount of M’Donald’s judgment; and that upon payment of that, it ought to be given up and cancelled.

Bond, &c. should stand for replevin judgment only

Nor have I been able to satisfy myself, that M’Donald has any equitable claim upon the respondent, for which the bond ought to stand as further security. If it were apparent upon the case, that the bond gave M’Donald no more than he was equitably entitled to from the respondent, the Court would undoubtedly direct it to stand, although it might have been improperly obtained; upon the familiar principle, that he who asks for equity shall do equity.(h) But then the appellant’s equity ought to be perfectly clear and manifest, to induce the Court to impose terms upon the respondent, in a case circumstanced like this.

• M’D. has no equitable claim. If he had, security should stand for it

I shall not enter into a minute examination of the alleged grounds of the appellant, M’Donald’s, equitable claims against the respondent. They relate to a raft of timber belonging to the son of the respondent, out of the proceeds of which M’Donald alleges he was to have received a portion of his debt against the son, and of which he was deprived through the agency of the respondent; and to a replevin suit, for certain goods and chattels belonging to the son, of which it is alleged the respondent had become fraudulently possessed, and a portion of which still remained in his hands. It is sufficient to say, in relation to these claims, that whatever may be the rights of M’Donald, he can assert those rights either at law or in equity; and that they are by no means so clear as to entitle him to call upon the Court in this summary and collateral manner to adjust and allow them. •

The agreement of son that father shall deduct from his portion, no consideration.

Nor does the arrangement which is alleged to have been made between the respondent and his son, and sanctioned by the family, that the amount agreed to be paid by the father for the son, should be deducted from his inheritance, vary the case. The agreement of the son formed no consideration for that of the father. It was in his power to have deducted it without the consent of his son. He was under no moral or legal obligation to pay the debt, and the agreement to do this was most clearly not voluntary, but extorted from him.

Evidence not sufficient to charge Eddy;

I do not think the evidence sufficient to charge Eddy as a party to the combination. The principal circumstance which gives rise to suspicion against him, is the fact of his attending the sale prepared to pay his bids with specie. This certainly affords some reason for believing that he must have previously known that specie would be required in payment, and have been a party to the whole arrangement; but it is not of sufficient weight to overbalance the positive denial in his answer.

As to the other appellants, the evidence of combination is overwhelming. The testimony of Hunter, as to the declaration of Griffeth, that he was afraid the respondent would return before the day of sale, and get the proceedings stayed, receives strong and ample confirmation from Griffeth’s whole subsequent conduct, and from all the circumstances in the case. It is the first glimmering we discover of the spirit and object with which the proceedings were conducted ; and makes him an accessory before the fact, to all the subsequent acts of violence and oppression. It is followed up by an abandonment of all official discretion; and an entire submission to the plaintiffs in the execution. Instead of acting as the minister of the law, and guarding its precess against misapplication and abuse, he became the passive instrument of a party in the accomplishment of his illegal purposes. It was contended upon the argument, that he was not bound to incur the hazard of a suspension or adjournment of the sale, and that the law will not inquire into the extent of the hazard. Is it indeed true, that the law will not exercise a supervision or control over the discretionary acts of its ministerial officers ? That they are omnipotent and irresponsible in the exercise of the power entrusted to them ? “ It is a proposition,” as was once said by Ld. Hardwicke, “ too monstrous to be debated.”

But strong to show combination among others.

The law will make the most liberal intendment in favor of its ministerial officers, when acting within the limits of their authority; but it will not permit them to resort to the ultima ratio, when the legitimate object, which it is their duty to effect, can be accomplished by milder means. Has a Sheriff a right to load an unresisting debtor, who quietly submits to his authority, with bonds and fetters, to guard against an escape in carrying him from his home to a prison ? and yet it is the most effectual way of preventing an escape.

Law intends in favor of its ministerial officers ; but they should use mildest

It was the duty of Griffeth, under the circumstances of this case to have suspended or adjourned the sale; and his conduct throughout the whole of this transaction, deserves the severest reprehension.

Sheriff should under”fi. S/L° to prevent great sacrifices.

It is due .to the appellant, M’l/onald, to say, what is apparent on the face of this case, that he entertained a sincere and strong conviction, that the respondent had aided his son in defrauding him out of a large and just demand; and tho’ this belief, unsupported as it is by proof, does not alter the legal, it does most essentially change the moral character of his-conduct.

and^Gnffith competent witnesses.

'l-'*16 0K|ly question that remains, is as to the competency of Livingston and Griffeth, as witnesses. No relief is prayed against them. Whether a decree can pass against them, for costs only, seems to be questionable. But, admitting that it may, it is still but a contingent liability. A certain liability for costs is undoubtedly an interest which will render a witness incompetent. But, upon the authority of Man v. Ward, (2 Atk. 228;) Cotton v Luttrell, (1 Atk. 451;) and Beebe v. The Bank of New York, (1 John. Rep. 556;) I think these witnesses were competent, and that the objection went merely to their credibility.

The decree firmed as to módffiedld’bUt

And decree as to Eddy re-

I am accordingly of opinion, upon the whole case, that the decree of the Chancellor, as it respects the appellant M’Donaid, ought to be affirmed, with this modification: that the respondent, in addition to the note and judgment, which he is directed to re-assign and. deliver to M’Donaid, also deliver to him the instrument by which that note and that judgment were assigned to him, the respondent, by M’Donaid; to the intent that the general release which it contains, on the part of M’Donaid, of all demands against the respondent, may be cancelled: and that so much of his Honor the Chancellor’s decree, as relates to the appellant, Seth Eddy, be reversed.

Hunter, King, Lefferts, Lynde, Mallory, Ogden, Stranahan, Sudam and Thorn, Senators, concurred.

The principal fe°on which the appellants the'^ecree^of ■the court of shouiT be reTersed.

Savage, Ch. J.

The facts, in this case, which appear to me» material, are as follows: In the month of September 1815, M’Donaid sold goods to the respondent’s son, John Neilson, jun., amounting to $2100. On the 10th March? 1816, J. Neilson, jun., gave a note for $71125, and on the 14th of the same month another mote of $1393 82, both payable to Jacob Boyce, or order, in 90 days, and endorsed by Boyce to M’Donald. On the 16th of the same month, J. Neilson, jun., and M’Donald, entered into a written contract by which it was. stated that M’Donald had bought 250 sticks of timber, (afterwards estimated at $800, but which really-produced but $600,) to be delivered by J. Neilson, jun., in New York, and then paid for, at the New York prices, by being endorsed on M’Donald’s notes—the balance to be refunded to J. Neilson, jun., if the notes were thus overpaid. The timber was sent to New York, by one Samuel Hewitt, who proceeded to that place in company with the respondent. When the timber arrived at New York, M’Donald demanded it, but the respondent told Hewitt he had no right to deliver it. ■ The respondent did not promise to indemnify Hewitt against the consequences' of non-delivery, but Hewitt understood him that he (H.) should not be injured. The respondent said M’Donald’s debt should be the last his (the respondent’s) son should pay. Hewitt refused to deliver the timber, and M’Donald sued him for it. Hewitt gave himself no concern about the suit—the respondent defended it, and M’Donald failed in his action, on the ground that the contract between him and J. Neilson, jun., was ex-ecutory, and did not transfer to M’Donald the title in the timber.

M’Donald sued J. Neilson, jun., on the large note, and obtained a judgment, which was docketed May loth, 1818, and on the 19 th of 3 une following, a ft. fa. thereon was levied upon the personal property of J. Neilson, jun., in his possession, nearly all of which the respondent appeared and claimed, saying he had purchased it at a Sheriff’s sale, upon an execution in favor of Rockwell & Stebbins. , The Deputy Sheriff who levied, Franklin Livingston, one of the appellants, advertised the property for sale on the 8th of July, 1818, on which day the respondent brought replevin against-M’Donald and Livingston, for a part of the goods, worth about $601. The value of those included in the declaration in replevin was only $365 31. On the trial, a verdict passed for the defendants in the suit, M’Donald & Livingston, on the ground that the purchase by the respondent, under the Rockwell &Stebbins execution, was fraudulent, inasmuch as the respondent had agreed with his son to pay that execution out of the avails of the raft. On this trial, it also appeared that the respondent had no previous authority to intermeddle in the disposition of the raft, though his son afterwards approved of his acts.

A judgment was entered upon this verdict and an execution issued for $480 83, under which Griffeth, as Deputy Sheriff, advertised the respondent’s personal property for . sale on the 22d Nov. 1819, at 9 A. M. [Here the Ch. Justice adverted, to the proceedings preparatory to, and attending* the sale, as above stated by Sutherland and Woodworth, Js.]

The sale was proceeding, when the respondent, by the advice of his friends, proposed to compromise with the plaintiff, who offered to take $2500, in discharge of all his claims against both father and son. This proposal was finally acceded to, and the amount was secured by the bond and mortgage, in qeustion, after consultation with his family and friends, among whom an arrangement was made by which the sum secured was to be deducted out of the share which J. Nelson., jun., was to receive from the respondent’s property, as a son’s portion.

M’Donald, on receiving the bond and mortgage, joined with Livingston in releasing the judgment and execution obtained in the replevin suit. He transferred to the respondent the notes of $711 25, against J. Neilson, jun., endorsed by Boyce, and assigned his judgment against J. Neilson, jun., and executed a general release of all demands against both the Neilsons. • The bond and mortgage were payable in five equal annual instalments, with interest.

When the first instalment became due M’Donald brought a suit upon the bond; and then, and not till then, the respondent filed his bill in the Court of Chancery for relief.

In the meantime, J. Neilson, jun., had obtained the discharge of his person under the insolvent act.

There are some other circumstances, which I shall notice hereafter.

The question first in order, relates to the competency of two of the defendants in the Court below, (Griffeth and Livingston,) as witnesses.

On the point, whether a defendant, who is charged with fraud, but against whom nothing specific is prayed, may be examined as a witness for his co defendants, the decisions in the English Courts are certainly somewhat contradictory; but it seems to me that the weight of the later authorities is in favor of their admissibility. (1 Phil. Ev. 2d Am. ed. 63. Fenton v. Hughes, 7 Ves. 287. Dunham v. Corporation of Chippenham, 14 Ves. 251. Whitworth v. Davis, 1 Ves. & Bea. 548, 551.) The inclination, in our Courts, has been “ to confine the question of interest within strict and precise boundaries, and to let objections go more to the credit than to the competency of witnesses,” (Bebee et al. v. Bank of New York, 1 John. Rep. 577,) and to admit the testimony of such defendants, permitting all objections to be made to their credibility rather than their competency. (Kirk v. Hodgson et al., 1 John. Ch. Rep. 550.)

A defendant charged with fraud, but against whom no particular relief is prayed, may be a witness.

Objection goes to credit.

In my judgment, the Chancellor decided correctly in receiving the testimony of Griffeth and Livingston.

Gr. & Xl. good witnesses.

The other points, which appear to deserve consideration, are, 1. The regularity of the proceedings under the execution. 2. The validity of the bond and mortgage. 3. If the proceedings were irregular, whether the relief decreed by the Chancellor should be granted, under the circumstances of this case.

Other questions.

1. The Sheriff must obey his writ. It is his duty, therefore, on a fi. fa. to collect the money by the return day. He must not show favor, or give unreasonable delay, neither should he he guilty of oppression, or use more severity than is necessary. (Bac. Abr. Sheriff, (N.) Dalt. Sheriff, 109, 110.)

Sheriff must obey fi.fa. and collect money by return day; not show favor or be more severe than necessary.

In this case, the execution was delivered to him on the 10th November, 1819, returnable at the next January term. He levied on the 13th Nov. and advertised the property for sale on the 22d. The respondent was absent when the levy was made, and returned the evening before the sale. On the morning of the 22d, he requested a postponement of the sale, to which Griffeth answ red, he should obey the instructions of M’Donald. He requested M’Donald to agree to the postponement, which he refused. I incline to credit this statement of facts, rather than the relation of J. Neilson, jun. ' M’Donald told the deputy that he should demand specie of the Sheriff, and the deputy then gave notice that he should require it from the purchasers.

When fi. fa. delivered; and how executed.

Sheriff not to obey party if it will produce a great sacrifice ; should postpone sale where plaintiff cannot sustain injury by delay.

It is not at all surprising that M’Donald should have been willing to distress the respondent. Smarting under the losses, disappointments, and perplexities he had suffered, resulting, as he supposed, from the wanton and malicious officiousness of the respondent, he, no doubt, felt gratified with the prospect of receiving remuneration and inflicting punishment upon him. The Sheriff, however, ought not to lend himself to any one, and thus become the instrument of gratifying the vindictive feelings of an exasperated party. I am rather inclined to believe, that, in this instance, the deputy acted under an impression that he was bound to obey M’Donald’s instructions.' In this he was mistaken. He was bound to exercise a proper discretion, and when he saw that there must be a great sacrifice of the respondent’s property, it was his duty to have postponed the sale. (Tinkom v. Purdy, 5 John. Rep. 345.) A reasonable time should have been given the respondent to obtain the money, particularly when the Sheriff could not possibly sustain any loss from the indulgence.

No combination.

Evidence on this point

I cannot, however, believe that there was that combination or concert between the appellants, which is supposed. M’Donald and Livingston were parties to the execution, and it would have been strange if there had not been concert between them. Griffeth had, several days before, informed a son of the respondent that he should not postpone the sale without M’Donald’s direction. He to Id Hunter that he intended to sell as soon as the law would permit; and was afraid the respondent would return and pay the money. This conversation was voluntarily on the part of Griffeth, and certainly not calculated to further M’Donald’s views. The natural consequence of making a public disclosure of what M’Donald must have wished to be kept secret, would be to defeat the object, by giving the opposite party notice, and, therefore, enabling him to-guard against it, by preparing to pay the money.

The principal circumstance relied on to prove combination on the part of Eddy is, his going to the sale with specie in his pocket, and offering to lend it to the respondent on condition of his securing to him 50 dollars due to him from J. Neilson, junior. This fact, to myr mind, is conclusive evidence of Eddy’s innocence. He went to the sale with the expectation of making advantageous bargains, to indemnify himself for a loss sustained, as he alleges, through the respondent’s instrumentality. What inducement can any man have to attend a Sheriff’s sale, or an auction, but ,to make advantageous purchases ? What more natural than a desire to secure a bad debt, under such circumstances ? The only feature about Eddy’s conduct, which seems extraordinary is, that he was willing to loan the specie to the respondent on any terms; and it can only be accounted for on the supposition that he was fearful he might not otherwise attain his object. Had the respondent accepted his offer, M’Donald’s views would have been entirely defeated; and yet this offer is urged as proof of Eddy’s combination!

ed^<Li°sp* cie for ¡$50.

In conducting the sale, the deputy seems to have acted with ordinary indulgence and prudence, but he certainly erred in refusing the postponement: And were this the only question in the cause, I should certainly not hesitate in saying that the sale should be set aside.

Deputy er-^postpone.'118

2. The sale being considered irregular, it would seem to follow that the bond and mortgage, being a consequence of the sale, must be considered as improperly obtained, and be set aside either totally or partially. In this case, however, there are considerations which have brought my mind to a different conclusion.

The opinion of his Honor, the Chancellor, on this point, is in accordance with former decisions; which are, that, although the security may have been unduly obtained, yet it shall stand for what was truly due at the time. I can see no reason for limiting this doctrine to such claims as are legally due. Why do parties go into Chancery but for obtaining what a Court of law cannot give them? The securfty ought to stand for what in equity and good conscience the party is entitled to receive. u Courts of Equity never interfere to deprive the plaintiff at 1-w of any legal advantage which he may have gained, un ess the party seeking relief will do complete justice,- by paying what is really due. Indeed, they have (upon the same principle) gone so far as to refuse their assistance in relieving against a judgment obtained by fraud.” (Payne v. Dudley, 1 Wash. Rep. 199. Small v. Brackley, 2 Vern. 602.)

Though security may have been unduly obtained, yet it shall stand for what is legally or equitably due at the time.

fraudK°ndent S

The respondent in . this case, had, by his improper and wanton interference with the raft which M’Donaid had purchased and paid for, occasioned a loss to him of from 600 to 800 dollars, besides all the costs and expenses which he sustained.

Offer to com-vised'56’ \y counsel ^

Family arrangement

He had again, by a fraudulent purchase of the property of John Neilson, jun., taken out of the possession of M’Don-aid, property worth, at least, 600 dollars, a part of which, only was included in, the replevin suit. It appears, also, that a negotiation had previously been on foot, between, the respondent and M’Donaid, for the sale and purchase of the demands which the latter held against J. Neilson, jun.; and ft also appears, that the offer to compromise at the sale, proceeded from the respondent, was entered into by the advice friends and counsel, and under a full knowledge of his rights. (1 Mad. Ch. 215.) It is said, indeed, that he was apprehensive, from M’Donald’s circumstances, that the property, if taken away, would not be obtained again ; but surely there was no ground to apprehend that both the Sheriff and his deputy were insolvent. He had his remedy against the officer, as well as against the party. Although I cannot approve the conduct of M’Donaid or the deputy, yet it is not to be denied, that the respondent had provoked the treatment he received. He had deliberately executed the bond and mortgage, under the circuznstazices. just mentioned, and also had, by a family arrangement) p]aced the amount to the debit of his son, the original debtor.

In the research which I have been able to make, I find no case which goes the length of setting aside a conveyanee made under such circumstances. If done at all, it should be on completely indemnifying M’Donald, for the value of the raft, the goods replevied, and a liberal allowance for the costs and expenses of a three year’s litigation.

3. This brings me to the consideration of the relief, if any, which should be granted.

There is no doubt that the Court of Chancery has power to grant relief against deeds and judgments, not only when obtained by fraud or imposition, (Reigal v. Wood, 1 John. Ch. Rep. 406, and cases there cited,) but also when regularly obtained, if there are circumstances of extraordinary hardship, or great inadequacy of consideration. (Ld. Cranstown v. Johnston, 3 Ves. Jun. 170.) The party asking equity must, however, do equity. He must come into Court with clean hands, unspotted with the foul stains of fraud and chicanery. In the present instance, the respondent came with an ill grace into a Court of Equity, to ask redress against grievances which were the consequences of his own misconduct. Besides, he slept upon his rights (if any he had) until his son, the original debtor, had obtained a discharge, exempting his person from imprisonment. He had before got possession of all his son’s property; and the only remedy which M’Donald had to enforce collection of what is admitted to be an honest debt, is now taken away from him. If the bond and mortgage should be cancelled at all on any terms, it should only be done partially, allowing so much to remain as would be equal to the equitable claims of M’Donald; and also upon restoring him to all the rights which he possessed anterior to the execution of those securities. The latter condition cannot now be complied with. The release to J. Neilson, jun. cannot be cancelled without instituting proceedings against him; neither can his exemption from imprisonment be taken from him.

When chancery may relieve against deeds and judgments.

Parties cannot be reinstated, J. Neilson, jr a necessary party.

On the whole, therefore, I am of opinion, that the bond and mortgage given by the defendant, should not be can-celled. Although the conduct of M’Donald and the deputy cannot be justified, yet as between the parties in interest, there was a sufficient consideration.

Sufficient consideration.

1. Demands were assigned to the respondent amounting nomjnaiiy; to more than the bond and mortgage: demands which he had previously proposed to purchase, at five shillings on the pound. He now gave less than twenty shillings.

1. Demands assigned 5

2. Respon_ dent released.

2. He was released from all liability to M’Donald, which, upon equitable grounds, amounted to from fourteen to sixteen hundred dollars, besides costs and expenses.

3. Son released.

3. The respondent’s son was released from a debt admitted to be honestly due, amounting to considerable more than the amount of the bond and mortgage.

4. Securities executed to settle legal controversy, with knowledge of rights, and advice, &c.

4. The securities were executed to settle a legal controversy. The respondent knew his rights, and that he had a remedy against responsible persons. He had the benefit of counsel, and the advice of his family and friends.

5. Arrangement reasonable

5. And under all circumstances, the arrangement was reasonable in itself.

My opinion, therefore, is, that the decree of his Honor, the Chancellor, be reversed.

Bowker, Bowne, Bronson, Burt, Clark, Cramer, Dudley, Earll, Eason, Green, Hathaway, M’Intyre, Redfield. Wheeler, and Wooster, iSeuaiors, concurred.

For affirm-n”6for*rever’ eat, 16. •

A majority of the Court being for a reversal, it was there-uP°.n ordered, adjudged and decreed, that the decree of the Court of Chancery, made in this cause, be reversed; that the respondent’s bill be dismissed, without costs to either party, as against the other ; and that the injunction, issued in this cause, be dissolved; and that the record and proceedings be remitted, &c.

Bac. Abr. Duress. Attorney General v. Dutrie et ux., 2 Vern 497. Proof v. Hines, Cas. Temp. Talb. 111. Gould v. Okeden, 3 Br. Ch. Rep. 560. Kenrick v. Hudson, 6 Br. P. C. 614. Nicholls v. Nicholls, 1 Atk. 409. Thornhill v. Evans, 2 id. 330.

3 Ves. jun 170.

3 Ves. Jun. 179.

id. 180, 181.

Id. 182.

Id. 183.

9 Mod. 412. 1 Cas. Ch. 97. Proof v. Hines, Cas. Temp. Talb. 111. Gould v. Okeden, 3 Br. Ch. Cas. 560. Kenrick v. Hudson, 6 Br P. C. 614. Thornhill v. Evans, 2 Atk. 330. Ld. Cranstown v. Johnston, 3 Ves. jun. 170.