text:
    Lawrence O’Connor v. Peter Tyrrell et al.
    1. A contract for the sale of land contained this provision: “ Said party of the second part [O’Connor] shall have possession of said premises on the 14th day of May, 1894, and in the event of the failure of said parties of the first part to deliver the deed at the time and in the manner hex-einafter referred to, the said parties of the first part hereby agree to repay to said party of the second part the said sum of $250, heretofox-e paid as part of the considex-ation money, and in addition thereto, such sum, not exceeding $1,250, as said party of the second part shall have paid upon the examination or guarantee of the title to said premises, or in the repair, improvement or furnishing of the building or ground, or the survey thereof, or shall have in any way-incurred or expended in the preparation for the purchase of and taking of title to said premises, not exceeding the said sum of $1,250, such payment to be accepted by said party of the second part as liquidated damages for any breach of this agreement by the said parties of the first part; and in event of the failure of said parties of the first part so to deliver said deed at the time herein stated, said party of the second part hereby agrees to surrender possession of said premises within fifteen days from June 26th, 1894, to James Tyrrell, one of said parties of the first part hereto. And said party of the second part shall not, under any circumstances, be held to be liable for any rental for the occupancy of said premises.”
    2. The parties of the first part arbitrarily refused to deliver the deed —Held, that the repayment, stipulated as liquidated damages, was not provided for the case of such a breach of the contract, but for failure after bona fide effort to make title to the pux-chaser; hence, in the absence of the appearance of such failure, that the question whether equity will specifically enforce the performance of a contract in which liqxxidated damages are agreed upon for its breach, does not arise.
    On motion to dismiss bill.

      Mr. Charles L. Corbin, for the motion.

      Mr. John Garrióle, contra.

   The Chancellor.

The motion is made in virtue of the two hundred and thirteenth rule, and takes the place of a demurrer to the bill.

The case presented by the bill is this: James Tyrrell, for himself and as attorney in fact for others who are co-tenants with him of certain land in the city of Bayonne, on the 20th of April, 1894, agreed to sell that land to the complainant for $7,250, of which $250 were to be paid upon the execution of the agreement of sale and the balance was to be paid upon the delivery of the deed on the- 21st of the following May, $5,000 in cash and the remainder by assumption of the payment of a mortgage of $2,000, by which the property was encumbered. Upon examination of the title, it was discovered that the power of attorney under which James Tyrrell assumed to act for his co-tenants, who lived in Ireland, though duly executed, was defectively acknowledged by some of the co-tenants. Therefore, it was agreed that, instead of having the power of attorney re-acknowledged, the deed should be directly executed by all owners of the property and be sent to Ireland for that purpose. As more time would be required in such execution than the terms of the contract of sale would admit of, a new agreement was entered into on the 8 th of May, by which the former contract was annulled, and the 26th of June was fixed for the delivery of the deed and the full consummation of the transaction. The latter agreement contains this stipulation:

“ Said party of the second part [O’Connor] shall have possession of said premises on the 14th day of May, 1894, and in the event of the failure of said parties of the first part to deliver the deed at the time and in the manner hereinafter referred to, the said parties of the first part hereby agree to repay to said party of the second part the said sum of $250, heretofore paid as part of the consideration money, and in addition thereto, such sum, not exceeding $1,250, as said party of the second part shall have paid upon the examination or guarantee of the title to said premises, or in the repair, improvement or furnishing of the building or ground, or the survey thereof, or shall have in any way incurred or expended in the preparation for the purchase of and taking of title to said premises, not exceeding the said sum of $1,250, such payment to be accepted by said party of the second part as liquidated damages for any breach of this agreement by the said parties of the first part, and in event of the failure of said parties of the first part so to deliver said deed at the time herein stated, said party of the second part hereby agrees to surrender .possession of said premises within fifteen days from June 26th, 1894, to James Tyrrell, one of said parties of the first part hereto. And said party of the second part shall not, under any circumstances, be held to be liable for any rental for the occupancy of said premises.”

In pursuance of this agreement, the complainant paid $250 in cash, broke up his home in the city of New York and moved to the premises contracted to be conveyed to him, upon which he made repairs which have cost him nearly $2,000.

On the 26th of June, 1894, he duly tendered the $5,000 he was then to pay, and demanded a deed in accordance with the terms of the agreement, to which tender and demand James Tyrrell replied that, as attorney in fact, he was unable to deliver the deed, and that he desired a statement of the complainant’s expenditures, contemplated by the clause of the contract which has been quoted, in order to ascertain and pay the sum agreed upon as liquidated damages, and also that he desired to fix a day, within the terms of the contract, upon which the complainant would surrender to him possession of the land.

The only question presented in the argument was, whether this court will compel a conveyance to the complainant, notwithstanding the provision for the payment of liquidated damages upon the breach of the contract, the contention in behalf of the defendants being that, by the agreement, the parties have expressly stipulated the measure of the damages which will result from the defendants’ non-performance of the agreement, and therefore equity will leave the complainant to the recovery of those damages, on the ground that an appeal to equity is unnecessary since the legal relief, by agreement, has been rendered adequate.

For the breach of contracts the common law gives a single remedy. It requires the wrongdoer to pay a sum of money as. compensation. When the contract broken is an obligation to-pay money that remedy amounts to specific performance. But there are many contracts for the breach of which such a remedy is inadequate, and that inadequacy has given rise to the jurisdiction of chancery to enforce specific performance of contracts, requiring the performance or omission of the very acts agreed upon. The remedy is thus made identical with the right withheld, and the defendant is thereby deprived of the option, which the legal remedy practically gives him, to disregard the actual-obligation by which he is bound and pay a sum of money in the place thereof. Pom. Spec. Perf. § 3. The inadequacy of the legal remedy, by compensation in damages, is generally regarded as conspicuous in cases of agreements for the sale and purchase of real estate, each parcel of which differs in some resjDects from others. Such property is usually bought because it possesses some feature which attracts by personal gratification and determines the purchaser to make some particular use of it. The present case is not an exception to this usual condition. The description of the property discloses its boundary upon the shore of the Newark bay, with its expanse of water, and the occupancy of it by the complainant indicates that he has determined to make it his residence, and his expenditures upon it give evidence of his appreciation of its situation and surroundings. It is thus made plain that compensation in damages will not be the full measure of relief which a breach of the contract by the defendants, in justice, demands.

This situation primarily leads to a critical examination of the •contract, and the meaning of its clause which I have quoted, to ascertain the correctness of the defendants’ assumption that a stipulated sum has been fixed as damages to be had for the mere non-performance of the contract by the defendants.

That which was contracted for was the purchase and sale of land — a portion of the purchase-money was to be paid at once, and the purchaser was to go into possession pending the execution and delivery of the deed, when the remainder of the purchase-money was to be paid. It was in contemplation that he would proceed to repair, improve and furnish the property. In the event of the defendants’ failure to deliver the deed, he was to surrender the possession of the land to their agent, receive back the purchase-money paid, together with his expenditures, not exceeding $1,250. That repayment and surrender were expressly made dependent upon the failure of the defendants to ■deliver the deed. In this arrangement, which contemplated repayment upon the happening of the one event, failure to deliver the deed, was interpolated the parenthetical clause, that such repayment was to be accepted by the complainant as liquidated ■damages for “ any breach ” of the contract by the defendants. As the repayment was limited to a single event, and made payable upon the happening of that event only, the words “any breach,” in the parenthetical clause, could not have a broader significance than failure to deliver the deed, for the complainant was bound to accept the repayment only in that event.

It is to be noted that upon the defendants’ failure to deliver the deed, the complainant is to have merely pecuniary reimbursement and not compensatory damages. He is to have nothing for his disappointment, trouble and discomfort. The inference from a submission to such inadequate damages is, I think, that a stronger meaning was intended to be given to the word “failure ” than mere arbitrary refusal of the defendants to deliver the deed.

Failure ” is the result of action which predicates earnest •effort, and not mere inaction and refusal to do. It is in this .sense, I think, that the word was used in this contract. It demanded from the defendants a bona fide effort to deliver the •complainant a deed which would vest in him the title to the property. It was failure after such effort that was to constitute the breach for which reimbursement was to be accepted as .satisfaction.

It is obvious that the contract was not an alternative one, to •convey or pay damages. Damages were to be paid upon a ■“ breach ” of the contract, which primarily required an honest effort to perform and failure, and do not become a factor in the consideration of remedies until that precedent condition, is performed.

The professed inability of James Tyrrell to deliver the deed required, does not prove the inability of him and his co-tenants to carry out the contract upon their part.

The case presented, then, is this: A certain sum is agreed •upon as satisfaction to the complainant, if bona fide effort to make him title, fails. So far as it appears by the bill, the defendants can make that title, and the aid of this court is invoked to compel them to do so.

I think that, as the facts now. appear, the. complainant' is •clearly entitled to a decree, and that the case is not .brpught within the controversy referred to in Crane v. Peer, 16 Stew. Eq. 557, or affected by the intimation of Chancellor Halsted in St. Mary’s Church v. Stockton, 4 Halst. Ch. 520, as the-defendants’ proposition suggests.

The motion will be denied, with costs.


source: Caselaw Access Project

author: Van Fleet, V. C.

license: Public Domain

text:
    Patrick Kenny and Mary A., his wife, v. Henry Lembeck et al.
    1. Where a person who desires to buy land at a judicial sale secretly enters-into a fraudulent arrangement with a part of the persons interested in the-land, by which he agrees, if such persons will assist him in acquiring the land, he will pay them a sum of money in addition to his bid, so that they shall, receive more than the others, and his object in making the arrangement is to.defraud all the persons interested in the land, both those with whom the arrangement is made as well as those with whom it is not made, his fraud is-so iniquitous in its character that the court, in undoing his wrong, must administer justice regardless of the consequences to him.
    2. When a witness confesses that he was a willing participant in the fraud in respect to which redress is sought, the safe administration of justice requires-that his evidence shall not be credited unless it is corroborated in one or more-essential points.
    On final hearing on bill and answers and proofs taken orally.

      Mr. Samuel D. Haines and Mr. Charles H. Voorhis, for the-complainants.

      Mr. Charles L. Corbin, for the defendant Lembeck.

      Mr. William S. Stuhr, for the defendants Margaret Burke and-Ellen Kenny.
   Van Fleet, V. C.

The complainants seek by this suit to have a sale of land made-by a master of this court, and the deed made in execution of such' :sale, set aside and declared to be nullities, or that the defendant .Lembeck be required to pay, in addition to the price for which the land was sold to him at public sale, the sum of $1,900. 'The complainants rest their right to relief on the ground of fraud.

The following are the material averments of their bill: In .June, 1892, Margaret Burke and James T., her husband, and Ellen Kenny filed their petition in this court, asking that certain land, devised by the will of John Kenny, deceased, be sold under the statute authorizing the sale of land limited over to infants or in contingency. Margaret Burke was a daughter of John Kenny, deceased, and took under his will an undivided moiety •of the land sought to be sold, in case she and her brother, Patrick Kenny, one of the complainants, were both living when Ellen Kenny, the widow of John, died or remarried. The other petitioner, Ellen Kenny, was the widow of John, -and by his will was entitled to a life estate in the land provided she did not remarry. James T. Burke joined in the petition as the husband of Margaret. Patrick Kenny, one of the complainants, was made a party to the proceeding because, under the will of his father, he took a contingent estate in the land precisely like that •of his sister, Margaret Burke. The court, on the 3d day of October, 1892, and after the questions raised by the petition •above mentioned had been referred to a master and he had reported there.on, ordered the land to be sold, and it was sold at public auction on the 10th day of May, 1893, to the defendant Lembeck for $8,100. This sum was $100 in excess of the value of the land as ascertained by the master. The sale was •confirmed May 31st, 1893, and a deed made in execution of it ■on the 13th day of June following. On obtaining his deed, Mr. Lembeck commenced tearing down the building on the land and erecting new structures.

The preceding averments are not controverted, but the dispute •commences at this point and grows out of an averment charging that Mr. Lembeck, shortly before the petition was filed, secretly •entered into a fraudulent agreement, by which he promised that .if the petitioners would institute proceedings and cause the land to be sold, he would pay the costs and expenses of the proceedings, and at the sale buy the land-at a price as much below $10,~ 000 as he could, and that if he succeeded in acquiring the land for less than $10,000 he would pay the petitioners the difference between the price he paid and $10,000. The complainants-allege that, by means qf this secret arrangement, Mr. Lembeck was enabled to acquire the land for $1,900 less than he would otherwise have been compelled to pay for it.

There can be no doubt, if the arrangement alleged existed when the land was sold, that the effect of it was to change the-position of the petitioners towards Mr. Lembeck from one of conflicting interests to one of identity of interests. In the absence of such an arrangement, it is manifest the petitioners-would, to promote their interests and benefit themselves, have done everything in their power to cause the land to be sold for the highest.price possible; and it is equally clear, if such an arrangement existed, that it necessarily operated as a powerful bribe to induce the petitioners to assist Mr. Lembeck in acquiring the land for the lowest price possible. The less money he-paid the more they would be entitled to receive in ready cash,, and just to the extent that they were benefited, in the execution-of such a scheme, would the persons in whom the money should ultimately vest be defrauded. The complainants had an indisputable right to have the land sold free from any collusive arrangement by which its price might be depressed, and also to have every dollar which should be paid for it, either openly or secretly, invested and held until future events should decide what persons would, if the land had not been sold, have been entitled to it in fee simple absolute. If it has been satisfactorily proved that Mr. Lembeck acquired the land, by means of the-fraudulent contrivance alleged, no doubt, I think, can be entertained that a wrong has been committed against the complainants which it is the duty of this court to redress. If the fact is-that Mr. Lembeck acquired the laud by means of the fraud alleged, then it is undeniable that he, with the assistance of the-petitioners, has used the machinery of this court to defraud the-complainants. Instead of being used, as it was intended to be,, for the protection of the complainants, the process of this court has been prostituted and made the instrument by which they have been deprived of their rights. Against a wrong committed by such means this court must, not only that wrong may be undone and the right vindicated, but also to preserve its own honor and dignity, give the most complete redress within its power. If Mr. Lembeck either concocted or adopted this scheme for the purpose of obtaining the land for a less price than he would otherwise have been compelled to pay for it, secretly intending to use it as a means not only of defrauding the complainants, but also to cheat the petitioners, by making promises to them which he did not mean to perform, then it is obvious that his fraud is so outrageous and iniquitous in its character as to place him in a position where a fearless and effectual administration of justice requires that the court shall, in undoing his wrong, give redress without regard to the consequences to him. In such a case, nothing short of a thorough undoing of the wrong, regardless of the consequences to the wrongdoer, would adequately redress the injured person and at the same time vindicate the majesty of the law.

It is thus made plain that the question on which the complainants’ right to relief depends is, Has the fraudulent agreement alleged been satisfactorily proved ? Or, stated in another form, Has that agreement been so clearly established by proof that it may safely be made the basis of judicial redress? The bill alleges, it will be remembered, that this agreement was made a short time before the petition, asking that the land be sold, was filed, and that the parties to it were Mr. Lembeck on the one side and Margaret Burke and James T., her husband, and Ellen Kenny on the other, and that its principal provisions were that Lembeck should pay the costs of the proceeding, buy the land at the sale as low as he could, and if he succeeded in buying it for less than $10,000 pay the difference between his bid and $10,000 to all three of the petitioners. No attempt has been made to prove that an agreement of the kind alleged was made with all three of the petitioners, nor with anybody at the time alleged. If such an agreement was ever made, it was made with James T. Burke alone, and without the knowledge of the other two petitioners; and if such an agreement was made with him, it was not made until long after, the petition had been filed, nor until the questions raised by the petition were under investigation.

The only witness by whom the complainants attempted to prove the agreement was James T. Burke. He testified that, in August, 1892, while the master was taking testimony respecting the questions raised by the petition, he became dissatisfied because the hearings were adjourned from time to time to suit the convenience of counsel; he feared that the land would, in consequence of the dilatory course of the proceeding, be wholly consumed in the payment of costs, and, under the influence of this fear, he ordered his counsel to stop the proceeding and “ take it out of court.” A short time after he gave this order, he says he had an interview with Mr. Lembeck. In describing what was said in this interview, he testified as follows:

“ Lembeck told me I was a fool to take it out of court; he says there aint a man in the country that will give §10,000 for that property only myself; Kenny [meaning- Patrick Kenny, one of the complainants] will never give §10,000 for it, and if it is sold for anything less, I am to give you personally the balance; so I left it in court; I said, ‘ Let it go, I’ll take the chances ; ’ Lembeck then said, 1 If Kenny bids §9,000, there will be §1,000 coming to you; if he bids §9,500, there will be §500 coming to you; if he bids §10,000, there is nothing ; ’ I said, ‘All right, let it go then.’ ”

Mr. Burke further testified that either on the day that Mr. Lembeck received his deed or the day after, he called on him at his office, and said to him, “ Now, it is my time next — time to settle up with me now;” that Mr. Lembeck asked, “Settle up what?” and he answered, “Of the balance;” and that Mr. Lembeck then said, “Why, I don’t owe you nothing; I used you for all you are worth, and I got out of you all I could; I have got my deeds in one pocket and my money in another, and you can go to h-.” He further testified that he then said to Mr. Lembeck that if he did not settle with him he would have to deal with the chancellor of the State of New Jersey, and that thereupon he left Mr. Lembeck’s office.

The evidence of this witness constitutes the sole foundation of the complainants’ case. It has no other support. If his evidence is not true, the complainants have no right to relief. This witness, by his own confession, has cast distrust upon his whole evidence and made it difficult to believe anything he says. He admits that he entered into a scheme to defraud his wife, her brother and his mother-in-law. As described by himself, he appears to be thoroughly corrupt. The safe administration of justice requires that the evidence of such a witness should not be believed unless corroborated in one or more essential points. His evidence is wholly uncorroborated, except that there was a time when Mr. Lembeck was willing to pay $10,000 for the land. On the 20th day of January, 1892, more than sixteen months before the sale, Mr. Lembeck wrote a letter to the solicitor of Margaret Burke and Ellen Kenny, in which he stated that he had made an arrangement with Mr. Burke to purchase the land for $10,000, but added : “ This offer is made for the purpose of having the property turned over to us this spring, and I should think you can get it through in a month.” When this letter was written, Mr. Lembeck wanted the land to erect a building thereon, in order to avoid the necessity of making changes in a building on an adjacent lot, and it was then supposed that a title to the land might be speedily acquired by means of a suit in partition, and a bill for that purpose was subsequently filed, but it was afterwards dismissed, because, on examination, it was found that the state of the title was such that the land could not be partitioned, either actually or by means of a sale. The proceeding under which the land was sold was not commenced until June, 1892, and the order for sale was not made until October of the same year. In the meantime, Mr. Lembeck had, at a considerable outlay, altered the building on the adjacent lot, so that the considerations which made the land desirable to him in the spring of 1892 did not exist in August, 1892, when Burke says the fraudulent agreement was made. In view of these facts, it is quite obvious that the fact that Mr. Lembeck was willing to pay $10,000 for the land in the spring of 1892, when he specially needed it, does not serve to corroborate, in the slightest degree, the truth of Burke’s evidence. His evidence stands not only wholly unsupported, but contradicted by both Mr. Lembeck and himself. Lembeck swears that no such agreement or arrangement as that testified to by Burke was ever made. In an affidavit made on the 28th day of October, 1893, and annexed to the bill in this case, Burke, in stating the terms of the fraudulent bargain, swore that Mr. Lembeck said “Nobody but me will give $10,000 for that property; you let the case go on to sale, and all I can bid it in for below $10,000, I will pay you, your wife and your mother-in-law.” And in giving the terms of the same bargain, as a witness on the final hearing, it will be remembered that he swore that Lembeck promised to pay him personally, and not to him, his wife and his mother-in-law, the difference between $10,000 and the amount of his bid. He then swore that Lembeck’s promise was expressed in these words: “Kenny will never give $10,000 for the land, and if it is sold for anything less, I am to give you personally the balance.” Not only because the evidence of this witness is wholly uncorroborated, and he stands self-contradicted, but because of the highly-improbable character of his story, I think his evidence must be treated as entirely unworthy of credit.

The complainants’ bill must be dismissed, with costs.


author: Bird, V. C.

text:
    Obadiah S. Boyden et al. v. David Bragaw.
    It is not within the recognized powers of a court of equity to grant its mandate requiring the trespasser to remove a monument which he has erected upon a grave-plot without the permission of the owner, the remedy at law being adequate for such trespass.
    On final hearing.

      Mr. John J. Joyce and Mr. William B. Guild, for the complainants.

      Messrs. Coult & Hoioell, for the defendant.
   Bird, V. C.

This bill is filed to obtain a mandatory injunction requiring the defendant to remove a tombstone which he erected upon a. plot of ground belonging to the complainant in a cemetery. The defendant’s wife, who was sister to the complainant, having died, the complainant, after considerable delay and hesitation, consented that the defendant might bury her in said plot. After she was so buried, upon application by the defendant, the complainant consented that he might place gravestones to mark the location of the grave. Instead of placing the ordinary slab or stone to mark the grave, the defendant erected a monument as near the head of the grave as he reasonably could. To do this in a proper manner, it was necessary to lay a substantial stone foundation. The monument placed upon this was at the base two feet and eleven inches square.

Supposing the action of the defendant to have been illegal, the first question that presents itself is whether or not the complainant is entitled to the aid of this court. His counsel, in his brief, undertakes to answer this inquiry by insisting that this court will interfere in cases where the trespass is a continuing one, and also where a multiplicity of suits will be prevented. It is admitted that the act complained of is simply a trespass. According to Blackstone, the owner of the fee in such case may bring an action of trespass against any who dig and disturb the soil. 2 Bl. Com. 429; Meagher v. Driscoll, 99 Mass. 281; Smith v. Thompson, 55 Md. 5; 1 Add. Torts § 457. It being a trespass, can it be said to be of a more serious nature than any ordinary invasion of the rights of property by force, to redress which requires more than a single action at law? In other words, can it be said that the remedy at law is inadequate ?

Courts of equity interfere to prevent the commission of waste or trespass, when the injury is threatened by an insolvent person. Wilson v. Hill, 1 Dick. Ch. Rep. 367, and cases cited; West v. Walker, 2 Gr. Ch. 279; 1 High Inj. 671, 674; Worthington v. Moon, 8 Dick. Ch. Rep. 46.

Or where it will work irreparable damage to the inheritance. Hart v. Leonard, 15 Stew. Eq. 416; Cornelius v. Post, 1 Stock. 199; De Veney v. Gallagher, 5 C. E. Gr. 33; Scudder v. Trenton Delaware Falls Co., Sax. 694; Southmayd v. McLaughlin, 9 C. E. Gr. 181; High Inj. § 673; Fulton v. Greacen, 9 Stew. Eq. 216; Kerr Inj. 289.

But in this case the mischief has been accomplished. Being done, it is no more a continuing trespass than any other of a like nature, such, for example, as cattle continuing to pasture upon land not belonging to the owner of the cattle, or stones or timber nr any other like personal property placed upon land not belonging to the owner of them and allowed to remain there without permission. In every such case the only question which the law recognizes as a guide is, what damage has the injured party sustained by the illegal act? In other words, how much will it require to restore him to his original rights or condition? Duke of Newcastle v. Broxtowe, 4 Barn. & Ad. 282. In this case, which was in trespass, the plaintiff was allowed that which it was computed it would cost him to reconstruct buildings which had been forcibly destroyed.

In the case before me, the inquiry in a suit at law plainly would be, what would it cost the plaintiff to remove the monument and to restore the plot to the condition in which the defendant found it when he first invaded the premises ? This could be as readily ascertained as in any of the numerous acts of trespass with which jurors under our system of jurisprudence are constantly dealing.

Therefore it seems to be my plain duty to advise that the bill be dismissed, with costs.


text:
    Charles H. Cook v. The East Trenton Pottery Company.
    1. Although it appears by the first part of the seventieth section of the act respecting corporations that either the insolvency of a corporation or its suspension of business for want of funds to carry on the same supported by proper proof, is ground for the court to institute an inquiry preliminary to the issuing of an injunction and the appointment of a receiver, nevertheless by the subsequent provisions of the same section the insolvency and the resumption of business are so collectively presented that it must appear to the satisfaction of the court that the corporation is not only insolvent but that it is not about to-resume its business with safety to the public and advantage to the stockholders before it can issue an injunction or appoint a receiver.
    2. The suspension of business by a corporation, even though it does not appear that it is about to resume in a short time, when it is not clearly established that the corporation is insolvent, does not afford sufficient warrant for the court to assume jurisdiction, insolvency being regarded as an absolutely essential ingredient or fact both in pleading and proof.
    Bill for injunction and receiver.

      Mr. Linton Satterthwait, for the complainant.

      Mr. William 8. Gummere, for the defendant.
   Bird, V. C.

Mr. Cook, the complainant, is a large stockholder in the defendant company. He is also a creditor, it being admitted that his claim of $20,220.28 is justly due. This amount has been advanced by him for the purpose of enabling the company to carry on its business. He has advanced portions of this money in the face of losses from time to time, amounting to several thousand dollars. He alleges that the company is insolvent, and insists that he is entitled to the benefit of the seventieth section of the statute respecting corporations.

This section declares that “when an incorporated company shall have become insolvent, or shall have suspended its ordinary business for the want of funds to carry on the same,” then any creditor or stockholder may apply to the court &c., and if, upon inquiry, “ it shall be made to appear to the chancellor that the said company has become insolvent, and shall not be about to resume its business in a short time thereafter with safety to the public and advantage to the stockholders, it shall and may be lawful for the chancellor to issue an injunction ” &c.

That portion of the section first above quoted presents two conditions, either of which it would seem was intended to justify the court in taking such cognizance of the case as will enable it to discover the true situation of the corporation. The first of these conditions is the insolvency of the corporation; the second is suspension of its ordinary affairs for want of funds to carry on the same. But the section referred to must be considered as a whole. Not only must the clauses which direct the inquiry be kept in mind, but also the clauses which direct what decree shall be made, and upon what foundation such decree shall rest.

It will be seen, by the subsequent provision of the statute above quoted, that it must upon such inquiry appear to the satisfaction of the court that the corporation is not only insolvent but that it is not about to resume its business in a short time with safety to the public and advantage to the stockholders. These phrases certainly are not in the disjunctive, as the former ones are. Whatever force the former may be entitled to in originating proceedings, the latter only are the warrant for a decree for an injunction and a receiver.

Therefore it must be concluded that the phrases, or parts of the section last above quoted, must be considered collectively. Although it is undisputed that the company has suspended its ordinary business and there is no proof that it is about to resume, that fact cannot control independently of the requirement that it must appear that the company is insolvent. A corporation may suspend business for the want of funds to carry on the same and yet may be solvent. In case of suspension and an inquiry is begun, during which it appears that the company is not insolvent, the court cannot proceed even though all parties should admit that the company does not intend to resume business. The facts which give jurisdiction must be comprehended both in the pleadings and the proofs.-

Hence the inevitable conclusion is that insolvency is an absolutely essential ingredient or fact in every case in which the court is asked to enjoin a corporation and to appoint a receiver to take charge of its assets. Atlantic Trust Co. v. Consolidated Electric Storage Co., 4 Dick. Ch. Rep. 402; Edison et al. v. Edison United Phonograph Co., 7 Dick. Ch. Rep. 620.

The suspension of this company for so long a period of time being admitted, in the absence of any definite proof that it is about to resume, it only remains for me to consider whether this company is insolvent. Taking the allegations and the affidavit of the complainant' at their very best, it may fairly be inferred that the court was justified in issuing an order to show cause upon the ground of insolvency alone. But notwithstanding the company is liable for moneys advanced to it by the complainant, for the purpose of carrying on its ordinary business to the extent of $20,220.28, which is unsecured, the testimony presented in the affidavits of the defendant company shows an excess of assets over all liabilities of at least $20,000. Is this excess of such an amount as to make it reasonably safe for the court to rely upon it in pronouncing judgment in favor of the defendant? Eor there may, as there doubtless often have been, instances in which larger margins than this have not been regarded as entirely sufficient to relieve the court from the obligations imposed upon it by the statute. All experience establishes the fact that such assets greatly depreciate when their value comes to be ascertained at the block of the auctioneer. For example, if the indebtedness of a corporation were $500,000, and its assets were estimated at $550,000, and it should appear that the company had suspended business, upon the allegation of insolvency, I think the court would ordinarily be justified in declaring such corporation insolvent. But in the case before me the whole amount of indebtedness, as shown by the bill, is $40,220.28. And by the affidavit of the complainant thereto annexed the value of the assets is shown to be $36,500, while by the answer and the affidavits thereto annexed these assets are shown to be worth from $65,000 to $70,000, so that the excess of assets, instead of being only one-tenth of the whole amount of liabilities, as in the case supposed, is about one-third. Many presumptions arise from universal experience which courts find themselves justified in acting upon, but these always give way to positive testimony establishing different results or conditions. In this case it appears from the testimony of very intelligent witnesses, who may be classed as experts, that the value of the assets of the defendant company is what has been stated. With such facts sustained by such an array of witnesses for the court to base its judgment upon, I do not think the most interested to the contrary would undertake to justify the court in turning this plant over to a receiver upon the ground of insolvency.

I will advise that the order to show cause be discharged and the bill dismissed, with costs.


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    Alfred B. Richman v. John Donnell et al.
    New matter by way of defence, which requires the introduction of new parties, cannot be set up by way of cross-bill.
    On motion to dismiss cross-bill.

      Mr. Austin JET. Swackhamer, for the motion.

      Mr. John 8. Jessup, eontra.

   Bird, V. C.

The complainant files his bill to foreclose a chattel mortgage and to restrain the defendant Donnell from selling the goods named in the chattel mortgage, by virtue of an execution issued upon a judgment in his favor. The chattel mortgage was given by one Kate Rose Dougherty to secure the payment of the sum of $2,500. The judgment of the defendant Donnell was for $57.33 against Thomas Dougherty and E. Samuel Dougherty,, engaged in business under the name of the Malaga Carpet Com-' pany. Thomas is the husband of Kate Rose Dougherty, the.mortgagor.

Donnell and the constable answer, and also answer by way of’ cross-bill. The substance of the cross-bill is that Kate RoseDougherty, the mortgagor, became possessed of the title to the-property by a fraudulent arrangement between herself and the said Thomas and the said E. Samuel Dougherty, for the purpose ■ of defrauding the said Donnell of his claim against them. The • complainant moves to have the cross-bill dismissed, because it seeks to introduce into the litigation a matter foreign to the subject-matter presented by the bill of complaint, and also because ■ it seeks to introduce new parties to the controversy. In my judgment it would be entirely untenable to say that a defendant could not set up, by way of cross-bill, the fact that the complainant procured his alleged lien or title by fraud, or by the fraud, or connivance of others with his knowledge or for his benefit.

I think the legal proposition to' be discussed in this case is-not whether a defendant cannot obtain relief by means of across-bill, but whether he can do so when it appears, by the allegations of the cross-bill, that, in order to establish the fraud,, persons who participated in the alleged fraud have not been-made parties to the original bill, and consequently must either be made parties to the cross-bill as defendants or the case proceed without their presence in court and without their having an opportunity to be heard. This is a combination of the two propositions presented in the notice of the motion to dismiss. After what I have above said, with respect to the right of a defendant to charge a complainant with fraud and so to defeat his claim to title to property in issue, it will be seen that, as this case stands, the real question to be settled is, can the issue be properly litigated without Thomas and E. Samuel Dougherty, the judgment debtors of the defendant Donnell, and the alleged fraudulent grantors, being present as parties? Since that is the very point or gravamen of the issue — in other words, if the contention of the defendant should prevail, the judgment must be against them — it would seem that all reason and precedent require that they shall be made parties. The charge is directly that, for the purpose of defrauding the defendant, they transferred the title to these goods to Kate Rose Dougherty, and that ■the complainant had knowledge of the transaction and the purpose which moved them thereto.

In King v. Martin, 2 Ves. Jr. 641, a judgment creditor showed that his debtor had procured insolvency proceedings to be instituted for the purpose of defrauding him of his judgment and made the bankrupt a party. The bankrupt demurred to the bill, upon the ground that he was not a necessary party. The demurrer was overruled.

In Gaylords v. Kelshaw et al., 68 U. S. (1 Wall.) 81, it was held that, in a bill- to set aside a conveyance as made without consideration and in fraud of creditors, the alleged grantor is a necessary defendant.

To the same effect is Sewall v. Russell, 2 Paige 175, 176. In the case of Lawrence v. Bank of the Republic, 35 N. Y. 320, 324, the court said: “In the creditor’s suit against a judgment .debtor to set aside a prior assignment made by him in trust for the benefit of creditors, on the ground of fraud, he is a necessary party.” See, also, Van Doren v. Robinson, 1 C. E. Gr. 256.

Besides, in the very many cases which appear in the books of reports instituted by creditors seeking z’elief against fraudulent transfers of their debtors’ property, I think not one can be found .in which the debtor has not been made a party. It would seem ;as though this must be so from the fact that the very object of , the bill in this case is to obtain a decree of the court declaring : the transfer made by them fraudulent and void. How can it ; affect them unless they be made parties ?

The question still remains, can this cross-bill be so amended by introducing Thomas and E. Samuel Dougherty as parties defendant thereto, and the question involved be litigated in the present proceeding? This must be answered in the negative. If the complainant has failed to make all the persons interested parties, the defendant has his remedy by proper pleading — that is, by demurrer or notice of motion to strike out for want of proper parties. If the interests of the defendant be such that it is necessary for him to raise issues not within the scope of the •complainant’s bill, but which are essential to the establishment of his rights, and to that end new parties must necessarily be brought into the litigation, he can raise such issues by filing an original bill. Shields et al. v. Barrow, 17 How. (U. S.) 129, 144, 145.

The motion to strike out the cross-bill should prevail, with •costs. I will so advise.


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    David Allen et al. v. Charles J. Fury et al.
    1. A cross-bill being a means of defence, the allegations therein must relate to or be so immediately connected with the matter set up in and the issues made by the original bill, as necessarily to be involved in the decree pronounced under the original bill.
    2. Matters which may be the foundation of a suit by a defendant, but which are wholly independent of the claims made against him by the complainant, can only be litigated by an original bill and not by cross-bill.
    On motion to strike out cross-bill.

      Mr. Charles E. Hendrichson, for the motion.

      Mr. James Buchanan, contra.

   Bird, V. C.

The original bill in this case was filed for the purpose of obtaining a decree declaring that certain stock which was issued by the defendant the Ironsides Pottery Company was unlawfully issued, and that the certificates thereof might be declared void and ordered to be canceled.

The defendants answer, and answer by way of cross-bill. In their cross-bill they set up that, because of the depression in trade and the uncertainty of business in the future, the company decided that certain goods which were in process of manufacture should be completed, and that then all operations of the plant should cease, but that notwithstanding such decision upon the part of the company, the complainants directed the operations-of the concern to be continued to its detriment, and pray that they may be enjoined from any further interference.

Notice of motion to strike out the answer by way of cross-bill’ having been given, the questions arising thereunder are now to-be considered. The third and fourth reasons, which are to the effect that the matters introduced in the answer by way of cross-bill are entirely separate and distinct from the matter set up in the original bill, and can in no way aid the defendants in their resistance to the original bill, will only be considered.

That these objections to the cross-bill are well taken appears-from the very threshold of the investigation. At the opening-of every text-book upon the subject, or reported case, it is made-clear that a cross-bill must be confined to the subject-matter of the original bill, or in some way connected with it so as to make it a proper subject of defence thereto. In Kirkpatrick v. Corning, 12 Stew. Eq. 136, it was said: “A cross-bill is considered as a mode of defence, and must be confined to the subject of the litigation in the original suit-, and cannot be the means of instituting a distinct suit in relation to other matters, and cannot become the foundation of a decree as to such matters.” S. C., 13 Stew. Eq. 343; Sebring v. Conkling, 5 Stew. Eq. 24; Kruger v. Ferry, 14 Stew. Eq. 432; Carpenter v. Gray, 10 Stew. Eq. 389; 2 Dan. Ch. Pr. & Pl. 1548; Wright v. Miller, 1 Sandf. 123; Crosse v. De Valle, 1 Wall. 14.

In Galatin v. Erwin, Hopk. 48, it is said: “A cross-bill is a defence, and being so considered is confined to the matters-in litigation in the original suit. Without this Restriction new matters might be introduced into a litigation by cross-bill without end.” S. C., 8 Cow. 361. See, also, 83 Am. Dec. 251.


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    James Frenche et al. v. Seneca B. Kitchen et al.
    A judgment creditor who delays twenty years after obtaining his judgment :and after knowledge of the alleged fraud, filing his bill to set aside a conveyance made by the debtor to his wife, on the ground of fraud, is guilty of laches.

      Mr. Charles M. Woodruff, for t.he complainants.

      Mr. George M. Shipman, for the defendants.
   Bird, V. C.

The bill of complaint in this cause is filed in order to have a judgment at law declared to be a lien upon lands conveyed to the wife of the defendant Seneca B. Kitchen prior to the rendition of such judgment. The judgment is for $371.93 of principal and $32.52 of costs. It was obtained July 17th, 1872. The action for the recovery of this judgment was instituted ■October 18th, 1871. The deed of conveyance by which the title was passed to the wife Jane, was dated April 4th, 1872, and recorded the 9th of the same month. The bill in this case was ■filed April 29th, 1892, more than twenty years after the deed ■referred to was recorded.

It is alleged in the bill that the conveyance to Mrs. Kitchen was without consideration and void as to creditors.

There are two defences set up by Mrs. Kitchen — one that, although the title to the property in question was originally taken in the name of her husband, she paid the consideration therefor with her own money, and purchased and paid for all of the materials that entered into the construction of the improvements thereon; the other, that if the complainants ever had any rights as against her, they have lost or forfeited them by their laches.

While there is no little uncertainty as to the exact amount of money which Mrs. Kitchen contributed towards the purchase-money for the lot in question, and towards the purchase of the-materials used in the construction of the dwelling-house thereon, it cannot be doubted but that she did, out of moneys earned by her own labor and moneys received as portions of her father’s. estate, make large advances therefor. It is also equally clear that she has had the possession and control of the said premises-ever since the erection of the dwelling-house thereon and has-paid the taxes thereon.

The uncertainty as to the amount of money which Mrs.. Kitchen contributed, arises from the lapse of time since she-made such contribution. She was married in 1848, and at that time had saved of her own earnings about $300. This propert-y was purchased, in 1857, for $518. - At that time her father advanced to her $500, which, with her own, she paid the consideration for the title. Her husband transacted all the business, and it was understood that the title was to be taken in her name,, but it was taken in his name. She also was entitled to other moneys from her father’s estate. When she understood that the-title was in her husband, she procured it to be transferred to-herself. This lapse of time has given rise to the principal doctrine of laches as enunciated and supported in many decisions,, especially when it results in such change of circumstances as to-be prejudicial to the real interests of the defendant. When such is the case, courts of equity always justify defendants in invoking its aid. In this case the complainants knew of the transfer of this title from an actual inspection of the record, within a year after the entry of their judgment. Since then two important witnesses, as to the amount of money which Mrs. Kitchen actually received from her father’s estate, have died. It is very evident also from her appearance upon the witness-stand, as well as from her statements, the transactions of twenty-five and thirty years ago have very greatly faded upon her memory or entirely disappeared. And this is more especially true as to her husband.

In Brown v. Mutual Insurance Co., 5 Stew. Eq. 814, Mr. Justice Scudder, in speaking of this principle, said: “These-defendants have delayed making their defence until Israel H. Morehouse and Anthonv Meeker, the principal witnesses, are dead, and the complainants are at a great disadvantage. This is; a proper case to enforce the rule that, in suits to rescind contracts for fraud, it is the duty of the complainants to put forward their complaint at the earliest possible period.” This principle, universally recognized, is illustrated in a great variety of cases. Wilkinson v. Sherman, 18 Stew. Eq. 414; Van Houten v. Van Winkle, 1 Dick. Ch. Rep. 384; Lynch’s Administrators v. Vanneman, 18 Atl. Rep. 468; S. C. affirmed in court of errors and appeals, at the June Term, 1894; Doughty v. Doughty, 2 Stock. 351; Hance v. Conover, 4 Stew. Eq. 505; McCartin v. Traphagen, 16 Stew. Eq. 324; Bump Fraud. Conv. 533; Harwood v. Railroad Co., 84 U. S. 81; The Key City, 81 U. S. 653; Richards v. MacKall, 124 U. S. 183.

Counsel- for the complainants insisted that, so long as the vitality of the mortgage was preserved, the complainants could institute any proceedings whatever for its enforcement, against any right or interest of the defendants therein. This proposition no one will dispute, but the question is not solely between the complainants and the defendant in the judgment at law. A third party has been introduced, who cannot be affected at all directly by the judgment at law. She now claims rights or-interests which stand in the way of the execution of the complainants, issued upon their judgment at law. They find it necessary to bring this suit in equity in order to brush away her claim of right or interest. Hence, the inquiry is whether, as to her, it is fair and eonscionable for the court, after the lapse of-, twenty years, to entertain this proceeding. Not only is the defendant in the judgment at law charged with fraud, but his • wife, who was in no way connected, is also charged with com- - plicity in the fraud. There is not only nothing set up in the - bill of complaint showing why there has been so much delay in/ commencing this suit, but not the slightest effort was made in offering the testimony to satisfy the court that the complainants had used reasonable diligence. Had the complainants acted with that promptitude which I think is required by the spirit, of the cases above cited, Mrs. Kitchen would have been able,, beyond any reasonable doubt, to have established with very rgreafc certainty the amount of money advanced by her, as well for the purchase of the title to thé land in question as for the improvements put thereupon j and if, as nów she insists, she did mot make all such payments, what she did really make would .'have been preserved to her by way of lien, according to the well-settled practice of this court. Roe v. Moore, 8 Stew. Eq. 526, 529; Demarest v. Terhune, 3 C. E. Gr. 532; Levi v. Welsh, 18 Stew. Eq. 867.

It is no part of the duty of a court of equity to encourage parties in any fraudulent attempts against creditors, but claims of the character of those presented by Mrs. Kitchen will not be disregarded unless the testimony clearly establishes the charge ■that they were used for an unlawful purpose.

The fact that the conveyance to Mrs. Kitchen was made pending the suit is a badge of fraud, and is properly urged upon ¡the consideration of the court in that light. Kitchen himself, when he was about to borrow the money, said that he owned the premises in question. This cannot be charged as evidence of fraud against Mrs. Kitchen unless it is also made to appear that •she consented that her husband should hold the title in order that he might acquire a greater credit thereby. There is nothing in the case to show that Mrs. Kitchen did anything more than to take steps to secure the title to this property iu her own .name.

I will advise that the complainants’ bill be dismissed, with costs.


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    Obadiah C. Bogardus v. Margaret J. Gordon et al.
    In case, after a general act upon the subject of usury, an act is passed imposing a different penalty for a single county, and still later the general act is amended, in which no reference whatever is made to the special or local act, the latter being radically inconsistent with the special or local act and by negative terms covering the whole of the subject-matter, operates as a repeal of such special or local act.

      On motion under Rule 213.

      Mr. William il. Vredenburgh, for the complainant.

      Mr. William JHyres, for the defendants.
   Bird, V. C.

This bill was filed for the foreclosure of a mortgage.. The •contracting parties reside in the county of Monmouth, and the lauds embraced in the mortgage lie in that county. The mortgagor answers and claims the benefit of the act of the legislature approved March 10th, 1875, which is-in these words:

“ That all contracts for the loan of money, wares, merchandise, goods or chattels hereafter made in the county of Monmouth, in this state, whereby above the value of seven dollars for the forbearance of one hundred dollars for a year or above that rate for a greater or less sum, or for a longer or shorter period, shall be taken directly or indirectly, shall be utterly void. That all acts and parts of acts inconsistent with this act be and the same are hereby repealed.”

The complainant moves to strike out of the answer so much •of it as claims any protection or relief under the act just quoted. In support of his motion, he insists that the provisions of the ..act approved March 27th, 1874, as amended by the act approved February 26th, 1878, operate as a repeal of the act of March 10th, 1875.

The act of March 27th, 1874, is in these words:

, “That no person or corporation shall, upon any contract, take, directly or indirectly, for loan of any money, wares, merchandise, goods or chattels, above the value of seven dollars for the forbearance of one hundred dollars for a year, and after that rate for a greater or less sum, or for a greater or shorter time.”

The second section makes this provision :

“ That in all cases of suits, either at law or in equity, to enforce any note &c. on which a higher rate of interest shall be reserved or taken than was or is allowed by the law of the place where the contract was made or is to be performed, the amount or value actually lent, without interest or costs of suit, may be recovered, and no more; and if any premium or illegal interest shall have been paid to the lender, the sum or sums so paid shall be deducted from the amount that may be due as aforesaid, and recovery had for the balance -only.”

The act which was approved February 26th, 1878, is in these words:

That the first section of the act to which this is a supplement, and which reads as follows [which is the first provision copied above], be and the saméis hereby amended so as to read as follows: ‘ that no person or corporation shall upon contract, take, directly or indirectly, for loan of any money, wares,, merchandise, goods or chattels, above the value of six dollars for the forbearance of one hundred dollars for a year, and after that rale for a greater or less, sum, or for longer or shorter time.’

The next section declares:

“ That so much of the first section of the act to which this is a supplement,, as is inconsistent with this supplement, be and the same is hereby repealed.”

In the last act no reference is made to the act of March 10th,. 1875.

It will be perceived that the act of March 10th, 1875, declares-that every such contract shall be void. This act is what is-called local,” or special in its nature, being applicable only to-a single county. The act of February 26lh, 1878, is general,, as distinguished from special. The claim that the act of 1878-works a repeal of the act of 1875 is resisted upon the familiar-principle that general laws do not, by implication, abrogate special laws.

The general rule is, “ that a general statute, without negative-words, will not.repeal the particular provisions of a former one-unless the two acts are irreconcilably inconsistent.” Sedgw. Stat. & Const. L. 97; Craft v. Jachetti, 18 Vr. 205; State, Morris and Essex Railroad Co. v. Commissioners of Railroad Taxation, 8 Vr. 228; School District v. Whitehead, 2 Beas. 290; Henderson’s Tobacco, 11 Wall. 652; Rogers v. Watrous, 8 Tex. 62; United States v. Tynen, 11 Wall. 92; People v. Gold and Stock Telegraph Co., 98 N. Y. 67; Bowen v. Lease, 5 Hill 221.

Or unless it was clearly intended to prescribe the only rule that should govern in the case, then it will repeal the original act. School District v. Whitehead, supra; Stale, Morris and Essex Railroad Co. v. Commissioners of Taxation, supra; Rogers

v. Watrous, supra; Daviess v. Fairbairn, 3 How. (U. S.) 635, 636; State v. Stoll, 17 Wall. 431; United States v. Tynen, supra; Davis v. State, 7 Md. 151; Towle v. Marrett, 3 Greenl. 22; Edgar v. Greer, 8 Iowa 394; Britton v. Commonwealth, 1 Cush. 302.

Or unless it embraces the whole subject-matter. Dugan v. Gittings, 3 Gill 138; Bartlett v. King, 12 Mass. 536; Heckmann v. Pinkney, 81 N. Y. 211; United States v. Cloflin, 7 Otto 546; Bowen v. Lease, supra; Britton v. Commonwealth, supra.

The act of 1876 is without the slightest qualification, and therefore general. It cannot be questioned but that it embraces-every county in the state as fully as the act of 1874. The act of 1875, by its express provisions, excepts the county of Monmouth from the operation of the act of 1874, and increased the-penalty to the forfeiture of the entire sum loaned.

The undisputed facts just adverted to show that the act of 1878 cannot be reconciled with the act of 1875. There are no-exceptions in the former. This unqualified language of the lawmaking power proves conclusively that it intended to prescribe-the only rule that should govern. Nor does it require any argument to make it manifest that the later act embraces the whole-subject-matter as well as all the territory within the borders of the state.

The case more like this than any other is that of People v. Jaehne, 103 N. Y. 182. In this ease an act, which was called the Consolidation act-, prescribed certain penalties for crimes for the city of New York. The penal code prescribed other and greater penalties for the same crimes. The Consolidation act was approved subsequent to the penal code, but there was a provision that, notwithstanding the latter was prior in point of time, it should take effect at a given date after the enactment of the Consolidation act. There was no provision in the penal code expressly repealing the Consolidation act. Jaehne was indicted in the city of New York, for bribery. There were two-counts in the indictment, one charging him under the Consolidation act and the other under the code. Upon motion requiring the prosecuting attorney to elect under which count he would proceed, lie' elected to proceed upon tlie indictment under the •code. The question then was, which of the two acts was in force in the city of New York? In other words, whether the ■enactment of the code abrogated the Consolidation act with respect to the penalties imposed?

The court said: “We are therefore brought directly to the main question, whether section 58 of the Consolidation act is in force, and takes the case of bribery, when committed by a member of the common council of the city of New York, out •of the operation of section 72 of the penal code, thereby requiring' a different procedure and a different punishment in the special case from that prescribed by the general law governing .the same offence when committed by a member of the common •council in other cities of the state. * * * The penal code contains no general clause repealing prior statutes covering the subject embraced in its provisions. It, however, defines and prescribes the punishment for murder, larceny, burglary and all the generally-recognized offences, and it cannot be doubted that its provisions on these subjects were intended for a substitute for similar provisions in the prior laws. * * * The learned •counsel for the defendant insist that the two acts are not necessarily repugnant, and they invoke the application to this case of ■the general rule in respect to the repeal of statutes by implication, that a posterior general act does not repeal a prior local act •unless the legislative intent to repeal be unequivocally apparent. Whether the subsequent statute repeals the prior one, in the ■absence of express words, depends upon the intention of the legislature; and one of the tests frequently resorted to, to ascertain whether there is a repeal by implication, is to inquire whether the special and general acts may both be executed without involving repugnancy of rights or remedies. In some cases the question has been solved by lidding that the general act was intended to declare a general rule covering cases not already provided for, and that a prior special statute on the same subject operating upon a single person or class of persons, or within a limited territory, should be treated as if specially excepted from the operation of the general law. It will be found, I think, on examining the eases in which the courts have held that a special law was not repealed by a subsequent general law on the same subject, that they are, as a general rule, cases where the legislature was not dealing directly with the subject of the prior law, and it was not in the mind of the legislature, when the general law was enacted, or where a special law was part of a system-of local administration, but where it was possible to assign a reasonable motive for retaining the special and peculiar provisions of the special act, notwithstanding the enactment of a subsequent general rule covering the same subject. The General Bribery act not only covers the whole subject, but was, we think, plainly intended to furnish the only rule covering the crime and punishment of bribery.” After saying that no public policy requires any discrimination between the punishment for bribery in different localities, the court declares : “A later statute,: covering the same subject-matter and embracing new provisions,, operates to repeal the prior act, although the two acts are not, in express terms, repugnant. See Morris v. Croker, 13 How. 429; Bartlett v. King, 12 Mass. 545; United States v. Tynen, 11 Wall. 88; Heckmann v. Pinkney, 31 N. Y. 215; People v. Gold and Stock Telegraph Co., 98 N. Y. 78.”

In commenting upon legislation which imposes different penalties in different districts for the same offence, the court said :• “Such legislation is absurd in theory and leads to injustice. It regulates punishment according to the locality of the crime, instead of by the nature of the offence. It is repugnant to the principle that laws should be equal and impartial, and ignores a natural sentiment which requires even-handed justice, even in the punishment of crimes. * * * It is the duty of courts, in construing statutes, to avoid, if possible, a construction which leads to absurdity or manifest injustice. * * * The fact that, prior to the penal code, the same inconsistency existed between the punishment for bribery under the charter-provisions and the General Bribery statute, does not, we think, make it less the duty of the court to seek to place such a construction upon a penal code as will remedy such an anomalous and unsatisfactory condition of the law.”

The result of my investigation is that the negative words, '“that no person or corporation shall upon contract take, directly or indirectly, for loan of any money” &c., in the act of 1878, include the county of Monmouth, as well as every other county in the ■ state, and necessarily repeal the act of 1875. This being so, the bonus which it is alleged was paid for the loan, if established, must be accounted for under the act of 1878.

The motion to strike out must prevail, with costs.


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    Albanus L. Worthington v. Sarah R. Moon et al.
    1. Equity will not interfere to prevent a trespass where the legal rights of the parties have not been settled, nor where it does not appear that the injury to the inheritance will be irreparable, nor that the defendant is insolvent, but will leave them to their remedy at latv.
    2. Equity will not actively aid in the enforcement of a penalty or a forfeiture.
    On final hearing.

      Mr. Edwin Robert Walker and Mr. Garret D. W. Vroom, for the complainant.

      Messrs. Barton & Daives, for the defendants.
   Bird, V. C.

On the 29th day of April, 1893, the defendants in this case conveyed to the complainant about twenty-six acres of land. In the deed was the following stipulation :

The said premises are also conveyed with the understanding that the said party of the first part may remain in possession of them until the first day of April, eighteen hundred and ninety-four, and during that time may dig clay thereon as they have been doing, and in the same field, and may remove the same for their own use without charge therefor, and also that the said party of the first part may remove all unused posts and a certain child’s swing from said premises, on or before April first, eighteen hundred and ninety-four.”

The defendants remained in possession under this stipulation until the 1st day of April, 1894. During that period of time they excavated five hundred or six hundred tons of clay referred to, but did not remove it from the premises. The defendants ■claim that it was not removed because of an express suggestion to that effect from the complainant, because of the very unfavorable condition of the market. Within a short time after the defendants vacated the premises they commenced carting the ■clay therefrom. To restrain this action upon the part of the defendants, the complainant filed his bill and asked for a perpetual injunction. The complainant insists that the right to dig and to remove clay was limited to the 1st day of April, 1894, and that all of the clay which had been mined and cast upon the bank was forfeited to the complainant.

By the answer it is urged that every right to which the complainant is entitled he can maintain by an action at law. The only answer to this was that the removal of this clay was a destruction of the inheritance and irreparable in its nature. I apprehend this would be so had not the clay been excavated and severed. In this respect it must be regarded as trees severed or stones from the quarry. Evidently this clay is personal property. The claim, therefore, that the removal of it is an irreparable injury to the inheritance, is unavailing. Without this ingredient this court is powerless to act. This doctrine, I think, has never been disputed when the question has been raised. It was so decided in Hart v. Leonard, 15 Stew. Eq. 416, in the court of errors and appeals, although, as I understand, the discussion was not opened upon the argument in that court, as it certainly was not alluded to in the slightest degree in the court below. Cornelius v. Post, 1 Stock. 199; De Veney v. Gallagher, 5 C. E. Gr. 33; Scudder v. Trenton Delaware Falls Co., Sax. 694; Southmayd v. McLaughlin, 9 C. E. Gr. 181; High Inj. § 673; Fulton v. Greacen, 9 Stew. Eq. 216; Kerr Inj. *289.

The principle upon which these cases stand is that the action complained of is nothing more than a naked trespass, involving-no equitable considerations whatsoever and fit subjects for the-determination of a jury. This seems,to have been equally well settled, as a reference to the above-cited cases will show. See,, also, Kerlin v. West, 3 Gr. Ch. 449; West v. Walker, 3 Gr. Ch. 279. This case shows that the rule respecting the interference of equity is less rigid than it was anciently. Quackenbush v. Van Riper, 2 Gr. Ch. 350; 1 High. Inj. 699; Stevens v. Beekman, 1 Johns. Ch. 318.

Equitable considerations often appear which justify the interference of a court of equity in behalf of the party who complains of the trespass. Prominent among these is the insolvency of the defendant trespasser. Wilson v. Hill, 1 Dick. Ch. 367, and cases cited; West v. Walker, 3 Gr. Ch. 282; 1 High. Inj. 671, 674.

But in this case there is not only no allegation of the insolvency of the defendants, but no proof whatever has been offered, hence the complainant is without relief in equity. And in addition to this objection, the claim which he sets up amounts to a penalty or forfeiture, which courts of equity always refuse to-enforce except when the conditions are very plainly against the-defendant.

Mr. Bispham says: “It is well settled that a court of equity will not lend its aid actively to enforce a forfeiture.” Section 181. In 2 Lead. Cas. Eq. 2048, the doctrine is thus stated: ¿‘All the authorities concur that when the case is such that a court of equity would not set aside the forfeiture it would not intervene to enforce it, and will leave the parties to their legal rights and remedies.” Atlas Bank v. Nahant Bank, 3 Metc. 583, 583; Livingston v. Tompkins, 4 Johns. Ch. 415; Baxter v. Lansing, 7 Paige 350. In Meigs’ Appeal, 62 Pa. 28, 377, this principle is clearly presented, and see 1 Pom. Eq. Jur. § 459.

In this case the defendants expended their labor in the excavation of five hundred or six hundred tons of clay, which,, according to the complainant’s bill and the testimony, are worth from $300 to $400. According to the complainant’s insistment,, this has all been forfeited. So much of the consideration which lie was to give and which the defendants were entitled to he-claims the right to retain.

There seems, therefore, to be two well-settled principles governing courts of equity, which stand in the way of the complainant obtaining relief in this court, namely, the fact that the trespass complained of does not work irreparable injury to the-inheritance, and that a penalty or forfeiture would be the result of a decree in his favor, which courts of equity are always disinclined to pronounce.

I will advise that the bill be dismissed, with costs.