Volume 40 — New Jersey Equity Reports

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

<p>Bill for advice and relief. On exceptions to roaster’s report and on final hearing on pleadings and proofs.</p>

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

<p>| A testatrix gave the residue of her estate, real and personal, to her sister, “ to have and to hold the same in trust for my two children, * * * the interest to be paid to them at least once a year, they to share and share alike,” with an unlimited power of sale in the trustees, and a discretionary power to use part or all of the principal for the children’s benefit, “ but it is my special desire not to have the principal used if it can be saved for my two children.”— Held, that the children were entitled to the corpus of the estate as tenants in common, and that one of them having died after the testatrix, leaving a husband and son surviving, her share of the real estate, upon the death of her son, descended, subject to her husband’s curtesy, to those who would have been entitled, under the statute, had the son survived his father.</p>

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

<p>In 1873 the township of Linden opened and graded an avenue, and caused an assessment for its share of the costs thereof to be laid on the land in controversy. In 1874 the owners of that land gave a mortgage thereon to complainants. In 1879, defendants being advised that the assessment was invalid, caused a re-assessment of the premises to be made, under a statute passed in 1878, which provided for re-assessments, and that from and after the filing of the map and report of the commissioners, the assessments should be and remain a lien on the property assessed, notwithstanding any devise, descent or alienation thereof, or any judgment, mortgage or encumbrance thereon. The complainants became the owners of the premises in 1880, under foreclosure of their mortgage, to which suit defendants were not made parties. On a bill to compel defendants to redeem — Held, that the statute of 1878 is constitutional, and that the lien of the re-assessment related back to the time of the original assessment, and was, consequently, prior to that of complainant’s mortgage.</p>

<p>On April 27th, 1850, a mortgage was given by John T. Cronley and his wife, Bridget, on the house and lot in which they then lived. On May 13th, 1850, the mortgagee assigned it to Z. S. C., who, on April 27th, 1857, assigned it to Bridget, and she, on August 13th, 1880, assigned it to complainant. John T. Cronley died in California on April 13th, 1854, and his widow, Bridget, and their children continued to occupy the premises, her dower therein never having been assigned. There was no administration on his estate. At various times between October 16th, 1861, and December 18th, 1873, Bridget gave four mortgages on the premises, which are now held by one of the defendants. On April 12th, 1872, Bridget received the moneys for the taking of a portion of the premises for a public road and for damages thereto, and she spent a part of those moneys in cutting down the front of the lot to the grade of the public road. On foreclosure of complainant’s mortgage — Held, (1) that Bridget was not, by virtue of her possession of the premises, obliged to pay the annual interest on complainant’s mortgage; (2) that the unexpended balance received by her from the public road condemnation should be credited on complainant’s mortgage as of the day when she received the moneys ; (3) that the other mortgages are liens only on Bridget’s interest in the premises as widow, although, when she gave them, she held complainant’s mortgage, and assigned it to him afterwards.</p>

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

<p>In a suit brought by stockholders of a foreign corporation against that corporation and another corporation to which it had leased its road, lands &c., all of which are out of this jurisdiction, seeking relief in regard to the transactions of those corporations with each other, the court, on demurrer, declined to take jurisdiction, on the ground that the courts of New York were the proper forum for the litigation.</p> <p>Note. — A court of chancery will not ordinarily interfere with lands in another state, although its jurisdiction be admitted, Hager v. Stevens, 1 Hal. Gh. 374; People v. Central R. R. Co., 48 Barb. 478, 4% N. Y. 283; Port Royal R. R. Co. v. Hammond, 58 6a. 523; as in case of an alleged waste, Oragin v. Lovell, 88 N. Y. 258; see Cobb v. Griffith Land Co., 12 Mo. App. 130; Hale v. Lawrence, 1 Zab. 714.</p> <p>Nor will an action at law lie, as for an injury done by the diversion of water in another state, Watts v. Kinney, 23 Wend. 484, 6 Hill 82; see Thayer v. Brooks, 17 Ohio 489.</p> <p>A court of equity cannot compel stockholders residing here to pay for stock subscribed to a foreign corporation, Bank of Virginia v. Adams, 1 Pars. Eg 534; Morris v. Stevens, 6 Phila. 488; see 12 Alb. L. J. 192 ; nor try, in a col lateral way, a question of a violation of its charter by a foreign corporatio Silver Lake Bank v. North, 4 Johns. Ch. 370; nor compel a distribution of j, assets among the stockholders, even when the trustees reside here, Redmoná Enfield, Manuf. Co., 13 Abb. Pr. (N. S.) 332 ; nor determine a dispute beUveen bona fide stockholders on one side, and those claiming to be stockholders! an officers on the other, Wilkins v. Thorne, 60 Md. 253; nor can a foreigfi co struction company enforce specific performance of a contract against a iorei corporation and a citizen of Massachusetts, to deliver bonds and stock in pa ment of work to be done by the construction company in another state, although the railroad company had an office in Massachusetts, and liad appeared by attorney, Kansas Go. v. Topeka R. R. Co., 135 Mass. 34.</p> <p>Whether the personal liability of stockholders to creditors of a foreign corporation can be enforced elsewhere than in the state creating such liability, Aultman’s Appeal, 98 Pa. St. 505; Erickson v. Nesmith, 4 Allen 833, 15 Cray 881, 46 N. H. 378; Rice y. Merrimack Co., 56 N. H. 114; Fish v. Conn, 16 Fla. 488 ; Derrickson v. Smith, 3 Dutch. 166 ; First Nat. Bank v. Price, 33 Md. 487; Bird v. Hayden, 1 Robertson (N. Y.) 383; Merchants Bank v. Bliss, Id. 391, 85 N. Y. 418 ¡ Ex parte Van Riper, 80 Wend. 614; Halsey v. McLean, 18 Allen 438.</p> <p>A non-resident cannot maintain a suit in equity here against a foreign cor->ration, Smith v. Mutual Life Ins. Co., 14 Allen 336; Brooks y. Mexican Nat. fist. Co., 18 J. & S. (N. Y.) 881; Lathrop v. Union Pacific R. R. Co., 1 Mcfliar 334; nor can shares of the stock of a foreign corporation, owned by a r n-',rcsidont, be attached >at the suit of a non-resident creditor, Plimpton y. ]3igetow, 93 N. Y. 593 ¡ Taft y. Mills, 5 R. I. 393; Moore y. Qennett, 3 Tenn. ~Ui. 375; Cold v. Housatonin R. R., 1 Gray 484; see, howeyer, Burlington nd ill R. 11, Co. v. Thompson, 31 Km. 180 ; Morgan y. Neville; 74 Pa. St. 58 ; Pierce v. Orompion, IS R. I. 31%; Bushel v. Com. Ins. Co., 16 Serg. & R. 173; Wilson v. Banforth, Jfl 6a. 676.</p> <p>Whether a receiver of a foreign corporation may be appointed here, Be Benier v. Brew, 67 Barb. 438, 39 How. Pr. 466; Stafford v. American Mills Co.} 13 R. I. 310 ; Redmond v. Hoge, 3 Hun 171; Henry v. Stuart, 14 Phila. 110; O'Brien v. Chicago R. R. Co., 4 Abb. Pr. (N. S.) 381; see Smith v. St. Louis Mut. Ins. Co., % Tenn. Oh. 60%, 6 Lea 564; State v. Northern Central R. R. Co., 18 Md. 193.</p> <p>An action brought in New York against the .directors of a foreign corporation, to compel them to apply its future net earnings in paying past-due dividends on its preferred stock, was sustained, Prouty v. Mich. Southern R. R., 1 Hun 655, 4 T. & O. %30. Contea, Williston v. Mich. Southern R. R., 13 Allen 400.</p> <p>An injunction to restrain a foreign corporation from using the proceeds of an issue of stock, alleged to be illegal and void, and appointing a receiver of such proceeds, was allowed in New York at the suit of stockholders residing in New York, Fisk v. Chicago R. R. Co., 53 Barb. 513, 4 Abb. Pr. (N. S.) 878.</p> <p>Under the New York code, an action brought by non-resident and resident stockholders against a foreign corporation for an account, and to set aside as void a purchase of another corporation’s property by the defendants, was dismissed as to the non-resident plaintiffs, and sustained as to the residents, Ervin v. Oregon R. R. Co., %8 Hun %69, 35 Hun 544. — Eep.</p>

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

<p>Executors’ verbal statements to a creditor of the estate, that his claim was all right, and that they would pay it as soon as they had enough money on hand to do so, will not excuse such creditor’s neglect to present the claim to them formally within the time limited by the order of the court, nor estop them from setting up the order; nor will an allegation that they have wasted the estate, unsupported by a statement of the facts constituting such waste, render them personally liable to a creditor of the estate.</p> <p>Note. — That an executor or administrator is bound to plead the statutory bar after it has attached, see Wood’s Lim. $ 188; S Wms. on Errs. (6th Am. ed.) 1905 (1803); Rockport v. Walden, 54 N. H. 167, 173; Stiles v. Smith, 55 Mo. 363; Littlefield v. Eaton, 74 Me. 516; see Boynton v. Sandford, 1 Steio. Eq. 184; and his general request to a creditor of the estate for delay, or an assurance that the debt is good, will not prevent the operation of the statute, Langham v. Baker, 5 Baxt. 701; Loyd v. Loyd, 9 Baxl. 406; Harrington v. Rich, 6 Vt. 666; see Harrison v. Jones, 33 Ala. 258; Sutton v. Burruss, 9 Leigh 381; Ohesmtt v. McBride, 1 Heisk. 389; nor his admissions as to the correctness of the amount of the claim, Clark v. Davis, 32 Mich. 154; nor his knowledge or notice of the existence thereof, McDowell v. Jones, 58 Ala. 25; Pike v. Thorp, 44 Conn. 460; see Steuart v. Carr, 6 Qill 430; Perry v. West, 40 Miss. 233 ; Qanseooort v. Nelson, 6 Hill 389.</p> <p>In some states, by statute, eauitable relief is authorized where “ peculiar circumstances ” have prevented the creditor from presenting his claim in due time, Brownell v. Williams, 54 Towa 353; Baldwin y. Dougherty, 39 Iowa 50 ; Wilcox y. Jackson, 57 Iowa 278; see Waltham Bank y. Wright, 8 Allen 121; Jenney y. Wilcox, 9 Allen 245 ; and, in some instances, without the aid of such statutes, relief has been granted in equity for the representative’s fraud, or on some other equitable ground, Glifton y. Haig, 4 Desauss. 330; Bose v. Clark, 1 Boot 229 ; Dickey v. Corliss, 41 Vt. 127; see Stroud y. Barnett, 3 Dana 391; Clark y. Hogle, 52 III. 437; Hales v. Holland, 92 111. 494; Fairfield y. Fair-field, 15 Gray 596; Moody v. Harper, 38 Miss. 599; Wilkins y. Finch, Phil. (N. C) Eq. 355; Bagsdale y. Holmes, 1 Bich. (N. S.) 91; but the claimant must establish a clear case, Blanchard v. Williamson, 70 III. 647; Given v. Whitmore, 73 Me. 374; and relief has been refused for want of jurisdiction, Winegar y. Newland, 44 Mich. 367; Cooper y. Lyons, 9 Lea 596; Pulliam y. Pulliam, 10 Fed. Bep. 53; Brashears v. Hicklin, 54 Mo. 102; Tazewell v. Whittle, 13 Graft. 329; see Packard v. Swallow, 29 Me. 458; Martin v. Campbell, 35 Ark. 137; Long v. Mitchell, 63 Ga. 769.</p> <p>In Fmson v. Ivins, MS. N. J. Ghan. Nov. 1888, a creditor of an estate failed to present his claim within the time limited, but the executrix made payments thereon both before and after the expiration of the time fixed by the order. The executrix afterwards confessed a judgment for a large amount, and the sheriff levied on the assets of the estate and sold them. The creditor thereupon Bled a bill in equity to recover his debt, and obtained a preliminary injunction restraining the sheriff from paying over the proceeds of his sale to the judgment creditor, on an allegation that the confessed judgment was fraudulent as to him. On motion to dissolve this injunction, Vice-Chancellor Bird ordered it to be retained until final hearing.</p> <p>' In Whitmore v. San Francisco Sav. Union, 50 Cal. 11/5, a debtor had conveyed land to his creditor, in trust to secure his promissory note. After the debtor’s death the creditor failed to present his claim to the executor in due time — Heidi that the court would not compel him to surrender his security, nor enjoin him from selling the land under a power contained in the deed of trust. — Rtvp.</p>

<p>Bills to foreclose. On demurrers to answers by way of cross-bills.</p>

<p>Bill to reform deed and quiet title.</p>

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

<p>The net income of a specified amount was given by a testator to his widow for life, and his executors were instructed to invest one-third of the principal thereof in designated securities, and were given a qualified discretion as to the investment of the balance. They were also directed to set aside from the remainder of the estate a certain amount, “ or property which they may deem to be fairly worth that sum,” one-half of which should be in safe railroad bonds, or good bonds and mortgages, and the income therefrom should be paid to his children for life, “ or to the heirs of any of my children.” They were also to “promptly pay or set aside” $10,000, the income of which should be paid to B. for life, and to B.’s father for his life, should he survive B.; and $3,000 “shall be set aside and held in trust for each of my grandchildren living at the time of my decease, and shall be paid over to each of them, as he or she shall attain their twenty-second year of age.” He then gave the residue of his estate to his surviving children, equally, and appointed his executors. —Held, that the executors were to be also trustees of all these funds; that the gift to the children was not within the rule against perpetuities, because the issue of any child dying should be entitled to the parent’s share of the income only until the death of all of testator’s children, when the principal should be divided; that a grandchild born two days after testator’s death took under the gift to each of his grandchildren “ living at the time of my decease ; ” and that, under the residuary clause, the children took the principal of the gifts to the widow and to B. after their estates for life therein had determined.</p> <p>Note. — A devise to children living at the time of H’s decease was held to include a posthumous child of A, Whitelock v. Hedden, 1 B. & P.243; Hale v. Hale, Finch 50 ; Nor they v. Strange, 1 P. Wms. 340; Clarke v. Blake, 2 Bro. C. C. 320, 2 Fes., Jr., 673, 2 H. Bl. 399; Trower v. Butts, 1S. & S. 181; Crook v. Hill, L. Pl,. (3 Ch. Div.) 773, 778 ; Groce v. Bittenberry, 14 Ga. 232; Barker v. Pearce, 30 Pa. St. 173; Laird’s Appeal, 85 Pa. St. 339 ; Bedon v. Bedon, 2 Bail. 231; Pearson v. Carlton, 18 S. G. 56. Contra, Musgrave v. Parry, 2 Vern. 710 ; Cooper v. Forbes, 2 Bro. C. C. 63; Bate v. Amherst, T. Baym. 83 ; McKnight v. Bead, 1 Whart. 213; Starling v. Price, 16 Ohio St. 29; Burke v. Wilder, 1 McCord’s Ch. 551; see Sprackling v. Banier, 1 Dick. 344; Gardiner’s Estate, L. B. (20 Eq.) 647; In re Corlass, L. B. (1 Ch. Div.) 460 ; Armistead v. Dangerfiekl, 3 Munf. 20 ; and, also, Harper v. Archer, 4 Sm. & Marsh. 99, 43 Am. Dec. 41-2.</p> <p>So, of a device to A’s children, who should be living at A’s death, and one child was born b 'fore A’s death, and one afterwards, Beale v. Beale, 1 P. Wms. 244 ; see Hyde v. Seymour, 1 Freem. Ch. 42.</p> <p>So, of a devise to J., in case he should leave no son at the time of his (testator’s) death, and a spn was bom after testator’s death, Burdet v. Hopgood, 1 P. Wms. 486; PearJ^^Cairington, L. B. (8 Ch. App.) 969.</p> <p>So, of a bond to to the obligor’s daughter, in case he have no son living at the time of his decease, and a son was born after his decease, Gibson v. Gibson, 8 Freem. Oh. 888,8 Eq. Cas. Abr. 769; Millar v. Turner, 1 Ves., Sr., 85 ; see Godfrey v. Davis, 6 Ves. 43.</p> <p>So, on a bequest to each and every of testator’s children born, or thereafter to be born, and who should be living at the time of his death, with interest to be computed from the day of testator’s death, the interest was allowed a posthumous child only from the day of its birth, Rawlins v. Rawlins, 8 Cox 485; see In re Mowlem, L. R. (18 Eq.) 9.</p> <p>So, of a bequest “to each child that may be born to either of the children of either of my brothers, lawfully begotten,” Townsend v. Early, 3 De G., F. &J. 1.</p> <p>So, of a devise for life to H., remainder to his first son in tail male &c., Reeve v. Long, 1 Salk. 838; Orisfield v. Stow, 36 Md. 139; Stedfast v. Nicoll, S Johns. Cas. 18; Watkins v. Flora, 8 Ired. 374, 18 Ired. 344; Smith v. McConnell, 17 III. 141; see McKnight v. Read, 1 Whart. 813 ; Gilles'Ae v. Schuman, 68 Ga. 858; Gulliver v. Wickett, 1 Wils. 105. ■</p> <p>So, of an executory devise, Luddington v. Kime, 1 Ld. Rayn. 807.</p> <p>A gift “to each of the three children of my niece” v.ill not embrace a fourth and posthumous child, Emery’s Estate, L. R. (3 Cí. Div.) 300; but see Goodfellow v. Qoodfellow, 18 Bear. 856; Spencer v. TKapPi. R. (9 Eq.) 507; Daniell v. Daniell, 3 De G. & Sin. 337 ; Early v. MijSlon, 15 Jur. 867.</p> <p>The same construction has been given in the case of a devise to grandchildren living at a designated time, Hall v. Hancock, 15 Pick. 255; Hone v. Van Schaick, 3 Barb. Ch. 4S8, reversed, 3 N. Y. 538 ; see Loockerman v. McBlair, 6 Gill 177; Swift v. Duffield, 5 Serg. & JR. 38; Smart v. King, Meigs 149.</p> <p>But a devise to great-grandchildren was held not to include a great-grandchild in ventre sa mere at the testator’s death, Freemanlle v. Freemanlle, 1 Cox 248.</p> <p>A gift was to C. for life, and afterwards to his children then living. C. was unmarried, but had illegitimate children living when the will was executed, of which fact it was assumed the testator was cognizant. — Held, that such children were excluded, Warner v. Warner, 15 Jur. 141.</p> <p>A trust until the youngest of the children of donor’s nephews and nieces who should be born and living at donor’s death &c., was held not to include a child in ulero, Blosson v. Blosson, 10 Jur. (N. S.) 1113, 2 Be G., J. & S. 665, reversing 10 Jur. (N. S.) 165.</p> <p>As to a testamentary provision in favor of a child in ventre, see Earle v. Wilson, 17 Ves. 528; Medworlh v. Pope, 27 Beav. 71; Blakiston v. Haselwood, 15 Jur. 272„ 10 C. B. 544 ; In re Lindsay, 5 Irish Jur. 97. — Rep.</p>

<p>1. A foreclosure bill alleged that the defendant, owing complainants $5,000, caused or procured to be conveyed to them the land described in the bill as security for that debt; that they afterwards recovered a judgment at law against him for the same debt, and that defendant, or some one under him, has been in possession of the premises and received the profits ever since the conveyance, but subject to complainants’ claim. The answer denies that defendant owed complainants $5,000 when the conveyance was made; or that he caused or procured the conveyance to be made to them ; or that it is held by them, as security for any debt of his; or that he has, since the conveyance, had the possession or profits of the premises. It admits the recovery of the judgment, but insists that a certain set-off claimed by the defendant in the action at law ought then to have been allowed, and ought now to be allowed, and also insists that the proceeds of the sale of the premises should be applied to satisfy the balance due on the judgment after deducting the amount of the set-off.</p> <p>2. A motion to suppress the answer because irresponsive, was denied, except as to the avermen ts in regard to the set-off.</p>

<p>A bill for injunction filed by tbe owners of a large tract of land, stated that they had laid it out into building lots, and had opened and dedicated streets thereon (which, however, had never been accepted by the public authorities), and had filed a map thereof in the county ^lerk’s office; that complainants had sold some of the lots, and that the present owners thereof had an admitted easement in the adjacent streets; and that complainants annually expended large sums of money for repairing all the streets, and keeping them in order, • — Held, that complainants could not enjoin defendants, who are hackmen, from ordinarily using any of the streets, in carrying passengers, to and from the railroad station in their vehicles for hire.</p>

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

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

<p>1. Without proof of notice, either actual or constructive, an unregistered title is void, and of no effect against a subsequent judgment creditor of its grantor.</p> <p>2. The burden of proving notice in such a case rests on the holder of the unregistered title.</p> <p>3. Constructive notice of an unregistered title is just as effectual as actual notice.</p> <p>4. Possession, if open, notorious, exclusive and unequivocal, will constitute notice, and such possession may exist without actual residence on the land.</p> <p>5. It is not necessary, in order to prove notice, to show that the person to-be affected by the notice knew of the possession of the other. If the possession of the other is of a character to constitute notice, then notice is a legal deduction from the fact of possession.</p>

<p>On final hearing on answers to bill of interpleader and proofs taken in open court.</p>

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

<p>In addition to- the statutory requirements as to their investments, the managers of a savings bank were, by an order of the court of chancery, directed to invest certain deposits in government bonds and other specified securities. They invested about $2,000,000 in government bonds, and then delivered tbe bonds to F. & H., in New York, who converted them into money. They also loaned F. & H. about $845,000 in cash, which had been received by them from depositors, under an agreement that F. & H. should pay them interest therefor, and should also keep in their (F. & H.’s) vault in a box “ good securities ” sufficient to cover the bonds and the cash. F. & H. failed in business, and the box, to which F. & H. alone had access, was then found to contain no securities whatever. F. & II. were unable -to return the bonds or the money, although they did turn over to the managers miscellaneous securities, appraised at nearly $2,000,000, in lieu of the bonds. The receivtr (the complainant) endeavored to collect the bonds and money of F. & II. but was unsuccessful, and he finally agreed to sell and assign to them the bank’s interest in the bonds, and to release them from all liability to the bank for the bonds'and money, on condition that they would pay him $845,000, the amount of cash loaned to them, which they did, and -he thereupon executed the release. The receiver alleges, in his bill, that, when he made this agreement with F. & H., he was ignorant of the managers’ breaches of trust, which they then concealed and denied. One of the managers is dead, and bis executors have been joined as defendants.</p> <p>The receiver filed a bill setting forth the foregoing facts, and alleging that» by reason of the difference in value between the government bonds and the miscellaneous securities turned over to the managers in lieu thereof, and by reason of the managers’ negligence, illegal acts and breaches of trust, the bank had suffered a loss of §400,000, and praying that the managers might be decreed to make that loss good. On demurrer — Held,</p> <p>(1) That F. & H. were not necessary parties.</p> <p>(2) That the receiver’s agreement with F. & H. did not release the managers’ liability for their frauds, and for their violations of the statute and the chancellor’s order; nor did it ratify their acts, because there can be no legal ratification of a fraud or tort; nor did it deprive the managers of a right to contribution from F. & H., in case they should eventually be held liable, because there can be no legal, enforceable contribution among tort-feasors; nor did it damnify them by depriving them of a right of action against F. & H., because such right, at best, was a mere right to sue F. & H. without any reasonable prospect of realizing anything from F. & H., who were and are insolvent, but, on the contrary, the receiver thereby obtained from P. & H. $845,000 for the depositors, and reduced the managers’ liability, if any, correspondingly.</p> <p>(3) That the loaning or delivering of the bonds to P. & H. was as palpable a violation of the statute and of the chancellor’s order as the loaning of the money to P. & H., because the managers’ duty and directions required them not only to invest the deposits according to law, but also to preserve those investments intact afterwards.</p> <p>(4) That the executors of the deceased manager are liable to respond out of his estate for his frauds as manager, if any be proved, and hence they are proper parties.</p> <p>(5) That the managers are trustees, and their duties and obligations and liabilities as such render them personally responsible for their breaches of trust.</p> <p>(6) That the extent of or exempt-ion from liability of any particular manager, because he was or was not a member of a committee of the board having exclusive knowledge and authority as to the investments of the bank’s funds, or otherwise, cannot be considered on demurrer.</p> <p>(7) That the fact that the receiver has, on selling $800,000 of the miscellaneous securities turned over by P. & H.,.realized about $3,000 more than those securities were appraised at, is not sufficient to sustain the managers’ contention that the receiver will, on selling the balance, presumptively realize enough more to reimburse the bank entirely, and that hence there will be no liability, in fact, on their part, as against the receiver’s averment that the bank will sustain a loss of $400,000 through their neglect and fraud.</p>

<p>On bill, answer and proofs.</p>

<p>A testatrix gave all her estate to B. for life, and gave to complainant $200, to be paid out of the property that should remain after B.’s death. V. was appointed executrix, and accepted the trust. B. survived testatrix, and died in 1854, at which time funds of the estate were in V.’s hands sufficient to pay all the legacies. V. converted the estate into money and mingled it with her own. V. paid $50 to complainant on her legacy. She died in 1879, leaving the defendant her executor. On a bill to recover the balance of the legacy— Held,</p> <p>(1) That complainant need not file or tender a refunding bond to defendant before bringing suit.</p> <p>(2) That a suggestion that there might be other claims against the estate of the first testatrix did not render necessary the appointment of an administrator de bonis non on her estate, because from the lapse of time all those claims are presumed to have been satisfied, and V., if living, could not, nor can her executor, the defendant, assert now V.'s negligence in settling that estate as a defence to this suit.</p> <p>(3) 'That the presumption of the satisjfaction of the legacy, arising from, lapse of time, is rebutted by the payment of the 150 thereon by V.</p>

<p>1. On foreclosure of a mortgage more than twenty years old, that the defendant, in taking a deed for part of the premises, within twenty years, accepted the title subject to the mortgage, is a sufficient acknowledgment to take the case out of the statute of limitations.</p> <p>2. As between the mortgagor and his grantee, the defendant, the latter is liable for the whole mortgage debt, as well as the land conveyed to him; but as between the mortgagee and the mortgagor alt the premises remain liable, because the acknowledgment of the grantee also binds his grantor, the mortgagor.</p> <p>3. The court cannot, on foreclosure, take notice of a parol partition of the premises covered by the mortgage, so as to affect the lien or claim of the mortgagee.</p>

<p>On exceptions to master's report.</p>

<p>A. court of equity cannot enjoin proceedings, on a judgment at law entered against the complainant on the verdict of a jury taken by the crier of the court, where the complainant does not allege any defence to the proceedings, ■although he does show an ineffectual attempt to have the judgment set aside at law.</p> <p>Note. — The opinions of the supreme court in this case may be found in Davis v. Delaware, IS Vr. 55, and IS Vr. 51S, and the affirmance of the latter in Davis v. Delaware, 16 Vr. 186 ; see also, 6 H. J. L. J. 11. — Bep.</p>

<p>A testator directed his executors to sell his lands within one year after his decease, or as soon thereafter as in their judgment should seem best for the interest of his estate. He gave to his wife one-third of (he use and profits of his estate for life, and the rest to his four daughters, and constituted his wife and D. executors. He died in 1873. At that time his wife and two of his daughters were living on the homestead with him, and they continued to live there until their deaths, which occurred, one in 1876, and the other in 1880. The executors were offered §30,000 for the farm in 1873, but the heirs then declined to sell at that price. The executors rented the farm, and some of the four daughters with their mother continuously occupied the homestead. The executors employed real estate agents for two years to sell the farm, and offered to take §20,000 for it. In 1876, one of the sons-in-law offered the executor, (not the widow, with whom he was then living on the farm,) §12,500 therefor, but he declined it. They ultimately sold the farm for about §9,600. — ■ Held, that they were not personally chargeable with negligence in not accepting the offer of §30,000, nor the subsequent offer of the son-in-law, which does not appear to have been bona fide.</p>

<p>On bill, answer and proofs.</p>

<p>Where securities, which came into executors’ hands as assets of their testatrix’s estate, but which in fact belonged to her husband’s estate, have been appropriated by them in the proper discharge of their duties, without notice, they will be protected.</p>

<p>Bill for injunction. On final hearing.</p>

<p>Appeal from two decrees of Essex orphans court.</p>

On exceptions by the guardian to the report of the master in ■chancery, to whom her account was referred by order of the court.

<p>A witness produced his certificate of ordination as a minister of a well-known religious sect, dated April, 1844, and testified that from 1844 to the present time he had officiated either as sole or associate pastor of a church of his denomination ; and that he had performed the ceremony at the marriage of the respondent with her husband, now deceased, in 1854, at the house of respondent’s father, in this state. — Held, that this was sufficient proof that under the circumstances his qualification, and the due solemnization of the marriage would be presumed.</p>

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

Halliard, 11 Stew. Eq. 373. The Mechanics and Laborers Savings-Bank was incorporated by a public statute passed March 3d, 1869. Held: used and improved to the best advantage, and to divide the income and profit thereof among the persons making the deposits in just proportion after deducting necessary expenses, and to repay .them the principal sums so deposited at such times, with such interest, and under such regulations aá the managers should prescribe.

<p>1. The lien of the writ of attachment upon the defendant’s lands as of the time the writ was issued, can be enforced only by a sale and conveyance made by the auditor upon the judgment in the attachment suit, in virtue of a special order of the court for that purpose.</p> <p>2. Where the defendant in attachment appears to the suit of any applying creditor, the court having obtained by such appearance jurisdiction of the defendant’s person, a judgment recovered by such creditor, besides being an ascertainment of the amount due him on his claim presented under the attachment, will also have the quality of a judgment in personam at common law, upon which an execution may be issued, and a levy be made on the defendant’s property; but a purchaser at a sheriff’s sale under such execution will take only the title the defendant had in the lands at the time the judgment was entered, subject to prior liens and encumbrances. If such creditor desires to avail himself of the title the defendant had when the writ of attachment issued, he must have his debt, as ascertained by his judgment, embraced in the judgment in the attachment suit, whereon a sale and conveyance may be made by the auditor, which, by the statute, shall convey the estate the defendant had at the time the writ of attachment was issued.</p> <p>8. The judgment being the foundation of title to lands by sheriff’s sale, the statute determines the actual entry of the judgment as the commencement of the lien, and title under such a sale cannot be antedated by a direction in the execution that the sheriff shall sell and transfer a title as of a day prior to the time the judgment took effect.</p> <p>4. Where a bill is-flled under the act to compel the determination of claims to real estate and to quiet th e title to the same (Rev. p. 1189), the decree in the suit must fix and settle the rights of the parties. If the defendant’s title be found to be superior to that of the complainant, he is entitled to a decree in his favor to that effect.</p>

It may come to this, however, on final hearing. Hence I do not advise that the bill be dismissed, as was urged. It is said that the bill does not bring the defendant corporation within the jurisdiction of this court. There is much force in this view, but under the very peculiar circumstances and developments of the case, I think I should advise against the insistment that the bill should be dismissed.

<p>1. An appeal will not lie from an order refusing to dismiss the complainant’s bill on the ground that the replication was not filed within the time prescribed by law.</p> <p>2. In a suit for partition in chancery, where a defendant sets up an equitable title to the whole estate in the premises, or impeaches the complainant’s title on equitable grounds, the court will not suspend the suit until the title be •settled, but will pass upon such title and settle all disputes concerning it in the partition suit, and grant relief accordingly.</p> <p>3. Where a husband pays the consideration of the purchase of lands, and has the conveyance made to his wife, the presumption is that a gift or settlement was intended, and a resulting trust will not arise in his favor from such payment.</p> <p>4. The proof which in such cases shall overcome the presumption of a gift to the wife must be of facts antecedent to or contemporaneous with the purchase, or else immediately afterwards, so as to be in fact part of the same transaction; and it must be equally satisfactory and explicit with the proof required to establish a resulting trust.</p>

penetrating her bed-room, and she has been nauseated and made sick from inhaling the foul and disagreeable odors generated at said factory; that said gases are not only nauseous and foul, and extremely disagreeable, but extremely unwholesome, but, if permitted to continue, will render her property comparatively worthless, and unfit for habitation.” The prayer of the bill is “ that the defendants may be restrained from collecting or storing decomposed fish or other animal…

<p>On appeal from an order of the chancellor, whose opinion is reported in Kirhpatriclc v. Corning, W Stew. Eq. H®.</p>

The agreement specially provided for the location of the northern boundary line, which was afterwards modified by the parties, and concludes as follows í “And it is further understood that the said Thomas Kennedy agrees to seli the said tract of land at a lower price than he otherwise would, on account of the increase of value to his remaining land by improvements to be made on the land hereby agreed to be conveyed; and the said Benjamin W. Carskaddon hereby agrees to expend…

<p>On appeal from a decree advised by Vice-Chancellor Van' Fleet, whose opinion is reported in Chancellor v. Gummere, 12 Stew. Eq. 582.</p>

An appeal from a decree in favor of the administrator of Mary J. Monfort, deceased, in a suit brought to foreclose a mortgage given by George H. Bowland and wife to the decedent. The vice-chancellor’s opinion is reported in Monfort v. Rowland, 11 Stew. Eq. 181.

The opinion of Vice-Chancellor Van Fleet, who advised the order, is reported in Domestic Tel. Co. v. Metropolitan Tel. Co., 12 Stew. Eq. 160. No opinion on behalf of the majority of the court affirming the order was delivered in this court.

<p>On appeal from decree of the chancellor overruling a demurrer to a bill of complaint for want of parties. The chancellor’s opinion is reported in Applegate v. Tyson, 1*2 Stew. JEq. S66.</p>

I will give so much of the statements respecting the title, as it appears in the bill, as to jnake clear the situation of the parties. One Doremus, owning a tract of land of about twenty-one acres, sold it to Charles P. Edwards and John S. Clark, by deed dated May 23d, 1856. On March 18th, 1857, Clark and wife conveyed all their interest therein to Edwards.

<p>On appeal from a decree of the chancellor, whose opinion is reported in North River Construction Co.’s Case, 11 Stew. Eq. 433.</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in Demarest v. Vandenberg, 1® Stew. Eq. ISO.</p>

<p>For a valuable consideration lands were conveyed to C. in trust for E., with a provision that O. should convey the lands to any one designated by E., either by a writing executed during her lifetime or by a will after her death. C. died without having exercised the power, and thereupon E. verbally requested C.’s heir at common law to convey the premises to herself, which was accordingly done. Afterwards, E., for a valuable consideration, conveyed the premises to the complainants’ mortgagor, through whom they now claim title. —HeId, that this court would aid the execution of the power, which was only formally defective, and would perpetually enjoin E.’s heir-at-law from prose•cuting an ejectment to recover the premises.</p>

<p>The complainant transferred to the defendants five shares of their own stock standing in his name, to secure a loan by them to him. The loan was paid in 1881. In 1878 two shares of that stock were levied on to pay complainant’s taxes, and defendants notified him of the levy. The tax collector sold the two shares at public, sale to complainant through an agent, and the surplus arising from the tax sale was paid directly to the complainant by the tax collector. Shortly afterwards the complainant sold those two shares to the agent, who paid him therefor. After the five shares of stock matured in 1882, the defendants. tendered the complainant the value of the three shares still standing in his name, after deducting therefrom the amount of his dues, fines &c.j which he refused to receive. They paid the amount into court in this suit. On a bill filed in 1883 against the defendants, to compel them to transfer the five shares to complainant — Held, that the bill had no merits.</p>

<p>Bill for an account. On amended plea.</p>

<p>An intestate had been a member of two successive partnerships carrying on the same business. The complainant, after having been appointed his administrator, but before he had actually qualified, sold the intestate’s interest in both firms to one H., who has not yet paid therefor. ■ H. bad been a member of the first firm and joined the intestate’s last partners in forming a new firm to continue the business with them on the basis of H.’s contributing thereto-'the intestate's interest. — Held, that complainant could not, after allowing his ■sale to H. to stand unquestioned for three years, come into chancery and demand an accounting by the new firm and by both the old firms, on the ground '■that his intestate’s share of both the old firms’ assets was still included in the mew firm’s, and therefore he was entitled to participate in the profits.</p>

<p>A right of way which was originally a way of necessity had existed undisturbed since 1840. — Held, that certain proceedings in 1845 by chosen freeholders to open the way as a by-road might, under the circumstances, be resorted to in order to locate and define the way. — Held, further, that the owner of the servient tenement and his tenants should be perpetually enjoined from obstructing the way and should also pay costs, but that neither the owner’s children, who have no title in the premises, but have nevertheless been made parties, nor his mortgagees, who have also been made parties, should be required to pay costs.</p>

<p>A mortgage dated and acknowledged on September 17th, 1880, and recorded on October 15th, 1880, is constructive notice to a subsequent purchaser of the premises, although the mortgagor’s deed for the premises was in fact (and this also appears on the county records) dated September 30th, 1880, and was recorded on November 24th, 1880.</p> <p>Note. — A mortgage on land given before a conveyance of the land to the ■mortgagor, is valid, Cooke v. Watson, 3 Stew. Eq. 345; see 3 Smith’s Lead. Cases (8th Am. ed.) 848 ; He Yampert v. Brown, 38 Ark. 166.</p> <p>In Warhurton v. Mattox, Morris (Iowa) 367, A mortgaged a tract of land to B while the title to the premises was in the United States. C afterwards pur■chased the land from the United States and conveyed it to A, who then mortgaged it to D. — Held, that B’s mortgage was entitled to priority over D’s; also, 1 Jones on Mart. \ 561; Wade on Notice ‘i‘í 307, 316; Crane v. Turner, 67 N. Y. 437; see Wing v. MeHowell, Walker (Mich.) 175.</p> <p>Such mortgage is valid against the mortgagor who subsequently acquired a title to the premises, Kirkaldie v. Larrabee, 31 Cal. 455; Bigg v. Cook, 9 III. ■336; Christy v. Dana, 34 Cal. 548, 43 Cal. 174; Boone v. Armstrong, 87 Ind. 168; Qotham v. Gotham, 55 N. H. 440.</p> <p>In Boyd v. Mwndorf 3 Stew. Eq. 545, a deed and a mortgage to the grantor to secure part of the purchase-money of the conveyance were executed simultaneously on February 28th, and acknowledged and recorded on March 3d at noon. Another mortgage on the same premises to another person than the grantor, also stating that it was given to secure part of the purchase-money, was executed on March 1st, and was acknowledged and recorded on March 3d, at a quarter before twelve o’clock, noon. — Held, that the first mortgage was entitled to priority, the registering of the second mortgage not being notice to the first mortgagee, since at that time the vendee’s deed had not been recorded ; also, Busenbury v. Hulbert, 59 N. Y. 54-1.</p> <p>In Bingham, v. Kirtland, 7 Stew. Eq. 889, T. H. made a deed to L. H. in 1867, which was recorded. L. H. made a deed back to T. H. in 1868, which-was never recorded. T. H. gave a mortgage to B. in 1871 which, was recorded.. L. H. made a second deed to T. H. in 1872. In 1874 T. H. gave a mortgage to P. — Held, that P.’s mortgage was superior in lien to B.’s, P. having no actual' notice of B.’s mortgage or of the deed to T. H. in 1868; see Salisbury SavBank v. Gutting, 50 Conn. US, 138, note.</p> <p>In Veazie v. Parker, 83 Me. 170, a vendee received a deed from a debtor-prior to an attachment against him, but did not record it until afterwards. He gave a mortgage to the debtor when his deed was executed, and this mortgage-was recorded prior to the attachment. — Held, that the record of the mortgage was not notice of the unrecorded deed ; also, Pierce v. Taylor, Id. 846; Brown-v. Tuthill, 1 Greene (Iowa) 189. — Rep.</p>

<p>1. A testator gave to A. a legacy, the interest of which was to be paid to A/s father during his lifetime. A., who was not one of testator’s descendants, died before the testator. — Held, that the legacy lapsed, and that the lapse destroyed any claim for interest on the legacy by A.’s father, who survived both A. and the testator.</p> <p>2. By a legacy to Sarah, daughter of Elizabeth Waters, testator was .held to> have meant Sarah, daughter of Elizabeth Wasson, his great-niece.</p> <p>« 3. After a specific devise and several legacies, a testator provided: “It is. my will that none of these legacies be paid until after the death of my brother G-. and his wife E., and after their death the balance of my estate, if any, to be equally divided between A, B, C, D and F.” The testator’s debts exceed his personal estate, while the real estate, outside of the specific devise, largely exceeds in value the balance due on the debts after applying the personal estate thereto.</p> <p>Held, that the legacies were a charge on the land ; that all the lands were devised, and that the executors must sell them to pay the debts and legacies, and invest the surplus and hold it during G.’s lifetime (E. having died meanwhile), and after G\’s death divide it among A, B, O, D and F.</p> <p>Note. — In Oreen v. Howell, 1 Vr. 326, 2 Vr. 570, a testator gave to his sister M. the interest of $1,000 for life, and thereafter the $1,000 to M.’s two daughters, D. and S., equally to be divided. S. died in the testator’s lifetime, while D. survived the testator but died before M. — Held, that D.’s administrator could recover a moiety of the $1,000 because her interest vested at testator’s death, but (per Oreen, C., 2 Vr. 572) S.’s interest lapsed by her death before testator; see Drummond v. Drummond, 11 O. E. Or. 234. The remainder-man’s interest would be vested if he survived the testator but died before the life-tenant, 2 Wm$. on Exrs. (6th Am. ed.) 131ft, [1239] ; Thomas v. Anderson^ 6 O. E. Or. 22; Oropley v. Cooper, 19 Wall. 167; McCall’s Case, 11 Phila. 41; McClure’s Appeal, 72 Pa. St. 414; Pleasonton’s Appeal, 99 Pa. St. 362 ; 2 Jarm. on Wills {R. & T. ed.) 466, *849; Potts v. Atherton, 28 D. J. {Ch.) 436; Barker v. Barker, L. R. {16 Ch. Div.) 44-; Newberry v. Hinman, 49 Conn. 130 ; Stowett v. Graves, 2 T. & C. {N. T.) 211; Davidson v. Koehler, 76 Ind. 398; Burton v. Conigland, 82 N. C. 99.</p> <p>If property be given to A until B, an infant, arrives at the age of twenty-one, and then to B, and B dies under the age of twenty-one, in the lifetime of the testator, A has an estate therein until B would have been twenty-one if he had lived, Coley v. Ballance, Winst. {N. C.) Eq. *43, 634. — Rep.</p>

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

<p>Bill for construction of will and directions as to distribution •of assets.</p>

<p>A trustee had been decreed to be personally liable for certain losses sustained by the trust estate through his negligence. On a reference to ascertain the extent of his liability, the master reported an amount which was based on the estimate of a particular witness, and his report was sustained by this court. On appeal, however, the estimates of another witness before the master, which reduced the trustee’s liability, were preferred, and, the decree having been reversed therefor, the matter was again referred to the master for a new report. On exceptions to such new report — Held, that this court was not, under the circumstances of the case and in this case, bound, in executing the decree of the court of appeals, to regard the directions of that decree as absolute, and to be followed implicitly and literally, without any manner of discrimination, but that they were to be considered rather as directions to guide this court in establishing the extent of the trustee’s liability. — Held, further, that the trustee was entitled to commissions.</p> <p>Note. — As to the conelusiveness of the decision of an appellate court on the inferior one, see Dodge v. Gaylord, 58 Ind. 365, which refers to many American cases; also, Dodd v. Asloi', 3 Barb. Oh. 395; Haskell v. Raoul, 1 McCord’s •Ch. 33; I/yon v. Merritt, 6 Paige 4^3 ; Henry v. Davis, 13 W. Va. 330. And the decree must be enforced even where it was for the first time discovered, after the remand, that the inferior court had no jurisdiction, Sheller v. May, 6 Crunch 366 ; Watkins’s Case, 3 Pet. 193 ; Washington Bridge Co. v. Stewart, 8 How. (U. S.) 413; Williams v. Bruffy, 103 U. S. 355; Mims v. Stwrdevant, 36 Ala. 686; Cunningham v. Ashley, 13 Ark. 653 ; Clary v. Hoagland, 6 Cal. 685; Semple v. Anderson, 9 III. 546; or the court made a palpable mistake in calculating the amount of the decree, Price v. Campbell, 5 Call 115, 8 Munf.337; see Tatum, v. McLellan, 56 Miss. 353; or a survey directed to be made was impossible, Brown v. Crow, Hardin 443.</p> <p>Nor can the chancellor, before entering the mandate as directed by the court of appeals, suspend by injunction his own powers to act in obedience to it, Watson v. Avery, 3 Bush 635 ; nor add to a decree for specific performance for the conveyance of lands that the defendant also account for the previous profits thereof, White v. Atkinson, 3 Call 376; and make restitution, Hughes’s Appeal, 90 Pa. St. 60; see Mackall v. Richards, 5 Sup. Ct. Rep. 170; nor quash an «execution issued against an administrator, on the ground that he was not in fact •an administrator when the decree and execution were entered against him by the court of appeals as such, Henderson v. Winchester, SI Miss 290; nor refuse to appoint two executors because one of them has died since decree rendered, Pacheco’s Case, 29 Cal. 224; see Rogers v. Paterson, 4 Paige 409; King v. Clarke, McMvll. Eq. 48; Kee v. Kee, 2 Qratt. 116; Nicholson v. Jennings, SI La. Ann. 828; Bank of Virginia v. Craig, 6 Leigh 399 ; nor admit new testimony, Miner v. Medbury, 7 Wis. 100; Qunter v. Laffan, 7 Cal. 588; Lyon v. .Merritt, 6 Paige 473.; North Car. R. R. Co. v. Swepson, 73 N. C. 316 ; nor retry the cause, Soule v. Dawes, 14 Cal. 247; see Adams v. Field, 25 Mich. 16; nor award a new inquiry as to damages, Holley v. Holley, 5 Lilt. 290 ; VJinchester v. •Qrosvenor, 48 III. 515; nor amend the decree by adding thereto a party made necessary by the marriage of one of the original parties pendente lite, Quackeitbush v. Leonard, 10 Paige 131; see Moss v. Rowland, 3 Bush 505; Wilson v. Hamilton, 9 Johns. 442; Exchange Bank v. Knox, 19 Qratt. 739'; nor dismiss the bill without prejudice where the decree was to dismiss it for want of equity, Wadhams y. Qay, 83 III. 250 ; see Mohler y. Wiltberger, 74 III. 163 ; nor modify its own decree, which had been affirmed, by altering the amount decreed to ■ one of the parlies, Murrill y. Murrill, 90 N. C. 120.</p> <p>If a cause be sent back for a further account, so much of the account as was reported prior to the decree need not be re-proved, HensKaw v. Freer, Bail. Gh. 811.</p> <p>After the lower court has been ordered to dismiss a bill, its decree of dismissal cannot be assigned for error, although the appellant had, theretofore, presented a petition to remove the cause to the federal courts, Boggs v. Willard, 70 III. 315; Akerly v. Vilas, 34 Wis. 165; S. G., 3 Biss. 110, 3 Biss. 333; Kingsburyv. Kingsbury, 3 Biss. 60; see Mong v. Bell, 7 Gill 344; Bryant v. Rich, 106 Mass. 180; Hall v. Ricketts, 9 Bush 366; Bart v. Walker, 4 Body 188; Waggener v. Cheek, 3 Bill. 560 ; Sneed v. Brownlow, 4 Coldvi. 353 ; Chandler v. Coe, 56 N. H. 184; Brayley v. Hedges, 53 Iowa 583; Yutee v. Vose, 99 U. S. 539.</p> <p>In Snowhill v. Snowhill, 1 Gr, Ch. 30, a demurrer to a bill allowed by the chancellor was reversed by the court of appeals, and the cause remanded.— Held, that the defendants were not thereby precluded from relying on any new matter set out in their answers, which was not in the bill; see Pierson v. Bavid, 1 Iowa 33; Forbes v. Tvckerman, 115 Mass. 115; Trego v. Skinner, 43 Md. 436. But the questions decided on the .demurrer cannot be raised again, Smith v.. Elder, 14 Sm. & Marsh. 100; McNairy v. Nashville, 1 Tenn. Ch. 133.</p> <p>In a proper case the lower court may change the issues or allow others to be-added, Marriott v. Handy, 8 Gill 31; Trinity Co. v. McCammon, 35 Cal. 11.7;■ Taylor v. Wright, 54 Miss. 722; see Hurek v. Erskine, 50 Mo. 116. If no direction has been given as to an incident of the decree, as costs, the chancellor may determine that, Gale v. Butler, 35 Vt. 449; Brown v. Lee, 50 N. Y. 427; ■see McGregor v. Buell, 1 Keyes 153; Sheridan v. Andrews, 80 N. Y. 648; or allow such further proceedings in the case as, in his judgment, justice requires, Barker v. Vermont R. B., 35 Vt. 451; or award a decree and execution that the defendant convey a moiety of the lands in dispute to the complainant, where the court of appeals had merely decided that the latter was entitled thereto, Logan v. McNitt, Lilt. Sel. Cas. 119 ; or disregard the appellate court’s finding as to facts, which is plainly erroneous, Reynolds v. Dams, 5 Sandf. 267; see Wells v. Amer. Ex. Co., 55 Wis. 23; or retry the question as to the valid execution of a will, where the former decision admitting it to probate has been reversed for insufficiency of evidence then before the lower court, Mead v. Mead, 18 Barb. 578; see Stewart v. Swanzy, 12 Sm. & Marsh. 684, 23 Miss. 502; Hylton v. Hylton, 1 Gratt. 161; or allow amendments to the pleadings in • order that justice may be done, Bugley v. Robinson, 19 Ala. 404; Chickening <v. Failes, 29 111. 294; Wailes v. Cooper, 25 Miss. 421; Hanserd v. Gray, 46 Miss. 75; Barker v. Belknap, 27 Vt. 700; see, however, Hannum v. Cameron, -12 Sm. & Marsh. 509; McRae v. David, 7 Rich. Eg. 375 ; Holmes v. McGintyf 46 Miss. 79; Murray v. Cosier, 30 Johns. 60S; Keller v. Lewis, 56 Cal. 466;- or make an equitable partition after a reversal of a decree of the court of chancery, which sustained a previous voluntary partition between the same parties, Polhemus v. Emson, 1 Stew. Eq. 576, 3 Stem. Eq. 583; or admit new parties, Anderson v. Anderson, 1 Hen. & Munf. 13; Chouteau v. Allen, 74 Mo. 56 ; or add interest to the amount fixed by the decree, Slurges v. Knapp, 35 Vt.. 489; Ogden v. Thornton, N. J. Oh. Jan. 1885, Van Fleet, V. C.; or dispose of a motion for a perpetual injunction, although a decree dissolving a temporary injunction has been affirmed, Rayle v. Indianapolis R. R. Co., 40 Ind. 847; seeBeaudry v. Felch, 47 Cal. 183.</p> <p>Where the appellate court adjudged, on demurrer, that a plea was bad, and the opinion suggested certain additional averments that would be requisite to-supply its defects, such suggestions were not, on a subsequent appeal, deemed exclusive, so as to prevent defendant from averring other matters in his plea,. Jesse v. Cater, 38 Ala. 475.</p> <p>A decree establishing a trust and remanding for partition and account will not prevent the parties from showing that the ancestor’s title was divested by a conveyance during his lifetime, Kingsbury v. Buckner, 70 III. 514-</p> <p>A decree of the court of appeals provided that S. was entitled to redeem the; property on paying the amount for which it sold at sheriff’s sale, with interest ; and that the cause should be remitted for an account under the direction of the chancellor, and that S. be permitted to redeem on equitable terms. — Held, that the court of appeals did not intend to limit the terms, but to leave it to the court of chancery to add such other terms as it should deem equitable, Johns v. Norris, 1 Mtew. Eq. 14¶-</p> <p>Under a decision that an appellant was entitled to an interest in certain land on paying the amount found due upon an account to be taken between him and the respondent, upon certain principles, in the court below, and an account was taken there and a decree rendered accordingly, an appeal from that decree brings up only the question whether the account was taken in accordance with the principles established in the decision of the court, Reed v. Jones, 15 Wis. 40; Noon v. Munro, IS S. C. 374.</p> <p>The appellate court may award a peremptory mandate to the inferior court to carry out its decree, McDonald v. McDonald, 16 Yt. 680 ; Johnson v. Glass-cock, & Ala. 519 ; or, if necessary, retry the case itself, Fine v. Gockshut, 6 Call 16.</p> <p>Where a sale of land had been made under a decree which was afterwards reversed — Held, that the appellant was not precluded from recovering damages therefor because the lower court refused his motion to set aside the sale and restore his possession, Reynolds v. Hosmer, 45 Cal. 616. — Rep.</p>

<p>Petition for order that the books of the company be brought into this state &c.</p>

<p>1. An injunction may be allowed to restrain defendants, who were lately employed by complainant, from using in their own factory, or divulging to-other persons, certain secrets used by complainant in manufacturing, which they, in consideration of their employment by complainant, had agreed not to divulge;, and such injunction should be retained until the final hearing, although all the facts alleged in the bill are denied in the answer.</p> <p>2. An injunction to prohibit defendants from making known where or from-whom complainant buys his materials, and to whom he sells his goods, or the prices at which he buys or sells, denied,. An agreement by an employee to-that effect may well he regarded, in the absence of anything to the contrary in its terms, as limited in its obligation to the term of his service.</p>

<p>Bill for relief. On order to show canse why injunction should not issue.</p>

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

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

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

<p>On hearing on demurrer.</p>

On application for an injunction, heard on bill and affidavits on the part of the complainants, and affidavits on the part of the defendants.

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

<p>Judgment creditors sold all the real and personal estate of their debtors,, partners in the grocery trade. One of the plaintiffs bought all and carried on the trade for six months, when he sold all to the wives of the partners, who-secured the price first by chattel mortgage and then by real estate mortgage.. The wives employed their husbands to carry on the trade for them, giving-them their board and clothing. — Held, that, under our statutes respecting married women, both the stock of goods originally purchased and all the increase in that stock from the earnings or profits, belong to the wives the same as-though they were single women.</p>

<p>On bill to foreclose.</p>

<p>1. A testator gave portions of his real estate to his widow for life and the balance to his children in fee, with a power to his executors to sell at their discretion, and a direction to divide the proceeds of sale amongst his children. —Held, that the executors, having exercised their discretion and made sale,, there was a conversion, and that the proceeds must be disposed of as personal property. — Held, also, that the interest of the children in the portion given to them in fee vested at the death of the testator and not at the period of distribution ; and that half of the portion given to the widow vested in the children in case of the marriage of the widow, at the time of such marriage, and the balance at the death of the widow.</p> <p>2. Notwithstanding the testator first said he gave the lands to his children in fee, he also directed his executors to take charge of the share of one of them and to pay her the proceeds and interest, without saying anything more as to the fee. — Held, that in this case the fee was disposed of, and that the testator did not die intestate.</p>

<p>The complainants bored in their own land for water over four hundred feet, and procured a flow of fifty gallons per minute at an elevation of twenty-eight feet; the defendants then sank a shaft on the land of strangers, but, by consent, to a depth of only eight feet less than complainants’and about five hundred feet therefrom, and obtained thirty gallons per minute. When the defendants’ well began to flow the complainants’ diminished to thirty gallons per minute. The defendants propose to sink other shafts still nearer to complainants’ — Held, that an injunction will not be granted either to restrain the defendants from sinking other wells, or to command them to close the one already sunk.</p>

<p>Bill to foreclose. Petition, to set aside master’s sale.</p>

<p>On bill for partition.</p>

<p>A testator, domiciled in New Jersey, provided in his will that whatever-advances he might make in his lifetime to his son for the payment of the son’s debts, not exceeding $200,000, would be found charged against him in an account kept by the testator, and should be deducted from the son’s share. He also directed that those charges should, in no event, affect the portions of his other legatees. Those advances and charges amount to $120,000. The executors have filed a bill in this court, alleging that the son had applied to them for the balance ($80,000) of the $200,000, and praying directions as to-their duties. The son, who resides in New York, where a large portion of the-estate is, afterwards filed a petition with the surrogate of New York city against the executors, who also reside there, setting forth certain debts which he owes, and asking for an order that the executors pay him the $80,000 to-satisfy those debts. The other legatees resisted that application, and it is still undetermined. They have also filed answers, and answers by way of cross-bill to the suit pending here, protesting against the proceedings before the-New York surrogate. — Held, that as the domicile of the testator was here, and therefore the executors must account here, and as the amount of the residuum, from which the $80,000 must be paid, if at all, is not yet ascertained, and as the shares of the other legatees may be affected by the executors paying the son now, this court will enjoin the executors from paying any money out of the residuum until after its amount has been ascertained, and will also enjoin, the son from proceeding in the foreign tribunal to enforce such payment.</p>

<p>A bill for an accounting and discovery alleges that in 1875 the defendant -was appointed assignee for the benefit of the creditors of an insolvent, and vthat, although he had filed an account which passed, he had been grossly ¿negligent in not filing an inventory, and in paying some creditors in full, to the determent of complainant and other creditors, and in not declaring a dividend, and in not making a settlement, and in squandering the estate by needless litigation and the payment of exhorbitant counsel fees and for services which he should have rendered himself, and in not collecting the-claims due the estate, and in refusing to exhibit his books of account on complainant’s application. — Hdd, that a demurrer thereto should be sustained, ott the gound that the orphans court has jurisdiction to compel the defendant to discharge his duty properly, and that complainant should have excepted to defendant’s account when it was presented to, and allowed by that court.</p>

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

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

<p>The testator said, in his will, that if any of his children filed a caveat against the probate of his will, he should pay all the costs. In case a caveat is filed, the statute authorizes the orphans court to order the costs, expenses and counsel fees to be paid out of the estate. The orphans court ordered all costs and expenses paid out of the estate. — Held, that the provisions of the will must give way to the statute. — Held, also, that the doctrine of election cannot be applied in such case.</p> <p>Note. — A condition annexed to a legacy or devise that it shall be void by the beneficiary’s contesting the will, has been held valid in some cases. 2 Jarm. ■on Wills (B. & T. ed.) *59, (582); Also, Jackson v. Westerjield, 61 How. Pr. 899; Donegan v. Wade, 70 Ala. 501; Stevenson v. Abinglon, 11 W. B. 935 ; Phillips v. Phillips, 12 W. H. 260; see Hope v. International Financial Soc., L. B. (4 Ch. JDiv.) 827; Massey v. Rogers, L. B. (11 Irish Oh) 409 ; Crevelingv. Fritts, 7 Slew. Eq. 184,14%. — Hep.</p>

<p>1. A sister purchased lands of her brother. John when the complainant was a previous creditor, which she knew. She paid $50 in cash, and gave her brother her note for the balance of the consideration, $650, which note he held for four years, although yery needy. — Held, that if she had notice of the fraud before she paid the note, she was not a bona fide purchaser, even if she had no notice thereof when she took her deed.</p> <p>2. After her purchase complainant sold the land under his judgment, and it. was also sold under partition proceedings, and the sister purchased it. — Held,, that the complainant would be allowed to stand in the place of his creditors, the brother John and another brother, Steuben, both of whose interests in the premises he had purchased at the sale under his own judgment, and that the purchase-money received by the commissioners should be paid to him.</p>

<p>A wife received $1,000 from her father’s estate in 1859, which she then (loaned to her husband, taking therefor his note, under seal, payable to her sister. In 1867 he paid her the $1,000, and she thereupon surrendered the note. After the note had been given up, she inquired about the payment of the interest, and he promised to pay it. — Held, that such interest was not a good consideration, as against an intervening judgment creditor, to sustain a payment of $480 to her in 1882, when in order to obtain the money he and -his wife mortgaged the only lands he owned.</p>

<p>A bill filed by the receiver of an insolvent corporation, alleging various frauds by the treasurer and some of the directors, may be maintained against the treasurer alone, without joining as co-defendants all the directors and other persons who are alleged to have participated in the frauds.</p>

<p>On bill for specific performance.</p>

<p>Where an injunction has been issued within ten days after the decree authorizing it, an appeal from such decree within the ten days suspends the operation of the writ, ipso facto, and it is unnecessary to apply to this court to dissolve the injunction or to stay the issuance of process on the decree.</p>

<p>To a foreclosure-bill filed by a second mortgagee, the first mortagee was' made a party, and entered an appearance. Thereupon, the second mortgagee, amended her bill, attacking the priority of the first mortgage on the ground of fraud. The first mortgagee answered, a replication was filed and consider•able testimony taken. The first mortgagee's priority was sustained. — Held, that «the first mortgagee, who had prevailed, could not be charged with the costs of the litigation incident to his alleged fraud; but that such costs down to the .final decree, must be borne by the proceeds of sale. If those proceeds were not sufficient to pay all, then the execution fees should be first paid; then the first mortgagee’s claim and all his taxed costs, and finally the second mortgagee’s ■claim and her costs.</p>

<p>A complainant may dismiss his bill on payment of all costs to the defendant, but a cross-bill and answer to the original bill may, nevertheless, be regained, with leave to either party to come in thereafter for further relief.</p>

<p>1. The statute of limitations does not run against a claim by a wife against her husband.</p> <p>2. An entry of an indebtedness to his wife, made by a husband in a memorandum-book, which was never delivered to her, whatever its terms, can create no lien on his lands, and is merely an acknowledgment of his liability.</p> <p>3. The genuineness of the husband’s handwriting may be shown by an inspection, and by an expert’s comparison thereof with other writing proved to be his, and also by witnesses to whom he exhibited the memorandum and explained its effect.</p> <p>Note. — As to the statute of limitations applying to claims between husband and wife, see Gray v. Gray, IS Stew. Eq. BIS, note. — Rep.</p>

<p>On bill for injunction.</p>

<p>On bill to foreclose.</p>

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

<p>1. A sou-in-law rendered services to a decedent in his lifetime, without any promise or expectation then of compensation, and the son-in-law was appointed one of the executors, and served as such. He made a claim of $1,083 for those services in his accounts. The court allowed only $541.50. He appealed. — Held, that the court would not reverse. There was no appeal on the part of any one interested adversely.</p> <p>2. The court may refuse to charge the counsel fees in a successful suit, brought by the executor against the testator’s widow, to recover assets of the estate, upon the income of the estate, in which the widow has a direct interest as annuitant.</p> <p>3. On successful exceptions to an executor’s account, a counsel fee may be allowed the exceptant (an annuitant) out of the corpus of the estate.</p>

<p>Where the proceedings for the sale of land to pay a decedent’s debts are regular, and the orphans court orders the land to be sold free from the widow’s right of dower, the sale thereunder divests her of all claim upon the land-and transfers her interest to the money derived from such sale..</p>

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

<p>Appeals from the decree of the orphans court of the county of Monmouth admitting the will to probate, and an appeal from an order directing the administrator pendente lite to pay the counsel fees &c.</p>

<p>The cost of printing a case was ordered to be done at the expense of the •estate in litigation, because of the alleged poverty of the appellant. When the appeal was decided, no costs were awarded to either party. — Held, that each party should pay one-half the cost of the printing.</p>

<p>An order to take testimony to be used on the hearing of an appeal, specified' on what points it should be taken. The respondents, nevertheless, caused-considerable irrelevant testimony to be taken and printed, against the objection of the appellant. — Held, that the respondent should pay the cost thereof..</p>

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

Appeals -from decrees of Middlesex orphans court overruling exceptions to an affidavit filed as an account in the first of the above-stated cases, and to an account filed in the other case.

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

<p>1. Executors were directed to invest funds of the estate in bonds and mortgages, on property worth double the amount invested; they were also empowered to sell all of testator’s lands. They did so, and in making those sales received mortgages for part of the purchase-money, which was subsequently lost by the depreciation of the premises in value. — Held, that such purchase-money mortgages were not the investments of the estate contemplated by the testator, and that consequently the executors, who appear to have acted prudently, were not liable for their loss.</p> <p>2. Testator’s widow was entitled to a life estate in all the property, and she was also one of the executors, and as such collected part of the interest on the securities of the estate from time to time. — Held, that if her co-executors were entitled to a commission thereon, it should be paid out of the income itself.</p> <p>3. Two thousand dollars of the funds were invested by one of the executors in municipal bonds, contrary to law and to the directions of the will. The city afterwards became bankrupt, and proposed a compromise with its bondholders, which was submitted, by the executor and the widow, the executrix, to the beneficiaries of the estate, and they authorized them to accept it, and to receive the substituted bonds, which they did accordingly. — Held, that the beneficiaries’ action in approving the compromise did not estop them from holding the executor liable for the original illegal investment.</p>

<p>The orphans court act provides that an appeal from an order or decree .respecting the probate of a will * * * shall be demanded within thirty days after such order or decree, and from any other order or decree, * * * within three months. A decree admitting a will to probate, and awarding the costs of both sides and counsel fees to the caveator’s proctors out of the estate, was dated April 3d, 1885. On May 14th, 1885, an order was entered directing that the decree be amended so as to award a counsel fee out of the estate to one proctor of the proponent; and on June 10th, 1885, another similar order was made, awarding a counsel fee to another proctor of the proponent. On July 17th, 1885, the proponent appealed from that part of the decree of April 3d, 1885, which relates to the costs, and also from the two subsequent amendatory orders. — Held, that the provisions of the decree as to costs and counsel fees were parts of the decree for the probate of the will, from which an appeal must be taken within thirty days after entry, and that as to the amendatory decrees, appeal must be taken within thirty days from the time of entering the amendatory decree appealed from.</p> <p>Note. — Where a judgment entered on August 3d, 1877, was amended as to costs on August 30th, 1877 — Held, that the one year within which an appeal therefrom must be taken expired on August 3d, 1878, Wilson v. Palmer, 75 N. Y. 250.</p> <p>If an order be amended it does not extend the time for appealing from the original order, although an appeal from the amending order may have been taken in time, Leadbetter v. Laird, 45 IRs. 522; Savings Soe. v. Horton, 63 Cal. 310; Alabama Coal Co. v. Slate, 54 Ala. 36; see Marnn v. Haley, 45 Cal. 63.</p> <p>An appeal from a judgment rendered on a verdict, and also from an order dismissing an application for a new trial, only authorizes a review of the latter if the time for appealing from the former has expired, Cohol v. Allen, 37 Iowa 449 ; Parker v. McAvoy, 36 Wis. 322; Carpenter v. Brown, 50 Iowa 451.</p> <p>An act of congress which directs the court of claims to re-open and re-adjudieate a claim, and, in case it finds a further amount due, that the same shall be part of the original judgment, confers no right of appeal from the final action of the court thereon, if such right on the original judgment has expired, United States v. Grant, 110 U. S. 225; appeals from orders made after judgment must be taken within the time limited for taking appeals from judgments, Jarvis v. Hamilton, 37 Wis. 87; see Porter v. Timanns, 12 Md. 283.</p> <p>Where the elerk neglected to enter a judgment on the day oft which it was rendered, and it was afterwards, by consent of parties and order of the court, ■entered nunc pro tunc, the time within which an appeal could be taken was •held to begin to run from the day of rendition, and not from the day of entry, Anderson v. Mitchell, 58 lnd. 592.</p> <p>A final decree cannot be rendered interlocutory by retaining the cause on the •docket, and by subsequently rendering another decree in the same cause, and ■therefore a bill of review presented within the statutory time after the date of the second decree, but after such time has expired as to the first decree, will be dismissed, Nelson v. Jennings, 2 Pat. & H. 369.</p> <p>A judgment by default was rendered by a justice of the peace against a defendant, who, two days afterwards, applied to the justice to open the judgment. The justice thereupon fixed a day and hour, and notified the plaintiT to appear and show cause &c. At the time appointed the plaintiff appeared, but the defendant did not, whereupon the justice confirmed the judgment. — Held, that the time for appealing therefrom should be computed from the latter day, Blech v. King, 3 Pa. St. 211; Bead v. Dickinson, 2 Ashm. 224. — Rep.</p>

<p>On appeal from a decree of the chancellor, whose opinion is-reported in Palmateer v. Tilton, 12 Stew. Eq. Ifi.</p>

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Booraem, v. North Hudson Co. B. R. Co., 18 Stew. Eq. 1¡B5.</p>

<p>1. The words “ extreme cruelty,” in our act concerning divorces, are not. stronger in meaning than the term scevitia, derived from the civil law.</p> <p>2. A charge of incest made by a husband against his wife, persisted in,, without cause, attended with slight acts of violence, jealous watchings, suspicious conduct and reasonable apprehension of bodily harm, is good ground' for judicial separation by a divorce from bed and board.</p> <p>3. It is not a good defence to such complaint that the husband appears to-be under an insane delusion, where there is not general insanity or dementia..</p>

<p>On appeal from decree of the chancellor, whose opinion is reported in Canda v. Powers, 11 Stew. Eq. J^W.</p>

<p>1. By a. contract under seal, complainant covenanted to mine and deliver to defendants, on board cars at Franklin, 1,000 tons of franklinite ore per month for a year, guaranteeing that the ore should contain at least 26-per cent, of oxide of zinc, and agreed that on his failure to do so for thirty days defendants might take possession of the mine after giving him thirty days’ notice of tlieir intention. Defendants agreed to analyze the ore and pay for each month’s delivery on the loth' day of the succeeding month, at a desigmated scale of prices for all ore delivered containing 26 per cent, or more of- Zn. O., and at prices to be thereafter agreed on for all inferior ore accepted by them. — Held, that defendants were not bound to test the ore before •receiving it on the cars at Franklin, but might test it after it was unloaded at their works in Bethlehem, and that, by accepting ore, they were not estopped from showing that it contained less than 26 per cent, of Zn. O.</p> <p>2. Under the contract above stated, defendants made full payment, at the :Stipulated prices, for all ores delivered which were up to the standard quality according to their analyses, and at prices which they thought fair for ail accepted ore of inferior grade according to their analyses (no other prices having been agreed on). Complainant demanded payment for all ore as being above ■the standard, and because of non-payment stopped delivery, and thereupon defendants gave the thirty days’ notice that they would take possession of the mine. On bill filed, the court found that some ore delivered was richer than •defendants’ analyses showed, and for ore below the standard, fixed prices higher •than those paid by defendants but lower than those demanded by complainant, and decided that when complainant stopped delivery defendants were in arrears with payments. — Held, that defendants’ conduct did not evince an intention to abandon the contract or a design not to be bound by its terms, and that complainant’s stoppage of deliveries was without justification, and that on the expiration of the notice defendants became entitled to possession of the ■mine. Blackburn v. Beilly, 18 Vr. 290, re-affirmed.</p> <p>3. Under the contract above stated — Held, that defendants were not entitled, •on their cross-bill filed against complainant’s bill, for an account of ore delivered, to have their damages arising from the breach of complainant’-s covenant to deliver, assessed in equity and set off against the sum due complainant for ore •delivered.</p> <p>4. The fact that cross-demands, otherwise distinct, spring out of. the same •contract, does not create an equitable right to set off one against the other.</p>

The certificate of sale is no bar; it simply creates a lien. The declaration of sale is no bar in favor of the defendant.

<p>On appeal from a decree of the chancellor, whose opinion is reported in Chamberlain v. Hoffman, 11 Stew. Eq. 40*</p>

<p>On appeal from a decree of the chancellor, whose opinion is. reported in Lamb v. Ryan, 13 Stew. JEq. 67.</p>

<p>On appeal from an order advised by Vice-Chancellor Van Eleet, whose opinion is reported in Una v. Dodd, 12 Stew. Eq. 173.</p> <p>By an act of the legislature approved February 25th, 1847, the Newark Savings Institution was incorporated. The act contained the following:</p> <p>■‘Sec. 4. And be it enacted, that the said corporation may receive, as deposits, all sums of money which may be offered for the purpose of being invested, in such sums, and at such times, and on such terms as the by-laws shall prescribe, which shall be invested accordingly, and shall be repaid to such depositor at such times, and with such interest, and under such regulations as the board of managers shall, from time to time, prescribe.</p> <p>“Sec. 5. And be it enacted, that it shall be the duty of the managers to regulate the rate of interest to be allowed to the depositors, so that they shall receive a ratable proportion, as near as may be, of the profits, after deducting therefrom all necessary expenses, and a reasonable surplus or contingent fund.</p> <p>“ Sec. 6. And be it enacted, that no emolument whatever shall, directly or indirectly, be received by the president or managers for their services.</p> <p>“ Sec. 7. And be it enacted, that the said corporation shall invest no money in any other public stocks than such as are created under the laws of the United States, or of this state, nor on bonds and mortgages, except on unencumbered real estate, worth at least double the amount of the sum invested, nor in the stock or loans of any incorporated company whatever.”</p> <p>A supplement, approved March 5th, 1850, enacted, among other things, as follows:</p> <p>“Sec. 2. And be it enacted, that the said corporation, in addition to the power of investing money in public stock, given in the seventh section of the act to which this is a supplement, may invest money in the public stocks of the states of New York, Ohio, Kentucky and Massachusetts, authorized by the respective laws of said slates, and also in the stocks of the city of Newark, in this state, and of the cities of New York and Brooklyn, in the state of New York, authorized by the laws of said states respectively.”</p> <p>A supplement, approved February 9tk, 1859, repealed so much of the sixth section of the act as prohibited compensation to managers for actual services, and gave power to invest in the stocks and bonds of states, and in the bonds of counties and cities, and to make temporary loans on personal securities, with collateral securities.</p> <p>By-laws were adopted, which regulated the mode whereby depositors could demand and withdraw their deposits, and, in particular, provided that no deposit should be withdrawn at any time without three months’ notice to the institution, and each depositor was required to subscribe the by-laws, and thereby signify an assent thereto.</p> <p>On December 12th, 1877, the institution presented a petition to the chancellor, in which was alleged its incorporation and the powers conferred and duties imposed thereby; that it had organized in 1847, had received and invested deposits to a very large amount, and had, at one time, accumulated a large surplus; that its managers had invested between $2,000,000 and $3,000,000 in railroad bonds and loans secured by such bonds; that from 1873 the assets had so depreciated that the question whether any of the surplus would remain would depend on the ultimate value of its railroad securities and its ability to realize on mortgages affected by a fall in the value of real estate; that deposits had been largely withdrawn, and increasing withdrawals were expected unless the ninety-day notice clause of the by-laws should be enforced; that its enforcement would work greater distrust, and impair, if not wholly destroy, the usefulness of the institution ; that although it had available securities, from the proceeds of which such withdrawn deposits could be paid for a long time, yet its managers were advised and believed that they could not allow such a course to be pursued without violating their duties as trustees for all the depositors; that they believed that, by a careful management of their trust under the direction of the court, the existence and usefulness of the institution could be maintained, and its depositors .secured from ultimate loss; that they regarded the institution as an incorporated agency for re■ceiving and loaning money entrusted to it, and themselves as trustees of the depositors j that the assets on hand at any time were the property of depositors, in proportion to their deposits, each depositor’s right being diminished by losses or increased by .gains in investments; that they were unwilling to proceed in the execution of their trust without the sanction and direction of the court of chancery in its jurisdiction over the administration of public and private trusts, being satisfied that, without such direction, they could not maintain the institution in public confidence, or secure absolute equality among the owners of its assets.</p> <p>The prayers of the petition were as follows :</p> <p>“ 1. That an order may be made requiring that only such dividend shall be ■paid to depositors on the first day of January next as shall be authorized by the order of the court.</p> <p>“ 2. That an order may be made restraining the institution from paying to any depositor, and any depositor from demanding, more than eighteen per ■cent, of his deposit until the further order of the court, which amount may be required and paid at any time thereafter on demand.</p> <p>“ 3. That this institution be required by the order of the court to abstain from disposing of any of its assets beyond the said eighteen per cent., except ■with the approval of the court, or some master to be designated for that .purpose.</p> <p>“ 4. That an order may be made permitting the said institution to provide •that all deposits hereafter made, and until further order of the court, shall be treated as special deposits, and invested only in the bonds of this state or city ■ of Newark, or of the United States, and that separate accounts thereof be kept, and the actual interest received from such investments, deducting necessary ■ expenses, be paid as dividends on such deposits, and that such deposits shall not be subject to any restrictions as to payment except such as are imposed by ■the by-laws heretofore adopted.</p> <p>“ 5. That the future administration of the said trust shall be under the control of the court so long as shall be deemed necessary to promote the interests and .insure the permanency and prosperity of the institution.</p> <p>“ 6. That concurrently therewith this honorable court will cause such ex.amination to be made into the affairs of said institution, and the situation and nature of its assets, as your Honor may deem necessary as a basis for the future .action of the court.”</p> <p>There was no prayer for process.</p> <p>The petition was sworn to by appellant, and appended thereto was the following:</p> <p>“We, the undersigned, managers of the Newark Savings Institution, hereby signify our concurrence in the above petition, and request its immediate presentation to the chancellor.”</p> <p>’Wbicb was signed by the managers.</p> <p>On the presentation of the petition the following order was-made:</p> <p>“ Upon reading and filing the petition of the Newark Savings Institution, setting forth the situation and character of the securities in which the moneys deposited for investment under the provisions of its charter have been invested, and praying for the direction of this court jn the administration of its trust, in order to secure absolute equality among the depositors, and promote the permanency and usefulness of the institution for the causes set forth in said petition ;</p> <p>“ And the court having fully considered the matters set forth in said petition,, and being of opinion that the said institution is a public trustee of the funds in its hands belonging to' its depositors, and that the administration thereof is under the control of this court, and that the facts set forth in said petition, justify the exercise of such control in'order to secure equality in the distribution and payment of said funds, and to enable the managers to administer their trust in such manner as, if practicable, to secure the depositors against ultimate loss, and. promote the permanency and efficiency of the institution ;</p> <p>“ And it further appearing to the satisfaction of the chancellor that the said ■institution will have received at the close of this year for interest on its investments during the last six months an amount more than sufficient to enable it to pay an interest of two per cent, on the deposits for the said term, and that it has on hand in cash, or its equivalent in United States bonds, sufficient to-pay on demand eighteen per cent, of its deposits :</p> <p>“ It is thereupon, on the twelfth day of December, eighteen hundred and-seventy-seven, ordered by the chancellor that the said institution be authorized, to credit and pay on and after the second day of January next, an interest or dividend of two per cent, out of its earnings for the past six months, on such, deposits as shall be then entitled to receive the same; that from and after the service of a copy of this order, the Newark Savings Institution do refrain from, paying to any depositor any sums which in the aggregateshall exceed eighteen per centum of the amount of the deposit standing to the credit of such depositor at the close of the eleventh day of December, eighteen hundred and seventy-seven, until the further order of this court.</p> <p>That the said institution shall hereafter, and until the further order of the-' court, refrain from making any disposition of .its assets except the payments to-•depositors above mentioned, and its ordinary taxes and expenses, without the approval and order of the court.</p> <p>“ That all deposits in said institution made on or after the twelfth day of December, eighteen hundred and seventy-seven, and until the further order of • the court, shall be treated as special deposits, and invested only in the bonds ■of this -state, the city of Newark, or the United States, and that separate accounts thereof be kept, and the actual interest received thereon, deducting necessary expenses and taxes, be paid as dividends upon such special deposits ; and that such deposits shall not be subject to any of the restrictions hereby imposed.”</p> <p>On June 12tb, 1880, another order was made permitting a portion of investments on mortgages of real estate. .</p> <p>On June 10th, 1884, a petition was presented to the court of chancery, entitled in the above matter, by William Una and, others (the respondents), which represented that petitioners were depositors in the institution, -and set out the- above-mentioned proceedings, and then charged that certain persons, managers of tire institution, had violated the above-mentioned orders by investing deposits in securities other than those therein specified. The petition prayed an inquiry into the conduct of the managers .in that respect, and that if they should be found to have violated the orders, they should be adjudged in contempt and punished accordingly. The petition was signed by counsel and answers •thereto were filed by the managers.</p> <p>Afterwards, on January 5th, 1885, an order was made thereon, adjudging Daniel Dodd (the appellant) guilty of contempt in that respect, and directing him to appear to receive the judgment •of the court as to the punishment to be awarded to him therefor.</p> <p>The appeal is from the last-mentioned order.</p>

<p>On appeal from a decree advised by Vice-Chancellor Bird, whose opinion is reported in Camden v. Newell, 13 Stew. Eq. 4-99.</p>