Volume 77 — New Jersey Equity Reports

Oil bill fox maintenance. On application for alimony pendente lile and counsel fee. Heard on bill and affidavit, answer and affidavits and rebuttal affidavits.

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

<p>1. Where such is the intent of the will, the words “heirs” and “devisees” will be deemed to mean “legatees” when applied to gifts of personalty, and hence where gifts to certain persons were gifts of personalty or interests therein, but the gifts were given in terms “I give and devise,” and the words “devise” and “devisees” were clearly used in the granting clauses of the will as intending to cover interests in personalty and the recipient of such interest, the recipients thereof will be deemed “devisees” within a provision of the will that, if any of the devisees should aid or attempt to prevent the proof of the will, all the expenses of probating it should be taken by the executor from the share of each one so attempting.</p> <p>2. A provision in a will that if any of the devisees shall aid in an attempt, or attempt to, prevent the proof of the will, the expenses of probating it shall be taken from their shares thereunder, is valid.</p> <p>3. Evidence held to show that certain beneficiaries aided the caveator in an attempt to prevent probate of a will so as to bring them within a provision therein that, if any of the devisees should aid in an attempt to prevent proof of the will, the expenses of probating it should be taken from their shares thereunder.</p> <p>4. The filing by a beneficiary under a will of an appeal to the prerogative court from a decree of the orphans court, admitting the will to probate, was of itself an attempt to prevent the probate of the will, inasmuch as the jurisdiction of the prerogative court over the- probate of wills is original, and upon filing of such appeal the question for decision is not the propriety of the decree below, but the right to the probate of the will; the question being triable de novo on the same evidence heard in the lower court or on additional evidence, and the effect of the appeal being to stay the probate so long as the appeal continues.</p> <p>5. The orphans court may include counsel fees as part of the costs and expenses of the probate of a will which is contested.</p>

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

<p>1. Where the defendant had instituted three actions at law for damages against different municipalities for decreasing the flow of a river, it was no ground for enjoining such suits and transferring the controversy to equity to avoid a multiplicity of suits that the actions at law would determine nothing but the amount of damages suffered by defendant for the past six years, and that there would or might be other similar actions brought in the future; the municipalities being able to prevent such actions by instituting proceedings to condemn.</p> <p>2. Because a tort is continuing, and will result in successive actions at law, does not entitle the wrong-doer to enjoin such actions, and have the controversy determined in equity.</p> <p>3. Where a property right is invaded by a corporation having the power of eminent domain, but there is no agreement, no inequitable conduct, no possession demanded, and nothing but the invasion of a legal right shown for which damages are sought at law, equity will not assume jurisdiction against the objection of the party injured.</p> <p>4. Where defendant brought several suits against municipalities to recover damages for interfering with the flow of a river, the mere complexity of the questions involved was insufficient to justify a transfer of the controversy to equity.</p> <p>5. Where a river was polluted by the sewers of a city and by several factories located along' its banks above defendant’s land, each was liable for the results of its own pollution only. In the case of several independent tort-feasors, each is responsible only for his own act.</p> <p>6. In an action at law by a riparian proprietor to recover damages for excessive abstraction of water by upper proprietors, laches is no defence.</p>

<p>1. The right of a senior mortgagee on the foreclosure of the junior mortgage is the right to foreclose, and not the right to redeem.</p> <p>2. The court in a suit to foreclose a purchase-money mortgage brought by the mortgagee against purchasers from the mortgagor may not order a stay until the mortgagee has procured releases that will perfect the title to the land which he conveyed to the mortgagor by deed containing the usual covenants of warranty and seizin.</p> <p>3. The covenant of seizin is broken, if at all, as soon as made. *</p> <p>4. The right of action for breach of covenant of seizin is in the grantee, and not in one claiming under him.</p> <p>5. The covenant of seizin is not broken by> the existence of easements or encumbrances not striking at the technical seizin of the purchaser, and a mortgage or an expectant right of dower does not affect the covenant.</p> <p>6. A covenant of warranty runs with the land.</p> <p>7. A breach of covenant of warranty does not arise unless there has been eviction by title paramount or by action brought.</p>

<p>1. In an action for specific performance, the vendor may recover the purchase price.</p> <p>2. A false representation must be false to the. knowledge of the person making it in order to sustain a legal action of deceit.</p> <p>3. Equity will relieve from false representations made in the sale of realty, whether they were intentional or made through mistake.</p> <p>4. Complainant sued to recover so much of the consideration paid defendant for land as would amount to the difference in value between a tract of eighty-two acres and sixty-nine acres, the bill alleging that defendant falsely represented, either fraudulently to induce complainant to pay a higher price, or through mistake, that the land contained the larger acreage. — Meld, that the chancery court has general .jurisdiction in eases of fraud, whether the legal remedy is adequate or not, though, where the legal remedy is adequate, it will not interfere unless justice will be facilitated thereby; that it would be in the present case, since, if- the misrepresentation was not knowingly false, a law court would not have jurisdiction, while the chancery court would, especially where the purchase price was so placed that a court of equity could impound it to abide the result.</p>

<p>1. 1 Gen. Stat. 1895 p. 81¡9 authorized incorporation of rural cemetery-associations to hold one hundred and thirty-five acres of land, and east the management thereof on trustees elected by the lot owners, and exempted the land from taxation, and provided that the lots from time of interment should be inalienable, and allowed the holding of property in trust to apply income to improvements, and the investment of money accruing from sale of lots for the purpose of improvement of the land, and also provided that at least one-half the-proceeds of all sales of lots should be first appropriated to the payment of the purchase-money of the land acquired, until the whole purchase-money should be paid, and the residue used to improve the grounds, and after the land is paid for future earnings from the sale of lots shall go to the improvement and preservation of the cemetery. By supplement of March 14th, 1879 (1 Gen. Stat. p. 851 § 16), it is provided that any creditor, in addition to his right to vote by virtue of owning lots, shall be entitled to one vote-for every $400 worth at par value of bonds, “stock,” or other duly authorized evidence of debt he may hold against such association. A cemetery association under the act bought land jointly with another association, each taking the limit of land allowed, and gave to the purchaser certificates of shares in the proceeds of the sale of the lots as consideration. — Meld, that the statute did not permit the giving of stock which at all times would be a lien on the proceeds, even after the lots were paid for; and hence the certificate issued by the association conferred no legal right, since it did not oblige the company to pay a definite price for the land, and disregarded the provisions obliging the company to appropriate one-half of the proceeds to the improvement of the property.</p> <p>2. Meld, also, that though the word “stock” was used in the supplement, it would be considered an inadvertence, and not sufficient to change the scheme of the statute.</p> <p>3. Neither would the scheme of the statute permit two companies, each holding the limit of land, jointly to buy land, and jointly to give certificates for shares for the purchase price.</p> <p>4. In a suit for specific performance of a contract to convey land, purchased by a cemetery association, and paid for by the issuance of certificates of stock, the association cannot urge that it is entitled to relief, without passing on the question of the validity of the certificate, when the bill on its face shows that the certificate was issued in disregard of the scheme of Gen. Stwt. p. SJ¡3, under which it was organized, and was the only consideration for the purchase.</p>

<p>The statute (P. L. 188// p. 285 § 5) provides that if the tax of any company remains unpaid on the first day of July after the same becomes due, it shall thenceforth bear interest at one per cent, a month until paid, and makes such a tax a preferred debt in case of insolvency (§ 6) for which an action at law may be maintained. The Corporation act (P. L. 1896 p. 296 § 56) provides that, when any corporation is dissolved in any manner whatever, the court of chancery may appoint one or more receivers, with power to prosecute and defend in the name of the corporation or otherwise, and section 54 of that act makes the directors trustees, with authority to recover debts and property in the name of the corporation upon its dissolution in any manner. — Held, that franchise taxes due from a corporation bear interest at twelve per cent, until paid, even after dissolution of the corporation by executive proclamation ; the interest being preferred, as well as the debt.</p>

<p>1. A suit to annul a marriage on the ground that defendant had at the time a former spouse, is not a suit merely to relieve the private grievance of complainant, but the state is also concerned, and the interests of innocent unborn children may also be involved.</p> <p>2. The denial of a decree annulling a marriage, where its nullity has been absolutely established by the proof of a • living spouse of one of the parties, does not establish the legality of the second marriage, but the party competent to marry may immediately marry another, and the other party may do likewise after his incapacity has been removed by the death or divorce of his spouse.</p> <p>3. Where the proof in a suit to annul a marriage fails to show that the marriage is void, the decree should so recite and adjudge, and dismiss the bill on that ground.</p> <p>4. A man marrying a woman having a former husband may sue to annul the marriage, though he was guilty of negligence in relying on her statements that she had been divorced from her former husband.</p> <p>5. Where the nullity of a marriage has been established by clear and convincing evidence, a bar to an annulment thereof should also be established by clear and convincing evidence before a decree of nullity is denied.</p>

<p>1. In order to establish a gift of personal property by husband to wife, there must be clear and convincing evidence of delivery by the husband to the wife with the intention of divesting himself of all dominion and control over it, and of vesting title in the wife.</p> <p>. 2. Where a husband and wife in humble circumstances both labored for the .mutual betterment of their condition, all the earnings being delivered to the wife, who acted as the treasurer of the family, such facts were insufficient to justify a presumption of gift on the part of the husband of his earnings to the wife, and waiver of all interest therein.</p> <p>3. Where a husband and wife engaged jointly in operating certain saloons, the proceeds of which were delivered into her custody as were also the earnings of the husband from other sources, and those of the children, all being held by her in a common hoard, from which she purchased real estate, taking the title in her own name, from which, after separation, she endeavored to exclude him, they would be held in equity to own the property as tenants by the entirety.</p>

<p>1. The allegations oí a bill as to the contents of a document, a copy of which is attached to it, are not controlling; but the document will be read and construed by the court.</p> <p>2. Every material fact necessary for complainant to prove to establish his right to the relief prayed for must be alleged in the premises of his bill with fullness and particularity.</p> <p>3. A demurrer to a bill in equity does not admit facts pleaded on information and belief.</p> <p>4. The court, in considering the sufficiency of a bill in equity, will not accept the conclusion drawn by the pleader, but will determine for itself the legal force of the facts alleged.</p> <p>5. Where the averments of a bill in equity are ambiguous or capable of two constructions, the one favorable to defendant must be adopted because a pleading must be construed most strongly against the pleader.</p> <p>6. A complainant in equity who desires to complain of fraud must set forth the facts constituting the fraud, and the mere use of the words “fraud* and “misrepresentation” are insufficient.</p> <p>7. The price obtained at a sale of assets of a corporation in bankruptcy bought in by the creditors by agreement for reorganization is not conclusive on the value of the assets.</p> <p>8. A bill by a stockholder of a corporation adjudged a bankrupt who has signed a reorganization agreement to enjoin the carrying out of a reorganization plan involving the formation of a new corporation to take over the assets of the bankrupt and to issue securities and stocks amounting to $27,000,000 (of which $18,830,000 were to be used to take care of security holders, creditors and stockholders, and of which last-named amount $12,773,300 was to be stock), by restraining the issuance of stock in excess of the amount permitted by law, which bill alleged that the statements in the plan of reorganization were false, in that, as shown by an appraisement in the bankruptcy proceeding's filed subsequent to the time complainant became a party to the reorganization plan, the value of the property of the bankrupt did not exceed $7,750,000, and which did not allege the value of the property, was insufficient for failing to unequivocally state the value of the property passing to the new corporation as a consideration for stock to be issued against it, since an appraisement in the bankruptcy proceedings is not conclusive on the issue of fraud.</p> <p>9. Where the entire subject-matter of a trust is to be dealt with, and every person’s rights in it are to be affected, all the cestuis que trustent are indispensable parties.</p>

In this case a bill was filed by the complainant against three defendants, an individual and two corporations. The subject-matter of the suit is conceded to be within the jurisdiction of a court of equity. The two corporations defendant are each corporations of the State of blew Jersey.

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

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

<p>Defendant began statutory proceedings to establish a lost deed, and complainants filed a bill to enjoin the action. Defendant filed a cross-bill, and the court enjoined her from proceeding with her statutory remedy, and dismissed the cross-bill. The court on appeal reversed the decree, “to the end that the complainants’ bill be dismissed” and defendant “suffered to proceed with the remedy provided by statute,” and the remittitur directed that the final decree be reversed and the bill of complaint dismissed. — Held, that the court below could not permit defendant to proceed to establish the lost deed in equity, but must relegate her to her statutory action.</p>

Heard on bill, answer, replication and proofs in open court. This is a bill which seeks to restrain the defendant corporation from taking advantage at law of a receipt signed by the complainant and alleged by the defendant to operate as a release by the complainant of his right of action against the defendant corporation. The facts and issues will sufficiently appear in the opinion.

<p>On motion for leave to amend the bill.</p>

<p>Heard on bill, answers, replications and proofs in open court.</p>

<p>1. It is the right of an individual who is failing or insolvent to prefer one of his creditors.</p> <p>2. It is the right of any creditor of a failing or insolvent debtor, acting honestly and in good faith, to obtain security from his debtor to secure the debt or to extinguish the debt by purchasing property of the debtor which is of the same value as the indebtedness.</p> <p>3. The limitation on the right of a failing or insolvent debtor to prefer one of his creditors is found in a want of integrity of purpose on the part of the preferred creditor, and there must be no combination between him and the debtor to hinder, delay, or defraud other creditors of the debtor.</p> <p>4. It is not sufficient for the purpose of setting aside a conveyance as in fraud of creditors that the object of the grantor was fraudulent. It must be shown that the grantee participated in that intent, or had knowledge of the object of the grantor, or of such facts as should have put him on inquiry as to the object.</p> <p>5. Where a conveyance is made by a failing or insolvent debtor to secure an antecedent debt or to discharge such debts, knowledge on the part of the grantee that the grantor’s object was to defeat other creditors will not operate to vitiate the conveyance, providing the grantee did not actually participate in that purpose by making a reservation in favor of the grantor or in some other manner combining with the grantor to enable him to defeat the other creditors.</p> <p>6. In an action to set aside a conveyance as in fraud of creditors, evidence held to show that the grantee receiving the conveyance in discharge of an antecedent debt did not combine with the grantor or participate in a fraudulent purpose to defeat other creditors.</p> <p>7. That a grantor in a conveyance by an insolvent debtor given to discharge an antecedent debt was permitted by the grantee to occupy the premises without payment of rent does not show a fraudulent participation by the grantee in the. purpose of the grantor to defeat other creditors, where it is shown that rent was to bo paid.</p> <p>S. Where a debt is past due, and the value of property conveyed by the insolvent debtor is about equal to the debt, and there is an absence of knowledge on the part of the grantee of other indebtedness of the grantor, no fraudulent purpose can be properly assumed.</p>

<p>On petition for leave to file bill of review.</p>

<p>1. A mandatory injunction is rarely granted before final hearing or before the parties have had full opportunity to present the facts, and is strictly confined to cases where the remedy at law is plainly inadequate, and a preliminary mandatory injunction will be ordered only in cases of extreme necessity.</p> <p>2. Where a brick building is maintained adjacent to a railroad, so constructively defective that it is likely to collapse at any time from the vibrations caused by passing trains and fall upon or in front of a train, seriously endangering the safety of the traveling public and the railroad company’s property, and rendering it impossible for the railroad to be operated with safety to the public, a condition of extreme necessity exists, warranting a preliminary mandatory injunction compelling' the immediate removal or repair of the building by the owner.</p> <p>3. A building which, because of its inherent weakness or dilapidated condition, is liable to fall into a highway and injure persons rightfully there, is a public nuisance.</p> <p>4. Such building is also a private nuisance where it is liable to fall and injure adjacent property.</p>

<p>1. In the absence of legislative authority, a municipal corporation cannot delegate its legislative functions, but it may delegate ministerial or administrative functions to subordinate agents.</p> <p>2. The legislative body of a municipality may in some cases, without special authorization by the legislature, appoint agents to perform administrative or ministerial acts and clothe them with some degree of discretion, but where the legislature confers on the legislative body of a municipality a power of such quality or in such manner that the exercise of the power in accordance with the legislative intent may reasonably require the deliberate concerted judgment dnd discretion of the members of the body, there can be no delegation of the power.</p> <p>3. 1 Gen. Stat. 1895 p. 506 eh. $31, empowering the council of any city owning water works to purchase, when expedient, such additional land as may be deemed advisable for the improvement and extension of the water-supply, confers powers on the council involving judgment and deliberation which the council may not delegate.</p> <p>4. The council of a city appropriated a specified sum for the purchase of additional land for the use of the water works. The water committee of the city appointed a sub-committee to contract for the purchase of such lands as the committee thought best. The committee, through the subcommittee, purchased a tract, and reported the same to the council, which confirmed the transaction. The sub-committee made a contract for the purchase of other lands,, but no report of such purchase had been' made to the water committee or to the council. — Held, that the contract made by the sub-committee was not enforceable against the city.</p>

The bill is filed by complainant as the devisee and legatee of all of the estate of Amelia Hayes, deceased, and seeks to restrain the executor under the will from selling the real estate in derogation of the asserted right of complainant to elect to take the real estate in lieu of the cash to be derived from its sale.

<p>On petition for leave to file bill of review.</p>

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

<p>On bill for injunction to restrain city from making a street improvement assessment.</p>

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

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

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

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

<p>1. An adjudication by a police justice under P. L. 1898 p. 91/2 § 17, on complaint of the overseer of the poor that the defendant is a deserter of his family, and requiring him to pay a certain sum weekly for the support of his wife and child, precludes an application by the wife to this court for maintenance under the Divorce act (P. L. 1907 p. JpVt § 26), while the adjudication of the justice is still in force and being obeyed, when the proceedings before the police justice were initiated by the wife, although prosecuted by and in the name of the overseer.</p> <p>2. When a wife causes complaint to be made by the overseer of the poor against her husband under the Disorderly act, to the end that he be adjudged to support her and also files a bill in chancery for maintenance under the Divorce act, and the complaint before the police jus-tice is prosecuted to an adjudication prior to a hearing in this court on an application for alimony and counsel fees, she will be held to have waived, for the time being, her remedy in this court in favor of the remedy in the police court; the doctrine of election applies.</p> <p>3. The complainant being a real, though not a nominal, party to the proceedings before the police justice, is bound by those proceedings; and even if the overseer of the poor were the only party, the complainant would be privy to the proceedings and therefore bound by the judgment.</p> <p>4. When a wife causes to bo prosecuted to a finality a complaint against her husband for support before a police justice under the disorderly act before prosecuting to a hearing in this court an application for alimony under the Divorce act, the matter in issue will be held to be res adjudicata.</p> <p>5. The adjudication of a police justice against a deserter of his family that he is a disorderly person and requiring him to pay a certain sum weekly for the family’s support, being. operative for one year from its date, after which time the complainant would be at liberty either to cause the defendant to be prosecuted de novo before the police justice or resort to this court for the remedy given by the Divorce act, a bill for alimony already filed will be retained, with leave to the complainant to proceed thereon after the police justice’s adjudication has become inoperative.</p>

<p>1. In a suit for divorce founded on adultery, the signed confessions of the paramour written by the petitioner and witnessed, but made in the absence of the defendant, are not evidence.</p> <p>2. The defendant’s confession of guilt made to his wife and sister, are not such evidence as, under the law of this state, will support a decree.</p>

On application for preliminary injunction. The bill of complaint shows that Catherine Fitzpatrick departed this life leaving a last will and testament dated July 1st, 1903, which was duly admitted to probate, and wherein she did, among other things, leave to the complainants, Salina Roone (now Mrs. O’Donnell) and Sadie Rhone (now Mrs. Hinton), $500 to be divided between them share and share alike; that the executor named in the will renounced and letters of administration…

<p>1. The provision in our Divorce act (P. L. 1907 p. 47Jj % 10) that all suits for divorce shall be commenced by petition does not operate to prevent the petitioner from alleging in such pleading the existence of a fraudulent divorce obtained in another jurisdiction and praying for the avoidance of the alleged fraudulent decree as an impediment to the granting of the relief sought in the suit for divorce in this court.</p> <p>2. A petitioner for divorce in this court may in that suit remove a fraudulent divorce out of the way of, and preliminary to, the granting of the main relief in the suit in this court, and will not be compelled to file an original bill for that purpose; one suit instead of two is all that our practice and statute require.</p>

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

<p>On appeal from, an assessment of a collateral inheritance tax</p>

<p>On appeal from a decree of the former chancellor advised by Vice-Chancellor Bergen, whose opinion is reported in 72 N. J. Eq. (2 Buch.) 653.</p>

<p>1. It is the uniform rule in this state to decline to decree specific performance where reasonable doubt concerning the title exists, though rested on grounds merely debatable, but which might visit upon the purchaser litigation in that regard, and that too, where at law, the title might in fact be declared good.</p> <p>2. When the vendor in a suit for specific performance by reason of the silence or the conduct of the vendee regarding the title to be conveyed during the negotiations or in the progress of the cause, has lost an opportunity to perfect his title before decree, this opportunity will still be afforded to him by the allowance of a reasonable time, even after the entry of the decree, if it can be done without hardship to the vendee.</p>

<p>On appeal from a decree o£ tlie court of chancery advised hy Vice-Chancellor Stevenson, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 67.</p>

<p>1. The statute relating to fraudulent conveyances extends its protection to all persons having a valid cause of action or suit for damages arising from torts as well as from contracts, but a tort claimant, to be entitled to the protection of the statute, must reduce his claim to judgment. When his claim has thus been established, a conveyance made after the liability accrued and before suit may be set aside, on the theory that such judgment, when once obtained, relates back and becomes a debt as of the time when the original cause of action accrued, thus constituting him an existing creditor.</p> <p>2. A voluntary conveyance is void by force of the statute with respect .to existing debts. When attacked by a subsequent creditor, fraud as a fact must be proven. It must be shown that the conveyance was intended to defraud some creditor either existing or subsequent. If the conveyance be thus shown to be fraudulent it may be set aside at the instance of any creditor existing or subsequent. It is not necessary for the subsequent creditor to show that the deed was made with the intent to defraud such persons as should, subsequent to its date, become creditors of the grantor, overruling on this point Gardner v. Kleinke, 46 N. J. Eq. (1 Diek.) 90; explaining and following Hagerman v. Btichanan, J/5 N. J. Eq. (18 Slew.) 292.</p>

<p>Rulings of a receiver upon the validity of the claims of creditors submitted may be reviewed by the court which appointed him, although no appeal to the court is taken upon such ruling.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 75 N. J. Eq. (5 Buch.) 455.</p>

<p>On appeal from a decree of the court of chancery advised by Yiee-Chancellor Stevenson, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 386.</p>

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

On appeal of tlie defendant Mary Orr from a decree of the court of chancery advised by Arice-Chancellor AValker, whose opinion is reported in 75 N. J. Eq. (5 Buch.) 484. [

On appeals from a decree of the prerogative court advised by Vice-Ordinary Walker, one by the caveatrix affirming the decree of the orphans court admitting the will to probate, but reversing the order allowing counsel fees to the eaveatrix, and the other by the proponent allowing costs and counsel fees.

<p>1. Revision 1903 (P. L. 1903 p. 1¡30 § 55) makes the fees and expenses of a tax sale part of the tax lien which shall be paid by the purchaser. Section 36 provides for the payment of fees of the county clerk for entering and indexing the purchaser’s certificate of sale, or, at his option, for recording the certificate.as a mortgage, in proceedings to perfect his title under a tax sale. Section 57 permits the owner to redeem within two years from the sale by paying the purchaser the amount of purchase-money shown on the certificate, with twelve per cent, interest, together with such other fees and expenses as may be incurred by the purchaser under this act. Section 58 permits redemption by payment to a designated officer, where the purchaser does not cancel the certificate on proper tender. Section 59 permits the purchaser to bar the right of redemption by serving written notice to redeem upon the persons interested, and if not redeemied pursuant to the notice, permits the purchaser to annex the notice and affidavit of service to the certificate of sale, with an affidavit of non-redemption, and file them in the clerk’s office, where they shall be recorded as a deed; and also provides an additional remedy by foreclosure in equity. — Held, that no fees and expenses of the tax sale can be charged against the owner unless definitely fixed by the statute, and expenses incurred for searching the record in order to give the notice. required by section 59 in proceedings to foreclose the equity of redemption cannot be charged against the owner as a condition to the redemption of the land.</p> <p>2. A construction of a Tax act which makes the amount payable on redemption uncertain should not be adopted unless that be the clear intention of the act.</p> <p>3. The tax and warrant for sale for non-payment thereof, when taken together, conclusively determine the amount due upon redemption, and the execution for raising the amount with definite fees.</p> <p>4. As a rule, costs and expenses incurred in legal proceedings must be authorized by statute in order to impose them on a defendant in addition to the debt or obligation.</p> <p>5. Where an owner, on the refusal of the purchaser at a tax sale to accept his tender of redemption, filed the affidavit required by Revision 1903 (P. L. 1908 p. 481 § 58), and received his certificate of redemption which was filed February 21st, 1907, his rights in the property became vested and were not affected by P. L. 1907 p. 459, enacted May 15th, amending section 57 thereof.</p>

<p>1. In a suit to quiet title, the fact that so much of the answer as shows defendant’s claim of title may be defective is no reason for striking out the whole answer, where response is correctly made to complainant’s allegations as to his own title and possession.</p> <p>2. An answer in equity is evidence for complainant so far as it extends, and so far as it is against him, it makes an issue of fact to be tried.</p> <p>3. In a suit to quiet title, the allegations in the answer setting up defendant’s title could not be struck out on the ground that no title was shown, on a motion under rule 213, allowing objections to pleadings to be made by motion, as the rule was intended to substitute the motion for an exception, and not for a demurrer to an answer, and makes the motion a waiver of the right to demur or except.</p>

<p>1. Upon a bill for reforming and enforcing the specific performance of an agreement for the assignment of patents comprising existing and future inventions, filed by the assignee of the original purchaser against one of the original vendors, and also the assignee of this vendor or assignor, which was demurred to generally for want of equity, and specially because the contract as sought to be reformed should not be enforced because it is void as against public policy and inequitable as being too general and unrestricted, the question in a court of equity comes finally to the issue, whether on the entire facts admitted or proved, the contract for the assignment of future inventions goes no further than a restraint fairly and reasonably necessary for the protection of the assignee, under all the circumstances of the case.</p> <p>2. Where the bill, as in this case, shows the payment to the original vendors of the sum of $1,995,000 for the inventions existing and future, the receipt of this sum as the consideration being admitted by the demurrer, it cannot as a matter of law, and in the absence of any qualifying facts, be said that an agreement for the transfer of future inventions of the same character, based on the immediate payment to an inventor of such an enormous consideration, is, on the face of it, illegal.</p>

<p>A bill filed under the General Tax law (P. L. 1908; p. 482 § 59) to foreclose the equity of redemption must allege that some certain amount is due, otherwise it is demurrable.</p>

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

<p>1. In a suit by a grantor to set aside a deed reserving a life estate, ’ evidence held not to show that the grantee, taking also a lease of the premises, was to support the grantor and pay the interest on the mortgage on the premises if the lease was terminated by the grantor, and the failure to insert such an agreement in the deed or to make a breach thereof a matter of defeasance did not justify a cancellation of the deed.</p> <p>2. The grantor in a deed reserving a life estate leased the land to the grantee for a year. It was understood that, the lease would be renewed from year to year if the grantor desired. One of the objects of leasing to the grantee was to secure to the grantor support for life as a member of the grantee’s family, and the right of the grantor to a renewal of the lease with the covenant of support from year to year for her life and at her sole option was an essential part of the agreement, which should have been inserted in the deed, and, under the agreement as inserted in the deed, the grantee could abandon the lease at the end of the year.— Held, that the failure to insert the agreement in the deed was a fatal defect, entitling the grantor to its cancellation.</p> <p>3. The court on canceling a deed of land at the suit of the grantor will relieve the grantee from liability on mortgages executed after the execution of the deed pursuant to an agreement between the parties, and will impose other equitable terms.</p>

<p>1. A default decree of divorce rendered- on service by publication and notice acted on by defendant, a non-resident, who employed an attorney to act, is voidable where the attorney neglected to protect defendant’s interests by failing to answer until after the rendition of the decree.</p> <p>2. Where a wife learning'that her husband-has obtained a default decree' of divorce -on the -failure of her attorney to defend, first treated with her husband for a money settlement on the basis of the decree, and subsequently affirmed it by a religious act taken at the instance of her family, ■and finally acted'upon it by invoking the law to punish her husband for having cohabited with her out of lawful wedlock, she could not attack the decree and proceed to set the same aside.</p> <p>3. A default decree of divorce in favor of a husband rendered on service by publication and notice will not be set aside -on the ground of public policy merely because the successful party suppressed a written stipulation executed by the parties at the time the wife left. the. husband, where he almost immediately afterwards repudiated it, and. where for some years the wife, with knowledge of the existence of the decree, took no steps to set it'aside, until after sh'e had in various ways acted on it as valid. ■ ■-..-•■</p>

<p>Where, after the obtaining by a husband of a decree relating to the custody of his children and providing for visits to the husband and wife respectively, the wife obtained in another state a decree of divorce in an action which the husband though notified did not contest, giving her the custody of such children, and both the wife and children are residents of such other state, an order will not be granted by the courts of this state making more precise the original order as to the custody; but the application should he made to the courts of such other state.</p>

<p>1. For some purposes a will speaks from testator’s death, and all property falling fairly within it will pass whether acquired before or after its execution.</p> <p>2. “Relations,” as testamentary beneficiaries are relatives, entitled under the statute of distributions, and persons who have married them.</p> <p>3. A will reciting that there “are” no debts owing by any relative, did not release a debt to testatrix from her son incurred after the will was executed.</p>

<p>1. The adjective “nonfluid” and the noun “oil,” when used in their proper sense, cannot be exclusively appropriated as a trade-mark since they are merely descriptive.</p> <p>2. Any material misrepresentation in a label or trade-mark as to the person by whom the article is manufactured, as to the place where manufactured, or as to the material composing it, or any other material false representation, deprives a person of equitable relief when such trade-mark is infringed, although the act of the infringer was without justification, and although the false article was as good as the true one.</p> <p>3. The general rule that one cannot invoke the aid of equity when his trade-mark is infringed, if such trade-mark is intended to defraud the public, is of universal application, and cannot be confined to particular classes of cases.</p> <p>4. Where a party sold what was in fact a grease under the trade-mark of “nonfluid oil,” it was a material misrepresentation to the public, such as would prevent equitable relief in case of an infringement of such trademark.</p> <p>5. Regardless of whether certain advertisements were only' occasionally put forth misrepresenting to the public that certain grease was “nonfluid oil,” they were sufficient to show an intent to mislead the public by adopting such trade-mark.</p> <p>6. Though in a suit for infringement of a trade-mark complainant was denied relief because its trade-mark was a fraud on. the public, yet where respondent was guilty of a similar fraud costs were denied to it.</p>

<p>1. The negotiability of a certificate issued by a company, whereby it agreed to pay a certain sum at the office of a trust company, in equal semi-annual installments, was not affected by a provision that the failure to pay any installment when due should make all future installments at once due and payable.</p> <p>2. Certificates issued by a company provided for payment of a certain sum at the office of a trust company in semi-annual installments; that the failure to paj’ any installment when due should make all future installments at once due and payable; that until such default occurred the company might at any time discharge its liability by paying the amount of all future installments to the trust company in trust to pay the same to the "registered holders” of the certificates. — Held, that' the “registered holder” was the party appearing on the book of the trust company as the holder of the paper.</p> <p>3. Such certificate, not bearing on its face a promise to pay the amount named to the holder or owner, absolutely and at all events, was not negotiable, the company retaining the right to pay the entire amount to the trust company in trust for the registered holders of the certificate, and the trust company being discharged by payment to the registered holder, who might not be the real owner, the certificates being assignable by endorsement and delivery.</p> <p>4. An agreement between the stockholders of corporations whereby in order to effect a consolidation of the two companies one company was to issue stock worth a certain sum in payment for stock of the other company which was worth much less, was invalid, and no agreement relating thereto could be enforced.</p>

<p>1. The doctrine announced by the court of errors and appeals in Easton v. Oastner, SI E. J. Eg. (4 Steio.) 607, must be accepted as the established law of this state.</p> <p>2. A decedent’s creditor is not obliged to await proceedings of an administrator or executor to sell land to pay the decedent’s debts by order of the orphans court, nor is he obliged to go into that court to effect such sale. He has a standing in the court of chancery and can file his bill in that court and secure the enforcement of his statutory lien.</p> <p>3. Whether the administration of the decedent’s estate is in a foreign state, or in this state, does not affect the right of a creditor whose debt is charged upon land situate in New Jersey, of which the debtor died seized, to proceed in this court.</p> <p>4. Neither does the complainant’s right to file a bill depend upon the question of the insolvency of the estate of the decedent, the theory being, not that the complainant has exhausted his remedy at law in the probate court, but that he has a statutory lien which he has a right to enforce in the court of chancery, a court which has general jurisdiction for the enforcement of liens.</p>

<p>Bill for construction, of will and instructions to trustees. On final hearing on pleadings and proofs.</p>

(P. L. 1870 p. 20), to restrain sheriff’s sale of complainant’s land under execution, upon a judgment recovered against a former owner of the land. Heard on bill and answering affidavits.

<p>The evidence in a suit to foreclose a mortgage held insufficient to show a contract whereby the mortgagee agreed not to require interest on the debt, or that the possession taken by G., was as agent for the mortgagee.</p>

<p>Evidence examined under issues raised by the cross-bills, and relief decreed in favor of cross-complainants upon principles already made the law of the case in the earlier stages of the litigation.</p>

Heard on bill, answers, replications and agreed state of facts. Erom the bill, answers and agreed state of facts the situation is as follows: On the '28th day of April, 1886, there became incorporated under the act to incorporate benevolent and charitable associations (1 Gen. Stcd. p. 1J/-9), a corporation known as the Home for Aged and Indigent Odd Fellows of the State of New Jersey.

<p>1. To justify a bill of review on the discovery of new matter, it must appear not only that the matter is new, but that the party could not have known thereof before the trial by the use of reasonable diligence.</p> <p>2. A decree giving affirmative relief to defendant on an answer alone will not be reversed on appeal merely because a cross-bill was not filed, where the case was fully tried on the merits and the evidence warrants the decree.</p> <p>3. Where the court gave affirmative relief to defendant on his answer alone, it will open the decree on application and make a new one on the evidence admitted on giving defendant the right to file a cross-bill, and the new decree will be so dated that complainant will be within timé to appeal from it.</p> <p>4. A complainant applying after two years or more that the case was in litigation to prove a matter within his personal knowledge and concerning his personal conduct may not have the decree against him opened to enable him to give testimony on that point.</p> <p>5. A decree will not be reopened on the application of the defeated party to permit him to produce an admittedly perjured witness to prove a new basis for relief or to producé a witness admittedly not knowing what he has been testifying about.</p> <p>6. An application to reopen a case for further proof after rendition of final decree held not supported for failure to show due diligence to procure at the trial the testimony relied on.</p> <p>7. Where a note was an accommodation paper as between the maker and payee, a third .person seeking to hold the maker on the note has the burden of proving that he gave consideration for the note.</p>

<p>Heard on petition for divorce ex parte.</p>

HparcT on bill, answers, replications and proofs in open court. This is a bill filed by Constant Q. Eing against the New Auditorium Pier Company, the Pier Corporation of New Jersey, the Pier Company of New York, William H. Brearley, who was trustee under certain mortgages, Everett P. Hervey and George C. Tilyou. Constant Q. Eing was a bondholder of the New Auditorium Pier Company, Brearley being trustee of the mortgage.

<p>1. A judgment creditor, who seeks to reach an equitable estate of the judgment debtor in land, must plead and prove that he has exhausted his remedies at law against the debtor, and that he cannot collect his judgment at law.</p> <p>2. A judgment creditor, seeking to reach an equitable estate of the judgment debtor, does not show that he has exhausted his remedies at law by merely showing that the debtor is insolvent.</p> <p>3. A demurrer to a bill in equity does not admit facts pleaded on information and belief.</p> <p>4. A judgment creditor, entitled to reach real estate to which the judgment creditor was entitled under a will, and which he has caused the executorTwho had the power to convey, to convey to him and his wife, is entitled to an equitable lien on the property of the debtor standing in the name of the wife, and to have that lien foreclosed for his benefit.</p>

Heard on bill, answers, replications and proofs in open court. The bill in this case is filed to foreclose two chattel mortgages, each made by the defendant John J. Tully, and eách now owned by the complainant. Each mortgage covered horses, wagons and harness. One of these mortgages was for $2,000, and was dated December 21st, 1896, and contains a clause respecting after-acqnired property.

<p>1. Where the thing bequeathed is by the terms of the will individuated so that it is distinguished from all others of the same kind, it is a “specific legacy,” and hence a bequest of all “my household goods, cash on hand or in bank, life insurance and all other personal property of every description” was a “specific legacy” so far as the household goods, cash, and insurance were concerned, though a “general legacy” as to any other property passing by the bequest.</p> <p>2. A.bequest of “my stock, right, title and interest” in a certain company was a “specific legacy.”</p> <p>3. Where personal property other than that included in specific legacies is insufficient to pay debts to the estate, the specific legacies must abate proportionately.</p>

<p>On bill io charge estate of W. Ann Brown. Hearing on bill, answer, replication and proofs.</p>

On bill, &c., for injunction. The will of James H. Morris, deceased, provides: “Second.

<p>1. Upon application for an injunction pendente Ute under a bill seeking to prevent the defendant from conducting in one of the municipalities of this state a sanatorium for the treatment of tuberculosis, it appearing from the affidavits filed on behalf of the defendant that such an institution is not for the treatment of persons afflicted with pulmonary tuberculosis, but exclusively for the treatment" of children afflicted with bone tuberculosis, the application was denied, upon the ground that the work to be conducted was a lawful work, and is not a source of danger and is to be conducted in a proper manner and will not occasion real injury to others.</p> <p>2. Whether any of the provisions of the statute concerning tuberculosis (P. L. 1910 v- 279) are intended to include bone tuberculosis it is unnecessary now to consider.</p>

<p>1. A municipal corporation cannot be bound by an engagement which it has no power to make, and the corporate powers of such a corporation cannot be extended by the operation of the doctrine of estoppel. •</p> <p>2. The corporate powers of defendant corporation as defined by the statute relating to the government of cities (P. L. 1891 p. 46) failing to include any power of common council to grant the privilege of laying-pipes for the purpose named in or upon the public streets within the municipality, such a grant is void.</p> <p>3. Even if the privilege be valid for one purpose, it is the duty of the court to refuse to restrain the municipality from interfering with acts for other purposes in excess of the grant.</p>

<p>On bill, &e., for injunction.</p>

<p>1. Under the powers conferred by the general act concerning water companies (2 Gen. Stat. p. 2202), a water company in the lawful exercise of its rights is authorized to locate its pipes in a public highway operated as a turnpike, without the consent and against the will of the turnpike company.</p> <p>2. For the purpose of preliminary relief it must be considered that such water company is also empowered by the legislature under this statute to lay its pipes in highways without the necessity of a precedent municipal consent, provided the pipes are laid in the manner stated in the statute.</p> <p>3. A consolidated water company is within the provisions of this statute.</p> <p>4. On an application for preliminary relief in a court of first instance, the constitutionality of a statute may be assumed.</p> <p>5. The title to this statute embraces townships in its enumeration of “cities, towns and villages.”</p>

<p>1. Under a municipal ordinance providing that an unsafe building must be repaired, or that it may be ordered to be torn down if the building inspector declares that it cannot be made safe, an adjudication by the city building department, condemning the building as unsafe and ordering it to be torn down, without any previous finding by the building inspector that it cannot be made safe, and without notice to the owner and opportunity to the owner to be heard, is void.</p> <p>2. The owner of a building condemned as unsafe by a void adjudication of a municipal building department is entitled to a preliminary injunction against the execution of the order of destruction.</p>

<p>1. In a suit by an orphanage to recover the possession of a child which had been given respondent on trial, evidence held to show that her financial circumstances were too precarious to warrant a decree giving the child into her permanent custody, but that it should he returned to the care of the orphanage.</p> <p>2. An orphanage which has received a child under an agreement with its parent and undertaken the care of it, stands in loco parentis, and may bring suit for the recovery of the child where it has come into the possession of a third person.</p> <p>3. Where an orphanage has received a child under an agreement with its parent and undertaken the care of it, its care must be exercised under the supervision of a competent court.</p> <p>4. Where an orphanage had given a child to respondent on six months’ trial, it could regain the child within that time subject to the approval of the court.</p> <p>5. The chancery court takes cognizance of cases involving the custody of children legally domiciled within this state, both by virtue of its general jurisdiction, and under laws 1902 (P. L. 1902 p. 259), and by virtue of its general jurisdiction has the same authority and control over the care and custody of infants who are actually residents of this state as it has over those that are domiciled here.</p> <p>6. P. L. 1901 p. 890, providing for the regulation of the importation of dependent children and imposing a penalty for violation thereof, has nothing to do with a judgment touching the custody of children in a contentious proceeding.</p>

<p>1. Where an act conferring power on a gas light corporation has been in force forty years, and gas mains have been laid under its authority for nearly thirty years with the acquiescence of.the public, and such acquiescence has encouraged the corporation to extend its gas mains beyond the city limits for the accommodation of the people residing there, the court, on a motion for a preliminary injunction to restrain interference with the laying of mains beyond the city limits, will not hold that the right of the corporation to lay the mains does not exist.</p> <p>2. The power conferred on a gas light corporation by an act authorizing it to continue and lay its gas mains beyond the limits of a city and within- designated counties as it may from time to time be deemed expedient is not exceeded by the corporation extending its mains to a borough in one of the counties and into territory which has never been supplied with gas.</p> <p>3. The question whether a gas light corporation suing to restrain a municipality from interfering with the laying of gas mains has by lapse of time lost the right to lay the mains will not be decided on a motion by the corporation for a preliminary injunction.</p> <p>4. The forfeiture of a corporate franchise for non-user can only be effectuated at the suit of the state.</p> <p>5. An a'ct and its supplements are construed as one law.</p> <p>6. Gonst. Amend. 1S75 art. 1¡. § 7 ¶ 11, prohibiting the piassage of local or special laws granting to any corporation anj* exclusive privilege, does not affect local or special laws in operation before its adoption, and hence does not apply to a special statute granting to a gas light corporation the right to extend its mains into described territory.</p> <p>7. The object of Gonst. Amend. 1875 art. 1¡ § 7 ¶ 11, prohibiting the passage of local or special laws granting-to any corporation exclusive privileges, is to prevent the legislature from granting corporate powers to one set of applicants and refusing to another set similar corporate powers.</p> <p>S. Act April 21st, 1S76 (P. L. 1876 p. 285), making it lawful for any corporation to file before the expiration of its charter a certificate declaring its purpose that the period of its existence shall be extended not exceeding a specified time, &c., must be so construed as to effectuate the purpose of Gonst. Amend. 1875 art. 1¡ § 7 ¶ 11, prohibiting the passage of any local or special law granting to any corporation exclusive privileges, and must not be construed so as to give to any one corporation any special privilege which it does not give to any other corporation applying therefor.</p> <p>9. Under P. L. 1876 p. 309, authorizing the formation of gas light corporations, and act April 21st, 1S76 (P. L. 1876 p. 235), authorizing a corporation to extend its period of existence by filing with the secretary of state a certificate, a gas light corporation authorized to continue and lay its mains beyond the limits of a city and within designated counties, filing with the secretary of state a certificate declaring its desire that the period of its existence shall be extended, does not thereby acquire any special privileges not procurable by other corporations; but, if the certificate vests exclusive privileges in the corporation, the certificate is void as to the exclusive privileges.</p> <p>10. The power conferred by the Borough act (P. L. 1897 p. 285), empowering borough councils to pass ordinances prescribing the manner in which corporations shall exercise any privilege granted in the use of any street or in digging up the same for any purpose, is a mere regulative one, and does not authorize an arbitrary refusal to permit a gas light corporation to lay its mains in the streets of the city, and the arbitrary refusal of the mayor of a citj' to grant such a permit amounts to a prohibition and is unauthorized.</p> <p>11. Where a corporation suing to restrain a municipality from interfering with the laying of gas mains asks for a preliminary injunction, the court on granting the injunction will require the corporation to file a stipulation consenting that the court on the municipality succeeding on final hearing may require the corporation to remove the work done by it pending the litigation.</p>

<p>Tlie bill is filed by holders of preferred stock of the defendant company; it prays that it may be compelled by final decree to establish a deficiency fund which shall be available to redeem the preferred stock at par upon the dissolution of the corporation, and that it may be enjoined from declaring any further dividends among its common stockholders, until such fund shall have been provided. The defendant corporation holds a perpetual charter and there is no dissolution pending or contemplated. The complainants and one other person who is now dead were the sole stockholders of a Pennsylvania corporation called the Brownsville Company. On March 27th, 1903, the Brownsville Company entered into a contract with the defendant by which it sold to the defendant all its assets and property of every kind, excepting cash in bank and bills and accounts receivable, in consideration of the payment of $20,000 cash and $80,000 in five annual installments, and of the issue to the Brownsville Company of preferred stock of the defendant of the par value of $400,000 which the contract says</p> <p>“shall be preferred as_to dividends and distribution and entitled to dividends at the rate of five per cent, per annum payable quarterly from April 1st, 1903, said dividends to be cumulative; said stock to be nonvoting stock, and the certificates for said stock shall provide that no preferential or co-ordinate lien or claim shall be created without the consent of the holders of a majority of such preferred stock, and such preferred stock shall be redeemable on any dividend day at §105 and accrued dividends, such redemption to be made pro rata among all the holders of such preferred stock.”</p> <p>There were further provisions for the purchase by the defendant of certain merchandise and raw materials of the Brownsville Company, but inasmuch as these were to be paid for in cash on an appraisement, they cut no figure in this case. The defendant at that time had a capital share of $1,500,000 common stock, of which $1,200,000 had been issued. In order to provide for the preferred stock which it was bound to deliver to the Brownsville Companj’, it on April 6th, 1903, amended its charter so as to provide for the issuing of $400,000 preferred stock; the amended certificate contains these words:</p> <p>“The preferred stock shall entitle the holders thereof to receive out of the net earnings dividends at the rate of but never exceeding five per centum per annum payable quarterly, cumulative from the first day of April, 1903, before any dividends shall be set apart or paid on the common stock; the remainder of said net earnings shall be declared as divi-''''dends upon the common stock; upon dissolution the holders of the preferred stock shall be entitled to receive from the assets 6f the corporation the par value thereof; the remainder of said assets shall be paid to the holders of the common stock.”</p> <p>When the amendment of the certificate was completed, the Brownsville Company transferred to the defendant the property which it had agreed to transfer, and the defendant paid to it the cash and issued to it the preferred stock which had been bargained for. The certificates therefor provided that the holders of the preferred stock should be entitled to receive when and as declared from the surplus or net profits of the corporation dividends at tire rate of five per centum per annum from April 1st, 1903, quarterly; that such dividends should be cumulative and should be payable before any dividends on the common stock or any other stock of the corporation might be paid or set apart,</p> <p>fc^“so that if in any year dividends amounting to five per centum shall not have been paid thereon the deficiency shall be made payable before any dividends shall be paid upon the common or any other stock or set apart therefor; the remaining net earnings shall be available for the purpose</p> <p>of dividends upon the common stock; in the event of any liquidation, dissolution or -winding up (whether voluntarily or involuntarily) of the corporation, the holders of the preferred stock shall be entitled to be paid in full out of the assets of the corporation, both the par amount of the ; shares and the unpaid dividends accrued thereon before any amount shall j be paid to the holders of the common or other stock.”</p> <p>There is likewise a provision forbidding co-ordinate or preferential liens upon the company’s property without the consent in writing of the holders of the majority of the preferred stock issued.</p> <p>Upon the dissolution of the Brownsville Company, and the division of its assets, the whole issue of the preferred stock of the defendant was divided amongst its shareholders, and in this way the complainants became shareholders in the defendant corporation.</p> <p>The balance sheet of the defendant as of January 1st, 1909, shows total assets of $2,058,206.88, nearly all represented by patents, good will and the Brownsville purchase, which also represented patents to the extent of $'-100,000.</p> <p>The company has been successful and has made large profits, has already paid the dividends on the preferred stock and has likewise paid large dividends on the common stock, in recent years as much as sixteen per centum per annum. The complainants assert that if this course of business continues, at the time of the expiration of the patents, in which nearly the whole capital stock of the company is invested, there will be neither patents nor good will nor propertjr of any particular value left from which the defendant will be able to realize money to pay the par value of the preferred shares upon dissolution, and they claim therefore that the company should be compelled for their protection to establish a deficiency or sinking fund for the protection of the outstanding preferred stock.</p>

<p>The complainant is a corporation affiliated with the Congregational church at large, whose principal business consists in furnishing weak and struggling churches with funds with which to erect church buildings and parsonages, securing any advances made by it by two methods, one called a “grant” mortgage and the other a “loan” mortgage. In a suit brought by the complainant to foreclose a mortgage made by a needy church to a trustee to secure a sum due to certain of its creditors and assigned to the complainant to secure to it the repayment of advances made by it to another such church (one of the defendants), into which the mortgagor church had become merged upon the terms that the latter should pay the debts of the church so merged (secured by the mortgage), said defendant claimed that in the taking of the assignment it was complainant’s intention to collect for the benefit of said defendant by general subscription for the purpose indicated such amount of money as could be collected for the purpose, and that the remainder should be advanced by the complainant to said defendant in the form of a mortgage known as a “grant” (practically a gift), evidence examined, and held that such contention was untenable, and that a decree for the complainant should be' made for the sum actually advanced by it.</p>

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

<p>1. In a contest between judgment creditors for surplus moneys in a foreclosure suit arising from the sale of the judgment debtor’s land conveyed by him to defraud Ms creditors, the surplus will be awarded to that judgment creditor to be applied on his judgment, so far as it will extend, who alone, not only recovered judgment and made a levy on the land, but also filed a bill in this court in aid of his judgment to have the debtor’s conveyance set aside as fraudulent and void as to such creditor, and prosecuted such suit to a decree in his favor, notwithstanding the other judgment creditors have prior judgments and prior levies on the samé land.</p> <p>2. A creditor’s suit in this court in aid of a judgment at law is entirely self-serving, and one for the benefit of the complainant alone.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported in 75 N. J. Eq. (5 Buch.) 136.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 74 N. J. Eq. (4 Bitch.) 852.</p>

<p>1. A stipulation of a contract awarding to a person the right to collect and remove the garbage of a city for a specified sum that no assignment of the contract or any' part thereof shall be made without the consent of the city first obtained tends to discourage collusion among probable bidders, and to prevent extortionate contracts from being forced on the city; and equity will not deprive a municipality of the protection of such a stipulation by compelling the performance of a prior contract between such person and others for the carrying on of the contract as a partnership.</p> <p>2. Where a person has entered into two independent contracts with different persons, each valid and enforceable, equity will not compel him to violate provisions of one of the contracts to the injury of the other party thereto for the purpose of affording- relief under the other contract.</p>

C. (orally). “This bill is filed by Mrs. Faulkner, the wife of Alfred Faulkner, against John Wassmer and Henry M. Eadcliffe for the purpose of rescinding a deed of conveyance of lands on Smith street in the village of Irvington. The deed was dated on the 1st day of July, 1908; was acknowledged on the 9th day of July, 1908, and was recorded on the same day.

<p>1. It is an established rule of construction that the words of a private grant, if equally susceptible of two meanings, shall be taken most strongly against him who uses them.</p> <p>2. In a deed the words of description were “three hundred inches of water under a two and one-half feet head.” It was shown that this was the equivalent of nine hundred and forty-eight cubic feet of water per minute if measured by the “practical inch,” and upwards of one thousand five hundred cubic feet per minute if measured by the “theoretical inch.” There was nothing in the context or in the contemporaneous circumstances to show whether the larger or the more restricted meaning was intended. — Held, that as against the grantor and those claiming under subsequent grants from him the larger meaning would be taken as intended.</p> <p>3. ' A grantor cannot by creating practical difficulties, after lie has made a grant that is free from them, defeat a grant already made or influence its legal construction.</p> <p>4. A court required by the issue to determine the legal rights of parties by construing their written grants may upon proper pleading assume the further task of laying down a practical rule for their enjoyment, but if either must give way it must be the latter, since the prime office of courts is to determine rights, not to mould them to circumstances.</p>

<p>On appeal from a decree of tlie court of chancery advised by Yice-Chancellor Howell, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 217.</p>

<p>1. A dedication of land which arises in part out of deeds for lots delineated upon a map is subject to private rights created by the deeds not inconsistent with the dedication.</p> <p>2. A provision in deeds for lots delineated upon a map out of which in part there arises a dedication of an ocean beach, that lot owners may erect neat bath houses, is not inconsistent with the ordinary purposes for which such a beach is used.</p> <p>3. Deeds for lots delineated upon a map upon which a portion of the tract was marked “beach,” provided that all the land designated as beach should be open and free to the use of all the lot owners, but no buildings except neat bath houses should be erected thereon, and those only by owners of certain lots. — Held, that the effect of the provision was to give the owners of those lots the right to erect bath houses.</p> <p>4. The right of lot owners to erect bath houses upon -an ocean beach includes the right to maintain such ropes for bathing as are in common use.</p>

<p>1. The formalities prescribed by the supplement of March 12th, 1851, to “An act concerning wills” (Gen. Stat. p. 3160), upon which all valid wills must rest are- — (1) that the will shall be in writing; (2) that it shall be signed by the testator; (3) that the signature of the testator shall either be made or acknowledged by him in the presence of two witnesses who shall be present at the same time; (4) that the writing shall be declared by the testator to be his last will, in the presence of those witnesses, present at the same time as aforesaid, and (5) that the two witnesses shall subscribe their names thereto in the presence of the testator.</p> <p>2. It is essential to the validity of a will that everything required to be done by the testator shall precede in point of time the subscription of the witnesses.</p> <p>3. Where it appears by the uncontradicted affirmative testimony of the subscribing witnesses to an alleged will that the signature of the testator was neither made nor acknowledged by him in the presence of the subscribing witnesses, the instrument must be denied probate notwithstanding the fact that there was annexed to the writing an attestation clause, “Signed, sealed and delivered in the presence of,” subscribed by such witnesses.</p>

<p>1. Where a contract of insurance is made payable to designated beneficiaries, and prescribes a procedure for divesting their interest, in favor of another beneficiary, such interest can be divested, in the absence of an assignment by the beneficiaries themselves, only by following the procedure so prescribed.</p> <p>2. Where a contract of life insurance is payable primarily to designated beneficiaries and on a certain contingency to the estate of the party whose life is insured, an assignment by such party of his right, title and interest in the policy will convey only the contingent interest of his estate.</p> <p>3. Landrum v. Knowles, 22 N. J. Eq. (7 C. E. Gr.) 594, distinguished.</p>

<p>Complainant’s predecessor in title, a land company, laid out a tract of land as a camp meeting' ground surrounded by building lots and streets and sold the lots to various purchasers subject to rules and regulations to be made by it for the “protection, government and control of the camp meetings and other assemblies to be holden within their premises from year to year.” Finally the land company sold the fee of the camp ground, which passed by mesne conveyance to the complainant. — Held, that while complainant as owner of the fee had a standing in a court of equity to restrain the use of the “camp ground” in any other manner than subject to the rules and regulations referred to, its individual consent as owner of the fee was not required for such use.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported in 75 N. J. Eq. (5 Buch.) 491.</p>

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

<p>On appeals from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 35.</p>

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

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 423.</p>

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

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 74 N. J. Eq. (4 Buch.) 49.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported in 75 N. J. Eq. (5 Buch.) 462.</p>

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

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

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

<p>On appeal from a decree of the prerogative court advised by Vice-Ordinary Walker.</p>

<p>On appeal- from a decree of foreclosure advised by Vice-Chancellor Garrison.</p>