Volume 53 — New Jersey Equity Reports

On bill for instruction to executor, answers and proofs. 'William White died in 1866, seized of real estate situate in the city of Paterson. The portions of his will which are pertinent to the questions now presented are in this language: “Second. It is my will and I do direct that my beloved wife, Maria, shall use, occupy, possess and enjoy all the residue of my estate both real and personal whatsoever and wheresoever during her natural life. “Third.

<p>In partition. On application for the payment of interest on-legacies charged upon the land.</p>

<p>1. W., the holder of a mortgage np.on the lands of T., delivered to T. a writen memorandum as follows': “I agree with you to assign your * * * mortgage *' * * to any party you may desire, in consideration of receiving from you or them the sum of $250. * * * I do this in consideration of the taxes, assessments and charges you have already paid and now due on the property.”</p> <p>2. The administrator of W. repeatedly called upon T. to pay the $250 and take an assignment of the mortgage. T. expressed a willingness to do so, but failed to produce the money.' After T. had had ample opportunity to pay the money and take the assignment, the administrator assigned the mortgage to I., who brought suit to foreclose it. Thereupon T. tendered I. $250 and demanded. an assignment of the mortgage. — Held, that the memorandum, regarded as a promise to assign, was not supported by valuable consideration, and that, regarded as an offer to assign, it was so conditioned that the only binding acceptance of the offer was the payment or tender of the $250, and that,, as the offer was voluntary, it could be withdrawn at any time before acceptance as .aforesaid.</p>

<p>1. A contract for the sale of land contained this provision: “ Said party of the second part [O’Connor] shall have possession of said premises on the 14th day of May, 1894, and in the event of the failure of said parties of the first part to deliver the deed at the time and in the manner hex-einafter referred to, the said parties of the first part hereby agree to repay to said party of the second part the said sum of $250, heretofox-e paid as part of the considex-ation money, and in addition thereto, such sum, not exceeding $1,250, as said party of the second part shall have paid upon the examination or guarantee of the title to said premises, or in the repair, improvement or furnishing of the building or ground, or the survey thereof, or shall have in any way-incurred or expended in the preparation for the purchase of and taking of title to said premises, not exceeding the said sum of $1,250, such payment to be accepted by said party of the second part as liquidated damages for any breach of this agreement by the said parties of the first part; and in event of the failure of said parties of the first part so to deliver said deed at the time herein stated, said party of the second part hereby agrees to surrender possession of said premises within fifteen days from June 26th, 1894, to James Tyrrell, one of said parties of the first part hereto. And said party of the second part shall not, under any circumstances, be held to be liable for any rental for the occupancy of said premises.”</p> <p>2. The parties of the first part arbitrarily refused to deliver the deed —Held, that the repayment, stipulated as liquidated damages, was not provided for the case of such a breach of the contract, but for failure after bona fide effort to make title to the pux-chaser; hence, in the absence of the appearance of such failure, that the question whether equity will specifically enforce the performance of a contract in which liqxxidated damages are agreed upon for its breach, does not arise.</p>

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

<p>On final hearing.</p>

<p>1. Although it appears by the first part of the seventieth section of the act respecting corporations that either the insolvency of a corporation or its suspension of business for want of funds to carry on the same supported by proper proof, is ground for the court to institute an inquiry preliminary to the issuing of an injunction and the appointment of a receiver, nevertheless by the subsequent provisions of the same section the insolvency and the resumption of business are so collectively presented that it must appear to the satisfaction of the court that the corporation is not only insolvent but that it is not about to-resume its business with safety to the public and advantage to the stockholders before it can issue an injunction or appoint a receiver.</p> <p>2. The suspension of business by a corporation, even though it does not appear that it is about to resume in a short time, when it is not clearly established that the corporation is insolvent, does not afford sufficient warrant for the court to assume jurisdiction, insolvency being regarded as an absolutely essential ingredient or fact both in pleading and proof.</p>

<p>New matter by way of defence, which requires the introduction of new parties, cannot be set up by way of cross-bill.</p>

<p>1. A cross-bill being a means of defence, the allegations therein must relate to or be so immediately connected with the matter set up in and the issues made by the original bill, as necessarily to be involved in the decree pronounced under the original bill.</p> <p>2. Matters which may be the foundation of a suit by a defendant, but which are wholly independent of the claims made against him by the complainant, can only be litigated by an original bill and not by cross-bill.</p>

<p>A judgment creditor who delays twenty years after obtaining his judgment :and after knowledge of the alleged fraud, filing his bill to set aside a conveyance made by the debtor to his wife, on the ground of fraud, is guilty of laches.</p>

<p>In case, after a general act upon the subject of usury, an act is passed imposing a different penalty for a single county, and still later the general act is amended, in which no reference whatever is made to the special or local act, the latter being radically inconsistent with the special or local act and by negative terms covering the whole of the subject-matter, operates as a repeal of such special or local act.</p>

<p>On final hearing.</p>

<p>A father promised his son that if the latter would live with and work for him during the father’s lifetime, he would devise to him certain lands, and about eighteen months before he died made his will accordingly. Afterwards, and nine days before he died, being very feeble in mind and body, and laboring under a delusion as to his son’s conduct, he made a voluntary conveyance of a part of the lands to two of his grandchildren, who were in personal attendance upon him. The son fully performed the conditions of his father’s promise. — Held, the conveyance must be set aside as against the son.</p>

<p>Motion for injunction.</p>

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

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

<p>The act of March 27th, 1878 {Rev. Sup. p. %67), relative to inchoate dower,, does not apply to cases where the marriage from which the right to dowersprings was contracted, and the lands in which it is claimed vested in possession in the husband, before the x>assage of the act.</p>

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

<p>On appeal from a decree of distribution made by the orphans-court of Mercer county.</p>

<p>Before a will can be admitted to probate, it must appear, among other things, that it was declared by the testator to be his will, in the presence of two witnesses present at the same time. The recital of that fact in an attestation clause subscribed by the witnesses is prima fade evidence of the performance of that requisite. If there be no such attestation clause, the burden is upon the proponent of the will to prove such declaration to the satisfaction of the tribunal passing upon the question.</p>

Potter, 7 Dick. Ch. Rep. 664. Iii the latter part of the year 1886 or 1887, Samuel Dally, of the township of Wood bridge, then about seventy-eight years old, being about to make his will, asked his son-in-law, Lewis C. Potter, to make choice for his wife, Anna M. Potter, among the several parcels into which he had divided his real estate for distribution among his children by will.

<p>1. The owner of land put a mortgage upon it and then sold and conveyed the equity of redemption. In a foreclosure bill it was claimed that, by force of his purchase of the property so encumbered, the grantee of the mortgagor became liable for the deficiency in case a sale of the premises did not produce a sum sufficient to pay the claim of the complainant. — Held, that a decree establishing such liability in the grantee, although erroneous, was conclusive so long as it remained unreversed.</p> <p>2. On petition by the mortgagor, such foreclosure bill was permitted to be amended in order to show that when he conveyed the equity of redemption his grantee stipulated to pay the money secured by the mortgage, and that such fact had been omitted from the bill from inadvertence.</p>

<p>1. Every person has the right of access to the public records of the county clerk’s office, without the payment of fees to the clerk, to examine any title in which he is interested, subject to reasonable rules and regulations.</p> <p>2. The respondent has the same right of access to the records when employed to examine and guarantee the title to a particular piece of property, but has not the right to occupy the office of the clerk for the purpose of making an abstract of the records in order to set up and establish a rival business to the clerk.</p> <p>3. Mandamus is the proper remedy to enforce such right.</p>

<p>On appeal from decrees advised by Vice-Chancellor Pitney,, whose opinion is reported in West Jersey Traction Co. v. Camden Horse Railroad, Co., 7 Dick. Ch. Rep. 452.</p>

Mrs. Rosetta E. Higbie, late of Cranford, died April 11th, 1892, leaving a last will and testament, dated November 10th, 1888, which was duly proved before the surrogate of Union county, by the complainants, the executors therein named.

p. 925), and its supplements, known as the General Railroad law. That which it is to accomplish is a direct connection, as its name indicates, between two railroads — the National Docks and the New Jersey Junction — within the corporate limits of the city •of Jersey City. Its route is, approximately, a straight line between points upon 'the railroads designated, about half a mile apart.

Ou appeal from a decree advised by Vice-Chancellor Pitney, who delivered the following opinion: This is a bill filed by a trustee asking the direction of the •court in the disposition of the trust property.

Sewell became a stockholder and thereby eligible to be elected a director, and so-clothed with authority to participate in the management of… Held: in case the first mortgage was put in execution and there-was a surplus, and there was a deficiency in the real estate mortgage, I would be a loser to a considerable amount; and that it was the understanding and the desire of the Capital Cracker Company to protect me as fully as possible; and that there was no provision in that…

Perrine, advised by Vice-Chancellor Van Fleet, who delivered the following opinion: The facts on which the complainant relies to show that the defendants have willfully disobeyed the order of the court are not disputed. It is unnecessary, therefore, to consider whether or not the petition is properly verified. The subpoena in this case was served on the defendants on the 15th day of February, 1893, and returned on the 28th of the same month.

The complainants claim by virtue of certain judgments and executions and sale thereunder, and the defendant by virtue of two chattel mortgages. One of these mortgages is dated and recorded long before the judgments were obtained and the other afterwards. The complainants also claim by virtue of two bills of sale, which were executed intermediate the execution of the chattel mortgages.

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Swift v. Pidcock, 6 Dick. Ch. Rep. 405.</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in Dawson v. Schaefer, 7 Dick. Ch. Rep. 341.</p>

<p>On order to show cause why an injunction should not issue. Heard on bill and affidavits.</p>

On motion to dissolve injunction. Heard on bill, answers and copy of contract, used at the argument by consent of counsel.,

<p>Where, in virtue of a contract between a street railway company and a municipality, intended to have been made pursuant to law, the motive power of the street railway was changed from horses to electricity supplied through overhead wires supported by poles, at a considerable expense to the railway company, and has been operated accordingly for more than two years by the lessee of the railway company, and the municipality, now denying the legality of the contract upon its part and also the authority of the lessee of the railway company to operate the railway under the contract or otherwise, and insisting that the contract is not duly performed by the railway company and its assignee, threatens to remove the poles and wires, regarding them as nuisances in the street, which removal will inflict not only irreparable injury upon the railway company and its lessee in their business, but will also work great inconvenience to the public, the proposed action will be restrained upon the application of the railway company and its lessee, in order that the status quo may be preserved until the final hearing of the cause, provided that the court shall be satisfied that the contract is being duly performed upon the part of the applicants.</p>

On bill for partition and answer thereto. The bill seeks the partition or sale of four parcels of land' of which John McDermott died seized on the 21st of October, 1885.

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

<p>A bill wliicli rests on the allegation that the complainant’s intestate gave a ■certificate of stock to the defendant in consideration for her living thereafter in illicit relations with him, and which prays for a surrender of such certifi•cate, will be stricken out on motion, because it shows that the contract was illegal and immoral.</p>

<p>1. A request by tbe mortgagor to a third person, to write to the mortgagee-concerning a mortgage which he holds against the farm of the mortgagor, saying that he had made arrangements to pay it off, and telling him to produce it in person, or to send it to some friend, and in that case he would remit by check, is such an acknowledgment as to prevent the operation of the statute-of limitations.</p> <p>2. - An acknowledgment of a liability made to a third person with the understanding that such acknowledgment should be conveyed to the creditor, will) be as binding upon the debtor as if it were made to the creditor directly.</p>

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

<p>On motion to fix certain fees.</p>

<p>1. If a husband purchases land with his own money, and voluntarily pro- • cures the title to be conveyed to his wife, the presumption is that he intended it as a gift to her, and no trust for him will result.</p> <p>2. A writing intended to operate as a will, but which fails as such by reason of imperfect execution, cannot operate as a declaration of trust unless it contains on its face a clear and distinct declaration that the title to the land has been, as a matter of fact from the beginning, held in trust by the would-be testator for the benefit of the devisee named.</p>

<p>On demurrer to bill.</p> <p>The defendants are the widow and four children of Robert B. Borland, late a resident of this state, who died insolvent July 15th, 1893. The complainant is a creditor of the deceased by judgment recovered in the State of New York, and the object of the bill is to compel the defendants to pay complainant’s judgment out of certain moneys received by them from certain life-insurance companies, in payment of certain policies of insurance taken out by the deceased upon his life for the benefit of his-wife and children, the annual premiums upon which were paid by him out of his own moneys mostly after the recovery of complainant’s judgment.</p> <p>The principal question raised by the demurrer is the general one as to the merits of complainant’s claim.</p> <p>More specifically stated, the. facts set out in the bill and' admitted by the demurrer are as follows:</p> <p>On November 11th, 1886, complainant recovered in the-supreme court of New York a judgment against Borland, then a resident of New Jersey, for $6,309.54, for which amount Borland was then indebted to complainant. No part of this indebtedness has ever been paid, and the whole, with interest, still remains due. Btifand died July, 1893, insolvent to the extent, of ninety-seven per cent, of his indebtedness.</p> <p>1. In December, 1886, after the recovery of complainant’s-, judgment, Borland procured from the Mutual Benefit Life Asso«iation of New York a policy upon his life for $5,000, in favor ■of his four children, defendants.</p> <p>2. On the same day he procured from the same company a like policy for $5,000, in favor of his wife, Louisa, defendant.</p> <p>3. In 1886, and after incurring the indebtedness to complainant merged in the judgment, exact date not given, Borland took ■out a like policy from the Mutual Life Insurance Company of New York for $30,000, in favor of his wife, Louisa, defendant.</p> <p>These several policies were subject to the payment of certain annual premiums, the amount of which is not stated in the bill, but it is there alleged that they amount to over $1,400 a year, and were paid by Borland out of his own means and money up to his death.</p> <p>4. In the year 1890, exact date not given, Borland took out another policy of insurance upon his life from the Mutual Life Insurance Company of New York for $5,000, in favor of his wife, Louisa, the annual premium upon which was $293, which was paid by him each year, until he died, out of his own money ■and means.</p> <p>5. In the year 1891, exact date not stated, Borland took out" another policy upon his life from the Mutual Life Insurance Company of New York for $5,000, in favor of his wife, the •annual premium upon which was $308, which was paid by him to the company out of his own money and means each year until' he died.</p> <p>In addition to the foregoing five policies, Borland had taken ■out, in 1876, from the Mutual Life Insurance Company of New York, a policy upon his life for $5,000, in favor of his four children above named, the annual premium upon which was $161, which was paid by him each year up to his death, as well before as after the recovery of complainant’s judgment, out of his own means and money.</p> <p>At his death two of his children were minors, and letters of .guardianship of them were granted by the surrogate of Hudson ■county to his widow, the defendant Louisa.</p> <p>The bill charges that these annual payments of premiums were «o paid by Borland for the purpose of placing so much of his means beyond the reach of his creditors, and for the purpose of defrauding the complainant, and that he during the whole period was insolvent.</p> <p>The bill further alleges that all these policies have been paid in full — those in favor of Mrs. Borland to her in her own right, those in favor of the children in part to her as guardian and in. part to those who were of age.</p> <p>It further alleges that Borland died testate of a will by -which he gave his wife his whole estate and appointed her executrix y that she proved such will before the surrogate of Hudson county, and undertook the burthen of its execution; that he left no real estate whatever, and personal estate to the value of $1,350 only; that preferred claims against the estate, amounting to $878, were presented to the executrix, and other claims (whether including complainant’s or not is not distinctly stated), amounting to $13,457.72, have been duly presented, under oath, to the executrix, so that the estate will not pay above three per cent, of the general indebtedness, including complainant’s claim.</p> <p>Mrs. Borland is made a party defendant as executrix as well as individually, but no decree is prayed against her as executrix.</p>

<p>1. An infant party to a suit cannot appoint an attorney or solicitor to appear- and represent him therein. He can only appear by next friend when plaintiff, or guardian ad litem when defendant.</p> <p>2. The authority of a solicitor, or a guardian ad litem, or next friend of an-infant defendant, to represent the infant in the conduct of the cause, expires with the minority of the infant; and an agreement by such a solicitor with-the solicitor of the opposite party to let the suit sleep, made after the majority of the former infant and without his authority, will not bind him.</p> <p>3. A suit in which complainant has taken no steps in six years, during which time all the defendants and their witnesses have died, will be dismissed' for want of prosecution.</p>

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

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

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

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

On final hearing on bill, answer of defendants Strong & Sons,, replication and decree pro eonfesso against defendant Skirm,. receiver.

<p>On bill for partition. Hearing on bill and answer.</p>

The order appealed from, discharged an order to show cause why sufficient lands of Mary E. Connolly, deceased intestate, should not be sold for the payment of her debts, which was made upon the petition of Robert S. Gould, the administrator of her-estate, to which petition was annexed an account which exhibits-that Mrs. Connolly did not leave any personal- property, and that the only claim against her estate is a bill, presented by J. B..

<p>The rule which obtains in the orphans court, that guardianship of an infant’s person will not be awarded to one person and the guardianship of his estate to another, should control the prerogative court in the exercise of its jurisdiction unless the application of the rule would lead to great hardship.</p>

<p>On appeal from an order of the chancellor, whose opinion is reported in Dodson v. Sevars, 7 Dick. Ch. Rep. 611.</p>

Roe, who delivered the following opinion. Held: upon the proofs, to have been entirely innocent of any intention to mislead the company’s creditors, and quite ignorant that withholding her mortgage from record might have that effect. But such innocence and ignorance cannot help her in the face of the statute.

On appeal and cross-appeal from a decree of the chancellor, •dated February 11th, 1895, in Brown v. Riverside Bridge and Iron Works, an insolvent corporation, on the application of the receiver of said corporation.

<p>'On appeal and cross-appeal from a decree advised by Vice-"Chancellor Van Fleet, whose opinion is reported in Standish v. Babcock, 7 Dick. Ch. Rep. 628.</p>

<p>1. Gross inadequacy of price, coupled with proof that owing to a misapprehension as to the time of sale a purchaser who was willing to give a greatly enhanced price for the property could have been had, are sufficient reasons for ordering a resale of mortgaged premises which had been bought in by the mortgagee.</p> <p>2. In this case, the court directed that the order of the chancellor confirming the sale be affirmed unless a prospective purchaser should enter into bond to bid the enhanced price in the event of a resale.</p>

<p>1. Where a farmer, seventy years of age, residing on a farm about five miles from the city of Paterson, with an invalid wife and daughter, and another daughter who was about to marry and leave home, proposed to his eldest son, who was engaged in business in Paterson, that if that son and his wife would take up their residence at the farm and there make a home for the parents for the parents’ lives, that he would give the son the farm under specified limitations, and the son accepted the proposition, and thereafter, with his wife, moved to the farm, and, to the detriment of his business and by the labor of his wife and himself, fully,, performed upon his part the agreement made by the proposition and its acceptance — Held, that at the instance of the son, equity will compel the performance of the agreement upon the part .of the father.</p> <p>2. It is essential to the validity of such an agreement that it shall be mutual and, as well, definite and certain both as to its terms and subject-matter.</p> <p>3. Such an agreement must be clearly proved and it must also be plainly established that the performance relied upon was referable to and consequent upon the agreement, for the purpose of carrying it into effect.</p>

On demurrer to bill. The bill alleges that the complainant’s husband, George W. Sell, prior to the 6th of March, 1884, was indebted to the defendant in the sum of |800, and that the complainant proposed to him that he should secure such indebtedness by taking out life insurance policies on his life, to the aggregate amount of $8,500, in the Northwestern Masonic Aid Association, payable to Ida Steller, the defendant’s wife, who was a sister of George W. Sell, as a beneficiary…

On motion to strike supplemental information and bill from the files. The original bill and information was filed by the attorney-general in behalf of the State of New Jersey, and by the relators for themselves and other cigarette jobbers in New Jersey.

On motion to open and amend decree of distribution in partition. The partition is of lands which were the property of John Murphy, deceased, who died on the 29th day of March, 1892, leaving a will dated on the 5th of September, 1873, with a codicil thereto dated on the 28th of March, 1892. By the will, among other provisions, he made this: “Second.

On motion to strike out cross-bill under Rule 213. The bill is filed by the Mutual Benefit Life Insurance Company to foreclose a $2,000 mortgage made to it by the rector, wardens and vestrymen of Grace Church, in Westfield,-New Jersey, on the 14th of June 1875, which encumbers a plot of ground upon 'which a church edifice has been erected.

<p>1. A street railway company having, by grant recognized by the provisions of the act of March 16th, 1893 (P. L. of 189$ p. $42), the right to construct and operate its railway upon a turnpike, is not exempt from the performance of the conditions precedent to the construction of its railway which are required by the act of May 16th, 1894.</p> <p>2. The attorney-general and abutting property-owners, relators and complainants with him, are entitled to a preliminary injunction to restrain the construction of such a street railway, if it shall not comply with those conditions precedent.</p>

<p>At the suit of individual stockholders of a corporation, a transaction of the directors, which, though intra vires and lawful in itself, is executed by them and the person with whom they deal, in pursuance of a scheme to make and perpetuate themselves directors in the control of the company, and is conspicuously unwise and injurious to the corporation and its stockholders, will be set aside in equity.</p>

<p>1. The claim of an attaching creditor, a citizen of New Jersey, will be preferred to that of the assignee, a resident of another state, who claims under an assignment for the benefit of creditors, and consequently to one who claims under such assignee by virtue of a bona fide purchase subsequent to the levying of the attachment.</p> <p>2. Wires and insulators which are used in forming and completing the connection between an electric light and power plant and the dwellings, stores and other public places, for the purpose of conveying or transmitting light and heat thereto, are fixtures within the provisions of the Mechanics’ Lien law.</p>

<p>1. A stockholder of a water company who stands by while the inhabitants of the city, which is supplied with water by his company, call and hold an election to authorize the common council to purchase .the plant of the company, and also while negotiations for such purpose are carried on for more than two years, during which time proceedings for condemnation of said plant are taken and carried through to judgment without objection by him, will be held guilty of laches in equity in the absence of fraud.</p> <p>2. In the exercise of the right of eminent domain, the moving party may withdraw therefrom at any time before final judgment, but a resolution directing an attorney to ask leave of the court to withdraw is not conclusive until the court has acted upon the application.</p> <p>3. Private corporations organized and establishing plants for the purpose of supplying a city with water, are subject, under the statute, to the exercise of the right or power of eminent domain, and cities in which they are located may, in case of failure to agree upon the consideration to be paid therefor, proceed to condemn such plants for the purpose of supplying the city with water.</p> <p>4. No fraud appearing, and the legislature conferring the right to a water company to sell and convey, and, in case of failure to agree, also conferring the right upon the city to condemn such proceedings of condemnation confirmed by á legal tribunal, cannot be annulled by a court of chancery at the instance of a stockholder.</p> <p>5. This court does not review judgments at law on the ground of irregularity.</p>

<p>Hearing on order to show cause &c.</p>

<p>1. The statute respecting oaths which directs that “when any oath required to be taken in any suit or legal proceeding in this state or for any lawful purpose whatever * * * when taken out of this state may be taken before any notary public of the state, territory, nation, kingdom or country in which the same shall be taken, or before any officer who may be authorized by the laws of this state to take the acknowledgment of deeds in such state, territory, nation, kingdom or country and a recital that he is such notary or officer in the jurat or certificate of such oath, affirmation or affidavit and his official designation annexed to his signature and attested under his official seal will be sufficient proof that the person before whom the same is taken is such notary or officer,” is not complied with in the absence of a substantial certification by the notary that he is such notary public, as well as to affix his official designation to the signature of his name and also annex thereto his official seal.</p> <p>2. An imperfection in the jurat to an affidavit which is required to be annexed to a chattel mortgage does not render it ineffectual as notice, according to the provisions of our registration laws, when it is acknowledged as deeds of conveyance of real estate are required to be acknowledged and recorded.</p> <p>3. When the affidavit required by the statute is sufficient in substance and there is lack of form as to the certification required by the stature, the court will not hesitate to allow such extraneous proof as would supply the deficiency, where it does not appear that any injustice will be done, and especially where it is manifest that the rights of those dependent upon such affidavit will otherwise be absolutely lost.</p>

<p>An agent who is authorized to sell standing timber has no implied authority to accept of a note of the purchaser, as part payment, made payable in three months to the order of the agent individually and in no manner disclosing his agency, and in such case the principal will be sustained in asking for a rescission of the contract.</p>

<p>According to the unquestioned practice in this state, a mortgagee may proceed in equity against the maker of the bond secured by such mortgage for deficiency, at any time within sixteen years but not after, notwithstanding the lien of the mortgage given to secure such bond remains unaffected for twenty years.</p>

<p>On petition for writ of assistance in the matter of sale of lands for payment of taxes.</p>

On interpleader. The contest in this case is between the defendants Harding, Whitman & Company on the one side and Mr. J. J. Crandall on the other. Both parties claim under the defendant, Frank Chambers, an admitted creditor of the complainant.

The authority conferred by the twenty-eighth and twenty-ninth sections of the act of March 31st, 1887 (P. L. of 1887 p. 80), upon, local boards of health to maintain actions in this court to enjoin nuisances, is confined to nuisances arising and maintained within the territorial limits of the complaining board.

<p>1. Tbe session of a Presbyterian cburcb, or the individual members thereof, as such, have no standing in a court of equity to call the incorporated trustees of the church to account for a breach of trust. That can be done only by a member or members of the congregation, all of whom constitute the cestwis que trustent of the corporation.</p> <p>2. The Presbytery of which any particular Presbyterian church is a member has no jurisdiction to adjudicate upon the use of the parsonage or manse of the church, and cannot determine who shall or who shall not occupy and use the same.</p> <p>3. The incorporated trustees of a Presbyterian society, whose members act as a standing committee of the congregation or parish, are bound to obey the directions of the congregation duly given in parish meeting assembled, and can only be restrained from so doing by some member of the congregation whose rights as a minority of the congregation have been infringed by the action of the majority.</p>

Order to show cause why injunction should not issue. The complainant, being the owner of a piece of vacant land in East Orange, executed a lease of it on the 23d day of January, 1891, to W. J. Morfilt, for the term of five years from the 1st day of February then next, at an annual rent of $180, with privilege to the lessee of purchasing the same at $2,000.- The instrument executed by the parties is composed partly of print and partly of writing, and contained this clause:…

<p>1. False representations, knowingly made by a vendor to a vendee previous to the sale, as to the character, condition and value of the property, are presumed to have influenced the mind of the purchaser, even though he had full opportunity to observe and know the actual truth, and the burden is on the vendor to prove clearly that such false representations did not influence the vendee in making the sale.</p> <p>2. The true test of mental capacity, whether to make a will or to transact business, is the ability “clearly to discern and discreetly to judge” of the matter in hand.</p> <p>3. A higher degree of mental capacity is required to transact the business of an exchange of lands than to attend to the ordinary affairs of every-day life or to make a valid will.</p> <p>4. The essence of the continuance of a lis pendens is that the object, subject-matter, ground of relief and parties should remain unchanged, except upon a devolution of the title from the complainant. An amendment which does not change either of these, but is a mere specification of additional matters of proof of the ground of recovery, i. e., fraud, does not make a new suit, even though the matter so set up becomes in the end the ground of recovery.</p> <p>5. Complainant, by his bill, asked to recover in equity a piece of land from defendant, upon the ground that title thereto had been obtained from complainant by fraud practiced by defendant, specifiying the fraud. The defendant made a conveyance pending the suit to a third party, who had full notice of it. After conveyance, complainant amended his bill by adding other specifications of fraud of the same character, and upon proof df these latter specifications obtained a deci’ee. — Held, that the maxim “pendente lite nihil innovetur” applies. '</p> <p>6. Complainant, at-a time when his mental faculties were weakened by disease, was induced, by false and fraudulent representations made by defendant, to convey to defendant a piece of land. Shortly afterwards, and after complainant had become mentally unfit to attend to business, his wife discovered what she supposed to be evidence of false and fraudulent representations made by defendant to her husband, and commenced a suit in chancery in'his name to recover the land so conveyed, on the ground of fraud, specifying the matter which she discovered. A would-be purchaser from the fraudulent grantee of the land so conveyed, having notice of the suit, inquired into the specifications of fraud contained in the bill and satisfied himself that they were untrue, and, among others, inquired of the wife and learned from her only what was contained in the bill and also of the incapacity of her husband, and purchased the lands. Subsequently the wife discovered among her husband’s papers evidence of other fraudulent representations, and caused the bill to be amended accordingly, and finally succeeded in setting aside the conveyance upon proof of the specifications of fraud contained in the amendment.' — -Held, that the complainant was not estopped by the answers made by the wife to the inquiries made by the expectant purchaser.</p>

<p>On bill for partition &c., and exceptions to master’s report.</p>

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

<p>1. On a general demurrer to the whole hill for want of party defendants, if any one of the several claims on which the bill is based, appears in the bill to be a claim against the defendant alone, the demurrer must be overruled.</p> <p>2. As to one of the claims set out in the bill, which might be construed to be a joint and several claim against the defendant and another, the non-joinder of such other person is not ground of demurrer. Stockton v. Anderson, 13 Stew. Eq. 486, followed.</p>

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

<p>1. Where a complainant who purchased at foreclosure sale a portion of the mortgaged premises, files a bill for strict foreclosure against a defendant who purchased the same portion of the mortgaged premises from an owner of the whole premises, who was not made party to the foreclosure suit, and whose rights were not foreclosed, it is not necessary that the persons interested in the remaining lands, either as succeeding to the original mortgagor or mortgagee, should be made parties.</p> <p>2. In such bill of strict foreclosure, if it appears by the bill that the remaining lands are still owned by the defendant’s grantor, or were not conveyed by her previous to the conveyance to defendant, the defendant would appear to be entitled to have the remaining lands first sold to satisfy the mortgage, and the bill must allege that the mortgage was not paid by the sale of the remaining lands, and that the value of these lands is not sufficient to pay the mortgage debt. Demurrer sustained for want of such allegation.</p> <p>3. On such bill for strict foreclosure, the court will determine, upon the proof, the amount of the mortgage properly chargeable against the portion owned by the defendant.</p>

<p>On bill for specific performance. Heard on bill and demurrer.</p>

<p>1. Under the Chancery act (Rev. p. 106 § 18, amended P. L. of 1893 p. 199), the power of the court to order publication against non-residents extends to any bill filed and cannot be construed to be limited to bill filed to enforce demands upon which the court has jurisdiction to make final decree if the non-resident does not appear. Mutual Life Insurance Co. v. Pinner, 16 Stew. Eq. 52, followed as overruling Hoyt v. Thorn, 3 Halst. Ch 9.</p> <p>2. An order of publication under the statute against a non-resident, upon bill filed to enforce a personal demand, in which the non-resident defendants are charged as jointly and severally liable with resident defendants, is not unconstitutional under the fourteenth amendment of the United States constitution, and the decision in Pennoyer v. Neff, 95 U. S 714, as taking property without due process of law.</p>

<p>On motion for preliminary injunction. Heard on bill, affidavits and answer and affidavits.</p>

<p>Testator devised his residuary estate to his executors, to be equally divided among his five children, the shares of the sons to be paid to them respectively when they attained the age of twenty-one, the daughters to receive the interest on their respective shares yearly during their lives; “but if either of them die without issue, her share is to go to her surviving brothers and sister equally to be divided between them.” — Held, that on the death of a daughter without issue after the death of a brother who left children, such children were not. entitled to any part of the daughter’s share, and this share will go to a surviving brother and sister of the deceased daughter.</p>

The Crescent Drug and Chemical Company, on April 25th, 1893, entered 'into an agreement with Jacob and Henry A. Haussaling, executors of Henry Haussaling, by which agreement the said executors contracted to place, on the ground floor and basement of the premises of the Crescent Drug and Chemical Company, in the city of Newark, suitable soda water fountains and appliances for carrying on the soda water business, within thirty days from the date of the agreement, the said…

<p>On motion to dismiss bill.</p> <p>A bill was filed against a foreign corporation by a stockholder thereof residing in New Jersey, asking that the corporation be declared insolvent and that a receiver be appointed. The bill alleges that the company was organized in England with a capital stock of £500,000, and “ that the company has carried on its business in different parts of the United States, including the State of New Jersey, and now has goods and chattels, choses in action and other property in or near Hackettstown, in this state, and that it has become insolvent and largely indebted beyond its ability^to pay and has recently suspended its business,” and has defaulted in the payment of certain debentures ; that certain judgments have been recovered against it in New York and it is hopelessly insolvent, and that its business cannot be carried on so as to pay its debts or yield a profit to its stockholders.</p> <p>There was an affidavit verifying the bill on information and belief and stating that the facts.set out were not denied, but were admitted by Alfred Sully, .the general agent of the com- , pany in the United States, and there was another affidavit reciting the judgments recovered in New York.</p> <p>On filing the bill and affidavit, a receiver was appointed without notice and an order of publication was made directing the corporation to appear and answer. Before the time for answering had expired,'a motion was made to dismiss the bill for want of equity, on the ground that it did not appear that the company was doing business in this state, and that it was not alleged with any certainty that it had such assets in the state as to warrant the court in assuming jurisdiction over it.</p>

<p>1. Where, in a cause respecting the probate of a will, the validity of the will is not questioned, but probate is resisted on other grounds and is granted, the costs and expenses of the litigation will not be charged upon the testator’s estate.</p> <p>2. Where a contestant resists the probate of a will upon an immaterial issue, under misapprehension of the law, which is not disabused by the court, and is shared in by the proponent, the contest will not be deemed, upon admission of the will to probate, to have been with reasonable cause, so as to justify the charge of the costs and expenses of the litigation to the testator’s estate.</p>

<p>1. A voluntary conveyance is not, per se, void except as against present debts.</p> <p>2. An accommodation endorser of a promissory note that is not dishonored is not a present debtor.</p> <p>3. Quaere — Can the chancellor decree the sale of land that has been conveyed by way of gift in favor of a creditor at large ?</p>

<p>1. On a bill calling for a personal decree, an order for publication of the usual notice to non-resident defendants, is not objectionable, even though a decree cannot be taken against such defendants if they fail to appear.</p> <p>2. What decree, if any, can be made against such absent defendants is not considered.</p>

<p>, On appeal from an order advised by Vice-Chancellor Pitney, whose opinion is reported in Bradbury v. Mutual Reserve Fund Life Association, 8 Dick. Ch. Rep. 306.</p>

I find that there was such an agreement. I also find that it was acted upon by the respective parties, i. e., the exceptants paid different sums of money upon the mortgage held by the complainants. Under the circumstances it was reasonable that they should make such an agreement, and it was especially reasonable that the exceptants should desire such payments to inure to their benefit in a definite way. The exceptants were mortgagees subsequent to the complainants.

<p>1. To constitute a valid sale at law, the vendor must have a present property, either actual or potential, in the thing sold; the rule in equity is different, the equity in the assignee or vendee attaches to the contemplated thing the instant it Comes into being.</p> <p>2. In equity the assignment of future improvements upon a formula, or on a patented process, in connection with the assignment of the formula or patent, is valid.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Lindsley v. Dodd, 8 Dick. Ch. Rep. 69.</p>

<p>On appeal from a decree in Landis v. Sea Isle City Hotel Company et al., advised by Vice-Chancellor Pitney.</p>

<p>On appeal from a decree advised by Vice-Chancellor Bird, whose opinion is reported in Whitehead v. Hamilton Rubber Co., 8 Dick. Ch. Rep. 454.</p>

Waln, who delivered the following opinion: This bill is filed for the purpose of making effectual the lien of an attachment upon the rights and interests of the defendant, Mrs. Wain, in certain moneys now in possession of the court, the proceeds of the sales of real estate of which Mrs. Wain’s father died seized.

<p>The general rule of equity that damages of an intangible character will not be admeasured by a court of chancery will not be applied in a case where the party found to be liable for such damages admits the amount thereof. In such case the determination of damages by a jury would be useless.</p>

<p>Bonds of .a railroad issued in excess of the amount of stock actually paid in are invalid in the hands of one who was a director at the time of such issue.</p>

<p>A bill was filed by a receiver to have a corporation mortgage declared void. Strictly responsive answers were filed by certain bondholders. The mortgage was declared to be valid as to all bondholders save those who took their bonds charged with knowledge that they were issued in excess of the amount of stock actually paid in. The first issue of bonds was on a bona fide full-paid stock basis, and certain of the bonds became the property of. the appellants, who, as directors, subsequenly became charged with knowledge that a later issue of bonds was not upon a paid-up stock basis. — Held, that the first issue was valid and that the bonds constituted property in the hands of the appellants, which could not, in a suit thus framed, be taken from them either as a penalty or as a contribution to the general dividend fund for the holders of the subsequent issues.</p>

<p>1. The only ground upon which the judgment of a court of general jurisdiction can be disregarded in another state is — -first, where the adjudging tribunal had no jurisdiction over the person against whom judgment was pronounced, or over the subject-matter of the litigation; and second, where the adjudication of the foreign tribunal has been obtained by fraud.</p> <p>2. Where the plaintiff in a cause is required by statute to have been a Iona fide resident of the state in which his action is brought for a fixed period of time, in order to enable him to maintain his action, the ascertainment by the court of the fact of such residence necessarily precedes a consideration of the merits of the case; a.nd the determination of that question by the court is final, not only in the courts of that state, but in every other jurisdiction where the validity of the judgment comes in question, unless such determination has been procured by fraud.</p> <p>3. The pendency of a suit between the same parties, and for the same cause of action, in this state, is no bar to a subsequent suit brought in a sister state. The remedy of the defendant is to apply to the court in which the subsequent suit is brought to stay proceedings, or to refuse final judgment until the suit here is determined.</p>

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

<p>On appeal from an order of the chancellor.</p>

On bill for partition and accounting. On appeal from an order advised by Vice-Chancellor Bird, in Exton v. Hutchinson, who delivered the following opinion; The questions presented arise on exceptions… Held: that her husband was not entitled to be tenant by the curtesy.” In Stead v. Platt, 18 Beav. 50, it was decided that “ there is no estate by the curtesy issuing out of an estate pur autre vie.

<p>On appeal from an order of the chancellor, whose opinion is reported in Forrest v. Price, 7 Dick. Ch. Rep. 16.</p>

<p>On appeal from a decree advised by Vice-Chancellor Green, whose opinion is reported in Hall v. Otterson, 7 Dick. Ch. Rep. 522.</p>