Volume 19 — New Jersey Equity Reports

<p>The complainant and defendant, on the 24th of July, 1852, made a contract, under their seals. It recited that the complainant was about to re-construct its railroad between Waterloo and Andover, and to connect it with the railroad of the defendant, and to extend it to the village of Newton; and that the agreement was entered into for the mutual accommodation and benefit of the parties.</p> <p>They agreed with each other, that all freight and passengers transported over the roads of either, or any future extensions or branches of the same, to the point of intersection, and destined for places at the termini or on the line of said roads, or any future extension or branches of the same, should be forwarded by the ordinary means of transportation on said respective roads, at the usual rates, and in no case at higher rates -than charged to others.</p> <p>The third article provided as follows; “ That the settlement between the said companies shall be made monthly, and that the said Morris and Essex Railroad Company should allow and pay to the said Sussex Railroad Company, according to the provisions of the foregoing articles, thirty per cent, of the gross amount of the receipts of the said Morris and Essex Railroad Company for the transportation of all passengers passing on the roads of both said companies) and twenty-five per cent, of the gross amount of the receipts of said company for the transportation of all freight passing on the roads of both said companies, and also the same per centage of all deductions which shall be made to the Morris and Essex Railroad Company for said freight or passengers, by any other railroad company, from the ordinary charges of such other company over whose railroad the said passengers and freight may be transported. The said allowance and payment is not to be made, however, on ar.'. passengers or freight which shall pees over the said Sussex Railroad for any distance less than two miles.”</p> <p>It provided that, for all freight transported over both roads, each should furnish its proportion of cars, according to its length from the intersection; and the defendant agreed to repair the locomotives of the complainant at cost, at defendant’s repair shops, which were at Newark, the other end of its road.</p> <p>The complainant agreed to complete and put in operation its road to Newton, by the first of January, 1855; and if it did not, the defendant could declare the contract void.</p> <p>At the date of this contract, the defendant had completed its road from Newark to Dover, and was actually constructing the extension from Dover to Hackottstown. The passengers and freight on the road of the defendant were carried from Newark to New York by the New Jersey Railroad Company, at a deduction from the ordinary charges of that company.</p> <p>The defendant at that time had, by a supplement obtained in 1836, to its charter granted in 1835, power to construct several branches or lateral roads, and by the eighteenth section of the supplement o'f 1851, to enter into contract with any corporation or individual, “for conveying passengers, goods, produce, merchandise, and other freight, between any point or points on the line of their road and the city of Now York.” By the first section of the last mentioned supplement, they wore authorized to extend their road to the Delaware, at the Water Gap. That extension was never built.</p> <p>After this contract, by the supplement of 1855, it was authorized to build a branch from Hackottstown to the Delaware, at Phillipaburgh, and by the supplement of 1857, to extend its road to the Hudson river; and was authorized to connect its roads, constructed or authorized, with any other railroad, upon any terms to be agreed upon, and to consolidate its said railroads with any other railroad.</p> <p>The brand;, to the Delaware at Pkillipsburgh, has since been built, as has also the extension from Newark to the Hudson, by virtue of the supplement of 1857, and several other acts of the legislature. The complainant completed its road to Newton within the time stipulated in the contract ; and since then the defendant has, at the monthly settlements, allowed and paid to the complainant the thirty per cent, of the amount received for transportation on the defendant’s road, of passengers passing over both roads, and twenty-five per cent, of the amount paid for transportation of such freight on defendant’s road; also the same per cent, of the deduction made by the New Jersey Railroad Company, while transporting such passengers and freight. But the defendant has refused to account for the amounts received for the transportation of such passengers and freight over the extension from Newark to the Hudson, and over the branch from Haokettstown to the Delaware, at Phillips-burgh; contending, that as these extensions were not authorized at the date of the contract, they were not in the contemplation, of the parties, and are not included in the words “ any future extensions or branches,” in the contract.</p> <p>The defendant has also recently changed the gauge of its track, by making it narrower than it wa.s at the date of the contraot, and than the track on the defendant’s road, by means whereof the freight oars of the complainant could not pass over the road of the defendant; which the complainant contends is contrary to the spirit of the contract, and to an agreement to he implied from the provisions of the fourth article of the contract, regarding freight cars.</p> <p>The bill is filed to compel the defendant to account for, and pay, the thirty and twenty-five per cent, of the amount received by the defendant for the transportation of passengers and freight passing over both roads, upon the extensions from Newark to the Hudson river, and from Hacketts-town to Phillipsburgh; and also to compel the defendant to pay to the complainant the amount expended in widening its track and the gauge of its rolling stock or equipment, to correspond with the altered gauge of the road of the defendant.</p> <p>The defendant, by its answer, admits the contract, and that complainant built its road to Newton, as required by it-that the defendant has built the extensions from Newark to Hoboken, on the Hudson river, and from Hackettstown to Phillipsburgh, and uses them, and has transported passengers and freight over them that has passed over both roads, two miles over each; and that it has accounted to complainant for the per oentage on the amount received for such transportation on its road between Hackettstown and Newark, but that it has refused to account for such per centage on the amount received for such transportation boyond those places. And it contends that such is not the true meaning and effect of the contract.</p> <p>The answer also contends, that such contract for a per centage on extensions not authorized, was beyond the power of the corporation, and void; and further, that a contract to pay a per centage of the tolls received on any part of the road, was a contract beyond the power of the corporation, and void.</p> <p>The answer admits the alteration of the gauge, and contends that there is nothing in the contract that prevents altering the same at pleasure; that it was altered for the benefit of both companies and their common traffic, and that complainant knew of and approved the intention fa alter it.</p> <p>The cause was argqed. upon final hearing, on bil] and answer.</p>

Tlie hearing of this cause was brought on upon bill, cross-, bill, and proofs. The bill was filed to foreclose a mortgage given by Berryman and wife upon her farm, to Graham. A cross-bill was filed by Berryman and wife, to have the moru gage set aside as void, and the notes of Berryman, to secure which it was given, delivered up to be canceled, on the ground of fraud in the consideration.

<p>This cause came on for hearing upon petition, answor, and proofs.</p>

<p>A court of equity will not relieve against a conveyance made to prevent the grantor’s property from being sacrificed, and his creditors from recovering their money. And no subsequent promise for the re-conveyance of such property, founded on such fraudulent consideration, will be enforced.</p>

<p>A deed, absolute on its faoe, may be proved by parol to have been given by way of mortgage, but the proof must be clear.</p>

This was a motion to dissolve an injunction, made npon the bill and answer and the affidavits annexed. The bill impliedly admits that Elm street should be sixty-six feet wide. Held: as is the fact in this case, the party in possession should not be ousted, and the land wrested from her, until a paramount legal title to the loous in quo has been judicially established. And she is entitled to retain the possession until that is done.

<p>An injunction will be dissolved upon the answer, only when it denies explicitly the facts upon which.the equity of the bill is founded; it is not sufficient that it denies the inference to be drawn from the facts, or their effect.</p>

This cause was heard on bill, answer, and proofs. In this case, complainant files his bill for partition of house and lot, which belonged to his wife’s father, John Hodson. Emanuel Hodson, one of the tenants-in-common, has filed his answer, in which he sets up that, by an arbitration entered into between him and the complainants, and the other heirs, an award was made, wherein they bound themselves to convey to him the property now sought to be divided.

<p>1. A mortgagee in possession is bound to account for all rents, issues, and profits received by him, and for all waste and destruction of the premises, and must deduct the allowance for these matters from the amount due on his mortgage.</p> <p>2. But such allowances can only be claimed, either on hill to foreclose, or bill to redeem, against a mortgagee in possession, and in possession as mortgagee. lie cannot be called to account in such suits, for trespasses committed by him i nor, if he is in possession as tenant of the mortgagor, under a lease from him, can the mortgagor claim an allowance for rent due on the lease, or waste committed as tenant.</p> <p>3 Parties in executing a contract have the right to depart from its terms. And if they do so, and by consent accept something different in the execution of the contract, they are bound by the acceptance, and cannot look back to the contract.</p>

<p>A complainant cannot dismiss his own bill, as to part of the relief prayed, and proceed with the residue; he must apply to amend.</p>

<p>1. An agreement by an assignee of a bond and mortgage, that he would call at the office of the obligor for the interest, does not make that office ever after the only legal place for payment, and is not, in form or legal effect, an agreement, so as to affect the bond.</p> <p>2. But when, in consequence of such agreement, the obligor failed to pay his interest within the thirty days limited by the condition of the bond, equity will relieve him from the forfeiture of his credit by such neglect.</p> <p>3. A demand by the assignee, after the thirty days had elapsed, although he had not called, as promised, for the payment of the principal, and a refusal to accept the interest, is notice that he did not mean to be bound by his promise. And when the obligor subsequently offered to pay that interest and the interest about to become due, but made no tender of the latter interest within the thirty days after it became due, the complainant was held to be entitled to the principal.</p>

<p>1. If a mbrtgágeá, who holds a mortgage for $10,000 as collateral security for a note of the mortgagor for that amount, at the request of the mortgagor assigns the mortgage to a third person for $7500 in cash, credits this sum on the note, and retains the note, and the balance of $2500 is paid by the mortgagor, such mortgage, in the hands of the assignee, is a valid s'curity for $7500 only, as against subsequent encumbrancers at the time of the assignment. That is the only part of the debt for which it was given that remains unpaid.</p> <p>2. A conveyance of part of mortgaged premises, “subject to the payment 'of all liens now on the same,” does not create a personal obligation on the vendee to pay the mortgage, or any part of it; but it makes the part so convoyed, as against the residue, subject to its proper proportion of the mortgage debt, and to that only.</p> <p>:*>. A. mortgagee, who holds a mortgage on two parcels, one of which is subject to a second encumbrance, will be compelled, first, to exhaust the s crafty on which the second encumbrancer has no lien, or to subrogate the second encumbrancer to his claim on the parcel mortgaged only to him.</p>

<p>Argued on bill, answer, and proofs, by Mr. Vanatta, for complainants, ex parte.</p>

<p>On motion to dissolve an injunction, upon answers filed.</p>

<p>A judgment creditor, purchasing at sheriff’s sale under his judgment, is entitled to have a mortgage upon the property, given by the defendant in execution in embarrassed circumstances, set aside and declared void as against such purchaser, on the ground that it was given to delay and defraud creditors, and without consideration.</p>

<p>This Gause was heard upon, bill and answer.</p> <p>Complainants sue to set aside a sale of land made by the surviving executrix of A. Beach, deceased, whose legatees fiiey are as to one-fourth his estate, to recover their share of personalty, to annul letters granted to the executrix, and appoint a trustee to carry out the will. They urge—</p> <p>1. The sale was void. The power given by the will to the executors was only to. be executed after the death of his son Evert. The last codicil in nowise changes the originally granted power. Power of sale must be olear.</p> <p>Power of sale can only be executed at the time, and in the manner prescribed by the testator. 4 Kent’s Com. 833, and note-, 334/ Co. hit. 113/ Cox v. Day, 13 East. 118/ Wright v. Walceford, 17 Ves. 454/ Blacklow v. Davos, 2 Hare 40/ Champlin v. Haight, 7 Hill 245/ Bichardsonv. Sharpe, 29 Barb-. 222. ^</p> <p>Though the want of power extended only to the northeast portion of the farm, the sale of the other part is likewise void. All was sold at one bid, and for one price. The matter is indivisible.</p> <p>2. The sale was void. It was no sale. The trustee really bought. It was, in fact, a conveyance by the then sole trustee, of one part for the use of her daughter, the other for her own use.’</p> <p>A trustee cannot buy for himself, directly or by any shift,. The cestui que trust may always 'interfere. Scott v. Gamble, 1 Stoekt. 218-236/ Mulfordv. Bowen, Ibid. 797/ Davoue v. Fanning-, 2 Johns. Ch. B. 252 / Michoud v. Girod, 4 How. 552/ Ex parte Bennett, 10 Ves. 381, (Sumner’s ed.,) and cases cited in note.</p> <p>3. The sale is void for irregularity amounting to fraud. Competition cut off, with consent of Wells and wife, by making sale subject to the provisions of the will respecting Evert,</p> <p>Such a condition could not be lawfully imposed. It was a part of the trust to manage the farm for the support of Evert, and as to surplus, for legatees. The executrix could not shift the duty.</p> <p>4. The circumstances show actual fraud — that is, as regards these complainants.</p> <p>■ By a combination of the other parties in interest, they just made a new will, and carried out a plan by which all got their shares, except the complainants. Jt was a clear combination to defraud the Lyells.</p> <p>If the case is not one of oppression and tyranny, it certainly illustrates the greatest forgetfulness of the rights of others — relatives of all, beneficiaries of the trustee.</p> <p>The testator was wise. He left two hundred acres, with a house, to support one imbecile man. The executors accepted that trust. He saw it was more than enough. He said, manage, cultivate, keep in order, and invest surplus; then, at Evert’s death, sell and divide. Had the executors done this, what a difference to these legatees. Instead of this they try to devolve their duty on another, sell the larjd for what will be given for it clogged with this condition, divide the proceeds among their confederates, and let the Lyells go.</p> <p>A proper decree, were the bill so filed, would be to estimate what would be the value of this farm, had they done their duty, and made them pay one-fourth to the Lyell branch.</p> <p>5. The sale should be set aside, a new trustee appointed to execute the will, a new sale had of the northwest part, and accounts should be taken of the value of the southeast part, and one-fourth be paid the Lyell branch.</p> <p>6. Mrs. Wells has no equity against such a decree. She is no bona fide purchaser without notice. She was privy to our rights arjd wrongs, and shared all risk the Lawrences took, Even were she not, she had notice — constructive and actual.</p> <p>If the sale and purchase were without collusion, the purchaser is not entitled to relief, because the sale was made contrary to the intention of the testator, who gave the power of sale. Iieidv. Shergold, 10 Ves. 381; Cockerell v. Cholme-ley, 1 Russ $ My. 418.</p> <p>7. Henry 0. Kock has no equity against complainants. He had constructive notice by the record. lie is ch u-ged with actual notice, and makes no sufficient denial. Story’s Rq. PI, § 806 ; 1 Story’s Eq. Jur., § 400-410.</p> <p>8. As to the personalty. The executors of Mrs. Rattoone are responsible, at least for what they admit came to her hands -,$3140.</p> <p>She cannot say that was no more than her share. Having accepted the trust, she cannot abandon to others all duty, and simply take care of herself. This would be gaining advantage by her own wrong.</p> <p>9. Is not the estate of Mrs. Rattoone liable for deficiencies on general principles ?</p> <p>Letters testamentary of A. Beach are dated October 2d, 1828. All the executors filed the inventory — acting jointly, swearing jointly.</p> <p>What did not Mrs. Rattoone receive ? Was it not her duty to see that Mr. Lawrence, if he took the bulk of the property, did his duty ?</p> <p>Ought she not to have seen to the sale of ths northwest part of the farm, and the proper disposition of the proceeds ? 2 Williams on Ex'rs, (5th Am. ed.,) 1656; Styles v. Guy, 1 Mae. § G. 422, 433; Williams v. Nixon, 2 Beav. 475; Booth v. Booth, 1 Beav. 125; Lincoln v. Wright, 4 Beav. 427.</p>

<p>1. A delay of fifteen years in calling for the specific performance of a parol contract for the conveyance of land, without any attempt to enforce it in the lifetime of the contractor, is a circumstance of great weight against the party seeking performance, and will render necessary more strict and full proof, and a closer scrutiny of the evidence.</p> <p>2. Part performance will take a contract out of the statnte of frauds, when it has been in part performed in such manner that a refusal would be a fraud on the other party. But for this purpose, the contract itself must be clearly proved, and the acts of part performance' must be referable to the contract alone.</p>

<p>1. A creditor cannot file a hill to set aside a transfer of property fraudulently made by his debtor, until he has a judgment or execution such as would give a lien on that property, if not transferred.</p> <p>2. At common law, a judgment or execution gave no lien upon the choses in action of the debtor, or debts due to him. But by the act of March 7th, 1850, to prevent fraudulent trusts and assignments, and the supplements to the chanoery act, a creditor, upon the return of an execution, nulla bona, has a lien upon the choses in action of his debtor, and can maintain a suit to set aside a fraudulent assignment.</p> <p>3. Although a purchaser of property transferred by a debtor to defraud his creditors, pay full consideration, and have no notice that the property is transferred to him for that purpose, yet if the circumstances are such from which he must have inferred that such was the ohject, the sale will be set aside, as against a creditor.</p>

This case was heard on an ex parte argument on part of the complainants, upon the bill and proofs taken upon an onlor for that purpose, on default of an answer, on the 20th daj of April, 1865, the time for answering having expired on the 10th day of March, 1865.

<p>Argued upon final hearing, on pleadings and proofs.</p> <p>The mortgage held by defendants was given first, dated April 12th, 1866. Little & Dana gave their mortgage to complainants, May 2d, 1866, dated April 30th, 1866, and advised them then, of the mortgage held by defendants. Neither mortgage being filed, Collins, Atwater & Co. lent the mortgagors more money, and received another mortgage as security, dated August 3d, 1866, amounting to $25,000. Collins & Co. had no notice of DeCourcey’s mortgage. This mortgage was filed in Camden, where the goods were, August 11th, 1866. On the 28th of September, 1866, complainants were informed of this mortgage. After seeing it, they filed their mortgage in Camden county. November 2d, 1866, they filed a copy in Union. One of the firm of Little & Dana, the mortgagors, lived in Union. The firm had its business office in New York, and there the other partner resided.</p> <p>The question is, which of the two mortgages has priority ?</p> <p>The act (1864) says: “Every chattel mortgage, not accompanied by immediate delivery, and followed by actual and continued change of possession, shall be absolutely void against the creditors of the mortgagor, and against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy, shall be filed as directed in the act,” viz. in the office of the clerk of the county where the mortgagor, if a resident of the state, resides at the time of execution, and if not a resident of the state, then in the county where the mortgaged property is then located.”</p> <p>1. The mortgage is by a firm. The firm resided in New York. So, filing the complainants’ mortgage in Camden was good, and it was filed before the other there. Taiman v. Hawxhurst, 4 Duer 221; Miner v. Fredonia, 27 N. Y. 156.</p> <p>2. But where Collins & Co. filed their mortgage is unimportant. The contest is not between them and a subsequent mortgagee, but between them, bona fide subsequent mortgagees, and a prior mortgagee, who not only did not file his mortgage, but concealed its existénce.</p> <p>The statute expressly makes the mortgage of complainants void against them. Subsequent registry could not help them. Berry v. Mutual Ins. Co., 2 Johns. C. B. 603 ; 2 White § Tudor s L. C. in Fq. 182 ; Jackson v. Campbell, 19 Johns. B. 281; Coster’s Ex'rs v. Georgia Bank, 24 Ala. 37/ Day v. Clark, 25 Vt. 398 ; Irvin’s Lessee v. Smith, 17 Ohio 226/ Stull’s Lessee v. Spencer, 1 Peters 552/ Tiffany v. Warren, 37 Barb. 571; Den v. Biehman, 1 Green’s B. 44 ; Meech v. Patehin, 14 N. 7. 71; Thompson v. Van Veehten, 6 Bosw. 373; S. C., 27, W. F. 568; L.ewis v. Palmer, 28 N. 7. 271.</p>

<p>1. A life tenant is bound to keep the premises in repair, not excepting dilapidations occasioned by Ordinary wear and tear in the proper use of the premises.</p> <p>2. The reversionary estate Of an infant will not be sold because there may be a great advantage in the sale to the tenant for life, when the benefit to the infant is doubtful or inappreciable.</p>

<p>1. An executor has no power to sell the lands of his testator, unless directed to do so by the will, either expressly, or by implication.</p> <p>2. The appointment of one as executor of a will that directs lands to be sold, does not, of itself, confer on him the power to sell. But if the executor is directed by the will, or bound by law, to see to the application of the proceeds of the sale, or if the proceeds, in the disposition of them, are mixed up and blended with the personalty — which it is the duty of the executor to dispose of and pay over — -then a power of sale is conferred on the executor by implication.</p>

<p>f. Where a deed expresses a consideration, though merely nominal, and i never paid, no use results to the grantor, and parol proof that the convey- I anee was intended to be in trust for the grantor, will not raise a trust. '</p> <p>2. A trust estate cannot be sold by execution.</p> <p>3. That a deed absolute on its face was really given as a security for a debt, and intended only as a mortgage, may be shown by parol proof; but the proof must be very plain where the debt does not remain, or is considered as paid by giving the deed.</p> <p>4. A verbal promise by the grantee to the grantor, that he would re-convey the land upon receiving back the amount of his debt, will not be enforced ; much Jess against a purchaser for valuable consideration, without notice.</p>

<p>1. A suit brought in New York upon a bond, by a person to whom it was assigned as collateral security for a less amount, in which only the amount for which it was assigned as collateral security was recovered, and to which the obligee was no party, does not satisfy and extinguish the bond, as against the obligee. And in a suit brought by the absolute as-signee of the bond and mortgage subsequent to such collateral assignment, he will be entitled to a foreclosure of the mortgage for the residue due upon it, beyond the amount recovered.</p> <p>2. The effect of such recovery will be determined by the law of the state of New York. And the well established rale, that the proceedings in any suit will not affect any one but a party to it, will be assumed to be the law of New York, until it is shown that a different rule is established there.</p>

<p>On exceptions to report of commissioners of partition making partition, and proofs taken in support of them.</p> <p>The case arises upon exceptions filed to the report of partition made by the commissioners.</p> <p>The court is asked to set aside the report upon the ground of inequality of division, and appoint new commissioners, although there is no charge of partiality or fraud. 2 Dan. Oh. Pr. (Perkins' ed.) 1334} Riggs v. Dickinson, 2 Scam. 438; Story v. Johnson, 1 Y. O. Ex. R. 538; Manners v. Charlesworth, 1 M. $ K. 330.</p>

<p>This cause was brought to final hearing on bill and answer.</p>

This case was argued on final hearing, upon pleadings and proofs. The facts of the case fully appear in the Opinion of the Chancellor.

<p>On argument of order to show cause why the complainant should not be removed or suspended from the exercise of his office as executor, and a receiver be appointed.</p> <p>The papers show that all the original inventory has been converted into, money, except one small bond and mortgage of Elias Bishop and wife, for $525, and except the Starr bond of $6240; and the main question in the principal cas© is, whether that is paid by the assets of Mrs. Leddel.</p> <p>Those assets complainant brings into court, and asks the court to, settle the title to. them. If adjudicated to, belong to the estate, they will constitute the hulk of the estate. If adjudged to Mrs. Leddel’s administrator, they will constitute the bulk of her estate. They are the Subject matter of the suit, and all parties interested in them, in either event, are before the court. This subject matter is a fixed- one, and is in court. No process is required to bring it here. Complin-ant brings it here himself. It consists mainly of his own obligations.</p> <p>The case then, on this motion, is simply that complainant brings into'court his own unpaid check and promissory note, and asks the court to say to which of the parties they belong. The question is, whether, if it be proper to collect or secure such check and note, pendente lite, a cross-bill is necessary for that purpose.</p> <p>It is really not a case where a receiver is necessary in order to protect the fund. A receiver, properly speaking, is only necessary when there are rents and profits to receive, or a mass of accounts to collect. ' These matters involve som© extended relief.</p> <p>In the case in hand, the court can protect the fund by a . ímple order that it be paid into court. Edwards on Receivers ILL This the court may and should do on its own motion, if it appears at any time necessary in order to secure the fund.</p> <p>Robinson v. Hadley, 11 JBeav. 614, was a ease where one executor complainant sought to take a portion of the fund out of the hands of his co-executor defendant, by the machinery of a receiver, and it was held, in absence of any action of the parties beneficially interested, that the co-executor defendant could not turn around in same suit, and apply same machinery to the plaintiff.</p> <p>This case is different. There the fund was not in court. Here complainant comes into court with his own notes and check, and asks the defendant to interplead about them. He treats them as cash. The court, perceiving that they are not casii, ought, in a bill in the nature of a bill of interpleader, to make them cash.</p> <p>Of what use would a cross-bill in this case be ? What end would it subserve ? Every party is before the court. The fund is before the court. All we ask is, to change its form. Such suit would not bo brought to hearing. JEdwards on Receivers 530. When the fund was ordered paid into court, or the receiver appointed, the suit would have accomplished its end.</p> <p>I admit I cannot find a precedent for the practico I have adopted; neither can I find such a case reported. I can find no precedent against it. I can find no case where a cross-bill has been filed by a defendant, praying a receiver against a complainant executor who files his bill for a settlement.</p> <p>If an executor should file a bill to settle his estate in chancery, and among his assets should appear a promissory note of a person in doubtful or insolvent circumstances, would the court require a cross-bill, as part of the machinery necessary to secure that note? How would the case differ, if the complainant himself were the maker of the promissory note ?</p> <p>The rule is, that no independent affirmative relief can be granted to a defendant, except on a cross-bill. But here no such relief is asked. It is not relief to a defendant, to ask the court to preserve the very subject of the suit, made so by the plaintiff’s own act.</p> <p>•The bill which counsel on the other side contends should be filed to preserve the subject matter of this suit, could not be named or classified by the descriptions of different kinds of bills, as found in the treatises. See Mitf. on Plead., eh. I. It is not a cross-bill, and no case can be found where such a bill has been filed, though the occasion for it must have been frequent. _</p> <p>Suppose the testimony taken on the main issue made by the bill and answer disclosed complainant’s insolvency, and we should file a bill for a receiver, could that testimony be used on the motion for his appointment?</p> <p>A bill for receiver is used where one party complainant, having a purely equitable title, claims property in possession of a party defendant, having the legal title, and being rightfully in possession. In such case, of course, the defendant cannot turn around in same suit and claim similar relief as to other property in hands of complainant. In such case, the machinery of a receiver is used to take possession of property not previously in court.</p> <p>The present case, as above shown, is quite'different.</p> <p>If a party in the position of a stakeholder of a horse, should file a bill of interpleader against two parties claiming it, would the court require a bill to be filed by defendant, upon which to found an order, if necessary, for the keep or sale of the horse,pendente lite?</p> <p>The case, at last, is- simply that complainant files a bill of interpleader, and, instead of paying the money into court, puts in his own promissory notes and check, not drawn against funds. Now, is it possible that a bill must be filed by the defendant, in order to convert these checks and notes into cash? I submit a bill is unnecessary.</p>

<p>When, to a, suit for the foreclosure of a mortgage, the defence set up is payment, the burthen of proof is upon the defendant, and the proof must be clear.</p>

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

<p>This cause was heard on bill and answer.</p>

<p>1. Bills must be signed by counsel. Signing the name of counsel is not a compliance with the rule, either in spirit or letter. .</p> <p>2. A mere allegation that the husband does not “provide his wife with support,” will not entitle her to relief under the tenth section of the divorce act.</p> <p>3. Threats of extreme cruelty never executed, petty tyranny, and constant alarms by a husband, will not, of themselves, necessarily call for the interference of the court by divorce a mensa et thoro. Whether they amount to extreme cruelty depends upon attending circumstances.</p>

<p>1. A bill is not demurrable for multifariousness, which unites several matters, distinct in themselves, but which together make up the complainants’ equity, and are necessary to complete relief; nor, on the ground of misjoinder of several complainants,, where either of them would not be entitled to proceed separately for relief without making the others defendants.</p> <p>2. All parties in interest in the subject matters of a suit, and who are necessary to the protection of other parties to the suit, are necessary parties,</p> <p>3. An unconditional delivery of goods without payment, at a cash sale, does not pass the title and hind the sale as to a purchaser upon false and fraudulent misrepresentations.</p> <p>4, This court has no discretionary power in the matter of costs upon a demurrer.</p>

<p>1. A deed absolute on its face, given to secure the payment of money, is only a mortgage. And a subsequent parol agreement that the deed should become absolute upon the payment of a certain sum, will not release the equity of redemption from the lien of a judgment entered between the agreement and the payment of the money.</p> <p>2. An instrument, that by its own provisions or an agreement made at its execution, conveys property as security for a debt, cannot be converted into an absolute deed, except by such means as would have been adequate to convey the absolute estate in the first instance.</p> <p>3. An equity of redemption is a legal estate, and can be conveyed or released only by writing.</p> <p>1. Where the grantee of lands alleged to have been conveyed to him in fraud of creditors, has a bona fide claim for a large amount, which the conveyance was honestly made to secure, and the whole fraud is m a subsequent transaction, he will be allowed to retain his priority to the amount of his debt, and the property will be sold to pay him, in the first place, the amount of nis claim, and next, the amount due judgment creditors.</p>

<p>•. This cause was argued ou final hearing, upon bill, answer, replication, and proofs.</p>

<p>On rule to show cause why injunction should not issue.</p>

Argued on pleadings and proofs. The bill is filed: 1st, to quiet the title of complainants, that is to establish their right, and is to some extent in the nature of a bill for specific performance. - 2d, for injunction. The defendants deny that they ever made any such contract. The contract is of a character that courts will not aid if they can help it. It is on its face, a contract by which no money is to be paid to the defendants, only a royalty.

This was an appeal from the report of the master sustaining the exceptions of the complainant to the defendant’s answer.

<p>. On motion to dissolve an injunction üpOn answer filed.</p>

The complainant, Susan S. Winans, alleges that she sold and conveyed to the defendant, on the 15th day of April, 1856, a lot of land containing sixteen acres, situate near Elizabeth, in the county of Union; that the value of this land, as understood and fixed between the parties, was $1700; that the defendant represented to her that it was encumbered by two mortgages, one to D. 0.

<p>1. A suit at law will not be enjoined becaus'e of the refusal of the court to postpone the trial.</p> <p>2. A tenant for years, who offers to pay off a mortgage debt, has the right to redeem. He has not, perhaps, strictly the right to demand a written assignment of the bond and mortgage, but he stands by redemption in place of tbe mortgagee, and will be subrogated to his rights against the mortgagor and tile reversioner. He has the right to have the bond and mortgage delivered to him nncanceled, which, in such case, is in equity, and may be at law, a complete assignment.</p>

<p>1. The erection of buildings by the husband, on the leasehold lands of his ■wife, and collecting the rents, is not such disposition of them as will take away the wife’s right of survivorship, and enable the husband to dispose of the leasehold estate by will.</p> <p>2. An actual disposition by sale, lease, or mortgage, or contract for such object, is necessary to take away the wife’s right of survivorship in a leasehold estate. A mortgage or a sale of part, or a lease of part, or for a less term, only bars the wife pro tanto; her right of survivorship remains in the equity of redemption, and the residue of the premises or term.</p>

<p>1. A wife has the right to have one third of the proceeds of sale of the equity of redemption, under a foreclosure, invested, and the interest paid to her after her husband’s death; but she will not be entitled to any interest during his life.</p> <p>2. A decree of this court for a divorce a mensa et thoro, directing an annuity to be paid to the wife, and that it should be a lien from its date, upon the husband's lands, is not a judgment so as to bind the lands as against strangers to the suit, when no abstract thereof has been filed in accordance with the fifty-ninth section of the chancery act.</p> <p>3. A conveyance of real estate before sequestration issued, although after the decree upon which it is founded, is valid, in the absence of any proof of malafides.</p>

<p>Richard Stockton, by his will, directed the residue of his personal estate to be paid over to trustees, upon the following (among other) trusts : “ And upon the further trust, that after the determination of my wife’s interest in said fund, the same bo divided into four equal parts, and that they pay over the interest, from time to time, of one fourth part unto my daughter, Mary Harrison ; one fourth part unto my daughter, Caroline Rotch ; one fourth part unto my daughter, Julia; and one fourth part unto my daughter, Annis Thomson. And I further direct and will, that the above bequests to my married daughters, including also my daughter J ulia, if she should be married, be secured for their own separate use, respectively, without being under the control or liable for the debts of their husbands, and that their receipts be deemed good and effectual, notwithstanding their coverture. Which trusts are to continue for the joint lives of my said married daughters and their husbands, respectively ; and if they outlive their husbands, then in trust for my said daughters, respectively ; and if they die before their husbands, then to their children, if they have any, in equal shares ; and if they die without leaving children, or the representatives of children, then in trust for my surviving daughters, in equal shares.” Mrs. Thomson died without issue, in the lifetime of her husband, and leaving her sisters, her surviving. The other daughters survived their husbands. Held — that at Mrs Thomson’s death, one third of her share vested absolutely in each of her surviving sisters; and that the share of each of them, (including the part derived from Mrs. Thomson,) on the death of her husband, vested in her absolutely.</p>

<p>This cause was argued on an order to show cause why an injunction should not be granted.</p>

<p>1. A purchase? at a sheriff’s sale, when not a party to the original suit, is held to be made a party by the purchase, so far as to be subject to the jurisdiction of the court on questions arising from tiie sale. Upon the same principle, he may be held to have a standing in court sufficient to be heard upon the subject of the disposition of the purchase money, while still in court, when part has been paid by hini, and he claims the right to have it restored.</p> <p>2. Where a party has b'ecomo the purchaser at a sheriff’s sale, at the request of the mortgagor, and has paid mohey on the purchase, he cannot, as against a mortgagee whose claim would be unsatisfied if the money so paid was restored to him, have such money repaid, on the ground that the mortgagor misrepresented the amount he Would bo compelled to pay.</p>

<p>This cause was argued upon the pleadings and proofs, at a special term, held at Morristown, in July, 1868. The facts of the case sufficiently appear in the opinion of the Chancellor.</p>

<p>On motion to dissolve injunction.</p>

<p>1. A contract, under seal, embracing the whole subject matter of a mrmer contract not under seal, supersedes the former.</p> <p>2. A participation in the profits of any business or undertaking, to constitute one a partner, must be a general participation in the profits as such-A person who is not a principal, has no control of the business, and no power as a partner in the firm, but who is employed as a superintendent or agent, receiving by way of compensation for his services a certain share of the profits, is not thereby a partner.</p> <p>3. Such relation does not, as between the parties, constitute them partners, and generally does not as to strangers. If the profits, however, are so greatly out of proportion to the services rendered, as to show that the arrangement is a shift to avoid responsibility, and that creditors are injured by the abs'raclion of so large a part of the avails of the business, it- will be held as to them, that such person is a partner.</p> <p>4. But where a party agrees to serve another for a part of the profits to bo derived from the business, but they are by the express terms of the agreement to be paid for his services, he cannot call for an account as partner: but he has a right to an account of the profits, and to the aid of this court in discovery, and taking an account of profits.</p> <p>5. When a party under a contract to perform a certain work at a certain rate, has performed part, and the performance of the residue was prevented without the fault of either party, he is entitled to payment in proportion, at the rate agreed upon for the whole.</p>

<p>1. An answer, in stating the particulars of a transaction charged and inquired into by the bill, is responsive.</p> <p>2. .An agreement, between a purchaser at a sheriff’s sale and the defendant in execution, in consideration of a transfer of certain stock, to bid the amount necessary to pay the indebtedness, and if the defendant in execution could raise the money before the time fixed for the delivery of the deed, that the property should be conveyed to him, will not be enforced in equity, if the party asking performance has failed to comply substantially with his part of it.</p> <p>^ 3. A deed, taken in lieu of a mortgage, for the purpose of depriving the i grantor of his right to redeem, will sometimes be declared to be a mortgage' ^ where there is at the same time an agreement to re-convey. But such \ construction is never made, where there was no antecedent debt to be i secured' thereby, or no money advanced for a loan, and where it appears that no loan was intended.</p> <p>4. Time is frequently considered not of the essence of an agreement to convey lands, and in such case, a delay will not bar the right to specific performance. But where the value of the property has materially changed, or where great financial changes have materially altered the relative value of money and land, time will be considered material, and a party will not be allowed to lie by until the change sets in his favor, and then have specific performance.</p> <p>5. To entitle a party to the aid of this court in enforcing specific performance, he must have shown himself ready, willing, and eager to perform his part.</p> <p>6. The fact that the complainant, when called on to perform the contract on his part, has refused or omitted to do it, will bar his claim to specific performance.</p>

<p>Argued on rule to show cause why an injunction should not issue.</p>

<p>The main question involved in this suit, which is an amicable one, is as to the validity of a power of appointment to “ benevolent, .religious, or charitable institutions,” given by the will of the testator to. his widow. The cause was argued upon the bill and answers.</p>

<p>On motion for a receiver, and to compel delivery and assignment of property.</p>

<p>1. An agreement, made in the presence of an attorney, between his client and a third person, is not a privileged communication.</p> <p>2. The answer of a defendant, that he lias seen the answer of another defendant in the cause, and that the same is true, cannot avail to make such answer evidence for himself, when the answer referred to was not then hied, and there is nothing to identify it with the answer afterwards filed by such co-defendant.</p> <p>3. A levy on sufficient property, under -a fieri facias, prima facie satisfies the judgment.</p>

The bill was filed by the executors of H. C. Jones, deceased, for directions as to the execution of the trust reposed in them by the will. The cause was heard upon bill and answers.

<p>This case was brought to hearing upon bill, answer, replication, and proofs.</p>

The defendants, on July 1st, 1863, leased a large wharf, called “ the Baxter lot,” situate at Kaighn’s Point, adjoining the works of the complainant, to the complainant, for two years, at $900 per annum, payable quarterly, with an agreement that the complainant might purchase the wharf for $18,000, at any time during the term of said lease. A short memorandum to this effect was signed by William H. Fore-paugh, the agent of the defendants.

This was an application for a re-hearing of the cause oa its merits, it having been, decided for the complainant upon the final hearing.

<p>1. Where a wife is made a party defendaat with her husband to a bill for relief, the husband and the party seeking relief are both incompetent witnesses.</p> <p>2. To take a ease out of the statute of frauds, on the ground of part performance, the agreement must be clearly and definitely proved.</p>

<p>1. An unexecuted agreement to compromise or settle a debt for a fixed sum, is no defence to a snit, either at law or equity.</p> <p>2. A conveyance of lands by a debtor to his wife, through the medium of a third party, without consideration, the debtor having no other property to meet his obligations, is void as against creditors. As between the debtor and his wife, it is valid.</p>

<p>In an application for divorce on the ground of desertion, the circumstances of the desertion must appear.</p>

This matter came up on a motion to overrule exceptions - to the bill, which had been referred to a master. The application was made on two grounds; first, that exceptions could not be taken to a bill for impertinence, but the proper practice was to apply to the court to strike out the impertinent matter; secondly, that the defendant had been guilty of laches in not procuring the master’s report, the reference-having been made more than six months ago.

This is a bill filed for specific performance of an agreement for the sale of two several tracts of land, covenanted to be conveyed by the defendant to the complainant.

<p>This matter was argued on a rule to show cause why an injunction should not issue against the defendants.</p>

<p>Argued on bill, answer, replication, and proofs.</p>

<p>Equity-will not relieve a party against his own neglect or default in performing his contract) if such relief will seriously injure the other party _</p>

This was'hn application to dissolve an injunction granted to restrain the defendants, who weré commissioners under special acts of the legislature, to improve the streets iu Irvington, from selling the complainant’s lands for an assessment. The assessment was made for a plank sidewalk laid in front of the complainant’s lands. The complainant contends that the strip on which the sidewalk was laid, was not part of the public highway, but his own private property.

<p>This case was argued upon bill and answers.</p>

<p>Argued upon pleadings and proofs.</p>

Eules to show cause why an injunction should not issue in the above cases, had been granted, and the defendants having filed their answers, leave was given to take depositions to be used at the hearing on the rules. The alleged injury, against which relief was asked, being the same in both cases, by arrangement of counsel the two causes were argued together, and the same depositions used in both.

<p>1. A conveyance to two, without the words “ to be held as joint tenants and not as tenants in common,” creates a tenancy in common, without sur-vivorship, even when it is to them as trustees. There is nothing in the statute to control the plain meaning of the words, which must have effect, unless this leads to an evident absurdity, or defeat the design of the act.</p> <p>2. A subsequent statute cannot change or divest estates, vested before its passage. The act relative to trustees, passed April 1st, 1868, so far as intended to be retrospective, is inoperative.</p> <p>3. Lands held in trust, upon the death of the trustee, descend according to the rules of the common law, to the eldest son ; they are not within the statute of descents.</p> <p>4. Where lands are conveyed in trust to sell, both trustees must unite in the conveyance, in order to execute the trust. If one conveys, it will only transfer his legal estate, subject to the trust. Whether both trustees must join in one deed : Quaere.</p> <p>5. One tenant in common cannot convey a particular part of the common property, or an easement in it, as- the right to dig ores, to the prejudice of his co-tenant. Such conveyance is void as to the co-tenant, but good as against the grantor.</p> <p>6. A grantee of the right to dig ores, from one tenant in. common, cannot call for a partition of the premises.</p>

<p>1. A majority of the directors of a corporation, in the absence of any regulation in the charter, is a quorum, and a majority of such quorum when convened, can do any act within the power of the directors.</p> <p>2. The minutes of a corporation need not be entered up in -the handwriting of the secretary ; it is sufficient if they are entered under his direction and approved by him. And a resolution regularly made at a corporate meeting, if proven, is binding, though never entered upon the minutes.</p> <p>3. A mortgage or other transfer of the property of a corporation, is void if made when the corporation is insolvent, or after it has suspended business, although the corporation was solvent and had not suspended business when the resolution was passed authorizing the execution of such mortgage or transfer.</p> <p>4. The object of the “act to prevent frauds by incorporated companies," is to prevent any corporation, when insolvent, or in contemplation of insolvency, from preferring any of its creditors.</p>

<p>1. A promise to accept part of a debt already due, in payment óf the whole, if paid by a certain day, is without consideration and void, as nudum pactum; and if such promise w'ás hot, void at 1'aW, it Would not be enforced in equity, where the object in agreeing to accept a less sum was payment before it could be collected by suit, if the payment was not made or tendered at the time stipulated.</p> <p>2. A solicitor has no right to accept a part of a debt <n payment of tire whole, without express authority of his Client; and his receipt fo-r it as payment in full, when given without authority of his client, and that fact was known to the debtor, will be treated as a nullity.</p>

<p>1. If, on a negotiation for a loan, where six per cent, was the only lawful interest, the lender requires and accepts for one hall’ of the loan the assignment of a mortgage on property out- of the state, which carries seven per cent., this does not constitute usury.</p> <p>2. If a mortgagee sells and conveys part of the mortgaged premises to a purchaser who does not pay the price to him, such part will be sold separately, and if the proceeds of the sale of the residue of the mortgaged premises, together with the unpaid purchase money of this part, are sufficient to discharge the mortgage debt and Costs, the surplus of ihe proceeds of such part above the purchase money inust be paid to such purchaser, or his assigns.</p>

<p>1. The common council of Jersey City consists of a board composed of ten aldermen. Their only existence is as a board, and they can do no valid act except when organized and acting as a board, and such act must b.e by ordinance, or resolution, or something equivalent thereto.</p> <p>2. When an ordinance of the city properly passed, authorizes the common council to make contracts for the removal of night soil from the city, such contract must be made by the common council as a board or body, by a vote or assent of a majority of the body; and if suoh contract is authorized by a resolution, it is a resolution which affects the interests of the city, and must be presented to the mayor for his signature.</p> <p>3. A contract for such purpose, made by a committee of the common council, with no authority but such resolution not presented to or approved by the mayor, is made without authority and is void ; and part performance of such contract, at the request of the committee, will not give validity to it, although it might obviate the defect of its being made by parol, when required to be in writing.</p>

<p>On motion to dissolve injunction.</p>

<p>1. If coxfimissionera of partition, in a sale of the lands by them, give a deed for one parcel, containing a provision that no buildings shall be erected thereon to darken the windows of a building standing along the line upon an adjoining parcel, sold and conveyed by them at the same time, the’purchaser takes subject to such easement for the benefit of the adjoining parcel, although such condition was not in the conditions of sale,; and he objected to its being put in the deed. He- is bound by the acceptance of a deed with such condition.</p> <p>2. Words in a deed, over which a crooked line is drawn with a pencil’ as if for cancellation or erasure, but which are not actually canceled or erased, form part of the deed; and if the purchaser accepts the deed, and has it recorded, he will be bound by such acceptance, notwithstanding he insisted that such words should not be iri the deed, and was told by the grantor that they had been canceled. His only remedy is by suit to reform the deed.</p> <p>S. Commissioners of partition, when directed to sell, have power to sell one part, with an easement in another part annexed to it, and to sell the servient parcel subject to such servitude.</p>

<p>Argued upon pleadings and proofs.</p>

<p>On motion to dissolve injunction.</p>

<p>Where the notice required to be given to an absent defendant was entitled in the cause, and not directed to the defendant, nor mailed within twenty-days after the date of the order, such defendant was held not to be within the jurisdiction of the court, and that no decree could bo made against him.</p>

<p>1. The appointment by the Orphans Court of commissioners to set off dower, should appear by the records of the court, or by an order or decree signed by the judges, or one of them.</p> <p>2. The act requires the commissioners to make their report at the next term after their appointment. This provision is not so far imperative as to make void the proceedings, if not strictly complied with, yet it is so explicitly directory that it requires an order of the court made upon notice, to authorize a report at a subsequent term.</p> <p>3. Setting off dower by metes and bounds, in lands in which the husband was only seized of an undivided moiety, is a radical defect. His interest in the lands, and also the fact that the lands in which dower was set off were those in which the widow had a dower right, should appear.</p> <p>4. Where the proceedings in the Orphans Court were thus radically defective, the widow was allowed her election to have the proceedings dismissed and new proceedings instituted in that court, or to amend her petition and proceed in this court.</p>

Argued on two applications for guardianship; one by S. J. Turner, the paternal grandfather, and the other by D. McNamara, the maternal grandfather.

<p>The opinion of the Chancellor is reported in 3 C. E. Green, 108.</p>

<p>1. An action at law brought by the payees against the personal representatives of the maker of a negotiable note, valid upon its face, given without consideration, upon an agreement that it should be given up to the maker upon a contingency which has happened, will be perpetually enjoined, and the note ordered to be delivered up. Such relief would be given without the express agreement to deliver up the note.</p> <p>2. A demurrer to a bill for discovery and relief cannot be sustained, if the complainant is entitled to the relief, though not to the discovery.</p> <p>3. The husband being rightly joined, it is no objection to a bill for discovery of matters in which the Wife only is interested, that the defendants are husband and wife.</p> <p>4. Handlong v. Barnes, 1 Vroom 69, and Bird v. Davis, 1 McOarter 477, approved.</p> <p>5. A husband about to leave this state, and who had separated from and refused to support his wife, gave his note, upon the agreement that it should bo re-delivered to him if he returned alive. Held — that such agreement was not contrary to public policy, though made with intent to deprive his wife of all interest in his estate in case he died before his return.</p> <p>6. The weight of authority is, that in bills for discovery it is not necessary to allege that the facts, a discovery of which is sought, are within the exclusive knowledge of the defendant.</p>

On the 28th of May, 1857, the respondent, Whittemore, conveyed and assigned- to Messrs. Held: the conveyance to the assignees invalid against the judgment creditors, and refused to permit the mortgages to be revived. This was the decree appealed from.

The opinion of the Chancellor is reported in 3 0. E. Green, 260. Richard Fetters, by his last will, left all his estate to his three daughters, subject to the provision made by him for his widow.

The petition, which was filed in the Court of Chancery, in this case, sets forth, that the petitioner had been deserted by his wife, who had left his house in Philadelphia and, taking her five children with her, had gone to live with her father at Manchester, in this state; that petitioner had gone to Manchester, but that his wife would not see him, and that this was the only occasion since their separation, on which he had seen his children; that since their separation his…

By an agreement in writing, dated 5tli March, I860, Thomas P. Johnson, one of the defendants, agreed to sell to Joseph Harrison seven eighths of certain lots of lands in Newark, for $2848, the deed to be delivered on or before the first of May, in the same year; the sum of $37.50 to be paid on the delivery of the deed, and the residue to be secured by a mortgage upon those lots, and also upon certain other land, which, by an agreement of the same date, said Harrison agreed…

This is an amicable suit, prosecuted by the relator who is the bishop of the Roman Catholic church of the diocese of Newark, against the defendants, who are the executors of the will of Nicholas Moore, late of the city of Newark, deceased. The will of the testator bears date on the 29th day of March, 1865.

<p>Bill to foreclose mortgage to secure bond conditioned for payment of principal in five years from date, with interest payable quarterly, and containing an agreement, that should default be made in the payment of the said interest, or of any part thereof, on any day whereon the same is made payable, and should the same remain unpaid and in arrear for the space of thirty days, then and from thenceforth, the principal sum, with all arrear-ages of interest, should, at the option of the obligee, his executors, administrators, or assigns, become and be due and payable immediately thereafter, although the period limited for the payment thereof might not then have expired. Held—</p> <p>1. That though time is of the essence of the contract, equity will not enforce a forfeiture of the credit if the oinission to pay interest within the time specified has been occasioned by the acts or declarations of the complainant.</p> <p>2. If the omission to pay interest within the time limited has happened by the negligence of the defendant, the forfeiture has been incurred and the contract will be enforced.</p> <p>3. The court will not enforce a forfeiture of credit if the complainant is himself in fault, or has misled the defendant.</p>

The injunction in this case restrains the defendant, Marshall, from selling or removing from the farm conveyed to him by the defendant, Cheeseman, known as the Swope farm, any marl, and from digging any marl on it except for the use of the farm. The defendants have filed their answer, and move to dissolve the injunction. The defendant, Cheeseman, was, in 1841, seized of a farm in the county of Gloucester, known as the Swope farm, on which there were valuable beds of marl.

This cause was argued in the Court of Chancery upon the pleadings and proofs.

The defendant, Bramhall, in 1861, was the owner of a tract of land in Hudson, which had been laid off in town lots, marked on a plot called map of Sherwood, Hudson county, New Jersey.