Volume 32 — New Jersey Equity Reports

<p>1. A party is not entitled to relief in this court, under the act to quiet titles, on the ground of mere irregularity in a municipal assessment for opening a street, adequate relief having been provided at law; nor does equity acquire jurisdiction merely because the lands assessed have been sold under the assessment.</p> <p>2. A charter provision that the cost of any improvement be laid on the lands benefited, “by a just and equitable assessment,” and that any excess be borne by the city at large, is not unconstitutional.</p>

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

<p>A foreclosure bill on a first mortgage prayed a decree for deficiency against the owner of the premises, who had assumed its payment, and,, also, the payment of a second mortgage thereon.—Held, that the holder of the second mortgage, who was a party, could not, by filing a cross-bill against the owner, obtain a decree for deficiency on his own mortgage.</p>

<p>1. A bill filed to obtain a divorce a mensa et thoro, on account of the refusal of the husband to maintain the wife, though it presented no ground of divorce was, nevertheless, sustained, under the statute (Bev. p. 318 § 20), as a bill for support.</p> <p>2. A denial of a marriage de jure, because complainant had another husband living when she married defendant, accompanied with an admission of a marriage de facto, presents a proper case for allowing alimony pendente lite. But such alimony was refused where the defendant swore, and his oath was not overcome, that he left complainant with her consent and at her request, and he otherwise met the allegations of the bill with his answer and affidavits.</p> <p>Note.—Whether a court will grant alimony in a suit for divorce, on the ground that the defendant has a former husband or wife living, seems to be questioned in some cases. The objection is founded on the reason that alimony depends on marriage, and if there never has been a marriage there cannot be alimony. Thus, there can be no original proceeding for alimony after a divorce (Wilde v. Wilde, 86 Iowa 819; Petersine v. Thomas, 88 Ohio St. 696; Bowman v. Worthington, 84 Ark. 638; Gatland v. Gotland, 88 Cal. 866) ; and where a divorce obtained in Kentucky allowed alimony, it was held that the wife could not after-wards go into a court of Indiana for more, although her former husband owned lands there, and her allowance was inadequate (Fishcli v. Fishcli, 1 Black/. 860; 8 Bisk. Mar. & ZHv. § 616); so, where both parties are non-residents (Keerl v. Keerl, 84 Md. 81). See Brinkley v. Brinkley, 60 N. Y. 184; Cte v. Cox, 80 Ohio St. 439.</p> <p>In North Carolina, it seems, it is not necessary to decide, as in England, the question of marriage or no marriage, before passing on the right to alimony pendente lite. Schonwald v. Schonwald, Phil. Eq. 816; and see Little v. Little, 68 N. C. 88.</p> <p>Bishop (Yol. II, l 408 &c.), says its allowance depends upon the fact of marriage being either admitted or proved, although such marriage need not be valid, and cites Bird v. Bird, 1 Lee 809 ; Miles v. Chilton, 1 Bobertson 684; North v. North, 1 Barb. Ch. 84!; although the marriage is alleged to have been brought about by the fraud of the pretended wife, the husband being a lunatic. Portsmouth v. Portsmouth, 8 Addams 68; Contra, Boseberry v. Boseberry, 17 Ga. 139; but see Frith v. Frith, 18 Ga. 878. See, also, Pawdon v. Pawdon, 88 Ala. 665,</p> <p>Where a marriage was denied, but cohabitation admitted, alimony was allowed (Smith v. Smith, 1 Edw. Ch. 866); but not where the cohabitation was also denied (Vreeland v. Vreeland, 8 O. E. Gr. 48); or where the marriage was denied and the cohabitation meretricious (York v. York, 34 Iowa 530 ; Humphreys v. Humphreys, How. Pr. 140; Appleton v. Warner, 51 Barb. 270); or where the marriage was admitted but never consummated, because the wife justly suspected her husband had a former wife .living (Holston v. Holston, 28 Ala. 777).</p> <p>In Bartlett v. Bartlett, Clarke Ch. 460, in a suit by a wife for divorce, on account of the alleged impotence of her husband, alimony was refused [but notice that there was an agreement in this case as to the wife’s father supporting her]; and see Smith v. Morehead, 6 Jones Eq. 360.</p> <p>In Brinkley v. Brinkley, 50 N. Y. I84, where the evidence as to a formal marriage was evenly balanced, but that of a lawful cohabitation preponderated on the wife’s side, she was allowed alimony. Also, Her/orth v. Herforth, 2 Abb. Pr. (N.. S.) 488; Purcell v. Purcell, 4 Hen. & M. 507; Fuller v. Fuller, 17 Cal. 605.</p> <p>In Anonymous, 15 Abb. Pr. [N. S.) 307, a husband obtained a divorce on the ground of a prior marriage, and married again. His former wife then applied to open the decree of divorce on the ground of fraud.—Held, that the second wife was entitled to counsel fees, but not to alimony.</p> <p>In a suit by a husband against his wife, to have their marriage declared void, by reason of her former marriage, on a decision in favor of the wife, the court may award her extra expenses and counsel fees (Griffin v. Griffin, 41 H. Y. I84); and also alimony, where a wife’s petition, because her husband had a former wife living, is established (Vanvalley v. Vanvalley, 19 Ohio St. 588); see Yule v. Yule, Sax. 100.—Rep.</p>

<p>To reform a deed on the ground of mistake, it must be shown conclusively that such mistake was mutual. Where the bill does not allege, nor the accompanying affidavits state, that the mistake was mutual, and the answer denies it, the deed cannot be rectified.</p>

<p>The evidence of a husband in a divorce suit is not competent to prove his wife’s adultery, nor to prove her handwriting on an intercepted letter to her alleged paramour; nor are statements of such paramour, made in defendant’s absence, competent.</p>

<p>1. A-mortgage of lands in New Jersey, drawn in New York, to executors, “ their successors and assigns,” containing the usual clause conveying all the mortgagor’s estate, right, title, interest &c. in the premises, and recorded in full, is notice to a subsequent mortgagee and judgment creditor of the mistake and that such mortgage was intended to convey the fee.</p> <p>2. An answer by a grantee of the mortgagor, that he is now informed and believes it to be true that the mortgagees agreed with the mortgagor, at the time such grantee’s deed was given, to release the premises from the lien of their mortgage, without any proof of such agreement, is not available as a defence to the foreclosure of such mortgage, although no replication having been filed to such answer it must be taken to be true.</p>

<p>A mortgage was given by M. to A. and F., partners, to secure them for goods sold and to be sold by them to M. After a dissolution of the firm, the mortgage was by delivery assigned to F., as part of his share cf the assets, and by an agreement then made between M., A. and F., such mortgage was also to secure F. for any goods thereafter sold to M. M. died, leaving all his property to his wife, who was also made executrix, and proved the will. On foreclosure by F., M.’s wife was made a party defendant as devisee, but not as executrix, and by her answer admitted that the mortgage was given to secure the firm of A. and F., and F. individually, for goods sold; and that after the dissolution of the firm M. dealt with F. on the security of the mortgage, and that there is a large amount due on the mortgage; and there was proof of admissions by M.—Held, that F. could recover on the mortgage the sums due the firm of A. and F., and also his individual claims against M., their amount and also the fact that the mortgage was intended to secure them being proved by M.’s admissions.</p>

<p>Bill to foreclose. Motion on behalf of mortgagor to set aside sheriff’s sale. On petition and affidavits.</p>

<p>Bill for account &c. On final hearing on bill and answer.</p>

<p>A gold-refiner, on being accused, confessed that he had taken gold entrusted to him by his employers to refine. While under arrest at the police-station, he agreed to make restitution by giving a mortgage on his lands for the amount which he admitted he had taken, and accordingly gave such mortgage, which was drawn by a lawyer and duly acknowledged by him- and his wife. He was afterwards indicted for the offence, pleaded guilty and was sentenced. On foreclosure,—Held, that the mortgage was not void on the ground of duress.</p> <p>Note.—The process of a court cannot be used to extort from persons under arrest or threatened therewith, moneys alleged to be due from them or to have been stolen &c. by them. Hacked v. King, 6 Allen 58; iSeiber v. Price, 86 Mich. 519; Phelps v. Zuschlag, 81; Tese. 871; Bane v. Detrick, 58 III. 19; Fay v. Oailey, 6 Wis. 1¡8; Bowen v. Buck, 88 Vi. 308; Gebhart v. East Saginaw, Ifi Mich. 386.</p> <p>A defendant, by means of threats of personal violence and menaces, compelled one S. to pay him money which he believed to be justly due to him from S. On indictment therefor,—Held, not to constitute rob-' bery. State v. Hollyway, 1¡.1 Iowa 800.</p> <p>The following cases show the circumstances under which the obligations of defendants, given to obtain their discharge from legal arrest, have been sustained:</p> <p>In Shepard v. Watrous, 3 Caines 166, a defendant, under arrest for slander, made his note to the plaintiff, and agreed to submit the amount to be inserted therein to arbitrators who subsequently reported.</p> <p>In Crowell v. Gleason, 10 Me. 885, a defendant, while under arrest for an assault on A. and before the magistrate, on C.’s proposition that he (0.) should pay to the defendant a sum of money and stop the proceedings on condition that defendant convey to him certain lands, executed a deed therefor.</p> <p>In Meek v. Atkinson, 1 Bail. 84, a defendant under arrest on civil process for trover of a slave, requested the officer to wait until the arrival of some friends whom he expected to go his bail, to which the officer assented. Before the bail was given, the parties compromised by the surrender of the slave and the discontinuance of the suit.</p> <p>In Waterman v. Barrait, 1¡. Harring, 311, a defendant was sued in Delaware for a just debt and afterwards.arrested in Ohio on another suit for the same debt, and gave his note to obtain his release from confinement there. Also, Stouffer v. Latshaw, 8 Watts 165; Kelsey v. Hobby, 16 Pet. 869.</p> <p>In Smith v. Atwood, 1. Ga. 403, both plaintiff and defendant were in custody on suits brought against one another, and released one another.</p> <p>In Hatter v. Greenlee, 1 Port. 888, a defendant was arrested for stealing a slave of the plaintiff, and, when brought before the justice, surrendered the slave and gave a note on condition of his discharge from arrest and that plaintiff would dismiss the suit.</p> <p>In Cort v. Phillips, 8 H. Y. Leg. Obs. 308, A. was arrested for embezzling money from his employer, and taken before a magistrate. Afterwards he and B. gave a bond to A.’s employer, who intimated that the prosecution would be abandoned; nevertheless, his attorney told defendants that they were not to consider that there was any agreement to that effect.—Held, a question for the jury, whether the plaintiffs meant to forego the prosecution and that defendants signed the bond under that expectation. Also, Alexander v. Pierce, 10 N. H.494; Bibb v. Hitchcock, J/S Ala. 468.</p> <p>In Walbridge v. Arnold, 21 Conn. 424, a defendant, who was blind, was under arrest for an assault committed by him and several others on plaintiff, and, while under arrest, gave his note in compromise of the offence.</p> <p>In Fisher v. Apollinaris Co., L. P. (10 Ch.) 297, the prosecutors in a trade-mark case offered no evidence against the offender, and he was acquitted and gave a letter of apology to the prosecutors to use as they saw fit. They published the letter as an advertisement.—Held., that the arrangement as to the apology was not void for duress, and that the prosecutors could not be enjoined from publishing the letter. See Boston Co. v. Florence Co., 114 Mass. 69.</p> <p>In Orowne v. Baylis, 81 Beav. 851, a clerk had robbed the bank in which he was employed, of a large amount. On his detection and accusation, he confessed and offered to transfer to the bank two policies of insurance on his own life, and did so, to make amends as far as possible.—Held, that such transfer was valid. See Cox v. Paxton, 17 Ves. 829.</p> <p>In Hays v. Lusk, 2 Rawle 24, a defendant in charge of a constable, gave his sealed bill to settle a claim against him for killing plaintiff’s cattle, for which he was then in custody.</p> <p>In Work's Appeal, 59 Pa. St. 444, a mother and son were arrested on complaint of the father that they had fraudulently destroyed an assignment to him of a share of an estate, and, also, stolen his goods. While at the alderman’s office, the father agreed to withdraw the prosecution if the son would assign the fund to him and defendants pay the costs. Their counsel told them they would have to accept the proposition or go to prison. The assignment was thereupon made.—Held, not binding on the son.</p> <p>In Nelson v. Suddarth, 1 Hen. & Munf. 850, a defendant was decreed to convey certain lands to a complainant, and was attached for contempt for not complying. While in the custody of the sheriff, and on his advice, he gave a bond for the intervening profits of the land, and paid the amount. Afterwards, on review, the decree was reversed, and the .amount of the bond decreed to be repaid.</p> <p>In Taylor v. Cottrell, 16 Ill. 93, the defendant sold a boat to two different persons, and was arrested on a charge of swindling preferred by the first purchaser. While in the custody of the constable he gave a note with a surety for the value of the 'boat, and was thereupon discharged.</p> <p>In Stebbins v. Niles, SB Miss. 267, N. had been for several years the agent of an association in New York to sell lands in Mississippi, of which S. was the president. A dispute arose between them in regard to the sales, but N.’s accounts had never been questioned. After several invitations, N. went to New York, and, on his arrival, was arrested for a deficiency in his accounts, and held in §50,000 bail, which he was unable to obtain. Soon after his arrest he went with the officer to a house where he met S. and the solicitor of the company, and N. signed an agreement relinquishing his claims on the company, and was thereupon released.—Meld, that the agreement was void.</p> <p>In Smith v. Bowley, 66 Barb. BOS, the plaintiff’s husband was charged by the defendant with embezzling money from him, and she, at her husband’s request, and on the implied agreement of the defendant not to prosecute him, executed a deed of lands to the. defendant. Also, Green v. Scranage, 19 Iowa 461; Gohegan v. Leach, 24, Iowa 509 ; Eadie v. Slimmon, 26 N. Y. 9 ; Jackson v. Ashton, 11 Pet. 229; Ingersoll v. Roe, 65 Barb. 346. Query—How far a married woman’s acknowledgment of such an instrument, would cure any duress. Worcester v. Eaton, 13 Mass. 377; Bissett v. Bissett, 1 Har. & McH. 211; Central Bank v. Copeland, 18 Md. 319.</p> <p>In Legg v. Legman, 8 Blackf. 148, a debtor absconded and was pursued into another state by a creditor to whom he had given a forged note. He, being accused, admitted the forgery, and his creditor offered to return the note if he would deliver to him certain property, which was accordingly done. But see Dixon v. Olmstead, 9 Vt. 310.</p> <p>In Lyon v. Waldo, 36 Mich. 345, a wife began a prosecution against her husband for adultery and had him arrested. During his arrest he gave her a mortgage to abandon the prosecution, and thereafter for several years paid the interest thereon. On foreclosure by the wife, the court was equally divided on the point whether the mortgage was absolutely void, or only voidable and so ratified by the husband’s payments as to be enforceable. See Dixon v. Dixon, 7 C. E. Gr. 91; Sickles v. Carson, 11 C. E. Gr. 440.</p> <p>In Garth v. Earnshaw, 3 You. & Coll. 584, a wife had her husband indicted for an assault, but abandoned the prosecution after trial, in consideration of his settling on her an-'annuity.—Held, illegal, although entered into with the sanction of the court where the indictment was tried, and not provable as against the husband’s creditors.</p> <p>In Athens v. Ware, 39 Míe. 345, a bond given to obtain release from an arrest made by the collector for taxes in arrear, was deemed good. See Taylor v. Board of Health, 31 Pa. St. 73. So, in Bates v. Butler, lfi Me. 387, notes given by convicts for fines and costs, as authorized by statute. So, in Pood v. Winslow, 8 Doug. {Mich.) 68, a mortgage for $1.000 given by a convict, as a condition of his being pardoned.</p> <p>The duress may be waived by the obligor. Murphy v. Paynter, 1 Dill, 333; Davis v. Fox, 59 Mo. 125.</p> <p>Threats of an illegal arrest or imprisonment render void an instrument procured through them. Pichards v. Yanderpool, 1 Daly 71; Bush v. Brown, 49 Did. 573; Foss v. Hildreth, 10 Allen 76; Hoyt v. Dewey, 50 Tt. 465 ; Peg. v. John, 4 Cent. L. J. 68 ; Schultz v. Culbertson, 45 Wis. 313 ; Foshay v. Ferguson, 5 Hill 154; Jackson v. Ashton, 11 Pet. 839.</p> <p>But not threats to make a legal arrest or begin a criminal prosecution. Moore v. Adams, 8 Ohio 372; Harmon v. Harmon, 61 Me. 227; Knapp v. Hyde, 60 Barb. 80; Dixon v. Dixon, 7 C. E. Gr. 91; Catlin v. Henton, 9 Wis. 476; Claflin v. McDonough, 33 Mo. 412; Snyder v. Braden, 58 Ind. 143; Harris v. Tyson, 24 Pa. St. 347; Landa v. Obert, 45 Tex. 539; Plant v. Gunn, 2 Woods 372. See Waller v. Cralle, 8 B. Mon. 11; Fulton v. Pa. St. 365.</p> <p>Equity has jurisdiction to relieve in such cases. Story’s Eq. Jur. § 839; MfcLiii v. Marshall, 1 Heisk. 678; Harshaw v. Dobson, 64 N. C. 384; Thurman v. Burt, 53 III. 189; James v. Roberts, 18 Ohio 548; Miller v. Müller, 68 Pa. St. 466; Bowen v. Buck, 88 Vt. 308; Loomis v. Cline, 4 Barb. 453; Wilson v. Spencer, 1 Rand. 76; Breathwit v. Rogers, 38 Ark. 758; Henderson v. Palmer, 71 III. 579.</p> <p>How far the maxim in pari delicto etc. applies. Smith v. Rowley, 66 Barb. 508; Moore v. Adams, 8 Ohio 378; Schultz v. Culbertson, 45 Wis. 818; Gohegan v. Leach, 24 Iowa 509 ; Osborn v. Robbins, 86 N. Y. 865; 'Jackson v. Ashton, 11 Pei. 229 ; Bettinger v. Bridenbecker, 63 Barb. 895; Dixon v. Olmstead, 9 Vt. 810; SWight v. Rindskopf, 1¡8 Wis. 844; Worcester v. Eaton, 11 Mass. 868; -Tantum v. Miller, 8 Stock. 551; Gotwalt v. Neal, 25 Md. 4&4 i Adams v. Barrett, 5 Ga. Ifi4¡ Puckett v. Roquemore, 55 Ga. 285; Hoyt v. Dewey', 50 Vt. 465; ¡Goodall v. Lowndes, 6 Q. B. 464.</p> <p>If the compounding of a felony or offence forms part of the consideration of an instrument given in personal satisfaction, it renders it void: As cheating at cards (Osbaldiston v. Simpson, 18 Sim. 51S, 7 Jur. 734)', or disturbing a religious meeting (Edgcombe v. Rodd, 5 East 294); or forgery (State Bank v. Moore, 2 South. 470; Brittin v. Ohegary, Spen. 625; Thompson v. Whitman, 4 Jones Jfl; Garner v. Qualls, Id. 223; Williams v. Bayley, L. R. (1 II. of L.) 200; Legg v. Legman, 8 Blackf. I48) ; or obtaining goods or money under false pretences (Shaw v. Reed, 30 Me. 105; Baker v. Farris, 61 Mo. 389 ; Kimbrough v. Lane, 11 Bush 556 ; Conderman v. Hicks, 3 Lans. 108; Bowen v. Buck, 28 Vt. 808; Clubb v. Hutson, Hi O. B. (N. S.) 414> Porter v. Haven, 87 Barb. 343; Conderman v. Trenehard, 58 Barb. 165); or embezzlement (Southern Co. v. Duffey, 48 Ga. 858; Barclay v. Breckinridge, 4 Mete. (Ky.) 874; Cheltenham Co. v. Cook, 44 Ho. 29; Criichley’s Case, 8 Dowl. & D. 527; Drage v. Ibberson, 2 Esp. 648; Wickham v. Gatrill, 2 Sm. & Giff. 353; Partridge v.Hood, 120 Mass. 4O8; Bibb v. Hitchcock, 49 Ala. 468; Peed v. McKee, 42 Iowa 689; Phelps v. Auschlag, 34 Tex. 871; see Ward v. Lloyd, 6 M. & G. 785); or larceny (Com. v. Pease, 16 Mass. 91; Work's Appeal, 59 Pa .St. 444); or perjury (Collins v. Blantern, 2 Wils. 84I, 1 Smith’s Lead. Cas. *489; Pool v. Bonsfield, 1 Camp. 55 ; Harvey v. Morgan, 2 Stark. 17; Grover v. Bruere, 4 Hal. 819; Breathwit v. Rogers, 32 Ark. 758; Fellows v. Ilyring, 23 How. Pr. 230) ; or rape (Forshner v. Whitcomb, 44 N. H. 14; Loomis v. Cline, 4 Barb. 1¡53); or mayhem (Adams v. Barrett, 5 Ga. 404; but see Blake’s Case, 6 Rep. 43b); or abortion (Bettinger v. Bridenbecker, 63 Barb. 895; see Bush v. Brown, 49 Ind. 573); or for not opposing a divorce (Kilborn v. Field, 78 Pa. St. 194; Sampson v. Cresson, 6 Phila. 229; Stoulenburg v. Lybrand, 18 Ohio St. 228) ; or adultery (see Lyon v. Waldo, 36 Mich. 8Jf5, supra); or criminal conversation (Elworth v. Bird, 2 Bing. 258); or passing counterfeit money (Daimouth v. Bennett, 15 Barb. 541); or nuisances (Fallowes v. Taylor, 7 T. R. 475 ; Lindsay v. Smith, 78 N. C. 828); or extortion (Trough v. Entrikin, 11 Pa. St. 81) ; or malicious mischief (Cameron v. McFarland, 2 Car. Law Repos. 414) j or not repairing a highway (Reg. v. Blakemore, 14 Q. B. 544)-</p> <p>The exceptions to the rule are obligations given for an assault or battery (Price v. Summers, 2 South. 578; Whitenack v. Ten Eyck, 2 Gr. Ch. 24-9; State v. Hunter, 14 La-. Ann. 71; Mathison v. Hanks, 2 Hill (S. C.) 625; Holcomb v. Slimpson, 8 Vt. 144; Baker v. Townsend, 7 Taunt. 422; Elworthyv. Bird, 2 Sim. ch Slu. 872; Rushworlh v. Dwyer, 1 Phila. 26; see, however, Garth v. Earrshaw, 8 You. ch Coll. 584; Gardner v. Maxey, 9 B. Mon. 90; Vincent v. Groom, 1 Yerg. 430; Corley v. Williams, 1 Bail. 588); but not if the assault amounts to a riot (Keir v. Leeman, 6 Q. B. 808, 9 Q. B. 871); or, to compromise a prosecution for bastardy-(Haven v. Hobbs, 1 Vt. 288; Holcomb v. Stimpson, 8 Vt. 141; Bish. on Coni. I 476; Jackson v. Finney, 88 Ga. 512; Self v. Clark, 2 Jones Eq. 309; Iloit v. Cooper, 41 N. H. Ill; but see Smith v. Pinney, 82 Vt. 282) ; but not after an indictment therefor and the close of the state’s evidence (Shiver v. State, 23 Ga. 280); although it would be good after indictment but before trial (Goodall v. Lowndes, 6 Q. B. 461/). See, further, 7 Wait’s Actions 79.—Bep.</p>

<p>A mortgage was given by Holly and Platt to Brewster, in satisfaction of a decree for deficiency in favor of one Trippe against Holly and Platt on the foreclosure of a first mortgage on lands then owned by Holly and Platt, and bought at the foreclosure sale by Brewster and one Murphy. Trippe’s decree had then been assigned to Brewster and Murphy, who also held a second mortgage on the premises which had been given to Platt and assigned by him to them. On foreclosure of Brewster’s mortgage,—Held, that an agreement made two days after Brewster’s mortgage, by Brewster and Murphy, to assign to Holly and Platt the second mortgage (which, after the foreclosure and sale under the first, possessed no value), on their satisfying the decree for deficiency, the evidence being unsatisfactory that any demand for such assignment had ever been made, was satisfied by Brewster and Murphy’s tender of such assignment when their bill was filed.</p>

<p>Bill for partition and cross-bill. On state of tbe case.</p>

<p>A testator gave the residue of his estate to his executors, in trust to pay one-sixth thereof to the children of a deceased daughter, and to pay the income of' the remaining five shares to his children during their natural lives, and then their shares to go to their issue respectively ; and if any of his children should die leaving no lawful issue, the share of such child should sink into the residue; and, in order to make an equal division of his estate, that any obligations he might hold against any of his children, and all advances to any of them charged against them in his accounts, should be deducted from their respective shares, and income allowed them only on the residue, and the lawful issue of any child should take only such residue. At the time of testator’s death, four of his children were indebted to him on obligations held by him, one son to an amount exceeding his share of the estate; that son had a daughter (his only child) living when the will was made, but she has since died. The testator assigned as a gift to one of his daughters a bond and mortgage given by her husband (she joining in the latter) on his property, but whether this was charged to her in testator’s accounts does not appear.—Held,</p> <p>(1) That if no such charge against her was made, it cannot be deducted from her share.</p> <p>(2) That the son who was indebted to the estate in excess of his share, must pay such excess, and no more.</p> <p>(3) Query, whether the English rule that “dying without leaving issue ” means having had no lawful issue, and hence that the death of such issue during the parent’s life-time, does not destroy such issue’s prior, vested interest, has been adopted here.</p>

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

<p>Bill for relief. On motion that complainants elect.</p>

<p>On application .for the money due on the decree, which has been paid into court.</p>

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

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

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

<p>To a foreclosure suit, a creditor claiming,, by his attachment, a lien on the mortgage debt, was made a party, and an injunction staying his proceeding at law granted. After a sale of the premises under the foreclosure and payment of the money into court,—Held, that his motion to dissolve the injunction and proceed at law must be denied, and that he must litigate his claim in this court.</p>

<p>1. On a question of legitimacy, a marriage certificate proved to be genuine, and, produced by and from the custody of the mother of the person whose legitimacy is in question, is competent evidence and strongly corroborative proof of the alleged marriage.</p> <p>2. Where the legitimacy of ft person is in issue, an acknowledgment-of him by his parents’ kinsmen as their relation may be given in evidence as evidence of the marriage which must have preceded his birth if lawful.</p> <p>3. Where there had been diggings by the then owner of the fee for minerals for the manufacture of copperas and Venetian red and Spanish brown, which diggings had been discontinued for about seventy years, and there had been explorations or excavations by such owner of the fee for the ore as iron ore, but, it proving valueless, the pursuit was thereupon abandoned and no further working done,— Held, that the tenant for life had no right to mine for ore, and that such mining was consequently waste.</p>

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

<p>Bill to foreclose. Motion in bebalf of the National State Bank of Elizabeth to amend decree for deficiency. On petition, and affidavit.</p>

<p>Bill for relief. On motion to alter final decree. Re-adjustment of equities.</p>

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

<p>A debtor who has conveyed his property in order to defraud his creditors, has no standing in this court to question the fairness or adequacy of price obtained at a public sale of such premises under a creditor’s bill to reach such property.</p>

<p>A mortgage on his share of certain lands had been given by one of two tenants in common. Under partition proceedings, and at the master’s sale, notice of its existence was given to the master and to the assembly, whereupon the master directed the auctioneer to sell the property “subject to all legal and prior encumbrances.” The premises were bought by the co-tenant, at their full value, and with the understanding, on her part, that the mortgage was to be paid out of her co-tenant’s share of the purchase-money.—Held, that the master’s notice was unnecessary, since the decree ordered the premises to be sold, without mentioning any encumbrances, and the sale was to be made clear of encumbrances, and that the sale would be confirmed and the mortgage paid out of the half of the proceeds representing the share on which it is a lien.</p>

<p>In adjusting the priorities of several encumbrancers on lands of an insolvent corporation in the hands of the receiver of this court.—Held,</p> <p>(1) That, banks which had loaned money to such corporation on notes endorsed by its directors, were entitled to be subrogated to the rights of such directors, under a mortgage given to them by the corporation to indemnify them for such endorsements.</p> <p>(2) That the receiver had power to adjust by agreement the rights of claimants under the mechanics lien law, although no steps beyond filing their claims had been taken.</p> <p>(3) That where such claims have passed into judgment with the receiver’s knowledge, they should be regarded as established.</p> <p>(4) That where a lien claim was filed after the beginning of the insolvency proceedings in this court, it is not necessary to pursue such claim to judgment unless so required by the court or receiver.</p>

<p>Bill to foreclose.</p>

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

<p>On February 24th, 1876, an intestate assumed, in a deed to him of certain lands, to pay a mortgage thereon, and, also, gave complainants his bond, conditioned to pay the mortgage debt in one year thereafter. He died in March, 1878, and complainants’ foreclosure bill was filed in November, 1878. On April 6th, 1878, his administrator took the usual order limiting the time for presenting claims against the estate to nine months thereafter. The complainants never filed any claim thereunder.—Held, that the administrators were not liable to a decree for deficiency on their intestate’s assumption.</p>

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

<p>Creditors’ bill. On final hearing bn pleadings and proofs.</p>

<p>Bill to quiet title. Ou general demurrer.</p>

<p>In insolvency. On petition of the receiver for directions.</p>

<p>A mortgage was given by the defendant and his wife, on her lands, to secure his bond to the complainant for $2,100. This sum consisted of $1,100 in cash loaned to defendant and $1,000 which defendant voluntarily proposed should be included as compensation to the complainant for his (or his firm’s) trouble and expense in collecting certain promissory notes for $7,000, given by the defendant and his partner, and bought in the market by complainant’s firm. On foreclosure,— Held,</p> <p>(1) That the act {Rev. p. 887 § 5S) making a seal only presumptive evidence of a consideration, is a mere change in the rule of evidence, and does not, of itself, avoid a voluntary conveyance.</p> <p>(2) That a mortgage may be sustained against everybody but existing creditors, although it was intended merely as a gift.</p> <p>(3) That a voluntary mortgage, by a wife, of her lands to secure her husband’s debt, is valid.</p>

<p>Where there is conflicting evidence as to a husband’s object in making a conveyance of lands to his wife, the ordinary presumption that it is. intended as a provision or settlement for her benefit, is not rebutted.</p>

<p>Where a conversion of testator’s real estate was ordered to be made after the death of a life tenant, unless converted during the life-time of such tenant at her request, and “ the balance of my estate (after paying a legacy of $8,000) to be equally divided among my heirs,"— Held,</p> <p>(1) That, by “ the balance of my estate,” testator meant his entire estate, whether derived from the sale of his real estate or otherwise.</p> <p>(2) That it should go to his next of kin who were living at the time of his death.</p> <p>(3) That his sisters and the children of two deceased sisters and of a deceased brother, took per capita, to the exclusion of the grandchildren of such deceased brothers and sister.</p>

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

<p>A mortgage was given in 1873, on lands described as follows : “Commencing at a point formed by the intersection of the easterly line or side of Summit avenue and the northerly line of Charles street, and running thence, &c., * * * and which said lots are more fully known and distinguished upon a map entitled Map of Johrisonville, * * * dated April 1st, 1854, * * * by the Nos. 70, 71, 72, 73 and 74.” After foreclosure of the mortgage and sale, the mortgagor fenced in a strip twelve feet wide, extending along the whole front of the-property on Summit avenue, claiming that the description of the mortgage refers to the map, whereas, in 1867, after the map was made, twelve feet on the east side of Summit avenue was vacated, and that only the land within the lines of the lots on the map, excluding the strip of twelve feet, passed under the mortgage.—Held, that the mortgage having been given after the vacation of the strip on the east side of the street, the description must be applied to Summit avenue as it existed when the mortgage was given, and included the strip.</p>

<p>Bill for relief. Motion to dissolve injunction on bill and answer.</p>

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

<p>On the foreclosure of a second mortgage, the premises were ordered to be sold to satisfy, in the first place, the first mortgage, and, secondly, the second mortgage. Owing to a misunderstanding of the solicitors of the parties, the premises, worth $2,500, were bought by the lirst mortgagee for $25.—Held, that the sale should be set aside on the ground of surprise and inadequacy of price, the surprise consisting in the misunderstanding on the part of the second mortgagee, who was the obligor in the bond secured by the first mortgage, that the bid was for the property, subject to the first mortgage.</p>

<p>1. The statute of limitations is not a bar to a suit in equity for the recovery of a legacy payable out of the personal estate only.</p> <p>2. A testator directed the remainder of his real estate to be converted into cash and divided among his “heirs,” as follows: the interest on one-third to be paid to two persons for life, and the principal to their children ; one-third to the complainant, and the remaining third to the executor for his services in settling the estate. The will was proved January 23d, 1852; the executor settled his account in the orphans court, January 11th, 1859, and a decree of distribution was made thereon: part of complainant's share was paid to her by the executor, but when does not appear.—Held, that the statute is not a bar to her bill, filed January 10th, 1879, to recover the remainder of her bequest.</p> <p>Note.—At common law, a suit would not lie to recover legacies, whether pecuniary or specific, unless the executor had assented to them (2 Roper on Leg. 1798; 1 Story’s Eq. Jur. I 891; Adams Eq. 250; Gause v. Hughes, 9 Port. 555; Harwell v. Jacobs, 4 Mass. 635; Dewitt v. Schoonmakcr, 2 Johns. 243 ; 3 Wms. on Ex'rs 2046 ; Parish v. Wilson, Peake 78; Bishop v. Curtis, 17^ Jur. 28; Ducasse v. Richaud, Anth. N. P. 198, note; Chester v. Greer, 5 Humph. 26; see Woodward v. Woodward, 4 Hal. 116; Henley v. Welch, 11 Mod. 91 \ 15); or expressly promised to pay them (8 Wms. on Ex'rs 2046-2048; Gause v. Hughes, 9 Port. 561; Wind •v. Jelcyll, 1 P. Wms. 575; Gridley v. Gridley, 33 Barb. 250; Goodwin v. Chaffee, 4 Conn. 163). Nor does an action lie for a distributive share before a decree of distribution (Jones v. Tanner, 7 B. & C. 542; Wiers v. Lum, 2 South. 823; Ordinary v. Smith, 3 Gr. 92; Wade v. Potter, 2 Gr. 278). Aliter, in equity (Frey v. Demarest, 1 C. E. Gr. 286; Dorsheimer v. Rorback, 8 C. E. Gr. 43).</p> <p>Formerly the ecclesiastical courts alone had jurisdiction for the recovery of personal legacies (1 Story’s Eq. Jur. $ 590; 2 Roper on Leg. 1791; Capel v. Robarts, 8 Hagg. 156, note (a); Waldern v.’Ward, Sul. 46, 3 Salk. 223; Lobach’s Case, 6 Watts 175; 4 Burns Ec. La,w 80S; see Paschall v. Iieterich, 2 Dyer 151 b; Barker v. May, 9 B. & C. 489 ; and when equity assumed jurisdiction in such cases, it necessarily followed the ecclesiastical law (Eeiley v. Monde, 3 Ridg. P. C. 243; 1 Story’s Eq. Jur. § 602).</p> <p>Another ground on which equity exercises jurisdiction, as stated by the chancellor, is that of trust (1 Story’s Eq. Jur. § 593; Bark v. Bin-stead, 2 Md. Ch. 162; Malear v. O’Hara, 9 111. 4%4 > Mill v. Rockingham Bank, 44 N. H. 567; Eoscue v. Foscue, 2 Dev. & Bat. Eq. 65; Taliaferro v. Thornton, 6 Call 21; Bugbee v. Sargent, 23 Me. 269; Segrave v. Eirwan, Beat. 163).</p> <p>As to equity exercising ecclesiastical jurisdiction in the United States, see MqClurg v. Terry, 6 C. E. Gr. 228; Anon., 9 C. E. Gr.24; Godwin v. Hunan, Jeff. (Va.) 96; Be Barron v. Be Barron, 35 Vt. S65j Crump v. Morgan, 3 Ired. Eq. 91; Redmond v. Collins, 4 Dev. 430, 44®; Wighlman v. Wightman, 4 Johns. Ch. 343; Jeans v. Jeans, 2 Harring. 38; Bauman v. Bauman, 18 Ark. 320 ; Beekman St. Case, 4 Bradf. 503 ; Youngs v. Ransom, 31 Barb. Ifi; Perry v. Perry, 2 Paige 501; Mattison v. Mattison, 1 Strobh. Eq. 387; Burtis v. Burtis, Hopk. 557; Olin v. Hunger/ord, 10 Ohio 270; North v. North, 1 Bari. Oh. 241; Head v. Head, 2 Kelly 191; Almond v. Almond, 4 Band. 666; Nogees v. Nogees, 7 Tex. 548 ; Dickinson v. Dickinson, 8 Murph. 827; Butler v. Butler, 4 Ditt. 201; Dockridge v. Lockridge, 8 Dana 28; Glover v. Glover, 16 Ala. 44® > Bhame v. Bhame, 1 McCord Ch. 197; Galland v. Galland, 88 Cal. 266; Chapman v. Chapman, 18 Ind. 896; Shannon v. Shannon, 2 Gray 285; Lawson v. Shotwell, 27 Miss. 630; Doyle v. Doyle, 26 Mo. 545; Morton v. Morton, 33 Mo. 614; Peltier v. Peltier, Harring. Ch. [Mich.) 29; Anshutz v. Anshutz, 1 C. E. Gr. 162; Yule y. Yule, 2 Stock. 188; Helens v. Franciscus, 2 Bland 568; Wilson v. Wilson, 2 Dev. & Bat. Fq. 877.</p> <p>The statute of limitations could never be set up in an ecclesiastical court, and hence could not be a defence to a suit there for a legacy [Higgins v. Higgins, 4 Bagg. 242; Hide v. Partridge, 2 Salk. 424; Walker v. Dean of York, 8 Kel. 866, '892; see Chase v. Cheney, 58 111. 509,582).</p> <p>On the ground that the relation between an executor and a legatee was one of trust, the executor has been restrained from interposing the statute of limitations as a defence to a suit for a legacy, in the following cases: Watson v. Saul, 1 Gif'. 188; Higgins v. Crawford, 2 Ves. 571; Ravrnscrqft v. Frisby, 1 Coll. 16; Parker v. Ash, 1 Vern. 256; Pickering v. Lord Stamford, 2 Ves. 581 [although now barred in England bjr statute, 8 <£• 4 Wm. IV c. 27. Holland v. Clark, 1 You. & Coll. 151; Sheppard v. Duke, 9 Sim. 567; Piggott v. Jefferson, 12 Sim. 26; Binns v. Nichols, L. R. (2 Eq. Cas.) 256; Cadbury v. Smith, L. P. (9 Eq. Gas.) 87 ; Knox v. Kelly, 6 Irish Eq. 279; Proud v. Proud, 82 Beav. 284; Prim• v. llornihlow, 2 You. & Coll. 200] ; Me Craw v. Fleming, 5 Ired. Eq. 8J;8; Winston v. Street, 2 Pat. & Heath 169; Perkins v. Cartmell, 4 Hearing. 270; McDonald v. McDonald, 8 Yerg. 144; Nelson v. Cornwell, 11 Graft. 724 ! Spar hawk v. Buell, 9 Vt. 41; Salter v. Blount, 2 Dev. & Bat. Eq. 218; Cartwright v. Cartwright, 4 Hayw. 135; Durdon v. Gaski.ll, 2 Yeates 268; Thompson v. McGaw, 2 Watts 161; Doebler v. Snavely, 5 Watts 225; Brown’s Case, 8 Phila. 197; Tinnen v. Mebane, 10 Tex. 246; Strohm’s Appeal, 28 Pa. St. 851; Kent v. Dunham, 106 Mass. 586.</p> <p>Contra, American Soc. v. Ilebard, 51 Barb. 552, 41 H. Y. 619; Smith v. Remington, 4% Barb. 75: Young v. Cook, 30 Miss. 820; Nolasco v. Imrty, 13 La. Ann. 100; DeGrcff .v. Terpenning, 14 Hun 301; Roberts v. Roberts, 84 Miss. 822; Loder v. Hatfield, 4 Hun 86. See Saxon y. Barksdale, 4 JDesauss. 522; Templeton v. 'Tompkins, 45 Miss. 4®4i Wallace v. Cowell, 3 Ired. 823.</p> <p>Although, from lapse of time and other circumstances, legacies may be presumed to have been satisfied. Smallman v. Lord Hamilton, 2 Atk. 71; Jones v. Turberville, 2 Ves. 11; Campbell v. Sandford, 8 Bligh 622 ; Okeson's Appeal, 2 Grant's Cas. 303; Anderson v. Burwell, 6 Qratt. 405; Shearin v. Eaton, 2 Ired. Eq. 282; Hamblin v. Mebane, 1 Jones Eq. 18; Summer-ville v. Holliday, 1 Watts 507; Kiddlehoover v. Kinard, 1 Hill's Ch, 378; Sims v. Augherty, 4 Strobh. Eq. 103 ; Burkhead v. Colson, 2 Lev. & Bat. Eq. 77; Glover v. Lott, 1 Strobh. Eq. 79; Eoulk v. Brown, 2 Walts 209; Morrison v. McElrath, 4 Lev. & Bat. 474•</p> <p>How far length of time may be a bar between the next of kin and an executor de son tort, who afterwards obtains administration, see Scott v. Knox, 4 Irish Eq. 897; also, McIntire v. Carson, 2 Hawks 544 i Burnet v. Bryan, 1 Hal. 377.</p> <p>An administrator cannot plead the statute in a suit by the next of kin for a distributive share. Lafferty v. Turley, 8 Sneed 157; Harriet v. Swan, 18 Ark. 495; Jones v. Jones, 28 Ark. 19; Amos v. Campbell, 9 Fla. 187 ; Smith v. Calloway, 7 Blade/. 86 ; Pennepadcer v. Pennepadcer, 2 Clark {Pa.) Ill; {857); Lindsay v. Lindsay, 1 Desayss. 150; Bushee v. Searles, 77 N. C. 62; Carr v. Lowe, 7 Heisk. 81;; Falls v. Torrance, 2 Hawks IfiO; Bird v. Graham, 1 Ired. Eq. 196 ; Glen v. Kinbrough, 5 Jones Eq. 178. See Simpson’s Case, 1 Phila. 300; Heald v. Heald, 5 Greenl. 887; Payne v. Harris, 3 Strobh. Eq. 39; Buchan v. James, Spear’s Eq. 875; Harrison v. Harrison, 89 Ala. 489; Colburn v. Holland, 13 Rich. Eq. 176; Graham. v. Torrance, 1 Ired. Eq. 210; State v. Blackwell, 20 Mo. 97; Prevost v. Gratz, 6 Wheat. 481; Wilkerson v. Bunn, 7 Jones 125. The statute runs after the administrator’s removal. Jacobos v. Pow, 18 Ga. 846.</p> <p>There are other eases, besides those in New York, holding that where the remedy to recover a legacy is concurrent, the statute applies to suits in equity. Pratt v. Northern, 5 Mason 95; Phares v. Walker, 6 Iowa 106. See Dugan v. Gittings. 3 Gill 138; Young v. Mackall, 8 Md. Ch. 898.</p> <p>If an executor pays a legacy, a suit by him to recover the amount, on the ground of over-payment &c., may be barred by the statute. Ely v. Norton, 1 Hal. 187; Frost v. Frost, 4 Edw. Ch. 788; Myers v. Skrine, Harp. Eq. 179 ; Shelburne v. Robinson, 8 III. 597.—Hep.</p>

<p>In consideration of the conveyance of a strip of land lying between the buildings of complainant and defendant, the latter agreed to construct, on such strip, stairs for the use of both buildings, of a certain width, and with the platforms built so as to enter the several stories of complainant’s building on a level. Specific performance decreed, even after the defendant had finished his own building and also the stairs, the latter not conforming to the agreement, either in width or in the location of the platforms.</p>

<p>Bill for relief. Motion to open final decree and let in the defendants, the executors of Thomas Hinchman, deceased, to defend.</p>

<p>Bill for relief. Question certified by advisory master-John Hopper, esq.</p>

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

<p>1. A guardian, who was appointed at his own request, held personally responsible for the loss of his ward’s legacies, where such loss was directly attributable to his want of business judgment, jf not culpable negligence.</p> <p>'2. In this case, the guardian, immediately after having been appointed, applied to the executor in reference to the ward’s legacy. The executor had, by a covinous sale to himself, become possessed of a large part (a farm) of the testator’s real estate, on which he had given a mortgage to the widow for k large sum of money to secure to her an annuity given to her by the will (with power to spend the principal), for security for the legacy, not for payment, and received from the executor a second mortgage therefor, which he took in his own name and not as guardian. The widow died, the executor (her son) became her administrator, and as such sold the mortgage given to her and wasted the money. To prevent a foreclosure on that mortgage, the guardian took the title to the farm in his own name, and not as guardian. According to the evidence, he might have collected, without recourse to the farm, at least a considerable part of the legacy when he took the mortgage, and he might, in equity, have set aside the sale of the farm to the executor as fraudulent. He never paid any attention to the first mortgage; the principal of it was assets of the testator and applicable to the legacy, and so, too, was another piece of property (a house and lot) in which part of the legacy to the widow was invested, but he permitted both to be wasted and lost to the testator's estate, and, therefore, to his ward as legatee. On filing his account, he claimed credit for the. investment of the legacy .in the farm, which, however, was not worth the legacy.—Held, that his conduct was characterized by such want of ordinary business prudence, if it did not, indeed, exhibit supine negligence, as to make him chargeable with the legacy.</p>

<p>1. A misdescription of the metes and bounds of lands covered by a mortgage, in the deed of commissioners in partition, made in 1849, and also an erroneous reference to another deed by way of location, will not invalidate such mortgage, where the identity of the property is fixed by the desci-iptions in the other deeds of the commissioners, by the actual location, possession and occupation of the grantees since 1849, and by the description in defendant’s own deed, which also declares that the premises- are subject to the lien of the mortgage.</p> <p>2. A defendant who postpones the hearing of a' cause term after term, and on whom an order to close his testimony was duly served, must be deemed, to have waived all objections to complainant’s not having strictly observed the rules of this court restricting the time for taking and filing evidence.</p>

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

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

<p>1. The defence of fraud in the consideration of a mortgage, which does not overthrow the instrument, but merely reduces the amount recoverable upon it, cannot be made on answer alone, but a cross-bill must be filed.</p> <p>2. A foreclosure suit is so far a proceeding in rem as to exclude the defence of set-off.</p> <p>3. Recoupment is the right to set off unliquidated damages, while the right of set-off, as distinguished from recoupment, comprehends only liquidated demands, or those capable of being ascertained by calculation. ,</p>

<p>On petition and proofs and order to show cause why decree of divorce should not be set aside.</p>

<p>On final hearing before the vice-chancellor, on bill and answer, and an offer to make proof of certain facts by oral evidence.</p>

<p>On motion by the complainants to suppress the answer of the defendant corporation, and, also, on an application by the defendant Squier for leave to file an amended answer.</p>

<p>1. If a prior mortgagee releases part of the mortgaged premises, to the prejudice of a subsequent encumbrancer or purchaser, with notice of such subsequent mortgage or deed, his release will operate as a discharge of his lien, to the extent of the value of the land released.</p> <p>2. Actual notice need not be shown in such a case; it is enough if notice of sufficient facts out of which the subsequent equity arises, is brought home to the mortgagee to make it his duty to inquire before acting.</p> <p>3. Mere possession, standing alone, without the mortgagee’s knowing who has possession, and without notice of any facts which should provoke inquiry, will not amount to notice.</p> <p>4. In the absence of express notice or anything to excite inquiry, a mortgagee has a right to presume that affairs remain as they were when his mortgage was executed, and that his mortgagor still continues to be the owner of the mortgaged premises.</p> <p>5. As a general rule, a mortgagee is not chargeable with notice, by construction, of rights acquired in the-mortgaged premises subsequent to the execution of his mortgage.</p>

<p>1. A father is bound to support his infant child, if of sufficient ability, even though the child may have an ample estate of its own, hut if the father is not able to support his child, or not able to support it according to its station and expectations, a court of equity may appropriate its own estate to its support.</p> <p>2. Where a legacy is given to an infant unconditionally, so that it vests at once, but is payable when it attains twenty-one, or at any other future time, and its father is not able to support it, and the interest arising from the legacy is not sufficient for that purpose, a court of equity may, in advance of the time fixed for payment by the will, order the principal of the legacy applied to the support of the legatee.</p> <p>3. Such an order should, however, only be made after a reference and upon satisfactory proof of such facts as clearly show that it is necessary.</p>

<p>1. A contract giving a party an exclusive right to dig ore in certain-lands, no estate or interest in the land being granted, is a license and not a grant or demise.</p> <p>2. A license is an authority to go upon the land of the licensor and do an act or series of acts there, but passes no estate or interest in the land.</p> <p>3. Unless coupled with an interest, or an equity has been created by acts done in pursuance of a license, a license is always subject to-revocation in either of the following methods: (1), by the will of the licensor; (2), by the death of either of thé parties, or (3), by a conveyance of the land upon which it was intended to operate.</p> <p>4. Where a mining license is granted by a licensor, for the purpose of having his lands explored and their mineral resources developed,, and it contains a provision that if the licensee concludes to abandon, digging ore, he shall notify the licensor, if the licensee, after making an opening in the lands and finding a large deposit of ore, does in fact-abandon the enterprise, because the ore is comparatively valueless, he-will be held to have abandoned the mine, though he gave no formal notice.</p> <p>5. His conduct, under such circumstances, constitutes the best sort of notice.</p>

<p>On final hearing on bill, answer and proofs taken before a master.</p>

<p>1. No definition of fraud can be framed which will embrace every case, but no deception or artifice will be held to be an actionable fraud which does not cause injury or prejudice to the party seeking redress.</p> <p>2. Courts have no power to enforce moral duties or to correct unconBcientious acts which work no loss or damage.</p> <p>3. A party cannot be defrauded in being induced to do what good faith and a proper observance of his promises make it his duty to do.</p>

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

<p>Appeal from Hudson orphans court. Motion to dismiss appeal.</p>

<p>The statute (Rev. p. 771 & 86) provides that an appeal from the decree of the orphans court, on a claim against an insolvent estate, must be taken within twenty days from the time of rendering the decree. Exceptions to a claim were heard October 10th, 1879. About November 15th, 1879, the court rendered its decision, but announced no time for signing the decree. The decree was signed December 2d, 1879, which was not a regular court day, and was marked as filed as of that date, by “ G. L., late surrogate.” G. L. was not then the surrogate of the county. On December 17th, 1879, the appellant’s proctor inquired for it of the actual surrogate, who did not know of its existence, but searched- for and found it on that day, and marked it filed as of that date.—Held, that an appeal taken on December 31st, 1879, was within the time limited by the statute.</p>

<p>On the distribution of an intestate’s estate after his death in 1874,— Held, that the claim of his granddaughter Kachel (daughter of his deceased daughter) to a share, could be resisted by proof of the illegitimacy of her mother, notwithstanding intestate’s recognition of Rachel’s mother as his daughter by an entry in his family Bible, and, also, in other ways ; and notwithstanding, also, that intestate, his wife and daughter (Rachel’s mother) are all dead, and that Rachel’s mother’s legitimacy was never questioned until after the death of her father and mother and herself, and not until the intestate’s (her father’s) estate was about to be distributed.</p> <p>Note.—Among the declarations of parents admissible to prove the birth of a child before their marriage, may be an answer in chancery (Goodnight v.' Moss, Cowp. 591 [although this case has been sometimes questioned, Berkley Peerage Case, 1¡, Camp. ¡¡.SO; and by Justice Lowrie dissenting in Páige v. Dennison, 1 Grant's Cas. 887] ; also, Wharton Peerage, IS Cl. & Bin. S95; Burns v. Bums, IS Fla. 879; Henderson v. Cargill, 31 Miss. 867); but not a bill (Stark. Evid. (9th Am. ed.) *1(39; Johnsonv. Johnson, 1 Cold. 6S6); or, recitals in deeds (Picking’s Appeal, S-Brews. SOS; Pose v. Clark, 8 Paige 581; Richard v. Brehm, 73 Pa. St. 140); or, recitals in wills (Johnson v. Johnson, 1 Desauss. 595; Vulliamy v. Huskisson, 8 You. & Coll. 80; Pearson v. Pearson. 86 Cal. 609; Johnson v. Pembroke, 11 East 501f.; Slaney v. Wade, 1 Myl. & Cr. 888; Kenyon v. Ashbridge, 85 Pa. St. 157; Blackburn v. Crawfords, 3 Wall. 175; Viall v. Smith, -6 R. 1. J¡.17; Richard v. Brehm, 73 Pa. St. I4.O ; Haden v. Ivey, 51 Ala. 881; although not conclusive, Ehringhaus v. Cartwright, 8 Ired. 89); or, letters addressed to the wife (Ferrie v. Pub. Adm'r, 3 Bradf. 168; Vincent's Appeal, 60 Pa. St. 228); or, parol declarations that they had never been married (Craufurd v. Blackburn, 17 Md. J;9; Barnum v. Barnum, 42 Md. 262; Wright v. Hicks, 16 Ga. 160; Haddock v. Boston & M. JR. JR., 3 Allen 298 ; Niles v. Sprague, 13 Iowa 198 ; JDannelli v. Dannelli, 4 Bush 61; Alexander v. Chamberlain, 1 N. Y. Sup. Ct. 600; see Scherpf v. Szadeczky, 4 E. B. Smith 110; Rockwell v. JDunnicliff, 62 Barb. Ifi8; Boykin v. Boykin, 70 N. C. 262; Hamilton v. Hamilton, 9 Cl. Fin. 327; Kuhl v. Knauer, 7 B. Mon. 130); as to declarations of a godfather, see Fielder v. Fielder, 2 Ilagg. 196.</p> <p>Whether general reputation is admissible, see Haddock v. Boston & M. JR. JR., 3 Allen 298; Stegall v. Stegall, 2 Brock. 266 ; Davis v. Orme, 36 Ala. 540; Buchanan v. State, 66 Ala. 164; Wright v. Hicks, 15 Ga. 160; Myatt v. Myatt, 44 HI. 478! Miller v. White, 80 III. 580 ; Boone v. Burnell, 28 Md. 607; McGoon v. Irvin, 1 Finney 526; Henderson v. Cargill, 31 Miss. 367; or, proof that the child resembles its putative parent, by offering the child as an exhibit, or otherwise, Hubback *384; United States v. Collins, 1 Cranch C. C. 692; Wright v. Ilicks, 15 Ga. 160 ; Morris if. Davis, Nicolas's Ad. Bast. 217; Risk v. State, 19 Ind. 152; Reitz v. State, 33 Ind. 187 ; State v. Bowles, 7 Jones 579; Jones v. Jones, 46 Md. 144> Warlick v. White, 76 N. C. 175.</p> <p>The lapse of time increases the presumption as to the legitimacy of offspring (Ferrie v. Pub. Adm'r, 4 Bradf. 28, 23 N. Y. 90, 13 Wall. 466 ; Chambers v. Dixon, 2 Serg. & JR. 1¡JY5; Kelly v. McGuire, 15 Ark. 605 ; Piers v. Piers, 2 H. of D. Cas. 331; Stevenson v. Gray, 17 B. Mon. 205 ; Cope v. Pearce, 7 Gill 2Jf!; Rogers v. Park, 4 Humph. 480; see Duins v. Donovan, 3 Ilagg. 301) ; and it‘has been said that after the death of the parents, their marriage cannot be drawn in question to bastardize their issue (Com. Dig. Bastard (19.); $ Stark. Evid. *2,21; Harris v. Hicks, 2 Salk. 548; Jackson v. Behm, 6 Jones Eq. 143; Spears v. Burton, 81 Miss. S47; Powell v. Powell, 27 Miss. 783); so, where the issue was also dead (Johnson v. Johnson, 1 Desauss. 595; Johnson v. Johnson, 80 Mo. 72); so, a divorce, to bastardize the issue, cannot be decreed after the death •of one of the parties to a voidable marriage (Wickham v. Enfeild, Cro. Car. 352 ; Elliott v. Gurr, 2 Phillim. 16 ; Bonham v. Badgley, 7 III. 622 ; Parker's Appeal, 44 Pa. St. 309 ; Walter's Appeal, 70 Pa. St. 892; A. v. B., I. B. (1 P. & D.) 559; Park v. Barron, 20 Ga. 702; Banks v. Banks, 84 Ga. 407; Stevenson v. Gray, 17 B. Mon. 193 ; Tomppert v. Tomppert, 18 Bush ■326 ; Harrison v. Harrison, 22 Md. 468 ; Cropsey v. McKinney, 80 Barb. 47f Bowers v. Bowers, 10 Bich. Eq. 551; Sacked v. Giles, 8 Barb. Ch. 204; Brocas v. Brocas, 2 Sw. & Tr. 383; Grant v. Grant, Id. 522; see Anon., 12 Mod. 415 > Hemming v. Price, Id. 48®, Taylor v. Taylor, 1 Dee 571 ; Adkins v. Holmes, 2 hid. 197; Com. v. Perryman, 2 Leigh 717 ; Griffin v. Banks, 24 How. Pr. 213, 37 H. Y. 621; Gaihings v. Williams, 5 Ired. 457 ; Manchester v. Springfield, 15 Vt. 885 ; Boatman v. Curry, 25 Mo. 438 ; Ward v. Dulaney, 23 Miss. 410; Baugh r. Baugh, 37 Mich. 59; Sloan v. Kane, 10 flow. Pr. 66 ; Beavan v. McMahon, 2 Sw. & Tr. 58).</p> <p>Unless made evidence by statute, the mere, certificate of a minister as to a marriage ceremony performed by him, is inadmissible (1 Bish’. Mar. & Div. Jf!2, 478 ; Cains v. Belf, 12 How. 472; Ellis v. Ellis, 11 Mass. 92 ; Com., v. Littlejohn. 15 Mass. 163 ; see Taylor v. State, 52 Miss. -84; Blackburn v. Crawfords, 8 Wall. 175; Arms v. Middleton, 23 Barb. 571; Stoakbridge v. Quick, 3 Car. & K. 805; Tandy v. Maslerson, 1 Bibb 330; He Amarelli's Estate, 2 Brews. 289: Allen v. Hall, 2 Hod & McC. 115),</p> <p>A certified copy of a marriage record, when required to be kept by statute, is plenary evidence of such marriage (1 Bish. on Mar. & Biv. <$• 463, J/,69; Egremont v. Gronzebroolc, 4 Ad. & El. (IV. (S'.) 406 ; Cooke v. Lloyd, Peake's Evid. App. xxi; Wollaston v. Barnes, 1 M. & Bob. 386 p Verholf v. Van Ilomvenlengen, SI Iowa 439 ; Prevost's Case, 4 La. An. 847 p Northjield v. Plymouth, SO Vt. 5SS; State v. Hasty, 4® Me. S87; Blackburn v. Crawfords, 3 Wall. 175; Kan. Pac. B. B. v. Miller, S Colorado 44®; Beggs v. State, 55 Ala. 108; Jones v. Jones, 18 Me. 308; Childress v. Cutter, 16 Mo. S5). But the evidence of such certificate is not of a higher order than that of the witnesses to the ceremony (1 Bish. Mar. & Biv. D 468 ; Logan v. Gray, Tappan 69 ; Viall v. Smith, 6 B. I. 419 ; Nixon v. Brown, 4 Blackf. 157; Mills v. United States, 1 Pin•• 73; Slate v. Marvin, 35' ■N. II. SS; but see Broussard v. Mallet, 8 La. (N. S.) S69) ; nor is a Bible entry superior to a witness’s recollection (Berry v. Waring, S Harr. & Gill 103; Taylor v. Hawkins, 1 McCord 163; Clements v. Hunt, 1 Jones 400; Sharp v. Johnson, SS Ark. 79). A foreign certificate or certified copy of a registry must be accompanied with proof of the statute of the country, showing that such registry is required to be kept &c. {!' Bish. Mar. & Biv. $$ Jft5-lfi8 ; Milford v. Worcester, 7 Mass. 57; Smith v. Smith, 1 Tex. 6S1; Niles v. Sprague, 13 'Iowa 198 ; Slate v. Booris, 40 Conn. '145; Stark. Evid. (9th Am. ed.) *30S ; Com. v. Morris, 1 Gush. 391; Stanglein v. State, 17 Ohio St. 458 ; Bird v. Corn., SI Gratt. 800 ; Slate v. Horn,, 43 Vt. SO; Morrissey v. Wiggins Ferry'Co., 41 Mo. 5S1; Hutchins v. Kim'mell, 31 Mich. 1S6 ; Leader v. Barry, 1 Esp. 858 ; Booker v. Booker, 8 Sw~ A Tr. 5S6).</p> <p>The presumption of marriage arising from cohabitation, reputation &c., is destroyed by evidence that no marriage, in fact, ever was solemnized (Port v. Port, 70 III. 484; 1 Bish. Mar. & Div. § 440; Weather-ford v. Weatherford, 80 Ala. 548 ; Clayton v. Wardell, 5 Bari. 814, 4 TV- F. 830 ; Archer v. Haithcock, 6 Jones 4%7 ; People v. Brown, 34 Mich. 839 ; Meg. v. Millis, 10 Cl. & Fin. 534 i Shafher v. State., 80 Ohio 1; Gaines v. New Orleans, 6 Wall. 648; Meg. v. Allen, D. M. [1 C. C.) 367; Jones V. Jones, 88 Ark. 19 ; Myatt v. Myait, 44 Til. If!3; Nossaman v. Nossaman, 4 Ind. 648 ; Durand v. Durand, 8 Sweeney 315).</p> <p>In Wilkinson v.. Payne, 4 T. M. 468, an infant was married when he had neither parents nor guardian to consent to the ceremony. When he became of age his wife was upon her death-bed, and died three weeks afterward, but on proof that the wife’s father and family had always recognized them as husband and wife, it was left to the jury to presume a legal marriage after the husband was of age, and they did so; see Smith v. Huson, 1 Phillim. 886.</p> <p>In Fenton v. Meed, 4 Johns. 58, the plaintiff was married to Reed in 1792, under the supposition that her former husband, who was absent, was dead. He returned, however, and lived until June, 1800, but plaintiff continued cohabiting with Reed as her husband until his death in 1806, and although no marriage ceremony was proved to have taken place between her and Reed after the death of Her first husband, yet the court below was held to have been authorized to presume a marriage subsequent to that time. Also, Jackson v. Claw, 18 Johns. 346; Mose v. Clark, 8 Paige 574; Ttex v. Twining, 8 B. & Aid. 387; Blanchard v. Lambert, 43 Iowa 888; Carroll v. Carroll, 80 Tex. 731; 1 Bish. Mar. & Div. $ 508; Senser v. Bower, 1 Pen. & Watts 450; Donnelly v. Donnelly, 8 B. Mon. 118; Woods v. Woods, 2 Bay 476; Hull v. Rawls, 27 Miss. 471 ; Caujolle v. Ferrie, 23 N. 7.-90, 18 Wall. 465; Johnson v. Johnson, 1 Cold. 626¡ Spears v. Burton, 31 Miss. 547; -Wilkie v. Collins, 48 Miss. 496; Canady v. George, 6 Rich. Eq. 108; Navarro's Case, 24 Da. An. 298; but see Cram v. Burnham, 5 Me. 213¡.Duncan v. Duncan,10 Ohio St. 181; Brower v. Bowers, 1 Abb. App. Dec. 214-</p> <p>In Starr v. Peck, 1 Hill 270, both parents, Samuel and Sarah, were dead, and on the question of the legitimacy of their first-born child, Abby, it appeared that she was born ten days before the marriage ceremony. Samuel had visited Sarah in the way of courtship for about a year previous to the marriage. He followed the sea, and was at sea when Abby was born. Sarah had announced their engagement before he went to sea. They were married shortly after his return, he having been unexpectedly detained. Abby lived with them until her marriage,- and was always treated by them as their legitimate child.—Held, that a judge’s charge, leaving to the jury the question whether there had not been a marriage in fact before the ceremony, and before Samuel’s last voyage, was correct. See Cheney v. Arnold, 15 N. 7. 345 ; Cheseldine v. Brewer, 1 Harr. & McH. 152; Beverson's Case, 47 Cal. 621.</p> <p>In Viall v. Smith, 6 R. I. 417, both parents were dead, and also their daughter Louisa, whose illegitimacy was asserted, and whose share of her father’s estate her children claimed by descent. The town clerk had entered on the registry: “ Ebenezer Smith and Martha Townsend were married Sept. 4, A. D. 1800, by Rev. Samuel Watson. Louisa, their daughter, was horn Saturday, Aug. 23, 1800.”—Held, that since the registry appeared to have been made from the town clerk’s own knowledge, or on information, and not in pursuance of the statute, it was not conclusive as to Louisa’s birth ; nor were her father’s declarations “ that unless he made a will, Louisa could get nothing bylaw,” conclusive; and her legitimacy was nevertheless sustained, by proof that Louisa was brought up in her father’s family, and always spokeix of by him and the other member's of his family as his daughter. See Hernnan v. Mason, 87 Wig. 278.</p> <p>In Blackburn v. Crawfords, 8 Wall. 175, the statutes of Maryland contained no provision requiring a registry of baptisms to be kept. A priest, after baptizing a child, made the following entry on the church registry : “1837, July 30, George Thomas, son of Thomas B. Crawford and Elizabeth Taylor, his wife, born 7th of September, 1836.” “ Sponsors, John and Sarah Evans.”—Held, admissible to prove the fact of the baptism, but not that Elizabeth Taylor was Crawford’s wife at that time.</p> <p>In Piers v. Piers, 2 H. of L. Cas. SSI, S6S, a woman was, shortly before her confinement, married to the father of her child, the ceremony being performed in a private house, for which marriage no license could afterwards be found. After the birth of her child, the parents were legally married.—Held, not to bastardize such child.</p> <p>In Baby v. Batiste, 27 Miss. 731, A. claimed to be the heir and son of A. K., but it was shown that A. was a mulatto, his father being a negro, and his mother having married A. K. after his birth, and that A. never claimed any rights as a white man.—Held, that the subsequent marriage of his mother to A. K., and their recognition of him as their son, did not render him A. K.’s heir.</p> <p>In United States v. Sham, 5 Oranch C. G. 867, an instruction to a jury that “if they believed that O. T. married the mother of Mary Ann twelve months after her birth, and maintained and recognized her in every way as his own child, it was evidence from which they might infer that 0. T. was her father, and so within the Maryland statute ”—• was held correct. Also, Jones v. Jones, J¡S Md.</p> <p>In Cooke v. Lloyd, Peake’s Evid. App. xxi, the plaintiff, Joseph, a second son, proved that several witnesses declared his parents were not married until 1759 ; that his father called his children born before 1759, bastards ; that on his death-bed he pointed to plaintiff and said be was his heir; that the registry showed the parents’marriage in 1759, previous to which defendant’s ancestor, Philip, had been born ; that the mother testified that although she went to London for the purpose of being married in 1747, yet she never was actually married until 1759; that Philip, who was dead, had himself declared that he was a bastard. The defendant proved that banns for the parents were published in 1747, and that the banns being forbidden by the father’s mother, they went to London for the purpose (as they said) of being married in the Fleet, and, on their return, announced that they had been married ; that they lived together as husband and wife, and were visited as such, even by the father’s mother; that in a litigation they both made affidavit that they had been married in 1747, by one Dare, and that the subsequent marriage in 1759 was only precautionary; he offered the Fleet books in evidence, wherein this marriage was entered as of May 28,1747, but the books were excluded by the judge, as was also the evidence of a witness, who said that he had examined the books in 1761, then in the possession of a man claiming to be Dare’s clerk. The jury found for the defendant. See Patrickson v. Patrickson, Ij. R. (7 P. & D.) 86; Lyle v. Elwood, L. R. (19 Eq.) 98; Pina v. Peck, 31 (Jal. 869; Com. v. Littlejohn, 16 Mass. 163.</p> <p>In Berkeley Peerage Case, If Camp. JfOl, an entry in a family Bible by a father that N. was his eldest son. born in lawful wedlock from J., his wife, on the 1st day of May, 1778, signed by the father, together with proof of such father's declarations that he made such entry for the express purpose of establishing the legitimacy and the time of the birth of his eldest son N., in case the same should ever be called in question after his death—was held admissible to prove N.’s legitimacy, but the circumstances excited suspicion on account of their particularity.</p> <p>If the marriage of the parents after the birth of their child legitimates such child at their domicile, it will be recognized as legitimate everywhere. Story Confl. of Laws § 98; Wharton Confl. of Laws ¡¡ 2Jfi ; Smith v. Kelly, 28 Miss. 167.—Rep.</p>

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

<p>That a testator’s wife urged upon him the propriety of leaving his property to her, does not constitute undue influence to vitiate the will.</p>

<p>1. The orphans court is not limited to a single adjournment of the hearing of a rule to show cause why lands should not be sold to pay debts; and an order for such adjournment may, on due notice, be revoked, and the hearing brought on.</p> <p>2. General creditors of an estate are not “aggrieved,” within the meaning of the constitution, and hence have no right to appeal from an order of the orphans court directing lands to be sold to pay debts of such estate.</p> <p>Note.—The general rule is, that a person cannot present or join in a petition of appeal, although he may have an interest in the question, unless he was (or represents) a party in the matter in the court below (Ludlow v. Greenhouse, 1 Bligh 18; Williams v. Gwyn, 2 Saitnd. 46a;' South v. Hay, .3 Bibb 528; Miller v. Keith, 26 Miss. 166; Richardson v. Richardson, 2 Root 219; Swan v. Wheeler, 4 Pay 187; Elcan v. Lancasteñan, 2 Patt. & Heath 53; Payne v. Bullard, 23 Miss. 88; Montgomery v. Leavenworth, 2 Cal. 57. See Foster v. Tyler, 7 Paige 43; Fuller v. The Unknown Owner, 9 Iowa 480); and the party’s interest must appear on the papers, unless waived [Leming's Appeal, 84 Conn. 201; Gardner v.. Gardner, 5 Paige 170; State v. Jones, 11 Iowa 11; I/yle v. Bradford, 7 Mon. Ill); and also be proved in the lower court [Livingston v. White, 2 La. An. 902; Phillips v. Shelton, 6 Iowa 545; Ilyslop v. Powers, 9 Paige 822. See Warnock v. Watson, 25 Ga. 467); sometimes subsequent parties may appeal under statutory provisions [Robinson v. Vanderburg, 87 Ind. 333; Jopp v. Wood, S3 Beav. 372); or by permission of the court [Berry v. Ait’y-Gen., 2 McN. & G. 16; Gwynne v. Edwards, 9 Beav. 22; Parmiter v. Parmiter, 2 LeG. F. & J. 526; Sage v. Central R. R. Co., 98 U. S. 4^-2).</p> <p>Among parties “aggrieved,” is an attorney who appeals from the amount allowed him by a receiver, for services [Adams v. Woods, 8 Cal. 806; but see McAllister's Appeal, 59 Pa. St. 204; Wilcox v. Smith, 26 Barb. 316); and judgment creditors of one partner made parties below, in a suit involving the partnership assets, by one partner {Jones v. Thompson, IS Cal. 191); creditors of a corporation holding a set-off against its claim (Jackson v. Receivers, 1 Stock. S06); a foreign administrator, on the appointment of one here {Smith v. Sherman, 1¡, Cush. J¡08) ; an administrator, on a claim allowed by him, to which he afterwards discovered an objection (Harper v. Stroud, 1¡,1 Tex. 367).</p> <p>The following are not “aggrieved”: One claiming by title paramount (Swackhamer v. Kline, 10 C. E. Gr. 60S; Raleigh v. Rogers, Id. 506; Shields v. Ashley, 16 Mo. Jftl) ; a sheriff holding a fi. fa. against a defendant who possessed no leviable property, although he paid the judgment {Siler v. Blake, 3 Dev. & Bat. 93) ; a master in chancery, on an order appointing another as commissioner to sell lands {Green v. Harrison, 6 Jones Eq. S5S) ; a debtor to the estate of a decedent (Swan v. Picquet. 3 Pick. llfS); or a garnishee of such debtor ( Veazie. Bank v. Young, 53 Me. 555); the trustees of a fund bequeathed for the benefit of a minor, on a decree appointing its guardian (Deering v. Adams, 81+ Me. Jfl); the assignee of a voluntary grantee in a transfer to defraud creditors {Hall v. Jack, 3S Md. S53); a donee causa mortis, on a decree charging the administrator with the chattels, and ordering their distribution {Lewis v. Bolitho, 6 Gray 137); owners of lands within the lines marked out by a company for drainage (Combs v. Jefferson Co., 3 Mete. (Ey.) 73) ; heirs at law after the probate of a will disposing of the entire estate, on a decree as to the payment of a legacy (Labar v. Nichols, 33 Mich. 310); an heir attempting to intervene after an allotment of dower (Lowery v. Lowery, 61; N. C. 110); a purchaser at a partition sale, on a subsequent application by the heirs to set aside the order of sale (Hoard v. 'Hoard, 41 Ala. 590. See Chamberlain v. Lamed, 5 Stew. 397) ; a surety on a replevin or administrator’s bond (Grites v. Littleton, 33 Iowa $05; Tuxbury’s Appeal, 67 Me. $67. See Farrar v. Parker, 3 Allen 556; Porter v. Burton, 10 Heisk. 581;).</p> <p>Under what circumstances a general creditor has been allowed to prosecute an appeal, see Hungerford’s Case, 1 Sah. & Lef. 409 ; Earl of Winehelsea v. tiaretty, 1 Myl. & E. 253; Pearson v. Barrington, 3$ Ala. 237, $76; Anonymous, 18 Ább. Pr. 87; Higbie v. Westlake, 11; N. ~T. 381; Glisson v. Carter, 38 Qa: 518; Willamonicz v. Strong, 8 Ark. 1;67; and where that right has been denied, Caldwell v. Einkhead, 1 B. Mon. 2$~ Phillips v. Shelton, 6 Iowa 5If} ; Henry v. Estey, 13 Gray 836. See, also, Bell v. Ayres, $1; Ind.. 92; Malone v. Gorman,. 10 La. An. 81;.</p> <p>Lien creditors may appeal. Watson v. Willard, 9 Pa. St. 89; Barker v. Barker, 39 N. H. 408; Jones v. Thompson, 1$ Cal. 191. See Evennan’s Appeal, 67 Pa. St. 885.—Rep.</p>

<p>On a widow’s petition, in the prerogative court, for commissioners to set off her dower, objections amounting to an equitable bar, which the widow denies, will not be considered.</p>

<p>1. If a court is incidentally informed, or has reason to believe, that its process has not been properly executed, and that injustice is likely to ensue, it is proper for it, of its own motion, to interfere temporarily so that the matter can be inquired into.</p> <p>2. When a sheriff, without instructions, adjourned the sale of valuable property from week to week in his office, and then sold without any further advertisement, it appearing that the owner of the property sold had been misled by such course, and was unaware of the sale,— Held, that it was proper to set such sale aside upon equitable terms.</p> <p>3. The neglects of a receiver appointed by the court will not be regarded, in all cases, as the neglects of the parties whose interests he has in charge.</p> <p>Note.—In Patten v. Stewart, $6 Pad. 395, a sale of lands, after an injunction staying such sale had been dissolved, on a day to which it had been orally adjourned pending such injunction, was held void. ;See, also, Montgomery v. Barrow, 19 La. An. 169; Williams v. Barlow, Jft Ha. 530.—Rep</p>

Erie Railway Co., 3 Stew. 604. This was a suit against the defendant, as the receiver of the Erie Railway, for damages alleged to have been sustained by the plaintiff by reason of the negligepce of the employes of the receiver in the management of a train of cars. The trial took place before the vice-chancellor, who found against the plaintiff. This decision was appealed from.

<p>On appeal from a decree of the vice-chancellor, reported-in Jones v. Knauss, 4 Stew. 609.</p>

<p>A bill is not demurrable if it contains equitable merits, although it be admitted that some of the other circumstances stated cannot be of avail.</p>

R. Co. v. Society &c., 3 Stew. 145. The Society for Establishing Useful Manufactures, the appellant ip this court and the defendant in the court below, was incorporated by the legislature of this state by an act passed in the year 1791.

<p>On appeal from a decree of the vice-chancellor, reported in Mulock v. Mulock, 4 Stew. 594•</p>

<p>Under the charter of the New Egypt and Farmingdale Railroad Company (P. L. 1869 p. 172), a portion of certain mortgaged lands were condemned for the company’s use, in proceedings of which the company had given notice to the mortgagors only,—Held, that the mortgagee was entitled in equity to have the sum so awarded for the land and damages, applied towards the payment of his debt, and the rest of the mortgaged premises, subject to the rights of the railroad company, sold for the payment of the balance.</p>

The appeals in this cause bring up for review two decrees of the court of chancery, one directing the specific performance of a contract for the sale of land, and the other dismissing a bill in the nature of a cross-bill, which had been filed for the rescission of the same contract. The opinion of the chancellor will be found in Hughes v. Young, 4 Stew. 60.

<p>Although a municipal charter did not expressly declare that taxes on lands within the city limits should be paramount to any lien thereon, yet taxes assessed subsequently to the making and recording of a mortgage on such lands, were held to be a prior lien, because such lands were, by the charter, to be assessed at their full and fair value; and mortgages thereon were not taxable in the hands of residents of this state; and a mortgagee or any person interested might redeem such premises after a tax sale; and that, notwithstanding the charter required the tax sale purchaser to give notice to the owner, after such purchase, and contained no express direction as to such notice being given to the mortgagee.</p>

<p>A testator, by the third item in his will, gave legacies to his three daughters, and then gave to his two sons “all the rest and residue of my property, including the farm on which I now live, * * * subject, nevertheless, to certain payments to be made by them, hereinafter mentioned," and then gave an annuity and another legacy.— Held, that the daughters’ legacies are not chargeable on the residue, because (1) by the second item, the testator gave to his wife the use of so much of his homestead and farm as she desired, together with his sons, thereby excluding the idea that he contemplated a possible sale of such farm in order to satisfy these legacies. (2) That expressly charging the farm with certain payments thereinafter specified, excludes those preceding. (3) That the proofs do not establish satisfactorily the insufficiency of the personal estate to discharge the legacies. (4) That the words “including the farm &c.,” although incorporated with the gift of the residue, constitute a specific devise, additional to the residue, and hence exonerated.</p>

<p>Evidence newly discovered, relevant and material, which, appears not to have been undiscoyered through the appellants’ laches or negligence, consisting of a letter and also a written agreement in respondents’ possession during the trial at law, constitutes ground sufficient for staying proceedings on the judgment obtained at law, and for ordering a retrial.</p> <p>Note.—No brief on the part of respondents in this case was furnished to the reporter.—Rep.</p>

<p>That a mortgage was given for the temporary accommodation of the mortgagee ; that he intended to use it only as collateral security, and that he falsely represented himself then to be solvent, are no defence to such mortgage in the hands of a Iona fide assignee, for value, without notice, who holds it under an absolute assignment.</p>

<p>Bill to foreclose. Motion to set aside decree for deficiency against T. Maxwell Reilly. On petition and affidavits.</p>

<p>1. That a husband gambles and does not properly support his wife, in consequence of which she leaves him, does not constitute desertion by him on which to decree a divorce.</p> <p>2. A divorce will not be granted on the uncorroborated testimony of the petitioner.</p>

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

<p>On petition for alimony &c., after decree of divorce a vinculo. Motion to dismiss petition after settlement.</p>

<p>Bill to foreclose. On petition for a receiver.</p>

<p>Bill for relief. Motion for an injunction. On order to show canse. On bill, answer and affidavits.</p>

<p>Bill for construction of devise and relief in connection therewith. On final hearing, on pleadings and proofs.</p>

<p>Bill for injunction and cross-bill. On final hearing on pleadings and proofs. Submission on briefs of counsel.</p>

<p>1. A mere reference, in an answer, to an agreement for usury, that “ by said corrupt and usurious contract [the mortgagee] was to receive and has already received and taken more than seven dollars for the forbearance of one hundred dollars a year,” no agreement whatever being set out, is insufficient.</p> <p>2. The rule that where mortgaged lands are sold in parcels, they are to be resorted to in the inverse order of their sale to satisfy such mortgage, applied, on a foreclosure of three mortgages covering the same premises, the third of which covered also another tract of land.</p>

<p>A defendant dug a ditch on his own land to drain a marl pit thereon. Afterwards, and within twelve years, the complainants’ ancestor extended a ditch, used to drain his land through the lands of a third person (S.), so as to connect it with defendant’s ditch, and, in digging it, followed a natural hollow on S.’s lands.—Held, that com-. plainants acquired no easement thereby over defendant’s lands.</p>

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

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

<p>On application by petition to establish the rights of parties.</p>

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

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

<p>A bill by the widow and heirs at law of a vendee, to compel the conveyance of woodlands, paid for by such vendee, was filed against the surviving executor of his co-vendee, in whose name the title was taken in trust, such executor having a naked power of sale. On demurrer,— Held,</p> <p>(1) That the personal representative of the vendee was not a necessary party complainant, because all the purchase-money had been paid.</p> <p>(2) That the widow of the vendee was a necessary party complainant, because she was entitled to dower in her husband’s equitable estate in the lands, at the time of his death.</p> <p>(3) That the lands, not having been devised, descended to the covendee’s heirs at law, who hold it subject to the power of sale given to the executor, and were, therefore, necessary parties defendant.</p> <p>(4) That the vendee, having paid one-half of the purchase-money, having been in possession for more than forty years under a voluntary partition, and the trust of his co-vendee being shown, the complainants are entitled to relief.</p>

<p>Bill for divorce a mensa et thoro. On final hearing on pleadings and proofs.</p>

<p>In a suit under the quia timet act (Rev. p. 1189), the pleadings did not allege that the proceedings under which the adverse title was claimed were taken under a void law, but merely that every step' of those pro-eeedings was without warrant "of law. Belief was denied on the ground that it did not appear that the complainants had not a complete and adequate remedy at law.</p>

<p>Bill for divorce.</p>

<p>On order to show cause.</p>

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

<p>In May, 1870, a husband was divorced from his wife by the decree of a court of competent jurisdiction of the state of Illinois. The certificate of that decree states that the wife was duly served with process. The wife now denies (in her testimony) that she received the notice of the suit, which was sent to her address, but she does not attack the bona files or validity of the decree. In December, 1871, the husband married again, and has now living two children, the issue of the last marriage. Before his divorce, he gave to the first wife a house in this state, and ever since then has voluntarily provided for_ her and her children. In January, 1878, he dismissed two of her sons from his employ, and she admits that, apprehending that he was about to cease supporting her and her children, she filed a bill for divorce, alleging adultery with his second wife.—Held, that the divorce must be denied, on the ground of acquiescence and connivance.</p> <p>Note.—The following cases show what delay or connivance, either alone or in connection with other circumstances, has been held to affect the petitioner’s right to a divorce:</p> <p>In Morton v. Seton, 3 Phillim. lift, a man, forty-five years of age, who alleged a marriage seven years before, was not allowed to set up his own impotence.</p> <p>In Briggs v. Morgan, 3 Phillim. 325, a delay of sixteen months after marriage was deemed fatal to the application of a man, on account of his wife’s malformation.</p> <p>In Pollard v. Wybourn, 1 Hagg. 725, the marriage was celebrated in 1815, and the parties lived together, but not continuously, as he was in the army, until 1826, when a divorce, on the ground of the husband’s impotence, was decreed.</p> <p>In Mortimer v. Mortimer, 2 Hagg. 310, a wife, in 1811, supposing herself to be in articulo mortis, confessed to her husband and his sister that she had committed adultery in 1807; she afterwards recovered and was separated from her husband, living with her father, on an allowance made by her husband. In a suit brought in 1816 by the wife, for a restoration of her conjugal rights, the husband pleaded her confession, and that he had delayed a suit against her for a divorce because he had no evidence of her adultery, other than such confessions,—• Held, that they were admissible in evidence, although she had after-wards retracted them.</p> <p>In Guest v. Shepler, % Hagg. SSI, a delay of seven years defeated a husband’s petition for divorce, on account of malformation in his wife.</p> <p>In B. v. B., S Robertson 680, S8 Eng. L. & Eq. 96, a delay of five years, the husband having resided a considerable part of the time in India, was held not alone fatal to his suit, founded on his- wife’s malformation.</p> <p>In Anonymous, Deane & Sw. S96, a delay from 1840 to 1855, on the husband’s part, in a suit founded on his wife’s malformation, was, inter alia, held explainable by his statement that he had been professionally informed that it was not incurable.</p> <p>In Heavisides’ Case, IS Cl. & Fin. SSS, a husband’s delay of five years was deemed excusable, by reason of his wife’s elopement, adultery and absence in another country, and his own affliction therefrom and consequent inability to attend to business. See, especially, a collection of many eases in a note to this one.</p> <p>In Brooks’s Case, lH.of D. .Cas. 169, a lapse of eight years from the discovery of a wife’s adultery until the filing of her husband’s petition, was considered sufficiently accounted for by his poverty.</p> <p>In Matthews v. Matthews, 1 Sw. & Trist. 1¡S9, A. was married in 1844, and lived with her husband until 1853, when a deed of separation, reciting mutual differences &o., was executed, and cohabitation ceased. Her petition, filed in 1856, for a judicial separation, on the ground of cruelty, was dismissed, because of the lapse of time and deed of separation.</p> <p>In Pellew v. Pellew, 1 Sw. & Trist. 66S, the marriage took place in 1851, and the parties lived together until 1853, when the husband was ordered to China, in the service. He returned in 1854, but in October of that year his wife eloped. In December, 1854, he obtained a divorce a mensa, and steps were afterwards taken to obtain a divorce bill in parliament, but were discontinued because the husband was abroad, and no suit for crim. con. could be brought.—Held, that a suit in 1859 was not too late, under the “unreasonable delay’ clause of the English statute.</p> <p>In Tottemache v. Tollemacke, 1 Sw. & Trist. 667, an Englishman’s petition averred a marriage with a Scotch woman at Gretna Green, August 6th, 1837, and also in England, August 12th, 1837, followed by cohabitation and issue, until April, 1841, when the adultery of the wife in Glasgow and Edinburgh was alleged, followed by the wife’s marriage with one J. P., at Glasgow, in July, 1841, with whom she lived until his death, in June, 1855. The petition further alleged adultery with the said J. P., and a Scotch divorce between the petitioner and his wife in July, 1841.—Held, that petitioner’s belief, founded on professional advice, that the Scotch divorce was valid everywhere, excused his delay until 1855, when he was informed otherwise and instituted this suit.</p> <p>In H. v. G., 1 Sw. & Trist. 606, a delay of the wife from 1834 to 1858, the parties having been separated since 1838, although she had importuned her husband to receive her again, was deemed fatal to her suit for divorce, on account of his impotence.</p> <p>In Thomas v. Thomas, 2 Sw. & Trist. 113, a husband and wife executed a deed of separation in 1854, which recited, among other tilings, that the husband had for some months been living with a Miss H., with a reference to articles of agreement as to certain property to which all three had been parties. A suit brought by the wife in 1860, for judicial separation, on the ground of the husband’s adultery with Miss H. in 1859-60, was dismissed, because her executing the deed of separation was virtually a consent to a continuance of such cohabitation, citing Barker v. Barker, 8 Addams 885.</p> <p>In Matthews v. Matthews, S Sw. & Trist. 161, lapse of time (seven years) and a deed of separation on account of the husband’s drunkenness and cruelty, were held good grounds to dismiss a petition for divorce sought because of such cruelty.</p> <p>In E. v. 21, 8 Sw. & Trist. 818, a husband’s delay of eleven years was accounted for by his wife’s delicate health and condition, consequent on a surgical operation for malformation, which was not successful.</p> <p>In Boulting v. Boulting, 3 Sw. & Trist. 889, A. married B. in 1833, and separated from him in 1835 under a separation deed, B. allowing her a certain sum. In 1842 B. commenced an adulterous cohabitation with C., which continued until the time of the trial, and A. was aware of it from 1843. Her petition in 1863 was dismissed for delay and connivance.</p> <p>In Smallwood v. Smallwood. 8 Sw. & Trist. 397, lapse of time between 1848 and 1861 was not considered, in itself, as defeating an application for a divorce on account of cruelty in 1848.</p> <p>In Harrison v. Harrison, 8 Sw. & Trist. 868, a wife, in 1844, left her husband, who had been guilty of cruelty and adultery; no subsequent act of adultery was proved. Until 1862 the wife had been without means to sue for a divorce.—Held, that her delay was not unreasonable.</p> <p>In M. v.B.,3 Sw. & Trist. 550, M. married B. in 1853, and occupied the same bed with h'm until 1855, when she took another room, at his request, and left his house in 1863. To her petition filed on account of B.’s impotence,—Held, that the delay and her own statement that she never thought of instituting the suit, except to silence reports in circulation that she had left B.’s house because she was insane, were grounds to dismiss it.</p> <p>In Castledon v. Castledon, 9 H. of L. Cas. 186, the petitioner was married in 1834, and lived with her husband until 1838, when she returned to her father’s house, where, during a surgical operation, the surgeon found so much difficulty in making an examination, that he asked her whether her marriage had been consummatéd, and testified that he believed she replied that, to the best of her knowledge, it had not. There was no impotence on her part. Down to 1854 she desired to live again with her husband, and then, he still refusing, proceedings were begun to compel him to support her. He then made her an allowance of £80 per annum, which was paid until 1858, when he notified her that it must be reduced to £45, whereupon her petition was filed, based on his impotence, and at the hearing was dismissed and that order affirmed.</p> <p>In Ross v. Ross, L. R. (1 P. & D.) 781¡,, the parties were married in 1846, and separated by the ordinary deed in 1866, the wife then charging her husband with adultery with one M. S., formerly their domestic, which she had for some time suspected, but which he always denied.—• Held, that there was no proof of connivance to defeat her right.</p> <p>In Newman v. Newman, L. R. P. & D.) 67, a wife separated from her husband in 1850, in consequence of his incestuous adultery with her sister, on which ground she presented her petition in 1868, explaining, as the cause of her delay, that her mother was very anxious to avoid a public exposure of the scandal, and that she yielded to her mother’s entreaties and forbore to take proceedings until her mother’s death.—Held, that although her delay was unreasonable, it was not of such a character as to deprive her of her relief.</p> <p>In Wilson v. Wilson, L. if. (2 P. & D.) ^35, the adultery was committed in 1866, and the suit instituted in 1871, the petitioner being a material witness on that point. The inadmissibility of his evidence until after August, 1869 (when a general statute making such testimony competent was passed), and his want of means, were held a sufficient explanation of his delay.</p> <p>In Short v. Short, L. Jf. (3 P. & H.) 193, a husband discovered his wife in adultery in September, 1859, and separated from her, but presented no petition until July, 1873, when he admitted that he had about £600 in money and some other property.—Held, that want of means was not shown as an excuse for his delay.</p> <p>In Cummins v. Cummins, 2 McCart. 138, a wife’s delay of nine years in filing her bill, after discovering her husband’s adultery, and their subsequent separation, was so explained as not to invalidate her application.</p> <p>In Williamson v. Williamson, 1 Johns. Ch. 488, a husband had been absent in a foreign country, and his wife, supposing him to be dead, married again; he afterwards returned, and finding his wife married again, without taking any steps to obtain a divorce, he went abroad and continued absent for twenty years; then he returned and applied for a divorce, which was denied on the ground of delay, although the counsel of both parties consented to a decree.</p> <p>In Valleau v. Valleau, 6 Paige 207, the husband, a few months after his marriage, abandoned his wife and left the state, and the wife, after seven years, married again, and her second husband lived about five years thereafter. A suit brought four years afterward for divorce, by the first husband, for his wife’s adultery with the second husband, was dismissed.</p> <p>In Reese v. Reese, 23 Ala. 785, living with her husband for two years after the cruelty complained of, was held not to estop a wife’s right to a divorce therefor.</p> <p>In Smedley v. Smedley, SO Ala. 714, statute requiring a suit for divorce, on the ground of adultery, to be brought within one year after the discovery of the act charged, was construed not to include acts of cruelty, or an application for a divorce on that ground; and a divorce was granted for cruelty beginning, nearly six years before and continuing until the bill was filed.</p> <p>In Schonwald v. Schonwald, Phil. [N. O.) Eq. 215, the petitioner was married to her husband in 1843, and lived with him until about 1850, when he became so cruel that she was compelled to separate from him and to accept an allowance, in order to retain the custody of her child; and she removed from the state. About 1851 respondent married again, and the petition was filed in 1857.—Held, that the fact of petitioner being a non-resident and a pauper, excused her delay.</p> <p>In Whittington v. Whittington, 2 Dev. & Dai. 61¡,, the parties were married in 1823, and the husband abandoned his wife shortly afterwards. She led a profligate life in the neighborhood of her husband’s home down to 1883, when his bill was filed for adultery.—Held, that his right had been lost by laches. See, also, Little v. Little, 63 N. 0. 22.</p> <p>In Rawdon v. Rawdon, 28 Ala. 565, a lapse of twenty-two years after a wife’s discovery of her husband’s alleged insanity, was deemed fatal to her application for a divorce on that ground.</p> <p>In Secor v. Secor, 1 McArthur 630, a divorce, on the ground of the wife’s insanity before her marriage, was refused where more than thirty years had elapsed since the marriage, children had been born and matured, and the parties had agreed to live separate.</p> <p>In McCafferty v. McGafferty, 8 Black/. 218, a statute required that a divorce should be denied, if the suit should not have been brought within two years after the party complaining of the adultery discovered it.—Held, that the complainant might prove the offence, although he had known of its existence more than two years before suit was brought, and then the defendant might prove the scienter, in defence.</p> <p>In Cochran v. Gochran, 35 Iowa 1/77, the parties were married in 1846, and lived together until 1858, when a criminal intimacy sprang up between the husband and an unmarried woman, who often came to the house. This continued about three years, with the wife’s knowledge and connivance, when he abandoned his family, in 1861, and his wife obtained a divorce in 1862, therefor, whereupon he married his paramour in another state, where they resided. The divorce was annulled for want of service on him, and another suit instituted.— Held, that her knowledge, and having given her husband and his paramour opportunity for intercourse, were no defence.</p> <p>In Butcher v. Butcher, 89 Wis. 661, the statute required an action for divorce to be brought within three years after the discovery by the plaintiff of tbe offence charged.—Held, that where the plaintiff had knowledge that the defendant was living in open and continuous adultery more than three years before suit was brought, such suit was barred, although the adultery was continued down to the time of beginning the suit.</p> <p>In Fellows v. Fellows, 8 N. H. 160, a delay of eight years after the cruelty for which the divorce was sought, was held too long to justify relief, without explanation.</p> <p>In Myers v. Myers, 1^1 Barb. 114, the statute required suits to be brought within five years after the discovery of the offence by the plaintiff; and a rule required him to aver that the adultery charged was without his consent, connivance or privity.—Held, that an allegation that five years had not elapsed since he discovered the fact that such adultery had been committed by the defendant, without his consent, connivance or procurement, was insufficient.</p> <p>In Peipho v. Peipho, 88 III. 188, the complainant sought a divorce thirteen years after his marriage, and after cohabiting nearly eight years with his wife, with full knowledge and without complaint as to her impotency.—Held, that mere motives of delicacy were not enough to explain such long-continued acquiescence. See Merrill v. Merrill, 123 Mass, 228.</p> <p>In Charraud v. Charraud, 1 N. Y. Leg. Obs. ISlf, a husband, who 'entered into articles of separation, and gave his wife a mortgage to secure her allowance, with knowledge of his wife’s having previously committed adultery, was held liable thereon. See Lurant v. Durant, 1 Hagg. 733.</p> <p>In Chew v. Chew, 38 Iowa 1/.06, cross-petitions for divorce were filed, that of the wife for cruelty, that of the husband because his wife had a former husband living. By an agreement, both petitions were to be dismissed and the husband was to convey certain lands to his wife. He made the conveyance, but did not dismiss his petition, and obtained a divorce on the ground alleged.—Held, that he could not have the deed set aside, after the divorce, on the ground that his wife had a former husband living when it was executed, because he then knew that fact.</p> <p>In Wright v. Miller, 1 Sana†. Oh. 103, 8 N. Y. 10, deeds were made to defraud a wife in 1813, and in 1820, by articles of separation, an annuity was given to the wife by the husband, which was regularly, paid to her until 1840. In 1822 her husband obtained a divorce for her adultery.— Held, that her annuity was not affected by the divorce. Also, Charles-worth v. Holt, L. H. (9 Exch.) 38.</p> <p>Since the legal relation of husband and wife is not changed by merely filing a libel for divorce, or by any other steps preliminary to a decree {Dwelly v. Dwelly, Me. 377), the marriage of the petitioner for a divorce on account of his wife’s adultery, pending her appeal from a decree of divorce, deprives him of any benefit therefrom. Stanford v. Stanford, 1 Edw. Ch. 317; Stephens v. Stephens, 61 Ind. 61ft; Goad v. Coad, 1ft Wis. 392 ; Moors v. Moors, 121 Mass. 232; Meyar v. Meyar, 3 Mete. {Kyi) 298; Garner v. Garner, 38 Ind. 139; Galbreaih v. Davidson, 25 Ark. IftO; 2 Bish. § 751.</p> <p>An agreement between husband and wife, that one will not oppose or will discontinue a divorce applied for by the other, is void. 2 Bish. Mar. & Div. 235-239. Also, Sampson v. Gresson, 6 Phila. 229; Kilborn v. Field, 78 Pa. St. 194; Van Order v. Van Order, 8 Hun 315; Ghew v. Ghew, 38 Iowa 405; Adams v. Adams, 25 Minn. 72; McCarthy v. McCarthy, 36 Conn. 177; Stilson v. Stilson, 46 Conn. — See McAllister v. McAllister, 10 Heisk. 31ft.</p> <p>In Hoig v. Gordon, 17 Grant's Ch. 599, for ten years a wife concealed from the public her relation to her husband, and allowed him to live with another woman as his wife, under an assumed name, the real wife living in the neighborhood and receiving from them her own support.—Held, that she was estopped to claim dower in lands bought and sold during those ten years, by her husband and his supposed wife, to a bona fide purchaser.—Rep.</p>

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

<p>In March, 1869, a mutual insurance company insured a mill of Silvers and Woodward, for $3,000, for five years. In May, 1869, they, with the company’s consent, assigned the policy, by an absolute assignment (but, in fact, only as collateral security), to one Job as mortgagee. In April, 1871, Woodward conveyed his interest in the mill to Silvers, and orally assigned his interest in the policy, also. The mill was burnt down in April, 1872. Before Woodward’s transfer, the company paid dividends to Woodward and Silvers; after that, to Silvers alone. Proof of loss was made. May 2d, 1872, and Silvers assigned his interest in the policy to the complainant, May 13th, 1874. Job’s mortgage was paid in April, 1878, but he still retains possession of the policy, under his assignment. On general demurrer to the bill,—Held, (1) That it is not necessary to set out the by-laws of the company in the bill.</p> <p>(2) That an averment that the proof of loss was made by Silvers, without stating that it was certified by a magistrate, is sufficient.</p> <p>(3) That Silvers’s assignment of his interest in the policy after the loss, is not within the clause which requires the consent of the company to be obtained to the assignment of any policy.</p> <p>(4) That the fact that the absolute assignment to Job is still in existence, although his mortgage has been paid; that, as to Woodward’s assignment to Silvers, though it was merely oral and unaccompanied by express consent of the company, the company, by paying dividends to Silvers afterwards, waived their strict right to object to such assignment, and that, as alleged, the company, knowing of Woodward’s conveyance of the property to Silvers, led Silvers to believe that it regarded the policy as valid in his hands,—all combine to render the remedy at law inadequate and to give equity jurisdiction.</p>

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

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

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

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

<p>An intestate died without issue, and without having had either brother or sister of the whole or half-blood, and without leaving a wife or a father living. His mother survived him, and, by the statute, was entitled to his lands for life. His nearest relatives were two brothers of his father, a sister of his mother, and several children of deceased uncles and aunts.—Held, that the children of his two uncles and aunt took to the exclusion of the children of the uncles and aunts who were deceased when he died, although both of the uncles and also the aunt died during his mother’s life-time.</p> <p>Note.—That the civil law is resorted to in ascertaining the next of kin (Hillhouse v. Chester, 3 Day 166; Hayes v. Thomas, Breese 180; Martin-dale'V. Kendrick, 4 Greene {la.) 307: McDowell v. Addams, 45 Pa. St. 430; Bennett v. Toler, 16 Graft. 635; Cloud v. Bruce, 61 Ind. 171); unless the descent be changed by statute {Ramsey v. Ramsey, 7 Ind. 607; Walker v. Smith, 8 Yeates 480 ; Brenneman’s Appeal, 40 Pa. St. 115).</p> <p>A grandparent of the intestate takes to the exclusion of his uncles or aunts {McDowell v. Addams, 45 Pa. St. 450; Ryan v. Andrews, 31 Mich. 339 ; Martindale v. Kendrick, 4 Greene {la.) 807; Kelsey v. Hardy, 30 N. H. 4110; Kirkendall’s Case, J¡3 Wis. 167; Barger v. Hobbs, 67 III. 593; Bassil v. Loffer, 88 Iowa J¡51; Cables v. Prescott, 67 Me. 583; but see, Curren v. Taylor, 19 Ohio 86; Gillespie v. Foy, 5 Ired. Eq. 380; Ligón v. Fuqua, 6 Munf. 381; Bray v. Taylor, 7 Vr. 4P>) j and cousins of a near degree are preferred to those of a more remote {Schenck v. Vail, 9 C. E. Gr. 538; Stewart v. Collier, 8 Harr. & Johns. 389). An aunt or uncle of the intestate takes to the exclusion of the children of deceased aunts or uncles {Porter v. Askew, 11 Gill & Johns. 846; Levering v. Levering, 3 Md. Oh. 81, 3 Md. Oh. 365; Ellicott v. Ellicott, 3 Md. Oh. 1/.68 ; Parker v. Nims, 3 N. H. 460; Montgomery v. Pentriken, 39 Pa. St. 118; Shaffer v. Nail, 3 Brev. 160); and granduncles to the exclusion of the children and grandchildren of granduncles who died before the intestate (Olayton v. Drake, 17 Ohio St. 367. See Oresoe v. Laidley, 3 Binn. 379); and a great-grandmother to the exclusion of a great-uncle (Cloud v. Bruce, 61 Ind. 171).</p> <p>Such ancles and aunts inherit without distinction as to the blood of the ancestor from whom the estate descended (Deloney v. Walker, 9 Porter 407; Osborne v. Widenhouse, 3 Jones Eg. 338; Peacock v. Smart, 17 Mo. 403; Hickey v. Deloach, 1 How. [Miss.) S3 ; Danner v. Shissler, 31 Pa. St. 389; Miller's Case, 3 Lea (Tenn.) 54; Cozzens v. Joslin, 1 R. I. 133; Jones v. Barnett, SO Tex. 637; Beebe v. Griffin, 14 N. Y. 335; Ballard v. Hill, 3 Murph. 410; Murphy v. Henry, 35 Ind. 443); and the rule includes cousins (Redd v. Olopton, 17 Ga. 330. See Knapp v. Windsor, 6 Cush. 156); unless otherwise directed by statute (Wilkerson v. Bracken, 3 Ired. 315; Renfroe v. Taylor, 13 B. Mon. 403; Driskell v. Hanks, 18 B. Mon. 855; Bevan v. Taylor, 7 Serg. & It. 397; McWilliams v. Boss, /¡6 Pa. St. 369 ; Gilmore v. Boss, 2 Pittsb. 500; Addison v. Core, 2 Munf. 279; Beaumont v. Irwin, 2 Sneed 291; Torrey v. Shaw, 3 Fdw. Gh. 856; Hilliard v. More, Law Bepos. [N, C.) 590-; Ballard v. Hill, Id. 602; Johnson v. Lybrook, 16 Ind. 1ft3; Hawkins v. Shewen, 1 Sim.'& Stu. 257).</p> <p>Lands descended from a granduncle are not within the rule, since he is not an ancestor (Pennimgn v. Francisco, 1 Ileisk. 511); nor a grandparent, in Kentucky (Smith v. Smith, 2 Bush 520) ; in some states an uncle may be (Greeneel v. Davis, 19 Ind. 60); or a half-brother (Prickett v. Parker, 8 Ohio St. 891f); and lands acquired otherwise than by descent go to the whole and half-blood, or to the heirs of both parents, without distinction (Bell v. Dozier, 1 Dev. 883; McCracken v. Bogers, 6 Wis. 278; Wells v. Head, 12 B, Mon. 170. See Turner v. Patterson, 5 Dana 297).—Bep.</p>

<p>A wife’s conduct, induced mainly by the fact that she was unwilling to live with her mother-in-law, was exasperating and unforgiving, provoking her husband even to violence in a single instance and under peculiar circumstances, and exhibits an entire disregard as to his wishes about his household affairs, and a determination not to do her duty therein,—Held, that although it presents no justification for such violence, yet it is not sufficient ground to sustain a divorce for cruelty.</p>

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

<p>Bill to foreclose. On order to show cause, and affidavits.</p>

<p>The complainant began suit in a justice’s court, on which he obtained a judgment, and duly docketed it. Two days after he began the suit, another creditor of the defendant offered to buy complainant’s claim at one-half of its amount, or offered to sell complainant his own claim at the same rate, both of which propositions were declined. Thereupon such creditor took a conveyance of defendant’s land, subject to the mortgages thereon, and with an agreement that he would sell the land to whomsoever the defendant designated, and pay him the proceeds after paying his own and other specified claims or disbursements.—Held, that such conveyance was valid as against the complainant, but must, under the circumstances, be deemed a mere mortgage to secure the creditor’s demand, and the premises were ordered sold, to pay, first, the mortgages, then the creditor’s debt, and then complainant’s.</p>

<p>Where a grantor, by misrepresentations, induces his grantee to believe that the property contains more land than in fact it does contain, such grantee is entitled to a proportionate deduction from the amount due on his mortgage given for part of the consideration, on its foreclosure.</p>

<p>1. A right of way acquired by prescription is commensurate with and measured by the use, and the owner of the land has no right to do anything which will hinder or -obstruct such use.</p> <p>2. An owner of the land erected a gate in a lane that had been used without such gate for more than twenty years.—Held, that equity would relieve and protect the owner of the easement in his use of the lane unobstructed by such gate.</p>

<p>The complainant bought, at a public sale, and under a power of sale in a mortgage given by a horse railroad company, all their real estate, personal property, franchises, rights and privileges; he sold everything so bought to one Boylan, December 23d, 1874, taking, as part of the purchase-money, a mortgage thereon from Boylan and his wife. This mortgage was filed, as a chattel mortgage, on February 5th, 1875, but was never refiled. In April, 1876, an act of the legislature was passed, providing that a mortgage of chattels &c. of any railroad or canal company should be valid without being filed as a chattel mortgage.—Held,</p> <p>(1) That the act applied to the mortgage in question.</p> <p>(2) That it applied to mortgages executed before its passage.</p> <p>(3) That such mortgage was a lien on the chattels described therein, prior to judgments recovered after it was given, either against the mortgagor or a new horse railroad company, created after the mortgage was given, and claiming the disputed chattels by a devolution of title under Boylan, the mortgagor.</p>

<p>In 1867, lands were taken for a.street extension, an award- therefor made and confirmed, and the extension declared to be a street. Possession was taken by the city, the street' opened and used ever since as such, and a sewer built therein, but the award was never paid. In 1878, the owners of the lands made an assignment for the benefit of their creditors, to the complainants, who applied to the city for the award and were refused. They then advertised the lands, including other lands', also, for public sale, using, for that purpose, a map designating the street in question by its name and location.—Held,</p> <p>(1) That complainants were entitled to relief in equity, and would not be sent to law to obtain a judgment in ejectment for the lands, as a preliminary.</p> <p>(2) That the statute of limitations was no defence on the part of the city.</p> <p>(3) That using the map, as stated, was not a dedication of the lands in dispute.</p>

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

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

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

<p>The charter of a savings bank authorized it to accept and execute any trusts committed to such bank, by any person, by will or otherwise, or by order of any court. Under a family agreement, $25,000 were deposited in the bank, to pay $1,460 per annum to the widow, for life, and the surplus of the income from such deposit, if any, to her children. The bank was subsequently taken under the control of this court, on a deficiency of assets to pay its depositors in full.—Held,</p> <p>(1) That it was not established by proof that such deposit was taken by the bank as a special trust, or as a deposit differing materially from the other ordinary deposits of the bank.</p> <p>(2) That such deposit is not entitled to preference in payment over others.</p> <p>(3) That even if the trust claimed had been shown, nothing in the charter gives the fund the priority claimed, and it would not b© entitled to it.</p>

<p>A testator gave to his wife $5,000 “ to be paid to her, as far as can be, out of the insurance money coming to my estate from the insurance on my life.” He had three policies on his life, amounting in the aggregate to $2,500, payable to his wife, on which he always paid the premiums; he kept the policies in his possession, and delivered them, with his other papers &c. to his executor, and he had no other policy on his life.—Held, that the amount received from the insurance policies, by the widow, after his death, must be credited on the $5,000 legacy, notwithstanding the fact that such policies were, in terms, payable to her.</p> <p>Note.—Marriage, even if voidable, or a matrimonial engagement, gives the wife an insurable interest (Bliss on Life Ins. ? SB), that is not terminated by divorce (McKee v. Phoenix Tns. Co, $8 Mo. 388; Phoenix Ins. Co. v. Dunham, Ifi Conn., 8 Reporter 331; Conn. Ins. Co. v. Schaefer, 94 ZT. S. 457, SB Am. Law Reg. 899, note. See Welch’s Appeal, 48 Conn. 34S; McGrath v. 'Penn. Ins. Co., 8 Phila. 118); but a policy payable to the husband’s legal heirs, does not include the wife (Gauch v. St. Louis Ins. Co., 88 111. SSI; Rogers v. Bottsford, 44 G-a. 6SS. See Gosling v. Caldwell 1 Lea (Tenn.) 464, 19 Alb. L. J. 187).</p> <p>If issued for the sole use of the wife, or in case of her death to her husband’s children, it belongs, at his death, exclusively to her (Roe v. Mutual Life Ins. Co., 4 Bigelow’s Ins. Cas. SB4; Smiths. Missouri Ins. Co., 4 Dill. 388; Southern Ins. Co. v. Booker, 9 Heisk. 606); or, if she predecease her husband, the title to the proceeds is vested in her heirs (Libby v. Libby, 37 Me. 8B9; Hutson v. Merrifield, SI Lid. S4; Swan v. Snow, 11 Allen SS4; Fraternal Ins. Co. v. Applegate, 7 Ohio , St. S9S; Thompson v. American Co., 46 N. Y. 674; Stilwell v. Mut. Life Ins. Co., 7S N. Y. 88B; Wilson v. Lawrence, 13 Hun S88. See Gambs v. Covenant Mut. Ins. Co., 50 Mo. 44; Mut. Ben. Ins. Co. v. Atwood, 24 Grait. 497 ; Whilridge v. Barry, 42 Md. Í40, 24 Am. Law Reg. 3S9); and so, if payable to the wife and children (Lockwood v. Bishop, 51 How. Pr. 221; Chapin v. Fellowes, 36 Conn. 132; Zugler's Case, 23 La. Ann. 455; Hearing's Case, 26 La. Ann. 826; Mellor's Trusts, L. R. (6 Ch. Liv.) 127, (7 Oh. L>iv.) 200; Continental Ins. Co. v. Palmer, 42 Conn. 60; Deginther's Appeal, 83 Pa. St. 887; Anderson's Estate, 85 Pa. St. 202 ; Price v.- Phoenix Ins. Co., 17 Minn. 497; Crogin v. Crogin, 66 Me. 517); or children only (Ruppert v. Union Ins. Co., 7 Roberts. 155; Cables v. Prescott, 67 Me. 582; Rickenbacker v. Zimmerman, 10 Rich. (N.. S.) 110 ; Lee v. Chase, 58 Me. 482); or heirs, executors &c. (Rawson v. Iones, 52 Ga. 458; Grattan v. National Ins. Co., 15 Hun 74> Gosling v. Caldwell, 1 Lea (Tenn.) 454, 19 Alb. L. J. 187; New York Ins. Co. v. Flack, 3 Md. S4I; Shaffer v. McDuffie, 14 Rich. Eq. I46 ; Mullins v. Thompson, 51 Tex. 7; Loos v. Ins. Co., 41 Mo. 539).</p> <p>If the insurance company, in such case, fails in the life-time of the husband, he may sue, in his own name, to recover the premiums paid (Universal Life Ins. Co. v. Cogbill, SO Grail. 72. See United States Ins. Co. v. Wright, 83 Ohio St. 538; Éarlow v. St. Louis Ins. Co., 54 Miss. 425); so, if the policy be payable to the assured for the use of his wife and children, they have no interest as against his kona fide assignee (Burroughs v. State Mut. Ins. Co., 97 Mass. 359; Bailey v. New England Ins. Co., 114 Mass. 177); if payable to the wife, half for herself and half for the use of her children, she may sue thereon, without joining them [Life Ins. Co. v. Ray, 50 Tex. 511).</p> <p>If such interest he vested in the wife and children, the assured cannot deprive them of it by his will (Gould v. Emerson, 99 Mass. 151/,; Ruppert v. Union Mut. Ins. Co., 7 Roberts. 155 ; Rogers v. Botisford, 44 Ga. 652; Gauch v. St. Louis Ins. Co., 88 III. 251. See Kerman v. Howard, 28 Wis. 108).</p> <p>As to where the right of testamentary disposition is reserved in the policy itself, see Roberts v. Roberts, 64 N. C. 695; or a right of substituting another beneficiary [Eiseman v. Judah, 4 Cent. L. J. 845 ; Crittenden v. Phcenix Ins. Co., 41 Mich. 44&)-</p> <p>Where the testator has insured his life for his own benefit, he may, of course, dispose of the proceeds of the policy by his will [Phillips v. Eastwood, LI. & G. temp. Sug. 270; Stooke v. Slooke,85 Beav. 896 ; Petty v. Willson, L. R. [4 Ch.) 574; Williams v. Corson, 2 Tenn. Ch. 269; Keller v. Gaylor, 40 Conn. 81/8); but a mere bequest of an annuity will not pass a policy on the annuitant’s life [Hamilton v. Baldwin, 15 Beav. 282); so, money due on a policy may pass, as donatio causa mortis, by the delivery of the policy [Amis v. Witt, 83 Beav. 619, 7 Jur. [N. S.) .$99, 1 B. é S. 109). Such bequests, however, are not valid as against creditors [Elliott's Case, 50 Pa. St. 75; Stokes v. Coffey, 8 Bush 533; Hathaway v. Sherman, 61 Me. 466 ; Slokoe v. Cowan, 29 Beav. 637.—Rep.</p>

<p>A statute authorized savings banks to invest in, inter alia, bonds of cities, towns, counties or villages in this state, and any interest-bearing obligations (except improvement certificates) of the place where the bank is situated, and first mortgages on land in this state. On application for directions as to investments of new deposits in a savings bank under the superintendence of this court.—Held,</p> <p>(1) That the statute does not justify such investments in the bonds of any municipality of this state; discretion and prudence must be used in selecting such bonds, because they are not always good security.</p> <p>(2) That, in investing in mortgages, in addition to the requirements of the statute, viz., that such mortgages must be first liens on real estate worth, if improved and productive, at least double the amount loaned, and if not improved and productive, seventy per cent, more, and are, also, to be reported upon and certified by a committee of the managers—there must be a certificate of the counsel of the bank that the title is good and the mortgage legally valid, and, also, a certificate in writing, by a master designated by this court, approving the security as a proper and unexceptionable investment of trust money.</p>

<p>On application for a remedy against receiver, beard on petition and proofs taken orally before the vice-chancellor.</p>

<p>1. Unless a chattel mortgage is filed in the county where the mortgagor resides at the time of its execution, or the mortgagee takes immediate possession of the mortgaged chattels, and continues in the actual and constant possession of them, the mortgage is absolutely void against the creditors of the mortgagor, and subsequent purchasers and mortgagees in good faith.</p> <p>2. The statute concerning chattel mortgages makes an important distinction between creditors and subsequent purchasers or mortgagees. Purchasers or mortgagees, to avail themselves of a default on the part of a prior mortgagee, must take without notice of his rights, but a creditor is not affected by such notice.</p> <p>3. A judgment on bond and warrant of attorney can only be entered for a debt actually existing at-the time of its entry, and a simple liability as endorser or surety does not constitute such a debt.</p> <p>4. A security for future advances is entitled to priority over subsequent encumbrances, only to the extent of the sums advanced prior to actual notice of the subsequent encumbrance.</p> <p>5. Where a third encumbrancer acquires a right of priority over the first, but the act or omission from which such right flows does not change his relative position towards the second, yet, as it is impossible to put him in advance of the first, without advancing him, also, over the second, his lien must, of necessity, be advanced to the first position as against both the first and second encumbrances.</p>

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

<p>1. A transitory seizin, or seizin for an instant only, is not sufficient to support a mechanics lien.</p> <p>2. Such a momentary seizin will occur when a grantee, immediately upon receiving title, conveys it, by mortgage, to his grantor, or to a third person.</p> <p>3. When the deed and mortgage-appear to have been executed on the same day, the legal inference is, that they were made at the same time, and were parts of one and the same transaction.</p> <p>4. A purchase-money mortgage, under certain circumstances, is entitled to priority over a mechanics lien, though given subsequent to the commencement of the building.</p>

<p>On bill for an account. Exceptions to master’s report.</p>

<p>1. It is competent for the legislature not only to make taxes assessed on lands, liens thereon, but to give such liens precedence over all prior estates and rights therein.</p> <p>2. A law authorizing assessments for benefits, to the extent that the benefits are exceptional, and not such as result to the community generally, is a proper exercise of the power of taxation.</p> <p>3. An assessment for benefits is a tax, and may, in the discretion of the legislature, be made a lien superior to all prior estates and rights in the land.</p> <p>4. A statute which makes taxes a lien on land, and gives a mortgagee a right to redeem, and to tack the money paid in redemption to his mortgage debt, and provides that his rights under his mortgage shall not be divested without notice that the mortgaged premises have been sold for taxes, sufficiently indicates the purpose of the law-maker to make the tax lien paramount, to entitle it to override all prior mortgages on the land.</p>

<p>On application to set aside sale and final decree, in order that a new party may be added, and the defendants let in to defend. Heard on petition, order to show cause and depositions.</p>

<p>■ 1. It is not proper practice to move to dismiss a bill for want of equity, simply upon notice. The matter should come before the court upon demurrer.</p> <p>2. Moneys in the hands of a sheriff, raised by him in pursuance of a decree of this court, is not liable to seizure by attachment.</p> <p>3. This court will, if necessary, dissolve an injunction on its own motion, where it appears that the writ has been issued in a case where the party asking it had no right to it.</p>

<p>An application to revoke an order to sue on an administrators’ bond, denied, under the circumstances, although the administrators alleged that they were “ advised and believed ” that nothing was due to the creditor who obtained such order.</p>

<p>Motion for an order that proponents account for money paid to them by the administrator pendente lite, under the order of the court.</p>

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

<p>On appeals from decree of Monmouth orphans court.</p>

<p>1. Mere forgetfulness of recent events, in a testatrix eighty-three years old, is no evidence of incapacity to make a will.</p> <p>2. The influence of kind and faithful service by an attendant for many years, is not undue, and will not invalidate a bequest to such attendant.</p>

<p>On appeal from decrees of tbe orphans court of Passaic county.</p>

<p>1. A conveyance obtained by a brother from his unmarried sister, who was an inmate of his house, the circumstances showing that such conveyance was executed in the confidence that the brother would deal justly with her, set aside, it appearing that the consideration was largely inadequate.</p> <p>2. When the testimony is adapted to the general frame of the bill, although it does not conform to it in every particular, an amendment of such bill is not in all cases necessary before decree.</p> <p>3. Query, Whether an amendment of a bill at the final hearing can be allowed, when such amendment consists of facts that falsify materially the facts originally stated.</p> <p>Note.—No brief on the part of the respondents in this case was furnished to the reporter.—Rep.</p>

<p>1. The practice in this state is, on a reference to a master, for such officer to take the testimony and hear the arguments of counsel, and thereupon to make up and file his report without notice to the respective counsel.</p> <p>2. An order being made to re-refer an account stated and filed by a master, “for the purposes and with the powers mentioned in-the original order of reference, to state an account between the parties with particularity, and that the said master have power to take further evidence,”—Held, that such order gave authority to the parties to introduce such as they respectively deemed requisite.</p>

<p>On appeal from a decree of the chancellor dismissing the bill, recommended by George C. Ludlow, esq., advisory master.</p>

<p>1. Equity will enforce a parol promise, made by a legatee to a testator, to hold the legacy for the benefit of a third person. Parol evidence is not competent to vary a will; the ground upon which the trust is enforced is simply that of fraud practiced by the party on whom the trust is fastened.</p> <p>2. To maintain the bill, two facts must concur: First—that the testator gave the legacy to the defendant, not for his own benefit, but as a trustee for the complainant. Secondly—that the testator's mind was made known, before his' death, to the legatee, and the legacy was accepted by him on this footing.</p> <p>3. Any declaration of intention on the part of a testator, different from that expressed in the will, is incompetent as evidence, unless it was communicated to the legatee, assented to by him,' and such assent acted upon by the testator.</p>

<p>On account of her husband’s abuse of marital rights, a wife left him, in November, 1875, taking with her their two children. Her petition for a divorce, on this ground, was denied, upon his promise of conjugal kindness thereafter. The wife, however, refused to return to his home, with her children, notwithstanding his overtures and entreaties.—Held, that the wife’s acts were not “misconduct,” within the meaning of the statute, sufficient to take away from her the possession of the children, the boy being now about eleven and the girl nine years of age; the mother being capable and willing to support and educate them, and the children preferring to remain with her.</p> <p>Note.—In addition to the authorities cited in the opinions and briefs in this case, and, also', in 2 Bish. Mar. & Biv. §§ 529, 542, 546-549; Schouler’s Bom. Rel. 335 ; Tyler on Infancy 273; 2 White & Tudor's Lead. Cas. in Eq. 1506; Hurd on Habeas Corpus 460; English v. English, 4 Stew. Eq. 5441 note, the following analogous cases may be referred to : Taylor v. Taylor, 4 Jur. 969 ; Fynn’s Case, 2 BeG. & Sm. 457; In re Agar-Ellis, L. R. (10 Oh. Biv.) 49; In re Besdnt, L. R. (11 Ch. Biv.) 508, (12 Ch. Biv.) 605; Corsellis v. Corsellis, 1 Br. & War. 235; Striplin v. Ware, 36 Ala. 83 ; Burge v. Burge, 88 111. 164; Conn v. Conn, 67 Ind. 383 ; Byce v. Byce, 58 Ind. 64; Powell v. Powell, 53 Ind. 513; Zuver v. Zuver, 36 Iowa 190; Pratt v. Nitz, 1ft Iowa 33; Green v. Green, 9 Beporter 176-, Brandon v. Brandon, 14 Kan. 31ft; Adams v. Adams, 1 Buv. 167; Harvey v. lane, 66 Me. 536; Harding v. Harding, 88 Md. 337; Hill v. Hill, 49 Md. 450; Corrie v. Carrie [Mich.), 9 Beporter 445; Fitter v. Fitter, S3 Pa. St. 50; Hoffman v.. Hoffman, 15 Ohio St. Ift7; Clark v. Bayer, 38 Ohio St. 899; Buckminster v. Buckminster, 38 Vt. 848; Me Goon v. Irvin, 1 Pinney 586.</p> <p>No court can compel discordant husbands and wives to live together. Baugh v. Baugh, 37 Mich. 59; Simpson v. Simpson, 85 Ark. Ift7, lfiO.</p> <p>In Taylor's Case, 11 Sim. 178, the parties were married in 1829, and, in 1837, the wife left her husband, alleging in justification a charge of adultery, which was wholly without foundation, as she herself after-wards admitted. Overtures were made by the husband, but the wife, acting on some friends’ advice, refused to return home. The husband, believing her affections to be alienated beyond reconciliation, went abroad with his five children, two over and three under seven years of age. Afterwards the wife, in 1838 and 1839, made overtures to her husband, and, also, an unqualified retraction of her former charges, which, however, failed to satisfy him. In 1838, she filed a petition for a restoration of conjugal rights, and, pending an appeal by the husband from a decree in her favor, she petitioned for the delivery to her of the children under seven years old.—Held, that she was not entitled to their custody.</p> <p>In Brooks v. Brooks, 85 Barb. 85, the parties were married in November, 1856, and their child born in September, 1857. In May, 1858, the wife left her husband’s house, in consequence of his ill-treatment, and obtained possession of the child by habeas corpus. On the husband’s petition for the child, alleging that his wife had left him without just cause or provocation, and absented herself and detained the child ágainst his wishes,—Held, that the overruling of the husband’s offer to prove his allegations in. the petition, and that he was of good moral character and compétent to take care of his wife and child, and had frequently offered to do so, was erroneous.</p> <p>In People v. Humphreys, 81f Barb. 581, the marriage took place in January, 1853, a female child was born in October, 1855, and the wife, without the husband’s consent, left him in April, 1856. He retained the child. In April, 1856, she petitioned for the child, and it was delivered to her. On appeal, it appeared that although the husband had been inattentive, hnd often used coarse and vituperative language to her, and to others concerning her, yet his conduct did not justify her separation, and the child was restored to him.</p> <p>In Holmes's Case, 19 How. Pr. 889, the parties were married in 1841, and had three daughters. The husband, in August, 1859, left his wife without any provision and removed to Illinois with all the children, the only grounds of his desertion being that she was irritable and jealous and a spiritualist; the latter charge, however, she denied and substantiated her denial. She alleged and proved that he was a spiritualist with a tendency to free love, and traveled and held public exhibitions with a female medium of similar proclivities. The wife, on habeas corpus in Illinois, obtained the youngest child. The husband afterwards made overtures to his wife and offered to provide her'a home, if she would return, but she refused, not believing in the sincerity of his professions and promises. The eldest child, about seventeen years old, was living with her mother from choice, and, also, the youngest, about eight, and the second one, about fourteen, with her father. His petition to have the eldest and youngest children given to him, was denied.</p> <p>In Price v. Price, 66 N. 7. 666, an order awarding the custody of a child, twelve years old, to its mother on a divorce obtained by her, was considered so far “ discretionary ” that it was not appealable.</p> <p>In Anonymous, 65 Ala. 428, a wife sought a divorce from her husband, on the ground of cruelty, and, also, sought the custody of her daughter, four or five yeárs old, the only issue of the marriage. The divorce was refused, but the child awarded to her.</p> <p>In McKim v. McKim, 12 P. I. 462, 10 Geni. L. J. 889, 21 Alb. L. J. 848, the marriage was celebrated in October, 1874, and the parties lived in New York until May 1875, when they removed to Newport, where their daughter was born in August, 1875. They returned to New York, in January, 1876, and lived there until May, 1877, when the wife, with their child, left him, and afterwards resided with her father in Newport. No legal justification for her desertion was proved.—Held, that the welfare of the child, a delicate female four years old, required that she should remain with her mother. The court cautioned the mother, however, against any attempt to alienate the child’s affection for its father.</p> <p>In McShanv. McSkan, 66 Miss. 118, the parties married in 1871, in Mississippi; soon afterwards they removed to Arkansas, and, when one child, a daughter, was about two and a half years old and his wife enceinte of another, the husband deserted his family, taking with him all the money his wife possessed. She returned to her father’s house in Mississippi, and several months after the second child, another daughter, was born, he also returned, and, becoming prosperous in his profession, then made overtures to his wife to return to his house, which she rejected. It was shown that he was a reputable physician, with good professional prospects and of moral habits.—Held, that his petition, on habeas corpus, for his two children must be refused.</p> <p>In Lusk v. Lusk, 28 Mo. 91, the parties were married in 1847 ; in 1850 the husband went to California, intending to return in two years, leaving his wife and two children in Missouri; he remained absent until 1857, and his wife, learning, from a letter received in 1854, that he was dead, married again in 1855; on the husband’s return, she ceased cohabiting with her second husband. On her petition for a divorce from her first husband, on the ground of desertion, and his cross-bill for divorce on account of her alleged adultery with her second husband, the court granted him a divorce, and gave him the custody of the children. On appeal,—Held, that, although the divorce was good, yet the children must be restored to their mother.</p> <p>In Messenger v. Messenger, 56 Mo. 829, on cross-petitions, on the ground of desertion, a divorce was granted to the husband, but the two children, apparently about eight and six years old, were ordered to be left with the mother.</p> <p>In Hewitt’s Case, 11 Rich. 326, the wife, without justification, abandoned her husband, leaving with him their son, about seven months old. On her petition to obtain his delivery to her,—Held, that, although her own character was .excellent, yet, as she had established none of her charges of unfitness against her husband, he must retain the child.</p> <p>In Com. v. Demott, 61^ Pa. St. 805, note, a wife, shown to be high-tempered and violent when aggravated by her husband, deserted him, taking with her their daughter, five years and three months old.— Held., that she was not so incapable of taking care of the child that it must be delivered to its father.</p> <p>In Carr v. Carr, 22 Gratt. 168, a divorce was granted to a husband for his wife’s desertion, although she had been driven thereto by his conduct, which was rude, petulant and penurious.—Held, that their child, although a female, and only three years old, must be restored to the father.</p> <p>In Welch v. Welch, 88 Wis. 53i’¡., a wife obtained a divorce in 1861 for her husband’s desertion, and also the custody of their son, about a year old. Both parents afterwards married again. In 1872 the father obtained an order transferring the boy, then fourteen years old, to him, upon his establishing to the satisfaction of the court his ability and desire to provide maintenance and education suitable to the boy’s condition and prospects in life.</p> <p>In Foster v. Fedfield, 50 Vt. 285, on the ground that a petition for divorce involves not only the interests of the immediate parties thereto, but also those of their children and of the public, a court, after hearing a petition brought by the mother of two young children for a divorce, founded on her husband’s intolerable cruelty and refusal to support her, declined to grant the divorce, and, of its own motion, continued the case, with a view to a reconciliation of the parents, and the probable better support and education of the children, and a higher court refused to interfere by procedendo. See Baugh v. Baugh, 37'Mich. 59.</p> <p>In Chandler v. Chandler, 21¡, Mich. 176, a decree of divorce, granted in August, 1868, on account of the husband’s extreme cruelty, awarded the child (a boy) then about two and a half years old, to its mother. In January, 1871, the father’s petition for the custody of the boy, no change appearing in the circumstances existing when the former decree was made, was denied.</p> <p>In Scoggins v. Scoggins, 80 N. C. 318, on a wife’s petition alleging cruelty, and that her husband was trying to dispose of his property, leave the state and abandon her, alimony was granted, and the custody of the three youngest children, who were girls, given to the mother, and the oldest, a boy, to the father. The ages of the children are not stated in the case.</p> <p>In Bennett v. Bennett, 1/2 Conn. 313, the mother of two daughters, aged five and nine years, after living with her husband at irregular times for several years, went to live with her parents, because of her husband’s inability to obtain employment, or provide for her. On her petition, alleging desertion, a divorce was denied, and the custody of the children given to the father, who was of good moral character and attached to them, and although he was unsuccessful in business, yet his mother and sister were cultured persons of the highest character, morally and socially, and able, pecuniarily, and willing to assume to support and educate the children.—Rep.</p>

<p>Upon appeal from an order granting a preliminary injunction, reported in Central R. R. Co. v. Penna. R. R. Co., 4 Stew. Eq. 475.</p>

<p>1. One cannot appeal from a decree of the court of chancery to this court, for the purpose of having the decree affirmed. He must appear to be aggrieved, or he has no standing here.</p> <p>2. An appellant, who complains of one portion of a decree in chancery, does not thereby acquire the right to ask for the affirmance of other and independent parts of the decree of which no one complains.</p> <p>3. An executor or trustee, representing the interests of persons who are otherwise unrepresented in the cause, is entitled to appeal from a decree which injuriously affects those interests.</p> <p>4. Where a testator bequeathed one-third of the residue of his estate to his executors as trustees, in trust, to pay the net income and interest thereof to his daughter, during her natural life,—Held, that the daughter was entitled to the interest which accrued from the date of the testator’s death.</p> <p>Note.—No brief on the part of the appellants in this case was furnished to the reporter.—Rep.</p>

<p>On appeal from a decree of the chancellor, reported in Hart v. Schenck, 5 Stew. Eq. 148.</p>

<p>1. Executors, empowered by the will of their testator to carry on his business after his decease, are personally liable for the debts contracted thereby.</p> <p>2. But they have a right, in equity, to indemnify themselves for the payment of such debts, out of the property lawfully embarked in the trade.</p> <p>3. Erom such right springs an equitable right of the trade creditors to resort to such fund for payment, if their remedy against the executors be unavailing.</p> <p>4. Prima facie’, only the property invested in the business at the testator’s decease is regarded as the trade fund; and it requires a clear and unambiguous declaration of purpose in the will to justify the subjection of any other property to the risks of the venture.</p> <p>5. Under certain circumstances, the fee-simple of land was held to be thus involved.</p> <p>6. Where executors, carrying on business under a will, had, without authority, used the proceeds of the business to improve lands of the testator not subjected to the risks of trade, and which, under the will, belonged, in remainder, to married women and infants,—Held, that this would not justify the court in charging the estate of these remaindermen, to any extent, with the trade debts.</p>

1 Dan. Ch. Pr. 733. This rule was established' by Lord ITardwicke; by order made April 27th, 1748. Fulton Bank v. Beach, 6 Wend. 42. And the court of chancery of New York, in 1830, in adopting “ the customary practice as it had theretofore existed,” engrafted it upon its procedure. Denison v. Bassford, 7 Paige 371. But it has never been adopted or followed in this state.

<p>On appeal from a decree of the chancellor, on the advisory opinion of the vice-chancellor, reported in Mutual Benefit Life Ins. Co. v. Brown, 3 Stew. Eq. 193.</p>

<p>1. In an insolvent mutual life insurance company, the holders of policies matured either by death or the attainment of the age specified, are preferred creditors, and the holders of running policies, members, of the debtor corporation, and hence the former cannot be called on to share, pra rata, losses occurring after their claims matured.</p> <p>2. Where, at the date of such insolvency, the risk on endowment policies had not been terminated, the holders of such policies are not creditors, notwithstanding all the premiums thereon liable to be called for, had been paid.</p> <p>3. The day on which the insolvency occurred, as adjudged by the decree, fixes the time to which the sever.al claims must be referred for adjustment, and not the date of the decree itself.</p>

<p>1. The answer of one defendant cannot have the effect of an answer as against a co-defendant. Admissions contained in the answer of one defendant will be received in evidence against a co-defendant, where the parties stand to each other in such relation that the admissions of the one would be competent evidence against the other; but a co-defendant, having filed a separate answer, is entitled to every defence which his answer will allow to be made under it.</p> <p>2. If the admissions of a surviving partner with respect to a transaction within the scope of the copartnership, made after the death of his copartner, be competent evidence against the personal representatives of the deceased partner, they are not conclusive.</p> <p>3. Unless in cases specially provided for in the statute, part performance will not validate a contract invalid by the statute of frauds, so as to enable the party to enforce it by an action upon the contract. The doctrine that part performance of a contract will make valid a contract invalid by the statute, is exclusively the creature of equity,- and applies only to contracts relating to land.</p> <p>4. A party performing services under a contract invalid by the statute of frauds, cannot sue upon the contract to recover compensation for his services. The only remedy in such cases is upon a quantum meruit for the value of the service.</p> <p>5. In an action on a quantum meruit to recover the value of services performed under a special contract invalid by the statute of frauds, which stipulates for compensation by the conveyance of property or some other collateral benefit to be conferred, evidence of thé value of the property to be conveyed, or the benefit to be conferred, is not competent evidence on the subject of the value of the services rendered.</p> <p>6. M. entered into a verbal contract with the firm of H. & Co., as superintendent of the business of the firm, for the compensation of one-eighth of the profits of the business, with a guarantee that the one-eighth of the profits should not be less than $3,000 a year. The service was to commence at a day subsequent to the making of the agreement.—Held,</p> <p>(1) That the agreement was within the statute of frauds as an agreement not to be performed within a year from the making thereof.</p> <p>(2) That M. could not sue on the contract to recover compensation for services performed under the contract, and that, in an action on a quantum meruit for the services performed, he could not resort to an account of profits as evidence of the value of his services.</p>

<p>A. Hooley, a member of a firm, died, leaving in his will a direction to his trustees to withdraw his interest from the firm business as soon as practicable, and invest the proceeds. The trustees, with a third person, formed a new firm and kept the stock of the old firm in their business, allowing the Hooley estate $53,000 for the interest of the deceased. This sum was never paid to the estate and invested. More than three years after the death of H., the trustees borrowed of Ross $7,100, to be used in the business of the new firm for the purpose, as they allege, of enabling them to pay to the Hooley estate the firm debt of $53,000. As collateral security for such loan, they assigned to Ross “a trust mortgage, which they held as such trustees.”—Held,</p> <p>Note.—No brief on the part of the appellant in this case was furnished to the reporter.—Rep.</p> <p>(1) That such assignment was a breach of trust, inasmuch as the proceeds therefrom were to be applied to the aid of a business of which the trustees were partners.</p> <p>(2) That the facts in the case show that Ross knew of the purpose for which the money was borrowed, and that he knew the facts which made its borrowing a breach of trust, and, hence, there should be a decree that he re-assign the mortgage.</p>