Clarkson v. De Peyster

Headnote

Where it appears from the answer of a defendant, that he has in his hands a specific sum which he admits to bo due to the complainant, and other matters in the suit are contested, the court will order the admitted debt to be paid to the complainant» without waiting for a final decree.

Where a sum is reported to be due from a defendant, and he acquiesces in the ver port, but the cause is delayed by other questions, the court will sometimes, order the reported sum to be paid into court. *

Petition of the complainants, children and heirs of Charles Clarkson deceased. The defendant, it appeared, as the guar-, ^an °f ^le complainants., had charged the estate in his accounts, annually rendered to the coguardian, since deceased, with the price of thirty six shares of the,stock of the Manhattan company as: purchased by way of investment, although the same had not in fact been purchased: It further appeared that he- had sold out one hundred shares of the stock of the same company and seventy of the Merchants bank, which he also held as guardian, and that he had in his hands over and above the proceeds of the stock, a considerable sum of money-belonging to the estate of the complainants. The petition further stated that a bill had been filed against 'him, that the cause- was at issue, and the parties were preparing to take proofs, but that with respect to so much of the claims as related to the matters above mentioned, the justice of them was clearly admitted in the answer itself. Prayer that the defen

dant might, without waiting till the cause should be brought to a hearing, be ordered forthwith to replace and transfer * -i i i i stocks and pay to the complainants nine thousand four hundred i and forty four dollars and sixty three cents, of the moneys admitted to be due, reserving all other questions.

that when a controversy arose between parties there was no good reason why that portion of the claim, which was admitted to be clear, should be suffered to be withheld, until a litigation, upon the result of which it in no wise depended, and which might possibly continue for a great length of time, should ultimately be brought to a close. The introduction of the practice contended for was warranted, he said, by the English authorities, and would greatly tend to the advancement of justice. He cited 8 Vesey, 68 and 466. 5 Vesey 844. 1 Vesey &. B. 50. 12 Vesey, 28. 13 Vesey, 92. 14 Vesey, 177. 6 Vesey, 250 and 738. 3 John. ch. 1. 2 Mad. ch. 206. 304. 383. 3 Bro. ch. 365. 1 Dessau, 302.

Mr. W. Slosson for the defendant,

insisted, that the motion was novel and unprecedented, and that the complainants ought to wait till the regular hearing of the cause, unless they would accept the stock and money prayed for, and dismiss their bill. A similar application had, he said, been made'by the complainants to the late chancellor and refused.