Volume 83 — New Jersey Equity Reports

<p>1. Irregularity in the proceedings of municipal corporations cannot he made a ground for relief in equity; the supreme court is the proper tribunal in which to review th’e action, and correct the errors, of inferior tribunals.</p> <p>2. Cases in which chancery will interfere with municipal corporations must be marked by some well-defined principle of equity.</p> <p>3. If the price to be paid for a public improvement be so excessive as to shock the conscience, a court of equity may properly interfere by injunction to save the municipality’s money from willful waste or fraudulent diversion.</p>

<p>1. On a bill for an accounting with respect to all dealings and transactions between the complainant, as widow of a deceased co-partner, and the principal beneficiary and residuary legatee under his will, and who is also the executrix thereof, and the'defendant as surviving partner who is charged with fraud and who died pendente Ute before the hearing, evidence held insufficient to entitle the complainant to relief.</p> <p>2. Where business is carried on by partners who have unrestricted access to the books, papers and business of the firm, it becomes the duty of the partners to examine them and complain promptly of' any mistakes therein, and much more so of fraudulent transactions.</p> <p>3. To entitle the complainant to an accounting extending over many years, where there was such free access to books and accounts by the partner alleged to have been defrauded, and with both partners now dead, and thus unable to explain their transactions, in order for the complainant to prevail she must adduce clear and convincing evidence of the correctness of her allegations.</p>

Heard on petition and affidavits, answer and affidavits. On petition of Nathan Bijur, assignee. The Spirits Distributing Company, a corporation of this state, voluntarily dissolved by proceedings under the Corporation act, and by decree in this suit dated July 8th, 1902, the answering defendants, directors of the company at the time of the dissolution, together with James A. Webb and Wm. E. Harrity, since deceased, were continued as trustees on dissolution under the statute.

<p>1. A purchaser who, before receipt of his deed or payment of money, except a deposit of $100, had notice of his vendor’s prior contract to sell and convey, was not a T)ona fide purchaser or protected against the previous contract, except as to the $100.</p> <p>2. Heirs of a purchaser are entitled to specific performance, and to have the administrator pay the purchase price out of the personal estate, and the fact that such heirs are infants does not of itself prevent specific performance in their favor, if either they or someone in their behalf are able to carry out the conditions of the contract.</p> <p>3. A married woman as purchaser, though not as vendor, can be compelled to perform specifically, so that, as between her heirs and the vendor, the remedy is mutual.</p> <p>4. A purchaser’s right to specific performance depends on the fulfillment of the conditions to be performed on his part, and his assignee, even when under no disability, cannot substitute his personal liability-on the unperformed conditions against the consent of the vendor, and, where the assignee is a trustee, and the execution of the contract requires covenants, specific performance in his favor cannot be compelled, unless he personally enters into the covenants.</p> <p>o. A married woman agreed to purchase land for $12,000 and to pay the purchase-money, and died intestate before the day fixed for passing title, leaving her husband surviving, who was appointed administrator, and three infant heirs-at-law, and a total personal estate not exceeding $2,000, and thereafter the vendor agreed to sell to.defendant for $12,000, of which only $100 was paid before notice of the prior contract, $6,000 by accepting a conveyance subject to a mortgage for that amount, $8,500 by a purchase-money mortgage, and $2,400 in cash at settlement. The administrator individually, and as next friend of the infant heirs, brought a bill for specific performance. — Held, that, although the personal estate was insufficient, and the infants, on receiving a conveyance, could make no valid contract for further payments, or give a bond therefor, or assume payment of the first .mortgage, and the defendant could not be compelled to accept a mortgage for the balance of the purchase-money, without any personal obligation for its payment, yet, as it was manifestly the intention of the contract of sale that the conveyance should be made on payment of the purchase price, there would be a decree for conveyance upon payment thereof, less the $6,000 mortgage.</p>

<p>The insolvent corporation borrowed money from a bank on two notes, one of which matured the day after it was adjudged insolvent and the other subsequently. The insolvent’s balance on deposit was set off by the bank against the notes, and the bank proved its claim for the balance due. Corporation act (8 Gomp. Stat. 1910 p. 1643 § 66) directs the receiver, in case of mutual dealings between a corporation and any person, to allow just set-offs in all cases in which the same ought to be allowed according to law. — Eeld, that, as the act is essentially a bankrupt act, and its provisions ought to be construed accordingly, the bank was entitled to set off the balance due the insolvent corporation and prove for the remainder of the debts, even though one of the notes was not then due. McManus-Kelly Co. v. Pope Hamtfacturing Co., 70 Atl. Rep. 297, disapproved.</p>

<p>1. A depositor signed a printed form directing the bank to add her sister’s name to the account, giving joint rights therein, and to pay the deposit to either or to the survivor. A by-law printed in the pass-book provided that no one should have the right to receive any sum without producing the pass-book. Thereafter the original depositor stated that she did not wish her sister to have the money, and drew certain sums and retained the book in her possession until her death. — Held, that such form was made only to facilitate the drawing, of the money, and. that the original depositor intended to retain and, in fact, did retain control of the deposit during her lifetime, so that there -was no completed gift inter vivos.</p> <p>2. Statute of wills, prescribing the manner in which a testamentary act shall be executed, was not impliedly repealed by Savings Bank act (4 Gbmp. Siat. 1910 p. 4708 § 27), providing that a deposit made in the name of two persons payable to either or to the survivor may be paid to either, whether the other be living or not, since the later act was intended only to protect savings banks, and the two statutes may stand together; and hence a depositor’s act in making the deposit payable to her sister or to the survivor, but intending to retain and retaining the pass-book and control of the fund during her lifetime, did not operate as a testamentary disposition of what remained at her death.</p> <p>8. Such acts of the depositor did not have the effect to give any beneficial interest to a joint depositor as survivor, since the gift was never completed, and an incomplete gift will never be perfected in a court of equity.</p>

<p>1. Where the constitution and by-laws of a benevolent society wére promulgated contemporaneously in Russian and English, the fidelity of the English text could not be questioned after many years, during which the members had the right to rely on its accuracy.</p> <p>2. Where, by the practical construction given the constitution and bylaws of a benevolent society, the words “Greek Oatholic,” in the provision naming those eligible for membership, had been for almost twenty years regarded as including members of the Russian communion, members of that communion who had been admitted could not thereafter be expelled on the ground that they were ineligible.</p> <p>3. An amendment of the by-laws of a benevolent society excluding from membership therein members of the Russian communion did not authorize the expulsion of members of that communion who had been previously admitted, as it could not have a retroactive effect.</p> <p>4. The contract of a society organized to provide sick benefits, pay funeral expenses, and help the widow or others left behind, with members who pay an initiation fee and monthly dues, which are supplemented from other sources, is not an ordinary contract of insurance, and the rights of members unlawfully expelled are not to be decided as though it were an insurance proposition.</p> <p>5. An ordinary “contract of insurance” is defined as an agreement to pay a given sum on the happening of a particular event, contingent upon the duration of human life, in consideration of the immediate payment of a smaller sum or a certain equivalent periodical payment.</p> <p>6. The property of a society organized to provide sick and death benefits is impressed with a trust for the uses of the society, but the trust is for all the members, and none can be deprived of their interest therein, except as provided in the by-laws.</p> <p>7. Where a benevolent society has unlawfully expelled- all those of a certain class, and the remaining members, who are in the majority, desire to continue the society, equity will not exercise its power to dissolve it, but will decree a fair distribution of the property between the expelled members and those who remain.</p> <p>8. Mandamus is the appropriate remedy to compel reinstatement of members of a corporation who have been wrongfully expelled, but not in the case of an unincorporated association.</p> <p>9. Injunction will not issue to compel the reinstatement of a faction in a beneficial religious society who have been wrongfully expelled after much heat and violence, as to do so would not be consistent with equity.</p>

<p>1. It is not necessary that a public nuisance should be injurious to health; if there he smells offensive to the senses, that is enough, as the neighborhood has a right to fresh and pure air.</p> <p>2. By section 28 of the Health act {Comp. Stat. p. 2668) providing that any local board of health, instead of resorting to the summary method of abatement, may file a bill for an injunction to prohibit the continuance of a nuisance “hazardous to the public health,” the statutory test is not injury but hazard. The proof must show a nuisance — not, necessarily, injurious to health but likely to be, or that may by the operation of chance or hazard become so.</p> <p>3. A piggery containing throughout the year from fifty to one hundred pigs, large and small, creating an odor perceptible within a radius of one thousand feet under certain conditions of the wind and weather, and growing stronger as the distance from the pen diminishes, possesses the characteristics of a public nuisance, it appearing that the odor pervades a neighborhood made up of dwelling-houses; has caused loss of appetite, headaches. and nausea to several of the neighbors; is at times perceptible in a public street and is instrumental in breeding great quantities of flies which at times are seen to swarm upon the fence bordering the highway, and might, in case of an outbreak of typhoid fever, cholera or some other kinds of disease, act as carriers.</p> <p>4. The mere fact that the odor is not noticed by or does not affect some of the neighbors, does not show that it is not a nuisance to others.</p>

<p>Plaintiff had insured premises used as a dwelling-house. Thereafter the premises'were altered to be used for manufacturing oil stones, the insurance policy changed accordingly, and the premium increased. At the expiration of the policy the company sent the plaintiff a new policy insuring the same premises for which it charged the increased premium. Upon this new policy had been stamped a warranty that the building was occupied exclusively for dwellings, but the clause was very much blurred and almost unreadable. The complainant failed to notice the stamped words and paid the premium, and was not advised of the provisions of the clause until after a fire. The agent who stamped the clause upon the policy was not called to explain his action. — Held, that the ease was one of mutual mistake and that the policy should be reformed by striking the stamped words therefrom.</p>

<p>1. Assuming that the cessation on the wife’s part of sexual intercourse, without more, is sufficient desertion if the husband would take advantage of his wife’s failure of duty in this regard, he must be able to show that he has fulfilled the equally important marital obligation of furnishing her, according to his means, with sufficient food and clothing.</p> <p>2. Evidence of husband’s means and as to the sufficiency of food and clothing by him furnished to his wife, held to show a very inadequate support, even if he had an old debt to pay, and some other professional expenses.</p> <p>3. The wife’s declaration to witnesses that she would not cohabit with her husband any longer, casually uttered in moments of resentment, are not entitled to much weight as evidence of a fixed resolve. They may well have been used in reference to the then .situation.</p> <p>4. If the wife’s act was desertion in the first instance, it was the husband’s duty to make proper effort to terminate it by making those advances and concessions which might reasonably have been expected of him, with a view of inducing her to return. The appropriate concession in this case was a more adequate support.</p>

<p>1. The legislature has, by necessary implication from its various acts giving to municipalities a right to obtain a water-supply, granted to them the state’s right in so much water to be taken from the streams of the state as they may need for their lawful purposes.</p> <p>2. Municipalities having the right by implied grant from the state to appropriate water from streams for their lawful uses and purposes can, under the express provisions of act 1888 (2 Gen. Stat. 1895 p. 2210 § 40.5), contract with water companies to supply such water, and thus make them their agents or instrumentalities for that purpose.</p> <p>3. Under act 1888 (2 Gen. Stat. 1895 p. 2210 § 405), authorizing municipalities to contract with water companies to supply them with water, a water company with whom a municipality has so contracted may contract with other companies for the use of their pipes and pumping systems.</p>

<p>By an agreement in writing dated November 5th, 1909, the defendant Abbey agreed to sell to the defendant Schwerin certain stock, the price to be paid in monthly installments up to April 15th, 1912, at which time “the balance of the principal sum with all accrued interest at the rate of six per cent, per annum, computed quarterly on all balances due after the payments herein provided are made, shall be paid.” — Eeld, that to comply with its terms we must for three months deduct the three preceding monthly payments from the principal sum then unpaid and calculate interest on the remainder from the date of the last preceding quarter.</p>

<p>On final tearing on bills, answers, replications and proofs taken in open court.</p>

<p>1. Owners alleging in their bill for injunction that the taxes sought to be collected had been paid in full in cash were entitled to relief- in a court of equity.</p> <p>2. On judicial confirmation of a commissioners’ report made in 1903, under the Martin act, adjusting disputed personal property taxes for a series of years, the city received the entire amount of the award in cash, receipted its collector’s bill, and discharged the taxes on its books. In 1911 the tax collector being advised that the award and adjustment were void, changed the entry in the tax books so as to credit the taxpayer with the amount received under the award, and sought to enforce collection of the balance due on the assessments involved in the award. — Held, that collection would be restrained, unless the city first repaid to the tax debtor the amount paid by it in discharge of the award.</p> <p>• 3. Under the statute imposing upon the circuit court the duty of confirming tax adjustments, the court had the right to set aside a report which it had formerly confirmed, and refer it back to the commissioners and to confirm the report subsequently made.</p> <p>4. On a bill for injunction against the collection of taxes claimed to have been paid under an award of commissioners under the Martin act, the legality of the award and the confirmation thereof cannot be questioned by the defendant, there being no suggestion of fraud, but rather a contention that the action of the court in vacating a prior order of confirmation was erroneous.</p> <p>5. If the confirmation of such prior report was vacated by the bona fide consent of all the parties interested, the final order of confirmation was immune from collateral attack in the injunction suit, though the court, without such consent, would have been without jurisdiction to make the order of vacation, and its action sua sponte would have been open to collateral attack.</p> <p>6. A city may be bound by the honest action of its officers conducting a litigation for the city and affecting the procedure therein, though the action of the officers may have resulted to the disadvantage of the city.</p> <p>7. The circuit court’s confirmation of a commissioners’ report in a tax adjustment proceeding, although judicial in character, need not be put in the form of an order or entered in the minutes, as is required in proceedings generally by supreme court rule 40, but may be endorsed upon the report which may then be filed in a public office as notice of confirmation, and, where the duty, if any, rested upon a city through its counsel to have the rule entered in the minutes, it could not, after having accepted the award of the report, object that it was not entered, especially in view of the uniform practice of filing confirmation orders, but not entering them in the minutes.</p>

On order to show cause why the respondent, Carl Raisch, should not be adjudged guilty of malpractice as solicitor of the court of chancery, and thereupon be put out of the roll of solicitors of this court, and be suspended from practicing as solicitor of this court, or until the chancellor shall otherwise order, or be otherwise disciplined and punished for his misconduct as may be deemed equitable and just.

<p>1. While the powers of the officers of a building and loan association are defined by its by-laws, by which the members are bound, the association may adopt a course of dealing founded on its business necessities or conveniences, which may be made the basis of duties and liabilities by it not defined by the by-laws.</p> <p>2. After defendant had paid out all of his indebtedness to a building and loan association, except $87, due on a loan, and two judgments against him, the association agreed to make a new loan for $800, and a warrant was drawn in favor of defendant for the full amount of the new loan, and was presented to defendant by the secretary and solicitor for endorsement, after which it .was retained by the secretary and solicitor, so that the amount due on the prior loan and the other prior liens would be paid out of the $800 and the remainder paid to the defendant, but the secretary instead wrongfully appropriated the amount to his own use. The prior lien was secured by an absolute deed to certain property, as well as by a pledge of the stock. — Beld, that it was not contemplated that the warrant should be delivered to defendant absolutely before the amounts due the association on the prior loan, &c., were paid, so that it cannot be claimed that defendant, by endorsing the warrant to the secretary and .solicitor, made the latter his agent for receiving the proceeds of the warrant, so as to entitle the association to treat the deed held by it to secure the prior loans as a lien to also secure the subsequent loan of $800.</p>

<p>Hearing on motion to strike out bill for want of equity.</p>

<p>1. An agreement, not under seal and without consideration, by the owner or tenant of real estate, permitting its use by another, is not operative as a grant, but is a mere license revocable at pleasure, which may afford justification for the licensee’s acts thereunder prior to revocation, but not thereafter.</p> <p>2- Where a parol or written license to occupy land has been executed by possession in such manner that its revocation would be a fraud upon the licensee, equity will protect the licensee against a revocation, and preserve his rights under the license.</p> <p>3. Evidence, in a suit to restrain the completion of a building on certain land under a license to erect a building thereon, held, to show that the building was being erected in substantial accordance with the agreement of the parties, which contemplated that it should be finished on the inside and occupied jointly by both parties for storage purposes.</p> <p>4. Where a written license to erect a building on certain land was silent as to the character of the building, but both parties agreed that its character was stipulated upon, the situation was that of a separate oral agreement, and parol evidence was admissible as to the terms thereof. .</p> <p>5. Where defendant erected a, building on certain land under a license from complainant, in accordance with the agreement, except that a stairway was not built as agreed, because the building inspector refused to permit it, which caused little, if any, inconvenience, a court of equity will not recognize an attempted revocation of the license as depriving defendant of his rights thereunder.</p>

<p>Equity will not entertain a bill to set aside a sale of real estate under process of a law court, unless a deed has been executed, since a law court has a summary jurisdiction • of an equitable nature to prevent its own judgments from being the means of working injustice, which jurisdiction exists until the process has been finally executed.</p>

On final hearing on bill for injunction. Defendant is a fraternal and beneficial society incorporated under an act entitled “An act to incorporate benevolent and charitable associations,” Revision, approved April 9th, 1875. At the time complainant became a member the by-laws of the society provided for a fund from which payments of $500 should be made to the beneficiary of each deceased member who should be found to be entitled to death benefits at his decease.

<p>1. Where an insurer pays for loss by fire occasioned by the negligence of a railroad company, it becomes entitled to subrogation against the » railroad company by operation of law, and a subrogation receipt or other agreement is unnecessary.</p> <p>2. Defendant’s property, which was insured by complainant, was fired by the negligence of a railroad company. After complainant made payment to the amount of the policy and received a written receipt declaring that it should be subrogated to that amount, defendant settled with the railroad company, executing to it a release of all claims. — Held, that as defendant settled the claim without complainant’s knowledge, and did not notify it of the giving of a release which was a prima facie bar, complainant is entitled to hold defendant as trustee for the amount of the loss which it paid. i</p>

<p>1. An insurance against loss by fire is an indemnity which the assured holds, and, when the insurance company pays the insured the amount for which it was liable, the insurer becomes subrogated to any rights, of the insured as against a third person to the amount of the payment.</p> <p>2. An insured sustained a loss by fire which was only partially covered by insurance. He collected the amount of the policy, and sued a railroad and recovered a judgment for $6,000, which was compromised for $3,000. — Held, that the insured held the $3,000 in trust for the insurance company, to the extent of the amount of the policy paid, as the insurance company became the equitable assignee of the right of action against the railroad, the legal title remaining in the insured, and the insured could not compromise without the consent of the company.</p> <p>3. An insurance company after paying a fire loss has a right of subrogation, regardless of whether there is a subrogation clause in the policy, because the insurance is an indemnity, and the primary liability is upon the one who wrongfully occasions the loss.</p>

<p>On final hearing on petition for divorce.</p>

<p>1. That a buyer of personal property from an insolvent debtor permits the latter to remain in possession for a season does not render the transaction void per se as a conveyance in fraud of creditors, but such possession is regarded only as a badge of fraud, to be considered in connection with the other circumstances in determining the good faith of the transfer.</p> <p>2. In order that a transfer of personal property by an insolvent debtor to his creditor, not followed by an immediate change of possession, shall be valid as against the debtor’s other creditors, it must be based on a good consideration, and must be made in good faith.</p> <p>3. Where a creditor of an insolvent, knowing that a purchase of certain of the debtor’s personal property and a credit of the price on the debt was the only way he would be able to get anything, made the purchase, and, in order to do so, agreed that the debtor might retain possession for a season, without any actual fraudulent intent on the part of the purchaser, the transfer was not fraudulent as against the debtor’s other creditors.</p>

<p>On final hearing on bill for injunction to restrain violation of restrictive building- covenants.</p>

<p>In a suit for divorce on the ground of desertion, where the parties have been separated for over two years, and during that entire period the husband has been a resident of this state in the very place where the separation occurred, no suit has been commenced by the wife asking for his support, and no new need or changed condition of the wife is shown to have arisen, alimony pendente Ute should not be granted, in the absence of a reasonably clear showing that the husband has in fact been the deserter, or unless some satisfactory reason is given for the failure of the wife to earlier seek the relief to which she would have been entitled had her husband in fact been the deserting party.</p>

<p>1. By an item in her will a testatrix gave to five named persons “to each and all above or to their heirs two thousand dollars.” — Held, that the contention that thereby the testatrix appropriated the sum of §2,000 to be divided among the five persons therein named, giving them $400 each, is not admissible, but that she intended to give to each one of the said five persons the sum of $2,000, or $10,000 in all.</p> <p>2. By another item in her will the testatrix gave to her half-sister all her “furniture and personal belongings.” — Held, that the words “furniture and personal belongings” carry the contents of her apartments in an apartment-house wherein the testatrix lived, as they were at the time of her death.</p> <p>3. Another paragraph of the will of the testatrix relating to a bequest to the poor children of Dresden, upon which two questions arise, the first as to what property is included in the bequest, and the second, whether the bequest is valid as a charitable use, provides as follows: "IIII. My Old Master paintings which are in the safety deposit vault of the Bank of Montclair, including a Panini & Wouverman, also a Sálvate Bosa, are to be taken to Europe to be recognized by art authorities and the proper and highest prices are to be sought for them in sale and the sum obtained through these is to be given over to to charity, namely, to the poor children of Dresden, Saxony, Germany, for a summer home, among these pictures being a genuine Turner and Raephael and other famous and noted Masters, and they are known to be genuine a high price ought to be obtained sufficient to realize this the above. Should more than twenty-five thousand dollars be obtained the balance is to be divided among my brothers and sisters heretofore mentioned, my half sister Martha Buetner at Erfurt Eisenwach to receive the sum of three thousand dollars for her little daughter, Lottie.” By the fifth item of the codicil the testatrix provides for the sale of her land at Pittstown, giving her half-sister some portion thereof, and then proceeds: “The balance of the money or proceeds of said sale of farms and land to go to the fund for the vacation colony for poor children in Dresden, Saxony, Germany.” — Held, (1) with respect to the question what property is devoted to the satisfaction of this bequest, that the same comprised such paintings as she had on storage at the Bank of Montclair, it being doubtful from the evidence whether she had on storage with that bank any paintings of the character described by her as Old Master paintings, but it appearing that she did in fact have there on storage certain pictures which she meant to devote to the charity named by her; and held further, (2) with respect to the validity of the bequest as a charity, that the bequest contained in the will and in the codicil in that behalf is a valid exercise of the testamentary power; and held further, (3) that the fact (a) that no person or corporation was appointed to receive the bequest, that circumstance will not invalidate the bequest, inasmuch as equity never lacks a trustee; and (b) the direction that the pictures be taken to Germany for recognition by art authorities, or for any purpose, is not binding upon the executor, the provision in the will in that behalf being merely directory and not mandatory; and (c) as to the variance between the provision in the original will and that contained in the codicil, the original will making the gift to “the poor children of Dresden, Saxony, Germany, for a summer home” and the codicil providing that the balance of the money arising from the sale of the farms shall go for the “vacation colony for poor children in Dresden, Saxony, Germany,” the will and the codicil must be construed together and with reference to each other, and thereby the testatrix had in mind at the time she executed 'the codicil the same gift and bequest that was in her mind at the time she executed the will in favor of the summer home for the poor children of Dresden.</p> <p>4. By another bequest the testatrix gave to another legatee “a painting to be selected, and also a few Oriental rugs to be selected by her.”' — ■ Held, that that portion of the bequest which relates to the painting is valid, but that the one which relates to the Oriental rugs is void, for uncertainty.</p> <p>5. By another item of her will the testatrix made certain bequests to one of the witnesses to the will. — Held, barred by the statute.</p> <p>6. By another item of her will the testatrix directs that her house on Upper Montclair avenue “on which rests a loan of $3,000 in the Bank of Montclair” shall be sold, &c. There was no loan of $3,000 obtained from that bank which was in any way a lien upon this land. The testatrix had borrowed $3,000 on her note, with collateral security, but there being nothing in the transaction or in the will or codicil charging that loan of $3,000 on the Dpper Montclair avenue property — Held, that the executor, or Louisa Hasse, the half-sister, or perhaps they jointly, should sell the said property subject to the $4,000 mortgage in that paragraph mentioned.</p> <p>7. Under item five of the codicil relating to the distribution of the proceeds of the sale of the farms of the testatrix at Pittstown, New Jersey, Louisa Hasse, the half-sister of the testatrix, claiming that she is entitled to $2,500 out of such proceeds, and the residuary legatees resisting this claim and asserting that she is only entitled to $500, or, in other words, enough to bring her total cash legacy up to $2,500 — Held, that the testatrix intended that these farms, three in number, should be successively sold and that her half-sister Louisa should receive $2,500, all told from the proceeds of the several farms, the words “all told” referring not to the money legacy but to the farms.</p>

<p>1. Under P. L. 1880 p. 255, providing that no sale of property shall be confirmed by the court until the judge is satisfied that the property has been sold at the highest and best price, confirmation of a judicial sale is a mere determination that the property brought the highest and best price that could be obtained for it, and hence an application to open the sale will be entertained after confirmation; the only mode of attack upon a judicial sale on grounds other than that the property did not bring the highest and best price being by independent bill or petition, which can be filed after confirmation.</p> <p>2. In determining the rights of a purchaser to be relieved of his purchase at a judicial sale of land, the courts must have recourse to the principles which would govern in a proceeding to rescind an ordinary contract of sale.</p> <p>3. Unless the fund is under the control of the court, that tribunal will not relieve a purchaser at a judicial sale of his purchase, except on the ground of fraud.</p> <p>4. An owner of land devised it to his wife during widowhood, with a provision that, upon her death or remarriage, and upon the arrival of his youngest child to the age of twenty-one years, his executors should divide the property into as many shares as there might be children, or heirs of deceased children. The widow and daughter of the testator filed a bill for partition, and the property was advertised for sale, as if the parties held by fee-simple title. — Held, that, under P. L. 1906 p. 269, providing that a purchaser at. a judicial sale shall be relieved of his purchase by showing a defect in the title, unless notice of the defect was given in the notice of the sale, a purchaser was entitled to be relieved of his purchase; for the .decree of partition did not operate on the title to the land, and could not invest him with fee-simple title.</p>

<p>1, Although an agreement to convey lands does not contain the phrase “good title,” if it does contain a covenant to “well and sufficiently convey” to complainant’s assignor, “his heirs and assigns by deed of full covenant and warranty, free from all encumbrance except,” &c., this means that the vendor is bound to make a good title.</p> <p>2. The vendor having agreed that he would make a good title, and finding it impossible to do so, must, at the call of the vendee, convey what interest the vendor has, and receive the purchase-mopey, less an abatement thereof equal to the value of the interest not conveyed.</p> <p>3. A purchaser on a bill for specific performance filed by the vendor will not be compelled to accept compensation or indemnity, but on a bill by the purchaser the vendor will be required to allow compensation if he should be able to make title for a part, but not for the whole, if the purchaser consents to accept part performance with compensation.</p> <p>4. This rule prevails whether the deficiency relates either to the quantity or the quality of the estate, that is to the physical amount or tenure of the holding.</p> <p>5. The complainant in this suit being entitled to a decree that the defendants convey to the complainant whatever interest they have as life tenants during the life of a named person or otherwise, the deduction to be allowed is to be determined by ascertaining the value of the life estate and deducting the amount thereof from the total purchase-money, which will leave the sum to be allowed for compensation.</p> <p>6. But in this adjustment of the equities between the parties, the complainant must give up his claim for a warranty deed or must submit himself to a perpetual injunction to be provided for in the decree, against bringing any action, either at law or in equity, for the violation of any express or implied covenants on the part of the vendor touching the land in question.</p>

On final hearing on bill, answer, cross-bill, replication and proofs. This suit is brought for the partition of a farm near Johnsonsburg, in Warren county, formerly owned by one Isaac Stickle, who died in the month of May, 1900. He left a will by which, among other things, he appointed his three sons Joseph P. Stickle, Philip Stickle and Jolm A. Stickle as executors thereof.

<p>1. When an executor has settled his accounts in the orphans court and obtained a final decree fixing the amount of assets in his hands, and a person living in a foreign country beyond tbe seas makes claim that he is next of kiu of the decedent, and filed a petition in that court praying that the whole estate be awarded to him as such, and the fund in the executor’s hands is likewise claimed by a municipality on behalf of the department of the poor and alms, a bill is maintainable in this court by the executor for the purpose of withdrawing the litigation over the distribution of the estate into this court, where such bill sets forth the rival claims to the fund, and, among other things, prays for a discovery by the claimant of the means whereby he claims to be next of kin of the decedent, and the names and addresses of the persons by, through and under whom he claims to occupy that relation to her.</p> <p>2. This court has concurrent jurisdiction with the orphans court of all matters pertaining to the administration and settlement of estates of decedents. But after a proceeding has begun in the orphans court, this court will not disturb it in its jurisdiction unless there exists some equitable reason why it should do so. In this case the reasons urged are the opposing claims above mentioned, and the necessity of a discovery from the claimant of the facts relating to his position as next of kin.</p> <p>3. It is manifest that the statement of the complainant executor, that he has been unable to ascertain or determine whether the claimant is entitled to the place of next of kin of the decedent and has no means of ascertaining the truth of his claim, shows that the complainant must have the aid of this court to procure such evidence as may be necessary properly to make a defence to the claim, if a defence shall be made, or to investigate it and find out whether it is a true or false one.</p>

<p>On final hearing.</p>

<p>On petition for leave to convey land.</p>

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

<p>On bill, &e. On motion for a new trial.</p>

<p>1. Dhe rule that a divorce for defendant’s adultery will be refused if the petitioner has been guilty of willful, continued and obstinate desertion for two years next before the filing of the petition, would not apply to make petitioner guilty of desertion for failing to take the defendant back after receiving a letter asking him to do so if two years had not elapsed between the receipt of the letter and the beginning of the action.</p> <p>2. Where a wife had frequently deserted her husband, it cannot be assumed that the husband’s failure immediately to become reconciled upon his wife’s offer to return after leaving him, was a willful desertion by him.</p> <p>3. Rapp v. Rapp, 67 N. J. Eq. 236, distinguished.</p>

<p>1. P. L. 191% p. 551 § 1, as amended by P. L. 1913 p. $06, provides that the state water supply commission shall have power to acquire by condemnation any water rights deemed necessary for appropriating or conserving the potable waters of the state to the general use, and, in order that the desirability of the acquisition of any water plant may be ascertained, the commission may enter upon the property, have access to the books and accounts of the company, &c., and, in case of refusal to comply with such request of the commission, it may direct the attorney-general to proceed in the name of the state to enforce its order “in a court of competent jurisdiction,” and, upon the filing of a petition by the attorney-general, citation shall issue requiring such persons to show cause why the information shall not be given, and the court shall summarily hear the cause and may pass such order as will cause the production of such information and enforce such orders by injunction, process for contempt, or such other process' as may be applicable in such cases. — Held, that mandamus was the proper remedy to compel a water company to permit an examination of its premises by the state water supply commission, arid that a mandatory injunction would be refused.</p> <p>2. Mandamus will issue to enforce a statutory duty imposed upon a private corporation, if there is no other adequate or specific remedy.</p> <p>3. Unless mandamus is inadequate for the purpose, equity has no jurisdiction to compel the performance of a statutory duty, by mandatory injunction, in the absence of some other well-established equitable ground of jurisdiction.</p> <p>4. To authorize a bill of discovery, there must be a legal right which is sought to be enforced in a pending or contemplated judicial proceeding, and in aid of which a discovery is necessary.</p>

<p>1. A will directed that the income of one-half of the testator’s estate be paid to a daughter for life, and that upon her death the principal should be divided “among the children of my said daughter in equal shares or parts, and in case my said daughter should die without leaving lawful issue, * * my executors are hereby directed to divide said sum * * * equally among all my brothers and sisters, * * * the child or children of any deceased brother or sister to take their parent’s share.” — Held, that it was testator’s intent that, if there was a failure in the direct line of descent his estate should go to the collateral lino per stirpes.</p> <p>2. The interest bequeathed to testator’s brothers and sisters and the children of deceased brothers and sisters vested immediately, subject to being divested if there were direct descendants living at the life tenant’s death.</p> <p>3. The gift over to “the child or children of any deceased brother,” &c., would include a granddaughter of a brother, in view of the fact that, when the will was executed, the granddaughter’s father and grandfather were, to testator’s knowledge, both dead.</p> <p>4. In a suit to construe a will which gave a sum to testator’s daughter for life, and upon her death to be divided among her children, but, if she died without issue, then to be divided equally among testator’s brothers and sisters and the child or children of any deceased brother or sister, in order to bar the widow of the deceased son of testator’s daughter, who died childless before the daughter, his personal representative’ should have been made a defendant, as should the personal representatives of certain children of testator’s brothers and sisters.</p>

<p>On bill for construction of will.</p>

<p>1. An agreement by the solicitor for a laundry that, upon termination of bis employment, he would surrender a list of his customers, and would not solicit orders from any of such customers, either for himself or as an employe of any other person or corporation in the county where the employer was operating, and would not engage in such business in any capacity for himself or with others in such county for two years from the termination of such employment, was reasonably necessary for the protection of the employer’s business, both in the restriction as to area and time.</p> <p>2. Such contract was not illegal as preventing defendant from engaging in such business “in any capacity,” since it was not broader than necessary for the protection of the employer’s business.</p>

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

<p>On final hearing.</p>

<p>1. Where complainant in a suit for separate maintenance claimed that a common law marriage agreement was entered into between her and defendant upon a certain date, she cannot rely upon any other agreement, and proof of subsequent cohabitation with defendant and reputation of marriage is only evidence that the agreement claimed was made.</p> <p>2. In determining the sufficiency of the proof to establish a marriage per verba de prassonii, regard must be had to the intent of the parties, the time which has elapsed since the assumption of the relation, and the manner in which the parties had cohabited in the meantime.</p> <p>3. In a suit for separate maintenance, evidence held, sufficient to show a common law marriage per verba, de prmenti.</p> <p>4. -Where the words claimed to amount to a contract of marriage per verba de pransenH are ambiguous, the intent of the parties may be examined into, as in cases of other contracts, and, if the subsequent conduct clearly indicates that they intended matrimony, they are legally husband and wife.</p> <p>5. Where a man and woman have cohabited ostensibly as husband and wife, and are treated by their Mends and relations as such, the law will presume that they have been legally married.</p> <p>6. The presumption of marriage arising from cohabitation and repute is rebuttable, and, where it is shown that the cohabitation began meretriciously, or at a time when one party could not marry, the burden is upon the person claiming the marriage to show it independent of the presumption.</p> <p>7. AVhere the parties had had secret intercourse without cohabitation, but thereafter began to cohabit openly as husband and wife, and sueb cohabitation continued unbroken for a number of years, the change in the maimer of living, especially when accompanied by a marriage agreement, overcomes the presumption that the original meretricious relations continued.</p> <p>8. ’In an action for separate maintenance, where complainant relied) upon a common law marriage, evidence held not to show that complainant had not been faithful to the defendant during the time they had cohabited as husband and wife, and therefore not to rebut the presumption of marriage arising from cohabitation.</p>

<p>Evidence in a suit by a wife against her husband for a divorce on the ground of desertion, held to indicate an acquiescence on her part in their living apart until he could earn enough to support her.</p>

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

<p>1. It was immaterial that a petition for the probate of a will did not mention the contestants amongst the heirs and next of kin, although their existence was known, as the surrogate is not required to give notice of the application to the heirs and next of kin, who must protect their own interests, and may still appeal to the orphans court after the ten days for filing caveats.</p> <p>2. The proponent of a will who occupied a position of trust and confidence towards the testatrix by reason of being her adviser and attorney, and who had opportunity to exert influence over testatrix, who lived in his house, had the burden of showing that he did not procure the making of the will under which he was the chief beneficiary by undue influence.</p> <p>3. The preponderance of the evidence on the probate of a will held to show its due execution at the time and place alleged.</p> <p>4. Evidence on the probate of a will held suflicient to overcome the presumption of undue influence on the part of the proponent, who occupied a position of trust and confidence towards the testatrix, with opportunity to exert influence over her, and was the chief beneficiary.</p>

<p>1. Evidence held not to show that the document sought to be probated was intended by decedent to be testamentary.</p> <p>2. If there is no attestation clause to an alleged will reciting compliance with the statutory requirements, the burden of proving compliance therewith is on proponent.</p> <p>8. Where two of three witnesses to an alleged will did not know that the instrument ivas intended as a will, there ivas not a compliance with the statute as to publication.</p>

<p>1. Upon the dissolution of a copartnership agreement between the complainant and defendant, and another, who were physicians practicing their profession in the city of Atlantic City, because of continued violations by the defendant of certain provisions contained in the copartnership agreement, the complainant is entitled to the enforcement against the defendant of a restrictive covenant, contained in that agreement, by the terms of which the defendant hound himself, in case the partnership was terminated because of violations of the contract by him, to refrain from practicing his profession in said city for a period of three years thereafter.</p> <p>2. The damages arising from the breach of such a covenant would be continuing, accruing from day to day, and it would be impossible to ascertain the money loss sustained by the complainant therefrom with anything approaching accuracy. A suit at law therefor would afford no adequate remedy, and when this is the case the court of chancery should enforce the covenant by granting an injunction to prevent the breach of it.</p>

<p>1. Contempts are of two sorts, civil and criminal; in a civil contempt the proceeding is a remedial step in a cause inter pwrtes and if the contemnor be imprisoned, it is only until he performs some required act beneficial to the other party; criminal contempts are offences against organized society and are punishable as such in a proceeding at law which, while it may. be administered by the court in which the contumacious conduct occurred, is no part of the private litigation therein.</p> <p>2. A proceeding instituted in the court of chancery for the purpose of having that court adjudge whether or not the defendant in a cause pending therein was guilty of a contemptuous violation of • an injunction issued by it is a proceeding at law in a criminal contempt in which the defendant is entitled to all of the substantial rights of a person accused of crime that are consistent with the summary nature of the proceeding and the processes of the tribunal in which it is administered, one of which rights is that the incriminating testimony shall be given by witnesses subject to cross-examination and impeachment under the ordinary rules of evidence.</p> <p>3. A punitive order of the court of chancery in such a proceeding made upon ex parte affidavits will be set aside.</p> <p>4. Ex parte affidavits to which the rules of evidence are not applied are not juridical evidence and hence are incapable of supporting a judicial decision in a proceeding at law. Qucere: Whether the defendant in a criminal contempt proceeding may expressly or by acquiescence waive his right to be convicted by the testimony of witnesses subject to his cross-examination.</p>

<p>1. The basis of suits to enjoin the use of the complainant’s name is the damage or possibility of damage to the complainant, not the damage or probability of damage to the public; fraudulent conduct on the part of the defendant is a necessary element, but fraudulent conduct without damage to the complainant does not suffice.</p> <p>2. Since it is the complainant who is to be protected in suits to enjoin the use of his name, he must’ come into the court with clean hands.</p> <p>3. Where the complainant and defendant agreed that an encyclopedia should be represented to the public as the work of the complainant in order to avail themselves of its reputation to attract subscribers for the book, the complainant cannot be heard to complain of conduct in which it'joined and by which it profited.</p> <p>4. Where complainant and defendant agreed that an encyclopedia should be represented to the public as the work of the complainant in order to avail themselves of its reputation to attract subscribers for the book, and subsequently the complainant terminated the agreement and sought to enjoin the use of its name, the court denied relief because the complainant did not come into court with clean hands although the point was not raised by the defendants in their answer.</p> <p>5. Where a complainant’s conduct has been such that he does not come into court with clean hands, the disqualification applies only to the particular matter or transaction with which the wrongful conduct has to do, and he may have relief in other respects.</p>

<p>1. Where the court is evenly divided there is no decision of the legal question discussed; the result depends upon the fact that the question put is whether the judgment shall be reversed.</p> <p>2. A riparian grant by the state can have no more effect upon the title to land not owned by the átate than a deed by any person other than the real owner.</p> <p>3. Land bounded by the ocean was conveyed in 1856; subsequently the ocean encroached on the beach and the land in dispute was under water; while that condition existed, a grant was made by the riparian commissioners to the defendant’s predecessor in title; subsequently the ocean receded and the former owners made grants, under which alone the plaintiffs claimed land embraced in the state’s riparian grant; no claim was made by complainants as riparian owner to the land in question by accretion. — Held, that complainants could not sustain their claim to the land under the grants from the former owners as against the state’s riparian grant.</p>

<p>On appeal from a decree of tlie court of chancery made by the chancellor, whose opinion is reported in SB N. J. Eq. B7.</p>

<p>The allowance of costs and counsel fees out of a trust fund is as a rule limited to suits instituted by executors or trustees for the construction of a will, and suits by claimants to such fund in which the claims are successful.</p>

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

On petition of Virginia Lee Welch against Henry Bainbridgv Baker. The order appealed from directed that respondent during the year 1915, and succeeding summers, have custody of her child for one-half of the summer vacation during which the regular sessions of the school are closed, the first half being-that division to which the petitioner is entitled, and the second half that to which the defendant shall be entitled.

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

<p>On appeal of defendant Charles R. Lane from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 82 N. J. Eq. 127.</p>

On appeal of First National Bank of the Town of Union from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. 4&.

<p>On appeal from a decree of the court of chancery advised by Yice- Oh ancell or Learning.</p>

<p>On appeal of Martin S. Paine from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. Jj®.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 82.N. J. Fq. 286.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 81 N. J. Eq. m.</p>

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

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor' Stevens, whose opinion is reported in 8B N. J. Eg. 89.</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 Baches, whose opinion is reported in 81 N. J. Eq. 459.</p>

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

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 82 N. J. Eq. 192.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Baekes, whose opinion is reported in 80 N. J. Fq. 195.</p>

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

<p>On appeal from a decree of the court of chancery made bjr •Chancellor Walker, whose opinion is reported ante p. 3.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chanc-ellor Stevens.</p>

<p>, On appeal from a decree of the court of chancery advised by Advisory Master Charles H. Hartshorne.</p>

<p>On appeal from a decree of the corirt of chancery advised by Vice-Chancellor Learning, whose opinion is reported in SI jV. JEcp B44-</p>

<p>Note. — -Printed to correct the reporter's mistake as to the identity of the order affirmed and as to the vice-chancellor’s opinion referred to, in the same case reported in 88 A7. J. Eg. 367. — Rep.</p>

<p>1. J. M. devised certain land to O. C. for life and after her death to the lawful issue of her body begotten, her surviving, in equal shares as tenants in common in. fee-simple; but in case she should die without such lawful issue surviving, then to M. and P. as tenants in common, or to the survivors of them. — Held, (1) O. C. took an estate for life, with a contingent remainder to her issue in esse at the time of her death or to M. and P. or the survivor of them for want of such issue alive at the determination of the particular estate; (2) the remainder is contingent as to the person or persons who shall take at the death of the life tenant, and, therefore, the rule in Shelley’s Ease, which is a rule of law and not of construction, does not apply.</p> <p>2. C. 0-, the life tenant, and her surviving children, executed two-mortgages upon the devised premises. M. M. S., one of the children, died -leaving a child, B. B. S. On foreclosure of the two mortgages mentioned (witl} a prior one not here in dispute) B. B. S., who was made a defendant, moved to strike out of the bill the prayer that she may be decreed to pay the complainant’s mortgages or be foreclosed of her equity of redemption in the mortgaged premises. — Held, further, the motion is tantamount to a demurrer, and a demurrer will lie to the prayer of a bill in chancery. That part of the prayer of the bill in this cause to which objection is made must be struck out, because; As B. B. S.’s mother had only a contingent remainder (with others) at her death, which became extinguished, as to her (mother’s) interest, by the happening of that event, she (B. B. S.) inherited nothing from her mother; and, as her great-grandfather by his will created that remainder, which has as yet become a vested remainder in nobody, she has not taken as a purchaser from him; although she may, and will, yet do so, if she survives her grandmother, the life tenant, because she is one of the issue of her grandmother’s body begotten, according to the legal meaning of that term, which comprehends issue ad infinitum and not that of the body of an immediate ancestor only.</p> <p>3. ' -Neither M. M. S., daughter of the life tenant, nor any of her ('life tenant’s) other children, were empowered by section 19 of the Conveyancing act to dispose of, or in any manner charge, the land described in the bill, they being within the proviso that no person shall be empowered to dispose of (mortgage) anj' contingent estate where the contingency is as to the person in whom the estate may vest.</p>

<p>1. One may not palm off his goods as the goods of a rival and thereby cheat the purchasing public and injure the business of the rival.</p> <p>2. A manufacturer of bakery products, -which adopted as its trade mark a seal known in the trade as “In-er-seal,” which seal was placed on each end of paper cartons containing the products, and had become an identifying mark of its products, thereby acquired the right to the exclusive use of the seal, and a rival manufacturer would be restrained from subsequently adopting a seal of similar general appearance, and similarly placed on its cartons, so as to mislead the purchasing public.</p> <p>3. A manufacturer of bakery products, which adopted the word “Uneeda” displayed on paper cartons containing its product and so advertised its business as to make the name identify its product, thereby acquired the exclusive use of the word as applied to its product, and a rival could not use on its product the word “Abetta” displayed on its cartons and thereby confuse the purchasing public.</p> <p>4. A manufacturer suing to restrain unfair competition need not show intentional fraud, or that anyone had been actually deceived, but need only show that the marks, words, or other special arrangement of a rival manufacturer are such as will likely mislead persons in the ordinary course of purchasing goods and inducing them to suppose that they are purchasing the article of the manufacturer.</p> <p>5. A paper carton constructed by superimposing on the cardboard car- » ton blank a sheet of waxed paper of the size and shape of the blank, so that, when folded, it will form a unit box and possess the capacity of preserving the contents equally with hermetically sealed tin boxes and bundle packages, may not be exclusively appropriated by a manufacturer as devised to mark and indicate its product, but a rival manufacturer may use similar cartons and bundle packages without being guilty of unfair competition.</p> <p>6. Where a manufacturer of bakery products has adopted for its products paper cartons of various sizes and trade marks placed on each end thereof and trade names, such as “Uneeda Biscuit,” “Uneeda Milk Biscuit,” “Oysterettes.” “Marshmallow Dainties,” “Cocoanut Dainties,” “Oatmeal Crackers,” &c., a rival manufacturer will be restrained from adopting any seal on its cartons or trade names which are calculated to deceive the purchasing public, but it will not be restrained from selling such cartons with their asserted trade mark thereon so differentiated in general appearance and application from the manufacturer’s trade mark that it could not deceive the ordinary purchaser, nor will the rival manufacturer be restrained from selling cartons of the size, weight, and shape of the manufacturer’s packages, nor from using the representative colors as wrappers for such packages, provided the packages are so differentiated in general appearance from the manufacturer’s packages that they will not deceive the ultimate purchaser.</p>

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

<p>1. It is a contempt for a solicitor to insert in a decree, after it has been signed by the chancellor, any provisions, though they are immaterial.</p> <p>2. Where a solicitor inserted in a decree, after it had been signed by the vice-chancellor, some rather immaterial provisions similar to others which. had been stricken out, and informed the vice-chancellor of his action, stating that he presumed it would meet with his approval, the solicitor, while guilty of contempt, does not merit disbarment, his good faith tending to excuse and purge his offence.</p>

<p>1. .In a suit to foreclose a mortgage where a person is made a party defendant because of holding a judgment against the mortgagor, which judgment is by the bill alleged to be a lien upon the mortgaged premises, such judgment-creditor-defendant has no standing to move to strike out parts of answers filed, one by a married woman co-defendant without her husband joining her therein, and another by other co-defendants, both setting up that the judgment is pretended, was improvidently recovered and entered, is not a lien upon the mortgagor’s property, is insufficient and raises no ''defence, and amounts to a collateral attack upon the judgment.</p> <p>2. While formerly when a married woman put in an answer separately from and without her husband joining her, and without leave of the court therefor, such irregularity could only be objected to by the complainant to whose bill the answer was responsive. A co-defendant having no interest whatever in the question could not make the objection ; hut now, under the provisions of rule 219 of this court a married woman, party defendant in any cause, may appear by solicitor and file an answer, plea, demurrer or other pleading, in her own name, separately from her husband, and without any special order therefor.</p> <p>3. The test as to whether a party to a chancery suit may demur to a bill of complaint, or move to strike out an answer in the nature of a cross-bill, or put in exceptions to an answer, must be, whether or not, in the alternative, the party objecting could answer the pleading.</p> <p>4. To an answer in the nature of a cross-bill, the complainant in the original bill, or a co-defendant against whom it is preferred, as the case may be, is required to answer by a special replication, or move to strike out in lieu of demurring.</p> <p>5. The doctrine that a judgment pronounced by a court of competent jurisdiction is final and conclusive between the parties to it with respect to all matters put in issue in the case in which it is recovered, and must stand and be so treated everywhere, unless and until it is set aside by the court which pronounced it, or is reversed in direct appellate proceeding, does not operate to prevent proceedings in equity to set aside a judgment as fraudulent or collusive.</p> <p>6. Insufficiency means that a portion of the bill of complaint has not been answered, to which portion the complainant is entitled to an answer, and does not mean that the answer is insufficient in the sense that it presents no equitable defence.</p>

<p>1, By an act of the legislature (P. L. 1899 p. 536) entitled “An act to prevent the pollution of the waters of this state by the establishment of a state sewerage commission, and authorizing the creation of sewerage districts and district sewerage boards, and prescribing, defining and regulating the powers .and duties of such commission and such boards,” the state sewerage commission was constituted; and, by a supplement thereto (P. B. 1908 p. 605) reciting the title of the original act, all the' powers and duties theretofore vested in and executed by the state sewerage commission were vested in, and were to be executed by the board of health of the State of New Jersey. Upon a bill filed by the board of health of the State of New Jersey to enjoin the town of Phillips-burg from polluting the waters of the Delaware river by permitting sewage and other polluting matter to flow therein from its sewers and drains — Held, that such legislative transfer of jurisdiction from the state sewerage commission to the state board of health is efficacious, although not expressed in the title of the supplement.</p> <p>2. While the constitution, article 4, section 7, plaoitum' 4, provides that “every law shall embrace but one object, and that shall be expressed in the title,” the meaning is that the.leading subject of a statute should be fairly expressed in a statute; but the means or instruments by which the general purpose is to be attained, or matters merely incidental to it, are not a necessary part of the title, the words “subject” and “object” with regard to this constitutional provision having come to be regarded as synonymous.</p> <p>3. If it is only necessary to express the general object of a statute in its title, and in expressing it, it is not necessary to express' the means or method of attaining that object, or name the instrumentality for carrying it out, then, even if such minor or incidental matters are included in the title of a given statute, they cannot operate to deprive the legislature of its power to amend a given act in reference to those minor and incidental matters, through amendments of, and supplements to, the original act, appropriately reciting the title of that act.</p> <p>4. The supplement of 1907 (P. L. Í907 p. 360), providing that “ ‘waters of this state,’ as used in this act and the act to which this is a supplement, shall include the ocean and its estuaries, all springs, streams and bodies of surface or ground water, whether natural or artificial, within the boundaries of this state or subject to its jurisdiction,” extends to, and comprehends, the Delaware river at the town of Phillips-burg.</p> <p>5. While the title to the bed of the Delaware river above tidewater is in the private riparian owners, subject to the paramount public right of user, that use can as well be directed towards purification of the stream as towards control for the purpose of navigation.</p> <p>6. As power to conserve the potable waters of the river Delaware by legislation, enforceable on, in and under the waters flowing within the boundary, and subject to the jurisdiction, of the State of New Jéísey. was not included in the enumeration of rights to be exercised conjointly by the States of New Jersey and Pennsylvania in the compact of 1783 (Comp. Stat. p. 5368), that power, was retained by this state by as clear an implication as though it was, by express language, so reserved in the pact.</p> <p>7. It is no ground for denying an injunction to stop the town of Phillipsburg from discharging its sewage into the Delaware river, that the sewage of the city of Easton in the State of Pennsylvania, and the polluting flow of the Lehigh river in the State of Pennsylvania, are discharged into the same stream in the same locality.</p> <p>8. The authority given originally to the state sewerage commission, but now vested in the state board of health, authorizes the board, if it finds that any of the waters of this state are being polluted in such manner as to cause or threaten injury to any of the inhabitants of this state either in health, comfort or property, to apply to this court for an injunction to prevent violation, or to enforce the provisions of, the act; and, therefore, the injury need not be actual, but only threatened.</p>

<p>Every municipality having a public sewer or system of sewers, drain or system of drains, legally constructed at the date of the passage of “An act to secure the purity of the public supplies of potable waters in this state,” approved March 17th, 1899 (P. L. 1899 p. 73), is, under the first proviso of the first section, exempt from the provisions of the enacting-clause, and, therefore, is exempt from the provision against dumping refuse on the bank of a river, as well as from the provision against discharging sewage into it, — the clearly expressed legislative intention being to exempt such municipalities from all the provisions oi the act.</p>

<p>1. A bequest to trustees to pay the testator’s wife “annually in quarterly payments during her natural life an amount equal to one-half the net income” from his estate, which consisted of 'both real and personal property, was not an “annuity,” which is the bequest of a sum certain and does not even include the gift of the interest of a fixed and certain sum of money.</p> <p>2. Annuities are not generally apportionable.</p> <p>3. A bequest in trust to pay the testator’s wife quarterly during her natural life an amount equal to one-half the net income accruing from his estate, which included both real and personal property, was not a bequest of income payable at fixed times, and the wife’s representatives were entitled to such an apportionment of the income as would have given her so much as accrued from day to day during her life, including interest accruing on mortgages and dividends declared during her life, although not payable until after her death.</p> <p>4. Testator, after specific legacies, devised the entire residue to trustees for investment and to pay out of the balance one-half of the net income to his wife for life, and after her death certain amounts to each of two legatees for life with cross-survivorship, and a certain amount to another legatee for life, such legatees being the wife’s kin, and to pay out of the principal certain amounts to the issue of two of the legatees in contingencies which had not occurred, and out of the remaining one-Half of his income not disposed of directed two annual payments of $2,500 each to a nephew and niece for life, and a payment out of the principal to the issue of such nephew and niece, respectively, of $50,000, with cross-remainders on survivorship, upon contingencies which had not occurred, and gave all the remaining surplus income equally to two sisters during their natural lives, and three-ninths of all the residue to each of them, their heirs and assigns, and one-ninth each to a nephew and two nieces. The payments to legatees other than his sisters amounted to less than the annual income of the estate, leaving a surplus. — Held, that during their joint lives the sisters were equally entitled to the surplus income of the entire estate, after deducting the special legacies, and that until the happening of the contingency requiring the payment out of one-half of the principal of the legacies to the issue of the- nephew and niece or either of them, the principal was to be held as an entire fund.</p>

<p>1. Under P. L. 1903 p. 432 § 59, providing that the purchaser of land at a tax sale may give written notice to all persons interested in the land of their right to redeem, and that unless they do so within two years after the sale, if the notice is served more than sixty days before the end of the term, or otherwise within sixty days after the service of the notice, their right of redemption will be barred, and that, if there shall be no redemption within such term of two years or within the time limited by the notice, the right of redemption shall be barred, to bar the right of ■redemption the statute must be strictly followed.</p> <p>2. Where a purchaser of land at a tax sale, after giving notice to all persons interested to redeem within sixty days, pursuant to P. L. 1903 p. 432 § 59, on an application by a party interested within such period to redeem, requested a delay beyond the sixty days for the purpose of taking up the matter, and thereby induced such party not to attempt to redeem within the statutory period, the purchaser was estopped, as against such party, from using such notice as the basis of a statutory foreclosure of the right to redeem, and, to avail himself of the statutory remedy, was bound to give a new notice.</p> <p>3. A suit to redeem from a tax sale proceeds on the assumption that the defendant has or can acquire an absolute title, and the validity of his title under the sale cannot be attacked.</p>

<p>1. Unless affected by the recording acts, the earlier in time of two assignments of the same mortgage prevails.</p> <p>2. Under Conveyance act (P. L. 1898 p. 690 § 54), providing that instruments which may be recorded under section 21 shall be void and of no effect against subsequent judgment creditors without notice, and against all subsequent Toona fide purchasers and mortgagees not having notice thereof, whose deed or mortgage shall have been first duly recorded, an assignee of a mortgage, to whom the bond and mortgage were not delivered, and who over a year before acted as attorney in a suit in which the interest of the mortgagee was attached in the possession of the holder of a prior unrecorded assignment, was not a Iona fide purchaser without notice.</p> <p>3. Where a mortgagee assigned the mortgage to D., and thereafter made a subsequent assignment to another party, D.’s assignee succeeded to the title and rights of D., though he paid only a small sum for the assignment, and the subsequent assignee was not entitled to redeem on payment of such sum.</p>

<p>1. A complainant who has received less than the relief demanded, or a defendant who has not been accorded the full amount of his set-off or counter-claim, is aggrieved by the judgment, and may sue out a writ of error to review the same, though it is in his favor.</p> <p>2. Where a suit for injunction involved the trial of an issue of title which was determined both by a verdict and finding in favor of defendant, the complainant will not be granted a final decree as against an application by defendant to have the issue of title tried at law.</p>

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

<p>On motion to strike out- for want of equity.</p>

<p>1. Promissory notes of an insolvent corporation are not either accommodation or ultra vires paper, when given partly in consideration of the surrender by a creditor of notes of equal amount by a new corporation, which latter corporation at the same time conveyed to the insolvent corporation all its assets by bill of sale.</p> <p>2. The fact that it was also a part of the consideration that the stock of the new corporation held by the creditor was to be transferred to the purchasing company and made in part the basis for issuing its own stock to an equal amount, and that this new stock of the purchasing company was to be delivered to the creditor as security for the notes of the purchasing company, does not make the paper accommodation paper.</p> <p>3. A claim against an insolvent corporation founded in part upon notes of the new company given to him upon the surrender of the notes of the old company upon the transfer of its assets to the new company, and in part ($400) for notes of that amount given to another creditor and transferred to the. claimant, should be allowed to the full extent of the notes of the old company surrendered to the new company on the transfer.</p> <p>4. The Chattel Mortgage statute (1 Oomp. Btat. p. 463 ¶ 4), requiring “immediate delivery” of the mortgaged chattels, or the “recording” as directed by the act, means “immediate- possession” or “immediate recording,” and where five days elapsed between the execution and the recording of a chattel mortgage — Held, upon the evidence, that such chattel mortgage was not “immediately” recorded as required by the statute, and although as against creditors of the insolvent corporation who became such subsequent to the recording, the chattel mortgage is preferred, it is not a preferred claim against the creditors of the company whose claims arose prior to its recording.</p> <p>5. Under the Chattel Mortgage statute (1 Oomp. Btat. p. 463 ¶ 4) the affidavit must set out “the consideration of said mortgage and as nearly as possible the amount due and to grow due thereon,” and if the execution of a contract in the chattel mortgage referred to was so essential to the validity of the mortgage as to entitle the mortgagee under the statute to the benefit of at least two days delay against the creditors for the purpose of recording it, it would seem that it must be considered as so much a part of the consideration of the mortgage as to entitle them to have it set out in the affidavit, and the failure to set it out is a fatal objection to the validity of the chattel mortgage.</p>

<p>An injunction could not be granted to enjoin separate suits at law, brought by mill owners, whose factories adjoin the Passaic river, for damages for the wrongful abstraction of water from the river by a water company, which suits had no connection with each other, since to do so would violate a fundamental equity rule that distinct and independent causes of action may not be united in one bill.</p>

<p>1. Where a mortgage provided that any person acquiring two thousand five hundred square feet of land covered thereby might at any time tender the money and have the benefit of the clause for release of such portion, such provision constituted a continuing covenant on the part of the mortgagee to release to any purchaser of two thousand five hundred square feet or more the amount so purchased on tendering the proportionate part of the mortgage debt.</p> <p>2. Where suit was instituted to compel specific performance of a mortgagee’s covenant to release parts of the property on tender of a proportionate amount of the mortgage debt, the bill would be regarded as a suit for specific performance and not a bill to redeem, and defendant having answered denying complainant’s right to a release, and been cast, costs would not be awarded to either party.</p>

<p>1. Mere tortious taking and holding of complainant’s real property will not alone afford a ground for injunctive relief, in the absence of threatened irreparable injury.</p> <p>2. Where, in a suit to restrain defendants from destroying or interfering with the plaster surface of a brick wall wholly on complainant’s property, there was no denial of complainant’s title, it was no defence that defendants’ acts with reference to the wall would not be injurious, but would rather be beneficial, and that they were able to respond in damages for injury that might arise from their proposed acts.</p>

<p>1. A restrictive building covenant declaring that no building of any description shall at any time be erected within ten feet of the street line on which the property fronted was broten by the construction of elevated porches inclosed below in a manner to provide basements supplied with windows and doors, and also by the main bodies of approximately half the buildings on the street being extended over the porch roofs in a manner to afford bay windows or rooms within the restricted space.</p> <p>2. A covenantee may not enforce in equity a restrictive building covenant prohibiting erections within ten feet of a street, forming part of a general scheme for the development of a tract of urban property after he has failed to exercise the right for a considerable time, and many buildings have been erected contrary to the provisions of the covenant in the vicinity of the property; the covenantee’s remedy then being limited to an action at law.</p>

<p>1. Where the entire business management of a corporation had been entrusted to A. without limitation, supervision, or restraint by the board of directors, the corporation would be bound by a trust agreement executed by him, executory in character, and operative alone on the business to be transacted under it, by which it was provided that the corporation would hold in trust and separate, for settlement of the account of petitioner, all goods unsold and all currency, open accounts, notes, liens, mortgages, or other values received by the corporation for the goods.</p> <p>2. An agreement executed by the business manager of a corporation agreeing to hold in trust and separate, for settlement of the account of petitioner, all goods unsold, currency, open accounts, and other values received by the corporation fbr the goods, made in good faith, was valid and enforceable as against the corporation’s receiver in insolvency.</p>

<p>1. 3 Oomp. Btat. 1910 p. 38S8 § 81, and p. 381/5 § 91/, providing for the sale of lands of a decedent to pay debts, creates a lien on the land in behalf of a creditor for one year, and thereafter until a bona fide sale of the land has been made by the heir or devisee, the expiration of the year having no effect to increase the estate or interest of the heir or devisee, but merely to protect the title of a bona fide purchaser.</p> <p>2. Since by 2 Oomp. Btat. 1910 p. 2739, an heir or devisee of real property is liable to creditors of his testator or intestate to the extent of the assets received, delay in administration is not a source of substantial injury to the heir.</p> <p>3. Since a creditor of a deceased person has a lien on his real property in the hands of the heir, prior to a sale to a bona fide purchaser for value, the creditor is entitled to enjoin the heir from selling the land to the prejudice of such lien until the orphans court has been afforded an opportunity to enforce a lien by a sale of the land to pay debts in the settlement of the estate, without reference to the creditor’s delay in causing an administration of the estate.</p>

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

<p>On motion for relief after decree.</p>

<p>1. Where certain individuals conceived the idea of establishing a large cemetery, and to carry out the scheme arranged to buy the real estate, procure the consent of the township and state board of health to its establishment, and prepare all the necessary papers and documents to carry the scheme through, they were “promoters,” and, as such, bound to furnish the cemetery corporation with an independent and disinterested board of directors, and to make a full, open, and fair disclosure to such board of all the profits the promoters designed to make out of the scheme.</p> <p>2. Rural Cemetery Association act (1 Comp. Stat. 1910 p. 375 § 10), providing that at least one-half of the proceeds of all sales of cemetery lots shall be appropriated to payment for the lands acquired by the association, until the whole price shall be paid, and the residue thereof applied to the preservation, improvement, and embellishment of the cemetery grounds, &c., and to defray the incidental expenses of the establishment, and that after the payment of the purchase-money and the debts contracted therefor, &c., the proceeds of all future sales shall be devoted to improvement, and to no other purpose or object so long as the embellishment of the cemetery is incomplete, deprived a corporation organized thereunder of the power to divide the proceeds of burial lots into shares, and give to the holders thereof a pro rata lien and claim on the land-purchase fund of the association, composed of at least one-half of the proceeds of the sales of all burial lots on the grounds of the association, &c.</p> <p>3. P. L. 1911 p. 626, supplementing Rural. Oemetery Association act of April 9th, 1875 (Revision 1877, page 102), and providing that any and every contract previously entered into by any cemetery association incorporated thereunder, by the terms of which land has been or was to be purchased by the association, and the price fixed at the amount of not more than half of the proceeds of all sales of lots, all moneys remaining of the other half to be expended for the embellishment of cemeteries, and certificates evidencing interest in such purchase price and proceeds are validated, &c., applied only in cases of purchase in which the purchase price was fixed at an amount not more than one-half of the proceeds of all sales of lots or plots, and did not validate a contract in which sixty per cent, of the proceeds were pledged for the payment of the purchase price.</p> <p>4. P. L. 1913 p. 521 is entitled “An act concerning cemetery corporations and contracts made by them with respect to interests in the proceeds of sales of lots or plots,” section 3 declaring that any agreements or arrangements previously made by any cemetery corporations contained in deeds conveying lands to such associations, &c., and any certificates of interests in proceeds of sales of lots or plots, issued in pursuance thereof, not in contravention of the provisions of the act, are declared valid and affirmed, and section 5 declaring that the act shall take effect immediately, and that, if any portion thereof is invalid, it shall not affect any other portion. — Held, that, though section 3 should be held to be retrospective in operation, the statute should not be held to impair the vested right of complainants to the right to vacate an ultra vires contract dividing the proceeds of the sales of the lots of a cemetery association into shares and transferring the same, which right complainants had at the time of filing their bill for such relief.</p> <p>5. Where promoters of a cemetery corporation had not provided it with an independent board of directors, and had fraudulently induced it to enter into an ultra vires contract for the disposition of the proceeds of sales of lots for cemetery purposes, such contract could not be ratified by a resolution of a subsequent board, nor by the shareholders at a subsequent meeting, especially where it did not appear that prior to such alleged ratification they were informed of all the facts.</p> <p>6. A covenant by a cemetery corporation organized as provided by Rural Oemetery Association act (1 Comp. Stat. 1910 p. 375), obligating the corporation to pay semi-annually, in cash, to a promoter one-tenth of the gross proceeds of the sale, lease, or loan of burial plots having been obtained by the promoter deceiving his own uninterested board of directors, was fraudulent and ultra vires.</p> <p>7. A covenant by a cemetery corporation organized under Rural Oemetery Association act (1 Comp. Stat. 1910 p. 375), binding it, as to a promoter, not to divest itself of the title to any part of its lands, with certain exceptions, without the written consent of the promoter, his heirs, executors and assigns, and in every case to pay one-tenth of the gross proceeds to such promoter, was void as ultra vires and in restraint of alienation.</p> <p>8. Where a cemetery corporation covenanted with the grantor of its land, who was its chief promoter, that fifteen acres should be set aside to provide a fund for perpetual care of the cemetery grounds, the land to be selected by the grantor and three other members of the board of trustees to be appointed by him, he having died without making any appointment or selection of plots, the covenant became obsolete.</p> <p>9. A cemetery corporation, though without express power to borrow money to meet necessary expenses of its activities, has implied power to do so, and certificates of indebtedness and notes executed for money actually loaned to and received by the corporation constitute valid evidences of indebtedness against it.</p>

<p>1. Complainant was incorporated under the General Corporation act (P. L. 1849 p. 800), January 23d, 1873, its franchise to terminate January 1st, 1900. In'1874 the legislature passed a special act (P. L. 1814 p. 1011) to extend and amend its corporate powers and privileges, section 11 of which provided that the corporation should not, from the date of the act, be bound or affected by the act of 1849, under which it was incorporated, or its supplements, except as prescribed by the act of 1874.- — Meld, that complainant’s corporate existence under the act of 1874 continued indefinitely, and did not therefore terminate in accordance with its original articles.</p> <p>2. Act March 17th, 1874 (P. L. 1814 P- 1011), is entitled “An act to extend, amend, and increase the corporate powers and privileges of the Celluloid Harness Trimming Company,” and section 11 of the act provides that the company shall not, from the date of the approval of the act, be bound, controlled, or in anywise affected by the General Corporation act of 1849 (P. L. 1849 p. 800), under which it was organized, or any provisions thereof not incorporated in the act of 1874. — Meld, that such act is not invalid as containing an object not expressed in its title.</p> <p>3. Where the date of the alleged expiration of a corporation’s charter appeared from the public records, the fact that its corporate life had expired at the time it brought suit against defendant for unlawful competition could not be said to constitute newly-discovered evidence sufficient to sustain a bill to review a judgment against defendant.</p>

<p>1. In a suit to set aside a conveyance of church property, evidence held to require a finding that the grantor corporation and its adherents were affiliated with the Presbyterian Church of North America, and was not an independent body without ecclesiastical affiliation.</p> <p>2. Though one or any number of members of a church organization may secede at will, no number, however great the majority, may secede and take with them the church property to a new affiliation, so long as there remains a faction which abides by the doctrines and rules of the church government which the united body professed when the property was acquired, in which case the property can be disposed of only in accordance with the method prescribed by the judicatory of the original body.</p>

<p>1. In a creditor’s suit in aid of an attachment to recover property, the title to which was in the name of the debtor’s brother, evidence held to show that the purchase price of the property, the amount of a mortgage subject to which it was purchased, and the cost of improvements on the property, were paid with the debtor’s money, though part of the payments were made by means of checks drawn on accounts standing in the brother’s name, and hence the debtor, by virtue of a resulting trust, was the sole beneficial owner of the property.</p> <p>2. Evidence held sufficient to show that an assignment of a mortgage by the debtor to his brother was with intent to hinder, delay and defraud his creditors.</p>

<p>Complainants, in a suit against an insurance company, were not entitled to reformation of an insurance policy so as to make it payable to themselves as executors instead of a third party to whom it was made payable, where there was no mutual mistake upon the part of the parties to the suit and no fraud upon the part of the insurance company.</p>

<p>Evidence held to require a finding that complainant was a stockholder in a certain corporation as distinguished from a holder of the shares thereof as collateral to a loan, and was entitled to maintain a bill against the corporation’s treasurer for an accounting.</p>

<p>1. Where a contract by a water company to supply water to the inhabitants of a town provided that the town might purchase the works and “at any and all times” might inspect the books and vouchers of the company, the town was entitled to exercise such right of inspection, though it did not exercise its option to purchase; nor was it a valid objection that the inspection privilege was not mutual.</p> <p>2. Where a water company’s contract with a town provided that the town at any and all times should have the right to inspect the water company’s books and papers, the town was not limited to mandamus to enforce such right, but properly sought such relief by suit in equity.</p>

<p>On pleadings and proofs.</p>

<p>1. A monument erected by the state on land owned by a county, though firmly imbedded in the ground and intended to be a permanent structure, retains its independence of the realty and its character as a removable fixture, and title thereto does not pass to the county; an agreement being implied from the county’s consent to its erection that it was to remain personal property.</p> <p>2. A county, by contributing the land for a monument erected by the state in commemoration of a battle, ceded the use of the land to the state, and the state acquired an easement to endure as long as the land should be used for the purpose to which it was dedicated.</p> <p>3. Under P. L. 1905 p. 168, providing for the erection of a monument, and giving its care and supervision to the board of chosen freeholders of the county of Gloucester, and Joint Resolution No. 5 (P. L. 1909 p.-51/9), authorizing a patriotic society to place upon such monument inscriptions explanatory of the battle in commemoration of which the monument was erected — Held, such society, in making room for the tablets bearing such inscriptions, had power to remove a tablet officiously put on the monument by the commission which erected it.</p> <p>4. If the inscription on one or more of the tablets placed on a monument erected by the state pursuant to Joint Resolution No. 5 (P. L. 1909 p. 51/9) violated the law, the power to correct it was a prerogative of the state to be effectuated through proper channels, and the board of chosen freeholders of Gloucester county, entrusted by statute with the care and supervision of such monument, had no right to forcibly remove the tablet.</p>

<p>1. A tenant of farm land for a term, certain or uncertain, may after the expiration of his term enter on the premises and cut and carry away all the grain sown but not ripe when his term expired.</p> <p>2. A sale under decree of partition of farm land in possession of a tenant in common under an agreement with his co-tenants, whereby he should have possession until a sale, passes to the purchaser the growing crops unless specially reserved, but the tenant has an equity in the proceeds for the value of the crops.</p> <p>3. Where, in partition of a farm in possession of a tenant in common with the consent of the co-tenants, an order directing the reference master to report the value of the tenant’s interest, by reason of his ownership of the growing crops, was entered by the solicitor of the complainant with the consent of the tenant’s attorneys, the parties understood that the crops should not be reserved from the sale, so that the tenant was entitled to an equity in the proceeds for the value of the crops.</p>

<p>1. The right to enforce a building restriction, incorporated in all the deeds given by the owner, who was improving and developing a tract according to a general building scheme, inures to each grantee as members of a class, and they may join in a suit to enjoin a breach by other grantees of the covenant, the wrong being common to them all.</p> <p>2. An objection for misjoinder of parties, first made on final hearing, will be disregarded, where no injustice will be done the parties by the decree.</p> <p>3. Where an owner, improving and developing a tract pursuant to a general building scheme, executed deeds of parcels containing building restrictions — Held, that the restrictive covenants were made for the benefit, not of the grantor alone, but of all who, as purchasers, participated in the project, and they could sue to restrain a breach thereof, though the deeds stipulated that the grantee covenanted with the grantor not to violate the restrictions.</p> <p>4. A building restriction provided that no building shall be erected within twelve feet of-the lot line facing the street or within four feet of the side lines of the lot, embodied in all deeds of lots of a parcel improved and developed pursuant to a general building scheme — Held, that the side line of a corner lot is a “line facing the street,” and the erection of a building nearer than twelve feet from this side line is a violation of the covenant. Also held, that facing the building on the side line, not within the restricted area, is not a violation of the covenant.</p> <p>5. Where the right to enforce a building restriction is doubtful, equity will deny injunctive relief.'</p>

<p>1. Where an electric company wrongfully erected massive poles in a street in order to carry a high-tension transmission system, the trespass was permanent, and constituted an injury to the reversion for which an action would lie.</p> <p>. 2. Query: Has an electric light company the right to suspend wires for private lighting purposes in a highway over the highway land of an abutting owner, without the owner’s consent?</p>

<p>1. Township act March 24th, 1899 (P. L. 1899 p. 399 § 67), provides-that a township committee may provide for lighting the streets and public places of the township, and may contract with any person or private corporation for a supply of light for public use in the township. — Held, that the power to light the streets includes the power to use the prevailing and approved methods of illuminating by electricity, which implies the right to employ the instruments required to effectuate the object, including the right to erect poles and wires in the streets for public lighting without the consent of abutting owners.</p> <p>2. Where an electric company was under contract to light the streets of a -township, it was authorized under its franchise to construct and maintain in the streets poles and wires of sufficient size to enable it to-perform its contract, but it had no authority, as against abutting property owners, to install and maintain in the streets poles of much greater-size than would be required to sustain its wires necessary for its public service contract, in order to maintain a high-tension transmission system for the sale of electricity for private use.</p>

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

<p>1. In a husband’s suit for divorce, evidence as to the circumstances surrounding the separation of the parties held to show that the wife did not desert the husband without his consent.</p> <p>2. On a wife’s petition to open a decree of divorce in favor of the husband, evidence in support of her contention that she failed to defend the suit because of her belief, induced by messages from the husband that the suit would be withdrawn — Held, to show surprise, entitling her to have the decree set aside in order that she might defend.</p> <p>3. A degree of divorce, obtained by a husband by false testimony in a suit which the wife failed to defend, will be vacated on the wife’s application, irrespective of the wife’s excuse for her default, as the state was an interested party to the suit, and its interests had been imposed upon by the conduct of the husband, requiring that its rights be vindicated.</p>

<p>1. The primary direction of the will to the trustee on the death of the equitable life-right holder, to pay over and convey the remainder to H. and A., in equal portions, being a distinct and positive gift, absolute in terms, and unconditional that either be then living, creates a vested estate; it enabling them at any time the life estate becomes vacant, which is a certainty, to enjoy the gift, and giving a present right of future enjoyment; the only uncertainty being as to whether they will ever actually enjoy it.</p> <p>2. Postponement of time of payment, being for the single purpose of allowing the life-right holder to enjoy the estate, does not make the remainder contingent.</p> <p>3. The vested gift in remainder to H. and A. is not divested as to H., by the further conditional direction of the will to turn over the corpus of the estate, on the death of the life tenant to A. and the issue of H. if A. survives, and H. predeceases, the life tenant, where H. leaves no issue, though predeceasing, while A. survives, the' life tenant.</p> <p>4. If a devise be made to A., to be divested on a given event in favor of persons unborn or unascertained, it will not be affected by the happening of the event described, unless also the objects of the substituted gift come in esse and answer the qualification which the testator has annexed thereto.</p> <p>5. The naked power of sale given by a will to the trustee not being exercised till after death of a vested remainderman, her share of the real estate passed to her heir.</p>

<p>1. In a suit to restrain a railroad company from laying a track across a much-traveled highway in addition to two tracks already laid and in operation, where no relief was asked against the existing tracks, an injunction would be denied, though travel on the highway was impeded by the existing tracks contrary to the charter of the railroad company’s lessor, act January 29th, 1835 (P. L. 1835 p. 25), and General Railroad act (S Comp. Stat. 1910 p. 4231 § 26), unless the additional track would further impede such travel.</p> <p>2. In a suit to enjoin the laying of an additional railroad track across a much-traveled highway across which defendant was operating two tracks upon which about two hundred and fifty trains passed every twenty-four hours, evidence held to show that the additional track would not increase the dangers of the crossing or add to the congestion of traffic thereat, but that, on the contrary, it would relieve such congestion.</p> <p>3. In a suit to enjoin a railroad company from laying an additional track across a much-traveled highway, or, in the alternative, for a decree fixing the mode and manner of the construction and laying of such track for the proper protection and safety of travelers, where there was no prayer for relief with respect to the existing tracks, and it appeared that it was not feasible to elevate or depress the additional track or carry the highway across it alone, and it appeared that the company was employing safeguards at the crossing conforming to the best modern requirements which were not criticised in any manner, and that it proposed to install the same safeguards with respect to the additional track, no relief could be granted under the alternative prayer.</p>

<p>1. A contract in writing for the sale of land which does not disclose the name of the vendor as required by the fifth section of the statute of frauds (2 Comp. Stat. p. 2612), will not be decreed to be specifically performed.</p> <p>2. Where the memorandum of the contract for the sale of land is signed “Clarence T. Van Deren, Agent.” the admission of oral evidence to make known the name of the principal would infringe the statute.</p> <p>3. Where the bill for specific performance prays for “such other and further relief, by way of correction or addition thereto or change in said memorandum as aforesaid as the nature of the case may require,” &c., such relief cannot be afforded for two reasons — first, there is no allegation in the bill which justifies any such prayer, and secondly, this court cannot first reform and then specifically enforce the instrument.</p>

<p>A deed contained the restrictions: “That the party of the second part, their heirs and assigns, shall not at any time previous to September 1st, 1903, erect, &c., nor cause any building other than a store or dwelling having a stone or brick foundation, and having at least two stories above such foundation, which building shall not be used for any other purpose than as a store or dwelling within the time limited; that no building shall be erected nearer than five feet to the street line of West Side avenue. No two-story clothes poles shall be erected on the said property. It is expressly agreed that no wines, beers nor liquors of any kind shall be sold or manufactured upon the said premises.” Upon a bill to restrain the leasing or using or permitting to be used said premises for the sale, &c., of wines, beers or liquors — Held, that the time limitation applies to all the restrictions, and is not confined to two of them only, and that all became inoperative after September 1st, 1903.</p>

<p>Evidence of extreme cruelty held insufficient in a wife’s suit for divorce a mensa el thoro on that ground, on application for alimony pendente Ute and counsel fee.</p>

<p>1. S. presented a petition for the appointment of an administrator ad prosequendum, on which an order was entered appointing the clerk in chancery as such administrator, the petition and order being delivered to S. for filing. He having failed to file the same until after he learned that an administratrix had been appointed for the decedent in the orphans court, and that an order of revival would not he made until the order of the ordinary appointing the administrator ad prosequendum in the prerogative court had been vacated, S. stated that he had destroyed the petition and order without filing them. — Held, that the order could only be nullified by vacation by the court granting it, and its destruction constituted a contempt.</p> <p>2. A judge may destroy an order which he has signed, before it is filed, with the consent of the party obtaining it, treating it as inchoate and not consummate until made a matter of record, but an officer of the court has no right to destroy an order which he has obtained, out of the presence of the court and without its consent, though it had not been filed.</p> <p>' 3. Where a proctor, having obtained an order from the court, sought to vacate it by destroying the petition and order before it had been filed, his lack of bad motive or intent to commit a contempt in so doing was sufficient to mitigate, but not to excuse, the offence.</p>

<p>1, Udder section 97 of the Orphans Court act (Oomp. Stat. p. 881fl), upon the application of a judgment creditor to the orphans court to order a sale of the decedent’s real estate to pay the judgment, the judgment creditor cannot he delayed in her right to the order by showing that she is the surviving executrix of the will of another testator whose estate is indebted to the estate of the debtor’s testator in a sum more than sufficient to satisfy said judgment, and that if this indebtedness of the judgment debtor’s testator were paid to her executrix, she would then have in hand sufficient personal property to pay such judgment.</p> <p>2. The circumstances that both parties are officials of the court, and represent different estates and are both subject to the orders of the court, and that it is in the -interest of both estates that litigation should be avoided and expenses thereby saved, did not make it the duty and the right of the orphans court to grant an order against the judgment creditor as executrix of the estate of one of the decedents to proceed and settle the same, and to sell the real estate and thereby avoid further litigation.</p> <p>3. Our statutes confer no authority on the orphans court to try disputed claims except in cases of insolvent estates.</p>

<p>Under Orphans Court act (P. L. 1898 p. 724 § 27), providing that administration on an intestate’s estate must be granted to the next of kin, the court has no discretion but to grant the application of one who is next of kin to the intestate, unless personally disqualified, and the fact that the estate is insolvent, and that the applicant, a brother, lacks the necessary business qualifications to settle it in order to get the best financial results, and that many years before he had been intemperate, is insufiieient to justify the appointment of another not of kin to the deceased. .</p>

<p>Orphans Court act (P. L. 1808 p. 724 § 37) provides that if any person die intestate, or if the executor renounces, then administration shall be granted to the widow or next of kin, or to some of them, otherwise to such other person as will accept the same. — Held, that, where decedent died leaving a widow and two minor children, and the widow renounced her right to administration, decedent’s mother, though of kin, was not “next of kin,” which means one entitled to distribution, and she was not entitled to administration as against a stranger nominated by the widow.</p>

<p>On appeal from the Union county orphans court.</p>

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

<p>1. A tenant in common, who has been disseized of a part of the tract held in cotenancy, is not entitled to partition as against the disseizor.</p> <p>2. The right to a partition of lands can only be exercised as between joint tenants or tenants in common.</p> <p>S. The conveyance of an absolute estate in fee-simple, by a tenant in common, of a part of the land held in common, without the consent or. knowledge of his cotenant, will not affect, much less destroy, the right of the cotenant to have a partition of the whole tract; but, in the exercise of that right, the partition will be made in such a way as to protect, so far as possible, the interests of-the grantee in the part of the land so conveyed to him.</p>

<p>A trustee received as part of the trust fund stocks and bonds of corporations in which the testator had invested in his lifetime, which were supposed to be of the highest class; subsequently they depreciated at a time of financial depression; another corporation to which the properties had been leased became insolvent; the court directed the receiver to borrow money on receiver’s certificates to pay the rent, and it was paid; later there was a default, but there was then no market for the securities; quotations were merely nominal and of a speculative character; the securities were unsalable. — Held, that since the good faith of the trustee was conceded, it had under the special facts of the case exercised reasonable discretion and was not liable for the loss.</p>

<p>1. A corporation borrowed of five of its seven directors and pledged its own stock as collateral, giving collateral notes in the ordinary form, authorizing a sale in default of payment at maturity; there was default . in payment, but nothing further was done; there was no demand for payment, no sale, no foreclosure, no notice to redeem. The stock became very valuable and upon liquidation of tjie company, much more was realized than sufficed to pay the notes. — Held, that a stockholder had the right to insist upon the redemption of the stock by paying the debt and interest and upon- the return of the overplus to the treasury of the corporation.</p> <p>2. Where five out of seven directors of a corporation held stock as a pledge for money loaned the corporation, and it was claimed that the right to redeem had been lost by laches — Held, that there was no laches as long as the pledgor had no opportunity to act, and that as the corporation was always in the control of the pledgees, the pledgor never had a chance to redeem, and there was no laches.</p>

<p>1. The authority of an agent or officer of a corporation to do certain acts in behalf of his principal may be inferred from the continuance of the acts themselves over such a period of time, and the doing of them in such a manner, that the principal would naturally have become cognizant of them and would have forbidden them if unauthorized.</p> <p>2. On the facts of this case, as recited in the opinion, the secretary of the complainant company is deemed to have been authorized by the company to accept the usurious payments in its behalf. •</p>

<p>1. The record of an assignment of mortgage of real estate is constructive notice to the mortgagor of such assignment.</p> <p>2. The habitual payment of interest on a mortgage to a person other than the mortgagee, who in turn paid it to the mortgagee, will not authorize the payment of principal of such mortgage to such other person.</p> <p>3. The execution by the mortgagee of a release of part of the mortgaged premises after the malting of such unauthorized payment, does not amount to a ratification of its receipt when it does not appear that the mortgagee received any of the money or knew of the payment.</p> <p>4. The making of the payments having come to the knowledge of the mortgagee after the death of the person that received them, and a dispute having arisen between mortgagor and mortgagee as to which should make claim against the estate, and the mortgagor finally refusing so to do, — Held, that the action of the mortgagee in filing a claim to save its total loss to all parties amounted neither to an estoppel of the mortgagee to claim the full amount of the mortgage nor to a ratification of the act of the deceased in receiving the money.</p>

<p>1. In a suit for specific performance, to enforce by way of injunction, a covenant for maintaining certain farm crossing's constituting rights of way over the defendant railroad company’s lands, as claimed by the complainant, and which the bill of complaint alleges passed to the complainant by conveyance from the original covenantees, and in which the complainant claimed an easement, where the answer denied that the complainant became seized and'possessed of such rights of way or easement, and further set up an exclusive and continuous possession of the premises for more than twenty years prior to the filing of the bill adverse to the rights of way or easement, if any, reserved by the covenant and the consequent extinguishment thereof, and further set up a lost grant or release, releasing to the defendants all rights of way or crossings over the railroad tracks — Held, that the fundamental right upon which the complainant prays equitable relief is the legal title to an easement in lands of the defendants, and that right being in substantial dispute, until such right is settled at law the aid of a court of'equity cannot be properly invoked. ,</p> <p>2. It can make no difference that the bill of complaint is for specific performance of a covenant out of which the easement arises, since the substantial question raised by the bill and answer is whether the complainant has the legal title to the easement. It is wholly immaterial under what form of bill the question arises. The disputed question must be first settled at law, and in favor of complainant, before the complainant is entitled to relief sought by the bill.</p> <p>3. In a suit for the specific performance of the following covenant contained in a deed made by the complainant’s predecessor in title to the defendant railroad and canal company, “And it is hereby understood and agreed by and between the parties hereto that the said parties hereto of the second part (viz., The United New Jersey Railroad and Canal Company) shall and will construct and maintain fences between the strips of land hereby conveyed and the remaining land adjoining of the said parties of the first part. And the said party of the second part (viz., The United New Jersey Railroad and Canal Company) shall and will maintain the two farm crossings now existing across the said strips or pieces of land hereby conveyed” — Held, that a decree cannot be justified which adjudges the complainant to be entitled to enjoy a right of way or easement for itself, its agents, servants and licensees, on foot or in vehicles over the land of the defendants, and so materially broadens and enlarges the right of way or easement reserved by the covenant between the parties, thus virtually converting a private road into a public one.</p>

<p>1. In a wife’s suit against her husband, an actor by profession, for support and maintenance under section 26 of the Divorce act (Comp. Stat. p. 2038), evidence held to warrant a finding that he was guilty of refusing and neglecting to maintain and provide for her, because it appeared that he did not, according to the income he was receiving, suitably and properly provide for her, under the circumstances, and that the sum of $40 per week awarded to her for the support of her and their two children, who were in her custody, is not excessive in view of the fact that he commanded a salary of $150 to $175 per week when employed during the theatrical season.</p> <p>2. An order for a writ of ne exeat is clearly incidental to the suit and in nowise affects the merits, and an appeal therefrom not having been taken within the time prescribed by law, is not properly before the court and will not be considered at the hearing.</p>

<p>On appeal from a decree of the court o£ chancery advised hy" Vice-Chancellor Lewis.</p>

<p>On appeal from a decree of tire court of chancery made by the chancellor.</p> <p>(Eor principal opinion see ante p. ñ1.£.)</p>

<p>On 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 Lewis, whose opinion is reported ante p. 5%1, sub nom. Battery Parle National Banlc v. Hunt.</p>

<p>On appeal from a decree of the conrt of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 79 N. J. Eq. J/.B8.</p>

<p>On appeal from a decree of the court of chancery advised by YioerChancellor Stevens, whose opinion is reported ante p. .1/7.</p>

<p>In a suit for divorce on the ground of desertion — Held, that the petitioner was not a dona fide resident of this state “at the time the cause of action arose,” within the meaning of the jurisdiction clauses of the Divorce act of 1907 (Comp. Stab. p. 3031). Gets: v. Getz, 81 N. J. Eq. 465, followed.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported ante p. 267.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported ante p. 198.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Ordinary Lewis, whose opinion is reported ante p. £86.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 82 N. J. Eq. 507.</p>