Volume 21 — New Jersey Equity Reports

<p>Tliia cause was argued on final Bearing, upon tlie pleadings and proofs.</p>

<p>A gift of the interest of §12,000 to A during life, and, at her death, of the principal to B, is a vested legacy, and if A survives B, goes, upon her death, to B’s representatives.</p>

<p>A stipulation in a lease of a quarry of a liorso shoe shape, and having faces on the northwest, north, east, and southeast sides, “that said quarry shall lie worked as the face is now opened,” is not violated ty quarrying one of the faces to a greater extent than another, and such quarrying will not be enjoined if the same general shape is preserved.</p>

The defendants moved for a dissolution of the injunction heretofore granted in this case. The motion was founded upon the bill, and answer of the defendants.

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

<p>1. Unsupported evidence by an alleged paramour as to a wife’s ante-nuptial incontinence, is insufficient to overcome her positive denial. Even if fully proved, such incontinence would be no foundation for a divorce, nor admissible to support proof of her subsequent adultery.</p> <p>2. A husband who connives at or assents to adultery by his wife with one person, will he deemed as assenting to it with others, and will not be entitled to a divorce for a subsequent act of adultery with a different person. It will not affect the case, that the act of adultery at which the husband connived was not committed.</p> <p>3. If a husband sees what a reasonable man could not see without alarm, or if he knows that his wife has been guilty of ante-nuptial incontinence, or if he has himself seduced her before marriage, he is called upon to exercise peculiar vigilance and care over her, and if he sees wliat a reasonable man ■ could not permit, and makes no effort to avert the danger, he must be supposed to see and mean the result.</p> <p>4. He is not discharged from the exercise of such vigilance by the fact of his having deserted his wife and all his marital obligations for three years, or his having obtained a divorce in another state. If the marriage relation exists in this state, so that lie can complain of a violation of its obligations, he cannot claim advantage of his wife’s incontinence, when caution on his part would have prevented it.</p> <p>Qucerc. Whether desertion for three years, under circumstances which entitled the defendant to a divorce before the commencement of complainant’s suit, and before any adultery proved against defendant, would bar the complainant.</p>

<p>The question in this cause was tbe sufficiency of tbe pleas.</p>

This cause ivas argued upon bill and answ'ers. The bill was filed for a construction of the will of the testator, annexed to the letters of administration issued to the complainant. The funds in his hands are the proceeds of the sale of lands in Newark, of which the defendant, James S. Linell, claims one-fourth; the three other defendants contend that he is not entitled to any interest therein. The controversy is between those defendants.

<p>1. The word “ children" will not be construed to include grandchildren, unless there is something in the context to show that the testator intended that it should include grandchildren, or unless the provision will be inoperative without such construction.</p> <p>2. Upon an ordinary limitation by way of remainder to children, &c., in a class, all who’ are in esse at the time of the death of the testator, take vested and consequently transmissible interests, immediately upon the testator’s death.</p>

<p>The argument of this cause was had upon final hearing, upon the pleadings and proofs.</p>

<p>1. Where the will contains no power or direction to sell, such power is not created by implication, because necessary or convenient to enable the executors to execute the directions of the will.</p> <p>2. When express directions are given to sell, and no person is named to make the sale, the power of sale is held to be in the executors by implication, in cases where it is their duty to distribute or pay out the proceeds.</p>

<p>1. The failure of a mortgagee to keep his covenant to procure certain releases, is no defence to a suit for a foreclosure of the mortgage, where the mortgagor agreed to pay the money at a certain time absolutely, and not on condition that the releases had been procured.</p> <p>2. It does not affect the question, that the suit is brought by a bona fide purchaser of the mortgage for a valuable and full consideration, without notice of this covenant. He holds it subject to every equity and defence to which it was subject in the hands of the mortgagee.</p> <p>3. Courts of equity will not give to such independent covenants an effect different from their legal effect, or turn independent covenants into conditional, because it will give better protection to a party, or diminish litigation.</p>

<p>This was a bill for account, by one of two former partners against the other. The defendant pleaded no promise within six years, and tliat no canse of action had arisen within six years; to this plea the complainant filed the common replication. The argument was had upon the pleadings and testimony taken upon both sides.</p>

<p>1. An interlocutory decree made at U>p hearing in a foreclosure suit, on bill and the answers of two defendants, one of which charged that the mortgage of the other defendant was void for usury, does not adjudicate upon the validity of such mortgage by not directing an account to be taken of the amount due upon it. The question between the two defendants is still open, and is proper to be brought up by a cross-bill.</p> <p>A A cross-bill against a complainant should, in general, be filed at the time of filing the answer, and in all cases before closing the testimony. But the first rule does not apply to a cross-bill by one defendant against another, nor does the last to eases in which no testimony has been taken.</p>

<p>This cause was argued upon separate demurrers, filed by each defendant to the complainants’ bill.</p>

<p>1. Lis pendens only take effect from the service of the subpeena. The statute provides that the suit shall not be notice until the filing of the notice required by the statute, but gives no effect to the notice. It only restrains its effect.</p> <p>2. A person who has contracted for the purchase of land, may compel any one who, after such contract and with notice of it, takes'the legal title from the vendor, to perform the contract. The subsequent purchaser, to hold the title against such contract of sale, must be a bona fide purchaser, without notice, and must have paid the purchase money.</p> <p>3. If part of the purchase money remains unpaid after the sale, as to such part such second purchaser is not protected, but it may be claimed by the prior purchaser.’ But in such case the purchaser will hold the legal title conveyed to him free from any claim under the prior contract, except to the purchase money not paid until after notice of the contract.</p> <p>4. That a mortgage was given as security for the payment of the unpaid purchase money, is not sufficient to protect such subsequent purchaser. He is only protected as to money actually paid before notice.</p> <p>5. A delay of two years and a half not accounted for in bringing suit to compel specific performance, is fatal to relief.</p>

<p>1. When $1000 of tlio money -which a mortgage was given to secure consisted in shares of a mining company, accepted by the mortgagor, on the representation of the mortgagee that ho had paid that much for it, but without- misrepresentation or fraud by the mortgagee, the 81000 will not bo deducted from the mortgage.</p> <p>2. The rule of caveat emptor applies as well to the sale of stocks as of chattels. The vendor can only be made liable for misrepresentation or fraud.</p>

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

<p>1. A mistake as to facts or the contents of a_ contract for the sale of land, might, in some eases, excuse or modify the performance, but the vendor must perform it according to its legal effect, unless he is misled by the fault of the other party.</p> <p>2. When the matters constituting the complainant’s equity are clearly and definitely denied in a responsive answer, they must be proved by the-oath of more than one witness.</p>

<p>This cause was argued on the pleadings and proofs.</p>

<p>On exceptions to master’s report.</p>

<p>1. Where a husband actually drives Ins wife from himself and his house, or, by his cruel and abusive treatment, compels her to leave it for her safety or comfort, it is an abandonment and separation by him, and would entitle her to support and maintenance, under the tenth section of the divorce act.</p> <p>2. But where the wife leaves her husband and his home, and goes and continues to reside elsewhere, this is prima facie abandonment by her, and she must show clearly that lier going away was compulsory.</p>

The complainant was guardian of Mary Anna Higgins, who died under age, January 23d, 1867. He, as her guardian, in her lifetime, had received a sum of money, which was the surplus of the proceeds of lands that had descended to her from her father, and boeh sold by an order of the Orphans Court of Hunterdon, for the payment of his debts.

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

<p>1. The questions, whether, under an act to authorize a township to issue “ bonds to raise money to pay to such persons, who had or might volunteer in the army of the United States,” bonds could be issued, or money raised for drafted men, or for any one but volunteers; whether a majority of the town committee, without a regular call for a meeting, could lawfully fill up, or seal, or deliver a bond; and whether they could do this in a place out of their own township ; are proper to be determined by the courts of law, and by them only, and this court will not restrain a suit at law, in which these questions fairly arise, that they may be determined here.,</p> <p>2. Where the allegations of the bill, which, in such a case, might give a court of equity jurisdiction, are fully, directly and circumstantially denied by the answer, the denials, must, on a motion to dissolve upon bill and answer, be taken as true, and the injunction issued to restrain the suit at law be dissolved.</p>

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

This was a motion that an execution should issue in this case on the decree of foreclosure made in this court, and affirmed in the Court of Appeals, although a writ of error to remove the cause to the Supreme Court of the United States lias been filed, and the citation issued and served. The affirmance was entered in the Court of Appeals April 4th, 1870.

<p>Argued upon final hearing, on bill, answer, and proofs.</p>

<p>On motion to dissolve injunction, upon bill and answer.</p>

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

<p>Argued on motion to dissolve injunction, upon bill and answer.</p>

<p>1. The fact that the validity of a patent is, or may be involved in a suit for the violation of a covenant under seal, is not a ground for demurrer ; the state courts have jurisdiction. When such suit is between citizens of the same state, the Federal courts have no jurisdiction.</p> <p>2. A notice given under a contract must be construed according to the intention of the contract. Though the notice is in terms to revoke a contract, but the evident object of it is to revoke only an authority or license under the contract, the authority or license only will be thereby revoked.</p>

<p>1. Upon a reference to examine and report whether tlie interest of infants requires and will bo promoted by a sale of their lands, the master must report his own opinion, formed from facts, not that of others, nor an opinion founded upon that of others without facts. Mere opinion of witnesses is no evidence.</p> <p>2. The testimony of the father and mother, owning a life estate in the premises, that the interest of the infants would be promoted by a sale, when they would be clearly benefited lij' the sale at the expense of the infants, should not lie acted on and hardly received.</p> <p>3. It is not a sufficient reason for the sale of infants’ reversionary estate in lands, that the property is so much out of repair that it would now cost more to put it in tenanlable repair than the income would justify', when the property has been in the actual possession of the life tenants. If they have suffered it to get out of repair, they are bound to put it in as good repair as it was when they entered upon it.</p> <p>-1. Upon an application for tho sale of infants’ reversion in land, the only' question is, will the property bring as much now as it will at the death of tho life tenant ? If it will not, it is not for the interest of the infants to sell, if the life tenant is to receive a share of the proceeds, or of tho income from them, according to the rules of this court.</p>

<p>1. A marriage ceremony, tliougli actually and legally performed, when it was in jest, and not intended to lie a contract of marriage, and it was so understood at tlie time by botli parties, and is so considered and treated by them, is not a contract of marriage. Intention is necessary, as in every other contract. -</p> <p>2. The Court of Chancery has the power to declare a marriage void, when performed in jest, and where it was not intended to be a contract of marriage.</p> <p>3. The legislative acts and the constitutional provision bearing on the subject, examined.</p>

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

The bill in this case is filed by Edward N. Linn, Eicliavd Philip, John G. Stanley, William B. Stanley and Alexander Philip, who together constitute the firm of E. Philip & Co., of Belleville, in the county of Essex, Mow Jersey, against Charles Id. Wheeler and Charles H. Wheeler, junior, both of said township. It sets forth that on or about October 18th, 1869, they recovered judgment against Charles Id. Wheeler for §230.25, besides costs of suit.

This cause was argued before the Hon. Joseph F. Randolph, one of the masters of the court, sitting for the Chancellor, on demurrer to a bill for injunction.

<p>Argued upon final bearing, on bill, answer, and proofs.</p>

<p>1. It is not sufficient to entitle a party to a divorce on the ground of adultery, to prove that the defendant who might be supposed willing to commit the adultery, .was in a position in which it was possible to commit it. It must be shown that the defendant and the party with whom the crime is charged to have been committed, were together under suspicious circumstances, which cannot be easily accounted for, unless they had that design, or which could not well be explained without it.</p> <p>2. The testimony of a defendant charged with adultery, and of the supposed adulterer, is competent, and in a doubtful case, must control the question.</p>

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

On petition for divorce, for desertion. The defendant did not appear. The hearing was on proofs taken ex parte, and a master’s report.

<p>A provision by a testator for a home for his widow and minor children until all become of age, under the direction of their mother, will be defeated as to the widow, by her election not to accejit it in lieu of dower as provided in the will. But the substantial benefit intended for the infant children by devoting the amount directed to their support, will not be wholly defeated by such election of the widow ; and a court of equity will see to it that the amount set apart by the testator for that purpose shall lie applied to the benefit of the infants substantially as intended by the testator.</p>

This case came up on a rule to show cause why an injunction should not issue against the defendants, to restrain them from running trains on the road of the Paterson and •New York Railroad Company, leased to them, in front of the lands of the complainant, and over a wharf built by him in front of them, on the shore of the Passaic, and from laying a second track on part of his wharf that was further in the river, and in the river beyond his wharf.

<p>The argument in this case was had upon the bill and the ■answer of the infant defendants.</p>

<p>A mere accommodation note or accommodation endorsement by a married woman, is not sufficient to create a charge upon her separate estate.</p>

<p>1. Where two railroad companies have the authority to build and run a railroad between the same termini, neither can take exception to any irregularity or unlawfulness in the exercise of such franchise by the other, unless it can show a particular injury to itself from such course.</p> <p>2. Where a party stands by and encourages another in the construction of a public work, at great cost, this court will not interfere with it at his instance. Such conduct estops him from calling in question tho legality of the structure.</p> <p>3. Where a railroad company appropriated land under a belief that they were the owners of it, and the land appeared to be of no particular value to the owners, this court, in the exercise of its discretion, refused to restrain them from its enjoyment.</p> <p>Quaere. Whether this court will prevent, by injunction, the permanent appropriation of lands by a railroad company acting ultra vires, in the absence of irreparable injury.</p> <p>4. Where a railroad company have irregularly taken lands, but have the capacity to acquire title, this court will not, where the advantage to the complainants would be small, and the injury to the company incalculably great, interpose and stop the running of the cars on such road until the statutory method of acquiring title can be executed.</p> <p>5. When the title to the lands the use of which the complainants seek to enjoin is in dispute, this court has no jurisdiction. In such case, an injunction is never granted to prevent the enjoyment of the property in dispute by either party who happens to be in possession of it.</p> <p>6. A court of equity will never lend its active aid to a party who, by a superior knowledge and artful silence, has gained an unfair advantage over another.</p>

An original bill* was exhibited by the Erie Railway Company, to compel the Delaware, Lackawanna and Western Railroad Company to pay certain tolls for the use of the railroad through the Bergen tunnel, of which the first named company are the lessees.

<p>1. A court of equity will not interfere with proceedings for partition commenced at law, unless such interference becomes necessary to protect some party thereto from fraud or wrong, or to secure to him some clear right which the law tribunal, from the manner of proceeding before it, cannot secure. For such purpose courts of equity will interfere to prevent a failure of justice and loss of rights.</p> <p>2. A tenant in common, who lias made improvements on the land held m common, is entitled to an equitable partition. The only good faitli required in such improvements is that they should be made honestly, for the purpose of improving the property, and not of embarrassing his co-tenants, or encumbering their estate, or hindering partition. The fact that the-tenant making suck improvements knows that an undivided share in the land is held by another, is no bar to equitable partition.</p> <p>3. It is no bar to allowance for improvemexxts in eqixalizing the partition, that the improvements were made by tenants in'common in reversion, during the previous life estate.</p> <p>4. Reference to a master, with specific instx-uctions, to ascertain and re-poi-t whether partition cannot be made by payment of owelty ; if not, sale will be ordered and improvements allowed for out of proceeds.</p> <p>5. Costs and expenses of defendants in the proceedings at law for partition, those proceedings being authorized by statute, and arrested by this court in order to more complete equity, will be allowed out of proceeds of .sale.</p>

The bill was to compel a conveyance of the undivided half of a number of parcels of land in Monmouth and Ocean counties, by the legatees and executors of James S. Lawrence, deceased.

The argument was upon exceptions taken by both parties to the report of the master. This report was made upon a reference directed pursuant to the opinion of the Chancellor on the hearing of the cause, reported in 3 C. E. Green 358.

<p>John Castner, the complainant in the original bill filed by him as administrator of James M. Beatty, William Beatty, and Wesley Beatty, respectively, seeks to recover legacies given to the decedents, of whose respective estates he is administrator, by the will of James Montgomery, deceased. The defendant, Maria Ailing, is the executrix of the will of Fruden Ailing, the last surviving executor of the will of Montgomery. Maria Ailing, as such executrix, filed the cross-bill, praying the directions of the court as to the payment of these legacies, and for a construction of the will of Montgomery.</p> <p>The will of Montgomery was made in April, 1833. In the second clause he provided for his wife in these words: “I give and bequeath unto my said wife the interest of $6000, to be paid to her during her life in half yearly payments.” And the eighth clause is: “From and after the death of my wife, I give and bequeath the principal sum of $6000, (the interest whereof I have herein directed to be paid to my wife during her life), to my sister Eliza Beatty’s children, as follows : to James M. Beatty, the sum of $3000, and to William Beatty and Wesley Beatty, each the sum of $1500; and in case of the death of one or more of the said legatees, James, William, and Wesley, I give and bequeath the share of such deceased legatee to the survivors or survivor of said legatees.”</p> <p>The testator died in 1833, William in 1847, James in 1857, Wesley in 1859, and the widow of testator in 1869. She being the residuary legatee, her administrator was made party to these suits.</p>

<p>This cause was submitted upon briefs, upon bill, answer, -and proofs.</p>

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

<p>This was an application to vacate the enrollment of a final decree in a foreclosure suit, for the purpose of opening the decree to permit the petitioner, Catharine A. Franklin, to be made a defendant and to file an answer.</p>

This cause was considered upon the pleadings and proofs handed to the court, without'argument or brief from counsel for either party.

<p>1. On final hearing, upon bill and answer, a preliminary injunction will be made perpetual where it appears from the pleadings that the defendants intend to do some act charged in the bill, which would be a nuisance to the public, or an injury to the complainants.</p> <p>2. The affidavits to the bill and answer are not evidence at the final hearing.</p>

<p>This was an appeal from an order of the Orphans Court of the county of Camden, made July 27th, 1868, directing part of the real estate of William Neill to be sold for the payment of his debts, and from an order made by the same court, October 12th, 1868, discharging a rule to show cause why the order to sell lands should not be set aside, granted on application of the appellant, October 9th, 1868.</p>

This was an appeal from the decree of the Orphans Court ■of the county of Union, admitting to probate the will of Sarah Collins, deceased; and also from such part of the decree as refuses to allow the costs of the appellant, as ■caveator before the Orphans Court. There was also a cross-appeal by the respondents, because the decree does not allow the respondents their costs in the Orphans Court, as against the appellant.

<p>On appeal from, the Orphans Court of the county of Passaic.</p>

This was a suit for the foreclosure of a chattel mortgage, given by Messrs. Little and Dana to Samuel Gr. DeCourcey and others, who were the complainants in the court below. This mortgage was dated on the 12th of April, 1866, and the chattels embraced in it were situate in the county of Camden. Little, one of the mortgagors, resided in the county of Union; Dana, the other mortgagor, resided in the state of New York. Messrs.

The controversy in this cause grew out of the second and fifth clauses of the will of Mrs. Margaret H. Clark, which were in these words : “ Second. I give and bequeath to my daughter, Eliza Y. Clark, all my clothes and wearing apparel, together with the spare bed-room furniture, and also such of my silver as she may select.

<p>Tlie opinion of the Chancellor is reported in 4 O. JE. Green-105.</p>

<p>The opinion of the Chancellor is reported in 4 G. F. Green 29.</p>

<p>The opinion of the Chancellor is reported in 4 G. IE. Green 187.</p>

<p>The bill in this ease was dismissed, because the mortgage sought to bo foreclosed was not due at the time of the commencement of the suit.</p>

<p>1. When an issue is made by the pleadings and proofs on the question of' the right to the permanent custody of infants, the case addresses itself to the general authority of equity as the public guardian of infants.</p> <p>2. In such a proceeding it is not the technical right of either parent which will control the decision, but the primary motive of judicial action will be the well-being of the infants.</p> <p>3. In the exercise of its legal discretion, the court in this case gave some of the children into the custody of each parent.</p>

<p>1. A party wlio would seek specific performance must lie prompt in asking tlie aid of tlie court. Unreasonable delay will, of itself, be often a bar to a suit of this character.</p> <p>2. Executed parol agreements to buy m property at a sheriff’s sale for the benefit of defendants in execution, can be sustained only on the ground of fraud.</p> <p>3. When the elements of the case are, simply, a purchase under a parol promise to hold for the benefit of the defendant in execution, such a transaction cannot ho enforced either at law or in equity.</p> <p>4. The defendant agreed by parol to purchase property at a sheriff’s sale for tlie benefit of the defendant in execution : the latter, at tlie time of tin-agreement, assigning to him twenty-five shares of stock to make the purchase “more beneficial to him.” Itwas also agreed that the defendant in execution should raise the purchase money, and take the property within sixty days after the sale. Held, that the defendant in execution having failed to raise the money and redeem the property for over two years, and having permitted, in the interim, the purchaser to improve the property, and in some respects use it as his own, had lost his right to enforce the specific performance of the contract. Held also, that the stock stood as collateral security, and that the purchaser must account for its value, it having been sold by him.</p>

<p>1. An agreement endorsed on a mining lease, and stipulating “ that the parties of the second part shall, at the expiration of two years from the. date hereof, pay unto the said W and D the sum of §10,000 in lieu of the ten per cent, agreed upon in said lease, then the said W and I) shall make a good and lawful deed of conveyance for the above described premises in the within lease, &c.,” held to be an absolute agreement by the lessees to purchase the leased premises at the end of two years.</p> <p>2. This being the plain import of the words of the contract taken in their ordinary sense, the court is bound to presume, in the absence of any allegation of fraud or mistake, that such was the real meaning of the parties.</p> <p>■ 3. When the language of a written contract is ambiguous, or otherwise doubtful, evidence from without is admissible to show the real intent of the parties.</p> <p>4. But such evidence can not be admitted when the language is so clear and explicit as to leave no room for doubt as to its meaning.</p>

<p>1. Where a deed, absolute on. its face, is given as a security for the payment of money, by or for the grantor to the grantee, it will be held in equity that the grantee took the premises subject to redemption.</p> <p>3. Upon an application for a specific performance of a contract, the court must be satisfied that the claim is fair, reasonable, just, and equal, in all its</p> <p>3. To determine these qualities, the court will look not merely at the terms of the agreement, but at the relations of the parties, and the surrounding circumstances.</p> <p>4. A party seeking the specific performance of a contract, must show that he has performed, or been ready and willing to perform all the essential t'-rrns of his contract.</p> <p>5. Time and modes of payment, attended by special circumstances of hardship and loss caused thereby, are circumstances to bo weighed by the court in exercising a sound legal discretion.</p> <p>(5. The surrender of a written contract of sale, followed by acts inconsistent with the continuance of the same, such as negotiating a sale to another party by the surrenderor for the benefit of the surrenderee, held to be in equity a rescission of such contract.</p>

This was a .motion to dismiss the a] peal, on the ground that an appeal did not lie from a decrc e of the Prerogative Court, and tliat the act of the legislature granting an appeal from that court was unconstitutional. The act in question will ho found in the laws of 1869, page 84.

This was a motion to dismiss an appeal from an order of the Chancellor refusing to set aside the sale made by the master, of land and personal property, under the execution and order in the cause. The order was upon an application of the appellants, who were the complainants in chancery. The motion to dismiss was on the ground that the order appealed from was on a matter of practice and within the discretion of the Chancellor.

<p>1. The right to divert water is an incorporeal hereditament, and at the common law, could only be created by deed. But when a charter of a water power company gives a right to divert the water of a river, upon the written consent or permission of those owning lands and water privileges, such written consent obtained after the act, with the assistance of the act, operates as a substitute for the common law method, and has the effect of granting to the company a legal right to divert.</p> <p>2. If such consent was in fact, however, obtained previous to the grant of tiie charter, it was a license merely. But when such license lias been executed upon the lands of the licensor, and permanent works and improvements erected m pursuance thereof, at great expense, equity will not, to the extent that the license is executed, disturb it, or permit its revocation.</p> <p>3. Where improvements of a permanent nature have been made by a person on bis own land, the enjoyment of which depends upon a right recognizable by tiie law, affecting tiie land of another, and to which his consent is necessary, and where such consent is expressly proved, or necessarily implied from the circumstances, and the improvements have been made in good faith upon it, equity will not permit advantage to be taken of tiie form of the consent, although not according to tiie strict mode of the common law, or within tiie statute of frauds; and to defeat such a purpose will, upon proper bill filed, enjoin the licensor from accomplishing his fraud, or when lie asks relief it will lie refused, or if granted, will be allowed merely in the shape of compensation, but protecting tiie right of the licensee.</p> <p>I. Tiie measure of the execution of the license, in this case, is the capacity of tiie dam and canal as originally constructed, regarding the culverts only as a means of supply, according to tiie necessity of business, and liable to any change in their location or construction, the better to enjoy the benefit of the dam and canal as originally built and completed, the equity being that the defendants shall, if necessary, have the full use of the expenditure made on the faith of the consent within its terms, and depending upon it.</p> <p>5. An equitable estoppel will affect a subsequent purchaser to tiie same extent as his grantor, when he lias had actual notice of tiie condition of tilings upon which it is based, or when the circumstances are such as to put him upon inquiry to ascertain tiie facts.</p> <p>6. To constitute an abandonment, tiie facts or circumstances must clearly indicate such an intention. Abandonment is a question of intention. Kon user is a fact in determining it, but though continued for twenty years, is not conclusive evidence, in itself, of an abandonment. Its weight must always depend upon the intention to be drawn from its duration, character and accompanying circumstances.</p>

This was an appeal from a decree of the Chancellor, made in accordance with his opinion in the cause, reported in 5 C. F. Green 177.

The bill was for the specific performance of a contract alleged to have been made 'by the respondent, who was the defendant below, to convey a tract of nine acres of land, and to grant a right of way in front of his other lands, for the railroad of the complainants. This contract was contained in the following receipt, which was set forth in the bill, viz. “ 1832, Sept. 15th.

<p>The opinion of the Chancellor is reported in 4 C. E. •Green 350.</p>

<p>1. A judgment recovered in the state of New York must receive here the same effect to which it is entitled there.</p> <p>2. Under section'111 of the New York code, a person who assigns a bond as collateral security is a necessary party to a suit brought by his assignee against the obligor of the bond.</p> <p>3. On foreclosure here of the mortgage given to secure the bond, the complainant, who holds it absolutely by assignment subsequent to such collateral assignment, is entitled to a decree for the amount due upon it in excess of the judgment in New York.</p>

Before this cause came to hearing, the appeal of the bank was settled, and the argument had upon the other appeals. The opinion of the Chancellor is reported-in-5 C: E. Green 23.

<p>This- was a motion on part of the appellant, to allow the cost of printing the case to be taxed-with the costs.</p>

<p>1. A promise to execute a deed or writing in the nature of a declaration, of trust of lands, cannot be proved by parol.</p> <p>2. A party can have relief, if at all, only on the case made by his bill.. Evidence relative to matters not stated in the pleading, nor fairly within its general allegation, is impertinent, and connot be made the foundation of' a decree.</p> <p>3. A failure or refusal by a grantee of lands to execute a declaration of' trust therefor in accordance with an alleged promise so to do, floes not, of' itself, amount to what is meant in law by fraud, imposition, unconscionable advantage, or undue influence.</p>

<p>The opinion of the Chancellor is reported in 5 C. if. Green 62.</p>

This is an appeal by the caveators from a decree of the Prerogative Court-, admitting to probate the will of the late Dr. Henry Vanderveer. The opinion of the Ordinary is reported in 5 C. IS. Green 463.

■ The bill was filed by Eliza Carlisle and others, to ascertain and settle the height at which the defendant, Cooper,, was entitled to maintain his darn; and to enjoin the defendant from overflowing the complainants’ lands with backwater from the dam of the defendant. The facts of the case-sufficiently appear in the opinion of the Chancellor, reported in 4 C. E. Green 257. Both parties appealed from the Chancellor’s decree, and the appeals were argued together.

Two distinct suits were brought in tlie Court of Chancery, one by King for the specific performance of a contract by Buckman, for the conveyance of lands; the other by Buck-man to have that contract declared void, and given up to be cancelled. The decrees below dismissed King’s bill, and declared the contract void. From both decrees King appealed. The facts of the case sufficiently appear in the opinion of the Chancellor, reported in 5 C. E. Green 346.