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ASSIGNMENT FOR BENEFIT OF
11. The question whether an award is 1. By a general assignment for the excessive or unjust cannot be con
benefit of creditors, the equity of sidered in a court of eqnity, nor its redemption in mortgaged premises merits reviewed. But where the vests in the assignee, whether the alleged errors are of a sort sufficient mortgage deed is absolute or condi- to set aside the award, this court tional on its face. But property will regard them, so that a deterwhich the debtor has fraudulently mination apparently excessive may conveyed to hinder and delay cred- be reviewed. W. J. R. Co. v. itors, which he could not convey Thomas,
205 to strangers, does not pass by such assignment. l'an keuren v. Mc- 2. This court has jurisdiction over Laughlin,
163 awards, but it will not exercise it in
case of awards, which, by agree2. Money due at the time of such as
inent, are made rules of court. The signment, to the assignor from Pathat power and must exercise it. 1b.
court in which the rule is entered has chaser to whom he had assigned his property to defraud creditors, will belong to the assignee. And if the 3. Vo court will review and corrett purchaser, after the assignment, an award; the only power is to set pay it to the assignor, it is no bar it aside for corruption, or misconto the right of the assignee; the duct in the arbitrators, or a plain payment is in his own wrong, Ib. mistake of law or fact. And if
arbitratois decide against law, not 3. But a court of equity will not, in
by inistake, but of purpose, with a decree which declares such sale
the intention of making a just void as against the complainant as
award, when the strict principles of a judgment creditor, direct the
law seem to them to work injustice, chaser to pay or account for the
their award will not be disturbed. proceeds to the assignee. 16.
1. 4. When a creditor of the debtor
4. If the arbitrators proceed without
the knowledge of either party, and making an assignment for the
without giving him an opportunity benefit of creditors, who has not exhibited his claim to the assignee,
to be heard, or if they decide with cliscovers that lands of the debtor
out any evidence, it is such mis
conduct as will set aside their not sold or administered by the
1. assignee, had been conveved by way of mortgage only, though by deed absolute on it's face, such 5. When a new arbitrator is chosen creditor is entitled to his pro rata by the original arbitrators, either dividend out of the value of the
party has the right to adduce addiequity of redemption, as property tional testimony and additional arfound by him and not accounted guments. And when either party for by the assignee before distribu- has not only not waived such righi, tion.
I. but before the award was made,
presented his protest to the arbi5. The ratable proportion of such trators as soon as could reasonable
creditor is, in the first place, to be be done, and served an injunction paid on his claim the same per upon them to restrain them from centage as the other creditors have proceeding, and the arbitrators shut received who duly presented their him out from this right, and make claims, and then to have the resi- their award in the face of the proclue of such newly found property test and injunction, it is such inis. distributed equally between him conduct as will set aside the award. and such creditors. 10.
that the J. C. and H. Horse Rail-
road Company shall have the joint
shall be laid in said streets by vir-
disagreement shall arise between
said two companies, as to the ex-
pense or manner of laying said
tracks, or the use thereof, such dis-
agreement shall be finally adjudi-
council.” The 9th section pro-
vided that the ordinance should go
into effect as soon as the J. C. and
B. Company should, under their
would apply, at the next session of
the legislature, and obtain if possi-
ble an amendment to their charter,
mortgage was given to secure con- the common council to lay their
123 The 21 section of that supplement
provides : “ That the said 'J. C. and
as well to the sale of stocks as of repairing, and maintaining their
I. be subject to such conditions as the
common council of said city in the
ordinance granting consent to lay
such rails and construct said road,
shall have imposed, or shall impose
Company, and the J. C. and B., mon council passed an ordinance
pany shall have the joint use of the
boken Company are those only, named in the 3d section of the Bergen Company's ordinance of December 13th, 1859. J. C. & H. Horse R. Co. v. J. C. & B. R. Co.
See LICENSE, 1.
See MORTGAGE, 15, 16, 18, 19.
CHOSE IN ACTION.
with the Hoboken Coinpany, and of the 21 section of said supplement of 1860, as effectually a part of that supplement as if embodied in terms therein, and binding upon the Bergen Company, and the Hoboken Company is entitled to the joint use of the Bergen Company's track
through the streets specified. 2. The right, though vested, cannot
be exercised entirely at the expense
of the Bergen Company. 3. The provision that, in case of disa
greement between the companies as to the expense or manner of laying the tracks, or their use, such disagreement should be finally adjudicated and settled by the common council, was proper and lawful. It became embodied in the act of incorporation, and is a condition on which the franchise is to be enjoyed, and does not depend' merely upon the force of an agree
ment to arbitrate. 4. The termination of the agreementi
Se JUDGMENT CREDITOR, 1.
See LICENSE, 1-3.
See MORTGAGE, 1, 2.
See JURISDICTION, 5, 6.
5. The common council had no power ('ONSTITUTIONALITY OF LAWS.
to declare a forfeiture by the Ho-
('ONTRACT and no authority was given to the
council to forfeit for non-payment. 1. A mistake as to facts or the con6. The words "upon their agreement,"
tents of a contract for the sale of &c., in the 3d section of the ordi-| land, might, in some cases, excuse nance of January 10th, 1860, do or modify the performance, but the not qualify the right of the Hobo / vendor must perform it according ken Company; that right became to its legal effect, unless he is misfixed by the ordinance of Decem- led by the fault of the other party. ber 13th, 1839.
Zane' v. Cawley,
130 7. The true intention of the said ordi
nance of January 10th, 1860, was 2. If a plaintiff in execution, make only to subject the joint use to just an agreement with the defendant such condition as was contained in that he will buy the property at the 3d section of the Bergen Com- sheriff's sale and hold it for his pany's ordinance.
benetit, and takes advantage of 8. The tracks of the Bergen Company such agreement to buy in the pro
subject to the joint use by the Ho- perty at prices lower than he otherthese lots from the grantee could
wise could have donc, he will be
See MORTGAGE, 13.
3. The inere non-performance of a
expressly understood and agreed,
that the houses which may
erected on Gilbert street, shall be
line of said street,” is a covenant
running with the land, and binds
not only those who derive title
from the covenantors, but also their
grantees. Winfield v. Henning, 188
not enforce this covenant against
the purchaser of another of them.
But, in equity, its observance will
SPECIFIC PERFORMANCE, 22, 27.
MORTGAGE, 7, 8.
6. This being the plain import of the
Ib. files his cross-bill without unneces-
sary delay, cannot be deprived of
the benefit of such facts at the com-
plainant's instance, where he was
the complainant, and who had been
recommended by complainant to
the defendant as a trustworthy per-
fraudulent conduct was the ground
See EVIDENCE, 15.
1. The surplus of the proceeds of lands
of an infant sold by order of the
Orphans Court to pay debts of her
father, from whom she inherited
them, remains real estate, and at
her death must descend as such,
2. The descent of real estate in New
Jersey is governed by the rules of
the common law, so far as these
rules have not been changed by
collateral relatives, lineal descend-
ants shall represent their ancestor
ad infinitum, has not been altered,
either expressly or by implication,
by the statutes of New Jersey regu-
4. The degrees of consanguinity men-
tioned in the sixth section of the
statute of descents, must be ascer-
tained by the common law rule as
which, like the rule prohibiting
ascents, has never been changed.
The rule of the Civil law for com-
puting next of kin, has never been
adopted in this state, and it is not
the provision of this section. And
the equal parts” in this section
must be held to mean equal per
stirps, as the like words, " equal
portions,” in the statute of distri-
butions are settled to mean. Ib.