Volume 31 — New Jersey Equity Reports

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

Bill for account, &c. On petition of James J. Gerber, assignee in bankruptcy of the defendant, to be admitted as a defendant, and that the cause maybe reheard; and 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 petitioner, on account of a judgment recovered by them against the defendant, Simeon J. Ahern, in the state of New York, in…

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

On petition in the nature of an information under the forty-eighth section of the act “for the regulation and incorporation of insurance companies.” Application for distribution or disposition of assets, on the following petitions : Mrs. Josephine Walworth’s, for payment of a policy for $12,000, issued by the defendants on the life of her late husband, Nathan Walworth, who died January 10th, 1877.

<p>A bill for an account and payment of the proceeds of five bonds and mortgages, alleged to have been assigned to the defendant through his importunity and fraud, for sale on commission, the proceeds of which the defendant, after sale, appropriated to his own use, dismissed on account of gross discrepancies between the allegations and proofs in this suit, and also in complainant’s sworn answer in a suit in another state, touching the same matters; the assignments appearing on their face to have been made bona Jide and for value.</p>

<p>1. The power of eminent domain confers the right to take prop erty on making just compensation, and that compensation in such case is, so far as the value of the land is concerned, to be estimated as of the time when possession was taken, and therefore cannot include the value of improvements subsequently put upon the property by the party entering under the right. But where, as in this case, the entry was not under that right, the right to take the property on compensation does not exist, and the party entering and improving does both, subject to the right of the mortgagee whose mortgage was on the property, to sell, for the payment of his debt, the land and the permanent improvements incorporated with it; In the one case the maxim “ Qv.icquid plaoiatur solo, solo cedil ” is not applicable; in the other it is.</p> <p>2. The Erie Railway Company constructed a track over a part of certain premises which were covered by a prior mortgage duly recorded. The track was built, not under ordinary condemnation proceedings in eminent domain (on the contrary there was an express inhibition in their charter against occupying those lands), but under a grant of right of way from the mortgagors.—Held, that the company had no right to have the track &c., put on the premises by them, reserved from a sale under foreclosure of the mortgage.</p>

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

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

<p>Bill for an account. On final hearing on bill, answer and replication.</p>

<p>An attorney, with the consent and instructions of a mortgagor, deducted money from the amount of the mortgage, as compensation for examining the title, drawing the papers and obtaining the loan, no-part thereof being received by the mortgagee.—Held, not to constitute usury.</p>

<p>1. In a suit by an assignee to foreclose a mortgage held by him as collateral security for non-payment of interest on the bonds, the mortgagee or his assignee cannot set up that the mortgage does not provide that the principal shall become due on the non-payment of the interest, the mortgagor, who was a party, not having interposed such defence.</p> <p>2. By an agreement, a judgment creditor was to accept $30,000, in installments, in payment of his judgment of $60,000, the debtor to withdraw a pending appeal on such judgment, and to pay the installments promptly, or, in default thereof, the judgment creditor might collect the full amount of the judgment ($60,000) remaining unpaid.— Held, that failure to pay according to the agreement could not be regarded as a forfeiture or penalty which it was inequitable for this court to enforce.</p> <p>3. Where a mortgagee in possession assigns the mortgage, the mortgagor, who has no actual notice of the assignment, is entitled, as against the assignee, to an account of the rents and profits up to the time of recording the assignment (but not afterwards), and to have them applied on the mortgage debt.</p> <p>4. A party defendant in a foreclosure suit cannot be held liable for a deficiency prayed against him in the bill, unless a ticket or notice to .that effect be served on him with the subpoena to answer, in compliance with Bule 53.</p>

<p>On a bill for specific performance of an agreement to convey, for a specified price, an interest in a land association, including the one-half of a certain lot,—Held, that the vendee could not be required to pay assessments previously made on such interest; but the cost of subsequent improvements made on the lot, with the vendee’s consent, were allowed.</p>

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

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

<p>To secure an existing indebtedness, a deed (in fact a mortgage) was given by D. to J. By an error in the description, it covered only eleven feet of the frontage of one of the lots. Other creditors after-wards recovered judgments against L>., and levied on the lot as described in J.’s deed. Then J. recovered a judgment against L>., for the same debt, and levied on the whole lot, the mistake having been, meanwhile, discovered and rectified by another deed from D. to J.— Held, that J.’s lien on the eleven feet was prior to that of the other judgment creditors, by virtue of his mortgage; and on the remainder of the lot, hy virtue of the levy under his judgment.</p>

<p>Bill for specific performance of agreement for sale of lands, and bill, in the nature of a cross-bill, to set aside the agreement. On final hearing on pleading and proofs.</p>

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

<p>Bill to set aside a cancellation of, and to foreclose a mortgage.</p>

<p>Where mortgaged p'-emises are converted into money by virtue of condemnation proceedings, the rights of the mortgagee remain unaltered and he is entitled to the money as an equivalent for the land. And, where the full value of the land taken has been awarded and paid into this court, equity will protect the condemner against the lien of an encumbrancer who has not been made a party to the proceedings in condemnation. The power to extend such protection does not depend on the act of 1877 “ respecting the awards of commissioners in cases of lands and real estate taken or condemned by law, and appeals therefrom,” but is inherent in this court.</p> <p>Note.— Although the title of lands is not necessarily involved in condemning them [State v. Hudson Tunnel Co., 9 Vr. 17; Selma R. R. v. Camp, 45 Ga. 180 ; Peoria &c. R. R. v. Bryant, 57 Ill. 473; Peoria &c. R. R. v. Laurie, 63 Ill. 264; St. Louis R. R. v. Teters, 68 Ill. 144; Directors v. R. R. Co., 7 W. S S. 236), yet the assessments, whether for damages or benefits, must be made to the actual owner [Rosa v. Mo. &c. R. R., 18 Kan. 124; Northern R. R. v. Gould. 21 Cal. 254; Rooney v. Sac. R. R., 6 Cal. 638; Lull v. Curry, 10 Mich. 397; Webster v. Southeastern R. R., 1 Sim. (N. S.) 272; Hagar v. Brainard, 44 Vt. 294); and where the entire ownership or title is not vested in one person, the interest of each must be ascertained and compensated.</p> <p>As to the proper method of determining this as between</p> <p>I. A mortgagor and mortgagee—see, in addition to the chancellor’s citations in his opinion (Merritt v. Northern. R. R. Co., 12 Barb. 605; Sherwood v. New York, 11 Abb. Pr. 347; Gimbel v. Stolte, 59 Ind. 446; Wilson v. European &c. R. R., 67 Me. 358; Norwich v. Hubbard, 22 Conn. 587; Aspinwall v. Chicago &c. R. R. Co., 41 Wis. 474; Parker's Case. 36 N. H. 84; Central Park Case, 16 Abb. Pr. 56; Ala. & Fla. R. R. v. Kenney, 39 Ala. 307; Pile v. Pile, L. R. (3 Ch. Div.) 36; Martin v. London R. R., L. R. (1 Eq.) 145; Whitney v. New Haven (Conn.), 7 Reporter 41; Mills on Em. Dom. & 74).</p> <p>II. A tenant for life and remainderman (Folley v. Passaic, 11 C. E. Gr. 216; Passmore v. Phila. &c. R. R., 9 Phila. 579 ; Chicago R. R. v. Smith. 78 Ill. 96; Railroad Co. v. Bentley (Pa.), 7 Reporter 246; Mills on Em. Dom. § 73).</p> <p>III. Tenants in common or joint owners (State v. Fischer, 2 Dutch. 129; Grand Rapids R. R. v. Alley, 34 Mich, 16 ; Southern Pac. R. R. v. Wilson, 49 Cal. 396 ; Reed v. Hanover R. R., 103 Mass. 303; Draper v. Williams, 2 Mich. 536; Chicago R. R. v. Hurst, 30 Iowa 73; Romig v. Lafayette; 33 Ind. 80; Rex v. Trustees, 5 Ad. & El. 563; Mills on Em. Dom. § 78).</p> <p>IV. Tenants for years and reversioners (Colclough v. Nashville R. R., 2 Head 171; Davidson v. Boston R. R., 3 Cush. 91; Lister v. Lobley, 6 Nev. & Man. 340; Ex parte Winder, L. R. (6 Ch. Div. ) 696; Ex parte Edwards, L. R. (12 Eq.) 889; Deere v. Guest, 1 Myl. & Cr. 516; Mills on Em, Dom. & 68).</p> <p>V. Husband and wife (Covert v. Hulick, 4 Vr. 307; Sharplees v. West Chester, 1 Grant 257; Ross v. North Providence, 10 R. I. 461; Pickert v. Ridgefield Park R. R., 10 C. E. Gr. 316; Ball v. Balfe, 41 Ind. 221; New Orleans v. Wire, 20 La. Ann. 500; Wilkin v. St. Paul R. R., 22 Minn. 177; Mills on Em. Dom. & 71).</p> <p>VI. A tenant at will and a subsequent purchaser of the reversion (Carnochan v. Norwich R. R., 26 Beav. 169).</p> <p>VII. Executors and devisees or heirs (Combs v. Blauvelt, 4 Vr. 36; Todemier v. Aspinwall, 45 Ill. 401; Martin v. Cullen, 3 Stew 427, note; Buckner v. Savannah R. R., 7 Rich. (N. S.) 325; Central R. R. v. Merkel, 32 Tex. 723; Mills on Em. Dom. § 67).</p> <p>VIII. Vendors and vendees (Davis v. East Tenn. R. R., 1 Sneed 94; Com. v. Shepard, 3 Pa. 509; Stewart v. Raymond, 7 Sm. & Marsh. 568; Mims v. Macon R. R., 3 Kelly 333; Curran v. Shattuck, 24 Cal. 427; Cornwell v. Springfield &c. R R., 81 Ill. 232; Lewis v. Wilmington R. R., 11 Rich. 91; Rand v. Townshend, 26 Vt. 670; Des Moines v. Cassaday, 21 Iowa 571; Dreake v. Beasley, 26 Ohio St 315; Meginnis v. Nunamaker, 64 Pa. St. 374; Elizabethtown R. R. v. Helm, 8 Bush 681; Mills on Em. Dom. § 66).</p> <p>IX. The owner of an easement and that of the fee (Hough v. Doylestown, 4 Brews. 333 ; Barclay R. R. v. Ingham, 36 Pa. St. 194; Galena R. R. v. Haslam, 78 Ill. 494; Thicknesse v. Lancaster Co., 4 M. & W. 471; Rhines v. Clark, 51 Pa. St. 96).</p> <p>X. The owner of mines and that of the surface (People v. Eldredge, 3 Hun 541; Evans v. Haefner, 29 Mo. 141; West Covington v. Freking, 8 Bush 121).</p> <p>XI. A party with a doubtful or contingent title (Cator v. Croydon Co., 4 Y. & C. 405).</p> <p>XII. Legatees whose legacies are charged on the lands taken and the devisee (Reese v. Addams, 16 Serg. & R. 40).</p> <p>XIII. Judgment creditors with liens thereon (Watson v. N. Y. Central R. R., 47 N. Y. 157; Chicago R. R. v. Chamberlain, 84 Ill. 333; Gimbel v. Solte, 59 Ind. 446).</p> <p>No agreement or combination of the owners of different interests in lands condemned, can increase or affect the value of their aggregate interests. Burt v. Merchants Ins. Co., 115 Mass. 1.—Rep.</p>

<p>Bill to foreclose. Petition of the receiver (in insolvency) of the complainants for an injunction to restrain the defendants (the quarry company) from removing or disposing of stone quarried on the mortgaged premises by them since the decree was made and execution issued in the cause. On motion to dissolve the injunction on petition and affidavit annexed, and affidavits on dhe behalf of the quarry company.</p>

<p>Question of rate of interest</p>

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

On petition of the wife of the lunatic for an order directing his guardian to pay to her the money necessary to redeem certain personal property which she claims as hers, being silver-plate and personal ornaments, pawned by him in Paris, and still remaining in pledge there

<p>The holder of a second mortgage, payable in three installments, filed his bill to foreclose for the payment of the second installment- and interest thereon and costs. The first installment had been satisfied by means of a collateral mortgage. The third installment was not •due. The bill alleged that the property was indivisible, and decree was taken for the sale of the whole, to pay the amount of the second installment and interest and costs, as prayed by the bill. A subsequent mortgagee (the third) purchased the decree and took an assignment thereof. The property was not sold under the execution. The third installment becoming due and being unpaid, the complainant filed his bill for foreclosure and sale of the whole premises, to pay it.— Held, that the court would direct a sale of the property under the ■former decree, and apply the surplus, as far as necessary, to the payment of the third installment. The property was to be sold subject to the first mortgage, which was not foreclosed.</p>

<p>1. A foreclosure suit is not a proper proceeding in which to litigate the rights of a party claiming title to the mortgaged premises in hostility to the mortgagor. Therefore, where defendants, who were permitted to intervene in a foreclosure suit upon a mortgage made by a railroad company formed by the amalgamation or consolidation, pursuant to legislative authority, of certain existing railroad companies, sought to question and litigate the validity of the consolidation,— Held, that that defence would not be entertained.</p> <p>2. The supplement (approved February 28th, 1849) to the act concerning corporations (Nix. Dig. 169, Bev. p. 186), which provides that all companies incorporated under the laws of this state, whose charters do not designate their places of meeting, shall hold their business meetings, the meetings of their directors, &c., in this state, by its terms does not apply to companies whose charters are not subject, by the terms thereof, to alteration, modification or repeal.</p> <p>3. A provision in a corporation mortgage that the principal shall become due in case default be made in the payment of interest, is not in contrariety to a resolution authorizing the giving of the mortgage, which merely provides that the mortgage shall be given to secure the payment of the principal at a certain time, with interest payable semiannually.</p> <p>4. With a view to recording, .a corporation mortgage may be proved by the president or secretary, if signed by them, though they signed it by order of the board of directors. They may be regarded as subscribing witnesses within the meaning of the act respecting conveyances (Bev.p. 152 | 4-). But it cannot be proved by one who did not sign the mortgage. It is not requisite to a compliance with the statute in regard to proof of such instruments, that it should appear that the contents of the instrument were made known to the mortgagor. A record of a mortgage made by transcription from a copy of the mortgage examined by the clerk on production to him of the original, is in conformity with the requirements of the statute.</p> <p>5. A railroad mortgage made to trustees without words of inheritance, but empowering the trustees, on default, to sell the mortgaged premises and to convey to the purchaser “ all the estate, right, property and interest, and to the same extent as the railroad company had therein at the date of the mortgage, &c.” will be rectified so as to convey a fee. The court may direct the trustees to convey all their title to the purchaser at the foreclosure sale in aid of the execution.</p> <p>6. Where an act of the legislature authorizing a railroad corporation to give a mortgage, evidently contemplates a mortgage of all the estate of the company, it will be held, unless the contrary appear, that the mortgage given under the authority was intended to and did convey the estate to the full extent contemplated or authorized by the act.</p> <p>7. Under a prayer for other or further relief in a bill for foreclosure, the mortgage may be reformed.</p> <p>8. A chattel mortgage on the equipment of a railroad, made by authority of the board of directors of an insolvent corporation, for securing the claims of directors against the corporation,—Held, to be invalid as against prior mortgagees of the franchises and equipment, whose mortgages were not filed (the transaction was prior to the act of 1876, 1lev. p. 924 § 56), because the directors (they were also stockholders) had notice of the prior mortgages. Such prior mortgages, however,—Held, not to be valid against judgment creditors who, but for the receivership obtained in a suit to foreclose one of the mortgages, might have made a lawful, valid levy on the equipment.</p> <p>9. The recovery of a judgment against a railroad company for the value of land and damages taken by condemnation, is no bar to the enforcement of a vendor’s lien for the money.</p> <p>10. A depot building,—Held, as against a mechanics lien, to be property connected with the line of the railroad, and regarded as part of the mortgaged premises which were described by a general description covering the railroad and land, ground, depots, station-houses &c., acquired and to be acquired.</p> <p>11. The lien given to laborers by the act concerning corporations (Rev. p. 188 l 63), cannot be extended so as to impair the obligation of contracts or lien of duly recorded encumbrances antecedent to the act.</p> <p>12. That the trustees under a railroad mortgage which gave them the right to take possession of the mortgaged premises in case of default of payment of interest, did not see fit to take possession after default, but permitted the mortgagors to continue in possession and operate the road, and the fact that the employes of the mortgagor were not aware, when they rendered the service, that default had taken place, gives to the latter no claim against the mortgagees for their wages.</p> <p>13. The case of Fosdie v. Scholl, U. S. Sup. Ct., 8 Cent. L. J. 298, considered.</p> <p>14. A railroad company held its rolling stock under an agreement to pay for it in installments, the title not to pass to the company until the whole sum agreed to be paid for it should be paid, and, in case of default, all previous payments to be forfeited. It became insolvent and had no money to pay an installment which became due. Directors of the company, in order to save the rolling stock, advanced the money out of their private funds, on the strength of an agreement made by the other members of the board with them that they should be subrogated to the rights of the vendors for their repayment, but no resolution to that effect was in fact passed by the board.—Held, that they were entitled to subrogation, subject to the superior right of the vendors as to the unpaid balance of the price.</p> <p>15. A railroad company permitted its charter to be used for purposes of condemnation of lands for another company’s road, and on the location of the latter, which paid and took title in its own name for the land, and built the road.—Held, that the road was the property of the latter company. If, in such case, any of the land condemned was paid for by the former, company with its own funds, which have not been repaid to it, the latter company is bound to refund the amount.</p> <p>16. A railroad company having located its road, permitted another company to locate its road on the same location and to build its road upon it,—Held, that the former thereby relinquished its right to the location.</p> <p>17. The case of Randolph v. Hew Jersey West Line R. R., 1 Stew. Jfi, distinguished.</p> <p>18. By an agreement between two railroad companies, one, in consideration of a right to cross its road, gave the other a right to cross in future.—Held, that specific performance of the agreement would not be decreed where the crossing was to be at a place not contemplated by the parties, and where it would do very great damage to the former company—it would cross a drill and freight-yard.</p> <p>19. That the mortgagees of the premises which it is proposed to cross, might have known of the intention to cross, from the fact of the building of a tunnel, to enter which the crossing was necessary, will not bind them to the consequences of acquiescence. In estimating damages, the value of the crossing, which was the consideration of the agreement, will be allowed.</p>

Bill for relief. On motion for injunction on bill and affidavits and depositions taken in another cause in this court, read by consent.

<p>To establish a trust resulting from the payment of purchase-money, the proof miist, where the trust and the grounds of it are denied, be clear, and the case made by the proof must be substantially the game as that made by the bill.</p>

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

<p>Motion on petition to set aside sheriff’s sale of mortgaged premises under fieri facias issued out of this court.</p>

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

<p>Bill for.decree annulling marriage. On final hearing on pleadings and proofs.</p>

<p>On petition for divorce.</p>

<p>The charter of the city of Elizabeth of 1863, § 73, provides that any taxes thereafter assessed on lands shall be a lien for two years, paramount to any encumbrance thereon; and, by § 83, such lands may be ■sold for the lowest term of years (but in no case exceeding fifty years) for which any person will take the same and pay the amount of the taxes and charges ; and, by another clause of $ 83, such .lands, if not bid for when offered at public sale, shall be struck, off to the city for the term of fifty years. By a supplement of 1873, the limitation as to time contained in the first clause of l 83, is repealed. For non-payment of taxes for 1872, 1873 and 1874, on certain lands, they were struck off to the city in each year for a term of nine hundred years. The complainant’s mortgage on the premises was given in January, 1872, and a second mortgage thereon in June, 1872. The second mortgagee redeemed the lands, in July, 1875, by paying the taxes and charges and interest up to that time, took possession, and afterwards paid the taxes for 1875, 1876 and 1877, and collected the rents.—Held,</p> <p>(1) That the sale to the city, because it was for a term (nine hundred years) unauthorized by law, was void, and that the second mortgagee could derive no title therefrom.</p> <p>(2) That the second mortgagee must account for the rents and profits, to the end that it may appear whether anything is due to it for taxes paid. In the account, it will have credit for necessary repairs, and for any balance in its favor it will he entitled to a lien paramount to the complainant’s mortgages. If there shall appear to be a balance in its favor, after charging it with all taxes assessed, though not paid, the balance will be credited on its mortgage. In the account, as between it and the complainant, it will not be allowed for insurance premiums paid by it for its own security merely. Interest on taxes-paid by it when it went into possession, and subsequently thereto, will be allowed at the lawful rate, i. a. at seven per cent, per annum up to July 4th, 1878, and six per cent, afterwards; and allowance will be made for interest paid by it on taxes which were a lien when it went into possession, but not at a rate exceeding that fixed by the charter on taxes paid before sale.</p>

<p>In a, return to a writ de lunático inquirendo, that the alleged lunatic “ is a lunatic and of unsound mind, and does enjoy lucid intervals, so that he is not capable of the government of himself, his lands, tenements, goods and- chattels,” the phrase italicized, whether read parenthetically or not, is not objectionable either in form or fact.</p>

<p>On exceptions to master’s report, filed by Leab Snyder, one of the defendants.</p>

<p>Where the interest of a fund is directed to be paid to one person for life, and the principal fund to another on the death of the first, commissions for collecting and paying the interest must be paid out of the income, and are not chargeable against the principal.</p>

John S. Allen was arrested, by virtue of a ca. sa. issued out of the Essex circuit court, while in attendance before the vice-chancellor as a witness in the above cause. He resides in Connecticut, and had come here, voluntarily, to give evidence. His visit had no other object. He was not served with subpcena in Connecticut or here. His examination had been concluded, the evidence on both sides closed, and the argument commenced, prior to his arrest.

<p>On application for an injunction, heard on bill and answer.</p>

<p>1. To enable a defendant to avail himself of condonation as a defence to a suit for divorce, he must set it up either by plea or answer.</p> <p>2. In case it has been omitted through mistake or unskillfulness in pleading, the court may, to prevent grave wrong, permit it to be interposed by supplemental answer, upon such terms as will afford the complainant an opportunity to disprove it.</p> <p>3. Condonation is always conditional, the condition being that the pardoned party shall in the future treat the other with conjugal kindness.</p> <p>4. The commission, subsequently, of any offence which falls within the cognizance of a matrimonial court, is a violation of the condition, and vitiates the pardon.</p> <p>5. Evidence taken on a preliminary matter, especially before issue joined, cannot be read on final hearing, except under an order of the court.</p>

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

<p>1. Under a bequest “to A. and his heirs,” A. usually takes the whole, absolutely; but if it be “ to A. and his children,” the children take with their parent.</p> <p>2. Under a bequest to two or more persons, by name or as a class, without more, they take aq joint tenants; but slight evidence of an intention on the part of the testator to confer distinct interests, will make them tenants in common.</p> <p>3. Testator gave his daughter E. one-twelfth of his estate, directing that it should not be subject to the control of her husband, but should be hers and her child’s or children’s.—Held, that; the daughter took a life estate, with remainder to her children.</p> <p>4. When a suit is necessary in the proper administration of a fund given by will, its costs and a reasonable counsel fee may be allowed, out of the fund, to a suitor who makes an unsuccessful claim to the fund.</p>

<p>1. Creditors, although they had obtained judgment against administrators, were not, previous to the adoption of Mule 11 of the orphans court, entitled to notice of an application by such administrators to be discharged from their trust, on account of the insolvency of themselves and their sureties.</p> <p>2. A discharge for such cause is not invalid because granted before an account rendered, since such discharge does not relieve from that duty.</p>

<p>On appeal from decree of Morris orphans court refusing probate of a paper writing purporting to be the last will and testament of Jacob Gh Mandeville, deceased, late of that county.</p> <p> </p>

Jersey City, 3 Stew. 554. The ease- made in the bill and answer was this: Certain assessments had been made for municipal improvements in Jersey City, which, it was alleged, were an apparent lien on the property of the respondent.

<p>A person being the equitable owner and in the occupation of land, the record title being in a third party, must refrain from all acts calculated to produce a false impression as to the state of the title, in order to hold a person dealing with such ostensible owner, to the duty of inquiring with respect to the interest of such occupier.</p>

<p>Where an answer explicitly and fully denies the grounds on which •an injunction has been granted, it must be dissolved, although exceptions to other parts of the answer have been filed.</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in Trustees for the Support of Public Schools v. Anderson, 3 Stew. 366.</p>

<p>It is discretionary in a court of equity, if the application for rehearing is promptly made, to open a final decree, where there is a meritorious defence, and the defendant (a married woman) has been deprived of such defence by the negligence of her solicitor in obtaining proofs and presenting them to the court.</p>

Hannon, 2 Stew. 525. This is an appeal from a decree overruling a demurrer to a bill filed to restrain an action at law, and for general relief. The bill substantially discloses the following case: Cornelius Hannon, the defendant in the suit, was, with his son, Cornelius Hannon, Jr., engaged in buying and selling stone.

, a special master : The Master. This cause coming on to be heard before Barker'Gum-mere, esquire one of the masters of this court (to whom said cause was referred by the chancellor, to hear the same for the chancellor, and report thereon, and advise what order or decree should be made thereon), at the state house, in Trenton, on the 29th day of June, 1878; and the pleadings and proofs in the cause having been read, and the argument of counsel heard thereon, and the said…

Amzi Dodd, a special master, whose opinion follows: The Master: The decree in this case having been advised by me, and an appeal taken therefrom, I have been called on for an opinion. The case involves many details which do not seem to me at all important to be stated. A public school-house was contracted to be built for the complainants, by Dittmar, in Jersey City.

<p>Nora.—In this case, no briefs were furnished to the reporter.—Bep.</p>

<p>A judgment at law was recovered by the complainant against the •defendant and one M., on a joint and several promissory note given by them to complainant, for a partnership debt. At the defendant’s repeated requests, and on his promise to pay one-half of the judgment and costs if he would do so, the complainant obtained from M. payment of one-half and released him from all liability on the judgment. —Held, that the defendant should be enjoined from taking advantage .at law of such release to cancel the judgment, and thereby avoid the payment of his share.</p>

<p>Bill for relief. On general demurrer by all the defendants.</p>

<p>Money paid to a mortgagee’s agent, in pursuance of an agreement between such agent and the mortgagor, as compensation for, and as consideration of, procuring the mortgagee’s forbearance, no part thereof being received by the mortgagee, cannot be deducted on the foreclosure of the mortgage, as usury.</p>

<p>Bill to foreclose, and cross-bill for reformation of release. On final hearing on pleadjngs and proofs.</p>

<p>1. Lands bordering on the ocean by a bluff, were conveyed expressly subject to a covenant that the grantee, his heirs &c., would not at any time thereafter build or suffer to be built, erected or moved, any building or structure on any part of the lot eastward of a designated line, and that they would not suffer to be done any act, matter or thing which might at any time thereafter in anywise obstruct or interfere with the view or prospect from the adjoining hotel of the grantor across that part of the lot, but that the grantee, his heirs or assigns, might, nevertheless, erect any bough-house on the margin of the ocean bank of the lot, or any ba.th-house at the foot of the bank.—Held, that the construction of a pavilion along the entire ocean-front of the lot (even though of no greater height than a bough-house) is a violation of the covenant, both from its extent and its obstruction of the view. The fact that a portion of such pavilion extends below high-water mark, upon lands belonging to the state, is no justification for its erection in violation of the covenant.</p> <p>2. The owner of land the surface water from which usually flows over his neighbor’s lands, has no right to permit it, after being mixed with noxious matter on his land, to flow on the lands of his neighbor.</p>

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

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

<p>1. A bill that seeks to establish the lien of an equitable mortgage on lands, against the mortgagor, his grantee and a mortgagee of the latter with, notice of such equitable lien, is not multifarious.</p> <p>2. The covenant under which the equitable mortgage is claimed, included all of the covenantor’s property, both real and personal, and especially a certain house and lot, describing it .—Held, that it was valid.</p> <p>3. That the orphans court which granted letters testamentary, did not require security from an executrix, because she had remarried, constitutes no objection to her proceeding in this court.</p> <p>4. Although the husband of an executrix is a proper party, his non-joinder cannot be taken advantage of by general demurrer.</p>

<p>1. In order to avoid a will for uncertainty, it must 'be incapable of any clear meaning.</p> <p>2. A wife will be put to her election between a testamenta^ disposition in her favor and her dower, when it clearly appears from the will that the testamentary provision was intended as a substitute for the legal one, and the intention will be implied if the claim of dower would be clearly inconsistent with the will.</p> <p>3. Gifts to “my beloved sons,” naming three persons, are good, although two of them are illegitimate.</p> <p>Note.—An unmarried man may, without violating any rule of law, provide by will for the maintenance of his illegitimate children (Dunlap v. Pobinson, 28 Ala. 100; Harten v. Gibson, 1/ Desauss. 139 ; Dunn v. Winihrop, 1 Johns. Gh. 329; Williams v. MacDougall, 39 Gal. 80); and, if legitimated by statute, a bastard may take under a bequest to “children” (Shelton v. Wright, 25 Ga. 636; McGunnigle v. McKee, 77 Pa. St. 81, but see Thompson v. McDonald, 2 Dev. & Bat. Eq. 1/63), or, one to “nephews” (Brower v. Bowers, 1 Abb. Dec. 211/).</p> <p>In Standen v. Standen, 2 Yes. 589, a devise to C. M. and 0. E., legitimate son .and daughter of 0. S., was held good, although both C. M. and 0. E. were illegitimate.</p> <p>In Divers's Oase, 1 Atlc. 1/10, a testator gave an equal share of his real estate to each of his two sons, J. and C. Both J. and C. were illegitimate.—Held, that they both took.</p> <p>In Wilkinson v. Adam, 1 Yes. & Bea. 1/22, 12 Price 1/70, a residuary devise by a married man who had no legitimate children, “ to the children which I may have by A., and living at my decease,” was held, after their reputation as children of the testator had been shown by evidence, to vest the lands devised in them, as a class. [This case has ■ been questioned. Warner v. Warner, 15 Jur. 11/1.]</p> <p>In Qartwright v. Yawdry, 5 Yes. 530, a trust until testator’s child or children should attain twenty-one or marriage, 'and then to pay such of them as became of age or married one-fourth of the whole income, there being one illegitimate child born before testator’s marriage and three legitimates born afterwards,—Held, not to entitle such natural child to one-fourth.</p> <p>In Bentley v. Blizard, 1¡. Jur, (IV. 8.) 652, M. B. gave the whole of her estate to E. B., then living with her as her husband, for life, and after-wards to be equally divided between the natural children of the said E. B. who might then be living. There were then living with M. B. and E. B. two natural children which she had had by him.—-Held, that, in case they survived E. B., they were entitled.</p> <p>In Connor's Case, 2 Jones & Bat. 1)56, a bequest was made to pay to A. N., during her life or until her marriage, for the support of her children, W. and R., and in case of her death or marriage to apply it to the use of her children. The testator was then cohabiting with A. N. and had had by her two illegitimate children, W. and R., named in his will, and no others. Subsequently he had four others.—Held, that W. and R. took to the exclusion of the others. Also, Medworth v. Pope, 27 Beav. 71.</p> <p>In Mortimer v. West, 3 Russ. 370, a gift to A. and B., who were illegitimate children, and every other child or children of M. D., the mother of A. and B., “ alive at my decease or born within nine months after-wards,” share and share alike,—Held, not to include any born after the date of the will.</p> <p>In Borin v. Borin, B. R. (7 H. of B.) 568, a man who had two illegitimate children by M. G., married her, and, the next day, by will, gave her “liberty to direct the disposal of the property among our children, by will, * * * and, should she make no will, I desire that the property shall be divided * * * equally between my children by her.” He had no children born afterwards, but always treated the two already mentioned as his own children.—Held, that, aside from the widow’s interest, the estate was undisposed of. .</p> <p>In Worts v. Oubbitt, 19 Bern. 421, a natural daughter, who, in a prior part of the will, had been mentioned by her Christian name and so described as one of the daughters, was held to be included in a subsequent general gift ‘‘to all my daughters.” Also, Evans v. Davies, 7 Hare 498; Owen v. Bryant, 2 DeG. M. & G. 697, IS E. L. & E. 217; but see Bagley v. Mollard, 1 Russ. & Myl. 681.</p> <p>In Barnett v. Tugwell, 31 Beav. 232, a residuary gift “ to the children, legitimate or illegitimate, of my brother H. equally,” was held good, and to be divided among three illegitimate and nine legitimate children of H., who survived testator.</p> <p>In Herbert's Trusts, 1 Johns. & H. 121, a bequest was made in favor of the daughters of A., A. having died seven years before the date of the will, leaving no legitimate children, but two reputed daughters, who were known and recognized as such by the testator, and one of whom survived him.—Held, that such survivor was entitled.</p> <p>In Woodhouslee v. Dalrymple, 2 Mer. 419, a gift “ to the children of 0. K., living at my decease,” such children being illegitimate but recognized by 0. K. as his children, and C. K. dead at the time of testator’s death, carried the property to them.</p> <p>In Fraser v. Pigott, 1 You. 354, a bequest was made among testator’s grandchildren, being children of his late sons, W. and J., whether born in wedlock or not. J. left both legitimate and illegitimate children, W. left only illegitimates.—Held, that only the legitimate children of er. could take, to the exclusion of J.’s illegitimates, and that the illegitimates of W. could also take. But see James v. Smith, 14 Sim. 816; Overkill's Trusts, 1 Sm. & Giff. 868.</p> <p>In Meredith v. Farr, 8 T. & C. Ch. 686, there was a bequest of one-half of a sum to the children of A. and the other half to the children of B., the latter being specifically named. Both A. and B. had legitimate and also illegitimate children.—Meld, that only the legitimate children of A. were entitled, but that all the children of B. were entitled because they were named in the will; and a bequest to the children of A., including her daughter E. (who was illegitimate), is good, A. having no legitimate child named E.</p> <p>In Allen v. Webster, 8 Giff. 177, under a designation as “ my grandson,” a legitimate son of testator’s illegitimate son was held entitled.</p> <p>In Gabb v. Prendergast, 1 May & Johns. 489, a settlement was made to all the children, as well those already born as hereafter to be born, of A. and B. his wife. A. and B., at the date of the settlement, had been married five years. They never had any legitimate children, but, before her marriage, B. had several children still living who were reputed to be her children by A.—Meld, that such children were entitled.</p> <p>In Poe v. Beynon, 18 Ad. & Ml. 431, a testator devised to M. B.’s three daughters, M., E. and A. When the will was made, M. B. had three legitimate daughters named M., E. and A., but E. died.in testator’s life-time (the fact of such death being concealed from him), and after-wards M. B. had an illegitimate daughter E.—Meld, that B. was not entitled.</p> <p>In Wells's Estate, L. R. (6 Eq.) 599, a direction to pay certain shares to “all my children living at my decease, except my son T.,” he being illegitimate, and also another child A., was held not to include A. Also, Ayles's Trusts, L. R. (1 Oh. Div.) 282</p> <p>In Holt v. Sindrey, L. R. (7 Eq.) 170, under a trust for testator’s daughter, the wife of J. L., for life, and then unto all and every the child or children of such daughter, begotten or to be begotten. The daughter was never legally married to J. L., but had several children by him, and had no legitimate children.—Held, a sufficient designation to entitle them to take.</p> <p>In Savage v. Robertson, L. R. (7 Eq.) 176, a gift to testator’s unmarried sister, by name, and to her two youngest daughters, entitles them to share with their mother.</p> <p>In Kerr's Trusts, D. R. (4 Oh. Div.) 600, a fund was given upon trust for such of the children of M. as she should appoint. M. appointed to her children E. and C., their executors &c., for their own use and benefit. E. was an illegitimate and 0. a legitimate child.—Held, that the appointment to E. was void.</p> <p>In Depine v. Dean, D. R. (10 Eq.) 160, under a residuary bequest to the children of M., an illegitimate child of the testator and M. may take, he having no other children living, although he had another wife besides M. Also, Dilley v. Matthews, 11 Jur. (N. S.) J$5.</p> <p>In Glifton v. Goodbun, D. R. (6 Eq.) 278, a testatrix, who was never ■married, describing herself as a spinster, bequeathed her property in trust for her children, and, in a codicil, she described them by name.— Held, that all of her illegitimate children living at her death, and including one born after the will was made, were entitled to her property.</p> <p>In Lakes v. Hordern, L. R. (I Gh. Liv.) residuary personal estate bequeathed to “ all and every my daughters, in equal shares, who shall attain the age of twenty-one years, or marry,”—Held, that as testator had no legitimate childron, his three daughters were intended.</p> <p>In Hill v. Orook, L. R. [3 Gh. Liv.) 773, (6 H. of L.) 265, a trust to stand possessed (after the death of M., the wife of J. C., without appointment) for the child or children of M. 0., was held good, although the marriage of J. 0. and M. was not lawful, their children, however, being alive and recognized as such by testator.</p> <p>In Paul v. Children, L. R. (12 Eq.) 16, a trust in favor of testator’s niece C. and her husband, and for her child, if only one, or all her children if more than one. 0. being then fifty years old, and having only one child, born before her marriage, such child was held not entitled. See Overhill’s Trusts, 1 8m. & Q. 362.</p> <p>In Lurrant v. Friend, 11 E. L. & E. 2, A., in 1847, gave to his adopted daughter E. the residue of his estate, “ the interest to be paid to her until her first-born son should attain the age of twenty-one.” E. had an illegitimate son, born in 1844, who was maintained at the expense of testator.—Held, that such son was not entitled. Also, Godfrey v. Lavis, 6 Ves. 1¡3; Ward v. Espy, 6 Humph, flfl; Miles v. Roy den, 3 Pick. 213.</p> <p>In Gill v. Shelley, 2 Russ. & Myl. 336, a share was given to the children of M., deceased. M. left two children, one legitimate the other not. _ Evidence was admitted to prove that the illegitimate had acquired the reputation of being the child of M.; that the testatrix well knew it, and that M. left only those two children.</p> <p>In Leigh v. Byron, 1 8m. & Giff. 1¡86, a gift equally among all the children of L., was held to embrace two illegitimate as well as the one legitimate child of L. Also, Edmunds v. Eessey, 29 Bear. 288; Hartley v. Tribber, 16 Beav. 510; Swaine v. Kennerly, 1 Ves. & Bea. 469 ¡ Hart v. Durand, 8 Ansi. 684-</p> <p>In Ekringhaus v. Cartwright, 8 Ired. 89, a devise “ to my said son T. and my daughter P., who was also born before I married her mother,” was held not to prevent the heirs of P. from proving that P. was legitimate, although T. was not. See Johnson v. Johnson, 1 Desauss. 595; Pearson v. Pearson, 46 Cal. 609; Kenyon v. Ashbridge, 85 Pa. 8t. 157; Viall v. Smith, 6 P. I. 417.</p> <p>In Bayley v. Snelham, 1 Sim. & Stu. 78, J. S., who had married a sister of his deceased wife, and had one son of that marriage, gave the residue of his property to all of his children by his reputed wife.—Held, that the son, being born at the date of the will, was entitled.</p> <p>In Beachcro/t v. Beachcroft, 1 Madd. 284, under a bequest by an unmarried man “ to my children,” parol evidence was admitted to show whom the testator considered as his children, and they were admitted to take as a class, although illegitimate and not named specifically in the will.</p> <p>In Shearman v. Angel, Bail. Eq. 851, a testator devised part of his estate to his “mother,” for life, and, at her death, to her children, and devised another part to his “sister.” The testator and his “sister” were illegitimate children of the “mother,” who, at her death, left legitimate children surviving.—Held, that the latter took the first devise exclusively. ,</p> <p>In Gardner v. Heyer, 2 Paige 11, a testator lived and cohabited with M. S., in his house, and had by her four natural children, a son called John and three daughters who were baptized by his name and educated and acknowledged by him as his children. By his will, he gave to his son John $10,000, and to each of his daughters $3,000.—Held, a sufficient description and designation of them to entitle them to take as legatees.</p> <p>In Williams v. MacDougall, 39 Gal. 80, a testator devised all of his estate to his two legitimate daughters M. and F., subject to the education &c. of A., B. and 0., “my hereinbefore-named minor children.” A., B. and 0. were illegitimate.-—Held, that A., B. and C. were entitled 4o education &c. according to testator’s situation in life.</p> <p>In Jackson v. Hartshorne, 1 Code (N. Y.) Rep. 91, note, a testator, having had several illegitimate children whom he recognized as his own, married their mother, and, she being pregnant, he devised his property to “ the maintenance of my wife and such children that I may have had by her.”—Held, that the children born before the marriage could not take.</p> <p>In Ferguson v. Mason, 2 Sneed 618, a testator bequeathed a slave to his daughter E., for life, with remainder to his granddaughter H. He had an illegitimate granddaughter H., the daughter of E., and also a legitimate one, named H., daughter of his son.—Held, that the latter was entitled to the remainder.</p> <p>In Powers v. McFachron, 7 Rich. {N. S.) 290, a testator desired that all of his estate should be kept together until his youngest living child should attain the age of twenty-one years, and then to be divided ■“among my wife and all my then living children equally.” Testator married S. T., in 1813, and they separated in 1819, having had several children. In 1834, S. T. and her children removed from the state. In 1843 and subsequently, testator had natural children by S. 0., whom he acknowledged as his wife. His wife, S. T., died in 1857, and before ■that time his will was executed.—Held, that S. 0. and her children were entitled.</p> <p>Under a devise to B., for life, with remainder to her issue, an illegitimate daughter of B. cannot take (Doggett v. Moseley, 7 Jones (N. O.) 587; Gibson v. Moulton, 2 Disn. 158); so, under a devise to the lawful issue of •a life tenant (Black v. Cartmell, 10 B. Mon. 188; see Miller's Appeal, 52 Pa. St. 113); so, under a bequest to the next of kin of J. (Standley's Estate, L. 2?. (5 Eq.) 303); so, to two illegitimate children and over if •either die without heirs {Pratt v. Flamer, 5 Han. & Johns. 10).</p> <p>Under a bequest to testator’s widow “ to be at her disposal in anyway she may think best for the benefit of herself and family," a bequest to an illegitimate son of one of testator’s sons is valid. Lambe v. Earnes, .L. P. (6 Ch. App.) 597.</p> <p>The above cases do not touch the question as to the undoubted right of a state to authorize bastards to inherit. (Stevenson v. Sullivant, 5 Wheat. 2Q7 ; Miller v. Williams, 66 III. 91; Alexander v. Alexander, 31 Ahi. 241; Brain v. Violett, 2 Bush 155; Allen v. Ramsey, 1 Mete. (Hy.) 685; Flintham, v. Holder, 1 Dev. Eq. 849; Drake v. Drake, 4 Dev. 110; Wag-goners. Miller, 4 Ired. 480 ; Little v. Lake, 8 Ohio 289 ; Wright v. Lore, 12 Ohio St. 619; McCormick v. Cantrell, 7 Yerg. 615; Swanson v. Swanson. 2 Swan 448; Ash v. Way, 2 Gratt. 203.) But such statutes cannot be retroactive. (Hughes v. Decker, 38 Me. 158; McCool v. Smith, 1 Black459; Edwards v. Gaidding, 38 Miss. 118. See Rice v. Efford, 3 Hen. & Mun. .225, 228, note; Brower v. Bowers, 1 Abb. App. Dec. 214 ) Nor legitimate bastards, so as to render them capable of inheriting lands in another state. (Smith v. Derr, 34 Pa. St. 126; Lingen v. Lingen, 45 Ala. 4IO; Doe v. Vardill, 5 Barn. & Oress. 488.) And are strictly construed. (Pina y. Peck, 31 Cal. 859; Edwards v. Gaulding, 38 Miss. 118; Miller v. Stewart, 8 Gill 129 ; Barwick v. Miller, 4 Desauss. 434• See Bemy v. Municipality, 11 La. Ann. I48.)</p> <p>That representation among collaterals shall extend to the children and grandchildren of brothers and sisters, includes illegitimates. Houston Y. Davidson, 45 Ga. 574-</p> <p>Whether, under the statute of distributions, an illegitimate child may take as a “ brother ” or “ child.” Brown v. Dye, 2 Boot 280; Porter y. Porter, 7 How. {Miss.) 106; Standley's Estate, L. B. {5 Eq.) 808 ; Hughes v. Decker, 38 Me. 153; Barwick Y. Miller, 4 Desauss. 434-</p> <p>And also under the statute of descents. Heath v. White, 5 Conn. 228; Dickinson's Appeal, 42 Conn. 491; White v. Boss, 40 Ga. 889 ; Black-laws Y. Milne, 82 III. 505; Berry v. Owens, 5 Bush 452; Burlington v. Fosby, 6 Vt. 88; Cooley v. Dewey, 4 Pick. 98; Ilaraden v. Larabee, IIS' Mass. 430; Pratt v. Atwood, 108 Mass. 46; Iones v. Burden, 4 Desauss. 489 ; Bogers v. Weller, 5 Biss. 166.</p> <p>An illegitimate child is not entitled to a share of his father’s estate, if omitted from the will. Kent y. Barker, 2 Gray 585. See Beck y. Metz, 25 Mo. 70.</p> <p>A testator cannot appoint a testamentary guardian for his illegitimate son. Sleeman v. Wilson, L. B. {18 Eq.) 86.</p> <p>A penalty for abducting a daughter under sixteen, given to a father, authorizes a recovery by the putative father of a bastard. Bex v. Corn-forth, 2 Sir. 1162.—Rep.</p>

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

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

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

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

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

<p>Where legacies were, by one section of a will, charged on lands, and ■full power is thereby given to the executors to sell testator’s lands in . order to pay debts and legacies,—Held, that such power was not qualified by a power given to the executors, in another section of the will, ■to sell after the death or remarriage of testator’s widow.</p>

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

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

<p>Generally this court will not set aside a verdict on an issue at law, where the judge before whom such issue was .tided certifies that he is satisfied with the verdict, and that it ought to be regarded as conclusive on the questions submitted to the jury.</p>

<p>A way for a road or turnpike reserved in a deed for lands, and laid •down as such on a recorded map of the premises, does not authorize ■ any company to occupy and use it as a turnpike, without making compensation.</p>

<p>Specific performance of a contract for the sale of lands against a defendant in possession of the premises since the time of making the contract, was ordered where the defendant set up outstanding claims of dower by the wives of two former owners, such claims having been extinguished in the one case by a conveyance of such right to the complainant, and in the other by a conveyance directly to the defendant, although one of the deeds was not obtained until after the bill had been filed</p> <p>Note.—In a bill for specific performance a vendor may, after his agreement to sell, complete his title at any time before filing his bill {Cottony. Ward, 8 Mon. 305; Grundy v. Ford, IAtt. Sel. Cas. 129; Viele v. Troy R. R. Co., 20 N. Y. 184) ; or before answer (Beebe v. Dowd, 22 Barb. 255; Brush v. Vredenbwrgh, 1 Fdw. Ch. 21); or before the report {Mortlock v. Butter, 17 Ves. 815; Dutch Church v. Mott, 7 Paige 77; Jenkins v. Hiles, 6 Ves. 6)6; Beverly v. Dawson, 8 Munf. 317)-, or before the hearing (Clanton v. Burgess, 2 Dev. Eq. 13; Ijey v. Huber, 3 Watts 867; Wynn v. Morgan, 7 Ves. 202; Roach v. Rutherford, 4 Desauss. 426, 486)-, or before the decree (Hepburn v. Dunlop, 1 Wheat. 178; Langford v. Pitt, 2 P. Wms. 630; Chite v. Robison, 2 Johns. 595 ; Seymour v. Delaney, 8 Cow. 445; Brown v. Huff, 5 Paige 285; Allerton v. Johnson, 3 Sandf. Ch. 77; Duckett v. Williamson, 37 Mo. 389; Dread v. Jordan, 104 Mass. 407); unless great injury be done thereby to the vendee (Brashier v. Gratz, 6 Wheat. 528; Taylor v. Porter, 1 Dana J$1; Richmond v. Gray, 3 Allen 25; Christian v. Cabell, 22 Graft. 82. See Sharp v. Trimmer, 9 C. E. Gr. J¡22; 2 White & Tudor’s Lead. Cas. * 529.—Rep.</p>

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

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

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

<p>1. A bill alleged that a defendant was concluded by a decree in a former suit, and also insisted on such defendant answering the whole bill, including matters settled by that decree. The answer set up a denial of some of those matters.—Held, that such answer was not therefore impertinent, since it complied with the prayer of the bill.</p> <p>2. Such defendant cannot avoid the effect of a former decree on the ground that he, as complainant therein, omitted certain cestuis que trust as parties in that suit.</p> <p>3. Fraud in the consideration of a prior encumbrance, may be set up by a mortgagee in his answer, without filing a cross-bill; and a general allegation of such fraud is sufficient, where the fraud alleged is that the mortgage was given to defraud creditors, and was without consideration.</p> <p>4. An answer may submit legal propositions arising on facts admitted by the bill or facts which it states.</p>

<p>Suit for foreclosure. Motion to set aside sheriff’s sale under Ji. fa. for sale of mortgaged premises.</p>

<p>Where no special grounds for the interference of equity are shown, parties claiming an exemption from the assessment of a tax by reason •of a special statute, must apply to a court of law for relief. That a great many tax-payers will be affected by such assessment will not, of itself, give equity jurisdiction.</p>

<p>Bill for relief. On motion to dissolve injunction, on bill and answer.</p>

<p>1. Under a sale of lands to pay an assessment for improvements, a purchase thereof by the city is valid, although the power to make such purchase was not conferred until after such assessment had been laid.</p> <p>2. The charter provided that the damages for any improvement “ be fairly and justly assessed' by commissioners.”—Held, that the court would not presume that the amount of damages assessed exceeded the benefits, merely because the commissioners’ report omitted to state that fact.</p>

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

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

<p>1. The fact that the property of an insolvent railroad company is under the charge of this court, does not in anywise secure to the company protection against lawful competition in its business, or secure for its property immunity against liability to lawful condemnation.</p> <p>2. A general law authorizing any number of persons not less than seven to form a corporation to construct a railroad, does not exclude non-residents as corporators.</p> <p>3. That the places from and to which the road is to be constructed must be specified, is sufficiently complied with by designating one terminus as “ at or near Bergen cut.”</p> <p>4. The grant by the legislature of the power to exercise the right of eminent domain for the building of railroads for public use, to any persons who will undertake to construct them, leaving it to such persons to select the routes for themselves, is of itself a determination by the legislature that such roads are necessary or useful for the public.</p> <p>5. It is undoubtedly within the power of the court (and it is its duty), where an abuse of the general railroad law is attempted by the unlawful application of its provisions to a private use, to restrain the unauthorized proceedings.</p> <p>6. A corporation cannot, in its own name, subscribe for stock or be a corporator, under the general railroad law; nor can it do so by a simulated compliance with the provisions of the law through its agents as pretended corporators and subscribers of stock.</p> <p>7. An attempt by a corporation to avail itself unlawfully of the general railroad law to build a railroad, will, on complaint of the party injured, be enjoined as an abuse of the law.</p>

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

<p>Bill to foreclose. On general demurrer by the mayor and aldermen of Jersey City.</p>

<p>Bill to foreclose. On final hearing. Submitted on written statement of counsel in briefs.</p>

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

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

<p>Bill for specific performance. On final hearing on plead-ings and proofs.</p>

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

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

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

<p>On habeas corpus to obtain the custody of tbe two children of the prosecutor and respondent.</p>

<p>1. A defendant who intentionally withholds his defence, and assumes the hazard of escaping a decree on the weakness of the complainant’s case, and fails, should be required to bear the consequences of his folly as the penalty of his laches and rashness.</p> <p>2. In determining whether or not the proofs shall be opened in a case tried before the vice-chancellor, the same rules govern this court that govern the law courts in determining applications for new trials'.</p> <p>3. Error of judgment, or mistake of law by counsel in conducting a cause, is no ground for a new trial. .</p> <p>4. A court of equity will not grant a rehearing because of an error of judgment or mistake of law by counsel as to pertinency or force of certain evidence.</p> <p>5. A litigant who has had a fair trial, with the aid of counsel of his own selection, and a full opportunity to prove his claim or defence, should, as a general rule, be required to accept the result as final, except he can show, in appellate proceedings, that on the case as made, injustice has been done or error committed.</p>

<p>1. The mere non-residence of a plaintiff in a judgment at law, and the consequent inability of the defendant therein to serve process on him in other proceedings at law, is, of itself, no ground for staying the enforcement of such judgment.</p> <p>2. Proceedings on a judgment at law will not he enjoined in equity, in order to give the defendant in such judgment an opportunity to set off or recoup a counter-claim, where such claim is unliquidated, and arose out of an entirely distinct transaction.</p>

<p>1. Where two powers are conferred in the same sentence, and by the same words, and the subject or property on which they are to operate is described by the same words exactly, they must be held to embrace the same subject matter.</p> <p>2. Where a power is expressly given to executors over one portion of the estate, and is not expressly given over another portion, the omission manifests an intention that the power shall not be exercised on that portion of the estate over which it is not expressly given, although, in another portion of the will, general words are used broad enough to justify an implication that the whole estate should be subject to the power.</p> <p>3. There is a marked distinction between the purposes shown by a specific devise of real estate, and a devise by way of residue; the first shows that the testator means the devisee shall have a thing certain ; the other, that the devisee shall have something which is uncertain or unknown, and cannot be described with certainty.</p> <p>4. Generally, when the personal estate has been exhausted, the residuary real estate is bound to contribute first to the payment of debts, and it is not until the residuary real estate has proved insufficient, that the specifically-devised estates become liable.</p>

<p>1. When the creator of a power prescribes the method of its execution, that method must be strictly pursued, so far, at least, as may be necessary to give effect to the creator’s purpose.</p> <p>2. A power to sell lands does not authorize the making of a mortgage.</p> <p>3. Where a testator directs his executors to continue his business, and they incur debts in its prosecution, so much and no more of his assets as he has directed should be embarked in business, will stand charged in equity for the payment of the debts of the business.</p> <p>4. Creditors have a right in the first instance, without first exhausting their remedy against the executors personally, to have recourse to the trade property.</p> <p>5. In determining what part of his estate he intended so to embark, everything should be understood to have been included, which is reasonably and fairly necessary to the full accomplishment of the testator’s scheme.</p> <p>6. A testator, by a direction to continue his business, creates a trust estate which the court will keep separate and apply exclusively to the purposes of the trust.</p> <p>7. If executors, carrying on business pursuant to the direction of the will of their testator, misappropriate the trade assets in the erection of buildings on lands of the testator not embarked in the business, a court of equity may, according to established methods of procedure, compel restitution of such assets, either by directing payment or a sale of the land.</p> <p>Note.—An executor, as such, has no power to mortgage the lands of his testator (Ford v. Bussell, Freem. (Miss.) Ch. 1$); nor an administrator (Green v. Sargeant, 83 Vt. 466); nor a substituted trustee (Tyson v. Latrobe, 48 Md. 386; Belote v. White, 8 Head 703); nor can an executor take lands in payment of debts due to his testator (Allen v. Tie Witt, 3 N. Y. 876; Weir v. Humphries, 4 Ired. Eq. 864; nor convey lands to pay testator’s debts (Bussell v. Bussell, 36 N. Y. 681; see Goode v. Comfort, 39 Mo. 313 ; Close v. Van Husen, 19 Barb. 606); nor is mortgaging the natural way of paying debts (Andrew v. Wrigley, 4 Bro. C. C. 138).</p> <p>In the following cases a power to sell land has been held to include the power to mortgage:</p> <p>Earl of Oxford v. Earl of Albermarle, 16 Jur. 811, on a trust “ to sell and dispose of all and singular, the same hereditaments and premises, either together or in parcels, and either at public auction or by private contract,” and to invest the surplus, after paying encumbrances.</p> <p>Duval's Appeal, 88 Pa. St. 112, a devise of a residue of lands to be sold at public or private sale, the proceeds to be applied to the payment of debts not otherwise provided for, and the surplus to be divided among testator’s children, authorizes a conveyance to the executrix to enable her to mortgage the property conveyed, in order to raise money to pay debts.</p> <p>Britton v. Lewis, 8 Pick. Eq. 271, “ to sell all my visible property in such manner as they (the executors) shall think most advantageous ; out of the proceeds I wish my debts to be paid, and the rest I give to my children.”—Held, to authorize a sale and the taking of a mortgage for the entire purchase-money. Also, Sollee v. Croft, 7 Rich. Eq. 84.</p> <p>Bogert v. Hertill, 4 Hill 432, “ for the more easy and equal division of my estate, I do hereby fully authorize and empower my executors hereinafter named, whenever they shall think it expedient, to sell and dispose of all or any part of my real estate for the most moneys that can be gotten for the same, &c.”—Held, that a sale of part of the lands and taking a bond and mortgage for the purchase-money, was valid, and also one executor’s assignment of the mortgage. See Leggett v. Hunter, 19 N. Y. 445; Mathews v. Dragaud, 3 Lesauss. 25.</p> <p>Campbell v. Low, 9 Barb. 585, a deed of trust gave to the cestui que trust, a married woman, full power of disposition (“to convey and assure”) of the estate, with her husband’s assent.—Held, that a mortgage was a good execution.</p> <p>Wayne v. Myddleton, 2 Qa. 883, a trust deed authorized a married woman, by and with the consent of her trustee, to sell and dispose of the trust estate whenever she deemed proper, and to re-invest the proceeds upon like trusts.—Held, to justify a mortgage to secure part of the purchase-money of lands and slaves bought by her. Peace v. Spierin, 2 Desauss. 460; Short v. Battle, 52 Ala. 456; Sampson v. Williamson, 6 Tex. 102. Contra, Marvin v. Smith, 56 Barb. 600; Head v. Temple, 4 Heisk. 34; Leavitt v. Pell, 25 N. Y. 474 > Hoggatt v. White, 2 Swan 265.</p> <p>Zane v. Kennedy, 78 Pa. St. 182, “ to sell and convey, by all lawful assurances and conveyances, all or such parts of the said hereby-granted estate, as the said M. shall, by writing, under her hand, request, &e.”</p> <p>In the following cases, in addition to those referred to in the opinion, such power has been held not to include the power to mortgage:</p> <p>Page v. Cooper, 16 Bear. 896, “ to sell and dispose ” [of lands] and out of th.e proceeds “ to levy, raise and pay ” two sums, and to invest the residue for two persons for life, with remainder to their children.</p> <p>Wood v. Goodridge, 6 Cush. 117, a power to buy and sell real, and personal property, and to execute and deliver deeds to transfer the same, &c., &c. Also, Morris v. Watson, IS Minn. 212.</p> <p>Albany Fire Ins. Co. v. Bay, 4 W. T. 9, a trust of lands “ to sell and dispose of such parts, in fee-simple or otherwise, as T., by writing, under her hand, should from time to time request or desire.”-</p> <p>Coutant v. Servoss, 8 Barb. 128, a trust of lands “ to grant, bargain, sell and convey those lots, or any part thereof, for such sum or sums, and at such times, as to him should seem proper, and to make and execute all necessary conveyances in the law for the same, for the benefit of said infants.”</p> <p>Tyson v. Latrobe, 1$ Md. 82S, “ to sell and dispose of the trust property and premises aforesaid, and to apply the purchase-money by re-investment in such other property as to her may seem best, &c.”</p> <p>Hubbard v. German Catholic Cong., 84 Iowa SI, a religious society authorized a committee to sell a certain piece of land to pay the debts on another tract.</p> <p>A power of sale gives no right to exchange (Ringgold v. Ringgold, 1 Harr. & Gill 11; King v. Whiton, 15 Wis. 684; Taylor v. Galloway, 1 Hamm. 104; Cleveland v. State Bank, 16 Ohio St. 286; see Wadsworthville School v. McCully, 11 Rich. 4^4> Carrington v. Goddin, 18 Gratt. 587); or to confess judgment (Huntt v. Townshend, 31 Md. 386); or to accept an equitable claim of the grantee in part payment (Waldron v. McComb, 1 Hill (N. F.) Ill); or to make a deed of trust with power in the truees to sell as they deem advisable (Smith v. Morse, 2 Cal. 524); or to convey by attorney (Black v. Erwin, Harp. 411; 2 Wms. on Ears 944); or to make partition (Borel v. Robbins, 80 Cal. 4O8; Perry on Trusts \ 769 ; Woodhull v. Longsireet, 8 Harr. Jfi5, 4^! see ÁlCy-Gen. v. Hamilton, 1 Madd. 122).</p> <p>Under a power of sale, executors may sometimes grant leases (Jervoise v. Clark, 6 Madd. 96; Seymour v. Bull, 8 Bay 388; Hedges v. Biker,.5 Johns. Oh. 168; Prather v. Foote, 1 Bisn. 484; Williams v. Woodward, 2 Wend. 487 ; Burr v. Sim, 1 Whart. 266 ; Blake v. Sanderson, 1 Gray 338 ; see Bonney v. Bidgard, Cox Ch. Gas. 145; Simpson v. Bathurst, L. R. (5 Gh. App.) 198; Mitchells v. Corbett, 84 Bear. 376; Hubbard v. Elmer, 7 Wend. 445) ; and they may sell by executory contract (Bemarest v. Ray, 29 Barb. 668; Shippen 7. Clapp, 29 Pa. St. 265; see Ives v. Bavenport, 3 Hill 373) ; and either at public or private sale (Huger 7. Huger, 9 Rich. Eg. 217; Perry on Trusts | 770; see Jackson v. Williams, 50 Ga. 553); or make a conditional sale (Isaac v. Farnsworth, 3 Head 275); but a mere quit-claim deed is no execution (Towle 7. Ewing, 23 Wis. 836).</p> <p>The court may sometimes authorize a mortgage of lands in order to pay debts or legacies [Selby v. Cooling, 23 Beav. Ifl8 ; Holme v. Williams, 8 Sim. 667; Williamson v. Meld, 2 Sandf. Gh. 633 ; see, however, Brown v. Duzee, Vt. 629; Mileage v. Bryan, J¡,9 Ga. 396; Paiapsco Go. v. Morrison, 2 Woods 396); whether they would authorize a lease (Treat v. Peck, 5 Gonn. 280); but the court will not order a sale where only a power to mortgage is given (Brake v. Whitmwe, 6 BeG. & Sm.. 619).</p> <p>Whether a mortgage exhausts a power of sale (Elliott's Case, 6 Whart. 621¡,; Asay v. Hoover, 6 Pa. St. 21; Piatt v.’ Oliver, 2 McBean 309) ; but executors are estopped by a mortgage (People v. Miner, 37 Barb. 1¡66; Ptyder v. Sisson, 7 JR. I. Slfl; Barker v. McAuley, 1¡, Heisk. 1¡26) ; see, further, 1 Am. Law Beg. 128.—Rep.</p>

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

<p>1. This court cannot entertain a bill of review to revise a decree entered here upon remittitur from the court of errors and appeals, reversing the decree of this court.</p> <p>2. But this court may, upon a sufficient case being made under an original bill, give relief against the judgment of any judicial tribunal.</p> <p>Note.—In Needier v. Kendall, Finch 4.68, on an appeal from a decree in chancery to the house of lords, the appellants petitioned to be allowed to examine witnesses, but the petition and appeal were both dismissed. On a subsequent bill of review in chancery,—Held, that the defendants must answer or demur thereto.</p> <p>In Bleight v. Mcllvoy, 4 Mon. 14%, an order dismissing a hill of review in a lower court, after an affirmance above, was affirmed on the ground that although such bill would lie, yet the complainant had not shown himself aggrieved by its dismissal.-</p> <p>In Singleton v. Singl'eton, 8 B. Mon. 340, a verdict of a jury on an issue out of chancery, as to the validity of a will, affirmed by the court of appeals, was held not to prevent infants, interested in the estate, and not made parties before, from filing a bill of review below, in order to set up new facts. See Brown v. Keyser, 58 Ind. 85; Brewer v. Bowman, 8 J. J. Marsh 894-</p> <p>In Bush v. Madeira, 14 B. Mon. SIS, an order granting a demurrer to a bill of review filed below, after an affirmance of a previous order of the chancellor, such bill of review being applied for on the ground of newly-discovered evidence, was reversed. See Bennett v. Brown, 56 Qa. 216.</p> <p>In some states, it is regulated by statute. Parker's Appeal, 61 Pa. St. If78 ; Longworth v. Sturges, 1^ Ohio St. 690; Enos v. Boardman, 2 Tyler 271.</p> <p>In Lyon v. Merritt, 6 Paige lft8, an order of the court of appeals, affirming one by the chancellor, directing that a note should be can-celled, was held to be conclusive unless leave to apply to the chancellor for a modification had been reserved above. Also, TJtica Ins. Oo. v. Lynch, 2 Barb. Ch. 571; Dodd v. Astor, Id. 395; White v. Atkinson, 2 Call 876 ; Price v. Campbell, 5 Call 115.</p> <p>In Clayton v. Wardell, 2 Brad/. 1, a decree of the surrogate as to the legitimacy of one C. A., was reversed by the court of appeals, and the cause remanded for an accounting &c.—Held, that an application below to furnish additional proofs as to C. A.’s legitimacy must be denied. Also, North Carolina It. R. Co. v. Swepson, 78 N. C. 316.</p> <p>In Campbell v. Price, 3 Munf. 227, a mistake was made in entering a decree of affirmance by the court of appeals, the amount of the decree being thereby stated to be payable in currency when it ought to have been sterling. On subsequent application to the chancellor, he corrected the error; but, on appeal, this order was reversed. The complainant then filed a bill of review before the chancellor, both on the original decree and subsequent order. To this bill the defendant demurred. The bill of review was thereupon dismissed, and this order of dismissal affirmed on appeal. See San Francisco Sav. Soc. v. Thompson, Slf Cal. 76.</p> <p>In Mice v. Carey, Ga. 568, after a decree had, a bill of review thereon was filed, to which defendant put in a demurrer which was overruled, and that order thereupon appealed from. The appeal was dismissed for want of proper parties. The plaintiff then filed another bill of review on the order. To this the defendant filed a plea, that since the making of the order the plaintiff had appealed, and that the dismissal of his appeal was equivalent to an affirmance. Plaintiff’s demurrer to this plea was overruled, an exception taken thereto, and error assigned.—Held, (1) That the former dismissal was tantamount to an affirmance. (2) That a bill of review for error apparent on the face of the decree would not lie in the court below after an affirmance on appeal.</p> <p>In Winston v. Johnson, 2 Munf. 306, a decree on a creditor’s bill was affirmed above, and the cause remitted for an accounting. After the master’s report, a bill of review was filed, because the report was taken ex parte [See Galloway v. Galloway, 2 Baxt. 328], and confirmed at the session following, contrary to the practice of the court, and that the decree ought not to have been against the defendants jointly. An order of the chancellor dismissing such bill, was affirmed. Also, Haskell v. Hanoi, 1 McCord's Ch. 22.</p> <p>In Dennison v. Goehring. 6 Pa. St. p02, an order dismissing a bill of review of a decree affirmed by the supreme court on appeal, such bill setting forth error in law appearing in the body of the decree, was itself affirmed on appeal. Also, Grant v. Dudlow, 8 Ohio St. 1,1$.</p> <p>In Southard v Bussell, 16 How. 5J¡,7, a decree holding a certain transaction to constitute an absolute conveyance of lands, was reversed by the supreme court, which held it to be only a mortgage, and remanded the cause. Thereupon a bill of review was filed in the court below, on the ground of newly-discovered evidence, to impeach the character of witnesses already examined. The court below dismissed the bill, and this decree was affirmed on appeal. Also, United Slates v. Knight, 1 Black 488; Aliens. Barksdale, 1 Head 238; San Francisco Sav. Soc. v. Thompson, 34 Cal. 76.</p> <p>In Stallworth v. Blum, 60 Ala. 46, a decree given against a defendant below, was affirmed on appeal. Thereupon he filed a bill of review before the chancellor who rendered the decree, to set it aside for fraud &e. The chancellor ordered it dismissed, and this order was affirmed, on the ground that no review below lies after an affirmance. Also, Kinsell v. Feldman, 28 Iowa 497; Ryerson v. Eldred, 18 Mich. 490.</p> <p>While an appeal is pending on a decree, the court below cannot grant a bill of review thereon (Willan v. Willan, 16 Ves. 89; Field v. Williamson, 4 Sandf. Ch. 618; see Slason v. Cannon, 19 Vt. 219; Terry v. Commercial Bank, 2 Otto 464) , but the hearing on the appeal may be stayed (Tomlinson v. Tomlinson, 10 Rich. Eq. 800; Longworth v. Sturges, 6 Ohio St. I48); an abandonment of the appeal estops a subsequent application for a bill of review (Bennett v. Bell, 10 Rich. Eq. 1¡B1; Hall v. Wolcott, 10 Mass. 218 ; see Gilchrist v. Buie, 1 Dev. & Bat. Eq. 846, 364; Maghee v. Collins, 27 Ind. S3; Benedict v. Thompson, Walk. Ch. 446 ; Person v. Merrick, 6 Wis. 231; Mitchell v. Berry, 1 Mete. (Ky.) 602) ; the granting of a bill of review below does not prevent an appeal (O’Hara v. McConnell, 3 Otto 160).</p> <p>The court of appeals will not grant a bill of review on one of its own decrees (Bernal v. Donegal, 3 Dow 133, 167; Att’y-Gen. v.Ward, 1 Myl. & Or. 4W; United States v. Knight, 1 Black J¡88; Burn v. Poaug, 8 Desauss. 616; Perkins v. Lang, 1 McCord's Ch. 31, note; Johnson v. Lewis, 1 Rich. Eq. 890; American Bible Society v. Hollister, 1 Jones Eq. 10; McGregor v. Gardner, 16 Iowa 638; Pope v. Pope, 4 Pick. 128; Cox v. Breedlove, 2 Yerg. 499 ; Wilson v. Wilson, 10 Yerg. 200; Beazley v. Mershon, 6 Bush 4%4 i Gos-ten’s Appeal, 18 Pa. St. 292; Lewis v. Morton, 6 Mon. 188; People v. New York, 25 Wend. 252; see, however, Barnum v. McDaniels, 6 Vt. 177; Carr v. Green, Rich. Eq. Cas. 405; Neal v. Robinson, 1 Dick. 15; Wynn v. Wyatt, 11 Leigh 584); but in some states such right is given bv statute (Luckett v. White, 10 Gill & J. Jf80; Pinkney v. Jay, 12 Id. 69; Slason v. Cannon, 19 Vi. 219; Bowditch Ins. Co. v. Winslow, 3 Gray 415; Elliot v. Cochran, 1 Cold. 389 ; Longworth v. Sturges, 4 Ohio St. 690, 6 Id. US').</p> <p>Another hill of review cannot be granted after one allowed or dismissed (Denny v. Filmer, 2 Oh. Cas. 133, 1 Vern. 135; Pitt v. Arglasse, 1 Vern. 44-1; Strader v. Byrd, 7 Ohio 330; Coen v. Funk, 26 Ind. 289; Alexander v. Smith, 4 &m. & Marsh. 258; Bespass v. McClanahan, Hard. (Ky.) 342; see Moss v. Baldock, 1 Phil. 118; Burrell v. Burrell, 10 Mass. 221).</p> <p>The case of Stafford v. Bryan, 2 Paige, 45, which criticises Barbón v. Stearle, 1 Vern. 416, is itself criticised in Longworth v. Sturges, 4 Ohio St. 715.—Kef.</p>

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

<p>1. Parties having no common interest, but asserting several and distinct rights, cannot unite as plaintiffs in the same suit.</p> <p>2. A misjoinder of plaintiffs must be taken advantage of by demurrer ; if the defendant answers, the objection will be considered waived.</p> <p>3. But, even when so waived, if the effect of the misjoinder is such as to embarrass the court, or to prevent it from doing complete justice, the court may, of its own motion, dismiss the complainant.</p> <p>4. The court will usually dismiss, when it appears that the separate interests of the co-plaintiffs are of such a nature that they are likely, in the future progress of the cause, to come into conflict, and thus transform the suit into a contest between the plaintiffs.</p> <p>5. Equity will reform deeds for the correction of mistakes, but, to warrant the exercise of this power, the proof of mistake must b.e clear and satisfactory.</p>

<p>1. A trustee who, intentionally, without mistake or accident, destroys the written evidence of his trust, places himself in a position where the court is bound to make all reasonable presumptions against him.</p> <p>2. All things may be presumed against a wrong-doer.</p> <p>3. If a party to a suit is proved to have destroyed a written instrument, a presumption arises that, if the truth had appeared, it would have shown that the paper contained something prejudicial to his interest, and, in such a case, slight evidence of the contents of the paper will usually be sufficient.</p> <p>4. Evidence of oral admissions and declarations belongs to a class of proofs which should be received with great caution.</p> <p>5. A material and controlling fact which is clearly and fully averred in the bill, and not denied or alluded to in the answer, must be taken as confessed.</p>

<p>1. An assignee under a voluntary assignment made by a debtor for the benefit of his creditors, cannot maintain an action to impeach transfers made by his assignor in fraud of creditors.</p> <p>2. But where the transfer is a fraud upon the assignor, so that he might attack it, his assignee may avoid it.</p>

<p>On bill and proofs taken ex parte.</p>

<p>1. .Under the eighth section of the general telegraph law, the authorities of an incorporated town have a right to designate the street route on which a telegraph line shall pass through the town, but they have no right to refuse to allow the line to pass at all.</p> <p>2. Where the poles of a telegraph line, in an incorporated town, are erected outside of the streets, and on private property, and the wires hung thereon, where they overhang the streets, are placed at an elevation sufficiently high not to impede, obstruct or endanger the full, free and safe use of the streets, the town authorities have no right to destroy them.</p> <p>3. Under the last clause of the eighth section of the general telegraph law, the authorities of an incorporated town are authorized to prescribe regulations fixing the elevation at which telegraph wires shall cross the streets of the town, but until regulations on this subject are</p> <p>Note.—For other instances of overhanging obstructions, see Grove v. Fort Wayne, 1/5 Ind. 1/S9; French v. Brunswick, SI Me. S9 ; Jones v. Boston, 101/ Mass. 75; Day v. Milford, 5 Allen 98; Salisbury v. Herchenroder, 108 Mass. 1/58; Jones v. New Haven, 81/ Conn. 1; Hewison v. New Haven, Id. 186; Norristown v. Moyer, 67 Pa. St. 855; Hume v. New York, 1/6 N. Y. 689 ; Taylor v. Peckham, 8 B. I. 31/9.—Bep. adopted, the authorities are not at liberty to treat such use of the streets, for that purpose, as in ho way impedes or endangers their full, free and safe use, as a nuisance.</p>

<p>Appeal from the decree of the Union orphans court, admitting to probate a paper writing purporting to be the last will and testament of Betsy Marsh, deceased, late of that county.</p>

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

<p>On appeal from decree of Somerset orphans court, admitting to probate a paper purporting to be the will of Ann Rider.</p>

<p>The nineteenth section of the orphans court act (Rev. p. 756), provides that when a caveat shall be filed against the probate of a will, the orphans court may, on the application of the caveators, or the persons named as executors in the will, certify the question involved in the controversy, into the circuit court of the county, for trial before a jury.—Held, that such certifying was merely discretionary with the orphans court, and that the provision of the act was not mandatory.</p> <p>' Note.—In the following cases the word “may” has been held to be mandatory:</p> <p>Rex v. Barlow, Carth. 898, Salk. 609, that church wardens may make a rate. Also, Rex v. Derby, Skin. 870.</p> <p>Blackwell’s Case, 1 Yern. 158, that the chancellor may grant a commission of bankrupt.</p> <p>Rex v. Hastings, 1 Dowl. & R. 11(8, that the mayor * * * might for the future hereafter have and hold * * * a court of record.</p> <p>Ticknow. McClelland, 81( III. 1(71, that a chattel mortgage may be acknowledged before a justice of the peace of the town or district where the mortgagor resides.</p> <p>State v. State Canvassers, 86 Wis. 1(98, that if any election returns shall be found to be so informal or incomplete that the board cannot canvass them, they may dispatch a messenger to the inspectors who made the returns, etc.</p> <p>People v. Brooks, 1 Den. 1(57, that affidavits may be taken before commissioners of deeds. See Caniff v. New York, 1( E. D. Smith 1(80.</p> <p>Adriance v. Supervisors, 18 How. Pr. 881(, that supervisors may correct an erroneous assessment.</p> <p>Randolph Co. v. Rolls, 18 III. 89, that all actions against any county may be prosecuted in the circuit court of that county; also, Schuyler Co. v. Mercer Co., 9 III. SO.</p> <p>Rockwell v. Clark, 44 Conn. 534, that when any married woman shall carry on any business, and any right of action shall accrue to her therefrom, she may sue upon the. same as if she were unmarried. See Rumsey v. Lake, 55 How. Pr. 339 ; Van Cleve v. Rook, 11 Vr. S5. ■</p> <p>Mason v. Fearson, 9 IIow. Sl¡3, a provision that a municipality may sell one lot for the taxes assessed on several, restricts them to selling only one if that will produce the.amount. See Thompson v. Carroll, SS IIow. pSR</p> <p>Walley's Case, 11 Nev. S60, that the court may, of its own motion, or on application, set apart for the use of the family of the deceased, all personal property which is by law exempt from execution ; also, Pallentine’s Case, 45 Cal. 696.</p> <p>Steines v. Franklin Co., 43 Mo. 167, that an act concerning issuing bonds for roads etc., provided that, before any expenditures shall be made, the county courts may, for the purpose of information, submit the amount of the proposed expenditures to the voters of the respective counties.</p> <p>People v. Com’rs, 4 Neb. 150, that county commissioners may let contracts to the lowest responsible bidder.</p> <p>St. Louis R. R. v. Teters, 68 III. 144, that a court may grant a continuance, if the absence of one of the attorneys is occasioned by his being a member of the legislature, and then in attendance on its sessions.</p> <p>Low v. Dunham, 61 Me. 566, that in proceedings to enforce a maritime lien, the court may issue an order to sell the vessel.</p> <p>Supervisors v. United States, 4 Wall. 435, that a board of supervisors may, if deemed advisable, levy a special tax.</p> <p>Galena v. Amy, 5 Wall. 705, that a city council may, if it believe that the public good and the best interests of the city require it, levy a tax to pay its funded debt.</p> <p>Phelps v. Hawley, 3 Lans. 160, 52 N. Y. 23, that if a private bridge be destroyed and not rebuilt by the company within a certain time, it shall thereupon become a public bridge, and may be maintained at the expense of the county. See Newport Bridge Oase, 2 El. & El. 877.</p> <p>Scully v. Aclcmeyer, 2 Cin. 296, that an assessment may be recovered in the name of the city.</p> <p>Barnes v. Thompson, 2 Swan 818, that a mechanics lien may be enforced by attachment.</p> <p>Hines v. Backport, 60 Barb. 878, that a common council may make streets, sidewalks, and repair them; also, New York v. Furze, 8 Hill 612; People v. Brooklyn, 22 Barb. 1/01/.</p> <p>State v. Buckles, 89 Ind. 272, that a state auditor may draw his warrant on the treasurer.</p> <p>Gillinwater v. Mississippi P. P., 18 III. 8, that a certain number of corporators may present a petition to the legislature before they become incorporated. See Minor v. Mechanics Bank, 1 Pet. 61/.</p> <p>Blake v. Portsmouth P. R., 89 N. H. 1/35, that any corporation whose powers expire by limitation, may continue to be a body corporate for three years thereafter, for the purpose of prosecuting and defending suits.</p> <p>Chicago & A. P. P. v. Howard, 88 III. 1/11/, where one section of an act provides that a common informer “ may ” sue for a penalty, another, that the state’s attorney “ may ” sue, the latter has no exclusive right to bring suit.</p> <p>In the following cases the word “ may ” has been held directory:</p> <p>Banks’s Case, 28 Ala. 28, that the trial of any person charged with an indictable offence may be removed to another county, on the application of the defendant, duly supported by affidavit. See Kelly v. State, 52 Ala. 866.</p> <p>Cross v. Pearson, 17 Ind. 612, that in a justice’s court, all matters of defence, except &c., may be given in evidence without plea.</p> <p>Peed v. Bainbridge, 1 South. 357, that an assignee of bonds &e. may maintain an action of debt thereon, in his own name. • See Carhart v. Miller, 2 South. 575.</p> <p>Chetwood v. State Bank, 2 Hal. 82, that a plaintiff may assign as many breaches as he shall see fit. See Shaeffer v. Jack, 11/ Sera. & Pawle 1/29.</p> <p>Central P. R. v. Ingram, 20 Kan. 66, that a demand [of damages for killing stock on a railroad] may be made of any ticket agent or station agent of such railway company.</p> <p>State v. Han. & St. Jos. R. P., 51 Mo. 582, that suit may be commenced by serving the summons on any director &c. of a corporation.</p> <p>Mitchell v. Duncan, 7 Fla. 18, that on a proceeding to set aside a defective execution, and bond and affidavit given, execution may issue against the party making the affidavit and his sureties.</p> <p>State v. Holt Co., 89 Mo. 521, that a court, if satisfied that an applicant is a person of good character, may grant him a tavern license.</p> <p>School District v. Sterricker, 86 III. 595, that the certificate of a school teacher may be in the form following [setting out a form]. See Davidson v. Gill, 1 East 64; Crosby v. School District, 35 Vt. 623; Apyar v. Trustees, 5 Vr. 311.</p> <p>Lewis v. State, 3 Head. 127, that on a jury’s recommending a defendant in a capital case to mercy, the court may commute the punishment from death to imprisonment for life.</p> <p>Com. v. Gable, 7 Sery. & Rawle 4%8, that in indictments for involuntary manslaughter the attorney-general may, by .leave of the court, waive the felony and proceed as for a misdemeanor.</p> <p>Com. v. Haynes, 107 Mass. 194, that penalties for an offence may be recovered before any court of competent jurisdiction, does not exclude an indictment for the same offence in the superior court. See Ilirschfelder v. State, 18 Ala. 112; Barnawell v. Threadgill, 5 Ired. Eq. 86; McKoin v. Cooley, 3 Humph. 559.</p> <p>Sifford v. Beaty, 12 Ohio St. 189, that in an action against a sheriff for the recovery of property taken under execution and replevied by the plaintiff, the court may, upon application of the defendant in execution, permit him to be substituted as defendant.</p> <p>Cooke v. Slate Bank, 50 Barb. 339, that suits against any national bank may be had in any court of the United States held within the district where such bank is established, or in any state court in such district, does not exclude a suit in a state court against such bank located in another state.</p> <p>Lovell v. Wheaton, 11 Minn. 92, that an award may be returned to any term of court held during the time limited by the submission. See, however, as to time in general, Birdsong v. Brooks, 7 Ga. 88; Stevenson v. Lawrence, 11 Am. Law Reg. 409; Free Press Ass’n v. Nichols, 45 Vt. 7; Burlingame v. Burlingame, 18 Wis. 285; Bowman v. Blyth, 7 E. & B. 26,4&.</p> <p>Kane v. Footh, 70 III. 587, that the court may, at the request of either party, require the jury to render a special verdict.</p> <p>Fowler v. Pirkins, 77 III. 271, that appeals in certain cases may be taken to the supreme court, does not repeal a prior statute allowing appeals in such cases to the circuit court. See Hogan v. Devlin, 2 Daly 184-</p> <p>Kelly v. Morse, 3 Neb. 224, that the court may require actual notice to be given to either party, when it appears necessary and proper, before acting on an award of arbitrators. See Cole v. Green, 6 M. é G. 872; Corliss v. Corliss, 8 Vt. 373.</p> <p>Caldwell v. State, 34 Ga. 10, that of two or more defendants jointly indicted for any offence, any one defendant may be tried separately.</p> <p>Bansemer v. Mace, 18 Ind. 27, that public sales of lands may be in parcels, so that the whole amount may be realized. See Cunningham v. Cassidy, 17 N. Y. 276.</p> <p>Allen v. Wells, 22 Ind. 118, that the court, where a cause is transferred to a higher court because the title of land is involved, may tax all costs made in the former court. See MacDougall v. Paterson, 11 C. B. 755 ;■ Jones v. Harrison, 6 Exch. 328 ; Crake v. Powell, 2 El. & El. 210.</p> <p>Darby v. Cond.it, 1 Duer 599, that the court may, in its discretion, require security for costs of an executor.</p> <p>Buffalo Plank Road v. Gom’rs, 10 How. Pr. 237, that every person liable to do highway labor, living or owning property on the line of any plank road, may, by application in writing, be assessed his proportion of the assessment for the labor on such highway.</p> <p>Bell v. Crane, L. R. (8 Q. B.) 481, that every authority having power to impose rates, may exempt a building used as a Sunday or ragged school from any rate.</p> <p>McMaster v. Lomax, 2 Myl, & If. 32, that the court may issue an attachment for contempt, for want of an answer, “if they shall so think fit.”</p> <p>Cutler v. Howard, 9 Wis. 309, that the court may remove an executor for certain specified causes [although one of the causes exists],</p> <p>Kelly v. Milwaukee, 18 Wis. 83, that a common council may pass ordinances for abating nuisances etc., as they shall deem expedient; also, Goodrich v. Chicago, 20 III. 445.</p> <p>Ridley v. Ridley, 24 Miss. 648, that in attachments against non-residents, the court may order notice of the attachment to be published in a newspaper of the state. See Cory v. Lewis, 2 South. 846 .-Slate v. Click, 2 Ala. 26.</p> <p>Have v. Nave, 7 Ind. 122, that in divorce suits, witnesses may be examined orally in open court.</p> <p>State v. Sweetsir, 53 Me. 488, that an indictment may be found and tried in the county where the offender resides, or where he is apprehended.</p> <p>Lean v. White, 5 Iowa, 266, that a corporation having an office in any county, may be sued in that county.</p> <p>Malcolm v. Rogers, 5 Cow. 188, that heirs shall or may recover in one writ or action, as heirs of the deceased person.</p> <p>New York & E. R. R. v. Coburn, 6 How. Pr. 223, that on an appeal from an award of damages for lands condemned by commissioners, the court may direct a new appraisal.</p> <p>Striker v. Kelly, 7 Hill 9, 2 Len. 323, that a resolution may not be passed by a common council without calling the ayes and noes. See McKune v. Weller, 11 Cal. 57; St. Louis v. Foster, 52 Mo. 518.</p> <p>Williams v. People, 24 N. Y. 405, that for certain stealings the offender may be punished as for grand larceny.</p> <p>In the following cases “ shall ” has been construed to be discretionary or directory:</p> <p>Newcastle Co. v. Bell, 8 Black/. 584; Hollands. Osgood, 8 Vt. 276; People v. Holley, 12 Wend. 481; Thompson v. Sergeant, 15 Abb. Pr. 452; Johnson v. Williams, 2 Tenn. 178; Aü'y-Gen. v. Baker, 9 Rich. Eq. 521; York Railway v. Reg., 1 E. & B. 858; Rex v. Leicester, 9 L. & R. 772 ; Reg. v. South Weald, 5 B. & S. 391; Caldow v. Pixell, L. R. (2 C. P. L.) 562; Wheeler v. Chicago, 24 III. 105; Parish v. Elwell, 46 Iowa 162; Stevenson v. Lawrence, 11 Am. Law Reg. 409; City Sewage Co. v. Lavis, 8 Phila. 625; People v. Supervisors, 50 Cal. 561; Rodebaugh v. Sanks, 2 Watts 9 ; Colt v. Eves, 12 Conn. 243; Com. v. Com’rs, 5 Binn. 586; Ludlow v. Ludlow, 1 South. 894; Cason v. Cason, 81 Miss. 578; Justices v. House, 20 Ga. 328; Catterall v. Sweetman, 9 Jur. 951.</p> <p>“ It shall and may be lawful,” is generally mandatory, Gray v. Locke, 8 Atk. 166; Stamper v. Millar, 3 Aik. 211; Simonton’s Case, 9 Port. 890; Tarver v. Com’rs, 17 Ala. 578; Rex v. Eye, 1 Barn. & Cress. 85; Chapman v. Milvain, 5 Exch. 61; Mason v. Fearson, 9 How. 237; Lavison v. Lavison, 2 Harr. 171; but see Verplanck v. Mercantile Ins. Co., 1 Edw. Ch. 84; New-burgh Co.v. Miller, 5 Johns. Ch. 112; Seiple v. Elizabeth, 8 Lutch.407; Rex v. Com’rs, 2 Chit. 251; Bridgman’s Case, 1 Lr. & Sm. 164-</p> <p>Where any proceeding is “ authorized,”. Kellogg v. State Treas. 44 Vt. 856; People v. Supervisors, 11 Abb. Pr. 114, 51 N. Y. 401; Rogers v. Bowen, 42 N. H. 102; Milford v. Orono, 50 Me. 529; Veazie v. China, 50 Me. 518; Com. v. Pittsburgh, 8 Am. Law Reg. 292; Com. v. Johnson, 2 Binn. 275; Gould v. Hayes, 19 Ala. -IfiZ ; Reg. v. Com’rs, 14 Ad. & HI. (H. 8.) 459; State v. Harris, 17 Ohio St. 608; Angle v. Runyon, 9 Vr. 4p8; Harris v. Supervisors, 52 Cal. 554 > and see, further, Potter’s JDwarris on Slat. 222, note 29.—Bep.</p>

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

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

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

Clark, trustee of Emma Cole, against the estate of Jason Cole, her husband, in the hands of John S. Howell., his assignee, under an assignment made under the act “ to secure to creditors an equal and just division of the estates of debtors who convey to assignees for the benefit of creditors.”

Dobbins, 2 Stew. 36 Mrs. E. A. Crane, by lier will, after certain devises and legacies, made the following disposition : “The residue of my estate I give and devise to the North Reformed Church of Newark, in trust that they may use the same to promote the religious interests of the said church and to aid the missionary, educational and benevolent enterprises to which the said church is in the habit of contributing, and I direct my trustee and executors to pass over to the…

Suit in equity by several creditors of Moore Castner, deceased, against Ms sons Michael and Nathan Castner, for the purpose of charging two farms, situate in Hunterdon ■county, which the deceased conveyed to them respectively, with so much of the debts of the complainants as have not been paid by the administrator. It appeared that the estate of Moore Castner was insolvent, and had been settled.

<p>On appeal from a decree of the vice-chancellor, whose opinion may be found in Lehigh Valley R. R. Co. v. McFarlan, 3 Stew. 180.</p>

<p>1. The appropriate relief against successive suits by the same plaintiff for damages arising from an injury which is continuous, is by application for the consolidation of actions, or for a stay of proceedings, and not by bill in chancery, unless the right in controversy has once been determined adversely to the plaintiff.</p> <p>2. A bill of peace, enjoining a litigation at law, is allowable only when the complainant has already satisfactorily established his right at law, or where he claims a general and exclusive right, and the persons who controvert it are so numerous that the endeavor to establish the right by actions at law would lead to vexatious and oppressive litigationj and renders an issue under the direction of the court indispensable to embrace all the parties concerned, and to avoid multiplicity of suits.</p> <p>3. It is not indispensable that the defendants shall have a co-extensive common interest in the right in dispute, or that each shall have acquired his interest in the same manner or at the same time; but there must be a general right in the complainant, in which the defendants have a common interest, which may be established against all who controvert it, by a single issue.</p> <p>4. The rule with regard to multifariousness, whether arising from the misjoinder of causes of action, or of defendants therein, is not an inflexible rule of practice or procedure, but is a rule founded in general convenience, which rests upon a consideration of what will best promote the administration of justice without multiplying unnecessary litigation on the one hand, or drawing suitors into needless and unnecessary expense on the other.</p> <p>5. The Morris canal enters into and crosses the Rockaway river at Lover. The crossing is effected by means of a dam in the river, which holds the water at the place of crossing at a height suitable to carry boats across the river and to supply a head of water in the lower level of the canal. M. is the owner of a rolling-mill situate on the Rock-away river and driven by its waters, which, after passing the waterwheel, are discharged into the river above the canal dam. H. is the owner of a grist-mill, saw-mill and forge situate on the river below the canal dam and driven by the waters of the river. ■ Y. and W. were the lessees of H.’s mills and forge. M. sued the company for injuries arising from back-water upon the wheel of his rolling-mill. H. and his tenants also brought suits to recover damages for diversion of the water from the mills and forge. The company filed a bill of peace, to enjoin the prosecution of said suits, and for the determination of the rights of the parties respectively in one suit, to be prosecuted under the direction of the court of chancery. The charter of the company authorized the appropriation of private property to its use without compensation first made, and gave to individuals who were injured thereby a right of action to recover compensation for their injuries.— Held, that there did not appear to be such a unity, either in the grounds on which the several actions of the defendants rested, or in the defences proposed to be made thereto, as would make a bill of peace, and an issue thereunder, the appropriate method of settling the questions involved.</p>

Pitney, esq., who stated orally the following reasons for the decree: This is a bill filed by Eburn H. Coutant against Eliza Annette Graves, seeking to charge certain lands of the defendant, in the county of Hudson, and also all proceeds of those lands—such of them as have been sold—in the hands of the defendant, for the purpose of paying a judgment recovered by Mr. Coutant, in the supreme court of the state of Hew York, against Rosewell Graves the husband of Eliza Annette…

On May 1st, 1862, George W. Hughes, of Paterson, in the state of Hew Jersey, then temporarily living in Russia, departed this life, and having before his death, and on the 31st day of December, 1858, duly made and executed his last will and testament in due form of law, and published the same in the presence of three subscribing witnesses thereto, as follows: “I, George Washington Hughes, of New Jersey, in the United States of America, now temporarily residing in Russia,…