
    FEBRUARY, 1801.
    Herman Le Roy, William Bayard, and Gerritt Boon, Appellants, Against Peter Servis, Peter Little, Samuel Runyions, James Warren, and others, Respondents.
    Where there are several complainants to a bill praying an injune» tion, an affida-, vit by one a? lone, showing probable cause for equitable interposition, is sufficient; and a demur? rer that all have not joiqv ed, is bad, Wlieth r our courts will BR« tcrtain a plea that a contract is illegal, because in contravention of the royal instructions respecting grants of land to patentees ? lilyt A demurrer to a bill because seeking a discovery of that which would subject to the penalties of the act against buying pretended titles, is bad, unless it appear the answer would show a scienter of the seller’s being out of possession, and a subsisting adverse possession. If a plaintiff be properly before the court of chancery for a discovery, he may pray relief, and a demurrer to the whole bill on that account, is bad.
    
      The appellants filed their bill in chancery, stating, that in 1768, Peter Servis, and twenty-four others, presented to Sir Henry Moore, formerly governor of the province of New-York, a petition, praying him, for their use, to purchase from the Oneida Indians 35,000 acres of land, then in the county of Albany, but now in that of Herkimer, and to grant them letters patent for the same, That for money, or some other valuable consideration (not particularly known to the complainants) paid, delivered, or performed, by Sir William Johnson, formerly of the county of Tryon, deceased, and on consideration that he would pay all the office and other fees, on issuing the letters patent, the petitioners agreed with him, that, on their obtaining a grant for the said 25,000 acres, they would hold the same in trust for him, and duly convey the whole to him in fee. That in the year 1769, letters pa» tent were issued for the above lands, in favour of the petitioners, the office and' other fees whereof Sir William Johnson paid; upon which, the patentees did, for the considerations aforesaid, and in pursuance of their said agreement, by sufficient deeds in the law, grant, release, and convey the said 25,000 acres of land, to the said Sir William Johnson, in fee simple, by virtue of which, the said Sir William Johnson took possession thereof, caused the same to be surveyed, and trees to be marked in the boundary lines thereof. The bill then set "forth a regular chain of title, from Sir William Johnson, for 23,000 acres; and also, that after the death of Sir William, and early in the war between the United States and Great-Britain, that Sir John Johnson, the son, and one of the executors of Sir William, had the custody of the conveyances from the patentees., and to guard against their loss, or for some other reason, buried them in the earth, by means whereof they were either wholly lost, or rendered illegible, and were therefore altogether out of the power of the complainants. That Peter Servís and the other defendants, endeavouring to avail themselves of the loss or destruction of those conveyances, and claiming title to the said lands, had brought actions of ejectment for them, wherefore they prayed a discovery, an injunction to stay proceedings in the several ejectment causes, that the complainants might be quieted in then-possession, and that such other and further relief might be afforded, as was agreeable to equity and good conscience. To the- bill was annexed an affidavit of the appellant, Gerritt Boon, swearing, that, according to his knowledge, information, and belief, the material facts charged were true, and that, according to his information and belief, the deed or deeds from the patentees to Sir William Johnson, was, or were lost or destroyed, as in the bill was set forth. To this some of the defendants demurred, and assigned for reasons, 1st, That the complainants ought to have made affidavit, that they had not in their power or custody the deed or deeds, concerning which they seek a discovery, and for the loss whereof they pray relief. 2d, That the agreement between Sir William Johnson and the patentees, as set forth in the bill, was illegal, and not entitled to the aid of a court of equity. 3d, That the bill charged, that the defendants claimed by conveyances executed by persons out of possession, and that a discovery of that fact would subject the defendants to a penalty. 4th, That the complainants prayed a discovery of the defendants’ title, and to be quieted in possession, before the title of the complainants was established at law. 5th, That the title of the complainants, as set forth in the bill, was merely triable at law, where it might be fully ascertained and established, if it was as stated to be. Lastly, That the bill contained no equity. These, they contended, were good reasons for demurrer. 1st, Because,' where it is intended to obtain any specific relief, upon the loss of a particular deed, and thereby give to chancery a jurisdiction, to which it would not otherwise be entitled, in exclusion of the common law; it becomes necessary that the party complainant should annex a satisfactory affidavit to his bill, to inform the court of the loss he complains of, and the necessity of equitable interference. 2d, That such affidavit ought, in the present case, to have been made in different terms, or by all the complainants. Gerritt Boon may have been informed, and may verily believe, and may hope to be able to prove, as he states in his affidavit, that the petitioners named in the bill of complaint, did respective!)?- convey all their right, title, and interest, to Sir William Johnson, and may also have been informed, and verily believe, that the deeds were destroyed, as alleged ; yet the other plaintiffs may not believe any such matter, and may actually have evidence to the contrary, or possess the deeds about which they were inquiring. 3d, That there was not any necessity for changing the jurisdiction from law to equity '; for the complainants, if the aid of chancery was wanted for discovery only, might have the benefit of it on a bill confined to that object. 4th, That the title of the complainants, if any, was a legal title, and that, if Gerritt Boon were able to prove (as he swears he hopes to do) the conveyances to Sir William Johnson, even a discovery would not be wanted. 5th, That if any one of these reasons is good cause of demurrer, the cause must be regularly out of court.
   The Chancellor having allowed all the demurrers respectively, and ordered the complainants’ bill to be dismissed with costs, as to the demurrants, the cause now came before the court, on an appeal from that decision. After hearing argument, the court resolved, 1st, As to the first point, that the authority of precedent was wanting to give it sanction, no sufficient reasons having been assigned, to induce the court to sustain it; that on the contrary, considerations, resulting from inconvenience in all, and utter impossibility in many cases, afforded just grounds for repelling the exception. 2d, That it is considered, no decree on the merits of the complainants’ case is ever made on the evidence contained in the affidavit annexed to the bill; but that as such affidavit is merely to present probable or colourable grounds, for chancery interference and examination, there could be no hesitation in saying-, that •the affidavit of Gerritt Boon was sufficient in terms for that purpose ; and that the exception taken to it must be disallowed. 3d, On the second cause of demurrer, objecting illegality to the alleged agreement between Sir William Johnson and the original patentees, in contravening the salutary principles upon which the instructions of the royal government, regulating colonial grants, were grounded, it is sufficient to say, it has been justly admitted, that this is highly delicate ground ; and that the principles of this objection, if allowed, must attach to it very controling consequences, upon questions of real property in the state: but, on consideration, this does not appear to be included in that class of cases, which have been affected by the principle resorted to, the general consequences of which, in its operation, if sanctioned by this cause, to the prejudice of bona fide purchasers, probably without notice, is an argument why it ought not to be extended. 4th, The third cause of demurrer urges, that the discovery prayed, would endanger the defendants in law, and subject them to a penalty. On this point, as a scienter,■ or knowledge of the seller’s being out of possession, and a subsisting adverse possession, at the time of the sale, are necessary to constitute an offence against the statute alluded to, the answer to this part of the bill, disclosing the fact prayed, might be so drawn, as not to contain any admission which would endanger the defendant in law. 5th, The remaining objection is, that the complainants blended in their bill relief with a prayer for discovery, when, from aught appearing in the case, a court of law, upon the discovery being obtained, is competent to afford adequate ’redress. As the Chancellor’s retaining jurisdiction on the point of relief in this cause, would involve a consideration of the trial by jury, the question presents an aspect peculiarly important. On this point, though there may be sufficient grounds disclosed to change the jurisdiction, yet, as the complainants were properly before the court upon the point of discovery, the defendants were bound to answer this part of the bill; and the demurrer, therefore, to the whole, was not well taken, and ought to have been over-ruled. The cases on this question are contradictory. The law is not bound down by a series of uniform decisions, in a manner not to be shaken, and so as to preclude the consideration of the reason of the rule. Upon this last ground, the reason of the rule, it will be seen, that a decision in conformity to the above opinion, will, at the same time that it discountenances the doctrine of turning round the suitor upon nice and critical exceptions, operate no prejudice to the defendants upon the merits of the question; because a judgment, over-ruling a demurrer in chancery, is, in its effects, in nature of a respondeas ouster in a court of law. The opinion of the court, therefore, is, that the causes assigned do not sustain the decree in this cause, and judgment of reversal must be entered.  