Keeler v. Green and Ridgway. strippings on the bottom of the quarry, but denies that there is any merchantable stone covered by it, or that the access to the quarry is at all injured by it, and alleges that the roads existing at the time of the lease are now open to a greater extent than they then were; and it denies that the face of the quarry is any where covered by strippings, except at the northwest side where some strippings deposited on the adjoining land of the complainant, by his consent, slid down in the quarry and covered part of its face. And the defendants aver that they do not intend to deposit any more strippings on that part of the complainant's farm. The face of the quarry in this lease clearly means the perpendicular sides as opened, and not the bottom of the quarry, a term used in contradistinction to the face, and in a different sense. The deposit was required to be made on the bottom, unless it could not be made without obstructing the working of the quarry or covering the face. If there were good merchantable stone in the bottom which could be quarried to advantage, they ought not to be covered up. But the answer responsively denies that there are any; it responsively denies that the access to the quarry is obstructed by the deposit. This answer is not new matter. But the deposition read to contradict it, if it could be admitted, only says that the deposit impedes the ingress and egress, not that it obstructs it; any deposit would prevent passing over the spot where it was made, but if sufficient room was provided to pass in and out of the quarry, the access is not obstructed; which word does not include "made a little more inconvenient." The answer responsively denies anything that would be a breach of the agreement as to these deposits. The strippings which were deposited on the northwest side of the quarry over its face, whether by accidentally sliding down, or by being intentionally dumped there, were put there in breach of the agreement, and to that extent the injunction must be retained. As to the deposit on the complainant's farm, adjoining the quarry on the northwest side, the answer states that this Shotwell's Administratrix v. Struble. was done with the permission of the complainant; this, though new matter, is not denied by the complainant in his subsequent deposition. He only says that during the first year he gave such license, and did not afterwards give any license. He does not say that he revoked the license, or that he limited it when he gave it to the first year, but only that it was given some time in the first year. Such license would be deemed a continuing license until revoked, and as it no where appears that the defendants intended or threatened to continue depositing after the license is revoked, and as they deny that they intend to continue it, this appears no proper ground for injunction. The injunction must be dissolved, except so much as prohibits the depositing of strippings on or over the northwest face of the quarry. The costs must abide the event of the suit. SHOTWELL'S ADMINISTRATRIX vs. STRUBLE and WIFE. 1. Bill for injunction to restrain proceedings at law upon a note and sealed bill, alleged to have been given when the maker was incompetent, and also through undue influence, and also alleging that there was a pretended consideration of the conveyance or release of some lands, and asking a discovery of the consideration, and of the value thereof. Defendants answer that the consideration of the note was the release of their interest in some lands, but decline to state the value of the lands, on the ground that the release of the lands, and not their value, was the consideration; and as to the bill, that, being under seal, it needs no consideration. Motion to dissolve denied. Defendants must answer fully as to the value of the lands. 2. The complainant is entitled to a discovery of the consideration of the sealed bill, not on the ground that it would be void without consideration, but on the ground that the want of consideration, together with the imbecility of the testator and some undue influence used by the defendant in procuring its execution, might at law render the bill invalid, when the same imbecility or influence would not affect its validity, if given for a plain and acknowledged debt, justly due from the intestate. 3. If the sealed bill was obtained legally and without fraud, though without consideration, the defendants will be entitled to recover upon it Shotwell's Administratrix v. Struble. but in such case it was an advancement by the intestate, and must be brought into hotch-pot before distribution of the personal estate, and the consideration must be disclosed. The defendants moved for a dissolution of the injunction. heretofore granted in this case. The motion was founded upon the bill, and answer of the defendants. Mr. McCarter, in support of the motion. Mr. Kay and Mr. R. Hamilton, contra. THE CHANCELLOR. This suit is for discovery and injunction. The complainant is the widow and administratrix of James Shotwell, deceased. The defendant, Hannah Struble, is a daughter of James Shotwell. Shotwell had an attack of paralysis on the 24th of March, 1866, and another in July, 1867; from the last he never recovered, and shortly after died. On the 31st of March, 1866, he gave to Hannah Struble his note for $3000, payable, with interest, in five years, to her or bearer; and on the 28th of April, 1866, he gave to her a sealed bill for $3000, payable to her or bearer one day after date. This note and bill were after his death presented by Hannah to the complainant for payment, and on refusal, suits were brought upon both, at law. The complainant alleges that this note and this bill were procured by the defendant from the intestate when his intelleet was impaired by the paralysis, and he was not capable to transact any business; that they were procured by undue influence, and were without consideration. She prays that the proceedings at law may be enjoined. The bill prays a discovery of the manner in which this note and bill were procured from the testator, and of the consideration of each, and after stating a pretence that the note was given for the conveyance or release of certain property, it prays a discovery of what the consideration consisted, and its amount and value. Shotwell's Administratrix e. Struble. The defendants answer fully as to the time and manner of giving the note and bill, as to the capacity of the testator, the undue influence, and some other circumstances inquired into. As to the consideration of the note, the answer states that certain lands had descended to the defendant, Hannah, from her deceased mother, and that the intestate, being only tenant by the curtesy, had conveyed these in fee with full covenants of warranty; that the intestate proposed to her if she would release her estate to his grantee he would give her his note for $3000; thereupon the defendants released these lands as requested, and the intestate gave her this note. That the interest of the defendant, Hannah, in the lands which were released was not susceptible of valuation in money, except by estimation, and that the same was estimated at the time, for the purpose of affixing revenue stamps to the release, at $400. And the answer insists that the consideration of the note was not only the value, either real or estimated, of the interest of the said Hannah in the lands, but also the execution and delivery of the release. The answer discloses no further, the nature or value of the consideration. It refuses to disclose the consideration of the sealed bill, on the ground that being under seal it imports a consideration, and cannot be impeached either at law or in equity for want of a consideration, and therefore the defendants are not bound to disclose it. The defendants ask that the injunction should be dissolved on the ground that they have fully answered the equity of the bill. As to the note, the bill alleges that there was no consideration, and that there was a pretended consideration. of the conveyance or release of some lands, and expressly asks for a discovery of the consideration, and of the value of the consideration. The defendants answer that the consideration was the release of their interest in some lands, but decline to state the value of these lands, on the ground that the release of the lands, and not the value of the lands was the consideration. The ruling of the Supreme Court in the case of Beninger v. Corwin, 4 Zab. 257, is relied on to sup Shotwell's Administratrix v. Struble. In port this distinction. But the circumstances of that case are altogether different from the present; there the note was given on an exchange of horses, for the difference in the value agreed upon by the parties. The court, on the trial, had instructed the jury that if there was no difference in the value, the note was without consideration and void. reviewing the case, the Supreme Court held that in that case, like in case of a sale for a stipulated price where there was no fraud, the purchaser was bound to pay the price agreed upon, and not the value of the article purchased, and that a note given for such stipulated price could not be impeached for want of consideration. In this case, if the value of the land had been $3000, or if in a bargain for the release of the land, the intestate had agreed to give her $3000, as an estimate of its value or the value of the release to him, it might have been a valid consideration for a note for that amount. But an offer by a father to give his daughter a note for $3000, if she will release lands worth $400, cannot be taken as a bargain to give that amount for the lands, but the natural and legal construction of such offer is, that the note, beyond the value of the lands, is intended as a gift or advancement, and under the circumstances of this case as detailed in the answer, I can have no doubt that such was the intention of the father, and the understanding of the daughter. An offer to give a note for $3000, for the surrender of a bond or mortgage for $500, can only be construed as a gift or gratuity of $2500. And a release of lands worth $400, would make such note a gift, or without consideration as to $2600, on the same principle; and the complainant was entitled to a discovery of the value of the land. And even if this cause should be permitted to be tried at law, the injunction could not be dissolved until the defendants had fully answered as to the value, which surely can be done approximately, if not with precision. This is a material part of the discovery sought, and the injunction must be retained until it is made. Besides, according to the decision |