Volume 80 — New Jersey Equity Reports

<p>On application, of P. J. Bowers for payment. Heard on petition and answers, affidavits and stipulations.</p>

<p>1. A preliminary injunction will not be granted, where the plaintiff's right, which the injunction is to protect, is doubtful.</p> <p>2. At common law, and in the absence of lawful statutory restrictions, an owner may restrain the stringing of wires over lands within the highway, of which he owns the fee, though poles to sustain the wires are erected onty on lands of adjoining owners; and a statute should not be construed as taking away this right, unless it does so clearly, rather than by liberal construction or implication.</p>

<p>1. That the beneficiaries of an estate have instituted litigation against him. and have made unfair and unjust charges, does not entitle an administrator to commissions, where he lias acted for several years under an agreement that commissions should not be allowed; the agreement being revocable only upon notice.</p> <p>2. Even if two beneficiaries of an estate agreed to aid the administrator in managing the estate in consideration of his promise to charge no commissions, and failed to render assistance, the administrator cannot recover commissions without showing that he asked for the assistance and was refused, and that notice thereof was given to the parties interested.</p>

<p>Evidence held to show that a debt for which defendant’s interest in an estate had been .assigned had been paid, and that the assignments, except so far as they secured the debt while it existed, were fraudulent and void as to the assignor’s subsequent creditors.</p>

Suit for fhe specific performance of a written contract to convey real estate. Heard on bill, answer, replication and proofs taken in open court.

<p>1. In a very large class of cases invoking tlie jurisdiction of this court, and where there is a complete remedy at law, if the defendant joins issue upon the allegations of the bill, and the case thus goes to final hearing-upon the pleadings, and then is argued and submitted to the court for decision, the court will decide the case, although, if objection had been made in limine by demurrer, or even by an answer, the court might turn the parties away, on the ground that they had mistaken their forum and that the matter was one purely of legal cognizance.</p> <p>2. But if a determination and a decree will be in accordance with the forms and methods of courts of equity, then at the end of the trial the court will not ordinarily, of its own motion, turn the parties away and render all their litigation abortive; but the court can always for its own protection, for the maintenance of our dual system whenever necessary to keep sharply distinguished the functions of the law courts and equity courts, of its own motion, decline to determine a purely legal controversy, simply because the parties have seen fit to endeavor to impose that du-ty upon the court.</p> <p>3. Courts of equity intervene with great reluctance with the collection of public revenues, and on a hill seeking to have this court interfere with the collection of taxes, the complainant does not occupy a position which commends her to a court o'f conscience, where it appears that she has been in possession of the lands in question for years, has paid no taxes, for twenty-five or thirty years, and asks the court to intervene and remove as a cloud, or declare void, the tax titles held by the defendant municipality that are many years old, and where since those tax titles were made she. has gone on in possession, collecting the rents, issues and profits of .this land and paying nothing, making no tender in her bill of any of the accumulations of taxes due and unpaid for a generation nearly. Such a case, if any, presented by the bill is purely one of legal cognizance.</p> <p>■ 4. A court of equity will not intervene and declare void the adjusted amount of taxes under the Martin act and deeds made thereunder, because of strictly legal defects in the proceedings, even though the parties seek to impose that duty upon it.</p> <p>5. There is a very wide distinction between any possible exercise of jurisdiction by this court under the act to quiet titles, or under the original jurisdiction of the court to remove clouds, where the object of the attack is an ordinary conveyance, a colorable conveyance of any kind, on the one hand; and on the other hand the exercise of such jurisdiction to adjudicate upon the lien of the public authorities for taxes and assessments.</p> <p>6. The bill in this suit is not filed under the act of 1870, the act to quiet titles, but prays the court, in the exercise of its general jurisdiction to enjoin the collection of these taxes, assessments and liens, to examine all the legal points in regard to them, go through all the proceedings and adjudge that the tax and assessment liens are void, and this the court will not do.</p>

<p>Final hearing on pleadings and proofs.</p>

<p>On application for a receiver pending suit.</p>

<p>Where a son, who had only shortly reached his majority, conveyed all o£ his property, which consisted of a tract of land, by way of gift to his father, who was a masterful man,-the conveyance is invalid, it appearing that the son had no competent disinterested advice.</p>

<p>1. One who seeks to enjoin the violation of a building restriction must act promptly upon being advised of that which he asserts does or will constitute the violation.</p> <p>2. Where complainants and defendant owned adjoining lots acquired from a common source of title under a restrictive covenant providing that no building should be erected within ten feet of the street line, and where the complainants, observing that a building which was being erected by the defendant projected over the ten-foot line with its eaves and with bay windows for which sills had, been laid, notified the defendant that they would consider the bay windows a violation of the covenant, but made no mention of the eaves, they were not entitled to an injunction as to the eaves, especially where almost every other house on the street on lots encumbered with the same restriction projected over the ten-foot line; the defendant being warranted in concluding that the projection of the eaves was unobjectionable to the complainants.</p> <p>3. Restrictive covenants are strictly construed against the person seeking to enforce them.</p> <p>4. Restrictive covenants will not be enforced by injunction when they are vague or uncertain, or where the right to relief is doubtful.</p> <p>5. Restrictive covenants, to be enforceable in equity, must be reasonable.</p> <p>6. The meaning of a restrictive covenant must be ascertained not only from its language, but also from the circumstances of its creation and its obvious purpose.</p> <p>7. A restrictive covenant, providing that no building should be erected upon the lot within ten feet of the street line, and that the ten-foot strip should be kept open and unencumbered, except that light, open fences, noi more than six feet in height, might be built to enclose a yard, did not prohibit the projection of steps from the front of the house over upon the ten-foot strip.</p>

<p>On bill, &c., of wife, by next friend, to enjoin husband from interfering with her possession of certain real estate.</p>

<p>Hearing on return of order to show cause why service of process should not be set aside.</p>

<p>Final Fearing on pleadings and proof.</p>

Final hearing on hill for injunction. The bill seeks the enforcement of a restrictive building covenant, The covenant which complainants seek to enforce is found in a written agreement wherein defendants agreed to sell to complainant William C. Supplee a certain house and lot, and among other things covenanted that no building should be erected on vendors’ adjoining lot nearer than three feet from the line which separated the two lots.

<p>1. Under equitable principles, the chancery court will not enjoin alleged unfair competition by the nse of a trade-name similar to complainants’ name “London Shop,” so far as complainants seek to benefit from a suggestion by their name that their stores are connected with a London store, which is untrue.</p> <p>2. In a suit to restrain the use of the trade-name “I’age of London,” on the ground that its use amounts to unfair competition with complainants’ business conducted under the name “London Shop,” evidence held not to show that the use of its name tended to deceive the public, so as to be unfair competition.</p> <p>3. .There can be no exclusive right to the use of the word “London” as a trade-name.</p> <p>4. The test of whether the use of a trade-name amounts to unfair competition is whether the public is likely to be deceived thereby.</p>

Final hearing on bill'of interpleader, &c. The present controversy is to determine the order in- which certain claims against a fund shall be paid. The fund has been deposited with this court by the board of education of the borough of Riverton.under a bill of interpleader.

<p>1. The second paragraph of a will gave to testator’s executors $25,000, in trust to pay the income to testator’s son during his natural life, but further provided that said executors could terminate “said trust and to pay to my said Son the said sum of $25,000 whenever in the opinion of my executors his mental and physical condition is such that he is competent to attend to affairs,” but that if the son die during the continuance of the trust, and before the payment of such sum to him, that it be paid to his issue; and the fourth clause gave the residue to testator’s niece, and, in case she he not living at testator’s death, then to her issue, and if there be no issue then living to testator’s son.—Held, that the authority to pay the $25,000 to testator’s son was a mere naked power resting in the executors’ discretion, and not a power coupled with a trust, so that the executors could not be compelled to pay it to the son, upon a showing that the son was competent to attend to his affairs.</p> <p>2. A mere discretion in the trustees is a mere power; but an imperative discretion implies a trust.</p> <p>3. If one had no control during his lifetime over the corpus of a trust fund held in trust for him, he could not dispose of it by will.</p>

<p>On motion to adjudge respondent of contempt.</p>

<p>1. When a defendant sets himself up as an inventor, and for a valuable consideration induces another party to take a license under his so-called invention, or to buy his patents, it does not lie in his mouth to say that the patent is bad, or that the application is for a thing for which letters patent are not allowable, or, in' other words, having represented that he has a patentable invention on which he based the contract which furnished him with money, it does not lie in his mouth to say that the so-called invention is not a patentable thing; and when he gives another man the exclusive right to use the thing which he says is patentable, he has no right whatever to enter into the manufacture of that very same article in competition with the man with whom he has made such a contract, upon a good consideration.</p> <p>2. An agreement in writing made between the complainant and the defendant, after reciting that the defendant had patentable inventions, for a valuable consideration expressed in the contract, gave to the complainant the exclusive right to use those patentable inventions in the manufacture of mechanical chain grate stokers. In a suit by the complainant as licensee against the defendant as licensor to restrain him from infringement—Held, (1) that the validity of the patent or patents is not involved; and (2) that it does not lie in the defendant’s mouth to say that they were not patentable, nor to say that the agreement did not mean to include applications which had been filed at the -time the agreement was made but on which no patents had yet been issued; and the defendant’s action in building a mechanical chain grate stoker for another party was a gross violation of -his contract, and is a subject-matter over which this court has jurisdiction.</p> <p>3. The court will retain jurisdiction over the cause of action in this suit, but decline to issue an injunction to prevent the defendant from violating the covenants made by him in the agreement, for the reason that it does not appear but that the infringing machine was finished and set up and sold and ready for operation at the time the bill was filed.</p> <p>4. Upon amendment of the hill an accounting may be had for the profits made by the defendant in the construction of the infringing machine.</p>

<p>By a codicil to his will testator gave to his executors $6,000, in trust, to be invested and the interest to be applied to keeping in good repair and condition that part of the graveyard attached to a certain church wherein his family were buried, also the rest of the graveyard; and if the church should fail to make up the salary of the pasto.r the balance of the interest or so much as necessary should go toward the salary.— Held, that the entire bequest is void because it includes an object of charity, that is, a contribution toward the salary of the pastor of a church, which is a good bequest, and an object not charitable, that is, a provision for keeping a graveyard in order, which is void as a perpetuity, and, the gift being indivisible, the whole is bad for uncertainty.</p>

<p>1. When a corporation is insolvent the holders of its capital stock not paid for are obligated to pay so much of what is unpaid, on the stock as will satisfy the claims of corporate creditors and meet the expenses of winding up its affairs.</p> <p>2. The proper tribunal to ascertain the amount necessary for these purposes is a court of equity, as the courts of law ■ have no procedure adapted to such a calculation; and the ascertainment may be made on a petition filed by the receiver against stockholders in the suit wherein the corporation was adjudged to be insolvent, for a stockholder is an integral part of the corporation.</p> <p>3. When in such a proceeding an assessment on the stock has been ordered by the court of chancery to meet corporate liabilities, and an action is brought against a stockholder to collect his quota he cannot in the action at law question the propriety of the assessment.</p> <p>4. In the absence of all of the directors of a corporation a quorum of the board has no power to do corporate acts, unless notice of the time, place and object of the meeting was given to each and every member, including the absentees, or unless there be a standing rule fixing times for stated meetings, which operates as a constructive notice and is sufficient; or unless, further, a waiver of notice be signed by the absentees before the meeting. The reason is this: Each member of a corporate body has the right of consultation with the other members and has the right -to be heard upon all questions considered, and it is presumed that if the absent members had been present they might have dissented and their arguments might have convinced the majority of the unwisdom of their proposed action, and thus have produced a different result. If, however, they' had notice and failed to attend they waived their rights: 'likewise, if they signed a waiver of notice prior to the meeting; but consent given subsequent to the meeting looking to ratification of what was done, is without force to validate the action taken.</p> <p>o. Where, however, capital stock of a corporation is issued under a resolution of the board of directors, which is invalid because passed at a meeting at which there were absentees who had no notice, nevertheless, acceptance of certificates of stock by the shareholders validates the action of the directors in that regard; and this is not dependent upon the doctrine of ratification, which, in turn, depends upon knowledge of all material facts, but upon the mere acceptance of the certificates of stock without paying for them; and such acceptance renders the holders liable without any formal subscription on their part.</p> <p>G. Where solicitors for • a corporation offered one share of common stock as a bonus with every two shares of preferred .stock for which the public would subscribe, without any representation as to how the stock was to be issued, and such bonus shares were actually issued by and from the corporation and accepted' by subscribers for preferred stock, such certificates constitute an original issue of corporate stock, notwithstanding the shares were first issued to promoters, as for property purchased, and by them turned back to. the company for the purpose of being issued to such subscribers. And the holders of stock issued as a bonus are always required to pay for their shares to satisfy the claims of creditors. -</p> <p>7. Even the solemnly expressed judgment of the board of directors of a corporation cannot impart value to property which has no va'lue; and neither bookkeeping nor mere recitative language in resolutions creating values can be accepted as the equivalent of proof of tona ficle value required by the statute where stock is issued for property purchased.</p> <p>S. A corporation may issue stock to the amount of the value of the property, but the value of the property must at least equal the face value of the stock.</p> <p>■9. The judgment of directors who are .by law. entrusted with the power to issue stock to the amount of the value of the property, and on whom, therefore, is placed the first duty of valuing, must be accorded considerable weight; but their judgment is not conclusive when subject to judicial scrutiny; nor is it necessary that conscious overvaluation or any other .form of fraudulent conduct on the part of the directors should be shown to justify judicial interposition; their honest judgment, if reached without due consideration into the elements of value, or if based in part upon an estimate of matters which really are not property, or if warped by self-interest, may lead to a violation of the rule for valuing as surely as would corrupt motive.</p> <p>. 10. In a suit between stockholders it seems that after the stock has once been issue.d the holder shall not be liable for any further payment in the absence of actual fraud in the transaction; but this does not operate as against creditors, for when the rights of the creditors of an insolvent corporation intervene a different rule prevails.</p> <p>11. Corporate stock issued, outstanding and unpaid for, is a trust fund for the .benefit of creditors; and this doctrine is a hard and fast rule, which is never relaxed. In this state, however, the stockholder’s liability to creditors no longer depends alone upon the trust fund theory, but is held to be statutory. And while an issue of bonus stock was formerly good as between the company and its stockholders under an agreement therefor, yet it is now held that these contracts are void, but it is also held that stockholders remain liable to a receiver for the benefit of creditors.</p> <p>12. The provision in section 49 of the Corporation act that in the absence of actual fraud in the transaction the judgment of the directors as to the value of property purchased shall be conclusive, introduced no novelty into the law but was merely a declarative enactment of what was and had been the settled law and policy in this state.</p> <p>13. The original issue of corporate stock is a special function, in the exercise of which the legislature has fixed a standard to be observed, and it is the duty of the courts, so far as their jurisdiction extends, to see that this standard is not violated either intentionally or unintentionally.</p> <p>14. Neither stockholders nor directors have any right to make a present capitalization of prospective future profits of a corporation; and, consequently, they cannot issue capital stock therefor, as for property purchased.</p> <p>15. In cases where stock is issued for property purchased our statute contemplates an actual appraisement of such property by the board of directors.</p> <p>16. In an issue of corporate stock for property purchased, and property taken over at a grossly excessive value, the stockholders are, nevertheless, entitled to have credited to the payment for stock the just and fair value of the property conveyed to, and services rendered for, the company, and for which stock was issued, just as surely as they must be charged for the stock where valúe is absent.</p> <p>17. Where a corporation takes over a lease by assignment the value of that lease to the corporation is its rental value for the outstanding, unexpired term, plus any other things of value to be received by the lessee under the lease.</p> <p>18. Where directors of a corporation take over an unexpired lease but fail to appraise it according to its rental value, and give it a value in excess of what it actually has, their judgment will be reviewed by this court, which will exercise its judgment now as of the time when they should have acted, in substitution for the judgment they should have formed; and the credit to be given the stockholders will be limited to the then fair value of the lease; that is, to its value as of the date and time when it should have been valued originally; neither subsequent success nor failure being permitted to operate in the forming of a mine pro tuno judgment, for, while neither the hope and expectation of success can create property of that which is not property, equally the failure of those hopes and expectations cannot operate to destroy that which was and is property.</p> <p>19. The stockholders of an insolvent corporation have an absolute right to the protection of whatever there was fairly, reasonably and honestly of value in the property at the time it was acquired, and any extremely low price brought by the property at the receiver’s sale is no criterion of its value.</p> <p>20. The true method of calculating the value of an unexpired lease is not by ascertaining the yearly rental value, and then multiplying the figures by the number of years the lease has to run, but by calculating its value by the annuity tables; that is, by multiplying the annual value by the value of one dollar per year for the number of years in the unexpired term.</p> <p>21. While formerly subscriptions to capital stock could only be paid in money, stock is now issued for work and labor as well as for the purchase of property; but the cases in which such transactions are upheld are only those where the services rendered or property purchased are equal in value to the stock issued therefor.</p> <p>22. Property is something to which the owner can have title. Title may be evidenced by an appropriate instrument. No instrument for the conveyance of things which are not property is known to the law, and none can be contrived.</p> <p>23. Promoters of a corporation are obliged to select competent persons as directors—men urho would act wholly in the interest of future stockholders, and who would not be biased or influenced by the persuasions of proposed vendors or by friendship for them—and to make to those directors a disclosure of all material facts; but where,' however, the promoters are themselves directors and constitute a majority of the board, it is their duty to act as an independent board of directors with full knowledge would have acted, namely, to make a careful inventory and appraisement of all property to be purchased with stock or for cash, and to either issue stock or pay in cash, measure for measure—value for value.</p> <p>24. In making an assessment against stockholders of an insolvent corporation it is the practice of this court, first, to ascertain the whole amount of the unpaid debts; second, in case of unpaid stock subscriptions or stock issued without payment, to determiné the names of such stockholders and the amount due from each; and third, to make an assessment against those stockholders, which, in case an action at law is brought, based upon that assessment, is conclusive against the stockholders. In order to ascertain the whole amount of money necessary to be raised the receiver must compute the amount due on the several claims allowed by him and approved by this court by adding interest on each claim. To the sum of those must be added the cost of the solicitors for the creditors in the proceeding to wind up the corporation and a reasonable counsel fee to complainant, to be fixed by the court on motion for that purpose; also, a round sum to cover the receiver’s compensation and any further expenses which he may incur in the enforcement of the decree against the defendants held liable thereby. This last sum will be liable to reduction, according to the conduct of the defendants in resisting the enforcement of the decree.</p> <p>25. This court has the power to continue a hearing and permit further and other proof to be taken, and that power ought to be exercised where it does not appear that injustice will be done, but where, on the contrary, justice requires it.</p> <p>26. Promoters of an amusement company secured a lease for ten years upon a park, which lease contained a covenant on the part of the lessors that they would furnish certain arc lights for lighting the park during the term of the lease, and that they would sell to the lessee at any time during the term for a certain price. The promoters also negotiated with the builders of amusement devices for the erection and installation in the park of certain such devices, securing considerable reductions from the asking price therefor. They negotiated also with others for appliances and things requirable to equip the park as a going concern. They formed a corporation which took over the lease, installed the amusement devices (through purchases made of the manufacturers thereof), and utilized various other appliances and things negotiated for by the promoters. On the organization of the company the promoters were both stockholders and directors and, as such, passed omnibus resolutions reciting that the lease, devices and other things just mentioned were of the value of $79,000 to the company, and the company resolved to purchase the same from the promoters for $4,000 in cash and $75,000 in common capital stock. The company commenced business and prosecuted it for some time and then failed. A receiver was appointed by this court and he brought this suit to have an assessment made against the stockholders for such sums as will satisfy the claims of creditors—the assets coming to his hands being insufficient for the purpose. The stockholders defended and claimed that the things turned over to the company by the promoters, and for which stock was issued as for property purchased, were worth a greater sum than the cash and par of the stock given therefor. They adduced testimony tending to show that the leased premises were of a value largely in excess of the price for which the company could have purchased the premises in fee under the lease; also that the lighting contract contained in the lease was of very great value; also that large sums had been saved to the company through the negotiations of the promoters in securing reductions from the price of devices which were installed in the park.—Held, that the lease, including the lighting contract therein contained, was property turned over to> the corporation, hut that the basis of ascertaining the value of the lease was erroneous; that its true value is not the difference between what the company would have to give for the property, if it gave it, and the value of the property which it would get, if it got it (assuming there was such difference, great or small), hut that its true value consisted of rental value, including the value of the lighting contract; that the sums said to have been saved to the company through the negotiations of the promoters in securing reductions from the asking price for devices to be installed in the park, were not property at all, and, therefore, could not form the basis for an issue of stock as for property purchased under the statute; that for their services and expenses in promoting the company, securing its organization and starting it upon its career as a going concern, the promoters were entitled to reasonable compensation together with their expenses, and that payment therefor could be made in stock •instead of cash.—Held, further, as there is no proof before the court of the rental value of the leased premises (there being, however, evidence as to the value of the arc lighting contract), and no evidence as to the reasonable value of the promoters’ services, that, while an assessment will have to be made upon the stock issued as for property purchased, to satisfy the claims of creditors, the stockholders are, nevertheless, entitled to have credited on their shares the rental value of the leasehold, including lighting contract, and reasonable compensation for the services of the promoters, together with their expenses. The ascertainment of these values requiring further testimony, and the court having power to open the proofs and take testimony for such purpose, the proofs will be opened.</p>

<p>On aqrpeal from Sussex orphans court.</p>

<p>1. Testatrix, in possession of a bank book showing' a balance due to her, had her daughter’s name entered upon the book, so that the account appeared to be payable either to the mother or to the daughter, and retained the book in her possession until her death, and it was not taken by the daughter until a week later.—Held, that the transaction was not a gift inter vivos.</p> <p>2. Testatrix, a short time before her death was in possession of a bank book showing a balance due to her, and had her daughter’s name entered therein, so that the account appeared to be payable either to her or the daughter; but the book remained in her possession until the day of her death, when she asked her daughter for the satchel containing it, and, after taking it, handed it back to the daughter, saying that the bank book -was in there, and the daughter put it down again, and did not take it out of the satchel until a week later.—Meld, that the transaction was not a gift causa mortis.</p>

Oil appeal from a decree of the Hudson county orphans court admitting to probate certain paper-writings purporting to be the last will and. testament and codicil thereto of Julia H. Chadwick, deceased.

<p>1. An order to show cause why a defendant should not be attached for contempt adjudicates nothing against him, and. is not appealable.</p> <p>2. A reference to a vice-chancellor of the hearing of an order to show cause why defendant should not be adjudged guilty of a contempt of court, containing- instructions to that officer to submit to the chancellor a report of the proceedings had before him' and to advise what order should be made thereon, is legally unobjectionable.</p> <p>3. An allowance of alimony is not a “debt” within the meaning of the constitutional provision forbidding imprisonment for debt, and its payment may be enforced by an attachment for contempt.</p> <p>4. A decree, made in a suit brought by a wife under the statute to compel her husband to support her, which orders a husband to pay as alimony a sum agreed upon by the parties in open court, is not one to enforce the performance of a contract. The obligation of the husband to support the wife arises out of the marital relation and not out of the agreement between them. Such agreement merely liquidates the amount of money which the wife is entitled to receive for her support.</p> <p>5. An order adjudging a defendant to be in contempt for non-payment of alimony, and directing his commitment for such contempt, should definitely state the sum of money which he is required to pay in order to purge himself and be discharged from imprisonment.</p>

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Emery, made in a divorce proceeding, providing for'the custody of an infant child of the parties.</p>

<p>1. A person who has sold the good'will of his business-may, unless he has otherwise covenanted, set up a rival business, but he may not solicit the custom of those who have previously dealt with him.</p> <p>2. A person by his inequitable conduct may deprive himself of a right he might otherwise lawfully claim.</p>

<p>1. Annulment of a mortgage by a corporation given for the benefit of assenting creditors, on the ground that it was a fraudulent conveyance as to non-assenting creditors,' does not deprive the assenting creditors of their right to share pro rata with the non-assenting creditors in the proceeds of the mortgaged property.</p> <p>2. Where complainant, who was made a trustee of a mortgage given by a corporation for the benefit of assenting creditors, was induced by the assenting creditors to advance money in reliance upon the mortgage, he is entitled to subrogation to the rights of the assenting creditors, to the extent required to repay his advances, on distribution of the proceeds of the mortgaged property in the hands of a receiver, after the mortgage was declared void as constituting a fraudulent conveyance as to non-assenting creditors.</p>

<p>1. Section 87 of the General Railroad law (P. L. 1908 p. 690, as amended, P. L. 1908 p. 119) treats the money deposited with the state treasurer at the time of filing the certificate of organization as the moneys of the corporation, and the receiver of an insolvent corporation, to whom such money is paid upon the order of the chancellor, must distribute it, after payment of the expenses of the 'receiver, to such creditors or stockholders as may by law be entitled to receive the same.</p> <p>2. Parties who, at a time when all real stockholders of a railroad corporation were personally acting, at the request of such stockholders and promoters, advanced for the company the deposit of $2,000 per mile of the proposed line, as then required by section 46 of the General Railroad law (Gen. Btat. p. 2649), upon an agreement for repayment out of sales of stock, and that stock equal • at par to the amount advanced should be deposited with a trust company as collateral security, which agreement was never carried out, will be deemed, as against the objection of those claiming under such consenting stockholders, as stockholders pro Jiao ■vice, i. e., as entitled to protection as such on the basis of their having full paid stock to the amount of their cash payment, in the distribution of the fund by the receiver pursuant to section 87 of the General Railroad law (P. L. 1908 p. 690, as amended, P. L. 1908 p. 119).</p> <p>3. Equity looks upon that as done which ought to be done.</p> <p>4. Stockholders of an insolvent railroad corporation who procured stock from the company for which they paid nothing are not entitled to any part of the fund deposited with the state treasurer as required by section 46 of the General Railroad law (Gen. 8tat. p. 2649) on the distribution thereof by a receiver pursuant to section 87 of the General Railroad law (P. L. 1908 p. 119) when such fund is insufficient to pay in full those who in equity hold full paid stock, and of which equity they knew and were instrumental in creating.</p> <p>5. Whatever puts a party on inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty, and would lead to a knowledge of the facts by the exercise of ordinary intelligence and understanding.</p> <p>G. Stockholders of an insolvent railroad corporation who knowingly procured stock from the company by paying only a part of its par value, are not entitled to more than they paid, with interest, out of the fund deposited with the state treasurer as required by section 46 of the General Railroad law (Gen. Stat. p. 2649) on the distribution thereof by a receiver pursuant to section 87 of the General Railroad law (P. L. 1908 p. 119) when such fund is insufficient to pay in full those who in equity hold full paid stock.</p>

The vice-chancellor filed the following memorandum: “Walker, V. C. This is a bill for partition. The complainant is the daughter of the defendant. The lands sought to be partitioned were deeded to the defendant and her husband who thereupon became tenants of the premises by entirety.

The bill in this ease was filed August 24th, 1905, by George H. Gerhard and twenty-one others, stockholders of the Millstone Building and Loan Association of East Millstone, Hew Jersey, in behalf of themselves and all other stockholders, against said association and also Benjamin L. Welsh and others, directors thereof, for the purpose of requiring the directors to make good to said association the amount which had been invested by them in the purchase of twenty-five shares…

<p>1. P. L. 1907 p. 11)0 § It, required domestic insurance companies to elect whether they would conduct a participating or non-participating policy business. A domestic insurance company, which was issuing ordinary policies entitling the holder to participation in profits, and which had put nearly all of its industrial non-participating policies on a basis of participation in profits by means of cash dividends and surrender values, elected to carry on a non-participating- business and to discontinue the issuance of participating policies, and thereafter its directors in good faith made a concession to all holders of industrial policies, including policies issued after the statute, by adding about ten per cent, to the amount of insurance the same premium would pay, claiming that such concession was only a return of excessive premiums, or- a cost or expense necessarily incurred in preserving its business.—Held, that the sole intention of the legislature was to separate the two forms of insurance without reference to the methods adopted by companies in the conduct of their business, and that the concession did not constitute the doing of a participating policy business in violation of the statute.</p> <p>2. P. L. 1907 p. ISt § 1, required insurance companies conducted on the mutual plan, or in which the policyholders were entitled to share in the profits or surplus, to annually ascertain the amount of surplus to which participating policies were entitled, and to apportion to such policies as a class the surplus so ascertained, and carry such amount as a distinct liability to such class of policies on and for which it was accumulated. Directors of a domestic, insurance company, in compliance with the .statute, in February, 1908, ascertained the earnings on participating policies prior to December 81st, 1907, and apportioned a profit of about $2,500,000 to the stockholders, and by resolution not affected with fraud or bad faith placed that amount to its contingent surplus, and deferred its payment until future action by the directors.—Held, in view of the contingencies and liabilities of the company, that then-refusal to make a present distribution of such stockholders’ dividends was a matter of business discretion, and that equity would not interfere by injunction to compel a present distribution.</p> <p>8. In cases where the power of the directors of a corporation is without limitation and free from restraint, they may reserve such profits as may be necessary or judicious for repairs or improvements and to meet contingencies both present and prospective, and thereby defer the distribution of dividends, and their determination to do so, if made in good faith, is final and not subject to judicial revision.</p>

] On appeal from a decree of the court of chancery. Bill of foreclosure in equity by the chancellor of New Jersey against Joseph Towell and others, and the executors of Absalom B. Woodruff, deceased, defendants. Prom a part of the decree for complainant defendants appeal. I

<p>1. A husband condones his wife’s adultery by continuing marital intercourse with her after knowing of her offence.</p> <p>2. On a bill for divorce for adultery, condonation is a conclusion of fact, if not of law, and must be proved by defendant, upon whom lies the burden of proof.</p> <p>3. Evidence held insufficient to show condonation of a wife’s adultery.</p>

Tlie complainant and her husband (who is now deceased and whose share has passed to her) were the owners, by the entirety, of a tract of land on the north side of Clinton avenue, in the city of Newark, which they laid out into building lots, opening-up streets (Shanley, formerly Sanford, avenue, South Tenth street and South Eleventh street, running north and south, and Madison avenue, running east and west) through it, and of which they prepared a plan showing the streets…

<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 Howell, whose opinion is reported in 79 N. J. Eq. (9 Buch.) 124.</p>

<p>On appeal from -a decree of the court of chancery advised by Yiee-Chaneellor Howell, whose opinion is reported in 79 N. J. Eq. (9 Buch.) 124.</p>

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

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

<p>O’n appeal from a- decree of the court of chancery advised by Vice-Chancellor Emery.</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 court of chancery advised by Vice-Chancellor Iiowell, whose opinion is reported ante p.</p>

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

His next of kin was his father, Jerie (or Jerolimo) Sinoveic, residing in Solta, Austria, hi this country his nearest relative was Anton Clarich, a cousin.

<p>On motion to open final decree, vacate enrollment and dismiss complainant’s bill.</p>

<p>1. Where a covenant on the part of a grantor, as to restrictions to be inserted in deeds of adjoining lots, was part of the consideration for the grantee’s deed and was intended to impose a burden on all lots for the benefit of all, equity will restrain its violation, not only against the grantor-covenantor, but also against all subsequent purchasers with notice of the covenant.</p> <p>2. P. L. 1908 p. 1/89 § 1, provides for the recording of all instruments in anywise affecting the title to any lands, tenements or hereditaments, and section 2 provides that the provisions of the Conveyance act shall apply' to-snch instruments. Conveyance act (P. L. 1898 p. 690 § 53) provides that, as to instruments authorized' to be recorded, the record shall thereafter be notice to all subsequent purchasers of the execution of the deed or instrument and its contents.—Held, that a purchaser of a lot liad constructive notice of an agreement of her grantor, contained in a recorded grant of another lot in the same parcel, that no house should be built on any lot sold therein whose front was nearer than a given distance from the street on which the lots fronted.</p> <p>3. One covenant in a deed restricted the grantee from locating his dwelling nearer than sixty feet to a certain street, while another bound (lie grantor not to convey any adjoining lots “except by a deed containing the same restrictions as above recited.” A conveyance of lots located at the comer of the street, on • which the first grantee’s lot fronted, and another street, contained no restriction on the right of the grantee to -build with respect to the first street.—Held, that the agreement with the first grantee referred to the first street, and, although the second purchaser’s house faced the cross street, the side of it must be held to be the front, line intended by the covenant, so as to preclude its being built within sixty feet.</p> <p>4. Though an owner of property, holding under a deed containing a restrictive building covenant, built his house with the' second story overhanging a piazza which extended four feet over the building line fixed, it would, not so substantially affect the beneficial effect and operation of the covenant as to preclude such owner from enforcing it against purchasers of adjoining lots with notice of the .location before their purchase.</p> <p>5. And where the builder located his house as lie did with the consent of his grantor, the original owner of all the property, and as a substantial compliance with the restriction, one subsequently purchasing adjoining lots from such grantor may not treat the location as made without agreement and in the assertion of independent adverse rights under or in violation of the covenant, but is bound by the consent given.</p> <p>6. An owner 'of property is not estopped by laches to enforce a restrictive building covenant against an owner of adjoining property where he objected to the erection of the building as soon as its proposed location was brought to his attention, and any delay in filing a bill for an injunction was caused by a neighborly agreement that work on the building would not be commenced until the controversy over the location was settled; the conduct and statements of the builder and his agents showing that he proceeded with the work at his own risk.</p>

<p>1. Injunction does not lie to compel public officers to perform their ditties respecting enforcement of the criminal law, nor to prevent commission of crime.</p> <p>2. Suit does not lie to enjoin city authorities against permitting an amusement park to be operated by the city’s lessees in violation of Sunday laws, and enjoining- the lessees from so conducting the park; the city not being entitled, as lessor,- to enjoin illegal use of the park.</p> <p>8. An ordinance relating to Sunday amusements did not become a part of a lease, executed by the city, covering an amusement park, in the absence of any reference thereto in the lease.</p> <p>4. On bill against city authorities and the lessees of an amusement park, owned by the city, to enjoin operation of the park in violation of the Sunday laws, a court of equity will not determine 'whether the lease could be made by the mayor and council, instead' of a park1 commission ; complainant’s remedy being to apply to the courts at law for authority to institute an 'action to determine the validity of the lease, as authorized by Practice act § J/4, 3 Oomp. 8iat. 1910 p. J/OGJi-</p>

<p>Where a brick building erected on leased premises by a tenant is a fixture and not removable by the tenant during his term, then the opening of a passageway through the closed wall onto adjoining premises without the landlord’s consent would constitute waste, restrainable by injunction; but, if the entire building is removable, the landlord’s right to injunction against the opening of a passage through the wall is so doubtful that the question would not be decided until final hearing.</p>

On bill, answer, replication and proofs. The Public Service Corporation is one of the complainants in this case, as the lessee of the other complainant, the United Electric Company, under a lease dated July 1st, 1907, for nine hundred and ninety-nine years.

<p>1. Option agreements between the stockholders of three corporations and P., who was acting for H., the president of a fourth company, provided for the formation of a new corporation; that P. might elect to buy all the stock of the three corporations, payable in the preferred stock, at par. of the new corporation; that, after such election he should have a reasonable time in which to make the arrangements for the proposed new company, and the delivery of its preferred stock “in exchange for the stock of the sellersand that the stockholders should transfer to the proposed company direct the properties of their companies, payable in preferred stock at par. The new corporation was organized and a resolution adopted by the corporators, other than P., in their capacity as stockholders, and' by the directors elected by them, other than P., authorizing the issuance to P., in payment of the stock of the other corporations, eighty-two thousand five hundred shares of preferred stock, the amount necessary jrnder the option agreements for the acquisition of the stock of the other companies, and one hundred thousand shares of common stock which was transferred by P. to H.; the only consideration being his anticipated influence in preventing competition between the new company and the company of which he was president.—Held, that this issuance of the common stock could not be held valid, on the theory that P. purchased the stock of the old companies from the stockholders, and then sold it to the new corporation at a value acquired by its being -then held as a whole; the plain construction of the option agreements being that the stockholders transferred their stock direct to the new corporation in exchange for its preferred stock, P. being merely a promoter.</p> <p>2. P.’s failure to vote on the resolutions to purchase his stock, instead of validating the transaction, was a breach of trust, since not only was it a neglect of his duty, as director, towards the stockholders, but the option agreements themselves imposed a trust on him, the performance of which he could not delegate.</p> <p>3. A sale to a corporation by a promoter and director, for $18,250,000, payable in stock of the corporation, of stock in other corporations purchased by him for $8,250,000, was void because a director cannot sell property to his company for a price in excess of its real value, and also because it violated Corporation act (P. L. 1896 p. $93 § 1/8). providing that nothing but money shall be considered as payment of any part of the capital stock, except that property necessary for the corporation’s business may be taken in payment of stock to the amount of the value thereof, and that, in the absence of actual fraud in the transaction, the directors’ judgment as to the property’s value shall be conclusive, since the conscious and intentional overvaluation of the stock in the other corporations was “actual fraud.”</p> <p>4. The gratuitous issuance of stock by a corporation, pursuant to resolutions adopted by the stockholders and directors, was not ratified by resolutions adopted at subsequent stockholders’ meetings ratifying ■ and approving the acts of directors and officers, since such issuance was contrary to the statute, and stockholders cannot ratify their own ultra vires acts, or the ultra vires acts of their directors, if not within the powers of the .corporation.</p> <p>5. Preferred stockholders of a corporation, who became such under an agreement with the promoter which made no reference to common stock, were not estopped to attack the issuance of common stock without consideration by a recital, in the certificate of incorporation, that the capital stock consisted of one hundred thousand shares each of common and preferred stock, and by their delay after knowledge of such recital in taking steps to cancel such common stock, since under Corporation act (P. L. 1896 p. 283 § 18), providing that the preferred slock of a corporation must not exceed two-thirds of its capital stock, the agreement with the promoter impliedly contemplated such common stock, and the preferred stockholders had a right to assume that it had been issued for value.</p> <p>6. Stockholders of a corporation, • by giving proxies to vote at stockholders’ meetings to the directors and trustees, were not charged with knowledge possessed by such directors and trustees, where knowledge of the facts was being withheld from the stockholders by the directors and trustees themselves.</p> <p>. 7. A delay of eleven years by stockholders in bringing an action to cancel stock issued without consideration does not prevent tlio granting of relief where stockholders had no knowledge of the facts during the interval, the stock is still owned by the original owner and his children, and his position has not been changed to his detriment in the meantime, especially where the transaction lias never been fully consummated; the stock still being held by the president of the corporation as trustee for such owner.</p> <p>8. Where the organizers of a corporation, acting as its stockholders and directors, voted to issue preferred and common stock, persons receiving such preferred stock in exchange for the stock of corporations absorbed by the new company were not precluded from attacking the issuance of the common stock as being without consideration, on the ground that the issuance of both kinds of stock having constituted a single transaction, the transaction was either wholly valid or wholly invalid.</p> <p>9. Where the promoter of a corporation, to whom the entire common stock was issued, without consideration transferred a part of it to his agent who, did the actual work of organizing the corporation, not in .payment of his services, but purely as a gift, the transferee had no better title than the promoter.</p> <p>10. As a general rule, where the jurisdiction of courts of equity and law is concurrent, if a recovery at law is barred by delay, no recovery can be had in equity.</p> <p>11. Of the common stock of a corporation one thousand shares were lawfully-issued and subject to assessment, although not paid fo-r. These shares were transferred to the promoter to whom the rest of the common stock was also issued without consideration. 1-Ie subsequently transferred part of the shares to his agent who was president and director of the corporation. Subsequently, dividends having been declared each year for the full, amount to which the preferred stockholders were entitled. two dividends were unanimously declared by the directors on the common stock, and more than six years thereafter suit was brought to cancel the stock and recover the dividends.—SeU, that since, if the profits justified the dividends, the common stockholders would have been entitled to the full amount thereof on the stock lawfully issued, and since in his capacity as stockholder the promoter sustained no trust relationship towards the other stockholders or the corporation, and did not receive the dividends as trustee, but adversely to the corporation, the dividends could not be recovered from the promoter in equity after a recovery was barred at law.</p> <p>12. While the president and director sustained a fiduciary relationship towards the’ corporation, directors having no right to unlawfully withhold dividends, and the dividends having been declared by the unanimous vote of the directors, the dividends paid to the president and director ■ could not be recovered.</p> <p>13. In a suit to cancel stock issued without consideration, where a decree, recognizing the stock as valid but' subject to assessment, would leave the corporation in the control of the holders of such stock, while a decree canceling the stock would be contrary to the mode provided by the Corporation act (P. L. 1896 p. 277) for the retirement of capital stock, the decree will recognize the stock as outstanding so far as the state or creditors are concerned, but will enjoin the corporation from paying dividends thereon, and the holders from voting thereon, except to vote to retire the stock in the mode provided by the Corporation act.</p>

<p>In a suit for divorce by a husband against his wife on the ground of her adultery, where the only debatable question is that of condonation, proofs examined and—Held, that it was established by the weight of the evidence that the husband did have marital intercourse with his wife, the defendant, after he “came into possession of the fact and proof,” or, as it is otherwise said, after he had “reasonable knowledge,” within the rule of law as to condonation.</p>

<p>1. Section 32 of the Mortgage act as revised in 1874 (Comp. Stat. p. 3418). declaring that the recording of the assignment of a mortgage shall be notice “to all persons concerned” that said mortgage so assigned, is in force, and has -not been repealed by section 53 of the Conveyances act of 1898 (Clomp. Stat. p, 1558). declaring that the record “inter alia” of assignments of mortgages shall be notice to all subsequent judgment creditors, purchasers and mortgagees of the execution of the instrument, and consequently as between the mortgagors and the assignees of a mortgage, the mortgagors must bear the. loss occasioned by a mortgagee’s misfeasance iu receiving payment of installments of the principal together with the interest secured to be paid by a mortgage assigned by him and retaining the installments of principal, and giving the assignees the full amount of interest only on the original principal.</p> <p>2. Full effect may be given to both provisions. The record of the assignment may have the effect common to all recorded instruments by virtue of section 53 of the act of 1898; that is, it may be notice “to all subsequent judgment creditors, purchasers and mortgagees.” and it may, without any necessary incongruity, have the wider effect which it had under section 52 of the Mortgage act, that is, it may be notice “to all persons concerned.”</p> <p>3. The words “all persons concerned” have been held to include mortgagors, on the one hand, and assignees on the other.</p>

<p>1. That matter may be part of a will by references thereto in the will, it must be a writing, must bo in existence at the time of the execution of the will, and must be referred to with certainty,- so that a provision of a will giving property to one to dispose of in accordance with "my instructions to her” is insufficient.</p> <p>2. A bequest of property to one. “to dispose of in accordance with my instructions to her” fails; such reference not identifying the instructions.</p>

<p>On exceptions to master’s report in ex parle divorce case adverse to petitioner.</p>

<p>In a husband’s suit for. divorce, evidence held to show defendant’s adultery.</p>

<p>1. A will which, after certain bequests and devises, gives to testator’s widow and daughter the household goods and furnishings of ihis city home and on his farm, to be mutually enjoyed by them while they live together, with provision for its division if they separate, and for all of it going to the survivor, if either dies before a separation, gives to the widow during her widowhood, and till she remarries, ’$20 a week from the income of testator’s business directed to be conducted after his death, and gives the residue of the estate in. trust, the net income thereof, after the daughter becomes of age. to be divided equally between them, with provision that on the death or remarriage of the widow, if the daughter is then of age, the trustees shall convey and deliver all the residue to the daughter, subject to the widow’s dower right and to the bequests to them, is intended to fully provide for the widow, with right of dower in the residue only in case she remarries; so that she is required to elect to take under or against it.</p> <p>2. A -widow makes no election to take under or against her husband’s will, where the executors make, and she receives, payments directed by the will, and also payments as dower in certain parcels of laud; she claiming, and they considering, she was entitled to both under the will.</p>

<p>1. Where a testator gave his wife and unmarried daughters the use of his residence, together with the total income of his estate after deducting taxes, the total income in view of the deduction of taxes meant the “gross income,” which is the entire amount that the use of the principal yields, as contradistinguished from “net income,” which means what 'is left of gross income after all expenses on behalf of upkeep are ■deducted.</p> <p>2. Where a testator bequeathed unto his wife for life the total income ■of his estate after deducting taxes, special assessments for sewer improvements equaling about five years’ income are not to he deducted as taxes; the word “taxes” ordinarily meaning the annual amounts levied upon im’sons or property for governmental purposes, and not special assessments for benefits of public improvements.-</p> <p>3. Where a testator bequeathed the income of his estate to his wife and unmarried daughters during the life of the widow, a daughter single at the time of the execution of the will, but covert at the time of the death of the testator, is not entitled to share in the income; the will speaking from the testator’s death.</p> <p>4. Where a testator devised the total income of his estate unto his wife and unmarried daughters during the life of the widow, and only one daughter was unmarried at the time of the testator’s death, the income must be equally divided.</p>

<p>Final hearing on pleadings ánd proofs in open court.</p>

<p>1. Act of July 5th, 1900 (P. L. 1906 p. 715; 3 Comp. Stat. 1910 p. 3206 § 125 et seq.)', section 1, providing that no person shall be confined as insane, except upon an application with the attached certificate of two physicians, under oath, setting forth the insanity of the person, and, in section 2, that no person shall be held in confinement as insane for more than fifteen days, unless the applicant shall cause the matter to be presented to a justice of the supreme court, is intended as a protection of the public insané asylums, and to prevent their being burdened with the ■care o£ sane persons, and is not intended to provide fqr the apprehension ■and confinement of persons alleged to be insano; and the confinement, on two successive applications, made under this statute, and not by virtue ■of an order before some legal tribunal, of a person not dangerously in■sane, was unauthorized.</p> <p>2. To construe such statute so as to authorize such confinement merely ■on the applications, without some form of legal proceeding, would render it violative of Const. TJ. S., Amend. 14, providing that no state shall pass ■any law which shall deprive any person of liberty without due process ■of law.</p> <p>3. Where, in habeas corpus proceedings, the judge determined that the party alleged to he insane should be released, so far as anything set up by the return showed, the judge wag not required, by the Rabeas Corpus act (2 Comp. Stat. 1910 p. 26J/.6), section 31a, relating to inquiry into the sanity of persons confined in hospitals for the insane, to proceed with a useless inquiry into his sanity.'</p> <p>4. Habeas Corpus act (2 Comp. Btat. 1910 p. 261/6), section 31a, relating to inquiry into the insanity of persons confined in hospitals for the insane, applies only to cases where there has been a commitment founded, or purporting to be founded, upon a finding of insanity.</p>

<p>3. It is a thoroughly settled principle that where one’s rights by ibis-concurrence have been actually submitted to litigation, even though be-be not the nominal • party, he may not relitigate those rights in some-cause in, which he is the nominal party, £or the reason that since he was an actual party litigating or participating in the previous adjudication he will not be permitted by a subterfuge to get away from that which was decided there and relitigate it.</p> <p>2. Antecedent litigation in a previous suit between the parties hereto reviewed, and after examination of pleadings and proofs in this suit— if eld, that the complainant’s bill should be dismissed, either (1) be-, cause in so far as she now claims as administratrix that the deed in •controversy in both suits is a mortgage, she has failed to prove it in this ■suit, and she must fail for that reason; or else (2) because by appealing to the judgment and proceedings in the other cause she concedes that they are relevant to this suit, and as such, they are res adjudicataj and if res adjudicada, of course the entire matter comprised in that judgment ■is settled as between the parties thereto and hereto.</p>

<p>Hearing on return of order to show cause.</p> <p>The bill avers that complainants and defendant own adjoining tracts of land; that defendant has made claim to a portion of the land owned by complainants and has instituted in the supreme court an action of ejectment against complainants for the recovery of the land so claimed by him; that since-instituting the action of ejectment -defendant has commenced the erection of a building which extends over the boundary line and about twelve inches on the land owned by complainants and to which defendant claims title. The bill seeks an injunction to restrain defendant from further trespassing upon or occupying the land of complainants until the title to the property be determined in the pending action at law.</p> <p>At the return of an order to show cause for a preliminary injunction defendant has filed affidavits setting forth the title of defendant to the land which the partially constructed building occupies.</p>

<p>1. The irregularity of filing two pleas to the same part of a bill without leave of court, not being objected to, may be disregarded on hearing of their sufficiency.</p> <p>2. Pleas in bar to a bill, basing complainant’s’rights solely on fraud, to set aside a release and for discovery, are insufficient as raising immaterial issues, they not denying the fraud, but, in terms, being filed only to the part of the bill which does not charge fraud, and not denying the bill’s allegation of recent discovery of the fraud or statement of reason for failure to earlier discover it; the general denial of fraud in the answer not being available in support of the pleas on a hearing of their sufficiency.</p> <p>3. When a bill sets up a release which would be operative as a legal bar to the relief or discovery sought, and seeks to set aside or avoid the effect of such a release by averments of fraud in its procurement or other matters in avoidance of the bar, a plea which seeks to sustain the,release must affirmatively set forth such release so referred to in the bill and also deny the truth of that part of the bill which would, if true, be operative to avoid the legal bar. Such pleas are commonly classed as anomalous pleas, and must, as a rule, where fraud-is charged and discovery is sought, be accompanied by an answer in their support specifically answering such averments of the bill as impute fraud and making such discovery as the bill may require. Such an answer forms no part of the defence, but is a discovery of that evidence which the complainant has a right to require, as complainant is privileged to use such answer as evidence at the argument of the sufficiency of the plea and also at the hearing to determine the truth of the plea.</p>

<p>Final hearing on pleadings .and proofs.</p>

<p>1. Where a replication is filed without objecting to the answer, it will he assumed that defendant answered fully all of the allegations of the bill in accordance with the course and practice of equity.</p> <p>2. A suit by stockholders on their own behalf and on behalf of all other stockholders similarly situated on a cause of action in favor • of the corporation is a suit on behalf oof the corporation, and a decree adjudicates the rights of the corporation, and, after the institution of the suit, no other stockholder may prosecute a similar suit in his own-name for the same cause of action.</p> <p>, 3. Where defendant fully answered the bill and claimed the benefit of the facts as if demurred to, the demurrer, so far as it relies on facts stated in the bill which have been answered, must be considered as overruled by the answer, and the questions of law raised by it must be .determined at the final hearing on the facts disclosed by the evidence in support of the answer.</p> <p>4. Where the disqualification of a stockholder, suing on his own behalf and on behalf of all other stockholders similarly situated on a cause of action in favor of the corporation, appears on the face of the record, the question may be raised by demurrer, but, where it does not so appear, it can only-be raised by answer or by a proper amendment to an answer already filed,</p> <p>5. Stockholders brought a suit, on their own behalf and on behalf of others similarly situated, on a cause of action in favor of the corporation. Defendant answered the bill fully and claimed the benefit of the facts as if demurred to. Subsequently other stockholders, claiming to be similarly situated with complainants, were admitted as parties complainant, and defendant demurred to the bill as prosecuted by such other stockholders.—Held, that the answer overruled the demurrer and it must be suppressed for irregularity.</p> <p>G. A defendant in an action by stockholders, suing on a cause of action in favor of the corporation, may question the standing of other stockholders admitted as complainants after the making of the issues between the original parties, and the omission in the order admitting such other stockholders to give defendant such right does not prevent his questioning their qualifications by .way of amendment to the answer, but the amendment must be strictly confined to the qualifications of such other stockholders.</p>

<p>A defendant in a suit for specific performance of a contract for the sale of land, who has previously brought an unsuccessful suit to cancel the contract on the ground that it was invalid for fraud, and because executed on Sunday, is estopped by the decree holding the contract valid from defending the suit for specific-performance on the ground that the contract was invalid on other grounds than those specified in the first suit.</p>

<p>1. In a wife’s suit for maintenance, the court cannot, after the parties have become reconciled and resumed cohabitation, order the husband to pay a counsel fee to the wife’s attorney on the theory that the attorney’s services were necessaries, since the husband’s liability is only for such necessaries as are required to maintain her as his wife, and not such as to provide for her future condition as a single woman.</p> <p>2: Where, while a bill for maintenance was pending, the husband and wife were reconciled and resumed cohabitation, the cause of action was thereby abrogated, although the bill was not formally dismissed; and neither party could take any action adverse to the other, and hence a motion by the wife’s counsel for counsel fee, necessarily made in her name, was not maintainable.</p>

<p>1. Where the record title to land shows a conveyance by a trustee to a third person, and a reconveyance to the trustee individually, a purchaser- will not be compelled to take such title.</p> <p>2. A purchaser of land has constructive notice of what appears in antecedent title deeds.</p> <p>3. Where a conveyance of land by a trustee to a third person, and a reconveyance to himself individually, were mdde only- eight years before a suit for specific performance, the title will not be held marketable under the rule that after the lapse of a long period of time 'equity will presume that a trustee accounted to the beneficiaries and that all claims against him were barred by delay.</p> <p>4. An outstanding tax title does not render the title to land unmarketable, where no entry under such tax title has been made within twenty years, since it is barred by the common law limitation.</p> <p>5. Specific performance of a contract for the sale of three lots will not be decreed as against the purchaser, where the title to one of the lots is defective.</p>

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

<p>The rule of construction promulgated by this court in Kent v. Armstrong, 6 K. J. Eq. (2 Holst.) 687, and reiterated in Gantine v. Brown, 46 y. J. Law (17 Tr.) 599, is the settled law of this state.</p>

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

<p>Where there is a bequest to one person, and, in ease of his death, to another, the gift over will be construed to take effect only in the event of the death of the first legatee prior to the period of distribution, unless a contrary intention appeal's in the will.</p>

Rill to foreclose á purchase-money mortgage by the assignee of the mortgagee against subsequent owners claiming under the mortgagor. The defence is that the mortgagee covenanted with the mortgagor to fill in the land and failed to do so. The vice-chancellor sustained this defence. The land was conveyed by the Carteret Realty Company to Cyrus D. Reid by deed dated May 5th, 1905.

Bill for an injunction. The American Combustion Company owned certain patent rights and licensed the defendant Lucas to, manufacture the patented devices. Lucas assigned to the defendant the Anthony Company, a Hew York corporation.

The Camden orphans court admitted the will to probate for reasons stated by Judge Jolino, as follows: “Having determined to admit the above-named paper to pro- . bate it seems fitting that I should shortly make known my reasons for so doing. “On the lltli day of May, 1910, Elizabeth L. Shaw filed with the surrogate a caveat against admitting to probate any paper ■purporting to lie the last will and testament of Thomas W. Yeazey, deceased.

<p>Neither the prerogative court, nor any of the surrogates, of this state have general jurisdiction to admit to probate the last will and testament of a non-resident having a domicile at the date of his death in another state, although decedent leave property in this state, except as ancillary to a probate by the courts of the locality of such domicile.</p>

The fact? necessary for the consideration and determination of this appeal are, that John Smitli died leaving a last will in which he appointed his wife, Sarah Smitli, and his niece Rita B. Smith to be the executrices thereof, who probated the will July 26th, ■1905, and were duly appointed to the offices to which they were therein nominated; that September 5th, 1907, a paper purporting to cite the executrices to account, signed by one of the judges of the orphans court, was…

The hill of complaint in this cause prajrs the construction of the last will and testament of Peter H. Ballantine, deceased. He died leaving a widow and four children, three daughters and a son. The widow and testator’s son, George, are now deceased. The latter left no descendants. Of the three daughters, two have children living, and whatever interest George had in the estate under the will was sold bi’ his trustee in bankruptcy and purchased by two of his sisters.

0. This bill is filed by the heirs-at-law of the ,Iate Mrs. Sarah Wain Hendrickson, of Walnford, in the county of Monmouth. Mrs. Hendrickson died March 15th, 1907, intestate, aged ninety-one years. She was a childless widow and left certain nephews and nieces as her heirs-at-law.

C. “The bill is filed to restrain the mayor of the city of Trenton from revoking- the license of car No. 7 of the New Jersey and Pennsylvania Traction Company, and from stopping the operation of that car upon the company’s line of railway within the limits of the city of Trenton.

<p>1. The legal relation of a tax collector toward the township which he-serves, in respect to tax moneys collected by him for its use, is not of such a fiduciary character as to be the subject of equity jurisdiction, but is rather that of a debtor toward his creditor, and a court of equity will not entertain jurisdiction of a suit brought by the township against the collector for an accounting by him, and the collection of tax moneys unlawfully appropriated or wasted by him, for the reason that adequate-remedies against him to enforce such accounting and collection are available at law.</p> <p>2. Discovery alone will not sustain a bill for an accounting.</p> <p>3. The discovery prayed for by the bill of complaint is not such as will give jurisdiction to a court of equity; it relates, solely, to matters of defence which the complainant anticipates, the defendant will set up as to the disbursements by him of tax moneys shown by the bill to have been received by him, and is not matter sought for in aid of the facts-necessary to establish complainant’s case.</p> <p>4. The trusts which equity administers and enforces are, principally, private trusts arising from contracts express or constructive, exhibited generally in writings, or verbal only, except where prohibited by statute. A public office does not rest upon contract, hut on duty, and the appropriate forum .for the enforcement of official duties is primarily a court of law—by mandamus if the duty be clear and the amount involved is not fairly disputable, or by action at law upon the common counts if the-amount claimed he not certain or fixed.</p> <p>5. The township records show how much money came originally into its-officer’s hands, and while the moneys he may have illegally disbursed may be unknown, yet he does not cease to owe them to the municipality. He-is its debtor to that extent, and the proper remedies against him fortlieir recovery are those which the courts of law afford. The effect of holding the relation of the defendant to the township to be that of a trustee and cognizable in equity is to deprive him of the right of a ■trial by jury and the protection of the statute of limitations.</p>

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

He claims to have the legal title and to be in possession of a lot of land in Montclair, through which, forty years ago, the predecessor of the defendant, company constructed a tunnel. The possession which he proves is possession of the surface.

Jones, to the late Ephriam P. Emson, November 29tb, 1894, and contains this recital, “said $600 is part payment as purchase-money.” The mortgagee •died in June, 1896. Ho interest was paid on the mortgage to him in his lifetime,,and none has been paid to his executrix since his death.

No. 78. Appeal of Nate Cabaniss from decree of prerogative court. No. 79. Appeal of Mary J. Winfield and others from same decree. These are two appeals from a decree of the prerogative court advised by Vice-Chancellor Walker, affirming a decree of the Union county orphans court, admitting to probate the last will and testament of George P. Johnson, deceased.

Moore, as follows: “This agreement made this fourteenth day of February, A. D. 1901, between Alonzo Cotton of Ocean City, County of Cape May state of New Jersey, of the first part, and Gainer P. Moore, of the same City, County and State, of the second part, is as follows, to wit: That we, the parties of the first part and second part, owning properties adjoining each other on the east side of Asbury Avenue below 8th Street, being lots Nos. 438 and 440 enter into a mutual…

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

Corby Coal Company by assignment from one Girvan, and a judgment creditor of Girvan, who claims title to the stock by sale under execution. Four hundred and thirty shares of this stock were transferred by Girvan to Elostroy on March 21st, 1911, but the assignee did not give notice and did not request a transfer on the company’s books until July 6th, 1911.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported ante p. 66.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 79 N. J. Bq. (9 Buck.) 113.</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 Yice-Chancellor AYalker, whose opinion is reported in 79 N. J. Eq. (9 Buch.) 519.</p>

<p>Oil appeal from a decree of the court of chancery advised Yice-Cliancellor Garrison,.whose opinion is reported ante p. 395.</p>

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Learning, whose opinion.is reported in 77 N. J* Eq. (7 Buck.) b&0.</p>

This is an appeal from-a decree of the prerogative court, affirming a decree of the-Mercer county orphans court admitting to probate the last will and testament of Spencer W. Buclanan, deceased. Held: as it was unsteady. Pen and ink were then called for, and Mr. Buckman, who was sitting in the chair by the desk, raised partially and his chair was moved over to the desk; a pen was placed in his hand and he asked me to start him a good ways over on the paper, which I did.

<p>On appeal from the prerogative court. From a decree of the prerogative court, affirming a decree of the orphans court, sustaining exceptions to the final accounting of Ida E. Wagner, executrix, she appeals.</p>