Volume 63 — New Jersey Equity Reports

<p>Argued at October Term, 1901, and finally submitted on amended bill at February Term, 1902.</p>

<p>1. A lotowner is not justified in erecting a barrier of close boards on his lot in front of the windows of his neighbor’s adjoining' house, in such manner as to obstruct the influx of light and air to those windows, for the purpose of preventing the throwing of refuse from those windows onto his lot, where a barrier which would not so obstruct the light and air would be equally effective for the desired purpose.</p> <p>2. The fact that a lotowner permitted persons of bad character, whose behavior was a nuisance, to occupy a part of the house on a lot, does not justify the erection of a barrier by the adjoining lotowner, the effect of which is to obstruct the influx of light and air: to the house, where the objectionable tenants were ejected as soon as notice of their conduct was given to the landlord.</p> <p>3. Defendant owned three adjoining lots, and erected a house on the middle one, fronting on the street and covering the whole width of the lot. On the east side of the house was an inset, in which windows were built. There were no other windows on that side of the house. The house on the east lot was built forty-five feet back from the street; the intervening space being a lawn, and a paved alleyway between it and the line of the middle lot.—Seld, that, in a grant of the middle lot,-the existence of the inset in the house thereon would not rebut the implication of a grant of the right of light and air over the lawn.</p> <p>4. The construction by defendant of a house so that a part of it could be lighted only by certain windows opening on a vacant lawn in front of defendant’s adjoining property, created an easement in the light and air from defendant’s lawn, which passed with the conveyance of the house.</p> <p>5. The fact that the conveyance expressly granted the right to use the alley on the west lot, does not exclude the implication of a grant of the right to the light and air over the east lot.</p> <p>6. The obstruction of the right to the influx of light and air by a private person will be restrained, notwithstanding compensation can be made in damages; such right being property of which the owner cannot be deprived by private persons for private use, even on just compensation made.</p>

<p>1. An affidavit filed by the attorney of a judgment creditor on filing the transcript of a judgment of the district court for over $200 in the common pleas court, which states that the whole amount of such judgment and costs remain due and unpaid, is equivalent to. stating that over $10 is due on the judgment, as required to be stated in such affidavit by Gen. Stat. p. 1228.</p> <p>2. The affidavit in such case failed to state that defendant was not possessed of goods and chattels sufficient to pay the judgment, as required by Gen. Stat. p. 1228, but an execution had been issued and returned nulla dona in the district court, and there was no contention or evidence in a suit to quiet title to real estate sold under an execution of the common pleas that defendant had sufficient personal property to satisfy the judgment. It was generally supposed by the bar at the time of the filing of the affidavit that Gen. Slat. p. 1228 had been repealed by Gen. Slat. p. 1260 § § Ih 5. There was nothing to show an intent to disregard the statute, or any injury to defendant.'—Held, that the defect in plaintiff’s title arising from the defect in the affidavit was insufficient as a defence to plaintiff’s action to quiet his title.</p> <p>3. The return of the district court execution nulla dona and the seizure of the lands under the common pleas execution is prima facie proof that defendant had no personal property subject to execution.</p> <p>4. Defendant was the owner of real estate, which was sold to a judgment creditor, under execution, for- a fair valuation, though the evidence as to the value was conflicting. Defendant was embarrassed financially, and disposed of several pieces of property to creditors' by execution sale and otherwise, and the judgment creditor who purchased the property in question released the entire judgment at the request of defendant at a time subsequent to the sale, though the property was sold for less than the face of the judgment. There was other evidence tending to show that the creditor was to take the property for the judgment. There was also evidence that defendant, after the sale, notified the tenants in possession of the property to pay the rent to the judgment creditor, and told plaintiff, who subsequently purchased the property of the judgment creditor, that the latter owned the property, and plaintiff should purchase from him; but such facts were denied by defendant. The iflaintiff erected valuable improvements, paid mortgages, taxes, &c., on the property for a number of years after acquiring the same, with the knowledge of the defendants.— Held, sufficient, in a suit by plaintiff to quiet title, to estop defendants from relying on a defect in the affidavit of the attorney of the judgment creditor, required by Gen. 8tat. p. 1228, in filing the transcript of the judgment, which was originally obtained in the district court, in the common pleas court.</p> <p>5. The request by defendant of the judgment creditor, after the execution sale, that the latter should release the balance due on the judgment, operated as an affirmance of the sale by defendant.</p> <p>6. The plaintiff, having acquired the property from the judgment creditor by a conveyance containing a covenant of warranty, was entitled to set up such affirmance as an estoppel, though it occurred after plaintiff acquired the property, as the right to set up the estoppel passed at once, under the covenants of the deed, to the plaintiff.</p> <p>7. The fact that defendant, through mistake of law, did not know that there was a defect in the affidavit, did not prevent defendant’s conduct from operating as an estoppel, as he had knowledge of the suit, and was bound to inquire whether the proceedings were according to law, if he intended to take advantage of any defect therein.</p>

<p>On final hearing on bill, answer and proofs taken before a master.</p>

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

<p>In a suit to compel defendant to remove telegraph and telephone wires strung in front of complainant’s premises without his consent, the uncontradicted testimony of plaintiffs solicitor that he called at defendant’s office and was shown to the office of the general manager; that the latter stated he was general manager and authorized to speak for the company; that the company had erected the wires, and had received a letter from complainant forbidding their erection, &c., though incompetent because hearsay, was, no objection being taken to its admissibility, sufficient to show that defendant caused the wires to be strung, and therefore to authorize a mandatory injunction compelling their removal.</p>

<p>1. Equity has jurisdiction of an action on a lost check, where made to the maker’s own order, and transferred for value without endorsement; the endorsee in such case having only an equitable title.</p> <p>2. Defendant, on agreeing to purchase land, deposited a check for less than one-tenth the consideration to be paid, agreeing to forfeit the sum deposited in case he did not carry out the agreement and take the deed. —Held, stipulated damages and not a penalty, and therefore, the check being lost, complainant’s claim was enforceable in equity.</p>

<p>A decree of specific performance required the grantor to deliver, and the grantee to accept, a deed for certain premises in Burlington, clear of all encumbrances up to September 1st, 1897. The original charter of Burlington provided that taxes should become a lien from the time when assessed. Pursuant to Gen. Stat. p. 8407 1 560, giving the common'councils in cities power to fix by ordinance the time when taxes should be assessed and collected, &c., the common council of Burlington enacted that the city assessor should assess taxes between May 1st and the second Monday in July: that the taxes should become due and payable between December 1st and December 20th; that the common council, at a stated meeting in September, should fix and determine the rate of tax to be levied on each $100 and certify the rate to the assessor, who should thereafter extend the same, &c.—Held, that the taxes for 1897 could not become a lien upon the property until after the rate of taxation was fixed by the common council in September, and therefore did not have to be paid by the grantor in order to comply with the decree.</p>

<p>A judgment entered against a bankrupt after the filing of his petition, though before the adjudication, does not constitute a lien on his property, and cannot be enforced by execution or by creditor’s bill.</p>

<p>On appeal of Thomas W. Dawson from determination of receiver.</p>

<p>1. The act of 1899 (P. L. of 1899 p. 73) prohibiting sewage, factory refuse or other polluting matter being discharged or placed in any stream from which cities, towns, boroughs, townships, or other municipalities receive a water-supply for domestic use, above the point where such water is taken, and fixing a penalty for a violation thereof, and authorizing the state board of health-to enjoin the continuance thereof by suit in the chancery court, is embraced within its title, which recites that it is “An act to secure the purity of the public supplies of potable waters in this state.”</p> <p>2. The statute is not subject to the objection that it is special and local, and therefore unconstitutional, as being a regulation of the internal affairs of towns and counties.</p> <p>3. The statute is not in violation of the constitutional provision prohibiting special or local laws granting any corporation any exclusive privilege, immunity or franchise, as that provision only applies to private corporations.</p> <p>4. The statute, though it includes a provision exempting from its operation municipalities discharging their sewage into rivers and streams, is not special and local legislation, though not applying to all municipalities, or to water in which sewage was lawfully flowing at the time of the act, the potability of the water being a sufficient basis of classification; and therefore the statute is valid, though passed without the giving of the public notice required by the constitution before the passage of special or local laws.</p> <p>5. The statute authorizing the board of health to maintain a suit in the chancery court to enjoin a violation of the act, is not invalid, as being an attempt to confer on the chancery court a jurisdiction which the legislature cannot confer on such court.</p> <p>' 6. The statute is violated, so as to authorize an injunction at the suit of the board of health, if refuse placed in a river above the point where a city takes its water-supply pollutes the water at the place where it is placed in the river, though it does not pollute the water where the city water-supply is obtained.</p>

<p>1. P. L. of 1855 p. 74 .§ 1 provides that the Morristown Gaslight Company shall have power to make and sell gas for the purpose of lighting the streets, &c., of Morristown “and its vicinity.” Section 2 gives it power to lay its gas pipes and erect posts, &e., in the streets of Morristown “and its vicinity.”-—Held, that under this act the corporation was given power to lay its gas pipes in the streets of the borough of Madison, the outer limits of which at that time were not more than a mile distant from Morristown, and nearer than any other of the neighboring villages, it being included in the term “in its vicinity.”</p> <p>2. This authority was not repealed by Gen. Stat. p. 1613 §§ 30, 31, authorizing gas companies to extend their main pipes to any neighboring municipality, provided the common council thereof grant permission.</p> <p>3. The Borough act of 1897, which provides that the borough council may prescribe the manner in which corporations or individuals may exercise any privilege granted to them in the use of any street, authorizes the regulation, but not the prohibition, of such privileges; and an ordinance giving the street committee of a borough arbitrary power to refuse a permit to tear up the streets for the purposes of laying gas pipes is invalid.</p>

<p>Provision in agreement for separation that the husband would pay the wife $G per week for maintenance and support cannot be avoided merely because of subsequent financial troubles of the husband.</p>

On bill, answer and proofs. The bill of complaint in this cause is filed to foreclose a mortgage made by Augustus E. John to Cornelia E. Slack, the complainant, to secure the payment of $500, with interest, upon a lot of land at the southeast corner of Mechanic and Third streets, in the city of Camden, the title to which is stated in the bill of complaint to have vested in the mortgagor, Augustus E'. John, by a deed made to him by Annie Burns, dated March 29th, 1897.

On bill for construction of trust deed and answer. The bill in this case is filed by J. Haines Lippincott, trustee, under a deed dated June 5th, 18^5, made by .Victor Gillou and others to Peter W. Baker, conveying lands at the southeasterly corner of Atlantic and Pennsylvania avenues, in Atlantic City.

On bill, answer and proofs. Tbe bill filed by complainant claims that he is the owner of a lot of land, the houses on which are Nos. 230 and 232 Market street, in the city of Camden. This lot lies adjacent to the southwest corner of Market and Third streets.

On bill, answer, replication and stipulation as to facts. The complainant, John W. Dunham, recovered and entered a judgment against the defendant William M. Cramer, which he caused to be docketed in the court of common pleas of Cape May county, and afterwards in the supreme court of this state, on the 16th day of May, 1900, for the- sum of debt and costs, amounting to $131.68.

<p>1. An agreement between a holder of notes and the heirs of the deceased maker (grandsons of the holder) that the heirs would pay interest on the principal during the life of the holder, in consideration that. the holder would surrender her claim to the principal and deliver the notes to the heirs to be destroyed, is founded on both a valuable and a good consideration, and is binding on the holder’s administrator when fully executed on the part of the holder by the delivery and destruction of the notes.</p> <p>2. In a suit by an administrator to reinstate and re-establish notes held by his intestate (which had been surrendered and destroyed pursuant to such an agreement), on the ground that the agreement was void for want of mental capacity of the holder, evidence considered and held to show that the holder was mentally competent to make the agreement.</p> <p>3. In the suit by the'administrator to reinstate and re-establish the destroyed notes formerly held by his intestate, but surrendered and destroyed by her direction pursuant to such an agreement, it appeared that for about two years before the making of the agreement one of the grandsons and the' holder had lived in the same house, but in separate apartments. The holder of the notes had her own household and servant, and managed her own housekeeping separate and apart from that of the grandson. Another grandson lived a few hundred yards away. They were on friendly terms. The holder of the notes was badly crippled, and in feeble physical health, but there was nothing to show that she depended upon the grandsons for advice or service.—Held, the evidence does not establish that a confidential relation existed between her and the grandsons, so as to call upon the latter to show affirmatively that no undue influence was exercised to procure the agreement for the surrender and destruction of the notes.</p> <p>4. The evidence in this case considered and held to be insufficient to show that at the time she delivered the notes to be destroyed the holder was either mentally incapable, or that she was acting under undue influence.</p>

On bill, answer, replication and proofs. The complainant is the owner of a lot of land in Atlantic City, lying about one hundred feet northerly from the north side of Pacific avenue and about one hundred and fifteen feet easterly from the east side of Yirginia avenue.

<p>1. 'An attempted chattel mortgage of a liquor license will be presumed, to be an attempt to mortgage the privilege conferred by the license, and not the paper license as a chattel of independent intrinsic value, unless the contrary clearly appears.</p> <p>2. A liquor license, being a mere privilege, and not a property right, is incapable of being the subject of a chattel mortgage, either under the general law or under the act of March 28th, 1892 {Gen. Stat. p. 1828 § 195), as the statute does not make the privilege a property right.</p> <p>8. The holder of a liquor license in a city of the second class executed an instrument in the form of a chattel mortgage, purporting to convey the license, by which the mortgagee, on default, was authorized to sell the license for the best price obtainable. The mortgagee, on default, made no effort to secure the consent of the city to a transfer of the license, which it was empowered to authorize by the act of March 28th, 1892. {Gen. Stat. p. 1823 § 195), but advertised the license for sale in connection with other property covered by the mortgage, and purchased the license and other property for a lump sum.—Held, that the relation of the mortgagee to the property was not changed by the sale, but was to be determined from the instrument itself.</p> <p>4. Where it does not appear that the mortgage is restricted to tne written license independently of the privilege granted thereby, the mortgage will not be construed to entitle the mortgagee to the possession of the written license merely for the purpose of preventing the mortgagor from conducting his business.</p> <p>5. The instrument containing a requirement that the sale of the mortgaged property on default shall be “for the best price obtainable,” the mortgagee is not entitled to sell the license at a foreclosure sale, or to the possession thereof for the purpose of such sale, when it does not appear that lie has obtained the consent of the city, under the act of March 28th, 1892 {Gen. Stat. p. 1828 § 195), to a transfer of the license, or that the consent of the city thereto has been refused, without regard to whether the instrument be construed as a pledge of the privilege granted by the •written license, subject to a condition subsequent that th.e city consent thereto, or whether it be ‘regarded as a mortgage of the written license as a chattel, as even'’in the latter case it would not be a sale for the best price obtainable if disconnected with the privileges granted' thereby,.</p> <p>0. The provision oí the instrument authorizing the mortgagee, in case of default, to take possession of the property and sell the same for the best price obtainable, does not authorize the mortgagee to take possession of the license except for the purpose of sale in accordance with the terms of the instrument.</p>

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

<p>When a devise of real estate is made subject to a charge that the devisee should pay to testator’s executors, in one year after testator’s decease, the sum of $10,000, and if said real estate should be encumbered by mortgage or mortgages at testator’s decease, the devisees should take the same subject to said mortgage or mortgages to an amount not exceeding $10,000, and in case such mortgages should be for less than $10,000, then to take the real estate subject thereto and pay the difference between the amount of said mortgage or mortgages and said charge of $10,000.—■ Held, that the estate of testator is liable for the interest of a mortgage encumbering said real estate during the year subsequent to testator’s death.</p>

<p>1. A testator who was weak-minded and easily influenced, and who was iñ the last stages of consumption, went to live with a boyhood friend, an active business man, of acute mind. About a month later the testator made his will, leaving all his property to his friend, with whom he was living, and not mentioning a sister, his next of kin. The will was drawn by a lawyer who was named as executor and with whom the beneficiary had his office, and the beneficiary brought written instructions from the testator to the lawyer for the disposal of the property.—Held, sufficient to establish that the will was executed under' the undue influence of the beneficiary.</p> <p>2. AYhere a beneficiary under a will occupies a position of trust and confidence towards testator, the burden of proof is on him to show that the will was executed without any undue influence.</p>

<p>On appeal from Hunterdon county orphans court.</p>

<p>On appeal from Hudson county orphans court.</p>

<p>Testator was ninety years of age and exhibited a mental decline, accelerated by his wife’s death. Previous to making his will he had executed others, making almost an equal distribution among his sons. Testator and one of his sons had been in business, and in the former will the gift to such son was conditioned that he cancel a bond due him by testator. Three days before the last will was executed, testator signed a paper directing all unsettled accounts between him and such son, after his death, to be referred to arbitrators, waiving limitations. Testator’s children, except such son, were not with him when the last will was executed, and under his direction it was concealed from them. By such will an equal distribution of the estate was made, but the portion of such son was to be in addition to the amount due him by testator.—Held sufficient, in view of testator’s mental condition, to warrant the setting aside of such will for undue influence of such son.</p>

<p>1. A widower, eighty years old and bed-ridden with paralysis, having five children, made a will leaving’to one son and his wife, who lived with him, nearly» all his property for their lives, influenced to do so by the threat of this son that otherwise he and his wife would leave the testator. —Held, that the w;ll was the product of undue influence.</p> <p>2. The facts that the testator, while still surrounded by the same influences, expressed his gratitude toward the beneficiaries and satisfaction with the will he had made, are not sufficient to prove the absence of undue influence.</p>

<p>On appeal from the Middlesex county orphans court.</p>

<p>On appeal of South Orange from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in IS Diclc. Oh. Rep. 9.</p>

<p>A policy of insurance against the loss sustained by an employer through accidents happening to his employes, contained the following clause: “No action shall lie against the [insurance] company as respects any loss, under this policy, unless it shall be brought by the assured himself to reimburse him fqr loss actually sustained and paid by him in satisfaction of a judgment after a trial of the issue.”—Held, (1) that not the amount of the employe’s judgment, but the amount paid by the employer thereon, was the sum for which the insurer was responsible; (2) that the transfer of the employer’s property to a trustee in bankruptcy, by operation of the United States Bankrupt act, was payment within the requirement of this clause, and perfected the liability of the insurer for so much as the employe was entitled to receive out of the bankrupt’s estate; (3) that this liability of the insurer passed, by force of the Bankrupt act, to the trustee in bankruptcy, as assets of the estate, and (4) that the amount for which the insurer is liable will be determined by ascertaining what percentage all the assets of the bankrupt, outside of this policy, will pay on all the debts proved against the estate, outside of the employe’s judgment; the insurer is answerable for the same percentage of that judgment.</p>

<p>• 1. If the whole scope of an arrangement inter partes is fulfilled by the mere making of a will, then nothing legally binding on him who signs the testamentary writing is contemplated, and he remains at liberty to change his mind and provide for a different disposition of his property.</p> <p>2. The court of chancery in this state possesses a general jurisdiction in cases of fraud, as well in cases where the remedy at law is plain, adequate and complete, as in other cases; but when the remedy at law is plain, adequate and complete, the court of chancery is reluctant to exercise its jurisdiction, and will not do so unless the administration of justice will thereby evidently be facilitated.</p> <p>3. The complainants were induced to support the testatrix during several years by her fraudulent pretence that she was destitute, when in fact she had a considerable estate in bank.—Held, that the complainants were entitled to be recompensed out of the estate for the money and property so furnished to her, and that, in view of the numerous small items to be considered in ascertaining the compensation due, their bill in equity for such compensation should be sustained.</p>

<p>1. The appellate court need not consider grounds of objection to the decree below, which were not presented to the court below, and are not mentioned in the petition of appeal.</p> <p>2. A chattel mortgage, which, by the statute, is absolutely void against the creditors of the mortgagor, should not be allowed to interfere with the right of such a creditor to collect his debt in the most speedy and efficacious manner.</p> <p>3. A mortgagor who did not owe the mortgage debt, nevertheless warranted the mortgaged chattels to the mortgagee, the latter having failed to comply with the statute so as to render his mortgage valid against the creditors of the mortgagor, one of those creditors levied upon and sold the chattels to satisfy his judgment.—Held, that the mortgagee was entitled to be subrogated to the lien of that judgment upon the mortgagor’s lands.</p>

<p>On appeal from an order advised by Vice-Chancellor Reed, whose opinion is reported in 1/.7 Atl. Rep. 819.</p>

<p>1. A written antenuptial agreement, complete in all its parts, cannot be added to or varied by parol.</p> <p>2. A party to a contract cannot rescind it on the ground of fraud and, at the same time, retain a benefit from its .partial execution by his co-contractor.</p>

<p>On appeal from a decree advised by Yice-Chancellor Pitne)r, whose opinion is reported in 15 Dick. Ch. Rep. 81.</p>

<p>On appeal from' a decree of tbe chancellor, whose opinion is reported in IS Fióle. Gh. Rep. 18.</p>

<p>On appeal from a decree advised by 'Vice-Chancellor Grey, dismissing the petition of the appellant, whose opinion is reported in J/S Atl. Rep. 510.</p>

The complainants, by their bill, attack a deed made by their father, James Sullivan, to his son John, on the ground that John procured it by fraud and undue influence. There is no affirmative evidence of either fraud or undue influence.

<p>On appeal from a decree advised by Vice-Chancellor Pitney, granting alimony and the custody of children.</p>

<p>The jurisdiction of the court o£ chancery denied in the case stated.</p>

<p>On appeal from a decree advised by Vice-Cháneellor Stevens, whose opinion is reported in 49 Atl. Rep. 752.</p>

<p>On appeal from an order advised by Vice-Chancellor Grey striking out part of the defendants’ answer and dismissing cross-bill.' See opinion reported in 16 Dick. Ch. Rep. SOS.</p>

<p>On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in 16 Dick. Ch. Rep. 497.</p>

<p>The supplement of March 12th, 1851, to “An act concerning wills” (Gen. Stat. p. 8760) enacts “that all wills and testaments * * * shall be in writing, and shall be signed by the testator, which signature shall be made by the testator, or the making thereof acknowledged by him, and such writing declared to be his last will, in presence of two witnesses present at the same time, who shall subscribe their names thereto as witnesses in the presence of the testator.”—Held, that it is essential to validity that everything required to be done by the testator shall precede in point of time the subscription of the witnesses.</p>

On appeal by James L. Davenport from a decree denying an application to set aside an inquisition of lunacy, or for leave to traverse the inquisition, or to have an issue to try the fact of his alleged lunacy and confirming the proceedings and inquisition.

<p>1. The testimony of the witnesses sworn on behalf of the petitioner, as to the charges of adultery against the defendant, upon which the decree below is founded, considered to bear evident marks of improbability and exaggeration, and held to have been fully met and disproved by the proofs of the defendant. And held, also, that the evidence relating to the prior conduct of the defendant, introduced by the petitioner for the purpose of showing an alleged adulterous disposition on her part toward the co-respondent; failed to establish such a charge.</p> <p>2. The rule stated in Berohmans v. Berohmans, 1 O. B. Or. 122, that “the. testimony of one witness uncorroborated, unsupported and in its details improbable, is not sufficient to establish the charge of adultery against the full and explicit counter testimony of the person accused and her particeps eriminis," approved.</p> <p>3: In cases depending upon circumstantial evidence for support, the will to commit the adulterous act, as well as the opportunity for its commission, must be established.</p> <p>4. While in a suit for divorce for adultery by a husband against the wife, his conduct in designedly encouraging and furnishing occasions and ■opportunities for suspicion against her may not constitute such connivance by him as to be legally sufficient to bar him from his right to maintain his suit, yet liis conduct may serve to explain and excuse the appearances of intimacy into which she thereby became involved, and out of which the charges of -adultery against her arose.</p>

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

<p>1. A will directing the setting aside of a sufficient portion of testator’s estate to produce an annual income of a certain sum, and directing a portion of the income be paid to a brother, and the remainder to another brother, and directing that, on the death of the brothers, the fund shall be divided among other beneficiaries, and that either of such bequests shall lapse by the death of the beneficiary before the testator, requires the setting aside of sufficient property to produce the designated income, though one of the brothers dies before the testator, as the bequests of the corpus of the fund are not to take effect till the death of both life beneficiaries.</p> <p>2. An executor required by will to set aside property sufficient to produce a certain income, must set aside an amount of property sufficient, in his judgment, in view of present and probable future conditions, to produce such income.</p> <p>3. Judicial notice will be taken of the fact that the return on safe investments has been continually diminishing for many years.</p> <p>4. A will directed executors to give a portion of the income of a certain fund to a brother for life, the remaining income to another brother for life, and each bequest was made subject to lapse if the brother to whom it was made died before testator; and it was further directed that the capital be divided among certain beneficiaries on the death of both brothers. A subsequent clause directed the division of testator’s estate among .certain beneficiaries. One brother died before testator.—Held, that the beneficiaries in the capital of the fund were not entitled to a distribution thereof, less a sum sufficient to pay the annuity to the surviving brother, by agreeing to such a division, as the income of the fund not disposed of would pass to the residuary legatees, and not to the beneficiaries entitled to the fund.</p>

<p>1. The provisions of the “Act concerning idiots, lunatics, habitual drunkards and persons alleged to be lunatics by reason of their minds being so unsound as to render them incapable of controlling themselves and their property,” approved March 23d, 1897 (Gen. Stat. p. 1709), do not require the commissioners in an inquisition of lunacy to issue their precept to the sheriff commanding him to return a jury of only twelve persons, nor do they require the sheriff to return only twelve persons to make such inquiry.</p> <p>2. Constables of the county are not improper persons to be selected and summoned to serve on such a jury, and an inquisition is not irregular because taken before a jury composed in part of such officers.</p> <p>3. The neglect of the commissioners to charge certain pertinent requests made on behalf of the alleged lunatics, will not necessarily lead to the quashing of the inquisition, when it appears that the commissioners did! charge the jury, but their charge is not laid before the court, and it is not made to appear that they did not properly instruct the jury in the-matters which were the subject of the requests, the inquisition should not. be quashed.</p> <p>4. In this case, the evidence before the commissioners and jury was contradictory and conflicting. There was no such preponderance against the return as would justify its being set aside. But as there was thereby-raised a reasonable doubt of the propriety of the result, a traverse should-, be allowed if the alleged lunatic intelligently desires it.</p>

<p>On motion to strike out demurrer.</p>

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

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

On final hearing on bill, answer and proofs. The complainant, the Lembeck and Betz Eagle Brewing Company, files its bill against the defendants to foreclose a mortgage given to it by Simon Kelly, deceased. The mortgage is dated September 1st, 1896, and was given to secure the sum of $10,000 on-the 1st day-of .March, 1897, with interest payable semi-annually.

<p>On bill for partition and special relief. Heard on bill, an.swer and proofs in open court.</p>

On demurrers to bills. Three causes argued together. The first two suits are brought by a stockholder in the Electric Vehicle Company, in behalf of himself and all other stockholders, against successive sets of directors of that company; and the third suit is brought by a stockholder in the American Malting Company, in behalf of himself -and all other stockholders, against the directors thereof.

The bill in this cause was filed on the 18th of April, 1901, 'by the complainants, Frank & Dugan, against upwards of eighty •defendants, and to it was annexed numerous affidavits charging that the defendants were conspiring and acting together and .separately to'prevent certain operatives of the complainants from •continuing to work for them.

On bill, answer and proofs in open court. This is a suit by vendees against vendors for tbe specific performance of a contract, under seal, to convey land, and for an accounting of the rents of the same from its date according to the terms thereof.

On demurrer. The facts admitted by the demurrer are that, in April, 1899, the complainant and defendant entered into a partnership for the manufacture and sale of certain musical-instruments known as guitar-zithers.

<p>Where a town lot is sold at a judicial sale under an advertisement which describes'it as being one hundred feet front and two hundred .and fifty-five feet deep, while it is only ninety-three feet front and two hundred and fifty-five feet deep by including the sidewalk, but the misrepresentation was innocent and the purchaser was well acquainted with the lot, though he did not know that it was not as large as represented in the advertisement, and he was not buying it for a purpose requiring such an exact area, and there is nothing in the ease to lead to the conclusion that he would not have bought if he had known the exact dimensions, he will be required to specifically perform his contract, with a deduction in price for the deficiency in quantity.</p>

<p>On bill, answer and proofs in open court.</p>

On motion to vacate orders. This is a bill by a judgment creditor to set aside three several conveyances and one mortgage of several parcels of land made by the judgment debtor, William D. Perrine—two of the conveyances to Sarah M. Perrine, his wife, the other conveyance to his son Samuel E. Perrine and the mortgage to his son Elmer Perrine—on the ground that they are fraudulent as against the complainant’s debt. The original bill was filed January 29th, 1900.

<p>On final bearing on bill, answer and. proofs.</p>

<p>1. The jurisdiction of a court of equity for enforcing payment of debts of a decedent, independent of the general administration of the statute in chancery, will not be exercised when the ordinary procedure at law, and under the statutes for collection of debts, is applicable, and there are no special reasons to supersede them.</p> <p>2. ‘ Bill in equity, by creditor at large, to enforce payment of debt, will not lie until the debt is established at law or admitted by the executors.</p> <p>3. Complainant in a bill to charge legatees and devisees with a claim against testator claimed that his sole remedy was in equity, since, being a devisee himself, he could not bring an action at law for the debt.— Held, that the contention was of no merit: (1) it appearing from the will that the trustees were devisees of the legal title, and as such were subject to suit, and (2) the personal estate being first liable for the debts and admitted to be sufficient to pay them.</p>

<p>1. Land of a judgment debtor was sold under execution, the debtor" knowing of the advertisement for the sale, and procuring one adjournment thereof. The purchaser went into possession and collected rents,with the knowledge of the judgment debtor, and mortgaged the premises-to pay the price and satisfy prior liens. The purchaser sold the premises- and his vendee went into possession. The judgment, under which the execution sale was made, was void for failure to comply with the acts-relating to docketing of judgments on bill filed to foreclose the mortgage and charge the land upon the mortgage and payments.—Held, that the-judgment debtor was not estopped from recovering the premises as against" the mortgagee, it not appearing that the purchase or loan was induced by' any positive acts or statements on the part of the owner or that he knew" at the time of those transactions that the execution sale was void.</p> <p>2. The mortgagee was entitled to have the amount paid to discharge theprior tax and judgment liens declared a lien on the land.</p> <p>3. Inasmuch as the recovery of the land by the owner in an action of' ejectment was a repudiation of the application of the proceeds of sale to* satisfy the judgment, it remained unsatisfied so that the amount paid on-the execution sale could not be a charge on the land. Semble, the purchaser might apply to the court of law to proceed upon the judgment.</p> <p>4. Where a bill prays for special relief on several grounds, and, also,general relief, a general demurrer must be overruled if any claim of the bill* is sustained.</p> <p>5. If the complainant, on the facts stated in a bill, is entitled to any equitable relief whatever, and there is a prayer for general relief, this-* may be granted, even if the special relief claimed be not warranted by" the facts, or if he mistakes the principles of equity upon which his righi? to relief is founded.</p>

On bill for injunction and application for preliminary injunction. Heard on bill and affidavits, and answer and affidavits. Complainant is the holder of one hundred and sixteen shares ■••of the preferred stock of the United States Steel Corporation, ■of which she became the owner in November, 1901, and for which she paid $10,759.

<p>1. A customer opened at the same time two accounts with a broker—one in his individual name and the other in his name as trustee. The individual account was a speculative one, and the trustee account was chiefly a loan account. The former was a continuing one, while the latter was settled twice and reopened for a third time. In a suit by a beneficiary of the trust estate against the broker for an accounting, evidence examined, and held sufficient to show that the broker had notice that the deposits in the trust account were trust property.</p> <p>2. Where a person deposits money in his own name as trustee to an amount not exceeding the sum he is chargeable with as trustee, and which amount is not identified or accounted for by him, the law presumes, in the absence of any evidence, that the money deposited consisted of property originally belonging to the trust funds, or that the deposit constitutes a fund substituted for trust funds taken, and this presumption is effective not only as against the depositor, but also as against the depositary, unless he is a tona fide depositary without notice.</p> <p>3. A debt due a depositary on the individual account of a depositor cannot be set off against a balance due on the depositor’s account as trustee, when the depositary had actual or constructive notice of the trust.</p>

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

<p>Where a plea to the jurisdiction has been filed and has been duly noticed and set down for argument at the next term, as required by section 20 of the Chancery act of 1902, the complainant is not entitled to-move to strike out the plea under Rule 213, providing that any objection to a pleading may be made and adjudicated on motion without the filing of a demurrer or exceptions, and that the making of a motion under the-rule shall be deemed a waiver of the right to demur or except.</p>

<p>1. A bona fide assignee for value of a mortgage takes it free from all latent equities existing in favor of third parties.</p> <p>2. The president of a trust company, acting as attorney for other parties, negotiated the execution of a mortgage to his clients. The mortgage was subsequently assigned to the trust company, it not appearing who conducted this transaction on its behalf.—Held, that the company was not chargeable with any knowledge its president may have had in regard to the purpose for which the mortgage was given.</p> <p>3. An assignee taking a mortgage as collateral security for pre-existing debts, without delivering up the evidence of such debts, was not a purchaser for value.</p> <p>4. A mortgage of $4,000 was given to secure a note of $3,000. The mortgagee assigned the mortgage to a trust company as security for the note and other pre-existing debts.—Held, that the equity of the mortgagor to have the mortgage reassigned to him on payment of the note was superior to the equity of the trust company to hold it for the pre-existing debts. .</p>

<p>1. The revised city charter of Camden, approved February 14th, 1871 (section 35), prescribing the minimum thickness of party walls, gives the common council no authority to enact an ordinance permitting a lot owner to build a wall partly on the land of an adjoining- owner without his consent.</p> <p>2. Where a.revised charter omitted the provisions of the prior charter, which authorized an ordinance to permit a party wall to be built partly on the land of an adjoining owner without his consent, such an ordinance, existing at the time of the revision, is annulled by the adoption of the revised charter.</p> <p>3. Where 'an ordinance authorizing a party wall to be built partly on the land of an adjoining owner without his consent also provides that no person shall lay the foundations of any party wall without first applying to the city surveyor to set out and regulate the construction, such application must be made before the wall can be built.</p> <p>4. Where complainant built partly on defendant’s land, he was not thereby estopped from objecting to defendant’s extending the wall the entire length of the lot.</p>

<p>A father purchased realty for his son, who testified that the father said repeatedly that it was bought with money which had belonged to his deceased first wife, the mother of this son. A brother of th$ father testified that the father had told him that he intended to keep the money of his first wife until he could find a place to invest it for this son, and that .after the property in question was purchased the father told witness that it was paid for with the money of the first wife. During the life óf the first wife the husband had purchased two houses and lots and put the title in her name, and in a memorandum of a will, dictated some months before his death, he gave all his interest in these two. houses to the son, and the rest of his estate to his second wife and her children.—Held, sufficient to show that the property purchased for the son was not intended as an advancement.</p>

<p>1. Corporation directors cannot fix their own salaries for services rendered their corporation, and when they attempt to do so they will be allowed only the actual value of such services.</p> <p>2. Three directors of a wall paper corporation voted themselves salaries ■of $5,000 a year each, as president, vice-president and secretary, respectively.—Hold, on review of the evidence, that the services were not sufficient to justify the $5,000 salaries, $2,000 a year each being sufficient.</p>

<p>1. The ordinary shareholders of a building and loan association are not creditors, at least until withdrawal claims have been filed, and in computing the liabilities of the company they should be considered as entitled to what they have paid in, without deducting their proportion of the expenses.</p> <p>2. Though the insolvency alone of a building and loan association will not in all cases justify the winding up of its business under P. L. of 1S99 p. '366, providing that an injunction may bo granted and a receiver appointed where such an association is insolvent, or exceeding its powers, or violating the law, or where its continuation or methods of business will render its further operation hazardous to the public or to those having funds in its custody, yet where it appears that an association which has been running- eight and a half years is not only insolvent, but that the withdrawals have been large, its expenses extravagant and its investments carelessly made, and that there is no probability of maturing the shares of the persistent members within a reasonable time, an injunction will be granted and a receiver appointed.</p>

On order to show cause why an injunction should not issue-restraining the defendant from prosecuting an attachment in the courts of West Virginia.

<p>On exceptions.</p>

<p>1. In a suit to subject to a judgment land conveyed by the judgment debtor to his wife, she, not having been a party to the action in which the judgment was rendered, may make the defence that the judgment was founded on a gaming transaction.</p> <p>2. In determining whether transactions in stocks are lawful or merely gaming transactions, that the transactions between the broker and those of whom he bought or to whom he sold are real, is not decisive, but the question is whether, as between broker and customer, the dealings are really dealings in differences.</p>

<p>1. Where, at the time of executing a voluntary deed from a father to his son it was understood that another son was to have the rents of the property for life, but no reservation to this effect was made in the deed,, such omission was fatal, and the deed should be set aside.</p> <p>2. A father, about eighty years old and infirm, conveyed all his property to a son for a nominal consideration, reserving only a life estate. The property was originally purchased with the earnings of the father and his sons, another son having furnished most of the price. It appears that the conveyance was drawn by a solicitor who was to derive a pecuniary benefit from the consummation of the transaction; that the deed was the product of temporary irritation on the part of the grantor; that the conveyance was unfair in itself and so regarded by the grantee at the time, and that the act was improvident.-—Held, that the conveyance should be permitted to stand only as security for the money paid by the grantee to the solicitor as part of the consideration.</p>

<p>1. In an action by the owners of a dam and water-power for compensation for the pollution of the water by the sewage of a city, where the dam has been maintained at its present height for forty years, so that adverse claimants are barred, and was built at a point where its construction was or might have been lawful, it cannot be assumed, in the absence of evidence, that the dam is unlawful.</p> <p>2. A water-power company was authorized by the legislature to buy and hold land and water-power for manufacturing purposes, and to sell, let or otherwise dispose thereof as it should deem proper. It constructed a dam and executed leases of mill power, granting to each lessee the right to draw a specified amount of water from the nearest raceway or canal.— .Mold, that the water rights acquired by such lessees were property of which they could not constitutionally be deprived without compensation, whether they were owners or lessees of lands bordering on the stream or not.</p> <p>3. Where the owner of a dam and water-power executed leases, granting to each lessee the right to draw a specified quantity of water from the nearest raceway or canal, so long as the water in the main reservoir should stand at a specified height, and providing that if the water should fall below such height, the gates of the lessees should be shut off in the reverse order of their numbers until the height of the water was restored—Meld, that lessor and lessee were properly joined' as parties complainant on a bill filed against the city.</p>

<p>1. An easement of light is an encumbrance.</p> <p>2. Where the owner of two lots conveyed the northerly one with a covenant against encumbrances and there was on the southerly lot a building with a garret window facing north, the covenant negatives the reservation by implication of an easement of light and air, in the absence of a “necessity” for such easement, and such necessity must be absolute.</p>

On bill, answer and proofs. The complainants are the owners and occupiers of Haddon Hall, a large seaside hotel, located at the corner of North Carolina avenue and the boardwalk, at Atlantic City, New Jersey. This bill is filed for the abatement of alleged nuisances created by repellant and excessive noises in, and the throwing off of smoke and soot from, the recently-erected glass-house of the •defendant company, upon property which almost immediately adjoins Haddon Hall.

On'bill, answer and proofs.' This bill is filed by the complainant, 'Bruere, as the executor of the will of Evan E. Cook, who died June, 1899, testate. His will is dated the 8th day of August, 1892. It contains sundry preliminary gifts, and a final residúarjr bequest and devise in these words: “Thirdly.

<p>On bill of interpleader, answers and proofs.</p>

• On bill and affidavits. On order to show cause and defendants affidavits, and motion for preliminary injunction. The bill of complaint in this case was originally filed against George C. Tilyou as sole defendant.

<p>Where the several owners of lots fronting on a beach and extending to high-water mark join in a deed granting to a city, for their own benefit and that of the public, a continuous strip across them at the ocean edge for a walk, with a covenant that no building shall be erected to the ocean-ward of the strip, this restriction attaches, in favor of another grantor, to lands below high-water mark owned by one of the grantors who had acquired the state’s title thereto.</p>

Ort bill for divorce, answer and proofs. The bill of complaint in this case was filed on the 24th day of June, 1901, as by the complainant husband, praying for a divorce from the defendant wife, because of her alleged desertion.

<p>■ 1. In divorce by a husband on the ground of desertion, the burden is on the husband, in order to prove a willful and obstinate desertion, to show affirmatively that the wife left of her own choice, against his will, and that she continued to stay away when it was her duty to return.</p> <p>2. In divorce by a husband on the ground of desertion, even if it bo shown that the original separation was wrongful on the part of the wife, yet he must show that he has sought, by proper steps, to bring about her return.</p>

On bill of interpleader. Hearing on the claims of interpleading defendants. This case arises under an interpleader bill filed by the Grand Lodge of the Ancient Order of United Workmen of New Jersey, an unincorporated and fraternal benefit society, doing business in the State of New Jersey.

On bill for injunction, &c. On motion to strike out parts of 'bill, &c. The bill of complaint is filed by the owner of a farm and marl pits,’who alleges that the defendant (who presently owns a mill and dam located down stream from the complainant’s farm) has raised the height of his dam, and thus stopped the free flow of water, at its natural level, in an ancient watci; course, and, by backing, it has overflowed part of complainant’s farm and marl pits.

On petition. The Newark Plank Road Company was incorporated by special act of the legislature, approved February 24th, 1849. Under the provisions of its charter and supplements the company constructed a continuous highway from the city of Newark to the Hudson river, in Jersey City.

On final hearing on bill, answer and proofs. The complainant, George E. Carter, as trustee for his two infant children, claims to hold a mortgage upon a house and lot in Eanwood, Union county, New Jersey, belonging to his wife, in which the complainant and his wife and these children reside, and he files his bill in this cause to foreclose the same.

On bill, answer and proofs. The bill is filed by the complainant, the widow of James Good-heart, deceased, to have her dower in certain lands assigned to her and to have an accounting for her share of rents, &e. Some of the land lies in Hudson county and some in Middlesex county. As to one of the tracts the right of the complainant to dower is not denied. In this tract the husband had a legal estate, without equitable incidents of any kind.

<p>On motion to strike out cross-bill and part of answer.</p>

On motion, on older to show cause, for an injunction to restrain defendants, former employes of the complainant, and now on strike, from unlawful interference with the complainant’s business, the employment of workmen, &c. Heard on bill, answer and affidavits.

<p>1. A divorce for desertion will not be granted on the unsupported testimony of the petitioner as to the causes of the separation, especially where the separation occurred in another state.</p> <p>2. The facts shown—Held, not to establish desertion within the statute, and, further, that the facts proven do not show such permanent residence in this state as to give the court jurisdiction of the suit.</p>

<p>On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in 16 Dick. Gh.-Rep. 522.</p>

<p>On appeal from an order advised by Vice-Chancellor Pitney, whose opinion is reported in 16 Riele. Ch. Rep. SOS.</p>

<p>On appeal of Jonathan J. Armour, survivor, &c., from an order sustaining a demurrer advised by Vice-Chancellor Emery, whose opinion is reported in 1/.9 Atl. Rep. 1117.</p>

<p>On appeal from an order advised by Vice-Chancellor Pitney, whose opinion is reported in 51 Atl. Rep. 621.</p>

Brownswords v. Edwards, 2 Ves. Sr. 21/.7; Cochrane v. Willis, De G. J. & S. 229; Sheffield Water Works v. Yeomans, L. B. 2 Ch. App. 8. It seems to me that the case at bar is one to which this rule ought to be applied. It is quite evident, on a careful perusal of the bill, that the facts and circumstances upon which the decision of the case will turn are not all before the- court, and that no satisfactory decision can be reached. First.

<p>On appeal from a decree advised by "Vice-Chancellor Stevenson dismissing a petition for divorce, whose opinion is reported in 18 Ride. Gh. Rep. 771.</p>

<p>The provision of the statute for the allowance of costs to a successful demurrant is mandatory.</p>

<p>On appeal from an order advised by Vice-Chancellor Emery, whose opinion is reported in 18 Dich. Gh. Rep. 506.</p>

<p>On appeal from an order of Vice-Chancellor Emery, who delivered the following conclusions:</p>

<p>Ou appeal from a decree advised by Vice-Chancellor Eeed, whose opinion is reported in 17 Dick. Ch. Rep. llfl.</p>

On appeal of Thomas F. McLaughlin, a defendant. On appeal from an order of the chancellor, dated April 15th, 1902, who filed no opinion.