Verplank v. Caines

1 Johns. Ch. 57 | New York Court of Chancery | 1814

The Chancellor.

The defendants are not bound to account for, or,' perhaps, to disclose the amount of interest which has been received by them, as the plaintiffs have no right to the same. The interest belongs exclusively to the defendants, under the will of the former husband of Cornelia Caines, aad is a substitute for the rents and profits of the lands sold. But the defendants admit, in their answer, that they have received part of the principal due on the sales of the real estate of the testator, and for this they are accountable ; and it may form ground for the interference of the court in appointing, a receiver. The exercise of this power must depend upon sound discretion, and in a case in which it must appear fit and reasonable, that some indifferent person, under approved security, should receive and distribute the issues and profits, for the greater safety of all the parties concerned. Such a question is not ripe for decision until the hearing, and it cannot be the ground of a demurrer, at ' least, upon the facts charged in this bill. A demurrer, as Lord Loughborough observed, in the case of Brooke v. Hewitt, (3 Ves. jun. 253.,) must be founded upon some certain and absolute proposition, destructive to the relief sought for. It must be founded upon some dry point of law, and not on circumstances in which a minute variation may incline the court’ either to grant, or modify, or refuse, the application. The demurrer is, as to this object, clearly bad; and the rule seems to be settled, that a demurrer is not like a plea, which can be allowed in part: it cannot be separated; and if bad in part, it is void in toto. (Earl of Suffolk v. Green, 1 Atk. 449, Huggins v. York Buildings, 2 Atk. 44. Dormer v. Fortesque, 2 Atk. 282. Baker v. Pritchard, 2 Atk. 389. Baker v. Mellish, 11 Ves. jun. 70.) Lord Eldon says, that where a demurrer is to be overruled for generality, it depends upon the leave of the court, whether the defendant shall put in another demurrer more limited ; or, perhaps, the defendant, during the pendency of the argument, may apply for leave to amend,when the demurrer applies to part of the bill only. Under these explanations, he admits and enforces the general rule.

Demurrer overruled.