quent purchaser, knowing nothing of the facts, can neither admit nor deny them? I think not. The injunction will be

dissolved.

Order accordingly.

WILLIAM WESTCOTT V. GIFFORD and COSSABOOM.

If, on examining the complainant's claim of title to timber land, from which the defendant has been restrained from cutting timber, the court is clearly satisfied that the complainant has no title; the injunction will not be retained though an action of trespass for cutting be pending at law; but will be dissolved.

On the thirty-first of July, eighteen hundred and forty-four, William Westcott, with other complainants, exhibited their bill, setting up title to a tract of cedar swamp in Egg Harbor. Westcott claimed as heir-at-law of his father, Blazier Westcott; deducing his title from surveys made in August, seventeen hundred and thirty-nine, and February, seventeen hundred and forty-one. The bill stated, that the defendants were cutting timber on the premises, and were irresponsible, and that an action of trespass for the cutting had been brought in the supreme court, and prayed an injunction.

Injunction was granted on the ninth of August, eighteen hundred and forty-four.

The defendants presented their petition to the court, stating that they and those under whom they claim, had been in possession of the premises for nearly a century, and that the complainants were engaged in cutting timber on the premises and were insolvent, and praying that the complainants might be injoined from cutting. This injunction was also granted.

On the twenty-eighth of August, eighteen hundred and fortyfour, the defendants put in their answer to the bill; and the injunction obtained by the complainants was dissolved in October, eighteen hundred and forty-four.

In November, eighteen hundred and forty-four, Westcott filed a new bill, stating, that since the filing of the first bill he

had discovered that his father had no title to the premises, and setting up a title under George West, deducing title to George West from ancient surveys. On this bill an injunction was granted November twelfth, eighteen hundred and forty-four; so that both parties were again injoined from cutting.

To this bill an answer was put in, and the parties were heard on cross-motions, each party moving to dissolve the injunction. obtained by the other.

Sloan and Browning, for the complainant.

W. Potts and Jeffers, for the defendants.

THE CHANCELLOR, after an elaborate examination of the title deeds exhibited, which it would be unprofitable to report, said, he was satisfied there was nothing in the show of title made by the complainant; that his own exhibits disproved his title; and that the injunction obtained by the complainant, would therefore be dissolved, notwithstanding the pendency of his action at law for the cutting.

The injunction obtained by the complainant, was dissolved, and that obtained by the defendants was retained.

It was said by the chancellor in this case, that an order may be obtained to prove deeds, viva voce, at the hearing, saving all just exceptions; and that on due service of a copy of such order, such proof may be made at the hearing that a deed which requires nothing more than proof of hand-writing, may be so proved : 1 Smith's Ch. Pr. 44.

HARRISON KIMBALL and WILLIAM A. DOLE V.

MonroN et al.

PETER

Courts of equity will not, in general, decree performance of contracts for the sale of personal property; but will decree the execution of trusts of personalty.

Stock in a bank had been transferred to the defendant, to be by him transfer. red in different portions, one portion of which was to be transferred to the complainants. A transfer decreed.

The statute of frauds, requiring declarations of trust to be in writing, does not extend to trusts of personalty.

THE bill states, that Charles Collins, being indebted to the complainants, Harrison Kimball and William A. Dole, did, on the thirtieth of September, eighteen hundred and forty-one, by writing under seal, execute to one Chase, agent of the complainants, an assignment of three hundred and eighty-eight shares of the stock of the People's Bank of Paterson, standing in his name on the books of the bank, as collateral security for the payment of certain notes held by the complainants against him, and in trust, after paying said notes and all expenses, to pay over the surplus to him, Collins, or his assigns; empowering the complainants to ask and receive transfers of the stock to them, and to make transfers thereof, or any part thereof, to themselves or any other persons, and to sell the stock, or any part of it, at not less than seventy-five cents to the dollar; revoking all former powers of attorney given in reference to this stock. That the defendant Peter Morton, then held a power of attorney before then executed by Collins, authorizing him to sell and transfer the stock. That Morton claimed to have received and to hold the power of attorney to him, as security for money alleged to be due him from Collins. That before that time an attachment had been issued in New-Jersey against Collins, at the suit of Perkins, Hopkins and White, on which the stock was attached, and was then pending undetermined. That for the purpose of settling the claims and rights of the parties to the stock, and adjusting their respective interests in it, it was agreed by and between Collins, Morton, Perkins,

Hopkins and White, and the complainants' said agent, that three hundred and seventy-eight shares should be transferred to Morton, and that he should retain to himself, in satisfaction of his demand against Collins, two hundred and fifty shares thereof, and should immediately assign to Perkins, Hopkins and White forty-eight shares thereof, and to the complainants' said agent the remaining eighty shares thereof. That in pursuance of this agreement, three hundred and seventy-eight shares were, on the second of October, eighteen hundred and forty-one, transferred on the books of the bank to Morton, and that on the ninth of November, eighteen hundred and forty-one, a certificate of such transfer was delivered to Morton, for the purposes before mentioned. That shortly afterwards, Chase requested Morton to assign to him the eighty shares for the benefit of the complainants, in pursuance of the said agreement; but that Morton refused, alleging that there were attachments in New-York against Collins, and that he, Morton, might make himself liable.

The bill charges, that no attachment had been issued in New-York, except one in which Morton was plaintiff'; and submits that such attachment in New-York constitutes no lien on the stock, and did not hinder Morton from complying with the said agreement.

The bill states, that the defendant Edward Filly, after the making of the said agreement, and before the term of Febru ary, eighteen hundred and forty-two, of the Passaic circuit court, caused an attachment to be issued out of said court, in his name, against Collins, by virtue of which three hundred and thirty shares of the said stock, standing on the books of the bank in the name of Morton, were attached as the property of Collins. That these three hundred and thirty shares included the eighty shares so agreed to be transferred by Morton to the complainants' agent. That in July, eighteen hundred and forty-two, judgment in the last mentioned attachment was entered in favor of Filly, for thirteen hundred and nine dollars, and that the auditors were ordered to sell the property attached, and did sell to Filly, for fifty dollars, seventy-nine shares of the said stock, the same being intended to be, as the complainants are informed and believe, seventy-nine of the eighty

shares so agreed to be transferred by Morton to the complainants' agent.

The bill charges, that the last mentioned attachment was contrived by collusion and fraud between Morton and Filly, for the purpose of defrauding the complainants of the seventynine shares; that the note on which the attachment was issued was furnished by Morton to Filly, and was fraudulently put in circulation, nothing being due on it from Collins. That Morton pretends he is required by an order of the circuit court of Passaic, to transfer the said eighty shares to Filly, in pursuance of said auditors' sale, and has fixed on the eighth of October, eighteen hundred and forty-two, to make such transfer.

The bill prays that Morton may be injoined from making the transfer, and that the bank may be restrained from permitting it to be made; that Morton may be decreed to perform the said agreement, and transfer the said eighty shares to the complainants or their said agent, or that a transfer may be decreed to be made by a master, or by such person as the court shall appoint for that purpose; that the bank may be decreed to permit such transfer to be made on their books; and that Morton may be decreed to pay to the complainants what he has received for dividends on the said eighty shares since the making of the said agreement.

An injunction was issued, according to the prayer of the bill.

A decree, pro confesso, was made against Filly and the bank.

Morton answered the bill. The substance of the answer will sufficiently appear in the opinion of the court. The cause was brought to hearing on the pleadings and proofs.

A. Whitehead, for the complainants.

A. S. Pennington, for the defendants.

Cases cited on the part of the defendants. 15 Wend. 373; Phil. Evid. 439; 1 P. Wms. 570; 2 Ibid, 305; 12 Ves. jr. 321; Story's Eq. Jur. sec. 29; Bunb. Rep. 135; 10 Ves. jr. 159; 13 Ibid, 37; 3 Atk. 383; 5 Vin. Ab. 450.