Volume 50 — New Jersey Equity Reports

<p>1. Where the owner of land, in conveying a portion of it by deed, bounds that portion by a street laid down upon a city map, as though that street were then an existing highway, though, in fact, it is not opened as such, the grantee is entitled, as against the grantor and his assigns, to have the street kept open to its full width.</p> <p>2. If, after such conveyance, the grantor obstructs the street with a fence or wall, he may be compelled, by mandatory injunction, to remove the obstruction.</p> <p>3. Incidentally to the award of such an injunction, the complainant’s right will be determined by this court.</p>

<p>1. When executors exhibit for settlement a joint account, and when, by the decree of an orphans court, such account is finally settled and allowed, the executors are jointly charged with the balance thus ascertained to be in their hands. The decree is in the nature of a judgment.</p> <p>2. In such case each executor is liable for the safe preservation of the funds which make up the balance with which they are charged.</p> <p>3. When the enforcement of liability under an account, which, on its face, purports to be joint, is sought, it may be shown that, in fact, the account was the separate account of one or more of the apparent accountants.</p> <p>4. Where, however, in absence of fraud or mistake, executors who do not control the funds of an estate, voluntarily join in-the account of the executor who controls those funds, and thereby charge themselves with the whole estate, they will be held liable because of their admission in judicio, and the judicial sentence pronounced thereon.</p> <p>5. More emphatically will this be so held in this court, when it is made to appear that those who thus voluntarily join in the account have been negligent of their duties to the detriment of the estate, against the warnings of a beneficiary of the estate whose apprehensions were not satisfied until such joint accounting was had.</p>

<p>On motion to dismiss bill under rule 224, in lieu of demurrer thereto.</p> <p>The bill alleges that Elias M. Sillcooks died on or about the 1st of August; 1888, at New Brunswick, in this state, leaving his son, Howard Sillcooks, his daughter, Ella S. Noyes, three grandchildren, Edward, Elmira and Annette Welsh, the children of a deceased daughter, his heirs at law, and Lucretia Sillcooks, his widow, him surviving; that he left -a will, which was admitted 'to probate on the 28th of August, 1888, in and by which he did, among other things, provide as follows:</p> <p>■ “All the rest and residue of my estate and property of every nature and kind, and wherever situate and being, I give, devise and bequeath unto my wife, Lucretia Sillcooks, for the full term of her natural life. At and after the death of my said wife, I give and bequeath my silver watch to my grandson, Edward Welsh, and my gold watch to my grandson, Edward Noyes, and my organ to my daughter. And all the rest and residue of my estate then remaining, that is, after the death of my said wife, wheresoever the same may be, I give, devise and bequeath in three equal parts and shares, to wit, one of said three parts and shares to my son, Edward Sillcocks, and to his heirs and assigns absolutely and forever; one of said three equal parts and shares to my daughter, Elinora, wife of George A. Noyes, and to her heirs and assigns forever; and one of said three equal parts and shares to my grandchildren, Edward, Elmira and Annette, children of my deceased daughter, Annette, who was the wife of John H. Welsh, share and share alike, to and among my said grandchildren and to their several heirs and assigns absolutely and forever;”'</p> <p>that the residue of the estate of Elias M. Sillcocks consisted in part of a house and lot situate on Church street, in the city of New Brunswick; that Lucretia Sillcocks, the widow of the testator, upon his decease, entered into possession of that property and has remained and still remains in the enjoyment and use thereof as her residence, and that she has neglected and refused to pay and discharge municipal taxes assessed against that land. The bill seeks to compel her to pay and discharge those taxes.</p> <p>Dismissal of the bill is moved, by way of demurrer, upon the ground that, by the terms of the will of Elias M. Sillcocks, Lucretia Sillcocks, His widow, took the residue of his estate in fee and not for life only. The bill is filed by the residuary devisees, who are also the heirs at law of Elias M. Sillcocks, and the motion is made in behalf of the widow, Lucretia Sillcocks. ■</p>

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

<p>1. If officers of a corporation manage, through the instrumentality of their power and position, to deprive an equitable owner of stock of any of his rights, their act in its consequence is a fraud, against which equity will give relief.</p> <p>2. A court of equity will compel the transfer of stock to the equitable owner thereof, upon the books of a corporation, when such transfer is fraudulently withheld by the agents of the corporation.</p> <p>3. Where, by fraudulently refusing to transfer stock, the fraud-doers are put in position, through the control they thereby acquire, to seriously prejudice the interests of those who are justly entitled to the transfer, and so act as to make their purpose to accomplish that prejudice apparent, the meetings they can control will be stayed by injunction until the transfers can be compelled.</p>

<p>1. A corporation, created by statute, possesses no rights and can exercise no powers which are not expressly given or to be necessarily implied,</p> <p>2. Such a corporation cannot lease or dispose of any franchise needful in the performance of its obligations to the state, without legislative consent.</p> <p>3. The act of March 11th, 1880, which amends the seventeenth section of the act entitled “An act to authorize the formation of railroad corporations and to regulate the same” (Rev. p. 930), is free from constitutional infirmity in its title and is sufficiently broad in its terms to confer power upon railroad corporations chartered by special law.</p> <p>4. The act of May 2d, 1885, entitled “An aetjespecting the leasing of railroads,” is constitutional.</p> <p>5. Equity looks at the substance, and will disregard names and penetrate disguises of form, to discover and deal with it.</p> <p>6. Where a corporate excess of power tends to the public injury or to defeat public policy, it may be restrained in equity at the suit of the attorney-general.</p> <p>7. A railroad company of this state leased its franchises and roads to a railway corporation of another state. The lease was not only unauthorized, but was expressly forbidden by law. Its effect was to combine coal producers and carriers and to partially destroy competition in the production and sale of anthracite coal, a staple commodity of the state.—Held, to be a corporate excess of power which tends to monopoly and the public injury.</p>

<p>A testator bequeathed $1,000 each to certain of his grand-children, payable to them when they should respectively attain majority, providing that in the meantime their respective fathers should hold the bequests in trust and apply the income therefrom “towards their education and support” in the discretion of the fathers.—Held that, so long as the fathers adequately educated and supported the legatees during their minority, the income was the father’s property, and might be alienated by them, subject to its liability for the education and support of the children.</p>

<p>■ On application to open decree, heard on order to show cause and affidavits.</p>

<p>1. A bill, attacking an award on the ground that the arbitrators refused to hear material evidence, must set forth the rejected evidence with sufficient fullness to enable the court to judge whether it was material or not.</p> <p>2. It is essential to the validity of an award that it be confined to those things which are submitted, and that it shall not extend to those which are not within the terms of the submission.</p> <p>3. An arbitrator may, under some circumstances, intentionally decide contrary to law and still have his award stand.</p> <p>4. Awards are to be expounded favorably and every reasonable intendment made in their support.</p> <p>5. Where an excess of power appears on the face of the award, the award will be declared void to the extent that the arbitrators have exceeded their authority. If the void can be separated from the valid without doing injustice, the good will be upheld and the bad rejected, but if a separation cannot be made without doing injustice, the whole will be declared void.</p>

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

<p>1. To render a chattel mortgage valid against the creditors of the mortgagor, the affidavit, stating the consideration, must show particularly how the debt on which it is founded arose.</p> <p>2, A creditor of a mortgagor, to be -in position to contest the validity of a chattel mortgage, must have his debt fastened on the mortgagor’s property.</p> <p>S. By an adjudication of insolvency and the appointment of a receiver, the debts of creditors at large of an insolvent corporation are fastened on its property.</p> <p>4. A deed or other instrument which is void as against creditors is void also against those who represent creditors.</p> <p>5. The receiver of an insolvent corporation is the representative of its creditors, and as such may, by suit or defence, avoid any instrument which is void as against them.</p> <p>6. To successfully contest the validity of a chattel mortgage, the receiver of an insolvent corporation is not required to show that it is fraudulent as to creditors, but all he need do is to show such facts as, under the statute, render it void as against the creditors of the corporation.</p> <p>7. In order to successfully contest the validity of a chattel mortgage, a subsequent purchaser or mortgagee must have made his purchase or taken his mortgage without notice of the prior mortgage, but a creditor is subject to no such condition—he may know of the existence of the mortgage when he becomes a creditor and still have a right to contest it.</p>

<p>1. The circumstances, situation and surroundings of a testator, at the time of executing his will, may be shown by oral evidence, to place the court in his situation, and thus enable it to understand the meaning and application of the language he has adopted.</p> <p>2. A devise or gift may arise from implication, but to justify the conclusion, that a gift has been made in this way, the implication in favor of the gift must rest on a probability of an intention so strong that an intention, contrary to that which is thus imputed to the testator, cannot be supposed to have existed in his mind.</p>

<p>1. The petitioner in a suit for divorce must, to entitle himself to a decree, where the only ground of jurisdiction is that he was a resident of this state when he brought his suit, prove that fact by clear and convincing evidence. If the evidence leaves it in serious doubt, the court will refuse to act.</p> <p>2. The domicil of origin is retained until another is acquired.</p> <p>3. After a person has abandoned his domicil of origin, his domicil will be considered to be in that place in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a present intention of making it his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home.</p> <p>4. The actual intention of the person whose domicil is in dispute is in most cases a fact of great importance, but the best and most trustworthy evidence of it is iound, as a general rule, in his acts rather than in his declarations.</p>

<p>On motion to dissolve an injunction, heard on bill and affi-davits and answer and affidavits.</p>

On motion for an injunction, heard on bill and affidavit, order to show cause and affidavits on the part of the defendants.

<p>On motion to strike out parts of an answer.</p>

<p>1. The leading principle of the law of trade-marks is, that no dealer shall be permitted to sell his goods on the reputation which another dealer has established in the market for his goods.</p> <p>2. The law protects labels for the same reasons and in precisely the same way that it protects trade-marks.</p> <p>3. No dealer can lawfully adopt the label of another dealer, or one so near like it as to lead the public to suppose that the article to which it is affixed;' was put upon the market by such other dealer.</p> <p>4. The legal quality of an act, resulting in injury, must be decided not by the motive with which it was done, but by the consequences which have necessarily resulted from it.</p> <p>5. A person, seeking protection against an infringement of his label, is not •required to prove fraud, nor that purchasers have been deceived and have purchased his adversary’s goods under the belief that they were his. A sufficient •case to entitle him to protection will be made if he shows that the resemblance between the counterfeit and the genuine is so close that it is probable purchasers, in buying, will mistake one for the other.</p> <p>6. Where the similarity between the genuine and the counterfeit is close enough to convey a false impression to the public mind, and is of a character to deceive ordinary purchasers, buying with the care usually exercised in such ■transactions, there the similitude is sufficient to entitle the complaining party •to protection.</p> <p>7. In a suit where the question is, whether one label is a. fraudulent simulation of another, the labels themselves furnish, as a general rule, the very best evidence of which the case is susceptible.</p>

<p>Where the complainant by his bill shows that the defendant, a building and' loan association, by its constitution and by-laws, promised that when each-shareholder had made payments upon his shares of stock, making such shares-of the value of $200 each, it would declare the institution closed and deliver-to those who Had taken loans their securities to be canceled, and pay to those -who had simply invested their money the full value of their shares, and that he had made such payments and the company had declared the institution closed, and that the company has in its possession assets, and refuses to pay him after the lapse of ten years, and prays a discovery, an accounting and an injunction and the appointment of a receiver, a case is presented within the jurisdiction of a court of equity.</p>

<p>1. After a bond and mortgage have become due, a promise to extend the time of payment may be shown by parol.</p> <p>2. The general rule is that such promise cannot be enforced, unless it appears that it was made upon sufficient consideration, yet where the action of the party to whom the promise was made was controlled by such promise and he took title to the real estate covered by the mortgage, relying upon such promise, a court of equity will apply the doctrine of estoppel and refuse its aid to the mortgagee when he attempts to foreclose his mortgage before the expiration of the period named.</p>

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

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

<p>1. A court of equity lias power at the suit of a minority of the stockholders of a corporation to order a dividend of its assets where the safety of the interest of the minority requires it.</p> <p>2. In determining whether to exercise such power in a particular case, the object of the corporation and the situation of its affairs must be taken into consideration.</p> <p>3. Where a majority of the stockholders have combined to so manage the business of the corporation as to divert all the profits of the enterprise from their legitimate destination, and to appropriate them to their own use, and have in part executed their plan, and the circumstances render any change in the personnel of the management impracticable, a proper case has arisen for the intervention of the court to make a division of the assets.</p> <p>4. A trustee who has committed a breach of trust by deliberately extracting and appropriating to his own use a portion of the trust fund, cannot cure the breach and demand the further custody of the fund by simply restoring it.</p> <p>5. A, B and C joined in the adventure of buying a certain farm, cutting it up into building lots and selling them out at retail. For that purpose they formed a corporation and divided the capital stock equally among them, but paid nothing for it. The three were directors, and B and C combined to elect themselves officers. The farm was conveyed to the corporation and paid for by money advanced by B and C, who took therefor the obligation of the company. B and C, in the absence of A, voted themselves extravagant compensation for their services, and proceeded to divide the farm into lots and to sell them on the installment plan, in which they werewery successful. 'Within a year their balance sheet showed a surplus of $37,000, over and above a debt tO' B and C, for money advanced of $3,000, and upwards of $16,000 for services. B and C then procured the corporation to assign and convey all its assets to O' by deed, and at the same time formed a new corporation, of which A was not a stockholder, and procured C to convey those assets to it. A filed his bill in equity to set aside this transfer and the charge for services, and after an expression of opinion by the court at a preliminary hearing that the transfer-must be set aside, B and C caused the new company to reconvey the assets to-the old company, and at the hearing it appeared that the company was out of debt, except for the services of B and C.—Held, that A was entitled to have his one-third interest in the corporation ascertained and paid and set off to him, and that the resolution by which B and C fixed their salaries and compensation was void.</p>

<p>Bill of interpleader. Heard on the pleadings and oral proofs.</p>

<p>1. Testator, by his will, devised certain land and premises to his son in fee, subject to the full payment by the son of a mortgage debt thereon and on other land and premises which testator further devised to his daughter. Afterwards testator executed a deed, conveying, for a nominal consideration, to his daughter a portion of the land csvered by the mortgage.and devised to his son, •subject to a life estate expressly reserved for himself by testator, “ and subject also to encumbrance of mortgage.” The deed also contained the usual covenants of seisin and warranty, “subject to incumbrances and the life estate hereinbefore mentioned,” but no covenant against encumbrances.—Held, that the •conveyance to testator’s daughter was expressly subject to a proportionate share of the mortgage debt, and left the will otherwise unrevoked, and the result of the conveyance was a devise of the remainder of the mortgaged premises, not devised to the daughter, to testator’s son, subject to a proportionate share of the mortgage debt, the charge and devise being coextensive.</p> <p>2. The rule that a will for some purposes operates from its date, and for other purposes from the date of the testator’s death, applies only to the ascertainment of the property which passes by it, and relates to the effect and operation of the will, rather than to its construction, but does not apply to a case where the meaning of the language is involved.</p>

<p>Heard on bill, answer and proofs.</p>

<p>A bill for partition stated that the premises were subject to a mortgage held by C., but did not make C. a party, nor did she appear in the suit. The order of reference to ascertain the state of the title &c. directed the master to ascertain as to encumbrances, and he reported that C. had produced before him her mortgage, and he reported the amount due upon it. The decree of sale directed the premises to be sold free of the mortgage.—Held, that C. was entitled to be paid from the proceeds before the complainant’s costs.</p>

<p>On final hearing.</p>

<p>On bill to foreclose. Heard on bill, combined answer and', cross-bill, replication and proofs.</p>

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

<p>On bill for partition. Heard on bill, answer and oral proofs.</p>

<p>A complainant who had been in possession for more than twenty years of -certain premises under a mortgage, desiring to make his title merchantable, filed a bill in equity against the heirs of the mortgagor, in which he set out the mortgage and his possession under it, alleged that a certain amount was still due and owing upon it, prayed that an account might be taken of the -amount so due, the defendants decreed to pay the same within a day to be fixed or be forever foreclosed <&c. One of the defendants appeared and answered, prayed that an account might be taken of what, if anything, was due com-plainant, and defendant be permitted to redeem &c. Complainant then moved to dismiss his bill upon payment of costs.—Held, that such dismissal must be upon terms that it be without prejudice to the defendants’ right to the benefit of the admission and waiver contained in the bill, in any proceedings defend. :ant might take for the redemption of the premises.</p>

<p>Heard on bill, answers, cross-bill, replication and proofs.</p>

<p>1. A mortgage given without consideration and to protect the mortgagor’s property against an anticipated judgment, although having no priority over a subsequent mortgage, is valid as between the parties.</p> <p>2. Bill to foreclose by holder of first and third mortgages against a second mortgagee and mortgagors, contained a clause alleging that second mortgage was void because given without consideration. No answer was filed; master’s report found the second mortgage was given to protect mortgagor’s property from his creditors, and “should be set aside and for nothing holden;” decree declared that it was not a lien upon the mortgaged premises.—Held, this allegation in the bill, finding of the master and declaration in the decree must be confined in their effect to the complainant’s third mortgage, and cannot affect the rights of the holder of the second mortgage as against the mortgagors, who were owners of equity of redemption, and that the proceeds of sale, after satisfying the complainant’s two mortgages, must be applied to the second ■mortgage.</p>

<p>1. A complainant in mortgage foreclosure, who nominates and procures ta be appointed as receiver his own solicitor and agent, must bear the loss caused by his defalcation and the insufficiency of his sureties.</p> <p>2. Qutzre. Whether it would not be well to establish the rule that in all cases a mortgagor should be held responsible for the conduct of a receiver appointed on his motion and nominated by him.</p>

<p>On bill to foreclose. On hearing on bill and plea.</p>

<p>The statute (Rev. p. 394) directs that a receiver appointed in supplementary proceedings shall apply the proceeds of any property of the defendant in execution in payment of the judgment and costs, and that he shall pay any balance remaining into the court wherein said judgment was recovered. The statute expressly subjects the receiver to the authority and orders of the court which appoints him. Proceedings supplemental to an execution issued out of the supreme court were instituted before a judge of that court, and a receiver was appointed in such proceedings by the judge. Proceedings were had in the chancery court, both by the receiver and the execution creditor, to have certain conveyances by the judgment debtor declared void, but no execution was issued in either case.—Held, that one who questioned the accuracy of an account rendered by the receiver to the judge who appointed him was not entitled to an accounting in the court of chancery, but that he must apply for relief, to. such judge.</p>

<p>Bill to recover a legacy.</p>

<p>Heard on pleadings and oral proofs.</p>

<p>'On final hearing on pleadings and proofs.</p>

<p>On final hearing on bill and answer.</p>

<p>Heard on bill, answer and proofs.</p>

<p>1. Under the second section of the Dower act (Reo. 1876 p. 320) the widow is not entitled to hold without paying rent, until her dower is assigned, a farm without any buildings upon it, belonging to her husband and adjoining and used by him in connection with a farm belonging to the wife, upon which latter were the mansion house occupied by the husband and wife before and at his death.</p> <p>2. Upon a bill filed by one tenant in common against his co-tenants for partition, containing a charge that one of the defendants has enjoyed and received the rents and profits of the land, and praying that he may be decreed to account for them, the other defendants and co-tenants are entitled to the benefit of an adjudication in complainant’s favor on the prayer for an account, without con-sidering or asserting their rights by cross-bill.</p>

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

<p>Under Corporation Act §§ 54, 55, providing that nothing but money shall be considered payment of stock, except that directors may buy necessary property, and to the amount of the value thereof issue full-paid stock, marked “ Issued for property purchased,” the directors of a corporation, the incorporators of which have agreed to give sixty per cent, of the stock to a person for two patents, are justified in refusing to issue such stock, one patent not having been perfected, and the articles made under the other being worthless, and on such refusal this court will not decree specific performance of such contract.</p>

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

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

<p>A mortgagor is warranted in paying the debt to the conveyancer who negotiated the loan, who had been authorized by the mortgagee to receive the interest, and had received it repeatedly, and who produced and surrendered the bond and mortgage when the mortgagor desired to pay them off, though he had in fact no authority to receive such payment, and though such bond and mortgage had been intrusted to him by the mortgagee for safe-keeping only, wrapped up in a bundle with other papers, without informing him of the contents of the package, and without giving him any power of disposal over it; and the loss arising from the conveyancer’s failure to pay over the amount to the mortgagee must fall, not on the mortgagor or his vendee, who bought under a contract obligating the mortgagor to discharge the mortgage, but on the mortgagee, whose conduct rendered possible the fraud of the conveyancer.</p>

<p>On bill, answer and proofs in open court.</p>

<p>In the absence of any irregularity, fraud, mistake or legal surprise, a private sale of a lunatic’s land, by her guardian, under order of and confirmed by the court of chancery, will not be set aside merely because another person has made an offer for the land exceeding by six per cent, the price produced at the guardian’s sale, which increased amount would not repay the purchasers for their outlay and damages in effecting the sale.</p>

<p>1. In an accounting between trustee and cestui que trust not under disability, annual receipts by the latter, containing accounts which credit the trustee with amounts paid for taxes upon the trust fund, amount to admissions that the sums thus credited were justly paid by the trustee, which, in absence of proof of fraud or mistake, are conclusive against the cestui que trust.</p> <p>2. Where the trustee is dead and the cestui que trust is a competent witness-to explain her receipts, yet remains silent, the court will not infer fraud or-mistake in her receipts from suspicious circumstances alone.</p> <p>3. Where a trustee has neglected to keep an account of his investments of the trust funds and of his receipts and disbursements of the same, and thereby expensive litigation has been occasioned an.d the courts have been deprived of means of being-assured of the correctness of the accounting had, his neglect may be punished by resolving doubts against him and also by withholding-compensation from him. In the case considered the latter of these punishments is inflicted.</p>

The paper in dispute was presented for probate in common form to the ordinary on the 17th day of January, 1891, by Adeline J. Gordon, a sister of the decedent.

<p>On appeal from a decree of the orphans court of Camden county, which admits to probate a paper purporting to be the last will and testament of Thomas Howell, deceased.</p>

<p>1. The deposition of a subscribing witness, made before the surrogate in proving a will, constitutes part of the evidence which must be considered on an appeal, and such a deposition, when supported by a perfect attestation clause, raises a strong presumption of the clue execution of the will.</p> <p>2. An attestation clause is made for the purpose of preserving, in permanent form, a record of the facts attending the execution of the will, so that, in case of the failure of the memory of the subscribing witnesses, or other casualty, they may still be proved; and the courts have accordingly held that, on proof of the authenticity of the signatures of the subscribing witnesses, the facts stated in the attestation clause must be accepted as true, until it is shown by .affirmative proof that they are not.</p>

<p>On application for probate.</p>

Emery, esquire, advisory master, in Zabriskie’s Executors v. Baudendistel et ux. The deed of conveyance, to which the opinion refers, did not contain any covenant for seizin or against encumbrances, but did contain covenants, in the usual form, for quiet enjoyment and a general warranty of title.

Dignan, the above-named complainant, made an assignment of all his interest in the suit then pending to Mary E. Millington j that afterwards and in the said month of December he obtained a decree against the defendant, James ~W. Dignan, for the sum of $4,163.41; that afterwards an appeal was taken by the defendant to the court of errors and appeals; that during the pendency of the said appeal and before the same was heard the solicitor of the complainant gave notioe to the…

<p>1. A covenant or stipulation inserted in a deed poll binds the grantee, his-heirs and assigns, where such stipulation relates to the premises conveyed.</p> <p>2. In such case an easement may be acquired by the grantor by a- clanse of' reservation. The technical distinction between reservation and exception will be disregarded and the language used so construed as to effectuate the-intention of the parties.</p> <p>3. The grantee in a deed and those claiming under him cannot deny thebindiug authority of a reservation in a deed.</p> <p>4. The effect of the reservation in this case is to. prohibit the grantee from building on the common line more than twenty-four feet in depth, commencing at Main street.</p> <p>5. Quaire. Whether the same rule of construction applies to a reservation or an implied grant as to an express grant, thereby making it necessary to use-the word “ heirs ” to create a fee ?</p>

The bill is filed to foreclose a mortgage given by the defendants to James M. Robeson in 1878. After his death his personal representatives assigned it to the complainant. The defendants by their answer set up a considerable payment to the mortgagee, 'James M. Robeson, on account of the principal of the mortgage. The vice-chancellor found that allegation to be proven.

<p>On appeal from a decree advised by Vice-Chancellor Green, whose opinion is reported in 4, Dick. Ch. Rep. 484.</p>

<p>On appeal from a decree advised by Vice-Chancellor Bird,, whose opinion is reported in Morgan v. Morgan, 3 Dick. Ch. Rep. 399.</p>

<p>1. A father bequeathed to his son Jacob one-third of the residue of his estate, amounting to §18,000, 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, that the conclusions of the opinion of the chancellor are concurred in, except that ^respecting the disposition of the fund; that the conduct of the appellant has been sufficiently tested, and that he has made a proper use of the money paid him, and that the whole fund should now be paid to him.</p>

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

<p>Where information is casually obtained by an agent of a corporation, the corporation is not charged with notice from the mere fact of its agent’s knowledge, but if the corporation act through such agent in a matter where the information possessed by him is pertinent, the knowledge of the agent will be imputed to the principal.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Flemington National Bank v. Jones, 5 Dick. Ch. Rep. 244.</p>

Upon order to show cause why a receiver should not be appointed to take charge of the road of the Central Railroad Company of New Jersey generally, or with such powers in relation to the transportation of coal over the Central railroad as may be necessary to enforce obedience to the injunctions of this court heretofore issued herein.

On settlement of account of executors of the will of Benjamin Hutton, deceased.

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

<p>On bill to construe will, answers, cross-bill and proofs.</p>

<p>1. Effect must be given to a deed according to the intention of the parties, and consequently, when a deed, absolute on its face, is executed as a security, it must be declared to be a mortgage.</p> <p>2. It is the intention which exists when the deed is executed that controls; No subsequent change of intention will alter its character.</p> <p>3. A voluntary settlement, unreasonable in itself, will he set aside when it is made to appear that the settlor did not, for want of proper advice and instruction, fully and clearly understand and appreciate the consequences of hi& act.</p> <p>4. A transfer of property made in fraud of creditors, while void as to them,, is valid and unimpeachable as between the parties.</p> <p>5. In transactions between husband and wife an equitable assumpsit will never be inferred contrary to their manifest understanding.</p>

<p>On exceptions to the account of complainant as executor.</p>

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

<p>1. The rule against perpetuities, so far as it affects gifts made to cemetery corporations, for certain designated purposes, has been abolished in this state.</p> <p>2. Any words which clearly manifest an intention on the part of the testator to give a particular thing constituting part of his property, as distinguished from all other things of the same kind, and which it appears he did not use to designate quantity, will make the gift specific.</p> <p>3. The rule respecting specific legacies is not a technical arbitrary rule, to be answered only by the use of particular words and expressions, but is an embodiment of the general principles by which the character of legacies, whether they are general or specific, must be tested and determined.</p> <p>4. A direction to invest a certain sum of money in the purchase of a particular mortgage is not a specific but a general legacy.</p> <p>5. Where there is a deficiency of assets to answer the legacies, the question whether the specific shall abate with the general legacies must be decided according to the intention of the testator.</p> <p>6. All legatees, both general and specific, derive their rights from the will of their testator, and if he has declared his intention as to their respective rights, in cáse of deficiency of assets, such declaration constitutes the standard by which their rights must be measured.</p> <p>7. A testamentary direction which contravenes the law, or which, if executed, will deprive creditors of any of their remedies, is without legal force.</p> <p>8. Where a gift is made to a corporation by an erroneous name, but the description of the legatee given by such name or otherwise is sufficient to enable the court, with the aid of extrinsic evidence, to identify the legatee with certainty, the misnomer will not defeat the gift.</p>

<p>1. An action at law may be brought on a promissory note, payable on demand, immediately after its delivery and before any actual demand has been, made.</p> <p>2. Where no time of payment is expressed in a promissory note, or other instrument for the payment of money, the law adjudges that the parties meant that the money should be payable immediately.</p> <p>3. No suit can be maintained in eqpity for a cause of action for which there-is an adequate and complete remedy at law.</p> <p>4. Where there is both a legal and equitable remedy for the same cause of action, if the legal has become barred by lapse of time, the equitable will also,, except under very special circumstances, be held to be barred.</p> <p>5. Trusts over which the common law courts can exercise no jurisdiction, and which can only be enforced in equity, are not affected by the statute of' limitations, nor by any principle of analogy deducible therefrom.</p>

<p>The remedy given by the statute of 1870, to compel the determination of claims to real estate, can only be resorted to when the landowner, whose title or right is subject to an adverse claim, is in a position where it is beyond his power to put such claim to the test by any of the ordinary processes of the law.</p>

<p>1. When a parent undertakes to make disposition of his estate amongst His several children, the presumption is that he knows best what measure is due to each.</p> <p>2. Where a parent, after making and publishing his will, and after the death of one of his devisees dying without issue, makes a conveyance of a portion of his real estate, which he had devised in his will to his son Thomas, to his daughter Jane, to whom he had-also devised portions of his real estate, a case for an election upon the part of Jane whether she will accept under the deed or under the will, at the suit of Thomas, is not made out.</p> <p>3. Where the grantor or testator deals only with his own property, and in disposing of it gives two portions to one, he imposes no conditions upon the grantee or devisee; the latter in neither case is under obligations to elect.</p> <p>4. In case a testator first disposes of all of his real and personal estate amongst his four children, soon after which, and in the lifetime of the testator,, one of them dies without issue, concerning which the testator makes" no other provision, in consequence of which as to the portion so given him dies intestate, but before his death he executes and delivers a deed, which is expressed -upon its-face to be in consideration of one dollar and natural love and affection, to his daughter Jane for a portion of his real estate which he had devised to his son Thomas, it may be shown by parol testimony that the real consideration of such conveyance was care and services of the said Jane to the testator during the last years of his life, and that he so declared when he was making the arrangements for it and executed the deed of conveyance.</p> <p>5. It may be shown by parol testimony whether such transactions between the parent and child are or are not intended to operate as an advancement. In such case, the deed of conveyance expressing it to be upon the consideration of one" dollar and natural love and affection, the presumption is that an advancement was intended; but such presumption may be overcome by parol testimony showing the intention to be otherwise.</p>

On order to show cause why an injunction should not issue. Heard upon bill and answer and accompanying affidavits. The complainant, by his bill, seeks to establish and protect his right to the benefit of a flow of water to his premises from the defendant’s premises, through two several pipes laid underground and forced up by two hydraulic rams, situate, with the spring that drives them, on the defendant’s premises.

<p>On motion to strike out bill under two hundred and fifteenth rule.</p>

<p>1. There is a distinction between injuries which affect the air merely by way of noises and disagreeable gases resulting in personal discomfort and those which injuriously affect the land itself or structures upon it. As to the former, each person living in society must submit to a degree of discomfort depending in some measure upon the circumstances of his residence. As to the latter, the owner or occupant of land is entitled to enjoy it free from any direct injury which will appreciably affect its value.</p> <p>2. A continuing injury to land appreciably affecting its value will be enjoined by this court.</p>

Heard on bill, answers and proofs taken in open court. The bill is in the nature of a bill to foreclose.

<p>1. Complainant was engaged in the manufacture of soap and boot-polish. By four several agreements he sold the use of his name and all interest in the plant to C. & Co. for a term of twenty years. There was no question as to the limitation expressed in these agreements. A fifth agreement was entered into by complainant and C. & Co., which was declared to be supplementary to the fourth agreement annexed thereto. It was in three paragraphs.—Held, that the word “not” in the first paragraph of the fifth agreement was insufficient to pass a perpetual unlimited right to carry on the business of manufacturing the Soap and boot-blacking, no words of perpetuity being used in connection therewith, and the word in question being limited by the agreement to which its immediate context is declared to be a supplement.</p> <p>2. By the second paragraph of the fifth agreement complainant did not release his right to manufacture the soap &c. after the expiration of twenty years, as he did not derive such right from the former agreements.</p> <p>3. The word “ hereafter” in the receipt is insufficient to pass a perpetual right to manufacture the soap &c., there being no words denoting perpetuity used therewith.</p> <p>■4. Where complainant, after the twenty years, files a bill to enjoin the further use of his name, and the contract is asserted by defendants to have conveyed a perpetual right to his name, and the bill alleges that the actual contract between the parties limited the period to twenty years, and that if the writings are capable of being so construed as to give an unlimited right to defendants, then such construction would be a fraud on complainant, and ought not to be adopted, such allegation sufficiently charges fraud.</p> <p>5. Under the circumstances, complainant’s delay of fifteen months in notifying defendants of his claim cannot be treated as an admission on his part that he originally understood that he had sold his interest absolutely to defendants.—Held further, that upon the evidence as to the effect of the fifth agreement it would be inequitable to construe the agreement so as to pass a perpetual right to complainant’s name and business.</p>

On rule to show cause why an injunction should not issue. Heard on bill, supplemental bill, answers and affidavits, and on subsequent stipulation that the cause should be disposed of as having been heard on final hearing.

The petition is filed for divorce on the ground of adultery. 'The defence is a denial of guilt and condonation. The offence ;is charged with requisite particularity to have been committed with one person named Stiles, in Bordentown, and with another named Kirby, in Philadelphia.

On motions for leave to open the case and produce additional testimony, and for alimony pendente lite and counsel fee. . ,

<p>1. Defendant corporation was organized under Rev. p. 567, autliorizing it to-deal in lands, and providing that the company’s business should" be managed by a board of directors. Defendant was threatened with a mortgage foreclosure of its entire property, which was depreciating in value. Its debts were-large, and all attached to such property in its entirety.—Held, that the court will not interfere with the directors in disposing of the property as a whole, where there is no fraud and no violation of the company’s by-laws, and the-directors are sustained by a large majority of the stockholders.</p> <p>2. While such disposal of the property as a whole practically results in-winding tip the present investment of the corporation, it is not a winding up, in law, of the corporation, which still continues to exist, with power to use-the funds and securities derived from the sale in any future transactions by it..</p>

<p>1. When enough is said or done, in the presence and with the knowledgof the testator,- to -give the witnesses to understand distinctly that the testator desires them to know that the. paper produced is his will, which they are to attest as such, the statutory requirement, that a testator shall declare his will in the presence of witnesses, is sufficiently complied With.</p> <p>2. That whieh is said or done must plainly lead to the single necessary inference thatthe document executed is the testator’s will. 3. Equivocal acts and words, which are fairly susceptible of a meaning-inconsistent with will-making, will not be a sufficient declaration of a will, though they be supported by a perfect attestation clause, the contents of which were not made known to both witnesses.</p>

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

<p>On appeal from the decree of the orphans Court of Camden county.</p>

<p>. If a decree be entered against a person who is not a party,- he has a right to have it reversed, as to him, on appeal.</p>

<p>A mortgagee cannot redeem Ms mortgage by setting up any independent personal demand against the mortgagor.</p>

Cord, 5 Dick. Ch. Rep. 186. Fougeray, who is complainant, and Cord and Korb, who are defendants, formed a corporation by certificate under the general act of this state for the purpose of buying, selling, exchanging and improving real estate, with a capital of $1,500 and a corporate existence of fifty years. The first and only acquisition of land disclosed by the case was the purchase of the farm of one Stafford, to which the company took title soon after its incorporation.

<p>On an appeal from a decree in Cooper v. Brooks, advised by Vice-Chancellor Pitney.</p>

<p>1. The rule in reference to what is necessary to charge a party with notice of a trust so as to put him upon inquiry and charge him therewith is restated as set forth in Hoy v. Bramhall, 4 C. E. Gr. 572.</p> <p>2. In this case the evidence does not satisfactorily show that the mortgagee had such notice of the trust which bound the mortgagor as to charge the proceeds of the mortgage with the trust.</p> <p>3. So much of the decree of the chancellor is set aside as directs that the proceeds of the mortgage be paid to the Philadelphia National Bank, and the amount due on the mortgage is directed to be paid to the complainant.</p>

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Wolfe v. Driggs, 17 Stew. Eq. 363.</p>