text:
    Anna P. Rosenbaum, by her next friend, v. Joseph S. Garrett.
    [Filed September 16th, 1898.]
    1. A testamentary trust in personalty is to be construed according to the law of the testator’s domicile.
    2. A testator domiciled in one state gave a fund to a trustee domiciled in another state, for the use of a married woman, free from the control of her husband. — Held, that as the bequest created an active trust, under the law of the former state, the trustee is thereby empowered to hold the corpus of the fund during the existing coverture of the cestui que trust.

    'Heard on bill, and answers.
    The bill is filed by a cestui que trust to compel her trustee to transfer to her the trust property. The bill also asks for an injunction restraining the trustee from taking any proceedings in any other court, in this or any other state, to surrender his trust, or from- doing any other act in relation to the trust fund, except such acts as shall be necessary to protect the same.
    The bill sets out that William Coffin, of Philadelphia, Pennsylvania, died in 1872, leaving a will, which was. probated in Philadelphia, and afterwards in Camden county, New Jersey, in which will are the following bequests:
    “To my sister, Mary E. Reybold, ¡S600 per annum during her life, and, after her death, five thousand dollars to Joseph E. Garrett in trust for her daughters, of which sum one thousand dollars is for the use of Matilda Garrett, his wife, and four thousand dollars for the use of Anna E. Rosenbaum, free from the control of her husband.”
    The bill then sets out that the said Mary Reybold is deceased; that in June, 1894, shortly after her death, the Guarantee Land, Insurance and Trust Company of Philadelphia, trustee under the will of Coffin, paid over to said James E. Garrett, as trustee for Anna P. Eosenbaum, the sum of $4,000, less a collateral inheritance tax; that Garrett, although requested by Anna P. Eosenbaum to pay over to her the said sum, or to assign to her the securities purchased therewith, refused to do so; that Garrett was, at the time he was appointed trustee under the will, as well as when he was paid the said sum, and still is a resident of New Jersey; that William Coffin, previous to 1872, had been for many years a resident of New Jersey, and died seized of real estate in New Jersey; that Anna P. Eosenbaum is married to one William S. Eosenbaum.
    The answer resists the prayer for injunction by setting up a proceeding in Pennsylvania, already commenced at the time of the filing of this bill, and resists the prayer for relief by setting up that the rights of the parties under the trust are to be measured by the law of Pennsylvania, which law the answer sets out.
    There are both an answer and an amended answer. The facts set up in these answers, in respect to the first point, are these: That before the filing of this bill, the trustee filed his account, showing the condition of the trust estate from the date when the trustee received the same, with the orphans court of the county of Philadelphia, as he was required to do by the laws of Pennsylvania, to which he was amenable; that he filed his account as trustee aforesaid, as well for the purpose of having his account passed, as also for the purpose of having determined, in the jurisdiction in which he was advised had control of the matter, the status of the trust and the character of the trustee in relation thereto as trustee, as well as the extent of the control, if any, which the cestui que trust may have over the trust fund; that the account was duly advertised for presentation to the said orphans court, on January 3d, 1898, and a copy thereof was sent to the cestui que trust, and that immediately thereafter the complainant filed this bill.
    The amended answer sets up the filing of the trust account ; that the trustee gave to the complainant the notice of such application which is required to be given by the laws of Pennsylvania and the practice of the orphans court; that the application and the proceedings taken by defendant in the said orphans court, in its regular course, raised and required a determination of the question whether or not the principal of the trust estate should remain in the custody of the defendant as trustee, to be used by him for the purposes indicated by the testator’s will, or whether the said prinicipal should be paid over to the complainant as cestui que trust, and this defendant be discharged as trustee; that said application has been heard and determined by the said court which has rendered an opinion upon the questions raised before it, which opinion is annexed to the answer.
    In respect to the prayer of the bill that this court shall order the trustee to transfer the trust property to the complainant, the answers aver that the law of the testator’s domicile must control all questions as to the status of the trust fund and its disposition ; that the trust is known under the law of said state as “ a married woman’s separate use trust,” the principal of which is not subject to the control of the cestui que trust during the lifetime of her husband.

      Mr. Thomas B. Hall, for the complainant.

      Mr. Norman Grey and Mr. A. IT. Wintersteen, for the defendant.
   Reed, V. C.

The- complainant filed her bill upon the theory that Garrett, her trustee, holds the fund bequeathed to him, in trust for her, as a passive trustee, and that he is bound, upon her request, to transfer the property to her, or to such person as she may name. The bill, as already stated, prays that the trustee may be decreed to surrender the trust property to the complainant, and also that he may be restrained from taking any proceeding in any other court to have the rights of himself and his cestui que trust settled.

The right of this court to entertain suits of this character, when the parties are within the jurisdiction of the court, even when the trust was created in a foreign state, is entirely settled. Mead v. Merritt, 2 Paige 404; White v. White, 7 Gill & J. 208; Chalmer v. Hack, 19 Me. 124; Woodward v. Schatzell, 3 Johns. Ch. 412.

It is also settled that one court having obtained jurisdiction over the parties to a controversy may enjoin the parties from proceeding in the courts of a foreign state. Story Eq. Jur. §§ 899, 900; 1 Perry Trusts § 72.

In respect to the prayer for an injunction it is obvious that the trustee does not contemplate instituting any new proceeding in the courts of Pennsylvania. All that he claims is that the proceeding already taken there to settle his account as trustee involves a settlement of the rights of the parties to the possession of the corpus of the estate.

It is also apparent that if the -proceedings already taken in Pennsylvania involve the determination of this question, that there exists no special equity which would justify this court in exercising the rarely-exerted power of restraining parties from pursuing an already commenced proceeding in another jurisdiction.

It is clear to my mind that no injunction as prayed should be awarded.

On the other hand the query arises whether the present suit should not be suspended or abated by reason of the pendency of the proceedings in the Pennsylvania tribunal. This is a matter of discretion. It is clear that the matters set up in the answer, intending tó exhibit the pendency of a proceeding in Pennsylvania between the same parties and involving the same subject-matter, cannot operate as a plea in abatement. The court will, however, sometimes stay the domestic suit until the suit in a foreign state is disposed of. 1 Dan. Ch. Pl. & Pr. (marg.) 815; Kerr v. Willetts, 19 Vr. 78.

It is observable that in the cases where this course has been taken both suits were commenced by the same party.

I do not think that the matters set up in the answer show so clearly that the question involved in the present suit could be determined in the proceedings for accounting in Philadelphia that the present suit should be suspended. There is, however, not only an answer but an amended answer. The amended answer sets up that the question whether the corpus of the trust fund should be paid over to the cestui que trust has been heard and determined by the foreign tribunal, which court rendered an opinion, a copy of which is annexed to the amended answer. The opinion is that, under the law of Pennsylvania, the cestui que trust is not entitled to receive the trust fund. The opinion was obviously rendered after the bill in the present case was filed. Nevertheless, if it convincingly appeared that a decree had been already made by a court having jurisdiction over the parties and the subject-matter, this suit would be dismissed. Such a decree can be set up in an answer as well as by a plea. 1 Dan. Ch. Pl. & Pr. § 661; Davoue v. Fanning, 4 Johns. Ch. 199. But the answer does not aver that any decree or order has been made in the foreign suit. The opinion of the court possesses no efficacy as a bar unless it is evidenced in a court of record by a record, which the written opinion is not. Whether, apart from the fact just stated, a decree made in accordance with the opinion would be binding upon the cestui que trust, is a question not easily,answered.

The probate court of Philadelphia had the power, I think, to construe the will which it had probated and to settle the power of the testamentary trustee, although he resided in a foreign state. Chase et al. v. Chase et al., 2 Allen 101. But whether such construction rendered, not upon a bill filed for that purpose but as an incident of an accounting by the trustee under the conditions set out in the amended answer, would be a finality, is doubtful. Assuming, however, that the question is an open one and that we are free to try the rights of the parties without any restrictions, I do not think that the complainant is entitled to the relief she seeks.

The counsel for complainant admits that the trust created by the will of William Coffin, by the terms .of which $4,000 is given to Garrett in trust for the use of Anna E. Eosenbaum, free from the control of her husband, is, by the law of Pennsylvania, regarded as an active trust, and the cestui que trust has no right to the possession of the property so long as her condition of coverture exists. That this is the law of Pennsylvania is set up in the answer and so stands as a fact in the cause, and is entirely settled by the decisions of that state as they are collected in the opinion attached to the answer.

As already observed, the will was executed in Pennsylvania by a testator domiciled in that state at the time of his death. The general rule is that, as respects the personal property of a testator, the validity and meaning of the will are to be determined by the law of the domicile of the testator. 1 Jarm. Wills. (R. & T. ed.) 3; Theob. Wills (4th ed.) 3, 4; Story Confl. L. *470; 3 Encycl. L. 636; In re Trufort, 36 Ch. Div. 600.

In Trotter v. Trotter, 4 Bligh (N. S.) 502, Lord Lyndhurst said; “ There are certain rules of construction adopted by the court, and the expressions which are made use of in a will and the language of a will have frequent reference to those rules of construction, and it would be productive, therefore, of the most mischievous consequences and in many instances defeat the intention of the testator if those rules were to be altogether disregarded.”

And in Harrison v. Nixon, 9 Pet. 483, 504, Judge Story writes: They [wills] are supposed to speak the sense of the testator according to the received law and usages of the country where he is domiciled, by a sort of tacit reference, unless there is something in the language which repels or controls such a conclusion. In regard to personalty in an especial manner, the law of the place of the testator’s domicile governs the distribution thereof, and will govern in the interpretation of wills thereof unless it is manifest that the testator had the laws of some other country than his own in view.”

The exercise of powers conferred by a testator is controlled by the law of the testator’s domicile, both as to the execution of the power and the interpretation of it. Bing. App. Cas. 64 Pa. St. 345; Sewall v. Wilmer, 132 Mass. 131; Tatnall v. Hankey, 2 Moo. P. C. 342.

Now, that the language of a will creating trusts in property stands upon the same footing as any other indication of a testamentary disposition of property seems too plain for discussion.

The power of the trustee over the personalty and the extent of the right of the cestui que trust to it, are to be ascertained by reading the will in connection with the law of testator’s domicile, unless it is manifest that the testator had in mind the law of some other state.

The insistence of the counsel for the complainant is that it must be concluded that the testator intended that this trust should be administered and construed in accordance with the laws of New Jersey, from the fact that he named a trustee who was at the time the will was made, as well as at the time of the testator’s death, a resident of New Jersey.

It is also assumed in the argument that the cestui que trust was also at the same time domiciled in this state. But it only appears in the bill that it was filed by her as a resident of New Jersey. Where she resided when the will was made and when the testator died, does not appear.

But if both trustee and cestui que trust were domiciled in New Jersey at the dates mentioned, the result, in my judgment, is the same. Neither condition of fact would fix upon the testator an intention that the trust should be construed by the law of New Jersey.

There is a line of cases in which trusts are so clearly to be administered in a foreign state that many questions which would be otherwise determined by the domicile of the testator, will, in these instances, be determined by the situs of the trust. These are cases of gifts to charities established in a country or a state other than the domicile of the testator.

The rule, as stated in Mr. Barr’s work on International Law p. 832, is this:

“ When a testator has appointed a continuing trust with a legal habitation in another country, e. g., for the establishment of a system of charitable education there, then the law of that country will regulate the conduct of the trustees appointed for the management of the bequest, and will interpret according to its own rules the succession of the original trustees prescribed by the testator; if he has used the word ‘heirs’ of the original trustees, the law of the place of administration will read the word ‘heirs’ in its own sense.”

The cases cited in support of this statement are Prevost of Edinburgh v. Aubrey, Amb. 236; Attorney-General v. Lepine, 2 Swanst. 181; Emery v. Hill, 1 Russ. 112.

So, it was held in Chamberlain v. Chamberlain, 43 N. Y. 424, that where there was a bequest to a foreign charity, the money would be ordered paid over to the proper parties, leaving the courts of the state where the charity is to be established to provide for its administration.

The construction of the will, however, is controlled by the law of the testator’s domicile. To the same effect is the case of Burbank v. Whitney, 24 Pick. 154.

This line of cases does not seem to afford much assistance to the attempt to withdraw the construction of the present trust from the control of the law of the testator’s domicile. It was apparent in those cases that the testator intended that the bequests should be used by the charitable organizations in the same way that they used all of their property.

A general bequest to such a charitable body would import that the fund was to be employed and administered for the general purposes of the charity by the persons and in the manner provided for by its own laws and regulations.

These eases deal with a class of trusts quite different from the ordinary trust created by a gift to one person for the use of another.

The former class of trustees has a permanently-fixed domicile and a regularly-organized system for the administration of its funds. The latter class has not.

These eases deal with matters involving the administration rather than the construction of trusts, but the question in the case in hand is primarily one of construction.

The testator, in creating the trust, has employed certain words which by the law of the place of his domicile affect the power of the trustee and the extent of the right of the cestw, que trust in the trust fund. The testator declared that the complainant should have the use of the trust fund free from the control of her husband.”

The courts of Pennsylvania have adopted the rule enunciated by Chancellor Kent in his great opinion delivered in the case of Methodist Episcopal Church v. Jaques, 3 Johns. Ch. 78. Chancellor Kent’s opinion was that a wife held her separate property with only the degree of power to control and dispose of the same which is expressly given her by the instrument creating the separate estate; that the married woman is not to be deemed a feme sole for all purposes in respect of her separate property, and is not left in a position to be cajoled out of it by her husband or stripped of it by her creditors. Therefore, whenever it appears that property left to a wife is to be free from marital influence, the courts of Pennsylvania hold that it is to be preserved in the hands of a trustee during the period of coverture (Perry v. Boileau, 10 Serg. & R. 208), although the trustee has no active duties to perform. Lancaster v. Dolan, 1 Rawle 247.

The present bill was filed in this court obviously because it was supposed that the law of New Jersey is more favorable to the claim of the complainant, for the rule prevailing in Pennsylvania has not been adopted here. The decision of Chancellor Kent in Methodist Episcopal Church v. Jaques, supra, was reversed by the court of errors, that court holding that a married woman’s power to dispose of separate property given to a trustee for her use, free from the debts and intermeddling of her husband, was absolute and she could give it to her husband if she so chose. This view of the power of a married woman over her separate property was adopted by this court in Leaycraft v. Hedden, 3 Gr. Ch. 512. The modern doctrine of the British courts of equity also is that the creation of a separate estate in a married woman, unless coupled with a restraint upon alienation or anticipation, confers an absolute interest in the equitable estate. Whether the interest of the married woman is limited to a right to receive the income during her coverture, or she has a right to receive the entire estate, depends upon whether the trustee has any active duties to perform in respect to the trust estate. If he has not, then he can be called upon to convey the estate to the cestui que trust or to her appointee, even if such appointee is the husband of the married woman.

So it is assumed that by the law of this state this trust, the trustee having no active duties to perform, is a passive trust and the trustee can be called upon to transfer the carpus of the trust fund to whomsoever the cestui que trust may designate.

• It is clear that if the trust now in question had been created in this state, and at a time preceding the existence of our statutes giving a married woman a separate property in bequests and devises to her, this would have been its effect. It may, perhaps, be queried whether such a trust, created since the enactment of those statutes, should receive the same construction, for the words used are now useless unless the testator had in mind an intention to guard the married woman in all events against the force of marital persuasion or brutality.

If, however, as I think, the question in hand is one of construction and therefore the testator is presumed to have used the words creating the trust in view of the law of the state of his domicile, the rights and duties of the parties are plain.

The trustee is entitled to hold the corpus of the fund during coverture.


source: Caselaw Access Project

author: Reed, V. C.

license: Public Domain

text:
    Mary E. Magowan v. Frank A. Magowan.
    [Filed January 13th, 1898.]
    1. A recital in a decree of divorce rendered by a court of another state, that the petitioner was a resident of that state for the statutory period, is conclusive in New Jersey, not only as to the period of citizenship but as to the fact of petitioner’s domicile in the other state.
    2. In an action by a wife to declare a decree of divorce rendered against her in another state void and for maintenance, the only charge of fraud was that there was an agreement for separation obtained from her by duress and fraud and that she was induced to withdraw her defence by duress and false representations. The evidence showed no agreement to withdraw such defence. After the execution of the agreement for separation the wife allowed a decree to go against her by default, and there was no duress that prevented her from continuing her defence. — Held, that the decree above referred to- must, in this suit, be regarded as a valid judgment.-
    3. A divorced wife cannot maintain an action for maintenance against her former husband.

      Mr. Francis C. Lowthorp and Mr. Linton Satterthwait, for the complainant.

      Mr. Edwin R. Walker, for the defendant.
   Reed, V. C.

This bill is filed by a wife against her husband for maintenance under the statute. The bill, to prepare the way for the relief thus asked, prays that a decree divorcing these parties, granted to the defendant by a court in the Territory of Oklahoma, may be declared void. The ground upon which this relief is invoked is that the husband was never a resident of the territory in which the decree was made, and that, therefore, the court who made it had no jurisdiction in the matter.

The doctrine seems to be established that one of the parties to the marital relation must be domiciled in the state whose court attempts to adjudicate upon the marital status of the parties, else the action of the court is extrajudicial and will receive no' countenance elsewhere. 5 Encycl. L. 757, 758; 2 Black Judg. ¶ 927.

The facts proven in this case show that the wife never resided elsewhere than in this state. They also show, with equal conclusiveness, that the husband never had a domicile in the Territory of Oklahoma. He visited that territory, but it is transparent that his visits were for the single purpose of procuring a divorce. His visits were hurried, brief and attended with every circumstance which could advertise that purpose. The pretence of an intention to reside in that territory is, under the testimony', too flimsy for patient consideration. But the husband has put in evidence the record of the decree made by the Oklahoma court, and this decree contains a finding that the plaintiff in that suit had been an actual resident in good faith of the territory for ninety days next preceding the filing of the petition therein. Whether a court, by its finding that it has jurisdiction, can conclude all other courts in other states from determining that question anew is a point upon which there is a contrariety of authority. The weight of authority elsewhere is that a court of one state cannot, by a recital that it has jurisdiction over a person as a domiciled citizen of its state, preclude the court of another state from inquiring whether the person was in fact a citizen of the latter state, over whose marital status alone its court had jurisdiction. 5 Encycl. L. 763; Smell v. Sewell, 122 Mass. 156, 158; People v. Darwell, 25 Mich. 247, 256; Reed v. Reed, 52 Mich. 117; Gregory v. Gregory, 76 Me. 535.

Jurisdiction, in respect to the point now spoken of, depends entirely upon citizenship, not upon the length of time that the citizenship has continued. If a court of one state makes a decree concerning the status of a person who is actually a citizen of the state, although the person may not have been domiciled for the length of time required by the statute of the state, nevertheless the decree is unassailable for the want of jurisdiction in the court which made it. This obvious distinction is recognized by the supreme court of Minnesota in the cases of State v. Armington, 25 Minn. 29, and Thurston v. Thurston, 28 Minn. 279.

In the former case there was no domicile at all of either party in the state the court of which had made a decree of divorce, and the decree was held void by the Minnesota court for want of jurisdiction. In the latter case, where the complainant was domiciled in the foreign state, although not domiciled for the statutory period, the decree was held to be unassailable on jurisdictional grounds.

But whatever may be the condition of judicial settlement elsewhere, I understand that the point is settled in this state, to the effect that a recital in a decree for divorce made by the court of another state that the petitioner was a resident of that state for the statutory period, is conclusive here of the truth of the fact thus recited. I understand that it is not only conclusive as to the period of citizenship, but as to the fact of the petitioner’s domicile in the other state. Nichols v. Nichols, 10 C. E. Gr. 60; Fairchild v. Fairchild, 8 Dick. Ch. Rep. 678.

The attack upon the Oklahoma decree, therefore, grounded upon the want of jurisdiction in the court which made it, fails. The element of fraud in obtaining that decree, which element figures in the case of Doughty v. Doughty, 12 C. E. Gr. 315; S. C., 1 Stew. Eq. 581, and in other cases there cited, is not so presented by the pleadings in this case as to be fully considered. The attack upon the decree is made upon the ground that the husband was not a bona fide resident of the territory and so the territorial court was without jurisdiction. It is not charged that the Oklahoma court was imposed upon by the fraudulent device of the husband. The only charge in the bill which has any relevancy to such a defence is that a certain agreement for separation, made between the husband and wife, was obtained from the wife by duress and fraud, and another charge that the wife was induced to withdraw her defence to the Oklahoma suit by duress and false representations. The evidence upon the first of these charges is that there was no agreement entered into between the parties to withdraw the defence to the divorce suit. After the execution of that agreement for separation the defendant in the suit allowed a decree to go against her. by default, she knowing that the case of the complainant was a pure fabrication. There was no duress which prevented her from continuing her defence, even if the agreement for separation had been induced by fraud. I am constrained to the conclusion that the decree of the Oklahoma court must in this suit be regarded as a valid judgment. This being so, there can be no decree for the allowance of a sum for maintenance, inasmuch as such a decree is dependent upon the existence of the marital relations between the parties. Freeman v. Freeman, 4 Dick. Ch. Rep. 102; Lynde v. Lynde, 9 Dick. Ch. Rep. 473. Nor can I discover any excuse in this suit for decreeing the payment by the husband to the wife of any sum by virtue of the agreement for separation. That instrument, although its execution is set up in and a copy is annexed to the bill, is only referred to as a part of the history of the transaction attending the divorce proceedings. There is no ground laid for a decree for the specific performance of that agreement, nor for the recovery of damages for its breach, even if such incongruous ground for relief could be introduced in the bill for maintenance. The allusion to the agreement in the prayer for relief is that in fixing the amount to be allowed for support the court should either fix it according to the situation in life of the parties or in accordance with the provisions for maintenance contained in that agreement. The sum to be fixed by either standard was to be a sum awarded by way of maintenance under the statute.

I am constrained to advise a decree dismissing the bill.


author: Grey, V. C.

text:
    Frances Hallenback v. Arabella Rogers and John M. Rogers.
    [Submitted May 9th, 1898.
    Filed June 1st, 1899.]
    1. A partnership inter sese may be established by proof of an express contract, or of such acts and representations of the partners towards each other regarding the subject-matter of the partnership as necessarily lead to the conclusion that they have entered into that relation.
    2. Where there is no express agreement for a partnership, no holding of partnership property in either title or use, no division of profits nor agreement therefor, and no agency of the supposed partners for each other, in carrying on the supposed partnership business, there can be no partnership inter sese.

    3. Where one party pays the purchase-money and the legal title is conveyed to another, the usual presumption is that the grantee holds in trust for the party paying the purchase-money, but this may be rebutted by proof that the latter intended the grantee to take beneficially.
    4. Where the parties are parent and child, the presumption is that the payment of the purchase-money was a gift, and this presumption must be overcome by proof in order to establish a resulting trust.
    On bill, answer and proofs.
    The complainant in this case is Mrs. Frances Hallenback, a widow lady, the mother of the defendant Mrs. Arabella Rogers,, who is her only child. The defendants are the daughter, Mrs. Rogers, and her husband, John M. Rogers.

      The complainant alleges that in 1873 she bought from John C. Bullitt the lot of ground at Cape May upon which the boarding-house known as the “ Marine Villa ” was subsequently built; that she paid to Mr. Bullitt, through the defendant John M. Rogers, $1,000 on account of the purchase-money, and that as Rogers “ was to assist in erecting the hotel and pay part of the purchase-money for the ground,” the deed for the lot was, at his request, made by Bullitt to the complainant’s daughter, then Arabella Hallenback. There were several subsequent purchases of adjoining lands, the titles to which were also taken in the name of the daughter. The complainant alleges that she largely furnished the house when it was built; that she took possession of it and managed and ran it for the benefit of herself and the defendant John M. Rogers, who shortly after the purchase had married her daughter. The daughter assisted, during the earlier period, in the management of the house, but of late the complainant has done it all. The complainant further alleges that she purchased a large part of the furniture of the hotel with her own money, or with the receipts from the business, though she admits that the rest of the furniture and large additions to the hotel itself have been paid for by the daughter and her husband. The daughter, her husband and children lived during the season with the complainant at the hotel, but at no time was any board asked or received from them. The hotel was advertised as “ ‘ Marine Villa,’ Mrs. F. Hallenback, proprietor.” For a number of years these publications were printed by the defendant Rogers. She claims that in the twenty years in which she has run the hotel she has made it a valuable property, “and has acquired a large interest therein by her labor and expenditures, and has brought her experience to the business and created a good will now attendant upon "the premises.” She further alleges that in 1895 she purchased an adjoining property known as the “Albert Cottage,” paying $2,500 in cash, and “ assenting that the title should be in the said Arabella Rogers,” the latter giving a purchase-money mortgage for $17,500, and she states that all payments made on account of the “Albert Cottage ” have been made in part out of the proceeds of the business of the “ Marine Villa,” and partly from pension money received by the complainant. She claims to have paid from her own money, and from that arising from the business, for repairs, insurances and taxes on the “ Marine Villa,” and also on the “Albert Cottage,” and somewhat on account of the mortgage on the latter cottage. She states that in the year 1897 the defendants refused to allow her to have access to the “ Marine .Villa,” or to have her personal belongings, books and papers, unless she would execute a lease and pay a fixed sum as rent, and that they threatened to exclude her from that property, and to let the “Albert Cottage,” of which she remains in possession, and she prays an answer without oath, and that “ the partnership existing between the complainant and the defendants may be dissolved, and an account taken under the order of this court of all the partnership dealings,” and that what appears to be due complainant may be decreed to be paid her by defendants, and for a receiver for the partnership assets, including the “ Marine Villa” and “Albert Cottage;” and that defendants may be restrained from selling or encumbering these properties or any of the other properties of the partnership, and that all the property of the partnership may be sold.
    The defendants answer the bill jointly and severally. They deny that the complainant purchased the lot of ground on which the “ Marine Villa ” was subsequently erected, and that she paid a part of the purchase-money to Rogers on account of that purchase as stated in the bill. They admit that the deed was made for that lot by Bullitt to the daughter, but they aver that this conveyance was made pursuant to a purchase of the property by the defendant Rogers, with his own funds, for the daughter whom he soon afterwards married, and they allege that he (Rogers) subsequently erected thereon the hotel or boardinghouse called the “ Marine Villa,” which he completely equipped and furnished at his own expense, for his wife. The defendants state that the complainant and the defendants jointly occupied the property, as one family, for a number of years, during which the complainant took an active part in the business management, without any express understanding or agreement between, the parties other than that the complainant should help in the business as one of the family. They further answer that, in 1893, the complainant agreed with the defendant Arabella Rogers to take a lease of the premises for the complainant’s exclusive use and benefit, at a rental of $3,000 a year, and that the complainant occupied the premises on those terms, and paid the first and second year of her occupation, under the lease; that having failed to pay the third year’s rent, the defendant Arabella Rogers, in the spring of 1897, took possession and commenced business on her own account. The defendants deny that the complainant purchased the “Albert Cottage,” and that she paid $2,500 on account of the purchase-money, and they say that the defendant Arabella Rogers purchased that property, with the assistance of her husband, and took the title in her own name, and that the complainant, up to the time she took possession of the “Albert Cottage,” never advanced or paid any of her own funds towards the purchase, improvement, repair or furnishing or expenses of any of the premises. They admit the complainant is in possession of the “Albert Cottage,” but they say she took possession of it without the defendants’ consent and without any legal right so to do, and they have refused her access to the “ Marine "Villa,” for fear that she would install herself therein and take possession, which she has sought to do, under the false pretext that some of her personal effects were left there, which she desired to remove.
    The defendants expressly deny that the complainant has any right, title or interest, either in law or equity, in or to either of the said properties, and that she was ever a partner with them or either of them; and they deny all right on her part to an accounting in respect either to the property or the business heretofore conducted thereon. And the defendants further insist that the matters complained of are determinable at law, and pray the same benefit as if they had demurred to the complainant’s bill.

      Mr. Thomas E. French and Mr. IAndley M. Garrison, for the complainant.

      Mr. David J. Paneoast, with whom was Mr. William S. Milles, of the Delaware bar, for the defendants.
   Grey, V. C.

It is to be noted that the bill of complaint, though all the’ prayers seek relief by dissolution account and receivership which presupposes a partnership, nowhere alleges that any agreement of partnership was ever entered into by the parties, nor does it contain any averment that the narrated facts brought the parties into the relation of partners.

Nor is there anywhere in the bill any statement defining what constituted the supposed partnership property. The lots whereon the “ Marine Villa ” and “Albert Cottage ” properties are situate are described, and the prayer of the bill refers to them in asking that a receiver may take possession of the partnership property, “ including said ‘ Marine Villa and ‘Albert Cottage/ ” but the bill nowhere specifically alleges that these pieces of real estate or their equipment and furnishings, part of which it is alleged were supplied by complainant, are, in fact, partnership property. The whole ground of relief sought by the complainant is based upon this supposed existence of a partnership between the complainant and the defendants, and on the ownership of partnership property not specifically defined, but which it is assumed included the “Marine Villa” and the “Albert Cottage,” the two boarding-houses at Cape May.

The defendants deny that there is or ever was any partnership, and all the testimony taken has been directed to the establishment or refutation of the existence of that relation between the parties. The arguments presented and eases cited by both sides have sought to maintain or refute the claims of the complainant that there is a partnership which she prays may be dissolved and that its assets consist, in part at least, of the “ Marine Villa ” and .the “Albert Cottage,” the titles to which' stand in the name of the defendant Arabella Rogers. Whatever claims the complainant makes that there are other partnership assets than those two properties, are set forth with so little certainty of statement in the bill that it is difficult to know of what they consist. So far as the furniture of the “Marine Villa ” is concerned, the testimony of Mrs. Hallenback herself, hereinafter adverted to, clearly shows that the portion placed in the “Marine Villa” by her is by her declared to be in her own individual ownership. The boarding-house business there carried on, she says was her own. The “Albert Cottage ” was bought already furnished, in the name of Mrs. Rogers, under the circumstances hereinafter narrated. The case presented as to the property sought to be affected is, in substance, an effort to have the title to these two tracts of land, the “Marine Villa” and the “Albert Cottage,” declared to be partnership property and to have an accounting with respect thereto, and a receiver, &c.

In the happening of the events narrated in the testimony, those attending upon the purchase of the lots on which the “ Marine Villa” and its extensions were erected, and the conduct of the business in that house up to 1894, will be first examined, for, in my view, the relations of the parties touching the “Marine Villa” were changed in 1894.

The “Albert Cottage” and its furnishings were not purchased until 1895, and the matters relating to these involve a different series of facts and will be separately considered.

The original purchase was the first lot on which the “Marine Villa” now stands, and was made from. Mr. Bullitt. At that time the complainant was keeping a boarding-house in Cape May. Her business, in which she had been engaged there for two years, had been profitable, but it is quite evident that she was then a person of extremely limited means,-as it is uncontradicted that she was financially embarrassed two years before, while in Philadelphia, where there were several judgments unpaid, outstanding against her; and her property in Philadelphia has been sold away from her except a portion which was surreptitiously brought to Cape May. She appears to have opened with Mr. Bullitt the negotiations for the purchase, but no progress had been made to conclude them before Mr. Rogers the defendant, who had been boarding with her for several years before, and was at that time engaged to be married to her daughter, was brought into the dealings. Mrs. Hallenback herself states that she thought she had not sufficient money to go on with the purchase of the lots. The property was conveyed by Mr. Bullitt to Miss Hallenback, all parties agree, by the assent of the complainant and of Mr. Rogers and in the expectation of his marriage to that young lady. Mrs. Hallenback, in one part of her testimony, states that she paid through Mr. Rogers, on account of this purchase-money, about $500, and in another part that she paid about $1,000. This money she states she had saved and put away in a trunk, but she was unable to define with precision in what sums or at what time in the negotiations she gave it to Mr. Rogers.

On the other hand, Mr. Rogers swears that none of Mrs. Hallenback’s money was used in this first payment; He states Mrs. Hallenback did deposit with him some five or six hundred dollars in checks to be cashed, yet she afterwards drew out all the money to pay her outstanding bills and her daughter’s wedding outfit, and this Mrs. Hallenback does not contradict. He further testifies that he had at one time some $13,000 in cash in bank, and that he paid out of his own money the whole first payment of $1,000 by a check which he produces for that sum, drawn to the order of Miss Hallenback, whom he was about to marry. He says he made this payment for his intended wife because he wished the property to stand in her name.

Mrs. Rogers corroborates this testimony of Mr. Rogers that he paid this first $1,000. She identifies the check and states that the title to the property was taken in her name because Mr. Rogers was to give her the property.

This is the only payment of the purchase-money of any of the laud which Mrs. Hallenback in any way identifies (save as to the “Albert Cottage” hereinafter discussed) and which she claims to have made, and on this, while the burden of the proof is upon her to prove her allegations in the bill that she “ paid of her own money, on account of said purchase, to John M. Rogers for John C. Bullitt, about $1,000,” the weight of the evidence is against her.

All the deeds were, with Mrs.' Hallenback’s knowledge and agreement, made to her daughter. ■ All of the mortgages were made and paid by the latter and her husband.

After the first purchase from Bullitt additional adjoining lots were bought from Mr. Hulme and Mr. Stevens. Mrs. Hallenback does not claim to have contributed anything to pay for these additional purchases. These titles were all taken in the name of Mrs. Rogers, with Mrs. Hallenback’s consent, and the purchase-money was paid fully by Mrs. Rogers’ husband. The “ Marine Villa ” building, not at first known by that name, was erected in the year 1873 and the early part of 1874 on the lot first. bought. Mr. Rogers had married Miss Hallenback in October, 1873. The construction of the building was planned upon consultation of the whole family, and the construction of it was superintended by the different members of the family, Mrs. Hallenback being on the ground during the principal part of the oversight. The contracts for construction were made with Mrs. Rogers; the payments for the building were made by Mr. Rogers. Differences arose with the contractor as to the performance of the building contract, which was adjusted with the aid of Mrs. Hallenback’s consultation with Mr. Bullitt, but the payments continued to be made by Mr. Rogers. Additions were made to the building, which were paid for by Mr. Rogers. They consisted of a porch along the side and an extension of the kitchen, and finally, in 1891, of the erection of a fourth story and general reconstruction of the house, doubling its room capacity. All of this expense was admittedly borne by Mr. Rogers, save that Mrs. Hallenback claims to have aided in paying for the new kitchen.

During the whole period from 1874 up to 1894, Mr. and Mrs. Rogers and their children, and, at times, Mr. Rogers’ mother — in short, the whole family — lived in this property during the season in entire harmony. Mrs. Hallenback and Mrs. Rogers were mother and daughter to each other.

Mrs. Hallenback, during these twenty years from 1874 to 1894, conducted the boarding-house business in the “Marine Villa” in its original and its enlarged condition. She alone was recognized as the proprietor of it, not only by the public but also by Mr. Rogers and his wife. It was in fact as well as in name Mrs. Hallenback’s boarding-house. Nowhere in the evidence is there any suggestion that Mr. Eogers at any time assumed any right in the management or conduct of the boarding-house business, nor that his wife, the defendant Mrs. Eogers, assumed to have any control or authority over the business save that she once referred to it as carried on with her mother on “joint account.” Mrs. Hallenback testifies that Mr. and Mrs. Eogers had no management whatever in the boarding-house business — that was left solely to Mrs. Hallenback. Mrs. Eogers, she says, assisted her when it was necessary. Nor, on the other hand, during the whole twenty years between 1874 and 1894 does Mrs. Hallenback appear to have assumed any authority to make any contract touching the disposal of the “Marine Villa” by way of mortgaging, renting or other disposition. All such business was done exclusively by Mr. Eogers and Mrs. Eogers. They incurred all the mortgage debts on the property, and paid them, both principal and interest. Mrs. Hallenback’s acquaintance with the mortgages was so trifling that she declared that she was unable to state with certainty the amount which had been thus placed on the property. When the leases were made, during the years 1883, 1885 and 1886, they were made by Mrs. Eogers, apparently without any interference or direction from Mrs. Hallenback, and all the rent was collected by Mrs. Eogers, who, as Mrs. Hallenback testifies, gave her the first year, from the rent, some two or three hundred dollars, and the next year “ she paid me six hundred- dollars for my share of the rent,” but upon being asked how this $600 was fixed upon as her share, she testified, “it was not fixed at all, she simply gave it to me,” and, as to the first sum, she also says, when asked how it was fixed upon as her share, “it was simply given to me,” and during the other year that the property was rented, Mrs. Hallenback testifies that she didn’t get anything.

Mrs. Hallenback also states that she used the money received from the boarders to pay for improvements on the house and for running it, but she gives few statements of payments for real estate repairs or improvements which are of substantial character, which were shown to have actually been made by her before 1894. What happened after that date is to be judged from the events which occurred that year. So far as she shows payments made by her, it is quite apparent they were not made because of any claim by her that she owned the property. These payments were made in full view of the facts that she had the exclusive use and enjoyment of the property without paying any rent, and never in making any of them does she appear, until this suit was brought, to have claimed to either Mr. or Mrs. Rogers, or, indeed, to anyone else, that she had paid them as owner or claimant to any title in the property. There were occasional bills for repairs and the smaller improvements which Mrs. Hallenback paid, but none were accompanied by acts or statements indicating on her part a sense that she made them as joint owner or partner. She also refused, in 1893, to pay a bill for tinwork on “Marine Villa,” saying she had paid enough out on the house and would have nothing to do with it. I listened to her testimony with care, to observe whether she spoke of the property as if she felt that her ownership in it was shared by anyone else. Of her furniture, or her boarding-house business, she invariably spoke with expressions indicating a feeling that they were her very own. She narrated how she took from the “ Marine Villa ” part of the furniture she had brought there of her own choice, asking no permission of any supposed parties, and with it furnished the cottage which she individually owns. This removal was done in the presence of Mrs. Rogers herself, who did not object, though she took exception to one or two of the things which Mrs. Hallenback selected. Mrs. Hallenback always mentioned the household goods which she put into the “Marine Villa” as “my furniture,” “my bed linen,” &c., “ those things I considered my own,” and she never spoke of them as “ours” or in any way indicating her sense that anyone else than herself had any interest in them. This equipment was just as necessary to the fitting of the boarding-house as was the structure itself, if a partnership in that business were there to be carried on, but her testimony will be searched in vain to find anything which would indicate that Mrs. Hallenback considered that she had contributed her household goods to the equipment of a partnei’ship business

The boarding-house business itself she evidently regarded as her business- and not the business of a firm or partnership in which Mr. and Mrs. Rogers were members. She advertised it at the beginning and continuously until the present time in her own name, “ Mrs. E. Hallenback,” with never a suggestion that anyone else had a share in it. She testifies that she solely conducted and managed it. She received all the proceeds of this business and kept them in her own name in her own bank account. There is a statement that Mrs. Rogers received some of this money, but the latter testifies that until 1894 she had from the business nothing but such small amounts as a mother and daughter might either give to the other.

Mrs. Hallenback never furnished a statement or an account of the business from its beginning until the filing of the bill in this case, to either Mr. Rogers or Mrs. Rogers, who are asked to-be decreed to be partners with her, nor is there any testimony showing that she felt that she was so related to them that such a statement was due them. Nor do they appear to have asked any such statement, or to have supposed they had any right to it. They kept no account in respect to their transactions with her. No profits were ever ascertained, none were ever divided. After she had for many years been engaged in this boardinghouse business, Mrs. Hallenback admits or is shown to have made the following purchases in her individual name :

Cottage in Cape May................................................ $1,800 '
Lot in Cape May..................................................... 1,400
$3,200
And it is testified by Mrs. Bogers, without contradiction, that Mrs. Hallenback’s bank-book showed a single deposit of over.................................................. 7,000
$10,200

Mrs. Hallenback had no other means of gathering these moneys than her boarding-house business, carried on in the Marine Villa,” save back pension money which she received from the United States government and a small monthly pension. The back pension money she testifies was about $3,300 to $3,400. Of this she admits she used $1,300 to buy lots in Kingston, N. Y., and she claims that she used part of it to pay for the “Albert Cottage.” Mrs. Rogers states in her testimony that the pension money received by Mrs. Hallenback was $2,362.93.

Whichever account is true, it remains quite clear that Mrs. Hallenback had, during a series of years, received in her boarding-house business a very respectable sum of profits which she kept as her own individual property. She had no consciousness that either her daughter or son-in-law, now sought to be decreed her partners, had any right to share in these profits, and I think her feeling was justified by the actual truth of their relations. They were not partners and had no right to share in these profits.

In addition to these holdings of large assets in her individual name by Mrs. Hallenback, the entire absence of any attempt to keep or furnish accounts as between partners makes it difficult to believe that she understood she was acting as a partner of Mr. and Mrs. Rogers in earning these values.

In the matter of keeping accounts there were none kept of any partnership character. No partnership bank account was ever opened, nor were any bills rendered as due to any partnership. From 1874 until 1891, seventeen years, the books opened were simply a cash-book and a hotel register. This is Mrs. Hallenback’s own testimony. She further swears that as to the moneys she says she paid Mr. and Mrs. Rogers during the earlier years she has no account — “we never took any account between us.”

She admits that she has no means of ascertaining what moneys were expended by her between 1874 and 1892. When it is remembered that during all this time she had the sole management of the business, how can it be believed she understood she was acting as a partner in charge when she took no steps to show to her copartners what there might or might not be in the way of profits in the business, or even to preserve the means for-such a showing if it should be at any time demanded ? Several books, which were stated to be all that Mrs. Hallenback had, were offered in evidence by the complainant, but were instantly withdrawn by the complainant when objected to by the defendants.

It was testified by Mrs. Hallenback that the books of the “Marine Villa” had been left in the house in the spring of 1897, and that they were in the possession of Mrs. Rogers. But the latter explicitly denies that she has them or any knowledge of them except the register-book of the hotel.

As to any actual agreement or contract between the parties, Mrs. Hallenback herself first testifies that she never had any conversation with Mr. or Mrs. Rogers about what business should be carried on in the proposed boarding-house (the “ Marine Villa ”) after it was built, then she states that her daughter and her husband knew the purpose for -which the house was to be built, and that they all talked about it, but not at any special conversation. She -was then asked not what she and the other parties agreed to do, or whether there was any agreement for a partnership or joint business, but “for what purpose was this house to be built?” and she replied, “for me to continue my boarding-house there.” Not a partnership boarding-house, but “my boarding-house.” Not to start a new business as a partnership, but for her to continue her old one. She subsequently testified that Mr. and Mrs. Rogers and she talked of what should be done with the money that should come in from the boarders, and that this talk was that this money should be used in the house for improvements on the house, and things that were necessary to buy, and the running of the house.

I am unable to find from Mrs. Hallenback’s testimony that there was any agreement or contract between this lády and her daughter and son-in-law, touching the purchase of the lots and the erection of the “Marine Villa” boarding-house or-the conduct of the business there. She originally intended to buy the lot herself; on Mr. Rogers’ offer to pay for the property, if the title were put in the name of his fiancée, she assented, and the weight of the testimony shows.that he paid the whole of the purchase and mortgage moneys and for all improvements, save trifling sums expended by Mrs. Hallenback.' These latter she does not appear to have laid out as owner of the property, but rather as a non-rent paying occupier, and as the mother of the owner, the testimony indicates that she was probably more than repaid by Mr. Rogers’ expenditures in aid of her boardinghouse business.

The testimony of Mr. and Mrs. Rogers is explicit in denial of any agreement or contract of partnership whatever. They say that Mr. Rogers bought and paid for the first and succeeding purchases, and for the house and its improvements for his fiancée and wife. Mr. Rogers testifies it was his intention when he went into it to make a home for all of them. He carried out his intention subsequently, and Mr. and Mrs. Rogers and their children and his mother used the house during the season, and without charge. Mr. Rogers denies that Mrs. Hallenbaek paid to him any moneys in assistance of the raising of the purchase or mortgage moneys. He states that there was no agreement of any kind in relation to the property, and that there never was any up to the year 1894, and that he never conducted a partnership business with Mrs. Hallenbaek.

Mrs. Rogers states that the title to the property was taken in her name as a gift from Mr. Rogers, to whom she was then engaged to be married and whom she subsequently married ; that no arrangement was ever made between Mrs. Hallenbaek and herself or Mr. Rogers in relation to the conduct of the business and that no agreement of partnership was by her intended to be made.

The complainant insists that the testimony óf Mrs. Rogers that there was no agreement was shown to be inconsistent with a previous statement made by her under oath in a suit in the supreme court of New Jersey, on February 18th, 1885. That suit does not appear to have involved the questions here mooted. In the course of an affidavit taken by her in that matter, Mrs. Rogers used these words in speaking of the Marine Villa: ”

The house here has always been owned by me, and has been kept by my mother and me, on a joint account, as a boarding-house; the house at 2051 Walnut street, Philadelphia, was kept by my mother ; I had nothing whatever to do with the house at Philadelphia, but the house here I always did have something to do with.”

I am unable to find that these words indicate a partnership in the “Marine Villa” real estate property, which it is the object of this suit to have dealt with as partnership property. There is in this affidavit an explicit declaration of ownership of the’ bouse by Mrs. Rogers in her own proper person, and no suggestion that any interest was owned by anyone else. Mrs. Rogers, when she took the affidavit, evidently had the ownership of the house and also the personalty of her mother in mind, and nothing is stated which recognizes any holding of any interest in the house by Mrs. Hallenback. The utmost force that can be given the declaration is its statement of keeping of the boarding-house business in that house by Mrs. Hallenback and Mrs. Rogers on joint account.

The testimony of Mrs. Hallenback herself in this case is wholly incompatible with the view that in 1885 and before, Mrs. Rogers and Mrs. Hallenback kept the boarding-house in the “Marine Villa” on joint account. At that time Mrs. Rogers was assisting Mrs. Hallenback in keeping the house perhaps more actively than at any other period. The house had been let during the season of 1883 to Mrs. Wylie, and was run in 1884 by Mrs. Hallenback. Miss Harrison rented it in 1885, but not until July of that year. So that Mrs. Rogers, in February, 1885, was speaking as of the season of 1884, and it may be that her reference to the matter was based upon her position as her mother’s assistant. The deposition in question was taken in narrative form and not by question and answer, and may not have expressed the precise words of the witness herself. Giving to it, however, the full force of an admission in the very words noted, it is entirely overborne by the weight of the evidence, as shown in the testimony of Mrs. Hallenback herself, in that of Mr. Rogers and by the whole narrative of events in this case. These all go to show that so far as ownership of the boardinghouse business was concerned Mrs. Hallenback herself, individually, disassociated from both her daughter and Mr. Rogers, was the owner of the boarding-house business conducted in the “Marine Villa” from 1874 up to the spring of 1897 (except during the three years it was rented to other parties), and that during a portion of that time Mrs. Rogers was her assistant.

In the year 1894, there was a decided change in the relations of the parties touching the “ Marine Villa.” Previous to that time Mrs. Hallenback had, during the years that she had the house, used it and held it without either agreement or demand for any. Desultory payments had been made by her for minor improvements and repairs, but without relation to any contract or undertaking on her part to make such payments. She was, in making them, a mere volunteer. In this year, 1894, Mrs. Rogers insisted that a definite sum be paid her by way of rent. She asked Mrs. Hallenback to sign a lease as lessee of the “ Marine Villa.” The latter refused to sign such a lease. In the dealings touching the matter, the services of Mr. Hildreth, Mrs. Rogers’ lawyer, seem to have been called in, and Mrs. Hallenback, it is admitted, paid Mrs. Rogers $3,000 by a check dated August 16th, 1894. Mrs. Rogers testifies that this payment was made pursuant to an agreement she had with Mrs. Hallenback, to the effect that Mrs. Hallenback should pay her for the “Marine Villa” $3,000 a year and also the taxes, insurance and water rent. Mrs. Hallenback states the agreement in these words:

“Q. Was that check not paid by you to Mrs. Rogers in pursuance of an agreement entered into between you and Mrs. Rogers that you should pay her §3,000 a year for the ‘Marine Villa/ and should pay in addition thereto insurance and taxes on the ‘Marine Villa?’
“A. No.
“Q. You state you did not make such an agreement?
“A. Didn’t.
“Q. What agreement did you make ?
“A. That if I made money that summer I would give her ?3,000 — -if I made enough money that summer to do it.”

It may be noticed in passing that Mrs. Hallenback’s own statement of this agreement negatives the possibility that she was a partner of Mrs. Rogers or that the latter had any interest in the boarding-house business. The payment was to be made if Mrs. Hallenback made enough money, not if any partnership made it, and the occasion for the agreement was Mrs. Rogers’ demand for payment to her for the use of the “Marine Villa,” not for a share of profits of the boarding-house business.

In point of fact, Mrs. Hallenback did pay the $3,000 by a check dated August 16th, 1894, which was a very early period for Mrs. Hallenback to have ascertained that she had, during that summer, made enough to pay Airs. Rogers $3,000. This payment was the first which Airs. Hallenback had made in response to a demand by Airs. Rogers as owner of the “ Marine Villa.” Airs. Hallenback had not dissented in any way from Mrs. Rogers or disputed the latter’s right when she demised the “ Alarine Villa,” in 1883, 1885 and 1886, and took the rents, but Airs. Hallenback had never, before this time, herself paid anything upon demand of a return for the use of the Marine Villa.” Airs. Rogers states that the demand was made because Air. Rogers had invested so much money in the house and they had had no revenue from Mrs'. Hallenback. It is quite natural to believe it was also stimulated to some extent by the discovery of Airs. Rogers, in 1893, that Airs. Hallenback had at one time made a deposit of $7,000 in her individual bank account.

There is no proof whatever to show that this payment of $3,000 was in any way profits of a partnership. It was, on Airs. Hallenback’s own showing, a payment made by her out of the profits which she had realized in her own business and on a demand made that she pay for the use of the “ Marine Villa.” The amount was so large that it cannot be classed with the previous occasional payments made by Mrs. Hallenback, and its relation to the demand for a rent of precisely that sum certainly goes far to support the claim that it was by way of rent. Mrs. Rogers states that the same arrangement was to have been observed in the next year also, and that in that year, 1895, Mrs. Hallenback paid her by check $500, $2,000 and a smaller amount, about $150, and also paid the taxes on the “ Marine Villa,” $360.50. The parties are in contradiction as to these payments, not on the point whether they were made, but as to what they were made for, Mrs. Rogers insisting that they were made for the rent or use of the Alarine Villa ” and Mrs. Hallenback that she paid $500 and $2,000 on account of the purchase of the “Albert Cottage.” I will discuss these variant claims in connection with the purchase of the “Albert Cottage.”'

The next year (1896) there appears to have been a marked falling off in Mrs. Hallenback’s payments to Mrs. Rogers. The latter testifies that but $411 was, paid her in 1896 for “Marine: "Villa.” It appears that Mrs. Hallenback paid, on September 9th, 1896, for the insurance $296.90 at the request of Mr. Rogers. There is some dispute as to the payments made, but no claim is set up that they amounted to any such sums as were paid in 1894 and 1895. A disagreement arose at the end of this season because no revenue was received by Mrs. Rogers from the “ Marine Villa,” resulting in Mrs. Rogers taking possession of that property in the spring of 1897, excluding Mrs. Hallenback therefrom, and shortly afterwards this suit was brought.

The purchase of the “Albert Cottage” is another point.of variance in the testimony of Mrs. Hallenback and her daughter. Mrs. Hallenback, by her bill, claims to have purchased this property herself, and on that bases her claim that it is partnership property. She states that she assented that the title should be in Mrs. Rogers’ name, and she claims that all the payments for this “Albert Cottage” have been made partly out of the business of the “Marine Villa” and partly from pension money received by her, Mrs. Hallenback.

Mrs. Rogers denies this and explains that she purchased the “Albert Cottage ” herself, and that the rent which Mrs. Hallenback paid her for the use of the “Marine Villa” for 1895 was used to make the first payments on this “Albert Cottage.”

In examining these contradictory statements, light is afforded by the letters of Miss Albert, with whom the negotiations were conducted. These letters were all addressed to Mrs. Rogers and evidently considered her to be the intending purchaser, and do not recognize Mrs. Hallenback as having any interest as owner. Furthermore, this transaction took place in 1895. During the previous year, in 1894, Mrs. Hallenback had been in dispute with Mrs. Rogers as to paying rent to the latter for the Marine Villa.” In the purchase of the “Albert Cottage ” the deed was, with Mrs. Hallenback’s knowledge and consent, made to Mrs. Rogers, and the bo.nd and mortgage-for $17,500, securing the payment of the residue of the purchase-money, was made by Mrs. Eogers and her husband. Is it credible that Mrs. Hallenback, if she, in fact, purchased the “Albert Cottage,” would, in view of her very recent dispute with Mrs. Eogers as to the “ Marine Villa,” have consented that Mrs. Eogers should take the title to the “Albert Cottage ” while Mrs. Hallenback paid this large cash payment? And this, too, without any arrangement acknowledging or indicating that Mrs. Hallenback had any interest in the “Albert Cottage” property? On the other hand, remembering the previous disputes as to the “ Marine Villa,” is it probable that Mrs. Eogers would have been willing to obligate herself individually for the $17,500 of the purchase-money for the “Albert Cottage,” if, in fact, Mrs. Hallenback had paid the cash payment and had an interest, unless that interest was in some way defined or limited ? Would Mr. Eogers or any business man have probably consented to such a scheme, in view of the recent differences arising from Mrs. Hallen back’s refusal to accept a lease for the “Marine Villa?”

It is insisted that Mrs. Eogers admits that all the money for this first payment on the “Albert Cottage ” purchase came from Mrs. Hallenback. This is true, but Mrs. Eogers also explains that this money, when it came from Mrs. Hallenback, was by her paid for her use of the “ Marine Villa ” during the year 1895, and Mrs. Eogers further states that the payment to Miss Albert was in fact her own, having been made to the Alberts by her arrangement; that is, the money being due from Mrs. Hallenback to Mrs. Eogers was by the latter’s order paid to her creditor, Miss Albert.

The deed conveying the “Albert Cottage ” was, by Mrs. Hallenback’s assent, made to Mrs. Eogers individually, and the. latter at once assumed the absolute ownership. In 1896 she (Mrs. Eogers) rented this “Albert Cottage ” and its furniture to. the French ambassador, M. Paternotre, for $1,500, and took all the rent, and it does not appear that Mrs. Hallenback ever complained that this was in any way an injustice to her rights.

I think the weight of the evidence on this point is against Mrs. Hallenback’s claim that she made these payments of the purchase-money of the “Albert Cottage.”

Iii the foregoing review of the case I have considered the complainant’s claim that there was in the properties named a partnership which she seeks to have dissolved and touching which she asks an accounting. If the relationship of the parties was that of partners it must certainly have been of a novel sort — a partnership inter sese, without any agreement between the parties, the claimant that there was such a relationship not stating that she intended to enter into it, and the other parties denying that they ever had such an intention, nor is any action touching a common business shown which indicates such an intent — a partnership with no property held by the partnership, either in title or in use, without either ascertainment or division of profits, gross or net, and without any agreément that there should be any such division, and without any agency or action of the supposed partners for each other about the partnership affairs.

I cannot reconcile such a showing with established principles in this branch of the law of contracts. In Wild v. Davenport, 19 Vr. 131, Mr. Justice Depue, speaking for the court of errors, thus states the law: “Inter sese, the fact of partnership, as well as the rights, duties and obligations of partners, arise wholly from the terms of the contract.” In the case in hand there is no agreement or contract shown even by the testimony of the complainant herself. Robbins v. McKnight, 1 Halst. Ch. 645, came up oil appeal from this court, and the question of the existence of a partnership inter sese in the property in dispute was raised. Chief-Justice Green, delivering the judgment of that court, declared that to Constitute a partnership as between the parties themselves there must be a joint ownership of partnership funds.” The joint ownership of property is thus made an essential requisite of the relation of partnership when asserted inter sese. Where the question presented turns upon the ownership of property by the partners, it is difficult to conceive how there could be a partnership when it appears that the property is owned in severalty and that the supposed partnership has no interest either by way of title or use which is common to all its supposed members.

I am unable to find any agreement in the case under consideration, whereby there was any property in which the complainant and defendants have any common interest. The title to the properties in question is admittedly severally in Mrs. Rogers, and, in my view, the use of the “ Marine Villa ” by Mrs. Hallenback, and of the “Albert Cottage” after its purchase, was in-no sense jointly with Mr. and Mrs. Rogers for a common purpose, but distinctly severally for herself in conducting her own individual business. All the testimony indicates that nothing could have surprised Mrs. Hallenback more than would the appearance of Mr. and Mrs. Rogers at her desk asking to see her books of the business, her bank account and check-books, or exercising any other privilege, such as is an every-day occurrence between partners.

The essential test of the existence of a partnership is stated in the judgment of Lord Cranworth in Cox v. Hickman, 8 H. L. Cas. 268. His lordship declared that the real ground of liability is that the trade or business has been carried on by persons who acted in behalf of the person sought to be charged, with his knowledge or permission. When parties so associate themselves or so hold themselves out to others, they are liable to the trade obligations and are entitled to share in its profits. The principle stated in Cox v. Hickman has been accepted in our courts (Wild v. Davenport, ubi supra), and is of value in ascertaining the status of the parties in the case under consideration, for it established the rule that a person not actually engaged in the business as a partner and not holding himself out as such cannot be held even by creditors to be a partner because of sharing in the profits, unless by virtue of some contract expressed or implied creating that relationship. Seabury v. Bolles, 22 Vr. 107. In the present case there was no showing, nor indeed was any claim made even in argument, that there was any express agreement between the parties to enter into the relation of partnership, nor any sharing of profits, nor did any of the supposed partners ever act for the others touching any partnership or common business.

It is insisted that the payments by Mrs. Hallenback for the improvements, repair or purchase of the property standing in the name of her daughter, Mrs. Rogers, and the various acts of benefit by Mrs. Hallenback done and accepted by Mr. and Mrs. Rogers concerning that property, necessarily imply a contractual relation of partnership between those parties. When it is suggested that the contributions of value by the several parties have no relation to any proportional interest which the parties held in the premises, the complainant contends that this need not occasion embarrassment, as it may be readily adjusted by the application of the rule that “ equality is equity,” and each of the parties may be held to have a third interest in the “ Marine Villa ” and the “Albert Cottage,” the titles to which stand in the name of Mrs. Rogers.

I do not think the evidence of the various acts of the parties in interest justifies such a judgment. This would be to impose upon the parties a position not intended or contemplated by them, which, if it existed, must have arisen because of their express agreement or because their acts and representations to each other touching the premises necessarily lead to the conclusion that they had so agreed. In Wilson v. Cobb, 1 Stew. Eq. 177, Vice-Chancellor Van Fleet declared that “ there is no such thing as a partnership by implication or operation of law. The relation inter sese is founded in voluntary contract and cannot exist independent of it. As to third persons, the relation may exist in spite of an agreement that it shall not.” The decree in this case was reversed because the court of errors took a different view of the facts, but the vice-chancellor’s statement as to the law of partnership inter sese was not criticised. See 2 Stew. Eq. 361.

But if it be assumed that Mrs. Hallenback did, in fact, pay part of the purchase-money of the “Marine Villa” and of the “Albert Cottage,” as there is no proof that these payments were made under any agreement therefor between the parties, what effect would such payments have in view of the kinship of the parties? On this assumption Mrs. Hallenback paid her money and consented that the titles should be conveyed to Mrs. Rogers. They were mother and daughter, the latter being the only child of the former. Whatever money Mrs. Hallenback expended on these properties was so spent with full knowledge that her daughter, holding the title, was receiving the full benefit of the payments.

Between strangers, if a conveyance of the legal estate be made to one and the payment of the purchase-money by another, a presumption arises that the party receiving the legal estate holds it in trust for the person who pays the purchase-money, unless this presumption be overcome by proof that it was the intention of the party advancing the purchase-money that the grantee in the conveyance should take beneficially. Our courts have frequently enforced this rule, but it is just as well settled that where the parties hold to each other the relation of parent and child or husband and wife, a contrary rule prevails. Where a parent pays the consideration and has the conveyance made to the child, no such presumption arises from the payment of the consideration. “ In such cases,” the court of errors has declared, the presumption is that an advancement or settlement was intended, and a resulting trust will not arise unless the presumption that the transaction was intended to be a gift be overcome by proof.” Read v. Huff, 13 Stew. Eq. 234; Peer v. Peer, 3 Stock. 432.

In the case under consideration, far from overcoming this presumption, there is no evidence which antagonizes it. The sum of the proofs on the point is consistent with the legal presumption that Mrs. Hallenbaek in expending her moneys, knowing the titles were held in the name of her daughter, had neither belief that there was, nor intent that there should be, any contractual relation between them as to these payments. They were gifts.

I will advise a decree dismissing the complainant’s bill, with costs.

An order to show cause why a receiver should not be appointed and an injunction issue according to the prayer of the bill, is pending and unheard. The disposal of the case upon the final hearing makes it unnecessary to consider the questions raised by this order, and I will advise its dismissal.


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    William B. Sinclair v. Helen M. Sinclair.
    [Decided May 30th, 1898.
    Filed June 20th, 1898.]
    1. Where a defendant’s testimony is discredited by documentary proofs and by the contradiction of other and disinterested witnesses in relating facts of which all may have knowledge, her testimony cannot be relied upon when narrating incidents (the truth of which is essential to her defence) whióh lie solely within her knowledge.
    2. When a woman who is with child conceals that fact, and induces a man who has had no sexual relations with her to go through the ceremony of marriage to her in good faith, and the man on discovering the truth separates from her and files his bill in this court for a declaration that the supposed marriage contract is a nullity because of the fraud she has put upon him, he is entitled to a decree that the supposed marriage has been void ah initio.

    3. A counsel fee will not be allowed the defendant on a bill filed by a man to declare his supposed marriage to a woman to be a nullity.

      Mr. Isaac W. Carmichael, for the complainant.

      Mr. Malcolm MacLear, for the defendant.
   Grey, V. C.

In this case the complainant seeks to have the marriage between him and the defendant to be declared void because he alleges that he had no carnal knowledge of the defendant before the marriage; that she induced him to enter into the contract fraudulently concealing the fact that she was at that time with child by another man, and that he did not discover this until some months after the marriage, since which time he has not associated in any way with his wife.

This charge against the defendant she explicitly denies. She admits that she was with child when she married the complainant, but she insists that they had sexual relations before the marriage, and that he was the father of the child of which she was enciente at the time of the marriage. She testifies that she had no attentions from any other man than the complainant before her marriage to him.

The marriage took place in May, 1894, and the defendant on her own insistment went with her mother to California on a visit to her sister in October, 1894. She gave birth to a child admitted to have been born after the full period of gestation, on the 17th day of November, 1894. Numerous letters from the defendant to the complainant are produced. There are four or five written after November 17th, 1894; in these the birth of the child is not referred to. She declares that all these letters are forgeries because, she says, she mentioned the baby in every letter she wrote after its birth.

The contention of the complainant is that the defendant contrived the visit to California for the purpose of concealing from him the date when the child would be born, and to make him believe its birth was at the full period of nine months after the marriage; that when the child was born on November 17th, only six months after the marriage, she wrote the letters shortly after that date, and up to February 17th, 1895, making no reference to the birth of the child, and at the latter date she wrote the first letter mentioning the birth of the child. This letter is not dated; it states that the child was born “on the 17th of the month,” without stating what month. This letter the complainant states he received by mail in an envelope post-marked February 26th, 1895.

The defendant admits this letter is genuine, but states that it has been transferred from an envelope in fact mailed in November, 1894, shortly after the birth of the child, to make it appear that it was written and sent in February, 1895.

From the above narration of the positions of the parties it is quite plain that the truth of the wife’s statements may be tested by examining whether the evidence indicates that she had received prior to her marriage, from a man other than her husband, those attentions which she testifies she never had, and whether the weight of the proofs shows that the first letter referring to the birth of the child was, in fact, written and sent in the latter part of February, 1895, and whether the letters written from defendant to complainant after the birth of the child and before February, 1895, which make no mention of the child, are forgeries as stated by the defendant. .

The defendant, in the broadest terms, denies that she had accepted any attentions from any other man than her husband at or before the time of her marriage. The testimony of a disinterested witness shows that she did, in fact, receive the attentions of a man whose engagements brought him almost daily to the house where she lived. With this same man she is shown to have been sitting up in private at night, frequently after all the members of the family had gone to bed; this was for some time previous to the marriage and probably after it. She is also shown to have been seen sitting in this man’s lap within the period of time that she denies any attentions. When a woman permits a man to take her on his lap, the belief that he had made some progress in her affections, is certainly natural. But when, in connection with the proof of this fact, it appears that she desires to create the impression that she received no such attentions, and the fact is only disclosed by the evidence of an unobserved witness, her denial leaves her veracity in doubt. If her claims that the letters are forgeries, and that the letter announcing the birth of the child was transferred from its envelope, are to be accepted as true, it must be upon the testimony of the defendant alone. If she, interested to defend herself, is discredited in matters touching which a disinterested witness testifies, how can she be believed when testifying of matters which she knows lie solely in her own knowledge? I am compelled to believe that the defendant was consciously falsifying when she denied that she had received any attentions from any other man than her husband, and her credibility being thus impeached the value of her testimony on other points must be lessened accordingly.

Taking up the question of the alleged forged letters written shortly after the date of the birth. The defendant testifies that she wrote no such letters, and her only reason for the denial of them is her assertion that she wrote no letters after the birth which did not mention the child. These letters, some three or four, can be compared with a large number of admittedly-genuine letters written by the defendant. They have been compared by an expert who swears they are genuine. I think they plainly show on examination that they were written by the same hand as were the admittedly-genuine letters. If these letters be forgeries they must have been wholly forged or changed, by the complainant, who produces them and claims to have received them by due course of mail. They are accompanied by envelopes bearing mail-stamping of dates corresponding to the dates of the letters. This is of no great evidential force, as the letters, if forged, might have been placed in the genuine envelopes. But the chirography of the letters which are challenged is evidently the same as those which' the defendant admits she did write, and the addresses on the envelopes are of like genuineness. These letters cannot be held to be forgeries, either by original preparation or by change, unless it is also considered! that the complainant has added perjury to forgery in his effort to maintain their truth. His evidence is not contradicted by any other witness than the defendant, and is in fact supported both by the documentary proofs and outside witnesses. The letters must be accepted as genuine.

The most convincing evidence of the defendant’s untruth is, however, found in the utter failure of her claim that the letter announcing that the child had been born “ on the 17th of the month” was written and sent in November, 1894, and not in February, 1895. This letter was received from the post-office by the complainant, as he swears, in the latter part of February, 1895. His father was with him at the time and corroborates the statement of his son. The letter was opened by the complainant and shown to his father. Both noticed that the letter had no date and that the date of the post-office stamping was in February, 1895. Both were anxious to know when the child was born, and observed the oddity of the wording and want of date in the letter.

This testimony of the complainant, supported by that of his father, and the character of the letter itself, compel the belief that it was sent in February and not in the preceding November.

On arriving at these conclusions on these points, the whole fabric of the defence falls to pieces. Its character is such that the failure puts the defendant in the worst possible position, because if the defence set up is false, the proffer of it and its refutation are overwhelmingly convicting. It is like a case where all the circumstances show that a man has committed a crime, except one theory and that depends upon an alibi, which the defendant attempts to prove, and makes no other defence, and fails to sustain his alibi. If every other circumstance points to his having committed the crime, and he fails in his alibi, the conclusion is almost forced that he must be guilty.

This woman’s whole defence depends on her claim that her husband did have connection with her before their marriage and begot her child, and all these other facts are necessary to support that theory. Yet she is contradicted by her husband as to the first fact, and where it is possible to contradict her she is opposed by outside witnesses and by her own letters. Nothing is shown which would lead me to doubt the truth of the testimony of these disinterested witnesses.

In my view the complainant has shown that at the time of their marriage the defendant was with child by another man, and fraudulently concealed this fact from him. This condition made it impossible that the defendant could at ' the time of her marriage perform that part of her marriage contract which bound her to accept impregnation only from him.

A series of facts substantially the same as those presented in this case was shown in the case of Carris v. Carris, 9 C. E. Gr. 516. The question of the jurisdiction of this court to declare a marriage to be void for such a fraud was fully considered by the court of errors and appeals and was sustained. This case has been followed in several others in this state, and it seems to be settled that such a fraud where the husband had no antenuptial sexual relations with his wife, and has not condoned her fault on discovering it, may be the basis of a decree by this court declaring the marriage contract to be void ab.initio. The evidence in this case justifies such a decree, and I will advise it.

Mr. MacLear, of counsel for defendant, asked that a fee be allowed him,

The Vice-Chancellor — As to the question of a fee to Mr. Mac-Lear as counsel for defendant: A bill to nullify a marriage stands on a different footing from a bill for a divorce. The former bill does not pray that the complainant shall be divorced from the bonds of matrimony, but it sets out the ceremony of marriage, the incidents of the fraud which has been perpetrated, and asks that the marriage may be declared a nullity ab initio. The rule allowing counsel fees in divorce cases is based upon the existence of the relation of husband and wife, and the obligation of the husband to support his wife; but where a final decree of nullity is made it establishes the fact that there never was any relation which created such an obligation.

I will hear counsel, if they desire it, on the point whether in such a case a fee to the defendant’s counsel can properly be allowed and charged against the complainant, who in the same decree is declared never to have been her husband. In my present view there can be no such allowance.


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    Wesley String v. The Camden and Blackwoodtown Turnpike Company.
    [Filed July 5th, 1898.]
    1. Where the only provisions of a turnpike road company’s charter which authorize the corporation to charge tolls empower it to “ demand and receive tolls for traveling each mile of said road not exceeding the following rates,” specifying rates for several vehicles drawn by one or more beasts, a man traveling the turnpike road upon a bicycle is not within the class from which the company is authorized to exact tolls, and the company has no power tó collect them from such a rider.
    2. The charter does not authorize the collection of tolls from everything which may travel the turnpike road, limiting only the rate which may be charged on the things named. It gives power to take tolls from the specific things named, at the specified rates, and from no others at any rate.
    3. The act of March 28th, 1892. (P. L. of 299 p. %99), which authorizes turnpike road companies which have faced their roads with stone to collect tolls from bicycle riders, has no application, under the pleadings, to this case.
    On bill, &c.

      Mr. Henry Hollinshead, Jr., for the complainant.

      Mr. George Reynolds, for the defendant.
   Grey, V. C.

The complainant has been stopped in riding his bicycle over the turnpike road of the defendant company and compelled to pay tolls under the defendant’s claim that it has the right to exact toll from a bicycle rider traveling its turnpike road. It insists on its right to continue such collections, so that the complainant is unable to ride his .bicycle over that turnpike without being forced to stop and pay toll. He denies the authority of the defendant company to collect tolls for the traveling of a bicycle rider on his wheel over that turnpike, and prays that it may be enjoined from so doing.

The defendant demurs to the bill, alleging.as its ground of demurrer its lawful right to charge tolls for traveling on a bicycle over its turnpike.

The question is, therefore, has the defendant company a lawful right to exact tolls from the complainant for riding a bicycle on its turnpike?

Whatever rights the defendant has to enforce the payment of tolls must arise from the powers given it by the legislature. The provisions of its charter (P. L. of 1855 p. 434 § 8) declare

“ That as soon as the said company shall have constructed five miles of the said turnpike road * * * it shall and may be lawful for the said company to erect gates on turnpikes, across the same, and to demand and receive toll for traveling each mile of said road, not exceeding the following rates, to Wit: For every carriage, sleigh or sled, drawn by one beast, one cent; for every additional horse, one cent; for every additional beast, five mills; for every horse and rider, or led horse or mule, five mills; for every dozen of calves, sheep or hogs, five mills; for every dozen of horses, mules or cattle, two cents,”

with further provision that on non-payment of tolls as above specified, passage over the turnpike may be stopped, with a penalty of $20 for forcing a passage.

It will be noticed that every vehicle for the passage of which the defendant company is authorized to make a charge must be drawn by a beast.

The ■ defendant claims that by the true construction of its charter, the eighth section must be held to declare that it shall be lawful for the company to erect gates across the turnpike and to demand and receive toll for traveling each mile of the road; and that these words only are to be considered in defining the power granted that the words which follow in section 8, prescribing rates, are not a limitation upon the grant of power to charge tolls upon everything traveling that road, but only a definition of the amounts which may be charged against the specified things for which a rate is given; that the bicycle has been defined to be a carriage (Gen. Stat. p. 2940 ¶ 570), and that the defendant company has power to charge a reasonable rate against a bicycle rider because he is traveling its road.

In Camden and Amboy Railroad Co. v. Briggs, 2 Zab. 641, the chancellor, in delivering the leading opinion in the court of errors in a case involving the construction of a charter authorizing the building of a railroad with power to charge tolls, declared that a corporation, being a creature of the law, has just such rights and powers as the law creating it gives it, and no other. It was decided that a grant to construct a railroad from the Delaware river to Raritan bay, and to charge tolls thereon, did not authorize the collection of tolls for carriage of passengers or freight over the waters of the river or bay named.

The grant of a power to construct a turnpike road carries with it no implication of authority to collect tolls. This high franchise can only be exercised by virtue of an express grant.

In the defendant’s charter it is authorized to receive tolls, not exceeding the rates named, for carriages, sleighs and sleds drawn by a beast, and for, the animals named traveling the turnpike. No authority is given to charge for a carriage, &c., drawn or moved otherwise than by a beast, nor for any other animals traveling the road than those which are specified. The words used in conferring the power to charge for these specific things traveling the turnpike cannot be wrenched from their proper relation in order to confer a general power to charge tolls for anything traveling that road.

If such a construction were given this charter, the defendant company would have power to collect tolls from everything traveling its road. The rate would be fixed by the charter on all the things specified, but the company could charge at its will on everything else that traveled the road, including even men and women walking, and therefore traveling the road. The legislature made no such grant of power, and no court will force such a construction.

The supreme court of this state in the very recent case of Gloucester and Salem Turnpike Co. v. Leppe, 33 Vr. 92, held that the charter of the plaintiff company, which contained words of grant similar to those under consideration, gave no power to collect tolls for riding a bicycle over the plaintiff’s turnpike road.

No additional grant by way of supplement authorizing the tolling of bicycle riders is shown in the bill. There is an act (P. L. of 1892 p. 299) enabling a turnpike company which improves its road by coating it with stone, to charge “ for every bicycle or tricycle one cent per mile” for traveling over so much of its road as it has so improved, when the company has filed a certificate in the office of the secretary of state, showing the length of the road and the number of miles it has faced with stone. No allegation in the bill indicates that the defendant company has in any way complied with the terms' of this act, so there is no occasion in this case to discuss its provisions.

The complainant is entitled to have a restraint against the defendant company, prohibiting it from extorting unauthorized tolls as a condition of traveling the defendant’s turnpike.

I will advise a decree that the demurrer be overruled, with costs.