Volume 42 — New Jersey Equity Reports

<p>1. The interest on a mortgage on lands was payable to A for life, and the principal, after A’s death, to B, C, D, E and E, equally. Complainant, who bought the land subject to the mortgage and assumed its payment, filed a bill of interpleader, alleging that A was dead, and that C and her husband are dead, leaving children, who claim her share, and that G claims it individually and also as C’s administrator—Held, that the bill should be dismissed as to B, D, E and P, who are not shown to have any interest in the disposition of C’s share, and that no reason is alleged why complainant may not safely pay their respective shares to them.</p> <p>2. A bill of interpleader, which states that G claims to be administrator of C, and to be therefore entitled to a certain fund, and also that he claims an interest in such fund, without stating what that interest is, or how it was obtained, should be dismissed, because his claim is not specifically set forth.</p> <p>Bill of interpleader. On motion to dismiss the bill.</p>

A policy of insurance for $2,000 was issued to a land-owner, who held the premises subject to two mortgages. Held: That the company could not set up, as a defence, that suit on the policy had not been brought within a year after the loss occurred, as provided in the policy, because the first mortgagee might have brought suit thereon before he assigned his mortgage to the company, and after such assignment the company took his place.

<p>1. A city charter limited to fifty years the term for which lands could be sold to the city to pay taxes. At such a sale, the city bought complainant’s lands for a term of nine hundred years.—Held, that the statute (P. L. of 1881 p. 194) providing that no taxes &c. should be set aside for informalities &c., if the tax was in fact justly due, but that the court should make a new assessment, does not apply to a sale of lands for the enforcement of a tax, and therefore the court may decree such sale illegal, but as the tax itself was lawful, such decree will only be made on terms that the land-owner pay the amount of the tax, with interest thereon at the rate fixed by statute.</p> <p>2. A city charter limited to four years the time a tax should be a lien on the land assessed, and the general tax law to two years.—Held, that the constitutional amendment “ that property shall be assessed for taxes under general laws, according to its true value,” did not apply to the city’s lien as regulated by the charter.</p> <p>3. If a land-owner has lost his remedy at law against an alleged unconstitutional assessment by his own laches, or might have had it rectified by arbitration, he cannot obtain relief therefrom in equity.</p> <p>Bill to quiet title. On final hearing on pleadings, proofs and stipulations of counsel.</p>

<p>1. Where the son of the testator borrowed, through his wife, who had a separate estate, a sum of money from his father, the testator, upon the security of her bond and pledge of her separate property for the repayment of the money witli interest—Held, that an application, on behalf of the estate of the testator, to compel payment of the loan out of the legacy to the son under his father’s will, would not be entertained on those facts alone.</p> <p>2. The testator owned real property in France. By his will his executors had power of sale. Their application for instructions in respect to the sale of that property was refused on the ground that such sale was governed by the Jaw of France.</p> <p>3. By a provision of the will, the testator directed that out of his son’s share of the residue two deductions should be made, one of $200,000, and the other of $50,000, and the balance invested for his son’s life, for the son’s benefit. By a codicil he directed his executors, after deducting the $200,000, to invest the remainder, and appropriate the income for the benefit of his son and his family.—Held, that the object of the testator in modifying the former provision was to change the appropriation of the income, and not to deprive the son of the $50,000, and that the latter was therefore entitled to the $50,000.</p> <p>4. By a codicil, the testator stated that he was about to convey certain real estate in France to his son’s wife—Held, to be a mere expression of intention to grant to her by conveyance inter vivos, and not a devise by inference.</p> <p>5. The testator directed that certain moneys advanced to his son-in-law, on the security of an estate of the latter in France, be deducted from the share of the wife of the latter (his daughter) in his estate, and that, upon payment of those moneys in that wav, she should have the securities held by him therefor.—Held, that she is not entitled to the securities until, through a proper accounting, the debt has been paid out of her share.</p> <p>6. The executors had full power to sell and convey the real property as their judgment should direct.—Held, that, in the absence of any allegation of misconduct on their part, they would not be required to convey the land to the legatees on account of their legacies.</p> <p>7. A question in the cause under the will in reference to the appointment of executors was heard and disposed of by a vice-chancellor before the final hearing.—Held, that the cause must be considered as having been set down for hearing on that point, and could not be reheard, as a matter of course, upon the final hearing.</p> <p>Bills for construction of will &c. On final hearing on pleadings and proofs.</p>

A testator gave (1) the use of all his estate to his wife for life; (2) he provided for the support and education of his son A. if his… Held: that (5) of the will must be construed with (3), and that therefore T.’s interest in the houses was contingent, depending on his surviving his mother, and consequently T.’s children take his share (and not the heirs-at-law of H., who has died intestate), subject to the amount of the appraisement, with the interest thereon from the…

1. A bill was filed against a defendant by the directors of a bank, alleging embezzlements of its funds by him when cashier thereof, between 1862 and 1874, when he was elected president, and… Held: that the statute of limitations might be pleaded to the bill. 2. A plea in equity setting up the statute of limitations and denying the fraud imputed to defendant, is known as an anomalous plea, and it should always be accompanied by an answer in subsidium.

<p>A testatrix gave to her executors a conditional power to sell her real estate, and to invest the proceeds, and therefrom to pay an annuity, certain legacies, and the balance of the income to C. B. for life, and, after C. B.’s death, to pay, among other legacies, $3,000 to “ The American Dramatic Fund.” The power of sale has been duly exercised.—Held, that the legacy of $3,000 was a charge on the land, and that it was intended, by the testatrix, for the American Dramatic Fund Association, of which she was a member.</p> <p>Bill for legacy. On final hearing on pleadings and proofs.</p>

<p>That a stockholder has been refused permission to examine the books of the corporation with the assistance of an expert, his bill charging no fraud or misconduct on the part of the directors, but merely alleging that the reason for his examination is to discover whether he has been defrauded by the directors in the distribution of the assets, presents no ground of equitable jurisdiction ; his remedy is at law by mandamus.</p> <p>Bill for general relief. On general demurrer.</p>

<p>Complainant had had illicit intercourse with defendant, who alleged that she was pregnant by him. He gave her drugs to produce an abortion, for which, on her complaint, he was arrested. While under arrest, he went with the officer to the defendant’s house and requested her to withdraw the charge, but she did not consent to do so. She went with him and the officer to the magistrate. The officer stated to the magistrate that the defendant wished to withdraw the charge. The magistrate replied that that could not be done, and then informed complainant that he must marry defendant, give $1000 bail, or go to jail; complainant being unable to procure bail, offered to marry defendant, and, on her consenting, did marry her then and there.—Held, that he was not entitled to a decree annulling his marriage on the ground of duress.</p> <p>Bill to annul marriage. On rehearing of decree advised by special master acting as advisory master.</p>

<p>A testator gave the income of his property to S. for life. After her death he gave one-half of his “residuary” estate to A, B and C, “share and share alike, being the third part of said devise to each of them.” The remaining half he gave to D, E and F, “to each of them the third part of one-half of my residuary estate.” Testator died in 1867; S. in 1884. C and D died before the testator, intestate, and leaving issue. B and E died after the testator, but before S., and both died intestate, leaving issue.—Held, that the shares of C and D lapsed, and, being shares of the residue, the testator died intestate as to them, and that the shares of B and E were vested, and not contingent on their surviving S., and, there being nothing in the will to indicate any intention to give the residue to the legatees as classes, and not as individuals, each will be held to have been entitled to her share, and therefore the issue of B will take her share instead of A, and the issue of E will take her share instead of F.</p> <p>Bill for construction of will &c. On final hearing upon pleadings and stipulation of counsel as to the facts.</p>

<p>A married woman assigned to a stock broker two mortgages, which were her separate property, and also gave him her promissory note endorsed by her husband and secured by another bond and mortgage on her own property, all of such securities being given to enable her husband to carry on with the broker speculations in stocks on margins, which transactions, as well as the securities to facilitate them, are declared void by the statute prohibiting gaming.—Held, that she could maintain a suit in her own name to have them transferred to herself as against such broker’s assignee, who took them and holds them without consideration and with full notice of their origin and the character of their transfer to the broker, and that she could also enjoin such assignee from disposing of them meanwhile.</p> <p>Bill for relief. On general demurrer.</p>

A bill for partition of lands brought by an heir of an intestate against his widow and his other heirs, set out an alleged agreement by… Held: that the widow was entitled to her dower in the premises; that she must account for the rents received, and is entitled to proper allowances for taxes, repairs and interest upon encumbrances, and also to reasonable compensation for collecting the rents; that she had the right to occupy the house wherein she and her husband lived at…

1. Under a gift of one-half of the income of testator’s estate to his wife for life, and of the other half to his son until he becomes thirty years old,… Held: that the wife took a life estate in the homestead property; that the taxes thereon and the cost of ordinary repairs should be paid by the trustees out of the income, and that the widow is not entitled to the $200 exemption under Rev. p. 762 § 52, because such reservation would conflict with the terms of the will. 2.

<p>A testator gave to his widow the income of $2,000 for life, and to his son an annuity of $600, and a specific legacy to J., and directed his executors to invest the $2,000, and also a sum sufficient to produce the annuity. He appointed two executors, N. and H., who proved the will in 1873, and filed an inventory of the estate. N. received all the assets, and managed the estate alone for years. H. refused to take any part in the custody or management, and so stated to the beneficiaries, and they, by their conduct, acquiesced. In 1874 an account, purporting to be their joint account, was filed, and in 1879, under citation, a similar one was filed, but each was, in fact, the account of N., and contained only a statement of his receipts and disbursements. In 1881 both executors were removed, on a petition alleging that N. had wasted the estate, and complainant was appointed in their stead. There is no proof that either H. or the beneficiaries suspected the probity or solvency of N. before that time, nor that H. had any previous knowledge that N. was wasting the estate.—Held, that H. was not personally liable for N.’s acts, or for the property that came to his hands, although he stated to J. that he “would not act as acting executor, but would keep N. straight.”</p> <p>Bill for relief. On final bearing upon pleadings and proofs.</p>

<p>1. An executor or administrator has no right to the opinion of the court upon matters arising under the will, not connected with his administration.</p> <p>2. It is the duty of an executor or administrator, where personal property is given by the will to a trustee to be held in trust, and the trustee has refused to serve, and, no one has been appointed in his place, to take charge of the property, and protect and preserve it until a trustee shall have been appointed to receive it.</p> <p>Bill for construction of will &c. On final hearing on pleadings and proofs.</p>

The defendant, claiming that he had never received compensation for a strip of land used by complainant, brought ejectment therefor;… Held: that although the discovery had been made by defendant’s answer, the injunction should, nevertheless, be retained, on the ground that the possession of the premises was originally taken with the knowledge of defendant, and continued for about twenty years as part of the complainant’s road, with defendant’s acquiescence, during which…

<p>A contract for the sale of lands, which equity would have enforced at the suit of the vendor, creates an equitable conversion of the premises from the time of its execution, so that the widow of the vendor (the latter died intestate shortly after the contract was made) is entitled to her share of the proceeds as personal property, as against the next of kin and heir-at-law of her husband, although the court has refused to compel the vendees to carry out the contract because of such heir’s laches, whereby its execution had become inequitable, there being no fault on the part of the widow.</p> <p>Bill for relief. On final hearing upon pleadings and proofs,</p>

<p>A and B mutually agreed upon C as an assignee, to whom A assigned various claims which he held against third parties, which C was to collect, and transfer the net proceeds thereof to B, in liquidation of A’s indebtedness to B.—Held, that the fact that C was, at the time of such assignment, the attorney and counsel of B, in a suit for the settlement whereof the assignment was made, did not render B liable for his negligence in such collections.</p> <p>Bill for relief. Upon order to show cause why preliminary injunction should not be issued. On bill and answer (of Kimball) and affidavits on both sides.</p>

A testator directed his executors to sell all his real estate not otherwise disposed of by tlis will, and to re-invest the proceeds in… Held: that the limitation as to time was merely directory, and the use of the words “ and sooner” did not restrict the executor’s power to sell to one year after testator’s death; and further, that if the surviving executor was derelict therein, the beneficiaries under the power could compel him to execute it. Bill for specific performance.

<p>1. An attachment issued against a vendor after he has conveyed away the land, the deed therefor having been recorded within fifteen days after its delivery, creates no cloud upon the title.</p> <p>2. The vendor, in such case, cannot forestall the attaching creditor in his contemplated attack upon the title for fraud, by filing a bill to quiet title.</p> <p>Bill quia timet. On final hearing on pleadings and proofs.</p>

A bill to set aside an administrator’s deed, alleging that the heirs-at-law of “the intestate were infants, and that the administrator fraudulently induced the widow to renounce her right to administer, and proceeded fraudulently and illegally in the sale of the intestate’s lands to pay his debts, and conveyed such lands to B. and C., when the order confirming such sale directed him to convey to B., but alleging no fraud or complicity on the part of B. or C., was dismissed,…

<p>A testator, in January, 1882, when he was eighty-eight years old, gave complainant and defendant a joint power of attorney to transact all his business and to expend such moneys as they should see fit in his support. He had lived for many years with complainant, who was his daughter. In the winter of 1882 complainant and defendant made an agreement that the former should charge $30 a month for keeping testator, and that she would charge nothing more.—Held, that this agreement did not estop her from recovering from the estate the wages afterwards paid to a servant for taking care of testator, whose increased infirmities rendered such services necessary.</p> <p>Bill for relief. On final hearing upon pleadings and proofs.</p>

<p>A testamentary gift by a husband to his wife was accompanied by a provision that it should be in lieu of her dower and of any other right to which by law she might be entitled in his estate, real or personal.—Held, that the gift was intended to be in satisfaction of such rights only, in or to the testator’s property, as the law gives her as his widow; and consequently that it will not prevent recovery upon a mortgage (given by him to her before marriage) held by her upon his property.</p> <p>Bill to foreclose. On final hearing upon bill and answer. Submitted upon briefs of counsel.</p>

<p>That a testator’s property is given to his wife and children by the will does not interfere with the executor’s power of sale of the land, where such power is given by necessary implication from other provisions of the will, e. g., the testator’s combining all his estate, real and persona], for the purpose of division, and confiding the whole to the control and management of the executors until the children reach a specified age, coupled with a gift of the “proceeds” of the estate in the event of the children dying without issue before attaining such age, and also giving the executors power to divide the lands and convey the widow’s share thereof to her at any time, at her election.</p> <p>Bill for specific performance. On final hearing upon bill and answer.</p>

<p>The description of a mortgage of land lying on a navigable river and creek, began in the middle of the creek, and ran, among other courses, along the sand beach of the river, covering a specified number of acres, and concluding, “ With all the land attached and appertaining thereto, known as sand beach and guard, down to low-water mark,” in the river and creek. The mortgagor conveyed the premises the same day the mortgage was given, by the same description, to one D., to whom the riparian commissioners of the state shortly afterward conveyed two tracts in front of part of the premises, and between high-water line and the commissioners’ exterior line. D. afterward conveyed the premises to H., by the same description. Attached to the premises is a prescriptive right of several fishery in the waters covering the land conveyed by the riparian commissioners, and also a prescriptive right to take sand from the beach. By statute, only the owner of the upland has a pre-emptive right to obtain the adjoining riparian grant.—Held, that the grant to D. enured to the benefit of the mortgagees, and that as D. could not have set up such grant by way of defence to a bill to foreclose the mortgage, and thus exclude it from the premises to be sold under the foreclosure, neither could the present owner, his grantee, be permitted to avail himself of such defence.</p> <p>Bill to foreclose. On final hearing on pleadings and proofs.</p>

<p>An adjacent house-owner, who with his family is seriously annoyed by the loud noises and offensive odors from hucksters selling their produce from wagons in the public space surrounding a city park, including the sidewalks in front of and near his house, which disturb the sleep and comfort and conversation of the family, may enjoin the city from using, or authorizing or taking pay for the use of the streets in question, as a market place or stand for the sale of goods, although the nuisance may be also a public one, to be remedied as such, by indictment, and although the city does not create the nuisance, but only takes fees from the hucksters who do create it.</p> <p>Bill for injunction. On final bearing on pleadings and proofs.</p>

<p>The fiftieth section of the act concerning corporations, which authorizes the chancellor or the supreme court, or any justice thereof to order that the books of a corporation be brought into this state, does not, by implication, extend to the papers and memoranda of the company.</p> <p>Petition that the defendants be required to bring books &c. into this state. On order to show cause.</p>

A mandatory injunction requiring a telephone company to remove their poles from the highway in front of complainant’s premises, and forbidding them to erect others there, granted.

<p>To secure her husband’s debt, a married woman included a tract of her own land in a mortgage given by them, which also covered a tract belonging to him. Before it became due, the mortgagee, at the husband’s request, and without consideration or the wife’s knowledge, released part of his land, and afterward assigned the mortgage to complainant. Under a subsequent judgment and execution against the husband, all of the land embraced in the mortgage was sold to S.—Held, on foreclosure and cross-bill filed by the wife, that she was entitled to have the sheriff’s deed reformed by striking therefrom the description of her land, and that, on the ground that the mortgagee knew, when the mortgage was given, that she was merely a surety for her husband’s debt, she was entitled to an exoneration of her property from the lien of the mortgage to the extent of the value of the property so released, and that the mortgage debt must, as between her and S , be considered, as to that extent, paid.</p> <p>Bill to foreclose. On rehearing granted upon petition of defendant Smith.</p>

A testator by his will gave certain property to his son Thomas. Held: that the provision for the division of the residue after the widow’s death did not necessarily require its immediate division thereafter, and that the executor, who has ample funds on hand for the purpose, should apply a reasonable amount thereof for the support of Sarah’s infant children.

<p>The petitioner applied for a divorce a vinculo, on the ground that at the time the defendant married her, he had another wife living. After such marriage he was convicted of polygamy on his own admissions, and sentenced, therefor. Those admissions were that he had been married to a woman in Scotland, but that she was hopelessly insane at the time of his second marriage to a woman in New York, and that both of his wives were still living when he married the petitioner. He also made similar statements while he was in prison under the criminal sentence.—Held, that his admissions were plenary evidence of his having another wife living at the time of his marriage to the petitioner; for, if they were evidence of the nullity of his second marriage because his first wife was then living, and therefore such second marriage was void, there is also the presumption that his first wife is still living, and therefore the petitioner is entitled to a divorce. But if such first marriage be nob established by those admissions, then his second marriage is lawful, and petitioner may, on that ground, obtain a divorce.</p> <p>Petition for divorce a vinculo matrimonii. On final hearing on petition and depositions.</p>

<p>In 1882, a wife removed from this state, where the parties were married in 1870 and where they then lived, to the state of Michigan, where, after a residence of one year, she obtained a divorce from her husband on the ground of cruelty and habitual drunkenness. He was served with no process or notice of that suit, and had no knowledge thereof until early in 1885. In the Michigan suit the wife swore that her husband was a resident of New Jersey, and the court there proceeded against him by the publication of a notice in a local newspaper. The wife returned to this state, and, in April, 1885, married one K. here; she remained here only about half an hour, and then returned to Michigan, where she has been living ever since as the wife of K. On application by her husband for divorce on the ground of her adultery with K.—Held, that the Michigan divorce was a nullity as to him, whatever may be its effect in that state, and that it was no legal justification of the defendant’s intercourse with K., whether such intercourse took place here or elsewhere.</p> <p>Bill for divorce. On final hearing on pleadings and proofs.</p>

<p>A tract of land was bought by three persons, each having an equal interest therein, and the title was taken in the defendant’s name, in trust, merely for convenience. Afterward the tract was laid out into building lots, which were mapped, and it was mutually agreed that defendant should convey four designated lots to complainant, four designated lots to S., who was the third owner, and four designated lots to Mrs. S., a grantee of S. A mistake was made in each one of the conveyances thereof, and afterwards the rest of the tract was partitioned among complainant, defendant and S., but in such partition the lots omitted from the first allotment were not conveyed to the rightful grantees respectively, because it was supposed that they already had the title thereto. On a bill filed by the original parties to the allotment, their devisees and the grantees of the lots therein, against the defendant, to reform their respective deeds—Held, that there was such a common interest in the subject-matter of the suit as authorized the complainants to proceed together, and that consequently a demurrer for misjoinder of parties must be overruled.</p> <p>Bill to reform deeds. On general demurrer.</p>

1. For a simple trespass, which is complete when the force by which it is committed ceases, and which is continuous in nothing but the consequences which may flow from it subsequent to its commission, the only remedy known to the law is an action of trespass, in which the person injured must recover his damages once for all. 2.

<p>1. By the common law, the priority of liens, whether by mortgage or judgment, is governed exclusively by the date of their acquisition, the first in order of time standing first in order of rank.</p> <p>2. An unregistered mortgage executed by an ancestor, though prior in date to a judgment recovered against his heir in the ancestor’s lifetime, does not, on the ancestor’s death, become void under the twenty-second section of the statute concerning mortgages.</p> <p>3. A mortgage and judgment, in order to stand in the relation of being prior and subsequent to each other, must embrace or cover the same land.</p> <p>On final hearing on bill and answer and facts admitted.</p>

<p>1. The first section of the statute of 1880 (P. L. p. 255), declaring that no decree for deficiency shall be made in a foreclosure suit, is valid.</p> <p>2. Notwithstanding the constitutional provision that the legislature shall not pass any law depriving a party of any remedy for enforcing a contract which existed when the contract was made, it is competent for the legislature to change the practice of the courts, and any legislation which merely affects the pursuit of remedies for enforcing contracts is not within the constitutional prohibition.</p> <p>On demurrer.</p>

1. Contracts in restraint of trade are invalid, and this is so even when the restraint imposed is partial, unless the restraint be reasonable. 2. And the test to be applied, in determining whether a restraint is reasonable or not, is to consider whether the restraint is only such as is necessary to afford a fair protection to the interest of the party in whose favor it is given, and not so large as to interfere with the interest of the public. 3.

1. Where the charter of a railroad gives the corporation the right to cross highways, but makes it the duty of the corporation to construct and keep in repair good and sufficient bridges or passages over or under the railroad, so that travel over the highway shall not be impeded, an obligation is thereby imposed which requires the corporation to keep the highway, where it is crossed by the railroad, at all times and under all circumstances, in a condition fit for safe and…

<p>1. A consideration, sufficient to support a contract, may be defined to be either a benefit accruing to the promisor or a loss or disadvantage sustained by the promisee.</p> <p>2. A promise by a creditor to forgive or relinquish part of his debt, on the payment of the other part in money, is without consideration and void.</p> <p>3. But if a creditor agrees to relinquish a part of his debt on receiving a new or an additional security for the balance, or if he agrees to receive a chattel of less value than his debt, in satisfaction of his debt, his promise will have the support of a good consideration, and will be held to be valid.</p> <p>4. The payment of taxes, which are a lien on mortgaged premises, by a mortgagor, may be a good consideration for a promise by a mortgagee, holding a mortgage standing subsequent to the taxes, to relinquish part of his mortgage debt.</p> <p>On final hearing on bill and. answer and proofs taken before a master.</p>

<p>1. Public grants are to be strictly construed. The grantee can take nothing except what bis grant plainly gives.</p> <p>2. Where a right to cross or occupy a highway is granted by implication, the corporation can only occupy so much as may be reasonably necessary; and what is reasonably necessary, in case of dispute, must be settled by the courts.</p> <p>3. The twelfth section of the charter of the Morris Canal Company gives them a right to cross public highways wherever it is necessary that they should do so, but they must exercise this right in such a manner as to cause the least possible inconvenience to the public.</p> <p>4. Under the right to cross, the canal company do not take the fee of the land covered by the highway where their canal crosses, but simply a right of way; and so long as they are left in the free and unobstructed use and enjoyment of that, though the highway may be appropriated to other purposes than travel, they suffer no wrong, and have no cause of complaint.</p> <p>5. Where two highways meet, neither is entitled to destroy the other, but each must yield what is essential to the existence of the other.</p> <p>On final hearing on bill and answer and proofs taken before a master.</p>

The owner of the fee in the soil, over which is a right of way (an alley), may erect a building over said way, if, in so doing, he does not interfere with the right of way. On bill for injunction.

Hagan leased to Howard a shore front for ten years, with the right to build a pier thereon, by an instrument containing this clause: “In case of the destruction of said… Held: that a written surrender of all of his rights in the pier &c., executed after the recovery of these judgments by Howard to Hagan, without consideration, was not an “abandoning,” within the meaning of the lease, and could not be used by Hagan to defeat Gaskill’s lien on the pier, under his judgment.

<p>Machinery bought by a mortgagor, after he had given complainants their mortgage on his foundry, and attached thereto and used by him in manufacturing, with the knowledge of the vendor of such machinery, was held to be fixtures and covered by the mortgage, although such vendor took a bill of sale thereof with a condition that if the notes given for the price of the machinery should not be paid, the sale should be void, and the machinery revert to him, the acts of the vendor showing that he considered the bill of sale as merely a chattel mortgage, and the premises, including the machinery, being afterwards conveyed to him by the mortgagor. A planer, a hoisting block and chain, two iron lathes, and a drill-press were held, under the circumstances, to be chattels, and not embraced in the mortgage.</p>

<p>1. A judgment creditor of a decedent, who files exceptions to his administratrix’s account in the orphans court, need not, on the ground that he has not exhausted his remedy at law, wait until those exceptions are disposed of there before filing a bill in chancery to have such judgment declared a lien on lands conveyed away by the decedent, if such account as presented shows that all the assets amount to less than the judgment.</p> <p>2. A debtor died thirteen days after a judgment had been obtained against him on his bond.—Held, that it was not laches for the creditor to wait until after his administratrix had filed her account in the orphans court before filing a bill to have such judgment declared a lien on the decedent’s lands.</p> <p>3. A complainant’s bill to have his judgment declared a lien on lands conveyed away by the judgment debtor, which does not aver that such conveyance “hindered, delayed and embarrassed her” in collecting the money due on his judgment, may amend his bill by inserting such averments at the final hearing, if he shows that such conveyances were fraudulent as to him.</p> <p>4. A husband bought and paid for lands with his own money, and took the title thereto in the name of himself and wife. He borrowed money of complainant, giving her therefor a bond and mortgage on the premises, in which his wife joined. He made valuable improvements on, and had the exclusive control and profits of the premises. He induced complainant to surrender and cancel her mortgage by his promise to pay her the amount due thereon, but failed to do so, and she accepted his bond therefor. He subsequently conveyed his estate in the premises to his wife, still retaining the possession himself, and receiving the rents therefrom. Complainant afterwards recovered a judgment against him on her bond.—Held, that the debtor’s conveyance to his wife was fraudulent as to her, and should be set aside.</p>

<p>Charges in a bill that the managers of a savings institution petitioned the court, showing financial embarrassment, and asking the aid, direction, and protection of the court, and that they accepted an order from the court based on such petition, and that they proceeded to manage the affairs of the institution under said order and the law of the land ; and charges of what the duty of said managers was, under the charter, to the law and to said order, and that, in repeated instances, the said managers, or some of them as a committee or as agents of the rest, made several illegal loans, from which, however, no loss resulted, which illegal loans all had knowledge of or ought to have had, even, though they did not join in making them, and that they were guilty of negligence if they did not know; and that afterwards some of said managers made a loan to Fisk & Hatch, which was illegal and which resulted in loss; followed by a prayer that all of said managers may be held liable for the loss because of committing such illegal act, or because of their negligence in permitting it to be committed. Held, that such charges showing the condition of the institution and the unlawful management of it, prior to the time when the act was committed from which loss resulted, are not impertinent or scandalous.</p> <p>On exceptions to bill.</p>

The complainant agreed to mine and deliver to the defendants ore containing twenty-six: per cent, of oxide of zinc, which he did, and which they accepted, without objections on… Held: that the defendants are estopped; held, also, that the complainant was not accountable for the moisture which might appear in the zinc, as assayed by defendants, since he only agreed to deliver ore containing a certain percentage of zinc, no other condition being imposed by the contract.

<p>Trotter held a lease of a mine for a term of thirty years. He agreed with Heckscher and his assigns to furnish ore therefrom to him or them in certain quantities monthly, and in case of his failure so to do, he or they might enter and secure the ore, charging Trotter with all costs, until Trotter’s inability or failure should be satisfactorily removed. Trotter failed to deliver ore; Heckscher and his assigns threatened to enter; Trotter filed a bill to enjoin them and for an account; the court let Heckscher and his assigns into possession ; now Trotter files supplemental bill, and asks to be restored to possession, alleging that he can now furnish ore under the contract; he also asks for an account for waste, and for a manager ; defendants insist that Trotter forfeited his right to re-enter, by his misconduct and bad faith, and also insist that this court has not jurisdiction.—Held, that Trotter is entitled to the possession, no bad faith appearing; held, also, that be is not entitled to an account for waste, nor to a manager; and held, that this court has jurisdiction.</p>

L., being the owner of building loan stock, purchased loans; he used the money in purchasing a lot, and in erecting a dwelling thereon,… Held: that the' decree in that case did not rest on that allegation, and therefore that such allegation is not conclusive; held also, that the debt being the debt of the husband, he had a right to secure its payment, and that the assignment for that purpose, though first made to the wife, and by her to the association, was not a badge of…

<p>The executors of a wife cannot maintain a bill against the executors of her husband, who survived her, for waste, in cutting trees on her lands which he occupied as tenant by the curtesy after her death, on the ground of equitable conversion, nor for an account of the proceeds of such trees.</p>

<p>Where a mortgage was foreclosed by an assignee thereof, for non-payment of interest before the principal was due — Held, that his assignor could not prove the payment of all the interest to him by the mortgagor before the assignment.</p> <p>Bill to foreclose.</p>

A mortgagor is not entitled to an interpleader, on a charge that an attorney of the mortgagee demands the money due on the mortgage, and that the mortgagee was imbecile or insane when she executed such power of attorney, and that the mortgagee’s daughter forbids complainant to pay it to the attorney on account of such mental incapacity, the mortgagee herself not haying been made a party to the interpleader.

<p>Complainant, alleging that he was the creditor of a testator to a very large amount; that the defendant, the residuary devisee, who was also one of the executors, had as such fraudulently confessed a judgment for a large amount, and that thereunder the sheriff had levied on all the testator’s lands and sold all his personal property, obtained a preliminary injunction restraining the sheriff from paying over such proceeds and from going on with the sale of the lands. —Held, that such injunction would not be dissolved on the application of the defendant, although complainant had never presented his claim to the executors for payment, and has obtained no judgment at law on his claim, but the-executors have recognized it by making payments thereon, both before and after the expiration of the time limited by the rule to bar creditors.</p>

<p>The rule that an injunction will not issue unless the complainant’s right to the subject-matter in dispute,,and also to the remedy, is clear, applied to a case where complainant verbally rented a lot, and claims also to have rented an adjoining lot, which the landlord has sold to the defendant, his tenure of the latter lot being disputed, and, at best, appearing to be a mere verbal license to cross it, which could be revoked at any time by the landlord, and was, in fact, revoked by his conveying the lot to the defendant, whose acts in cutting trees and digging a cellar thereon for a house are sought to be enjoined as an irreparable trespass.</p>

<p>1. A contractor who agrees to take some of the buildings he erects in part payment of his work, may sell them before all the work is done. The proper course to pursue where the contractor has so sold the houses, and his vendee is in possession thereunder, but the owner has never conveyed, stated.</p> <p>2. An order for a general debt of the contractor, accepted by the owner, is not entitled to priority of payment, where the balance due the contractor is insufficient to satisfy all the subsequent lien claimants.</p> <p>3. What amounts to an acceptance of an order by the owner.</p> <p>4. The whole claim is impaired by claiming more than is due, or inserting items for work not lienable, e. g., flagging, or where the time of payment was extended by taking the contractor’s notes.</p>

The vendee of lands assumed and agreed to pay two mortgages thereon as part of the purchase-money of his conveyance. — Held, that the vendor could compel him to pay the amount due on the mortgages,… Held: that the vendor could compel him to pay the amount due on the mortgages, although the mortgagees were not parties to the suit.

A demurrer for want of parties may be sustained, where a bill is filed for the construction of a will disposing of real estate, and one of the questions is whether it is disposed of thereby, the devisees only being parties; the decedent’s heirs-at-law must also be joined. On demurrer.

<p>A surety on a guardian’s bond, who has paid the amount found due from the guardian to his ward by the orphans court, for which the ward has obtained a judgment against the sureties on their bond, may file a bill for contribution without first obtaining a judgment at law against his cosurety ; and may also compel discovery as to alleged fraudulent conveyances by the defendant since his liability on the bond was incurred, and grant relief if such fraud be established.</p>

<p>1. Deeds sent to a county clerk to be recorded, but which are not accompanied with his fees for recording them, are not, it seems, “ lodged ” with him within the meaning of Rev. p. 155 § 14, so as to be notice to a subsequent bona fide creditor of the vendor.</p> <p>2. If a creditor’s attorney have actual notice of a conveyance of his debtor’s land, he is as much debarred from claiming relief as a bona fide creditor without notice thereof, as if he had had such actual notice himself, although he denies notice in his answer under oath.</p>

A mortgagee in possession may be required to account to a subsequent judgment creditor of the mortgagor, who obtained his judgment after the mortgagee entered. On motion to strike out parts of an answer.

<p>A, residing in New Jersey, bought a printing-press of B, residing in New York, and gave his note therefor, payable in three months, at a bank in New Jersey. C, living in Pennsylvania, and claiming to be a creditor of B, attached this note by serving the writ on A, while he was temporarily in Pennsylvania. B was notified of the attachment by A, and thereafter transferred the note to D, before maturity, who now holds it, and has brought suit thereon in New Jersey against A. — Held, that A was entitled to a bill of interpleader, and could not be compelled to litigate, in the attachment suit in Pennsylvania, the disputed question whether or not D was a bona fide holder of said note, because she took it with knowledge of the prior attachment.</p> <p>On motion to dissolve injunction and dismiss bill.</p>

<p>Lands were devised to an executor, in trust for A for life and for B during her minority, with a gift over in case of B’s death, without children, before her maturity, and with power in the executor to sell the lands. B is now twenty-one, is married, and has two children living. — Meld, that A and B could elect to take the lands, and the executor should be enjoined from selling them, and that as B could not legally elect, on account of her coverture, the court would act for her.</p>

<p>R., owning or controlling a hotel at Long Branch, made a written contract giving the complainants the exclusive right to have and operate a telegraph office therein during the season of 1884, with the same right for each succeeding season, unless a specified written notice to the contrary should be given. No such notice has been given. — Held, that this court would enjoin R. from allowing a rival telegraph company to operate a competing office in the' same hotel during the season of 1885.</p> <p>On motion for injunction.</p>

1. A husband promised his wife that if she would join in executing a mortgage, he would make a deed to her for certain other property. Held: that the conveyance was not a bar to judgments recovered by his creditors. 2. The wife expended considerable sums of her own money in making valuable improvements ; it not appearing that she acted in any sense dishonestly. —Held, that she was entitled to the present value of such improvements.

<p>The rule that where there are conflicting expressions or clauses in a will, the last must prevail, applied to a case where there were three repugnant and irreconcilable provisions, and the estate ordered to be settled and distributed according to the directions of the last clause.</p> <p>On bill and answer.</p>

<p>A testator gave the interest on a share of his residuary estate to his daughter P. for life; and if she should die without an heir the share was to fall into his estate. His executors gave their bond to P., in 1857, with a condition like that in the will, and secured it by a mortgage on lands belonging to one of them and a third person. P. died in 1882, without an heir, leaving part of the accrued interest on the bond unpaid, and leaving a will appointing A. her executor. Both of P.’s father’s executors are dead, and B. has been made administrator de bonis non. Held, that A. and B. could join as complainants to recover, A. the interest and B. the principal due on the bond and mortgage.</p>

<p>A suit was brought by a wife against her husband and children to determine a dispute as to a trust in certain lands, and was decided. Afterwards a mortgage on the premises prior to the trust was foreclosed, the lauds sold, and some $200 surplus remained. — Held, that the wife was entitled thereto on account of the costs in the first suit, in preference to a creditor who had obtained a judgment against her before such suit was begun.</p> <p>On petition for surplus moneys.</p>

<p>A husband gave his wife a life estate in all he had, with remainder in fee to his children, and appointed her and B. executors. She never proved the will, but continued his business, and contracted debts therein, and died.— Held, that B. was entitled to all she left, in preference to her administrator or creditors.</p>

<p>Three tenants in common of lands gave a mortgage thereon to secure money borrowed by one of them from the mortgagee, who afterwards assigned it to the borrower’s daughter. — Held, on foreclosure, that it was no defence that the assignee knew, at the time of the assignment, that her father was the real debtor and his comortgagors only sureties, and that the only relief the latter were entitled to was to have the real debtor’s interest in the premises sold first before resorting to that of the sureties.</p>

<p>1. Where the attestation clause of a will is perfect, and one attesting witness testifies in corroboration of its accuracy as to the due execution thereof, the testimony of the other attesting witness, suggesting doubt, or his own want of recollection as to the transaction, is not enough to deny probate to the will.</p> <p>2. A duly executed codicil to a will, which expressly confirms the provisions of (he will not inconsistent with itself, is a republication of the will, and supplies all omissions and remedies all defects, if any, in the execution of the latter.</p> <p>3. Where the law involved is so well settled that there appears to be no good ground for appealing from a decree granting probate to a will, the court will not allow costs or counsel fees to the appellant.</p> <p>Appeal from decree of Camden orphans court.</p>

1. Although the personal estate of an intestate was not liable for the payment of a mortgage on lands bought by him, the payment of which… Held: that under the circumstances, the exception should be overruled, the payment having been for the exceptant’s benefit. 2. An administratrix was allowed the reasonable cost of a cemetery lot, which she purchased for the burial of the intestate, and wherein he was buried, although the title thereto was taken in her individual name. 3.

<p>If a caveat to the probate of a will before a surrogate be withdrawn before he is called upon to act, and before the orphans court has taken any action thereunder, as authorized in Rev. p. 755 § 14, the surrogate is not deprived of jurisdiction, but may admit the will to probate.</p> <p>Appeal from order of Hudson orphans court.</p>

<p>The act of 1881 (P. L. of 1881 p. 184), which requires that an action on a bond for a deficiency shall be brought within six months after the sale of the premises under the foreclosure of the accompanying mortgage, is in derogation of the creditor’s common law remedy, and must be strictly construed, and does not prevent his presenting his full claim to the representatives of the deceased mortgagor before such foreclosure sale, and obtaining his dividend on the amount of the deficiency, if the estate be insolvent, more than six months after such sale, although no action has been brought on the bond.</p> <p>Appeal from order of Morris orphans court.</p>

<p>1. A husband deposited money in a savings bank in the joint names of himself and wife. The entry was “ Bank for Savings, in account with A. G. and wife, B., or either.” He had already deposited there, on the same occasion, as much as the bank would receive in his name. He drew the interest on the first-mentioned deposit himself. There was no proof of a delivery, and the only evidence of a gift was a declaration to his wife, when she was scolding him about drawing the other money from the bank, that he would have no more to do with it.</p> <p>2. A wife is not competent to testify to the gift of a chattel by her husband to her, which she says he gave to her, not for her own use, but that she might give it to a relative.</p> <p>3. Where the court below does not fix the value of a chattel with which it and this court adjudges that the accountant should be charged, its value may. be fixed here.</p> <p>Appeal from decree of Morris orphans court.</p>

<p>Note. — Where an appeal has been taken from the appointment of an administrator, his powers are suspended, and the probate court should appoint a special administrator, Palms v. Wayne, 39 Mich. 302; Arnold v. Sabin, 4 Cush. 46; Crozier v. Goodwin, 1 Lea 368; see Bloomfield v. Ash, 1 South. 314; Shauffler v. Stoever, 4 Serg. & R. 202 ; Cleveland v. Quilty, 128 Mass. 578.</p> <p>And so of an appeal from the removal of an administrator, Dutcher v. Culver, 23 Minn. 415 ; Bills v. Scott, 49 Tex. 430; Calvert v. Williams, 9 Gill 172; Muirhead v. Muirhead, 8 S. & M. 211; but see Mullanphy v. St. Louis Co., 6 Mo. 563 ; Harney v. Scott, 28 Mo. 333 ; Biddison v. Mosely, 57 Md. 89 ; or executor, Commonwealth v. Judges, 10 Pa. St. 37 ; Sarle v. Scituate, 7 R. I. 270 ; Walker v. Dougherty, 14 Ga. 653 ; Dean v. Biggers, 27 Ga. 73; or guardian, State v. McKown, 21 Vt. 503; Smith v. Davis, 45 N. H. 566.</p> <p>An appeal from an order of the surrogate refusing probate to a will deprives him of power to appoint an administrator pending the determination of such appeal, Hicks v. Hicks, 12 Barb. 322; see Bradford v. Boudinot, 3 Wash. C. C. 122; Hayes v. Hayes, 75 Ind. 395.</p> <p>The reversal of a surrogate’s decree admitting a will to probate, on a question of fact and an issue awarded thereon, does not suspend the executor’s functions until the final determination of such issue, and a revocation of the probate by the surrogate, and notice thereof to the executor, Thomson v. Tracy, 2 Bradf. 325, 60 N. Y. 174; see Fisher’s Case, 15 Wis. 511; Offut v. Gott, 12 G. & J. 385; Floyd v. Herring, 64 N. C. 409 ; Hoyt’s Case, 31 Hun 176.</p> <p>But if the executor should die pending the appeal, letters de bonis non granted to his executor on the estate of the first testator could not be questioned collaterally, Finn v. Hempstead, 24 Ark. 111; see Clemens v. Walker, 40 Ala. 189 ; Slade v. Washburn, 3 Ired. 557.</p> <p>An appeal from an order revoking the probate of a will does not revive the powers and functions of the former executor, and the court has power to-appoint an administrator to take charge of the estate, Crozier’s Case, 65 Cal. 332.</p> <p>Where permanent administration has been granted, and an appeal therefrom taken, the temporary administrator continues in office until the appeal is disposed of, and the permanent letters affirmed. Gresham v. Pyron, 17 Ga. 263; Robinson’s Estate, 12 Phila. 14.</p> <p>If an appeal from the appointment of an administrator be discontinued, his powers, which have been suspended meanwhile, revive. Fletcher v. Fletcher, 29 Vt. 98.</p> <p>Query. Whether an action begun by or against an administrator pendente lite would be abated by the termination of the litigation wherein he was appointed, 1 Wms. on Ears. 490, 492; Davis v. Chanter, 2 Phillips 545; Scoffield v. Craddock, 7 Harr. & Johns. 40; Smith v. Davis, 45 H. H. 566; Cowles v. Hayes, 71 N. C. 230; Morrison v. Cones, 7 Blackf. 593; Broach v. Walker, 2 Ga. 428; Hunt v. Wilkinson, 2 Call 49; Hall v. Pearman, 20 Tex. 168; Nat. Bank v. Stanton, 116 Mass. 435; McDonald v. O'Connell, 10 Vr. 317.</p> <p>An appeal will not lie from the appointment of an administrator pendente lite, Pratt v. Kitterell, 4 Dev. 168. See Lawrence v. Parsons, 27 How. Pr. 26 ; Wade v. Amer. Col. Soc., 4 S. & M. 670; Ellmaker’s Estate, 4 Watts 34; or from his removal, Flora v. Mennice, 12 Ala. 836; but it has been held to lie from a refusal to appoint, Gresham v. Pyron, 17 Ga. 263. — Rep.</p>

If a person be appointed in a will an executor and trustee, such person is entitled to commissions, calculated on the corpus of the estate, in each capacity, at such rate as will yield a reasonable compensation for the service in each of such respective offices. On appeal from a decree of the ordinary, whose opinion is reported in Everson v. Pitney, 13 Stew. Eq. 539.

If a decree of the court of errors be misentered in the minutes, it must be executed by the court of chancery according to its terms, the proper practice being to apply to the court of errors to rectify the entry of such decree. On appeal from a decree of the chancellor, whose opinion is reported in Gilmore v. Tuttle, 13 Stew.

<p>The former opinion of the court, delivered by Justice Parker, is reported in Rudderow v. Dudley, 14 Stew. Eq. 611.</p>

<p>1. The fourteenth section of the act concerning conveyances, requiring deeds or conveyances of lands, tenements or hereditaments to be recorded, does not apply to leases for years, nor does the mortgagee registry act apply to mortgages of such leasehold estates.</p> <p>2. If a judgment creditor releases his judgment to enable the judgment debtor to borrow money on mortgage from A, and A loans the money, and takes a mortgage to secure it, the judgment creditor is chargeable with notice of such mortgage, and he cannot set up a judgment recovered after the delivery of such mortgage to A, and displace it because the mortgage to A is-not recorded before the entry of such judgment.</p> <p>On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Deane v. Hutchinson, 13 Stew. Eq. 83.</p> <p>This suit was originally brought by Royal E. Deane and George G. Brooks, partners &c., for a partition of a leasehold interest, but during its pendency the estate sought to be partitioned was sold at sheriff’s sale, under a judgment on a mechanics’ lieu paramount to the rights of any of the parties to this suit. After the sale, A. E. Hutchinson, appellant, filed his answer, and asked the same benefit of his defence as if he had demurred.</p> <p>Subsequent to this sale, the complainants filed a supplemental bill, praying the same relief as to the surplus realized at the sheriff’s sale as they had in their original bill to the leasehold interest described therein.</p> <p>The defendant Charles H. C. Beakes was not made a party to the original bill, but was'brought in by the supplemental bill, and made a party defendant.</p> <p>The defendant Alison E. Hutchinson gave notice to dismiss both the original and supplemental bill, for want of equity.</p> <p>The motion to dismiss was refused, and testimony was taken under the bill and answers, and the chancellor thereupon decreed that the sheriff pay, out of the surplus moneys remaining in his hands, amounting to $1,258.67, to the defendant Charles H. C. Beakes, the amount due on his judgment, together with his costs of this suit, and that he pay the balance of such surplus moneys to the defendant John B. Hutchinson.</p> <p>From this decree the defendants Alison E. Hutchinson and Sarah C. Hutchinson have appealed.</p> <p>The appellants did not ask for affirmative relief, neither did the defendant Charles H. C. Beakes ask for affirmative relief against the appellants, or either of them.</p> <p>The answer of Beakes is only an answer to the bill of complaint. There is no cross-bill or answer in the nature thereof to the answer of the appellant Alison E. Hutchinson, and no affirmative relief against him properly raised in the pleadings, and not being within the issue the bill should have been dismissed. Brinkerhoff v. Franklin, 6 C. E. Gr. 334, 337 ; Hoff v. Burd, 2 C. E. Gr. 201; Shannon v. Marselis, Sax. 413.</p> <p>The chattel mortgage made by McChesney & Hutchinson to Alison E. Hutchinson, June 16th, 1882, covers only the building.</p> <p>This building is a personal chattel. It was put upon the property by the tenants with the consent of the landlord (see lease, James A. Bradley to McChesney & Hutchinson), and is removable at any time before the expiration of the lease. A recent case is that of Ham v. Kendall, 111 Mass. 297; see Taylor v. Townsend, 8 Mass. 416. The intention of the parties must govern. Brearly v. Cox, 4 Zab. 289; Blancke v. Rogers, 11 C. E. Gr. 563, and numerous cases cited; Vorhis v. McGinness, 48 N. Y. 278; Pope v. Skinkle, 16 Vr. 39, and cases therein cited; Wood’s Landlord and Tenant §§ 523, 528, 529.</p> <p>A question akin to the present was considered in Pope v. Skinkle, 16 Vr. 41.</p> <p>Many cases indicate the propriety of such an inference. Thus, in Doty v. Gorham, 5 Pick. 487, the permission of the landowner to the erection of the structure was all that appeared to-bind him, and the court held that the jury rightly found that the builder might remove the building as a chattel. In Ham v. Kendall, 111 Mass. 297, the land-owner agreed that another might put an ice-house on his land, and that it might remain there five years; there was no agreement that it should be a chattel or be removable by the builder, but the court held that it' was the builder’s chattel, and he might remove it during the five years. In Osgood v. Howard, 6 Me. 452, a tenant at will had erected a dwelling-house and other buildings on the land with the express consent of the landlord; after his death the tenant’s administrator sold them to a stranger; the court held that the purchaser could maintain trover for them against the land-owner, putting its decision expressly on the consent, and not on the fact of tenancy. In Dame v. Dame, 38 N. H. 429, the court says that the express assent and permission of the land-owner to the-erection by another of a building on the land, almost necessarily implies an understanding that the builder may remove the building, and creates a tenancy at will in him. Numerous cases are there referred to as illustrative of the doctrine. See, also, Whiting v. Brastow, 4 Pick. 310.</p> <p>Now this building, being a chattel in contemplation of all the parties in interest, was properly the subject of chattel mortgages. It was covered by such mortgages, which were duly recorded in the clerk’s office at Freehold, the last covering leasehold interest. The record (taken in connection with the record of the lease) instantly became notice to all persons, and the mortgages were “ valid against the mortgagor and his creditors, and against subsequent purchasers and mortgagees.” P. L. of 1880 p. 267.</p> <p>As to lien of the defendant (appellant) A. E. Hutchinson’s chattel mortgage on the leasehold, the question is settled. 1 Jones on Mort. (3d ed.) § 471; Jones on Chat. Mort. 258; see Decker v. Clarke, 26 N. J. Eq. 163; Spielmann v. Kliest, 9 Stew. Eq. 199.</p> <p>In the second place, if this chattel real was partnership property, as alleged (which we deny), W. W. McChesney and John B. Hutchinson held it in joint tenancy, but it was not “ so expressly set forth” in the lease. See Rev.p. 167 § 78. But where deeded as here, “ the title at law rests in the partners individually.” Ensign v. Briggs, 6 Gray 329. And “a purchaser without notice would not be bound.” Tiff. & B. Trusts 98.</p> <p>Before judgment and levy, creditors of a firm have no lien. Greenwood v. Brodhead, 8 Barb. 596; Freeman v. Finnall, 1 S. & M. Ch. 627 ; 9 N. J. Eq. 466; 17 N. J. Eq. 262; Robb v. Stevens, 1 Clarke 198.</p> <p>Not only is there “no lien” before execution, but there is no equity before execution is issued. Story on Part. (7th ed.) §§ 358, 359.</p> <p>Note that the levy attempted April 5th, 1884, under the Beafees judgment was nugatory, no title in either defendant. Belford v. Crane, 1 C. E. Gr. 265.</p> <p>Claims of partnership creditors cannot be preferred to those of the individual partners, unless there is bankruptcy or insolvency of the firm. Washburn v. Bank, 19 Vt. 278; 7 Iowa 183; 13 Md. 102 ; 124 Mass. 1; 26 Ga. 568.</p> <p>And a bona fide assignment of the rights and interest of a partner in the partnership property would defeat this so-called lien of the partnership creditors. 10 Ves. 347; 13 Ala. 846 ; 35 Iowa 323 ; 8 Ired. Eq. 21.</p> <p>Nor is the effect of a conversion of the joint into a separate estate “ altered by the circumstance that at the time it took place the partners knew that the firm was insolvent.” 2 Coll, on Part. (6th ed.) 1447 § 916; 15 Gratt. 400; Willard’s Eq. Jur. 719; Story on Part. § 360.</p> <p>And then “it is only through the lien of the partners.” Sanderson v. Stockdale, 11 Md. 573; Holloway v. Turner, 61 Md. 217; Mayer v. Clarke, 40 Ala. 259.</p> <p>“ Partnership creditors have a claim to priority of payment out of the joint funds so long as they continue to be joint, but no specific lien, legal or equitable, upon them a priori, the only lien belonging to the partners.” Allen v. Centre Valley Co., 21 Conn. 135.</p> <p>But, “ a partner by his sale, loses all equitable lien on partnership property.” Vosper v. Kramer, 4 Stew. Eq. 420.</p> <p>And so “upon the dissolution of a partnership, the firm property may, for a valuable consideration, be sold and transferred to one of the partners, and when thus disposed of, it is not followed by, nor subject to, the claim of the partnership creditors, as a fund out of which they are to be paid, and this rule prevails, even though the partner so acquiring the property assumes the payment of the partnership debts.” City of Maquoketa v. Willey, 85 Iowa 323; Coover’s Appeal, 29 Pa. St, 9.</p> <p>The doctrine that the separate debt of one partner shall not be paid out of the partnership estate until all the debts of the firm are discharged, is correct, but it does not apply until the partners cease to have a legal right to dispose of their property as they please. It is applicable only when principles of equity are brought to interfere in the distribution of the partnership property among the creditors. Those equitable principles operate on the property remaining in the possession of the parties, and embrace all that has been fraudulently disposed of. McDonald v. Beach, 2 Blackf. 55; approved, 2 C. E. Gr. 262 ; Case v. Beauregard, 99 U. S. 119.</p> <p>McChesney’s interest could be levied on. Hill v. Beach, 1 Beas. 31.</p> <p>At the time of complainant’s levy and sale, no one had any lien or equity upon the property, unless it was John B. Hutchinson, and he did not assert any. Young v. Frier, 1 Stock. 465; Mittnight v. Smith, 2 C. E. Gr. 259.</p> <p>The rule is one “which prevails in courts of equity in the distribution of equitable assets only. Those courts have never assumed to exercise the power of setting aside or in any way interfering with an absolute right of priority obtained at law. In regard to all such cases, the rule is equitas sequitur legem.” Meech v. Allen, 17 N. Y. 300, 302; 1 Story’s Eq. Jur. § 553; National Bank v. Sprague, 5 C. E. Gr. 30; Howell v. Teel, 2 Stew. Eq. 302.</p> <p>And so, too, “ the principle that the separate creditors of each partner are entitled to be first paid out of the separate estate of their debtor, before the partnership creditors can claim anything, cannot apply to creditors who have secured their debts by judgment and execution liens.” Wisham & Kay v. Lippincott, 1 Stock. 353.</p> <p>“ An execution against a firm has the preference over one against an individual partner, but when property is sold on an execution against a partner, though after the delivery of the execution against both partners, it is a valid sale, if sufficient time had not elapsed for an advertisement and sale under the other execution.” Fenton v. Folger, 21 Wend. 676.</p> <p>We contend for what the American annotator, in Coll. on Part. (6th ed.) 1150, says “ would seem to be the true rule,” as established in Sanders v. Young, 31 Miss. 112, where it was held that “ the legal interest of a partner may be levied on and taken possession of by the sheriff on execution and attachment, which is the partner’s proportionate share of the partnership property, and not his share of what remains after the firm debts are paid, but that the solvent partners may, while the sheriff is proceeding, file their bill in equity, and upon proper showing, limit the creditor to, the actual interest of such partner after a settlement of the partnership debts. See, also, Coll. 1148 ; 8 Clarke 13 ; 18 B. Mon. 463 ; 12 Cal. 199.</p> <p>There is no evidence, in this case, of fraudulent conveyance, and before the recovery of the Beakes judgment, or the interference of the court of equity, the chattel real had passed out of the possession of the alleged firm. Neither partner has asked to have the property applied as firm property. And by decree pro confesso against both, they are concluded, upon the question of its being firm property at all.</p> <p>I. The court was right in making a decree determining the interests of the parties before it in the fund in the hands of the sheriff.</p> <p>In a court of equity a decree may be made determining the rights of codefendauts in a controversy between themselves, in which the complainant has no interest. Vanderveer v. Holcomb, 2 C. E. Gr. 547 ; Shannon v. Marselis, Sax. 413.</p> <p>The supplemental bill clearly brought these questions before the court, and all the parties were before the court. If the bill should be dismissed, the matters settled by this decree would have to be litigated anew. As was said by Chief-Justice Ewing, sitting for the chancellor, in Decker v. Caskey, Sax. 427, “ It is the desire as well as the duty of this court, never to do justice by halves; never merely to beget business for another court, and never, when a case is fairly within its jurisdiction, to leave open the door for litigation further or in any other place, if it can possibly be here closed.”</p> <p>Putting the case in the strongest possible light for the benefit of the appellants — leaving aside the inconsistent positions assumed by them, and leaving aside the issues raised by the supplemental bill — their claim is distinctly denied by Chancellor Green in the case of Blair v. Porter, 2 Beas. 267. In that case the chancellor was of the opinion that in strictness the bill should be dismissed; but he refused to do so, saying: “The fund is in court and under its control. All the necessary parties are before the court. Their rights may be definitely settled and fully protected by a final decree. The effect of dismissing the bill would be to leave the parties, after five years of fruitless controversy, with nothing settled but liability for costs, to commence litigation anew.”</p> <p>II. The court was right in decreeing that the money in the hands of the sheriff should be appliod to the payment of the judgment of respondent Charles H. C. Beakes.</p> <p>First. The building erected by the partners was incorporated into and became part of the land. Ewell on Fixtures p. 89; Linnahan v. Barr, 41 Conn. 471.</p> <p>Second. The building being a part of the land, the chattel mortgage to Alison E. Hutchinson for $2,000 constitutes no lien whatever.</p> <p>A chattel mortgage on realty is no lien, even as against persons having full notice of its existence. Richardson v. Copeland, 6 Gray 536.</p> <p>Chancellor Runyon, in Decker v. Clarke, 11 C. E. Gr. 163, held that the chattel mortgage act, which embraces “ every chattel mortgage,” refers only to mortgages of chattels personal, and does not include a mortgage of a leasehold interest in lands. See, also, Spielmann v. Kliest, 9 Stew. Eq. 199. The statute concerning leases for more than two years (Rev.p. 157) indicates the manner in which leasehold interests are to be encumbered. If this should be considered a mortgage of the interests of the lessees in that building, what would be the result? Suppose the mortgagee foreclosed his mortgage, what does the purchaser at the sale acquire ? He is unable to take the building away, because it is part of the land; he is unable to use it in any way, because as soon as he enters it he becomes a trespasser on the land underneath.</p> <p>Third. If the building is a chattel, and the mortgage of the appellant Alison E. Hutchinson a valid lien upon it, he certainly has no interest in the surplus money in the hands of the sheriff. That money was raised at a sale under an execution commanding the sheriff to make sale of certain lands. He had no authority to sell anything else, and the money in his hands must be regarded as the proceeds of the sale of realty. Arnett v. Finney, 2 Stew. Eq. 309. A chattel mortgagee can have no interest in such proceeds.</p> <p>Fourth. The appellant Sarah C. Hutchinson has no interest in the fund in the hands of the sheriff.</p>

1. “ If any or either of my children shall enter a caveat against this my will, he or they shall pay all expenses of both sides,” is a good condition in a will, without a gift over, against a devisee taking real estate under the will. 2.

1. The defendant, who was a director and member of the finance committee of a savings bank, which afterwards became insolvent, and a receiver was appointed, having acted with the president in investing its funds on mortgage on real estate, not worth at least double the amount of the sum invested above all encumbrances, against the prohibition in its charter (P. L. of 1869 p. 180 § 10), is chargeable with loss on the investment. 2.

A defectively organized corporation issued bonds, secured by a mortgage of its property, to pay its debts and meet its current expenses, and the… Held: that such transaction was not analogous to an assignment for the benefit of creditors, nor did it create any illegal preference of creditors; (2) that the insolvency of the company, if a fact, at the time of issuing the bonds, did not invalidate the mortgage or the rights of the bondholders thereunder ; (3) that many of the…

1. The lien of a mortgage duly registered will not be lost by a cancellation ■ of record effected through accident, or the mistake or fraud of third persons. 2. If cancellation be the result of the negligence of the owner, he will not •be permitted to establish his lien against subsequent bona fide purchasers or .mortgagees acting upon the faith of such cancellation of. record. 3.

Under special circumstances a wife was held bound by a judgment at law against her husband, on the ground that she was a real, though not a nominal, party to the litigation. On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Stanford v. Lyon, 10 Stew. Eq. 9⅛.

A substantial dispute over a private legal right in land is not ordinarily cognizable in a court of equity. The special circumstances which will justify a court of equity in protecting and enforcing such rights enumerated. On appeal from a decree advised by Vice-Chancellor Bird, who filed the following conclusions: This bill is filed to obtain an injunction against the defendant, restraining him from obstructing an alleged private way over his lands.

1. An administrator, after settling his final account, held in his hands the •distributive shares of two infants for whom (no guardians having been appointed) he had made disbursements from time to time, both before and after ■the passing of his final account. 2.

1. When two parties occupy to each other a confidential relation, and a sale 5s made by the party reposing confidence to the party in whom confidence is reposed, equity raises a presumption against the validity of the transaction; to sustain the sale, the buyer must show afiirmatively that the transaction was conducted in perfect good faith, without pressure of influence on his part, and ■with complete knowledge of the circumstances and entire freedom of action •on the part…

<p>A mutual fire insurance association issued a policy to its treasurer on a house owned by him. The policy contained several conditions, but not all of the by-laws of the association. The treasurer afterwards sold the house and lot to the complainant, and assigned the policy to him. The complainant, during the negotiations, asked the treasurer, in the presence and hearing of the secretary, whether the policy contained all the conditions of insurance, and he replied that it was all there, the secretary remaining 'silent. After a loss by the burning of the house, complainant brought an action at law on the policy, to which the association pleaded a by-law (not mentioned in the policy) which he had violated and thereby forfeited all right of recovery, to which complainant demurred, and his demurrer was overruled. — Held, (1) that the treasurer was presumed to know all the by-laws of the association, and complainant, as the assignee of his policy and also as a member, was presumed to have similar knowledge, and was therefore bound by such by-law, although not incorporated in his policy; (2) that as the officers of a mutual association cannot waive its by-laws, the defendants were not estopped by the treasurer’s declaration to the complainant, nor by the secretary’s silence when such declaration was made; (3) that, as there is no allegation of mistake on the treasurer’s part, the policy cannot be reformed, nor defendants enjoined from setting up at law, as a defence, the condition alleged to have been violated by complainant.</p> <p>Bill for relief. On general demurrer.</p>

Complainants allege that the chief-engineer of the B. & D. B. B. B. Co. made an agreement with one J. G. V. in 1860, that in consideration of… Held: that the defendants were under no legal obligation to fence their track by virtue of the agreement of 1860, the consideration thereof having wholly failed; nor under the general railroad law {Rev. 933 $ 1%0), which only applies to corporations formed thereunder; nor, in this court, under the general fence act {Rev. 418), which…

1. In 1861 a bill was filed charging, among other things, that defendant had agreed to convey to complainant an undivided half of certain lands in Pennsylvania, in consideration of complainant’s… Held: that complainant’s testimony, taken after defendant’s death, was incompetent to establish the terms of the agreement. 2. Various matters of account were in dispute in this suit.

<p>An injunction found upon a bill to compel defendant to perform specifically ■a parol agreement to lease certain lands was, under the circumstances, dissolved, although the bill and complainant’s affidavit thereto stated that the agreement was made by defendant’s agent, and the answer was verified by defendant, but not, so far as the denial of the alleged agreement was concerned, ■of his own knowledge, and it was verified also by the agent’s affidavit and by •defendant’s own affidavit (of his own knowledge) as to a verdict found against ■complainant’s allegations in an action concerning the possession of the premises, and also that complainant’s testimony in that case contradicted such ■ allegations.</p> <p>Bill for specific performance. Motion to dissolve injunction.</p>

<p>1. A constable’s return on an execution — “Montville, April 12th, 1886. 1 return the within execution unsatisfied; found no goods and chattels on •which to levy” — is sufficient for the purpose of docketing the judgment in the •court of common pleas.</p> <p>2. An allegation in a creditor’s bill attacking his debtor’s conveyance of lands for fraud, that such conveyance was made to protect the land from the •claim of complainant, or the other creditors, is sufficient, without also alleging ■whether complainant’s claim was recovered before or after such conveyance.</p> <p>Creditor’s bill. On general demurrer.</p>

A constable’s return on an execution issued on a judgment recovered in a justice’s court: — “ February 22d, 1872 — 1 return the within, no property whereof to make the within or any part thereof” — is sufficient to validate a judgment docketed thereon in the common pleas. Bill to foreclose. On final hearing on bill and answer of David Wasserman.

<p>In 1870 a husband and wife owned certain lands, the latter an undivided one-eighth thereof, and they sold it to A and B, who paid the husband $3,000 in cash, which he applied to his own use, and gave him a mortgage for $12,-000, the balance of the consideration. In 1875 A and B, in consideration of $100 and the cancellation of their mortgage, reconveyed the premises to the husband. After his death and on a partition of the premises — Held, that the wife was entitled to one-eighth part thereof in her own right.</p> <p>Bill for partition. On final hearing on pleadings and proofs.</p>

<p>Note. — A “ town ” may be interpreted, in a popular sense, as a congregation of houses, Regina v. Cottle, 16 Ad. & El. (N. 8.) 41%; CoUier v. Worth, L. R. (1 Er,eh. Div.) 464; see Regina v. Fisher, 8 C. & P. 612; Dougall v. Sandwich &e. Road Co., 12 U. C. Q. B. 59; Ohio &e. R. R. Co. v. Irvin, 27 111. 178 ; but the houses must be continuous, Elliott v. South Devon Railway Co., 2 Exch. 725 ; Milton v. Faversham, 10 B. & S. 548, note; Garington v. Wycombe Railway Co. L. R. (8 Ch. App.) 377; London &c. Railway Co. v. Blackmore, L. R. (4 A. of L.) 610 ; Murray v. Menefee, SO Ark. 561; Truax v. Pool, 46 Iowa 356; Fitz v. Boston, 4 Cush. 365; Holmes v. Jersey Oiiy, 1 Beas. 305 ; Ohieago &c. B. B. Co. v. Oconto, 50 Wis. 189; see Blanehard v. Bissell, 11 Ohio St. 96 ; Oates v. McDaniel, % Slew. (Ala.) 311. The meaning of the word “ town ” may be construed, according to custom or usage, beyond its natural import, London v. Long, 1 Camp. S3; Steyei• v. Dwyer, 31 Iowa 30 ; Villars v. Kennedy, 5 La. Ann. 134; Milarkey v. Foster, 6 Oreg. 378.</p> <p>A town may include a city, Allen v. People, 84 111. 503; Flinn v. State, 34 Ind. 386; Blood v. Bangor, 66 Me. 154; Van Biper v. Parsons, 11 Vr.4; Pell v. Newark, 11 Vr. 550 ;' Andmon v. Trenton, 13 Vr. 487 ; Sutlerly v. Camden, 13 Vr. 496; Board of Comrs. v. MaGurrin, 6 Daly 349; State v. Glennon, 3 B. I. 376 ; Kittredge v. Milwaukee, 36 Wis. 46; see Sherman v. Milwaukee, 30 Wis. 93; Beaudette v. Fond du Lac, 40 Wis. 44; and even a township, Pell v. Newark, 11 Vr. 555, Beasley, C. J.; (but see Banta v. Bicharás, IS Vr. 497; Fritls v. Somerville, 7 N. J. L. J. 91, Magie, J.; or a village, Peck v. Weddell, 17 Ohio St. 371.</p> <p>A city may be also a parish. Begina v. Fomcett St. Mary, 13 Ad. & FI. (N. N.) 160; Milford y. Godfrey, 1 Pick. 98; see Preston v. Buckley, L. R. (5 Q. B.) 891; and may include a town, Burke v. Monroe Go., 77 111. 610; see Martin v. People, 87 IÜ. 524; Rafter y. Sullivan, 13 Abb. Pr. 262; Eaton v. Manitowoc Co , 44 Wis. 489; or an election district, Smith v. Aurora, 84 111. 157; Williams v. Whiting, 11 Mass. 430.</p> <p>Where the contrary does not appear a town will be presumed to have been incorporated under the general law of the state for the incorporation of towns, Brasil v. Kress, 55 Ind. 14; Centerville v. Woods, 57 Ind. 192; Bow v. Allens-toim, 34 N. H. 351; Londonderry y. Andover, 28 Vt. 416.</p> <p>As to the distinction between a town and a township, see Waltham v. Kemper, 55 III. 346; Bussell v. Steuben, 57 III. 35; Harris v. Schryrock, 82 III. 119; West Bend v. Munich, 52 Iowa 132; King y. Reed, 14 Vr. 190; Borough of Eraekville, 94 Pa. St. 56.</p> <p>A tax for township purposes may be legally collected on property in an incorporated town situated within such township, Tilford y. Douglass, 41 Ind. 580 ; see Lorillard v. Monroe, 11 N. Y. 392; Russell v. Dyer, 40 N. H. 173.— Bep.</p>

A testator, by his will, which was made in October, 1885, declared' that $4,000 of Paterson bonds “ nearing maturity,” belonged to his’ wife. Held: that the answer must be taken as true, and that the wife was entitled to recover. Bill for relief. On final hearing on bill and answer.

Where there is no decision of this court to the contrary, nor any statute •directing otherwise, the English practice must be followed, and therefore exceptions to an answer must be signed by counsel. Exceptions to answer.

<p>In the voluntary winding up of an incorporated savings bank, under the direction of the court, only those who were depositors when the proceedings were instituted are entitled to share in the surplus.</p> <p>Bill for relief. On final hearing.</p>

<p>Under a testamentary direction that after the death of the testator’s wife the residue of his estate “ shall be divided among my several children, share and share alike; and in the event of any of my said children dying before my said wife and leaving issue them surviving, then such issue shall be entitled to and receive their parent’s share, the same as said parent would receive were he or she then living,” the children of a son who died in testator’s lifetime, and before the making of the will, and before the death of the widow, were held entitled to their father’s share.</p> <p>Bill for construction of will.</p>

1. A testatrix, after directing the payment of her debts and funeral expenses, gave to one of her daughters the interest of one equal… Held: that complainant’s share, although evidently given in trust, is not subject to the trust of the residue, and consists of one-sixth of the whole estate, after the payments of the debts and expenses, for which the court may appoint a trustee; (2) that if the real estate can be equitably divided, complainant’s share thereof may be set…

<p>Filing an unverified bill in chancery for discovery of trust funds in the hands of an executrix-, and to follow such funds into certain lands claimed to have been bought by her testator with such funds, is not such a presentation of the -claim, under an order of limitation made by the orphans' court, as entitles complainants to participate with the creditors who have duly presented their claims in the division of the assets of the estate, which is insolvent, although the bill was filed before the expiration of the time limited by the order; and the defendant’s answer, which was not filed until after the expiration of the time SO limited, admitted the liability of the estate for part of the ■claim.</p> <p>Bill for relief. On final hearing upon bill and answer.</p>

<p>1. Where the will of a non-resident has never been proved in this state, his executors cannot be called to account here for their dealings with the estate.</p> <p>2. A bill, which prayed relief against all the executors of an estate and also against one of them individually as a mortgagee, with notice of the trust, of property bought with the money of the estate for some of the cestas que trustent under the will — Held, multifarious.</p> <p>Bill for relief. On general demurrers.</p>

1. One of three executors managed the affairs of the estate, under an agreement with all the beneficiaries that he should charge no commissions for his services ; should account and settle with them… Held: that he cannot be charged with interest on the intestate’s share. 2.

In 1875 lands were conveyed to “Peter Weiss and Kunigunda, his wife,” who is the complainant, and was married to Peter in 1872; she paid… Held: that complainant is entitled to a decree establishing her title to the whole of the property, on the ground that she paid all the consideration, and understood that under the deed she was to have the property in case she should survive Peter, and also on account of Peter’s fraud upon her in marrying her and inducing her to believe…

<p>1. It is not ground for demurrer that an assignee under an assignment for the benefit of creditors has not averred in his bill that he has given his bond and filed his inventory, and complied with all the requirements of the statute.</p> <p>2. Such assignee cannot recover, for the benefit of the creditors under the assignment, moneys which appear by his bill to have been due from and to have been paid by his assignor to the defendant, on a mere allegation that his assignor and the defendant may have been partners as to third persons in the transaction wherein such moneys were paid; for if there was such partnership, the complainant does not represent its creditors.</p> <p>Bill for relief. On general demurrer.</p>

<p>Complainant, who was a lime-burner, made a contract with the receiver of a railroad to remove the ashes &c. from a certain ash-pit where the locomotives dumped their ashes, for the ashes and cinders, which contract was to continue for a year. At the end of six months the assistant general superintendent of the company terminated the contract, not because it was considered disad-vantageouk to the company, but, as then stated, because of the jealousy of other lime-burners in the neighborhood. — Held, that complainant could recover the damages he had sustained from the breach of the contract.</p> <p>Bill for relief. On final hearing on pleadings and proofs.</p>

The title to certain lands in the city of Newark is vested in the city, if vested at all, merely in trust for and subject to use as a burial-ground forever. —Eeld, that such use is perpetual, and that the city authorities cannot, under ■ statutory authority, destroy it, and devote the lands to other purposes, for the ■original use is not subject to legislative revocation, and therefore the statute authorizing such destruction of the use is unconstitutional.

Upon the dissolution of a partnership between complainant and defendant, in 1877, they agreed that the latter should receive all the assets and settle the affairs of the firm, which he did, but never… Held: that the latter is entitled to an accounting, although defendant testifies that he has paid out more than he has received.

<p>.A clause in a will, “ The residue of my estate to be kept in reserve for further consideration in the way of charitable purposes in a liberal way, not to any particular creed or sect of religion,” was construed to be a gift of the residue to the executors by implication for such charitable purposes as they may think proper.</p> <p>Bill for construction of will. On final hearing on pleadings.</p>

<p>Pending a suit in partition, the defendant, the Long Dock Company, which was one of the tenants in common, gave a mortgage on its interest in the •premises, which were afterwards sold at the partition sale and conveyed to trustees for the benefit of all the original owners. The trustees subsequently sold and conveyed part of the property. Afterwards an agreement for a divi■sion of the rest was made between the Long Dock Company and the New Jersey Railroad and Transportation Company, which had acquired all the interest of the other owners. By that agreement it was stipulated that the costs of perfecting or protecting the title to any part of the premises should be ■borne by the parties in proportion to their respective interests, and that such proportion should be secured by a lien upon the property allotted in the divi•sion to the party by whom the same ought to be paid. Afterwards expense was incurred by complainant (which had succeeded to and acquired the rights •of the New Jersey Railroad and Transportation Company) in extinguishing a superior title to part of its allotment. — Held, that the lien of such expense •on defendant’s portion was superior to that of the mortgage.</p> <p>On bill for relief. On exceptions to master’s report.</p>

<p>A testator devised certain lands, in trust, for the benefit of his wife and five children for their lives, and, after the death of the surviving child, the trust to cease and the land be sold and the proceeds divided among the “ right heirs” of his children as tenants in common, the issue of any child to take their parent’s share — Held, that such grandchild had a vested remainder in the residuary devise, subject to open and let in any brother or sister. .</p> <p>Bill for relief. On exceptions to master’s report and application for instructions as to distribution of money in the hands of trustees.</p>

A testator ordered that his residuary estate (excepting two designated lots of land, as to which he gave his executor a discretionary power… Held: that the one-third of the residue, excepting the two lots, was personalty ; that the gift to Mary’s children was a vested remainder, and that the husbands of the two deceased daughters were entitled to those daughters’ shares of such personalty, and that the executor was not, under the law of 1881 (P. L. of 1881 p. ISO), which is…

<p>1. An assignee, under the statute regulating assignments for the benefit of ■creditors, may, in virtue of the power conferred upon him by the assignment, avoid alienations made by his assignor in fraud of his creditors, if the property so alienated is required for the payment of debts exhibited to the as-signee.</p> <p>2. Every material fact which it is necessary for a complainant to prove to •establish his right to the relief he asks, must be alleged with reasonable fullness and particularity.</p> <p>3. A suitor who seeks relief on the ground of fraud must state the facts ■which constitute the fraud, so that the person against whom relief is sought ■may know what he is called upon to answer.</p> <p>4. Courts of law and courts of equity have concurrent jurisdiction over •alienations made in fraud of creditors.</p> <p>5. Where there is both a legal and equitable remedy for the same cause of action, if the legal remedy is barred by lapse of time the equitable remedy will also be held to be barred.</p> <p>On demurrer.</p>

<p>In a case where incapacity is alleged, but no fraud is charged, the test is, Did the person whose act is brought in judgment possess sufficient ability, at the time he did the act, to understand, in a reasonable manner, the nature and effect of his act ? If he did, his act is valid.</p> <p>On final hearing on bill and answer and proofs taken in open court.</p>

1. While courts of equity have no authority to sit in judgment on the lawful acts of other tribunals, or to examine their acts to see whether they, in the exercise of their powers, have committed error or not, their power to annul a judgment or decree which has been procured by fraud is undoubted, whether such judgment or decree be the sentence of a tribunal standing above or below them. 2.

<p>A defendant cannot, by petition, compel a codefendant to produce and allow him to inspect an assignment of a judgment which such codefendant holds against him, for the purpose of preparing his answer.. The proper proceeding is by cross-bill.</p>

<p>1. To reform a written instrument, which is the foundation of a bill for specific performance, on the ground of mistake, the proof must be so full and clear as to leave no room for controversy.</p> <p>"2. It must appear that both parties intended, at the time the instrument was drawn, to have the alleged omission inserted.</p> <p>3. A party who pays his money upon a parol agreement to convey lands, and accepts a receipt therefor, which is the only writing between the parties, with the clear understanding that it does not contain a term or stipulation, which he thought was intended by the parol agreement, and which the other party expressly refused to insert, is not entitled to have such receipt reformed.</p>

After the court of chancery had appointed a receiver for an insolvent railroad corporation the petitioner began an action at law against the corporation to recover damages for personal injuries sustained through the corporation's negligence.

<p>A husband received $1,000 from his wife to invest for her, and paid her the Interest thereon for the first year. By his will and verbal admissions he recognized his indebtedness to her. By a subsequent will he provided for the payment of all his just debts, “if any,” and gave her $2,000, payable in one year after his death, and the interest on $4,000 during her lifetime, and stipulated that these gifts should be in lieu of her dower “or any other claim she may have against my estate.” — Held, (1) that the relation of the testator to his wife was that of a trustee; (2) that the statute of limitations did not run against her; (3) that the liability was not discharged by her general statements as to the motive of the transaction, or as to her having released her husband from liability; (4) that the testamentary gifts, having been accepted by her, the claim was thereby satisfied.</p>

A writ of assistance will not be awarded to a mortgagee who bought the premises under a foreclosure of her own mortgage, where the defendant, who is in possession, claims title, not only under the mortgagor, but also under a subsequently acquired title, which he insists is superior to the mortgagor’s, and although he was made a party to the foreclosure, and a decree pro eonfesso obtained against him, no issue was raised or litigated in the foreclosure suit as to his later…

<p>The defendant covenanted with complainant, who bought his retail butcher business, “ not to carry on the retail butcher business on his own account, or operate any butcher business except a wholesale butcher business, within the corporate limits of the city of Newark” during a period not yet expired. He afterward engaged in the retail grocery business, and then sold it to a third party, who employed defendant to take charge of the retail butcher business in connection with the grocery. Defendant did so, buying all the meats &c., and thereby injured complainant’s trade considerably. — Held, that he would-be enjoined from continuing the business.</p>

<p>A testator gave two notes to the defendants and also a second bond and mortgage on certain of his lands to secure the same debt, in which his wife joined. By his will he devised to her other unencumbered lands. After his death the first mortgage was foreclosed, the defendants being made parties therein. The sale left a deficiency due to the defendants on their mortgage.— Held, that the acts of 1881 and 1884 applied, and that the widow could restrain the defendants from selling the lands devised to her in order to satisfy the deficiency, until after they had complied with the statutory requirements by proceeding on the bond for the deficiency.</p>

<p>After giving his daughter Fanny $4,000 and also one-fourth of his residuary estate, a testator, by codicil, gave the interest on “ the money given to her, and so much of the principal as she may need and her circumstances may require from time to time,” with a gift of what might remain to her issue, or, in default of such issue, to the testator’s grandchildren living at the time of her death. By a subsequent codicil he appointed her one of his executors. She received the $4,000 and also one-fourth of the residue from her co-executor, whom she survived, and held both sums until her death. She had no issue. — Held, that both sums were in her hands as trustee, and that as there was no proof of any “ need ” of her having any of the principal during her lifetime, the testator’s surviving grandchildren were entitled thereto.</p>

Where a testator, by his will, gave to his widow the interest and profits of the residue of his estate, or so much thereof as she might require or desire for life, and provided that in case of her… Held: that he could not be required to aid in supporting himself. Bill for construction of will &c. On exceptions to master’s report.

<p>Note. — Ignorance of the law that requires all wills to be in writing, or Carelessness in attending to it at a time when the testator is conscious that his sickness is mortal, or aversion to being troubled about it, does not constitute the necessity that allows a nuncupative will to be made, Hans v. Palmer, SI Pa. St. 396 ; Erwin v. Hammer, 37 Ala. S96.</p> <p>Where the decedent had the capacity to execute a written will afterwards, probate was refused to nuncupative wills in the following cases on the ground that they were not made in extremis: Where the testatrix survived four days, Haus v. Palmer, SI Pa. St. S96; nine days, Yarnall’s Will, 4 Bawle ; two days, Boyer v. Frick, 4 Watts & Serg. 357; one day, when he died suddenly and unexpectedly, Werkheiser v. Werkheiser, 6 Walts & Serg. 184; six days, Prince v. Hadeton, SO Johns. SOS; one day, where the testator repeated substantially the alleged nuncupative declarations made a fortnight before, Sykes v. Sykes, 2 Slew. (Ala.) 364; see Ridley v. Coleman, 1 Sneed 616; thirty days, Ellington v. Dillard, 42 6a. 361; six days, Morgan v. Stevens, 78 111. 287; one day, O’Neill v. O'Neill, S3 Md. 569 ; one hour, Porters Appeal, 10 Pa. St. 254; two months, Jones v. Norton, 10 Tex. 120; five or six days, Reese v. Hawthorn, 10 Qrati. 548.</p> <p>In some cases, however, it has been held if the nuncupation be made at any time during the last illness, it is sufficient, although the testator might have reduced it to writing afterwards, before his death, Nolan v. Gardner, 7 Heisk. 215; Sampson v. Browning, 22 6a. 293; Page v. Page, 2 Rob. (Fa.) 424; Johnston v. Glasscock, 2 Ala. 218; Harrington v. Stees, 82 III. 50; and, a fortiori, where he had not the physical or mental capacity afterwards, Sadler v. Sadler, 60 Miss. 251, 255; see, also, Gwin v. Wright, 8 Humph. 639 ; Huse v. Brown, 8 Me. 167; Rouse v. Morris, 17 Serg. & R. 331; Corby’s Goods, 29 Eng. L. & Eg. 604 —Rep.</p>

<p>The orphans court ordered that money which had been advanced by an executrix to pay preferred claims against the estate, which was insolvent, should be repaid to her out of the assets. — Held, no error.</p> <p>Appeal from decree of Hunterdon orphans court.</p>

<p>The orphans court has jurisdiction to examine into the fairness of inventories by exceptions thereto. Where the record disclosed no ground for dismissing such exceptions, an order of that court refusing to dismiss was affirmed.</p> <p>Appeal from order of Hunterdon orphans court.</p>

<p>Where a trust is imposed upon executors by the will, the orphans court may, without notice, and on the passing of their intermediate account as trustees, correct an error in the allowance of commissions to them in a previous account as executors.</p> <p>Appeal from decree of Passaic orphans court.</p>

<p>Bonds and mortgages and promissory notes, in the usual form, given by a son to his father, are evidences of debts, and not of advancements, unless there be proof that they were intended to be advancements.</p> <p>Appeal from decretal order of Essex orphans court.</p>

1. Upon the death of a testamentary trustee, who dies intestate, his office is transmitted, so far as relates to personalty, to his administrator. 2. Such an administrator may settle the trust accounts in the orphans court. On appeal from a decree of the ordinary, whose opinion is reported in Bruere v. Guliek, 1I¡, Stew. Eq. 280.

This court, in its discretion, will refuse costs in this court to a complainant whose decree has been affirmed, when it appears that the costs of the suit have been exorbitantly increased by superfluous recitals and statements in the bill of complaint. On appeal from a decree advised by Vice-Chancellor Bird, who filed the following conclusions : John Gardner was elected sheriff in 1875.

1. The court, in cases of impertinence, ought, before expunging the matter alleged to be impertinent, to be especially clear that it is such as ought to be struck out of the record, for the reason that the error, on the one side, is irremediable, on the other, not. 2.

<p>1. A conveyance of lands, since the passage of the married woman’s act of 1852, to husband and wife, does not create a tenancy in common.</p> <p>2. That act endows the wife with the capacity, during the joint lives, to hold in her possession, as a single female, one-half the estate in common with her husband ; the right of survivorship still exists as at common law.</p> <p>3. To constitute a tenancy in common between husband and wife there must be in the conveyance an expression of an intention to do so.</p> <p>On appeal from a decree advised by 'Vice-Chancellor Van Fleet. An abstract of his opinion appears in 7 N. J. L. J. 11$.</p>

1. In. cases of implied trusts, relief is refused to parties who come into a court of equity after long acquiescence, and that not only in circumstances where the length of time would render it… Held: that her claim was then, under all the circumstances, barred by lapse of time. On appeal from a decree of the chancellor, whose opinion is reported in Hendrickson v. Hendrickson, 1J¡. Stew. Eq. 375.

Zinc ore was to be delivered upon the cars at Franklin, New Jersey, and was to be paid for at a price to be determined by the percentage of ZnO which it contained when delivered. Held: that these results were not safe indications of the amount of moisture in the ore when delivered at Franklin. On appeal from a decree advised by Vice-Chancellor Bird,, whose opinion is reported in Trotter v. Heekseher, 15 Stew. Eq. mi.

1. The bill averred that the defendant illegally maintained a dam, by means of which back-water was thrown upon the complainant’s mill-wheel above, and prayed an injunction against such maintenance. Held: that the issues thus presented were not within the jurisdiction of the court of chancery. 2.

Trotter was under a contract to deliver to a company in Pennsylvania certain quantities of ore each month, and receive monthly payments. Held: that a decree ordering that the company should, after the expiration of this time, receive, in addition to their regular monthly quotas, parts of the ore which had been detained by the manager, is erroneous.

<p>On appeal from a decree of the ordinary, whose opinion is reported in Dietz’s Case, Up Stew. Eq. 28Jp.</p>