Herman Le Roy, William Bayard, and Gerritt Boon, Appellants, Against Peter Servis, Peter Little, Samuel Runyions, James Warren, and others, Respondents, 1 Cai. Cas. iii

The Chancellor having allowed all the demurrers respectively, and ordered the complainants’ bill to be dismissed with costs, as to the demurrants, the cause now came before the court, on an appeal from that decision.

After hearing argument, the court resolved, 1st, As to the first point, that the authority of precedent was wanting to give it sanction, no sufficient reasons having been assigned, to induce the court to sustain it; that on the contrary, considerations, resulting from inconvenience in all, and utter impossibility in many cases, afforded just grounds for repelling the exception. 2d, That it is considered, no decree on the merits of the complainants’ case is ever made on the evidence contained in the affidavit annexed to the bill; but that as such affidavit is merely to present probable or colourable grounds, for chancery interference and examination, there could be no hesitation in saying-, that •the affidavit of Gerritt Boon was sufficient in terms for that purpose ; and that the exception taken to it must be disallowed. 3d, On the second cause of demurrer, objecting illegality to the alleged agreement between Sir William Johnson and the original patentees, in contravening the salutary principles upon which the instructions of the royal government, regulating colonial grants, were grounded, it is sufficient to say, it has been justly admitted, that this is highly delicate ground ; and that the principles of this objection, if allowed, must attach to it very controling consequences, upon questions of real property in the state: but, on consideration, this does not appear to be included in that class of cases, which have been affected by the principle resorted to, the general consequences of which, in its operation, if sanctioned by this cause, to the prejudice of bona fide purchasers, probably without notice, is an argument why it ought not to be extended. 4th, The third cause of demurrer urges, that the discovery prayed, would endanger the defendants in law, and subject them to a penalty.

On this point, as a scienter,■ or knowledge of the seller’s being out of possession, and a subsisting adverse possession, at the time of the sale, are necessary to constitute an offence against the statute alluded to, the answer to this part of the bill, disclosing the fact prayed, might be so drawn, as not to contain any admission which would endanger the defendant in law. 5th, The remaining objection is, that the complainants blended in their bill relief with a prayer for discovery, when, from aught appearing in the case, a court of law, upon the discovery being obtained, is competent to afford adequate ’redress.

As the Chancellor’s retaining jurisdiction on the point of relief in this cause, would involve a consideration of the trial by jury, the question presents an aspect peculiarly important. On this point, though there may be sufficient grounds disclosed to change the jurisdiction, yet, as the complainants were properly before the court upon the point of discovery, the defendants were bound to answer this part of the bill; and the demurrer, therefore, to the whole, was not well taken, and ought to have been over-ruled. The cases on this question are contradictory.

The law is not bound down by a series of uniform decisions, in a manner not to be shaken, and so as to preclude the consideration of the reason of the rule. Upon this last ground, the reason of the rule, it will be seen, that a decision in conformity to the above opinion, will, at the same time that it discountenances the doctrine of turning round the suitor upon nice and critical exceptions, operate no prejudice to the defendants upon the merits of the question; because a judgment, over-ruling a demurrer in chancery, is, in its effects, in nature of a respondeas ouster in a court of law.

The opinion of the court, therefore, is, that the causes assigned do not sustain the decree in this cause, and judgment of reversal must be entered.