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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.

1. BOND.

that the J. C. and H. Horse Rail-

road Company shall have the joint
See LIMITATIONS, STATUTE OF, 6. use for their cars, of any track that
MORTGAGE, 10, 12, 17.

shall be laid in said streets by vir-
tue of such consent, and that if any

disagreement shall arise between

said two companies, as to the ex-

pense or manner of laying said

tracks, or the use thereof, such dis-
WILL, 17.

agreement shall be finally adjudi-
cated and settled by the common

council.” The 9th section pro-

vided that the ordinance should go

into effect as soon as the J. C. and
See MortgAGE, 13, 11.

B. Company should, under their
signature and seal, agree that they

would apply, at the next session of

the legislature, and obtain if possi-

ble an amendment to their charter,
1. When $1000 of the money which a so that in obtaining the consent of

mortgage was given to secure con- the common council to lay their
sisted in shares of a mining com- rails, they should be subject to
pany, accepted by the mortgagor, such conditions as said council by
on the representation of the mort ordinance may have imposed. Such
gagee that he had paid that much agreement was executed by the
for it, but without misrepresenta- i Bergen Company, December 14th.
tion or fraud by the mortgagee, the They accordingly obtained a sup-
$1000 will not be deducted from plement to their charter, which
the mortgage. Renton v. Maryott, was approved March 17th, 1860.

123 The 21 section of that supplement

provides : “ That the said 'J. C. and
2. The rule of careat emptor applies B. Railroad Company, in laying,

as well to the sale of stocks as of repairing, and maintaining their
chattels. The vendor can only be rails, and constructing their roads
made liable for misrepresentation in the streets of Jersey City, shall
or fraud.

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
The J. C. and H. Horse Railroad upon said company.” The com-

Company, and the J. C. and B., mon council passed an ordinance
Railroad Company, were author- January 10th, 1860, authorizing
ized by their charter, to build a the J. Č. and H. Company to lay a
railroad through certain streets of single track through certain streets.
Jersey City, to the ferry, subject to The 3d section of this ordinance
first obtaining the consent of the provides, that the Hoboken Com-
common council. By an ordinance.

pany shall have the joint use of the
passed December 13th, 1859, the tracks of the Bergen Company, so
the J. C. and B. Company wero far as may be necessary to run the
authorized to lay a single track in cars of the Hoboken Company to
certain streets. The 3d section of and from their tracks in certain
that ordinance imposed the follow- streets to Hudson street, upon their
ing condition : “ The consent to the agreement with the Bergen Com-
said company to lay said track in pany, in aocordance with section
Montgomery street to Newark avela three of the ordinance passed De-
nue, and in Newark avenue to cember 13th, 1859. Held-
Grove street, and in Grove, Grego. 1. That the condition of the 3d section
ry, and York streets, as stated in of the Bergen Company's ordinance
the first section, is upon condition' is, by virtue of their agreement

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 MORTGAGE, 15, 16, 18, 19.


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

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 nase by the other until a new agree ment could be made, or the common council should adjudicate the



See LICENSE, 1-3.


See MORTGAGE, 1, 2.





5. The common council had no power ('ONSTITUTIONALITY OF LAWS.

to declare a forfeiture by the Ho-
boken Company of their right to See JURISDICTION, 4.
use the Bergen Company's tracks,
for non-payment of the amount :
adjudicated. That right is yested,

('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

taken to hold in trust for the de-
fendant, who will be allowed to The cost of printing the case in the
redeem. But a court of equity will Court of Appeals cannot be included
not enforce such an agreement, by the successful party in his taxed
being merely in parol, unless the bill of costs. Decamp v. Crone, 544
fraud or mala fides be clearly and
fully shown. 'Walker v. Hili's Ex-





3. The inere non-performance of a
beneficial parol agreement, is not a

fraud which will induce a court of
equity to compel performance. 16. 1. A covenant in a deed, it being

expressly understood and agreed,

that the houses which may
4. A notice given under a contract

erected on Gilbert street, shall be
must be construed according to the set back ten feet from the southerly
intention of the contract. Though

line of said street,” is a covenant
the notice is in terms to revoke a

running with the land, and binds
contract, but the evident object of
it is to revoke only an authority

not only those who derive title
or license under the contract, the

from the covenantors, but also their
authority or license only will be

grantees. Winfield v. Henning, 188
thereby revoked. Green v. Wilson, 2. At law, the purchaser of one of


not enforce this covenant against
5. An agreement endorsed on a mining
lease, and stipulating "that the par-

the purchaser of another of them.

But, in equity, its observance will
ties of the second part shall, at the be enforced in his favor. І. .
expiration of two years from the
date hereof, pay unto the said W See Mortgage, 4, 5, 6.
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-
scribed premises in the within lease,', See ASSIGNMENT FOR BENEFIT OF
&c.," held to be an absolute agree-

ment by the lessees to purchase the Fraubs, STATUTE OF.
leased premises at the end of two

years. Suffern v. Butler, 410

6. This being the plain import of the

words of the contract taken in their
ordinary sense, the court is bound A defendant, ignorant of facts which
to presume, in the absence of any' entitle him to file a cross-bili, until
allegation of fraud or mistake, that the depositions of complainant's
such was the real meaning of the, witnesses reveal such facts, if he

Ib. files his cross-bill without unneces-

sary delay, cannot be deprived of
See EVIDENCE, 13, 14.

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-
S SALE OF LANDS FOR PAYMENT OF son in the transaction, but whose
DEBTS, 5, 6.

fraudulent conduct was the ground

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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
FRAID), 3.

her death must descend as such,
Fidler v. Higgins,


2. The descent of real estate in New

Jersey is governed by the rules of
A decree which refers to the cap piece

the common law, so far as these
of the dam, as fixing the extreme

rules have not been changed by
height to which the water may be


raised by the use of the gates when
shut, though more specific in its 3. The common law rule, that among
direction than is usual, is not ob-

collateral relatives, lineal descend-
jectionable for that reason. Carlisle

ants shall represent their ancestor
v. Cooper,


ad infinitum, has not been altered,

either expressly or by implication,

by the statutes of New Jersey regu-
lating descents.

MORTGAGE, 13, 17.

4. The degrees of consanguinity men-

tioned in the sixth section of the
PRACTICE, 1, 7, 8, 16.

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
See MorTGAGE, 4, 5, 6.

stirps, as the like words, " equal

portions,” in the statute of distri-

butions are settled to mean. Ib.

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