on

from this tract, to pay the taxes on lands in Pennsylvania, and lands of the testator in this state, and on that ground moves to dissolve the injunction; the court must deny the motion. In reference to the Abbot tract, therefore, the injunction is retained.

As to the twenty-five acres: the answer admits that the defendant advertised for sale the timber on twenty-five acres in the county of Camden, as charged in the bill; but says that the timber so advertised is his own property, and does not belong to the estate of the testator; and there is no charge or statement in the bill, that this twenty-five acres does belong to the estate. As to this tract, therefore, the injunction must be dissolved.

Order accordingly.'

AROET M. HATCH V. DAVID DANIELS.

On the positive denial of the allegations of the bill on which the complain. ant rests his equity, an injunction will be dissolved.

THE bill in this case states, that in eighteen hundred and thirty-nine, the complainant and Lewis M. Hatch and Daniel F. Fleming, were partners in trade in New-York, under the name and style of A. M. Hatch and Company. That said firm became embarrassed, and was subsequently dissolved; having before the dissolution become indebted to the defendant, David Daniels, for goods furnished them by him, for part of which they gave to said defendant their partnership notes, the other part of said indebtedness remaining in the shape of book account against them.

The bill then charges that Fleming, one of the said firm, on a fair adjustment of accounts with the complainant, would, as the complainant believes, be much indebted to him, but that he had left New-York and gone to reside at Charleston, SouthCarolina; "and that complainant has reason to believe, and does believe, and therefore charges, that Fleming has either paid off the said notes of the said firm of A. M. Hatch and Company to Daniels, or made some arrangement respecting the

same, and respecting the said book account of Daniels, by which the same constitute no valid or legal claim in favor of the said Daniels against the complainant, or the said firm of A. M. Hatch and Company; and that the object is to recover the amount thereof from the complainant, in the name of the said Daniels, but for the use and benefit, wrongfully, of the said Fleming."

The bill prays a discovery, to enable the complainant to make defence in an action at law brought in the name of Daniels on the said notes and book account, "and that the said Daniels may answer, what arrangement exists between him and Fleming (if any) respecting said notes and account; whether the same now belong to him, or did belong to him at the time of commencing said action and at this time;" and whether he is not lending his name for the prosecution of the same for the benefit of Fleming; and that Daniels may be injoined from further prosecuting the said action at law, and that said notes may be given up to be cancelled, and the said account receipted. and discharged, and for further relief.

On this bill an injunction was granted to restrain the said suit at law, which was noticed for trial on the third Tuesday of October, eighteen hundred and forty-four.

The answer positively denies the existence of the alleged facts of which a discovery is prayed, and on the supposed existence of which the injunction was granted.

Hubbell, moved to dissolve the injunction.

W. Pennington, contra.

THE CHANCELLOR. The general rule is, that on the posítive denial of the allegations of the bill on which the complainant rests his equity, an injunction will be dissolved. There is nothing in this case to induce the court to retain the injunction. The injunction will be dissolved.

Order accordingly.

JOHN ROBBINS v. GEORGE D. ABRAHAMS and his Wife, and JAMES BURROWS, Trustee of the Wife.

The joint and several answer of a married woman and her trustee, to a bill against her trustee, her husband and herself, put in without leave of the court, may be suppressed for irregularity.

In this case, the joint and several answer of Phebe Abrahams, wife of George D. Abrahams, and of her trustee, James Burrows, had been put in without the leave or order of the The husband had not answered.

court.

C. S. Green, moved to suppress the answer, and cited Story's Eq. Pl. sec. 71; Mitford's Pl. 105; 1 John. Ch. R. 24, and other authorities.

P. D. Vroom, contra, admitted the general rule, but submitted, whether, the trustee having joined in the answer, it should be wholly suppressed.

THE CHANCELLOR. A wife cannot answer separately from her husband, without leave of the court. The answer will be suppressed, and the defendants will be ordered to answer by the first day of the next term.

Motion granted, and order accordingly.

CASES IN CHANCERY,

JUNE TERM, 1845.

HENRY COTHEAL and DAVID COTHEAL V. JEREMIAH W. BLYDENBURGH et al.

A., living in New-York, sells to B., also living in New-York, a tract of land in New-Jersey, and takes his bond for part of the consideration money, with seven per cent. interest, and his mortgage on the lands conveyed, to secure the payment of the bond. The mortgage is not usurious. The exchange of the papers in New-Jersey, at the proper record office, will not make the mortgage usurious; they having been executed and acknow. ledged in New-York, and a sufficient reason for not exchanging them there, being shown.

THIS was a bill for the foreclosure of a mortgage. The complainants had sold to J. W. Blydenburgh, a tract of land in this state, and taken his bond for a part of the consideration money, with seven per cent. interest, and his mortgage on the lands sold, to secure the payment of the bond.

Both parties resided in New-York, and the papers were executed and acknowledged there, but were exchanged in this state, at the clerk's office of the county in which the lands are situated.

A mortgage on the same lands, from Blydenburgh to Wadsworth, a witness in the cause, was executed and acknowledged in New-York, at or about the time when the mortgage to the complainants was executed and acknowledged.

Wadsworth testified, that he met Blydenburgh at the complainants' office in New-York, a few days after the mortgages were acknowledged, for the purpose of having the mortgages delivered, and of Blydenburgh's getting his deed. That at this

time, there was a proposition made as to the exchange and delivery of the papers. That one of the complainants objected to delivering the deed, unless he could be sure that the mortgage to them was put on record before the mortgage to the witness. That he was present at a subsequent interview between the same parties, or some of them, in relation to the same subject, at the office of Mr. Feltus, a counsellor at law in New-York, who acted as counsel for the complainants; and that at this interview it was understood that Blydenburgh and one of the complainants should meet, with their papers, at the place of record in New-Jersey, the next day, for the purpose of having the papers recorded in the proper order. That it was agreed that the witness's mortgage should be second.

The defence set up by the answer is, that the mortgage was

usurious.

The cause was heard on the pleadings and proofs.

Leupp, for the complainants, cited 17 John. Rep. 511; 1 Green's Ch. R. 44; 1 P. W. 606; 3 Green's Rep. 328; 2 Kent's Com. 460, 461.

J. W. Blydenburgh, pro seipso, cited 8 Leigh's Virg. Rep. 93; 3 Iredell, 528; 6 Paige, 627; 4 Peters, 205.

THE CHANCELLOR. This is not the case of a borrower and lender residing in New-Jersey, making a contract for the loan of money, and going into New-York to exchange the papers, and reserving seven per cent. interest. All the parties to this contract resided in New-York at the time it was made. The bond and mortgage both truly state the parties, obligor and obligees, and mortgagor and mortgagees, as of the city of NewYork. The papers were executed in New-York, the mortgage is acknowledged in New-York. It is clearly a New-York

transaction.

A., residing in New-York, lends B., also residing in NewYork, a sum of money, and takes his bond for it payable in one year, at New-York interest, seven per cent. To secure the bond, the borrower gives the lender a mortgage on lands in New-Jersey. It would be a singular application of the lex loci