Volume 39 — New Jersey Equity Reports

<p>A statute directing that taxes assessed upon property held,in trust or for rife &e., should be assessed in. the name of the person entitled to the beneficial interest or income thereof, does not authorize an assessment against “ the chancellor in trust,” in respect to a mortgage given to the chancellor, ihe interest whereon is payable for life to one who is still living, and the principal thereof, after her death, payable to the chancellor.</p>

<p>Bill for divorce. On motion for rehearing.</p>

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

<p>Under this clause in a will, “I give and devise unto the lawful heirs of David Davis, $500, to be paid to them by my executor when they shall arrive at the age of twenty-one years,” David Davis being the son of the testator and having, when the will was executed, three children, and when testator died, four, all of whom are now living, and two minors—Held, (1) That this gift was to the children of David Davis, as a class, and that each child who was living at testator’s death took a vested interest; (2) that each child is entitled to payment of its portion of the $500, on attaining majority, but not to interest thereon from the time of testator’s death, because, as grandfather, he did not stand in loco parentis; (3) that the legal construction of the word “ heirs,” in this clause, is not controlled or affected by another clause in the will, making a bequest to the “children” of testator’s daughter.</p>

On bill to foreclose. Motion for leave to amend answer and file a cross-bill, if necessary. On order to show cause and affidavits on both sides. •

<p>Bill for divorce a mensa et thoro and alimony. Motion to ■discharge Vie exeat.</p>

<p>On a general demurrer to a bill, the decree of the chancellor in favor of the-demurrer was reversed by the court of appeals, but a part of his decision, as-expressed in his opinion, was approved.—Held, that, after the decree of the-court of appeals had been remitted to this court, the defendants could apply, under the two hundred and fifteenth rule, and have stricken out of the bill so-much thereof as was held to be objectionable by that part of the decision sustained by the court of appeals; such proceeding being tantamount to am amendment of the original demurrer.</p>

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

<p>The defendants’ intestate was appointed general guardian of complainant, his granddaughter, in February, 1885, and special guardian to sell some of her lands in July, 1865, and he gave sureties in each capacity. He sold those lands but never rendered any account of the proceeds, nor of his disposition thereof after his report of the investment thereof, made soon after they came to his hands, and never filed any account as general or special guardian. His ward, who was born in 1863, always lived with him thereafter. He died insolvent in 1881. On exceptions to a master’s report as to the allowances to and charges by the guardian, and as to his sureties1, respective liabilities—Sdd that the cost of furniture purchased for and used by the ward should be allowed ; that the time when she was absent from his house during her school vacation should be deducted from his charge for board; that he should be charged with the amount of rent he would have received from the ward’s house if he had kept it in tenantable condition; that the report of the sale (not carried out) of that property, signed by him, although never filed, was competent evidence as to the terms &c. of that sale to charge him with rent for the property; that he should be charged with interest annually on the amounts originally received by him as general guardian, and interest on the rents, but •the proceeds of the sale of the lands should not be included therein, nor t'he interest on those proceeds, because, for them, his sureties as special guardian •are solely responsible, since he never obtained any direction from the court to ’ transfer those proceeds to his account as general guardian. The proper credits for board, clothing, pin-money, wages of a nurse, and for taxes, under the circumstances, fixed—Held, also, that the special guardianship fund is entitled to no part of the allowance for board, clothing &c., unless the amount of those allowances should prove greater than the debits of the general account, in which event the excess should be credited on the account of the special guardianship.</p>

<p>On a bill by the alleged vendee against an administrator cum testamento annexo, for the specific performance of a contract for the sale of lands alleged to have been made by the executor, who had a testamentary power of sale, the' vendee is incompetent to prove the contract.</p>

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

<p>A testator provided as follows: “I give and bequeath to my dear, beloved •wife, Rachel, about nine acres that is by south of Edo P. Mercellus’s land called the new lane, and also all ray movable personal property to be left to •discharge my debts, and so much of my real property to discharge the remainder of my debts, if any wanting, and the remainder of my property, of what nature soever, during her widowhood. I give and bequeath to my daughter Caty the one equal ffth part of the remainder, and the rest to my two sons John and George, equal, share and share alike.” The will was proved December 28th, 1822. In 1823, the widow married Adrian Van Houten, who died in 1825. She continued in the possession of the nine acres until her death, in 1863, and her executors, to whom she gave a testamentary power of sale, continued to possess the premises until the filing of this bill.'—Held, that, aside from the widow’s and her executors’ possession of the premises for about sixty years, the will gave her a fee simple in the nine-acre lot.</p>

<p>A landlord, by a mere oral agreement, rented a hotel to a tenant, in 1867,, with a stipulation that if he should enlarge the hotel the. tenant would pay him a specified additional rent, and that the tenant should also have the privilege of purchasing the premises at cost. The tenant entered and occupied the demised lands, and the landlord and tenant both made valuable additions thereto. The landlord died in 1876, and the tenant in 1879. Pending litigation in another state over the landlord’s will, the defendant was appointed by this court a receiver of the premises; and a few months prior to the tenant’s death,, he (the tenant) made an assignment to the complainant for the benefit of his creditors. On a bill alleging these fácts, and that the estate of the landlord is indebted to complainant for board &c. furnished the landlord and his family, and that the accounts between the parties are complicated, and the items numerous—Held, (1) that this court would entertain jurisdiction of the matter; (2) that the statute of limitations, under the circumstances, was not a defence on the part of the landlord or his representatives; (3) that the cost of improvements to the premises, made by the tenant, could not be included in this accounting.</p>

<p>Bill to quiet title. On final hearing on bill, answer and replication.</p>

<p>Complainants and those under whom they claimed had had fifty years’ open, notorious and continuous possession of lands, under duly recorded deeds purporting to convey the entire estate therein.—Held, that their title was valid, as against one claiming under the former owner of an undivided interest.</p>

<p>A policy of insurance issued in the name of the agent of the owner of the vessel insured, instead of in the name of the principal, through the mistake of the insurance company’s agent in preparing the application for the policy, without any representation or mistake of the owner or applicant for such insurance, may be rectified after the loss of the vessel, the act of the company’s agent in such case being that of the company and not of the insured, notwithstanding the fact that he signed the application with his own name “for applicant.”</p>

<p>Complainant filed a bill to restrain defendant from continuing a nuisance ■of nauseous and noisome odors from its gas works, causing injury and discomfort to him and his family, dwelling in his house opposite the defendants ■works. The defendant answered, stating the origin of the company, and its acts under its corporate powers, its acquisition of the land whereon its works are erected, the natural condition and the improvement of that land, the-former condition of complainant’s property, the great cost of constructing its works, and the irreparable injury that would result from an injunction preventing its manufacturing gas.—Held, on motion, that these averments were not responsive, but impertinent and irrelevant, and must be stricken out. The formal clauses required by the two hundred and fourteenth rule to be omitted from answers, having been inserted by the defendant, were also-stricken out.</p>

<p>Two defendants in a partition suit put in separate and merely formal answers. —Held, that the fact that the answers were merely formal, and put in by the same solicitor, did not disentitle those defendants to the costs thereof.</p>

<p>A statute of 1876 authorized the appointment of deputy county clerks, but provided that they should receive no salaries from their respective counties. A statute of 1882 directed that jn all counties where the county clerks were then paid by annual salary, the deputy clerk should receive an annual salary of $2,000, payable quarterly. A bill was filed by some taxpayers and citizens -of Camden county, alleging that the statute of 1882 was unconstitutional, and thereupon an injunction was issued, restraining the county collector from paying, and the defendant from receiving, as deputy county clerk, any salary thereunder. Pending the suit, the board of freeholders passed a resolution, appropriating $160 per month to the defendant for his services in the county clerk’s office from the time the bill was filed and injunction issued.—Held, 'that, although the board of freeholders were not parties to this suit, the payment of the money by the county collector, and its reception by the defendant, were palpable violations of the injunction.</p>

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

<p>A testamentary trust of lands was to pay to the testator’s wife and five children, in equal shares, the net rents thereof, and, after the death or remarriage of his wife, to the children, and in case of the death of any of the children, leaving lawful issue, that child’s share to be paid to such issue. The testator’s wife died in his lifetime, and the five children all survived him. One daughter, Laura, married and died, leaving two children and four grandchildren, the children of her deceased son who died in her lifetime.—Held, that each one of Laura’s surviving children took one-third of her interest under the trust, and the four grandchildren of Laura’s deceased son took the remaining third.</p>

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

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

<p>Where the insufficiency of proof is due to the inadvertence of counsel, a cause may be ordered to stand over, after final hearing, for the purpose of supplying the additional proof.</p>

<p>A testator gave to his son (the defendant) all the implements, materials &e. in his oil-cloth factory, which were to be valued at cost, and sufficient money added to such valuation to make a total of $30,000. He then gave to trustees (the complainant) all the residue of his estate, to permit defendant to use and enjoy the land and buildings constituting his oil-cloth factory, without rent or charge, so long as defendant carried on the business alone, without a partner, the defendant to pay all taxes thereon and. keep the works in good repair, • make all improvements and keep the same insured at his own expense, otherwise the premises were to be sold &c. The defendant received the tools, stock &c., and also the money, which, added to the valuation, made up the $30,000. The factory itself was appraised at $14,000. The complainant expended $2,000 in finishing buildings which were unfinished at the testator’s death. The cost of the factory, including that expenditure and the cost of the land, was $21,000. The defendant has complied with all the conditions of the trust relative to the taxes, repairs and insurance. He expended, prior to December 31st, 1881, $3,660 in new buildings and machinery and repairs. All the buildings were insured, in the complainant’s name as trustee. In 1881.one of the buildings, with the machinery therein, was destroyed, and portions of others of the buildings injured, by fire, and the proceeds of the insurance, about $6,000, were paid by the companies to the trustee, and were by him paid to defendant, who expended that and also about $18,000 of his own money in new buildings and machinery, built partly on the trust land and' (as to one building) partly on his own adjoining land. The value of the buildings &e. on the trust property has been doubled by the defendant, and new buildings &e., including cost of land, worth $48,000, erected on his own property adjoining, and used by him in connection with the original factory, all of which have been insured by defendant in complainant’s name.- In 1884 the paint-shop was again burnt, and almost all the other buildings so damaged that manufacturing was suspended until after they had been repaired. The loss was adjusted at $29,000, and complainant has received thereof $21,000, and paid $11,000 to defendant, who has begun to rebuild, and in doing so has placed one of the buildings, in part, on his own land; but even if such part should be severed from the part on the trust lands, the latter, would not be essentially impaired. The defendant’s reasons for such location are to increase bis facilities for business and to reduce the chances of loss by fire.—Held, that the defendant is bound to keep the premises insured to' an amount equal to the original valuation of the trust buildings &c., and the value of the complainant’s improvements, such insurance to be in the name of the trustee; that in making restorations, the plant on the trust property should be kept complete in itself, so that severance of the buildings thereon from those on the adjoining land would not destroy the usefulness of the former as an oil-cloth factory; that any improvements put upon the premises by the defendant are to be regarded as trade fixtures, and subject to removal by him or to allowance for their value; that as but an inconsiderable portion of one building is being erected on defendant’s own land, the insurance-money may be applied thereto; that should the defendant fail to insure or repair the premises, or to pay the taxes thereon, the complainant ought to do so, and retain the cost from the defendant’s income in his hands; and, finally, that as an infant is interested, the matter must be referred to a master to ascertain and report the facts, although complainant and defendant substantially agree as to them.</p>

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

<p>The defendant claimed to be entitled to dower in the testator’s real estate. On bill filed to quiet title—Held, that the proof showed that she was not his ■wife, and therefore it should be decreed that she was entitled to no dower, and must give up possession of the property in which he and she lived together at his death, and of which she continued to hold and claim possession as his widow.</p>

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

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

<p>A non-resident testatrix gave all !her estate to het husband for life, “ and in the event of his decease, and not till then, to be divided between my step-children,” John, William, Julia and James, “or their heirs.” William died in the testatrix’s lifetime, intestate, and having never been married. The property of the testatrix was all personal. By the statute of distributions of William’s domicil, his father was entitled to his personal estate.—Held, that at testatrix’s death, William’s father became absolutely entitled to the estate in remainder given to William, notwithstanding the fact that he was, by the will» •also entitled to a life estate therein.</p>

<p>A testatrix obtained a decree in a foreclosure suit, and the execution thereon was, by direction of her solicitor, returned unexecuted. After her death an alias execution was issued in her name, and, at the sheriff’s sale, one of her executors bought the premises, taking the title in his own name for convenience, and in trust for the estate.—Held, that a deed executed by himself and his wife, and his co-executor, would transfer a good title to the premises.</p>

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

<p>Bill to foreclose. On appeal by complainant from decision of examiner as to competency of witness.</p>

<p>The complainant seeks to redeem certain real estate sold under foreclosure in this court, on equitable terms. All the defendants, except Alice Buckingham and her husband and Susan Horner, demurred to the bill for want of equity. Their demurrer was sustained in this court, but the decree of this court was reversed by the court of errors and appeals, where it was held, as this court had held, that the decree in the foreclosure suit was conclusive on the complainant; but that court held further that complainant might be entitled to relief on the ground of fraud in the sale under that foreclosure. After-wards, all of the bill, excepting the part relating to that fraud, was stricken out. The defendant Alice. Buckingham, who has already answered, now moves for .leave to file an amended answer by way of cross-bill against certain of her codefendants, to obtain the relief which it has been held in this case the complainant cannot himself obtain. The original bill neither asks for any relief against her, nor can any be thereby obtained against her.— Held, that the application must be refused. A cross-bill is considered as a mode of defence, and must be confined to the subject of the litigation in the original suit, and. cannot be the means of instituting a distinct suit in relation to other matters, and cannot become the foundation of a decree as to such matters.</p>

<p>After directing that his debts be paid, and making a specific devise, a testator gave the “balance and residue” of his estate to his wife, declaring that that gift to her was in lieu of her dower. I-n the settlement of the estate, and the payment of testator’s debts, all his personal estate was exhausted, and all his lands, other than those specifically devised, sold, by order of the orphans court. —Held, that his widow was not deprived of her right of dower in those other lands by her failure to file her dissent to the devise to her within the time limited by the statute.</p>

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

<p>1. A visit by a married woman to a brothel, will, unless satisfactorily explained, justify the presumption that she went there for a criminal purpose.</p> <p>2. Such conduct will not, however, afford evidence of guilt if it is shown1 that the wife was decoyed there, by the procurement of her husband, and for the purpose of making a case against her.</p> <p>3. A husband who seduces his wife before marriage, and, after marriage, sees her in a situation of temptation and does nothing to rescue her, and she yields, will be understood as having consented to her adultery.</p> <p>Note.—That a married woman goes to a brothel, is prima facie evidence -of adultery, Best v. Best, 1 Add. 411; Kenrick v. Kenrick, 4 Sagg. 137 ; Woods v. Woods, 4 Sagg, 138, note; but may be explained, Betts v. Betts, 1 Johns. Oh. 197; and so as to going to a hotel, Pond v. Pond, 13$ Mass. $19; so. where a married man enters such a house in the evening, and remains all night, Evans v. Evans, 41 Cal. 103; Van Epps v. Van Epps, 6 Barb. 330, 33$; Langstaff v. Langstaff, Wright 1J8 ; or is proved to have been shut up in a room alone with an unchaste woman, Daily v. Daily, 64 III. 339 ; see Lockyer v. Lockyer, 1 Edm, S. C. 107; Sunn v. Sunn, 1 T. & C. (N.. Y.) 499; Bichardson v. Bichardson, 4 Port. 467; but his conduct, in going to a brothel, may be explained, Platt v. Platt, 5 Daly 395; Latham v. Latham, 30 Cratt. 307; as to explanations of a married man’s associating with prostitutes for benevolent purposes, see, Oiocci v. Oiocci, 36 Eng. L. & Eg. 604.</p> <p>As to a husband’s conduct, encouraging his wife to commit adultery, in order that he may obtain a divorce therefor, see Timmings v. Timmings, 3 Sagg. 76 ; Pierce v. Pierce, 3 Pick. $99 ; Cochran v. Cochran, SB Iowa 477; see, further, 14 Cent. L. J. 163.—Rep.</p>

<p>1. A court of equity may, in a proper case, decree the specific performance-of a contract to renew a license.</p> <p>2. Specific performance of a contract will not be decreed, unless the contract, has actually been concluded ; or, if any material part of it still rests in treaty, and remains to be settled by further negotiation, equity will not interfere.</p> <p>3. No court has power to make a contract for persons sui juris, nor to compel them to agree with each other.</p> <p>4. Where an injunction is sought in aid ■ of action for specific performance,, if the complainant’s case is strong enough to render it at all probable that the complainant may, on final hearing, be able to convince the court that he is. entitled to relief, the court will, as'a general rule, award the writ, but will refuse it in cases where it appears that the contract sought to be enforced has-not yet been made, or, if made, that it is so incomplete or uncertain as to bn unenforceable.</p>

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

<p>On petition and answers and proofs taken in open court.</p>

<p>On final hearing on original bill and answer, and cross-bill and answer, and proofs taken in open court.</p>

<p>On final hearing on bill and arfswer and proofs taken in open court.</p>

<p>On iinal hearing on bill and answer, and proofs taken in open •court.</p>

<p>On final hearing on bill and answer, and cross-bill and answer, and proofs taken in open court.</p>

<p>The former owner of a hotel in Trenton applied to the common council of the city, and obtained, by ordinance, permission to lay a drain and sewer-pipe from the hotel through a street to a small natural stream of water. The ordinance contained a provision, that if such pipe should become a nuisance (upon which the opinion of the common council should be final and conclusive), the owner, his heirs or assigns, would remove it. The hotel is now owned by one of the defendants, the other being his lessee. The board of health of the city of Trenton filed a bill, in the name of the state, to enjoin the use of the pipe for discharging the filth of the hotel into the stream, as a nuisance detrimental to public health; and the evidence shows that its use is a public nuisance.— Held, that the injunction should he allowed, although other persons also discharged their filth into the stream; and although the statutory requisites as to the organization of boards of health had not been strictly complied with by complainants'; and although the ordinance had never been repealed, and the defendants insist that the license thereby granted is in the nature of a contract and irrepealable.</p>

<p>On exceptions to final account of guardian.</p>

<p>Appeal from order of Middlesex orphans court.</p>

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

<p>Appeal from decree of Salem orphans court, submitted on ■stipulation and briefs of counsel.</p>

<p>1. Where executors were not chargeable with the deficiencies arising from the foreclosure and sale of premises under mortgages belonging to the estate, they were allowed therefor in their final account, they haying been charged’ with the full amount of those mortgages in their first account.</p> <p>2. Held, also, that they were not chargeable with the amount of a mortgage which was satisfied during their testator’s lifetime, but canceled of record by them after his death.</p> <p>3. They were allowed for taxes paid and for repairs and improvements made on the testator’s homestead after his widow ceased to reside therein. By the terms of the will, the executors held it in trust for her and her daughters to live there while they were unmarried, for their hatural iives, with a provision that they might sell in certain contingencies, which power was not exercised until ten years after the widow’s death.—Beld, also, that she should have paid •the taxes and costs of repairs and improvements while occupying it, and also •after she ceased to occupy it but received the rents therefrom. ■</p> <p>4. They were allowed for traveling expenses actually incurred and paid by ■them, and also the amount of a salary paid to an agent employed by them about the business of the estate, such amount having been taken into consideration in fixing their commissions.</p> <p>5. They were allowed for payments of certain municipal assessments levied . •on lands of the estate, although the statute under which similar assessments were laid was afterwards declared by the courts to be unconstitutional; and also for other municipal assessments subsequently paid by them in good faith and with discretion.</p> <p>6. They were held not liable for refusing an offer of $30,000 for certain lots of the estate which had been valued by a reputable local expert at $95,000, and shortly afterwards, at their request, with a view to fixing a price which would invite buyers, at $65,000, although the lots were afterwards, in order to •close the estate and to pay certain assessments thereon which the estate had no funds in hand to pay, bought in at public sale for $1,470, under an agreement by all those interested, (including the executors,) except the appellant, whose interest is one thirty-second part. The agreement was to sell for the best price obtainable, and if one B. should buy he should hold the lands in trust, to. be •divided among the parties. The sale was extensively advertised and B. was the successful bidder, and the lots were divided accordingly. The value of all lands greatly depreciated by the panic of 1873, after the $30,000 were offered for the lots.-—Beld, also, that they were .not liable for a loss sustained on a sale •of the homestead through the same causes, its value being also affected by the existence of the testator’s surviving daughters’ contingent right to occupy it.</p> <p>7. They were allowed for the payment of a 'commission of $300 to a broker who secured a purchaser for them of part of the testator’s lands for $15,000.</p> <p>8. They were held not liable for the non-collection of deficiencies on the sale of mortgaged lands, there being no proof that those deficiencies could in any •case have been collected.</p> <p>9. They were allowed for counsel fees paid, where the services appeared to have been necessary and properly rendered. The question of the allowance for some of those professional services had been considered by the orphans court, when a former account was passed, and they were then allowed.</p> <p>10. The entire amount of the cash on hand at the settlement of the first account was cha-rged to them in the second account as cash on hand, without deducting therefrom the amount of the commissions due them as fixed by the court, and also the surrogate’s fees on the first account. The second account, was rectified by making those deductions.</p>

<p>Appeal from tbe decree of Cape May orphans court.</p>

Wallis, 10 Stew. JOq. 43$. Frederick F. Harral was born in Connecticut in 1842. He graduated at Yale College in 1863, and at the College of Physician and Surgeons, in New York city, ha 1868. Ho wáí? nrar•ried on the 20th of February, 1877, before the deputy mayar, in the city of Paris, to Clarice Mai’ie Le Gars, a French wonian. In May, 1878, he returned to this country, and died at .Kiri- • bride’s hospital for the insane, in Philadelphia, July 5th, 1881.

<p>On appeal from part of a decree advised' by Vice-Chancellor Van Fleet.</p>

<p>1. When, on decree for specific performance, the defendant is in contempt for refusal to perform, the court may give it effect by establishing the contract as if it had been executed; and by enjoining and restraining the defendant from denying ils execution and. delivery; and from defending himself in any action by denying its execution.</p> <p>2. Such substituted decree, made while the defendant is in contempt, may be without notice, but he has the right of appeal therefrom.</p>

<p>On appeal from a decree advised by Vice-Chancellor Bird, whose opinion is reported in Larison v. Polhemus, 9 Stew. Eq. .506.</p>

<p>1. The presumption is, that the mortgage first recorded is the first lien; and to overcome such presumption, it must be proved that the mortgagee of the mortgage first of record, at or before the time he took his mortgage, had knowledge of the existence of the mortgage first in date.</p> <p>2. The notice, if any, must be taken with the qualifications attached to it by the agreement of the mortgagee of the unrecorded mortgage; and if such mortgagee has agreed with the mortgagor to keep his mortgage off the record, in order that the mortgagor may borrow more money on the property to be secured prior to such mortgage, and such agreement be made kuown to the mortgagee of the mortgage second in date, but first of record, at or before its ■execution, such notice will not give the unrecorded- mortgage priority.</p> <p>3. In such ease the priority of the mortgage first in date is waived.</p>

<p>On appeal from a decree of the ordinary, whose opinion is reported in Reynolds v. Jackson, 9 8tew. Eq. 515.</p>

On April 3d, 1862, William R. Maps and others, residents of Long Branch, filed, in the clerk’s office of the county of Monmouth, a certificate in which they express their intention to form •themselves into a religious denomination, and take upon themselves the name of “The Trustees of the Methodist Episcopal Church of the village of Long Branch.” They purchased a lot ;and built a -house for worship. On these they executed a mortgage to Maps & Slocum for $5,700.

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

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

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

<p>A master was directed to ascertain and report the value of certain lands taken by a railroad company for its right of way, and the consequent damage to the owner’s adjacent lands, as of the time when the company took the land.— Held, that the land covered by a public road, which was laid out through the land taken by the company, after the company had taken it, should not be excepted.</p>

<p>A manager was employed by the receiver of an insolvent railroad company mainly to perform duties which the receiver himself should have attended to. In a subsequent order for the disposition of the proceeds of the foreclosure of a mortgage on the railroad, an amount was awarded to the receiver as compensation for his services, and he was thereby directed to pay the manager a specified portion thereof. He refused to do so, claiming that the manager was indebted to him individually in a larger amount.—Held, the indebtedness from the manager to the receiver being admitted, that a petition by the mana- * ger for an order compelling the receiver to pay him the amount specified should be dismissed for want of equity.</p>

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

<p>The complainants were incorporated, under a general statute, to supply Atlantic City, the defendant, with water. They afterwards contracted with the city for that purpose, and thereby accepted the provisions of certain ordinances regulating the mode of supplying the water, both for public and private purposes. They received in return exemption from municipal taxation, and also the exclusive privilege of furnishing water to the city and its inhabitants. They constructed their works at a large expense, and supplied the water, as required by their contract, satisfactorily.—Held, that whether or not the city’s grant of the exclusive privilege of furnishing water was ultra vires, and void as creating a monopoly, the city had exhausted its power as to providing a water supply; that the complainants’ franchise was exclusive, and that consequently, this court would, by injunction, protect the complainants against any invasion of their rights by persons laying water-pipes &c., under municipal authority, to compete with them unlawfully.</p>

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

<p>On demurrer to a bill against the inhabitants of a township, alleging that in 1875 the complainant gave the township his bond for $1,000, secured by a mortgage on lands, to insure the payment of $3.50 per week so long as complainant’s wife should be a charge on the township; that the township had received $750 thereon, and that the mortgage had been canceled of record; that the wife was not a public charge after 1875—Held, that complainant is entitled to a discovery and account of the moneys received on the bond.</p>

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

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

<p>A statute provided that, in any county in which the fees &e. allowed county clerks for services should be collected and paid over for the use of the county, it should be lawful to have an assistant clerk, who should be paid by the county collector; that each of the clerks of said counties, whenever the population thereof exceeded sixty thousand, should appoint an assistant clerk, who should possess and exercise all the powers of the county clerk during the latter’s absence, and that he should be paid an annual salary of $2,000.—Held, that the act was unconstitutional, as being special legislation regulating the internal affairs of a county.</p>

<p>The general guardian of an infant was also appointed its special guardian to sell certain lands, and gave different bondsmen in each capacity. From his imperfect mode of keeping his accounts, it is impossible to tell now which of the two funds should be credited with a certain investment. In a litigation, after his death and insolvency, between the ward and the sureties upon his respective bonds—Held, that each fund should be credited with one-half of the amount of the investment.</p>

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

<p>A husband conveyed lands to his wife, to hold in trust (evidenced by deed) for his benefit during his lifetime, and thereafter to sell the lands and divide the proceeds among his widow, should she survive him, and their children or grandchildren.—Held, that the husband and wife could not substitute for the trust as to those lands another trust, so as to affect the interests of the children and grandchildren.</p>

Bill for relief. On motion on behalf of complainants to set aside the verdict rendered on the trial of the issue at law, and motion on the part of the receiver of the West Line Railroad Company for a final decree upon the verdict. Charge of the court by De/pue, J. : This suit is an issue out of the court of chancery.

<p>1. Legatees mentioned in a will by the nicknames by which testator always-called them, and identified, were held entitled to their respective legacies.</p> <p>2. A provision that in case of the death of a certain legatee before majority, the legacy was “to revert back to” testator’s “other lawful heirs,” construed to mean that, in that event, the legacy should go to his children or their representatives.</p> <p>3. Where executors filed a final account, charging themselves with a certain, amount, the fact that a part of that amount consisted of securities, which they then supposed were good, but which they afterwards failed to collect, is not a mistake, for which they can obtain relief in equity six years thereafter, and especially so where the will directed the greater part of the legacies to be paid, with the securities received by the executors from the testator, and some of those securities have been lost through the executors’ delay and blunders in their attempts to collect them.</p> <p>4. Executors’ reasonable expenses of a suit in this court for the construction-of the will, allowed, but not those in the court of appeals in the same case, the appeal therein having been taken by them, and being deemed unnecessary under the circumstances.</p> <p>5. Executors, who instituted proceedings to be relieved from the amount, charged against them in their final account, and who were refused relief therefrom, held liable to pay the costs of the suit, although they also asked incidentally for a construction of the will by the same bill.</p>

<p>On motion for injunction, heard on bill and affidavits and answer and affidavits.</p>

<p>1. A false representation, to be the proper'subject of judicial action or cognizance, must be the cause of legal wrong or injury, and such cannot be the •effect of a false representation made to a person who knows it to be false.</p> <p>2. If an infant, being entitled to a sum of money on attaining twenty-one years of age, induces his trustee to pay it to him in advance of that time by fraudulently representing himself to be older than he is in fact, he will, in ■ equity, be bound by the payment, but only to the extent of the payment actu-ally made. If the trustee induces the infant to release the whole, on paying •only a part of what is due him, the release will only be held good to the extent of the payment made.</p> <p>Note.—See Kerr on Fraud and Mistake 148 ; 3 Wait on Actions 443; Tyler «on Infancy 53, 176; Wood v. Vanee, 1 Nott & McCord 197 ; Hewitt v. Warren, 10 Hun 560.—Rep.</p>

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

<p>A widow who has dower by the judgment of a court which cannot award iher damages or compensation for mesne profits, may maintain a suit in equity (for their recovery.</p>

<p>The administrator of a married woman paid a bill presented by a physician against the estate, and her husband excepted to its allowance in the settlement of the administrator’s account.—Held, that the physician was incompetent to testify to a promise by the decedent to pay the bill.</p>

<p>Executors were directed to convert and invest the residuary estate, and to divide it when the testator's youngest child should have attained its majority, and also thereafter to hold testator’s daughter’s shares during their lifetime. They sold the real estate which constituted part of the residue.—Held, that they were entitled, as executors, to commissions on the proceeds of the sale, and that they would also be entitled, as trustees, to another commission thereon, for the services they might render as such in reference thereto.</p>

<p>An appeal was taken on July 9th, the complete record was filed in the surrogate’s office on September 16th, and on October 15th, the first day of the term, the appeal was dismissed because the appellant had not filed here a transcript of the proceedings below. On a motion to re-instate the appeal— Held, (1) that notice of the motion to dismiss the appeal was not necessary;* (2) that if appellant had needed additional time for filing his transcript, he ought to have applied therefor promptly.</p>

<p>In February, 1876, a will was executed by a widow, wbo was then about eighty-two years old, and blind. In November, 1878, an inquisition of lunacy found that sbe was then of unsound mind, and had been so for three years preceding. Her testamentary capacity, at the time when her will was made, was, nevertheless, shown and established by the testimony of witnesses, and the orphans court decree ordering her will to be admitted to probate was affirmed.</p>

<p>1. An executor may pay any claim against the estate, which he is satisfied iis just, without requiring a statement of the items thereof, or that it be sworn to.</p> <p>2. An agreement among all the parties interested in an estate, whereby one •obtained a discharge from her indebtedness to the estate, and another received ^payment from the estate for services to the testator, estops the former from excepting to the executor’s account because of such payment.</p> <p>3. Where an executor has, by retainer, satisfied his own claim against the ■estate, the orphans court, in passing his account, has jurisdiction to inquire .into the validity of the claim, and the legality of his action in retaining .therefor.</p> <p>Note.—An executor or administrator’s right of retainer at common law is not forfeited by the statute requiring an equal distribution of the assets among the creditors of the estate, Berry v. Oraddy, 1 Mete. (My.) 553; nor by the statute of frauds, Ibid,.; nor by the act abolishing the distinction between ■specialty and simple contract debts, Orowden v. Stewart, L. B. (16 Ch. Biv.) ■368; nor by the act in reference to secured and unsecured creditors, Lee v. Muttall, L. B. (13 Ch. Biv.) 61; nor by instituting a creditor’s suit, wherein he represents himself and all the other creditors, Campbell v. Campbell, L. B. ■(16 Ch. Biv.) 198; nor by submitting to account in the ordinary form, Ibid.</p> <p>If the estate be insolvent, he can only come in pro rata with the other creditors, Smith v. Bryant, 60 Ala. 335 ; Jenkins v. Jenkins, 63 Ind. 130; Stevenson v. Schriver, 9 dill <& Johns. 334; Payne v. Pvsey, 8 Bush 564.</p> <p>He need not file his claim with the probate court, nor present it to himself for allowance, Sanderson v. Sanderson, 17 Fla. 831; Slate v. Beigart, 1 dill 1; JFi'ench v. Winsor, 34 Vt. 403; Miller v. Irby, 63 Ala. 477 ; unless its amount •or justness be disputed, Middleton v. Middleton, 8 Stew. Eq. 115; Hoch’s Appeal, 31 Pa. St. 380; Ashton v. Miles, Jfi Iowa 564; Molly’s Estate, 5 Allen (M. IB.) 406.</p> <p>In some states, he is, by statute, required to present his claim and proceed' thereon the same as any other creditor, McLa-iglin v. Newton, 53 N. H. 531,-Flood’s Case, 16 Abb. Pr. (N. S.) 7fl7, Smith v. Chistopher, 6 T. & Q. (N. Y.) 288; Barras v. Barras, 4 Bedf. 263; Keller v. Stuele, 4 Bedf. 294; Underhill' v. Newburger, 4 Bedf 499; Gardners Case, 5 Bedf. 14; Burnett v. Noble, 5-Bedf. 69; Kearney v. McKeon, 85 N. Y. 136; Williamson v. Anthony, 47 Mo.. 299;. Wright v. Wright, 72 Ind. 149; Crosby’s Estate, 55 Cal. 574; Abbe v. Norcott, 8 N. H. 51; Buttle v. Bobinson, S3 N. H. 104; Watson y. Watson, 58: Md. 44®. See Chidester v. Chidester, 4® Ind. 469.</p> <p>After his resignation, an administrator occupies the same position towards the estate as any other creditor, Smith v. North, 13 Jur. 998; Fort v. Battle, IS Sm. & Marsh. 133 ; Smith y. Watkins, 8 Humph. 331; but see Prentice v, Eehon,. 10 Allen 353. He may retain after revocation of his letters, Blackborough v.. Davis, 1 Salk. 38. His assignee may proceed as any other creditor, Nelson v.. Stollenwerck, 60 Ala. Vfi; Snyder y. Snyder, 96 N. Y. 88; see Lowe v. Peskelty. 16 C. B. 500; Chavez v. Schmidt, 2 C. E. Gr. 257; Morrison v. Page, 9 Dañaos. He cannot assign his individual claim to himself as executor, Schreyer v. Holbarrow, 26 Hun 468; nor confess judgment for the amount of his claim to one to whom the decedent owed nothing, Bonistiel v. McMaster, 6 U. C. §- B. (O. S.) 32; Hubbard v. Hubbard, 16 Ind. 25, See, also, Phillips’s Case, & N. J. L. J. 371; 17 Am. Law Bev. 514— Rep.</p>

<p>1. A widow whose dower has not been assigned, and who remains on the homestead farm of her husband, is entitled to the crops grown thereon after her husband’s death.</p> <p>2. Administrators held to account for lambs, the produce of sheep belonging to the estate, horn after the intestate’s death, and for the wool shorn from the sheep after his death, and also for the net proceeds of the sale of milk from his cows.</p>

<p>On appeal from a decree of the chancellor.</p>

<p>When stipulations are kept out of a contract by fraud, such contract will be reformed in equity, and specifically performed.</p>

<p>When two persons employ an attorney in the same business, communications made by them in pursuance of such common retainer are not privileged'.' inter sese.</p>

<p>On appeal from a decree advised by 'Vice-Chancellor Van Fleet, whose opinion is reported in Chetwood v. Berrian, 18 Mew. Eq. 80S.</p>

The petition álso shows that the lands of the defendant company have been conveyed to the Freehold and New York Railway Company, subject to the lien of his decree, and prays for aft. fa. to make his money. The Freehold and New York Railway Company and Mr. James P. Lowrey insist that there is nothing due to the petitioner.

<p>On appeal from a decree advised by Barker Gummere, Esq., advisory master, whose opinion follows:</p> <p>The causes above stated were referred to me, as advisory master, for hearing, and by consent of counsel in open court were heard together; the proofs and exhibits taken and offered being evidence in each and all of the causes, so far as relevant in each.</p> <p>I therefore, upon said proofs and exhibits, report to the chancellor my findings of fact and of law, and the decree which I advise to be made in each of said causes.</p> <p>1. I find, as matter of fact, as follows: William James, in his lifetime and at his decease, was a director in the Mechanics National Bank of Newark, and owned one hundred shares of the capital stock. He died about January 23d, 1881; left a will, and appointed O. L. Baldwin, George F. Tuttle and his wife,' Elizabeth _ James, executors, who proved the will on February 5th, 1881, and O. L. Baldwin became the active executor.</p> <p>O. L. Baldwin, at the time of the death of Mr. James, was, and had been for many years, the cashier of said bank, and during a period of ten years prior to its failure had been continuously unlawfully paying over funds pf the bank to Nugent & Co., of Newark. As early as in the year 1874, the amount he had so unlawfully advanced was about $400,000, and the amount was continually increased, month after month, until it amounted, at the failure of the bank in October, 1881, to more than $2,000,000. This defalcation, which had been carefully concealed by Baldwin, and was not actually discovered until October, 1881, extinguished the capital stock and rendered the holders of the stock legally liable to be assessed to an amount equal to the par value of their respective shares.</p> <p>In May, 1881, Mr. Baldwin and Mr. Tuttle, two of the executors of James, consulted together respecting these one hundred shares of bank stock and agreed to sell them.</p> <p>In July, 1881, one Warren N. Trusdell, a broker doing business in Newark, called on Christian Wolters and asked him to buy fifty shares of the stock of this bank, recommending it as a good investment. Wolters agreed to buy them for $4,662.50, and by Trusdell’s direction went to the bank and handed to Baldwin his check for the above sum as and for the purchase-money of said shares of stock, and at the same time asking Baldwin “ if it was a good purchase,” to which Baldwin replied “ Yes,” and said something about the dividend. The dividend was payable on August 1st, 1881. Baldwin gave to Wolters a formal and proper “ certificate ” for fifty shares of stock, accepted the check, and after paying a part of the proceeds thereof to Trusdell, the broker, deposited the balance to the credit of the James estate in said bank. He also, as executor of James, transferred on the transfer-book of the bank fifty shares of the stock belonging to the James estate to Christian Wolters, and the proper corresponding entries were made in the stock-ledger of the bank.</p> <p>On August 17th, 1881, Oscar Keen purchased ten shares of the capital stock of said Mechanics National Bank from Oscar L. Baldwin, and paid him therefor the sum of $930. Baldwin delivered to him a formal and proper “certificate” for said shares, and transferred to Mr. Keen, upon -the transfer-book of the bank, as executor of James, ten of the shares belonging to the estate of James, and the proper corresponding entries were made in the stock-ledger; and on August 24th, 1881, Baldwin deposited the proceeds of the sale of said shares to the credit of the James estate in said bank.</p> <p>On August 23d, 1881, A. Y. Van Fleet purchased thirty shares of the capital stock of said Mechanics National Bank from Oscar L. Baldwin, and gave him his check for $2,798, as the purchase-money thereof, and received from him a formal and proper “ certificate ” for said shares. Baldwin., as executor of James, transferred to Mr. Van Fleet, on the transfer-book of the bank, thirty of the shares belonging to the estate of James, and the proper corresponding entries were made in the stock-ledger, and on August 24th, 1881, deposited $2,760 of the proceeds of the sale of said shares to the credit of the James estate in said bank.</p> <p>On September 1st, 1881, Anna M. Keen, executrix of George Keen, deceased, acting by the advice of and through her son, Oscar Keen, purchased ten shares of the capital stock of said Mechanics National Bank from Oscar L. Baldwin, and gave him her check for $935, as the purchase-money, and received from him a formal and proper “ certificate ” for said shares. Baldwin, as executor of James, transferred to her, on the transfer-book of the bank, ten of the shares belonging to the estate of James, and the proper corresponding entries were made in the stock-ledger, and on September 2d, 1881, Baldwin deposited the sum of $935 to the credit of the James estate, in said bank. This sum is of precisely the same amount as that paid to him by Mrs. Keen, by her check on the previous day, and I find that, in fact, the sum so deposited was the purchase-money of said ten shares of stock.</p> <p>On July 6th, 1881, a statement of the condition of the said Mechanics National Bank was published in the Newark Daily Advertiser, pursuant to the requirements of the act of congress (77. 8. Rev. Stat. § 5211), signed and sworn to by Oscar L. Baldwin, cashier, in which it was stated that there was “ due from approved reserve agents $1,808,174.19,” at the close of business on June 30th, 1881. The only reserve agent of the bank at that date was the Mechanics National Bank of New York, and from an account stated, made by that bank to the Mechanics National Bank of Newark, pursuant to the custom of -their mutual dealing, and stating their mutual dealings from June 16th to July 16th, 1881, and which was received without objection, then or afterward, by the Newark bank, it appears that there was, in fact, due from the reserve agent, the New York bank, only the sum of $135,007.63. The published statement aforesaid was false. If the condition of the bank had been truly stated therein, it would have shown a deficiency of assets to meet its liabilities, including its capital and alleged surplus of $1,673,166.56, and that the capital stock was not only without value, but that each holder was then legally liable to be assessed one hundred per cent, of the par value of the stock held by him for the payment of the debts of the bank. Wolters, Keen and Mr. Van Fleet had each seen this statement before making the several purchases ■of stock aforesaid, and it was one of the inducements to each to make said purchases. None of these purchasers knew that the shares they had purchased belonged to the estate of James until they discovered that fact after the bank had become insolvent.</p> <p>The Mechanics National Bank of Newark closed its doors and proclaimed its insolvency on October 31st, 1881, and on November .2d, 1881, was formally adjudged, by the comptroller of the currency, to be insolvent, and Frederick Frelinghuysen was duly appointed receiver thereof; and on November 16th, 1881, the said comptroller, pursuant to act of congress (U. S. Rev. Stat. § 515Í), assessed upon each holder of the stock of said bank the amount of one hundred per cent, of the par value of the shares held by him, and directed the receiver to collect the same.</p> <p>By virtue of this assessment, the purchasers of the aforesaid ■shares of stock from Oscar L. Baldwin became severally lawfully bound to pay, in respect of the shares respectively purchased by them, and they have severally paid to the said receiver, since the filing of their several bills in this court, the following assessed sums, together with interest thereon from November 2d, 1881, to wit: Christian Wolters, the principal sum of $2,500; Oscar Keen, the principal sum of $500; Abraham V. Van Fleet, the principal sum of $1,500, and Anna M. Keen, executrix of George M. Keen, deceased, the sum of $500, together with interest on said respective sums from November 16th, 1881, the date of said assessment.</p> <p>During the period between September 21st, 1881, and the closing of the doors of said bank on October 31st, 1881, the sum of $52,445 was drawn out from the amount deposited therein to the credit of the estate of James.</p> <p>On November 19th, 1881, Messrs. McCarter & Keen, as attorneys of the several above-named purchasers of the said shares • of stock, demanded of the defendants, the executors of James, the rescission of the. several contracts of sale of said shares; tendered the certificates for the shares and all dividends that had been paid thereon to the several purchasers, and demanded the return of the purchase-money paid by each, and that each should be indemnified by said executors against the payment of any assessment in respect to said shares of stock. These demands were ■ not complied with, and each of said purchasers filed his bill, in December, 1881, against said executors, praying that they might be decreed to pay to each the purchase-money paid by him to Oscar L. Baldwin for the said shares of stock, with interest from the'date of the purchase, and that said executors might be decreed to indemnify them, severally, against any assessment in respect to said shares, or to repay to each such amount as he might be ■ compelled to pay under any such assessment, with interest, and for general relief.</p> <p>On December 2d, 1881, and during the pendency of these causes in this court, the directors of the Mechanics Bank of Newark made a proposal to the shareholders, depositors and creditors of the bank, in which, among other things, they offered to pay to the several shareholders the amounts assessed on their respective shares, on the condition that they would transfer their shares, with all their rights therein or in respect thereto, to some person to be designated by the directors, and upon the further condition that the proposal should be accepted, in writing, by all the shareholders, depositors and creditors (excepting depositors whose deposits did not exceed $200), within sixty days from the above date. On January 30th, 1882, the solicitors of ’Wolters, Mr. Keen and Mrs. Keen, three of the oomplainants,, and the defendants, signed a stipulation, in which it was agreed that the said complainants might accept the said proposal made-by the said directors, without prejudice to the legal rights of the respective parties to the said causes; and that any moneys received by the said complainants, respectively, consequent upon the acceptance and carrying into effect of said proposal, should be credited by them respectively to said defendants on any ■amounts recovered by said complainants in tbeir said respective suits. Afterwards, and in order to avoid the transfer of their shares to the directors, if the said complainants accepted the proposal aforesaid, the solicitors of said complainants proposed to the solicitors of the defendants to sign another stipulation, agreeing that the complainants might receive the amounts of the assessments upon their respective shares from said directors, and that the shares should be assigned to the person named by said ■directors upon the final determination of the causes, and not upon signing the acceptance. The defendants’ solicitors rejected the proposed stipulation, and the complainants’ solicitors refused to sign an acceptance of the said proposal of the said directors. The money was not paid by the directors to the three complainants or their solicitors, and it is not proved that all of the shareholders, depositors or creditors of the bank, other than the three ■complainants, accepted the proposal of the directors, or that the directors waived the conditions of their proposal towards the three complainants.</p> <p>2. I find, as matter of law, as follows: the fact that the several complainants, at the time that they respectively purchased these shares of stock, had no knowledge that the shares belonged to the James estate, does not change the equities between the several complainants and the defendants. The sale was, in fact, made by Oscar L. Baldwin, as an executor of the will ofWilliam James, after consultation with his co-executor, Mr. Tuttle; the .shares were transferred by him, as such executor, and the proceeds of sale were deposited to the credit of the James estate, and formed part of the amount subsequently drawn out of the bank by the executors, or some of them. There is nothing in the testimony to warrant the conclusion that either of the complainants was dealing with Baldwin upon his exclusive responsibility, and upon the discovery that he was in fact acting as executor, and for the estate, they have the right to resort to the principal thus disclosed for such redress as they are entitled to. Benjamin on Sales § 837; Perth Amboy Co. v. Condit, 1 Zab. 659.</p> <p>The legal title to the shares in question vested in the executors •of James, from and after the probate of the will; and although they hold such title in autre droit, they had as complete a jusdisponendi as if the shares were their own proper goods, and their sale and assignment of them to bona fide purchasers would vest in such purchasers an absolute title. Sehouler on Exrs. § 239 ; Leiteh v. Wells, 48 N. Y. 585.</p> <p>And as the sales of these shares were made during the statutory year next after probate, which is allowed for the conversion and administration of the assets, the purchasers were not bound to see to the application of the purchase-money; nor were they affected by the fact that the executors sustained the relation of trustees towards the creditors and beneficiaries of the testator. Field v. Sehieffelin, 7 Johns. Gh. 150.</p> <p>Inasmuch as the will of William James does not otherwise direct, the executors of his will are one person in contemplation of law; their title and authority are joint and entire, and the act of one, within the scope of such authority, is the act of all. 1 Went. Off. Ex. eh. 9 ; Sehouler on Exrs. § 400. And it results, from this legal entirety, that knowledge acquired by, or notice given to, one executor, in the course of his administration, is the-knowledge of and notice to them all.</p> <p>But, to have this effect, such knowledge must be acquired by, or notice given to, the executor after he has entered upon his-duties, and during the course of his discharge thereof; knowledge acquired by him previously to assuming the administration cannot charge his co-executors, nor affect the estate. Sooy v.. State, 12 Vr. 394, 400.</p> <p>Oscar L. Baldwin, after he entered upon the discharge of his duties as executor, was continuously charged with the burden of administration of the assets of the estate, and, among others, of the shares in question in this cause, and it was his duty to use due diligence, to make inquiry for and ascertain any facts which would affect their value. Having, as cashier, constant access to the books and papers of the bank, and an intimate knowledge of its daily transactions, it was continuously his duty, as executor, -to avail himself of the knowledge he thus acquired respecting the value of its shares; and while it is true that he knew, before he became executor, of the defalcations he had committed before that date, it is equally true that after he became executor he was continuously committing additional defalcations, and continuously knew that the shares in question were not only valueless, but that, by reason of the ownership thereof,- the estate was liable to an assessment of one hundred per cent, of the par thereof. During all the period from the probate to the dates of the respective sales of these shares to the complainants, he was charged with the duties and acting in the office of the active ex-ecutorship of James ; it was his duty to acquire information re-' specting the condition and value of these shares, and it would be a metaphysical, not a legal, distinction to hold that his knowledge was acquired only as cashier, and that it was withheld from him as executor. The knowledge was lodged in the mind of the man during the time that he was charged with and discharging the duties of executor, and, as executor, he knew the facts.</p> <p>Even if Baldwin’s co-executors be held not to have been affected with his knowledge of the worthlessness of the shares at the time of the several sales thereof, yet, within a few months thereafter, and within the statutory year of administration, and whilst, in presumption of law, the executors still held the purchase-money thereof for the benefit of the estate, they were apprised of his fraudulent misrepresentations to, and concealment of facts by him from, the purchasers of said shares, and with such knowledge, the executors refused to make redress, and retained the moneys and benefits derived by means of such misrepresentation and concealment of facts. Under these circumstances, although, perhaps the complainants could not maintain an action for deceit against the executors, yet there can be no doubt of their several rights to rescind the contracts of sale within a reasonable time, and to require the repayment of the purchase-money and indemnity against the assessment. They did rescind within a reasonable time, and the executors, by such rescissions, and the tenders accompanying the same, were not placed in any worse position than they were in prior to these sales. Kennedy v. MoKay, 11¡, Vr. 288.</p> <p>In the case of the sale of the shares to the complainant "Walters, there were both fraudulent misrepresentation of facts and fraudulent concealment of facts by Baldwin. He not only knew that tbe shares were of no value, but that Wolters, by purchasing them, would be liable to be assessed to an amount equal to the par of the stock. He knew that these facts were vital to the transaction, and that Wolters was acting upon the presumption that those facts did not exist, and that if he knew them, he would not purchase the shares. He was, therefore, bound to disclose the facts, and to tell the truth. He did not, but, on the contrary, told Wolters that the purchase was a good investment, thus confirming like representations theretofore made by Trusdell, who conducted the negotiations for the sale as Baldwin’s broker, and who, was compensated by him. This was active fraud, and vitiated the sale.</p> <p>In the case of the respective sales to Mr. Keen, Mr. Van Fleet and Mrs. Keen, there was no misrepresentation by Baldwin, or by Trusdell to the purchasers. The report made by the bank to the comptroller of the currency was signed and sworn to by Baldwin, in the discharge of his duty as cashier; it was *a strictly official act, in that capacity, and an act required by law; it was not a representation made to these parties,'nor was it made in reference to this sale. When this report was made, he owed no duty to these purchasers, to speak as to the condition of the bank, nor did he speak to them; he was not speaking for the estate of" James, nor in reference to these sales, nor had that estate any connection with the report, nor can it be held liable for the false statements contained therein. I therefore find that Baldwin made'no false representations to the purchasers respecting these shares, or in connection with the sales thereof. But, at the time of these sales, he was ■guilty of fraudulently concealing from them the facts then known to him as executor, as, under the same circumstances and obligations, I have above stated in respect to the sale to Wolters, and that fraud vitiates the sales io them.</p> <p>If the view be taken that these executors were merely agents of the estate of James, the result would be the same. They were certainly joint agents, and notice to, or the knowledge of Baldwin, acquired in the course of such joint agency, was as effectual as notice to, and the knowledge of all the defendants. Wade on Notice % 681. .</p> <p>Or, if the more restricted view be taken, that in the matter of these sales Baldwin was acting as sole agent, yet it is clear that as against his principal, his suggestio falsi and suppressio veri in the sale to Wolters, and his suppressio veri in the several sales to Mr. Keen, Mr. Van Fleet and Mrs. Keen, gave to each of those purchasers the right to rescind the sale. Kennedy v. McKay, Ilf, Vr. 288, 290. And this right they have lawfully exercised.</p> <p>At the time of the filing of the several bills of complaint, the several complainants were, and they are now, entitled to be repaid by the defendants the several sums of purchase-money paid by each, with interest from the date of the respective payments. Each complainant was also to be indemnified against the respective assessments made by the comptroller of the currency in respect to said shares.</p> <p>Pending the suits, each of the several complainants has been lawfully compelled to pay an assessment in respect to the shares purchased by him, which was' an equitable burden upon the estate of James—and there is ño evidence before me that the proposal made by the directors was accepted by any of the shareholders, depositors or creditors of the Mechanics’ Bank of Newark. The facts that such proposal was made, of the signing of one stipulation, and of the refusal of the defendants to sign the other, were produced in evidence by the defendants’ cross-examination of Mr. Keen, and if it was intended by the defendants to set up an equity against the complainants Wolters, Mr. Keen and Mrs. Keen, arising from their refusal to accept the proposal,- it was the duty of the defendants to have proved, in addition, that their acceptance of the proposal was all that was needed to make it effectual according to its terms, and to have secured the payment of their assessments by the directors. Upon the evidence before me the three complainants were not in default. Each of the complainants is entitled to be repaid by the defendants the amount assessed upon him, together with interest thereon from the date of such assessment.</p> <p>There should be a reference in each cause to a master to ascertain the amount to be paid by the defendants to each of the complainants, and in taking the account the master must allow to the defendants such moneys as have been received by each complainant for dividends upon his stock after his purchase thereof.</p>

<p>.. On appeal from a decree of the chancellor, whose opinion is reported in Smith v. Games, 11 Stew. JEq. 65.</p>

<p>1. A bill to redeem alieged that the defendant was a mortgagee in possession ; that the complainant was owner of the equity of redemption and was ready to pay the mortgage debt. The answer alieged that the defendant had become the owner of the absolute title by purchasing the oomplainant’s equity of redemption under a justice’s court judgment against the complainant, docketed in the common pleas. The complainant filed a general replication. —Held, that the question whether the title, under the docketed judgment, was valid or void on its face, was properly put in issue.</p> <p>2. On such an issue, the proper practice in chancery is to send an issue on the legal title to be tried at law, or to retain the bill until an action can be brought at law to try the legal title, or until an action pending at law for that purpose can be determined ; and the court of equity can so control the action a.t law that the legal question may be decided. If the parties waive a trial at law, the court of equity is at liberty to decide the question for itself.</p> <p>3. Tasto v. Klopping, 14 Vr. 44s, re-affirmed.</p> <p>4. When parties have acted under a mutual mistake of law, and the party jeopardized thereby can be relieved without substantial injustice to the other side, equity will afford redress, especially if the party to be benefited by the mistake invokes the aid of equity to put him in a position where the mistake will become advantageous to him.</p> <p>5. A mortgagee, having recovered in a court for the trial of small causes a judgment against the mortgagor for a debt other than the mortgage debt, docketed the judgment in the common pleas, and at a sheriff’s sale under execution from the pleas bid in the mortgaged premises, believing that she was purchasing a good title thereby. The mortgagor, believing that the mortgagee had thereby secured an absolute title, surrendered possession to her, and thereafter the mortgagee, with the knowledge of and without objection from the mortgagor, used the property as her own, and placed substantial and permanent improvements thereon. Subsequently, the mortgagor discovered that the constable’s return to the execution from the trial court was so defective as to render the docketing and sheriff’s sale illegal and void, and thereupon filed a bill to redeem.—Held, that she must pay the mortgagee the value of the improvements.</p>

<p>A firm owning, as partnership property, real estate, was dissolved by the death of one of the two partners. The settlement of the partnership affairs was proceeding in the court of chancery in a suit pending between the surviving partner and the executrix of the deceased partner, who had, by his will, acquired his interest. Under such circumstances, the parties entered into-a written contract for the sale of all the real estate to the executrix, who was to pay for it by procuring releases of some mortgages which encumbered it, and by also depositing in court §30,000, to be disposed of in the settlement. The executrix failed to perform her part of the contract, and the mortgages-having been foreclosed, a sale under a decree of foreclosure divested the interest of the parties and rendered specific performance of the contract impossible. The surviving partner filed a supplemental bill by leave of court, praying that the losses sustained by the partnership estate by the breach of the contract, should be ascertained and decreed to be paid or accounted for by the executrix.—Held,</p> <p>(1) Whether the relief asked is, under such circumstances, within the-jurisdiction of a court of equity, not decided.</p> <p>(2) If the court has jurisdiction, the relief should be granted under, the same rules which are applicable to the granting of relief by way of specific performance, and if he who seeks relief was unable to perform the contract on his part, or his conduct in the transaction was wanting in fairness and equity,, the relief should be denied.</p> <p>(3) In this case the contract could not have been performed by the surviving partner, according to its terms, and his conduct respecting it was so-inequitable as to justify the refusal of the relief he sought.</p>

<p>On appeal from decree made on the advice of Vice-Chancellor Bird, whose opinion is reported in Trenton Board of Health v. Hutchinson, 12 Stew. Eq. 218.</p>

<p>When a debtor made a conveyance, fraudulent as to creditors, to his son, taking from him at the same time a mortgage to secure certain trust moneys in his hands, a court of equity, in setting aside such conveyance on a credit- or’s bill, will validate the mortgage in behalf of the cestos que trust.</p>

<p>On appeal from a decree dismissing the appellant’s petition for a divorce on the ground of adultery, advised by Yice-Chancellor Bird.</p>