Volume 3 — New Jersey Equity Reports

<p>Bill of interpleader, and for an injunction, filed 13th October, 1833. The bill states, that on the 28th day of May, 1833, Gamaliel Bartlett, of the city of New-York, recovered a judgment in the supreme court of New-Jersey, against the complainants in this cause, for sixteen hundred and fourteen dollars and fifty-two cents, debt and costs, and caused a writ of fieri facias to be issued thereon to the sheriff of the county of Sussex, against the real and personal estate of the complainants, returnable to November term, 1833. That Henry McFarland and Daniel' Ayres, in or about the month of June, 1833, sued out of the inferior court of common pleas of the county of Bergen, a writ of attachment against the estate of the said Gamaliel Bartlett, as a non-resident debtor; by virtue whereof, the sheriff of the county of Bergen attached the aforesaid judgment, and the money due-thereon, in the hands of the Complainants. That the said Gamaliel Bartlett is proceeding upon his execution against the complainants for the amount of the judgment recovered against them, and that the said Henry McFarland and Daniel Ayres are proceeding upon their attachment, and threaten that if the complainants pay the amount of the said judgment to the said Gamaliel Bartlett, they will compel the complainants to pay the same over to them, or to the auditors in attachment. That the amount of the said judgment and execution is claimed of the complainants by the sheriff of the county of Sussex, and also by the plaintiffs in attachment. That the complainants know not which of the said claimants is entitled to the money due on the said judgment; that they are ready and willing to pay the said sum of money to either of the said parties to whom it may of right belong, and they offer to bring the same, with the sheriff’s fees of execution, into court, for the benefit of such of the parties as may be entitled thereto. The prayer of the bill is, that the parties may interplead, and that they may be restrained from proceeding at law against the complainants, in respect of the premises. The cause was heard upon motion to dissolve the injunction before answer.</p>

<p>On motion to dissolve injunction.</p> <p>The grounds relied upon in support of the motion sufficiently appear in the opinion of the Chancellor.</p>

<p>Upon a devise of real estate to executors in trust to permit a married daughter “to use and occupy the farm and to take the rents, issues and profits thereof to her own use during her natural life, free from any control of her present or any future husband, and not to be in any wise liable for any debt or debts he now owes, or which any future husband may hereafter contract, ” the court will not, upon the death of the husband, permit the trust to be set aside, or the estate to be conveyed to the cestui que trust</p> <p>Equity, for satisfactory, sufficient cause, will direct a change of trustees.*</p>

<p>A mortgage before foreclosure, is considered in equity as a chattel interest, and goes to the executor.</p> <p>It may indeed be said, technically speaking, that the fee in the mortgaged premises descends to the heir at law; but he is a bare trustee for the personal representatives, and as a general rule he need not be a party to a bill filed by the executor for the foreclosure and sale of mortgaged premises.</p> <p>The assignment of a mortgage, not being by deed, though it may not pass the legal estate, is nevertheless sufficient to transfer to the assignee all the equi* table and beneficial interest in the mortgage, including the right to come into equity for relief.</p> <p>It does not invalidate an assignment, that the subscribing witness to the assignment saw no money paid by way of consideration. If the assignment purports to be for value received, that is, prima facie, sufficient.</p> <p>The lapse of twelve years between the last payment on a bond and the com. mencement of a suit for its recovery, is not such a length of time as to jus. tify the appellation of a stale demand.</p> <p>The declarations of a mortgagee, or his executrix, made after parting with all interest in the mortgage, cannot affect the rights of the assignee.</p> <p>Where the answer is directly responsive to the bill, and the defendant answers from his own knowledge, the answer must prevail unless overcome by the testimony of two witnesses, or by the testimony of one witness attested by strong corroborating circumstances equal to that of another.</p>

<p>' Where an administrator sells lands of his intestate under an order of the Orphans Court, and himself becomes the purchaser, and pays money on ao. count of the purchase, and makes improvement on the land, if afterwards an ejectment is brought by the heirs at law of the intestate, the administrator may, under some circumstances, maintain his bill and enjoin the proceedings at law, and have the equities of the parties settled in this court.</p> <p>But if tlie administrator becomes the purchaser at his own sale, under any circumstances which imply moral turpitude, a court of equity will not aid him. Belief is granted only on the ground, that the administrator, in purchasing, acted in good faith and for the benefit of his trust.</p> <p>If a trustee becomes the purchaser at his own sale, it is the option of the cestui que trust to treat him still as trustee. The trustee can derive no benefit from the purchase. If he has acted without moral turpitude, a court of equity may protect him, so far as to give him a lien on the property for any advances of a reasonable nature which he may have made. If he has been guilty of actual fraud, this court will not protect him.</p> <p>When a witness is examined, being at the time indifferent, and afterwards, by accident, becomes interested, bis deposition may be road. But if he was a necessary party to the suit, though not an actual party at the time of the taking of his deposition, and is afterwards made a party because of his interest, his deposition cannot be read.</p> <p>The cestui que trust may acquiesce in and confirm the sale by acts which will preclude him from afterwards calling the sale in question. But no act will be held as an act of confirmation by a court of equity, unless it was done with a knowledge of his legal and equitable rights by the party whose rights are affected by it. It must bo proved that he knew the defects of the title, in order to give to his act the character of an act of confirmation.</p> <p>The court being satisfied, from the evidence, that the complainant was the purchaser at his own sale, as administrator, declared him a trustee holding the title for the benefit of the defendants, who were the heirs at law of the intestate, and directed an account of the rents and profits of the permanent improvements and of the purchase money, and permitted the defendants to redeem.</p>

<p>A testator devised as follows: — “I do give, devise and bequeath unto my daughter Maria, the wife of 3. E. M., all that farm, &c. now in the occupation and possession of the said 3. E. M. To have and to hold the farm unto my said daughter M., her heirs and assigns for ever; notin any manner-subject to the sale or disposal of her said husband, in any way, manner or form whatever.” Hdd, that it was not the intention of the testator to exclude the husband of the devisee from his estate by curtesy in the land devised.</p> <p>If a testator devise to a feme covert an estate of inheritance in fee simple, he-cannot by any restriction or provision in the will deprive the husband of thedevisee of his estate by the curtesy in the land devised.</p> <p>Those incidents which by law are inseparably annexed to an estate, cannot be-prohibited by any condition or limitation expressed in the deed or will.</p> <p>A court of equity is as much bound by positive rules and general maxims concerning property as a court of law.</p> <p>In giving construction to a devise, the intention of the testator should be regarded unless it be contrary to the rules of law, in which case it should be-considered void as well in a court of equity as of law.</p> <p>In cases of trusts executed or immediate devises, where the trusts are directly and wholly declared by the testator to attach on the lands immediately under the will itself, the construction by courts of law and of equity should be the same.</p> <p>But in eases of executory or imperfect trusts which are only directory, or prescribe the intended limitations of some future conveyance, courts of equity, in striving to ascertain the intention of testators, have not adhered strictly to the rules of construction adopted by courts of law, but-'have directed those conveyances to be made in such manner as to carry out the intention, of the testator, as ascertained from an examination of the whole will.</p> <p>A man cannot by will create sueb an estate, as by the rules of the common law he could not in his life time create by deed.</p>

<p>The lands of an infant may be sold for his benefit, and the property changed from real to personal, under the authority and direction of the legislature, without regard to the interests of real or personal representatives. The validity of the title under such sale does not depend on the assent of the infant: he cannot disaffirm the sale on coming of age.</p> <p>Courts of equity may, and frequently do, change the character of property belonging to infants or lunatics. They will permit trustees or guardians to do it where it is manifestly for the advantage of the owner, without reference to the contingent interests of real or personal representatives.</p> <p>The authority of the legislature to convert the property of an infant from real to personal, cannot be questioned ; and where there is no breach of trust, or violation of good faith, or sinister design, on the part of the guardian who applies for the law, the act cannot be impeached.</p> <p>Where the property of an infant is changed by authority of a competent tribunal, from real to personal, it will, upon the death of the infant, go to his personal representatives.</p> <p>Where there has been a breach of trust, as where the trustee or guardian has abused the trust, and changed the quality of the estate to subserve his own interest, there arises an equity to undo the act in favor of the person whose rights are injured.</p> <p>But there is no equity between the personal representative and the heir, as such. They are both volunteers: each must take what they find at the death of the person entitled for life, in the condition in which they find it.</p>

<p>Hvery proprietor of lands on the banks of a river, has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run, without diminution or alteration.</p> <p>He has no right to use the water to the prejudice of other proprietors above or below him. He may use it while it runs over his land, but cannot unreasonably detain it, or give it another direction.</p> <p>An exclusive enjoyment of water or of light, or of any other easement, in any particular way, for twenty years, without interruption, becomes an adverse enjoyment sufficient to raise a presumption of title as against a right in any other person, which might have been, but was not asserted.</p> <p>A trivial or unimportant interference, such an one a,s does not sensibly and plainly interrupt the complainant’s enjoyment, will not call for or warrant the restraining power of a court of equity.</p> <p>As against a riparian owner seeking to erect an improvement on his own land,the complainant ought to show that his superior rights have been or will be, not probably, but really and sensibly affected.</p> <p>If the complainant is secured in the enjoyment of the use of the stream as he has heretofore had it, without any sensible and material alteration so as to occasion an actual injury, it is all he can require.</p>

<p>The court will open a decree obtained by surprise, but not where a party has had notice of the suit and has had an opportunity of making his defence, and has neglected doing so.</p>

<p>Where the equity is denied, the general rule is, that the injunction should be dissolved.</p>

<p>The bill is filed for the foreclosure and sale of mortgaged premises. The defendants have filed a demurrer to the bill.</p>

<p>A testator by his mil directed that-when, bis youngest child attained the age of twenty-one years, all bis real estate should be sold or divided, wbiob ovor a majority of bis children then living should think best, and invested his executors, and the survivor of them, with full power and authority to sell either at publio or private sale, as to them might seem most advantageous. all his real estate, in case it should be determined by the election of his children, as aforesaid, to make sale.</p> <p>EeM, that the devisees, before electing whether to sell or divide the land, had a right to call upon the executor to decide, whether in case of a sale he would sell at public or private sale ; and if the executor did determine in what manner he would sell, and the dovisees were influenced by that determination in making their election to have the property sold, the executor could not alter his determination without giving the heirs an opportunity of altering their decision upon the question of sale or division.</p>

<p>The complainant obtained a decree for the foreclosure and sale of certain mortgaged premises. After the execution was placed in the hands of the sheriff, the defendants, some of them under a decree of this court, and others under a judgment at law, advertised certain steam engines and other articles for sale, which were upon the mortgaged premises, and ordered to he sold under the complainant’s decree. The complainant filed his petition, alleging that the said steam engines, &c., were fixtures, and that the defendants had no right to sell and remove them from the mortgaged premises. An order was made restraining the defendants from selling. A motion was now made to discharge that order.</p>

<p>Bill for foreclosure, filed 16th ’November, 1829. Woodworth and others, who subsequently purchased the premises, answered, admitting the complainant’s mortgage, but insisting that they were bona fide purchasers for value, without notice ; and that the mortgage, except as to the first fifty acres described therein, is void for uncertainty. The cause was heard upon the pleadings.</p>

<p>Where a testator, by Ms will, directs that the residuum of his estate, real and personal, shall be sold by his executors, and the monoys arising from the sale be divided among his children in a different ratio from that in which the land would have descended, the devisees take a vested interest in the proceeds of the sale of the estate, both real and personal, and the executors are bound to make sale according to the directions of the will.</p> <p>If no sale be made by the executors, a son of the testator does not become seized of such an estate in the land as will entitle Ms widow to dower.*</p>

<p>Where A. makes a lease of premises to B. for a term of years, and afterwards leases the same premises to C., and puts him in possession, B. cannot maintain a bill in this court against A. and C. for a specific performance, and compel them to deliver him possession of the leased premises.</p> <p>A court of equity will frequently decree possession of real estate as auxiliary relief, but will not entertain a bill whose sole object it is to recover possession.</p>

<p>Tlie rule in Neto York, that where premises are an inadequate security, and the mortgagoris insolvent a receiver will be appointed, has not been adopted by the Court of Chancery in this state.</p> <p>The rights of a first and subsequent mortgago aro different. The first mortgagee has the legal right to the rents and profits, and has his remedy at law by ejectment. A subsequent mortgagee is better entitled to the remedy of receiver, because he has no right to the possession at law as against his prior mortgagee, and if the first mortgagee refuses to exercise his legal rights, there seems a propriety for this court’s interfering.</p> <p>Where, upon the application of a subsequent mortgagee, a receiver is appointed, it is without prejudice to any prior mortgagee or other encumbrancer, and the receiver will be directed to keep down the interest upon prior encumbrances.</p> <p>Mere inadequacy in the value of the mortgaged premises, and insolvency of the mortgagor, do not constitute sufficient ground for the appointment of a receiver. If buildings have been burnt down, or have been permitted to go to decay, or waste committed, and the property has depreciated in value through the fault or negligence of the mortgagor or tenant in possession; or, where there is any act on the part of the mortgagor or such tenant, which shows fraud on his part, or makes him chargeable with bad faith in misappropriating the rents and profits for other purposes than that of keeping down the interest on the encumbrances, in such cases the court may properly appoint a receiver.</p> <p>The power should be exercised with great caution, and only in cases where there is an apparent necessity for it.</p> <p>Under the peculiar circumstances of this case, a receiver was ordered. Some of these were, that the mortgagor had sold the property, and he and his grantee were insolvent; the premises were an inadequate security for the mortgage money, and the grantee of the mortgagor had agreed to reduce it one fourth, and was put in possession under such agreement, and then refused, and offered to sell the property for the amount of encumbrance, and deliver the possession after she had reaped the crops.</p>

<p>The guardian, of an infant cannot convey the real estate of his ward, without the authority of a court of equity; nor will the court sustain such conveyance, made either by the infant or his guardian, though the infant have received the consideration of the conveyance.</p> <p>But in the absence of fraud, the infant will be deoreed, upon recovering the land, to refund the consideration money, together with the value of the improvements on the land, arising from repairs of the buildings and fences and manuring the land, though he will not be decreed to allow the value of new buildings or other permanent improvements.'</p>

<p>The claim to a legacy is essentially an equitable and not a legal claim, and the character of the right is not altered by making it cognizable in the common law courts. It is an assignable interest, and the assignment passes the whole right of the assignor.</p> <p>Is it barred by the statute of limitations ? — Quere.</p> <p>Legatees who have assigned all théir interest, are not necessary nor proper parties to a bill filed by the assignee for a recovery of the legacies.</p> <p>The orphan’s court and court of chancery have, to a certain extent, concurrent jurisdiction in reference to the accounts of executors, administrators and guardians; but in all cases where a party seeks relief on grounds peculiarly of chancery jurisdiction, and which call for the exercise of chancery powers, the jurisdiction of chancery is paramount.*</p>

In October term, 1849, of this court, Charles Boland filed a bill upon a bond and mortgage, executed by the defendants, for the sale of the mortgaged premises to pay the debt secured by the mortgage. That suit abated in consequence of the death of the complainant.

<p>If the defendant by Ms answer admits the existence of - tbe mortgage sought to be foreclosed, but seeks to avoid it, the matter alleged by way of avoidance must be sustained by evidence independent of tbe answer.</p>

Bill for injunction and relief, filed February eighth, eighteen hundred and thirty-seven.

<p>Although a mortgage is upon its face usurious, by being so drawn as to secure seven per cent, interest, it is competent to show that it was so drawn by mistake, and that it was the intention of the parties to secure six per cent, only.</p> <p>Whore A. loans money to an incorporated company, and exacts, as part con' sideration for the loan, that the company shall employ him as its officer, or agent, at an exorbitant price, when his services are not needed, and were not in fact to bo rendered, the contract is usurious.</p> <p>:V mortgage to secure future advances is good and valid to the extent of the amount secured thereby, and it is not necessary that the purpose should appear on the face of the mortgage. Such mortgages, however, are objectionable, and ought not to be encouraged. They are sustained by the weight of authority.</p> <p>A judgment subsequent to a security given to secure future advances has priority over all advances made subsequent to the existence of such judgment.</p>

<p>A party having commenced a suit at law, this court will not entertain a bill to change the forum of litigation, unless upon some peculiar grounds of equity.</p> <p>A court of law is the proper tribunal to investigate the legal title, and a court of equity will interfere only to protect an equitable against a strict legal title, or for the purpose of compelling a discovery to protect the legal title.</p> <p>Where the bill shows, upon its face, that the complainant has the legal title, and a complete legal defence to an action of ejectment, this court will not interfere w ith the suit at law.</p> <p>The bill must show clearly the grounds of equity, and they must not be left to inference.</p>

<p>A mortgagee who h'as assigned his mortgage by an instrument not uitder seal, and in whom the legal title to the mortgaged premises still remains, is not a necessary party to a bill of foreclosure filed by the assignee.*</p> <p>It seems that the rule requiring all the parties in interest to be before the court, is to be regarded rather as a rule of convenience ; and where the legal right is entirely technical, and no beneficial purpose can be answered by enforcing, the rule, it will not be followed.</p>

<p>If a person purchase an estate knowing it to be in the possession of tenants, he purchases subject to their estates.</p> <p>But the purchaser must have notice of the possession before he is bound to inquire into the estate. If the possession is of such a character that it is visible and notorious, then he will be presumed to have knowledge of the possession. But if the possession is such as, from its character, is not visible and of common report, and would not attract the attention of an observing man, then it is not such a possession as is calculated to provoke inquiry and put a party upon his diligence, and abona fide purchaser ought not to be concluded by it.</p> <p>On the 1st of May, 1819, P. F. G., for the consideration of $1600, conveyed to H. W., her heirs and assigns, a mill seat with all its privileges, with the privilege of overflowing adjacent lands of P. F. G., for the consideration of $180 a year. The rights of the grantee under the deed became vested in O. M. W. and L. G. W., as devisees of the grantee. On the 31st of December, 1822, P. F. G. leased to C. M. W. and L. G. W., for the term of fifty years, at a yearly rent of $132.50, four acres of land, adjacent to the mill seat conveyed by the deed of 1819, and then conveyed all their rights, as such devisees and grantees, to L. W. Afterwards P. F. G. mortgaged all bis lands to E. M. Subsequently, and on the 24th of January, 1831, P. F. G. by deed, after reciting his conveyance to H. W. and the lease to O. M. Vi. and L. G. W., and that all the rights under the said deed and lease had become vested in L. W., and that P. F. G. and L. W. were desirous that those rights which had become thus vested in L. W. should be surrendered, and others substituted, and the yearly rents surrendered for a sum certain in lieu thereof, did, for the consideration of $1200, grant and sell to L. W. all the rights and privileges mentioned in the lease to O. M. W. and L. G. W., and all the water rights and privileges which P. F. G. owned, and the right to use and overflow the same, and did acknowledge that the said sum of $1200 was in full satisfaction of all yearly rents and demands arising under the lease aforesaid. Although the rights of L. W. under the deed of 1831 were substituted for those under the deed of 1819, and the same right of overflowing reaffirmed and secured, the mortgage to E. M., although subject to the deed of 1819, is discharged from all lien to which it was so subject by the deed of 1831.</p> <p>In a bill to foreclose a mortgage, the rights of all encumbrancers at the commencement of the suit not made parties are not bound or affected by the decree.</p> <p>If the first mortgagee bring a bill to foreclose against the mortgagor, and obtain a decree without making subsequent encumbrancers parties, their rights are not foreclosed, and their remedies still remain against a purchaser claiming under the decree. 1 Stock. 358.</p> <p>The Trenton Bank, as the assignee of the mortgage to E. M., foreclosed the same, and sold under a decree of this court. L. W. was not made a party to the suit. The bank, with full knowledge of L. W’s rights, purchased. The bank sold to the defendant, Yard, subject to whatever rights L, W. might have. The bank would not have been permitted to treat L. W. as a trespasser; the grantee of the bank, Under the circumstances, enjoined from prosecuting a suit at law against L. W’s grantee for exercising his right under the deed of P. F. G. to L. W. of 1331.</p>

<p>Bill for the specific performance of a parol agreement for the sale of land, and for an injunction to restrain the vender from proceeding at law to recover possession from the vendoe. Upon filing the bill an injunction issued, as prayed for. Hearing upon bill, answer, replication and proofs.</p>

<p>Equity will not lend its aid to carry into effect an imperfect or doubtful agreement.</p> <p>The general rule is, that every agreement of which there should be a specific performance, ought to be in writing, certain and fair in all its parts, and for adequate.consideration. •</p> <p>The court will not refuse its decree for specific performance, merely because the agreement doth not state in what township, county, or state the lands agreed to be conveyed, lie, provided the description of the premises is not thereby rendered altogether indefinite.</p> <p>Reasonable certainty in the description is all that is required; and it is not material in what way the requisite certainty is attained.</p>

<p>Where a bill for the recovery of a legacy bequeathed, to a married woman, was filed thirty-one years after the death of the testator, twenty-four years after the settlement of his estate, and seventeen years after the death of the executor, and no cause shown for the delay, the bill was dismissed on the ground of the presumption of the payment of the demand, arising from the time which elapsed after the right of action accrued before suit brought.</p> <p>The cases of Ellison v. Moffat, 1 John. Chan. R. 46, and Jones v. Turberville, 2 Vesey, jun. 11, approved.</p>

<p>Bill for specific performance, filed June 12th, 1833. Demurrer by Morris- and wife,- the defendants, to the bill; assigning, among others, for cause of demurrer, that' !i'it appears by the said bill' of complaint, that the complainants seek to obtain-the specific performance of an article of agreement, by the Wife-of the defendant, R. M^, for the conveyance of the right of the' said S. M. to certain real estate which descended to her from her father, or w-hich was devised to her by her father, E. W., in the said bill named, and yet the said complainants do not show bl- and by their said bill; that the said S. M. acknowledged, ón a private examination- apart- from her husband, before an officer authorized to take such acknowledgment, that she signed, sealed and delivered the said article of agreement as her voluntary act and- deed, . without any fear, threat or- compulsion of her said-husband.”'</p> <p>The- cause was heard upon the demurrer. The chancellor' having been of counsel- with one .of the parties, called in George ' K. Drake, esquire, one of the masters of the court, to advise with him, &c. The demurrer was argued- before the master.-</p>

<p>The bill in this cause was exhibited on behalf of the receivers and certain of the stockholders of the Farmers and Mechanics5 Bank of New-Brunswick; praying, among other things, that the president and directors of the said company be restrained by injunction from calling in or receiving an instalment of the capital stock of said company, and from declaring the first instalment forfeited in case of non-payment, and also from calling in any other instalment until the further order of the court. Upon exhibiting the bill, the chancellor directed notice of the application to be given, and a copy of the bill to be ser’ ed on the. defendí nts. The cause came on for hearing, pursuant to notice, on the 6th day of July, 1834, upon the bill, and ezyarte affidavits on the part of the defendants, the bill not having been previously filed. The nature of the bill is fully stated in the opinion of the chancellor.</p>

<p>An answer to a bill under the statute relative to divorces must not be sworn to. Under the second section of the act, if sworn to, the defendant is not entitled to the benefit of it, as in other causes in equity.</p> <p>If the answer is sworn to, it may be used as an affidavit on a motion for alimony pendente lite.</p> <p>Alimony, under the circumstances, refused, but counsel fee allowed.</p>

On motion to dissolve. This is a bill filed by one partner against another, praying for a dissolution of the partnership, for an injunction, and receiver. On filing the bill, an injunction was ordered by one of the masters. A motion is now made to dissolve the injunction.

Ttttt. bill is filed against James Herbert, surviving executor ■of James Herbert, deceased. The prayer is for process against said James Herbert. The subpoena issued against James Her bert generally, without stating the character in which he is sued General demurrer.

<p>The bill in this case was filed on the 1st of June, 1854, by Edward L. Osborne and Christiana his wife against Thomas Edwards, Samuel Hall, and Alexander G. Cat-tell, trustees under the will of John Hall, deceased, Thomas Sinnickson, Joseph Bolle, and James Newell, commissioners to sell certain lands formerly of John Hall, deceased, and Jacob M. Ramsey.</p> <p>The bill alleges, that one John Hall, by will, dated 3d of November, 1842, left certain real and personal estate to Thomas Edwards, Samuel Hall, and Alexander G. Cat-tell, in trust for his son for life; and if he should die without issue, then -he gave one half to the children of William Hall (a deceased brother), and the other half to the children of Hannah Nicholson (a deceased sister). The testator died in the month Of April, 1843. The will was proved on the 1st of May, 1843. The trustees accepted the trust, and maintained the son of the testator during his life. He died on the 19th of March, 1852, without issue, consequently the devise over took effect.</p> <p>The real estate, after the death of testator’s son, was divided between the representatives of William Hall and the representatives of Hannah Nicholson, and by such division the farm, called “ Manington farm,” was set off to the representatives of "William Hall, as their share. Upon an application for a division of this farm among them, the commissioners reported it not susceptible of division without injury; and thereupon a sale was ordered and made by the commissioners, who reported the sale to the Orphans Court of the county of Salem, at the September term, 1858, for tbe net sum of $>12,939.77. One fourteenth of this sum belongs to Christiana, wife of Edward L. Osborne, she being tbe granddaughter of William Hall, deceased.</p> <p>The trustees settled their account of the personal property in their hands at the December term of the Orphans Court of the county of Salem, the whole amount on hand beiug $>11,800.98. The one twenty-eighth of this belongs to Christiana Osborne.</p> <p>At the Eebruary term of the Supreme Court, 1854, Jacob M. Hamsey returned a writ of attachment against Edward L. Osborne, under which he had attached these moneys, in consequence of which the commissioners and trustees "both declined to pay over the amount due Christiana Osborne.</p> <p>The bill has been taken as confessed against all the defendants, with the exception of Jacob M. Eamsey, who claims under tlie attachment. He has answered, admitting all the facts, but resting Ms claim upon a question of law, which sufficiently appears in the opinion of the Chancellor.</p> <p>No proof was taken by either party, and the cause came before the court on final hearing, upon bill, answer, and replication.</p>

<p>A testator devises unto Us son, J. P., Us mansion house farm in fee, “ with, this reserve, that the said J. P. or his heirs afford a lawful maintenance to» my daughter A. S. and her two daughters from said farm, as long as they live and should want the same.” He further devises as follows: “I will. that my daughter A. S. should abide, and have a lawful maintenance, and her two youngest daughters with her, on said homo farm, as long as she-the said A. S. lives, and her two daughters shall want their maintenance.”'</p> <p>IMd, that after the death of A. S. her daughters were not bound to remain, upon the home farm to entitle themselves to the provision made for them, in the will.</p>

<p>The general synod of the Associate Reformed church have, by the constitution of the said church, no authority to do any act, or make any regulation, which interferes with the established order of the church.</p> <p>The act of union between the general synod of the Associate Reformed church and the general assembly of the Presbyterian church, adopted on the twenty-first day of May, eighteen hundred and twenty-two, is invalid.</p> <p>A transfer of the funds of the church, as a consequence of the said union, and necessarily connected therewith, is also invalid.</p> <p>That portion of the Associate Reformed church which refused to acquiesce in the act of union, but maintained its separate and independent existence, retained all the rights and interest in thefunds which the church possessed prior to the act of union.</p> <p>Neither the donor of trust property, nor any other person into whose hands it may come, has a right to apply it to any other purpose than that for which it was originally intended.</p> <p>B is a well established principle, that when part of any religious association separate and establish a new society, they cease to be members of the original society, and have no longer any claim to their property.</p> <p>Where property has been given in trust for a church not incorporated, it is competent for any person belonging to that church, on behalf of himself and of all others belonging to that church and entitled to the use of the funds, to come into a court of equity to enforce the execution of the trust.</p> <p>And if the church consists of various congregations, any ono or more of such congregations, being incorporated, may in like manner enforce the execution of'the trust.</p>

<p>D. placed in the hands of O. a bond and mortgage, for which O. gave a receipt that he had received the same to raise money on them; or if he should give the money to' D., or pay it for D., at his request, he was to hold the same as security until repaid. O. procured the money from W., and assigned him the bond and mortgage. W. was not bound to see what disposition O. made of the money.</p> <p>The assignment of a bond and mortgage, duly executed, is prima facie evidence that the consideration was paid.</p>

<p>If a debtor execute an assignment under the statute of New-Jersey, for the benefit of his creditors, annex thereto an inventory of his property and a list of his creditors under oath, and deliver it to the assignee, who receives it, understanding its objects and effect; the act of the assignor is complete, and he is divested of his estate, although the deed were not acknowledged. A trust is created, and the beneficial interest vested in the creditors, the cestui que trusts, though they knew nothing of it.</p> <p>There is no particular formality necessary to the acceptance of a trust. If a person actually consent, or if he go to the property and exercise any power or right over it, it may be considered an acceptance, and especially when the rights of third persons are interested.</p> <p>It is not necessary that there should be an actual consent either in writing or by parol; acts fairly implying a consent are sufficient.</p> <p>An assignee is at liberty to refuse to act: no man can be made a grantee against his will.</p> <p>If one of two assignees refuses to act, the trust is not thereby destroyed, but the whole estate vests in the other, and he alone is competent to execute the trust.</p> <p>If the deed of assignment be executed and delivered, and the trust accepted, the trustee cannot, by surrendering or cancelling the deed, destroy the trust, or impair the rights of the cestui que trusts»</p> <p>If the answer of one of the defendants is not full and satisfactory as to any one of the grounds of equity set up in the bill, the injunction cannot bo dissolved»</p> <p>Where transactions are charged involving fraud, either actual or constructive, and especially where direct interrogatories are put in relation to particular facts, the court cannot be satisfied with a general answer, or one in any way evasive.</p>

<p>A bill may be multifarious, and yet if the parties do not demur to, but answer the bill, and submit the case upon the pleadings and proofs, the court will overlook the defect, provided a decree can be made without causing any embarrassment to the parties as to any other rights they may have, or to the parties or court in executing the decree that the complainants may be entitled to upon the case as it stands.</p> <p>A court of equity may presume fraud, and declare an assignment fraudulent from the character of the assignee appointed by the debtor; but where the trust has been so far executed as that the assignees have settled their accounts in the Orphans Court, it is too late to ask the court to interfere with the assignment on this ground.</p> <p>Although the assignees have settled their accounts in the Orphans Court, the creditors may file their bill in equity; and if they can show fraud on the part of the assignees in the sale of the property, are entitled to relief. The Orphans Court have not the power to grant relief for such a fraud. The assignees are trustees for the creditors, and are responsible for any breach of trust in this court.</p> <p>Under the assignment act, all the property of the debtor, real and personal, passes to the assignee, whether mentioned in the inventory or not, and if any exception of specific property is made, such exception amounts to nothing ; the property passes.</p> <p>Fraud inferred from acts and circumstances showing a motive to defeat the purposes of the law and of the trust. , .</p> <p>A sale of valuable property by assignees, without notice, is an evidence of fraud. A reasonable notice and some description of the character of the property should be given.</p> <p>The bill charges, that the assignees sold without giving any information what was the interest of the debtor in the property, &c. The answer affirms that one of the assignees did give such information. The answer is not satisfactory — it should have stated what the information given was.</p> <p>Mere inadequacy of price, though not of itself conclusive evidence of fraud, has its weight with other circumstances. Gas fixtures, such as the gasometer and the apparatus for generating gas, as between landlord and tenant, are moveable property. They would pass to the heir at law, with the inheritance, or, between grantor and grantee, as fixtures to the realty; but as between landlord and tenant, the latter has a right to remove them during the term.</p> <p>As a general rule, any party whose rights are injuriously affected by a fraud may have relief in a court of equity. A creditor, under an assignment, may institute a suit in this court against the assignees for a fraud in the execution of their trust, although he did not exhibit his claim under the assignment, if he can show that the fraud affects his rights.</p> <p>A sale of tlie debtor’s interest in real estate declared fraudulent under the circumstances, and the purchaser decreed to account for the rents and profits during the term.</p>

The master, having made' his report in this cause, in pursuance of a decretal order, exceptions to the report were filed on the part of the complainant, and the cause came on for hearing upon the exceptions.

<p>Where a judgment creditor is proceeding by execution to raise the full amount of his judgment, when that amount is not due, but has been reduced by payments or otherwise, a subsequent execution creditor is entitled to the aid of this court to restrain the prior creditor from selling under his execution until the payments are ascertained, and the creditor gives credit for them, if he refuses when applied to give the credit, or where there is a dispute as to the amount that ought to be credited between the debtor and the creditor.</p> <p>The answer admits payments, and does not deny that the defendants intended to raise the whole amount. This makes the propriety of the injunction apparent, and of continuing it until the payments are ascertained and credited.</p> <p>The defendants had a lien upon a fund to satisfy their judgment, which was out of the jurisdiction of the court and beyond the reach of the complainants’ judgment and execution. Under the peculiar circumstances, the defendants were enjoined from proceeding against the common fund until they had appropriated the one on whicfi they had exclusive control.</p>

<p>M., by indenture, leased to C. at a stipulated rent, a saw-mill with a quantity of water to drive it “ equal to six horse bower.” At the time of executing the lease, it was generally understood, and believed by the lessor that a less, quantity of water would constitute a horse power at the site of the mill, than-was actually required, and the rent was graduated upon that erroneous, assumption. H'dd,</p> <p>That the complainant must suffer the consequences of his mistake, and that, he was neither entitled to charge the defendant a higher rent than that stipulated in the lease, nor to restrain him from drawing a quantity of water equal to six horse power.</p> <p>Nor will the complainant be entitled to relief although the defendant himself acted at the execution of the lease under the same erroneous impression, unless it appear that, he expressly agreed that the stipulated power should be guaged upon such erroneous estimate.</p>

<p>On motion to dissolve.</p>

<p>On motion to dissolve.</p>

<p>This was a motion to dissolve an injunction. The case is fully stated in the opinion of the Chancellor.</p>

<p>The act, entitled, “ An- act to- prevent frauds by incorporated companies,®’ passed the sixteenth of February, 1829, applies to incorporated companies ■whose charters were then in force, and in which there was no reservation to the legislature of a right to alter, modify or repeal the same.</p> <p>The act regulates, rather than gives jurisdiction to this court.</p> <p>Enactments of the kind contained in this statute, though retrospective in their operation, are not in a legal sense ex post facto: These terms, in legal phraseology, refer to crimes, pains and penalties.</p> <p>Receivers appointed under the act may, in their discretion, on the ground of expediency, ratify a sale made by the company after insolvency, or a sus. pension of its business for want of funds, though such sale is declared by the act null and void as against creditors.</p>

Injunction bill, filed the thirteenth of February, eighteen hundred and thirty-seven. The material charges of the bill are set forth in the chancellor’s opinion.

<p>Bill by residuary legatees, praying an account of the real and personal estate, and to have the residuum paid over. The cause was heard upon the bill, answer, replication and prooís.</p>

<p>A trust of personalty may be created by parol. The statute of frauds, which requires all declarations and confidences of any lands, tenements, and ber-iditaments to be manifested and proved by some writing signed by the party declaring such trusts, or by last will in writing, does not extend to declara" tions of trusts of personalty.</p> <p>Where there is no substantial variance between the trust alleged in the bill, and that proved, the trust, as proved, will be established and enforced.</p> <p>Although the accounts to be taken involves an account of the property of a decedent, and of her debts, if it appears by the proofs and admissions of the parties that all the property came to the possession of the defendant, that the debts have been paid, and that no person is interested in the estate but the parties to the suit, it is not necessary to have a personal representative of the decedent before the court as a party.</p>

<p>Where mortgaged premises are sold by the mortgagor in parcels to various purchasers, at different times, there can be no contribution among the purchasers. The older purchasers and their shares are exempt, until the younger ones and their shares shall have responded to the claim; and they must answer, respectively, in the order in which they have purchased, beginoing with the youngest purchaser and ending with the oldest.</p> <p>This order .is to -be-observed, unless there are .peculiar circumstances affecting the rights ofparties, to chango the rule.</p>

<p>On motion for Injunction and appointment of receivers.</p>

<p>Bill for the foreclosure of a mortgage given by a citizen of New Jersey, upon lands in said state, to a citizen of New York. The answer sets up usury as a defence. The facts relied upon to sustain the defence are fully stated in the opinion of the mas ter. The chancellor having been of counsel for one of the parties, the cause was heard upon the pleadings and proofs, bo fore Philemon Dickerson, esquire, one of the masters of the court, who was called to advise with the chancellor upon the hearing.</p>

The complainant’s bill is to foreclose a mortgage executed to him by Henry E. Broadhead, trustee, one of the defendants. Three of the defendants have filed a plea alleging the pendency of a former suit. The plea was set down for hearing by the defendants.

The cause was heard on the twenty-sixth of September, 1834', upon motion for an injunction and ne exeat on the bill' filed. It appeared by the bill that the complainants had agreed to purchase a lot’ of land of the defendant, in the county of Essex, and had paid one half the purchase money, and been let into possession.

This cause was heard before the chancellor at April term, 1834, upon a motion to dissolve the injunction, on the answers of the defendants. The motion to dissolve the injunction was denied, and receivers were appointed. Testimony was taken by both parties, and the grantor and grantees in the deed of assignment, three of the defendants, were examined on the part of the complainants, under an order of the court obtained for that purpose.

<p>A widow entitled to dower lias a right to her bill in equity to redeem a mortgage which is an encumbrance upon her rights. She is entitled to dower in an equity of redemption.</p> <p>A woman marries a man whose estate is encumbered by mortgage, or she joins with her husband in the execution of a mortgage; in either case she may have her bill to redeem, and her dower assigned her.</p> <p>But she cannot file a bill to redeem a mortgage, and call the mortgagees to account for the rents and profits where the mortgage is not an encumbrance upon her dower right, as when the mortgage was executed during coverture, and she was not a party to it.</p>

<p>The rule, that upon a denial by the answer of the equity of the bill, the injunction must be dissolved, is a general rule, to which there are exceptions. There must, however, be something characteristic in the case to make it an exception to the rule. If the answer denies the equity of the bill, the injunction should be dissolved, unless the case exhibits some feature which shows there is strong probability, at least, that the ends of justice will be better answered by its continuance.</p> <p>That the continuance of the injunction will work a great injury to the complainant, has great weight with the court in the consideration of the question, whether the injunction should be continued.</p>

<p>Appeal from a decree of the orphans’ court of the county of Burlington, admitting to probate a paper -writing purporting to be the last will and testament of Franklin B. O. Budd, deceased. Rule to show cause why the appeal should not be dismissed. The grounds relied upon in support of- the rule, are stated in the opinion of the ordinary.</p>

<p>This was an information filed by the attorney general of the state of New-Jersey, in behalf of the state, at the relation of Luke Davis, John Caldwell, Robert Baldwin, John Williams, Abraham Cadmus and James R. Mills, for and on behalf of themselves, and the rest of the owners of property in the town of Newark and on the banks of the Passaic river, to compel the defendants to abate a public nuisance created by them by the erection of the railroad bridge across the river Passaic, at New-* ark. The material charges contained in the information are stated in the opinion of the chancellor.</p> <p>The prayer of the information is, that an injunction issue restraining the defendants from doing any further work in, upon, or about the said railroad bridge, and that the said work be stopped until the further order of the court, “and that-the defendants be decreed to obviate and abate the said nuisance, and that the said Passaic river be restored to that condition that its usefulness be no longer impaired.”</p> <p>The cause was heard upon a motion for the allowance of an injunction, upon notice to the defendants and service of a copy of the information. Affidavits ex parte were taken by the parties and read upon the hearing.</p>

<p>If to protect his possession, the tenant is compelled to purchase in outstanding mortgages upon tho property, a court of equity will protect his equitable title, and his possession under it, until the mortgage money is repaid.</p> <p>After the defendant has answered the bill, and depositions have been taken, and the cause brought to a final hearing upon its merits without objection, it is too late for the defendant to raise the objection, that the cause ought not to have been removed from a court of law into this court, where this court has jurisdiction by the parties and the subject matter of the controversy.</p> <p>If a mortgagee has possession under his mortgage, by himself or tenant, for more than twenty years, the equity of redemption of the mortgagor is barred by the statute. Nixon's Dig. 436, § 12.</p>

<p>if the purchaser of real estate gives to tho vendor a mortgago for part of tho purchase money, and then sells the equity of redemption in tho mortgaged premises ; npon a hill filed to foreclose the equity of redemption against the present owner, a conrt of equity will not enfore the specific performance of an agreement made by the mortgagee with an intermediate owner, nor permit the defendant to set off the damages sustained by the present owner by reason of the breach of such agreement, against the amount due on the mortgage.</p> <p>The time specified for the payment of a bond may be enlarged by parol.</p>

<p>The daughter of the complainant conveyed to the defendant, who is the son of the complainant, ninety-nine acres of land, in. trust, for the complainant, to take the rents during her coverture, and so as the same should not be liable to the debts of her husband, nor in any Way subject to his disposal, direction, or control; and after her husband’s death, then to the sole use of the complainant, her heirs, &c., for ever. The complainant, upon the defendant’s solicitation, executed to him a mortgage on the trust property to secure $700, a debt of the husband. Held, that the mortgage was void — first, because a married woman could not execute a deed, except jointly with her husband; second, because such a mortgage, under the circumstances, was a violation of the trust.</p> <p>After the death of the husband, and while the defendant held the legal title, the $700 mortgage was cancelled, and the complainant executed to the de fendatit another mortgage, of $1200. Held, that in case of a mortgage executed under such circumstances, a court of equity will require the mortgagee to prove the consideration of his mortgage.</p> <p>The circumstances stated under which a court of equity will hold a mortgage, taken by the trustee from his cestui que trust, invalid.</p>

<p>The bill was filed by parties claiming title under a sheriff’s sale, made by virtue of a judgment rendered on an attachment against an absent debtor, to avoid a conveyance made by the debtor previous to the issuing of the writ of attachment, and also a subsequent conveyance from the grantee of the debtor, as fraudulent. The facts relied upon to sustain the charge of fraud, appear in the chancellor’s opinion. Answers wore filed by the defendant in attachment, the original grantor, and also by the parties claiming title under his grantee at the time of filing the bill. The cause was heard upon the pleadings and proofs.</p>

<p>if the purchaser of a mill-seat and water-power accepts from the vendor a deed, without any covenant for his protection, as to the height of the dam, or the extent of the flow to which he is entitled, and the purchaser is subjected to damages by reason of the improper height of the dam, he is without remedy either at law or in equity.</p> <p>If it was designed by the parties that a deed should contain covenants, and they have by mistake been omitted by the scrivener, the mistake will be corrected by a court of equity, and the deed reformed accordingly.</p> <p>if the deed contain full covenants of warranty as to the height of the dam, and the covenants are broken, a court of equity will not injoin the vendor from proceeding at law to recover the purchase money, nor set off the damages sustained by the vendee by the breach of such covenants against the claim of the vendor for the purchase money, but will leave the parties to their remedies at law.</p> <p>'There is no mode in which the damages sustained by the breach of such covenants can be satisfactorily ascertained in a court of equity.</p> <p>A court of equity can interfere to set off- the damages sustained by the ven dee by breach of the covenants in his deed, against the claim of the ven dor for the purchase money, only where the covenants are such that the damages resulting from the breach can be ascertained according to the practice of the court.</p>

<p>A defendant may claim the benefit of the statute of frauds, &c., notwithstanding he admits, in his answer, the parol agreement; but if he does not, in his answer, claim the benefit of the statute, he waives it.</p> <p>Possession under the agreement, and part payment of the purchase money while in possession, take the case out of the operation of the statute.</p> <p>An immaterial variance between the agreement alleged in the bill, and that admitted by the answer, will not prevent a decree for specific performance.</p> <p>Although the complainant may be in laches, if satisfactorily accounted for, they will not defeat his right to a decree.</p>

<p>The complainant can recover only upon the case made by his bill. The allegata and probata must correspond*</p>

<p>The bill in this cause was filed to enforce the specific per» formance of a contract for the purchase of certain real estate, sold at public sale by the administratrix of Abraham Pittenger, deceased, by virtue of an order of the orphans’ court of the count}’ of Somerset, and purchased by Cornelius Pittenger in bis life time. The purchaser refused to accept the title or to pay the purchase money. An answer was filed by the administratrix, admitting the sale, but insisting that it was illegal and fraudulent. The particular grounds of defence appear in the opinion •of the chancellor.</p> <p>The cause came on for hearing upon the pleadings and proofs.</p>

<p>The hill alleges that Aaron L. Smock, of the county of Monmonth, was at the time of his death seized and possessed of real and personal property in Monmouth county, where he died, of the value of about $20,000; that on the 31st day of August, 1836, he made his will, executed in due form of law. By this will, the decedent makes provision for his wife and four daughters. He devises and bequeaths to liis son Aaron all his estate, real and personal, except what is otherwise disposed of in and by the said will, subject to his wife’s right of dower, and subject, also, to the payment of the legacies and bequests in said will made to his daughters and grandchildren, charging the real estate so devised to his son Aaron with the payment of the said legacies. The will concludes as follows: “ Having heretofore made advances to my sons Ira Smock and Hendrick Smock, who is now deceased, amounting to what I intended they should have of my estate, is the reason that I have made them no bequest or devise in this my last will and testament.” The bill alleges that, after the will was executed, the decedent took possession of the said will, and laid the same away in his secretary, or writing desk, in his dwelling house, where it was kept by him, and remained until after his death, with the endorsement “ Barnes B. Smock’s will,” in the handwriting of Henry D. Polhemus, a counsellor at law, who drew the will. The bill further alleges that, after the execution, he frequently spoke of this will and its contents; that he died on the 20th of September, 1854, and that during his last illness and the preceding summer, he alluded to this will, speaking of it as having been made; that for the last ten days or two weeks of his illness, he was so low and sick that .he could not get out of his bed, and that within that time he spoke of this will to one Logan Bennet, who was with him’from the commencement of his sickness till his death, and said that the will was in his desk, and that it was all right. The bill further states, that two days after the death of decedent, and on the day he was buried, after the funeral, the complainant, his mother, and brother Ira were looking over the papers in the desk for the will, and the same was found in one of the small drawers of the the desk wrapped up in a newspaper, a copy of the Fredonian of August 5th, 1846; and the said will was opened, and the said Ira commenced reading the same, and shortly afterwards it was discovered that some person had attempted to mutilate the same, by cutting off, with a pair of scissors or other sharp instrument, a part of the name of the said Barnes B. Smock, to wit, all of the signature except the capital B in Barnes. The bill charges, that some person or persons, other than the testator, and without his knowledge or consent, either shortly before his death, or after his death, and before the same was opened and read by the said Ira Smock as aforesaid, fraudulently, surreptitiously, and clandestinely defaced, cut, and injured the said will, intending to spoliate and unlawfully destroy the same, and so that, upon the production thereof for probate, there might be difficulties and doubts arising in refereime to the same. The bill further states, that the desk where the will was found was never kept locked, and that the family had at all times free access to the room where the desk was, and that there was not, at any time during the decedent’s sickness, or after his death, anything to prevent a person, so disposed, from getting possession of, and secretly mutilating the will. The bill further states and. shows, that the said Barnes B. Smock was eighty years and three months old when he died; that he lived on his homestead farm, where he died, for a large portion of his life, which homestead is devised in and by his said will to the complainant; that said Barnes B. Smock, some sixteen years ago, when his son Hendrick married, conveyed and advanced to him a farm, valued at about $15,000, and took upon it, for a part of said amount, a mortgage of $6500, which mortgage was afterwards assigned to the said Ira Smock, another son of said Barnes, and was an advancement to him, the said Ira, and that there was advanced afterwards to said Ira some $3000 more. The bill further states and charges, that there were some advancements made, also, to Eleanor Conover, a daughter, and to Ann, another daughter; that the complainant always lived at home and labored on the farm, and expended all his time, labor, and energy for the benefit of the farm and estate of his father, and has never made or had any separate accumulation of property, and has never been advanced by his father, and has known for many years that his father intended that he should have the homestead farm, and that there was no estrangement of feeling between his father and the complainant; that the disposition of the estate in and by the said will is in accordance with the frequently expressed intentions of the said Barnes B. Smock. The bill further states, that the complainant and his family lived with his father, and that the complainant’s sister, Williampe, was also a member of the family; that Williampe became estranged from the complainant, and exhibited unfriendly feelings towards him, and that she, both before and after her father’s death, had free access to the desk in which the will was deposited. The bill further shows, that at the time of the death of said Barnes B. Smock, he left surviving him Lydia Smock, his widow, and the following children : Eleanor Conover, widow of Jacob IT. Conover, deceased, the eldest child, the complainant, the oldest son and second child, Williampe Smock, the third child, Ann Blauvelt, the fifth child, and then the wife, hut now widow of Dr. Charles C. Blauvelt, since deceased, and Ira Smock, the sixth and youngest child, and also a granddaughter, Lydia Ann Smock, about the age of fourteen years, the daughter and only child of Hendrick Smock, the fourth child of the said Barnes B. Smock, which said Hendrick died some twelve years before his father. The bill prays that the said will may be proved and established under the authority of this court, and prays other specific relief, with a prayer for general relief.</p> <p>To this bill Lydia Smock, Eleanor Conover, Williampe Smock, and Ann Blauvelt filed a joint and several answer. They admit the property left by the decedent at his death, but allege it was worth more than $22,000, and in their opinion was worth about $30,000. They say, it may he true that the paper writing in question was executed by the decedent as his will, as stated in the bill, but they were not present at its execution, and had no knowledge or information of the same; they therefore leave the complainant to prove it. They deny that they knew of the alleged will’s being in the desk, or in the house of the decedent; they allege and say, that they had never seen the same, and did not know it was in existence until after it was found, as stated in the bill. They further say, that they did not know that the decedent ever informed any one of the contents of the said writing; that he never spoke to them as to the contents of the same, and that he never informed any one of the contents of the same in their presence; they deny that the decedent, during his sickness, or during the summer immediately preceding his sickness, spoke to any one of his will being in existence, or as to what was his determination in respect to the disposition-of his property; they allege that the said Bennet has repeatedly stated the conversation the defendant had with him differently from what is alleged in the complainant’s bill; they allege that the decedent himself cancelled the will, and that he died intestate; they allege that the said decedent, when he desired to destroy any paper having his name to it, was accustomed to do so by cutting his name therefrom, and preserving the paper so cut. The answer admits the advancements to his sons, Hendrick and Ira, as stated in the bill. The answer further states, that although the complainant had lived on the homestead farm with his father for many years, that he had the farm upon shares, and received his share of the proceeds and profits from the same, according to an agreement between himself and his father, and that from his want of energy and labor his father derived but little benefit from his labor; they deny that the devise and bequests to the complainant in the alleged will are in accordance with the expressed intentions of the said Barnes B. Smock for a considerable time before his death; and they allege, that repeatedly, during the two years immediately preceding his death, he declared to various persons his dissatisfaction with the complainant, and evinced a growing distrust of the complainant, as to his interest in the welfare of himself and the family, and his want of confidence in the ability of the complainant to manage a farm so as to make a living upon it, and declared, if he ever had a farm, he would be unable to keep it; they say, from the repeated declarations'of the decedent, that for a considerable time before his death it was not his wish or intention that the complainant should have his real estate. The defendants, each, separately deny all knowledge of the existence of the alleged will, of its being in the desk as stated, or of its being mutilated, until it was produced.</p> <p>Ira Smock answers separately, and his answer is a full denial of all knowledge that such a will was in existence, and all knowledge as to who cut and mutilated it.</p> <p>The answer of Ann Smock, by her guardian, is also a denial of all knowledge of the alleged will, or of its mutilation.</p>

Bill for the specific performance of a covenant made by Enoch G.Treeland,the father oftbe defendant,with the complainants, to grant and convey to them so much of bis homestead farm as their road should occupy, upon condition that the said road should be located upon a certain route. The agreement bears date on the twenty-first day of July, eighteen hundred and sixteen. The bill of complaint was filed on the seventh day ol October, eighteen hundred and thirty-nine.

Bill filed the twenty-ninth of September, eighteen hundred •and twenty-six, for a legacy bequeathed by Eobert Taylor, late of the county of Hunterdon, deceased, in and by a codicil to his last will and testament, bearing date on the thirtieth day oí August, eighteen hundred and twenty-one.

<p>The hill alleges that, on the first day of September, 1853, a verdict was rendered in the Supreme Court of New York, at the suit of Susan Mary Jay cocks, against Susan Eberhart, then a feme sole by the name of Susan Ayres, and that on the 7th day of November, 1853, and before judgment was entered on the verdict, the said Susan became the wife of John Eberhart, and that after-wards, on the 13th of August, 1854, judgment was entered on the verdict for $650 damages and $264 costs. The bill then charges that John Eberhart was joined in the said judgment only for the sake of form. The bill further shows that, on the 9th of October, 1854, another judgment was obtained in the Supreme Court of the state of New York against John Eberhart and wife, at the suit of the same Susan Mary Jaycocks, for $400 damages, and; $69.84 costs, for liabilities of the said Susan Ayres, incurred before her intermarriage with John Eberhart; that on the 18th of July, 1853, before said intermarriage, and before obtaining either of said judgments passed a law, as follows: Passed July 18th, 1853.</p> <p>“ The people of the state of New York, represented in the senate and assembly, do enact as follows:</p> <p>§ 1. An action may be maintained against the husband and wife, jointly, for any debt of the wife contracted before marriage, but the execution on any judgment in such action shall issue against, and such judgment shall bind the separate estate and property of the wife only, and not that of the husband.</p> <p>§ 2. Any husband who may hereafter acquire the separate proj)erty of his wife, or any portion thereof, by any ante nuptial contract or otherwise, shall be liable for the debts of his wife contracted before marriage to the extent only of the property so acquired, as if this act had not been passed.”</p> <p>The bill then alleges that, on the 23d September, 1854, the said John Eberhart and wife, then residing in New York, the said Susan Jaycocks caused an attachment to be issued out of the Circuit Court of the county of Hudson, in the state of New Jersey, against the rights, &c., of the said John Eberhart and wife, and thereby attached certain lands in Jersey City; that the property so attached was the property of John Eberhart, and was his property before his marriage with his present wife, and that, by the laws of the state of New York, where the. parties in said suits resided, the property of the said John Eberhart was exempt from the payment of the said judgments.</p> <p>The bill states that judgment was entered upon the said attachment, on the 15th of October, 1855, for §1476.23; J. E. is not much acquainted with the English language; that during the issuing and conducting the said attachment, he and his wife lived in the city of New York, that the plaintiff in the suit knew this; that notice of the attachment was published in a newspaper published in Jersey City only, and that the said J. E. never had any notice of the said attachment; that at the time of issuing said attachment, J. E. had a large amount of property in the city of New York, more than sufficient to satisfy said judgment obtained in Now York, and that the plaintiff knew the fact; that he, on the 14th February, 1856, sold the said lauds in Jersey City to one It. G-., for a price much less than the value thereof, to wit, about the sum of §1500, which is a grossly inadequate price, when in fact said property was worth §5000.</p> <p>The bill prays for injunction to restrain the delivery of a deed to the purchaser, and from the sale of other property under the attachment.</p> <p>The injunction was applied for upon notice to the defendants, and on the hearing the bill was before the Chancellor, and also one affidavit on part of defendants, which was read without objection.</p>

<p>An injunction issued to restrain proceeding in attachment against a non-resident debtor, for the recovery of a judgment debt, at the instance of the defendant in attachment, will be dissolved, unless the amount of the judgment be deposited with the clerk of this court before issuing the injunction.</p> <p>The statute declaring that an injunction shall not issue to stay proceedings at law in any personal action after judgment, unless the amount of the judgment, with costs, be first deposited with the clerk of the court by the applicant for the injunction, if he be a defendant in the said proceedings at law, is not limited to proceedings in the .same suit.</p> <p>The meaning of the statute is, that a party who has obtained a judgment shall not be stayed" or hindered in any suit or proceeding he may institute for the recovery of it, unless the amount -of the judgment be first deposited with the clerk of the court.</p> <p>Chancery will not relieve against a judgment at law, on the ground of its be. ing contrary to equity, unless the defendant in the judgment was ignorant of the fact' in question pending .the suit, or it could not have been received as a defence, or unless he was prevented from availing himself" of the de. fence by fraud or accident, or the .act of the opposite party, unmixed with negligence or fraud on his part.</p>

On tbe fourth of January, eighteen hundred and forty-two the complainant filed her bill of complaint against the defendant, her husband, for a divorce from bed and board, on the ground of extreme cruelty and neglect, and also for alimony and support for herself and her children.

<p>A. E. disposed of the residuum of his estate by will, as follows: “ It is my will that the residue of my estate be distributed as follows, viz. one fifth to E. B. E., wife of my son W. B. E., in trust for the use of my said son W. B. E., subject to the deduction of $500, paid by me for the use of said W. B. E. at various times; one fifth to C. M. E., wife of my sou H. E., in trust for the use of said H. B. And in case of the decease of my said son, H. E , before my twin sons J. B. E. and 8. B. E. arrive at the age of twenty-one years, and leaving no child or children living, it is my will that said distributive share, so held iu trust for his use, be divided equally between my surviving children, said share to be subject to the like deduction of five hundred dollars, paid by me for the use of my said son, H. E., at various times."</p> <p>Held, that the trust fund paid to the trustee of W. B. E. was liable for his debts, and that upon a creditor’s bill the trustee must account, and that the executors must account for funds not paid over.</p> <p>Quere. Whether the interest of the fund in trust for H. E. is liable for his debts 1</p>

<p>Bill filed tenth of July, 1832. The bill states, that the complainant attained the age of twenty-one years on the twentieth day of May, 1828; that his father, John Van Winkle, died many years previous thereto, in the life-time of the complainant’s paternal grandfather, Cornelius Van Winkle. That the said Cornelius Van Winkle, at the time of making his will, and at the time of his death, was seized and possessed of a valuable real and personal estate in the counties of Essex and Bergen, in this state. That the complainant’s paternal grandmother, the wife of the said Cornelius Van Winkle, was also seized in her fife-time, and at the time of her death, of a large and valuable real estate in the county of Bergen. That upon her death, which happened in the life-time of her husband, the said Cornelius Van Winkle, the same descended to her heirs at law in such shares and .portions as the law of descents then in force in this state prescribed, subject -to the life estate of the said Cornelius Van Winkle, as tenant by the curtesy. That the said Cornelius Van Winkle and his wife, the grandfather and grandmother of the complainant, had four children, viz.: John, the father of the complainant, who died in the life-time of his father, leaving the complainant his only child and heir at law; Walling, who also died in the life-time of his father, leaving a son, Cornelius, his only child and heir at law, who is still living; Tiney, the wife of Adrian Van Houteo, and Jane, the wife of Stephen Baker, both of whom, with their husbands, still survive.</p> <p>That on the first day of January, A. D. 1814, the said Cornelius Van Winkle, the grandfather of the complainant, made and published his last will and testament, in due form of law to pass real estate, in the words following, to wit:—</p> <p>“ In the name of God, Amen. I, Cornelius Van Winkle, of the town of Paterson, in the county of Essex, and state of New-Jersey, finding myself advancing in the decline of years, and being in bodily health and of sound and disposing mind and memory, do make and publish this as for my last will and testament. That is to say: First, I do will and direct that all my just debts and the expenses of my funeral, be paid by my executors as soon as conveniently may be after my decease.</p> <p>“ Item : 1 do give and bequeath to my grandson, Cornelius Van Winkle, the son of my son Walling Van Winkle, deceased, the sum of one hundred and fifty dollars, to be paid to him at the expiration of each and every year after my-decease, until he arrives at the full age of twenty-one years, by my executors. I do also give and bequeath to my said grandson Cornelius, if he lives to be twenty-one years of age, the sum of five thousand dollars, to be paid to him by my executors as follows: that is to say, the one half thereof in six months after he arrives to the age of twenty-one years, and the other half thereof in one year after he arrives to the age of twenty-one years.</p> <p>“ Item : 1 give and bequeath to my grandson, John Van Winkle, the son of ray son John Van Winkle, deceased, the-sum of one hundred and fifty dollars annually, until he arrives at the full age of twenty-one years. The first sum to become due at the expiration of one year after my decease, and after he arrives at the age of fourteen years, which sum is to be annually applied by my executors after it becomes due, towards the education, maintenance and support of my said grandson John, until he arrives at full age, when the same is to cease. On the death of either of the above named grandchildren before he arrives at the age of twenty-one yearsr the annuity above given to him is to cease. Item : T do give to my said grandson, John Van Winkle, the son of my said son, John Van Winkle, deceased, if he lives to be twenty-one years of age, the sum of five thousand dollars, to be paid to him by my executors, the one half thereof in six months, and the other half thereof in twelve months, after he arrives to the full age of twenty-one years.</p> <p>“ Item: I do give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, wheresoever and whatsoever nature and description the same may be, to my two daughters, Tiney, the wife of Adrian Van Houten, and Jane, the wife of Stephen Baker ; to bo equally divided between my said two daughters, share and share alike; to have and to hold the same to them, their heirs and assigns, for ever.</p> <p>“And whereas my wife, Anna Van Winkle, died seized of, or entitled to, a considerable real estate situate in the township of Saddle River, in the county of Bergen, which she desired should be equally divided between my two daughters above named, now my will is, that if either of my above named grandsons shall refuse to release to my said daughters, and to their heirs and assigns for ever, all his right, title and interest, of, in and to the said real estate, that is, the one moiety thereof to my daughter Tiney or her heirs, and the other moiety thereof to my daughter Jane or her heirs, if requested so to do by my executors or either of them, or by my daughters or their heiis or either of them, within six months after my said grandsons shall respectively arrive at the full age of twenty-one years ; then I will that the sum of fifteen hundred dollars shall be deducted from the legacy given to such grandson as shall refuse so to release, to be taken from the first payment directed to be paid to him after he comes of age; which sum I desire shall, go to my daughters, with the residuary part of my estate.</p> <p>“ Item : I will that in case either of my said grandsons shall die without leaving a child lawfully begotten living at the time of his death, that then and in such case the portion which I have-directed to be paid to such grandson, or such part as remains unpaid, shall be equally divided between my two daughters and' my surviving grandson ; but if he leaves a child or children lawfully begotten, then such child or children to take it on the same condition the father did.</p> <p>“And lastly, I do hereby nominate, constitute and appoint, my two sons in law, to wit, Adrian Van Houten and Stephen Baker, executors of this my last will and testament; hereby revoking all former wills by me made, and ratifying and confirming this to be my last will and testament.</p> <p>“ In testimony whereof, I have hereunto set my hand and seal, this first day of January, in the year of our Lord one thousand eight hundred and fourteen.”</p> <p>The bill further states, that after the death of the said testator, the said Adrian Yan Houten and Stephen Baker, the executors therein named, proved the said will, and took upon themselves the burthen of the execution thereof) and that they, or one of them, paid and applied to the complainant’s benefit, the sum of one hundred and fifty, dollars annually during his minority, as directed by the said will. That some time after the complainant came of age, the said Stephen Baker paid to the complainant the sum of two thousand five hundred dollars, being the one half of the said legacy of five thousand dollars, so as aforesaid bequeathed to him; whereupon the complainant released all his right, title and interest in and to the lands and real estate of his said grandmother, to her daughters, the said Tiney Van Houten and Jane Baker, as directed by said will; or eke the complainant released to the said Jane Baker one moiety of all his right, title and interest of, in and to the said lands; or executed some writing agreeing to execute such release upon receiving the whole amount of the said legacy of five thousand dollars; and if the instrument thus executed and delivered to the said Stephen Baker, did not amount to a full and sufficient release of all his right, title and interest in and to the said lands of the complainant’s grandmother, he always has been, and still is, willing and ready to execute a full and sufficient release, pursuant to the directions of the will of the said testator. That the said Adrian Van Houten paid to the complainant, in the month of December, 1828, the sum of three hundred dollars, and in the month of May, 1829, the further sum of seven hundred dollars, on account of the balance due upon the said legacy of five thousand dollars. That the complainant has never received any payments on account of the said legacy, except as herein before mentioned ; and that there still remains due to him, on account of the said legacy, the sum of fifteen hundred dollars of principal, with a large amount of interest thereon.</p> <p>That the said executors have paid and satisfied to the said Cornelius Van Winkle, the other legatee named in the said will, his legacy in full; and that the said Stephen Baker and Adrian Van Houten have become insolvent, and have severally taken the benefit of the insolvent laws of this state. That a large amount of the personal property of the said testator, and much more than sufficient to pay all his debts, came to their hands, as his executors, and as legatees or devisees in remainder, in right of their wives, respectively ; but that the personal estate and property of the said testator, was not sufficient to pay all his debts and ail the legacies given by his will; and that the complainant has no means of recovering from the said executors, or from either of them, the balance due on the said legacy; but the complainant is advised and charges, that the said legacy is a charge upon the lands and real estate of the said testator, so as aforesaid devised by him to his daughters, the said Tiney Van Houten and Jane Baker. That the said lands and real estate are of great value,, and much more than sufficient to pay the whole of the said legacies,, besides the lands and real estate of the complainant’s grandmother, which the testator by his will directed to be released-by the complainant and the said Cornelius-Van Winkle, in manner aforesaid.</p> <p>The bill further states, that the said Stephen Baker and Adrian-Van Houten, with their respective-wives, made partition between them by mutual releases or otherwise, as well of the lands and real estate of the said testator, as of the lands and real estate of the complainant’s grandmother; and that since the-said partition,. the said- Stephen Baker and his wife have, at different times and to sundry persons, alienated or incumbered the whole of bis wife’s share of the said lands ;- but when, in what parcels, to whom,.and for what considerations, is unknown to the complainant,, and the said Stephen Baker refuses to discover and make the same known to the complainant-. That the said Adrian Van Houten has also, at different times-and to sundry persons, sold and conveyed parts and parcels of the said veal estate that fell to the share of his wife, or has charged or incumbered the same by mortgages, judgments or otherwise, but to whom, when,, and upon what consideration, is unknown to the complainant; except that he has heard, and believes it to be true, that on or about the eleventh day of January, 1826, the said Adrian Van Houten and Tiney his wife, executed a mortgage upon a part of the real estate of the said testator, situate at Paterson, to one John J. Ackerman, since deceased, to secure the payment of two thousand five hundred dollars;. and that- on or about the first day of February,- 1826, the said Adrian Van Houten and wife executed another mortgage upon the same land, to one Garrabrant Van Houten, now also deceased, to secure-the payment of the further sum of two thousand five hundred dollars-; and also, that on or about the seventeenth day of March} 1826,. the said Adrian Van Houten alone, without his wife, for the pretended consideration of ten thousand five hundred dollars, sold and conveyed the lands covered by the aforesaid mortgages, together with other lands formerly belonging to the said testator, to the said John J. Ackerman, to have and to hold to him during the life of the said Adrian Yan Houten. That the said John J. Ackerman has since died intestate, leaving Elsie Ackerman his widow, and John J. Ackerman, Peter J. Ackerman, Tiney wife of Tunis Cole, and Rachel wife of Abraham Lozier, his children and heirs at law. That the said Elsie Ackerman has administered upon his estate ; and that the said Peter J. Ackerman has taken an assignment from the administrators of the said Garrabrant Yan Houten, deceased, of the mortgage so as aforesaid given by the said Adrian Yan Houten and wife to the said Garrabrant Yan Houtenso that, as well the said mortgages as the life estate of the said Adrian Yan Houten iu the lands conveyed by him as aforesaid to the said John J. Ackerman, are now held and claimed by the .family of the said John J. Ackerman, deceased.</p> <p>The bill prays, that an account may be taken of the amount still duelo the complainant-upon his said legacy, and that the 'defendants may be decreed to pay the same, with costs, or otherwise that so much of the Lands and -real «state of the said testator, as was devised by him to his said daughters, as will be sufficient for the purpose, may be sold under the direction and decree of the court, to raise and satisfy what may Ire found due to the complainant upon the said legacy ; and that the complainant may ■have -such other relief in the premises as the nature and circumstances of the case may require, &c.</p> <p>To this bill separate answers were filed by Adrian Yan Houten • and Tiney his wife, and by Peter J- Ackerman.</p> <p>Adrian Yan Houten and wife, by their answer, admit most of the material facts in the bill; and state that two thousand five hundred dollars, the one half of said legacy, w;as paid to the complainant by Stephen Baker, at which time the complainant •fully-and absolutely released the said Stephen Baker from all further claims and demands against him on account of the said will. But they deny that the complainant ever released his right, title and interest, of, in and to the lands and real estate which were of the wife of the said Cornelius Yan Winkle, to Tiney Yan Houten and Jane Baker; and although he may have executed such release to the said Jane Baker, for the share to which she was entitled in severalty, yet. these defendants have repeatedly applied to him for a release to the said Tiney Yan Houten, in pursuance of the said will,, which he wholly declined and refused to make ; whereupon notice was given to the complainant, that the sum of fifteen hundred dollars,- beeing the residue of the said legacy remaining unpaid, would be retained for the benefit of the said Tiney Yan Houten, pursuant to the provisions of the said will. They further insist, that the execution of the said release by the complainant, was a condition precedent to the payment of the said legacy, and that having absolutely refused to execute such release to the said Tiney Yan Houten, she is entitled by virtue of the said will to deduct the said sum of fifteen hundred dollars from the legacy of the complainant, and that, the complainant is barred from recovering the same. They further insist, that the personal property of the testator was sufficient to pay the debts and legacies, and that the legacy of the complainant ought to be paid out of the personal estate of the testator, and is no charge upon his real estate. 1</p> <p>Peter J. Ackerman, by his answer, insists that the mortgages upon the said .land, and the sale thereof b}' Adrian Yan Houten to John J. Ackerman, as stated in the complainant’s bill of complaint, were made bona fide, for a full and valuable consideration ; that the said land is not held in trust for the said Adrian Yan Houten ; that he is the bona fide holder, in his own right, of the said mortgages, having received the same by assignment, and also of all the right, title and interest of the said Adrian Yan Houten in the land conveyed by him as aforesaid j and this defendant insists that he holds the same free and clear from any claim to be made by the complainant, and that in equity the said land is not chargeable with the payment of the said legacy, or any part thereof.</p> <p>Replications f,o fhe several answers were filed, and the cause came on for hearing upon the bill, answers, replications and proofs, at a special term held at Paterson, on the eighteenth day of June, 1834.</p>

<p>Priority of registry will not avail against actual previous notice of an unregistered mortgage.</p> <p>One witness, with corroborating circumstances, is sufficient to overcome the defendant’s answer.</p> <p>Where the master has reported tbe amount due upon several mortgages, and also their order of priority, and upon exceptions taken to the report the order of priority is changed, a final decree may be taken at once, without a reference back to the master.</p>

The case was this. The defendant, Eushforth, on the third •of April, eighteen hundred and thirty-five, had given to the •complainant a mortgage for three thousand dollars, on which the complainant advanced two thousand and four hundred dollars, and for the residue, agreed in writing to pay off a prior mortgage on the same premises, given by the person of whom Eushforth purchased, to Stephen Terhune, one of the defendants, on which there remained due six hundred dollars.

<p>The commissioners appointed under the act of 1854 (Pamphlet Laws 235) were authorized by the act of 1855 {Pamphlet Laws 276) to proceed and make the assessments anew. The assessments under the act of 1854 were annulled and made void by the act of 1855, and the commissioners were directed to proceed anew to discharge the duties imposed upon them by the several acts. It was not requisite that they should be newly commissioned for the purpose. Without legislative authority they were functi officio, but it was competent for the legislature to clothe them with all the authority they could derive from a new appointment.</p> <p>The-act not requiring the commissioners to take an oath faithfully to discharge their duties, it was not necessary. If it was requisite, their not having taken the oath is no ground to warrant this court to interfere by injunction.</p> <p>The trustees are authorized, in addition to the amount of assessment made by the commissioners, to raise an amount sufficient to cover and defray the expenses incurred in discharging the duties imposed by the act.</p> <p>To entitle a party to relief by injunction in this court, he must show not only that the act of which he complains is illegal, but that his rights are prejudiced or injured by it.</p> <p>It was not necessary that the inhabitants of Upper and Lower Rahway, Lees-ville, and their vicinity, should give any consent before the trustees were authorized to proceed in the discharge of their duties.</p> <p>By the act of 1854, it is enacted, “ that it shall be lawful for the inhabitants of Upper and Lower Rahway, Leesville, and their vicinity, their trustees, agent, or agents, by this act herein after appointed, at any time after the passage of this act, whenever it shall be deemed expedient by them so to do, to pull down and remove the following dams, or any of them,” &c. The expediency was to be judged of by the trustees appointed by the act, and not by the inhabitants themselves.</p> <p>After the inhabitants have acquiesced in the act of their trustees, it is too late for them to call such acts in question in a court of equity.</p> <p>The legislature have the power to pass an act directing the removal of mill dams, on the ground that they are detrimental to the health of the surrounding country, upon providing just compensation; and they may provide compensation by assessment upon property, and may designate the territory, or land, which shall be assessed for the purpose.</p>

Injunction bill, filed on the eighth of December, eighteen hundred and forty-one.

<p>Where a testator directs his executor to sell certain lands for a particular purpose, until such disposition is made of them, the heir is entitled to the rents and' profits, unless the testator has, by express terms or by implication, otherwise disposed of them.</p> <p>Whoever is entitled to the beneficial interest of the land from the death of the testator until it is sold is entitled to the rents and profits. The heir may have the beneficial interest, because the title is in him, and he has, unless the intention of the testator appear otherwise. If it does, the intention of the testator must control.</p> <p>The particular circumstances of this case stated and considered, under which it was held, that although the testator did not, in express terms, dispose of the rents and profits, they belonged to such of his children for whose benefit the land was subsequently sold by the executor.</p> <p>The testator may, by implication as well as by express words, substitute a person to take the intermediate profits of a real estate descending to the heir pending the contingency of an executory trust.</p> <p>Whoever has possession of the laud during the intermediate period, either as heir or devisee, holds as the trustee of the persons entitled to the beneficial interest, and must account for the rents and profits as such trustee.</p> <p>The testator devised as follows; “I do hereby will and direct my executors, herein after named, to sell at public auction, or otherwise, as to him shall seem best, and for such prices as he shall judge expedient, all the rest and residue of my land and real estate and personal property, wheresoever situate, * * * * and the moneys arising from such sales, with what may be due me at my decease (over paying my debts and personal expenses) and including the two thousand dollars charged on the real estate herein before devised to Abram and James, and the value of the land bequeathed to Lucy, to be distributed as follows.” The testator then names his four sons and four daughters, who had not before been provided for in his will, and gives to each of them the one eighth part of the residuary fund thus in the hands of the executors. The testator died in 3849, and the executor sold in 1851. Held, the four sons and four daughters were entitled to the rents and profits the intermediate time.</p>

The bill of complaint in this cause, was filed on the twenty-eighth day of January, eighteen hundred and forty-two, by Andrew Parsons, a creditor and stockholder of “ The Monroe Manufacturing Company,” on behalf of himself and of all others who should come in and seek relief by, and contribute to the expense of this suit.

<p>A single act of personal violence, standing alone, is not sufficient ground for the court to decree a divorce; but the question is, whether the act was committed under circumstances to furnish a reasonable apprehension that the continuance of the cohabitation would be attended with further personal injury?</p> <p>It is not the amount or degree of personal violence actually used by which the court is governed in forming its judgment, but it is the apprehended danger which the actual violence committed may reasonably excite, against which the court will extend its protection to the injured party.</p> <p>It must be bodily harm, and not mere mental suffering, to answer the language of the statute ; but it is not to punish acts of personal violeuce, actually committed, that the court interferes, but to afford protection from future injury.</p> <p>The court may look at the conduct of the husband towards his wife since the commencement of the suit, for the purpose of giving character to the acts which are relied upon as grounds for the divorce.</p>

<p>The bill alleges, that the Washington Banking company, being owners of the property in question, by a resolution of the board of directors of said company, authorized John De Groot to sell the same on their account. That, as agent of the company, the said De Groot sold the said property on the twenty-fifth of February, one thousand eight hundred and thirty-three, to one Solomons, of the city of New-York, for the sum of seven thousand dollars. That on the sixth of March, one thousand eight hundred and thirty-three, Solomons and wife conveyed the same property to the said De Groot, for the same amount. That the sale was approved by the board, and De Groot took possession, and put repairs on the property to the amount of two thousand dollars, and leased it to Zabriskie and Demarest, the other complainants. That in January, one thousand eight hundred and thirly-four, an injunction issued against the bank, and the defendants were appointed receivers. That, the receivers, without offering to pay back the consideration or make compensation for the repairs, have brought an action of ejectment to recover possession of the property, pretending that the sale was fraudulent and void.</p> <p>Prayer of the bill, that the title of De Groot may be established, or if more just, that the defendants be decreed to repay Mm the purchase money, and all moneys expended for repairs, with interest; that they be injoined from all further proceedings at law, and for further relief, &c.</p>

<p>This bill was filed by a legatee under the will of Richard Ketcham, deceased, for the recovery of a legacy charged upon land, against the devisee of the land, the tenant in possession of the premises, whose wife was also a legatee under the will, and other legatees whose legacies were charged upon the same land. All the material facts disclosed by the bill and answers, appear in the opinion of the chancellor.</p>

<p>To constitute a man a mere agent to act in selling land for another, his authority need not be in writing.</p> <p>What acts amount to acquiescence. They must be such as to prejudice the party who claims the benefit of them.</p> <p>In ordering a partition, this court will impose equitable terms.</p>

This was a bill filed for a legacy. In the will the legatee is called James Hooper Evans, and is described as the son of James Evtms, a nephew of testatrix. It is proved there was but one ¡nephew, viz. James Evans; that he lived in the house with testatrix ; that a child of this nephew, whose name is John, was a .favorite of the testatrix; and that the nephew had no other son, nor any other child, save John, the complainant.

<p>On motion to dissolve.</p>

<p>On a bill filed by an heir, to avoid the deed of his ancestor, it is necessary that all the heirs of the grantor should be parties to the bill.</p>

<p>This was a bill by an execution creditor, to obtain relief against a prior execution as collusive and fraudulent, and to restrain the sheriff from making sale by virtue of such prior execution. The debtor, the prior execution creditor, and the sheriff, were made defendants. An injunction issued, pursuant to the prayer of the bill. Clevenger, the debtor, filed no answer, and a decree pro confesso was taken against him. Wilkinson, the prior execution creditor, having answered the bill, moved to dissolve the injunction upon the answer. The cause was heard upon the motion to dissolve the injunction.</p>

<p>This cause came on for hearing upon an application of the' Trenton Banking company, the complainants in the original bill, foi the appointment of a receiver to take the rents of the-mortgaged premises; or, on the failure of that motion, for the dissolution of an injunction which had been allowed on the prayer of the cross bill, to restrain them from' proceeding at law to recover possession of the premises. The material facts are stated in the opinion of the chancellor.</p>

<p>Where the vendor agrees to convey a farm “said to contain one hundred and' thirty-five acres, be the same more or less,” and the deed executed in pursuance of the agreement describes the land by courses and distances, and adds, “ containing one hundred and thirty-five acres, be the same more or less,” if there proves to be a deficiency of over twenty acres in the quantity of land actually conveyed, the purchaser, upon a bill filed by the vendor for the foreclosure of a mortgage given to secure a part of the purchase-money, will be entitled to have an abatement or compensation for the deficiency in the quantity of land.</p> <p>Under such circumstances the court will not first direct the land to be sold, to ascertain whether it will not, at the reduced quantity, bring the price at which it was sold.</p> <p>Where land is sold as containing so many acres, more or less, if the quantity on an actual survey and estimation, either overrunning or falling short of the contents named, be small, no compensation should be received by either party : the words ‘ ‘ more or less, ” must be intended to meet such a re-suit; but if the variance be considerable, tho party sustaining the loss should be allowed for it, and this rule should prevail when it arises from mistake only, without fraud or doception.</p> <p>And it seems that the rule applies although the land is not bought or sold professedly by tho acre, tho presumption being that in fixing the price regard -was had to the quantity.</p> <p>If the purchaser know the true quantity at the time of his purchase, or there are words used clearly indicating the intention of both parties not to be governed in the sale by the amount of land, the purchaser will not be entitled to relief.</p> <p>It is not a sufficient objection to allowing an abatement of the price, that the contract has been executed.</p> <p>If a case be once properly before the court, the court will do all in its power to settle the rights of all the parties in the matter in controversy, justly and equitably by one decree.</p> <p>The fact that the purchaser lives near the land and sees it daily, can have no bearing on the question, nor can the doctrine of caveat emptor have any application. A purchaser has a right to rely upon the vendor for the number of acres, and may place implicit confidence in his statements.</p> <p>Where the deficiency in the quantity of land sold, is ascertained by th« vendor between the execution of tho contract of sale and the delivery of the deed, he is bound to make it known to the purchaser; and with a knowledge of the deficiency, to deliver a deed to the purchaser for a greater number of acres than the tract contains, without disclosing the truth respecting it, is a palpable fraud.</p>

<p>Bill for injunction and relief, filed November twelfth, 1834. The object of the bill is to avoid and set aside a sale of the compfaiuant’s real estate, made by virtue of an execution issued' out of the supreme court of this state, at the suit of one John H. Dis-borough, against the complainant. The property was sold by Abraham Cruser, esquire, sheriff of the county of Middlesex, on the tenth day of March, 1834, and struck off in two separate parcels, to William Disborough, junior, the defendant in the bill, for the nominal sum of forty-one dollars in the aggregate. A deed in pursuance of the sale, was delivered by the sheriff to Disborough, the pm chaser, on the fourteenth of March, four days after the sale. Declarations in ejectment, in the name of William Disborough, junior, as lessor of the plaintiff, were served upon the tenants in possession of the premises, with notice to appear at the November term of the supreme court. The hill charges, that the sale by the sheriff was fraudulent, and that the property of the complainant, worth at least four thousand dollars, was sacrificed for a mere nominal consideration, to the great injury of the complainant. The bill prays that the sale may be declared void, and that the sheriff’s deed, executed in pursuance of the said sale, may be set aside and delivered up to be can-celled, or that the defendant may be decreed to reconvey the premises to the complainant; that the complainant may he restored in all things to his rights and property as they existed previous to such sale, and that the defendant may be enjoined from further proceedings at law for the recovery of the premises until the further order of the court. An injunction issued, pursuant to the prayer of the bill. The defendant having filed his answer, moved to dissolve the injunction.</p>

<p>An administrator cannot purchase at his own sale, either by himself or through the intervention of another* It is not necessary to prove fraud in order to set aside such a sale in equity.</p> <p>The facts of this case considered, which are held sufficient to establish the fact, that the purchase was made for the administrator, notwithstanding the denial of the answer.</p>

<p>The general rule is, that a trustee cannot bring his suit in his own name, but that the party having the beneficial interest must be associated with him.</p>

<p>On the twenty-second of January, 1834, Brant Van Blarcom and John S. Van Winkle, executors of the last will and testament of Abraham Van Houten, deceased, filed their petition; stating that the said Abraham Van Houten, formerly of the towm ¡ship of Paterson, in the county of Essex, by his last will and ¡testament, bearing date on the sixteenth day of February, 1825, after giving divers legacies and bequests, did give, devise and be.queath as follows, (pro ut state of the case.) That the testator appointed the petitioners executors of his said will, and died about the fifteenth day of May, 1825, leaving tho said will in full force, and also leaving Abraham Van Houten, an infant of the age of about six months, his only child. That the petitioners took up,on themselves the execution of the said will and of the trusts therein contained. That after the death of the testator, the said infant remained in the custody and under the guidance and direction of his mother, Rachel Van Houten, until the month of November, 1832, when the petitioners, by the consent of the said Rachel Van Houten, and in execution of the will of the said testator, took the said infant into their custody, and sent him to school near Newburg, in the state of New-York, where he remained for about six months, when he returned home to his mother in Paterson. That the said school being about to be discontinued, the petitioners resolved to send him to another school in Newburg, which in their opinion was a suitable place for his education, and gave notice of such their determination, and of the time when it would he necessary for the infant to go, to the said Rachel Van Houten, who at her own request superintended his preparations for going to school. That at the time appointed, the petitioners called for the purpose of taking the infant to school, when they were informed that the mother, without consulting the petitioners, and against their will, had removed the said infant from home, and kept him and still keeps him from the custody of the petitioners. The petitioners insist, that by the will of the said testator, they are guardians of the estate of the said infant, and also of his person, so far at least as to have the custody and control of his person for the purpose of educating him according to the directions contained in the will of the said testator. The prayer of the petition is, that the said infant may, by the order of the court, be restored to the custody and guardianship of the petitioners, for the purpose of being educated according to the order and directions contained in the said will,</p> <p>On the eighteenth of March, 1834, the said Rachel Yan Houten filed her petition, stating that Abraham Van Houten, formerly of Paterson, deceased, by his last will and testament, dated the sixteenth day of February, 1835, after divers legacies and bequests, devised as follows, (pro ut state of the case,) and appointed Brant Yan Blarcom and John S. Van Winkle, executors of his said will.. That the testator died on the fifteenth day of May, 1825, leaving Abraham Yan Houten, his only child, an infant then aged about eight months. That the executors proved the will, and took upon themselves the execution thereof. That they collected the rents of the real estate, and the interest upon the bonds and other securities, and that the estate in their hands, belonging to the said infant, is amply sufficient for his support and education. That the petitioner is the mother of the said infant, and has been appointed his guardian by the orphans’ court of the county of Essex. That by virtue of her letters of guardianship, she hath always had the custody of the person of the said infant until the month of October, A. D. 1832, when he was sent to school at Newburg, with the consent of the petitioner. That the executors have paid the petitioner all moneys necessary for his maintenance and education, up to the month of July, 1832, the last payment having been made in the month of October, 1832; since which time, they have refused to pay for the maintenance and education of the said infant, and the petitioner has been compelled to advance a large sum of money out of her own funds for his support and education, which the executors refuse to repay. The petitioner prays that the executors may be ordered to repay the moneys so advanced by her, and also to pay hereafter to the petitioner, as guardian of said infant, for his maintenance and education, such reasonable sum, and in such payments, as may appear just and proper.</p> <p>The matter was heard upon the petitions, and upon the following statement of facts agreed upon by the counsel of the respective parties, to be used as evidence in the case, viz.:</p> <p>“ The will of'Abraham Van Houten, deceased, and the probate thereof by the petitioners., are admitted •, also that letters of guardianship were granted to defendant by the orphans’ court of the county of P’ssex; that Abraham Van Houten died on the fifteenth day of May, 1825, and that he left an only son, by his wife Rachel Van Houten, who at the time of his father’s death was about six months old, and is now the subject of this controversy ; that in the month of November, 1832, Brant Van Blarcom, one of the executors of Abraham Van Houten, deceased, went to Rachel Van Houten and informed her that the executors of Abraham Van Houten, deceased, intended to send the said Abraham Van Houten to some school out of Paterson, for the purpose of educating him as directed by the will of his father, he before that time having been at school in Paterson ; that he must g:o to school either at New-Brunswick, New-Jersey, Caldwell, New-Jersey, or Ncwburg, New-York, at each of which places there was a proper school for him, and that she might choose to which of the three he should be sent; that after some hesitation she expressed a preference to New burg, as a Miss Shultz,who had formerly resided in Paterson and in whom she had confidence, was then about to open a school there, and if he must go to one of the said three places she wished he might be taken there; that accordingly the said Brant Van Blarcom contracted with the teacher of said school for the tuition of the said Abraham ; that he was taken thither by the said Brant Van Blarcom and John S. Van Winkle, and was accompanied by Catharine Van Houten, the daughter of Rachel Van Houten; that he remained there for about six months, at the end of which time he returned to his mother in Paterson, and the cost of his schooling and board was paid by the said executors. About the middle of June, 1833, Miss Shultz having ceased to teach school at New-burg, the said Brant Van Blarcom and John S. Van Winkle, executors, &c. gave the said Rachel Van Houten notice that they should send the said Abraham Van Houten to another school in Newburg on the first day of July then next, which school, on making inquiry, they had ascertained to be a good and proper school for the said Abraham ; that the said Rachel then denied the right- of the said executors to select a school for the said Abraham, or to send him to school, or to guardianship over his pérsort for that purpose, but admitted the necessity of his being sent to school to some proper person, and insisted that she had the right to select said school; that she then wished him to be sent to school at Elizabeth!,own or Caldwell, inasmuch as in case of sickness or accident she would be near him ; that she knew nothing about the school at Newburg except w'batshe derived from the executors, but that the school at Caldwell was a good school.The executors objected to his going to Caldwell and insisted on his going to Newburg, as they deemed it best for the boy, as they alleged; but Mrs. Van Houten told them he should not go to Newburg. ■ That the said executors, on the said first of July, 1833,- went to the house of the said Rachel Van Houten, prepared and for the purpose of conveying the said Abraham to Newburg to school, pursuant to their notice ; but that the said Abraham was not there, but had been conveyed by the said Mrs. Tan Houten to school at Caldwell, Nevv-Jersey, about ten miles from Paterson ;• that this was done without the knowledge or consent of the executors, and that he still continues there and has been there ever since, without the consent and contrary to the wish of the said executors.</p> <p>“ The executors claim, under the will of Abraham Van Houten, the custody of tire person of the child, so far as is necessary to their educating him, and the right of selecting the school and sending him to the school selected by them.</p> <p>“ The said Rachel Van Houten was appointed guardian of the-said- child by the orphans' court of the county of Essex, on the third of July, 1826, and by that authority claims the custody of the child and the right of selecting a school for him, and of seeing him properly clothed and taken care of.</p> <p>“ Since he has been at school at Caldwell the executors have-refused to advance money for the clothing or schooling of the said Abraham Van Houten, on the ground that the custody of the said child for the purpose of education had been withheld from the executors under the said will; the expense of clothing and education, so far as they have been paid, except as herein before stated, have been paid by the said Rachel Van Houten out of her own property.</p> <p>“ It is admitted that the schools at Caldwell and Newburg were, on the first of July, 1833, both good schools, but that at that time the executors knew nothing of the character of either of the schools at Caldwell or Elizabethtown, and Rachel Van Houten knew nothing of the school at Newburg, but that she had the highest recommendation of the school at Caldwell and they the highest recommendation of the school at Newburg.</p>

In this case, a bill was filed on the thirteenth of June, eighteen hundred and forty-two, for an injunction to restrain the sale of certain real estate, levied on' by the sheriff of the county of Sussex,, as the property of the Stanhope Iron Company, by virtue of an execution issued out of the supreme court of this ■state, at the suit of the State of Indiana.

<p>A bond was made with the following condition, that if any default should be made in the payment of the interest, or any part thereof on any day whereon the same should be payable and remain in arrear aud unpaid for the space of thirty days, then and from thenceforth, that is, after the lapse of thirty days, the principal sum of $1000, with all arrearages of interest thereon, should at the option of the obligee or his representatives, become and be due and payable immediately thereafter, although the period limited in said bond or obligation for the payment of the said sum of $1000 might not then have expired. Held, in Baldwin v. Van Vorst, 2 Stockton 577, that time was the essence of the contract, and that the court will not relieve the party in default, unless he can offer some good excuse, as mistake or accident, for such default.</p> <p>Where there is a mistake on the part of the obligee, such as would happen to prudent men, and also where there has been a waiver of the default on the part of the obligor, the court will relieve.</p>

<p>Tlie holder oi' a promissory note, which has come to his hands after maturity, holds it subject to every equity which the drawer or endorser had against the. holder of the note when it fell due.</p> <p>The complainant filed his bill, and obtained an injunction to stay a suit at law against him, as the drawer of a promissory note, upon the ground that it was obtained from him by fraud, and that it had been paid before it came to the hands of the defendant, who received it after maturity. Upon the coming in of the answer denying the fraud, the injunction was dissolved. The complainant proceeded, and brought the cause to final hearing. Held, that as the fraud was not proved, the court would not hold the case for decision upon the other question — whether the note was paid off before it came to the hands of the holder, although if such payment was made, the complainant was not liable to pay the note.</p>

<p>If the mortgagor sells the laud covered by the mortgage in different parcels- and at different times, that portion of the land last sold must first be applied in discharge of the mortgage debt, and if that be not sufficient, then the other portions in the inverse order of the sales.</p> <p>And the same principle applies though the sales in parcels were made not by the mortgagor, but by a person claiming title under him.</p> <p>The rule will not interfere with a special agreement, and if one of the purchasers agree to pay off the whole incumbrance, the contract will be enforced.</p>

In December, 1834, Thomas Gibbons Trumbull conveyed to his father, John M. Trumbull, in fee, 235 acres of laud, at Elizabeth Port, in trust, to be leased until April 1st, 1840, and the rents paid to the said Thomas’s two sisters, A. and 8., and after that date to be sold for the highest price they would bring, the proceeds to be invested, the interest paid to said sisters during life, and to their children after their death, until the youngest child should be twenty-one, and…

<p>"Where one party signs an agreement to do certain acts, after the other shall have performed on his part conditions which are precedent — the conditions being performed, equity will decree a specific performance against the party who signed the agreement.</p> <p>There is mutuality in the terms of such an agreement.</p> <p>"Where one party only is bound by the contract, and nothing has been done under it, will equity decree a specific performance ? — Quere.</p>

<p>Bill by residuary legatees for an account, and for payment of the balance found due, filed June twenty-sixth, 1832. The cause was heard upon bill, answer, replication and proofs. The' material facts disclosed by the pleadings and evidence, are contained in (he chancellor’s opinion.</p>

<p>On petition to set aside sale.</p>

<p>The jurisdiction of a court of equity in cases of waste and nuisance, is of a. preventive character, and comes in aid of the courts of law. It is founded on the necessity created by irreparable mischief, and the inadequacy of pecuniary compensation.</p> <p>Che diverson of a water-course from its accustomed channel, is a nuisance, which, before the nuisance is created, may and should be restrained by injunction. No mere pecuniary compensation will answer the ends of justice.</p> <p>Hie mere denial of the complainant’s right by the defendant, in his answer, will not oust this court of its jurisdiction to interfere by injunction.</p> <p>In cases of doubt, the right should usually be established at law, before the-granting of an injunction.</p> <p>A long enjoyment of a right, will entitle the party to an injuntion to restrain, a private nuisance, even though the defendant may deny the right; and the court will exercise its discretion whether to order a trial at law or not, before granting an injunction — always inclining, if there be reasonable-doubt, to put the case to a jury.</p> <p>Any particular use of water, or diversion from its accustomed channel for twenty years, undisturbed and uninterupted, will raise the presumption of a grant.</p> <p>It seems, too, that as twenty years’ possession will give a right, so a nonuser for the like term will put an end to it.</p> <p>To constitute a watercourse, there must he a stream usually flowing in a particular direction, though it need not flow continually.</p> <p>A hollow or ravine, through which water flows only in times of rain or the-melting of snow, is not, in legal contemplation, a water-course.</p> <p>If a party unlawfully turns a stream of water upon the land of an adjoining-proprietor, no right to the water is thereby conferred, and the wrong doer may divert the water again at any time within twenty years.</p> <p>The diversion of a stream of water, or any part of it, by a complainant, after the allowance of a writ of injunction in his favor, and before the service-of the writ, is an abuse of the process of the court.</p> <p>Costs disallowed to a successful party, on the grounds that his own unlawful1 act led to the controversy, and that great and unnecessary expense was. occasioned by the examination of numerous witnesses.</p>

<p>It is not always the case that, on account of a part performance by one party, the court will feel itself authorized to exercise its jurisdiction in compelling the other party to a specific performance of a parol agreement.</p> <p>A decree of specific performance is not a matter of right. It is a matter of discretion in the court, governed by general rules and principles. As a general rule, the agreement must be binding on both parties; and where it is a mere parol agreement, which one party seeks to make binding, and to enforce against the other party, on the ground of part performance, the performance must be of such a character as will make the agreement reciprocal, and the right to have it performed mutual.</p> <p>Where a party relies upon a parol agreement, he must not only prove the fact of an agreement, but he must establish its terms with certainty.</p>

<p>Although the equity of the bill is not answered, if the continuation of the injunction is a material injury to the defendant, and its dissolution is no present injury to the complainant, or cannot prejudice his rights, the court may. in its discretion, dissolve the injunction.</p>

<p>The complainants filed their bill for the discovery and production of the will of Benjamin Bailey, deceased, and for the establishment of said will. The complainants claim to be devisees under the will, and charge that the will was destroyed after the testator’s death.* Actions at law having been instituted by the defendants for the recovery of part of the devised premises, application was made for an injunction to restrain proceedings at law. The cause was heard upon motion for the injunction. The chancellor having been concerned as counsel for one of the parties, the matter was referred to Elias Vanarsdale, esquire, one of the masters of the court, before whom the motion was argued.</p>

<p>A purchaser is not bound to take notice of the record of a deed executed by a prior grantee whose own deed has not been recorded.</p> <p>•The title upon the record is the purchaser’s protection. The registry of a deed ' is notice only to those who claim through or under the grantor by whom the deed was executed. Where one link in the chain of title is wanting, there is no clue to guide the purchaser in his search to the next succeeding link by which the chain is continued.</p> <p>Where the deed of a vendor is not recorded, the record of a mortgage given by his vendee for the purchase money will not be notice to a subsequent purchaser.</p> <p>Actual payment of the purchase money is, in general, necessary to the character of a bona fide purchaser for a valuable consideration, and giving a security, or executing an obligation for payment, will not be sufficient.</p> <p>The reason why equity refuses to regard a security given for the price of land as equivalent to actual payment, is because it can afford relief for a failure of title when there is a mere obligation for the payment of the purchase money, but not where it is actually paid. Where a case is presented in which such relief cannot be given, it may form an exception to the general rule.</p> <p>Notice to an agent, attorney, or counsel of a purchaser is constructive notice to the principal: and the same rule applies, if they are concerned, for both vendor and purchaser in the same transaction.</p> <p>The assignee of a chose in action takes it subject to the same equity it was subject to in the hands of the original obligor or debtor; and the assignment of a bond and mortgage is to be regarded in the same light as the assignment of a mere chose in action. But the rule extends no further than this — that the equities to which the assignment is subject are the equities residing in the original obligor or debtor. To subject him to the latent equity of a third person, he must have notice of it at the time of the assignment.</p> <p>Possession is notice only of the legal or equitable interest which the party in possession claims in the land; and the greatest extent to which the doctrine of notice can be carried, is to visit the party whom it is sought to affect by it with the knowledge of every fact and circumstance which he might have learned by inquiry of the party in possession. It does not impose upon him the duty of searching the record in the name of such party.</p>

<p>Promissory notes given in satisfaction of a personal injury inflicted on the payee, though they exceed the probable amount of the injury inflicted, have a sufficient consideration to support them in law, and will not be set aside unless a compromise of tho public offence was in eluded as part of the consideration.</p>

Bill for foreclosure, and to establish a lien upon real estate for the purchase money.

<p>Petition, by an alleged lunatic, to set aside the inquisition of lunacy, for want of due notice of the time and place of taking the same. The chancellor having been of counsel for one of the parties, the motion was heard before George K. Drake, esquire, one of the masters of the court.</p>

<p>Petition by a defendant, after decree and order for iehearing, for leave to file a hill in the nature of a bill of review,upon the ground of newly discovered matter. The circumstances of the case are stated in the opinion of the chancellor.</p>

<p>Henry L. Marker filed Ms petition, praying for a divorce á, vinculo matrimonii, on the ground of wilful, continued, and obstinate desertion for five years. Tbe defendant answered tbe petition, by wbicb sbe admits that sbe bad left ber husband for more than five years prior to tbe filing of tbe petition; but sbe alleges, as a justification for ber doing so, bis extreme cruelty towards ber, and charges him with keeping, during their intermarriage, lewd women in bis bouse, and of committing fornication and adultery with them.</p> <p>Tho defendant files her petition, in which she repeats the same charges against her husband. She alleges that she is without means, and prays that she may have a proper allowance made for support during the suit, and reasonable counsel fees to enable her to conduct her defence. This petition is under oath. The complainant has put iu his affidavit denying the charges alleged in the petition.</p>

<p>& general creditor Having filed his bill for relief, and having subsequently oh-t'ained judgment and execution at law, is not entitled to relief upon his original bill, though-a decree fro eonfesso-ba taken against the defendant. A 1 jnppiemontal bill should be filed, stating the facts which erftitle Mm 'to relief.</p> <p>-if a bill be so entirely defective that no decree can be made upon it, it will not be aided by a supplemental bill founded on facts that have subsequently taken place.</p> <p>But if the bill be sustainable on any ground, even for the purpose of granting temporary relief, the court having possession of the cause may hold it for the more general and important purposes of the bill, and will permit ,the complainant to file a supplemental bill.*</p>

<p>Where an executor, by the will of his testator, is directed to make partition of the testator’s real estate, and by reason of the peculiar situation and character of the property is unable to do so, and files his bill ill this court, and a sale is ordered, and a distribution made among the parties interested? the executor is entitled to the same fees, and no more, as a master of this court is entitled to for the performance of like services.</p>

<p>Lands acquired after the publication of a will, will not pass by a devise in the will.</p> <p>Bill for specific performance. Demurrer for the want of equity.</p> <p>This was an amicable suit, for the purpose of obtaining the opinion of the court upon a question of law. The nature of the case is clearly stated by the complainant’s counsel.</p>

<p>The complainant filed his bill for the recovery of certain legacies, bequeathed by the last will and testament of William Berry, deceased, and for an account. An interlocutory decree in favor of the complainant, was made at April term, A. D. eighteen hundred and thirty-four, directing a reference to a master to take and state an account upon proper and equitable principies.* Upon the coming in of the master’s report, exceptions were filed by John W. Berry, one of the executors; and the cause came on to be heard at April term, A. D. eighteen hundred and thirty-five, upon the exceptions to the report.</p>

<p>Where the equity of the bill is denied by the answer, the injunction should be dissolved.</p> <p>There are exceptions to the rule. A case to be considered an exception should be such, as that a dissolution of the injunction would amount either to depriving the complainant of all relief, if be finally succeeded in his cause, or subject him to some peculiar hardship, while its continuance could be but a temporary inconvenience only to the other party.</p>

<p>W. W. was indebted to J. R. in the sum of $394 on book debt, and $606 for his note, lent by J. R. to W, W. To secure the two sums, W. W. gave his bond and mortgage to J. R. for a thousand dollars. The note of $606 was paid by W. W., and retained by him until after J. R’s death. Between the time of the date of the note and the death of J. R., W. W. had become his debtor to an amount exceeding the $1000 and interest, after deducting the $606 note. In a settlement between the executors of J. R. and W. W. a balance of over a thousand dollars wa's found due from W. W., and it was agreed between them that the mortgage should stand as a security for the debt. The bona fides of the transaction was not questioned. Held, that the mortgage was a valid security for the whole.</p> <p>Where, subsequent to giving the mortgage, and after the debt is due, the mortgagor confesses a judgment to the mortgagee for the mortgage debt, the judgment does not extinguish or impair the mortgage security.</p>

The complainant in this canse filed his bill, for forclosure- and sale of mortgaged premises, against the mortgagor and others having subsequent incumbrances.

<p>A claim which cannot be allowed as a set-off under the act' to enable mutuitf dealers to discount, may nevertheless he allowed as a set-off by receivers; under the act to prevent frauds by incorporated companies.</p> <p>The act entitled “An act to prevent frauds by incorporated companies,” pan; takes largely of the character of a bankrupt law. The general object of the act and the provisions made to effect it are’ essentially the same as the Bankrupt law; and it seems proper to apply to it the general rules'that govern the -bankrupt system where it is in use.</p> <p>The act does not confine itself to legal set-offs, but refers to just set-ofís, and expressly directs the receivers to allow them when they ought to be allowed according to equity. It gives to receivers an equitable power, and they are to- exercise it according to the justice of the ease.</p> <p>Where the creditor has two funds, one separate and one in common with oth-¿ ers, he must first look to- his separate security, and after that is exhausted he may look to the fund in which others are interested. '</p> <p>The property in the hands of receivers is considered as in court and under its" control-, to be administered so as- best to subserve the purposes of equity.</p> <p>As soon as the assets are withdrawn from the debtor and placed in the hands of receivers, the general creditors acquire rights, which the court will protect by placing all the creditors on an equality as far as possible.</p>

<p>On motion to dissolve.</p>

<p>Part payment of the consideration money is not of itself sufficient, under ordinary circumstances, to take a case out of the operation of the statute of frauds.</p> <p>The act which is relied upon to establish part performance must be clear and definite, and referable exclusively to the contract. If possession is relied upon, it must be shown distinctly to be a possession under the contract.</p> <p>The mother, upon the death of the father, is entitled, as the natural guardian, to tho earnings of her children during their minority. This Is a general principle, but may be rendered inapplicable from various circumstances. The mother may emancipate her child, and clothe him with express or implied authority to receive for himself tho wages of his own skill and labor. If a mother permits her child to leave her roof, and provide for himself, or if she refuses to furnish him with the necessaries of life, so as to compel him to seek his own maintenance, he may contract for his own laboi', and be entitled to receive the earnings of his industry. A payment, under such circumstances. to the child would be a good defence against any claim after-wards made by the mother.</p> <p>If a mother permits her infant child to receive his own wages, and invest them, she cannot, after such appropriation with her consent, claim the benefit of such investment. She cannot, after such child has arrived of age, call upon him to account with her for his earnings during his minority.</p> <p>Where one tenant iu common makes a parol agreement with another, his co-tenant, for the purchase of his interest, and advances money in part payment, although the former cannot claim a specific performance of the agreement, a court of equity, in a suit lor partition, will decree tho money so advanced a lien upon llio land.</p> <p>A party, to ent‘lie himself to the benefits of a bona jiile purchaser without notice, must show that he has paid the purchase money.</p>

<p>The court will not by injunction protect a party who has been erroneously put into possession of land under a writ of restitution, especially where his title has not been established at law.</p> <p>It seems that a party has no right to a discovery, nor to the production of title deeds relating alone to his adversary’s title.*</p> <p>The purchasers of real estate are entitled to be heard before any decree is made impeaching the validity of the sale under which they claim title.</p> <p>Where a right has been repeatedly established at law, or where the same right is subject to be controverted by different persons, a court of equity may put an end to litigation by restraining suits at law and settling the whole controversy, or if need be, by directing a single trial at law.</p> <p>.But the court will not interfere to quiet the possession of a party, where there has been no trial of the right at law, and where there is but one adverse claimant.</p>

) There had been a previous appeal between the same parties, growing out of the same transaction, and at July term, eighteen hundred and thirty-four, the decision of the receivers was in all things affirmed. For a full statement of the facts, and of the grounds of the decision, see the opinion of the chancellor on that appeal.*

<p>Bum of interpleader. The case was this. Zachariah Barrow, in and by his last will and testament, bearing date on the thirtieth day of July, in the year of our Lord seventeen hun dred and twenty-five, duly executed to pass real estate, gave and devised as follows: “Imprimis. I will that all my just and hon est debts be paid which I owe to any man ; then I give to my well beloved mother-in-law, Mary Field, all my farm and plan tation, with dwelling-houses, out-houses, &c. during the term of her natural life. Item. It is my will that, after the decease ol my mother-in-law, Mary Field, I give the said farm for the benefit of a free school for the township of Greenwich for ever.”'</p> <p>After the death of the devisor, it appealing that he had acquired title to the said devised premises under John Fenwick, and his title appearing to be defective, the inhabitants of the town of Greenwich procured one Ebenezer Miller to procure a good title for the said premises from the proprietors of West New-Jersey, which was done. A survey of the said tract under title from the proprietors, having been made in the name of the said Ebenezer Miller, on the fourteenth day of November, seventeen hundred and forty-nine, the said Ebenezer Miller, together with Annanias Sayre and Thomas Ewing, attorneys duly constituted by the inhabitants of the town of Greenwich, conveyed the said premises, by deed of indenture, bearing date on the day and year last aforesaid, unto David Sheppard, his heirs and assigns, for the consideration of five shillings, yielding and paying therefor the yearly rent of thirteen pounds, current, money of New-Jersey, on the first day of December in each year, “unto the trustees for the time being, as they shall be chosen by the inhabitants of the town of Greenwich” contained in certain bounds in the said deed particularly specified; all which said yearly rents, with the arrearages thereof, were by the terms of the said deed “to be and remain for the use, benefit and maintenance of a free school to the inhabitants of the-town of Greenwich, aforesaid, that are contained in the above-' mentioned bounds, their heirs and assigns for ever.” And in case the said rent should be at any time in arrear, the trustees of the said inhabitants of the town of Greenwich, chosen for the time being, or any of them, were by the said indenture-authorized and empowered to enter on the premises and dis-train for the same.</p> <p>Immediately after the execution of the said deed, and by virtue thereof, the said David Sheppard entered into possession of the said premises, and he and his heirs continued to hold the said premises, and paid the rent reserved by the said deed, regularly up to the first day of December, eighteen hundred and thirty-four, to the trustees chosen by the inhabitants of the town of Greenwich, as described by the said indenture, and the same was expended for the benefit of a free school for the said inhabitants.</p> <p>In the year eighteen hundred and thirteen, Joseph Sheppard, the defendant, purchased a part of the said premises, subject to the rent reserved in the said indenture; whereupon an agreement was entered into between him and the inhabitants of the said town of Greenwich, by which the portion of the said rent to be paid by the said Joseph Sheppard, was fixed at twenty-five dollars and twenty-five cents, which was paid by him annually to the said trustees, from the year eighteen hundred and thirteen up to the first of December, eighteen hundred and thirty-four.</p> <p>The inhabitants of the town of Greenwich are not a body corporate in law — the township of Greenwich, as incorporated by law, embracing considerable territory not contained in the town of Greenwich as described in the said indenture. From the making of the said indenture, the inhabitants of the said town of Greenwich, as described in the said indenture, from time to time chose trustees, and maintained a free school with but little intermission; and on the twentieth of March, eighteen hundred and forty-one, they duly elected Eeuben Hunt and four others trustees of the said inhabitants. The said Joseph Sheppard having refused to pay the rent in arrear, the trustees so elected were, by a vote of the inhabitants, instructed to file a bill in chancery for the recovery of the said rents. Accordingly, on the twenty-fourth of February, eighteen hundred and forty-two, a bill was filed in this court by the said Eeuben Hur t, Enoch Mulford, David Jones, Samuel C. Fithian and Charles B. Fithian, (the trustees so elected as aforesaid,) on behalf of them selves and all other the inhabitants of the town of Greenwich, against the said Joseph Sheppard, for the recovery of the said rent in arrears, setting forth substantially the above related facts.</p> <p>On the thirteenth of July, eighteen hundred and forty-two, the said Joseph Sheppard filed a bill of interpleader against the complainants in the original bill, and against the inhabitants of the township of Greenwich, in the county of Cumberland. The bill of interpleader states, among other things, that the premises were conveyed to the complainant with a covenant of warranty against all claims “ except the annual or yearly annuity, right or demand, which the township of Greenwich hath on the premises for ever;” that the complainant, from the time of the said conveyance, paid the said yearly rent of twenty-five dollars and twenty-five cents to the inhabitants of the townshvp of Greenwich; that he continued such payments until he was notified that payments to the township of Greenwich would be contested, and that the complainant would be held responsible for the whole of said rent to the inhabitants of the town of Greenwich; that he is ready and willing to pay the said rent, but both of the said parties persisting in their claims, and the complainant being wholly ignorant to whom the said rents rightfully belonged, could not with safety pay either, until the rights of the claimants were settled by a competent tribunal; that by an act of the legislature of the state of New Jersey, passed the ninteeeth of January, A. D. seventeen hundred and forty-seven, the county of Cumberland was set off from the southern part of the county of Salem; and in and by the said act, the township of Greenwich was incorporated, and the boundaries thereof particularly defined; the said boundaries, as described by the said act, being much more extensive, and embracing a greater number of inhabitants, than the town of Gz’eenwiclz as defined in the said indenture to David Sheppard.</p> <p>An answer was filed to the bill of interpleadez’, by the complainants in the original bill, in which, among other things, they state, that they have reason to believe that the bouizdaries of the township of Greenwich, at the date of the said devise by the said Zecliariah Barrow, were different from the boundaries •of said township as prescribed in the act creating the county of Cumberland, but that they were unable with certainty to ascertain the same; they deny that the said Zechariah Barrow had any title to the said premises, and insist that the inhabitants of the town of Greenwich acquired title from the council of proprietors ; that by the conveyance to the said David Sheppard, the rent was reserved to the inhabitants of the town of Greenwich •as described in the said deed, and that the said conveyance and reservation were acquiesced in for nearly a century ; they deny that the said rent was ever paid to the inhabitants of the township of Greenwich, but insist that it was always paid to the trustees chosen by the inhabitants of the town of Greenwich, in accordance with the reservation in the said deed, or to others with their assent and concurrence. They allege that the township of Greenwich have in fact abandoned all claim to the said rents; that the said Joseph Sheppard is himself the party in interest, and has set up the claim on behalf of the inhabitants of the township of Greenwich, to defeat the just claim of the •defendants to the said rents.</p> <p>The cause was heard upon the bill of interpleader, answer, replication and proofs.</p>

<p>S. S. gave his bond and mortgage to J. B., executor, &c., to secure a debt of $1000, due from W. M. to said J. B., executor. W. M., some years after, paid the money, and took an assignment of the bond and mortgage. Held, that W. M. could not give vitality to the bond and mortgage by assigning them to a third party, and that such third party took them subject to the equities existing between the mortgagor and W. M.</p> <p>But although the assignment was made to W. M., and the money paid by him, it is competent for him to show that he was acting as trustee for another.</p>

<p>The ancient doctrine of the court of chancery was, not to interfere by injunction in cases of trespass, but to leave the party to his legal remedy. The-practice of the court is now more liberal; yet in cases of trespass it still expects a strong ease of destruction or irreparable mischief to be presented.</p> <p>Cutting off the timber from a tract of pine land, valuable only or chiefly for the wood upon it, is not such a case of irreparable mischief as will warrant the granting of an injunction, (a)</p> <p>Not will the court interfere by injunction though the bill charges that the actual trespassers are poor and unable to respond. (b)</p> <p>The rule formerly was that a complainant, by stating an adverse claim to the property, stated himself'out of court. This is not now the case to the same extent as formerly; but where the complainant by his bill discloses a claim on the part of the defendant, and whence derived, he shows that there is a conflict in the title, and furnishes an additional reason why the court should not interfere in matters of trespass where no remediless injury is likely to be sustained.</p>

<p>The will of the testator authorized his executors, or the survivors or survivor of them, to invest all the residue of his personal estate, with whatever interest may have accrued thereon, after paying the legacies specified in the will, in good productive real estate, at their discretion, as soon after his decease as to them, or the survivors or survivor of them, should seem most to the interest of his estate, and to take deeds for the same in their own name or names, in trust for the benefit of the lawful child or children of the testator's deceased son John, or the survivor of them. J. 0., one of the executors, conveyed to himself and his co-executors, upon the trusts named in the will, two brick houses, for the consideration of $3500, and a grist mill, for $14,000.</p> <p>Held the conveyance should be set aside: 1st. Because the conveyance of the brick houses was made without the consent of A. R., one of the executors, and of the mill, against his express dissent.</p> <p>And further held, that no investment in real estate could be made under the will, except with the joint consent of all the executors.</p> <p>An executor, authorized to purchase real estate for investment under the directions of the will of his testator, cannot sell his own land to himself, as executor. for such a purpose. It is inconsistent with the faithful execution of his trust that J. C. should sell property belonging to himself as an individual to J. C. as executor. Such a sale may be affirmed, or disaffirmed, by the cest-ui que trust; or if he is an infant, then the court, when the question is directly or incidentally presented, will deal with the conveyances as it shall consider best and most advantageous for the infant.</p> <p>Under the will referred to, a purchase of a lot of land, good for nothing except to be used in the manufacturing of brick, is not such productive real estate as the will contemplates.</p> <p>Where a.will authorizes investments to be made in the discretion of the executors, a party for whose benefit the investment is directed to be made may appeal to a court of equity to decide whether the discretion has been exercised soundly and honestly. An executor cannot have an authority conferred upon him not in some measure subject to the control of this court. If a testator should declare that the executors, in the discharge of duties imposed upon them, should not be subject to the control of a court of equity, the court would disregard such a provision in the will. The execution of the will cannot be taken without and beyond the control of the law by the caprice of the testator.</p> <p>A party interested has a right to have the discretion submitted to the executors exercised in a proper, reasonable, and honest manner, and the appropriate legal tribunal cannot be deprived of its proper jurisdiction to protect the rights of the party interested.</p> <p>Where a party excepts to an account which contains a number of items of charges, he must specify the specific charges of which he complains. He cannot, by a general exception, impose the burthen upon the court of examining every item in the account to detect the error.</p> <p>Where an executor is obliged to foreclose a mortgage to raise the mortgage money, and the property is about to be struck off at a sacrifice below the amount due, this court will sanction a purchase by the executor for the benefit of the estate.</p> <p>The will authorized the executors to invest in productive real estate, and to make suitable and convenient repairs upon the property. Executors not authorized to purchase vacant lots in a town, and to erect brick dwelling houses upon them.</p> <p>The will authorized the executors to invest, at their discretion, as soon after the testator’s death as to them should seem most to the interest of the estate. The court will not interfere with this discretion, as to time, by fixing a ■ period to be considered a reasonable period within which such investments should be made. It is the duty of the executors to collect the interest upon the securities, and to make temporary investments until the trust of the will can be executed.</p> <p>An executor is chargeable with all losses which occur in consequence of his negligence.</p>

Bill by legatees against one executor and the administrators of a deceased co-executor, for the recovery of a legacy and an account. The surviving executor was unable to respond. The estate of the deceased executor, by whom the larger part of the estate had been received, was solvent. The bill sought to charge both executors with the amount due upon the legacy. A decree pro confesso was taken against the surviving executor.

<p>Upon a motion for an injunction, and the appointment of receivers, under the act, entitled, “An act to prevent frauds by incorporated companies,” the primary question is, whether the corporation be insolvent or not.</p> <p>If it be a balancing question, and the course of those who manage the affairs of the company appears to be upright and just, the doubt should be resolved in favor of the rights of the company.</p> <p>it would be unwise and impolitic to interfere with any corporation, so long as they are acting with an honest purpose, unless their condition is hopeless, or their course of action such as to jeopard the interests of creditors and the public.</p> <p>The mero opinions of witnesses in regard to the insolvency of a company, without referring to the facts upon which their opinionsare founded, are entirely insufficient, and can never form the basis for the action of the court. The affidavits of the complainants, made after filing the bill, are not competent to be read upon a motion for an injunction and the appointment of receivers.</p>

<p>* Bill filed on the eleventh of July, eighteen hundred and twenty-nine, by Joseph Stark, administrator of Jane Stark, formerly Jane Weller, deceased, and in his own right; Alexander C. Stark and Benjamin W. Stark, infants, by Joseph Stark their next friend ; and by Daniel K. Allen and Mary his wife, late Mary Weller.</p> <p>The bill states, that Benjamin Weller, late of Aquackanonck, in the county of Essex, being seized and possessed of considerable real and personal estate, on the sixth of June, A. D. eighteen hundred and twenty-three, executed and published his last will and testament in due form of law to pass real estate, as follows: that is to say, “ Be it remembered, that I, Benjamin Weller, of Paterson, in the county of Essex, and state of New-Jersey, do m'ake and publish this my last will and testament, in manner and form following ; that it to say, First, it is my will and J do hereby direct my executors herein after named, to pay all my just debts and funeral expenses out of my personal estate, and out of the proceeds of such of my real estate as is herein after directed to be sold by my executors.</p> <p>“ Secondly, I give, devise and bequeath unto my wife Jane, all my tavern-house and lot where I now live, together with the furniture and stock in the same: to have and to hold to my said wife Jane during her natural life, provided she remains my widow ; but in case she should marry again, then it is my will that my said tavern-house and lot and furniture be disposed of according to law.</p> <p>“And it is my will, and I do hereby order and direct my executors herein after named, or the survivor or survivors of them, to sell, dispose of and convey my hat-shop and lot on the corner of the old York road and turnpike road in the town of Paterson; also, a half-acre lot, and a small lot of about forty feet front, situate on the road leading from Paterson to the white house, or either of them, as my executors may think necessary or proper for the interest of my widow and children: and it is my will that the proceeds of the sale of said lots or of such of them as my executors shall sell, shall be applied to the payment of my debts.</p> <p>“ And I do hereby constitute and appoint my wife Jane executrix, and doctor William Ellison and Philemon Dickerson, of Paterson, executors of this my last will and testament.”</p> <p>The testator died on the eleventh of June, eighteen hundred and twenty-three, leaving four daughters, (viz. Jane, who intermarried with the complainant, Joseph Stark; Mary, who intermarried with D. K. Allen; Elizabeth, and Margaret,) and three sons — his only children and heirs at law.</p> <p>That the widow, Jane Weller, and P. D., shortly after the testator’s death, duly proved the said will and took upon themselves the burthen of the execution thereof, and possessed themselves of the personal estate and effects of the said testator, and on the eleventh of October, A. D. eighteen hundred and twenty-three, made and filed an inventory and appraisement thereof in the surrogate’s office of the county of Essex, amounting to four thousand seven hundred and eighty-one dollars and fifty-nine cents.</p> <p>That on the twentieth of March, A. D. eighteen hundred and twenty-four, the executors sold and conveyed part of the testator’s real estate, consisting of the hat-shop and lot in Paterson, to one J. F., for eight hundred and fifty-five dollars: that the further sum of three hundred dollars had been paid to the executors for a lot of land which belonged to the testator, situate in the county of Bergen; but that the half-acre lot, and a small lot of about forty feet front situate- on the road leading from Paterson to the white house, and by the will of the said testator directed to be sold, remain undisposed of.</p> <p>That Jane Weller, the widow of the testator, accepted the gift, devise and bequest intended for her in said will, and thereby became barred of her dower in the real estate of the testator; and by virtue of said devise and bequest, she took possession of the tavern-house and lot, and with the consent of the said P. D., executor as aforesaid, she also took possession of the furniture in the said tavern-house, subject to the proviso contained in said will, viz. — -to have and to hold to her during her natural life provided she remained his widow, but in case she should marry again then that the said tavern-house and lot and furniture should be disposed of according to law.</p> <p>That the said Jane, the widow of testator, on the twelfth of November, eighteen hundred and twenty-eight, intermarried with G. H., and thereby forfeited all right and interest in the gift, devise and bequest intended for her in said will, and that the fact of said marriage was known to the said P. D.</p> <p>That the said Jane, the testator’s widow,- had always since the death of the testator lived upon the premises devised to her, and taken the rents,- issues and profits thereof, and also used and enjoyed the stock and furniture in the same, until her intermarriage with G. H. That shortly after his marriage with the said Jane, the said G. H. took possession of the premises previously occupied by her, and has since continued to reside therein: that he also, with the consent of the said P. D., executor as aforesaid, possessed himself of the furniture held by the said Jane, and sold a part thereof, and still keeps possession of the residue; and has also, with the said Jane, entered into the possession and receipt of the rents, issues and profits of the real estate, devised to the said Jane as aforesaid.</p> <p>That Jane Stark, one of the daughters of the testator, died on the nineteenth of April, A. D. eighteen hundred and thirty-eight, intestate, leaving A. O. S. and B. W. S., two of the complainants, both infantsmnder the age of fourteen years, her children and heirs at law, and that administration of her' estate was duly granted to the complainant, J. S.-</p> <p>Prayer, that the will of the said testator may be established and its trusts carried into execution: that a receiver may be appointed of the rents and profits of the real estate devised to the said Jane, and that an injunction may issue to restrain the said G. H. and Jane his wife from receiving any of the said rents, or any of the assets belonging to- the estate of the said testator.</p> <p>A decree pro confesso was taken as to part of the defendants, and after various proceedings in the cause it was referred to a master to take an account of the personal estate of the said testator, and also of moneys received from the sale of the real estate.The master having made his report, exceptions were taken to the report by D. K. Allen and wife, two of the complainants, and the cause now came on for hearing upon the exceptions.</p>

<p>A person who is not a party to a suit may, after decree, file a bill to be relieved against the effects of such decree; as if there is a decree in favor of mortgage and judgment creditors, a creditor of the mortgagor and judgment debtor, if he can show that the mortgage and judgment are kept on foot for the benefit of the mortgagor, and to defeat his creditors, may file his bill to be relieved against such decree.</p> <p>Where the complainants have taken the necessary steps to expedite their cause, and procure the answer of all the defendants, an injunction will not be dissolved until the defendant upon whom the gravamen of the charge is made lias answered, and if all the defendants are implicated in the charge, not until all have answered.</p> <p>A complainant may properly make every one a party who is a participator in the fraud: he has a right to do this for the purpose of discovery; and the general rule is, that he has a right to hold Mb injunction until he obtains that discovery.</p>

<p>As a general rule, a court of equity will not entertain a bill for specific performance of contracts relating to chattels or merchandise. There are exceptions to the rule. Where the agreement is an open one, not final, and not immediately to be executed, but to be completed by subsequent acts, and for the breach of which the remedy at law is uncertain and inadequate, and will not answer the justice of the case, a bill to carry it into execution will be sustained.</p>

<p>Premises purchased at sheriff’s sale and conveyed to the purchaser under a. parol agreement to permit the defendant in execution to redeem, ordered to be reconveyed.</p> <p>The purchaser, in addition to the price of redemption, allowed a fair compensation for his time, trouble and expenses.</p> <p>If arbitrators are not sworn, the whole proceeding is utterly void.</p>

<p>The statute requives the sheriff to advertise the land which he undertakes to to sell by virtue of an execution at law. If, by mistake, he omits to advertise any part of it, and gives a deed to a purchaser for the part not advertised, the mistake is one which this court cannot correct for the protection of the purchaser against whom an ejectment is brought.</p> <p>It is a well established principle in equity, that a person shall not be permitted to take advantage of his own wrong, and after having induced another, either by tacit acquiescence or express words, to expend his money in the purchase of land or personal property, deprive such person of the benefit of his purchase by setting up a superior title in himself.</p> <p>Where there is wilful concealment or misrepresentation there is no difficulty in applying the principle; but where there is mere negligence, by which another has been misled, there is often difficulty in inferring that constructive fraud which will deprive a man of his legal rights.</p>

Bill filed March sixteenth, eighteen hundred and thirty-two: The bill states, that John Potts, deceased, was in his life time, and at the time of his death, possessed of a large personal estate, and was also- seized and possessed in fee simple of a’ valuable real estate.

Bill filed fifth of April, eighteen hundred and thirty-nine,, for the specific performance of the following agreement:— “ Articles agreed upon between Charity Auble and George Pickle, both of the township of Washington, county of Morris- and state of New Jersey, this thirtieth day of December, in the year of cur Lord one thousand eight- hundred and thirty-seven.

<p>The testator directed — first, that his debts should be paid out of his real estate; second, he bequeathed to his wife all his personal property; third, he devised to his wife one-third of his real estate; fourth, he devised to his brother the residue of his real estate, charging such residue with the payment of $300 to the testator’s brother and two sisters; hold, that the estate to the widow and brother must be charged pro rata, and that as, by the statute, {Nix. Dig. 877, § 36,) after acquired real estate would have gone one-third to the widow, and two-thirds to the brother of the testator, this circumstance could not alter the burthen placed upon the estate of the respective devisees.</p>

<p>A party who is guilty of laches is not entitled to have a sale opened.</p> <p>A party who has notice of the suit, and does not appear and make defence, has no right to ask to have the sale opeued on any ground which he might have interposed as a defence, unless he was prevented from making his defence by fraud or mistake. Even then, if he is present at and consents to the sale, he thereby waives his rights.</p>

<p>The 5th section of the mechanic’s lien law declares, that any addition erected to a former building shall be considered a building for the purposes of the act, but that no building shall he subject to the provisions of this act for any debt contracted for repairs done thereto, or alterations made therein. The affidavit of the claimants stated that the materials wore furnished for repairing, altering, erecting, and furnishing the buildings. Held, no lien can be created under such an affidavit.</p> <p>A piazza is an “ addition” to a building within the meaning of the 5th section, which declares “ any addition erected to a former building, and any fixed machinery, or gearing, or other fixtures for manufacturing purposes, shall be considered a building for the purposes of this act.” Folding-doors are not embraced in the section.</p> <p>The lien covers the “addition,” which is declared lo be a building for the purposes of the act; but it does not cover the building to which the “ addition” is attached or erected.</p> <p>There was a lien upon the “piazza” and “kitchen.” The court directed a valuation, and the amount deducted from the fund, the original buildings and “ additions” being sold together, which was deemed the interest of all parties.</p> <p>Although a claimant embraces in his claim filed, more property than by the statute he is entitled to have embraced in his lien, it is good to the extent it is recognised by the statute, if it is a mere mistake, and works no injury.</p> <p>The converting of a garret into bod-rooms, for the purpose of increasing the number of rooms and accommodating the building to a boarding house, is an alteration within the meaning of the statute, and the building, or any part of it, is not subject to a lien for such alterations.</p> <p>Direction given where there are mortgages and mechanics’ liens to be satisfied out of the premises, as to priorities, modes of payment, &e.</p>

<p>Bill .of Interpleader. The cause came on for hearing, upon a demurrer filed hy the defendants to the complainants’ bill. The character of the bill and the grounds of demurrer are fully stated in the opinion of the chancellor.</p>

<p>A judgment at common law is not a lien upon a mere equitable interest, nor is such interest the subject of a levy and sale by virtue of an oxeoution.</p>

<p>No person can apply to open a sale under a decree of foreclosure, unless he is a party to the suit, or lias some interest in'the mortgaged promises; and such interest must appear on the face of his petition. He cannot set up, at the hearing, an interest in the premises, other than that which appears in the petition.</p>

<p>In the Reformed Dutch Church, under the statute of New Jersey, incorporat. ing religious societies, the civil office of trustee grows out of the ecclesiastical office of minister, elder, or deacon. Every minister, elder, or deacon, properly called and instituted, is, virtute officii, a trustee, and must necessarily remain such as long as his ecclesiastical office continues.</p> <p>Ministers, elders, or deacons, lawfully elected and ordained, and thus inducted into office, though they afterwards secede, renounce the authority of the classis and general synod, and unite with another ecclesiastical body, do not thereby divest themselves of their offices.</p> <p>There must be a removal or amotion, by a competent power, to determine an office.</p> <p>If there be a resignation, the resignation must be accepted; and if there be an absolute vacation of an office, such vacation must be recognised and acknowledged.</p> <p>When the original title of an office is sufficient, though good cause of amotion be shown, even in a case where the charter declares that for such cause of amotion the officer shall vacate his office, the office is not determined until there be an amotion.</p> <p>When persons are officers de facto, they are in colore officii, and their acts will be valid until they aré lawfully ousted; and more especially as they respect third persons, their acts are binding on the corporation. Is a court of equity the proper tribunal in which to try the question of forfeiture of office ? Quere.</p>

<p>Motion to dissolve.</p>

Bill- for a perpetual injunction, to restrain the defendant from pi’oceeding at law to recover the balance due upon a bond given by the complainant to the defendant. The bonci was secured by a mortgage of even date upon real estate. The mortgage had been foreclosed, and the mortgage security proving inadequate, the defendant commenced a suit at law against the complainant to recover the balance due upon his bond.

The Chancellor having been of 'counsel with the complainants prior to Ms appointment to office, tbe cause was referred to William Pennington, esq., one of the masters of this court, for his advisory opinion. It was argued before him by

The hill states that, in July, 1841, a meeting was held at Cape Island, by “ the visitors and citizens of said island and vicinity, for the purpose of taking measures to procure the erection of a suitable, place of worship, on said island, for the free and perpetual use of said visitors,” at which meeting it was resolved forthwith to open subscription books for that purpose, to be submitted to the visitors and citizens.

The bill in this cause was filed on the twenty-fourth of January, eighteen hundred and forty-two, by Ann P. White, George Emlen Hare, Rebecca N. Paxson, William R. Skillman and Hetty his wife, Garret Hulfish and Abby his wife, Mahala Voorliees, The Rector, Wardens and Vestrymen of Trinity Olmrch, in the borough of Princeton, Eliza Jerome and Hansen Vancst all of the county of Mercer, in the state of New-Jersey; John E. Willits and Mary P. Willits his wife, and Elizabeth…

<p>Whero a bill is filed to establish and enforce a trust, although the alleged trustee does not appear to oppose the claim, the court will order proofs to be taken to establish tho case made by the bill. And the evidence to prove the trnst must be legal, and will not be dispensed with because the trustee does not answer, and deny tlie trust. Thus, where a trust is alleged which, from its character, is required to be in writing by the statute, the court will not allow parol evidence to be substituted for the written evidence which tho statute requires.</p> <p>A declaration of trust need not be subscribed by tho person declaring tho trust. The statute does not require the writing to be subscribed, but to be signed by the trustepf Wherever the same may appear in the writing, whether subscribed at the end or signed, that is placed as the sign oi its authentication in the body of the instrument itself, for the purpose of attest• ing it: such is a signing of the writing, and is a substantial compliance with the statute.</p> <p>The initials, if used for the purpose of a signature, are as efficacious as the signature at length.</p> <p>The statute does not declare that the trust shall be created by a writing, but that it shall be manifested and proved by writing.</p> <p>The deed by which the trust was alleged to be created was executed on the 19th of July, 1828. The declaration of trust was signed ten years afterwards. Held good.</p> <p>An implied trust may be repelled by the same kind of evidence by which it is established. Where it may be established by parol, it may be rebutted by parol.</p>

<p>This cause was heard upon a rule to show cause why an attachment should not issue against the defendants, for a contempt in disobeying an injunction; and also upon motion on the part, of the defendants to dissolve the injunction. The grounds of each application are fully stated in the opinion of the chancellor.</p>

<p>A court of equity will hear a party who seeks relief against his own act on the ground of intoxication, though formerly such hearing was denied.</p> <p>To avoid a contract on the ground of intoxication it must be shown, either that the intoxication was produced by the act or connivance of the person against whom the relief is sought, or that an undue advantage was taken of the party’s’situation.</p> <p>If a person while in a state of intoxication, though not induced by the act or procurement of the grantee, executo an absolute conveyance of his property without consideration, equity will relieve against the conveyance.</p> <p>But if a person while intoxicated voluntarily execute a deed of trust for tho benefit of his wife and children, equity will not set it aside on the ground that undue advantage was taken of his situation.</p> <p>A resulting trust may be established by parol.</p> <p>But a trust coming within the provisions of the statute of frauds, can nover be established by parol, especially where there is no mistake or omission alleged in preparing the instrument.</p> <p>A declaration of trust requires no formality, so that it be in writing and have sufficient certainty to be ascertained and executed; and it is not material whether the writing be made as evidence of the trust or not.</p> <p>Where a deed is made absolute on the face of it, and without any actual consideration paid, if the grantor seeks to set it aside on the ground of fraud, the answer of the defendant setting up a trust, unless directly responsive to the bill, will not be evidence of the trust.</p> <p>But where the grantor files his bill claiming the deed to be a deed of trust, and the defendant by his answer admits it, the answer, it seems, will be good evidence of the trust, and a sufficient writing to support it.</p>

<p>If A. contracts with B. for a loan of money upon a usurious consideration, and procures O. to assign to B. a bond and mortgage as collateral security for such loan, the securities are usurious in the hands of B.</p> <p>A security that is valid when made is not void by a subsequent usurious contract. If a bond is legal at the time it is made, no subsequent event can make it usurious.</p> <p>The sale by one person, of the bond of another, bona fide made at any rate of discount, however exorbitant, is not illegal.</p>

<p>After an award has been executed, the court will mot set it aside upon the ground that the arbitrators were not sworn.</p> <p>Where an aocount has been settled by arbitrators, and a bond and mortgage given for the sum awarded to be due, the court will not, except in case of gross wrong, permit the account to be re-investigated, or the validity of the award to be contested.</p>

<p>An injunction ought not to be continued where the statements of the bill to sustain it are improbable.</p> <p>Where there has been a trial at law, an injunction will not be allowed to stay its execution where there was no surprise but such as the party might have reasonably anticipated.</p> <p>Where the bill admits that the complainant has no means of establishing his case but by the oath of the defendant, and the defendant answers and denies the facts of which discovery is sought, the injunction should be dissolved.</p>

<p>The testator by his will gives personal and real estate in trust to provide a home or residence for his daughters, the survivor or survivors of them, so long as they remain single and unmarried. Held that the trustee was bound to provide one home or residence for all the daughters, and not a home or residence for each one separately.</p> <p>If the trustee, by her misconduct, deprives the cestui que trust of the free enjoyment of the trust fund in the mode pointed out by the testator, equity-may direct that she shall enjoy it in a different mode.</p> <p>But this court will not interfere with the appropriation of the trust fund so as to direct it differently from the intention of the testator, except in a very clear ease.</p> <p>A mere difference of opinion among the cestui que trusts, or an indisposition to live under the same roof, will not be sufficient.</p> <p>* An amicable adjustment of a family controversy recommended, and the opinion of the court withheld to afford an opportunity for that purpose.</p>

<p>Although a demurrer admits the facts of the bill, the agreement being in parol, the complainant is entitled to the benefit of the statute of frauds, unless the part performance, which is set up to avoid its operation, is of a character to have that legal effect. The demurrer admits the parol agreement, and insists that it is not such a parol agreement as will avoid the operation of the statute, and deprive the defendant of the benefit of it as a defence.</p> <p>A defendant may answer and admit the parol agreement; but if, at the same time, he insists on the protection of the statute, no decree can be made against him merely on the ground of the admission of the agreement. A demurrer is, in effect, the same as an answer which admits the parol agreement, but claims the benefit of the statute. It admits the agreement, but denies the right of the complainant to enforce it.</p> <p>But if the bill alleges such a part performance as will take the agreement out of the statute, the demurrer is such an admission of the part performance as will preclude the defendant from the benefit of the statute. The bill must state the facts which are relied upon as part performance. When the facts are admitted by the demurrer, the court must determine whether the facts relied upon do constitute part performance.</p> <p>Where a father makes au agreement in reference to his infant child, from which benefits are to accrue to the child upon his performance of the agreement, after performance, the child, in his own name, may file his bill to enforce the agreement. The party for whose benefit the agreement is to be performed, and especially if any valuable portion of the consideration has been rendered by him, has the legal right to enforce it. It is of no consequence that the promise to fulfil it was not made directly to the person who is entitled to remuneration. It is enough if it was made by some one who had authority to make it on his behalf.</p> <p>The lather of an infant child made an agreement with an uncle of the infant, at the uncle’s request, to this effect, that the uncle should take the infant and adopt Mm as Ins own child, and that he would treat him as his own son, and that the property he should have should be given to the child, so that it should belong to him at the death of the uncle and his wife. The uncle took the child, and had him baptized, and the child assumed his surname, and lived with Mm twenty-five years. Held that the child might maintain his bill upon the agreement after such performance.</p>

Bill for redemption. The bill was originally filed against Job Johnson, in his lifetime.

<p>Motion to dissolve injunction.</p>

<p>Bill for foreclosure, filed by the administrators of the mortgagee, against the mortgagor, and the purchasers of the equity of redemption. The answer admits the mortgage, but sets up various grounds of defence in avoidance of the claim, which are stated in the opinion of the chancellor. The cause was heard upon bill, answer, replication and proofs.</p>

<p>The complainant, on the twentieth day of October, eighteen hundred and forty-one, filed his bill of complaint for foreclosure, sale, &c., on a mortgage made and executed to him, by w The Morris Canal and Banking Company,” an incorporated company of the state of New Jersey.</p> <p>The bill sets out the original act incorporating the said company, passed the thirty-first day of December, eighteen hundred and twenty-four, and the several supplements thereto, and more particularly the supplement passed the twenty-eighth of January, eighteen hundred and thirty, entitled, “ An act to amend an act, entitled, ‘ An act to incorporate a company to form an artificial navigation between the Passaic and Delaware rivers, passed the thirty-first day of December, eighteen hundred and twenty-four,’ and for other purposes.”</p> <p>The bill then states, that after the passage of the said last mentioned act, the complainant, by the request and in pursuance of the authority and instructions of the board of directors of the said The Morris Canal and Banking Company, did in behalf of the said company, and for their use, negociate a loan in the city of Amsterdam aforesaid, of seven hundred and fifty thousand dollars, which sum was handed or paid over to the said company; and the said The Morris Canal and Banking Company, for the purpose of securing the re-payment of the said capital sum of seven hundred and fifty thousand dollars, with interest on the same, made and executed in due form of law, and delivered to the complainant, their certain indenture of mortgage, bearing date the twenty-ninth day of March, in the year of our Lord one thousand eight hundred and thirty, and made between the said The Morris Canal and Banking Company, of the first part, and the complainant, by the name and description of Williern Willink, junior, of the city of Amsterdam, in the kingdom of the Netherlands, merchant, being the agent and trustee of the several subscribers to the loan therein after mentioned, of the second part; and in and by the said indenture of mortgage it is recited and set forth, that whereas the complainant, in pursuance ©f the authority and instruction of the board of directors of the Morris Canal and Banking Company, had on behalf of the said company lately negotiated and concluded in the said city of Amsterdam, an agreement for a loan of seven hundred and fifty thousand dollars, to be advanced by the subscribers thereto according to the sums subscribed by each of them respectively, by the conditions of which agreement, the said loan was to bear interest at the rate of five per centum per annum, to be paid half-yearly, that is to say, on the first day of July and on the first day of January in each year until its reimbursement ; and the capital sum to be reimbursed by five equal annual installments, commencing the first day of January, in the year of our Lord one thousand eight hundred and forty-six ; and that the said interest, and also the said instalments of principal, should be paid in Amsterdam to the complainant, representing the said lenders, or to his successor or successors in the said trust, or to such person or persons as he or they might substitute or appoint for that purpose; and that the payment thereof should be secured by the pledge and hypothecation of the Morris Canal belonging to the said company, with its appendages and appertenances, and the annual revenues, chartered righs and property of the said company therein after mentioned; and that the said conditions had been approved and confirmed by the board of directors of the said company ; and thereupon the said indenture of mortgage witnessed that the said “The Morris Canal and Banking Company,” for the purpose of securing the reimbursement of the said capital sum, and the due payment of the said interest, according to the conditions of the said agreement, and in consideration of the sum of one dollar, to them in hand paid by the complainant, the receipt whereof was thereby acknowledged, and in pursuance of the power and authority for that purpose given and granted to them by the laws of the said state of New-Jersey, had granted, bargained, sold, assigned, transferred and set over, and by the said indenture of mortgage did grant, bargain-, sell, assign, transfer and set over unto the complainant, his heirs, executors, administrators, successors, substitutes and assigns, for the benefit of the said lenders, all and singular the said Morris Canal, so called, being the canal authorized by the laws of the state of New-Jersey, as the canal had been laid out, through the several counties of Warren, Sussex, Morris, Essex and Bergen, in the said state of New-Jersey, and being then in a course of completion from the Delaware to the Hudson river, together with all and singular the dams,acqueducts,locks,planes, culverts, bridges, towing-paths, embankments, basins, wharves, •docks, waters, water-courses, machinery, privileges,appendages and appertenances thereto belonging or appertaining, and also the chartered rights of the said company, and all the tolls, income, revenues and profits accruing, or which should or might at any time thereafter accrue or arise from the said canal; and also all the lands, tenements and other properties of them The Morris Canal and Banking Company, whatsoever and wheresoever, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and of every part and parcel thereof, and all the estate, right, title, interest, property, claim and demand, as well at law as in equity, of them The Morris Canal and Banking Company, of, in and to the same, and every part and parcel thereof; to have and to hold all and singular the said granted and assigned premises unto the complainant, his heirs, executors, administrators, successors, substitutes and assigns, to his and their proper use and benefit, as fully and effectually, to all intents and purposes, as they The Morris. Canal and Banking Company were seized, possessed or entitled unto, or could in any manner grant, convey, assign and transfer the same — upon trust, nevertheless, for the benefit and behoof of the several lenders, their respective executors, administrators and assigns, in proportion to the sums by them respectively advanced, or to be advanced, on account of the said loan; Provided always, and the said indenture of mortgage was and is upon the condition, that if the said The Morris Canal and Banking Company, or their successors, should well and truly pay to the complainant, his executors, administrators and assigns, representing the said lenders, or to his successor or successors in that trust, or to such person or persons as he or they should substitute and appoint for the receipt of the same, the aforesaid capital sum of seven hundred and fifty thousand dollars, by five equal annual installments, commencing on the first day of January, in the year of our Lord one thousand eight hundred and forty-six, and also the annual interest on so much of the said capital sum as should from time to time remain unextinguished and not reimbursed, to be computed at the rate of five per centum per annum, and to be paid half-yearly, that is to say, on the first day of July next succeeding the date of said indenture of mortgage, and half-yearly thereafter; such reimbursement of said capital sum, and such half-yearly payments of interest, to be made in the said city of Amsterdam; then that the said indenture of mortgage, and the estate thereby granted, and every act, matter and thing therein contained, should cease and be null and void to all intents and purposes; and the said The Morris Canal and Banking Company, for themselves and their successors, by the said indenture of mortgage, did covenant, promise and agree to and with the complainant, his executors, administrators, substitutes and asssigns, representing the said lenders, that they the said Morris Canal and Banking Company, and their successors, should and would well and truly reimburse, pay and discharge the said principal sum and interest, at the times and in the manner in the said indenture of mortgage specified, and herein before set forth ; and it was also by the said indenture of mortgage expressly declared and agreed by and between the parties thereto, that if default should at any time be made in the payment of the said capital sum and interest, or either of them, or any part thereof, according to the true intent and meaning of the said indenture of mortgage, then and in that case, and as often as such default should be made, it should be lawful for the complainant, his heirs, executors, substitutes or assigns, representing the said lenders, or such person or persons as shall or may have succeeded to the said trust, to enter upon and to have, hold, use and enjoy, the said canal, with its appendages and appertenances, and all and every of the premises granted and assigned by the said indenture of mortgage, and to take and receive the revenues, tolls, rents, issues and profits thereof, in as full and ample a manner, to all intents and purposes, as they the said Morris Canal and Banking Company, or the stockholders therof, could or might, have, hold, use, enjoy, take and receive the same.</p> <p>That on the twenty-ninth day of March, in the year of our Lord one thousand eight hundred and thirty, before William H. Maxwell, a commissioner to take the acknowledgment of deeds,&c.,personallyappeared Cadwallader D. Golden,with whom the said commissioner was personally acquainted, and who was known to said commissioner to be the president of the corporation styled “ The Morris Canal and Banking Company,” the grantors named in the said indenture, and who as such president is a subscribing witness to the execution of the said indenture : and -the-said commissioner having first made known to him the contents of said indenture, and the said Cadwallader D. Golden being by said commissioner duly sworn, did depose and say, that the seal affixed to said indenture was the corporate seal of the said company, that the- same was so affixed thereto by the authority and order of the board of directors of the said company, and that he as such president subscribed his name as a witness to such execution.</p> <p>That on the--day of March, in the year of our Lord one thousand eight hundred and thirty, the said indenture of mortgage was duly entered of record in the office of' the secretary of state of the state of New-Jersey.</p> <p>That, the interest on the said capital sum of seven hundred and fifty thousand dollars, mentioned in the said indenture of mortgage, and intended to be secured thereby, has been paid by the said “ The Morris Canal and Banking Company” up to the first day of January, in the year of our Lord one thousand eight hundred and forty one; that one half-year’s interest on the said capital sum of money became due and payable on the first day of July last, according to the conditions of the said indenture of mortgage; that the same amounts to the sum of eighteen thousand seven hundred and fifty dollars; that the same, or any part thereof, has not been paid or satisfied ; that the whole amount of the said capital sum of seven hundred and fifty thousand dollars, with interest for the same from the first day of January, eighteen hundred and forty-one, remains unpaid and unsatisfied.</p> <p>That the said The Morris Canal and Banking Company have at all times possessed and enjoyed, and that the said company do still possess and enjoy, all and singular the said canal and the said mortgaged lands and premises, appendages and appurtenances, and chartered rights of said company, and that they have always received, and still do receive, the rents, issues and profits thereof.</p> <p>That the complainant has been informed and believes, that the said The Morris Canal and Banking Company, by their certain indenture of mortgage, bearing date the seventh day of October, eighteen hundred and forty, mortgaged to the State of Indiana, one of the United States of America, all the several tracts or parcels of land and premises, situated, lying and being in the counties of Warren, Sussex, Morris, Passaic, Essex and Hudson, constituting the Morris Canal from the Delaware river to the Hudson river, together with all the lands, locks, inclined planes, docks, wharves and appertenances thereunto belonging, and being part of the premises mortgaged to the complainants as aforesaid; which said mortgage appears to be conditioned for the payment of nine hundred and sixty thousand dollars, and for the payment of certain other sums of money, and for the return of certain stocks, and for the delivery of a certain quantity of iron, as in said mortgage mentioned and set forth; but the complainant insists and charges, that the said indenture of mortgage to the State of Indiana, is subsequent in date and registry to the complainant’s mortgage, and that the complainant’s mortgage is entitled to priority in payment over the same.</p> <p>That the complainant has been informed and believes, that the said “ The Morris Canal and Banking Company have executed and delivered to the State of Indiana a certain other mortgage, bearing date on or about the sixth day of October, in the year eighteen hundred and forty, which mortgage purports to be of and for the Morris Canal from Newark to Jersey City, with the appertenances, lands, docks and wharves, and being also for part of the premises mortgaged to the complainant, as aforesaid, and is conditioned for the delivery by the said Morris Canal and Banking Company to the said State of Indiana, of one hundred and ninety thousand dollars of the five per cent. Indiana sterling bonds, according to contract between the parties; that is to say, forty thousand dollars on the first day of January, eighteen hundred and forty-one ; fifty thousand dollars on the first day of July, eighteen hundred and forty-one; fifty thousand dollars on the first day of January, eighteen hundred and forty-two; and fifty thousand dollars on the first day of July, eighteen hundred and forty-two; but the complainant insists that the said last mentioned mortgage, is subsequent in date and registry to the complainant’s said mortgage, and that the complainant’s mortgage is entitled to priority in payment over the same.”</p> <p>The bill then sets out several judgments against the said “The Morris Canal and Banking Company;” one in the supreme court of judicature of the state of New Jersey, in the term of September, eighteen hundred and forty-one, for eleven thousand dollars and up wards,besides costs,in favor of William Curtis Noyes, Thomas G. Talmadge and Henry Yates; a judgment in the said supreme court against the said company,in the same term of September, in favor of Abraham Richards and David Selden, for tbe sum of thirty-nine thousand three hundred and ninety-five dollars and fifteen cents, or thereabouts, besides costs of said suit, and which remain uncancelled of record.</p> <p>The prayer of the bill is, that the said, “ The Morris Canal and Banking Company” may be decreed to pay to the complainant, as such trustee, as afoi*esaid, the said principal sum of seven hundred and fifty thousand dollars, mentioned in and intended to be secured by his said indenture of mortgage, and also the said sum of eighteen thousand seven hundred and fifty dollars of interest money due on the said principal sum as aforesaid, with the difference in the rate of exchange between the city of Now York and tbe city of Amsterdam, where tbe said sums are payable, and all interest moneys to grow due on tbe aforesaid principal sum, with tbe difference of exchange as aforesaid, together with all the complainant’s costs and charges in this behalf sustained, by a short day to be appointed by this honorable court, and in default thereof that the said defendants, and each of them, and all persons claiming or to claim under them or either of them, may be foreclosed of and from all equity of redemption and claim of, in and to all and singular tbe said mortgaged premises mentioned and contained in the complainant’s said indenture of mortgage, and every part and parcel thereof, with the appertenances, and may deliver over unto the complainant all deeds, demises, writings, books, records and archives relating to or concerning the same, and that all and singular the said canal of the Morris Canal and Banking Company, together with all and singular the dams, aqueducts, locks, planes, culverts, bridges, towing-paths, embankments, basins, wharves, docks, waters, water-courses, machinery, privileges, appendages and appertenances thereto belonging or appertaining, and all the chartered rights of the said company, and all the tolls, income, revenues and profits accruing, or which at any time hereafter shall or may accrue or arise from the said canal; and also all the lands, tenements and other properties of them the said Morris Canal and Banking Company, whatsoever and wheresoever, and whereof the said company was seized or .possessed on the said twenty-ninth day of March, eighteen hundred and thirty, the time of the date and execution of the complainant’s said indenture of mortgage, and mentioned and contained in or comprehended thereby, may by the order and decree of this court be sold, and out of the moneys arising from a sale thereof the complainant may be paid for the benefit of the aforesaid lenders thereof, the aforesaid capital sum of seven hundred and fifty thousand dollars, mentioned in and intended to be secured by the complainant’s aforesaid indenture of mortgage, and also the said sum of eighteen thousand seven hundred and fifty dollars now due and unpaid for interest on the said capital sum, as aforesaid, and all the interest money hereafter to grow duo on the said capital sum, with the difference in the rate of exchange, as aforesaid, together with all the complainant’s costs and charges in this behalf sustained, and that the complainant may have such other and further relief in the premises as shall be agreeable to equity and good conscience.</p> <p>. The complainant took a decree pro oonfesso, bearing date the twenty-ninth day of January, eighteen hundred and forty-two, against all the defendants except the said State of Indiana.</p> <p>On the twelfth day of July, eighteen hundred and forty-two, the State of Indiana filed an answer to the complainant’s bil</p> <p>The answer admits the existence of a supposed indenture of mortgage, purporting to¿be made by the Morris Canal and Banking Company to the complainant, as set out in his bill of complaint, but insist, by way of defence, that the said mortgage is usurious and void ; that if valid, the complainant, being a mere trustee, cannot maintain a suit thereon in his own name, but must unite with him his cestui que trusts. That the complainant’s mortgage is a lien only upon that part of the canal between the city ot Newark and the river Delaware, and that that part of the canal lying between the city of Newark and Jersey City, with the docks, wharves and piers connected therewith, were constructed, and the land purchased, after the date of the complainant’s mortgage, and were not included in or covered by the same. That the feeder of the said canal, extending about three miles in length, from Ryerson’s pond to the canal at Pompton, was excavated, and the titles to the lands over which the said feeder runs were purchased, after the date of the complainant’s mortgage, and that the said mortgage is no lien thereon.</p> <p>The answer also sets out various mortgages executed by the. Morris Canal and Banking Company to the said defendants, upon the canal and its appendages, which it insists are valid liens upon the entire work, and are the first incumbrances upon that part of the canal between Newark and Jersey City, with its vdiarves, docks and piers, and also upon the Pompton feeder.</p> <p>Admits the several judgments stated in the bill, but insists that the defendants’ mortgages are entitled to priority over the said judgments. Denies all fraud, &c.</p> <p>To this answer the complainant filed his replication in the usual form.</p> <p>On the eleventh of August, eighteen hundred and forty-two, the complainant entered the usual rule to close testimony. No testimony -was taken by eithei party within the time limited by the said rule.</p> <p>At October term, eighteen hundred and forty-two, the agent of the State of Indiana presented a petition for leave to file a supplemental answer, in order to set forth certain facts to establish usury in the complainant’s mortgage, which were unknown to the defendant at the time of filing the answer; and also for further time to take testimony. The court, after argument, allowed fifty days from the time for the examination of witnesses touching the matters set out in the answer, excepting such parts thereof as relate to the usury therein set forth, but denied the remaining prayer of the petition.</p> <p>Depositions having been taken by both parties, the canse came on for final hearing at July term, eighteen hundred and forty-three, upon bill, answer, replication and proofs.</p>

<p>As to parties who are necessary. Husband and wife gave a bond and mortgage ou the property of the wife to secure the bond. The husband died. On a bill to foreclose the mortgage, neither the heirs at law nor the personal representative of the husband are necessary parties.</p> <p>Usury. Construction put upon a bond given to a building loan association in connection with the articles of the association.</p>

<p>A public officer, acting under the process of this court, will not be restrainedf for the purpose of aiding the complainant in a proceeding in a court of law', which, in the opinion of the chancellor, is unlawful or unnecessary.</p>

<p>One who is next of kin, or a legatee, or creditor, cannot file a bill against the surviving partner of a testator, or intestate, for the sole purpose of compelling him to account and settle with the personal representative of the deceased partner the partnership accounts.</p> <p>A creditor of the testator, or intestate, need not make anybody but the personal representative a party in a bill to recover his debt; but if there are any persons who have possessed the estate, or any debtors of the deceased in collusion with the representative, the creditor may make them parties, and follow the assets, and demand an account against them.</p> <p>In suits bv a legatee next of kin, or creditor, against an executor or administrator, a debtor of the deceased is a proper party where a special case is made showing that there is, in the particular case, a propriety in departing from the general rule, in order to afford the complainant adequate relief. When there are unsettled accounts with a surviving partner of tlio deceased, it is a special case, and an exception to the general rule, and such partner is a proper party, in order to take an account of the personal estate entire.</p> <p>A bill filed by a legatee or next of kin against an administrator of an intestate and a surviving partner of an intestate, praying for a settlement of the partnership accounts, and that the surviving partner may account to the complainant for the veuls and profits of real estate owned by him and his deceased partner, i» multifarious.</p> <p>Each party decreed to pay his own costs, each being in default.</p>

The bill in this cause was filed in the name of a feme covert, (claiming to be a residuary legatee under the will of her father, Enoch Dunn, deceased,) and of her husband, against the acting executor of the will, and the other residuary legatees therein named, for the recovery of certain residuary legacies under the will. To this bill a general demurrer was filed, and the cause was heard upon the demurrer.

<p>In contemplation of marriage, articles of agreement were entered into between S. S. W., of the first part, M. A., of the second part, and S. A. and G. A. of the third part; and the said M. A. did assign and transfer to the saidS. A. and G. A., as trustees, the sum of $4500 upon this trust, to place the same at interest on bonds, or bonds and mortgages, or invest it in bank stock, insurance stock, or public securities, and the net dividends, interest, and profits thereof to receive, from time to time, to the use of the said M. A., during the joint lives of the said S. S. W. and the said M. A., and the same net dividends, interest, or profits, to pay over, from time to time, to the said M. A., for her sole and exclusive use, during the joint lives of the said S. S. W. . and saidM. A.; and if the said M. A. should survive the said S. S. W., then to deliver and pay over, as well the principal, stock, and money aforesaid, as the interest, dividends, and profits, then due and accruing thereon, to the said M. A., to her sole use aud behoof for ever; and if the said M. A. should die in the lifetime of the said S. S. W., leaving children, then to pay and deliver over the same, interest, dividends, principal, and profits, to such children as should survive her, to their sole use, equally, as tenants in common; aud if any of the said children should be under age at the death of the said M. A., to reserve the delivery and payment of its share until such child should be married or become of age, whichever might first happen.</p> <p>After the intermarriage of the said S. S. W. and M. A.,M. A. died, leaving one child. S. S. W. was appointed guardian of the child, and when it was eleven years of age, filed this bill, claiming that his ward was entitled to the interest of the $4500, and praying that the said trustees might be decreed to account to him, as guardian, and pay over the said interest which had accrued from the death of the mother.</p> <p>Held, that by the construction of the marriage article the interest was not to be paid until the child should be married or become of age, and that the guardian was entitled to no part of the fund, there being no allegation in the bill that it was required for the maintenance, support, or education of the child.</p>

The complainants, in their bill of complaint, -set forth, that their father, Joseph Yandoren, late of the county of Somerset, was seized at the time of his death of a large and valuable real •estate, consisting of divers tracts of land, particularly described in said bill; that being so seized thereof, he departed this life intestate, about the year eighteen hundred and one, leaving Sa-^ ■rah Yandoren his widow, .and four sons and three daughters his heirs at law, most of…

<p>Whether the court will entertain a bill for alimony independent of the statute, except as incidental to some other relief.— Query.</p> <p>The statute confers jurisdiction for alimony, and the power of the court to grant relief is confined to the cases mentioned in the statute.</p> <p>Although the wife leaves her husband without cause, if she returns, the husband is bound to provide for her suitable maintenance aud support.</p> <p>Allowance fixed without reference to a master, the amount of the husband’s estate being before the court.</p>

<p>If one tenant in common occupies the whole estate, claiming it as liis own, it is an ouster of his co-tenant, who must first establish his right at law, and thus recover the mesne profits — for one tenant is bound to account to another only as his bailiff appointed by contract, express or implied.</p> <p>Where one tenant in common actually receives the rents, issues, and profits, then he may be compelled to account for such profits actually received.</p> <p>Where one tenant in common occupies the whole estate, without claim on the part of his co-tenants to be admitted into possession, he is under no obligation to account — for he had a right to such occupancy.</p> <p>Where a tenant in common occupies a portion of the premises, and his occupancy is of a character to exclude his co-tenant from any participation in the enjoyment of it, he is bound to account to such co-tenant.</p>

<p>The testator devised as follows; “Second. I give and devise to my beloved wife Phroanna the use of my homestead, to consist of four acres, whereon I now reside, as long as she remains my widow. I also give to her one half of the income of my estate, both real and personal, as long as she remains my widow; but should she marry, she then shall have one-third of the proceeds of my estate, both real and personal, to her own and separate use, and not at the control of her husband. I also give to my said wife Phroanna such of my household furniture as she brought to me at my marriage, and also such of my household furniture as she may choose.” And after other devises and bequests, the will proceeds — “ Fifth. It is my will, and I do hereby authorize my executors to sell and dispose of all my lands, real estate, and personal property, not herein disposed of, as soon after my decease as can conveniently be done; also, after the death of my wife, to sell and dispose of the homestead, with the four acres attached, being the same herein before devised to my wife during her widowhood.”</p> <p>Held, that the executors had power to sell the homestead upon the marriage of the widow.</p>

Gershom H. Coursen, of New York, one of tbe executors of the last will and testament of Abraham Coursen, deceased, took an order at the term of April, eighteen hundred and forty-three, .to show cause on the first of May, why the original will and codicil should not be admitted to probate. The testator resided and died in the city of New York.

<p>Under the mechanic’s lien law, the claimant filed his bill of particulars, with an affidavit annexed, alleging that the amounts in the bill set forth were for casings, blinds, &.c., and materials furnished in the repairing, altering, erecting, and finishing of the buildings in the claim described. Held, that this did not create a lien under the statute.</p> <p>A porch, or piazza, is an “ addition erected lo a former building,” and is the subject of a lien. Folding-doors are not an “ additionwithin the meaning of the act — it is an alteration only.</p> <p>The mechanic lias a lien only upon the building or “addition” in the erection of which he has furnished labor or materials, and on no other,</p> <p>A mechanic cannot have a lien for converting a garret into bed-rooms — it is ail alteration only.</p> <p>The inode of sale designated so as to secure the benefit of the liens without impairing other encumbrances.</p>

<p>* The practice of sending ordinary matters to a jury for their decision, ought to be discouraged. But in important cases, where the evidence is so contradictory as to raise serious doubts on the mind of the court as to matters of fact, it is proper to direct an issue, or order a suit at law.</p> <p>Issue awarded, with special directions touching the conduct of the trial; and leave given for a special jury.</p>

<p>Bill for an injunction to restrain proceedings at law filed,, and an injunction issued, on the twelfth of December, eighteen hundred and forty-three. The defendant filed his answer on the third of January, eighteen hundred and forty-four, and gave notice of a motion to dissolve the injunction at the ensuing January term. On the eighteenth day of January the complainants filed exceptions to the defendant’s answer for insufficiency. The complainants’ counsel resisted the hearing of the motion to dissolve, upon the ground that exceptions to the answer were pending undisposed of. The court directed the argumentto proceed, and the exceptions to the answer to be argued at the same time.</p>

<p>The rule that in injunction bills the particular title and interest of the com. plainant must be-set forth, is more especially applicable to cases of waste.</p> <p>But in eases of trespass and nuisance, the title and estate of the complainant are set out with .sufficient .certainty in a bill for an injunction, if the complainant alleges.himself .to be the owner of the premises in .fee simple by purchase, a-nd-.to.be in possession.</p> <p>A greater degree of precision in oases of .trespass or nuisance is not required, especially where it is not alleged in the bill that the defendants make any pretence of right in themselves.</p> <p>In oases of trespass or nuisance, an injunction will not be granted, unless the injury about to be .committed is of a serious, permanent and irreparable character, such as cannot well be compensated in damages, and which there, fore requires the extraordinary power of chancery to prevent its commission.</p> <p>Where it appears that the stream, a part of which is sought to be diverted, runs through a corner of the complainant’s farm, a quarter of a mile from his dwelling; that it runs through low, swampy, marshy ground, and is not nor has ever been applied to any practical use, equity will not interfere by injunction to prevent the diversion.</p>

<p>After sale upon an execution out of this court, and delivery of the deed, the court may, upou proper case made, open the sale upon petition.</p> <p>Under the practice of this court, a sale, after delivery of the deed, will be opened on petition upon the same grounds as, under the English practice, a sale wonld be opened after confirmation.</p> <p>In this case, the property was purchased at a low price by the mortgagee. The mortgagor was an aged woman, and the only party to the suit, and it was proved that she was misled as to the nature of the process served upon her.</p> <p>A resale will be ordered when the mortgaged premises have been sold greatly below their value, ami bought in by the mortgagee, if the mortgagor, or those standiug in his place, have been misled by the mortgagee, or even by a third person, in reference to the foreclosure of the mortgage, and in con" sequence thereof did not attend the sale.</p> <p>When the mortgagee is the purchaser, the court will regard an application for resale with more indulgence than when a stranger is the purchaser.</p>

<p>On the twenty-fourth of 3 anuary, eighteen hundred and forty-four, the receivers of the Morris Canal and Banking Company reported to the court, that the existing lease of the canal being about to expire on the first day of April, then next, they had received various proposals for renting the same; that upon deliberation, they had decided to give the term to Mills and Sykes, the present lessees, subject, however, to the approval and confirmation of the court, and asking the direction of the court in the premises.</p> <p>On the same day, Wilson Knott filed his petition to the chancellor, under oath, stating that the said receivers had caused advertisements to be published in several newspapers of the state, notifying the public that written proposals would be received by them at their office in Jersey-City, until the eleventh day of January instant, for leasing the Morris Canal and the feeders, from the termination thereof at Newark, to the Delaware river, for the term of one year from the first day of April next. That the petitioner, on the said eleventh day of January, put in written proposals for the said lease, offering to pay therefor three thousand dollars, and to give the requisite security for the fulfillment of the contract.</p> <p>That the only proposals for the said contract besides the petitioner’s, were one from A. P., proposing to lease the said canal for two thousand and twenty dollars; on® from D. K. A., proposing to lease the same for one thousand five hundred and twenty-five dollars, and one from Mills and Sykes, proposing to lease the same for one thousand five hundred dollars, for the year.</p> <p>That after the biddings were opened, and after the day limited for receiving bids was past, the said Mills and Sykes were permitted to increase their bid, without an opportunity of further bidding being afforded to others. That the petitioner is ready to' fulfill the contract on his part, agreeably to his bid, and to the said proposals; or if the bidding should be opened, lie is prepared to offer a larger sum than has yet been bid for the said lease.</p> <p>The prayer of the petition is, that the receivers be directed to execute to the petitioner a lease for the said canal, agreeably to the term of the said proposals and his bid, or that the biddings be re-opened, and that the receivers be directed to give public notice thereof ; that in the meantime, the receivers may be restrained from executing any lease for the said canal, and that if they have executed any such lease, that it may be declared inoperative and void, and be ordered to be given up to be can-celled.</p> <p>Upon filing the petition, an order was made that the receivers, and also the said Mills and Sykes, should show cause, on the twenty-seventh day of January instant, why the prayer of the said petition should not be granted, and that the petitioner have leave to examine the receivers upon interrogatories, touching the matters set forth in the petition; that the parties have leave to take affidavits; and that Mills and Sykes, the proposed lessees of the canal, be at liberty to avail themselves of the same rule. An order was also made upon the receivers, to certify to the court all the facts and circumstances relating to the matters set forth in the said petition.</p> <p>Pursuant to this order, the receivers filed their report, accompanied by a lease to the said Mills and Sykes, and pray a confirmation of the same. Interrogatories were exhibited to and answered by the receivers, and depositions of witnesses taken; from which it appears that the receivers, on the twenty-ninth of December, eighteen hundred and forty three, resolved to advertise for proposals for leasing the canal and its appendages for one year from the first of April, eighteen hundred and forty-four; and that they advertised accordingly that they would receive proposals at their office in Jersey City, until the eleventh of January, then next.</p> <p>That proposals were delivered to one of the receivers from the petitioner, offering to lease the canal with its appendages for three thousand dollars; from Daniel K. Allen, for fifteen hundred and twenty-five dollars ; and from Andrew Parsons, in the evening of the same day, at Paterson, for two thousand and twenty dollars — and that Mills and Sykes made proposals on the same day, to take a lease on certain contingencies at fifteen hundred dollars; none of which propositions were accepted.</p> <p>Prom a conversation of one of the receivers, it became known what proposals had been made, and on the twelfth of January Mills and Sykes further proposed to lease the property for three thousand dollars; and on the thirteenth of January made still another proposition.</p> <p>That the receivers, believing Mills and Sykes the more suitable and competent lessees, and the rent offered by them being equal to that offered by any others, agreed with them upon the terms contained in the lease which they now desire to have confirmed.</p> <p>The petitioner, by his counsel, now complains, that the receivers have acted improperly in disclosing the terms of the sealed proposals, and in entertaining propositions made after the eleventh of January, the time mentioned in the advertisement ; and that they have shown partiality and favoritism in their determination.</p>

<p>The report of a master upon the accounts of receivers requires confirmation, and may be excepted to. Tbe 'several items of- the account may be investigated.*</p> <p>It seems that a creditor is not allowed the costs of proving his claim before the master. But a creditor complaining of the proceedings before the master in settlement of the receivers’ accounts may be allowed his costs, to be paid out of the fund, or by the receivers, at the discretion of the court.</p> <p>Notice should be given of an application on behalf of the creditors, for leave to file exceptions to the master’s report. An order for leave to file exceptions, made without notice, discharged.</p>

Motion to dissolve an injunction to restrain proceedings at law. The chancellor having been of counsel with one of the parties, the cause was heard at his request before Elias Vanarsdale, esquire, one of the masters of the court. The cause was submitted without argument.

<p>Where the purchase money for real estate is paid by a parent, and a son procures the deed to be made to him, without the knowledge or consent of the parent, the son cannot set up title to the land, as an advancement to him on the part of the patent.</p> <p>But if such deed was made to the son with the consent of the parent, the presumption that it was intended as an advancement may be rebutted by parol evidence, by declarations of the parties, and by circumstances cotemporaneous with the transaction itself.</p> <p>The same kind of evidence which is deemed sufficient to raise the presumption of an advancement, is admissible to overcome it. The circumstances relied upon should be convincing, and of a character to leave no reasonable doubt as to the intention of the party.</p> <p>The uninterrupted possession of the parent claiming title adversely to the deed will rebut the presumption of advancement.</p> <p>A resulting trust, which is established by parol evidence, may be destroyed by evidence of a like nature. An express trust, created by writing, cannot be destroyed or defeated by parol.</p>

<p>A party under an attachment for contempt for an alleged breach of an injunction, is not confined to his answers to the interrogatories exhibited to him, but may examine witnesses to exculpate himself from the charge.</p> <p>áhould the depositions on the part of the defendant be taken by leave of the court ? — Quere.</p> <p>The party alleging a contempt of court by breach of an injunction, must make it out clearly to the satisfaction of the court.</p> <p>If the accused deny the contempt, or do not clear±y show it by his answers, the prosecutor may examine witnesses to prove it.</p> <p>The command of an injunction must bo implicitly obeyed, but it is the spirit and not the letter of the command to which obedience is required.</p> <p>An attachment for contempt, being in the nature of a criminal proceeding, costs are not usually allowed.</p>

<p>SS. mortgagee having, before the mortgage debt became due, filed a bill to re. strain the commission of waste upon the mortgaged premises, may, after the mortgage money becomes due, file a supplemental bill, setting out by way of supplement that the money has become due, and praying additional relief, viz. that the equity of redemption may he foreclosed and the mort. gaged premises sold.</p> <p>A strictly supplemental bill is always founded on íáets that have occurred since the filing of the original bill. These may be necessary, either to aid the complainant in obtaining the relief sought, or in obtaining new or additional relief.</p> <p>A supplemental hill should be used in preference to an original bill, whenever it can equally subserve the purposes of justice.</p> <p>Where the new matter charged in a supplemental bill does not affect the rights or interests of a mere formal party to the original bill, it is not necessary to make-him a party to the supplemental bill,</p> <p>it is irregular to .file a supplemental bill without leave for that purpose first obtained of the court.</p> <p>3But where no objection has been taken to the regularity of the proceedings on this ground, it will be considered as waived by a vciluntary appearance and ■demurrer by the defendants.</p>

This bill was filed by legatees under the will of John Terrill, deceased. One of the objects of the bill was, to recover from the surviving executor the dividends upon certain turnpike stock, and to have the stock itself divided among the legatees. The bequest was as follows. “ Item.

<p>By the English practice, exceptions to the accounts of a receiver as stated by a master, should be taken before the master, while the account is in his possession, and before he makes his report.</p> <p>This practice has been generalty acted on in this state; it is beneficial, and might safely be pursued in all ordinary cases. But there has been no actual recognition of the rule, except in cases where a draft of the account was served, and the party omitted to make any exceptions or suggest any alterations to the master.</p> <p>In a proceeding. under a new statute, a party who is honestly seeking his rights should not be cut oif by a mere technical rule.</p> <p>In a proceeding .under the act to prevent frauds by incorporated companies, the complainants and all the applying creditors constitute one party. The receivers are their common agents, and the solicitor on record of the complainants is their common solicitor, and regularly all orders and proceedings should be in his name.</p> <p>It is irregular for any one of the creditors to appear or act by his own solicitor, without leave of the court for that purpose first obtained.</p> <p>If any one of the creditors is so situated as to render it necessary that he should be represented separately before the court, application for that purpose should be made; and if substantial reasons are assigned to the satis■faction of the court, the application will be granted.</p>

Bill for relief, filed October first, eighteen hundred and forty-two. The bill states that the Monroe Manufacturing Company, by deed bearing date on the thirty-first day of August, eighteen hundred and thirty-nine, for the consideration of five thousand dollars, conveyed to the complainant a lot of ground in Paterson, in the bill of complaint particularly described, with a mill and buildings thereon, which said deed was duly acknowledged and recorded.

Bill by one of the next of kin of an intestate, against the administrator, for an account, and for a distributive share of the estate. The cause was heard upon bill,- answer, replication and proofs.

<p>This is a bill filed to foreclose a mortgage. On the 27th of May, 1842, the bond and mortgage were assigned to Jasper S. Scudder, in consideration of the sum of seven hundred and fifty dollars. On the 5th of July, 1842, Scudder made the following declaration of trust: “ This mortgage is held by me as security for the payment of the following sums of money by ‘ the Trustees of the Pirst Presbyterian Church of South Trenton’ unto the persons herein mentioned, and is to be surrendered unto the said trustees, or their successors, as soon as the persons mentioned below are paid the sums annexed to their respective names, with interest from the first day of June, eighteen hundred and forty-two, or such claims are otherwise satisfied.</p> <p>Said church owes Thomas J. Stryker, one hundred dollars.</p> <p>Ditto Jasper S. Scudder, one hundred dollars.</p> <p>Ditto Samuel Brearley, one hundred dollars.</p> <p>Ditto Titus £ Brothers, one hundred dollars.</p> <p>Ditto George S. Green, one hundred dollars.</p> <p>Ditto William B. ITanson, two hundred and thirty-six dollars and sixteen cents, making in the aggregate the sum of seven hundred and thirty-five dollars and sixteen cents (785.16). (Signed) Jasper S. Scudder.</p> <p>Trenton, July 5, 1842.”</p> <p>“ The Trustees of the First Presbyterian Church of South Trenton” held the equity of redemption in the mortgaged premises. The complainant has filed this bill claiming the benefit of the trust. The trustees alone resist the claim of the complainant. They set up in their answer, that the assignment was made to Scudder for their benefit, and merely to secure them against a supposed defect of title, and that the money paid was their money, and that Scudder had no right to make the declaration of trust.</p>

<p>Direct evidence is not required to sustain the charge of adultery.</p> <p>The circumstances to sustain the charge must be such as to lead the guarded discretion of a reasonable and just man to the conclusion that the crime ha's been committed.</p>

<p>On the 21st August, 1835, H. G. and G. S. B. mortgaged to J. M. N. a tract of sixteen acres, to secure purchase money. On the 19th October, 1835, H. G and wife conveyed his undivided half of the sixteen acres to the said O. S. B. On the 20th July, 1837, C. S. B. purchased a tract of five, and a half acres adjoining the sixteen acre tract, and, to secure the purchase money, mortgaged to his grantor, J. B. 0., the sixteen and five and a half acres, except a strip of one acre on the easterly side of the sixteen acre tract. On the 5tli April, 1038, O. S. B. conveyed one equal undivided half of the sixteen and five and a half acres to A. B., subject to the mortgages. On the 28th November, 1838, A. B. conveyed one half of his interest in the sixteen and five and a half acres (being one undivided fourth part) to E. M. On the 9tli December, 1838, C. S. B., by another deed, conveyed to E. M. the remaining fourth part of the sixteen and five and a half acres. On the 5th of September, 1838, C. S. B. conveyed to J. T. the one undivided fourth part of the sixteen and five and a half acres. On the 7th of September, 1838, O. S. B. conveyed the remaining fourth part to said J. T. On the 30th June, 1810, J. B. C., under a decree of this court, sold the equity of redemption of J. T. and E. M. in all the premises, except the one acre strip, which the decree did not cover. The said H. G. became the purchaser, and received sheriff’s deed. A. S. G. holds, by several mesne conveyances under H., the equity of redemption in all the premises, except the one acre strip. Horace Galpin holds, under J. T. and E. M., the equity of redemption in an equal undivided half of the one acre strip.</p> <p>Held, that the strip of land is first liable to contribute to the payment of the J. M. N. mortgage. As to the equities between the mortgages to J. B. C. and J. M. N , if it is necessary, in order to secure the payment of the J. O. >T. mortgage, that the strip should be first sold, J. O. M. may so insist. But if the property, considered common by both mortgages, is sufficient to satisfy both, then J. B. C. cannot insist upon the strips being first sold. As between A. S. G. and Horace Galpin, the former has a right to a decree that the one acre strip shall be sold first, and applied to pay the J. M. N. mortgage.</p> <p>A defendant set up that he held a mortgage on the premises. It appeared in evidence that the mortgage had been executed to the defendant as an indemnity, and had been assigned to another party, who produced it on the trial. The defendant insisted he had an equitable interest in the mortgage. Held, that such a claim was not consistent with his pleadings, and therefore could not be maintained.</p>

Bill for foreclosure and sale of mortgaged premises. Hearing, upon the equity reserved, after a trial at law under the direction of the court, to determine the mortgagor’s title to a part of the mortgaged premises, and a verdict adverse to such title. The chancellor having been of counsel with one of the parties, the cause was, at his request, heard before Elias Yanarsdale, esquire, one of the masters of the court, at April term, eighteen hundred and thirty-six.

<p>Bill for an injunction to restrain proceedings at law, filed on the sixth of June, eighteen hundred and forty-two, and an injunction issued. Answer by part of the defendants. Motion to dissolve the injunction upon the denial of the equity of the bill by the answer. Hearing at April term, eighteen hundred and forty-four.</p>

Injunction bill, filed on tbe fifteenth of May, eighteen hundred and forty-four. The bill charges, that the complainant is seized in fee and possessed of a tract of cedar swamp, in the township of Northampton, in the county of Burlington, containing ten .acres, which has been owned and possessed by the complainant, and those under whom he claims, for upwards of sixty years, during which time they have exercised acts of ownership over it without interruption or molestation.

This cause came on for hearing at April term, eighteen hundred and thirty-six, upon a petition on the part of the defendant to open a final decree made at July term, eighteen hundred and thirty, in favor of the complainant, upon a bill filed by him for an account and dissolution of partnership.

<p>The granting, or refusing of injunctions, are matters resting in the sound discretion of the court, and, consequently,no injunction will be granted whenever it will operate oppressively, or inequitably, or contrary to the real justice of the case, or where it is not the fit and appropriate mode of redress under all the circumstances of the case, or where it will, or may work, an immediate mischief or fatal injury.</p> <p>This court will not interfere by injunction to prevent a corporation from enforcing an assessment, by declaring its proceedings illegal, where the consequences would be injurious to the corporation, and of no substantial benefit to the parties complaining.</p> <p>An injunction ought not to be granted where the benefit secured by it to one party is but of little importance, while it will operate oppressively, and to the great annoyance and injury of the other party, unless the wrong complained of is so wanton and unprovoked in its character as properly to deprive the wrongdoer of the benefit of any consideration as to its injurious consequences.</p>

<p>The purchase of a mere equity of redemption purchases a right, and does not assume an obligation to redeem. He may at his pleasure give up the mortgaged premises in satisfaction of the incumbrance.</p> <p>He s liable to the extent of the value of the premises, and not beyond it.</p> <p>But if by the terms of the sale the mortgage money is to be taken as a part of the consideration, equity raises upon the consciAice of the purchaser an obligation to indemnify the mortgagor against the mortgage debt.</p> <p>And if the debt be afterwards paid by the mortgagor, equity will compel the purchaser to refund the money so paid</p>

<p>While a writ of injunction remains in force, its commands must be implicitly obeyed. The party injoined is not at liberty to speculate upon the inters, tion, or question the authority of the court.</p> <p>An injunction should-always be plain and-certain on-the face of it, so that'the party may understand it without- reference to the bill filed.</p> <p>í-f, on- inspection-of the bill^ the-injunction is found to be too broad, the dev ibndant is not to' abridge it at his discretion. His remedy is to apply for such a modification of it as is suited to the’ case made in the bill.</p>

<p>Individuals entitled to the fund, and interested in taking the accounts which constitute it, are necessary parties to the suit.</p> <p>A decree should be conclusive upon all persons interested, and all such persons should be parties.</p> <p>J. B. K. and W. K. were appointed guardians of the property and persons of infant children. J. B. K. gave to W. K. his bond and mortgage for $2501), with interest, in one year from date, and on the receipt of the bond-and mortgage, W. K. gave to J. B. K. an agreement, as follows: “Whereas John B. Keeler hath this day executed and delivered to me, William Keeler, of the city of Philadelphia and state of Pennsylvania, a bond, or writing obligatory, in the penal sum of $5000 lawful money of the United States current in New Jersey, conditioned for the payment of two thousand five hundred dollars, like lawful money, in one year from the date thereof, with lawful interest of the state of New Jersey from date till paid, and also a deed, or indenture of mortgage, on the farm and mill situated at Cook’s mills, in the township of New Hanover, called and known by the name of the Cook’s mill property, for the purpose of securing the payment of the said sum expressed in the condition of the said bond, with its interest. And whereas the said John B. Keeler and I, the said William Keeler, are guardians of the children of John B.Keeler; and whereas the above mentioned bond, or writing obligatory, and deed, or indenture of mortgage, is given by the said John B. Keeler to me, the said William Keeler, to secure tho payment of the money due and to become due to the children of the said John B. Keeler from the estate of their grandfather, Samuel Hartshorne, and which may come to the hands of the said John B. Keeler: now know ye, that I, the said William Keeler, do hereby covenant aud agree, to and with the sa,id John B. Keeler, that if he, the said John B. Keeler, shall pay to the said children their share and shares, as they respectively fall due, and obtain from them, and all of them, a release and discharge from all claims respecting such distributive share of the estate of the said Samuel I-Iartshorne, deceased, then the said bond, or writing obligatory, as well as the said deed and indenture of mortgage, be considered as null and void: and in case a part only of the said children shall release and discharge the said John B. Keeler from his liability at the time the said share becomes due as aforesaid, then the said bond, and writing obligatory, and deed, or indenture of mortgage, shall be considered binding until they shall release, as before described. And when all the said children shall have released as aforesaid, then the said bond, and writing obligatory, and deed, or indenture of mortgage, is to be given up to the said John B. Keeler,”</p> <p>Held, that on a bill filed by J. B. K. against the executor of W. K. to account for moneys which W. K. had received as guardian, proof of the agreement aud bond and mortgage was no defence against an account, and that the construction of the agreement was that the papers were intended as indemnity to W. K. against any loss on account of any legal responsibility which rested upon him in consequence of his joint action with his co-guardian.</p>

<p>If a bond and mortgage are paid by the tenant of the equity of redemption, they are discharged as to all subsequent incumbrances.</p> <p>The tenant of the equity or redemption, by purchasing the mortgage debt, thereby extinguishes the incumbrance on his land.</p> <p>And if the bond and mortgage so paid by the owner of the equity of redemption, be assigned to a third party at his request, they acquire by each assignment no greater efficacy than they would have had if delivered directly to the owner of the equity of redemption.</p> <p>Such assignee conld not have enforced the payment of the debt against the-owner of the equity of redemption, nor could he have claimed priority-against other incumbrances upon the same premises.</p> <p>If such assignee assign the bond and mortgage to a third party at the request and for the benefit of the owner of the equity of redemption,as against him the lien of the second assignee is good. The mortgagees against him, acquired new life on its transfer,but it cannot be restored to its lost priority.</p> <p>The mortgage being but the accessory, when the bond is paid the mortgage-is discharged.</p> <p>The assignee of a bond and mortgage can acquire by virtue of the assignment no greater interest than was held by the assignor; all the equities effecting the assignor pass with the assignment to and against the assignee.</p>

Bill for relief against a sheriff’s sale .of real estate, ,as collusive. Answer by the purchaser, and the person for whose benefit the purchase is charged to have been made, denying all fraud and collusion. The cause came on for final hearing upon the pleadings and proofs, and w.as submitted without argument,

This was a motion to dissolve an injunction, granted upon tho filing of the complainant’s bill, to restrain tbe defendants, Esler and Bruce, from proceeding at law to recover a bond given by tbe complainant. Tbe material facts of tbe case, and tbe grounds relied on for a dissolution of tbe injunction, are stated in tbe chancellor’s opinion.

<p>A legacy given in lieu of dower is not sufficient to charge the legacy upon the land, but it lias some weight in looking for the intestation of the testator in that particular.</p> <p>Where the legacy given is the sole consideration for the right of dower, it raises an equity to have that consideration paid out of the estate, and is some evidence the testator so intended, unless he has made a disposition of his estate not consistent with such intention.</p> <p>If the general tenor of the will favors that intention, the court should enforce the equity.</p> <p>It is an important consideration, in looking for intention, that the personal estate was inconsiderable in amount, and not sufficient to pay debts.</p> <p>It is another consideration, that if it was not a charge, and the widow should on that account be driven to elect her dower, it would disconcert the salutary arrangement which the testator had made in the disposition of his property.</p> <p>It is another consideration, that the legacy was but a fair equivalent for the widow’s dower in her husband’s land.</p> <p>In searching for the intention of the testator, we are not confined to the will itself, but may look at the situation of tile property disposed of) and the persons taking it.</p> <p>The considerations, taken together, that the legacy is given in lieu of dower, and is the only consideration for its relinquishment; that such relinquishment is necessary in order to enable the executors to carry out the will, and secure a cherished object of the testator; that there was no personal estate to ¡jay the legacy, and that the legacy is but an equivalent for the widow’s legal right in the land, are sufficient considerations for the conclusion that the testator intended his whole estate should be bound for the legacy.</p> <p>The testator, after giving a legacy of $1500 to his wife, in lieu of dower, and making no other gift or devise of real estate, orders and directs all bis estate, real and personal, to be sold, and after satisfying and discharging all charges and lawful claims upon the same, the net balance to be disposed of, &c. This makes the legacy a charge upon the whole estate.</p> <p>The testator gave fifteen hundred to his wife, omitting the word dollars. The court will correct the mistake, and supply the omission with the appropriate word to signify the intention of the testator.</p> <p>The will directed the executor to pay the legacy in one year after testator’s death. The executor paid the legacy out of his own funds.' He may reimburse himself out of the estate.</p> <p>A gift of a legacy by a creditor to his debtor does not operate as a release, or extinguishment, of the debt due from the legatee, when the securities of the debt remain uncancelled, and the intention of the testator to annul the debt is not clear.</p> <p>At the testator’s death, J. F. W. was largely his debtor, and was insolvent. By the will, he is left residuary legatee to one-four! (1 of the estate. He died after the testator, and his children claim his residuary share. Held, the executors might deduct the debts due from J. F. W. to testator.</p>

<p>It is not tile- practice to reiterate substantively in a supplemental bill, all the* charges of the original bill, but to set them out by way of reference, amf charge the-new and additional facts by way of supplement.</p>

The principal design of the bill filed in this cause, was to restrain the defendant by a perpetual injunction, from proceed ing at law upon a judgment recovered against the complain ants, upon a sealed bill, given by their testator, and to avoid the obligation as fraudulent.

<p>If an injunction biB has been actually sworn to, the injunction will not be dismissed because the master has omitted to sign the jurat.</p> <p>The operations of large companies should not be arrested by injunction, without notice, except in very plain cases, or where there is a pressing necessity for immediate action.*</p> <p>A charge of waste, whereby the mortgage security is diminished, is always a sufficient ground for an injunction as between mortgagor and mortgagee. Where a farm has been purchased, and is occupied for mining purposes, any necessary or proper use of the property in mining operations is not waste.</p>

<p>Where a suit’is brought by a residuary legatee, íót a settlement' and' distribuí, tion, all the' residuary legatees, or their representatives-, must be made parties.</p> <p>And the rule will not be dispensed with, though one of the residuary legatees has died, leaving his estate insolvent, and no-administrator has been ap. pointed.</p> <p>Where one of two co-executors has died, his representatives are not necessary parties to a bill against the surviving executor' for settlement and distri-. bution.</p>

<p>If a purchaser at a- sheriff’s sale of mortgaged premises, sold by virtue of a decree for the satisfaction of the mortgage debt, purchase as agent for and at the request of the complainant, and take a deed in his own name, with* out paying any part of the purchase money, a resulting trust is raised in favor of the complainant.</p> <p>The receipt in a deed is not conclusive, and where an actual question is raised as to the payment of the-consideration, parol evidence maybe resorted to, to show by whom it was advanced.</p> <p>Attaching creditors do not stand on the samo footing as bona fide purchasers. The latter are entitled to protection on account of the payment of a present consideration without notice; but the rights of third persons are not affect, ed by an attachment or a judgment, though the attaching or judgment creditor may not be affected with- notice.</p>

<p>Where a testator, by his will, creates a trust fund, and makes his three executors trustees — and directs them, or the survivors or survivor of them, to purchase real estate for the creation of the fund — the purchase can be made only by the joint consent of the executors. The will imposes the duty upon the executors, and the survivors or survivor of them, and not upon a majority of them.</p> <p>The ordinary functions incident to the office of executors may be exercised by one of several appointed executors, although the others renounce; yet, at common law, where a power is given, by will, to executors to sell land, and one of them refuses the trust, the others cannot sell.</p> <p>A trustee cannot, at the same time, be seller and purchaser. It is inconsistent with the faithful execution of his trust.</p> <p>The will authorizes the executors to invest in productive real estate. A vacant lot, which is good for nothing, but for the use of its soil in making bricks, is not productive real estate.</p> <p>The will authorizes the executors to invest in productive real estate in the discretion of the executors. The trust is for the benefit of an infant. The infant may question the discretion which the executors have exercised, and appeal to a court of equity to determine whether it has been exercised soundly and honestly. An executor or trustee cannot have a power conferred upon them not in some measure subject to the control of a court of equity. If a testator declares that the executor shall not be subject to the control of this court, the court would disregard such a provision in the will</p> <p>It is the law which gives to the testator the power of disposing of his property by will, and the execution of that will must be submitted to the law. It cannot be taken out of its control by the caprice of the testator.</p> <p>A cestui que trust has a right to have the discretion confided to the executors exercised in a proper, reasonable, and honest maimer, and the court cannot be deprived of its jurisdiction to see that the rights of the cestui que trust are maintained and respected.</p> <p>Where an account is objected to, the party excepting must specify the particular items to which he excepts. He cannot, by a general exception, impose the duty upon the court of examining every item in the account to ascertain its correctness.</p> <p>Where executors are obliged to foreclose a mortgage, they may buy in the property for the benefit of the estate, if it is struck off at a price insufficient to satisfy the mortgage debt, provided they act in good faith to protect the estate.</p> <p>When the will directs the executors to invest the residue of the personal property, with the interest accruing thereon, in good productive real estate, at their discretion, as soon after the testator’s decease as to them should seem most to the interest of the estate, it is the duty of tho executors, until such investment can be made, to keep the personal estate at interest upon good security, and they must be charged with interest after allowing them a reasonable time, under the circumstances, to invest.</p> <p>Where promissory notes, or other obligations, not properly secured, come into the hands of executors, it is thoir duty to collect and secure them. If they fail to do this, and the debts are lost through their negligence, they must be charged with tho loss.</p>

<p>The receivers appointed under the act, entitled, “An act to prevent frauds by incorporated companies,” derive their power wholly from the statute. They have no authority which is not conferred by the act.</p> <p>It is not necessary that the power should be expressly conferred. It is sufficient if it can be fairly implied from the general scope of the statute, or as incident to a power expressly giveu.</p> <p>The receivers, have power to administer oaths to witnesses in matters pending before them, which they are empowered by the statute to hear and determine.</p> <p>The receivers in the admission or rejection of testimony, are to be governed, by the rules of evidence.</p> <p>The rules of evidence are generally the same in equity as at law.</p>

<p>* Though the operations of large companies ought not ordinarily to be arrested by injunction without notice, yet it is a matter resting in the sound discretion of the court; and if a master, in the exercise of his discretion, has allowed the injunction without notice, the chancellor will not therefore, as of course, dissolve the injunction, although he might have exercised the discretionary power differently.</p> <p>It is expedient, but not essential to the validity of an affidavit, that the place where the affidavit is taken should be inserted in the jurat.</p> <p>The place of taking an affidavit is a matter in pais, and if legally questioned must be proved aliunde.</p> <p>Where the complainant in an injunction bill relies on his own oath, the Charges in the bill, and the affidavit to verify them, should be direct and positive. They must not be such as can only be made sufficient by the aid of presumption.</p> <p>In all cases of waste or nuisance, it must appear clearly that the party has personal knowledge of the material facts charged, or he must produce sup. plemental proof.</p> <p>An irregularity in the bill or affidavit upon which an injunction is allowed, is ’-o', waived by filing an answer and moving to dissolve the injunction, if the answer is not relied on in support of the motion to dissolve.</p> <p>If an injunction is allowed upon an insufficient affidavit, it is not merely an irregularity, but an error, to which the principle of waiver does not apply.</p> <p>A deficiency in the verification of the charges in the bill, cannot be supplied apon the hearing of a motion to dissolve the injunction.</p>

<p>Bill for the recovery of a legacy bequeathed to the complainant by the will of Ann Wilson, bearing date on the seventeenth day of March, eighteen hundred and nineteen. The bill states that the will was made by virtue of an ante-nuptial agreement, entered into by the testatrix previous to her marriage with her intended husband, in the words following, to wit: “ Memorandum of an agreement made this seventh day of February, in the year of our Lord seventeen hundred and ninety-nine, by and between R. W. of the township of East Windsor, of the one part, and A. B. of the other part, witnesseth, that whereas there is a purpose of marriage between the said R. W. and A. B, the said W. covenants and agrees with the said A. B. that she shall have the sole right of all the money, goods and chattels, rights and credits she is now possessed of, for to will and bequeath the same to whom she pleaseth, if the said A. B. should die before the said W.; and if the said W. dies before her, she is to have the whole of all the goods,, chattels, moneys, rights and credits, and no part of what she brings to him to be his estate. And it is further agreed to, by the said A. B. to and with the said W. that she is not to have any right of dower out of the said "W.’s estate, if he should-die before her, excepting what the said "W. bequeaths and leaves her.”</p> <p>That the said R. W. afterwards, and on the day of the date of the said articles of agreement, intermarried with the said A. B. and departed this life about the twenty-fifth day of February, eighteen hundred and twenty, leaving her surviving.</p> <p>That the said testatrix appointed Rescarrick Moore, and his-wife Sarah Moore, executors of her said will, who duly proved the same. And that the said Rescarrick Moore possessed himself of the personal estate and effects of the said testatrix, to an amount more than sufficient to pay her just debts, funeral and testamentary expenses and legacies. That the said Rescarrick Moore died on or about the first day of May, eighteen hundred and thirty-five, having appointed the defendant sole executor-of his will, who duly proved the same. That all the assets belonging to the estate of the said Ann Wilson, remaining unadministered in the hands of the said Rescarrick Moore, came to-the hands and possession of the said Henry A. Moore; and-that the said Henry A. Moore possessed himself of the personal estate and effects of the said Ann Wilson, to an amount more than sufficient to satisfy her legacies, remaining unsatisfied by the said Rescarrick Moore.</p> <p>The defendant, by his answer, denies all knowledge of the ante-nuptial agreement set out in the complainant’s bill; states that at the time of executing the pretended will, she was a married woman; denies that the said Ann Wilson was possessed of any personal estate at her death; states that by written-articles of agreement between R. W. the husband of the said Ann Wilson, and the said Rescarrick Moore and Sarah Moore, the whole of the personal estate of the said Ann Wilson was transferred to the said Rescarrick Moore and Sarah Moore, upon consideration of their maintaining her during her life; that none of her estate came to the hands of the said R. M. as her executor, or to the hands of this defendant.</p> <p>Hearing upon bill, answer, replication and proofs.</p>

<p>Equity -will enforce a post nuptial settlement made in pursuance of a parol ante-nuptial agreement.</p> <p>Such settlement cannot he considered voluntary.</p> <p>The declarations of the hushand, made during coverture, and shortly before the execution of the settlement, are not evidence of the ante-nuptial agreement.</p> <p>Nor will a recital of such agreement in the deed of settlement, be evidence of the agreement, except as against the husband and persons claiming under the settlement.</p> <p>A deed of settlement made by a husband in favor of his wife, after marriage, in pursuance of an alleged parol ante-nuptial agreement, there being no proof of such agreement but the declarations of the husband and the recital in the deed, held void as against the creditors of the husband, whose debts were in existence at the date of the deed.</p>

<p>A testator by his will gave and bequeathed to h-is wife his real estate, and so much of his personal as she might choose to take, to be held and enjoyed by her during her natural life. He then ordered, that after the death of his-Wife, his personal and real property should be sold and divided, two thirds to his own relations, and one third to his wife’s relations; “ that is to say,the two thirds shall be divided, share and share alike, between the heirs of’ J. S., W. S. and his heirs, and P. S. and his heirs; and the one third shall bo divided between A. IfcC. and his heirs, and M.the wife of J. M. and her heirs.”' The division was ordered to be made by his executors within a reasonable time after his wife’s death, not to exeeed three years. Held,</p> <p>1. That the legacies over after the death of the testator’s wife, vested on the’ death of the testator.</p> <p>3. That the heirs of J. S. (who was dead) should represent their father and fake one share among them, and that W. S. and P. S. should each take on© share absolutely, and not equally with his children.</p> <p>A legacy to A. and his heirs, is an absolute bequest to A.</p> <p>Mere inadequacy of consideration is not of itself a distinct principle of relief! But palpable and excessive inequality in a bargain; inadequacy of consideration so gross as to shock the conscience, will induce equitable interference on'the ground of fraud.</p> <p>So where there aré' other ingredients in the case of a suspicious nature, or peculiar relations between the parties; gross inadequacy of price must necessarily furnish the most vehement presumption of fraud.</p> <p>A® a general rule, equity will not relieve against a contract merely on the ground that it was entered into by the parties under a mistake of the law.</p> <p>Where an instrument is drawn and executed, which professes and is intended to carry into execution an agreement previously entered into, but which by mistake of the'draftsman either as to facts or law does not fulfill that intention; or violates it, equity will correct the mistake so as to produce a conformity in-the instrument to the agreement.</p>

<p>¡Possession, to constitute notice of a claim of title sufficient to put a purchaser on inquiry, must be an actual possession, manifested by notorious acts of ownership, such as would natrirally be observed by and known to the public.</p> <p>The granted of 'a bona fide purchaser without notice, is not to be charged with the incumbrance or fraud, although known to such grantee before he acquired his title.</p>

Bill for a legacy. The bill states that Josiah Kay, late of die county of Gloucester, by his will duly executed, bearing date the eleventh of September, eighteen hundred and forty-one, among other things, gave and devised as follows, viz.: “ I do will and bequeath all the residue and remainder of my undivided estate, both real and personal, to my eight children, to be equally divided, share and share alike, to each one as named and designated as follows, viz.: My son, Jacob…

<p>J. C., the mortgagee, agrees with G. H., the mortgagor, that the latter shall convey to the former the mortgaged premises, and upon his doing so, the bond and mortgage shall be cancelled. G. H. conveys to J. C., but before doing so, conveyed the mortgaged premises to a third person. G. H. cannot set up the agreement as a valid defence in a suit brought by J. C. to foreclose his mortgage.</p> <p>A defendant mast stand by his answer. Although he makes out a good defence by proofs, if it is not the defence set up in his answer, it cannot avail him.</p> <p>Where a cross-bill is necessary.</p>

<p>The mere fact of an individual’s encroaching upon the street by a building, does not confer upon every one, owning a house upon the street, a right to invoke the jurisdiction of a court of equity to prevent the encroachment. The party who asks the aid of the court must show some special ground of equity. When the complaint is by an individual owning a neighboring lot, there the encroachment being a special damage to adjacent land owners, by obstructing their view, or their access to the public highway, and in depreciating the value of their property, a case is presented where there is some special equity.</p> <p>A grantor, in giving the boundaries of the lot conveyed, describes it as crossing a sixteen feet alley. This raises no implied covenant, on the part of the grantor, to open an alley sixteen feet wide, or of any other width; nor does it give to the grantee any claim, in equity, upon the grantor, to compel him to open such an alley.</p> <p>A. purchases a lot from B., on an alley actually opened eight feet wide. B., at the time of the purchase, promised to widen the alley to the width of sixteen feet. B. widened the alley. A court of equity will enjoin B. fiom narrowing the alley to its original width.</p>

Bill by husband and wife, to compel tbe execution of a trust created in favor of the wife by the will of her father.

<p>Where a testator charges his lands with the payment of legacies, and devises the use of the land to his wife as long as she remains his widow, in lieu of her dower; it the widow accepts the devise, she takes it subject to the incumbrance of the legacies.</p> <p>The settled principle of equity is, that he who accepts a benefit under a will, must conform to all its provisions and renounce every right inconsistent with them.</p> <p>There is no rule distinguishing between the widow and other devisees.</p> <p>The devisees under a will, by accepting the devise, assume the payment of the legacies charged on the real estate,in the proportion of their respective estates in the land devised; and a purchaser under one of the devisees must bear his proportion of the charge.</p> <p>Upon a bill by husband and wife for the recovery of a legacy bequeathed to the wife, she is entitled to a reasonable provision out of the legacy before decree in favor of the husband.</p>

Bill by a widow, against the executors of her husband, to establish her title to dower in the real estafe of the testator. Answer by the executors, insisting that the complainant had elected to accept an annuity bequeathed to her by the testator in lieu of her dower. All the facts and circumstances necessary to a full understanding of the case, are staled in the opinion of the chancellor. The cause was heard upon bill, answer and proofs.

The bill in this case is filed by an execution creditor of the Trenton Delaware Ealls Company.

<p>The Court of Chancery exercises a jurisdiction of looking into the judgments of other courts, and relieving against them for fraud.</p> <p>Where the judgment has been procured by artifice or concealment on the part of the plaintiff, and the court where the fraud has been perpetrated is not able to give relief, there this court will take hold of the party who has committed the fraud, and prevent his using his judgment to the injury of his adversary ; or if he has enforced his judgment, the court will hold him a trustee, and compel him to account for the fruits of his iniquity.</p> <p>The court will decree a party to cancel a judgment obtained against con- ‘ science.</p> <p>The court will relieve against the fraudulent use of a bona fide judgment against awards fraudulently obtained, against verdicts and probates of wills, and even against private acts of legislative bodies, obtained by fraud.</p> <p>The usual ground upon which a court of equity refuses to interfere with a judgment, is because the defendant should have protected himself in the court where the judgment is obtained. The objection can have no weight' when the judgment is in attachment and the proceedings have been wholly ex parte.</p> <p>But even in a case where a judgment has been obtained in the absence of a party, and upon a hearing entirely ex parte, this court will not try the merits of the case over again, where they have been properly submitted to the tribunal established by law to hear and adjudicate upon them.</p> <p>In the case of attachment where the plaintiff imposes a fictitious claim upon the auditors, or a claim which has been satisfied, if he conceals from the auditors any fact which tends to show that his claim is not a valid one, he commits a fraud against which this court will grant relief, either by enjoining the enforcement of the claim, or ordering such restitution as the circumstances of the ease will justify.</p> <p>A parent is bound to provide his infant children with necessaries; and if he neglect to do so, a third person may supply them, and charge the parént with the amount. But such third person must take notice of what is necessary for the infant, according to his situation in life; and where the infant lives with his parent, and is provided for by him, a person furnishing necessaries cannot charge the parent.</p> <p>Where the infant is sub potestate parentis, there must be a clear and palpable omission of duty, in that respect, on the part of the parent, in order to authorize any other person to act for, and charge the expense to the parent.</p>

The bill states that on the first of August, eighteen hundred and thirty-nine, Frances S. Hedden, then the wife of Z. Hedden, since deceased, was, and for many years had been, in her own name, or in the name of some person in trust for her, seized and possessed of valuable real and personal property in her own right, and to her own separate and individual use, secured to her during her coverture by an ante-nuptial contract, in the words or to the effect following, that is to…

<p>If a mortgage creditor becomes the purchaser of the mortgaged premises aX sheriff’s sale, under an execution issued upon a judgment rendered for the mortgage debt, the debt is extinguished to' the amount of the purchase money.</p> <p>So if the debt be due to husband and wife, or to joint creditors, and one purchases the mortgaged premises at sheriff’s sale under an execution for the debt, upon the aoeeptanee of the deed the amount bid operates as a payment pro tanto.</p> <p>If a judgment creditor, having the judgment debt secured by a mortgage, becomes a purchaser of the equity of redemption"subject to incumbrances intervening between his mortgage and judgment, through mistake or ignorance of the existence of his own mortgage, equity will not relieve.</p> <p>The mistake or ignorance for which a contract will be relieved against in equity, must be mistake or ignorance of a material fact, essential to its character, and a material cause of its concoction.</p> <p>The fact must also be such as the party could not, by reasonable diligence, have gotten knowledge of, when he was put upon inquiry.</p> <p>When the fact is equally unknown to both parties, or when each has equal and adequate means of information, and both have acted in good faith, the court will not interfere.</p>

<p>Michenor entered into a written contract for the purchase of several tracts of land. He entered under his contract, and made valuable improvements. For the fraudulent purpose of defeating his creditors, he procured the land to be conveyed to Harlan, to hold in trust for his benefit. Held, that the interest which Michenor had in the land was subject to attachment.</p> <p>A bill will lie to declare the property subject to the attachment, and to remove any obstacles which may stand in the way of the creditors having the full benefit of the attachment, and an injunction is proper to prevent the party holding the legal title from parting with it.</p> <p>An attaching creditor has such a lien as will enable him to maintain a suit in chancery to set aside a fraudulent conveyance of judgments under which the property attached is claimed.</p> <p>Creditors, having separate attachments, may join in filing a bill for relief against a fraudulent conveyance of the debtor’s property.</p> <p>The mortgage and judgment creditors of the debtor are necessary parties. Having liens upon the property, they have a right to be heard, and to have their Hens protected. The creditors who have been admitted under the attachment are not necessary parties.</p>

<p>There can be' no doubt of the power of the court of chancfery to look into' the judgments of other courts, and' to set them aside on< the ground of fraud.</p> <p>The decrees of ecclesiastical- courts, and'- of this court, will be relieved against or avoided on the same ground.</p> <p>The power and jurisdiction of this court over decrees in chancery,- is not taken away or abridged by that clause of the statute of New.Jersey which enacts, that the sentence or decree of tho orphans’ court shall be conclusive upon all parties, except in certain specified cases, where the account may be opened by the- court itself.*</p> <p>An executor, who was also an' agent or trustee of tho testator in his life time, after the final settlement of his accounts as executor in the orphans’ court, cannot be called on to account in equity as such trustee. There can be no-separate accounting in- the two different capacities.</p> <p>A court of equity exercises the power of setting aside decrees of the orphans’’ court foi fraud, not on the ground of concurrent jurisdiction, but by reason of an inherent authority, growing out of the principles and constitution of the court, ..and extending itself over judgments of courts of every descrip' t-ion.</p> <p>iViicn and under what circumetanees may fraud operate to impeach O. decree T Will fraud in tho incipient stage of a transaction be sufficient to overturn a decree subsequently obtained, when the party complaining of it was apprised of the facts on the trial, and had within his power the moans of investigation ; or is it to be confined to fraud in procuring the decree ? — ■ Quaire.</p> <p>In eases of family agreements and compromises, there must always be a mutual trust and confidence between the parties; and if there is any concealment of material facts, the compromise will bo held invalid.</p> <p>The inventory presented to tho surrogate by an executor, should contain a specific enumeration of the goods, chattels and credits of the testator; a paper containing items, thus — ■“ cash, bonds and cotes,” — “ household goods and kitchen furniture,” is not, strictly speaking, an inventory, and may properly be rejected as such by the surrogate.</p>

<p>An injunction was granted to prevent tlie managers, appointed under an act of the legislature, for the opening, clearing out, and straightening the Assanpink creek, from entering upon, and appropriating the land of the complainant for the purposes authorized by the act. The act prescribed no mode of compensation. The defendants set up, in their answer, that the complainant encouraged the defendants to proceed with their work, and to expend large sums of money, under a promise of the complainant that the defendants might take his land for the purposes of the contemplated improvement. The defendants having failed to sustain this allegation by their proof, the injunction was made perpetual.</p>

<p>H. P., the testatrix, bequeathed as follows: “ Tenth. I give and bequeath unto my sou W. L. and my grandson A. S. R., and to the survivor of them, and to the executors, administrators, and assigns of such survivors, the remaining equal fourth part of the rest, residue, and remainder of my personal estate? whatsoever and wheresoever, upon and for the trusts, interest, and purposes and with and subject to the powers and provisoes herein after mentioned and expressed of and concerning the same, that is to say, upon trust that they, the said W. B. and A. S. R., and the survivor of them, and the executors, administrators, and assigns of such survivor, shall place the said last mentioned one-fourth part of my personal estate at interest upen good and sufficient security, and shall pay all the interest that shall arise thereon yearly, as it shall become due, to my daughter H. L., so long as she shall live. And also, in trust, to pay unto my said daughter H. L. so much of the principal money of the said last mentioned fourth part as my said daughter II. shall from time to time, by writing under her hand, and attested by two credible witnesses, require of the said trustees. But in the event that my daughter H. shall marry, then it is my will that tho interest and principal money above directed to be paid into her own hands for her sole and separate use, aud her receipt, notwithstanding her coverture, shall be a sufficient discharge to the said trustees therefor — my intent being that the same shall in nowise be subject to the contracts, debts, or control of any husband she may marry. And from and immediately after the decease of my said daughter H., in case she shall marry, and have children living at her death, or descendants of such children, then it is my will that what shall remain undisposed of of the said last mentioned fourth part of the residue of my personal estate, with its accumulated interest, shall belong to and vest in the children of my said daughter H., equally between them, if more than one, to be paid to them as they respectively attain the age of twenty-one years. But if any children of my said daughter H. shall die before, leaving issue living at the time of the death of the said H., then such issue shall stand in the place of their deceased parent, and take the parent’s share, and if more than one, equally between them. But in case my said daughter H. shall die without any child, or descendant of such child living at her death, then it is my will that the said trustee do pay such part of the last mentioned fourth of the residue of iny personal estate as may remain undisposed of at the time of the death of my said daughter H., with its accumulated interest, unto such of the brothers and sisters of my said daughter II. and their children, and in such proportions as my said daughter H, shall, by last will and testament, or writing in nature thereof, signed by her hand and attested by two credible witnesses, direct and appoint — my will being that my said daughter H. shall in such case have power to dispose of the same among her brothers and sisters, and their children, in such proportions as she may think fit, but to no other person or persons whomsoever. And in case my said daughter H. shall die not leaving any child at her death, or descendant of such child, and without having made such appointment and disposition of what shall then remain undisposed of, of the said lavSt mentioned fourth part of the residue of my personal estate as she is above empowered to make, then it is my will, and I do hereby direct the said trustees to pay the same unto the brothers and sisters of my said daughter II. in equal proportions, the share of such of the sisters, however, as shall then be married to be paid to their trustee for their separate use free from their husbands’ control, the children of any deceased brother or sister to stand in the place of his, her, or their parent, and take that parent’s]share equally between them, if more than one.”</p> <p>Held, that the power of appointment in the will was a limited power, and that each of the brothers and sisters of H. L. were entitled to a portion of the fund, and that a will of H. L., by which she gave one hundred dollars of the fund to R. Z., and the residue of the fund to A. I. R., was a defective execution of the power. See 2 Stockton 164.</p> <p>And further held — that H. L. was entitled to the interest of the fund, and that the term accumulated interest did not mean the interest accrued and unpaid, but such interest only as, at the death of H. L., not having grown due and become payable to her, remained undisposed of.</p> <p>A fact admitted by the answer, the defendant cannot question or deny by the proofs.</p> <p>The bill charges that the fourth of the residue of the personal estate of the said H. C. amounted to $9289. The answer admits that this was the amount. ■ The parties are concluded, as to the amount, by the pleadings. The-defendant is not permitted to show the fund exceeded the sum specified.</p>

<p>Everything which is the subject of a contract, or which may be assigned, is capable of being mortgaged.</p> <p>A. and B. enter into a written contract, by which B. binds himself to convey certain lands to A. A. may mortgage his interest in the land under this contract.</p> <p>Query. Is the record of such a mortgage notice to a bona fide purchaser of the land 1</p> <p>A court of equity will not protect a party, who advances money which is for the benefit and protection of a prior encumbrancer, where the advance was made for the fraudulent purpose of defeating, and not protecting, the encumbrancer.</p>

<p>A tenant in common cannot prejudice his co-tenant by a conveyance of a part ofthe land by metes and bounds. Such a deed cannot give to the grant- or the exclusive title to the portion conveyed, any more than the co-tenant, the grantor, can select any particular part of the land, and appropriate it as his exclusivo moiety. But as against tho grantor, and those claiming under him, the grant is good. They are estopped by it. The co-tenant cannot com» plain of it unless wliero it operates to his prejudice, and there his rights will be protected.</p> <p>An injunction issued against J. C. enjoining him from selling certain lands which he held in trust. He conveyed to E. J. K., who was not a party to tho injunction bill. The deed was set aside.</p> <p>J. C. held property in trust for an infant, to sell it if he thought best, and to invest the proceeds. J. C* became embarrassed. There were judgments and executions against him. He sold the property in violation of an injunction, upon a bill charging him with an intent to sell the trust property, and appropriate the proceeds to pay his debts to E. J. K., who knew of the injunction. The deed was sot asido as fraudulent.</p>

<p>in ordinary cases, where a testator is in health and of ability, it is not necea, sary to show that the will was read over to him, or that he knew the eon-tents of it. The legal presumption in such eases is always in favor of the will; and ho who seeks to impeach it must show conclusive!}' that the testator was imposed on, or that there was some mistake whereby he was deceived.</p> <p>But where it appears affirmatively that the testator did not read the will himself, and that it was not read to him, it must then be shown to the satisfaction of the court that he was in somo other way made acquainted with the contents of the instrument and approved them.</p> <p>So if the testator be incapable of reading the will, whether the incapacity arise from blindness, sickness, or any other cause, the rule is the same, and the burden of proof is thrown on the person offering the will.</p> <p>If it be established either by direct evidence, or by circumstances so conclusive as to admit of no reasonable doubt, that the will in question was truly copied from a provious will, with the contents of which the testator was acquainted, the instrument will be admitted to probate although it was neither road by him nor in his hearing.</p> <p>■Or if it can be shown that the will in question is substantially in accordance with tho instructions of the testator, it may be considered as sufficient evidence that he was acquainted with its contents.</p> <p>If a prior will be revolted by a subsequent one, and both be improperly destroyed, the contents of the first instrument cannot be established as the testator’s will, although the contents of the second will cannot be ascertained.</p> <p>It is usual to allow the costs of both parties incurred in contesting a will to be paid out of the personal estate, except where it appears that the conduct of one or other of the parties is frivolous, oppressive or fraudulent.</p> <p>Counsel fees should also be allowed to the executor, who offers the will for probate, and in proper cases counsel fees may be allowed to both parties out of the estate.</p>

<p>A court of equity will not relieve a party who has made a voluntary conveyance of his property when threatened with a criminal prosecution.</p> <p>The conveyance is good against the party, but will not be set aside as against the state.</p>

<p>Hearing upon motion to dissolve an injunction, upon the ground that the whole equity of the bill was denied by the answer.</p>

This was a motion to vacate an order made by the ordinary, for leave to prosecute an administrator’s bond. The order bore date on the sixteenth of February, eighteen hundred and forty-three,and was filed in the prerogative office on the tenth of June, eighteen hundred and forty-four.

<p>Appeal from a decree of the orphans’ court of the county of Hunterdon, granting letters of administration upon the estate of James Maher, to John Noble.</p> <p>The cause came before the court upon a motion, on the part of the respondent, to dismiss the appeal for irregularity, on the ground that it was not demanded within thirty days after the decree.</p>

<p>This cause came before the court upon an appeal from a decree of the orphans’ court of the county of Hunterdon, denying probate of an instrument propounded as the last will and testament of John Maxwell, late of the county of Hunterdon. The will was executed in the mouth of August, eighteen hundred and twenty-live, and the testator died in February, eighteen hundred and twenty-eight, at the age of eighty-eight years. The will was exhibited for probate by William II. Sloan, one of the executors named therein; and a caveat against proving the same was filed by John S. Maxwell and others. On the hearing of (the cause in the orphans’ court, the judges were equally divided lin opinion. Thereupon, by consent of parties, in order that an .appeal might be taken, a decree was made on the twelfth day of December, .eighteen hundred and twenty-eight, “that the paper writing offered for probate was not the last will and testament of John Maxwell, deceased, and that the same be not admitted to probate, but be set aside, made void, and for nothing holden.” The ordinary having been of counsel with one of the parties, .chief justice Ewing, and justice Drake, two of the justices of the supreme court, were by virtue of the provisions of the act of the nineteenth of February, eighteen hundred and thirty, (Harrison, 297,) .called by the ordinary to sit and advise with him ,on the hearing ,of .the cause. The opinion was delivered by Ewing.</p>

court of the county of Warren, admitting to probate a paper writing purporting ,to be the last will and testament of Barnet Andress, deceased. The will was exhibited for probate by Philip P. Weller and Jacob Miller, named therein as executors. The caveat was filed by John An-,dress, one of th,e spns of the testator, wh,o appealed from ih,e decree.

<p>Application to the ordinary for the granting of letters testamentary to John S. Maxwell, one of the executors named in the last will and testament of John Maxwell, deceased. The application being resisted, and the ordinary having been of counsel with one of the parties, the cause was heard before chief justice Ewing, who was called to sit with the ordinary on the hearing of the cause.</p>

Wallace;proved in- the state of Pennsylvania,- should be filed and recorded, and that letters’ testamentary should be granted to Mary M.Wallace.-

The instrument exhibited for probate was as follows, to wit:— “ To all persons to whom these presents may concern.

The instrument was offered for probate by the executors. The caveat was filed by one of the testator’s daughters and her .husband.

Commissioners appointed by the court to make partition of the real estate whereof Jacob S. Thomson died seized, having made the partition, made report thereof, pursuant to the act. One of the parties interested, being dissatisfied with the share allotted to him, obtained a rule to show cause why the report of the commissioners, and the partition by them made, should not be set aside. The matter came on for hearing upon the rule to show cause.