debts of the company, to put the works in operation, and to save the property from the sacrifices which, they say, would have been unavoidably made without the arrangement which they did make, "as herein before set forth." How these two last prominent objects might be promoted by the arrangement, we may in some measure comprehend; but how the other object stated as prominent, that of realizing sufficient to pay the debts of the company, was to be attained by the arrangement, it is difficult to perceive. It is easy to see, that there is nothing in all this opposed to the truth of the charge in the bill, that no part of the said consideration money was ever paid or secured to the company, or intended to be, and that no part of it has been or was intended to be paid to the creditors of the

company: There is one part of the answer which seems to approach very nearly to an answer to the charge; but on close examination, it will be found to break the promise to the hope. It is that part which says, "That as part of the arrangement aforesaid, it was agreed by the parties aforesaid, that the said 3000 dollars, the consideration for the sale of the said property, mentioned and set forth in the said agreement, and acknowledged to have been received from the said defendants by the managers, should be paid and applied directly on account of the said company to the creditors; and it was also agreed that the said defendants should pay, out of the net earnings of the said six twelfths so held in trust by them as aforesaid for the said Van Renselaer, Stebbins, &c. (naming the others interested in the arrangement,) after paying the costs of completing and putting the same in operation, a further sum sufficient to pay off and satisfy the remaining debts owing by the company; and it was also agreed that the said defendants should put the said machinery into operation and make the same productive as soon as circumstances would permit."

It is evident that these defendants felt the force of the charge and the importance of giving it an answer. Is the answer such as should be satisfactory to the court? I think not. Was the consideration money, or any part of it, paid? If it had been, it would no doubt have been so stated in the answer; for they have thought it worth their while to say "that it was acknowledged (that is, in the deed) to have been received from them

by the managers." Was it secured to be paid? If so, was any time fixed for its payment? To whom was it to be paid? No answer is given to any of these inquiries. But it is said, it was agreed by the parties to the arrangement (themselves being parties to it) that it should be paid. How, and to whom? The answer says it was agreed that it should be paid and applied directly on account of said company to the creditors. By whom was it to be so paid and applied? By themselves? The answer does not say so. Was it to be to any particular creditor? or to all the creditors pro rata? Again, how was it agreed to be paid? what evidence is there of an agreement to pay? No such agreement appears in any of the writings. The memorandum says, that the property, when purchased by them, shall be held by them for their benefit and that of the other parties to the memorandum, half for them and half for the others, and that each should pay, pro rata, for the purchase of the property, according to his respective interest in the same, to be thereafter declared. To whom was each to pay his share? The answer says it was agreed that the consideration money should be paid and applied directly to the creditors. Are these defendants, Loomis and Lyman, or any or either of the parties to the memorandum, personally liable to the creditors or any of them? The title of the property is to be taken out of the company; no part of the purchase money is to be paid to the company; the property is to be removed from the reach of the creditors; and at the same time the parties to the memorandum are not to be personally liable to any creditor. If this is not the arrangement, the company, or those who acted for it, should have put in their answer to show the court what it was. Indeed it is an objection to the dissolution of the injunction, that the company, or those who acted for it, have not answered; for certainly the gravamen of the bill rests partly on them. If this is the arrangement, it cannot receive the sanction of this court.

There is another rule for answering, which, as it seems to me, has been departed from in this answer. It is this: Where a matter is charged in the bill which must, if true, be within the knowledge of the defendant, the substance of the charge should be answered directly, not evasively, nor by way of negapregnant. And I must be permitted to add, that where the

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circumstances charged are suspicious, or have the appearance of collusion and fraud, a defendant must be held to strict rule in answering.

There is one view of the subject, on which, if it be the true view, it might be thought the injunction should be dissolved. I am not satisfied that the instrument transferring or purporting to transfer the personal property of the company, executed under the hands and seals of four of the directors, and the resolutions mentioned in the answer as afterwards made by the managers, or some of them, approving the transfer, are sufficient to transfer the property; and if the personal property still belongs to the company, it may be asked, why not dissolve the injunction as to the personal property, and let the execution at law sell it as the property of the company? The answer is, the party moving for the dissolution do not ask it on that ground. They claim the property as theirs. It may be said, that the sale injoined was a sale about to be made on a judgment at law assigned to Loomis and Lyman. The answer is, if they acquired the title to the property and then bought a judgment at law which was a lien on the property, they relieve the property from the lien of the judgment. It would be a singular proceeding to sell their own property to pay a judgment of which they had procured an assignment to themselves. If the property is theirs already, they cannot be injured by an injunction against selling it under the judgment; and if they claim the property as theirs, and as not subject to the judgment, is it likely that any person besides themselves would be willing to bid for the property and pay its value, at a sale under that judgment, and take their chance of recovering it or its value from Loomis and Lyman, in opposition to their assertion and claim of title in them prior to the judgment? This renders it unnecessary for me to look, at this time, into the transaction in reference to the Doughty judgment.

In my view of the case, as it stands upon the bill and answer, the injunction should be retained till the hearing of the case on the proofs.

Motion denied.

JOHN B. BULLOCK V. BENJAMIN ZILLEY, Surviving Executor of JOHN BUTCHER, and others.

The complainant filed his bill for his proportion of the interest of a surplus in the hands of an executor, and made his brothers and sisters, who are entitled to equal portions of the interest, (if the complainant's claim for interest is good,) defendants. They answered the bill, submitting their rights to the protection and judgment of the court. Pending the suit, the person at whose death the principal was to be distributed among the com. plainant and his brothers and sisters, died; and thereupon the complainant settled with the executor. No decree had been made in the cause. The complainant was permitted to discontinue the suit.

JOHN Butcher, late of the county of Burlington, died February 7th, 1818, leaving a will, by which he devised and bequeathed to Thomas Butcher, since deceased, and the defendant Benjamin Zilley, whom he also appointed executors of his will, all his estate, real and personal, in trust that they, or the survivor of them, should sell the same and put the proceeds at interest. The will directs the said executors and trustees, and the survivor of them, to pay the interest, in their discretion, to the support and maintenance of his nephew Thomas Bullock and his family, including the complainant, for and during the natural life of the said Thomas; and at his death to divide the principal equally among the children of the said Thomas, including the complainant, who may then be living. Thomas Butcher died January 1st, 1828. Five children of Thomas Bullock, besides the complainant, are still living, namely, Margaret Bullock, Amos Bullock, Thomas Bullock, Elizabeth wife of John H. Cook, and Ann wife of Turner Risdon. Rebecca the wife of Thomas Bullock died July 10th, 1839. The defendant Benjamin Zilley, surviving executor, has in his hands the whole of the surplus of the estate of the testator, after paying the debts.

The bill was filed April 5th, 1842, in the life time of Thomas Bullock, and states that the complainant had formed no part of the family since he attained the age of sixteen, and prays that the defendant Zilley may be decreed to account with him, and

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that the said surplus may be applied in a course of administration, agreeably to the directions of the will; and that the complainant may be paid his proportion of the annual interest, or such portion thereof as may be necessary to his support, or he shall appear to be justly entitled to under the directions of the said will.

The other children, with the husbands of the married sisters, and Thomas Bullock, are made defendants.

Zilley, the surviving executor, and Thomas Bullock, two of the defendants, put in their joint and several answer. This answer states, that all the interest of the said principal sum so invested, has been paid, annually, to the support and maintenance of the said Thomas Bullock and his family, including the complainant; and claims, that by the true construction of the will, the interest has been properly paid.

In May, 1844, after all the testimony had been taken in the cause, the other children of Thomas Bullock put in their answers. Margaret Bullock answers separately; and after admitting, &c. says, that some time in September, 1828, she was put out to one Amos Bullock, and that she returned to her father in the spring of 1842, and that she is ignorant what share or portion of the said balance she is entitled to, or what sums have been paid to her or for her use, either by her father or by the said Benjamin Zilley; but that she is willing to abide by their account thereof, and she submits her rights under the will to the judgment of the court.

The other children, with the husbands of the married daughters, put in their joint and several answer; one of them, being an infant, answering by his guardian. This answer, after admitting, &c. states, that in September, 1828, the family of Thomas Bullock was broken up, and his children were put out to different persons. That the defendant Elizabeth Cook left her father's family in the fall of 1828, and did not return till January, 1841, when she remained eleven months, paying for her board by her labor; that she had a bureau, clothes and goods, of the value of 129 dollars, which she believes were paid for or furnished by her father, and also 100 dollars in cash, received of Zilley. That the defendant Ann Risdon has received from her father 160 dollars in cash, and received, at sun