Volume 30 — New Jersey Equity Reports

<p>Where the sheriff, in advertising a sale under foreclosure, duly stated the title of the suit, and described the premises, but added, “ seized and taken as the property of W. L. el ux. el al., and taken in execution at the suit of J. B.” (W. L. was not the owner of the fee, but the lessee)— Held, that this statement did not vitiate the advertisement.</p>

<p>Bill for construction of will and for directions.</p>

<p>Under P. L. 1878, p. 393, construed in connection with P. L. 1876, p. 341, a savings bank cannot divide more than five per cent, per annum among its depositors, until after its surplus exceeds fifteen per cent, of its deposits.</p>

<p>1. That a purchaser under foreclosure proceedings takes possession, by mistake, of more lands than the mortgage covers, does not render him a trustee and liable for compound interest on the sums received by him while in such possession ; nor does the fact that his wife is a tenant in common with the actual owners, make him a trustee, and, as such, liable.</p> <p>2. Taxes and the costs of necessary repairs by the defendant, allowed in accounting.</p> <p>3. If a partition be prayed, and all the parties (all being sui juris) agree as to the divisibility of the premises, it may be ordered, although the master reports adversely. Lands not described in the bill, must not be included in the master’s report. A survey of the premises will not be ordered unless shown to be clearly necessary. Where the master was required to report a description of the premises to be divided, a statement that the lots are Nos., &c., giving the numbers on the map on a city atlas, without more or further description, is insufficient. He should describe them.</p>

<p>1. Specific performance was refused of a contract to build and equip a railroad, although the contraot price was to be paid in the stock and bonds of the company, and the estimates, &c., were to be made by the company. The company declared its inability to comply with the requirements of a supplement to the act (a general law) under which it was incorporated, and the penalty for non-compliance therewith was, by the supplement, declared to be the forfeiture of its charter. It therefore, and merely for that reason, declined to proceed further under the contract.</p> <p>2. The court refused to consider the constitutionality of such supplement, so far as the defendants were concerned, and also refused to direct them to make estimates for the work already done under the contract.</p> <p>Note.—Specific performance will not be decreed of a contract requiring the direct superintendence of the court, nor where the contract or duties to be performed are continuous. The following cases are examples of the application of this rule:</p> <p>Erecting a structure, or rebuilding or repairing. (Beck v. Allison, 56 N. Y. 366, reversing S. C., 4 Daly 422, where all of the early cases are referred to; Wilkinson v. Clements, L. R. (8 Ch.) 96; Brace v. Wehnert, 25 Beav. 348; Mastin v. Halley, 61 Mo. 196; Justices v. Croft, 18 Ga. 473; Birchett v. Bolling, 5 Munf. 442; Raynor v. Stone, 2 Eden Ch. 128; Reed v. Vidal, 5 Rich. Eq. 289; Hall v. Boyd, 14 Ga. 1; Denniston v. Coquillard, 5 McLean 253. See Whitworth v. Harris, 40 Miss. 483; Tildesley v. Clarkson, 80 Beav. 419; Rindye v. Baker, 57 N. Y. 209; Wilson v. Northampton R. R. Co., L. R. (9 Ch.) 279; Printup v. Mitchell, 17 Ga. 558; Wells v. Maxwell, 32 Beav. 408; Gray v. Hawkins, 8 Ohio St. 449.)</p> <p>A party was compelled to put another story on a market-house, after the deed therefor had been delivered to him on that condition. (Providence v. St. John, 2 R. I. 46. See Price v. Penzance, 4 Hare 506.)</p> <p>A landlord was decreed to repair, in a case where the tenant would otherwise have been irretrievably injured. (Valloton v. Seignett, 2 Abb. Pr. 121.)</p> <p>Performance was decreed of a covenant not to erect a building within a specified distance. (Lloyd v. London, &c. R. R., 2 DeG. J. & S. 568. See St. Louis R. R. Co. v. Mathers, 71 Ill. 592.)</p> <p>Although a contract may be carried out to construct approaches to a railroad track (Stover v. Gt. Western R. R. Co., 6 Jur. 1009; Wilson v. Furness R. R. Co., L. R. (9 Eq.) 28; Sanderson v. Cockermouth R. R., 11 Beav. 497; Raphael v. Thames Valley R. R., L. R. (2 Eq.) 37, reversed, L. R. (2 Ch.) 147; see McCue v. Ralston, 9 Gratt. 430); or a drain thereunder (Powell v. Gt. Western R. R., 1 Jur. (N. S.) 773); or a siding (Lytton v Gt. Northern R. R., 2 K. & J. 394; Green v. West Cheshire R. R., L. R. (13 Eq.) 44 Windham Cotton Co. v. Hartford R. R. Co., 23 Conn. 373); yet the court will not build a railroad (see cases infra p. 15); nor enforce a contract to locate it in a particular place (Linder v. Carpenter, 62 Ill. 309; Bestor v. Wathen, 60 Ill. 138; Marsh v. Fairbury R. R., 64 Ill. 414; see Borders v. Murphy, 68 Ill. 81); or a depot (Haisten v. Savannah R. R., 51 Ga. 199; St. Louis, R. R. Co. v. Mathers, 71 Ill. 592; Aiken v. A. V. & C. R. R., 26 Barb. 289; Hubbard v. K. P. & St. Jo. R. R., 63 Mo. 68); nor operate a railroad (Powell v. Taff R. R. Co., L. R. (9 Ch. Ap.) 331; McCann v. Nashville R. R. Co., 2 Tenn. Ch. 773; Blanchard, v. Detroit R. R. Co., 31 Mich. 43; Atlanta R. R. Co. v. Speer, 32 Ga. 550; Johnson v. Shrewsbury R. R. Co., 3 DeG. M. & G. 914; Blackett v. Bates, L. R. (1 Ch. Ap.) 117; Port Clinton R. R. Co. v. Cleveland R. R. Co., 13 Ohio St. 544; see Hood v. North Eastern R. R., L. R. (8 Eq. Cas.) 666, (5 Ch. Ap.) 525; Del. Lack. & W. R. R. v. Erie R. R., 6 C. E. Gr. 298; Shacklen v. Eastern R. R., 98 Mass. 93; Rigby v. Gt. Western R. R., 2 Phil. 44; Niagara Bridge Co. v. Gt. Western R. R., 29 Barb. 213); nor, repair cattle-guards (Columbus R. R. Co. v. Watson, 26 Ind. 50); nor compel a railroad to ship all of its grain through a certain elevator (Richmond v. Dubuque R. R., 33 Iowa 422; see Chicago R. R. v. C. & V. R. R., 79 Ill. 121; Lynn v. Mt. Savage Iron Co., 34 Md. 603); nor, carry on a colliery (Fothergill v. Rowland, L. R. (17 Eq.) 132; Wheatley v. Westminster Coal Co., L. R. (9 Eq.) 538); or, a quarry (Marble Co. v. Ripley, 10 Wall. 339; Booth v. Pollard, 4 Y. & C. 61; see Pollard v. Clayton, 1 K. & J. 462; Rider v. Gray, 10 Md. 282); or, a newspaper (Tinkler v. Hindmarsh, 2 Beav. 350); or, compel a man to keep open an inn (Hooper v. Broderick, 11 Sim. 47); or, to cultivate a crop in a particular way (Starnes v. Newson, 1 Tenn. Ch. 239).—Rep.</p>

<p>Bill to foreclose.</p>

<p>Bill to foreclose. On petition of Erancis B. Wallace for an order that the receivers in this cause pay to him certain moneys, and interest thereon, which the New Jersey-Midland Railway Company agreed to pay him for land occupied by them with their railroad, &c.</p>

<p>A mortgagee cannot avail himself of an assumption of a mortgage inserted in a deed of the premises by the mistake of a scrivener in copying the grantor’s deed ; neither of the parties to the deed intending or being aware of it.</p>

Bill for injunction to restrain defendant from prosecuting a suit at law. Motion to dissolve injunction on bill and answer.

<p>Bill and demurrer.</p>

<p>Bill for construction of will and for directions.</p>

<p>Bill for construction of will. On final hearing on pleadings and proofs.</p>

<p>Where the grantee of a mortgagor conveys the mortgaged premises in different parcels, and the grantees of such parcels again convey them in parcels,—Held, that the grantees of the latter parcels are liable to pay the share of the mortgage debt chargeable on the part of the mortgaged premises of which the premises conveyed to them are part, in the inverse order of conveyance to them.</p>

<p>A testator gave to his executors a fund, in trust, for each of his four children and his or her issue, and “ to safely invest it and pay to each one of his children the interest and income of it during his or her natural life, in such manner and in such amounts as the executors shall deem most prudent.” On a bill filed by the executors for the construction of this clause, and for directions as to their duty,—Held, that they must apply so much of the income of one of the children as will be sufficient to satisfy a judgment recovered against him, a receiver having been appointed under supplemental proceedings on the execution, and it appearing, by the bill, that of the income coming to the legatee the executors have enough money in their hands, over and above the amount which they deem it prudent to pay the legatee, to satisfy the judgment with costs and interest.</p> <p>Note.—Trusts cannot, generally speaking, be created with a proviso that the equitable estate or interest of the cestui que trust shall not be alienated. Perry on Trusts § 386 ; Story’s Eq. Juris. § 974a; 3 Wms. on Ex’rs 1374; and see especially Mandlebaum, v. McDonnell, 29 Mich. 78, reviewing the principal cases; Teague’s Case, L. R. (10 Eq.) 564.</p> <p>A bequest of money in trust for W., “ not subject to any debt or debts he may have contracted, but for his comfort and support,” —Held, subject to his debts, nevertheless, because the condition is void. Smith v. Moore, 37 Ala. 327; Mebane v. Mebane, 4 Ired. Eq. 131; Gray v. Obear, 54 Ga. 231; McIlvaine v. Smith, 42 Mo. 45; see Stagg v. Beekman, 2 Edw. Ch. 89; Nichols v. Levy, 5 Wall. 433. The United States supreme court, however, in Nichols v. Eaton, 1 Otto 716, refused to sanction the doctrine that the power of alienation is a necessary incident to a devisee’s life estate in real property, or that his interest, rents and profits of real estate, or dividends and income of personal property, cannot be given and granted by a testator free from all liability for the debts of the grantee (see 10 Am. Law Rev. 591, criticising this decision); also, Still v. Spear, 3 Grant’s Cas. 306; Shankland’s Appeal, 47 Pa. St. 113; Rife v. Geyer, 59 Pa. St. 393; Wells v. McCall, 64 Pa. St. 207.</p> <p>Devises or bequests forbidding alienation for a limited time, or to a particular person, are good. Perry &c., supra; McKinster v. Smith, 27 Conn. 628; Macleary’s Case, L. R. (20 Eq.) 186; Stewart v. Brady, 3 Bush (Ky.) 623; Hamersley v. Smith, 4 Whart. 126, 128; see Blackwell v. Blackwell, 3 Gr. 386; Van Middlesworth v. Schenck, 3 Hal. 29; Lippincott v. Ridgway, 2 Stock. 164; Attwater v. Attwater, 18 Beav. 330; Teaque’s Case, L. R. (10 Eq.) 564; Cunynghame’s Case, L. R. (11 Eq.) 324. Also, gifts to be forfeited on the bankruptcy or insolvency of the donee. Perry, &c., supra; see, further, the following recent cases: White v. Chitty, L. R. (1 Eq.) 372; Cox v. Fonblanque, L. R. (6 Eq.) 482; Lloyd v. Lloyd, L. R. (2 Eq.) 722; Trappes v. Meredith, L. R. (9 Eq.) 229; Hatton v. May, L. R. (3 Ch.) 148; Hunt v. Furber, L. R. (3 Ch.) 285; Sharp v. Cosserat, 20 Beav. 470; Manning v. Chambers, 1 DcG. & Sm. 282; Oldham, v. Old-ham, L. R. (3 Eq.) 404; Nichols v. Eaton, 1 Otto 716 ; Bridge v. Ward, 35 Wis. 687 ; Tillinghast v. Bradford, 5 R. I. 205 ; Bryan v. Knickerbocker, 1 Barb. Ch. 409. But if the prohibition against alienation does not include a forfeiture of the estate as its consequence, the cestui que trust may assign his interest, and the assignee has a right to an account for the rents and profits thereafter. Lick v. Pitch ford, 1 Lev. & Bat. Eq. 480; Palmer v. Stevens, 15 Gray 343 ; see Nixon v. Rose, 12 Gratt. 425. ¡áo, where the bequest was in trust to pay the interest of a fund to the testator’s wife for life, for the separate use of his wife and their children, to be applied for her and their maintenance, support, education, &c., .the widow mortgaged her interest and became insolvent.—Held, that the trust was only for those children needing support, and a reference was ordered to ascertain how much of the income was necessary, the surplus to go to the mortgagee. Carr v. Living, 28 Beav. 644. In. New York, by statute, such an interest is inalienable. Van Epps v. Van Epps, 9 Paige 237 ; Brown v. Harris, 25 Barb. 134 ; Moulton v. de ma Carty, 6 Bob. 533. At common law the estate of a cestui que trust for life is not forfeited by a conveyance of his interest. Whestone v. St. Bury, 2 P. Wms. 146 ; Lelbieullier v. Tracy, 3 Aik. 728 ; Bazemore v. Davis, 48 Ga. 339.</p> <p>A devise to executors to hold certain property and its proceeds until the testator’s sons should become free from debt, and then to make a division among them, does not convey such an interest as enables the sons to alien, or such as to subject it to the claims of their creditors. Bank of State v. Forney, 2 Ired. [N. C.) Eq. 181 ; see Davidson v. Chalmers, 33 Beav. 653; Hall v. Gill, 10 Gill & Johns. (Md.) 325; Johnson v. Culbreath, 19 Ala. 348 ; Emery v. Van Syckel, 2 C. E. Gr. 564 ; Ashe v. Hale, 5 Ired. Eq. 55.</p> <p>The rule to be drawn from the cases where the trustees’ discretion is absolute and uncontrolled is, that the interest of the cestui que trust in the estate or income can not be reached to satisfy his debts. Holmes v. Penney, 3 K. & J. 90 ; Twopenny v. Peyton, 10 Sim. 487 ; Leavitt v. Beirne, 21 Conn. 9; Doswell v. Anderson, 1 Pat. & Heath 185 ; Ileyser v. Mitchell, 67 Pa. St. 473 ; Nixon v. Bose, 12 Graft. 425 ; Hall v. Williams, 120 Mass. 344. The following are illustrations of what has been determined to constitute such discretion, or otherwise:</p> <p>I. Where the creditor has sought to subject to his claim the fund itself.</p> <p>Havens v. Healy, 15 Barb. 296. A trustee was to keep the share of J. in trust, and to pay it to him in small sums for the support of himself and family, or otherwise, as the trustee should decide, or for a home to be kept in trust for J. — Held, that J. took a beneficial interest in the fund itself, and not merely in the income; that such interest was assignable by J., would pass to bankrupt assignees, and could be reached by creditors’ bill.</p> <p>Leavitt v. Beirne, 21 Conn. 9. B. gave to his sons, G-. and 0., property for the exclusive use and enjoyment of his daughter M. and her children, with full authority in Gr. and O. to apply the property as to them should seem best for their exclusive benefit, during the life of M., and afterwards to divide the same among her children. On a bill filed against the trustees by the payees of a note given by M.,—Held, that the fund was not bound by M.’s contracts, and that the trustees had the title and custody and authority to apply it according to their discretion, with which the court would not interfere until an abuse thereof should be shown. Ellsworth & Church, JJ. dis. See Harper v. Phelps, 21 Conn. 257.</p> <p>Lucas v. Lockhart, 10 8m. & Marsh. 466. A devise was made to a wife to have, during widowhood, the entire use. profit and control of the estate, “ and to her discretion do I entrust the education and maintenance of my children during that time.” —Held, that the widow took the estate coupled with a trust, and that, during the children’s lives, it was not liable to sale to satisfy judgments against her.</p> <p>White v. White, 30 Vt. 338. “ I bequeath to my son W. * * * the sum of fifteen hundred dollars for the support of himself and family, and for no other purpose; to be paid and advanced by my executors, within five years after my decease, <fcc.” The legacy was paid to the attorney of W.—Held, not attachable in the attorney’s hands ; following Baikes v. Ward, 1 Hare 445 ; Crockett v. Crockett, 1 1Tare 451.</p> <p>Boswell v. Anderson, 1 Pat. & Heath 185. M., by marriage settlement, conveyed lands and slaves in trust for her sole use for life, the profits to be applied to the support, maintenance and education of herself and her children, at her ducretion. — Held, that the fund was not liable for her debts, contracted during or after coverture.</p> <p>Johnson v. Ellis, 12 B. Mon. 479. Testator directed that the farm on which he lived, and all the residue &c., should be sold and the proceeds equally divided; the portion of his son 0. * * * to remain in the hands of his executors, to be disposed of as they might think best for him and his heirs.—Held, that the executors’ right does not impair the rights of creditors. If O. has an equitable right to the fund, it is subject to their claims.</p> <p>Arnwine v. Carroll, 4 Hal. Ch. 620, 886. A.’s mother conveyed lands to C. (her grandson) in consideration of a lease to herself tor life, and upon her death to pay to A. $2,000, “ in such sums and at such times as A. might require” ; such sum being intended for the use and support of A., he being indebted to divers persons and of an improvident disposition. There was a failure to prove the trust, but the chancellor said (p. 625), “if any claim or right of action that could be enforced, either at law or in equity, was given to the complainant, his creditors could reach the fund arising from it”. See Battle v. Peiway, 5 Ired. Law 576 ; Forbes v. Smith, 8 Ired. Eq. 30 ; Freeman v. Perry, 2 Lev. Eq. 243.</p> <p>Wells v. Ely, 3 Stock. 172. One-fifth of a residuum was bequeathed to E., wife of W., in trust for the use of W.; one-fifth to 0., wife of H., in trust for the use of II.; and in case H. should die before J. and S. arrive at the age of twenty-one years, his share to be divided equally between testator’s surviving children. —Held, that W.’s share -was subject to his creditors’ claims. Query, whether the interest on H.’s share was so liable.</p> <p>Samuel v. Salter, 3 Met. (Ky.) 259. An estate was devised to a trustee “ to use and control the same as he may think best, and out of the rents &c. furnish to testator’s son, * * as he may need the same, such sums as may be sufficient for his reasonable and comfortable support during life'—the overplus of the rents to be divided between the son’s children, and, at his death, the estate that may remain to be equally divided between them.” The trustee also had power to sell; the son to have no power to charge his maintenance with his debts, nor lay the funds under any liability ; and “ the said trustee is not restricted or limited to the actual profits of the estate.”—Held, that the estate was liable for the son’s debts. [Consult the Kentucky statute.]</p> <p>Woodruff v. Johnson, 4 Hal. Ch. 120, 729. A lot and dwelling-house thereon were devised to trustees by 0., in trust for his son S. for his occupation and enjoyment during life, and then to his wife for life on the same trust, then in trust to convey the fee to S.’s heirs at law. S. entered into possession, and, out of his own funds, erected another house upon the lot above devised.—Held, that such house was subject to his creditors’ claims, but not the land whereon it stood, and the receiver was directed to ascertain the value of the ground rent, and to deduct that sum from the rents and appropriate it to the purposes of the trust.</p> <p>Fisher v. Taylor, 2 JRawle 33. A testator directed his executors to purchase a tract of land to be conveyed to them in trust for his son, who was to have the rents, issues and profits thereof, but the same was not to be liable for any debts then or thereafter contracted by his said son, at whose death the land was to vest in the heirs of his body.— Held, that the interest of the son in the lands could not be taken in execution.</p> <p>Vaux v. Parke, 7 W. & S. 19. Under a trust to pay the income &c. into J.’s hands, or to such persons as he might appoint, with power of devise in J., or to his heirs if intestate, with further power to the trustees and J. to alter and re-invest the fund,—Held, that J. had no estate liable to execution. See, also, Ashhurst v. Gioen, 5 W. & 8. 323 ; Shankland’s Appeal and other Pennsylvania cases, supra p. 43.</p> <p>TJpharn v. Varney, 15 N. H. 462. That a trustee should permit the testator’s brother to occupy lands and receive the income thereof during his life, and then to testator’s nephew and his heirs, constitutes a use, executed in the cestui que trust by the statute of uses; and an execution would bind his legal estate therein. See Hutchins v. Heywood, 50 N. II. 491.</p> <p>Verdin v. Slocum, 9 Hun 150. Trustees were to permit W,, a son, to have, receive and take the rents &c. of one-third of an estate, for life, and then, “I give &c. the same share to the heirs at law of my said son.”—Held, that the entire estate vested in the trustees, so that it was not necessary to make a judgment creditor of the son a party to foreclosure proceedings.</p> <p>Bryan v. Weems, 29 Ala. 423. The title of slaves conveyed to a trustee, his heirs &c. in trust for the sole and separate use of A for life, “ and, after his death, for the use &o. of his children and their -heirs forever,” does not cease on A’s-death. See Jones v. Strong, 6 Ired. Law 3$7 ; Bacon's Case, 6 Phila. 335, 57 Pa. St. 504; Creighton v. Pringle, 3 Rich. (N,. S.) 77 ; Jones v. McNeil, 1 Bail. 235 ; Jones v. Cole, 2 Bail. 330. Contea, Aihin v. Smith, 1 Sneed 304; Staggers v. Matthews, Í3 Rich. Eq. 142; see Westcott v. Edmunds, 68 Pa. St. 34.</p> <p>Hanson v. Graham, 6 Ves. 249. If an entire fund is given for the maintenance of children, they take the whole fund absolutely, and the maintenance is treated, in effect, as simply a motivo; but if a portion only of the fund is given for maintenance, then they are entitled to draw out so much only as may be necessary for the purpose. See Spencer v. Wilson, L. R. (16 Eq.) 501.</p> <p>Cope v. Wilmot, 1 Coll. 369, note. Trustees were directed to advance and pay “ any sums of money they should think proper and convenient, not exceeding in the whole £3,000," for the use of the plaintiff for life. They advanced £1,000, and declined to advance any more. After the plaintiff attained his majority he filed a bill, and the court decreed to him the remaining £2,000.</p> <p>Rowan v. Rowan, 2 Duv. 412. A devise of realty to trustees for the use of testator’s sons for life, remainder to the sons’ children in fee, with a provision'that the trustees “may sell of the ground allotted to each of my children for their genteel (not extravagant) support, or to pay the debts of my sons, to any amount not exceeding $10,000,” gives the sons’ creditors no right to subject any portion of the estate to the payment of their claims. See Lowther v. Bentwich, L. R. (19 Eq.) 166 ; Talbot v. Marshfield, L. R. (4 Eq.) 661 ; Roosevelt v. Roosevelt, 6 Hun. 31.</p> <p>Prescott v. Morse, 62 Me. 447. A bequest was made of a fund to be placed in the hands of the executor for the use and benefit of the legatee, as he might need it, he not to receive anymore than was necessary for his benefit at the time. The legatee died before any part had been paid over.—Held, that his administrator could recover at law the amount of the fund and interest from the executor. See Dewarts Appeal, 70 Pa. Si. 403.</p> <p>II. Where the debtor is entitled to the sole enjoyment of the income or profits of a fund, during his life-time.</p> <p>Dick v. Pitchford, 1 Dev. & Bat. Eq. 480. A conveyance was made of land and slaves to trustees, on this trust, “ annually to apply the rents and hire or other profits to the use and benefit of H. during his life, so that they be not subject to be sold or disposed of by him, or the rents and profits anticipated by him, or be in any manner subject to his debts or contracts; and after H.’s death, in trust for H.’s three sons.”—Held, that the trustee had no discretion over the annual proceeds, and there being no forfeiture in case of H.’s conveyance for life, an assignment by him was good, and the assignee is entitled to the income during H.’s life and can call on the trustee to account, but that he has no right to the possession of the trust property, because of the ulterior trusts for H.’s sons.</p> <p>Presley v. Rodgers, 24 Miss. 520. A deed of certain slaves was given to C. during life and then to her issue, and, in default of such issue, to the grantor’s children. C. had issue, a son, who died before the slaves were attached for O.’s debt.—Held, that the title being in the trustees for C.’s use, and also for those in remainder, the slaves were not subject to attachment at law, but the plaintiff should proceed in equity.</p> <p>Johnson v. Gushing, 15 N. H. 298. J. S. gave one-third of his estate to his executors in trust, to appropriate and pay over such part of the net income at such times and in such manner as they should judge proper for the maintenance of his son T., with power of devise in T., and on failure to devise, then over to T.’s heirs. T. devised the property, and died insolvent.—Held, that equity had jurisdiction for T.’s creditors, and they were entitled to the property in preference to T.’s appointee.</p> <p>Brown v. Chary, 1 Rich. Eq. 319. A judgment was obtained against a husband and, wife for a debt of the latter, dum sola. The husband died insolvent. Afterwards a trust was created for the benefit of the wife, whereby the income of the fund was paid to her for life.—Held, that the judgment creditor might subject such income in the hands of the trustee to the satisfaction of his judgment. But see Bryan v. Kniclcerbacker 1 Barb. Ch. 409.</p> <p>Mcllvaine v. Smith, 42 Mo. 45. By a deed of trust, the trustee was to control and manage the property, to make loans and receive the rents and profits, to pay all the taxes and other expenses, and to pay over to the cestui que trust, at the end of each quarter, during his life, “ the net product of said property,” with remainders over, and power of appointment..—Held, that the trustees might be enjoined from paying over the quarterly income to the cestui que trust, and directed to apply it to satisfy a decree against him.</p> <p>Heath v. Bishop, 4 Rich. Eq. 46. J. B. conveyed to B. B. two slaves, in trust “ to pay over to J. G. yearly, and from year to year, or as much oftener as'necessary or convenient, the net profits and income from the labor-or hire of said slaves, for the better support and maintenance of the said J. G.,” with further disposition after the death of J. G.— Held, that J. G.’s interest in the slaves was liable in equity to the claims of his creditors.</p> <p>Keyser v. Mitchell, 67 Pa. St. 473. Under a devise to trustees to collect rents &c., and to pay said income, or so much as the trustees may think proper for the support of 0. during his life, either into his own hands or m such way as to the said trustees may seem best for his comfortable maintenance; such payments and disbursements to be at all times at their sole and absolute discretion,—Held, that the income was not liable to attachment under a judgment against the son.</p> <p>Buckman v. Wolbert, 9 Phila. 207. Under a bequest: “ In trust to pay the income to J. for his natural life, and that the same shall not, in any way, be liable for any present or future indebtedness of J., and upon his death, in future trust, to convey the fee to his children,”— Held, that the income payable to J. was not liable to execution by his creditors.</p> <p>Benton v. Pope, 5 Humph. 392. A gift of slaves to the donor's grandchildren, to have and to hold forever, the same to remain in the possession of their father for life, but not to be subject to his creditors or liable for the payment of his debts in any way whatever, gives the father an equitable usufruct not subject to his debts.</p> <p>Hall v. Williams, 120 Mass. 344. A testator gave the net income of his residuary estate to his children or their issue, providing, further, that if any of them exhibited want of thrift or sound discretion, then the trustees were to pay such income in such way as to enure and be beneficial to such beneficiary’s family, or to his education and support.—Held, that a creditor of one of the sons could not maintain a bill against the trustees and such son, to apply the future income to the payment of the debt. See Palmer v. Stevens, 15 Gray 343.</p> <p>Unless otherwise specified in the trust, the profits or income accumulating on a fund given to the beneficiary for life belong to him, and are not to be added to the corpus of the fund (Astope v. Goodall, 53 Ga. 318 ; Bazemore v. Davis, 55 Ga. 504. See Du Bose v. Carlide, 51 Ala. 590; Staggers v. Matthews, 13 Pick. Eq. 142); and such surplus is liable for his debts. Bailie v. McWhorter, 56 Ga. 183.</p> <p>Pope v. Elliott, 8 B. Mon. (ATy.) 56. A father bequeathed $25 per month to be disposed of or appropriated for the support of his son R., out of a trust fund in the executors’ hands.—Held, that the chancellor could not order the whole or any part of such support (which, by the absence of R. from the state, had accumulated to $225), to discharge a debt of R.’s, contracted before testator’s death.</p> <p>III. Where the family or children of the cestui que trust are, by the provisions of the trust deed, entitled to enjoy the income or profits with him during his life-time.</p> <p>A bequest to A. of an annuity for the benefit of his wife and family during the life of A., does not include A. (if he disclaim) so that a judgment creditor can reach his interest. Wallace v. McMicken, 2 Disney (Ohio) 564. See Kearsley v. Woodcock, 3 Hare 185 ; Whelan v. Peilley, 3 W. Va. 597; Bolles v. State Trust Co., 12 C. E. Gr. 308.</p> <p>Gamble v. Dabney, 20 Tex. 69. On a trust to maintain the grantor’s daughter and her children, free from her husband, and, after her death, to the sole use of her children,—Held, that the interest of the wife was not subject to execution at law, although the creditor may be entitled in equity to subject the surplus proceeds of the rents &c. to his debt.</p> <p>Cole v. Littlefield, 35 Me. 439. A testator gave to a trustee all of his estate, to apply the income to his wife as she should require, for her support and that of their minor children, with further direction to the trustee to invest the surplus of the income for any year to make up any deficiency, and to be paid to the children, with their several portions, at maturity.—-Held, that the wife may determine liow much of the income is requisite for their support, and that the trustee must pay her the whole of it, if she so requests.</p> <p>Loring v. Loring, 100 Mass. 340. On the following gift: “ I give to my wife my personal property for her benefit and support, and the support of my son, whilst she remains unmarried,”—Held, that she took such property in trust during her widowhood, the income of one half to be applied for her own benefit and support, and that of the other half for the support of the son.</p> <p>Chase v. Chase, 2 Allen 101. Under a will creating a trust fund, with directions to pay the income yearly to the testator’s son, “ for the support of himself and his family, and the education o‘f his children,” the wife and children can enforce, in equity, the due appropriation of part of the income for their benefit. See Bridgen v. Gill, 16 Mass. 522.</p> <p>Rippon v. Norton, 2 Beav. 63. Property was settled on J., until he should take the benefit of the insolvent act, and then trustees were to apply it in such manner and to such persons, for the board, lodging and subsistence of J. and his family, as they should think proper. J.’s wife had died, leaving three children. After becoming an insolvent,—Held, that J.’s assignees were entitled to one-fourth of his life interest. [See 7 Geo. IV, c. 57.]</p> <p>Page v. Way, 3 Beav. 20. Real and personal estate were conveyed to trustees to receive the rents and profits, and to pay and apply the same for the maintenance and support of the donor, his wife and children, if any ; or to permit the rents &c. to be received by said donor during his life, but without power to anticipate or charge the same.</p> <p>* ** * The donor became bankrupt. There was no issue of the marriage.— Held, that the trustees had a discretion to pay the donor the whole income, but that it was their duty to see that the wife was maintained; and a reference was made to ascertain what would be a proper allowance for the wife, the donor’s assignees in bankruptcy to take the rest. See Wetherell v. Wilson, 1 Keen 80; Kearsley v. Woodcock, 3 Hare 185 ; Garr v. Living, 28 Beav. 644.</p> <p>Wallace v. Anderson, 16 Beav. 533. By a settlement, trustees were, after the bankruptcy of the husband and the death of his wife, to pay the income “ in such manner for the maintenance and support, or otherwise for the benefit of the husband and the issue, as they might think proper.” — Held, that such discretion was not taken away by the bankruptcy of the husband and the death of the wife, so as to entitle the husband and the issue to take equally. After inquiry as to what had been properly applied for the maintenance of the issue,' the assignees were declared entitled to the surplus.</p> <p>Holmes v. Penny, 3 K. & J. 90. A voluntary settlement of a life interest, applicable to the maintenance of A., his wife and children, or any of them, at the uncontrolled discretion of the trustees, is valid, and the court can not apportion the income between A., his wife and children, so as to make A.’s part of it available for his creditors.</p> <p>Twopenny v. Peyton, 10 Sim. 487. A direction to trustees to apply during the life of A. (a bankrupt and lunatic) the whole, or such part of the interest of the fund, at such times, in such proportions and in such manner, for his maintenance and support, and for no other pur-' pose whatsoever, as they in their discretion should think most expedient, creates no interest to which his assignees in bankruptcy are . entitled.</p> <p>Wylie v. White, 10 Pick. Eq. 294. A testator bequeathed to his son W., during his natural life, the use and benefit of certain negroes, “ but the said negroes not to be removed from the state, nor to be disposed of by him or any other person whatsoever, but to remain exclusively for the annual support of my said son and family.”—Held, that while W.’s interest is not subject to sale under execution at law, it may be made liable in equity.</p> <p>loor v. Hodges, Speer’s Eq. 593. Under a trust to permit a husband, during the joint lives of himself and wife, to receive all the income to and for their own use and benefit, and after the husband’s death to transfer the fund discharged of any trust to the wife, if she survive, or to her issue or next of kin,—Held, that the husband’s interest could not be seized and sold under execution at law, because the trustees must have the title in order to carry out the trust after his death; nevertheless, equitable proceedings might be instituted to reach the husband’s interest during life.</p> <p>Hugely v. Robinson, 10 Ala. 702. A trust was given for the benefit of the donor’s son E., not subject to the payment of any of his debts, nor should the profits of the trust be applied to such payments, but held for the use and benefit of E. and his family during E.’s life, and then to E.’s devisees or heirs at law.—Held, that the propert3r intended to be used jointly by E. and his family, in specie, as the house, furniture, &c., cannot be severed or reached by creditors ; aider, as to any income in money &c. of which an account may be ordered, and E.’s share in the net product subjected to his debts.</p> <p>Hill v. McRae, 27 Ala. 175, 182. Property was bequeathed to be held, used and managed by a trustee, who was also empowered with the assent of the cestui que trust, T., to sell the property and re-invest the proceeds on the same trust. The trustee was forbidden to pay any debts of T., and was directed to pay over to T., from time to time, such part of the income of the said trust estate (or the whole, if required,) as might be necessary for the comfortable and reasonable support of the said T., and of his wife and children, should he have any, the same to be used by the said T., with power of testamentary disposition in T., and, on failure thereof, to his next of kin. T. was unmarried at the time of the testator’s death, but married afterwards, and his wife survived him.—Held, that his wife took a joint interest with him in such portion of the income as was necessary for their comfortable and reasonable support, and that no portion of the income could be subjected, in equity, to T.’s creditors.</p> <p>Roberts v. Hall, 35 Vt. 28. A farm, with the stock, was devised in trust for Gr. and his wife and children during the lives of G. and his wife, and then to be divided equally among the children; and that the trustees might permit G. to have the management of the property so long as, from his habits &e., they should think it safe and prudent so to do.—Held, that absolute ownership could not be inferred from the occupation of the farm and use of the stock &c. by G., for the benefit of his family, and that stock raised by G. from that devised was not subject to his debts. See Whitcomb v. Cardell, 42 Vt. 2A; Brown v. Williamson, 36 Pa. St. 338.</p> <p>Nickell v. Handly, 10 Gratt. 336. A trustee was directed so to use and conduct a farm, &c., as to be most advantageous to the interest and support of H. and her five children during her life-time. Judgments were afterwards recovered against EL, and after her discharge as an insolvent debtor, a creditors’ bill was filed.—-Held, that one equal sixth part of the trust property, or its annual product, could not be set apart for El. and each of her children, but the trustee must retain the whole and apply it to their support according to their several necessities; and that the creditors would only be entitled to EL’s ratable proportion of the surplus of the annual product remaining after the support of all of them had been provided for. See Coutts v. Walker, 2 Heigh 268 ; Armstrong v. Pitts, 13 Gratt. 235.</p> <p>On a judgment for a debt contracted after a solvent debtor had transferred all his estate to trustees, “ the interest to be appropriated to the maintenance and use of his family and himself during their lives," the court ordered the annual value of the debtor’s interest to be ascertained, and decreed that the trustee pay the debt when in funds. Cosby v. Ferguson, 3 J. J. Marsh. 264; Kempton v. Hallowell, 24 Ga. 52; Sice v. Burnett, Speer’s Eq. 579; Jones v. Fort, 1 Sich. Eq. 50; Creighton v. Clifford, 6 Sich. (N. S.) 188 ; but see McLaurine v. Monroe, 30 Mo. 462.</p> <p>Under such a settlement, debts of the husband cannot be charged on the prospective profits or income. Markham v. Guerrant, 4 Leigh 279.</p> <p>The statutes of the several states authorizing a sale or sequestration of the interest of a cestui que trust, only apply to cases where the cestui que trust holds the estate or income solely, and are construed strictly. Harrison v. Battle, 1 Dev. Eq. 541 ; Lynch v. Tilica Ins. Co., 18 Wend. 236 ; Bogart v. Perry, 17 Johns. 351 ; Ontario Bank v. Soot, 3 Paige 478 ; McGee v. Hussey, 5 Ired. (E. C.) Law 255 ; Anderson v. Briscoe, 12 Bush 344; Stewart v. McMartin, 5 Barb. 438'; see, also, Donalds v. Plumb, 8 Conn. 447; Blanchard v. Taylor, 7 B. Mon. 645; Samuel v. Salter, 3 Mete. (Ey.) 259 ; Bachelder v. Thompson, 41 Me. 539; Bridgman v. McKissick, 15 Iowa 260 ; Lang v. Sopke, 5 Sand/. 363 ; Brown v. Harris, 25 Barb. 134 ; Brown v. Tucker, 47 Ga. 485; Matthews v. McPherson, 65 N. C. 189; Campbell v. Foster, 35 N. 7. 361; Soosevelt v. Soosevelt, 6 Hun 31; Wetmore v. Truslow, 51 E. 7. 338.</p> <p>In construing such statutes strictly, the English decisions on 29 Car. II, c. 3, § 10, are followed. See Doe, Hull v. Greenhill, 4 B. & Aid. 684 ; Finch v. Earl of Winchelsea, 1 P. Wms. 277; Forth v. Duke of Norfolk, 4 Madd. 503.</p> <p>Clute v. Bool, 8 Paige 83. A direction to executors to set apart a fund sufficient to raise an annuity to be paid to a son for life in quarter-yearly payments, and the principal to his issue &c., creates such a fund as cannot be reached by creditors’ bill against the son, before the quarterly payments become due; nor would it pass to an assignee in insolvency. [See further, for application of statute of New York to this case.] Also, Degraw v. Clason, 11 Paige 136 ; Scott v. Nevius, 6 Duer 672 ; Markham v. Guerrant, 4 Leigh 279.</p> <p>Sider v. Mason, 4 Sand. Ch. 351, 2 Barb. Ch. 79. Under the New York statute, the surplus of an annuity for life, payable to A. halfiyearly out of the income of an estate devised to trustees, beyond what is necessary for his support, is liable for his debts. Miller v. Miller, 1 Abb. New Cas. 30, 7 Hun 208 ; Parker v. Harrison, 10 Jones & Spen. 150 ; Moulton v. de ma Carty, 6 Bob. 533.</p> <p>Genet v. Foster, 18 How. Pr. 50. Whether the whole income of a fund is necessary for the support of an annuitant, and whether any part of such income should be applied to satisfy a judgment, can not be determined by supplementary proceedings on an execution and the appointment of a receiver by the judgment creditor. The judgment debtor and trustees must be made parties.' See Scott v. Nevius, 6 Fuer 672; Locke v. Mabbett, 2 Keyes 457, 3 Abb. Ap. 68 ; Brown v. Tucker, 47 Ga. 485.</p> <p>Scott v. Nevius, 6 Fuer 672. A reference may be ordered to ascertain and fix the amount necessary for an annuitant’s support, and the trustees be directed to pay over the surplus for the satisfaction of a judgment creditor. See Bramhall v. Ferris, 14 N. Y. 41.</p> <p>Hannv. Van Voorhis, 15 Abb. Pr. (N. S.) 79, 5 Hun 425. An action to reach a surplus, arising upon a trust for the benefit of a debtor, can not be commenced before such surplus has accumulated. An injunction will not lie against the trustees, to restrain them from expending more than is necessary for the support &c. of the cestui que trust. See Graff v. Bonnett, 25 How. Pr. 470, 2 Bob. 54, 31 N. Y. 9.</p> <p>The creditors must show the existence of a surplus. Graff v. Bonnett, 31 N. Y. 9 ; Nickell v. Handly, 10 Gratt. 336.</p> <p>In determining what is a reasonable sum for the support of a cestui que trust, as provided by statute, the referee may take into consideration his situation in life and the condition in which he was left by the donor. Genet v. Beekman, 45 Barb. 382; Moulton v. de ma Carty, 6 Bob. 533.</p> <p>Independently of any statute, the remedy of a creditor, in such case, must be sought in chancery. Low v. Marco, 53 Me. 45 ; Gamble v. Fabney, 20 Tex. 69 ; Heath v. Bishop, 4 Bich. Fq. 46 ; Presley v. Badgers, 24 Miss. 520: Johnson v. Cushing, 15 N. H. 298.</p> <p>For illustrations of cases where chancery has sometimes controlled the discretion of an executor or trustee, see Clark v. Parker, 19 Ves. 1 ¡ JSforcom v. D’ O’Each, 17 Mo. 98; Brock v. Sawyer, 39 N. H. 547 ; Rudland v. Crazier, 3 DeQ. & J. 143; Walker v. Walker, 5 Madd. 424. Also,Smith v. Wildman, 37 Conn. 384 ; Sanderson’s Trusts, 3 K. & J. 497 ; Edge-worth v. Edgeworth, Beat. 328; Máhon v. Savage, 1 Sch. & Lef. Ill, 114; Drew v. Wakefield, 54 Me. 29Í. — Rep.</p>

<p>Motion to set aside inquisition.</p>

<p>Bill to foreclose. Petition of Oscar Marsh and others to be made parties.</p>

Bill for relief. On order to show cause why the defendant, Alexander Probasco, Jr., should not be attached for contempt, for a violation of the injunction.

<p>1. On a bill to set aside a transfer of property, alleged to have been obtained by duress, persons in whose favor certain charges on the lands thereby conveyed were made, are necessary parties. ■</p> <p>2. A bill which alleges that a feeble old man has, without consideration, transferred to his children all of his property amounting to $45,000, reserving to himself only an annuity of $1,200, inadequately secured, and without any provision whatever for his wife in case she survive him; and that such transfer was obtained from him by want of comprehension on his part, and duress and false representations as to its effect on the part of his children, shows sufficient equity, and will, therefore, be sustained on general demurrer.</p>

<p>A testator gave to his wife §5,000, to his son $1,000, and to A. and B. other legacies, and the income, use and profits of all the residue to his wife for life, with remainder to his son, subject to the payment of a legacy of. $1,000 to his daughter. Tie appointed his wife and M. executors. They proved the will, settled the estate, and had their final account passed. There remained about $13,000 of personalty, subject to §1,000 advanced by the widow to pay the debts of the estate, and real estate worth $13,000. The complainant (the widow) files her bill to set aside a conveyance of her life interest in the real estate, made to her son by means of his importunity, deceit and duress, and also to have returned to her custody and accounted for, the personalty of which he has also taken possession.—Held, on demurrer to the bill—</p> <p>(1) That the bill is not multifarious.</p> <p>(2) That M. (the co-executor) is not a necessary party, the estate being settled and the executors’ final account passed.</p> <p>(3) That A. and B. and the daughter are not necessary parties, the remedy of the former, if their legacies are unpaid, being against the executors, and that of the daughter being against the son,'whose estate in remainder is charged therewith.</p>

<p>A father, pending a compromise with his creditors, which included a mortgage on his homestead, gave a prior mortgage thereon to his daughter, to secure to her moneys alleged to have been advanced by her, and also for her services rendered in his family. The proofs as to the character of the loans and services, and also as to her bona fides, being unsatisfactory and contradictory, her mortgage was postponed to that of the creditors.</p>

<p>Bill for divorce. Motion for alimony pendente lite and counsel fee. On petition and affidavits on both sides.</p>

<p>Bill for relief. On petition to open decree and let in a defendant to answer.</p>

<p>Where representations were made by the holder of a mortgage for $7,000, that he had sold the mortgaged premises to the mortgagor for about $50,000; that it was first-rate property; that the land was ■ good and the timber thereon valuable; that the land would be more valuable after it was cleared; that the mortgage was a good mortgage; and that the interest thereon had been paid regularly—all of which ■were false and fraudulent'—Held, that they could not be regarded as simplex commendatio; and a conveyance of lands obtained thereby was set aside.</p>

<p>By the act of 1871 (Rev. p. 410), sheriffs were, for their services, allowed to add twenty-five per cent, to their fees, so long as the United States bankrupt act should remain in effect. By the act of 1877 (Rev. p. 1885), the act of 1871 was repealed, but with a proviso that the repealer should not affect or in anywise interfere with the fees of any sheriff who might be in office when such repealer took effect.—Held, that a sheriff who was in office at that time is not entitled to the additional twenty-five per cent, for services since September 1st, 1878. The act of 1871 expired by its own limitation at that date (September 1st, 1878), when the bankrupt law was repealed.</p>

<p>. 1. Where the holder of a first mortgage has received ample collateral security for its payment, the rights of a subsequent mortgagee cannot be defeated by the assignment of the first mortgage to a party who had full notice and knowledge of such other encumbrance and the equity of the holder thereof in respect to such collateral security.</p> <p>2. A mortgage held by J. B., covering several lots of land, had been reduced to $7,400 at the time when the mortgagor sold an unreleased lot to M. & B., with full covenants of warranty &e., receiving therefor a mortgage. In order to obtain releases of some of the other lots, the mortgagor assigned to J. B. two other mortgages, for $6,500, and his own note for $900. Afterwards, such mortgagor assigned to F. the M. & B. mortgage, representing to F. that it was a first mortgage. To secure another debt, the mortgagor and the complainants induced J. B. to assign to the complainants the $7,400 mortgage, which was taken by them with notice and knowledge of the equity of F.—Held, that, as to the amount of the collaterals, $6,500, the complainant’s mortgage must be held to be satisfied as against F.</p>

<p>Bill for injunction. On final hearing on bill and answer of Harmon H. Titus.</p>

<p>Bill for relief. On final hearing on bill and answer and two memorials of defendant, one to the board of aldermen of Jersey City, the other to the board of public works of that city.</p>

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

<p>Two lots, designated as 19 and 21, were mortgaged by R. to L., and represented by R. as having no prior encumbrance thereon. In fact, 19 was covered, together with other lots, by a prior mortgage, and was subsequently sold thereunder. R. promised to protect the equity of L. (who died before the foreclosure sale), and bought 19, accordingly, at that sale. After the delivery of the master’s deed to R., he mortgaged 19 to E.—Held, that E. was chargeable with notice of the record of the foreclosure suit, from which it appeared that L.’s mortgage was not satisfied, and also, with notice of L.’s equity against R. by way of estoppel, and—Held, also, accordingly, that L.’s mortgage is prior to E.’s, but that in satisfying it 21 must be sold before 19.</p>

<p>1. A non-resident testator held a mortgage on lands in the county of B., in this state.—Held, that the mere filing of an exemplified copy of his will in the surrogate’s office of B. county, does not qualify the executors to maintain suit to foreclose such mortgage, their right being objected to in the answer. They should take out letters testamentary.</p> <p>2. Query, Whether a corporation can be an executor in New Jersey?</p>

<p>A bill was filed by a father to set aside, on account of duress, a conveyance to his children of all of his property, valued at $45,000, by which he reserved to himself an annuity of $1,200, which had not been paid, but had been withheld by the defendants from the commencement of the suit, and on which he depended wholly for support.—Held, that, unless the arrears of the annuity were paid, a receiver would be appointed, and that before answer filed, and notwithstanding the allowance of a demurrer to the bill, which, however, was only for a defect as to parties.</p>

<p>A yacht was built and owned by four persons, under a written agreement that S. was to be the general manager at B., and C. the treasurer and disburser at P. The yacht was built at B., and delivered at P. to E., the complainant, who furnished one-fourtli of the contract price. Afterwards, without E.’s knowledge, the yacht was taken by S. from P. to B., and there, in E.’s absence, and without his knowledge, certain liens were filed against her, some of which were for work included in the contract for building, and others for alleged services or claims of S. and the other part-owners. Under these claims the yacht was sold at sheriff’s sale and bought by 8.—Held, that S. must, under the circumstances, be decreed to hold the yacht in trust for all of her owners, and that she be sold under the direction of this court, in order that a partition with due adjustment and allowance of claims of the owners may be made among them.</p>

<p>On petition of the defendant George M. Chapman, that the sureties in a bond given in this cause, under the forty-sixth rule, be ordered to pay the amount of the penalty of the bond into court, and that the petitioner may be paid thereout the amount of his damages sustained by reason of the injunction.</p>

<p>1. Where, in a suit for a divorce for gross cruelty, the testimony of the defendant in regard to his own conduct, as well as other matters, is shown to be untrue, his protestations of repentance and future reformation can not be entertained as a ground for refusing such divorce.</p> <p>2. English v. English, 12 O. E. Or. 579, distinguished.</p>

<p>1. In pleading, a statement of matters of fact in the form of charge, is sufficient, on general demurrer, where it is evident that a statement by way of allegation or averment was intended by the pleader.</p> <p>2. An assignee in bankruptcy may sue in this court to recover property conveyed by the debtor to defraud his creditors.</p>

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

Bill for relief. On motion on behalf of all the defendants to dissolve the injunction; on McFarlan’s part, on bill and affidavits and answer, and on the part of the other defendants, on the bill, and annexed affidavits. Also, on general demurrer by all of the defendants, except McFarlan.

<p>Equity has jurisdiction (and for that purpose may enjoin the further prosecution of suits at law) in a case which involves the relative rights, under their charters, of two corporations to the use of the waters of the same stream or streams; and such jurisdiction exists on the ground of both public and private necessity. In such eases, equity is not only the appropriate forum, but the only one where adequate relief in the premises can be administered.</p>

<p>1. Any writing which clearly appropriates a fund or property to a person, will, in equity, be esteemed an assignment. Equity disregards mere form.</p> <p>2. A suitor whose title is purely equitable, has no remedy at law, but must resort to equity.</p> <p>3. When the parties to a contract have expressed their meaning by plain words, there is nothing to construe, and in such a case all a court can do is to enforce the contract.</p> <p>4. A purchaser who co-operates with the vendor in the misappropriation of purchase-money which he knows was raised for the benefit of a third person, renders himself liable to the person defrauded to the extent of the fund misapplied with his connivance.</p>

<p>1. Property purchased by one copartner with the funds of the firm, and title taken in the name of his wife, is partnership assets.</p> <p>2. When it clearly appears on the face of the bill that the complainant’s right of action is barred, advantage may be taken of the statute of limitations by demurrer.</p> <p>3. The bar of the statute is as perfect an answer in equity as at law, to actions covered by the statute.</p> <p>4. The statute does not apply to such trusts as are not cognizable at law, and upon which a remedy can only be had in equity.</p>

<p>1. A complainant cannot make one case by his bill, and another by his proofs, and still have a decree.</p> <p>2. Title by adverse user rests upon the presumption of an actual grant which has been lost.</p> <p>3. To raise the presumption of a grant where title to an easement is asserted, it must be shown that the use has extended over a period of twenty years, and has been for that period continuous and peaceable.</p> <p>4. Proof of acquiescence by the owner of the servient lands, in the exercise of the adverse right, is indispensable in proving title to an easement by adverse user.</p> <p>5. Where the user has been exercised by force, or by permission, or in the face of protests and in defiance of resistance, a grant cannot be presumed.</p> <p>6. Resistance by words is sufficient to prevent the presumption of a grant of an easement.</p>

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

<p>1. The application of the maxim, that he who asks equity must do equity, is not limited to. any particular class of cases, but may be applied whenever it is necessary to the promotion of justice.</p> <p>2. The opinion of experts in handwriting is evidence of low degree.</p> <p>3. At common law signing is not necessary to the due execution of a deed, but it is made so by the statute of frauds.</p> <p>4. But if the grantor’s name is written in his presence and by his direction, it is his act, and he will not be permitted, in a court of equity, to repudiate a deed thus executed.</p> <p>17ote.—The construction given to the statute of frauds, is the same in equity as at law, (Morison v. Tumour, 18 Ves. 173, 183; McComb v. Wright, 4 Johns. Ch. 659, 666); and such construction must be strict, (Delventhal v. Jones, 53 Mo. 460, 463).</p> <p>Whatever may be the rule elsewhere as to the necessity of a signature to a deed, under the statute of frauds (Aveline v. Whisson, 4 Man. & Gr. 801; Cherry v. Homing, 4 Exch. 631; Cooch v. Goodman, 2 Ad. & El. (N. (S'.) 580; Armstrong v. Stovall, 26 Miss. 275; Herbert v. Turner, 6 Jur. 194; Vandenbergh v. Spooner, D. R. (1 Exch.) 316; Jeffery v. Underwood, 1 Ark. 108; Maulé v. Weaver, 7 Pa. St. 329, 332; Dutch v. Mead, 4 Jones & Sp. 427, 10 Alb. L. J. 336; Thomas v. Caldwell, 50 III. 138. See Brandt on Surety. Q 75 ; Browne on Frauds $ 355; 1 Broom & Had. Com. 725), there can be no doubt in this respect in New Jersey, under the express requirements of the. statute (Rev. p. 444, $ 1, 2).</p> <p>As to the place of signing (where the statute does not require the name to be subscribed. Davis v. Shields, 26 Wend. 341; People v. Murray, 5 iHll 468 ; James v. Patton, 6 N. Y. 9), it may be in any part of the instrument, provided an intention to bind the party appears. Smith v. Howell, 3 Stock. 349, and cases cited ; Adams v. Field, 21 Vt. 296 ; Brink v. Spaulding, 41 Vt. 96; Catón v. Catón, Ij. R. (1 Ch. Ap.) 137, (2 H. of I.) 127; McConnell v. Brillhart, 17 III. 354; Anderson v. Harold, 10 Ohio 399; Hubert v. Treherne, 3 Man. & Or. 743 ; Iiieth v. Kerr, 17 Ind. 284; Elliott v. Sleeper, 2 N. H. 525; Pequawkett Bridge v. Mathes, 7 N. II. 230; Zimmerman v. Sale, 3 Rich. 76. See Marshall v. Hann, 2 Harr. 425.</p> <p>In Peabody v. Ilewett, 52 Me. 33, it was held that where one jointly with others signs, seals and delivers an instrument supposed to be a perfect deed, but his name appears in no other part thereof, his interest in the premises described in such instrument is not thereby conveyed. See Frazer v. Ford, 2 Head 464; Whiteley v. Stewart, 63 Mo. 360; Stone v. Montgomery, 35 Miss. 83.</p> <p>As to the mode of signing, it seems well settled, both on principle and authority (notwithstanding the doubts expressed in Browne on Frauds, p. 12, founded on one- case in which the court was divided, Wallace v. McCollough, 1 Rich. Eq. 426), that a signature by another in the presence and by the direction of the grantor, is a good execution of a deed. Besides the cases cited by the learned vice-chancellor, the following may be referred to:</p> <p>In Stevens v. Vancleve, 4 Wash. C. C. 262, 269, an execution of a will by a testator having his hand guided, at his request, by a third person, was deemed valid ; and see Helshaw v. Langley, cited in JBenj. on Sales § 256 ; Cozzens's Will, 61 Pa. Si. 196; Vandruffv. Rinehart, 29 Pa. St. 232; Van Hauswick v. Wiese, 44 Barb. 494; Vines v. Clingfost, 21 Ark. 309 ; Riley v. Riley, 36 Ala. 496 ; Robins v. Coryell, 27 Barb. 556 ; Bailey's Case, 1 Curiéis 914; but see McElwaine’s Case, 3 C. E. Gr. 499; 1 Wms. on Ex'rs, p. 101, et seq.</p> <p>In Rex v. Languor, 4 Barn. & Add. 647, an indenture of apprenticeship (both the father and the boy being unable to write) was held binding where they desired a third person to write their names opposite two of the seals, and he did so in their presence.</p> <p>In Reinhart v. Miller, 22 Ga. 402, a marriage settlement was brought to the door of a room where the bride was preparing for the wedding ceremonj', and she requested the bearer, in the presence of a witness, to sign it for her. He withdrew to the yard adjoining and signed it there.—Held, a good execution. See Rhode v. Louthain, 8 Black/. 418.</p> <p>In Rime v. Brooks, 9 Ired. Law 218, a daughter testified that a servant of H. brought a bond to her father signed by H. and containing a seal For another name, with a request from II. to her father to sign it. Her father, by reason of infirmity, could not write, and directed her to sign it for him ; for that purpose he laid the paper on a table, and then went out of the house. She signed his name, as she had often done before, and delivered it to II.’s servant. The father made no objection afterwards.—Held, not to be such a signing in his presence as would bind the father.</p> <p>In Mackay v. Bloodgood, 9 Johns. 285, one partner read and approved an arbitration bond and consented that his copartner should execute it.—Held, that such execution, in the name of the firm, by the copartner, his partner being in the store at the time, although not in his immediate presence, was good. See, also, McDonald v. Eggleston, 26 Vt. 154, 156 ; McWhorter v. McMahan, Clarke's Ch. 400, 10 Paige 386.</p> <p>In Jansen v. McCahill, 22 Cal. 563, a married woman requested her daughter to sign her name to a mortgage, which was done in her presence.—Held, as valid as if it had been written by herself. See Videau v. Griffin, 21 Cal. 389.</p> <p>In Hudson v. Revett, 5 Bing. 368, a debtor conveyed his property in trust for his creditors, but the amount of one debt, being unknown, was left blank. The next day it was ascertained and filled in by his attorney, in his presence.—Held, a good execution of such deed.</p> <p>In Williams v. Woods, 16 Md. 220, an entry of a sale of goods made in a blotter by a clerk of defendants’ agent who stood by and directed such entry, was considered binding on the purchaser. See Johnson v. Mulry, 4 Roberts. 40J ; Graham v. Musson, 5 Bing. (N. C.) 603 : Durrell v. Evans, 1 H. & C. 174, 9 Jur. 104.</p> <p>In Frost v. Peering, 21 Me. 156, a husband, at his wife’s request, signed her name to a deed, several days after his own had been signed,~>and in her absence. It also appeared that she had subsequently stated several times that he did so at her request.—Held, sufficient to bar her dower. See 2 Scribner on Dower 276; Powell v. Monson, 3 Mas. 347 ; Slone v. Montgomery, 35 Mis's. 83 ; Dinsley v. Brown, 13 Gonn. 192; Hall v. Pedson, 10 Mich. 21; Barns v. Dyade, 6 Allen 305.</p> <p>In Bird v. Decker, 64 Me. 550, an illiterate son conveyed lands to his father, and executed the deed by orally authorizing another person to sign it in his presence, afterwards duly acknowledging it.—Held, to be a valid conveyance. See, also, Wood v. Goodridge, 6 Gush. 117 ; Mallonv. Story, 2 E. D. Smith 331; Harris v. Story, Id. 363.</p> <p>In Pierce v. Hakes, 23 Pa. St. 231, one witness, who was present at the transaction, testified that a married woman executed a deed by a third person taking hold of her hand and signing her name, which deed was then duly acknowledged.—Held, to constitute a good signing.</p> <p>In Speckels v. Sax, 1 E. D. Smith 253, a written lease was shown and read to a woman who took a pencil to sign it, but found that her name had been already written by her brother, who had himself signed as surety for the rent. She thereupon delivered the lease, stating that she supposed he had written her name and it was all right.—Held, in the absence of fraud, that there was a sufficient execution to bind her.</p> <p>In Henderson v. Barbee, 6 Blackf. 26, one partner, in the presence of the other, sealed a note and, with his consent, subscribed the names of both.—Held, to be the deed of both. See, also, Colly. onPartn. || 414, 478; 1 Am. Lead. Cas. *449 ; Lee v. Onstott, 1 Ark. 206 ; Cotten v. Williams, 1 Fla. 37. So, where one wrote the bond and the other sealed it. Witter v. McNiel, 3 Scam. 433 ; Potter v. McCoy, 26 Pa. St. 458.</p> <p>The incapacity of the party executing a deed or instrument by the hand of another need not be shown (Baker v. Lening, 8 Ad. & FI. 94); but the signing and authority should be proved by the signer. McKee v. Myers, Addis. (Pa.) 31. [See 1 Phil. Evid., note 165, as to this case.] Also, McMurtry v. Frank, 4 Mon. 39; Owen v. Barrow, 4 Bos. & Pul. 101.</p> <p>Whether an obligor authorized a third person to sign the obligation for him and in his presence, is a question of fact for the jury. Hawk■ ins v. Chace, 19 Pick. 502; Rhode v. Louthain, 8 Blackf. 413; Videau v. Griffin, 21 Cal. 389; Tapper v. Foulkes, 9 C. B. (N. 8.) 797.</p> <p>How far a subsequent acknowledgment of a deed before a magistrate, tends to cure informalities in the execution—see Bird v. Becker, Pierce v. Hakes, supra; Com’rs v. Chase, 6 Barb. 37 ; Bartlett v. Brake, 100 Mass. 174; Ingoldsby v. Juan, 12 Cal. 564 ; Pike v. Bacon, 21 Me. 280, 287; Armstrong v. Stovall, 26 Miss. 275, 282; Linsley v. Brown, 13 Conn. 192.</p> <p>Ball v. Bunsterville, 4 T. R. 313 (and the same remark applies to Henderson v. Barbee and other partnership cases supra), often cited in support of the position that a deed is valid if executed by another under the parol authority and in the presence of the grantor, seems distinguishable, because such signing by one partner, even in the absence of his copartners, would, on proof of prior parol authority, bind all of the parties to the instrument [Gibson v. Warder, 14 Wall. 244; Cadyv. Shepherd, 11 Pick. 400; Price v. Alexander, 2 Greene [Iowa) 427 ; Bay v. Lafferty, 4 Ark. 450; Mackay v. Bloodgood, 9 Johns. 285 ; McCart v. Lewis, 2 B. Mon. 267; Ely v. Hair, 16 B. Mon. 230; Swan v. Stedman, 4 Mete. (Mass.) 548; Fox v. Norton, 9 Mich. 207; Wilson v. Hunter, 14 Wis. 683 Cockroft v. Claflin, 64 Barb. 464; see Tappan v. Bedfield, 1 Hal. Ch. 339); or, on proof of subsequent parol ratification (Yarborough v. Monday, 2 Dev. 493, 3 Dev. 420; Fleming v. Dunbar, 2 Hill (S. C.) 532; Herbert v. Hanrick,' 16 Ala. 581; Gunter v. Williams, 40 Ala. 561; Hawkins v. Hastings Bank, 1 Dill. 462;. Skinner v. Dayton, 19 Johns. 513 ; Gram v. Seton, 1 Hall 262; Smith v. Kerr, 3 N. Y. 144; Lawrence v. Taylor, 5 Hill 107; Pettis v. Bloomer, 21 How. Pr. 317 ; Darst v. Both, 4 Wash. C. C. 471; Holbrook v. Chamberlin, 116 Mass. 155; Drumright v. Philpot, 16 Ga. 424; Hayes v. Seachrest, 13 Iowa 455 ; Bond v. Aitkin, 6 Watts & S. 165 ; Johns v. Batlin, 30 Pa. St. 84; McNutt v. Strayhorn, 39 Pa. St. 269; Gwin v. Booker, 24 Mo. 290 ; Peine v. Weber, 47 III. 41; Lowery v. Drew, 18 Tex. 786; 1 Am. Lead. Cas. *450; Chit, on Con. 352; Turbeville v. Byan, 1 Humph. 113; Bussell v. Annable, 109 Mass. 72) ; whereas an individual cannot by parol authorize another to execute a deed in his absence, nor ratify it, by parol, after such execution (Smith v. Dickinson, 6 Humph. 261; Harford v. McNair, 9 Wend. 54; Blood v. Goodrich, 9 Wend. 69, 12 Wend. 524; Newton v. Bronson, 13 N. Y. 587 ; Videau v. Griffin, 21 Cal. 389 ; Despatch Line v. Bellamy Co., 12 N. H. 205 ; Grove v. Hodges, 55 Pa. fit. 504); although the rule in Massachusetts is otherwise. McIntyre v. Park, Í1 Gray 102. Compare Rhode v. Louthain, 8 Black/. 413; Hunter y. Parker, 7 M. & W. 322; Frost v. Deering, 21 Me. 156 ; ÍSoames v. iSpencer, 1 Dowl. & R. 32 —Rep.</p>

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

<p>1. As to debts existing at the time a voluntary conveyance is made, tbe law raises a conclusive presumption of fraud, but a subsequent creditor can only impeach such a conveyance by showing fraud in fact.</p> <p>2. A subsequent creditor may avoid a voluntary deed on the ground that it was made to defraud existing creditors, but, in order to do so, he must show debts still outstanding which existed when the deed alleged to be fraudulent was made.</p> <p>3. Payment by a grantor of all his debts existing at the time he makes a voluntary conveyance, repels the idea that he thereby intended to defraud his creditors.</p>

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

<p>1. A wife will never suffer her person to be debauched until her affections are corrupted.</p> <p>2. To prove adultery by circumstances, a criminal desire and an opportunity to gratify it, must be shown. Where these both concur, guilt is presumed.</p> <p>3. Criminal desires may be inferred from strong expressions of attachment, stolen interviews and a clandestine correspondence.</p>

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

On petition and order to show cause why an order giving leave to sue at law on an injunction bond, should not be rescinded.

<p>1. Negligence by a railroad company does not relieve a person attempting to cross its track from the duty of exercising ordinary care and prudence.</p> <p>2. When a person is killed by collision with a locomotive, if it appears that his carelessness materially contributed to the disaster, his .next of kin have no right to damages.</p> <p>3. A person approaching a railroad crossing is bound to look and listen, and if he fails to do so, and injury ensues, he is without remedy; or if, using his eyes and ears, he sees or hears an approaching train, and foolishly tries the experiment of crossing in advance of it, and fails, his failure will be esteemed his own fault.</p>

On petition of Jacob Kimble, and proofs, and order to show cause why final decree shall not be opened and bill dismissed as to petitioner.

<p>On bearing, on demurrer..</p>

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

<p>The delivery of a note by the holder to the maker, with intent thereby to discharge the debt, does discharge it.</p>

<p>On appeal from a decree of the chancellor, reported in 2 Stew. 457.</p>

<p>On appeal from a decree of the chancellor, reported in 3 Stew. 124.</p>

<p>On appeal from a decree of the vice-chancellor, reported in 2 iStew. 222.</p>

<p>1. If a party having charge of the property of others, so confounds it with his own that the line of distinction cannot be traced, all the inconvenience of the confusion is thrown upon the party who produced it, and it is for him to distinguish his own property or lose it.</p> <p>2. A junk dealer, by fraudulent collusion with the employes of a railroad corporation, obtained large quantities of old iron &e. at much less than the actual weight or value. On delivery it was thrown indiscriminately on other heaps of old iron &c. belonging to him, so as to be indistinguishable.—Held, that he must forfeit the whole mass to the company.</p> <p>Note.—To work a forfeiture of the whole mass, where one has confused his own goods with those of other persons, two things are requisite, (1) that the confusion be made fraudulently, and (2) that after such confusion the articles be incapable of identification or apportionment.</p> <p>I. No forfeiture is caused by an involuntary mixture or accession.</p> <p>If A. turn his sheep among B.’s, A.’s creditors cannot levy on B.’s part of the whole flock (Kingsbury v. Pond, 3 N. H. 513 ; see Wildey v. Cox, 25 Mich. 116); nor, by cattle being confounded and driven away with others on the highway (Young v. Vaugh, 1 Houst. 331; Brooks v. Olmstead, 17 Pa. St. 24; Brownell v. Flagler, 5 Hill 282; Van Valkenburgh v. Thayer, 57 Barb. 196; Wellington v. Wentworth, 8 Mete. (Mass.) 548 ; Brown v. Boyce, 68 III. 294). Where cattle trespassing mingled with those of the plaintiff, and communicated to them a dangerous disease,—Held, admissible as affecting the damages (Anderson v. Buckton, 1 Str. 192; Barnum v. Van Dusen, 16 Conn. 200; see Jeffrey v. Bigelow, 13 Wend. 518; Cooke v. Waring, 2 IT. & C. 332; Mullett v. Mason, D. R. (1 C. P.) 559). Pelts piled by a debtor on those of another, will not render the utter’s pelts liable to the former’s creditors (Gillman v. Hill, 36 N. H. 311); or, pork and lard so commingled (Iluffv. Earl, 3 Ind. 306; see Buckley v. Gross, 3 B. & 8. 566); or, grain (Starr v. Winegar, 3 Hun 491; Low v. Marlin, 18 III. 286 ; Nowlen v. Colt, 6 Hill 461 ; Seymour v. Wyckoff, 10 N. 7. 213 ; Lewis v. Whiltemore, 5 N. II. 366 ; Wilson v. Nason, 4 Bosw. 155 ; Samson v. Rose, 65 N. 7. 411; Kauffmann v. Schillinger, 58 Mo. 218 ; Rahilly v. Wilson, 3 Dill. 420 ; Sims v. Glazener, 14 Ala. 695 ; Inglebright v. Hammond, 19 Ohio 337 ; Morgan v. Gregg, 46 Barb. 183; Pierce v. O’Keefe, 11 Wis. 180 ; Adams v. Meyers, 1 Sawy. 306 ; 6 Am. Law Rev. 450; Thompson v. Conover, 1 Vr. 329, 3 Vr. 466; South Australian Ins. Co. v. Randall, L. R. (3 P. C.) 101; Johnston v. Brown, 37 Iowa 200); or, oil in tanks (Wilkinson v. Stewart, 85 Pa. St. 255); or, hay (Stock v. Stock, Poph. 38; Robinson v. Holt, 39 N. H. 563); or, earth taken from the plaintiff’s land (Riley v. Boston Water Power Co., 11 Cush. 11; see Mather v. Trinity Church, 3 Serg. & R. 509 ; Muzzey v. Davis, 54 Me. 361; Connecticut R. R. v. Holton, 32 Vt. 43 ; Northam v. Bowden, 11 Exch. 70 ; Higgon v. Mortimer, 6 Car. & P. 616); or, if the confusion be caused by the action of a freshet (Moore v. Erie Railway Co., 7 Dans. 42; Sheldon v. Sherman, 42 Barb. 368, 42 N. 7. 484 ; see Gentry v. Madden, 3 Ark. 127 ; Washburn v. Gilman, 64 Me. 163 ; Rogers v. Judel, 5 Vt. 223; Foster v. Juniata Bridge Go., 16 Pa. St. 393); or, by a tempest (Spence v. Union Ins. Co., L. R. (3 C. P.) 427 ; see Barker v. Bates, 13 Pick. 255 ; Whitwell v. Wells, 24 Pick. 25; Proctor v. Adams, 113 Mass. 376 ; Rogers v. Gilinger, 30 Pa. St. 185 ; Jones v. Moore, 4 7. & G. 351, 356 ; but see, also, Buekout v. Swift, 27 Cal. 433 ; Waterman v. Dutton, 6 Wis. 265, 276); or, by the effect of a fire (Buckley v. Gross, 3 B. & S. 566 ; see Pope v. Garrard, 39 Ga. 471; Curry v. Schmidt, 54 Mo. 515); or, by any natural cause (Stale v. Burt, 64 N. G. 619 ; see Salisbury v. Uerchenrocler, 106 Mass. 458; Lehigh Bridge Go. v. Lehigh Goal Go., 4 Rawle 9; Broom’s Max. 171).</p> <p>In Hill v. Robison, 3 Jones (IV. G.) 501, ten sacks of salt were bought and paid for by B. with the funds of A., and at the same time B. bought and paid for five sacks with his own funds; all the sacks were delivered to him unmarked, and, without separating any of them, B. delivered all of them to C., his creditor, with instructions to deliver ten of them to A. C. converted them all to his own use.—Held, that A. could not maintain trover against C., because he could show title to no specific property.</p> <p>In D’Eyncourt v. Gregory, L. R. (3 Eg.) 382, certain tapestries bought by a testator, but hung, after his death, by the tenant in tail, were held no't to have become annexed to the realty, but to belong to the executor.</p> <p>In Sharp v. United States, 12 Ct. of 01. 638, large quantities of cotton belonging to different owners, had been captured by the federal army ; part of it was destroyed, part used, and all marks to identify the remainder lost.—Held, that each owner was entitled to his proportion of the remainder.</p> <p>An owner of trees does not lose his property by a trespasser converting them into timber {Mo. 20; Pierrepont v. Barnard, 5 Barb. 364; Final v. Backus, 18 Mich. 218); or, into rails and posts {Snyder v. Vaux, 2 Bawle 423 ; Millar v. Humphries, 2 A. K. Marsh. 446); or, into railroad ties {Smith v. Gouder, 22 Ga. 353; Lake Shore B. B. v. Hutchins, Sup. Ot. Ohio, Dec. 1877, 6 Cent. L. J. 436); or, into staves {Heard v. James, 49 Miss. 236); or, into fire-wood {Halleck v. Mixer, 16 Cal. 574; Moody v. Whitney, 34 Me. 563 ; Bremer v. Fleming, 51 Pa. St. 102); or, into shingles (Betts v. Lee, 5 Johns. 348; Chandler v. Fdson, 9 Johns. 362; Bice v. Hollenbeck, 19 Barb. 664; see Bockwell v. Saunders, 19 Barb. 473; Bennett v. Thompson, 13 Ired. 146); or, into a flat-boat {Burris v. Johnson, 1 J. J. Marsh. 196; but see Potter v. Mardre, 74 N. C. 36); or, saw-logs into boards {Brown v. Sax, 7 Cow. 95; Baker v. Wheeler, 8 Wend. 505; Davis v. Easley, 13 III. 192; see Pierce v. Schenck, 3 Hill 28; Gregory v. Stryker, 2 Denio 628); or, a raft of logs into fire-wood {Eastman v. Harris, 4 La. An. 193); or, wood into coal (Biddle v. Driver, 12 Ala. 590; Curtis v. Groat, 6 Johns. 169); or, corn into whisky {Sdsbury v. McCoon, 3 H. 7. 379, 4 Denio 332); or, hides into leather (Hyde v. Cookson,-21 B&rb. 492; see Salmon v. Horwitz, 2 Am. Lam Beg. 640); or, hides deposited in vats (Bond v. Ward, 7 Mass. 123 ; see Brakely v. Tuttle, 3 W. Va. 86); or, leather converted into saddles (Dunn v. Oneal, 1 Sneed 106 ; in this case, however, there was a bailment; see Arnott v. K. P. B. B., 19 Kan. 95). Oil taken from wells Is not lost to the land-owner by a trespasser merely carrying it away in his own barrels (Hail v. Seed, 15 B. Mon. 479).</p> <p>A trespasser, by building a house on lands of another, loses the house [Ewell on Fiat. 57, et seq.-, Waterm. on Tresp. § 681; also, Bonney v. Foss, 62 Me. 248; Mathes v. Dobschuiz, 72 III. 438 ; Gannon v. Hare, 1 Term. Gh. 22; Poor v. Oakman, 104 Mass. 309; Beers v. St. John, 16 Conn. 322; Waterman v. Dutton, 6 Wis. 265 ; Sogers v. Woodbury, 15 Pick. 156 ; Holtzapple v. Phillebaum, 4 Wash. G. G. 356; see McKelwayv. Armour, 2 Stock. 115 ; Wall v. Osborn, 12 Wend. 39 ; Leíand v. Gassett, 17 Vt. 403 ; Taylor v. Townsend, 8 Mass. 411; Grayv. Oyler, 2 Bush 256 ; Smith v. Goodwin, 2 Me. 173 ; Fuller v. Tabor, 39 Me. 519 ; Bussell v. Brown, 63 Me. 203 ; Humphries v. Newman, 51 Me. 40; Finch v. Alston, 2 Stew. & P. 85; Whitaker v. Gawthorne, 3 Dev. 389 ; Seese v. Jared, 15 Ind. 142; Drum v. Hill, 40 Iowa 506 ; Mills v. Sedick, 1 Neb. 437 ; Emerson v. Western Union S. S. Go., 75 III. 175; Carpentier v. Small, 35 Cal. 346 ; Samsden v. Dyson, 12 Jur. [N. S.) 506 ; Jones v. Chappell, L. R. (20 Eg.) 539; Linahan v. Barr, 41 Conn. 471; Bennet v. Clemence, 6 Allen 10; Gibson v. Hutchins, 12 La. An. 545; also, Carson v. Clark and other cases infra). The secretary of a corporation bought books with his own money, in which he entered subscriptions to the stock, &c.—Held, that the property of the books was in the corporation [State, N. & N. Y. R. B. v. Goll, 3 Vr. 285). Two broken chains belonging one to A. and one to B., were carried by B., without A.’s consent, to a blacksmith, who made them into two chains, thereby adding two or three of A.’s links to B.’s chain.—Held, that the title did not thereby vest in A. (Puleifer v. Page, 32 Me. 404).</p> <p>Furs left in a debtor’s hands after an insolvent assignment, and made up by him into hats, were held to have lost their identity, so that the title was vested in the debtor (Worth v. Northam, 4 Ired. 102; see Swift v. Barnum, 23 Conn. 523; Gregory v. Stryker, 2 Denio 628; Dresser Manf. Co. v. Waterston, 3 Mete. (Mass.) 9); rails and posts put on lands, as a fence, by a trespasser, belong to the land-owner (Ricketts v. Dorrel, 55 Ind. 470; see Hines v. Ament, and other cases infra); and a railroad track (Van Keuren v. Central R. R., 9 Vr. 165; Hunt v. Bay State Iron Co., 97 Mass. 279 ; Shoemaker v. Simpson, 16 Kan. 43, 3 Cent. L. J. 616, 693; see Miss. & Tenn. R. R. v. Devaney, 42 Miss. 555 ; Ewell on Fixt. 58, note).</p> <p>As to vacant lands, the general rule is that the purchaser takes all improvements &c. previously put thereon by a trespasser; as trees felled and cut into cord wood (Brock v. Smith, 14 Ark. 431 ; Turley v. Tucker, 6 Mo. 583, overruling James v. Snelson, 3 Mo. 393. Contra, Keeton v. Audsley, 19 Mo. 362; Carpenter v. Lewis, 6 Ala. 682; Pennybecker v. McDougall, 48 Cal. 160; see, also, Perkins v. Hackleman, 26 Miss. 41; Hungerford v. Bedford, 29 Wis. 345; Dreyer v. Ming, 23 Mo. 434; Waterm. on Tresp. §819; Winter v. Shrewsbury, 2 Scam. 283 ; Alternóse v. Hufsmith, 45 Pa. St. 121). So, where the injury was done between the time of purchase and the actual entering into possession (Blevins v. Cole, 1 Ala. 210; Gale v. Davis, 7 Mo. 544). The rule extends to crops planted on vacant lands by a trespasser (Boyer v. Williams, 5 Mo. 335; Floyd v. Dicks, 14 Ark. 286; Dasor v. Quails, 4 Blacltf. 286; see Stochwell v. Phelps, 34 N. Y. 363 ; Deilly v. Dingkmd., 39 Iowa 106; JSludd v. Hobbs, 17 Ñ. H. 524); or any improvements, such as fences, fruit trees, buildings &c., made by a squatter (Carson v. Clark, 1 Scam. 115; Mitchell v. Billingsley, 17 Ala. 391; Hatfield, v. Wallace, 7 Mo. 112; Campbell v. Com., 2 Dob. (Fia.) 791; Cook v. Foster, 7 III. 652; Collins v. Bartlett, 44 Cal. 371); but shingles made thereon were held to belong to the maker (Deader v. Moody, 3 Jones {N. C.) 372); hay cut by one in adverse possession of public lands, cannot be replevied by a prior possessor (Page v. Fowler, 28 Cal. 605, 37 Cal. 100; see Johnson v. Barber, 5 Gilm. 425; Siockwell v. Phelps, 34 N. Y. 363); turpentine collected from trees by the lessee of a stranger in possession without title, was held not to belong to a subsequent purchaser from the state (Branch v. Morrison, 6 Jones (N. C.) 16; Branch v. Campbell, 7 Jones (IF. C.) 378; see, also, Duncan v. Potts, 5 Stew. & Port. 82).</p> <p>Stone tortiously taken from a quarry, dressed, and laid as a pavement, belongs to the owner of the lot (Jackson v. Walton, 28 Vt. 43 ; see Woodman v. Pease, 17 N. H. 282); materials removed from a house by a mortgagor, and sold and used by his purchaser in building a house on other lands, cannot be followed by the mortgagee (Peirce v. Goddard, 22 Pick. 559; Madigan v. McCarthy, 108 Mass. 376; also, Beers v. St. John, 16 Conn. 322; Salter v. Sample, 71 III. 430; seo, however, Hamlin v. Parsons, 12 Minn. 108; Wilmarth v. Bancroft, 10 Allen 348; Dawson v. Powell, 3 Bush 663; Beard v. Duralde, 23 La. An. 284; Strickland v. Parker, 54 Me. 263; Buckout v. Swift, 27 Cal. 433). A pole was taken by a trespasser, and used by him in erecting scaffolding; it was retaken by the owner, and in consequence of its removal, the scaffolding was weakened, fell and injured the trespasser when he went thereon.— Held, that the owner was not liable {White" v. Twichell, 25 77.620). Bine trees cut by a mortgagor become personalty by the severance, and the mortgagee has no claim to them after foreclosure and sale (Berth-old v. Holman, 12 Minn. 335 ; King v. Bangs, 120 Mass. 514 ; Gooding v. Shea, 103 Mass. 360; Peterson v. Clark, 15 Johns. 205 ; but see Gore v. Jenness, 19 Me. 53 ; Whidden v. Seelye, 40 Me. 247); see, also, Kircher v. Schalk, 10 Vr. 335 ; Rich v. Baker, 3 Denio 79 ; Crouch, v. Smith, 1 Md. Ch. 401 ; Hutchins v. King, 1 Wall. 53 ; Hewes v. Bickford, 49 Me. 71; Lafl n v. Griffith, 35 Barb. 58 ; Bruce's Case, 16 Nat. B'k Iieg. 318 ; Langdon v. Paul, 22 Vt. 205 ; Lackas v. Bahl, 43 Wis. 53 ; Cuiry v. Schmidt, 54 Mo. 515; O'Dougherty v. Felt, 65 Barb. 220; Moers v. Wait, 3 Wend. 104; Thomas v. Crofut, 14 N. Y. 474; Richardson v. York, 14 Me. 216; Waierm. on Tresp. 772, 777, 840); the husband of a cestui que trust of lands, entering and cutting trees, with the trustee’s consent, acquires no interest therein which can be subjected to his debts {Baldwin v. Porter, 17 Conn. 473 ; see Porch v. Fries, 3 C. E. Gr. 204; Mitchell v. Stetson, 2 Gush. 435 ; Glidelen v. Taylor, 16 Ohio St. 509 ; Dickinson v. Codwise, 1 Sand/. Oh. 214).</p> <p>A recovery in ejectment does not entitle the party to reclaim several millions of bricks made by the former occupant from the clay of the lands, under a supposed title (Lampión v. Preston, 1 J. J. Marsh. 454; see Harris v. Newman, 5 How. (Miss.) 654; Anderson v. Hapler, 34 III. 436 ; Moseley v. Miller, 13 Bush 408; O'Hagan v. Cline-smith, 24 Iowa 249 ; Key v. Woolfollc, 6 Rob. (La.) 424; Miller v. Phillips, 31 Pa. St. 456); the same rule was applied to crops gathered before a hob. fac. pass, executed, or right of entry established (Brothers v. Hurdle, 10 Ired. 490 ; Thomasv. Moody, 11 Me. 139 ; Godrington v. Johnstone, 1 Beav. 520; see Hooser v. Hays, 10 B. Mon. 72; Pennybecker v. McDougall, 46 Cal. 661 ; Doe v. Withericlc, 3 Bing. 11; Hodgson v. Gascoigne, 5 B. & A. 88; Simpkins v. Rogers, 15 III. 397; Altes v. Hinckler, 36 III. 255; Nichols v. Dewey, 4 Allen 386) ; and to timber cut on lands of one, not in possession (McClain v. Todd, 5 J. J. Marsh. 335; Cochran v. White-sides, 34 Mo. 417; King v. Baker, 25 Pa. St. 186; see Rogers v. Potter, 3 Vr. 78; Yahoola Co. v. Irby, 40 Ga. 479 ; Shields v. Henderson, 1 Lilt. 239 ; Ivey v. McQueen, 17 Ala. 408). An innocent purchaser from trespassers who cut trees and made them into railroad ties, is liable for their value as trees only, and not for their value, increased three-fold by the trespassers, as ties (Lake Shore R. R. v. Hutchins, Sup. Ct. Ohio, Dec. 1877, 6 Cent. L. J. 436; but see Nesbitt v. St. Paul Lumber Co., 21 Minn. 491). An innocent purchaser of a steam-engine hired and wrongfully annexed to the freehold by the bailee, may hold it against the owner (Fryatt v. Sullivan Co., 5 Hill 116,7' Hill 529; Goddard v. Bolster, 6 Me. 427 ; Franlcland v. Moulton, 5 Wis. 1 ; Woodruff Iron Works v. Adams, 37 Conn. 233 ; see Cope v. Romeyne, 4 McLean 384).</p> <p>II. An intentional, but not fraudulent, mixture, it seems, works no forfeiture.</p> <p>(Pratt v. Bryant, 20 Vt. 333; Ryder v. Hathaway, 21 Pick. 298; Att'y-" Gen. v. Fullerton, 2 Ves. & B. 263 ; Clark v. Griffith, 24 N. Y. 595 ; see, however, Brakeley v. Tuttle, 3 W. Va. 86; Redington v. Chase, 44 N. H. 36 ; Goddard v. Bolster, 6 Me. 427 ; Clark v. Miller, 4 Wend. 628 ; Col-burn v. Simms, 2 Hare 543, 554).</p> <p>In The Distilled Spirits, 11 Wall. 356, the government, after forfeiture of certain spirits, ran them through leaches mingled with other spirits belonging to the same party.'—Held, that the identity of the liquor was not destroyed by the rectifying process, nor thereby forfeited by the government, and that each was entitled to his portion.</p> <p>In Gordon v. <Tenney, 6 Mass. 465, after a deputy-sheriff levied on certain goods in a store, another deputy levied on other similar goods, standing in front of the store, and carried them into the building where they were intermixed with the rest.—Held, that the second deputy thereby lost his levy. Also, Sawyer v. Merrill, 6 Pick. 477 ; James v. Burnet, Spen. 635.</p> <p>Bank-bills, securities &c. not capable of identification, are forfeited by confusion with similar chattels (Panton v. Panton, 15 Ves. 440 ; Taylor v. Plumer, 3 M. & S. 562 ; Drake v. Taylor, 6 Blatch. 14 ; Ward v. Eyre, 2 Bulst. 323 ; Fellows v. Mitchell, 1 P. Wms. 81, 83 ; Levy v. Gavanagh, 2 Bosw. 100. See Tower v. Appleton Bank, 3 Allen 387 ; Skidmore v. Taylor, 29 Gal. 619; Goffin v. Anderson, 4 Black/. 395 ; Moody v. Keener, 7 Port. [Ala.) 218 ; Pettit v. Boujon, 1 Mo. 64; Sager v. Blain, 44 N. Y. 445).</p> <p>Bricks laid in a wall, under a contract which was afterwards forfeited, the contract relet and the same bricks removed and piled up to be again used, became realty by their first use, and are not subject to levy, as personalty, by the creditors of the first contractor (Moore v. Cunningham, 23 III. 328 ; Beard v. Duralde, 23 La. An. 284; Wadleigh v. Janvier, 41 N. H. 505).</p> <p>Where milk was contributed by several farmers and worked into cheese by a company which sold it, each farmer sharing the expense and profit proportionately, the cheese was held not to be subject to levy by the creditors of one of the farmers (Butterfield v. Lathrop, 71 Pa. St. 225).</p> <p>In Wetherbee v. Green, 22 Mich. 311, Gr., a tenant in common, authorized his co-tenant S., by parol, to sell timber from the lands. S. being indebted to C. and B., conveyed to them by warranty-deed, the undivided half of the land, on a parol condition to reconvey on payment of their debts. S., after such conveyance, sold a quantity of the timber to the plaintiff, who cut the same into hoops. On replevin brought by Gr., C. and B. for the hoops,—Held, that the timber cut under a supposed proper authority being worth $25 and the hoops made therefrom worth $700, the title passed to the plaintiff. Also, Baker v. Wheeler, Lock. Rev. Gas. 470; Alfordv. Bradeen, 1 Nev. 228; Elwell v. Burnside, 44 Barb. 447 ; Brown v. Sax, 7 Gow. 95 ; Haskins v. Record, 32 Vt. 575 ; Harmon v. Gartman, Harp. 430.</p> <p>In Gray v. Parker, 38 Mo. 160, certain trunks belonging to the plaintiff disappeared and were found, as claimed, among other trunks, at defendant’s trunk-store.—Held, that no tortious taking being proved, it was error to instruct the jury that if the defendant willfully took and carried away the trunks, and afterwards mixed them with his own so that it was impossible to identify them, then the plaintiff was entitled to recover any of defendant’s goods to the amount taken, although such instruction would have been correct, if the defendant had been shown to be a willful trespasser.</p> <p>In' Alley v. Adams, 44 Ala. 609, after the execution of a chattel mortgage on a steam-engine &c., the mortgagor attached several other machines thereto.—Held, that since they were capable of identification and detachment, the mortgagee could not claim them; see Randolph v. Gwynne, 3 Hal. Gh. 88; Perry v. Pettingill, 33 W. H. 433 ; Fowler v. Hoffman, 31 Mich. 215 ; Jewett v. Patridge, 12 Me. 243 ; Robinson v. Holt, 39 N. H. 557; Cochran v. Flint, 57 H. H. 514; Dunning v. Stearns, 9 Barb. 630: Adams v. Wildes, 107 Mass. 123: Hamilton v. Rogers, 8 Md. 301.</p> <p>In Stuart v. Phelps, 39 Iowa 14, the holder of a chattel-mortgage on a crop of growing corn, brought trover against the defendant for its conversion. The latter claimed by virtue of a judgment and execution against the mortgagor.—Held, that the plaintiff was entitled to recover the value of the corn in the crib in which it had been put by the defendant, after husking, and that if the defendant had confused it with his own corn in the crib, the duty of separating his own lay on him; also, that the cost of husking and gathering could not be deducted. See, also, Benjamin v. Benjamin, 15 Conn. 347 ; Ellis v. Wire, 33 Ind. 127 ; Backenstoss v. Stabler, 33 Pa. St. 251; Johnson v. Tantlinger, 31 Iowa 500 ; Cook v. Steel, 42 Tes. 57 ; Lewis v. Whittemore, 5 N. H. 364; Herman on Chat. Mort. % 45.</p> <p>The rule is the same, if a purchaser from the mortgagor with notice confound his own goods with those covered by the mortgage' (Fuller v. Paige, 26 IB. 358; Preston v. Leighton, 6 Md. 88 ; Willard v. Rice, 11 Mete. (Mass.) 493 ; see Southworth v. Isham, 3 SanaIf. 448).</p> <p>If a mortgagee in possession mixes his own goods with those mortgaged, a failure to select his own, at the mortgagor’s request, is evidence of a conversion (Simpson v. Carletm, 1 Allen 109; see Armstrong v. McAlpin, 18 Ohio St. 184).</p> <p>In Ryder v. Hathaway, 21 Pick. 298, it was held, that if a plaintiff mingled wood cut from different lots, supposing it all to be his own, and afterwards the defendant, knowing that a part of it came from the plaintiff’s land, took the whole, he would be held liable as a trespasser.</p> <p>In Panton v. Panton, 15 Ves. 440, a clei’k remitted his own money, together with that of his employer, to a broker, to be invested in securities which became so confused that the property could not be distinguished.—Held, that he must lose the whole. See Wharton on Agency, ¶§ 243, 279 ; Hall v. Page, 4 Qa. 428 ; Wiley v. Rixy, 43 Ga. 438 ; Beach v. Forsyth, 14 Barb. 499 ; Lord Chedworth v. Edwards, 8 Ves. 46, 50; Griffith v. Bogardus, 14 Cal. 410; Goddard v. Bolster, 6 Me. 427. So, if, after such confusion, the money be stolen, the burden of proof is on the agent to prove that the part stolen was his principal’s. Bartlett v. Hamilton, 46 Me. 435.</p> <p>The rule is the same as to confusion by an administrator or trustee (Perry on Trusts, $$ 128, 447, 463, 837 ; Lake v. Park, 4 Harr. 108; Frey v. Lemarest, 1 G. E. Gr. 236 ; Elmer v. Loper, 10 C. E. Gr. 475 ; Bracken-ridge v. Holland, 2 Blackf. 2>Tl; Ringgold v. Ringgold, 1 Har. & Gill 11; Crane v. LeCamp, 7 C. E. Gr. 614); and as to creditors the cestui que trust thereafter stands the same as any other creditor. (Nevins v. Lisborough, 1 Gr. 343 ; Janeway's Case, 4 Nat. Bank. Reg. 100 ; Thompson's Appeal, 22 Pa. St. 16.)</p> <p>III. A confusion of goods by mistake creates no forfeiture.</p> <p>In Weymouth v. C. & N. R. R. Co., 17 Wis. 556, wood was cut by the plaintiff and piled near the track of the defendants, for sale. By mistake, they took the wood away, and piled it, indiscriminately, with other wood of their own.—Held, that the proper measure of damages was its value at the time of the conversiorf, with such increase as it may have received from any cause independent of the defendants’ acts. Also, Moody v. Whitney, 38 Me. 174; Forsyth v. Wells, 41 Pa. St. 291 ; Grant v. Smith, 26 Mich. 201; Farwell v. Price, 30 Mo. 587 ; but see Bennet v. Thompson, 13 Ired. 146; Smith v. Gouder, 22 Ga. 353 ; Benjamin v. Benjamin, 15 Conn. 347; Hill v. Canfield, 56 Pa. St. 454; Coxe v. England, 65 Pa. St. 212; Bailey v. Shaw, 24 N. II. 297; Hungerford v. Bedford, 29 Wis. 345; Pearson v. Inlow, 20 Mo. 322.</p> <p>In Winchester v. Craig, 33 Mich. 205, defendants, who by mistake' trespassed and cut loas on lands of the plaintiff and transported them with their own to market, were allowed the expense incurred by them in getting the logs from the land to the market. Also, Foote v. Merrill, 54 N. H. 490 ; Final v. Backus, 18 Mich. 218 : see Chipman v. Hibba/rd, 6 Cal. 162; Whitbeck v. N. Y. Gent. B. Ii., 36 Éarb. 644 ; Kiev v. Peterson, 46 Pa. St. 357; Young v. Lloyd, 65 Pa. St. 197; Webster v. Moe, 35 Wis. 75; Isle Boyal Mining Co. v. Hertin, Sup. Ct. Mich., Oct. 1877, 17 Alb. L. J. 114; Nesbitt v. St. Paul Lumber Co., 21 Minn. 491.</p> <p>In Neuison v. Anderson, 2 Ired. 42, A. cut a tree on his own land, which accidentally fell on B.’s land..—Held, that A. washable therefor in trespass. See, also, Lambert v. Bessy, Bay. T. 421; Wilson v. New-bury, L. B. (7 Q. B.) 31; Scullin v. Dolan, 4 Daly 163 ; Wright v. Compton, 53 Ind. 337.</p> <p>In Leonard v. Belknap, 47 Yt. 602, ten turkeys belonging to the plaintiff wandered on defendant’s land, and there mingled with and were shut up with his turkeys. In trover, after a demand,—Held,, that since plaintiff, as shown by the evidence, was entitled to ten of them, although he could not identify all of his own, that defendant’s offer to allow him to take all that he could identify and any others that he might select up to a certain number—which, however, was less than ten—constituted a conversion.</p> <p>In Smith v. Morrill, 56 Me. 566, the plaintiff trespassed on defendants’ lands, cut their logs, put bis own mark on them, and rafted them all together. The defendants, thereupon, with an intention of only reclaiming their own, actually took more. In trover, for the value of the excess,—Held, that they were not liable, as wrong-doers, until the plaintiff had pointed out his property and demanded it. Also, Bryant v. Ware, 30 Me. 295; Barron v. Cobleigh, 11 N. H. 559; May v. Bliss, 22 Vt. 477; Boot v. Bonnema, 22 Wis. 539.</p> <p>In Parker v. Walrod, 13 Wend. 296, 16 Wend. 514, a plaintiff, while a wagon of the defendant was in his possession, attached his own whiffletrees &c. thereto, and they were retaken by the defendant, without knowledge of the change.—Held, that trespass would not lie to recover the appendages. Query, whether there was any remedy. See Clark v. Wells, 45 Vt. 4.</p> <p>In Hines v. Ament, 43 Mo. 298, a fence placed on another’s lands, by reason of mistake of boundaries, was held not to lose its character as personalty. Also, Matson v. Calhoun, 44 Mo. 368; Whitfield v. Bodenhamer, Phillips (N,. C.) 362; Stuyvesant v. Tompkins, 9 Johns. 61, 11 Johns. 569; Wentz v. Fincher, 12 Ired. 297; Doherty v. Thayer, 31 Cal. 140; Waterm. on Tresp. $ 715; Ogden v. Lucas, 48 III. 492; Bobertson v. Phillips, 3 Jowa 220; compare Burleson v. Teeple, 2 Greene (la.) 542; Pfeiffer v. Grossman, 15 III. 53; Howard v. Black, 42 Vt. 253; Brown v. Bridges, 31 Iowa 138; Gidden v. Bennett, 43 N. H. 306 ; State v. Graves, 74 N. C. 396; McLaughlin v. Johnson, 46 III. 163 ; Huntington v. Whaley, 29 Conn. 391; Millar v. Humphries, 2 A. K. Marsh. 446.</p> <p>In Treat v. Barber, 7 Conn. 274, the plaintiff had in her possession, in a trunk, certain articles of clothing &c. of her own; which trunk also contained other similar articles claimed by her and also claimed as her father’s. On the service of an attachment by his creditors, she refused to select from the trunk her own property, or to point out which belonged to her father.—Held, that there was no confusionjof goods, since no actual fraud was shown, that the placing of the goods in the same trunk might have been accidental, and that the defendants were liable in trespass.</p> <p>IV. As to a fraudulent mixture, the intent is always a question for the jury.</p> <p>Taylor v. Jones, 42 N. H. 25 ; Wood v. Hewett, 10 Jur. 390. See Watkins v. Gale, 13 III. 152.</p> <p>In Wingate v. Smith, 20 Me. 287, mill logs were fraudulently taken by another, converted into boards and so intermixed with his own as not to be distinguished.—Held, that replevin would lie for the whole pile of boards.</p> <p>In Ames v. Mississippi Boom Co., 8 Minn. 467, it was held that a plaintiff in replevin must identify logs claimed by him, notwithstanding the fact that defendant may have driven them with his own, so as to render them indistinguishable. Also, Wood v. Falos, 24 Pa. St. 246.</p> <p>In Loomis v. Green, 7 Greenl. 386, it was held that if one willfully turns his own logs adrift in a stream, and they, in floating down, become confounded with others, the burden of proof is on him to identify his own. See, also, Hesseltine v. Stockwell, 30 Me. 237.</p> <p>In Heard v. James, 49 Miss. 236, the defendants willfully cut trees on the plaintiff’s lands, and converted them into staves.—Held, in replevin, that the-' were not entitled to deduct the value of their labor from the value of tue staves. See, also, Smith v. Qouder, 22 Ga. 353 ; Buchmaster v. Mower, 21 Vt. 204; Single v. Schneider, 30 Wis. 570; Heroic v. Young, 55 Pa. St. 176 ; Firmin v. Firmin, 9 Hun 571; Nesbit v. St. Paul Lumber Go., 21 Minn. 491.</p> <p>As to a fraudulent mixture of literary matter, see Mawman v. Tegg, 2 Puss. 385, 391; Lewis v. Fullarton, 2 Beav. 11; 2 Morgan's Law of Lit. 616.</p> <p>In McDowell v. Pissell, 37 Pa. St. 164, a brother-in-law of a judgment debtor fraudulently mingled his own goods, old iron, scrap &c., with that upon which creditors of the other owner were entitled to levy, and manufactured the whole.—Held, that he must lose the whole. See Redington v. Ghase, 44 N. H. 36.</p> <p>In Beach v. Schmultz, 20 III. 185, a cargo of different kinds of lumber was shipped to M.; there, without the knowledge of the plaintiff, a quantity of the same kind of lumber was put on board by Gr., and the whole reshipped to C.—Held, that the creditors of Gr. could not attach his interest in the cargo, because it could not be identified, and that Gl. forfeited the quantity he had added. Also, Jenkins v. Steanka, 19 Wis. 139.</p> <p>In Seavy v. Dearborn, 19 N. H. 351, a plaintiff was held to have lost all right to reclaim goods which he had willfully intermixed with those of a third person in a store. Also, Smith v. Welch, 10 Wis. 91; Willard v. Rice, 11 Mete. 493.</p> <p>"V. In the following cases the rule has been adopted, that even where the confusion has been fraudulent, the goods, if still capable of identification or apportionment, may be reclaimed.</p> <p>Ysc-HesseUine v. Stochwell, 30 Me. 237, a trespasser out the plaintiff’s logs, marked them with his own mark, and drove them with his own logs.—Held, that even if .such acts were fraudulent, there could be no forfeiture, because the logs being of equal value, each owner was entitled to his proportion of the whole. Also, Stearns v. Raymond, 26 Wis. 74.</p> <p>. In Goodenow v. Snyder, 3 Greene (la.) 599, the same rule was applied in case of a forcible taking of gold dust by the defendant, and mixing it with his own.</p> <p>In Schulenberg v. Harriman, 2 Dill. 398, 21 Wall. 44, logs were cut without license from lands belonging to the state of Minnesota, and intermingled with logs cut from other lands, so as not to be distinguishable.—Held, under the Minnesota statute, that the stale could replevy her proportion from the whole mass. In Stephenson v. Little, 10 Mich. 433, the court were divided as to this point. See, also, Ballou v. O’Brien, 20 Mich. 304.</p> <p>In Wood v. Hales, 24 Pa. St. 246, after the plaintiffs sent a large number of cloths.to be printed, the sheriff seized all of the goods in the factory, and the plaintiffs then claimed two hundred and fifty-two pieces, and, not being able to identify their own, they claimed that number of similar goods.—Held, that if the printers had actually confused them, the plaintiffs’ claim must be allowed; aliter, if they had sold the goods and had on hand similar goods which they intended to put in their place.</p> <p>In Wooley v. Campbell, 8 Vr. 163, a trespasser planted oysters in plaintiff’s bed.—Held, that he could not set up that the oysters taken by the plaintiffs were not natural ones or those planted by them.</p> <p>In Powers v. Kindt, 13 Kan. 74, cattle belonging to two owners trespassed on lands, and it was impossible to determine the exact damage done by the cattle of each owner.—Held, that a verdict apportioning the damage according to the number of cattle belonging to each owner, was good. See Durham v. Goodwin, 54 III. 469.</p> <p>An officer is not justified in levying on several articles where only some of them belong to the defendant, if those not belonging to him are capable of identification, as furniture in a house (Bond, v. Ward, 7 Mass. 123 ; Smith v. Sanborn, 6 Gray 134; Colwill v. Peeves, 2 Camp. 575; but see Taylor v. Jones, 42 N. H. 25 ; Armstrong v. Me Alpine, 18 Ohio St. 184); or, cattle (Holbrooke. Hyde, 1 Vt. 236); or, boots and shoes in uoxes marked (Tufts v. McClintoak, 28 Jifa. 424); or, crockery standing on a shelf (Treat v. Barber, 7 Conn. 274); or, horses in separate stalls (Moore v. Bowman, 47 N. H. 494).</p> <p>In Albee v. Webster, 16 N. H. 362, a sheriff finding goods of A., the execution debtor, mingled with those of B., called upon B. to separate his therefrom, and, on refusal, levied on the whole.—Held, that he was not a trespasser. Also, Sawyer v. 'Merrill, 6 Pick. 477; Shumway v. Rutter, 8 Pick, 443; Weil v. Silverstone, 6 Bush 698; Wellington v. Sedgwick, 12 Cal. 469 ; Smith v. Sanborn, 6 Gray 134; Robinson v. Holt, 39 N. H. 557; Roth v. Wells, 41 Barb. 194, 29 N. T. 471; but see Kingsbury v. Pond, 3 N. H. 511, where the confusion was without the fault of the plaintiff, and the sheriff was held liable as a trespasser ; and also, Wilson v. Lane, 33 N. H. 466; Treat v. Barber, 7 Conn. 274.—Rbp.</p>

Bill for account, &c. On petition of the Elizabethtown Savings Institution that the amount decreed to be due to the defendant from the complainants, and by them paid into this court, be paid over to the petitioners on account of a judgment recovered by them against the defendant, Simeon J. Ahern, in the state of New York; in supplemental proceedings whereon it was ordered-by a judge of the supreme court of that state, on the 2d of March, 1878, that the amount due from the…

<p>Lands owned by a partnership were sold to a corporation consisting mainly of the partners. No deed was executed, but possession was taken and improvements made by the corporation. In a suit by a receiver of the corporation to compel a formal conveyance for the benefit of the creditors,—Held,</p> <p>(1) That a mortgage on the premises, duly authorized by the corporation, but in fact executed by the former owners (the money derived therefrom was in fact expended by and for the benefit of the corporation), was an encumbrance thereon from the date of its execution.</p> <p>(2) That a mortgage given by the corporation (before the conveyance) was also an encumbrance.</p> <p>(3) That a judgment recovered against one of the partners, after the premises had been sold to the corporation and possession openly taken by it, was not, in equity, a lien thereon.</p> <p>(4) That although in ordering the partners to execute a formal conveyance, the wife of one, entitled to dower, could not be compelled to join therein, yet her husband, having received a full consideration and being bound to give a title clear of encumbrance, might be decreed to indemnify the corporation against her claim, unless she voluntarily relinquishes it.</p>

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

<p>A husband excluded his wife from their bed-room, and imputed to her physical malformation and consequent incapacity for the marital relation. He removed to another house, to which he denied her admittance, on the ground of such alleged incompetency, notwithstanding her expressed willingness to return to him and do her duty. —Held, that she was entitled to relief on her bill for maintenance.</p>

<p>A release of a grantee’s assumption of a mortgage debt, given by an insolvent grantor after notice of foreclosure, without consideration and for the sole and admitted purpose of defeating the mortgagee’s claim in equity for deficiency, is void in equity.</p> <p>Note.—Under what circumstances a release of an assumption of a mortgage, made by the grantor to his immediate grantee, may be valid as against the mortgagee, see Stephens v. Gasbaaker, 8 Hun 116; also, Hartley v. Harrison, 24 N. Y. 170.—Rep.</p>

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

<p>A complainant alleged that he was induced to execute certain deeds, by the false representations of the defendants, and also through his own ignorance of the fact that the lands had been owned by his mother, and devised by her to him. The evidence utterly failed to substantiate the bill.—Held, that he could not be allowed to change his position and claim relief on the ground that, although he voluntarily executed the deeds to the defendants, he did so under a mistake as to the extent of his interest in the lands conveyed.</p>

<p>1. A wife, in order to settle a suit in which, her husband was involved, and which he was very desirous of compromising, and which disturbed and, perhaps, distressed him, gave a mortgage on property the title whereto was in her.—Held, that the circumstances did not amount to duress.</p> <p>2. A certificate of acknowledgment is not invalidated or affected by the want of recollection of the grantor or the commissioner as to the transaction.</p> <p>3. A release by an attorney in fact of the holder of a mortgage, the latter having accepted the consideration from the former with knowledge of the release,—Held, binding on the principal though the attorney exceeded his authority in taking the release.</p>

<p>On a bill to foreclose a mortgage belonging to a wife, a mere aver- ■ ment that the owner of the premises falsely alleges that it is unsafe for him to pay the amount of the mortgaged debt, because of a foreign attachment issued against complainant’s husband, without stating any connection between the attachment proceedings and the mortgage, is insufficient.</p>

<p>In a partition of lands, in equity, between one tenant in common and the purchaser of his co-tenant’s share under an execution at law, where the co-tenant has wasted part of the land before the sheriff’s sale, the part so wasted must be set off to such purchaser.</p>

<p>1. A foreign corporation took a mortgage on lands in this state, to secure a loan already made to the mortgagor, on stock collateral, which became depreciated.—Held, that although its charter may not have authorized the taking of a mortgage in another state, as an original investment, yet the corporation might take such mortgage by way of additional security for such loan, and the mortgage, in its hands, is valid.</p> <p>2. Where a receiver of a foreign corporation, complainant, has been appointed in another state, since the beginning of the suit, he may be substituted as complainant on such terms as may be imposed by the court, for the protection of creditors of such corporation, who are citizens of this state. _</p>

<p>Petition for divorce from the bond of matrimony. On final hearing.</p>

<p>On bill and general demurrer by De Hart.</p>

<p>On a bill for dower in lands of an intestate, of three kinds : (1) that which was subject to a mortgage put thereon by the intestate; (2) that which was purchased by him subject to a mortgage, the amount of which was allowed to him as so much of the purchase-money, and the payment thereof assumed by him; and (3) that which belonged to him as a member of a partnership,—Held,</p> <p>(1) That, as to the first class, 'the personal estate must exonerate the land, and dower be assigned therefrom as if unencumbered.</p> <p>(2) That, as to the second class, a mere assumption of a mortgage by a decedent is not such proof of an intention to make the debt his own as renders his personal estate primarily liable therefor, and dower must be assigned therefrom, subject to the mortgage.</p> <p>(3) That, as to the third class, dower must be assigned, subject to the equitable adjustment of the claims of the partnership creditors, and of the partners inter sese.</p>

<p>A surety on a guardian’s bond paid more than his aliquot share on account of his liability for such guardian’s waste. He afterwards died, and also one of his co-sureties.—Held, that the executor of the first-named surety might, without having recovered a judgment at law, file a creditor’s bill against the administrator and daughter of the co-surety, to set aside a mortgage given voluntarily by the co-surety to such daughter, and also to recover, from the co-surety’s estate, the excess paid by his testator.</p>

<p>Bill to foreclose, on petition and proofs.</p>

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

<p>Bill for partition. On general demurrer.</p>

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

Petition of receivers for injunction to compel the Board of Public Works of Jersey City, to furnish water at the engine-house of the New Jersey Midland Railway company there, for use in the locomotive engines, &c., of the company. On petition and answer, and order to show cause why the injunction should not be granted.

<p>A prior judgment creditor was made a party to a foreclosure bill, but, his judgment having been paid by a surety for the debt on which the judgment was recovered, he entered no appearance, and there was no proof before the master as to the amount due on the judgment, nor any direction in the final decree as to its payment.—Meld, that, as to the surety, the priority and lien of the judgment were unaffected by the proceedings, and a petition by him to be made a party, in order to protect his rights, was dismissed.</p>

<p>Bill for construction of will and directions. On bill, answers and consent of counsel.</p>

<p>That an owner of part of the premises covered by a mortgage, receives the rents therefrom and refuses to apply them on account of the interest due on such mortgage, the taxes thereon being also unpaid, and there being no personal security, and the premises being insufficient, justifies the appointment of a receiver pending foreclosure.</p>

<p>That an owner of part of the premises covered by a mortgage receives the rents therefrom, and refuses to apply them on account of the interest due on such mortgage, and there being no personal security, and the premises being insufficient, justifies the appointment of a receiver pending foreclosure, although the unpaid taxes on the premises may be a lien subsequent to the mortgage.</p>

<p>Bill by executors for construction of will and directions.</p>

<p>A mortgage and lease given to a wife as part of a family settlement, protected in equity by requiring payment out of the deceased husband’s personal estate of a mortgage in suit for foreclosure, which, if foreclosed, would deprive her of her security. •</p>

<p>On an application to equity to aid a mortgagee, who was prosecuting an ejectment at law to obtain possession of the property under his mortgage, a receiver was appointed. It appeared that the mortgagor was insolvent and had removed from the premises and given possession to another who occupied for his own use without paying rent; and it appeared, also, that the mortgagor had committed waste, and threatened to commit more, and that the premises were an insufficient security.</p>

Bill to foreclose. On petition to set aside sheriff’s sale under fi. fa. for sale of the mortgaged premises, and for leave to defend.

<p>Bill to foreclose. On final hearing on bill, answers and replications.</p>

<p>A decree directed the payment of certain moneys to the complainants therein, as to some of them to them or to their solicitor, and as to the other to her. The complainants’ solicitor served on the solicitor of the defendants a copy of the decree, with a notice endorsed thereon, that he had a lien on the moneys therein directed to be paid. The defendants’ solicitor concluding that the complainants’ solicitor had, in fact, no claim upon the money, paid it over to the complainants.— Held, that the defendants were liable for the amount of the lien of the complainants’ solicitor for services and disbursements; and that a reference should be ordered to ascertain the amount of such lien, etc.</p>

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

<p>A testatrix gave to A. the interest on $2,000 from the time of her death, provided A. survived B., and, in that event, after A.’s decease, the $2,000 to be equally divided among A.’s children. But if A. did not survive B., then, at A.’s death, the $2,000, together with the accrued interest, was “ to go to and be equally divided between ail my nieces and my nephew W. and the children of my deceased nephew S.” A. died before B., and between the time of testatrix’s death and A.’s death'certain of her nephews and nieces died, including W.—Held,</p> <p>(1) That the interests of all of the nieces and of W., although contingent on the death of A. before B., vested at the decease of the testatrix, and, consequently, the shares of those deceased before A. were transmissible to their several next of kin.</p> <p>(2) That the children of S. took per capita with testatrix’s nieces and W.’s representative, no contrary intention appearing in the will.</p>

<p>Bill for relief. On general demurrer to bill.</p>

<p>Bill to foreclose.</p>

On order to show cause why an order directing the receiver of the defendant, an insolvent corporation, to sell certain steam engines, boilers, &c., as personal property, should not be set aside or modified.

Bill to foreclose. On final hearing on bill and answers of Mahlon Fox and Peter R. Williamson, and agreement of counsel that cause be heard on bill and answers and briefs.

<p>Certain commissioners, authorized by statute, made a contract for the improvement of a public road, with M. & N., who gave sureties for its faithful execution. Afterwards, with the commissioners’ approval, M. assigned his interest to N., who, before the work was finished, made an assignment to G. for the benefit of his creditors. The sureties of M. & N., by a subsequent, independent contract with the commissioners, completed tlie work. By the original contract it was provided that so much of the money due the contractors under it as might be considered necessary by the commissioners, would be retained by them until any suits or claims against them for damages or for arrears in payment to workmen, or for material furnished, should have been settled and evidence to that effect furnished to the commissioners. G. filed a bill against the commissioners for an account, discovery, etc., to which they put in a demurrer, because the sureties of M. & N., and also persons holding claim's against N. for labor or materials furnished on the work, had not been made parties.—Held, that none of them being necessary or even proper parties, the demurrer should be overruled.</p>

<p>The fact that the evidence to prove a deed, absolute on its face, defeasible, is very conflicting, and that the conclusion that it was merely a mortgage was reached only by the preponderance of the evidence, is good reason for adhering to the general rule that the mortgagee is entitled to his costs on a bill to redeem.</p>

<p>A sheriff was directed by complainants’ solicitor to stop the advertisement of a sale under foreclosure, because an injunction restraining such sale had issued out of a federal court. The sheriff nevertheless continued to adjourn the sale from week to week for nearly three years, no notice of such adjournments being given, or required to be given by statute, in any newspaper. After the injunction was dissolved, and without any further or other notice to subsequent encumbrancers or other parties in interest, he sold the premises, realizing an amount far below their value.—Held, that the sheriff’s action in the adjournments could not, under the circumstances, be regarded as a substantial compliance with the statute, and that there was such surprise on the parties interested, by reason of want of notice, and such consequent injury to their rights, as justified the court in setting aside the sale on terms.</p>

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

<p>A complainant sought to obtain a new trial in equity on the ground that the attorney of the plaintiffs in the suit at law (the defendants in this court) fraudulently concealed a written agreement, which, it was insisted, materially affected the plaintiffs’ claim, to the great advantage of the defendants. It appeared that, before the suit was commenced, the plaintiffs’ attorney handed the agreement to the defendants’ attorney (not the counsel who tried the cause for them, however), for examination. It appeared, also, that the person who negotiated the transaction (an advance of money) which resulted in the agreement, and who made the agreement, and who professed to have been acting therein as the agent of the defendants, was a witness for the plaintiffs; that he was accessible to the defendants and their counsel, both before and at the time of the trial, but they did not examine him on the subject of the existence of the agreement, or of any such agreement. Such examination was to be expected, because the defendants claimed that in the transaction the witness acted for himself, and not for the defendants. It appeared, also, that there was no concealment on the part of the plaintiffs of the character of their demand.—Held, that, under the circumstances, the complainants had no claim to relief.</p>

<p>Bill for relief. On order to show cause, heard on bill and affidavits on both sides.</p>

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

<p>One of a number of bondholders who had entered into an agreement for the purchase of the mortgaged premises at the sale under the execution in the foreclosure proceedings, applied for an order setting aside the sale (the property had been bought by the combination at the sale) on the ground that the purchasing committee of the combination had, contrary to the agreement under which the combination was formed (that is, after the time limited in the agreement for coming in), let in other bondholders; also, that they had stifled competition at the sale by purchasing, after an adjournment of the sale and before the sale took place, for the account of a railroad company which came in subsequently and after the limited time, the bonds of a person who was a determined bidder when the property was first put up for sale.—Held, that the objection that other bondholders were let into participation in the benefits of the combination agreement after the time limited therein, could not, under the circumstances, find favor in equity, and that the alleged stifling of competition was the act of the agents of the petitioner, and it did not appear that it had affected his interest injuriously in any way.</p>

<p>A father bought a farm and caused it to be conveyed to his son by deed duly recorded. The son entered into possession of the property and lived upon it. After he went into possession, he contracted debts on the credit of his ownership of the farm. Subsequently, at his father’s request, as they said, he conveyed the property to his father, without consideration and on the allegation that the latter had never intended to give the farm to him, and that the son was not aware that the conveyance had been made to him.—Held, that the deed to the father was fraudulent as against the creditor.</p>

<p>1. Where a testator, by his will, gave the residue of his estate to his widow durante viduitate, and directed that, after she should cease to be his widow, his executors should sell his estate, real and personal, remaining, and gave the proceeds of the sale to such of his children as should then be living, in equal shares,—Held, that the interest of the children in the land was subject to the power'of sale, and that the power was not liable to be defeated by one or more (less than the whole number) of the beneficiaries thereunder, to the prejudice of the others or any of them, and that, after the sale, it was too late to exercise the power .of election. Therefore, that the purchaser of the real estate at the executors’ sale took title clear of a levy under an execution on a judgment against one of the children.</p> <p>2. A notice given by the sheriff to the executor, that he held an execution on the judgment, and had made a levy thereunder, when, in fact, no execution had been delivered to him,-—Held, not to be notice of the execution. It was a notification of the alleged existence of facts which really had no existence, and was, therefore, of no importance, and imposed no duty on the executors.</p>

<p>Bill for account, &c. On exceptions to master’s report.</p>

<p>Although, by the statute concerning evidence {Rev. p. 378), a party cannot, in case the adverse party sues or is sued in a representative capacity, render his own testimony competent by calling such adverse party, yet the statute does not preclude him from calling such adverse party as his own witness.</p>

<p>The receipt by a mortgagee’s attorney, to whom the mortgage was made (in fact for the mortgagee, but not so expressed in the instrument), of a sum of money from the mortgagor’s agent, under an agreement between them subsequent to the loan, as bona fide compensation for examining the title to the premises mortgaged, which compensation was paid out of the loan, does not make the loan usurious.</p>

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

<p>A. conveyed land to B. The latter subsequently sold it to C. A., by his bill, alleged and sought to establish an express trust in his favor in the consideration money of the deed from B. to C. The proof failed.—Held, on the ground of variance, that he could not, under the bill, recover the money by proof that the conveyance from him to B. was merely voluntary. If the conveyance was merely voluntary, no resulting trust would arise therefrom.</p>

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

<p>The residue of an estate was given to a widow for life, and after her death to her children. No provision was made for their support, meanwhile, except that advances might be made to them by the widow. She was sole executrix, and pledged certain stocks of the estate as collateral security for her own debts. Some of the children filed a bill against her creditors to obtain the stock. The stock produced no income, and had depreciated very much in market value. The widow had greatly wasted the estate.—Held, that the court would not order a sale for the purpose of investing the proceeds and appropriating the income for the benefit of the creditors during the widow’s life-time; and that, under the circumstances, in view of the great waste of the estate that she had committed, she had no interest for the creditors to take.</p>

<p>In order to file a bill of review upon the discovery of new matter, the rule is that the matter must not only be new, but it must be such as the party, by the use of reasonable diligence, could not have known.—Held, that the evidence set up to support the petition in this case did not fulfill either requirement of the rule.</p>

<p>1. The note of a donor is not the subject of a gift.</p> <p>2. From the mere fact that a child renders service to a parent, the law will not imply a promise to pay. As between them, an express promise must be shown, or circumstances from which a promise must necessarily be implied.</p> <p>3. This court has power to decree the surrender and cancellation of a worthless negotiable instrument, though a complete defence at law exists; but, to justify a resort to this court, it must appear that the defence at law will be attended by uncertainty, or that the surrender of the instrument is necessary to full relief, or that the person who alone has the right to defend is under a strong bias in favor of the plaintiff.</p>

<p>1. The validity of a deed must be determined by facts existing at the time of its execution; it cannot be vitiated by facts arising ex post facto.</p> <p>2. A court of equity must always aim to act upon broad principles of justice, disentangled as much as possible from little technicalities.</p> <p>3. The court has power to order an amendment even on final hearing. but it is a power never exercised except when the ends of justice render it absolutely necessary, and its exercise will not abridge the right of defence.</p> <p>4. An appellate tribunal will sometimes reverse a decree and send a cause back to a court of original jurisdiction, in order that an amendment may be made so that the real merits of the controversy may be settled.</p> <p>5. An acknowledgment of the payment of the purchase-money in the body of the deed, or by a receipt, will not operate as a waiver or discharge of the vendor’s lien, if the purchase-money has not, in fact, been paid.</p>

<p>On motion to suppress depositions.</p>

<p>On motion to dissolve injunction, heard on bill and affidavit, and answer and affidavit.</p>

<p>On petition of George Haring. Order to show cause and depositions.</p>

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

<p>On final bearing, on bill, answers and proofs.</p>

On motion for order directing payment of the- proceeds of sale of mortgaged premises. Heard on proofs taken orally before the vice-chancellor.

<p>On petition for a remedy for damages alleged to have been sustained in consequence of the negligence of the receiver in operating the railway under his charge. Heard on proofs taken orally.</p>

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

<p>On final hearing, on bill and answer, and proofs taken orally before the vice-chancellor.</p>

<p>1. Moneys belonging to the state cannot he taxed by a municipal corporation, and hence the lien of mortgages given by a citizen to the trustees for the support of public schools, or to the chancellor, in his official capacity, cannot be subordinated to the lien of municipal taxes assessed on the mortgaged premises after such mortgages were given, notwithstanding the charter declares that such taxes shall be paramount to every other lien or encumbrance.</p> <p>2. Provisions in a city charter, inconsistent with amendments to the constitution of the state afterwards adopted, are void.</p>

<p>On foreclosure of a mortgage, given to the trustees for the support of public schools of New Jersey, on May 31st, 1875, on lands in the city of Trenton, the answer of the city set up that the assessments for taxes for that year were laid between the first Monday in May and the last Monday in June, 1875 (the period designated by the charter). There being no proof that the assessment was actually made before the mortgage was given,—Held, that such inference could not be drawn from the answer'.</p>

<p>On appeal from Essex orphans court.</p>

<p>1. The evidence of three out of four disinterested, subscribing witnesses to a will (the fourth being dead at the time of the trial), as to the testamentary capacity of a testator ninety-three years old,—Held to outweigh that of ten other witnesses, all of whom were related to the testator, either by blood or affinity; the fact also appearing that the testator’s attending physician, although subpcenaed by the caveators and present at the trial, was not examined.</p> <p>2. An application by a caveator under Hev., Orphans Court, p. 756, \ 19, which provides that the orphans court may, on the application of a caveator or executor, certify the questions raised by any caveat into the circuit court of the county, for trial before a jury, was not made until after all the testamentary witnesses had been examined on the part of the proponents.—Held, that it was too late.</p>

<p>Appeal from the decree of the orphans court of Monmouth county, refusing to admit the will of Hannah Erriekson, deceased, late of that county, to probate.</p>

<p>The time limited by order of the orphans court, within which the creditors of an insolvent estate must present their claims or be barred, cannot, after the expiration - of such time, and after notice has been given pursuant to the direction of the statute, be extended by a sub sequent order.</p>

On bill for the construction of the will of Charles G. Sisson, deceased. On appeal from the decree of the chancellor, reported in Hardenburgh v. Blair, 3 Stew. 42.

<p>On appeal from a decree of the chancellor, founded on the opinion of Barker Gurnmere, esq., a special master, reported in Trustees of Public Schools v. Trenton, 3 Stew. 618.</p>

<p>1. In equity, equitable estates are considered as legal estates, and are subject to the same incidents, properties and consequences as, under like circumstances, belong to similar estates at law.</p> <p>2. A husband is entitled to curtesy in the wife’s equitable estate of inheritance, if the requisites of such a title in legal estates existed. Actual possession of the estate, or the receipt of rents, issues and profits by her, or possession by her trustee for her benefit, is considered as such seizin of the equitable estate as is equivalent to legal seizin.</p> <p>3. The husband’s curtesy is one of the legal incidents of the wife’s estate of inheritance, and he will not be excluded from rights in property springing from'the marital relation, except by words that leave no doubt of the intention. The fact that the limitation is to the wife, for her sole and separate use during her life, will not defeat his right as tenant by the curtesy.</p> <p>4. In construing the limitations of trusts, courts of equity adopt the rules of law applicable to legal estates. The rule in Shelley’s .Case is applicable to equitable as well as legal estates.</p> <p>5. In some cases, and for certain purposes, a court of equity, where the trust is what is known as an executory trust, will so deal with it as to give effect to the general intent of the creator of it, without adherence to the strict legal effect of the terms in which it is expressed.</p> <p>6. The distinction between executed' and executory trusts depends upon the manner in which the trust is declared. When the limitations and trusts are fully and perfectly declared, the trust is regarded as an executed trust. It is only where the limitations are imperfectly declared, and the intent of the creator is expressed in general terms, léaving the manner in which his intent is to be carried into effect substantially in the discretion of the trustee, that a court of equity regards the trust as an executory trust, and will direct the trust to be executed upon a construction different from that which the instrument would receive in a court of law.</p> <p>7. A mere direction to the trustee to convey, willconvert a trust into an executory trust. If the trusts are fully and accurately expressed, the rights of the beneficiaries arc not affected by the direction to convey ; the conveyance must conform to their rights as declared, and the equitable estate immediately vests accordingly.</p> <p>8. In one respect there is a difference between marriage articles and a devise by will. When technical terms are used in an agreement for a settlement, in view of marriage, which, under the artificial rule in Shelley's Case, would create an estate in fee or in tail, the court will infer, from the nature of the agreement, that the parties contemplated provision for the issue of the marriage, which should not be liable to immediate destruction by the act of the parties, and will direct the settlement to bo executed in such a manner as will prevent the destruction of the limitations over to the issue. But this doctrine is applicable only so long as the agreement for a settlement remains a matter of contract. If the parties have themselves completed the settlement by a deed complete in itself, so that it requires only to be obeyed and fulfilled by the trustee according to the provisions of the settlement, the trust will be construed in the same manner as other trusts for the same purposes.</p> <p>9. D., contemplating marriage, purchased and caused to be conveyed to B. certain lands, for the benefit of his intended wife. B. executed a declaration of trust, whereby, after reciting the conveyance to him and the fact that the marriage was about to take place, he acknowledged and declared that he held the premises in trust to and for the sole use and benefit of the intended wife, separate and apart from her intended husband, before and after her intended marriage; and, on the further trust, to convey to such person or persons as she, in her life-time, by writing, or by her last will or writing in the nature thereof, should appoint, and, on failure of such appointment, to her heirs at law, to hold to them, their heirs and assigns forever. The marriage took place, and the wife died, leaving issue of the marriage.—Held, that the husband was entitled to curtesy in the premises so conveyed in trust.</p>

<p>1. A director of a corporation cannot make with himself, or for his own benefit, a contract which will bind the company. The contract may be repudiated by the company, at the instance of a stockholder.</p> <p>2. If directors are employed in the business of the’ company, and agree to pay themselves a stipulated sum, the agreement is void, and no recovery can be based upon such contract, but for such services as ■they render they can recover upon the quantum, meruit.</p>

<p>On appeal from a decree of the vice-chancellor, reported' in Easton v. New York & L. B. R. R. Co., 3 Stew. 236.</p>