PITNEY, J. This is an application under section 28 of the railroad tax law of 1888 (Gen. St. p. 3332, par. 239), calling upon the court to solve a question of double taxation upon what is known as lot No. 10, block No. 152, in the city of Newark. The lot consists of a strip about 35 feet wide and 735 feet long, extending from the southerly line of Market street to the northerly line of Hamilton street, and lying on the westerly side of the main or thoroughfare tracks of the Pennsylvania Railroad that pass through the city of Newark. The platforms of the Market street passenger station and some of the station buildings stand upon this strip. The lot is indubitably used for railroad purposes. It was assessed for the year 1906 by the state board of assessors as part of the main stem of the Pennsylvania Railroad, and also by the local assessors of Newark (under P. L. 1906, p. 571) as "second-class" railroad property. For reasons suggested in the opinion delivered at this term in the case of Belvidere-Delaware R. R. Co. et al., we doubt whether the railroad company has the right to invoke the procedure laid down in section 28, p. 285, of the act of 1888, for the purpose of determining whether the property is mainstem or second-class property. But no objection to the procedure adopted was made upon the argument; and, since writs of certiorari would have been allowed to raise the same question, and since all parties concerned are before the court, we have concluded to pass upon the merits, and will consider the proceedings as amended (if necessary) by the substitution of writs of certiorari and proper returns thereto.

By the act of 1888 (Gen. St. p. 3325, par. 214) the term "main stem" of a railroad was declared to include "the roadbed, not exceeding one hundred feet in width with its rails and sleepers, (and) depot buildings used for passengers connected therewith." By a recent supplement (P. L. 1906, p. 220) the main stem "shall hereafter be held to include the roadbed not exceeding one hundred feet in width with its rails and sleepers, and all structures erected thereon and used in connection therewith, not including, however, any passenger or freight buildings erected thereon." The term "roadbed" is of plain import. It signifies the bed or foundation upon which rests the superstructure of rails and sleepers. Giving due effect to the word "main" in the phrase "main stem," the roadbed that is to constitute main stem must be deemed the bed or foundation of the principal tracks of the railroad at the place in question. We find from the evidence that the roadbed of the Pennsylvania Railroad at the place in question is no wider than the elevated structure upon which the main through tracks are carried; and this structure is only 56 feet in width, or thereabouts, and includes no part of lot No. 10, block No. 152. The lot in question, being outside of the roadbed, is

not within the main stem as defined in P. L. 1906, p. 220.

As pointed out in the opinion of this court in Central R. R. Co. v. State Board of Assessors (N. J. Sup.) 67 Atl. 672, 681: "The limitation of width is only one of several limitations that go to make up the statutory definition of 'main stem.' As defined in chapter 122, p. 220, Laws 1906, it does not extend beyond the roadbed with its rails and sleepers and structures erected thereon and used in connection therewith, although this be less in width than 100 feet. It is only in places where there may happen to be a greater width that the one hundred foot limitation has effect." In short, where the roadbed is less than 100 feet in width (as, for instance, 56 feet in the present case), all land adjoining it used for railroad purposes is second-class railroad property. The width of 100 feet, as used in the statute, is a measure of limitation, not of extension. Main stem can in no event be wider than roadbed. It is narrower where the roadbed is wider than 100 feet.

Nor do we understand that a contrary view was intended to be expressed in the opinion delivered by Mr. Justice Fort for the Court of Errors and Appeals in the recent case of Jersey City v. State Board of Assessors (not yet officially reported), reversing the decision of this court reported in 73 N. J. Law, 170, 63 Atl. 23. It is true the learned justice, having first quoted the statute to the effect that the term "main stem" of each railroad, as used in the act, "shall be held to include the roadbed not exceeding one hundred feet in width, with its rails and sleepers," etc., afterwards employs, arguendo, such general expressions as "the one hundred feet of main stem," and the like. But he goes on to say: "The presumption is that the roadbed as laid under the route as filed is to be taxed as main stem within the statutory width." In short, it is plain, we think, that he did not use the expression "the one hundred feet of its roadbed," and other like expressions, as meaning that main stem should be treated as having a width of 100 feet where less than that width is occupied by the roadbed. Indeed, no such question was presented in the case before him.

The present case does not show that plot 10 was originally acquired as part of the "right of way" of the railroad. But, even if this did appear, the plot could not properly be treated as part of the roadbed, for it is not now used, nor is there any present purpose apparent to use it in the future, for roadbed purposes. The rule laid down by the court of Errors and Appeals in United N. J. Railroad, etc., Co. v. Jersey City, 55 N. J. Law, 129, 131, 26 Atl. 135, has no application to the present controversy. There the sole question was whether the property in question was used for railroad purposes, not whether it was used for main stem or road

bed rather than for other railroad purposes. In that case the Chancellor said: "We think that where an authorized right of way has been acquired over which a railroad has been constructed and is in good faith operated, which right of way is not devoted to another purpose, it is used for railroad purposes within the meaning of the statute considered, although it may not, for the time being, be wholly occupied by tracks or other railroad appliances. That part of it which awaits railroad occupation upon the demand of necessity is in use like a curtilage to a dwelling house or the sides of a country highway." In the present case the land in question is of course used for railroad purposes. But the question whether it is main stem or secondclass property is quite a different question. Holding, as we do, that it is outside of the roadbed, it results that it was properly assessed by the city authorities as second-class railroad property. The city tax upon this property should therefore be affirmed.

The proofs do not enable us to determine to what extent the valuation imposed by the state board upon the main stem of this railroad should be reduced by reason of the circumstance that this plot was included in that valuation. This plot was not separately assessed by the board, and we have nothing before us to show what value was attributed to it by them. It appears that a part of the taxes payable to the state by these companies upon main stem for the year 1906 have been paid. What part does not appear. We are therefore unable from the proofs to make an order either for a reduction of the assessed valuation of the main stem, or for a return by the state to the companies of any portion of the amount paid upon account of the tax thereon.

If desired, we will hear counsel for the applicants and for the state with respect to these matters.

(70 N. J. E. 556)

In re COMPTON.

(Court of Chancery of New Jersey. Nov. 9, 1905.)

1. INSANE ING.

*

PERSONS-GUARDIANS-ACCOUNT

The Chancery Court may allow a guardian of a lunatic appointed pursuant to P. L. 1899, p. 233, c. 101, to account to it on the death of the lunatic, notwithstanding 2 Gen. St. p. 1699. § 19, requiring the guardian of a lunatic to render accounts to the orphans' court "from whom he * received his" appointment, which applies only to guardians appointed by the orphans' court after the termination of inquisition proceedings in lunacy in the Chancery Court. [Ed. Note. For cases in point, see Cent. Dig. vol. 27, Insane Persons, § 69.] 2. SAME PROCEEDINGS.

A guardian of a lunatic may, on filing his account after the death of the lunatic with the clerk of the Chancery Court appointing him, take an order of reference to a master to audit and state the account, and, on the coming in of the report, an application may be made to the court for a rule prescribing notice to be given

to parties in interest of a motion to confirm the report and for the settlement of the account.

In the matter of William Compton, a lunatic. On petition by Willard P. Clark, guardian, for accounting. Granted.

J. Kearny Rice, for the petitioner.

BERGEN, V. C. Willard P. Clark, of the county of Middlesex, was appointed by this court guardian of the person and property of William Compton, a lunatic, whose estate does not exceed the sum of $500. The appointment was made by virtue of a statute which provides that whenever by a petition, duly verified, it shall be made to appear that any person, a resident of this state, is an idiot or lunatic, and that no inquisition has been issued to determine such idiocy, and that no guardian, of the alleged idiot or lunatic has been appointed by the orphans' court of the county where the idiot or lunatic resides, and that the estate of such idiot or lunatic does not exceed the sum of $500, the Chancellor is authorized to ascertain, in a summary manner, the truth of the allegations, and to appoint a guardian for such idiot or lunatic.

P. L. 1899, p. 233, c. 101. This act also provides for a bond by the guardian to the ordinary of the state, to be filed with the clerk of the Court of Chancery.

The petition filed by the guardian of William Compton shows that the lunatic died September 14, 1905, and that, as guardian, he has in hand property amounting to the sum of $481.93, and prays that he may be allowed to file his account as such guardian in this court, and for such further proceedings thereon as may be necessary to have the same properly audited and approved by this court. The only question now presented is whether a guardian appointed under the statute referred to should account in this court or in the orphans' court of the county in which the idiot or lunatic resided.

Section 19 of the statute relating to idiots, lunatics, and drunkards (2 Gen. St. p. 1699) makes it the duty of the guardian of any idiot or lunatic once in three years, and oftener in case the orphans' court shall so order, to render to the orphans' court "from whom he or she received his or her appointment as guardian" an account of his or her administration, and, upon default, may be cited by the orphans' court to perform that duty, and, on the death of any idiot or lunatic, the guardian may be compelled to render an account of his administration in the same manner as executors and administrators under like circumstances are compellable. My conclusion is that, reading this section as a whole, it only applies to guardians appointed by the orphans' court after the termination of inquisition proceedings in lunacy in this court. The statute of 1899, under which the petitioner was appointed guardian, makes no provision for any accounting, but I have no doubt that where a special statutory jurisdic

a general guardian appointed for his person and property by this court, that the general jurisdiction of equity extends over such guardian, under which this court may call upon him to make an account of his trust. The statute under consideration was manifestly adopted by the Legislature for the purpose of affording a prompt and economical method of settling small estates, for by its terms it does not extend beyond estates where the sum or value exceeds $500. The Legislature having expressly committed to this court the power to hear and determine, in a summary way, the question of lunacy and to appoint a guardian, if a proper case is made, there can be no good reason urged why this court, having taken jurisdiction by virtue of that act, should not hold the case, and require its officer to complete his duty by properly accounting for the estate which has come into his hands by virtue of his appointment under the order of this court.

The petitioner, upon filing his account with the clerk of this court, may take an order of reference to a master to audit and state his account as guardian, and, upon the coming in of such report, an application may be made to the court for a rule prescribing the notice, to be given to all parties in interest, of a motion to confirm the report, and for the settlement and approval of the account.

(70 N. J. E. 300)

HOLCOMBE v. FETTER et al. (Court of Chancery of New Jersey. Oct. 30, 1905.)

1. PRINCIPAL AND SURETY REMEDIES SURETY-ENFORCEMENT OF PAYMENT.

OF

The rule that a surety may on the debt becoming payable file a bill to compel payment by the principal applies, though the principal is not insolvent or in danger of becoming so. [Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Surety, 88 510-512.] 2. SAME-DEFENSE.

A bill by a surety to compel payment by the principal filed on the debt becoming payable is a quia_timet bill, and the court's jurisdiction thereof rests on the fact that there is a debt due which it is the duty of the principal, in exoneration of his sureties, to pay forthwith, and the defense that the creditor may by reason of his laches lose his right of action against the surety is not available.

[Ed. Note. For cases in point, see Cent. Dig. vol. 40, Principal and Surety, 88 510-523.]

Suit by A. Larison Holcombe against Anthony G. Fetter and another. Heard on demurrer to bill. Overruled.

Carroll Robbins, for demurrants. John S. Van Dike, for complainant.

STEVENS, V. C. This is a suit by one of several sureties to compel a principal debtor to pay his debt to his creditor. It is said by Chancellor Green, in Irick v. Black, 17 N. J. Eq. 189, that, as soon as the debt has become payable, a surety may file a bill to compel

surety may be relieved from responsibility. That this rule is well settled appears from the following citations: Pom. Eq. Jur. § 1417; Dering v. Winchelsea, 1 Lead. Cas. Eq. (Am. note) *100; Irick v. Black, 17 N. J. Eq. 189; Delaware, Lackawanna & Western Railroad Co. v. Oxford Iron Co., 38 N. J. Eq. 153; Philadelphia & Reading Railroad Co. v. Little, 41 N. J. Eq. 519, 529, 7 Atl. 356; Herron v. Mullen, 56 N. J. Eq. 839, 42 Atl. 1016. It is argued that the rule is not applicable to the case at bar because it does not appear that the principal debtor is insolvent or in danger of becoming so; but the jurisdiction does not rest upon this distinction. It is further argued that, if the defendant Labaw sleep upon his rights as creditor, and by reason of his laches fail to recover from the principal debtor, such laches will be a defense to an action for contribution. But what delay amounts to laches is often a matter of doubt. The original creditor is not barred by laches alone. Pintard v. Davis, 21 N. J. Law, 632, 47 Am. Dec. 172; Newark v. Stout, 52 N. J. Law, 47, 18 Atl. 943. Whether a co-surety who has paid the entire debt, and thus, at least to some extent, succeeded to the creditor's rights, stands as to laches in a less favorable position than the original creditor, need not be considered, for the jurisdic tion in this class of cases rests upon the fact that there is a debt due which it is the duty of the principal debtor, in exoneration of his sureties, to pay forthwith. The bill is one quia timet. So far as the complainant is concerned, his liability, and therefore his right to exoneration is the same as it ever

1. CORPORATIONS INSOLVENCY -LIEN OF CREDITORS ON ASSETS. The appointment of a receiver for an insolvent corporation gives to its creditors such a lien on its assets as confers on the receiver the right to contest the validity of a mortgage covering the personal assets.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, § 2264.] 2. CHATTEL MORTGAGES TWEEN PARTIES-RECEIVER.

VALIDITY AS BE

A chattel mortgage valid as between the parties, though not recorded as a chattel mortgage and lacking the affidavit necessary to entitle it to record, was valid against a receiver of a corporation which purchased the property subject to the mortgage, which it did not assume, in the absence of pleading and proof that there were creditors of the purchasing corporation whose debts became a lien on the mortgaged chattels because of the insolvency proceedings. [Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, § 270.]

3. SAME AFTER-ACQUIRED PROPERTY FORCEMENT OF LIEN.

EN

Where a chattel mortgage covered afteracquired property, the mortgagee's right to per

fect his lien against such property could be enforced only in case the contract and circumstances were such as to sustain a decree for specific performance against the mortgagor or his assignee with notice, as to such chattels as the mortgagor had purchased and then assigned; the right being subject to any defense which would be available against a bill for specific performance.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, §§ 208, 209.] 4. SAME.

Where personal property of a corporation, subject to a mortgage covering after-acquired property, was purchased subject to the mortgage by another corporation which did not assume the mortgage, personalty acquired and added to the plant by the purchasing corporation was not covered by the mortgage.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, §§ 208, 209.]

Bill by the Fidelity Trust Company against Staten Island Clay Company and others to foreclose a mortgage. Decree for complainant as to a portion of the property.

For opinion on petition for rehearing, see 62 Atl. 441.

BERGEN, V. C. The Staten Island Terra Cotta Lumber Company executed a mortgage to the complainant, as trustee, to secure the payment of 350 bonds of the par value of $1,000 each. The property covered by the mortgage was real and personal; the latter being described as "all the personal property, slips, basins, ships, cars, machinery and fixtures of said Staten Island Terra Cotta Lumber Company now owned or that may hereafter be acquired by it." In a subsequent paragraph of the indenture the property pledged was further described as "and all other property, real, personal and mixed, fixtures and improvements now held and owned, or which may hereafter be acquired for, or in connection with, the construction, operation and maintenance, reparation or replacement of the business of said lumber company, or as convenient or necessary for the uses or purposes thereof, ⚫ together with all improvements or additions made or to be made to any or all of said property and estates and their appurtenances by the said party of the first part." The mortgagor company becoming insolvent, receivers were appointed, and the mortgaged property sold and conveyed by them to the defendant corporation, subject to the mortgage referred to, the payment of which was not assumed by the purchaser. After such purchase, the defendant company took possession of the real and personal property and continued the business, purchasing and bringing upon the premises additional chattels, which were used in connection with the business, and are now the subject of this controversy. The mortgage, although intended to be a lien on personal property, was not supported by the statutory

affidavit as to the character of the consideration and the amount due, nor was it recorded as a chattel mortgage in the manner required by law. The defendant company, after prosecuting the business for a number of years, became insolvent, and was so adjudged by the United States Circuit Court for the District of New Jersey in proceedings had in that court for that purpose, and in furtherance of which W. Meredith Dickinson was appointed receiver of the corporation. The proceedings in this cause have for their object the foreclosure, by the trustee, of the mortgage given by the Staten Island Terra Cotta Lumber Company, subject to which the defendant company took title to the lands and chattels therein set out, and the only contest is over the right to the possession of the chattels, as to which the receiver raises two questions, claiming, first, that as to the de fendant corporation which he represents the mortgage is void as to all the personal property because it was not recorded as a chattel mortgage, and also that it lacks the affidavit essential to permit such record; second, that, even if good as to the chattels which were bought subject to the mortgage, it is no lien on such after-acquired property as was brought on the premises by the defendant company.

The first proposition is not advanced by the receiver on behalf of the creditors of the insolvent corporation, for it is not alleged in the answer that the contest is waged for such a purpose. On the contrary, the answer only claims that the mortgage is void as against the Staten Island Clay Company as a purchaser in good faith of the mortgaged premises, and also that it is void against the answering defendant as receiver of the clay company, because there was no delivery followed by an actual and continued change of possession, and also because the mortgage had not attached to it the statutory affidavit, and was not recorded as a chattel mortgage. No evidence was offered to show that there were any creditors of the Staten Island Clay Company whose debts had become fastened upon the mortgaged chattels because of the insolvency proceedings. It is well settled in this state that the appointment of a receiver for an insolvent corporation gives to its creditors such a lien upon the assets of the company as to give to a receiver representing such creditors a footing in this court to contest the validity of a chattel mortgage covering its personal assets. Graham Button Co. v. Spielmann, 50 N. J. Eq. 120, 24 Atl. 571. Such a condition, however, is not presented here, there being not the slightest intimation in the answer of the receiver, nor in the proofs offered, that there are any unpaid creditors of the insolvent corporation whose debts are a lien uron these chattels. The ability of the counsel engaged in this cause forbids the presumption that so potent an element of contest has been overlooked. As

the cause now stands, the contest is confined to the complainant on one side and the de fendant corporation, represented by its receiver, on the other. And it follows that the first proposition must be determined against the receiver, for he stands in the place of the party who bought subject to the mortgage, with full knowledge of its existence and of the amount due thereon, of which sum it had the benefit when the consideration price was fixed. The infirmities in the execution and the want of record do not invalidate the instrument as between the parties to it.

The second insistment of the receiver presents the question whether a purchaser of the equity of redemption in personal property, which he takes subject to a mortgage containing a covenant that all after-acquired property brought on the premises by the original mortgagor shall be subject to the lien of the mortgage, is bound by that covenant to the extent of having all property he may purchase and bring on the premises by way of increase, or, in substitution of that exhausted in the ordinary conduct of the business, made liable for a debt he neither created nor assumed. The right of a chattel mortgagee to perfect his lien upon after-acquired property, when his mortgage, by its terms, is made to extend to such chattels, is based in equity upon the theory that such an agreement is a present contract to give a lien, which becomes effective as soon as the property comes into the ownership of the mortgagor or contractor, and may then be enforced in equity, subject to any defense that would be available against a bill for specific performance. The relief is in the nature of specific performance, and is applicable only where the contract is such as, under the circumstances, would be the subject of a decree for specific performance against the mortgagor, or his | assignee with notice, as to such chattels as the mortgagor had purchased and then assigned. Williamson v. New Jersey Southern Railroad Co., 29 N. J. Eq. 311; Dunn v. Hastings, 54 N. J. Eq. 503, 34 Atl. 256. The pres ent case, if the complainant's contention is to prevail, would require the defendant to perform a contract not made by him, and to give the complainant a lien on goods not expressly contracted for. The original mortgagor only agreed to furnish a lien on goods acquired by him, not on those purchased by another, and neither the present claimant nor the company he represents made any agreement with the mortgagor. The equity of redemption alone was purchased, and no obligation to pay the existing debt or to carry out the covenants in the mortgage was assumed. I am of opinion that the purchase of personal property subject to a chattel mortgage does not carry with it the liability to recognize the agreements of the mortgagor to subject his after-acquired property to the lien of the mortgage, unless the purchaser shall affirmatively assume the covenants contained in the

mortgage or the debt it was given to secure.

In Kribbs v. Alford, 120 N. Y. 519, 525, 24 N. E. 811, the purchaser of chattels was charged with notice, because of its record, of a mortgage incumbering them and "all structures, fixtures, equipments and appurtenances now on said lease, or hereafter to be placed thereon." The purchaser did not assume to pay the mortgage or to carry out its provisions. In determining that after-acquired property purchased and brought on the leased premises by the assignees of the mortgagor was not subject to the lien of the mortgage, the court said: "But it did not, in addition, burden them with the obligation to make good the personal covenants given by the lessee to third parties as security for an indebtedness. Because they had constructive notice of the existence of the mortgage, the lien of the plaintiff can be enforced and the defendants deprived of the machinery on the premises at the time of the purchase by them of the lease. But the lien provided for by the instrument could, in any event, only extend to property thereafter acquired by the mortgagor. It could not attach to chattels to which the mortgagor has not acquired either title or possession. Indeed, it does not by its terms purport to embrace any other after-acquired property than that placed thereon by the mortgagor." A different rule prevails where the purchaser assumes the payment of the mortgage and the obligation it was given to secure, as in Re Sentenne & Green Company (D. C.) 120 Fed. 436, where the purchaser assumed all of the obligations of the assignor, and as in Stoll v. Sibson, 65 N. J. Eq. 552, 56 Atl. 710, where the purchaser did not assume the payment of the mortgage, but entered into a collateral agreement with the mortgagee, by the terms of which the mortgagee agreed to accept the notes of the purchaser and to cancel the mortgage when the notes were paid. Here the court held that the mortgage thereafter became a mortgage to secure the payment of the purchaser's notes, and as to him it remained as it had theretofore been with respect to the other owners. One of the previous owners had purchased from the mortgagor, and from him the title passed through other owners to Sibson, and each purchaser, excepting the last, had assumed the obligations of his predecessors in title. But while Sibson, the last purchaser, had not expressly assumed the mortgage, he dealt directly with the mortgagee, and, in effect, assumed the payment of the mortgage debt, giving his own obligations therefor, and permitted the mortgage to stand as a security for his debt. Such conduct amounted to an assumption and a recognition of the terms of the mortgage security as an indemnit to the mortgagee for the extension of payment to the purchaser.

I will advise a decree in favor of the complainant as to the property embraced in the mortgage in express terms, and also as to