Volume 48 — New Jersey Equity Reports

<p>Final hearing on bill, answers and proofs.</p>

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

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

<p>1. The claims of laborers for services to a corporation which has been declared to be insolvent, are not entitled to precedence in payment over liens-acquired by judgment, execution and levy thereunder, or by distress for rent, which antedate the time which the court adjudges to be the time of the corporation’s insolvency.</p> <p>2. Such time is when the court examines into the existing condition of the-corporation’s affairs. The court will not undertake to investigate the financial ability of the company at previous periods.</p>

<p>On bill, answers, replications and proofs.</p>

<p>On final hearing on bill, answer and proofs taken orally.</p>

<p>1. The title to all property belonging to a county is by statute vested in its 'board of chosen freeholders.</p> <p>2. The contract, arising by implication of law, from a deposit of money in a bank is, that the bank will, whenever required, pay out the money in such sums and to such persons as the depositor shall designate by his checks.</p> <p>3. Even when it is known that the money deposited is held by the depositor as a trustee, the bank is bound to presume, in the absence of knowledge to the contrary, that a check drawn by the depositor against the money has been drawn by him in the proper discharge of his duty as trustee, .and to pay the ■check accordingly.</p> <p>4. When the jurisdiction of this court is disputed on the ground that a remedy at law exists to justify the court in declining jurisdiction, it must appear that the remedy at law is neither doubtful nor obscure; also, that it will correct the whole mischief and secure to the person asking relief his whole right, in a perfect manner.</p> <p>5. A mandamus never issues to enforce an equitable right. Two things must concur to authorize its issue — a specific legal right and the absence of any •other effectual legal remedy.</p>

<p>1. To show delivery there must be proof of that which evinces an intention 'on the part of the grantor to part presently and unconditionally with the deed, and, of course, to pass the title to the land at once according to the terms of the deed.</p> <p>2. Possession by the grantee of a deed, fully executed, is regarded as strong evidence of delivery, while on the other hand, where the deed is found in the possession of the grantor, his possession is regarded as furnishing equally strong evidence that it has not been delivered.</p> <p>, 3. Delivery of a deed to a third person for the grantee, where the grantor parts with all control over the deed, makes the deed effectual from the instant of such delivery, even though the grantee is ignorant of its existence, for the law will presume, if nothing appears to the contrary, that a man will accept what is for his benefit.</p> <p>'' 4. Evidence, to be worthy of credit, must not only proceed from a credible source, but must, in addition, be credible in itself.</p>

<p>1. In 1701 the board of proprietors of the eastern division of New Jersey issued a patent which is called the West patent, in which a portion at least of the lands therein intended to be conveyed were described by metes and bounds, being sixteen chains in width north and south, and sixty-four chains in length east and west, containing ninety acres, and including two sedge banks lying opposite thereto in Shark river. In 1800 one Wardell executed and delivered a deed to one White for a tract of land bounded by Shark river on the north and the Atlantic ocean on the east, with other and further descriptions including the said ninety acres. The eastern boundary of the said ninety acres, as surveyed, did not include all the land to the ocean, whatever may have been intended by the grantors and grantees in the use of the words at the niouth of the Shark and on the Atlantic ocean. In 1879 the defendant surveyed and took up from the board of proprietors a portion of the land which was not included in the said survey of the ninety acres, and claims title thereto. The complainant shows an adverse possession by itself, and those under whom it holds, ever since the execution of the said Wardell deed. Under the circumstances of the case upon a bill to quiet title — Held, that equity will protect the complainant against the claim of the defendant.</p> <p>2. Although it is a fundamental rule that the actual beginning corner must ■control in locating oiiginal surveys, yet, when a survey is made upon paper, and not upon the ground, the intention of the parties making the survey should control, which intention is to be ascertained by all the facts and circumstances connected with the case.</p>

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

<p>■ A lessee covenanted “ that all improvements of the building shall belong to the landlord at the expiration of the term,” and put up shelves which, besides being nailed to boards or cleats which were nailed to the wall, rested on counters which were not in any way fastened to the wall or floor; and put in a •■’furnace, with hot-air flues extending to holes cut in the flooi-, for the purpose •of heating the store-room which he occupied with his goods; he put up large ■awnings over the front windows. — Held, that these were all improvements, and •embraced in the covenant referred to, and passed to the landlord, who is entitled to an injunction preventing their removal by the assignee of the lessee.</p>

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

<p>Where the wife of a devisee of real estate takes care of the testator during his last sickness, and the testator, desiring to compensate her without altering his will, obtains a promise from the devisee that he will convey such devised-real estate to his wife, after the decease of the testator, it will be decreed that such devisee takes said real estate in trust, and his conveyance thereof to his. wife will be upheld, in equity, against the judgment creditors of the husband, devisee.</p>

<p>In the matter of William H. Bannard. Proceedings in contempt for breach of injunction;</p>

<p>1. A devise of land “to be valued at $90 per acre” amounts merely to giving to the devisee the option of purchasing from the residuary beneficiaries at the price named.</p> <p>2. Testator devised certain tracts of land to his sons and son-in-law, “ to be valued at $90 per acre.” He then directed that his executors, who were the three devisees, should each pay an annuity of $70 to the widow in lieu of dower. H'eld, that the devisees took the land charged with the annuity.</p> <p>3. The charge on the land in such case is not affected by the fact that, sufficient personal estate was left to pay the annuity.</p>

<p>1. A court of equity will not, under the guise of a bill for specific performance, entertain a suit for compensation or damages which might be recovered at law.</p> <p>2. But where a vendee, by contract, of real estate comes into this court in good faith asking the specific performance of his contract, and with a reasonable expectation, that the vendor is able to perform it, and it afterwards appears that the defendant is unable to perform, either in whole or in part, then this •court may, and, when justice requires, will, give relief by way of compensation in money in lieu of specific performance.</p> <p>3. Also, where a vendee by parol contract has so far and in such manner performed the contract on his part that he cannot be restored to his former position and has no adequate remedy at law, this court will give him relief by way of compensation in money.</p> <p>4. Five heirs at law of a common ancestor, one of whom was the complainant, made partition among themselves of his real estate by mutual releases ; •one parcel was subject to a lease for years executed by the ancestor to one of the heirs jointly with a third party. This parcel, so under lease, was allotted to •the complainant. The heir (one of the defendants, who was co-lessee of this ■parcel), promised the complainant at the time of the partition that he would •procure from his partner a release or surrender of the lease, and stated that -his co-lessee had agreed to join him therein, and complainant accepted the share on the strength of such promise. On bill against the two lessees for •specific performance of the agreement to surrender, it appeared that the defend•ant heir was not authorized by his co-lessee to make such contract. — Held, ■that the complainant was entitled to relief against the promising defendant by \way of compensation in money.</p>

<p>Final hearing on bill, answer and proofs. See 18 Stew. Eq. 388.</p>

<p>i 1. The complainant was sworn and examined as a witness in his own behalf and died before the defendant was sworn, but after she had time and opportunity to be sworn. The action was revived by complainant’s executors, and then the defendant was sworn in her own behalf and gave evidence before the master, subject to objection, of transactions with, and statements by, the decedent. — -Held, such evidence was incompetent.'</p> <p>2. Complainant’s bill was founded on a bond and mortgage executed by the defendants to the complainant’s testator, and alleged the execution and delivery on the day of their date, prayed answer under oath, without any interrogatory. Defendants, by their answer, admitted the execution, but denied the delivery on the day of execution, and alleged that over three years afterwards complainant procured their delivery by fraud. — Held, that this, allegation was new matter by way of confession and avoidance, not in response to the allegation of the bill, and was not proven by the affidavits annexed to the answer.</p> <p>3. A supplemental answer set up that the decedent by his will, read in connection with the circumstances, had treated certain charges on his book against one of the defendants, who was his daughter, as advances to her and had forgiven them. — Held, that it did not so appear, but the contrary.</p>

<p>Where monumental calls in the description in a deed are fully identified' and are sufficient in themselves to show the boundaries, the given courses and distances may be entirely disregarded.</p>

<p>1. A receiver appointed upon supplemental proceedings upon execution has by virtue of such appointment no interest in real estate held in trust for the judgment debtor.</p> <p>2. A transfer of property made without consideration, and for the purpose of enabling the transferrer thereafter to commit a tort with impunity, is fraudulent and void as against a creditor by judgment founded on a tort so committed.</p>

<p>"When a fund is held in trust for the benefit of one person for life, and to go to another in remainder, and a loss of a part of the fund occurs, arising out of insufficient security of a particular investment, such loss is to be apportioned between the tenant for life and remainderman in the proportion which the principal sum involved in the insufficient security bears to the interest due upon it at the time when the security is realized upon and the amount of the loss determined.</p>

<p>Complainants, as executors and trustees, held certain shares of stock in an. incorporated company; defendants held certain other shares therein, which, added to those held by complainants, constituted a majority of all the shares. Complainants on the one part and defendants on the other entered into a contract by which complainants agreed to execute, and in pursuance thereof did execute, a proxy, irrevocable for five years, to defendants to vote at all stockholders’ meetings upon the complainants’ shares; and defendants, in consideration thereof, agreed to so vote said shares as that one of the complainants should be continuously employed as manager of the corporation, at a salary of §2,500 a year.- — -Held, (1) the agreement is void — -first, because against public policy; and, second, because a breach of trust by complainants. (2) That complainants are entitled to relief against the defendants and an injunction against the use of the proxy, notwithstanding their position in pari delicto with defendants.</p>

<p>1. Qucere. Whether a voluntary conveyance, by one who had assumed the-payment of a mortgage on other property, the title of which he had previously held and conveyed, made before proceedings to foreclose the mortgage, and for a decree for deficiency against him under the law as it stood in 1877, will be-presumed fraudulent as against one owning the mortgage ?</p> <p>2. Delay by complainant in the enforcement of remedies, involving a lapse of time during which conditions had been changed, which cannot be reinstated, money had been expended in improvement of property attacked, parties ands witnesses had died, and indemnity imperiled or lost, is ground for a court of equity to withhold relief.</p> <p>3. A complainant who has, under an execution, purchased property at a grossly inadequate price, under circumstances which gave him an unfair-advantage, and whose conduct has been such as to render it unjust to grant him relief, cannot successfully invoke the aid of a. court of equity to confirm-his title.</p> <p>4. Public judicial sales should be conducted so as to produce, not only the-money due on the execution, but as much as possible for the parties in interest, and to that end full, free and fair competition should be secured.</p> <p>5. A court of equity does not extend its aid to the enforcement of stale or inequitable demands, and should not willingly give encouragement to the-unearthing of neglected litigation for purposes of speculation.</p>

<p>1. Defendant sold his home and household goods, and plaintiff (his wife) went to her sister’s by his directions, and with his promise to come there. He went to see his sister-in-law, but did not ask to see plaintiff. He went to live with a man whose wife was on unfriendly terms with plaintiff, and did not call to see plaintiff, though he daily passed where she lived. On a former occasion he had left her, and written that he was not coming back, and had begun, but failed to prosecute, two suits for divorce. After suit by plaintiff for maintenance, he went to another city and opened a boarding-house in partnership with a woman with whom plaintiff was on unfriendly terms. Held, that there was such an abandonment by defendant, without justifiable cause, as to entitle plaintiff to sue for maintenance and support under the Divorce act.</p> <p>2. A request by defendant, after such suit is commenced, that plaintiff will come and live with him at the boarding-house, and other requests, apparently insincere, are not such' offers to perform his marital duties as will release him from liability.</p>

<p>On bill, answer, replication and proofs taken before a master.</p>

On the 20th of May, 1889, the mayor and council of the city of Bayonne, as parties of the first part, entered into a contract with… Held: November 5th, 1889, report was made by Emmett Smith, the city surveyor, that Munn & Phelan, contractors for building sewer in Avenue C and West Fifty-second street, had furnished material and performed work under said contract to the amount, less percentage reserved and former certificate, of $2,000, which report was received and a…

<p>1. Under the supplement to the act which regulates assignments for the benefit of creditors, approved April 12th, 1888 (P. L. of 1888 p. 4%2), the fraud or irregularity necessary to authorize the orphans court to direct the giving of notice may be shown ex parte by affidavit.</p> <p>2. When the claim of a creditor is excepted to, such creditor cannot object that the exceptant has no right to prosecute the suit, because, in consideration of a dividend advanced to him, by the assignee, he agreed with the assignee to waive Ms right to except to the claims of other creditors. Such waiver was solely for the protection of the assignee.</p> <p>3. Where a creditor, having a. claim for usurious interest, deliberately falsifies the statement of it, so that it appears to be lawful, and thus presents it to the assignee, he perpetrates a fraud even though the claim presented be not in excess of the usurious claim.</p> <p>4. The mere fabrication of written evidence to support a just and lawful claim, does not destroy the validity of the claim.</p>

<p>X. Where there is no husband or widow, administration must be granted to-the next of kin of the intestate, if any of them are fit and competent and will' accept.</p> <p>2. Where one of several next of kin applies for administration, the surrogate should not, in any case, grant administration until proof has been made that ten days’ notice of the application has been given to the others.</p>

<p>On appeal from a decree of the orphans court of Essex county.</p>

<p>1. An owner of land abutting on a street whose road-bed is being paved 'in an imperfect manner by a contractor with the city, has a standing in equity "to restrain the common council from paying for such work in cases in which ■such land-owner will be assessed in part for such cost.</p> <p>2. The sole relief in such case is an injunction restraining the council from paying for such imperfect work before a trial at law.</p> <p>3. The bill should be for the other land-owners similarly situated as for •complainant.</p> <p>4. The bill should show that the common council unreasonably refused to •contest the bill of contractor.</p>

v. Packard, who filed the following-conclusions : The complainant, claiming to be duly organized under the General Railroad law, laid out a railroad along the margin of a stretch of salt marsh which skirts New York bay, within the corporate limits of the city of Bayonne. In so doing it crossed lands of the defendant, of which it proposed to take about two-acres.

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 1 Dick. Ch. Rep. 173.</p>

v. Lorillard, who filed the following conclusions: Rachel Van Buskirk, one of the defendants, was the owner of a large tract of land. She executed and delivered a lease for about twenty-five acres of it to the Union Brick and Tile Company, which company filed the bill of complaint in this cause, This company became insolvent, and a receiver was appointed to take charge of its assets, through whom title was made to the present complainant.

The syllabus of the opinion rendered in the court of chancery is as follows; 1. Held: that although the mortgagee did not authorize the announcement so made at the sale, yet relief could be afforded either by a re-sale, or by permitting redemption on equitable terms, and the latter method was adopted in this case.

<p>On appeal from a decree of the chancellor, adjudging that the complainants’ mortgage is paid and should be canceled.</p>

<p>On appeal from a decree of the chancellor reported in Cochran v. Elwell, 1 Dick. Ch. Rep. 333.</p>

<p>On appeal from a decree of the chancellor, reported in Berdan v. The Trustees &c., 2 Dick. Ch. Rep. 8.</p>

<p>On appeal from a decree of the chancellor, reported in Tulane v. Clifton, 2 Dick. Ch. Rep. 351.</p>

<p>On appeal from an order of the chancellor, whose opinion is •reported in Rowbotham v. Jones, 2 Dick. Ch. Rep. 337.</p>

<p>On appeal from a decree advised by Vice-Chancellor Van Eleet, whose opinion is reported in Mayo v. Newhoff, 2 Dick. Ch. Rep. 31.</p>

<p>1. A father bequeathed to his son Jacob one-third of the residue of his estate, amounting to §518,000, to be paid to Jacob by his executor at such times, and in such sums, as the executor should deem most for the son’s good, directing that, if the son should not make a proper use of “ his money,” the executor should pay him no more than sufficient to board and clothe him in a decent and respectable manner, and providing that if Jacob should die before he should receive the whole of his money, without leaving lawful issue, the-balance should fall into the residue of his estate, but if Jacob should leave lawful issue that the balance should be paid to them in equal shares.</p> <p>2. The person named as executor in the will died after he had paid Jacob-portions of the income of the legacy, but none of the principal. — Held, (1) that the power bestowed was not given to the person appointed executor as-an individual, but ratione officii, and survived him; (2) that the power -was imperative, partaking of the character of a trust to be executed ; (3) that it required that sufficient portions of the legacy should be paid to Jacob to test the-propriety of paying the balance of the legacy to him; (4) that the payments-heretofore made to Jacob-have not been sufficiently large to test the propriety of paying him the balance, and that the proofs are not sufficient to satisfy the chancellor that it is proper to pay it; (5) that the chancellor will execute the-power, and, in so doing, will appoint a trustee to hold the fund for disposal by its direction; (6) that such trustee will be directed to now pay §5,000 to Jacob, and to invest the remainder of the fund; (?) that after Jacob shall have had the §5,000 long enough to test his ability to manage it and his strength to-withstand the temptations to which its possession will expose him, he may apply for direction that the remainder of the legacy be paid to him.</p>

<p>On appeal from determination of receiver. ■</p>

<p>On order to show cause why injunction shall not issue.</p>

<p>In a suit by a husband against his wife for divorce it was proved that there were frequent and clandestine meetings between the wife and her alleged paramour. And the husband produced more than ninety letters, which were in the handwriting of the alleged paramour, addressed to the wife, written within a period of about fourteen months, during which the clandestine meetings were-had, and which, by their volume and reference to trivial passing events, gave internal evidence of their authenticity as part of a correspondence with the wife. He, in addition, testified that he had found the letters, respectively, either in his wife’s pocketbook or in her locked trunk, to which he did not have access. The Wife, called as a witness in her own behalf, and advised by competent counsel, failed to deny knowledge of the letters, or to contradict any of her husband’s statements with reference t'o them. — Held, that the statements contained in such letters, so far as they allege acts and mental conditions of the wife, will be regarded as admissions by her.</p>

<p>On orders to show cause why injunction shall not issue to stay entry upon lands.</p>

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

<p>■ The statute of 1870, giving the court of chancery jurisdiction to settle the title to lands in certain cases, does not give authority to settle the title to an incorporeal hereditament claimed by the complainant to exist in lands held in possession by the defendant. i</p>

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

<p>1. Contracts in restraint-of the right to labor are invalid unless the restraint they impose is partial and reasonable.</p> <p>2. And the test to be applied in deciding whether the restraint is reasonable or not, is to consider whether it 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.</p> <p>3. The ordinary judicial remedy for a breach of contract is an action at law, and in cases where that remedy will fully answer the purposes of justice the law courts have exclusive jurisdiction.</p> <p>4. A court of chancery can give no remedy for a breach of contract, except in cases where the remedy at law will not answer the purposes of justice, but is plainly inadequate.</p> <p>5. And this rule must control the action of the court at all stages of a cause, regardless of whether relief by injunction be asked for at the commencement of the suit or on final hearing.</p>

<p>1. Where a railroad corporation, formed under the General Railroad law, locates its route so that its line crosses the route of another railroad, the law gives it the right to decide for itself whether it will cross such other road at grade or otherwise. Its right to cross' at grade is subject, to but two limitations — first, it shall not cross at a less angle than twenty degrees; and, second, it shall not cross in such manner as will destroy the reasonably fair enjoyment of the. franchises of the road whose route is crossed.</p> <p>2. The verdict of the jury that tries an appeal from the award of commissioners, fixes finally and conclusively the sum which, in that particular case, must be regarded as just compensation, so far as may be necessary to confer upon the condemning company the right, on the payment of the money, to appropriate the property condemned.</p> <p>3. An appeal by a land-owner, from the award of commissioners, operates as. a supersedeas, and deprives the condemning company of the right to appropriate the land until the appeal has been determined and the sum awarded by the j ury is either paid or tendered.</p>

<p>, On the hearing on a bill for an account the only evidence, as a general rule, material or competent is such as goes to prove or disprove the complainant’s right to an account; evidence as to items at that stage of the cause is’ inadmissible, but where the account consists of but a few items and they are all fully proved by the evidence submitted on the principal question, there the court may decide by the same decree that the complainant is entitled to an account,, and also the amount that he is entitled to recover.</p>

<p>1. Where money has been given, or goods, for the purpose of being converted into money, by a community at large to different unincorporated associations of individuals for the purpose of purchasing land and erecting a hall thereon for vthe common benefit of such association, which moneys are placed in the hands -of certain members of said association for that purpose, who purchased latid ' with buildings thereon, taking the title in trust for such associations, after which all of said associations become incorporated according to law for the purpose of more effectually protecting and carrying out the purposes and interests of such association, such corporation has the right to demand and receive from the persons so holding the title a conveyance thereof to it without. any formal request from the different associations.</p> <p>2. By no other method could the individual rights of the individual members of said association be fixed and secured.</p> <p>3. Such corporation, and not the different assemblies, has the right to take such title, and through it alone can the moneys so given and the title so acquired be managed for the benefit of all individuals who are or may become members of such association.</p>

<p>1. When a party claims by his bill that he has been acting as trustee or . agent, and, as such, is entitled to an account with his cestui que trust or principal, it is his duty to present with his bill his account, and if he fails to do so it is proper for the court, after the taking of testimony, and upon the hearing, when a reference to á master is asked for, to suspend the hearing and require the complainant to make and present such account.</p> <p>2. A party who is guilty of great delay in presenting his accounts, or of , negligence in keeping them, will not be heard with favor; yet, great liberality will be extended where the transactions relate to the family interest of both . parties. . ,</p> <p>3. Where the statement of an account shows upon the face of it such great 1 uncertainty that the court finds it impossible to come to a fair, just conclusion as to the liability of the different parties, an account will not be ordered.</p> <p>4. Where the mortgagor asks to redeem, the burden is upon him; unless he shows that the mortgagee has been in possession.</p> <p>5. Where it appears that the mortgagee has been in possession, and he is called upon to account for the rents and profits and he fails to do so, his'mortgage will be declared satisfied.</p> <p>6. When a bill has been filed for an account both parties are actors.</p>

<p>On final hearing.</p>

<p>1. Where two persons are interested in the promotion of an enterprise and one of them agrees to furnish money and the other to expend it for the common benefit, the latter is 'bound to account for his disbursements and is liable-for that which has not been properly expended.</p> <p>2. If, in the performance of his undertaking, he is guilty of negligence, to overcome which requires further disbursements, he is not entitled to retain? such disbursements.</p> <p>3. Under such circumstances the agent is responsible-to the principal for his-misconduct or negligence.</p> <p>4. Where one of two or more persons engaged in establishing a business fertile common welfare performs a particular part thereof, he is not entitled to-compensation therefor without special agreement.</p>

<p>Final hearing on bill, answer and proofs.</p>

<p>1. O. executed and delivered a deed of real estate to McC., who leased the. premises to plaintiff for a term of five years. McC. died, and his administrator, as agent for his heirs, collected rents thereafter accruing. He informed' O. that he was about to collect the rents, and she made no objections thereto, but admitted the execution of the deed, and that the title was in MeC. and heirs. The agent informed plaintiff of her statements, and he paid the rent relying thereon. The heirs paid taxes, and repaired the premises, and exercised exclusive ownership, to which O. made no objection. O. afterwards. ¡recovered the premises in ejectment on the ground that McC. had fraudulently procured the deed from her, and sued plaintiff for mesie profits, recovering a verdict. — Held, that her conduct constituted an equitable estoppel; and the tenant, on assigning to her his claim to recover the rent from the executor and heirs, would be entitled to an injunction to restrain the entry of judgment on the verdict.</p> <p>2. The fact that in making such admission the owner did not intend to mislead the tenant, will not defeat the equitable estoppel thus arising.</p> <p>3. The fact that the estoppel was pleaded in the action for mesne profits, and that evidence thereof was excluded, was not an adjudication that the estoppel did not exist, but only that it was not available in an action at law.</p> <p>4. Where offers of proof of an equitable estoppel in a law action are excluded upon objection by plaintiff, he cannot, in a suit in equity by defendant setting up the facts constituting such estoppel as a basis for affirmative relief, object that the ruling excluding the evidence should first have been reviewed by motion for new trial, or by writ of error.</p>

<p>1. Where the owners of land dedicate a street adjacent thereto, and' “cove-nant and agree that said street shall forever hereafter be kept open for the use-of” such grantors, their heirs and assigns, their grantees have an appurtenant right of way in such street which cannot be impaired by legislation allowing; a railroad company to occupy it, except on the condition of making compensation.</p> <p>2. .A municipality cannot enlarge the rights of a railroad company by giving-it terminal rights in a street where, by legislative grant, it is confined to a-mere right of passage.</p>

<p>1. Where a hill, in its averments, sets forth facts sufficient to show that the complainant is entitled to relief as an administrator, or that the defendant is liable as such, it is not necessary that either should be so styled in the process, or in the commencement of the bill, or in the prayer for process.</p> <p>2. The privilege of professional secrecy is not confined to the knowledge derived by counsel from communications made to him by, or in conference with, the client, but extends to information obtained from documents submitted for his inspection or custody.</p> <p>3. If the communication, or conference, between client and counsel is to devise means by which a crime is to be committed, in which the attorney takes an active part, there is no privilege — he ceases to be counsel and becomes par_ ¡Sleeps crimmis; if he takes no part, there is no professional privilege, because it cannot be a solicitor’s business to advise in furtherance of a criminal object.</p> <p>4. The contriving of a crime or a fraud is no part of the professional occupation of an attorney or solicitor. In order that the rule of professional privilege may apply, there must be both professional employment and professional confidence. If the client has a criminal or fraudulent object in view in his communication with his counsel, one of those elements must necessarily be absent. If the object is avowed, the client does not consult his adviser professionally ; if it is not disclosed, he reposes no confidence.</p> <p>'5. In a civil suit the first test as to whether the communication involved a purpose which was or was not tainted with fraud, is the issue as made by the pleadings in the cause.</p> <p>G. A party to a suit is not a competent witness, under the act of 1880, to testify adversely to another party suing in a representative capacity, as to a transaction of the deceased with a person other than the witness, in which the witness and such person are interested, although such interests are divisible.</p> <p>7. If the representative in such action testifies, in his own behalf, to any transactions of the deceased with the witness or another, which are relevant to the relief in the action, the other party may be a witness, in his own behalf, to all transactions or statements of the deceased which are pertinent to his case.</p> <p>8. To constitute a valid gift inter vivos, there must be such a transfer of the subject-matter as will pass the donor’s title at once to the donee, absolutely and irrevocably divesting the former of, and investing the latter with, all of the donor’s right or title therein, and control and dominion thereof.</p> <p>9. The actual delivery of negotiable bonds, with words or acts indicating a present absolute gift, constitutes a valid gift inter vivos.</p> <p>10. In this state the delivery of a certificate of stock without actual transfer or a written assignment or power to transfer, although accompanied with words of gift, does not constitute a valid gift inter vivos.</p> <p>11. This court has jurisdiction to entertain a suit by an administrator against a co-administrator, when the defendant is charged with misconduct as to the assets of the estate, which jeopardizes the rights of those interested therein.</p>

<p>1. Defendant, having purchased certain hotel property for §100,000, signed! a contract to divide with complainant the net profits arising from the sale-thereof, in consideration of the latter’s services in purchasing the property, and his giving his undivided attention to its sale. A portion of the land was-plotted, and sold for §55,400. A part of the hotel was moved, mortgaged for §60,000, and run by defendant through the- summer. The other part was-leased, with privilege of purchase. For about a year complainant gave his-undivided attention to superintending the changes, and in trying to effect sales,, when friendly relations were ruptured. — Held., that since defendant had apparently been reimbursed his outlay, complainant was entitled to an account from him, and the fact that - complainant had had little success in effecting sales was immaterial.</p> <p>2. Such contract was a sufficient memorandum to satisfy the statute of' frauds.</p> <p>3. “Profits” do not necessarily imply money, but may consist of unsold portions of the property.</p> <p>4. Complainant executed an assignment of his interest in such contract, wherein he fully recited the rights of the parties thereunder. — Held, that am acceptance by defendant of notice of such assignment,' written on the back thereof, estopped him from denying the- recitals therein, when the assigneehad acted upon them.</p>

<p>1. The title of the owner of lands abutting a turnpike road constructed over :a public highway runs to the middle of the road, and the construction of a toll-gatekeeper’s house within the lines of the highway on such owner’s half, ■without his consent, is the imposition of an additional servitude which will be •.restrained.</p> <p>Perkins v. Moorestown and Camden Turnpike Co.</p> <p>2. An equitable estoppel is not raised in case of such an erection unless it appears that the landowner has done some act or made some representation, or, by his silence, assumed a position as to his rights inconsistent with his present claim, and that the company, misled as to their respective rights-by such conduct of the owner, has expended money on the work, so that it would be a fraud on it if he is permitted to maintain his legal rights; nor were both parties have equal opportunities of knowledge and both act in-ignorance of the true state of the case; nor where the owner does not know that the land belongs to him and not to the company.</p> <p>3. An injunction will.not issue to restrain the maintenance of a turnpike gate over a highway, even if unauthorized by law, unless it appears that the complainant suffers therefrom some special injury not sustained by the publicu.</p>

<p>On creditor’s bill.</p>

<p>On bill, answers, replication and proofs taken in open court.</p>

<p>A bill for partition of lands, filed by a recent grantee of a part thereof, without notice that another bill for the same purpose, filed seventeen years 'before, was still pending, will not be dismissed where such prior bill, by reason •of conveyances to other parties, will not justify the making of a decree, and it appears that under the new bill the interests of all parties can be speedily adjusted, the costs under the first bill will be settled, and the cause will proveed under the second bill.</p>

<p>1. The blending of the residue of the real and personal estate in the residuary clause of a will after pecuniary legacies, implies an intention on the part of testator to charge the legacies on such real estate, if the personal estate is not sufficient, and this implication will prevail unless such construction is restrained or avoided by other words or provisions in the will.</p> <p>2. The rule obtains whether interests in lands have already been given by the will or not.</p> <p>3. That testator must have known the personal property to be insufficient is a circumstance to be considered in ascertaining his intention to charge legacies on land, but is not enough, alone to effect such charge.</p> <p>4. The facts that the legatees are of the blood of the testator, and that no •other provision is made for them, are also indicative of an intention to charge their legacies on land not specifically devised, when the personal estate is insufficient.</p>

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

<p>1. While a trust in lands, created by parol, must, in an attempt to enforce-the trust, be manifested by writing duly signed, it is competent, after the trust has been terminated, by a conveyance of the property by the trustee, to prove the trust by parol evidence.</p> <p>2. The true consideration of a deed may be shown by parol evidence, though, it vary from that expressed.</p>

<p>1. Desertion cannot be considered as obstinate on the part of one, when the separation is acquiesced in by, and entirely satisfactory to, the other, who neither entertains nor manifests any desire that the separation, nor the causes which brought it about, should cease.</p> <p>2. A wife who is prosecuting an action against her husband for divorce for alleged adultery, cannot maintain that the separation, pending such suit, is obstinate on the part of the husband.</p>

<p>1. A complainant cannot successfully prosecute proceedings against a defendant for' contempt for not obeying the decree of the court for the specific performance of an agreement to purchase lands, where it appears that he himself has not performed the acts required of him by said decree.</p> <p>2. Injunctions issue under Rules 120 and 130 on filing in the clerk’s office the determination of an injunction master or vice-chancellor advising the same.</p> <p>3. An order to show cause why a party be not committed for contempt is to be filed, with the affidavits on which it is founded, as soon as possible, with the clerk of the court, and must before further proceedings are had be actually signed by the chancellor.</p>

<p>1. Where the beneficiaries under a will, who were also debtors to the estate, met together, three of them being executors of the will, and agreed upon and ■stated their respective indebtedness to the estate and the differences between them, and their respective shares in the estate, and afterwards acted upon their ■agreement, without questioning it, for fifteen years and until the particulars of the settlement were forgotten — Held, that they were severally bound by the agreement in absence of clear evidence of fraud, accident or mistake entering into it.</p> <p>2. Investments, contrary to the requirements of the testator’s will, upon1 mere personal security, are at the risk of the trustees, who must personally answer for any loss that may result from them.</p> <p>3. In an executor’s account the burden of proving items of discharge is upon-the accountant.</p> <p>4. When an executor has neglected to keep accounts and has failed to make-investments according to the direction of the will and as the law requires, and, by his negligence, has involved the estate in litigation, he will not be allowed commissions.</p>

<p>On appeal from decree of Burlington orphans court.</p>

<p>1. The expression of a wish or desire on the part of a testator, accompanying an absolute devise or bequest, that a particular application be made of the • whole or a definite part of the property bequeathed or devised, is obligatory and creates a trust, unless, from the context, it clearly appears that the first taker is intended to have discretionary power to control or defeat the desire • expressed.</p> <p>2. One Vinot, by holographic will, bequeathed §2,000 to Francoise Cuaz. Perolin and §20,000 to Charles D’Assier, absolutely. Later in the will he-disposed of the residue of his estate as follows: “ to my beloved wife Margaret Vinot I give the Balance of my Personal and real Estate to dispose of it as she will Elect I would however recomand to her to increase the fund of the • first Prysbiterian church of Mendham New Jersey to double the amount set apart in this instrument, and at her JPlaisure if My Wife feel dispose to do so but' it is not obligatory Also to increase the donation to Francoise Cuaz Perolin of' Two thousand dollars §2,000 in the Events of said Francoise Cuaz Perolinremained with my Mother to the End of her life and this gifth of my Wife to • be left to her when my Wife has departed this life so as to make her part of my Estate equal or of the same Amount as that left by me in this my last will' to charles ITAssier, in this my last will and testament.” The italicized words. were plainly interlined after the will was originally drawn. Held, that a< trust was created in favor of Erancoise Cuaz Perolin to the amount of §18,000, payable to her upon the death of both the testator’s mother and wife.</p> <p>3. Interest upon the §18,000 is to be calculated from the date of the death of the testator’s mother, she having survived the wife, and more than a year having expired since the testator’s death.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Pironi v. Corrigan, 2 Dick. Ch. Rep. 135.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 2 Dick. Ch. Rep. 86.</p>

<p>On appeal from a decree advised by W. B. Williams, advisory master, in Hudson County National Bank v. Brock.</p>

Newhoff, 2 Dick. Ch. Rep. 31.* The following facts appear by statements in the bill: On November 1st, 1854, the Third Presbyterian Church of Newark leased to Stephen Ford and Thomas Maplesden a lot on Broad street, in Newark, of forty-one and one-half feet in width by one hundred and sixty-six feet in depth, for a term running to May 1st, 1868.

<p>On appeal from an order advised by Vice-Chancellor Van Fleet, whose opinion is reported in Board of Chosen Freeholders &c. v. Newark City National Bank et al., 3 Dick. Ch. Rep. 51.</p>

Ou appeal from a decree advised by Vice-Chancellor Bird, as follows: This cause coming on to be heard upon bill, answer, replication and proofs, in the presence of Frederick W. Leonard, of ■counsel with the complainant, and William H. Conover, of counsel with the defendant, and the pleadings having been read and the proofs heard and considered, and the arguments of counsel heard and considered, and it satisfactorily appearing to the court that by virtue of an agreement in…