# Doughty v. Doughty

> New Jersey Court of Chancery · September 15, 1848 · 7 N.J. Eq. 227

URL: https://www.frixlaw.com/law-library/cases/7285778

## Case

- **Full name:** Nathaniel Doughty v. Enoch Doughty
- **Court:** New Jersey Court of Chancery
- **Decided:** September 15, 1848
- **Citations:** 7 N.J. Eq. 227
- **Precedential status:** Published
- **Opinion:** Opinion of the court
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

The Chancellor.
The case made by this bill, unaffected by the answer, would present so strong a case of fraud that the court would bo disposed to deal vigorously with it, and to grant an injunction to the extent prayed. But the answer of the defendant, though not satisfactory, is perhaps sufficient to put the main charge of the bill, the mental incapacity of the complainant at the time of the alleged dissolution of the partnership, in doubt. It is a case in which the complainant’s title is disputed. And if, in view of the answer, the complainant’s case was more clear, the result would only be, that for the present the partnership would be considered as continuing; and in that view of the case, considering the nature of the property, and that the defendant, as is shown by the answer, is only cutting for market, in the same way in which it was done when the partnership confessedly existed, and that no charge is made in the bill of inability in the defendant to respond, and his ability being expressly shown by the answer; it appears to me it would bo going too far to break up the *246 business entirely, by restraining the defendant from cutting.
As to the prayer for an injunction against the defendant’s further prosecution of his suit at law, I think it should be granted. •The bill charges that, notwithstanding the deeds of dissolution, they both, after the complainant’s recovery, went on cutting and hauling to the mill as before; and that the suit is for timber and sawing lumber. The answer admits that the complainant has at different times since the dissolution cut on said lands, but says it was only by permission of the defendant, or, if he has cut without such permission, it has only been as a trespasser; that he, the defendant, has repeatedly requested the complainant to account and settle with him for various .transactions had between them since said dissolution ; and that, in order to compel a settlement, the defendant was at length, and after the lapse of several-years, compelled to commence a suit. And at another place the answer says, that the complainant has since said dissolution also had considerable lumber sawed at the mill and has had sundry other dealings with the defendant, by means whereof he has become largely indebted to him; that-the complainant having been frequently requested to come to a settlement of said accounts, and having always refused and neglected, the defendant at length directed the sawyer at the mill to saw no more lumber for the complainant, and forbid the complainant and his workmen from cutting on said lands, and sued the complainant to recover said sums. These parts of the answer are sufficient to apprize the court that the suit is.for matters connected with the subject of controversy here; and they at the same time furnish something of corroboration to the statements of the bill. It is evident the suit at law brought by the defendant is founded on the assumption of the validity of. the deeds of dissolution and division, the matter in controversy in this court.
An injunction will be allowed restraining the defendant from the further prosecution of his said suit at law.
The cause proceeded ; and was brought to hearing, on the pleadings and proofs, at the term of June, 1848. .
The testimony taken on both sides-is very voluminous. The following abstract gives the substance of it:
*247 TESTIMONY FOB THE COMPLAINANT.
Mrs. Jinn Murphy, for the complainant. She is a sister of the wives of complainant and defendant. She went to live in complainant’s family in 1828, and lived there till Sept. 1834; complainant was sick several times while she lived there. Recollects that he was very poorly in the spring and summer of 1883. During that time he at times was not capable of doing any business, in her opinion; he was at that time under the Doctor’s hands at intervals. Defendant was frequently at complainant’s house during his sickness ; defendant came there to get complainant to go down shore to sign the deeds; she expects to defendant’s ; she knows nothing about the deeds. This was in July, 1833; complainant was in the room, on the bed, lying down, when defendant came. At that time she did not consider complainant fit to do any business. At that time complainant’s wife did object very highly to complainant’s signing any papers. Sho has no recollection of seeing defendant’s wife that day. Complainant’s wife followed defendant into the room where complainant was. The company came about the time they came out of the room. The company were Sherman Clark and his wife and Susannah Clark. On that occasion did not see defendant’s wife there. Witness was there all day. Did not hear complainant’s wife say she was going away that day. Saw complainant go out of the yard with defendant that day; defendant brought complainant back in a wagon, towards night; it was after dinner when they started. Complainant was poorly all that summer. Complainant has no children. Defendant had five children; his son John was born in Nov. 1816 ; John was off at school before 1833, and defendant’s daughter Rebecca was at boarding school in 1833. In August, 1833, she went with complainant to Mark Basset’s ; complainant’s wife was not well enough, and witness had to go with him. On our 'return we came by Daniel Lake’s; complainant called for the deeds, and Mr. Lake told him that defendant had taken them away. Mr. Lake is dead. Complainant, during the sickness I have spoken of, was attacked with fits; witness saw him have one some time in the spring. The reason she went with complainant was that his wife did not like to trust him to go alone, as she did not think him fit to be trusted alone. *248 Recollects that defendant and his son John were at complainant’s house in Aug. 1883, while complainant and his wife were gone to camp meeting. They were overhauling books which were in the desk. Does not know that any books were taken from the house.
Cross-examined. It was on the 4th of July, 1833, that defendant came to complainant’s and took him to sign the deeds ; there were no papers read in her presence that day. Defendant •generally went with complainant to Absecum, when complainant was able to go. Complainant built a house on the Peggy Leeds’ place; thinks it was in the spring before witness moved away from there. He was at work at it then.
In chief. After July, 1833, recollects Daniel Lake’s coming to complainant’s to get his wife to sign a deed. She refused. Witness heard no deeds read on that occasion. On the 4th of July, 1833, she did not consider Nathaniel capable of transacting such business as executing a deed. To witness’s knowledge complainant’s wife was always dissatisfied with complainant’s executing a deed to defendant, and so expressed herself. In witness’s opinion, complainant did not seem to know the importance of what he was doing in executing the deed to defendant. During the spring and summer of 1833, complainant’s wife and witness had to be up considerably with him at night; he was queer at nights, as well as days; he would not let any body sleep. A good while after that, the wife of defendant sat up with complainant, with witness. She has heard complainant call on defendant, since July 4, 1833, to give him up his deeds, and say to defendant he had taken advantage of him. Thinks she has heard it more than once. Has often heard complainant’s wife say to defendant that he had taken the advantage of them in the execution of the deed. Defendant and complainant’s wife used to quarrel every time defendant came over there, for a long time.
Cross-examined. Complainant had John Colyer and Charles Murphy hired before and after July, 1833. Complainant had *249 cord wood cut after that time, she guesses, and she expects they carted it to the landing. After that time, complainant’s team used to cart logs. She can’t recollect any particular time in the spring and summer of 1833 when complainant was confined to his bed. He was up and down; he was very queer during that time; he used to sit about and lay about. Complainant has had workmen employed in making repairs about his house since July, 1833 •, and has built additions to his house since then. She has seen complainant’s team carting wood by where she now lives, since 1833, every year, through the working part of the season; not every day, but now and then; complainant sometimes carts, himself. He has built a small house on the road from Absecum to May’s landing since witness left living with him.
John Collyer for complainant. Is 61 or 62 years old. Has lived in complainant’s family above 14 years; lived there in the years 1832, 3 and 4. Complainant was sick in 1833; he was also sick in 1832. Defendant used to be there, off and on, during complainant’s sickness ; should say complainant had not, during the spring and summer of 1833, his proper senses at times. Witness sometimes followed him when he went from home. When he followed him he did not consider him capable of taking care of himself. Witness had known him well before that time ; he was a smart man at one day. Witness had gone with him by water before that time •, he appeared to be stupid and dumb during the spring and summer of 1833 ; he was confined to his bed at times. During that spring and summer witness did not consider him capable of doing any business. Recollects that defendant came to complainant’s in the summer of 1833 to get him to go down shore to execute a deed. It was on the 4th of July, 1883 ; witness saw them go away together. On that day and at that time witness did not consider complainant capable of doing any business. Recollects on that occasion defendant’s handing a paper to complainant’s wife to look at. Witness believes she objected to complainant’s signing any papers at that time. While complainant’s wife was reading the paper defendant had handed her, defendant, without her banding it to him, took it out of her hand. If defendant’s wife was there at that *250 time witness did not see her. He did not- see her there that day that he recollects of. There was company came there about the time complainant and defendant went out. Saw complainant-•when he came back; did not consider him better qualified to do-business when he came back than he was when he went away. He went to bed sick when he came home; defendant brought him back in the same wagon they went in. During that spring and summer complainant frequently had fits. After the 4th of July, 1833, he recollects the complainant’s going down to Daniel Lake’s to get his deeds, and he appeared to get bewildered; witness tracked his sulkey wheels. He started to go to Daniel iel, Lake’s, the women said. Witness tracked the sulkey wheels round the old road by Ingersoll’s branch, in the direction of Daniel Smith’s. He turned off into a parcel of log roads, and then came home again. After he got home, Bill Pine took him down to Lake’s ; Pine is not now living. Witness has heard complainant’s wife call on defendant to-give up the deed for the property or make satisfaction, or they would commence a suit against him, or some such talk as that, witness believes. Complainant’s wife expressed a great dissatisfaction from the beginning about the conveyance from complainant to defendant for the property.
Cross-examined. He now lives with complainant, as a hired man. Complainant did not do any business of any account during the spring and summer of 1833. Once in a while he used to ride down to Absecum. Once he tried to run away to come down to Absecum. Complainant had spells of sickness several times previous to the spring of 1833. He was worse then than in 1833. He was confined to his bed the first time; the last time he ran about like a crazy man; he could not run the first time.
The reason he says complainant was not capable of doing business on the 4th of July, 1833, was because he was half crazy that day, and had been half crazy for a month before. The reason I considered him crazy on that day was because he rolled up his eyes and stared up about the house; and if you asked him any Question he could not tell you what to do, and had been so for a month before. During said month complainant went to Abse *251 com sometimes. It was a good while after the 4th of July, ’33, before complainant commenced doing business ; and is hardly capable now. Witness lived with him more than five years after July, 1838. When complainant and defendant got back on the 4th July, 1883, witness was in the field, and came to the house. When he got to the house he asked complainant’s wife where complainant was. She said he was sick and gone to bed. Witness did not see him that night after he came home.
In chief. After July 4, 1833, complainant continued in that wild manner spoken of in witness’s cross-examination for some time, and continued crazy in the manner therein spoken of. Witness had to watch him at nights ; and he got away from witness one night. Witness got asleep, and complainant slipped out of the door. His wife called me, and I caught him back of the orchard, near the pond. Witness saw him on the 5th of July, ’33; he was pretty much the same as on the 4th. During complainant’s sickness, in 1833, witness used to see defendant there very frequently.
. The house on the Peggy Leeds’ place was raised late in the fall of 1833.
During the time defendant was Sheriff, the complainant conducted the business at home, was the business man, and had the charge of the business generally, and had all the say. Complainant carried on the saw mill also at that time.
Cross-examined. It was in the fall of 1833 that the complainant repaired the old barn at his house. He moved the old barn across the road and repaired it. During the time defendant was Sheriff, complainant did the business principally about the place; I mean both farms. When defendant was at home he did his share of the business on the two places. They were as one man ; what one did, the other did not object to.
It was in 1833 that complainant ran away from him in the night and he found him back of the orchard. Witness lived at complainant’s while defendant was Sheriff; he worked on defendant’s place as much as he did on complainant’s.
Jos. Hackney, for the complainant. Is 39 years old; was at *252 work at complainant’s, as a carpenter, in the months of June and July, 1883. Recollects complainant’s haying a very severe fit the last of June or first of July, 1833. Witness did not think him for a day or so after the fit, at any time during day, competent to do any business whatever. For days afterwards he had these fits, when he was not competent for the transaction of any business whatever. Some days he appeared to be right; and part of other days he did not appear tobe right. Can’t sajhow long after the complainant had had that fit in the last of June or first of July, 1833, he continued in that way.
Cross-examined. When complainant had the fit, witness was at work on the top of the wagon house. Can’t state the day positively when complainant had that hard fit. Thinks complainant might have been walking about out doors the second day after he had the fit. Can’t remember how long before he had the next fit. Can’t say positively whether the fit spoken of was in the last of June or first of July.
In chief. Is satisfied that complainant had that hard fit either the last of June or first of July.
Israel Hacket, for complainant. Is 46 years old; has been acquainted with complainant 20 or 25 years ; was at work at complainant’s, with Jos. Hackney, in June and July, 1833, at the carpenter’s business. Recollects that the complainant had a very severe fit the last of June or first of July, 1833. For a day or two after that fit, witness did not consider complainant competent to any business whatever, at any time during the day. For several days after I do not recollect whether the complainant was capable of doing any business. Witness thinks after that fit, some parts of days, complainant appeared to be right, and some parts of days he appeared to be not right. By not right, I mean that he was not in his proper senses! He continued some time in that way of not being in his proper senses after the fit he had the last of June or first of July; cannot tell how long.
Cross-examined. Can’t recollect positively the day on which complainant had that fit.
*253 Hugh Lippincotl, for complainant. Is about 60 years old; has been acquainted with complainant and defendant very intimately for 23 years ; has worked at the carpenter’s trade, millwrighting, &c.; has lived at Absecom about 28 years. Complainant and defendant were in partnership when he went there, and witness thought they continued so, till he heard differently, quite lately. Witness sold them hay, and timber for building vessels. Recollects complainant’s being sick during the spring and summer of 1883. Witness sat up with him. During that spring and summer complainant did not know what he was at.. The night I sat up with him he was dreadfully out of his mind; he appeared to be all over the world. Witness was at work at complainant’s in July, 1833. The 29th of July, 1833, he charged complainant and defendant, on his book, with work done for them on the barn at complainant’s down by the saw-mill, about half way between the house of complainant and the house of defendant. Witness frequently saw complainant before the 29th of July; not a week but what he saw him. Before that day witness built there a cider mill during that year ; it might have been before ; it was built in the fall. Witness did not think' complainant had his proper reason then ; witness wanted good hard wood to build the cider mill, such as white oak, as he told complainant; and complainant went and got an old pine log. Witness told him it would not do. It was of no use ; he would have his own way. Witness went to work and finished the mill out of the pine log. They hitched a horse to it and went to grinding apples, and before witness could get his tools packed they tore out one or two teeth; witness repaired it with harder wood, and after he had gone they tore out more teeth and tore it all to pieces ; and no man in his senses would have had a mill built of such wood. It cost $12 or $15, and was not worth $1 when first done. Thinks he built this mill the fall before July, 1833. After that time witness cannot say whether complainant was capable of doing business or not up to July, 1833. He was always on the go, somewhere or other ; sometimes down shore and sometimes at Absecom; but I don’t know whether he did any business or not. During those rides down shore and at Absecom witness did not think complainant in his right mind; his *254 wife was always uneasy when complainant went away unless she or some of the family was with him. This was along before and after July, 1833. During his sickness in the spring and summer of 1833 he was up and down, out and about, and they could not keep him in the house. During this spring and summer he had a very wild look out of his eyes; he talked about very foolish, things a good deal of the time in the conversations witness had with him. Witness did not know but what he had his proper senses when witness was at work at the barn he built for him in July, 1833. Recollects being at complt’s when def’t and compl’t were there when there was considerable paper and silver money on the floor. Witness went into the kitchen and inquired for one of them. . He was told they were in the parlor. Witness opened the door and went in. Complainant was lying on the floor and defendant sitting on the floor. As witness opened the door complainant rolled over on his money to hide it. When he discovered who it was he rolled back again off of it. Witness thought no one in his senses would have acted in that way. He cannot ascertain whether this transaction took place before or after July, 1833. When defendant was Sheriff he was very seldom at home. Complainant went in one of the vessels when witness first went to Absecom, as captain, and was a very smart man. He continued until he was taken sick. Witness was on the beach when he came in sick. They came for witness to sit up with him. Can’t say what year this was. He has never had charge of a vessel since; don’t think he has been capable of taking charge of a vessel since.
Cross-examined. Don’t recollect which of them settled with me for the building of the barn, but think complainant paid most of the bill. Witness expected they were in partnership at the time. He built a saw-mill for defendant five years ago ; he contracted with defendant for building it; he expected they were in partnership at the time'; defendant settled with him and paid him off.
The next work he did after framing the barn at complainant’s was framing a two-story house to go to the Peggy Leeds place, for complainant. He considered this work for complainant *255 alone, and so charged in his book. Complainant told him he had purchased the Peggy Leeds place himself, and it was his own property. Witness supposes there was no partnership about it. This was in the fall of 1833, after the barn was built.
In chief. When he commenced building the saw mill, five years ago, he supposed complainant and defendant were in partnership. Complainant was at the saw-mill when it was raised, •and superintended the raising. The defendant was not there.
Cross-examined. John Doughty was there at the raising. Defendant was on the road from Philadelphia, or at Philadeldhia. Witness built the mill under the direction of the defendant; he furnished the principal part of the timber ; he guesses the whole.
John L. Erwin, for complainant. Is 41 years old; knows the parties ; has a recollection of complainant’s being poorly and sickly in 1832 and ’33; worked for complainant during that period. During the spring and summer of 1833 he considered complainant not competent to do business. Can’t say that complainant did even any little business during that period. During that period, when witness wanted money, he always went to complainant’s wife for it. He did so because he considered complainant incompetent to do business. Recollects hearing the family say that complainant had violent, spasms. Recollects the Doctor’s coming there frequently during the years 1832 and ’33. During the spring and summer of 1833, complainant was up and down, out and about. When asked he would give no directions about his work, but told witness to do as he thought best. He did not seem to know how he wished his work done; did not seem to say much about it; did not soem to take any interest in his business at all. Witness speaks of the years 1832 and ’33. Complainant used to be wandering about the place, but did not •go from home much. His wife appeared to be very anxious about him when he did get away. During that time he appeared to be stupid. Some part of the time during these two years he appeared to be very sleepy; at other times he appeared to be *256 very wild, and could not get to sleep. During the spring and: summer of 1833, witness considered him wholly incompetent to-take care of his person or property.
Cross-examined. He worked at carpenter work for complainant, off . and on, during the years 1831, ’32 and ’33. He boarded at complainant’s.
In chief. Witness went by water with the complainant long-before 1831. Complainant never settled with him during the years 1832 and ’33. Witness did not consider him competent to settle accounts during that period.
Absalom Cordery, for complainant. Is about 52 years old ; has been acquainted with the parties 30 years; recollects complainant’s having a spell of sickness in 1828 or ’29. He was-sick some few years after that; can’t tell the year. Witness, went up several times and sat up with him ; it might have been in 1832 or ’33, but he has' nothing to fasten it on his recollection. In this spell of sickness last spoken of, he appeared tobe very much deranged and out of his mind. Witness recollects sitting up with him on that occasion when he had difficulty in keeping him in the house; recollects his endeavoring to get out,, thinking his vessel was ashore. We had to quiet his mind and endeavor to get him off from it. He had no vessel on shore at-the time. In some of his moves towards going to get his vessel off, he got his shoes, which were new, and said they wanted mending, and got his ends and awls and sewed them about in places. We suffered him to do it in order to take up his time, in preference to his going out; and we would have to watch him. After he was sick he was debilitated; his health was poorly for some time ; but there is no act that occurs to witness’s mind as to the state of complainant’s mind after that time. In 1828 he was very sick. In his last illness he was more deranged than sick.
Cross-examined. Can’t recollect the year when complainant, had the deranged spell of sickness. The last spell of sickness, he was not confined to his bed all the time.
*257 Mrs. Alice Clark, for complainant. Is 47 years old; has been acquainted with the parties 25 or 80 years. Has a recollection of being at complainant’s in the beginning of July, 1833; saw complainant then; he looked emaciated; witness spoke to him; his manner and deportment seemed simple. Thinks defendant was with him ; thought there was some confusion in the family at the time; thinks complainant went off with defendant. The carriage was waiting; saw no such preparation as that complainant’s wife was going away at that time; don’t recollect seeing defendant’s wife there that day.
Cross-examined. This visit was on the 1st, 2d, 3d or 4th of July. Her husband was with her. We took tea at complainant’s ; did not see defendant’s wife there.
Mrs. Susannah T. Smith, for complainant. Is 35 years old; is a sister of complainant’s and defendant’s wife; recollects being at complainant’s in company with last witness in 1833 ; saw complainant there; he and defendant were coming out of the door as we went in; saw there was confusion, but did not know what was the matter ; saw no preparation as though complainant’s wife was going away; don’t remember seeing defendant’s wife there that day; thinks she is confident she was not there-when they got there.
Cross-examined. Thinks defendant’s wife came there after-she had been there some time.
In chief. Thinks she has a slight recollection of defendant’s-wife coming over just before tea. Thinks, if she came, it was about two hours after complainant and defendant had started.
Jonathan Pitney, for complainant. Is 45 years old; is acquainted with the parties, and has been for 20 years. Is a physician ; has been complainant’s physician from 1828 to this time. He attended him in a severe spell of bilious fever in 1828. He was sick afterwards; it was the chronic disease of the liver. Visited him occasionally, but not frequently: on referring to hig *258 books he finds it so. He can state but very little from his own recollection. During the disease of the liver the complainant appeared absent. Can’t say that this disease was in 1832-3. It was since the sickness in 1828. Daniel Lake died June 4,1843.
Cross-examined. Complainant was delirious during the fever in 1828 ; he had a long time of sickness. In that attack witness attended him constantly, sometimes twice a day. At times during that sickness it was difficult to keep him in the house ; he was desirous to get up and go out and wander. In cases of bilious fever the patient is apt to become delirious *, generally, reason returns after the fever is over. Thinks that during the sickness of 1828 persons had constantly to set up with complainant. If there had been anything remarkable in his last sickness, thinks he should have recollected it. Did not see him frequently during his last sickness. He appeared to go about part of the time; sometimes he would come down to witness’s for medicines; at other times, when he got worse, witness would go up there. These facts witness states from his books and not from recollection. Recollects going to see him during his last sickness.
In chief. It strikes him he has been sent for to see complainant when he had fits ; but when it was he don’t -recollect; nor did he ever see him have a fit as he can recollect. Heard persons about complainant say he had fits; but never saw him have one. The disease of the liver did not confine him to his bed, only at times. Can’t recollect that when he was confined to his bed by the disease of the liver he had a fever ; but most likely he had. The patient is not very apt to become delirious under that fever. At the time he was laboring under this- disease he did not appear to be the same smart, active, business man he had been before; should not suppose he was. Recollects going there one day and ■finding complainant lying on his back on the floor, with his knees up and his arms round his knees. Thinks it was in the last sickness.
Maria Tilton, for complainant. Is 33 years old ; the parties are her uncles ; she used to live in complainant’s family ; went *259 to live with him in July, 1832, and left in 1837. Complainant was, during 1832 and ’33, in a poor state of health; he was quite sickly during 1833 ; he was confined to his bed during that year, at times. Recollects his having fits during that year; recollects his having one fit in May, she thinks, of that year. After that fit, thinks he went to Absocom with defendant and his son John, the same day he had the fit. Recollects his having other fits during that year. The fits seemed to get more severe as they increased in number. He had several fits during 1833 ; hut don’t recollect how many. Recollects his having one fit in July, 1833; thinks she does ; thinks it was July, 1833. During the year 1833 complainant did not go much from homo without some person with him. He was, during that year, at times dumb and stupid; at times wild and frantic. During that year, from the knowledge witness has of him, living in the house with him, she did not consider him during that year competent for the transaction of any business of importance. Witness does not recollect any business of importance which he transacted in 1833. She has heard complainant’s wife tell defendant that he had taken the advantage of complainant by getting him to execute a deed to defendant for his property when he was incompetent for the transaction of business. This was during the summer and fall of 1883. Defendant made very little or no reply that she recollects of. Has heard John H. Doughty say, in 1832, that the defendant would not suffer the complainant to. go by water any more. Heard John H. Doughty say, at the same time, that the complainant was not fit to do any business.
Witness was not at borne, at complainant’s, in the first part of July, 1833 ; she thinks she got home the 8th of July, 1833; has heard complainant’s wife tell defendant that unless he would give up the deed complainant had given him, or make them some satisfaction, complainant would institute a suit against him; don’t recollect any reply defendant made. Has heard her tell him this frequently during the time witness lived at complainant’s. After July, 1833, as long as defendant visited complainant’s while witness lived there, complainant complained to defendant about taking away his property. Has heard complainant call on defendant to give him up the deed, frequently, while witness *260 •lived at complainant’s; can’t recollect how often; but more than once. They used to disagree so much about the property that witness used to leave the room frequently when they were disputing. These disputes were after the deeds were executed.
Cross-examined. When she lived at complainant’s he was a man of intemperate habits; drank hard. The severe fit complainant had, that I spoke of, happened just after I returned home in July, 1833, as near as I can recollect. Doctor Pitney attended him in that fit, I think; I think he was quite unwell for two or three days, so as to be confined to the house. Do not know of complainant’s doing any business in 1832 or ’33. When complainant had those severe fits after May, 1833, Doctor Pitney was sent for generally. Don’t recollect of his being there in the fit in May, 1833. Sometimes when we would see the symptoms of these spasms coming on him, his wife gave him medicines the Doctor had left for him, without sending for the Doctor. I did not see him have all the hard spasms ; I saw him have a good many. Thinks that in the fall of 1833 complainant got better. Witness lived with her aunt, the complainant’s wife, as a hired girl.
TESTIMONY FOR DEFENDANT.
Jonas M. Smith, for defendant. Is 44 years old; has been acquainted with the parties 15 or 20 years. He bought of complainant and defendant, in July, 1833, one-sixth of the schooner Uriah, and sailed her until Feb’y, 1835. During the spring and summer of 1833, complainant and defendant sent out bills for different articles, which I brought them. For the most part he settled every trip. Don’t recollect of ever settling with complainant. During the spring and summer of 1833, complainant sent bills by witness for goods. Considered complainant, during that spring and summer, capable of transacting business. In witness’s opinion, in all the business he transacted with complainant during that spring and summer, he considered him competent to perform it.
Cross-examined. Has no bills at present with him in his pos *261 session to freshen his recollection whether he bought any goods for complainant in the spring or summer of 1833 ; but feels satisfied in his own mind that he did buy goods for complainant during that time. Has no recollection of purchasing goods for complainant during June and July, 1833 ; but is satisfied that he did during the year 1833. Has no recollection of complainant’s sending any bills for goods during those months; but he did during that year. From Feb. 1833 to Feb. 1835, has no recollection of settling any of the freights with the complainant. He bought goods for Nathaniel during 1833; but will not confine himself to any particular month during that year. Thinks bills were sent by complainant during that year. He overhauled some of his vessel bills yesterday, but was in a good deal of a hurry. Has no recollection of seeing any, in overhauling yesterday, of complainant’s, dated in 1833.
John P. Cramer, for defendant. Is 44 years old; has been acquainted with the parties 16 or IT years. About the 1st of April, 1833, he commenced working for Wm. Pine in making coal on land of the parties, and worked as late as November. He called on complainant to move him from Wrangleborough to the coaling. Complainant agreed to send his team, and in the morning John Colyer came with the team. During the time he worked at the coaling he was in the habit of seeing complainant constantly ; sometimes oftener than others. During the time I worked at the coaling I considered complainant a man capable of transacting business ; never heard or sawfanything to the contrary until lately. Recollects calling at complainant’s the night of the 2d of July, 1833, for his horses and wagon to go for a woman to attend witness’s sick wife. They had gone to bed, I think. Think complainant got up and’called John Colyer; Col-yer got up and helped witness gear the horses.
Recollects being at complainant’s after that, when he had a lot of clover to mow; is pretty near positive it was after that time. Complainant called in several persons to try the scythe. Thought complainant appeared perfectly rational and sensible and capable of doing business at that time.
*262 Cross-examined. The nearest of the coaling was a quarter of a mile, and the farthest a mile and a half from complainant’s residence. Was not in the habit of seeing complainant frequently previous to 1833; perhaps once or twice a year. Witness was at the mill sometimes once a week, sometimes twice, and sometimes not at all during the week, while working at the coaling ; but when he was at the mill he generally saw complainant there or about home. Don’t know of complainant’s having any fits that year. Never heard anything about his having any fits that year, till a short time ago. During that time he was not very often in complainant’s house; was there, he expects, two or three times. Complainant was in the kitchen part of the house, the night of the 2d of July, 1833, when witness went to the door. He called Colyer and went to bed again, witness supposes. Don’t recollect having seen complainant that day before. Don’t know that he has, particularly, any recollection of having seen complainant on the 4th of July, 1833.
In 1836 he coaled for complainant on the south side of the south branch of Absecom, above complainant’s house. Don’t know what tract that was on. It was, the nearest, half a mile, probably a mile, from complainant’s house, and extended a good deal further. Is positive defendant never forbid his coaling for complainant in that place in 1836.
Mrs. Abigail H. Blackman, for defendant. Is 25 years old, and a daughter of defendant. Recollects complainant’s coming to defendant’s’house in the forenoon of July 4, 1833. He went into the other room with father and brother John ; staid there a while, and then came out and went home. At noon father sent me with the deeds to complainant’s. Witness took the papers defendant gave,' and he told her to give them to complainant, and forjliim to read them. Witness took the papers and gave them to complainant. He was wiping himself at the towel; witness told him what her father told her to tell him; complainant told her to lay them down on the table and after dinner they would read them. It was washing day in our family that day. My mother had intended to have gone down shore that day. Mother went over to complainant’s in the afternoon *263 of that day; In the morning when witness saw complainant at her father’s, and when she took the papers to him, he appeared to he in his right mind and perfectly rational. The day after the 4th of July, 1838, complainant came to father’s house, with his wife, and took my mother to see Mrs. Cramer and her young child.
Mr. Lake asked complainant’s wife first to sign the deeds ; she did not sign them, hut said she would rather look over them. She asked Mr. Lake if she could sign them at any time; he said she could, and then turned to my mother — “ thee not rather, if Sally (complainant’s wife) don’t choose to.” This was the day after the 4th of July, 1833.
The families of my father and uncle were on terms of closest intimacy, and continued so till I left my father’s house, on my marriage, in 1841. Witness was in the habit of visiting complainant’s house several times a day, and lived there at times. Never heard or knew while she visited or lived there that complainant was incapable of transacting business for himself; has seen him doing business in his own house in 1833. Never heard complainant’s wife complain of the dissolution of the partnership.
Cross-examined. She was in her 13th year on the 4th of July, 1833. She did not read the papers her father sent her with; knows they were deeds by her father’s telling her so. Never saw complainant have a fit during 1833, but has heard of his having them.
Charles C. Murphy, for defendant. Is in his 30th year; the parties are his uncles ; he went to live with complainant in May or June, 1832, and lived there till Feb. 1834. Exhibits D, E and F. Complainant’s conduct and actions at the time of the execution of the papers E and F was about the same as they had been previous to that time, some time -before and some time after-wards. Exhibits G and H.
Cross-examined. Has no recollection of Exhibit D being read in his presence when he subscribed it as a witness. Don’t know *264 whether it was executed on the day it bears date or not. The whole of the body of the instrument is in John H. D.’s writing. Recollects that the complainant, during the years 1882 and ’38, was not what a man ought to be. Recollects hearing that he had fits during that year. Never saw him have a fit; has seen him soon after he had one; once, in particular, during the year 1833. During that summer he laid about; sometimes under the tree, and sometimes on a bench under the tree. Thinks that during that summer he did in some measure neglect his business. Has no recollection of the day or the month when Exhibits E and F were executed. The actions and conduct of complainant at the time of executing these papers, and some time before and some time afterwards was such that witness would not have been willing for him to have transacted such business for witness ; though he might have been capable of transacting such business. Don’t recollect seeing the interlineation of the words “ except where the sawyer’s house stands,” in Exhibit F at the time of its execution; thinks these words are in defendant’s writing. Recollects complainant’s being at a camp meeting, at Catawba, in Aug-1833; his wife was with us, and the defendant’s wife. Believes complainant had a fit on the camp ground that day. Saw him soon after, and was satisfied from his appearance that he had had one of those fits. Recollects hearing that complainant had conveyed away his property to defendant, and complainant’s wife was dissatisfied about it ; but whether it was the deed of conveyance or the articles of dissolution he can’t say ; may be both. Exhibits G and H are all in defendant’s handwriting, except complainant’s signature.
In chief. The reason why I considered complainant, during the years 1832 and ’33, was not what a man ought to be, was because I thought he drank too much liquor. The reason why I would not have been willing for him to have transacted business for me was pretty much for the same reason ; that I considered he drank too much.
Cross-examined. Complainant drank very hard during 1832 and ’33,1 thought. During 1833, when he drank so much li *265 quor, I should not have been willing to have had him do business of importance for me. Would not have been willing to have trusted him to transact business of importance for me during 1833, no how.
In chief. The main reason was because he drank too much, and another reason he had those fits or spasms. I considered these fits or spasms to have been brought on by his drinking too much.
Hezekiah Steelman, for defendant. Is 42 years old; has been acquainted with the parties several years. He acted as sawyer at the mill from March, 1831 to Nov. 1833. Some time before I left the mill, the business as with complainant and defendant was separated, and I worked and sawed for each of them separately. After the separation, defendant’s logs were brought to the mill as they were before ; but the complainant’s were marked with a charcoal mark so as to distinguish them. Complainant, after the separation, would sometimes come to the mill, take charge of his lumber, and give directions as to how he wished it sawed. Before the separation, sometimes complainant and sometimes defendant would give directions as to the sawing of the lumber. During the time I sawed for complainant and defendant and for complainant himself, I considered complainant sometimes capable of transacting business, and at other times not capable. Should suppose that when complainant came to the mill he was oftener not capable of transacting business than capable. The reason why I thought he was sometimes not capable when he came to the mill was because I thought he had drank too much liquor. Sometimes, when he came to the mill, I considered him as capable of transacting business as when I first knew him in 1831; but he hardly ever came to the mill but what I supposed he had been drinking some liquor.
Cross-examined. Saw complainant have one fit while I was at the mill; he got upon the hill and was taken with it. Was at complainant’s house afterwards; came there while he had another fit on him; can’t tell the year; it was while I lived at *266 the mill. Sometimes from Jan. 1 to Nov. 20, 1833, I would have been willing that complainant should have transacted business of importance for me. He was very frequently during that period incapable of transacting business; on account of his drinking too much was the reason I considered him incompetent for the transaction of business. Part of the time I coaled for complainant in 1833 and ’34, was on a tract above a little spring called Tarkiln. Defendant never forbid me coaling there for complainant.
Reading lmlay, for defendant. Is 36 years old; has been acquainted with the parties 12 or 14 years; contracted with complainant for finishing a house for him in Nov. 1833, on the Peggy Leeds place; considered him then competent to transact business.
Cross-examined. During November and December, 1833, complainant drank very hard; while in liquor would not have trusted him to do business of importance for me. When not under the influence of liquor, he would have trusted him to do such business for him.
Uriah Adams, for defendant. Is, he believes, as much as 45 years old ; has been acquainted with the parties 20 years; was employed for them in 1831, in screwing up a vessel on shore ; complainant was the main man then in superintending and directing the work; he was at times while there very much in liquor, as far as I could judge; he would often go and lay down when under the influence of liquor.
I considered complainant, from the time of screwing up the vessel, in 1831, to the time of my selling him my property, in 1839, a man capable of transacting business for himself. During all that time, in all the business I had with him, and as far as I knew him, I could see no difference with him as to transacting his business, except when he was in liquor and when I saw him sick, in 1828. He was at that time very sick, and they did not expect him to live. From 1831 to 1839, 1 did a great deal of *267 business for and with complainant, and saw him frequently when I was at home.
Cross-examined. Has no recollection of signing Exhibit I on the day it bears date, further than appears from the date of the paper itself. He don’t recollect any business he had with complainant from April, 1833, up to January, 1834, He is now at work for defendant, building a vessel for him.
In chief. Is perfectly satisfied that Exhibit I. was signed by him on the day it bears date.
Jonathan Pitney, called for defendant. His examination was objected to; but an order had been obtained by the defendant for his re-examination.
He finds by referring to his books that complainant had a very severe spell of sickness in 1828. The first charge in 1833 is May 24. He gives the different charges on his book, running through May, June, July, August, September and November, 1833. Is satisfied that complainant’s chronic disease of the liver commenced in 1832; that is, he commenced treating him for it that year. I state this from using a particular medicine that relieved him that I had never used before for that disease. The medicine I gave him for that disease and the disease together did not wholly incapacitate him for business. While he had this disease and was taking medicine he was in the habit of drinking spirituous liquor ; but not by my advice. He had pains in the bones of his legs, knees, back and sides. I called the pains the rum gout. During all the time I have known complainant he has been in the habit of using spirituous liquor in some shape or other. When not under the influence of liquor he is a sensible man, and as capable of transacting business as ordinary men. Presumes that complainant sometimes called for the medicines himself at my house, at the times charged in my books. Can’t recollect seeing complainant in the months of June or July, 1833, when he was of unsound mind or crazy. In 1828 his sickness, while it lasted, caused delirium. He don’t recollect ever seeing him have a fit. My impression now is that the fits they said he had were caused by excessive drinking.
*268 Cross-examined. I rather think, judging from the medicine I gave complainant, that I treated him for the chronic disease of the liver in 1833. I see by my books that on the 6th of June, 1833-, I gave him a remedy that I had given him before for that disease and pains in his bones spoken of in his examination in chief, and is the same medicine I gave him in 1832 for that disease and the pains, and which relieved him, and which I never used before for that disease that I can recollect of. The charge on my book on the 16th of July, for visit and medicine, it does not appear what the medicine was ; and the charge on the 16th is the same way.
I have said in my examination in chief, that the chronic disease of the liver and the medicine I gave him did not wholly incapacitate him for business; but disease, medicine and liquor, when he drank too much, made him incompetent for the transaction of business. I think while he had this disease and was taking this medicine he drank more or less liquor every day; such is my impression. I might have seen him in the months of June and July, 1833, when he might have been incompetent for the traúsaction of business, and I have no recollection as to the months ; and he might have been so during those months and I not have seen him. I have no personal recollection as it regards time.
In chief. I did not conceive that the medicine I gave him for the disease of the liver and his pains, in 1832 and ’33, made him incompetent for the transaction of business ; but it was the liquor, combined with the disease and medicine, that rendered him incompetent for the transaction of business. If he had have been of unsound mind or crazy for any length of time continuously, I should have recollected the fact.
Dr. Mahlon Canfield, for the defendant. Is 48 years old; is acquainted with the parties; lived in Atlantic county 14 years ; was Collector there; always knew the parties while he lived there ; lives now in Morris county. Exhibits K, L and M on the part of the defendant being shown to him, he says he is the subscribing witness to each of them; and Exhibit N being shown *269 to him, he says he is one of the subscribing witnesses to it. He has not the slightest recollection of the transaction: he only-speaks from seeing his signature to the papers.
Cross-examined. The bill of sale marked K is filled up in the handwriting of his wife. The filling up of Exhibits L and M is partly in the handwriting of his wife and partly in his writing. He was at the house of complainant a good many times while he lived in Atlantic county. He went there in 1825. Complainant appeared to carry on and conduct the partnership business while defendant was Sheriff. Complainant was an active business man at that time; very much so. Remembers complainant’s having a severe turn of sickness; thinks it was in the fall of 1828. Did not consider complainant the same shrewd business man after that sickness that he was before. From the time of Ms sickness and for several years after, my impression is clear that he was not a man fit to do any important business. 1 would not have felt satisfied in making a deal with him; if he offered to trade horses or carriages, or anything of the sort, I would not have dealt with Mm. The time of the execution of the papers K, L, M and N, would have come within the time when I considered the complainant incompetent to do business, although I have no recollection of anything that took place at the time of the execution of the papers. He was a practicing physician when he resided in Atlantic. Exhibit A on the part of complainant, and Exhibit N on the part of the defendant, are in the handwriting of John H. Doughty.
In chief. When he first went into Atlantic he wont into partnership with Doctor Pitney. We lived in the same house while wre were partners, about two miles from the complainant’s. Quit partnership with Doctor Pitney, and removed to Bargaintown, in 1827, about seven miles from the complainant’s. Did not attend complainant regularly in his sickness in 1828. Doctor Pitney was his physician. I saw him once during that sickness. His disease was bilious fever. For six or seven years after complainant’s sickness in 1828, I considered him incompetent to do business.
*270 ' Cross-examined. Met complainant after his sickness in 1828 much more frequently than I went to his house.
In chief. My meetings with him were altogether casual. I was always in the hahit of talking with him when I met him. He was in the hahit of using spirituous liquors freely; it was a daily practice with him to drink. He was frequently under the influence of liquor, hut I never saw him down.
John H. Doughty, for defendant. Is the son of defendant; was horn Nov. 1, 1816; thinks he heard the parties talk about dissolving partnership three or four times before they did so ; heard them talk about it as they were riding in the wagon from home to Absecom or from Absecom home. Think I heard them talk about dissolving in 1881; think it was in the spring of that year. The first I heard of this conversation was at the complainant’s place, in the door yard. Don’t remember who commenced the conversation; thinks he came up while they were talking about it. After I came up they had some conversation about dividing the horses and as to the manner of dividing them. I think it is likely I left them before they finished the conversation.
I heard them talk about dissolving in 1833, just before they did dissolve. I don’t know which party first proposed the dissolution ; they talked about it before they came to terms.
One morning my uncle came over to my father’s; this was the morning of July 2,1833; my uncle said to my father : “ Enoch, I am tired of doing business this way, and let us dissolve.” Father replied, “ What way do you want to dissolve 1” My uncle said, as near as I can recollect, “ You take and make me and my wife a deed for your part of the 100 acres where I live, and your part of the Peggy Leeds place, and let me keep my half of the salt meadow, my half of the twenty acres, and my part of Zack’s meadows, and I will make you a deed for all the rest.” Father then said to him, as near as I can recollect, “ When shall we get the papers drawn 1” My uncle said to him, “Have it done right away.” I think father asked him who he would have to draw them. I think my uncle replied, “ You can set John to *271 draw them.” As near as I can recollect, they then talked over about the teams and other property, debts and the like. They agreed that they should draw the articles of agreement for the balance of the property. I drew the deeds between them ; I mean the deed from my father to my uncle and his wife, and from my uncle to my father. Exhibit N on the part of the defendant, and Exhibit A on the part of complainant, are the two deeds I have just spoken of. The body of both deeds are in my writing. I had before me a large bundle of deeds and title papers when I drew these deeds. Part of them my father gave me, and part of them my uncle brought over from his house and laid them down on the table. The deeds my uncle brought over were, as I understood, a part of the chain of title papers. I begun the deeds on the 2d day of July, and finished them on the morning of the 4th of July. They were signed on the afternoon of the 4th of July. They were signed and witnessed at the house of Doctor M. D. Canfield, in Bargaintown. They went there to make some bills of sale of vessels which they had held in partnership. Exhibits K, L and M, on the part of the defendant, being shown to him, he says he believes them to be the same bills of sale which were executed that day. The deeds were taken along to be executed at the same time. He drove up by Daniel Lake’s from Doctor Canfield’s, and the deeds were acknowledged before Daniel Lake. The body of Exhibit E. on the part of defendant is in his writing. The signatures to it are the signatures of my father and uncle ; it was executed by them in my presence; I recollect its being signed by them. The body of Exhibit F. on the part of defendant is chiefly in his handwriting ; some little of it is not. It is all in his handwriting except a little that my father wrote and a little that my uncle wrote. The part my father wrote is interlined between the 5th and 6th lines from the top ; the words are, “ except where the sawyer’s house stands.” The part my uncle wrote consists of four lines near the bottom, commencing with the words “ blocks and rigging,” and ending with the words fendant got to Doctor Canfield’s; and it does not appear that anything was said to her, or even to the complainant, about such papers, before the complainant and defendant left the complainant’s on the morning of the day on which the papers were executed. And as to the deed from the complainant for the lands therein specified having been read by the complainant’s wife, or even by the complainant himself, the ideáis utterly inadmissible by any one who will read that deed and the testimony as to what passed at the complainant’s house, on the morning of that 4th of July, and as to the time between the defendant’s going there and the complainant’s leaving with him.
And, besides the answer to the charge of the bill as to the reason of the delay, we have the testimony of witnesses, at least two, who testify to their being employed in cutting under the direction of the complainant, and that the defendant did not forbid them. I am of opinion that the silence of the defendant, and his acquiescence in the course pursued by the complainant is a course amounting to a continual affirmation of the complainant’s right notwithstanding the deed, and to a continual reproach on the defendant and expression of a belief that he would not attempt to enforce the deed; and form, if not a justification for the *297 complainant’s delay, yet an excuse in view of which the court cannot, in a case like this, refuse its aid. 1 Story, sec. 529. The time within which a fraudulent transaction may be asked to be set aside depends on circumstances and the sound discretion of the court. White's Eq. Ca. 144, 5. Indeed, a distinguished Chancellor, in 2 Eden's Rep. 280, said, that delay would never purge a fraud while he sat in the court; that every day added to the injustice and multiplied the oppression.
But in this case the lapse of time is entirely too short to defeat the complainant on the ground of delay. No case can be found in which such a lapse of time in such a case was held to be a bar.
And I think the circumstances, above mentioned, accounting for the delay, in connection with the fact that the defendant has not in his answer asked any protection on account of delay, are sufficient to induce the court not to interpose the objection of delay from any considerations of policy, even in reference to the bills of sale for the personal property. It was all one connected transaction ; and I think it should be wholly declared fraudulent and void.
But I am unwilling to consider the partnership as subsisting in reference to the personal property. It will be held to have been dissolved on the 4th of July, 1833.
The defendant will be directed to account for half the rents and profits of the lands, other than the respective farms on which the parties reside, and for half the proceeds of the wood and timber taken therefrom; and for the value of the complainant’s share of the vessels; and for the complainant’s half of the other personal property to an extent sufficient to make up, with what he got, the half of it.
Order accordingly.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7285778. Public record. Not legal advice.