Volume 9 — New Jersey Equity Reports

<p>This was an injunction bill filed October 31st, 1851, upon which an injunction issued, and the defendants having answered, a motion to dissolve the injunction was argued at Eebruary Term, 1852. The facts, so far as necessary to a clear understanding of the case, appear in the opinion of the Chancellor.</p>

This bill was filed to obtain a judicial construction of a will. The facts of the case, so far as necessary for its clear understanding, appear in the opinion of the Chancellor.

<p>1. A general creditor, having no specific lien on his debtor’s property, has no right to interfere with any disposition his debtor may make of it, but an attaching creditor has such a lien as will enable him to maintain a suit in chancery to set aside, as fraudulent, conveyances or judgments under which the property attached is claimed.</p> <p>2. A bill for that purpose should be for the benefit of the complainant, and such others of the creditors as should come in and seek relief by and contribute to the expenses of the suit; arid should allege for what amount the attachment was issued, that it was executed, and what property was attached, and should make the defendant in attachment a party.</p>

This cause was heard before the Chancellor at February Term, 1852, upon the bill, answer, replication and proofs. The nature of the pleadings and the facts sufficiently appear in the Chancellor’s opinion.

<p>The bill alleges that, about the year 1817, Joanna De Groot, the mother of the complainant, being seized in fee simple of certain lands and premises of about eighty acres, in the county of Bergen, in consideration of natural love and affection, and of the benefits of the improvements proposed, agreed with complainant that he might take possession of the land, and make improvements thereon; and for so doing, he might enjoy the same, and take the rents and profits during his natural life. That, at this time, the land was in a low state of cultivation, and no buildings thereon ; that complainant entered, in pursuance of said agreement, improved the same, built thereon a good farmhouse, barn and other buildings, and planted fruit trees, all at his own expense, amounting to at least $3000; that the complainant, by himself and tenant, is still in possession of the land.</p> <p>That in September, 184.6, Joanna De Groot conveyed the said land and premises to Naomi C. Wright, the wife of E. R. Y. Wright, and daughter of said complainant; that the only consideration therefor was natural love and affection ; and that it was made and accepted with full knowledge, by the said Naomi and her husband, of the rights and interest of the complainant in the premises ; and at the time, it was agreed between them that the deed was not to take effect during the lifetime of complainant, so as to interfere with his rights and interest, and that the complainant was to have the use and occupation of the premises during his life; that, at the time she executed the deed, she was upwards of eighty years old ; confided in said E. R. V. Wright, who is a lawyer, to draw the deed ; and, if the said deed does not reserve the use of the said land during complainant’s life, it is in violation of the agreement made by the said Naomi and E. R. V. W. with the said Joanna, and is a fraud upon the said Joanna and the complainant.</p> <p>That the said E. R. Y. W. and wife have oommenced actions of ejectment, in the Bergen Circuit, against complainant and his tenant, to recover the possession of the said lands.</p> <p>The prayer^ of the bill is, that the deed from Joanna to Naomi may be corrected in conformity to the agreement of the parties, so as to reserve to the complainant a life estate in the premises, and for injunction to stay the suits at law, and restrain them from commencing any like action during complainant’s lifetime.</p> <p>The defendants, by their answer, admit that the complainant and his mother lived together on the same farm, as stated, but fully deny all knowledge of any agreement between, them, as alleged in the bill, entitling complainant to enjoy the land for his life, or for any other time, except as tenant at will, and they believe no such agreement was ever made as is alleged in the bill. They admit the improvements made upon the land, but state that the said Joanna was a widow, possessed of considerable property, consisting of money at interest, a house and lot in New York, and the land in question; that the complainant, being her only son, had her confidence, collected her moneys, and that the moneys so collected, unaccounted for, amounted to more than the value of the improvements; admit that complainant was in possession of. the premises, and lived on part of the same with his mother, but say he was only tenant at will. They further say that, prior to March, 1844, Joanna D. had lost confidence in her said son, and determined to convey her property to her grandchildren, (the children of complainant,) upon the consideration of their securing to her support and maintenance during life'; that,. in pursuance of of that determination, she did convey to Naomi the house and lot in New York, and to another grandson, Samuel De Groot, a part of her real estate in New Jersey, and thereupon the said E. R. Y. W. and S. De G. executed to the said Joanna a deed of covenant to support and maintain her during life : that, afterwards, the said Joanna discovered that her son, the complainant, without her knowledge, had encumbered the house and lot in New York, and on that account she executed the deed to Naomi mentioned in the bill. They deny fully that at this time they, or either of them, had any knowledge, intimation or belief that the complainant had any interest for his life, or for any other term, in the said land, and they deny any such agreement respecting it as is alleged. They deny that the deed was drawn in any way different from any agreement between them and the said Joanna, or different from her understanding, wishes, or instructions, but according to her wishes and instructions.</p> <p>Upon Ming the bill, an injunction was granted to stay the proceedings of the ejectment suit, which was dissolved upon the coming in of the answer.</p> <p>Proofs were taken in support of the bill, and contra ; and the cause came on for final hearing at February Term, 1852.</p>

This was an injunction bill, and after notice to the defendants of the intended application, and an answer put in by one of them, the motion for injunction was argued before the Chancellor, whose opinion- discloses enough of the allegations of the bill and answer for a full understanding of the case.

This cause was heard before the Chancellor, at February Term, 1852, upon demurrer to the bill. The questions involved sufficiently appear by the Chancellor’s opinion.

<p>This bill was filed by the complainant, seeking discovery-in aid of his prosecution of a suit at law. The bill alleges that Sarah Milward, wife of John Milward, as the heir-at-law of her father, became entitled to certain real estate in the county of Mercer. That, on the seventeenth day of September, 1814, the said John and Sarah, for the consideration of $100, granted and conveyed a part of the same to Joseph Ashmore, which is the land in question between the parlies to this suit. That the deed was acknowledged before a proper officer, but that, in taking the acknowledgment, the officer did not certify that the said Sarah was examined privately and apart from her husband. That Joseph Ashmore entered into the possession under the deed, and so continued until the 24th of June, 1816, when he sold, for a valuable consideration, to James Ashmore, the brother of defendant, who entered into the possession. That James, being about to leave the state for a considerable time, and wishing to make some provision for the care of his aged lather, permitted the defendant to take possession of the premises, under an agreement to cultivate them for the mutual support of himself and his father. That, under that arrangement, the defendant entered and kept the possession until the death of his father in 1846.</p> <p>That, in December, 1845, James Ashmore, for the consideration of $200, sold and conveyed the premises to the complainant, and which deed was duly acknowledged and recorded. That, at the time of his purchase, the complainant did not know of the defect in the acknowledgment of the deed from Milward and wife. That, afterwards, discovering the defect, the complainant applied to Mrs. Milward — -told her the difficulty, and thereupon, without hesitation, on the 24th day of June, 1847, she, for the nominal consideration of $1, duly executed and delivered to complainant a deed for the premises, which was recorded on the 22d day of April, 1848. That then the complainant commenced an action of trespass and ejectment for the land, and, in July Term of the Supreme Court, the defendant applied and entered into the usual consent rules to defend as the owner. That, on the 20th of September, 1847, the defendant being fully apprised of the fact that the said Sarah M. had given the last-named deed to the complainant, but finding it was not recorded, procured her to execute a deed to him, of the date last named, purporting a consideration of $170, and which deed, on the-next day, was recorded.</p> <p>The bill further charges that the defendant did not pay any consideration for the conveyance to him, and at the time he obtained it, had full knowledge of the complainant’s title. That the deed to defendant was privately and secretly executed, and that defendant has refused to give any information in relation thereto. That Sarah M. resides out of this state, and that complainant cannot discover whether she is aware that, at the time when she made the deed to him, he had any knowledge of the prior deed to the complainant, nor has complainant been able to discover who was present when the deed to defendant was executed.</p> <p>The bill then prays a discovery as to the knowledge of the defendant of the complainant’s deed from Sarah Milward, at the time of the execution of her deed to. him, and ‘the consideration upon which, and the circumstances under which it was executed.</p> <p>The defendant has demurred to the bill.</p>

This was a proceeding under the “Act to prevent frauds by incorporated companies.” The bill was filed by a creditor and a stockholder of the company, and the complainants now applied for an injunction to restrain the defendants from exercising their corporate franchises, and for the appointment of receivers to wind up its concerns.

<p>This cause was heard before the Chancellor at February Term, 1852, on motion to dissolve the injunction which had been allowed by a master. The grounds relied upon in support of the motion sufficiently appear by the Chancellor’s opinion.</p>

<p>This cause was heard on motion to dissolve the injunction on bill and answer.</p>

This case was argued before the Chancellor, February Term, 1852. The defendants having answered, now move to dissolve the injunction, which had been allowed by a master.

<p>1. The intention of the testator is the law of wills, and when that intention can he ascertained, if not in violation of the rules of law, it will prevail over technical rules, and words in their technical or even ordinary meaning. The word “ children” has a technical meaning in legal instruments. It is a word of purchase, and yet if it appears to have been the intention to use it in a different sense, as a word of limitation, it will be so construed, in order to effectuate that intention.</p> <p>2. A residuary clause in a will was in the following words: “ I bequeath all the rest, residue and remainder of my estate, real and personal estate wheresoever, after the above legacies and money are taken out, then the remainder to be equally (divided) between the child or children of my nephew, Acquila S. Ridgwav, and my sister, Rebecca Tilly, each one to have an equal share thereof, and his children, or if but one child he should leave, to have its or their share with my sister, with the interest arising on each one's share paid them when and as they arrive at lawful age, whether then their father is deceased or living, and for all my nieces and nephew, Wallace Lippincott, the children of my deceased nephew, Stacy Lippincott, to take their equal share therein with my sister Rebecca and the children of Acquila S. Ridgway.”</p> <p>3. Held — that the children of Stacy Lippincott, deceased, take per capita.</p>

<p>1. In making an exception to the general rule that the court will dissolve an injunction when the equity of the bill has been fully answered, the court will be governed in some degree by the consequences to follow upon the dissolution, and by the conduct of the complainant in prosecuting his suit.</p> <p>2. There should be some good reason for making an exception to the rule. Where the complainant has not prosecuted his suit with diligence, and no insuperable mischief can be done to the party by dissolving the injunction, the court will not deny the defendant the benefit of his answer.</p>

<p>1. In a bill for discovery merely, it will be sufficient for the court to see that the discovery is material to the defence at law of the party seeking the discovery, and how and in what manner it is material.</p> <p>2. But where it is asked that a suit at law should be delayed, or the bill prays relief as well as discovery, the complainant should aver that the discovery sought for is necessary to his defence, and that the plaintiff is unable to prove such facts by other testimony.</p>

<p>1. The Chancellor endorsed on a bill the usual order for an injunction to issue on filing the bill, and the bill was not filed for four months after the order was made. A sheriff’s sale had been delayed by the proceedings, although no injunction had actually been issued.</p> <p>2. Held, that the proceedings were altogether- irregular, and the bill must be dismissed, with costs.</p> <p>S. That the bill should- have been filed, whether the injunction was made use of or not.</p>

The bill in this cause was filed to compel a specific performance of an agreement in writing, executed between the complainant, as the executor of the last will of James Hamilton the younger, deceased, and the defendant, Paul Tulane. The agreement is for a house and lot of land in Princeton, which the complainant agrees to convey to the defendant, and the defendant agrees to purchase at a price specified.

The complainant is a purchaser of the real estate in controversy, under a judgment against Henry Freas, Jr. Elizabeth Espy holds the property by deed from Henry Freas, prior to the judgment. The bill is filed to set aside that, deed on the allegation that it is. fraudulent, and was made and executed by Henry Freas, Jr., to defraud his creditors.

<p>1. An answer, purporting to be an answer of two defendants, and signed by solicitor and counsel, as solicitor and counsel of the defendants, but sworn to by one only, is not what it purports to be. It is not the answer of the defendants, but of one of them only; and cannot, without the consent of the opposite party, be read as the answer even of the defendant who has sworn to it.</p> <p>2. It is not sufficient to show that injustice has been done in a trial at law, to entitle the party to the interference of this court, but it must have been done under circumstances which authorize the court to interfere. If a matter has already been investigated in a court of justice, according to the common and ordinary rules of investigation, a court of equity cannot take on itself to enter into it again.</p> <p>3. This court cannot grant relief on the ground that the court at law erred in overruling evidence. An interference on such grounds would convert the Court of Chancery into a Court of Errors, and would be an assumption of jurisdiction which does not belong to the court.</p> <p>4. If the defence is equally available at law as in equity, and the party has had an opportunity of making the defence at law, a court of equity has no jurisdiction to relieve against the judgment, unless some special ground for relief can be established other than that of an error in law committed by the court which has jurisdiction of the case.</p> <p>5. As a general rule, this court will not interfere with a judgment at law solely because the principal witness was mistaken as to facts, and was subsequently found to be in error.</p> <p>6. Nor will relief be granted where the party has been deprived of his defence in any manner, through his own neglect or laches.</p> <p>7. The complainant stated that he had been deprived of his defence in a trial at law by the court’s allowing parol proof a judgment. Held, that against such a decision of the court the complainant can obtain no relief here.</p>

A writ de lunático inquirendo was issued to inquire of the lunacy of Runey Dey. By the return, it appears that twenty-three jurors, all that were qualified, sat upon the inquisition, and, by their unanimous finding, declared Runey Dey a lunatic, and that his lunacy had existed for more than eighteen months prior to their finding. On behalf of the lunatic a number of exceptions were filed to the proceedings.

The bill was filed to restrain the defendants from carrying on a certain business at Jersey City, alleged to be a nuisance. An application was made for an injunction, and the Chan-cell or ordered notice of the motion to be given to the defendants. The defendants answered the bill. Affidavits to a large extent were taken by both parties, and read on the argument of the motion, which was heard at Newark, August 5th, 1852.

This cause was heard before the Chancellor, May Term, 1852, on motion to dissolve the injunction, which had been granted on filing the bill.

This cause was heard before the Chancellor at Trenton^ July 3d, 1852, on motion to dissolve the injunction, which had been granted on an order of one of the masters.

<p>This was a matter of practice, which was heard at the October Term, on motion to dismiss the bill.</p>

This was a matter of appeal from receivers. It was heard at, October Term, 1852, on motion to dismiss the appeal. A. Whitehead moved to dismiss the appeal, on the ground that it was a matter from which an appeal would not lie, and relied upon the statute. R. S. 129, §§ 11, 12, 13, 15, 17.

<p>1. J. entered into a verbal agreement with M. that M. would convey to J., on the first of August, 1839, two lots of land, for a consideration specified. On delivery of the deed, J. should pay a specified portion of the consideration money, and give a bond and mortgage for the residue, payable in five years; or, provided, that by a day specified, J. should put improvements on the two lots, to the value of the cash payment specified, then M. agreed to take a bond and mortgage for the whole purchase money. J. entered under the agreement, went into possession, and commenced building. No conveyance was made to him under the agreement.</p> <p>2. Subsequently, J. entered into an agreement under seal, which bears date the twenty-ninth day of August, 1839, in which, after reciting the verbal agreement above, J. agrees, for a consideration specified, to convey to W. all his right, title and interest in the said lots of land; and further agrees to discharge M. from all liability under his contract, provided M. would convey the said premises to W. upon the same terms he was to convey to J.</p> <p>3.. On the thirteenth day of September, an attachment was issued against M. as an absent and absconding debtor; under this attachment, the sheriff attached the lots mentioned, and all the right, title and interest of J. in the same.</p> <p>4. On the twelfth of October, M. conveyed the lots to W. ~W. executed a mortgage to M. and entered. This mortgage was foreclosed. M. was the purchaser, and on the twentieth of November, 1841, the sheriff executed to him a deed.</p> <p>5. On the eleventh m December, M. conveyed to one of the defendants, H. H. went into possession, finished the buildings, and put considerable improvements on the lots.</p> <p>6. On the twenty-ninth of July, 1843, nearly four years after the attachment was levied, the auditors made sale under the attachment, and conveyed to the complainants the interest of J. in the lots and improvements.</p> <p>7. The bill prays that the lien of J. be established, and the complainant be decreed entitled to the property by virtue of his purchase.</p> <p>8. Held — that the agreement of the twenty-ninth of August, was a legal transfer of all J.’s interest in the land, and M.’s consent was not necessary to make the transfer of J.’s interest complete. The agreement between J. and W. was complete and executed.</p> <p>9. If J. had anyinterest subject to attachment, he had an interest he could part with without M.’s consent, and the attachment subsequently issued and levied, created no lien upon the land.</p> <p>10. If a debtor is about to abscond from his creditors, and with this knowledge on the part of the purchaser, and with the view of aiding him to convert his property into funds, so that he may the more readily effect his purpose, he takes a conveyance of the debtor’s property, he participates in the fraud the debtor contemplates perpetrating, and such conveyance is void as against creditors.</p> <p>11. But a debtor in failing circumstances, or about to abscond, may legally make a conveyance for the purpose of preferring an honest creditor.</p>

Bill filed on the seventeenth day of May, 1849. The bill states that Leonard Scott, late of the city of Trenton, and county of Hunterdon, now county of Mercer, duly made and published his last will and testament in writing, bearing date on the fifth day of September, in the year of our Lord one thousand eight hundred and thirty-six, which was executed and attested as by law is required, for passing real estate by devise, and thereby, after directing all his just debts to be…

<p>1. There can be no doubt as to the power of the court to grant relief against a judgment which is against conscience,-which was obtained by fraud, or in any other way, by which injustice has been done ; and where the injured party has had no opportunity, of defence, or could not make it through any defect of the law, and where adequate relief cannot be afforded by the court where such judgment was obtained, and timely application for relief is made to this court. Authorities collected, 3 Green’s Ch. 466.</p> <p>2. Where the pretended consideration of a judgment in attachment was for the board of the complainant’s wife, and it appears that shortly after he married he left for New Orleans, and that during his absence she lived with defendant; that by the will of complainant’s wife’s father, the executrix was required to educate and support the complainant’s wife during her minority, and that, in consideration thereof, defendants (the executrix and her husband) agreed not to charge complainant anything for his wife's board; that at the time the attachment was taken out, the defendants had in hand funds to an amount more than large enough to pay the claim they made, which belonged to complainant in right of his wife; in such a ease, the complainant would be entitled to be relieved against the judgment.</p> <p>3. In such a case of gross wrong and fraud, this court would not stop to inquire whether or not the injured party might possibly get relief upon an application to open the judgment. Independent of the faet of the alleged agreement, if at the time the board was furnished the defendants had in their hands funds which belonged to the wife, and which, from their nature, there would be a propriety in appropriating in liquidation of the debt contracted for board, this court would interfere and compel such appropriation in satisfaction of the judgment.</p> <p>4. The bill should state whether the attachment was taken out against the defendant as an absconding or an absent debtor. If the defendant was an absconding debtor, the court certainly would not grant him relief as readily as they would if the proceedings had been against him as an absent or non-resident debtor;</p> <p>5. A clause in a testator’s will was in the following words : “ Lastly. I nominate and appoint my said wife, Lucretia Scott, executrix of this my last will and testament, and in whose care and protection I leave my said children, and I hereby desire and enjoin upon her to educate and support them during their minorities, respectively, in a decent and suitable manner, for which purpose it is my intention to provide her the means, as well as for the support of herself.”</p> <p>6. Held, that there was no doubt that while the executrix enjoyed the property she was bound to maintain the children, during their minority, to the extent of the means thus placed in her bands. But the obligation existed only while the children remained subject to her authority and under her control, as their mother. That a daughter, by marrying, withdrew herself voluntarily from her mother’s family, and accepted the protection and support of her husband, in preference to that offered by the -will of the testator. It was an abandonment of the support she might otherwise have claimed.</p>

<p>1. Where an injunction bad been granted to stay a suit at law, that the defendants might make discovery, and that the complainants might have relief in the premises in this court; and the defendants, subsequently, moved to dissolve the injunction, on the ground that the equity of the bill had been fully answered, and the discovery prayed for obtained; the court refused the motion, because the bill prayed for relief as well as discovery, and in regard to a subject matter which appropriately belonged to equity jurisdiction.</p> <p>2. But the bill must show a case of manifest propriety in this court’s retaining the cause, where a suit has been commenced at law, and the party seeks to change the forum of litigation, and prays for relief as well as discovery.</p>

The bill was filed October 2d, 1852. It charges that Nicholas Van Duyne, late of the county of Morris, died on or about the 30th of October, 1842; that at the time of his death he was seized of several tracts of land lying in that county, of about one hundred- acres, and was possessed also of a considerable amount of personal property, consisting of household furniture, farming utensils, grain, stock on his farm, debts due to him, &c. That he died,leaving Hannah Van Duyne,…

<p>This cause was argued at Newark, December 7th, 1852, on the pleadings and proofs.</p> <p>The bill charges that, in the year 1831, one Daniel Swayze was seized in fee of a farm in the county of Morris, of the value of five thousand dollars, and described in the bill, containing about one hundred and eighty-nine and sixty-eight hundredths acres.</p> <p>That Daniel Swayze was the father of six children, to wit, the complainant, and the defendants, Isaac, James, Mary, Mehetable, afterwards wife of John Sliker, and Sarah, after-wards wife of Andrew Sliker.</p> <p>That Isaac and James, on or about the 10th of July, 1831, induced their father to make them a deed, in fee simple, for the said farm, and that on that day, D. S. and wife did execute to them such deed, purporting, on its face, to be for the consideration of two thousand dollars.</p> <p>That at that time, the complainant was in the possession of the farm, as tenant; that James.and Isaac commenced an ejectment suit against him, at September Term, 1832, of the Supreme Court, and that he, the complainant, being poor, was obliged to give up possession.</p> <p>That D. S., at the time he executed the deed aforesaid, was seventy-five years of age; that he was, at all times, a man of weak mind, and, at the time of making the deed, was incompetent to attend to any business whatever, and was unfit, on account of the infirmity of his mind, to execute the conveyance aforesaid.</p> <p>That Isaac and James obtained the deed by false and fraudulent representations, and without any consideration.</p> <p>That they represented to D. S. that the complainant had an unjust and illegal claim against him, and would sell his farm to pay it, and that if he would make a deed to them for the farm, they would either pay him two'thousand dollars, or make him good security for it — would take care of him during his life — provide for his wants, and, at his death, make a division of the farm among the brothers and sisters, notwithstanding the deed.</p> <p>That, by means of these representations, D. S. made the deed to them.</p> <p>That the representations so made were deceptive, false, and fraudulent..</p> <p>That, at that time, the complainant had a just and legal claim against D. S., and which the said James and Isaac well knew, and they combined together to defraud the complainant out of his debt.</p> <p>That James and Isaac never paid the two thousand dollars consideration money, or any part of it, or secured it; that they did not provide for him, but neglected to do it.</p> <p>That since the conveyance, James and Isaac have occupied the land, and enjoyed, for their own use, the rents and profits.</p> <p>That, at the time of acknowledging the deed, D. S. stated that he was induced to make the deed solely on the above representations; that no arrangement had then been made to secure him the two thousand dollars, and he was afraid they never would; and 1). S.’s wife, at same time, made like statements.</p> <p>That the old man, during his life, frequently charged James and Isaac with having deceived him, and that they knew complainant’s debt was just, and ought to be paid, and at one time, on such charges, or similar ones, being made, Isaac acquiesced.</p> <p>That D. S. died about the 1st of August, and his wife the 1st of October, 1841.</p> <p>That at his death he left personal property of the value of five hundred dollars, and in money four hundred dollars; that he received a pension of fifty-six dollars and sixty-seven cents per annum, commencing on the 4th of March, 1831, and ending September 4th, 1843, amounting in all to seven hundred and eight dollars and thirty-seven cents.</p> <p>That Isaac and James, or one of them, was in the habit of receiving the pension money, and had a considerable part of it in their hands at the old man’s death.</p> <p>That Isaac and James received one hundred and eleven dollars of other moneys to which D. S. was entitled, from different individuals; that no letters of administration wore ever taken out, and that Isaac and James took all his personal estate and converted it to their own use, and never accounted for any part to the complainant.</p> <p>That I. and J. took possession ,of all the papers ; that D. S. left no debts at his death except the one to complainant; that the complainant is the heir-at-law of D. S. to the one-sixth part of his estate, real and personal.</p> <p>That D. S., at his death, was indebted to the complainant in the sum of three hundred dollars, for money paid for D. S. and at his request; in the further sum of one hundred dollars for work, labor, &c., and for goods, wares and merchandise sold and delivered to him ; in the further sum of one hundred and sixty-five dollars principal, costs and interest due on a judgment recovered by complainant against D. S. before a justice of the peace of the county of Morris, on 21st September, 1835.</p> <p>That Bethuel, one of the children and heirs of D. S., died about 1st April, 1840, and the other children, refusing to join as complainants in this bill, are made defendants.</p> <p>The bill prays that the deed from D. S. to his sons may be set aside, and account taken of the rents and profits of the lands.</p> <p>That an account may be taken of the personal property of D. S. that has come to the possession of the said I. and J., and full settlement of the estate be had, and the value of the lands be ascertained.</p> <p>That an account may be taken of what is- due to the complainant,.and that a receiver may be appointed.</p> <p>That the said lands may be sold, and that out of the moneys so arising the complainant may be paid the amount due to him from the said D. S., and that after the complainant has been paid said amount so due him, the complainant may receive his sixth part of the said real and personal estate.</p> <p>And that the complainant may have such other relief, &e., &c.</p> <p>The answer denies' the equity of the- bill.</p> <p>In reference to the conveyance to them, the defendants state:</p> <p>That their father was about seventy years of age, and from the natural abatement of his strength was unable personally to attend to the proper cultivation of the farm; that he was embarrassed by debt which he had incurred both on his own account and that of complainant, to an amount of several hundred dollars, and was threatened with prosecution; that he became uneasy lest his property should be sold to pay his debts, and he complained of the complainants (who then lived with him) not keeping the farm-in order, and of his unkind treatment to him and his wife; that both the old man and wife frequently applied to them, and urged them to purchase, and keep it as a home for them.</p> <p>That finally they agreed with their father to buy the farm on the following terms: They agreed, in consideration of a conveyance to them, to provide for their father, their mother, and their sister, Mary Swayze, (who had always been afflicted with imbecility of mind,) a comfortable maintenance and support for and during their natural lives. They further agreed to pay off their father’s debts, and which debts, their father stated, would be about, as he supposed, three hundred dollars, but which amounted to about eight hundred dollars. They further agreed that, after the death of their father, they would pay their sister, Mehelable Sliker, one-third of the difference between the amount of their father’s debts and the sum of one thousand dollars, the other two-thirds of that difference to be retained by and equally divided between the defendants, their father averring at the time that the complainant and Sarah Sliker had had more than their full share of his property.</p> <p>That in pursuance of this agreement the deed was made, and that they have faithfully performed their part of the agreement, which was the consideration of the deed ; that they have paid off debts to the amount of about eight hundred dollars, maintained their father and mother during their lives, and have maintained their sister since.</p> <p>That when they took possession, the farm was worn out; that they built two houses, in one of which their parents lived during their lives.</p> <p>They deny the charge of their father’s incapacity, and insist the consideration was an ample one.</p> <p>They deny circumstantially any charge made in the bill of fraud.</p> <p>They admit that, at his death, their father left some personal property, but of small value. They deny that any of it ever came into their possession, but say that it was taken by their sister, and claimed by her as having been given her by her father. They deny that their father, at his death, had any money or obligations, to their knowledge, and they do not believe he had.</p> <p>They admit their father received the pension, and that he expended it for his own support. They deny they ever had any of it to their own use.</p> <p>They admit that no letters of administration have been taken out, and that at the time of his death their father owed no debts.</p> <p>They deny, according to their best knowledge and belief, that their father owed complainant. They admit the judgment, but insist it was improperly obtained.</p> <p>The complainant filed a replication, and proofs were taken on both sides.</p> <p>The other defendants did not answer.</p>

The bill was filed August 22d, 1850. Its object was to-set aside the sale of the sheriff of the county of Camden, upon several judgments and executions, and for a re-sale. It charged several of the judgments as fraudulent, and illegality in the sheriff in advertising the property and in conducting the sale. The sheriff, T. W. M., and Isaac Cole answered the bill. The other defendants did not answer.

<p>This was an application for an injunction, and was argued at February Term, .1853, on bill, and the affidavits filed on behalf of the defendant. The state of the case sufficiently appears in the opinion of the Chancellor.</p>

<p>1. If a debtor makes an assignment for the benefit of his creditors, such assignment must be in conformity to the statute. He has no right to give a preference of one creditor over another, nor has he a right to annex to such assignment a condition which contravenes any provision of the statute.</p> <p>2. The assignee cannot protect the property from the debtor’s creditors, by virtue of such an assignment. If an assignment is made for the equal benefit of the creditors, the assignee must proceed to discharge its trusts in conformity to the provisions of the statute.</p> <p>3. But where, at the request of some of the creditors, the books of account, notes, &c., were placed in the hands of a responsible person to collect, and for no other purpose, such an assignment was held to be no more than a power of attorney. It did not place the property beyond the control of the debtor; it created no right between the assignee and the creditors There was nothing illegal in such assignment, nor could it prejudice the creditors.</p>

This cause was argued at Newark, December 8th, 1852, on bill, answer, replication and proofs. The opinion was delivered February Term, 1853. The pleadings and nature of the case upon the proof, sufficiently apoear in the opinion of the Chancellor.

<p>This ease was argued at October Term, 1852, on exceptions to master’s report.</p>

<p>A complainant cannot he permitted to have his bill dismissed without costs, unless by the consent of the defendant in open court, or by agreement in writing.</p>

The bill alleges that John Arrowsmith, late of the county of Monmouth, died possessed and seized of considerable real and some personal estate; that at the time of his death he left the following will, to wit: “ I do order that all my just debts and funeral charges be paid and satisfied as soon as can conveniently be done after my decease, by my son John Arrowsmith. Item.

This was a bill for the specific performance of an agreement in writing, entered into the 4th day of February, 1841, —bill filed October 10th, 1846. Hearing upon bill, answer, replication and proofs.

This was a bill for injunction and receivers, under “ the act to prevent frauds by incorporated companies.” The original bill was filed May 11th, 1852. The case was argued, and the application refused, May Term, 1852. (Sin. Ch. R. 95.) The complainants filed an amended bill July 13th, 1852. The cause was heard on the pleadings and proofs.

<p>Motion to dissolve injunction on bill and answer.</p>

<p>1. In a bill to foreclose a mortgage, tbe rights of all encumbrancers at the commencement of the suit, not made parties, are not bound or affected by the decree.</p> <p>2. If the first mortgagee brings a bill to foreclose against the mortgagor, and obtains a decree without making subsequent encumbrancers parties, their rights are not foreclosed. And their remedies still remain against a purchaser claiming under the decree (Canhy v. JRidgwa/y, October Term, 1826.)</p>

This was a bill to foreclose, filed by the complainant, August 6th, 1852. The cause was set down for hearing upon the bill, and the answer filed by Ellen Stiles.

This was a bill exhibited against the executors of Jacob Gray, who was a judgment creditor of James Tuttle and others, defendants, to foreclose their rights, and to sell the mortgaged premises. The cause was put down for hearing on the bill, answer, replications and proofs. The state of the case sufficiently appears in the opinion of the Chancellor.

The bill alleges that on the 28th March, 1833, the Trenton Delaware Falls Co. purchased of S. R. Hamilton and wife, and John McKelway and wife, about 17 acres of land, in the township of N., in the county of B., at the time subject to a mortgage by Peter A. Hargous to N. Belleville, dated 27th Nov., 1835, to secure $3000, and which mortgage was subsequently assigned to Robert McCall.

Tho original bill in tbis cause was a bill for sale of mortgaged premises, filed by Small against Boudinot. The cross-bill was filed to compel Small to take a re-conveyanee of the property, cancel the mortgage, and the bond it was given to secure, and account for the principal and interest money paid <on the bond and mortgage. The case is fully stated in the •opinion of the Chancellor.

Henry Richman, deceased, by his last will, dated 6th Janaary, 1779, proved 15th September, 1787, devised as follows, viz., “I give unto my son, Henry Richman, the plantation 1 now live on,” &c. “ I give it to my son Henry during his natural life, and then to the heirs of his body, lawfully begotten, forever.” Henry Richman, the devisee, entered into possession, and then by deed, 5th January, 1796, conveyed the premises so devised to him, to one Thomas Parvin.

<p>1. When a board of directors, or a majority of stockholders, deviate from the originally contemplated undertaking, the “ rights ” of other and dissenting stockholders are “ affectedas against them they cannot legally do it.</p> <p>2. A majority of stockholders in a prosperous corporation cannot, at their own mere caprice, sell out the whole source of their emoluments and invest their capital in other enterprises, where the minority desire the prosecution of the business in which they had engaged. The contract is that their joint funds shall, tinder the care of specified persons, generally called directors, be employed, and that for certain specified purposes.</p> <p>3. Where the duration of such employment is limited in the charter, until that time it must continue so employed, unless, perhaps, in case of clear loss. If no time is fixed by the charter, at which the proposed use of the capital shall cease, the contract is that so long as the aflairs of the company are prosperous it shall go on, unless all consent to the contrary.</p> <p>4. “How far, under what circumstances, and upon what application a court of equity would restrain a corporation from an improper alienation of its property, must depend upon the general principles which guide it in the exercise of its powers; but, in a proper ease made, it would interfere to prevent a disposition of its property for other than corporate purposes.</p> <p>5. “It is the right of a partner to hold his associates to the specified purposes, whilst the partnership contintfes.”</p> <p>6. In the enacting section of the charter of a railroad, the words “ And they and their successors, by the said name and style, shall be capable of purchasing, holding and conveying any lands, tenements, goods and chatties whatever, necessary and expedient to the objects of this incorporation,” only authorize property to be sold and conveyed away when it is necessary or expedient to the objects of the incorporation. The objects of the incorporation cannot require that the necessary source of its profitable existence should be sold and conveyed away.</p> <p>7. A supplement to the act of incorporation of a railroad company, authorizing the company to purchase the road constructed by another company, and declaring that the purchased road should become a part of the road authorized to be constructed by the charter, contained a proviso, “ That nothing in this act contained shall in anywise affect any right whatever, either at law or in equity, of any stockholder or other person in, or any claim or demand against, the,company whose road it was contemplated to purchase. Held, that the purchase authorized by the supplement did affect the rights of the stockholders in the company whose road was to bo purchn led ; and that the legislature intended, when they provided that nothing in ’ ■- et contained should in anywise affect any right whatever, that such purchase should not occur without that which alone could prevent its affecting such rights, viz., the consent of every stockholder.</p> <p>8. Quere. Whether a supplement authorizing any deviation from the original charter, and not requiring the consent of all the stockholders, is unconstitutional ?</p> <p>9. Where, the company whose road was purchased under the above supplement, and who were not a necessary party to any of the different kinds of relief prayed, had not been made a party to a bill filed by one who was a protesting stockholder, against the directors of both roads, and the company in possession of the road, and all its property but the franchise ; and the objection was not taken until the hearing of a general demurrer to the equity of the bill. The court disposed of the case on its merits, without requiring such formal parties to be joined.</p>

This was a bill to enforce a trust. The cause was heard upon the pleadings and proofs. All the material facts disclosed, appear in the opinion of the Chancellor.

<p>This cause was referred by the Chancellor to George H. Brown, one of the masters of the court. The material facts disclosed by the bill, and the causes assigned as grounds of demurrer, appear in the opinion of the master.</p>

<p>On the 29th of March, 1849, the defendant, Mackerly, executed to the complainant two bonds; one to secure the payment of one thousand dollars, in one year, and the further sum of one thousand dollars in two years from date, with interst on the whole sum, payable annually; the other was to secure the sum of three thousand dollars, as follows: one thousand dollars on the first day of April, 1852; the further sum of one thousand dollars on the first of April, 1853; and the further sum of one thousand dollars on the first of April, 1854, with interest on the whole sum, payable annually. To secure the payment of these bonds, the defendants executed to the complainant a mortgage on certain lands which the complainant had conveyed to Mackerley, and to secure a part of the purchase money, of which the said bonds and mortgage were made and executed as aforesaid.</p> <p>The bill was filed on the 28th day of May, 1852. It alleges that the first bond was paid at maturity; but that the sum of one thousand dollars, the principal due on the other bond on the first day of April, 1852, remains unpaid.</p> <p>The bill further alleges that the said bond and mortgage are lost; that the complainant kept them locked up in his bureau, and that on or about the 2d of August, 1851, they were taken away; that after diligent search, the complainant has been unable to find the same, but believe that they were carried away by Hannah Massaker, his wife, who, about the time the bond and mortgage were taken, left his house without provocation, and has since resided in Morris county; that on the 1st of April, 1852, the defendant, Mackerly, paid the interest on the said bond, and upon the principal of one thousand dollars being demanded, said he had not provided the same. The bill alleges that the defendant has knowledge where the said bond and mortgage are.</p> <p>The object of the bill is to foreclose the equity of redemption, and for sale of the property, to satisfy what is due on the mortgage.</p> <p>On filing the bill, an injunction was granted, to prevent the payment of the money due, and to grow due on the lost bond, to any other person than the complainant.</p> <p>The bill was answered by Charles Maekerley. He does not suggest, in his answer, any doubt as to the loss of the bond and mortgage, in the manner alleged by the complainant, but sets up the following defence: He says that on or about the 1st of April, 1851, at the time he made the last payment of one thousand dollars on the first bond, the complainant told him that he did not wish him to pay any more of the principal when the same became due; that all the complainant wanted was his interest, and that if the defendant paid the said principal, he, the complainant, would be obliged to loan it out again, and he wished the defendant would keep the money and pay him the interest therefor, or words to that effect. That the defendant replied that he did not like to have the matter remaining in that situation, because if he relied upon the complainant, and failed to raise the money when it became due, complainant might then call upon him for the said sum of money, and put defendant to great inconvenience to raise the same. Whereupon complainant told defendant he need have no fears on that account, because that if he, the complainant, should happen to stand in need of the said payment when it became due, he would give the defendant timely notice of it, so that he would be able to raise the same. He says that, relying upon this promise of the complainant, he did not take especial pains to raise the whole of the said sum of one thonsand dollars, to make said payment on the 1st of April, 1852, as he otherwise might and would have done. • He further says that on the 1st of April, 1852, he called on the complainant and told him he wished to pay the interest, but that he did not feel safe to pay the principal until the bond and mortgage could be found, so that the payment might be endorsed on said bond, to which complainant replied, he had promised the money to one Samuel Van Blarcom, if defendant paid it in. Whereupon defendant reminded complainant that he had said to defendant he did not want the money, and that his promising it to another, without giving defendant notice, was contrary to his agreement, which complainant did not deny, but replied that he thought now his bond and mortgage were gone, he ought to have his money, or words to that effect, but that the complainant, neither on that day, or at any other time before the commencement of this suit, made any other demand or request of payment. He further says that in the same conversation, he told complainant that if the bond and mortgage could be found, so that the payment could be endorsed thereon, he could and would raise the said payment in a very short time, if the said complainant would procure the said bond and mortgage, but he then insisted, and now, by his answer, insists that he could not, with safety, pay to the complainant the said sum of one thousand dollars, so long as the said bond and mortgage were outstanding, in the hands of some person unknown to the defendant, without some indemnity, more than a mere receipt, and without any satisfactory evidence that the said bond and mortgage had not been assigned, by the complainant, to some other person; that he was then willing, and told defendant he was willing to make the payment whenever he should be indemnified.</p> <p>The answer admits that on or about the lst of August, 1851, the said Hannah, wife of complainant, came to defendant’s house, and told him that she had left complainant, and had taken his papers. That defendant asked her what papers ? and she said she did not know ; that she had a note of one Ackerman, and complainant’s papers, done up in a package; that defendant immediately told her that the papers were of no use to her ; but defendant says he has no recollection that the said Hannah made any mention whatever of the said bond and mortgage j that defendant supposed she had taken the papers back to complainant, until a day or two afterwards. Complainant called upon defendant and notified him that the bond and mortgage were gone, at which time the said Hannah denied that she had the said bond and mortgage, or that she had taken them away. Defendant denies all knowledge as to who took the said bond and mortgage, or as to who has them.</p> <p>The defendant, by his answer, admits that, inasmuch as he was prevented from paying the said sum of one thousand dollars, by the request and solicitation of the complainant, and by his promise to notify defendant if he would need said payment, that it would be inequitable and unjust, and would be enabling the complainant to take an undue advantage of the defendant, for this court to decree a foreclosure and sale of the said mortgaged premises. The defendant further insists that, if he had not been prevented by the conduct of the complainant from preparing his said payment on the 1st of April, 1852, and if he had been ready to make such payment yet, that he was not bound to pay the one thousand dollars to complainant without the production of the said bond and mortgage, in order that the said payment might be credited and endorsed thereon, and that the defendant might have some satisfactory evidence that the said bond and mortgage had not been assigned by the complainant to some other person, or kept back, or concealed by him for some other purpose, or without some sufficient indemnity furnished to the defendant against the said bond and mortgage, and against all costs and damages.</p> <p>The defendant offers now to pay the sum due, under the order of the court, upon the production of the bond and mortgage, or upon the complainant’s executing to him a sufficient indemnity.</p> <p>To this answer, the complainant filed a replication on the 26th August, 1852, and proofs were taken.</p>

<p>Sydney Reading, one of the defendants, presented a petition, praying that he might be permitted to withdraw or amend, as the court should deem proper, the answer filed by him in this suit.</p> <p>A copy of the petition'was served upon the complainant* with notice of application. At the hearing it was offered, on behalf of the complainant, to read affidavits in answer to the petition. This was objected to as in violation of the rule requiring the affidavits to -be taken on notice, or copies served. The objection was sustained, and the application was heard upon the petition only.</p>

<p>1. A widow is entitled to her dower in an equity of redemption, and the court will protect her interest.</p> <p>2. So where the sheriff sold under a decree of the court. The surplus, after satisfying the mortgages, represents the equity of redemption, and the widow of the mortgagor is entitled to her dower in it.</p>

John Holcomb, as a mortgage creditor of the defendants, filed his bill against them, under the act entitled, “An act to prevent frauds by incorporated companies.” Statutes of N. J. 129. Such proceedings were thereupon had that receivers were appointed. In adjudicating upon the claims of the creditors, the receivers determined that the complainants’ mortgage was not entitled to priority.

<p>This was an application for an injunction, on bill, answer and affidavits.</p>

<p>One who had waived his right to have commissioners called, and permitted a corporation to take possession of his land without first making compensation, or pursuing the mode prescribed by the act to ascertain it, and permitted them to change the character of the property, expend large sums of money upon it, and constitute it a part of an extensive and valuable public improvement, cannot recover the possession of the land upon paying for the improvements. The only relief the court will afford, is to give him compensation for his land, and remuneration for all damages ; and this may he ascertained either by reference to a master or the intervention of a jury.</p>

The question involved in the controversy turns upon the following agreement: In Chancery: Between Peter Z. Elmendorf, Complainant, and Albert Camman and John B. Cam-man, John J. Gaston, James Nevius, Defendants. New Jersey: Somerset County. Geo. H. Brown, Sol. Decree perfected April 8th, 1841.

On filing the bill an injunction was allowed by one of the injunction masters. This was a motion on the answer of the defendant to dissolve the injunction.

This was a motion for injunction, argued at Newark, August 2d, 1853. The case, as made by the pleadings and proofs, sufficiently appear in the opinion of the Chancellor.

<p>1. The acknowledgment of the receipt of the consideration money in a deed is prima facie evidence that the consideration is paid. But it is not conclusive. The grantor may show that the consideration was other than a moneyed consideration, or if a moneyed consideration, that in whole or in part it was unpaid.</p> <p>2. The acknowledgment of payment in a deed is a receipt for the consideration money, and if the grantor impeaches that receipt it must be clearly made out to the satisfaction of the tribunal to which an appeal is made for redress.</p> <p>3. Where a complainant comes into court with a sworn bill, and it turns out upon investigation of the case that the bill has been framed with skill and care to avoid an impression which would be made by an ingenuous statement of the case, the complainant assumes a position in the court which deprives him of the benefit of doubts which might otherwise be resolved in his favor.</p> <p>4. A disingenuous bill which is sworn to, is quite as obnoxious to the censure of the court as a disingenuous answer.</p>

<p>1. Subscribers to tbe stock of a manufacturing company put in at a valuation, as assets of the company, a cotton mill, &c., receive the stock of the company therefor, and dispose of the same as their own. The company take possession of the mill, and use it for several years; no conveyance, by deed, is made to them, a mere memorandum of the transaction being made on the journal of the treasurer.</p> <p>2. Held, that when the consideration for the property was received, its former owners became mere trustees of the company, and held the title for the company. Any conveyance made by them subsequent to that transaction, though for a full consideration to a grantee with notice, would be void against the company.</p> <p>3. A judgment creditor, at best, stands in no better situation than such a grantee.</p> <p>4. Although books of a company are not evidence against third persons, a memorandum in writing, made by an agent of the parties, and at their request, is evidence for and against them, and for and against all persons claiming under them.</p>

The bill alleges that the Boudinot Manufacturing Company was incorporated on the 12l.h day of February, 1835, with a capital stock not… Held: to enable the company to re-commence business; that Stoutenburgh and Laffan refusing, the complainant and his said partners made application to the legislature for a supplement to the charter of the company, and which was passed March 4th, 1844, by which supplement the company were authorized to increase the par value of their shares…

The appellants filed their bill of complaint in the Court of Chancery, on the 16th day of November, 1852, in the following words, to wit In Chancery, New Jersey.

The bill was filed December 24th, 1849. A demurrer to the bill was overruled, for not having been set down for hearing according to law. An answer was filed, December 17th, 1850, and a replication, December 24th, 1850. Proofs were taken on both sides.

The facts of this case, so far as necessary to a clear understanding of the points decided, sufficiently appear in the opinion of the Chancellor, which was delivered October Term, 1852.

This was a bill of interpleader filed in the Court of Chancery, on the 24th August, A. D. 1846.

The bill in this cause was filed to avoid certain judgments as fraudulent. The injunction, as modified, merely restrained the sheriff from paying over the money received by virtue of the judgment, until the final hearing of the cause. Upon the coming in of the answer the defendants moved to dissolve the injunction, on the ground that the answer was a full denial of the equity of the bill.

<p>The bill in this case sets out that the president and council of the city of Paterson had purchased a farm in Saddle River, and were engaged in erecting on it a poor-house, or poor and work-house, in which they intended to keep the paupers chargeable, and that should become chargeable, upon that city, and the idle and dissolute persons and vagrants of the same; and that they had removed and were keeping paupers there : and that the sending, keeping and maintaining, &c., would be a great injury and nuisance, and a public wrong, to the inhabitants of said township and county, and praying relief and an injunction.</p> <p>The bill was directed to be filed, and time given to the defendants to put in an answer.</p> <p>The answer admits the purchase of the land, and that they were erecting a building upon it, to be used as a poor-house, &c., but denying that it would be an injury, nuisance or public wrong, and claiming right under their charter to erect and maintain such poor-house, &c.</p>

The injunction was issued in this cause upon the filing of the complainant’s bill, by one of the masters, without notice to the defendants. Upon the coming in of the answer, an order was made dissolving the injunction. From that order the complainants appealed.

This was an appeal from an order of the Chancellor directing process to bring in the parties to answer for an alleged contempt. The opinion of the court., dismissing the appeal, was delivered by

<p>1. Either party may set a cause down for hearing, but it is the duty of the appellant, in all eases, to prepare the state of the case. In case of neglect, the remedy is by dismissing the appeal.</p> <p>2. It is the right of the appellant to prepare the state of the case, or, at his option, to abandon the further prosecution of his appeal. Nor can he be deprived of that right.</p> <p>3. Quere. Whether the respondent, in case he, as well as the appellant, is aggrieved by the decree of the court below, and insists upon a hearing as essential to his rights, may bring the cause to a hearing against the will of the appellant.</p> <p>4. The appellant cannot be subjected, against his will, to additional costs, by the adverse party preparing the case for him. It is clearly his right to insist upon his right of preparing the case, or of abandoning the appeal, at his pleasure. But where no state of the case has been prepared by the appellant, as required by the rule, the respondent may at once move to dismiss the appeal. And if the appellant refuse to go to hearing upon a case fairly prepared by his adversary, justice would require that the appeal should be dismissed.</p> <p>5. While the court condemn the practice of marking a case by italics, whether a state of the ease shall be rejected upon this ground, rests in the sound discretion of the court.</p> <p>6. On appeal from chaneery, it is not necessary to print the pleadings and evidence in full. The formal parts of the bill may always be advantageously omitted, and the pleadings in most oases materially abridged.</p>

Jonathan Bruere and John H. Bruere, administrators of James Bruere, deceased, filed their bill of complaint in the Court of Chancery, on the 2d day of April, 1849, against Seneca Sinniekson and Ruth, his wife, to foreclose a certain mortgage, executed by the said Seneca and wife to the said James Bruere, bearing date the 10th day of April, 1827, to secure the payment of the sum of five thousand and one hundred dollars in one year from date, according to the condition of a…

The chancellor, haying been of counsel with the company in reference to the matters in controversy, called to his assistance James Wilson, one of the masters of the court, to advise with upon the hearing of this cause.

<p>The Chancellor, having been of counsel with the company in reference to the matters in controversy, called to his assistance James Wilson, one of the masters of the court, to advise with upon the hearing of this cause.</p> <p>The stockholders of the Morris Canal and Banking Company, by resolutions of 10th March, 1846, authorized their directors to mortgage their canal and its appendages, tolls and revenues in order to raise money for certaiii purposes on bonds of the company, to be secured by the mortgage, which was to be executed to three trustees, to be appointed by the board. The directors, by resolutions of 13th March and 28th March, 1846, appointed John J. Palmer, Zebedee Cook and Theodore Dehon, of Yew York, trustees for that purpose, and authorized the president and cashier to execute the mortgage to them, and also to issue the bonds. The mortgage was executed accordingly, 28tli March, 1846, and duly acknowledged and recorded, and bonds to a large amount were soon after issued. Afterwards, by resolutions of 17th March, 1848, the directors authorized the president to borrow thirty thousand dollars on the notes of the company, and to deposit with the notes, as collateral security, the company’s mortgage bonds to twice the amount of the notes. This loan was for the purpose of raising money to pay interest on the mortgage bonds which had been before issued, and to put the canal in order for navigation that season. The president accordingly borrowed of George F. Lewis, 1st April, 1848, the sum of fifteen hundred dollars and seventy-five cents, and gave him the company’s note for that amount at eight months, and deposited with Lewis the company’s mortgage bonds to the amount of three thousand dollars.</p> <p>The note wás not paid at maturity, and Lewis, after notice to the company, advertised the bonds for sale, and had them sold at public auction in the city of Philadelphia. The complainant bought them at that sale, and paid the purchase money. The company having refused to pay him the interest on the bonds, and the- trustees having declined to take proceedings to compel them to do it, the complainant filed this bill for foreclosure and sale or sequestration of the canal and its income and tolls. The company and the trustees filed separate answers. They admit the execution of the mortgage, and the issuing under it of bonds to a large amount. They also admit that the resolution of 17th March, 1848, was passed by the board, and that the amount of fifteen hundred dollars and seventy-five cents was borrowed by the president of Lewis, and the giving of the note for the loan, and the depositing of the six bonds as collateral security; but they say that the bonds were not issued for any of the purposes authorized by the stockholders, and are therefore not binding on the company, but are void; that if legally issued, yet they were not legally deposited with Lewis as collateral, and he, therefore, had no right to them, and could convey none to the complainant; that Lewis was bound to sue for his debt, and had no right whatever to sell the bonds; that the complainant knew this, and had notice of the character in which Lewis held the bonds; that the sale was not bona fide, and that there was collusion between Lewis and the complainant, and that complainant ought to give up the bonds npon the company’s paying the amount of the note, which they are ready to do.</p> <p>The answer of the trustees takes the ground that the complainant could not rightfully file this bill without leave of the court first obtained. But this point was not mentioned in the argument, and is therefore supposed not to be relied on.</p>

<p>The Chancellor having been of counsel for one of the parties, the cause was beard on the pleadings and proofs before the Hon. Henry W. Green, and pursuant to his advice and opinion a decree was entered dismissing the complainant’s bill, without costs.. From that decree the complainant appeals to this court. The material issues made by the pleadings sufficiently appear in the opinion of the Chief Justice.</p>

The bill and information filed in this cause, on the 18th of June, 1851, charges that the defendants, the Newark Plank Road and Ferry Company and others, are engaged, without lawful authority, in contravention of their charter, in the erection of a ferry and piers in the navigable waters of the Passaic river, to the injury and obstruction of navigation.

<p>1. It does not belong to a court of equity to determine disputed titles to land.</p> <p>2. In the absence of fraud, or of some circumstance equivalent to fraud, there must be a trial and eviction at law, before a grantee, who has gone into possession under covenants of title and warranty, can have relief in a court of equity against his grantor, for a return of the purchase money, or of the security for it, on account of a deficiency or failure of title.</p> <p>3. A case cannot he taken out of this principle by the fact that the party is not in the position of an original complainant, seeking the aid of the court, but is a defendant, making use of a cross-hill by way of defence; the cross-bill sets up a distinct ground of relief, upon which the complainant must make out a case, or fail.</p>

<p>On the twentieth of February, eighteen hundred and thirty-seven, the appellant and John S. Mulford, administrators of Mason Mulford, deceased, made sale of part of the real estate of their intestate, for the payment of the debts of the estate, by virtue of an order of the Orphans’ Court of the county of Cumberland. At the vendue the land was struck off to one Isaac Mulford, he being the highest bidder, for the sum of -eighteen hundred dollars. On the first of March, eighteen hundred and thirty-seven, a deed was made by the administrators, pursuant to the sale, to Isaac Mulford. On the same day, and for the same consideration, he re-conveyed the land t*' the complainant.</p> <p>At the July Term, eighteen hundred and forty-seven, two-of the heirs-at-law of Mason Mulford, the intestate, instituted an action of ejectment against the complainant, for the recovery of their share of the real estate thus sold and conveyed. The complainant thereupon filed his bill in equity against the plaintiffs in the action of ejectment, praying that they might be restrained by injunction from further proceeding at law, and be decreed to confirm the title of the complainant to the said real estate; or if the Chancellor should be of opinion that the title of the complainant was voidable in equity, that, they might come to an equitable account; that the complainant might have a lien upon the real estate for the amount of the purchase money and of all permanent improvements made-by him upon the real estate, over and above the rents and profits.</p> <p>An injunction issued, pursuant to the prayer of the bill-Upon hearing, the injunction was dissolved, but the bill was-retained, no -final decree having been made upon the merits. From the order of the Chancellor, dissolving the injunction,, the complainant appealed.</p>

<p>1. As a general principle, a trustee has no power to change the character of the trust fund; and if he assume the power of converting real estate into personal, or personal into real, he acts at his peril.</p> <p>2. If a change in the character of -the fund be deemed necessary, or for the interest of the beneficiary, it should be made only with the permission and by the sanction of a court of equity.</p> <p>3. The rule applies not only to executors, administrators, guardians of infants and lunatics, and other trustees specially constituted by law, but to all trustees having charge of the property of others.</p> <p>4. And if a loss has been sustained from the trustee exceeding his authority by an unauthorized and illegal disposition of the trust funds in his hands, he is liable for the loss.</p>

<p>1. The defence of usury in a mortgage may be set up by any one claiming under the mortgagor and in privity with him.</p> <p>2. The acts of a mortgagor in assenting to a decree pro eonfesso upon the mortgage, in declining to set up a defence, or even in an express recognition of a usurious mortgage as valid, after his title in the mortgaged premises had been divested, and vested in others, cannot affect the rights of his alienees.</p> <p>3. Where the equity of redemption had been sold by the sheriff, and no decree of foreclosure was necessary against the mortgagor, he was held to be a competent witness to prove the usury.</p>

<p>1. Where a hill is filed to avoid a conveyance on the ground of incapacity by reason of extreme intoxication at the time of making, and charges that a deed, note, and warrant of attorney were procured by fraud, covin, and misrepresentation, and the charges are fully, distinctly, and unequivocally denied by the answer, the rule of law requires that they should be clearly proved, and not left to presumption or conjecture.</p> <p>2. The circumstance that questions of fact involved in the cause have been passed upon by a jury, constitutes no insuperable objection to the interference of this court. The office of a jury in a court of equity is not definitely and finally, as in a court of law, to settle questions of fact, but simply to inform the conscience of the Chancellor where he has doubt.</p> <p>3. The fact that an issue has been awarded, and a verdict of a jury rendered in the cause upon which the decree of the Chancllor is based, does not take away or limit the control of this court over the decree.</p>