Volume 12 — New Jersey Equity Reports

<p>A mortgage given to secure future advances is valid in this state.</p> <p>Whether it will secure advances to the time only when the subsequent encumbrance was actually executed, or to the time of the actual notice of such future encumbrance, may be deemed not altogether a settled question.</p> <p>It is not necessary that such mortgage should show on its face that it was given as a security for future advances; though, as a matter of propriety and safety, this should be' done.</p> <p>Parol evidence is competent for the purpose of showing that the mortgage was intended to secure a debt different from that expressed in it.</p> <p>Neither does such mortgage contravene the registry laws of this state.</p> <p>The registry of a mortgage is not intended as notice of the amount due upon it.</p> <p>W. W. F., being indebted to his father, T. F., executed to him a mortgage. Some time after, he made a general assignment, under the act for the benefit of his creditors. The father presented his claim against the son to the assignees, stating therein, and in the affidavit annexed thereto, that part of it was secured by mortgage. Afterwards T. F. dying, his will contained this clause — •“ In order to place my children as nearly upon an equality as may be, I direct that all tlie debts with which my sons are respectively charged upon my legar shall be deducted from their respective shares of my estate, allowing to each of them a credit of twenty-five thousand dollars, being the sum I have advanced, or given, hereby to their sisters, excepting always my son W. W. F., against whom I desire my executors to prosecute no suit or claim for any debts he may owe me; but not to abandon the proceedings commenced against the estate assigned by him to Messrs. Bell and Markley for the beuefit of his creditors.”</p> <p>Held, that the above recited clause did not operate as an equitable release of the mortgage.</p> <p>Held further, that the testator, by proving his debt before the assignees in the manner specified, did not abandon his mortgage security.</p>

<p>Where the statement of facts in the bill are broad enough to give the complainant a right to relief, it matters not how narrow the prayer may be, if the bill contains a prayer for general relief.</p> <p>And although the complainant may claim a relief not at all warranted by the facts, or may be entitled to a relief upon very different principles of equity from what he supposed, such a misapprehension of his case cannot defeat his right to relief.</p> <p>Certain persons entered into an agreement with a view to form a company to carry on the business of quarrying at a quarry situate at Belleville,™ Essex county, iii this state. They then undertook to form themselves into a corporation under the general act of the legislature of the state of New York, passed 14th February, 1848, and complied with its forms.</p> <p>Held, that such company would not be recognised by the courts of this state as a legally constituted corporation.</p> <p>Held further, that such persons doing business in this state, under such assumed corporate capacity, will be treated as, and held to the responsibility of partners, both in courts of law and equity.</p> <p>In the distribution of partnership effects, the equities between the partners themselves will have priority over any claims of the private creditors of either of the partners.</p> <p>A partner who advances moneys to pay the debts of the firm has a lien upon the assets paramount to any lien which a creditor of one of the partners has upon such member’s interest.</p> <p>The complainant was the grantee of certain real estate in trust for the firm. The bill alleges that he had made advances of moneys to one of his copart, ners, who had pledged to complainant his right and interest in said real estate as security for said advances.</p> <p>Held, that as this bill put the right of recovery solely on the ground that the trust estate was pledged as security for the debt, the complainant could not claim a lien on the partnership assets superior to the claims of the separate creditors, by showing that the moneys advanced went into the partnership. The reply to such claim is, that there is no such equity stated in the bill.</p> <p>If one partner make advances for another partner, on account of his interest in the partnership, the individual partner is his debtor, and not the firm. As between himself and his debtor, he may have an equitable lien upon the latter’s interest in the firm to reimburse himself; but he can have no equity which will give priority over the other separate creditors of his debtor.</p> <p>Prima facie, the holder of a written agreement is entitled to the benefit of it, and if the attempt is made to destroy its validity by showing a non-delivery, the proof must not leave the matter in doubt.</p> <p>It has been frequently settled, that a separate creditor of one partner can attach that partner’s interest in any partnership property.</p> <p>The land held in trust Tor the firm Was sold under a mortgage, and the surplus money, before it was brought into court, was attached while in the hands of the sheriff by a separate creditor of one of the firm.</p> <p>Held, that the money was attachable under the above circumstances. “ This case is not within the principle of the decision in Shinn v. Zimmerman, 3 Zab. 150. The authorities in that case reviewed.</p>

<p>H. applied to W. for loan of $1000. W. told him, if he would meet him on a certain day, with a bond and mortgage made out to one 0., and would assign also to said O. a certain other bond and mortgage as collateral, he should have the money: they met, and W., telling H. that he had only $600, which he would pay him as soon as he could raise it, if he would deliver to him the bonds and mortgages; H. delivered the papers.</p> <p>Held, that thereby H. made W. his agent to deliver them to C., and to receive the money from him.</p>

<p>It is ne defence ío a foreclosure that the mortgage was given to secure the purchase money, and that the conveyance waff by deed containing covenants that the property was clear of encumbrances, and that the grantor’s wife had survived her husband, and claimed dower in the mortgaged premises.</p> <p>An outstanding title against the land purchased is no objection to a decree of foreclosure; it must appear that there has been an eviction, or a suit commenced on such title.</p>

<p>An accommodation endorser, after the note had been protested, conveyed his farm in trust for his wife. The conveyance was without valuable consideration.</p> <p>Held, that the conveyance was void as against complainant, the payee of the note.</p> <p>The defendant’s denial, in his answer, of any intent to defraud his creditor, can avail nothing in view of the circumstances under which the conveyance was made. If its effect is to deprive the creditor of the payment of his debt, it is void under the statute and by the common law, independently of the statute..</p> <p>After protest, the endorser was as much a debtor as the drawer of the note; and the principle is, that if the party is indebted at the time of the voluntary settlement, it is presumed to be fraudulent in respect to debts antecedently due; and no circumstance will permit those debts to be affected by the settlement, or repel the legal presumption of fraud.</p> <p>Where a man is endorser upon commercial paper, a voluntary conveyance is no better protection against such a debt, whether the paper is or is not due at the time of the conveyance, than against a debt contracted for the debt- or’s own benefit, and actually due and payable when the conveyance is made.</p> <p>Where a voluntary conveyance — a settlement upon a wife or child — is made in contemplation of future debts, it is not bona fide, and will be set aside as fraudulent against such creditors.</p> <p>The difference between existing and subsequent debts, in reference to voluntary conveyances, is this — as to the former, the fraud is an inference of law, but as to the latter, there must be fraud in fact.</p> <p>A judgment creditor has a right to have a fraudulent conveyance removed from the premises by a decree in equity before selling the same under his execution.</p>

<p>Marshalling of assets is a well established head of equity jurisprudence. The general principle is, that if one party has a lien on, or interest in two funds for a debt, and another party has a lien on, or interest in one only of the funds, for another debt, the latter has a right in equity to compel the former to resort to the other fund', In the first instance, for satisfaction, if that course is necessary for the satisfaction of the claims of both parties, whenever it will not trench upon the rights, or operate to the prejudice of the party entitled to the double fund.</p> <p>But this rule has its qualifications, and is never applied except where it can be done without injustice to the creditor or other party in interest having a title to the double fund, or where it is not injurious to a third person, over whom the party claiming the benefit of the principle has no superior equity. M. executed mortgage on two lots to the Trenton M. L. Association, assigning to them at the same time, as collateral security, five shares of stock. Afterwards M. gave complainant a mortgage on one of these lots, and after the execution of the latter mortgage, he assigned to T. and O. his interest in the five shares of stock.</p> <p>Held, that complainant was entitled to require the T. M. L. Association to sell first the lot which was. exclusively embraced in their mortgage.</p> <p>But that complainant had no equity to compel the appropriation of the stock to the payment of first mortgage.</p> <p>Thai while M. owned the stock, there was an equity, as between him and the complainant, that in enforcing the mortgage securities, the stock should be applied to the payment of the mortgage to which the debtor had pledged it, in such a manner as to relieve the complainant’s security, but that such latent equity did not follow it into the hands of a Iona fide purchaser without notice.</p>

<p>l?arol evidence is admissible to prove a new and distinct agreement, upon a new consideration, abrogating a prior written agreement.</p>

<p>Each of eight persone obtained a judgment against D. Upon the 15th February, 1856, the executions being returned unsatisfied, an order was made to compel D. to make discovery, by virtue of the act of March, 1850, entitled, “An act to prevent fraudulent trusts and assignments. On the 28th of June following, M. was appointed receiver, by one and the same order, in the eight different suits. In the order, it was adjudged that D., the judgment debtor, was possessed of a certain sum of money and a certain note. I). had been arrested and held to bail in these suits, and on the 18th February, three days after the order, he Was surrendered by his bail, and on the same day gave an insolvent’s bond; and on the 5th August following, being discharged as an insolvent, made an assignment to N., the complainant in this suit. The money and the note, adjudged by the order to be in the hands of D., were paid over by him to his assignee. M., the receiver, brought suit at law under the statute to recover of the assignee these moneys. The assignee files this bill, praying that he may deposit the money and note in this court, and that the receiver may be restrained from his suit at law.</p> <p>Held, that the only matter in controversy is a pure question of law, arising upon the construction of the statute.</p> <p>That there is no question of equity between the parties. If the order made by the court upon the return of the executions at law gives to the judgment creditor a lien upon the property against a subsequent bona fide purchaser, creditor, or alienee, either voluntary or involuntary, and the receiver has been duly appointed, then he is entitled to recover the property at law, and the determination of that suit settles all dispute to the property.</p> <p>The judgment at law will be a protection to the complainant, and there appearing no reason for changing the fornm of litigation, the bill must be dismissed.</p> <p>Although all the parties have submitted to the jurisdiction, as the case is not free from difficulty, the bill, under the circumstances of the case, will not be retained.</p> <p>Query, whether one single order, appointing a receiver under the act, can be made for eight suits brought by different parties ?</p>

<p>The New Jersey FranMinite Company executed a mortgage to the complainant on certain tracts of land, and by the mistake of the scrivener, certain ores, which by the agreement of the parties should have been excepted, were embraced therein. The company conveyed the mortgaged premises, including the ores, to A. G. and others in trust, as a mortgage security for certain coupon bonds, to be issued by the company. It did not appear that any bonds had been issued. The complainant filed bill of foreclosure, and the trustees, by answer and cross-bill, set up mistake, and claimed exemption of the ores. Held—</p> <p>First. That even if the mistake could be set up, a cross-bill was not necessary, but the defendants would be protected by a decree upon the original bill declaring that complainant was not entitled to have the ores sold.</p> <p>Second. That although the mortgagee obtained his lien on the ores by the mistake of the scrivener, there is no reason why he should be compelled to relinquish his security until his debt is paid.</p>

<p>Where land was conveyed in trust, with power to sell either at public or private sale whenever the trustee thought it advisable, and the proceeds of the property sold were not to be paid immediately to the beneficiary, but the trust was to continue, and the money derived from the sale was to be invested at the discretion of the trustee, held that a bona fide purchaser at the sale by the trustee was not bound to see to the application of the purchase money.</p> <p>But the purchase must be bona fide, or the purchaser is not entitled to protection.</p> <p>If the property is sold not for the purpose of executing the trust, but on any other purpose, and the purchaser knew it, he participates in the fraud, and is involved in its consequences; or if the sale is made under circumstances which would put a conscientious man on his guard, and the purchaser acts entirely regardless of such circumstances, he ought not to be permitted to derive any advantage from the purchase.</p> <p>The trust deed, being on record, was constructive notice to the purchaser; and where the purchaser’s deed, after describing the property, and designating therefrom whence the several shares were derived, stated that the share of O. O. (cestui que trust) was conveyed in trust for her use, held, that this was actual notice of the trust.</p> <p>Circumstances stated which make grantee of purchaser chargeable with knowledge of trust and its violation.</p>

<p>An injunction was obtained on tbe ground that a conveyance of certain lots bad been fraudulently obtained from the complainants by the defendants. The equity of the bill was denied in the answer, and this denial was partly sustained by the statements in the bill. It also appeared that complainants had been aware of the alleged found for a considerable time before they exhibited their bill.</p> <p>Held, that injunction must be dissolved.</p> <p>That this case was not an exception to the general rule, that an injunction will be dissolved where the equity of bill is answered.</p> <p>That if complainants supposed they had any equity, they should have filed their bill promptly.</p>

<p>A bill in equity is not the proper remedy to compel the payment by garnishee of the moneys attached.</p>

<p>The separate release of a feme covert will not extinguish her right of dower. The bill retained under the circumstances of this case, to permit the complainant to procure a formal release from husband and wife.</p>

<p>A., an executor, deposited in the hands of B. a sum of money to pay a legacy. B. accepted the trust; acknowledged himself the debtor to the amount received ; from time to time paid interest upon it; quieted anxiety by declaring that money was safe in his hands, and that when the legatee arrived at the age specified in the will she should have it.</p> <p>Held that B. was liable to pay to legatee the amount deposited.</p>

<p>The question, whether a mortgage of personal property, when the property is left in the possession of the mortgagor, is void under the statute of frauds, against creditors, or a bona fide purchaser without notice, has not received any such judicial construction as to make it res adjudícala in this state.</p> <p>Nothing further can be reached, by way of rule on this subject, than that possession in' the vendor is prima facie evidence of fraud, but may be explained; and that this is a mere rule of evidence calculated to shif|the onus probandi from the creditor to the vendee.</p> <p>The owner of a picture, then on exhibition in New York, executed in this state a mortgage of it, as a security for a loan. The domicil of both mortgago and mortgagee was in this state. Subsequently the mortgagor sold, in New York, the picture to a bona fide purchaser without notice. By the laws of New York, a mortgage of chattels Remaining in the possession of the mortgagor is void, as against subsequent purchasers in good faith, unless filed in the office of the register, &c. The vendee having brought the picture into this state, this bill was filed to foreclose the mortgage.</p> <p>Held, that the mortgage was valid, as against the subsequent purchaser without notice, as the possession of the mortgagor was consistent with the transaction, and explained to the satisfaction of the court.</p> <p>A transfer of personal property, which is good by the law of the owner’s domicil, is valid wherever the property may be situate.</p> <p>Where the laws of two states are brought into conflict, the rule is, that the laws prevailing where the relief is sought must have the preference.</p>

<p>M. entered into a contract with the complainants to construct a tunnel. In the progress of the work, M. had received largo sums in payment, and the complainants had retained in their hands, by virtue of a stipulation of the contract to that effect, the sum of about $42,000, being ten per cent, of the estimates, or supposed value of the work. M., in consideration of the payment of this percentage to him, executed a mortgage upon a large amount of property, consisting of buildings and machinery, tools, &c., with a condition that the contract should be fully performed on his part, or the $42,000, with interest, refunded. The two clauses in the contract, which particularly specified the purposes to which the percentage retained was' to be applied, were as follows: “If the party of the first part shall refuse or unreasonably neglect to remedy any imperfections which may be pointed out by the engineer, or in any manner violate the conditions of this contract, so that, in the judgment of the engineer, there shall be just grounds of apprehension that the work will not be completed in the manner and within the time herein specified, then it shall be the duty of the engineer to serve a written notice upon said party, setting forth the grounds of his apprehension, and specifying the manner, together with a reasonable time, in which said party may cause such grounds to be removed; and if, at the expiration of such time, said grounds of apprehension be not removed, then full power and authority are mutually vested in such engineer to declare their contract forfeited; and on such declaration being given in writing to the parties hereto this contract shall cease and determine immediately, and the said party of the second part may for ever retain the reserved percentage on account of the consideration for damages which they may have sustained by reason of the forfeiture of this contract, “or, as another alternative, the party of the second part, at their option, may allow the party of the first part an extension of time, in which case the party of the first part hereby agrees to forfeit to the party of the second part the sum of $2500 for each and every month the work shall be delayed beyond the time herein stipulated for the completion of the same, the amount to be deducted from the engineer’s estimates or from the reserved percentage.”</p> <p>Shortly after the execution of the mortgage, attachments were taken out against M., as an absent debtor, and levied on the mortgaged property, and judgment being entered, the auditors advertised it for sale.</p> <p>The complainants then filed their bill for a sale of the property to pay the mortgage money, and that they might have priority over attaching creditors, and that creditors might be enjoined from selling. On motion to dissolve injunction, held—</p> <p>First, that the percentage retained under the contract was not for the general indemnity of the complainants, but could only be resorted to for the purposes mentioned in the two clauses thereof above recited.</p> <p>Second, that as the bill, in connection with the affidavits, shows that the engineer had not declared the contract forfeited,' and that the complainants had not given the extension according to the terms of the contract, the bill could not be maintained, and the injunction must fall.</p> <p>A mortgage of personal property may be enforced, if the mortgagee has possession of the property, by a sale by him in market overt, or he may sell it under a decree, of this court. It is his right to forclose his mortgage; he is not bound, to incur the risk of selling the property without the sanction of a decree.</p> <p>The remedy at law, as between the mortgagee and attaching oreditor, would only settle the right of possession, and is therefore inadequate.</p> <p>The condition of a mortgage may not have been broken — the time may riot have arrived when the money is payable — and as between mortgagor and mortgagee, the latter may have no right to enforce his mortgage — and yet there may be circumstances, notwithstanding, which will entitle the mortgagor to his bill for the protection of the property, and will justify the court in converting the mortgage property into money for the better protection of the parties in interest.</p>

<p>It is not necessary that the defendant should be actually in the state when application is made for the writ of ne exeat.</p> <p>Nor is it necessary that he should be a resident of this state.</p> <p>In some cases where the court feels itself constrained to discharge the writ, it will direct the defendant to give security to abide the decree.</p>

<p>This court will, of its own motion in a proper case, refer a disputed question of iáct to the decision of a jury.</p> <p>After a verdict has been rendered, the question of a new trial rests entirely in discretion, so-much so that an appeal will not lie from a decision of the court on such motion.</p> <p>So an appeal will not lie from an order of the court directing or refusing an issue.</p> <p>The mode of trial before the jury and the effect to be given to the verdict are matters in the discretion of the Chancellor; he may give directions to the court to which the issue is sent for trial to disregard the strict rules of law ; and although competent testimony has been rejected, and illegal admitted, or the judge has misdirected the jury, he is not bound to grant a new trial.</p> <p>In this case the issue directed to be tried by the jury was this — “ whether the agreement bearing date the second day of February, 1835, set out in the complainants’ bill, was executed by the parties thereto as their act and deed unconditionally, or upon the understanding or agreement that the same should be executed by the remaining stockholders of the Delaware and Atlantic Railroad Company before the same should be delivered as an agreement binding upon the subscribers, and whether the same ever was, in point of fact, legally delivered by the parties thereto, or by their authority, to the said John Black, Joseph Smith, and Benjamin Jones, or either of them.”</p> <p>Held, that this was the proper issue in the case; that an issue of non est factum would have been too broad.</p> <p>And held further, that the objection to the issue was too late after trial.</p> <p>That parol evidence is admissible to show that, previous to the obligors signing the deed, there was an agreement between the parties to the instrument, that all the stockholders of the company should sign it, and that it was signed by them with the understanding or agreement that it should not be delivered until the signatures of all were procured.</p> <p>There is a manifest difference where the testimony is offered for the purpose of showing that the writing was not to be delivered until a condition precedent was performed, and that it was delivered with an agreement that the con. dition was to be performed. In the one case, the purpose of the evidence is to show that the instrument never was legally delivered, and therefore never had any binding effect — in the other, to contradict the instrument, which is absolute upon its face, by showing, contrary to the instrument, that it was not absolute, but conditional.</p> <p>The book of minutes of the railroad company was admitted in evidence, to go to the jury for the purpose of proving what took place at several meetings of stockholders, called for the purpose of procuring the loan for the company with which the indemnity bond in question was immediately connected. In it were recorded the meetings of the parties to the bond, and what took place between them in relation thereto, and it was kept by their secretary.</p> <p>Held, that the book was admissible, as containing the agreement of the parties, reduced to writing by a person mutually chosen for the purpose.</p> <p>When, by the order of this court, certain depositions are authorized to be read on the trial of an issue before a jury, the judge conducting that trial has nothing to do with the admissibility of the whole or any part of the evidence. This court is responsible for the legality of the evidence.</p> <p>Objections to testimony taken before the master are to be settled by this court, and if they are not renewed at the hearing, or when the depositions are acted upon by the court, they are waived.</p> <p>The general rule admitting in evidence the declarations of a party to the record applies to all cases where the party has any interest in the suit, whether others are joint parties on the same side with him or not, and howsoever the interest may appear, and whatever may be its relative amount. And in the absence of fraud, if the parties have a joint interest in the matter in suit, whether as plaintiffs or defendants, an admission made by one is, in general, evidence against all.</p> <p>On the trial of an issue before a jury, directed by this court, a complainant is not a competent witness, by virtue of the act of 1855, to disprove so much of the defendant's answer as may be responsive to the bill of complaint.</p> <p>The trial in the court of law directed by this court is not a proceeding of an equitable nature, but is to be regulated by practice of the court in which it is held, subject, however, to the control of this court over the parties, as to the mode and terms of trying such issue.</p> <p>Whether the jury should be permitted to take out with them the answers and depositions which were ordered to be read, was a matter in the discretion of the judge trying the case.</p> <p>The bill stated the proceeding of the directors and stockholders of the company in reference to the loan, to secure which the bond of indemnity in dispute was given; the financial situation of the company; the inducement to make the loan; the borrowing of the money; and then, as consequent upon these proceedings of the directors and stockholders, the execution and delivery of the covenant of indemnity.</p> <p>Held,, that the statement in the answer constituting the point of defence, that the bond was not signed by all the stockholders, was responsive to the bill, inasmuch as the defendants could not fully and truly answer the bill without stating this fact.</p>

<p>Allegations of fraud in procuring probate of will, and of existence of another will, must be clearly established by the proofs.</p>

<p>It would require a very strong case of fraud, mistake, surprise, or accident, to induce a court of equity to interfere with the completion of a sale upon an execution at law.</p> <p>A purchaser at a sheriff’s sale is not to lose his bid on account of a misunderstanding, in reference to a matter of law, on the part of the bystanders.</p>

<p>By tlie charter of an insurance company, all persons insured became members of the company, and all claims and losses sustained, to a greater amount than the company had funds on hand to discharge, were to be raised by assessments, to be made ratably on the members, according to the amount of each member’s insurance, provided that such assessment should not exceed tlio amount of tlie note or obligation given by each member, and one per cent, on the principal sura mentioned in each policy. After the business had been carried on for some time, the directors resolved that the company should raise a guaranty capital of $150,000, which should be put up in money bonds payable on demand, and secured by a mortgage or stocks, as collateral security, which should be liable to assessment pro rata, to make good any losses which the company might sustain after all other available means had been exhausted. The contributor to such capital was to receive six per cent, per annum on the amount of his bond out of the earnings of the company. The corporation having become insolvent, an assessment was made, by the order of this court, on the guaranty capital, and a bill filed to recover on the defendant’s mortgage the amount assessed against him.</p> <p>Held, that the corporation had no power to enter into the contract with tho contributors to the guaranty fund, and that such contract was illegal and void, and could not be enforced either in a court of law or equity.</p> <p>Where the charter of an insurance company makes its members mutual insurers, and constitutes a fund to meet losses made up from premiums to bo contributed by the members, and one per centum on the amount for which each is insured, no other fund can be created for that purpose.</p> <p>And although such company may, under proper circumstances, borrow money, it cannot, under pretence of borrowing money, provide a fund for the purpose of giving credit to the company.</p> <p>The creditors of such corporation have no right to look to any other fund than that which the charter provides, and they cannot ask the court to enforce an illegal contract for their benefit.</p> <p>It would seem that the mortgage may be held as security for the interest paid by the company upon it, and the bill was dismissed without prejudice to this question.</p>

<p>Who are necessary parties to a bill.</p>

<p>Where a deed of conveyance contains full covenants as to title and against encumbrances, and a mortgage on the premises exists at the time, under which a foreclosure and sale takes place, and the grantor becomes the purchaser, the title thus acquired will enure to the benefit of the grantee.</p> <p>If the owner of the premises is not a party to the proceedings of foreclosure the equity of redemption is not affected by the decree.</p> <p>Where a grantor covenants against encumbrances, and subsequently pays off a mortgage existing at the time of conveyance, equity will hold that the payment was for the benefit of the grantee.</p>

<p>An uncle made an agreement with the father of an infant nephew, that he would take the infant, and would adopt him as liis son, and that all his property should belong to the infant at the time of the decease of himself and wife. The child lived with the uncle under this arrangement over twenty-five years.</p> <p>Held, that although the agreement was by parol, and was entered into more than thirty years ago, the rules of the court would not be relaxed, but strict proof of the agreement would be required.</p> <p>That the uncle was not restrained, by the above agreement, from the use and disposal of his property during his lifetime, and that it was only upon the death of the uncle and his wife that the nephew could claim the property; but that the uncle could not make a disposition of the property inconsistent with the agreement.</p> <p>If a defendant, in his answer, admits the parol agreement which is within the statute of frauds, but insists on the benefit of the statute, he is entitled to it notwithstanding such admission. But if he admits the agreement, without insisting on the statute, the court will decree a specific performance, on the ground that he has renounced the protection of the statute. Where the answer denies the parol agreement, the statute need not be set up as a bar.</p> <p>In this case the uncle, when about sixty-five years old, having conveyed his farm, worth about $6000, to his wife’s sister and her husband, who executed, as a consideration, a bond in the penalty of $6000, with condition to support and maintain obligee and his wife during their lives, &e., and it appearing that such grantee knew of the equities of the nephew — held, that such grantee would not be regarded as a bona fide purchaser, and that the conveyance being intended to defeat the agreement in favor of the nephew, the latter was entitled to relief.</p> <p>The principles of equity will be applied to new cases as they are presented, and relief will not be withheld merely on the ground that no precedent can be found.</p> <p>See, for this case on demurrer, 3 Stockton 370.</p>

<p>In a foreclosure suit, in which a judgment creditor in attachment claims the surplus money, it is not competent to show that such creditor had no such demand against the defendant in attachment as would sustain an attachment. Such judgment cannot be drawn in question collaterally.</p> <p>But the surplus money in such case cannot properly be paid to the plaintiff in attachment — .the auditors are the persons entitled to receive it.</p> <p>In a court of equity, the parties are confined to the issues made by their pleadings, as well as in a court of law.</p> <p>A mortgagor who answered a foreclosure bill, did not dispute the claim of a . judgment creditor in attachment who had answered, setting up his judgment, will not be permitted to call such judgment in question on a petition by such creditor for the surplus money.</p>

<p>The complainant was the owner of a farm through which the defendants, the Morris and Essex Railroad Company, in the construction of their work, made an excavation. Commissioners were called, under the company’s charter, to assess the damages, from whose award the complainant appealed. Before the hearing of the appeal, H. and W., the lawyer and agent of the defendants, proposed to submit the matter in difference to arbitration, which was done. By the charter of the company, they were obliged to construct and keep in repair suitable wagon ways over or under their road where the railroad intersected any farm. During the deliberations of the arbitrators, the complainant stated that he should require a suitable wagon way over the railroad where it crossed his farm, but H. and W. replied that this was a matter with which the arbitrators had nothing to do, and was no part of the submission. This view was assented to by the arbitrators and both parties. The arbitrators made their award, and H. and W. waited on complainant with the money awarded and the draft of a deed. The complainant objected to signing this deed, on the ground that it did not in express terms reserve all his rights to a crossing, but finally executed it, on being assured, by the lawyer of the company, that such rights would'not be affected by the instrument. The company having failed to put up a crossing after being legally notified, the complainant made it at his own expense, and, by virtue of an authority contained in their charter, sued them at law for the money expended. The company set up the deed as a bar to the recovery. This bill was filed to reform the deed and enjoin the defendants from interposing it as a defence at law. The company filed a demurrer to the bill.</p> <p>Held, that though the general rule is — ignorantia legis neminem excused — yet it has its admitted exceptions.</p> <p>That this case forms an exception to the general rule for several reasons, among which are the following, viz.</p> <p>First. Because-the sole purpose of the deed was to effectuate the award of the arbitrators — which purpose it did not accomplish; and because the court can reform the deed by having the award before it, without resorting to parol evidence.</p> <p>Second. Because the mistake of the law was the mutual mistake of both parties to the contract, and was to be attributed to the agent of the party now endeavoring to take advantage of it.</p> <p>Held further, that although, in the view of this court, the right of the complainant to require the company to make the crossing in question was not released by giving of the deed, yet as the company had, by their plea at law, set up a different construction, the complainant was entitled to be protected in this court against the hazard of a decision at law sustaining such plea.</p>

<p>A person who has gone into possession of real estate, under a parol agreement to purchase, has such an interest in the property as is capable’ of being mort» gaged.</p> <p>The equity of such mortgagee is, that he has the right, if the vendee refuse to fulfil the agreement to purchase, himself to assume his position and redeem the property,</p> <p>Such mortgage will prevail against a subsequent purchaser with notice.</p>

<p>It would be contrary to the practice of this court to dissolve an injunction in a case in which, while the answer of the defendant, who has been restrained, denies the equity of the bill, the answers of other defendants, who are the parties most interested in the subject matter of suit, admit every material allegation on which relief is claimed.</p>

<p>A specific performance of an agreement in writing will not be decreed where it has not been executed by all the parties.</p> <p>And where some of the parties to an agreement were prevented from signing it by the fraudulent conduct of one of the parties in interest, a court of equity would not feel itself justified, upon such considerations, in decreeing the specific performance of an agreement which had never been executed.</p> <p>In a case in which promissory notes were given in payment of the balance of the consideration money on a parol contract for the purchase of lands, and an injunction was obtained by the party giving such notes, restraining the party receiving them from negotiating them, or enforcing their payment held, that this was not such part performance of the agreement as would take the case out of the operation of the statute of frauds.</p> <p>The governing rule on this subject is, that the court will not consider anything such part performance as will take the case out of the statute which does not put a party into a situation which is a fraud upon him, unless the agreement is fully performed.</p> <p>An agreement for the sale of lands stipulated that the vendees Were to pay $127,000 as the consideration money, within five years from the date of agreement, with a provision for payment of interest. The vendees had the right to commence selling off lots immediately, provided they paid to the vendors $100 per lot, and for such lots the vendors, on the receipt of the money, were obliged to give a deed. The vendees agreed to drain the premises, to dig down the high land, and to fill in the low, and to make other improvements of a like character. The consideration money was paid, partly in money, partly in bonds secured by mortgages on the premises, and partly in promissory notes.</p> <p>Held, that upon the payment of the purchase money, the vendees were entitled to a conveyance of the land, even upon the assumption that they had not made the improvements according to their agreement; that upon the face of the agreement, the object of the covenants for improvements was for no other purpose than to secure the payment of the purchase money.</p> <p>Held further, that the covenants for improvements were personal covenants, and that there was nothing pledged for their fulfilment but the personal responsibility of the parties.</p> <p>Held further, that the vendors could not withold a conveyance on the ground that the value of the mortgages taken by them depended on the faithful performance of the covenants to improve the property; that the vendees, having thus far performed their contract, and paid the consideration money, the vendors have no right to hold the land as a security for any future default.</p>

<p>If a deed is executed on the part of a debtor with an intent to delay his creditors, that intention will make the deed fraudulent in fact against his creditors.</p> <p>The bill alleged that the debtor had assigned his property with the purpose of delaying and defrauding his creditors: the answer denied that there was any fraud in fact, admitted the assignment, and averred that if the property could be sold at a fair price, it would be sufficient to meet the demands of the creditors. This answer was held to be an acknowledgment that the deed was executed to prevent the property being sacrificed, and to place it beyond the reach of the ordinary process of law, and was therefore void as against creditors.</p> <p>It is no justification of such a disposition of property that it will sell to better advantage than it would if sold by the sheriff under execution.</p> <p>A debtor who, believing himself solvent, places his property beyond the reach of the process of the law, whatever may be the pretence under which he cloaks the act, “hinders,” “delays,” and “ defrauds” his creditors.</p> <p>A debtor, with full knowledge that he is solvent, may, on the eve of a judgment against him, make a general assignment of his property for the benefit of his creditors, but he must do so in conformity with the statute.</p> <p>Where an assignment made by a debtor iu favor of creditors dictates terms to them at variance with the protection afforded to them by the statute, it is fraudulent in law.</p>

<p>An injunction will not be retained which rests on an agreement, alleged to have been lost, where the bill does not state that any application for such agreement has been made to the person with whom it stated it was deposited, and contains no averment that the contents of the lost instrument can be proved, and where the other party to such agreement is deceased.</p>

The bill in this ease charges that Ann Phillips, who is the wife of Robert W. Phillips, owns real estate in the city of Hoboken, and that she is possessed, also, of considerable personal property, which real and personal estate she holds in her own name, under the act of the legislature entitled, “ An act for the better securing the property of married women,” approved March 25th, 1852; that she has been living separate and apart from her husband for a number of years,…

<p>This court will not retain an injunction restraining proceedings under an attachment by virtue of the act of 1855, when it is admitted that the debts on which the writ was issued are justly due, on the ground that said act is unconstitutional, or that it was repealed without any saving clause; or that the attachment was not properly executed by the sheriff; or that the capital stock of the corporation is not the subject of attachment.</p> <p>As the money secured by the attachment is admitted to be due, and as the complainants should pay wliat they justly owe, this is a plain case for the application of the maxim — a party asking equity must do equity.</p> <p>Neither is it the province of this court to correct alleged errors in the judgment rendered by virtue of the proceedings in attachment.</p> <p>A court of equity will sometimes interfere and grant relief against a judgment obtained by fraud or imposition, and also a judgment obtained under circumstances of extraordinary hardship.</p> <p>But it has no authority to correct alleged errors of a court of law or to aid a party who, through his own negligence, has involved himself in diffi - culty.</p> <p>As ali the questions in this case are eminently proper fora court of law to deal with, a party will not be permitted to move the proceedings from that tribunal into this court for the purpose of settling here questions of pure law.</p>

<p>New matter set up in the answer will not aid a defendant on a motion to dissolve an injunction.</p> <p>After a decision of the Supreme Court, that certain property of the Morris Canal and Banking Company was. by their charter, exempt from taxation, this court will restrain the authorities of Jersey City from assessing said property for taxation on the ground of the prevention of a multiplicity of suits.</p> <p>Jurisdiction in such case also exists for the purpose of preventing the delivery of deeds under tax sales which would be clouds on the complainants’ title.</p>

Isaac S. Williams and others, attachment creditors of John G. Michenor, exhibited their hill in this court against said Michenor and one Charles Harlan, setting forth that the former, when insolvent, had fraudulently conveyed valuable real estate to the latter to defraud creditors.

<p>The general rule of law in reference to. the appropriation of payments is, that a debtor owing several debts to the same'ci editor has a right to apply his payment, at the time of making it, to. which debt he pleases. If he makes a general payment without appropriating it, the creditor may apply it as he pleases. And where neither party appropriates it, the law will apply it according to its own view of the intrinsic justice and equity of the case.</p> <p>The appropriation by the debtor may be shown not only by his express declaration, but by any circumstances from which his intention can be inferred; but such intention must be signified to the creditor in some way. A private entry, made by the debtor in his own books of account, is insufficient to determine the application of the payment.</p> <p>If neither party makes an appropriation of the payments, and equities attach in favor of a third party, it is not in the power of either debtor or creditor, at a subsequent period, to make an appropriation affecting the equities of such third party.</p> <p>Where a general payment is made without application by either party, and there are divers claims, some of which are but imperfectly secured, the court will apply it to those debts for which the security is most precarious.</p>

<p>Brown and Demarest made a general assignment for the benefit of their creditors. Three of the complainants obtained a judgment against B. and D., and indemnifying the sheriff, sold by execution the property which had passed under the assignment. The assignee recovered judgment against the shei’iff for a large amount. Only one creditor applied to the assignee within the three months limited by the statute, and that creditor was paid in full. There was a large balance in the hands of the assignee, and of this B. and D. made another assignment. Creditors, after that, made application under the first assignment, and the assignee, in his answer in this suit, admitted that it was an unsettled question whether the creditors so applying were entitled to be paid out of the fund in his hands, or whether such fund passed under second assignment, and that it had been his intention, after he should have collected the money due on the judgment against the sheriff, to apply to this court for directions. The complainants, as creditors, ask in this suit • the assistance of this court in the fulfilment of the trust, and having paid the money due on the judgment against the sheriff into this court, obtained an injunction restraining proceedings against that officer.</p> <p>Held, that under the circumstances, the injunction should be retained, and that the complainants, as creditors, had a right to invoke the aid of this court in view of the embarrassments which surrounded the assignee.</p>

<p>This court will not retain an injunction restraining the prosecution of an action of ejectment when it clearly appears that the complainants have a defence to such action in the court of law.</p>

<p>As a general rule, a mortgagee is entitled to his costs.</p> <p>A mortgagee, being a defendant, in his answer set up his mortgage and an interest in the premises under a tax lien, which latter claim was decided against him. As it did not appear that the claim was in bad faith, it was held he was entitled to his costs.</p> <p>That a mortgagee has extended his claim beyond what the court finally decide he is entitled to, is no ground for refusing him his costs.</p>

<p>It is the general principle, that the Court of Chancery is not the proper tribunal to correct the irregularities or errors of inferior tribunals, and that in ordinary cases this court should not interfere with the ordinances of a municipal corporation. But the authorities all admit that there are exceptions to this rule.</p> <p>The act of 1804, incorporating the Associates of the Jersey Company, after reciting, in the preamble, that the associates had become the proprietors, by purchase from Cornelius Van Vorst, of Powles.hook, bounded, &c., and the right and title of said Van Vorst under the water of the Hudson river, opposite the said land, as far as the right of said Van Vorst extended, conferred upon the associates the power to hold the said land, With the privileges and appurtenances, and to make streets, and to order and regulate the building of docks, piers, and wharves, &c., the associates had a map made of Powleshook, which is well known as Mangin’s map; and on this, the most easterly of the streets, is Hudson street, which is delineated as seventy feet, and ail of it is under the water of the Hudson, and except about a twentieth part of it, the whole street is designated as below low water mark. Outside of this street, into Hudson river, are delineated wharves, piers, and bulkheads. In 1820, the legislature incorporated Jersey City. Its territorial boundaries coincides with those of the associates. By subsequent legislation, the powers to make and regulate streets, wharves, &c., were taken from the associates, and conferred upon the city authorities. In 1828, the Morris Canal and Banking Company were authorized to continue their canal to the waters of the Hudson, at or near Jersey City. Where the canal connects with the Hudson, it is located within the boundaries of Mangin’s map, but entirely be. low tide water, and except a small portion of it below the low water line. The company purchased all the right of the associates to the land under water where the canal was located. They constructed their canal by making a large basin opening into the canal, which is connected by two piers, which are used for purposes connected with the navigation of the canal. The basin occupies the south terminus of Hudson street, as represented on the map. Within the last three or four years the company have extended their northerly pier further into the Hudson, and in doing so have crossed the line which is represented on said map as below low water mark; and at the end of this pier, and in the Hudson river, the company have built an extensive coal wharf for the business of their canal. The common council of Jersey City have passed an ordinance to extend Hudson street over the company’s pier to their basin, and they admit that it is their intention to remove the company’s building, and to convert a portion of the pier, 200 feet long, and seventy wide, into a public street.</p> <p>Held, that this court has jurisdiction to restrain the proceedings under the ordinance, on the grounds—</p> <p>First. Because this case presents questions entirely distinct from the regularity of the proceedings or want of jurisdiction of the municipal authorities, such as the existence of a public street over the pier, as to the effect of a dedication to a public purpose of lands under water, and the fact of the land lying unreclaimed by the public for more than fifty years, &c.</p> <p>Second, Because it comes within the well recognised exception of irreparable damage.</p> <p>Third. Because the defendants have waived tlieir right to except to the jurisdiction of the court by answering the bill without interposing such objection.</p> <p>Held, that under the circumstances of this case, the proceedings of the city authorities should be perpetually enjoined.</p> <p>The mere fact of the proprietors of the upland mapping it off on paper into blocks and streets, and extending those streets into tide water, and designating them by name, does not amount to a dedication, as far as the streets under water were concerned.</p>

<p>The complainants, who were the lessees of certain water rights, had entered into an agreement with the defendants, who were their lessors, regulating the mode in which the water should be drawn olf from the canal. The agreement having been carried into execution by the erection of the proper works, the defendants afterwards commenced an alteration of the works, so as to draw off the water in a mode which was not in strict conformity to the agreement. A bill being filed, and an injunction obtained, the defendants answered, insisting that the alteration would not injure the complainants, and was not inconsistent with their rights under the agreement — held, that this court ought to keep the parties in statu quo until the merits of the controversy should be heard, and until it should be decided whether, for the reasons assigned in the answer, the defendants were entitled to have the water discharged in any other manner than in that specified in the agreement.</p>

<p>Where the answer admits all the facts in which the equity of the bill rests, but sets up new matter in avoidance, the injunction will not be dissolved.</p> <p>A feme covert, who has been permitted by her husband to purchase goods, and give her note for them, and to use them as her separate property, has the right to transfer them, as her separate property, in payment of her notes</p>

<p>A creditor having a lien on two funds, one only of which is common to other creditors, will not, at the instance of a creditor, be compelled to resort, in the first place, to the individual fund, if by so doing he will be prejudiced.</p> <p>There were seven judgments against J. and H. Van M., tide fourth and sixth of which were held by Daniel Holmes, and the fifth by Daniel Van Mater. Holmes then obtained an assignment of the first and seventh judgments, taking, as collateral security, a draft, and agreeing to apply the proceeds to the assigned judgments, and to acoount with J. and H. Van M. for the surplus.</p> <p>Held, that this contract, being exclusively between Daniel Holmes and J. and H. Van M., even if violated, Daniel Van Mater, who was a stranger to it, could not complain of its broach.</p> <p>Held further, that as Daniel Holmes could not, without prejudice to his inter, ests, look to the collateral security in exoneration of the property levied on under the judgments, a court of equity will not compel him so to do.</p>

<p>If the surface of the ground is such as to collect water at different seasons of the year, to an extent which requires an outlet to some common reservoir, and if such is always the ease in times of heavy rain and melting of snow, and if, as far as the memory of man runs, that flow of water produced a natural channel through the lands of different persons, where such accumulated surplus water has always been accustomed to run, a court of equity will protect such channel from obstruction to the injury of any one through whose lands it runs.</p> <p>The question, whether an outlet for water is an ancient watercourse, does not depend upon the quantity of water it discharges. If the face of the couutry is such as necessarily collects in one body so large a quautity of water, after heavy rains or melting of snows, as to require an outlet to some comino» reservoir, and if such water is regularly discharged through a well defined channel, which the force of the water has made for itself and which is the accustomed channel through which it flows, and has flowed from time immemorial, such channel is a natural watercourse.</p> <p>Where A. has drained his land by a ditch through the land of B., using it as an adverse right for more than twenty years, he acquires an easement in the land of B. which is entitled to protection.</p>

<p>Where a motion is made, founded on prior proceedings on the cause, to require trustees, who are defendants, to give security, or to discharge them, and appoint a receiver, the proper procedure is by petition.</p> <p>Security will be required of trustees, to whom no moral turpitude is imputable, if they have made a palpable mistake as to their obligations and duties, and have displayed ignorance and negligence in the management of the trust fund, and have defended the suit in disregard of tho rights of an infant complainant.</p> <p>Security required of a trustee, who, having neglected to account in the proper court, as required by the statute, when called upon to account, refused and evaded doing so, and who, when compelled to account, was found to be the principal debtor of the estate. — -By the Chancellor.</p> <p>A testator has a right to impose confidence in whom he pleases, and if he se. lects as his representative an irresponsible or insolvent person, in the absence of fraud or misconduct, or breach of trust, security cannot be required of such executor.</p> <p>But it is a well settled rule in equity that, if the acts or omissions of the trustee be such as to endanger the trust property, or to show a want of honesty or a want of proper capacity to execute the duties, or a want of reasonable fidelity, equity will remove such trustee.</p>

<p>This was an appeal from an order of the Chancellor dissolving an injunction. The ease appears in the opinion delivered.</p>

TMs cause was first argued before tbe Chancellor upon the pleadings and proofs. The opinion of the Chancellor upon the merits of the case will be found reported in 2 Stockton’s Ch. Rep. 21. Upon the coming in of the master’s report, Terhune, who was the complainant below, filed exceptions to the master’s report, which were overruled by the Chancellor, and a final decree rendered, from which the complainant appealed.

A decree was made in favor of the complainants, from which the defendants appealed. The state of the case and the questions involved sufficiently appear in the opinion of the Chancellor, which he furnished the court, as containing the reasons for his decree.

The case sufficiently appears in the opinions to make intelligible the principles decided. The cause was argued before the Chancellor, by Jacob Weart and Asa Whitehead, for the respondent, who was the complainant in the suit, and by Edgar B. Wakeman and W. Pennington, for the appellants, the defendants below. A decree was made in favor of the complainant. The Chancellor furnished to the court the following opinion, as containing his reasons for the decree.

This was an appeal, taken from a decree of the Chancellor, made -in favor of the complainant. The bill was brought on a mortgage which had been deposited with the complainant, as- treasurer of the state of New Jersey, as security under the general banking law. The cause was brought to a hearing on the pleadings and proofs of the cause, and was argued by the attorney general, Dayton, on behalf of the complainant.

<p>If a receipt bo altered by the party holding it, or by the procurement of such party, such alteration vitiates the receipt as an instrument of evidence. But if the mutilation of the instrument be made by a stranger, without the cooperation of the party, its legal operation is not changed so long as it remains legible.</p> <p>The alteration not being in the handwriting of the party holding the receipt, and in the absence of all direct or circumstantial evidence except what arose from the fact that the receipt was written in the receipt book of the party, which was in her possession, it was held that the receipt was not vitiated, but should be received in evidence of payment.</p> <p>The mere cutting of the margin of the paper upon which a bond is printed or written is not a mutilation of the instrument itself.</p>

The facts of the case sufficiently appear in the opinions delivered. The cause was argued in the Court of Chancery by J. J. Scofield, and V. Dalrimple for the complainant below, who is the appellant in this court, and by Jacob Vanatta and J. W. Miller for defendants. Prom the decree made in the Court of Chancery the complainant appealed. The following opinion was furnished by the Chancellor, as containing his reasons for the decree.

An order was made in this cause in the Court of Chancery referring certain matters to a master, who having reported, exceptions were filed by the complainants. The Chancellor, acting on the advisory opinion of Hon. Joseph E. Eandolph, sitting as master, overruled these exceptions. Erom this interlocutory decree the complainants appealed. The facts of the case are fully stated in the report of the master and the following opinion.

This cause was argued before the Chancellor, at May-term, 1857, on the bill, answer, and proofs; and at the succeeding October term, the following opinion was read, and which was furnished to this court as containing the reasons of the decree in the court below.

<p>On a bill for partition, an administrator’s deed, made to a third party for the benefit of the administrator, will be set aside, at the instance of the complainant, on equitable terms.</p> <p>A single recovery in ejectment, if the right be not further controverted at law, will be regarded in equity as decisive of the legal title.</p> <p>Against a deed made by an administrator for his own benefit, relief may be bad (according to the practice in this state) as well at law as in equity.</p> <p>Where a complainant in a bill for partition has established his title by judgment at law to a part of his undivided share, and as to the residue asks the court of equity, in aid of his title, to set aside a deed made by the defendant, as administrator, for his own benefit, the deed will be set aside, as to such residue, only upon equitablo terms, although by the judgment at law it was declared only as against the complainant.</p> <p>Within what time a claim for relief in equity against a constructive fraud will be barred, depends upon the peculiar circumstances of the case — and these are always examinable.</p> <p>Claim for relief in equity may be denied on the ground of lapse of time within the period fixed by the statute of limitations.</p>

The complainants made the following case by their bill. That on or about the 28th May, 1856, they were seized in fee simple of certain lands and real estate in the city of Hudson, in the county of Hudson, and state of New Jersey, over and across which the New York and Erie Railroad Company had located and laid out the route of the railroad, to be built and constructed by them, to continue and extend the railroad of the Paterson and Hudson River Railroad Company to the Hudson…

This case was argued before the Chancellor, on the bill, answer, and proofs, and the appeal was taken from a final decree. The facts upon which the case turned are stated in the opinions delivered. The Chancellor furnished to this court the following opinion.

•• This case was decided by the Chancellor, in May term, 1858, and his opinion will be found in this volume, ante, page 1.

This was an appeal from the decree of the Court of Chancery continuing an injunction. The opinion of the Chancellor is reported ante, page 264.

This cause coming on to he hoard, a motion was made to join, as defendants to the suit, certain new parties. The grounds of the application appear in the opinion be-low.

<p>The opinion of the Chancellor in this case will he found ante, 66.</p>

This cause was heard in the Court of Chancery, in February term, 1858, on the pleadings and proofs. By the decree the hill was dismissed, but the taxed costs were ordered to be paid out of tbe fund in court. Both parties appealed from this decree. The testimony was very voluminous, but the material facts are stated in the opinions delivered. The Chancellor furnished 'the following opinion, as containing the reasons of his decree.

<p>A bond and mortgage sold by the assignee of a bankrupt mortgagee, and afterwards sold and transferred by the purchaser at such sale to a third person, in trust for the mortgagor, cannot be enforced against a prior grantee of the mortgagor holding under a deed with covenants of general warranty and against encumbrances.</p> <p>In such case the proof of the trust must be satisfactory.</p>

This was an appeal from an order of the Chancellor continuing an injunction till final hearing. The opinion of the Chancellor will be found in this volume, ante 227.

An injunction having been granted, by the court below, this appeal was taken. The facts are fully stated in the opinions delivered. The opinion of the Chancellor will be found, ante 252.