dissented. And, having prepared no written opinion at the time of the decision of the cause, has furnished the reporter with the following statement of the grounds of his dissent.

1st. The executor, in conveying to his son, In August, 1792, was guilty of a fraud. The attempted sale and conveyance have been decreed to be fraudulent and void ; and the case stands as if no such conveyance had ever been made. The •money, then, which it is alleged William Williamson received from Samuel Williamson, was not a part of the proceeds of a •sale of the real estate, but Samuel Williamson’s (he was the ■executor) own money. All that can be said is, that William Williamson received from Samuel Williamson money for which ¡Samuel Williamson in his own right, not as executor, might *621Slave maintained assumpsit. But his remedy was lost by lapse of time. Samuel Williamson cannot be relieved from this position unless a benefit can be permitted to result to him as executor from h‘is fraudulent act as an individual. This cannot be permitted.

And in point of iact, the money, if any was paid to William Williamson, was not money of the estate, but Samuel Williamson’s own money; for the deed to his son was not then made, and was not made until four months thereafter. It is probable that Samuel Williamson did not feel safe in his contemplated fraud in executing a deed to his son, unless he could first induce William Williamson to receive, as on a sale represented to be •consummated, his share of the consideration money of the pretended sale, in full of his share of the estate. I cannot consent, in aid of a fraud -doer, to construe such an ad vance of money ‘by Samuel Williamson to be an advance of money by him as executor.

I think it more consistent with every consideration of policy, and with the firmness with which courts of equity set their faces against fraud, more especially against fraud in executors, that Samuel Williamson shall suffer the loss of the money which, in 1792, he risked in such a venture, than that William Williamson’s estate or Asher Williamson should now be obliged to pay .$2256, with interest thereon from October, 1843.

Twenty years elapsed from the time when the '$350 is said ¡to have been received by William Williamson from Samuel Williamson to the time when the lands of the estate were sold under the direction of a master, the court of chancery having so ordered in view of the fraud which had been committed or attempted by Samuel Williamson; and the proceeds of the sale were deposited in the court of chancery, by order of that court; and was afterwards ordered to be paid to the executor, on his giving bond, with surety, for the performance of the trust reposed in him by the will of his testator.. The bond was given, with Benjamin Johnson, the present complainant, as surety, and the proceeds of the sale, after certain deductions, were thereupon paid to the executor.

It seems clear to me that, neither in law nor in equity, can any allowance be made to the executor or to his surety, for *622money which Samuel Williamson, twenty years before, had fraudulently and of his own money put into the hands of William Williamson.

2d. The decree in this case has been reached by allowing the executor, or Johnson as his surety, interest on the $350 fraudulently given by Samuel Williamson, in April, 1792, to William Williamson ás his full share of the estate. This, also, I think erroneous. It would be oppressive and ruinous, after a great lapse of years, to charge a man with interest on money which he received as his own; and was, therefore, at liberty to spend as his own; and there is no principle on which such charge can be sustained. If my first objection to the decree could be overcome, the most that equity could require would be, that what William Williamson received from Samuel Williamson should be deducted from the amount of the share which, after the fraud was exposed and remedied, was found to be actually due from the executor to William Williamson. Samuel Williamson was in possession of the lands from March, 1789, to March, 1812. All that can be required is that, the $350 shall relieve the executor from the rents and profits, as far as it will go. William Williamson never agreed to receive this money in a way to charge him with interest for it; and under the circumstances of this case, no implied ¡agreement by him to pay interest for. it can be raised.

On the 2d April, 1792, William Williamson received from Samuel Williamson, - ' - - - $350 66

Samuel had then been in possession of the lands three years and twenty days. William Williamson’s fifth of the rents and profits for that time, at the animal rent fixed by master Linn, is ... 68 75

Samuel’s actual advance was only - - $281 91

At September, 1804, William Williamson’s fifth of the rents and profits had repaid Samuel this ^$281 91.

William Williamson’s share of the rents and profits, from September, 1804, to March 11th, 1812, when the executor delivered up possession, seven years and six months, is $168 75.

*623The lands were sold, under the direction of a master, for ------- $7923 31

Deduct the allowance made for improvements, ------ $505 00

Also the legacies, and the interest on them for twenty years, (which interest, if chargeable upon the lands at all, was a loss inflicted on those interested in the lands by the fraudulent conduct of the executor,) 1280 06-

Also the account of master Linn for superintending the sale,' $173 80; also said

master’s commissions on the money paid into court, $69 24(both which last items of expense grew out of the fraud of the executor,) 243 04'

Deduct also the costs of the complainants in the suit in which the sale by the executor was decreed to be fraudulent, (which costs also grew out of the fraudulent conduct of the executor, and ought properly to be charged upon him, and not upon the fund,) 2021 23—2230 27

Net proceeds of the sales, after all deductions, $5693 04

William Williamson’s-fifth of this balance is $1138 61 interest on $1138 61, from March 11th, 1812, to

February 27th, 1822, the date of the judgment against Johnson, 9 years, 11 f months, 793 67

Wm. Williamson’s share of the rents, &c., as above,. 168 7&

Due the William Williamson share at the1 time the ------ judgment was entered, - $2101 03

The judgment was for $2251 78, only $1.50 more than the result of the above calculation. If we should strike out the allowance made in the above calculation for interest on the legacies, and the expenses of the sale under the direction of a master, and the costs of the suit in which the fraudulent sale by the executor was set aside; all which are, by reason of the fraud of ■ the executor, more- properly chargeable upon him than upon the fund, the amount due William Williamson at the time of iuo judgment will be found to be nearly $1.00 more than the *624amount for which judgment was entered. It is certainly true that all these extraordinary charges upon the fund have been, induced by the fraudulent conduct of the executor; and the loss which William Williamson, or those who are entitled to his share sustain thereby is greater than the loss which the executor or his estate would sustain by being obliged to pay the amount of the judgment recovered against his surety.

Nothing is denied to the executor in the foregoing calculation but interest on $281 91, from April, 1792, to September, 1804;. a very trifling injury, for he was receiving $22 50 of the $281 9beach successive year, in William Williámson’s share of the rents and profits; and interest is properly denied to him; he cannot on any principle be allowed interest on money which he fraudulently induced William Williamson to receive as his share of the .estate, when his share was many times greater. Is the executor to be permitted to charge the estate with all the expenses, and the interest on the. legacies, and the costs consequent upon his fraud and the delay induced thereby in settling the estate, and yet ask interest on the sum which he advanced for the purpose of effecting his fraudulent design; a small sum, indeed, when advanced, but which, with interest from 1792 .to the time of the decree in chancery, compounded as in master Reading’s report,, amounted to more than the whole amount of the judgment recovered for the share of William Williamson.

The oppressive result of an affirmance of this decree on the one hand, and the very slight injury, if any injury at all, that can be complained of on the other side, if matters are left to stand as they were placed by the judgment, are considerations which constrain me to refuse my assent to an affirmance.

I cannot imagine that any member of the court could consider the executor himself entitled to any relief. The consideration that the complainant was a surety for the executor has, I have no doubt, influenced the mind of the court. But, if the principal has no legal or equitable defence or right, by reason of a fraud committed or attempted prior to the time when the bond with surety was given, can the surety have any such defence or right? If the principal was not entitled to. interest on the money fraudulently advanced by him long before the bond with surety was given, can the surety be entitled to have such in*625tcrest allowed in his favor ? I think not. An executor’s giving security after a past fraud cannot cure that fraud in favor either of the principal or of the surety. And surely the conduct of this surety has not been such as to induce us to resort to constrained reasonings, or to compound with sophisms, in his favor. This leads me,

3dly, To another objection against affirming the decree to which, as it seems to me, no satisfactory answer has been given. It is this: While the suit against Johnson was pending, and before judgment had been recovered therein, Johnson, without consideration, and for the purpose of defeating the object of the suit, conveyed all his real estate to Ms son and daughter. This divested him- of all title to or interest in the lands, as much so as if he had received a full consideration therefor. He could not, by any proceeding on his part, recover back the land, or any part of it: nor, if a judgment was recovered against him for too much, in the suit which the conveyance was intended to defeat, and the creditor levy upon and sell the land, on the ground that, the fraudulent conveyance of it did not put it beyond his reach, and the fraudulent grantees buy the land at the sheriff’s sale and pay the judgment, can the fraudulent grantor have the aid of a court of equity to recover back the excess of the judgment over the true amount for which it should have been entered. To allow him to do this would be to allow him to recover a part of the proceeds of the sale of the land which he had fraudulently conveyed, and of all interest in which he had fraudulently divested himself, when he would not be allowed to recover back the land or any part of it.

Johnson can derive no aid from the fact that his deed to his children contained a warranty against incumbrances. There was no incumbrance at the time the conveyance was made; the judgment had not then bean recovered. Nor has he paid the judgment, unless a court of equity can be willing to say he has paid the judgment because he fraudulently conveyed away his property for the purpose of defeating a creditor of the end and object of his suit. 3 confess I am unable to yield to the course of reasoning which the Chief Justice has adopted in answer to this objection. And I am quite as unable to imdergiand the precise meaning of the Chief Justice hi saying that uUe *626(Johnson) conveyed the premises to his children legally subject to the judgment, and was therefore legally liable over to them.”

I do not see that this surety can reasonably ask a court of equity to depart from settled and most salutary principles to relieve him from the effects of his own fraud. The claim of the complainant, in the most liberal view in which it can be presented, may be stated thus: A surety for an executor, believing that the executor, who was dead,, had in his lifetime paid and taken a receipt for a portion of a elaim existing against him, but being unable to- find the receipt, makes no defence to a suit against Mm, the- surety, but, for the purpose of defeating the creditor, before judgment is entered, fraudulently conveys all his property to his children; judgment is afterwards entered, and execution is issued thereon and the ski» recovered is raised by a sale of the lands conveyed to the children ; the receipt is afterwards found and it thus appears that the judgment was for too much. Will a court of equity decree to the fraudulent grantor the amount of the receipt ? Suppose that after the fraudulent conveyance the receipt is discovered and the judgment is thereby prevented; would a court of equity decree the reconveyance of the lands to the fraudulent grantor ? In my judgment an affirmative- answer to either of these questions cannot be- reached by sound reasoning.

Again, the decree is against Asher Williamson, and1 the amount q£ it is ordered to be raised out of the goeds and chattels, lands and tenements of Asher Williamson. The judgment was recovered by him and the amount thereof was- received by him as the. administrator &c. of William Williamson.

There was an allegation in the first bill that Asher Williamson, before he obtained letters of administration of the personal estate of William Williamson the younger, deceased, purchaseg from the- heirs of the said William, or some of them, their claim against the executor, Samuel. If it had been shown that Asher had purchased the rights of the heirs of William Williamson, the decree, if right in other respects, might have been against Asher. personally; but no proof of such purchase appeared ; and the second bill contained no such allegation.

I think the decree should be reversed.

delivered the following opinion.

It appears by the state of the case in this cause, (consisting of 155 closely printed octavo pages,) that William Williamson the elder, died seized and possessed of certain real estate, in this state, sometime in the year 1765; having first made and executed his will, by which he gave to his wife the use of all his estate,' real and personal, during her widowhood, and after her death or marriage, directed his executors to take the same in possession and dispose of the same; that within two years after such event they should sell the lands; that out of the monies arising from such sale, the executors, in three years thereafter, should pay certain legacies to his two daughters and divide the residue equally among his five sons, Cornelius, Samuel, John, "William and Abraham, and his two daughters, Micha and Margaret, except that Abraham should have £100 more than the rest; and appointed his sons Cornelius and Samuel his executors. That the widow lived on the premises until she died, which was in December, 1787. Cornelius, the oldest son, never proved the will, but Samuel did prove the same, on the 16th June, 1774. That on the 11th March, 1789, two years after the death of his mother, Samuel offered the farm for sale at auction, having given previous notice of such sale; that Cornelias and several of the brothers were there, but refused to bid; that Samuel directed his own son Cornelius to bid, and he did bid, for the farm, forty-two shillings the acre. Samuel, the executor, did not then strike it off; but, for want of a better offer, on the 9th of August, 1792, he conveyed the farm to his said son Cornelius, who, soon after, re-conveyed the farm to his father Samuel. That the farm, according to the ancient deeds, contained only 290 acres; but upon a re-survey was found to *613contain about 90 or 100 acres more. That the testator’s son Cornelius took possession of the excess, claiming it as heir-at-law. That Samuel Williamson, the executor, paid the legacies ; that his brother Abraham had died intestate and without issue; and that on the 2d April, 1792, ho divided the residue of the amount of sale of the said farm, at forty-two shillings an acre, into four equal parts, being £127 5s. each; and having retained one share for himself, he, on that day, paid to his brother William Williamson £131 10s. for his share, and took his receipt and acquittance therefor in full. That on the 30lh September, 1793, he paid his brother John in part, and on the 3d of October he paid him the balance, and took his receipt: and that he afterwards, as he alleges, settled with his brother Cornelius for his share, leaving the disputo about the surplus land unsettled. That the said Cornelius afterwards died, leaving a will, and leaving six children, viz.: William, Cornelius, Asher, Joseph, Bernice, Patience and Micha. It further appears, that on the 20th November, 1809, the said children of Cornelius, the brother of Samuel, filed a bill against Samuel, to set aside the sale made by him, and for aft account. The case recites this bill, and the answer of Samuel to the same, which was put in on the 10th July, 1810, and the proceedings thereon; by which it appears, that on the 11th of September, 1811, Chancellor Bloomfield decreed that the solo by Samuel was fraudulent and void ; that the whole farm should be re-sold by him, under the direction of a master; that the sale should be reported to the court, and the proceeds should be brought into court; that the master should take an account of rents and profits from the 11th March, 1789, when Samuel took possession under his own sale, &c. That on the 24th October, 1812, the master reported that the rents and profits which ought to be charged to Samuel amounted to $2760; and that he ought to he allowed for improvements $505. Exceptions wove filed by Samuel to this report, in March term, 1813. On the — day of .—, A. D. —, Samuel Williamson, under the direction of the master, sold the entire farm for the sum of $7923 31; which being brought into court, the cause came on to bo heard before Chancellor Ogden, upon the equity reserved, in September, 1813; and on the 22d October, 1813, the Chancellor made a *614decree, that the master should pay, out of the monies in court, to the representatives of Cornelius, the son of the testator, William Williamson the elder, the one fifth part of the sum of $10,178 21, the aggregate amount of the sales last aforesaid and of the rents and profits reported by the master, after deducting therefrom £100 given to the two daughters, and £100 given by the testator to his son Abraham, with interest from 1792, when those legacies were paid by Samuel, and after deducting also $173 80 for the master’s fees] and that the master should pay over the residue, after deducting the complainant’s costs, to the said Samuel, to be by him disposed of according to the will of his father, upon his giving bond with security, &c. A re-hearing was then moved for and granted. It took place in June, 1814, before William S. Pennington, Chancellor, who, on the 11th June, 1814, decreed that the sum of $523 33, which had been allowed to Samuel for money paid to his brother Cornelius as his share of the proceeds of the first sale, should be stricken out, so as to increase the sum due to Cornelius by that amount, and make it $1744 88, instead of $1221 55; and confirmed the decree in all other respects.

By the decree of William S. Pennington, Chancellor, made in June term, 1814, the share of William Williamson was fixed at $1744 88. For this sum, with interest from the date of that decree, Asher Williamson, as administrator of William Williamson, recovered judgment against Benjamin Johnson, and raised the whole amount on execution.

By the decree of William Pennington, Chancellor, the above sum was too much by the amount of £131 10s. paid by Samuel Williamson to William Williamson on the 2d April, 1792, with interest theréon from that time to the 25th June, 1814, the date of the decree of the first Chancellor Pennington.

The account will, then, stand thus:

25th June, 1814. Amount of share then decreed to be due William Williamson, $1744 88

Deduct from that, 1st, £131 10s. equal to $350 66 Interest at 7 per cent, from 2d April, 1792, to 25th June, 1814, 22y. 2m. 23d. 545 67

------- 896 33

Shows the decree was too much by $848 55

*615As therefore Asher Williamson, as administrator of William Williamson, sued for and received of Benjamin Johnson $848 55 too much, with interest from the 25th June, 1814, Johnson is entitled to recover back that sum, with interest from that time to the 3d October, 1843, the date of master Beading’s report. The account will then stand thus:—

Amount of excess decreed by Chancellor William S. Pennington, the 25th June, 1814, as William Williamson’s share, $896 33

Interest at 7 per cent, from 25th June, 1814, till 4th July, 1824, (when interest was reduced to 6 per cent.) 10 years, 21 days, 622 15

Interest from 4th July, 1824, at 6 per cent., to 3d October, 1843, the date of master Beading’s report, 19 years and 3 months, 1183 92

$2602^45

That there once existed a receipt or acquittance, in writing, from William Williamson to Samuel Williamson, for £131 10s., bearing date the 2d April, 1792, I am entirely convinced. It is established beyond all doubt by the testimony of Mr. Saxton and Mr. Bartles. Their testimony was given at a time when the facts and circumstances stated by them must have been fresh in their memory.

That that writing was surreptitiously abstracted from the office of Mr. Saxton, 1 am fully convinced; at any rate it has been destroyed or lost beyond recovery, and therefore its non-production fully accounted for. I am equally well satisfied it was genuine, and not a forged or spurious instrument; and if so, we are bound to believe that the money mentioned in it was actually paid by Samuel Williamson, according to the tenor of the writing.

It is admitted by the defendant, at least it cannot be denied for the record proves it, that he obtained a judgment against Johnson for the whole amount of William Williamson’s share of his father’s estate, without any allowance for this disputed payment. It is equally true that the defendant obtained the whole amount of that judgment, with interest and costs, by a aale, under execution, of what (at least between him and Johnson) was Johnson’s property.

*616It follows, then, that the defendant actually received, as administrator of his uncle, William Williamson, £131 10s. more than he ought to have done, with interest upon it from the time it became due from his uncle Samuel to his uncle William Williamson, up to the date of the judgment, with interest, again, upon the aggregate amount from that time until he received the money from the sheriff; and, consequently, that the defendant, in fact and in conscience, now owes to Johnson the sum of £131 10s., with such accumulated interest upon it.

Johnson now seeks to recover back this money; and conscience at once asks, why should he not ? The answer to this question has been given us in the shape of various objections, which have been taken and pressed with great learning and ability by the defendant’s counsel.

Before 1 proceed, however, to consider these objections, I cannot refrain from noticing the fact, that for all that appears, the defendant has the money yet, or has applied it to his own use; at least I see no evidence on the record that he has ever paid one dollar of it to the children of William Williamson. If so, he may, in a court of equity, be fairly considered, as to this excess of payment, a trustee for Johnson ; and if he pays it to him under the direction of the chancellor, he is in no danger of being compelled to pay it over again to the children of his intestate, William Williamson.

Nevertheless, this court cannot affirm this decree and compel the defendant to pay back the money to Johnson, unless we can do so upon sound and safe principles, settled and recognized, or at least clearly within the powers and attributes of a'court of equity.

What, then, are the objections urged by the defendant’s counsel ? They are as follows:—•

1. That Johnson has no locus standi in court. He had no’ title or interest in the lands which were sold for the satisfaction of the judgment. He had conveyed the lands to William H. and Clarissa .Johnson, his children, in fee, for the fraudulent purpose of defeating the judgment creditor. That that conveyance, although void as against the plaintiff in execution, was valid and effectual to all intents and purposes, in law and in equity, as against him; that if an excess of money had been *617raised by the sheriff on the execution, he must have paid it to William H. and Clarissa Johnson, and not to their father: and, consequently, he has no title to any of the money recovered on that judgment, even if the judgment was for more than it ought to have been. That if there was an error in the judgment, as that judgment was paid by the children, they and not their father were the persons who ought to have come here to get it back. That if he was now living and the defendant was ready and willing to refund the money, he could not safely pay it to Johnson, but would be bound to pay it to his children.

The argument is plausible, but not sound. In the first place^ if it was a fraudulent conveyance the children were parties to that fraud, and could have no better standing, at law or in equity, to recover back that money, than their father had. Ergo, the defendant may retain the excess of the judgment, and the sheriff might have retained the surplus money which arose on the salo. The statement of this result is a sufficient refutation of the argument.

Suppose a judgment clearly shown to have been obtained by fraud, or admitted to have been given by mistake, for twice as much as it ought to have been, would a court of equity refuse relief to the defendant, because he was a bad man and had conveyed away his property to defeat his creditors? Would the court say to him, you are a bad and dishonest man, and therefore we wont help you: we wont relieve you against a plain mistake, or even a judgment obtained against you by the grossest fraud ? I think not.

When a man comes into court to get hold of property which by his own fraud or injustice has got into- the hands of his adversary,, or his title to which is founded in fraud or injustice, a court of equity will not hear him. It is sufficient to say this is not such a case. The maxim cited by counsel, does not apply to it: a court of equity will not inquire into- a man’s character before it will relieve him against fraud, accident or mistake, unless by his own dishonest or unjust conduct he got himself into» the difficulty he wants the court to get him out of.

Cut again: Whether that conveyance from Johnson to luschildren, was a fraudulent one or not, is not a materia! issue in-this cause. The plaintiff in the judgment got his ¡money, sate *618whether the conveyance was fraudulent or not, is of no consequence to him.

Again, whether fraudulent or not, Johnson, was bound by his covenants to his children, and was responsible over to them.. He conveyed the premises, whether with or without consideration, to his children, legally subject to that judgment, and therefore was legally liable over to them. Admitting, therefore, that they, as owners of the land which had been sold to satisfy the judgment, might, in the lifetime of their father, have come into equity to get bask the excess; they cannot do it now; for they have recognized their father’s right to the money by making themselves complainants in this suit, and have thereby estopped themselves from ever claiming the money in their own right. I am, for all these reasons, of opinion that there is nothing in this objection.

2. It is objected, that the order to amend was on payment of costs and serving a copy of the amended bill gratis;. that t/his was a condition precedent and was never performed, so that, in fact, the defendant considered the suit as at an end, and that his counsel told him, when the chancellor pronounced his opinion sustaining the plea and demurrer, that there was an end of the suit, and he might go home and would never hear any more of it.

As to what his counsel may have told him* it can have- no-influence here. He and his solicitor and counsel were in court when the decree was pronounced; and the order- for leave to amend was embodied in the very decretal order sustaining the plea and demurrer. They had notice, then, that the suit was not at an end ; for the decree does not dismiss- the bill out of court, but on the contrary, in its very terms, retains it in court, with leave to the complainant- to amend it. It was the duty, then, of the defendant to attend to it, and follow it up; and if the complainant did' not pay the costs, amend his-bill and serve a copy within a reasonable time,, he should have applied to the chancellor for a final decree dismissing the bill with costs.

As to the- non-performance of the condition precedent, paying fcost-s, &c., it was a mere irregularity, of which the party should have availed himself at the time; but he actually waived it by subsequently applying for leave to answer, and by putting in *619an answer to the amended bill. Instead of doing that,, ho ought to have moved the chancellor to dismiss the amended bill, on the ground that no costs had been paid and no copy served. Ah to the defendant’s having no knowledge of the suit being still in court and of the bill having been amended, it is untrue, unless Mr. Saxton has sworn grossly and wilfully false. But how can the defendant make such an assertion, when, by his own affidavit, he has admitted, and, in fact, expressly stated, that before Mr. Stockton’s death he received notice to appoint another solicitor 1 That he afterwards as expressly denied it in his answer cannot relieve him : hut serves-only to weaken our confidence in other matters sworn to by him in his answer.

3. The third objection is, that the suit had abated by the death of Johnson, and the order made by Chancellor Vroom that it stand revived in the names of the present complainants was a nullity. Coupled with this exception, it was insisted that the deposition oí" Mr. Saxton, mads after that order of revival, and before the subsequent one made by Chancellor Seely, must be ruled out, as extra-judicial, or coram non judice, there being no suit then depending in court.

If I am not mistaken, the deposition of Peter 'Williamson, if not of others on the part of the complainants, stands in the game category, and was taken under the same circumstances. But, however that may be, .it is a full and complete answer to the whole of this matter, that it is too late for the defendant to complain of it. l;i the first place, instead of applying to the chancellor to open the decree and he permitted to answer, and to cross-examine the witnesses, he ought to have moved the chancellor to open the decree, and to declare the suit abated by the death of the complainant; or to set aside all the proceedings which had taken place after the death of the complainant and before the revival of the suit by the order of Chancellor Seély, as coram non judice and void. Secondly, the defendant must be considered as having waived this irregularity by putting in an answer to the bill, taking testimony in the cause, and cross-examining witnesses that had been sworn and examined on the part of the complainant. And thirdly, if he wanted to get rid of the deposition of Mr. Saxton, the defendant ought, to have moved the chancellor, before the cause was heard *620upon the pleadings and proofs, to expunge that evidence as unduly and irregularly taken. If that had been done, the complainant might have re-examined Mr. Saxton before the hearing, and removed the difficulty. But, surely, the chancellor did not intend, by giving the defendant leave to cross-examine the witnesses that had already been examined, to give him an opportunity of making his election among those witnesses, and then on the hearing of the cause to exclude the deposition of Mr. Saxton or of any other witness, sworn under like circumstances, that he chose not to re-examine. This would, in effect, have been to permit the defendant to play a trick on the complainant, and practice a fraud on the court.

It is said, however, by counsel, that Mr. Saxton’s affidavit was a mere voluntary one, upon which no perjury could be assigned. But I am not so clear that the proposition is true. A cause was pending in court, under the decretal order of the chancellor; and however irregularly so, the witness was sworn in that cause.

I am of opinion that the decree appealed from should be affirmed.

Nevius, Whitehead, Randolph and Carpenter, Justices, and Porter, Schence, Speer, Robertson and Spencer, Judges, concurred with the Chief Justice.