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Guardian and Ward-Continued.

should be credited with a certain investment. In a litigation,
after his death and insolvency, between the ward and the sure-
ties upon his respective bonds-Held, that each fund should be
credited with one-half of the amount of the investment. Smith
v. Gummere,

See EVIDENCE, 2.

394

Husband and Wife.

H.

1. A decedent left no property, except a lot with an unfinished house
thereon, which his widow occupied for about three months after
his death, and then leased, and received the rent. In a suit by
the children for partition thereof-Held, that she was entitled to
re-imbursement of moneys paid by her for taxes thereon, and
also for repairs of damage to the house by a tempest, but not for
the premiums on insurance policies taken in her own name, and
that she must account for the rents. Houston v. Houston,

2. The legislation of this state, enlarging the capacity of a married
woman to acquire and dispose of property, does not give her
capacity to make a legal contract with her husband. Farmer v.
Farmer,

3. A wife may bestow her property, by gift, on her husband, or she
may make a contract with him which will be upheld in equity,
but the courts always examine such transactions with an anxious
watchfulness and dread of undue influence. Id.,

146

211

211

4. Under the laws of France, by a marriage without a contract as to
property, a community of property between the husband and
wife is established as an incident of the marriage. During
coverture the husband has the control and management of the
community property, and he may dispose of his share of the
common property by his will; but the wife's share-that is,
the one-half of the community property--the husband cannot
dispose of, and she will be entitled to it on his death. Harral
v. Harral,

5. A son advanced money to his mother for her support during her
life, under an agreement that he should be repaid at her death
out of her estate. The son procured from his wife the money
advanced, agreeing that she should have the account against his
mother. Equity will enforce the claim in behalf of the wife.
Titus v. Hoagland,

6. The parol assignment to the wife being unknown to the mother, a
counter-claim which she had against her son at her death will
be set off against this claim of the wife. Id.,

279

294

294

See ATTORNEY; DIVORCE; DOMICILE, 3, 4; DOWER; EVIDENCE, 3, 7;
FRAUD, 1; LIMITATION OF ACTIONS; TRUST, 3; UNDUE IN-
FLUENCE, 2.

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Infant.

I.

See FRAUD, 3; GUARDIAN; PARENT AND CHILD; TRUSTS, 4.
Injunction.

A statute of 1876 authorized the appointment of deputy county clerks,
but provided that they should receive no salaries from their
respective counties. A statute of 1882 directed that in all counties
where the county clerks were then paid by annual salary, the
deputy clerk should receive an annual salary of $2,000, payable
quarterly. A bill was filed by some tax-payers and citizens of
Camden county, alleging that the statute of 1882 was unconstitu-
tional, and thereupon an injunction was issued, restraining the
county collector from paying, and the defendant from receiving,
as deputy county clerk, any salary thereunder. Pending the
suit, the board of freeholders passed a resolution appropriating
$160 per month to the defendant for his services in the county
clerk's office from the time the bill was filed and injunction
issued.-Held, that, although the board of freeholders were not
parties to this suit, the payment of the money by the county
collector, and its reception by the defendant, were palpable vio-
lations of the injunction. Gibbs v. Morgan,

See ACCIDENT, 2; CORPORATION, 1, 2; EASEMENT; SPECIFIC PER-
FORMANCE, 4.

Insanity.

Sce EVIDENCE, 2; WILLS.

Insurance.

A policy of insurance issued in the name of the agent of the owner
of the vessel insured, instead of in the name of the principal,
through the mistake of the insurance company's agent in pre-
paring the application for the policy, without any representation
or mistake of the owner or applicant for such insurance, may be
rectified after the loss of the vessel, the act of the company's
agent in such case being that of the company and not of the
insured, notwithstanding the fact that he signed the application
with his own name "for applicant." Hill v. Millville Mutual
Marine and Fire Insurance Co.,

See HUSBAND AND WIFE, 1; MORTGAGE, 5; TRUSTS, 4.
Interest.

An oral agreement to reduce the rate of interest on a mortgage from
seven to six per cent., and to pay it semi-annually instead of
annually, made after the mortgage became due, is valid. Sharp
v. Wyckoff,

See DEVISE, 2; GUARDIAN, 2.

79

66

376

Issue at Law.

Where the facts are undisputed, and the cause is to be decided upon
mere questions of law, it is not error for the court to direct the
jury what verdict to find. American Dock Co. v. Trustees,
See EASEMENT; PRACTICE, 5.

J.

409

Judicial Sale.

By the terms of a foreclosure sale the purchaser was required to pay
ten per cent. of the purchase-money at the close of the sale, and
if he should not complete his purchase, the premises would be
offered for sale again, and the defaulting purchaser should not be
benefited by any advance in price at such second sale, but liable
for all loss and expense occasioned thereby. A purchaser of the
premises for $9,900 paid the ten per cent., but did not pay the
balance of the purchase-money, and the premises bought by him
were resold by the sheriff, and brought $10,500.-Held, that he
was entitled to the ten per cent. deposited by him. Chancellor
v. Gummere,

Jurisdiction.

1. Where a sale of lands under a municipal assessment is absolutely
void, because made after the time limited by law for the continu-
ance of the lien of the assessment on the premises, this court has
no authority, on a bill quia timet, to order the complainant to pay
the assessment; neither can it correct it, nor declare it a lien on
the premises, under the statute providing that such assessments
shall not be set aside for irregularities or defects in form &c.
Field v. West Orange,

2. The complainant made a contract with the receiver of a railroad
(the defendant's predecessor) to remove the coal, ashes and cin-
ders from a specified ash-pit on the railroad, and to have there-
for the coal, ashes and cinders so removed. He alleges that the
former receiver refused to allow him to perform the contract, and
that he thereby sustained great damage.-Held, on demurrer,
that this court would entertain jurisdiction of the suit, on the
ground that the contract having been made with a former re-
ceiver, the present receiver (the defendant) cannot be sued thereon
at law, and the claim is against the trust funds of the railroad
company, which are still under the control of this court. Kerr
v. Little,

582

3. Where an executor has, by retainer, satisfied his own claim against
the estate, the orphans court, in passing his account, has juris-
diction to inquire into the validity of the claim, and the legality
of his action in retaining therefor. Kinman v. Wight,

4. A firm owning, as partnership property, real estate, was dissolved
by the death of one of the two partners. The settlement of the

60

83

501

Jurisdiction-Continued.

partnership affairs was proceeding in the court of chancery in a
suit pending between the surviving partner and the executrix of
the deceased partner, who had, by his will, acquired his interest.
Under such circumstances, the parties entered into a written con-
tract for the sale of all the real estate to the executrix, who was
to pay for it by procuring releases of some mortgages which encum-
bered it, and by also depositing in court $30,000, to be disposed
of in the settlement. The executrix failed to perform her part
of the contract, and the mortgages having been foreclosed, a sale
under a decree of foreclosure divested the interest of the parties
and rendered specific performance of the contract impossible.
The surviving partner filed a supplemental bill by leave of court,
praying that the losses sustained by the partnership estate by the
breach of the contract, should be ascertained and decreed to be
paid or accounted for by the executrix.-Held,

(1) Whether the relief asked is, under such circumstances,
within the jurisdiction of a court of equity, not decided.

(2) If the court has jurisdiction, the relief should be granted
under the same rules which are applicable to the granting of re-
lief by way of specific performance, and if he who seeks relief
was unable to perform the contract on his part, or his conduct in
the transaction was wanting in fairness and equity, the relief
should be denied.

(3) In this case the contract could not have been performed by
the surviving partner, according to its terms, and his conduct
respecting it was so inequitable as to justify the refusal of the
relief he sought. Ludlum v. Buckingham,

See CONSTITUTION, 4; CONTEMPT; DOWER, 3; EXECUTORS, 2, 17;
LANDLORD AND TENANT.

Landlord and Tenant.

L.

A landlord, by a mere oral agreement, rented a hotel to a tenant, in
1867, with a stipulation that if he should enlarge the hotel the
tenant would pay him a specified additional rent, and that the
tenant should also have the privilege of purchasing the premises
at cost. The tenant entered and occupied the demised lands, and
the landlord and tenant both made valuable additions thereto.
The landlord died in 1876, and the tenant in 1879. Pending
litigation in another state over the landlord's will, the defendant
was appointed by this court a receiver of the premises; and a
few months prior to the tenant's death, he (the tenant) made an
assignment to the complainant for the benefit of his creditors.
On a bill alleging these facts, and that the estate of the landlord
is indebted to complainant for board &c. furnished the landlord
and his family, and that the accounts between the parties are

563

Landlord and Tenant-Continued.

complicated, and the items numerous-Held, (1) that this court
would entertain jurisdiction of the matter; (2) that the statute
of limitations, under the circumstances, was not a defence on the
part of the landlord or his representatives; (3) that the cost of
improvements to the premises, made by the tenant, could not be
included in this accounting. Woolley v. Osborne,

See HUSBAND AND WIFE, 1.

Limitation of Actions.

Quere. As to the application of the statute of limitations to a debt
due from a husband to his wife. Gray v. Gray,

54

511

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"Qui tacet consentire videtur, qui potest et debet vetare, jubet si non

vetat,"

359

"Quod non apparet non est,"

124

Mistake.

See ACCIDENT.

Mortgage.

1. A mortgage of $1,000 was foreclosed, but through the mistake of
the complainant's solicitor a subsequent judgment creditor was
not made a party. By an agreement between the owner of the
equity of redemption (which was subject to the charge of a life
estate and legacies amounting to $1,750, all of which were para-
mount to the judgment) and the mortgagee, the latter purchased
the premises at the foreclosure sale and transferred his bid to the
owner of the equity of redemption, and at the same time advanced
to him another $1,000, for which he received a mortgage of $2,000,
including his old mortgage, on the same premises. The owner
of the life estate and the legatees released their respective interests
in the premises, taking therefor mortgages subsequent to com-
plainant's $2,000 mortgage. The additional $1,000 was expended
in paying off the principal and interest of encumbrances prior
to the $1,000 mortgage, and taxes on the premises then due.-
Held, that the judgment did not, through the solicitor's mistake
in omitting it from the foreclosure, become a lien on the premises
prior to the $1,000, but the latter must still be treated as an ex-
isting encumbrance, and the complainant entitled to an account
of the moneys due to him thereon, and of all moneys paid by
him or any subsequent grantee for taxes and necessary repairs

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