are in fact the creatures of a court of equity, and are not to be assimilated, in all respects, to any of the ordinary procedures known to the courts of common law. In that case, if a judgment should be obtained, it would not constitute a lien on the property of either the nominal or real defendant. It could not be enforced by execution. In short, the action is simply the means adopted by the court of chancery to ascertain whether the plaintiff has a cause of action, and, if so, the amount of damages which have accrued. The receiver, within the sphere of his functions, represents the company. By virtue of such a relationship he exercises all its necessary franchises; and, in my opinion, he is its agent appointed, not by the corporate body itself, but by the law, for certain ends of its own. It is the corporation that ultimately reaps the benefits of his services. If he runs the road at a profit the result is its debts are paid, and the surplus earnings are deposited in its coffers. So far as transacting the business of the road is concerned, the receiver does precisely what the directors, if they had remained in the management, would have been required to do. I am at a loss to see, therefore, where the receiver engages employes in such business, why they are not to be regarded as the employes of the company itself. Unless this be so, it is difficult to suggest any principle on which the property of the company in the hands of the receiver is made responsible for the damages resulting from the negligences and misconduct of such employes; and, on the other hand, it is the company that receives the benefit of their services. Nor is it true, as has been sometimes said, that the company has no control over these employes; for this is to deny that the receiver is the agent of the company, for, if he be such agent, the corporation controls these servants through him. In my opinion this view best harmonizes the legal status of property in the hands of a receiver with the general principles of law. From this hypothesis it necessarily follows that, as the company is the real defendant, it is entitled to all the defenses that would have belonged to it if it had appeared in propria persona as defendant on the record; and one of such defenses is that given by the statute in question. No reason appears why such bar should not be held to be applicable to the present situation. Looking at the subject in the light of public policy, there seems to be no propriety in giving a longer life to a right of action arising during a receivership than is given to one arising while the road is in the hands of the directors, for if the investigation in the latter case should not be unreasonably delayed, neither should there be such procrastination in the former. The suggestion in the brief of the counsel of the plaintiff that this limitation to the suit against receivers cannot be justly applied, because these officers, as in the present instance, are often non-residents of the state where the wrong occurred, appears to have but little weight, for when a court of equity grants an order to sue its receiver, it would also, when the necessity existed, direct such officer to enter an appearance to the action. A court of equity never withholds such aid as is within its powers, which is necessary to effectuate its own orders. On this issue the defendant is entitled to judgment.

LOMERSON v. JOHNSON et ux.

(Court of Chancery of New Jersey. February 23, 1888.)

1. HUSBAND AND WIFE-WIFE'S SEPARATE ESTATE-CONVEYANCES-SECURITY FOR PREEXISTING DEBT OF HUSBAND.

When a married woman voluntarily joins with her husband in executing a mortgage on her own real estate, to secure a pre-existing debt of his, a new or independent consideration is not required.

2. SAME-DURESS.

When the creditor of the husband induces the wife to join with her husband in giving a mortgage on her real estate to secure his debt, by telling her that her husband has been guilty of the crime of embezzlement, and can be imprisoned for it, and that another, who was interested, had just said he could see him in jail before he

would do anything to relieve him, and it appears that such statements created fear or just apprehension, the reasonable conclusion is that the free agency of the wife was overcome; that the execution of the mortgage was obtained by undue pressure; and that it cannot be enforced against the wife's real estate.1

(Syllabus by the Court.)

On bill to foreclose.

J. G. Shipman & Son, for complainant. W. H. Morrow, for defendants.

BIRD, V. C. The complainant files a bill to foreclose a mortgage which was given to him by the defendants to secure the payment of a bond given by the defendant Mr. Johnson to the complainant, conditioned for the payment of $6,432.02. Mrs. Johnson files her answer, and resists the foreclosure of this mortgage upon the ground that she was induced to join with her husband, in executing this mortgage upon her separate estate, by unlawful influences, threats of the imprisonment of her husband, the real debtor, and other fraudulent practices upon the part of the complainant, amounting to undue pressure. Mr. Johnson was the executor of his father-in-law's will. The complainant, Mr. Lomerson, became one of his sureties for the performance of the trust. In the progress of the settlement of the estate, Mr. Johnson gave to the complainant two bonds, one for $6,000, and one for about $6,400, secured by a mortgage on certain real estate of Mr. Johnson's. Mrs. Johnson joined in the execution of this mortgage. On the 7th of July, 1883, but a few months after the execution of the mortgage already mentioned, the mortgage now in suit was executed by Mr. and Mrs. Johnson; and the question is, under the pleadings and the proof, whether or not, under the circumstances of the case, Mrs. Johnson is entitled to be relieved from this mortgage. At the time of the execution of this mortgage Mr. Johnson was about 76 years of age, and was feeble in health. However, there is nothing to show that he was feeble in mind, or in any way broken down physically. He was not only about the premises at the time, but he called upon the attorney who prepared the mortgage on the day it was prepared; but whether he asked him to prepare it or not does not appear. Mrs. Johnson, who was well advanced in years, had suffered a good deal of anxiety because of business troubles in the family, and because of the loss of three of her children. But there is nothing in the appearance of Mrs. Johnson, upon the witness stand, nor in her expressions as a witness, which would indicate any incapacity upon her part to understand ordinary business transactions and the reasonable effects to flow therefrom. It will be seen that I must come to this conclusion with respect to Mrs. Johnson, who testifies in her own behalf, in order to give any very great efficacy to her statements as a witness. She says that Mr. Lomerson came to her house, and said that he wanted her to give a mortgage as collateral security for the payment of this $6,400; this being the amount of money due to persons known as the "Hornbacker heirs." She inquired who wanted her to give this mortgage, and Mr. Lomerson said Mr. Shipman, who was a prominent lawyer in the village, and a warm friend of Mrs. Johnson's, and a Mr. McMurtrie, who might be called upon as surety. She replied that she could not do it, and asked Mr. Lomerson if he wanted to send her to the poor-house. She says Mr. Lomerson then said: "If you don't, Levi will go to jail." She inquired who would put him there, and Lomerson said Mr. Shipman would. At this instant her daughter Carrie, who was present, said to her mother, "Don't you do it," when Mrs. Johnson said, "Father cannot live through it," referring to her husband. Mr. Lomerson wanted Carrie to put her lot in also, and she refused to do it. While this interview was progressing, dinner was served. Mr. Lomerson, having been a warm friend of the family for a long time, dined with them. After dinner Mr. James M. Robeson, counsel for Mr.

1See note at end of case.

Lomerson, brought the bond and mortgage, which were executed by Mr. Johnson, and acknowledged before Mr. Robeson, after which Mrs. Johnson signed and acknowledged the same according to the statute. Mr. Robeson has since died, and his testimony cannot be had. Mrs. Johnson says when she signed and acknowledged the execution of the mortgage that she was asked by Mr. Robeson if she executed the same freely, and that she said "No." It appears that the daughter, although not present in the same room, was in the hall very near by, at the time of the execution and acknowledgment of the mortgage by Mrs. Johnson. The daughter's testimony is substantially the same as Mrs. Johnson's. She says that Mr. Lomerson asked her mother to sign the mortgage, and when he said that Mr. Shipman was urging it, and that if father did not sign they would put him in jail, that she said to Mr. Lomerson she did not believe it. She corroborates her mother in saying when her mother was asked if she executed the mortgage freely, she said she did it to keep father out of jail. From her statement it appears that she afterwards inquired of Mr. Shipman and Mr. McMurtrie whether they had had anything to do with this transaction, and was informed by them that they had not. She says that she then went to Mr. Lomerson and urged him to give the property back, and surrender the mortgage. She says that Mr. Robeson was there half an hour, and that her father was present. It is very clear from the testimony in the cause that no proceedings whatever were at that time instituted, or about to be instituted, against Mr. Johnson, the debtor. Mr. Lomerson says, in speaking upon the subject of this interview, that he told Mrs. Johnson and her daughter that Mr. McMurtrie said that, unless she gave a mortgage on her lot, he would see her husband go to jail before he would pay a dolllar of this claim. When Mrs. Johnson asked if they could do that, he replied, saying, “Oh yes, they can; that is embezzlement," and gave them an instance of parties being sent to jail, in Newark, for the unlawful use of trust funds. Then Mrs. Johnson said to her daughter, "Why, Carrie, what shall I do?” And Carrie said, "I would not do it. After further conversation he says that he said to Mrs. Johnson, "If you say you will, I will go and get Mr. Robeson to write the mortgage," and he went. Mr. Johnson went with him. He says that this was in the afternoon; that he went to his home, and returned the next morning; and that when he went into the house the daughter, Carrie, said to him that Mr. Robeson was then reading the mortgage over. Mr. Johnson signed it and stepped out of the room, when Mrs. Johnson signed. He again repeats that all he told Mrs. Johnson was what Mr. McMurtrie had said, and says that Mr. McMurtrie told him that. He positively denies making any threats. He says further that there was nothing due at that time to any of the Hornbacker heirs upon their claim, and also says that no proceedings had been begun.

While the principal contention is with respect to the question whether there was in contemplation of law a contract or not which could be enforced, it is due to the defendants to notice another point earnestly presented, which is to the effect that if this mortgage was not obtained by duress or false representations, amounting to a fraud, or under any other circumstances which prevented Mrs. Johnson from acting as a free and voluntary agent, it nevertheless cannot be enforced, because it is without any new consideration. It was given by the wife upon her separate estate to secure the pre-existing debt of the husband, and is therefore void. Reliance is placed upon the law as laid down in Brandt, Sur. § 9, and Jones, Mortg. §§ 615, 1137, and the case of Pratt v. Hedden, 121 Mass. 116, 117, and Ellis v. Clark, 110 Mass. 389, 392. I do not think a new and distinct consideration has been made requisite in such cases in this state. When the following cases are carefully considered, I think it cannot be claimed that they recognize any such doctrine. Merchant v. Thompson, 34 N. J. Eq. 73, and cases cited therein. It seems to me that if the doctrine had been favored in this state it would have been applied to a portion of the claim in

the case of Campbell v. Tompkins, 32 N. J. E1. 170. See, also, Galway v. Fullerton, 17 N. J. Eq. 389, and Armstrong v. Ross, 20 N. J. Eq. 118.

We come now to the consideration of the main question, which is, does enough appear, by way of proof in this case, to satisfy the judicial mind that Mrs. Johnson was so influenced, by what was said by Mr. Lomerson, as to deprive her of her free agency in the making of this mortgage? There is no dispute but that the criminal liability of Mr. Johnson, the husband, was spoken of by Mr. Lomerson. He admits saying that Mr. McMurtrie had said he would see Mr. Johnson in jail before he would pay one dollar of his claim, unless Mrs. Johnson executed this mortgage. He admits further saying that when Mrs. Johnson asked if that could be done that he said it could, and called her attention to the fact that persons had been put in jail for the wrongful use of trust funds. Now, the moneys which it was sought to secure by mortgaging her lot were trust moneys. Mrs. Johnson was apprised of this fact. It was very well understood that he was greatly in arrear in his payments, and was wholly unable to pay out of his own estate. The two bonds and mortgages which had previously been given to secure the same moneys were thought at the time to be inadequate, although that fact had not been practically determined at the time of the execution of this mortgage, by a foreclosure and sale. The conclusion cannot be overcome that, considering her age, and the condition of the health of her husband, she might have some reasonable apprehensions of disaster to him because of his financial embarrassments. The insistment of Mr. Lomerson that he made no threats directly, when he admits saying that he gave the incidents which I have named, affords no excuse or palliation. If the statements which he made to the effect that Mr. Johnson had been guilty of embezzlement, and to the further fact, upon inquiry by Mrs. Johnson, that for such embezzlement he was liable to be imprisoned, and that he was aware of the fact that several persons had recently been inprisoned for such misconduct, were made by the way of threat, or were made for the purpose of influencing her mind, by Mr. Lomerson, then such statements go very far towards bringing the case within several cases which have had the very highest judicial consideration, and which cases, very properly, have great influence upon my mind. But, upon the other hand, if there were no observations made by Mr. Lomerson by way of threat, such as that Mr. Shipman and Mr. McMurtrie had commenced proceedings against Mr. Johnson already, and that they would put him in prison if she did not give this mortgage, but were observations made in ordinary conversation between friends, he simply answering inquiries according to the best of his understanding, then, very clearly, nothing that he said or did would in itself be illegal, or could improperly influence her free agency. If he undertook to impose upon her, to gain an advantage, even though the words used by him be strictly true, yet, in the eyes of the court of equity, it might be considered very inequitable that he should hold any advantage which he thereby secured. But if the supposed wrong or imposition resulted, not from any design upon his part, but was sought by Mrs. Johnson, in the pursuit of reasonable and proper inquiries, respecting her husband's affairs, a very different case would be presented. Now, my conclusion respecting the testimony is upon this head that Mr. Lomerson went to Mrs. Johnson for the purpose of asking her, and persuading her, to join her husband in the execution of this mortgage; and that, in order to do so, he certainly made allusions to her husband's criminal liability for the wrongful appropriation of trust funds; and that, in order to impress this upon her mind, according to his own statements, he said to her that McMurtrie on that morning declared that he would see her husband in jail before he would pay one dollar unless she joined in the execution of this mortgage upon her real estate; and that in addition to this he gave her the assurance of a friend, when she asked for information, that he could be put in jail for such alleged embezzlement. To this extent the

statement of Mr. Lomerson goes. These statements must have made a most serious impression upon an affectionate and loving wife. It is happy for us that all persons, male or female, are blessed with these tender sensibilities which quickly respond when peril is threatened to a friend, a child, a husband, or a wife. There are several cases in our own reports which throw some light upon this subject, although I believe none of them go further than to lay down general principles, which are always of the utmost value in such cases; such as Wright v. Remington, 41 N. J. Law, 48, 43 N. J. Law, 451; De Ronge v. Elliott, 23 N. J. Eq. 486; Tooker v. Sloan, 30 N. J. Eq. 394. The case of Williams v. Bayley, L. R. 1 H. L. 200, 35 L. J. Ch. 717, considered in the house of lords, is of great interest. In that case a father had indorsed for his son, after which the son forged numerous indorsements. At length the holders of the paper, being bankers, pressed the father for a settlement. There was no proof that the father had ever sanctioned the forgeries, or in any way countenanced the unlawful transactions of the son. The holders of the paper in fact said to the father, “We don't know these to be forgeries; we don't believe them to be so; but your son is responsible for them, and if you don't help him we must sue him for the amount. They did not say in direct words that the son was guilty of forgery, and that they should prosecute and would enforce the penalties of the law. They must have believed they were forgeries; but they said, "We do not wish to exercise pressure on you if, it can be satisfactorily arranged;" and the inquiry was made, "What is the meaning of that?" The inquiry was, "Does the word 'pressure' mean pressure arising from exercising the power, or keeping in the hands of the holders of this paper the means of exercising the power, of instituting a criminal prosecution? Or does it mean the pressure of getting you to make yourself responsible for your son's debt? It must have meant the former, because the context shows that the other was alternatively provided for when it was said, 'We do not wish to exercise pressure, if it can be satisfactorily arranged.' That could not mean, 'If you take upon yourself without pressure, we do not mean to press you.' * * * If you can satisfactorily arrange this, and if you choose,' according to another expression that was used, 'to treat it as a matter of business, that is, to take upon yourself the debt, we will not exercise pressure.' * * * • If you take that upon yourself, it will all go smoothly; if you do not, we shall be bound to exercise pressure,' which could only mean to exercise those rights which remain to us by reason of our holding signatures forged by your son.'" The court put it in this light: "If you choose to take upon yourself the responsibility of these bills, all will be right, but if not, we cannot be parties to compounding a felony." In this case Lord WESTBURY said: "Now, with regard to the first point, namely, whether this was the voluntary act of the plaintiff, I would put two questions -First, what was the basis of the transactions or negotiations between the appellants and the respondents that lead to the security in question? and, secondly, what was the motive or inducement that was brought to bear upon the respondent in order to induce him to give security? It was skillfully contended on the part of the appellants, by their learned counsel, that the basis of the transaction was either the actual or the possible liability of the father for the debt. But that is an argument wholly unsupported by the evidence, and, on the contrary, it is in every way contradicted by the evidence. There is no ground for concluding, from anything that had been said, that the bankers treated the father as a person who was civilly responsible. There was no attempt on the part of the son William Bayley, notwithstanding his distress, to assert at any time that he had the authority of his father. In point of fact the father's aid is invoked throughout upon the basis that the son alone was liable, and that, in addition to civil liability, he had contracted a criminal liability. Now, that is apparent, not only from the passages which have been read by my two noble and learned friends, but from the whole conduct of the