Volume 18 — New Jersey Equity Reports

<p>Upon filing the bill, a rule to show cause was granted why an injunction should not issue, and a temporary injunction granted meanwhile. The cause is now heard upon the argument of the rule, upon bill, answer, and affidavits.</p>

<p>1. This court will not, at the suit of a creditor, restrain the alienation of property alleged to be held in trust for the widow, if the party applying is a creditor at large, without any judgment or claim that would be a lien on the property if it was held by the debtor in his own name.</p> <p>2. Property purchased by one partner with the funds of the partnership, in liis own name, or that of his wife, will be considered as belonging to the partnership and held in trust for it.</p> <p>3. Whore an answer fully denies the facts in the bill on which the equity to sustain an injunction depends, the injunction will be dissolved, provided the denial is upon the knowledge of the defendant, but not when the denial is of facts not within such knowledge, hut on information only.</p> <p><1. The facts upon which the injunction depends must he verified by positive proofj annexed to the hill, or the injunction will be dissolved, even if the denial in the answer is not sufficient for want of personal knowledge by the defendant.</p>

<p>1. The recriminatory plea of adultery to a petition for divorce on that ground, must be clearly set out in the answer.</p> <p>2. In a suit for divorce on the ground of adultery, the court cannot lay hold of any matter not properly put in issue, on the ground that public policy and public morals require it.</p> <p>3. An act of adultery committed by the husband and forgiven for years, should not be held to compel the husband to submit, without redress, to the faithlessness and unrestrained profligacy of his wife. It is better to hold that when the erring party is received back and forgiven, the marriage contract is renewed, and begins as res integer, and that it is for the party, and not for the courts, to forgive the new offence.</p>

<p>1. Tbe complainant, having failed to attach the required revenue stamp to the original writ, after the expiration of the time limited for the defendant to file his answer, attached the stamp and took a decree pro confesso; the defendant moved to set aside the decree. Motion denied with costs, but, under the circumstances of the case, without prejudice to the motion being renewed within fifteen days, if the defendant could make affidavit of a good defence, and show what that defence is.</p> <p>2. Such affidavit should be entitled in the cause.</p>

<p>This court will restrain, by injunction, a mortgagee from selling the equity of redemption, by virtue of judgments, in satisfaction of the mortgage debt.</p>

Upon a report by the master sustaining the exceptions of the complainant to the answer of the defendants, an order was entered confirming the report, without notice of filing the report, or taking and serving the usual order nisi. It is now moved to set aside the order to confirm the report, as made irregularly.

Upon filing the bill in this cause, an injunction issued to stay execution upon a confessed judgment. Answers were filed by all the defendants. Edward I). Weld, one of the defendants, then moved to dissolve the injunction.

<p>1. The evidence in this case held not sufficient proof of residence necessary to give the court jurisdiction; neither party residing here at the time of the desertion.</p> <p>2. Where it is shown that there was no marriage ceremony, proof of cohabitation as man and wife will not prove marriage; it is necessary that a contract, consented to by both parties, should be shown.</p> <p>3. When a husband upon disagreement with his wife, and her declaring that she will not live with him, assents to her going where she chooses, and furnishes her with money for her support, and never insists as a condition of her support, that she shall perform her duties as a wife, although he asks and entreats her to come back, it has too much the character of a friendly arrangement to be called willful, obstinate, and continued desertion.</p>

<p>1. In a, suit against a husband for alimony under the tenth section of the divorce act, it is proper to allow to the wife counsel fees, and also temporary alimony, pendente lite.</p> <p>% Counsel lees and alimony, pendente lite, are only allowed to a wife, and whore the answer denies the fact, of marriage under oatli, and the fact of marriage is the main controversy in the cause, they will not be allowed, cxcejvt upon satisfactory proof of the fact of marriage, or that the defendant cohabited with the1 complainant as his wife, or publicly acknowledged her its such.</p>

This cause was argued before A. S. Pennington, esquire, one of the masters of the court, who was called by the Chancellor to advise with him.

<p>This canse came on for a hearing before A. S. Pennington, esquire, one of the masters of the court, upon an exception to the report of the master, allowing the defendant a charge of §500 for his services in defending the complainant upon a trial for murder.</p>

The complainant filed his bill in this cause to restrain Atterbury, Merrill, and McIntosh, the commissioners appointed under the charter of The Tide Wafer Company, the other defendant, from making a contract with that company, to dyke and drain the lands of the complainants and others, against their will. A temporary injunction was granted. No answer was filed, and no depositions were taken. The cause is heard upon a motion to dissolve the injunction.

<p>1. The owner of lands abutting on a public street, is presumed to own the land in front to the middle of the street, subject to the easement of the public highway.</p> <p>2. The municipal government of the city of Elizabeth had not, until 1863, the power to construct drains or sewers under the public streets. It was charged with keeping them in repair, and no one could, without its permission, open or disturb the surface of the streets in front of the land of another.</p> <p>3. A permit to open a street for the purpose of laying a drain, is not to be construed as a grant of a right to lay and continue a drain, but simply as what it imports to be, a license to disturb the surface of the street.</p> <p>4. The person laying a drain by such permit, has no right to maintain it as against the owner of the land on that side of the middle of the street on which the drain is.</p>

<p>The complainant filed this bill to compel the defendant to reconvey to him, a farm of one hundred and fifty-four acres of land, in the county of Mercer.</p> <p>The complainant’s claim to relief rests upon three distinct grounds, either of which will entitle him to the interference of a court of equity.</p> <p>1. The complainant intended and understood that he was to receive from the defendant, for the property, the same price he had allowed to Andrew R. Titus for it, and he did not intend to part with his title, unless he received that equivalent.</p> <p>2. The deed from the complainant was never legally delivered to the defendant.</p> <p>A deed, to be valid, must go into the hands of the grantees with the consent of the grantors.</p> <p>A sealed instrument, entrusted to a party with authority to deliver it to the grantee in case certain conditions are complied with, will not become a deed if delivered without compliance with such conditions. Black v. Shreve, 2 Beas. 455.</p> <p>3. If the contract was originally, as the defendant claims it was, viz. that the defendant should have the property for the encumbrances on it, the contract being by parol, the complainant had a right to change his mind, and did change it, and sent a due-bill for $2510 to be signed by defendant before the delivery of the deed.</p> <p>The defendant had no right to retain the deed without signing and returning the due-bill to the complainant.</p> <p>Prior to the filing of the bill in this case, the complainant instituted a suit in the Mercer Circuit Court, to recover from Phillips the sum of $2510, as the price of the farm, in which suit there was a verdict for the defendant.</p> <p>It is now insisted that the complainant had his choice, to disavow the delivery of the deed and apply to equity to have the deed surrendered, or to affirm the delivery and bring suit for the price, and that he has chosen to affirm the delivery ; and that if he brought suit in the circuit under a mistake, that mistake was only as to the fact whether defendant promised to pay the sum demanded; he was under no mistake as to the fact that the deed was delivered contrary to his instructions.</p> <p>But this reasoning is not sound. It is true that, although the deed was delivered contrary to his orders, the complainant could afterwards ratify the delivery.</p> <p>Was the institution of the suit in the circuit an assent to the delivery ?</p> <p>The complainant brought that suit upon the implied assumpsit of the defendant to pay the $2510. He said, by bringing that suit, if the defendant will pay me $2510, he shall have my property.</p> <p>The defendant came forward and testified, that he understood he was to have the farm for nothing, and consequently there being no express assumpsit to pay $2510, the law could imply none, and the suit failed. And we are now told that our suit, in which we declared that the defendant might take our property for $2510, shall be construed into a declaration that he shall have it for nothing.</p> <p>The pretence set up by the defendant in the circuit suit, was a surprise to the complainant, and the inference now attempted to be drawn is untenable.</p>

<p>This cause was brought on for final hearing, upon bill, answer, and proofs.</p>

<p>1. The title 1o the public bridges constructed by a county, is vested in the board of chosen freeholders of that county. It is a corporation created for the purpose of representing the county and holding its property, and suits for the protection of such property are properly brought in the name of that corporation.</p> <p>2. The bridges belonging to a county are public property, held for public use, and are not within the protection of the constitutional provision which forbids private property to be taken for public use without compensation. The legislature have power to direct in what manner such bridges shall be appropriated to public use; and may authorize them to be taken by a turnpike company for part of its road, without compensation.</p> <p>3. Where the charter of a turnpike company authorizes it to construct a road on a route which includes a public county bridge, and requires it to pay to the owners of lands over which the road should pass, all damages sustained, the compensation clause applies to such bridge, which is included in the term land, and of which the county is the owner.</p> <p>4. Even if the damages by taking the county bridge would be only nominal, the county is entitled to restrain the turnpike company from using it as part of their road, until the damages are assessed and the title of the bridge vested in the company, so that the county may be relieved from the obligation to repair it.</p> <p>5. Where a turnpike company is entitled to take toll on two continuous routes of their road when finished, and a county bridge not purchased or acquired, forms part of such two continuous routes, the taking tolls on that section will be restrained until the bridge is acquired.</p>

<p>1. If E. enters into a partnership with P. to continue for three years, and so much longer as B. should continue lessee of the stone quarries leased to him by M., and at the expiration of the lease, E. refuses to renew the lease with M., it having a covenant for renewal at his option, the partnership expires with the lease. B. was not bound to renew the lease and continue the partnership, if not expressly bound so to do by the partnership agreement.</p> <p>2. If articles of partnership provide for its continuance during the existence of a lease, renewable at the option of one of the partners, it is at the option of such partner to continue the partnership by renewing the lease, or to end it by refusing to renew. He has a right to refuse to renew for the purpose of ending the partnership.</p> <p>3. That a partner, having the option to renew such lease and continue the partnership, may have talked and acted as if he intended so to do, will not bind him to renew if he made no contract to do it.</p> <p>4. Upon the dissolution of a partnership, in which the articles provided that the effects, on dissolution, were to he equally divided among the partners, the property and efibcts of the firm belong to the individuals who composed it, as tenants in common; part of the former members of the firm cannot dispose of the property of any other member, without Ms consent.</p> <p>5. If some of the members of a dissolved partnership dispose of the property of one of the partners, without his consent, he may, at his option, call oil them to account for its value.</p> <p>6. In many cases, if some of the partners, after dissolution, continue the business with the property of the late firm, the retiring partner will be entitled to call on them for a share of the profits, as well as lor his capital.</p> <p>7. But this principle will not be applied to a case where the chief contribution to the business was personal skill and labor, and a new partnership was formed with strangers, merely because some of the property of the retiring partner was used in the new business, after being sold to the new firm by the continuing partners, without authority so to sell it.</p> <p>8. A majority of the partners of a firm that is dissolved, have no right, without judicial proceedings, to compel another partner to sell or divide the property, or to choose an appraiser for the purpose of valuation, or if he refuses, to choose appraisers themselves, and purchase or sell his share at such valuation. But if they have appropriated or sold the property, they must account to him for the real value of his share and interest therein.</p>

<p>The bill was filed by the complainant, heir-at-law oi Eobcrt McLenahan, deceased, against his administrator and widow, to compel the administrator to pay a mortgage debt out of the personal estate of the intestate, in exoneration of mortgaged lands descended to the complainant, and to restrain him from settling his final account and distributing the estate until such payment shall have been made. The intestate had purchased the lands subject to the mortgage in question, but had not expressly assumed or covenanted to pay the mortgage by the deed to him, which only recited that the land was conveyed subject to the mortgage. The amount of the mortgage money had been retained by him from the consideration.</p> <p>Answers were filed by the widow and administrator, and the cause was heard on a motion to dissolve the injunction granted.</p>

<p>1. By the law of England, and of the state of New York, if a debtor deposits unrecorded title deeds with his creditor, as security for his debt, such deposit constitutes an equitable mortgage on the land for the debt. And this court will not compel the creditor, when he resides or is found in this state with deeds in his possession for lands in New York, so deposited in that state, to surrender them until the debt is paid.</p> <p>2. The fact that a title deed is not recorded, nor in the possession of the grantee, might be sufficient notice to a purchaser or mortgagee of such equitable pledge as to put him upon inquiry. Tut a widow of the pledgor, who purchases the title of his children and heirs, without any money consideration paid, is not a purchaser for value so as to dispute such equitable mortgage because not registered.</p> <p>3. If the owner of lands pledges his deeds, which are his property, as security for a debt, neither he nor his heirs are entitled to their return until the debt is paid, apart from the doctrine of equitable mortgage.</p>

<p>1. When a purchase is made at a sheriff's sale, under a parol agreement with the defendant in execution, that he shall he permitted to redeem, he will be entitled to a reconveyance, on paying what may be due to the purchaser.</p> <p>2. If a defendant in a suit dies after the complainant has been examined as a witness, and his administrators are made defendants in his place, this evidence will be admitted at the hearing. The complainant was competent at the time when it was taken, and that is the test of admissibility. It cannot be rejected because the defendant was prevented from testifying by his death.</p> <p>3. Inadequacy of price at a judicial sale is not, of itself, sufficient cause to avoid the sale, unless so gross as to be proof of fraud, or to shock the judgment and conscience.</p> <p>4. If the plaintiff, at a sheriff's sale, sees that the defendant is under the impression that the plaintiff is purchasing for his benefit, and permits him to remain and act under it, and by means of that impression, and the cooperation of the defendant produced by it, purchases the prooerty at an inadequate price, the purchase will be held to have been made in trust for the defendant.</p>

<p>This cause was argued on final hearing, upon the pleadings and proofs.</p>

The bill in this cause was filed by Elizabeth Shepherd, executrix of Joseph Shepherd, to foreclose a mortgage for §500, dated September 17th, 1847, alleged to have been given by •one Jonathan McClain to one William Henry Grant.

<p>This cause came up for hearing upon exceptions by the complainants to the master’s report.</p>

<p>X. Where a bill contains only a special prayer for relief, no other relief can be granted. And if the facts set forth in the bill would not authorize other relief, the prayer will not be amended.</p> <p>2. It is a rule in equity, as well as at law, that parol evidence will not be received to explain or vary a will, or other written instrument, or to solve any patent ambiguity. But surrounding circumstances may be shown to explain what might seem an ambiguity on the face of a will.</p> <p>■ 3. A direction to invest twenty thousand dollars in some safé investment for a daughter, must be held to mean that sum in money, not in the stocks or securities in which the testator had invested the bulk of his estate, at their nominal value.</p> <p>4. When a sum is directed to be invested for the benefit of a child of the testator, it must be invested at the end of a year from his death, and the child is entitled to the interest to accrue from the end of the year.</p>

This matter came up on exceptions by the complainants, to the report of the master, made upon an interlocutory decree heretofore taken in the cause.

<p>This cause was argued upon a motion to dissolve the injunction. The facts of the case fully appear in the opinion of the master.</p>

<p>Where “ seven (or more) citizens of this state ” associated to establish an office of discount, deposit, and circulation, under the act to authorize the business of banking, approved February 27th, 1850, and executed, acknowledged, and had recorded in the offices of the secretary of state, and the clerk of the county where said office was proposed to be located, the certificate required by the sixteenth section of the act, which certificate also states that the associates had elected one of their number to be president of the association, and the association went into operation without further organization, except the selection of a cashier, it was held—</p> <p>1. That the persons signing said certificate were only associates, and corporators or stockholders, and not directors or managers of said corporation; the eighteenth section giving to them only power “to choose a board of directors,” under whose “ direction ” the business of banking may be conducted.</p> <p>2. That the transaction of banking business by said associates, or by the president alone, whom they had selected, was a fraud on the statute.</p> <p>3. Where seven of the associates subscribed for only five shares each, and the balance of the three thousand shares was subscribed for by the eighth associate, who was also the president elect, and one third on each share of the whole stock was paid in by the president, the other associates paying nothing, it was held to be a valid corporation, and each and all the associates responsible for its proceedings.</p> <p>4. That each of said associates was liable, in case of insolvency, to pay the deficiency on the stock standing in his name, not exceeding the amount of each share as fixed by the charter, or such proportion as shall be required to satisfy the debts of the company, and that a court of equity will enforce such payment.</p> <p>5. Under the second section of the act to prevent frauds by incorporated companies, approved April 15th, 1846, it was held, in order to evade a sale or transfer by an insolvent corporation or its officers, it must appear that the corporation had, previously to such sale- or transfer, become insolvent, or suspended its ordinary business for want of funds.</p> <p>6. Under the proviso to said section, a transfer of notes or property of the bank, prior to suspension, for a valuable consideration, to a bona fide purchaser, without “knowledge, information, or notice of the insolvency,” was held to be good and .valid.</p> <p>7. The “ knowledge, information, and notice of the insolvency ” cannot ■depend on mere constructive notice, or what will put the party on inquiry ■only. The terms of the act imply knowledge, either of the party himself) or imparted to him by,some one who had that knowledge, and not mere suspicion, supposition, or belief of himself or of another, imparted to him.</p> <p>8. An associate who took no part in the transactions of the bank after he had signed the certificate, was not in a situation to be charged with implied knowledge or notice as a director or manager.</p> <p>9. Where a sum of money was placed in the hank as a special deposit to meet a contingency of the hank which never happened, the repayment ■of the same by the receiver was held valid.</p> <p>10. The removal of the receiver was refused.</p> <p>11. Several payments were made by the bank, but whether before or after suspension, did not clearly appear ; in these cases the receiver was directed to deal with them in accordance with the principles stated in the opinion.</p>

<p>1. The father is entitled to the custody of his children ; and in no case will the courts take them away from him when he has them in his custody, fairly obtained, except where the father, from notorious grossly immoral conduct or great impurity of life, with which his children come in contact so as to be in danger of contamination, is an improper person to have the custody of his own children, infants under seven years of age are an exception, under the act of March 20th, 1860 (l’amph. L. 437).</p> <p>2. Upon a ha ocas corpus brought by the lather for his children, the court, will not, as a matter of course, order them to be delivered up to him, but only in case they are improperly restrained of their liberty. The office of the writ is not to recover the possession of the persons detained, but to free them from all illegal restraints upon their liberty.</p> <p>3. If the infants are of sufficient years or discretion to judge for themselves, they will he examined, and if they are satisfied and wish to remain, the court will hold that they are not unduly deprived of their liberty, and will permit them to go with which of the parties they may elect. When they are too young to exercise any discretion, the court will determine for them, and adjudge the custody to such parent as may be considered most advantageous for the infants.</p> <p>4. All the children were adjudged to remain in the custody of the mother ; the two youngest, because under seven years of age, and the mother a fit person to have the custody of them ; the four eldest because, upon examination, they proved not to he restrained by their mother, those capable of making their election preferring to remain with her ; and in the case or those not so capable, because it was adjudged to he for their benefit and advantage to be brought up with the others.</p>

<p>1. The power of a guardian over the person and property of an infant ceases at her marriage. Prom that time such guardianship devolves upon the husband. He can enter upon her property, and permit others to enter upon it, without committing a trespass; he can also make leases voidable by her upon his death, or by his heirs at her death.</p> <p>2. An acknowledgment by a married infant is void.</p> <p>3. The husband of a married infant cannot sell or dispose of the growing wood or timber on the real estate of his wife.</p> <p>4. The deed of a married infant is void when it attempts to convey the wood and timber separately, as when it attempts to convey the soil with them standing upon it.</p> <p>5. By the married women’s act (Nix. Dig. 503,) in cases coming within the provisions of that act, the husband has, during her life, no interest or estate in the lands of his wife. She can sell them with his assent, and if she so sells and conveys them, she conveys them free from any interest or estate of her husband.</p> <p>6. That act destroyed the estate of tenancy by the curtesy initiate. '</p> <p>7. The married women’s act, although inconsistent with the estate by curtesy initiate, does not defeat the husband’s curtesy at the death of the wife, provided she has not aliened her estate before. The act only protects her estate during her life; it does not, at her death, affect the law of succession as to real or personal estate.</p> <p>8. Xeither a husband nor his lessees may commit waste upon lands in which he has only an estate by the curtesy.</p> <p>9. A lease made by the husband of a married infant of her lands, becomes valid for his life, by the vesting of the estate by curtesy; and the lieirs-at-law, being entitled to the reversion, have such privity of estate as will enable them to call the life tenant and his lessees to account for wood and timber cut, as well during the life, as after the death of the infant.</p> <p>10. Where the husband of a married infant permits the felling of trees upon her lands, or severing any part of her realty, and so the change of the real to personal property for his own benefit, it will retain its character of real property so as to pass to those who would have been entitled to it if not severed.</p> <p>11. The heirs-at-law are entitled to an account for so much of the timber as has been taken away, and an injunction to restrain the removal of so much as still remains on the land.</p>

<p>1. The statute of frauds is not a good defence in the case of a resulting trust arising by implication of law, or of actual fraud.</p> <p>2. When a defendant in execution, or the heirs of a decedent, rely on the promise of some one to buy the property for their benefit at the sale under the execution, and in consequence neglect to attend the sale, or bid for the property, and the person trusted buys for his own benefit, a court of equity will hold such purchaser a trustee, notwithstanding the statute of frauds.</p> <p>3. The application of the principle cannot be invoked in this case.</p>

<p>1. In general, a trespass will not be restrained by injunction. But where the trespass is an obstruction to a public highway, entitled io be used by all citizens, it is a nuisance of a character which this court will prevent by injunction.</p> <p>2. The denial of the answer being fully responsive to the allegations of the bill and supported by the affidavits, injunction dissolved.</p>

The complainants have filed their bill for an injunction to restrain the defendants from preventing or hindering their entering upon certain lands described in their bill of complaint, for the purpose of pumping water out of a mine thereon, and ascertaining the extent and value of said mine, and of searching for minerals, &c.; claiming the right thereto, under and by virtue of a certain lease set out in their said bill.

<p>1. Where the cause is heard upon bill, answer, and replication, all the allegations of the answer responsive to the complainant’s bill, must be taken as true; all other allegations set up in the answer by way of defence or avoidance, not amounting to a denial of the statements of the hill, denied by the replication, and not proved by the party setting them up, ■can have no effecl on the decision.</p> <p>2. Where a legacy is left to A. for life, with remainder over lo his children, a debt due from A. to the testator cannot be set off against the principal of the trust fund. The whole must be invested for the benefit of the ■tenants in remainder.</p> <p>3. Where an executor holds the notes of his testator’s legatee, although they cannot he offset against the interest due such legatee, yet a court of equity would allow them tobe used in payment of the interest during his life.</p> <p>4. An account settled in the Orphans Court, and within the jurisdiction of that court, cannot be inquired into in a collateral suit in this court.</p>

<p>1. Under a bequest by a testator of his property, “ to be equally divided, share and share alike, between my children and their legal heirs, that is to say, to J. S., D. B. S., W. S., A. S., and C. II., each a share, and the children and heirs of A. L. S., and of M. IT., and of C. M. F., each a share,” the legatees take per stirpes.</p> <p>2. Where executors, directed to make a sale of the real estate of their testator, neglect their duty, and fail to obtain therefor as high a sum as might have been obtained but for their own default, they will be compelled to make up the deficiency.</p> <p>3. An executor is liable for funds voluntarily placed in the hands of a co-executor and wasted.</p> <p>4. An executor who delivers a mortgage to be canceled, is responsible if the debt be thereby lost.</p>

This cause came before the court upon a motion by the ■defendant, first, to dismiss the bill for want of equity; or, second, to compel the complainant to elect between his suits at law and that in equity; ox, third, to stay proceedings in this suit, until those at law be determined.

This cause was heard upon a motion to discharge the defendants, who were arrested and gave bond on a writ of ne ■exeat, from the arrest and their bond, and also to discharge the order.

<p>1. A tenant in common has a right to partition in chancery, if he shows a title to a share.</p> <p>2. 'When the title of the complainant in a hill for partition is disputed, It will not he settled upon the hearing in this court, hut the complainant will be compelled to establish his title at law first, and the bill will be retained until he can so establish liis title.</p> <p>3. But it, must appear clearly to the court, that there is an actual dispute, either by direct statement, or by words that amount to a direct denial of title, and not by a mere possible inference from the pleadings or proofs.</p>

<p>1. This court can and will order a second inquisition of lunacy when the first is irregular or unsatisfactory, from the finding being against evidence, or by a mistake of the jury as to their duty. Or it will order a second inquisition at some time after the first, if it appear that there is an evident change in the condition of the subject.</p> <p>2. The substitution of a new commissioner for one appointed by the Chancellor, without his approval or confirmation, no one of the commissioners being a master of the court, is such an irregularity as would set aside the inquisition if urged for that purpose at or before the motion for confirmation, but would bo without effect, upon the argument of a rule to show cause why a commission should not issue.</p> <p>3. Imbecility for which a commission will issue, must amount to unsoundness of mind.</p> <p>4. The presumption of law is not against the soundness of mind of a person one hundred years of age.</p> <p>5. Where unsoundness of mind is proved, and the question is as to the degree of it, and it appears that the subject never had any property to control until the issuing of the commission, the court and inquest would and should look at the value and importance of the property to be controlled by her, and also to the persons by whom she is surrounded, and their conduct.</p>

<p>N. M., by Ms will, gave to Ms executors, in trust, as follows: “ With the balance of my estate which may remain after executing the foregoing trusts, to establish, as soon as may be practicable after my decease, in what is now known as the fifth ward of said city of Newark, an orphan asylum, to be called St. James Roman Catholic Orphan Asylum, and also a hospital for sick and infirm persons. And my executors, or the survivor of them, shall, as soon as may be practicable after the institutions shall have been established, cause them to be incorporated, one corporation for both institutions, and shall convey to the corporation, when created, all the property belonging by assignment or appropriation of said executors, or the survivor of them; to the institutions. In the meantime and until such incorporation, such executors, or the survivor of them, shall have the management of the institution: ”</p> <p>Held, that the right to establish these institutions for the purpose specified is in the executors. They are not bound to put them under the direction of the Roman Catholic Church, or its bishop, or prelates; or to cause the worship of that church to be adopted, or its tenets to be taught exclusively, or at all, except as their own judgment impels them.</p>

<p>1. Where the owner of lands devised the same in two parcels, one to A, and the other to B, the fact that he was accustomed in his lifetime to use an alley upon the land devised to B, as a means of egress from his stable upon the land devised to A, to the street, will not create an easement in B’s land in favor of A, he being able to construct a way over the parcel devised to him, from the stable to the-street, and such easement, therefore, not being necessary to the beneficial enjoyment of his land.</p> <p>2. Discontinuous easements not constantly apparent, are continued or created by a severance, only when they are necessary, and that necessity cannot be obviated by a substitute constructed on or over the dominant premises.</p> <p>3. The leading cases examined and commented upon.</p>

<p>1. Under a bequest as follows, to wit: “ I give and bequeatli to my son, I). K., and his heirs, the sum of 8300, if he or they shall appear or claim the same within three years from the time of my decease,” held that a demand by D. K., by his attorney duly authorized by a special power executed for that purpose, was sufficient to entitle him to the legacy; it was not necessary for him to appear in person.</p> <p>2. Costs to be paid out of the residue, on settling the estate, if the executor hesitated to pay the legacy from honest doubts of his liability, or at the request of the residuary legatees.</p>

<p>Held, that the words in the codicil, “ choose to remain,” mean choosing to remain rather than go away, not choosing between remaining and the legacy.</p>

<p>1. The general rule is, that where a note is without consideration, relief cannot be had in equity on that ground merely. But where the note is negotiable, and not void on its face, and in case of a discontinuance or non-suit might be held until the evidence of its being without consideration could not be had, and then a suit on it be brought against the administrators or the infant heir, to the amount of assets descended, a court of equity will order the security to be given Up to be canceled.</p> <p>2. When a demurrer is too extensive, or bad in part, it must be wholly overruled.</p> <p>3. The peculiar relations of husband and wife will not protect her from making a discovery relating solely to her own conduct, and affecting only her own interests. In such case she may, under the recent acts, even be compelled to testify against herself.</p>

<p>1. A simple representation, at the time of sale, that a lot is valuable and eligible, is but the expression of an opinion, and is never regarded as a ■warranty.</p> <p>2. A mortgage cannot be reformed upon a prayer in the answer to a bill to foreclose. It must be by cross-bill.</p>

<p>1. If the owner of a tract of land lays it out in lots and streets, by a map publicly exhibited or filed in the proper public office, and sells lots laid out on said map by a reference thereto, he thereby dedicates to the public those streets on said map, along which lots have been sold. Such dedication does not make them public streets or highways until the proper municipal authorities have accepted them as such, or in some way ratified the dedication.</p> <p>2. The proper municipal authorities charged with laying out and maintaining streets, have the right, on the part of the public, to take and appropriate the lands so dedicated, for the purpose for which they were dedicated, and to grade and construct streets and highways upon them without further compensation ; or in cases where it is required to vest the title in the public, upon a nominal consideration.</p> <p>3. The map or conveyance may qualify the dedication. But laying out land in lots and streets, clearly marked as such, and selling lots bounded •on such streets, without any qualification, must be held as an absolute dedication.</p> <p>4. An intention to qualify the dedication concealed within the breast of the owner, or not expressed in some way on the map or in the conveyances, cannot be regarded.</p> <p>5. Whether a contemplated street would- not be unwise and injudicious, And even if it would be productive of great injury to private property, cannot be considered by this court. It is a matter exclusively within the province of the municipal authorities.</p> <p>6. Whether the x>roceedings of municipal authorities have been according to law, is within the jurisdiction of the courts of law.</p>

<p>1. A court of equity has power, in cases where there is a clear debt or duty to be paid or performed by the testator or his executors at a future day, to order that sufficient assets for the discharge of it be retained and secured by the executor, before distribution of the estate. There is no adequate remedy at law in such case, and the creditor ought not to be left to follow the legatees, or resort to the refunding bonds for the share of each.</p> <p>2. An indenture of apprenticeship, with covenants valid in the state where executed, will be enforced in the courts of this state, if not contra bonos mores, or against the policy of our law. The personal status of each individual is governed by the law of actual domicil.</p> <p>3. In general, executors are bound by all covenants of the testator, except such as must be performed by him in person.</p> <p>4. In a contract of apprenticeship the covenant to support must be limited to the time of service, and cease when that ends. Exit the principle must be settled at law, and unless the right is so settled the aid of this court cannot be extended to prevent the distribution of the master’s estate to protect a doubtful claim.</p> <p>5. To bar a claim against an estate, under the rule limiting creditors, (Nix. Dig. 589, § 70,) tkere must be proof tkat tke notice was advertised or set up as required by law.</p> <p>6. A provision-made by a master in kis will, for tke support of kis apprentice, if liberal according to kis circumstances and ker condition, must be taken to be a satisfaction of kis obligation to support ker.</p>

<p>1. A suit on a written contract, for the contract price for work and labor done, if the work has been performed according to contract, or if it has not been so performed, and the party for whom it is done has dispensed with the contract in some particulars, or has accepted and used it, and the same is a substantial advantage to him, must be brought at law.</p> <p>2. An injunction will not be granted, where it would cause great injury to the defendants, and might be of serious detriment to the public, without corresponding advantage to the complainant.</p>

<p>Whore a bill is filed for relief upon an alleged agreement, and the answer denies such agreement, the complainant must prove it by two witnesses, or evidence equal to two witnesses.</p>

<p>In a bill for divorce a mensa et thoro, and for alimony, on the ground of extreme cruelty, the complainant has the burthen of proof, and must sustain her case by something more than equally balanced testimony.</p>

<p>1. In general, a defendant cannot have any positive relief against the complainant, even as to the subject matter of tbe suit, except by cross-bill.</p> <p>2. But where the complainant bases his right to relief upon an agreement for farming on shares, and prays for an account and equal division of part of the proceeds taken by the defendant, the defendant is entitled to an account of so much as has been received by the complainant, and will not bo compelled to file a cross-bill for that purpose.</p>

<p>1. A father is bound to support his infant children, if of sufficient ability to do so, though they have estates of their own, given expressly for their maintenance ; if he is not able to support them, so much of the income of such estates as is necessary, will he ordered to be applied to that purpose, though bequeathed with directions to be accumulated during minority.</p> <p>2. Where infant children have, by their father, filed their bill alleging his inability to support them, and praying income from their estates for that purpose, the fact of their father’s ability will be inquired into and determined by the court; the admissions of the answer are not sufficient.</p>

<p>Tlie bill in this case was filed by the complainant in behalf of himself and such other owners of lots on South street, in Morristown, as might come in and claim relief, &c.</p> <p>The principal matters stated in the bill were these: that the complainant was the owner of a lot of land, on which was a dwelling-house and other buildings; that said dwelling-house stood back fifteen or twenty feet from the street fence, which fence had been erected in its present position about twenty-six or twenty-seven years ago, and had been maintained in the same place ever since its erection; that complainant had a sidewalk in front of his said lot between the said door-yard fence and the wagon-way of said South street, and not over seven or eight feet in width, and that said sidewalk had been of its present width for twenty years last past, and longer, Ac.; that at the outer edge of said sidewalk complainant had growing on his own land four valuable shade trees; that said South street commences at the southerly corner of the public square in Morristown, and continues thence in a southerly direction for nearly half a mile; that said South street was an ancient highway, but had never been laid out by surveyors of the highways; that until the year 1865 Morristown was not incorporated. The bill then sets out at length sundry provisions of the act of incorporation, and its supplements, and avers that the Common Council has never passed any ordinance authorizing the widening said South street, or the sidewalks thereof, nor the removal or destruction of any shade trees between the wagon-way and sidewalks along said street, nor the removal of. any door-yard fences standing between the sidewalks and the houses along said street.</p> <p>The bill further charges, that the Common Council caused a survey to be made of South street, and sets out, with great particularity, the lines of the street as located by said survey, showing that it makes the said street to embrace a portion of most of the door-yards bordering on said street; and that, on the twenty-ninth of October, 1866, a notice was served on complainant, by the order of the Common Council, to the effect that the fence on his lot stood between five and six feet into the street, and requesting its removal, &c.; and that notices of a like character had been given to the other land owners whose fences were thought to encroach on the street.</p> <p>The bill further charges, that the Common Council has. determined to make said South street conform to said survey, and to widen the road-way, and in pursuance of such intent has commenced operations; that, besides widening the carriage-way, said Common Council is altering the grade of said street, so that in front of complainant’s lot the street had been lowered about one foot; that, in widening said carriageway, the sidewalks along said street have been considerably narrowed and made unfit for use; and that the line of the work in extending the carriage-way comes inside of the shade trees of complainant and those of the other land-owners ; and that the shade trees will be dug up, or their roots will be so much uncovered as to kill them.</p> <p>The prayer of the bill was for an injunction to restrain the municipal authorities from widening the carriage or wagon-way in said street, from narrowing the sidewalks thereof, from digging up or uncovering the roots, or in anywise injuring any of the shade trees, &c., and from removing, disturbing, or injuring any of the door-yard fences along said street, &c.</p> <p>To this bill the defendants filed an answer, the substance of which sufficiently appears in the opinion of the court.</p> <p>The cause came on for argument on a motion to dissolve the injunction, before the Chief Justice, sitting as statutory master, during the absence of the Chancellor from the state.</p>

<p>This cause was argued on final hearing, upon the pleadings and proofs, before Amzi Dodd, esq., one of the masters of the court.</p>

This cause was argued on final hearing, upon the pleadings and proofs, before Amzi Dodd, esq., one of the masters of the court.

The bill in this cause was filed on the sixteenth day of May, 1867, by Seaman P. Richards, executor of his wife, Eliza Y. Richards, late of the city of Elizabeth, in this state, deceased. It sets forth that in 1862, at said city, Margaret II. Clark, a widow, and mother of the said Eliza, departed this life, having first duly made and published her last will and testament, which was duly proved before the surrogate of the county of Union.

<p>1. If, in a marriage settlement, the intended wife conveys all her property which she now has, or may hereafter acquire, to trustees, this will not of itself, at law, convey her after acquired property. It will be treated in equity as an agreement to convey, and enforced as such, if necessary to carry out the objects declared in the marriage settlement.</p> <p>2. A provision for children in a voluntary settlement, made after marriage, is not a sufficient meritorious consideration to compel performance by the party himself making the settlement, but is, as against his representative. In an antenuptial settlement, made in consideration of marriage, a provision for children is upon meritorious consideration, and will be enforced.</p> <p>3. An antenuptial settlement, which, upon its face and by its recitals, was intended to secure to the wife the absolute control over all her own property, including what might come to her after marriage, and which gave to her absolute power of disposition, either to .her children or strangers, and gave the property to the children of the marriage, only on failure of disposition by her, will not be enforced in favor of the children by construing words of grant into a covenant to convey, and enforcing the conveyance. Such construction will only be made to fulfill the intention of the parties.</p>

<p>1. A covenant made by the grantor in, or at the time of, the conveyance of land, relating to the land, runs with the land, and enures to the benefit of any subsequent purchaser from the grantee or covenantee.</p> <p>2. A covenant made by the owner of land with a stranger to the land to which it relates, will not run with the land when conveyed away by the covenantor, so as to be a burthen upon it, although the deed containing the covenant may convey other land which the covenant was intended to benefit.</p> <p>3. A covenant will not run with land so as to be a burthen upon it in the hands of the purchaser, unless there be some privity of estate between Mm and the covenantee.</p> <p>4. A covenant may amount to a grant, and thus create an easement and impose a servitude upon the land of the covenantor; in which case the land will be liable in the hands of every subsequent purchaser, to the burthen of such servitude.</p> <p>5. A covenant not to sell marl from a certain tract of land, or not to-carry on any specific business upon it, does not create an easement, or impose a servitude; it is only a personal covenant.</p>

<p>This cause was argued on a motion to dissolve the injunction, and to dismiss the bill.</p>

<p>1. A deed absolute on its face, intended and made only as security for a debt, is a mortgage. When the defeasance or agreement showing that it is such security is in writing, the statute declares it to be a mortgage, and requires it to be registered as such.</p> <p>2. An equity of redemption is a right or estate in lands, and cannot be released or conveyed except by writing. No verbal agreement will convert a mortgage into an absolute deed. Whether a surrender and cancellation of a written defeasance would, doubted.</p> <p>3; If a mortgage- was given in the form of an absolute deed, and the defeasance withheld from the records for the purpose of misleading and delaying the mortgagor’s creditors, the right of redemption will not thereby be lost. In such case, the aid of the court is not asked to enforce a fraudulent instrument. The fraud, if any, is in the deed not in the defeasance which the complainant claims to enforce according to its legal effect. The defeasance is honest as between the parties, and was not to injure creditors.</p> <p>4. A power to sell mortgaged premises for the payment of the mortgage debt, given to the mortgagee by the mortgage, is a valid power. It is liable to great abuse, and the exercise of it will be jealously watched. But sales under it, fairly made, will not be set aside.</p>

<p>This cause was argued on final hearing, upon the bill and cross-bill.</p>

<p>1. A vessel was bought at sheriff’s sale, under an agreement by the purchaser with the defendant in execution, that the defendant could redeem, at a certain day, by paying a greater sum, and that for part of that time, the vessel was to be in the joint possession and control of both parties— Held, that after the time for joint possession had expired, the defendant in execution had no right to meddle with, or take possession of, the vessel until he had redeemed it; and that taking it out of possession of the purchaser was a trespass.</p> <p>2. The time fixed in an agreement between a purchaser at sheriff’s sale and the owner of the property sold, made upon the sale, for a conveyance of the property back upon the payment of a fixed price, will be made of the essence of the contract, by a provision that failure to pay at the time shall end the right.</p> <p>3. If a purchaser at sheriff’s sale agree to re-convey the properly, upon being repaid the purchase money and other advances to be made by him, the amount of which is unknown to the party to whom the re-conveyanee is to be made, and upon demand made at the time fixed for re-conveyance, fails to render a proper statement of such advances, the time for re-conveyance will be„ extended, although made expressly part of the essence of the contract. The party to make payment is not in fault until a proper account is rendered, if demanded.</p>

<p>1. A part of the partners cannot exclude from the partnership one of their number who has failed to pay in part of the amount which he agreed to contribute as his share of the capital; but if part of his capital has been paid in, accepted, and used, and the business has been commenced in the name of the firm, he is a partner until the partnership is legally dissolved.</p> <p>2. A partner excluded from the business of the firm by the illegal acts of his co-partners, is entitled to an account of profits, and to his share of them, until the partnership is legally dissolved; and is entitled to a decree of dissolution, on the ground of such illegal exclusion from the business.</p>

<p>1. On a motion to dissolve an injunction, the separate answer of a eodefendanf, not included in the injunction, cannot ho regarded.</p> <p>2. In a suit to restrain an action at law by reversioners, for waste in cutting timber, a justification of the waste, not alleged or set up in the bill, will be of no avail on a motion to dissolve the injunction. The right to the injunction must appear by the allegations in the bill.</p> <p>3. Improvements by a life tenant are no excuse or justification for committing waste; more especially when the waste is to the inheritance, and the improvements are to the fertility of the soil, which may be exhausted during the life estate.</p> <p>4. What constitutes waste is properly a question of law, and the facts which constitute it ought to be passed upon by a jury. A court of equity will not interfere with or restrain a suit for that object.</p> <p>5. Whether the estate of a reversioner is vested in such manner as to entitle him to sue for waste, and what shall be the rule of damages, are questions proper to be determined in the courts of law.</p>

<p>1. Where an old division line between lands lying on tide water lias, for more than forty years, been treated by the owners as extending over the shore, or the lands between high and low water, and regarded as the division line of their right upon the shore, the line so recognized will be established as the line which will govern their rights to reclaim and appropriate the shore under the wharf act.</p> <p>2. No rule for ascertaining the line by which the shore in front of coterminous shore owners shall be divided between them, has been adopted in New Jersey. But if a line claimed by one of them is more favorable to the other than that given by any of the different rules adopted by the courts of the several states, he will.be protected to the line so claimed, unless a different line has been adopted by the owners, by acquiescence or otherwise.</p> <p>3. The owner of lands along tide waters has an easement in the shore in front of them, and the inchoate right to appropriate them to his exclusive use. But until reclaimed, the fee is in the state, 'and he cannot maintain ejectment. But as he has a vested right in the shore, he will be protected in equity, against any encroachment on, or appropriation of them.</p>

An order had been granted that the defendants show cause why an injunction should not issue against them, to restrain them from running on their railroad, any coal-burning engine not provided with such apparatus as would effectually prevent the communication of fire from it to the buildings of complainant, near the line of their road. The case was argued upon the bill, answer, affidavits annexed, and depositions taken.

<p>1. An agreement denied by a responsive answer, must be proved by two witnesses, or proof equivalent to that. The complainant is not a competent witness, where any of the defendants are sued in a representative capacity.</p> <p>2. in a contract to convey land, it is necessary that the lands to be conveyed should be described or designated in the written agreement.</p> <p>3. An agent to sell lands, has not, merely as such, power to convey. He can bind his principal to convey, but cannot himself convey, unless authorized by a power of attorney, first duly acknowledged and recorded. Therefore a deed cannot he demanded oij or payment tendered to, a mere agent to sell.</p> <p>4. A demand of a deed, and tender of payment, must bo within a reasonable time. In this case, two years held not to be a reasonable time.</p> <p>5. Part performance, to take a case out of the statute of frauds, must be clearly proved.</p> <p>6. It is not necessary to set up in the pleadings, as a defence, the statute •of frauds, unless the contract against which it is sol up, is that on which the relief prayed for is founded.</p> <p>7. A person mak.ing a contract to convey lands, verbal or written, and failing to perform it, is bound to refund the amount he may have received upon it, with interest.</p>

<p>1. Where one person purchases land for another, and with the money of the other, although he takes the title in his own name, ^ trust results to the person whose money is paid. So if a guardian, or other trustee, purchase with the money of the ward or cestui que trust, a trust results without being declared in writing.</p> <p>2. Where a mother, a married woman, received money for her daughter, and declared that certain lands, purchased by and conveyed to her for about the amount so received, were purchased with that money and for her daughter, the lands will be decreed to be held in trust for the daughter.</p> <p>3. If a man agree to convey lands, part of which belong to himself and part to his infant step-daughter, and receive a sum as part payment under that agreement, with which he purchases a mortgage that includes the infant’s part, so as by foreclosure to give title, the mortgage will belong to him, and is not held in trust for the infant, the consideration for which the money was paid being the personal undertaking of the vendor, and not the property of the infant, which was in no wise affected by the contract.</p>

<p>1. A charter, giving power to a municipal corporation to ascertain and establish the boundaries of streets, does not thereby give to it power to authorize buildings to be erected within the boundaries of an established street or highway.</p> <p>' 2. The remedy at law by indictment, is adequate to remove an encroachment on a public street by erecting a building extending into it. The courts of law are the proper tribunals to settle the fact of encroachment. For such cases, a court of equity will not interfere by injunction, unless under peculiar circumstances of pressing irreparable injury.</p>

<p>Two mortgages, given to secure four notes, and to indemnify an endorser, were held to he paid and satisfied; the payment being denied by the person holding them, on oath, and testified to by the assignee of the mortgagor, who paid them, and shown by the written surrender and reoeipt of the holder. '</p>

<p>This cause was argued before Janies Wilson, esq., one of the masters of the court, who was called by the Chancellor to hear the same.</p>

This was a motion on part of the defendant to order the bill to be taken from the files, on the ground that the complainant was an idiot, and the bill was filed in her name by one Couse, as her next friend, he not having been appointed her guardian upon inquisition found, or been authorized by this court in this case to file the bill as her next friend.

<p>1. Proceedings by foreign attachment are not void, merely because the defendant was a resident of the state at the issuing of the attachment. The foundation of the proceedings, and of the jurisdiction of the court, is not the non-residence of the defendant, but the affidavit of the plaintiff’s belief of his non-residence.</p> <p>2. When such affidavit is regular, and made in good faith, this court cannot collaterally inquire into the fact of non-residence, and declare the proceedings void.</p> <p>3. The estate of a lunatic may be proceeded against by attachment; and he need not appear and be defended by his next friend.</p> <p>4. Mere inadequacy of consideration will not avail to set aside a deed, unless accompanied by fraud, or unless it be so gross as to imply fraud.</p> <p>5. A bid of $100 at a fair public sale, for property worth $1500, but upon which there were liens, amounting to $800, there being no pretence of fraud, held not to be so grossly inadequate as to set aside the deed.</p>

<p>1. A general charge that the wife is an adulteress, is not sufficient to-support a bill for divorce. The adultery must be designated, either by the name of the adulterer, or by circumstances, and the time when, and place where,, it was committed.</p> <p>2. Where the charge is of adultery with divers persons, whose names were unknown, and the only proof is of adultery with one person, who was well known to the complainant, the variance is fatal.</p> <p>3. -Bill dismissed, without prejudice to filing a new bill for adultery with . the person against whom the crime was proved.</p>

The petitioner filed her petition in this court for a divorce, on the ground of desertion; her husband having left her, and absented himself for three years. It appearing by affidavit, that the husband was out of the state, she took an order of publication. A copy of this order, instead of the notice required by Rule 145, was sent to Charleston. An affidavit was filed by the solicitor, stating that he had been “informed” that Charleston was his post office address.

<p>Tlie cause was argued upon the bill and answer.</p>

<p>The cause was argued on bill, answer, and proofs.</p>

<p>1. A marriage settlement, by which an intended wife conveyed to trustees, all property which she then had, and to which she might thereafter become entitled, &e., does not, at law, convey the after acquired property. Equity will construe such instrument as a contract to convey, and enforce its performance, only when necessary to effect the plain intent of the parties.</p> <p>2. Such settlement construed as an agreement to convey only such property as the wife might acquire during marriage.</p>

This was a motion to strike out the plea filed by defendant, as improper, and improperly pleaded. One of the grounds of the motion was, that the' plea was not properly sworn to, as required by the statute. This ground was waived by a consent to amend the plea in that particular, and the motion was, by consent, then argued upon the sufficiency of the plea as a defence in this case.

<p>1. A material alteration of a note by the payee, without fraudulent intent, though it avoids the note, does not deprive him of his right to recover the original debt.</p> <p>2. In such case, 'the action for the recovery of the debt should be brought at law. But the alteration being made under misapprehension, and the discovery prayed by the bill being in some decree necessary to show the agreement and the mistake, jurisdiction of this case sustained.</p>

<p>1. The contributors to a fund, raised and placed in the hands of trustees for a specific purpose, have a right to have any surplus not needed for the object, repaid to them, in proportion to their contributions. The claim is founded in equity, and will be enforced in this court.</p> <p>2. The fund is in the control of the association, only for the purposes for which it was raised. It may be disposed of for any purpose within the object for which it was contributed, at any regular meeting of the association, by the voice of the majority of the members present, even if a minority of the whole number.</p> <p>3. But the vote must be for some purpose for which the money was contributed. A majority cannot devote the money of the minority, or even of a single member, to any other purpose, without his consent.</p> <p>4. So, surplus funds, contributed for enlisting men to fill the quota of a city or ward under a call of the President, and to clear the contributors from draft, cannot, by a vote of the majority, be donated to a charitable institution, without the consent of the minority.</p> <p>5. All persons present at the meeting at which the vote is taken disposing of the fund, if no one dissents, are considered as voting with 'the majority for the motion, and assenting thereto; their right to the fund is concluded. AUter, as to those not present.</p> <p>6. Where, under a resolution of the majority, the surplus fund has passed into the hands of new trustees, between whom and the original contributors there is no priority, such trustees are not accountable to them for the fund ; their remedy is against the original trustees only.</p>

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

<p>1. Evidence to show that an alleged intestate left a will, and that therefore the grant of administration was unlawful and void, cannot be received in a suit in this court. -</p> <p>2. The grant of administration constitutes the person to whom it is granted the administrator, whether rightfully or wrongly granted, and cannot be inquired into in this court, collaterally.</p> <p>3. The acts of the surrogate can only be reviewed by appeal to the Orphans Court or Prerogative Court. They cannot be impeached collaterally. The only question that can be made is, whether he had jurisdiction.</p> <p>4. If the supposed intestate is not dead, or if letters lawfully granted to some one else are in existence, the grant is void.</p> <p>5. A deed taken in the name of the wife, for property purchased with her separate estate, is no fraud upon creditors, even if taking title in her name was to avoid any claim by judgment against her husband for debts which he then owed.</p> <p>6. But where the balance of the purchase money for such property, was paid out of the earnings of a business carried on in the name of the wife, hut to which his skill and labor largely contributed, such property will be decreed to be held by the wife in trust for his creditors, subject to her claim for the money advanced out of her separate estate.</p> <p>7. A husband may, as against his creditors, allow his wife to have for her separate use, the earnings of herself and of the labor of tbeir minor children, hut he may not give to her to be invested in her own name, the proceeds of his own business, skill, and labor.</p> <p>8. The law was intended to protect the property and earnings of the wife, and not those of the husband against Ms creditors. And when they mix them so that they cannot be separated, the husband cannot make a distinct gift to bis wife of her own earnings, and they remain as at common law, his property.</p>

<p>1. A mortgage taken with actual notice by the mortgagee, of an existing, unrecorded mortgage, will be postponed in favor of the prior mortgage, and that in the hands of an assignee without notice.</p> <p>2. Bonds and mortgages have never been placed upon the footing of ■commercial paper ; and an assignee takes them subject to all equities between the assignor and other parlies, whether latent or not.</p> <p>3. The payment of illegal brokerage to an agent for effecting a loan, where no part of it is received by the mortgagee, cannot taint the loan with usury.</p> <p>4. The burthen of proof is on the party setting up the defence of usury. He must establish the facts necessary to constitute it, beyond reasonable ■doubt, and by a clear preponderance of testimony.</p> <p>5. Usury' is a defence not favored in equity; when the penalty was the forfeiture of the whole debt, it was considered unconseientious. It cannot be so regarded under the act of 1864; but the forfeiture of interest and costs is yet a penalty, and the rule of evidence adopted both at law and, in equity in case of penalties, must be applied.</p> <p>6. An agreement for the payment of seven per cent, interest, (when such rate is allowed by law,) made in consideration of further forbearance after the mortgage became due, is valid. Subsequent mortgagees take their-securities subject to these changes in the law as to those before them.</p>

<p>This cause -was argued on a motion to dissolve the injunction.</p>

<p>1. A deed for land, tlie legal title to which was not in the grantor at the time of the conveyance, is inoperative at law.</p> <p>% Covenants of warranty in a deed executed hy an attorney, whose power only authorized him to sell and convey, and contained no authority to covenant, do not bind the grantor. Such deed, as against him, must be considered as a deed of bargain and sale, without covenants, and will not, by estoppel, convey after acquired property. It would, however, convey the equitable title of such grantor, if he had any.</p> <p>3. If an agent, under a power of attorney, convey land under circumstances that make the conveyance a fraud on his principal, and the purchaser has notice of the facts, the title in his hands will be affected by the fraud, and equity will not aid him in removing defects in his legal title.</p>

The testatrix was a married woman, and in the absence, and without the knowledge or assent of her husband, in August, 1865, made a will disposing of her real and personal property, and appointing her brother, E. P. Suydam, executor. She had been married but a short time, and had had no child. Her husband, Thomas McElwaine, filed a caveat against the will.

<p>1. It is a settled rule, that on an appeal from a decree of the Orphans Court, no question can be raised in this court, not raised and decided in the court below.</p> <p>2. A petition to the Orphans Court to set aside an account as illegally and improvidently allowed, and also to open the same for mistake and fraud therein, need not specify in what the fraud or mistake consists, or the items alleged to be affected thereby.</p> <p>3. "When an account is opened solely on the ground of fraud or mistake, proved to the satisfaction of the court, the settlement under the 27th section of the Orphans Court act, should be confined to correcting the items in. which the fraud or mistake is proved, and such part or parts of the account as are affected by the change so made. The residue of the account not affected by such proof, should be allowed to stand as settled.</p> <p>4. Bui when an account is set aside as improvidently allowed, contrary to the express provisions of the statute, it should be set aside altogether, and the parties allowed to contest every item of it.</p> <p>5. When the decree of the Orphans Court setting aside the account, is affirmed, exceptions may be filed in the Prerogative Court, and the matter continued there until the final settlement of the account.</p>

<p>1. A right given by the legislature to the owner of the shore on navigable water, to build a wharf in front of his land, does not, by implication, carry with it a right to have, as against the adjoining proprietors, the water-space kept open so that vessels can be moved along the sides of such wharf.</p> <p>2. Nor does the fact that it is highly convenient for vessels in turning to use an open space at the side of such wharf, preclude the owner of the contiguous water-front from extending such front, by force of a legislative license, so as to interfere with such use.</p> <p>3. The decisions heretofore made in this state appear to be based on the concession, that unless the land under the flow of tide water has been actually reclaimed, it belongs, as property, to the public, and as such is subject to the uncontrollable proprietorship of the state; and this doctrine appears to be sustained by the current of decisions in the United States.</p>

<p>1. For the purpose of reclaiming large tracts of lands, the rights of eminent domain and of taxation may be employed.</p> <p>2. Whether a scheme of improvement be of such public utility as to justify a resort, for its furtherance, to the power of taxation and eminent domain, is a matter to be decided by the legislature.</p> <p>3. By the charter of “ The Tide-water Company,” commissioners were to be appointed who were authorized to make a contract with such company, for the draining of large tracts of meadow land, the property of various individuals, said commissioners being also empowered to assess upon said lands, when reclaimed, a just proportion of the contract price — held, that such scheme was illegal and void, inasmuch as the expense to be levied on the land was not limited in amount to the extent of the benefit to be conferred.</p> <p>4. The cost of a public improvement may be imposed on the property peculiarly benefited; but the cost beyond this measure must be levied from the public at large.</p> <p>5. To compel the owner of property to bear the expense of an improvement except to the extent of his particular advantage, is, pro tanto, to take private property for public use without compensation.</p>

<p>The appellant in this court, being the complainant in the court below, was a creditor of Gilliam C. Terhune, and exhibited his bill to set aside a conveyance of certain lands, lying in the town of Hackensack, made by the said Gilliam and wife, to the respondent, Albert G. Terhune.</p> <p>The gravamen of the bill is that this conveyance was for the nominal consideration, expressed in the deed, of $3000, and that it was worth at least $5000; that at the time of such conveyance, the said Gilliam, as was known to respondent, was indebted to the complainant; and the bill charges that the deed was voluntary and without consideration, and was made for the purpose of hindering and defeating the complainant in the collection of his debt, and to defraud him. Albert G. Terhune, in his answer, admits that he knew of the indebtedness above mentioned to the complainant, but denies that the deed to him was voluntary, or without consideration, or was in any way, directly or indirectly, made for the purpose of hindering or defeating the complainant, or any other creditor, &e.</p> <p>The answer further stated that on the twentieth of November, 1863, Gilliam C. Terhune was justly indebted to him in the sum of $2220, for money actually loaned and advanced by him, to the said Gilliam, before that time, and for which Gilliam give him a mortgage; that $1000 had been paid on that mortgage, that afterwards Gilliam became indebted to him in the further sum of $200, advanced by him for the support of his family ; that said Gilliam had given a mortgage to Abraham "Westervelt for $1000, which mortgage had been assigned to respondent, and upon which there was due, at the time of making said deed to him, the sum of $1194.64; that said lands were, at that time, subject to another mortgage, given by said Gilliam to Eobert Campbell, for $500, and that there was due on said mortgage, at the time of giving said deed, the sum of $705.54; that further, said lands were subject to a judgment for $78, which he had to pay ; that the whole of his claim, together with the said encumbrances and interest thereon, amounted to the sum of $3492.04, at the time of giving said deed, and that this made the consideration of said deed.</p> <p>The case was heard by a master, sitting for the Chancellor, on the bill, answer, and proofs. The complainant’s bill being dismissed on the merits, he brought this appeal.</p> <p>The opinion of the master is reported antep. 46.</p>

<p>The opinion of the Chancellor is reported ante p. 77.</p>

The opinion delivered in the Court of Chancery in this cause is reported in 1 C. E. Green 356.

<p>Owen Oberly, of Warren county, died on the first day of September, 1852, intestate, seized of a valuable farm in that county, leaving a widow, the defendant, Anna Maria Lerch, who afterwards was married to the defendant, .Benjamin E. Lerch, and one child, Emma Oberly, an infant three weeks old. His personal estate was not sufficient to pay his debts. Administration of his estate had been granted to his widow, and upon application by her and the defendant, Benjamin F. Lerch, who, after the intermarriage, had been joined with her in the administration, the Orphans Court of Warren county, in April, 1853, made an order for the sale of the farm to pay debts of the intestate, to the amount of $3818.87. On the fourth of September, in that year, the farm was sold for $12,876.49, including the widow’s right of dower. Of this sum one-third was invested on mortgage for the life of the defendant, Anna Maria; and of the residue there remained, on the settlement of the final account on the sixth of April, 1859, $5794.41, above debts and expenses. This balance was paid unto Charles Oberly, one of the complainants, who had been duly appointed guardian of the infant, Emma Oberly.</p> <p>In 1861, Charles Oberly, as such guardian, received $389.59, the infant’s share of that part of the proceeds of the lands of her paternal grandfather, John Oberly, situate in the county of Warren, sold in 1834,'by a partition sale, which had been invested for the dower of her grandmother, Catharine Oberly, who died in 1860; and also $1694.47, her share of proceeds of lands of the same grandfather, situate in Pennsylvania, sold about the same time on like proceedings, and which had been invested for the same purpose.</p> <p>The infant, Emma Oberly, died on the second of April, 1865, aged twelve years, leaving the complainants, Charles Oberly, John F. Oberly, and Robert Oberly, her paternal uncles, and the complainant, Emma Baker, the daughter of her deceased paternal aunt, her only heirs-at-law, besides her mother, who inherited for her life ; and leaving her mother and three infant children of her mother by the second marriage, her next of kin. .</p> <p>In 1865, after the death of Emma, the complainant, Charles Oberly, as her guardian, settled his account in the Orphans Court of Warren county, upon which the balance was 19464.74.</p> <p>In September, 1865, administration of the estate of Emma Oberly, was committed by the surrogate of Warren county to the defendants, Benjamin F. Lerch, Anna Maria Lerch, and Jehiel T. Kern, who thereupon sued the complainant, Charles Oberly, the late guardian, in the Supreme Court of this state, for the whole balance in his hands.</p> <p>The bill in this cause was filed to enjoin that suit. The ■cause was argued in the Court of Chancery, upon a motion to dissolve the injunction. The motion was denied. The opinion of the Chancellor is reported ante p. 346.</p>