In Chancery.-Cruger v. Douglas.

With regard to this last interview, it appears to have been brought about solely at the instance, and upon the invitation of Mrs. Cruger. Mr. Ogden did not seek it, nor does it appear that Mrs. Kane, Mrs. Monroe, or Mr. Cruger were at all privy to it. Mr. Ogden had shortly before heard, through Mrs. Kane or Mrs. Monroe, or both of them (between the 1st and 8th of Nov.), of the making and tender of the deed of the 26th of October, and had expressed his astonishment at its being limited to her life, but has no recollection of having seen or conversed with Mr. Cruger on the subject between the time of the first and last conversations with Mrs. Cruger, or of having seen Mr. Cruger and Mrs. Monroe together during that interval.

ger, intending to benefit her, though at the same time it could not fail to benefit her husband; yet he was not, nor were his interests, the object of their solicitude. He was but a passive party, ready to abide by whatever should be done by her that her friends might sanction and approve.

present during the conversation, but took no settlement. Neither of the three acted with part in it of any moment. any view to serve the mere selfish purposes of Mr. Cruger, by procuring for him one half of the income of the estate. It is impossible to believe that they who stood in the relation that these parties did to Mrs. Cruger, including Mrs. Kane, her intimate friend and near relative, could have been actuated by such a motive, even if they had not told us of higher and nobler motives of action proceeding from feelings of friendship and affection towards Mrs. Cruger, and from a desire to serve her in that which would contribute most to her welfare, her own domestic peace and happiness, and secure to her the high stand which she had all along occupied in society, and before the world, and in the estimation of her numerous friends. To this end and from such motives they were induIt appears, moreover, from his testimony, ced to exert their influence, and to persuade that in the summer of the preceding year Mrs. Cruger to make such a deed of settle(1840), he, Mr. Ogden, had visited Mrs. Cru- ment as she finally executed. In so doing ger at Henderson upon her invitation, and they appear to have been governed by conthere the subject of a settlement and adjust-siderations altogether personal to Mrs. Crument of the difficulties with her husband were discussed; and at which time he had very frankly expressed his opinion in favor of a settlement of a part of her income upon her husband that should be irrevocable, as the only means of reconciling them, and of enabling them to live amicably together, and had advised her against making a settlement of the It is true he was so far active as to reject whole income curing her pleasure, as she re- the deed of the 26th of October, but that was peatedly said it was her intention to do. To because it was not in accordance with the the question, "Did Mr. Cruger at any time agreement and the solemn promise she had request you to exert any influence with Mrs. made. It is true, moreover, that he proposed Cruger on the subject of those difficulties?" the form or draft of a deed, such as he underThe witness answers, "Never! It was at the stood had been determined upon, but finding solicitation of Mrs. Cruger alone, and as her her unwilling to execute any other than her friend, that I gave the advice." The question solicitor should prepare, he yielded and acthus put and answered relates to every in- cepted the deed of the 19th of November. stance in which Mr. Ogden conversed with Under these circumstances can it be said that Mrs. Cruger, and gave advice in relation to Mr. Cruger succeeded in obtaining it by unher difficulties, and the best mode of settling due means? That he took no active measand avoiding them in future. So far as heures to obtain it, seems to me abundantly was instrumental in the matter, and so far as proved; and the leading charge of the answer, his advice or opinions may have influenced that he enlisted her friends in his service, her to make a settlement of one half of her prevailed on them to interfere and exert their income, and to make that settlement irrevoca- influence, and finally, through their instruble, and that too for her husband's life instead mentality, guiding and directing their moveof her own, Mr. Ogden certainly exculpates ments, succeeded in bringing about the reMr. Cruger entirely from all agency in bringing that influence to bear on her mind. The same may be affirmed of the testimony of Mr. and Mrs. Monroe, in respect to the part which they took either conjointly or separately to induce Mrs. Cruger to make such a

sult, so far from being supported by any evidence, is, in my judgment, completely disproved, not only by the positive testimony which I have quoted, but by strong presumptive evidence which the circumstances of the case, the relations which the parties implica

In Chancery.-Cruger v. Douglas.

ted stood in towards Mrs. Cruger, and their highly respectable and honorable characters unquestionably furnish. There is no ground, therefore, for imputing to Mr. Cruger the exercise of any undue influence, coercion, or misconduct, in obtaining the deed, either by himself or through the medium of other persons instigated by him, or whose officiousness he had secured.

The question still remains, however, whether executing the deed under the advice and pressing solicitations of her friends, urged upon her in the manner they have described, and from motives like those before mentioned, she is at liberty to retract and avoid it?

The deed, moreover, is but a reasonable settlement of this family matter. There is nothing inequitable or unconscionable in its provisions. Such a deed, free from fraud, though a voluntary one, yet made with a view of effecting a family settlement, a court of equity will seek to uphold, rather than to destroy, for obvious reasons of public policy as well as for the sake of the peace of families.

That this deed has not been attended with the good results which were expected from it by her friends, but has rather had the effect, as it would seem, to estrange her the more from her husband, and in some degree to sever the ties of friendship and affection between herself and sister, yet this furnishes no argument against the validity of the deed, nor any sufficient ground for not giving immediate effect to it. All this may have proceeded from some idiosyncrasy of mind that time. may overcome-and the day may possibly not be far distant when the object of her friends in recommending this deed of appointment may be fully realized, notwithstanding

In looking at the transaction with a view to this question, it must not be forgotten that there was a dispute mainly attributable to the want of a formal and permanent marriage settlement. This dispute had before produced temporary separations; and now again it had resulted in a separation which threatened to be more lasting, and in which the wife herself had chosen to be the party to leave her house and to keep herself aloof from her husband, the assertion in her answer that they had no he remaining ready to receive her whenever right to suppose it would form the basis of a she might return. In the hope of bringing re-union between her and her husband, since about a re-union and restoring harmony, her she had uniformly declared that his acceptnear relatives and other intimate and personal ance of an irrevocable power over any part friends interpose their kind advice, or she of her estate or its income, would be the cause seeks advice from them. Their advice she of a continued separation on her part. A redetermines to be governed by. She never-union, however, was but one of the objects theless waivers, and at length recedes. Her they had in view. If that failed, there was friends chide and entreat and importune, until another which would be accomplished by her she is brought back to her first resolve. She settlement of one-half of the income upon her then executes the deed and acknowledges it in husband. It would show her generosity and a deliberate manner before a proper officer and magnanimity, and in that respect "set her in the presence of a brother, who must have right before the world." known most, if not all, of the circumstances which led to it; and he and a sister-in-law sanction the act by their subscription as witnesses. Her husband was not present to overawe her. Her importunate friends were not there surrounding her-one of whom was on his way to England. At that time she was free to act as she pleased; unconstrained, except so far as she may have felt bound in honor and conscience to fulfil the promise she had made to them, or was afraid of again incurring their displeasure by refusing to execute the deed. If the former was the case, she can hardly be allowed to say that she executed it against her will, and the convictions of her own mind; and the latter will avail but little as an excuse for one who is proved to be "remarkably pertinacious in her opinions, not easily persuaded, and certainly not to be intimidated from them."

There is another point in respect to Mr. Cruger himself, which must be briefly noticed. He is charged with obtaining the deed fraudulently and in bad faith, well knowing that it would not be the means of restoring harmony between them. This is answered by the evidence showing that he was but a passive party, and had no hand in procuring it, other than as a mere recipient when the deed was offered and sent to him. But the charge of fraud and bad faith goes farther. His mere acceptance of the deed and his attempt to claim any rights under it, are alleged to be contrary to good faith and the true intent and meaning of an ante-nuptial agreement, and the deed of the 29th June, 1833, consequent upon it.

In the former part of this opinion I have expressed my belief that there was no ante

In Chancery.-Cruger v. Douglas.

ruptial agreement by which the property and i's income was to be settled exclusively upon and to the use of the wife; and it is sufficient 1 say, with respect to the husband's deed of the 29th June, that it contains in itself a rower of appointment in the wife, and that there can be no fraud or bad faith on his furt in assuming or claiming rights purportig to be conferred upon him by any deed executed in pursuance of such power.

This" says Chief Justice Spenser, "is the first cas in which the power of a married woman, having sep rate property, to dispose of it at her will and pleasur, when not expressly restrained in the mode of exercising that will, has arisen in our courts. I eon-matrimony.-ED.

Supreme Court, N. Y.-Nevins v. Deperries.

Before the Honorable J. W EDMONDS, Circuit Wend. 66; Boyd & Suydam v. Hitchcock,

I. Where a creditor, on a compromise with his debtor, accepts other security though for a less sum than the original debt, as a satisfaction for the whole debt, or where such creditor accepts the note of a third person for a It was contended that it might be regarded less sum than the debt due to him, in full as a bill of exchange-as a letter of attorney, payment of such debt, the transfer and accept-coupled with an interest, or as an equitable ance of such security or of such notes, may assignment of the claim. But it was insisted

Supreme Court, N. Y.-Nevins v. Deperries.

that in whatever aspect it was to be viewed, its acceptance by the plaintiff, and the subsequent payment of it to him, made the compromise a good accord and satisfaction.

also Stierman v. Magnus, 2 Camp. 383; Wood v. Roberts, 2 Stark. 417; Boothly v. Snowden, 3 Camp. 175.

In this case the additional benefit to the The rule for which the plaintiff contends, plaintiff consisted in the order on Murdock. is, as I have remarked, well established, and Murdock at the time that was drawn and givcourts have had frequent occasion to enforce en to the plaintiff, was indebted to the defenit. Yet they have often complained of it as dant in the amount, for articles previously harsh and rigid. In Kellog v. Richards, 14 sold him, and the debt was presently due. Wend. 119, it is spoken of as technical, and The arrangement that was made in regard to not very well supported by reason. Courts, that claim, was an equitable assignment of it therefore, have departed from it upon slight to the plaintiff, and it was not in the power distinctions: and I confess I cannot see why of the defendant, or of his debtor, Murdock, the creditor is not, in sound morals and good to withhold the payment from the plaintiff. faith, just as much bound to perform his agree- It comes within the case of Martin v. Nayment to release his debtor from the balance lor, 1 Hill, 533, see, also, cases cited in notes. of the debt as the debtor is bound to perform By the arrangement the plaintiff received his agreement to pay that balance. These not merely the legal possibility of a benefit, considerations have induced courts to declare but an actual benefit in the equitable and irthat the receipt of an article of property just revocable assignment to him of a subsisting half the value, 14 Wend. 119-the acceptance claim against Murdock, which thenceforth of the security of a third person, Boyd v. became available to him and to him alone. Hitchcock, 20 J. R. 76-the receipt on the Being for a subsisting debt, the assignment face of the debt, leaving the interest unpaid, made it as available to him, and as completely Johnston v. Branan, 5 J. R. 268-the re- his own as if it had been a note signed by the ceipt of the demand, leaving the costs unpaid, debtor of the defendant, or a bill of exchange Wilkinson v. Byers, 1 A. & Ellis 106-the accepted by him for the accommodation of the acceptance of a several instead of a joint liabi- defendant. Boyd v. Hitchcock, 20 J. R. 76. lity, Thompson v. Percival, 5 B. & Ad. 925 The language of that case is applicable here. --a composition in which other creditors are Here was a beneficial interest acquired, and a induced to join, Reay v. White, 3 Tyrw. 596 valuable consideration received by the plain-and the acceptance of a note in discharge tiff when he agreed to accept less than his of an unliquidated demand, Sheepy v. Man- whole demand. It would be an abuse of deville, 6 Cranch. 253, would constitute a terms to call this a nudum pactum. There good defence. The effort, in these and other was loss to the defendant in parting with his cognate cases, has been to narrow down, if not claim against Murdock, and a benefit to the entirely to avoid a rule which is so often con- plaintiff in acquiring the title to and control demned on principle. And some of the dis-over that claim, and here, as in that case, good tinctions are hard to understand or reconcile faith and sound principle requires that this upon any other basis than this disinclination should be deemed a valid accord and satisof the courts to the rule: for instance, the faction. receipt of a horse for half the value, is good satisfaction; but the receipt of half the value in money, is not.

This is the debtor's giving additional security, and the creditor's accepting it, for a less sum in satisfaction of the whole debt within Sheepy v. Mandeville, 6 Cranch, 253.

In regarding the security of a third person as constituting a valid accord and satisfaction, It is unlike the case of Hawley v. Foot, the courts seem to be equally liberal, and hold 19 Wend. 516, which was cited on the arguthat if there be a benefit, or even a legal pos-ment, because in that case the order was unsibility of a benefit to the creditor thrown in, accepted, and it did not appear that the that additional weight will turn the scale and drawer was indebted to the debtor. The render the consideration sufficient to support court, therefore, held that the creditor requir the agreement. Cumber v. Wane, 1 Smith's ed nothing more than what he had originally Leading Cases 147; Le Page v. McCrea, 1 possessed, viz: the liability of his debtor, and Wend. 172. There must be something collateral to show the possibility of benefit to the party relinquishing his claim, pr. Lord Ellenborough, Fitch v. Sutton, 5 East. 230; vide

there was, therefore, no benefit or possibility of benefit to the creditor. Such cases have always been held to be within the rule, and though I have not been referred to any case