Volume 13 — New Jersey Equity Reports

<p>In proceedings for partition, whore after a sale of the premises the widow who was entitled to dower therein, had agreed in writing under her hand and seal, according to the statutes of this state, to accept in lieu of her said dower such sum in gross as the Chancellor should deem reasonable, and then having died before 'distribution, it was held, that the right vested in the widow to receive a sum in gross, interest could not he divested by her death, but should go to her children. Held further, that the value of the widow’s interest should be ascertained on the principles of life annuities.</p> <p>Where the estate is ordered to be 'sold, and the widow agrees to accept' a gross sum in lieu of dower, and she dies before a sale of the premises, her estate is determined b.y her death, and her children can have no claim to any portion of the proceeds of the sale.</p>

<p>This- was a motion to. dissolve an injunction.</p>

<p>The motion was. to. dissolve the injunction which, had been granted on the filing, of the bill.</p>

This case came on for final hearing on the bill, answer, and proofs. The facts fully appear in the opinion of the court,

<p>If the party appealing from the final decree of this court fils his appeal within ten days after such decree with the clerk of this court, it will prevent issuing process on such decree without the order of this court or of the Court of Appeals for that purpose..</p> <p>If the appeal be not filed within the time above limited the motion to stay execution is addressed to the discretion of the court, and will be granted only upon good cause shown.</p> <p>In a case- of several mortgages to a large amount which, were undisputed, and of subsequent judgments, some of which were in controversy, the court will not, on the application of the mortgagor, stay proceedings on the execution under the decree of foreclosure; but will order the surplus money to he brought into court to abide the result of the contest touching the judgments.</p>

<p>In a foreclosure suit tlie subpoena was returned with the usual affidavit of the nonresidence of the defendant. It appeared that the defendant had separated from his wife, who had gone with her children to her father, the complainant. The defendant, after boarding in the county of Hunterdon for a short time, left the state, and was confined for crime in the penitentiary of Pennsylvania.</p> <p>Held, that the actual domicil of the wife was not the legal domicil of the husband ; nor could it be regarded, contrary to the fact, as his actual residence within the meaning of the statute regulating the service of process.</p>

<p>To establish a case of desertion sufficient to authorize a divorce, it should appear that the wife left her husband of her own accord, without his consent and against his will, or that she obstinately refused to return without just cause on the request of her husband.</p> <p>Desertion cannot be inferred from the mere unaided fact that the parties do not live together.</p>

<p>This case came before the court on a motion to dissolve the injunction, which had been granted on filing the bill.</p>

<p>The court will not extend tlie time for answering in order to admit the defence of usury.</p> <p>"Where the time has been extended by order of the court without notice to complainant the court will modify the order, so as to exclude the defence of usury.</p> <p>When after the time for answering has expired, the complainant grants an extension, the defence of usury will not be permitted to bo sot up. Contra, where such consent is given before- tho defendant is in laches.</p> <p>Where husband and wife are made defendants to a bill in equity, the husband must appear for both, and tho complainant is entitled to a joint answer.</p> <p>If the husband is unable to put in a joint answer, or if the wife desire to answer separately, or the-husband- is not in a situation to answer for her, an order for a separate answer must be obtained.</p> <p>If either husband or wife answer separately, without an order authorizing it, such answer will be suppressed as irregular.</p> <p>The answer must not only he joint, but must be sworn to by the wife, or it will be irregular; hut the irregularity will ho waived by the complainant filing a replication.</p>

<p>Upon principles of public law, it is clear that the power of erecting a bridge, and taking tolls thereon, over a navigable river which forms the coterminous boundary between two states can only be conferred by the concurrent legislation of both states.</p> <p>When the power to make and maintain such bridge, and take tolls thereon, has been given by the joint legislature of both states, the principle could hardly be admitted, that either state, by its separate legislation, could declare that no other bridge should be built across such river within certain limits, and thus render the franchise exclusive.</p> <p>By the agreement entered into between the states of New Jersey and Pennsylvania, the river Delaware, in its whole length and breadth, is to be and remain a common highway equally free and open for the use of both states, and each state is to enjoy and exercise concurrent jurisdiction within and upon the water between the shores of said river. Both states concurred in granting to complainants the right to erect and maintain their bridge, and take tolls thereon. The legislature of New Jersey afterwards passed an act declaring “ that it should not be lawful for any person or persons whatsoever to erect, or cause to be erected, any other bridge or bridges across the said river Delaware at any place or places within three miles of the bridge to be erected.”</p> <p>'Held, that even if it was the intention that this act should take effect without the assent of the state of Pennsylvania, that it is void on the ground that it is in contravention of the agreement above mentioned between the two states. As neither state, by the exercise of her sole jurisdiction, has the right, by the terms of the agreement, to grant the franchise, so neither can lawfully contract to refuse to grant it.</p> <p>Under the circumstances, as exhibited in the case, it was further held, that the act of 1801, which conferred the exclusive privilege on the complainants, was not designed by the legislature of Now Jersey to go into effect until the same had received the assent of the legislature of Pennsylvania.</p> <p>Whether a corporation has violated its charter or forfeited its franchise, is a question solely for the determination of a court of law.</p> <p>But when a bridge company, sotting up an exclusive right within certain limits, asks an injunction to prohibit the building a bridge within such limits, a court of equity will not lend its assistance when it appears from the answer that the bridge of the complainants has been so far appropriated to the uses of a railroad as to render it inconvenient and dangerous for ordinary travel.</p>

<p>A decree pro confesso, signed after the time for answering has expired, is regular, though an order for further time to answer he signed and filed on the same day with the signing of the decree.</p> <p>And when the order for time is made without notice, though it be made to appear affirmatively that the order was signed and filed prior to the signing of the decree, the complainant will he entitled to the costs of proceeding until ho is served with a copy or with notice of the order.</p> <p>A defendant coming in, without unnecessary delay, by motion or petition, after a decree pro confesso regularly taken, will, upon any reasonable ground of indulgence, he permitted to answer upon payment of costs.</p> <p>But if it appear, upon an examination of the answer, that it contains no valid ground of defence the decree will not ho opened.</p>

<p>Where one purchases land, and assumes in his deed to pay off a bond and mortgage of his grantor, to which such land is subject, he thereby becomes a surety in respect to the mortgage debt.</p> <p>This obligation of the purchaser to pay the debt enures in equity to the benefit of the mortgagee, and he may enforce it against the purchaser to the extent of the deficiency in a bill to foreclose.</p>

Bill for discovery, relief, and injunction to restrain proceedings at law.

<p>In cases of public nuisance, a bill in equity asking relief by way of prevention, can be maintained by a private person only on the ground of apprehended special damage peculiar to himself, and distinct from that done to the public at large.</p> <p>A statute of this state authorized the freeholders of the county of Monmouth to erect a bridge over the Navesink river, “ beginning at or near the house of Samuel Hubbard, esq., commonly called Smock’s point, or near the house of Joseph Van Schoick, or from Joseph Smith’s point to the opposite shore.” On 3d January, 1826, the freeholders selected the site for the bridge, and upon which it was accordingly erected. A railroad had been recently constructed intersecting the road near the bridge at the south side of the river, rendering the use of the road at that terminus dangerous. To avoid this inconvenience, it was now proposed, in erecting a new bridge, to locate its southern terminus at a point about one hundred yards west of its original site. The complainant was the owner of about twenty-five acres of land, near the termination of the existing bridge, bounding' on the public road leading from the bridge, of a valuable wharf upon the river, a boarding house, and other valuable improvements, situate upon streets connected with the road leading to the bridge, to all of which it afforded the most convenient access.</p> <p>Edd — 1st. That the right to erect bridges over navigable rivers does not reside in the chosen freeholders by virtue of their general powers, but must be derived from special power conferred by the legislature.</p> <p>2d. That by the above act, the power of locating the bridge within certain limits was given to the discretion of the freeholders; but that having, exercised that discretion, and the selection having been made, their power was exhausted.</p> <p>3d. That in this case the freeholders had not the power materially to alter either terminus of the bridge.</p> <p>4th. That the injury sustained by the complainant was in no sense peculiar to himself, and on this account his bill could not be sustained.</p> <p>5th. That although the new bridge was technically a nuisance, yet as it was being built in good faith and for the public benefit, a court of equity would not restrain its erection, even on an information by the attorney general in behalf of the public.</p>

<p>The case was argued on bill, answer, and the admissions of the counsel. The facts on which the case was decided appear in the opinion of the court.</p>

<p>This ease was argued upon hill and answer on motion for au injunction.</p>

<p>Where the terms of a bequest of personally are such as would, in a deviso of real estate, create an estate tail in the devisee, it operates as an absolute gift of the personalty, and a bequest over on the failure of issue of the first taker is void.</p> <p>Where the gift is to A. and his issue, or to A. and the heirs of his body, and the limitation over is upon an indefinite failure of issue, the estate vests absolutely in the first taker.</p> <p>But where the limitation over is upon a definite, not an indefinite failure-of issue, the first legatee takes an estate for life only, and the limitation over is good. And it is immaterial in such case whether the gift to the first taker be of the subject itself or only of the use.</p> <p>The law requires wills, both of real and personal estate, to be in writing, and parol evidence is not admissible to add to, contradict, or vary their contents.</p>

<p>"Words in a will, which if applied to real estate would create an estate tail, will vest personal estate absolutely in the legatee.</p> <p>Consequently a bequest of personal property to take effect on tbe death of the first legatee without issue, or on the failure of heirs of his body, without other restriction, is too remote.</p> <p>But it is equally well settled that a legacy of a chattel interest generally, or for life, or for any number of lives in being, and limitation over upon the failure of issue confined to twenty-one years after a life in being, is good.</p> <p>A testator bequeathed the interest of the fund to his wife during her life, and upon her death lie gave the fund to his two sisters, Eliza and Susan, in equal shares, " during their lifetime,” and upon the death of either of them to the survivor, “ for her lifetime hut if both or either of them should die leaving a child or children, the share of each, “ so bequeathed for her lifetime only,” to go to her child or children. If one should die leaving a child or children, and the other should die leaving no child, the shares of both to go to such child or children. If both should die “ leaving no heir or heirs, the shares of both to go to the children of testator’s sister Augusta; but should she have no children living at the time the above bequeathed property should have lawfully gone from the possession of the testator’s wife, and also from the possession of either or both of her sisters, Eliza and Susan, then the property bequeathed to become the property of all the other legal representatives of the testator.</p> <p>J'{eld, that the bequest over upon the doatli of the testator’s sisters was not upon their death vnthout issue or upon the failure of issue, hut upon their dying “ leaving no children,” and that those terms import leaving no children at the death of the legatee.</p> <p>Also, the bequest being upon the death of either of the sisters without issue “ to the survivors," it imports that the testator intended the bequest to take effect upon a definite failure of issue, and consequently the sisters take only the use of the fund for lifo.</p>

<p>Testatrix was possessed of personal and real estate, and by lier will directed the latter should be sold by her execiltors, ahd after giving nuniorous pecuniary legacies, principally among her relatives and the reíatives of her deceased husband, she added, “and if there is anything over and above left, let it be equally divided among all the heirs.”</p> <p>Held, that the word heirs, in the above connection, means “next of kin.1'</p> <p>Where money or personal property is bequeathed to the heirs of A. or to the heirs of the testator, if there be nothing in the will showing that the testator used the word in a different sense, the next of kin are entitled to claim under the description as the persons appointed by law to succeed to personal properly.</p> <p>It is also a well settled rule in equity that where lands are directed to bé converted into money, and the proceeds givon as a legacy, it Will he treated as a legacy of personal estate.</p> <p>Where the property under a bequest passes to the persons entitled under the statute of distributions to receive it, in the absence of any express directions in tho Will it will go in the proportions prescribed by tbe statute. In sneh case, where they are not all in equal degree the children of a deceased parent will take b.y right -of representation per sierpes, and not per capita.</p> <p>But in this case the direction being that the fund shall be divided equally among all the heirs, the direction must prevail, and tho legatees takeper capita.</p>

. Thfe petition for the writ of habeas corpus in this case was filed on the 28th of March, 1860. The petitioner represents that she is a married woman, the mother of two infant children of tender years, viz. a daughter, who completed her fourth year in July, 1859, and a sou, who completed his third year in January, 1860.

<p>An order tor Miihiteuiincapendente lite will not be made in behalf of a widow on lior bill for dower,</p> <p>1'pov general principles alimony or main ten anco is not allowed, a.wept sm against ilia husband himself, and that only as incidental to a bill for divorce or oilier relief against the husband,</p>

<p>When tlie “interest” or “produce” of a fund is bequeathed to a legatee, or in trust for him without any limitation as to continuance, the principal will be regarded as bequeathed also.</p>

<p>After the testimony lias been closed, and the cause regularly sot down for final hearing, the court will not permit a supplementary answer to ho put in, unless the delay is satisfactorily accounted for.</p> <p>It should appear that the matter of the supplementary answer is new, or a sufficient reason given for not having it in the original answer.</p> <p>The mortgage sought to he foreclosed was given to secure part of the consideration on the purchase of the mortgaged premises. The title to a part of the premises failed. The complainants were not the vendors of the premises nor the original mortgagoos. They held the mortgage by assignment, executed prior to the sale of the premises by the original mortgagor to the defendant. Under these circumstances, the fact that the title made by the mortgagor to the defendant, the present owner, was defective, can in no wise affect the rights of a bona fide mortgagee under a mortgage executed prior to the conveyance.</p>

<p>Partnership property must first be applied to the payment of the partnership debts. The individual creditors are entitled only to share the net residue after the debts of the partnership are satisfied.</p> <p>Beal estate, although the title stands in the names of the individuals composing the firm, if purchased -with the money and for the uses of the firm, belongs to the partnership, and is liable in the first place to the partnership debts.</p> <p>One partner cannot convey to a creditor of his own, so as to give him a preference over the creditors of the firm, his undivided interest in the real estate belonging to the firm, although the title to such property stands in the individual names of the partners — such grantee having notice of the equitable rights of the firm in the premises.</p>

<p>If no replication has been filed tbe facts stated in tbe answer must be taken as true on the hearing.</p> <p>A decree rendered against the complainant was opened upon, it appearing that the cause had been submitted to the court by the counsel of the complainant under the misapprehension that an answer to the replica-cation had been filed.</p> <p>Had the counsel upon both sides acted under the same misapprehension, and the evidence in the cause been taken, the filing of the replication would have been regarded as a mere form, and would have been permitted at the hearing as a matter of course.</p>

<p>A mechanic’? lien under the statute takes priority upon the building over a prior mortgage upon the land.</p> <p>But the supplement of 16th March, 1859, which creates a lien for repairs, makes it subject to any mortgage prior to the filing of the lien.</p> <p>In this case the premises ordered to be sold entire, and relative value of building and land ascertained.</p>

<p>After decree, if tile defendant or liis representative have an interest in the further prosecution of the suit, the suit may be-revived at his instance.</p> <p>A defendant having a beneficial interest may exhibit a bill of revivor for the purpose of appealing from decree.</p> <p>The mere fact that three years have elapsed since the signing of decree, cannot be set up on demurrer to the bill of revivor.</p> <p>The objection arising from lapse of time is a mere matter of limitation, which must be pleaded, even, though the objection appear upon the record.</p>

<p>When legacies are directed to- be paid out of the estate of the testator, the real estate is charged with the legacies.</p> <p>So when the lands are devised to the executors, who are directed to pay the legacies.</p> <p>The general rule, that a legacy bears interest from the time it is payable, admits of an exception where a legacy given by a parent to a minor child is made payable at a future day, and no provision is made for the support of the legatee in the meantime.</p> <p>Interest not allowed under the language of the will in question and the circumstances of the ease.</p>

<p>Tlie question is well settled at common law that the cancellation of a deed by consent of parties will not divest the grantee, and revest in the grantor an estate which has once vested.</p> <p>The title to lands vested in a married woman by an unrecorded deed can not be divested by her parol consent that such deed may be cancelled, and a conveyance made by her grantor to her husband.</p> <p>The testimony of a married woman, illegally elicited before a grand jury on a charge of bigamy against her husband, is not admissible against her on a question of property.</p> <p>Can a grand juryman, being a witness in a suit respecting property, disclose the secrets of the grand jury room ? Query.</p> <p>Ajeme covert was seized of certain lands. She being ill, consented, at the solicitation of her husband, to the cancellation of her deed and to a conveyance from her grantor to her husband. During her lifetime her husband married a second wife. Being imprisoned on charge of bigamy, he and his mistress reconvoyed the lands to his wife, she and her husband executing a mortgage for the benefit of the husband to a third -party; this mortgage was afterwards assigned to complainant, who Was a lawyer, the counsel of the husband, and had knowledge that the property had been held by the husband in trust, and that the mortgage was also held in trust for the husband — it Was held that the complainant had suffi - cient knowledge to put him on inquiry: that he was not a bona fide holder, and that the mortgage was void in his hands.</p>

<p>The law implies no promise to pay for services rendered by members of a family to each other, whether by children, parents, or other relatives.</p> <p>The rule is well settled, that a mere moral obligation, constitutes no legal, consideration for a contract.</p> <p>A widow and her son wore living together ; the former performed certain services, such as washing and ironing, &c., the latter contributed somewhat to the support of the family. The mother lent to the son, from time to time, small sums of money. The son, having become embarrassed,</p> <p>- executed a mortgage to liis mother, the consideration being the services and the loans aforesaid. (</p> <p>Held, that, as against creditors, the loans constituted a valid consideration —contra as to the services.</p>

<p>Matters which are known to complainant before the decree in the original suit will not support a supplemental bill; nor will matters which have arisen since, if they are merely cumulative evidence of the charges in the original bill.</p> <p>That a supplemental bill is filed without authority of the court is not matter of demurrer, though it may on that ground, in the discretion of the court, be dismissed.</p> <p>The supplemental bill iu this case held to be multifarious,</p>

<p>An inquisition of lunacy is not conclusive evidence on the question of incapacity.</p> <p>The evidence in this case held to establish the fact, that the grantee was incapable, from mental incapacity, to make the deed in question.</p> <p>Held, also, that the conveyance would have been set aside on the further ground of undue influence exercised by the grantee and his family over the grantor, a man of weak mind, the consideration of the deed also being inadequate.</p>

<p>The testator directed his real and personal estate to be divided into fourteen equal parts, and devised and bequeathed one fourteenth part to his son James, disposing of the residue among his other children. By a subsequent clause in his -will, the testator ordered that from the value of the estate devised and bequeathed to his children, his executors should deduct, respectively, the amount of “money heretofore paid and advanced to or for either of my said children, or to either of the husbands of my said daughters, and all other moneys and accounts in which they may be severally indebted to me at the time of my decease.”</p> <p>At the time of testator’s death James was indebted to him.</p> <p>James’ share in the land devised under the will was claimed by virtue of an assignment which he had made, and also by force of a sheriff’s sale under a judgment.</p> <p>Held, that the claim of the executors to deduct the debts due the estate from James’ share of the proceeds of lands sold under proceedings in partition was 'paramount to the rights acquired by the assignment or the sheriff’s sale.</p>

<p>By force of the statute, a decree directing a conveyance to be made vests the estate, so that the rights of the parties, in 'case of a variance between the terms of the decree and of the conveyance, must depend upon the former rather than upon the latter.</p> <p>The terms of such decree must be construed precisely as the conveyance itself would be,</p> <p>A conveyance to the grantees and their heirs for the use of the grantees and their heirs, in trust for the persons beneficially interested, does not vest the legal estate in the latter by virtue of the statute for transferring uses into possession.</p> <p>And where the deed is thus technically drawn the trustees take the legal estate by virtue of the limitation without the aid of any reasoning derived from the nature of the estate.</p> <p>In construing limitations of trusts courts of equity adopt the rule of law applicable to legal estates.</p> <p>4n estate was conveyed to the grantees in trust to permit the grantor and his family and the father of the grantor, during their lives'respectively, to enjoy the estate, and take the rents and profits thereof, and after their death in trust to convey the premises to the son of the grantor and “ to such other lawful issue as the grantor may then have living, share and</p> <p>■ share alike in fee simple, as soon as he or they arrive at age” — held, that the son of grantor had a vested interest, which was not determinable by his death before the happening of the contingency upon which the legal estate Was to bo conveyed to him, viz, the determination of the intervening life estates. The general rule, as applied to legal estates, is no remainder will be construed to be contingent which may consistently with the intention be deemed vested.</p> <p>It is the uncertainty of the right of enjoyment which renders the remainder contingent, not the uncertainty of the actual enjoyment.</p> <p>In a deed, the word “ issue ” is universally a word of purchase, and whenever the word is made use of as a word of purchase, either in a deed or in a will, it is synonymous and coextensive with the term “ descendants.”</p>

<p>Refusing to account, excluding a copartner from an examination of the partnership books, and from a participation in the profits of the business, although breaches of duty, do not, standing alone, call for the interposition of the court by injunction before answer, 'or an opportunity of hearing.</p>

<p>After a decree pro confeiso, order of reference, and report of master, the decree will be opened, and the defendant let in to answer, if the equity of the case requires such relaxation of the rules of the court.</p>

<p>A testator devised as follows, viz. “ Item. I give and bequeath to my beloved wife the use and benefit of my home farm on which I now live as long as she remains my widow. At her marriage or decease, I will that the aforesaid farm be sold at one or two years’ credit. Item. I give and bequeath also to my beloved wife Mary five hundred dollars of the money arising out of the sale of said farm.” By a subsequent clause, the testator gave as follows: “ Item. I give and bequeath to my beloved wife Mary one hundred dollars out of the personal estate.”</p> <p>Held, that the bequest of five hundred dollars to the wife was vested at death of testator, and at her death passed to her personal representatives.</p>

<p>Where it appears that by tha judgment of a court in another state, between the same parties, all the material matters of equity relied upon by the complainant in his suit in this court are adjudicated and settled, the bill of complaint-will be dismissed.</p> <p>A court of equity will not permit a party who has had Ms rights fully investigated and decided in a court of equity in another state to avoid a final decision in that tribunal, and to raise for reinyestigation the same questions on the same facts.</p>

<p>hi practico connni&siouers amt others appointed to appraise damages and value lauds taken by incorporated companies by force of their charters have frequently, if not uniformly, united the value of the land and tlio damages m the same sum without discrimination.</p> <p>The bolter practice vronld lie to distinguish the value of the land from tlio damages.</p> <p>It is veil settled that the appraisement includes prospective damages resulting naturally and directly from the works of the company for all Time to come.</p>

<p>Whore a mistake lias occurred in the sale of lands there is no doubt of the power oí a court of equity to reform the conveyance.</p> <p>But when a deed is drawn strictly in accordance with the intention of the parties, although from a mistake in judgment it will n.ot effect the end in view, there is no case presented for the interference of the court.</p>

<p>J f a bill unite a demand of several matters of distinct natures against different defendants it is demurrable for mnltifariousnoss.</p> <p>So if a joint claim against two defendants is joined in the same bill with a separate claim against one of them only, either or both of the defendants may denrar for multifariousness-.</p>

<p>Courts of equity may, in iho exorcise of a sound discretion, refuse to decree tlie specific performance of a liard bargain.</p> <p>A father, having conveyed liis entire estate to liis children, upon their stipulating to provide for tlieir parents a comfortable support and maintenance suitable to their condition, wherever they or either of them might choose to reside, a specific performance of the contract was decreed in his favor.</p> <p>It is no defence to such suit that the property conveyed was totally inadequate to the support of the parents.</p> <p>Evidence of a cotemporaneous parol agreement is inadmissible to alter the terms of a written contract.</p>

Bill to set aside judgment at law as fraudulent against a subsequent execution creditor, and for an injunction to restrain a sale of the debtor’s property by virtue of the execution alleged to be fraudulent. ETo plea,, answer, or demurrer was filed.

<p>This was a motion to suppress answer.</p>

<p>On bills to restrain the execution of process or the performance of official acts the sheriff is made a party, as the design of the injunction is to restrain him from acting; but where no relief is prayed, and no decree asked against the officer, it is not necessary, nor usually expedient, for the sheriff to answer.</p>

<p>This was a motion to dissolve an injunction.</p>

<p>This was a motion for an order on defendant to deliver possession of lands sold on foreclosure,</p>

<p>The rule is inflexible, that a sale made by an administrator, or any other acting in a fiduciary capacity, to himself or for his benefit, will be held void at the instance of the party prejudiced.</p> <p>The remedy in equity is to set aside the sale on equitable terms, and to treat the administrator as a trustee for the parties in interest.</p>

In a former suit between these parties for the same cause of action the defendants demurred. The demurrer was sustained, and the complainant’s bill dismissed. (8 Stockt. 133.) The defendants now ask that the proceedings in this suit he stayed until the costs of the former suits are paid, and that after such payment they he allowed time to plead, answer, or demur.

<p>Liabilities voluntarily incurred by a married woman will be charged upon ber separate estate, but sbe cannot by ber contract make herself personally liable..</p> <p>The act of 1851?, which provides that a. ferric covert may covenant as to the title of ber lands, affords the strongest legislative construction that the act of 1852 does not by necessary implication confer upon her the right to dispose of her-real estate, or to make contracts in regard to it.</p> <p>A contract'entered; into by a married woman for the sale of her estate cannot be enforced..</p> <p>But equity will charge her separate property with the repayment of money advanced to the wife, at her instance and for her benefit,, or on account of her estate.</p>

<p>Where lands are devised to a woman and her children, she having children living at the time of the devise, the word “ children” must be taken as a word of purchase, and the children take a joint estate with the mother. A provision that the devisee shall pay an annuity for the life of another is sufficient at the common law to enlarge a life estate to a fee simple.</p> <p>A testator bequeathed the rest, residue, and remainder of his real and personal estate to his grand daughter and her children, provided she should pay to S. the sum of §40 during her natural life, and should paint and keep in good repair the fence around his burial lot. At date of will and at the death of the testator the grand daughter had two children living, a son and a daughter. In a previous part of the will provision was made for the son of the grand daughter, the fund being withheld from him until he attained twenty-one.</p> <p>Held, that the property .included in the residuary clause went exclusively to the grand daughter.</p> <p>Held further, that her estate in the lands was a fee simple, and not a fee tail.</p> <p>There was a codicil to the above will, as follows: “ I, D. J., make this codicil to my last will and testament, that is, I sell unto O. S. my tavern house and lot, with one-third of the lot behind the barn, for the sum of $6950, provided he, the said C. S., satisfies my executors as to the paymenl of the same.” Held, that the design of the codicil was to empower the executors to convey the land \yhioh the testator had agreed to sell upon the payment by the vendee of the purchase money.</p> <p>It is not competent for the purchaser to show by parol evidence that the scrivener who drew the codicil made a mistake, and that lie was to have two-thirds of the lot behind barn.</p>

<p>When an annuity is charged on real estate the rule is, that it does mot commence until tlio devisee of such estate is entitled to the possession thereof, This principle is applicable where a sum of moiiey is charged on land in which the testator had only a reversion.</p> <p>The lapse of twenty years without payiieit or allowance of principal or interest of a legacy will raise a presumption of payment, tot such presumption may be overcome by evidence-.</p> <p>The wife’s right of dower Will be protected as against post nuptial mortgages not executed by her.</p>

<p>A deed of conveyance,, absolute in its terms, given to secure a loan of money, is a mortgage, $nd the right of redemption exists although the money was not repaid at the time agreed npon.</p> <p>©nee a mortgage- always a mortgage,, is a maxim of equity, to which there Is no exception,</p> <p>fhe. right of redemption, is an. inseparable incident of which the mortgagor cannot deprive himself, even by an express covenant.</p>

<p>It is a well settled! rule, that where- serviees are- rendered' gratuitously or without any view to compensation, hut in the hope of receiving a legacy or devise from the person to whom the services are rendered, the person rendering the serviees can recover no compensation therefor.</p> <p>A father made a verhel agreement with his youngest son that if he would remain and work his farm,, and support and maintain him during his life, that upon his death the son- should' have the farm.. The son remained and worked the farm, for upwards of fifteen years, to the satisfaction of the father, who then becoming displeased with him, conveyed the farm to- h-is two other sons, in consideration of maintenance for life. Heldr—</p> <p>1. That-as it appeared that the- complainant’s.services were rendered to his father not gratuitously, but upon a distinct understanding between himself and his father that he-should be compensated for his services, and that the material part of that agreement was that upon his father’s death, provided he continued to' serve and provide for himi during his life, he should receive the- homestead farm, that the- agreement thus proved was valid in law..</p> <p>2. That part performance took tile case out of the operation of the statute of fraucfe..</p> <p>The hill in this case- permitted! to be amended after final hearing, so as to make the contract alleged agree with that proved,.</p>

<p>A decree will not be opened on the unsupported affidavit of a defendant that the complainant verbally agreed not to prosecute the action.</p> <p>Where a defendant is asking, as a matter of favor, to be permitted to defend, neither a court of law or of equity will grant the request if the defence rests on the ground of usury.</p> <p>Usury is Hot l’ogardecl as an equitable defence,</p> <p>A loan made at seven per cent, on 8th May, 1856, the lender living in Essex, and the borrower in Middlesex, the land lying in the latter county, held not to be usurious as the law then stood.</p>

<p>On a bill filed for an account and to execute the trust created by a deed absolute on its face, but winch in point of fact was executed upon certain trusts, viz. to satisfy the debts of the grantor, and then for the use and benefit of his family, the widow and heirs of the grantor are not only proper but necessary parties.</p> <p>All persons whose interests are involved in the issue, and who must necessarily be affected by the decree, are necessary parties.</p>

<p>In a foreclosure suit, when an answer has been filed by a junior encumbrancer, which neither denies the amount claimed nor the order of priority, an order of reference cannot be made, unless by consent, without setting the cause down for hearing.</p>

<p>Alimony.</p> <p>Application to increase or diminish the allowance may be made by petition.</p>

<p>When a cause in a divorce suit is referred to a master, it is irregular to examine a witness before another master.</p> <p>A divorce will not he decreed upon proof that the husband Went away and lived apart from his wife. A mere separation cannot be considered a desertion within the meaming of the statute.</p>

<p>The personal estate alone is liable for the payment of legacies, unless the land is by the will made chargeable either expressly or by clear implication.</p> <p>Parol evidence of the declarations of the testator is not admissible to show an intention to charge legacies upon the land.</p> <p>That the personal estate is not sufficient to pay the legacies will not of itself make the land chargeablet</p>

<p>A bill of interpleader will not be sustained unless there is a well founded apprehension of danger from conflicting claims to the fund in dispute.</p> <p>Under the circumstances of this case the hill was retained, but no costs allowed out of the fund.</p>

<p>A formal traverse of material matters contained in the bill is not sufficient to dissolve an injunction. The answer must be full and satisfactory.</p> <p>A creditor, having exhausted his remedy by execution at law, has a right to come into a court of equity to set aside a, conveyance alleged to have been fraudulently made by his debtor.</p>

<p>An innocent purchaser is not liable to a latent equity of which he was igno- . rant.</p> <p>A mortgagee is a purchaser of the mortgaged premises within the intent of the statute of frauds.</p> <p>A. and B. jointly executed a mortgage to secure $5000 upon land of which they were equally seized as tenants in common. A., by an arrangement with B., received only $1000 of the mortgage money. B. after-wards executed a second mortgage to another party on his moiety of said lands and on another lot owned by him in severalty. Both mortgages have been duly recorded. -Held, that as against such second mortgagee, the first mortgage was a lien equally on the shares of A. and B. in the premises.</p>

<p>To entitle a party who pays the debt of another to the rights of the creditor by subrogation, the debt must be paid at the instance of tlie debtor, or the person paying it must bo liable ’as surety or otherwise for its payment.</p> <p>Where the title to land is in a married woman as her separate property, she and her husband living separate, and money is paid and advanced at her instance and for her benefit, a mortgage executed by her alone to secure such advances will be a valid and equitable lieii on such property.</p>

<p>A divorce cannot be had on the ground of adultery if the husband has been reconciled to his wife after the adultery committed by her, or knowingly retain her after she has committed adultery.</p>

<p>A wife having left lier home with the consent of her husband with the intent of spending the holidays with her mother, her subsequent change of purpose and refusal to return will not convert such absence into a wilful desertion from the time of leaving her home within the act relating to divorces.</p>

<p>A decree will bear only six per cent, interest, although founded on a mort-gage drawing seven per cent.</p> <p>Decrees in equity, as well as judgments at law, universally hear the legal ra te of interest, without regard to the terms of the contract or to the place where it was executed, whether within the state or abroad.</p>

<p>Every statute is hy implication a repeal of all prior statutes, so far as it is repugnant thereto.</p> <p>If a subsequent statute be not repugnant in all its provisions to a prior one, yet if it was clearly intended to prescribe the only rule that should govern in the case provided for it repeals the original act.</p> <p>But unless the latter statute is manifestly inconsistent with and repugnant to the former, both remain in force.</p> <p>There is nothing in the act to establish the city of Elizabeth which expressly or by necessary implication supersedes the trustees of the incorporated school district or abrogates their rights of property.</p>

<p>TVhore the necessity for filing the bill was occasioned by the misconduct of the defendants as executors, in omitting to inventory and in refusing to account for moneys which were duo the estate, no costs will he allowed them out of the estate.</p>

<p>A mortgagor conveying the premises procured and delivered to tlie vendee a receipt from tlie mortgagee stowing that tlie interest on the mortgage was paid to time of sale. The vendee afterwards sold the premises, stating that the interest was paid as above, but subsequently redelivered the receipt to his vendor, who gave it up to the mortgagee. Held, that the interest could not be recovered against the second vendee on a foreclosure of the mortgage.</p>

<p>A person purchasing pendente lite is subject to all the equities of the person under whom lie claims,</p> <p>In a foreclosure suit, the costs incurred by the complainant in resisting a motion on the part of the mortgagor to sot aside the execution will be ordered paid out of the surplus money in preference to the claim of a purchaser of the mortgaged premises. Who takes title from the mortgagor after the decree and before tbe motion to set aside execution,</p>

<p>A nice or doubtful question of law will not be decided on a motion to dissolve an injunction, but will be reserved for tbe final bearing.</p> <p>Aft injunction restraining interference with the complainant in the exercise of his rights as a partner of the defendants will he dissolved on the clear averment in the answer, that the partnership was dissolved by mutual consent.</p> <p>Can a corporation enter into a copartnership ? Query.</p>

<p>The law is well settled in this state, that when executors jointly settle their final account they aro jointly liable for the balance so ascertained.</p> <p>In such case the parties interested may rely on the settlement, and are not driven to a discovery in whose hands the funds are or in what proportion the executors are liable.</p> <p>If a trustee, by his own negligence, suffers his cotrustee to receive and waste the trust fund, when he had the means of preventing such receipt and waste by the exercise of reasonable care and diligence, he will in such case be held personally responsible for the loss.</p>

<p>A court of equity will grant an injunction to restrain a public nuisance at tbe instance of a party Who sustains a special injury.</p> <p>But a mere diminution of the value of the property of the party complaining by the nuisance, without irreparable mischief, will not furnish any foundation for equitable relief.</p> <p>The location of a railroad through a public street in a line not -warranted by law, will not be enjoined at the instance of the owner of an unimproved building lot suffering no present detriment.</p>

<p>In case of a bill for specific performance of an agreement for the sale of land containing averments of a parol enlargement of the time of payment, possession, and the erection of permanent improvements, the injunction will be dissolved upon the filing of an answer denying those averments,.</p> <p>It is not necessary that affidavits annexed to answers should be taken upon notice, or that copies should be served on the adverse party.</p> <p>Where a motion is made to dissolve an injunction upon the answer, affidavits annexed to the answer can only be read in reply to affidavits annexed to the bill.</p>

<p>The usual and appropriate meaning of the word “premises" in conveyances is, “ the thipg demised or granted by the deed.”</p> <p>It is the inflexible rule of law that a deed, except in cases of latent ambiguity, must be construed according to the legal effect and meaning of its terras unaffected b.y extrinsic evidence,</p> <p>A mere agreement to transfer the property and stock of ad incorporated company cannot affect its legal existence, nor will the actual transfer of all the real add personal ¿state Of the corporation, including the stock itself, extinguish its charter.</p> <p>The Sussex Zinc and Copper Mining and Manufacturing Company conveyed to the New Jersey Zinc Company “all the zinc and other ores, exee.pt franklinite and iron ores, found or to be found in or upon certain premises; the title aüd interest of the forriier company became after-wards legally vested in the Boston Brailklinito Company. It appeared that the two oros, zinc and frankliniio, existed in the mine in close mechanical combination, so that tho one could not be removed without the other ; but that at tho dale of the conveyance the masses or veins on tho premises in question were regarded and known ás ftáiikliliite. Held—</p> <p>J at. That tho exception in the deed Was not limited to the franklirlite and iron ores, where they existed separate and apart from the zinc.</p> <p>2d. That the grantor retained a freehold estate in the thing excepted, and tho grantee acquired a freehold estate in tho thing granted, and that the terms “ zinc ores” düd “ fraükliníto áúd iron ores” wore used as a description of tho land granted and reserved.</p> <p>3id. That in construing the deed reference must bo had, in order to ascertain the intention of the partios, to the existing state of knowledge of the subj ect matter, the received meaning of the terms employed, and the usages prey ailing at ihe datd ol the conveyance.</p> <p>-itli. That by the term “ zinc ores,” as used in the deed, was meant those veins in which the ore of zinc w'as the predominating one, and by frank» Unite not the pure mineral of that name, which was never found except in small and detached specimens, but those veins m which franklinito predominated, and which Were known and designated as franklinite ore.</p> <p>A deed for a mine with mining privileges is not a mere license to take away ore, or the grant of an easement, but of a part of the freehold.</p> <p>A court of equity will rarely interpose by injunction to restrain the working of mines until the right is established at law.</p>

<p>To legalize the taking of seven per cent, interest on contracts by virtue of the supplements to the act concerning usury, the contract must be actually made within one of the districts specified in the act.</p>

<p>To constitute a mortgage, the conveyance must be originally intended between tlie parties as a security for-money or as an encumbrance merely.</p> <p>Parol evidence is admissible in equity to show that a deed absolute on its face was intended as a mortgage, and that tho defeasance was omitted by fraud, surprise, or mistake.</p> <p>A deed made to hinder, delay, or defraud creditors is void only as to creditors : it is valid as against the grantor and bis heirs.</p> <p>The terms of the contract must be clearly proved'before a party is entitled to a decree for its specific performance.</p>

<p>In partition suits the costs of the proceeding, as well as the partition itself, will be charged upon the several shares in proportion to their respective values.</p> <p>Counsel fees do not properly constitute a part of the costs and expenses to be charged against the owners of the several shares.</p> <p>The court will allow to the commissioners such sum beyond the usual fees fixed by the statute as may be proper.</p> <p>The report of the commissioners designating the boundaries of the several lots, with the map, constitutes the usual return ; but the cost of making a field book will be allorved.</p> <p>A charge for drawing the return is proper.</p> <p>The cost of a copy of the return for record in the county clerk’s office allowed in this case.</p> <p>A share may be subdivided on partition, and the costs thereof will be charged on that share.</p>

<p>A chattel mortgage is a valid contract under the laws of this state, and the rights of the parties under it will be protected and enforced at law and in equity.</p> <p>The interest of the mortgagee in personal property, where the possession remains with the mortgagor and before condition broken, cannot be taken in execution as the property of the mortgagee.</p> <p>After forfeiture the mortgagee, even without foreclosure, may, upon due notice, sell and transfer the absolute right to the chattels.</p> <p>Actual possession of the chattel is not essential to support his title.</p> <p>Equity will not permit the mortgagor to sell the chattels to which the mortgagee has the legal title and the right of immediate possession, and to place them beyond the reach of the mortgagee and the control of the court.</p>

<p>The expression in a will “ dying without lawful issue,” under a well settled rule of law, imported an indefinite failure of issue.</p> <p>Personal property could not be limited oyer on so remote a contingency, and consequently under such a gift of a personal chattel the legatee took the absolute property.</p> <p>But by the New Jersey statute of March 12th, 1851, the words “ dying without issue ” and similar expressions are made to denote a definite failure of issue, so that the will of a person dying since that act went into effect, thus limiting personal property, will pass to the legatee only a defeasible interest, which will cease upon his dying without leaving issue at his death.</p> <p>Where one legacy is given as a mere substitute for another the substituted, gift is subject to the incidents of the original gift, although not so expressed in the testamentary instrument.</p> <p>On bills of interpleader the court disposes of the questions arising in various modes, according to the nature of tlie question and the manner in which it is brought before the court.</p> <p>]f at the hearing the question between the defendants is ripe for decision the court will decide it and pronounce a final decree.</p>

<p>In proceedings for dower, if the defendant deny the complainant’s right to dower the question must be tried at law.</p> <p>But the court may inquire of what estate the husband died seized, and this involves an inquiry into the nature and character of the husband’s right to the estate.</p> <p>A bill setting up an equitable title to the land in the widow, and praying that if that claim shall fail that dower may be assigned, is not multifarious.</p> <p>An obj ection to a bill on the ground of multifariousness, taken at the hearing, is not much favored.</p> <p>Where the guardian of a female infant wrongfully converted the personal estate in his hands into lands, placing the title in a third person, who afterwards conveyed the same to the husband of the infant, upon the death of the husband the widow cannot claim an equitable title to such lands.</p>

<p>A parol surrender of demised premises, although invalid at law by reason of the statute of frauds, will be sustained in equity when consummated by a delivery of the counterpart of the lease, the key of the dwelling, and the possession of the premises to the landlord.</p> <p>In such case the court will enjoin the collection of the after accruing rent.</p> <p>When the ends of justice require it, the injunction will be continued to the hearing.</p> <p>If the defendant is absent from the country, his oath to the answer must be taken under a commission.</p> <p>Affidavits annexed to an answer need not be taken on notice, nor is it necessary to serve copies, unless in special cases, under the rules of the court.</p>

<p>Application on behalf of a purchaser of mortgaged premises, sold under and by virtue of a decree of foreclosure, for an order to deliver possession of the premises, in order to obtain a writ of assistance.</p>

<p>To effect a regular service of an injunction, the writ itself, under the seal of the court, must be shown to the party against whom it issues, and a true copy thereof delivered to him.</p> <p>Personal service will bo dispensed with where the party is out of the stale or cannot he found.</p> <p>The modem practice is for the court, by special order, to dispense with personal service where the defendant avoids tlie service of the writ, or other circumstances render such order necessary or proper..</p> <p>The court will punish the violation of its order for the injunction though the writ he not served, if it appear that the defendant knew of its existence.</p> <p>Where the defendant and his wife were nonresidents, and the injunction was served out of the state on the husband, and proof was made that the wife could Hot bo found, an order was made that such service should he deemed valid, and directing a copy of such order to be served at the dwelling house of the defendants.</p>

<p>Where two lots are mortgaged to secure the same debt, and one of them is subsequently sold and conveyed by the mortgagor, the other lot is primarily liable under the mortgage.</p> <p>A release subsequently given by the mortgagee to the mortgagor upon the remaining unsold lot, without the assent of the purchaser of the lot sold, will not prejudice the rights of the purchaser.</p> <p>If the lot released is sufficient to satisfy the 'entire debt, the mortgagee cannot resort to the lot first sold ; but if sufficient to satisfy only a part of the debt, such first sold lot, in the hands of the purchaser, will be answerable for the deficiency.</p> <p>Reference ordered to' ascertain the amount due on the mortgage and the value of the premises released.</p>

<p>At common law, tlie husband is entitled not only to all the personal property which the wife owns at the time of her marriage, but to all that slio acquires by her skill or labor during the coverture.</p> <p>Though a gift from the husband to the wife is void at law, it will be pro • tooted in equity as against the husband, and if made by virtue of an ante-nuptial agreement, as against his creditors also.</p> <p>A married woman purchasing land with the knowledge and approval of her husband, the title being taken in the name of the husband, and he executing a mortgage- thereon for the cost of a dwelling subsequently erected, will acquire no equitable title to the promises, as against the husband’s creditors, on the ground that she mainly contributed to paying off the mortgage from tlie avails of lier labor during coverture.</p>

<p>Where a deed of conveyance, absolute in its form, was made, and the grantee executed a covenant, bearing even date, to reconvey upon the payment of a certain sum within a specified period, and it appeared that the deed was intended as a mortgage to secure certain loans, held—</p> <p>1. That the grantor was entitled to redeem.</p> <p>2. That the grantee of the premises should account for the rents.</p> <p>3. That credit should be given to the grantee for necessary repairs, costs of insurance, and lasting improvements, but no allowance for renting or taking care of premises.</p>

<p>In case the will directs the executors to invest the residue of the personal estate, and the interest to accrue thereon “ in good productive real estate at tlioir discretion,” and one of the executors, having funds in his hands, is prevented by the misconduct of his coexecutors from making the investment directed by the will, it is his duty to guard the estate from loss by applying, within a reasonable time, to the proper court for instructions.</p>

<p>Amount of commissions to bo allowed guardian and receivers.</p> <p>A trustee lias no right to subject tlie trust fund unnecessarily to charges for counsel fees.</p>

<p>wa^el, company^ authorized by legislative enactment to use the soil under the public roads for the purpose of constructing their works, having laid their pipes across the street of a city, will be compelled to lower them so as to conform to a new grade established by municipal authority.</p> <p>No public right can be taken away by mere inference or legal construction —it can only be by express grant.</p> <p>Equity will not interfere by injunction to redress public nuisances where the object sought can be attained in the ordinary tribunals.</p>

<p>A contract is not void because tbe corporation with which it is made is misnamed therein.</p> <p>Whore the complainant, being a corporation, sues by a wrong name, the bill may be amended, in this respect, at the hearing.</p> <p>The stockholders compose the corporation, and a more failure to elect officers at the time designated will not work a dissolution.</p> <p>The complainants, a building association, received from the defendant his bond and mortgage, reciting that ho was a shareholder in said building association, and had agreed to accept, and had received from said corporation §400 at the date of the bond, “upon and for the redemption of number 69, being tlie sum lent or offered to be received by him therefor.” The condition of the bond was as follows: “ Now, if the said A. W. M., &e,. shall pay to the said H. B. Association, number one, upon said share, the sum of §7, on the third Monday of each month thereafter, for the period of ten years from the date hereof, or until the surplus assets of said corporation shall be sufficient, over and above all its debts and liabilities, to pay on each unredeemed share, to the holder thereof, the sum of $8," &c. Held—</p> <p>1st. That the failure of other shareholders to pay their monthly dues afforded no defence to a suit for the foreclosure of said mortgage.</p> <p>2d. That the contract was in accordance with the charter of the corporation, and was not usurious.</p> <p>3d. That an agreement made by all the parties in interest that the affairs of the company should be wound up, and that the owners of the unredeemed shares should receive the sums they had advanced with interest, and that the owners of the redeemed shares who had given mortgages for the price of redemption should be discharged upon paying the amount of their mortgages with interest was valid, and should be enforced.</p>

<p>A judgment without the issuing of an execution operates as a lien from the time of its entry on the lands of the defendant, and a subsequent conveyance or mortgage executed by the defendant will not defeat such lien.</p> <p>Evidence relative to matters not stated in the pleading, nor fairly within its general allegations, is impertiment, and cannot he made the foundation of a decree.</p>

Bill for relief against a deed to the defendant, alleged to have been fraudulently obtained. Decree pro confesso and order for proofs taken 25th March, 1861. By the sheriff’s return, it appears that the defendant resided in the city of Yew York. The order of publication was published, in compliance with its terms, in a newspaper published at Morristown, i'n this state.

<p>Whore the owner of a spring lot, and' of a paper mill on- another trad, by an artificial arrangement conveys the water to the mill-, and then sells the spring lot, the purehaser'takes it subject to the burthen.</p> <p>The principle is, that whore the owner of two tenements sells one of them, the purchaser takes the tenement, or portion sold, with all the benefit» and burthens which appear at the time of the sale to belong to it, as between it and the property which the vendor retains.</p>

<p>A deed to be valid must go into the hands of the grantees with the consent of the grantors.</p> <p>In the absence of all evidence to the contrary, mere possession by the ¿ranteo of a complete instrument is sufficient evidence of a lawful delivery.</p> <p>Mere tradition of a sealed instrument, even to the party in whose favor it is draWn, does not necessarily ill all eases make it a deed,</p> <p>A sealed instrument, intrusted to a party with authority to deliver it to the grantoe in case certain conditions aro complied with, will not become a deed if delivered without compliance with such conditions.</p> <p>If the instrument be once delivered to the party Who on its face is entitled to it, it becomes eo instanti a deed, and no agreement in conflict with its plain terms will bo permitted to be proved to show that its operation as a deed is to depend on the performance of some condition subsequent.</p> <p>Whore the proof is clear that final transfer of the instrument Was not to be made unless certain terms were complied with, the law puts the party claiming its benefit to the proof of compliance.</p> <p>Parol evidence to defeat an instrument as a deed is admissible to show that when, tke defendants, or some of them, signed the instrument, it was stated by them, to the agent procuring their signatures, that it should be binding on them only in the event of its execution by.certain other persons.</p> <p>Neither does it make any difference whether the agent ever communicated the limitation to the party accepting the deed.</p> <p>The principle is settled, that one who claims through a special agent takes the risk of his want of power.</p> <p>The minutes of a corporation are not evidence of an agreement alleged to have been made by the stockholders as individuals, and not intended t.o bind the corporation.</p> <p>The object of an issue out of chancery to be tried by a jury is to inform the conscience of the Chancellor, and it is his province to determine what evidence shall be read before the jury.</p> <p>The action of the Chancellor on the verdict is a matter resting in his discretion, and is not subject to review in the Appellate court.</p> <p>Where twenty-one out of thirty-seven stockholders of a railroad company sign and deliver a bond for the payment of $35,000 to three of their own number, and it appears, upon the face of the instrument, that the bond was to be binding upon such as should sign it, and that each should become responsible when and as he signed it, parol proof is not admissible to show that it was not to be binding on any, until all the stockholders had signed it. — Per Vbedenburgh, dissenting.</p> <p>A bond in the following words — “We, John Black, Thomas Haines, (&e., naming nineteen others,) stockholders in the Delaware and Atlantic Railroad, send greeting: Whereas the Delaware and Atlantic Railroad Company borrowed of John Black and (two others) $35,000, and whereas we, whose names are hereunto subscribed and seals affixed, have agreed with the said Black and others that in case the corporate property should fail to pay said $35,000 and interest, so that a loss or deficiency should happen, that in that event each of us and each of them, the said Black and others, shall sustain an equal portion of said loss,” expresses upon its face that each should become responsible when and as he signed it, and excludes parol proof that none were to be responsible until all the stockholders of the company had signed it. — Per Veedenbuegh, dissenting.</p>

<p>Thu legislature, in 1790, incorporated tho complainants, and gave them the power to build a bridge over tho Hackensack river, to take tolls for man and beast passing over it, and by tho same law enacted that it should not be lawful Cor any person whatever to erect any other bridge over said river for an hundred years.</p> <p>In 1860, the legislature gavo to the defendants pow er to build a railway from Hobolmn to Newark, with the necessary viaduct over the said river ITackensack.</p> <p>Under this last act, the defendants commenced to build a viaduct over the said river, described in their answer to the bill of complaint thus: “a structure, so as to lay iron rails thereon, upon which engines and cars may be moved and propelled by steam, not to be connected with the shore on either side of said river, except by a piece of timber under each rail, and in such a maimer, as near as may be, so as to make it impossible for man or beast to cross said river upon said structure, except in the • cars of the defendants; that the ouly roadway between said shores and said structure will be two or more iron rails, two and a quarter inches wide, four and a half inches high, laid and fastened upon said timber four feet ten inches asunder.”</p> <p>Held, 1. That the said proposed structure was no bridge within the meaning of the complainants’ charter.</p> <p>2. That no structure across the river Hackensack, which had not a footway for man and beast to walk over on; was a bridge within the meaning of the complainants’ charter.</p> <p>3. That the term bridge, as known to the common law, was a structure over a river having a footpath for man and beast; and cases upon this subject reviewed.</p> <p>4. By the complainants’ charter, they may collect tolls from men walking over their bridge, and for animals walking over their bridge drawing their burthens ; by the defendants’ charter, they cannot collect tolls for such use of their structure: held, that the franchises given the defendants are not the same franchises as those given to the complainants, and therefore do not interfere with them.</p> <p>5. The first, fifth, and sixth sections of the defendants’ charter commented on and construed.</p>