Volume 67 — New Jersey Equity Reports

<p>On bill, answer and stipulated facts.</p>

<p>On motion, &c.</p>

The object of this bill is to restrain a nuisance in the nature of a purpresture. It is also, in effect, a bill by A cestui que trust to restrain a breach of trust by a trustee. The complainant is the owner of ten lots, each twenty-five feet by one hundred feet, and each facing on Eranklin street, in the town of Union, in the county of Hudson.

On final hearing on bill, answer, cross-bill and answer and proofs. The petition is by husband against wife. It alleges that the parties were married in May,' 1871; that they lived together until October, 1891, most of the time in this state, when they separated. It then charges that the defendant, at divers times between the 10th of August, 1902, and the 4th of January, 19D3, committed adultery with one L. at a certain house in the city of Tew York.

<p>1. A bill by an inventor and a corporation using his surname to enjoin its use by a defendant corporation alleged that its use had been enjoined by a foreign court in a suit brought by the inventor’s son, and it was claimed that the failure to allege that the injunction was dissolved was a suppression and want of frankness in the case. — Hold, that it was no objection to the bill, since the fact alleged was intended, apparently, only to show that the son, so far as practicable, had revoked his authority to use (he name, and his father was not a party to the former suit, and, besides, the present suit did not call for interim restraint, .to which the rule of frankness peculiarly applies.</p> <p>2. The 1'act that affidavits in opposition to an injunction against the use of a corporate name in violation of complainant’s rights show that the defendant corporation had no intention of manufacturing anything manufactured by complainants, is immaterial, where defendant’s charter empowers it to do so.</p> <p>3. It is no objection to injunction against the use of a corporate name that it does not appear that any wrong has been done, or that there is danger thereof to complainant’s injury, as in such a case complainant must act promptly, before the rights of innocent stockholders in the defendant corporation may become involved.</p> <p>4. A corporation incorporated to conduct a business apparently in competition with that of an inventor and a corporation already using his name, incorporated his surname in its own, basing its rights to use the same on an alleged grant from his son, but it was apparent that it sought the use thereof on account of the great prestige attached thereto, and not on account of any connection with the son or prestige connected with his name. — Held, that the son had no right to make such grant.</p> <p>5. Injunction is a proper remedy to prevent a corporation from including in its name the surname of an inventor already adopted and used by another corporation with his consent.</p> <p>6. Where a suit for injunction against the use of a name by a corporation is heard on an order to show cause on the bill, affidavits and exhibits, relief should, not await the final hearing where it appears from the defendants’ affidavits and admitted facts in the case that it is highly improbable, if not impossible, that defendants will finally succeed.</p>

<p>A building contract provided for payment of the contractor in four installments, the third “when the trim is on. and the doors hung.” The ■architect gave his certificate and the third payment was made, in good faith, before all the doors and trim were on, the work necessary to put them on being worth $70; but other work, worth $250, not necessary to 'be done before that payment was due, had been done. The architect, however, 'testified that in practice those words were not construed strictly, but indicated a certain stage of the work; that such stage had been reached, and that the doors and trim then off were ordinarily kept off till the last of the work, so as not to interfere with other work and to prevent their being marred. — Held, that there was no advance payment, within Mechanics’ Lien law (P. L. of 7S9S p. 5S9 § 5), providing that if the ■owner of a building liable to mechanics’ liens shall, in advance of the terms of a building contract, make a payment thereon, and the amount thereafter due thereon is insufficient to satisfy notices served according to the act, lie shall be liable as though such payment had not been made.</p>

<p>1. A misrepresentation by a seller of a patent right will not entitle the purchaser to rescind unless it amounts to an untrue statement of some present fact, and a mere promise or prediction is not sufficient.</p> <p>2. In a suit by the purchaser of a patent right to a burglar alarm to set aside the sale on the ground of misrepresentation, evidence considered, and hold sufficient to show that the seller had falsely represented that a device equally reliable with the sample exhibited by him could be made for a certain price, on which representation the purchaser relied.</p> <p>3. Plaintiff purchased of defendant a patent right, and at the same time assigned it to defendant as part security for a loan, the same being also-secured by a mortgage and a life policy on plaintiff’s life. By arrangement with the insurance agent, plaintiff was to have a cash rebate on the first premium on the- policy, and by arrangement between the parties the rebate was to come to him through defendant. — Held, that plaintiff’s subsequent insistence on payment to him of the rebate by defendant did not amount to an affirmance of the contract of sale, which, as a matter of fact, had been induced by false representations of the seller.</p> <p>4. Where one who had purchased a patent right, in reliance on false representations of the seller, sought, about a month later, to induce him to take back the patent, but he refused to do so, in a subsequent suit by the purchaser for rescission plaintiff should not be compelled to make any compensation for depreciation in the value of the patent owing to lapse of time.</p>

On final hearing on bill, answer and proofs. Held: and holds, a mortgage for $15,000. Next below -that mortgage are two to William E. Eisher and one to Frieda Hart. Subsequently to the giving of these mortgages the Fisher ■company was thrown into involuntary bankruptcy, and Messrs. Samuel F. Wylie and Frederick Weigel were appointed trustees.

<p>Hearing on petition of defendant O’Callaghan and answer of complainant thereto.</p>

On order to show cause why inj unction should not issue. Heard on bill and affidavits on the part oi the complainants and answering affidavits on the part of the defendants.

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

<p>1. A decree of divorce, made in a cause where the defendant was not within the territorial jurisdiction of the court, and was not served with process and did not appear, and the complainant had no domicile within the territorial jurisdiction, is absolutely void and incapable of being ratified by the acquiescence of the defendant.</p> <p>2. A decree of divorce against a defendant wife, who does not reside within the jurisdiction and who does not appear, based upon her adultery, which had been fully and completely condoned by the husband, but which condonement was concealed from the master, will be set aside on a bill of review by the wife.</p> <p>3. A delay of about four years in bringing a bill to review a decree of ■divorce held not to be fatal where the wife was poor, in ill health and ignorant of her rights, and no copy of the decree had been served .upon her or other positive information brought home to her until more than a year after the decree was entered.</p>

<p>On motion on petition and answer.</p>

On final hearing on bill, answers and proofs. The suit was originally commenced by a bill by Eobert Davis, as assignee of Mary Collins, against Eobert O. Babbitt, as administrator of Martin Collins, deceased, and Mary Bolger, to which separate answers were filed, and the cause brought to issue and hearing on the 4th day of February, 1903.

On bill to restrain a nuisance. On motion for preliminary injunction. Heard on bill and affidavits on the part of the complainants, and also on the part of the defendant.

In insolvency. This is a petition by the receivers of an insolvent corporation praying for instructions from this court as to what disposition they shall make of a claim on behalf of the State of New Jersey for state franchise taxes which have accrued since the date of the making of the decree of insolvency herein.

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

<p>1. Where a father and son owned property together, which was largely acquired through the business ability of the son and direct applications of his money, the legal title to the property being taken in the name of the father, on condition that at his death it should be left by will to the son, but was in fact left by will to the son’s stepmother, an agreement between the stepmother and the son that at her death, in consideration of the son making no claim against his father’s estate, she would leave the property to the son by will, constituted a family arrangement or compromise, which, being founded on sufficient consideration and afterward acted on in good faith, will be enforced, though resting in parol.</p> <p>2. The abandonment of any claim by the son against his father’s estate, and the enjoyment by the stepmother during her life of the use of the property, constituted a valid consideration for the contract between the stepmother and stepson.</p> <p>3. Where an agreement was entered into between a stepmother and stepson that, in consideration of his abandonment of any claim against his father’s estate, she would leave certain property to him by will at her death, which was acquiesced in by both until her death, but not complied with by her, so that it would be impossible to restore him to the situation existing at the time of his father’s death, an action at law for damages against the stepmother’s estate would not afford an adequate remedy, and specific performance will be decreed in order to prevent a fraud.</p> <p>4. In a suit against a decedent’s estate to enforce specific performance of an oral agreement to devise land to complainant, in which decedent’s executors are parties, complainant’s testimony as to transactions with •decedent, is inadmissible, under P. L. of 1900 p. 363 § 4 relating to evidence ; but the agreement being based on a promise of the deceased father of complainant to leave the property to the son by will, which he failed to ■do, complainant’s testimony as to transactions with his father is admissible, the father’s executors not being parties to the suit.</p> <p>5. Where an oral agreement between decedent and complainant to ■devise land distinctly related to the property received by the decedent from her husband’s will, the contract is not too vague and indefinite to be ■enforced, on the ground that the property was not described.</p>

<p>On application for injunction, heard on petition, affidavits and answering affidavits.</p>

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

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

On bill of interpleader, filed by the complainant, who owed a portion of the contract price for building a cottage, against which retainers have been filed by laborers and materialmen.

<p>Desertion by a husband, which has existed during the period fixed by the statute as ground for an absolute divorce, axjpearing- by his own testimony, is a bar to a divorce against the wife for subsequent adultery, though it is not pleaded in bar.</p>

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

On demurrer to the bill and upon a rule to show cause why an injunction should not issue restraining the defendants from utilizing a trade secret.

These suits are brought by the receiver of an insolvent corporation to recover of the respective defendants certain payments, alleged to have been made to them by the officers of the company after the company became insolvent and had suspended its ordinary business for want of funds to carry on the same as well as in contemplation of the insolvency.

<p>On motion to dismiss the bill because of the absence of a party as defendant, without which a decree cannot be made.</p>

<p>On an interpleader bill it appeared that the city of Jersey City had made a contract, while it had a water-supply of its own, to supply another municipality — the borough of East Newark — with water for public and domestic purposes. Its own supply became unfit for use and so it contracted with the East Jersey Water Company for another supply, but for its own needs only. The East Jersey company furnished this supply, and also furnished a supply to the borough. The supply to the borough ran for a short distance through a pipe belonging to Jersey City. The East Jersey company charged Jersey City at the rate of $35 per million gallons, not only for so much water as Jersey City and its inhabitants consumed, but also for the water furnished the borough. Jersey City charged the borough at the rate of $90 per million gallons for the water it received. Although the contract between the borough and Jersey City expired in July, 1902, the arrangement was allowed to continue, without contract, until July, 1903, when the assignees of the Bast Jersey company notified the borough that it must pay the price of the water ($90) to them.— Held, that Jersey City, having neither the power to make a contract to supply another municipality with water not its own, nor an express contract which purported to do so, nor water of its own to furnish, could not recover the price of the water furnished to the borough. Held further, that although neither the East Jersey company nor its assignees had any express contract with the borough to furnish it with water, yet inasmuch as that company had actually supplied the water, and inasmuch as the borough had, in its interpleader bill, admitted its receipt and its liability to pay for it, the price of the water should be adjudged to belong to the company or its assignees. Held further, that out of the moneys brought into court, Jersey City was entitled to compensation for the use of its pipe.</p>

<p>On final hearing.</p>

<p>1. If a defendant submits to answer he must answer fully, and not only as to his knowledge of each fact charged; he must answer if he have no knowledge, as to his information and belief regarding it.</p> <p>2. An unqualified admission on information and belief will dispense with proof of the fact- alleged.</p> <p>3. A defendant is not, in answering, required to obtain information, not in his own or his agent’s possession.</p>

<p>On application for a preliminar}'- injunction on bill, answer and alfid avits.</p>

On bill, anstver and proofs on final bearing. The bill of complaint in this canso is filed by the city of Atlantic City to restrain the defendant from erecting a lateral wooden addition to its pier, already built oceanward from the Atlantic Gityr boardwalk.

On bill, answer and proofs. This bill is filed by George R. Myers, Joseph T. Kavenangh and George W. Howard, severally and jointly, trading as the American Machine Company, against the sole defendant-, the Steel Machine Company, a corporation of this state, asking that the defendant company be restrained from selling or attempting to sell certain described printing presses, which it is alleged the defendant is about to do, contrary to the terms of an agreement made by the…

<p>1. An owner of lands bordering on high-water mark, who has not obtained the state’s title to the lands lying in front of his property and below low-water mark, cannot charge the latter with an easement enforceable against a subsequent grant by the state of its title in those lands.</p> <p>2. Where an owner of land bordering on high-water mark conveyed the same by a deed containing a covenant against the erection of any building nearer than twenty-seven feet to a certain street, this restriction did not apply to lands subsequently added by natural accretion to that conveyed.</p> <p>3. Where several owners of lots fronting on a beach joined in a deed granting to a city an easement in a strip of land several miles long, and passing over the property of a great many different owners, to be used for a walk, with a covenant that no building should be erected on the ocean side, one of the co-grantors was entitled to restrain one of the other grantors from building a structure on the ocean side of the walk on land which the latter grantor had, subsequent to the covenant, acquired from the state.</p>

On bill, answer and proofs. The bill of complaint in this canse is filed by one Alla A. Davenport, who claims to be the second wife and widow of Thomas C. Davenport, who died on the 17th day of February, 1903.

<p>A litigant, against whom a cause has been finally decided in the supreme court, who has in good faith promptly taken a writ of error to the court of errors and appeals, which he is diligently prosecuting, and who is unable to secure from any law court a restraint against such a change in the status of the subject-matter of the controversy as may make nugatory the judgment of the court of review when pronounced, has (if the matter in dispute is one worthy to be considered by a court of justice) an independent equity, which this court will recognize and protect, to prevent his successful opponent from radically altering the situation of the subject-matter in dispute pending the determination of the writ of error.</p>

On bill of interpleader and claims of interpleading defendants. This is an interpleader bill filed by Anna E. Fehling against Everett G. Goings and others. The complainant employed the defendant Goings under a written contract to alter and repair her property, known as “The Hotel Vallaire,” in Atlantic City. The contract was filed in the Atlantic county clerk’s office.

The complainant is the administrator, &c., of Eichard O. Mason. In his lifetime Mason was engaged in the business of selling or renting pianos, with a privilege, after a certain sum of rentals had been paid, to purchase the instrument. In each case a lease for the pianos in the name of Mason as lessor was given and accepted by the person who rented it, and this lease was immediately assigned by Mason to the defendant. Several hundred pianos were thus disposed of by Mason.

<p>1. Though ordinarily an allegation in a bill that a roadway is a private right of way, and not a public street, would be deemed an allegation of fact and admitted by a demurrer, yet where a bill alleges facts which show that the roadway is a public highway subjected to a public easement of 'travel, an averment that it is not a public highway may be taken as' a mere statement ■ of an erroneous legal conclusion not admitted by demurrer.</p> <p>2. The construction by a landowner of structures causing the surface water to flow onto adjoining land, whereby the total volume of surface water flowing over such land is so increased as to cause damage, gives- the owner of such land no right of action.</p> <p>3. Under the facts — Held, that the complainant’s case rested upon an alleged legal right which has never been recognized in New Jersey, and which would be an exception to a well-settled rule of law, and that therefore the complainant must establish her doubtful legal right at law before the same can be enforced by an injunction in this court.</p>

On order to show canse why an injunction should not issue and a receiver be appointed of the assets of the defendant corporation the Old Dominion Copper Mining and Smelting Company.

<p>1. Any jurisdiction of the court of chancery, otherwise than under P. L. of 1897 p. 190, to permit the use of trust funds for the erection of a building on lands also held in trust by the trustee, cannot be exercised on a petition, but only on a bill.</p> <p>2. A trustee should not be permitted to use trust funds, pursuant to the above-cited statute, to erect a building on lands held by him in trust, where the proof leaves it doubtful whether it will be beneficial to the trust.</p>

<p>On petition for leave to use trust moneys to erect buildings.</p>

<p>On motion to open decree of divorce a vinculo.</p>

<p>On application for receiver.</p>

<p>On bill for relief.</p>

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

<p>1. To justify a bill in equity for an accounting, the issues must be so numerous, so distinct, and the evidence to sustain them so variant, technical and voluminous, that a jury is incompetent to deal intelligently with them and come to a just conclusion.</p> <p>2. A bill to redeem 'a pledge cannot be maintained without some -additional ground of equitable jurisdiction.</p> <p>3. Discovery in equity is given only as incidental to other relief sought, as to which complainant has no adequate remedy at law.</p>

<p>On rule to show cause why a receiver should not be appointed.</p>

<p>A court of equity will not decree specific performance nor order an accounting which will serve only to aid the complainants to secure the proceeds of Sunday racing, an unlawful business, prohibited by law.</p>

<p>On bill to foreclose.</p>

<p>1. A wife is not bound to return to tlio home of her husband where he is living in open adultery with another woman.</p> <p>2. In the absence of proof that under the laws of a sister state alimony can be given in a gross sum, the courts of this state may apply the law prevailing here in interpreting a decree, of a court of such sister state, which simply allows a certain sum for alimony, and hold that such sum is an installment on account of alimony, and that the decree does not adjudge the future rights of the parties.</p>

<p>The evidence in a divorce suit held to show both parties guilty of adultery, and that the petitioner connived at defendant’s adultery.</p>

<p>II. was the physician, confidential friend and adviser of W., from whom he received $15,'000, to be held in trust for her benefit. He used some of the money to pay bills for her; some he appropriated to his own use, and some he invested in a farm, and in machinery, stock and implements for operating it, taking’ title to the farm in the name of W. H. conducted the farm as if it were his own, operating it at a loss. W. also mortgaged the farm for $2,200, H. receiving the proceeds. Finally W. took possession of the farm and sold the stock, implements and machinery, and seeks an accounting from H. — Seld, that 1-1. is chargeable with the original $15,000, with interest, and the $2,200 raised on mortgage, with interest, but not with the income from the farm; and that he is entitled to credit for the cost of the farm and permanent improvements as of the time W. took possession, and for the moneys realized from the sale of the stock, machinery and implements, and also for all moneys paid to W. or for her use, not including any expenses of operating the farm.</p>

<p>1. To constitute a-fixture there must be an actual (or constructive) annexation of the chattel to the realty, with an intention of making a permanent accession to the freehold, and the application of the chattel to the use for which the realty, in connection with which it is used, is appropriated ; and in determining the question of annexation more weight is to be given to the intention of the owner than to the method adopted in making the annexation.</p> <p>2. Chandeliers used for lighting a building, though only screwed on, are sufficiently attached to the realty to become fixtures.</p> <p>8. Stage scenery, used in connection with stage fittings, which are a part of the realty, and when set up, fitting into and held in place by the stage fittings, but, when not in use kept in a storeroom in the building especially provided therefor, is constructively annexed to the realty and a part thereof. '</p> <p>4. Furniture used on a theatre stage, and in no way annexed either physically or constructively to the realty, is not a part of the realty.</p> <p>5. A portable sectional dance floor, only in place when an auditorium is being used for dancing, and immediately thereafter removed and stored, Is not a fixture.</p> <p>6. Where different persons furnish different articles for a building, any right of lien of one of them upon the article furnished by him as against a prior mortgagee and the others, is waived by his receiving a bond in payment, secured by a mortgage on such and other property, made to a trustee to secure the different bondholders.</p>

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

<p>1. The record of an assignment of a mortgage is constructive notice of its existence and contents to one who takes a subsequent mortgage on the premises, and also that the assignor has no authority to procure the cancellation of the assigned mortgage.</p> <p>2. The administratrix of a deceased assignee of a mortgage is not estopped to set up the existence of the mortgage, where the assignor obtained possession of it from her by false representations as to his right to it and purpose in obtaining it, and then caused it to be canceled of record and gave a new mortgage on the lands.</p>

<p>A firm carrying on business under the name of “Brand & Smith,” the surnames of the partners, transferred its assets and good will to a corporation. The complainant, one of the partners, began a new and similar business. — Held, that he is not entitled to have the corporation enjoined from advertising' its business under the name of “Brand & Smith,” or as the "Successors of Brand & Smith,” on the ground that the public may be deceived.</p>

<p>1. Sexual intercourse by husband and wife, after he has knowledge- and means of proving her adultery, is condonation.</p> <p>2. Forgiveness is not an essential element in condonation.</p>

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

<p>1. A surrogate may decline to receive a will propounded for probate if not accompanied with a written application, such as is required by rule 1 of the orphans court rules. But if he has received it, and finds a caveat filed, he is bound to issue citations, and the orphans court .will acquire jurisdiction to act thereon.</p> <p>2. The “persons concerned,” who are by the statute required to be cited, include not only those benefited by the will and interested to support its probate, but also heirs-at-law and next of kin of the alleged testator.</p> <p>3. An heir-at-law and next of kin who was not cited and did not know of or appear in the contest in the orphans court, is a person aggrieved by a decree admitting a will to probate, and may appeal therefrom to this court.</p>

<p>On appeal from the Cape May orphans court from an order setting aside probate of will.</p>

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

<p>A married woman who died leaving a husband and children surviving her, by her will devised and bequeathed to a daughter all the residue and remainder of her estate absolutely, “subject to the legal rights of my husband * * * should he survive me.” — Held, as to the residue of the personal property of testatrix, that her intent was to give the same to the daughter absolutely only in case her husband had predeceased her, and that as the husband survived her, and was entitled jure mariti to his. wife’s personalty, the bequest failed, and testatrix died intestate thereof.</p>

<p>On appeal from the orphans eouri of Hudson county.</p>

<p>On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in 65 N. J. Eq. (20 Dick.) 498.</p>

<p>Testator, by his will, bequeathed to his grandson $50,000, and directed the legacy to be paid within a year after his death, “unless I shall advance him that sum during my lifetime and take his notes therefor, in which case I direct my executor to deliver over to him any notes or obligations I may hold against him to that amount.” Subsequent to the making of the will testator advanced to his grandson, from time to time, sums of money aggregating much more than the amount of the legacy, and took his notes for the various advances. A certain part of the moneys advanced was afterwards repaid by the grandson, and the testator-then delivered up to him all of his notes in satisfaction or surrender of the obligations which they evidenced. — Held, that by the terms of the bequest the right of the grandson to be paid the legacy was made to depend, not upon the subsequent making of loans to him by the testator and the taking of his notes therefor, but upon the existence of the debt at the testator’s death evidenced by the fact that the notes still remained in his possession.</p>

<p>On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in 65 N. J. Eq. (20 Dick.) 610.</p>

<p>1. Under an involuntary assignment the receiver or assignee may set aside a chattel mortgage for fraud, or for the neglect of the mortgagee to have it recorded according to the requirement of the statute.</p> <p>2. By virtue of the ninth section of the Chattel Mortgage act of May 2d, 1885, the mortgagee will have priority over all creditors of the mortgagor, where the debt or obligation is incurred after the mortgage is recorded, although it is not recorded immediately.</p> <p>3. Where there is a voluntary assignment by the mortgagor for the equal benefit of creditors the assignee may set aside the chattel mortgage given by the mortgagor, when it is fraudulent, to the ext.ent that the property is needed for the payment of debts, but he cannot intervene to set it aside when it is given in good faith for value, because the mortgagee has failed to record it as the statute requires.</p> <p>4. Creditors of the mortgagor who have claims in their own right before the chattel mortgage is recorded, or who acquire by assignment claims which accrued before the mortgage is recorded, will be entitled to priority over the mortgagee, and may on recovery of judgment assert their rights, notwithstanding a voluntary assignment by the mortgagor for the equal benefit of creditors.</p>

<p>1. Under clause e in section 70 of the Federal Bankrupt act, trustees in bankruptcy may avoid a mortgage made by a New Jersey corporation which the creditors of the corporation might avoid under section 64 of the New Jersey Corporation act. P. L. of 1896 p. 277.</p> <p>2. Under section 64 of the New Jersey Corporation act, insolvency denotes a general inability to meet pecuniary liabilities as they mature, by means of either available assets or an honest use of credit.</p> <p>8. A mortgage given merely to secure antecedent debts is not given “for value,” within the meaning of clause e in section 70 of the Federal Bankrupt act, or for “a valuable consideration,” within the meaning of section 64 of the New Jersey Corporation act.</p>

<p>On appeal from a decree of tire court of chancer}'' advised by Vice-Chancellor Reed, whose conclusions are reported in 6k N. J. Eq. (19 Diclc.) 57 £.</p>

£8k- The controversy in this case is over a covenant made by Richard F. Loper with Atlantic City, in a writing under seal, called the boardwalk deed. This writing, which was dated April 30th, 1896, and was executed by Loper on May 9th, 1896, granted to Atlantic City the right to maintain a street over a strip of land along the Atlantic ocean, above high water.

<p>On appeal from the decree advised by Vice-Chancellor Gre]r, whose conclusions are reported ante p. SIS.</p>

<p>On petition for reargument.</p>

J. Eq. (20¡ Diclc.) 161. Four persons, to wit, the complainant, the defendant, John L. Young and Stewart R. McShea, were the owners, as tenants in common, in equal shares of a tract of land in Atlantic City, upon which there was a mortgage of $43,000.

<p>A signed but undelivered lease may be given in evidence to prove an agreement upon the details of a lease, pursuant to one of the terms of a previously signed memorandum in writing of an oral agreement for a lease; and if said previous memorandum of agreement for a lease and the signed but undelivered lease, taken together, show a completed agreement upon the terms of a lease, the statute of frauds is satisfied, and specific performance may be decreed.</p>

<p>A valid delivery of a deed conveying land is not shown when it appears that it was the intention of the grantor that such delivery should relate to the date of his death.</p>

<p>1. At a judicial sale the rule of caveat emptor applies, and the purchaser buys only such estate or interest as the debtor has.</p> <p>' 2. A sheriff's deed passes the same title which a deed of bargain and sale, executed by the judgment debtor, would pass.</p> <p>3. A person claiming to have an interest in land being sold at a judicial sale, whether such person be a judgment creditor or otherwise, may, at such sale, state facts as to the property about to be sold, when such facts relate to the title, possession or the alleged right of possession thereof. Such statements cannot be deemed inequitable, oppressive or a slander of the title, but a failure to so do will not work an estoppel of the assertion of any right or remedy which such judgment creditor or other person in interest may have in such land.</p> <p>4. But it ife inequitable for a judgment creditor, or other party in interest in the land sold, to not only state facts, but to express an opinion as to the title, which injures and prejudices the sale of the interest which the debtor has or which will pass under the conveyance by the sheriff or other officer.</p> <p>5. It is inequitable for a judgment creditor, while using the process of a court of law to collect its debt, to avail itself of the occasion of the sale to start a question of title,' to cheapen what it irroposes to sell, and a court of equity will enjoin it from pursuing the legal process until such question of title is settled.</p>

<p>1. A corporation, the name of which has been selected with the intent to profit by the trade reputation of another by means of the similarity of names, is not entitled to use its corporate name in a business in which the use thereof is likely to lead purchasers to buy its goods for the goods of those by whose reputation it seeks to profit.</p> <p>2. Where a trade name is unlawfully used for the purpose of profiting by the trade reputation of another, the injured party is entitled to relief although he may not have an exclusive right to the use of the name.</p> <p>3. The fact that a person has acquired some skill and experience in a business which he has conducted for the purpose and with the intent of profiting unlawfully by the trade reputation of another, does not, as against the injured party, entitle a corporation in which he is interested^ to adopt and use that name in the same business, even though it may be accompanied with additions sufficient to prevent a purchaser from mistaking the goods of one for the goods of the other.</p>

<p>On appeal from chancery.</p> <p>This was a suit in equity brought by Alexander MaeKenzie, Hugh E. MaeKenzie, Edward E. MaeKenzie, James S. MacKenzis, Grace Ewing, Jessie Alexander, Isabella Craig, Eebecca E. Yanderbeck, Margaret E. Elkin, Eebecca M. Laidlaw and Catherine M. Pierson, devisees and heirs-at-law of George E. MaeKenzie, deceased, and Alexander MaeKenzie, Hugh E. MacIvenzie, Peter Alexander and Charles Elkin, executors and trustees named in the will of the said George E. MaeKenzie, deceased, against The Trustees of the Presbytery of Jei'sey City.</p> <p>The bill of complaint alleged that by a deed of the 6th day of May, A. d. 1885 (afterwards delivered, acknowledged and recorded), George E. MaeKenzie and Eebecca, his wife, for the consideration of one dollar, bargained and sold and conveyed unto the Trustees of the Scotch Presbyterian Church of Jersey City (a corporation under the Eeligious Societies Act), and their successors and assigns, with unlimited covenants for title, certain lands and tenements situate on the northerly side of Mercer street, Jersey City, New Jersey, distinguished as lots 22, 23 and 24, in block 65 on the map of the farm of Cornelius Yan Yorst, deceased, with the appurtenances thereunto belonging,</p> <p>“to have and to hold all and singular the above-mentioned and described premises, together with the appurtenances, unto the said party of the second part, its successors and assigns, to its own proper use, benefit’and behoof forever, on condition that the said party of the second part; the religious society now worshiping in the church erected upon said premises shall be called, and always continue to be called, the Scotch Presbyterian Church of Jersey City, and the corporate name to be continued as it now legally is; also, that the said corporation shall keep at all times said church and premises in proper repair ; also, that no instrumental music shall at any time be used in the worship of the church; and, further, should it become actually necessary' to sell said premises at any time that the proceeds of such sale shall be devoted to the same religious purpose by the same organization and upon the like conditions as herein stated ; and oil further condition that the church organization shall be under the care of the I’resbytery of Jersey City, and its legitimate Presbyterian successors, and, if the above conditions are not complied with on the part of the party of the second part hereto, the said premises are to vest in the Presbytery of Jersey City, and its legitimate Presbyterian successors, for Presbyterian religious purposes, upon the same conditions aforesaid; and on further condition that there shall be no lien upon the said premises, at any time, for minister’s salary or church expenses, or any repairs upon the property.”</p> <p>That at the time of the delivery of the said deed the said George R. MacKenzie addressed a letter to the said Trustees of the Scotch Presbyterian Church of Jersey City, in which he laid special emphasis upon the condition relating to the continuance of the name, the Scotch Presbyterian Church, and the condition relating to the non-use of instrumental music in worship; that on the delivery of the said deed, about the 22d day of May, A. d. 1885, the said The Trustees of the. Scotch Presbyterian Church of Jersey City entered into'possession of the said church and lands, and observed the conditions or terms of the said deed; that by a deed of the 11th day of May, a. d. 1887 (after-wards delivered, acknowledged and recorded), the said George R. MacKenzie and Rebecca, his wife, bargained and sold and conveyed unto the said Trustees of the Scotch 'Presbyterian Church of Jersey City, and their successors and assigns, with covenants for title, a certain parcel of land situate on the northerly side of Mercer street, Jersey City, New Jersej', distinguished as lot 25 in block 65 on the map of the farm of Cornelius Van Vorst, deceased, habendum et tenendum, -to them and their successors and assigns, as above set forth, and</p> <p>“on further condition that the same shall be maintained and occupied by the party of the second part as a manse or dwelling for its minister, or pastor</p> <p>that the said George R. MacKenzie died on or about the 6th day of January, a. d. 1892, leaving- a will (afterwards proved in Sullivan county, New York), whereby he gave a part of his estate -to his executors upon certain trusts, not yet fully performed, and the residue of his estate to the parties complainant; that the said Trustees of the Scotch Presbyterian Church of Jersey City used tlie last-mentioned parcel of land, as and for a manse, until the early part of the year a. d. 1900, n lien they ceased to use either the church or the manse, and by deeds of bargain and sale of the 26tli day of April, A. d. 1900, conveyed io The Trustees of the Presbytery of Jersey City (a body corporate, and their successors and assigns, 'in fee, the clmrc-h and three lots of land, and the manse and lot of land as above described; that on the 28th day of November, a. d. 1900, the said The Trustees of the Presbytery of Jersey City entered into a contract, in writing, with the Trustees of the Evangelical Ijuthcran Church of the Holy Trinity of Jersey .City (a corporation under ihe Beligious Societies Act), for the sale to them, in fee-simple, of the said church, manse, lands and tenements, at or for the price of $23,000; that when the parties complainant, first learned of the making of the two deeds of bargain and sale lastly mentioned, and of the said executory contract for sale, they inquired as to the proposed use of the proceeds, and learned that it was the intention of The Trustees of the Presbytery of Jersey City not to recognize the conditions of the two deeds made by the said George E. MacICenzie, hut to use the proceeds for the benefit of churches connected with the Presbytery of Jersey City, in which instrumental music is used in public worship, and that the parties complainant protested against such use of the proceeds as distinctly prohibited by the conditions of the two deeds made by the said George E. Maclvenzie; that on the 4th day of February, a. d. 19-01, the said The Trustees of the Presbytery of Jersey City (see post) adopted certain resolutions, to wit:</p> <p>“Resolved, That tlie fund realized by tlie sale of the property of the late Scotch Presbyterian Church of Jersey City shall be applied — fti'st, to the payment of the entire bonded and floating indebtedness of the Second Presbyterian Church of Jersey City, to an amount not exceeding $9,200, and tlie remainder to the reduction of the debts of the Westminster and Claremont Presbyterian churches of the same place, in proportion to their amount, i. a., to the Westminster church the sum of '$10,553.40, more or less, and to- the Claremont church the sum of $1,746.00, more or less.</p> <p>“Resolved, also, That these several churches shall give bond to ‘The Trustees of the Presbytery of Jersey City,’ payable upon demand, but without interest, secured by mortgage upon their church property, for the amount of the respective sums received.</p> <p>“Resolved, also, That this disposition of the fund is made with the conviction that the most necessitous Presbyterian work in Jersey City is now, and for the future will be, in the down-town section, and that-Presbytery would impress upon the Westminster and Claremont churches the moral duty, consistently with their ability, to assist in sustaining the Second Church in coming years, if in the judgment of Presbytery it shall be necessary</p> <p>tliat the churches referred to in the resolutions of the presbyter}’ are Presbyterian churches in which worship is conducted, not as prescribed in the conditions of the two deeds made by the said George R. MacKenzie, but with the use of instrumental music, and that the expressed purpose of the presbytery, to use the proceeds of the said lands in the payment of the debts of those churches is in defiance' of the conditions of the said deeds; that the act of the said George R. MacKenzie in making the conveyance of the said lands to the said Trustees of the Scotch Presbyterian Church of Jersey City was the creation of a charitable use by gift, and that he had a right to impose such conditions on the gift as he deemed proper, and to provide against a diversion of the estate from the use created; and that the said George R. MacKenzie had, in his lifetime, a standing in court to restrain such diversion, and that the parties complainant have such a standing since his death. The prayer of the bill was that The Trustees of the Presbytery of Jersey City might be restrained, by decree, from making use of the proceeds of the sale to-the Trustees of the Evangelical Lutheran Church of the Holy Trinity of Jersey City, of the property conveyed by the said George R. MacKenzie and his wife to the Trustees of the Scotch Presbyterian Church of Jersey City in the payment of tire debts of the Second Presbyterian Church of Jersey City and the Westminster and Claremont churches of Jersey City, and might be restrained from, in any other way, diverting such proceeds from the uses to' which they were limited in the conditions of the said deeds made by the said George R. MacKenzie, and for general relief. Process of subpoena and injunction were also prayed in the usual form.</p> <p>The answer of The Trustees of the Presbytery of Jersey City (a body corporate) set forth the events which led up to the two deeds of bargain and sale made by tire Trustees of the Scotch Presbyterian Church of Jersey City to The Trustees of the Presbytery of Jersey City in particular — a communication addressed by or on behalf of the congregation of the Scotch church to the trustees of the presbytery in these terms:</p> <p>“At the congregational meeting of the Scotch Presbyterian Church of Jersey City, held on January 31st, a. d. 1900, it was voted to convey to the Presbytery of Jersey City our church property, consisting of the church and manse on Mercer street, and this action has been further ratified by a unanimous vote at a second congregational meeting called especially for that purpose. The necessary deeds have been prepared and the transfer will be completed as soon as you have authority to receive them. * * * In making this transfer, we must inform you that there are certain conditions upon which the Scotch Presbyterian Church holds the property, restricting us in the manner of our use of it. In turning the property over to the Presbytery of Jersey City, we are acting in exact accord with these conditions, the deeds under which we hol'd stating that, should the church fail to comply with the conditions, the property is to be vested iu the Presbytery. Tie have aimed faithfully to live up to the conditions, as we have understood them, but at present our existence as a church seems to be in the balance, and we request the Presbytery through you, its trustees, to accept the property</p> <p>also the incorporation of, the Trustees of the Evangelical Lutheran Church of the Hofy Trinity of Jersey City under the Eeligions Societies Act, the character of the congregation of said church, as one holding Calvinistic doctrines, in form and substance the same as those held by the Presbyterian Church in the United States of America, with which the Scotch Presbyterian Church was connected, and the contract of sale entered into between the party defendant and the trustees of the Holy Trinity Church; also the adoption of the resolutions of February 4th, a. d. 1901, not by the party defendant hut by the Presbytery of Jersey City, an ecclesiastical body in connection with the Presbyterian Church in the Hnited States of America, and the intention of the party defendant, upon receipt of the purchase-money of the said church, manse, lands and tenements, to dispose of the same in accordance with the directions of the Presbytery of Jersey City, denying, nevertheless, an intent not to recognize the conditions of the two deeds made by the said George R. MacKenzie, yet admitting that the three churches mentioned in the resolutions of the presbytery were churches which have heretofore used instrumental music in their worship. The answer denied that the parties complainant had any right or standing in court entitling them to prosecute their suit; that the parties complainant were entitled to relief by injunction or otherwise; and that the purposed use of the proceeds of the Scotch Church was unlawful or t breach of any trust. The answer substantially admitted the other allegata of the bill.</p> <p>The cause came on for a hearing upon the bill and answer and the proofs (which were chiefly documentary exhibits) before Vice-Chancellor Pitney, who, being of opinion that the parties complainant have a standing in court as the children and heirs-at-law of the said George R. MacKenzie, deceased, and that the use proposed to be made of the fund obtained from the sale of the Scotch Presbyterian Church of Jersey Cit}r would be a breach of the limitations imposed upon said fund by the donor thereof, and that such use should be restrained, advised a decree almost exactly in the language of the prayer for relief. Prom the final decree, pronounced-upon such advice and from the whole thereof, this appeal is taken.</p>

Wolfinger to enforce the specific performance of a contract which, it is alleged, one William McFarland made in his lifetime with the- complainant, to convey a foundry property and its equipment, situate in Trenton, New Jersey, to the complainant, together with an accounting for the profits of the foundry business since the death of McFarland.

She is now nine years old and sickly. Her mother died about three months after she was born, and her father committed her to the custody of her mother’s parents, with whom she has remained ever since. He seems to have manifested but little interest in his only child’s welfare until within the past three years, and although the grandparents were poor, he contributed nothing to her support.

The facts are, briefly, these: The complainant was for fifteen years in the employ of the Singer Sewing Machine Company, as a laborer. He is seventy-one years of age, and owing to a physical infirmity became incapacitated for work. Some of his friends suggested that he apply for admission to the home of the grand lodge, in Burlington. He had been a member of the Herman lodge, 'a subordinate society, for thirty years. Accordingly, he made application for admission.

It is admitted that the mortgage was duly executed, and that by its terms the amount of the principal sum, with interest, is now due.

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

<p>On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in S3- N. J. Eq. (IS Licit.) >68%..</p>

<p>On appeal of Mary J. Bauer from a decree advised by YiceChancellor Pitney, whose opinion is reported in 65 N. J. Bq. {20 Bide.) 60.</p>

<p>On appeal from a decree sustaining demurrer to bill of complaint advised by Vice-Chancellor Emery, whose opinion is reported in'65 N. J. Fq. (20 Diclc.) 1061</p>

<p>On appeal of Joseph Thompson, purchaser at receiver’s sale.</p>

<p>On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in 65 N. J. Eq. (20 Bide.) 526.</p>

<p>On appeal of Nellie McCrea, from a decree advised by Vice-Chancellor Pitney.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported ante p. 136.</p>

<p>On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in '66 N. J. Eq. {21 Bide.) 209.</p>