
    JOSEPH H. VAN MATER, JR., v. DANIEL HOLMES.
    1. The bill stated that in January, 1842, H. V. and J. V., in consideration of $10,000, conveyed to the complainant a farm; that the agreement for the sale had been concluded some days prior to the execution of the deed ; that the deed was recorded a few days after its delivery. That at the delivery of the deed the complainant, was ignorant of the existence of a judgment in favor of the defendant in the bill against the said H. V. and J. V., or that the defendant held a judgment bond against them. That the object of H. V. and J. V. in selling said farm, was to raise money to pay their creditors, of whom the defendant was one, and that the said money was duly applied in the payment of their debts. Thar, during the negotiation for the said purchase by the complainant, the defendant was acquainted with the whole matter, and was told by H. V. of the intended sale to the complainant, and advised the making thereof, and knew that, the complainant was buying the property supposing it to be clear of any judgment in his favor, but that the defendant, after said agreement of purchase and sale had been made, and on the 19th of January, 1842, had a judgment entered up on a judgment bond he held against said H. V. and J. V. That the said H. V. and J. V. had ample real estate remaining in them after the said sale to satisfy the defendant’s judgment, but that he released the same, or large portions thereof, from the lien of .said judgment. That the defendant, before the said sale, held two judgments against the said H. V. and J. V., which had been assigned to him, and that on the 7th December, 1842, they transferred to him a draft for $6000, drawn upon and accepted by certain persons in Kentucky, as collateral security for the payment of his said two last-mentioned judgments, amounting to about $5000, the defendant agreeing, under hand and seal, to apply what he should receive on the said draft, first,, to the payment of his said two last-mentioned judgments, and to account for the surplus. That the defendant received on said draft $5287.52, and did not apply the same on his said two judgments, but raised the amount of said judgments by sales on execution, and now insists on appropriating said money to judgments entered since the said deed to the compiaamnt, and which the defendant holds against the said H. V. and J. V., leaving older judgments unpaid, and thereby charging the complainant’s farm with the amount thereof. And that the defendant has caused an execution issued on his said judgment of January 19th, 1842, to be levied upon the complainant’s said farm. The bill prayed relief, and an injunction restraining sale on the last-mentioned execution. The injunction was allowed.
    2. An answer was put in, and a motion thereupon made to dissolve the injunction. The injunction was retained until the hearing.
    On the 10th of April, 1845, Joseph IT. Van Mater, Jr., exhibited his bill, stating that in January, 1842, Holmes Van Mater, his father, and Joseph H. Van Mater, his uncle, in consideration of $10,000, sold and conveyed to him a valuable farm in Middletown, Monmouth county. That the agreement for sale had been concluded some days prior to the execution and delivery of the deed. That very shortly after the delivery of the deed, to wit, on the 22d of January, 1842, it was recorded in the clerk’s office of Monmouth. That at the time of the negotiation for the purchase of said farm, as well as at the time of the delivery of the deed therefor, he was ignorant of the existence of the judgment in favor of the defendant, Daniel Holmes, for $19,427.36, to secure the sum of $-, or of any other judgment of like character, and he was likewise ignorant that he held a judgment bond therefor. That he was confident ■the estate of the said Joseph H. and Holmes Yan Mater was amply sufficient to pay all judgments then had aud entered against them. That thereupon he purchased said farm at a full and fair price, and accepted a deed therefor, with warranty against all encumbrances. That, the object of the sale of said farm was to raise money for the creditors o'f the said Joseph H. and Holmes Yan Mater, of whom the defendant was one, and the complainant charges that the said money was duly applied in payment of debts of the said Joseph H. and Holmes Yan Mater.
    The bill states that during the time of the negotiation for the purchase of the said property by the complainant, the defendant was acquainted with the whole matter; that the defendant is the brother-in-law of the said Joseph H. and Holmes Yan Mater, and the uncle of the complainant; that he lived near the complainant, frequently saw and talked with him, and had every opportunity of informing the complainant of his judgment, or of his intention to obtain a judgment, before the delivery of the deed to the complainant. That the defendant was told by the said Holmes Yan Mater, the complainant’s father, of the intended sale to the complainant, the price, &c., and advised and counseled the sale being made. That he well knew the complainant was buying said property clear, as complainant supposed, of any such judgment as he now claims against it. That, notwithstanding all this, after the agreement to purchase had been made, and he knew it, as complainant charges, and nothing remained but the execution and delivery of the deed, the defendant, as the complainant believes, went to New Brunswick and had a judgment signed, on the 19th of January, 1842, before a justice- of the Supreme Court, for $19,429.36 debt, and $4 costs, and forthwith sent the record to the clerk’s office of the Supreme Court at Trenton, where it was filed, on the 20th of the same month; and the complainant submits that, under these circumstances, the said judgment is not a lien prior to the complainant’s deed ; that the defendant was bound, in equity, to apprise the complainant of his intended action on his judgment bond, the same bearing date August 31s!, 1841, or of the judgment itself, after the same was signed ; and that his failure to do so — - his standing by, advising the sale, and seeing the complainant purchase without notifying him of any claim or encumbrance, and knowing, too, the embarrassments of the said Joseph H„ and Holmes Van Mater, and the little security their covenants would give to the purchaser — -was a fraud in equity which avoids his judgment as against the complainant.
    That, subsequent to the said conveyance to the complainant, the said Joseph H. and Holmes Van Mater were yet the owners of a very large and valuable real estate in said county; that the defendant’s said judgment was a lien on the said remaining real estate — all which, in equity, must have been first sold to pay said judgment, before the defendant could fall back on the farm, which had been before sold to the complainant.
    The bill charges that there was ample real estate remaining, after the sale to the complainant, to have satisfied the said judgment, but that the defendant, without the assent of the complainant, released and discharged said real estate, or large portions thereof, and, more particularly, he released and discharged from his said judgment, a farm situate in said county, sold and conveyed to one —. Cook, for $13,000, or thereabouts; and the complainant submits that the defendant cannot thus interfere with and destroy the rights and equities of the complainant, and that, by his act aforesaid, he has released and discharged the farm of die complainant from his said judgment, if the same ever was a lien thereon.
    That the defendant held two judgments against the said Joseph H. and Holmes Van Mater, which had been assigned to him, one in favor of Elisha Laird, for $-, or thereabouts, and one in favor of —. Hendrickson, for $-, or thereabouts.
    That on the 7th of December, 1842, a draft drawn by Joseph H. Van Mater, endorsed by Holmes Van Mater, upon certain persons in Kentucky, and by them accepted, for $6000, was assigned to the defendant, as collateral security, to pay him the two judgments last mentioned, amounting, together, to about $5000; and the defendant, at the time of the assignment and accompanying the same, promised and agreed, by writing under his hand and seal, that he would, on the receipt of the balance due on said bill of exchange or draft, apply the proceeds, in the first place, to the payment of the said Laird judgment, and, secondly, to the payment of the said Hendrickson judgment, and, if more than enough for those purposes, he was to account for the surplus. That the defendant received on said draft, $5287.52, as the complainant is informed and believes, and has neglected and refused to apply the said money on the said two judgments, but raised the amount of said judgments by sales on execution, and now, as the complainant is informed, insists on his right to appropriate said money to judgments entered since the said deed to the complainants, and which he holds against the said Joseph H. and Holmes Van Mater, leaving an older judgment, or older judgments, unpaid, and thereby reaching back of the complainant’s said deed, and charging his said farm with the amount thereof.
    The bill states that the complainant is informed and believes, that divers other large sums of money — more particularly $700, or thereabouts — received on a note, given by one —. Cook to said Joseph H. and Holmes Van Mater, and placed in the hands of the defendant’for collection, have never been accounted for by the defendant, nor specifically appropriated by any one to the payment of any particular debt — which said sums, the complainant insists, the law will now apply to the said oldest judgment, in favor of the defendant, and thereby relieve the complainant’s farm of that amount of burden, if the said judgment be. an encumbrance at all thereon.
    That at the time of the said sale to the complainant, the said Joseph H. and Holmes Van Mater were much embarrassed, and that .they have been since sold out at sheriff’s sales, by virtue of sundry executions in favor of the defendant and others; and that they are now wholly without means to respond to the complainant on their said covenants of warranty in their said deed to him ; and that if the farm in question be sold under execution, the complainant will bo entirely without remedy.
    That the defendant has had an execution issued on his judgment of January 19th, 1842, and levied on the complainant’s farm.
    The bill prays that the said judgment may be declared not to be a lien or encumbrance on the said farm of the complainant, or if the court shall think it is an encumbrance, then that an account be taken of all moneys received by the defendant, as before mentioned, and that the same may be credited on the judgments first entered ; or if the court shall think this cannot be now done, they having been paid and satisfied, then that the credit be put upon the oldest unsatisfied judgment; and that the complainant may have the benefit of the doctrine of substitution in those'cases where the defendant has had the option of two funds ; and that a general account may be taken of all moneys which the defendant has received, or might-have received but for his default apon his said judgment, and the complainant’s farm held liable for the balance only; and that in the meantime, the defendant and the sheriff be restrained by injunction from proceeding to sell the said farm of the complainant on the said execution.
    An injunction was granted according to the prayer of the bill.
    The defendant put in his answer on the 7th of April, 1847. He says he has understood, and believes it to be true, that on t he 21st or 22d of January, 1842, Joseph H. and Holmes Van Mater, in consideration of $10,000, sold and conveyed to the conplainant the farm in the bill mentioned, and that the deed therefor was recorded on the 22d of January, 1842; but says he is ignorant whether the said deed was actually delivered on the 21st or 22d of January, 1842.
    He says he is ignorant whether or not the agreement, or any agreement for said farm had been concluded some days, or any other time, prior to the execution and delivery of said deed; but if there was any such agreement concluded prior to the execution and delivery of said deed, he says he was entirely ignorant that any such agreement had been concluded, except that he was told by Aaron Longstreet, a few days before he entered up his judgment, that Holmes Van Mater had agreed to let the complainant have said farm, but that Joseph Van Mater was not willing to enter into such agreement.
    He says he does not know, of his own knowledge, whether or not the complainant, either at the time of the alleged negotiation for the purchase of said farm, or at the time of the delivery of the deed therefor, was entirely ignorant of this defendant’s judgment for $19,427.36; but he says that his judgment bond, upon which said judgment is entered, is dated and was delivered on the 31st of August, 1841; and that he left home on his way to Trenton, on the 17th or 18th of January, 1842, for the purpose of entering up said judgment; and he states that he believes and charges the truth to be, that the complainant, when this defendant so left home, well knew of the existence of the said judgment bond, and that this defendant left home on his way to Trenton for the express purpose of entering up said judgment bond; and he further charges the truth to be, that the complainant, at and before he received his said deed, well knew that this defendant had gone for the purpose of entering up his said judgment bond, or that the complainant had been informed, or had reason to suspect that this defendant had gone to Trenton to enter judgment on his said bond and actually had done so.
    He denies that the complainant, either at the time of the alleged negotiation, or at the time of the delivery of the deed, was ignorant that this defendant held the said judgment bond ; but ou the contrary, he says that at and prior to the date of the said judgment bond, the complainant was indebted to this defendant between $1500 and $1800, for goods and .merchandise previously sold ‘by this defendant to the complainant, for which this defendant held the joint note of the complainant and Holmes Van Mater, and which said debt of the complainant was, at the time of the giving of said judgment bond, at the urgent solicitation of the said Holmes Van Mater, incorporated in and made part of the consideration of the said judgment bond and said note of complainant and Holmes Van Mater, delivered up to said Holmes Van Mater and considered in the arrangement then made as so much cash; all which was done, as this defendant expressly charges, with the knowledge and consent of the complainant; and of all which, this defendant expressly charges and believes, the complainant had full knowledge from the time of the execution of said judgment bond until the actual entry of said judgment.
    He says he is ignorant whether or not the complainant was, either at the time of the alleged negotiation or at the time of delivery of said deed, confident that the estate of said J. H. and H. Van Máter was amply sufficient to pay all judgments then held against them, or purchased said farm upon any such confidence! but he admits the complainant gave a full, fair price for said farm, with full warranty against all encumbrances j but he does not know that the price the complainant gave for it was beyond its actual value.
    He says lie is ignorant whether or not the object of said sale was to raise money for the creditors of said Joseph H. and Holmes Van Mater, but admits that he was and is one of their creditors, and denies that he ever, as one of said creditors, received any of the proceeds of said sale, and says he does not know, and does not believe, that said money was duly applied in payment of debts of said Joseph H. and Holmes Van Mater,
    He denies that, during the time of said alleged negotiation, he was acquainted with the whole matter, further than what is stated in this answer; bat admits he is the brother-in-law of the said Joseph H. and Holmes Van Mater, and the uncle of complainant, and that he lived near the complainant, and frequently saw and talked with him ; but he denies that he had every or any opportunity of informing the complainant of the said judgment, previous to the delivery of the complainant’s deed. On the contrary, he states that he did not return from Trenton, at the time of entering up said judgment, until the 22d or 23d of January, 1842, and which was after the delivery of the complainant’s deed.
    He admits that, from the date of his said judgment bond until he left home for Trenton, as aforesaid, to enter it up, he had every opportunity of informing the complainant of his intent to obtain judgment on his said bond, but he denies that he had any opportunity after he left home as aforesaid, before the delivery of the complainant’s deed; but he says that he made use of no means to conceal his intentions of entering up judgment on his said bond from the complainant; but, on the contrary, he states and charges the truth to be, that the complainant well knew of his said judgment bond from its date, and had no reason to expect or believe that this defendant would delay entering judgment as long as he did.
    He further states that several judgments had been obtained against the said Joseph H. and Holmes Van Mater since the date of his said bond, and others were prosecuting their claims to judgment; and that he had expressly told Holmes Van Mater, several weeks before, that he intended to wait no longer, and meant to enter up his said judgment.
    He states that at, and for a long time previous to, the 17th of January, 1842, the said Joseph H. and Holmes Van Mater were seized of several large tracts of land in Monmouth, (stating them,) and that the following mortgages had been put upon the same, and were then liens upon the same, viz. (stating them); that, besides said mortgages, there were legacies which were prior liens on three of said farms, (naming them,) due Mary Lloyd, of about $4000. That besides said encumbrances, there were, at the same time, the following judgments against Joseph H. and Holmes Van Mater, (stating them,) which were liens on all their real estate. That John Crawford obtained judgment against Holmes Van Mater, in the Monmouth Circuit Court, on the 19th of October, 1841, for about $270, and Garret Smock a judgment against said Holmes Van Mater, in the same court, on the same day, for about $155; and that, on the 17th of January, 1842, there were several suits pending against the said Joseph H. and Holmes Van Mater, which would be ripe for judgment at the next terms of the Monmouth courts, which came on the 4th Tuesday of January and July, and in which judgments were in fact entered, in said terms, one in favor of Frederick Kingston, for about $310, and one in favor of Elisha Laird, for about $2000.
    That on the 6th of April, 1842, he entered up, in the Court of Common Pleas of Monmouth, a judgment by confession, on another judgment bond given by said Joseph H. and Holmes Van Mater to him, for $8106, real debt, $4053, on a judgment bond dated April 5th, 184.2, for other debts owing him.
    That said Joseph H. and Holmes Van Mater gave a judgment bond on the 25th of January, 1842, to one Daniel Van Mater, and judgment was entered in the Monmouth Pleas on the same, on the 3d of February, 1842, for a real debt of $2000, or thereabouts. That executions were issued on the above judgments which had been entered previous to this defendant’s, and were in the hands of the sheriff to be executed ; and that the said Joseph H. and Holmes Van Mater were in the habit of advising with him as to their business j and his advice to them was, generally, to sell their real estate as fast as they could to advantage, to clear off said encumbrances.
    That the farm in the bill mentioned as having been sold to the complainant, at and prior to said 17th of January, 1842, belonged to one Aaron Longstreet, and that said Longstreet, on the said 17th of January, 1842, sold it to Joseph H. and Holmes Van Mater, for $10,000, the deed for which was recorded on the 18th of January, 1842; and that the said Joseph II. and Holmes Van Mater paid for said farm by selling to said Longstreet, Garret Hiers, and Haddock Whitlock the said Middletown Point property at $12,000, and the payments were arranged by paying the said Van Maters $2000 in cash, and by transferring the said Crawford mortgage of $4500 from the said Middletown Point property to the farm so sold by Longstreet to the said Van Maters.
    He says he does not recollect that he was told by said Holmes Van Mater of the intended sale to the complainant, the price, &c.; but he admits that he was aware of the said intended exchange with Longstreet, and which this defendant assented to on the express condition only that the said $2000 should be appropriated to the then existing encumbrances j and he thinks it possible that said Holmes Van Mater may have told him that, in case such exchange was effected, he intended to sell said farm to the complainant.
    He says he has no recollection that he advised and counseled said sale to the complainant, but says that if he did so it was apon the express condition that the purchase money should be appropriated towards paying off the then existing encumbrances.
    He says he never had any communication with the complainant with respect to said sale, and never advised or counseled him to buy it; and he charges the truth to be that the $5500, the balance of the purchase money of said sale to complainant, after taking out the said Crawford mortgage, was never in any way appropriated to pay off said prior judgments and encumbrances.
    He denies that he well knew, or that he had any suspicion that the complainant was buying said property, as he supposed, clear of this defendant’s judgment; on the contrary, he believes and charges the truth to be, that the complainant, at the time he took his said deed, well knew that the defendant had left home for the purpose of entering up his said judgment bond, and that none of the purchase money was, in fact, paid at the delivery of the deed, and that the said Holmes Van Mater and the complainant hurried through the execution, delivery, and recording said deed, for the express purpose, if possible, of getting ahead of the judgment which they well knew this defendant was in the aet of entering up, and that no. part of the purchase money was paid until some time after this defendant’s execution was put into the sheriff’s hands, and was then paid, if it ever has in fact been paid, with the full knowledge of this defendant’s judgment and execution, and was then paid, not because the complainant did not think this defendant’s judgment was a lien as against him, but under the expectation that the balance of said property of Joseph H. and Holmes Van Mater would pay oft’ all prior encumbrances, including this defendant’s judgment.
    He says he was ignorant, at the time he entered up his said judgment, that any agreement had been made by the complainant to purchase, and that nothing remained to be done but the execution and delivery of the deed to consummate the contract, except as hereinbefore stated ; but he admits and charges that, becoming uneasy about his said debt, both on account of the manner in which the said Joseph H. and Holmes Van Mater were acting, and the pressing of other claims to judgment, after having given the said Holmes Van Mater notice that he should enter up his judgment on his said bond, he left home on the 17th or 18th of January, 1842, for Trenton, for the purpose of entering up his judgment in the Supreme Court, to bind all the lands of the said Joseph H. and Holmes Van Mater in this state, and met, at Trenton, his counsel, James S. Green, who having drawn up the necessary papers, this defendant went to New Brunswick to find a Justice of the Supreme Court, where the said judgment was signed by Justice Nevius, with which this defendant returned to Trenton, and caused the same to be filed on the 19th or 20th of January, 1842, and then sent the execution to the sheriff, who received it on the 22d of said month ; and that, having other business at Trenton, lie did not return until the 22d or 23d of said January.
    Tie charges the truth to be that the complainant well knew of liis said judgment bond from the time of its date, and also well knew, when he took his d'eed, that this defendant had gone to Trenton to have it entered up; and that the complainant knew or suspected that the judgment had been actually entered when lie took his deed, and also knew that the execution was in the hands of the sheriff long before he paid a cent of the purchase money ; and he submits he was not bound in equity to apprise the complainant more than he was anybody else, of his intended action on hi.r said bond ; and he denies that he stood by and advised the said sale to the complainant, and that he saw the complainant purchase without in the slightest degree, (this is the language of the bill,) notifying him of any claim or encumbrance.
    He admits that, subsequent to the conveyance to the complainant, the said Joseph 11. and Holmes Van Mater were yet the owners of a very large and valuable real estate in said county, and that l»is judgment was a lien on said remaining real estate as well as upon said farm bought by the complainant; but he submits that, under the circumstances, he was not bound in equity to sell the said remaining real estate first before he could fall back on the farm sold to the complainant; but whether he was so bound or not, he charges the truth to be that all the said remaining real estate, except as hereinafter stated, has been first sold under this defendant’s and other prior executions, leaving a balance on this defendant’s execution, on the 21st of March, 1844. of $3098.44, for the payment of which the said farm sold to the complainant is the only security.
    He denies that, according to the best of his judgment and belief, there was ample real estate of said Joseph H. and Holmes Van Mater remaining, after the said sale to the complainant, to have satisfied this defendant’s said judgment; but he admits that he did, together with the other previous judgment ereditoi’s, release the following portions of real estate, under the circumstances and agreements hereinafter stated, that is to say, he released the said Van Brunt farm, which was sold by said Joseph H. and Holmes Van Mater to one John Cook, on or about the 1st of April, 1842, for about $13,000; but the said farm had, as aforesaid, a previous mortgage encumbrance of $9000, which, with the interest, left about $3500 to be paid by said Cook; and he released as aforesaid, upon the express condition that the whole of the balance of the said purchase money, after paying off said mortgage, except $700, should be paid upon judgments which were prior liens to this defendant’s said judgment, and were also liens upon the complainant’s said farm and the said Middletown Point property ; and he charges the truth to be that all of said balance of said purchase money, except the $700 aforesaid, was paid upon said prior encumbrances; and he states that he was induced to grant said release upon the request of the said Joseph H. and Holmes Van Mater, which request was made, as he believes and charges, with the knowledge and assent of the complainant; and the said release was granted upon the further belief of this defendant that said sale to Cook was a very advantageous one, both for said Joseph H. and Holmes Van Mater and also to said complainant and the other creditors, being, as this defendant believes, for a much larger amount than it would have brought at a forced sale, and as has in fact turned out to be the case, the said Cook, on or about the 23d of October, 1843, having given up the said property to the mortgagees for the amount of their mortgage, and thus losing the whole $3500 which he had paid on the same, over and above the said mortgage ; and this defendant has no doubt that if said sale to Cook had not been made, but said farm had been sold at sheriff’s sale with the balance of the property, it would not have brought any thing over the mortgage, and this would have increased the encumbrances ahead of this defendant’s judgment, and which .would have also been a lien on the complainant’s farm of from $2500 to $3000.
    He admits that he released, with the other judgment and mortgage creditors, his lien on the Bruer farm, to one John Croes, on or about the 1st of April, 1842, which he did at the request of the said Joseph H. and Holmes Van Mater, which, as he believes and charges, was done with the knowledge and assent of the complainant ; and he states that he was induced to grant said release because he thought it would be for the best interest, not only of the said Joseph H. and Holmes Van Mater, but also, of the complainant and the prior judgment and mortgage creditors, as well as all the other creditors of said Joseph IT. and Holmes Van Mater; that the price agreed to be given by Croes was about $5000, which was about $3000 more than the value of said Joseph H. aud Holmes Van Mater’s right in said property, as this defendant believes; and that this large amount was agreed to be given by Croes under the following circumstances — the said Joseph H. and Holmes Van Mater claimed title to said Joseph Van Mater’s farm, the Van Brunt farm, and the Bruer farm, under the will of Joseph Van Mater, deceased, in which will, legacies to the amount of $25,000 or $30,000 were left, among which was one of about $3500 to said Croes’ wife; but it was disputed whether such legacies were or were not a lieu upon the said last-mentioned farms, and there was also a dispute about the title of said Joseph H. and Holmes Van Mater to said Vais Brunt farm, and, by way of compromise, the said Joseph H. and Holmes Van Mater sold said Croes the said Bruer farm for the said sum of $5000, out of which was to be deducted $3000, which was, as this defendant believed then, and still believes, $3000 more than the real value of their interest; but this defendant joined in said release upon the express understanding that all the balance of $2000 should be paid upon the encumbrances prior to his judgment; and he believes and charges that the whole of said $2000 was appropriated towards satisfying said prior encumbrances, and reduced the liens on the farm of the complainant prior to that of this defendant, if the said legacy was a Hen on said real estate, to the whole amount of the purchase money, and if said legacy was not a Hen, then to the amount of said $2000, the amount of cash actually paid by Croes.
    He says he believes and charges that the right and title of said Joseph H. and Holmes Van Mater, in said last-mentioned farm, if sold at sheriff’s sale, would not have brought more than said sum of $2000.
    He submits that he has not, by any act of his, released the complainant’s said farm from the Hen of his judgment.
    He says that, on or about the 7th of December, 1842, the sheriff had advertised to be sold, the property of said Joseph H. and Holmes Van Mater, on the said judgments of Hendrickson and Laird, and that this defendant, as an act of friendship to said Van Maters, advanced to Laird the amount of his judgment, and took an assignment thereof, and that this defendant, Thomas G. Haight, and Hendrick Longstreet, with like motives, also advanced the amount of said Hendrickson judgment, and took an assignment thereof.
    He admits that, on the 7th of December, 1842, a draft drawn by Joseph H. Van Mater, and endorsed by Holmes Van Mater, upon certain persons in Kentucky, and by them accepted, for $6000, was assigned to him as collateral security for said Hendrickson and Laird judgments.
    He states that said draft had fallen due about the 1st of February, 1842, and had been protested for non-payment, and was then in litigation in Kentucky, and it was very doubtful if anything would be realized therefrom.
    He admits that, at the time of the .said assignment of said draft, he executed a writing, under hand and seal, and delivered it to Joseph H. and Holmes Van Mater. He refers to the writing itself, for its contents.
    He says that the plaintiffs in said Hendrickson and Laird judgments were urging the sale, and that, to induce this defendant to delay the sale, for the benefit of said Joseph H. and Holmes Van Mater, they proposed to assign him the said draft, as it was very doubtful if anything could be got by a sale on said Laird judgment, and that the object of the paper this*defendant signed, was merely to show the fact that he had the assignment of the draft; and that as an inducement for him to make the arrangement, he had the privilege of paying off the Hendrickson judgment out of the proceeds of the draft, if he got it before it was collected by sale.
    He admits he has received on said draft $5287.52, but states that he received it in the following sums and at the following times:
    February 23d, 1843.......... ......... .................... $1,600 00
    April 29th, 1843........................... ............... 2,350 00
    October 31st, 1843......................... ............... 1,287 52
    Out of which ought to be deducted $17.06 for his expenses in obtaining it.
    He denies that he wholly neglected and refused to apply the money on the two judgments aforesaid, but states that the first money he received on said draft he appropriated towards paying off the Laird judgment, as far as it would go, and that no sale was ever made under that judgment; but that this defendant, on the receipt of sufficient to pay off the same, considered and treated the same as satisfied; and he denies that he raised the whole or any part of the Hendrickson and Laird judgments, or either of them, by sales of any part of the property of said Joseph H. and Holmes Van Mater.
    He says that other judgment creditors of said Joseph H. and Holmes Van Mater, among others, he believes the Bank of Middletown Point, becoming impatient, forced a sale of the personal property of said Joseph H. and Holmes Van Mater, on the 6th of March, 1843; but the sale was not on the motion of this defendant and those who held the Hendrickson judgment, but was forced on by other judgment creditors without the power of this defendant to prevent it, and the whole amount of the said Hendrickson's judgment paid out of the said personal property, except 157.21.
    He states that on the said 6th of March, 1843, only $1650 had been received by him on said draft, which was not enough to pay off the said Laird judgment, and there was yet great doubt whether anything more would be received on said draft, and that by this means the said Hendrickson judgment was paid, except as aforesaid, without the power of this defendant to pay the same from the proceeds of said draft.
    He says that the said Joseph H. and Holmes Van Mater, on the 7th of January, 1843, drew a draft on him in favor of one Hendrick Longstreet, for $440.67, to be paid out of said first-mentioned draft, which this defendant accepted, on condition that he should receive on said draft enough for the purpose, after paying off said judgment of Laird and Hendrickson ; and that on the 30th of December, 1844, at the request of Joseph H. Van Mater, he paid D. B. Ryall $10 out of the proceeds of said draft.
    That on the 31st of May, 1843, out of the proceeds of said second payment on said $6000 draft, he paid to the sheriff of Monmouth $57.21, the balance remaining due on said Hendrickson judgment.
    That the said sum of $1287.52, received by him on said draft on the 31st of October, 1843, and so much of the sum of $2350, received April 29‘th, 1843, as remained after satisfying said Laird judgment and costs, and the balance of said Hendrickson judgment, and the said draft in favor of Longstreet, and the balance of the note on which this defendant was security to Hendrick Hendrickson, to wit, $1155.30, this defendant received and appropriated, respectively, as and for a part payment and credit on his said last judgment of $8106, and which still leaves a balance on his second judgment of $2258.72 due him; and which sums of $1155.30, April 29th, 1843, and $1287.52, October 31st, 1843, he has credited on his said last-mentioned judgment ; and he insists he had a right to make such appropriation.
    He denies that divers other large sums of money, or any other sums of money, or $700 or thereabouts, received on a certain note given by one Cook to said Joseph H. and Holmes Van Mater, and placed in his hands for collection, has never been in any way accounted for by him, or specifically appropriated by any one to the payment of any particular debt.
    He says that the said Joseph H. and Holmes Van Mater, on the 1st of April, 1837, were indebted to one Hendrick Hendrickson in $850, and gave their sealed bill therefor with this defendant as their security, the interest on which the said Joseph H. and H. Van Mater paid up to April 1st, 1842; that about the 1st of January, 1843, the said Holmes Van Mater assigned to him a note of one John Cook, on which was then due $700 or thereabouts, as collateral security for, and to indemnify him for being security as aforesaid, to said Hendrickson ; which note of $700 this defendant collected from said Cook, and took the same and paid it on the said Hendrickson’s note, and the balance of said note this defendant has paid out of the moneys he has received on said Kentucky draft; and he submits that the $700 note and the said part of the said draft money has been so properly and legally appropriated ; and he denies that the said Cook note was left with him merely for collection, but says it was assigned to him for the purposes aforesaid.
    He admits that, subsequent to the said conveyance to the complainant, the said Joseph H. and Holmes Van Mater were the owners of a very large and valuable real estate, but subject to large encumbrances, as aforesaid; and he denies that there was enough left besides the complainant’s said farm to pay his said judgment; and states that the whole of it has been sold by the sheriff, except as aforesaid, to pay said prior executions; and that there still remains due him, on his said first judgment, $3098.44, April 14th, 1846 ; and he denies that he released any real estate of said Joseph H. and Holmes Van Mater without the assent of the complainant; but he charges that the complainant was well aware of and consented to all the proceedings had in relation to said farms sold as aforesaid to Croes and Cook; and he submits he has not thereby released the farm sold to complainant.
    He admits that he had one judgment against said Joseph H. and Holmes Van Mater assigned to him, viz., the one in favor of Laird ; but says that the other, viz., the one in favor of C. and G. Hendrickson, was assigned to him, Haight and Longstreet.
    He admits that the Van Maters have been sold out, so far as regards the rest of their real and personal estate, by sundry executions in the sheriff’s hands.
    He admits the execution on his said judgment, and that the sheriff, under his orders, intends to sell said farm under his said execution.
    He says he thinks he had heard, before he went to Trenton to center up his said judgment, from A. Longstreet, that in case said exchange with A. Longstreet was effected, it was the intention of the said Joseph H. and Holmes Van Mater to sell said farm to complainant; but he did not know and had not heard of any specific negotiation for the purchase of said property, except as aforesaid.
    He says he did not know or believe, nor does he now know or believe, that.the complainant bought said property free, as he supposed, of this defendant's judgment, unless so far as that the complainant, knowing of this defendant's joint bond, and of his errand to Trenton, the complainant might have hurried the delivery of the deed without paying the purchase money, with the view of getting ahead of this defendant’s judgment. And he denies that he advised selling the property on the terms stated in the bill.
    He says he preferred entering up his judgment at Trenton, because other large creditors had done so, and for greater security, on account of its large amount, and to cover real estate which Joseph H. and Holmes Van Mater owned in other counties ; and he denies that all their real estate was situated in Monmouth.
    On this answer, a motion was made to dissolve the injunction.
    P. Vredenburgh, in support of the motion.
    
      W. L. Dayton, eontra.
    
   The Chancellor.

The questions to be decided on the final hearing of this cause will be — 1st. Whether the judgment by virtue of which an execution has been issued and levied on the farm of the complainant, ever was a lien thereon; 2d. If it ever was a lien, whether the plaintiff in that judgment, by releasing other lands of the defendants therein, relieved the complainant’s farm from the lien of the judgment; and, 3d. Whether certain moneys received by the plaintiff in the judgment, on a draft on third persons given by the defendants in the judgment to the plaintiff therein, as collateral security for prior judgments he held by assignment, should not be applied towards satisfaction of the judgment and execution on which the complainant’s farm was advertised to be sold ¡ the amount of the judgments for which said draft was given as collateral having been made by sheriff’s sale out of other property of the defendants in the judgments, and the money due on the draft being subsequently received by the assignee of said judgments.

.The facts stated in the bill present these questions. To dissolve the injunction and permit the complainant’s farm to be sold under this judgment, at sheriff’s sale, to the highest bidder, while a serious question is pending here whether it can be sold at all under the judgment, would be indiscreet.

The injunction will be retained until the hearing.

The motion to dissolve the injunction is denied.

Costs to abide the event. '

Order accordingly.'  