DIVORCE-Continued.

5.

6.

7.

8.

PAGE.

Irrespective of such a defence, it is the duty of a husband whose wife has separated from him, to show that he has been during the two years, sincerely willing and desirous that she should return to him, else her absence is not obstinate. Id..............

A decree of divorce obtained in another state upon a false allegation of domicile therein, will be treated as void here on the ground of fraud. STREITWOLF v. STREITWOLF..........

427

563

In a suit brought by a wife for a limited divorce on the ground of extreme cruelty, alimony pendente lite was awarded her. She subsequently applied for additional alimony pendente lite to enable her to meet the expense for tuition and books at a law school, of her son, then in his twentieth year, who lived with and was chiefly supported by her. No order has been made giving the custody of the son to either parent. The application was granted, against the opposition of the husband, who testified that he thought his son unfitted for the law, and wished him to go into business.-Held, that the order giving additional alimony pendente lite to enable the wife, against the judgment of her husband, to secure for the son a professional education, should be reversed. STREITWOLF v. STREITWOLF.. 570

The right of a wife to support pending suit embraces a provision for the suitable maintenance of herself and of children who are dependent on her, including the expense of ordinary education, but will not be extended, against the opposition or without the acquiescence of the husband, to include the cost of the professional training of a grown-up son not in the custody of the wife. Id.............. 570

E.

EQUITABLE RELIEF-1. Though a court of equity will not determine a dispute concerning a purely legal title to lands, where no equitable question is connected therewith, it will restrain wanton injury to structures on the land in dispute, not adequately remediable at law, until the complainant shall, by suit at law, have his rights adjudicated. JOHNSON v. HUGHES....................................、

2.

A judgment that plaintiff did in fact make a valid and enforceable contract at law is no bar to a suit in equity to relieve him from its effect on the ground of mistake. SCOTT. HALL........ See DEVISE AND LEGACY, 5; INJUNCTION, 1, 3, 4.

..................

ESTATES-By the will the income of an estate is given for life to the widow of the testator. The will fails to dispose of the residue of the estate. The administrator cum testamento annexo filed a bill for interpretation of the will and instruction as to his duties, making only the next of kin and not the life tenant or her representatives, de

406

42

ESTATES-Continued.

PAGE.

fendants. On an accounting ordered in this court in such a suit, neither the receipts of the life estate nor the disbursements therefrom, should be stated. There is no jurisdiction over the life tenant or her representatives, they not being parties. HARTSON v. ELDEN... 478 EVIDENCE-1. Where, in action to foreclose a mortgage, the defence is usury and the proof shows a usurious bargain, but the usurious contract proved does not correspond with that set up in the answer, the variance is fatal. RICHARDS v. WEINGARTEN

2.

3.

4.

Upon the facts as shown in this casese-Held, that the evidence is insufficient to establish a trust in the defendants in respect to the lands in question. BUDDENSIEK v. LIPMAN..........

206

..... 334

When an executor seeks to evade liability on a note executed by his decedent, a married woman, on the ground that it was given to secure another's debt, the burden of proof is on him to show that it was so given. SHIPMAN v. LORD.........

381

One seeking to charge a married woman's estate for money loaned, and for which her husband personally executed evidence of indebtedness, on the ground that the loans were for the benefit of her estate, has the burden of showing that the loans were so made. Id... 381 See DEBTOR And Creditor, 1, 2; DEVISE AND LEGACY, 9; STREET RAILWAYS.

EXECUTION-1. A judgment creditor who has delivered his writ of execution to the sheriff may maintain a bill in chancery to set aside a fraudulent sale of personal property made by the defendant. HALL v. NASH.......

2.

By force of Gen. Stat. p. 1418 18 a writ of execution from the time of its delivery to the sheriff binds the goods of the defendant as against himself and his assigns. Id...... See JURISDICTION, 3.

.........

EXECUTORS AND ADMINISTRATORS-1. A deposit in a savings bank made in the name of "W. P. S., Surrogate," can be drawn by the administrator of W. P. S. SCUDDER v. TRENTON SAVING FUND SOCIETY.......

2. An executor who pays a debt of his testator with his own funds, will be subrogated to the right of the creditor. SUYDAM v. VOOR

3.

HEES

554

554

154

157

Where a testator held land subject to a mortgage, and the mortgage is not foreclosed until after the time for presenting claims to the executors has expired and a decree barring creditors has been taken, the claim may still be maintained, as before foreclosure it is contingent and not presentable to the executors. FIELD V. THISTLE........ 339

EXECUTORS AND ADMINISTRATORS - Continued.

PAGE.

4. — Where an executor wrongfully causes land to be conveyed to
himself, when he should have had it conveyed to complainants as
security for a debt owing to them, they can maintain a bill in equity
against him to charge the land and have it sold to pay their debt.
SHIPMAN v. LORD.......

5.

6.

381

An executor under a will which gives him a power to sell per-
sonalty and a power to mortgage and sell realty has no power to
pledge the estate to carry on a partnership, nor has he power to bor-
row money for the purpose of improving the real estate of his
decedent's estate.
381

Id.......

An administrator cum testamento annexo, having the money of the
residuary estate in his hands, uninvested, awaiting determination of
disputes as to its ownership, having no duty to invest it, will not be
surcharged with interest, when it appears that he received no profit
from its use, and was always ready to pay it over as soon as its owner-
ship was settled. HARTSON v. ELDEN...

.........

Duty of executrix, in case stated, defined. BENTLEY v. CAD-

...........

See ACCOUNT, 13, 14; COMMISSIONS; EVIDENCE, 3.

478

562

F.

FEES AND COSTS-See CONTRACT, 3.

FIDUCIARY RELATION-See ACCOUNT, 15.

FIXTURES—1. Portions of machinery assembled together and set up
in a special building erected for its reception, which may be removed
without trouble and used in any similar mill, may be treated either
as a chattel or a fixture, according as the intention of the parties and
the justice of the case may require. HUDSON TRUST, &C., INSTITU-
TION 2. CARR-CURRAN PAPER MILLS CO........

2.

3.

Thornton W. Fay held the legal title to land in trust for the
complainants, and then mortgaged the land for his own benefit to
one who had no notice of the trust.-Held, that on a bill to fore-
close the mortgage, to which Fay was a party, but the cestuis que trust
were not, the decree did not bar the latter, nor did a sale under the
decree made to purchasers who had notice of the trust. PANCOAST
v. GEISHAKER

Besides the circumstances above mentioned, Fay owned a share
of the land in his own right, and the price paid for his share by the
purchasers at the foreclosure sale was more than sufficient to satisfy
the mortgage.—Semble, that as against the purchasers the estate of
the cestuis que trust was discharged from the mortgage. Id............. 537

PAGE.

FORECLOSURE-See MORTGAGES, 4.

FRANCHISES-Where a street railway corporation has expended
large sums of money and exercised due diligence in building and
operating its road, so as to comply with an ordinance of permission,
but unforeseen circumstances have caused a delay, which has occa-
sioned no pecuniary injury to the township or its inhabitants, equity
will interfere to restrain the adoption of an ordinance by the town-
ship declaring a forfeiture of the franchise of the corporation because
it did not comply with the statute of permission, which provided
that cars should be running at a certain headway, on a continuous
line of double track, within a specified time. NEW JERSEY STREET
RAILWAY Co. v. SOUTH ORANGE.

FRAUD-A mortgagor conveyed the mortgaged property by a deed
containing an assumption clause. This grantee conveyed it to another
and the third to a fourth, each of the deeds containing similar as-
sumption clauses. The mortgagor became hopelessly insolvent, and,
after notice of foreclosure suit having been begun, executed a release
of the assumption clause to his grantee, who in turn executed a
release to his grantee. These releases were executed in pursuance of
an understanding that all the assumption clauses should be released
successively.-Held, sufficient to establish fraud in the releases.
FIELD V. THISTLE

G.

GUARDIAN AND WARD-See ACCOUNT, 9.

H.

HUSBAND AND WIFE-1. A wife, who, after her husband's
death, occupies a portion of decedent's premises, with the family,
and rents the remainder, is not entitled to retain possession of the
whole under the right of quarantine: KERNEY v. HENNING........

74

2. Equity is the proper forum in which to enforce contracts between
husband and wife. BISHOP v. BOURGEOIS............

417

3.

A wife's promissory note is forceful only when some beneficial
consideration proceeds to her or to her estate.
Id.

417

4.

The wife's possible share in the surplusage of her husband's
personalty in case he should die intestate and leave any, is too re-
mote to operate as a beneficial consideration for her promissory
note, given to pay his debts incurred for the purchase-money of per-
sonal property acquired by him. Id ..... .......

417

I.

INJUNCTION-1. Equity will enjoin the contamination of waters creating a public nuisance, though redress may be had on indictment by abatement of the nuisance. ATTORNEY-GENERAL v. PATERSON..

2.

3.

4.

5.

6.

PAGE.

Pending a hearing in a suit to enjoin a city from discharging sewage into a river, an injunction may be granted restraining the city from increasing the discharge where the potableness of the water is destroyed and noxious smells arise from the polluted water, which produce general discomfort to the inhabitants along the river, but the city will not be enjoined from continuing to discharge sewage until it has had a reasonable time to provide other means to dispose thereof. Id

The defence of insanity to a sealed instrument is available at law under the plea or replication of non est factum; hence equity will not intervene at the instance of a plaintiff at law to enjoin the use by the defendant at the trial at law of a release of the cause of action on the ground that it was executed when the releasor was insane, in the absence of proof that fraud was practiced in procuring its execution. HOBOKEN FERRY Co. v. BALDWIN......

..........

1

1

36

Equity will not entertain a bill by a creditor of a mortgagor, where he has acquired the legal title to the mortgaged chattels of his debtor by a sale thereof under an attachment, to enjoin a sale by the mortgagee on foreclosure of his mortgage, executed prior to the attachment, but claimed by the creditor to be invalid on the ground that it does not state the consideration therefor, and for the determination of its validity, as the parties have an adequate remedy at law, by replevin. JERSEY CITY MILLING Co. v. BLACKWELL.................... 122

A corporation employs from fifteen to twenty-five men in conducting a business upon leased land bordering upon the Passaic river, a tidal stream. The city of Newark proposes to build a sewer, through which a large quantity of sewage will be discharged into the stream at a point fifty-five feet from complainant's premises. It is clear that the sewage at certain recurring periods of each year will create a stench which will be very offensive to the officers and employes of the complainant while transacting the business of the company upon the premises, and will impair the value of its property.Held, that, although the injury is only anticipated, it will be enjoined. SAYRE v. NEWARK

When the complainant's title to the property threatened with injury, appears on the face of the bill and accompanying affidavits to be defective, a preliminary injunction will not be allowed. AMos v. NORCROSS

136

256