dry times, dresses, bedding, &c. to the amount of 66 dollars and 50 cents; and that her father paid for her board and schooling while she was with Caleb Sykes, 34 dollars. That all these defendants are willing, that whatever may have been received by them should be allowed out of any share of the said balance to which they, respectively, may be entitled; and submit their rights to the judgment of the court; and hope that whatever rights they, respectively, have under the said will, may be protected and secured to them. This answer asks that the trust fund, in whose hands soever it may be, to which they are not immediately entitled, may be invested, under the direction of the court, according to the intent and meaning of the said will; and says that these defendants, since the 11th of February, 1829, have received but trifling sums of interest on the said balance, except what is before stated, and have supported themselves, or been supported by the persons with whom they were living, with little, if any, expense to their father.

The defendant Thomas Bullock, junior, who answers by his guardian, says he is an infant under twenty-one, and claimst such interest under the said will, and in the said balance, as he is entitled to, and submits his interests to the protection of the

court.

The father, Thomas Bullock, died in March, 1845; and in this position of things, Zilley, the surviving executor and principal defendant, settled with the complainant his whole claim, and took his receipt therefor; and the court is now moved to allow the bill to be dismissed.

W. L. Dayton, for the motion.

G. D. Wall and P. D. Vroom, contra. It is a bill for a share of surplus, and the co-legatees were made defendants. All must be made parties, either plaintiffs or defendants. The defendants have answered. The rule, they apprehend, is settled: 2 Sim. and Stuart, 219.

There are two modes of proceeding: one co-legatee or codistributee may file a bill for himself and for others who will come in and contribute. In this case, he controls the suit until decree. The other mode is, to make his co-distributees de

fendants; and if they come in and answer, the complainant, they contend, loses the control. The other defendants have set up their claim, and cannot file a bill. The case stands on the footing on which it would stand under the first mode after a decree. Can the executor, after the answers are in, settle with the complainant? and can the complainant, after the answers are in, withdraw the suit? The way is, to permit the defendants to proceed in the name of the complainant.

Mr. Dayton, in reply. The argument on the other side shows he is correct. What is the principle applying to the case? The gentlemen on the other side have given the rule. It is this after a decree settling the whole case, the defendants may prosecute the decree, because they cannot then file a bill. But if on dismissal the defendants can file a bill in their own behalf, there is no reason why the complainant should not be permitted to withdraw his suit. The bill was filed before the death of Thomas Bullock, and could not call for any thing more than a share of the interest. The situation of the parties is now such, since the death of the father, Thomas Bullock, that the other co-distributees will be obliged to file a bill for their share of the principal, if they can make no settlement with the executor. The dismissal, therefore, will not involve them in additional expense. He cited Hoff. Ch. Pr. 327; 2 Smith's Ch. Pr. 311, 312.

THE CHANCELLOR.

To avoid multiplicity of suits, one person is allowed to file a bill on behalf of himself and all others in the same interest who may choose to come in and claim relief by and contribute to the expense of the suit. In such case, the decree provides for the rights, not only of the complainant, but of all others who come in to take the benefit of it; and therefore the complainant cannot, after the decree, dismiss his bill. I do not think the present case is within this principle. The complainant filed his bill for his proportion of the interest of the surplus in the hands of the executor, and made the other children, who are entitled to equal proportions of the interest, (if the complainant's claim for interest is good,) defendants. They answered the bill, admitting they had received certain

amounts, and submitting their rights to the protection and judg ment of the court. Pending the suit, the father, on whose death the children became entitled to have the principal distributed among them, died. No decree had been made in the suit; and the complainant thereupon settled with the executor, and gave a receipt for his share both of principal and interest. I know of no rule which forbids permitting him to withdraw his suit.

Let the bill be dismissed.

GEORGE WASHER and DANIEL WASHER V. JAMES BROWN.

A., who was keeping a tavern and occupying a house and lands on one side of the road, and a small strip on the other side, on which were a well and stables used by him for the purposes of the tavern, agreed to sell the premises to B., knowing that B. desired to purchase them for the purpose of keeping a tavern there, and represented to B. that his title covered the strip on which were the well and stables. A. did not own the strip. Under this representation B. entered into articles of agreement for the purchase. An injunction was granted staying the further prosecution of an action at law brought by A. against B. for not complying with the articles; though the deed to A., which was referred to in the articles as containing a description of the premises, was on the table when the articles were drawn in the presence of B.; the bill alleging that B., confiding in the representations of A., did not examine the deed.

But on the coming in of the answer, positively denying the allegations on which the complainant's equity rested, the injunction was dissolved.

It was said by the chancellor, that a purchaser for full value, is entitled to have an incumbrance removed, by the application to that purpose of a suffi. cient portion of the purchase money.

THE bill in this case, filed April 19th, 1845, states, that about December 26th, 1843, the complainant Daniel Washer, being desirous to purchase a house and lot suitable for keeping a tavern, and the complainant George Washer, the father of said Daniel, being willing to assist the said Daniel therein, the complainants opened a negociation with James Brown, the defendant, for the purchase of a lot of land of about six acres, with a dwelling-house and other improvements thereon, then occupied

by him as a tavern. That on that day the defendant, at the request of the complainants, who were strangers in that vicinity, pointed out and described to then the premises, and represented them as consisting of about six acres, situated on both sides of the turnpike road leading from Paterson to Hamburgh, on the northerly side of which road was the tavern-house and the principal part of the land; and on the southerly side a narrow strip of land, about two chains long and thirty feet wide, not enclosed by any fence, on which was a well of water and a shed or barn about forty feet long by twenty-four feet wide, with stalls and a mow, used for stabling and for storing hay for the purposes of the tavern. That after viewing the premises so pointed out and described to them, the complainants concluded they would suit their purposes, and offered to buy the same. That Brown asked 1600 dollars; and complainants offered 1400 dollars, and Brown agreed to take it--500 dollars to be paid when the deed should be delivered, and the residue in two equal annual payments; the defendant to execute a good and sufficient deed on or before April 1st, 1844. That after the price was agreed upon, the defendant remarked to the complainants that he did not want to take advantage of them; that there was a mortgage on the premises for 1000 dollars, but that the holder of the mortgage was willing it should remain, if the interest was paid, for two or more years, and that there was no other incumbrance on the lot. That the complainants, confiding in the defendant's representations as to the description of the premises and the incumbrances thereon, consented that articles of sale and purchase should be drawn and executed forthwith, without taking time to examine the record to ascertain the title of the defendant, or the incumbrances on the premises. That articles were accordingly prepared and executed on the said 26th of December, 1843. The articles recite that the defendant had sold, and that the complainants had purchased from him, the tract of land and premises lying in the township of Manchester, aforesaid, containing six acres strict measure, particularly described in a deed from Harriet Merselis to the defendant, dated March 11th, 1841, recorded, &c. subject to a mortgage from the defendant to the said Harriet for 1000 dollars; and then provides that Brown agrees to execute a good and suf

ficient deed of conveyance for the said tract of land and premises, on or before April 1st, 1844, and to deliver possession of the premises on the 17th of April, 1844; and that the Washers agree to pay Brown for the premises 1400 dollars, as follows:500 dollars on the delivery of the decd, and the balance of the purchase money in two equal yearly payments thereafter.

The bill states, that the complainants did not examine the deed referred to in the said articles, but that, trusting to the representations of Brown, they supposed the same conveyed all the premises shown to them by Brown. That therefore, on the same day, the complainants paid on the said articles of agreement ten dollars. That before the day fixed for the delivery of the deed, the complainants, to their great surprise, ascertained that a part of the premises for which they had bargained, that is to say, the part on which were the well and shed aforesaid, were not embraced in the said article, and that Brown had no title thereto, and that the complainants had been grossly deceived by Brown's representations in relation to the premises. That the premises without the said strip of land being entirely unsuitable for the keeping of a tavern, the purpose for which they were intended to be used, and being worth not more than 1000 dollars for any other purpose, the complainants wrote a letter to Brown, to the effect that they had been grossly deceived in the matter by his false representations, and that the premises were not truly shown and described to them by him, and therefore declining to carry into effect the said agreement; which letter the complainants caused to be delivered to Brown on or about January 20th, 1844. That on or about February 7th, 1844, Brown, in company with one Samuel Ryerson, came to the house of the complainant George, and tendered to the complainants a writing which he alleged to be a deed of the premises, and demanded the residue of the first payment. That the said deed did not include the land on which were the well and shed. That the complainants had no intimation that Brown was about to come at that or any other time for the purpose aforesaid, and had supposed, for reasons above stated, that he had relinquished any intention of seeking a compliance with said agreement, more particularly as the complainants on that day, for the first, discovered the additional fact that there was another mortgage