Volume 71 — New Jersey Equity Reports

<p>On order to show cause.</p>

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

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

<p>A plot of land belonging to a street railway corporation, and used in the prosecution of its business of carrying passengers, which was included in a mortgage of the whole plant and franchises of the railway corporation, was leased by it for nine hundred and ninety-nine years, so that the lessee acquired exclusive rights to the surface of a large portion of the plot and underground privileges. The railway corporation reserved thereby a portion of the plot for the use of its surface system of railways, and was entitled, under the lease and contract, to maintain elevated tracks thereon for the use of its elevated system of railways in substantial compliance with a plan accompanying the lease and contract.—Held, (1) that while a mortgagor or án owner of premises subject to a mortgage is entitled to manage, control and dispose of the mortgaged premises at his pleasure, yet a mortgagee thereof may demand relief against the mortgagor or his assigns, owners' of the mortgaged premises or lessees thereof, if their acts, if carried out according to their contracts and proposed plans, will operate to depreciate the value of the property upon which the mortgage is security; (2) a mortgagee, with a mortgage on the plot of land above mentioned, may obtain relief against the execution of the plan proposed by the lease and contract between the present owner and the lessee, if the plan tends to diminish the power of the street railway corporation to operate its plant under its franchises with profit.—Held further, (1) ihe mortgagee of the plot has no ground for complaint of a lease of part thereof, on the ground that thereby the railway corporation has debarred itself from enlargement of its terminal facilities, although such enlargement seems to be desirable and is claimed to be necessary in the near future; a mortgagee accepts the security as it was when the mortgage was made, and while he may have been influenced in accepting it by a reasonable expectation that the interest of the mortgagor would require betterments which would increase his security, yet he acquires no right to require any such betterments, and has not been really injured by the present owner divesting itself of the right to make betterments; (2) when the owner of such a plot subject to a mortgage which includes the plant and franchises of a railway corporation, which plot is necessary for the profitable use of the railway corporation in the conduct of its business, leases portions of the tract to another corporation which proposes to make use of the same, in part, for a traffic in carrying passengers, which competes with that carried on by the railway corporation, a case of threatened injury and deterioration of the mortgaged premises is presented, which justifies relief; (3) where the plan proposed by the parties to the lease and contract for the continued working of the cars of the railroad corporation is shown to be incapable of being carried out without the acquisition of additional land for the support of elevated tracks, and the railway corporation has no power to acquire the right to erect or maintain such tracks by condemnation of the right of property owners, if the tracks are projected to be elevated upon private property, and has no right to erect or maintain the same if projected to be erected upon property subjected to the use of a public highway, without the consent of certain of the property owners and of the municipality; and where, if the elevated tracks thus planned cannot be erected and maintained, the railway corporation would be compelled to arrest its cars and deliver its passengers at a distance from a ferry which is now contiguous to said plot, or to make use of elevated stub tracks upon the plot, which are conceded to be inefficient, a case of impairment and deterioration to the mortgaged premises is exhibited, for which the mortgagee may have relief.-—Held further, that the corporation holding in trust the mortgage securing bondholders may assert its right to relief against deterioration- of the security of the mortgage, notwithstanding some of its directors are also directors in the railway corporation which has executed the lease and contract complained of, or in a corporation which is a large stockholder therein, the relief sought being for the protection of bondholders who are cestui que trustent. The lessee asserts, by its answer, that the bonds secured by the mortgage in question have matured, and offers to pay the same on demand. The complainant asserts that the bonds have been extended by an agreement, and are not now due.—Held further, that the right of the lessee to- redeem should be asserted by tender and by- a proper bill for redemption.</p>

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

<p>A testator, by his will, left his farm and the residue of his property in trust, directing that the income, rents and profits should be divided between his two daughters for life, with remainder, at their respective deaths, to their children, &c. By the will he empowered the trustee, if a mortgage which encumbered the farm was called in, to mortgage the farm to an amount not exceeding the encumbrance. He also empowered him to sell all his Veal estate, but with a proviso that no sale of the farm should be made during the lifetime of either of the daughters without their consent, nor unless it is necessary to pay debts. The farm produces an income over the interest of the mortgage which encumbered it at testator’s death and the necessary expenses.—Held, (1) that the testator intended that such income should be divided between his daughters, and that there is no duty imposed on the trustee to accumulate the income for the ultimate payment of the mortgage; (2) that a comparison of the provisions of the will sufficiently indicates that the testator used the word “nor-,” in the proviso to the grant of power to sell, in the sense of “or.”</p>

<p>1. A statement in a bill, that complainant recovered against a defendant a judgment at law and issued thereon an execution, which was returned wholly unsatisfied, is a sufficient allegation of an unsatisfied judgment, whereon the legal remedy has been exhausted.</p> <p>2. What force should be conceded to statements of facts in a bill, made upon information and belief, need not be considered when the bill contains statements not thus limited, which, if established by proof, would entitle complainant to the relief sought.</p>

<p>1. The act .‘‘to pass estates in fee by certain devises in wills and testaments and to limit estates in tail,” passed August 27th, 1784 (3 Gen. Stat. p. 8768), was not designed to prevent a testator from devising an estate for life in lands, either by express words or by necessary implication, unless he also made a further devise of such lands after the decease of the devisee for life. The legislative intent was to compel the construction of devises which omitted the words “heirs and assigns” as passing an estate in fee except in two cases—first, where the will contained expressions from which it appeared that the devise was intended only to convey an estate for life; and second, when testator made no further devise after the death of the first devisee. Although the act connects the description of these two classes of cases by the conjunction “and,” the plain intent requires “and” to be read as “or,” and the statutory construction cannot be made if either case appears. 2. A devise of lands to A. upon condition that he should not encumber it nor have the power to sell it, but should have the power to devise it by his last will and testament—Held, to exhibit an intent to convey only an estate for life.</p>

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

<p>Testatrix, by her will, devised and bequeathed, to persons named, both real and personal property, to be divided among them in unequal shares. She then provided that such shares should not be paid until the respective donees should become of age, but in the meantime should be deposited in some bank or institution, on interest, and that her executor was “not to be prevented” from applying any share, during the minority of the donee, to his or her support and maintenance, if the executor deems it fit and proper so to do. She then empowered her executor to sell and dispose of her estate “as the law may require” him to do.—Held, (1) that the executor was thereby empowered to make sale of the real estate of testatrix, and to d-ivide the aggregate sum of its proceeds, and the undisposed of personal estate, into the shares designated by testatrix, to pay the share of any owner, of age, to him or her, and to retain the share of any donee not yet of age; (2) that as to the share of any minor, the executor is to hold the same as a trustee, and to deposit the same so as to draw interest, with the implied power to use the share for the support and maintenance of the minor, if he adjudges it proper to do so.</p>

<p>1. In a suit for divorce, the uncorroborated testimony of one of the parties is insufficient to establish any of the essential facts.</p> <p>2. Where the conduct of a wife on leaving her husband is not sufficient to make out desertion, but only separation, it is ordinarily the husband’s duty to seek a reconciliation and a renewal of the matrimonial status before such separation can constitute willful and obstinate desertion ; but a demand for the return of the wife is not essential, where the circumstances justify the inference that such a demand would be wholly ineffective.</p>

<p>1. When an action at law is pending in which the defendant has a complete defence, this court will not withdraw the question from the law court, unless the case involves some equitable element which the law court cannot apply, but which must be applied to do complete justice, or unless the relief of defendant cannot be afforded by the law court or without the intervention of this court.</p> <p>2. Complainant and defendant are both corporations of the State of New Jersey. The defendant could prosecute the claim it asserts against complainant, and which complainant resists, in the courts of this state. It could also prosecute its claim by attachment upon a large and valuable plant of complainant in Pennsylvania. In either New Jersey or Pennsylvania the claim could be prosecuted and defended by proofs and witnesses at hand. Under such circumstances defendant simultaneously commenced, by attachment, three several suits against complainant—in Ohio, Michigan and Wisconsin—wherein, for a claim of less than $4,000, credits to an amount exceeding $20,000 were attached.—Held, (1) that this use of the process of law courts had the obvious effect to harass and oppress the defendant, and must be decreed to have been intended to do so; (2) that if complainant will, by giving proper security, put defendant in a position to enforce its claim as favorable as it has acquired by the attachments in question, it will be entitled to an injunction against the further prosecution of the attachments.</p>

<p>On petition for divorce and motion for a reference, no answer having been filed by the defendant.</p>

<p>1. Where complainant in fact owned stock in defendant corporation, he could sue for the appointment of a receiver for the corporation in insolvency proceedings, though the stock stood in the name of the broker by whom it was purchased for complainant.</p> <p>2. The holder of unpaid coupons of bonds secured by a mortgage given by defendant corporation is a creditor of the corporation for the purpose of prosecuting a suit to have defendant declared insolvent and for the appointment of a receiver.</p> <p>3. A suit by a bondholder of a corporation to throw if into insolvency and administer its assets for the benefit of all of its creditors is not a suit to collect the debt evidenced by the bond and secured by a mortgage, within the provision of the mortgage that no holder or holders of any less proportion than twenty-five per cent, of the total amount in value of the outstanding bonds or coupons secured thereby shall be entitled to institute any proceeding to foreclose the mortgage, or to execute the trust, or for the appointment of a receiver, or for any other remedy under the mortgage.</p> <p>4. Where a corporate mortgage securing bonds attempted to forbid the foreclosure of the mortgage by the ordinary process at the instance of the holders of any of the bonds, declaring that the trustee should enforce the mortgage by entering and taking possession and selling the property without the aid of the court, and that the rights and remedies secured to the holders of the bonds as against the mortgaged premises and every part thereof should be exclusive of all others, any law or usage, present or future, to the contrary notwithstanding, such provisions were impotent to deprive the court of its inherent right to supervise the conduct of the trustee in foreclosing the mortgage.</p> <p>5. Facts held sufficient to show that defendant corporation was insolvent, and could not within a short time resume its business with safety to the public and advantage to its stockholders, and was therefore subject to the appointment of a receiver in a suit by a bondholder, as authorized by the Corporation act, section 65. P. L. 1896 p. 298.</p>

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

On order to show cause why an injunction should not issue. Heard on bill and affidavits annexed, and on answering affidavits.

<p>1. In the'absence of any Us pendens, a suit brought by a prior owner of property in question against a water company to restrain it from cutting off the supply for a particular year to such, owner’s tenants does not constitute constructive notice to such owner’s grantees of the water company’s claim against complainant’s grantor for water rents in arrears.</p> <p>2. Where mandamus to compel defendants to refrain from refusing to furnish water to complainant’s hotel would be ineffective as to the lessees, and the deprivation of such supply involved the comfortable enjoyment of such hotel, complainant and his tenants are entitled to relief by injunction.</p> <p>3. In the absence of statute expressly authorizing it or making arrearages for water rents a lien on land on which the water has been used, a water company has no right to cut off the supply to the premises unless and until the arrears due from a former owner are paid.</p> <p>4. Buies of a private water company which purport to authorize the water company to refuse to furnish water to certain premises until arrears for water rents standing against a prior owner were paid, are void for unreasonableness.</p>

<p>1. Where goods of a judgment debtor were in possession of a mortgagee thereof, the taking from the mortgagee of a list of the chattels already agreed on between the mortgagee and the judgment debtor, the mortgagor, for the purpose of an inventory, and annexing such inventory to the levy, was sufficient as a legal levy, although the officer did not see the goods.</p> <p>2. Where the owner or purchaser of property subject to several encumbrances pays off a prior encumbrance with his own money, the payment inures to the benefit of the subsequent encumbrances, against which the prior encumbrance cannot be kept alive for the owner’s benefit, even by express agreement.</p>

<p>Oil demurrer of defendant Connell to bill of complaint.</p>

<p>The Corporation act (P. L. 1896 p. 286) provides that no corporation shall make dividends except from the surplus or net profits, and that directors, under whose administration a violation of the statute may occur, shall be liable to the corporation and to its creditors.—Held, that where a director of a corporation voted for the payment of a dividend, knowing that it was to be paid from capital, the mere fact that a committee appointed by a new board of directors, and the board itself, and a majority of the stockholders, deemed an action against the director in question ‘‘inexpedient,” was no bar to the maintenance of an action against him by a stockholder.</p>

<p>Tln-ee mortgages executed by the same mortgagor to the same mortgagee contained an identical description, by metes and bounds, describing the property as situated at the intersection of certain named avenues. The mortgages in fact were intended to cover the same property, but the one first executed mistakenly designated the township in which it lay, while the second named the township correctly, and the third erroneously stated that the property lay in a certain city.—Held, that the peculiar coincidence of the identity of the description by metes and bounds in all three mortgages being rationally explainable only on the theory of mistake in the location given, the mortgages were sufficient to put a subsequent mortgagee on inquiry and charge him with knowledge of the existence of all three mortgages.</p>

<p>1. Where a testator made a devise to a hospital association chartered in 1857 (P■ L. 1857 p. 44), but which has never taken any further steps since its organization, and is incapable of doing the work for which it was organized, the devise will be paid to another general hospital in the same city and having the same objects in view, under the doctrine of cy pres.</p> <p>2. Where a devise is made to a hospital, the charter Of which provides that no regulation of its directors shall allow any preference to patients on account of difference in religious faith, or on account of birthplace or parentage of the parties, and the devise is to be paid to another hospital under the doctrine of oy pres, the designated hospital must be in a position to comply with this proviso.</p>

On bin of interpleader. On final bearing upon statements of defendants of the grounds of their several claims to liens by stop notices under section 3 of the Mechanics’ Lien law.

<p>1. A testator, by his will, ordered his executors to make a settlement with his creditors of debts outstanding at the time of his assignment for the equal benefit of his creditors, as shown by a list to be found with the will. This list did not include the names of all of such creditors, and the debts were all extinguished by the assignment proceedings or barred by the statute of limitations.—Seld, that such provision is void as an attempt to bequeath property to persons only ascertainable by reference to a paper not executed as wills are required to be.</p> <p>2. Where two bequests are given by distinct instruments, as by will in one case and codicil in another, even if the amounts are alike, the presumption is in favor of both bequests, and the burden, of overthrowing the presumption is on the executor.</p>

This is an application for a preliminary injunction to restrain the defendants from operating an automobile garage because of the noise, odor and danger arising therefrom. The complainants are John Y. O’Hara and Catharine O’Hara, and the appearing defendants are .Bichard J. Nelson and James Bay, and they will herein be called the defendants.

<p>1. Under a contract whereby complainant was to receive one-third of the profits that came to a firm from a mining venture, a bill to compel a corporation, to which the firm transferred its interest, subject to the rights of the complainant, to transfer to him one-third of the interest received by it from the firm, was insufficient where it failed to show that the venture had resulted in a profit, or that it had been completed.</p> <p>2. A bill to compel an accounting by a joint adventurer with the complainant, under a contract by.which the complainant was to receive one-third of the profit of the adventure, must show that ihe joint venture had reached determination and profit had been made, or that the venture had reached a point where the defendant had been reimbursed its outlay, so that a profit was being currently made, or that defendant was misconducting itself with respect to the business and could be held to have legally perpetrated a fraud on complainant.</p> <p>3. Whore, on a joint venture by complainant and a firm, stock in certain corporations was acquired, and complainant became a general manager thereof, where the firm transfers its interest in the corporations to another corporation, the fact that the latter so voted the stock as to eliminate the complainant as director and general manager of the original corporations, is not such misconduct as entitles the complainant to an accounting.</p>

Tiearcl on bill and demurrer. This is a bill filed by Eugenia S. Graham against the executors of Gaven Spence, her father.

<p>1. Where, in a suit for divorce, there is no evidence that the petitioner ever resided in this state, and it appears that after the defendant had committed bigamy in this state, and while he was stopping here with the second woman petitioner came from England, where she had been living with her parents, to aid in the prosecution of her husband for bigamy, the New Jersey courts have no jurisdiction of her 'action for divorce, neither party being a resident of this state.</p> <p>2. It is the duty of all solicitors making applications in cases in forma pauperis to see to it that applicants, so far as they are able by investigation to determine, are entitled to favorable consideration, and that all of the 'facts calling for the exercise of discretion in behalf of such applicants exist.</p>

<p>Heard on bill, answer, replication and proofs in open court.</p> <p>Hnder the above title two other cases, identical as to the points involved and between the same parties, were tried. In disposing of them in this opinion, they will be referred to as if on.e case.</p> <p>This is a bill to foreclose a mortgage given by Phillippe Geyer to the Manchester Building and Loan Association. It is charged in the bill that the defendant has defaulted in the payment of dues and interest, in violation of the covenants of the mortgage. The defence, so far as it concerns the matter to be decided, is that there was no default in this respect.</p>

<p>The bill in this suit was filed on the 10th of January, 1906. It alleged, that the complainants, Barna and two others, were members in good, standing of the Little Russian Greek Catholic Church of S.t. Peter and St. Paul of Jersey City, an association incorporated under, an act entitled “An act to incorporate associations not for pecuniary profit;” that the three complainants, together with two others, were elected trustees of said church in the year 1904 to serve for the year 1905, and that the two' other trustees, who were not complainants, had withdrawn from the association and left the State of New Jersey; that the priest of the church had given notice therein, upon certain days preceding December 29th, 1905, of a meeting of the members of the church to be held on the last-named date for the purpose of electing trustees and officers of the church for the year 1906; that upon the evening of December 29th, 1905, this meeting was held, but that there were two factions in the church, and they raised such a disturbance that the police officers broke up the meeting before it had transacted any business.</p> <p>The two factions are named from their respective leaders, the Barna faction being represented by the complainants and the Kirczow faction by the defendants. The allegation of the bill is that the Kirczow faction raised the disturbance which resulted in the interference of the police with the meeting of December 29th; that Kirczow and his followers, upon the evening of January 3d, 1906, attempted to hold a meeting in the basement of the church, but since such meeting had not been called in the customary manner, by the announcement of the priest, they were denied admittance to the church and withdrew to a hall in the vicinity and there pretended to hold an election. The bill then charges that the persons voted for at the meeting of January 3d, held by the Kirczow faction, were not legally chosen or elected to their offices; that the meeting was not properly called or held, and that those that attended constituted but a small minority of the congregation, and were not qualified to vote for offices or hold them; that they had not contributed to the support of the association, and were not members of the association; that on Sunday, January 7th, 1906, Kirczow and his adherents, alleging that they had been elected at the meeting held by them on January 3d, forcibly and illegally took possession of the church and collected the moneys therein contributed, and refused on demand to deliver the same to the hold-over officers, as aforesaid; that the persons elected at the Kirczow meeting hold themselves out as officers, and have destroyed and removed the locks and fastenings upon the gateway and entrance to the church, its halls and meeting-rooms, and replaced them with other locks, of which they keep the keys, and are barring out tire members of the association therefrom; that on the 7th of January, 1906, the priest, in accordance with the custom, announced from the pulpit that on Januáry 10th, at eight o’clock in the evening, a meeting of the congregation would be held, in place of the abortive meeting of December 29th, for the purpose of electing trustees and officers of the church, and that Kirczow and the officers elected at his meeting threatened to refuse admission to the congregation on that evening to the hall of the church.</p> <p>An injunction was prayed restraining the Kirczow officers or faction from barring the officers and members of the church from the edifice, and commanding them to deliver to the holdover officers the keys to the locks and fastenings placed by them upon tire church.'</p> <p>Upon this bill an order to show cause was granted, returnable on the 15th of January, with ad interim restraint against anyone hindering or preventing the access of the priest and the members of the congregation to the church upon any day, dates or occasions when, according to the customary use of the church, it should be open to the aforesaid persons.</p> <p>Nothing further was done with respect to this order to show cause, but subsequently the defendants filed their answer, together with a cross-bill. This answer admits that the complainants are members of the church, and that it is an association incorporated under the act to incorporate associations not for pecuniary profit. It denies that the persons elected in 1904 for the year 1905 were the duly elected trustees of the association, and denies that the officiating priest is the regularly appointed priest. It admits that no by-laws or rules of conduct had, up to the 3d of 'January, 1906, been adopted by the association. It admits that the meeting of December 29th was broken up before any action was taken, but places tire blame for the disorder upon the Barn a faction. It recites the happenings of January 3d, and alleges that at a hall in the vicinity of the church an election was duly held, at which duly qualified members of the association. elected tire defendants trustees and officers of the association. It admits that Kirczow changed the locks upon the church and took possession, but recites that, as a trustee and president, duly elected at the meeting held January 3d, he had a right to change the fastenings and to take possession. It admits that the priest, on January 7th, 1906, announced a meeting to be held January 10th for the election of trustees and officers, but insists that he did so contrary to the instructions of ihe defendants, who are the trustees and officers.</p> <p>The cross-bill, among other tilings, charges that on the 30th of December tbe priest was requested to call a meeting of the association for January 3d; that he did not do so, and notice was given by circulars of such a meeting, and that on the evening of January 3d members gathered in front of the church, which was locked, and thereupon they went to a hall in the vicinity of the church and held a meeting, at which the persons named (who are those heretofore referred to as of the Kirezow faction) were elected to the various offices in the association; that thereafter, and on Sunday, January 7th, the priest of the church announced that a meeting for the purpose of holding an election of officers and trustees would be held on January 10th; that Kirezow attended this meeting and called it to order, and that a motion at such meeting was made to ratify and approve the minutes of the meeting of January 3d and the election held upon that day, and that this motion was carried, as was a motion to adjourn; that Barna, the leader of the other faction,-was then elected the chairman of the meeting by those remaining, and that those remaining then held an election for all of the said offices and filled each, and that the officers thus elected threatened to eject the officers elected by the Kirezow faction, or to interfere with them in the performance of their duties; that the Barna faction, through its officers, are collecting moneys due the church and interfering with the collector appointed by the Kirezow faction; that tire real estate belonging to the association is of great value, being worth at least $25,000; that there is a mortgage of $12,000 against -it, and several judgments against the church, and that interest on the overdue debts is now accumulating, and the dues and other moneys receivable by the association to pay its debts well be uncollected or diverted, and that this will cause the failure of the purpose, for which the association was formed, to the great detriment of the members of the same; that the two bodies claiming to be trustees have on numerous occasions come into personal conflict in the church edifice, in the presence of the congregation, and that many members, in consequence, have left the church, and others threaten to leave, and that the contributions and regular payment of dues are falling off because of dissatisfaction with the existing situation.</p> <p>The prayer of the cross-bill is that the officers and trustees elected at the meeting of January 10th may be restrained from acting and performing the duties of their offices, and may be restrained from interfering with the defendants in the performance of their duties as officers, and from interfering with the property belonging to the association, and with the collecting of the dues and other moneys payable to the association.</p> <p>To this answer a replication was filed by the complainants, and to the cross-bill an answer was filed. It is unnecessary to recite the allegations of the answer to the cross-bill in any detail. It denies that the meeting of January 3d, held by the Kirczow faction, was valid, and charges that the meeting of January 10th, in the hall of the church, was regularly called in the customary manner, and was a valid meeting, and that their officers chosen thereat were elected by a majority of the people there present, and that such majority were members of the church or association, and should be so declared.</p>

<p>1. Where the original separation between husband and wife was not a desertion on the husband’s part, it could only be turned into desertion by the wife in good faith demanding of the husband a resumption of the marital relationship and the refusal of the husband to accede thereto.</p> <p>2. A wife cannot establish desertion on the husband’s part by proof that he refuses to comply with her demands relative to his habits and manner of supporting her, her duty being to accept the situation that her husband is able to maintain.</p>

<p>On appeal from a decree of the Monmouth county orphans court.</p>

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

<p>1. Where the will of a testatrix, written in ink, remained in her possession until her death and was then found with certain parts erased by the use of a lead pencil—Held, that the erasures were made by the testatrix animo revooandi, and the will should be probated with the canceled parts omitted.</p> <p>2. Where it cannot be said that a will contest is without merit, an allowance of a counsel fee to a party to the contest is proper.</p>

<p>Appeal of Pennsylvania Iron Works Company from a decree advised by Vice-Chancellor Bergen, whose opinion is reported in 69 N. J. Eq. 718.</p>

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

1. There are facts proved in this case which taken by themselves cast the burden upon the defendant Mrs. Hagan of showing that the deeds which she received from her mother are untainted by fraud of any kind. Mrs. Telfer, the grantor, was sixty-three years of age at the time of her death, on June 16th, 1899. The deeds were executed June 9th, 1899, and conveyed practically all the grantor's estate.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Emerjq whose opinion is reported in 69 N. J. Fq. 602.</p>

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

<p>Under the statute of distributions as amended in 1899 by striking out the proviso limiting representations to brothers’ and sisters’ children, the estate, where the intestate’s living next of kindred are all first cousins, is to be distributed among the living first cousins and the descendants of deceased first cousins per stirpes; the descendants of great-great-grandparents and of great-uncles and great-aunts, who do not come within this description, are excluded.</p>

On appeal of Clarence L. Speyers, George D. Nevius, administrator of Gertrude N. Boice, and Cornelius N. Conover, from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 69 N. J. Fq. WO.

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

<p>1. In a suit for divorce, evidence considered, and held sufficient td show desertion.</p> <p>2. To constitute desertion, it is not necessary that the intent to desert should have been formed at the time the party left his home, but it is sufficient if he afterwards determines to desert, and persists in such de-r termination.</p> <p>3. Under a statute requiring corroborative evidence of desertion in order to obtain a divorce, testimony of other witnesses is not required; but it is sufficient if the circumstances, as shown by the expressions and conduct of the defendant, together with the letters of the parties, corroborate the testimony of the complainant.</p>

L. ■1902 ¶. £64) provides as follows: “When any husband and wife shall live in a state of separation, without being divorced, and shall have any minor child of the marriage, the chancellor, upon the said child being brought before him upon habeas corpus, shall award the custody of such child, and make such order relating thereto for the access of either parent to such child, at such times and under such circumstances as he may decree expedient.” Tbe ninth section provides…

DeGray deviséd’ as follows: • “All that lot of land and the buildings, erections, structures, machinery thereon and the appurtenances thereto belonging, which I have called the mill, pond and mill lot, * * * and which property is now leased to or held by the Paterson Silk Dyeing and Finishing Company or Mr. Claude' Greppo, I give, devise and bequeath to my son' Wm.

On appeals of Ocean City Association and Martha Ann Gandy from a decree in chancery advised by Vice-Chancellor Bergen, who filed the following conclusions: I think I can determine this question now as well as any other time. It has been fully argued and the facts pretty well threshed out by counsel.

The bill is filed for the purpose of requiring the defendant, Kerns, to pay a deficiency existing between the amount due on a mortgage and the price for which the property sold under foreclosure of it. The claim is based upon a clause in a deed made by Charles E. Napp to E. L. Kerns, in which the grantee assumes the payment of a mortgage indebtedness upon the property, part of which is represented by the foreclosed mortgage.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Grey, whose opinion is reported in 69 N. J. Eq. 222.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported, in <6& N. J. Eq. 159. ■ .</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 69 N. J. Eq. -60%.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Pitney, whose opinion is reported in W N. J. 'Eq. 40.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 70 N. J. Eq. QSS7.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 69 N. J. Eq. 7m.</p>

On appeal of Clarence M. Busch, from orders adjudicating certain claims against the defendant, an insolvent corporation, advised by Vice-Chancellor Grey, whose opinion is reported in 7'0 N. J. Eq. -828.

<p>On appeal of Roger Ryan from a decree of the prerogative court advised by Vice-Ordinary Bergen, whose opinion is reported in @9 N. J. Eq.</p>

<p>On appeal from a decree of the conrt of chancery advised by Vice-Chancellor Grey, "whose opinion is reported in TO N. J. .Eq. 3J$.</p>

<p>On bill to quiet title.</p>

<p>A bill for discovery and an accounting between partners, which alleges the existence of the partnership, but makes no statement as to the contributions of the parties to the partnership assets or the proportions in which they were to sustain losses or divide profits, is insufficient.</p>

<p>' A will purported to devise to executors certain lands in trust. Residuary devisees having asserted that the devise in trust was void because violative of the rulo against perpetuities, the executors file this bill to obtain a decree that the trust should be performed and all necessary directions be given for that purpose and for further relief.—-Held, (1) that the right of trustees to require the direction of this court in aid of the performance of their trust duties is not involved, as the bill seeks, rather, a determination whether they are trustees, which involves the question of the title to the land in question; (2) that a decree could not be made in this cause which would establish the title or bar actions at law respecting the same.</p>

<p>The time of the performance of a contract for the sale of lands may be made of the essence of the contract, by its express terms. A bill which seeks relief upon such a contract, but which discloses that by its terms, time was of the essence of the contract and admits that the contract was not performed according to its express terms, is demurrable.</p>

<p>1. A bill, seeking relief which will vary a decree previously made in a cause for specific performance of an agreement for exchange of lands upon allegations of facts subsequently discovered which, if proved, will justify relief, is good upon demurrer.</p> <p>2. While parties to a fraudulent transaction are, as respects each other, bound thereby, a court of equity will neither enforce nor avoid the transaction at the demand of either party.</p>

On bill to partition lands which were devised by the will of Joseph Campbell by the following language: “In the name of God, Amen: I, Joseph Campbell of the Township of Mendham of the County of Morris and state of New Jersey being of sound mind do give and bequeath to my Dear wife Rachel H. Campbell, all my property, personal and real for 7mr own use and benefit during hur life and at hur death to be divided eaquel between my two children Stephen IT. Campbell and Hattie DeH.

<p>1. The use of a steam traction engine and trailers in the streets of a city is not a public nuisance per se.</p> <p>2. On an issue as to whether the use of a traction engine and trailers in the streets of a city constituted a nuisance, owing to danger to the traveling public or injury to the streets, evidence considered, and held, insufficient to show a nuisance.</p> <p>3. The court of chancery has power, at the instance of the attorney-general, to inquire and determine whether one using a traction engine and trailers in the streets of a city has so operated the same, or is likely to do so, as to render it unnecessarily injurious either to the highways or to the traveling public, and to restrain its use accordingly.</p> <p>4. P. L. 3903 p. 82 requires every person driving a motor vehicle, at request from a person riding or driving a horse, to cause the motor to stop and remain stationary.—Held, that though, on an information by the attorney-general charging defendant with creating a public nuisance consisting of the use of a traction engine and trailers in the streets of a city, there was some evidence tending to show that stopping the engine was injurious to the highway, owing to the slipping of the wheels when the engine started, the defendant would not be restrained from stopping on the proper signal.</p> <p>5. On an information by the attorney-general seeking to restrain defendant from operating a traction engine and trailers in the streets of a city, defendant should come under obligations to the municipal authorities to repair and keep in repair any part of the street, where it clearly appeared that actual excavation was due to the revolving of the wheels in turning corners.</p> <p>6. On an information by the attorney-general to restrain defendant from operating a traction engine and trailers in the streets of a city, it appearing that one street, occasionally used, had never been so constructed as to render it fit for heavy travel, the defendant will be enjoined from using such street without the consent of the city.</p>

<p>On final hearing.</p>

<p>1. In an action by a widow to recover land, under a writing by her deceased husband, from his heirs, whom she does not attempt to hold personally liable, the widow is a competent witness as to transactions with her husband.</p> <p>2. In a suit in equity by a widow to recover land under a writing given by her husband, whereby he gave her a house and lot, evidence of an antenuptial oral promise by him, in consideration of marriage, to give her the house, and evidence of payments to her of rent on the house after-marriage and before the execution of the writing, were admissible to show the actual state of affairs between the parties.</p> <p>.‘5. An unsealed writing by a husband, reciting that he gave his wife a certain house and lot, the writing being executed in pursuance of an ante-nuptial oral promise in consideration of marriage, is sufficient to authorize the recovery of the property by the widow by a suit in equity.</p> <p>4. Evidence held, to show that a husband executing an instrument giving his wife a house and lot' had mental faculties and judgment for its execution.</p> <p>5. Where a husband handed to his wife a writing executed by him, giving her a house and lot for a consideration of $1, which she actually paid him, the fact that she afterwards returned the writing to him for-keeping does not affect the validity of the delivery.</p> <p>0. Under the act of March 24th, 1899 (P. L. 1899 p. 58t § 2), as amended by the act of April 9th, 1902 (P. L. 1902 p. 688), providing that the word “heirs” shall not be necessary in a deed to effect a conveyance of the fee-simple, a writing executed by a husband, reciting that.he gave his wife, for the sum of $1, a house and lot, was sufficient to entitle her to a fee-simple estate therein.</p> <p>7. Where a husband, at the age of eighty-four years, executed an unsealed writing giving to his wife the most valuable of the three houses which he owned, equit3r will impose, as a condition to giving her the fee-simple title thereto, that she release her dower in the other houses.</p>

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

answer and proofs. Tlie object of the bill is to enforce a written contract by enjoining the breach of a negative covenant therein.

<p>1. P. L. 1903 p. 660 § 89 provides that when any railroad company shall not properly construct and maintain the bridges or other crossings of highways by its railroad tracks as required by law, it shall be lawful for the governing body of the township or municipality wherein such crossings are located to proceed by suit in equity to compel specific performance of the duties imposed by law on such company, and the court shall prescribe the crossing to be constructed or the repairs to be made. —Held, that such section was not unconstitutional because it authorized the court to give a municipality a compulsory remedy by a suit in equity for specific performance, as distinguished from the legislature’s power to authorize a preventive remedy.</p> <p>2. A railroad charter (P. L. 1838 p. 10^ § 80), requiring the corporation to construct and keep in repair good and sufficient bridges or passages over or under the railroad where any public or other road shall cross the same, was a contract between the corporation and the state in the sense that it could not be altered or the franchise withdrawn, in the absence of. a power of reservation in the charter, the acceptance of which imposed on the railroad company a contractual- obligation to perform the duties imposed thereby.</p> <p>3. P. L. .1868 p. 1087 § 1 authorized certain railroad companies to shorten and straighten their railroad lines, to cause the same to pass above or below any public highway or street crossing the same, and if necessary to change the location or grade so as to make the crossing more convenient, provided that the location or grade of no street or highway should be changed without the concurrence of the common council of any city or borough or a majority of the surveyors of the highways of any township in which the change might be made.—Meld, that the township committee of a township had neither express nor implied authority under such act to grant any dispensation to one of the railroad companies mentioned therein with reference to the changing of the grade of a highway crossed by the railroad.</p> <p>4. P. L. 1868 p. 1037, authorizing a change of location or grade of a highway at a railroad crossing, provided that the location or grade of no street or highway should be changed without the concurrence of a majority of the surveyors of the highways of the township in which the change was to be made, did not confer any authority on such surveyors to vacate in the interest of the railroad company any part of a street or reduce the width thereof.</p> <p>5. Where a railroad company prepared a plan for the alteration of a highway under an overhead crossing, narrowed the roadway by the construction of abutments located in the highway, and failed to properly provide for the draining thereof, the railroad company was bound to make such alterations therein as to displace the abutments from within the lines of the highway, and to properly drain the eul-de-sae formed under the bridge. •</p> <p>6. P. L. 1908 p. 660 § 29 provides that when any railroad company shall not properly maintain the bridges or other crossings or highways, the governing body of the township containing the crossings may proceed by a suit in equity to compel specific performance of the railroad’s duties with reference thereto.—Meld, that a suit in equity to compel the alteration of a railroad crossing was maintainable under such section, regardless of the remedies by mandamus, ejectment or indictment.</p> <p>7. Where a railroad charter (P. L. 1882 p. 101/. § 20) required the company to construct and keep in repair good and sufficient bridges or passages over or under the railroad where any public or other road should cross the same, the railroad company was not bound to maintain the highway under its overhead crossing in a proper state of repair.</p>

<p>1. Where a city was authorized by 1 &en. Stat. p. Gift § 9 to ordain and • establish ordinances, resolutions and regulations for fixing and collecting water rents or prices for water, and an ordinance fixing rates reserved to the city the right at any time to set and maintain a metre on any service pipe, and to charge the metre price after all water was delivered through any service pipe according to the amount indicated by the metre, the establishment of water rates by the municipal authorities in the exercise of their judgment could not be controlled by this court except for inequality or some similar reason.</p> <p>2. The reasonableness of the rates as against water consumers generally could only be called in question by the supreme court in the exercise of its supervisory jurisdiction by means of a writ of certiorari.</p> <p>3. Where a city was authorized to fix rates for the furnishing of water to its inhabitants, it was entitled to classify the consumers with reference to the line of business in which they were engaged.</p> <p>4. A water rate, fixed by municipal authorities, of $2.25 per thousand cubic feet of water, which was charged by metre measurement against all boarding-house keepers in the city, was not objectionable for unreasonableness nor as an unjust discrimination against such users and in favor of ordinary residents who were assessed at a “fixture rate,” it appearing that the metre and fixture rate were about equal per capita.</p>

On final hearing on bill, answer and proofs. For previous litigation in this state between the parties, see National Council of Jr. 0. U. A. M. v. State Council of Jr. O. U. A. M., 6'1 N. J. Eq. (19 Dick.) 170; S. C. on appeal, 66 N. J. Eq. (M Dick.) J$9.

On final hearing on bill, answer and proofs. For the opinion of this court on demurrer to the bill herein, see '68 Atl. Rep. 827.

On final hearing on bill, answer and proofs. The bill, as originally framed, was filed November 29th, 1905, by the Morris Canal and Banking Company and its lessee, the Lehigh Valley Railroad Company, against the Diamond Mills Paper Company, and the answer thereto was filed January 11th, 1906, and an amended answer was filed March 13th, 1906.

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

<p>1. A hotel proprietor may acquire a right to the exclusive use of the name of a place in conjunction with the word “Inn” for the name of his hotel.</p> <p>2. Complainant commenced the business of keeping a licensed hotel in 1903 in a rented dwelling, which subsequently became well and favorably known as “The Metuchen Inn,” the word “Metuchen” being the name of the borough in which the hotel was located. No sign containing the words “Metuchen Inn” was ever placed on the building during complainant’s occupancy, but soon after he .removed to another house he used such sign. Two months after he was so. established, defendants started to operate a hotel in the Old place, and placed new signs bearing the same name on the old place, which had become well and favorably known because of the excellence of complainant’s art as a hotel proprietor.—Meld, that defendants’ use of the name was a deception of the public, and that complainant was entitled to an injunction restraining such use.</p>

<p>Testator’s will set apart a sum to be invested and the income paid to his parents during their lives. A subsequent clause directed that all the residue be invested for his wife for her life. Provision was then made for legacies to be paid on her death, “the balance of my estate to be invested for the benefit of my father and mother, but, in case they have both died, then all to go to my brother, and at his death what remains to his children—my intention being that after the death of my wife, and my father and mother, that my brother should receive all that remains, and after him his children.”—Held, that the phrase “what remains” did not show an unlimited power of disposition given to the brother, creating an absolute estate inconsistent with the gift to his children, but the children were entitled to receive, on the death of their father, all that he received.</p>

<p>1. P. L. 190% p. 508 § $0 provides that, in case a husband, without any justifiable cause, shall abandon his wife, and refuse or neglect to maintain her, the court of chancery may decree such suitable maintenance as the nature of the case requires.—Held, that where a husband finally separated himself from his wife, and neglected to cafe for and support her, his act constituted an abandonment within such act, though the wife in the meantime recovered a decree for separation and separate maintenance against him in another state.</p> <p>2. A decree for future maintenance of a wife subject to subsequent modification is not a final judgment within the full faith and credit clause of the federal constitution.</p> <p>3. In a suit by a wife to recover maintenance against her husband, as authorized by P. L.1902 p. 60S § 20, she cannot recover as additional relief an amount due for maintenance under a foreign judgment.</p> <p>4. Where, in a suit by an abandoned wife for separate maintenance, as provided by P. L. 1902 p. 508 § 20, she pleaded a foreign decree granting her a separation from her husband and a weekly allowance for support, and it appeared that the court rendering such decree had jurisdiction of the parties and subject-matter, such decree was conclusive evidence of the husband’s abandonment from the date therein fixed, and was sufficient to establish the abandonment alleged.</p>

<p>1. On a bill for the cancellation of a mortgage on the ground that it was given for corporate stock which the mortgagor was induced to purchase by false representations of the mortgagee, evidence held insufficient to show that the alleged representations were made, or, if made, induced the purchase.</p> <p>2. On a bill for the cancellation of a mortgage on the ground that it was given for corporate stock which the mortgagor was induced, to purchase by fraudulent representations made pursuant to a conspiracy between the mortgagee and another, evidence held insufficient to establish a conspiracy.</p> <p>3. Where a mining corporation transferred stock in consideration of a mortgage by the buyer to a third person, to whom the corporation was indirectly indebted for the mine, the consideration for the mortgage was its acceptance by the corporation as payment for the stock, and the fact that the mino was worthless did not constitute a failure of consideration for the mortgage.</p> <p>4. Where, in foreclosure, defendant, by separate suit, prayed cancellation for fraudulent misrepresentations concerning the value of the stock for which the mortgage was given, and sought money damages against a third'person joined as defendant on allegations that he conspired with the mortgagee in making the false representations, it was proper for the court of equity, in the exercise of its concurrent jurisdiction, to retain and dispose of the question of the liability of the third person for damages.</p> <p>5. A bill in such case cannot be maintained as to the claim for damages after the expiration of the time limited by law for the commencement of an action at law for the fraud.</p>

<p>1. A covenant in a lease not to claim a rebate for alterations to fixtures on the premises does not relate to the tenant’s right to removal of trade fixtures put in by him.</p> <p>2. Covenants restricting the tenant’s ordinary right to remove trade fixtures are always strictly construed.</p> <p>3. Under a covenant to deliver up the premises at the end of the term in good repair, a tenant can remove old fixtures and replace them again at the end of the term with repairs necessary to make their condition as good as when received or when taken out.</p> <p>4. Under a covenant in a lease for the delivery of the premises at the expiration of the term in as good repair as when received by the tenant, reasonable wear and tear thereof excepted, a tenant is not obliged to replace fixtures becoming useless from ordinary wear and tear.</p> <p>5. Where a lease of a saloon stipulated that the lessee was to make no alterations without the written consent of the lessor, and would surrender the possession at the expiration of the term in as good a state “as the same are now or may be put into by the lessor, reasonable wear and tear thereof,” &c., “excepted,” the lessor had no claim to any fixtures except those leased, with alterations or repairs 'made by the lessee, and the threatened removal during the term of fixtures substituted by the lessee for old fixtures, which he claimed had become worn out, did not justify an injunction, the remedy at law either for waste or for breach of covenant being adequate.</p>

<p>1. The act of March 30th, 1892 (P. L. 1892 p. 869j 2 Gen. Btat. p. 2078), provides that any person who, pursuant to the terms of a contract for any public improvement in any city, town, township or other “municipality” within the state, authorized by law to contract for such improvement, shall perform labor or furnish materials for the completion of such contract, shall have a lien on the moneys due under the contract.—Held, that where a county let a contract for the construction of a county courthouse, the county was'a “municipality” within such act.</p> <p>2. The act of March 22d, 1900 (P. L. 1900 p. 190), creates a county building commission to control, on behalf of the county, the purchase of ' land, the1 erection of buildings and payment for the same, together with the bonding of the county for the purpose of raising the entire funds for payment.—Held, that such commission, in the letting of a contract for the building of a court-house for the county, acted as agent for the county, and that its contract was the contract of the county.</p> <p>3. The act of March 30th, 1892 (P. L. 1892 p. 869; 2 Gen. Btat. p. 2078 §1), expressly provides that the lien given on moneys due on a contract for a municipal improvement shall exist in favor of subcontractors and their assigns or legal representatives. Subsequent sections, relating to the time of attachment of the lien or the procedure for recovery, re-' ferred to the liability of the “contractor” for the claim preferred, and section 14 (P. L. 1892 p. 873 ; 2 Gen. Btat. p. 2079) defines “contractor” as meaning the person with whom the contract of the municipality is made.—Held, that such subsequent sections did not so modify section 1 as to deprive a subcontractor of his right to a lien thereunder.</p> <p>4. A 'defendant in equity cannot demur merely because other parties are improperly joined, such objection being available only to the defendants improperly made parties.</p> <p>5. Where, in a suit to enforce a subcontractor’s liens on the proceeds of a contract for a municipal improvement, a bank claimed a portion of the fund under an assignment as collateral for the payment of a debt in excess of that due complainant, the bank was a necessary party to the suit, whether complainant’s claim was prior or subsequent to that of the bank.</p>

<p>1. In a suit for divorce for the husband’s adultery, evidence held to establish condonation of the offence.</p> <p>2. On a husband’s cross-petition for divorce, evidence held to establish adultery on the part of the wife.</p> <p>3. The Divorce act (Rev. 1902; P. L. 1902 p. 509 § 22) provides that if, in a suit for divorce for adultery, it appears that both parties have been guilty of adultery, no divorce should be decreed.—Held, that where a husband had committed adultery, and his offence had been condoned, he was not “guilty of adultery,” within such section, so as to preclude him from a divorce for the subsequent adultery of his wife.</p> <p>4. The act of 1902 (P. L. 1902 p. 503 § !/■ ¶ 1) confers jurisdiction to grant a divorce where either of the parties resides within the state at the time of the adultery charged and at the time of filing the bill, but paragraph 7 confers jurisdiction in all cases, except desertion, when either of the parties is a resident of the state at the time of the filing of the bill, and the defendant is served with process within the state. Section 6 provides for like process and procedure as in cases under the .Chancery act, which (Rev. 1902; P. L. 1902 p. 507 § 6) declares that a written appearance by a solicitor shall have the same force and effect as if defendant had been originally served with process by an officer.-—Held, that the phrase “served with process within the state,” in section 7, included an appearance by a solicitor, so that, where a non-resident wife filed a bill in New Jersey for a divorce against her husband for adultery, he was entitled to a divorce on a cross-bill for her adultery'committed while both parties were residents of another state.</p>

<p>1. A corporation will not be restrained from stamping the initials of its corporate name on its goods, though another corporation previously used the same initials as a part of its trade mark.</p> <p>2. Where complainant used as its label “Standard T. O. C. Company,” enclosed in an ellipse, another corporation which stamped on its goods the words “superior quality,” enclosed in an ellipse in the position occupied by the words “Standard Company,” together with the initials of its corporate name, “T. O. C. & L. Co.,” will be enjoined from using the initials “T. O. C.” in connection with the ellipse.</p>

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

<p>1. A defendant in equity is entitled to question the jurisdiction of the court for lack of proper service in Umine before answer.</p> <p>2. In a suit by the receiver of a corporation against non-resident directors, to recover money lost to it by reason of their negligence and Improper conduct, the court acquired no jurisdiction in personam by service by publication and mailing only.</p>

<p>1. Complainant studied the situation with regard to the white lead industries outside a certain company, and conceived and formulated a plan for combining them in one company, to do which would require several millions of dollars; procured options on such industries, or opened negotiations for their purchase, and laid the plan before defendant, a capitalist, seeking his co-operation and aid, himself agreeing to contribute, if necessary, as much as $200,000, if defendant would join him therein, and also contribute enough to carry the enterprise through. Defendant expressed a willingness to join him therein, provided an examination of the plan and papers by defendant’s attorneys, and experts confirmed the statements made by complainant to defendant, and such examination confirmed such statements. Defendant, however, availed himself of the information furnished by complainant, and, independently of him, organized a company, and got control of the industries, and made large profits therein.'—Held, that there being but an agreement to enter into a definite agreement, equity could give no relief, but the remedy, if any, was by action at law for wrongful appropriation of the plan.</p> <p>2. A mere idea, unprotected by contract or statute, is not capable of legal ownership.</p>

<p>1. In a suit by a widow against the executor and devisees of her deceased husband for an accounting, based on the husband having stolen a sum of money from her, she was not a competent witness to prove the presence of the husband at the time of the taking, for the transaction began the instant she recognized him.</p> <p>2. Evidence held not to show that a husband stole money belonging to the wife, requiring the dismissal of a bill by her against his executor and devisees for an accounting based on such taking.</p> <p>3. Laches in bringing a suit until it has become impossible to hear both parties, and to ascertain the exact facts, bars a recovery in equity.</p>

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

<p>1. A corporation may adopt a corporate name if not in conflict with the Corporation act, but such adoption gives it no greater right to use it to tile injury of another than if an individual should so act. A corporation cannot appropriate the name or trade marks of another, and thus obtain its business by any simulation or deceit.</p> <p>2. Where the complainant had first adopted as a trade mark or symbol the figure of a black bear, the defendant’s subsequent use of a polar bear as a trade mark or symbol is not an infringement.</p> <p>3. If the commodity which the complainant is selling under a trade name, trade mark or symbol, is offered to the public under a misrepresentation or falsehood, he has no standing in a court of equity, nor can he successfully call upon that court to aid him in preserving to him the right to deceive the public without interruption.</p> <p>4. The complainant’s advertisement of its water as “bottled at the spring,” when in fact it was bottled at a city warehouse, and also the declaration in such advertisement that such water is a cure for certain diseases named therein contrary to the truth, are such misrepresentations as will induce the court to refuse the complainant any relief.</p>

<p>On bill for partition. Heard on petition of administrator for proceeds of sale.</p>

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

<p>1. The issue of income stock by a building and loan association formed under the act of April 9th, 1875 (Rev. Btat. 1875 p. 6fy), authorizing the incorporation of such association, but containing no authority for the issue of such stock, was ultra vires the association.</p> <p>2. Where a building and loan association, formed under the act of April 9th, 1875 (Rev. Btat. 1875 p. -61f), desired to raise money to meet the necessities of its borrowing members, arid issued certificates payable on sixty days’ notice, three years after date, with interest, payment whereof was secured by real estate mortgages or cash deposited with a trustee, the holders of such certificates were not stockholders, but creditors, and entitled to be paid out of the funds held by the trustee in full, subject to no deduction for costs, expenses or premiums, with the further right to participate pro rata with other creditors in the assets of the association, provided the fund held by the trustee was insufficient.</p> <p>3. The association could not escape liability on the ground that, as the' act under which it was formed conferred no borrowing power, the borrowing of the money was ultra vires.</p>

On bill of interpleader by the Polish National Alliance of the United States of North America against Anton Nagrabski and others to determine the rights of defendants in a benefit certificate issued by complainant.

On bill, answers and proofs, and for distribution of residue of the estate of Rachel Yan Iiouten, deceased.

<p>An injunction will issue to restrain the introduction of gasoline into tanks of automobiles inside of a frame building adjacent on three sides to other frame buildings, and against storing automobiles with gasoline in their tanks inside of the building.</p>

On demurrer to bill. This is a bill filed by John Vanderbilt against Henry Mitchell, medical superintendent; Myra L. J. Vanderbilt tod William Godfrey Vanderbilt.

<p>On demurrer to bill.</p> <p>This is a bill filed by Oliver D. G. Vanderbilt against Henry Mitchell, W. H. Lawrence, Myra L. J. Vanderbilt and William Godfrey Vanderbilt. The charges in this bill are practically identical with those in the bill filed by John Vanderbilt against some of the same defendants, which last-named bill is sufficiently set forth in the opinion disposing of the case of John Vanderbilt. The only difference between the bills is as to the relation of the complainant to the cause of action. The complainant in this suit is the brother of John Vanderbilt. He is one of the trustees under the will of Susan Ann Hoogland, and in the event of John Vanderbilt dying without issue, he or his issue will be entitled to a portion of the estate which otherwise would go to the issue of John Vanderbilt.</p> <p>A demurrer is interposed by the defendants Myra L. J. Vanderbilt and William Godfrey Vanderbilt.</p>

On bill, answer, cross-bill, answer to cross-bill, and proofs. The bill in this cause'seeks to foreclose a mortgage secured upon property at Saddle River, New Jersey, in the principal sum of $2,000, dated August 20th, 1895, made by Henry W. Thurston and wife to Theodore Wiedersheim. By Wiedersheim this mortgage, on the 25th day of April, 1905, was assigned to Francis B. Clark, and, on the 23d day of May, 1905, was by Clark assigned to the complainant.

Heard on bill, answer, replications and proofs in open court. Under the above title there were tried three canses, which were consolidated. The other pending suits were by Washburn Brothers Company and by Vanderbeek & Sons Company against the same defendants. The complainants are claimants under the Municipal Lien act.

Heard on bill, answer, replication, cross-bill and answer thereto, and proofs in open court. This is a bill filed by Mina Buttlar against Christian Buttlar. The parties were husband and wife until they were divorced by a decree dated March 24th, 1902. The bill is filed to secure the payment by the defendant to the complainant of money alleged to be due to the complainant under an agreement between the parties dated January 31st, 1894.

Heard on bill and demurrer. This is a bill filed by Martha and Elizabeth WyckofE against William O’Niel, executor of Mary E. Harris. . Mary E. Harris was the aunt of. the complainants.

Heard on bill and plea. This is a bill for partition. The complainants are William A. Mackey and his wife, and the defendants are the persons stated in the bill to have interests in or title to the real estate sought to be partitioned. The real estate in question formerly belonged to Elias J. Mackey and Sarah E. Mackey, his wife, who were the mother and father of the complainant William A: Mackey. John H. Mackey was a brother of the complainant William A. Mackey.

Heard on writ of habeas corpus, return thereto, traverse, and proofs in open court. This is a hearing upon a writ of habeas corpus obtained by Anna Hesselman respecting the custody of her child, in which writ the defendants are August Haas and Amaele Haas, his wife.

<p>Where testimony of a number of disinterested witnesses showed thal the continued operation of defendant’s manufacturing, plant in the same block with plaintiff’s dwelling caused noises and vibrations which prevented the inhabitants from sleeping during the night, plaintiff was entitled to' an injunction restraining' the operation of the plant during the .night, although other residents in the same locality testified that their rest was not disturbed.</p>

Proceedings with respect to the claim of Elizabeth A. Brockhurst. Tbe bill in this cause was filed on the 5th day of May, 1905, and is the ordinary bill for the dissolution of a partnership and an accounting, together with a prayer for a receiver.

Heard on appeal from the decision of a receiver refusing to allow the claim upon the part of certain shareholders to participation in .the distribution of the assets of an insolvent building and loan association.

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

<p>On appeal from a decree of the Morris county orphans court.</p>

<p>1. The orphans court has no power under the Orphans Court act (P. L. 1898 p. 789 § 197), authorizing the court in causes respecting the probate of a will to order the costs of the litigation to be paid out of the estate of the deceased, to allow proctor’s fees payable out of the estate of the decedent in proceedings to open the probate of his will, on the ground that some of the next of kin had not been cited on the application for probate, and that the withdrawal of -a contest had been induced by fraud.</p> <p>2. Where an executor has been discharged, and a distribution of the estate has been made, the orphans court has no jurisdiction to make an order which imposed a counsel fee as part of the costs and expenses of litigation upon the decedent’s estate.</p>

<p>On appeal from a decree of the Somerset county orphans court dismissing an appeal from the order of the surrogate admitting to. probate the. last will and testament of Jonathan H. Moore, deceased.</p>

<p>1. An executor is responsible for the amount of interest and penalties imposed under Gen. Stat. § SSlfi ¶ SS6, regulating the payment of collateral inheritance tax, resulting from his neglecting to pay such tax' within the limit of time required to prevent such additional charges on the state.</p> <p>2. Evidence examined, and held not to justify the allowance for counsel fees claimed by the executor.</p> <p>3. As an executor is not entitled to commissions until they have been settled and allowed, if he takes them before that time he occupies the position of a borrower of the amount so taken, and is chargeable with interest thereon to the time of his accounting.</p> <p>4. Evidence examined and held insufficient to sustain an allowance for traveling expenses incurred in connection with the business of the estate.</p> <p>5. An executor should not be charged with interest on moneys in his hands previous to the accounting, where it appears that he received such moneys not in bulk, but in varying sums as from time to time the amounts due on the different securities were paid, and where he settled his account promptly, he being under no obligation to make temporary investments of it.</p>

As I interpret the contract, there appears to be two branches to it. Along the lines of one a conveyance was to be made to certain individuals, provided they would buy and conduct a summer school at this place called Avalon.

<p>On appeal from a decree of the court of chancery, advised by Vice-Chancellor. Grey, whose opinion is reported in 70 N. J. Eq. 396.</p>

In that proceeding a decree of’inter-pleader was taken, the money paid into court, and this contest arises over the disposition of the fund. The mortgage in question belonged to Mrs. Elizabeth Cron, by virtue of an assignment made to her some years ago.

<p>Where a complainant seeks to protect a trade name from unfair competition, he will not be refused relief merely because for several years he circulated catalogues and price lists containing false statements as to his exclusive right to the name, where it is not proved that the trade name owes its value in a material degree to the false representations, and the publication has ceased prior to the filing of the bills.</p>

On appeal of Charles C. Black, receiver, from a decree of the court of chancery, advised by -Vice-Chancellor Stevens, whose opinion is reported in TO N. J. Bq. (L Robb.) 277. The facts -are stated 'in his opinion.

<p>1. Several parties, who had furnished materials to a contractor for the building of a fire-house for a city, served notices of claims against the contractor under the act of 1902 (P. L. 1903 p. S69), and afterward filed bills to enforce their liens upon the contract price due from the city to the contractor. In each bill it was averred that an order had been given upon this fund by the contractor to the Excelsior Terra Gotta Company to pay for materials furnished, which order had been accepted by the financial officer of the city, but averred that the lien of such order was subsequent to the lien of the complainants’ notice.</p> <p>2. The answer to the terra cotta company to- each bill averred that the lien of its order was prior to the lien of complainants’ notice.—Held, that the priority and validity of the order was put in issue by the pleadings.—Held, that it appearing that the answer of the terra cotta company was true, the order operated as an assignment of such portion of the fund, due the contractor, and only the remaining portion of the fund remained to be distributed to the claimants.</p>

<p>On appeal from a decree of the court of chancery, advised by Yice-Chaneellor Grey, whose opinion is reported in 70 N. J. Fq. (4 Robb.) 864-</p>

<p>On appeal of Robert C. Pruyn from an order of the court of chancery, advised by Vice-Chancellor Stevens, whose opinion is reported in i&9 N. J. Fq. (3 Robb.) 211.</p>

<p>On appeal from a decree of the court of chancery, advised by Vice-Chancellor Emery, whose opinion is reported in 70 N. J. Fq. (J/. Robb.) @18.</p>

On cross-appeal by defendants from a decree of tbe conrt of chancery, advised by Vice-Chancellor Bergen, whose opinion is reported ante p. 7S6.

It appears that the Chelsea Beach Company purchased a large tract of land near Atlantic City for the purposes of development, and caused it to be surveyed and divided into streets, avenues, lots and blocks, and then began the sale of the property under certain restrictions.

<p>On appeal from a decree of the court of chancery, advised by Vice-Chancellor Emery, whose opinion is reported in 10 N. J. Eq. ('4 Rolb.) 244-</p>

<p>On appeal from a decree of the court of chancery, advised by Chancellor Magie, whose opinion is reported in 70 N. J. Eq. {Jf Robb.) S.</p>

On appeal of defendant Honora Einerty from a decree in the court of chancery, advised by Vice-Chancellor Garrison, who filed the following opinion: Ellen Cunningham, who married a man named Kelly, and thereafter seems to have used indifferently either her maiden or her married name, died on the 13th of January, 1904.

<p>On appeal from a decree of the court of chancery, advised, by Vice-Chancellor Emery, whose opinion is reported in TO N. J. Fq. (1). Robb.) 231.</p>

<p>On appeal from a decree of the court of chancery, advised by Yice-Chaneellor Stevens, whose opinion is reported in 70 N. J. Fq. (4 Robb.) 865.</p>

<p>On appeal from a decree of the court of chancery, advised by Vice-Chancellor Bergen, whose opinion is reported in 70 N. J. Fq. (4 Robb.) 577.</p>

<p>On appeal from an order of the court of chancery, advised by Yice-Chancellor Stevens, whose opinion is reported in 70 N. J. Eq. (J/. Robb.) £96.</p>

<p>On appeal from a decree of the court of chancery, advised by Vice-Chancellor Pitney, whose opinion is reported in 70 N. J. Eq. (J Robb.) 71.</p>