Volume 20 — New Jersey Equity Reports

<p>1. Although a husband may give to the wife her services and earnings as against his creditors, when she carries on a separate business, without his assistance, with her o#n means and on her own account, yet in all cases where a business is carried on by a husband and wife in co-operation, and the labor and skill of the husband are contributed and united with those of the wife, the business will be considered as that of the husband and not that of the wife, and the proceeds will not be protected for her as against his creditors.</p> <p>2. The fruits of the wife’s labor and skill, under such circumstances, are not her separate property viithin the terms or intention Of the act for the better securing the property of married women.</p> <p>3. Even if that act gave a wife the capacity to accept a gift of property from her husband, she could not be allowed td retain such gift as against his creditors, when made under circumstances which would prevent it from being sustained in favor of a stranger.</p> <p>4. A conveyance taken in the name of the wife, of property purchased With Means of her husband, when in embarrassed circumstances, in order to screen it from his creditors, will he set aside as against future creditors.</p> <p>5. A married wotoan who had no separate property, and had never carried on any separate business, made a power of attorney to her husband to carry on, in her tame, a hotel. The husband was, at the time, extensively engaged in similar enterprises, and had become embarrassed. The husband negotiated and .executed, in the name of his wife, acting as her attorney, articles of co-partnership with S., for conducting the hotel intended. Land and buildings for such hotel were subsequently purchased, and the deed for them was taken in the individual names of the wife and of S., her partner. A part of the first instalment of the purchase money was paid from money alleged to have been borrowed by the wife for the purpose, and a part was paid by the husband from his own means. The complainants advanced money to the husband, to he used in fitting up the hotel, upon the faith of his representations to them that he was the purchaser of a half interest in it. They now file a bill, praying that the wife may be decreed to hold the title to said property as trustee for her husband, and to convey it so as to be held subject to theif remedy at law. Held— That the circumstances proved an intent on the part of the husband and wife to take the title in her name for the purpose of delaying and defrauding his creditors, and that the complainants were therefore entitled to the relief prayed.</p> <p>6. Where one who has purchased lands upon an agreement that a part -of the price shall he secured by a mortgage tb he given upon the delivery (of the deed, commences, without the written consent of the vendor, to erect buildings upon the land before the actual delivery df the deed and mortgage, the mortgage, if afterwards given, pursuant to the agreement, and duly -registered, has preference over any lien claim which may have been filed for labor or materials furnished towards the buildings, although furnished before the execution of the mortgage.</p> <p>7. A contract to convey land, although in writing; does not amount to a consent in "writing to erect buildings, so as to make the estate of the vendor subject to a lien for a building erected by a tenant or other person. Hence in tjh-is-case, the estate of the vendor is not affected by the lien, but only the equitable estate of the purchaser.</p> <p><8. In order to preserve the lien of a chattel mortgage beyond the first year, the re-filing a c'bpy required by law must be done during the thirty days immediately preceding the expiration of the year. A re-filing before the commencement of the thirty days is unavailing. SuBh a mortgage must be postponed to 'the claims of subsequent creditors, pürBhasers, and mortgagees-; but as-against'the -mortgagors themselves, it is valid-.</p> <p>9. The mortgagees dn a -chattel -mortgage upon hotel furniture, which ■contained a provision that the mortgagors should retain the possession until default in payment, or until the chattels should be seized by execution or attachment, upon learning that a levy had been made, attended, by their attorney, at the hotel wherein the property was, and demanded possession. The mortgagors gave the attorney the keys, went with him through the hotel, opened the doors of the various rooms, and exhibited the furniture. It was then arranged that the property covered 'by the mortgage should be considered as stored for the mortgagees, and the attorney took away a napkin as a symbol of delivery' of the whole. Held — ■ That this transaction could not aid the claim of the mortgagees; it was not an actual and continued change of possession.</p> <p>10. Although, for want of due filing or actual change of possession, a mortgage given by partners upon partnership property has been postponed to the claims of subsequent creditors of the firm, yet equity will give it priority over claims of creditors of individual partners. As against the mortgagors themselves, omission to file, or to change the possession, does not impair the mortgage; hence, any surplus which remains after discharging valid liens for firm debts must be applied to discharge the demand of thft mortgagees, that being a partnership debt, in preference to individual debts of either partner.</p> <p>11. The law of this state does not forbid debtors, though insolvent, to prefer creditors by making payments of money or transfers of property, or by giving mortgages or confessing j udgments. And, although a preference thus created may operate to delay and hinder other creditors, yet, if not created for that purpose, but to secure or pay bona fide debts, it is lawful.</p> <p>12. A mortgage executed by the partners of an insolvent firm, upon property of the firm, to a trustee for the holders of bonds to a large amount, issued by the firm to secure such creditors as were willing to accept the bonds as payment of, or security for their debts, is not void by reason of the provisions of the assignment act, but is valid to the extent of protecting all holders of such bonds who appear to be bona fide creditors for value. The bonds given to creditors for sums larger than their true debts, can be enforced only for the amounts really due. So far as these bonds are voluntary gifts, they are not good as against creditors.</p> <p>13. The rule of courts of equity and bankruptcy, when partnership assets are to be administered there, that they must be applied to the partnership debts before any part can be appropriated for the partners, or to pay their individual debts, does not operate to defeat a lien fairly and lawfully created by the partners upon partnership assets in favor of individual creditors, before proceedings for a judicial administration wore commenced.</p> <p>14. Partners have the power, while the partnership assets remain under their control, to appropriate any portion of them to pay or secure their individual debts. A mortgage given by them to secure individual debts fairly due, is not rendered void by the mere fact that it operates to give individual debts a preference over demands against the firm ; nor will such mortgage be set aside for that reason, by a court of equity, unless, perhaps, when created in contemplation of insolvency to give an improper preference.</p> <p>15, If, in any case, one who has loaned money upon the credit of an individual partner, could have established a demand therefor against the firm, by proof that the money was borrowed and used for the benefit of the firm, the right to do so is lost by proceeding, with knowledge of the facts, to the recovery of judgment and the issuing of execution against the individual partner.</p> <p>16. The only interest in property of the firm which can be reached by virtue of a creditor's bill, founded upon such a judgment and execution, is the share of the individual partner against whom the judgment is rendered, in the assets, after payment of all partnership debts.</p> <p>IV. An execution on a judgment against partners for a partnership debt may be levied upon the individual property of either partner, although the partnership property is sufficient to make the debt.</p> <p>18. Beal property, purchased with partnership funds, for the uses of .the partnership business, must be regarded as partnership assets, within the rules of equity governing the application of assets to debts in controversies relative to the priority of creditors of a firm over those of individual partners.</p>

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

The complainants seek to foreclose a mortgage on lands at Perth Amboy, against Thomas, the mortgagor, and Martin, who holds a second mortgage on the premises; they are the only defendants, and both, in their answers, set up that complainants’ mortgage is paid.

<p>1. After making a bequest to his wife, the testator added these words; “ In case she should lose any part of her property before mentioned, and need more than she has of her own to support and maintain her comfortably, then, and in that case, so much of this money deposited and accumulated as she shall need for her comfortable support, I order my executors to draw and pay to her, yearly or half yearly.” The widow needing more than she had of her own to support- herself comfortably, though she had lost none of her property, filed a bill for the construction of this clause. Held — That having lost none of her own property, she was not entitled to any part of the bequest.</p> <p>2. “ And” will be construed “ or,” only to effect the evident intent of the testator, never to gratify the wishes or desires of a legatee, or to effect what might, in itself, seem more just or reasonable.</p> <p>3. There is no power to change the words in a will, unless such change is necessary to effect the intent of the testator, apparent on the face of the will or from surrounding circumstances.</p> <p>4. The legatee seeking a construction of the will to gratify her own wishes, and against the obvious intent of the testator, bill dismissed ; legatee to pay her own costs.</p>

<p>1. Where, by a will, the executor is to provide “a good and sufficient support” out of the testator's estate for his son, his son's wife and children, and for the education of the latter, under the direction of their father, and the relations of the family change by the separation of the son and his living apart from his family, it is the duty of the Court of Chancery to decide for whom the executor is bound to provide, whom he is authorized to aid, and the circumstances under which he may render such aid, and to intimate limits for the exercise of his discretion.</p> <p>2. A testator, by his will, gave the residue of his estate, in fee simple, to his two grandchildren, and such other children as his son Henry might afterwards have, to be divided among them when the youligest should arrive at the age of twenty-one years, subject to the provisions that his son Henry should be furnished, out of the rents and income, with a good and sufficient support during his life, to be paid him by the executor ; also, that a good and sufficient support should be furnished to the wife of his' son Henry, during her life. He also charged his estate with the comfortable support and education of his grandchildren, under the direction of his son Henry, and directed that if either of them should desire, or his son Henry should think proper, ample means should be furnished to educate one or more for the learned professions. Henry left his wife and family, and resided apart and distant from them, and ceased to pay any attention to them. The executor then filed a bill for directions as to his duty, and to settle the rights of the respective devisees under the will. Held—</p> <p>1. That the direction to furnish the son with a liberal support must have a far different interpretation from that which would be given to it if he were performing his 'duty of taking care of his family and educating his children.</p> <p>2. That the support and education of the grandchildren should be out of the income. The amount to be furnished must rest, largely, in the judgment and discretion of the execut'or, upon consultation with the mother ; but he is not bound to contribute the whole income, if less will answer.</p> <p>3. That the discretion confided by the will to the son must be exercised by the executor.</p> <p>3. The court suggested, subject to th'e judgihent of the executor, and to the discretion confided in him, (but ndt to be entered in the decree.) that it would be a proper exercise of his judgment to allow the wife to occupy the farm, (she to keep it in repair and provide a home where the minor children might be supported, and to which thosfe of age might resort,) and to receive one third of the net income of the estate; to allow the husband one third of the net income; to allow one sixth for the minor children, to be expended under the direction of the mother; and one sixth for the liberal education of any that might desire it; these two Sixths to be expended under the direction of the father if he would, in good faith, undertake it.</p> <p>4. A " good and sufficient support,” to be furnished to the wife of testator’s son, must be construed to mean such as is proper for a mother and head of a family, having the fortune and station héld by her husband and his children.</p> <p>5. Where an executor files a bill for directions as to his duties under a will, and no factious or unnecessary opposition or dtists are occasioned by any defendant, costs and proper counsel fees for both parties will be allowed out of the estate.</p>

<p>1. A paper signed by A, by which he agrees that B, in consideration of $1 paid, shall have, for thirty days, the refusal of certain land therein designated, and that he will convey the same in consideration of $20 per acre, $500 to be paid on the execution of the deed, and the balance in a mortgage on the land, with interest at six per cent., no time being named for delivering the deed, nor any time for which the mortgage shall run, is not a contract, but only a refusal or offer of the lands to B at a certain price, and cannot be converted into a contract unless accepted within the thirty days.</p> <p>2. An acceptance of an offer in writing to convey land within a certain time, in consideration of a price named, may be communicated by mail, but it must be actually placed in the post-office, directed to tho proper place ; if directed to a place where tho party to be bound by it only sornetimes.resorts, it must be proved to have been received.</p> <p>3. An offer in writing to convey land within a certain time, must be accepted within the time fixed.</p> <p>4. A contract, any material part of which remains to he settled by negotiation between the parties, will not be enforced in equity on a bill for specific performance.</p> <p>5. Where there was a written offer to convey laud within a time fixed, at a price named, of which a portion named was to be paid on tho execution of the deed, and the balance in a mortgage on the land, with interest at six per cent., Held— That tho want of designation of any lime when the great bulk of the consideration (that to be secured by mortgage,) was to be paid, left a material part of the contract to be settled by negotiation ; and hence, even if such offer had been accepted, a decree for specific performance would not be made.</p>

<p>1. A condition in a city ordinance granting permission to a street car company to lay rails in the streets, that another street car company named should be permitted to use the track on terms to be settled by the city council, is not a contract with snob other company, but only between the first company and the city.</p> <p>2. The municipal government has power to discharge the company to whom such permission was granted from the condition contained in the contract, and when once discharged, cannot again make such company subject to the condition.</p> <p>3. An ordinance fixing the terms on which such track is to bo used by the second company, made on their application to adjudge such terms, is not in the nature of an award, but the exercise of a power reserved by the city in granting the permission, and maj' be executed by ordinance without hearing or notice.</p> <p>-1. Where such ordinance fixes the terms, and declares that if the second company does not comply with thém within a time proscribed, the first company should be released from the conditions and obligation of the ordinance of consent, those conditions and the contract to comply with them are discharged by the refusal of the second company to perforin the terms prescribed, and the city cannot revive the contract.</p> <p>5. The power reserved by such a contract in an ordinance is determined by its exercise: having been once performed, it is at atn end.</p> <p>6. The cars on a horse railroad have, when in motion, the right of way upon their own trahk, both as agáinst those whom they meet and those who go in the same direction at a speed that would delay the cars.</p> <p>7. The legislature, or the municipal government where the power is delegated to it, have the right to set apart a proper portion of a street for a, street railroad, if such a road will accommodate the public travel for which the street was designed ; and it makes no difference that the road is constructed and operated by an incorporated company for its own gain. The fare charged is, as in turnpike and plank roads built upon a public highway by legislative authority, only another way of keeping Up and maintaining the highway.</p> <p>8. The iron rails laid by a t-ailroad company in a public street are the property of the company, and the use by another railroad company (authorized to lay a railroad of like character in the same direction for part of the route) of such rails, constantly or at regular intervals, is clearly an appropriation of such property, and unlawful.</p> <p>9. A railroad track is clearly private property, and cannot fairly be considered, in any just sense, devoted by tbe makers to public uses. Ho person, therefore, natural or corporate, can, at his mere will, appropriate the track of a horse railroad company to his own private use and convenience, by adapting his carriage to such use for that purpose.</p> <p>10. A provision in an ordinance authorizing a railroad company to lay a track in the streets of a city, requiring, as a condition of such authority, that another railroad company should have the joint use of such track, Upon compensation to be agreed on, was within the power of the common bouncil; they had the right to require such condition. Query. — Whether the common council could have imposed, as a condition of their consent, that such joint use should be allowed without compensation.</p> <p>11. Fraud or misrepresentation is not sufficient to avoid the act of a legislative body.</p> <p>12i This court will not permit the property of one person or corporation to be taken by another, without compensation first paid. In almost every like case, compensation could be made in damages, yet equity always interferes by injunction, and dobs not permit the property to be taken and the party put to his action.</p>

<p>1. Courts of equity will always compel discovery in aid of prosecuting or defending suits at law ; and in order to make such discovery of use on the trial at law, will restrain that suit from proceeding until the discovery is had. This jurisdiction is not taken away by the fact that courts of law have been clothed with powers to compel discovery in such cases by tlie oath of the complainant.</p> <p>2. A motion to dissolve an injunction restraining a suit at law will not be granted before answer filed, on the ground that the bill on the face of it shows no equity, where a discovery is sought, or where the bill alleges that the obligations sued on at law were given without consideration, and were fraudulently obtained, and the affidavits annexed to the bill aro sufficient prima facie proof that fraud was used in obtaining them.</p>

<p>On rule to show caíase why an injunction should no.t issue.</p>

<p>1. A mere separation of partnership property, and a taking into possession by each of the partners of the portion which it was agreed should be his upon the execution of an agreement between them, does not divide it, or vest the title in the individual partners until the agreement is executed.</p> <p>2. Where one of the partners reluses to execute such agreement, and he is enjoined from disposing of the partnership property, the mere separation of the property, and his having it in his possession, will not relieve him from an attachment for contempt, in selling it and taking the proceeds to his own use.</p> <p>3. Nor does it relieve him that counsel, without the papers necessary t-o form an opinion, or time to deliberate upon the question, and hearing only such partner’s version of the affair, expressed an opinion that the injunction did not restrain him from disposing of the property.</p>

On motion to dissolve an injunction issued against the defendants. The motion was made upon the bill and answer, and the affidavits annexed. The injunction was to restrain the defenfendants, who were the managers of a meadow drainage scheme, from purchasing mills known as Dunn’s mills, out of the funds or at the expense of the meadow owners. The complainants are a majority of the owners of the meadows to be drained.

<p>A creditor holding no judgment or other lien upon property, a mortgage whereon is sought to be foreclosed, but whose only claim is upon an award by which the mortgagor was adjudged to owe him several thousand dollars, is not a necessary party to the bill to foreclose, and can not be admitted to defend the suit, upon petition. He could not properly be made a defendant. It does not affect the case, that the submission provided that unless the mortgagor should pay the amount which should be awarded within a time limited, or give a mortgage to secure its payment, that the submission might be made a rule of court. Case distinguished from Melick v. Melick’s JEx'rs, 2 O. JS. Green 156.</p>

The bill in this case was for a divorce d mensd et thoro, on account of extreme criiolty, and for alimony. The cause was heard upon bill, answer, replication, and proofs, on part of the complainant. No proofs were offered on part of the defendant, except by cross-examination of the complainant’s witnesses.

<p>1. On a bill for divorce, proof that the parties charged were together in a place where, and at a time when, it was possible for them to have been guilty of adultery, is not sufficient to warrant a decree ; nor will this defect of proof be supplied by evidence that defendant had many years before lived in concubinage with a married man.</p> <p>2. The testimony of a witness as to facts which, if true, would establish adultery, will not avail to support a bill for divorce in the face of the explicit denial of the charge by the defendant and her alleged paramour under oath, when the cross-examination of the witness shows that no reliance can be placed upon his testimony, and his character for veracity is seriously impaired.</p>

<p>1. "Where a mortgagee releases from his mortgage a term in the mortgaged premises created by a life tenant, and the term is afterwards surrendered by a deed for that purpose, executed by the mortgagee, the tenant for life, and the grantee for years, and the release is extinguished, and the mortgage restored to its former situation, this leaves the relation of the parties as it stood before that term was created, and released from the mortgage.</p> <p>2. When money is raised by mortgage or other pledge of a wife’s property, for the benefit of her husband, the wife will be deemed a mere security for the husband, and she or her heir will be a creditor of the husband or his estate, in place of the mortgagee, to the amount of the debt discharged out of her estate.</p> <p>3. If a husband borrows money on the security of the wife’s estate, as the money is under his power, it is presumed, in law, to be taken by him, unless the contrary is shown : but parol evidence is admissible to show for whose benefit the money was raised.</p> <p>4. Where money is borrowed by a husband on the security of the wife’s estate, and she intends to give the amount raised to him, or discharges him from it, his estate will not be charged (as between her estate and him). And this intention may be proved by parol, or inferred from the attending circumstances. So the husband will be discharged when he lays out the borrowed money in improvements on the wife’s lands, with her approval.</p> <p>5. But where a husband had advanced money which had been laid out in improvements upon the wife’s lands, with her approval, and his wife told him to sell the property to repay himself, and he borrowed money, and, to secure it, joined with his wife in mortgaging other lands owned by her — Held,.</p> <p>1. That so much of the mortgaged premises must be sold as would be sufficient to pay the principal of the sum borrowed.</p> <p>2. That, as the husband, being life tenant (by curtesy) in possession, was bound to keep down the interest, that oharge, if not paid by him, must be made out of his life estate in the residue of the premises not sold, before any land of the heir of his deoeased wife oould be sold for that purpose.</p> <p>6. On the foreclosure of a mortgage given by a husband and wife since deceased, in her lifetime, to secure money borrowed to repay the former for advances by him to improve lands of the wife, as between the husband, he being in possession as tenant by the curtesy, and the infant heir of the wife, the principal will be made by a sale of so much -of the mortgaged premises as may be required to pay it; the interest and a proper shave of the costs will be made by a sale of the life estate of the tenant by the curtesy; and if that should not sell for sufficient to pay the interest and such costs, the estate of the infant must be sold. Hence, in such a case, the life estate of the husband in the residue was directed to be sold, and if it was not bid up to the amount of the interest and a proper share of the costs, it was ordered to be bid in and purchased by the guardian,-in the name and for the benefit of the infant; and, in that case, so much of the estate in fee, of the infant, in the land not sold to pay the principal, was ordered to be sold, including the life estate, as might be required to pay the interest and a proper share of the costs. After such sale, the infant will, by subrogation, be entitled to receive the moneys so raised out of his property for the debt of liis father, out of the life estate of his father, and will be entitled to receive the deed for such life estate bought in for him, without any other consideration than the sale of his property.</p>

<p>1. The debts of a married woman holding an estate secured to her separate use by the act of 1852, when contracted by her for the benefit of her separate estate, or for her own use on the credit of that estate, will be charged by a court of equity upon the separate estate, and payment enforced out of it.</p> <p>2. But such debts are not a lien upon her separate estate until made a lien by a decree of a court of equity; and the lien arises by virtue of the decree.</p> <p>3. A married woman cannot charge her separate estate, held under the act of 1852, by an appointment, in writing, as she could formerly charge estates held by trustees for her, subject to her appointment; but can only convey or charge it by deed executed with her husband, and duly acknowledged upon a separate examination, except in cases where her husband is insane, or in state prison, or living separate from her by judicial decree.</p> <p>4. The deed or mortgage of a married woman for lands in this state, though duly acknowledged, if made without her husband, is void.</p> <p>5. Independent of the statutory provisions, an estate can be devised or given to a married woman for her separate use, directly, without the intervention of trustees; and in that case the husband will, m equity, be considered a trustee for the wife as to any estate which might by law vest in him. -But in siich case the wife can not convey lands so devised to her separate use, without her husband joining in the deed, or without the acknowledgment required by a married woman.</p> <p>6. A mortgage, by a wife upon her separate property, to secure a debt contracted for the benefit of that property, though void by reason of her husband not joining with her in its execution, and for want of a separate acknowledgment, will authorize a court of equity to charge that debt upon her separate estate generally. The giving of the mortgage shows the intention to charge her separate estate with it.</p> <p>7. Where a mortgage on lands purchased by a married woman was given (and this was so stated in it), by her and her husband, to secure part of the consideration money, and was registered; but tbe mortgage as to the wife was void, because she had not been examined apart from her husband, Ed&-</p> <p>1. That the recording was proper to give the debt priority upon the estate which might vest in the husband at the death of his wife.</p> <p>2. That such recorded mortgage might be sufficient notice to a subsequent mortgagee, of the lien for unpaid purchase money on the estate of the wife. (In this case, actual notice was proved.)</p> <p>8. The vendor of land has a lien for unpaid purchase money ; and this lien is good as against subsequent purchasers for valuable consideration, with knowledge that it is unpaid.</p> <p>9. The taking of a note, or bond, or mortgage, will not be held evidence of a waiver by vendor, of a lien on the premises conveyed, for purchase money. -</p> <p>10. Where a bill to foreclose contained no allegation that the complainant’s mortgage was given for unpaid purchase money, or that subsequent mortgagees, made defendants, had notice of it before the mortgage to them, and the priority of the complainant’s mortgage depended on these facts, and they appeared clearly in proof — Held, that the bill was defective, and no decree or relief founded on the facts above stated could be given unless they were set forth in the bill; but that the bill might be amended.</p>

<p>1. The Court of Chancery has no jurisdiction to determine as to the validity of an election of the directors of a private corporation, and whether certain persons claiming to he, and acting as directors, are such. It can, therefore, grant no relief that is merely incident to that power.</p> <p>2. The only adequate remedy is in the courts of law, which have power to adjudge the office vacant, and to compel the admission of a person properly elected. The statute (Nix. Dig. 171, $ 19,) fully confers this power.</p> <p>3. The summary and efficient proceeding under that statute, removes all difficulty arising from any doubt as to the application of the remedies of quo warranto and mandamus, to corporations merely civil.</p>

<p>1. An injunction will not issue where the right of the complainant, which it is designed to protect, depends upon a disputed question of law about which there may be a doubt which has not been settled by the courts of law of this state.</p> <p>2. So far at least as incorporeal rights are concerned, it has been determined in this state, that an injunction cannot issue to prevent the lands in which these rights exist from being taken by a corporation, for public use, without compensation being first made.</p> <p>3. Whether the owner of land along the shore on tide waters has any right in the shore or the lands under water, by reason of adjacency, or by the provisions of the wharf act, is a disputed question, not settled by the courts of law in this state, and an injunction will not be granted to protect the shore owners in such rights.</p>

<p>The bill in this, cause was filed to foreclose a mortgage given to the complainant by tbe defendants upon lands in the county of Cumberland. An answer was filed in behalf ol’ the defendant, Thomas K. Birgess, admitting the execution of the bond and mortgage, but alleging that they were usurious and praying that the complainant might be decreed to recover only the amount actually loaned by him, without interest or costs of suit. The complainant filed a replication. No testimony was taken on either side. The cause was set down for hearing on bill, answer, and replication. No one appeared at the hearing on behalf of the defendants, and a decree was made in favor of the complainant for the full amount of his mortgage, principal and interest, with costs. Execution was issued on the decree, and at this term application was made to the court to open the decree as having been improvidently made, and to set aside the execution.</p>

<p>1. Though a bill may be dismissed for want of equity, the court will not make such an order without argument and examination, though the master may, from liis view of the evidence, recommend in his report that course to be taken.</p> <p>2. A trustee cannot, either directly or indirectly, become the purchaser of property held by himself in trust, at or by means of his own sale. The property after such sale remains, as before, vested in the trustee.</p> <p>3. If a trustee exchanges trust property for other real estate, and takes the title thereto in his own name, such property so acquired will bo con sidored trust property to the extent of the value of the trust property exchanged therefor. And if no deed has been made by the trustee, and the trust property is afterwards forfeited and given back for breach of conditions, to the trustee, that will enure to the benefit of the trust fund, not of the trustee.</p> <p>4. If a trustee doals with trust property as his own, he takes upon himself all the risk and responsibility, without the right or prospect of personal benefit, for ho must be liable for the value of the trust property and all that is gained by it.</p> <p>o. Where tho master's report is in a great measure based on erroneous views with regard to some important matters referred to him, it will be referred anew, so that the report may be in conformity with the views of the court.</p>

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

<p>1. A sheriff or master charged with the conduot of a judicial sale, has a considerable latitude of discretion in prescribing such terms of sale as will exclude puffers and fraudulent bidders, and secure the confidence of real purchasers in offering their bids.</p> <p>2. The sale by a master of an extensive hotel at a summer watering place, of large value, will not be set aside, because a bidder was required» before his bid was accepted, to deposit $5000, that being loss than the ten per cent, required to be paid by the purchaser — the property being so situate as to attract bidders from a distance, whose character and solvency would be unknown, and the requirement being justified by the fact that a sale of the property on a previous day was prevented by the inability and refusal of the bidder to whom it was struck off to comply with the conditions; nor because, at the adjourned sale, the price realized was $97,500, the bid at the first sale at which it was struck off having been $150,000, it appearing that some of the hidders at the first sale, including the one to whom the property was struck off, were puffers, and unable to pay the ton per cent, to be paid down, and that one, who, if ho was a bona fide bidder at $130,000 at the first sale, and could have complied, did not bid at the second sale.</p> <p>3. The employment of puffers by an owner of property offered for sale at auction; or, in the case of a judicial sale, by creditors, in whose behalf property is offered for the purpose of increasing the price by fictitious bids, is a fraud upon honest bidders; and a buyer at such a sale may be relieved! from his purchase.</p> <p>4. It seems that the fact of a puffer having bid at the sale will not avoid the sale, if, after the hid of the puffer there is a bid by a real purchaser before the bid at which the property is knocked down; but that in all cases where the bid next preceding is that of a puffer, the sale is voidable by the purchase. Query. Whether it would not be more just, in all cases where sham bidders are employed by those interested, to enhance the price, to hold that this is a fraud upon purchasers, and that the sale is void.</p> <p>5. When a bidder, at a master’s sale, declares to the master that he is not prepared to comply with the terms of sale, it is not improper for the master to refuse his application for leave to withdraw his bid, and to direct the property to be struck off to him, and thereby to compel him to announce openly that he cannot comply.</p> <p>6. It is not unlawful for persons who wish to make a joint purchase of property about to be offered at auction, to agree together that they will authorize one person to bid for it upon their joint account.</p> <p>7. It is illegal for persons intending to purchase at auction, to combine not to bid against each other; but the rule is confined to cases where there is an agreement not to bid, and does not extend to cases where several persons join to make a purchase for their common benefit, without an agreement not to compete, or to a case where several creditors, no one of whom would be willing to purchase a property of very large value, unite to purchase.</p> <p>8. The fact that an agreement to make a joint purchase may indirectly operate to prevent the parties from competing, is not enough to render the transaction unlawful; to have that effect it must appear that the object of making the agreement was to avoid competition.</p> <p>9. When personal property, such as the furniture of a hotel, is to be sold by a receiver, under a decree of this court, the question whether it shall be sold in bulk or by parcels, is within the discretion of the officer. If his discretion was fairly exercised, the sale will not be set. aside because the court may think that a better price would have been realized by a different mode.</p> <p>10. At a judicial sale, where the value of the articles, or a considerable part of it, does not consist in their constituting one establishment, and where there would be purchasers to bid on them separately, the general jule is to sell them separately. But where their value, as constituting a whole establishment, is greater than when separated, and where the articles, when separated, would not excite competition, it is more advantageous to sell as a whole.</p> <p>11. A sale by a receiver, of the furniture of a hotel, immediately after a sale of the land and hotel thereon, made in the fair exercise of the receiver’s discretion, ought not to be set aside because the furniture was not on view at the time of the sale, but was locked in the rooms of the hotel, it not appearing that any one who desired to inspect it before the sale was refused leave ; nor because a printed catalogue was not furnished to bidders ; nor because a brief time was set for the removal of the property by the buyer, it appearing that a necessity existed for a prompt delivery of possession of the building to the purchaser of that.</p>

<p>1. The provisions of the various statutes governing the collection of taxes in the city of Elizabeth, stated and explained.</p> <p>2. The act of March 4th, 1863, {Pamph. L. 109,) relative to the city of Elizabeth, was an amendment of the charter of March 13th, 1855, {Pamph. L. 217,) and did not repeal it except so .far as its provisions were inconsistent with it; and a tax sale by virtue of the provisions of the act of 1855, for taxes levied in 1862, and in accordance with those provisions, is not inconsistent with the provisions of the act of 1863, providing for sales of taxes to be levied under it. Such tax was a lien, a right acquired, and the provision for sale was a remedy given, and expressly saved by the reservation clause; section 124, of the act of 1863.</p> <p>3. An assessed tax in.the city of Elizabeth is prior to a mortgage. A tax sale and a conveyance pursuant thereto, under the statutes governing the collection of taxes in that city, made subsequent to a mortgage upon the premises, where six months’ notice is not given to the mortgagee, is liable to redemption by him.</p> <p>4. Upon a foreclosure of the mortgage, the amount paid at a tax sale by one claiming under the tax sale, and interest, will form a lien prior to that of the mortgage. The land will be decreed to be sold free from th» lien for taxes, and the purchaser at the tax sale will be paid first.</p> <p>5. It is not necessary, in order to establish title to lands purchased at a, tax sale, conducted by a constable as authorized by statute, to prove that the constable who conducted the sale was properly elected and sworn, and-gave bond. The court will take judicial notice of the officers of the state.</p> <p>6. The statute (Nix. Dig. 864,) and supplement {Pamph. L. 1869, p. 1238,): directing that recitals in a deed given by a public officer shall be prima fade evidence of the truth of the facts recited, do not at all affect the title: under the deed, but only change the rule of evidence as to the manner of proving the facts required to constitute a valid sale ; and it applies where a,deed given before the passage of the act is offered in evidence.</p>

<p>1. The consent by the heirs-at-law, that a widow should take charge of the real estate of her deceased husband and collect the rents, taking such charge, and the appropriation by her of one third of the whole rents to her own use, operate as an equitable assignment of dower to the widow.</p> <p>2. Where, in such a case, the widow occupied the mansion-house of her deceased husband, upon a bill filed by the heirs for an account of the rents-</p> <p>, and profits, and a reference to state an account, she was properly charged with the value of the mansion-house from the death of her husband. She was not entitled to occupy the mansion-house until dower was actually assigned, without rent: a virtual assignment had already been made.</p> <p>3. A widow who claims one third of the rents of the lands of her deceased husband, other than the mansion-house and messuage, must account 'for the value of the part occupied by her.</p> <p>4. At law, damages could not be. recovered for wrongful detention of dower, if the widow died before dower was assigned, or if she accepted the dower assigned by the heir, or by proceedings in chancery; but the. value of the dower, in such cases, is recoverable in equity.</p> <p>5. But when a widow occupies the whole mansion-house and messuage, the only land out of which dower is claimed, from the death of the husband, she is .not entitled to one third of the value, in addition, as damages.</p> <p>6. Whore a widow comes into equity to claim the value of her dower, in a case where such value could not be recovered at law, she will be required to do equity, and will be allowed only to recover the value of the dower detained; that is the value of one third of the whole estate, deducting the value of the part occupied by her.</p> <p>7. When the estate is ordered to be sold, and the widow agrees to accept a gross sum in lieu of dower, and dies while a part of the estate is still unsold, her estate in that portion is determined by her death.</p> <p>8. If a widow dies after her election to accept a gross sum in lieu of her dower, and before a report as to the amount to he allowed in gross, the fact of her death does not limit the probable duration of her life to the time of her death, but it may be taken into consideration in estimating the probable duration of her life, especially when her death was from a disease she had previously had, and there is reason to believe that she had never been wholly free from it. Evidence coming to light after such election, which shows that at the time of election the life was of less value, must bo regarded; but not of an injury suffered or disease contracted after the election, wbicb might affect the value.</p>

This cause came up on exceptions' by the defendant to the report of the master, to whom it was referred to state an account of the amount expended by the complainant for building on the premises mentioned in the bill, and of the amount-loaned and advanced to him by the defendant, with interest.

<p>The direct responsive answer of a defendant as to a fact within his own knowledge, must prevail, unless overcome by more evidence than the oath of one witness. . -</p>

<p>This cause came up on the argument of a rule that the defendants show cause why an injunction should not issue to restrain them from erecting or carrying on their gas works at the place on which they had begun to erect them, or in the neighborhood of that place.</p> <p>The argument was had upon the bill and answer of the gas company, and the affidavits attached to them, and upon depositions taken by both parties, under an order for that purpose.</p>

This was a suit by Abraham W. Elavell, for divorce from his wife, the defendant Charlotte A. Elavell, on the ground of adultery, The answer denied the adultery, and also charged the complainant with adultery by way of recrimination, and as a defence to the suit. The case was argued upon the pleadings and proofs.

<p>1. A divorce can never be granted upon general charges in the bill, of adultery with “ divers persons whose names are unknown." A bill for divorce should not be filed upon general suspicion, until the discovery of some specific act, or of the facts from which such act must be inferred.</p> <p>2. If the name of the person with whom the adultery is alleged to have been committed is unknown, the time, place, and circumstances must be stated, so as to identify the offence, or the person of the adulterer must he described, and the fact that the name of such person was unknown at the time of filing the bill must be proved. If the name is known it must be stated in the bill.</p> <p>3. Proof of adultery with A, will not sustain a charge of adultery with B ; nor will proof of adultery with a person whose name was known to the complainant, sustain a charge of adultery with a person whose name is alleged to he unknown.</p> <p>4. The precise time of the adultery, stated in the bill, is not necessary to be proved, provided the variance is not so great as to mislead the defendant.</p> <p>5. The court is reluctant to grant a divorce on testimony of a single witness, uncorroborated, especially when the evidence is a betrayal of a secret confided to the witness, so long kept undivulged as to render the witness almost a partieeps criminis.</p> <p>6. Evidence sufficient to establish the fact that the defendant and her house are of ill repute, is not sufficient to entitle the complainant to a decree of divorce for adultery.</p>

<p>A direction in a will that the testator’s daughter should have a support .out.of his estate, when she should be sick and unable to support herself, while a widow, does hot entitle her to such support, though she is old and very infirm, and unable to support herself, no sickness being alleged.</p>

<p>1. Property purchased hy a guardian, with funds belonging to his ward’s estate, arid the title to which was taken in the guardian's name, will, at the option of the ward, he declared to be held in trust for him.</p> <p>2. A purchaser of property so held in trust, at a sale under an execution against the trustee, the purchaser having notice of the facts creating the trust, will be decreed to hold it as trustee.</p> <p>3. A bill praying that-complainant’s title to one half of the property in question as cestui giie trust, may be decreed and established, and also that it may-be partitioned, and one half set off to her by metes and bounds, is not multifarious.</p> <p>■ 4. In suits between the proper parties relating to the same subject matter, several species of relief may be prayed, although each might be the subject of a separate suit.</p> <p>5.' Where a bill sets up a sufficient ground of equitable relief as to part, and none as' to another part, and would bo demurrable if that part was sustained, a general demurrer will not lie.</p> <p>6.. A demurrer being sustained to a part of the bill for a cause specifically assigned, objection on score of multifariousness is removed, and the complainant may proceed as to the rest of his case' as if there had been no demurrer.</p>

<p>1. The Court of Chancery will not interfere to restrain the vendor from collecting or negotiating securities given for the price of land conveyed with full covenants of warranty, on account of alleged defects in the title not amounting to a total failure of consideration, where there has been no disturbance or eviction, and no suit is pending by an adverse claimant.</p> <p>2. A partial failure of consideration, such as a defect of title, will not be admitted as a defence to the foreclosure of a mortgage for the consideration money, without eviction or a suit pending by an adverse claimant.</p>

<p>1. A defect of title to mortgaged premises conveyed by the mortgagee is no defence in a suit for the foreclosure of a mortgage for part of the consideration.</p> <p>2. Such defence is a proper subject of exception, for impertinence.</p>

<p>1. A bargain made on Sunday is void, and no subsequent recognition of it, short of a new bargain, can give it validity.</p> <p>2. Specific performance of a contract will not he enforced if there was a subsequent agreement by parol to waive it and substitute a new contract for it.</p> <p>3. But where the defendant, in his answer to a hill for the specific performance of a contract, admits a substituted contract, the complainant is entitled to have a decree for the specific performance of the substituted contract, if lie chooses to perform it on his part, and he can have such relief in his suit on the original contract.</p>

<p>1. Where parts of an answer are responsive to the complainant’s bill, npon matters within the knowledge of the defendant, and fnlly deny the equity upon which an injunction -was based, it is no reason for denying the motion to dissolve that the answer in other respects is not a full answer to the bill in other allegations, and that some of the exceptions to the answer are well taken.</p> <p>2. The English rule that exceptions to an answer, undisposed of, are a bar to the dissolution of an injunction upon the denials of the answer, has not been adopted in this state.</p>

<p>1. A broker employed to sell lands lias no implied authority to sign a contract of sale on behalf of his principal.</p> <p>2. But if he had such authority, if the contract varies from his instructions the principal will not be bound by it.</p>

<p>J. The administrator of an intestate who resided out of this state, by letters granted in the place of his domicil, for assets situate in that jurisdiction, cannot be called to an account in the courts of this state.</p> <p>2. And whore such an administrator has died without rendering an account in the courts of the state of his intestate’s domicil, the courts of this state have not the right to call such administrator’s representative, and much less his heir-at-law, to account here for the administration of the estate. Nor can an administrator de. bonis non of the first intestate, appointed in the place of such intestate’s domicil, be called to account here.</p> <p>3. An administrator who purchases real estate with the surplus of the personal estate of his intestate, after the payment of debts, and takes the title thereto in his own name, holds the real estate in trust for the next of kin of the intestate, at the election of the cestuis que trust, who are entitled to take the property if it has increased in value, or to call for an account of the trust money so misapplied; and the heir of such administrator holds it in like trust.</p> <p>4. In order to ascertain, in such a case, whether the property was purchased with money of the first intestate, an investigation of the accounts of his administratrix may be made in the courts of this state, if necessary. An account thus taken is not had for the purpose of settling the account, or making a decree of distribution here, but to ascertain whether real property in this state over which this court has jurisdiction, and exclusive jurisdiction so far as the title is concerned, is held in trust by one resident of this state for another resident.</p> <p>5. An administrator de bonis non 'is responsible only for such tmadministered assets as he has received. Ho can in no way be called upon to account for the mal-administration of his predecessor.</p> <p>6. The weight of authority seems to hold that the representative of a former administrator could not be called on, by the administrator de bonis non of the first intestate, for the proceeds of property converted into money in the hands of the administrator of the first intestate, at such administrator’s death; but only for assets existing in specie.</p> <p>1. A general demurrer to a bill, on the ground of multifariousness, ■which is not sustained as to the only part which makes it multifarious, will he overruled.</p>

This cause was heard upon bill, answer, and proofs. The bill was filed to foreclose a mortgage dated March 1st, 1868, given to secure the payment of $1200 in three years, with • interest payable on the first days of March and September in each year, and a proviso that if the interest should not be paid' within fifteen days after the same should become due, the-whole principal should be due.

<p>1. The residence required by the statute concerning divorces, to give the the court jurisdiction, means fixed domicil, or permanent home.</p> <p>2. The requirement of the statute that a party shall be an inhabitant or resident of the state at the time of the desertion, refers to the whole period of three years, during which the desertion must have continued, and not to the mere commencement or act of desertion.</p>

<p>1. A suit may be maintained to compel the performance of a contract performed only in part, and a party will not be precluded by his acceptance of a deed in performance of the contract, when snck acceptance was under a mistake as to the contents or effect of the deed.</p> <p>2. If parties, by writings executed at the time, settle and fix what is meant by a name used in their dealings, the meaning fixed will be taken in preference to any other.</p> <p>3. Where, under a contract for the conveyance of land, the vendee got the precise land be bargained for by the very lines pointed out to him, and by the precise lines designated in the written contract, this court will not, in a suit for specific performance, compel a conveyance of additional land, because a general expression “ homestead farm,” used in the written contract as synonymous with the description in the deed, may be construed to mean more by certain artificial rules of legal construction, but will leave the complainant to his remedy at law.</p>

<p>1. A bill of interpleader is only proper when there is a claim by different parties to the same fund or assets in the hands of a third party, for which he has a right to ask to be discharged.</p> <p>2. When a creditor has, by written or parol declarations with regard to a debt, or by conduct tantamount thereto, declared or agreed that a debt shall be given up or relinquished, or that it has been relinquished, a court of equity will consider this an equitable release, and will not permit the representatives of the creditor to enforce the demand.</p> <p>3. A bequest of $G000 of the money due on a bond from a legatee, with the direction that on payment of the balance of said bond, and whatever interest may be due thereon, the bond shall be assigned to the legatee, does not, of itself, release the interest on the bond. But when, from previous directions in the will, and the light of surrounding circumstances, it was the evident intention of the testator to require only the balance of the principal, and the interest thereon, it was directed to be assigned npon such payment.</p> <p><1. An assignment of a large amount of property, by a person of advanced years, procured by one having influence over her, without adequate consideration, will be closely examined into by a court of equity.</p> <p>5. But when, although the money consideration for such an assignment was inadequate, it appeared that the principal motive of the assignor was to make up to her daughter a groat inequality in her share of her father’s estate, under her father’s will; that the assignment was not made privately, but upon consultation with and approval of others interested ; that it did not leave her in any way destitute, hut the consideration therefor (an annuity) was probably equal to all her wants, and was about the income of the securities transferred ; and that the business was transacted when she had sufficient capacity therefor ; the assignment should be sustained.</p>

The argument was upon a rule to show cause why an injunction should not issue, and upon the answer of the defendants and depositions taken.

<p>1. One may convey lands for a. certain price, and agree to repurchase them at a fixed time, for a certain amount exceeding the price received. And interest, without the sale being yonstrued a mortgage, or the transactlímTieing attected witirusury.</p> <p>2. But such transactions are suspicious, and will not be sustained unless__ therqis clear proof of good faith, and that there was no intention to cover usury, or to take away the right of redemption upon what was in truth ar~ mortgage to secure a loan.</p> <p>An agreement by a borrower upon mortgage, to allow the lender to retain part of the land mortgaged, after being repaid principal and interest' <of the loan, if it is a part of the mortgage transaction, is usurious, will not be enforced, either at law or in equity.</p> <p>4. But if such an agreement is independent of the loan and mortgage, and not made in considerationHYEYIdan.of, the" condition of its being ~ made, and capable of being sustained without reference to them, either as a sale on consideration or as a gift, it may be enforced. And, though the”agreement was" not in writing, effect will be given to it by limiting the .quantity of land to be reconveyed, on ordering redemption. '</p>

<p>1. A simple agreement by a firm to employ, one at wages to be measured’ by a proportion of the profits, does not constitute him a partner.</p> <p>2. An answer in which the denial is made in such form as to leave it in doubt whether the denial is of the fact alleged, or only of the facts in the-form and manner and at the time alleged in the bill, is evasive, and will not avail to dissolve an injunction.</p> <p>3. If some of the denials in an answer, though direct, are, by reason of the manner in which they are made, evasive, and would not be sustained on exceptions, yet, if other parts of the answer allege facts responsive to the bill, and which are inconsistent with, and thus deny the material allegations of the bill, such parts may be taken in connection with the evasive-denials, and form a sufficient denial to entitle the defendant to a dissolution of the injunction.</p>

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

The suit of King is for the specific performance of a contract made by Ruckman with him for the conveyance of lands. The bill was filed July 1st, 1868. The suit of Ruck-man is to have that agreement rescinded, canceled, and declared void, on the ground of non-performance by King.. His bill was filed July 8th, 1868, and is not a cross-bill. Euckman, at the time of commencing that suit, did not know of the other.

This was an application for an injunction to restrain the defendant from laying an additional track of its horse railroad in Pavonia avenue, in Jersey City. It was applied for on two grounds. The first was, that the defendant was not laying the track so that the two tracks, when laid, should be equi-distant from the centre of the street as required by the act authorizing it.

This suit was brought by Maria Bullock, wife of Smith W. Bullock, through her next friend, to compel the specific performance of a contract for the conveyance of land. The contract was made by Mary Livingston Adams, wife of tbe defendant, George A. Adams, September 27th, 1864.

<p>1. If the direction of the will, as to the proceeds, require a skle, it is equivalent to a positive direction, to sell, and the land is deemed personal property from the death of the testator; but if it is optional with the’ executor whether to sell or not, or if it is only an authority to sell without any direction, then the land retains its character as land until actually sold.</p> <p>2. When land, for a certain purpose, is required to be converted into money, and in the sale more is sold than is required for that purpose, the excess of the proceeds will be considered as land.</p> <p>3. Such excess constituting the residue of the estate, which, by the will, went to the nephew of testatrix, who has since deceased, his widow is entitled to dower therein, free from her husband’s debts, and his heirs are liable to his debts to the amount they may receive of it. If the widow will accept it, a gross sum in lieu of dower will he ordered.</p> <p>4. On a bill filed by an executor for the direction of the court as to the disposition of the balance in his hands, ascertained by a decree of the Orphans Court, consisting of the surplus proceeds of the sale of real estate over debts and legacies, which surplus was claimed by the administrator of the devisee of testator, who died before the sale, and whose personal estate was insufficient to pay his debts: Held — That the administrator, not having obtained an order of the Orphans Court to sell the land of his intestate to pay debts, was not entitled to receive the part of the surplus, the right to which was vested in the heirs of such intestate; but as the heirs, if they received it, would he liable for the debts of the intestate to the amount they received, and as the administrator, representing the creditors, and all the parties in interest were before the court, it was referred to a master to ascertain and report what amount was required to pay the debts of intestate, over and above the personal estate that came to such administrator’s hands, and in what amount the administrator should give security; also, if the widow of intestate was willing to take a gross sum in lieu of dower, to ascertain and report the amount thereof, the surplus to go according to the principles stated in opinion.</p>

<p>1. Railway companies have delegated to them, as part of their franchises, much of the sovereign power of the state, in consideration of their providing the means of commerce and intercourse by constructing the roads which are the avenues of that commerce, and performing the additional duty of common carriers when authorized; and if so authorized, they are obliged to transport all merchandise and passengers on the terms fixed in the grant through which they obtain their franchises.</p> <p>2. Where the injury to the complainant is of that nature that while there may be a remedy at law, as by recovery of damages, yet it cannot be adequately relieved by suits for damages, for the reason that it is continually recurring, and will require continued and repeated suits and litigation, a preliminary injunction will be granted to restrain it.</p> <p>3. An injunction will not be granted to compel a common carrier to transport goods at the rates fixed by law; but it will issue to prevent a railway company, bound by law to transport goods, from entering into an agreement not to transport them at the rates fixed by law.</p> <p>4. A complainant cannot have any relief against a railway company, based on allegations of dereliction in duty to the stockholders.</p> <p>5. A mandatory injunction will not be ordered on a preliminary or interlocutory motion, but only upon final hearing, and then only to execute the decree or’judgment of the court. It is only in cases of obstruction to easements or rights of like nature, that maintaining a structure erected and kept as the means of preventing their enjoyment will be restrained, and the structure ordered to be removed as part of the means of restraining the defendant from interrupting the enjoyment of the right.</p>

The argument of this cause was had upon demurrers filed by the defendants. The complainant had, on the 10th of Eebruary, 1868, filed an original bill against all the defendants, except Cutter. He became interested in the property in question by purchase at a sheriff’s sale pending the suit, and a supplemental bill to have that purchase declared fraudulent and void was filed against him November 28th, 1868, in which the defendants in the original bill were joined.

This cause was argued before the Hon. Thomas P. Carpenter, one of the masters of the court, sitting for the Chancellor, on bill, answer, replication, and proofs.

An order was granted that the defendants show cause why an'injunction should not issue to restrain them from erecting in the city of Trenton, buildings intended to be used as a slaughter-house, a pork packing-house, and pens for keeping cattle and hogs.

<p>1. A mortgage made before the act of Congress making notes a legal tender, must be paid in gold or silver coin.</p> <p>2. The power of regulating contracts is left with the states; and includes declaring what shall be a legal tender.</p> <p>3. Congress cannot, to give effect to one provision of the constitution, pass a law prohibited by other provisions, or inconsistent with its spirit.</p>

<p>1. An injunction will not be granted when the right of the complainant on which the relief is founded, or at least the principle of law on which it depends, lias not been settled by the courts of law of this stale.</p> <p>2. An injunction will not be granted when the complainant has a full and complete remedy at law.</p> <p>3. Nor where the injury complained of is slight compared to the inconvenience to the defendant and the public, that would result from the injunction.</p> <p>4. Whore for a period of twenty years a railroad company had been permitted to occupy the street of a city in front of the complainants’ premises, for a railroad track, under a claim of right, without remonstrance or complaint by the complainants, or those under whom they claim, and the railroad company, by such acquiescence, was induced to enter into a lease with the city, binding itself to build a depot and platform, of a width that could add hut little to the inconvenience to which the complainants were subjected by the occupation of the street by the track, and from which the company cannot be released, equity will not interfere to prevent the erection.</p>

<p>1. Where the bill prays an answer without oath, the answer, though sworn to, is no evidence for defendant, though any facts admitted are conclusive against him.</p> <p>2. Mere opinion, unsustained by any facts, is not sufficient to show mental incapacity.</p> <p>3. In bargaining for his interest in land with an illiterate and ignorant man, without knowledge of the situation or value of the property, or the nature of the rights of other claimants, strict good faith should he observed by the party so bargaining, not to deceive him by any act or representation, or to allow him to deceive himself by any mistake as to facts, when he knew he was acting under such mistake and had it in his power to undeceive him.</p> <p>4. In a suit to set aside a deed made by a person unable to read, for misrepresentation as to its contents, and its purport and effect, the burden of proof is upon the defendant; and in such case, it is a part of the necessary proof of the execution of the deed to show that it was read, or its contents made known to the grantor ; but an acknowledgement according to the statute, before an officer designated by law, is equivalent to proof that the grantor had knowledge of the contents, if it contains the certificate that the officer made known the contents before the acknowledgment.</p> <p>5. The evidence held not to sustain the charge of fraud and misrepresentation.</p> <p>Quare. Whether a deed could be set aside for want of consideration, in a suit where it is not set up as a ground of relief.</p> <p>6. Where one executes and delivers a deed upon terms before offered, but not positively accepted, it is an acceptance of the terms.</p> <p>7. Such deed will not he declared void on the ground that the terms were hard and unconscionable, especially where it is difficult to say whether they really were so. It is not like a suit for the specific performance of an unconscionable bargain, which the court will, in its discretion, refuse to decree.</p> <p>8. Courts of equity never declare deeds void for mere inadequacy of consideration, unless the inadequacy be so gross as to he of itself a convincing proof of fraud or imposition.</p> <p>9. Services requiring skill, sagacity, and judgment cannot be measured by any fixed scale, and where their value has been agreed upon and fixed by the parties, cannot be reviewed or changed by courts.</p>

This was an appeal from an order of the Orphans Court of Sussex county, appointing Lewis Van Blarcom guardian of Mary Dorsheimer, an idiot, residing in the province of Ontario, in Canada.

<p>This cause came cm for hearing upon depositions taken before the register on part of the respectivo parties.</p>

This was an appeal from the decree of the Orphans Court of the county of Essex, upon exceptions taken by the respondent to the account of the appellant. The Orphans Court reduced a charge made by-the appellants of $1845 for services to the testator in his lifetime, to one half of that sum, or $922.56, reducing the rate of $30 per month to $15 per month.

<p>1. A will drawn by an attorney, a few boars before the testator’s death, pursuant to his instructions, but its execution postponed till he should feel stronger, though he asserted that his will was as it had been drawn, will not be admitted to probate as a nuncupative will.</p> <p>2. It is essential to a nuncupative will that it bo only a verbal declaration of the testator’s wishes made in the presence of witnesses called upon by him to bear witness that such is his will.</p>

This was an appeal from the decree of the Orphans Court of the county of Burlington, refusing to allow exceptions-taken by the appellants to the final account of the respondents, as administrators of Zachariah Prickott.

<p>1. In the settlement of estates by executors, neither the Orphans Court, nor the Prerogative Court, can make an order of distribution.</p> <p>2. The order of distribution is not made by any authority or power inherent in the court, and the statute authorizes such order in cases of intestacy.</p> <p>3. The Ordinary, in England, never had the power of making an order of distribution where there was a will.</p>

John R. Thomson, by his will, dated July 20th, 1862, after giving certain legacies, directed as follows : “ And I further direct, that from the income of the residue of my estate there shall be paid an annual sum of $10,000, payable semiannually, to my wife, Josephine A. Thomson ; and I authorize and empower my said wife, by her last will and testament, duly executed, to direct, limit or appoint, give or devise the portion of the estate so appropriated for an income of…

<p>These were appeals from orders of the Chancellor for injunctions. The opinion of the Chancellor is reported in 4 G. E. Green 387.</p>

The following is a copy of such parts of the contract, upon which the hill was filed, as are involved in this appeal : “ Articles of agreement made this 24th day of» July, in the year of our Jjord 1852, between the Morris and Essex Railroad Company of the first part, and the Sussex Mine Railroad Company of the second part: “ Whereas, the said Morris and Essex Railroad Company is now engaged in extending the railroad of the said company from the village of Dover to the…