ASSIGNMENT FOR BENEFIT OF!

CREDITORS.

AWARD.

1. The question whether an award is excessive or unjust cannot be considered in a court of equity, nor its merits reviewed. But where the alleged errors are of a sort sufficient to set aside the award, this court will regard them, so that a determination apparently excessive may be reviewed. W. J. R. Co. v. Thomas, 205

1. By a general assignment for the benefit of creditors, the equity of redemption in mortgaged premises vests in the assignee, whether the mortgage deed is absolute or conditional on its face. But property which the debtor has fraudulently conveyed to hinder and delay creditors, which he could not convey to strangers, does not pass by such assignment. Van Keuren v. Me- 2. This court has jurisdiction over Laughlin,

163

2. Money due at the time of such as
signment, to the assignor from pur-
chaser to whom he had assigned his,
property to defraud creditors, will
belong to the assignee. And if the 3.
purchaser, after the assignment,
pay it to the assignor, it is no bar
to the right of the assignee; the
payment is in his own wrong, Ib..

3. But a court of equity will not, in a decree which declares such sale| void as against the complainant as a judgment creditor, direct the pur chaser to pay or account for the proceeds to the assignee. Ib

awards, but it will not exercise it in case of awards, which, by agreement, are made rules of court. The court in which the rule is entered has that power and must exercise it. Ib.

No court will review and corre‹ t an award; the only power is to ɛet it aside for corruption, or misconduct in the arbitrators, or a plain mistake of law or fact. And if arbitrators decide against law, not by mistake, but of purpose, with the intention of making a just award, when the strict principles of law seem to them to work injustice, their award will not be disturbed.

Ib.

4. If the arbitrators proceed without
the knowledge of either party, and
without giving him an opportunity
to be heard, or if they decide with
out any evidence, it is such mis-
award.
conduct as will set aside their

4. When a creditor of the debtor making an assignment for the benefit of creditors, who has not exhibited his claim to the assignee, discovers that lands of the debtor not sold or administered by the assignee, had been conveyed by way of mortgage only, though by deed absolute on its face, such 5. When a new arbitrator is chosen

Ib.

by the original arbitrators, either party has the right to adduce additional testimony and additional arguments. And when either party has not only not waived such right, but before the award was made, presented his protest to the arbitrators as soon as could reasonably be done, and served an injunction upon them to restrain them from proceeding, and the arbitrators shut him out from this right, and make their award in the face of the pro test and injunction, it is such misconduct as will set aside the award.

Ib.

with the Hoboken Company, and of the 2d 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 disagreement 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 agreement, as to the terms of use of tracks, through certain streets (pursuant to notice, in accordance with the terms of the agreement) did not affect the right of joint use of the Bergen Company's tracks, or entitle the Bergen Company to enjoin the use by the other until a new agreement could be made, or the common council should adjudicate the|

matter.

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. 550

See LICENSE, 1.
RAILROAD COMPANY.

CHATTEL MORTGAGE.

See MORTGAGE, 15, 16, 18, 19.

CHOSE IN ACTION.

See JUDGMENT CREDITOR, 1.

CONSENT.

See LICENSE, 1-3.

CONSIDERATION.

See MORTGAGE, 1, 2.
PLEADING, 1-3.

CONSTITUTIONAL COURT.

See JURISDICTION, 5, 6.

See JURISDICTION, 4.

CONTRACT.

5. The common council had no power CONSTITUTIONALITY OF LAWS. to declare a forfeiture by the Hoboken Company of their right to use the Bergen Company's tracks, for non-payment of the amount adjudicated. That right is vested, and no authority was given to the council to forfeit for non-payment. 6. The words upon their agreement,' &c., in the 3d section of the ordi-, nance of January 10th, 1860, do' not qualify the right of the Hoboken Company; that right became fixed by the ordinance of Decem-' ber 13th, 1859.

7. The true intention of the said ordinance of January 10th, 1860, was only to subject the joint use to just such condition as was contained in the 3d section of the Bergen Company's ordinance.

S. The tracks of the Bergen Company

1. A mistake as to facts or the contents of a contract for the sale of land, might, in some cases, excuse or modify the performance, but the vendor must perform it according to its legal effect, unless he is misled by the fault of the other party. Zane v. Cawley, 130

2.

If a plaintiff in execution, make an agreement with the defendant that he will buy the property at sheriff's sale and hold it for his benefit, and takes advantage of such agreement to buy in the

pro

subject to the joint use by the Ho-perty at prices lower than he other

wise could have done, he will be
taken to hold in trust for the de-l

COSTS.

fendant, who will be allowed to The cost of printing the case in the

redeem. But a court of equity will
not enforce such an agreement,
being merely in parol, unless the
fraud or mala fides be clearly and
fully shown. Walker v. Hill's Ex-
ecutors,

191

3. The mere non-performance of a
beneficial parol agreement, is not a
fraud which will induce a court of

equity to compel performance. Ib. 1.

Court of Appeals cannot be included
by the successful party in his taxed
bill of costs. Decamp v. Crane, 544

See MORTGAGE, 13.
PARTITION, 5.

COVENANT.

A covenant in a deed, "it being
expressly understood and agreed,
that the houses which may be
erected on Gilbert street, shall be
set back ten feet from the southerly
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

4. A notice given under a contract
must be construed according to the
intention of the contract. Though
the notice is in terms to revoke a
contract, but the evident object of
it is to revoke only an authority'
or license under the contract, the
authority or license only will be
thereby revoked. Green v. Wilson, 2. At law, the purchaser of one of

211

5. An agreement endorsed on a mining
lease, and stipulating "that the par-
ties of the second part shall, at the
expiration of two years from the
date hereof, pay unto the said W See
and D the sum of $10,000 in lieu
of the ten per cent. agreed upon in
said lease, then the said W and D.
shall make a good and lawful deed
of conveyance for the above de-

these lots from the grantee could
not enforce this covenant against
the purchaser of another of them.
But, in equity, its observance will
be enforced in his favor.
Ib.

MORTGAGE, 4, 5, 6.

SPECIFIC PERFORMANCE, 22, 27.

CREDITOR.

scribed premises in the within lease, See ASSIGNMENt for Benefit of

&c.," held to be an absolute agree-

CREDITORS.

FRAUDS, STATUTE OF.

MORTGAGE, 7, 8.

CROSS-BILL.

ordinary sense, the court is bound A defendant, ignorant of facts which

to presume, in the absence of any
allegation of fraud or mistake, that'
such was the real meaning of the
parties.

See EVIDENCE, 13, 14.

Ib.

SPECIFIC PERFORMANCE, passim.

CONTRIBUTION.

S SALE OF LANDS FOR PAYMENT OF
DEBTS, 5, 6.

entitle him to file a cross-bill, until
the depositions of complainant's
witnesses reveal such facts, if he
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
willfully kept in ignorance of them
by a person acting in concert with
the complainant, and who had been
recommended by complainant to
the defendant as a trustworthy per-
son in the transaction, but whose
fraudulent conduct was the ground

A decree which refers to the cap piece
of the dam, as fixing the extreme
height to which the water may be
raised by the use of the gates when
shut, though more specific in its 3.
direction than is usual, is not ob-
jectionable for that reason. Carlisle
v. Cooper,
576

See ASSIGNMENT FOR BENEFIT OF
CREDITORS, 3.
MORTGAGE, 13, 17.
NUISANCE, 1.
PLEADING, 9.
PRACTICE, 1, 7, 8, 16.
PRESCRIPTION, 3.

DEED.

See EQUITY OF REDEMPTION.
SHERIFF'S SALE.

DEFENSE.

See MORTGAGE, 4, 5, 6.

NUISANCE, 1.
PRACTICE, 15.

statute.

Ib.

The common law rule, that among

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-
Ib.
lating descents.

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
to descent of real estate, allowing
representation among collaterals,
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
required by any implication from
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.

64