Volume 33 — New Jersey Equity Reports

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

<p>Bill for divorce a vinculo.</p>

<p>Proof that a husband and wife have lived separate, and that the husband has not supported his wife, does not establish willful, continued and obstinate desertion, so as to authorize a divorce.</p>

<p>An account of an executrix and her husband, guardian of the share of the daughter of the former, was settled by the daughter (the ward) and her husband thirty-four years before the filing of the bill, which was by the daughter, (whose husband was dead,) for an account of her share. The ground relied on was errors in the account which was settled, and the fact that the daughter was, when it was settled, a minor. — Held, that the claim was a stale one, and that, under the circumstances, she was bound- by the settlement, notwithstanding her minority.</p>

<p>A trust to sell or improve lands; to invest and re-invest the proceeds; to collect rents aud income; to pay taxes, assessments, commissions, and other annual expenses and charges; to pay over the net income, and to divide the estate, vests a fee simple title in the designated trustees, not limited to the lifetime of the donor’s children, which trust descends to the heir at common law, the eldest son of the survivor of the trustees, and his contract to sell lands of the estate may be specifically enforced.</p>

Bill to remove cloud from title. On bill and answer of the mayor and council, and replication thereto, and proof taken under the issue so joined, and plea of the water commissioners of the city of Hoboken, and agreement of counsel.

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

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

<p>On plea to creditor’s bill.</p>

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

<p>By a will, proved in 1849, a testator gave to Ms executor his homestead farm in trust during the life of his daughter (petitioner’s mother), to receive the rents and profits, and to pay them to her for her separate use, and to keep the property clear of any encumbrance by her or her husband; apd he gave the farm, after her decease, to such person or persons as should he her heir or heirs at law of land held by her in fee simple. In 1868 the farm was sold by order of this court, under the act authorizing the sale of lands limited over to infants or in contingency, the proceeds paid into court and invested for the benefit of the parties interested. — Held, that such proceeds of sale could not be paid over to her children and heirs at law, on their own application, exhibiting the release of their mother and her consent thereto; nor can they be paid over until after her death, because it cannot until then be determined who are her heirs at law.</p> <p>Note. — Under nemo est hceres viventis, a testamentary gift to the heirs of A during A’s lifetime is void (8 Greenl. Cruise *106 § 37 ; 2 Jarm. on Wills *13 et seq.; Otis v. Prince, 10 Cray 582 ; Stith v. Pames, 1 Law Pepos. (N. O.) 434; Ohessun v. Smith, 3 Id. 392 ; Norris v. Hensley, 27 Cal. 439, 430; Campbell v. Pawdon, 18 N. Y. 413,416.</p> <p>But if A be referred to in the will as a living person, a gift to his heirs is valid (James v. Richardson, 1 Venir. 334; Coodright v. White, 2 W. PI. 1010 ; Winter v. Perratt, 5B.&C.43 ; Came v. Poche, 7 Ping. 226; Parbison v. Peau-mont, 1 P. Wms. 229; Vannorsdell v. Van Peventer, 51 Parb. 137; Heard v. Horton, 1 Pernio 165 ; Cushman v. Horton, 59 N. Y. 149 ; Cosbey v. Lee, 2 Pisn. 460; Jourdan v. Creen, 1 Pev. Eq. 270; Levitt v. Wood, 17 Grants Ch. 414; Knight v. Knight, 3 Jones Eq. 167; Simms v. Garroit, 1 Pev. & Pat. Eq. 393 ; Ward v. Stow, 2 Peo. Eq. 509 ; Stith v. Pames, 1 Law Pepos. 484; or, in case the term heirs is evidently used as designatio personanm (Sams v. Garliek, 14 M. & W. 698 ; Paher v. Tucker, 3 H. of L. Cos. 106 ; Pittson v. Stordy, 1 Jur. (N. S.) 771; Powers v. Porter, 4 Pish. 198; Johnson v. Whiton, 118 Mass. 340; Morton v. Parrett, 22 Me. 257; Williamson v. Williamson, 18 P. Mon. 370; Popp v. Matthias, 35 Ind. 332; Putler v. Heustis, 68 111. 594; Bailey y. Palter son, 8 Pich. Eq. 156; Caulk v. Fox, 13 Fla. 148,161; Ware v. Piehardson, 3 Md. 505; Poberts v. Ogboume, 37 Ala. 174; Myers v. Anderson, 1 Slrobh. Eq. 344); so where the term heirs is qualified, as heirs of the body, right heirs, &e. (Nightingale v. Quarterly, 1 T. R. 630; Sweety. Herring, 1 East264; Parbison v. Peaumont, 3 Pro. P. C. 60; Poe v. Laming, 2 Purr. 1100; Tucker v. Adams, 14 Ga. 548; Sharman y. Jackson, SO Qa. 224; Tipton y. La Rose, 27 Ind. 434; Grout y. Townsend, 2 Hill 554; Pradford y. Howell, 43 Ala. 422; Lemarhs v. Glover, 1 Pich. Eq. 141).</p> <p>The grantee in a deed must be in existence and certain, therefore a grant to a dead man is void (Hunter v. Watson, 12 Cal. 863 ; McCracken y. Peal, 8 A. K. Marsh. 208; Galloway y. Finley, 12 Pet. 264; see Holden v. Smallbroke Vaughn 199); or to a fictitious person (Thomas y. Wyatt, 25 Mo. 24, 31 Mo. 188 ; Phelps y. Call, 7 Ired. 262; Muskingum Co. y. Ward, 13 Ohio 120; Smith y. Pridges, Preese 2); or to one unborn (Newsom y. Thompson, 2 Ired. 277; Pupree v. Pvpree, Push. Eq. 164; Hall y. Thomas, 3 Strobh. 101; Hamilton y. Pitcher, 53 Mo. 334); although in Nelson y. Iverson, 24 Ala. 9, the property in a slave delivered by a father to his daughter to belong to her child, with which she was then pregnant, should it be a boy, was held to vest in such boy at his birth.</p> <p>A grant to the heirs of a deceased person is good (Shaw v. Loud, 12 Mass. 441; Boone y. Moore, 14 Mo. 420 / Gearhart v. Sharp, 9 B. Mon. 31; see Sargent v. Simpson, 8 Me.148 ; Duncan v. Barper, 4 Bich. (N. S.) 84).</p> <p>A deed to the heirs of a living person is, ordinarily, void (Ball v. Leonard, 1 Pick. 27; Morris v. Stephens, 4*> Pa. St. 200 ; Winslow v. Winslow, 52 Ind. 8; Newsom y. Thompson, 2 Ired. 277); yet if such intent be apparent from the instrument, who are the beneficiaries may be shown (Bogg v. Odom, Dud. 185; Martin v. Youngblood, 8 Bumph. 581; Gearhart v. Sharp, 9 B. Mon. 34; Buss y. Stephens, 51 Pa. St. 282 ; Buss v. IKbms, S3 Pa. St. 367 ; Flint v. Steadman, 36 Vt. 210; Biekman v. Quinn, 6 Yerg. 95; see further Epperson v. Mills, 19 Tex. 65; Cole v. Lake Go., 54 N. B. 290) ; thus a deed to the joint heirs of A and B, the grantor’s daughter and son in law, was held good as to the two children of A and B, then living, but not as to any subsequently born (Boleman v. Port, 3 Strobh. Eq. 66).</p> <p>A note payable to the heirs of a living person is valid (Bacon v. Pitch, 1 Boot 181; Lockwood v. Jesup, 9 Conn. 272; Coxy. Beltzhoover, 11 Mo. 142; but see Bennington v. Dinsmore, 2 Gill 348).</p> <p>A deed to S. or his heirs is good (Beady v. Kearsley, 14 Mich. 215; Bogan y. Page, 2 Wall. 605; see Carhart v. Miller, 2 South. 573); or a bond payable to A or B (White v. Bancoek, 2 C. B. 830 ; Bazen v. Drummond, 4 Allen (N. B) 267; Parker v. Carson, 64 N. C. 563); but not a promissory note (Musselman v. Oakes, 19 Bl. 81; Blanckenhagen v. Blundell, 2 B. & Aid. 411; Osgood v. Pearson, 4 Gray 455; National Ins. Co. v. Allen, 116 Mass. 400; Bayden v. Snell, 9 Gray 365; Willoughby v. Willoughby, 5 N. B. 244; see Doak v. Bob-inson, 1 Bannaiy 278).</p> <p>In a conveyance to an unmarried woman and her children, she takes a life estate with a remainder to her after-born children, if any (Fcdes v. Ourrier, 55 N. B. 392 ; Frazer v. Supervisors, 74 III. 282 ; see Chess» v. Smith, 2 Law Be-pos. (N. C.) 392).</p> <p>If to a married woman and her children, those subsequently born do not take (Ayton v. Ayton, 1 Cox 327 ; Stroman v. Bottehburg, 4Desauss. 268 ; Bogg y. Odom, Dud. 185 ; Grimes v. Orrand, 2 Beisk. 298 ; Boleman v. Fort, 3 Strobh. Eq. 66; Kitchens v. Oi-aig, 1 Bail. 119); unless a contrary intent appears (Dillard v. Buckers, 9 Yerg. 64; Bead v. Fite, 8 Bumph. 328; Shepherd y. Nabors, 6 Ala. 631; Walts v. Clardy, 2 Fla. 369; Conklin v. Conklin, 3 Sandf. Ch. 64; Woodruff y. Woodruff, 32 Ga. 358; Boughton y. Kendall, 7 Allen 72; Foster v. Shreve, 6 Bush 519; Simms v. Garrott, 1 Deo. & Bat. Eq. 393; Bullock v. Bullock, 2 Dev. Eq. 307 ; Noe v. Miller, 4 Stew. Eq. 234).</p> <p>A life tenant’s covenant indemnifying one against damage and loss by reason of suits by the covenantor’s heirs, executors or administrators, was held not to include such covenantor’s children (Pearson v. Darrington, 32 Ala. 227, 275).</p> <p>A mere contingent interest is subject to legislation, affecting or destroying it before it becomes vested (Beall v. Beall, 8 Ga. 210 ; Scott v. Key, 11 La. Ann. 232; Sleight v. Bead, 9 Bow. Pr. 278; Aspden’s Estate, 2 Wall. Jr. 368; Barnes v. Bason, 60 Bari. 598; Dixon v. Dixon, 4 La. Ann. 191; Marshall v. King, 24 Miss. 85; Bid v. Chambers, 80 Mich. 422 ; Price v. Taylor, 28 Pa. St. 95; McOunnigle y. McKee, 77 Pa. St. 81; see, however, Coleman v. Peed, Walk. 258 ; Sinclair v. Jackson, 8 Cow. 548; Gilpin v. Williams, 25 Ohio St. 288; Dunn y. Sargent, 101 Mass. 886; Shonk y. Brown, 61 Pa. St. 820; Van Tilburgh y. Bolr linshead, 1 McCart. 82).</p> <p>An heir cannot convey his interest or expectancy in his ancestor’s estate, before such ancestor’s decease, or the happening of the contingency (Suitings y. Richmond, 5 Allen 187; Jackson v. Bradford, 4 Wend. 619; Tooley v. Dibble, 2 Bill (N. 7.) 64I; Whibney v. Bust, 1 Gralt. 483; Arrington v. Arrington, 2 Law Repos. (N. C.) 258; Dennett v. Dennett, 40 K. B. 498 ; Vance y. Vance, 21 Me. 864; Grogan v. Garrison, 27 Ohio St. 50; Striker v. Mott, 28 N. 7. 82; Ludmig's Case, 8 Rob. (La.) 99; Beard v. Griggs, 1 A. K. Marsh. 26; Boynton v. Bubbard, 7 Mass. 112 ; Bun v. Chaffee, 14 N. B. 215; Blanchard v. Brooks, 12 Pick. 47; Barksdale v. Gamage, 8 Rich. Eq. 271; Brewer v. Baxter, 41 Ga. 212; Bart v. Gregg, 32 Ohio St. 502; Pelletreau v. Jackson, 11 Wend. 110; Robertson v. Wilson, 88 K. B. 48; Ball v. Nate, 88 N. B. 422; Edwards v. Variek, 5 Demo 664) ; or mortgage it (Bayler v. Com., 40 Pa. St. 87; Carlton v. Leighton, 8 Meriv. 667 ; Purcell v. Mather, 85 Ala. 570 ; see Batty v. Lloyd, 1 Vern. 141; Cook y. Field, 15 Q. B. 475 ; John Street, 19 Wend. 659 ; Bamilton v. Pitcher, 58 Mo. 834; Bacon y. Bonham, 12 C. E. Gr. 209). As to post obits seel Story’s Eq. Jur. \\ 842-348; Lushimgton y. Wallis, 1 B. Bl. 94; Spencer v. Jansen, 2 Fes. Sr. 125; Cooke v. Lamotte, 15 Bear. 284; Beynon y. Cook, L. R. (10 Ch.) 889; Miller y. Cook, L. R. (10 Eq.) 641).</p> <p>Equity, however, will enforce an executory contract to convey such contingent interest to third persons, provided it be fair and bona fide (Bopson y. Trevor, 1 Strange 583 ; Phipson v. Turner, 9 Sim. 245; Binde v. Blake, 8 Beav. 234 ; Westby v. Westby, 2 Dr. & War. 502; Ridgeway v. Undemood, 67 III. 419; McLaughlin v. Maher, 17 Bum, 215; Smallman’s Estate, Ir. L. R. (8 Eq.) 249 ; Cook v. Field, 15 Q. B. 460; Mastín v. Marlow, 65 N. C. 695; Nesmith v. Dinsmore, 17 N. B. 515; Trull v. Eastman, 3 Meta. 121; Russ y. Alpaugh, 118 Mass. 876 ; Curtis v. Curtis, 49 Me. 24; McDonald v. McDonald, 5 Jones Eq. 211; Stover v. Eyeelshimer, 46 Barb. 84, 3 Keyes 620); especially if made to the ancestor (Cox y. Bditha, 2 P. Wms. 272; Persse v. Persse, 7 Cl. & Fin. 279; Quarles y. Quarles, 4 Mass. 680; Jones y. Jones, 4s Iowa 466 ; Firestone v. Firestone, 2 Ohio St. 415; Needles v. Needles, 7 Ohio St. 432; Fitzgerald v. Vestal, 4 Sneed 258; Parsons v. Ely, 45 M. 232; Bavens v. Thompson, 11 C. E. Gr. 383)-, or to another heir (Wethered v. Wethered, 2 Sim. 188 ; Marwood v. Tooke, Id. 192 ; Byde v. White, 5,Sim. 524; Jeefers v. Lampson, 10 Ohio St. 101; Coates Street, 2 Ashm. 12; Walker v. Walker, 67 Pa. St. 185; D’Wolf v. Gardiner, 9 R. I. 145; Miller y. Emans, 19 N. 7. 884; Lewis v. Madison, 1 Munf. 80S ; Johnson v. BubbeU, 2 Stock. 832; Smith v. Axtell, Saxt. 494); or with the ancestor’s express consent (Fitch v. Fitch, 8 Pick. 480 ; Jenkins v. Stetson, 9 Allen 127; Lee v. Lee, 2 Duv. 184; McBee v. Myers, 4 Bush 856).</p> <p>But equity does not always enforce such assignments (Méek y. Kettlewed, 1 Phil. 342 ; Lowry v. Spear, 7 Bush 451; Wheeler y. Wheele¡-,2 Mete. (Ky.) 474; Hardin v. Smith, 7 B. Mon. 892; Mereier v. Mereier, 50 Ga. 546) ; and may impose terms (Gwynne v. Heaton, 1 Bro. G. G. 1).</p> <p>As to the mode of alienating such interest, see Dorsey v. Smith, 7 Harr. & Johns. 845; Bennett v. Morris, 5 Bawled; Lintner Y. Snyder, 15 Barb. 621; Wilson v. Wilson, 82 Barb. 828; Ackerman y. Vreeland.l MeOart. 28; Faber y. Police, 10 Rich. (N. S.) 376; McElwee v. Wheeler, Id. 892; Roof y. Fountain, 20 Barb. 527; McGlure y. McGlure, 1 Phila. 117; Hopper y. Demurest, 1 Zdb. 525.</p> <p>A tenant by curtesy initiate may convey his interest in lands (Beaume v. Chambers, 22 Mo. 86; Jackson v. Maneius, 2 Wend. 857; McGorry v. King, 3 Humph. 267; Evans Y. Kingsberry, 2 Band. 120; McQlain y. Gregg, 2 A. K. Marsh. 457 ; see Oldham y. Henderson, 5 Dana 254); or one who has “ entered ” a tract of land before receiving his patent therefor (Hayward v. Ormsbee, 11 Wis. 8 ; Harmer v. Morris, 1 McLean 44; Bledsoe v. Little, 4 How. (Miss.) 18 ; Lamb Y. Kama, 1 Sawy. 288; Carroll v. Norwood, 4 H. & McH. 287; Graham Y. Henry, 17 Tex. 164; Cobb y. Stewart, 4 Mete. (Ky.) 255); or after an entry for condition broken (Homer v. Chicago B. B., S8 Wis. 165; 2 White & Tudor’s Lead. Cos. (4th ed.) 1609 ; Southard v. Centred B. B., 2 Dutch. 18 ; Bice y. Boston R. B., 12 Allen 141; Boone v. Tipton, 15 Ind. 270 ; Underhill v. Sara-toga B. B., 20 Barb. 455.</p> <p>An heir whose title is abated by a stranger cannot devise it before entry. Hall y. Hall, 8 Call 488; 1 Jarm. on Wills (5th Am. ed.) 158; see Watts y. Cole, 2 Leigh 664; Varick v. Jackson, 2 Wend. 166 ; Herrington v. Budd, 5 Denio 321; Leach v. Jay, L. B. (6 Ch. Div.) 496, (9 Ch. Div.) 42); nor one who has a mere possibility of reverter (Deas v. Horry, 2 Hill Oh. 248; Miller v. McNair, 11 Iowa 525 ; see Fowler v. Griffin, 8 Sandf. 885).</p> <p>A possibility coupled with an interest is devisable or descendible (Manners y. Manners, Spen. 142 ; Thornton v. Boberts, 8 Stew. Eq. 476; Kean v. Hoffiecker, 2 Hairing. 108; Thompson v. Hoop, 6 Ohio St. 480; Lewis v. Kemp, 1 Ired. 145 ; Pond y. Bergh, 10 Paige 140,153 and cases cited; Davis v. Baweim, 10 Heisk. 406; Woodgate Y. Fleet, 44 N. 7.1; Ingilby v. Amcotts, 21 Beav. 585; Moor Y. Hawkins, 2 Eden 842; Austin v. Cambridgeport, 21 Pick. 215; 4 Kent *512; Winslow v. Goodmn, 7 Mete. 868; Smith v. Sweringen, 26 Mo. 551; McDonald v. McMullen, 2 Hills 91; see Bigelow v. Wilson, 1 Pick. 493; Grayson Y. Sandf ord, 12 La. Ann. 646) ; but not a bare possibility, as if a conveyance be to A and B and the survivor, A has no interest to assign during B’s lifetime (Doe Y. Tomkinson, 2 M.& Sel. 165; Jackson v. Waldron, 18 Wend. 178; CBiemés Case, 1 Jon. & Lat. 852; Decker v. Salisman, 1 Hun 421, 59 N. Y. 275 ; see MacAdam v. Logan, 8 Bro. C. C. 810 ; Thomas v. Jones, 1 De G. J. & S. 68 ; Miller v. Emans, 19 N. Y. 884; Wilson v. Wilson, 82 Barb. 828),</p> <p>No act of the life tenant, or trustee of such life tenant, can affect the rights of the remaindermen. (Putnam v. Gleason, 99 Mass. 454; Noble v. Andrews, 37 Conn. 846; Jackson v. Edwards, 22 Wend. 498; Frazer v. Supervisors, 74 III. 282 ; Emison Y. Whittlesey, 55 Mo. 254; Austin v. Rutland B. B., 45 Vt. 215; Fdtman v. Bidts, 8 Bush 115; list v. Rodney, 83 Pa. St. 488; Homier v. Carter, 68 'III. 98; Wilkins v. Kirkbride, 12 C. E. Gr. 98; Booraem v. Wells, 4 C. E. Gr. 87 ; see Knight v.Weathenoax, 7 Paige 182; Isler Y.Whitfield, Phü. (N. O.) 498 ; Kali v. Want, Id. 502; Baylor v. Be Janette, IS Gratt. 152 ; Stephens v. Evans, 80 Ind. 89; Hamilton v. Piteher, 53 Mo. 334; Lewis v. Kelson, 4 Mich. 630; Garner v. Howling, 11 Keish. 48; Allen v. Allen, 2 Tern. Gh. 28 ; Mv/rett v. Mathews, 2 Bay 897).</p> <p>But statutory proceedings authorizing courts to convey or release estates in expectancy, &c., are valid. (Beisley v. Garter, L. B. (4 Gh.) 230; Basnettv. Moxon, L. B. (20 Eq.) 182; Wills v. Slade, 6 Ves. 498; Gaskell v. Gaskett, 6 Sim. 643; Mead v. Mitchell-, 17 N. Y. 210; Willimam, v. Holmes, 4 Bieh. Eq. 475; Faulkner v. Earns, 18 Gi'ait. 651; Loyless v. Blackshear, 43 Ga. 827; BeindersY. Koppelmann, 68 Mo. 482; Nutter v. Bussell, 8 Mete. (Ky.) 168; Taylor v. Blake, 109 Mass. 518; Hodd’s Gase, Phil. (N. Oi) Eq.97; Micklds Case, 10 G. E. Gr. 53; Ghism v. Keith, 1 Hun 589).</p> <p>A contingent remainder cannot be seized on execution. (Allen v. Scurry, 1 Yerg. 86; Hargan v. Biehardson, Hud. 62; Penn v. Spencer, 17 Gratt. 85; Watson v. Hodd, 68 N. O. 528; Jackson v. Middleton, 52 Barb. 9; Perkins v. Clock, 3 Head 784; Allston v. Bank, 2 Hill Gh. 242 ; Baker v. Gopenbarger, 15 111. 103; Bidgeway v. Underwood, 67 III. 430; Striker v. Mott, 28 N. Y. 82; see Lockwood v. Nye, 2 Swan 515; Payn v. Beal, 4 Henio 405; Woodgate v. Fleet, 44 N. Y. 1; Sheridan v. House, 4 Kbb. Ap. 218; Bolton v. Stretch, 3 Stew. Eq. 536).</p> <p>What contingent interests pass under an insolvent or bankrupt assignment, see Inkson’s Trusts, 21 Beav. 310; Ivison v. Gassiot, 27 Eng. L. & E. 483; Huggan’s Trusts, L. B. (8 Eq.) 697; Mitchell v. Hughes, 6 Bing. 689 ; Burn v Carvalho, 1 Ad. & El. 888; Gibbins v. Eyden, L. B. (7 Eq.) 371; Higden v. Williamson, 3 P. Wms. 131; Mudge v. Bowan, L. B. (3 Exch.) 185; Blake-mords Case, L. B. (5 Oh. Hiv.) 872; Havids Case, Mont. 297; Naden’s Case, L. B. (9 Oh.) 670; Nimmo v. Hams, 7 Tex. 26; Outcalt v. Van Winkle, 1 Gr. Oh. 518; Sanford v. Lackland, 2 Hill. 6; Krumbaar v. Burt, 2 Wash. G. G. 406; Kimie v. Winston, 56 III. 56; Banks v. Ogden, 2 Wall. 57; Butler v. Merchants Ins. Co., 8 Ala.146; Shay v. Sessaman, 10 Pa. St. 432; Moth v. Eróme, Amb. 894; Vizard’s Tntsts, L. B. (1 Eq.) 667, (1 Gh.) 588; Lee v. Olding, 2 Jur. (N. S.) 850; Bash’s Estate, 2 Pars. 160; Stucker v. Harvey, 1 Miles 247; Shaw v. Steward, 1 A. & E. 300; Grow v. Creditors, 81 Gal. 828 ; Bowan v. Harrison, 2 Pug. 503.</p> <p>For instances of assignments of expectancies, &c., under statutory provisions, see Moore v. Littel, 49 Barb. 488, 41 N. Y. 66; Sheridan v. House, 4 Abb. Ct. of App. Hec. 218; Stover v. Eydeshimer, 3 Keyes 620; Qoodell v. Hibbard, 82 Mich. 47; 4 Kent *512; Turpin v. Turpin, Wythe 22 (137); Lawrence v. Bayard, 7 Paige 70; Laeland v. Nevins, 3 Mo. App. 835. — Rep.</p>

<p>1. Mortgaged premises -were sold, and a decree for deficiency taken against the mortgagor. Thirteen days before such sale, the mortgagor conveyed all his lands, valued at $50,000, to his two sons, one of them a minor, in satisfao-faction of an alleged indebtedness of $8,000 to them, no other debts being shown. — Held, fraudulent as against the mortgagee.</p> <p>2. Although an answer, under oath, denying fraud, be not overcome by the testimony of two witnesses, or what is equivalent thereto, yet such answer, if it contain admissions of facts from which fraud follows as a natural and legal, if not a necessary and unavoidable conclusion, does not disprove such fraud, (a)</p> <p>(a) Note. — See SayreY. Fredericks, 1 0.12. Or. SOS; Umov. Camp, Walk. Oh. ¿27. — Rep.</p>

Petition for divorce. On final hearing on pleadings and proofs The chancellor, after reviewing the testimony, concluded that the adultery of the wife had been sufficiently proved to decree a divorce in the husband’s favor. He then said:

<p>1. A solicitor who is a party to a suit and appears in his own behalf, is entitled to the allowances made by the fee bill for his services therein, except a retaining fee.</p> <p>2. Certain items of costs and their taxation and allowance considered.</p> <p>3. The act of 1879 (P. L. of 1879 p. 10S) only applies to the clerk’s fees on papers bearing specified endorsements, and not to affidavits of verification and schedules attached to bills or answers.</p> <p>Note. — Officers may not detain papers or records until their fees are paid. Anon., Dickinson’s Free. 24; Taylor y. Lends, 2 Ves. Ill; Hayne y. Waits, S Swanst. 98 ; Wait v. Schoonmaker, 15 Sow. Pr. 450 ; Young y. Sutton, 2 V.& B. 865 ; Bex v. Bury, Doug. 185, note ; see Owen’s Case, 2 Ves. 25 ; Farewell y. Coker, 2 P. Wms. 460 ; nor the body, after a habeas corpus, Sopman y. Barber, 2 Sir. 814.</p> <p>A party not a practicing attorney or solicitor cannot be entitled to costs for practicing. French y. Morgan, 1 Sogan 280 ; Stewart y. N. Y., 10 Wend. 597; People y. Steuben, 12 Wend. 200 ; Verplanck y. Mercantile Ins. Co., 1 Edw. Ch. 46 ; Qülis y. Solly, 19 Ala. 668. In Cordon v. Scott, 2 Bank. Beg. 28, a party serving the subpoenas on his own witnesses was held entitled to the costs therefor. See Anon., Sal. Dig. 240 g 8.</p> <p>Nor one pretending to be an attorney, but who has never been admitted. Coates v. Sawkyard, 1 Buss. & Myl. 746 ; Willett v. Lord Clifton, Olassc. 254 ; Sumphreys y. Saroey, 1 Bing. N. C. 62; Jones v. Sayman, Bam. 48; Ames y. Oilman, 10 Mete. 239; Perkins v. McDuffee, 68 Me. 181; Tedrick y. Miner, 61 III. 189 ; Bobb v. Smith, 8 Scorn. 48 ; see Stevens y. Fuller, 55 N. S. 445.</p> <p>A solicitor’s being temporarily uncertificated will not estop him. Jones’s Case, L. B. (9 Eg.) 68; Prior y. Moore, 2 M.& S. 605; see, however, Sparling y. Brereton, L. B. (2 Eq.) 64 ; Angelí’s Case, 6 D.&L. 144 ; Fullalove y. Parker, 8 Jur. (N. 8.) 1078; Young y. Dowlman, 8 You. & Jer. 24; nor affect the rights or liabilities of the parties to the suit, who are not attorneys, Beader y. Bloom, 10 Moore 261, 8 Bing. 9; Sopds Case, L.B. (7 Ch.) 766.</p> <p>An admission in another court has sometimes been deemed sufficient. Wilkinson v. Diggell, 1 B.& C. 158 ; Sails v. Lea, 10 Q. B. 940; see Evans v. Dum-combe, 1 Or. & Jer. 872 ; Sill v. Sydney, 7 Ad. & El. 956.</p> <p>Attorneys who are partners should all be admitted in the courts in which they practice. Willett y. Lord Clifton, Classc. 254 / Sittson y. Browne, 8 Col. 30A. Yet it seems sufficient to recover, that one of them has been admitted in the court where the services were rendered. Ardem y. Tucker, 4 B. & Ad. 815 ; JHarland v. Lilienthal, 53 N. Y. 438 ; Tamer v. Beynell, 14 C. B. {N. 8.) 328 ; Meddowaroft v. Holbrooke, 1 W. Bl. 50; see McGill v. McGill, 2 Mete. (By.) 258; Klingensmith v. Kepler, 2nd. 341; Jones v. Page, 44 Ala. 657.</p> <p>The omission to obtain a license from the United States does not disqualify an attorney as to costs. Hamngton v. Edwards, 17 Wis. 586 ; nor the omission of a stamp from his certificate, Middleton v. Ghambers, 1 M. & G. 97.</p> <p>Proceedings against one not an attorney, if he held himself out to the plaintiff as such, will not be set aside. Lloyd v. Fenton, Hay. & Jon. 35.</p> <p>In a suit against an attorney he cannot conduct his defence both in person and by attorney. Bobinson v. Palmer, 2 Allen (N. B.) 223 ; Moseati v. Lawson, 1 M. & Bob. 454; New Brunswick B. B. v. Conybeare, 9 H. of L. Gas. 711; but see Bolán v. Egan, 2 Breo. 426 ; Johns v. Bolton, 12 Pa. St. 339; Branson v. Caruthers, 49 Cal. 374; Gobbett v. Hudson, 1 El. & Bl. 11.</p> <p>An executor, administrator, guardian or trustee, who is also an attorney, cannot recover for professional services rendered the estate. 3 Wms. on Ears. (6th Am. ed.) 1854 (y) &c., 1861 (m); Willard v. Bassett, 27 111. 37; Kefs Estate, 5 La. Ann. 567; Allen v. Jarvis, L. B. (4 Gh.) 616; Spinks v. Davis, 32 Miss. 152; Christophers v. White, 10 Beav. 523; Moore v. Frowd, 1 Jur. 653; Ontario v. Winnaker, IS Grants Oh. 443; Meighen v. Bell, 24 Grant’s Gh. 503; Broughton v. Broughton, 5 De G. M. & G. 160; Morgan v. Hannas, 49 N. Y. 667 ; but see Stanes v. Parker, 9 Beav. 388, and cases in note; Harris v. Martin, 9 Ala. 895; Morgan v. Nelson, 43 Ala. 586 ; Mamma’s Account, 5 Pa. L. J. Bep. 424 ; Scott v. State, 2 Md. 284 ; Clash v. Carton, 7 Jur. (N. S.) 441; Hanson v. Baillie, 2 Macq. 80 ; Teague v. Corbitt, 57 Ala. 529 ; Welgds Case, 1 Fed. Bep. 216.</p> <p>The rule does not apply when such costs are not payable out of the irust funds. Col. Co. v. Cameron, 24 Grants Ch. 548.</p> <p>The mayor of a city has been held competent to act as its attorney. Niles v. Muzzy, S3 Mich. 61. See Gibson v. Zanesville, 31 Ohio St. 184; Powers v. Decatur, 54 Ala. 214; but in Yin. Abr. Attorney (k), it is said that in an action by the commonalty of a town, one of the commonalty cannot appear as attorney for the commonalty, for lie is party to the action; a statute prohibiting a director of a bank to appear as its attorney was deemed constitutional (West Feliciana R. B v. Johnson, 5 How. {Miss.) 273); so brokers who were also attorneys were held not entitled to charge counsel fees for services about the business of their employer in relation to lands in their hands as such brokers (Walker v. American Nat. Bk., Jfi N. 7. 659 ; Dyer v. Sutherland, 75 111. 588) ; nor can a receiver act as his own counsel so as to charge the estate for his services {Bank of Niagara Case, 6 Paige 218; McCourky v. Downs, MS. N. J. Chan. May Term, 1880 ; see Adams v. Woods, 8 Cal. 821); nor can one member of a partnership who is an attorney, charge the others for professional services about the firm’s affairs, either before or after dissolution {Milburn v. Codd, 7 B. & C. 419 ; Van Duner v. MoMillan, 87 Qa. 299; McCrary v. Buddick, 88 Iowa 521); nor can an attorney who is a mortgagee recover his costs on his own foreclosure {Sclater v. Cottam, 8 Jur. {N. S.) 630 ; Patterson v. Donner, 48 Cal. 869); nor can a solicitor who has an interest in attending to a cause, charge for his services without an express agreement {Martin v. Campbell, 11 Bieh. Eq.205 ; see Deere v. Robinson, 7 Hare 283); but he would be liable for costs (Voorhees v. McCartney, 51N. T. 887 ; Cone v. Donaldson, 47 Pa. St. 868); a director of a corporation who brought suit as an attorney against such corporation, was held entitled to costs {Chnstier. Sawyer, 44 N.H.298); as to a stockholder sustaining such relation, see {Spence v. Whitaker, 8 Port. 297).</p> <p>An attorney can recover ordinary witness fees when he offers himself as á witness in his own case {Leaver v. Whalley, 2 Dowl. 80 ; Taaks v. Schmidt, 25 How. Pr. 840); or is called in another’s case during his regular attendance at that term {Parks v. Brewer, 14 Pick. 192 ; Marshall v. Parsons, 4 Jur. 1017; Abbott v. Johnson, 47 Wis. 289); but fees when so in attendance were refused in McWilliams v. Hopkins, 1 Whart. 276; C-ummer v. Huff, 1 Wend. 25; Jones v. Botsford, 1 Pug. & Bar. 581; see Reynolds v. Walker, 7 Hill 144).</p> <p>Where the cause was conducted by one member of a firm of attorneys, the fees of another member called as a witness were allowed (Butler v. Hobson, 5 Bing. N. 0.128,1 Am. 424).</p> <p>Query, whether an attorney who calls himself as a witness can now recover his fees, since other parties calling themselves cannot (Grinnel v. Dennison, 12 Wis. 402 ; Hale v. Merrill, 27 Vt. 788; Nichols v. Brunswick, 8 Cliff. 88; Parker v. Martin, 8 Pittsb. 166; Grub v. Simpson, 6 Heisk. 92; Deleomyn v. Cham-berlin, 48 How. Pr. 409 ; Stratton v. TJpton, 86 N. H. 581; see Howes v. Barber, 18 Q. B. 588).</p> <p>It seems a co-defendant who attended solely as a witness may recover (Barry v. McGrade, 14 Minn. 286); so if the plaintiff call the defendant (Harvey v. Tebbutt, 1 J.&W. 197; Goodwin v. Smith, 68 Ind. SOI; Leeds v. Amherst, 14 Sim. 857; Young v. JEnglish, 7 Bern. 10; see Hutchins v. Hutchins, Ir. L. B. (10 Bq.) 458). If an attorney refuse obedience to a subpcena he can be punished for contempt as a witness only, and cannot be deprived of his office as attorney (Com. v. Newman, 2 Phila. 262).</p> <p>If an attorney bears any other relation to the subject matter of the suit (e. g.) as an agent, auctioneer, &c., the court will not exercise summary jurisdiction over him (Cocks v. Harman, 6 Bast 404; Grubb’s Case, 5 Taunt. 206; Edwards v. Hodding, Id. 815 ; Toms & Moords Case, 3 Ch. Cham. 41; see Dickson v. Wilkinson^ De G. & J. 508 ; Carroll’s Case, 2 Ch. Cham. 828 ; Allen v. Aldridge, 6 Beau. Jfll; Hawes v. Bowes, 7 Sim. 624; Weeks on Attys. 77, 94 ; Smith v. McLendon, 59 Qa. 528 ; Pennock v. Puller, 41 Mich. 158 ; 17 Am. Law Beg. (N. S.) 759 and note).</p> <p>An attorney who is a party to a suit is entitled to recover his costs (Qugy v. Brawn, L. B. (1 P. C.) 4U, reversing S. C. 11 Low. Can. 409 ; Jervis v. Dewes, 4 Dawl. P. C. 764).</p> <p>He can recover nothing for loss of time (Pritchard v. Walker, 8 C.&P. 212 ; Collins v. Codefroy, 1B. & Ad. 950 ; see Corley v. Moore, Classe. 886; Severn v. Olive, 8 Irish Law Bee. 198).</p> <p>He is not obliged to pay for a plea where he himself is plaintiff (Anon. Sayer 77).</p> <p>The institution of county courts does not destroy an attorney’s privilege as to suing and being sued in his own court, and subject him to costs for not recovering more than the amount recoverable in the inferior court (Lewis v. Sanee, 5 D. & L. 641, H Q• B. 981; Jeffreys v. Beart, Id. 61/B ; Jones v. Brown, 8 Baxh. 889; Johnson v. Bray, 8 B. & B. 698; Borradaile v. Nelson, 14 G. B. 655; but see Bailey’s Case, 1 Johns. Cas. 38 ; Varían v. Ogilvie, 3 Johns. 450; Boulton v. Subbard, 6 Johns. 888; Walsh v. Saekridet', 7 Johns. 537; Foster v. Carnsey, IS Johns. 465; Wood'T. Gibson, 1 Cow. 597; Draper v. Beasley, 8 U. C. Q. B. 860). — Rep.</p>

<p>Bill to remove cloud from title. Ou demurrer and plea.</p>

<p>The separation of a husband and wife, acquiesced in by the wife, and which she did much to bring about, however long continued, does not constitute desertion to authorize a divorce on her petition. Such a separation, however, would become desertion from the time the complaining party makes sincere overtures to terminate it.</p>

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

<p>A testator gave his homestead farm to three of his children equally, and further gave legacies to his widow in lieu of her dower, “ secured on good freehold security, and the interest thereof paid half-yearly to her;” and also the interest on a legacy to a daughter for life. He then, after the payment or securing of the above-named legacies, gave all the residue of his estate, including the remainders of the legacies, to the three first-named children. One of them and a person not of the family were the executors. They had never filed any account. On a hill for a partition of the farm by such executor — Held,</p> <p>(1) That the legacies were charged on the whole farm, and the amount due thereon ought to be ascertained before a sale was ordered on partition.</p> <p>(2) That the complainant, who, by purchase from his brother, since testator’s death, had acquired another third of the farm, and had occupied it since then, could not be called to account by the defendant, for the one-third of the proceeds of the farm during his occupancy, without a cross-bill.</p> <p>(3) That since the amount of the personal estate, and the extent of the deficiency thereof to satisfy the debts and legacies, did not appear, a sale would not be ordered until after the executors have settled their account in the orphans court.</p>

<p>A parent gave testamentary power to her executors to sell a certain house and lot, and to set apart $3,000 of the amount derived therefrom for the sole and separate use of her daughter Julia [the wife of C.], who was to receive the interest and income thereof during her natural life, and at her death it was to be paid to the persons who at that time might be her heirs at law; and further provided that, if Julia should so elect, the fund might be invested in a house and lot, which she might select, and which should be conveyed to her; with a further declaration that Julia should enjoy the same free from the control of her husband.</p> <p>Testatrix’s house and lot have been sold. Julia’s husband is dead, and on bill to compel the executors to pay over to her absolutely the $3,000 — Held, that since Julia could require the executors to purchase a house and convey it to her, for her sole and absolute use and disposition, she is entitled to have the $3,000 paid to her directly and absolutely.</p>

<p>A testatrix, after giving several legacies, gave the residue of her estate to her executor, to be by him distributed to such charitable or religious societies or associations or corporations, or for such other benevolent purposes, as he might see fit. Her next of kin were an uncle D. and two aunts, Mrs. Gr. ana Mrs. E. Another aunt was dead, leaving children — Samuel, Alexander and the complainants — surviving. The probate of the will in New York, where testatrix lived, was opposed by D. and others. Pending the contest, Samuel falsely represented to Mrs. G. and Mrs. E. that D. had abandoned his opposition to the will, and promised that if they would make him their attorney to recover their interests in the estate, and would divide equally with him whatever he should recover for them as next of kin, he would attend to the litigation, pay all the costs and expenses himself, and divide the sum he received from them equally •with his brothers and sister, the complainants, who, he stated, were poor and needy. Thereupon Mrs. G. and Mrs. E. gave him a power of attorney to act for them in the premises. D. continued his opposition to the will, and the contest was eventually compromised by admitting the will to probate, but declaring the residuary clause void. Mrs. K. and Mrs. G. gave one-half of what they received, as next of kin, to Samuel, who refused to divide it equally with complainants. — Held,</p> <p>(1) That Samuel’s promise to Mrs. E. and Mrs. G. to so divide with complainants was enforceable in equity, and that they were entitled to an account of his expenses about the litigation and to their several shares of the amount received by him under the agreement. .</p> <p>(2) That neither Mrs. E. nor Mrs, G. were necessary defendants or complainants, although they might have been proper complainants.</p>

<p>By the direction of a committee selected to represent and protect the bondholders of a railroad corporation, in the sale of the property and re-organization of the company, a circular was issued requesting each bondholder willing to come in, to deposit his bond with a designated trust institution in New York, together with the amount of a specified assessment to defray the expenses of the proceedings, and to obtain therefor the receipt of such trust institution, countersigned by the representative of the committee to be thereafter designated. The circular further stated where the office of the committee was in New York, and was signed by the members of the committee, including Howard P. Dechert, “ secretary,” and required such deposit to be made on or before December 31st, 1879. The complainant was the holder of a bond for $1,000, which she took to the trust company for deposit, together with the amount of her assessment, on January 13th, 1879. The trust company refused to receive it, and referred her to the committee, whereupon she took it to the designated office of the committee, where Mr. Dechert received it and her assessment, giving her a receipt of the committee therefor. Three days afterwards, Mr. Dechert, as secretary, deposited with the trust company this bond and four others, taking therefor a certificate in his individual name. The sale was consummated, the company re-organized, and are about to issue new bonds in lieu of the old ones, but refuse to acknowledge the validity of complainant’s receipt or her claim to either her old bond or a new one, on the ground that she did not deposit the bond with the trust company. — Held, that she is entitled to relief, and it is no objection that the present holder of complainant’s bond is not made a party, because, for aught that appears, either the committee or its agent, the trust company, holds it; or if the secretary of the committee has misappropriated it, such act does not prejudice complainant; nor does it appear that any one having an interest has been omitted, nor that complainant failed in a strict compliance with the instructions of the committee’s circular, as to deposit with the trust company, because the committee waived such requirements by accepting the bond and assessment.</p>

Bill to foreclose first mortgage. Cross-bill of judgment creditor of mortgagor to redeem. On final bearing on pleadings and proofs.

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

<p>A bill to establish a resulting trust averred merely that 0. (the husband) was married to K. in 1827, and that lands were conveyed to him in 1831, but that the consideration therefor was paid by the wife “out of her own estate.”— JHeld, insufficient. The court cannot infer, from such averment, that the wife had a separate estate, and that the consideration for such land was paid therefrom, or for its benefit. As the law stood at her marriage, her properly, other than her separate estate, vested in her husband, and even if the money was her separate estate, she might have given it to her husband.</p>

<p>A testator gave the interest on certain funds, which were to he securely invested on bond and mortgage, to his wife for life or widowhood, for the support of herself and their son, with a proviso that on her remarriage, her right to such interest should cease, and it should be payable for the support of the son only; and if she should remain unmarried until the son attained his majority, he should be entitled to one-half of the income for his own use ; and that at her decease all the estate should go to the son absolutely, so soon as he should marry or become of age, but if he should die without heirs, or before he came into full possession, then over. The widow and two others were appointed executors. The testator died in 1840, and his widow, who, with one of the other appointees, proved the will, remarried in 1847. In 1848, the executors who proved the will filed their final account, and invested the fund as directed by the will, until its repayment to the executor in 1873, when it was invested in first mortgage on city lots, then worth three times as much as the fund invested. Afterwards, the mortgagor became insolvent, and the executor, on foreclosure, was obliged to buy in the property, in order to protect the fund. The son came of age in 1860. He was married to complainant in 1858, and died in 1864, leaving a child bom of the complainant in 1860, who is still living. — Held,</p> <p>(1) On construction of the will, that the son was entitled to the entire estate on the remarriage of the widow, and the gift over was defeated by the son’s leaving lawful issue surviving at his death. — Held, also,</p> <p>(2) That the executor’s discretion as to the security of the investment in 1873 appearing to have been fairly exercised, and he having obtained advice from reputable counsel that the principal of the fund did not go to the son unless he survived his mother, he is guilty of no breach.of trust, either because he continued to hold the fund after the gift over was defeated, or because of the investment in 1873, and that the land is the fund.</p>

<p>Lands of an insolvent decedent were sold, free of Ms widow’s dower, to pay Ms debts. To secure such dower, the purchaser gave the administrators a mortgage for $2,700, the interest whereof was payable to the widow for life, and the principal, at her death, to her husband’s heirs at law. The purchaser also gave another mortgage on the premises, prior to the widow’s, which was afterwards paid off. The widow’s dower was, in fact, only $1,700, and the purchaser afterwards borrowed $2,600 of the complainant. By an agreement with the administrators, without the privity or consent of the widow, the coinplain-ant’s mortgage was to be the first lien on the premises — the administrators agreeing with the lender to indemnify him against the widow’s claim to priority ; and this agreement was consummated by canceling the widow’s mortgage, and substituting another for $1,700, in lieu of it, subsequent to complainant’s. — Held, in a suit for foreclosure of the lender’s mortgage, that the rights and priority of the widow were unaffected thereby, but that relief could be obtained by her, in the suit, only by cross-bill.</p>

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

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

<p>A foreign corporation, without any authority whatever, laid a pipe for transporting oil on the bottom of a navigable river, on lands belonging to the state, and underneath a draw-bridge of complainant. At that point the channel was so deep and wide as that the laying of the pipe there would not interfere with the bridge. A preliminary injunction to prevent such pipe-laying was denied, because,</p> <p>(3) The pipe had been laid before the application for the injunction was made.</p> <p>(2) The lands where the pipe crosses the bridge belong to the state, and the complainants have no legislative authority to reclaim them.</p> <p>(3) The pipe, as laid, does not interfere with or obstruct the maintenance and operation of the draw-bridge nor any lawful filling.</p> <p>(4) The complainant’s franchise of carrying oil is not exclusive, and therefore does not prevent any other company from doing so, if not in contravention of the company’s franchise, much less so when it appears the defendants intend to transport only their own oil.</p>

<p>After complainants had constructed their railroad tracks through a city, part of the lands which its tracks traversed was condemned by the city, in order to cross them with a street. This necessitated a bridge, which was sixteen feet above the tracks. The bridge, although built by the company, was paid for by the city. Subsequently, the defendants, by virtue of a resolution passed by the city authorities, laid a pipe for transporting oil along and underneath the surface of the street, and crossed complainants’ tracks at and on a level with, and alongside of, the bridge. A preliminary injunction to prevent such crossing, applied for by the railroad company and its receiver appointed by this court, was refused, because,</p> <p>(1) The pipe had been laid before the application for the injunction was made.</p> <p>(2) To justify its allowance, there is shown no irreparable injury, either from leakage of the oil to be transported, which is highly inflammable, or interference with the elevation of the bridge, if complainants desire to raise it.</p> <p>(3) The complainants have no monopoly in carrying oil, and hence cannot object to lawful competition.</p> <p>(4) No contempt towards this court appears by defendants’ action.</p>

<p>1. A valid trust of personal property may be created by mere spoken words, and proved by parol evidence.</p> <p>2. A valid trust of a mortgage debt may be created by parol, for though a trust thus created will not pass any interest in the land held in pledge, yet it is good as to the debt, and will entitle the cestui que trust to the payment of his debt out of the proceeds of the sale of the land.</p>

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

<p>1. In determining the question whether a deed, absolute on its face, is what it purports to he, or a mortgage, the fact that the parties, after the execution of the deed, still understood that the relation of creditor and debtor continued, in respect to the debt on which the deed is founded, must generally be regarded as decisive in showing that the instrument was intended to be a mortgage.</p> <p>2. The only infallible test of the value of a merchantable article is what it is actually sold for at a fair sale.</p> <p>S. A mortgagee in possession, holding under a deed absolute on its face, who sells the mortgaged premises, is bound to account to his mortgagor at the price at which he sold, though he may be able to show, by the opinion of competent judges, that such price is in excess of their market value.</p>

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

<p>1. Great delay in seeking relief is a good bar to a suit for specific performance.</p> <p>2. Sixty years’ delay constitutes a bar.</p> <p>S. A suitor asking a court of equity to give him the benefit of the exercise of its discretionary power, must show a good conscience, good faith, and rear sonable diligence.</p>

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

<p>On motion for injunction. Heard on bill and order to show cause, no answer being made.</p>

<p>1. To compel the surrender and cancellation of written instruments, which have spent their force and are mere nullities, but which, left in an uncanceled state, may becloud a title, or be used for dishonest purposes, is an ancient and well-established head of equity jurisprudence. A court of equity will assume jurisdiction and compel the surrender of the instrument, or limit its use to such purposes as may seem to it to be equitable, when a suit at law is already pending, if it shall appear that it is doubtful whether the instrument may not be used, in such suit, for a dishonest or inequitable purpose.</p> <p>2. The question whether a deed was intended, by the parties thereto, to operate as a mortgage or as an absolute conveyance, is one that a common law court can neither hear nor determine. It is a question belonging exclusively to equity tribunals, and over which common law tribunals have-no jurisdiction whatever.</p> <p>3. It is a universal principle that a purchase, at a tax sale by one whose duty it was to pay the taxes, shall operate only as an extinguishment of the tax. One man can acquire no rights against another by a neglect of a duty which he owes to the other.</p> <p>4. Where a party, lawfully in the possession of land, under a title which turns out to be defective, makes permanent improvements, in good faith, before he has notice that his title is defective, which materially increases the value of the inheritance, and the actual owner afterwards seeks relief against him in equity, relief will not be given except upon equitable terms.</p>

<p>1. Where preferred stock is issued under a contract or law containing no provision or direction as to what shall be the rights of the holders of it in the distribution of capital when the affairs of the company are wound up, such stock merely has a right to be preferred in the division of profits, and not in the distribution of capital.</p> <p>2. The general corporation act of this state directs that in the distribution of capital the holders of preferred stock shall be first paid, before any distribution is made to the holders of the common stock; therefore preferred stock issued in this state, either under authority of law or under a contract of which the law forms a part, is entitled to preference in the distribution of capital.</p> <p>3. Dividends on preferred stock can only be paid out of the profits; and this is so even when the stock is issued under a guaranty that a dividend of a certain sum shall he paid annually.</p> <p>4. The rule of distribution presented by the corporation act must be observed, whether the affairs of a corporation are wound up by the court or the officers of the corporation.</p> <p>5. A thing which is within the intention of the makers of a statute, is as much within the statute as if it were within its letter.</p> <p>Note. — The case of Kent v. Quicksilver Mining Co., 78 H. Y. 159, on appeals from S. C. IS Him 53, and from Hoyt v. Quicksilver Mining Co., 17 Hun 169, fully discusses the question as to the power of corporate directors, or of a majority of the stockholders, to create and issue preferred stock, so as to bind the minority not assenting to, or acquiescing in, such act, and denies such general power, whether attempted to be exercised as a means of securing money borrowed for the use of the corporation or otherwise. Folger, J., says, on page 181: “ Citations are made to us for the converse of this; but they do not come up — sometimes in their facts, sometimes in their declarations — to the necessity of the proposition. Either it is where the capital is not limited, and it is new shares that may be issued with a preference, and where there'is express power to borrow on bond and mortgage (S JRedf. on R’ways, chap. S3 sec. 41 %37; Harrison v. Mex. R. W., IS Rng. Rep. 793); or the amount of the capital has not been reached, and such stock is issued therefrom (Headhunt v. Savannah R. R., 43 Ga. 53/ Jjothan v. Tison, 54 Id. 139); or there was legislative authority (Davis v. Proprietors, 8 Mete. SSI / Rutland R. R. Co. v. Thrall, 35 Vt. 545); or a restriction to authorized capital, and there was unanimous consent of the stockholders (Prouly v. U. S. and N. I. R. R., 1 Hun 663 ; 43 Ga. 53, supra); or there was power to redeem, which was a transaction in the nature of a debt (Westchester &a. R. R. Co. v. Jackson, 77 Pa. St. SSI); or the opinion was obiter (Bates v. Androscoggin R. R. Co., 43 Maine 431) ■ or it was the case of a subscription for stock, with a condition for interest until the corporation was in operation (Richardson v. Vt. and Mass. R. R. Co., 44 Vt. 613) ; or it was an action on a subscription more favorable to defendant than to other subscribers, and it was held that defendant could not set up the lack of equality (Evansville R. R. Co. y. Rsansville, 15 Ind. 395); or a solemn determination of this question was not necessary for the disposal of the case (Wittistm y. U. S. and N. I. It. B. Co., IS Allen IfiO); or the issue was authorized hy the articles of association (In re A’D. St. Nav. and Col. Co., %0 L. It. (Eg.) SS9); or there was full knowledge on the part of all concerned (Lockhart v. Van Alstyne, SI Midi. 81); or the power in the corporate body was conceded, and it was denied that it existed in the directors (McLaughlin v. D. and M. a. it., 8 id. ioo).’></p> <p>See, further, Stevens v. South Levon Co., 9 Mare 81% ; Menry v. Great Northern Co., 1 Le G. & J. 606 ; Sturge v. Eastern Union Co., 6 Le G. M. & G. 158 ; Coey v. Belfast JR. B. Co., Ir. L. B. (% Com. Law) 11%; Dickinson v. C. and O. B. B., 7 W. Va. 390; Bryant v. Ohio College, 1 Oin. S. C. 67; Covington y. Covington Bridge Co., 10 Bush 69; King y. Ohio and Miss. B.B, 9 Beporter 481; Green’s Bricés Ultra Vires (%d Am. ed.) 164. — Hep.</p>

<p>On motion to discharge order.</p>

<p>1. A purchaser of the mere equity of redemption, in premises covered by a usurious mortgage, who purchases subject to the lien of the mortgage, cannot set up usury as a defence.</p> <p>2. A material and controlling fact, which is clearly and fully averred in the bill and not denied or alluded to in the answer, must be taken as confessed.</p>

<p>The sixty-third section of the corporation act is in these words: “ In case of the insolvency of any corporation, the laborers in the employ thereof shall have a lien upon the assets thereof for the amount of wages due to them respectively, which shall be paid prior to any other debt or debts of said company; and the word ‘laborers’ shall be construed to include all persons doing labor or service of whatever character, for or as workmen or employees, in the regular employ of such corporation.” — Held—</p> <p>(1) That the lien so given comes into existence as of the date which the court adjudges to be the time when the insolvency occurred which gives it jurisdiction.</p> <p>(2) That persons holding claims for wages, who are not in the employ of a corporation at the time when it becomes insolvent, are not within the policy ot the act, and therefore have no lien upon the assets thereof.</p> <p>(3) That the presentation of a claim, embracing other items than charges for wages, does not work a forfeiture of the right of lien for the wages, given by the statute.</p> <p>(4) That the laborers in the employ of a corporation at the time of its insolvency have a lien upon the assets thereof for the whole amount of wages due to them respectively, no matter how long before the date of insolvency the wages may have accrued.</p> <p>(5) That the acceptance of a promissory note, without security, does not operate as a waiver of the lien given by the statute, unless an intention to relinquish such right is unmistakably manifested.</p> <p>(6) That the lien given for wages does not include interest which has accrued thereon before the lien attaches.</p> <p>(7) That the proving of a claim for a sum in excess of the amount really due does not work a forfeiture of the right of lien.</p> <p>Note. — Ordinarily, a servant is not entitled to a lien or preference in payment for his services (Hoover v. Epler, 52 Pa. St. 522; Lems v. Patterson, 20 La. Ann. 294)-, nor the officers of a corporation (Croton Ins. Co. Case, S Barb. Ch. 642); nor tort-feasors (JDwind v. Piske, 9 Me. 21; Madden v. Kempstw, 1 Camp. 12; Lempriere v. Pasley, 2 T. B. 485; Hotehkiss v. Hunt, 49 Me. 212; see Hamilton v. Buck, 36 Me. 536; Horsey v. Langworthy, 3 Oreme (la.) 341) ; nor a creditor on his debtor’s chattels in his possessien (Allen v. Megguire, 15 Mass. Jj90; Bremer v. Pitkin, 11 Pick. 298; Owen v. Dixon, 17 Cornn. 492, Bailey v. Boss, 20 N. IT. 802; see St. Louis v. Begenfuss, 28 Wis. 144).</p> <p>Within the meaning of statutes giving — (1) servants, (2 )laborers, (8) employees, (4) mechantes, (5) artificers and (6) operatives — preferences for wages for work done, the following have been deemed (1) Servants : An overseer and book-keeper (Hovey v. Ten Broeck, 3 Boberts. 816); a superintendent ( Wickham, v. PLardy, 5 Jur. (N. S.) 871; Cumberland B. B. v. Slack, 45 Md. 161); an assistant superintendent (Vincent v. Bamford, 1 Jon. & Spen. 506; see Bryan v. State, 44 Oa. 328); a mining boss (Del. Canal Co. v. Carroll, 89 Pa. St. 874); a civil engineer (Williamson v. Wadsworth, 49 Barb. 294; see Callahan v. B. & M. B. B., 28 Iowa 562; Pa. B. B. v. Leuffer, 84 Pa. St. 168); a clerk and foreman (Ex parte Humphreys, 8 Deac. & Chit. 114; Salina v. Seitz, 16 Ban. 148; Abbott v. Steam Packet Co., 4 Md. Ch. 810); a traveler engaged at an annual salary (Ex parte Neale, 1 Mont. & Mac. 194; see Beg. v. Tite, Leigh & Cave 29 ; Beg. v. Negus, L. B. (1 C. G.) 84); the mate of a vessel (Ex parte Homborg, 6 Jur. S9S); the housekeeper of a hotel (Lawler v. Linden, Ir. L. B. (10 Com. Law) 18S); a bar-keeper (Boniface v. Scott, 8 Serg. & Bawle 351); a journeyman (Mart v. Aldridge, Comp. 54, Lofft 403; see Landry v. Blanchard, 20 La. Ann. 173; Ex parte Gordon, 1 Jur. (N. S.) 683; Jobsen v. Boden, 3 Pa. St. 463 ; Phillips on Mech. Liens $ 50); a designer (Ex parte Ormerod, 1 D. & L. 825); an oven-placer in a pottery (Willett v. Boote, 6 JET. & N. 26); a clerk whose wages are not all due (Thomas v. Williams, 1 A. & E. 685).</p> <p>(2) LABORERS: A railroad workman with his team (Warner v. Hudson Biver B. B., 5 How. Pr. 454; but as to the team, see Atcherson v. Troy B. B., 6 Abb. Pr. (N. S.) 329 ; Barnard v. McKenzie, 4 Gol. 251; Hill v. Newman, 38 Pa. St. 151; Heebner v. Ghave, 5 Pa. St. 115; Wentworth’s Appeal, 82 Pa. St. 469; Hope Mining Go., 1 Sawy. 710; Ooburn v. Kerswell, 35 Me. 126; Me-Orillis v. Wilson, 34 Me. 286 ; Batch v. N. Y. & O. B. B., 46 N. F. 521; Brusie v. Griffith, 34 Cal. 302; Branin v. Conn. B. B., 31 Vt. 214); a laborer, although also a mechanic (Adams v. Goodrich, 55 Ga. $88 ; see Myers y. Buchanan, 4-6 Miss. 897); hoisters of materials (Tmard y. Hughes, 8 Bhila. $61); one employed by the owner to cook for his workmen (Young y. French, 85 Wis. Ill; contra, Sullivan’s Appeal, 77 Pa. St. 107; McCormick v. Los Angeles Co., Jfi Cal. 185); a pilot, who was also a contractor (Hanson v. Hiles, 84 Iowa 350; see Cook v. Parham, $4 Ala. $1; Dudman v. Dublin Board, Ir. L. B. (7 Com. Law) 518); a miner who mines coal for a certain price per ton (Penna. Coal Co. v. Costello, S3 Pa. St. $41; Seed’s Appeal, 18 Pa. St. $35); all who work with their own hands (Seiders’s Appeal, 46 Pa. St. 57; Ingram y. Barnes, 7 El. & Bl. 115; Jacobs v. Knapp, 50 JV. H. 71; Floyd v. Weaver, 16 Jur. $89; Cochran v. Swan, 58 Ga. 89; Bobbins v. Bice, 18 N. H. 507) ; the digger of a well at a certain price per foot (Lowther v. Badnor, 8 East 118); house painters (Martins v. Nelson, 51 IU. 4%®); a reporter and city editor of a newspaper (Herries y. Norvell, 17 Am. Law Beg. (JV. S.) 97 and note); a drayman (Watson v. Watson Co., 3 Stew. Eg. 588).</p> <p>Employees or laborers of a sub-contractor may be included. Branin v. Com. B. B., SI Vt. 214; Mnndt v. Sheboygan B. B., 31 Wis. 451; Peters’v. St. Louis B. B., 24 Mo. 586; Kent y. New York Central B. B., IS N. Y. 628; Geminaban v. St. Louis B. B., SO Mo. 546; Cosgrove v. Tebo B. B., 54 Mo. 435; Mart v. Boston B. B., 121 Mass. 510; Conant v. Van Shaick, 24 Barb. 87; Winslow v. Urquhart, 39 Wis. 260; Bedmond v. Galena B. B., Id. 426.</p> <p>But see Arbuekle Y. Illinois B. B., 81 111. 429 ; Cairo B. B. y. Watson, 85 III. 531; Gallaghar y. Ashby, 26 Barb. 143; Millered v. Lake Ontario B. B., 9 Mow. Pr. 238; Lake Erie B. B. v. Eckler, IS Ind. 67; Indianapolis B. B. v. O’Beily, 88 Ind. 140; Marks v. Indianapolis B. B., Id. 44fi i Utter y. Crane, 37 Iowa 631; Poe v. Monson, S3 Me. 430 ; Jacobs y. Knapp, 50 N. M. 71; Guthrie v. Mornetr, 12 Pa. St. 236.</p> <p>(3) Employees : Counsel who have rendered professional services (Gúmey y. Atlantic and G. W. B. B., 58 M. Y. 358); police officers (Mallory v. United States, 3 Ct. of Cl. 257; see Kimball v. Boston, 1 Allen 417); a laborer on government grounds (Stonels Case, 3 Ct. of Cl. 260) • not one who merely shovels and. loads dirt on a gravel train (JDeppe v. Chicago B. B., 36 Iowa 52); a secretary (Wells v. Smith Minn. JR. JR., 1 Fed. JRep. 270).</p> <p>(4) Mechanics: A vendor of machinery is not a machinist (Kirkpatrick v. Bank of Augusta, SO Ca. 465 ; Schofield v. Stout, 59 Ca. 537); a corporation may be (Loudon v. Coleman, 59 Ga. 653; Phillips on Mech. Lien \ 53; Yellow Biver Co. v. Arnold, 46 Wis. 214; see Kentucky Lead Co. v. New Albany Water Works, 62 Ind. 63); not one who works casually at a trade (Grantham’s Case, 1 Winst. 73).</p> <p>(5) Abtificeks : A weaver of gloves at an agreed price per dozen pairs (Chawner v. Cummings, 8 Q. B. 311; Moorhouse v. Lee, 4 F. & F. 354); a “ butty collier ” (Bowers v. Lovelcin, 6 El. & Bl. 584 ; Sleeman v. Barrett, 2 JHJ.& C. 934; Pillar v. Llynor Co., L. B. (4 C. P.) 752); a vessel iron-plater (Lawrence v. Todd, 14 C. B. (N. S.) 554); one working manually and also superintending others, for weekly wages and a commission (Whiteley v. Armitage, 13 W. B. 144); an overseer in a printing-office (Bishop v. Letts, 1 F. & F. 461).</p> <p>(6) OPERATIVES: An apprentice (Ex parte Steiner, 1 Pa. L. J. Mep. 368; Bedford v. Newark Machine Co., 1 C. E. Or. 117 ; see The Beaver, 3 Mob. Ad. £92; Mason v. The Blaireau, £ Oranch £40; Milligan v. Wedge, 1£ A. & E. 737; New Orleans M. M. v. Harrison, 48 Miss. 11£); or son of a workman (In re Hartman, 4 Bank. Meg. 103; Atcherson v. Troy M. M., 6 Abb. Pr. (N. S.) 388; see Barron v. Collins, 40 Ga. 580); or wife (Thayer v. Mann, £ Cush. 371; see Angulo v. Sunol, 14 Cal 4°£).</p> <p>The following were held to come within none of the classes named: a statute giving redress to “ any person” injured on a railroad, does not include a laborer (Mohbaek v. Pao. M. M., 43 Mo. 187); a statute exempting the wages of railroad employees from garnishment was afterwards extended to all employees who were married. — Held, that railroad employees were embraced in the amendment (Bwrlander v. Milwaukee M. M., £6 Wis. 76; see Johnston’s Estate, 33 P.a. St. 511); contractors (Sharman v. Sanders, IS C. B. 166 ; Ingram v. Barnes, 7 El. & Bl. 115; Miley v. Warden, £ Exch. 59; Lehigh Coal Co. v. Centred M. M. Cov 2 Stew. Eq. 252; Ney v. Dubuque R. R,, 20 Iowa 347; Boutwell v. Townsend, 87 Barb. 205; Oummings v.New York B. B., 1 Lams. 68; Ohapman v. Black River R. R., 4 Bans. 96; Corbin v. Amer. Mills, 27 Conn. 274; Balch v. N. Y. & O. R. R., 46 N. Y. 521; Ailtin v. Wasson, 24 N. Y. 482; Breed v. Nagle, 46 Ga. 112; Wipman v Walker, 9 W. & S. 188; Footman v. Fusey, 45 Ga. 561; Robinson v. Webb, 11 Bush 4U; Chicago R. R. v. McCarthy, 20 111. 385); a physician (Weymouth v. Sanborn, 49 N. II. 171; see BLunter’s Case, 1 Winst. 372); a foreign superintendent of mines {Hill v. Spencer, 61 N. Y. 274; Dean v. DeWolf, 16 Hun 186); a time-keeper of laborers [M. K. & T. R. R. v. Baker, 14 Kan. 563; Snyder v. Gibbons, S Phila. 126); or paymaster (Edgar r. Salisbury, 17 Mo. 271) ■ a consulting engineer (Ei'icsson v. Brown, 38 Barb. 890); a secretary (Coffin v. Reynolds, 87 N. Y. 640; see Richardson v. Abendroth, 49 Barb. 162); an architect {Bank of Pa. v. Gries, 85 Pa. St. 428; Ames v. Dyer, 41 Me. 897; Price v. Kirk, 90 Pa. St.-; Raeder v. Bensberg, 6 Mo. App. 445)-, aliter, where he also superintends the building (Mut. Ben. Ins. Co. v. Bowar.d, 11 C. E. Or. 389 ; Knight v. Noiris, 18 Minn. 478; St. Glair Coal Co. v. Martz, 75 Pa. St. 384; Stryker v..Cassidy, 76 N. Y. 50; see Foushee y. Grigshy, IS Bush 75); the superintendent of a building, who is also the contractor {Blakey v. Blakey, 27 Mo. 39; see Kansas B. JR. v. Little, 19 Kan. 267); the foreman of a tailor (Lauran v. Eotz, 1 Mart. {N. S.) 140); a teacher in an insolvent’s school (Labato’s Case, 2 Mart. (N. S.) 652; see Lollahite’s Case, 1 Winst. 74); a music master (Ex parte Walter, L. B. {15 Eq.) 412); a governess (Todd v. Kerrick, 8 Exch. 151); workmen in an iron foundry, as servants, {Measan’s Case, 5 Binn. 167; Ex parte Crowfoot, 1 Mont. 270) ■ an undertaker {Jones v. Shawhan, 4 W. & S. 257); the guard of a stage-coach {Ex parte Skinner, 3 Deac. & Chit. 332); workmen who work by the piece {Ex parte Orédier, 1 Mont. 264); a surveyor of wood {Blackman’s Case, 6 Chicago L. N. 18); “croppers” {Daniel v. Swearengen, 6 Bieh. (N. S.) 471) ; one who had agreed to build a wall at a certain price and within a certain time {Lancaster v. Oreares, 9 B. & C. 628; McOinness v. Farrington, 43 Conn. 143); an overseer (Must v. Billingslea, 44 Oa. 308; Whitaker v. Smith, 81 H: 0. 340; see Caraker v. Mathews, 85 Oa. 571); one engaged in selling and delivering wood by the cord at a mill, (Wadsworth v. Duke, 50 Oa. 91; see Palmer v. Tucker, 45 Me. 316); a plasterer (Fox v. Mucker, 30 Oa. 585; Parker v. JBell, 7 Gray 489); a mover of buildings (Stephens v. Holmes, 64 III. 336); an agent of an insurance company, in another state (First Hat. Bank v. Joggers, 31 Md. 38); a policeman (Johnson v. Mallet, 8 Winst. 13; see Buttrick v. Lowell, 1 AUen 178; Kim-ball v. Boston, Id. 411).</p> <p>Servants &c., who voluntarily leave, forfeit their lien for wages due (Ex parte Qee, 3 Deae. 563; Ex parte Bennett, 3 Mont. & Ayr. 669; Hapier’s Case, 8 Pug. 300, 3 Pug. 134; Bedford v. Hewark Machine Co., 1 C. E. Or. 117; see Curtis’s Case, 1 Winst. ISO; Sanders’s Case, 8 Mont. & Ayr. 684).</p> <p>Taking a note for the wages is no waiver (Weymouth v. Sanborn, 43 H. H. 171; Clement v. Hewton, 78 III. 487; Laviolete v. Bedding, 4 B. Mon. 81; Globe v. Gale, 7 Blackf. 818; Meeks v. Sims, 84 III. 488; McMurray v. Taylor, 30 Mo. 363; Morrison v. Laura, 40 Mo. 360; Blake v. Pitcher, 50 Md. 453; Prentiss v. Garland, 67 Me. 345; Hutchinson v. Swartsweller, 4 Stew. Eq. 305; White y. JDumpke, 45 Wis. 454; see Hutchins y. Olcott, 4 Vt. 549; Green v. Fox, 7 Allen 85; Elders y. Elden, 51 Miss. 495; Schneider v. Holehoff, 59 Ind. 568 ; Napier’s Case, 3 Pug. 300).</p> <p>A laborer’s lien is not assignable (Cairo & V. JR. JR. v. Fackney, 78 III. 116; Wing v. Griffin, 1 E. JD. Smith 163; Buggies v. Walker, 34 Vt. 468; Bollin y. Qross, 45 N. T. 766; JDano v. M. & O. B. B., 37 Ark. 564; Tewksbury v. Bronson, 48 Wis. 581; see Hrauser v. Bucket, 17 Hun 463 ; Bogers v. Omaha Co., 4 Neb. 54; Goff v. Papin, 34 Mo. 177 ; Brown’s Case, 4 Ben. 143 ; Nash y. Mosher, 19 Wend. 431; Sinton v. Boberts, 46 Ind. 416; Fanuell v. Grier, 38 Iowa 83 ; Bonnell y. Holt, 89 III. 71; Herr y. Moore, 54 Miss. 386; Peters y. St. Louis B. B., 34 Mo. 586; also Phillips on Meeh. IAen, eh. VI.) — Bep.</p>

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

<p>1. In ascertaining the sum for which a decree for deficiency should he made, the sum for which the mortgaged premises were sold must, so long as the sale stands, he taken, as between the parties to the suit, as a conclusive test of the value of the mortgaged premises.</p> <p>2. On such an inquiry, the court is not at liberty, in case the market value of the premises happens to exceed the sum realized at the sale, to deduct the market value and enter a decree only for the balance of the mortgage debt.</p>

<p>1. Equity deals with equitable estates as though they were legal estates.</p> <p>2. By the common law, when lands become vested, during coverture, in husband and wife, the husband is entitled to the exclusive use and possession of them during their joint lives.</p> <p>3. This rule, so far as it excludes a wife, during coverture, from the enjoyment of property thus held, was abolished by the statute of 1852, securing to married women the use of their separate property.</p> <p>4. A bill which fails to make a case, which if admitted or proved will entitle the complainant to a decree, must be held bad on general demurrer.</p>

<p>A testator was eighty-two years old in 1873, when he made his will. — Meld, that if it he conceded that he was miserly, squalid, dishonest, profane and irascible; that he canceled a codicil to his will merely because he believed the beneficiary named therein, who was not a relation, was insincere towards him; that, in 1860, he revoked a-trust deed in the nature of a testamentary disposition of his property (it appearing that he believed that he had, by its provisions, retained power to do so); that, in 1867, he revoked an absolute gift of certain stocks; and that he gave the bulk of his estate to his executors in trust to reduce the debt incurred by the United States in subduing the rebellion — he having no legitimate kindred who-might, by the creation and execution of such trust, be disinherited or disappointed in their natural expectations — those things did not establish testamentary incapacity.</p> <p>Note. — For constructions of gifts and devises for the benefit of the country, or for the payment of the national debt, see Newland v. Att’y-Oen., S Meriv. 684; Nightingale v. Qoulburn, 5 Mare 484, 2 Phil. 594; Ashton v. Langdale, 15 Jur. 868; United States v. Fox, 52 N. Y. 580, 94 U. S. 815; Dickson v. United States, 125 Mass. 811.</p> <p>For gifts to the government or state as trustee, see Mitford v. Reynolds, 1 Phil. 185; Levy v. Levy, 88 N. Y. 99 ; Atty-Qen. v. Baker, 9 Rich. Eq. 521.</p>

<p>An order of distribution of an estate was made in December, 1867. One dis-tributee was absent, and, on the presumption of his death, his next of kin applied for his share, but the administrator refused to pay it over, and no compulsory proceedings were taken against him. Tbe administrator retained the share ready for payment until April, 1877, when he deposited it in a savings bank, where it drew six per cent, interest. Shortly afterwards, he withdrew it and applied it all to his own use. The distributee appeared in 1878, and in proceedings against the administrator’s sureties — Held, that they must pay interest on the share at six per cent., after and during its deposit, and at seven per cent, (the legal rate) from the time of its withdrawal until July 4th, 1878, and at six per cent, (the legal rate from that time) subsequently.</p>

<p>1. An executor has no right, without authority from a competent court, to invest the funds of the estate in municipal bonds or bank stock.</p> <p>2. Where commissions are paid on part of the estate at an intermediate accounting, commissions can only be allowed on the amount which comes into the executor’s hands afterwards, and such commissions are calculated as if the subsequent receipts were part of the prior receipts.</p>

<p>Appeal from decree of Hunterdon orphans court.</p>

<p>A mortgagee is entitled to a grant of letters of limited administration on the estate of a deceased subsequent mortgagee of the same premises, who was a nonresident, no administration having been taken out here on his estate, but such administration will be limited to the proceedings already taken, or that may hereafter be taken in the pending foreclosure, or in any other supplementary proceedings for relief on the mortgage.</p> <p>Note. — If the administration granted be more limited than the purposes of the suit require, and it is in the plaintiff’s power to obtain a more general administration, the court may require him to do so (Faulkner v. Damid, 3 Mare 199; Johnson v. Modgens, Ir. L. B. (10 Eg.) 535; Davis v. Chanter, 3 Phil. 545).</p> <p>In a suit to recover titles of a number of tenants and occupiers, one of the defendants had died, and there was no legal representative of him. — Held, that his widow might be appointed for that purpose, so far as the suit went (Ely v. Qayford, IS Beav. 561).</p> <p>On a general creditor’s bill by the representative of a mortgagee, on behalf of himself and other creditors who may come in, an administrator ad litem is insufficient (Groves v. Lane, IS Jur. 854,1061; see Despard v. Mead, 3 MoU. 339).</p> <p>Pending the administration of an estate in England, a legatee domiciled in Nova Scotia, died there, and his will was proved there, but the executors declined to prove in England. — Held, that the court could appoint an administrator to represent him in England, for the purpose of reviving the suit (Bliss v. Putnam, 29 Bear. 20).</p> <p>F., a testator, died, having appointed three executors; two renounced, and the third, after taking probate, died intestate. All the residuary legatees renounced, and administration de bonis non was granted to K., a creditor. K. died, leaving personalty of P. unadministered. At the time of F.’s death, proceedings against him for the misappropriation of part of the funds were pending,' and administration to represent K. in those proceedings was granted (Bay v. Thompson, S Sw. & Tr. 169 ; also Grant’s Case, L. B. (2 P. Bin.) 495).</p> <p>A party not heard from for more than seven years, was, if deceased, entitled to a share of a residuary estate, which had been paid into the court of chancery. He had no other property in England. — Held, that general administration would not be granted, but one limited to the proceedings in chancery to obtain such share (Turner’s Case, S Sw. & Tr. 476).</p> <p>A wife died in France, leaving personal estate there, but none in England; and it was alleged that, by the law of France, her husband, from whom she had eloped, could not establish his claim to her property there, without a grant from the English court. — Held, that the court had no jurisdiction to make such grant (Tocher’s Case, S Sw. & Tr. 585).</p> <p>In a suit instituted in chancery to administer on an estate, an amount was found due to the executors of a surviving trustee, and those executors appointed three persons attorneys to collect and receive such amount. — Held, that while they were not creditors so as to entitle them to general administration, they had such an interest as authorized the court to appoint their nominee as limited administrator (Brampton’s Case, 9 Jur. (N. S.) 755).</p> <p>Pending a bill for relief against several directors of a corporation, for an alleged breach of trust, one of them died, leaving, as appeared, a will, appointing his widow executrix; but she had not seen the will, and did not know its contents, nor had his solicitors of record been instructed since his death.— Held, that the court would, on the plaintiff’s application, appoint a person, consenting to act, to represent such defendant in the suit, unless the solicitors or widow should appear, after notice, and elect to represent the decedent’s interest (Joint Stoch Co. v. Brown, L. B. (8 Eq.) 876).</p> <p>After a decree for an account had been rendered against two trustees, one of them died intestate, and, as was alleged, insolvent. — Held, that no limited administration need be taken out on such estate (Moore v. Moiris, L. B, (S Eq.) 1S9).</p> <p>A tenant for life died after obtaining a decree for arrears of income due to him. He left a will, but his executor died without having proved it. — Held, that the court could, on the application of one of the defendants, revive the suit as against the other defendants, without any representative of the tenant for life, but without prejudice to any subsequent intervention by such representative (Hayward v. Pile, L. B. (7 Ch.) 684).</p> <p>There can be no general account or administration of an estate, on the application of a limited administration (Graft v. Waterton, IS Sim. 658); nor can such administrator represent any other interest of the estate in the litigation (Moores v. Ghoat, 8 Sim. 508 ; Hodgens v. Hodgens, Ir. L. R. (10 Eq.) 4; Case v. Cork, 2 Y. & G. ISO ; Ellice v. Goodson, 2 Coll. 4; Clough, v. Emm, 10 Sim. 564).</p> <p>On the hearing of a petition relating to the disposition of a trust fund, it appeared that A. had an interest in it which might he asserted. A. died in the United States, haying appointed as his executor B., who proved the will there, but not in England. Counsel appeared for B. at the hearing. — Held, that the court had power to appoint such counsel to represent B.’s interest (Hewiston v. Todhunter, 15 E. L. & Eq. S56).</p> <p>The death of a married woman had been caused by negligence, and her husband, a mariner, was abroad and not expected to return within the time limited for bringing an action to recover damages, whereupon letters limited to bringing such action were granted to decedent’s mother (Williamds Case, SI L. J. P. 40; see Illinois Cent. RrR. v. Oragin, 71 111. 177; Jeff. R. R. v. Swayne, 26 Ind. 411).</p> <p>The grant can only be made where the litigation is pending (Gordon’s Case, Ir. L. R. (1 Eq. 119); and not for an amount exceeding the applicant’s claim (Fleming’s Case, 8 Ir. Jur. (N. S.) 89),</p> <p>In Tennessee, the county courts may grant administration limited to a single act, such as the revival and prosecution of a judgment recovered by the decedent (McNairy v. Bell, 6 Yerg. S02).</p> <p>A native of Texas, having no other property in Tennessee, instituted a suit there against his brother and others, and pending such suit died. — Held, that the court had authority to appoint a third person to carry on the suit against the wishes of such brother, and that such appointment did not, in a proper case, prevent the granting of general administration (Jordan v. Polk, 1 Sneed 480 ; also Vaughan’s Gase, Ir. L. R. (10 Eq.) 1; Robinson v. Bell, lEeG.it Sun. 6S0. See, also, Alexander v. Barfield, 6 Tex. 400; Yarborough v. Hams, S Eev. 40; Smiley v. Bell, Mart. & Yerg. 378; Code of Ala. \ 2625; Russell v. Umphlett, 27 Ark. 889 ; Ewing v. Moses, 50 Go. 264; EUÍ3 v. Beane, Beat. 15; Saunders v. Eu/nman, L. R. (11 P. Din.) 825). — Hep.</p>

<p>1. After the removal of administrators and the appointment of another in their stead, a creditor of the estate may file exceptions to their account as well as the new administrator.</p> <p>2. The orphans court has power to determine whether exceptants are creditors, and, as such, interested in the settlement of the estate.</p>

<p>Appeal from decree of Passaic orphans court.</p>

<p>A guardian was held liable for the amount of a promissory note given by him to his ward’s mother, and after her death taken into his own custody ostensibly for safe keeping, such note being found after his death among hi3 effects, with his signature torn .off, and also for the proceeds of sale of certain furniture, which also belonged to the ward’s mother, and was sold at auction by him; and it was held to be no defence that no administration of the mother’s estate was ever taken out; both the note and the furniture having been taken by the guardian, as such, into his possession.</p>

<p>1. The time limited for creditors to file their claims with an asisgnee, under an assignment for the benefit of creditors, expired on the 8th day of January. On that day, the appellant, a creditor residing in Philadelphia, discovered that fact, although, by misreading his own entry, he had previously supposed the 18th of January was the last day. He thereupon forwarded his claim to the assignee, at Newark, by mail, which ought to have been delivered at five o’clock in the afternoon, but was not, in fact, delivered until the next day. Held, that such claim was neither “ presented”, nor “ exhibited” to the assignee, within the terms of the statute, within the time limited.</p> <p>2. The' orphans court has no power to relieve such creditor on the ground that his omission to file his claim in due time arose from his mistake, and not from mere negligence.</p> <p>Note. — A notice of amercement must be served personally on a sheriff, and not sent by mail (Anon., 1 Sal. 159). Proof of putting into the post-office a letter containing a notice, is not sufficient proof of service (Anon., 6 Sal. 94; Sudson v. Senry, 1 Caines 66; Sickey’s Case, I. B. (10 Eq.) 117; see Futaher v. Sinder, 1 F.&F. 357). Where a plea was sent by mail in time, a judgment of default for want of its having been received, was opened (I/udlow v. Sey-crafl, 3 Caines 386; Cole ads. Stafford, Cole & Caines Cas. 110; Stafford v. Cole, 1 Johns. Cas. 413); so, where the plea was received by the plaintiff’s attorney, who, on inspection, refused to take it from the post-office (Clark v. McFarland, 10 Wend. 635). Notice of trial may be served by post, unless its receipt be denied (McCourry v. Suydam, 5 Sal. 345); and notice to substitute another solicitor (Draper v. Solland, S Edw. Ch. 373); and notice to give security for costs (Abbot v. Ledden, Bert. (N. B.) S3). Willful refusal to take from the post-office a letter containing process is not service thereof (Bedpath v. Williams, 3 Bing. 443. Contba, Aldred v. Sicks, 3 Taunt. 186). Delivery of process sealed up in a letter, in the absence of the person to whom it is addressed, is only service from the time when such letter is opened (Arrowsmith v. Engle, 3 Taunt. 334). Service of notice to quit, sent by mail by a landlord to his tenant, is invalid (Papillonv. Brunton, 5S.& N. 518; see May v. Bice, 108 Mass. 150).</p> <p>Query — Whether depositions taken under a foreign commission may be returned by mail (Simms v. Senderson, 11 Q. B. 1014).</p> <p>The officer is not bound to take from the post-office a letter containing process, on which the postage is unpaid. (Sart v. Weatherley, 4 Bowl. P. C. 171; Anon., 1 Sill 317; Bross v. Nicholson, 1 Sow. Pr. 158).</p> <p>That a capias in another suit and a notice of amercement were mailed together, in one envelope, to a sheriff more than ten days before the beginning of the term, and the capias duly served and returned, is not sufficient proof that the sheriff received the notice more than ten days before the beginning of the term (Melvin v. Purdy, 2 Harr. 162); although sufficient as to their receipt, (Smith v. Campbell, 6 Dowl. P. C. 728).</p> <p>Notice of an allotment of shares sent by mail to a stockholder, and never received, is good. (Harris’s Case, L. R. (7 Ch.) 587; Townsend’s Case, L. R. (18 Eq.) 148; Watts?s Case, L. R. (15 Eq.) 18; but see Reidpath’s Case, L. R. (11 Eq.) 86; British Co. v. Colson, L. R. (6 Ekeh.) 108).</p> <p>Whether the person to whom a letter is directed, after satisfactory proof of mailing it, ever received it, is a question for the jury (Starr v. Torrey, 2 Zab. 190; President v. Hart, 3 Bay 401; Greenfield Bank v. Crafts, 4 Allen, 447; Tanner v. Hughes, 53 Pa. St. 289 ; Warren v. Warren, 1 C. M. & R. 250).</p> <p>As to the presumption from the senders, usual course of business, see Heth-lington v. Hemp, 4 Camp. 193 ; Shilbeeh v. Garbett, 7 Q. B. 846 ; Ward v. Loud-esborough, 12 C. B. 252; Spencer v. Thompson, 6 Ir. C. L. 537.</p> <p>Whether the postmaster could be held responsible, see Whitfield v. Despen-cer, Cowp. 754; Hordern v. Dalton, 1 C. & P. 181; Ford v. Parker, 4 Ohio St. 576; Sawyer v. Corse, 17 Graft. 230; Fitzgerald v. Burrill, 106 Mass. 446; Eeenam v. Southworth, 110 Mass. 474, and cases cited; Foster v. Melts, 55 Miss. 77; Conwéll v. Voorhees, 13 Ohio 523; Hutchins v. Brackett, 22 N. H. 252; 2 Thomp. on Neg. 819, 898.</p> <p>Notice sent by mail to South Carolina, during the rebellion, was held invalid (Harden v. Boyce, 59 Barb. 425 ; Todd v. Neal, 49 Ala. 866 ; Donegan v. Wood, Id. 242; MeQuiddy v. Ware, 20 Wall. 14; Hopkirk v. Page, 2 Brook. 20; Oitizend Bank v. Pugh, 19 La. Ann. 43; Shaw v. Neal, Id. 156; Lapeyre v. Bobertson, 20 La. Ann. 399).</p> <p>Where a substituted service of process, &e., by mail, is authorized by statute, a strict compliance therewith must be shown (Bogers v. Bogers, 3 G. E. Or. 445; Tate v. Tate, 11 O. E. Or. 56 ; Gaffney v. Bigelow, 2 Abb. N. G. 311, and note; 1 Ban. Gh. Pr. 435; Jacobs v. Soaker, 1 Barb. 71; Anon., 25 Wend. 677; Ghataque Bank v. Bisley, 6 Hill 375; People v. Alameda Go., 30 Gal. 182; Gray v. Palmer, 9 Cal. 616; Sharp v. Bangney, 83 Gal. 505; Wallace v. Wallace, 13 Wis. 224; B'itlen v. Griffith, 16 Hun 454; Foley v. Connelly, 9 Iowa 240; Clark v. Adams, 33 Mich. 159 ; Wilson v. Basket, 47 Miss. 637).</p> <p>As to mistakes or omissions in the name or address, see Walter v. Haynes, By. & Moo. 149; Gordon v. Strange, 1 Each. 477; Oothout v. Bhinelander, 10 How. Pr. 450 ; Smith v. Smith, 4 Greene (Iowa) 266; Leonard v. New York Bay Go., 1 Stew. Eq. 192; Likens v. McCormick, 39 Wis. 313 ; Scorpion Go. v. Mar-sano, 10 Nev. 370.</p> <p>Such service is effected, generally, only from the time when the notice is received (May v. Bice, 108 Mass. 150; Beg. v. Leonimster, 2 B. & S. 391; Beg. v. Slawstone, 18 Q.B. 388; Colvillv. Lewis, 2 C. B. 60; Beg. v. Bichmond, E. B. & E. 253; Slevens v. Wheeler, 43 Wis. 91; Schenck v. McKie, 4 How. Pr. 245; Peebles v. Bogers, 5 How. Pr. 208 ; Orittenden v. Chittenden, Id. 310 ; Morris v. Morange, 17 Abb. Pr. 86; see, however, Badcliffv. Van Benthuysen, 3 How.Pr. 67; Yan Horne v. Montgomery, 5 How. Pr. 238; Elliott v. Hennedy, 26 Horn. Pr. 422 ; Schuhardt v. Both, 10 Abb. Pr. 203). — -Rep.</p>

<p>Appeal from decree of Mercer orphans court. On state of the case.</p>

<p>On appeal from the decree of the chancellor, reported in Camden Horse Railroad Co. v. Citizens Coach Co., 4 Stew. Eq. 525.</p> <p>cited—</p> <p>Brooklyn Central v. Brooklyn C. B. B. Co., 25. Barb. 36Ip; Hinchman v. Paterson Horse B. B. Co., 2 C. E. Or. 75; Jersey City & Bergen B. B. Co. v. Jersey City & Hobo-ken Horse B. B. Co., 5 C. E. Gr. 62; 1 Bedf. on Bailways (5th ed.) 329 ; 2 C. E. Gr. 80 ; Hegan v. Eighth Ave. B. B. Co., 15 N. Y. 382; Shea v. Potrero & Bayview B. B. Co., Jplp Cal. Ip28; Id. Jpl6; Brooklyn City B. B. Co. v. Coney Island B. B. Co., 35 Barb. 371; Wilbrand v. Eighth Ave. B. B. Co., 3 Bosw. 320 ; Brooklyn Central B. B. Co. v. Brooklyn City B. B. Co., 32 Barb. 370; Sixth Ave. B. B. Co. v. Kerr, Ip5 Barb. llpO; Fet-terick v. Dickenson, 22 How. Pr. 2Ip8; Brooklyn Central B. B. Co. v. Brooklyn City B. B. Co., 83 Barb. IfiO ; Jersey City & Brooklyn B. B. Co. v. Jersey City & Hoboken B. B. Co., 5 C. E. Gr. 61; Barker v. Hudson B. B. Co., Ip Daly 27Ip; Metropolitan B. B. Co. v. Quincy B. B. Co., 12 Allen 269 ; Adolph v. Central Park, N. & E. River B. B. Co., 65 N. Y. 55Ip; S. G, 76 N. Y. 588,585,586 ; Albany Law Jour. {May 26th, 1877), J¡D3 ; Shea v. Sixth Ave. B. B. Co., 62 N. Y. 180; Com. v. Temple, lip Gray 7Ip ; Middlesex B. B. Co. v. Wakefield, 103 Mass. 263 ; Baxter v. Second Ave. B. R. Co., 8 Rob. 516 ; Adolph v. Central B. B. Co., S3 N. Y. Superior Ct.187, 188; P. L. of 1871 p. 2:25 § SO ¶ 7; P. L. of 1871 p. 247 (§ 76 of charter); 108 Mass. 206; P. L. of 1866 p. 648; 2 C. R. Or. 80; 2 Stew. Rq. 299; Hilliard on Injunctions § 23; Stew. Dig. p. 61 §§ 32, S3; 2 Stew. Rq. 299.</p> <p>cited—</p> <p>3 Kent’s Gomm. (12th ed.) 458 ; Ang. & Ames on Coop. (9th ed.) § 4; Angelí on Highways {2d ed.) 28; Wait’s Actions and Defences vol. 5 p. 338 ; Jersey Gity & Bergen P. P. Co. v. Jersey Oity & Hobohen Horse P. P. Co., 5 C. R. Gr. 69; Brooldyn P. P. Co. v. Brooldyn City P. P. Co., 32 Barb. 372; Troy & Lansingbuog R. R. Co. v. Collins; Newbwrg Turnpike Road v. Miller, 5 Johns. Ch. 101.</p> <p>cited—</p> <p>Mayor of Jeo’sey City v. Jersey City P. P. Co., 5 C. R. Gr. 366; Hinchman v. Paterson Horse P. P. Co., 2 C. R. Gr. 75; Paterson & Passaic R. R. Co. v. Mayor of Paterson, 9 C. R. Gr. 158; Brooklyn City P. R. Co. v. Coney Island R. R. Co., 35 Barb. 264; 1 Redf. on Railways p. 51ft § 6; Brooklyn Central R. P. Co. v. Brooklyn City R. R. Co., 32 Barb. 358,370, 372; Davis v. Mayor of New York, 14 N. Y. 506, 515, 516; Brooklyn City R. P. Co. v. Coney Island R. R. Co., 35 Barb. 364, 371, 372; Brooklyn Central & Jamaica R. R. Co. v. Brooklyn City R. R. Co., 33 Barb. IftO, Iftl; 1 Redf. on Railways p. 317 §§ 7, 8,p. 318 §§ 9,10, p. 320 § 15; Metropolitan R. R. Co. v. Quincy R. R. Co., 12 Allen 262, 269, 270; Commonwealth v. Temple, 14 Gray 69, 74, 77; Metropolitan R. R. Co. v. Highland R. R. Co., 118 Mass. 290; Hegan v. Righth Ave. R. R. Co., 15 N. V. 380, 382; Whitaker v. Righth Ave. R. R. Co., 51 N. Y. 295, 299; New York & Harlem R. R. Co. v. Forty-second St. R. R. Co., 5 Barb. 285, 287, 309; Jersey City & Bergen R. R. Co., v. Jersey City & Hoboken R. R. Co., 5 C. R. Gr. 61, 71, 72; S. C. 6 C. R. Gr. 550, 560; Sixth Ave. R. R Co. v. Kerr, 72 N. Y. 330 ; Adolph v. Central Park, N. & R. River R. R. Co., 76 N. Y. 530, 537; Jersey City Gas Co. y. Dwight, 2 Steio. Rq. 21ft, 249, 250 ; Raritan & Delaware Bay B,. R. Co. v. Delaware & Raritan Canal Co.,3 C. E. Or. 546, 570, 573; Pennsylvania R. R. Co. v. National R. R. Co., 8 C. E. Or. 441; 1 Redf. on Railways 317, notes; Troy & Lansing-burg R. R. Co. v. Collings, MB. ease, Supreme Ct. N. Y. (Rens-selaer Co.), Dee., 1878; Kent v. Morgan, 3 Keen Ch. 313; Cooley on Const. Dim. 544; Clover v. Powell, 3 Btoelc.311, 313 ; Delaware & Raritan Canal Co. v. Raritan & Delaware Bay R. R. Co., 1 C. E. Gr. 331, 378; Hilliard on Injunctions 393 &e.; Boston Water Power Co. v. Boston & Worcester R. R. Co., 16 Pick. 513, 535; Osborn v. Bank of U. 8., 9 Wheat. 738, 838; Newburg Turnpike Co. v. Miller, 5 Johns. Ch. 101; Croton Turnpike Co. v. Ryder, 1 Johns. Ch. 611; Ogden v. Gibbons, 4 Johns. Ch. 150, 160; Agar v. Regent’s Canal Co., Coop. Eq. 77; 8hard v. Henderson, 3 Dow 519 ; Packer v. Sunbury & Erie R. R. Co., 19 Pa. St. {7 Harris) 311, 318; Kerr on Injunctions p. 199 §§ 3, 4,p. 301 § 5; High on Injunctions 313, 313; Eden on Injunctions 331; Hilliard on Injwnctions 393, 573; Kerlin v. West, 3 Gr. Ch. 449 ; Kerr on Injunctions p. 199 § 4-, p. 543 %4> Livingston v. Van Ingen, 9 Johns. 507, 563, 585; Thompson v. New York & Harlem R. R. Co., 3 Sandf. Ch. 636.</p>

<p>On appeal from a decree of the chancellor, reported in Lawrence v. Emson, J¡, Stew. Eq. 67.</p>

<p>1. An assignee, under an assignment for tbe benefit of tbe creditors of the assignor, pursuant to the act entitled “ An act to secure to creditors an equal and just division of the estates of debtors who convey to assignees for the benefit of creditors” (Rev. S6), may file a bill to set aside a prior conveyance of lands made by the assignor for the purpose of defrauding his creditors, if the property so conveyed is required for the payment of the claims of creditors, and creditors who were intended to be hindered, delayed and defrauded by such conveyance have presented their claims to the assignee for allowance.</p> <p>2. Assignees, under the assignment act, and executors and administrators of insolvent estates, are the representatives of creditors, and, as such, may, for the benefit of creditors, set aside conveyances by the assignor or the decedent, in fraud of creditors, to the extent that such property is needed for the payment of debts.</p> <p>3. Qarretson v. Brown, 2 Butch. J$5, approved; Van 1Zeuren v. McLaughlin, 6 O. E. Or. 16S, overruled.</p> <p>Note. — The following additional cases bold that an assignee for the benefit of creditors may set aside fraudulent conveyances made by his assignor before the assignment — in some states, however, the power is statutory:. Kilboume v. Fay, 29 Ohio St. 264; Hallowell v. Baylies, 10 Ohio St. 537; Oibbs v. Thayer, 6 Cush. SO; Blake v. Sawin, 10 Allen 840; Freeland v. Freelmd, 102 Mass. 475; Bynde v. MeOregor, 13 Alim 172; Waters v. Bashiell, 1 Md. 455; Simpson v. Warren, 55 Me. 18; Shipman v. JEtna Ins. Go., 29 Oonn. 245; Shibley v. Long. 6 Band. 735; Olough v. Thompson, 7 Qratt. 26; Staton v. Pittman, 11 Grati. 99.; Boyle v. Peelcham, 9 B. 1. 21; Southard v. Benner, 72 N. Y. 424; McMahon v. Alim, 35 N. Y. 403; Monaure v. Hanson, 15 Pa. St. 385; Tams v. Bullitt, 85 Pa. St. 808 ; 22 Alb. L. J. 60, 81.</p> <p>The following cases deny such fight: Sere v. Pitol, 6 Oranch 332 ; Estabrook v. Messersmith, 18 'Wis. 572; Browning v. Hart, 6 Barb. 91; Leach v. Kelsey, 7 Barb. 466; Maiders v. Quivers, 1 Buv. 164; •Carr v. Gale, 3 Woodb. &. M. 68 ; Flower v. Cornish, 25 Minn. 478.</p> <p>Such assignee may set aside a mortgage or otter conveyance void as to creditors, for -want of registration or other defects. Rood v. Welch, 28 Conn. 157; Hanes v. Tiffany, 25 Ohio St. 549; Lelamd’s Case, 10 Blatch. 508; Barker v. Smith, 12 Bank. Beg. 474; but see Williams v. Winsor, 12 B. I. 9; Lockwood v. Sleein, 26 Ind. 124; Dorsey v. Smithson, 6 Harr. & Johns. 61; Van Heusen v. Badcliff, 17 N. T. 580.</p> <p>In some states, the assignee may affirm such fraudulent conveyance, and thereby estop creditors from impeaching it. Butler v. Hildreth, 5 Mete. 49; Freeland v. Freeland, 102 Mass. 477; but see Leman’s C/ase, 82 Md. 225; Dugan v. Vaitier, 8 Blackf. 245.</p> <p>If the creditors bring suit to impeach the assignor’s deed, the assignee is a necessary party. Jamison v. Ohesmt, 8 Md. 84; Swan v. Dent, 2 Md. Oh. 111.</p> <p>A receiver cannot recover dividends fraudulently declared and paid by an insolvent corporation. Buttenvorth v. O’Brien, 89 Barb. 192; see Lexington Ins. Co. v. Page, 17 B. Mon. 412.</p> <p>The proceedings for the collection of claims against the estates of decedents are similar to those against the estates of voluntary assignors (Gifford v. Black, 88 Ind. 444), and hence it has been said that an assignment by a decedent void as to his creditors, leaves or vests the property assigned, as assets, in the hands of his executor or administrator (8 Wms. on Ears. 1679; and cases are there'cited from Mass., S. O., Tenn., N. H., N. Y., Mich., La., Mo., Vt., Pa., Tex., Me. and Conn.); but such right, in some of the states mentioned, is statutory, and in other states is denied. Dorsey v. Smithson, 6 Harr. & Johns. 61; Snodgi'ass r. Andrews, 80 Miss. ; McLaughlin v. McLaughlin, 16 Mo. 848; Brown v. Finley, 18 Mo. 876; Merry v. Freeman, 44 Mo. 518; Col-trains v. Cbmey, 3 Ired. Eq. 846; Ordronaux v. Helie, 8 Sandf. Ch. 518; Ben-, jamin v. Le Baron, 15 Ohio 517 ; Com. v. Bichardson, 8 B. Mon. 98 ; Crosby v. De Graffenreid, 19 Qa.890; Beale v. Hall, 88 Ga. 481; Chotean v. Jones, 11 III. 800; Beébe v. Sanlter, 87 III. 518; King v. Clarke, 8 Hill’s Ch. 611; Winn v. Barnett, 81 Miss. 658 ; Sharp v. Caldwell, 7 Humph. 415; Lassiter v. Cole, 8 Humph. 681; Martin v. Martin, 1 Vt. 91; Peaslee v. Barney, 1 D. Chip. SSI; Bank of JJ. S. v. Bwrke, 4 Blackf. 141; Hills v. Sherwood, 48 Cal. 886; George v. Williamson, 86 Mo. 190 ; Cobb v. Norwood, 11 Tex. 556; Hunt v. Butter-worth, SI Tex. 1S3; Hammett v. Harrison, 1 Phila. $49); even where the representative alleges that he is also a defrauded creditor (Moody v. Fry, 3 Humph. 567; Coltraine v. Causey, 3 Ired. Bq. 846); see further Batev. Graham, 11 N. Y.837 ; Smith v. Bollard, 4 B. Mon. 66 ; Cooley y. Brown, SO Iowa 4^0 ; Badger v. Story, 16 N. H. 168.</p> <p>But if the fraudulent grantee has been appointed executor or administrator equity may grant relief against him. Hampson v. Sumner, 18 Ohio 444; Clayton v. Tucher, SO Ca. 458; Doolittle v. Bridgemm, 1 Greene (Iowa) 865; Shears v. Bogers, S Barn. & Ad. 368. — Rep</p>

Rudkman, 6 Stew. Eq. 685. The appeal in this case raises two questions: 1. “Whether money due on a decree of the court of chancery, or about to be paid to, or paid to a sheriff on an execution in his hands to raise money, issued out of the court of chancery, is the subject matter of attachment, and can be attached as a right and credit of the defendant in attachment. 2.

By agreement in writing, made August 31st, 1876, the complainant and the defendant, Daniel Tillotson, sen., agreed to exchange land.

Co. v. Sturges, 5 Stew. Eq. 678. The proceedings on the part of the complainant are in conformity to the statute and rules and practice of the court. Carew v. Johnston, ¡3 Seh. & Lef. 280 ; Smith v. May, 7 H. L. Cas. 750. Under these circumstances, the decree being not only enrolled, but executed, the rule of practice is that the decree cannot be altered except by a bill of review. 2 Dan. Ch. Pr. (Jfth ed.) 1080, note 8; Carpenter v. Mutchmore, 2 MoCart. 128.

Ciarle, 2 Stew. Eq. ¡¡,12. I. (а) Suspicious circumstances being shown to be connected with the alteration, it is necessary for the party relying on the instrument to explain satisfactorily the alteration. (б) The circumstances of this case make the alteration appear not only suspicious, but also probably fraudulent. (c) There has been no explanation of the alteration by the party relying on the instrument. The decree, therefore, should be reversed.

<p>1. Where a parent bequeaths a legacy to a child it is understood to be a portion, and if, after the execution of the will, the parent gives a sum of money to the child equal in amount to the legacy, if it be ejusdem generis, it will be an ademption of the legacy, if so intended.</p> <p>2. The advancement of a less sum, with intent to go on the legacy, will be an ademption pro tanto.</p> <p>3. Evidence of parol declarations of testator of the fact of giving the money is not admissible, but such fact must be proved by other testimony.</p> <p>4. Charges in books, made by parent against child, to show advancements, admitted in evidence; such testimony having been so long received by the courts of this state.</p> <p>5. The fact' of the money having passed from the parent to the child being proved, it will be presumed to be in satisfaction of the legacy; but the presumption will be slight, and evidence of parol declarations of testator that he did not so intend, and also his declarations in reply thereto that he did so intend, are admissible.</p> <p>6. Whether intended to be a gift, independent of the legacy, or the payment of a debt, or a portion in ademption of the legacy, is to be decided by the circumstances and facts proved in each case.</p>

Ruckman, 5 Stew. Eq. 259. Upon the evidence there arises the question of law, whether the/re was a sufficient delivery to make the assignments effectual, and vest the title to the mortgage in Mrs. Ruckman. Com. Rig., Fait AS, A 4; Coke Lit. 86 a; Shep. Touch. 58; 8 Wash. R. P., ' (Jjih Ed.) 578; Folly v. Vantuyl, 4 Hal. 158; Cannon v. Cannon, 11 C. E. Or. 816; Church v. Muir, 4 Vr. 319; Rump on Fraud.

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

<p>Motion to continue interim stay pending determination of appeal.</p>

<p>1. Usury may be set up by the owners of the premises and by subsequent encumbrancers, under the petition of the holder of a mortgage for the surplus money remaining in this court after satisfying prior mortgages.</p> <p>2. A promise by one of the mortgagors to the assignee, made after the assignment, to pay the interest on such mortgage promptly, does not estop him from setting up usury in the principal or in the interest previously paid; nor does a claim by one of the mortgagors, to have the full amount of such mortgage deducted by the assessor from the taxes on the premises, amount to an estoppel.</p>

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

<p>Bill to foreclose. On final hearing. On pleading and stipulation as to facts.</p>

<p>A trustee was, by a will, clothed with extensive discretionary powers, and there was no provision for succession in the trust in case of his failure to act. He died — Held, that this court would execute the trust through a successor to be appointed by it, and by substituting equitable rules in the place of arbitrary power.</p> <p>Note. — The following cases show what words have been held to confer such a trust, coupled with a power, as a court of equity could enforce after the death or removal of a trustee vested with discretionary powers:</p> <p>Bairttey v. Bartley, 8 Brea. 884, “ at his or their entire discretion to pay rents for the benefit of one, two or more of the children of A B, the tenant for life,” with a power to appoint new trustees; but they all died without any new appointment.</p> <p>Heaett v. Hernett, 8 Eden 338, power for devisees for life to cut down such timber as four trustees or the survivor “ should assign, allow or directand all of the trustees were dead.</p> <p>Maberly v. Twrton, 14 Ves. 499, a power to apply dividends for the maintenance of children, with the approbation of their parents; and none of the trustees ever acted.</p> <p>Loehwood v. Stradley, 1 Bel. Ch. 298, a trust in executors and their survivor “ to sell lands at such time or times as they can do it to the best advantage * * * as they may think best in their discretion,” and to invest and ultimately divide the proceeds; all the executors being dead.</p> <p>Bull v. Bull, 8 Conn. 47, “ to A and B * * * with full confidence that they will * * * dispose of such residue among our brothers and sisters</p> <p>and their children as they shall judge shall be most in need of the same; this to be done according to their best discretion.” Both A and B died. See also Oilbert v. Chapin, 19 Conn. 850.</p> <p>Mastín v. Barnard, 88 Oa. 520, in trust for testator’s daughters, “provided that my said executors may allow to the husbands of my daughters the net general proceeds of their shares, if they think it prudent to do so.” They turned over one daughter’s share to her husband, who afterwards died.</p> <p>City of Portsmouth v. Shackford, 49 N. H. 423, “ to dispose of, for the benefit of my brothers and sisters, as he [the trustee] might from time to time judge I would have done, if I could have foreseen the circumstances.”</p> <p>Darns v. Christian, IS Qratt. 11, a testator conferring a power to sell lands in order to carry on a partnership, gives therewith a power which, although discretionary, survives.</p> <p>Faultier v. Davis, 18 Qratt. 651, lands were conveyed to trustees in trust for N. and his wife, and the survivor of them for life, and then to their children, and if N. should think it expedient to sell the lots, then to carry out the sale and invest.the proceeds on the same trusts. N. dies, and the court may execute the trust to sell.</p> <p>Chase v. Davis, 65 Me. 102, “ two-fifths for J. 0. and S. C. in trust for S. and his wife, and if, after five years from my decease, they shall, in the exercise of their best judgment, consider it for the best interest and happiness of S. and his wife, to transfer to them said two-fifths, they are hereby authorized to execute such transfer.” J. C. and S. C. duly qualified as executors and trustees, and S. C. died.</p> <p>Wilson v. Pennoch, 27 Pa. St. 238, “ If he [the trustee] shall think it expedient, and the said M. shall assent thereto;” and the trustee died.</p> <p>Hinhlin v. Hamilton, 3 Humph. 569, a successor to an executor who failed to apply to the court to obtain the state’s consent to the manumission of a slave, may be appointed after such executor’s death, and required so to apply.</p> <p>Baillie v. MeWorter, 56 Oa. 183, on the appropriation of trust funds to satisfy a creditor of the cestui que trust, the court appointed a receiver, the trustee having died.</p> <p>Mosby v. Mosby, 9 Gratt. 584, “whenever my executors think'best, they shall sell my land in B.” One executor died and one had been removed.</p> <p>In the following instances the courts have refused to interfere:</p> <p>Hibbard v. Lambe, Amb. 309, “the residue to be disposed of in charity to such persons, and in such manner as my executors, or the survivor of them, shall think fit.” Two of them having died, and a third being very infirm, application was made to the court to have other trustees added.</p> <p>Cole v. Wade, 16 Ves. 37, “for such of my relations and kindred as they [the executors], in their discretion, shall think proper.” Both executors died, tho</p> <p>survivor devising his interest in testator’s estate to B. Neither B, nor a trustee designated by the court, could execute it.</p> <p>Downy. Worrall, 1 Myl. & K. 561, to executors “to apply the same as I [testator] shall appoint, and in default of appointment as to any part, to settle such part at their discretion, either for pious and charitable purposes, or otherwise, for the benefit of my sister and her childrennot executable by the representative of the surviving trustee.</p> <p>Newman y. Warner, 1 Sim. (NS.) 457., “ for W. and 0. and the survivor of them and the executors and administrators of such survivor, at the request and by the direction of A and B,” to preserve contingent remainders. Afterwards 0. died and W. was resident abroad.</p> <p>Dobson y. Nlyght, 4 De Q. J. & S. 608, a power to lease lands, vested in two trustees and their survivor and his representatives, where one trustee died and the other disclaimed, was considered as not cast on the heir-at-law of the testator. See Qarfoot y. Oarfoot, 2 Johns. Gh. 21.</p> <p>Belote v. White, 2 Head 70S, to three trustees, with power in them or their</p> <p>survivor, to sell and convey any part or all of the property, for the use of testator’s daughter and her children, to vest and revest the proceeds, and t® manage the whole in any way they might think promotive of the interests of the beneficiaries.</p> <p>Baüey v. Burges, 1012. I. 422, “to B, his heirs and assigns, upon further trust from time to time, as and when the said B shall deem it expedient to sell or mortgage the whole or any part * * * at his discretion.” B was removed by the court from the trust, pn his own application.</p> <p>Littleton v. Addington, 59 Mo. 275, a widow and another were empowered to sell lands “ as they might deem best for the interests of the estate, and to use the proceeds with like discretion.” The widow, after ceasing to act as executrix, has no power to sell.</p> <p>Biddle v. Oailer, Jj9 Iowa 547, interference with a trust was refused, where a spendthrift had conveyed his property to a temporary trustee until a permanent one could be selected, and the former was dead and the latter not chosen.</p> <p>Such power cannot be exercised, ordinarily, by an administrator cum testa,• mentó annexo. Brush v. Young, 4 Dutch. 237; Boss v. Bardaty, 18 Pa. St. 179; Tainted Y. Glark, 13 Meta. 220 ; Abell v. Howe, 43 Vt. IfiS ; Belcher y. Branch, 11 B. I. 226; Knight v. Loomis, SO Me. 204; Att!y-Gen. v. Garrison, 101 Mass. 22S ; 1 Wms. on JExrs. 654, note (ra1); Dominic v. Michael, 4 Sandf. $74 ; Ferrell ee v. Proctor, 2 Dev. & Bat. 439 ; Armstrong v. Park, 9 Humph. 195; Bes-ley’s Estate, 18 Wis. 431; Wooldridge v. Watkins, 3 Bibb 349 ; Tarver v. Haines, 55 Ala. 503 ; Muldrow y. Fox, 2 Dana 74 ; Coleman y. McKinney, 3 J. J. Marsh. 246; Lockwood y. Stradley, 1 Del. Ch. 298; Greenough v. Welles, 10 Cush. 571.</p> <p>Comtba: Brown v. Armistead, 6 Band. 594; Mosby y. Mosby, 9 Gratt. 5S4; Hester v. Hester, 2 Lred. Eg. 330; Mathews v. Meek, 23 Ohio St; 272; Elslner y. Fife, 32 Ohio St. 358; Bain v. Matteson, 54 N. Y. 663; Fhians v. Chew, 71 Pa. St. 4?; Harrison y. Henderson, 7 Heisk. 815; Anderson y. McGowan, 43 Ala. 462; S. G, 42 Ala. 280.</p> <p>N. B. — Conklin v. Egerton, 21 Wend. 430 ; 25 Wend. 224, doubted in Elslner Y. Fife, 32 Ohio St. 371; Anderson!s Estate, 5 H. Y. Leg. Obs. 305; and Withers y. Yeaden, 1 Bich. Eg. 325, qualified in Lines y. Darden, 5 Fla. 79.</p> <p>As to an administrator de honk non, see Hull v. Hull, 24 N. Y. 647 ; Hep-bum’s Estate, 8 Phila. 206 ; Bell v. Humphrey, 8 W- Va. 1; Meredith! s Estate, 1 Pars. 488. And an administrator durante minare míate. Monsell v. Armstrong, L. B. {14 Eq.) 428. And an administrator or trustee authorized by special act of the legislature. Corbett v. Zeluff, 12 Qratt. 226; Tindal v. Brahe, 60 Ala. 170; MeComb v. Qilkey, 29 Miss. 146; Lothrop y. Stedman, 42 Conn. 583.</p> <p>The court of chancery may appoint a trustee where such power is conferred by testator on either one of two other courts, and they neglect to exercise it. Qriffith v. State, 2 Bel. Ch. 421.</p> <p>Whether the survivor of two or more trustees can exercise a discretionary power of sale given to all, see Clinefelter v. Ayres, 16 III. 329; Bartlett v. Sutherland, 24 Miss. 395; Mallet v. Smith, 6 Bich. Eq. 12; Clark v. Hornthal, 47 Miss. 484 ; Evans v. Chew, 71 Pa. St. 47 ; Phillips v. Stewart, 59 Mo. 491; Parker y. Sears, 117 Mass. 518 ; Bank v. Christian, 15 Qratt. 11; Hamilton v. Love, 2 Kerr 243; Marks v. Tarver, 59 Ala. 835; Saunders v. Sehmaelzle, 49 Cal. 59; Niles v. Stevens, 4 Benia 399; Taylor y. Morris, 1N. Y. 841; Chavet y. Yilleponieaux, 3 McCord 19 ; Miller v. Meeteh, 8 Pa. St. 417; Bell y. Humphrey 8 W. Va. 1. Or the executor of an executor, Chambers v. Tulane, 1 Stock. 146. ' See, further, 8 Am. Law Bev. 669 ; 2 Wms. on Exrs. 951; 2 White & Tud. Lead. Cas. in Eq. 1833. — Rep.</p>

<p>Bill to foreclose. Question submitted on briefs. On stipulation of counsel as to facts.</p>

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

<p>It is no objection to a petitioner’s right to set aside a voluntary conveyance of lands, made to defeat a personal decree for deficiency on a foreclosure, that at such foreclosure sale the mortgaged premises were bought by the petitioner (the mortgagee) at much less than their actual value, where no fraudulent or inequitable conduct on the petitioner’s part is shown.</p>

<p>The provision of the act of 1879 (P. L. of 1879 p. 340) that taxes thereafter assessed should he a lien on the premises paramount to any alienation &e., thereof, makes such lien prior to that of a mortgage on the lands given before 1879, and is -within the power of the legislature.</p>

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

<p>Two mortgages were given, one in 1854 and tlie other in 1855, and duly recorded, to H., who died in 1874, and gave them to his daughter M. In 1879, M. asked of the mortgagor, who then owned the mortgaged premises, an acknowledgment that the mortgages, on which nothing had ever keen paid, were still valid securities, to which the mortgagor agreed, and, in the presence of a witness, signed such an acknowledgment, endorsed on each mortgage. After-wards the mortgages were assigned by M. to the complainant, who sent them to the mortgagor to obtain his admission as to the genuineness of his signature (his mark), and the mortgagor thus obtained possession of them, and ever after professed to be unable to find or produce them. — Held, that the acknowledgment destroyed the presumption of payment from lapse of time as to the mortgagor, and that, as a second mortgagee, such mortgagee had such constructive notice from the record, where the mortgage was uncanceled, as to put him on inquiry, and that the proof in the case showed, outside of the acknowledgment, that the mortgages had never been paid.</p>

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

<p>Exceptions to a master’s report on the accounts of a receiver appointed by this court, involving his management and disposal of the trust property, and the amount of his compensation, considered and overruled.</p>

<p>The act of 1880 (P.L. of1880 p. 255), providing that in foreclosure proceedings thereafter commenced, no personal decree for deficiency shall be taken, applies to mortgages given before the date of its passage, and is not, so far as cases in which there is a remedy at law are concerned, unconstitutional as depriving a party of any remedy for enforcing a contract which existed when the contract was made, because a more efficacious remedy of the same sort at law remains, and the legislature may, without infringing the prohibition of the constitution, take away one of two or more equally efficacious remedies of the same sort.</p> <p>Note. — The following cases illustrate the rule that a statute taking away one remedy for enforcing a contract or right is not unconstitutional if another remedy remain.</p> <p>Abolishing distress for rent. Van Rensselaer v. Snyder, 9 Barb. 302,13 N. Y. 299 ; Child v. Rogers, 8 Barb. 502; Lockett v. Usry, 28 Oa. 345; donkey v. Hart, 14 N. Y. 22; Van Rensselaer v. Hays, 19 N. Y. 68.</p> <p>Requiring that the makers and endorsers of a note shall be sued together. McMillan v. Sprague, 4 How. (Miss.) 647; see Owens v. Western Bmk, 2 Ala. 397; Baldwin v. Newark, 9 Vr. 158.</p> <p>Repealing a statute authorizing a state to be sued. Memphis R. R. v. Tennessee, (S. G. U. S.) 21 Alb. L. J. 355; Tennessee v. Sneed, '96 U. S. 69; or a county, Hunsaker v. Borden, 5 Gal. 288.</p> <p>Repealing a statute authorizing the forfeiture of a corporation’s franchises for non-payment of its debts. Aurora Co. v. Holthouse, 7 Ind. 59 ; State v. Tom-beckbee Bank, 2 Stew. SO; see Powell v. Sammons, 31 Ala. 552; Story v. Fur-man, 25 N. Y. 214; Ireland v. Turnpike Co., 19 Ohio St. 369; Read v. Frank-ford Bank, 23 Me. 318.</p> <p>Aliter, as to a repealer exempting the stock from liability, but rendering the stockholders personally liable. Hawthorne v. Galef, 2 Wall. 10 ; see Conant v. Van Sehaick, 24 Barb. 87; Read v. Frankfort Bank, 23 Me. 318 ; Coffin v. Rich, 45 Me. 507; Syracuse Bank v. Davis, 16 Barb. 188.</p> <p>Rescinding a summary remedy against a stockholder in default as to payments on his stock. North East Alabama R. R. Case, 37 Ala. 679.</p> <p>Repealing a resort to a mandamus. State y. Gaillard, 11 S. Q. 309, affirmed in TJ. S. S. C., March 2d, 1880 ; or a scire facias, Parker y. Sharnonhouse, 1 Phil. (N. C.) 209; or an action of debt on a judgment after execution returned. Grosvenor v. Chesley, 48 Me. 369; Dennis v. Arnold, 12 Mete. 440.</p> <p>Altering, by general statute, the venue of an action against an insurance company for loss under a policy. Howard v. Kentucky Ins. Co., 13 B. Mon. 282; Sanders v. Hillsborough Co., 44 N. H. 238; see Gut y. State, 9 Wall. 36; Osborn v. State, 24 Ark. 629.</p> <p>Repealing an act allowing a landlord to claim rent out of the proceeds of property seized on execution on the demised premises. Stocking v. Hunt, 3 Denio 274; see Barry v. Me Grade, 14 Minn. 163.</p> <p>Providing that equity alone shall have jurisdiction of suits to recover property which had been set apart under the homestead laws and subsequently sold. McLellan v. Weston, 69 Qa. 883.</p> <p>Preventing a judgment being obtained as soon as it could have been by the remedy in force when the debt was contracted. Knoup v. Pi qua Bank, 1 Ohio St. 60S; Johnson v. Higgins, 4 Mete. {Eg.) 666; Cooley’s Const. Him. (4th ed.) *287; Woods v. Buie, 5 How. (Miss.) 285.</p> <p>Providing punishment for a crime, of a milder form. State v. McDonald, 20 Minn. 1S6; State v. Kent, 65 N. C. 311; Cooley’s Const. Dim,. (4th ed.) *267; see Elliott v. Elliott, 88 Md. 857.</p> <p>Bescinding a mortgagee’s right to occupy lands during the period allowed for redemption after foreclosure. Berthold v. Fox, 18 Minn. 501; see Thorne v. San Francisco, 4 Cal. 127; Everson v. Shorter, 9 Ala. 718; Maynes v. Moore, 16 Ind. 116.</p> <p>Reducing the time limited for an appeal. Smith v. Pochard, 12 Wis. 871; see Burch v. Newbury, 10 N. Y. 374; Palmers Case, 40 N. Y. 561; Jacquim v. Com., 9 Omh. 279; Willard v. Harvey, 24 N. H. 344 i Hauser v. Hoffman, 32 Mo. 334; Sayres v. Com., 88 Pa. St. 291, 19 Alb. L. J. 88; Atkinson v. Dunlap, 50 Me. Ill; Beaupree v. Hoerr, 13 Minn. 866 ; Qriffin v. Cunningham, 20 Oratt. 52; or, the right to redeem a mortgage, Butler v. Palmer, 1 Hill 824 ¡ Holland v. Dickerson, 41 Iowa 867; see Cargill v. Power, 1 Mich. 369.</p> <p>Reducing the notice of sale under a mortgage. Webb v. Moore, 25 Ind. 4f Cook v. Cray, 2 Houst. 455 ; Ashuelot B. B. v. Eliot, 52 N. H. 387.</p> <p>Taking from a court of law, by special statute, the determination of matters ■of law in a particular case. Bank of Ky. v. Schuylkill Sank, 1 Pars. 180.</p> <p>Taking away the remedy in equity against the representatives of a deceased partner when the survivor is insolvent, and transferring it to law. Bartlett v. Lang, 2 Ala. 401; Paschal v. Whitsett, 11 Ala. 472.</p> <p>Taking away a resort to equity to remove the apparent lien of a void assessment. Lennon v. New York, 65 N. Y. 361.</p> <p>Giving a court of law jurisdiction where a person is a partner in two firms, -one of which is plaintiff and the other defendant in a suit at law. Hepburn v. Curts, 7 Watts 300.</p> <p>Providing that only an action on the case could he maintained to recover ■damages for the escape of a debtor. Thayer v. Seavey, 11 Me. 284.</p> <p>Giving courts of quarter sessions exclusive jurisdiction over petit larceny committed a second time. People v. Bawson, 61 Barb. 619.</p> <p>Giving the court of common pleas exclusive jurisdiction over naturaliza-tions. Beavin’s Petition, S3 N. H. 89.</p> <p>Whether a statute providing that no action can be maintained for liquors sold, is constitutional. JReynolds v. Geary, 26 Conn. 179 ; Opinion of Justices, 25 N. H. 539; Lord v. Chadboume, 4% Me. 439; Beebe v. State, 6 Ind. 501; Cooley’s Const. Lim. {4th ed.) *583.</p> <p>Whether a lien law can be repealed so as to divest liens already acquired, see Streubel v. Milwaukee R. R., Wis. 67; Wabash Qanal Co. v. Beers, 2 Blaek 446; Weaver v. Sells, 10 Kan. 609 ; Doellnery. Rogers, 16 Mo. 340; Hall v. Bunte, 20 Ind. 304; Krost v. Ilsley, 54 Me. 345; Evans v. Montgomery, 4 Walts <& Serg. 218; Templeton v. Home, 82 III. 491; Martin v. Hewitt, 44 Ala. 413 ; Brooks v. Memphis, 3 Cent. L. J. 356; Bailey v. Mason, 4 Minn. 546; Bangor v. Coding, 35 Me. 73; Watson v. N. Y. C. R. R., 41 H. Y. 157; Christman v. Charleville, 36 Mo. 610; Purmort v. Tucker Co., 2 Col. 411; Allen v. Hain, 63 Me. 532; Coddington v. Beebe, 5 Dutch. 550.</p> <p>Whether execution can be stayed or suspended, conditionally, on judgments rendered on pre-existing contracts, Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608; Moore v. Fowler, Hempst. 536 ; Huntzingerv. Brock, 3 Grant’s Cas. 243; Williams v. Waldo, 4 HI. 264; Smith v. Bryan, 34 111. 364; Farnsworths. Vance, 2 Coldw. 108; Chadwick v. Moore, 8 Watts &Serg. 49;Lou-isiana v. New Orleans (U. S. S. C.), 22 Alb. L. J. 496 ; Edwards v. Kearzey, 74 N. C. 241, 96 TJ. S. 595 ; Webster v. Rose, 6 Heisk. 93 ; Cooley’s Const. Lim. (4th ed.) *292; Kentucky v. Williams, 22 Alb. L. J. 457; Davidson v. Wiley, 31 Ala. 452; see, also, 7 Cent. L. J. 363; Coolers Const. Lim. *292, *361. — Rep.</p>

<p>On a bill filed for the reformation of the bond of the treasurer of a society, because seals were omitted therefrom, and for a decree fixing the amount due thereon from the treasurer and his surety — Held, that while the bond could be reformed as to the seals, no decree could be granted for the amount due thereon, because the remedy at law was adequate, and a demurrer on the latter ground was sustainable.</p>

<p>1. Deed refcmned by striking out an assumption of a mortgage inserted through the mistake of the scrivener, and accepted by the grantee in ignorance thereof.</p> <p>2. A bona fide release of an assumption of a mortgage was verbally agreed upon before suit brought to foreclose the mortgage, but the release was not executed until after suit brought. Without knowledge of the existence of the suit, it was executed and the consideration paid. — Held, to discharge the assumption.</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>A petition to set aside a master’s sale in partition was dismissed, where an application to the master to adjourn the sale was made after the sale had begun; the price obtained for the premises was satisfactory; the master’s discretion as to selling nine lots in gross, fairly exercised, and the petitioner was in laches in presenting his petition.</p>

Bill for divorce for extreme cruelty. Motion for alimony pendente lite and counsel fees, and other provision for the conduct of the suit.

<p>Bill for divorce from bed and board for extreme cruelty. On motion to discharge defendant from custody for contempt.</p>

<p>An injunction will not be dissolved merely because the complainant, in bis bill, lias unintentionally misstated some of the facts on which bis claim to relief is founded, such misstatements not affecting the merits.</p>

<p>A bond and mortgage on lands, and also a bill of sale of chattels, were given to secure tbe payment of a debt. — Held, that parol evidence which, was inconsistent with the terms of a contemporaneous agreement in writing between the parties, in regard to the disposition of the mortgaged chattels to pay the mortgage, was incompetent.</p>

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

<p>1. A testator directed his executors to divide the income from his estate aa follows: one-third to his wife; one-third to her then unborn child, if it should live, and the other third to his son Benjamin; that if either child should die or the unborn one should not be born alive, the survivor should receive the other’s share; that if both children should not attain twenty-one, or should die without leaving lawful issue, their estates should go to testator’s brother David’s 'children, equally; that the share of each child should be paid to him on his attaining his majority, and they should also receive their mother’s share at her death.</p> <p>Testator died in 1829; his posthumous child was born alive, but died in infancy in 1830; Benjamin attained his majority, and died in 1853, unmarried, without issue and intestate. Testator’s brother David had two children. The widow died in 1879. — Held, that David’s children took the share left to the widow, not under the will, but as next of kin of Benjamin.</p>

<p>A testator gaye to his wife the use and income of his house and lands, for her life, and directed his executors to supply her out of his estate with everything that she might need or desire for her comfort, sustenance and happiness. He then gave a specific legacy to S.; several pecuniary legacies to others, and a devise of his house and lands, after his widow’s death, to the trustees of a church, as a parsonage, on certain conditions. — Held,</p> <p>(1) That the executors must resort to the principal of the personalty, for the widow’s support, if the income thereof he insufficient.</p> <p>(2) That the payment of the general legacies must be postponed until after the widow’s death, and would be subject to ratable abatement if there should be a deficiency.</p> <p>(3) That the specific legacy must be paid now and without abatement.</p>

<p>A defendant to a creditor’s hill, after having- been admitted as a co-complainant, may have the conduct of the cause committed to himself, on the ground of great delay on complainant’s part, and on terms as to indemnifying complainant against future costs in the cause.</p> <p>Note. — Whenever the complainant delays his suit unreasonably, its prosecution may be committed to any other party in the cause, whether complainant or defendant, as in case of a creditor’s bill (Powell v. Walworth, 2 Madd. 183 (436); Price v. North, 2 You. & Goll. 628); although not interested in the whole of the decree (Edmunds v. Adand, 5 Madd. 31. See Innes v. Lansing, 7 Page 583); or an administrator’s suit (Fleming v. Prior, 5 Madd. 423 ; Williams v. Chard, 5 Le Q. & Sm. 9 ; Hutchinson’s Trusts, 1 Pr. & 8m. SO); or next of kin, (Sims v. Ridge, S Meriv. 458) ; or in proceedings for an account (Haüett v. Hallett, 2 Paige 22 '; Alvanley v. Kinnaird, 8 Jwr. 114); or in prosecuting a reference (Quaehenbush v. Leonard, 10 Paige 131. See Warren v. Shaw, 43 Me. 428; Brosatrdv. Lester, 2 McCord Ch. 419).</p> <p>But good cause must be shown (Jendwine v. Agate, 5 Russ. 283), and the order is appealable (Wyatt v. Sadler, 5 Sim. 450).</p> <p>For proceedings after the order, see Bemett v, Baxter, 10 Sim. 417.</p> <p>A complainant cannot dismiss his bill to the prejudice of a defendant, and after appearance (Bank of South Carolina v. Rose, 1 Rich. Eq. 292; Rethia v. McKay, Cheves Eq. 93 ; Sankds Case, Id. 203, 211; Anchor v. Levy, 3 Strobh. 'Eq. 211; McClain v. French, 2 Mon. lift; Sail v. McPherson, 3 Bland 529 ; Allen v. Allen, If Ark. 666; Wilder v. Boynton, 63 Barb. 547; Pacific Co. v. Leuling, 7 Abb. Pr. (N. S.) 37; Stew. N. J. Big. Equity V (e). But see Bul-loch v. Zilley, 1 Sal. Ch. 77 ; State Bank v. Bell, 3 Sal. Ch. 372; Smith v. Smith, 2 Blachf. 232; Kean v. Lafftrop, 58 Qa. 355).</p> <p>One of several complainants cannot move to dismiss (Fagan v. Faga/n, 15 Ala. 335); but one defendant may (Be Luxe v. Loder, 3 Edw. Ch. 410).</p> <p>A dismissal will not be ordered where complainant’s delay was caused by defendant (Person v. Nerntl, 32 Miss. 180; Bixon v. Rutherford, 26 Oa. 153; Boyle v. O’Farrell, 5 Rob. (N. Y.) 6f0; Boyle v. Bevane, Freem. Ch. 345; Mc-Vicker v. Filer, 24 Mich. 241. See Norton v. Kosboth, Soph. 101; Bigelow v. Roumelt, 9 C. E. Or. 115; Warren v. Shaw, 43 Me. ; Eddings v. Gillespie, 12 Seisk. 5f8 ; Gilbert v. Campbell, 1 Smnay 414)- — Bep</p>

<p>On application to set aside a sheriff’s sale, beard on petition, answer and depositions.</p>

<p>1. Objections which relate to the regularity of a judgment at law, or to the validity of the instrument upon which it is founded, are not relievahle in equity.</p> <p>2. The remedy for grievances of this character is either by application to the court in which the judgment is entered, or by writ of error.</p> <p>3. A judgment at law can only be impeached in a court of equity for fraud in its concoction, or upon a purely equitable defence, or upon the ground that a good defence at law has been lost by fraud, ignorance or accident.</p> <p>4. Fraud perpretated by means of a judgment is entitled to no more immunity than a fraud perpetrated by any other means.</p> <p>5. If a judgment, founded upon a just debt, is entered not for the purpose of securing or collecting the debt, but for the purpose of being used as a cover, to protect the defendant’s property from his other creditors, the court will denounce it as a fraud and set it aside, as it would any other fraudulent contrivance.</p>

<p>1. The question whether an act is the product of undue influence or not, must always be largely controlled by the state of health and condition of mind of the person alleged to have been unduly influenced.</p> <p>2. Whatever destroys free agency, and constrains a person to do what is against his will, and what he would not do if left to himself, is undue influence, whether the control be exercised by physical force, threats, importunity or any other species of mental or physical coercion.</p> <p>3. Undue influence is not measured by degree or extent, but by its effect; if it is sufficient to destroy free agency, it is undue, even if it is slight. •</p>

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

<p>Appeal from decree of Middlesex orphans court, timony and state of the case. On tes-</p>

<p>1. The testamentary capacity of a testatrix who executed her will in the later stages of pulmonary consumption, established against the hypothetical opinions of experts as to the effect, upon the mind, of the medicines usually employed in such cases.</p> <p>2. The charge of undue influence exerted on testatrix by her mother, her sole legatee and executrix, held not to be sustained, it appearing that testatrix had been obliged, by her husband’s cruelty, to leave him and return to her parent’s house; and that testatrix also desired her mother to have the care and custody of her infant, in preference to its father.</p>

<p>Where all of the next of kin are children of brothers and sisters, they take per capita.</p> <p>Note. — In the following cases the heirs or next of kin in equal degree took per capita:</p> <p>In Millers Appeal, 40 Pa. St. 887, one died intestate, leaving as his heirs at law the children of his three deceased brothers, one brother leaving one child, another four children, and the third nine children; also, Erout’s Appeal, 60 Pa. St. 882, Thompson, C J.; Davis v. Bowe, 6 Band. 855.</p> <p>In Stent v. McLeord, 2 McCord Oh. 854, an intestate left a nephew, the son of a deceased brother, and four nephews and nieces, the children of a deceased sister, his next of kin.</p> <p>In Snow v. Snow, 111 Mass. 389, the next of kin of an intestate were the son of a deceased sister and the four children of another deceased sister.</p> <p>In Be Haven’s Case, 1 Ciarle (Pa.) 886, two brothers of an intestate died in her lifetime, one leaving one child and the other seven children.</p> <p>In Clifton v. Holton, 27 Qa. 821, a testator gave certain property to H., but if H. should die before attaining twenty-one, then over to H.’s “ blood relations of nearest kin, to be divided equally among them.” H. died under twenty-one. When the will was made he had one sister, M., living, four children of a deceased sister, and seven of another deceased sister. M. died after the testator, but before H., leaving six children; see Ennis v. Peutz, 8 Bradf. 887; Mortiner v. Slater, L. B. (7 Ch. Div.) 822.</p> <p>In Shinner v. Wynne, 2 Jones Eq. 41, two daughters of an intestate died in the lifetime of their father, one leaving two children and the other one. See Hshleman’s Estate, 74 Pa. St. 4%.</p> <p>In Person’s Appeal, 74 Pa. St. 121, a decedent had three children, all of whom died in his lifetime, the first leaving one child, the second one, and the third three.</p> <p>In Prawn v. Taylor, 62 Ind. 295, an intestate left no children, hut the descendants of three children, viz., a son of his oldest son, a daughter and son of his second son, and two sons of his third son. See Cox v. Cox, 44 Ind. 368 ; Brantford v. Crawford, 51 Oa. 20.</p> <p>In McKinney v. Mellon, 3 Houst. 277, the intestate’s next of kin were the children of two deceased sisters of his father of the whole blood, and the children of four deceased sisters of his father of the half blood. See Edwards v. Buchsdale, 2 Hill Ch. tfl® ; Hallet v. Hare, 5 Paige 315; Beddv. Clop-ton, 17 Oa. 230.</p> <p>In the following cases they took per stirpes :</p> <p>In Jackson v. Thurman, 6 Johns. 322, A died seized of lands, leaving B and C, children of a deceased sister, and I), the son of a deceased brother, his heirs at law.</p> <p>In Clement v. Cauble, 2 Jones Eg. 82, an intestate died leaving her surviving one child'of a deceased brother, A., two children of another brother, H., and twenty-one grandchildren of H., the children of four of his deceased children, as heirs at law.</p> <p>In McComas v. Amos, 29 Md. 120, an intestate left as his next of kin several nephews and nieces, and also several grand-nephews and grand-nieces; the latter were excluded, and the former took per stirpes.</p> <p>In Kennedy v. Kennedy (Gonn.) 1 Swift’s System, 286, a testator devised a portion of his estate among his relations, according to the laws of the state of Connecticut. He had five brothers and sisters, who all died previously to the making of the will, each leaving a different number of children. See Pruden v. Paxton, 79 N. G. 446.</p> <p>In Grump v. Faucett, 70 N. G. 845, A died seized of real and personal estate, leaving him surviving three grandchildren by a son and five by a daughter, both son and daughter having died before A.</p> <p>In Odam v. Garuthers, 6 Ga. 89, decedent left a wife and two grandchildren, the offspring of a deceased son, and seven grandchildren, the offspring of another deceased son. See Brenneman’s Appeal, Jfl Pa. St. 115.</p> <p>As to constructions of testamentary gifts to nephews and nieces, see 2 Jarm. on Wills (5th Am. ed.) 697; also, •Harm’s Estate, 74 Pa. St. 452 ; Carry’s Estate, 89 Cal. 529; Thornton v. Bobei-ts, 8 Stew. Eq. 478; Bildiner. Bildine, 5 Stew. Eq. 78; Brower r. Bowers, 1 Abb. App. Bee. 214; Grant v. Grant, L. B. (2 P. B.) 8, 5 O. P. 880, 727 ; Kibbert v. Hibbert, L. B. (15 Eq.) 372 ; Weeds v. Bristow, L. B. (2 Eq.) 888; Sherratt v. Mowntford, L. B. (15 Eq.) 305, (8 Ch.) 928; Wells v. Wells, L. B. (18 Eq.) 504; Payne v. Bosser, 53 Ga. 662; Gosgray v. Core, 2 W. Ya. 353. — Hep.</p>

<p>Appeal from decree of Somerset orphans court, on exceptions to the final account of the respondent, executor &c., of Henry M. Wilson, deceased.</p>

<p>On appeal from a decree of the orphans court of Warren county refusing probate of a paper writing purporting to be the will of John M. Youmans, deceased.</p>

<p>Appeal from decree of Essex orphans court.</p>

<p>The testamentary capacity of .a testatrix eighty-three years of age when her will was executed, who mentioned twenty of her intended legatees to her scrivener, and noted the omission of one of them when he read the will over to her, supported by the testimony of the surviving attesting witness and scrivener of her will, and by her physician and other witnesses, established, although her forgetfulness in regard to some minor matters was shown, and it appeared that she had made an unjust and unfounded accusation against a person who, however, had no natural claims upon her bounty.</p>

Newark, 1 Stew. Fq. 5. The bill is filed to remove the cloud from the title to the lands of the complainant, arising from the assessment for grading, curbing, guttering, paving and flagging North Broad street, now Belleville avenue.

Hewes, 5 Stew. Eq. 652. On the 3d of December, 1877, the appellant, Hoag, obtained a chattel mortgage on the goods in question. This mortgage was not recorded in the proper county; it was to secure $2,150. On the 14th of February, 1878, Frederick Fisher, having knowledge of the prior mortgage, took a second mortgage on the same property to secure $1,160.

Van Orden, 6 Stew. Eq. U¡3. Not disputing but that the deed, though absolute on its face, may be shown by parol to have been in fact intended to be only a mortgage, I submit: I. That to so control and qualify the plain and absolute terms of a deed, the evidence must be clear, unequivocal and convincing, and such as to show that the grantee’s claim that the transaction was originally a purchase, is inconsistent with the subsequent conduct of both parties, and such as, if…

Edward T. Norris transferred to a trustee certain promissory notes for the payment of certain enumerated creditors. Held: and the standing of the holder to attack the transfer, are all controvertible. VIII. This transfer is dated October 5th, 1876. The petition in bankruptcy was filed August 28th, 1878, nearly two years afterwards. The transfer is not void by reason of being within the periods of the bankrupt act, which avoids transfers in fraud of'it.

Eq. 701. This is the resistance of Mrs. Louisa Pollock the great-niece and the heir at law of Lucy Eddy, to the probate of a paper claimed to be her will, and dated January 19th, 1875. The testatrix was a single woman, and died in 1879. She was eighty-three years of age at the making of this paper. Her possessions in 1875 were valued at over $200,000.

Davis, 5 Stew. Eq. 530. I. The mortgage sought to be foreclosed in this case is for part of the purchase-money of the mortgaged premises, conveyed by the respondent as a farm containing two hundred and forty-four acres, when in fact, and as it was afterwards discovered and ascertained, it only contained about two hundred and twenty-two acres. II. The appellant is entitled to relief in this case on the answer filed by him, without filing a cross-bill.

J. D. Bedle, advisory master: The evidence in this case, on each side, is very unsatisfactory in many respects, yet, after a good deal of examination and care, I have reached the following conclusions: 1. That the defendant is guilty of adultery, and particularly on September 27th, 1878, in Jersey City, with some person unknown. 2. That the complainant is also guilty of adultery, and particularly with Margaret Frauham, December 1st, 1878, in Jersey City. 3.

<p>1. Where a statute relating to drainage authorized the commissioners to purchase a mill property, and such commissioners, having previously made an assessment-to meet the general expenses of the scheme, entered into a contract to purchase under a large penalty; and not being in funds at the day for performance, in consequence of the non-payment, in part, of such assessment, advanced their own moneys to make up such purchase-money — Meld, on bill filed, that they were entitled to be re-imbursed by an equitable enforcement of such assessment.</p> <p>2. When persons acting for others under statutory authority advance moneys in good faith and beneficially for the persons whom they represent, re-im-bursement of such moneys will, as a general rule, be allowed in a court of equity.</p> <p>3. The claim in this case held to be an equitable one, and one which, being equitable, and also for an unliquidated amount, could not be enforced by mandamus.</p>

Cubberly, 6 Stew. JEq. 8%. Mary M. Danser, of New York, made her will about December 13th, 1876, by which she bequeathed and devised a large amount of property to various persons and institutions.

<p>On appeal from a decree of the chancellor, reported in Per-rine v. Vreeland, 6 Stew. Eq. 102.</p>

Peacock, 1 Stew. Eq. 151. I. The said James M. Peacock, notwithstanding the covenant entered into by him in the pleadings in this case mentioned and referred to, before and at the time the injunction in this case was served upon him, had the right to carry on the business in which he was then engaged in the city of New York, to wit, the business of selling poultry on commission for such persons as would ship or send poultry to him to sell for them on commission. II.

Boyd, 6 Stew. Eq. 190. I. The appellant, Adonijah S. Boyd, the defendant below, was a second mortgagee. He foreclosed his mortgage, to pay which the premises were sold by the sheriff of the county of Hudson. The respondent, the complainant below, was not made a party in that suit. Boyd purchased the premises under his own foreclosure sale.

Green Pond Mining Co., 5 Stew. Eq. 86. Two main questions of fact arise upon the pleadings and proofs, to wit: . I. Is it proved that Charles Montrose Graham 3d and Cornelia Ludlow were lawfully married ? II. Is it proved that Robert Ludlow Graham, one of the complainants, is the lawful issue of that marriage ? Mr. Gummere discussed the evidence as to (a) Courtship. (b) The marriage. ■ (c) The certificate and registry. (d) The situation after marriage. III.

Bonham, 12 O. E. Gr. 209. I. The deed put in evidence by the appellee, purporting to grant, convey and assign a legacy expected by Bel ford M. Bon-ham, under and by virtue of the will of John Bonham, having been executed during the lifetime of the said testator, is void as a conveyance or mortgage, both at law and in equity, and passed no rights in and to the legacy therein mentioned to the respondent, Elisha Bonham.

Nat. JBh. of Frenehtown, 6 Stew. Eq. 250. I. The appellants insist that the respondents, as alleged creditors of the said Samuel B. Hudnut, deceased, had no right, by the statute, to except to the accounts of the removed administrators, that no one but the new administrators could do that, and that the ordinary erred in holding that the respondents had the right to file the exceptions, and that the decree of the orphans court of the county of Hunterdon refusing to strike out…

Jersey City, 5 Stew. Eq. 586. Daring the years 1867 and 1868, the corporation of the “Town of Bergen, in the county of Hudson,” now represented by the appellants, under the provisions of its charter touching the laying out of public streets, opened within its territory a public street, in extension of Jackson avenue. In doing so, certain lands in said town in the then ownership of George H. Sackett, were taken and condemned as a part of the street so laid out.

Ou appeal from the court of chancery. The parties are owners of adjoining tracts of land through which Green Brook, a natural water-course, flows. On the premises, owned by Hyde is a mill driven by the waters of the stream diverted from the natural bed of the stream, and carried to the mill by means of a dam and raceway.

<p>1. The specific performance of contracts is a mode of redress grounded upon the impracticability or inadequacy of legal remedies to compensate for the damages which the party seeking it will suffer by the default of the other in keeping his bargain.</p> <p>2. It is only when the remedy at law will not put the party in a situation as beneficial to him as if the agreement were specifically performed that equity will interfere.</p> <p>3. Where jurisdiction exists, the remedy is not of right; the court holds ;<l in judicial discretion, controlled by principles of equity and justice.</p> <p>4. The bargain or promise to he enforced, whether written or verh^b must possess, in substance and external form, the requisites of a val^ contract.</p> <p>5. It must have been completely determined b^een the parties, and its terms definitely ascertained.</p> <p>6. So long as negotiations are pending over matters regarded by the parties as material to the contract, and until they are settled, and the minds of the contracting parties meet upon them, it is not a contract, although, as to some matters, they may be agreed.</p> <p>7. Where it was sought to compel the specific performance of a parol agreement to assign in trust, for the benefit of the complainant and five other creditors, the defendant’s interest under a will, and it appeared that at the interview during which the alleged parol agreement was entered into, the terms and conditions of the assignment were in a measure, but not entirely, ascertained ; it being understood at that time that the assignee was to pay the creditors first, and then reconvey the remainder to the assignor, but as to provision for the defendant’s own support out of that interest, and his release and discharge from, those creditors’ claims no agreement was reached; and afterwards the defendant, using a form drafted for him by the creditors, containing such provision, prepared, signed and sealed an instrument of assignment, and at the instance of one of the creditors omitted therefrom all such provision, but refused to deliver the instrument, on the ground that such provision was first to be made, and the creditors to release and discharge him from their demand — Held, that there is no such contract established between the complainants and defendant as a court of equity can and will perform by its decree.</p> <p>8. In such case there was no delivery of the deed of assignment, and, therefore, the suit cannot be maintained as a proceeding to obtain possession of a deed or muniment of title.</p> <p>9. What acts or words shall constitute a delivery must depend upon the circumstances of each case.</p> <p>10. A specific performance will not be decreed unless the existence and terms of the contract be clearly proved. If it be reasonably doubtful whether the contract was finally closed, equity will not interfere.</p> <p>11. The proposal made by the defendant was, as to all the creditors named, an entirety, and was not capable of severance.</p> <p>12. The failure of a part of the creditors to agree to a condition embracing all would be a total, not a partial, failure to accept such conditions.</p> <p>13. A devise of rents arising out of the residue of the testator’s real estate, which the executors were authorized and directed to sell, is an interest in lands within the statute of frauds, and its transfer must be evidenced by a note or memorandum signed by the party to be charged therewith.</p> <p>14. In order to enforce the performance of a contract within the statute of frauds, on the ground of part performance, (1) the parol agreement relied on must be certain and definite in its terms; (2) the acts proved in part performance must refer to, result from, or be made in pursuance of the agree-men^>roved; (3) the agreement must have been so far executed that a refusal of f^®L"ecution would operate as a fraud upon the party, and place him in a hich does not lie in compensation.</p> <p>15. iffl^Lcsignment in this ease cannot be regarded as the written memorandum r^fc-ired by the statute of frauds, because it was not delivered.</p>