Volume 16 — New Jersey Equity Reports

The bill in this cause was filed by Rufus Story, a stockholder in the Jersey Oity and Bergen Point Plank Road Company, for an injunction to restrain the commission of acts by the company, charged to be prejudicial to the interest of the complainant as a stockholder in said company.

<p>1. It is no defence to a suit brought by a wife after the death of her husband, to foreclose a mortgage made to her jointly with her husband for the benefit of the wife, that the bond was given to the husband alone, and to his heirs. She is the surviving mortgagee, and has a clear right to enforce her remedy under the mortgage.</p> <p>2. A party beneficially interested in a contract may maintain a suit in equity in his own name to enforce such rights, though he be not a party to the instrument creating them.</p> <p>3. Where there are several parties in interest, and the mortgagor is in doubt as to the rights of the complainant under a bill to foreclose, he is entitled to have the question judicially determined for his own security, but not at the cost of the mortgagee.</p> <p>4. The general rule is that the mortgagee is entitled to costs, both on bills to redeem and to foreclose.</p>

<p>1. Where a mortgage is given or assigned for the payment of a debt due to two or more jointly, on a bill to foreclose filed by the surviving obligee, the executor of a deceased co-obligee need not necessarily be joined as a complainant.</p> <p>2. When there are conflicting claims between the parties in interest in the mortgage debt, the surviving obligee may file the bill in his own name, and make the executor of the deceased co-obligee a defendant.</p> <p>3. Whether the executor of a deceased co-obligee should be joined with the surviving obligee as complainant, or be made a party defendant to the suit, is a question of form, and should be raised upon demurrer.</p> <p>4. Objections to pleadings which involve no substantial interest, are not allowed upon the final hearing.</p>

<p>1. A sale by auditors in attachment of several tracts of land, that might conveniently and reasonably have been sold separately, and where a sale of part would have been sufficient to satisfy the debts of the plaintiff' and the applying creditors, is a clear breach of trust, and will be set aside as void.</p> <p>2. A bona fide purchaser of land, subject to the lien of an attachment, is entitled to relief against an illegal or inequitable sale by the auditors.</p> <p>3. Where a judicial sale is set aside on the ground of gross negligence or abuse of trust, the officer making such sale, as well as the purchaser acting in collusion with him, will be condemned in costs. But where there is no charge of actual fraud or collusion, neither the officer nor purchaser will be condemned in costs.</p>

<p>By tbe act of 1854, Nix. Dig. 851, \ 64, when the mortgagee resides in a different township from that in which the mortgaged premises lie, the tax on the money secured by the mortgage is to be assessed against and paid by the mortgagor in the township where the lands lie, and the receipt of the collector therefor is made a legal payment for so much of the interest of the mortgage, and is to be allowed and deducted therefrom by the mortgagee. Held—</p> <p>1. The payment of the tax and the receipt of the collector is a legal payment of so much interest, not of principal; a payment of the accrued and accruing interest, not of interest to grow due at some future time.</p> <p>2. When a mortgagor, entitled to have the tax assessed against and paid by him deducted from the interest, has paid the interest in full as it became due, without deducting the tax, he cannot afterwards claim any deduction therefor from the arrears of interest.</p>

<p>Land owned by two tenants in common was ordered to be sold by commissioners appointed ,to make partition thereof. At the first sale the land was struck off to one of the tenants in common, who refused to accept' the deed or pay the purchase money. The premises were thereupon again exposed to sale, and struck off for a less sum. By the terms of the first sale, if the purchaser ■ refused to,comply with the conditions, the properly wis tobe resold, and the purcha'er held liable for the loss. The deficiency .on the second sale was $1200. On the distribution ofthe' proceeds of sale, the co-tenant daimed, as against the purchaser at the first sale, an allowance for the loss sustained,by reason of his non-compliance with the conditions. The claim being disputed, and an order of distribution having -been made, the commissioners refused to pay over the money in compliance with the terms of the order-, and filed a bill of interpleader asking to have the right determined. There was some dispute as to the terms of the order for distribution. tSeld-,— ■</p> <p>1. The only legal evidence of the terms of the order of the court, is the record, or'a duly■ certified copy thereof. Evidence of what passed at the time óf making it, or of the precise terms of the order itself as directed by the court,’is1 incompetent.</p> <p>2. The deficiency incurred by a resale of the property, can only be recovered by an action brought by the commissioners, and when recovered, be distributed by order of the court, as part of the money arising from the sale of the land.</p> <p>3. The deficiency can constitute no legal set-off against the claims of the defaulting co-tenant for his share of the proceeds of sale under the order for distribution.</p> <p>4. The case furnishes no ground for a bill of interpleader by the commissioners.</p>

<p>1. The validity of a contract must depend upon the laws of the state "where the contract was made.</p> <p>2. Where the answer alleges genérally, that the contract upon which the suit is brought is usurious, without any more specific allegation, it must be intended that the defence is that the contract is in violation of the statutes of this state, and to that objection alone the defence must be limited.</p>

<p>1. Where the evidence in a cause fails to prove that a transfer of promissory notes was procured by fraud or false accusation, or by any combination or conspiracy, it seems nevertheless, that the transfer may be held invalid on the ground of surprise, coupled with evidence of mental weakness.</p> <p>2. On this ground under the circumstances a re-hearing was ordered.*</p>

<p>1. The well settled doctrine of the court of equity is, that mere inadequacy of price affords no ground of relief, either against a private contract or a judicial sale.</p> <p>2. But inadequacy of price may be so gross and unconscionable as to shock the conscience, and, in the Cáse of a private contract, to amount to conclusive and decisive evidence of fraud; or, in the case of a judicial sale, to constructive fraud and abuse of ti ust.</p> <p>3. That is a public and a proper place for setting up advertisements, contemplated by the act regulating sales of real estate, which is likely to give information to those interested, and who may probably become bidders at the sale.</p> <p>' 4. The sheriff is hound to conduct the sale so as to protect the rights and promote the interests of all parties in interest, and to this end to secure, as far as practicable, the most general diffusion of the notice of sale.</p> <p>5. The true test of a proper exercise of discretion by the sheriff in setting up notices is, whether he has set them up as a discreet man, desirous of effecting a sale of his property to the greatest advantage, would have done.</p> <p>6. If a sheriff abuses, to the detriment of subsequent encumbrancers or of the defendant in execution, the discretion vested in him by law to make sale under execution, a court of equity will grant relief, although there has been a formal compliance in the conduct of the sale with all the requirements of the statute.</p> <p>7. It is not necessary that there should be actual fraud, committed or meditated. The abuse of discretion in the execution of the trust is a constructive fraud, against which equity will relieve.</p> <p>8. Where a sale by a public officer is conducted in violation of the spirit and policy of the law, and so as in fact to defeat the just claims of encumbrancers, or greatly to prejudice the rights of the defendant in execution, the sale will be set aside, though the formal requirements of the statute have been complied with.</p>

<p>1. In an action at law upon a penal bond, with condition for the payment of money only, tlie plaintiff is entitled to recover the full amount of the penalty as a debt, and the excess of interest beyond the penalty in the shape of damages for the detention of the debt.</p> <p>2. Upon a bill in equity for the recovery of a bond debt, either upon the bond itself, or upon a mortgage given to secure the bond, the obligee may recover ‘the full amount of principal and interest due upon the bond, though it exceed the amount of the penalty.</p>

<p>1. Where real estate is in fact paid for with the funds of a company, there is clearly a resulting trust in favor of the company, although the deed therefor is made absolute to a third party, and purports upon its face to be for his own use and benefit.</p> <p>2. A party so taking the title, becomes a trustee for the creditors and stockholders, and the trust will be enforced for their benefit at the instance of the receiver.</p>

<p>On final hearing.</p>

<p>Israel Woodward, by his will, gave and bequeathed as follows : “ I give and bequeath to my daughter, Elizabeth Black, the sum of fourteen hundred dollars, which sum 1 order my executors to put out at interest, and take land security for the same, and pay her the yearly interest arising thereon during her natural life; and if she dies leaving no lawful issue, I order the sard sum of fourteen hundred dollars to be divided between my sons and daughters equally.” He died leaving seven children, beside the said legatee. Shortly alter his death, six of the seven children signed the following instrument: “ Whereas, our father, Israel Woodward, in his last will and testament, has bequeathed unto his daughter, Elizabeth W. Black, the interest of $1400 during her natural life, but not to receive any part of the principal. Now be it remembered, that we, the subscribers, legatees of the said Israel Woodward, do hereby agree that the said sum of $1400 shall be paid to her by the executors of said will, at the time of the decease of Edward Black, her present husband; but in case the said Elizabeth W. Black should depart this life before the said Edward Black, then this agreement to be void and of no effect.” Held—■</p> <p>1. The gift over was valid. As applied to personal estate, such limitation over imports not a'n indefinite, but a definite failure of issue.</p> <p>2. By the terms of the gift, Elizabeth Black took the entire inte the testator, defeasible on her leaving no issue at her death.</p> <p>3. The sons and daughters of the testator, living at his death, took a vested interest in the residuary gift, defeasible upon the death of the legatee for life, leaving issue.</p> <p>4. The interest of the residuary legatees vested not in possession, but in right, upon the testator’s death, so as to be transmissible to their personal representatives.</p> <p>5. The limitation over is to all the sons and daughters of the testator, and the interest of either of such legatees is not defeated by his or her death before the legatee for life, but is transmitted to his personal representatives.</p> <p>6. The defeasible interest of the legatees in the legacies over, upon the death of the legatee for life, was assignable.</p> <p>7. The omission of one of the legatees to sign the agreement, will not invalidate it as against those who did sign it, they having derived all tho benefit sought by the arrangement, and having incurred no additional burden or loss.</p>

<p>1. Where a mortgage is given to secure a trust fund belonging to the mortgagor, as between himself and the holder of a second mortgage given by him, he can have no claim in equity to the fund, until the second mort ■ gage is satisfied.</p> <p>2. It is within the power of a court of equity to protect the interests of legatees in remainder, during the life of the tenant for life ; and the power will be exercised, not only in behalf of the legatee, but also of his assignee, or of any other person legally entitled to the fund, upon the determination of the estate for life.</p> <p>3. If a trust fund is in danger of being diverted to the injury of any claimant having a present or future fixed title thereto, the administration of the fund will be duly secured by the court, in such manner as the court may in its discretion, under all the circumstances, deem best fitted to the end.</p>

<p>1. Whether the execution commands the sheriff to sell so much of the premises as may be necessary to satisfy the decree, or to raise the sum required out of the premises, the duty imposed upon him, as to the quantity of land to be sold, is the same. His duty, in either event, is to sell only so much of the premises as may be necessary to satisfy the requirements of the execution, provided such portion can be conveniently and reasonably detached from the residue of the property.</p> <p>2. A mere error of judgment, or mistaken exercise of discretion, by the sheriff, in the absence of fraud or unfairness in the sale, affords no ground for the interference of the court.</p> <p>3. A judicial sale will not be interfered with, when the party seeking relief has been guilty of laches in the pursuit of his remedy.</p> <p>4. Motion denied without costs, the applicant acting in behalf of minors.</p>

<p>1. In the absence of any trust deed or settlement, defining and limiting the mode in which a separate estate shall be charged by the wife, equity will charge it, while she lives apart from her husband, with debts contracted by her for her own benefit, without any express appropriation by the wife, of the estate or any part of it, to the payment of the debt.</p> <p>2. The separate estate of a married woman is subject in equity to the payment of debts contracted in reference to, and upon the faith and credit of the estate.</p> <p>3. "Where a married Woman lives apart from her husband, and having a separate estate, contracts debts, the court will impute to her the intention of dealing with her separate estáte, unless the contrary is shown.</p> <p>4. It is no defence to a claim upon the separate estate of the wife, that the separate estate of the wife created by the statute (Mx. Dig. 503, $ 1,) ij a legal estate, and that the enforcement of the claim in this aspect, is not properly within the cognizance of a court of equity.</p> <p>5. The jurisdiction of a court of equity over the separate estate of a married woman rests not merely upon the ground that it is an equitable estate, but upon the ground that it is her separate estate, which is equitably subject to contracts and engagements entered into by her, which are not legally binding upon her personally, and which can not be enforced at law.</p> <p>6. Nor is it material, whether the estate is vested in a trustee, the infer-, est of the wife being merely equitable, or directly in her, so that she has both the legal and equitable interest.</p> <p>7. The statute (act of 1852, for the better securing of the property of married women,) does not impair the right of the husband to an estate by curtesy in the separate property of the wife.</p> <p>8. Nor, as it seems, does the act take away the husband’s right to administer upon, and to take as his own, the personal property of the deceased wife, where she dies intestate.</p>

<p>1. A citizen of another state, bringing liis effects into this, to establish a--residence hero, with the manifest intent of procuring a divorce, and immediately commencing a suit for that purpose, is not an inhabitant or a resident of this state, within the meaning of “the act concerning divorces.” (Nix. Dig. 223, § 1.)</p> <p>2. Under such circumstances, this court will not maintain jurisdiction of a suit for divorce, though the charge of adultery be clearly proved against the defendant.</p>

<p>On motion by the defendant, for an order to revive suit on the death of a sole complainant. The bill had been dismissed.</p>

<p>The facts essential to an understanding of the case are fully stated in the opinion of the Chancellor.</p>

<p>An injunction having been issued against the defendants as an insolvent corporation, under the “ act to prevent frauds by incorporated companies,” receivers were appointed who are now settling the affairs of the company. The receivers have filed their petition, asking the direction of the court in the disposition of the funds in their hands.</p>

<p>1. The evidence of an alleged paramour, being particeps criminis is but weak. Bat neither his evidence, nor that of the woman charged with adultery, is to be rejected on the assumption that they are guilty.</p> <p>2. Express testimony cannot be rejected on the sole ground of its improbability. Its impossibility alone can discredit the witness.</p> <p>3. A witness must state facts, not inferences, and the court can draw no inference, which the facts as proved do not justify.</p> <p>4. The testimony of one witness uncorroborated, unsupported, and in its details improbable, is not sufficient to establish the charge of adultery, against the full and explicit counter testimony of the person accused and her particeps criminis.</p> <p>5. It is not necessary that the offence should be proved in time and place as charged in the bill. The mind of the court must be satisfied that actual adultery has been committed, but if the circumstances establish the fact of general cohabitation, it is enough, although the court may be unable to decide at what time the offence was committed.</p> <p>6. Parol evidence of the declarations of a particeps criminis, even though he has confessed his guilt, is not competent evidence against the party charged with adultery.</p> <p>7. To establish the existence of adultery, the circumstances must be such as would lead the guarded discretion of a reasonable and just man to that conclusion. It must not be a rash and intemperate judgment, moving upon appearances that are equally capable of two interpretations.</p> <p>8. The facts proven must be such as can not be reconciled with probability and the innocence of the parties.</p> <p>•9. Mere imprudence, indiscretion, or folly, is not conclusive evidence of guilt. The mind of the court must be satisfied, that there was an intimacy between the parties entirely inconsistent with the duty which a virtuous wife owes to herself and to her husband.</p> <p>10. When the conduct of a party admits of two interpretations equally consistent with probability, the one involving guilt and the other consistent with innocence, the rules of evidence as well as the dictates of justice require that the interpretation should be favorable to innocence.</p> <p>11. In the investigation of a wife’s guilt, the conduct of the husband is always regarded as a most significant circumstance. So long as there is reasonable doubt of her guilt, or a plausible ground for a hope of her innocence, the husband’s forbearance is both excusable and laudable. But when the husband holds in his hands what he claims to be satisfactory proof of his wife’s guilt, his delay to prosecute is strong evidence in the wife’s favor.</p> <p>12. To prove adultery by circumstantial evidence, two points are to be established; the opportunity for the crime, and the will to commit it. "Whore both are established, the court will infer the guilt.</p>

<p>The case was heard upon bill and answer.</p>

<p>1. Where a contract is certain and fair in all its parts, and lor an adequate consideration, and the parly seeking its enforcement has held himself ready to perform it according to its terms, without default on his part and has been prompt in his application for relief, a court of equity will decree a specific performance of the contract, as a matter of course.</p> <p>2. It constitutes no objection to a decree for specific performance, that the application is mado to enforce the payment of the purchase money, and not to compel a delivery of the title.</p> <p>3. The doctrine is well established that the remedy is mutual, and that the vendor may maintain his bill in all cases where the purchaser could sue for a specific performance of the agreement.</p> <p>4. Mere pecuniary inability to fulfill an engagement does not discharge the obligation of the contract, nor does it constitute any defence to a decree for specific performance.</p> <p>5. Where the contract is not capable of being performed by reason of some difficulty inherent in the subjeet matter of the contract, a specific performance will not be decreed.</p>

The bill ia this cause was filed to foreclose two mortgages on certain real estate of the Rockaway Manufacturing Company. The main controversy was in regard to the validity and priority of sundry lien claims for labor and materials furnished in the erection and repairing of certain buildings on the mortgaged premises.

<p>1. This court has original jurisdiction in the matter of alimony, only where the husband without any justifiable cause abandons his wife, or separates himself from her, or refuses and neglects to maintain and provide for her.</p> <p>2. The abandonment or separation on the part of the husband, as well as the refusal to support the wife, must be charged in the bill and be sustained by the proof.</p> <p>3. The court will not grant a writ of ne exeat against the husband, or an injunction to restrain him from alienating his property, upon the mere apprehension of an abandonment.</p> <p>4. There may be a constructive abandonment or separation, while the parties continue under the same roof.</p> <p>5. While the parties continue to live together, no measure of unkind or harsh treatment, which will not constitute valid ground for a divorce, will entitle the wife to alimony.</p> <p>6. A bill for alimony independent of the statute, except as incidental to some other relief which may give the court jurisdiction, will not be entertained.</p>

<p>An insolvent debtor having been arrested in Virginia, and being in custody by virtue oí a capias ad satisfaciendum, petitioned for his discharge under the insolvent laws of that state, and having taken the oath of insolvency, and tendered and subscribed a schedule of all his property, real and personal, did further, in pursuance of the requirements of the insolvent laws of said state, and in order to his discharge as an insolvent, execute and deliver to the sheriff, by whom he was held in custody, a deed for certain real estate in New Jersey, described in said schedule. Upon a bill filed in this court to compel the execution of the trusts upon which the said deed was executed, Held—</p> <p>1. That a general assignment by a debtor, of all his real and personal property, under the insolvent laws of Virginia or of any other state, can pass no title to real estate m New Jersey.</p> <p>2. The deed to the sheriff, though absolute upon its face, was merely ancillary to the general assignment, burdened with the same trusts, and designed to carry the assignment into effect. Independent of those trusts, and of the provisions of the statutes of insolvency, the deed is without consideration and void.</p> <p>3. The deed is not merely fraudulent as against subsequent creditors, but it is illegal and inoperative as a transfer of title to real estate, and the trusts under it will neither be recognised nor executed by the courts of this state.</p> <p>4. This court will not administer trust funds created under the laws of another state, and growing out of the sale of real estate situate in New Jersey, in direct conflict with the laws of this state, to the prejudice of creditors residing here.</p>

<p>1. Where the executors of an executor have received and inventoried as part of the estate of their testator, a trust fund held by him at his death in the character of executor, and not as trustee, and have settled their final account jointly, they are jointly chargeable as executors, with the balance thus found to be in their hands.</p> <p>2. The rule appears to be, that if a part of the assets has been clearly set apart, and appropriated by the executor to answer a particular trust, he will be considered to hold the fund as trustee for the trust, and no longer as mere executor. This principle is applied to protect the interests of cestui que trusts.</p> <p>But how far it will avail to protect the executor or his representatives— Query.</p> <p>3. But where a fund is not treated by the executor as a trust fund, nor invested according to the provisions of the will creating it, but is used by him as his own property, or invested in the name of the executors of his testator, the estate of such executor is liable therefor, and passes into the hands of his executors charged with the payment of the trust fund. As executors, they are bound to account.</p> <p>4. Upon the death of one of several co-trustees, the office of trustee will devolve with the estate upon the survivor, and ultimately upon the heir or personal representatives of the last survivor. Trusts of real estate, upon t-lie death of the trustee, devolve upon his heir-at-law ; trusts of personalty vest in his executor or administrator.</p> <p>5. The probate of the will is conclusive evidence of the executor’s acceptance of the trust. It is not discretionary with the executor, whether he will or will not act as trustee. By accepting the office of executor, ho becomes ex-officio trustee in the stead of his testator, charged with all the duties and responsibilities of the office, and he will be decreed in equity to perform the trust.</p> <p>6. A.n executor has an undoubted legal right to leave the active administration of the estate to his co-trusteo, but neither by his tacit assent to the acts of his co-trustee, nor by the actual transfer of the legal title to the property, can he acquit himself of his responsibility.</p> <p>7. If a trustee, by his own negligence, suffers liis co-trustee to receive and waste the trust fund, when he has the means of preventing such receipt by the exercise of reasonable care and diligence, ho will be held responsible for the loss.</p>

<p>1. A deed of assignment endorsed upon a mortgage, though duly executed and acknowledged, passes no interest to the assignee, where the contract under which the assignment was executed, was never consummated, and the mortgage never delivered to the assignee.</p> <p>2. A party taking by assignment from the first assignee, with constructive notice of prior equities, will stand in no better position than his assignor.</p>

<p>1. Where the duty of a trustee is a matter of doubt, it is his undoubted right to ask and receive the aid and direction of a court of equity in the execution of his trust.</p> <p>2. The familiar principle of the common law, that in the creation of an estate by deed the word “heirs ” is necessary to pass the fee, has not been altered in this state by statute, nor has it been modified or relaxed by judicial construction. No synonym can supply the omission of the word “heirs,” nor can the legal construction of the grant be affected by the intention of the parties.</p> <p>3. An instrument conveying lands absolutely, not as security for money, nor to be held m trust for its repayment, but in lieu of it, is a deed. No subsequent event can convert it into mortgage.</p> <p>4. The heir-at-law of the testator, claiming a legacy under the will, and also claiming real estate as heir-at-law against the will, the will being inoperative as to real estate by reason of a defective execution, the heir will not be put to bis election, but will take both the legacy and the land. In such case the heir will not be required to give up the legacy, unless the legacy was bequeathed upon an express condition to give up the real estate.</p> <p>5. A husband and wife by deed of trust, conveyed the legal title to certain real estate to the trustee for life, and by the same deed in terms, constituted the trustee attorney irrevocable, in the name of the grantors, or either of them, in conjunction with the grantors, to convey the land.</p> <p>Held, that as respects the wife, the power as such was a nullity. She could not convey by letter of attorney.</p> <p>Also, that it can only serve as evidence of an intention on the part of the grantors, to confer upon the trustee a power of sale.</p> <p>Further, the trustee has no power of sale under the deed.</p>

<p>The case was disposed of upon final hearing upon the hill, answer and proofs.</p>

<p>1. The eleventh section of the “ act for the prevention of frauds and perjuries,” Nix. Dig. 330, requiring trusts to be in writing, in terms applies only to trusts of lands. It does not extend to trusts of personalty.</p> <p>2. A mortgage of land is a mere security for the payment of the debt, and is not a conveyance within the statute of frauds, so as not to be assignable without writing.</p> <p>3. A mortgage given to secure a debt to other persons than the mortgagee, operates as a resulting trust, by implication of law, in their favor, which is expressly excepted from the operation of the statute.</p> <p>4. Parol evidence, to raise an express trust upon the terms of a written instrument, is received with great caution, and must be very clear to warrant a court in establishing the trust.</p> <p>5. Whether a conveyance be fraudulent or not, depends upon its being made upon good consideration and bona fule. If it be defective m either particular, although valid between the parties and their representatives, it is void as to creditors.</p> <p>6. A denial by the answer of the existence of fraud, will not avail to disprove it, where the answer admits facts from which fraud follows as a natural and legal, if not a necessary and unavoidable conclusion.</p>

<p>. 1. It is no valid objection to a defenc > of usury, that the mortgage sought to be foreclosed was given lor a part of the purchase money upon a contract for the sale of land, and not for a technical loan of money.</p> <p>2. The taking of illegal interest, either upon a lending of money, or upon the forbearance of a debt, constitutes usury.</p> <p>3. The forbearance, or giving time for the payment of a debt, is in substance a loan.</p> <p>4. Where the contract upon its face is strictly legal, it will not be presumed that the parties had in contemplation an illegal stipulation.</p> <p>5. Where a debtor wilfully admits a greater liability than actually exists, or conceals the equity or defence on which he subsequently relies, such concealment or'admission will be absolutely conclusive m favor of an assignee, if acted on by him in accepting the assignment.</p>

<p>1. A bill filed to obtain satisfaction of a judgment at law is not demurrable on the ground of multifariousness, because it seeks to remove fraudulent conveyances and encumbrances, atid also to bring within the reach of the judgment, equitable interests which are not the subjects of execution at law.</p> <p>2. Where the case made by the bill is so entire, ihat it cannot be prosecuted in several suits, and yet each of the defendants is a necessary party to some part of the case as slated, neither of the defendants can demur for multifariousness or for a misjoinder of causes of action, in some of which he has no interest.</p> <p>3. Whore a judgment creditor files a bill in equity to obtain aid in enforcing the payment of his judgment at law, it is no ground of demurrer that other creditors, not in equal degree, are not made parties to the bill.</p> <p>4. A plea of another suit depending for the same cause in bar of a suit in equity, can only be of a suit depending in the same, or in some other court of equity.</p> <p>5. Where a suit is pending for the same cause in a court of law, all that the defendant can ash, is an order putting the complainant to his election, whether he will proceed at law or in equity.</p> <p>6. The complainant will not be put to his election, unless the suit at law is for the same cause, and the remedy afforded co-extensive and equally beneficial with the remedy in equity.</p>

The bill in this cause was filed by consent to settle the construction of the will of John E. Thomson, deceased. The question was as to the character of certain legacies therein given; whether general or specific.

<p>1. A court of equity ought not to enforce the specific performance of a contract for the purchase of land, under a sale which a competent tribunal had pronounced unauthorized and illegal.</p> <p>2. The judgment or decree of a court of general jurisdiction, upon a subject matter within its jurisdiction, is final and conclusive, and can never be questioned in a collateral suit.</p> <p>3. But where the order or decree is not an error of judgment, but an usurpation of power, it is not conclusive, and may be drawn in question in a collateral proceeding.</p> <p>4. A court of equity, in the exercise of its discretion, will not oompol a purchaser to accept a title depending upon an illegal and invalid sale, while it remains open to review, although the judgment unreversed might be conclusive upon the party’s rights.</p> <p>5. Time is not generally deemed in equity to be of the essence of the contract, unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract. Specific performance is frequently decreed, where the terms for the completion oí tho contract have not, in point of time, been strictly complied with.</p> <p>6. Where the time fixed for the delivery of a deed has passed and circumstances have materially changed, a vendee acting in good faith will not be compelled to accept a deed against his will, which he was ready and willing to accept at tho time fixed for the performance of the contract.</p>

<p>1. Objections relating to the regularity of a judgment at law, or to the validity of the instrument upon which it is founded, constitute no ground for the interference of equity.</p> <p>2. If the instrument upon which the judgment was entered, was without consideration or invalid, or if the judgment was unauthorized or illegal, the remedy for a party aggrieved is by application to the court in which it was entered, or by writ of error.</p> <p>3. A judgment can only be impeached in a court of equity for fraud in ite concoction, and not for fraud in the instrument upon which it is founded.</p> <p>4. A member or director of a corporation may make contracts with it, like any other individual, and when the contract is made, the director stands, as to the contract, in the relation of a stranger to the corporation.</p> <p>5. Corporations that have the power to borrow7 money, have also the necessary ¡lower, as well as the legal right, to give obligations for its repayment in any form not expressly forbidden by law. The fact that the security was given, and the judgment confessed to a director, cannot destroy its validity.</p> <p>6. A judgment confessed by a party on the eve of insolvency, without any view or expectation of obtaining aid to enable him to continue his business, affords strong evidence that it was done in contemplation of insolvency, and with the view of preferring creditors.</p> <p>7. In the distribution of the funds of an insolvent company, a judgment confessed in. contemplation of insolvency and with the view of preferring creditors, is entitled to no priority. The debt will be paid proportionably with the other debts of the company.</p>

<p>1. A bill in equity by the next of kin, for the distributive share of an estate in the hands of an administrator, will be sustained, where no decree for distribution has been made.</p> <p>2. The statutory remedy by suit at law for the recovery of a legacy or a distributive share of an estate is cumulative, and was not designed to limit or qualify the ancient jurisdiction of the court of equity over the subject.</p> <p>3. The Court of Chancery is not. deprived of its original jurisdiction in any case, either by the operation of .a statute conferring similar jurisdiction upon the common law courts, or by the adoption in those courts of the principles or practice of courts of equity.</p> <p>4. The court of equity has concurrent jurisdiction with the Prerogative Court over the administration of the assets of deceased persons.</p> <p>5. Unless for some special cause, a court of equity will not interfere with the ordinary jurisdiction of the Orphans Court in the settlement of the accounts of executors or administrators. Nor will it attempt to look behind such settlement, unless on the ground of fraud cr mistake.</p> <p>6. The retention by an administrator of the fund in his hands, mingled with his own funds and used for his own profit, will entitle the party beneficially interested in the fund to a discovery and an account, and to such decree as may be necessary to maintain and enforce the complainant’s rights.</p>

<p>1. Gross inadequacy of price in the absence of fraud, mistake, illegality, or surprise, is not sufficient to set aside a sheriff’s sale and conveyance under an execution at law.</p> <p>2. A court of equity will not afford relief where the complainant has been guilty of gross laches, or where the injury was caused by his own inexcusable negligence and inattention to his interests.</p> <p>3. A sheriff’s sale and conveyance will not be set aside where the property has been resold to a third party for a valuable consideration, without notice of the complainant’s equity. Where the equities are equal, the court will not interfere with the party holding the legal title, either for discovery or relief.</p>

<p>1. As a general rule, where the will is silent as to interest, a legacy bears interest only from the time it is made payable. But where a legacy to a child of the testator is made payable at a future day, and no maintenance in the meantime is provided for the legatee, the legacy bears interest from the death of the testator.</p> <p>2. Where the testator has expressly provided maintenance up to a certain period, leaving a chasm between that period and the time of the payment of the legacy unprovided for, interest will be allowed upon the legacy during such interval, by way of maintenance.</p> <p>3. Where the devisee of land charged with the payment of legacies, has furnished the legatees with support, though not in strict conformity with the requirements of the will, and such support was furnished and accepted as a substitute for the provision directed by the will, and was in fact more advantageous to the legatees than the interest on the legacies would have been, the period, during which such support was furnished, will be deducted from the time during which interest is allowed on the legacy.</p> <p>4. Where a testator, by his will, provides that his minor children shall receive their maintenance upon his homestead farm, so long as the devisees and their mother agree to continue upon it and support them there, if the children, without the consent of their mother and the devisees, leave the farm during the period for which the testator provided for their maintenance there, they can claim it in no other form; but otherwise, if they leave by constraint, and not from choice.</p> <p>5. Upon a bill filed to recover the inlerest of a legacy only, a decree cannot be made for the payment of the principal which has fallen due since the filing of the bill.</p> <p>6. Such decree is not within the special prayer for relief, and could not have been prayed for at the time of filing the bill. If relief is asked to which the complainant is not entitled, the bill is demurrable.</p> <p>7. Under the general prayer for relief, the relief granted must bo agreeable to the case made by the bill, and such as the case stated will justify.</p> <p>8. In a foreclosure suit if the mortgage is forfeited, and the complainant entitled to a decree of foreclosure at the time of the commencement of the suit, a decree for the whole amount due upon the mortgage, whether it becomes due before or after the filing of the bill, is strictly within the prayer for relief, and such as the case stated will justify.</p>

<p>1. Where the cause is heard upon bill and answer, the allegations of the answer are to be taken as true.</p> <p>2. A tenant for life is entitled to work a mine, quarry, clay-pit or sandpit, which has been opened and used by the former owner. It is a mode of enjoyment of the land to which he is entitled.</p> <p>3. A bill asking an injunction to restrain waste, and also an account for rent due, is demurrable on the ground of multifarionsness.</p> <p>4. When the title of cestui que trusts to the fund in question is involved, no decree will be made unless they are before the court.</p> <p>5. On final hearing, permission given to amend by consent, by adding necessary parties within ten days, and before signing the decree.</p>

<p>1. Though the delivery of a bill or note, either of the debtor or of a third party, ia not payment of a precedent debt, but merely suspends the remedy, yet il the holder be guilty of laches, it operates as a complete satisfaction.</p> <p>2. Where the note of a third party is endorsed by a mortgagor to the mortgagee, and is accepted by him as a conditional payment upon the bond, the mortgagor is entitled, as endorser, to a notice of protest or dishonor. If the holder of the note fail to give such notice, the mortgagor is discharged not only from liability as endorser, but also from liability pro tanto upon the bond.</p> <p>3. If such note be accepted as absolute payment on the bond, and the payment of the note be guaranteed by the mortgagor, the guaranty will not restore the obligation. The mortgagor would be liable on his contract of guaranty, but his indebtedness upon the bond and mortgage would not be revived.</p> <p>4. Gross laches and long delay on the part of the complainant in a simple foreclosure case, in commencing and prosecuting his suit, is unjust and oppressive to the defendant, and is a strong circumstance against the justice of the complainant’s claim.</p>

<p>1. Cestui que trusts are not, it seems, necessary parties to suits against trustees, to compel tbe specific performance of contracts, except where some question arises touching the power of the trustees to execute the contract, or their authority to act under it.</p> <p>2. But where a bill in equity involves the title of the cestui que trusts to the property in dispute, or where they are interested, not only in the fund or estate respecting which the question at issue has arisen, but also in that question itself, they are necessary parties.</p> <p>3. An objection for want of proper parties taken at the hearing will not prevail, unless such parties are necessary to the final determination of the cause.</p> <p>4. The general principle is, that where the contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the olher. But the principle does not apply where the contract, by its terms, gives to one party a right to the performance, which it does not give to the other.</p> <p>5. Where the obligation to perform rests upon one of the parties only, equity will enforce the contract with great caution.</p> <p>6. An agreement for the sale of land at a price to be ascertained by the parties, is too incomplete and uncertain to be carried into execution by a court of equity. But where the contract is, that land shall be conveyed “ at a fair price,”' or “ at a fair valuation,” the court will direct the valuation to be made by a master, and will enforce the execution of the contract.</p> <p>7. The true principle seems to be, that whenever the price to be paid can be ascertained in consistency with the terms of the contract, performance will be enforced. But the court will not make a contract for the parties, nor adopt a mode of ascertaining the price not in accordance with the spirit of the agreement.</p> <p>8. A mere personal contract, not running with the land, nor binding the alienee at law, will be enforced against the alienee in equity, only where he is chargeable with notice of the contract.</p> <p>9. Where the defendant claims title through a deed which contains the covenant sought to be enforced, he is chargeable with constructive notice of the covenant.</p> <p>10. Notice of a deed is notice of its contents, and where a purchaser cannot make out a title but by a deed which leads him to another fact, he will be deemed to have knowledge of that fact.</p> <p>11. Constructive notice is knowledge imputed on presumption, too strong to be rebutted, that the knowledge must have been communicated.</p> <p>12. Where the covenantee in a contract for the conveyance of land, permits a purchaser to acquire title, take possession of the premises, and pay the purchase money without an intimation of his claim under the covenant, or of his willingness to accept the title, he has no claim to relief in equity.</p> <p>13. Specific performance is relief which equity will not give, unless in cases where the parties seeking it, come as promptly as the nature of the case will permit.</p>

<p>1. Where the canse is hoard upon hill and answer, the answer must he taken as conclusive proof of the facts which it sets up by way of defence. But intentions and motives are not facts, touching which the answer is conclusive.</p> <p>2. Where a wife takes the title to land, purchased with the property of the husband, under circumstances which render the transaction fraudulent as against the husband’s creditors, she will be treated as a trustee for the creditors, and the property will be sold for their benefit.</p> <p>3. The legal title to land is not affected by a sheriff’s deed, where, at the time of the levy and sale, the title was not in tlie defendant in execution.</p> <p>4. The existence of fraud is often a presumption of law from admitted or established facts, irrespective of motive, and too strong to be rebutted. A voluntary settlement on tlie wife by a husband while engaged in business, and involved in debt, is fraudulent as against creditors, no matter bow pure the motive which induced it.</p> <p>5. The right of the husband to the services of his wife, and to the avails of her skill and industry, is absolute. The wife can acquire no separate property in her earnings, though she carry on business in her own name, except by gift from her husband.</p> <p>6. A settlement by the husband upon tlie wife, in consideration of meritorious services, is a pure gift or voluntary settlement, and though good as against the husband, can only be sustained against his creditors by virtue of an antenuptial contract.</p> <p>7. If a party is indebted at the time of a voluntary settlement, it is presumed lo bo iraudulent in respect to such debts, and no circumstances will permit those debts to be affected by the settlement, or repel the legal presumption of fraud.</p> <p>8. The distinction between existing and subsequent debts, in reference to voluntary conveyances, is, that as to the former, fraud is an inference of law ; as to the latter, there must be proof of fraud in fact.</p> <p>9. The act of 1852, for the better securing the property of married women, confers upon the Wife a mere jus tenendi. It gives her no power to dispose of her property.</p> <p>10. The land having been purchased with the money of the husband, there is a resulting trust in his favor. The wife will be declared a trustee for the husband, for the benefit of his creditors.</p>

<p>1. A defendant cannot pray anything in his answer but to be dismissed the court. If he has any relief to pray, or discovery to seek against the complainant, he must do so by cross-bill.</p> <p>2. An answer to a bill to foreclose cannot draw in question the fairness and validity of a sale, the purchase money -whereof the mortgage was given to secure, or impeach the contract on which the title of the mortgagor is founded. These matters can only be drawn in question bv cross-bill.</p>

<p>1. An answer to a bill for divorce on the ground of desertion, which sets up as a defence a general and vague charge of cruelty on the part of the husband, without specifying any act of cruelty, or making any .statement from which it can bo discovered in what the cruelty consisted, is radically defective.</p> <p>2. The defendant is bound to state in his answer all the circumstances of which he intends to avail himself by way of defence, and to apprise the complainant m a clear and unambiguous manner, of the nature of the case be intends to set up.</p> <p>3. Evidence must be confined to the issue made by the pleadings, and all evidence in support of totally distinct facts from those relied upon in tlie bill or answer, is irrelevant, impertinent, and inadmissible.</p> <p>4. Under general allegations particular instances may be proved, but in such cases the general charge must bo of such precise and definite character, as to apprise the adverse party of the nature of the evidence to be introduced.</p> <p>5. A court oi equity will not deprive á defendant of his defence upon a mere technicality of pleading, when its admission aifects prejudicially no right of the complainant.</p> <p>6. The conduct which will justify the wife in abandoning her husband, must be such as would constitute a ground for divorce or alimony.</p> <p>7. The mere separation of husband and wife does not constitute desertion within tlie meaning of the statute. To constitute desertion, the wife must absent herself from her husband of her own accord, without his consent and against his will.</p> <p>8. A bill will not lie for divorce on the ground of desertion, where the parties are living apart under articles of separation or by mutual agreement, and where the party seeking it has not expressed a desire to terminate the agreement.</p> <p>9. A voluntary agreement between husband and wife to live separate, constitutes no bar to an action, by either of the parties, for a restitution of marital rights. Nor does it operate in the eye of the law, as a release of either of the parties from their matrimonial obligations.</p>

This was an application by a creditor of an insolvent corporation, to be let in to prove his claim before the receivers.

<p>1. An undue concealment of a fact to the prejudice of another, which one party is bound in conscience and duty to disclose to the other, and in respect to which lie cannot innocently be silent, constitutes a fraud against which equity will relieve.</p> <p>2. In all transactions between partners, and all parties occupying towards each other a fiduciary character, the law requires the utmost degree of good faith.</p> <p>3. If a partner who superintends the business and accounts of the concern, by concealment of the true state of the accounts and business, purchases the share of another partner for an inadequate price, the purchase will be held void, and the purchaser compelled to account for the real value.</p> <p>4. Nor does it affect the case that the alleged concealment is charged to have been practiced by one partner only, and that the others were ignorant of tiio fact concealed. The principle applies, whether the fraud was perpetrated by the party directly interested, or by an agent. The principal by seeking to retain any benefit resulting from the transaction, becomes part.ice.ps cr'rmmis, however innocent of the fraud in its inception.</p> <p>5. Equity will relieve against a contract made under a mistake, or ignorance of a material fact; not only where there has been a concealment of facts by one party, but also in cases of mutual mistake or ignorance of facts.</p> <p>6. To constitute a fraud or mistake for which equity will relieve against a contract, it is essential that tlio fact misrepresented or concealed be material. It must either affect the substance of the contract, or the value of the thing bargained for ; or be sut'li as induces the party aggrieved to pay more, or accept less, for the thing bargained for, than its real value.</p> <p>7. Equity will not grant relief against a contract on the ground of mistake, when the mistaken fact did not operate as an inducement to enter into the contract.</p>

<p>The cause was heard upon the bill, answer, and proofs.</p>

<p>1. A court of equity has the power to aid a judgment creditor to reach the property of his debtor, cither by removing fraudulent judgments or conveyances which obstruct the plaintiff’s remedy under the judgment, or by appropriating in satisfaction thereof, rights or equitable interests of the defendant, which are not the subject of legal execution.</p> <p>2. If a creditor seeks the aid of this court against the real estate of his debtor, he must show a judgment at law creating a lien on such estate; if he seeks aid in regard to the personal estate, he must show an execution giving him a legal preference or lion on the goods and chattels.</p> <p>3. To reach an equitable interest of the debtor, the creditor must first have taken out execution at law, and have required it to be levied or returned, so as to show a failure of his remedy at law. Equity will only grant its aid to enforce legal process, when it appears that the legal remedy of the complainant is exhausted.</p> <p>4. A creditor at large, or before judgment having no specific lien on his debtor’s property, is not entitled to the interference of equity, by injunction, to prevent the debtor from disposing of his property in fraud of his creditor.</p> <p>5. An attaching creditor, having a lien upon the property of his debtor by authority of the statute, prior to the recovery of judgment, is entitled to the aid of a court of equity to enforce his legal right.</p> <p>6. If the court, where judgment is recovered, have jurisdiction of the person of the defendant, and of the subject matter of the suit, its conclusiveness cannot be questioned in the forum of another state where it is sought to be enforced.</p> <p>7. A trust deed by the husband for the benefit of the wife, purporting to he given to secure certain funds received from the wife, but where no such funds were actually received by the husband, is fraudulent and void as against creditors.</p> <p>8. The filing of exceptions to an answer, constitutes no technical objection to the dissolution of an injunction. The court will look into them merely to ascertain whether they relate to the points of the bill upon which the injunction rests.</p>

<p>1. It is within the power of a court of equity to consolidate actions, with or without the consent of the complainants.</p> <p>2. The order for consolidation is not of right, but is matter of discretion, and upon such terms as the court may direct.</p> <p>3. Where a guardian has failed to account as required by law, and sets up a prior account as a bar to accounting in this court, and a decree for an account is made, the complainant will be allowed costs up to the decree.</p> <p>4. A party in interest having died since the argument, and before the signing of the decree, the decree and orders in the cause should be signed and filed as of the date of the argument.</p> <p>5. An order for that purpose is necessary.</p>

<p>1. Where the sole design of the bill is to have the individual property of one partner, alleged to have been fraudulently conveyed awa,y by him, applied in satisfaction of a judgment against the firm, another partner from whom no discovery is sought, and against whom no relief is prayed, is neither a necessary nor a proper party.</p> <p>2. A wife is a proper party to a bill filed to set aside conveyances of the husband's property made to her, or in which she has joined, and which are charged to have been voluntary and fraudulent as against creditors of the husband.</p> <p>3. It is no cause of demurrer to a hill to set aside fraudulent conveyances made by a debtor, that a defendant, to whom part oi the property has been conveyed, has no connection with other fraudulent transactions of the debtor. If the defendant is a necessary party to some part of the ease as stated, he cannot object that he has no interest in other transactions constituting a part of the entire case.</p> <p>4. A bill filed by an execution creditor is not demurrable for multifariousness because it seeks to set aside fraudulent conveyances, and at the same time to reach other property of the debtor, which is not the subject of execution at law, and respecting which a discovery is prayed.</p> <p>5. The transactions charged, being parts of a series of acts all tending to to defeat the plaintiff’s remedy at law, may properly be united in the same bill.</p> <p>6. A joint execution upon a judgment for a partnership debt, may be executed not only against the partnership property, but against the separate estate of each partner, for each is answerable for the whole, and not merely for his proportionate part of the debt.</p> <p>7. A court of equity will protect and enforce the legal right of an execution creditor at law to levy upon the separate property of each partner of a firm.</p> <p>8. To entitle an execution creditor to relief, it must appear by the bill that he has exhausted his remedy at law, and that the aid of this court is necessary 1o enable him to obtain satisfaction of his judgment.</p> <p>9. The return of the sheriff that the defendants are not, either in their partnership name or as individuals, seized or possessed of any estate, real or personal, which could be seized or taken by virtue of the execution, must be taken as prima facie evidence of the fact, and is sufficient to give the complainants a standing in this court.</p> <p>10. Certainty to a common intent is all that is ordinarily required in pleadings in equity.</p>

<p>1. A commission under -which a party has been found an habitual drunkard, will not be superseded upon a hearing without notice, nor upon ex parte affidavits, even with the assent of the guardian.</p> <p>2. The practice in proceedings to supersede a commission, in cases of habitual drunkenness, should be substantially the same as in cases of lunacy.</p> <p>3. The truth of the facts alleged in the petition may be examined either in open court or before a master. Proceeding by reference to a master adopted as the most convenient, safe, and expeditious course.</p>

This cause was originally argued upon a motion for a preliminary injunction upon bill, answers, and affidavits. On the 12th of August, 1862, the preliminary injunction was refused upon grounds then succinctly stated by the Chancellor.* bio further proceedings were had in the cause until the 9th of June, 1863, when leave was given to the complainants to file their replication to the answers of the defendants to the original bill, and also to file a supplemental bill.

<p>1. The power to sell land for the payment of taxes, is a naked power, not coupled with an interest, and must be exercised in strict accordance with the provisions of the statute. Every prerequisite to the exercise of the power must precede it.</p> <p>2. To establish a title under a sale for taxes, it is incumbent on the purchaser to show that all the prerequisites to the exercise of the power of sale have been complied with. The deed is not even prima facie evidence of that fact.</p> <p>3. It is essential to the validity of a sale of land, under the " act to make taxes a lien on real estate in the county of Passaic, and to authorize the sale of the same for the payment thereof,” (Pamph. L., 1852, p. 247,) that it should appear that the tax was assessed on account of the property sold.</p> <p>4. The recital of the tax warrant, “ whereas it appears to the mayor and aldermen of the city of Paterson, that an assessment of four dollars and fifty cents of taxes, &c,” is not legal evidence of the fact of an assessment, nor of demand of payment.</p> <p>5. The assessment itself is the only competent and legal evidence of the fact of an assessment.</p> <p>6. Where the tax warrant directs a sale to be made to raise a sum larger than the whole amount due, it is a clear excess of authority, and renders the warrant, so far as it affects the land in question, null and void.</p> <p>7. Even if all the requirements of the statute had been strictly complied with, so as to confer upon the purchaser at such sale a valid title against the heirs of the former owner, and all claiming under them, a prior mortgage given by tlieir ancestor would not thereby have been extinguished.</p> <p>8 The phrase owner or owners {Nix. Dig. 853, § 77, and Panyph. L., 1852, p. 249, \ 7,) was used to denote the owner of an estate in possession at the time of the assessment, and not a prior owner, or the owner of an estate m expectancy, or of any executory or contingent interest, and the design of the act was to make the interest of such owner only, and those claiming under him, liable for the tax assessed.</p> <p>9. The right of a mortgagee is not defeated by a tax sale, where the mortgage was not given by those who wore owners of the land at the time of the assessment, or against whom the tax was assessed, but is a title paramount to theirs. Such mortgage is a valid and subsisting encumbrance upon the land in the hands of the purchaser at the sale.</p>

<p>1. In an application for alimony pendente lite, the case must ho taken most strongly against the petitioner. The burthen of proof is upon her.</p> <p>2. All the facts upon which an order for alimony is founded, must be proved. The order must not rest upon more presumption or conjecture.</p> <p>3. Where the circumstances upon which a proper adjustment of alimony materially depends, do not appear in tho petition, a reference to a master will be ordered, to ascertain the real facts of the case.</p> <p>4. Under the special circumstances of this case, the question was disposed of upon the facts stated in the petition, without a reference.</p>

<p>1. A general allegation in a bill for divorce, that the defendant within a specified time has committed adultery, is insufficient. The party with whom the crime is believed to have been committed, must be named; or if unknown, an averment to that effect is necessary.</p> <p>2. The charge must bo so full and specific shat the party charged may know what he is called on to answer. It should state the lime when, the the place whore, and if known, the person with whom the offence was eommided. It is not necessary to state the day, hut the month and year should he stated.</p> <p>3. Ati averment that the statements contained in the bill are made upon information and belief', constitute no ground of demurrer.</p> <p>4. A bill praying a discovery from the defendant, whether since her marriage she has not committed adultery with any person whatever, and with whom, and at what time and place, and under what circumstances, is demurrable. The rule is, that the defendant is not bound to accuse himself of a crime, or to furnish any evidence whatever which shall lead to an accusation of that nature. And the objection lies to a particular interrogatory, though the bill be in other respects unexceptionable.</p> <p>5. Under a general demurrer for want of equity, no objection for want of form can properly be raised. A demurrer must express the several causes of demurrer.</p> <p>6. Demurrer overruled, with leave to amend by stating the grounds of demurrer within twenty days, unless the complainant within that time, shall amend his bill in tne particulars objected to.</p>

<p>1. At common law personal estate is the primary fund for the payment of debts, and the heir-at-law may call upon the executor to exonerate the land by discharging the mortgage debt out of the personal estate. The devisee stands in the same position as the heir, and is entitled to the same equity.</p> <p>2. But the mortgagee, or alienee, of the heir or devisee, has no such equity. The principle is adopted in favor of the heir or devisee alone, and not in favor of his alienee.</p> <p>3. Where a mortgagor has from time tb time aliened certain portions of the mortgaged premises, that portion not aliened will be first soLl to satisfy a decree of foreclosure and sale; if such sale do not bring sufficient to satisfy the decree, then the parcel last aliened will be sold, and so on in the reverse order of the conveyances, until the decree is satisfied.</p>

<p>1. Whore a party negotiates with another’s agent for tlie loan of a sum of money, and delivers to the agent a bond and mortgage duly executed to the principal, but the whole amount of money is not paid over to the mortgagor by the agent; in such case, if the principal settle with the administrator of his agent, and accepts the securities as evidence of so much money advanced by the agent, and allows the amount in the settlement of the account, the mortgagor is estopped, as against the principal, from denying that he received the money.</p> <p>2. If the money were not paid over by the agent to the mortgagor, and he designed to look to the mortgagee, he should have given notice of such intention. By failing to do so, and permitting the settlement to be made, he is estopped from making any claim against the mortgagee.</p> <p>3. The principal is not liable for the unauthorized or wrongful act of his agent in withholding a part of the money, or in giving his own notes payable at a future day, in lieu of the money of the principal in his hands. The remedy is against the agent only.</p>

<p>Isaac Rowe, by his last will and testament, gave as follows: “ I give and devise unto Sarah White the sum of $5000, to bo paid unto the said Sarah While and if the said Sarah White die without an heir or heirs, the said sum of $5000 is to go to Leonard Crum, the son of Henry Crum.” Held—</p> <p>The first legatee takes a present vested interest in the fund, liable to be divested upon the contingency of her dying without issue. The limitation over, being upon a definite failure of issue, is good by way of executory bequest.</p> <p>1. In the case of a specific bequest of chattels for life, and a limitation over by way of remainder, the legatee in remainder is no longer entitled, as formerly, to call upon the tenant for life for security that the chattels shall be forthcoming after his decease. The recognized practice of the court now is, to require an inventory to be signed by the devisee for life, and to be deposited with the master for the benefit of all parties.</p> <p>2. Personal properly not given specifically but generally, or as a residue of personal estate, must be converted into money ; the interest only to be enjoyed by the tenant for lile, and the principal reserved for the remainderman. This rule prevails, unless there be in the will an indication of a contrary intention.</p> <p>3. Where a legacy is given generally, subject to a limitation over upon a subsequent event, the divesting contingency will not prevent the legatee from receiving his legacy at the end of a year from the testator’s death, and lie is not bound to give security for repayment of the money in case the event should happen.</p> <p>4. In the case of a legatee for life, or subject to a limitation over, in order to justify the requisition of security from the first legatee, there must be danger of the loss of the property in the hands of the first taker.</p> <p>5. The mere fact that the legatee for life is a feme covert, cannot in itself furnish any evidence of danger of loss.</p> <p>6. A bill for relief on the ground of danger of loss of a legacy for life, subject to a limitation over by way of remainder, is in the nature of a bill quia timet, and may be filed as well against the executor himself, where the fund is m his hand, as against the legatee for life, where the fund is in Ins hand.</p>

<p>1. To entitle a party to an injunction, liis title to tlie property and rights claimed by him, and for the protection of which he asks the interposition of the court, must appear in a clear and satisfactory manner.</p> <p>2. The making and filing of the survey required by the 5th section of the act incorporating the “ Morris Canal and Banking Company,” (Pamph. L., 1824, p. 160,) is a necessary prerequisite to the taking of any lands under the powers given by the charter.</p> <p>3. Ii is an established rule m the exposition of statutes, that the intention of the legislature is to be derived from a view of the whole, and of every part of the statute taken and compared together. The real intention, when ascertained, will prevail over the literal sense of terms. When words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the remedy in view; and the intention is to be taken or presumed, according to what is consonant to reason and good discretion.</p> <p>4. As a rule of construction, the legislature ought to be considered as intending to grant, by a charter of incorporation, such powers only as are necessary or useful to the end or object which they had in view in creating the corporation. They ought not to be understood as granting anything more, unless the intention to do so is plainly expressed, or beyond a doubt.</p> <p>5. In public grants the grantee can take nothing not clearly given him, by the grant. In cases of doubt, the grant is construed in favor of the state and most strongly against the grantee.</p> <p>6. The third section of the “ act to incorporate the Associates of the Jersey Company,” (Pawph L., 1804, p. 370,) enacts as follows : “ That the said Associates shall have the privilege of erecting or building any docks, wharves, and piers, opposite to, and adjoining the said premises in Hudson river, and the bays thereof, as far as they may deem it necessary for the improvement of the said premises, or the benefit of commerce, and to appropriate the same to their own use.” Held, that this section merely gave the Associates a privilege or license to build docks, wharves, and piers, in the waters of the Hudson river, and the bays aforesaid, in the manner therein mentioned, and when so built, to appropriate them to their own use, and conferred upon them no power to transfer or convey such privilege or license to any other corporation. Held further, that the land not so occupied and built upon was not granted to the Associates, and that the same and all rights in and over it remain in the state as before.</p> <p>7. This court will not interpose by injunction to prevent an apprehended injury, which is not irreparable, and which is capable of compensation in damages.</p> <p>8. An injunction should only be issued in cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, and the injury be impending or threatened, so as to be averted only by the protecting, preventive process of injunction.</p>

Upon filing the bill an injunction issued pursuant to the prayer thereof. The defendants having answered, now move to dissolve the injunction. The cause was heard before James Wilson, esquire, one of the masters of the court, upon the bill and answer.

<p>A agreed to convey to B a tract of land for $500. B applied to 0 for a loan of that amount. 0 agreed to loan B $550 upon iiis giving a mortgage upon the said tract for $850, with interest at seven per cent. Upon agreement between the partios, A executed a deed to B for the land for the nominal consideration of $850; B giving A a bond and mortgage for that amount. A assigned the mortgage to C in pursuance of the agreement for $550; $50 in cash to be paid to B. Of this amount nothing was actually paid to B. Upon a bill to foreclose, filed by 0, to recover the nominal consideration of $850, Held—</p> <p>1. The transaction, though in form a sale and mortgage for $850, in reality was a sale and mortgage for $500.</p> <p>2. The mortgage was not usurious. It was made for a legitimate purpose, though for a larger amount than was really due. There being ns usury in the inception of the contract, no subsequent transaction can render it usurious.</p> <p>3. The complainants are entitled to the $500, actually advanced by them to the mortgagee. The contract by which they claim $350 beyond that amount was usurious, and cannot be enforced. Under such circumstances, the mortgage will be deemed a security for the amount actually advanced.</p>

<p>1. Whore there is uncertainty as to the extent of the responsibility of a party from whom rent is sought to be recovered, a court of equity will maintain jurisdiction of a suit for its recovery.</p> <p>.2. A bill is not demurrable for want of proper parties, when all the persons whose rights are to be affected by the decree are joined.</p> <p>3. A change in the ecclesiastical relation of a church for whose benefit property is held in trust, does not necessarily involve any perversion of the trust, or diversion of the fund from its legitimate purpose.</p> <p>4. An obj ection to a suit that the amount involved is too trivial to j ustify the court in taking cognizance of it, may be taken advantage of by special motion to dismiss the bill, or the court may of its own motion at the hearing, order the bill to be dismissed.</p> <p>5. If a snit have no other object than the mere recovery of a sum of $1.75, the bill will be dismissed; but if it seeks to establish a right of a permanent and valuable nature, it falls within the recognized exceptions to the general principle, and the court will maintain jurisdiction.</p>

The bill in this cause was filed to foreclose a chattel mortgage. The subpoena was issued before the filing of the bill, but no notice was taken of the irregularity, and the cause was allowed to proceed to final decree and execution. The defendant now asks to set aside all the proceedings in the cause, on the ground that the subpoena was issued and served before the bill was filed.

Tlie complainant., by ber bill, alleges that her husband, Hugh McGee, in his lifetime, was seized in fee of a parcel of land in Jersey City, which, on a map of the lands of Cornelius Van Vorst, filed in the clerk’s office of the county of Hudson, on the 24th of April, 1847, was known and distinguished as lots numbered twelve and thirteen, on block sixty-three, fronting on the northerly side of Eailroad avenue, and being fifty feet wide in front and rear, subject to a…

<p>1. A party who comes into a court of equity for relief against a judgment or other security, on the ground of usury, will only be relieved upon paying what is really due upon such security.</p> <p>■ 2. Where a party, as security for money loaned, has taken an assignment of a pre-existing judgment against the borrower, and, as a further security for the same debt, has also taken a bond and mortgage ; a decree of this court declaring the bond and mortgage usurious and void, will not avail the debtor in a bill for relief to have the judgment declared satisfied of record, the assignment being untainted with usury.</p> <p>3. The evidence of a co-defendant is not rendered incompetent by the fact that no order was made for his examination. Since the act of 1859, (Nix. Nig. 928, | 34,) removing the disqualification of interest in a witness, as a party or otherwise, no order for his examination is necessary.</p> <p>4. Nor is it any objection to the competency of a co-defendant to testify, that he has not answered the bill, but has suffered a decree pro oonfesso against him. The complainant may, at his discretion, require him to answer. But if he do not, the defendant, by failing to answer, cannot deprive his co-defendant of his testimony, or disqualify himself as a witness in the cause.</p>

<p>L Upon a bill for an account, the only material evidence upon the original hearing, is that which conduces to prove the complainant’s right to an account. The ordinary decree is that an account shall be taken. Evidence as to the particular items of the account is irrelevant, and, in strictness, inadmissible at this stage of the cause.</p> <p>2. As a general rule, the court will not, at the original hearing, examine or decide whether particular items of the account shall or shall not be allowed.</p> <p>3. The court must, it would seem, settle the construction and effect of agreements between the parties, by which their mutual dealings were regulated, and by which, consequently, the account must be controlled.</p> <p>4. The court will give special directions to the master as to the manner of taking the account, and the principles by which he should be governed in taking it.</p> <p>5. The decree must direct to what matters the account shall extend, and in decreeing a general account, special directions will be rendered proper and necessary by the particular circumstances of the case.</p> <p>6. Where the evidence has been taken on both sides before the hearing, without objection, it may be used by the court, so far as may be necessary, in. giving directions.</p>

<p>1. A direction by a testator “that all the rest and residue of his estate of what kind soever there might be at the time of his death,” should be converted into money by his executors, &c., extends to and includes such real estate as he may have acquired after the making of the will, and such land is subject to the power of sale conferred upon the executors.</p> <p>2. Until the sale be made, the legal title descends to and vests in the heirs-at-law of the testator, as tenants in common.</p> <p>8. The heir-at-law takes the legal title charged with the trusts created by the will. Equity will not interfere with the execution of the trusts by the executors. It regards as actually performed, that which is directed to to be done.</p> <p>i. Lands directed by the testator to be sold and converted into money, and the proceeds distributed either among the heirs or other legatees, is regarded as a gift of money.</p> <p>5. Where the Whole beneficial interest in the land directed to be converted into money, belongs to the person or persons for whose use it is given, equity Will not compel the trustee to execute the trust against the wishes of the cestui que trust, but will permit him to take the land, if he elect to do so before the Conversion has actually been made. But where there are several cestui que trusts taking different interests under the will from what they would do as heirs-at law, there is no case for the, application of the doctrine of election, and the executor must perform the trust created by the will.</p>

<p>1. If a mortgagee in possession, permits the mortgagor to take the profits of the mortgaged promises, the mortgagee will be charged, in favor of subsequent encumbrancers, with all the profits he might have received. So, if the mortgagee refuses to enter, but suffers the mortgagor to take the profits and to protect his possession by means of the mortgage.</p> <p>2. The principio upon which the court acts is, that if the mortgagee be in possession, or act mala fide m regard to subsequent encumbrancers, he will he charged not only with all profits received, but with all which, without fraud or wilful default, he might have received from the mortgaged promises.</p> <p>3. Where the mortgagee is not in actual possession by himself or his tenant, and has received no part of the profits, nor used his mortgage to interfere with the claims of subsequent encumbrancers, or to protect the possession of the mortgagor, he is not chargeable with any part of the profits.</p> <p>4. A suit' for foreclosure upon each of two mortgages covering the same premises, both of which were in the hands of the complainant when the first bill was filed, is unnecessary and oppressive, and costs will be allowed but in one suit.</p> <p>o. But where the second bill was rendered necessary by the fact (discovered after the filing of the first) that the mortgage, upon which the first bill was filed, covered a part only of the premises included in the other mortgage, proceedings in the first suit will be stayed, and the second suit alone proceed to decree.</p>

<p>1. A lunatic can sue only by his committee or guardian, who is responsible for the conduct of the suit, or by the Attorney General or next friend, where the interests of the guardian clash with those of the lunatic.</p> <p>2. If a complainant appear upon the face of the bill to be a lunatic, and no next friend or committee is named in the bill, the objection may be raised by demurrer, or by motion to take the bill from the files.</p> <p>3. A bill exhibited by a person of unsound mind should be taken from the files.</p> <p>4. The bill in this cause having been filed by a lunatic, and the defendant having demurred, leave was given to withdraw the demurrer, and bill ordered to be taken from the files.</p>

<p>1. Where there is a general bequest for life with remainder over, the whole property must be sold and converted into money by the executor, the proceeds invested, and the interest only paid to the legatee for life. The rule prevails, except there is an indication of an intention on the part of the testator, that the legatee for life should receive the property bequeathed.</p> <p>2. The circumstance that a bequest of general personal estate is in the same sentence, with a devise of the real, will not make the legacy specific.</p> <p>3. The well settled rule in equity is, that where it appears that there is danger that the principal of the legacy will be wasted or lost, the court will protect the interest of the legatee in remainder, by compelling the legatee for life to give security for the safe return of the principal.</p> <p>4. Under like circumstances, the executor himself will be required to give security for the safety of the fund.</p>

Tlio bill in this cause was filed to restrain the defendant from the commission of certain acts, alleged to bo in violation of an agreement with the complainants, and to compel a specific performance of the agreement. An injunction was issued pursuant to the prayer of the bill. The defendant having answered, now moves to dissolve the injunction.

<p>1. The general rule is, that where a part of the mortgaged premises has been aliened by the mortgagor and a part retained by him, the part retained, as between the mortgagor and his alienee, is primarily chargeable with the debt.</p> <p>2. The real question in such cases must always be, who, in equity, is bound to pay the debt? The debt is due from the mortgagor to the encumbrancers, and his portion of the mortgaged premises must primarily bear the burden, unless it be shown that it has, by some means, been shifted upon the portion of the alienees. This fact it is incumbent upon the mortgagor to establish</p>

<p>1. A commission of lunacy may issue where the alleged lunatic is an infant.</p> <p>2. The issuing of a commission of lunacy rests in discretion.</p>

<p>1. Where the alleged lunatic is in an asylum, the commission should be executed in the county where his mansion and estate are, or where he last resided before being sent to the asylum.</p> <p>2. It is not absolutely necessary that the alleged lunatic should be before the jury. A commission may issue where he is a non-resident, or temporarily absent from the state, and where it is impossible for the jury to see him.</p> <p>3. If necessary, the court will order the party having the alleged lunatic in charge, to bring him before the jury.</p> <p>4. Where the estate of the lunatic is small, the court will, it seems, in order to avoid inconvenience and expense, order the commission to issue to a different county from that in which he resides.</p>

This case came before the Ordinary on an appeal from the decree of the Orphans Court of the county of Essex. The appellant, a creditor of the estate of David D. Tingley, had presented his claim to the executrix, not under oath. The claim was not reported to the court., An application was made to compel the executrix to report the claim.

<p>1. Evidence taken under an order of the Prerogative Court to be used upon the hearing of an appeal, is competent.</p> <p>2. It is no valid objection to a decree of distribution, that it is made in favor of parties who are not applicants therefor, and whose shares have been satisfied or released.</p> <p>3. The decree of distribution is final and conclusive between the administrator and the distributees, as to the amount of each share, and the party entitled to receive it. It is an effectual protection to the administrator, against all claims for moneys paid pursuant thereto, though it should prove that the decree was erroneous, and the money paid to a party not entitled.</p> <p>4. The remedy by a party deprived of his rights by the decree, is not against the administrator, but against the distributees who have wrongfully received the estate. In their favor, as against the rightful claimant, the decree does not operate.</p> <p>5. It is no part of the office of a decree of distribution, to settle whether the share has been paid, in whole or in part, or whether the legal or equitable interest in the iund may have been assigned. Its office is simply declaratory of the rights of the legal representatives or next of kin in the estate of the intestate.</p> <p>6. The question, whether an administrator has actually paid a claim under the order of distribution or not, can only be properly tried by suit.</p> <p>7. But no action can be brought by the claimant, until the decree of distribution is made. The decree, it would seem, must of necessity be made, in order that the right may be properly tried and decided.</p> <p>8. The decree upon the final settlement and allowance of administrator’s accounts, is final and conclusive upon all parties interested. It ascertains and declares the net balance in the administrator’s hands, and the sum for which he must account to the distributees.</p> <p>9. The order for distribution may be made at the instance of the administrator, or of any one of the distributees. If made at the time of the settlement, no further notice is necessary.</p> <p>10. A separate decree cannot be made at the instance of each of the claimants.</p> <p>11. One decree only, can protect the administrator.</p>

This case came before the Ordinary on appeal from a decree of the Orphans Court of the county of Bergen. Enoch J. Vreeland, the intestate, died May 4th, 1861, leaving him surviving, his wife, Sophia Vreeland, but no children. Eleanor Vreeland, one of the appellants, is his sister, and only next of kin.

<p>This case came before the Ordinary on appeal from a decree of the Orphans Court of the county .of Middle&ex.</p>

<p>1. If an agent, in making a loan of money, accept from the borrower a bonus beyond the legal rate of interest, such act of the agent will not render the contract usurious, if the bonus was taken without the knowledge of the principal, and was not received by him.</p> <p>2. The reservation of interest for money actually on hand and subject to the call of the borrower, during the time he is engaged in completing his securities, is not usurious.</p> <p>3. The essence of the offence of usury is a corrupt agreement to contravene the law. Any contrivance to evade the statute, and to enable the lender to receive more than legal interest for liis money, renders the contract a corrupt one. And the law will infer the corrupt agreement, when it appears by the face of the papers or otherwise, that illegal interest was intentionally reserved, although the illegality arose from a mistaken construction of the law.</p>

<p>This cause was heard upon appeal from the opinion of the Chancellor (reported ante, p. 218) upon the construction of the will of John R. Thomson, deceased.</p> <p>The will is as follows:</p> <p>“ I direct my debts and funeral and testamentary expenses to be paid, and I appoint John M. Read, Charles Macalester, and Alexander H. Thomson, my executors.</p> <p>I do hereby give and bequeath, all and singular, the books, pictures, plate, china, wines and liquors, and all other household goods and furniture of every kind, which shall be in and about my house at Princeton, and also in and about my house at Washington, and all my horses and carriages, to my wife, Josephine A. Thomson.</p> <p>All the rest and residue of my real and personal estate, of whatsoever nature or kind, or wheresoever situate, I give, devise, and bequeath to John M. Read, Charles Macalester, and Alexander II. Thomson, their heirs, executors, and administrators, in trust for the following uses and purposes :</p> <p>First. To give to my sister, Mrs. Caroline Norris, two hundred and fifty shares of the capital stock of the New York and Baltimore Transportation Line; to my sister, Adeline Thomson, two hundred and fifty shares of the capital stock of the said line; to my sister, Amelia Read, wile of the Hon. John M. Read, two hundred and fifty shares of the capital stock of the said line; to my nephew, Alexander Hamilton Thomson, one hundred and twenty-five shares of the capital stock of the said line; and to my niece, Elizabeth Norris, one hundred and twenty-five shares of the capital stock of the said line.</p> <p>Secondly. I give to my friends, John M. Read, William II. Gatzmer, Richard Shippen, Dr. Phineas J. Horwitz, and Joseph P. Norris, the husband of my sister, Caroline Norris, five bonds of one thousand dollars each, of the Delaware and Raritan Canal Company and Camden and Amboy Railroad and Transportation Company, redeemable in 1889, one bond to each of the above named legatees.</p> <p>I also direct to be paid an annuity of five hundred dollars, cluping his. natural life, tp my brother, Edward R. Thomson, pf the.IJnited States navy.</p> <p>And I further direct that, from the income of the residue pf my estate,, there- shall-be paid an annual sum of ten thousand dollars, payable semi-annually, to my wife, Josephine A. Thomson, and I authorize and empower my said wife, by her last will and testament, duly executed, to direct, limit or appoint, give or devise, the portion of the estate so appropriated for an income of ten thousand dollars a year for her support, to give or devise the same to and amongst all and every the children of my sisters, Caroline Norris and Amelia Read, and their children, in such proportions, and for such estate or estates, as she may think proper; or if my wife sbi chooses,' she may, by her last will and testament aforesaid, direct, limit, or appoint, give or devise the same to and among, my sisters, Caroline, Adeline, and Amelia, and their children and grand-children, and my brother Edward, in such ’proportions, and for such estate or estates, as she may think proper; and my said trustees, their heirs, executors, and administrators, are hereby required to pay, assign, -convey, and transfer the same to the said appointees, according to. the directions, limitations, appointments, gifts, and devises.in the said last will of my said wife.</p> <p>■- And I further direct that, if the income from my estate, 'after: the1 payment of the bequests herein before made, shall exceed- the sum of ten thousand dollars a year, the surplus be invested in good securities, and that my said wife, Josephine, shall be authorized and empowered by her last 'will and- testament, to give and devise the same among such ■benevolent, religious, or charitable institutions, as she may think proper.</p> <p>• ■ - And in default of such directions, limitations, and appointments, and so far as the same shall not extend, then to pay, assign, convey, and transfer the residue to my said three sisjers, Caroline, Adeline, and Amelia, and my brother Edward, t-lieir heirs, executors, and administrators, as tenants in common, to whom I give and devise the. same.</p> <p>Fourthly. I authorize my said trustees and executors to retain and hold whatever investments I may have at my decease, unless requested, in writing, by my wife to change the same.</p> <p>I authorize my said executors and trustees, in either capacity, to sell and convey all, or any part of my estate, real and personal.”</p>

<p>1. The well settled'rule in equity is, that if the lander comes into court seeking to enforce a usurious contract, equity will repudiate the contract. But if the borrower seeks relief against the usurious contract, the only terms upon which the court will interfere, are that he shall pay what is really and bona fide due.</p> <p>2. A bill for foreclosure by a second mortgagee, making the first mortgagee a defendant, as against such first mortgagee, is, in effect, a bill to redeem, not to foreclose.</p> <p>3. The first mortgagee is- not a necessary, nor a proper party to a bill by a subsequent mortgagee, if the sole design of the suit is a foreclosure of the equity of redemption. Technically, all that can be asked in such case is, that the complainant be permitted to redeem the prior encumbrance.</p> <p>4. Where, as in our practice, prior encumbrancers are permitted to be made parties to a bill for foreclosure and sale of mortgaged premises, if the first mortgagee, defendant in such bill, comes in with his mortgage, he simply assents to the relief prayed for by the complainant.</p> <p>5. As against the first mortgagee, the relief prayed for will not be granted, unless by his consent, or upon payment of the amount actually due upon his mortgage.</p> <p>6. Where, to a bill for foreclosure, the answer of the owners of the equity of redemption raises the defence of usury to the mortgage of a co-defendant, such answer is in the nature of a cross-bill, seeking relief against the usurious mortgage. .</p> <p>7. Upon a bill filed by a second mortgagee for foreclosure, and seeking to avoid the first mortgage as usurious, no decree will be made declaring the usurious mortgage a valid encumbrance for the amount actually advanced, unless by the consent, express or implied, of the owners of the equity of redemption, to the proceedings.</p> <p>8. But if the parties interested in the equity of redemption, concur in the prayer of the bill by resisting the usurious mortgage, and the cause is brought to final hearing upon the pleadings and proofs, a decree pronouncing the mortgage usurious, and declaring it an encumbrance only for the amount actually advanced, will not be reversed at the instance of the owner of the equity of redemption.</p>