Volume 89 — New Jersey Equity Reports

<p>3. The corroboration of petitioner's testimony required by the law of this state, in order that a decree of divorce may he granted, need not be the testimony of witnesses, although, when such testimony can he procured, it should be introduced. The required corroboration may be furnished by surrounding circumstances adequately established.</p> <p>2. A misleading statement in the third syllabus in Foote v. Foote, 71 N. J. Eq. 373, pointed out.</p>

<p>Where a bequest was made to “the fresh air fund of the city of N.,” there being in such city no incorporated or unincorporated body of that name, the court will, nevertheless, sustain the gift and appoint a trustee to give effect to it.</p>

<p>1. Where the enforcement of a contract for sale of land would be harsh and oppressive on one of the parties thereto, its specific performance will not be decreed, but the parties will be left to' their remedy at law.</p> <p>2. Under the evidence in this case,. held that ito enforce the contract in question by decree of specific performance would as a matter of judicial discretion be harsh and oppressive, and the bill is therefore dismissed.</p>

<p>On hearing on return of order to show cause for injunction pendente Hie.</p>

On final hearing on bill to quiet title. This suit is brought under our statute to quiet title to real estate. The claim of complainant is that a certain mortgage which by its terms covers tidal lands now owned by complainant under a grant from the riparian commissioners of this state is not a subsisting lien on the tidal lands.

On hearing on bill for injunction. By this suit complainant seeks to enjoin defendant municipality from selling a certain block of land situate in that municipality and known as “Turner Park;” also another similar block known as “Singer Park;” also a third tract comprising three blocks and known as “Market Places.” The case has been submitted at final hearing on an agreed statement of facts.

<p>On final healing on bill for specific performance.</p> <p>In this suit complainant seeks the specific performance of an alleged parol contract wherein defendant is alleged to have agreed to pay to complainant $300 for certain real estate.</p> <p>The transaction set forth in the bill is substantially as follows : Defendant by parol agreed to purchase from complainant a certain residence property and to pay for it $1,200 in cash. Before the conveyance was made defendant found that he could raise only $900 in cash and offered to pay to complainant that amount and convey to complainant two certain vacant lots of land then owned by defendant in satisfaction of the remaining $300; but at the same time by parol agreed that he would within two years buy back the two lots for $300. Accordingly, the residence property was conveyed to defendant and .the two lots were conveyed to complainant. The two year’s having elapsed, complainant now seeks to enforce the parol agreement of defendant to buy back the lots. The only written evidence of the transaction (except some recent correspondence of no material value) are the two deeds of conveyance. The deed to defendant recites a consideration of $1,200; the deed to complainant $300. The lots in question are unimproved and in actual possession of neither party.</p>

<p>Whore the proprietor of a shoe-repairing business has bought out a competitor under a contract whereby the latter was not to engage in that business in the city for five years, and after operating both establishments for a while, sells the one he purchased to a third party,' he may restrain the original vendor from engaging in business within five years, the contract not 'being void as in restraint of trade, since the public interests have not been adversely affected, and both the business sold and the business retained have been benefited.</p>

<p>On final hearing on bill to quiet title.</p> <p>Complainant has filed a bill to quiet title to certain real estate in the city of Beverly. Defendants have answered admitting complainant’s peaceable possession and asserting an adverse title. No demand for an issue at law having been made, final hearing has been had on the issue of title raised by the pleadings.</p> <p>No dispute exists touching the facts. The isstíe of title is wholly dependent upon the construction of a clause in the last will and testament of Charles English, deceased. . That clause is as follows:</p> <p>“Third: I order and direct that my wife be suffered and permitted to occupy and have the use of my house in Beverly and its contents for and during the full term of her natural life, and from and after her decease, I give, devise and bequeath the same unto my daughter, Alice E. Brown, absolutely, if she be then living' or should she predecease my said wife, then I give, devise and bequeath the same unto my said wife, absolutely if she be living at my decease.”</p> <p>It is to be herein determined what land'passed by the above-quoted devise of “my house in Beverly.” Whatever land passed by that devise is now owned in fee by complainant by virtue of a deed of conveyance from Alice E. Brown, who survived testator’s widow.</p> <p>The material facts touching the issue stated are as follows:</p> <p>March 13th, 1885, one Diehl conveyed to testator a tract or lot of land in Beverly fronting eighty feet on the east line of Jennings street and extending easterly in depth one hundred and twenty feet, more or less. October 7th, 1886, testator purchased from Diehl an adjacent tract of land at the north and also in the rear of the land first purchased, the tract so purchased being in the shape of the letter “L” and embracing the land lying between the lot first purchased and Church street and land in the rear of the tract first purchased. This tract had a frontage on Jennings street of forty feet and extended along Church street one hundred and sixty feet and- embraced forty feet in the rear of the tract first purchased. By these two purchases testator became the owner of a rectangular tract one hundred and twenty feet in frontage on Jennings street and one hundred and sixty feet on Church street.</p> <p>Thereafter testator erected a dwelling-house on the land so owned by him. The dwelling-house was located on the land described in the first conveyance above referred to and a lawn was made by testator embracing the remaining portion of his land, and tlie whole was then surrounded and enclosed by a fence and no visible or distinguishable trace was left of the lines which originally divided the two tracts of land. The dwelling-house was then occupied by testator as his home during the remainder of his lifetime, and the surrounding land above referred to as a lawn was so used and enjoyed by him. Testator's will was executed while he was so enjoying his home. Testator owned no other house or home in Beverly.</p> <p>Defendants claim that the land secondly purchased by testator does not pass by the above-quoted devise of “my house in Beverly.”</p>

<p>On bill for injunction. On hearing on return of order to show cause.</p>

<p>On final hearing on bill to recover balance due on an agreement of separation.</p> <p>This is a suit brought by a wife against her husband to recover money claimed as due by the terms of a written agreement wherein the parties agreed to live separate and apart from each other, and the husband agreed to pay to the wife $15 per week. The following is a copy of the agreement:</p> <p>“This agreement made and by and between Mr. Thomas A. Devine, Plumber, known as the party of the first part. Mrs. Tho’mas A. Devine, wife, known as the party of the second part.</p> <p>“It is mutually agreed that the said' Thomas A. Devine, husband, party of the first part, will pay to his wife, Mrs. Thomas A. Devine, the party of the second part, the sum of $15.00, fifteen, dollars per week.</p> <p>“Also the party of the first part must pay to the landlord the sum of $15.00, fifteen,, dollars for the rent of house No. 20- S. Georgia Ave. due on September 10th, ’15. It is also agreed that this shall be the last payment of rent by the party of the first part.</p> <p>“It is also mutually agreed that the party of the first part will begin the payments of the $15.00 weekly on September 18th, T5, and the weekly payment shall continue to be paid on every Saturday following.</p> <p>“It is further understood that the'party of the second’ part shall remain away from the party of the first part place of business, also shall not by any means annoy or otherwise interfere with the party of the first part.</p> <p>“If this agreement is violated by the party of the second part the weekly payments shall cease.</p> <p>“Thomas A. Devine, Husband.</p> <p>“Mbs. Thomas A. Devine, Wife.</p> <p>“Harry H. Freed, Witness.”</p> <p>At the hearing it was conclusively established by way of defence that the wife committed adultery in August, 1916. The primary inquiry herein is whether the wife’s adultery was operative to defeat her recovery of the stipulated weekly payments falling due by the terms of the agreement .subsequent to her adultery.</p>

<p>Where testator has given a legacy to a brother who predeceased him, leaving a widow and' two children, his sole descendants, who survived the testator, the widow takes- no share in the legacy, and no part of the legacy can go to the residuary legatee.</p>

<p>1. Power to amerce a sheriff under 1 Comp. Stat. p. J/28 § 1¡9 is independent of amercement under sections 48 and 50, and penalty thereunder cannot be inflicted unless the sheriff has adjourned the sale more than twice, or exceeding one month for each adjournment; and other derelictions, .such as failure v to advertise, must be prosecuted under other sections.</p> <p>2. Under section 49 the sheriff is not liable to amercement for wrongful adjournment of an execution sale where he made two adjournments of one month each, by adjourning from week to week, to preserve the integrity of the published notice of sale, and avoid readvertisement, such weekly adjournments being subservient to the two monthly adjournments.</p> <p>3. Even if the sheriff’s adjournments were excessive, he should not be amerced on motion on the day preceding the sale without opportunity to make the sale and' be credited with the proceeds by bringing them into court before entry of judgment of amercement, especially where the plaintiff suffered no injury but delay, and the defendants were making efforts to pay the debt before sale.</p>

<p>On petition for divorce a vinculo for desertion.</p>

<p>1. A trustee will not be removed for discord existing between him and the cesiuis que trust, unless it arose out of his behavior.</p> <p>2. Where the funds of a trust estate are liable to be jeopardized, the remedy is to require the trustee to give a bond.</p> <p>3. On bill for removing a testamentary trustee where the filing of an account was delayed for seventeen years, and therefore the life tenants were delayed in the enjoj'ment of their interests, this complaint is without merit where ali parties were familiar with the situation and were satisfied and acquiescent.</p> <p>4. Such trustee was not blamable for loaning trust funds without statutory security where the loans were in fact secured and where he had staked his personal fortune to avert the bankruptcy of the venture on which depended the integrity of the complainants’ trust fund.</p> <p>5. The charge that the trustee took excessive commissions was not open to question where his compensation was annually fixed and allowed by the orphans court upon the state of facts disclosed by the accounts, and of which the court and] the parties were fully apprised.</p> <p>6. That the trustee failed to obtain interest on his bank balances did not show lack of diligence where the bank, in which the estate was a stockholder, did not allow interest on deposits; and if there was any lack of diligence in this respect, it should have been brought to the attention of the orphans court on exceptions to the trustee’s annual accounts.</p>

<p>1. The burden is on an endorser of a note to show that the contract is different from that raised by the endorsements.</p> <p>2. Where the holder of a note on failure of the maker to pay, applied to the payee, who had a claim against the holder equal to the note, for payment, and it was agreed that the holder would pay such amount if he could collect the note from an intermediate endorser, and the payee wrote “without recourse” after his endorsement, and the holder sued the intermediate endorser, the real party in interest was the payee, and he could be brought in as defendant by the intermediate endorser on a bill of discovery.</p> <p>3. Where the payee of a note, on its being presented for payment wrote “without recourse” after his endorsement, failure of the holder to disavow the alteration after knowledge thereof, was a ratification of a material alteration which operated to discharge subsequent endorsers.</p>

<p>On bill, &c. On order to show canse.</p>

<p>Where telegraph poles are lawfully located on a public highway, crossed by a railroad at grade, and the municipal authorities and the railroad company enter into an agreement to change the grade of the highway in order to abolish the grade crossing, and in performing this work it became necessary to temporarily remove the poles from the highway and restore them after the change of grade is completed, the cost of this work must be borne by the telegraph company.</p>

<p>1. Where a beneficiary of a trust assigned his interest to secure a loan and gave the assignee a bonus in excess of six per cent., the excess is not enforceable either against the debtor or other assignees of the debtor.</p> <p>2. Where the assignment was made in another state but was to 'be performed in New Jersey, and depended for enforcement on the court of chancery of New Jersey, the law of New Jersey as to usury must control.</p> <p>3. The defence of usury may be interposed either by the debtor or his privies.</p>

<p>Sequestration of a husband’s property and the appointment of a receiver thereof to secure alimony and maintenance in a divorce case does not divest him of all interest in the property. A judgment creditor in such case may sell such interest as the husband still possesses.</p>

<p>In a receivership proceeding the court may allow, as a preferred claim, a reasonable sum for compensation of the counsel employed by the corporation, in good faith, to prevent the appointment of a receiver, but counsel fees representing services to the stockholders of the corporation instead of to the corporation itself, could not be allowed.</p>

<p>1. Where land was sold under a restrictive covenant that no building should be erected thereon unless the front foundation -wall of said building is at least seventy-five feet from the front of said premises on Sunset Parkway North, the erection of a structure which, is a porch below and a second story above is a violation of that covenant, even if the structure is supported by piers and not by a solid foundation wall..</p> <p>2. The term “foundation wall” in such a covenant does not necessarily imply a solid wall but includes anything that takes the place and serves the purpose of a foundation wall.</p> <p>3. While the language of a restrictive covenant is to be strictly construed the court is not obliged to attribute a strict technical meaning to each word used, where to do so would result in defeating the perfectly clear intent of the grantor. The court may construe the language used in the light of all the circumstances, the test being whether the construction put upon the language by the court is so clear that by the acceptance of the deed the acceptor may reasonably be deemed to have understood and acceded to the terms of the restriction as so construed.</p> <p>4. Because the complainant acquiesced in the erection of the porch, he is not estopped by laches from complaining of the erection of a second story thereon.</p> <p>5. Howland v. Andrus, 81 N. J. Eq. 175, distinguished.</p>

<p>1. In an interpleader suit brought by the owner of property against whom a judgment had been obtained by a contractor under a filed contract for erecting .a building, the attorney of the contractor is entitled to a preferred claim for Ms costs, disbursements and a reasonable fee for Ms services rendered in obtaining the judgment in preference to noticing claimants under the Mechanics’ Lien act.</p> <p>2. Notwithstanding the service of notices under the third section of the Mechanics’ Lien act, the contractor still has a cause of action either in his own right or in the right of noticing claimants, sufficient to warrant an action in a law court to recover from the owner the full amount of his claim and the attorney who prosecutes such an action has a lien upon such cause of action and judgment recovered for his compensation under P. L. 1914 p. 410, which is superior to the claims of the noticing claimants.</p> <p>3. In mechanics’ lien cases where there are several notices served and there is a question of priority or validity, or where there is a dispute as to the amount due from the owner to the contractor, the general practice is to seek relief in equity by bill of interpleader or in the nature of a bill of interpleader.</p> <p>4. If the dispute be as to the amount due from the owner to the contractor the practice as to determination has not been uniform. The court may permit a suit brought by the contractor against the owner to go to judgment at law; in any event the court will permit but one suit at law to proceed.</p>

<p>1. This court may, under the sixty-fifth and sixty-sixth sections of the Corporation act, appoint a receiver of a foreign corporation found to be insolvent, notwithstanding the fact that no receiver has been appointed at the domicile of the corporation, and there are no proceedings there pending against it, and the procedure is substantially the same as upon application for the appointment of a receiver for a domestic corporation.</p> <p>2. McDermott v. Woodhouse, 87 N. J. Eq. 615, distinguished.</p> <p>3. AVhere property within this state is alleged to have been fraudulently transferred, and the alleged fraud doer is here in bankruptcy, and several of the parties defendant are residents of this state, a bill to set aside a conveyance as fraudulent may be maintained by a receiver of a corporation of another state, appointed by this court, and such bill will not affect the internal management of the affairs of such corporation within the sense of the opinion in McDermott v. Woodhouse, supra.</p>

<p>On bill. On order to slxow cause. Supplemental opinion.</p>

<p>1. The court may, under the provisions of the sixty-fifth and sixty-sixth sections of an act concerning corporations, appoint a receiver of a foreign corporation found to be insolvent notwithstanding the fact that no receiver had been appointed in the jurisdiction of the domicile of the corporation and that there are no proceedings there pending against it, and the procedure is substantially the same as if the corporation were domestic.</p> <p>2. McDermott v. Woodhouse, 87 N. J. Eq. 615, distinguished upon the grounds indicated in Atwater v. Baskerville.</p>

<p>1. Sureties on a bond given to secure release from arrest on a writ of ne exeat may not surrender their principal and thus secure exoneration.</p> <p>2. A bond in ne exeat conditioned that defendant will not .depart the state without leave is not discharged by the entry of final decree, nor by the fact that the defendant is in custody for failure to comply with final decree.</p> <p>3. A bond in ne exeat with condition that defendant will not depart the state without leave is not discharged after final decree providing for the payment of alimony by the fact that the defendant has complied with the final decree to date of application for discharge.</p> <p>4. The court may, in its discretion, after final decree and while the defendant is in custody for failure to comply with final decree, discharge the sureties on a bond given to secure release from arrest by virtue of a writ of ne exeat upon terms, and may, while the defendant be so in custody, direct the issuance of a new or alias writ of ne exeat upon a showing that there is danger if the defendant be released of his departing the jurisdiction.</p>

<p>Where a trust deed provides for succSssion by appointment by the court to any trustee who shall die, refuse or become unable to discharge his duties, the court is not bound to appoint the same number of trustees named in the original instrument, but may, when all the trustees named in the instrument refuse to accept the trust, appoint a trust company as sole trustee, especially where the application to make such appointment is made by four-sixths of those in interest in the trust fund, and there is no objection by the other parties in interest.</p>

<p>1. Where an insolvent company in the hands of a receiver offers a settlement, approved by a majority of the creditors both in number and amount, which settlement proposes that the receiver be discharged and the assets retransferred to the corporation now in control of a committee of creditors, and that time notes shall be given to the creditors for the face amount of their claims, although there was no objection made on the return of the order to show cause why such course should not be pursued, this court will not make an order in accordance with the proposed plan because the business cannot be resumed with safety to the public, as the liabilities of the corporation will exceed its. assets, new debts will be created, and tbe new creditors may be left to bear the burden.</p> <p>2. Mere extension of time for payment by insolvent corporation may not be “providing for debts” within 2 Comp. Stat. 1910 p. 1645 § 69.</p> <p>3. If the court permits the corporation to continue business, new creditors must be assumed to consider that they are dealing with a solvent concern, when in fact they are not, and thus money of new creditors may be taken and appropriated by the old creditors.</p> <p>4. A court should carefully scrutinize any plan of readjustment and settlement, and of its own motion should refuse to approve such a plan unless it appear that business can be resumed with safety to the public.</p>

<p>1. No one has a tight to palm off his goods as those o£ another by using another’s name so as to obtain its business and so as to deceive the purchasing public.</p> <p>2. Plaintiff was with defendant in a clothing business and m the operation of stores under the name of “The Hilton Co.,” and purchasing defendant’s interest in the business, “including all the name and good-will of said business,” knowing that defendant intended to go into the same business, and consenting to the use of the name “Hilton’s” by defendant in a certain place. Thereafter defendant opened stores known as “Hilton’s,” some of which were near those of “The Hilton Co.,” and used signs whose characteristics were similar to those used by “The Hilton Co.,” and practically identical window displays and similar show cards and labels, so that, there was nothing by which the ordinary observer could distinguish defendant’s stores from plaintiff’s. — Held, that defendant would be enjoined from the use of the name both on the grounds of unfair competition and of the breach of the provisions of the bill of sale.</p> <p>3. The fact that complainant was selling from five to ten per cent, of its goods as having been manufactured by it, which were not in fact made by it, where most of its advertisements were consistent with the idea that the goods were not manufactured, but selected by it, would not defeat its right to an injunction.</p> <p>4. The name “Hilton’s” in a certain place was not broad enough to cover defendant’s operation of other stores under that name in competition with complainant’s stores.</p> <p>5. The fact that a similar business under the name “Hilton’s” was conducted elsewhere to a small extent in a non-competitive community would not prevent relief.</p> <p>6. In a suit to enjoin the use of a name upon the ground of unfair competition, it is not necessary that an actual fraudulent intent on the part of the user be shown or that any single person was in fact 'deceived by the use of the name.</p>

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

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

<p>On appeal from an assessment of the comptroller of the treasury.</p>

<p>The death duty imposed by the War Revenue act of 1916 is a tax upon decedents’ estates, and in assessing the state transfer inheritance tax is to be deducted from the value of the estate in ascertaining the clear market value of the property transferred, and the fact that in intestacy the federal estate tax falls upon all of the transferees uniformly, and not upon the residuary estate, as in cases of testacy, makes no difference.</p>

<p>On appeal from an assessment of the comptroller of the treasury.</p>

<p>On appeal from an assessment of an inheritance tax.</p>

<p>On appeal from an order in chancery advised by Vice-Chancellor Lane, whose opinion is reported in 87 N. J. Eq. 531.</p>

<p>Among the claims filed against an insolvent estate was a claim hy a bank on notes of the H. B. Co. endorsed by the insolvent, and also a claim by the H. B. Co. on a note made by the insolvent for money loaned • — -the H. B. Co. claimed that it had paid the insolvent on account of its notes, and that in equity he was bound to apply the money to that purpose, and that-his failure to do so altered the equitable situation as between themselves and made the insolvent in equity the principal debtor; the only consideration for the insolvent’s note to the H. B. Co. was the cash alleged to have been paid on the H. B. Co.’s own notes. — Held, that on the evidence this was a loan to the insolvent and not a payment on the H. B. Co.’s notes, and that there was a failure to prove an equitable situation different from what was shown on the face of the papers.</p>

<p>On reference to a master to ascertain and report what is the “reasonable sum” to be payable as the purchase price of lands devoted to cemetery uses in accordance with the previous decision of this court in this cause (see 85 N. J. Eq. 501) — Held, that it is proper to ascertain the fair value of the lands as of the date of the receivership, and to award the stipulated ten per cent, of that value payable out of sales as made and without interest, that method appearing to be satisfactory to the parties entitled to compensation for the property.</p>

<p>On appeal from tbe court of chancery.</p>

<p>1. A defective title is no defence to a purchase-money mortgage nor is it ground for abatement in price in the absence of fraud or eviction.</p> <p>2. The right of a vendor to sue an adjoining owner for an encroachment on land sold passes to a purchaser.</p> <p>3. The ordinary covenants in a deed are against lawful and paramount encumbrances and do not apply to a case where an adjoining landowner encroaches on the vendee’s possession.</p>

<p>On appeal from a decree of the court of chancery, reported in 88 N. J. Eq. 153.</p>

<p>On appeal from a decree of the prerogative court advised by Vice-Ordinary Learning, whose opinion is reported in 88 N. J. Eq. 291.</p>

<p>On appeal from a decree of the prerogative court advised by Vice-Ordinary Foster, whose opinion is reported in 88 N. J. Eq. 310.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 86 N. J. Eq. 49.</p>

<p>On appeal from a decree of the conrt of chancery advised by Vice-Chancellor Learning, and reported in 88 N. J. Eq. 81.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 87 N. j. Eq-. 108.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 88 N. J. Eq. 482.</p>

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

<p>On appeal from an order of the prerogative court, made by the ordinary, whose opinion is reported ante p. 759.</p>

<p>On appeal from a decree of the prerogative court advised by Vice-Ordinary Stevens, whose opinion is reported ante p. 162.</p>

<p>1. Where one trustee transfers to another, without getting an equivalent, property that he holds in trust, the transferee will ordinarily take, charged with the same trust.</p> <p>2. Where it is apparent from the different resolutions passed by the corporate bodies, who were parties to the transaction inquired about, that the transaction was not an out and out gift, and that the mutual purpose of the parties was to take further action defining the trust, a proposed sale of the property transferred to an outsider will be enjoined at the instance of the ceskú que trust.</p> <p>3. Managers of a corporation cannot give away its property.</p>

On bill, &e. The will of Mrs. Emma H. Dean, after giving certain legacies, including a life interest, and directing the conversion of her property into cash for investment, provided as follows: “After the death of said Luman Warren Lawrence I order and direct the said Judson C. Prosser to turn over to the town of Bucksport, Blaine, the balance of said sum, including all interest, accumulations and additions thereto, less the amount paid during the lifetime of the said Luman…

<p>On final hearing on bill for construction of will.</p>

<p>1. The Corporation act, section 96, does not authorize the appointment of a receiver for a foreign corporation which is solvent.</p> <p>2. This court will not, under its general powers, appoint a receiver for a solvent foreign corporation. Such relief should be administered in the state of the corporation’s domicile.</p>

<p>The evidence in this ease — Held, to warrant a decree of divorce on the ground of the wife’s adultery.</p>

<p>1. A bill for rescission and an accounting for profits by a stockholder alleging fraudulent confession of judgment and transfer of its property in satisfaction thereof, and also subsequent transfers, though not making the ultimate transferee a party, will not be dismissed, especially in view of chancery rule 13.</p> <p>2. Where a stockholder alleges in his bill that at a certain time ho became the holder of a certain per cent, of the stock of a corporation, this is sufficient to sustain the bill. The objection that he is not such a stockholder as should be permitted to maintain such a bill is a matter of defence.</p> <p>3. Where a bill alleges fraud committed by officers and directors of a corporation against its stockholders, it does not involve investigation into the affairs and relations of a foreign corporation at the suit of a nonresident as to property without the state.</p> <p>4. The allegations of the bill in this ease — Held, to show sufficient reason for suit by a stockholder instead of by the corporation.</p> <p>5. Such allegations also held to be sufficient to eliminate the charge of laches, notwithstanding long delay.</p> <p>6. That a defendant obviously having knowledge of some of the facts may not have knowledge of all of the facts of which the bill seeks discovery, is not good ground for dismissing the bill.</p> <p>7. It is no ground for the dismissal of a bill that the court would not appoint a receiver as prayed, that being only a part of the relief prayed for.</p>

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

<p>1. The court of chancery has no jurisdiction to try a ease involving fraud in the procurement of a will, or irregularities in the execution of the same, especially where the property involved is personal property.</p> <p>2. The rule that equity will entertain a suit to set aside a judgment obtained by fraud, is subject to exception in the case of a decree admitting a will to probate.</p>

<p>1. In a suit to foreclose, a letter written by the mortgagor to the complainant, asking her to give him credit oh an account consisting of principal and interest due on mortgages and a balance of a store account— Held, an acknowledgment of the existence of mortgage debts, so that the presumption of payment would not prevail, although more than twenty years had elapsed without cash payment on principal or interest.</p> <p>2. In an account rendered interest should not have been charged upon the principal fz-om the date of execution of the mortgages to the date of settlement where payments on account of the principal had been made, and no interest on such payments credited.</p> <p>• 3. Where the mortgagor at his first opportunity protested against the cozrectness of the account, and the account was never corrected, the mortgagor’s silence would not amount to acquiescence, so that it could be treated as an account stated.</p> <p>4. An account stated rests upon mutual agreement of the parties as to its correctness. It may be established by formal consent, or by circumstances from which assent may be implied.</p> <p>5. An account rendered may develop into an account stated by acquiescence, as by a failure to object to its items within a reasonable time, and whether there was such acquiescence is usually a mixed question of law and fact.</p> <p>6. An account stated may be avoided for fraud or mistake.</p>

On bill, &c. The bill disclosed this state of facts: The complainant G. P. Parmer Coal and Supply Company issued an attachment out of the Monmouth circuit against A. Pred Albright, and levied upon a policy on his life, payable to his wife, Mayme H. Albright, issued by the defendant New York Life Insurance Company. Leon .R. Taylor was appointed auditor, and upon his report judgment was entered in the action.

<p>1. A restrictive covenant in a deed against a livery or sales stable does not include a public garage.</p> <p>2. A public garage is not a nuisance per se. Whether it is a nuisance in fact depends upon the manner in which it is kept and the business conducted.</p>

<p>1. In a suit to foreclose a mortgage the complainant has the burden of showing how it credited or disposed of the proceeds of sale of any collateral covered by the mortgage. '</p> <p>2. The defendant, who was the owner of lots subject to a certain mortgage, having conveyed eight of them as collateral security to complainant mortgagee, who then bought the mortgage, is entitled to credit for the entire proceeds of complainant’s sale of the eight lots, without deducting the amount due on the mortgage on them, unless complainant surrenders such mortgage.</p> <p>á. The law of the state where notes are made and payable governs as to usury.</p> <p>4. The defence of usury may be pleaded by a surety.</p> <p>5. The defendant is not estopped from pleading usury on notes because in a prior proceeding against it, which has not been tried, it was not pleaded. The question may still be raised in that suit by amendment of the pleadings.</p> <p>6. The act of 1902 (P. L. 1902 p. 459) does not relate to the ordinary debts of a corporation.</p> <p>7. A mortgagee in possession has authority and is under the duty to keep the mortgaged premises in repair, and is entitled to be repaid any disbursements made for the protection or preservation of the property; but where he knowingly makes permanent improvements, without the consent or fault of the owner, he cannot, as complainant in equity, obtain reimbursement for such expenses even to the value of the benefit conferred upon the landowner. *</p> <p>8. If, under expert advice, and in the belief that such repairs were necessary for protection of the property, he makes such repairs which under some other method might have been made for a smaller expenditure, he is entitled to reimbursement.</p>

<p>1. Where a husband sued for divorce on the ground of desertion, and the wife answered denying the desertion and charging constructive desertion, a letter written to the wife by the husband’s father requesting her to consent to the divorce, making certain promises to her, inasmuch as it might have the effect of fraudulently imposing on the court, is a clear contempt.</p> <p>2. Where the father of the husband goes to the wife’s solicitor and threatens to bring political or other pressure to compel the solicitor to withdraw from the case, such act is a clear contempt.</p> <p>3. The act of 1917 (P. L. 1911 p. 71) is unconstitutional, in so far as it may be claimed to apply to the court of chancery.</p> <p>4. The act (1 Comp. Stat. 1910 p. 442 § 82) does not apply to a contempt committed by attempting to induce a defendant in a divorce action to consent to a divorce, or to threats to the defendant’s solicitor with political injury upon his refusal to withdraw from the case.</p> <p>5. A person who attempts to do the things above stated is in contempt, although he was not an attorney and did not know the legal effect of his act; but such ignorance is a mitigating circumstance.</p>

<p>Ou motion to oxdex payment.</p>

<p>1. That an insured had his life insurance policy made payable to his mistress, upon her promise to continue illicit relations with him, does not entitle the executors of insured’s estate, upon insured’s death, to have the policy reformed to make it payable to them.</p> <p>2. Where there is no fund or policy within the jurisdiction of the court, in a suit to reform a life insurance policy to change the beneficiary thereof, the named beneficiary is a necessary party and he cannot be forced into the jurisdiction by publication, as the action is one in personam and not in rein or quasi in rem.</p> <p>3. That a necessary party who refuses to appear cannot be brought within the jurisdiction of the court by service of process cannot be raised by motion to strike out the bill, but may be raised by motion to stay the suit until such defendant actually be in.</p>

<p>1. Where a husband, who had willfully and continuedly deserted his wife, came to his wife’s place of business and offered to take her to Europe if she had money to pay the expenses, and she told him she had no money, but would live with him in America, to which he replied that he was “through with her” and “wanted to have nothing more to do with her,” whereupon the wife asked him to sign a paper to that effect, such request did not amount to an acquiescence in the separation on the part of the wife or deprive the desertion of its obstinate quality.</p> <p>2. Nor did the fact that the wife, at the time of the original desertion, after the husband had expressed his intent to desert and after he had refused her pleas as well those of her mother, ask him to put his intention in writing, amount to acquiescence, or deprive the desertion of its obstinate quality.</p> <p>3. Grover v. Grover, 63 N. J. Eq. 774; Wilson v. Wilson, 66 N. J. Eq. 237, followed.</p>

<p>1. The word “sell” in a contract settling infringement suits — Held, to include a contract to sell.</p> <p>2. In construing a contract the cardinal rule is to ascertain the intention of the parties.</p> <p>3. If more than one construction is possible, surrounding circumstances may be considered.</p> <p>4. If the intention is doubtful or obscure, the most fair and reasonable construction, imposing the least hardship on either of the contracting parties, should be adopted.</p> <p>5. Where possible invalidity of patents is a recognized factor leading to a contract for the payment of royalties, there is no failure of consideration because the patents are afterwards held invalid.</p> <p>6. A contract settling litigation over patents, and whereby a party acquired the right to use over one hundred patents, and was bound to pay a flat royalty on each set of apparatus sold, without any apportionment of such royalties, is not so separable as to permit a finding of failure of consideration as to two patents afterwards held invalid.</p> <p>7. A suit for infringement, wherein a patent was declared invalid, was not a “proceeding in rem,” and does not prevent the same, or a different plaintiff suing another defendant and establishing the validity of the patent on the same or different evidence.</p> <p>S. In a suit for royalties, the patents cannot be held invalid because of a judgment against their validity in another suit between different parties.</p>

<p>1. A preliminary injunction will be issued restraining strikers from denominating employer as “unfair to labor” and its employes as "scabs” by means of a posted placard, cards handed out to prospective employes, and communications to users of the machine manufactured by employer and to labor unions whose members work thereon and in repair thereof.</p> <p>2. A preliminary injunction will be issued restraining strikers from continuing to commit illegal acts in the prosecution of the strike, where continuance thereof would undoubtedly injure employer, although at the time of the issuance of the injunction no actual injury had been done.</p> <p>3. An injunction restraining continuance of unlawful practices by strikers will not be denied because of the discontinuance of such practices shortly before issuance of injunction, where, strike still being in progress, recurrence of unlawful acts is probable.</p> <p>4. Equity will not deny issuance of injunction restraining continuance of unlawful practices by strikers because of refusal of employer to mediate.</p> <p>5. Where, upon the return of an order to show cause why an injunction should not go, respondents appeared generally contesting the merits of the application and raising no question as to jurisdiction over the parties, they will not be allowed after final argument, to object to the award of a preliminary injunction upon the ground that they are non-residents.</p> <p>6. Form of an injunction in a strike case prescribed.</p>

<p>1. The practice of a manufacturer who makes and sells an article not the subject of monopoly, but instead subject to keen competition, the price of which has been standardized through extensive and expensive advertising, of affixing a notice under the terms of which purchasers are forbidden to resell at less than the standard price without removing the manufacturer’s marks and guarantee, is not offensive to public policy or the Sherman or Clayton acts.</p> <p>2. Where the restraint is not upon the resale of the article but upon the use of the manufacturer’s trade name and good-will, it is not within the reasoning of the line of cases in the supreme court of the United States, the last of which is Boston Stores Co. v. American Graphophone Co. (United States Supreme Court), Advance Opinion, April 1st, 1918, page 354.</p> <p>3. A retailer who buys the article from a jobber with knowledge of the conditions imposed upon the resale is bound by such conditions.</p> <p>4. Chapter 107 of the laws of 1916 is not offensive to any provisions of the constitution either of the United States or of this state.</p> <p>5. Such act was a proper exercise of the police power of the state and properly applies to the use of a trade name or good-will, although such trade name and good-will may be identified with articles which prior to their coming to this state have been the subject-matter of interstate commerce.</p> <p>6. When a retailer purchases articles through a jobber in New York, which articles have become known to the public generally through extensive advertising as standard priced, with knowledge that the articles are sold under conditions that they are not to be resold at less than the standard price without removing the manufacturer’s trade name and guarantee, with the preconceived purpose of offering them to the public in this state at a price less than standard, so that the public may believe that all the goods in the store are similarly low priced, whereas in fact they are not, he will be enjoined from selling at less than the standard price without removing the manufacturer’s trade marks and guarantee.</p> <p>7. The right to relief rests not only upon the statute, chapter 107, laws of 1916, but upon common law principles.</p>

<p>1. In an action strictly inter partes between individual parties the court may not deny to a party legal or equitable relief to which he is clearly entitled merely because the effect of the granting of such relief will be to embarrass the party against whom the relief is granted in the performance of war work.</p> <p>2. In such an action relief cannot be denied upon contracts because the effect of the enforcement of the contracts will be to embarrass the government in war activities unless the effect is such as renders the enforcement of the contracts improper as opposed to a well-defined rule of public policy.</p> <p>3. Unless a contractor for the government can point to a special privilege which has been created by law or executive or governmental regulations having the force of law, he stands before the court in precisely the same situation as any other person.</p> <p>4. The court may not, in determining what the effect of the enforcement of its decree will be, consider letters written by officers of the army.</p> <p>5. In an action brought to enforce negative covenants under the provisions of which parties agree to work for none other than complainant, the court will consider all of the equities, will weigh the conveniences and will withhold its injunction if to grant it would do more injustice than justice.</p> <p>6. In such an action the effect upon the business of an employer for whom the employes worked prior to the making of the contracts, and who would be' entitled to a continuance of the services were it not for the making of the contracts, the employes being enticed away by the complainant as a part of a scheme to injure the prior employer’s business, may be considered, notwithstanding that the complainant intended also to advantage himself as well as injure the prior employer.</p> <p>7. Employers of labor at will have a property right in the services of their employes and are entitled to protection against interference with no sufficient justification.</p> <p>8. At the time the contracts in suit were entered into — June 1st, 1918 — there was a well-defined public policy that labor engaged in war industries should remain static, and that disputes with respect to wages and conditions should be settled through government agencies.</p> <p>9. Contracts obtained as part of a scheme which, if successful, would have the effect of disrupting the organization of a plant engaged in the manufacture of war materials essential to the prosecution of the war, are voidable so long as they remain executory, and this is so, whether the parties intended to advantage themselves and had in mind no thought of injury to the government or not.</p> <p>10. Where such contracts are entered into between a prospective employer and employes, and the employes repudiate after realizing the effect of the performance of the contracts, they are entitled to a cancellation of the contracts.</p> <p>11. In such cases the rule that the court will leave the parties to contracts void as against public policy where it finds them, has no application.</p> <p>12. The court will not enjoin a party from proceeding with remedies apparently open to him, upon the ground that the party is proceeding merely vexatiously, except in a very clear case.</p> <p>13. Evidence considered and held that the Driver-Harris Company, in protesting to the secretary of state against the issuance of a charter to the Wilbur B. Driver Company, and to the war industries board, to the capital issues committee, to the priority commissioner, and to various other governmental agencies against the business contemplated to be established by Wilbur B. Driver, did not proceed merely vexatiously and prosecution of these protests will not be enjoined, the company having reasonable ground for its actions.</p>

<p>A. tax collector’s deed given to a purchaser at a tax sale under the Tax Adjustment act (P. L. 1898 p. 442; 4 Comp. Stat. p. 5246) is not invalid as against a tona fiie purchaser from the prior owner without notice whose deed is first recorded, the tax collector’s deed not being within the purview of section 54 of the act concerning conveyances. 2 Comp. Stat. p. 1553.</p>

<p>1. A receiver of a foreign corporation, whether appointed under the statute or the general equity power of the court, may, in the right of creditors, attack a chattel mortgage for defects in recording.</p> <p>2. An affidavit annexed to a chattel mortgage reciting merely that the consideration is so much money is fatally defective and the mortgage is invalid as against a receiver of a foreign corporation.</p> <p>3. When goods are purchased by a corporation for its use and are delivered to it but paper title lodged for an instant in the name of an agent of the corporation who gives a chattel mortgage to the vendor, all with the knowledge of the vendor, the chattel mortgage is void as against the creditor of the corporation, the agent never having any present interest, actual or potential, in the goods.</p>

<p>On petition, &c.</p>

<p>1. The legal sufficiency of a defence 'which under the old practice would have been presented by a plea and which would be tested by setting down the plea for hearing is now properly tested under rules 67, 68 and 75 by motion to strike out the answer filed in lieu of plea, or that portion of the answer raising the defence.</p> <p>2. The rule is established for this court that where the price to be paid by a municipality is so excessive as to shock the conscience, the court may properly interfere by injunction to save the municipality’s money from willful waste or fraudulent diversion. McKinley v. Freeholders of Union County, 29 N. J. Eq. 164; McCormick v. New Brunswick, 83 N. J. Eq. 1.</p> <p>3. The provisions of subdivision 3, section 2 of chapter 252 of the laws of 1916 (P. L. 1916 p. 525), as amended by chapter 240 of the laws of 1917 (P. L. 1917 p. 803), commonly known as the Pierson act, and which act is designed to provide for a uniform method of issuing bonds by municipalities and which subdivision provides that after twenty days.after the publication of the statement referred to in the act the ordinance or resolution shall be conclusively presumed to have been duly and regularly passed and to comply with the provisions of the act, or any other act, and that the validity of such ordinance or resolution should not be questioned except' in a suit commenced prior to the expiration of such twenty days, do not prevent a court of equity from, after the expiration of the twenty days, enjoining the municipality from using the proceeds of bonds in the manner contemplated by the provisions of its ordinance, nor from enjoining the issuance of the bonds, and answers filed in lieu of plea setting up the expiration of the twenty-day period will be stricken out as presenting no defence.</p> <p>4. The purpose of the provisions of the subdivision is to prevent an attack which will affect the validity of the bonds issued under the act, and such is not the effect of the proceedings referred to.</p>

<p>1. This court will, in a proper case, enjoin the officials of a township from enforcing a resolution passed by the township council forbidding the circulation of newspapers published in the German language.</p> <p>2. Where the enforcement of the resolution would cause damage to the complainant, the amount of which it would be impossible to fix or even estimate, this court will not relegate the complainant to his action at law.</p> <p>8. The passage of a resolution prohibiting the circulation of newspapers published in the German language, is not a proper exercise of the police power of a municipality.</p> <p>4. The passage of such a resolution cannot be justified as a war measure, especially where the newspapers are published and distributed under a permit authorized by an act of congress.</p>

<p>1. In order to protect themselves as well as creditors of the estate, executors must require refunding bonds before paying shares to distributees.</p> <p>2. Under Trading with the Enemy act, and executive order of February 26th, 1918, the alien property custodian’s authority is over the property of and interests of alien enemies in property, and not in property in which they have an interest, so that custodian’s interest in the right of alien enemies to legacies is to receive such shares from the trustees upon giving the refunding bonds required of beneficiaries to protect creditors and executors, since they are not protected by section 7, subdivisions c, e.</p> <p>3. The authority of the president as commander-in-chief of the army cannot he extended by congressional action or otherwise over the civil population without the field of military operation to the taking of private property for public use without just compensation.</p> <p>4. The congressional assumption, as shown by Trading with the Enemy act, section 17, providing that federal courts may make orders and decrees necessary to enforce the act, is that the courts should determine what is or what is not enemy property.</p> <p>5. Powers of attorney for collection of money, executed prior to the existence of a state of war, rendering principals enemy aliens, may continue to be valid, notwithstanding the state of war, and notwithstanding the Trading with the Enemy act, and may .be exercised without violating the rules of public policy.</p> <p>O. Where it is obviously against the interests of the principal that the agency should continue, or where its continuance would impose some new obligation or burden, the assent of the principal to the continuance of the power after the war broke out will not be presumed, but must be proved, either by his subsequent ratification or in , some other manner.</p> <p>7. It is plainly against the interest of alien principals that their attorneys in fact give refunding bonds to executors of an estate and receive their legacies and turn the same over to the alien property custodian, so it will not be presumed that such principals desire the agency of their attorneys in fact to continue.</p> <p>8. That alien enemies have been made parties to a suit and served by publication and mailing under license of war trade board, and have interposed no defence by counsel as authorized by the Trading with Enemy act, is insufficient to constitute an election to continue powers of attorney to citizens to receive their legacies.</p> <p>9. It being to the interest of enemy alien principals that their attorneys in fact represent them in proceedings to determine accounting and distribution of their shares in an estate, consent to continuance of a pre-war power of attorney therefor will be presumed.</p> <p>30. Where legacies payable to alien enemy beneficiaries cannot be paid over to the alien property custodian, but must be held by executors as trustees awaiting disposition, the court may direct their investment in securities approved by such custodian.</p>

<p>1. In a suit to foreclose the equity of redemption of owners of lands sold under the provisions of the Tax act of 1903 (4 Comp. Stat. p. 5138 § 59), a defendant not known to be either dead or alive and his unknown heirs, devisees and personal representatives, may be brought in by publication in compliance with section 10 of the act concerning the court of chancery. 1 Comp. Stat. p. 413; Hill v. Henry, 66 N. J. Eq. 150, distinguished.</p> <p>2. Under section 10 of the act concerning the court of chancery (1 Comp. Stat. p. 413), and section 6, an act concerning mortgages (3 Comp. Stat. p. 3411), and sections 54 and 55 of the same act (3 Comp. Stat. pp. 3423, 3424), the decree properly goes against the named defendant not known to be either dead or alive and his unknown heirs, devisees and personal representatives, and the decree binds the named defendant, if he be alive, and his unknown heirs, devisees and personal representatives, if he be dead. Hill v. Henry, supra, considered.</p> <p>3. In a suit for specific performance, the fact that a bill to foreclose the equity of redemption of owners of lands sold under the Tax act, does not contain, in express terms, an averment as to the amount due complainant will not be considered, the decree in the foreclosure proceedings not being subject to collateral attack for this reason. River Realty Co. v. Blumenheim, 77 N. J. Eq. 291, distinguished.</p> <p>4. A final decree in foreclosure proceedings to foreclose the equity of redemption of owners of lands sold under the Tax act, cannot be collaterally attacked in a specific performance suit because it does not fix the amount due, and allow time for payment as is the practice in strict foreclosure.</p>

<p>1. Where a receiver is appointed in this state for a foreign corporation, creditors in this state are not entitled to preference in the funds collected by him.</p> <p>2. Under such receivership, to the extent that there are assets in this state, domestic creditors are entitled ordinarily to have their rights settled by the judicial tribunals of this state.</p> <p>3. Under such receivership, the proper course of procedure is for the receiver to act upon the claims filed in Ms jurisdiction, and to present those claims which he allows to the foreign receiver for action thereon. The assets in New Jersey may then be paid over to the foreign receiver upon his giving bond that he will repay to the New Jersey receiver the amount of the assets then turned over to him unless within a reasonable time there be paid to the New Jersey creditors, whose claims are filed with the New Jersey receiver, their fair distributive share of all the assets of the corporation.</p> <p>4. Atwater v. Baskerville, ante p. 121, and Dolan v. Universal Fire Brick Co., ante p. 138, followed. McDermott v. Woodhouse, 87 N. J. Eq. 615. distinguished.</p>

<p>1. Ignorance of the law, or acting upon the advice of counsel, is no excuse for commission of a contempt, so far as the adjudication itself goes.</p> <p>2. The excuse that a defendant gave orders immediately to change his signs and the labels for his goods, but has not yet substituted new labels on account of labor shortage, cannot be accepted as an excuse for disobedience of an order of this court. No excuse will be accepted except a physical impossibility to comply with the order of the court.</p> <p>3. If, as a means of purging himself of his contempt, the defendant offers to change his practice in such a manner as will appear to the court to be in accordance with the injunction, this will be considered by the court.</p> <p>4. In proceedings to punish for contempt for violation of an injunction restraining the use of a name in a certain manner, no greater proof is necessary to establish a violation than was necessary to warrant the injunction in the first instance.</p>

<p>1. In proceedings for contempt counsel fees may be allowed as part of the costs, and imposed upon a respondent found guilty by virtue of 1 Comp. Stat. p. 445 § 91; P. L. 1910 p. 427.</p> <p>2. O’Rourke v. Cleveland, ¡¡9 N. J. Eq. 577, distinguished.</p>

<p>1. Where non-resident defendants, on return of order to show cause in chancery, file special appearance for the purpose of contesting jurisdiction. but make no motion to set aside service of process or to dismiss bill, they cannot question the court’s jurisdiction of the subject-matter or its authority to make the order asked for; their right to be heard, if any they have, is as to whether they can be required to respond to the order.</p> <p>2. Goods in possession of a common carrier upon which there has been issued a negotiable order bill cannot, in view of the act of congress and the statute of this state, be attached unless the bill has been surrendered to the carrier or negotiation has been enjoined, by which is meant effective restraint, the bill being the res rather than the goods.</p> <p>3. A railroad will not be enjoined from delivering possession of goods in its possession upon which a negotiable order bill has been issued, and which have been attached where the bill and its holder are out of the court’s jurisdiction; the effective restraint of the bill’s negotiation being necessary to make the goods subject to attachment.</p>

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

<p>1. The sixty-fourth section of the Corporation act (2 Comp. Stat. p. 1638), forbidding transfers when insolvent, &c., applies to a foreign corporation doing business in this state.</p> <p>2. Actual suspension of business as used in section 04 imports more than a mere failure to meet maturing obligations as they accrue; the words contemplate an interruption of ordinary business operations evidenced by some objective features; an interruption of the ordinary course of business other than a mere failure to meet maturing obligations.</p> <p>3. “Insolvent,” as used in the sixty-fourth section, must be defined the same as “insolvent,” as used in the sixty-fifth section — that is, a corporation is insolvent when there is a general inability to meet pecuniary liabilities as they mature by means of either available assets or an honest use of credit.</p> <p>4. A corporation may, if temporarily in need of funds, pledge its assets if by the pledge of such assets moneys may be raised which will relieve it of its embarrassment and permit it to continue.</p> <p>5. Before a corporation insolvent, in the sense of laboring under a general inability to pay maturing obligations, can make, for a present advance, a valid pledge of its assets to a person having knowledge of the condition, it must at least appear that the pledge is in pursuance of some financial scheme which it is reasonable to suppose will result in placing the corporation in a position of solvency as contemplated by the statute.</p> <p>6. Distinction between general inability to meet maturing obligations and a temporary embarrassment.</p>

<p>1. A bill filed in a federal district court alleging that a corporation was in such financial condition as that it could not meet its maturing-obligations as they matured and that if creditors were permitted to resort to legal process, the business would be immediately discontinued and the assets of the defendant sacrificed, showed a condition of insolvency within the meaning of section 65 of an act concerning corporations which would justify an adjudication of insolvency and the appointment of a receiver by this court.</p> <p>2. Proofs showing that the business of a company has been conducted in such a manner as that it has been obliged to resort to a moratorium to protect its assets, that the management of its affairs has been for nine months under the management of a receiver in a foreign court; that its stock declined from ninety in 1912 to five in 1917; that no dividends had been declared since 1914, and that its working capital was almost exhausted, disclosed that the business had been conducted at great loss and greatly prejudicial to the interests of its stockholders so that its business could not be conducted with safety to the public and advantage to the stockholders within the meaning of section 65 of the Corporation act, as amended, P. L. 191& p. 5S5.</p> <p>3. To bring a ease within the language of section 65, as amended, there need not appear that there has been either fraud or mismanagement.</p> <p>4. The effect of a decree of the United States district court being to take from the corporation all of its assets and to remove from the stockholders the power to manage its affairs through its directors without in anywise affecting the corporate liabilities, there was a complete suspension of business.</p> <p>5. When directors and officers of a corporation appear in a foreign district court and consent to the appointment of a receiver and to the transfer by the corporation to the receiver of its assets, they violate the provision of section 64 of the act concerning corporations.</p> <p>6. The judicial policy of this state in insolvency proceedings requires that before any act is done which will affect the interest of creditors and stockholders, they should have notice, which policy is opposed by the practice in the federal courts of directing receivers to perform acts affecting interests of creditors and stockholders without notice to them.</p> <p>7. The policy of this state requires that a corporation incorporated under its law should be managed by a board of directors and officers responsible for the performance of their trust and subject to certain statutory obligations, which policy is opposed by acts which result in the management of the corporate affairs being taken over by a receiver appointed by a court of a foreign jurisdiction over whom our statute and policy cannot extend and over whom the courts of this state have no control.</p> <p>S. Where it appears that a corporation is insolvent or that its business is being conducted at great loss and greatly prejudicial to the interests of its creditors and stockholders, and that its assets have been for some time in the control of a receiver appointed by a foreign district court, this court will appoint a receiver under the statute.</p> <p>9. A stockholder intervening in the federal district court for the purpose of questioning the jurisdiction of that court in an action brought by a stockholder against the corporation for the appointment of a receiver, in which action the corporation has appeared and consented to the appointment, does so in the corporate right and is with respect to such right a trustee for the creditors and stockholders and for the corporation.</p> <p>10. Whether the expense for legal services incurred by the stockholder in such an action should be borne by the corporation or not is one purely of equity and to be determined by what ought to be done in fairness and equity.</p> <p>11. Success or failure of the suit or defence brought or made by á stockholder is not determinative as to whether the corporation should bear the expense.</p> <p>12. Where the suit or defence is one which ought to have been brought or made, whether successful or not, it is fair that the corporation should bear the expense.</p> <p>13. The district court in Pennsylvania had no jurisdiction to appoint a general receiver of the New Jersey corporation upon a bill filed by a stockholder, and the determination of that court and the circuit court of appeals for the third circuit to the contrary is, under the circumstances of this case, not binding upon this court.</p> <p>14. The elements which enter into the amount of compensation of counsel considered, and compensation fixed for services rendered in the Pennsylvania litigation and also for services rendered as counsel for complainant who secured the appointment of a receiver in this court. ■</p>

<p>1. A suit in equity to reform a contract of insurance or to enjoin an insurance company from setting up certain defences, in aid of an action at law, is not an action within the meaning of the provisions of the policy providing a short period of limitation.</p> <p>2. Delay of upwards of a year before instituting an action to reform' the policy, &c., unaccompanied with injury to the insurance company is not such laches as to warrant withholding relief.</p> <p>8. Where a policy of insurance issued by an agent having knowledge, communicated to him by the insured, that the building stands on leased ground and that the property is encumbered by a chattel mortgage, does not contain notations to such effect, the company is estopped from setting up in an action at law that the policy is void under a provision that it shall be void if the building stands on ground not owned by the insured, or if the interest of the insured is other than unconditional ownership.</p> <p>4. Failure of the insured to read the policy and thus discover the omissions is not such negligence as will bar relief.</p>

<p>A party to a pending litigation against whom, in such litigation, there is pending an application to punish for contempt, who commits publicly, but without the presence of the court, an assault and battery upon a person supposed by him to be the individual who gave the information which resulted in the institution of the contempt proceedings and therefore who might be a material witness, is guilty of a contempt of court, although he was mistaken in the identity of the individual, the act being one having a tendency to interfere with and obstruct the due administration of justice.</p>

<p>On proceedings to punish for contempt.</p>

<p>1. Payments made at a time when a corporation is insolvent and has suspended its business in the sense that it has ceased to meet its maturing pecuniary obligations as they accrue, to a creditor, with notice of the insolvency, whose debt arose by reason of an advance by him to the corporation at a time when it was insolvent to his knowledge, are voidable under section 64 of the Corporation act and may be recovered by a receiver.</p> <p>. 2. A creditor who has advanced money to a corporation insolvent to his knowledge and has taken a pledge of all of its assets, the advances not being made in pursuance of any plan of rehabilitation, repayment being provided for in monthly installments in amounts which the creditor must have known the corporation could not pay except at the expense of nerv creditors unless extraordinary circumstances intervened, is charged with knowledge, of. insolvency at the time of payments which in fact existed.</p>

<p>1. The law, when justice requires, takes cognizance of parts of days. Gallagher v. True American Pub. Co., 15 N. J. Eq. 171, followed.</p> <p>2. In proceedings instituted in this court for the winding up of a partnership, alleged to be insolvent, after the granting of an order to show cause why a receiver should not be appointed, and the appointment of a temporary receiver, though before final decree of dissolution, creditors may not, either by judgments subsequently obtained arid issuance of execution and levy, or by issuance of execution and levy on judgments obtained prior to the award of the order to show cause and appointment of temporary receiver, acquire preferences. Ross v. Titsworth, 37 N. J. Eq. 333, distinguished.</p> <p>3. The rights of creditors to an equitable distribution of the assets of an insolvent partnership arises at least upon the property being taken over by a temporary receiver with a view to ultimate distribution, and after such a taking over liens cannot be obtained through legal proceedings.</p> <p>4. In proceedings to wind up the affairs of a partnership, creditors will be permitted to make levies so that, in case of a discontinuance of the suit, or for any other reason, the assets of the partnership are not distributed as the result of the suit, their legal rights will be protected.</p> <p>5. If it appears in proceedings to wind up a partnership that the partnership is solvent, or that the proceedings are not being taken in good faith with a view to ultimate distribution of assets amongst creditors and those entitled thereto, the court may permit judgment creditors to proceed with their legal remedies.</p> <p>6. In this state priorities of judgment creditors in distribution of assets are regulated by statute, and if there be no statute, there is no priority.</p> <p>7. Section 1 of an act for winding up voluntary associations, and associations with partnership liabilities (3 Comp. Stat. p. 3924), does not apply to the winding up of ordinary partnerships.</p> <p>8. Judgment creditors are preferred in the distribution of the assets of an insolvent corporation only so far as they may have acquired liens on the property of the insolvent corporation prior to the court taking control of the property for administration. Doane v. Millville Mutual Insurance Co., 45 N. J. Eq. 274.</p>

<p>AVhere the orphans court, settling a guardian’s account, granted the substituted guardian and ward leave to Jake proceedings against the original guardian’s estate, or his surety, the court, after the time for appeal had passed, was authorized, on petition of the ward, to open the decree for exceptions, the account being merely an intermediate account.</p>

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

<p>On application for probate.</p>

<p>1. The ox-dinai-y may, undex- his genex*al jux-isdiction, appoint an administx-atoi- ad prosequendum to px’osecute a cause of action undex- the Death act (2 Comp. Stat. p. 1907), as supplemented by chapter 180 of the laws of 1917 (P. L. 1917 p. 531), where the deceased was non-x-esident.</p> <p>2. Lothrop’s Case, 33 N. J. Eq. 246, followed; Chadwick’s Case, 80 N. J. Eq. 471, distinguished.</p>

<p>1. The right to appeal from a decree in chancery only exists in favor of a person aggrieved by such decree.</p> <p>2. Where the effect of a decree of the court of chancery is to leave the parties in exactly the position the appellant claims they were from the beginning, she cannot appeal from said decree, as she is not a “person aggrieved” thereby.</p>

<p>On appeal from a decree in chancery advised by Vice-Chancellor Stevenson, reported in 88 N. J. Eq. 436.</p>

<p>The informality of an order for postponement of hearing of an appeal from the probate of a will by the surrogate, in failing to specify the sum to be paid by appellant on account of expenses in subpcening an alienist — Held, not to justify the reversal of an order dismissing the appeal when no one appeared for the appellant on the adjourned day.</p>

<p>It was not meant by rule 131 of the supreme court (edition of 1913), applicable to the court of errors and appeals by rule 147, to compel the appellate court to pass on every question raised on the appeal.</p>

<p>1. Under a contract to convey real estate “by a good and marketable title free and clear of all encumbrances,” the vendor is bound to have and tender a title free from encumbrances, and dependent for its validity upon no doubtful questions of law or fact. The title must be such as to make it reasonably certain that it will not be called into question in the future so as to subject the purchaser to the hazard of litigation with reference thereto.</p> <p>2. The conveyance of a lot by reference to a map made by the vendor, and filed in the proper public ofiice, describing the lot as bounding on a designated street, shown on the map, constitutes a dedication to public use of that street as laid out thereon.</p> <p>3. A dedication of a proposed street across land, made by conveyance by reference to a filed map, is a bloud upon the title, justifying a proposed purchaser, entitled to a “good and marketable title free and clear of all encumbrances,” in refusing to take title in the absence of a vacation of such street, even though the street has never been opened or formally accepted by the municipal authorities, and that is so because, after such a dedication of the street to public use there exists the right of the public to appropriate the street at any time when their wants or convenience require it.</p> <p>4.. Where the doubt as to the validity of a title is one of fact, the court never compels a purchaser to take the title where the fact is too doubtful to be settled without litigation and all the parties interested are not in court.</p> <p>5. The fact that the purchaser of lands, before making his contract for a “good and marketable title free and clear of all encumbrances,” saw a map thereof showing a paper street (of which there were no physical indications on the ground), does not constitute a waiver of objections to the title because of the public servitude created by the dedication of the street to public use by conveyance by reference to such map, or estop the purchaser from insisting upon a marketable title free from encumbrance.</p> <p>C. The fact that pending the closing of the title, the purchaser, at the request of the vendor, took and retained possession of the property until the deed therefor was tendered and rejected because of defect in the title, does not constitute a waiver of his contract right to a “good and marketable title free and clear of all encumbrances,” when it appears that whilst in possession he did nothing but what one so entrusted with the property was bound to do, and immediately tendered possession to the vendor upon learning of the defect.</p>

<p>1. In a husband’s suit for annulment on the ground that his wife’s prior marriage was still subsisting, the allowance of an amendment of the answer alleging illegality of the prior marriage is within the sound discretion of the court, and will not lead to a reversal unless a clear abuse of that discretion is shown.</p> <p>2. The presumption that a cohabitation known to the parties to be meretricious in its origin continues to be of that character may be rebutted and proved to have become matrimonial and a lawful common law marriage established. The change may be established by proof of circumstances excluding the presumption that the original relation continued and showing satisfactorily that it was changed to matrimonial union by mutual consent.</p> <p>3. A cohabitation, meretricious in its origin, becomes matrimonial and a lawful common law marriage is established when, upon being informed of the death of the woman’s first husband (which death removed the only impediment to marriage), the man declares to the woman that she is his wife, and thereafter the two, by habit, conduct and declarations, hold themselves out as husband and wife.</p>

<p>On appeal from a decree in 'chancery advised by Vice-Chancellor Backes.</p>

<p>Where there is a trust to collect and pay, for life, the income of a fund with a gift over of the fund, which latter fails, because of a violation of the rule relating to perpetuities, and as to it the testator dies intestate, and as a consequence the fund becomes vested in the same persons entitled to the income for life, and all that remains of the trust is the collection of income from the fund and its payment to the persons entitled for life, without discretionary power in the trustee, the trust becomes a passive or simple trust and the owners of the fund are entitled to its possession and to have distribution of any part of the fund not subject to an active trust remaining.</p>

<p>The husband offered no defence to the charge of abandonment and nonsupport of his wife, but pleaded that having given her when he left her two out of four bank books, representing substantially the savings of the wife and gifts to her from her mother, he had fulfilled his marital duty of support. — Held, that if the money represented by the books were his he had made a gift of it to his wife. — Held, also, that his duty to support his wife was not after the expiration of two years of continuous neglect upon Ms part fulfilled by such gift.</p>

<p>In order for paragraph 5 of the statute of frauds to apply, it must appear that the parties intended when they made a parole contract that it should not be performed within a year. If this does not expressly or clearly appear and the contract is one which, taking in consideration its subject-matter, may be performed within that period, the statute does not apply, although in fact a longer time was actually taken in performance.</p>

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

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

<p>On appeal from an order of the court of chancery advised by' Vice-Chancellor Griffin, whose opinion is reported ante p. 95.</p>

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

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis and reported in 88 N. J. Eq. 113.</p>

<p>On appeal from a decree in chancery advised by Advisory Master Stockton.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 88 N. J. Eq. 450.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 88 N. J. Eq. 450.</p>

<p>On appeal from a decree advised by Vice-Chancellor Lewis, whose opinion is reported in 88 N. J. Eq. 119.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported ante p. 261.</p>