Volume 60 — New Jersey Equity Reports

On the several demurrers of the defendants. The object of the bill is to enforce, by specific performance, a contract entered into by the four municipalities, complainants and defendants, and, among other things, for the conveyance of certain lands, and, incidentally, to have set aside a conveyance by, the township of Bergen to the defendant Zimmerman for a portion of those lands.

<p>1. Act of April 4th, 1872 (P. L. of 1872 p. 1203), empowers the board of ■trustees of the village of South Orange to raise money for internal expenses,-but reserves to the township officers the duty of 'assessing and collecting the same. Act of March 30th, 1875 (F. L. of 1875 p. 395)', provides that a village tax collector shall perform the duties theretofore incumbent upon the township collector. Act of March 14th, 1879 (F. L, of 1879 p. 340 % 1), provides that all taxes shall be a lien for two years after they become due. Section 18 of such act provides that it “shall not be construed to * * * repeal the provision of any charter of any city, village or borough whereby the collection of taxes is regulated, * * * and the lien of taxes on lands in any such city shall remain as now regulated, * * * this act being intended to apply to townships * * * and not other municipalities.” Act of March 10th, 1880 (P. L. of 1880 p. 11/9), provides that taxes shall be a lien, in cities and villages, as provided by their charters. Act of March 17th, 1882 (P. L. of 1882 p. ISO), extends the lien provided for in the act of 1879 to three years. — Held, that section 18 of the act of 1879 did not have the effect to exclude the village of South Orange from its terms, and taxes are a lien on land therein for three years after they become due.</p> <p>2. Act of February 22d, 1888 (P. L. of 1888 p. 97), providing that taxes levied on real estate in villages and municipal corporations governed by a board of trustees shall be a lien on the land until paid, does not apply to taxes levied before the act took effect,</p> <p>3. Act of February 22d, 1S88 (P. L. of 1888 p. 97), providing that in villages and other municipal corporations governed by a board of trustees, taxes shall be a lien on real estate until paid, is in violation of the Constitution, article 4, section 7, paragraph 11, as amended, providing that the legislature shall not pass private, local or special laws regulating the internal affairs of towns and counties.</p>

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

<p>Petitioner was a domiciled resident of the State of New York; was married there, and abandoned by her husband a few days after the marriage under aggravating circumstances. She consulted New York counsel and was by him advised that she had no remedy in New York, but must come to New Jersey. She came to New Jersey, took up her abode with a friend, paying a little board, but spending much of her time with her parents in New York. At the end of two years she filed a petition for divorce on the ground of desertion. The defendant was not served within the state, and did not appear to the suit. She testified that she came to New Jersey for the purpose of obtaining a divorce, but that she intended to make it her permanent home. — Held, that the proof did not establish such a residence in this state as is necessary to give the court jurisdiction.</p>

<p>A married woman, living apart from her husband in another state, came to New Jersey, visited a friend for a few weeks, then returned to her former residence and visited there several weeks, after which she returned to New Jersey and took lodging in a boarding-house several months, and then ran a boarding-house of her own for a year. She then sold her boarding place and broke up housekeeping, and shortly afterwards filed her petition in New Jersey for divorce, and then spent the summer in the state of her former residence. Defendant was served with process as a non-resident. She testified that she came to the state without thought of getting a divorce, and with intention of making it her home. — Held, that the animus manendi necessary to give the court jurisdiction was not established, since the mere sworn statement was not sufficient to establish an animus manendi, in the absence of facts preceding and attending the change of residence to corroborate it.</p>

<p>1. Where one living in New York City was deserted by his wife, and tried to induce her at various times to live with him, but was refused, and about a year after the desertion he moved to New Jersey, but carried on business in New York City, and about three years later tried again to induce his wife to live with him, but was again refused, and a few months later brought suit for divorce, petitioner’s residence in New Jersey for more than two years was sufficient to give the court jurisdiction, where defendant was served within the jurisdiction, and she voluntarily appeared in the suit.</p> <p>2. Where a husband petitioned for a divorce for desertion, the matrimonial offence having been persisted in against his will for more than four years, the fact that the wife, who lived in New York, was desirous that the divorce be granted, and voluntarily appeared in court, but made no defence, will not amount to collusion, and prevent the granting of a decree.</p>

Heard on petition for surplus money, and on motion .to vary an order of reference made thereon; and on a cross motion to vary the master’s report of priorities and the decree confirming the same.

<p>1. Where a bill rendered by an attorney for prosecuting a suit for his client is not only fraudulently untrue as to items for services not rendered, but inflated throughout by charges beyond what the services were worth, and, with the retainer paid by his client, amounts to more than the sum recovered of defendant, it is within the rule that if the behavior of the attorney towards his client is dishonest, oppressive or illegal, and shows a fraudulent intent, the court may proceed summarily against him for his misconduct.</p> <p>2. A failure by a client to object to his attorney’s bill for services until nine months after rendered is not unreasonable, where other attorneys employed by the client had been trying to see the attorney and secure a satisfactory explanation, and where the attorney could not have changed his position to his injury.</p>

<p>Gen. Stat. fi. 2073 § 38 provides that whenever any contractor shall, upon demand, refuse to pay any materialman the money due him, it shall be the duty of such materialman to give notice to the owner of the building of the amount due him, and that the owner shall thereupon be authorized to detain the amount due out of the amount owing to the contractor. Gen. Stat. p. 207J¡ § ¡¡1 provides that if the owner of a building shall, in advance of the terms of a building contract, pay any money on the contract, and the amount still due to the contractor, after such payment, shall be insufficient to'satisfy the notices served in conformity with section 38, such owner shall be liable as if no such payment had been made. — Held, that where a dispute arose between the owner of a building and one who had contracted to make repairs, and there was a submission to arbitration of matters in difference between them, concerning the materials used, &c., the liability of the owner to make the last payment did not mature until the award of arbitration was made, and claims of materialmen, of which notice was given to the owner of the building pending the arbitration proceedings had preference over a prior draft drawn by the contractor on the owner in favor of the plaintiff, whose claim against the contractor had no connection with the building.</p>

Motion to strike out plea to a bill for partition. The complainant is the owner of an equal undivided one-fifth part of certain real estate in Hoboken, consisting of certain houses and lots. The defendant James H. Dewey is entitled to an equal undivided one-fifth part, the defendant Richard W. Dewey is entitled to two equal undivided one-fifth parts, and the defendant Mrs. Potter is entitled to an equal undivided one-fifth part.

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

Heard on petition and answer of William Y. Mulford, receiver,' and evidence produced in open court. Mr. Doremus is the receiver appointed by this court in insolvent proceedings of the International Baking Company!

This matter comes before the court on divers appeals from the rulings of the receiver refusing the demand of several creditors of the insolvent defendant bank to have their claims paid in full in preference to the general creditors. At the same time application is made to the court by several creditors, who have heretofore proved their claims as such and been admitted, to amend their claims so as to ask for a preferential payment.

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

The case comes before the court on motion to overrule a plea. The bill is filed by a trustee in bankruptcy against John Cashion and Edwin E. Smith, the latter alleged to be a transferee of Cashion’s property.

<p>Where, in a suit to construe a will, it was decreed that the will passed a vested estate to the children of the testator, subject to be devested, in favor of grandchildren, as to any of the real estate not actually sold 'and conveyed prior to the-death of the first taker, such decree was res judicata as against judgment creditors of one of the children; and hence such creditors were not entitled to their judgment debtor’s share of the proceeds of land belonging to the estate sold after his death, though they were not parties to the suit to construe the will.</p>

<p>On final hearing on ¡Readings and proofs.</p>

<p>A church agreed with certain persons, desirous of organizing a cemetery association and laying out a cemetery on land of the church, to convey the land, with the reservation of the right to reserve one-half acre, to be chosen by it, “for the purposes of a church building;” and pursuant thereto it conveyed the land to T. and V., two of the persons, who at the same time executed a declaration of trust, declaring that they held the land in trust for the actual purchasers (naming them), and, as to one-half acre, to reconvey it to the church trustees, when it should be located by them, “for a church site.” Thereafter the trustees located the one-half acre by resolution reciting that they had been requested to locate the site to be reserved for the purpose of a church according to the condition imposed by the resolution of the congregation authorizing the sale. Subsequently T. and V. deeded the land, except the one-half acre, to the cemetery association; the deed reciting, “the remaining half acre * * * having been reconveyed to the * * * church pursuant to the contract; they having located and designated the half acre, agreeable to the condition of the original sale, as that part of said premises which they have, since the conveyance made by them, resolved to reserve for church purposes.” At the same time T. and V. conveyed the one-half acre to the church, the deed reciting that it had been “reserved as a site for a church,” and was reconveyed “for that purpose,” and that “the party of the second part hereby consent and agree that the said premises shall be used and occupied for a church.” — Held, that such restriction inured to the benefit of the cemetery association, as owner of the adjoining land, in the absence of evidence that T. and V. were owners of any such land; that T. and V. had no right to release the church from such restriction; and that, they having given a release, the church would be enjoined from selling the land for any other purpose — the declaration of trust and books of the church not being matters of public record, so as to give notice to a purchaser that the restriction inured to the benefit of the association.</p>

<p>Agreement under seal of a debtor that when he shall effect a sale of bis house the proceeds shall be immediately devoted to payment of a certain indebtedness, does not create a lien on the land.</p>

<p>On information and supplemental information.</p>

Heard on bill, amended bill, answers, replication and proofs.. This bill is filed against the devisees of the vendor for specific performance of a written contract of sale, by which, as is claimed, the testator gave complainant an option to purchase lands leased to them by the testator.

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

On application for preliminary injunction heard on bill and affidavits and answering affidavits. Complainant and one Edward E. Randolph, who died in December, 1898, had from 1886 carried on as partners a manufacturing business in Waterbury, Connecticut.

<p>1. Parol declarations made by lessors’ agent at the time of the execution of a guaranty for the payment of rent, to the effect that the lease would be altered by inserting a clause providing for the abatement of the rent specified in the lease and guaranty, is inadmissible in an action to reform the lease on the ground of mistake.</p> <p>2. Where an oral promise was made that a guaranty for the payment of rent should not be delivered until the lessors consented to the insertion of a clause in the lease for the reduction of rent, and it was delivered with nothing to indicate the existence of such condition, the guarantor was bound upon the facts shown in this case. — Held, that the evidence was insufficient to warrant a reformation of the lease on the ground of mistake.</p>

<p>On bill filed for tlie construction of the will of Jonathan Fisk, deceased.</p>

<p>A testator gave a life estate in liis real estate to his wife, remainder in fee-simple to his son, with a limitation over in case the son should die before his mother, or under the age of twenty-one years, or without lawful issue. — Held, that the word “or” in the will should be read as meaning “and,” and, the son having attained the age of twenty-one years, the limitation over is defeated, and he has a vested remainder. In such case a deed of the property by the mother and son together conveys title in fee-simple, and complies with an agreement to convey such a title.</p>

<p>On a bill for construction of a will.</p>

<p>1. Where a mortgage, executed by an insolvent corporation to secure creditors, failed to convey a fee in the real estate, as intended, because of omission of words of inheritance by error of the draftsman, equity will reform the same, as ag'ainst a receiver appointed for such corporation after its execution, since the receiver took only the title of the corporation of its property at the time of his appointment, subject to all equitable liens.</p> <p>2. Equity will not refuse to reform a trust mortgage executed to secure creditors of an insolvent corporation because voluntary, since such a mortgage is not purely voluntary, in the sense of being a gift.</p>

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

.This is a suit to enforce a lien under the act of March 30th, 1892 (Gen. Stat. ¶. £078), to secure the payment of laborers, mechanics, merchants or traders and persons employed upon or furnishing materials towards the performing of any work in. public improvements in cities, towns, townships and other municipalities in this state.

<p>On pleadings and proofs.</p>

<p>A borough which was set off from a township is not liable for the previously-contracted debts of such township, under P. L. gf 1896 p. $70, providing a mode of equitable apportionment of the indebtedness and assets on the setting off of such township.</p>

<p>Where a corporation, authorized to buy and sell stocks, by its board of directors, empowered a committee thereof to give an option for certain stocks in their discretion, subject to ratification by the stockholders, such sale could not become binding on the corporation until ratified by the stockholders. The ratification clause never having been waived, the sale to the complainant was not binding upon the corporation, and specific performance of the agreement to sell to him was denied.</p>

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

<p>A party in possession of lands under an unrecorded deed, who asserts constructive notice against one claiming under the recorded title, must prove such open, visible and exclusive possession and use of the premises, as an owner would be expected to exercise towards property in the situation and of the character of that in question; and such possession and use must be inconsistent with the record title, under which the party to be noticed claims his interest in the premises.</p>

On bill and affidavits. Application for a preliminary injunction. » The two bills of complaint in these causes pray for in june- • tions restraining the defendant company from constructing its electric railway or trolley road along and in Warren street in the township .of Beverly, in the county of Burlington, over the lands in which the complainant, who is an abutting owner, has a fee-simple estate.

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

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

<p>1. Directors of a corporation which is fully organized and in the active conduct of its business, are bound to afford to existing stockholders an opportunity to subscribe for any new issue of shares of its capital stock, in proportion to their holdings, before disposing of such new shares in any other way.</p> <p>2. Where it appears that directors disregard the above rule, and for the purpose of securing themselves in office and in control of the corporation, issue stock to their friends for but a small proportion of its par value, and in breach of the by-laws of the company, their conduct is a fraud upon the existing stockholders, and the company will, at their instance, be restrained from receiving votes at its meetings upon such fraudulently-issued stock, and the defendant holders from voting thereon.</p>

On bill, &c., and motion to strike out both, a defence in an answer and a cross-bill. The complainant is one of the sons of Michael and Caroline Haberman.

<p>Gen. Stat. p. SJ/87 § 6 declares that on a bill to quiet title the court shall fix and settle the rights of the parties in the lands in dispute. — Held, that where, on a bill to quiet title, a feigned issue was awarded to try the question of the legal title to the lands, and after judgment in favor of defendants, both complainant and defendants conveyed all their interest in the lands in dispute to a stranger to the suit, the bill should be dismissed, since neither party had any rights in the lands to be bound by any decree. Under such a state of facts each party should pay his own costs.</p>

On. bill, answer and proofs. Tbe complainant in this bill is tbe widow of John Russell, deceased, late of Cumberland county, Tew Jersey, to whom she was married on the 13th day of Tovember, 1892, and who died on the 20th day of July, 1897, testate, leaving him surviving the complainant, his widow, who had borne him no children, and leaving as his next of kin his three minor grandchildren, issue of his first wife. He also left three nephews.

On cross-bill and answer thereto, and proofs. This canse came on for hearing on the cross-bill filed by Charles J. Costello, administrator, &c., of Hannah McEadden. The original bill in this canse was filed to foreclose a mortgage for $1,000 made by Mary Carr and others to Hannah McEadden, in her lifetime, upon property in Atlantic City.

<p>1. Under rule 213 a defendant must move to strike out a bill while the pleadings are in that condition in which he could demur to it.</p> <p>2. .A .bill alleged that complainant owed defendant a certain sum; that complainant had been notified that by an agreement between defendant and a third person the latter was entitled to one-half that sum; that such person had warned complainant not to pay that half to anyone but himself, and that complainant did not know to whom it belonged, and asked that defendant and such third person might interplead, and be enjoined from further prosecuting a suit at law until decree. Defendant denies that there was any such agreement, and insists that she alone is entitled to the fund. — Held, that a motion to dissolve the preliminar-y injunction restraining the suit at law, on the ground that the answer denies every fact on which complainant’s equity depends, will not be granted, since the answer simply denies the existence of the agreement, and is not responsive to complainant’s bill.</p> <p>3. Under the Chancery act providing that complainant may pray that defendant answer without oath, &c., the rule that a preliminary injunction will be dissolved when a responsive answer, under oath, by a defendant having knowledge of the transactions, denies the facts on which the equity of the bill depends, is unaffected by the fact that complainant, in his bill, waives an answer under oath.</p> <p>4. Where a person claims a fund because of an admitted contract with the holder of the fund, and another person claims a portion of such fund because of an agreement with the admitted contractor, the holder of the fund may file a bill for interpleader, and it is not necessary, to entitle the holder to file such bill, that the claimants each assert a right arising out of some alleged contract with such holder.</p>

On bill to foreclose. Answer and proofs. The complainant is the administrator cum testamento annexo of John Stimis, deceased, and the defendants are the children and devisees of his son Henry Stimis, also deceased, who, in 1851, made to the father the mortgage herein sought to be foreclosed. The mortgage covered lands in Essex county, and was, in the year of its date, duly recorded in that county. John Stimis, the mortgagee, died in 1851, testate.

On bill for divorce a mensa ei thoro, &e. Answer and proofs. The marriage of the parties took place in 1880, at New Brunswick, in this state, where they have ever since resided. The bill is framed upon allegations that the defendant husband has always shown towards the complainant a miserly disposition, prohibiting her from all social enjoyment and even from necessary household expenditure, treating her with continuing violence and cruelty.

The following is the agreed statement of the facts presented to the orphans court, upon which its decree was made, and upon which this appeal is based, no written evidence being taken down in the orphans court: 1. John E. Case died intestate in Hunterdon county in 1863, and John L. Bush and Peter H. Baker were appointed his administrators. 2. As such administrators they received $283.73 to invest for his widow during her life and after her death to be paid to his heirs. 3.

<p>The iacts do not prove that the testatrix was unduly influenced in masing her will.</p>

These are two appeals from orders of the Cumberland county orphans court; one, allowing David Flemming and Reginald L. Hart to file a claim against the estate of Daniel Elmer,-and the other allowing Henry Levis to file a claim against the same estate. On July 23d, 1897, Daniel Elmer made a deed of assignment to William A. Logue for the benefit of his creditors.

<p>On appeal from an order made by the Burlington county orphans court.</p>

On a petition for citations to all persons interested in the probate of the will of Thomas W. Bracher, and for a citation to Franklin M. Olds to produce such will and leave the same with the registrar of this court.

The complainants are three of the' children of the late Peter Bentley (second of that name), of Jersey City, and the defendants are the widow and four infant children of Mr. Bentley. The infant defendants are in the same interest as the complainants. The widow is the sole executrix of the will of Mr. Bentley, and also by its provisions entitled to the use of his whole estate during her widowhood.

<p>1. The legislature of this state has constitutional power to confer on municipalities the right to use the tidal streams within our borders as outlets for public sewers carrying oil: surplus water and the sewage from buildings.</p> <p>2. The charter of the city of Newark grants to the municipal authorities of the city the right to use the Passaic river as such an outlet.</p> <p>3. The fact that such a use of the Passaic river pollutes the water and air in the neighborhood of a dock on the river owned by private persons, and thus lessens the value of the private property, will not justify an injunction to restrain the city from constructing and operating a sewer, which the municipal authorities have, within the limits of their legal discretion, determined to be necessary for sewerage purposes.</p> <p>1. The title to a tidal stream below ordinary high tide is in the state as absolute owner. A riparian owner has no property in the land under tidal waters by reason of his adjacency thereto. The inchoate right of the owner of the upland to acquire an exclusive right to the property by wharfing out or otherwise improving gives him no property in the land while it remains under water. Per Depue, J.</p> <p>2. But by the local common law of this state a riparian owner may erect a wharf, dock or other improvement into a tidal stream, and by such improvement will acquire a property, and his title to such portion thus reclaimed becomes vested and indefeasible, except so far as it, in common with all other property, is subject to the state’s eminent domain. Per Depue, J.</p> <p>3. The title of the riparian owner which was under discussion in Stevens v. Newark and Paterson Railroad Co., 5 Vr. 532, was that of a, riparian owner who had neither wharfed out nor otherwise improved his connection with the tidal stream, and consequently had no property rights to be affected by the execution of the public grant then in question. Hence, it was held by the court that the public domain was subject altogether to the control of the legislature, and that incidental damages resulting to individuals from the exercise of such control gave no legal claim to compensation. In Beseman v. Pennsylvania Railroad Co., 21 Vr. 235, which was a suit by an owner of property adjacent to the track of a railroad, alleging injury from the use of the company’s track for the passage of its locomotives and cars in the transportation of cattle, &c., so as to render his dwelling-house unfit for habitation, &c., the charter of the railroad company being pleaded, it was held that the franchises granted to the company legalized the running of trains and the transportation of freight, and the acts complained of being themselves lawful, those incidental injuries which necessarily and unavoidably resulted from the exercise of legislative authority, if prosecuted in all respects with care and skill, were damnum absque injuria. Per Depue, J.</p> <p>4. The charter of the city of Newark conferred on the city the right to use the Passaic river as an outlet for its sewers. On a bill filed by the owner of land on the Passaic, which had been improved by the erection of a wharf and dock used for receiving and shipping materials in the conduct of his business — Held, (1) that the use of the Passaic river by the city as an outlet for its sewers being lawful, such incidental injuries as necessarily and unavoidably result from the exercise of such legislative authority are damnum absque injuria, but that the city is liable in damages for an injury resulting to such riparian owner caused by negligence in the construction and management of its sewers; (2) that for the purpose of determining what acts of a city in the construction and use of its sewers into tidal waters by legislative authority are or are not actionable, the distinction is between the duties of a municipality which are of a quasi judicial nature, involving the exercise of judgment and discretion, and ministerial duties, such as the construction and repair of sewers; with respect to the former no action is maintainable, and an action is given only for negligence in performing such duties as are ministerial. Per Depue, J.</p>

<p>1. The city of Paterson had legislative authority to construct its system of sewers, discharging their contents into the Passaic river, and is not, therefore, subject to the charge of maintaining a public nuisance.</p> <p>2. The title of riparian owners along Passaic river, where the tide ebbs and flows, extends only to high-water mark, the state is the absolute owner of the bed of the stream. Such riparian owners having no title to the bed of the stream are not entitled to an injunction against the city on account of the pollution of the stream.</p> <p>3. The title of riparian owners above the ebb and flow of tide extends to the middle of the stream, subject only to a servitude to the public for purposes of navigation. The pollution of the river by sewage constituted the taking of the property of such owners, which the legislature cannot authorize except upon just compensation,</p> <p>4. Jersey City has no rights in the waters of the Passaic river distinct from the rights of the general public, either by reason of the location of its water works or in virtue of the act of 1852. P. L. of 1858 p. 419.</p> <p>5. By reason of the great injury which would fall upon the city by restraining the continuous use of its sewerage system, and the acquiescence of these riparian owners above where the tide flows, their injury being comparatively small, it would be inequitable to grant them an injunction.</p> <p>6. They may obtain redress by amending their bill, or by filing a new bill praying for an injunction, unless the city of Paterson will consent to make such compensation to them as shall be-ascertained to be just; or tLey may, if they elect, sue at law for their damages.</p>

<p>1. Contracts to pay differences on the rise and fall of the price of cotton in the New York Cotton Exchange, are wagering contracts, although they are made in the form of purchases and sales of cotton for future delivery.</p> <p>2. A New Jersey court of equity will not aid judgment creditors to enforce a judgment for debts growing out of wagering contracts, although the contracts were made in another state, where they were legal, and although the defendants in the bill were non-residents of. New Jersey and have not in their answer set up the character of the contracts as a defence.</p>

<p>1. When a riparian proprietor seeks the aid of a court of equity to restrain the diversion of water b37 a municipal corporation for public purposes, and offers to forego his right to an injunction on receiving just compensation, which he asks the court to determine, and the defendant in its answer consents to pay such compensation so to be determined by the court, in case the court considers the complainant entitled to an injunction, the court has jurisdiction to ascertain the amount of such compensation.</p> <p>2. A municipality which buys a piece of land on a private stream several miles distant from its corporate limits, does not thereby become entitled as riparian owner to draw from the stream a supply of water for the inhabitants of the town.</p> <p>3. The town of Newton has no authority to divert water from private streams, to the detriment of lower riparian owners, on condition that it will store storm water and give it out into the streams in dry times, and thus confer a compensatory benefit on those owners, they not consenting thereto.</p> <p>4. In ascertaining just compensation for the diversion of water from a mill, the difference between the market value of the mill before the diversion and its market value afterwards, is usually a simpler and safer criterion than estimates of the probable cost of producing by steam at the mill the power which the diverted water would supply, and than estimates of the probable value of the water power at the mill, based on the rental value of power at other places more or less distant and dissimilar.</p>

On-appeal from an order advised by Vice-Chancellor Reed, who filed the following memorandum: This petition cannot be regarded as one to set off a judgment to be obtained against the complainant against the subsisting decree standing against the complainant in favor of the complainant. To a judgment or decree there can be no s.et-off of a debt not in judgment or decree. Waterm.

<p>On appeal from an order advised by Vice-Chancellor Grey, whose opinion is reported in 14. Dick. Ch. Rep. 149.</p>

<p>On appeal from an order advised by Vice-Chancellor Reed, vahóse opinion is reported in 43 Atl. Rep. 570.</p>

On appeals from decrees advised by Vice-Chancellor Reed, who delivered the following conclusions: These cases involve the same question. The first is a suit by the complainant, as heir of Annie Burns, to set aside certain conveyances made by Annie Burns to the defendant; and the second is a suit by the complainant, as administrator of Annie Burns, to set aside an assignment of a mortgage made by Annie Burns to the same defendant.

87 and $1,106.59 respectively. On December 13th, 1897, one Tunis got a judgment against the company for $2,035. It is the sale under the execution issued upon these judgments that the bill seeks to restrain. In May, 1893, there existed a mortgage of $7,500 upon the property of the company, which mortgage Was held by one Hughes. The company had other debts amounting to $6,000.

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 13 Dick. Ch. Rep. 15.</p>

<p>On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in Kissam v. Morehouse, 13 Dick. Ch. Rep. 364.</p>

<p>On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in Field v. Thistle, 13 Dick. Ch. Rep. 339.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 14 Dick. Ch. Rep. 259.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 14 Dick. Ch. Rep. 284.</p>

<p>On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in 12 Dick. Ch. Rep. 528.</p>

<p>1. Whether an attorney has a lien upon a last will and testament of a client in his possession and may retain the same, and withhold it from a probate court until payment of a bill for professional services, quiere.</p> <p>2. When, after complete execution of a will a testator delivers it to his attorney, with express instruction to deposit it in testator’s safe, the possession of the will thus obtained is not the possession of an attorney, but of a mere agent or messenger, and is inconsistent with possession under a claim of lien.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported' in 13 Dick. Ch. .Rep.</p>

Ch. Rep. 126. This case was heard in the court of chancery before Frederic W. Stevens, vice-chancellor. A decree was made sustaining the mortgage, from which Chauncey M. Depew and the West Shore and Ontario Terminal Company appealed. The vice-chancellor allowed interest on the mortgage debt at the rate of six per cent. only. From this part of the decree the complainant appealed.

<p>1. Strictly speaking, a vendor’s lien on lands attaches only after conveyance of ’the premises by the vendor to the vendee, although a lien may attach, as a trust, equally, whether it be actually convej'ed or only be contracted to be conveyed.</p> <p>2. In the latter case the vendor must do or offer to do what his contract of sale requires him to do before he can invoke equitable interference.</p>

<p>On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 14 Dick. Ch. Rep. 402.</p>

<p>1. A testator, after ordering debts paid and .bequeathing his household furniture, gave the income of his estate to his wife during widowhood, and in case of her remarriage, devoted such income above her dower right to the maintenance and education of his children, who were also made his residuary beneficiaries. He appointed executors and then provided as follows, viz.: “My real estate, wherever found, I give to my executor and executrix in trust for my estate, giving them full power and authority to dispose of the same at any time, if deemed for the benefit of my estate.”- — ■ Held, that the will gave no power to the executors to mortgage the lands of the testator.</p> <p>2. Otherwise the rulings of the court of chancery in 1¡1¡. Atl. Rep. 938, are approved.</p>

Mary Ann Wyckoff,. the complainant, was the sister of John Horton, deceased. Their father had left them each a one-half interest in a certain farm, and the complainant, with her husband, had conveyed her one-half interest to her brother John for $6,000, for part of which sum she had taken from John a mortgage, dated May 6th, 1882, for $4,000. John Horton died unmarried on December 13th, 1896.

<p>On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in 13 Dick. Ch. Rep. 298.</p>

<p>On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in Shipman v. Lord, 13 Dick. Ch. Rep. 380.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 12 Dick. Ch. Rep. 496.</p>

<p>On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 14. Dick. Ch. Rep. 100.</p>

A creditor of the husband, claiming that the husband paid the premiums on said policy in fraud of his creditors, seeks to enjoin the payment by the bank of the money to the wife. Defendant insists that payment should not be restrained; or, if restrained, the restraint should only cover an amount equal to the premiums paid by the husband and not the amount realized upon the policy.

Collins, was married to Walter S. Collins. She was then possessed of property consisting of bonds and other securities held for her by her mother, Mrs. Gaston. On March 7th, 1884, Mrs. Gaston handed to Walter S. Collins securities to the amount of $16,600 and took from him an acknowledgment that he received them for his wife.

I have had an opportunity to think of it while the counsel were proceeding with the argument, and I will therefore dispose of it at once. The bill is filed by Mr. Walker as the owner of several lots — ■ over one hundred lots — on the Palisades, overlooking the Hudson river, comprising a suburb called El Dorado. The property was bought by Mr. Walker at master’s sale, and either then or afterwards he procured it to be laid out in lots.

The Trenton Street Railway Company is a corporation composed of several original companies. The first is the Trenton Horse Railway Company, incorporated by special charter in 1859. P. L. of 1859 p. 266. The next is the City Railway Company, formed under articles of incorporation filed December 9th, 1875, under the general railroad law. The next is the Hamilton Township Street Railway Company, formed under articles filed September 12th, 1890, under the act of April 6th, 1886.

In the year 1835, Andre1 Ten Eyck, being the owner of an unimproved lot of land in Somerville, having a frontage of sixty feet on the New Jersey turnpike, conveyed the westerly half of it to one Todd.

<p>On appeal from a decree of the chancellor, whose opinion is reported in Crews v. United States Car Co., 12 Dick. Ch. Rep. 357.</p>

<p>On appeal from an order advised by Vice-Chancellor Grey, striking out parts of an answer to a bill for partition, in which no opinion or reasons were filed.</p>