Volume 58 — New Jersey Equity Reports

<p>1. Owners of land on the banks of a stream are entitled to have the water flow to them unpolluted.</p> <p>2. Owners of different parcels of land on the banks of a river may join as complainants to enjoin the discharge of sewage polluting the river. Such a joinder is not precluded by the fact that one of the owners is a large city, alleging special injury, occasioned by the fact that a valuable pumping plant erected on the banks of the river, as a means of supplying the city with water under a grant from the state of a right to take pure water from the river, is rendered worthless.</p> <p>3. Pollution of a river by the discharge of city sewage gathered from a large area, and caused to flow into the stream by artificially-constructed grades, cannot be justified as a natural and reasonable use of the river.</p> <p>4. The act (P. L. of 1868 p. 106) authorizing the city of Paterson to discharge its sewage according to maps exhibiting sewer outlets in the Passaic river, does not license the city to create a nuisance by discharging such quantities of sewage as will pollute the river.</p> <p>5. Riparian owners who sue to restrain a city from discharging sewage into a river as soon as the sewage begins to contaminate the waters are not guilty of laches.</p> <p>6. Delay of three or four years after such contamination had commenced is excused by P. L. of 1896 p. SO, appointing commissioners to suggest a meaus of dispensing with the necessity of discharging sewage into the river, as the owners might reasonably suppose that an injunction would be unnecessary.</p> <p>7. In a suit by riparian owners to enjoin the discharge of city sewage into a river, the owners of the houses connected with the sewers are not necessary parties. If they were proper parties, the fact that they are very numerous and could be represented by the city is a sufficient excuse for not making them defendants.</p> <p>8. Equity will enjoin the contamination of waters creating a public nuisance, though redress may be had on indictment by abatement of the nuisance.</p> <p>9. Pending a hearing in a suit to enjoin a city from discharging sewage into a river, an injunction may be granted restraining the city from increasing the discharge where the potableness of the water is destroyed and noxious smells arise from the polluted water, which produce general discomfort to the inhabitants along the river, but the city will not he enjoined from continuing to discharge sewage until it has had a reasonable time to provide other means to dispose thereof.</p>

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

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

The defence of insanity to a sealed instrument is available at law under the plea or replication of non est factum,; hence equity will not intervene at the instance of a plaintiff at law to enjoin the use by the defendant at the trial at law of a release of the cause of action on the ground that it was executed when the releasor was insane, in the absence of proof that fraud was practiced in procuring its execution.

<p>1. A judgment that plaintiff did in fact make a valid and enforceable contract at law is no bar to a suit in equity to relieve him from its effect on the ground of mistake.</p> <p>2. A buyer having defaulted in payment of about one-half of the price, the seller, who had reserved the title, agreed to transfer the property for $525 cash, under the impression that the amount due was $650, when in fact it was $950. He discovered the mistake immediately, renounced the agreement, at once returned the check given in payment, and refused to make the transfer. — Held, defendant not having acted on the agreement to such an extent that a rescission would be to his prejudice, that equity would relieve the seller from the agreement.</p>

<p>1. Gen. Siat. p. 3359 ¶ 368, giving a tax lien priority over other encumbrances, does not apply to prior liens for taxes held by the state.</p> <p>2. Under Gen. Stat. p. 3357 ¶ 354, authorizing the township to become a purchaser at a tax sale, and to thereafter sell the premises for the price paid and subsequent taxes thereon, and paragraph 365, requiring a redemptioner to pay the subsequent taxes in addition to the price for which the lands were sold, a sale of lands by a town for delinquent taxes assessed against them subsequent to a sale thereof to the town for prior delinquent taxes, divests the title of the town under the earlier sale.</p> <p>3. Under Gen. Slat. p. 3287 ¶ 33, making the tenant personally liable for taxes on the premises, which he may deduct from the rent after paying the same, a person in possession of lands, enjoying the rents and profits thereof, either as tenant or without attorning to anyone, cannot acquire a title to the premises, as against the owner, by purchasing the outstanding tax title.</p> <p>4. Since Gen. Stat. p. 3354 ¶ 888, requiring the redemptioner from a tax sale to pay the price, with costs, expenses and twelve per cent, interest, does not expressly give the landowner the right to come into equity to redeem, equity will compel him, as a condition of permitting him to redeem, to pay all taxes paid by the purchaser, on the principle that he who seeks equity must do equity.</p> <p>5. Equity will compel the holder of a tax title, who has been in possession of the premises and received the rents and profits thereof, to account for the same as a condition precedent to his right to compel the owner, in redeeming, to reimburse him for taxes paid while he was in possession.</p>

The object of the bill is to foreclose two certain mortgages dated April 12th, 1894, both given to secure the same bond, which is conditioned to pay the sum of $15,000 in one year, with interest. One mortgage covers real estate, to wit, a paper-mill plant in the city of Hoboken, and the other personal chattels consisting of machinery, &c., situate therein. Two questions (among others) arise upon the pleadings and t he case made. First.

<p>1. A wife who, after her husband’s death, occupies a portion of decedent’s premises, with the family, and rents the remainder, is not entitled to retain possession of the whole under the right of quarantine.</p> <p>2. Where a child, while residing with her mother, earned and delivered to her wages sufficient for her support, the mother cannot escape an accounting to her for rents of the premises of her deceased husband, in which the child had an interest, because she occupied them with her family, and lived from the rents.</p> <p>3. Complainant, after reaching her majority, by bill in chancery against her mother, sought a partition of her father’s realty and an accounting for the rents. The mother, as guardian of complainant, claimed that such rents must be accounted for by her as guardian in the orphans court, where she had accounted for a portion of the rents collected. — Held, that as to the rents accruing after the accounting to the orphans court, the chancery court has jurisdiction.</p> <p>4. Complainant sought in chancery a partition of her father’s realty and an accounting by her mother for rents, for a portion of which her mother, as guardian, had accounted to the orphans court. Complainant and her mother had occupied for a time a portion of a tenement on the premises. — Held, that defendant must account for the rents of all the premises from the time of the accounting to the orphans court, except for the portion of the time that complainant lived at home, as defendant is entitled to her dower therein, which claim is inconsistent with her holding any part under the right of quarantine.</p> <p>5. The right of a parent to the earnings of his or her infant child is subject to the burden of the support of the infant, which burden is not relieved by the fact that the infant has an independent income.</p>

<p>1. Though a township ordinance granting powers and franchises to a street railway corporation provides that the township may adjudge a breach of duties and obligations and declare a forfeiture, an order passed pursuant thereto, declaring a forfeiture and decreeing a sale of the corporate property, is judicial in its character, and equity has the same power to intervene and modify the proceeding as it would have to interfere in a proceeding in a court of law.</p> <p>2. When a judicial act is in any particular contrary to the principles of equity, the fact that there May be a remedy at law on other grounds is not generally a suflScient reason to prevent equity from interposing its appropriate remedy on grounds not available at law.</p> <p>3. Where a street railway corporation has expended large sums of money and exercised due diligence in building and operating its road, so as to comply with an ordinance of permission, but unforeseen circumstances have caused a delay, which has occasioned no pecuniary injury to the township or its inhabitants, equity will interfere to restrain the adoption of an ordinance by the township declaring a forfeiture of the franchise of the corporation because it did not comply with the statute of permission, which provided that cars should be sunning at a certain headway, on a continuous line of double track, within a specified time.</p>

<p>A complaint by a wife alleging that her husband, whose residence was in New Jersey, had gone to North Dakota, and after a pretended residence there for a few months, commenced a suit against her for divorce, presents a case so inequitable as justifies a court of equity in 'the former state in restraining its prosecution.</p>

<p>1. Corporations are authorized by statute to issue common and preferred stock, which provides that the holders of the latter shall be entitled to receive a fixed yearlyAividend, to be expressed in the certificate. Pursuant to its certificate of incorporation, which authorized it to issue preferred stock entitled to a certain dividend, if earned, without reservation of any right of the stockholders to modify such provisions, a corporation issued certificates of preferred stock, entitling the holders to the dividends named in the certificate of incorporation without reservation. — Held, that the certificate of incorporation constituted a contract between the stockholders, and the certificate of shares a contract between the stockholders and the company, entitling the holder to the dividend named in the certificate, which could not be reduced without his consent. '"</p> <p>2. The statute authorizing a corporation, with the assent of a majority in interest of its stockholders, to amend its certificate of incorporation as of date of the recording and filing of the original, does not authorize a corporation to reduce the rate of dividend expressed in a preferred stock certificate, where the company reserved no power either in its certificate of incorporation or the certificate of stock to change such rate, since such alteration would impair the obligation of the contract with the stockholder.</p> <p>3. Where a corporation made an agreement with another by which the former was to reduce the dividends payable on its preferred stock, and the latter was to pay such reduced dividend direct to the stockholders, the alteration of the certificate of incorporation of the former so as to provide for such reduced dividend will be enjoined at the instance of a non-assenting holder of preferred stock, since his legal remedy would be inadequate.</p>

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

<p>1. A judgment in personam in a state court without personal service, and in violation of Const. U. S., amend., art, 14, prohibiting the deprivation of a person of property without due process of law, is not valid within the state, and may be collaterally impeached in an action brought in the state court on such judgment</p> <p>2. A judgment for alimony rendered against a defendant domiciled in another state, without service of process within the'state, is a decree fixing a personal liability without “due process of law,” prohibited by Const. U. S., amend., art. 14.</p>

<p>A suit by a stockholder against á receiver of an insolvent corporation to rescind bis contract for the purchase of its stock, and to have established against the receiver as a claim the amount paid therefor, on the ground of false and fraudulent representations made 'to him by the president of the company as to its financial condition and the issue of its stock, cannot be maintained" when after such purchase the plaintiff acquired information as to the financial condition of the company and the issue of its stock sufficient to disclose the falsity of the representations, or to put him on inquiry, but took no steps to repudiate the purchase until nearly three years later.</p>

<p>On application for preliminary injunction.</p>

On bill to recover a legacy. Robert Todd bequeathed to his daughter Jane $1,000. Todd died and the money was paid to Jane, who loaned it to her husband, David T. Stiger. Jane died without issue, and the next of kin of the testator claimed that upon Jane’s death the legacy to her by force of item 7 of the will came to them.

<p>The mere fact that certain shares of stock in the mortgagor company were found among the effects of a deceased mortgagee, and that the promoter of the mortgagor company, in negotiating with the representatives of the mortgagee, had promised certain shares of stock in the company as an inducement to bring about the loan secured by the mortgage, is insufficient to show usury in the transaction, where one of said representatives testified that the agreement was merely that he was to have shares of stock for his services, and that after the loan he gave the certificate of stock found among decedent’s effects to decedent as a gift.</p>

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

The bill in this cause is filed by an executor for instructions. Cecelia Stanton, the testatrix, died on the 22d day of August, 1895.

This is a bill filed to collect a sum of money which represents the principal and interest upon certain deposits made by William P. Sherman, then surrogate of the county of Mercer.

The complainant is the executor of Willard Perrine, deceased, who was one of the executors of the will of his father, David M. Perrine, deceased. The complainant, as the executor of Willard, seeks to be subrogated to the position of a creditor of the estate of David M. Perrine, whose debt Willard paid after the death of his father; and seeks to have certain land, the title to which is now in the heirs of David M. Perrine, sold to pay the amount of the said debt.

This bill is filed to obtain the construction of the will óf Cornelia Jane Van Deventer. After directing the payment of her debts and giving a number of small legacies, she then provided as follows: “Sixth. The remainder of my estate I bequeath to my first husband’s stepmother and her children. Her name is Mrs. Rebecca Hand.” This is the clause to be construed. The will was executed on April 1st, 1892. The testatrix ditd on January 27th, 1895.

On bill, answer and proofs. The complainant owns a three-story brick house fronting on Mickle street, in the city of Camden. A part of the first floor of this house is used as a drug store, and the room above, fronting on Mickle street, is used by complainant as a physician’s office. This house is thirty feet north from the southeast corner of Third and Mickle streets. One hundred feet north of Mickle street and parallel with it is Bridge avenue.

John S. Connolly, of the borough of Pleasantville, Atlantic county, made application on March 29th,'1883, through Pleasantville Lodge, No. 26, to the Grand Lodge of the Ancient Order of United Workmen of Maryland, New Jersey and Delaware, for a beneficiary’s certificate.

On bill for construction of a will. Samuel B. Stafford died on October 16th, 1897, leaving a will, the fourth clause of which reads thus: “ To the children of Dr. James B. Stafford, I bequeath $500 apiece; if any of his said children shall have died prior to my death leaving issue, such issue shall receive the share which the parent would have taken.” The admitted facts are these: The testator had one brother, Joseph B. Stafford, and one sister, Sarah S. Stafford.

The Locomotive Engineers’ Mutual Life and Accident Insurance Association was incorporated in 1894. Before that time the organization had existed and insured lives as a voluntary association. In 1884, George Winterstein, a locomotive engineer, insured his life in said association in one policy for $3,000 for the benefit of his second wife, who was then living. This wife died on November 14th, 1889.

<p>Encumbered property was purchased by S. for B. S. instructed B. to have the deed made to himself direct, “ making you subject to the present bond and mortgage now against the same.” In her letter she stated that she would guarantee B. that she (S.) would pay off the mortgage. B. took the deed and therein covenanted to pay the mortgage. — Held, that this covenant to pay was a sufficient consideration for the guarantee of S. to discharge the mortgage indebtedness.</p>

<p>• An acknowledgment of a mortgage made to one of two executors, as such, before a master who was the other executor, is valid, where the mortgage on its face does not disclose his interest therein, since the taking of the acknowledgment was a ministerial act.</p>

<p>1. Where, in action to foreclose a mortgage, the defence is usury and the proof shows a usurious bargain, but the usurious contract proved does not correspond with that set up in the answer, the variance is fatal.</p> <p>2. Where, on foreclosure, defendant pleads usury, but there is a variance between the contract as set up in the answer and as proven by the evidence, unless complainant consents to forego the usury, defendant will be allowed to amend his answer to conform to the proofs.</p>

<p>Equity has no jurisdiction of a bill by a widow praying a decree that under her husband’s will she took a legal estate in fee-simple in all his real estate as against her children, whose answer merely asks that their interests be protected.</p>

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

On bill and demurrer. The defendant Aletta Y. Lindsley was in 1893 the sole owner of a tract, of land in Somerset county. In May of that year, she and four other persons, who do not appear to have had any interest whatever in those lands, made their joint bond to the complainant, conditioned to secure the payment of $4,000 in one yeai', with interest.

On bill, answer and proofs. This bill is filed for the specific performance of an agreement to convey lands. The complainant was in 1897 the owner of a house and lot in Burlington, New Jersey, which was clear of mortgage, and the defendant owned the equity of redemption of a house and lot in Camden, New Jersey.

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

On bill, answer and proofs. Thomas H. Hawkins in his lifetime resided in Vineland, New Jersey, where he owned considerable real and personal property. He died in February, 1890, leaving him surviving his only child and sole heir-at-law the complainant, Mary E. Bird, and his second wife and widow, Ella H. P. Hawkins.

<p>1. When the complainant’s title to the property threatened with injury, appears on the face of the bill and accompanying affidavits to be defective, a preliminary injunction will not be allowed.</p> <p>2. Title to lands in New Jersey which lie between mean high and low-water mark, is in the State of New Jersey. An owner of lands lying adjacent to the-shore, who has not acquired the state’s title to the shore in the mode prescribed by the riparian acts, is not the owner of the shore, and will not be allowed an injunction to restrain the removal of a wharf .resting upon piling, driven in the shore, through and over which the tide flows.</p>

On bill, answer and proofs. These two suits are brought to determine the ownership of two policies of life insurance, or the right to the moneys payable-thereon, and as the basis of the' claims of the representatives of William L. Lance, to both policies, is the same, the causes have-been heard together by agreement of all parties.

On bill, answer and proofs. The bill alleges an agreement between the complainant and' defendant, whereby the defendant was to carry on a certain hotel business at Spring Lake, and turn over to the complainant periodically one-half of the profits; thát the business relation between the defendant and complainant was a partnership, still in force; and prays for an accounting and payment by the defendant to the complainant of one-half of the profits.

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

<p>Upon the proofs established — Held, that the deeds in question were not collusively withheld from record and are not fraudulent as against complainants.</p>

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

<p>On application for preliminary injunction. Heard on bill and affidavits and answering affidavits and stipulation.</p>

<p>On amended bill for injunction and motion to strike out portions of amended bill.</p>

<p>On application for preliminary injunction. Heard on bill and affidavit and answer and affidavits.</p>

<p>Upon the facts as shown in this case — Held, that the evidence is insufficient ¡to establish a trust in the defendants in respect to the lands in question.</p>

<p>On bill, &c. Heard on bill, answers, replication and oral j> roofs. '</p>

<p>On bill to foreclose, &e. Heard on bill, answers, replication and proofs.</p>

<p>1. The fact that employers, when discharging an employe, gave certain' reasons therefor at the time, does not prevent them from assigning additional reasons in an action for such discharge.</p> <p>2. Where an employe who had agreed to work faithfully for his employers’ interest secretly examined their books, to which he had no right of access, such act was a breach of his contract, and his employers, acting in good faith, -were entitled to discharge him.</p> <p>3. When an employe wrongfully examined his employers’ books, to which he had no right of access, the fact that such employe’s refusal to obey orders to instruct another in his duties was anticipated, and brought about by his employers to give them an additional reason for his discharge, is not sufficient to show bad faith on their part in discharging him for his misconduct in secretly examining their books.</p> <p>4. In settlement of an employe’s interest in a firm, a contract was made by which he agreed, in consideration of a payment of money and a salary for future employment, to continue to work faithfully for his employers’ interest. The contract further provided that his employers should execute a trust of certain securities to be paid to him on the completion of the contract, and that, if he was 'discharged for cause, such securities should be returned to them. — Held, that such employe had no interest in the securities prior to the completion of the contract, and, on being discharged for misconduct before the expiration of the term, he was not entitled to recover them.</p>

<p>On application for preliminary injunction against cutting off water-supply.</p>

<p>1. In a suit to compel, for false representations, repayment of ¿money paid for stock, brought by the purchaser against one who was treasurer of a mining •corporation, it appeared that complainant purchased of defendant certain •shares of stock and paid therefor partly in cash and gave a mortgage for the balance of the price, at the request of the vendor, to a third party, and that-he was induced to purchase said stock by the false and fraudulent representations of defendant. The mortgagee not being made a party nor the validity of the mortgage questioned— Held, that the remedy at law being adequate, equity would not entertain the bill.</p> <p>2. One who, after he has discovered the falsity of representations made by an officer of a corporation which induced him to purchase shares of its capital stock, institutes insolvency proceedings based on his rights as a stockholder, cannot rescind the contract of purchase, but is relegated to an action at law for damages for the fraud.</p> <p>3. In an action by complainant against defendant to recover the money paid because of false representations as to the value of the land, whereby he was induced to purchase the shares, that the want of legal corporate existence is not a ground for equitable jurisdiction.</p>

<p>Several judgment creditors of a common debtor may join in a bill to set aside a fraudulent transfer made by their debtor.</p>

<p>On final hearing.</p>

<p>On final hearing.</p>

<p>1. An assignment to the wife of a decedent of securities standing in his name was found after decedent’s death. The assignment stated that it was made to protect his wife.from loss of bonds he had borrowed from her with which to raise money, and was signed by one witness, who testified that in executing the paper decedent told him he was about to use some of his wife’s securities to obtain money, and in order to save her from possible loss, was settling over to her certain securities of her own. — Held, .that the document should be sustained as a declaration of trust.</p> <p>2. Where a declaration of trust, executed by a decedent and found among his papers, had been amended by him after its execution, by the substitution of different securities, it is to be presumed that the intention was that the declaration should be operative as amended.</p> <p>3. The fact that an insolvent decedent had made a declaration of trust covering certain securities, to protect his. wife from loss of bonds belonging to her, used by him to raise money, does not, in case such securities are insufficient to cover her loss, give the wife a preference in the distribution of the general assets over other creditors, where it is not shown that the assets include the, identical money raised by decedent on bonds belonging to his wife.</p>

<p>1. Where an owner sells a portion of his lands with a covenant restricting its use, a subsequent grantee of another portion from the same owner may enforce the covenant against the original grantee and against all subsequent purchasers from him, with notice of the covenant.</p> <p>2. -A-prior purchaser from the original owner cannot enforce a restriction imposed by the latter upon a lot subsequently conveyed, unless in the prior-deed there was a grant of a right in the residue of the land retained by the-vendor, or a stipulation that the restrictions put upon the lot sold by the prior deed should also be imposed upon the remaining property when sales should be made to subsequent purchasers, or other indications that all the lots were-sold as parts of a uniform building scheme.</p> <p>3. To justify the issuing of a preliminary injunction the case shown by the complainant must exhibit a right free from doubt or reasonable dispute. '</p>

On bill, answer and proofs. This is a suit seeking to enjoin the defendants from interfering with certain signs which the complainant had erected on a tract of meadow land lying along the West Jersey and Seashore Railroad near Atlantic City. The signs are business advertisements, painted on a wide board surface, which is built upon posts firmly set into the ground, so that they last- for years.

<p>1. A devise of all the residue of the testator’s estate 'and property will pass the territory of his lands not otherwise disposed of and all his title thereto.</p> <p>2. Where the words of a residuary devise plainly pass a fee, other language in the will will not be construed to impute to the testator an intent to die intestate of the residue, if such construction can be avoided. Presumptions in such case should favor a construction that the testator intended to die testate rather than intestate.</p> <p>3. Where the dominant purpose of the testator plainly appears on the face of a will, the whole instrument (so far as the words used permit) will be construed in accordance with that dominant purpose.</p> <p>4. Where the residuary clause blends the real and personal estate into one mass, the legacies are a charge not only on the personal but also upon ¿he real estate. ,</p>

The bill in this case is filed by Dan Bishop, the holder of a promissory note made by the defendant, Anna Estelle Bourgeois, the wife of one Anderson Bourgeois. The following is a copy of the note: “$1,000.

<p>1. Where a separation has been occasioned by cruelty of the husband to the wife to an extent sufficient to support a decree for divorce against him, he cannot successfully claim that her absence from him for over two years thereafter is a statutory desertion.</p> <p>2. The rights of the parties in such a case are not altered by invitations sent by the husband to the wife asking her to return.</p> <p>3. Irrespective of suck a defence, it is the duty of a husband whose wife has separated from him, to show that he has been during the two years, sincerely willing and desirous that she should return to him, else her absence is not obstinate.</p>

<p>An injunction-will lie to restrain a meadow company from overflowing banked meadow lands within its bounds, lying adjacent to a tidal stream, where the company proposes to determine the question of such overflow at a special meeting in May called for the purpose, instead of at an annual meeting in April, as required by Gen. Stat. p. 2035 ¶ 59 and Gen.- Stat. p.- 2028 ¶ 29, providing that such questions must be passed upon at such annual meeting, before crops are planted.</p>

On bill of interpleader. Answers and testimony. General Donnelly, the complainant, is the owner of a house' and lot at Spring Lake, N. J. The house was built by the defendant Johnes, under a contract dated the 1st day of October, 1896, and filed in Monmouth county clerk’s office. By the terms of the filed agreement, the contract price was to be paid in six installments at different periods in the progress of the work.

On petition of receiver for an order to sell clear of encumbrances, and petition, of prior encumbrancer for leave to foreclose, &c., proofs, &c. The defendant company has been decreed to be insolvent, a receiver has been appointed, who has qualified and entered upon the performance of his duties.

On bill for interpleader, answers and proofs. The complainant is the owner of the post-office building at Atlantic City.

On bill, &o., and exceptions to master’s report. This matter is presented on exceptions taken to the report of a magter, under a decree and order of reference made June 26th, 1894. Nathan Elden, the testator, for whose estate the accounting is offered, made his will, dated August 16th, 1873. The will was expressed in terms which were, quite doubtful and named no executor. The testator departed this life on September 10th, 1875.

On bill, answer and proofs. The bill in this case is filed to restrain the Hydraulic Dredging and Improvement Company, one of the defendants, from prosecuting a suit at law against the complainant and to compel both the defendants to interplead and settle their respective-rights to compensation for work done by filling in the United States government lands on League Island, in the Delaware river.

<p>On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in Trenton Potteries Co. v. Oliphant, 11 Dick. Ch. Rep. 680.</p>

<p>1. The object of the act of April 21st, 1896 (P. L. of 1896p. 319), is to supplement the act of April 18th, 1884 (Gen. Stat. p. 3335), and that object is sufficiently and properly expressed in its title, notwithstanding that title erroneously recites that the last-named act was approved April 18th, 1894.</p> <p>2. A corporation which has defaulted in the payment of state taxes and has been proclaimed by the governor under the provisions of said act of April 21st, 1896, is within the provisions for winding up corporations, contained in sections 53 to 60 of the Corporation act of 1896. P. L. of 1896 p. 277.</p> <p>3. Upon application by a creditor or a stockholder of such a corporation under section 56 of the Corporation act of 1896, the discretionary power of the chancellor is invoked and should be exercised either to continue the directors as trustees to settle the corporate affairs under said sections or to appoint a receiver for that purpose ; discretion to appoint a receiver should not be disclaimed because of failure of proof of breaches of trust by the directoi’s since the governor’s proclamation, but should be exercised upon proof of such breaches of trust, or of previous breaches of trust or misconduct or incapacity evincing the unfitness of the directors to properly discharge the duties of such trust.</p> <p>4. Whether the provisions of section 66 of the Corporation act are applicable to defaulted and proclaimed corporations during the period within which they may apply for a revival of their corporate life and powers under the provisions of the supplement to the act of April 21st, 1896, which was approved March 25th, 1898 (P. L. of 1898 p. 182), queere.</p>

<p>1. On an application, under the act of March 22d, 1895 (Gen. Stat. p. 2717), ■to regulate the mode of crossing a steam railroad by a street railway, author-' ity being given to the chancellor under specified conditions to direct the mode of crossing, the petitioner must show by due proof that his application is-within the terms of the statute.</p> <p>2. The petition, verified by affidavit and served under Chancery rule 138, is not sufficient proof to establish jurisdictional facts, as to which the oath of theaffiant is not competent evidence.</p>

<p>1. Thornton W. Fay held the legal title to land in trust for the complain•'ants, and then mortgaged the land for his own benefit to one who had no -.•notice of the trust. — Reid, that on a bill to foreclose the mortgage, to which Fay was a party, but the eestuis que trust were not, the decree did not bar the latter, nor did a sale under the decree made to purchasers who had notice of the trust.</p> <p>2. Besides the circumstances above mentioned, Fay owned a share of the ■ land in his own right, and the price paid for his share by the purchasers at the foreclosure sale was more than sufficient to satisfy the mortgage —Semble, ■ that as against the purchasers the estate of the eestuis que trust was discharged from the mortgage.</p>

<p>A bill was filed by the complainant praying that the defendant company be . declared insolvent, and that a receiver be appointed. After the receiver was appointed the defendant filed a petition, setting up new facts and praying that -the appointment of receiver be vacated. — Held, that it was not necessary to file a bill in the nature of a bill of review to obtain the relief asked for in the petition. A bill of review is necessary after final decree only.</p>

<p>In a suit brought in the court of chancery by a married woman against her husband, to compel the payment of alimony which had been awarded to her by the court of a sister state on a decree of divorce a mensa et thoro, the wife ■ may sue alone, without a prochein ami.</p>

<p>On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in Burlington v. Pennsylvania Railroad Co., 11 Dick. Ch. Rep. 259.</p>

<p>A sheriff having duly advertised a sale of real estate under execution, struck off the property to the highest bidder at the time and place so advertised. Then the purchaser, the parties concerned in the execution and the sheriff went away and the persons assembled at the sale dispersed. About an hour afterwards, the purchaser having refused to comply with the conditions of sale, the sheriff, under instructions from the complainant’s solicitor, returned to the place of sale and, shortly before the expiration of the advertised.hours of sale, publicly announced that the sale was adjourned for two weeks. — Heldt that a legal adjournment was not thereby effected.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Nash v. Hall, 39 Atl. Rep. 374.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Woodbury Heights Land Co. v. Loudenslager, 10 Dick. Ch. Rep. 78.</p>

<p>Duty of executrix in case stated defined.</p>

I have had occasion to examine the question involved, in the recent case of Felt v. Felt, 12 Dick. Ch. Rep. 101, now before the court of errors and appeals, and have had occasion to think of it. The object of this supplemental bill is to obtain a decree of the court declaring’void a decree of absolute divorce obtained by the defendant against his wife in one of the courts of the State of North Dakota after the filing of the original bill in this cause.

The bill was filed on the 17th of August, 1896, and some time after' that a petition was filed for alimony pendente lite, which was finally brought to a hearing and heard on the 2d day of November, 1896, with the result that the chancellor ordered the defendant to pay the complainant alimony at the rate of $12.50 per week. The parties have only one child, a son, now about nineteen years old.

<p>On appeal from an order of the chancellor, whose opinion is reported in Fort Wayne Electric Corporation v. Franklin Electric Light Co., 12 Dick. Ch. Rep. 7.</p>

<p>On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in Hallenback v. Rogers, 12 Dick. Ch. Rep. 199.</p>

<p>On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in Delaware, Lackawanna and Western Railroad Co. v. Breckenridge, 12 Dick. Ch. Rep. 164.</p>

<p>On appeal from a decree of the ordinary, whose opinion is reported in Salter v. Fly, 11 Dick. Ch. Rep. 357.</p>

<p>On appeal from an order advised by Vice-Chancellor Stevens, whose opinion is reported in New Jersey State Dental Society v. Dentacure Co., 12 Dick. Ch. Rep. 593.</p>

<p>On appeal from an order of the chancellor, whose opinion is reported in Bishop v. Waldron, 11 Dick. Ch. Rep. 484.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Franklin Trust Co. v. Rutherford Boiling Springs and Carlstadt Electric Co., 12 Dick. Ch. Rep. 42.</p>

<p>On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in Lyon v. Clawson, 11 Dick. Ch. Rep. 642.</p>