Volume 75 — New Jersey Equity Reports

The Provident Life and Trust' Company of Philadelphia, trustee for mortgage bondholders, having filed a petition praying leave to file a bill in the Hnited States circuit court for the district of New Jersey for the foreclosure of a mortgage given by the Camden and Trenton Railway Company to said trustee for the security of bondholders, and Daniel ICillian, one of the bondholders, having filed an answer to the petition, the matter came on for hearing before the chancellor…

<p>Testator in general terms gave half his estate to his widow for life, and at her death to his issue surviving her; and besides the general rule of construction in such a case, without more, that the personal property is to be converted and invested by the executors, and the income only paid to the life tenant, other clauses expressly authorizing the executors to sell any or all of the personal property and invest the proceeds, and to sell the real estate, and expressly directing that the management of real estate in which O. was interested with testator should continue with him., indicated that the whole estate should be converted by the executors and invested by them; they paying the income to the widow.—Held, that a contrary intention, that she should have possession of the principal, overcoming this, was not shown by the provision expressing the desire of testator that his widow should, out of his personal estate,' make such gifts to certain friends tpreferably money to two of them) as they should desire and the executors should approve.</p>

<p>1. Where the property is not divisible, dower must be assigned out of the rents.</p> <p>2. Under Gen. Stat. 1S95 p. 1215 § 1, endowing a widow for life of the full and equal third of all lands, &q., the widow, in determining her divisible portion of the rents, is not entitled to the benefit of improvements made by the alienee of the husband after his purchase.</p> <p>3. In working out the endowment of rents on the basis of value at the time of alienation without regard to subsequent improvements, the gross rentals should be ascertained, and the widow allowed one-third after proper deductions.</p> <p>4. In arriving at the divisible portion of the -widow in the rents to be paid to her in case the land is not portionable, the taxes must be deducted.</p> <p>5. In working out an endowment of rents the widow is chargeable with improvements and repairs made by the alienee which were necessary to put the premises in a tenantable condition, and the amount expended should be charged against the property as a principal fund, and the alienee given credit on his account for interest on such fund.</p>

<p>A real estate agent, who had land for sale, was asked by complainant to carry specific offers to the owners who had employed him to sell it. He had no discretionary authority, and received no commission from complainant. Upon refusal of the last offer, without waiting to ascertain if complainant wished to make further offers, the agent sold the land to his own wife, who had knowledge of her husband’s relations with complainant ; she paying for it with her own money.—Held, that there was no such fiduciary relation between complainant and the agent as would make the agent’s wife a constructive trustee.</p>

<p>1. A case involving the rights of the parties in case of conflicting easements is one of equitable, and not of- legal, cognizance, and appertains to 'the exclusive, and not auxiliary or concurrent, jurisdiction of chancery.</p> <p>2. The case of the rights of two tenants in common of an easement is one of equitable cognizance, and equity may use any remedy appropriate to the circumstances, either preventive or mandatory, adequate to promote and secure the joint user in such a way as the law requires in view of the particular situation.</p> <p>3. The test of equity jurisdiction in a case affecting the rights of tenants in common of an easement is the existence of actual conflict; and, if there is no conflict, there is no jurisdiction.</p> <p>4. The court of chancery does not ordinarily compel a corporation to do its duty, the performance of which, neglected or contested, is enforced by the supreme court by mandamus.</p> <p>5. The court of chancery has power to compel railroad elevation over highways, if that is the only way in which joint user can be properly secured and enjoyed.</p> <p>6. In view of the legislation of this state recognizing that railroads may cross streets at grade, it cannot be held that grade crossings are per se illegal structures even in cities, or that streets are not safe, in the legislative sense of that word, merely because they are crossed at grade by a railroad crossing, but the situation must be such that nothing but track elevation will protect the public.</p> <p>7. It cannot be maintained that streets become unsafe and inconvenient when more than one track is laid across them.</p> <p>8. If a street is so encumbered with -railroad tracks that the public is practically shut out from using it, the appropriate remedy in such a case is an injunction restraining their excessive use; neither party being at liberty to destroy the right of the other.</p> <p>9. If the number of tracks crossing a street be not excessive, the question whether trains run over them with such frequency and such speed and at such an angle or with such curves, that the joint user of the crossing would be practically gone, and so necessitate elevation of the tracks, is one of fact, to be determined according to the circumstances of the case.</p> <p>10. Tracks cannot be built over a street, or used thereon for the convenience of factory or yard or station purposes, and thus injuriously affect the public traffic over the highway.</p> <p>11. The right of a railroad over a highway is a right of passage, with its reasonable incidents, and nothing more.</p> <p>12. Evidence held not to show that a railroad elevation over a street was the only way in which joint user could be properly secured and enjoyed.</p> <p>13. A bill praying, not only for the depression or elevation of railway tracks at a street crossing, but also for general relief, is broad enough to warrant an injunction against the use in the highway of certain tracks illegally obstructing the way, and the unlawful use of another track for an unauthorized purpose.</p>

<p>Final hearing on bill, answer, replication and agreed state of the case.</p>

<p>1. In a suit to enjoin the use of a corporate trade-name and to recover profits diverted by such use, evidence considered, and held to show that the act of defendant company, in hiring one who had been a member of plaintiff company and placing his name at the head of the former name so as to read L. Martin & Wilckes Company, was with the fraudulent intent to imitate the plaintiff’s name, L. Martin Company, and constituted unfair competition.</p> <p>2. A corporation, apart from statutory provision, has not the right to so use an individual’s name, in forming its corporate name, as to imitate a prior corporate name, engaged in the same business, so closely that the public would be deceived; the maxim, sie utere tuo ut aliemim non Icedas, applying to everything a man has, including his name.</p> <p>3. Laws April 21st, 1896 (P. L. p. 880 eh. 185 § 8), providing that no name shall be assumed by a corporation already in use by another corporation, or so nearly similar thereto as to lead to uncertainty or confusion, does not merely impose a duty upon the attorney-general of the state, but protects all corporations created under it in the use of their corporate names, and hence an individual name, so used as to imitate a prior corporate name having the same individual name, by which the public are deceived, is within the terms of the statute, and its use may be enjoined.</p> <p>4. Where it is found that a name adopted by a corporation is so nearly similar to a prior corporate name, both corporations being engaged in the same business, as to entitle the latter to an injunction, the injunction should merely restrain the former from carrying on the same kind of business unless the name be changed so as to clearly and unmistakably distinguish the t\vo corporations and their respective business, and it cannot permit the rise of the same name with only qualifying words to show that the company is a different one, as the unchanged corporate name would still be deceptive to the public.</p> <p>5. The court of chancery of New Jersey has general jurisdiction in all cases of fraud, and the .only question as to jurisdiction, where there is fraud, is the propriety of exercising the power which the court undoubtedly has.</p> <p>G. In all cases in which the jurisdiction of the court of chancery, based on fraud, is invoked to obtain purely equitable relief, such as an injunction, the court should proceed to accomplish complete justice and enforce all the complainant’s rights arising out of the fraud, including the ascertainment and award of all damages caused by the'fraud, unliquidated as well as liquidated.</p> <p>7. Where a court of chancery has taken cognizance of a suit for unfair competition in the use of a corporate trade-name, in which an injunction is sought as the main remedj7, the court may grant the injunction and make an assessment of damages or authorize an accounting for profits claimed to have been diverted by the use of the deceptive corporate name as an incidental relief.</p> <p>8. Where in an equity suit for injunction to restrain the use of a corporate name similar to a prior corporate name, an award of damages is ordered incidental to the injunction, it is proper in the absence of a request to have the court determine the matter to refer the assessment of damages to a master.</p>

On application for preliminary injunction. This is an application on behalf of Reilley and three other complainants against Curley and another to obtain a preliminary injunction.

<p>On application for preliminary injunction.</p>

The bill is filed by a widow against the executor of her deceased husband to recover money alleged to have been loaned by her to her husband in his lifetime.

Oil bill, answer, replication and proofs. One Wills was the owner of certain capital stock of defendant corporation and sold the same to complainant. At the time of the sale Wills delivered to complainant the certificate representing the shares and executed on the back of the certificate the usual assignment and irrevocable power of attorney authorizing its transfer on the books of the company.

On final hearing on bill to quiet title to land. The bill is filed by complainant against her two minor children to quiet the title to certain real estate, which was owned by the grandmother of the two minors at the time of her decease and disposed of by her will. In effect the bill is to procure a construction of the provisions of that will touching certain real estate therein referred to.

On bill, answer, replication and proofs. The bill is filed to set aside two certain deeds of conveyance of real estate made January 25th, 1906, by John Bowyer, now deceased, to his son, William W. Bowyer. A few days before the date of these deeds John Bowyer employed William Casselman, an attorney-at-law, to prepare his will and to draw these deeds.

<p>1. The language “mortgagees in good faith,” as used in P. 1902 p. J87 § 1¡, providing that a chattel mortgage not accompanied by immediate delivery, followed by actual and continued change of possession, shall be absolutely void against mortgagees in good faith, unless the mortgage, having annexed thereto a prescribed affidavit or affirmation, bo recorded as directed, &c., includes a mortgagee whose mortgage secures a preexisting indebtedness.</p> <p>2. A “subsequent» chattel mortgagee in good faith” is one who receives his mortgage without knowledge of the existence of a prior mortgage.</p> <p>3. P. L. 1902 p. 1¡81 § 1/ provides that a chattel mortgage not accompanied by immediate delivery, followed by actual and continued change of possession, shall be absolutely void as against mortgagees in good faith, unless the mortgage, having annexed thereto an affidavit stating the consideration, be recorded as directed, &c.—Held, that in the absence of actual notice of a prior mortgage or the record thereof, the good faith of a subsequent mortgagee is not destroyed by the constructive notice afforded by a record containing a false affidavit touching the consideration, and the subsequent mortgage will receive the protection of the statute.</p>

<p>1. It being contrary to public policy to permit a director of a corporation to freely contract with the corporate body, such contracts are voidable at the option of the corporation.</p> <p>2. A corporation must exercise its right to avoid a contract with a director within a reasonable time, the length of which is dependent on the circumstances of a given case.</p> <p>3. Where a corporation elects to avoid a contract with a director, equity will place the parties in statu quo by requiring payment of what the corporation has received.</p> <p>4. A director of a corporation occupies a fiduciary relationship to it in the nature of that of a trustee to a cestui que trust.</p> <p>5. Since the stockholders of a corporation owe no fiduciary relation to it, all of the stockholders by mutual agreement may authorize the corporation to contract with a director, or may ratify such a contract already made which they believe to be beneficial to the corporation.</p> <p>6. While the .duty to sue to cancel stock issued to promoters without adequate consideration is primarily in a corporation, a stockholder may sue for such relief, where the control of the corporation is in such interests that it would be futile to expect that it would prosecute the suit with vigor.</p> <p>7. A corporation voted certain stock to a promoter in return in part for a mail order system for the sale of the corporation’s product. Complainant for several years acted as a stockholder, director, and secretary of the corporation, with knowledge of such transaction, and, while the system was probably worth much less than what the corporation paid for it, complainant made no objection to the contract until after the system became obsolete, and until it was practically impossible to determine its value at the time the contract was made, nor until after the stock increased greatly in value, because other profitable means of disposing of the corporation’s product were devised.—Selcl, that complainant was barred by laches from maintaining a suit on behalf of the corporation to have the contract set aside.</p>

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

<p>1. Attorneys and solicitors are officers of the court, and the court may deal summarily with breaches of duty and privilege on their part; but, the relation between a party and the opposite party’s solicitors not being that of solicitor and client, a controversy between them would not justify the exercise of the summary jurisdiction.</p> <p>2. It is established practice in settling pending suits for parties to agree upon the taxable costs without a taxation by the clerk, and the court should always support the settlements, unless they are affirmatively shown to be unjust, oppressive, or illegal, or to have been induced by unfairness.</p> <p>3. One entitled to a taxation of costs may waive his right.</p> <p>4. Where complainant’s solicitors furnished the amount of their charges to defendant’s solicitor, upon negotiations to settle the suit, and offered to have their costs taxed by the clerk, and defendant’s solicitor did not accept the offer, but agreed that the amount should be paid by his client, the failure to accept the offer was a waiver of the right to have the costs taxed.</p>

<p>1. A contract to convey lands can be specifically enforced, though it is signed by the vendor only, where the purchaser has paid all the price to be paid in cash, and has entered into possession.</p> <p>2. A unilateral contract to convey land ceases to be unilateral on the purchaser filing a bill for specific performance thereof.</p> <p>3. On a bill for specific performance, defendant cannot admit that there was a contract, and then set out a materially ’different contract from the one alleged in the bill, making the one so set out binding upon complainant, though the parties are bound by the statements in the answer in so far as they are admissions, or admissions without substantial variation from the bill; and, where defendant admits a substituted contract, complainant can have specific performance thereof, if he chooses to perform it on his part.</p> <p>4. A bill to specifically enforce an oral contract to convey land will be dismissed, where the terms of the contract are uncertain.</p> <p>5. Pure mistake of fact will sometimes defeat specific performance.</p> <p>6. One cannot defeat specific performance of a contract because of the omission of terms therefrom resulting from his own negligence.</p> <p>7. That tÉe purchaser has completed his part of a contract for conveyance of land, and gone into possession, entitles him to specific performance, whether it be under an oral or written contract.</p> <p>8. If the purchaser under a contract to convey lands, suing for specific performance, is compelled to stand upon an oral contract, he can refer to a receipt for part of the purchase-money to show the terms oE the contract.</p> <p>9. Complainant, having bargained for land understanding that he was to receive title free of encumbrances, can insist upon a conveyance free of restrictive covenants.</p> <p>10. Evidence held to entitle the purchaser, under a contract to convey land, to specific performance.</p> <p>11. One taking a decree of specific performance of a contract to convey land must take title subject to the vendor’s wife’s right of dower, unless she voluntarily releases it, since the court of chancery can only compel a wife to release her right in the manner prescribed by statute or in a case of clear fraud.</p> <p>12. In a suit to specifically enforce a contract to convey land, a deed, properly executed and acknowledged by the vendor and his wife, is evidence of her willingness to relinquish her dower. x</p> <p>13. Where, in a -suit to specifically enforce a contract to convey land, it appears that the vendor and his wife have executed and acknowledged a deed to complainant and his wife, the court can decree a delivery of such deed, if complainant will accept it, thus avoiding the necessity of complainant taking title subject to the wife’s dower right.</p> <p>14. If one suing to specifically enforce a contract to convey land would exercise an option to take a deed already made to him and his wife by the vendor and his wife, his wife should be a party complainant, and the bill should allege the execution of the deed and pray for its delivery.</p> <p>15. A bill to specifically enforce a contract signed by one defendant to convey land held by another defendant should show such situation.</p> <p>10. Complainant, in a suit to specifically enforce a contract to convey land, having been in possession since a certain date, should show that fact in his bill.</p>

<p>1. Upon a bill filed by a stockholder, not only on his own behalf but also on behalf of all the stockholders of an insolvent corporation who are situated similarly to himself, after its affairs had been wound up by a receiver, against the receiver and.the other stockholders, for the purpose of having the court declare the equities of the shareholders among themselves with respect to the surplus remaining in the receiver’s hands admittedly belonging to the shareholders, the defendants having moved under rule 213 to strike out the bill for the following (amongst other) reasons: (1) Because the relief prayed for cannot be awarded in a suit brought by a stockholder; (2) because there is no allegation that the receiver was requested to bring the suit, nor of his refusal to do so; (3) for want of equity.—Held, that the bill is good, because the complainant is not attempting to enforce a cause of action which runs to the corporation, but one which affects onlj' the stockholders as between themselves.</p> <p>2. The bill in this case must be treated as one the object of which is to provide for the distribution of the fund in the hands of the receiver, and it is no objection that no specific prayer to that end was appended to the bill, that appearing to be the purpose and object of the suit.</p> <p>3. The admission of fraud charged in the bill which is involved in the form of this motion to strike out disposes of the two remaining objections taken to the bill, the particulars of which objections are set forth in the opinion.</p> <p>4. If there was in fact the fraud which is alleged, the complainant is not estopped from objecting to the questioned transaction or from demanding the cancellation of shares issued in pursuance of it, nor does it involve a rescission of the questioned contract or a restoration of conditions, as' claimed in such remaining two objections comprised in the notice of the motion.</p>

<p>1. The presumption that where a husband pays the purchase-money on a purchase of lands and has the conveyance made to the wife is that an advance or settlement was intended and that in such case no trust could result, is not rebutted by proof of declarations made by the wife to the effect that when she died her husband was to have her property, where it appeared that the wife carried out this idea by providing by her will that her husband should have a life estate in all her property, real and personal.</p> <p>2. Where the wife’s will gave the remainder of the estate to her son, who was sole executor of the will, and the son took an assignment of an outstanding judgment against his father, and after negotiations between the father and the son relative to the payment of the judgment, under an execution issued thereon, the son sold the life estate in the realty and took a sheriff’s deed therefor, thus giving the son the fee-simple title to the lands and depriving the father of his interest under the will, the transaction will be set aside.</p> <p>3. The fiduciary relation which exists between the parent and child will not permit a son to take such an unfair advantage of an aged father.</p> <p>4. The son being the remainderman and executor, and by implication trustee under the will, it became his duty to protect, in so far as he could, the life estate of his father.</p> <p>5. The son having acquired the fee-simple title applied for a loan on mortgage on the property in question to the mortgagee defendant M. M. committed the transaction of the business on her part to the solicitors who had acted as the solicitors of the son in his acquirement of his father’s life estate. There was no proof that M., the mortgagee, had any actual knowledge of the son’s fraud upon his father, but an attempt was made on the part of the complainant to charge her with notice of the transaction for the reason that the solicitors whom she employed knew about it.— Held, this is carrying the doctrine of notice to an agent to an extreme to which the decisions do not now go.</p> <p>6. The rule now is that the knowledge of the agent is chargeable upon his principal whenever the principal, if acting for himself, would have received notice of the matters known to the agent.</p> <p>7. If the mortgagee, M., had acted for herself in the transaction in question she would not have received notice of the matters which were known to the solicitors who acted for her, and therefore their knowledge, if any they had, was not imputable to her.</p> <p>8. Though the complainant, the father, had been in possession with the other members of his' family of the premises intended to be mortgaged, such possession would have been sufficient to charge the mortgagee with notice under the authority of Rankin y. Goar, J¡S N. J. Eg. (1 Dink.) 566.</p> <p>9. Such mortgage is a lien as between the mortgagee and the complainant upon the complainant’s life estate. As between the son and his father, the complainant, a different result would ensue, but the equities between them touching this mortgage lien cannot be worked out in this suit.</p> <p>10. For the reasons stated in the opinion the son should be required to account in this court for any personal property that passed under the will in order that the rights of the life tenant in all the personalty may be ascertained, and in such account this judgment must be awarded to him.</p>

<p>' 1. A corporation authorized by its act of incorporation to purchase and sell land, and to require any grantee to make such improvements as might seem expedient, purchased land, laid out streets, and adopted a resolution fixing a building- line. It then conveyed a tract .subject to the restrictions in the act of incorporation, and bound the grantee and assigns not to violate the act of incorporation or regulations made by the corporation. The tract conveyed was subsequently divided into lots, and conveyed to different persons, subject to conditions and restrictions previously imposed by the corporation.—Held, that such persons were chargeable with notice of the building restrictions contained in the resolution of the corporation, though it appeared only in its complete form in the minute book of the corporation.</p> <p>2. The words "at any time” in a deed by a corporation authorized to purchase and sell lands subject to restrictions, which recites that the conveyance is subject to the restrictions in the act of incorporation, and that the grantee, his heirs, and assigns agree not to violate any of the provisions in the act of incorporation, “by-laws, rules or regulations made by the said” grantor “at any time” refer to the date of the violation, and not to the date of the adoption of the by-laws, rules or regulations.</p> <p>3. To authorize one to insist on restrictive covenants in deeds, and to , invoke the injunctive powers of the court to enforce them, the restrictive covenants must be clear and satisfactory.</p> <p>4. A corporation authorized to purchase and sell lands, and to require any grantee to make such improvements as might seem expedient to secure a uniform development, purchased land, laid out streets and avenues through it, the avenues running at right angles to the streets, and being twenty feet wider than' the streets. It adopted a resolution for a uniform building line “on the main avenues,” and conveyed tracts subject to restrictions contained in rules of the corporation, which the grantee agreed not to violate.—Held, that the restrictive covenant applied not to the streets at all, but applied to each and all of the avenues; the word “main” in the quoted phrase being surplusage.</p> <p>3. Where an owner of land laid it out into streets and blocks, and "by restrictive covenants in the deeds fixed a building line, the fact that a purchaser violated the restriction by the construction of hn open piazza which extended into the restricted area, but did not obstruct the view from adjacent property, did not prevent him from enforcing the restrictions against the adjacent owner; the purchaser’s violation being- immaterial.</p> <p>6. Where an owner of land laid it out into streets and blocks, and by restrictive covenants in deeds to purchasers fixed a building line, the court, in a suit to restrain specific violations of the covenant, was limited to a consideration of the facts relating to the street on which the violations were.</p> <p>7. An owner of land laid it out into streets and blocks, and by restrictions in deeds to purchasers fixed a building line. An owner of a lot on one street sought to restrain the adjacent owner from violating the building restrictions. Of the thirty-six' houses on one side of the street nine were over the restrictive line from one inch to four and one-half inches. There was also an old house at the extreme westerly end of the street which had a closed-in veranda extending over the line a distance of over nine feet. Of the forty-three houses on the other side of the street, eighteen were over the line from two inches to a little over two feet. There was nothing to show that the original owner had consented to the violations.—Held, that the violations were too insignificant in extent and in number to justify the court in inferring a general abandonment of the building restriction, even if the original owner could abandon or release a restriction which it had made for the benefit of all its grantees.</p>

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

<p>On motion, to strike out cross-bill.</p>

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

On appeal of the Trenton Trust and Safe Deposit Company, from the decision of the receiver of the defendant corporation refusing preference of a claim.

Cooper, deceased. The following is the opinion deTvered by Judge Mills in the orphans court: Mills, J. This is a proceeding brought to test the validity of certain paper-writings purporting to be the last will and testament of Esther J. Cooper. The will is dated May 26th, 1900. The codicil accompanying the same is dated March 29th, 1904. A copy of each has been annexed to these conclusions.

<p>On appeal from the Hudson county orphans court on an application for letters of administration on the estate of Nellie Moran, deceased.</p>

<p>1. Pencil erasures on the face of a will are as effectual to cancel the portion obliterated as if done with ink.</p> <p>2. In case of pencil erasures on the face of a will, the question is whether the erasures were intended to be the testator’s final act, or whether they were dependent relative revocation, not final; intention with which the marks were made being the test.</p> <p>3. The presence of pencil marks on the draft of a new will, found in a drawer of testator’s desk after his death, is prima facie evidence that the marks were made by him. and indicate that he was still in a state of dubiety as to the disposition of his property.</p> <p>4. That certain gifts made by a testator are inoperative because of his altered circumstances cannot be urged as a reason for holding that erasures on his will were made animo revocandi.</p> <p>5. If a will is shown to have been canceled for the purpose of making a fresh will, the original is not revoked if no fresh will is made.</p> <p>6. That a testator makes an unnatural will, or allows a will to stand which, by reason of changed circumstances, would be unnatural if made at the particular time, is not a reason for overthrowing it.</p> <p>7. Irrespective of intention testaments can only be revoked according to the formula prescribed by statute.</p>

<p>On appeal from an order of the Essex county orphans court refusing to remove the respondent from his office of executor and trustee.</p>

<p>On appeal from orders of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 73 N. J. Eq. (3 Buch.) 7£.</p>

<p>On appeal from a decree advised by Vice-Chancellor Howell, whose opinion is reported in '7f N. J. Fq. (J¡. Buck.) SW.</p>

Ou appeal from a decree of the court of chancery advised by Advisory Master Pitney. The bill was filed for a discovery and account of the assets in the hands of the defendant and a decree that the complainant was the owner of the same and requiring the defendant to deliver all of its property to the complainant. The history of the organization is set forth in the opinion of Vice-Chancellor Pitney in State Council v. National Council* 'll N. J. Eq. (1 Buch.) 488 (at p. 487).

<p>1. On a bill to enjoin unfair competition a court of equity, upon granting an injunction, may also decree an account of the profits made by the defendant by means of the unfair competition.</p> <p>2. On a bill to enjoin unfair competition it is not permissible for a court of equity, upon granting an injunction, to decree that the defendant shall account for damages suffered by the complainant in addition to accounting for the profits made by the defendant.</p>

<p>On appeal from a decree advised by Vice-Chancellor Learning, whose opinion is reported in 73 N. J. Fq. (3 Buck.) B70.</p>

<p>In the absence of special equities, the court of chancery has no jurisdiction over assessments made in the course of municipal improvements, and will not interfere by injunction to restrain the collection of such assessments merely because the complaining party, by his own laches, lost his remedy at law.</p>

<p>On appeal from a decree of tbe court of chancery advised by Yice-Chancellor Learning, whose opinion is reported in 73 N. J. Eq. (3 Buck.) Sli-ff</p>

<p>On the foreclosure of a mortgage the defendant set up in the answer the defence of usury.—Held, that the proofs submitted sustained the defence and that the defendant was entitled to a decree so adjudging.</p>

<p>■■ On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell.</p>

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

<p>On appeal from a decree of the former chancellor advised by Vice-Chancellor Howell, whose opinion is reported in '67 Atl. Rep. 690.</p>

<p>On appeal from an order of- the former chancellor advised by Vice-Chancellor Learning, whose opinion is reported in 72 N. J. Fq. (2 Buck.) 780.</p>

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Howell.</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in 1% N. J. Eq. (£ Buck.) J/.66.</p>

<p>On appeal from a decree of the former chancellor advised by Vice-Chancellor Garrison, whose opinion is reported in 74 N. J. Eq. (4 Buck.) 221.</p>

<p>On appeal from a decree of the former chancellor advised by Vice-Chancellor Garrison, whose opinion is reported in 1% N. J. Eq. (i)■ Buck.) 2021.</p>

<p>On appeal from a decree of the former chancellor advised by Vice-Chancellor Howell.</p>

<p>On' appeal from an order of the court of chancery advised by Vice-Chancellor Learning.</p>

Heard on bill, answer, replication and proofs. Complainants are the heirs-at-law of Matilda Baker and the children of Matilda Baker and her husband, Joseph W. Baker, the defendant.

<p>On application under leave reserved in decree.</p>

<p>1. Any defendant, as to whom proyisions for foreclosing .his right of redemption are expressly made by the final decree on foreclosure, cannot be denied the right of redemption pending sale, by application in the suit itself; and, under section 30 of the Chancery act {Rev. J90&), providing for making a person a party to a suit, either before or after an interlocutory or final decree therein, this application to be made a party to the suit itself, if the right exists, can be made by a purchaser after decree.</p> <p>2. The right of redemption on foreclosure, not being bj' the terms of the final decree cut off till sale, continues till that time.</p> <p>3. The decree itself on foreclosure does not operate as a merger of the debt, or of the estate of the mortgagee, but it does fix finally, as between the parties and those claiming under them, the time and method of foreclosing the right of redemption; and, as this is made on the application of complainant, who will have the right to enforce it by execution, it would seem to follow necessarily from the nature of the decree that every defendant, or claimant under him, whose right of redemption is for complainant’s benefit, made subject to foreclosure on the sale, must still have the right of redemption after decree.</p> <p>4. Before any decree for sale taken by the first mortgagee, or at least before the filing of the bill to foreclose, a subsequent encumbrancer, in order to redeem against the first mortgagee’s consent, must show special equities.</p> <p>5. By electing to take decree against subsequent encumbrancers and to have a sale foreclosing their equities of redemption, the first mortgagee must, pending the sale, proceed subject to their right of redemption, as the decree in such a case, at least if complainant is proceeding to sale under his execution, creates a special equity, which leaves defendants the absolute right of redemption pending the sale.</p> <p>6. The manner of redemption pending sale on foreclosure, and the persons entitled thereto, are matters which should be settled by application in the suit itself, in order to control t lie execution; and, as equities as to the right of redemption may exist between different defendants, notice of the application, if necessary, should be given to the defendants who might be affected, as well as !0 complainant, and so a decree providing for a sale only, and not for redemption, must, if complainant so insists, be so controlled or modified on application for further directions in the suit or to control the execution, and cannot be affected by a mere payment to the sheriff.</p> <p>7. The rights of a complainant, given by a decree on foreclosure, should not be varied, without his consent, unless by a subsequent order of court.</p> <p>8. A second mortgagee will be entitled to redeem pending sale, on payment of the amount of a decree on foreclosure of a first mortgage, with interest and sheriff’s costs, and also the amount paid by a purchaser of the ¿(cree for insurance on the premises since his purchase, which he is cm-'iled to add to the decree, as the original mortgage covered such insurant which had expired; but, as against subsequent encumbrancers without notice, he could not add to the decree an amount previously deducted tor payments made by the mortgagor, which inure, by operation of law, to the benefit of the subsequent encumbrancers.</p> <p>9. The payment on redemption pending sale on foreclosure must be made to complainant, or his solicitor, within a time to be fixed.</p> <p>10. On redemption by a second mortgagee pending sale on foreclosure of a first mortgage, he is entitled to the bond and first mortgage uncanceled, and his right to such redemption and delivery cannot be prejudiced by a supplemental bill to add to the decree, filed without notice to parties adversely affected.</p> <p>11. Under strict practice, a supplemental bill to add to the terms of a decree cannot be filed without notice, at least to parties adversely affected.</p>

<p>1. Where an original bill was demurred to, and the demurrer was sustained upon the ground (1) because it showed nothing more than an agreement to make an agreement, and (2) because it appeared that complainant was seeking to recover profits alleged to have been realized from the embodiment in a corporation of a scheme or idea communicated by complainant to defendant, this scheme or idea not having been protected by contract or statute against appropriation, and therefore not capable of legal ownership after communication; and such bill was thereupon amended with a view by additional allegation to cure its original defects—Held, that notwithstanding the changes in phraseology the bill as amended showed nothing more than an agreement to make an agreement.</p>

<p>1. The rules governing the liability of a party in possession of land, required to account for rents for the benefit of a successful claimant to the whole or a part of such land, vary according as such party occupies the position of trustee, mortgagee in possession, tenant in common, or tenant in possession by fraud.</p> <p>2. A suit to set aside a deed of gift on the ground that the conveyance was substantially all of the donor’s property, and that, in making it, the donor did not have proper independent advice, differs from a suit to set aside a deed of gift on the ground of the fraud of the donee, and in the former case the improvident conduct of the donor, in which the donee may not have participated and of which he may not have had notice, constitutes the fatal defect, while in the latter it is the voluntary conduct of the donee which avoids the deed.</p> <p>3. Where a deed of gift was set aside as improvident under the rule of independent advice, the only wrong of the donee, who took no part in the procurement of the deed, consisted of an inequitable retention of title after receiving notice of the facts making the title void or voidable as to the donor or his heirs.</p> <p>4. A deed of gift which may be set aside on the ground of the improvident conduct of the donor, in which the donee did not participate, may be ratified by the donor or his heirs.</p> <p>5. A donee in a deed of gift, set aside on the ground of the improvident conduct of the donor in which the donee did not participate, is not chargeable with the rental value of a'part of the premises, which she did' not occupy, from which she received no rent, and which she kept vacant for the occupancy of the donor’s heir, who obtained the decree setting aside the deed.</p> <p>C. A donee in a deed of gift, set aside at the suit of an heir of the donor on the ground of the improvident conduct of the donor, cannot, when accounting for the profits while in possession of the premises, obtain an allowance for insurance policies, which she took out in her own name and for -her own benefit and without the knowledge of the heir.</p> <p>7. A donee in a deed of gift, when accounting for the profits to the heir of the donor obtaining a decree setting aside the deed on the ground of the improvident conduct of the donor, cannot charge for services personally rendered in taking charge of the premises and collecting the rents.</p> <p>8. The money loaned by a donee in a deed of gift to an heir of the donor obtaining a decree setting aside the deed on the ground of the improvident conduct of the donor, and directing the donee to account to the heir for the rents of the premises, is not available as a set-off against the rents, especially where the order of reference merely directs the master to make both parties all just allowances, which relates only to the subject-matter of the accounting.</p> <p>9. Where the court of errors and appeals set aside a deed of gift at the suit of an heir of the donor, on the ground of the improvident conduct of the donor, and directed the donee to account to the heir for the rents of the land and pay over to him a specified part thereof, the donee making-no claim in such suit for money advanced to the heir for the support of himself and family, could not enforce a claim for such advancements, when called on to account for the rents.</p>

<p>Bill for specific performance of covenant to renew lease. On motion for an injunction to restrain dispossession proceedings at law and counter motion under rule 213 to dismiss bill.</p>

By consent of counsel these two cases were tried together. Heard on bills, answers, replications and proofs in open court. These are bills to quiet title, aud the sole answering defendant is the Central Trust Company of New York. The complainants each claim to own the lands in dispute by virtue of a deed made by the Passaic Water Company to William H. Blauvelt on the 21st of May, 1873. Each of the complainants traces his title back to said William H. Blauvelt.

<p>1. Receipts, written by the mortgagor and signed by the mortgagee, acknowledging payments on the mortgage debt, must be taken most strongly against the mortgagor in determining whether they were for payments on the principal or interest.</p> <p>2. A debtor may direct the application of payments, and if the creditor receives the money he is bound to apply it as directed, though he does not assent to such application.</p> <p>3. Where the debtor fails to direct the application of payments, the creditor may appropriate them as he desires.</p> <p>4. The court can only apply the money where the debtor and creditor fail to direct its application to a particular indebtedness.</p> <p>5. Where the creditor is entitled to appropriate payments on the indebtedness, on the debtor’s failure to do so he may make the appropriation at any time before a controversy arises between them as to its appropriation.</p> <p>6. In a suit to foreclose a mortgage for default in payment of interest alleged to have accrued April 1st, it was unnecessary to amend the complaint so as to allege a default on July 1st, when it in fact occurred.</p>

Bill of interpleader. Heard on bill, answer of one defendant, and proofs in open court. This is a bill filed by a beneficial society to cause two claimants of a fund it holds to- interplead. The bill sets up that by its certificate, No. 7717, issued to Joseph Knaus, it was obligated, upon his death, to pay the sum of $400 to his wife, Anna Knaus.

<p>A covenant in a deed of riparian lands, providing for a line for solid filling and beyond that an exterior line for piers, and stipulating that the land beyond the solid filling line shall not be used for any purpose except the erection of a pier or piers thereon under which the tide may ebb and flow, is not violated by the erection of a boat house on the piers resting 'on the land, since, so long as the land between the line of the solid filling and the exterior pier line has nothing erected on it except piers, the covenant is not violated. The word “pier” generically means a support, and in its precise use the absence or presence of water surrounding it is immaterial, though its customary use is with respect to projections into water.</p>

<p>Under the conditions of a master’s sale that the property was sold free of encumbrance, the purchaser did not take the property free from an improvement assessment, confirmed after the confirmation of the sale, but before delivery of the deed, and cannot have the amount of an assessment which became a lien before delivery of the deed paid out of the purchase price, and so get a title free of encumbrance.</p>

Heard on bill, answer, replication and proofs in open court. This is a bill filed by the complainant, who is the owner of real estate in the city of Passaic, to restrain the defendants from stringing and rising certain wires, to convey electricity, on poles in front of the complainant’s property. The issues and facts will be fully stated hereafter.

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

<p>1. A railroad company will not be enjoined from withdrawing from a railroad station the personal attendance of an agent, though the railroad! contracted with an individual that .one be kept, but the individual will be remitted to his suit for damages, as public policy requires that railroads be free to serve the public without being hampered by private-contract.</p> <p>2. Any right which the public have to compel a railroad to maintain, a station at a certain point is a legal one, enforceable by mandamus, and not by injunction to prevent the discontinuance.</p> <p>3. Since by act May 15th, 1907 (P. L. 1901 p. 1/1¡8), a railroad commission was formed giving it control over railroads generally, any question as-to the right to prevent a railroad from discontinuing a railroad station should in the first instance be submitted to the commission.</p>

Heard on bill, answer, replication and proofs in open court. This is a bill to foreclose a mortgage, and the facts will be stated in the opinion.

On bill for injunction. On motion to dismiss. The bill avers that complainant agreed to supply the labor and material for certain plumbing in nine houses for defendant at the price of $265 per house, and entered upon the work pursuant to the agreement; that thereafter defendant 'asked complainant to furnish him with a written memorandum of the contract price for the purpose of enabling defendant to fie it with his papers; that complainant accordingly supplied the memorandum…

On. motion to strike ont part of answer. The bill is filed to foreclose a purchase-money mortgage made-by defendants to complainant.

On bill for receiver of a partnership and an accounting. The bill is filed by two of the four partners who comprise a commercial copartnership with its place of business at Bridgeton, New Jersey, and seeks the appointment of a receiver to wind up the business and also an accounting by the two defendant partners, who are in possession of the assets of the business.

On bill to compel defendant to apply certain moneys to complainant’s claim. Heard on bill, answer, replication and proofs.

Bill to set aside conveyance of real estate. Heard on bill, an-SAver, replication and proofs. The bill seeks to set aside a conveyance of certain real estate-made by complainants to defendant, February 6th, 1891’.

On bill and demurrer. The bill seeks an ascertainment by this court whether a certain trust created by a deed of trust referred to in the bill now exists, and prays that if the trust is found to exist it may be construed and enforced. Defendants Robert D. Warren and Caroline C. Warren have demurred to the bill and specified as grounds of demurrer the existence of an adequate remedy of law and want of equitable jurisdiction over the subject-matter disclosed by the-bill.

On bill and demurrer. The bill discloses the following facts: That complainant and the two defendants wore on June 18th, 1903, mutually interested in a certain municipal contract standing in the name of Charles E. Anen, and on that date made a settlement whereby complainant and defendant Demetrio Loprete surrendered to defendant Michael Loprete their rights in that contract for $1,500 in cash, but upon the express condition that a new contract should be entered into by the…

On bill of interpleader and demurrer. Tbe bill filed by complainant corporation alleges that it is engaged in tbe business of warehousing goods and chattels for hire and seeks a decree to compel two adverse claimants to certain chattels heretofore deposited with complainant for storage to interplead and settle their respective rights to the chattels so deposited. Defendant Joseph M. Rector has demurred to the bill for want of facts to support equitable jurisdiction.

<p>On final hearing on bill to impress a trust on real estate.</p>

<p>1. Where a father, in expectation of being sued for libel, transferred all his property to his son for an expressed consideration of $16,500, only $5,000 of which the son claimed to have paid, and there was grave doubt as to whether he ever paid anything, there being neither change of possession of the property nor of the instruments evidencing the transfer, the son was chargeable with knowledge of the facts and as a knowing participator in the transaction.</p> <p>2. Where a father, in contemplation of being sued for libel, conveyed all his property tQ his son to prevent its seizure under any judgment recovered against him, such conveyance was subject to attack by existing creditors, including the persons whose threat to sue induced the transaction, and by subsequent creditors able to prove actual fraud.</p> <p>3. Where a father conveyed all his property to his son to prevent threatened litigation, a bank, which did not come into existence until nearly five years after the conveyance, could not sue to set the same aside and subject the property to a judgment on a debt contracted over ten years after the conveyance; it being impossible to say under such circumstances that there was intent on the father’s part to defraud the bank.</p> <p>4. Where, in a suit by a bank to set aside an alleged fraudulent conveyance, complainant did not claim that it permitted the debtor to incur the obligation on the faith of his reputed ownership of the property, it would be presumed that complainant had knowledge of the conveyance at the time the debt was incurred.</p>

<p>On petition for custody of child.</p>

<p>1. Upon a bill filed to restrain the further prosecution of an attachment suit, all the proceedings therein including the auditor’s sale and auditor’s deed were complained of upon two grounds, viz.: (1) Because the attachment proceeding was against B. only whereas it was based upon a covenant made by him and his wife contained in a deed made by them to the plaintiff in the attachment suit comprising real estate owned by her in her own right, and (2) because the proceeding was surreptitiously and oppressively carried on without B.’s knowledge and is therefore as to him constructively fraudulent and consequently void. It appeared upon the hearing that the writ of attachment was issued upon the filing of an affidavit in the usual form against non-resident debtors stating an indebtedness by B. to the plaintiff which, it further appeared, grew out of the payment of a municipal lien affecting real estate comprised in a deed'of conveyance executed by B. and his wife, she being the owner of said real estate in her own right, to the plaintiff therein, who thereupon caused the writ to be issued against B., and it did not appear that B. had any notice whatever of the proceeding.-—Held, (1) assuming that an action for damages may -be cognizable in the law court upon the ground that the damages in the particular case were matter of calculation, nevertheless, the covenant is a joint one binding both husband and wife jointly and not severally, and they must therefore be jointly sued, and it appearing that she was also his joint debtor and residing in this state at the time of the commencement of the attachment suit, there is an irregularity in the attachment proceeding, but whether this court would have jurisdiction to entertain the complaint on that ground alone it is not necessary to decide. Held further, (2) after an examination of the evidence relating to the second objection respecting the manner in which the attachment was issued and the proceedings conducted, in view of the circumstances of this case, considering the severance of the obligation, the surreptitious manner of conducting the attachment proceeding, the fact that the lot of land comprised in the auditor’s deed (the property of B. levied on), worth from $750 to $900, was purchased by the plaintiff in attachment for $25 subject to something over one hundred dollars in liens, it would not be equitable to permit the plaintiff in attachment to avail itself of the proceedings and that the auditor’s deed and all the proceedings upon which it is formed would be set aside.</p> <p>2. The two principles decided in this class of eases are these, viz.: (1) That a defendant in a judgment at law who has a defence which he might have made successfully at law if he had had an opportunity to set it up, but who was prevented from doing so by accident or by the fraud of his adversary unassisted with negligence or fraud on his part, may still have the benefit of his defence by suit in equity; and (2) that where a plaintiff in attachment recovered a judgment as against a defendant on a false claim or by concealing from the auditor any fact which tends to show that the claim on which his attachment is founded is not a valid one, a court of equity will, in case no relief can be had at law, interpose to protect the defendant against the judgment, provided he shows that the judgment was entered without his having such knowledge of the suit as afforded him an opportunity to make his defence.</p> <p>3. Such relief, however, will be awarded Upon condition that the complainant do equity, and therefore the decree will provide that upon payment to the grantee in the auditor’s deed, being the, plaintiff in the attachment suit, of the amount paid tq satisfy the municipal liens with interest, within twenty days after the date of the decree, thereupon said proceedings shall be null and void, and upon such payment, or tender thereof, said grantee .shall reconvey said premises to the defendant in the attachment suit, and discontinue and cancel said attachment proceedings.</p>

Tlie bill in this case is filed by the executors of the will of Caroline Bowers, deceased, to set aside a transfer made by Mrs. Bowers in her lifetime of thirty-two shares of the capital stock of the Essex County National Bank of Newark, evidenced by two certificates of sixteen shares each standing in her name on the books of the bank. The transferees are James H. Stitzer, Jr., and his mother, Margaret B. Stitzer.

On final bearing. On bill, answer, replication and proofs. The bill alleges that the complainants reside in the immediate vicinity of the Cedar Grove church in the'township' of Princeton, and that they and their families are members of and contribute to the support and maintenance of the respective churches and denominations named in the deed of trust made by the late Paul Tulane to the trustees of the First Presbyterian congregation at Princeton, on May 27th, 1876, and have…

<p>On final hearing on bill, answers, and answer in the nature of a cross-bill.</p>

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

<p>Heard on demurrer to bill.</p>

<p>On final hearing on pleadings and proofs.</p>

<p>1. Evidence, in a suit to avoid a deed, held to show it was signed and acknowledged as it purported to have been.</p> <p>2. There was a delivery of a deed where, a father having put property in his daughter’s name, she, at his request, executed a deed thereof to a third person, and gave it to the father, who sent it to the grantee’s attorney.</p> <p>3. A gift of lots by father to daughter is not proved by the testimony of the mother that, when the father got the daughter’s signature to a consent for a trolley line, he said it would benefit her lots, and testimony of her husband that the father once told him he had given the daughter some property, at the place where the lots were located, and on another occasion, when asking him to sign a deed, stated he had a splendid opportunity to dispose of the daughter’s property at such place, for her advantage.</p> <p>4. Evidence of oral admissions and declarations is to be received with great caution.</p> <p>5. The principle that a fraudulent conveyance is good inter partes cannot avail the grantee where she, at her grantor’s request, conveyed the lots to another, and the latter, who had in fact purchased only one lot, conveyed the others to -another person for the original grantor’s benefit.</p> <p>6. It cannot avail one, whose father put lots in her name as a cover, in seeking to avoid the deed she made thereof to another, at her father’s request, that a complete agreement of sale was not made between her father and her grantee; they, or the parties representing them, being content.</p>

<p>Oil application lor the allowance of counsel fees on the assessment of damages on a judgment on administrator’s bonds.</p>

'On appeal from a decree of the Essex county orphans court adjudging distribution of the proceeds of the sale of real estate.

<p>On appeal from a decree of distribution made by the Union county orphans court.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 78 N. J. Eg. (8 Buch.) 150.</p>

<p>On. appeal from a decree of tbe court of chancery advised by Yice-Chancellor Howell, whose opinion is reported in 73 N. J. Eq. (4 Buck.) 668.</p>

<p>On appeal from an order of the court of chancery advised by, Vice-Chancellor Howell, whose opinion is reported in ¡60 Atl. Rep. 1103.</p>

<p>The Alabama agents of a Connecticut insurance company proposed, in writing, to the complainant to write employers’ liability policies at an annual premium of $8,725 on a payroll of $1,400,000, and this offer was accepted. It was understood that the premium named in the policies to be issued should be at a higher rate fixed by the company, being the same rate at which the company had insured the complainant during the previous year. Policies were issued in accordance with this agreement, and the premiums paid at the discount rate named in the written proposal of the Alabama agents.—Held, that under the facts of the case the complainant was not entitled either to a reformation or rescission of the contract.</p>

<p>Ross was married to Cavanaugh in 1873. Upon a feigned issue out of chancery, as to the validity of this marriage, there was evidence that Ross had been married in 1862 to Moose, who was still living, and testified that she had never been divorced. There was evidence that she and Ross had separated shortly after their marriage, had lived in the same county within a few miles of each other thereafter, and that neither had asserted any rights under the marriage of 1862; that in 1870 Moose had contracted another marriage of which a child was born, in 1871; that Ross had lived continuously until his death, with Cavanaugh and had children; that Moose had lived continuously from her marriage in 1870 with Prehl; that the children of Boss by his second wife had been recognized as legitimate by the executor of his father’s will.—Held, that the question of the validity of the second marriage was for the jury and that it was improper to direct a verdict against its validity.</p>

<p>The court of chancery has jurisdiction of a suit to establish a trust in shares of stock in a New Jersey corporation, although the trustee resides out of the state, and cannot be served with process, but can only be brought in by the statutory proceedings against absent defendants.</p>

<p>On appeal from a decree of the court of chancery advised by Yice-Chancellor Howell, whose opinion is reported in 73 N. J. Eq. (3 Buch.) 3£3.</p>

<p>The predecessors in title of the defendant, by deed, conveyed to the city of Atlantic City an easement or right of way over a strip of land on the ocean front, which deed contained a clear restriction against placing any building or structure upon the ocean side of the lands conveyed, with a proviso reserving- the right to build a pier of a certain kind and length, on which the owners shall not permit the sale of any commodities “and be confined to charging only an entrance fee.” The defendant erected a pier of the kind and length permitted, and charged visitors on entering-variant fees, depending upon whether entrance to the pier only was desired or whether access to certain reserved parts of the pier, or to certain amusements thereon provided, was wanted by the visitor.—Held, that such charges, other than the fee for entrance, were made in violation of the covenant that the pier owner should “be confined to charging only an entrance fee.”</p>

<p>On appeal from an order of the court of chancery sustaining a demurrer to a bill, which order was advised by Yice-Chancellor Garrison, whose opinion is reported in 7-4 N. J. Eq. (1/. Buch.) 219.</p>

<p>1. Defendant obtained from complainants without payment or consideration, deeds of their interests in real estate worth about $11,000 over the mortgages thereon, by leading complainants to believe that he was morally the owner under a will not published or witnessed, that their interests were of nominal value, and in one case, that the “equity was small.”—Held, that even if there were no statement of anything false as being true, defendant knowingly took advantage of a false impression created by what he had said, and was thereby guilty of false representation for which the deeds could be set aside.</p> <p>2. Lomerson y. Johnston, Jft N. J. Mg. (2 Diolc.) 812, followed.</p> <p>3. If a party is enforcing a legal right in a legal manner the reasons for his so doing are immaterial.</p>

<p>1. The affidavit of consideration attached to a chattel mortgage stated that it -was given to secure the payment of a bond and mortgage executed and delivered by the maker of the chattel mortgage to H. which H., in consideration of $1,500 paid to him by the deponent, had assigned to deponent, and that the amount due thereon was $1,500.—Held, to be a sufficient statement of the consideration, to comply with the statute, and that it is not necessary to set out the consideration which passed between the original parties to the bond and mortgage, the consideration of the chattel mortgage being the amount paid by the assignee.</p> <p>2. The affidavit to a chattel mortgage, after stating “that the consideration of said mortgage is, whereas,” proceeded to recite the facts which disclosed the consideration.—Held, that the word “whereas” did not make the affidavit uncertain, or destroy the positive statement that the consideration was as thereafter set out.</p>

<p>The appeal in this cause was from a decree of- the court of chancery advised by Vice-Chancellor Learning.</p>

<p>1. An attorney in hae re cannot maintain a purchase from a client of the subject-matter of the retainer unless he demonstrates that he made a full communication to his client not only of all that he knew, but as well of all that he believed, respecting the property.</p> <p>2. If, in the course of his employment, the attorney forms an opinion that the property is more valuable than had theretofore been assumed, and if he fails to disclose that opinion and thus give his client all that reasonable advice against himself that he would give against a third person, the transaction, if questioned, cannot be sustained.</p>

<p>The general rule that a trustee who files a bill to foreclose a mortgage held by him must make his eestuis que trust parties does not apply where they are unknown or are so numerous as to make it impossible, or highly inconvenient, to do so.</p>

Simmons, late of the city of Passaic, died on June 16th, 1896, leaving a will, which is the subject-matter of this controversy. Pie left four children, Mrs. Gillen, the complainant, Mrs. Howe (who has since died) and the defendants, Mrs. Hadley and Miss Henrietta P. Simmons. ' The will makes provision for all the children and disposes of all the testator’s property.

<p>On appeal from a decree of the court of chancery advised by Yice-Chancellor Emery, whose opinion is reported in 73 N. J. Eq. (8 Buck.) 1/56.</p>

As to the defence of usury, the answer of the mortgagor contains an allegation denying that complainant is entitled to interest on the mortgage “for the reason that the said loan was tainted with usury by the said mortgagee demanding and receiving from this defendant a sum of money as a bonus for the making of the said loan, and also by receiving a sum of money in excess of the legal rate of interest allowed by the statute of the State of New Jersey on the actual sum of…

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 78 N. J. Eq. (8 Buch.) 897.</p>

It is chiefly a question of fact. The testimony will never be more fully impressed on my memory than it is now at the close of the trial. The agreement which complainants seek to reform is a remarkable one.

<p>On appeal from an‘order of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 71 N. J. Fq. (1 Bueh.) 575.</p>

<p>On appeal from a decree of the court of chancery advised by Yice-Chaneeilor Howell, whose opinion is reported in 74 N. J. Eq. (4 Buck.) 647-</p>