Volume 27 — New Jersey Equity Reports

<p>Motion for injunction. On bill and answer and order to show cause why injunction should not issue.</p>

<p>X, A gift of a fund, with limitation over in the contingency of the legatee’s dying without leaving lawful issue, entitles the legatee .to possession •of the fund.</p> <p>2. The rule is settled, that interest begins to run on general legacies to which no time of payment is fixed, from the expiration of one year from testator’s death.</p> <p>3. The rule that a general legacy in favor of a child will draw interest from testator’s death, when given for his maintenance, does not apply to a ■legacy to adults; nor where the maintenance of the child is otherwise provided for, either by the will or in any other mode.</p>

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

<p>1. Where executors are authorized to sell the real estate of their testator at their discretion, and the sale is to be made with a view to the investment of the net proceeds on a special trust, the purchaser is not bound to see to the application of the purchase money.</p> <p>2. An allegation that the purchase money of real estate sold by executors was not paid to or received by them “ as executors,” and that they, “as executors,” received no consideration for the conveyance, is not equivalent to an averment that no consideration was, in fact, paid.</p> <p>3. If, by such allegation, the pleader intended to state that, although the consideration was paid to the executors, it was paid in such a way as that it ought not to be regarded as having been paid to or received by them in their representative or trust capaoity, the facts should have been set forth so as to enable the court to determine the character of the payment.</p> <p>4. The rule, that notice of facts to an agent is constructive notice thereof to the principal himself, has no application to a case of a sale to a corporation, by its president, of property purchased by him in his private capacity; in such a transaction, the officer, in making the sale and conveyance, stands as a stranger to the company.</p> <p>5. When an officer of a corporation is dealing with them in his own interest opposed to theirs, he must be held not to represent them in the transaction so as to charge them with the knowledge he may possess, but which he has not communicated to them, and which they do not otherwise possess, of facts derogatory to the title he conveys.</p>

On petition of The Ehode Island Locomotive Works Company, for an order requiring the receivers of the defendants to deliver to the petitioners' certain certificates of indebtedness, which the receivers were authorized by this court to issue, and to which the petitioners claim to be entitled.

<p>1. The rule in equity is well established, that where mortgaged premisesl are sold in separate parcels successively to different purchasers, with covenants against encumbrances, the parcels are liable to sale ,to. satisfy the mortgage, in the inverse order of their sale. But the rule will not bei applied in any case where its application would work injustice. ■</p> <p>2. A conveyance of part of mortgaged premises, expressly subject to existing mortgages, is an assurance to the subsequent purchaser of the other parts, that the property will be subject to its due proportion of the burden of such mortgages.</p> <p>3. Where part of mortgaged premises is conveyed subject to mortgages thereon, and the rest of the property is sold and conveyed in fee in parcels to other persons, the part first conveyed is bound to pay its due proportion of the mortgages, according to the comparative value of the respective portions at the time of its conveyance.</p> <p>4. A purchaser of part of mortgaged premises is not entitled to the benefit! of a release by a prior mortgagee from the lien of his mortgage, of another part of the premises, when the mortgagee had not actual notice of the conveyance at the time of making the release.</p>

<p>1. Where a bequest was made to a Sunday school connected with an incorporated church, the amount to be placed at interest on bond and mortgage so that it might receive annually the interest for the purpose of procuring books for said school, the court appointed the church corporation trustee to receive the money bequeathed, on the trust declared in the bequest.</p> <p>2. A bequest to A, B and C and their heirs, with direction that the money be invested, and the interest “be divided equally between them forever,” is a gift to A, B and C as tenants in common, and there is, there, fore, no survivorship. The fact that the gift is to them and their heirs, would not limit their interest in the fund to a life estate, unless there were a clear expression of intention that the gilt to them should be only a life estate.</p> <p>3. The gift of the produce of a fund, without limit as to time, or further disposition of the fund or interest, is a gift of the fund itself.</p> <p>4. A bequest by codicil to a legatee named in the will, “ in full ” of all bequests to such legatee, held to be “ in lieu ” of such bequests.</p> <p>5. Where, after a gift by his will to A, B and C, absolutely, the testator, by a codicil, gives to A a legacy in full of all bequests to him, thereby revoking the bequest to A of his share in the original gift, such revocation, and the fact that that share is not otherwise disposed of, will not give to B- and 0 the entire fund; they will each be entitled to one-third of it only.</p> <p>6. A gift to A and her children of “ $1000, to be invested on bond and mortgage of real estate, and the interest to be collected and paid over to-them annually, and equally divided between them,” is a gift of the fund absolutely, and the legatees take as tenants in common in equal shares? the children each taking an equal share with their mother. They are entitled to be paid at once, notwithstanding the direction to invest.</p> <p>7. A bequest to two townships of a fund to be invested on bond and mortgage for the use and benefit of the inhabitants of those townships, the interest to be divided between the townships in proportion to the number of inhabitants in each, for the purpose of educating their poor orphan children, and in case the interest should not all be consumed for this purpose, the balance to he appropriated annually to the poor widows of the township, is a charity which this court will sustain and effectuate.</p> <p>8. The township corporations are not proper trustees of the fund. A trustee will be appointed b.y the court.</p> <p>9. A gift of a fund to the New Jersey State Lunatic Asylum, the interest to be appropriated annually under the superintendence and direction of Dr. B., the superintendent of the institution, and his successors in office forever, for the purchase of books and papers for the benefit of the inmates, was directed to be paid to the treasurer of the institution.</p>

<p>Bill for relief. On final hearing on pleadings and proofs.</p>

<p>Bill for relief. On final hearing on pleadings and state- of the case.</p>

<p>On motion to discharge ne exeat, on bill and answer and! affidavits to each annexed.</p>

<p>An application to amend a sworn answer, on the ground of mistake discovered at the time the answer was read to the party making it, made more than two years after the discovery and filing of the answer, without excuse for the delay, and upon feeble and unsatisfactory proof of the alleged mistake, refused.</p>

<p>A mortgagor has the right to purchase a mortgage given by himself and wife on property belonging to her, and it is a valid security in his hands. It is no ground for declaring such mortgage satisfied in the hands of an assignee, that the consideration of the assignment was paid by the mortgagor, and that it was held by the assignee to the mortgagor’s use.</p>

On bill to foreclose and answers, and cross-bill and answer. Motion to strike out certain parts of the answer of The Clarksville Manufacturing Company, and part of the answer of certain other defendants to the original bill, and motion to dissolve the injunction issued on the cross-bill.

<p>The “ act relative to sales of land under a public statute or by virtue of any judicial proceeding,” requires the first publication of the notice in the newspapers, to be made four whole weeks next preceding the day appointed for the sale.</p>

<p>Decree of divorce from bed and board forever, on the ground of extreme ■■cruelty, consisting mainly in gross abuse by the husband of his marital rights, rendering it unsafe for the wife to cohabit with him, or to be under his ■dominion or control; the parties left at liberty to apply by mutual, free :and voluntary consent, to be discharged from the decree.</p>

<p>The executor of A sued B and C jointly, upon a joint and several ¡promissory note, held by his testator at the time of his death, and recovered judgment. Subsequently B filed his bill in this court, alleging that he neither signed the note nor authorized any one to do so for him, and that he did not know of its existence until after A’s death. It further alleged that C fraudulently signed complainant’s name to the note, and that the executor sued the complainant and 0 jointly, so that the complainant, by reason of the executor’s suing in a representative capacity, could neither testify himself, nor avail himself of C’s testimony, to prove the fraud. It prayed an injunction against the executor and the sheriff, to restrain a sale. The executor pleaded the trial and judgment in bar, and answered the bill. Held, that the fact that the complainant was unable 'to avail himself, on the trial at law, of his own testimony or of that of 0, was no ground for relief.</p>

<p>Compensation of receivers of an insolvent railroad company.</p>

<p>In partition. Motion for order to confirm master’s report.</p>

<p>1. A mortgage free from usury in its inception, is not affected by a subsequent agreement to forbear suit in consideration of the payment of .illegal interest.</p> <p>2. Interest paid in excess of the legal rate, under agreement for its payment, in consideration of forbearance to sue, will be credited on the .amount due on the mortgage.</p> <p>3. Complainant’s title, stated in the bill, not being complete, he was ■permitted, at the hearing, to amend his bill by setting up his title proved in the cause, to the mortgage, as administrator; his title, though questioned on the hearing, not being questioned by the answer.</p>

<p>1. A tenant in common is not chargeable to his co-tenant for the latter’s share of the rental value of the premises, which are equally open, to and may be occupied by both.</p> <p>2. A tenant in common who cultivates the land and receives the- entire proceeds, is chargeable to his co-tenant for his share of the profits.</p>

<p>Where a testator ordered his executors to pay, at his son’s death, to the children of his son, if the latter should leave any children, a sum of money, the executors were ordered to invest the money, and to pay the interest, during the life of the son, to the residuary legatees.</p>

<p>A power to sell all or any portion of testator’s residuary real estate, at the discretion of his executors, held not to be affected as to a share thereof, by a devise of that share, the testator having evidently intended that the share should be subject to the power.</p>

<p>Bill to foreclose. On petition of Ella C. Stoy and others, •to be admitted as parties defendant to the suit.</p>

<p>Bill to establish a trust under a canceled deed of assignment for the benefit of creditors. Motion for injunction.</p>

<p>A mortgagee of land, liolding an assignment of stock as collateral to liis mortgage, released the latter, with actual notice of the existence of a subsequent mortgage on the land ; held, that the prior mortgage was, so far as the right of the subsequent one was concerned, satisfied to- the extent of the. value of the stock.</p>

<p>Bill for relief against judgment at law. Motion to dissolve injunction, on bill and answer, and affidavits annexed thereto respectively.</p>

<p>1. Equity -will, as a matter of course, and w-itlrout any agreement to that effect, substitute, in the place of a creditor, a person, who advances moneys to pay the debt for which,he is bound as-surety...</p> <p>2. A director of an insolvent railroad company is entitled- to reimbursement out of the funds in the li-ands of a receiver, for advances made by him to save the property against an unquestionable lien. Ho tlie amount-, of such advances, his claim is paramount to that of mortgagees whose-encumbrances are subordinate to the lien,</p> <p>3. A person who pays a debt of a railroad company, incurred' under-contracts of purchase for rolling stock, which, if not paid, would entail, serious loss and embarrassment to tlie company, under agreement with the-company for security for re-payment by subrogation to the rights of the-vendors under the contract, is entitled' to-be subrogated to the rights-of the-vendors to the amount of his advances..</p> <p>4. That the whole debt has not been paid, under the contract,.is no objection to the subrogation of the party making.such paymenti Such subrogation is subject to the rights of the vendors under the contraot, but is superior to any claim of the receivers upon the property,.in respect to payments made by them under the same contract..</p>

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

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

<p>Final hearing on bill and answer.</p>

<p>1. A defendant in a suit in equity has a right to insist that he shall be distinctly and plainly informed of the nature and foundation of the claim made against him, and to be notified by the bill what he has said or done which gives his adversary a right of action against him. An assertion of a claim against the defendant, by way of inference arising out of a recital in the bill of the finding of a master under an order of reference on ex parte proceedings by the complainant on petition, is insufficient.</p> <p>2. The Court of Chancery has concurrent jurisdiction with the Orphans Court in the settlement of the accounts of executors and administrators, and may assume exclusive jurisdiction at any time before decree of allowance and confirmation; but where the settlement is proceeding regularly and properly in the Orphans Court, and there is nothing in the conduct of the executor or administrator, or in the nature of the estate or in the questions growing out of its due settlement, making it necessary or proper that this court should take control, the settlement will be permitted to proceed in that tribunal.</p> <p>3. Where, in the exercise of its unquestioned power, the Orphans Court has pronounced a judgment in a proceeding, in a matter over which the Court of Chancery has concurrent jurisdiction with that court, which proceeding was pending there before the institution of a suit in this court, that judgment, so far as it embraces the matters in controversy here, is conclusive against all persons, unless removed by appeal, and is not open to review in this court except upon proof of fraud or mistake.</p> <p>4. A claim, arising out of a single transaction, where it is alleged one person becomes a creditor and another a debtor, cannot be made the foundation of a suit in equity, especially where no discovery is sought.</p>

<p>1. Equity will not give any aid not demanded by strict rules, to a party-seeking to set aside a sheriff’s sale under an execution issued out of this court, where, since such sale, he has procured a sale of the same premises-to be made under a judgment recovered by himself, while he was disputing the validity of such prior sale, and without the slightest, notice to any of' the persons interested, except such as was given by adjournment from week to week for more than a year.</p> <p>2. A general verbal direction by a sheriff to an assistant in his office, to-make the sales and adjournments necessary on a given day, confers no authority to make a sale, and a sale made under such direction will be set aside.</p> <p>3. A sheriff cannot constitute a special.deputy to serve even' an original, writ, by a mere verbal command, without delivery of the writ.</p> <p>4. In the absence of statutory provision^ the general rule is that judicial sales shall be made in the presence and under the immediate supervision, of the officer designated in the decree commanding the sale. The statute(Sevüion 767,) however, held to be declaratory upon the subject.</p> <p>5. A special deputy of a sheriff is in no sense a public officer, but merely the private agent or officer of the sheriff, and neither His appointment nor-his relation to the sheriff can be presumed from his acts.</p> <p>6. Where the complainant under foreclosure proceedings is the purchaser of the mortgaged premises, the sale may be set aside on petition; a bill is not necessary.</p>

<p>On demurrers to bill.</p>

<p>Final hearing on bill, answer, and proofs.</p>

In September, 1867, Johnson Van Cleef, George Locker and 'William Patterson, representing a voluntary association of Christians, purchased and paid for an acre of land, at Pine Brook, Atlantic township, Monmouth county, with a view of erecting thereon a house of worship. Possession was taken of the land at once, and a church edifice, costing between $400 and $500, erected thereon.

<p>This case was heard on bill, answers, and oral proofs.</p>

On motion (on order to show cause) for attachment for contempt for violation of injunction, and counter motion to* dissolve the injunction.

Bill for relief. Motion, for attachment against Dringer for •contempt for violation of injunction, and motion for a receiver, ;and motion on Dringer’s behalf to dissolve the injunction. On bill and affidavits and petition of complainant, and affidavits .and Dringer’s answer.

On motion to dissolve injunction, on the information and the affidavits annexed. .The information is filed by the Attorney-General, at the relation of the.Board of Riparian Commissioners, for an injunction against the Hudson Tunnel Railroad Company, to restrain them from u possessing, entering upon, going or being upon the land of the state mentioned in the information, or any part thereof, for the purpose of making their tunnel on or in that land, and from doing any work or…

<p>1. Two-agreements made with different parties, giving them the refusal of the purchase of certain lands, held together to constituí e a binding obligation on the defendant to convey to the complainant the lands in question in fee simple, for the price therein specified, if Lhe oHér were duly accepted within the time limited. The offer held to have been accepted by the complainant’s making tender, and offering a deed for execution within, the limited time.</p> <p>2. To constitute a misrepresentation which will prevent a decree foir specific performance, the statement in question must be so material to the-contract built on it, that, if the statement be false, the contract becomes one which- it would be unconscionable for the party who has made the statement to enforce. The misrepresentation must be shown to have operated to-the prejudice of the defendant.</p>

<p>1. A voluntary partition between tenants in common, in all respects-fair, equal and just, upheld, and a lien upon the lands held in common, under a judgment against one of the co-tenants, held to have been transferred to the lands conveyed in- the partition to the judgment debtor.</p> <p>2. If a judgment debtor has committed waste of premises held by hiirn . and another person, as tenants in common thereof, a purchaser at the sale-of his interest in. the property under execution on the judgment must, inequity, accept the position of the debtor in respect to the partition ; for-partition in. equity will, be made on equitable terms and principles.</p>

<p>Bill for relief. On final hearing on pleadings and proofs.</p>

<p>A agreed with B, at the execution of a mortgage by the former to the latter, that part of the amount for which it was given, should be applied to the payment of two mortgages, then liens upon the premises embraced in that mortgage, and certain other lands, and that the balance of it should he expended in building a house on the premises covered by B’s mortgage. A had purchased the lands, subject to the two mortgages. At the execution of- the mortgage, A’s wife was a minor. Afterwards, but before the registry of the mortgage, a building was commenced on the lot covered by the mortgage given by A to B. Mechanics’ liens for materials furnished in the construction of the building, are claimed to be liens prior to B’s mortgage. Held—</p> <p>1. B was subrogated to the rights of the mortgagee under the mortgages on the premises, when he took his mortgage, to the extent of the money paid by him on account of those mortgages. To that amount, with interest, his lien is prior to that of the lien claimants, and has a prefer, ence over the inchoate right of dower of A’s wife in the land.</p> <p>2. B’s mortgage is entitled to priority over the dower right of A’s wife in the building, to the extent of the money advanced by B, which was actually expended in the construction of the building.</p> <p>3. The priority of B’s lien is not affected by the fact that the payment on account of the existing mortgages, was made after the building was begun.</p> <p>4. A’s wife has no interest in the building.</p> <p>5. The lien of A’s wife, by virtue of her inchoate right of dower, is next in order of priority in the land, after the lien of B, to the amount paid by him on account of the existing mortgages; next, the lien claims, and last, the balance of the amount due on B’s mortgage.</p>

<p>• 1. A mortgage executed, bona fide, to secure the payment of advances to be used in the construction of a building on the mortgaged premises, is a prior lien to claims for materials furnished in the construction of such building, with notice of the mortgage, to the full amount of the mortgage, if so much was advanced. That the agreement, under which the advances were made, was verbal, and not in writing, does not affect the lien.</p> <p>2. Nor does the claim of inchoate right of dower in the lands mortgaged, on the ground of the alleged minority of the mortgagor’s wife when the mortgage was executed, set up in her answer, affect the lien; her answer having been filed after the bill had been taken as confessed, without consent or leave of the court.</p>

<p>Creditor’s bill. On final hearing on pleadings and proofs.</p>

<p>Eill to foreclose. On final hearing on pleadings and proofs.</p>

<p>1. Decree of divorce. The defence of insanity held not to have beern established.</p> <p>2. ' Depravity of character and abandoned habits, in themselves, are not evidence of insanity.</p>

<p>1. As between a purchaser for value, holding under a deed with the usual full covenants, including warranty general, and a prior mortgagee, the right of such purchaser to require the mortgagee to have, recourse for the satisfaction of the mortgage to the part of the mortgaged premises owned by the mortgagor, before looking to the part conveyed to him, is undoubted.</p> <p>2. If the mortgagee, in such case, with knowledge of the rights of the' purchaser, and without his assent, releases from his mortgage any part of the mortgaged premises which is, in equity, liable for the mortgage debt before recourse can be had to the land of such purchaser, the mortgage will, as against the latter land, be discharged to the extent of the value of such released land at the time of the release; and if its value be equivalent to the whole amount of the mortgage, the land of the purchaser will be wholly discharged from the mortgage in consequence of such release.</p> <p>3. As between a mortgagor and his grantee by voluntary conveyance,, with covenant against encumbrances and warranty general, the latter liasa right in equity, in the absence of any facts which would disentitle him tO' the protection, to cast the burden of an encumbrance existing at the time of the conveyance, upon the land of the former, subject to the encumbrance.</p> <p>4. But where such mortgagor conveyed to a voluntary grantee (in this case his wife) subject to a mortgage, and the covenants were inserted without his directions, and he executed the conveyance in ignorance that they were in the deed, the burden of the encumbrance is not shifted.</p> <p>5. Testimony of the grantor that his voluntary grantee understood that the land conveyed to her was subject to the mortgage, is admissible to-rebut the equity which would otherwise arise under the deed to shift the; burden of the mortgage to that part of the premises retained by himself.</p> <p>6. The effect of such testimony would be to make that part of the-premises conveyed to her, liable to the payment of its proper proportion of the mortgage debt.</p>

<p>1. A mortgage given to a building and loan association by a holder of its stock, is not usurious, because it requires monthly payments of interest, besides fines and impositions, in accordance with the provisions of its • constitution.</p> <p>2. In such a case, as between the association and a second mortgagee of the mortgaged premises, the slock held by the association as collateral security, was ordered to be sold, and the proceeds applied to the payment of the amount due on the mortgage, before recourse was had to the mortgaged premises.</p>

<p>' An application to compel a trustee for mortgage bond-liolders to redeem certain property, refused; the necessities of the trust estate not being regarded by the court such as to make it its duty to make the order, and an agreement, which was the foundation of the application, being held to be merely executory, essentially outside of the main issues in the cause, and practically for the benefit of only the parties who may enter into it, without regard to the interests of others interested in the trust estate.</p>

<p>Bill for relief. On final hearing on pleadings and proofs-.</p>

<p>Bill to foreclose. On exceptions to answer of defendant . Minton.</p>

<p>Rill to foreclose. On final hearing on pleadings and proofs.</p>

<p>•Sheriff's sale set aside, on the ground of surprise, upon terms.</p>

<p>The Court of Chancery will only assume jurisdiction over the settlement ■of intestate’s estates, for cause.</p>

<p>Bill for specific performance. On final hearing on pleadings and proofs.</p>

<p>A decree dated February 13th, 1873, and filed on that day, not being in accordance with the opinion of the court, it was ordered that it be taken from the files, and a new one was drawn under specific directions of the then Chancellor. Jt was presented not to him, but to his successor in. office, by him signed, and then filed. Motion to take the latter decree from the files, as improvidently signed, refused. An order should have been taken, directing the latter decree to be filed nunc pro tunc. Such order made, nunc pro tunc.</p>

<p>Bill for relief. On motion to dissolve injunction restraining the defendant Schafer from prosecuting a suit at law for possession of premises demised by Jarvis to Henwood. On bill and answers.</p>

<p>Bill for relief. On final bearing on pleadings and proofs.</p>

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

Motion on behalf of Dringer t©> dissolve- injunction and t©> discharge the attachment against him, and counter-motion on behalf of complainant for further time to exhibit interrogatories under the attachment. Mr. J. W. Griggs, for Dringer. Mr. Cortlandt Parker, for complainant.

<p>Bill for relief. On motion to discharge ne exeat and to cancel bond given thereon, and to vacate the order for the writ. On the bill and the answer of the defendant Bowman and the affidavits annexed thereto, respectively.</p>

<p>Bill, for relief. Motion to dissolve injunction, on bill and answer and affidavits annexed thereto, respectively.</p>

<p>1. Under a testamentary direction, “that if either of testator’s sons should die without leaving lawful issue, the widow of the decedent should receive one-third of the rents of the real estate devised to him by the will,” .&c., held, that the benefit of the provision not being restricted to a wife living atitlie time of the making of the will, or at testator’s death, that person who was the wife at the time of the son’s death was entitled to the rents.</p> <p>2. An objection of non-joinder for want of a party defendant, taken at the hearing, will not lie where, so far as the complainant’s rights are concerned, the interest of such party is represented by the defendants, and the presence of the absent party is not necessary to a decree against the ■objectors.</p> <p>3. Where several persons liable for rents permit one of their number to take sole actual possession of the property charged with the rents, and use ■it, all are chargeable.</p> <p>4. A question of fact is not reviewable on the re-hearing of a decree .advised by the Vice-Chancellor, unless he certify that it should be re-heard «pon the evidence.</p>

<p>An injunction issued to restrain defendant from taking advantage at law of a release alleged to have been given at his own solicitation and on what was substantially a promise that he would not seek to take advantage of it, was retained till the hearing, though the defendant had 'answered all the equity of the bill.</p>

<p>Bill for injunction to stay a suit at law. Motion to dissolve the injunction on bill and answer.</p>

<p>An injunction, issued on bill for account by a member of a dissolved firm against his late co-partner, restraining the latter from collecting partnership money or intermeddling with the partnership concerns, continued until the hearing; the defendant not denying the statements of the bill) that he refuses to account, and it appearing, from written statements made by him and set out in the bill, that he has no interest in the assets, and the claims of his answer as to capital contributed by him, not being substantiated by those statements.</p>

<p>1. The Court of Chancery exercises concurrent jurisdiction with courts of law in cases where, though the rights are of a purely legal nature, other and more efficient aid is required than a court of law can afford, to meet the-difficulties of the'case and insure full redress.</p> <p>2. The Court of Chanceiy will take jurisdiction of a suit whose subject-matter is properly cognizable at law, and though adequate relief may be given there, in order to a discovery; and in this case, under the-circumstances, it was held that a suit in equity might be maintained for discovery of the party who should be sued at law, and as to the liability of the parties against whom the bill was filed.</p> <p>3.. An agreement by the Delaware and Raritan Canal Company, guaranteeing to- A, his heirs and assigns forever, out of the feeder of the canal, sufficient water for three runs of stones at all times, and for a fourth run of stones at all times except when the water could not be taken without injury to the company, &o.,. in- consideration of a grant of land by A to the company for its purposes according to its charter, and the release of damages, awarded against the company in A’s favor on proceedings in condemnation, and the relinquishment by A of valuable water rights in the Delaware river, held not to have been ultra vires.</p>

<p>Motion to set aside sheriff’s sale of mortgaged premises. On petition of complainant, and affidavits.</p>

<p>An injunction, issued to restrain municipal authorities from increasing the debt of the city by contracting in its name and on its credit for municipal improvements, and for furnishing the city hall, &c., on the ground that the indebtedness of the city was thereby increased beyond the amount allowed by its charter, and that the proposed expenditures were not included within the appropriations for the year, was dissolved as to the furniture, on the ground of laches in filing the bill till after the contracts therefor had been made, and the parties had entered into bonds to perform them; those persons not being made parties to the bill, and the bill neither seeking to restrain them from performing the contract, or the city from compelling performance.</p>

<p>Bill for construction of will. On final hearing on bill and answer.</p>

<p>Motion to set aside decree of dismissal.</p>

<p>A bona fide mortgage, given after the entry of a personal decree of this court against the mortgagor for the payment of money merely, but before the filing of a statement or abstract of the decree in the Supreme Court, in accordance with the provision of the fifty-ninth section of the chancery act, is entitled to priority over the decree.</p>

<p>Bill for relief. Motion to dissolve injunction on bill and •answer.</p>

<p>Heard on bill and answer.</p>

<p>On demurrer to bill for want of equity. Enoch Bolles, by will, gave to his son Enoch and his son's wife, Phebe, the use\ and full enjoyment of the one-half part of his estate, real and personal, during their joint lives, for their support, and the/’' support, maintenance and education of their children. Power of sale is given to the executors, of whom Enoch is one, which they are to exercise whenever, in their judgment, it may seem for the best interest of the estate to sell, and for the purpose of making sale they are invested with the fee. The proceeds of sale are to be invested in other real estate, or in safe securities, for the benefit of those to whom the testator directed it should finally be distributed. On the termination of the life interest given to Enoch and his wife, the corpus of the gift is to go to the testator’s grandchildren, or their heirs-at-law, in such shares and proportions as Enoch shall direct by will. Judgments have been recovered against Enoch and his son John, and their interests in the testator’s real estate have been seized under execution, and advertised for sale-The bill seeks to have the sale perpetually enjoined.</p>

<p>1. As a general rule, testimony, which is merely incompetent or irrelevant, will not be suppressed before hearing, but if it has been elicited by leading interrogatories it may be suppressed before, so that the witness may be re-examined.</p> <p>2. A man marrying a woman who is an executrix, by the marriage becomes an executor in her right, and renders himself a trustee with her of the assets of the estate, and as such, may be compelled to account.</p> <p>3. To a bill against a woman as executrix, her husband is a necessary party.</p> <p>4. When the husband of a woman who is an executrix or administratrix, survives her, he is liable for whatever assets came to her hands or his own, during coverture.</p> <p>5. A communication made by a husband to his wife respecting trust property which it is their joint duty to carefully preserve and surrender to the lawful owner when lawfully entitled to it, is not confidential within the meaning of the statute relieving husband and wife from obligation to disclose any confidential communication made by one to the other, during coverture.</p> <p>6. Where, under a bill for an account against an executrix and her husband, the executrix produced in evidence, upon her examination before the master during her husband’s absence from the country, certain letters, papers, and an account book of her husband’s, which she found among his papers in their house during his absence, an application for an order suppressing the wife’s testimony and the documents produced by her, and directing the documents to be returned to his solicitor, on the ground that their production was a breach of duty and a betrayal of confidence, was refused; it not appearing but that the documents might be material to the issue, and if they related to the trust property the husband was bound to jiroduce them.</p> <p>7. The court will not stop to consider how papers material to the issue were obtained by the party offering them, whether lawfully or unlawfully; if they tend to elucidate the point in dispute, the court is bound to receive the light they give.</p>

<p>1. It is competent for a court of equity, upon an allegation that a judgment is founded in fraud, to inquire whether the cause of action spread upon the record is wholly fictitious and groundless; and also, whether the plaintiff fraudulently withheld from the court pronouncing it, any fact which, if disclosed, would have shown he had no cause of action.</p> <p>2. In order to relief from a judgment on the ground of fraud, the proof in demonstration of the fraud must be so clear and strong as to render it certain the plaintiff knew, at the time he brought his suit, he had no right, of action, and was without expectation of obtaining judgment unless he-was successful in depriving the defendant of an opportunity of making defence.</p> <p>3. A judgment of divorce obtained in Illinois, declared void, on the-ground that the cause of action on which it purports to be founded, was fabricated.</p> <p>4. A judgment by a court of one of the states, divorcing a husband and wife domiciled in different states, is not entitled to extra-territorial recognition in case the party procuring it could have given the defendant actual notice of the suit, but refused or neglected to do so.</p> <p>5. The right of every person accused, to have an opportunity to makedefence, is secured by a rule of general law ; a judgment pronounced in violation of it is not entitled to general recognition.</p>

<p>1. An allegation that there is an outstanding paramount title will not enable the owner of the equity of redemption to arrest the enforcement of a purchase money mortgage.</p> <p>2. If there has been an eviction by title paramount, or an action ¡spending by an adverse claimant to try the title to the mortgaged premises, the court will interfere. But where the aid of the court is sought on the ground of the pendency of such an action, the record must be produced or proof of its contents given, that the court may be advised that such is the nature of the action.</p> <p>3. Qutjure. .Whether leave would be given, on the hearing, to amend, or to file a supplemental answer to a suit for foreclosure of a purchase money mortgage, to set up a defense of eviction from the mortgaged premises.</p>

<p>1. To render the withdrawal of a wife from the house of her husband such an abandonment as to constitute desertion in legal estimation, it must appear she left her husband, and remained away from him of her own accord, without his consent, and against his will, continuously, for the full, period of three years.</p> <p>2. Abandonment is not voluntary, where it is compelled by personal violence, coarse language, and constant neglect.</p> <p>3. Desertion brought about by the misconduct of the husband cannot be made the ground of divorce on his application.</p> <p>4. Language used by the petitioner, held to have given the defendant a. right to infer the petitioner’s consent to a separation.</p>

<p>Bill for injunction to stay execution at law. Motion to ■dissolve injunction, on bill and answer.</p>

<p>Bill for relief. On final hearing on pleadings and proofs.</p>

<p>1. The proof of the loss of a deed, in this case, held to be sufficient to warrant the admission of secondary evidence of its contents.</p> <p>2. Such secondary evidence held to establish the fact that the grantee took his deed with full knowledge that it contained a covenant of assumption of a mortgage upon the property conveyed, and with knowledge of the-nature of the liability thereby assumed.</p> <p>3. Where the object of the bill is not to prove title by a deed alleged to-be lost, but to prove a covenant of the grantee contained therein, it is not necessary that the subscribing witness to the deed or the officer before whom-the acknowledgment was taken, should be produced, or that there should-he evidence of the impracticability of obtaining their testimony, other satisfactory evidence of the covenant being offered.</p> <p>4. A parol assumption by a grantee of mortgaged premises, made at the time of the conveyance to him, makes him liable to a personal decree for deficiency.</p>

<p>In partition. On exceptions to master’s report as to whether partition can be made without great prejudice to the interests of the owners.</p>

<p>Stock, assigned by a shareholder of a loan and building association as collateral security to a mortgage, (the first upon the mortgaged premises,) given by him. to the association, will, as between the association and a second mortgagee of the land, be applied to the payment of the mortgage before recourse is had to the land ; and this equity will not be defeated by a levy on the stock under a judgment against the mortgagor.</p>

<p>Bill to foreclose. Motion to set aside execution for sale <of mortgaged premises, and open decree and let in two of the defendants to answer. On petition and depositions.</p>

<p>1. The circumstances and facts constituting the usury, and not mere inferences, must be set forth in an answer setting up the defence of usury.</p> <p>2. Where the defence of usury rests upon the laws of another state, the laws must be pleaded, and the pleading must set out what the laws are.</p> <p>3. Where, in such case, an answer alleges violation of laws, the presumption is, in the absence of any averment to the contrary, that the laws are those of this state.</p> <p>4. The laws of this state on the subject of usury, do not apply to a transaction having its whole inception and completion in another state.</p>

<p>Bill to foreclose. On exceptions to master’s report upon exceptions to the answer of Peter "W. Melick.</p>

<p>1. Where the injury complained of is, in its nature, a continuing one, -and the remedy at law must, therefore, be by successive suits, if the defendants persist in inflicting the injury, and an action for damages would be -wholly inadequate for the protection of the complainant’s rights, he will <not be put to his remedy at law.</p> <p>2. Where, from the nature of the relief sought, performance of a contract in specie will alone answer the ends of justice, equity will' decree .■specific performance.</p>

<p>Bill to foreclose. On final hearing on pleadings and proofs.</p>

<p>1. Where, under a submission to arbitration, a third arbitrator is-called in by them, who hears simply the statements of the other two, in. the absence of the parties, and without any notice to one of them, their award made under such circumstances will not be sustained, as against the party who received no notice.</p> <p>2. Such party was held not to be barred from relief against the award.,, on the ground of acquiescence, by the fact that after the award had been delivered to him he continued for two weeks to settle the business of the-late firm, and made up a statement in accordance with the award, and delivered it to his late partner, the other party to the award; it appearing that he was dissatisfied with and complained of it, and that the only reason, why he did not take steps to set it aside was that he supposed the award was conclusive against him, and could not be litigated.</p>

<p>Bill to foreclose. On final hearing on pleadings and proofs.</p>

<p>1. An alleged parol assumption of a mortgage upon the premises, claimed to have been made at the time of their conveyance, held not proved.</p> <p>2. A mortgage conveying only, an estate for the life of the mortgagee, will not be reformed to convey a fee, as against the rights of a bona fide purchaser of the mortgaged premises for valuable consideration, without evidence- of actual notice on the part of the purchaser, more extensive than the record of the mortgage itself.</p> <p>3. Mortgages of real estate are usually in fee, but constructive notice of the existence, merely, of a mortgage, with no notice as to the estate it is intended to mortgage, will not be notice that the mortgage is in fee, if its terms convey a life estate only.</p>

<p>1. Defendants’ testator sold fifty shares of stock of the Central Railroad Company of New Jersey, and loaned the proceeds thereof, $4981.25, to the complainants, taking their promissory note therefor, payable to his order, twelve months after date, with interest from date. Complainants allege that the note was not intended to be a, part of the contract, but merely a memorandum and evidence of the indebtedness, and that the contract really was that defendants’ testator should .have the dividends on fifty shares of said stock, and should receive fifty shares of capital stock in re-payment of the loan. They seek specific performance of this alleged agreement, and injunction to restrain defendants from parting with or suing upon the note. Relief refused.</p> <p>2. Evidence of a contemporaneous understanding and agreement between the parties, by parol proof merely, in the absence of any allegation orpretence of fraud, accident or mistake, is inadmissible to vary a contract, in writing.</p>

<p>Bill for relief. On final hearing on pleadings and proofs.</p>

<p>Complainant’s intestate planted oysters in Raritan bay upon certain grounds which, he had staked off, and the boundaries of which he had plainly marked. The defendants having taken large numbers of oysters and threatening to continue doing so, under a claim of public right, were enjoined, on the ground that they were acting in concert, taking away for Aheir own use the property of the complainant, and might wholly deprive liim of it, and were, most of them, pecuniarily irresponsible, and besides, a multiplicity of suits would be necessary to relief. The injunction was continued until the hearing, unless, in the meantime, the question between the parties should have been determined at law in favor of the defendants, in which case the defendants had leave to renew the motion to dissolve.</p>

<p>. I. When a creditor comes into equity to reach the equitable interest of his debtor in land, he must show a judgment which would, in case the legal title to the property were in the debtor, be a legal lien thereonj and an execution returned unsatisfied.</p> <p>2. It is not necessary, in such case, to show a levy of an execution on the land which he seeks to reach.</p>

<p>1. Held, in this suit for the recovery of five hundred and fifty-eight shares of stock, pledged as collateral security for credit, that the holders were bona fide purchasers of the stock, without notice, for valuable consideration, to the extent of the indebtedness to them. The stock to be re-assigned only upon payment of their debt and interest, with costs of this suit.</p> <p>2. In this case, the stock was the property of a deceased testator, and the executrix had power, under the will, to make advances to two of the testator’s sons, by whom the pledge was made, on the representation that the stock had been assigned to them under that provision, for advances, and they accordingly presented to the pledgees, the certificates of the stock and a letter of attorney to assign the stock in blank, executed by the executrix and delivered to them, by her to be delivered to the pledgees in pursuance of the agreement for credit; held, that the possession of the certificates and the letter of attorney were, under the circumstances, corroborations of the representations, the inquiry as to the truth of which, the pledgees had no means of pursuing.</p>

<p>Bill for relief. Ok final hearing on pleadings and proofs.</p>

<p>Sheriff’s sale set aside on the ground of surprise, such as to entitle the petitioner (mortgagor) to the aid of equity, upon terms. He was permitted to redeem complainant’s mortgages by paying the amount due thereon, with execution fees, and complainant’s costs of this application, within thirty days from the time of entering the order upon this decision.</p>

<p>1. Equity, in relieving against the loss of a bond payable to bearer,, makes no discrimination against loss by theft.</p> <p>2. A court of equity is not ousted of an.y part of its original jurisdiction! by the fact that a court of law exercises the same or s> similar jurisdiction.</p>

<p>Bill for relief and general demurrer.</p>

<p>The bill in this cause was filed for relief against alleged fraudulent acts-of a board of directors, alleged to be unlawful, and to have existed merely by usurpation. The property of the company requiring to be preserved-pending th§ litigation, and the conduct of the president and his associates-in the direction, having been such that they could not be permitted to-retain control of the affairs of the company, a receiver was appointed.</p>

<p>1. Application to set aside sheriff’s sale because of his alleged refusal to. adjourn it, that the petitioner (a subsequent mortgagee) might have an opportunity to ascertain the amount of the encumbrances, subject to which the property was to be sold, refused, it appearing, by the affidavits submitted in opposition to the application, that such reason for adjournment was not given, and that a written statement of the exact amount due on those encumbrances was exhibited at the sale, and that pains were taker* to give all desired information on the subject; the sale also appearing to. have been conducted fairly, and every effort being made to make the property bring a good price, and the property appearing to have brought such a price.</p> <p>2. Offers to pay more for property than it brought at a public sale, are,, in themselves, no grounds for setting aside the sale.</p>

<p>Bill for specific performance or an account. On final hearing on pleadings and proofs.</p>

<p>Bill to quiet title. On final hearing on pleadings and proofs.</p>

<p>1. Where two purchasers of different parcels of the same tract of land, joined in a bill in equity for relief against a judgment creditor seeking to subject their land to the payment of the judgment, the objection of misjoinder and multifariousness, which was not made until the final hearing, was not entertained.</p> <p>2. A person who, without notice except from the record, purchases land of one who holds it, in fact, by a defeasible title, but whose title, according to the record, is indefeasible, is, as between him and a subsequent purchaser of another part of the property, entitled to the equity which charges lands consisting of different parcels, subject to a general encumbrance, with the payment of the encumbrance, in the inverse order of the alienation of the several parts.</p>

<p>1. In the case of an adopted child, while on the one hand, so long as that, relation continues, the person who stands in loco parentis is not entitled to-pay for support, on the other hand, the person adopted can have no claim for services.</p> <p>2. Where, as in this case, the money of the person taken into the family is applied, with her knowledge and consent, to her own use, after she had obtained her majority, it cannot be recovered from the person standing in loco parentis.</p> <p>3. Settlements between a person standing in loco parentis, and one towards-whom he occupies such relation, of the accounts of the former of expenditures made by him out of the latter’s estate in his hands, made when the latter-was of full age, and competent to make the settlements, can only be impeached by fraud or mistake; and to do this, the impeachment, and the* ground thereof, must be set up in the bill.</p>

<p>Appplication to fix amount of permanent alimony.</p>

<p>1. Where the holder of a mortgage of real estate, on which was a subset quent mortgage, brought suit on his mortgage, in this court, for foreclosure and sale of the mortgaged premises, and they were sold accordingly, but the holder of the subsequent mortgage was not made a party to the suit— held, that the holder of such subsequent mortgage might maintain a suit to foreclose it.</p> <p>2. In such last-mentioned suit the purchaser at the former sale will be entitled to the rights of all the parties foreclosed in the former suit, and will be subrogated thereto accordingly.</p> <p>3. He will not be allowed the costs of the former foreclosure and sale, the proceedings not binding the holder of the subsequent mortgage.</p> <p>4. The fact that the holder of such subsequent encumbrance has waited seventeen years before bringing suit for foreclosure, will not bar him of his claim to relief.</p> <p>5. A judgment creditor, whose claim was secured by a trust mortgage on the premises, the trustee under which was made a defendant to the suit, although the judgment creditor was not, is barred of his claim against the property by the foreclosure and sale.</p> <p>6. Where, after such foreclosure and sale, the first mortgagee, who was the purchaser, has, at the request of the mortgagor, and to release him from liability on his bond, receipted the bond and mortgage and signed an acknowledgment of receipt of the amount of the decree, and authorized cancellation of the mortgage and decree, though the mortgage and decree were not, in fact, canceled of record, he will, nevertheless, in the subsequent foreclosure suit, be entitled to the benefit of the bond and mortgage.</p>

<p>Bill to quiet title. Motion for new trial.</p>

<p>A final decree was made in this case March 28th, 1876, ■directing a sale ofithe mortgaged premises for the payment of a, mortgage made by the defendants to the complainant, bearing date October 28th, 1873, and duly recorded January 7th, 1874. The tax laid on the mortgaged premises for the year 1875 not having been paid, a warrant was issued under the thirty-fourth section of the act concerning taxes, (Nix. Dig. 942,) commanding the collector of the township in which the mortgaged premises are situate, to sell' the standing timber thereon for the payment of the tax. The collector was proceeding to carry out the command of the warrant when the complainant applied to this court, by petition, for an order restraining him from making sale of any part of the timber.</p>

<p>On appeal from decree of Hunterdon Orphans Court, ordering sale of land of John Smith, deceased, to pay his debts.</p>

<p>1. A testator, sixty-seven years of age at the time of the execution of his will, and. somewhat enfeebled by disease, was held, under the evidence in the cause, to have been possessed of testamentary capacity.</p> <p>2. A failure of memory in stating, as a witness in a suit, nine months after the execution of the will, and when enfeebled with illness so severe as to endanger his life, that he had given his wife a part of his personal estate, when he had given her none, held to be no criterion of the condition of testator’s mind at the time he executed the will.</p> <p>3. That testator made no provision for his wife, is no' reason for refusing probate on the ground of unnaturalness, especially when it appears that she had been cruel and unkind to him, and driven him from the house, and had surreptitiously taken papers, notes, and other evidence of indebtedness, and was holding them, and refused to give them up to him at the time of the execution of his will.</p> <p>4. Costs will .not be allowed, unless in an extreme ease, to an unsuccessful party in contesting a will.</p> <p>5. Where testimony in opposition to the probate of a will has been protracted to a most extraordinary and unnecessary extent, and much of it is utterly incompetent, costs, which might otherwise, have been given, will be denied.</p>

<p>1. The effect of the statement in the attestation, that the will was signed in the presence of the testator, is to throw the burden of proving that it was not so signed, upon the opponents of the will.</p> <p>2. Where it is, at most, doubtful on the evidence, whether the will was not signed in testator’s presence, the presumption arising from the statement of the attestation clause is not overcome.</p>

<p>On appeal from Hunterdon Orphans Court.</p>

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

<p>Appeal from decree of Hunterdon Orphans Court.</p>

<p>The argument was had upon the petition of appeal, and answer of the respondent, and depositions taken in pursuance-of the order for that purpose.</p>

<p>The opinion of the Chancellor is reported in 10 C. E. Grenn. 100.</p>

<p>Appeal from an order of the Court of Chancery. The opinion of the Chancellor is reported in 10 C. E. Green 343.</p>

<p>Appeal from decree in accordance with the opinion of the Vice-Chancellor, reported in 10 C. E. Green 418.</p>

<p>1. A scheme was entered into by the widow and the administrator of decedent, to procure a foreclosure sale of the intestate’s lands, at which the administrator was to buy them in at an inadequate price, by giving out at the sale that he was purchasing for the widow, and thus dissuade others from bidding. Under these circumstances, the administrator purchased the lands at the sheriff’s sale, and agreed to convey them to the ■widow for the price at which they were struck off to him. On his refusal, subsequently, to do so, the widow and the intestate’s only child filed a bill to redeem. Held, that the widow, having participated in the fraud, was not entitled to relief, but that as to the child, the administrator would be regarded as a trustee, holding the property for her benefit.</p> <p>2. Actual possession by the cestui que trust is constructive notice to a purchaser that there is some claim, title, or possession of the property adverse to his vendor, and this is sufficient to put him upon his inquiry.</p>

<p>Appeal from a decree made in accordance with the opinion of the Vice-Chancellor, reported in 10 C. E. Green 491.</p>

<p>Appeal from an order of the Court of Chancery in the matter of exceptions by Edward Salisbury and wife to master’s report, re-stating an account of the surviving executor of Roswell L. Colt, deceased; and cross-appeal by the executor. (10 C. E. Green 203.) The appeals was argued by</p>

<p>1. A bequest of the income of personally, without limit as to time, is equivalent to a gift of the principal.</p> <p>2. Where an absolute gift is made in the first instance, followed by a limitation over on the death of the first taker, the absolute gift is not defeated, unless the gift over takes effect.</p> <p>3. Though, by the application of such rule in this case, had the first taker died childless, her husband would have taken the gift absolutely as her administrator, notwithstanding testator’s direction that the fund was not to be subject to the control of her husband, the rule must still govern, where the guard against the husband’s interference was only an incident to the accomplishment of testator’s purpose to preserve the interest of the fund, and to keep the body of the bequest intact to,meet the limitation over.</p> <p>4. Though a will must be construed as an entirety, yet the legal construction of one section cannot be controlled by guesses as to the intent of the testator, arising from the disposition of his property in the remaining sections. -</p>

<p>Appeal from a decree of the Court of Chancery. The opinion of the Chancellor is reported in 10 C. E. Green 194.</p>

<p>1. The power to grant re-arguments should be but sparingly exercised, and perhaps in no ease, unless the court itself intimates a desire for the arguriient to be repeated.</p> <p>2. On a second appeal in the same cause, the points already decided bjthis court are not open to debate, unless by the special order of this court.</p>

■ On petition to the Chancellor by the appellant, to set aside the sale of a farm, made by the sheriff of Monmouth county, March 31st, 1874, under decree of foreclosure of mortgage and sale, in an action wherein Mary J. Bullock, Anthony Bullock, and George Sykes, executors -of William W. Bullock, deceased, were complainants, and' the appellant and others the defendants, and that said sheriff be restrained from executing and delivering a deed therefor to said Anthony Bullock,…

<p>Appeal from a decree of the Court of Chancery. The opinion of the Chancellor is reported in 10 C. E. Green 355.</p>

<p>1. Where probate of a married woman’s will is granted, limited to her separate estate, and a grant of administration eceterorum issues to the husband, both the letters testamentary and of administration are valid and consistent with each other, and there may be a question for a court of construction, whether certain property in controversy is included in the probate or covered by the grant of administration.</p> <p>2. But there cannot be two legal representatives of the same decedent, one claiming under general letters testamentary, the other under general letters of administration, both granted by the same tribunal having full jurisdiction in the premises. Such claims are totally inconsistent and irreconcilable, and cannot both be valid.</p> <p>3. So long as a probate remains unrevoked, the seal of the Ordinary cannot be cohtradicted; neither can evidence be admitted to impeach it in a temporal court.</p> <p>4. If the probate of a will is irregular or voidable for any cause, the remedy is by appeal to the Ordinary, or by proceeding for the revocation, of the letters.</p> <p>5. By a grant of probate, the power of the surrogate is exhausted and his jurisdiction over the subject matter at an end. His decree, until reversed,, is both conclusive and final. A subsequent grant by him of general letters of administration respecting the same property, is absolutely void, and confers no rights upon the administi'ator.</p> <p>6. Consent of counsel cannot confer jurisdiction, neither can it warrant a detíree in a matter dehors the record, especially in the absence of parties who have a right to be heard thereon.</p>

<p>1. Words in a deed granting- water from a pond and the easement of an aqueduct in grantor’s land, construed.</p> <p>2. Such easement, when described in the grant, will be limited to the defined locality. The owner of the dominant tenement cannot change it for convenience or necessity.</p> <p>3. A substantial change in place or manner of enjoyment, will be restrained by inj unction.</p>

<p>Lands were condemned by the Essex road board upon notice to the husband. The award was paid to a third person, to abide the order of the Court of Chancery. The award was partly for the value of the strip taken, and partly for damages to remaining portion of the tract. Held, the wife, by reason of her inchoate dower in the land, has an interest in the award, which equity will secure to her. '</p>

The will of John Herbert, late of the county of Somerset, •contained -the following clause: “ I give and devise to my said executors all that tract of land and premises situated in the county of Genesee and ■State of New York, now in the occupancy of Abraham Post, being the same conveyed to me by the said Abraham? .Post, by deed dated the 6th day of November, 1838, and in said deed particularly described, as by reference to the same,, recorded in the Genesee county-clerk’s…

<p>The case in chancery is reported in 11 C. E. Green 300.</p>

Held, in this case, under tlie circumstances, that a person who, in passing from the depot to the train he was about to take, was obliged… Held: in this case, under tlie circumstances, that a person who, in passing from the depot to the train he was about to take, was obliged to cross an intervening track, was not guilty of contributory negligence, in that he did not, before approaching the train, look up or down the track to see whether there was danger from an approaching…

The facts in this case appear in the opinion of the Vice-Chancellor, who heard the cause below, (11 C. E. Green 322,) and in the opinion delivered at the last term of this court, deciding an appeal from a decree of the Chancellor made in a cause between the same parties.' Ante, p. 526. See, also, opinion of Vice-Chancellor Dodd. 10 C. E. Green, 410.

<p>3. The supplement of March 33th,3866, to tHe act'to-prevent frauds by-incorporated companies,.is remedial in-its nature,.and must be so construedl as to suppress the mischief and advance the remedy..</p> <p>2. That act provides that where the property of an. insolvent corporation, in the hands of a receiver, is encumbered witli mortgages or other-liens, the legality of which is Brought'into question, &c., the Court of Chancery may order the receiver to sell the same clear of encumbrances, &c. Held, that it was not intended by- the words; “ the legality o'fi which- is brought; into question,” to confine the remedy to mischief arising from litigation of •any particular character, but to all litigation between encumbrancers respecting the validity, extent or priority of their liens.</p> <p>3. Although, technically speaking, franchises are property, they are property of a peculiar character, arising only from legislative grant, and are not, in ordinary cases, subject to execution, or to sale and transfer, •even in payment of the debts of the corporation, without the assent or .authority of the legislature.</p> <p>4. Under the said .supplement of March 13th, 1866, taken in connection with the twentieth section of the original act, (Nix. Dig. 409,) the Chancellor has discretionary power to order a sale of the franchises, as well as of the property of the insolvent company, clear of encumbrances.</p> <p>5. A law which, by a revision, is repealed, and at the same time thereby re-enacted, does not, for a moment, lose its binding'force.</p> <p>6. As between trustees for first mortgage bond-holders of an insolvent corporation, whose debt under the mortgage under foreclosure by them is •due, and exceeds the whole value of the property of the corporation, and who apply to have the property delivered to them, and the receiver of said company, who applies for an order for sale of the properly and franchises free from the lien of the encumbrances, the trustees were held to be •entitled to the property, and to be permitted to operate the road, leaving the question as to the mode and manner of sale to be settled at the determination of those proceedings.</p>

<p>Appeal from a decree' of the Court of Chancery, made in accordance with the opinion of the Vice-Chancellor, reported in 11 C. E. Green 485.</p>

This case stood on bill and demurrer. 10 C. E. Green, 427. The complainant was the owner of a lot in the city of Elizabeth, which had been sold to raise an assessment imposed upon it in the laying of a wooden pavement in the roadway in front of it. The city, at this sale, became the purchaser, and the prayer of the bill is that the title of the complainant may be quieted against the lien thus asserted.

<p>1. Lands under water, granted by the state to a corporation under the eighth section of' the riparian act, are not lands belonging to the state within the meaning of the thirty-sixth section of the general railroad act, although, in such grant, a rent, payable to the state, is- reserved, and in. the -iftstrument of grant, power to re-enter 'for non-payment of rent is reserved. Such lands may be condemned, and applied to other public-uses, by proceedings to condemn against the corporation grantee.</p> <p>2. A right to re-enter and re-possess for non-payment of rent, does not create an estate in reversion.</p>

<p>1. A divorce a mensa et thoro, for extreme cruelty, will be granted where there is a gross abuse of marital rights.</p> <p>2. A separation is not decreed as a punishment for past misconduct only, but mainly as a protection against future probable acts of cruelty; this probability being based upon the former conduct, and the character and disposition of the parties.</p> <p>3. Where there is no reasonable apprehension of a continuance of such cruelty, such divorce will not be granted.</p>

<p>Appeal from a decree of the Court of Chancery. The case is reported in 11 C. E. Green 404.</p>

<p>3. The twenty-fourth section of the will of C. S. M. was, in part, as fol-follows: “My will is, and I do direct, that during the minority of my daughter Hattie, the income of the estate which I have hereinbefore bequeathed to her and to her use, shall be paid to her mother, she remaining my widow and unmarried, for the support, maintenance and education of said daughter,” &c. Held, that under this clause alone, upon fulfillment of the trust, no account can be demanded of the widow.</p> <p>2. The ninth section of the will, however, provides “that all provisions made for the benefit of my wife, are to be in lien and satisfaction of her right of dower, and all other interest she may have in my estate, her acceptance of such provision by her to be determined by her relinquishment of dower in three months after my decease.” She did not relinquish her right of dower. Held, that the widow’s right to receive the income under the twenty-fourth section, was substantially a gift to the mother, subject to a charge for the support, maintenance and education of the child, and her right to the surplus is defeated by the ninth section.</p>

<p>On appeal from a decree of the Chancellor. The case is reported in 11 C. E. Green 182.</p>

<p>1. A mortgage executed and acknowledged and put upon record by the mortgagor, in pursuance of a prior contract for a loan on such security, .and afterwards delivered to the mortgagee when the mortgage money is .advanced,, will have priority in equity over liens of mechanics and materialmen for work and. materials furnished after the mortgage is recorded, for the erection of a building on the mortgaged premises, built by the mortgagor, which was commenced between the recording of the mortgage and its delivery; the mortgagee having no knowledge of the commencement of the building when he parted with his money. In equity, the mortgage, when delivered, will have relation to the agreement for the loan.</p> <p>2. A judgment under the mechanics’ lien law, against the owner of the land, is conclusive as respects a subsequent mortgagee.</p> <p>3. Within the meaning of the mechanics’ lien law, a building is commenced when the permanent work upon the ground, whether of excavation or construction, has progressed so far as to inform reasonable observers that it is designed for the erection of a building.</p> <p>4. An instrument in form of a mortgage does not become a mortgage-by the mere fact of its being recorded, if it has not been delivered between the parties. Per Dixon, J.</p> <p>5. Where a mortgagee has, in his pleading, claimed priority for his' mortgage, on the ground that it was delivered to him on a certain day tO' secure a debt then existing, he cannot, at the hearing, entitle himself to-such priority, on the ground that, although the debt was actually created and the mortgage was actually delivered after that date, yet, by reason of Other circumstances, not disclosed in the pleading, his lien should, in equity, relate to the day named. Per Dixon, J., (a minority of the court concurring.)'</p> <p>6. A judgment for the plaintiff upon a mechanics’ lien claim, is not conclusive against a mortgagee of the realty, whose mortgage was created and' recorded after the building commenced and before the claim was filed, and who was not made a defendant in the suit. It is, notwithstanding the-judgment, competent for such a mortgagee to show, in a contest for priority between himself and the lien claimant, that the claim filed is not according to the statute, and hence the debt is not a lien. Per Dixon, J.</p> <p>7. Where an owner of land has commenced the erection of a building,, and then given a mortgage on the premises, which is duly recorded, and then conveyed the property subject to the mortgage, if, afterwards, the-claimant of a mechanics’ lien files his claim,, making only the last purchaser defendant as owner, the mortgagee’s estate is unaffected by the lien. Per Dixon, J.</p>

<p>1. The Attorney-General has the right, where the property of the sovereign or the interests of the public are directly concerned, to institute suit for their protection, by an information at law or in equity, without a relator.</p> <p>2. In a conveyance, by the sovereign, of property which is usually the •subject of private ownership, the extent of the thing granted is to be ascertained by the rules of construction applicable to private deeds.</p> <p>3. The bed'of the Delaware river above tide-water, from the easterly bank ad fil.um medium aquai, passed by the grant from Charles II. to the Duke of York, dated March 12th, 1664, and is private property.</p> <p>4. The general railroad law, approved April 2d, 1873, provides for conferring the franchise of bridging the Delaware, so far as the authority of New Jersey can avail for that purpose.</p> <p>5. When Pennsylvania has authorized one of its railroad corporations to bridge the Delaware so as to connect with any New Jersey road, and New Jersey has authorized one of its railroad companies to bridge the Delaware so as to connect with any Pennsylvania road, the states have exercised concurrent jurisdiction under the treaty of 1783, in such manner as to give mutual consent to the erection of a bridge by the New Jersey and Pennsylvania companies jointly, each from its own bank to the centre of the stream.'</p>

<p>1. A stipulation in a deed of conveyance inter parties, that tlie grantee shall assume and pay a prior mortgage on the premises, is a contract with the grantor simply for his indemnity, and will not be regarded, either at law or in equity, as a contract with the mortgagee or for his benefit.</p> <p>2. The right of the mortgagee to a personal decree for deficiency against a subsequent purchaser, whose deed contains such a stipulation, does not result from any fixed or vested right in the mortgagee, arising either from ■fee acceptance of the conveyance of the. mortgaged premises by the grantee, •or from liis obligation to pay the mortgage debt_a&between himself and his grantor. It rests merely on the doctrine of courts of equity, that a creditor may have the benefit of all collateral obligations for the payment of the debt which a person standing in the situation of surety for others holds for his indemnity, and that he may proceed directly against the person ultimately liable, in order to avoid circuity of action.</p> <p>3. If the liability of the subsequent purchaser to his grantor to indemnify him against the mortgage debt, be extinguished as between themselves, by a re-conveyance before bill for foreclosure filed, the contract of indemnity being thereby put an end to by the act of those who were parties to it, the mortgagee will not be entitled to a decree for a deficiency against sucli purchaser, founded on such a stipulation in his deed.</p> <p>4. C conveyed to H certain mortgaged premises, subject to the payment of the mortgage. The deed contained a stipulation that H should assume and pay the mortgage, the amount thereof having been deducted from the consideration money. H re-conveyed to C, subject to the mortgage, which he assumed to pay. On bill subsequently filed by the mortgagee for a foreclosure, held that by such re-conveyance, the obligation of H to 0 to pay the mortgage debt in exoneration of his liability therefor, was extinguished, and that the mortgagee was not entitled to a decree against H for deficiency.</p>

<p>This case, in the Court of Chancery, is reported ante, p. 110.</p>

Demurrer to bill for divorce. The facts of adultery were thus charged in the bill, viz.: And your orator further showeth unto your Honor, that the said Carrie E. Black, since her said marriage with your orator, and on different days of the months of May, June, July,'August, September, October, and November, in the year 1872, and in the year 1873, and at divers other times, at the township of Mansfield aforesaid, in the county of Burlington and State of New Jersey; at the…