(No. 23.)

To restrain certain parties, defendants, from prosecuting vexatious suits under an agreement rendered void in their hands from their failure and inability to comply with its provisions, and praying that the agreement be delivered up to be canceled; several of the contracting parties, who should have been plaintiffs, refusing to join, are for that reason made defendants.1

Cyrus W. Field, plaintiff, complains and alleges:

First. That on the 24th day of March, 1854, he, together with Chandler White, acting on behalf of themselves and their associates, Peter Cooper, Moses Taylor, and Marshall O. Roberts, entered into an agreement with

1 A demurrer to this complaint was overruled by Justice HOFFMAN, at Special Term of the Superior Court, and this decision was reversed by the General Term, on appeal. (14 How., 103.) In the opinion of the General Term, Justice DUER, specifies the four following classes of cases, in which, alone, the jurisdiction of the Court to order a written instrument to be delivered up to be canceled, can be said to be established and undoubted:

First. Where the plaintiff alleges, that the instrument he prays may be surrendered or canceled, is void, upon grounds in which a Court of Equity alone can take cognizance, in fewer words, when he sets up a purely equitable defence.

Second. When the instrument is a deed, or other document concerning real estate, which, although inoperative, if suffered to remain uncanceled, would throw a cloud upon the plaintiff's title to the

Ambrose Shea, as agent of Darius B. Holbrook, and of Holbrook & Co., a firm consisting of the said Darius B. Holbrook, and of Holbrook, as the plaintiff is informed and believes, of which agreement a copy is hereto annexed, marked A.1

Second. That the said Holbrook afterwards caused to be delivered to the plaintiff, and his associates, an account

lands which it embraces, or to which it refers. [See an example of such a case, ante, No. 21, and authorities cited in note.]

Third. When the instrument is negotiable in its character, as a bill of exchange, and the putting it into circulation by the holder would be a fraudulent act.

Fourth. When the plaintiff claims to have a defence, valid in law, but which rests upon evidence which he is in danger of losing if the adverse party is suffered to delay the prosecution of his claims. [See authorities cited in support of these propositions in the reported case, Field v. Holbrook and others, 14 How., 160.]

1 The following is a copy of the agreement:

AMBROSE SHEA, Esq.,

St. Johns, March 24th, 1854.

Dear Sir: In compliance with the verbal understanding had with you, we stated that we have agreed with you, as agent of Messrs. Holbrook & Co., and D. B. Holbrook, to give them, respectively, stock at par in the New-York, Newfoundland and London Telegraph Company, for the actual amount of money paid by them (and interest at 7 per cent.) for the Newfoundland Electric Telegraph Company, and actually received by that company, such stock to be given to them on their demanding it of us in New-York, at any time in the month of August next, and on their surrendering to us all the bonds and stock received by them from said Newfoundland Electric Company.

Your obedient servants,

CHANDLER WHITE,
CYRUS W. FIELD,

On behalf of the Associates.

I accept the above terms on account of Messrs. Holbrook & Co., and D. B. Holbrook.

(Signed,)

A. SHEA.

St. Johns, Newfoundland, March 31st, 1854.

of the said money alleged to have been paid by him to them, which they allege to amount, with interest up to the 1st of August, 1854, to the sum of $51,820.80.

Third. That on the 29th day of August, 1854, the plaintiff, and his said associates, caused to be tendered, on their behalf, to the said Holbrook, five hundred and eighteen shares of the capital stock of the New-York, Newfoundland and London Telegraph Company, the par value of each share being $100, together with $23.50, and demanded of him the bonds and stock aforesaid; but the said Holbrook did not receive the said shares or money, or deliver up the said bonds and stock.

Fourth. That as the plaintiff is informed and believes, the said Darius B. Holbrook, and Holbrook had not, nor had either of them, during the said month of August, nor at any time since, the bonds and stock of the Newfoundland Electric Telegraph Company aforesaid, or the larger part thereof.

Fifth. That notwithstanding the said tender and refusal, and the inability of the said Darius B. Holbrook and Holbrook to comply with the terms of the said agreement, the said Darius B. is now continually annoying the plaintiff and his associates with his pretended demands upon them, under pretence of the said agreement, and as the plaintiff is informed and believes, threatens to bring suits against them and against the said New-York, Newfoundland and London Telegraph Company in this country and in Newfoundland.

Sixth. That the plaintiff has not been able to obtain the consent of his said associates to be joined with him as plaintiffs in this action, and for that reason they are made defendants.1

1 See Code, § 110; Pleadings, 133, 134.

Seventh. That the plaintiff and his said associates are all stockholders in the said New-York, Newfoundland and London Telegraph Company.

Wherefore the plaintiff demands judgment, that the said agreement be delivered up to the plaintiff to be canceled, and that in the mean time, the said Darius B. Holbrook and Holbrook, and each of them, be enjoined from commencing or prosecuting any action or actions, suit or suits, against the plaintiff and his associates, or the said New-York, Newfoundland and London Telegraph Company, upon the said agreement, or for any other cause of action arising out of the said agreement, or connected therewith or relating thereto, and from taking any proceedings against the plaintiff, legal or otherwise, for any matter connected with the interest of the said Darius B. Holbrook and Holbrook, or either of them, in the said Newfoundland Electric Telegraph Company, or the claims of them, or either of them, against the said company. FIELD & SLUYTER,

Plaintiff's Attorneys.

(No. 24.)

For an injunction order, and a receiver, in aid of an action to recover the possession of personal property.1

SUPERIOR COURT-CITY OF NEW-YORK.

Benjamin F. Hunt
agt.

William Mootry.

Benjamin F. Hunt, of the city of New-York, plaintiff, complains and alleges:

1 In an action for the recovery of the possession of personal property, an injunction, under the Code, may be allowed in aid of the action,

First. That on or about the 27th day of September, 1843, Jane Hunt, of Watertown, in the State of Massachusetts, the paternal grandmother of the plaintiff, being then the owner of the seven family portraits, and other painting, hereinafter mentioned, and in possession thereof, at her house, in said Watertown, executed under her hand and seal, and delivered to the plaintiff, a bill of sale, or deed of gift, of the said eight paintings, among other things, in the following words:1

And the said deed and gift were accepted by this plaintiff, and the property delivered accordingly.

Second. That among the family paintings, referred to in the aforesaid bill of sale, or deed of gift, were the following portraits:

The portrait of Madam Anne Bureau, the widow of Benjamin Faneuil the elder, &c. [specifying them], which said portraits are all by the hands of eminent painters; and two of them, the portraits of the said Andrew Faneuil and his wife, are supposed, and the plaintiff believes justly, to have been painted by Sir Peter Lely; and the whole of said portraits are of great intrinsic value, as works of art but of much greater value to the plaintiff, and more highly prized by him, from their being the portraits of relatives and ancestors.

Third. That the said other painting, above referred to, is an old painting representing fire-arms and shooting tackle, the gift of a relative to the said Jane Hunt, as the plaintiff is informed and believes.

it appearing that the plaintiff is entitled to it by reason of the injury to him. (Furniss v. Brown, 8 How., 59; Erpstein v. Berg and others, 13 How., 91.)

The instrument gives the paintings to the plaintiff, in trust, for the use of the grantor, during her life; and after her death, to the sole use and disposal of the plaintiff, in "the confidence that he will keep and dispose of them as family memorials," &c.