The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-04-01


The North american Fire Insurance Company u.s.
Graham, Jones, Turney, and several othrs.-Hearing
on pleadings and proofs.--The bill in this cause was
filed to set aside the dscharg of the defendant Ora
ham, under the Bankrupt act, as having been OBJ
tanned by him by fraud and tstion; and
also to set aside several conveyances executed by
Jones to Graham, and by Graham and Jones to
Turney and others, for the purpose of delaying and
hindering the plaintiffs and other creditors Of the
said Jones and Graham from collecting their debts.
The defendant Jones allowed the bill to be taken
rs confessed against him. The other defendants
answered the bill, and amongst other things, de-
fendant Graham insisted plaintiffs did not show any
equity by their bill, to entitle them to come into
court; that far as it respects him, it is simple
suit in equity, upon former decree of a Court of
Equity, for the payment Of money only that court
payment Of that sum of money than it has simply to
decree the amount alleged to be due upon judg-
ment ola court ofaw or upon any species Of contract
or obligation; although the court may, and do,
move DISTINCTIONS which are in the way of the ex-
ercise of its appropriate jurisdiction to enable it to
grant relief i'll such cases; but that It would be
opening new head Of equity to say it should have
jurisdiction Of all money demands, for the purpose
OF testing the question, whether the parties from
whom they were due had been legally discharged
therefrom by proceedings in bankruptcy.
The hearing commenced in January term
last, and the proofs for both parties taken; after
which it was adjourned over to the present term,
and the argument resumed on Monday last.
William g. Noyes addressed the court on behalf Of
U
great many general considerations that pressed upon
him in this case, which might, with advantage, be
urged upon the court iftime would permit lie would
not, however, go into them, desirous as he was to
compress what observations he had to make within
he smallest limits. 1t was sufficient for him to say
hat there was hiatus in this cause at the time he
took charge Of it, and that he only was induced to
assume the charge Of conducting i in consequence
Of the attempt ofdefendant not only to shelter him.
self from the payment of his debt to tho company,
but to add to their loss by seeking to make them
pay large bills of costs and as he thought he could
eventually aid in the purgation Of those claims, he
willing to do So without regard to professional
emolument. 1t was true, as was said by counsel on
the other side, that nothing of pecuniary nature
could induce either counsel to embark in such cause
rs the present, and the difhculty had been In
creased not by any necessity growing out Of
the frame of the bill, but from the desire of the de-
fendant to avoid the payment Of his debt, and
to accumulate costs on the compliments, so as
to make this litigation as burdensome to them as
possible, desire which seems to him not to be JUS
tilted either in theory practice Whenever such
q desire was entertained by party 1t was an at
tempt to commit fraud upon the law, upon the
suiors Of the court and upon the court itself. The
duty of all Of us, said Mr. Noyes, is to tighten lit
cation, to mako it little onerous to clients as pos
sible, but above all to tighten the labors Of the
notwithstanding the voluminous and complexity Of
the pleadngs, and unassisted as we were by any
one who knew any thing about the progress Of this
suit, nothing has been objected to in regard to
side, conversant they in the theory and prac-
tice Of equity, have not been able to detect any
thing in the progress of it, or in our statement ex-
cept that fact; and when We consider that that
has been made by party who has endeavored to
shield himself from his responsibility, we are will
ling that it should be taken for what it is worth.
If the learned counsel who has prepared the de-
PENDANTS had found obectionst to our bill they
have kept them to themselves they have made none.
There has been throughout far as objections are
concerned, an admission of our right to come into
this court, and do come into court properly with
respect to parties. But if the court pleases, there
never yet was to be found pleader who could
please litgous defendant in drawing a bill-it
was always either too long or too short to suit his
taste it contained great deal that he did not like,
and very little that he did like. 1t reminded him
(Mr. Noyes,) of an anecdote of young student Of
one of our colleges, who, after going home in va
cation, was sent by his father to NOW. He took
up the scythe, looked at it-hen turned 1t one way,
then the other, and at last told his father it
wouldn't do-he did not like the hang Of it. oh
very WE'LL said his father, go and hang it your own
way So he walked leisurely over to the next tree,
and hung it up one of the branches. Just so 1t
was with defendant who, although he might not be
willing to hang his adversary, was always willing
to hang up the The gentlemen here, do not
want the Of this bill, of course; and having
waived their objections If they had any, they now
seek to raise them at this very inconvenent stage
Of the cause. But the court will see the conse-
qucnces which would result to parties, if this doc
trne were allowed. They complain of the impu-
ter; but We have made no unnecessary statements
in the bill. The suit has been conducted through
out with the greatest forbearance, and with the
most gentlcmanly courtesy. l speak with regard
to myself. We have undoubtedly charged where the
facts authorized it, inference offraud; but let the
bill be scrutnlzed from beginning to end, and con-
tend that nothing will be found IN il to warrant the
assertions of the counsel, who spoke yesterday, of
the imputations which they alleged were cast upon
Mr.. Graham, his mother, and the other defendants.
Now, in reference to the old lady, whose fault is it
that she is placed in her present position! Il it not
the fault Of her son, who has made her passive
instrument in his hands And if that son had OBJ
served the fourth commandment " Honor thy
father and mother, that thy days may be long in
the land" he never would have placed her in
position to bring her into contact with his creditors;
but if will be indiscreet to do it, the fault
must be his own and not that Of his creditors. Mr..
Graham has denied fraud by his answer, but if he
has been guilty Of il the law will find it; and now
say that II he went into bankruptcy, and in doing so
concealed his property, then he IL guilty of moral
perjury would not have occupied so much OF the
time Of the court this part Of the subject If it
we're not for the remarks made BY counsel on the
other side, in retaliation to what is meant by the
charge Of fraud. Upon this point refer the court
to first Evanss Statutes, p. 36i. l will now pro-
coed, if the court pleases to notice, in the order
/ have marked out for myself, some Of the OBJ
jectons, taken to our progress in this cause; but
before proceed to my points in detail let me advert
to what counsel on the other side said on behalf
of defendant jones' namely, that the bill should be
dismissed as against him, he not being properly
party to the litigation. But, as said before, he
allowed the bill to be taken as confessed against
him; he has, therefore, admitted the conveyance
made by him TO Graham in lSil, and also
the conveyance by himself and Graham TO Turney
and all the general allegations in the bill OF fraud
so far rs they alleged by the complaint against
him. He is, moreover, party to our decree, and
apprchend that on that ground we had right to
make him a party to our bill against Mr.. Grs-
ham. Second BARRIERS practice-1th page, Al
Bank Of Erie Us. Mech. That case
decided that joint debtor not served with process,
was necessary party to creditors bill, because,
although no decree obtained against him,
his co-defendant might compel a contribution, and
therefore he was a necessary party. II We omitted
TO make him party to our bill IL would be demur-
able And he was properly party for discovery. IL
he not necessary party his counsel should have
put in demurrer, but he knew he could not, and
he therefore permitted ns to take the bill as con-
fessed. lie also a necessary party as fraudu-
lent grantor, especially when he has not been dis