Volume 81 — New Jersey Equity Reports

<p>On application for confirmation of' sale.</p>

<p>On rule to show cause why a master’s commission should not be revoked for unlawful execution of'his office.</p>

<p>1. It is an inflexible rule in this state that a divorce will not be granted upon the uncorroborated testimony of a party to the suit; and this applies not only to the cause for divorce but to every necessary element in the proofs.</p> <p>2. Under the above rule, petitioner’s testimony that a certain letter of the defendant to her solicitor was written by him, is insufficient to establish the letter as an element in the proofs, unless the fact that the letter is in the handwriting of the defendant be corroborated.</p>

<p>Upon an application for temporary alimony in a suit for alimony and maintenance, where .the complainant’s affidavits as to the circumstances of the separation are flatly contradicted by the defendant, hers present a prima facie case entitling her to a trial of the question whether the circumstances of the separation were such as to make the defendant’s present offer pending suit, of rooms to live in with him, no defence to the suit, and in the meantime his legal obligation to support her continues, and he should contribute thereto.</p>

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

<p>On a bill- for au accounting charging that the defendants took advantage of fhe mental weakness of a great uncle, who was living with them, to obtain considerable sums of money (either the proceeds of real estate or other money) for which they are bound to account, evidence examined and held, insufficient to establish either fraud or incompetency, no fraud being shown, at farthest, a money demand, recoverable at law, the bill should be dismissed.</p>

<p>1. An award fixing the damages to a landowner during a stated time from pollution of a stream by a city is not an adjudication of the amount of damages suffered subsequently.</p> <p>2. In an action for damages to suburban real property caused by the pollution of a stream, the damages must be assessed on the value of farming property, even though complainants’ experts testified as to its problematic value for city purposes.</p> <p>3. In a suit for damages to real property caused by the pollution of a stream, where a depreciation of $800 in the sale price was admitted, but the defendant undertook that at the end of five years such pollution would be removed, the measure of damages for that depreciation is not the interest on the difference in price calculated on the assumption that the city’s undertaking- was improbable, but the interest on the difference between the present price calculated as if the pollution would be removed at the end of several years, and the price as if there were none.</p> <p>4. In a suit-for damages to real property caused by the pollution of a stream through the introduction of sewage, the owners are entitled to' adequate compensation, and so, where the bed and banks of the stream have been permanently polluted, they are entitled to damages therefor, even though the emptying of the sewage has been stopped.</p> <p>5. Where a right depends upon the happening in future of some contingent event, the court will not pass upon it until the contingency occurs; hence the amount of damages to which landowners may be entitled for the pollution of a stream at the end of a given period will not be computed, where defendant claims that after that time it will no longer pollute the stream, and it does not appear in what condition the stream will bo left.</p>

<p>1. A bill against a defendant as trustee, for an accounting for losses occasioned by his continuance of a decedent’s investment, charging that the defendant continued the same “negligently and not in the exercise of good faith and reasonable discretion, and that great loss has been occasioned” to the complainant “by reason of such negligent continuance of said investment,” will not be stricken out under the two hundred and thirteenth rule, where the notice of the motion states as its sole ground that the bill “does not make or state a case entitling the complainant to a decree, and that the defendant is not bound to answer the same.”</p> <p>2. Such a ground of objection as that specified in the notice relates not to the substance of the charge which the complainant makes, but to the form in which that charge is made, and the character of the objection is not even indicated in the notice.</p>

<p>On bill to foreclose a mortgage, answer and proofs taken in open court.</p>

Bill by legatee for an accounting of executors and trustees, and the recovery for the estate of moneys paid by executors to defendant Virginia M. Woolsey, the establishment in favor of complainant of'an “executory devise” of property under the will, &c.; and cross-bill by executors asking for instructions in regard to the payment of moneys in their hands.

<p>On bill, answers, replication and proofs taken in open court, and depositions taken in France.</p>

<p>1. Under the “Act to compel the determination of claims to real estate, and to quiet title to the same” U Oomp. Stat. 1910 p. S\399), a court of equity, if title is shown to be in a defendant, has jurisdiction to issue a writ of assistance to put him in possession; but he must plead, and the decree must show, his right to “immediate possession” as well as title.</p> <p>2. In a statutory suit to quiet title, decree was rendered that defendant had title absolute, and that complainant had no interest; hut the right to possession was not determined. Subsequently the defendant brought ejectment against its adversary, to which the statutory plea of not guilty was filed; whereupon there was a motion for judgment, on the ground that the plea was sham. This motion was denied, after which defendant moved for a writ of assistance in chancery.' — Ilelcl, that, considering the scope of the decree in chancery and the ruling on the motion- for judgment at law, the question of defendant’s right to possession was not so clear as to warrant disposing of it on motion.</p>

<p>On final'bearing on bill, answer and proofs taken in open court.</p>

<p>1. A devise of an estate, generally, with a power of disposition absolutely and without limitation, imports such dominion over the property that an estate in fee is created, and any devise over is void</p> <p>2. Under a will giving one-half of the residue of testatrix’s estate to a daughter for life, with the right to use and dispose of so much thereof,, in addition to the income, as she might deem necessary for her comfortable support, and upon her death such share or so much as then remained to another daughter, the first taker had a life estate with the right to use what might be deemed necessary for her comfortable support; such construction applying as well to personalty as to realty.</p>

<p>Heard on pleadings and proofs.</p>

<p>After an adjudication of bankruptcy, all the rights, liens and claims alleged against the property or the bankrupt must be determined by the bankruptcy court; and as soon as a proper custodian is designated by that court, and an application is made to the court of chancery to have the assets in receivership or in custodia legis turned over to that court, the receiver should be ordered to turn over all that he has received, less his compensation, including- any expenditures actually ■ made or incurred to that end.</p>

<p>A bill by complainants as trustees under a void trust contained in a will, which bill sets forth the provisions of such trust, the acts done by the complainants, in the performance thereof, whereby they realized certain moneys, and which bill seeks a settlement in this court of such a nature that proper allowances may be made to the complainants for their services and expenditures, and asks that the funds then remaining in their hands may be distributed by decree of this court amongst the. persons entitled thereto, and that an injunction be issued restraining the testator’s heirs-at-law from disturbing the grantees of the complainants by actions of ejectment or otherwise, exhibits no ground of equitable jurisdiction, and will be dismissed for want of equity, upon motion.</p>

When the husband did not join in a mortgage of the separate estate of the wife, it was not valid as a mortgage or a specific lien, but was effective to show that the debt was contracted on the credit of the married woman’s separate estate, and equity will declare and enforce a lien against it.

On bill for accounting. Einal hearing on bill, answers, replications and proofs. in this suit complainants seek an accounting as to a certain bequest of $6,000 made by the will of Samuel Ross to certain trustees, and also seek to hare the bequest declared a lien on the real estate of which the said testator died seized.

<p>On motion for preliminar}' injunction and receiver.</p>

<p>The “construction of a highway,” within' the act of April 21st, 1911 (P. L. 1911 p. 888 § 21), providing that no highway shall be constructed across railway tracks at grade without first obtaining permission therefor from the board of public utility commissioners, contemplates such grading, curbing, flagging, planking, or other physical alteration or addition as may be necessary to prepare it for use, and the highway is not constructed by simply laying it out on paper and filing a map, since “construction” implies the performance of work; the fitting of an object for use or occupation in the usual way, and for some distinct purpose; to put together the constituent parts; to build; to fabricate; to form and to make — and hence that section applies to a highway crossing laid out by ordinance, but not physically constructed, prior to its enactment.</p>

<p>1. A judicial sale fairly conducted vests in the purchaser an equitable title, which the court must recognize and protect. He becomes practically a party to the suit, submitting himself to the jurisdiction of the court in all matters connected with the sale, and may be compelled to complete the purchase, and may himself compel the court’s officer to convey the premises to him upon -his compliance with the conditions of sale; and the sale may be set aside by a proceeding in the original cause without the filing of a new bill.</p> <p>2. While a purchaser at a judicial sale may be deprived of his rights thereunder by proof of what would amount to a fraud, a sale made without irregularity or fraud will not be set aside for mere inadequacy of price, unless the discrepancy between the true value and the amount brought at the sale amounts to a fraud on the parties in interest, and will not be opened on the mere representation that more money may be obtained for the property.</p> <p>3. Objectors to the confirmation of a fairly conducted judicial sale have the burden of showing inadequacy of price or some fraud on the part of the purchaser.</p> <p>4. Evidence, on motion to set aside a master’s sale of five hundred acres of rough mountain woodland, valuable, if at all, from the presence of. ores, for $42,750, held not sufficient to show inadequacy of price.</p> <p>5. Where the judge, in, open court, asked the parties for suggestions as to the name of a master, and made his own selection without objection by any party, the right to object thereto was waived.</p> <p>6. The objection that a master appointed to make a judicial sale was nominated by complainant’s counsel cannot be urged against the purchaser.</p>

<p>Where parents live separately, either parent has the right, in a proper case, to see a legitimate child in the custody of the other parent, and the same right exists in case of a bastard child living with its mother, when the father contributes to its support, in' absence of a showing by the mother that such right is detrimental to the child’s best interests; the question of access being considered from the viewpoint of the child’s best interests.</p>

On motion, for directions -to tire receiver. This is an administration suit, its purpose being to wind up the affairs of the American Waterworks Company as an insolvent corporation. This company was incorporated on March 31st, 1891; on April 9th, 1892, the original bill was' filed in this cause alleging' the insolvency of the company and praying for the appointment of a receiver.

<p>1. Evidence in relation to proof of the proper demand upon the contractor, and its refusal to pay the claimants under the stop notice, examined, and held insufficient.</p> <p>2. It is the settled law that a person to be in a position to impound money in the hands of the owner for his benefit by notice under the third section of the Mechanics’ Lien law must be a creditor of the contractor for work done' on or materials furnished for the building; and that his debt must be due, and that he must have demanded payment of the contractor of a sum which the contractor is obliged to pay at once, i. e., the exact sum due, or less.</p> <p>3. Where the contracts of certain subcontractors provide that such subcontractors shall be paid monthly on requisitions eighty per cent, of the value of the work done, and that the remaining twenty per cent, shall be withheld by the contractor until either the completion of the building or the completion of the work contracted for, and it appearing that all the demands that were made by these subcontractor claimants included the deferred percentages, all the notices served included the same percentages (these percentages not having come due until long after the demands were made and the notices served), such claimants cannot succeed upon their stop notices.</p> <p>4. Tlje contention that when the contractor failed, all the subcontracts must he considered as abandoned and that the subcontractors may then have an action at law for the cost of the labor and materials furnished by them respectively for the building, that the question of the amount of such claim can -be tried in this court, and that this court should then award to the claimant such sum of money as might be found to be owing to him upon that basis is untenable, because the damages in such ease will be unliquidated in their nature and would have to be assessed by a jury.</p> <p>5. Section 3 of the Mechanics’ Lien law contemplates a dealing with fixed sums and not with unliquidated amounts, there being no machinery thereby provided by which the owner can be certified as to the amount of unliquidated damages, nor any method provided by which he may be satisfied of the correctness of the demand for damages nor can the demand be made accurate.</p> <p>6. The fact that when the contractor failed these subcontractor claimants finished their respective contracts for the new contractor and received from him the remainder of their contract moneys, so that without the consent of the contractor they split up their contracts and causes of action, excludes them from coming within the letter or spirit of the lien law.</p> <p>7. Notwithstanding the contractor’s failure to complete the building in accordance with his contract, he still has an interest in the .fund in court for the reason that some portion of it may be paid to him, and his rights must therefore be kept in mind.</p>

<p>The court of chancery should not interfere in the settlement of accounts of executors and administrators if any progress has been made in the cause in the orphans court, unless some good cause is shown.</p>

<p>Wherever letters or papers are evidential in a cause, and are in the possession of either party, and are clearly relevant, the court of equity has the inherent power to order the production of such papers for inspection by the other party.</p>

<p>1. When a general rule is provided by the legislature to cover an entire subject-matter all earlier and different legislative rules touching such matter are to be discarded in favor of such later rule.</p> <p>2. The amendment of the Municipal Lien law in 1909 (P. L. 1909 p. 260) renders the remedy provided by the third section of the Mechanics’ Lien act inapplicable to the enforcement of a lien under the Municipal Lien law.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion ig-reported in 80 N. J. Eq. (10 Buck.) 1. .</p>

'The defendant agreed in writing to convey to complainant a lot in Jersey City, particularly described as “being part of Plot 19 B in Block '1827, situated on the northerly side of Duncan avenue easterly from West Side avenue, being twenty-five feet in width in front and rear and one hundred and twenty-five feet in depth on both sides, together with the four-story brick apartment dwelling situated thereon.” The building was then in course of construction and nearly completed.

<p>1. It would be inequitable to award the whole of a stock dividend upon stock held for a trust fund to the life tenants, for two reasons — -first, because stock dividends are not dividends set aside as earnings by the corporation ; second, because to permit the new stock to go to the life tenant would lessen the proportionate interest of the estate in the corporation, a result that cannot have been contemplated by the testator.</p> <p>2. Ashlmrst v. Potter, 29 N. J. Bq. {2 Stew.) 625, 635, distinguished.</p>

<p>1. Complainant purchased an interior lot fronting on Wildwood avenue by deed containing a covenant that the building to be erected thereon should “be so located that the front line thereof shall not be nearer than sixty feet to the street line measured at right angles thereto,” and his grantor covenanted that he would “not convey any of the adjoining lots except by deed containing the same restrictions as above recited.” Defendant, with actual notice of such covenants, purchased from the same grantor two lots at the corner of Wildwood avenue and Park street, fronting on Park street, and abutting in the rear on complainant’s lot. Complainant knew, and the map, which was a part of the public records affecting the whole tract, showed that defendant’s lots fronted on Park street. — Seld, that the question whether or not the covenant was violated by defendant by the erection of a building nearer than sixty feet to Wildwood avenue is not so clear that a court of equity will aid in its enforcement.</p> <p>2. In cases where the right of a complainant to relief by the enforcement of a restrictive covenant is doubtful, to doubt is to deny.</p>

to restrain the dissolution of the corporate defendant pending an opportunity for the complainant, who was a stockholder, to inspect the books. The defendants Smith and Lowry filed an answer and cross-bill. -A motion was made to strike out the cross-bill on the ground that the relief it sought was not relevant, pertinent or germane to the matters in issue raised by the bill of complaint. The motion was overruled and the application denied.

9'4- The litigation arose under the act.of 1892, relating to liens on moneys, growing due on municipal contracts for public improvements (P. L. p. 869; Comp. Slat. p. 8815), and the controversy brought up by this appeal was between the complainants as claimants under a stop notice, and the respondent claiming under assignment from Maloney, the original contractor, to one Farnon, and- further assignment from Farnon to respondent, Brogan.

<p>Where a husband procures -real estate to be conveyed to his wife, he paying the consideration, a presumption arises that he intended to settle the property on her, and while such presumption may be rebutted, the proof offered to accomplish it must be certain, definite, reliable and convincing, leaving no reasonable doubt of the intention of the parties.</p>

<p>1. In a suit for an accounting against a testamentary trustee for the loss sustained by the complainant and her fellow cestui que trust, a bill alleging that securities which have come to the hands of the defendant trustees from the estate of their testator have steadily depreciated in value from the beginning of the trust until the shrinkage amounts to nine-tenths of that value, makes it a prima facie case of lack of good faith, or a failure to exercise reasonable discretion on the part of the trustees, and such a bill will not be stricken out.</p> <p>2. Such dealing with trust funds calls for an explanation by the trustees of their action in holding on to securities which were steadily, declining until they had shrunk to one-tenth of their value, at the time they became a part of the trust estate, such conduct being inconsistent with the exercise of reasonable care, good faith or reasonable discretion exercised by the ordinary prudent person.</p>

<p>On appeal from an order of the chancellor overruling defendant’s demurrer.</p>

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

The New York, Susquehanna and AVestern Railroad Company made claim to the receiver for $1,673 for demurrage on freight cars containing freight consigned to the receiver during the months of January, February, March, April and May, 1908.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 80 N. J. Eq. (10 Buch.) 1.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in SO' N. J. Eq. (10 Buch.) 355.</p>

<p>On appeal from a decree of the court of chancery advised by •Vice-Chancellor Garrison, whose opinion is reported in SO N. J. Eq. (10 Buch.) 356.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 80 N. J. Eq. (10 Such.) 60.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. 117.</p>

<p>On appeal from a decree of the court of chancery advised by Advisory Master McDermott.</p>

Duffjr, Mr. Lane, Mr. Hartshorne and Mr.' Gilson, 1 see no reason to change my mind, and I will adhere to my previous ruling. It seems to me that in the uncertain event of Mr. Duffy's client being able to recover, it is not equitable of him to ask this, without assuring the court by a proper bond that if he does go on with this suit the creditors will be no worse off than they are now.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 80 N. J. Eq. {10 Buck.) 408.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported mte p. ¡¡If.</p>

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 80 N. J. Eq. (10 Buck.) R7.</p>

<p>Appeal of J. E. Glasby Lumber Company.</p> <p>■ On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported ante p. 11¡£.</p>

<p>Appeal of Browe Company.</p> <p>On appeal from a decree of the .court of chancery advised by Vice-Chancellor Howell, whose opinion is reported ante p. US.</p>

Appeal of Hatlian Bilder, trustee in bankruptcy. On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported ante ¶. 1^8.

<p>On appeal from a decree of the court of chancery advised by ■Vice-Chancellor Emery, whose opinion is reported ante p. 21.</p>

<p>1. In a suit for partition, a plea setting up that it is not true that the deceased ancestor died seized of the premises described in the bill, or that they descended to the complainant and the defendants as the children and heirs-at-law of the deceased, or that the complainants and defendants ai'e seized of the premises as the heirs-at-law of the decedent, is clearly bad, and will be overruled, because it does not say why or wherefore the complainant and other parties are not seized of the premises in question, but simply states that they are not.-</p> <p>2. Matter relied upon in a plea to a bill in equity must be accompanied by such averments as are necessary to support it.</p> <p>3. While there is no such practice as a motion to strike out a plea unless it be sham and frivolons, yet a motion to. strike out an insufficient piea may be considered as if the plea had been set down for argument.</p>

<p>On motion to strike out bill of complaint.</p>

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

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

<p>On application to fix master’s fees.</p>

<p>1. On a bill filed by trustees under a mortgage securing an issue of bonds, defendant bondholders will not be permitted by way of cross-bill to set up and -charge the trustee-complainants with dereliction of duty and betrayal of their trust with respect to condemnation proceedings affecting part of the mortgaged premises whereby they were taken at a greatly depreciated .sum, causing loss of mortgage security for which the trustees are asked to account.</p> <p>2. The defendants’ cause for complaint, i. e., that the trustee-complainants defaulted in the discharge of their duties and consequently were liable in damage to their cestui que trustent (which liability is attempted to be enforced by the cross-bill), is limited to the scope of a foreclosure bill to collect the trust fund.</p> <p>3. The scope of the foreclosure proceedings is restricted to the issues arising between the complainants representing the bondholders on the one hand, and subsequent encumbrancers and the holder of the equity of redemption on the other, relating exclusively to their respective status in the mortgaged lands, and is not comprehensive of a final adjustment and settlement of the trust estate.</p> <p>4. The new facts which it is proper for a defendant to introduce into a pending litigation, by means of a cross-bill, are such, and such only, as it is necessary for the court to have before it in deciding the questions raised in the original suit, to enable it to do full and complete justice to all the parties before it in respect to the cause of action on which the complainant rests his right to aid or relief. If a defendant, in filing a cross-bill, attempts to go beyond this, and to introduce new and distinct matter, not essential to the proper determination of the matter put in litigation by the original bill, although he may show a perfect case against either the complainant, or one or more of his co-defendants, his pleading will not be a cross-bill,„ but an original bill.</p> <p>5. A cross-bill implies a bill brought by a defendant against the complainant in the same suit, touching the matter in question in the original bill. It is brought either to obtain a discovery of facts in aid of the defence to the original bill, or to obtain full and complete relief to all parties as to the matter charged in the original bill.</p> <p>6. A cross-bill should not introduce new and distinct matters not embraced in the original bill, as they cannot be properly examined in that suit, but constitute the subject-matter of air original, independent suit. The cross-bill is auxiliary to the proceeding in the original suit, and a dependency upon it. If its purpose be different from this it is not a cross-bill, though it may have a connection with the same general subject. A cross-bill must be confined to the subject-matter of the original bill. If it introduces new matter not embraced: in the original bill it becomes itself an original bill.</p> <p>7. The defendants’ cause for complaint, i. e., that the trustee-complainants defaulted in the discharge of their duties and consequently were liable in damages to their cestui que trustent (which liability is attempted to be enforced by the cross-bill), is foreign to the limited scope of a foreclosure bill to collect a trust fund.</p>

<p>Od. application fox preliminary injunction and appointment of receiver pándenle lile.</p>

<p>On demurrer to cross-hill.</p>

<p>1. Defendants having- submitted to answer must answer fully, not only as to their knowledge, but also if they have none, then as to their information and belief, if they have any, of each material statement of the bill.</p> <p>2. If they have neither knowledge, information nor belief, they must plead the lack in plain unmistakable words.</p> <p>3. If their knowledge of the things alleged is derived solely from the cross-bill, they must say so, in which event they need not express their belief thereof.</p> <p>4. That the subjects of which a discovery is asked “are matters of public record and easily ascertained,” is not ground for striking out part of an answer for insufficiency. A defendant is not required to put himself to the trouble of gathering- information for the purpose of answering.</p>

<p>1. A claimant of certain' shares of stock in a corporation under two assignments, the first executed by H., as assignor and record holder, to one W., constituting him attorney of H., irrevocable with power to transfer on said books, and “with power of substitution, and the second executed by W. to the, claimant, in identical terms with the first, is entitled to make and is entitled to access to the company’s transfer books for the purpose of making the actual transfer thereon.”</p> <p>2. A by-law of the corporation providing that “shares of capital stock may be transferred by endorsement of the certificate and its surrender to the secretary for cancellation, whereupon a new certificate shall be issued to the transferee by the board of directors,” cannot be so construed as to require an actual transfer on each assignment.</p> <p>3. Under the decisions of this state the holder of a certificate of stock accompanied by an irrevocable, power of attorney, either filled up or in blank, may fill up the letter of attorney, execute the power and thus obtain legal title to the stock, and such power is not limited to the person to whom it was first delivered, 'but enures to each liona fide holder into whose hands the certificate and power may pass.</p> <p>4. The failure or refusal by a secretary to accept the certificate tendered, or act in the matter as required by the by-law, is such a refusal as entitled the transferee to compel a transfer.</p> <p>5. H., as secretary, and also as still the shareholder on the books under the assignments is a proper party defendant in a suit to compel such transfer, as is also the treasurer under section 19 of the General Corporation act, who is required to sign the new certificaté.</p> <p>6. Upon a bill by the transferee against the corporation and its treasurer, and H., as assignor, to compel the company to transfer said shares to complainant on the books of the company and to issue to him a new certificate therefor, the bill 'alleged that such by-law was invalid and prayed that it be declared void, the demurrant as ground of demurrer claimed that under said by-law the board of directors has the right in its discretion to refuse to admit a transfer of shares ‘ as a stockholder.— Held, that section 20 of the General Corporation statute, declaring shares to be personal property and to be made transferable on the books in such manner and under such regulation as the by-laws prescribed, gives to the directors only power to regulate or approve the formalities of transfer of the cei’tificate or evidence of ownership, and not power to restrict the absolute right of transfer.</p> <p>7. In the absence of clear express provisions either in the articles or by-laws lawfully restricting or qualifying this absolute right of property and transfer, the owner has the same right to transfer his shares as to transfer any other property. If, however, this by-law should be construed as not confined merely to approval of the formalities of transfer, but as giving the directors the right to refuse, in their discretion, a transfer by one stockholder to another, then the by-law is illegal.</p> <p>S. The right to equitable relief is based on the fact that the complainant’s title under the assignments is' an equitable title only, as between him and the company, and equitable relief is necessary to acquire the legal title and rights to the shares transferred.</p> <p>9. H., as the assignor, is a proper party defendant to a suit against the company, being interested as the alleged assignor, and is entitled to have the transfer made on the books relieving himself and subjecting the complainant’s obligations to the company as the legal and record holder of the stock.</p>

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

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

On demurrer to amended bill. Tire question now to be decided is the validity of the demurrer to an amended bill, bnt by reason of the possible relevancy of the proceedings on the original bill, the whole ease will be stated. The original bill was filed by the vendor against the purchasers for the specific performance of a written agreement dated May 15th, 1911, for the purchase and sale of lands on Halsey street in the city of Newark.

<p>1. Where a testator by bis will devised as follows: “To my son Peter Merkel or his lawful heirs I hereby give and bequeath all the tracts and parcels of land and premises conveyed to me by George T. Smith and wife, and known as Numbers 38, 40; 42, 44 and 46 Prince street, Nevrark, New Jersey, subject to all and every encumbrance thereon, for his own private use forever, under the express condition and restriction that should my son Peter die without leaving any children or grandchildren or should all his children or grandchildren die without leaving any lawful issue, then and in such case I hereby give and bequeath all the property above bequeathed to my son Peter, to my son John and the children of my daughter Elizabeth M., viz.: one half to my son John and one half to the children of my said daughter Elizabeth M., or their several lawful heirs, for their private use forever,” and at the time of the making of the will and at testator’s death his son had two children living, each having children from after testator’s death, the son has not an absolute title in fee-simple in the devised premises and cannot convey the same free of limitations over.</p> <p>-2. The testator intended to provide throughout for two separate contingencies. The opening clause devised “To my son Peter or his lawful heirs,” &e., the tracts in question. This devise to the heirs of Peter was substitutionary for the primary devise to Peter and took effect to them as a direct devise only in case of Peter’s death in the lifetime of the testator. The subsequent limitations over were intended to apply respectively to the two contingencies of' the original devise, and were in continuation of the general plan of the testator to further provide for the existence of either contingency which occurred to his own death, viz., Peter’s then taking the estate or the “lawful heirs” of Peter then taking the estate.</p> <p>3. Unless it appears that the testator clearly intended such inseparable connection of the two limitations, the court will more probably carry out the testator’s real intention by holding them to be separable.</p>

<p>1. A contract between a railway company and a contractor for the building of a section of a tunnel (under section 34) provided that the latter should pay the former as damages in default of completing the works by the agreed date, “a sum equal to 1/50 of one per cent, of the amount paid or to be paid him for the entire work for each and every day the time consumed on said work and completion may exceed the time herein allowed for that purpose, which said sum, in view of the difficulty of ascertaining the loss which the Company will suffer by reason of delay in the performance of the work hereunder, is hereby agreed upon, fixed and determined by the parties hereto as the liquidated damages that the Company will suffer by reason of said delay and default, and not as penalty, and the Company shall and may deduct and retain the amount of such liquidated damages out of the moneys which may be due or become due to the. contractor under this agreement,” and in case the company should declare the contract at an end, as was done, it further provided (under section 35, subsection 2) that the company may make a new contract for construction with other parties upon such terms as the Company may deem proper; the same to provide among other things that the new contractor shall allow, for so much of construction as has been already completed, a reasonable amount to be prescribed in such new contract, or to be ascertained as in such new contract to be provided; and in such case the contractor shall pay the Company for all damages which the Company shall sustain by reason of such failure, including the excess, if any, of the amount which the Company shall pay the new contractor over the amount it would have had to pay the contractor party hereto for the same work and materials, together with the amount, if any, which shall he due the Company, hy reason of the delay in completion of the construction and completion of the entire work.” After the contractor had done a certain portion of the work, it became insolvent, and the railway company made a new contract with another contractor who completed it at the same rates as the original contractor had contracted for, and as far as appears, no damage in fact resulted from delay in construction, inasmuch as the other sections of the work had not been finished. Upon the railway company’s claiming liquidated damages, calculated according to section 34 — Held, that it is plain that the contract does not provide for liquidated damages in the event that has happened.</p> <p>2. Every line of paragraph 34 indicates that the case there provided for is that of the original contractor who fails to complete within the time agreed upon: The assumption is that such contractor is doing the work, up to the very time of completion, and that it is his delay which is causing the loss. In that event the company is authorized to deduct and retain from the contract price, stipulated to be paid, to him, the liquidated damages, calculated as section 34 provides. Under subsection 2 of section 35, on the other hand, provision is made for the possible loss that may ensue, where the company has been obliged to do the work itself or to employ and pay a second contractor. Here the conditions are different. The first contractor ought to be held for his own defaults but not for the acts of .the company or the possible defaults of the second contractor. He ought not in reason to be held to a greater or lesser liability according as the railroad sees fit to give the second contractor more or less time to finish.</p> <p>3. The damages called for are the damages that are sustained, that is, actually sustained, by reason of the failure. These it is said, may include the excess which the company may pay the new contractor and they may also include the amount, if any, due by reason of delay in completion. Under such a provision, damages arbitrarily ascertained have no place.</p> <p>4. The receiver is not entitled to compensation for the timbers or rings left in the tunnel under a clause of the contract providing that “timber left in the tunnels by order of the engineer will be paid for at the actual cost of the timber,” &c., the same being- included in the sale to the new contractor comprising “the plant, material and supplies used upon of in connection with its (the original contractor’s) works.”</p> <p>5. Upon the receiver’s claim for $7,125 for the removal by the original contractor of nine thousand five hundred cubic yards of earth and loose stone from the entrance to the tunnel (being at the rate of seventy-five cents per cubic yard), which in its last estimate of work done by the original contractor or its receiver, the railroad company retained out of the eighty cents per cubic yard payable for the completed job, handing over to the new contractor the whole amount retained — Hold, that the rights of the parties are determined by subsection 2 of paragraph 35. Under it the company had the right to make a new contract for construction, “upon such terms as the Company might deem proper," and to provide that the new contractor should allow for so much of construction as had been completed, “a reasonable amount to be prescribed in such new contract.” Here the original contractor expressly relegated the decision of how much the allowance should be to the judgment and good faith of the railroad and the new contractor.</p> <p>6. The reasonable allowance the new'contractor was to make was for completed construction. This' particular work was incomplete. Besides there is nothing to indicate that the seventy-five cent rate for complete disposal, not of this material alone, but of all undisposed of material, was not on the whole reasonable. It was the very rate stipulated for by the original contractor. As no unfair dealing is pretended, the contracts, as they stand, must decide the matter.</p> <p>7. The original contractor made an assignment to. the Hirst National Bank of Jersey Oity of any and all sums due and to grow due on account of retained percentages by the railroad under the original contract, “together with ail claims for extra work accruing in connection ioiih said work.” And by a supplemental contract the contractor for the sum of forty-nine cents per cubic yard, agreed to furnish all labor and materials necessary to complete, to the satisfaction of the ■ chief engineer of the railroad company,1 the placing of the waste material from the Bergen Hill tunnel on the line of Pennsylvania, New Jersey and New York railroad beyond a distance of one thousand feet from the portal. — Held, that work done under this contract, viz., eleven thousand one hundred and fifty-five cubic yards placed beyond the thousand feet, is “extra work” within the meaning of the above assignment, it appearing that the earth and rock ,-so placed were taken from the.section of the tunnel the original contractor was engaged in excavating under the original contract.</p>

<p>By will the testator gave his wife the income of all his estate until his youngest child should reach twenty-one. and then gave her the income of one-third of it. Subject to her life, estate, he. gave all the residue of his estate to his children and tiheir heirs and then provided as follows : “In the event of my wife remaining unmarried at the time of my youngest child shall arrive at the age of twenty-one years. I give, devise and bequeath to her the use, income and profit of the equal one-third part of all my estate, both real and personal (after deducting the disbursements above mentioned), for and during the period of her natural life and all the rest and residue of my estate, both real and personal. I give, devise and bequeath to my children share and share alike and to their heirs forever. In the event of the death of all my children without lawful issue of either of them surviving them and without any child of such issue surviving them, I give, devise and bequeath all my estate, both real and personal, whatever and wherever the same may be (subject to the' right to my wife in the same during her life) to my nephews [naming them) and to my niece [naming her] to be equally divided between them and to their heirs forever.” Tlhe testator left' a widow and two children at his death, a son and a daughter the latter of whom attained the age of twenty-one years and died unmarried. — Seld, that subject to the widow’s life interest, the son is seized of an estate in fee-simple to certain lands whereof the testator died seized subject to the executory devises in favor of certain of the testator’s nephews and niece.</p>

<p>Ex parte suit by trustee under a will for construction and ■ instruction. Heard on bill and depositions.</p>

Suit by husband for divorce on the ground of wife’s willful, continuous and obstinate desertion for two years. Heard on petition, answer and proofs taken in open court.

<p>Equity has jurisdiction oí a suit to recover from the owner moneys alleged to have been “stopped” in his hands by notice under the third section of the Mechanics’ Lien law, but such jurisdiction is not exclusive, and will not be exercised if the recovery at law is full, plain and adequate, unless there are some features of the case which make it more appropriate for a court of equity than for a court of law, and there being none in this case this court will refrain from exercising its jurisdiction, but will leave the complainant to his action, at law.</p>

Final hearing on bill for construction of will. The bill is filed for the construction of a joint will made by two sisters. The will provides that in the event of either dying before the other the survivor shall take for life the entire estate! of the one dying first, with power to dispose of it. It then provides that after the death of the survivor the property not then disposed of shall be disposed of in the manner therein stated. Both testatrices are now deceased.

<p>On bill, &c.,yfor injunction. Hearing at return of order to show cause for preliminary injunction.</p>

<p>On bill, &c., for injunction. Hearing at return of order to show cause.</p>

The bill is filed for the construction of the will of James B. Potter, deceased. By this will testator gave to his executors a specified sum of money in trust.

<p>1. Under the trust which was assumed'by defendant corporation it became its duty to find an advantageous purchaser of the property of its cestui que trust. As that corporation could only act through its board, that duty necessarily belonged to the board and to each member of the board. In finding a purchaser for the trust property a member of the board did no more than perform his plain duty as a director — a duty which he owed alike to the corporation and to the cestui que trust of the corporation which he was representing.</p> <p>2. The right of the corporation to compensation for the services performed by it in effecting the sale as a part of its duty in administering its trust is not questioned; but its right to pay to a member of its board of directors, out of the funds of its cestui que trust, compensation for disclosing a purchaser for the trust property, cannot be sustained.</p> <p>3. The defendant corporation paid to its director, out of the funds of the cestui que trust, a compensation for disclosing a purchaser for the trust property, it being then believed by all the members of the board, except the director to whom the payment was made, that the purchaser of the property was a stranger, whereas it is now ascertained that the purchase was in behalf of the director who received the compensation. — ■ Held, both the director and the corporation are liable to the cestui que trust for the compensation so paid; but for the other items for which the account is to be taken only the director is liable, as the sale of the property w»as made by the corporation in good faith without knowledge of the fact that the director was the purchaser.</p> <p>4. The corporation having received no benefit from the payment, and the director having received the sole benefit, the liability for the return of the money should, in equity, be primarily cast upon the director and secondarily on the corporation.</p>

<p>1. In this state it has been repeatedly and uniformly held that in the absence of fraud, gross injustice, irremediable injury' or other ground of equitable jurisdiction, a court of chancery will not restrain a threatened sale under execution upon a judgment at law against one person of property claimed by another person.</p> <p>2. The principle upon which these decisions are based clearly applies with equal force to a case in which the complainant is the judgment debtor and the ground of the relief sought from this court is that complainant’s sole estate in the property which is threatened to be sold is an estate which cannot be reached by process of law.</p> <p>3. The judgment creditor is entitled to assert the existence of a legal estate in his judgment debtor and- to have his claim of legal title tried by a legal tribunal.</p>

<p>Where the defendant was employed by the complainant corporation as its manager, and also as the manager of another corporation (whose stock was all owned by the complainant) for the period of one year upon the terms that he should be repaid for expenses incurred in behalf of the two companies, but should serve without salary or wages for work done and services rendered by him to the two companies — Held, in a suit for an accounting, that the defendant is entitled to the money appropriated to himself in respect of such expenses incurred on behalf of the two corporations, but not for the amount claimed from them in respect of salary.</p>

<p>1. Where a mortgagee held a mortgage on real estate which was, admittedly, a lien prior to that of the two judgments held by the defendants, and subsequently took a new mortgage on the same land from the same mortgagor for the same debt, the judgments in question having in the meantime been entered against the mortgagor, such mortgagee is entitled to be restored to its original position, it appearing that no injury or prejudice had resulted to the judgment creditors from the cancellation, and the mortgagee’s negligence in failing to ascertain the existence of the intermediate judgments alone not being suflicient to deny such equitable relief.</p> <p>2. The mortgagee’s mistake in such case was not a mistake of law, but was a mistake of fact, in that it was not known that the judgments had intervened.</p>

<p>A covenant in copartnership articles of agreement between physicians Hor the general practice of medicine at Atlantic City, whereby the covenantor agrees-that if he “shall fail faithfully to perform the covenants of this agreement” the covenantee may terminate the partnership, and in such event, the covenantor will not pursue his profession in said city during three years from the termination of the partnership, will not be enforced by injunction, it appearing that the moving and fundamental cause for such relief is the covenantor’s failure to render his accounts to the bookkeeper of the firm in the manner specified in the agreement, and that this fault was unaccompanied by pecuniary loss or improper motives and arose chiefly by reason of absorbing devotion to another and more important department of the covenantor’s partnership duties, and that the granting of such relief is oppressive and contrary to the real justice of the case.</p>

<p>The amended bill herein has been' filed by certain stockholders of the St. Leonard’s Land Company'for the benefit of that corporation. The relief sought is against five of . its seven directors. The corporation is joined as a defendant because the board has refused to authorize the suit.</p> <p>The controversy arises through loans of money made to the corporation by the five defendant members of its board of directors. The directors who made the loans each received from .the company to secure the loans certain collaterals, which col-laterals have since been applied in satisfaction of the loans. The amended bill seeks to enforce the restoration of these col-laterals and an accounting.</p> <p>In May, 1898, the corporation was in pressing need of money. At that time certain capital stock of the corporation (which stock is conceded to have been fully paid) was held by an individual in trust for the corporation for purposes of sale by the corporation for its use. May 19th, 1898, a resolution of the board was adopted authorizing the president and treasurer to borrow for the corporation $10,000 and to cause double that amount of the trust stock above referred to to be pledged as security for the loan. The resolution is vaguely worded, but its meaning has been made reasonably clear. Railing to find any person outside the board willing to malee the loan, five members of the board — defendants herein — each loaned the corporation $1,500 and received therefor collateral notes of the corporation pledging thirty shares (par $3,000) • of the trust stock already referred to. The other two members of the board refused to malee similar loans. The money so borrowed was used to pay debts of the corporation. The minutes of the board disclose no resolution specifically authorizing these loans and pledges, but the testimony indicates that such a resolution may have been adopted at about the time the loans were made. The minutes are, iu fact, so inadequately kept that they afford little light touching the transactions of the board. The notes were severally dated June 20th, 1898. To one of the directors who made a loan no note appears to have been given, but stock was issued to him to secure his loan. Under date of October 15th, 1898, shortly before the notes matured, the minutes of the board disclose the following resolution as having been adopted :</p> <p>“Resolved that each director borrow the sum of fifteen hundred dollars for the period of one year, and to receive fifty per cent, excess of the company’s stock as collateral to said loan, to meet the obligation of Alvin P. Risley, contractor. The company to have the privilege of redeeming said stock in one year from date with interest at six per cent, otherwise to revert to the borrower.”</p> <p>This minute, like many others found in the minute book, is almost unintelligible, standing alone. It appears to authorize an original loan for one year, whereas the loan had been already made by five members of the board and the remaining two members, who were not present at that meeting, had positively refused to loan. The amount of collateral referred to in the resolution is fifty per cent, excess, whereas the amount which had been already given was one hundred per cent, excess. The resolution is also silent touching the amount to be credited to the company for the collateral in the event of the company failing to redeem it. The testimony of the directors who made the loans, and who were all present at this meeting, is that the resolution which was adopted was to enable the company to have one year in which to redeem the stock which had already been pledged, failing in which the stock should then become the absolute property of the pledgees and the indebtedness of the company became thereby discharged. The testimony of one of the directors who made no loan is to the effect that he never knew of any action of the board limiting the period of redemption until shortly before the bill was filed, and that he had, from time to time, urged at board meetings the redemption of the stock. The earliest date at which he could positively- state he so urged at a board meeting was in the year 1902. Uo further action touching these loans appears to have been taken by the board before February, 1904, and a dispute exists touching the action which it is claimed was taken by the board at that time. It is claimed that at that timé a redemp-. tion of the stock of the company was urged by the tujo “dissenting” members of the board and resisted by the five members who had made the loans, and that one of 'the- dissenting members then offered a compromise resolution to the effect that one-half of the pledged stock should be surrendered and the remaining portion retained by the pledgees, to the end that the amounts paid by the several pledgees should be the par value of the stock by them retained. The testimony touching the compromise resolution is in hopeless conflict. The two dissenting members of the board testify that the resolution passed with one of them voting against it. The other members of the board testify that no such resolution was ever adopted. It is probably impossible to state, with entire certainty, what the truth may be touching this resolution. Its' absence from the minute book is of little or no probative force in view of the way the minutes were kept. Uone of the transactions herein referred to have at any time been brought to the attention of a stockholders’ meeting of the corporation. At a meeting of the board August 17th, 1909, a further demand for the return of the pledged stock was peremptorily refused and permission to permit suit to be brought by the company was also denied. This suit is therefore brought by stockholders in behalf of the corporation to enforce the rights of the corporation.</p>

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

<p>On motion for an injunction and the appointment of a receiver.</p>

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

<p>On April 2d, 1871, John Kutherford and wife granted and conveyed to the Thomas Iron Company, their heirs, successors and assigns forever “the right and privilege of flowing with water all the lands lying on the southwest side of the road leading from the Wawayanda Furnace to Vernon covered by the waters of the Wawayanda Lake [tihe land in dispute] at any height of said waters from lojv to high-water mark, said high-water mark being a straight line cut- into the rock near the southern end of the main dam of the Wawayanda Lake, and above said line is cut the letters H. W., and also the right and privilege of flowing with water from low-water to high-water mark the lands lying on the northeasterly side of the road leading to Vernon as aforesaid, said lands being part of the farm known as the Banta farm with the appurtenances and all the estate, title and interest of the said parties of the first part therein.” Then follows a covenant that the grantors at the time of the delivery of the deed were “the lawful owners of the premises above granted and seized thereof in fee-simple absolute.” There was also a covenant that the grantors would warrant and defend “the above-granted premises” in the quiet and peaceful possession of the grantees and their successors. The instrument contained no habendum clause nor any covenants except those above mentioned, and the controversy between the parties is over the question whether the deed conveyed a fee-simple title or merely a right of flowage. .There was no evidence in the case to show when the lands embraced in the deed in question were flowed with water, or whether the lake was' a natural lake or an artificial one caused by the building and subsequent raising of a dam. — Seld, that the deed instead of conveying a mere right of flowage, conveyed at the date of its execution and delivery a fee-simple .estate in the lands described therein.</p>

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

<p>1. In specific performance suits this court is debarred from granting relief where there is doubt éither concerning the facts or the law.</p> <p>2. Evidence examined and held to create so much doubt about the matter that relief must be denied to the complainant.</p>

<p>1. In that class of cases of unfair competition denominated “passing-oil” cases, the general rule is that it is not nefcessary that the complainant in order to succeed should prove misrepresentation or actual fraud by the defendant, or give any evidence that any single person was deceived. It is enough if, in the opinion of the judge, the symbol or device or get-up used by the defendant is one which so closely resembles the symbol, device or get-up used by the complainant as to be likely to deceive the public. If so, then the conditions required by the rules of law are fulfilled, and the decision of the question is one which must be committed to the eye and the sound judgment of the judge to whom the ease is presented.</p> <p>2. "While the use of descriptive words cannot be defended upon the ground that they constitute a trade-mark, yet where a descriptive word has .been before the public so long and to such an extent as that it would be unjust for anyone to simulate it, and thus enable his goods to pass off as the goods of another, equity, which looks at the substance and not the mere form of things, will prevent the use of such words and give the complainant relief by way of injunction.</p> <p>3. Where it appeared that tike trade-names “Rubberset,” “Hard Rubber Set” and “Hard Rubber Set and Bound,” of the complainant, have come to signify in the trade the brushes manufactured and sold by complainant, and that the use of the trade-name or mark “Rubber-Vulc” by the said defendant, and the use of the word “Rubber-Bound” as a part of the defendant’s corporate title, are likely to confuse and deceive the public, and that their use would have the effect of permitting the defendant to derive advantage from the large expenditures made, by complainant for its advertising and receive benefit from its outlay of money, and that said words “Rubber-Bound” were selected as a part of the corporate title of said defendant company with intent to profit by complainant’s trade reputation, an injunction will be issued restraining the use by the defendant of the words “Rubber-Vulc” or “Rubber-Bound” as a trade or distinguishing mark of brushes manufactured or sold by it, and also restraining the use of the word “Rubber-Bound” as a part of its corporate name or title.</p> <p>4. International Silver Oo. v. Rogers Go., 66 N. J. Eq. (21 Dioh.) 11/0, followed with respect to complainant’s prayer for an accounting.</p>

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

<p>1. Under the act of March 30th, 1892 (P. L. 1899 pp. 810, 311 §§ J¡, 6, 1), providing that no lien for work in constructing a municipal improvement shall be binding unless an action is commenced within ninety days, that the lien claimant may enforce its claim by a civil action, and that the claimant must make all parties who- have filed claims parties defendant, the claimant is not required to bring- suit to establish his claim within ninety days, where he has been made a party to a similar suit by another claimant; consequently where a lien claimant intervenes In a suit by another claimant, within ninety days, there is a sufficient compliance with the statute.</p> <p>2. Where a contractor for public work assigned to his creditor all of the moneys due him, a materialman, who has filed a lien for the amount due him, may contest the validity of the assignment.</p> <p>3. Under the Municipal Lien law (3 Comp. Stat. 1910 p. 8315), a contractor for municipal improvements may assign in advance to a creditor all moneys to be derived under the contract, and defeat the claims of those who furnished the materials for the improvement.</p>

<p>1. The bill is for the construction of the will of Warren Ackerman, and to' settle the accounts of the complainants, the surviving trustees. The will directed that the widow of the testator should have all his real property and certain tangible personal property for life. The testator then devised and bequeathed all the rest, residue, and remainder of his property to the trustees under the will in trust, to divide the same into eleven shares, one for each of his brothers, sisters, nephews, and nieces who survived him, and to pay the income from each share to the beneficiary for life, and on the death of the beneficiary, “to pay the principal of said shares so set apart for that brother, sister, nephew, or niece as lie or she may direct by his or her duly executed will and testament, and, in default of any such will to pay the same to the heirs or .next of kin of such brother, sister, nephew or niece, in accordance with the laws of the State of New Jersey in case of intestacy. The widow died June 16th, 1907. Theodore J. Ackerman, one of the eestuis que trustent, died January 8th, 1911. The fifth paragraph of Theodore’s will reads as follows : ■ “All the rest and residue of my property, of whatsoever the same may consist or wheresoever the same may be situated, I give to the New Haven Trust Company of New Haven, Connecticut, in trust, however, to pay over the income to my wife, Ellen D. Ackerman, and my daughter, Caroline E. Ackerman, during their lifetime, share and share alike, and upon the death of either of them the whole of the income is to be paid to the survivor.” Caroline survived her mother and now claims that her father, by his will, failed to execute the power, and that in default of such exercise she is entitled to the capital of the trust fund as heir and next of kin of her father. — Held, that Theodore did not, by his will, exercise the power of direction given him by the will of Warren Ackerman, and that Caroline is therefore entitled to one-eleventh of the trust fund'.</p> <p>2. Ezra P. Hoyt married- one of the beneficiaries under the will of Warren Ackerman and she left him her interest in the trust fund. Hoyt then married a sister of his deceased wife, who was also a beneficiary under the will, and she executed the power in his favor to the extent of nearly one-quarter of her interest in the trust fund. Hoyt died leaving a will, the nineteenth paragraph of which reads as' follows: “I give and bequeath to J. Ackerman Coles, so long as he shall live, the interest and income of all and singular the rest, residue, and remainder of my estate, real, personal or mixed, of every kind, nature and description, wheresoever situate, after paying from said interest and income the annuities hereinabove provided for, and the expenses of the administration of my estate.” J. Ackerman Coles is also appointed the executor of the will of Hoyt and the twenty-second paragraph directs that no security shall be required from any executor of the will in any state, the will being executed in New York. — Held, that J. Ackerman Coles is entitled to receive and take into his possession the proportions of such proceeds of sale directed to be paid to said Ezra P. Hoyt by the wills of Mary S. Hoyt .and Maria Ackerman Hoyt, and that there must first be granted to him ancillary letters testamentary in this state.</p>

<p>1. Upon the hearing oí a wife’s petition for an absolute divorce from ner husband on the ground of adultery, and his cross-petition for like relief against her on the same ground, it appeared that both parties had gonorrhea, and the question was which of them had it first and communicated it to the other. — Held, that evidence of antenuptial incontinence of the husband is not admissible to support-the charge of adultery in the petition.</p> <p>2. The fact that the petitioner remained with the defendant for some months after the discovery of the disease which, it is alleged, he communicated to her — Held, after a review of the evidence on this branch of the case, that her remaining there is not held to have worked such a condonation that would preclude her from securing a divorce under her petition.</p> <p>3. The defendant’s confessions are to be taken with extreme caution, and, without corroborating circumstances, might not be deemed sufficient to sustain the petitioner’s case.</p> <p>4. Upon a review of the whole case — Held, that there is no testimony to sustain the husband’s cross-petition, and that the petitioner is entitled to a divorce, and in her behalf a decree nisi is directed.</p> <p>5. Conversations had with a co-respondent in a divorce suit, in which he made certain statements relative to petitioner, are not admissible in the main issue, though they may he used to impeach co-respondent as a witness.</p>

<p>1. The jurisdiction of courts of equity to prevent injury from infringement of trade-names has been liberally exercised and applied in all circumstances -whenever it appeared that the name was an established, dis•tinctive and valuable adjunct to an undertaking, whether used to distinguish manufactured articles, a place of business, or a corporation, commercial, or one formed not for pecuniary gain.</p> <p>2. All that is required to bring into activity the injunctive powers of the court is to inform it that the complainant’s trade is in danger of harm from the use of. its name by the defendant in such a way as is calculated to deceive the public into the belief that the defendant’s affairs, in the respect complained of, are those of the complainant.</p> <p>3. A court of equity will lend its aid to restrain the unfair use of the name of a corporation formed not for pecuniary profit, to protect its property rights, i. e., the corporate entity, membership, its popularity and influence, and all that goes with them, of which the name is merely the badge.</p> <p>4. A fraudulent intent need not be shown to invoke the aid of the court, the test being: 'Is the resemblance calculated to mislead or confuse, to the complainant’s damage?</p> <p>5. Where the complainant was incorporated by the name of “Cape May Yacht Club” to engage in the pastime of yachting and boating by its members, and afterwards certain dissatisfied members seceded and incorporated the defendant, assuming the name of “Cape May Yacht and Country Club,” and the defendant embarked in the same line of amusement purveying as the complainant was engaged in, and exploited itself in the same immediate community where the complainant’s property rights were localized, i. e., Cape May harbor; located its temporary club house at a point of vantage near the inlet to the harbor, where its ensign would first greet and signal a welcoming invitation to yachtsmen bent upon visiting the complainant, and advertised and gave banquets and fetes upon occasions when the complainant was celebrating similar social .affairs, the conclusion is irresistible that the defendant imitated in part the complainant’s name designedly with a view to attracting attention from the complainant and drawing to itself the patronage and prestige which the complainant would otherwise enjoy, and there can be no doubt left in the mind that the defendant was persuaded in the selection and use of its name by motives which were both selfish .and sinister and intended to mislead and confuse.</p> <p>6. Where the complainant’s pennant consisted of a white ground, blue border of one-fifth of the hoist of the flag containing twelve white stars with a large blue star in the centre of the ground, and the flag adopted by the defendant is in all respects as to size, color and design like that of the complainant, except .the star in the white ground is red instead of blue — Held, that what has been said with reference to the use of the name, applies to the pennants. They are identical save as to the inconspicuous color of the centre star. It would require an informed mind and a trained eye to distinguish them.</p>

<p>. 3. The burden of establishing a resulting trust is on the party asserting it. He must prove not only that the consideration for the conveyance was paid by him or out of his funds, but also that the money was paid as the purchase price and not as a loan. When there is evidence from which it may be inferred that the money was advanced as a loan, the burden is on him to overcome this inference by clear and satisfactory proof.</p> <p>2. A resulting trust arises by operation of law from contemporaneous circumstances which give' the legal and equitable titles different directions. It must, therefore, arise at the instant the deed is taken and the legal title is vested in the grantee, and the situation of the transaction when the title passes is to be looked to, and not the situation preceding or following that timé.</p> <p>3. After a review of the evidence — Held, the complainant has not sustained the burden of proof. The weight of the evidence is clearly with the defendant that the complainant advanced the purchase price as a loan.</p>

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

<p>1. A petition by an infant m propria persona is irregular. A next friend must be joined, as an infant always sues by next friend.</p> <p>2. The provisions of the Orphans Court act requiring guardians to file inventories and accounts within a prescribed time is merely directory. Non-compliance, unattended by fraud, gross neglect or indifference to duty, is not a cause for removal from office.</p> <p>3. The misconduct of a guardian in the management of another trust estate upon an application to remove him from office, is relevant only to show general unfitness for fiduciary duty, and such misbehavior in that respect may not be invoked as a substantive cause.for removal.</p> <p>4. A guardian will not be removed where hostility exists between him and his ward, occasioned by the misbehavior of the ward.</p>

On petition to compel the comptroller of the treasury to issue his consent to the transfer of corporate stock of a non-resident decedent.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. 311.</p> <p>On final hearing on pleadings and proofs.</p>

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

43. Bill to foreclose. The mortgage was given by Edward T. Flood to Edward H. Eyan to secure $6,000. It is dated June 4th, 1904, was recorded June 17th, 1904, and conveyed six vacant lots worth only $3,000, part of -a tract of land which Ryan was developing for sale. Ryan assigned the mortgage to Adelia A: Leonard, the complainant, hy assignment dated September, 1904, but not recorded until December 3d, 1910. The complainant paid full value.

<p>In the absence of some recognized equitable ground for relief, a deed of trust, properly executed, and understood by the parties, in which the grantees have an interest, will be enforced.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 80 N. J. ' Eq. (10 Buch.) 88.</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 Howell.</p>

<p>On appeal from an order of the court of chancery advised by Vice-rChancellor Howell, whose opinion is reported in 79 N. J. Eq. (9' Buch.) 498.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported ante p. 416.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. S51.</p>

<p>On appeal from a decree of the court of chancery advised by Yice-Chancellor Howell, whose opinion is reported ante p. 412.</p>

<p>On appeal from a decree of the court of chancery advised by-Vice-Chancellor Howell, whose opinion is reported ante p. \1%.</p>

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

<p>On appeal from a decree of tlie court of chancery advised hy Yice-Chancellor Howell, whose opinion is reported sub nom. Knickerbocker Trust Co., Trustee, v. Carteret; Steel Co., ante p. ISO.</p>

On apneal from a decree of the court of chancery advised bjr Vice-Chancellor Howell, whose opinion is reported ante p. kl9.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 80 N. J. Fq. (10 Buch.) 101.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported ante ¶. 296.</p>