Volume 52 — New Jersey Equity Reports

<p>On petition for leave to appeal from receiver’s disallowance of claim.</p>

On motion upon petition to open decree and amend bill by striking out a party defendant. On the 28th of April, 1891, Ralph A. Pullen filed a bill in chancery for the partition of certain lands of which he and others were tenants in common. He and his wife, Catharine A. Pullen, were then living apart. The wife was made a party defendant to the suit, because of her inchoate right of dower in her husband’s undivided interest in the land.

On bill for construction of will, answers, replications and admission as to facts. George W. Bassett, of Orange, in this state, died on the 28th of April, 1887, leaving a will, in and by which, among other ■ things, he did provide as follows: “Fifth.

On motion to punish for contempt. The bill in this cause was filed in June, 1874, in aid of an unsatisfied judgment, recovered June 2d, 1857, by Samuel Forrest, deceased, against Rodman M. Price, of the county of Bergen, in the supreme court of this state, for $17,000 debt and $78.04 costs of suit.

<p>On motion to dissolve injunction. Heard on bill, answer and accompanying affidavits.</p>

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

<p>1. The remedy by specific performance is not a matter of strict right but of sound judicial discretion, and will be granted or denied as the justice and right of the particular case shall seem to the court, on full consideration of the rights and equities of the .parties, to require.</p> <p>2. As a general rule, specific performance will not he decreed in any case where mutuality of obligation and remedy does not exist.</p> <p>3. Where a husband agrees to exchange land belonging to his wife for land of the defendant, and the title to the land which the husband agreed to convey is still in the wife when the husband sues, and also when decree is to be pronounced, no decree for specific performance can be made.</p>

<p>1. A deed absolute on its face, executed as a security, will be declared to be-a mortgage.</p> <p>2. The fact that the deed was executed as a -security may be proved by parol evidence.</p> <p>3. The burden of proof in such a ease rests on the party alleging that the-deed is not what it purports to be on its face.</p> <p>4. On a bill to redeem the general rule is, that the mortgagor will be required to pay costs, but this rule may-be dispensed with when the mortgagee’s conduct-has been oppressive.</p>

<p>On application to remove suit to the circuit court of the United States.</p>

<p>1. No one can make an assignment of dower but the tenant of tbe freehold.</p> <p>2. A writ of dower will not lie against a person holding a mere chattel interest in the land, or having an estate of less duration than the life of the dowress.</p> <p>3. An action of dower can only be maintained against the owner of the land or the tenant of the freehold, for no other person has power to make a valid assignment of dower.</p> <p>4. While courts of equity possess concurrent jurisdiction with courts of law in suits for dower, they govern themselves in the decision of cases involving no equitable right by precisely the same principles that would govern a court of law in deciding a like case.</p>

<p>1. A wife who allows stock bought with her money to stand for several years in her husband’s name, in order to give him credit, is estopped to assert her ownership as against his creditors.</p> <p>2. One whose debtor has made an assignment for the benefit of creditors may, after neglect on the part of the assignee for eleven years to take proceedings to discover property belonging to the debtor, and having established his claim by judgment, institute such proceedings himself.</p> <p>3. The fact that the creditor filed his claim with the assignee does not prevent him from instituting such proceeding.</p> <p>4. "Where a creditor of one who has made an assignment for the benefit of creditors, institutes proceedings for the discovery of assets and succeeds therein, it is proper to bring in the assignee as a party before making a final decree as to distribution of such newly-discovered assets.</p>

<p>1. Where a corporation assigns accounts to one of its directors as security for Ms endorsement of its notes theretofore issued, lie will not be permitted, in case of the insolvency of the corporation, to claim such accounts as a personal indemnity simply, but the holder of the notes so endorsed will be subrogated to the rights of such endorser to such accounts.</p> <p>2. The presumption that an instrument to which the seal of a corporation is duly attached was first authorized by the corporation, is overcome by proof that the authority for the execution of such instrument was given at a special meeting of the directors, at which all were not present, there being no proof that the absent ones had any notice of such meeting; nor will the necessity of such notice be dispensed with by showing that the meeting was an adjourned meeting, the previous one having been a special meeting, without also showing that there was notice of such first special meeting, and that the object of it was made known in the notice, or that the directors, absent at the adjourned meeting, were present at the time of the adjournment, and that the question to be determined at such adjourned meeting was made known as the object of such adjournment.</p>

<p>On motion for injunction heard on bill and answer.</p>

<p>Judgment being entered in the common pleas on a case certified from the circuit, the case was returned to the circuit, where defendant moved to open the judgment. The chief-justice denied the motion and ordered the case remanded to the common pleas. Defendant had no notice of the remand till after execution was issued and the time had elapsed in which he could give bond on bringing error. — Hdd, that in the absence of a showing of meritorious defence, the court of chancery could not enjoin process on the judgment on the ground that the remand to the common pleas was improper.</p>

<p>On motion to set aside service of citation.</p>

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

<p>On final hearing on pleadings and proofs.</p> <p>The bill is filed by an incorporated company against certain individuals who claim to act as its board of directors, and the prayer is that the defendants may be enjoined from receiving any subscription for any share or shares of the capital stock'of the complainant; from issuing any receipt or certificate for any such share of stock; from calling in or receiving any moneys or installment on account of any share of such stock; from erecting or constructing any building or work, and from laying any water-main for the supply of water authorized under the act incorporating the complainant; from making any contract, in the name of the complainant, for the supply or use of water in the county of Union, in said state; from making any contract, in the name of the complainant, for erecting any of said work; from employing any workmen or laborers in the name of the complainant, and from doing or causing to be done any act or thing in the name of the complainant corporation or otherwise, whereby complainant, or the franchise or property thereof, or any stockholder of the corporation may be charged with any debt, contract or liability.</p> <p>The bill in support of this prayer sets out the incorporation of the complainant by a special act of the legislature, approved March 17th, 1870 (P. L. of 1870 p. 788), by which, in its first section, eleven gentlemen therein named,</p> <p>“and all other persons who may hereafter be associated with them in the manner hereinafter provided, and their successors, shall be and are hereby constituted and declared to be a body politic and corporate, by the name and style of the ‘ Union Water Company,’ and by that name shall have continual succession, sue and be sued, plead and be impleaded, answer and be answered unto, defend and be defended in all manner of actions whatever, have a common seal and make, change and alter the same at pleasure, and purchase, hold and enjoy such real and personal estate as may be necessary or useful for the object of this incorporation, or may be taken in payment of debts.”</p> <p>The same section provides that the capital stock shall be $50,000, divided into two thousand shares of $25 each, and that there shall be seven directors, stockholders of the corporation, who shall be chosen annually on a day named, after notice published in a newspaper. The act provides, in its second section, that the eleven persons named in the first section as incorporators shall be commissioners to procure subscriptions for the stock of the corporation, and that they or a majority of them “ may open books for that purpose at Cranford,” upon giving ten days’ previous notice in a newspaper published in Union county, “and five dollars on each share of stock subscribed for shall be paid at the time of subscribing therefor, and the balance to be paid by installments from time to time;” and whenever five* hundred shares shall be subscribed for, the said commissioners shall call a meeting of the stockholders withiii sixty days thereafter, by giving fifteen days’ notice of the time and place, in the county of Union, of such meeting, in a newspaper published in said county, for the purpose of electing directors and transacting other necessary and proper business; and when directors are elected the said commissioners shall pay over to them the money they shall have received, first deducting therefrom all expenses incurred by them;</p> <p>“ and all tbe powers of the said commissioners shall cease and be determined on the election of a board of directors, and the said directors or a majority of them shall have power, from time to time, to open the books for the further subscription of stock until the whole number of shares of stock is subscribed” &c.</p> <p>The act, in its subsequent sections, gives power to supply the town of Cranford “and other places, in Union county” with water, and to contract with persons, companies, associations and corporations for the supply, use and preservation of water, and to erect, construct and maintain works and structures necessary or convenient to the purpose of this act, and to lay down pipes and other conduits, and to erect and construct hydrants and fireplugs in the streets, alleys, lanes and other places, and to do all tilings necessary for supplying water as aforesaid. No power of condemnation is given, but the company is authorized to take water from the Rahway river near Cranford.</p> <p>The bill proceeds to state that, pursuant to that charter, the commissioners gave due notice of opening books for subscriptions of stock on a day named, at Cranford hall, in the village of Cranford, and that thereupon, at the time and place named, the same eleven persons who were incorporated by the act subscribed for one hundred shares of $25 each, and paid the sum of $5 upon •each share at the time of subscribing therefor, and no other persons subscribed, and that afterwards a meeting of the stockholders, to elect directors, was duly called, and that seven directors were thereupon elected, who, in turn, proceeded to elect Alden B. Bigelow as president of the corporation, E. A. Eisher as secretary, and S. Cahill, Sr., as treasurer; that those officers accepted their election and acted as such officers; that subsequently, in the year 1872, another election of directors was duly called by advertisement, and held, and a set of seven directors elected by which the same officers were elected president, secretary and treasurer respectively, and that they accepted their several offices and held them up to the year 1891, in August, when David Mulford, one of the directors, having died, James H. Partridge, •one of the corporators, was elected in his place; Mr. Eisher, one of the directors, having resigned, Mr. Wilbur, then being a stockholder, was elected in his place; Mr. Purves having also resigned, Mr. Hegeman, a stockholder, was elected in his place, and that Mr. Poster, another of said directors, having resigned, Mr. Beadle, a stockholder, was elected in his place.</p> <p>The bill proceeds to state that, notwithstanding this action, in the month of June, 1891, six of the commissioners named in the act, viz., Messrs. Hamm, Fisher, Crane, Cahill, Sr., Cahill, Jr., and Purves, signed and published a notice for the opening of books of subscription for the stock of said company, at'Cranford hall, on the 15th of July, 1851, at two o’clock in the afternoon. The bill further states that Fisher, Crane and Purves, three of the six so signing said call, before the 15th of July, and before any book of subscription was opened, by writing under their respective hands, withdrew their names respectively from the notice for that day, and withdrew and revoked all authority to act under or in their respective names in the premises, and notified the person who was active in procuring their signatures to the notice, of such withdrawal, and that on the 15th of July, at the time mentioned in the notice, at Cranford hall, in Cranford, only two of the commissioners who had signed the last-mentioned call were present, viz., Mr. Hamm and Mr. Cahill, Jr., and that the other four — Fisher, Crane, Purves and Cahill, Sr. — were not present, and that Mr. Bigelow appeared there in behalf of the complainant and notified the persons there present, including Messrs. Hamm and Cahill, that three of the commissioners who had signed the notice, viz., Messrs. Fisher, Crane and Purves, had withdrawn their names from the-same, and that there was no authority for holding the meeting or for opening books of subscription; but that, nevertheless, the defendant Bergen, who was active in procuring the signatures to the notice and in conducting the proceedings, proceeded to open books of subscription, and that the defendants pretended, under subscriptions there had, to organize a company in the name of the complainant, and to act as such. And the bill further alleges that the persons acting under that authority threaten to' collect money upon the . subscriptions so made, to issue stock in the name of the complainant, to make contracts, construct aüd build water works and lay water-mains, water-pipes and conduits for the supply of water in the name of the complainant.</p> <p>The bill charges that the company was finally organized in 1870 by the original incorporators and that it exercised its franchise of being a corporation, many years; that by such action the original corporators were functus officii and without power to call another meeting, and that if they had the power it required at least six of them, to act in that behalf, and the withdrawal by three in writing of the authority to use their names, and the absence of all the commissioners except two at the time and place fixed, rendered all proceedings under the notice of 1891 absolutely void.</p> <p>The answer admits the act of incorporation and the giving of the notice to meet on the 19th of July, 1870, but denies that anybody appeared or that any stock was subscribed for or proposed to be subscribed for at that time and place or at any other time, and asserts that no one paid any money or offered to pay any to any of the commissioners on account of any stock to be subscribed for, and that</p> <p>“ thereupon, it was agreed between Bigelow, Purves, Cahill, Jr., Hamm, Partridge and others of the commissioners who were present that they would make an effort to acquire the powers, privileges and franchises proffered by the said act and to organize the said company by each agreeing to subscribe for one hundred shares of stock of the said company and each giving to Cahill, who was the treasurer of the commissioners, a check for five hundred dollars, upon the understanding and agreement then and there made between them that none of said checks should be paid or presented for payment, and that the sums of money therein mentioned should not be collected, and that the said parties agreeing to subscribe for said stock should not he called upon or required to pay the same or any of them, or any part thereof, or any sum of money whatever for or on account of the stock of said company until their further consent so to do should be given, but that the said checks should be held by the said Cahill until it could be ascertained whether or not capital could be obtained and a practical plan devised for constructing and operating-water works in pursuance of said charter; that said checks should be returned to the persons who gave them in case efforts for the purpose were not successful, and that, in the meantime, a tentative organization of the said company should be made.”</p> <p>The answer then proceeds to state that the eleven corporators did each give to Cahill a check for $500, drawn upon banks, and took his receipt for the same, but that none of them signed any agreement to take stock in the company or bound themselves in any way to do so, nor was any written agreement to take stock in said company or legal subscriptions thereto made or effected y that Cahill held the checks in pursuance of the agreement, and did not collect or attempt to collect the same or any of them, nor did any of the commissioners nor any of the directors collect or receive, nor did any of the parties giving their checks pay or offer to pay to Cahill or to any of the commissioners, any of the moneys for or on account of the stock of the company, and that no payment was ever made.</p> <p>The answer further alleges that efforts were made to procure capital for the company, which were unsuccessful, and thereupon the enterprise was given up by common consent, the checks were returned to the persons who gave them, the efforts to organize the company wholly and altogether abandoned, and no further efforts were made from that time on until June, 1891, and that, prior to June, 1891, no organization of the company was ever effected or directors or officers elected, and that no sums of money were ever paid to any of the commissioners or any kind of property purchased, nor was any business transacted by or in the name of the Union 'Water Company, nor was any stock or certificate of stock of or in the name of the company ever issued; that no place of business was opened or kept, no mains were laid or water supplied or work of any kind done; that there was no visible sign of the existence of such a corporation, either in fact or in law, in the state.</p> <p>The answer then sets out the notice calling for subscriptions of stock, signed by six of the commissioners, for the 15th of July, 1891, “and in pursuance thereof the said commissioners opened books to receive subscriptions to the capital stock of the said company, and kept the said books open for that purpose for two hours,” at the time and place mentioned in the notice; that the defendants severally subscribed for divers shares of stock and paid $5 on each share, and that the total number of shares subscribed was five hundred and seven, and the amount of money paid, $2,535; that then, by agreement of all the subscribers, they met and appointed the defendants Hamm, Cahill, Sr., Cahill, Jr., Kean, Jr., 'Voorhees, Maguire and Bergen directors of the company, in the manner directed by the act; that the directors met and elected Mr. Kean president, Mr. Hamm treasurer and Mr. Yoorhees secretary. The answer alleges corporate-acts done under this organization, and does not deny that it. intends to do what the bill charges in that behalf.</p> <p>The bill was filed on the 12th of October, 1891.</p>

<p>1. A married woman in New Jersey is bound and estopped by all her acts done within the scope of the enabling acts, to the'Same extent and in the same manner as a single woman.</p> <p>2. A wife made her promissory note to her husband’s order and delivered it to Mm to enable Mm to procure its discount and with the proceeds pay Ms own debt. The husband applied for its discount to a bank official who had notice that the note was made without consideration and for discount, but did not have notice that the proceeds were to be applied for the husband's benefit. The bank official offered to discount it by a check to the wifeis order, which the husband accepted and afterwards procured his wife to endorse and deliver it to him, she knowing that it was the proceeds of the discount of her note.— Held, that the wife was estopped from setting up against the bank that she was a mere surety on the note.</p> <p>3. Complainant recovered judgment at law by default on a promissorymote made by a wife to the order of and endorsed by her husband. The wife applied for and obtained an order opening the judgment with unrestricted leave to plead. She pleaded, first, that she occupied the position of surety on the note and was a married woman; second, that it was a contract made with her husband, and therefore void at law. Complainant then filed its bill in this court for relief and injunction against setting up these defences at law. Upon the trial of the issues raised this court found the defence of suretyship not sustained. — Held, (1) Complainant was justified in coming to this court, and was, in effect, compelled to come here by defendant’s plea that the contract was between husband and wife. (2) Complainant having established his case here on the merits, defendant should-not he permitted to litigate it again in the law courts.</p>

On demurrer to bill. This is a bill to foreclose, by mortgagee against mortgagor, based on an ordinary legal mortgage, duly signed and sealed by the defendant, conveying certain lands to secure the debt. The-bill contains no allegation that any other person besides the mortgagor claims any lien upon, or to have any interest in, the mortgaged premises.

<p>Interpleader. On final hearing on pleadings and oral proofs.</p> <p>The pleadings and evidence disclosed the following facts: Paul Tulane, late of Princeton, was, in his lifetime, a friend and benefactor of two sisters, residents of the same town, Mrs. Adelaide C. Clifton and Miss Marien Passage, having, for years before his death, made them a yearly allowance in cash. On the 15th of May, 1873, he deposited with the late Honorable Caleb S. Green, of Trenton, three coupon bonds of the State of New Jersey, known as war bonds, of $1,000 each, payable to bearer and maturing on the 1st day of January, 1893, numbered, respectively, 2Q, 21 and 22, and at the same time handed to Jndge Green a paper signed by himself, in these words:</p> <p>“ Having deposited in the hands of Caleb S. Green three §1,000 bonds of the State of New Jersey, I hereby authorize and direct him, in case of my death, to deliver said bonds to Miss Marien Passage and her sister, Adelaide Clifton, to be equally divided between them. Dated May 15, 1873. Paul Tulake.’’</p> <p>There is no evidence to show that, at the date of the deposit. Mr. Tulane was sick or in any peril or fear of immediate death,</p> <p>During Mr. Tulane’s lifetime, either Judge Green or his son, who was his law partner, cut the interest coupons from these bonds and paid the proceeds to Mr. Tulane. He died March 27th, 1887. The bonds still remained in Judge Green’s hands and came into the hands of his executrix, the complainant, at his death, in 1891. Both Mrs. Adelaide Clifton and Miss Passage survived Mr. Tulane, but each died testate before Judge Green. The defendant Mrs. Frances E. Clifton was named executrix of the will of each. The administrators of Mr. Tulane, and Mrs. E. P. Clifton as executrix of Mrs. Adelaide Clifton and of Miss Passage, each claimed the bonds from Judge Green in his lifetime, and after his death, from his executrix, whereupon she filed her bill against them, praying that she might be permitted to deliver the bonds into the custody of the court and be discharged, and that the contending parties might interplead &c. The contestants answered, setting forth their respective claims, and the cause was brought to hearing at one time on all the issues. After hearing the evidence an order was made at once for the delivery into the custody of the court of these bonds, which was done, and the court took time to consider the rights of the defendants.</p>

Bill for injunction and other relief. On final hearing on the pleadings and oral proofs.

<p>The S. Wagon Company, having manufactured unsuccessfully during the summer of 1887, on money advanced by B.,who owned a half interest, B., for the company, agreed to sell all its property except some wagons to P., the other principal owner, P. to pay the debts, amounting to §3,100, and to give B. certain stocks as collateral, whatever might be realized on sale of said stock, or otherwise, in money, to be applied to said debts. P. kept on the business with some further small advances from B., but being pressed on judgments of other creditors, amounting to some §400, agreed with B. that if B. would pay these he would turn him over all his property to secure him, B., saying that it was understood that all he had advanced was to be so secured. He had then advanced §3,649.36. P. assigned him absolutely the stocks held as collateral and some patent interests. B. agreed, when all past and future advances, with interest and expenses, should be repaid, to reconvey to P. all of said property not then disposed of and all surplus proceeds of sale, and paid the judgments. P. continued in possession for two years longer, and B. made him further advances, so that, in December, 1889, his whole claim -was over §5,000. He had then realized out of the property transferred, §225, besides something on wagons sold, and later he sold the rest of the property for §1,000, which, it appeared, was the best price obtainable. P.’s receiver contended, however, that the only moneys B. was to repay himself under the agreement were the amounts of the judgments and costs, about §450. — Held, that even if the prior-advances were not secured by that agreement, subsequent ones were, and as these amounted to §1,400, and B. had only received §1,225 and something from the sale of wagons, he had not been repaid, and P.’s receiver had no-claim on him for the property transferred.</p>

<p>1. In a suit to annul a marriage on the ground that, at the time of its celebration, defendant had a wife living, an admission of such previous marriage in the answer is sufficient to establish it when corroborated by the production of evidence of a certified copy of the record- thereof in the bureau of vital statistics and of the record of a suit commenced by defendant against the person alleged to have been the other party to the previous marriage, to annul it.</p> <p>2. Where a first marriage is void, owing to the fact that one of the parties had a spouse living at the time of its celebration, the validity of a second marriage is not impaired thereby, though there has been no decree annulling it.</p>

<p>In a suit to compel a transfer of a share of stock, it appeared that after the individuals comprising the firm of Scarlett & Scarlett had organized a corporation under the name of “ Scarlett & Scarlett, Incorporated,” to carry on the firm business, J., one of the incorporators, and a member of the' late firm, on April 11th, 1892, bought, in the name of Scarlett & Scarlett, stock of the Newark Land and Improvement Company, and gave notes in payment therefor. At that time he had no authority to buy stock for “ Scarlett & Scarlett, Incorporated.” On April 23d, defendant agreed to become a director of the Newark Land and Improvement Company on condition that he should become the absolute owner of at least one share of stock. It was then agreed to sell to defendant a share of stock owned by W. Thereupon, J. surrendered a certificate which he had taken in the name of Scarlett & Scarlett, caused it to be canceled, and a certificate of the share in suit to be issued in the name of, and delivered to, defendant. Defendant did not see the certificate which had been surrendered, and knew nothing about the ownership of it. Immediate payment of the price of the share was waived, but defendant became liable for it, and afterwards tendered it. On April 30th, J. reported, at a meeting of the directors of “Scarlett & Scarlett, Incorporated,” that he had purchased for that company the stock which he had taken in the name of Scarlett & Scarlett, and the purchase was ratified. — Held, that the ratification did not affect defendant’s title to the share in suit, as against “ Scarlett & Scarlett, Incorporated,” as defendant was a bona fide purchaser before the ratification.</p>

<p>On petition after decree.</p>

<p>1. Refusal of a husband, to live with his wife is not extreme cruelty, in the absence of proof that it has had, or tends to have, a serious effect on her health.</p> <p>2. A divorce on the ground of the husband’s alleged cruelty will not be granted where it appears that the parties lived together for many years after the acts of cruelty were charged to have been committed, and they were of such a nature that, owing to the age of the parties, there is little probability, or even possibility, that they would be committed again, as it is a preventive remedy to protect the life and health of the wife, and not to punish the husband.</p>

<p>On order to show cause.</p>

<p>On application for leave to file supplemental petition.</p>

<p>1. In the determination of an appeal from a decree of an orphans court, based upon the verdict of a jury, which denies probate to a will, the prerogative court will, notwithstanding the act relative to the effect of a jury trial in proceedings touching the probate of wills, approved February 22d, 1892 (P. L. of 1892 p. 28), pass de novo upon the question whether the will shall be .admitted to probate, and, in so doing, will review the entire evidence adduced in the court helow and take additional proofs, if, in its discretion, it shall appear to it proper to do so.</p> <p>2. The proofs, in the case considered, did not justify the verdict in the circuit and adjudication by the decree of the orphans court, that the testator lacked testamentary capacity and that the will was the product of undue influence.</p> <p>3. The charges of an expert, produced by one of the parties to a will contest, without previous authority therefor from the court, will not be allowed' from the estate of the decedent.</p>

Nancy W. Halsted, of the township of Kearny, in the county of Hudson, died in May, 1891, leaving a will to which there were three codicils.

<p>The fact that administrators or executors have filed a joint final account*, and that a certain balance has been adjudged by the orphans court to be due thereon, is not, per se, conclusive evidence as to their joint liability for the amount so settled.</p>

<p>1. A contractor, for erecting a building under a contract which stipulated for payment upon the certificate of an architect that the work was completed according to contract, gave complainants an order payable out of the amount to become due, which the owner accepted and agreed to pay on condition that the work was approved by himself and his'architect. The contractor abandoned the work before completion. The debt for which the order was given was for materials furnished for the erection of the building, and the complainants, at the request of the contractor, released his right to a lien on the building. — Held, on demurrer to the bill, that a suit in equity by the complainants against the owner would not lie to compel the payment of the order, the complainants’ remedy (if any) being by a suit at law upon the contract contained in the acceptance of the order.</p> <p>2. Assuming that the order given by the contractor was an equitable assignment, its effect was simply to subrogate the assignee to the rights of the assignor under the contract. Such an assignment would not enure to deprive the other party to the contract of the benefit and advantage of the terms and conditions contained in it.</p> <p>3. The building contract contained a provision that if the contractor, at any time during the progress of the work, should refuse or neglect to supply a sufficiency of materials or workmen, the owner should have power to provide materials or workmen after three clays’ notice to the contractor, and deduct the expense from the contract price. — Held that, if the contractor abandoned, the work before completion, neither the contractor nor his assignee could, require the owner to complete the work and compel him to account for the balance of the contract price after deducting the cost of completing the work.</p>

<p>In case due notice of the final hearing of a cause in the court of chancery was given, and the cause was accordingly heard, but one of the parties did not appear and was not represented at the hearing, and the decree was made in his absence, he cannot appeal from such decree to this court.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney in Hughes v. Harms.</p>

<p>1. Since an assignee for the benefit of creditors may attack previous fraudulent transfers of property made by his assignor, when such property is necessary to satisfy the demands of creditors, he owes a duty to certain creditors to make such an attack, and, upon failure to perform such duty, a creditor to whom it is due may file a bill in his own name to avoid such transfers.</p> <p>2. A creditor may thus supplant the assignee and assert his rights when the latter, by his connection with the fraud or otherwise, is disabled from asserting them, or when, upon proper notice, he has neglected or refused to perform his duty in that regard.</p> <p>3. A mere request to take proceedings to set aside transfers of the assignor’s property, will be insufficient. He must be informed of facts tending to show the transfers fraudulent and a reasonable ground for contest.</p> <p>4. If, upon request, the assignee declines to act on the ground that there are no funds to make the contest, it should appear, to justify a creditor' in supplanting the assignee in the litigation, that his excuse was false or that creditors had offered to supply the necessary funds or indemnify against loss.</p> <p>5. The creditor who may demand performance of the assignee’s duty and upon his default may act, is one who has presented his claim against the assignor, to the assignee, in the manner provided by the statute.</p> <p>6. The orders appealed from were made upon affidavits. — Meld, that the affidavits did not sufficiently establish the material allegations of fraud contained in the bill, to justify the appointment of a receiver and the peremptory sale of the disputed property.</p>

<p>1. It is well-settled law that an assignee of a non-negotiable or matured debt-takes it subject to all the equitable defences that the original debtor may have.</p> <p>2. One who is about to become the assignee of such a debt must at his peril find out from the debtor whether there are any equitable sets-offs or defences.</p> <p>S. William L. Bull held in trust for I-Iarry F. Worthington a certain mortgage made by Fisher & Furman. Fisher & Furman became sureties for said Harry F. Worthington on an .attachment bond and took as indemnity an assignment of his interest in said mortgage, and by force of proceedings in said attachment suit were forced to pay the judgment rendered therein against said Harry F. Worthington. Subsequently William Jj. Bull and others (executors of Henry B. Worthington) purchased of Harry F. Worthington his interest in said mortgage and took from him an assignment of all his interest therein. Upon a foreclosure of said mortgage by Bull, trustee, for the benefit of the last-mentioned assignees — -Held, that Fisher & Furman, the mortgagors, were entitled in equity to set off the amount paid by them for said Harry F. Worthington under their prior assignment.</p>

<p>The will of Rufus Story conveyed all the rest and residue of his estate to his executors, in trust, to sell, dispose of and convey the same, with a further trust to divide the estate -into four shares for each of his daughters. The trustees were directed to convey to each of three daughters one share absolutely and the other was to be held and invested and kept invested by them during the life of his fourth daughter, who was to be paid the income arising therefrom, and on her death to be conveyed to her issue. — Held that, under the terms of his will, the power to sell continued after the division of the estate into the four shares, and that a bill would lie to enforce specific performance of an agreement between the trustees and a purchaser of a lot which was a part of the land of the testator, thus set apart for the fourth daughter for her life.</p>

<p>On appeal from a decree of the ordinary, whose opinion is reported in Gordon’s Case, 5 Dick. Ch. Rep. 397.</p>

<p>1. Complainant and defendant agreed to build houses for sale, the latter to advance the money and the former to contribute his skill and time as superintendent, each to have half of the profits after sale. — Held that, independently of the question whether a partnership existed between the parties, complainant was entitled to maintain an action for an accounting.</p> <p>2. Defendant had no right to charge complainant with the land used for building purposes at a greater price than its original cost, though it was bought with money furnished by him, and the title was taken in his name.</p> <p>3. Complainant -was not entitled to have the value of land bought for building purposes, but not used, brought into the account, since he had no interest in the land, but only in the profits arising from buildings erected thereon.</p> <p>4. It appearing without contradiction that defendant was to furnish all the capital, but was not to be allowed interest till the completion of each particular building operation, he was not entitled to a credit for. interest on a pui> chase-money mortgage given by him for land till the building thereon was completed.</p>

<p>1. A party to an arbitration agreement may estop himself from questioning the jurisdiction of the arbitrators, even in a case where they have clearly exceeded their jurisdiction, by appearing before them, admitting that he is indebted to the other party, and agreeing that the arbitrators shall take such debt into consideration and award how it shall be discharged.</p> <p>2. But an arbitration agreement cannot be changed or altered unless the minds of the parties meet and mutually assent to the change or alteration.</p>

<p>On appeal from an order of the chancellor, whose opinion is reported in Morris and Essex Railroad Co. et al. v. Newark Passenger Railway Co., 6 Dick. Ch. Rep. 379.</p>

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

<p>On exception to master’s report advising that a petition for-divorce be dismissed.</p>

<p>1. L. D. C., by his will, directed liis executors to sell his real estate and invest the sum of §20,000 for the benefit of his wife for her life, the principal, at the death of the wife, to be divided in the same manner as the residue of his estate. He then devised and bequeathed the residue of his estate to his six children, share and share alike, adding this language: “ In case any of my said children die before receiving their share, leaving issue, then I give, devise and bequeath to such issue the share the parent would have taken if. living.”</p> <p>2. F. H. C., a son, survived his father, but died without issue before he came into actual possession of any part of his father’s estate. — Held, that he-took a vested estate in one-sixth part of the residue of his father’s property, which passes by his will.</p>

<p>On bill to construe will, answer for infant defendants and proofs.</p>

<p>1. To state a case of strict interpleader, the complainant must show that conflicting claims are made against him by two or more persons for the same thing; that he has no interest in the subject-matter of their controversy, and that the title to the thing in dispute is in some of the hostile claimants, but he cannot tell which; and all the relief he can ask is that, on the surrender of the thing in dispute, his liability shall cease, and that thereupon the hostile claimants be required to settle their dispute among themselves.</p> <p>2. But under a bill in the nature of a bill of interpleader the complainant has a right to ask for active affirmative relief; as, for example, where there is a dispute between two or more persons as to which is entitled to a mortgage debt, the mortgagor may file a bill to procure a decree, adjudging which of the hostile claimants is entitled to the debt, and that, on its payment, the mortgage shall be surrendered to him for cancellation.</p> <p>3. And so where a house has been erected for a landowner under a written contract, which has been filed, and before the payment of the whole of the contract price, a dispute arises between the contractor and a person who has furnished material, which has been used in the construction of the house, as to who is entitled to the balance of the contract price, in consequence of which the owner is placed in a position where he may be compelled to pay the same debt twice, the owner may file a bill, in the nature of a bill of interpleader, to have it determined to whom he shall pay the balance remaining in his hands, and that, on such payment being made, all right of lien against his house and land shall become extinct.</p>

On application for an injunction. Heard on bill and affidavits and answer and affidavits and cross-bill and replication.

On application for an injunction. Heard on bill and affidavits and answer and affidavits and depositions taken pursuant to-an order of the court.

<p>On motion to dismiss bill.</p>

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

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

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

<p>The rule of the common law that husband and wife are to be regarded as one person has not been abrogated in New Jersey, and the statute of limitations will not run against the claims of the wife for money belonging to her received by the husband during his lifetime. Such debts, in their relation to the passage of time, must be regulated altogether on an equitable basis.</p>

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

<p>1. A corrupt bargaining between one of the parties to an exchange of lands •and the agent of the other, renders such exchange voidable at the instance of :the party aggrieved.</p> <p>2. While the law seems to be firmly settled that fraud without damage to the party complaining affords no ground of relief even .in equity, yet both law and equity have a most tender regard for the rights of the complaining party, growing out of the peculiar relations existing between principal and agent and ■cestui que trust and trustee, so that where any abuse of such relation is discovered the complaining party is entitled to be relieved, whether any actual damage has been established or not; it matters not that there is no fraud meditated and no injury done. The rule is not intended to be remedial of actual wrong, but preventive of the possibility of it.</p> <p>3. A party who obtains possession of property by corruptly bargaining with the agent of the owner, c'an be compelled to surrender what he has thus ■acquired.</p> <p>4. A party who asks for the rescission of a contract upon the ground of fraud, and still has the possession of that which he received under the contract, at the time of the discovery of the fraud, is obliged to retain such possession that he may return it or offer to return it before or at the time of filing his bill.</p> <p>5. If, for any cause, after the fraud is discovered, a party finds himself unable to retain possession of property, and he intends to ask for a rescission of the contract, it is his duty to inform his adversary of his inability and give him an opportunity to take control of it.</p> <p>6. A party asking the rescission of a contract upon the ground of fraud, will only be required to restore so much of the property in specie as he reasonably can, and the full consideration for so much of it as he may have disposed of before discovering the fraud.</p> <p>7. A deerée dismissing a bill of complaint, after a full hearing upon the merits, is an effectual bar to the complainant and to all who claim under him, so long as such decree is unreversed.</p> <p>8. The purchaser of the title of lands sold by virtue of an execution issued upon a decree obtained in a suit for the foreclosure of a mortgage which embraces said lands, takes all the title which the mortgagor had and which was conveyed by such mortgage.</p> <p>9. A grantee' from a bona fide purchaser stands in the same position as tliegrantor, and will be equally favored by a chancellor, although affected with notice at the time of the grant.</p> <p>10. Although a party with notice cannot take title with impunity directly, bu.t may take such title at the hand of an innocent third party, yet if he himself has participated in the fraud, or was acting in the capacity of a trustee, then he will be liable, notwithstanding the title be purged of the fraud as to-strangers.</p>

<p>The certificate of incorporation of a trading company organized under the General Corporation act, together with the by-laws adopted at the time and as a part of its organization — Held, under the circumstances of this case, to constitute a contract between the stockholders which cannot be altered by legislative authority unless with the consent of all the stockholders or in the manner provided in the certificate and by-laws.</p>

<p>The mere fact that a husband, by frequent acts of,adultery, justified his wife «i leaving him, does not render him guilty of the statutory offence of desertion.</p>

<p>1. Suit for specific performance of a contract dealing with both real and personal estate, brought by one party against both the personal representative and the heir-at-law, who is also sole next of kin of the other party to the contract. On the trial the heir-at-law was offered and sworn as a witness, and testified to transactions with, and statements by, the deceased party. — Held, that thereby the complainant was made a competent witness under the act of February 25th, 1880 (P. L. of 1880 p. 52), and the canon laid down in Me~ Cartin v. MaCartin, 18 Stem. JEq. 265.</p> <p>2. Value of testimony of experts in handwriting discussed.</p>

<p>Final hearing on the pleadings and evidence taken orally before the court.</p> <p>These causes were heard together, but were not consolidated. The contest is between two corporations as to their respective rights to lay street railway tracks in a certain street or streets in the township of Stockton, in the county of Camden.</p> <p>Stockton township adjoins the city of Camden on the northeast, and is divided from it by the waters of Cooper’s creek, a-tidal and navigable stream, which runs in a northwesterly direction and empties into the eastern channel of the Delaware-river at a point opposite Petty’s island, near where the shoreline makes a sharp curve from an easterly to a northeasterly direction.</p> <p>The streets in question are — first, State street, running in Stockton township from Cooper’s -creek, at first in a direction nearly east and west, and then, after bending a few degrees to the south, further into the township. It is a continuation of State street, in the city of Camden, which commences at a point near the Vine street and Shackamaxon ferry terminus at Cooper’s point, on the Delaware river, and runs, in a direction nearly due east, to the bridge over Cooper’s creek, traversing, in its course, the northern part of the city. The other street is now named Fourth street, in the villages of Pavonia and Cramer’s Hill, in Stockton township, and extends from a point near the Federal street or Moorestown turnpike bridge over Cooper’s creek, in a northeasterly direction, and nearly parallel with the general shore-line of the Delaware, to the northern boundary of the township at Pensauken creek. It was formerly called River road, and in its northerly section is still known by that name. It crosses State street, in Stockton township, at a point about twenty-seven hundred feet easterly from the State street bridge over Cooper’s creek, and, in connection with State street, forms a thoroughfare not only from the Vine street and Shackamaxon ferry terminus at Cooper’s point to the northerly boundary of Stockton township, but also from the Federal street and Market street ferry termini, which are situate three-fourths of a mile south of the Vine street ferry. Along its route, north of State street, two growing suburban towns are situate, viz., Pavonia. and Cramer’s Hill.</p> <p>The "West Jersey Traction Company was organized by certificate executed May 11th, 1893, and-filed on May 13th, 1893,. in the office of the clerk of the county of Camden and also in the-office of the secretary of state, under the provisions of the act. entitled “An act to authorize the formation of traction companies-for the construction and operation of street railways or railroads operated as street railways, and to regulate the same,” approved March 14th, 1893. P. L. of 1893 p. SOS.</p> <p>The Camden Horse Railroad Company was created by, and organized under, a special act of the legislature, approved March 23d, 1866 (P. L. of 1866 p. 640), and the supplement thereto, approved April 2d, 1868 (P. L. of 1868 p. 688), and a further supplement, approved March 11th, 1872 (P. L. of 1878 p. 618), and prior to the passage of the act of March 14th, 1893, had constructed and was operating several lines of street railway in the city of Camden, among others, one from the Federal street ferry terminus, through Federal street, across Cooper’s creek and through Stockton township to the city of Merchantville; another from the Market street ferry terminus, up Market street to the junction of Federal and Market streets; another from near the Vine street and Shackamaxon ferry terminus, out Slate street to Fifth street, in the city of Camden, which Fifth street, in Camden, must not be confounded with.Fifth street in Stockton township. Between the date of the passage of the act of March 14th, 1893, and the 21st of June, 1893, it had extended its street railway on State street, in Camden, from Fifth street to Cooper’s creek, and had commenced the laying down of a railway in State street, in Stockton township, between Cooper’s creek and Fourth street, in Stockton township.</p> <p>On the 21st of June, 1893, the West Jersey company filed its bill in this court, setting out its organization under the act of March 14th, 1893, and that it had paid $25,000 to the state treasurer, and had filed in the office of the secretary of state, in pursuance of the sixth section of the act of March 14th, 1893, a map and description of six new railway routes proposed to be constructed by it in different counties in this state, one of which included State street, in the township of Stockton, between Cooper’s creek and Fourth street or River road, and also included Fourth street and River road, from State street to Pensauken creek. It also set out that it had obtained, on the 19th day of June, 1893, from the township committee of Stockton township, a formal consent for its use of those streets for its railway, and thereby claimed to have the exclusive right to construct its line of railway in those streets under the sixth section of the last-mentioned act.</p> <p>It further set out the incorporation and organization of the ■Camden Horse Railroad Company and its operation under the ■several acts above mentioned; and it alleged that the Camden company had not, up to the 15th of May., 1893, used or occupied, in any way, either State street or River road or Fourth street, in Stockton township; and that having constructed one line of street railway from Federal street ferry, along Federal street and its continuation to the Moorestown turnpike through Stockton township, it had exhausted its power to build street railways outside of the city of Camden, and had no right to lay •a street railway in either State street or Fpurth or River road, in Stockton township; and it further alleged that the Camden company was engaged, at the time of presenting the bill, in laying ■rails and ties and constructing a street railway in State street, between Cooper’s creek and Fourth street, in Stockton township, •and prayed that it might be restrained from occupying either of those streets with its proposed railway.</p> <p>That bill was presented to the chancellor in person on the 21st of June, 1893, and he thereupon made an<order that the •Camden company show cause, before Vice-Chancellor Pitney, on Monday, the 3d day of July then next, at the chancery chambers at Camden, why an injunction should not issue, but gave no »»■ terim restraint. On the 3d of July, 1893, the'hearing of that order was, by consent of counsel, postponed until the 24th day of July. ■On that day the Camden Horse Railroad Company presented an answer, by which it set up its incorporation and organization and the construction of various street railways in Camden city and their extension from time to time and operation, and that previous to 1890 it had constructed and was operating a railway from the Vine street and Shackamaxon ferry terminus, through State street to Fifth street, in Camden, and had then planned an extension of its railway on State street, in Camden, and its continuation in Stockton township out to the River road or Fourth .street, and along that street or road northward; that it had purchased, in 1890, a large plot of land on Tenth and State streets, in Camden, for car' storage for said proposed line, and had. bought land in Stockton township, on the River road, several miles north of State street, and had purchased large quantities of railway material and entered into contracts with regard thereto-prior to the passage of the act of 1893.</p> <p>It further set out that in pursuance of this plan of extension of its railway line into the township of Stockton, it procured, on the 12th of May, 1892, from the township committee of Stockton township, a consent and permission in writing to use any and all the roads, streets and highways within the corporate limits of the township, and to erect poles and wires along the same for the purpose of conveying and supplying electricity to motors for the propulsion of street cars. It thus based its right to lay down the rails and build the railway in question as well on the supplement to its charter of March 11th, 1872 (P. L. of 1878, p. 518),. as upon the general act of April 5th, 1878 (Per. 8up. p. 368 ¶ 86), and its right to use electricity which it proposed to use, upon the act of March 6th, 1886 (P. L. of 1886 p. 69; Rev. Sup. p. 369 ¶ 30). It further alleged that previous to June 21st it had extended its road along State street, in Camden, from Fifth street to CoopeFs creek, and that at the time of the filing of the bill it was actually engaged in laying its track along State ' street, in Stockton township, between Cooper’s creek and Fourth street.</p> <p>On these pleadings the vice-chancellor, on July 24th, discharged the order made by the chancellor on June 21st, and the-Camden company proceeded with its work, finished its track from State street to Fourth street, put it in running order and commenced to run cars upon it by horse-power, the connection across the bridge over Cooper’s Creek not having been as yet completed. In the first days of the month of August it distributed the ties and rails along Fourth street, in Stockton township, between State street and Cooper avenue, a distance of three thousand feet, and commenced to make excavations and to lay the ties and place thereon the rails, and on Saturday, August 12th, had laid ties over the greater part of the space last mentioned and placed one rail thereon.</p> <p>On Saturday, the 12th of August, the Camden company was served with a notice dated August 11th, signed by the three members of the township .committee of Stockton township, requiring it to remove its tracks laid on River road or Fourth-street, north from State street, in Stockton township, and forth-. with to place the road in the same condition as it was before the-tracks were laid; and further, that if the tracks were not forthwith removed the same would be taken up and the company prosecuted according to law. Uo attention was paid to this notice, and on Monday morning, August 14th, the Camden company was proceeding with the construction of its road when its-workmen were met by a large force of men, apparently under the immediate direction of the township committee and of a person known as commissioner of streets, and were forcibly prevented from proceeding with the work. It thereupon presented to Vice-Chancellor Green, who was that day sitting at Camden, a bill against the three members of the township committee, setting out some of the facts hereinbefore stated, and asking for an injunction against the township committee. The vice-chancellor at once advised an order to show cause, on the 5th of September, why an injunction should not issue pursuant to the prayer oí the bill, and, in the meantime, restrained the defendants, the three-township committeemen and their confederates, agents and servants, from interfering with the railroad or the work thereon-done by the Camden company. That order was served immediately on the same day, August 14th, on the township committee and other people apparently in their employ on the ground,, but they paid no attention to it, and it then appeared that they were employed, or claimed to be employed, by the traction company and not by the township committee.</p> <p>The Camden company then prepared and presented to the-chancellor in person, on the 17th of August, its second bill, referring to the previous bill, and being in the' nature of a supplement thereto, and setting out the refusal of the persons on the-ground to obey the restraining order of Vice-Chancellor Green, and charged the West Jersey company with being the active-power behind the persons who were obstructing them in the construction of their road and who were tearing up and destroying it. Thereupon, at the suggestion of the chancellor, the bill was amended by making the township committee parties, and also-■by amending the prayer so that, in addition to praying that the defendants might be restrained from further interference with the Camden company’s work, the respective rights and privileges of the Camden company and the West Jersey company in the premises may be. ascertained and settled by the decree of this court. The chancellor thereupon made an order that the traction ■company show cause before the court on the 5th of September, at Camden, why an injunction should not issue against it according to the prayer of the bill, with interim restraint, and with this clause added:</p> <p>“And looking to the end that the court may be called upon to regulate the use of the highway by the complainant and defendant companies, it is further •ordered that the said companies do both, until further order herein, desist and refrain from proceeding with the construction of their respective roads on said Fourth street.”</p> <p>The traction company filed its answer to this bill on the 5th of September, and on that day Vice-Chancellor Pitney made an order continuing the hearing till the 18th of September, and on that day the cause was further postponed, upon the suggestion of the court that the causes should be referred to a vice-chancellor and brought to hearing speedily. This was done and the causes brought to a final hearing before Vice-Chancellor Pitney.</p> <p>The answer of the traction company to the bill of the Camden company attacked the consent of May 12th, 1892, granted by the township committee of Stockton township to the Camden company, on the ground, as alleged in the answer, that the consent was not given by the committee sitting as such, but that the signatures of each had been procured separately and without any meeting or consultation or decision of the committee as such sitting together.</p> <p>The answer of the township of Stockton is an echo of the answer of the railway company.</p>

<p>Bequest of a sum of money to trustees in trust to pay tlie interest to two married daughters of the testator during their lives, and at their deaths to divide the principal among their children, share and share alike. Each daughter-had children at testator’s death and each bore a child after testator’s death, which died in its mother’s lifetime —Held, (1) The after-born children took vested interests in the fund, which went to the next of kin of each. (2) The fund is divisible among the children per capita.</p>

<p>Heard on bill and answer.</p> <p>The bill .is brought for the specific performance of a contract for the sale of land by the testatrix to the defendant Feeney, on-the 26th of December, 1891, by which the testatrix, in consideration of $3,000, agreed to convey to the defendant Feeney a tract of land in Jersey City, of which she was the owner, the-conveyance to be completed on the 26th of January, 1892. The contract was signed by each of the parties.</p> <p>Three days after the date of this agreement Mrs. -Coles died testate of a will, by the first item of which she devised</p> <p>“so much of my real estate situate in Jersey City in the State of New Jersey derived by me from my son William F. Coles lately deceased as at my decease-shall remain unsold and shall not then be improved by dwelling-houses or other-buildings.”</p> <p>This devise covers the land covered by the contract. She then made divers other bequests of money and devises of land other than that in Jersey City. The eighth item provided that</p> <p>“in so far as may be needful or expedient for payment of the foregoing pecuniary legacies my executors are authorized to use the proceeds of any real estate of which I may die seized excepting such as is specifically devised under the provisions of the first, sixth, seventh and eleventh items of my will.”</p> <p>By the twelfth item she disposes of the residue of her property to certain persons therein named. By the thirteenth item •she appointed her executors and used this language:</p> <p>“And I authorize my said executors or such of them as shall qualify and act and the survivor and survivors of them in their discretion and as soon as by them deemed or found to be necessary or advisable for payment of legacies for division or distribution or for other purposes of this my will to sell and convey at public or private sale any and all real estate of which I may die seized other than such as is specifically devised by the first, sixth, seventh and elev-> enth items of this my will.”</p> <p>The bill alleges that shortly after the will was proven the executors tendered a deed to Mr. Feeney for the tract of land in ■question and demanded payment of the purchase-money, and that he declined, not 'on the ground that the deed was not tendered at the time fixed by the contract, but because the executors were unable to give a perfect title.</p> <p>The defendant Feeney answers, and bases his refusal to complete the purchase solely on the ground of the inability of the executors to make a complete title in the absence of the devisees of the lot in question, -who, being numerous, were not made parties.</p>

<p>On demurrer to bill for want of parties.</p>

An inquisition has been returned into this court finding that Sarah H. Devausney was, at the time of taking the inquisition, a lunatic and of unsound mind, so that she is incapable of the-government of herself, her lands, tenements, goods and chattels, and that she has been in the same state of lunacy for the space-of twenty-five years last past, and that, at the time of the said inquisition, she was entitled to a one equal seventh part of the-personal estate of her father,…

<p>Testatrix’s direction to her executor to sell her house and lot in N., and oht ■of the proceeds pay certain legacies, empowers him, in the light of evidence that she owned no realty except a house and lot-in B., a suburb, of N., to sell and make title to the B. property.</p>

<p>A subordinate lodge of an order, the aim of which is “to unite fraternally all acceptable persons,” may appropriate, for the support of a lodge to be organized under the same jurisdiction, part of a fund raised among its members by contribution, out of which its general expenses and sick benefits are payable, if such appropriation is not prohibited by its by-laws or the general laws of the order.</p>

<p>In an action to foreclose a mortgage executed- by complainant’s husband and-another, and assigned to complainant, complainant testified that her husband, mutilated it without' her consent, and by mistake. The mortgagors subsequently executed an agreement reciting that the mortgage had been mutilated through mistake, and declaring that no advantage would be taken of it, and" thereafter interest was regularly paid on it. — Held, that it was yalid as against a judgment creditor of a subsequent owner of the premises mortgaged, though. the agreement was not recorded, the mortgage never having been canceled of record.</p>

<p>1. Where a wife and her husband, who was a lawyer-, executed a deed of trust-of her separate property by which he acquired an advantage, the burden is on him to show that she thoroughly understood its 'effect, and where it does not appear that she had independent advice, and the deed was complicated, and a cursox-y reading of it would disclose the scheme of the wife to have been that if neither wife nor husband disposed of the property by will, it should go to the-heirs-at-law of the wife; and such reading would not give the unprofessional mind an idea that, by the words “ or the survivor of them” in the power of revocation, it gave the husband powex', on the wife’s death, to have the fee-vested in him and diverted from her heirs; it is not to be presumed that slxeunderstood its effect from the fact tlxat the acknowledging officer has certified that he made known its contents to hex-. When a power of revocation in such deed is limited in its exercise to the joint action of the husband and wife, the infex-ence is strengthened that the deed was executed by tlxe wife without thoroughly understanding its effect and under a mistake. When these elements-exist such a deed will not be allowed to stand against the heirs of the wife, both she and her husband having died without disposing of the property by • will, and he having after her death revoked the trusts and had the fee vested ¡ in him.</p> <p>2. A suit to set aside a deed of trust by reason of mistake, being purely of equitable cogxxizance, is not affected by the statute of limitations.</p> <p>3. A suit by the heir of a mai'ried woman to set aside a deed of tnist of her - sepai'ate property by reason of a mistake, which gave the husband power after ■ her death to have the fee vested in him and divei'ted from her heirs, is not barred by acquiescence and laches, except as to such part of the property as. he has sold to bona fide purchasers, where the husband was entitled to the possession of the property for life by the curtesy, and the heir lived with and trusted the husband, and he told her that his wife had given him the property, and promised her that, if she outlived him, she would see that he had done her no wrong, and she brought the suit three months after his death.</p>

<p>In an action for divorce by the wife for cruel treatment, where the only-cruelty charged is the use of abusive and filthy language, proof of gross abuse-of marital rights is not available.</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in First Baptist Church of Hoboken v. Syms, 6 Dick. Ch. Rep. S6S.</p>

<p>On appeal from a decree dismissing complainant’s bill, advised by Vice-Chancellor Van Fleet, whose opinion is reported in National Docks &c. Railway Co. v. United New Jersey Railroad, Co., 7 Dick. Ch. Rep. 366.</p>

<p>1. The dismissal of an original bill does not involve the dismissal of theeross-bill, so far as the latter seeks relief beyond what is necessary to maintain a defence against the complainant’s claim.</p> <p>2. A preliminary injunction is properly refused when there exists no-reasonable ground for apprehending that the injury, against which the injunction is sought, will be attempted.</p>

<p>On appeal from a decree in Prospect Brewing Co. v. Costello, which adjudges that a conveyance from a husband to his wife be set aside as against the judgment creditor of the husband.</p>

<p>1. The jurisdiction acquired by the courts of one state over parties to an action incidentally affecting lands in another state,-is a jurisdiction purely in personam. The decree or judgment in such action cannot have any extraterritorial force in rem.</p> <p>2. A decree or judgment of the courts of one state requiring and directing lands in another state to be conveyed or charged or otherwise disposed of, may he enforced by their process and when enforced or submitted to, by the execution of a conveyance, mortgage or other instrument as directed, such conveyance, mortgage or other instrument is effective in the situs rei, but not the decree.</p> <p>3. The courts of the situs of lands are not bound by the decree or judgment of the courts of another state affecting such lands made in an action in which their jurisdiction is purely in personam, for their jurisdiction being limited their decree and judgment can extend no further. Full faith and credit will be given to such decrees and judgments under section 1 of article 4 of the constitution of the United States, by according to them a force merely personal upon the parties and enforceable alone by their process.</p> <p>4. Such decrees and judgments do not create a personal obligation upon the party which the courts of another state are bound to compel him to perform; at the most, they impose a duty, the performance of which may be enforced by the process of the courts pronouncing them.</p> <p>5. The courts of the situs of lands cannot be compelled to issue their decrees to enforce the process of courts of another state, or the performance of acts required by the decree of such courts, ancillary to the relief thereby granted, affecting such lands.</p> <p>6. A court of New York having jurisdiction over -the action and parties dissolved the bonds of matrimony between them, fixed the amount and directed the payment of alimony, and ordered the husband to execute and deliver to the wife a mortgage upon lands in New Jersey to secure the payment of the alimony.- — Held, that a bill founded upon the order requiring such a mortgage to be given and praying a decree that the mortgage should be given in conformity to the order, disclosed no equity and was properly dismissed.</p>

<p>Two things are indispensably requisite to render an absolute transfer a mortgage — first, the transfer must be made to secure the payment of a debt or the performance of a duty; and, second, a right of redemption must exist in the mortgagor.</p>

<p>In an action against husband and wife to enforce the specific performance of a contract to convey land, a-plea by the wife that complainant refused to carry out the agreement unless she executed a like agreement, which she did, without consideration and solely to answer for the default of her husband in carrying out said agreement, is a good defence to an action against her under the statute (Mev. tit. “Married Women” \ 5) providing that no married woman shall be liable on a promise to answer for the default of another.</p>

<p>On appeal from a decree advised by Vice-Chancellor Green, whose opinion is reported in Beckett v. Heston, Ip Dick. Ch. Rep. 510.</p>

<p>On appeal from an order advised by Vice-Chancellor Bird, whose opinion is reported in Bookwalter Steel and Iron Company’s Case, 6 Dieh. Ch. Rep. 71.</p>

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet, whose, opinion is reported in Winters v. Earl, 7 Dick. Ch. Rep. 58.</p>

<p>On appeal from an order granting an injunction advised by Vice-Chancellor Van Fleet, whose opinion is reported in Van Horn v. Coogan, 7 Dick. Ch. Rep. 880.</p>

<p>On appeal from an order advised by Vice-Chancellor Van Fleet, whose opinion is reported in National Books Railway Co. v. Pennsylvania R. R. Co., 7 Bick. Ch. Rep. 58.</p>

On bill to construe will &c., answer and proofs. George W. Helme died on the 13th day of June, 1893, leaving him surviving his widow, Margaret A. Helme, and three children — Adeline H., the wife of Charles G. Strater; Olivia A., the wife of John W. Herbert, Jr., and George A, Helme. Each of. these children has issue, who, with their parents, are parties to this suit.

<p>1. Where a receiver has been appointed for an insolvent corporation and has taken possession of its assets and exercises its franchises, he is a necessary party to a petition by the state for an injunction to restrain the further exercise of any franchise or transaction,'of any business of the company by him, because of the corporation’s non-payment of the state franchise tax.</p> <p>2. Where an insolvent corporation is of a public character, its property and work being dependent upon the franchise and the public being interested in the continuance of its work, its receiver must pay the state’s franchise' tax until the franchise of the corporation shall be sold.</p> <p>3. Where an insolvent corporation is of a mere private character and it is not the duty of the receiver to preserve the franchise, and he does not, in fact, exercise the franchise, he will not be obliged to pay any other franchise tax than that which was due at the time of his appointment, unless he shall realize from the assets of the company more than sufficient to pay its debts and the expenses of the receivership, and then, before distributing to stockholders, he will pay any franchise tax that may have been assessed subsequent to his appointment.</p> <p>4. If a receiver of a private insolvent corporation shall continue its business, using its franchise, he shall pay the franchise .tax assessed while he continues the business, using the franchise.</p>

<p>1. A creditor of a decedent whose claim was not in due time presented to ~the executors, and who is bound by a decree of the orphans court, in pursuance of the statute (Rev. p. 764 § 6S), may nevertheless maintain an action against the executors for payment of a ratable portion of his debt from any legacy or legacies which shall not have been paid over by the executors or have been attached in their hands.</p> <p>2. Such a creditor may go into equity for discovery of such assets in the hands of the executors, and, when there, will be permitted to establish the validity of his claim and have it satisfied so far as the assets discovered may lawfully be resorted to.</p> <p>3. When an executor delivers a specific legacy, bequeathed to one for life and to another absolutely after the life estate, to the life tenant, taking a proper receipt or inventory for the taker in remainder, he is discharged from any further duty or liability with reference to the legacy.</p> <p>4. Where there is an absolute gift of property for an indefinite time, with unlimited power of alienation, a gift over of that which remains undisposed of at the death of the person to whom the property is given, is void.</p>

On application for the appointment of a receiver, heard on bill and affidavits on the part of the complainants and affidavits on the part of the defendants.

<p>1. When trust funds are fraudulently misappropriated in paying off a mortgage, the cestui que trust has a right to have the debt incurred by the misappropriation charged on the land which has been relieved from encumbrance by the fraudulent use of his money.</p> <p>2. No person can derive a benefit from a misappropriation of trust funds, unless he shows that he acted in good faith and paid full value.</p> <p>3. The separate creditor of a member of a firm stands, as to his debtor’s interest in the partnership property, in the place of his debtor, and can take nothing which his debtor is not entitled to.</p> <p>4. Each partner has an equitable lien on the partnership property for the purpose of having it applied to the payment of the partnership debts, and also on the whole surplus assets for his share thereof.</p> <p>5. This lien will support a suit against a judgment creditor of one of the copartners' for the purpose of having land, standing in the name of the judgment debtor, declared to be partnership assets.</p> <p>6. When it can be done rationally, the law always presumes in favor of . honesty and against fraud.</p> <p>7. When a trustee mingles his own funds with trust funds, in an undistinguishable mass, and then takes from the mass a part for his own use, the part taken will be presumed to have been his own and not that which he held as trustee.</p> <p>8. A decree of dismissal in a prior suit will not bar a second, between the same parties, founded on a cause of action which was neither tried nor triablein the first.</p>

<p>1. When a husband deserts or abandons his wife, without making provision for her support, and a third person advances money to her, which she uses to obtain necessaries, an equitable debt is thereby created, which the person making the advance may enforce by suit in equity.</p> <p>2. In such a case it can make no difference to the husband whether he is held liable for money or for the price of necessaries, so long as no recovery can be had for money, unless it is shown that it has actually been spent for necessaries.</p> <p>3. This rule rests entirely on the fault of the husband, and cannot be applied to a case where the husband’s failure in duty is the result of misfortune.</p>

<p>On hearing under decree of interpleader, and on answers and facts admitted.</p>

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

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

<p>On order to show cause &c.</p>

<p>On bill to abate a nuisance.</p>

<p>1. When the real estate of an infant is converted into money by the order of the court, and the infant dies before attaining his majority, the fund will be treated as real estate and descend to the heirs-at-law of the infant.</p> <p>2. Where there is a compulsory conversion of real estate, as in the exercise of the right or power of eminent domain, without the consent or against the will of the owner of the fee, being mi juris or of disposable capacity, he must either recognize it or manifest a willingness to accept it as personalty to effect a conversion.</p> <p>3. Where all tenants in common of real estate, who are of age, undertake to convey the fee, including the interest of one not of age, and the portion of the purchase-money supposed to represent the interest of the latter be paid to his. guardian, as to the adults the conversion is out and out, and the fund so held by the guardian will be treated as personal estate, as between the adults and the legal personal representatives of the infant, in case of his death.</p>

<p>On final hearing.</p>

<p>1. When it appears that the personal estate has been exhausted and that there is a fund in this court, the proceeds of the sale of real estate, an executor may directly apply by petition for an order for so much of the said moneys .as may he necessary to pay the balance of the debts due from the estate of which he is executor.</p> <p>2. One of two executors may apply to this court for moneys in the hands of the court, to pay undisputed claims when any sufficient reason appears for not joining the other executor.</p> <p>3. The rule is that, where a testator directs the payment of his debts and funeral expenses, and specifically devises portions of his real estate, and then gives and devises all the rest and residue of his real and personal estate whatsoever and wheresoever to two of his children, one of whom dies in his lifetime, in consequence of which the devise lapsed and descended to the heir-at-law, it not appearing that the testator left any personal estate, all of the lands included in the said residuary devise, as well those taken by the surviving devisee as those which descend in consequence of the death of .the other devisee, are equally liable to the discharge of the debts and costs and expenses incurred in the settlement of the estate.</p> <p>4. Commissions for services will not be allowed one of the tenants in common when it appears by proceedings in equity that he claims the entire fee and also that he rents the premises in his own name.</p>

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

In foreclosure. On motion to issue execution on decree for deficiency. On the 30th of October, 1872, John J. Mickle, being the owner of certain premises situate in the county of Monmouth, mortgaged them to Eliza H. Cope to secure the sum of $2,000 in one year, with interest. Subsequently, on the 24th of February, 1874, Mickle, together with his wife, conveyed the mortgaged premises to Georgiana Manley in consideration of the sum of $4,500.

Final hearing on pleadings and proofs. This is an ordinary bill to foreclose a purchase-money bond and mortgage given by the defendants, Mrs. Christie and her husband, to complainant’s testator upon the conveyance of the mortgaged premises by the latter to the former. They are dated May 1st, 1890, and their due execution and delivery are not disputed.

This is, in effect, a bill for specific performance. The facts are as follows. The defendant, on August 20th, 1889, was induced by one De Arnaud to convey to him twenty-six building lots in East Orange, at a grossly inadequate price, and shortly afterward employed complainant, a solicitor of this court, to bring suit to recover them, which resulted in her favor. Peet v. De Arnaud, 2 Dick. Ch. Pep. 502.

In foreclosure. On exceptions to master’s report upon divers-petitions for surplus money. The surplus money arises from the sale under foreclosure of certain lands in Monmouth county of which Mrs. Mary M.. O’Rourke, late of New York, died seized in November, 1890,. subject to the mortgage which had been foreclosed.

In foreclosure. This is a motion, on behalf of the complainants, for an order upon their solicitors herein to pay over to them a portion of the .money raised by the sale of the mortgaged premises, which was retained by the solicitors as compensation for their services in this suit. They received their taxed costs in full, but claimed the additional sum retained as a collection fee.

<p>On petition of Katharine Volk et al. for surplus money.</p>

<p>To defeat an open, notorious, exclusive and unquestioned possession of lands for fifty years, on the ground that the party in possession held as the trustee of an express trust, it must clearly appear that the possession was taken and held while the trust was subsisting. When the court is asked to presume such conditions, they must not only be deducible from some of the facts, but must be equally consistent with others. Such presumption will not be made where a presumption is also raised, consistent with all known facts, that the trust has been extinguished.</p>

<p>1. The widow and beneficiary of a member of a beneficial order, on the payment to her of §500, released the order from the payment of her claim of §3,000 upon the false representation of the officers of such order that deceased was not in good standing at the time of his death and that she had no claim whatever against it. — Held, that on proof of such a state of facts, a court of equity will set the release aside.</p> <p>2. The fact that the widow had the benefit of the advice of competent counsel does not deprive her of relief, if the counsel was also misinformed by such officers.</p>

<p>1. Under an agreement for the sale of lands the purchaser is entitled to a ■deed describing the land in the words of the agreement, without any limitations other than those therein agreed upon.</p> <p>2. Where a contract to convey is part of an agreement to lease the premises for a term of years, specific performance will not be refused on the ground that the contract is unilateral.</p> <p>3. Specific performance of an agreement to convey lands, reserving to the ■grantor a right of way, will not be refused because the location of such way is uncertain, the grantor having the right to designate it in the deed.</p>

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

<p>1. The existence of influence which arises from unlawful or immoral relations, operating on a testator when his will is made, does not raise a presumption against the instrument, but will be regarded as a significant fact, which calls for a close and suspicious scrutiny.</p> <p>2. The law permits a man to leave all his property, which he may, by will, dispose of, to his mistress, and to ignore his wife, if he does so with free, sound and disposing mind, pursuant to the formalities which the law prescribes. .</p>

<p>On application to fix and settle fees of register.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Union Water Co. v. Kean, 7 Dick. Ch. Rep. 111.</p>

<p>On appeal from a decree advised by Vice-Chancellor Green, whose opinion is reported in Lawson v. Carson, 5 Piole. Ch. Pep. 870.</p>

<p>1. The Ott & Brewer Company was incorporated under the laws of this ■state, with three directors. Our statute provides that, to transact business, there must be at least three directors elected, and that when a director ceases to be a stockholder he shall also cease to be a director. Bell, one of the directors, made an assignment for the benefit of creditors, after which the other two directors executed chattel mortgages to three of the appellants, who loaned money to the corporation at the same time, and took the mortgages without notice that Bell had ceased to be a stockholder. — Held that, as to third parties, dealing in good faith with the company, without notice of any infirmity in the title of Bell as a director, he must be regarded as a director defacto, and thus the company had, when the security was given, three directors as. required by law.</p> <p>2. The fact that no notice was given to Bell of the meeting of directors, at which the mortgage was authorized to be executed, does not affect its validity. That is a subject into which the mortgagee was not bound to examine.</p> <p>3. The receiver of an insolvent corporation cannot successfully assail a mortgage given by the corporation because it was executed for an antecedent debt..</p>

<p>' Any person appearing to be interested in the disposition of the property of a decedent, may file exceptions to the account of the executor or administrator ■of the deceased.</p>

<p>On appeal from an order advised by Vice-Chancellor Pitney, whose opinion is reported in Mundy v. Sohaniz, 7 Diok. Ch. Hep. 7^.</p>