Volume 4 — New Jersey Equity Reports

Bill by cestui que trusty entitled to the enjoyment of real estate, and the receipt of the rents and profits for her life, and by the devisees in fee of the remainder, to set aside the trust, and to have the land conveyed by the trustee to the cestui que trust for life; and if that relief be denied, then for a change of trustee.

<p>A testator devised as follows:—“ I do give, devise and bequeath unto nay daughter Maria, the wife of J. R. M., all that farm, &e. now in the occupation and possession of the said J. R. M. To have and to hold the farm unto my said daughter M., her heirs and assigns for ever; not in any manner subject to the sale or disposal of her said husband, in any way, manner or form whatever.” Held, that it was not the intention of the testator to .exclude the husband of the devisee from his, estate by curtesy in the land devised.</p> <p>If a testator devise to a feme covert an estate of inheritance in fee simple, he cannot by any restriction or provision in the will deprive the husband of the devisee of his estate by the curtesy in the land devised.</p> <p>Those incidents which by law are inseparably annexed to an estate, cannot be prohibited by any condition or limitation expressed in the deed or will.</p> <p>A court of equity is as much bound by positive rules and general maxims concerning property as a court of law.</p> <p>In giving construction to a devise, the intention of the testator should be regarded unless it be contrary to the rules of law, in which case it should be considered void as well in a court of equity as of law.</p> <p>In cases of trusts executed or immediate devises, where the trusts are directly and wholly declared by the testator to attach on the lands immediately under the will itself, the construction by courts of law and of equity should be the same.</p> <p>But in cases of executory or imperfect trusts which are only directory, or prescribe the intended limitations of some future conveyance, courts of equity, in striving to ascertain the intention of testators, have not adhered strictly to the rules of construction adopted by courts of law, but have directed those conveyances-to be made in such manner as to carry out the intention of the testator, as ascertained from an examination of the whale will.</p> <p>A man cannot by will create such an estate, as by the rules of the common law he could not in his life time create by deed.</p>

<p>A testator by his will directed that when his youngest child attained the age of twenty-one years, all his real estate should be sold- or divided, whichever a majority of his children then living should think best, and invested his executors, and the survivor of them, with full power and authority to sell either at-public or private sale, as to them might seem most advantageous, all his real estate, in case it should be determined by the election of his children, as aforesaid, to make sale.</p> <p>Held, that the devisees, before electing whether to sell or divide the land, had a right to call upon the executor to decide, whether in case of a sale he would sell at public or private sale ; and if the executor did determine in what manner he would sell, and the devisees were influenced by that determination in making their election to have the property sold, the executor could not alter his determination without giving the heirs an opportunity of altering their decision upon the question of sale or division.</p>

<p>Where a testator, by his will, directs that the residuum of his estate, real and personal, shall be sold by his executors, and the moneys arising from the sale be divided among his children in a different ratio from that in which the land would have descended, the devisees take a vested interest in the proceeds of the sale of the estate, both real and personal, and the executors are bound to make Sale according to the directions of the will.</p> <p>If no sale be made by the executors, a son of the testator does not become seized of such an estate in the land as will entitle his widow to dower.*</p>

<p>The guardian of an infant cannot convey the real estate of his ward, without the authority of a court of equity; nor will the court sustain such conveyance, made either by the infant or his guardian, though the infant have received the consideration of the conveyance.</p> <p>But in the absence of fraud, the infant will be-decreed, upon recovering the land, to refund the consideration money, together with the value of the improvements on the land, arising from repairs of the buildings and fences and manuring the land, though he will not be decreed to allow the value of new buildings or other permanent improvements.</p>

<p>If the defendant by his answer admits the existence of the mortgage sought to be foreclosed, but seeks to avoid it, the matter alleged by way of avoidance must be sustained by evidence independent of the answer.</p>

Bill for injunction and relief, filed February eighth, eighteen hundred and thirty-seven.

<p>Equity will decree the specific performance of a parol agreement for the sale of land, if the purchase money has been paid, possession of the land taken by the purchaser, and improvements made thereon.*</p>

Bill by a married woman, (sueing by her next friend,) and her husband, for the recovery of a legacy bequeathed to the wife.

The bill is filed against James Herbert, surviving executor of James Herbert, deceased. The prayer is for process against said James Herbert. The subpœna issued against James Herbert generally, without stating the character in which he is sueds General demurrer.

<p>A testator devises onto his son, J. P., his mansion-house farm'in fee, “ with this reserve, that the said J. P. or his heirs afford a lawful maintenance to my daughter A. S. and her two daughters from said farm, as long as they live and should want, the same.” Ho further devises as follows: “I will that my daughter A. S. should abide, and have a lawful maintenance, and her two youngest daughters With her, on said home farm, as long as she the said A. S. lives, and her two daughters shall Want their maintenance ”</p> <p>Held, that after the death of A. S. her daughters were not bound to remain upon the home farm to entitle themselves to the provision made for them in the will.</p>

<p>The general synod of the Associate Reformed church have, by the constitution of the said church, no authority to do any act, or make any regulation, which interferes with the established order of the church.</p> <p>The act of union between the general synod of the Associate Reformed church and the general assembly of the Presbyterian church, adopted on the twenty-first day of May, eighteen hundred and twenty-two, is invalid.</p> <p>A transfer of the funds of the church, as a consequence of;the said union, and necessarily connected therewith, is also invalid.</p> <p>That portion of the Associate Reformed church which refused to acquiesce in the act of union, but maintained its separate and independent existence, retained all the rights and interest in the funds which the church possessed prior to the act of union.</p> <p>Neither the donor of trust property, nor any other person into, whose hands it may come, has a right to apply it to any other purpose than that for which it was originally intended.</p> <p>It is a well established principle, that when part of any religious association separate and establish a new society, they cease to be members of the original society, and have no longer any claim to their properly.</p> <p>Where property has been given in trust for a church not incorporated, it is competent for any person belonging to that church, on behalf of himself and ,of all others belonging to that church and entitled to the use of the funds, to come into a court of equity to enforce the execution of the trust.</p> <p>And if the church consists of various congregations, any one or more of such congregations, being incorporated, may in like manner enforce the execution of the trust.</p>

The complainant, in the bill of complaint by him filed, charges, that he, being the owner of a certain mill site in Trenton, in February, eighteen hundred and thirty-four, one William G. Cook, agent of the defendant, but not then known to the complainant to be such agent, entered into a verbal agreement With him, the purport of which was—1.

Injunction bill, filed the thirteenth of February, eighteen hundred and thirty-seven. The material charges of the bill, are set forth in the chancellor’s opinion.

<p>If a bond and mortgage, given by a resident of New-Jersey to a person temporarily residing there, but having his permanent residence and his place of business in New-York, be made and executed in- New-Jersey, but delivered to. the obligee at his place of business in the city of New-York, and the money there paid, the place of the contract is in New-York, and interest is to be computed according to the laws of that state, although the obligee be described in the bond as now of the state of New-Jersey.</p> <p>Nor will the construction be affected by the circumstance that the bond and mortgage were given to secure the purchase money of land in New-Jersey.</p> <p>Where a party’s residence is in one state, and his place of business in another, the presumption is that his contracts are made rather at his place of business than at his place of residence.</p> <p>In the absence of any direct evidence of the place in which the contract was made, the money advanced, or the papers delivered, the presumption obtains that the contract was made at the place where the person lives who is to receive the money, or where the contract is to be performed; and this presumption is not overcome by the fact that the obligee lived in another state, and that the bond and mortgage were made and executed, and the mortgage recorded there.</p> <p>If a contract is susceptible of two constructions, that should be adopted which will render it operative, rather than that which will render it void.</p> <p>The taking of usurious interest upon a bond, will not vitiate a valid instrument, but if taken by the obligee it furnishes prima facie evidence that the original agreement was corrupt.</p> <p>To constitute usury there must be a corrupt agreement to receive more than the law allows by way of interest.</p> <p>The second section of the act against usury, by which it is enacted, that all mortgages made for the payment of money lent, on which a higher interest is received or taken than is allowed by the said act, shall be utterly void, applies only to securities given contrary to the provisions of the first section of the act, and does not avoid a mortgage made and executed in this state, to secure the payment of a bond upon which a higher rate of interest is reserved, if the bond is valid by the law of the place of the contract.</p>

C. Budd, deceased. Rule to show cause why the appeal should not he dismissed. The grounds relied upon in support of the rule, are stated in the opinion of the ordinary.

The bill in this cause, filed on the twenty-ninth day of December, eighteen hundred and thirty-eight, is for the foreclosure of a mortgage, given by John McCarty and wife to the complainant, bearing date on the twenty-seventh day of April, eighteen hundred and thirty-six, to secure the payment of a bond of even date, given by the said McCarty to the complainant, conditioned for the payment of ten thousand eight hundred and twenty-two dollars and fifty cents, as follows: one…

Bill for injunction and relief, filed September tenth, eighteen hundred and forty.

<p>The specific performance of a contract will be decreed against a subsequent purchaser of the bargained premises having knowledge of the complainant’s equitable title.</p> <p>£f the contract is several, it is no ground of objection that the contract made by the complainant with divers defendants, be described in the bill of complaint as a contract between the complainant and defendant, without reference to the other parties.</p> <p>Mere lapse of time constitutes in itself no bar to a decree for specific performance.</p> <p>If the delay, under the circumstances, amounts to an abandonment of the contract, relief will he denied.</p> <p>Under an agreement made by a landholder with a turnpike company to grant land for the use of the road, upon condition that the road is located on a particular route, a covenant to grant so much land as the road should occupy, and to execute a good and sufficient deed for the same, will be construed to mean a deed in fee simple, and not merely for the term of the company’s charter.</p> <p>Specific performance of a contract for the conveyance of land decreed after the lapse of twenty-three years, the vendee having been in possession.</p>

<p>Where a bill has been filed by one of several legatees, for his share of a legacy, against the executors and the other legatees, and an interlocutory decree has been made establishing the right of the legatees to recover—the complainant cannot, after such decree, dismiss his bill to the prejudice of the legatees who are defendants, without their consent; and if such order of dismissal be made, it will be vacated and set aside, except so far as respects the complainant; and the interlocutory decree, and the master’s report thereon, will be deemed valid and effectual so far as respects the other legatees.</p> <p>Order of dismissal, as it respects parties prejudiced thereby, vacated after the lapse of three years from the date of the order.</p> <p>Where the facts are all before the court, application to vacate a decree or set aside an order may be made upon motion merely. It is not necessary to file a petition.</p>

On the fourth of January, eighteen hundred and forty-two, the complainant filed her hill of complaint against the defendant, her husband, for a divorce from bed and board, on the ground of extreme cruelty and neglect, and also for alimony and support for herself and her children.

<p>Priority of registry will not avail against actual previous notice of an unregistered mortgage.</p> <p>One witness, with corroborating circumstances, is sufficient to overcome the defendant’s answer.</p> <p>Where the master has reported the amount due upon several mortgages, and also their order of priority, and upon exceptions taken to the report the order of priority is changed, a final decree may be taken at once, without a reference back to the master.</p>

The case was this. The defendant, Rushforth, on the third of April, eighteen hundred and thirty-five, had given to the complainant a mortgage for three thousand dollars, on which the complainant advanced two thousand and four hundred dollars, and for the residue, agreed in writing to pay off a prior mortgage on the same premises, given by the person of whom Rushforth purchased, to Stephen Terhune, one of the defendants, on which there remained due six hundred dollars.

Injunction bill, filed on the eighth of December, eighteen hundred and forty-one.

The bill of complaint in this cause, was filed on the twenty-eighth day of January, eighteen hundred and forty-two, by Andrew Parsons, a creditor and stockholder of “ The Monroe Manufacturing Company,”' on behalf of himself, and of all others who should come in and seek relief by, and contribute to the expense of this suit.

<p>Where the vendor agrees to convey a farm “said to contain one hundred and thirty-five acres, be the same more or less,” and the deed executed in pursuance of the agreement describes.the land by courses and distances, and adds, “containing one hundred and thirty-five acres, be the same more or less,” if there proves to be a deficiency of over twenty acres in the quantity of land actually conveyed, the purchaser, upon a bill filed by the vendor for the foreclosure of a mortgage given to secure a part of the purchase-money, will be entitled to have an abatément or compensation for the deficiency in the quantity of land.</p> <p>Under such circumstances the court will not first direct the land to be sold, to ascertain whether it will not, at the reduced quantity, bring the price at which it was sold.</p> <p>Where land is sold as containing so many acres, more or less, if the quantity on an actual survey and estimation, either overrunning or falling short of the contents named, be small, no compensation should be received by either party : the words “ more or less,” must be intended to meet such a re-salt; but if the variance be considerable, the party sustaining the loss should be allowed for it, and this rule should prevail when it arises from mistake only, without fraud or deception.</p> <p>And it seems that the rule applies although the land is not bought or sold professedly by the acre, the presumption being that in fixing the price regard was had to ,the quantity.</p> <p>If the purchaser know the true quantity at the time of his purchase, or there are words used clearly indicating the intention of both parties not to be governed in the sale by the amount of land, the purchaser will not be entitled to relief.</p> <p>It is not a sufficient objection to allowing an abatement of the price, that the contract has been executed.</p> <p>If a case be once properly before the court, the court will do all in its power to settle the rights of all the, parties in the matter in controversy, justly and equitably by one decree.</p> <p>The fact that the purchaser lives near the land and sees it daily, can have no bearing on the question, nor can the doctrine of caveat emptor have any application. A purchaser has a right to rely upon the vendor for the number of acres, and may place implicit confidence in his statements.</p> <p>Where the deficiency in the quantity of land sold, is ascertained by the vendor between the execution of the contract of sale and the delivery of the deed, he is bound to make it known to the purchaser; and with a knowledge of the deficiency, to deliver a deed to the purchaser for a greater number of acres than the tract contains, without disclosing the truth respecting it, is a palpable fraud.</p>

In this case, a bill was filed on the thirteenth of June, eighteen hundred and forty-two, for an injunction to restrain the sale of certain real estate, levied on by the sheriff of the county of Sussex, as the property of the Stanhope Iron Company, by virtue of an execution issued out of the supreme court of this state, at the suit of the State of Indiana.

<p>If the mortgagor sells the land covered by the mortgage in different parcels and at different times, that portion of the land last sold must first be applied in discharge of the mortgage debt, and if that be not sufficient, then the other portions in the inverse order of the sales.</p> <p>And the same principle applies though the sales in parcels were made not by the mortgagor, but by a person claiming title under him.</p> <p>The rule will not interfere with a special agreement, and if one of the purchasers agree to pay off the whole incumbrance, the contract will be enforced.</p>

<p>Where one party signs an agreement to do certain acts, after the other shall have performed on his part conditions which are precedent—the conditions being performed, equity will decree a specific performance against the party who signed the agreement.</p> <p>There is mutuality in the terms of such an agreement.</p> <p>Where one party only is bound by the contract, and nothing has been done under it, will equity decree a specific performance?—Quere.</p>

<p>The jurisdiction of a court of equity in eases of waste, and nuisance is of a preventive character, and comes in aid of the courts of law. It is founded on the necessity created by irreparable mischief, and the inadequacy of pecuniary compensation.</p> <p>The diversion, of a water-course from its accustomed channel, is a nuisance, which, before the nuisance is created, may and should be restrained by injunction. No mere pecuniary compensation will answer the.ends of justice.</p> <p>The mere denial Of the complainant’s right by the defendant, in his answer, will not oust this court of its jurisdiction to interfere by injunction.</p> <p>In cases of doubt, the right should usually be established at law, before the granting of an injunction.</p> <p>A long enjoyment of a right, will entitle the party to an injunction to restrain a private nuisance, even, though the defendant may deny the right; and the court will exercise its discretion whether to order a trial at law or not, before granting an injunction—always inclining, if there be reasonable doubt, to put the case to a jury.</p> <p>Any particular use of water, or diversion from its accustomed channel for twenty years, undisturbed and uninterrupted, will raise the presumption of a grant.</p> <p>It seems, too, that as twenty years' possession will give á right, so a nonuser for the like term will put an end to it.</p> <p>To constitute a water-course, there must be a stream usually flowing in a particular direction, though it need not flow continually.</p> <p>A hollow or ravine, through which water flows only in times of rain or the molting of snow, is not, in legal contemplation, a water-course.</p> <p>If a party unlawfully turns a stream of water upon the land of an adjoining proprietor, no right to the water is thereby conferred, and the wrong doer may divert the water again at any time within twenty years.</p> <p>The diversion of a stream of water, or any part of it, by a complainant, after the allowance of a writ of injunction in his favor, and before the service of the writ, is an abuse of the process of the court.</p> <p>Costs disallowed to a successful party, on the grounds that his own unlawful act led to the controversy, and that great and unnecessary expense was occasioned by the examination of numerous witnesses.</p>

<p>It is one of the most familiar and well settled principles of a court of equity, that the vendor of real estate, has a lien on the lands sold for the purchase money.*</p> <p>The lien exists not only as against the vendee, but also as against persons holding under him with notice.</p> <p>To constitute the lien as against a purchaser under the original vendee, there must be notice of the indebtedness, and that the indebtedness arose upon the purchase of the property.</p> <p>It is not necessary that there should be notice that the indebtedness constitutes a lien on the land.</p> <p>The acceptance by the vendor of other than the personal security of the vendee, or any other circumstance showing that the vendor does not look to the land as his security, will be an implied waiver of his lien.</p> <p>The taking of the note or bond of the vendee for the purchase money, will not avoid the lien.</p> <p>No express agreement is necessary to create the lien $ it results as an incident of the sale, unless it be expressly waived, or there be such special circumstances as show that the parties did not intend the lien should exist.</p> <p>The giving of a mortgage by the purchaser, for a part of the purchase money, to a third party, on the day of the purchase, will not affect the Hen, as between the vendor and vendee.</p>

Bill for specific performance. Demurrer for the want of equity. This was an amicable suit, for the purpose of obtaining the opinion of the court upon a question of law. The nature of the case is clearly stated by the complainant’s counsel.

<p>The court will not by injunction protect a party who has been erroneously put into possession of land under a writ of restitution, especially where his title has not been established at law.</p> <p>It seems that a party has no right to a discovery, nor to the production of title deeds relating alone to his adversary’s title.*</p> <p>The purchasers of real estate are entitled to be heard before any decree is made impeaching the validity of the sale under which they claim title.</p> <p>Where a right has been repeatedly established at law, or where the same right is subject to be controverted by different persons, a court of equity may put an end to litigation by restraining suits at law and settling the whole controversy, or if need be, by directing a single trial at law.</p> <p>But the court will not interfere to quiet the possession of a party, where there has been no trial of the right at law, and where there is but one adverse claimant.</p>

Burn of interpleader. The ease was this. Zachariah Barrow, in and by his last will and testament, bearing date on the thirtieth day of July, in the year of our Lord seventeen hundred and twenty-five, duly executed to pass real estate, gave and devised as follows: “Imprimis.

<p>Upon a motion for an injunction, and the appointment of receivers, under-the act, entitled, “An act to prevent frauds by incorporated companies,” the-primary question is, whether the corporation he insolvent or not.</p> <p>If it be a balancing question, and the course of those who manage the affairs of the company appears to be upright and just, the doubt should be resolved in favor of the rights of the company.</p> <p>It would be unwise and impolitic to interfere with any corporation, so long; as they are acting with an honest purpose, unless their condition is hopeless, or their course of action such as, to jeopard the interests of creditors and the public.</p> <p>The mere opinions of witnesses in regard to the insolvency of á company, without referring to the facts upon which their opinions are founded, are entirely insufficient, and can never form the basis for the action of the court.</p> <p>The affidavits of the complainants, made after filing the bill, are not competent to be read upon a motion for an injunction and the appointment of receivers.</p>

Bill for the redemption of real estate, sold by virtue of executions against the complainant, and purchased, as the bill charges, for his benefit, and under a parol agreement that he should be permitted to redeem, upon paying the purchase money bid at the sale.

Bill filed fifth of April, eighteen hundred and thirty-nine, for the specific performance of the following agreement:— “ Articles agreed upon between Charity Auble and George? Pickle, both of the township of Washington, county of Morris and state of New-Jersey, this thirtieth day of December, in the year of our Lord one thousand eight hundred and thirty-seven.

Bill for specific performance. The bill states that the complainant, having recovered a judgment in the supreme court of this state, against Reuben Groves, caused execution to be issued thereon, to the sheriff of the county of Mercer, by virtue whereof the sheriff levied, among other things, upon all the right, title and interest of the said Groves, in a house and lot of land in the city of Trenton.

<p>It is not competent to show by parol, that at the time of executing a bond, the obligee agreed that the obligor should not be personally liable, but that the obligee would look to the mortgage security for payment.</p>

The bill in this cause was filed on the twenty-fourth of January, eighteen hundred and forty-two, by Ann P. White, George Emlen Hare, Rebecca N. Paxson, Wiliam R. Skillrnan and Hetty his wife, Garret Hulfish and Abby his wife, Mahala Voorhees, The Rector, Wardens and Vestrymen of Trinity Church, in the borough of Princeton, Eliza Jerome and Hansen Vanest, all of the county of Mercer, in the state of New-Jersey; John F. Willits and Mary P. Willits his wife, and Elizabeth…

<p>After an award has been executed, the court will not set it aside upon the ground that the arbitrators were not sworn.</p> <p>Where in account has been settled by arbitrators, and a bond and mortgage given for the sum awarded to be due, the court will not, except in case of gross wrong, permit the account to be re-investigated, or the validity of the award to be contested.</p>

<p>The party calling the subscribing witness to an instrument, is not concluded by his evidence, and if the witness deny the execution of. the instrument, other witnesses may be called to establish it.</p> <p>A mere equity cannot be sold by virtue of an execution at law.</p> <p>It seems that the equity of redemption of the mortgagor cannot be sold upon an execution at law after the mortgagee has been let into possession.</p>

The complainant, on the twentieth day of October, eighteen hundred and forty-one, filed his bill of complaint for foreclosure, sale, &c., on a mortgage made and executed to him, by “The Morris Canal and Banking Company,” an incorporated company of the state of New-Jersey.

<p>By the commission and explanatory instructions to lord Cornbury, all the ecclesiastical jurisdiction of the province of New-Jersey relating to “ the collating to benefices, granting licenses for marriages, and probate of wills,” was reserved to the governor. He was not only ordinary, but metropolitan of the province. He had no superior but the queen in council, and no subordinates. His jurisdiction over these subjects was sole and exclusive.</p> <p>This constitution of the court continued till the revolution, and Was adopted by the convention which framed the constitution of the State in seventeen hundred and seventy-six.</p> <p>For one hundred and forty years, the governor or ordinary has been the only judge of probate known to the constitution of New. Jersey.</p> <p>The surrogates appointed by the governor were mere deputies, subject to the control and supervision of the ordinary, and to be removed at his pleasure.</p> <p>By the appointment of surrogates, the ordinary did not in the least curtail his own jurisdiction. Whilst he held appellate jurisdiction oVer their acts, his own original jurisdiction remained entire.</p> <p>The surrogates did not hold to the ordinary the relation which the English ordinaries hold to their metropolitan. The ordinary retained jurisdiction of all cases. The surrogate, acting as his deputy, had also jurisdiction of all oases submitted to him, unless some special restriction were inserted in his commission.</p> <p>The doctrine of bona notahilia had never any placo in this state.</p> <p>The surrogate and the orphans’ court, in matters of probate and administration, were left, by the act of seventeen hundred and eighty-four, which established the orphans’ court, to occupy the same relation to the ordinary, which previous to that statute the surrogate alone had occupied.</p> <p>The act of eighteen hundred and twenty is similar in this respect to the act of seventeen hundred and eighty-four.</p> <p>The fact that the appointment of his surrogates has been taken from the ordinary and conferred upon the joint-meeting, does not in the least alter their relative jurisdictions or powers.</p> <p>The surrogates are still, in the language of the act of eighteen hundred and twenty, the ordinary’s surrogates, and in effect his deputies.</p> <p>The ordinary has the same original and appellate powers now that he ever had.</p> <p>The original jurisdiction of the ordinary over- the probate of wills and the granting of letters of administration, is general and full, and not limited and special.</p> <p>The acts of seventeen hundred and eighty-four and eighteen hundred and twenty, arc merely declaratory, so far as they attempt to specify the subjects of the jurisdiction of the ordinary or of his surrogates.</p> <p>The ordinary has, by virtue of his general powers, undoubted jurisdiction in the matter of the probate of a will, whore the testator, at the time of his death, resided in a foreign state, and where the will has been proved there.</p> <p>The jurisdiction of the ordinary in such cases is complete, without the aid of any statute, at least where the original will is produced.</p> <p>Whether he may, under such circumstances, grant letters testamentary upon the production of an exemplified copy of the will, is perhaps doubtful.</p> <p>Whether, since the acts of seventeen hundred and eighty-four and eighteen hundred and twenty have limited the surrogate’s jurisdiction to his own county, he may grant probate of a foreign will independent of the statute, Seems doubtful.</p> <p>The jurisdiction of the ordinary is not taken away or impaired by the act of eighteen hundred and twenty-eight, which authorizes surrogates to grant letters testamentary upon an exemplified copy of a foreign will proved in another state. The ordinary may proceed independent of the statute, nor is he bound by the terms or the equity of that statute to exact security of foreign executors.</p> <p>£f one executor of a foreign will proved in another state, has applied for probate under the statute, another executor may produce and prove the original will independent of the statute.</p> <p>Nor is it necessary that the executor who produces the original will should prove it before the same surrogate who granted letters testamentary to his co-executor.</p> <p>He may prove it before the ordinary, or perhaps before another surrogate. The applications are distinct and independent.</p> <p>When, however, the executors have all taken out letters, they are co-executors of the will, and must sue and be sued jointly, in the same manner as if they had all proved the.will at the same time and before the same officer.</p> <p>The jurisdiction of the ordinary is concurrent with that of his surrogates, and whenever a surrogate has obtained cognizance of a particular case, the ordinary cannot interfere pendente lite.</p> <p>He may review the surrogate’s proceeding by appeal, but in no other way.</p> <p>A certified copy of the surrogate’s proceedings on an application for probate, has the effect of a record, against which no averment will be admitted by the ordinary. '</p> <p>If it appear by the certified copy of the surrogate’s proceedings that probate was granted by him on the application of both of the executors, one of the executors will not be permitted to prove, by way of destroying the effect of that, record as evidence against him before.the ordinary, that his name was used in the application to the surrogate without his consent.</p> <p>A caveat is incident to all ecclesiastical courts, and prevents the case from being proceeded in without the caveator being heard.</p> <p>It is a general rule, that all persons who may be injured by admitting a will or codicil to probate, may caveat against it.</p>

Bill for an injunction to restrain proceedings at law filed, and an injunction issued, on the twelfth of December, eighteen hundred and forty-three. The defendant filed his answer on the third of January, eighteen hundred and forty-four, and gave notice of a motion to dissolve the injunction at the ensuing January term. On the eighteenth day of January the complainants filed exceptions to the defendant’s answer, for insufficiency.

On the twenty-fourth of January, eighteen hundred and forty-four, the receivers of the Morris Canal and Banking Company reported to the court, that the existing lease of the canal being about to expire on the first day of April, then next, they had received various proposals for renting the same; that upon deliberation, they had decided to give the term to Mills and Sykes, the present lessees, subject, however, to the approval and confirmation of the court, and asking the…

<p>The report of a master upon the accounts of receivers requires confirmation, and may be excepted to. The several items of the acount may be investigated.*</p> <p>It seems that a creditor is not allowed the costs of proving his claim before the master. But a creditor.complaining of the proceedings before the master in settlement of the receivers’ accounts may be allowed his costs, to be paid out of the fund, or by the receivers, at the discretion of the court.</p> <p>Notice should be given of an application on behalf of the creditors, for leave to file exceptions to the master’s report. An order for. leave to file exceptions, made without notice, discharged.</p>

<p>A party under an attachment for Contempt for an alleged breach of an injunction, is not confined to his answers to the interrogatories exhibited to him, but may examine witnesses to exculpate himself from the charge.</p> <p>Should the depositions on the part of the defendant be taken by leave of the court?—Quere.</p> <p>The party alleging a contempt of court by breach of an injunction, must make it out clearly to the satisfaction of the court.</p> <p>If the accused deny the contempt, or do not clearly show it by his answers, the prosecutor may examine witnesses to prove it.</p> <p>The command of an injunction must be implicitly obeyed, but it is the spirit and not the letter of the command to which obedience is required.</p> <p>An attachment for contempt, being in the nature of a criminal proceeding} Costs are not usually allowed.</p>

This bill was filed by legatees under the will of John Terrill, deceased. One of the objects of the bill was, to recover from the surviving executor the dividends upon certain turnpike stock, and to have, the stock itself divided among the legatees. The bequest was as follows. “Item.

<p>A court of equity will sustain an original bill filed to correct a former decree-of the same court.</p>

<p>Direct evidence is not required to sustain the charge of adultery.</p> <p>The circumstances to sustain the charge must be sachas to lead the guarded ' discretion of a reasonable and just man to the conclusion' that the crime has been committed.</p>

<p>The general rule is, that an injunction properly granted, will not be ^dissolved till all the defendants have answered.</p> <p>It is the duty of the complainant to take the requisite steps to compel an answer from all the defendants, and if he neglect to do so, the injunction may be dissolved though h part only of the defendants have answered.</p> <p>If the defendant, upon whom rests the gravamen of the charge, answers, denying the whole equity of the bill as against him, the injunction will be dissolved.</p>

<p>A court of equity will not interfere by injunction, in a case of naked trespass,, where there is a full remedy at law.</p> <p>But for the purpose of quieting a possession, or preventing a multiplicity of actions, or where the value of the inheritance is in jeopardy, or irreparable mischief is threatened, in relation either to mines, quarries or woodland, the court will interfere by injunction, even against a person acting under a claim of right.*</p> <p>The injury may be irreparable either from the nature of the injury itself, or from the want of responsibility in tho person, committing it.</p>

<p>The purchaser of a mere equity of redemption purchases a right, and does not assume an obligation to redeem. He may at his pleasure give up the mortgaged premises in satisfaction of the incumbrance.</p> <p>He is liable to the extent of the value of the premises, and not beyond it.</p> <p>But if by the terms of the sale the mortgage money is to be taken as a part of the consideration, equity raises upon the conscience of the purchaser on obligation to indemnify the mortgagor against the mortgage debt.</p> <p>And if the debt be afterwards paid by the mortgagor, equity will compel the purchaser to refund the money so paid.</p>

<p>If a bond and mortgage are paid by the tenant of the equity of redemption, they are discharged as to all subsequent incumbrances.</p> <p>The tenant of the equity of redemption, by purchasing the mortgage debt, thereby extinguishes the incumbrance on his land.</p> <p>And if the bond and mortgage so paid by the owner of the equity of redemption, bo assigned to a third party at his request, they acquire by such assignment no greater efficacy than they would have had if delivered directly to the owner of the equity of redemption.</p> <p>Such assignee could not have enforced the payment of the debt against the owner of the equity of redemption, nor could he have claimed priority against other incumbrances upon the same premises.</p> <p>If such assignee assign the bond and mortgage to a third party at the request and for the benefit of the owner of the equity of redemption, as against him the lien of the second assignee is good. The mortgage, as against him, acquired new life on its transfer, but it cannot be restored to its lost priority.</p> <p>The mortgage being but tho accessory, when the bond is paid the mortgage is discharged.</p> <p>The assignee of a bond and mortgage can acquire by virtue of the assignment no greater interest than was held by tho assignorj all the equities affecting the assignor pass with the assignment to and against the assignee.</p>

This was a motion to dissolve an injunction, granted upon the filing of the complainant’s bill, to restrain the defendants, Esler and Bruce, from proceeding at law to recover a bond given by the complainant. The material facts of the case, and the grounds relied on for a dissolution of the injunction, are stated-in the chancellor’s opinion.

The principal design of the bill filed in this cause, was to restrain the defendant by a perpetual injunction, from proceeding at law upon a judgment recovered against the complainants, upon a sealed bill, given by their testator, and to avoid the obligation as fraudulent.

<p>The receivers appointed under the act, entitled, “An act to prevent frauds by incorporated companies,” derive their power wholly from the statute. They have no authority which is not conferred by the act.</p> <p>It is not necessary that the power should be expressly conferred. It is sufficient if it can be fairly implied from the general scope of the statute, or as incident to a power expressly given.</p> <p>The receivers have power to administer oaths to Witnesses in matters pending before them, which they are empowered by the statute to hear and determine.</p> <p>The receivers, in the admission or rejection of testimony, are to be governed by the rules of evidence.</p> <p>The rules of evidence are generally the came in equity as at law.</p>

<p>Though there be no express evidence of the delivery of an ante-nuptial agreement, and though it be found in the husband’s possession after his death, its delivery will be presumed, if its due execution be proved, and it appear that it was recognized by the husband.</p> <p>If an executor receive the effects of his testator, without applying them in due course of administration, his estate becomes liable for the money so received, and his executor may be called upon in equity to pay the legacies in due course of the administration of the assets which came to his hands.</p>

<p>Equity will enforce a post nuptial settlement made in pursuance of a parol ante-nuptial agreement.</p> <p>Such settlement cannot be considered voluntary.</p> <p>The declarations of the husband, made during coverture, and shortly before the execution of the settlement, are not evidence of the ante-nuptial agreement.</p> <p>Nor will a recital of such agreement in the deed of settlement, be evidence of the agreement, except as against the husband and persons claiming under the settlement.</p> <p>A deed of settlement made by a husband in favor of his wife, after marriage, in pursuance of an alleged parol ante-nuptial agreement, there being no proof of such agreement but the declarations of the husband and the recital in the deed, held void as against the creditors of the husband, whose debts were in existence at the date of the deed.</p>

<p>Possession, to constitute notice of a claim of title sufficient to put a purchaser on inquiry, must be an actual possession, manifested by notorious acts of ownership, such as would naturally be observed by and known to the public.</p> <p>The grantee of a bona fide purchaser without notice, is not to be charged with the incumbrance or fraud, although known to such grantee before he acquired his title.</p>

Bill for a legacy. The bill states that'Josiah Kay, late of the county of Gloucester, by his will duly executed, bearing date the eleventh of September, eighteen hundred and forty-one, among other things, gave and devised as follows, viz: “Ido will and bequeath all the residue and remainder of my undivided estate, both real and personal, to my eight children, to be equally divided, share and share alike, to each one as named and designated as follows, viz: My son, Jacob Kay,…

<p>Where a testator charges his lands with the payment of legacies, and devises the use of the land to his wife as long as she remains his widow, in lieu of her dower; if the widow accepts the devise, she takes it subject to the incumbrance of the legacies.</p> <p>The settled principle of equity is, that he who accepts a benefit under a will, must conform to all its provisions and renounce every right inconsistent with them.</p> <p>There is no rule distinguishing between the widow and other devisees.</p> <p>The devisees under a will, by accepting the devise, assume the payment of the legacies charged on the real estate, in the proportion of their respective estates in the land devised; and a purchaser under one of the devisees must bear his proportion of the Charge.</p> <p>Upon a bill by husband and wife for the recovery of a legacy bequeathed to the wife, she is entitled to a reasonable provision but of the legacy before decree in favor of the husband.</p>

<p>If one of several joint mortgagees dies, his representatives must be made parties to a bill affecting the rights or interests of the mortgagees. Such bill cannot be died by or against the survivors only.</p> <p>If the effect of granting the prayer of a bill will be to relieve the receivers of an incorporated company from a portion of their duties, and to effect, pro tanto, a removal of the receivers, they must be made patties.</p> <p>Under the act, entitled, “An act to prevent frauds by incorporated companies,” the receivers have authority to compel a disclosure of the knowledge possessed by any person of the affairs "and transactions of the company, and a creditor may have such disclosures, Upon a proper application for that purpose to the receivers. He cannot maintain a bill for such discovery.</p> <p>Not can a bill be maintained by a creditor of an incorporated company, after the appointment of receivers, to settle the validity and priority of claims and incumbrances upon the property of the company. It is the duty of the receivers to settle priorities, and in so doing to decide upon the Validity of She claims against the company.</p> <p>Nor can a bill be sustained by such creditor to inquire into the validity of assignments or transfers of property made by the company. This also is within the province of the receivers.</p> <p>Where a bill charges that an act of the legislature is contrary to the constitution of the United States, and in violation of the rights of the complainant, and illegal and void, the court will not, under the general prayer for relief, declare such act unconstitutional or void.</p>

The bill states that on the first of August, eighteen hundred and thirty-nine, Frances S. Hedden, then the wife of Z. Hedden, since deceased, was, and for many years had been, in her own name, or in the name of some person in trust for her. seized and possessed of valuable real and personal property in her own right, and to her own separate and individual use, secured to her during her coverture by an ante-nuptial contract, in the words or to the effect following, that is to…

<p>To entitle a defendant to the dissolution of an injunction, he must deny the whole equity of the bill, upon which the injunction is based. He must answer directly and without evasion, and must not merely answer the several charges literally, hut he must traverse the substance of each charge.</p> <p>Where there are particular charges, they must be answered particularly and precisely, and not in a general manner, though the general answer may amount to a full denial of the charges.</p> <p>The defendant must answer upon his own knowledge, and not upon information and belief; otherwise the injunction must be retained till the final hearing.</p>

<p>The prerogative court will, in a summary manner, upon mere motion, inquire into the validity of an order previously made by the ordinary for the prosecution of an administrator’s bond.</p> <p>The validity of the order cannot be inquired into by the court in which the action is brought upon the bond.</p> <p>The usual and proper practice on applications to the prerogative court, is to proceed by petition, duly verified, setting forth the facts upon which the application is founded; but the court will not, for the mere want of a petition, set aside an order otherwise regular.</p> <p>It must appear that an order for the prosecution of an administrator’s bond was made at the request of a party aggrieved.</p>