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In Chancery.-Cruger v. Douglas. 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 With regard to this last interview, it ap- of Mr. Cruger, by procuring for him one pears to have been brought about solely at half of the income of the estate. It is imthe instance, and upon the invitation of Mrs. possible to believe that they who stood in Cruger. Mr. Ogden did not seek it, nor the relation that these parties did to Mrs. does it appear that Mrs. Kane, Mrs. Monroe, Cruger, including Mrs. Kane, her intimate or Mr. Cruger were at all privy to it. Mr. friend and near relative, could have been Ogden had shortly before heard, through Mrs. actuated by such a motive, even if they had Kane or Mrs. Monroe, or both of them (be- not told us of higher and nobler motives of tween the 1st and 8th of Nov.), of the ma- action proceeding from feelings of friendship king and tender of the deed of the 26th of Oc- and affection towards Mrs. Cruger, and from tober, and had expressed his astonishment at a desire to serve her in that which would conits being limited to her life, but has no re- tribute most to her welfare, her own domestic collection of having seen or conversed with peace and happiness, and secure to her the Mr. Cruger on the subject between the time high stand which she had all along occupied of the first and last conversations with Mrs. in society, and before the world, and in the Cruger, or of having seen Mr. Cruger and estimation of her numerous friends. To this Mrs. Monme together during that interval. end and from such motives they were indu
It 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 ger, intending to benefit her, though at the discussed; and at which time he had very same time it could not fail to benefit her husfrankly expressed his opinion in favor of a band; yet he was not, nor were his interests, settlement of a part of her income upon her the object of their solicitude. He was but a husband that should be irrevocable, as the passive party, ready to abide by whatever only means of reconciling them, and of ena- should be done by her that her friends might bling them to live amicably together, and had sanction and approve. advised her against making a settlement of the It is true he was so far active as to reject whole income wuring 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 un. her difficulties, and the best mode of settling due means? That he took no active measand avoiding them in future. So far as he ures 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 inentality, guiding and directing their moveof her own, Mr. Ogden certainly exculpates ments, succeeded in bringing about the reMr. Cruger entirely from all agency in bring- sult, so far from being supported by any eving that influence to bear on her mind. The idence, is, in my judgment, completely dissame may be affirmed of the testimony of proved, not only by the positive testimony Mr. and Mrs. Monroe, in respect to the part which I have quoted, but by strong presumpwhich they took either conjointly or sepa- tive evidence which the circumstances of the rately to induce Mrs. Cruger to make such a case, the relations which the parties implica
In Chancery.-Cruger v. Douglas. ted stood in towards Mrs. Cruger, and their | The deed, moreover, is but a reasonable highly respectable and honorable characters settlement of this family matter. There is unquestionably furnish. There is no ground, nothing inequitable or unconscionable in its therefore, for imputing to Mr. Cruger the provisions. Such a deed, free from fraud, exercise of any undue influence, coercion, or though a voluntary one, yet made with a view misconduct, in obtaining the deed, either by of effecting a family settlement, a court of himself or through the medium of other per-equity will seek to uphold, rather than to dessons instigated by him, or whose officiousness troy, for obvious reasons of public policy as he had secured.
well as for the sake of the peace of families. The question still remains, however, wheth- That this deed has not been attended with er executing the deed under the advice and the good results which were expected from it pressing solicitations of her friends, urged by her friends, but has rather had the effect, upon her in the manner they have described, as it would seem, to estrange her the more and from motives like those before mentioned, from her husband, and in some degree to sever she is at liberty to retract and avoid it ? the ties of friendship and affection between
In looking at the transaction with a view herself and sister, yet this furnishes no arguto this question, it must not be forgotten that ment against the validity of the deed, nor any there was a dispute mainly attributable to the sufficient ground for not giving immediate want of a formal and permanent marriage effect to it. All this may have proceeded settlement. This dispute had before produced from some idiosyncrasy of mind that time temporary separations; and now again it had may overcome-and the day may possibly resulted in a separation which threatened to not be far distant when the object of her be more lasting, and in which the wife herself friends in recommending this deed of appointhad chosen to be the party to leave her house inent may be fully realized, notwithstanding 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. There is another point in respect to Mr. which led to it; and he and a sister-in-law Cruger himself, which must be briefly noticed. sanction the act by their subscription as wit. He is charged with obtaining the deed fraudnesses. Her husband was not present to over- ulently and in bad faith, well knowing that it awe her. Her importunate friends were not would not be the means of restoring harmony there surrounding her one of whom was on between them. This is answered by the his way to England. At that time she was free evidence showing that he was but a passive to act as she pleased; unconstrained, except so party, and had no hand in procuring it, other far as she may have felt bound in honor and than as a mere recipient when the deed was conscience to fulfil the promise she had made offered and sent to him. But the charge of to them, or was afraid of again incurring their fraud and bad faith goes farther. His mere displeasure by refusing to execute the deed. If acceptance of the deed and his attempt to the former was the case, she can hardly be al claim any rights under it, are alleged to be lowed to say that she executed it against her contrary to good faith and the true intent and will, and the convictions of her own mind; and meaning of an ante-nuptial agreement, and the latter will avail but little as an excuse for the deed of the 29th June, 1833, consequent one who is proved to be “remarkably pertina- upon it. cious in her opinions, not easily persuaded, and in the former part of this opinion I havo: certainly not to be intimidated from them.” lexpressed my belief that there was no ante
In Chancery.-Cruger v. Douglas. ruptial agreement by which the property and fess that my partiality in favor of marriage settlejis income was to be settled exclusively upon ments are not so strong as to induce any desire to see
the existing law altered. Generally speaking, the and to the use of the wife ; and it is sufficient
rules of the common law which give to the husband t say, with respect to the husband's deed of all the wife's personal property, and the rents and tie 29th June, that it contains in itself a profits of her real estate during coverture, are better rower of appointment in the wife, and that calculated, in my judgment, to secure domestic tranthere can be no fraud or bad faith on his quility and happiness, than settlements securing to a r.irt in assuming or claiming rights purport- the contol of her husband. An improvident and dis
wife a property separate from, and independent of, i g to be conferred upon him by any deed sipated husband may squander his wife's property, e vecuted in pursuance of such power. and reduce both of them to penury and distrees, but, In examining this important, and to the on th
and to the on the other hand, the possession by the wife of pror1 rties deeply mteresting case, there are many husband, 'would be likely to produce personal feuds
erty independent of, and beyond the control of the fits and circumstances scattered throughout a and contentions. Marriage is a union of persons and
'ge mass of testimony, and numerous letters interests, "for better for worse, for richer, for poorer, a d papers made exhibits in the cause, which and the ancient provisions of the common law show b ve given rise to much ingenious and elabo- o
o forth, in our country, decisive proofs of its benign and
salutary influence." r: te discussion by the very able counsel on both In the same case, Judge Platt says, “In the lansi les. These have not escaped my attention; guage of Sir William Blackstone, 'by marriage, the bit it is unnecessary to present them here at husband and wife are one person in law, that is, the lc.rgth. oth Thor molote te matters which doubt very being or legal existence of the woman is suspen
They relate to matters which doubt-ver Icsshave had an influence upon the motives consolidated into that of the husband, under whose
|ded during marriage, or, at least, is incorporated and aid actions of the parties in this unhappy wing, protection, and cover she performs everything.'” d. mestic controversy, and especially as indu. I confess that I love and venerate the primeval notion ei'g Mrs. Cruger to undertake the Repudiation
of that mystical and hallowed union of husband and
*wife, when “they twain become one flesh," when of her Deed after having quietly acquiesced in
they " forsook father and mother and clave to each aid abided by its provisions for a considerable other” with unreserved confidence. Marriage in that le agth of time.
old fashioned sense, is the purest source of domestic - It has been strongly put by Mr. Cruger's joys, and the firm foundation of social order. ci linsel-and there is reason to believe it...
Wi l 'I bow to the rule as I find it established, but I lafrm the evidence-that this attempt is owing relations of domestic life, which have grown, and are
ment the complicated and artificial anomalies in the to the officious interference of an individual, still growing, out of the practice of marriage settlewhose calling should have led him to holier ments. They give to the wife the amphibious charand better purposes than the fomenting of oss thon the fomenting of acter of a feme corert and a feme sole. I view it as an
adulteration of that holy union-as a divorce, pro demestic strife and the encouragement of de
tanto, of the marriage contract. va stating litigation; but with this I have no A wife, “ in the independent enjoyment of her serthing to do.
arate estate," armed with distrust of her husband, and A Decree must be made, establishing the shutting out his affections and confidence, by refusing D. ed of the 29th June, 1833, and the Deed of
to give her own in mutual exchange, is an object of
compassion and disgust. Legal chastity cannot be Ai pointment of the 19th November, 1841, and denied her, but there is danger that the sacred instituholding the Trustees to accountability to Mr. tion of marriage may degenerate into mere form, "and Csuger for an equal moiety of the net income she have little claiin, indeed, to the endearing appella.
tion, and character of a wife.” of the estate.
"The new rule will, I think, tend to sever, in sone | degree, the marriage union because it not only ren
ders the wife independent of her husband as to her l'he principle established by the case of Jaques v. fortune, but bars him from a participation in it, by TI: Methodist Church, 17th Johnson's Reports (New new and increased impediments, as if he were presu. Yc k), 548, as applicable to the foregoing opinion, is med to be her worst enemy. Now, if matrimony is tha a married woman, with respect to her separate not safe and desirable, without these trammels, and esti ce, is to be regarded in a Court of Equity as a fences, and reservations, and restrictions, I say, marry fer ? sole, and may dispose of her property without not at all! The ancient rule was adapted to the state the consent or concurrence of her trustee, unless pro- of English manners in the days of Lord Macclesfiek?, hil wed by the deed, and may give it to her husband and accords best with the general simplicity of society as well as to any other person, if there be no fraud, among ourselves at this day." for improper treatment, or unfair advantage taken: I know that particular cases ofien occur, when of Ir.
such restraints would be salutary; but, as a general This," says Chief Justice Spenser, " is the first rule, their operation must be unfavorable to connubial car in which the power of a married woman, having happiness. The same benign policy which forbids ser rate property, to dispose of it at ler will and plea- divorces, also forbids the extension of a rule which sur , when not expressly restrained in the mode of impairs the union, and lessens the attributes of holy exe: cising that will has arisen in our courts. I eon- matrimony.-ED.
Supreme Court, N. Y.-Nevins v. Deperries.
be pleaded as an accord and satisfaction in Supreme Court, N. Y.
bar of an action for the recovery of any por
tion of the debt beyond the sum for which FIRST CIRCUIT.
the compromise is made. Kellog y. Rich
ards, 14 Wend. 119; Booth v. Smith, 3 Before the Honorable J. W EDMONDS, Circuit Wend. 66; Boyd & Suydam v. Hitchcock, Judge.
20 Johns. Rep. 76; Sheepy v. Mandeville, 6 Robert V. Nevins v. Victor P. DEPERRIES.
Cranch. 253; Le Page v. Mc Crea, 1 Wend.
Rep. 172. -January 24, 1846.
II. The order on Murdock operated as an
assignment in equity, to Nevins, of the debt COMPROMISE WITH CREDITOR-PLEA OF ACCORD
due to Deperries, and was an additional secu
rity. Chitty on Bills 2; Cutts v. Perkins, A debtor compromised with his creditor a debt for 12 Mass. Rep. 206; Stock v. Mossan, 1 B.
fifty cents in the dollar, by giving him his own & P. 291; Walwyn v. St. Quintin, 1 B. & notes, and an order payable at sight on his debtor P. 654; Tierran v. Jackson, 5 Peters' Rep. for a debt, and took a receipt in full. The notes | 590: Martin v. Naylor, 1 Hill Rep. 583; 5 and the order were paid. To an action brought by the creditor for the balance of the debt the debtor
Wheaton 277, 286, Mandeville v. Welch, 4 pieaded accord and satisfaction. HELD, that such |T. R. 343, Master v. Miller. plea was properly pleaded, and that the order on III. If there be a benefit, or even a legal defendant's debtor was a good consideration for the possibility of benefit to the creditor, thrown accord and satisfaction.
in, that additional weight will turn the scale ASSUMPSIT.-The defendant, being indebted a
and render the consideration sufficient to supto the plaintiff in the sum of $150.09, com- Por,
"I port the agreement. Smith's Leading Cases, promised the debt for fifty cents on the dol-|P• 141.
he dol. p. 147. and the cases there cited. lar, by giving the plaintiff his own notes, one for $24.54 at two months, one for $24.55 at
By the Circuit Judge.—The rule being five months, and an order on his debtor for 6
for well established, that the mere payment, by a $26, payable at sight, and took from the plain
in debtor, of a less sum than the amount of the tiff a receipt expressed to be in full. The
debt, even though on an agreement that it notes and order having been paid, this suit|
uit shall be in full, is no accord and satisfaction, was brought for the balance, to which the de
the de. the only doubt I had on the trial, and for fendant pleaded accord and satisfaction, and
ne and which I reserved the point, was whether the a verdict was taken for the plaintiff for $75,
for $75. defendant's having given the order on his subject to the opinion of the court on a case
debtor, took this case out of the rule. to be made.
There was some doubt, on the argument,
as to the light in which the order was to be Stoughton, for plaintiff, moved for judg- regarded. It was in this form : ment, and insisted that the payment of a sum less than the sum owing and past due was no
New York, Oct. 30, 1843. satisfaction. Boud v. Äitchcock. 20 J. R. 76: Mr. A. Murdock 1 Smith's Leading Cases, 249; Cumber v.
To V. B. Deperries Dr. Wane, Harrison v. Close, 2 J. R. 447 ;| Nov. 10 47: Nov. 1842. To one dress coat,
$25.00 Johnston v. Branan, 5 J. R. 268; Cole v.
“ pr. pants, 10.00 Sackett, 1 Hill 516; Hawley v. Foot, 19
4.00 Wend. 516; Maze v. Miller, 1 Wash. C.C. R. 328.
Received on account, 13.00 Inglis, for defendant. I. Where a creditor, on a compromise with
$26.00 his debtor, accepts other security though for
Please pay this bill to the bearer immediately, a less sum than the original debt, as a satis
and his receipt will be good against me. faction for the whole debt, or where such cre
V. B. DEPERRIK. ditor 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, also Stierman v. Magnus, 2 Camp. 383; its acceptance by the plaintiff, and the subse- Wood v. Roberts, 2 Stark. 417; Boothly v. quent payment of it to him, made the com- Snowden, 3 Camp. 175. promise a good accord and satisfaction.
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. Nay. ment 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 discover 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 This is the debtor's giving additional secusatisfaction ; but the receipt of half the value rity, and the creditor's accepting it, for a less in money, is not.
sum in satisfaction of the whole debt within In regarding the security of a third person Sheepy v. Mandeville, 6 Cranch, 253. 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 un sibility 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 require the agreement. Cumber v. Wane, 1 Smith's ed nothing more than what he had originally Leading Cases 147; Le Page v. MIc Crea, 1 possessed, viz: the liability of his debtor, and Wend. 172. There must be something col- there was, therefore, no benefit or possibility lateral to show the possibility of benefit to the of benefit to the creditor. Such cases have party relinquishing his claim, pr. Lord Ellen- always been held to be within the rule, and borough, Fitch v. Sutton, 5 East. 230; vide though I have not been referred to any case