Volume 55 — New Jersey Equity Reports

On order to show cause why an injunction shall not issue to restrain a suit in ejectment, heard on bill, answer and affidavits. The defendant’s husband was the attorney-at-law of one Ellen Underwood, and, as such, for her, in March, 1879, recovered judgment, in the Hudson county circuit court, for, $372.72, against the complainant.

On demurrer to bill. - ■ The bill alleges that a firm of builders, Koellhoffer & Koenig, agreed with the defendant Bernz to well and sufficiently erect and finish “buildings” for Bernz according to drawings and specifications prepared by Brade, architect, providing the needed materials for the carpenter work, for $2,975, to be paid as follows : One thousand dollars when the buildings shall be raised • and sheathed, $900 when the buildings shall be enclosed, partitions set…

<p>On petition by the receiver of the defendant company for instruction &c.</p>

<p>In estimating the time during which a willful and obstinate desertion shall continue, where, during such desertion and before its completion, the deserter shall be imprisoned upon due conviction of a crime non-political, the term of his imprisonment, in virtue of the supplement to the Divorce act, approved April 1st, 1887 (Gen. Stat. p. 1273 & 37), must be excluded.</p>

On demurrer to bill. The bill alleges that the complainant is the child of George Davis, Jr., and Sarah, his wife, and was born November 20th, 1868; that his father died in 1874, and his mother died in 1877, both intestate; that his paternal grandfather became his guardian, and also the administrator of his mother’s estate, but died in July, 1879, before the mother’s estate was settled; that in August, 1881, the defendant Henry L. Davis, an uncle, became the complainant’s…

<p>Heard together on bills, answers and statement of facts.</p> <p>The object of these bills is to recover four several legacies given to the four several complainants respectively by the will of James Stokes, late of the county of Atlantic, deceased.</p> <p>He died January 31st, 1891, testate of a will made two days previously, the effective parts of which are as follows :</p> <p>“First. I give, devise and bequeath unto my wife, Mary J. Stokes, all my estate, both real and personal, in trust, wherever the same may be, to have, hold, receive, use and enjoy the rents, interest, issues and profits thereof, during the term of her natural life, except as hereinafter provided for.</p> <p>“Second. I give, devise and bequeath the sum of five hundred dollars to my wife’s sister, Elizabeth Adams, and the sum of two hundred dollars to each of my nieces, Alice Weeks, Jennie Weeks and Anna Belle Bobinson.</p> <p>“ Third. I give to my executrix hereinafter named full power and authority to grant, bargain, sell and convey all my said real and personal estate to any person or persons, in fee-simple, at public or private sale, upon such terms as she shall think fit.</p> <p>“Fourth. I direct that my real estate shall be sold as soon after my decease as shall seem meet, and the proceeds of said sale after paying the legacies above specified to be invested on bond and mortgage upon real estate.</p> <p>“Fifth. I give, devise and bequeath, after the death of my said wife, the balance of my said real estate remaining in her hands, to my lawful heirs.</p> <p>“Sixth. I do hereby constitute my said wife, Mary J. Stokes, executrix of this my last will and testament.”</p> <p>The testator left no personal estate, but died seized of a boarding-house or hotel in Atlantic City, known as the “Arlington,” which had considerable value.</p> <p>The widow duly proved the will, took possession of the real estate and enjoyed it with the rents and profits until her death on the 10th of October, 1894, without having sold the real estate or paid the legacies or any interest thereon.</p> <p>After her death, letters of administration, de bonis non cum testamento annexo, were granted to the defendant, Clement J. Adams, who sold the real estate on the 25th of March, 1895, and has in hand sufficient proceeds to pay the legacies.</p> <p>After the death of the widow and the appointment of defendant as administrator, the complainant' Elizabeth Adams produced and made a sworn demand against the estate, based upon a promissory note in these words:</p> <p>“Atlantic City, New Jersey, March .23, 1888.</p> <p>“ For value received, I promise to pay to the order of Elizabeth Adams four hundred and fifty dollars (§450.00).</p> <p>“§450.00. (Signed) James Stokes.”</p> <p>At the time when these causes were submitted a suit by complainant against defendant, on that note, was pending in a court of law. No demand was made upon the executrix named in the will by either of the complainants for the payment of their legacies or any interest thereon, and the same is true as to the promissory note held by the complainant Elizabeth Adams.</p>

<p>1. A corporation was organized to take over the business and assets of another older corporation, and contracted with the older corporation and its stockholders, in consideration of receiving such business and assets, to issue to each of the old stockholders certificates of stock in the new company upon surrender of those in the old, share for share. In a suit by a holder of a certificate of stock in the old company against the new company for specific performance of this agreement — Held, that the suit could be maintained by a single stockholder without making the old company or either of its stockholders parties defendant, or declaring that the suit was brought for the benefit of such of the old stockholders as might come in and be made parties.</p> <p>2. The general language, often used in this connection, to the effect that all persons having an interest in the subject-matter of the suit should be made, parties, is not accurate. The true rule seems to be that all persons who are parties to the interest involved in the issue, and who must necessarily be affected by the decree, should be made parties.</p> <p>3. Where a certain sum of money or other thing is due to a party, and no other person has any right or interest in that particular sum of money or thing, it is not necessary to make any other person a party to a suit to recover it, nor to declare that the suit is brought for the benefit of the complainant and other persons having similar claims, although there may be such other persons.</p>

Heard on bill, answer and replication. The object of the bill in this cause is to obtain the benefit of an equitable defence to a judgment at law. The facts which furnish' the equitable defence were set up in defence to the action at law, without success. It was tried by a judge without a jury, and his reasons, given informally, show that it was not considered upon its general merits, but simply in the light of whether or not it furnished a defence at law.

<p>Motion for a receiver pendente lite. Heard on petition and affi davits,</p>

<p>1. The owner of..adjoining lots, the rear of which had no connection with any street, formed the plan, in selling them, of reserving an alleyway three feet wide across the rear of each lot, and opening on a public alley at one end for the common use of the owners of the interior lots. The deed given a purchaser of one of the interior lots, from whom complainant purchased, contained a reservation of such way, but contained no grant of right of way over the lots intervening between such lot and the alley, which were then owned by the vendor, though such grant was intended. Such deed was duly recorded. All the lots were sold with the verbal understanding that the way was to be reserved, but through oversight the reservation was omitted from the deed given to the purchaser of the one adjoining the alley into which the way opened. The purchaser, in building, however, left a covered way up to the second story, and it was used by complainant and the owners of the other lots at the time such lot was purchased by defendant. — Held, that complainant was entitled to have the deed of her grantor reformed, so as to convey the right to use the way over defendant’s lot, defendant being chargeable with notice of such right by the record of the deed as written, and the use made of the way when he purchased, of which he had actual knowledge.</p> <p>2. The reformation of a deed is fairly within a prayer for general relief in a bill in equity.</p>

The bill is filed by a corporation against one of its former officers, for an account and recovery of profits realized by him, as is alleged, in the purchase of certain lands for the company while he was president.

<p>1. A railroad company will not be enjoined from proceeding to construct a road, on the strength of an award in condemnation proceedings for a right of way, where it was enjoined prior to the condemnation proceedings, as that is enough to put it in contempt unless its action is justified by the award.</p> <p>2. It is beneath the dignity of the court to entertain a suit-of a landowner to enjoin the construction of a railroad, the land not being worth more than §5.</p> <p>3. A landowner should not be aided by injunction to prevent construction of a railroad, his purpose being merely to prevent competition with another road.</p> <p>4. Injunction to prevent interference with the construction of a road by a railroad company will not be granted where there is doubt as to its title to the right of way under condemnation proceedings, because, before award of damages by commissioners, a certiorari removing the appointment of the commissioners and the proceedings to the supreme court was allowed, without any statement whether it should operate as a stay of proceedings, and because there is doubt whether the act of February 25th, 1880 (Rev. Sup. p. 881), providing that certiorari to remove proceedings by commissioners appointed to assess damages for land required for construction of a railroad shall not stay proceedings by the commissioners, is not unconstitutional, even if construed merely as requiring the certiorari to recite that it is to operate as a stay if such is to be its effect.</p>

<p>1. The decree of the orphans court allowing the account of an administrator on an alleged sale of assets at a certain price is not conclusive as to the value of such assets where the account was false, no sale having in fact been made.</p> <p>2. Where an administrator reports the sale of assets at a certain price, when there was no sale in fact, equity will avoid the decree of the orphans court allowing the account-, and require an accounting of the value of the assets, regardless of the value stated in such report.</p> <p>3. Where it appears that the president of a corporation, holding over six thousand shares of the corporate stock in his own name and five hundred shares as administrator of a decedent’s estate, reported to the orphans court a sale of his decedent’s stock at one hundred and sixteen, when no sale had in fact been made, and that he actually sold five hundred shares, seven months after such report, to his brother-in-law at one hundred and sixteen, while the shares were worth nearly two hundred,'the sale of five hundred shares should be considered as from his own holding, and decedent’s shares should be accounted for at their true value.</p>

<p>Bill to restrain and abate a nuisance. On demurrer by the railroad companies.</p>

<p>1. Evidence of a declaration by a tenant in common of property, to a disinterested person, that he was operating it entirely at his own expense, is not sufficient to establish a contract on his part not to make any demand on account of his expenses.</p> <p>2. In the absence of a contract, the only remedy for a tenant in common, who makes expenditures on the common property, is to have the part improved set aside to him on a partition, or, this being impracticable, to obtain an equitable allowance on sale in lieu of partition.</p> <p>3. Where property held in common is sold pursuant to an agreement of the tenants in common, among themselves, that from the proceeds there shall first be paid to them the respective amounts found to be due to them as debts, and this has reference to expenditures made by them on the property, the agreement will be enforced, but such expenditures will not be considered debts, so as to bear interest from the time they were made up to the time of such, agreement.</p> <p>4. Where an agreement is made by the owners of railroad bonds, the purchasers thereof and the agent negotiating- the sale, that one of the owners shall be custodian of them and make pro rata delivery thereof to the purchasers, as partial payments in money are made, and pay the agent his commission when a certain amount of the purchase-money is paid, he will be liable to the other owners for making delivery of part of the bonds for a worthless note and for delivering others to the purchasers on their agreement to pay the agent, the purchasers not having then or afterwards paid the amount which entitled the agent to his commission.</p> <p>5. The loss by reason of such delivery will, in the absence of evidence as to the value of the bonds or any regular market value, be the price put on them in the contract of sale made shortly before; allowance, however, being made for the fact that the remaining bonds, which the purchasers failed to take, were benefited by a necessary expenditure in improving the road, which the purchasers made pursuant to their agreement that they would do so if the bonds should be delivered in consideration of the note.</p> <p>6. On a sale of railroad bonds, one of the owners was made custodian thereof to make delivery of pro rata amounts as partial payments were made. Without authority he delivered some of them for a worthless note. Thereafter, the purchasers having failed to take the remaining bonds, and the road having become insolvent, and there being litigation pending in which the organization of the railroad and validity of the bonds were attacked, the other owners proposed a sale of them for a certain amount, and he agreed to a sale at any price, “provided, however, I am forever thereafter relieved from any further responsibility or liability in any way relative to said railroad or the securities thereof.” — Held, that this did not have reference to or include his liability to the other owners for this unauthorized delivery of bonds.</p>

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

<p>1. Under act of March 7th, 1797 (Bev. p. 476), providing that any creditor may maintain an action against the heirs of a deceased debtor on a simple contract or specialty, the liability of the heirs on a note executed by decedent is purely legal and cannot be enforced by a bill in equity.</p> <p>2. On a bill in equity, brought against the administrator and the heirs-at-law, for the sole benefit of a single creditor of the estate, whose claim has not been admitted by the administrator nor established against him by judgment or decree, the court has no power to render a decree against the heirs, charging the debt on the lands or directing the sale thereof for its payment.</p> <p>3. A note executed by H. for the accommodation of E., to whose order it was made payable, was delivered by the latter, after the death of H., but before maturity, to complainant, who had no. notice of its accommodation character. By mistake the note was not endorsed, but E. executed a writing certifying that said note endorsed by him was deposited as collateral security for a loan, and authorizing the holder to negotiate it if the loan was not paid. On default in such payment, complainant, without having obtained judgment at law against the administrator, who had rejected the claim, filed a bill in equity against him and E. to compel the endorsement of the note and to charge its payment on decedent’s lands, the heirs-at-law being also parties defendant, but the bill alleged that E. was a non-resident and that it was impossible to serve him with process. — Held, that as a decree for specific performance of E.’s contract to endorse could not be decreed for want of jurisdiction over his person, no decree could be rendered against the administrator.</p> <p>4. "Where it appears on the face of a bill that defendants were non-residents at the time suit was commenced, and that the action does not relate to any of the subjects in respect of which the court is warranted in exercising jurisdiction over non-residents, a demurrer for want of equity will be allowed.</p>

<p>On decree and motion for stay pending appeal.</p>

<p>1. Under act of 1870 (Gen. Slat. p. 8486), which provides for a bill to quiet title “when any person is in peaceable possession of lands, * * * claiming to own the same” &o., both actual and peaceable possession are, on complainant’s part, jurisdictional facts, and if denied by defendant, must be settled as the preliminary question.</p> <p>2. On a bill to quiet title, it appeared that about 1856 complainant’s predecessor in title cut hoop poles from the tract in controversy up to the line claimed, his men working for three months; that in 1871 stakes were placed on the line and trees marked, and that since that time complainant had stopped any trespassing on the land; that he stopped a sale of the land by defendants in 1884; that no wood had been cut therefrom for over twenty years till 1894, when persons working under some or one of the defendants began cutting and were immediately enjoined under the pending bill. — Held,, that complainant was the actual possessor of the premises.</p> <p>3. Peaceable possession need be shown against defendant only.</p> <p>4. Possession of complainant is peaceable, within said act, where defendant, setting up a claim of title, has not interfered with complainant’s possession by an act which is suable at law, and suit upon which will or may involve the title of defendant.</p> <p>5. Where acts of trespass, committed under the direction of some or one of the defendants, have been enjoined under such a bill, and the only answering defendant does not allege that she is responsible for the trespass, and may be sued for it, and the bill is taken pro eonfesso against the other defendants, there appears no such interference with complainant’s “peaceable possession” as would oust the jurisdiction under the act.</p> <p>6. On the issue of the true location of a boundary line, a return from the board of proprietors, wherein the disputed line is located by reference to certain boundary lines of other tracts, which are proved to be well established and recognized, must prevail over a map on file in the surveyor’s office, showing a different location of the disputed boundary.</p> <p>7. In a bill to quiet title, where the origin of the record title under which defendant claims is not shown, the title devised must depend, in the first instance, upon possession, and this must be shown.</p>

<p>1. Where, pending an action involving accounts between defendants and complainant’s testator, complainant brings a bill to enjoin such action and for a discovery and accounting as to the same transactions, and the discovery is fully obtained by defendants’ sworn answer to complainant’s bill, such bill will be considered as merely ancillary to complainant’s defence in the action at law, and an injunction will not be granted.</p> <p>2. The statutory action (Rev. p. 476; Gen. Stat.p. 1679) to enforce a joint liability against the heirs and devisees of a testator being a purely legal remedy, equity will not enjoin its prosecution or interfere with it except for the purpose of granting a discovery or other merely ancillary relief.</p> <p>3. A bill to enjoin an action brought under Rem. p. 4-76 (Gen. Stat. p. 1679) to enforce a joint liability of the heirs and devisees of a testator for a claim on an account against testator, may be sustained in so far as it seeks to compel a delivery and return of securities deposited by testator with defendants, since such relief is purely equitable and could not have been given in the action at law on the account.</p> <p>4. In a suit to restrain prosecution of an action at law on an account against complainant’s testator, defendants set up by cross-bill a claim against complainant as executrix and sole legatee of the testator on the same account.— Held, that they were entitled to relief on the cross-bill, though complainant’s right to an injunction was denied on the ground that the law court could settle the account, and defendants, in their answer, had denied jurisdiction of the court to entertain complainant’s bill for an injunction.</p> <p>5. Equity has jurisdiction of a claim against the executrix and sole legatee for settlement of an account against the testator, since the statutory method of enforcing the liability of the legatee by means of a suit on the refunding bond would be inadequate, on the ground that the bond, if given in such case, would have been made by the legatee payable to herself as executrix.</p> <p>6. Purchases and sales of stocks on a stock exchange, made by defendants as brokers for complainant’s testator, did not form a gaming transaction if the stocks were actually bought and delivered and there was not a mere dealing in differences between prices or speculations on the rise and fall of the market.</p> <p>7. Evidence that statements of the purchase and sale of stocks by defendants, who were testator’s brokers, were reported to testator as soon as made, and that .monthly statements were submitted to him, showing the state of the accounts, and that he had previously examined such accounts and made no objection thereto, does not sufficiently show an account stated which can be enforced as such between defendants and his executrix.</p> <p>8. The burden of proving that transactions relating to the purchase and sale of stocks, which are in form transactions between the customer as principal and the broker as agent, are wagering contracts, rests on the party asserting their illegality.</p>

<p>1. Where a defendant in partition dies after the trial and argument of the cause, a decree may he entered nunc pro tunc, and any conflicting claims to the share of the deceased defendant in the proceeds of the property may be settled on a petition for distribution, or the claimants may be brought in by a petition to revive, and their rights may be set up by answers to the bill and determined before decree.</p> <p>2. Under the provisions of the statute of wills (Ren. p. 1248), by which a will operates on real as well as personal estate acquired by the testator after its execution, a devise which lapses by the death of the devisee before that of the testator follows the common-law rule as to lapsed legacies, and passes under the residuary clause of the will, unless a contrary intention is manifested on its face.</p> <p>3. Under the general rule that a residuary clause in a will carries the entire residuary estate, unless manifestly limited to a particular part, the fact that a will first disposed of the testator’s interest in the property of a partnership, and gave his wife all the residue of his property, does not exclude the wife from taking a lapsed devise of a part of the partnership property.</p>

<p>On final hearing.</p> <p>This bill is filed by Howard M. Cooper, the guardian of Christopher A. Bergen, to obtain the instruction of the court respecting his duties as trustee, and for other relief. The bill sets out a decree under date of September 18th, 1895, made upon a commission of lunacy, declaring Christopher A. Bergen a lunatic, and the subsequent appointment by the orphans court of Camden county of the complainant as guardian. It then sets out that Christopher A. Bergen, at the time of the making of the decree, was the administrator of the estate of one John Wallace, and that there was in the hands of the administrator of the estate of Wallace the sum of $1,930, which, under the will of Wallace, was to be held for the widow of Wallace, viz., Susan Wallace, for life, and after her death was to be paid to the children of John Wallace, in equal shares.</p> <p>It then sets out that the said Christopher A. Bergen was, with one Joseph J. Read, a joint administrator and trustee of one George V. Voles, and that of the estate of said Voles there was in the hands of the said Christopher A. Bergen the sum of $17,002.10.</p> <p>The bill charges that so far as can be ascertained, a property known as No. 584 Clinton street, Camden, standing in the name of the said Christopher A. Bergen, belongs to the estate of said Voles; that there was, and is, in the hands of Joseph J. Read the sum of $13,620.76; and that the balance of the property of the estate of Voles is invested in property in Bridgeboro, Burlington county, in the name of George V. Voles.</p> <p>The bill then states that the said Christopher A. Bergen was the guardian of his two children, George J. and Martin V. Bergen, and that there was in his hands, as guardian for said children, the sum of $787.34.</p> <p>The bill then sets out a list of properties standing in the name of Christopher A. Bergen.</p> <p>The bill then sets out the amount of personalty belonging to Christopher A. Bergen, within the knowledge of the complainant.</p> <p>The bill then sets out some real estate which, it is alleged, belong to the firm of Bergen & Bergen, but the legal title to which stand in the name of Christopher A. Bergen.</p> <p>The bill then sets out certain properties, which, it is alleged, belongs to the firm of Bergen & Bergen, of which Christopher A. Bergen was one, but which stands in the name of Martin V. Bergen, the other partner.</p> <p>Among the lots of land standing in the name of Christopher A. Bergen which, it is stated, belong to the firm of Bergen & Bergen, is one in Gloucester city, Camden county, which, it is alleged, was conveyed to Christopher A. Bergen by its owner, Jacob Koehler, to secure to the firm of Bergen & Bergen the amount charged by them for services in their profession rendered, and for money advanced by them, to Koehler, with a trust imposed upon Bergen & Bergen to reconvey the said property to Koehler upon payment of said amount; that there is due the sum of $72.47, with interest, upon the payment of which sum Koehler is entitled to a reconveyance.</p> <p>The bill then states that three properties — No. 528 West street, Nos. 337, 339 and No. 334 Pine street — were conveyed to Christopher A. Bergen to secure the firm of Bergen & Bergen, for moneys paid by them in behalf of the estate of one Valentine Noll; that by an agreement dated September 22d, 1887, entered into between Christopher A. Bergen and Margaretta Noll, the widow of Valentine, who is now dead, and who had a life estate under the will of her husband, and also by the beneficiaries, Charles Noll, Christina Subers, Clara A. Ogden and John Noll, it was agreed that No. 528 West street was to be held in fee by Christopher A. Bergen, in full payment for all advances upon that property and on the other two properties, and a deed was so made that Christopher A. Bergen was to hold the other two properties subject only to future advances as trustee.</p> <p>The bill states that lots Nos. 26 and 40, on the T. H. Dudley plan in Atlantic City, Christopher A. Bergen, by his verbal agreement, agreed to sell to George M. Fisher for the sum of $6,850, and such other moneys as the said Bergen should thereafter expend thereon, and interest, and that Fisher is in possession of the said property under said agreement. The prayers of the bill are that trustees may be appointed in the place of Christopher A. Bergen for the Wallace and the Voles estates; that an accounting may be had of the amount due from Christopher A. Bergen to the Wallace estate and to the children of the lunatic; that the guardian may be directed as to the manner he may raise money to pay the said cestuis que trust or what property he may transfer to said trust estates, and that he may be decreed to convey the same; that if it should be decreed that Fisher is entitled to purchase the property in Atlantic City, that he may be decreed to pay for the same, and the guardian may be decreed to convey the same to Fisher; that the guardian, upon the payment by Koehler of the amount due from him to the firm of Bergen & Bergen’, may be decreed to convey the Gloucester city property to him, and with the same prayer respecting the Roth property.</p>

<p>A firm agreed to give B., for a valuable consideration, a fourth interest in the profits which it might make in a certain contract for work, B. to furnish necessary capital for such work up to a certain sum, pro rata with the firm. After performance thereof, one of the partners, a non-resident, died, and thereafter full payment for the work was made to the survivors. — Held, that B. could maintain a suit against the survivors alone, for an account of the profits, and a payment to him of a fourth part thereof, as R. did not, by his agreement, become a member of the firm, and the presence of the representatives of deceased was not indispensable to the ascertainment of the merits, or to prevent injustice to them, no representatives being appointed within the state, and foreign representatives not being subject-to suit in their representative capacity outside of the state in which they were appointed.</p>

<p>A bequest of the residue of testator’s estate to humanity’s friend, * * * B., to use and expend the same for the promotion of the religious, moral and social welfare of the people in any locality, whenever and wherever he may think most needful and necessary,” since it includes objects not charitable, must fail for indefiniteness.</p>

<p>On bill for specific performance.</p>

<p>1. A preliminary order' will not be granted to restrain a corporation, organized for mining and reducing ores owned by it within the state, from entering •into a Contract for the purchase of similar mines lying outside the state, since the purchase may be made and the contract carried out, and the corporation» still be at liberty to discontinue the operation of work outside the state, if it be a breach of the original contract between the stockholders.</p> <p>2. Where a mining and manufacturing corporation was organized under the Corporation act of 1875, which provides (section 55) for the purchase of property with stock, such provision became a part of the contract between the stockholders; and where new stock is issued for the purchase of mines, which will become a part of the common property, from which all stockholders will receive the same benefit, original holders cannot insist that the new stock shall' be issued to them in the proportion their holdings bear to the whole amount of stock before the increase.</p> <p>3. In case the corporation deprives a stockholder of his rights in this behalf, it is liable to an action at law for damages; and where it is of sufficient responsibility to answer to such action, the stockholder is not entitled to-equitable relief.</p> <p>4. Rival corporations became interested in the same mineral deposit, on the-supposition that two different ores, found in. the same veins, could be separated, the two having been sold, one each, to the two corporations. To define and separate the two ores, in practice, in the earth was found practicably impossible. Disputes arose as to whether the various veins uncovered were one ore- or the other, and prolonged and expensive litigation followed, extending over many years. Finding that the issue was incapable of satisfactory judicial determination, a contract was made whereby the rival interests were to be consolidated, but as a condition precedent it involved the purchase of other mines and plants in different parts of the state and country. The corporations exercised no public franchise, were simply the owners of a species of property which, in its natural state, is of no use to mankind, and their output comprised but a small fraction' of the product of the country. — Held, that the contract did not tend to create a monopoly.</p>

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

On demurrer to bill. The complainant, as administrator cum testamento annexo of William K. Miller, deceased, files his bill asking for the aid of the court in construing the will of his testator, with a statement that there are adverse claims made by two classes of defendants, who are made parties, and prays that they may interplead.

<p>1. Creditors who have proven their claims against an assigned estate may maintain a bill to set aside fraudulent sales made by the assignor, and for the removal of the assignee, who was a participant in these fraudulent sales, though their claims are not in judgment.</p> <p>2. Creditors may maintain an action to set aside fraudulent sales of an assignor, without any demand on the assignee to bring such suit, when he is a party to the fraud.</p> <p>3. In a suit to set aside a conveyance alleged to be fraudulent, the grantee is a necessary party.</p> <p>4. Where the orphans court could grant only a portion of the relief prayed for in a bill in equity against an assignee in insolvency, the court of chancery will retain the bill for all purposes.</p>

<p>1. - A bill by a receiver of a corporation against the stockholders and bondholders of the company alleged that certain persons formed a pool to promote the organization of a stock company to buy paper-mills, and procured options on thirty-nine mills at a certain price; that they transferred all options to one man; that they made from him a pretended purchase by the company for mortgage bonds, preferred stock and common stock; that they paid the origi-. nal owners partly in cash, partly in preferred stock and partly in common stock, at a price far beyond the real value, and still had a large amount of bonds and stock of both kinds to be distributed among themselves as pro-' moters; and prayed that the promoters should be decreed to make good to the' company any loss by reason of any of such bonds or stock in the hands of bona fide purchasers. As to sis demurring defendants, the bill alleged that certain of the bonds and stock were held by them and others; that they were not bona fide purchasers of such bonds, or bona fide creditors or stockholders of the company, and, in so far as they were not said promoters, they were the1 mere agents of the promoters. The object of the bill was to ascertain the amount for which each of the bonds should be held, and reduce the secured indebtedness accordingly; to declare all bonds issued without consideration void; to ascertain the amount actually paid for the stock, and, after applying the assets to payment of creditors, to assess the difference pro rata against such stockholders as had not paid for their stock. — Held, that the bill was not multifarious.</p> <p>2. The statements of such bill were sufficient at least to throw on such demurring defendants the burden of proving that they were bona fide purchasers for value, without notice, of the bonds and stock held by them.</p> <p>3. Nor is the bill open to the objection that complainant’s remedy is at law.</p> <p>4. The attorney-general was not a necessary party to a bill by the receiver of an insolvent corporation formed for the purpose of creating a monopoly against the stockholders and bondholders, to ascertain which of the stockholders have paid for their stock and which have not, and the amount necessary for each one to pay, and to declare such bonds void.</p>

<p>Heard on petition, order to show cause, answer and testimony taken orally. .</p>

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

Final hearing on bill, answer and proofs. This is a bill for the specific performance of a contract not relating to lands. It is found in a series of bonds known as the “ funded debt city improvement bonds ” issued by the defendants, dated March 15th, 1893, for $1,000 each, payable, with interest at four per cent, semi-annually, on the 15th of March, 1923 — that is, thirty years from their date.

<p>Oh bill &c. On motion to strike oht demurrer as frivolous.</p>

On bill for accounting. Heard on bill, answer, replication and proofs taken orally. This is a suit brought by the complainant corporation against a former director, based upon alleged illegal appropriation of the company’s property and moneys, and the bill is filed for the purpose of obtaining a discovery and an accounting.

On appeal of city of Newark from disallowance of claim for taxes by receiver. Heard on petition, answer and stipulation.

<p>Ou bill, answers, replications and proofs taken orally.</p>

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

<p>1. In an action for specific performance of a contract for the sale of land, it appeared that the vendor was a widow over seventy years old; that the contract was made, when complainant was not present, at the office of S., who had been a neighbor for thirty-five years, had done business for her husband and had advised her after the husband’s death; that she was influenced by the advice of S., who acted for complainant, to sell for $2,375; that S. had previously tried to buy the land, but was not willing to pay $3,000, the price she asked; and that afterwards, but before the contract was made, she wrote him offering to take $2,500. — Held, that the defence that the agreement was unfairly obtained by S., by false representations made to the vendor to induce her to make it, was not sustained.</p> <p>2. Specific performance of a contract for the sale of land for $2,375, which was worth $3,000, will not be refused on the ground of inadequacy of price.</p> <p>3. Where a vendor of land, in April, 1890, informed her vendee that she would not perform the contract, delay in bringing suit for specific performance until August, 1893, was such laches as barred the action, especially as the contract was signed onlv by the vendor.</p>

This suit is brought for the purpose of restraining the defendants from transacting their business, and from conducting it in a manner prejudicial to the complainants and injurious to the people of the State of New Jersey.

<p>G., owning a tract of upland and also a separate tract fronting on the sea, conveyed to S. and his heirs, by warranty deed, the tract of upland, and, after describing it by metes and hounds, continued as follows: “ Together with the free use and full right of sufficient land on my sea front for bathing purposes, with the right to enter thereon, erect bath-houses and use the same free of charge, undisturbed at any time.” — Held, that by this deed G. gave to S. an easement of way over his land to the sea, and also that the right given to erect bath-houses and use the same free of charge, undisturbed at any time, was a license merely which was revoked both by the death of the parties and by a subsequent conveyance.</p>

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

<p>Under the Corporation act of 1896 (P. L. of 1896 p. 299 ji 68), providing that all the property, rights and privileges of an insolvent corporation shall forthwith vest in the receiver upon his appointment, assessment calls on stockholders are properly made by the receiver under an order from the court.</p>

On demurrer to bill. The bill in this cause shows that it is filed for the foreclosure and sale of certain premises (situated in Morris county) under the provisions of a trust deed or mortgage dated the 1st day of March, 1886, made by the Bloomingdale Graphite Company to the American Loan and Trust Company, a corporation of the State of New York, to secure the payment of fifty bonds, each conditioned for the payment to the bearer of $500 on the 1st day of April, 1906, and…

<p>1. A court of equity will not assume jurisdiction to construe a will alleged to pass real estate at the instance of an executor who is not, hy the terms of the will, given an estate in the property disposed of, nor charged with the performance of any trust or other duty in relation thereto.</p> <p>2. Equity will construe a devise when such construction is incidental to its general jurisdiction over trusts.</p> <p>3. The claimant of a purely legal title to lands under a devise, seeking only to establish his title as against that of the heir-at-law by the construction of the will, must assert his right at law and not in equity.</p>

<p>Plaintiff in an execution in a sheriff’s hands, on -which a sale of lands had been advertised, gave the sheriff, before the sale was made, explicit orders not to sell, and paid his costs and expenses up to that date. Belying on these orders, plaintiff did not attend the sale. Strangers to the record, knowing that the sale had been ordered off by plaintiff, persuaded the sheriff to sell. Without notice to plaintiff, the sheriff sold at nominal prices. — Held, that the delivery of the deeds by the sheriff would be enjoined because the sale was a fraud on plaintiff and the execution debtor’s other creditors, who were pressing for judgment.</p>

On bill, answer and proofs. This bill is filed by the complainant, Lizzie Kelly, wife of Samuel H. Kelly, against the defendants, Mary S. Brennan and George W. Crosby, for the purpose of compelling the specific performance of a contract claimed by the complainant to have been entered into by the defendant Brennan for the sale of lands in Atlantic City by the action of her agent, David Giltinan.

On bill and affidavits and order to show cause &c.- The complainant, George G. Green, is the owner of a farm in Harrison township, Gloucester county. He files this bill against Kate McCrane, John McCrane and Jeremiah McCrane, defendants.

On bill and answer. Sarah B. Devinney was, in her lifetime, the wife of the defendant, Hubert Devinney, and sister of the complainants. She died intestate, and they filed this bill as her heirs-at-law. The bill alleges that prior to her marriage she was the owner, in her own name, of two shares of stock of the Franklin Loan and Building Association of Salem.

On bill, answer, proofs &c. Joseph Loewendahl and Gertrude Loewendahl, were man and wife. Gertrude died in 1885, leaving Israel her surviving, but without any issue. Her heirs-at-law and next of kin were her brothers and sister, none of whom are parties in this suit. Gertrude left a will dated December 19th, 1884, whereof she appointed her husband and brother Charles executors.

On petition of receiver &c. The bill of complaint was filed on the 27th day of November, 1895, and has resulted in a decree that the defendant corporation is insolvent.

<p>On appeal from a decree of the Camden county orphans court, which denies probate to a paper which purports to be the last will of Mary Ann Elliott, deceased.</p>

<p>On appeal from a decree which distributes the estate of Capitol S. Hill, made by the Camden county orphans court.</p>

Mary-Ford Westervelt, by her will, devised a house and lot in the city of New York, then directed that the residue of her property, real and personal, should be divided between three nieces, whom she named, then made specific bequests of jewelry, furniture &c., and then, after indicating how and where she should be buried, appointed three executors, one of whom was Daniel D. Westervelt, her husband.

<p>1. Proof that an owner óf lands employed agents to sell the lands aá mere real estate brokers will not he sufficient to establish authority in such agents to bind their principal by a written contract of sale.</p> <p>2. The doctrine announced in Lindley v. Keim, 9 Dick. Ch. Rep. 418, reaffirmed.</p>

<p>1. ' A married woman may embark her own money and capital in any separate business or trade, may employ agents to carry on such business or trade and may avail herself of their skill and ability to make it successful.</p> <p>2. When a married woman employs her insolvent husband as such an agent, the transaction will be carefully scrutinized, but if there is evidence that the business was established by her with her own money and no evidence that money or capital of the husband was embarked therein, or that his employment was a device to shield from his creditors property or money which ought to be devoted to the payment of his debts, then the profits and earnings of the business will belong to the married woman, though partly due to the business-ability, experience and energy of her husband.</p> <p>3. A married woman united with her two sons and her insolvent husband in the formation of a trading corporation and she and her sons took all the stock issued except one share, which was allotted to the husband without payment. The money paid in by her on her shares was her own. The husband was employed as president and manager of the corporation upon a salary not shown to be unreasonable. There was no sufficient proof that the arrangement was devised to cover from his creditors any property of his —Held, that the undivided earnings of the corporation, represented by her shares of stock, belong to her, though due in part to the skillful management of the business of the corporation by her husband.</p>

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

<p>1. When a municipal corporation is divided, the old corporation retains title to all its property, unless provision is made to the contrary by the act authorizing the division.</p> <p>2. Where the new corporation attempts to interfere by ordinance with such property, the appropriate remedy is by certiorari to set aside the ordinance.</p> <p>3. Trespasses of an ordinary character-, upon public works, are to be redressed by an action at law in the usual manner.</p>

<p>On appeal from a decree in Doremus v. Dunham advised by Vice-Chancellor Pitney. (No opinion filed.)</p>

<p>On appeal from an order of the chancellor, whose opinion is reported in Buckley v. Perrine, 9 Dick. Ch. Rep. 285.</p>

<p>On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in Talcott v. Arnold, 9 Dick. Ch. Rep. 570.</p>

<p>Under the act of March 22d, 1895 {Gen. Stat. p. 2717), the chancellor cannot impose upon the company whose steam railroad is to be crossed at grade by an electric railroad, the duty and responsibility of operating a derailing switch in the line of the electric railroad.</p>

<p>An agreement made between a creditor and Ms debtor, that if the debtor would procure Ms life to be insured, in order to secure the payment of the indebtedness, in an insurance association, naming the sister of the debtor, who •was the wife of the creditor, and who had knowledge at the time of the purpose of the insurance, as beneficiary, in order to comply with the laws of the insurance association, which required that insurance could only be had for the benefit of a blood relative of the insured, and that the creditor would pay the assessments on such insurance, and that, after the death of the debtor, the •creditor, upon receiving the proceeds of insurance, would pay over to the wife •of the debtor whatever balance remained after deducting the indebtedness and interest, and the assessments paid and interest thereon, is an agreement founded upon a good consideration and created a trust in favor of the wife of the debtor, enforceable in equity against the creditor, and the beneficiary named in the certificates of insurance, who received the proceeds of such insurance.</p>

The appellants are the holders of a certificate of guarantee or policy of insurance for the sum of $20,000, issued and delivered to them June 12th, 1893, by the United States Credit System Company, guaranteeing or insuring them against losses upon credits given by them to their customers in business on sales and shipments made by the appellants between June 1st, 1893, and May 31st, 1894.

<p>1. A receiver of a credit system insurance company stands in tlie place of the company as to the allowance or disallowance of the claims against it, and when he acquires knowledge of loss whilst the company was solvent, and does some act that implies that he will not insist upon proper and correct proofs of loss being made, he cannot thereafter set up this omission against an allowance of the claims for pro rata distribution.</p> <p>2. Where the notice and proof of loss are defective, and the insured negotiates as to proper notice and proof, and the proofs are offered and unohjected to by the receiver, and the insured is led to believe, by some act of the receiver, that no defect exists, or that an existing defect is immaterial, the defect is waived and the claim must be allowed.</p>

<p>A, being indebted to B, executed a bond and mortgage to secure the payment of the debt. One of the provisions contained therein was that the prin cipal sum secured thereby should, at the option of the mortgagee, become immediately due and payable for failure to pay any installment of interest within thirty days after it had accrued.- — Held, that the fact that the mortgagee did not exercise his option the first time there was a failure to pay an installment of interest within the time limited, did not deprive him of the right to elect that the principal should become immediately due and payable on account of a subsequent default in the payment of interest.</p>

This appeal is taken by a defendant to a bill in chancery from the following order made ex parte upon the filing of the bill: “It appearing to the court that the said complainants have filed their bill of complaint herein, setting forth that they are the owners of a judgment recovered against the defendant, Henry J. Barr, in the inferior court of common pleas of the county of Middlesex, and that an execution against the property of the said defendant has been issued thereon…

The trust is alleged to result from the investment of trust moneys in lands by a deed which, through mistake and oversight, did not declare the trust. The bill alleges the investment of the trust fund in the land, and that after the recovery of the judgment the mistake was attempted to be corrected by a conveyance in trust to one of the complainants, which recited all the facts out of which the trust resulted.

' On appeal from an order of the chancellor confirming partition of lands under a decree advised May 20th, 1895, by the late ’Vice-Chancellor Green, who delivered the following opinion : . Held: to be conveyed by good and sufficient deeds, so that each of the three parties should hold an undivided third thereof as a tenant in common with the others.

<p>1. A father m extremis, being about to execute a will making his three children his residuary devisees, stayed such execution in order to add a bequest to another person. One of the children, without the knowledge of the others, assured him that if he should execute the will without change, his wish with regard to the intended bequest would be fulfilled. On this assurance he did so execute the document. — Held, that the share in the estate of the child giving the assurance must contribute a third only toward making good the intended bequest.</p> <p>2. Qurnre. Can like contribution be compelled from the shares of the other-children ?</p>

<p>1. An order of the chancellor, on appeal from the determination of the receiver of an insolvent corporation, under the eighty-second section of “An act concerning corporations,” is final and not interlocutory.</p> <p>2. Written contracts, in the absence of fraud or mistake, cannot be varied by parol testimony.</p>

On March 5th, 1884, the defendant was the owner of four bonds of the city of Rahway. On that date he consulted Mr. A. S. Appelget, an attorney-at-law, concerning the collection of the said bonds.

<p>1. Where a suit is brought to determine the ownership of a fund in the hands of the trustee of an intestate decedent, an administrator of such decedent’s estate is a necessary party, and the conflicting claims of other parties to the fund could not be litigated in the absence of a legal representative of the deceased.</p> <p>2. It is error to decree that the fund be paid “to such person as may hereafter be appointed administrator.”</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in McTague v. Finnegan, 9 Dick. Ch. Rep. 454.</p>

<p>On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in Ruckelshaus v. Borcherling, 9 Dick. Ch. Rep. 344.</p>

<p>On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in Duvale v. Duvale, 9 Dick. Ch. Rep. 581.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney^ whose opinion is reported in National Shoe and Leather Bank v. August, 9 Dick. Ch. Rep. 182.</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in Brooks v. Kip, 9 Dick. Ch. Rep. 462.</p>

<p>On appeal from an order of the chancellor, whose opinion is reported in Lynde v. Lynde, 9 Dick. Ch. Rep. 473.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in State v. Jersey City, 10 Dick. Ch. Rep. 116.</p>

<p>Appeals from a decree advised by Vice-Chancellor Reed,, whose opinion is reported in Johnson v. Conover, 9 Dick. Ch. Rep. 333.</p>

<p>On appeal from an order advised by Vice-Chancellor Emery, whose opinion is reported in Delaware, Lackawanna and Western Railroad Co. v. Breckinridge, 10 Dick. Ch. Rep. 141.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Turner v. Houpt, 8 Dick. Ch. Rep. 526.</p>

<p>Heard on pleadings and proofs.</p> <p>The object of the bill is to foreclose a mortgage on land given by Henry C. Spaulding to John Sands Howell, dated June 17th, 1872, to secure the sum of $4,650 in four years, further secured by the bond of the mortgagor. The complainant claims to be the assignee of this bond and mortgage. They were given as part of the consideration money of the conveyance by Howell, the mortgagee, and others to Spaulding of the tract covered by the mortgage, containing ten and twenty-five hundredths acres of land situate at Secaucus, in Hudson county.</p> <p>By deed of the same date, June 17th, 1872, Spaulding conveyed nine hundred and four thousandths of an acre, part of the premises, to the Montclair Railway Company. This was a narrow strip upon which it was proposed to build, and upon which a section of the railway of that company was afterwards built.</p> <p>The deed to Spaulding was acknowledged by a part of the grantors on the 17th of June, by another part on the 19th and by another part on the 21st of June, 1872.</p> <p>The mortgage was acknowledged by Spaulding on the 28th of June and the deed for the strip to the railway company was acknowledged on the same day.</p> <p>The two deeds were recorded on the 2d of July, 1872.</p> <p>The mortgage from Spaulding to Howell sought to be foreclosed was not recorded until the 10th of July, eight days after the record of the deed from Spaulding to the railway company.</p> <p>Spaulding was one of the directors of the railway company, was its superintendent and purchasing agent, and in the purchase acted entirely as the agent and trustee of the railway company. He held the title to the nine acres and a fraction of-the whole tract not conveyed to the railway company, in trust for it. The whole transaction was carried through with the full knowledge and consent, previously obtained, of all the officers of the railway company, so that the railway company had full and complete notice of the mortgage to Howell for part of the con- v sideration money.</p> <p>At the time of this transaction the railway was under a first mortgage to Marcus L. Ward and Abram S. Hewitt, as trustees for certain bondholders. That mortgage was dated the 1st of September, 1870, and recorded on the 2d of September, 1870, in book of deeds for Hudson county. The description of the premises covered by it is as follows:</p> <p>‘ ‘All and singular the line of railway known and to be known as the Montclair railway, as the same is being and shall be constructed from the line of the State of Yew York, at or near Greenwood lake, to the Hudson river, also the branches thereof, * * * including all the railways, ways, rights of way and depot grounds or other lands, all tracks, bridges, viaducts, culverts, fences and other structures &e., * * * and all real and personal property held or acquired or hereafter to be held or acquired by the said company, its successors or assigns, for use in connection with the aforesaid railway and branches of the party of the first part, or with any part thereof, or with the business of the same, * * * and also all franchises connected with or relating to the aforesaid railway and branches or to the construction, maintenance or use of the same.”</p> <p>A second mortgage was given by the railway company to Mr. Hewitt alone, as trustee, using the same description of the premises as above set out, on the 1st of November, 1871, and recorded on the 15th of January, 1872, to secure another issue of bonds.</p> <p>The second mortgage was duly foreclosed and the property purchased by and conveyed to Mr. Hewitt, as trustee, by master’s deed dated January 7th, 1875.</p> <p>The first mortgage was duly foreclosed and conveyed by master’s deed to Marcus L. Ward and Abram S. Hewitt, trustees, September 27th, 1875. Ward and Hewitt conveyed by deed dated November 29th, 1875, to the Montclair and Greenwood Lake Eailway Company, a new organization, and this second railway company mortgaged to George Walker and Amzi Dodd, trustees, by deed of trust dated December 1st, 1875, all its lands and property of every kind. This mortgage was foreclosed and the property purchased by and conveyed to Abram S. Hewitt, Cyrus W. Field and John B. Dumont by master's deed dated October 5th, 1878, and Hewitt, Field and Dumont .conveyed by deed dated November 5th, 1878, to the New York and Greenwood Lake Railway Company, the defendant herein. Neither Howell nor his personal representatives were made parties to either of these foreclosure proceedings.</p> <p>Receivers were also appointed of this railway company, after the conveyance of Spaulding to it and before the first foreclosure, and they also conveyed to Hewitt as trustee; but their conveyance did not cover any land in Hudson county, and counsel for the railway company relied entirely upon the mortgages of 1870 and 1871.</p> <p>The principal question is whether the foreclosure of the mortgages of 1870 and 1871 had the effect of divesting the lien of the complainant's mortgage upon the strip of nine hundred and four thousandths acres constituting a part of the railroad bed.</p> <p>Another question was raised as to the standing of the complainant, Daly, in this court. Howell, the mortgagee, died not long after the giving of this mortgage, leaving a will which was offered and admitted to probate in the city of New York, on the 28th of January, 1873. Letters testamentary were issued by the surrogate of New York city to Henry K. Van Siclen and William Joyce, executors named therein, both of the State of New York. Subsequently, in 1879, proceedings were had to remove both these executors, with the result that both executors were removed by decree of the surrogate, dated October 13th, 1879, and their letters testamentary were superseded. Subsequently an order was made in the supreme court of the city and State of New York, on the 17th of October, 1879, appointing Edward C. Sheehy trustee under the will of Howell, in the place and stead of Van Siclen and Joyce, and it was ordered that upon service of a copy of the order upon Van Siclen and Joyce they should pay over, assign, transfer and deliver to Sheehy all the money, securities, assets and property of every kind and description in their hands or possession belonging to the estate of Howell. Under that order demand was made by Sheehy upon Van Siclen and Joyce for the assets of the Howell estate, and as a part of those assets Van Siclen and Joyce handed to Sheehy the bond and mortgage here in question, but did not execute any formal assignment of it. Sheehy then duly assigned the mortgage to the complainant, Daly.</p>

<p>1. Certain secured bondholders of an insolvent corporation were not notified by mail, with the other creditors, of the time limited for the presentation of claims against the corporation, although the order of limitation was published. The time expired, and the bondholders found their security insufficient to pay them in full, and applied to be admitted as creditors for the balance. Applicants had paid value for their bonds. — Held, that the application should be granted.</p> <p>2. They were also entitled to a preferential dividend to put them on equality with the other creditors, who had already received a dividend on their claims.</p> <p>3. A creditor of an insolvent corporation, who holds as collateral secured bonds of the corporation, the security for which is insufficient to pay in full either the bonds or the debt, cannot be admitted as a creditor for the balance due on the bonds as well as for the debt.</p>

<p>1. Where an answer is prayed under oath, and defendant denies a material', allegation of the bill, complainant must plead further, or offer proof in behalf of the allegation.</p> <p>2. An allegation that “defendant now brings the money into court” is-equivalent to an allegation that defendant, either in person or by solicitor, walked into the court with his answer, and brought the money with him, and, with the answer, delivered it to the clerk.</p> <p>3. In a bill to foreclose, where defendant has pleaded a tender into court of the amount due, and the case has been on the docket for several years after’ the pleadings were settled, the -record of the moneys paid into court may he • inspected to ascertain whether defendant’s money was actually received and disposed of in accordance with the statute and the court rules.</p> <p>4. Where the amount due is voluntarily paid into court by the owner of the-equity of redemption in a bill to foreclose, and the payment itself and its purpose is pleaded in the answer, there need not he a special order of the court by the chancellor on notice to the complainant, rule No. 34 requiring the-clerk to give immediate notice to the chancellor of all moneys paid into court..</p>

Exceptions to master’s report. This is an ordinary bill to foreclose a mortgage made by a man while single, upon a house and lot in the city of Paterson. He afterwards married the defendant Mary E. Van Riper, and died leaving one child, the defendant Mrs. Van Iderstein, having devised the premises to his sister, Mrs. Merselis, the complainant, and two others, in trust for the use of Mrs. Van Iderstein for life, and at her death to go to her children.

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

<p>The suit is in the nature of one for specific performance. The complainant, by his bill, sets out that he is the owner of a lot of land in Hoboken, known as No. 165 Newark street, and that on the 2d of October, 1891, he demised the same unto one Adolph Horn, for the term of five years from that day, and the lease contained a clause in these words:</p> <p>“And it is further agreed that the tenant shall have the option of extending this lease for the further period of five years for the same rent, unless the landlord shall pay a fair price for the building that is to be put on the premises by the tenant, provided three months’ notice in writing is given by either party before the expiration of this lease.”</p> <p>The bill further sets out that a building was erected on the premises by Horn, who occupied the same, and, in the year 1894, assigned the leasehold interest to the defendant John Kelly, who took possession and has occupied as assignee; that subsequently Kelly executed a chattel mortgage on the premises to the defendant the Bavarian Star Brewing Company, to secure $700; that on the 30th of June, 1896, and more than three months before the end of the term created by the lease in question, the complainant gave written notice to Horn and Kelly that he had elected that the lease should not be extended for the further term of five years, but that the same should terminate and come to an end on the 2d day of October then next, and that the complainant was willing to pay a fair price for the building erected thereon by Horn, and that Kelly was notified to quit and surrender the premises at the end of the term. .</p> <p>The bill further alleges that a fair price of the building was $250, and that complainant tendered that amount to Kelly, but that Kelly refused to accept it. Complainant tenders himself ready and willing to pay to Kelly, or to the mortgagee, as the court may decree, such sum as the court shall deem a fair price for the building, and- he alleges that he cannot safely pay to either without the consent of the other, except by the direction of this court.</p> <p>The defendants have answered separately. Kelly admits the material allegations of the bill, except the'cost of the building and the value of the property. He alleges that the building originally cost $1,000, and that it is worth that now. He admits the mortgage, and that the full amount of $700 is due upon it. Finally, he takes the point in his answer that this court has no jurisdiction, and that the complainant has full remedy at law.</p> <p>The answer of the brewing company admits simply that it had notice of the clause of renewal in the lease; sets up that the whole amount is due, with interest, on the mortgage, and prays such relief as the court may deem equitable and just.</p> <p>There is no allegation in the pleadings that Kelly ever gave complainant notice, as required by the lease, that he elected to renew the term for five years, and no evidence of any such notice was produced.</p> <p>Evidence was gone into as to the value of the building. The witnesses for the complainant placed it at about $250, or a little more, and those for the defendant placed it at upwards of $600. Horn, the lessee, called by complainant, stated the original cost of the building, with sewer and water connections, to have been $611. A witness for defendant went into a detailed statement of its present value, and fixed it at $635, that being the amount it would cost to replace it.</p>

<p>1. A sheriff continued a foreclosure sale because of an alleged insufficient bid, and, at the adjourned sale, bid in behalf pf a third person a much larger amount, and the property was sold to the bidder at the first sale at a greatly increased price. — Held, that though the increase of the price would increase the fee of the sheriff, it was his duty to adjourn the sale — Gen. Stat. p. Sill providing for confirmation of foreclosure sales only where the court is satisfied that the property has been sold at the best price —and the sheriff is entitled to fees for the adjournment as based on the increased price.</p> <p>2. Where a sheriff sells land in foreclosure, he is not entitled to §3.50, given by Gen. Stat. p. 1456, for serving a writ against lands and making inventory and return.</p>

<p>Motion to set aside a return to an inquisition finding J. F. Kennedy a lunatic. Heard on petition and affidavits.</p>

<p>On application for preliminary injunction. Heard on bill and affidavits, and answers and affidavits.</p>

On motion to strike out so much of the answer as reserves exceptions and denies combinations and confederacy, against the provisions of rule 214; also to strike out the entire answer, and for a decree that the mortgage of complainant is a prior lien to that of Blake. The bill is filed by Hamill to foreclose a mortgage made to him on March 14th, 1894, by the Inventors’ Manufacturing Company, the then owners of the mortgaged premises.

<p>On final hearing.</p>

<p>On final hearing.</p>

On bill to foreclose &c. The bill in this case was originally filed by Josephine Whit-taker, as sole complainant, against the Belvidere Roller Mill Company, Adam B. Searles and William H. Searles, executors &c. of Erederick Searles, deceased, and others, defendants, to foreclose a mortgage, with prayer that the defendants answer under oath, and for the ordinary decree for foreclosure and sale of the mortgaged premises.

On bill to foreclose. This is a bill to foreclose a mortgage made by the defendant-John H. Williams to John J. O’Neil and George PI. Becker, to-secure the payment of a bond made by Williams to O’Neil and Becker, conditioned for the payment of $35,000 within five years from the date thereof, with interest payable half yearly at the rate of six per cent, per annum.

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

On bill and demurrer. This bill is filed by Frank Lynwood Garrison, complainant, against George M. Sinclair, John J. Zimmele and the Technic Electrical Works, defendants. The complainant states that the Technic Electrical Works was duly incorporated under the laws of New Jersey, on July 14th, 1893; that the object of the incorporation was the manufacture and repair of electrical and other machinery. The company commenced business in the month of September, 1895.

On bill, answers and proofs. This is a foreclosure suit, making the Newark German Hospital the-holder of the title, and several subsequent mortgagees and a judgment creditor parties defendant, and praying foreclosure of sale of the mortgaged premises in the usual way.

<p>1. A tenant, having no contract with or consent from the landlord, constructed a back building and permanently attached the same to the rear, end of a house on the demised premises, in such manner that its removal will leave the original structure without any enclosure at the rear end. The original building and the added structure have, since the latter was built, been used together for a hardware store, neither being usable for that purpose without the other. At the time the back building was constructed, the tenant had no formed intention either to make a permanent addition to the premises or to remove the structure. — Held, the back building has become part of the freehold.</p> <p>2. The court of óhancery has jurisdictiion to stay waste by enjoining the removal of such a structure by the tenant.</p>

On bill, answer and proofs. The bill in this case is filed to compel the specific performance of an agreement claimed to have been made by the defendant Scull, through his agents, Porter & Crowley, with the complainant, on the 27th of September, 1895, for the sale of a tract of land situate on the east side of Chelsea avenue, and designated as No. 11 in block 12 of the Chelsea Beach Company, as shown on that company’s land on file in the Atlantic county clerk’s office.

<p>Appeal from a decree of the Middlesex county orphans court appointing Daniel G. Stubblebine and Emma Stubblebine administrators de' bonis non cum testamento annexo of the estate of Henry H. Booraem, deceased.</p>

Appeals from two decrees of the orphans court of Mercer county. Susan Hill died September 6th, 1896, intestate. She left six children, Charles C., Henry, Elwood, Hamilton, Edward F. and Zillah, now married to Daniel J. Bowers. On September 22d Charles C. applied to the surrogate of Mercer county for letters of administration.

The subject of the trust is land. The prayer is, first, that the trust may be decreed to have been surrendered and determined; or, second, that the infant trustee may be decreed to convey the land without consideration to such person as the cestui que trust shall direct; or, third, that the infant trustee be removed and a new trustee be appointed.

<p>On appeal from a decree in Schmidt et ux. v. Quinzel, advised by Frederic Adams, advisory master.</p>

<p>A deed, which, wheni dram, was intended by the grantor to operate to put his property out of the reach of his creditors, will not be set aside as fraudulent if it appears that, at the time of its delivery and acceptance by the grantee, the sole object of both the parties to the instrument was that it should be held by the grantee as a security for the payment of a debt due from the grantor to' a third person.</p>

<p>On appeal from a decree ia, Guarantee Trust and Safe Deposit • Co. v. Maxwell, dated January 13th, 1896, advised by Vice-Chancellor Pitney.</p>

<p>1. Whether or not the holder of a confessed judgment is barred by the eightieth section of the Corporation act from obtaining a preference over the other creditors of an insolvent corporation depends not upon the intention with which the bond and warrant of attorney were given, but upon the intention with which the judgment itself was confessed. If the object to be attained in confessing the judgment was to give the holder thereof a priority over other creditors, the consequences provided by the act necessarily follow» notwithstanding the fact that, at the time of the execution of the bond and warrant of attorney, no intention to prefer existed.</p> <p>2. Where a creditor who files a bill to obtain a decree of insolvency and the appointment of a receiver against a bankrupt corporation desires to attack the validity of the claim of a co-ereditor, he should do so upon proceedings had before the receiver on the question of the distribution of assets. It is-improper practice to make such attack by the bill of complaint.</p>

<p>On appeal from a decree in Jachson v. Cummings, advised by Washington B. Williams, advisory master.</p>

The principle invoked for the complainant’s relief is well stated by Professor Pomeroy (2 Pom. Eq.

<p>On appeal* from an order advised by Vice-Chancellor Reed, whose opinion is reported in National Docks Railway Co. v. Pennsylvania Railroad Co., 9 Dick. Ch.. Rep, 142.</p>

<p>On appeal from an order advised by Vice-Chancellor Emery, whose opinion is reported in Edwards v. McClave, 10 Dick. Ch. Rep. 151.</p>

<p>On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in Protection Building and Loan Association v. Knowles, 9 Dick. Ch. Rep. 519.</p>

<p>On appeal from a decree of the ordinary, whose opinion is reported in Ivory v. Klein, 9 Dick. Ch. Rep. 379.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Beach v. Sterling Iron and Zinc Co., 9 Dick. Ch. Rep. 65.</p>

<p>On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in Robeson v. Shotwell, 10 Dick. Ch. Rep. 318.</p>

<p>On appeal from an order advised by Vice-Chancellor Grey, whose opinion is reported in Vineland National Bank v. Shinn, 10 Dick. Ch. Rep. 415.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Powell v. Cash, 9 Dick. Ch. Rep. 218.</p>