Volume 29 — New Jersey Equity Reports

<p>1. Leave given to amend an answer to supply an omission arising from oversight of the solicitor who drew the answer, and which was not discovered until the cause was ready for hearing.</p> <p>2. Under the circumstances, it was ordered that the answer stand as if amended, unless the complainant should object on the ground of surprise.</p>

<p>The court will authorize a receiver of a railroad company to make all necessary repairs, and, if necessary, will charge the expense as a first lien on the property prior to existing mortgages thereon.</p>

<p>A city ordinance provided that the solicitor of the city should prosecute and defend all suits, &c., brought by or against the city. Mandatory injunction to restrain the city from..employing, other counsel refused, under the circumstances, on the ground of possible irreparable injury to the city, the suit being ready for trial, and on the ground that the complainant’s right was not clear.</p>

<p>1. In the allowance of permanent alimony to a wife after divorce, the business capability of the husband may be taken into account.</p> <p>2. Where the husband (a non-resident) is the owner of valuable real estate here on which he fails to pay the taxes and interest on the encumbrances, a receiver may be appointed unless he gives satisfactory security for such payments.</p>

<p>A legacy given to a trustee as compensation for her services, to be rendered, although given on condition of her giving security, forms no exception to the general rule that all legacies are payable one year after the testator’s death, and bear interest from that time.</p>

<p>A wife is entitled to alimony pendente lite, on a bill filed by her husband to annul their marriage on the ground of duress, which the wife denies.</p>

<p>1. A trust to sell lands, even on a contingency, confers a fee simple, and, in.order to carry out the intention of the parties, the trust deed may be reformed so as to convey a fee.</p> <p>2. Besides a mortgage on lands, a chattel mortgage, covering the fixtures thereon, was executed at the same time and to secure the same debt, consisting of several bonds.—Held, that one bondholder could not, by obtaining a judgment on his bond and levying on such fixtures, acquire a preference over the other bondholders, even if those fixtures were not part of the realty and the chattel mortgage had not been refiled within the time required. (Rev. p. 709, § 41.)</p> <p>3. As between mortgagor and mortgagee, a chattel mortgage is good, without refiling.</p>

Bill for relief. On bill and affidavits, and answer and affidavits, and order to sbow cause and depositions taken thereunder.

<p>1. A misnomer of a corporation legatee will not defeat a bequest if such legatee can be identified.</p> <p>2. A gift to “ Trinity Church Sunday School in Mount Holly, $1,000 to be safely invested, the interest to be applied to making Christmas presents to the scholars of said school,” is not a legal charity, and is void, also, for uncertainty in not designating the kind of gifts, and because such distribution is indiscriminate as to persons and devoid of all purpose.</p> <p>3. A gift of “the interest óf $1,000 yearly to help form a Young Men’s Christian Association,” etc., is good as a charity, and will be applied not only to assist in the formation of such association, but also in its maintenance.</p> <p>4. A gift to testator’s brother (with a provision for a trustee or trustees in his stead in case of his refusal or death) “ of $10,000 to the end that the interest be applied at discretion to alleviating the wants and sufferings of the deserving poor of Mount Holly,” is a charity which this court will protect and effectuate.</p>

<p>1. “The residue of my estate I give and devise to the North Reformed Church of Newark, in trust, that they may use the same to promote the religious interests of the said church, and to aid the missionary, educational and benevolent enterprises to which the said church is in the habit of contributing,” etc., is a good charitable bequest.</p> <p>2. A misnomer of the legatee will not defeat a gift.</p> <p>3. Third persons cannot object to the capacity of a corporation to take such gift, on the ground that its property already equals the amount limited by the general law under which it is formed. The state alone can interfere.</p> <p>4. If the character of a gift can he definitely determined, and it appears that it is charitable in a legal sense, the use of terms which would, if unexplained, render the gift void, will not defeat the donor’s purpose.</p> <p>5. Norris v. Thomson, 4 0. E. Gr. 608, 5 O. E. Gr. 489, distinguished.</p> <p>Note.—Devises to charities are favored, and ousht to be liberally expounded. Jackson v. Phillips, 14 Allen 539. 550, 556 ; Holmes v. Mead, 52 N. 7. 332, 339 ; Charles v. Hunnicmtt, 5 Call ( Va.) 311 ; Hadley v. Hopkins, 14 Pick. 240, 253 ; Zanesville Co. v. Zanesville. 20 Ohio 483 ; Bicksonv. Montgomery, 1 Swan (Tcnn.) 348. And “determined, like all other questions of construction, by the application of the ordinary rules of interpretation to the language of each particular will.” Chamberlayne v. Brackett, L. P. (8 Ch.) 206, 211, Lord Selborne.</p> <p>Some confusion, in regard to the power of equity over charities, has been caused by a misconstruction of 43 Eliz., ch. 4, (A. D. 1601,) but the later and more satisfactory opinion is that that statute did not confer jurisdiction on the court of chancery. Perry on Trusts, $ 694, note. A few other, principally later, decisions are added. Ould v. Washington Hospital, 1 MacArthur 541, (U. S. Sup. Ot., Oct. 1877,) 6 Gent. L. J. Í91; State v. Griffith, 2 Bel. Gh. 392; S. G. on appeal, lb. 421; Newson v. Starke, 46 Geo. 88 ; Heiss v. Murphey, 40 Wis. 276 ; Frierson v. General Assembly, 7 Heisk. (Tenn.) 683; Meade v. Beale, Taney’s G. G. Beds. 339 ; Board of Convr’s v. Lagrange, 55 Ind. 297.</p> <p>But was merely intended to. classify or enumerate certain charities which were enforceable in equity. Thomson v. Norris, 5 O. E. Gr. 489, 522; Ould v. Washington Hospital, ubi supra.</p> <p>And to provide a new and more effectual remedy for breaches of trusts in that respect. 2 Kent (12th ed.) 283, and note ; Perry on Trusts, l 724, note.</p> <p>That the jurisdiction of equity over charities existed prior to and independently of the 43 Eliz., see Ibid.; 10 Am. Law Peg. 129, 321, 449 ; Wright v. Methodist Church, 1 Hoff. Gh. 202; State v. Griffith, 2 Bel. CL 392, 421; Incorporated, Society v. Richards, 1 Dr. S War. 258 : Vidal v. Girard, 2 How. 127; 4 Wheat. Ap. 1.</p> <p>So, a defective execution of a power, in relation to such trust, will be aided, “ before, at and after the statute of Elizabeth." Att'y-Qen. v. Tancred, 1 Eden 10, 14; Sayer v. Sayer, 7 Hare 377, 3 MacN. & G. 606; Perry on Trusts, § 739 ; see Sherman v. Dodge, 28 Vt. 26 ; Witman v. Lex, 17 S. & R. 92; Roberts on Frauds, 362.</p> <p>In Norris v. Thomson, 4 C. E. Gr. 307, 312, it is stated by Chancellor Zabriskie that the statute of 43 Eliz. is not in force in New Jersey. In the same case on appeal, 5 C. E. Gr. 489, 522, Ohief.Justice Beasley holds that the common law of England means “ that system, so far as respects this question, which has grown up in a series of decisions founded, in part, upon the 43d of Elizabeth, ch. 4.”</p> <p>It is proposed to examine, in this noLe, whether the statute of charitable uses is in force in New Jersey. In determining this, it is necessary to consider some other English statutes, also, that have been deemed adopted in the United States.</p> <p>In Blanhard v. Galdy, 4 Mod. 222 (A. D. 1693), the Island of Jamaica was held to be “only an assembly of people who are not bound by our laws unless particularly mentioned.” But see 8. C. 8allc. 411; Mem. 2 P.Wms. 75.</p> <p>In Smith v. Brown, Salic. 666 (A. D. 1706), “ the laws of England do not extend to Virginia ; being a conquered country, their law is what the king pleases.” Holt, G. J. See Campbell v.Hall, Cowp. 204.</p> <p>The rule that the particular colony to be affected must be mentioned, does not apply to those general statutes which relate to the king’s prerogative. McKineron v. Bliss, 31 Barb. 180.</p> <p>It is doubtful whether the position taken by Blackstone (Vol. I, p. 107), that the colonies were to be deemed conquered or ceded countries, is correct. Story on Const., $ 151, et seq.</p> <p>The following rules seem to have been generally followed in this country:</p> <p>(1.) The statute must have been adopted before the settlement of the colony. State v. Mairs, Coxe 328, note, Kinsey, C. J.; Dalgleisch v. Grundy, Cam. & Nor. (N. C.) 22; McKee v. Straub, 2 Bmn. (Pa.) 1; Patterson v. Winn, 5 Pet. 233, 241, Story, J.; Carter v. Balfour, 19 Ala. 814, 829; Commonwealth v. Lodge, 2 Grait. (Va.) 579; Swift v. Tousey, 5 Ind. 196 ; see Ludlam v. Ludlam, 26 N. Y. 356, 362; Cobum v. Harvey, 18 Wis. 156 ; Paul v. Ball, 31 Tex. 10.</p> <p>(2.) It must be applicable to our situation—«. ¿r., the following acts do not extend:</p> <p>Bankruptcy acts of England. Vanuxem v. Hazelhurst, 1 South. 192, 195 ; see Bunny v. Hart, 11 Moore P. C. C. 189.</p> <p>Collateral warranties, 4 and 5 Ann, c. 16 (A. D. 1706). Hshelmanv. Hoke, 2 Yeates (Pa.) 509; see Den v. Crawford, 3 TIal. 90.</p> <p>Benefit of Clergy. Fuller v. State, 1 Blaclf. (Ind.) 63.</p> <p>Copyright laws, 8 Ann, c. 19 (A. D. 1710). Wheaton, v. Peters, 8 Pet. 591, 660.</p> <p>Quia emptores, 18 Fdw. I, c. 1 (A. D. 1290). Ingersoll v. Sergeant, 1 Whart. 337 ; Wallace v. Harmstad, 44 Pa. St. 492.</p> <p>“The Black -Act,” 9 Geo. I A. D. 1722). State v. Campbell, Chartt. (Geo.) 166.</p> <p>Maintenance and champerty, 32 Hen. VIII, c. 9 (A. D. 1541). Den, Bickham v. Pissant, Coxe 220, 223; Morris v. Vanderen, 1 Dali. 64, 67; Harring v. Harwich, 24 Geo. 59; Sessions v. Reynolds, 7 Sm. & M. (Miss.) 131; Schafernmn v. O'Brien, 28 Md. 565; Cresinger v. Welsh, 15 Ohio 156 ; Fetrow v. Merriwether, 53 III. 275; Cassedy v. Jackson, 45 Miss. 397 ; Duke v.Harper, 3 Cent. L. J. 288, where many oases are reviewed; 14 Am. Law Reg. 78, and note; see Gregerson v. Imlay, 4 Blatch. 503; Brinley v.Whiling, 5 Pick. 347 ; Earle v. Hopwood, 9 <7. B. (B. S.) 566, 574, note.</p> <p>Mortmain, 9 Geo. II, c. 36 (A. D. 1736). Vidal v. Girard, 2 How. 189 ; Beall v. Fox, 4 Geo. 404 ; Potter v. Thornton, 7 R. I. 252 ; Perin v. Carey, 24 How. 465 ; Wright v. Trustees, etc., 1 Hoff. Ch. 202; McCartee v. Asylum., 9 Cow. 437, 451 ; see Schmucker v. Reel, 61 Mo. 592; Leazure v. Hilleaas, 7 Serg. & Rawle, 321.</p> <p>Usury laws, 37 Hen. VIII, c. 9 (A. D. 1546). Houghton v. Page, 2 B. II. 42 ; see Rensselaer Glass Co. v. Reid, 5 Cow. 587, 609, 635.</p> <p>Pauper laws. ■ Commonwealth v. Hunt, 4 Mete. (Mass.) 111.</p> <p>Conspiracy, 33 Edw. I ■(A. D. 1305). State v. Buchanan, 5 II. & J. (Md.) 317 ; Commonwealth v. Hunt, 4 Mete. (Mass.) 111.</p> <p>Bearing arms, 2 Edw. Ill (A. D. 1329). Simpson v. State, 5 Vera. (Tenn.) 356.</p> <p>Enrolment act, 27 Hen. VIII. c. 16 (A. D. 1536). Welsh v. Foster, 12 Mass. 93, 96; Jackson v. Dunsbogh, 1 Johns. Cas. 9Í, 97; see Patterson y.' Winn, 5 Pet. 233, 241.</p> <p>The following have been construed as operative:</p> <p>Lex mercatoria. Ferris v. Saxton, 1 South. 1, 18 ; Pratt v. Fads, 1 Blackf. (Ind.) 81; Cook v. Penick, 19 III. 598 ; Hash v. Harrington, 2 Aik. (Vt.) 9; Hudson v. Mathews, Mor. (la.) 94 ; Commonwealth v. Leach, 1 Mass. 59, 61.</p> <p>Statute of uses, 27 Hen.'VIII (A. D. 1536). 1 Greenl. Cruise 340, note; see Croxall v. Sherrerd, 5 Wall. 268, 282; Society v. Hartford, 2 Paine C. C. 536 ; Matthews v. Ward, 10 G. & J. (Md.) 443, 454; Thompson v. Gibson, 1 Ohio 439.</p> <p>Statute of Gloucester, 6 Eclw. I,.c. 5 (A. D. 1278). Sacked v. Sacked, 8 Pick. 309, 312; see Moore ads. Townsend, 4 Vr. 284; Dawson v. Coffman, 28 Ind. 220.</p> <p>Statute of Merton, 20 Hen. Ill (A. D. 1236). O'FerrallY. Simplot, 4 Iowa 381; Hopper v. Hopper, 1 Zab. 543, 2 Zab. 715.</p> <p>Statute of frauds, 27 Eliz. (A. D. 1585). Cathcart v. Robinson, 5 Pet. 264; Brown v. Burke, 22 Geo. 574 ; Den v. DeHart, 1 Hal. 450, 457 ; May-berry v. Johnson, 3 Gr. (H. J.) 116, 118; Lindsley v. Coats, 1 Ohio 113.</p> <p>. Contra, Clevelands. Williams, 29 Tex. 204 see Murphy s. Hubert, 7 Barr {Pa.) 420; Blackwells. Ovenby, 6 Ired. {N. C.) Eq. 38.</p> <p>Fines and common l’ecoveries. Lyle v. Richards, 9 S. & R. {Pa.) 322; Richmans. Lippincolt, 5 Butch. 44, 50; Oroxall s. Sherrerd, 5 Wall. 268, 283.</p> <p>Distresses, 8 Ann, c. 14 (A. D. 1710). Hamilton s. Reedy, 2 McCord {S. C.) 38; Coburn s. Harvey, 18 Wis. 156; Balgleish s. Grundy, Cam. & Nor. {N. C.) 22; Lambert s. Bessaussure, 4 Rich. {S. C.) Law 248; In re Trim, 2 Hughes (U.. S. C. C.) 355.</p> <p>Damages from accidental fire, 6 Ann, c. 31 (A. D. 1708). Kellogg s. C. & N. W. R. R. Co., 26 Wis. 223, 272; as modified by 14 Geo. Ill, c. 78 (A. D. 1774), Lansing s. Slone, 37 Barb. 15.</p> <p>Discontinuance by husband of wife’s interest in lands, 32 Hen. VIII, c. 28 (A. D. 1541). Bruce s. Wood, 1 Mete. {Mass.) 542; Coale s. Barney, 1 G.&J. {Md.) 324.</p> <p>Westminster the Second, 13 Edw. I, c. 34 (A. D. 1285). Coggswells. Tibbetts, 3 N. H. 41. Contra, Lecompte s. Wash, 9 Mo. 551.</p> <p>Jointure, 27 Hen. VIII, c. 10 (A. D. 1536). Hastings s. Bickinson, 7 Mass. 153.</p> <p>Attornment, 4 Ann, c. 16 (A. D. 1706). Burden v. Thayer, 3 Mete. 76 ; Coker v. Pearsall, 6 Ala. 642; see Baldwin v. Walker, 21 Conn. 168.</p> <p>(3.) In aid or amendment of the common law. Commonwealth v. Leach, 1 Mass. 58, 61; Pearce v. Atwood. 13 Mass. 324, 354; Commonwealth v. Knowlton, 2 Mass. 530, 535; Boynton v. Pees, 9 Pick. 528, 531; Hamilton v. Kneeland, 1 Nev. 40; Gwin v. Hubbard, 3 Black/. (Ind.) 14; see Scott v. Lunt, 7 Pet. 596.</p> <p>As giving an additional remedy, 13 Edw. I, c. 11 (A. D. 1285). She-well v. Fell, 3 Yeates (Pa.) 17 ; Gwin v. Hubbard, 3 Black/. (Ind.) 14; Plumleigh v. Cook, 13 III. 669; see Steere v. Field, 4 Mason 486, 511.</p> <p>As an action of account, 4 Ann, c. 16 (A. D. 1706). Griffith v. Willing, 3 Binn. (Pa.) 317.</p> <p>(4.) Or declaratory thereof. Lynch v. Clark, 1 Sand/. Ch. (N. Y.) 583; Hudnal v. Wilder, 4 McCord (S. C.) 294; Hamilton v. Pussel, 1 Oranch 310, 316 ; State v. Hudson Co., 1 Vr. 130, 131.</p> <p>(5.) Or merely cumulative. Goodwin v. Thompson, 2 Greene (la.) 329 ; Commonwealth v. Puggles, 10 Mass. 391; see Commonwealth v. Enqlish. 2 Bibb (Ky.) 80.</p> <p>(6.) All statutes for the administration of justice were adopted. Sibley v. Williams, 3 Q. & J. (Md.)-52; Pemble v. Clifford, 2 McCord (S. C.) 31; Craft v. Slate Bank, 7 Ind. 219.</p> <p>‘‘■Ease and favor,” 23 Hen. VI, c. 9 (A. D. 1445); Iloons v. Seward, 8 Watts (Pa.) 388; see Winthrop v. Docleendorf, 3 Me. 156, 161.</p> <p>Additions to names of defendants in indictments, 1 lien. V, c. 5 (A. D. 1413). Commonwealth v. France, 2 Brewst. (Pa.) 568.</p> <p>Limitations of actions, 21 Jac. I, o. 16 (A. D. 1624) does not extend here. Den, Bickham v. Pissant, Coxe 220; Den, Johnson v. Morris, 2 Hal. 6, 11; Den, Gardner v. Sharp, 4 Wash. C. C. 609; Morris v. Vanderen, 1 Dali. 64; Boehm v. Engle, 1 Dali. 15.</p> <p>Contra, Calvert v. Eden, 2 II. & McH. (Md.) 290; Bogardus v. Trinity Church, 4 Paige 178, 198.</p> <p>Costs, 6 Edw. I, c. 1 (A. D. 1278). See Aller v. Shurts, 2 Harr. 188. Bills of exceptions, 13 Edw. I, c. 31 (A. D. 1285). See Colley v. Merrill, 6 Me. 50.</p> <p>The construction of an English statute is adopted with it. Brown v. Burke, 22 Geo. 574; Fowler v. Stoneum, 11 Tex. 478.</p> <p>As far as the revolution. Ccdhcart v. Robinson, 5 Pet. 264, 280.</p> <p>Decisions as to charities are independent of 43 Miz., and therefore 'applicable in Pennsylvania. Witman v. Lex, 17 S. & P. 88, 92, Gibson, G. J.</p> <p>No decisions rendered after July 4th, 1776, are admissible as authority in New Jersey. Pat. 436, $ 5 (repealed Pev. Laws 1821, p. 726); Orawford v. The Wm. Penn, 3 Wash. G. G. 484, 492; see Hickman v. Poffman, Hardin {Hy.) 348, 365. ■</p> <p>As to the effect of a general repealer. The constitution of New Jersey of 1776, $ 22, provides that the common law of England, as well as so much of the statute law as has been heretofore practiced in the colony, shall still remain in force till altered by ike legislature, etc.</p> <p>Paterson’s Pev. (A. D. 1799), p. 436, § 4, and Pev. Laws 1821, p. 726, provide that “ no statute or act of parliament of England or Great Britain shall have force or authority within this state or be considered as a law thereof.” (Neither P. L. 1819, p. 25, nor Pev. Laws 1821, p. 726, ji 5, repeals this section.)</p> <p>The reason of this sweeping repealer is, no doubt, correctly stated by Mr. Griffith, that Paterson’s Pev. contained all such of the English statutes as were supposed to be in force in 1776, 4 Grif. Peg. 1155, note.</p> <p>Under this the following English statutes, among others, have been abolished: Fines and recoveries, Oroxatt v. Sherrerd, 5 Wall. 268, 283; the statute de donis (13 Edw. I, A. D. 1285), Den, James v. Dubois, 1 Harr. 285 ; and the statute of 21 Hen. VIII, c. 4 (A. D. 1530), Corlies v. Little, 2 Gr. 373, 385.</p> <p>The statute of uses, 21 Hen. VIII, c. 4 (A. D. 1530,) was abrogated by a similar general repealer in Michigan. Trask v. Green, 9 Mich. 358 ; Ready v. Kearsley, 14 Mich. 215.</p> <p>Also in New York, 11 and 12 Wm. Ill, c. 6 (A. D. 1700), Levy v. McCartee, 6 Pet. 102, 110, Story, J.; but statutes (6 Ann. 31 and 14 Geo. Ill) which had been recognized as part of the common law, were held not to be affected. Lansing v. Stone, 37 Barb. 15, 19.</p> <p>For other constructions of similar provisions, see Noonan v. State, 1 Sm. & Marsh (Miss.) 562; State v. Rollins, 8 N. H. 550; Helfenstine v. Garrard, 7 Ohio 397; Gorham v. Daniels, 23 Vt. 600, 610.</p> <p>A repealer of “ statutes of Great Britain ” does not extend to the statutes of England, and was intended to prescribe the union of England and Scotland [1707] as the period at which the statutes of England should cease to operate here. O'Ferrall v. Sim.plot, 4 Iowa 381 ; see Beg. v. Mallow Union, 12 Ir. O. L. 35.</p> <p>In several of the states the statute of Elizabeth has been repealed by a general repealer of English statutes, or denied recognition as ever having been adopted as a part of the common law.</p> <p>In Maryland, Bashiell v. Alt'y-Gen., 5 Har. & Johns. 392: Meade v. Beale, Taney's G. 0. Beds. 339.</p> <p>In Virginia, Gallego v. Att’y-Gen., 3 Leigh 450; Seaburn v. Seaburn, 15 Gratt. 423; Baptist Ass’n v. Hart, 4 Wheat 1; Wheeler v. Smith, 9 How. 79; see Carpenter v. Miller, 3 W. Va. 174; Boy v. Bowzie, 25 Gratt. 599, 607.</p> <p>In Tennessee, Bickson v. Montgomery, 1 Swan 348; Frierson v. General Assembly, 7 Heisk. 683.</p> <p>In New York, Bascom v. Albertson, 34 N. Y. 584 ; Holmes v. Mead, 52 N. Y. 332; Ayres v. Methodist Church, 3 Sanclf. 351, 367; Bowning v. Marshall, 23 How. Pr. 4.</p> <p>In Wisconsin, Heiss v. Murphey, 40 Wis. 276.</p> <p>In Indiana, Grimes v. Harmon, 35 Ind. 198.</p> <p>In Illinois, see Plumleigh v. Cook, 13 III. 699.</p> <p>In Ohio, Perín v. Carey, 24 How. 465, 497.</p> <p>In Pennsylvania, Bethlehem, v. Perseverance Co., 81 Pa. St. 445.</p> <p>In South Carolina, Ait'y-Gen. v. Jolly, 1 Rich. Eq. 99, 2 Strobh. 379. Contra, Drew v. Wakefield, 54 Me. 291; Going v. Emery, 16 Pick. 107 ; Amer. Acad. v. Harvard Coll., 12 Gray 582.</p> <p>The conclusion is that the 43d Eliz., if ever in operation in New Jersey, was repealed in 1799, since when decisions founded thereon are inapplicable.—Rep.</p>

<p>A widow’s election to take her dower instead of a legacy in lieu thereof, made under a mistake as to her rights, may be revoked, nu/no pro twno, and she placed in statu quo, unless the situation has so changed since her election that it cannot be done without prejudice to the subsequently-acquired rights of others.</p>

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

<p>Two railroads were in the hands of receivers, appointed by this court under insolvency proceedings.—Held, that the court had power, on the application of either receiver, to modify a contract made before their insolvency, so as to equitably re-adjust the rates agreed upon by them for terminal facilities, and, also, for the use of part of one road by the other company.</p>

<p>Where it is sought to establish a trust on the ground of mala fides, the fraud must be proved.</p>

<p>A mortgagee can derive no advantage from a covenant of assumption in a deed if the covenant be invalid between the parties to the deed—e. g., where there was no agreement for assumption, and though the deed contained the covenant, and was delivered, the covenant escaped the notice of the grantee, it being inserted in an unusual place in the deed.</p>

<p>Bill for decree for deficiency on a mortgage. On final hearing on pleadings and proofs.</p>

<p>The by-laws of a board of managers of city water works for the supply of water to the citizens on compensation, must be reasonable, and where, under a regulation to secure water rent, the board refused to supply water to premises on the application of the owner, basing such refusal on the ground that the tenant' of the premises was in arrears for water furnished him while occupying premises owned by another landlord, the board is enjoined from continuing such refusal.</p>

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

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

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

<p>Where a mortgagor represented to the mortgagee that the premises which he proposed to mortgage to the latter would, with the policy of insurance in the H. company on the dwelling-house thereon, be good security for the mortgage debt, and the mortgagee thereupon agreed to accept the mortgage as security, and the mortgage contained a covenant for insurance (though the amount was left blank), and the mortgagor assigned to the mortgagee, as collateral security to the mortgage debt, a policy of insurance (not in the H. company) on a dwelling-house which had been, but was not at the time of making thp mortgage, on the mortgaged premises, and retained the policy in the H. company, which was on the new dwelling-house which had been erected in the place of the one on which the policy assigned had been,—Held, that the mortgagee was entitled to the policy in the H. company as collateral security.</p>

<p>An injunction to restrain the payment of a mortgage assigned by a wife to her husband through the mediation of his brother, such injunction having been obtained on the ground that the wife was non compos mentis at the time of her marriage and continued so until her death, will not be dissolved upon the husband’s answer merely setting up the marriage and assignment, and denying the alleged insanity.</p>

<p>1. A husband has the right to choose the place of residence for his family.</p> <p>2. Repeated refusals by a wife to live with her husband in the place of residence chosen by him. without a justifying cause, constitutes such desertion as entitles him to a divorce.</p>

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

<p>Where usury was set up in the ordinary form appropriate to pleading usury taken in this state, and it appeared that the agreement was not made in this state, and it also appeared that a premium had been taken for the loan of the money and a further premium for further forbearance,—Held, that unless the complainant would deduct the - premiums and all interest received thereon, the defendant should have leave to amend his answer so as to set up the taking of the premiums.</p>

<p>No equity arises in favor of a subsequent encumbrancer against a prior mortgagee from a release of the mortgage of the latter, which, though purporting to be executed by him by attorney-in-fact, (the person who signed it having sometimes acted as his attorney-at-law,) was not executed by his authority, or with his knowledge or consent, and of the existence of which he had no knowledge.</p>

<p>It is the duty of the managers of a savings bank, who have applied to this coui’t to protect the interests of the depositors, to convert t.he assets into cash as rapidly as possible, without sacrifice, and to distribute the proceeds among the depositors without unnecessary delay.</p>

<p>The waste or misapplication of the funds of a corporation by its officers or agents, authorizes the company to resort to equity in order to compel such officers to account for such waste or breach of trust, even though it were conceded that an adequate remedy at law exists. The existence of such remedy at law would not oust this court of its jurisdiction.</p>

<p>1. A legacy charged on lands, and given to trustees to hold until the legatee should attain her majority, retains preference over a mortgage given on a part of said land, which was released, without consideration, by the guardian of the legatee, with the advice of the attorney of' the mortgagee.</p> <p>2. That the guardian gave bond, and charged himself with the amount of such legacy, when he executed the release, does not impair the lien.</p> <p>3. In marshalling the assets of the estate, debts due from the testatrix must have priority over such legacy.</p>

<p>B. gave a mortgage to secure a note of $5,200. He afterwards gave to the mortgagees another note for $5,500, with the privilege of two renewals upon making part payments at each renewal. B. did not request any renewal of the note. After its maturity he paid $1,500 without any directions as to its appropriation, and the mortgagees applied it to the note of $5,200.—Held, on foreclosure of the mortgage, that as against a purchaser of the mortgaged premises under a judgment -against B., he could not question such appropriation.</p>

<p>Bill to foreclose. On final hearing on pleadings, and written agreement as to facts.</p>

<p>A bill was entertained to set aside a sale of land by an auditor in attachment, where such attachment was issued by administrators who had no authority to sue, being merely foreign administrators, for a particular claim of rent, alleged to be due under a lease, but not due, in fact, and against, among others, the widow of the alleged debtor, as an heir at law; no negligence in regard to the sale being attributable to the defendants in attachment, one of whom was an infant.</p>

<p>A claim for the value of use and occupation by a purchaser of the demised premises, under attachment proceedings against the landlord, as opposed to that of the landlord himself, for rent under a lease for the same period, does not- present a case for a bill of interpleader by the tenant.</p>

<p>Bill to foreclose. On exception to master’s report.</p>

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

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

<p>A mortgage was given to secure two promissory notes. A part of one of the notes was paid, and the remainder consolidated with the amount due on the other, and a new note given therefor. To enable the mortgagor to make payment on account of the notes, and to that end to use money which he needed to buy goods for his store, the mortgagee sold him the goods bn credit, and took his note therefor.—Held, that the mortgagee could not, as against a mortgagee or a judgment creditor, include and recover the last not.e on foreclosure.</p>

<p>1. In a suit in this court to quiet title and restrain an action of ejectment, a deposition of a witness in that action who has since died is competent, the action .at law having been substantially between the same parties and for the same land.</p> <p>2. A person who, having discovered a flaw in a title to land, purchases the title for speculation, with a view to ousting the possessors, who claim to be the real owners, is not a bona foie purchaser.</p> <p>3. Possession by a man or his tenant is notice of the title, equitable as well as legal, under which he claims the property.</p>

<p>1. Where the last day for filing an answer falls on a, legal holiday— e. g„ Christmas—filing it on the next day on which the clerk’s office is open will be sufficient.</p> <p>2. Where a foreign notary public affixed his official seal, and signed his name (but without adding his official designation, though it was contained in the jurat) to the jurat of the affidavit taken out of this state, to an answer m chancery,—Held to be sufficient as a compliance with the 164th rule, and motion to take the answer from the files, for that cause, was refused, although the statute (Rev. p. 488, | 5) requires that his official designation be annexed to his signature, “ where an oath to be used in any suit or legal proceeding in this state is taken out of this state * * * before a notary public, &e.”</p>

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

<p>An injunction granted upon an allegation of the fraudulent concealment of a written agreement between the defendant and another defendant, in an action at law, will not be dissolved upon the answer of one defendant and the affidavit of the other, without the answer of both and the production of such agreement.</p>

<p>1. A deed made by a person while in a state of intoxication will be set aside if advantage has been taken of his situation, or his drunkenness was produced by the act or connivance of the person-to be benefited by the deed.</p> <p>2. Courts cannot protect the rash against the consequences of imprudent contracts, if they enter into them voluntarily, and not through fraud or artifice.</p>

<p>On motion to stay the taking of an account pending an appeal from an interlocutory decree.</p>

<p>On filing tbe bill an order was granted enjoining tbe defendants from appropriating any public money to pay for tbe bridge in controversy, and requiring tbem to show cause why an injunction should not issue pursuant to the prayer of the bill. This order was heard on bill and answer.</p>

<p>On bill, amended bill, answers, and proofs.</p>

<p>1. Contracts of subscription to the stock of a corporation, if procured by fraud, will be set aside.</p> <p>2. The rule is universal, whatever fraud creates justice will destroy.</p> <p>3. An oral contract of subscription will not be enforced under a charter requiring that such contracts shall be made in writing.</p> <p>4. All who get gain by fraud must bear the legal consequences of their wrongful acts.</p> <p>5. Where a fraud is committed in the name of a corporation, by persons having the right to speak for it, for their personal benefit, they will be made to answer personally for the injury inflicted by their fraud.</p> <p>Note.—The general rule is well settled that a false and fraudulent representation, made by the agent of a corporation to a party at the time of his subscription to its stock, is a good defence in an action thereon. Ang. & Arms on Gorp., $ 531, note (a) ; Gaszeaux v. Mali, 25 Barb. (N. Y.) 578 ; Gross v. Sackett, 2 Bosw. {N. F.) 617 ; State v. Jefferson Turnpike Co., 3 Humph. (Tenn.) 305 ; Davidson v. Tullock, 3 Maca. H. L. Cos. 783, 6 Jur. [N. S.) 543 '; Crump v. U. S. Mining Co., 7 Graft. ( Va.) 352; Waldo v. Chicago, So. li. B. Co., 14 Wis. 575 ; New Sombrero Co. v. Erlanger, L. B. (5 Ch. Div.) 73 ; Eaglesfield v. Marquis of Londonderry, L. B. (4 Ch. Div.) 693. See especially Upton v. Enqlehart, 3 Dill. C. C. 496, 506.</p> <p>But such misrepresentation must be of a material fact, and shown by the defendant to have induced him to subscribe. Vicksburg B. B. v. McKean, 12 La. An. 638.</p> <p>An unperformed promise to obtain subscriptions for the subscriber in another company, is no defence. Orossman v. Penrose Co., 26 Pa. St. 69.</p> <p>Nor a mistaken estimate as to the value of a contemplated improvement. Ibid.</p> <p>Nor the holding out of flattering prospects by the agent. Hughes v. Antietam Co., 34 Md. 317.</p> <p>Nor that the company failed to acquire all of the land specified in its prospectus. Kelsey v. Northern Light Co., 54 Barb. (N. Y.) 111.</p> <p>N or false and exaggerated statements as to the value of a donation' of land made by congress to the company. Walker v. Mobile JR. JR. Co., 34 Miss. 245.</p> <p>Nor that the persons undertaking to construct a railroad were able to complete it out of their own resources without any advances from the company. Andrews v. Ohio, &c. JR. JR. Co., 14 Ind. 169.</p> <p>Nor that another corporation would do a certain act beneficial to the company. Johnson v. Orawfórdsville Co., 11 Ind. 280.</p> <p>Nor as to the amount actually subscribed and paid in. Mabey v. Adams, 3 Bosw. (N. Y.) 346.</p> <p>Nor that the stock is non-assessable beyond a certain percentage of its value. Upton v. Tribilcok, 1 Otto (U. 8.) 45.</p> <p>Nor as to the time within which the railroad would be completed. Goodrich v. 31 III. 490.</p> <p>Nor that the agent will release the subscription. Costar v. Titusville Co., 63 Pa. 8t. 381 ; 8affold v. Barnes, 39 Miss. 399.</p> <p>The representation must be shown, if made at a public meeting, to have been authorized. Buffalo JR. JR. Go. v. Dudley, 14 N. Y. 336.</p> <p>A party cannot discharge his liability if he himself was a party to the fraud. Southern JR. JR. Co. v. Hixon, 5 Ind. 165 ; Cusiar v. Titusville Co., 63 Pa. St. 381; IAtchjield Bank v. Church, 29 Conn. 137. .</p> <p>Notice of the discovery of the fraud, and of the party’s rescission, must .be given within a reasonable time, or it will operate as a waiver. Cunningham, v. Edgefield Co., 2 Head. (Term.) 23; Upton v. Englehart, 3 Dill. C. C. 496, 506 ; Farrar v. Walker, 13 Nat. B’k Reg. 82.</p> <p>So, payment for the stock constitutes a waiver. Ossipce Co. v. Canney, 54 N. H. 295.</p> <p>Such misrepresentations are no defence to an action for an unpaid installment brought by an insolvent assignee of the company. Michener v. Payson, 13 Nat. B’k Reg. 49 Sanger v. Upton, 1 Otto [U.S.) 56.</p> <p>Or a receiver. v. 13 Hun 164.</p> <p>Or by a creditor. Saffold v. Barnes, 39 Miss. 399.</p> <p>As to the mode of setting up such fraud, see Goodrich v. Reynolds, 31 Ml. 490 ; Mahey v. Adams, 3 Bosw. (N. Y.) 346.—Rep.</p>

<p>On petition of purchaser to be relieved from Ms bid at a sale made under a decree for sale of mortgaged premises.'</p>

<p>On motion to discontinue injunction pending an appeal from dismissal of bill. •</p>

<p>1. The act to quiet titles (P. L. 1870, p. 20) prescribes three things in respect to a suitor under it: his qualifications, when he may sue, and what his bill must contain.</p> <p>2. In a bill filed under that act the complainant is not required to set out the adverse right and show how or why it is invalid; it is sufficient to allege that it is claimed or reputed that there is an outstanding hostile right.</p> <p>3. Under that act a person in the peaceable possession of lands, as ownqr, has a right to have anything which casts a suspicion upon his title brought under judicial investigation. •</p>

<p>On motion for injunction, heard on bill, answer and affidavits.</p>

<p>1. An assignee of a mortgage takes it subject to all defences existing against the mortgagee in favor of the mortgagor, but free from latent equities existing in favor of third persons.</p> <p>2. A mortgage executed as a step in a scheme to defraud creditors, will be upheld, even against creditors, in the hands of a bona fide assignee for value; but, in order to be considered an assignee for value, he must pay money, surrender a valuable right, or assume an irrevocable obligation; the surrender of a pre-existing debt is not a sufficient consideration.</p> <p>3. Property conveyed in fraud of creditors will be reclaimed for the benefit of creditors, no matter who may happen to hold it, if reclamation can be effected without injustice to innocent third persons.</p> <p>4. He who buys any part of the avails of a scheme to defraud creditqrs, in order to keep what he gets, must not only pay for it, but he must be innocent of any purpose to further the fraud.</p> <p>5. A person who willfully closes his eyes to avoid seeing what he believes he would see if he kept them open, must be considered to have seen what any man with his eyes open -would have seen.</p>

<p>1. An officer of a corporation, under whose management it has become insolvent, is not a proper person to be appointed its receiver.</p> <p>2. The power which creates a receiver may, at any time, put an end to his functions, but it ought not to do so except for cause.</p> <p>3. Where an officer of a corporation has been appointed its receiver, and it appears proper that his conduct, as such officer, should be investigated, to ascertain whether he has not obtained an advantage which he ought not to be permitted to retain sufficient cause for removal exists.</p>

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

<p>1. An equitable mortgage may arise from non-payment of purchase money, a deposit of title-deeds, or an unsuccessful attempt to make a valid mortgage deed.</p> <p>2. A person who acquires a legal title, with notice that the equitable title is in some other person than his grantor, will be decreed to hold the legal title for the benefit of the equitable owner.</p> <p>3. A deed or mortgage may be reformed against a subsequent purchaser or mortgagee who acquires his rights with notice of the equities of the person seeking reformation.</p> <p>4. Constructive notice, flowing exclusively from matters of record, can never be construed to be more extensive than the facts stated on the record.</p>

<p>1. A contract simply giving a right to take ore from a mine, no nterest or estate being granted, merely confers a license..</p> <p>2. Under such licenses the licensee acquires no right to the ore until he separates it from the freehold.</p> <p>3. If a mining license is coupled with an interest growing out of expenditures made by the licensee pursuant to its requirements, it is not revocable at the pleasure of the licensor.</p> <p>4. When a license merely gives the licensee a right to dig and take ore, it is not exclusive of the licensor, but he may take ore from the same mine, at the same time, and grant permission to others to do so.</p> <p>5. But an exclusive right may be conferred by license, and where it clearly appears, even by implication, that it was the mutual design of the parties to make it exclusive, it will be held to be exclusive.</p> <p>6. A licensee who constructs a tunnel for mining purposes, under the authority of his license, with his own funds, for which he is to be reimbursed out of the licensor’s share of the profits of ore mined for the joint benefit of the licensee and licensor, will be held to have an exclusive right to the use of the tunnel, so far as such use is necessary to enable him to get the ore he has a right to take, provided he uses reasonable'diligence in taking it.</p>

<p>1. For error apparent on the face of a decree, a bill of review maybe filed without leave, but when a decree is sought to be impeached by proof of newly-discovered facts, a bill cannot 'be filed except by special permission of the court.</p> <p>2. As a general rule, a supplemental bill cannot be filed without leave.</p> <p>3. A supplemental bill may be added to a bill of review.</p> <p>4. If a bill of review is filed without leave, or is inconsistent with the leave granted, it will be ordered to be taken from the files.</p> <p>5. A suitor who acts by leave of the court, can only do the things covered by his license,, and anything he does beyond will be considered unauthorized.</p>

<p>On order to show cause, requiring the defendants to show cause why an injunction should not issue, heard on bill and affidavits and answers.</p>

<p>1. The preference given by the sixty-third section of the corporation act is in derogation of the right of creditors to be paid equally, and must not be extended by construction.</p> <p>2. The right conferred by this section is personal, inhering alone in the person who actually performs labor or service.</p> <p>3. A person who furnishes the labor or services of others, under a contract to do the whole business of a corporation, or a particular branch of it, is not an employe, but a contractor.</p>

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

<p>1. New Jersey does not possess the crown’s common law prerogative to have its debts paid in preference to the debts of other creditors.</p> <p>2. On the appointment of a receiver of an insolvent corporation, its title to its property is divested by force of law.</p>

<p>A wife is not guilty of desertion who leaves her home because of the threatening language and conduct of her husband, and thereupon he, instead of asking her to return, notifies the public, by advertisement, not to give her credit.</p>

<p>On motion that a witness be required to answer certain questions and produce certain papers, documents and books.</p>

<p>Where a party claims to be aggrieved by any proceeding at the trial of an issue at the circuit, certified from the orphans court under Sev. p. 756 $ 19, his remedy is by motion for a new trial or bill of exceptions. The orphans court cannot retry the same issue after the return of the verdict.</p>

<p>On appeal from the decree of the orphans court of the county of Somerset, allowing the final - account of Farrington Barcalow, executor of William Barcalow, deceased.</p>

<p>1. Where some of the devisees of an estate approved of, and others acquiesced in, an exchange of the property made by the executor,— Held, that they were, under the circumstances, estopped from after-wards questioning the propriety .of the exchange.</p> <p>2. The recovery of a judgment against an executor by a broker, for alleged services which the executor denies, under oath, were ever rendered, does not warrant an allowance for its payment out of the estate.</p>

This cause was argued at November term, 1877. No written opinion was delivered by the vice-chancellor, who adopted the opinion in Higgins v. Gillesheiner, 11 G. H. Gr. 308, as the opinion of the court, and governing this case. The complainant, who was the appellant in this court, filed his bill in chancery, in his capacity as receiver, appointed under the act entitled “ an act respecting executions,” approved March 28th, 1874 (Reo. p. 393).

<p>In a suit for divorce for adultery, neither husband nor wife is a competent witness to disprove the charge.</p>

<p>1. A preliminary injunction is never granted unless the act threatened to he done will inflict an irreparable injury on the complainant.</p> <p>2. Nor will the writ be issued where the right of the complainant depends on an unsettled question of law.</p> <p>3. Also, it is the general rule that when the equity of the complainant is disproved by the answer and affidavits, a preliminary injunction is not proper.</p>

<p>On appeal from a decree of the ordinary, reported in JEmbley v. Hunt, supra p. 281. See, also, 8. G., 1 Stew. 421.</p>

<p>On appeal from a decree of the chancellor. His opinion, founded on an order of Chancellor Zabriskie, is reported in Case v. Arnett, 11 C. JE. Gr. 459.</p>

<p>On appeal from a decree of the chancellor. His opinion may be found in Williamson v. N. J. Southern B. B. Co., 1 V Step. 278.</p>

<p>On appeal from an opinion of the chancellor, reported in Sanborn v. Adair, 12 C. E. Gr. 425.</p>

This cause was argued at May Term, 1876, before lion. Amzi Dodd, as special master. The appeal was taken from his opinion. On cross-appeal's from the decree of the chancellor, dated August 22d, 1876, and appeal from the order of the chancellor, denying relief on petition, dated August 29th, 1876.

<p>C., W. and B. were partners in the iron business, and, in payment for railroad iron, took bonds of the R. & W. R. R. Co. The firm dissolved,-and these bonds were divided between the partners. Litigation ensued relative to these bonds, and C. and W. were advised by their counsel to purchase an additional number of the same class of bonds, so as to control the market. C. purchased twenty-two bonds with his own money. Afterwards an arrangement was made by all the holders of these bonds to place them in the hands of a single person for sale, and a paper was drawn by which C. was made trustee for such purpose. In signing such paper, W. put his name under that of C., opposite these twenty-two bonds, indicating a part ownership therein. In signing this*paper, as also in a subsequent paper, C. placed the bonds received by him at the dissolution of the firm, separate from these twenty-two bonds. C. sold all the bonds, and failed to account to W. for the one-half of the profits on the twenty-two bonds. Held, that he must account for such profits, with interest.</p>

<p>Upon the application of the owner of a brook, used by him for nine years for the purposes of a bleaehery, adjacent owners higher up the stream were enjoined from abstracting water therefrom, for the public purpose of supplying a village, and substituting water of an inferior quality taken from a canal,—Held,</p> <p>(1) That the inferior importance and limited use by the complainant would not justify such appropriation by the defendants.</p> <p>(2) That the actual mode and extent of complainant’s use was not known to defendants, cannot divest or impair his right to have the stream run in its natural condition and course.</p> <p>(3) That the silence of complainant during the erection of the water-works constitutes no equitable estoppel, because he had a right to presume that defendants’ use of the stream would not exceed its legitimate use.</p> <p>(4) That the erection of a dam by defendants is not shown to diminish the flow of water or to corrupt its quality, by reason of the water standing in the pond, to an extent sufficient to justify its removal.</p>

Motion by Mr. Shipman, on behalf of the respondent to dismiss an appeal because only one of two executors had brought such appeal. The petition showed that the other executor declined to join in the appeal.

<p>1. A mortgagor of a mortgage made payable in one year, is not entitled to any benefit from a subsequent agreement made between the mortgagee and- his assignee, extending the time of payment on condition of the mortgagee’s guaranty and the prompt payment of the interest.</p> <p>2. Where a mortgagee guarantees an overdue mortgage, his assignee must foreclose after notice to proceed at the mortgagee’s expense.</p>

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

<p>Bill to foreclose. Petition to set aside sheriff’s sale.</p>

<p>Hill for relief. Motion to dissolve injunction, on bill and answer and affidavits on both sides.</p>

<p>Motion for writ of assistance.</p>

<p>1. Building loan associations have power to loan money on the same security as individuals, notwithstanding their usual mode is to require • the borrower to assign their own stock as collateral to his mortgage.</p> <p>2. Where several loan associations made concurrent loans on the same building,—Held, that no implied obligation on all of them to require such assignment,.arises from the fact that some of them did so ; and that the equality of .such as did not was not thereby affected.</p> <p>3. If such stock has been assigned, it must be sold first, and the amount applied on the mortgage.</p> <p>4. Fines for delinquency (secured by the mortgage) in paying monthly installments on such stock, after assignment as collateral security for the mortgage-money, do not cease on filing a bill to foreclose the mortgage to which the stock is collateral.</p>

<p>A conveyance of the fee to a mortgagee will not merge his mortgage, where such intention on his part does not exist, and no detriment to other encumbrancers is shown.</p>

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

<p>A, in contemplation of marriage, conveyed lands to B, in trust for the sole and separate benefit of his intended wife, and upon the further trust to' convey to such persons as she, during her life, might appoint, either by deed or will, and, upon failure thereof, to her heirs at law forever. A, together with one child of the marriage, survived his wife, who died without appointment.—Held, that the estate of the wife was an equitable fee-simple, in which A was entitled to curtesy.</p> <p>Note.—A father, “for the purpose of promoting the interest of E. [wife of his son], separate and apart from that of her husband,” by deed conveyed lands to a trustee “for the said E., her heirs and •assigns forever, and for her and their sole and separate use and benefit,” with a power of sale by the trustee (the wife and her heirs consenting and joining in the deed), the proceeds to be paid to her for her sole and separate use, and to be disposed of as she might think proper, by will, deed or otherwise.” The power was never exercised, and E. having died, leaving issue,— Held, that her husband was entitled to curtesy in her estate. Ege v. Medlar, 82 Pa. St. 86.</p> <p>By a marriage settlement the property of the wife W'as conveyed to trustees for the benefit of the wife during coverture, free from the control and not liable for the debts of the husband, with power in the wife to dispose of the same, either by will or deed. The wife died, with issue surviving, and without disposing of the property.—Held, that the husband was entitled to curtesy in the real estate. Jones v. Brown, 1 Md.. Oh. 191. See Booker v. Booker, 32 Ala. 473.</p> <p>By a decree of the court of chancery a wife held an equitable estate in lands in the hands of a trustee to receive the rents and profits, and to pay the same to her and her heirs, with a power vested in her to declare, by deed or will, the uses, and trusts for which said trustee should hold said lands. Oh her death, without executing the power, leaving ehildrén,—Held, that her surviving husband was entitled to an estate by the curtesy. Baker y.Heiskell, ] Cold. [Term.) 641.</p> <p>Under a marriage settlement by a husband, “ to hold the same for the sole and separate use, behoof and benefit of her [the wife], her heirs and assigns forever, free from the debts, contracts or control of her husband,” with no provision in the settlement for the disposition of the estate in case of the wife’s death,-—-Held, that the husband surviving was entitled to curtesy. Frazer v. Hightower, 1 Term. Be§. Hep. 190.</p> <p>A wife granted her separate property to S., in trust-, for seventy-five years, to pay the rents, etc. unto such persons as she should appoint, and in default of such appointment, then to herself, for her sole and separate use; and, further,-that S. should transfer to such persons as she, by will, should appoint, and in default thereof, then to her heirs. She died without testamentary appointment, leaving a husband and children.—Held, that her husband took an estate by the curtesy. Lowry v. Steele, 4 Ohio 170; see, also, Alexander v. Warrance, 17 Mo. 228.</p> <p>Under a devise of land for the separate use of a feme covert, 1o be disposed of as she might think proper, the trust to determine with the husband’s death; and the wife dying first, leaving issue,—Held, that the husband was tenant by the curtesy. Payne v. Payne, 11 B. Mon. (Hy.) 138 ; see, also, Smith v. Maxwell, 1 Hill (S. O.) Ch. 101; Watkins v. Watkins, Vern. & S. 61.</p> <p>* In a settlement of personal property, with power of appointment, by will, in the wife, but no provision for the survivorship of the husband, the wife having died without making any appointment,—Held, that her husband, as administrator, was entitled to the whole. Pickett v. Chilton, 5 Munf. (Va.) 467. To the same effect, see Feiliplace v. Gorges, 1 Ves. 46, 49 ; Stewart v. Stewart, 7 Johns. Ch. 229 ; Cooney v. Woodlmrn, 33 Md. 320; Pratt v. Wright, 5 Mo. 192; Mitchell v. Moore, 16 Gratt. ( Va.) 275. For instances of marriage settlements, whereby the husband deprived himself of any right to curtesy, see Adams v. Dickson, 23 Geo. 400; Mason v. Deese, 30 Geo. 308 ; Hooker v. Lee, 7 Ired. {N. G.) Eq. 83; Ward v. Thompson, 6 Gill & Johns. {Md.) 349 ; Townsend v. Matthews. 10 Md. 251.</p> <p>If a power of disposal by will be reserved to the wife, its due execution will, of course, deprive him of curtesy. Pool v. Blakie, 53 111. 495 ; see Clark v. Clark, 24 Barb. {N. T.) 581 ; Steward v. Boss, 50 Miss. 776.</p> <p>After a marriage settlement providing that “ the marriage shall not alter, change, or in any way affect the right of property; but that each of their property shall be at their own disposal, and go to their heirs * and assigns in the same manner as though the marriage had not taken place,” the wife alone executed a mortgage, in 1809, upon her own lands, to secure a bond given by her before marriage.—Held, that the rights of the husband in his wife’s realty could not be barred at law, except by his joining in the mortgage, notwithstanding the .settlement. Den, Camp v. Quinby, Pen. 985.—Rep.</p>

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

<p>The three years’ residence requisite to give jurisdiction in cases of divorce {Rev. p. 315, § 1), must be continuous.</p>

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

<p>Equity will enforce.the performance of an agreement made by the defendant with a testator, that if the latter would bequeath $30,000 to him, instead of $20,000 to him and $10,000 to complainants, he would hold $10,000 thereof in trust for their benefit.</p>

<p>Where the title to land is not in A at the time of erecting a building, and he 'has no legal consent from the owner, mechanics liens thereon must be postponed to a purchase-money mortgage given after-wards by A when he had acquired title, although the building was almost finished.</p>

<p>Bill for injunction, &c. On order to show cause why injunction should not issue. On bill and answers and affidavits.</p>

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

<p>A stockholder who subscribes for his stock under an agreement with the secretary of the company that the company will “redeem” his stock at any time at par and ten per cent, interest, and for payment assigns a mortgage with a collateral policy of insurance, payable, in case of loss, to the company, cannot, after loss and payment to them, and the insolvency of the company, recover the amount from the insolvent company, as against bona fide stockholders and creditors ; it appearing that the object of the transaction was to give the company credit before the public.</p>

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

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

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

<p>Usurious brokage taken by a third person, whether an agent of the mortgagee or not, if taken without his knowledge or consent, will not taint the mortgage. The rule that such brokage, to be valid, must be taken by virtue of an independent -agreement between the borrower and the broker, not approved.</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>

<p>Bill for relief.</p>

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

<p>1. A fire marshal employed under an ordinance providing for a triennial election, may be deprived of his office and salary for the ■unexpired term, by the adoption of an ordinance abolishing the office and that entire system of extinguishing fires.</p> <p>2. Such official is a necessary party to an injunction bill to restrain the city from x>aying his claim.</p>

<p>Where there was a stipulation in a deed absolute on its face, but in reality a mortgage, that the grantee assumed and agreed to pay a prior mortgage on the premises, and it appeared, as well by the defeasance as otherwise, that the grantee was not in fact, as between him and his grantor, liable upon the assumption, the latter having in the defeasance itself covenanted to pay the principd.1 and interest of the mortgage in question, thereby indemnifying the grantee against his assumption,—Held, that the grantee was not liable on the assumption to the prior mortgagee.</p>

<p>1. A son remaining in possession of lands after conveying them to his father, the latter being very old and living with the son, is no proof of fraud.</p> <p>2. Withholding a deed from the records for several years may, as an element in the proof of fraud, be explained so as to rebut any presumption of fraud arising from it.</p>

<p>A. and B, partners, gave a joint and several bond and warrant of attorney to T., for a partnership debt. Judgment was entered and execution issued on February 7th, 1876. On February 20th, A. and B. made an insolvent assignment, B. being also individually insolvent. The judgment being only partly satisfied, and A. having made an assignment.—Held,'that T. may, under A.’s assignment, share equally the personal effects of A., and is not to be subordinated to his individual creditors.</p> <p>Note.—In equity, a partnership debt is several as well as joint. Story on Partn., $ 362;'' Col/yer on Partn., § 580; Wisham v.IAppincott, 1 Stock. 353; Wilkinson v. Henderson, 1 Myl. & K. 582; Emanuel v. Bird, 19 Ala. 596; Devaynes v. Noble, 1 Meriv. 529, 2 Russ. & Myl. 494; Mason v. Tiffany, 45 III. 392 ; Camp v. Grant, 21 Conn. 41 ; see Ourrey v. Warrington, 5 Barring. [Del] 147.</p> <p>In some of the states such debts are made several by statute. Collyer on Partn., §$ 580, 757 ; Miller v. Northern Bank, 34 3iiss. 412; Reedy. Girty, 6 Bosw. (N. F.) 567.</p> <p>The New Jersey statute (Obligations, Rev. p. 741,) providing that upon service of process on one of several joint debtors “on any joint contract, obligation, matter or thing,” and a return of the others non inventi, judgment may be entered against all, includes a partnership simple contract debtor. McMurtrie ads. Doughten, 4 '¿ah. 252 ; Barker v. Brink, 4 Zab. 333 ; Thompson v. Johnson, 11 Vr.-</p> <p>And the same construction has been given to similar statutes in other states. Jjewis v. Williams, 6 Whart. {Pa.) 264; Leggett v. Boyd, 6 Wend. (N. F.) 500 ; Brown v. Birdsall, 29 Barb. {N. Y.) 549 ; Doggeft v. Jordan, 3 Fla. 215 ; Loney v. Bailey, 43 31d. 10 ; see, also, Barton v. Petit, 7 Branch 194, criticised in Early y. Clarkson, 7 Leigh { Va.) 83, 85. Contra, Ourrey v. Warrington, 5 liarring. {Del.) 147 ; see Jones v. Ross, Law Repos. {R. C.) 450, and Kelly v.Muse, 11 Ired. {N. O.) 182, 186.</p> <p>There is no ground, however, for applying the distinction between the rules at law and in equity, where, by the instrument itself, the partners are expressly “.jointly and severally” bound. Bigelow's Case, 3 Ben. 146 ; Stone's Case, L. R. (8 Ch. Ap.) 914; Morris v. Morris, 4 Gratt. ( Va.) 293 ; Rowlandson’s Case, 3 P. Wms. 405 ; Snow v. Howard, 35 Bari. {R. Y.) 5o ; see, however, Ganson v. Lathrop, 25 Barb. {N. Y.) 455 ; Tuttle v. Eskridge, 2 Munf. { Va.) 330; Snodgrass’s Appeal, 13 Pa. St. 471, 473.</p> <p>Equity admits partnership creditors who ' have exhausted their remedy against the firm assets, to participate equally with separate creditors in the distribution of the separate asséts, where some equitable ground of relief is shown, as the death or insolvency of the other partners. ■Northern Bank v. Keizer (2 Dar. Ky. 170), 14 Am. Law Reg. 75, and notes; Brock v. Bateman (25 Ohio St. 609), 24 Am. Imw Reg. 214, and notes; McCulloch v. Dashiell (1 Har. & Gill 196), 1.4m, Lead. Cas. 463 ; Silk & Prime, 2 Lead. Cos. in Eq. (4th ed.) *111.</p> <p>The whole estate must be before the court for distribution, the .joint as well as the several. Mittnight v. Smith, 2 C. E. Gr. 259 ; McDonald v. Beach, 2 Black/. {Ind.) 55 ; Kirby v. Schoonmaker, 3 Barb. Oh. 46 ; United States v. Lewis, 13 Nat. B’k Reg. 33, Strong, J. ; Downing's Cass, 1 Dill. 33 ; Scudder v. Delashmut, 7 Iowa 39 ; Watson v. Gabby, 18 B. Mon. {Ky.) 658 ; see Frear’s Case, 3 Ben. 467 ; Sage v. Chollar, 21 Barb. (N. Y.) 596.</p> <p>To entitle joint creditors to come in equally with separate creditors, there must be. no joint estate, however small, at the time of the insolvency of the singlo partner. Jansoiis Case, 3 Madd. 229; Peake’s Case, 2 Rose 54,’and note; Smith’s Case, 13 Nat. B'lc Reg. 500; Black's Appeal, 44 Pa. St. 503, 507 ; Smith v. Mallory, 24 Ala. 628; Kennedy's Case, 2 De G. M. c& G. 228 ; Marwick’s Case, 3 N. Y. Leg. Obs. 286 ; Collier's Case, 12 Nat. B’k Reg. 266 ; see Tailt’s Case, 16 Yes. 194.</p> <p>In some cases, even under these circumstances, equal participation has been refused. Howe v. Lawrence, 9 Gush. {Mass.) 553 ; Somerset Works v. Minot, 10 Cush. 592; Byrne’s Case, 16 Am. Law Reg. 499 ; but these decisions have been questioned. Knight’s Case, 2 Biss. 518, 521; Cook’s Case, 3 Biss. 122, 125; Long's Case, 7 Ben. 141, 151 ; see Mead v. Fayetteville Bank, 6 Blotch. 180, 187.</p> <p>it has been held, however, that if the joint assets are so small that they will be exhausted in paying joint costs, then the joint creditors may share equally. McEwews Case, 6 Biss. 294; see Brock v. Bateman, 25 Ohio St. 609. Coxtra, Kennedy's Case, 2 De G. M. <& G. 228.</p> <p>Goods in the hands of a joint creditor pledged by the firm to secure his debt, are not such joint effects as prevent his coming in equally. Hill’s Case, 5 Bos. & Pul. 191, note.</p> <p>None of these cases, however, touches the question of the partnership creditor’s right to share with the individual creditors, where he has, by judgment or otherwise, obtained, a legal lien.</p> <p>A partnership creditor may, of course, resort to the separate property of any of the members of the firm in order to satisfy his debt, and his execution will, if the firm be solvent, be prior to that of any individual creditor, although the judgment of the latter may have been first obtained. 2 Lead. Cas. in Eq. (4th ed.) 394 ; and, also, Randolph v. Laly, 1 C. E. Gr. 313 ; Innford v. Linford, 4 Lutch. 113 ; Cum-• mings’s Appeal, 25 Pa. St. 268 ; Field v.---, 4 Ves. 396 ; Roberts v. Oldham, 63 N. 0. 297 ; Fenton v. Folger, 21 Wend. [N. Y.) 676 ; Kuhne v. Law, l4 Rich. (8. C.) 18 ; see O’Bannon v. Miller, 4 Bush (Hy.) 25 ; Hos-kins v. Johnson, 24 Geo. 625, 630; Stevens v. Perry, 113 Mass. 380.</p> <p>The legal lien obtained by a partnership creditor, whether upon the partn ership or separate property of a partner, will be recognized and enforced; whether such lien consist of a judgment at law (Averill v. Loucks, 6 Barb. [N. Y.) 470 ; White v. Dougherty, Mart. & Y. [Term.) 308, 321; Lewis’s Case, 8 Nat. Bank Reg. 546; Cleghorn v. Ins. Bank, 9 Geo. 319 ; Baker v. Wimpee, 19 Geo. 87 ; Hoskins v. Johnson, 24 Geo. 630 ; Bowker v. Smith, 48 N. II. Ill; Straus v. Kerngood, 21 Gratt. [Va.) 584; Kuhne v. Law, 14 Rich. [S. C.) 18 ; McDermott v. Strong, 4 Johns. Ch. 687 ; Hosack v. Rogers, 8 Paige 229. Contra, Berrian’s Case, 6 Ben. 297; Sniffer v. Sass, 14 Rich. [S. C.) 20, note ; see Toombs v. Hill, 28 Geo. 371; Bass v. EstiU, 50 Miss. 300); or a decree in equity (Ter/nine v. Colton, 1 Beas. 312, 314; Woddrop v. Price, 3 Desauss. [S. C.) 203 ; Foster v. Barnes, 81 Pa. St. ' 377); or, a mechanics lien [Rainey v. Nance, 54 III. 29, 35); or, an attachment [Allen v. Wells, 21 Pick. 450).</p> <p>If a partnership creditor holds collateral or additional security, as a, mortgage, he can claim no priority over an individual creditor holding a prior mortgage on the same property. January v. Poyntz, 2 B. Mon. [Hy.) 404. But the holding of such mortgage or pledge will not deprive the partnership creditor of his priority, if the individual be merely a simple contract creditor. Roberts v. Oldham, 63 JST. 0. 297 ; see Lallan.de v. McRae, 16 La. An. 193 ; Hill’s Case, 5 Bos. & Pul. 191, note ; Morrison v. Kurtz, 15 III. 193.</p> <p>For the effect of a mortgage given by an individual partner to secure a firm debt, see Tiffany v. Crawford, 1 McCarl. 278 ; Averill v. Loucks, 6 Barb. (N. Y.) 470; Bancroft v. Snodgrass, 1 Cold. (Tenn.) 430.</p> <p>An assignment cannot affect the lien of mortgages and judgments, since they are expressly saved by the statute. (Rev. p. 37, ?¿ 1, notes (a) and (b).) See, also, Allen v. Wells, 22 Pick. 450; McLermutt v. Strong, 4 Johns. Ch. 687.</p> <p>After a partnership creditor has exhausted the firm assets, he is entitled to come in equally with separate creditors under an assignment by one of the partners. Gadsden v. Carson, 9 Rich. (S. C.) Eq. 252; see Black’s Appeal, 44 Pa. St. 503'; Fellows v. Greenleaf, 43 N. H. 421; Pennington y.Bell, 4 Sneed (Tenn.) 200.—Rep.</p>

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

<p>Specific performance will be decreed of a purchase of lands at public auction made by the owner, where the advertisement and sale have been fairly conducted, although there may be differences of opinion as to the adequacy of the price realized.</p>

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

<p>A defendant’s denial, under oath, of a verbal assumption of a mortgage at the time of a sale of lands, corroborated by the scrivener’s evidence, the consideration of the deed and the absence of such assumption therein, is not overcome by the evidence of two witnesses as to his admissions subsequent to the sale.</p>

<p>A grantee executed, at the same time and place, two mortgages on the same lands, one a purchase-money mortgage to his grantor, the other a mortgage to secure a bond given by himself and three sureties to W., for $2,000, which were paid at the same time to the grantor.— Held, that W. could not, by having his mortgage registered first, acquire a priority over the purchase-money mortgage; and that W.’s assignee held it subject to the same equity. •</p>

<p>An omission of part of the premises from the description in a sheriff’s deed on the foreclosure of a mortgage covering the entire premises, was corrected. It was shown in the case that all of the parties interested were represented at the sale, and that they, as well as the vendee, understood that the entire premises were being sold ; that a. full consideration was paid ; that the defendant’s mortgage, a subsequent encumbrance, was satisfied; and that the vendee had, ever since the sale, been in quiet possession of the whole tract, and had expended large sums of money in permanent improvements thereon.</p>

<p>On the ground of fraud, the complainant replevied certain goods on which a sheriff had levied by virtue of a judgment and execution obtained by one of the defendants, a father, against another, his son. On the trial the complainant could not prove the fraud, and judgment was entered against him and his sureties on the replevin bond. The complainant afterwards discovered other evidence of the fraud, and, in trover for the same goods, recovered a judgment. The son has absconded.—Held, that equity will relieve the complainant by cancel-ling the judgment in replevin against him.</p>

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

<p>1. A creditor’s bill to set aside fraudulent conveyances may be filed by the creditors of a deceased debtor, who have exhausted their remedy at law against his estate, although they have not obtained judgments on their several claims.</p> <p>2. Conveyances by a solvent father to his two sons, in consideration of services rendered by them for many years, made openly, the deeds being recorded soon afterwards, and the sons remaining in continuous possession thereafter, are good against creditors.</p>

<p>1. Held, in this case, that the petitioner should have made the affi davit of the defendant’s non-residence. One taken by her brother-in-law, held not sufficient.</p> <p>2. To authorize a divorce, more than the unsupported testimony of the'petitioner is necessary to prove the desertion.</p> <p>3. The master should comply with the 159th rule.</p>

<p>1. A court of equity will give relief against an unfair division of joint property which is the result of an innocent mistake.</p> <p>2. A party may waive an objection to the competency of a witness produced against him.</p> <p>3. If the objection is known when the witness is called, he must make it promptly; if he fails to do so, and treats the witness as competent, the objection will be considered waived.</p>

<p>1. If'on the transfer of negotiable paper an endorsement is omitted through accident, mistake or fraud, a good title will pass in equity by-mere delivery.</p> <p>2. The fact that a party has jet_up in a suit at law matters which are grounds of equitable relief only^will be no bar to his right to relief in a court of equity.</p> <p>3. A judgment of a court of law will not conclude an inquiry dt cannot make, nor cut off a remedy it cannot administer.</p>

<p>1. As a general rule, in setting up the defence of usury, the usurious contract must be described with precision and accuracy, and proved as laid.</p> <p>2. But when the complainant voluntarily confesses the taking of usury, and there is a variance between the contract alleged and that proved, the court, in order to give the defendant the benefit of facts admitted, will direct an amendment of the answer.</p>

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

<p>While in mere matters of management or regulation the court may exercise a wide discretion, still, where the rights to be controlled grow out of a contract, the administration or regulation must conform to the contract, for the court is as much bound by the contract as the parties themselves.</p>

<p>1. A railroad constructed under the general railroad law may con nect with another railroad at a point where there is neither town, city nor village.</p> <p>2. Both terminal points of a railroad, constructed for the purpose of forming a connection between existing roads, may be in the same town, city or village.</p> <p>3. A railroad constructed under the general railroad law may lawfully occupy a public highway to the extent of a reasonable necessity.</p> <p>4. A complainant is not entitled to a preliminary injunction when the right on which he founds his claim is, as a matter of law, unsettled.</p>

<p>On appeal from the decree of the orphans court of Burlington county.</p>

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

<p>A complainant filed his bill with a double aspect, asking that a certain voluntary partition should be established,.or, failing in that, to have partition made. Such voluntary partition was established by decree, but, on appeal, that decree was reversed, and the record remitted to be proceeded in according to the practice, &c.—Held, that it was right for the chancellor to retain the bill in order to decide on the alternative prayer for a partition.</p>

<p>On appeal from a decree of the chancellor on exceptions to a master’s report. The opinion below is reported in Kuhl v. Martin, 1 Stew. 370.</p>

<p>On appeal from a decree of the vice-chancellor, reported in Force v. City of Elizabeth, 1 Stew. 408.</p>

<p>Where neither the deed nor the mortgage for lands sold showed any division of the tract into lots, and the respondent testified, also, that the sale was in gross,—Held, that a claim by the appellant for the reformation of the instruments, made nearly six years afterwards, on the ground that the tract contained fourteen lots more than she then supposed, could not be sustained.</p>

<p>On appeal from a decree of the ordinary, reported in Holcombe v. Holcombe, 12 G. H. Or. 473.</p>

<p>1. In caso of an executory contract to build á vessel, to be paid for in installments as the work progresses, the title remains in the builder until the work is completed, and the rule is the same where the vessel is built under the inspection of a superintendent appointed by the purchaser.</p> <p>2. The title to the vessel known as the “Stevens Battery” (under the contract between Robert L. Stevens and the United States government), was vested in Robert L. Stevens at the time of his death, and, under his will, passed to Edwin A. Stevens, his residuary legatee.</p>

<p>1. The criteria to determine whether property is real or personal are, annexation, appropriation and intention to make a permanent accession to the freehold.</p> <p>2. Where a mortgage is drawn and executed, Avhich is intended to carry into execution a previous agreement, but which, by the mistake of the draughtsman, either as to law or fact, does not fulfill that intention, or violates it, equity will correct the mistake so as to conform to the intention between parties.</p> <p>3. Where the scrivener, in drawing a mortgage on land from a corporation, made it to the mortgagee and his “successors,” it was reformed to his “ heirs.”</p>

<p>1. Trustees, who are the legal owners of land in fee, may dedicate the land to public uses not inconsistent with the trust.</p> <p>2. An adverse public user, for the purposes of a highway, of land so held in trust, continuing for twenty years, will establish the highway against both trustees and cestuis que trust, whether consistent with the trust or not, and although the trust be for the benefit of a portion of the public.</p> <p>3. When the verdict of a jury, upon an issue framed in chancery, is set aside, the cause cannot be finally decided upon the proofs offered at the jury trial. Ordinarily, such evidence is before the chancellor only for determining what weight should be given to the verdict.</p>

<p>On appeal from a decree of the vice-chancellor, reported in Price v. Trusdell, 1 Stew. 200.</p>

<p>On appeal from a decree of the chancellor, on exceptions to a master’s report. The opinion bglow is reported in Ashhurst v. Field, 11 G. E. Qr. 1.; see, also, S. G., 1 Stew. 315.</p>