author: Swayze, J.

text:
    Chauncey H. Strickland, complainant, v. National Salt Company et al., defendants.
    [Argued July 7th, 1911.
    Decided November 20th, 1911.]
    1. A certificate of indebtedness/which contains in addition to a promise to pay money/an agreement to keep free from encumbrance property on which the value of collateral, pledged for the security of the certificate depends, is_Bl>t-.a.-j.agfltiahig_ instrument.
    2. A corporation issued certificates of indebtedness equal in amount to expected dividends on the preferred and common stock for the time the certificates had to run, and pledged as collateral stock of another company acquired from the stockholders of that company to whom the certificates were issued; those stockholders at the same time pledged stock of the first corporation issued to them in exchange; it was agreed that the dividends received on the latter stock should be applied to the payment of the certificates.-—Held, that in substance this was an attempt to secure the payment of dividends whether earned or not, and was an illegal transaction.
    3. Where an act of a corporation violates an express prohibition of the statute, the receivers of the corporation may avail themselves of the illegality, although the corporation has received a benefit from the illegal transaction. Gamden and Atlantic Railroad Go. v. Mays Landing and Bgg Harbor Railroad Go., J/S N. J. Law (19 Yr.) 5S0, distinguished.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opiniob is reported in 77 N. J. Eq. (7 Buch.) 328.

      The appellants claim the amount due on a certificate in the following form:
    “,¶>.............. Jeksey City, N. J. “National Salt Company (of New Jersey) hereby-agrees to pay at the office of the American Trust Company, Cleveland, Ohio, to or order Dollars, in equal semi-annual installments, beginning . The failure to pay any installment when due shall malee all future installments become at once due and payable. Until such default shall have occurred the National Salt Company majv at any time cause its liability under this instrument to be discharged by paj-ing the amount of all future installments hereby secured to the American Trust Company, of Cleveland, Ohio, in trust to pay the same to the registered holder hereof upon demand.
    “Said National Salt Company has agreed that no contract for the purchase of exhaust steam entered into by the United Salt Company prior to October .1st, 1S99, and that no improvements erected or to be erected by the United Salt Company for utilizing said steam in the manufacture of salt shall be mortgaged, encumbered or in any manner disposed of until this obligation is paid or discharged, and that until such time no money borrowed or advanced by the National Salt Company for extending, improving or operating any property of the United Salt Company shall be made a charge upon or lien against the property or assets of the United Salt Company. And until such payment (Jr discharge shall be made, said National Salt Company has further agreed that the United Salt Company shall not otherwise than by license sell or dispose of any interest in any patented process for the manufacture of salt, now owned by the United Salt Company, or for which it shall have applied for Letters Patent prior to November loth, 1899, and that upon all licenses issued by said Salt Company there shall be paid to it a royalty of at least 25 cents per ton, settlement for whien shall be made quarterly. To jointly and ratably secure the payment of this obligation and others of like tenor, and also the performance of the foregoing agreements, said National Salt Company has endorsed in blank and deposited with the American Trust Company, of Cleveland, Ohio, as Trustee, all stock of the United Salt Company acquired by it under an option given by certain stockholders of said Company, bearing date July 20th, 1899. The terms upon which said stock has been deposited are set forth in a declaration of trust executed by said National Salt Company, dated October 2d, 1S99, and filed at the office of said Trust Company.
    “Upon surrender and cancellation of this obligation the National Salt Company will from time to time upon demand issue new agreements of like tenor for such amounts as the holder may desire, not exceeding, however, in the aggregate the amount then remaining unpaid hereon.

      “This instrument shall not be valid until countersigned and registered by the said Trust Company.
    “National Salt Company,
    “By

      “President.

    “Attest:

      “Secretary.

    “Countersigned and Registered:
    “The American Trust Company,
    “By
    This claim was disallowed by the receiver and his determination was affirmed by the vice-chancellor. The facts as. far as now material are as follows: The National Salt Company contracted for the parchase of the capital stock of the United Salt Company, an Ohio corporation. One and one-fourth shares of prel ferred stock and one and one-fourth shares of common stock of the National company and $106.25 in cash were to he exchanged for each share of the United stock; the cash to be paid in ten equal semi-annual installments on the first days of January and July of each year. Certificates, of which that of the appellant is’ one, were issued in the necessary amounts to cover the total due to each United stockholder at the rate of $106.25 per share. The amount was exactly equivalent to the dividends on the preferred stock and ten per cent, dividends on the common stock of the National eompanjr for the five years the certificates had to run. The National company deposited the United stock thus acquired with the American Trust Company of Cleveland, Ohio, to secure payment of the certificates. The declaration of trust executed by the trust company set forth that the stock was held to secure also the performance of the National company’s agreement to permit no contract for the purchase of exhaust steam entered into by the United company prior to October 1st, 1899, and no improvements erected or to be erected for utilizing said steam to be in any manner mortgaged, encumbered or disposed of until the certificates were paid or discharged, until which time no moneys borrowed or advanced by the National companj^ for extending, improving or operating the property of the United company were to be made a charge upon or lien against the property or assets of the United company. The deposited stock was also to.secure an agreement of the National company that until the certificates were paid or discharged, the United company (which was about to pass into the control of the National company) would not otherwise than by license dispose of any interest in any patented process for the manufacture of salt then owned by the United company or for which it bad applied for letters patent prior to November 15th, 1899, and that upon all licenses issued under such patent there should be paid a royalty of at least twenty-five cents per ton. Upon performance by the National company of its agreement and upon payment of the certificates, the United stock was to be returned by the trust company ; but in case of default in payment or the violation of any of the agreements the trust company upon the demand of any holder of the certificates was to sell the stock, or so much as was necessary, to pay the amounts due upon the certificates and to satisfy and release all liens or claims upon the contracts, improvements or patented processes, and to apply the proceeds to the payment of the balance due on the certificates and the discharge of the liens and encumbrances.
    At the same time that the National company deposited with the American Trust Company its United company stock, the former stockholders of the United company deposited with the same trust company their certificates of the preferred and common stock of the National company received in exchange, which were to be held, managed and controlled by the trust company until all indebtedness of the National company upon the certificates was fully paid or discharged, but in no event later than Januaiy 1st, 1905 (that is, the date when bjr their terms they became clue) : this National company stock deposited by the former stockholders of the United company was to be held by the trust company until that time upon trust to receive all dividends and retain them until the installment next to become due upon the certificates should have become clue and payable, and then to apply the same to the payment of such installment. In short, the stock of the United company and the stock of the National company to be issued in exchange therefor were both held by the trust company to secure the payment of the certificates and the performance of the contracts against encumbering the corporate property of the United company and thereby diminishing the security for the payment of the certificates; and the dividends declared upon the National company’s stock, instead of being paid to the owners of that stock as dividends, were to be applied to the payment of the amount due to them as creditors upon certificates of indebtedness; in other words, they waived their right to receive dividends on the National stock in exchange for certificates of equal amount and agreed that their own dividends should be applied to the payment of their own certificates of indebtedness. In effect this transmuted their contingent right as stockholders to dividends into an absolute right as creditors to receive a debt.
    As a result of the complicated arrangement above detailed the National company secured possession of the corporate property of the United company and conducted the business for a time. Certain stockholders of the National company took proceedings in the Ohio courts to have the arrangement declared illegal as in violation of the Ohio Anti-trust act, and a decree to this effect was entered in the Ohio courts. At that time there was in the hands of the American Trust Company a balance of deposit on account of dividends on the National stock amounting to $42,-846.70, which was disposed of by the Ohio court, a part of it paid to the American Trust Company for its services, and the balance distributed between counsel in the suit.

      Mr. William J. Wallace and Mr. I-Ienry W. Bean (of New York), and Mr. George B. Beach {Mr. John L. Wilkie, Mr. Chester A. Jayne and Mr. Baúl Bonynge, on the briefs), for the appellants.

      Mr. Charles W. Fuller and Mr. Henry B. Twombly (of.New York), for the receivers.
   The opinion of the court was delivered by

Swayze, J.

It is unnecessary to consider many questions that were ably argued at the bar as the case can be disposed of by the determh nation of the following: First. Were the certificates negotiable? ISecond. If not negotiable, were they illegal? Third,. Is the defence of illegality open to the receivers ?

First. It is conceded that the instrument in suit is anomalous in form. It is not exactly a promissory note nor a corporate bond, both of which are negotiable. The instrument partakes of the character both of a sealed note and of a corporate bond, but contains unusual provisions which we think deprived it of the protection with which the law surrounds negotiable instruments. By the Negotiable Instruments act of 1902, it is enacted, in section 5, that an instrument which contains an order or promise to do another act in addition to the payment of money is not negotiable, and then follow four exceptions which permit certain provisions to be inserted in the instrument without affecting its negotiability. These exceptions are—first, provisions authorizing the sale of collateral securities in case the instrument be not paid at maturity, or, second, authorizing a confession of judgment if the instrument be not paid at maturity, or, third, waiving the benefit of any law intended for the advantage or benefit of the obligor, or, fourth, giving the holder an election to require something to be done in lieu of the payment of money. Although this act was not passed until after the certificates in question were issued, it was in this respect intended as a codification of the common law. Whether this contract is governed by the law of New Jersey, where it purports to have been made, or by the law of Ohio, where it was to be performed, or by the law of New York, where it is said to have been delivered, is immaterial. The New York Negotiable Instruments act was passed in 1897 and contains the same provision. The Ohio act was passed in the same year (1902), and if the certificate is an Ohio contract the common law must prevail; there is nothing to show that the common law of Ohio differed from the law of New Jersey. In any event, therefore, the rule of law applicable is that set forth in the fifth section of the Negotiable Instruments act. None of the exceptions in that section covers the present case.

The certificates in form contain a statement of an agreement on the part of the National company that no contract for the purchase of exhaust steam and no improvements erected or to be erected by the United company for utilizing said steam shall be mortgaged, encumbered or in any way disposed of; that no money borrowed or advanced by the National company for extending, improving or operating any property of the United company shall be a charge upon or lien against the property or assets of the United company, and that the United company shall not dispose of its patents otherwise than by licenses and for a royalty of at least twenty-five cents per ton. This is not a statement of the transaction which gives rise to the instrument, and therefore permissible under section 3 of the act, but a promise to do an a'ct in addition to the payment of money, and therefore under section .5 makes the instrument not negotiable. While the certificates state the agreement in the past tense, there is no other written agreement to that effect and nothing more than a similar recital in the declaration of trust by the National company and the American Trust Company. We think the mere grammatical form in which the agreement is stated is not important, and that in effect the certificate contains an agreement for the protection of the assets of the United company against encumbrances and waste, for the purpose of maintaining the value of the stock of that company held as collateral for the certificates. The agreement is couched in negative terms as an agreement not to do certain things, but that is not decisive; the object of the provision of the Negotiable Instruments act was to provide against giving the extraordinary advantages of negotiability to all sorts of agreements other than for the payment of money; and although stated in the negative form the agreement is in substance a promise to do an act within the meaning of the statute in addition to the payment of money. It is in substance a promise to keep the security free from encumbrances and of the' same value as when it was pledged. Our view of the scope of the language of the statute is confirmed by the language in which the first exception in section 5 is couched. This exception is'of an agreement authorizing the sale of collateral securities in case the instrument be not paid at maturity. The agreement in the present case authorized a sale upon contingencies other than nom payment at maturity. The certificates refer to the declaration of trust for the terms upon which the stock pledged as collateral had been deposited, and the necessary effect is to import into the certificates those provisions of the declaration of trust. McClelland v. Norfolk and Southern Railroad Co., 110 N. Y. 469; 18 N. E. Rep. 237. This is so even if the only effect of the recital in the certificates is to give notice to the holder of the provisions of the declaration of trust; for if he has notice he takes the certificates subject to the terms thereof; and since the salt company and the trust company were bound by the express terms of the declaration of trust the obligor, the obligee and his transferee who of course takes with the same notice, and the trustee are all bound. One of the provisions of the declaration of trust authorizes the sale of the collateral if the salt company violates any of the agreements. A sale of the collateral for the violation of an agreement merely intended to preserve the value of the collateral is certainly not within the exception of an agreement authorizing a sale of collateral in case an instrument be not paid at maturity, since it authorizes the sale upon a condition other than that permitted by the statute. We reach this result with hesitation because the United States circuit court of appeals in the second circuit was of a different opinion. Ingraham v. Notional Salt Co., 143 Fed. Rep. 805. It is with reluctance that we differ from that tribunal and from the eminent judge who spoke for it. The force, however, of that opinion, is weakened by the fact that the same court at an earlier stage of the proceedings had reached an opposite result. National Salt Co. v. Ingraham, 122 Fed. Rep. 40. It was suggested in the argument that the later opinion of the circuit court of appeals had the endorsement of the supreme court of the United States which had refused to review the case by certiorari. We do not understand, however, that the United States supreme court, under the act of 1891, uses the writ of certiorari as a writ of error to review every ruling of the circuit court of appeals on questions of law. It was to avoid clogging business in the United States supreme court that the act of 1891 was passed, and the court has expressly declared that it will exercise the power to review by certiorari sparingly and only when the circumstances of the case satisfy it that the importance of the question involved, the necessity of avoiding conflict between two or more courts of appeal or between courts of appeal and the courts of the state, or some matter affecting the interest of the nation in its internal or external relations, demands such exercise. Forsyth v. Hammond, 166 U. S. 506. The refusal of the court to' grant the writ of certiorari determined only that the case was not of sufficient importance to justify its review, not that the decision of the court below was correct. We have dealt with the certificate in this respect in accordance with the common law as codified in the act of 1902, for the reason that this certificate was issued prior to that act. We are not to be understood, however, as holding that no instrument can hereafter acquire the elements of negotiability unless it answers the requirements of the statute. Mr. Machen, in his excellent work on Corporations, at section 1740a, calls attention to the danger of holding that the Negotiable Instruments act prevents a further development of the law merchant; but that question is not now before us.

Second. Since the certificate is not negotiable, it is open to the defence that it was illegal in its origin. We deem it unnecessary to pass upon the effect of the decree of the Ohio court that the contract between the National company and the United company, out of which this certificate arose, was illegal under the Ohio Anti-trust act. It is enough for us that it violates section 30 of our Corporation act, which, as it stood from 1896 to 1904, covering the period when the certificate was issued, provided that no corporation should make dividends except from the surplus or net profits arising from its business, nor divide, withdraw or in an}*- way pay to the stockholders, or any of them, any part of its capital stock or reduce its capital stock except according to, the act. We do not question the right of the National company to agree to pay in cash for the United stock a sum of money equal in amount to the dividends for a certain number of years, and if that were all that the case revealed, the most that could be said would be that the directors had made an improvident bargain, but not an illegal one. The case, however, shows a different situation, for it shows that the transaction was not in fact and in substance an exchange of one stock for another with a cash bonus. If it liad been that, the stockholders of the United company' would have been entitled to receive their stock in the National company and to take from time to time the dividends thereon for their own use. Instead of doing so, they were content with a title to the National stock shorn of the right to dividends for the five years which the certificates had to run, and they put the stock out of their possession and in the hands of the trust company for the purpose of securing the payment to themselves of tire amount of the certificate they themselves held. The same object would have been accomplished by providing in the certificates that any amount paid to the stockholders by way of dividends should be credited thereon, and the object of depositing the stock of the National company with the trust company must have been to give the certificates the appearance of a debt due for part of the purchase price of the United stock when in fact they were promises to pay the amount of dividends agreed upon whether earned or not. If an arrangement of this kind is legal, the thirtieth section of the Corporation act has no vital force, for to evade it, a corporation need only issue certificates of indebtedness covering the dividends which the parties may expect during the whole life of the corporation, and thus capitalize into a present debt-the hopes of future earnings. We think such a transaction is in contravention of our statute.

Third. It is said, however, that the National company got control of the corporate property of the United company and ought not now to escape from payment of the price. This does not fully state the' situation. In form, at least, the National company acquired only the stock of the United company'', and even this it immediately pledged as collateral, and its own stock, which it gave in exchange, also was immediately pledged as collateral by the stockholders of the United company. The exchange of stock was, therefore, still an executory agreement, and the National company was not to receive the TTnitecl stock, and the stockholders of the United company were not to receive the National stock until payment of the certificates. But, although in form, the transaction was still executory, it is fair to the appellants to concede that as a result of the transaction the National company got control of the corporate assets and property of the United company, and although in form the only change was in ownership of the stock of the United company, in substance, there was a change of control of that company’s assets. Under such circumstances, the appellants urge that the doctrine approved in this court, in Camden and Atlantic Railroad Co. v. Mays Landing and Egg Harbor Railroad Co., 48 N. J. Law (19 Vr.) 530, is applicable. We think this case is distinguishable. The doctrine of that case is applicable only to ultra vires contracts in the proper sense of the term-—that is to say, contracts that are beyond the statutory powers of the corporation. It is not applicable to contracts expressly prohibited by statute and contrary to the public policy of the legislature. The opinion of the court clearly recognizes the distinction, for in speaking, on page 564 of the case of Kent v. Quicksilver Mining Co., 78 N. Y. 159, Mr. Justice Van Syckel says: “The propositions maintained by the court Avere that acts of a corporation, which are not, per se, illegal, or malum prohibitum, or contrary to public policy, but which are ultra vires, affecting only the interests of stockholders, may be made good by the assent of shareholders, so that strangers to them, dealing in good faith with the corporation will be protected in reliance on those acts.” On page 568 he distinctly says: “Transactions which are immoral, illegal, forbidden by statute, or contrary to public policy, are not embraced in this discussion; they cannot furnish the basis for a legal cause of action.” The present case comes Avithin the class of transactions forbidden by statute, and therefore illegal and contrary to public policy, so that it is outside even of the liberal rule of the case just cited. The case of Chapman v. Iron Clad Rheostat Co., 62 N. J. Law (33 Vr.) 497, a decision of the supreme court, Avent upon the ground that under our act a corporation might purchase its own stock. The remark by Mr. Justice Dixon at the close of the opinion nmst be read in the light of what he had previously said. It is plainly no authority in case of an act forbidden by the express terms of the statute.

We think, therefore, without expressing an opinion as to the other matters dealt with in the opinion of the learned vice-chancellor, that his decree should be affirmed, with costs.

For affirmance—The Chief-Justice, Garrison, Swatze, Trenchard, Parker, Bergen, Vooritees, Kaltsgh, Bogert, Vredenburgi-i, Congdon, Wi-iite—12.

For reversal—None.


source: Caselaw Access Project

author: Swatze, J.

license: Public Domain

text:
    State Council of the Junior Order United American Mechanics v. National Council of the Junior Order United American Mechanics.
    [Argued March 24th, 1908.
    Decided June 15th, 1908.]
    1. The supplement of 1907 to the act respecting the court of chancery (P. L. WOf p. J/52) applies to appeals from decrees made prior to the passage of the act and requires that such appeals be made within six months from the passage of that act, or if not made within that time, then within one year from the date of the decree.
    2. An act changing the time for taking an appeal from a final decree in chancery from three years to one year, which is made applicable to decrees antedating the act, but allows six months after the act takes effect for appealing is a valid enactment.
    On motion to dismiss appeal.

      Mr. A lan II. Strong, for the motion.

      Mr. Barton B. Hutchinson, opposed.
   The opinion of the court was delivered by

Swatze, J.

The final decree from which this appeal was taken was made August 16th, 1906. The appeal was taken January 20th, 1908. It was taken within the three years allowed by law at the time the decree was made, but not within the time allowed by 'the act of 1907. P. L. 1907 p. 452. That act requires appeals from final decrees to be made within one year. Section 2 provides that the act shall not affect the right to appeal from final decrees made prior to the time it took effect (May 15th, 1907), provided appeal be made within six months after that date.

The act of March 27th, 1874, relative to statutes (Gen. Stat, p. 3194 pl. 27), prevents the amendment of 1907 from affecting the right of appeal as it had' theretofore-existed, unless the legislature has, either in express language or by implication so strong as not to be resisted, indicated the legislative purpose to supersede this rule of statutory construction. Barnaby v. Bradley & Currier Co., 60 N. J. Law (31 Vr.) 158, 161, 162. The proviso in the second section of the act of 1907 indicates clearly that the right of appeal from final decrees made prior thereto is affected by the act unless the condition requiring appeal within six months is complied with. The fact that the appeal must be taken within that time to preserve the right of appeal, amounts in itself to a limitation of tire time as to all decrees which were made six months or more prior to May 15th, 1907. As to those made within six months prior to that date the new act, by section 1, itself allows one year, and is by its terms applicable if the appeal is not taken before November 15th, 1907.

The only question that can be raised is as to the validity of the legislation as thus construed. The effect is to create three classes of cases—first, appeals from decrees made prior to November 15th, 1904. As to these, the appeal might still be made within the three years allowed by the original act; second, appeals from decrees made between November 15th, 1904, and November 15th, 1906. As to these, the appellant is allowed the six months after May 15th, 1907, and his time for appeal varies from a year and a day to three years; third, appeals from decrees made between November 15th, 1906, and May 15th, 1907. As to these, the appellant has the 3rear allowed by section 1 of the amending act. But these differences arise not from any distinction in the act itself, which applies alike to all eases, but to the different state of facts to which it becomes applicable. The act is therefore general.

By our constitution the judicial power is vested in a court of errors and appeals in the last resort in all causes as heretofore, and in certain other courts. At the time of its adoption, there was an appeal from the court of chancery to this court by virtue of the act of June 13th, 1799. Pat. L. pp. 428, 434 $ 59. There can be no doubt that this right of appeal is secured by the constitution. Harris v. Vanderveer's Executor, 21 N. J. Eq. (6 C. E. Or.) 424. Like the right of the supreme court to review proceedings of inferior tribunals, by certiorari, the right of this court to review decrees of the court of chancery may be regulated by prescribing a reasonable time within which the appeal may be taken. Traphagen v. West Hoboken, 39 N. J. Law (10 Vr.) 232, 237; affirmed, 40 N. J. Law (11 Vr.) 193. Our statutes limiting the time for appeals and writs of error and certiorari in different classes of cases are familiar instances of the exercise of this power by the legislature.

It is also within the power of the legislature to enact statutes which shall affect these existing rights of appeal. Cooley Const. Lim. 473; Smith v. Packard, 12 Wis. 371; Rupert v. Martz, 116 Ind. 72; 18 N. E. Rep. 381. A somewhat similar case is Ex parte McCardle, 7 Wall. 506. In the analogous case presented by a change of the .period for limitation of actions, it is well settled that such statutes are not unconstitutional, although they may affect existing rights if a reasonable time is given for the commencement of an action before the bar takes effect. Terry v. Anderson, 95 U. S. 628.

Logically, no other result seems possible. Since the legislature may prescribe the time within which an appeal may be taken, it may well fix any time after the passage of the act, provided it is not so short as'to amount substantially to a denial of the right of appeal. That six months is a reasonable time cannot be denied. It is much more than the time which has long been fixed by statute for taking an appeal from an interlocutory decree, and twice as long as the time allowed for appealing from a final decree where a lis pendens has been filed.

\7e think the statute is not open to the objections that have been urged, and the appeal must be dismissed, with costs.


author: Parker, J.

text:
    Winfield S. Ashby, by next friend, complainant-respondent, v. Frederick P. Yetter, defendant-appellant.
    [Submitted July 10th, 1911.
    Decided November 20th, 1911.]
    1. Complainant, while suffering from nervous prostration and incompetent to manage his business affairs, was induced by misrepresentations of defendant to convey real estate and personal property to him for a grossly inadequate consideration.—Held, that such conveyance was procured by fraud and was properly set aside.
    2. Under the circumstances of this case, complainant’s right to a re-conveyance and accounting hold, not barred by laches.
    On appeal from a decree advised by Vice-Chancellor Walker, who filed the following opinion:
    The bill was filed by Winfield 3. Ashby, who alleged that during January, 1902, he was the owner of certain real estate and personal property at Atlantic City, New Jersey; that during that month he became broken in health and a sufferer from nervous prostration and melancholia, and became mentally infirm and unable to grasp business situations, and wras thereafter for a long space of time mentally and physically incapacitated and totally unfit to look after his property and business; that in this situation the defendant, Yetter, requested the complainant to convey to him his real and personal property in Atlantic City, representing that he would take charge of the same and conduct and manage it for the complainant and account to him for the proceeds of the property. The bill was filed March 6th, 1907. Thereafter Ashby became insane, and on September 30th, 1907, an order was made appointing Jessie B. Ashby, the complainant’s wife, as his next friend, to prosecute the suit. Ashby, himself, being insane, -was not a witness.
    Mrs. Ashby testified that Yetter came to the house several times to see her husband and she was present at one conversation in which Yetter told her that he realized that her husband was a sick man and not able to take care of his affairs, and he (Yetter) was trying to persuade him to turn them over to him so that he could look out for them until such time as he (Mr. Ashby) would be able to take them up again.
    The result of negotiations between Ashby and Yetter were that Ashby conveyed all his Atlantic City property to Yetter by three deeds for the real estate, and a bill of sale for the personal property, March 18th, 1902. It is significant that each deed recites a consideration of one dollar, and the bill of sale, one dollar and other valuable consideration. On the same day Yetter conveyed to Ashby three certain building lots on the outskirts of Philadelphia, the consideration being expressed to be one dollar and other good and valuable consideration. The equities in the real estate conveyed by Ashby to Yetter amounted, approximately, to $10,000, and the personal property to approximately $2,400, making in all, approximately, $12,400, which Yetter took over into his possession and control. The lots conveyed by Yetter were worth something between $500 and $900, the latter figures at the very outside. Ashby became decidedly aberrated after the transaction, and Yetter knew it, and this, to my inind, explains how it was that Yetter wrote Mrs. Ashby on July 8th, 1902, nearly four months after he had taken title, for permission to ship certain of the personal property he had become possessed of from Mr. Ashby, to a Mr. MeCarroll. This, to my mind, is inconsistent with Yetter’s present claim of ownership in himself of the property acquired through the Ashby conveyances, and his, Yetter’s, attempted explanation onty confirms that belief.
    The defendant lays stress upon a memorandum written and signed by Mr. Ashby on March 8th, 1902, twenty days before the deeds passed, in which Mr. Ashby says he that day sold to Mr. Yetter all his interests in Atlantic City. The explanation is that the note was an authority to Yetter to go to Atlantic City and take charge of Ashby’s business in advance of the conveyances, and is entirely consistent with the complainant’s claim that the transfer of property was in trust. Besides the probabilities of the ease being entirely with the complainant, Yetter’s appearanee on the witness stand and manner of testifying were decidedly against him.
    The conveyances being entirely regular and valid on their face, import legality and the burden is upon the complainant to overcome that presumption. To my mind the complainant has discharged the burden of proof. I hold in this case that the testimony does not warrant a finding that the complainant was non compos mentis at- the time he made and consummated the transaction, but it shows that he was suffering from a severe mental disorder and that his unfortunate condition and the mental weakness resulting from it was the moving cause of his putting his property in the hands of Yetter to manage for him. I am persuaded that the conveyance by Yetter to Ashby was by way of security for the faithful performance of the trust he assumed and was not a consideration for the conveyance to him by Ashby of his property.
    A decree for a reconveyance and accounting will be made in accordance with the prayer of the complainant’s bill.

      Messrs. Wescoti & Wescoti, for the appellant.

      Messrs. Garrison & Voorhees, for the respondent.
   The opinion of the court was delivered by

Parker, J.

We reach the same result as that to which the learned vice-chancellor was led by his consideration of the evidence, but for reasons not wholly identical with those expressed by him. There is some difficulty in resting the decree for reconveyance on the terms of an express trust, because that trust was not evidenced by any writing as required by the third section of the statute of frauds. McVay v. McVay, 43 N. J. Eq. (16 Stew.) 47; Newkirk v. Place, 47 N. J. Eq. (2 Dick.) 477; Aller v. Crouter, 64 N. J. Eq. (19 Dick.) 381, 391; Coffey v. Sullivan, 63 N. J. Eq. (18 Dick.) 296. The theory of \ resulting trust arising from non-pajonent of consideration was not relied on, and would have been untenable. Hogan v. Jaques, 19 N. J. Eq. (4 C. E. Gr.) 123; Coffey v. Sullivan, supra. It may be that as there was no objection to the parol evidence tending to show an express trust, and that evidence, if properly to be considered, was adequate to support such a finding, the decree may be upheld on this ground, though in Coffey v. Sullivan this court intimated that the trust itself would be invalidated, and not merely the parol evidence to establish it. 63 N. J. Eq. (18 Dick.) 304.

We need not go further into this branch of the cause because we are satisfied on a reading of the evidence that the conveyances from Ashby to Yetter were procured by fraud, and that that procurement was facilitated by Ashby’s mental condition at the time. Ho was a nervous -wreck with his mentality impaired; he had been in the insane asylum some years before, and shortly after the bill was filed went there again. Defendant, a shrewd and apparently a somewhat unprincipled real estate speculator, seeing Ashby’s condition, took advantage of it, and to increase his anxiety and worry and thus induce him to get rid of his propertrr, told him that there were judgments against him, that he could not show himself in Atlantic City, and that the mortgages were being foreclosed, or about to be foreclosed.

The grossly inadequate consideration is of itself evidence of fraud. Worth v. Watts, 76 N. J. Eq. (6 Buch.) 299, 305. Superadding the misrepresentations of fact we have no difficulty in finding that the deeds and bill of sale were fraudulently procured, and should be set aside.

The effect of the fraudulent procurement was to create a trust ex maleficio in favor of complainant. Pom. Eq. Jur. § 1053 et seq. Eeconveyance and accounting are of course incidental to such a trust, and hence were properly decreed.

The defence of laches is made but is without merit. It is true that five years elapsed before the filing of the bill. But during all that time Ashby’s mental incapacity persisted, finally culminating in insanity; and for a great part of it Yetter’s behavior was such as to. justify complainant’s wife in the belief that Yetter was dealing with the property as a trustee. With the husband mentally incompetent and the wife deceived as to the defendant’s position in the matter, laches may well be excused, especially as Yetter’s position has not yet been changed in any respect that cannot be fully compensated for on the accounting, and by a reconveyance of the Philadelphia lots.

The decree of the court of chancery will be affirmed.

For affirmance—The Chief-Justice, Garrison, Swayze, .Trenchard, Parker, Bergen, Voorhees, Kalisch, Bogert, Vredenburgii,- Congdon, White—12.

For reversal—None.


author: Bergen, J.

text:
    Andrew Henry and Mary L. Prince, executors, &c., of Frederick A. Prince, deceased, complainants-appellants, v. James L. Thompson, administrator of Sarah E. Moody, deceased, and James A. Gordon, trustee, defendants-respondents.
    [Submitted July 10th, 1911.
    Decided November 20th, 1911.]
    Where two contesting claimants to the proceeds of a life insurance policy consent that the insurance company pay the fund to one, without thereby prejudicing the right of the other to enforce his claim thereto, and where the rights of each depend upon the interpretation of a written contract which does not require reformation, and no discovery is called for, no ground for equitable relief exists. The recipient has a fund which the other claims is unlawfully withheld from him, and, if he is right, he can recover whatever is due him in an action at law, for either the possessor is entitled to retain the fund or bound to pay it over to the other, and this situation presents no ground of equitable jurisdiction.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 78 N. J. Eg. (8 Buch.) 1J/S.

    The Washington Life Insurance Company, by a policy duly executed and. delivered, insured the life of Frederick A. Prince, to the extent of $10,000, payable on his death to his wife, Mary L. Prince, for her sole use, if living, and if not living, to her and her husband’s children or their guardian, if under age, for their use, or if no children living then to the executors or administrators of the said Frederick A. Prince. The husband survived his wife, and they had no children, but in 1889, Mary L. Prince assigned all her right, title and interest in the policy to Sarah E. Mood}r, and guaranteed the validity and sufficiency of the assignment and warranted the title to the policy. The husband consented to the assignment which, was expressed as follows: ■ “I hereby consent to the assignment of the within policy by my wife.” Sarah E. Moody died January 2d, 1907, and Frederick A. Prince January 15th, 1909, and thereafter, contesting claims being made by the respective representatives of Mrs. Moody and of Mr. Prince, the insurance company refused to pay, unless it was released by both parties from further liability. The claimants then consented to have the money paid to the executors of Frederick A. Prince, and to release the company, subject to the terms of a written agreement made by the claimants that the consent to such payment should not be construed as affecting the right of the administrator of Mrs. Moody to the moneys paid, but that it should be received by the complainants, and by them deposited with the Jersey City Trust Company, there to remain until a court of competent jurisdiction should finally determine which of the claimants was legally entitled thereto. The money was received by the executors of Frederick A. Prince and deposited with the trust company which, with the consent of the parties, issued and delivered to James A. Gordon, as trustee, a certificate of deposit for the amount. Thereupon the executors of Frederick A. Prince filed their bill of complaint in this cause, claiming that under the policy the wife’s interest was contingent upon her surviving her husband, and as she did not, that no right to the fund passed to her assignee, and prayed that they be decreed to be entitled to the fund. The administrator of Mrs. Moody answered and substantially admitted the charges set out in the bill of complainants, but denied that the complainants were entitled to relief, and prayed to be dismissed. The defendant also answered bjr way of cross-bill, claiming that Mrs. Moody was the sole beneficiary under the policy, and that the consent to the assignment by her husband estops him, and therefore his representative, from claiming the fund. The vice-chancellor heard the case and advised a decree that the complainants’ bill be dismissed, and that the defendant, the administrator of Mrs. Moody, under his cross-bill, was entitled to the fund, which Gordon, the trustee, was directed to immediately pay over to the administrator. From this decree the complainants have appealed.

      Mr. James A. Gordon, for the appellants.

      Mr. Hiram O. Glance, for the respondents.
   The opinion of the court was delivered by

Bergen, J.

The situation resulting from the facts stated is that two antagonistic claimants to the fund due from the insurance company agreed that payment might be made to one, both releasing the company, upon a stipulation between the two claimants that such payment would not affect the legal rights of either party to the fund, so that instead of three parties to the controversy there remained but two, one of whom had the fund, which the other claimed, and if the claim was supportable, it could be enforced by an action at law for money had and received to his use. There are no equities to administer or enforce. If the defendant in this proceeding is entitled to the fund, he could have brought his ac-' tion at law against the insurance company, and if that company had any reasonable doubt as to the rights of the respective claimants, it could have filed a bill of interpleader, but when the claimants agreed to discharge the company upon payment to one of them, under an agreement that the rights of the other should not be affected by such payment, no possible ground for equitable relief arises from that condition. Neither can call upon the other to interplead, and no trust requiring equitable interference has been created by the acts of these parties. The defendant has consented that the insurance company may pay the fund to the complainants if his right of action be preserved—that is, he cannot proceed to enforce his claim against the company, but may against the other claimant who is put in possession of the fund, subject to such lawful claim of the other as he may be able to establish. He may demand it, and upon refusal bring his action at law to recover the money which he claims the complainants refuse to pay over, and the proceeding instituted in the present cause amounts to little more than an ordinary collection suit. The contract in question presents no feature subjecting it to equitable cognizance, no attempt is made to reform it, nor is any discovery prayed, and the defendant has a complete remedy at law. The learned vice-chancellor dismissed the bill of complaint because lie determined that the fund belonged to the defendant, and then advised a decree according to the prayer of the defendant’s cross-bill. He was clearly right in dismissing the bill of complaint, not for the reason given by him, but because it disclosed no ground for equitable relief, but when he advised a decree in favor of the defendant upon the cross-bill, we think he assumed a jurisdiction which did not exist.

The decree in favor of the defendant will be reversed, and the cause remitted to the court of chancery to be there disposed of in accordance with the view herein expressed.

For affirmance—None.

For reversal—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Kalisch, Bogert, Yredenburgh, Congdon, White—11.


author: Vredenbuegh, J.

text:
    Frederick W. Paul et al., complainants-respondents, v. Washington Wilson et al., executors, &c., defendants-appellants.
    [Argued July 6th, 1911.
    Decided November 20th, 1911.]
    1. A testator, while managing his factory building upon his land, had contracted certain debts for coal, supplied to him bjr complainants in carrying oru his factory business. By his will he- directed the business to be continued after his death under the management of his son, and appointed him, with two others, his executors. His son, and his executors, continued' the business after his death in the factors', and contracted debts for coal furnished the factory by the complainants to carry on the business, and it was held that the latter debts (the executors having defaulted in their payment) were under well-settled principles chargeable, in equity, as liens against the land; but that the debts contracted'by the testator for the coal, furnished before his death, in the business, by the complainants, were payable out of the general assets of his estate, for the collection of which the complainants have an adequate remedy at law.
    2. The testator’s intention, clearly marked throughout his entire will, was, that the net rents received by his trustees from the continuation of his factory business should be set apart by them as a sinking fund, in trust primarily, to discharge his mortgage debts, and that his other, or general debts, should be satisfied out of his personalty in exoneration of the rents of his factory property.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery.

      Mr. S. Howell Jones, for the appellants.

      Mr. Joseph N. Tuttle, for the respondents.
   The opinion of the court was delivered by

Vredenbuegh, J.

The original decree of the chancellor brought up by this appeal was made November 10th, 1910., and adjudged that the defendants forthwith pay to the complainants the sum of $1,626.55, for coal furnished by them for the use of a certain factory building in Newark, New Jersey, called the “Wilson Building,” standing upon premises (described in the bill of complaint) which had been owned by the defendants’ testator, Edward Wilson, deceased.

The defendants having failed to pay the sum' so decreed to be paid by them, a decretal order was signed on February 16th, 1911, by the chancellor, pursuant to leave reserved on the foot of the decree, adjudging that sum to be a lien and charge upon'the premises described in the bill of complaint, and that the same be sold to satisfy unto the complainants the said amount of money, together with interest, costs and counsel fee. From this decretal order of February 16th, 1911, the defendants have appealed upon grounds specified in their petition of appeal, to the effect that the said total sum of $1,628.55 was not chargeable upon, and should not have been decreed to be a lien upon said lands; and upon further grounds to the effect that the sum of $488.40, portion of said total sum, was a debt contracted by the testator during his lifetime, and was a general debt of the deceased testator, to be paid out of his estate by his executors in the same way as any other of his contract debts.

The learned vice-chancellor, who advised this decree and decretal order, expressed himself in his memorandum filed in the cause, as governed by the decision of the court of chancery in Ferry v. Laible, reported in 31 N. J. Eq. (4 Stew.) 566, and on appeal to this court in 32 N. J. Eq. (5 Stew.) 791. He was of the opinion that the complainants’ right; as creditors, to resort to the land invested in the business, by the direction of the testator’s will for the payment of debts created in the business, was established by the decision he cited.

We concur with the view expressed by the vice-chancellor, and with his conclusion, that the bills for coal furnished by the complainants for the carrying on of the business in the Wilson Building, to the extent the coal was contracted for and furnished after testator’s death, should be imposed as a lien on the premises; but differ with his conclusion so far forth as he held that the bill for coal furnished by the complainants before testator’s death, for the carrying on of said business, and. which had been contracted by testator before his death (amounting to $488.40), was properly chargeable in equity as a lien against the premises.

The decision of the court of chancery, to which he refers (to the extent it was affirmed by this court), held, that where a testator directs his executors to continue his business after his death, and they incur debts in its prosecution, that then, so much of his assets as he has directed should be embarked in the business, after his death, will stand charged in equity for the payment of the debts of tire business.

On the appeal of this case to this court, it was also here determined that such executors carrying on testator’s business after his decease, are personally liable for the debts so contracted, and that trade creditors have, for reasons expressed in the opinion, an equitable right to resort to the property engaged in such business, for the pajment of their claims arising out of it, if their remedy against the executors be unavailing. It should not escape notice that in the opinion of this court in that case it was declared that the inability of the executors to personally meet the com-: plainants’ claim must appear by the evidence (if not conceded by the parties) before resort could be had to the property embarked in tire business. In the case now before us there is no direct averment of the insolvency of the executors, individually, made in the bill, nor is such insolvency disclosed in the evidence taken at the hearing before the vice-chancellor. The testator’s estate was not declared insolvent by the executors, and there is in the case no allegation, or suggestion even, of any special reason for the interference of equity, in order to compel joayment of testator’s general debts. It nrnst therefore be assumed that the complainants’ remedy at law is adequate so far as the collection of the general debts of the testator out of his estate is concerned, and no reasoh is perceived why the complainants should not have taken the ordinary course of procedure required for the collection of the debt of $488.40, contracted by the testator before his death, out of the general assets of his estate. Rutherford v. Alyea, 54 N. J. Eq. (9 Dick.) 411; Loehnberg v. Loehnberg, 63 N. J. Eq. (18 Dick.) 496.

There are other considerations which lead us to the conclusion that the decree, to the extent that it charges the $488.4:0 item to be a lien upon the land, is erroneous.

The will discloses no testamentary intention that any other than the “current” expenses of the posthumous management of the testator’s property in the business in question should be incurred by the executors. The only clause of the will having an important bearing upon this subject is the seventh. By that the testator orders and directs that his real estate, known as the Wilson Building, with all the buildings, engines, machines and other appurtenances shall be continued under the management of his son, Washington Wilson (one of the executors), who shall receive out of the rents $2,000 per year, as compensation for his services as manager, to be charged as a current expense of the property, and lie adds:

“I direct that my trustees! after providing' out of the rents of said works for the proper maintenance and repair of the property and for taxes, insurance, compensation of manager aforesaid, and other current expenses, shall first apply the net rents to the payment of the interest on all the mortgages which may be outstanding on my property at the time of my decease, whether in Newark, N. J., or elsewhere, and secondly, two-thirds of the residue of said net rents shall be paid to my wife during her life so long as she shall remain unmarried, but not exceeding $3,000- in any one year, and the remainder shall be set apart annually as a sinking fund and applied when deemed proper, to discharge the principal of mortgages made by me upon lands and buildings whereof I shall die seized, wherever situate, in England or America.”

A will speaks only from and after death, and the property tints devoted by the testator to the indicated business, was not certainly intended by him to be burdened -with any expense, other than the current or running expense of the management, to b e incurred after testator’s death; nor to expenses incurred by him in its prior management. He refrains from any allusion here either to his general debts or to those contracted by him in the business while under his own management. As to these he had, bj' the very first clause of his will, expressly directed that his debts should be paid out of his personal estate, and I quote its words, viz.:

''First. I direct my debts to be paid out of my personal estate, as soon as practicable after my decease, except my debts secured by mortgages made by me upon my real estate which I direct my executors to pay out of the income of my estate in manner hereinafter specified.”

He expressly distinguishes, by the above clauses, and a subsequent clause of his will (to be referred to hereafter), his mortgage debts from his other debts; the former he intends shall be paid from the rents of his property devoted to the specified business, while the latter he intends shall be satisfied from his personalty alone. The legal maxims, “Fxpressio unius est exclusio alterius" and “Fxpressum fácil cessare taciturn ” apply pointedly here. To burden the rents of the Newark property with the payment of the testator’s general debts would, it seems to me, be flying in the very teeth of his expressed intention, and a court of equity would properly refuse to entertain such a claim unless it appeared there were no other assets or property of testator from which such debts could be satisfied.

Again, to impose upon the Newark property, especially the burden of paying testator’s general debts, would result to the prejudice of the interests of testator’s two daughters, who are residuary legatees under the sixteenth and ninth clauses of his will, and are not parties to the suit. The latter clause reads:

“Ninth. And if there be any income remaining after the satisfaction of nil my mortgages, and of the annuity of $4.000 per year, to my wife, my executors and trustees shall divide the residue, if any, equally between my two daughters, Johannah (Joy) Wallace and Christian May Loveland, to each one-half payable quarterly, until tlie death or remarriage of my wife.”

It .seems unnecessary to extend this opinion farther upon these lines. The result is that the decree should be reversed for the purpose of modification so as to conform to the views above indicated.

For affirmance—Swayze, Bergen, Bogert—3.

For reversal—The Ci-iiee-Justice, Garrison, Parker, Voorhees, ICalisch, Vredenburgti, Congdon, White—8.


author: Vroom, J.

text:
    Francis E. Larkin et al., respondents, v. James H. Wikoff et al., appellants.
    [Argued July 8th, 1911.
    Decided October 18th, 1911.]
    On dismissal of a bill to enjoin trustees from selling property in disregard of the terms of the trust deed under which they held it, no question as to construction of the deed being involved, but the only question being whether the trustees were about to exceed the power given them, and the court holding that where power is given to trustees to do a particular thing (they being constituted the judges and fully authorized to decide the matter) the court has no jurisdiction to command them as to the exercise of that power, provided their conduct be bona fide in all respects, costs and counsel fees may not be allowed complainants, nor costs to the attorney-general, who, as representative of the public, was joined as defendant, instead of as complainant.
    On appeal from a decree of the court of chancery advised by Yice-Chancellor Walker, whose opinion is reported in 77 N. J. Eg. (7 Buch.) 589.

    The bill in this case was filed by certain residents of Cedar Grove, in tiie county of Mercer, who alleged that they and their families were members of and contributors to the support and maintenance of the respective churches and denominations named in a certain deed of trust made by Paul Tulane to the trustees of the First Presbyterian Church at Princeton.
    By this deed the property was conveyed to the trustees to be used for gospel preaching and religious services free to all people of the neighborhood. Mr. Tulane also placed in the hands of the trustees a sum of money to be invested, the income to be appropriated in defraying the expenses of maintaining free preaching and religious services in the church. Power was given to the trustees to decide upon the discontinuance of the church services whenever it seemed clearly expedient so to do, with full power to sell the land and building and to hold the proceeds of sale, with other funds, for a certain other trust, the said trustees being the judges and fully authorized to decide upon the discontinuance upon all or any cause whatever. The prayer of the bill was for an injunction to enjoin the trustees from selling or conveying away any part of the property. Vice-Chancellor Walker, before whom the cause was heard, advised that the prayer of the complainants for an injunction be denied and that the bill be dismissed. He further advised that as the proceeding was in good faith and required the construction of a trust instrument under which the property in question was held, that it was a ease for the allowance of costs and counsel fees to both parties.
    From the decree of dismissal the complainants appealed, and that decree has been unanimously affirmed by this court.
    From so much of said decree as awarded costs and counsel fees to the complainants and the costs of the defendant, the attorney-general, out of the trust estate, a cross-appeal was taken by the defendants, James H. Wikoff and others, trustees, &c.

      Mr. John V. B. Wicoff, for the appellants.

      Mr. Adrian S. App&lget, for the respondents.
   The opinion of the court was delivered by

Vroom, J.

The only question to be decided on this appeal is whether the vice-chancellor was warranted in advising the allowance of costs and counsel fees in this cause. There was a decree of dismissal from which the complainants appealed, and as above stated, that decree has been unanimously affirmed by this court.

There can be no doubt as to the general rule in the courts of this state, that costs will be awarded a complainant out of the estate on the dismissal of his bill when, as executor, he comes into a court of equity to settle the construction of the will, or for direction as to his duty in regard to the mode of carrying its provisions into effect. Whitenack v. Stryker, 2 N. J. Eq. (1 Gr. Ch.) 8; Van Houten v. Pennington, 8 N. J. Eq. (4 Halst.) 745; Cox v. Wills, 49 N. J. Eq. (4 Dick.) 573.

Tlie same rule prevails in tlie English court of chancery. Rashley v. Masters, 1 Ves. 201; Jolliffe v. East, 3 Br. Ch. Rep. 25. See, also, Dan. Ch. Pr. 1426; 1 Redf. Wills 433.

It cannot be pretended that the bill in this case was filed for the construction of a will or of a trust thereby created; it was only for an injunction to restrain, certain trustees from selling-property held by them, in disregard of the terms of the trust deed; it involved no question as to the construction of the deed creating the trust, the only question being whether the trustees were about to exceed the power given them, and the court below held, “where power is given to trustees to do a particular thing, they being constituted the judges and fully authorized to decide the matter, the court has no jurisdiction to command them as to the exercise of that power, provided their conduct be Iona fide in all respects.”

Again, the bill was not one filed by the trustees to ask and receive the aid and direction of a court of equity in the proper exercise of their trust, but even had it been, and reasonable ground had been shown to exist for coming into court for such direction, it by no means follows that costs would have been allowed such trustees as complainants, out of the trust funds, on the dismissal of their bill.

The English cases are all in accord with Dan. Ch. Pr. 1426, where, in referring to the exception to the general rule in the allowance of costs to the complainant on the dismissal of his bill, it is said that “the rule applies only to cases under wills; it does not apply where difficulties arise upon the construction of deeds.” Hampson v. Brandwood, 1 Mad. 208; Patrhcing v. Dobbins, Kay 1, 15.

Xo case can be found in this state where costs have been awarded a complainant on the dismissal of his bill for the construction of any other kind of instrument than a will.

This bill not having been filed by the trustees for the construction of the trust deed, it is not necessary now to decide what course this court would take had it been and were the question properly before it.

The decree allowing costs and counsel fees and the costs of the defendant, the attorney-general, should be set aside and reversed.

For affirmance—None.

For reversal—The Chief-Justice, Garrison, Swayze, Trenchakd, Parker, Bergen, Voorhees, Bogert, VredenBURGH, 7ROOM, CONGDON—11.


author: Per Curiam.

text:
    The Mayor and Aldermen of Jersey City, appellants, v. Jersey City Water Supply Company, respondent.
    [Argued March 22d, 1911.
    Decided July 11th, 1911.]
    On appeal of the mayor and aldermen of Jersey City from a decree confirming a master’s' report advised by Vice-Chancellor Stevens, who delivered the following opinion:
    I do not think that the decree as it stands should be so modified as to direct the payment of the $500,000 reserved. After giving the contract of July 8th, 1901, considerable study, I am not able to come to the conclusion that the release of May 12th, 1909, is a sufficient compliance with its terms to entitle the water company to the immediate payment of the money. To so hold would be to nullify the general intent of the parties as expressed in the instrument itself. But I do not think the question should be finally passed upon at this time. If the contention of the water supply company be correct, it would seem that the liability of the Fidelity and Deposit Company, the surety, would or might be considerably increased. If so, the company is interested in the question and should be beard. I cannot find among the papers any copy of the condition of its bond, but it would seem from the terms of the contract of July 8th, 1901, that it is under some liability for the flow of the Rockaway up to the limit of seventy million gal-Ions per diem. The question has been informally presented, and without any issue framed. In a question of such importance, the proper course would appear to be to present the matter by bill and leave to file it should be reserved.
    As to the Boonton drain, it appears from the master’s report that there was put in evidence before him a contract dated October 11th, 1909, between the Morris Canal and Banking Company, and its lessee, the Lehigh Valley Bailroad Company, of the one part, and the Jersey City Water Supply Company of the other. The master says that notwithstanding the license thereto given to conduct and maintain the drain and pipes, he is constrained to report the cost of intercepting sewers for Boonton, because the contract, by its provisions, will cease to be binding in case navigation shall be abandoned, either from legislative action or from any other cause. It is a matter of common knowledge that such abandonment has been seriously considered for years past. The evidence in this cause shows it to have been. By the charter of the company, the state has the right to take the canal at its fair value in 1924, and if not taken then, it and its appurtenances will vest in the state in 1974. Boonton is largely built on a steep hillside which sinks abruptly into the Bockaway river. It is so near the reservoir that, from the outset, it has been conceded on all sides that a drain is necessary. The intercepting drain above referred to is designed to catch any polluting matter that would otherwise find its way into the stream.
    As under its contract the water supply company is bound to give a good title to its plant, of which this drain is an important part, it would seem clear that it does not fulfill its obligation when it gives a drain subject to alteration at the pleasure of the canal company, the title to which, as above stated, may expire at any time. On the other hand, it would seenr unjust to withhold from the water company indefinitely, the cost of the intercepting sewers that may never have to be substituted. This cost the master has reported to be $58,'300. I think that if the water company will give bond with sufficient surety to reimburse the city, up to this amount, for what it may be obliged to’ expend, when the drain shall c-easo, for any lawful reason, to be- as efficient as it now is, the city will be adequately protected.

      The master reports that the device for removing dangerous germs now in operation is effective and capable of rendering the water delivered to Jersey City pure and wholesome for the purposes for which it was intended. I see no reason to dissent from his view.
    The city contends that the annual cost of operating and maintaining this device should be capitalized and the capitalized sum deducted from the contract price. The contention rests upon the eighth section of the original contract, which provides that the operation of sewers and sewage disposal works constructed or arranged for by the contractor shall not be a charge upon or expense to Jersey City. It is conceded that the device-in question is not referred to in this or any other section of the contract, but it is argued that as the company is relieved from building, maintaining and operating sewers and disposal works, it should be subjected to the cost, not only of installing the device, which it has done, but of maintaining and operating it. The first section of the contract provides that “if such works and supply are purchased by Jersey City they shall be delivered to Jersey City, as a completed operating plant free from pollution as aforesaid The general obligation is to furnish a plant; not the money wherewith to operate it. I think that if the cost of operating it or of keeping the water pure is to be borne, in any measure, by the water company, it must be because of some express provision in the contract to that effect. If the company provides a plant capable, if properly operated, of furnishing pure and wholesome water, it fulfills its contractual obligation: If the city would
    compel it to do more, it must show that it has, in its contract, agreed to do the very thing demanded. The plant will not deliver pure and wholesome water automatically. Chemists, bacteriologists and inspectors will have to be constantly employed; the banks of the river will have to be policed; land along the sources of the stream will have to be acquired; floods and droughts will have to be guarded against; repairs will have to be made and a steady flow of the water constantly maintained—all at tire expense of the city. The cost of operating the device in question falls into the same category.
    I thought that a fence around the reservoir was. because of its location, a proper part of a completed plant, but tlie court of errors and appeals, because it was not expressly required by the terms of the contract, held otherwise. Here the court is asked to go farther. It is sought to compel the company to furnish, not what might be thought to be a proper part of a completed plant, but a sum of money to defray the costs of a part of its operation, in the absence of any contract on its part to pay such costs.

      Mr. James J. Murphy and Mr. James B. Vredenburgh, for the appellant.

      2Iessrs. Collins & Corbin, for the respondent.
   Per Curiam.

That portion of the decree which is involved in the present appeal will be affirmed for the reasons stated in the memorandum opinion delivered by the vice-chancellor m the court below.

For affirmance—The Chief-Justice, Garrison, Swayze, Trexchard, Parker, Bergen, Minturn, Bogert, Vredenburgh, Congdon—10.

For reversal—None.


text:
    The Mayor and Aldermen of Jersey City, respondents, v. Jersey City Water Supply Company, appellant.
    [Argued March 22d, 1913.
    Decided July 31th, 1911.]
    On appeal of Jersey City Water Supply Company from a decree of the court of chancery advised by Vice-Chancellor Stevens confirming a master’s report, and an order supplemental thereto, advised by Vice-Chancellor Stevens, who delivered the following-opinion :
    L have carefully considered the petition presented by the water company asking leave to introduce evidence relative to the release of the Norris Canal Company to Jersey City, dated May 12th, 1909. The question is of much importance, and the construction of the supplemental contract of July 8th, 1901, as far as it bears upon that release, not without difficulty. It seems to me that this new eoutroversjq involving the large sum of $500,000, should be determined on bill or supplemental bill, and that the signing of the final order or decree in this suit should not be postponed until the final determination of that controversy. The bill was filed August 1st, 1905. -The final decree was made on June 4th, 1908. and except as to an unimportant detail, affirmed on March 18th, 1910; and so it appears that the question of the sufficiency of the release which it is now sought to interject into the present suit, is one which did not arise until nearly a year after the issues made by the pleadings had been passed upon in this court. To introduce at 'this stage of the cause an entirely new issue, whose final determination will necessarily consume much time, would be not only irregular but unjust to complainant, whose rights have been established ly the court of last resort.

      Messrs. Collins Corbin, for the appellant.

      Mr. James J. Murphy and Mr. James B. Yredenburgh, for the respondents.
   Per Curiam.

So much of the decree as is involved in the present appeal will be affirmed upon the opinion delivered by the vice-chancellor in , the court below. •

Wo think that the petition of the appellant, praying that the making of the final decree in this cause be withheld until the determination of the question whether the $500,000, authorized by the third item of the contract between the parties to be retained by the city until the performance by the contractor of one or the other oí the conditions therein recited, is now due and payable to the contractor, was properly refused; and we rest this conclusion upon the grounds set forth in the memorandum opinion of the learned vice-chancellor delivered in disposing of the application.

The order denying the application will also be affirmed.

For affirmance—Tiie Ci-iiee-Justice, Garrison, Swayze, Trencuaed, Bergen, Minturn, Bogert, Vredenburgh, Cong-DON, Sl'LLIVAX-10.

For reversal—Parker—1.


text:
    Mary K. Hammell, respondent, v. Henry R. Barrett, appellant.
    [Submitted March 27th, 1911.
    Decided November 20th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. 96.

      Messrs. Carrow <f Kraft, for the appellant.

      Mr. William Harris, for the respondent.
   Per Curiam.

So much of the decree as is involved in this appeal will be affirmed for the reasons stated in the opinion died in the court below by Vice-Chancellor Learning.

For affirmance—Thu Chief-Justice, Garrison, Swayze, Trenoi-iard, Parker, Bergen, Voorhees, Bogerx, Vreden-BUKGH, CONGDON—10.

For reversal—None;


text:
    Mary K. Hammell, appellant, v. Henry R. Barrett, respondent.
    [Submitted March 27th, 1911.
    Decided November 20th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. &S.

      Mr. William Harris, for the appellant.

      Messrs. Garrow & Kraft, for the respondent.
   Per Curiam.

So much of the decree as is involved in this appeal will be affirmed for the reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance—Thu Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Bogert, Yeeden-BURGI-I, CONGDON—10.

For reversal—None.


text:
    Abraham Schoenfeld, surviving partner, &c., respondent, v. Michael Winter, appellant.
    [Submitted March 27th, 1911.
    Decided November 20th, 1911.]
    On appeal from a decree of tlie court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 76 N. J. Eq. (6 Buck.) 511.

      Mr. William H. Osborne, for the respondent.

      Mr. William A. Lord, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed for the reasons stated in the opinion filed in the court below by Vice-Chancellor Howell.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Bogert, VredenBURGH, CONGDON—10.

For reversal—None.


text:
    Henry Huston, administrator of Catherine A. Roe, deceased, appellant, v. Minnie Roe, respondent.
    [Argued June 27th, 1911.
    Decided November 20th, 1911.]
    On appeal from a decree of the prerogative court made by the ordinary, whose opinion is reported in 78 N. J. Hep (8 Buch.) ms.

      Mr. Henry Huston, pro se, and Mr. Theodore Simonson, for the appellant.

      Mr. Charles M. Woodruff, for the respondent.
   Per Curiam.

We agree with the result reached in this case by the orphans court and with the decree of affirmance by the ordinary, except in a single particular. The disallowance of the accountant of the item of $114.23 we think was wrong.

This amount represents one-third of the milk receipt for which the accountant claimed allowance. The accountant’s intestate had thirty-five head of cattle which came to the hands of her administrator at her death, which had to be fed and cared for, and his only means to this end was the farm. A receiver for the farm premises was appointed by an order providing that he “should take charge of the mortgaged premises, manage the same and cut and gather and harvest the corn, buckwheat and hops now (then) growing, and to take charge and possession of the crops therein mentioned and sell the same under direction of this court.”

This amount, one-third of the milk receipts) the accountant claims to have paid to the receiver as rent for the pasture of decedent’s cows.

By the terms of a lease, the tenant was entitled to another third and to have the cows remain as against Mrs. Eoe until the following April. We, therefore, deem this a reasonable and proper arrangement for the accountant to make, in order to sustain and care for the cattle, and it resulted in a benefit to the estate. The item .should be allowed to the appellant as a credit in his account.

The decree will therefore be reversed and the record and proceedings be remitted to the prerogative court to the end that the decree may be modified, by allowing to the accountant credit for this expenditure.

This disposition of the case being a substantial affirmance, costs in this court will not be allowed to the appellant.

For affirmance—None.

For reversal—The Chief-Justice, Garrison, Trenchard, Parker, Bergen, Yoorhees, Kalisci-i, Bogert, Yrtsdenburgh, Congdon, White—11.


text:
    Charles E. Homan, complainant-appellant, v. Ella L. Taylor, administratrix, defendant-respondent.
    [Argued June 27th, 1911.
    Decided June 28th, 1911.]
    On appeal from a decree of the court of chancery advised by Yic-e-Chancellor Walker.

      Mr. V. Glande Palmer, for the appellant.

      Mr. George M. Hillman, for the respondent.
   Per Curiam.

The ease attempted to be made by the appellant in the court below was that the administratrix of George B. Taylor, deceased, was attempting to enforce the collection of a.judgment recovered by Taylor in his lifetime against the complainant, notwithstanding the fact that Taylor had been paid the amount due thereon. The judgment remained unsatisfied of record, and the relief sought was the restraint of the administratrix from further effort to collect it, and its cancellation. There is no suggestion in the proofs that the administratrix was guilty of fraudulent conduct either in her attempt to enforce the judgment or in her failure to cause its cancellation. In such a situation the court of chancery was not the proper tribunal to afford the relief sought by the complainant. He should have applied to the court in which the judgment was entered for its cancellation, as provided by sections 21 and 28 of the act concerning judgments. Gen. Stat. p. 1845.

The decree appealed from will be affirmed.

For affirmance—The Chibe-Justice, Garrison, Swayze, Trenceiard, Parker, Bergen, Voori-iees, Minturn, Kaliscit, Bogert, Vredenburgh, Congdon, Sullivan—13.

For reversal—None.


text:
    The Taylor Provision Company, respondent, v. Andrew H. Edwards, appellant.
    [Argued June 29th, 1911.
    Decided November 20th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported ante p. 1J¡2.

      Messrs. Yroom, Dickinson & Scammeil, for the respondent.

      Mr. Linton Satterthwait, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed for the reasons stated in the opinion filed in the court below by Yice-Chancellor Walker.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Yoorhees, Kalisci-i, Bogert, Yredenburgh, Congdon, White—12.

For reversal—None.


text:
    Chauncey H. Strickland, complainant, v. National Salt Company, defendants.
    [Argued July 7th, 1911.
    Decided November 20th, 1911.]
    On appeal from a decree of the court of chancery advised by Yiee-Chancellor Stevenson, whose opinion is reported in 77 N. J. Eg. (7 Bach.) 828.

      Mr. William J. Wallace and Mr. Henry W. Bean (of New York), and Mr. George B. Beach (Messrs. Wilkie, Jayne & Bonynge. on the briefs), for the appellants.

      Mr. Charles IF. Fuller and Mr. Henry B. Twombly (of New York), for the receivers.
   Per Curiam.

The orders in these cases, Nos. 21 to 34, inclusive, upon the various appeals, are affirmed for the reasons stated in the opinion in No. 20 ante p. 182.

For affirmance—Ti-ie Ci-iiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voori-iees, Kalisch, Bogert, Yredenburgh, Congdon, White—12.

For reversal—None.


text:
    Elizabeth Mealey, appellant, v. Edward F. Howard, respondent.
    [Submitted July 10th, 1911.
    Decided November 20th, 1911.]
    On appeal from a decree of the court of chancery advised by Yice-Chaneellor Learning, whose opinion is reported ante p. 98.

      Mr. George J.. Bergen, for the appellant.

      Mr. John W. Wescoti, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed for the reasons stated in the opinion filed in the court below by Yice-C'hancellor Learning.

For affirmance—Tiie Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Kalisch, Bogert, Vredenrurgh, Congdon, White—12.

For reversal—None.


text:
    Philemon Woodruff et al., executors, &c., respondents, v. Dora deW. White et al., appellants.
    [Submitted July 10th, 1911.
    Decided November 20th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 78 N. J. Eq. (8 Buch.) 410.

      Mr. William I. Lewis, Messrs. Humphreys ’ £. Sumner, and Messrs. Yrecla.nd, King, Wilson £ Linddbury, for the respondents.

      Mr. John II. Reynolds, Mr. Jacob W. Le Yoe, Mr. Francis Scott, Mr. Robert Williams and Mr. Gustav A, Hunziker, for the appellants.
   Per Curiam.

The decree appealed from will be affirmed for the reasons stated in the opinion filed in the court below by Vice-Chancellor Garrison. ’ ■■

For affirmance—The Chief-Justice, Garrison, Sway#E/ Trenchard, Parker, Bergen, Voorhees, Kalisch, Bogert, Vredenburgh, Congdon, White—12.

For reversal—None.


text:
    In the matter of the guardianship of Jeremiah N. Alexander, Jr., et al., infants.
    [Submitted July 10th, 1911.
    Decided November 20th, 1911.]
    1. The orphans court cannot assume jurisdiction unless conferred by statute.
    2. The orphans court has no power, in the absence of statutory authority, to direct in advance a guardian to expend the income of his ward’s estate, or how he shall expend it; but the guardian must expend the same according4 to his best judgment and rely on the court to allow his account.
    S. P. L. 1901 p. 825, allowing the orphans court, in specified instances to order the use of the principal of the personal estate, or a part thereof, as it may deem for the best interests of infants, does not authorize the orphans court to direct the expenditure of the income of an infant’s estate.
    4. The guardian of infant children of parents having an income of Jess than $1,200 a year may use the income of the estate of the children for their education along4 lines for which they show a special aptitude.
    On appeal from the prerogative court.

      Mr. Joshua E. H or Lon, for the appellants.
   Per Curiam.

The parents of Jeremiah N. Alexander, Jr., and Mary B. Alexander, infants, residents of the county of Camden, filed their petition in the orphans court of that county praying that the guardian of their two children might be directed to pay to them for the education and maintenance of their children, the income produced from funds held by the guardian in trust for the children. Upon the hearing of the application the prayer of the petition was denied. Thereupon the parents appealed to the prerogative court, and that court affirmed the order of the orphans court, Appeal was thereupon taken to this court.

For the reasons set out in the opinion of Judge Joline, filed in the orphans court, we conclude that the order of the prerogative court, affirming that made by the orphans court, should, in its turn, be affirmed. The opinion of the orphans court which is hereto annexed is adopted by us as expressing the view which we entertain.

“Joline, J. The petition in this case sets out that Jeremiah N. Alexander and Anna B. Alexander are the father and mother of Jeremiah N Alexander, Jr., an infant aged sixteen years, and Mary B. Alexander, an infant aged thirteen years. That the* mother is possessed of certain property worth about six thousand dollars, upon which there is a mortgage of five hundred dollars; that she has no other outside funds or income and business or means of making any money, and that the father has an annual salary of twelve hundred dollars.

“It further sets out, that upon the death of a relative their son, named above, received a legacy of one thousand dollars, and their daughter received a legacy of four thousand dollars; that on the fourteenth day of January, nineteen hundred and ten, letters of guardianship were granted by the Surrogate of the County' of Camden to the Security Trust Company of Camden ;• that on the twenty-sixth day of Januarjr, nineteen hundred and ten, said company received the money due said infants, and on the said last-named day invested the same in mortgages.

“It further sets out, that the said Jeremiah N. Alexander, Jr., is attending the Penn Charter School'in Philadelphia; that the said Mary B. Alexander is attending the public school in Haddonfield; that she has special taste and aptitude for music; that their parents are anxious to. give her a musical education, and anxious to educate as best they can their son; .that they are unable, financially, to give said children the education they think and believe they should have, and believe it would be for the best interest of said infants to have the income of said moneys used during their minority for the purpose of properly educating and properly clothing them.

“The prayer of the petitioners is that the Security Trust Company pay the income from said moneys to them, said parents, for the purposes aforesaid.

“Upon the hearing it was developed that the son lived in Haddonfield, New Jersey; that he was being sent to the Drexel Institute, Philadelphia, at a cost of one hundred dollars a year, besides the cost of the trip from Haddonfield to Philadelphia, and that the mortgages drew five per cent, interest. In all else the material allegations of the petition were fully sustained.

' “From the time of its creation it has been held that the orphans court was the creature of statute, and that it cannot assume jurisdiction of any matter unless it is given by statute. In the case of Gray v. Fox, 1 N. J. Eq. (Saxt.) 259, 272, it was held that 'the decree of the orphans court, on a matter over which it has jurisdiction, if fairly obtained, is certainly not to be questioned in a collateral way, even in this court.’ (Chancery.) 'But that court is one óf limited power and jurisdiction; if it transcends its jurisdiction, its acts will pass for nothing.’ Sherman v. Lanier, 39 N. J. Eq. (12 Stew.) 249, 258. In Dunham v. Marsh, 52 N. J. Eq. (7 Dick.) 256, 261, it was held that once having obtained jurisdiction, it follows 'as an incident in the exercise of that power that it has power to solve any question which must necessarily be decided in reaching that end.’ Mullaney v. Mullaney, 65 N. J. Eq. (20 Dick.) 384, 386; Baker’s Case, 61 N. J. Eq. (16 Dick.) 592; 2 N. J. Dig. 2907 § 72a; F. Godfrey’s Case, 72 N. J. Eq. (2 Buch.) 354; Woolsey v. Woolsey, 73 N. J. Eq. (2 Buch.) 616; McSpirit Estate, 73 N. J. Eq. (3 Buch.) 616; Lippincott’s Case, 68 N. J. Eq. (2 Robb.) 581.

“The question then naturally occurs, has any statute conferred upon the orphans court power to direct in advance a guardian to expend the income of his ward or how to expend it? I have failed to find any statute of this character, and none has been presented to me by counsel. I conclude, therefore, that in so far as the orphans court is concerned, it must be expended as the best judgment of the guardian dictates, and that he must rely lipón-the court to allow it in his account.

“The power to do that which is asked of this court is inherent in the court of chancery, if anj'where. Alling v. Alling, 52 N. J. Eq. (7 Dick.) 92. In re Hannah Barry, 61 N. J. Eq. (16 Dick.) 140, the. court holds that 'the general policy of the statute and décisions in this state upon the question now presented has been to leave the question of the necessity of the expenditure of the personal estate, both income and principal, to the judgment of the guardian, in the first instance, subject to affirmance of the orphans court on the settlement of his accounts, and in all ordinary cases this course (which has been followed for over a century) affords protection both to the guardian and the infant.’ This case was decided in nineteen hundred, and the legislature, in nineteen hundred and one, passed an act allowing the orphans court in certain instances to make an order authorizing the use of the principal of the personal estate, or a part thereof, as it may deem for the best interest of said minors. P. L. 1901 p. 325. Said act did not authorize the court to direct the expenditure of the income.

“I have been unable to find that this court has the power or authority to make an order directing a guardian how he shall expend the income of his ward, or to direct him to expend at all.

“My conclusion, therefore, is that the prayer of the petition be denied. It may not be amiss at this juncture to make a few observations. In so far as the boy is concerned, the prayer is that the income may be used for his education, and as to the girl, that it may be used for her musical education, for which she has shown a singular aptitude. The mother owns a property worth six thousand dollars, upon -which there is a mortgage of five hundred dollars, and has no income. The father has an income of twelve hundred dollars a year. Taking therefrom thirty dollars, the interest on the mortgage, there is left eleven hundred and seventy dollars with which to feed and clothe his family and educate his children, plainly an inadequate sum.

“In Streitwolf v. Streitwolf, 58 N. J. Eq. (13 Dick.) 576, the court, in speaking of the duty of a parent, says: ‘The necessity that is the criterion of validity is not mere physical necessity, but rather social and moral propriety, having regard to the situation of the parties and the fitness of things. Food, shelter and clothing are physical necessities. In an enlightened community, the common education of a child is a moral and social necessity. Professional training is not a general necessitjq but is a special advantage.’

“These remarks are as applicable to guardians as to parents, and the guardian in this case, I think, can safely pay out the income due tlie 3roung man on ■ account of his education, and just as safely pay the income due the young girl, or a part of it, upon her musical education. If she does not in the future exhibit this special aptitude for music the expenditure can cease. It is within the power of the guardian to see the income is applied to such education, and I may add, to her clothing. No doubt her parents feel that the development of her latent powers will fit her to earn a livelihood in the future, and surely a court, in the light of the above decision, would riot surcharge a guardian with money expended for such a laudable purpose.”

The order of the prerogative court is affirmed.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voori-iebs, Kalisch, Bogert, Yredenburgh, Congdon, White—18.

For reversal—None.


text:
    In the matter of the estate of Nelson S. Hibbler, deceased.
    [Submitted July 10th, 1911.
    Decided November 20th, 1911.]
    On appeal of William S. Yoorhees, trustee, from an order of the prerogative court advised by Yice-Ordinary Walker, whose opinion is reported in 78 N. J. Fq. (8 Bucli.) 217.

      Mr. James A. Gordon and Mr. Patrick II. Gilhooly, for the respondents.

      Messrs. Collins & Corbin, for .the appellant.
   Per Curiam.

The order appealed from will be affirmed for the reasons stated in the opinion delivered in the court below by Vice-Ordinary Walker.

For afir-manco—The Chief-Justice, Garrison, Swayze, Trenchard, Kalisch, Bogert, Vredenburgh, Congdon, White—9.

For reversal—Parker, Bergen, Voorhees—3!