Volume 24 — New Jersey Equity Reports

The bill in this cause was filed November 30th, 1872. The complainant is a stockholder of “ The North River Brick and Tile Manufacturing Company,” a corporation organized April 18th, 1867, under the act of the legislature of New York, entitled “ An act to authorize the formation of corporations for manufacturing, mining, mechanical, and chemical purposes,” passed February 17th, 1848.

<p>1. In a suit for partition this court will not try the question of illegitimacy, on which the complainant’s title is alleged to depend, nor direct an, issue to be framed that it'may be tried at law.</p> <p>2. If in a suit for partition the complainant’s title is denied, and the-title which is disputed is a legal one, the court may dismiss the bill, or it. may, ex gratia, retain the cause, to afford the complainant an opportunity to settle his title at law. It will not do more.</p>

<p>1, A marriage will not bo annulled for impotence. The Court of Chancery is restricted in its jurisdiction in suits for divorce, to the legislation on the subject, and in suits for nullity of marriage to eases within the inherent and undoubted jurisdiction of equity.</p> <p>2. This court will, outside of its statutory jurisdiction, annul a contract of marriage, only where the contract is void; not where it is voidable merely.</p>

On motion to set aside report, because of the master’s refusal to adjourn, to permit counsel to produce witnesses in behalf of some of the defendants, should he conclude to do so.

On bill to foreclose. Application on part of the owners of the equity of redemption in the mortgaged premises, and the holder of a second mortgage, to file supplemental answers by way of amendment.

<p>On motion for receiver.</p>

<p>On bill and demurrer.</p>

<p>On petition. Motion to amend final decree.</p>

<p>In this case an injunction was granted by the late Chancellor, restraining the defendant from committing waste upon certain mortgaged premises in the county of Essex, and from removing from those premises certain timber and other trees felled by him thereon. A motion is now made on affidavit to dissolve the injunction.</p>

<p>1. A purchaser at a sale under an attachment is clothed with all the rights of the attaching creditor; at.d a voluntary conveyance by the debtor, pending the attachment, to a grantee having full knowledge of the attachment, is void as against such purchaser.</p> <p>2. Where, besides the prayer for general relief, a part of the prayer of the hill is substantially that a deed may be set aside, the hill will not, because part of the prayer is that the defendant may bo decreed to give the complainant possession of the land, be treated as a bill for possession, and be dismissed, on the ground that ejectment is the proper remedy.</p> <p>3. Under the prayer for general relief, the complainant may have other special relief than that prayed for, if it be consistent with the case made by the bill.</p> <p>4. Under a general demurrer for want of equity, no objection for want of form can properly be raised.</p> <p>5. A mortgagee bolding a mortgage given by a person holding title under a fraudulent conveyance, is a proper party to a suit to set aside such conveyance.</p> <p>6. All persons participating in making a fraudulent conveyance, are proper parties to a suit to set aside such conveyance.</p> <p>7. A defendant cannot demur to a bill, merely because other persons are improperly made defendants to the suit. The objection can only be taken by the parties themselves.</p>

<p>On petition. Motion to be permitted to answer.</p>

<p>1. The provision in the act incorporating the New York and Long Branch Bailroad Company, and in the supplement thereto authorizing the company to bridge the Raritan river, that suitable and sufficient draws should be made to bridges so as not to obstruct navigation, is not a prohibition against building a bridge, if navigation should be at all obstructed thereby, but a simple requirement that the draw should be sufficient not to obstruct navigation.</p> <p>2. Tinder an authority given by charter to a railroad company to cross a river by bridge or ferry, as may be most convenient, the railroad company are the judges as to which will be most convenient. That a bridge would be less convenient to navigation than a ferry, does not deprive the company of the right to build a bridge.</p> <p>3. In such a case, the convenience of both the navigation and the railroad interest is to be regarded.</p> <p>4. A work authorized by the legislature cannot be adjudged a nuisance, if executed in an authorized manner, in an authorized place.</p> <p>5. Where a franchise is granted by the legislature to a railroad company to bridge a navigable river — the highway of a large and extensive commerce, moving under the same legislative authority — the legislature must be regarded as having acted with a view to the claims of both interests, and each as against the other is entitled to all that a reasonable construction of the grant will justify. And though the navigation interest may he deprived, by the later franchise, of desirable facilities to which it has been accustomed, apd even be subjected to much inconvenience, it has no redress, unless it ho on tlie ground of an existing contract between the legislature and those whose interests are thus interfered with.</p> <p>6. Where the construction of an important public work has been permitted to proceed almost to completion, in full view of all parties that could be affected thereby, and large expenditures and liabilities have been incurred, and no action is taken to prevent the progress of the work for more than fourteen months, this court will not interfere by preliminary injunction.</p> <p>7. A mere objection, or protest, or threat to take proceedings, is not sufficient to exclude the consequence of laches or acquiescence in such a case.</p> <p>8. The extent of expenditure in the execution and construction of a public work, is, to a certain degree, the measure of the acquiescence.</p> <p>9. It will not relieve a party from the consequence of his delay in bringing suit for injunction, that he was at liberty to look for protection to legal proceedings instituted by another party, who had a far greater interest in the matter, when the injunction sought was denied in a former .suit brought in the virtual interest of such other party.</p> <p>10. A stronger case of delay is required to affect those who assert a public right, than where a private right alone is in dispute, but delay even in such case is not without effect.</p> <p>11. The progress of a public work, of much importance to the people, who, through the legislature, have authorized it, will not be enjoined, except in a case clearly calling for the intervention of the court.</p>

<p>An application for a preliminary injunction having been denied in this case, a motion was made for a rehearing of that application.</p>

<p>1. A sheriff’s sale will be set aside where there is gross inadequacy of price, and the party whose interest is injuriously affected by the sale has been prevented by mistake or misapprehension from attending it.</p> <p>2. Where property is sold under the process of this court for a grossly inadequate price, the court will not permit one who, however innocently and unintentionally, contributes to the mistake of the owner, by which he is misled as to the time of sale, to take advantage of the mistake by a voluntary purchase of the property at the sale.</p>

On petition of Osborn Conrad, that the final decree be opened, and he made a party defendant, with leave to answer or file a cross-bill.

<p>The bill in this case was for foreclosure and sale of mortgaged premises. It prayed a decree against John Hoey for deficiency. Notice was given to him, according to the 38tli rule of this court, at the time of serving the subpoena to answer. No decree was taken against him, however. After the sale of the mortgaged premises, under the execution issued on the decree, the complainant filed his petition, setting forth these facts, and praying that an order might be made in the cause, requiring Air. Hoey to pay the existing deficiency, and awarding execution against him in case of his failure to do so.</p> <p>The order was granted on application, without notice, and motion is now made to vacate it.</p>

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

<p>1. An answer, of which any part entitles it to fill the character it assumes, will not be ordered to be stricken from the files.</p> <p>2. When an answer is impertinent only in part, the remedy is by exceptions.</p> <p>3. It is not impertinence, in an answer to a bill for foreclosure by a second mortgagee, to aver that his mortgage is for a larger amount than is alleged in the bill, nor in an answer thereto by the mortgagor, to aver that he has paid a specified sum on the complainants’ mortgage, for which he claims credit.</p>

This suit is brought to restrain the defendant from violating an agreement, which the complainant alleges was made between them. On the filing of the bill and its accompanying affidavits, an injunction was ordered. The defendant answered, denying the agreement. Eeplication was filed, and the parties have proceeded to take testimony. The proof on the part of the complainant is all in. The defendant now moves to dissolve the injunction, on the bill and answer alone.

<p>Edwin A. Stevens, then a citizen of this state, died on or about August 7th, 1868, leaving a will and codicil thereto, the former dated August 5th, 1865, and the latter April 15th, 1867. By the will, he disposed of all his property for the benefit of his wife and children. By the codicil, among other things, he directed that his property known as Castle Point, and his homestead lot, and the houses thereon, be divided into four plots, one to each of his sons; that his executors purchase two certain school-house lots, and the school-houses thereon, and cause them to be conveyed to themselves, on the trusts declared in that behalf in the codicil, and devised to his executors, on the trusts declared in the codicil, certain other land in Hoboken, for establishing and maintaining thereon an institution of learning, now known as “The Stevens Institute of Technology;” and further provided as follows : “ Out of the residue of my estate (excluding Castle Point, and the homestead lot, and the house thereon) remaining after the payment of my debts, the said $800,000 in legacies, and the appropriation of so much thereof as is necessary to answer the foregoing charitable bequests and devises, I empower my executors to apply, not exceeding the sum of $1,000,000, to finish, on my general plans, as near as may be, in the discretion of my said executors, the battery known as the Stevens Battery, and for the accomplishment of the said object, I give to them the use of the dock and yards and basin heretofore appropriated to the said battery, and all the material provided for said battery. When said battery shall be finished, I direct my executors to offer the same to the State of New Jersey, as a present, to be disposed of as said state may deem proper; and if not accepted by the said state, I direct my executors to sell the same, and the proceeds thereof shall fall into the residue of my estate.”</p> <p>By the will, the testator appointed Ms wife, Martha B. Stevens, and Messrs. Samuel B. Dod and William W. Shippen, his executors.</p> <p>December 23d, 1868, Mrs. Stevens, with her children, filed a bill in this court against her co-executors, making the Attorney-General, as the representative of the state, and Mary P. Garnett, one of the residuary legatees and heirs-at-law of the testator, parties defendant.</p> <p>The bill raises the questions, whether the charitable bequests are any of them indefinite, and as to the bequests to the state, whether the direction to expend a sum not exceeding $1,000,000, to finish the battery, is not indefinite and void, and whether the direction to offer the battery to the state is not also illegal and void, inasmuch as it is alleged that the battery will be a vessel of war, and the state has no right, in time of peace, to keep such a vessel, except with consent of the Congress of the United States. The prayer is, that the will and codicil may be established, and that the directions and trusts thereof may be performed, and the devises and bequests be carried into execution, so far as the same are legal, and no farther; and that this court may give a construction to the said devises, bequests, directions, and trusts, and declare which, if any, of the same are illegal; and that, in the meantime, Messrs. Dod and Shippen may, as executors, be restrained from executing any of the directions of the will which require the payment of money, or the sale of any property of any kind of the testator, or the purchase of any real estate for the purpose of carrying out said charitable uses and trusts, and may be restrained from acting in the execution of those trusts. The bill contains, also, a prayer for general relief. It prays answer without oath.</p> <p>To this bill the defendants answered; the executors denying the allegations that the trusts for charitable uses, or the directions, devises, or bequests, or any of them, were illegal; Mrs. Garnett insisting that all the devises, bequests, and trusts, except those to and for the benefit of the widow and children of the testator, were illegal; and the Attorney-General insisting on the legality and validity of the bequest to the state, and the direction in connection therewith.</p> <p>Replication was filed April 21st, 1869. Congress, by resolution, approved July 1st, 1870, consented that the state receive and dispose of the battery.</p> <p>September 11th, 1871, Mrs. Stevens and her children filed a supplemental bill, stating that since the filing of the original bill, one of the complainants in that bill had died, and that another of the complainants was born after the making of the codicil. It recited the original bill, and the proceedings in the suit subsequent thereto, and set up the impossibility of finishing the battery for the sum in that behalf provided by the will. It prayed answer without oath, and asked advice on the points submitted by the original bill, and on the following additional ones :</p> <p>Whether the birth of issue after will made, although provided for by the will, was a revocation of the will.</p> <p>How Castle Point and the homestead lot should be divided.</p> <p>Whether the executors had duly -executed the trust as to the Stevens Institute.</p> <p>What the executors should do with the two school-houses, and how to execute the trust as to them.</p> <p>It prayed that the battery might be sold, with the assent of the state, without prejudice to the rights of the complainants, or Mrs. Lewis (formerly Mrs. Garnett).</p> <p>That the net proceeds of the sale of the battery might fall into the residue, and be paid, in any event, to the executors, and not to the state.</p> <p>That the Governor and the executors, other than Mrs. Stevens, might be enjoined from paying over to the state the money received from the sale of the battery. And for other and further relief.</p> <p>The Governor and commissioners of the state, appointed in relation to the battery, and the executors, Mrs. Lewis and the Attorney-General, were the defendants to this bill.</p> <p>January 5th, 1872, the executors, Messrs. Dod and Ship-pen, filed their answer to the supplemental bill, setting forth, among other things, the history of the battery, and of their action under the will in relation to it, and admitting the impracticability of completing it for the sum provided by the codicil for that purpose.</p> <p>The Attorney-General also answered, admitting the exhibition of the original bill, and the filing of the answer thereto, and the passage and approval of the resolution of Congress of July 1st, 1870, consenting that the state should receive and dispose of the battery according to the conditions of the bequest, and praying that all other matters in the supplemental bill might be proved, and insisting that nothing therein alleged could deprive the state of the battery and of the value thereof.</p> <p>April 12th, 1872, the supplemental bill was amended, by consent, by making the heirs-at-law of Robert L. Stevens, deceased, parties thereto in respect of a claim which it was apprehended might be set up in their behalf to an interest in the battery, under the language of a resolution of Congress, approved by the President, July 17th, 1862, by which all the right, title, and interest of the United States to the battery, was released to “the heirs-at-law of Robert L. Stevens, or their representatives.” This amendment is understood to have been made in order to obviate any objection to the title of the vessel, which there was then some expectation of selling.</p> <p>The heirsrat-Iaw of Robert L. Stevens, deceased, are, it is alleged, properly before the court, under the supplemental bill.</p> <p>The cause being at issue, testimony was taken on part of the complainants, which, as they insist, was closed March 1st, 1873, though the Attorney-General denies that it was so understood by him or the examiner. Two witnesses, Messrs. Dod and Shippen, were examined.</p> <p>July 21st, 1873, the Attorney-General filed a cross-information, praying discovery, among other things, of the general plans of the testator for the construction of the battery, the action and expenditures of the executors in reference to finishing the vessel on those plans, and insisting that, in this suit, and on the allegations therein contained, none of the rights of the parties litigant can be settled; that for want of information on the subject, on the part of the Attorney-General, the state is not prepared to litigate the question as to the impracticability of finishing the battery according to the directions of the will, for the sum provided for the purpose by the will; that the state claims that the gift is absolute, and not dependent on any condition, and, therefore, such litigation, which would be very expensive, involving the testimony of experts in naval construction, who would need time for their investigations, is entirely unnecessary; and the information seeks to have the question, as to whether the gift is absolute or not, first settled by the court. The Attorney-General insists 'that, in the suit as it stood on the original and supplemental bills, and the matters therein contained, this court neither has the jurisdiction, nor will exercise the power to settle any of the questions raised by the information. "What they are, is sufficiently shown by the prayer, which is—</p> <p>That the executors may be required to offer the vessel to the state in such condition, and in such a stage of completion as this court shall, under the circumstances, think equitable and just. To finish it out of the moneys appropriated for the purpose by the testator, in and by the will, or any other moneys of his estate. If these moneys will not finish it, that the executors may be required to finish it out of their own money.</p> <p>That the court will declare that the bequest of the battery was not upon any contingency, whatever; and expressly, not upon the contingency that the vessel should be actually finished (with a less sum of money than it could possibly be finished for) before the executors should offer it to the state; that is to say, that the court will declare that the bequest was not on an impossible condition.</p> <p>That the words, “ when said battery shall be finished, I direct my executors to offer the same,” are not words importing a condition precedent to any right of the state.</p> <p>That those words are merely descriptive of the subject of the bequest, and of the state and condition in which the state should have the right to require the vessel to be put by the executors, by means of the fund of §1,000,000, before the state should be obliged to take any risk or burden connected with the preservation or finishing thereof.</p> <p>That the resolution of Congress, of 1862, was a gift of the battery to the testator, and if not, that the gift by the United States to the “heirs of Robert L. Stevens, or their legal representatives,” by that resolution, is void for uncertainty, and in that case, that the resolution of 1870 is a gift of the battery to the state.</p> <p>That the heirs-at-law of Robert U. Stevens — that is to say, the persons who are meant when the word “ heirs ” is used in a technical sense, be declared never to have had any right to the battery, and if they had, that they are barred, by reason of the facts set forth in the information, from all claim to the battery, and all right and interest therein.</p> <p>That the suit brought by Martha B. Stevens and her children may be declared to be of such a nature as to prev en the court from settling the rights of any of the parties. That it may be stayed until the hearing in the cross-suit, or at least till all the parties to the information shall have answered it, or the rights of the state are declared on a hearing of the information, on demurrer, or otherwise.</p> <p>And that the Attorney-General, on behalf of the state, may have such other and further relief as the nature of the case may require, and especially that all of the defendants may answer the information under oath, making discovery of all the matters thereinbefore prayed to be discovered, and all such other matters as are pertinent to the facts alleged in the information.</p> <p>To the information, all persons who are or may be supposed to be in interest, are made parties.</p> <p>On the filing of the information, an injunction was issued, pursuant to the prayer.</p> <p>Motion is now made by the complainants in the original suit, and the executors defendants therein, to dissolve the injunction.</p>

<p>1. The jurisdiction of courts of equity to redress the grievance of public nuisances, by injunction, is undoubted, and clearly established. But it is well settled that, as a general rule, equity will not interfere where the object sought can be as well attained in the ordinary tribunals.</p> <p>2. Because the remedy by indictment is so efficacious, courts of equity entertain jurisdiction in such cases with great reluctance, whether their intervention is invoked at the instance of the Attorney-General, or of a private individual who suffers some injury therefrom, distinct from that of the public, and they will only do so where there appears'to be a necessity for their interference.</p> <p>3. The obstruction of a highway, which not only is not used, but cannot he used, is not the sort of grievance which, under its jurisdiction over public mdsances, this court will undertake to redross by injunction.</p> <p>4. This court will not interfere, by injunction, in the matter of an obstruction to a highway, where the highway lias, for a long period of time, been disused, and where the inconvenience to the public, occasioned by the obstruction, is so inconsiderable, — being at most the necessity of making a slight detour.</p> <p>5. "Where, upon an information to restrain the erection of a building in a public highway, it appears that the public authorities have failed to take any action for seventeen days, and that no irreparable or even serious injury appears io have been done, or to he about to he done, which should induce the action of this court in the matter, hut the case presents merely the features of an unwarranted occupation of part of a public highway, disused hut not abandoned, to its complete obstruction — an invasion of the public right, unattended, however, with any considerable public inconvenience — the jurisdiction of this court will not be exercised.</p>

<p>' Where, under a written agreement entered into by the mortgagees and mortgagors, trustees were appointed to take title to the lands, by purchase at a sheriff’s sale under a foreclosure by one of the mortgagees, and to sell them, in accordance with a given plan, and upon certain terms and conditions detailed in the agreement, the sales made by the trustees will not be set aside, at the instance of the mortgagors, on the ground that the property was worth much more (according to the speculative valuations of witnesses) than it brought, and that the times and terms of the sales were prejudicial, where it appears that they were made in accordance with the terms of the agreement, and with powers subsequently vested in the trustees by all the parties in interest, in the exercise of a wise and legal discretion, and for the best interest, under the circumstances, of all concerned.</p>

<p>On pleadings and proofs.</p>

<p>On bill and cross-bill, answers, replications, and proofs.</p>

On petition of Bommelt and Leueht, and proofs. The object of the petition is to obtain an order staying the complainant, until July 3d, 1874, from proceeding to sale, under’ an execution issued out of this court for the sale of mortgaged premises.

<p>On pleadings and proofs.</p>

<p>On pleadings and proofs.</p>

<p>1. By an agreement under seal, B. was to convey to C. certain real estate, and C. was to pay certain debts of B.’s son; among others, one to T. The conveyance, as at first proposed, was to have been made to C. and T., but by mutual consent, it was made to O. alone, tho latter to pay T.’s-debt. On the day the deed was to be delivered, T. gave to C. a written receipt for the amount of his debt, as agreed upon. C. was not ready to-pay, but took the receipt. He then drew up a new agreement, the same-as the first, but making no provision for the payment of T.’s debt, and falsely representing to B. that T. had refused to comply with the terms of the agreement, persuaded him to execute the new agreement, and give-him a deed in pursuance of it, C. giving to B. his own note for the amount of T.’s debt, payable in two years. C. then refused to pay or recognize T.’s claim, alleging that he had declined to accept the amount agreed upon, and that the property had been conveyed to him on a different bargain. Upon bill filed by T. against O. and B. and son, praying an account against C. as trustee, and payment by him of T.’s claim, and that it be made a lien on the land, with a general prayer for relief — Held,</p> <p>1. The conveyance to C. must be considered as having been made ill pursuance of the original agreement, which, so far as ho and T. are concerned, was never revoked. G. must account as trustee to T. for the amount of his debt, with interest from the day the deed was received, with costs.</p> <p>2. The complainant’s claim cannot be made a lien on the land. The-facts do not constitute a case of resulting trust. The intention was to-create a personal obligation from C. to T.</p> <p>3. No decree can he had against either B. or his son. There is nothing which either can be decreed to perform. But the circumstances disentitle them to costs.</p> <p>2. A trust voluntarily assumed, is none the less binding and complete, because the trustee acts without promise or expectation of compensation for his services.</p> <p>3. A person acting as agent for another, cannot use the power conferred by his position to make an advantage for himself out of or in the course of his principal’s business.</p> <p>4. The doctrine of resulting trusts applies only where the trustee pays for the laud, or some aliquot part of it, with the money of the cestui que trust. Where a trustee has taken title to lands, and, as part of the consideration therefor, has undertaken to pay certain debts of the grantor, no trust results to a creditor whose debt the trustee refuses to pay, by virtue of a receipted bill, given by the creditor to the trustee, which lie-might have used as money, but did not.</p>

<p>1. Whether adulterous acts, committed by a wife prior to the execution of a deed of settlement by her husband, in her favor, but which were concealed from him, and were unknown and unsuspected by him when the deed was made, would avail to set the deed aside. Quaere.</p> <p>2. That she afterwards lived in adultery with the man charged to have been her paramour before the execution of the deed of settlement, cannot authorize the inference of her prior guilt, without additional proof.</p> <p>3. A deed of settlement for the wife’s benefit, made upon the execution of articles of separation between herself and husband, and good at the time of its execution and delivery, will not be set aside for adultery, or any misconduct of the wife, afterwards.</p>

<p>1. In setting up a defence of usury, in a suit, in chancery, the defendant must, in his answer, as in a plea of usury in an action at law, set out the particular facts and circumstances of the supposed usurious agreement, that the court may see that the agreement was in violation of the statute.</p> <p>2, The answer must set up the usury, specifically. The terms of the usurious agreement, and the amount of the usurious premium, must he distinctly and correctly stated.</p>

<p>Argued before the Vice-Chancellor, on bill, answer, and proofs.</p>

<p>1. Municipal authorities, in the making of street improvements, authorized by law to be made at the expense of the owners of lands to be benefited thereby, are, to a certain extent, the agents of such owners. Contracts lawfully made, at the discretion of the authorities, are binding upon the land owners, though injudiciously made, but the owners are entitled to have such contracts performed substantially, in all things, according to their terms, and the authorities have no power to dispense with such performance, to the gain of the contractor and the loss of the property owners.</p> <p>2. If official authorities are about to accept and pay, under a contract, for what, in substantial and important respects, is not according to the contract, so that the difference enures to the benefit of the contractor, at. the expense of the owners, the authorities, in so doing, are guilty of a breach of trust which amounts to a fraud. The proper and only remedy, in such case, is in equity.</p> <p>3. If the land owners stand by and see the officials pay the contractor they can have no relief against the assessment. But a court of equity’ will enjoin such wrongful payments, and in so doing, does not interfere with the exercise, by municipal corporations, of the legislative or discretionary powers conferred by tiieir charters.</p> <p>4. In the exercise of the legislative or discretionary powers conferred upon municipal corporations by their charters, they are beyond the control of the courts; but after such powers have been exercised, and the authorities are about fulfilling a contract for street improvements, by paying for its performance with the money of the lot owners, they are not acting in a legislative capacity, but in the capacity of agents, amenable to-the courts.</p> <p>5. Where a contract made by street commissioners, under chartered authority, requires that paving shall be done in accordance with specifications, but the work is not so done, and the departure from the contract results in a large saving to the contractor, the payment of the stipulated price will be restrained, even though the substituted work he equally good with what the contract required.</p> <p>6. The affairs of a corporate body can he transacted only at a corporate meeting. Its legislative and discretionary powers can be exercised only by the coming together of the members who compose it; and its purposes or will can be expressed only by a vote embodied in some distinct and definite form. Their only existence is as a board, and they can do no valid act except as a hoard, and such act must be by ordinance or resolution, or something equivalent thereto.</p> <p>7. Under a charter investing commisioners with powers over street improvements, and expressly enacting that no work or materials for the improvement of streets shall be contracted for, unless specifications therefor, and proposals for doing such specified work, or furnishing such specified materials, have been fully advertised, a property owner cannot be assessed for any part of the cost of work and materials furnished upon the order of individual commissioners, and without any bargain as to price or other particulars between the commissioners, in their lawful capacity, and the contractor, and without advertisements or competitive bids.</p> <p>8. Public policy requires such restrictive enactments to be rigidly enforced, and the consequences resulting from the void character of the contracts 'they prohibit, must be the same in equity as at law.</p> <p>9. It is a general and fundamental principle of law, that all persons contracting with a municipal corporation must, at their peril, inquire into the power of the corporation, or its officers, to make the contract. And a contract beyond the scope of the corporate powers is void.</p> <p>10. Where municipal officers exercise powers not conferred by charter, in the making of street improvements, they are, in no sense, agents or representatives of property owners, and no liability attaches to the latter, from mere inaction or silence, for improvements so made. The doctrine of equitable estoppel has no place in a case where usurped powers have been exercised by municipal officers, who, in so doing, were contravening public policy, as well as known positive law.</p> <p>11. Where officials are acting within the terms of their delegated powers, though they may be acting carelessly, negligently, or in culpable betrayal of their trust, they are the agents of those whose property is liable to be charged; and if the latter acquiesce in, or fail to interpose when the negligent or culpable conduct of their agents is open to their view, they will not afterwards be allowed to set it up, when the effect of so doing will be to subject innocent parties to the burden that would otherwise fall upon themselves.</p>

Tlie bill is filed for an injunction to restrain the defendants, who are the mayor and aldermen of the eity of Paterson, the rector, wardens, and vestrymen of St. Paul’s Episcopal Church of Paterson, and George Oates, from tearing up, removing, or otherwise injuriously interfering with the complainants’ railroad and track in Colt street, in Paterson, or with the complainants’ operation of the same, and also to restrain the mayor and aldermen from revoking, withdrawing, or…

On bill and affidavits. Motion for injunction to restrain defendants, who constitute the board of health of the city of Newark, from prohibiting tlie complainant from carrying on, on his premises in that city, his business of hide curing.

<p>Motion for issue at law, on bill, answer, and proofs.</p>

<p>On bill, answer, and affidavits. Motion to dissolve injunction.</p>

<p>1. An objection to a bill on the ground of multifariousness, must be taken advantage of by plea, demurrer, or answer, expressly for that purpose. It cannot avail the defendant on final hearing. By answering the matter of the bill, he has waived the obj ection.</p> <p>2. A bill will be dismissed on the ground of misjoinder or multifariousness, at the hearing, only when the court finds itself embarrassed thereby, to such an extent as to prevent it from administering appropriate relief.</p> <p>3. A creditor whose remedy at law has been exhausted, may file a bill in equity, for his own benefit — without making other creditors, standing in the same situation, parties — so far as respects property on which no-creditor has obtained a lien by judgment or execution at law.</p> <p>4. A bill will not be dismissed on account of the incongruousness and inaptness of the special prayers for relief. Even if the special prayers were such that no relief could be granted under them, the court, under the general prayer, may grant any appropriate relief, consistent with the case made by the bill.</p> <p>'5. A voluntary conveyance by a husband to his wife, is void as against creditors of the husband whose debts existed at the time of the conveyance.</p> <p>6. That a creditor, whose debt existed when a voluntary conveyance was made by the debtor of his property, might have had his debt paid at any time for more than seven years after the conveyance, but did not demand it during all that time, nor until after the debtor had become embarrassed, is no ground of equitable estoppel against proceedings commenced by the creditor as soon as he was informed of the conveyance, to reach the debt- or’s properly in the hands of the voluntary grantee.</p> <p>7. That a voluntary grantee of her husband’s property, has spent large sums of her own money in paying off mortgages upon it and improving it, does not entitle her to invoke the aid of the doctrine of estoppel against an antecedent creditor of her husband, who was kept, in entire ignorance of the conveyance almost up to the very commencement of his proceedings to reach the property in the grantee’s hands.</p> <p>8. Even if, in such case, the creditor was chargeable with notice from the record of the deed, a general allegation by the grantee, of expenditure of her own money on the property, would not be sufficient. The amount she received from it must also appear.</p> <p>9. Mere delay in prosecuting a claim for a debt against a voluntary grantee of the debtor, is no ground of equitable estoppel against an antecedent creditor, in seeking to reach the properly in the hands of the grantee.</p> <p>10. If a husband is indebted at the time of making a voluntary settlement upon bis wife, it is presumed to be fraudulent in respect to debts then existing. Such debts cannot be affected by the settlement, and no circumstance will repel the presumption of fraud.</p> <p>11. A voluntary conveyance by a debtor to his wife, of property, of which, or of the proceeds of it, he has been in constant enjoyment, has no claim to he regarded as a post-nuptial settlement.</p>

<p>On final hearing, on pleadings and proofs.</p>

<p>1. When tbe answer fully denies the equity of the bill, and the affidavits annexed thereto are positive and explicit, and fully sustain the denial, the injunction will be dissolved, unless the court is of opinion that the relief sought may be granted on the final hearing.</p> <p>2. Where, under the provisions of a city charter, the entire cost and expense of street improvements are to he assessed upon the property owners on the line of the street, or part of the street on which the improvements are made, and the work is all completed and accepted, and the contract price therefor all paid, before suit commenced, equity will not restrain the city from assessing the property owners for the cost of a pavement, on the ground that the work had not been done according to the requirements of the contract, and that, in materials and execution, it was so defective as to render the pavement almost useless.</p> <p>3. A court of equity will not entertain an action for relief against an erroneous or illegal assessment, except where tlie enforcement of the assessment would lead to a multiplicity of .suits, or where it would produce irreparable injury, or where the assessment, on the face of the proceedings, is valid, and extrinsic evidence is required to show its invalidity.</p> <p>4. That the levy and collection of the assessment might deprive the complainant of his property, is not the irreparable injury contemplated by the exception.</p> <p>5. Where, under the provisions of a city charter, the corporation, in the making of street improvements, are to he regarded as the agents of the land owners, the latter must bear the consequences of the negligence of their agents,</p> <p>6. Where, under the provisions of a city charter, the city authorities, in the making of street improvements, are the agents of land owners, and have been guilty of negligence in permitting such improvements to be made in a grossly defective manner, and to the great injury of the land owners, a court, of equity will restrain the authorities from paying for the work until the defects shall have been remedied, or will compel a just deduction, in respect of such defects, from the contract price, if it be still unpaid, or from any part of it remaining unpaid, if sufficient for the purpose ; and if not sufficient, then so far as it will go. But the application must be made while the court has the power to do justice between the parties, without injustice to others.</p> <p>7. Bui if the land owners stand by and permit tlie city to pay the contractor, they can have no relief against the assessment. Their inaction is a ground of estoppel, and by permitting the city to pa,y the contract price, they have put it out of the power of the court to afford relief.'</p> <p>8. Where land owners, along the line of a street where improvements have been made, seek, on the score of the negligence of the municipal authorities, in the execution of the contract, to restrain the assessment of of tlie contract price upon them, and so shift, to the tax payer at large, a part of the burden which the legislature intended should be borne by themselves alone, vigilance as to the work, and prompt recourse to the court, are essential prerequisites to the application.</p>

Tho bill states that, on or about the 4th of April, 1872, the complainant, being desirous of procuring an eligible site for a residence for himself and family, entered into negotiations with Francis Mackin, William H. McClane, and Anthony Q. Keasbey, for a lot of land then owned by them, situated on the southerly, side of Lagrange street, between Pennsylvania avenue and Broad street, in Newark.

<p>On order to show cause why an injunction should not issue. Argued on bill, answer, and affidavits.</p>

<p>On motion to amend final decree, and counter motion to open decree, with leave to answer.</p>

<p>On final hearing, on pleadings and proofs.</p>

<p>1. Interrogatories appended to tlie bill, and based on the statements and charges therein made, may he regarded as incorporated in the bill, and a prayer for a responsive answer thereto, on oath, is not demurrable.</p> <p>2. Where a naked power of sale is vested in executors, with no absolute direction to convert, but wholly discretionary, not only as to the time of sale, hut as to whether the sale shall ever be made, the land remains land, until the sale actually takes place.</p> <p>3. Until the sale, where the land is not devised to the executors, the title is in the heirs. And the husband of a daughter of the testator, dying after her father, and before the sale, is entitled to curtesy in her share of the land.</p> <p>4. Such tenant by the curtesy, and the son of such deceased daughter,, to whom her said share of the land descended, subject to the curtesy, are proper parties to a bill against the executors, to set aside a sale of testator’s lands, on the ground of fraud, and for a discovery and account.</p> <p>5. Under a naked power of sale, where the land is not devised to the executors, but till the sale the title is in the'heirs, a sale to a pretended purchaser, but really to themselves, is not a conversion of the lands, and does not affect the rights of the heirs.</p> <p>6. A general demurrer will not lie to a bill, of which there is any part as to relief and discovery, to which the defendant ought to answer.</p>

<p>1. This court having first obtained possession of a controversy, over which a federal court in another state, has also concurrent and co-ordinate jurisdiction, will retain it, in its discretion, until it'has finally disposed of it, although the subject matter of the controversy be situated there.</p> <p>2. Where a party is within the jurisdiction of this court, so that on a hill properly filed here, this court has jurisdiction of his person, although the subject matter of the suit may he situated elsewhere, it may, by the ordinary process of injunction and attachment for contempt, compel him to desist from commencing a suit at law, either in this or a foreign state, and of course from prosecuting one commenced after the bringing of the suit in this court.</p> <p>3. Rule 99, of this court, providing, that if a suit be not prosecuted for one year, the bill may be dismissed, can only be taken advantage of by application to the court, while as yet the cause sleeps, or at least before the defendant has taken steps in the cause which are tantamount to a waiver of the benefit of the rule.</p>

<p>On final hearing, upon pleadings and proofs.</p>

<p>1. Under an award by commissioners, appointed to appraise and estimate tlie value of lands about to be taken for a railroad, and assess tbe damages, the presumption of law is that damages were awarded the owner for all injuries that might result to him. For injuries not considered by the commissioners, no adequate remedy can be had at law.</p> <p>2. Where, at the time of making an award for damages for lands taken by a railroad company, the representatives of the company stated to the commissioners that they would cross certain low lands by ail iron bridge, resting upon posts, and would protect and keep clear a lane — the only convenient means of communication between different parts of a farm — but subsequently the company determined to construct a high embankment and have commenced it, and intend to fill in and cut oil' the lane entirely, it clearly appearing that the commissioners did not consider the embankment in tlie estimate of damages; equity will restrain the company from filling up the lane, until compensation is made to the owner of the lands.</p> <p>3. Tlie Court of Chancery lias power to determine in such case the amount of compensation.</p> <p>4. It was referred to the commissioners, who made the original estimate and appraisement of damages, to estimate and report the proper amount of compensation.</p> <p>5. An agreement, executed by tbe owner of tlie lands, to abide by the award, and that such agreement should be a bar to any proceeding to set aside or call in question tlie award, or tlie right and title of the company to the lands, and a bar to any objection to the validity or regularity of the award, is no bar to the relief; the assurances of the company’s agents,, confirmed by the character of the work already commenced at the time of' the execution of such agreement, being that the bridge was to be the plan* pursued.</p> <p>6. Nor is it a bar to the relief, that the owner of the lands had no faith that a bridge was to be built, but believed that the company intended to-build the embankment, and so insisted before the commissioners. It clearly appears the commissioners confided in and acted on the representations of the company’s agents. And they were further virtually, repeated to the owner of the lands himself.</p> <p>7. No implied contract to build a bridge, arises from the representations of a railway company’s agents to the owner of lands, at the lime of taking them for the purposes of their road, that they intend to cross the lands by means of a bridge.</p>

On motion to dissolve an injunction issued upon the petition of the purchasers of the mortgaged premises at sheriff’s sale under foreclosure, to restrain the receiver of the Manhattan Cloth and Paper Company from selling fixtures which he had detached from the premises, and had advertised for sale on account of the company, who were the owners of the equity of redemption.

<p>Motion to amend a final decree.</p>

<p>On motion to dissolve injunction on bill and answer, and .the affidavits annexed thereto.</p>

<p>1. A legacy of S500 to the testator’s wife, to pay for mourning apparel for herself and an infant daughter, (which was part of a provision made for the wife in lieu of dower,) lapsed by reason of the wife’s refusal to accept the provision. Held, that the executors must retain half of it in trust for the infant, the other half to go into the residue.</p> <p>2. Testator gave to his wife as part of a provision made for her in lieu of dower, the use of a house and lot or the rents thereof, and also the income of certain bonds and stocks during her life, or until marriage, and after her decease or marriage, to an infant daughter. The wife refused the provision in lieu of dower. Held, that no disposition whatever of such interest of the widow in his estate having been made by testator in the event of her refusal to accept the provision in lieu of dower, the devise and bequest vested in the daughter, in possession, immediately upon testator’s death. The income of the securities to be held by the executors for accumulation, and the real estate in trust, subject to any assignment thereof to the widow as part of her dower.</p> <p>3. If an estate is devised charged with legacies, and the legacies fail, the devisees shall have the benefit of it and take the estate.</p> <p>4. Whether the failure of an intervening estate in the case of a devise, goes to the benefit of the heir, or of the devisee of the residue, is to be determined by the intention of the testator, whether the intervening estate was regarded as an exception to the general devise of the residue, or as a charge upon the estate.</p> <p>5. Where a testator has in effect charged upon a particular share of the estate a provision made for his widow in lieu of dower, and it was his intention so to do, and the widow refuses to accept such provision, the pro. vision goes to the benefit of the share of the estate so charged, and will not fall into the residue.</p> <p>6. A direction that the executors shall pay taxes, insurance, and repair's upon premises devised to the use of testator’s widow for life, (being part of a provision in lieu of dower,) and afterwards to a daughter for life, is not concluded by the refusal of the widow to accept the provision made for her, but enures to the benefit of the daughter.</p> <p>7. Under a devise to one and the children of another, the devisees all take per capita, and not per stirpes, unless a contrary intention clearly appears from other provisions or expressions of the will.</p> <p>8. A direction that during the minority of a daughter of the testator, the income of the estate which he bequeathed to her be paid to her mother for the support, maintenance, and education of the daughter, constitutes the mother testamentary guardian, and entitles her to receive the income. Such right is not forfeited by the fact that the mother refused to accept a provision made for her by testator in lieu of dower, and that by being permitted to receive the income she may reap some incidental benefit therefrom.</p> <p>9. But the income from bonds and securities which formed part of the provision in lieu of dower, and which were charged upon such infant’s share of the estate, must not be paid to the mother, but be held by the executors for accumulation for the infant.</p> <p>10. The principal of the infant daughter’s share in testator’s estate, must be held by the executors during her minority.</p>

<p>1. A vendor of real estate, who unwarrantably refuses to accept the instalments of purchase money stipulated in the contract of sale, declares the contract at an end, because they were not offered at the time prescribed, and retains possession of the premises, is not entitled to interest on such moneys from the dates fixed for their payment by the contract, to the date of the final decree enforcing specific performance.</p> <p>2. Where, under a contract for the conveyance of real estate, a certain sum was to be paid on the delivery of the deed, and the balance was to be secured by mortgage payable in five equal annual instalments from the date of the agreement, hut by reason of the vendor’s refusal to perform his contract, and of the delays in the suit brought to enforce it, five years elapsed before final decree compelling performance was obtained, the vendee will not be required to pay such balance in cash, but it may be secured by mortgage upon the terms provided in tlie contract. „</p> <p>3. The rule of law, that where a vendor of real estate unwarrantably refuses to execute his contract, the rule of damages applicable in cases of sale of personal property is in all respects apposite, and that the measure of damages is the difference between tlie contract price and the market value at the stipulated time of delivery, adopted as the rule for tlie measurement of damages in a suit for specific performance, where it sufficed for tlie equities of the case.</p> <p>4. Compensation or allowance to either party in respect to lands which, the vendor held contracts for, but was unable to convey, refused.</p>

<p>A trustee who sells at an improper time or without conforming to the conditions of his powers, will be liable for a deficiency of the proceeds of sale, though his intentions were good. He will be held responsible for the highest value the property can be shown to have had, and he decreed to account for the difference.</p>

<p>A deed of settlement between partners of tlieir partnership affairs, declared to be made with a view to a full and final settlement and the recognition of existing rights, referring particularly to specific matters of contention between them, and full and explicit in its provisions, entered into after long consideration and full opportunity to investigate the matters it refers to, and formally executed under hand and seal, will not be disturbed at the instance of one partner against the other, except for the most cogent reasons.</p>

<p>1. A denial “ that the principal sum mentioned, with large arrears of interest, or any interest whatever, is due and owing to the complainant,’’ and an averment “ that a large portion of said principal sum, to wit, the sum of $500, was exacted of the said V. by the complainant, in excess of interest allowed by law, for the loan of the remaining $5000 to the said V. and that, therefore, the complainant is not entitled to receive the said sum of $500, or any interest upon tlie balance of the said principal sum,” is-not sufficient to support the defence of usury.</p> <p>2. To support such defence, the usurious contract must be alleged,, and the facts or circumstances must appear, from which the court can determine the fact of usury.</p>

<p>Argued ou bill and demurrer.</p>

<p>Argued on bill, answers, replications, anl proofs.</p>

<p>1. Where the subpoena is returned, with an affidavit by the sheriff that he has made due and diligent inquiry for the defendant, and was informed and believed that he was not a resident of his county at that time, but of another state, the statutory order for publication is warranted, though the defendant was a resident of this state.</p> <p>2. An error in the name of a paper, (Long Branch Times, when ii should have been Long Branch News,) in which notice to an absent defendant was directed to be published, is amendable after sale under execution. No prejudice thereby results to the purchaser’s title.</p> <p>3. An amended bill is considered as an original bill, and a new subpoena to answer is not necessary when the defendant has not appeared.</p> <p>4. A decree and execution may be amended by an order directing that the mortgaged premises be sold in a different manner from that directed by the decree and execution. Such amendment cannot injuriously affect the title acquired by the purchaser at the sheriff’s sale.</p>

<p>1. Equity will never compel a purchaser to take a doubtful title, which can only be settled by litigation, or where the purchase would expose him to the hazard of such proceedings.</p> <p>2. That may be a good title at law, which a court of equity in the exercise of its discretion, will not force on an unwilling purchaser.</p> <p>3. Every purchaser of land has a right to demand a title which shall put him in all reasonable security, and which shall protect him from apprehension of suits. He should have a title which will enable him, not only to hold his land, but to hold it in peace; and if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value.</p>

<p>On final hearing, on pleadings and proofs.</p>

<p>On final hearing, on pleadings and proofs.</p>

The bill in this cause was filed for divorce a mensa et thoro, on the ground of extreme cruelty, and for alimony, and the custody of the infant children of the parties. The case was heard on bill, answer, replication, and proofs on both sides.

<p>To a bill by a trustee of a married woman, calling in question the act of her husband in disposing of as his own, property of which the wife claims to be the equitable owner, the husband is a necessary party.</p>

<p>1. An answer, not verified as tbe practice of the court requires, will be suppressed.</p> <p>2. When the verification of an answer is in the form of an affidavit, the name of the deponent must be subscribed at the foot of the affidavit; when, in the form of a certificate of the officer who administered the oath, the name of the deponent should be subscribed to the answer.</p>

<p>1. Inadequacy of price alone, unless it lie so gross as to lead to the presumption of fraud, is not a sufficient reason for setting aside a sheriff’s sale.</p> <p>2. A difference of $4000"between a bid of 811,000 made at the first sale, and 87000 made at a second and final sale of the same property, is not such as of itself to lead to the conclusion that the price at which the property was sold was grossly inadequate; and the less so, when even if the bid of 811,000 was intended as a bona fide bid, no one claimed the benefit of it.</p> <p>3. Such sale will not be set aside at the instance of a holder of a second mortgage, on the ground of inadequacy of price, in the absence of evidence to show that the property was sacrificed, and that a higher price could be got for it upon a re-sale.</p> <p>4. A'or will the ground of surprise avail him, when he paid no attention whatever to the proceedings in the suit, or to the first sale; and does not even intimate that he would have attended the second sale had lie known of it, or that he ever intended to bid on the property at all.</p>

<p>Proceedings on attachment for contempt in violating an injunction permitted to stand over, on the ground that steps were being taken to permanently abate the nuisance, the complainants, therefore, not invoking immediate action by_ the court; but attachment to be promptly issued, unless the nuisance be speedily abated.</p>

<p>On final hearing, on pleadings and proofs.</p>

John H. Stephens, late of the city of Newark, in this-state, by the third section of his will, dated January 24th,, 1868, bequeathed as follows: “ I give and bequeath to my grandson, John Henry Stephens Washington, son of my daughter Eleanor, the sum of $5000, to be paid to him when he shall attain the age of twenty-one years; no interest shall be allowed on said sum so bequeathed, until said grandson shall attain to six years of age, from which time and until he shall…

<p>On final hearing, on pléadings and proofs.</p>

<p>1. A deed absolute in terms, but intended merely as a security for a debt, is a mortgage.</p> <p>2. Bill by judgment creditors, who were the purchasers at a sheriff's sale under the execution issued on their judgment, of their debtor’s real estate, for a release of the property from a former grantee of the debtor, on the ground that the grantee’s deed was intended as a mortgage only, and has been satisfied, or for a decree to such effect: — Held, tlie creditors were entitled to a conveyance of so much of the property as had not been conveyed to bona fide purchasers, upon payment of any balance due on the mortgage.</p>

<p>1. Where a railroad has ceased to operate for many weeks, and a receiver has been appointed under the “ act for the relief of citizens on the line of any .railroad that has or may hereafter fail or neglect to operate,” the proceedings of the receiver will not be stayed to allow an inquiry into the causes of the failure of the company to operate.</p> <p>2. When any company of whose property a receiver has been thus appointed shall satisfy the Chancellor of its ability and readiness to operate its road, the receiver will be ordered to deliver it up.</p>

<p>1. On the return of an order to show cause, on an original substantive application by petition, the respondent may, notwithstanding the twentieth rule of this court,'read affidavits which have not been served; the brevity of the time between the service of the order and the return day not admitting of compliance with the rule.</p> <p>2. On an application by claimants for the delivery of possession of a railroad which, under the act “ for the relief of citizens on the line of any railroad that has or may hereafter fail or neglect to operate,” has been placed in the hands of a receiver, they must show not only that they are able and willing to opera'e the road, but also that they are entitled to possession.</p>

On the coming in of the report of the commissioners appointed to assess the complainant’s damages, the parties were heard for and against approving the award.

<p>The argument was had upon the pleadings and evidence.</p>

<p>1. Parol evidence is inadmissible to show that when an agreement was made, the parties agreed to something else, that enlarges or abridges the contract then written.</p> <p>2. The making of a decree for specific performance, is an exercise of the extraordinary jurisdiction of a court of equity, and where the equities are debatable, the decree will depend in a sense upon discretion, and may be granted or denied, according to the special exigencies and facts of the</p> <p>3. But where a contract is certain and fair in all its parts, and is for an adequate consideration, and the party seeking its enforcement has held himself ready to perform it according to its terms, without default, and has be- n prompt in his application for relief, it is as much a matter of course for courts of equity to decree specific performance of the contract, as it is for a court of law to give damages for a breach of it.</p> <p>4. An incidental increase in value of the lot agreed to be conveyed, by reason of improvements put upon other parte of the tract, of which such lot forms a part — such lot being distinguished from the other part by the vendor himself in making his improvements — affords no ground for assessing upon it a part of the cost of such improvements, under a provision in the contract to pay for expenses incurred upon it.</p> <p>5. Taxes having been paid upon the whole tract together, the vendee will be charged with a proportionate part of them, with interest from the time of their payment.</p>

<p>1. "Where, by the terms of a contract for the purchase of lands, the deed "was to be delivered and possession given on a day named, and on that day the vendee took possession of the premises, but, by mutual consent, the delivery of the deed was postponed to a future day, and on that day a .disagreement arose as to the terms of payment of part of the purchase money, by which the delivery of the deed was prevented, and subsequently the vendor offered the deed upon the terms of payment which the vendee himself had required on the day when the deed, by mutual consent, was to have been delivered, and the vendee still continues in possession, equity will compel him to comply with the terms which he acknowledges were agreed on.</p> <p>2. In such case, time is not of the essence of the contract, in such manner as to relieve the vendee from its performance, where he has .-iuilered no loss, even though the original default was on the part of the vendor in not accepting certain notes agreed upon as a substitute for cash.</p> <p>3. A dower right in the land, known by the vendee to exist when he executed the contract, will not relieve him from his obligation ; it was understood that he was to take the title so charged.</p> <p>4. Under the circumstances of the case, costs disallowed.</p>

December 14th, 1870, William IT. Weeks conveyed to Edward E. Mahone, certain mill premises in Middlesex, of about seven and a half acres, for $10,000.

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

<p>1. A divorce, a vinculo, obtained by tlie wife for the misconduct of her husband takes away her dower right.</p> <p>2. Under the ninth section of the act concerning divorces, a gross sum-may be decreed to be paid, or a specific portion and description of property be decreed to be conveyed or transferred to the wife for alimony and maintenance, in full discharge of her future claims and demands. The provisions of this section are remedial in character, and ought to be liberally and beneficially construed.</p> <p>3. Alimony, as allowed by the ecclesiastical law in England prior to the statute there of 1858, was confined to cases of divorce a mensa et thoro and being allowed for the continuance of the separation, and with refer-, ence to a reconciliation, was given in the form of periodical payments of income, and not of a gross sum in full of future claims. The nature and principles of the provision due to the wife under our statute, where the misconduct of the husband drives her to obtain a divorce from the matrimonial bond, are essentially different from those of the provision allowed by the ecclesiastical law in cases of limited divorce.</p> <p>4. The husband having deserted his wife, who had contributed to the earning and accumulation of his property, and while living in an adult, erous connection in another state, to which he had taken the most of his property, proposed to make over to his wife, who remained here, certain property in this state, and to pay also the sum of $2000, as her portion, upon a separation between them; which offer, being accepted by the wife, he refused to fulfill. Upon a bill for divorce, and for alimony and maintenance, his own estimate and offer were adopted by the court .as the guide of its judgment in regard to the amount and kind of provision to be allowed to the wife, and a decree was made accordingly for the conveyance of the property and the payment of the money.</p>

<p>On appeal from decree of the Orphans Court of Essex county, in dower.</p>

<p>On appeal from Cape May Orphans Court.</p>

The bill in this cause was filed to restrain the execution of a lease by the United Companies of New Jersey, of their works to the Pennsylvania Railroad Company. At the Term of October, 1871, the Chancellor delivered his opinion, refusing a preliminary injunction. From the decree made in accordance therewith, the complainants appealed to this court.

<p>1. The executor and trustee under the will of E. R. McC., deceased, had not such discretionary power that he could pay all the income of the trust fund of §25,000, for the support and maintenance of the infant cestui 'jue trust, when it was not necessary or reasonable; although the will gave no direction for the accumulation of interest.</p> <p>2. The allowance of §700 per annum, out of the income, made by the Chancellor, part of the amount paid to the father for the support of the infant, approved. The amount of the trust fund, the social position of the parties, and the fact that the father was without means to support his son, make such allowance proper and necessary.</p> <p>3. The excess over this sum of §700, paid by the trustee to the father-, must be returned by his estate to the trust fund, hut no interest must be charged thereon, as it was paid in good faith, by mistake as to his discretionary power under the will, and he had no use or benefit of this excess of interest. It is not a case for the allowance of interest upon interest.</p> <p>4. Where no account has ever been reported by the trustee for allowance, and where the trust funds have been retained in his hands, without distinct and separate investment, no commissions will be allowed to the trustee.</p> <p>5. It is a fundamental principle in regard to trust estates, that the trustee shall derive to himself no gain, benefit or advantage, by the use of the trust funds. Whatever of profit may be made, shall belong to and become piarcel of the trust estate.</p> <p>6. Where the trustee had a large estate invested in lands, stocks, business, &c., and the trust fund was in his hands as a loan before the creation of the trust, and the trust moneys cannot be traced to ascertain the profits made, or the foi'm of investment, it is proper, in stating his account, to make annual rests, and charge interest upon interest.</p> <p>7. Interest with annual rests allowed on the §1000 retained by the trustee as commissions, which are disallowed ; also like interest on the balances of income in the trustee’s hands, after the death of the father, which were held and used by him.</p>

<p>1. The general rule is, that the residuary legatee is entitled as well to a residue caused by a lapsed legacy, as to what remains after payment of debts and legacies. The only exception to the rule is where the words used show an intention, on the part of the testator, to exclude the lapsed legacy from the operation of the residuary clause.</p> <p>2. Where, after a legacy to his wife, and certain general legacies, the testator gives “ whatever of my property shall remain after payment of the above,” to his residuary legatees, and the legacy to the wife lapses by her death in testator’s lifetime, such legacy falls into the residue, and does not go to the next of kin.</p>

<p>1. The Court of Chancery, under its general power to annul fraudulent contracts, in the absence of ecclesiastical courts, and of any provision in the constitution for a different tribunal with requisite authority, has power to annul a contract of .marriage for sufficient fraud.</p> <p>2. A fraudulent concealment of pregnancy at the time of marriage, when the husband had had no connection with his wife, and was ignorant of her unchastity, and a child was born within two and a half months after the marriage, is such fraud as will entitle the husband to a decree of nullity of marriage, where he has not acquiesced, but left his wife as soon, as the fraud was discovered.</p> <p>3. Neither ante-nuptial incontinence, nor the mere mistake of a husband as to the paternity of a child born after marriage, but begotten before by another, when he has himself been guilty of criminal lewdness towards his wife before marriage, nor false representations in regard to family, fortune, or external condition, are sufficient to avoid tbe marriage contract.</p>

<p>ViJk-iv i lie holder of a promissory note mado W V., M. & C. was induced to surrender it, and take therefor a note of Yds alone, upon the strength of a representation made by V. that be had $3000 worth of stock in a certain bank, and could get the note discounted for him, when Y. was not, in fact, the owner of the stock, and M., one of the joint debtors upon the surrendered note, and the Into owner of die stock, was present, and acquiesced in Yds representation, and in effect reiterated it, M. is estopped from asserting his title to the stock, as against the, holder of the note.</p>

<p>1. Under the sixth section of the statute of descents, the class of kinsmen avIio are next in degree of consanguinity to the intestate, take the land in exclusion of those who stand in a more remote degree.</p> <p>2. By force of this section, the common latv right of representation does not exist. So that first cousins take in preference to cousins of a more distant degree.</p> <p>3. In calculating the degrees' of consanguinity in this state, the civil and not the canon law rule is to be resorted to.</p>

<p>The opinion of the Chancellor is reported in 8 C. E. Green 16.</p>

Cross-appeals were taken from the final decree in the Court of Chancery, made in accordance with the opinion of the Vice-Chancellor upon exception?! to the master's report, and upon certain questions adjusted by paid decree, agreeably to bio recommendation. The opinion is reported ante, p. 298.

<p>1. Two arbitrators, after hearing the evidence and arguments, being unable to agree, chose an umpire to act as third arbitrator, and 1 lie three met without notifying the parties of the appointment of the third arbitrator, or of the time and place of their meeting, giving no opportunity to tjie panics to be heard — Held, that their action, though believed by themselves to be lawful and proper, was misconduct in the sense of the law, and fatal to the validity of the award.</p> <p>2. When a new arbitrator is chosen by the original arbitrators, either party has the right to adduce additional testimony and additional arguments if he wishes to do so. lie is entitled to such notice of the time and place of meeting as will enable him to prefer his request to be heard.</p> <p>3. Sueli notice of appointment, and of time and place of hearing, may be waived by the agreement or conduct of the parties.' But such waiver must be clearly proved. The burden of proof is on the party asserting it.</p> <p>4. Every reasonable presumption will always be entertained in favor of the validity of the award, as in case of a judgment, and the party seeking to impeach it will, therefore, have upon himself the burden of proof to destroy the presumption. But this presumption is destroyed by an admitted absence of notice, and such absence can be cured only by new matter affirmatively shown. The burden, in the latter case, is shifted from the party impeaching to the party supporting the award.</p> <p>5. Where notice of the appointment and of the time and pilace of meeting is given, and a party remains inactive and silent, a waiver may be inferred.</p> <p>6. The award in this case not necessarily excessive.</p>

This was a motion to dismiss an appeal from an order r-living further proceedings in the original suit until the cross-bill should be answered, and until further order.

The testator made his will as follows : “ In the name of God, amen.

<p>This was an appeal from a decree made in accordance with the opinion of the Vice-Chancellor, reported ante, p. 315.</p>