Volume 68 — New Jersey Equity Reports

<p>On petition of tbe Atlantic City Turn Verein.</p>

<p>1. Where a husband and wife had been living apart by mutual consent, there must be satisfactory proof that the consent thereto was withdrawn and the marital duty was demanded, to turn such separate living into willful desertion.</p> <p>2. The letters of the wife, in this case, do not sufficiently corroborate the testimony of the petitioner to establish willful desertion.</p>

<p>On exceptions to master’s report.</p>

On application for moneys in court derived from the sale of lands tinder the provisions of the act entitled “An act to authorize the sale of lands limited over to infants or in contingency in cases when such sale would be beneficial,”- approved March 20th, 1857.

<p>Under the Descent act, providing- that the grantee or devisee of an estate tail shall have but a life estate therein, and that his widow shall have dower therein as if the grantee had died seized thereof in fee-simple, the widow is entitled to dower in a fund arising from the sale of the estate, thoug-h a previous wife of the life tenant had joined with him in a conveyance thereof in fee, with full covenants, it appearing that whatever estate was thus conveyed was subsequently reeonveyed to the life tenant.</p>

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

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

<p>On bill for construction of wills and direction, &c.</p>

<p>■ 1. A devise of “the farm which I own at Wortendyke, and known as ¡he David D. A. Wortendyke farm,” applied to three tracts of land acquired by David D. A. Wortendyke and used by him together as a farm, and afterward acquired by testator and used by him as a farm.</p> <p>2. Proof that the testator usually designated the farm as the “Wortendyke farm,” or as the “David D. A. Wortendyke farm,” was competent and admissible as to testator’s intent.</p> <p>3. The erection of a dwelling-house upon a portion of the farm not separated from the remainder by fences or designated boundaries, and the letting of such house, with the land on which it was erected and some adjoining land to a tenant, did not sever such house and land from the farm so as t.o render the devise inapplicable thereto.</p>

<p>Under the act for quieting titles to land, requiring an issue at law to be directed on application of either party, and declaring that the court of chancery shall be bound by the result of such issue, but that it may, for sufficient reasons, order a new trial thereof, application for a new trial of such an issue should be acted on according- to the practice in respect to new trials of actions at law upon contested titles.</p>

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

<p>1. A certificate of stock in a building association recited that the holder was entitled to interest on the amount paid for the stock, and provided that the certificate might be surrendered by the holder when he should receive the full amount thereof, with interest. The association assigned to the holder a mortgage as collateral. — Held, that the holder, as against other stockholders, was entitled to treat the certificate as a promise on the part of the association to pay the amount thereof, and to hold the mortgage as security therefor.</p> <p>2. The fact that the holder of a certificate of stock in a building association secured by a mortgage assigned to him as collateral made a claim on the certificate in insolvency proceedings against the association, did not prevent him from holding the mortgage as collateral.</p>

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

<p>1. A court of equity has jurisdiction to enforce .a contract for the sale of a bond and mortgage, on bill filed by the holder.</p> <p>2. Complainant advanced money to a corporation and received a mortgage therefor. Defendant executed an agreement to complainant, stipulating that she would purchase the mortgage at its maturity, provided complainant would then tender an assignment thereof to defendant, or notify defendant of the desire to assign; and the agreement closed with the recital that, for the purpose of inducing complainant to loan the money and take this guarantee, defendant stated that she was worth $10,000 in real estate. — Held, on defendant’s failure to purchase, that if defendant be regarded as surety it was not necessary that complainant first resort to the mortgage, but he might maintain a bill for specific enforcement of the contract of sale of the mortgage.</p> <p>3. The transactions were in New York, and the property was located there, and defendant’s contract was to be delivered there, and was not enforceable until delivered. — Held, that though defendant, a married woman, resided in New Jersey, it was a New York contract and subject to the New York statute permitting married women to, contract as though single, and making her separate estate liable for such contracts.</p> <p>4. Such contract by a married woman, being valid in New York, where made, a court of chancery of New Jersey will not refuse to enforce it.</p> <p>5. As complainant’s right to payment became vested on the day the contract matured, and she frequently made demand, and there was no change in the character or quality of the subject-matter, her suit for performance was not barred by nearly four years’ delay.</p>

On petition by defendant, after decree, execution and advertisement, to stay sale and open decree. Heard on ex parte affidavits.

On petition, answers and proofs,- taken in open court. The object of the petition is to procure the payment of certain moneys in the hands of the receiver of an estate.

On final hearing on bill, answer and proofs. The. bill in this canse was filed by Mary E. Throckmorton, who, having died pending suit, her executor, Aaron E. Johnston, was substituted as complainant and the suit proceeded in his name.' The cause first came before the court for judicial consideration upon a demurrer to the bill. The demurrer was overruled, as reported in Throckmorton v. O’Reilly, 66 Atl. Rep. 66.

On petition for divorce. Decree (on failure to answer) for leave to make proof before special master, and report of master refusing to advise a decree for petitioner, and exceptions thereto by petitioner.

<p>A corporation executed a mortgage to H. on all its property, of every nature and description, whether then owned or thereafter acquired by it. Thereafter it orally bought a lot of M., moved a house belonging to it thereon, put a cellar under it, and placed it in condition for occupation.— Held, that it thereby acquired the equitable title to the lot, to which the lien of the mortgage attached, subject to the lien of M. for the purchase-money, but not subject to any lien for services rendered by him to the corporation.</p>

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

<p>1. Where a mortgage is given by a member to a building association, the insolvency of the association works a rescission of the contract, and the sum borrowed becomes immediately due and payable, regardless of the terms for payment fixed by the contract.</p> <p>2. On the foreclosure of a mortgage given by a member to a building-association because of the latter’s insolvency, the mortgagor is entitled to have the amount of premiums paid by him deducted from the amount due on the mortgage. Weir v. Granite State Provident Association, 56 B. J. Bq. (11 Dick.) SSI/, followed.</p>

<p>1. Until a claim, on which, suit at law is pending and which is disputed, is established against an estate, a court of equity will not enforce the claim against a fund alleged to be held by the executrix in trust for the payment of debts.</p> <p>2. A decree of a surrogate barring claims against a decedent’s estate cannot be attacked collaterally.</p> <p>3. A decree of a surrogate barring claims against decedent’s estate having been pleaded in defence of an action at law on a claim against the estate, the creditor may maintain a suit in equity to restrain setting up or proving such defence by showing that the claim had been presented and the verification waived before the decree was made.</p>

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

Heard on bill, answer, replication and proofs. The bill was filed by the widow of Albert Eoll, deceased, against his executors and also against the devisees and legatees under his will, other than the complainant, for the payment of a legacy bequeathed to complainant and to compel the sale of the real estate for the payment of the .same. The facts material to the decision of the question are as follows: . .

Heard on bill, answer and cross-bill, replication and proofs. Complainants are executors of the will of Oliver S. Carter, a resident of the county of Essex, who died-June 28 th, 1901.

On motion to strike out special appearance and plea to jurisdiction filed by the United Gas Improvement Company, one of the defendants.

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

<p>1. Parol evidence which tends to vary the description of a lot in a lease is inadmissible in locating the boundaries.</p> <p>2. Where a contract uncertain in its terms has been acted on and partly performed, the court, in order to relieve the objection of uncertainty, will, for the construction of the instrument, have regard in some cases to the use and course of dealing of the parties, to the surrounding circumstances, and to their conduct between the making of the agreement and the commencement of the suit.-</p> <p>3. The lease of a lot contained an option to complainant to purchase. The boundary line on one side of the lot was irregular, and from the description in the instrument it was uncertain hoW much of the lot was included in the option. Complainant exercised the’option and claimed the entire lot and sought specific performance. ' The evidence showed that if there was any mistake in the description it was made by the defendant, and that the complainant understood the entire lot was included, and, with such understanding, arranged the buildings on the lot. — Held, that the conveyance of the entire lot should be decreed.</p>

<p>1. A lease to a manufacturing corporation gave the privilege of purchasing the land leased, at the expiration of the term. The president was authorized to obtain a correction in the description of the premises. He did, in fact, obtain a new lease thereof, at the same rent for the same term, but the lease omitted the option given to purchase. — Held, (1) that the subsequent user of the property by the company and the payment of rent did not show notice to the directors of the contents of the second lease or acquiescence in its provisions; (2) that even if ratification by acquiescence were to be presumed, the acceptance of the second lease was not a surrender in law of the first lease, or of the term of years thereby created.</p> <p>2. The lease gave to the lessee the privilege of purchasing at a fair valuation by appraisement. — Held, that there was sufficient certainty as to price to warrant a decree for specific performance.</p>

On bill, answer and proofs. The complainant in this bill was originally incorporated by the name of the Monmonth Traction Company under the statute known as the Trolley act, approved March 14th, 1893. In October, 1899, the name of the complainant was, by certificate filed in the secretary of state’s office, changed from the Monmouth Traction Company to the Camden and Trenton Railway Company. The complainant company has constructed its electric railway from Camden to Trenton.

Ou bill, answer and proofs. The complainant is the owner of a house and lot on the north side of Stevens street, known as No. 579 Stevens street, in the city of Camden. The defendant is the owner of the adjoining house, on the same street, known as No. 577 Stevens street.

On bill, answer and proofs. The bill is filed to specifically enforce a parol contract to devise a parcel of land situate in the village of Closter, Bergen count]’-, New Jersey. The complainant, on February 21st, 1875, conveyed by an ordinary warranty deed the land in question to her brother, John B. Kip, now deceased.

<p>1. Subcontractors, such as plumbers, plasterers and painters, who supply the material and put it into the building, are not materialmen within the meaning of section 3 of the Mechanics’ Bien law, and are not protected thereby.</p> <p>2. A stop notice must show a demand upon the contractor for payment as well as his refusal to pay.</p> <p>3. A notice of a materialman, stating that a certain amount of money is due to the undersigned “for work done and materials furnished,” is fatally defective, because a part of the debt exhibited in the notice is due for labor, for which only a “journeyman or laborer employed” by the contractor can obtain a lien through a stop notice, while a materialman’s notice must exhibit a debt due only for “materials used in the erection” of the building.</p>

<p>1. A tunnel company, in the course of condemnation proceedings to acquire a right of way under the property of a railway company, executed a covenant that it would not at any time thereafter institute proceedings to condemn any right or interest whatever under any lands belonging to such railroad company lying between certain boundaries where the tunnel was located. — Held, that if such covenant was valid it could not be enforced in equity by an injunction restraining a successor of the tunnel company from acquiring a further right of way under such property, but the parties should be left to their remedies at law.</p> <p>2. The covenant was not one running with the land, and therefore did not pass to defendant, who acquired property of the tunnel company under foreclosure of a mortgage.</p> <p>3. If the covenant be treated as creating an easement, it would not entitle the. complainant to an injunction.</p> <p>4. Such covenant would not preclude another corporation from condemning a right of way through the complainant’s property in another</p> <p>»direction, and thereby deriving benefit from a prior construction by the tunnel company, though such corporation was on friendly terms with the tunnel company and the stockholders in the tunnel company were also stockholders in the new corporation.</p>

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

<p>Bill for specific performance. Pleas.</p>

On application for allowance of compensation to receivers of an insolvent corporation and. to their counsel on settlement of receivers’ account.

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

<p>On motion for a preliminary injunction to restrain an action at law.</p>

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

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

<p>Where a contract for the sale of land called for a perfect title, and, in a suit for specific performance by the vendor, it appeared that his grantor’s deed was executed as if she were unmarried, specific performance would not be decreed, though it was shown that her husband had been absent seven years at the date of the deed, whereby a presumption of death arose; it also appearing that defendant’s grantor was eighty-six years of age, and that her children possibly controlled, to a large extent, the evidence on which the rebuttable presumption was founded.</p>

<p>The complainant and defendant were formally married, and entered into matrimonial relations in good faith, believing- that the complainant was a widow, whereas she had a former husband living; but, in order to place the legality of their relations beyond question, the complainant procured a divorce from her lawful husband, after which the defendant, in the presence of witnesses, assured complainant that she was his legal wife, and that no further ceremony was necessary, and thereby induced complainant, in reliance upon such representations, to remain with him, cohabiting- with him as his wife for over twenty years. — Held, that the relation of husband and wife between them began when the decree of divorce was obtained, and that the defendant is estopped to deny that he had intended to enter into marriage relations with the complainant.</p>

<p>Land was conveyed to persons named as “trustees and their successors iu office forever,” in trust to erect a house of worship for a specified church organization. — Held, that such organization, as a corporate body, had not such title to the land, without any conveyance to it from such trustees or an adverse holding, as equity would require a vendee to accept.</p>

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

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

<p>An action at law, by the owner of an unimproved lot, for damages resulting from the changing of the grade of a street upon which the land abuts, the change being made by a railroad company in improving its property, will not be enjoined, upon the ground that no liability arises unless the land has buildings thereon, this, if true, being a perfect defence at law.</p>

<p>1. Where the president and treasurer of a corporation paid to themselves claims due from it within ten days of its insolvency, they may be charged with knowledge therebf, and required to refund.</p> <p>2, In a suit by the receiver of an insolvent corporation to recover payments, made within ten days of the appointment of the receiver, to a creditor who was not an officer, evidence held to show that the creditor, at the time of receiving payment, had knowledge of the insolvency of thé corporation, requiring him to refund the same.</p>

<p>Where a mortgage provided that certain, judgments against the mortgagor should have priority over the mortgage, an indorsement on the margin of the mortgage, reciting that the mortgage is given to secure so much of the purchase-money,' is not inconsistent with the agreement for priority of the judgments.</p>

<p>1. In an action against the directors of a corporation to enforce a liability, under the Corporation act, for the withdrawing a part of its capital stock, it appeared that the stock was transferred to a trust company, under a syndicate agreement requiring the written consent of the syndicate managers to accept the stock of the constituent corporations for exchange for the stock of a proposed consolidated company. — Held, that the issue of the proposed consolidated company’s stock to a constituent corporation for stock deposited within the knowledge of the syndicate managers, without objection by them, was a waiver of their formal written consent, and hence defendants could take no advantage of the failure of the managers to give their written consent.</p> <p>2. In such action a judgment obtained against the corporation, of which defendant was director, is not conclusive against the defendant as to the debt sued on, where it was obtained in another jurisdiction, and the only plea interposed by the corporation was one challenging the jurisdiction of the court.</p> <p>3. When a promoter induces subscriptions to the stock of a corporation on the promise that, in consideration of stock to be retained by him as a part of the plan, he will furnish certain subscriptions for the benefit of the subscribers, the promise is a p>art of the consideration of the contract of subscription, and hence a default on the part of the promoter in that respect vitiates the contract.</p> <p>4. A provision in a certificate of incorporation that any resolution, in writing, signed by all the members of the board of directors, shall constitute action by the board, with the same force and effect as if the same had been duly passed by the same vote at a duly called meeting of the board, is not authorized by the General Corporation act.</p>

<p>Where testatrix, knowing that her son was engaged to be married to M., and that the marriage had not been celebrated, devised to her “daughter, M., wife” of her son J., all of her real estate during the lifetime of the daughter, and after her decease to the issue of the marriage, but at the death of the testatrix the marriage had not taken place, the devise was void for want of a person in being answering the description of the devisee.</p>

<p>1. Where a corporation had power to purchase its own stock, and to pay therefor with its bonds, and bonds payable to bearer were so issued, the corporation was estopped to deny their validity, as against innocent purchasers for value.</p> <p>2. A holder of bonds of a corporation, taken as collateral for a preexisting debt, is a iona -fide holder for value to the same extent as though he was a purchaser for cash.</p>

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

<p>1. Directors of a corporation who participate in sales of the company’s property to themselves may be required, at the suit of stockholders, to account therefor and pay to the corporation the difference between what was paid and the cost in each instance, plus a profit to be determined by the facts in the case. No demand upon the directors need be shown if at the time of the institution of the suit the corporation is under the control of those from whom the complainant seeks recovery.</p> <p>2. In such suit the corporation is a necessary party defendant.</p> <p>3. The period of accounting is properly extended back over a period of at least six years from the time of bringing suit, that coinciding with the period for which recovery might be had in an action at law.</p>

<p>1. The objection that another suit is depending for the same matter is, in genera], taken by plea and not by motion.</p> <p>2. The complainant and defendant are tenants in common of a piece of land, and the complainant holds a mortgage on the undivided interest of the defendant. The complainant filed a bill to foreclose his mortgage, and the defendant filed a plea thereto setting up the pendency of a partition suit brought by the defendant against the complainant affecting the said premises and other lands, but not making the complainant, as mortgagee, a party. — Held, that the record does not show another suit pending for the same matter, and therefore the plea must be overruled.</p>

Heard on petition of Sanborn-Farrell Company et al., answer of Erie Railroad Company, and proofs. The main case was an action to have tlie Jarvis Terminal Cold Storage Company enjoined and a receiver appointed, under tlie Corporation act, .upon tlie ground of insolvency.

The bill in this case is filed by the board of chosen freeholders of the county of Hudson and by the boulevard commissioners of the county of Hudson against the Central Bailroad Company of New Jersey and the G-oubert Manufacturing Company.

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

<p>On motion to discharge writ of ne exeat.</p>

<p>On order to show cause for preliminary injunction to restrain a suit at law.</p>

Heard on bill, answers, replications and proofs in open court. This is a bill filed by Frederick W. Mertens, trading, &c., against Henry H. Schlemme and Johanna Schlemme, his wife.

<p>Deceased employed a scrivener to draw his will, and was directed by the scrivener to come to the house of the scrivener with two witnesses to witness its execution. Deceased called upon a friend and requested him and his son to accompany him to- the house of the scrivener to witness the execution of his will, exhibiting to them at the same time a folded paper. They immediately went with deceased to the scrivener’s house, and on the way deceased stated to them his reasons for making a will. At the house, and in the presence of the scrivener, a folded paper was produced by deceased which the witnesses believed was that previously shown to them. It was that drawn by the scrivener. Thereupon it was duly signed and witnessed. — Held, that the facts established due publication of the paper as the will of deceased.</p>

<p>1. The opinion of physicians that testatrix was incapable of making a will is not controlling on the issue of testamentary capacity, and does not preclude the court from acting on evidence satisfying it of the existence of such capacity.</p> <p>2. An executor and proponent of a will and the beneficiary thereof are competent to testify as to transactions with decedent evidencing testamentary capacity, but their interest may be considered in determining their credibility.</p> <p>3. Evidence held to show that testatrix was of sufficient capacity to make a will.</p> <p>4. The uncontradicted testimony of the beneficiary of a will that there was no attempt on her part to influence testatrix’s testamentary disposition, and that the subject of the will was not even mentioned between them, supports a finding that there was no undue influence exercised by the beneficiary over testatrix.</p> <p>5. Where, in a will contest, it was shown that contestant had so acted, in a business transaction with testatrix, as in effect to recognize her contractual capacity, and he made no attempt to deny or disprove such action, but nevertheless continued the contest, he was not entitled to counsel fees.</p>

<p>1. Opinions of expert witnesses, expressed iu answer to hypothetical questions which included statements of facts not established by evidence, must be accorded little weight where it appears that the opinions are based in whole or in part upon such facts.</p> <p>2. Evidence that a testator, who was claimed to have been incompetent to make a will, had, both before the execution of the contested paper and afterward up to his death, managed and cared' for his property, which was large,- and transacted *his own business as he had previously done, and at the making of the will had shown knowledge of his estate, recollection of relatives and those who might naturally expect his bounty, and a judgment of what he desired to do in that respect, justified the admission of the will to probate, although experts express opinions against his capacity.</p>

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

By the will of John M. Lippincott, deceased, the following-provision was made: “Fourth.

<p>1. Where deceased was shown to have been suffering from pneumonia, accompanied by delirium, for three days before and until death ensued, three days after the purported execution of a will, the burden was on the proponent, in a proceeding to probate the will, to show that it was executed while deceased was in a lucid interval with sufficient capacity to make a testamentary disposition of property.</p> <p>2. In a proceeding to probate a will, evidence held to sustain a finding that the alleged will was not executed during a lucid interval of a delirium which had developed previous to the purported execution thereof.</p>

<p>The mere fact that a testator made his mistress the chief beneficiary of his will raises no presumption that she had secured an influence over him, which she would naturally improperly exert to advance her own interest.</p>

<p>On appeal from a final decree advised by Vice-Chancellor Reed, whose opinion is reported in 66 N. J. Eq. (21 Diclc.) 9If.</p>

<p>On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in 63 N. J. Eq. {20 Dick.) 167.</p>

<p>An injury having been received by a servant of a corporation, another employe took the injured servant to a physician, and during the treatment the physician determined that the services of a dentist were necessary ; and the physician, on asking the corporation’s manager who would pay the dental bill, was referred to a casualty company which had insured the corporation against liability for accidents to its employes.' — Held, that the fact that the manager did not deny responsibility on the part of the corporation for the medical treatment rendered, and that he referred the physician to the casualty company, was not a ratification of the physician’s employment, and the corporation was not liable to him.</p>

<p>A contract between two persons that, in exchange for their joint property, one of them shall procure from a corporation of this state an original issue of stock to an amount known by all parties to be in excess of the value of the property, and shall divide the stock thus procured with the other person, is illegal, and the courts of this state will not aid in its enforcement, even, though the objectionable feature has been accomplished by the actual issue of the stock.</p>

<p>1. Administrators pendente lite may always be appointed when the appointment of an executor or a general administrator is delayed for any reason, or the validity of a will is contested. They are officers of the court, called into being to aid the court — in fact, to take the place of the court — -to conserve the estate in independent and disinterested hands pending litigation. Any party in interest may apply for their appointment, or the court may appoint upon its own motion.</p> <p>2. The rule as to the right of appeal in such cases as stated by Runyon, Ordinary, in Dietz v. Dietz, 88 N. J. Mq. {11 Stew.) If88, approved.</p>

<p>On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 64 N. J. Eq. (19 Dick.) 601.</p>

On appeal of Mary J. Lees et al. from a decree advised by Vice-Chancellor Reed, whose opinion is reported in ¡57 Atl. Rep. 7SS. This ease involves the ownership of machinery of the Philadelphia Worsted Company, an insolvent corporation of this state. The receiver makes no claim and submits himself to the judgment of the court.

<p>On appeal from a decree of the court of cliancery advised by Vice-Olianeellor Pitney, whose opinion is reported in 67 N. J. Eq. IJf'B.</p>

Sami. W. Weaver farm, containing ninety-five acres of land, more or less. This farm 1 hereby agree to lease to the said Josiah White & Son upon the following terms and conditions: Dor the first two years, viz., from October 1st, 1897, to October 1st, 1899, the rent is to be one hundred and sixty dollars per year, payable semi-annually, in advance.

I do not think that either of the parties is free from fault, and I think that this husband and this wife, and their, children, should be living under'one roof, as one family. The question submitted is whether the separation, either at the time when the husband left to go to Philadelphia or subsequently, became a desertion by the wife. In the first place, the husband left his wife under circumstances which made it entirely proper to do so.

On appeal of Abraham Sartorions et al. from an order of the court of chancery, advised by yiee-Chancellor Bergen, who filed the following opinion: Application is made to have set aside a sale of lands in the county of Monmouth, in this state, made by the sheriff of that county on the 13th day of May last, under an execution issued out of this court, as the result of proceedings to foreclose a mortgage. The undisputed facts are as follows: Albert G-.

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose-opinion is reported in ¡6$ N-. J. Fq. (17 Diclc.) 496.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 65 N. J. Fq. (20 Dick.) J/.26.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 67 N. J. Eq. 14.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Reed, whose opinion is reported in 67 N. J. Fq. 252.</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in '6S N. J. Eq. (21 Diolc.) 11.</p>

<p>A deed of gift, made by a young woman just of age to her stepmother, of whose family she had been a member since ■ infancy, will be set aside on the application of the donor when it appears that at the time of making the conveyance there existed between the parties to it a relationship of trust and confidence, in which the donee occupied the dominant position, and also that the donor made the gift without receiving independent advice as to its nature and effect.</p>

<p>On appeal from a decree in chancery advised by Vice-Chancellor Emer}r, whose opinions are reported in 66 N. J. Bq. (21 Dick.) 52, 69.</p>

Two disputes arise in reference to these terms — first, whether the defendant is entitled to insert a clause against assignment or subletting without consent; and second, whether complainant is entitled to have inserted in the lease a modification of the clause, which was, under the contract, to be inserted in the lease, relating to the sale of beer or liquors on the premises.

<p>On appeal from an order overruling a demurrer advised by Vice-Chancellor Pitney, whose opinion is reported anle p. 67.</p>

<p>In the computation of the amount payable upon a mortgage made to a building and loan association by one of its members, and which has become due by reason of the insolvency of the association, the mortgagor is entitled to have credited upon the.principal of the mortgage all sums paid by him as premiums for the loan.</p>

On appeal of David Lamar, the person in possession, against Albert G. Spalding-, petitioner, for writ of assistance. From an order of the court of chancery advised by Vice-Chancellor Stevenson, who filed the following opinion: The petition for the order for possession is, as usual, filed by the purchaser at the foreclosure sale. This pure] laser, Mr. Albert G. Spalding, in fact was a defendant in the foreclosure suit as the holder of a mortgage upon the premises in question.

of the name or word “Delsarte” as a trade mark upon shoes. Complainants are manufacturers and sellers of shoes, with a manufacturing plant in Philadelphia, and sell their product in most of the larger Eastern cities, including Boston and New York. In the latter part of 1896 they began the use of the name “Delsarte” as a trade mark for one variety of their shoes, and in 1896 about $5,000 of the total $60,000 sales were of their “Delsarte” shoes.

<p>On appeal from a decree of the court of chancery advised by Yice-Chancellor Reed, whose opinion is reported in 66 N. J. Bq. {20 Dick.) 51%:</p>

<p>On. appeal from a decree in chancery.</p> <p> Ex parte. </p>

On appeal of Elsie M. Folwell, executrix and residuary legatee, from a decree of the prerogative court. The opinion of Magie, ordinary, is reported in 67 N. J. Eq. 570.

<p>A mortgage made by a grantee of lands to the grantor thereof, and which recites that it is a purchase-money mortgage and contains a. clause that certain judgments against the grantee which are mentioned therein -shall have priority in lien over the lien of the mortgage, is by such clause rendered subject to the lien of the judgments.</p>

<p>When a man and a woman intend to marry and live together as husband and wife, but their intent is frustrated by the existence of some unknown impediment, when the impediment is removed and it is shown, that the same intent continues, their relations are lawful.</p>

<p>1. Under section 3 of the Mechanics’ Lien law (P. L. 189S p. C>38), the remedy by stop notice is open to a party who, under employment by or contract with the contractor, has installed fixtures and other materials in the building, and his claim may include the work of installation as a part of the cost of the materials in situ.</p> <p>2. A stop notice which declares that certain materials were furnished to the contractor “for and in the erection” of a building, sufficiently shows that the materials were actually used in the building.</p> <p>3. A stop notice which sets forth that a certain sum of money is due from the contractor to the claimant for materials used in the erection of a building, and that the contractor has refused to pay the money so due, need not more explicitly state that payment has been demanded of the contractor. The term “refusal” naturally imports a previous demand or request for payment.</p>

On appeal of Monroe V. Poole, defendant. On appeal from a decree of the court of ehancei^' advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. SIS.

On appeals from a decree of the prerogative court advised by Vice-Ordinary Reed, whose opinion is reported in 66 N. J. Eq. (21 Diclc.) sm. On November 7th, 1900, Maurice Browning, a resident of New Jersev', and George G. Browning, a' resident of Pennsylvania, who were then engaged in business in Philadelphia as copartners, executed an assignment of the firm’s assets to Henry B. Hanford, of Philadelphia.

<p>1. A deed, absolute on its face, was given by a husband and wife to a trustee, to secure him. and others who were liable on a note of the husband. On a bill to foreclose the deed as a mortgage — Held, that the wife’s inchoate right of dower was subject to lien only to the extent that the amount to be secured was made known to her at the time the deed was executed.</p> <p>2. Where a deed in the nature of a mortgage is made to a trustee, the eestms que trustent are necessary parties to a bill to foreclose the deed as a mortgage, at least if they are known, and are not so numerous as to make it impossible or highly inconvenient to include them as parties.</p>

<p>On appeals from decrees of tbe prerogative court advised by Vice-Ordinary Bergen, whose opinion is reported in 67 N. J, Eq. S7A</p>

The petition upon which Ellsworth Booze was adjudicated a bankrupt was filed by him on August 22d, 1902. The deed attacked was executed on January 24th, 1902, more than four months before the petition was filed. The deed was made to Catharine Thorne, for the expressed consideration of one dollar and other valuable consideration.

All the matters in dispute appear to have been presented and decided except the allowance of a counsel fee. The complainant moves for the allowance of such a fee. It is opposed by counsel for the defendant on several grounds. Argument has been twice heard on the question. The suit is for the partition of about thirteen thousand acres of land lying in Atlantic county, consisting of one main tract and a number of smaller ones.

The bill of complaint was filed by Joseph P. Richardson, the administrator with the will annexed of' Joseph Hatch, a deceased partner, against Hugh Hatch, the surviving partner of the late firm of Hatch & Brother, and seeks a discovery and accounting regarding the partnership business.

<p>On appeal from a decree in chancery advised by Vice-Chancellor Grey, whose opinion is reported in ¡67 N. J. Hq. >800.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Bergen, whose opinion is reported in 67 N. J. Eq. &07.</p>

<p>On appeal from a decree of Chancellor Magie, whose opinion is reported ante p. 7.</p>

<p>On appeal from a decree of the prerogative court advised by Vice-Ordinary Bergen, whose opinion is reported arde p. 584.</p>

<p>On appeal from a decree of the. court of chancery advised by Vice-Chancellor Reed, whose opinion is reported in 67 N. J. Eq. 239.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Grey, whose opinion is reported ante p. -B9.S.</p>

<p>On appeal from a decree in the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in &5 N. J. Eq. (20 Dick.) 582.</p>

<p>On appeal from a decree in the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 65 N. J. Eq. (20 Dick.) '582.</p>