Volume 28 — New Jersey Equity Reports

<p>Where a railroad company, with the consent of the devisee for life and the trustee in possession of the property, having made compensation to them for their interest, had entered upon lands for the construction of their road, and had almost completed it, an injunction sought by certain persons claiming to be remaindermen, but whose claim was disputed, was denied, it appearing that the conduct of the railroad company had been bona fide and with due regard to the interests of all tiae parties.</p>

<p>1. Where there was a decree for an account, and that the defendants pay to the complainant the amount found due on such account, and a reference accordingly, and on the coming in of the master’s report, which was duly confirmed, reporting a sum due from the defendants to the complainant, an order for an execution to make the money was entered. Held, that the decree and order together constituted an adjudication that the amount reported was due from the defendants to the complainant, and that the execution was properly awarded and issued thereon.</p> <p>2. Where a decree is against three defendants equally bound to pay, and an execution is directed against two of them only, they cannot complain because it is issued against them alone, for, if entitled to indemnity, they may have relief against their co-defendant for any amount they may be obliged to pay.</p> <p>3. Where a decree reserves further directions and equity until the coming in of the master’s report, the cause should be set down for hearing on the equity reserved.</p> <p>4. Irregularity in entering the decree, Held, to have been waived by obtaining a stay of execution.</p>

<p>Bill to foreclose. On demurrer.</p>

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

<p>Payment of interest on a mortgage for several years to a person who received it from the mortgagor to pay it to the mortgagee, but who was not in fact the mortgagee’s agent, and had not the possession of the bond and mortgage, does not authorize the payment of th$ principal to him, although he had collected and paid to the mortgagee interest on other mortgages.</p>

<p>Bill for relief. Motion to admit newly discovered evidence after publication.</p>

<p>Suit for divorce from bed and board, and alimony. Petition for temporary alimony and counsel fee.</p>

<p>An application for a capias ad satisfaciendum for the costs of a divorce suit will be denied, where the affidavits show such facts as would entitle the defendant, if in custody, to the benefit of the act “ for the relief of persons imprisoned on civil process.'” (Rev. p. 497, $ 2.)</p>

<p>Bill for specific performance. Motion that complainant pay into' court so much of purchase money as by the contract is payable in cash on the delivei-y of the deed.</p>

<p>1. By virtue of an agreement made subsequent to a mortgage with the grantees of the mortgagors, a railroad company claimed the right to construct approaches to their tunnel,- over lands and railroad track covered by the mortgage, thereby inflicting serious damage, and pro posing to allow no compensation, except the cost of the alteration at the crossing. Held, that such right would not be determined on a petition for an injunction to prevent the injury, filed by the receiver of the mortgagors, as auxiliary to a bill to foreclose, where the respondents were not parties to such bill. They should be made parties in order that the question may be directly litigated.</p> <p>2. The mortgagees Held, under the circumstances, not estopped by acquiescence.</p> <p>3. The injunction restraining the building of the approaches was modified so far as to allow the construction to go on, on condition that the respondents make and pay for all alterations in the petitioners’ track, where rendered necessary thereby, and give bond to pay for all other damage inflicted, including the value of the land occupied, preserving to the petitioners the use and benefit of their drill-yard, &o., the grade of which would be affected by the raising of the track at the crossing.</p>

<p>Bill to foreclose. Petition to remove receivers.</p>

Bill for injunction. Attachment for contempt for breach of injunction. Motion for discharge from custody under the attachment.

<p>Petition for divorce on the ground of alleged impotence. Motion for order that defendant submit herself to inspection.</p>

<p>Deposition taken in another state in behalf of complainant, on notice, suppressed, because the witness, who was the defendant, refused to answer some of the complainant’s questions, though they were proper: introduced impertinent matter in his own favor in his answers to others, among which matter were the contents of papers, the originals, or even copies of which, he refused to produce, declaring that he would reserve them until ho should offer testimony in his own behalf; and refused, after due demand and notice, to produce the partnership books in his possession ; the suit being between partners for an account of partnership transactions, and the production thereof being required for the purposes of the examination.</p>

<p>Bill to foreclose. Master’s report, and exceptions thereto.</p>

<p>Motion to take answer off the files.</p>

<p>Fraud will not be inferred from circumstances which merely indicate unusual generosity.</p>

<p>1. A mortgage deed to trustees for bondholders, from which words of inheritance have been inadvertently omitted, will be reformed as against subsequent encumbrancers and purchasers with notice.</p> <p>2. Whether a fee is intended to pass or not, by a trust deed, may be gathered from its provisions, in the absence of words of inheritance.</p> <p>3. Where the mortgage has been recorded in full, and its provisions require that the trustees should have an estate in fee simple in order to execute them, the record is notice that the mortgage was intended to pass a fee.</p> <p>4. Where a railroad company mortgaged its main line of railroad from the eastern terminus thereof, at the city of Newark, westerly, across the state of New Jersey, to the western terminus of the railroad, at the Pennsylvania state line, and the lands for said main line and the franchises acquired and to be acquired, pertaining to said main line. Held, that it does not embrace lands and franchises acquired by and under a subsequent act of the legislature authorizing an extension of the road from Newark, easterly, to the Hudson river.</p>

<p>Bill for reconveyance of mortgaged premises. On final hearing on pleadings and proofs.</p>

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

<p>1. Where an executrix, who was life-tenant of certain stock of the estate, assigned it as collateral security for the debt of some of the remaindermen, Held, an abuse of the trust.</p> <p>2. The transfer and receipt of the stock, as stock of the estate then standing in the testator’s name, is conclusive proof that the pledgees knew that such stock belonged to the estate, and it was their duty, under the circumstances, to ascertain whether the executrix had the right to transfer the stock as proposed ; and, if such duty was disregarded, they cannot claim protection on the ground of bona jides and ignorance.</p> <p>3. Prall v. Tilt. 12 C. E. Or. 393, distinguished.</p>

<p>1. On. a bill to compel the defendant to account for five bonds, with the mortgages securing the payment thereof, assigned and delivered to the defendant by the complainant, in trust to sell them and pay over the proceeds to the latter. A plea that as to four of the bonds, a court of competent jurisdiction, in a suit in which the present complainant and defendant were co-defendants, found that the assignments of those instruments were for valuable consideration, Held, not good.</p> <p>2. To make a judgment pleaded in bar, a technical bar, it must appear to have been for the same subject matter, and between the same or substantially the same parties.</p> <p>3. The complainant in the present suit not claiming under the complainant of the former suit, and his attitude in the former suit being merely that of resistance to the claim of the complainant, in that action, the judgment in the former suit was held not to have ^een between the same parties, nor substantially so, nor for the same subject matter.</p> <p>4. The allowance of the plea of former judgment is based on the maxim expedit reipublicm ut sit finis litium, and the test question is whether the parties had in the former suit full opportunity to litigate the very subject matter of the present one.</p> <p>5. A plea of former action depending for the same matter, will not be good, unless the former action was of the same nature and effect as the latter."</p> <p>6. The plea as to the fifth bond, was that the complainant had on a certain occasion sworn that it had been assigned by him to the defendant for valuable consideration, Held, bad.</p>

<p>1. A, being lessee of. a mine adjoining mineral lands of B, sank a shaft on the latter lands without authority, and through it mined a large quantity of the ore in those lands. A, having exhausted his own mine, and being about to abandon it, B, who had then for the first time discovered the trespass, requested permission from A and his lessors to go down the'shaft in order to make an inspection, with a view to ascertaining the extent of the injury; which was refused. He then filed his bill for leave to make the inspection, and an injunction requiring A and his lessors to permit the inspection was granted, without notice to any of them. Held, that it was properly granted under the circumstances, but that as a general rule it is best to require notice of application for an injunction in such case, in the meantime enjoining so far as may be necessary to preserve the status quo.</p> <p>2. After ceasing to work his mine in the regular way (it being worked out), A proceeded to reduce, for the sake of the ore that was in them, the pillars supporting the roof, thus endangering the falling in of the roof, which would let into A’s mine the waters of a swamp on the surface of the ground over that mine, from which those waters would run into and flood B’s mine, where A had worked it. On supplemental bill setting up these facts an injunction was granted, and after argument retained till the hearing.</p>

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

Bill to set aside cancellation of, and to establish mortgage and to foreclose. On final hearing on pleadings and proofs.

<p>A switch was built by the Midland Railway Company for the joint convenience and use of a mining company and the. Midland Railway Company, under an agreement which expressly excepted a certain part from the use of the mining company. The assigns of the mining company claim the right to use such excepted part. Held (1), that a mere use by .the permission of the Midland Railroad Company conferred no right. (2.) Nor is such switch “ a public highway,” within the meaning of the charter of the Midland Railway Company. (3.) Nor does the fact that the Midland Railway Company built such switch without legislative authority, give the assigns a right to use it.</p>

<p>1. "When sureties have been induced to sign a bond substituted for a ne exeat bond, which is not only more stringent than,, they supposed, hut also more stringent than the order or rules of the court required, it is the province of this court to say whether there has been a breach of the condition, and whether the bond shall be prosecuted.</p> <p>2. In the case of bonds given in this court in pursuance’of its rules, practice or orders, e. g. a ne exeat bond given to a sheriff, this court has power to determine both the fact and extent of liability under them.</p>

<p>Bill to foreclose. Motion to set aside sheriff’s sale of mortgaged premises, and to vacate order for fieri facias for deficiency.</p>

<p>1. One who seeks to have a deed reformed on the ground of mistake, must be able not only to show that a mistake has been made, but also what it is, .and must establish it to the satisfaction of the court.</p> <p>2. Where deeds were so drawn as to include a part of a street, reformation sought on allegations of a prior verbal agreement that the grantor should be paid for the lands within the lines of the street, refused on the ground, that the proof of such agreement was not satisfactory ; and injunction to restrain a municipal corporation from using such deeds as evidence of dedication, denied.</p> <p>3. If such verbal agreement should be established, it would not affect a subsequent bona fide purchaser for value, without notice.</p>

<p>In partition. Exceptions to master’s report.</p>

<p>Bill for relief. Petition of Benjamin F. Sisson to remove cause into the circuit court of the United States for the district of Yew Jersey.</p>

<p>1. Where the testator, by the charge upon his real estate, only intended to secure the payment of the interest on certain legacies as it should become due, and that of the principal also, if it should become payable, Held, that if the payments of interest had been prompt, and the security had continued unimpaired, there would, if it (the security) appeared to be in no danger of impairment, be no propriety in requiring the amount of the legacies to be raised and invested elsewhere.</p> <p>2. But where part of the interest for three years is unpaid, and one of the devisees of the land charged has also lost possession of part of the farm devised to him, and the rest of the property devised to him has either been conveyed away or is encumbered to such an extent that a sale thereof cannot be avoided, the legatees are entitled to the aid of this court.</p> <p>3. The arrears of interest on the legacies, and the principal thereof ordered to be raised, and the latter, when raised, to be invested under the direction of this court, to the end that the legatees may receive the benefit thereof intended to be secured by the will; and that the subsequent lien-holders upon the premises to be sold to raise such money, may be protected in any rights they may have to the principal, should the legatees die without issue, in which case the principal of the legacies would not be payable.</p> <p>4. Where the legatee released part of the property charged with the legacy, without actual notice of other subsequent encumbrances existing thereon, no equity arises against her from the release in favor of such encumbrances.</p> <p>5. Where three farms and certain woodlands were chargeable with two legacies, and the legatee E. released one farm, Held, that such released farm must bear its due proportion of the legacy to M., and that the remaining two farms and the woodlands must bear the whole of E.’s legacy, and so much of M.’s as was not borne by such released farm, all to be estimated according to their respective values at the testator’s death.</p> <p>6. The general rate of interest having been changed by law, the legatees in this case held to be entitled to receive interest on the legacies, at the rate which they could have obtained had the legacies been raised and invested.</p>

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

<p>1. That a bond and mortgage, made in the name of the husband, were derived from the sale of the separate estate of the wife, does not, of itself, create a trust in her favor.</p> <p>2. Where the administrator of the husband assigned such mortgage to the wife, without any consideration, it was held to have been a fraud upon the estate of the intestate, and that, in equity, no title passed to her, and, consequently, none passed to her assignee, as against the administrator de bonis non of the intestate.</p> <p>3. But it is valid as against the estate of the administrator who executed such assignment, and his estate is first in the order of liability to make compensation for it.</p> <p>4. It is the duty and policy of the court to settle and adjust, in one suit, all claims between the parties in reference to the subject matter of the litigation, if possible.</p> <p>5. A decree may be made determining the rights of co-defendants in a controversy between themselves, in which the complainant has no interest, when the question is properly brought before the court by the pleadings and proof.</p> <p>6. Where a bill prays an answer without oath, such answer, although not evidence for the defendants, is evidence against them.</p>

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

<p>The public right to use a horse-railroad track in the streets of a city for vehicles, incidentally in traveling through the streets, does not authorize a transportation company to use it in competition with the railroad company.</p>

<p>1. A decree of the court of errors and appeals was as follows: S. J. will be entitled to redeem the * * property upon paying the amount at which it was sold at sheriff’s sale, with interest. * * * The case should be remitted to the court below, that an account may be taken under the direction of the chancellor, and 8. J. permitted to redeem on equitable terms. Held, that the court of errors and appeals did not intend to limit the terms, but to leave it to this court to add such other terms as it should deem equitable.</p> <p>2. Where, under an agreement between the widow and administrator, he had purchased the intestate’s property at a foreclosure sale, and the daughter of the intestate was permitted to redeem, the administrator’s grantee, who had purchased with notice, was allowed for necessary repairs.</p> <p>3. Also, where the building was afterwards partly burnt, and such grantee rebuilt it (there was no insurance thereon), he was allowed the cost of rebuilding.</p> <p>4. He was not allowed the balan'ce of a mortgage held on another property, which the administrator had also purchased under the same agreement, the mortgage having been only partly paid by the application of the money for which the property sold on foreclosure of the mortgage.</p> <p>5. The grantee in this case held to account for the rent of the premises from the time when it was bought at sheriff’s sale; but if the widow had the use of the property for the support of herself and daughter, the grantee not to be charged with rent during the time she so had it.</p>

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

<p>On a bill to rescind a contract for tbe sale of land which had been executed, relief refused on the ground that, as to one of the alleged misrepresentations, the proof did not establish it; and as to the other, there was an adequate remedy at law.</p>

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

<p>On motion to file exceptions to a master’s report in foreclosure.</p>

<p>1. A stipulation in a life policy that a failure to pay any of the premiums at the time designated will avoid the policy, renders each payment a condition precedent to the continuance of the policy.</p> <p>2. If the time within which a premium, or any part of it, must be paid, is enlarged by the acceptance of a note upon condition that if the note is not paid at maturity the policy shall be void, payment must be made within the time agreed upon, or the policy will become void.</p> <p>3. If a life policy provides that the holder may, within a designated period after failure to pay a premium, surrender his policy and demand a paid-up policy for part of the sum insured, the right must be' exercised within the time designated, or it will be lost.</p> <p>4. In the absence of an agreement to that effect, part payment of an annual premium will not keep a policy alive for such proportionate part of a year as the sum paid bears to the whole premium.</p> <p>5. A policy-holder in a life insurance company, where the time when a division of profits shall be made is committed to the discretion of the directors, has no right to ask for a discovery, and that a division of profits shall be decreed, except upon an allegation that the discretion committed to them has been abused.</p>

On filing the bill in this case, a restraining order was granted, and also an order to sbow cause why an injunction should not issue pursuant to the prayer of the bill. The motion for the injtmction was heard on bill, answer and affidavits.

<p>1. The joint prosecution of a lawsuit does not create a partnership between the parties, as to the subject matter in dispute. As to the parties themselves, a partnership cannot be formed by implication or operation of law.</p> <p>2. 'That the defendant was a trustee for certain bondholders, cannot aid the complainant, because he is not individually entitled to redress for a wrong done to other persons.</p> <p>3. An estoppel cannot arise from the mere assertion of a right, made by one party to an agreement and instantly denied by the other, even if such assertion is made in writing and the denial is oral.</p> <p>4. When the complainant makes the defendant his witness, by requiring him to answer under oath, so much of the answer as is fairly responsive to the bill is evidence, and must prevail as the truth, unless overcome by the oath of two witnesses, or by one witness corroborated by circumstances..</p> <p>5. A complainant can only recover on the case made by his bill. A defendant is only required to meet such of the complainant’s proofs as tend to establish the case made by the bill. All others he may treat as impertinent.</p>

<p>1. Where a defendant intentionally neglects to make a defence within the time prescribed by law, his application to set aside a final decree in order to let him in to defend, is addressed to the extreme favor of the court, and will not be granted unless it rests in the clearest equity.</p> <p>2. The fifty-seventh section of the orphans’ court act suspends the right of action by creditors for six months, to enable the executor or administrator to examine into the condition of the estate, and to determine on the proper course to take in its settlement. If he permits a suit, commenced before the expiration of the six months, to proceed to final decree, the court is bound to assume, in the absence of proof of accident or inadvertence, that he intended to waive the defence given by the statute.</p> <p>3. A defendant who seeks to set up a defence by grace, and not of right, must show that he has an equitable defence.</p> <p>4. A decree for a deficiency against an executor will not he set aside because no claim for the debt has been exhibited under oath, pursuant to a rule to bar creditors, where there is no proof that such rule has been granted or even applied for.</p>

<p>1. When, by legislative grant, the location and construction of sewers is committed to the judgment of municipal authorities, so long as they keep within their powers and do not abuse them, their acts are not subject to judicial revision.</p> <p>2. If land be dedicated to the public for the purposes of a street, and it is accepted, the public right is complete, and the land may be appropriated to any use to which a street acquired in any other mode can lawfully be put.</p> <p>3. The streets of a city may be lawfully used for' the construction of sewers, whether the public right was acquired by condemnation or dedication.</p>

The petition of Jane Cawley and her husband, filed in this case, asks to have the final decree made therein and the sale of the master thereunder, as well as the subsequent sales made by the grantee of the master, set aside, so far as affects her interest, and that she may be let in to defend. The bill was for a foreclosure, and the decree and sale by the master were both made more than three years before the filing of this petition.

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

<p>1. If, by a contract not under seal, one person makes a promise to another for the benefit of a third, such third person may maintain an action on it, though the consideration did not move from him.</p> <p>2. A promise by a defendant to apply a debtor’s funds, received or to be received, to the payment of a particular debt, is not a promise to answer for the debt of another person.</p> <p>3. Where the drawer of a promissory note provides the second endorser with funds to pay the note, a trust is created in favor of the first endorser, as well as the holder, to have the fund applied in payment of the note.</p> <p>4. A surety or creditor has a right to have any collaterals the debtor may have pledged to either for the payment of their debt, at any point in the transaction, applied to the payment of the debt.</p> <p>5. Where two persons successively endorse a promissory note for the accommodation of the drawer, and the drawer provides the second endorser, at the time of his endorsement, with the means to pay the note, without the knowledge of the first, the drawer and second endorser have a right to subsequently agree that the means shall be appropriated to another purpose; but if the second endorser promises the first that the means provided by the debtor shall be applied to the payment of the note, and thereby lures him into inaction which results to his injury, such promise creates an equity in favor of the first which will support an action.</p>

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

<p>In the matter of the will of Rachel Dyer, deceased, late * of the county of Sussex. On appeal from the decree of the orphans’ court of that county, refusing to admit that wil] to prohate.</p>

<p>1. In the production of evidence, where an executor’s account is referred to a master as auditor, it is the established practice that the exceptant’s testimony be closed before that of the executor ife produced.</p> <p>2. Where the exceptant was not willing to rest his case on the examination of the executor, but immediately proceeded to examine another witness, and, at the end of the examination of such witness, the executor applied in good faith for an adjournment to enable him to produce further testimony, the application should have been granted. If refused, the report should have been referred again to the master, with directions to that effect.</p> <p>3. The proper practice is to state the objections to the executor’s account in the form of distinct and specific allegations, although a party is not absolutely precluded from making other objections of which he neither knew nor had the means of knowing when his exceptions were filed. The adverse party has th'e right to be heard on the new objections, and to produce evidence in his behalf in regard to them. On the hearing of the appeal, the executor applied to this court for leave to take further testimony, which, under the circumstances, was accorded, with leave to the exceptant to produce evidence in rebuttal.</p>

<p>1. The act of 1852, commonly called the “married women’s act,” did not give to a married woman th&jus disponendi of her personal property not settled upon her nor held in trust for her, and, by the act of 1864, her will of such property is not valid as against her husband.</p> <p>2. The latter act is in derogation of the common law, and should be strictly construed.</p> <p>3. History of legislation on the subject.</p>

<p>Where application for administration pendente lite was made to the ordinary, of an estate the personalty of which amounted to more than $1,000,000, and no proper person could be found to give adequate security on taking out such letters, and the estate required immediate attention, the ordinary directed that, on depositing the personalty in this court, there to remain subject to its order, letters would be issued on the giving of a bond in a sum sufficient (in this case $100,000) to cover the property which from time to time would come to the hands of the administrator.</p>

<p>1. Where the next of kin waived their claims to administration, Held, that the orphans’ court might lawfully, in its discretion, appoint a stranger; and it is not error that the court in such case selected as administrator the stranger nominated by one of the next of kin, instead of the one nominated by the other two.</p> <p>2. The right of the next of kin to administration is personal. They have no right of nomination or selection.</p>

<p>1. A sheriff cannot appoint a special deputy, pro hac vice, by parol.</p> <p>2. If a sale of land be made on foreclosure by a bailiff thus informally appointed, and the sheriff, in conformity thereto, executes a deed to the purchaser, such deed will transfer the title, and will be good in a collateral proceeding as the act of an officer de facto, but will be set aside, on a direct application to the chancellor in the course of the same proceeding.</p> <p>8. A sheriff who makes sale of land by a bailiff or special servant duly appointed, can take the oath required by the thirteenth section of the act relative to the sale of lands.</p>

<p>On appeal from a decree of the chancellor, reported in 11 C. E. Gr. 56.</p>

<p>On appeal from a decree of-the chancellor, reported in 11 C. E. Gr. 417.</p>

So far as necessary to an understanding of the points decided, the facts of this case appear in the opinion of Hon. Amzi Dodd, a special master, sitting for the chancellor.

<p>. The Delaware and Raritan Canal Company, in 1833, covenanted with William L. Hoppock and one Wilson to furnish water from the feeder for their mill. Wilson assigned his interest in the mill property to Hoppock, who, in 1873, died. His executors file this bill to recover damages for a breach of the covenant during the lifetime of Hoppock, on the ground that the Delaware and Raritan Canal Company consolidated with the Camden and Amboy Railroad Company; they with the New Jersey Transportation Company, all in the United New Jersey Railroad and Canal Company, which leased its franchises and property to the Pennsylvania Railroad Company; that the first two companies have failed to elect any officers upon whom process can be served to bring them into a court of law, and that they have no property upon which to levy an execution. The bill also prays discovery whether there are such officers, &c.; also, for specific performance of the covenant. Held—</p> <p>(1.) That there was an adequate remedy at law; that the corporations could be brought into a court of law by publication; also, that they were suable through the United New Jersey Railroad and Canal Company, which is not alleged to be without such officers; that allegation of want of x^roperty upon which to levy, will not confer equity jurisdiction over this claim for damages.</p> <p>(2.) That the bill is defective, as one for discovery, in that it fails to allege that an action at law is pending or contemplated.</p> <p>(3.) That the bill is defective, as one for specific performance, because the covenant is made with and for the benefit of the owner of lands touching the same, and, on his death, all interest 'in it passed to the heirs, and not to the executors.'</p>

<p>Where a tenant in common of the equity of redemption has not been made a party to foreclosure proceedings, her subsequent written consent to be made and treated as a party and to execute a release of her interest to the purchaser under the foreclosure, is not equivalent to being actually a party and, as such, included in the decree.</p>

<p>1. A written contract relating to the-matter in controversy, made by a former agent of the appellants, and not produced at the trial because the appellants were ignorant, of its existence, is material, within the rule requiring newly discovered evidence, as a ground of relief, to be material.</p> <p>2. The possession and concealment of such contract at the trial, by the counsel of the respondents, exonerates the appellants from the charge of laches, notwithstanding such former agent was a witness for the respondents, and the fact of the existence of the contract might have been elicited from him on cross-examination.</p>

<p>On appeal from a decree of the chancellor, reported in 12 C. E. Gr. 89.</p>

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

<p>The interruption of the construction of a building on account of the season of the year, though it be for months at a time, will not prevent a mechanic’s lien from attaching from the commencement of the building, if the construction be resúmed without change of design and there is no-evidence of an abandonment of the intention to prosecute the work.</p>

<p>1. Where a bill was filed to recover part of the purchase money of land sold at £t certain pr'ice per city lot, and which, by mistake of the vendor and vendee, was supposed to contain only 31 lots, whereas there were in fact 45, Held, that the vender was not entitled to relief: (1) because she had an adequate remedy at law ; (2) because she had not sought to rescind the contract; (3) because it appeared that she had waited nearly six years before demanding payment, and (4) also, because it did not appear that the mistake was mutual.</p> <p>2. Where a bill was filed by husband and wife in respect to the wife’s separate estate, objections to the joinder of the husband as co-complainant with his wife, made on the final hearing, will not prevail. An amendment would be ordered.</p>

<p>Cross-bill to foreclose. On final bearing on pleadings and proofs.</p>

<p>One to whom money is paid and who receives it believing that it is his due, is not liable for interest upon it before demand made and refusal to pay, nor until he shall have reason to be satisfied that he ought to repay it, and shall know to whom he should pay it.</p>

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

<p>Where land is by one deed convoyed to two or more persons who contribute to the purchase money in unequal amounts, their shares in the property will, in the absence of an agreement to the contrary, he in proportion to their respective contributions.</p>

<p>Medical services rendered to the family of an intestate after his death, upon the promise of the administrator, do not constitute a lien upon the assets of the estate in the hands of an administrator de bonis non.</p>

<p>Bill for relief. On bill and answer.</p>

<p>In an inquisition of lunacy the jury should find whether the party is of unsound mind or not, although they may not find that he is a lunatic in the popular sense of the word.</p>

<p>1. In proceedings in lunacy, where the verdict is against the weight of the evidence, the court will either set aside the verdict and order a new commission, or will take measures to protect the imbecile.</p> <p>2. After consideration of the evidence, and a personal examination of the alleged lunatic in this case, the chancellor set aside the verdict, and ordered a new commission.</p>

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

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

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

<p>1. The unauthorized cancellation of record of a mortgage by the clerk or register, without the knowledge or consent of the mortgagee, will not affect the rights of the latter under the mortgage, even as against a bona fide purchaser of the mortgaged premises with notice of the mortgage, though he has no notice that the cancellation was unauthorized, and presumed, from the certificate of cancellation, that the lien of the mortgage was extinguished.</p> <p>2. A mortgage may be assigned by delivery merely.</p>

<p>1. The sheriff who holds an execution at law, is not a necessary party to a suit in this court to stay proceedings thereunder.</p> <p>2. Where a compromise has been made between a debtor and his creditor, of claims held by the latter against the former as an individual and claims held against him as a member of a partnership, and the consideration has been paid, the court will give effect to and enforce the compromise, if justice requires it.</p> <p>3. The fact that a complainant attempted to set up a merely equitable defence in a suit at law, will not debar him from subsequently, after judgment, setting it up in this court against the judgment.</p>

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

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

Bill to foreclose, and cross-bill praying that complainant in the original bill may be required to redeem. On final hearing on pleadings and proofs.

<p>1. The purchaser of an estate by the curtesy at sheriff’s sale, under execution against a surviving husband, may file a bill to correct a mistake in the description of the premises.</p> <p>2. Where the premises had been conveyed by J. (the tenant by the curtesy) and his wife to B., and reconveyed by B. and his wife to J.’s wife, Held, that B. and his wife were necessary parties to a bill for reforming the deed.</p>

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

<p>Bill for relief. Motion to set aside verdict on feigned issue.</p>

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

<p>Where land was devised to F. W., on condition that he pay certain specified legacies, Held, that the legacies were charged on the land, and that he, having accepted the devise, was bound to pay them.</p>

<p>Bill to foreclose. On general demurrer.</p>

<p>1. Where defendants (a railroad company) were required to provide a bridge, in order to render accessible that part of complainant’s farm which was cut off by their railroad, Held, that the decree should state that the defendants construct and maintain a bridge proper and safe for the purpose intended to be answered. Greater particularity is not required. '</p> <p>2. Although the costs of a feigned issue are said to be discretionary, the general rule of the court in awarding them is that they follow the event, and are given to the successful party.</p> <p>3. Where an injunction restraining defendants from obstructing a lane was dissolved upon their paying into court, as security, the amount of damages, and thereupon defendants obstructed the lane, Held, that they are liable for interest on the amount from the time when the injunction was dissolved.</p> <p>4. The defendants must bear the entire loss of such interest, since the amount deposited draws but four per cent.</p> <p>5. Where the sum deposited was $8,000, and the amount of complainant’s damages, $5,000, Held, that upon the payment of $5,000, with interest and costs, the balance could not be retained for the faithful performance of the other requirements of the decree, viz., building and maintaining a way and bridge.</p>

<p>Where a husband apparently acquiesced in his wife’s return to her father’s house to live, visited her while there, and furnished her money for her support while thus living apart from him, and never demanded that she should return to live with him, Held, that he was not entitled to a divorce for desertion.</p>

Bill to foreclose. On motion to open final decree, &c., and let a defendant in to answer. On petition and affidavits, and answer to petition.

<p>For a consideration graduated by the amount of business done, the E. R. Co. granted to the N. J. M. R. Co. necessary terminal facilities for passengers, baggage, mail and express goods, at the passenger station of the E. R. Co. at N. Y. and J. C., &c., and the right to use its turn-tables, yards, depots, and engine-houses at L. D., and agreed to furnish suitable offices for the local agents and clerks of the N. J. M. Co. at C. street, in N. Y., Held, that the expenses incident to furnishing the facilities stipulated for, were to be borne entirely by the E. R. Co •</p>

<p>1. As to parties holding simply the relation of creditor and debtor, compound interest will not be allowed.</p> <p>2. A money bond, issued by a body politic under authority of law, payable to bearer, has the negotiable quality of ordinary commercial paper, and if, while it is a valid instrument, it reaches the hands of an innocent holder for value before maturity, although he derives his title from a thief, he will be entitled to recover the money due on it.</p> <p>3. The alteration of the number of a bond, where different bonds of the same series are distinguished alone by the numbers, will render the instrument void in the hands of the person who made the alteration, and also in the hands of those who claim under him.</p> <p>4. While the alteration of a stolen bond by a thief will avoid it as to him and those who claim under him, it will not impair the rights of the true owner.</p> <p>5. Spoliation of a written contract by a thief or a stranger, will not destroy the rights of an innocent owner, if it can be clearly shown what it was in its perfect form.</p> <p>6. If a lost instrument is found pending a suit to recover on it as a lost instrument, the suit will not thereby be defeated unless the instrument is restored to the complainant.</p>

<p>1. In a suit for divorce for desertion, unless the master reports the facts and circumstances under which the desertion took place, and the reasons which produced it, if ascertainable, in conformity to the 159th rule, the case will be sent back for further proofs and report.</p> <p>2. A master must perform the duties, under an order of reference, in person — neither his authority nor his duty can be delegated.</p> <p>3. As a general rule, when the defendant is non-resident, and jurisdiction must be acquired by publication, it should be made in the county where the parties resided when the desertion took place.</p> <p>4. A complainant who procures an order of publication, directing an improper or insufficient publication to be made, takes it at his peril.</p>

<p>On petition for writ of assistance, and affidavits.</p>

<p>1. Where a conveyance of lands was made by a grantor upon the same day that a judgment was recovered against him, and there is no allegation in the pleadings, nor any proof in the cause, to show that the recovery of the judgment preceded the conveyance by a fractional part of a day, or vice versa, a master's report that the judgment is entitled to priority, should be sent back for further proofs.</p> <p>2. A second mortgage and judgment will not be merged by a subsequent conveyance of the equity of redemption to the holder of them, neither of them being cancelled of record, and such encumbrancer’s interest clearly requiring them to be kept alive; nor, is the fact that the expressed consideration of the deed is greater than the amount of the grantee’s mortgage and judgment, evidence of any intent to merge; nor, can lienholders intermediate the second mortgage and judgment and - such conveyance, set up such mei’ger after decree pro con., there being no such allegation in the bill to foreclose the first mortgage, nor in the answer of a prior judgment creditor.</p> <p>3. The appearance of a defendant in attachment, under JRev. p. 48, | 38, does not destroy the" prior lien acquired on his lands by the attaching creditors.</p> <p>4. The regularity of attachment proceedings at law, cannot be questioned collaterally in the foreclosure of a mortgage on the premises attached.</p>

<p>On appeal from decree of Mercer orphans’ court.</p>

<p>1. The orphans’ court has no power to relieve, a debtor who has assigned his property under the act “ to secure to creditors an equal and just division of the estates of debtors who convey to assignees for the benefit of creditors,” against the action of the assignee in including in his inventory property of the debtor which does not pass by the assignment. Relief can only be had in this court.</p> <p>2. Under a gift by will of income to a man and his wife for life, each is entitled to one-half of the income.</p>

Motion on the part of respondents to set aside order requiring them to answer petition of appeal, and to dismiss the appeal.

<p>On appeal' from decree of Camden orphans’ court, confirming report of master upon the final account of the guardian of a lunatic.</p>

<p>A bequest to a wife for life with remainder to her children, excluded her husband from all control over it. Held, that he wevs not thereby-deprived of his right, as next of kin, to the share of a child who died intestate after the wife.</p>

<p>On appeal from a decree of the prerogative court, reported in 12 C. E. Gr. 447.</p>

The respondent, Polhemus, and one Hodson were tenants in common of a tract of woodland, of which they made a voluntary partition, by deeds dated August 21st, 1865. These deeds were duly recorded.

<p>The common council of the city of Newark, having the power to construct drains and sewers whenever the public good requires it, and to provide generally for the protection and maintenance of the health of the city, may lawfully, and without compensation to the owners of the fee, use the streets, not only for the purposes of an ordinary sewer, but also for the drainage of any stagnant or running water, whenever the public health, comfort or convenience will be thereby promoted.</p>

<p>On appeal from final decree. The opinion of the chancellor is reported in 11 C. E. Gr. 144.</p>

<p>1. Where a railroad company, having power to acquire lands for its use, has been permitted by the owner to enter into possession and construct its track upon the premises without compensation first made, in subsequent proceedings to condemn, the measure of compensation is the value of the land and damages at the time of the entry, and interest from such entry, irrespective of the improvements afterwards put upon it by the company.</p> <p>2. A railroad company having entered into possession of lands by consent of the owner, under an agreement with him to purchase, on the foreclosure of a prior mortgage of which the company had constructive notice, the company is bound to contribute to the payment of the mortgage to the extent of the value of the part appropriated by it, and damages, at the time of such appropriation, with interest thereon, without regard to the condition of the premises at the time of the foreclosure or the improvements put thereon by the company; and the value of the land and damages may be ascertained by proceedings to condemn, under its charter, instituted after the foreclosure bill is filed, or by a reference to a master.</p>

<p>The opinion of the vice-chancellor is reported in 12 G. PS. Or. 442.</p>

The petition of Jane E. Cawley and Samuel B. Cawley, her husband, of Philadelphia, in the state of Pennsylvania, shows that a final decree for the foreclosure and sale of certain mortgaged premises, including lots of land of the petitioner, Jane F. Cawley, in the cemetery of the New York Bay Cemetery Company, was made in a suit instituted originally by Jacob Yreeland against Benjamin Broomhead; and that another final decree was entered under supplemental bill and bill of…

<p>On appeal from an order of the chancellor.</p>

<p>On appeal from a decree of the chancellor, reported in 12 C. E. Gr. 393.</p>

<p>On original and supplemental bills and cross-information and answers and proofs.</p>

<p>Equity will protect by injunction the owner of a ferry franchise on the Hudson river, against infringement by a rival ferry without a license from this state or the state of New York; such infringement consisting of regular, hourly trips by a ferry-boat, and the solicitation of passengers on their way to complainants’ ferry.</p>

<p>1. On bill to foreclose a first mortgage on lands, the holders of all encumbrances existing at the time of commencing the suit, must be made parties.</p> <p>2. Where it appeared on the final hearing that a mortgagee whose encumbrance was subsequent to that of the complainant was not a party, the suit was stayed to bring him in.</p>

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

<p>The twenty-third section of the mechanics’ lien law (Sev. p. 673), provides that mortgages and other encumbrances created and recorded or registered prior to the commencement of the building, shall have priority over all subsequent builders’ liens upon the lands and upon the erections thereon, except such as may be removable as between landlord and tenant, &c. Held, that this exception only applies to such buildings erected by tenants on leased lands as are by law removable as between landlord and tenant.</p>

<p>Bill to foreclose. On final hearing on bill and answer.</p>

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

<p>On final hearing on bill and plea of Henry A. Kent, Jr., and answer of Carrie E. and Edward H. Valentine.</p>

<p>1. An incorporated savings institution merely for investment of money and payment of income, is a general or public trustee, an incorporated agency for receiving and loaning money on account of those to whom the money belongs.</p> <p>2. It is a mere trustee, and, as such, is subject to the jurisdiction of this court over trusts.</p> <p>3. Equity will interfere if there appears to be occasion for so doing, to prevent the unequal distribution of the assets of such institution, g. to prohibit the payment of any depositors in full so long as it is uncertain whether there will be assets enough to pay the others in full also.</p>

<p>A signature to a bill in the firm name of two counselor’s, who are in partnership, is a compliance with the rule requiring all bills to be signed by counsel.</p>

<p>Bill for relief. On final hearing on pleadings and proof's.'</p>

<p>Bill to foreclose. Motion for receiver.</p>

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

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

<p>Motion for decree dismissing bill.</p>

<p>Suit to foreclose and cross-suit. Petition to admit Frank P. Perkins as a defendant.</p>

<p>' 1. A decree in a divorce suit will have no extraterritorial effect when the defendant is domiciled in another state, and is not served with process, nor with notice of the proceedings.</p> <p>2. A decree for divorce, to be entitled to extraterritorial effect, when the person of the defendant is without the jurisdiction, must be obtained in a manner consistent with natural justice, and such decree is enforced in another state only on the ground of comity.</p> <p>3. Although a notice served on the defendant, when he is without the jurisdiction, cannot add anything to the right of judicial cognizance, nevertheless such circumstance may be a controlling one when the appeal is to the comity of another state.</p> <p>4. When a party sets up that a ceremony of marriage was performed, but that he expressly refused to assent to the ceremony and marriage, no ground is laid to found a jurisdiction on the basis of status, and unless, in such case, process within the jurisdiction is actually served, oravoluntary appearance entered, the judgment will have no extraterritorial effect.</p> <p>5. Also, held, that the judgment in this case was obtained by fraud, and was, consequently, void:</p>

<p>1. The burden of proving the due ■ execution and contents of a lost contract rests on the party claiming under it.</p> <p>■ 2. When a contract shows on its face that it was executed by an agent, in order to bind the person named as principal the authority of the agent to act for the principal must be shown.</p> <p>3. Unilateral or optional contracts are not generally favored in equity.</p>

The opinion of the chancellor in this cause may be found in Booraem v. Wood, 12 C. E. Gr. 372, and the opinion of Depue, J., in the court of appeals, in North Hudson County R. R. Co. v. Booraem, supra p. 450. On motion to settle the terms of the decree.

<p>,On appeal from a decree of the chancellor, reported supra p. 100.</p>

This cause was argued at May Term, 1876, before Hon.. Amzi Dodd, a special master, to whom it had been referred by the chancellor. The facts sufficiently appear in his opinion, and in that delivered on the appeal.

<p>The appeal in this cause was taken from the following opinion of the vice-chancellor, and the decree thereon.</p>

<p>On appeal from final decree of the chancellor.</p>