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This case came before this

court on an agreed statement of facts from

the superior court of Kennebec county. It in

The complaint does not set out that the rainwater leaders installed by the respondent were connected with any waste, drain, or soil pipe. The installation of rainwater leaders unconnected with any waste, drain, or soil pipe not being plumbing work within the meaning of the ordinance, no offense is charged in the complaint. Entry must be: Complaint dismissed. Respondent discharged.

(118 Me. 502)

JOHNSON v. WEARE.

volves the single question of the sufficiency of (Supreme Judicial Court of Maine. Feb. 9, a complaint before the Hallowell municipal court under an ordinance of that city relat

1920.)

ES FOR JURY AND NOT FOR COURT ON MOTION FOR NEW TRIAL.

ing to plumbing, adopted under section 112, c. NEW TRIAL 69-CREDIBILITY OF WITNESS19, R. S., which directs cities and towns having water and sewage systems to enact bylaws and ordinances regulating the installation, repair, and inspection of pipes, faucets, and other fixtures through which water or sewage is carried.

In accordance with this statute the city of Hallowell had enacted an ordinance prohibiting any plumbing work being done in that city without a plan of the number and kind of fixtures and the size of the waste and vent pipes being filed with and a permit being obtained of the local board of health.

The complaint sets forth in substance that the respondent did plumbing work at said Hallowell, to wit, placed rainwater leaders on a certain building without first filing such plan and obtaining such permit.

The respondent contends that the acts charged in the complaint are not plumbing work, within the meaning of the statute and ordinance. We think his contention must be sustained.

A plumber has been defined as one who fits dwellings and public buildings with tanks, pipes, traps, fittings, and fixtures for the conveyance of gas, water, and sewage. State v. Gardner, 58 Ohio St. 599, 51 N. E. 136, 41 L. R. A. 689, 65 Am. St. Rep. 785. Plumbing, therefore, as indicated by section 112 of chapter 19, R. S., by which this ordinance was authorized, may be defined as the installing, altering, or repairing of pipes, tanks, faucets, valves, and other fixtures through which gas, water, waste, or sewage is conducted and carried.

True, the ordinance requires rainwater leaders to be properly trapped, but this must be construed as applying only when they enter house drains, soil pipes, or other waste pipes; and it is only when they enter such waste-carrying pipes or drains that their installation and repair, or any part of it, can be regarded as plumbing within the meaning of the ordinance.

The credibility of witnesses is peculiarly a question for the jury, and not the court on

motion to set aside verdict.

York County.
On motion from Supreme Judicial Court,

Action by Frank Johnson against Joseph Weare. On motion by defendant to set aside verdict in favor of plaintiff. Motion overruled.

Argued before CORNISH, C. J., and HAN, SON, PHILBROOK, DUNN, MORRILL, and DEASY, JJ.

Ray P. Hanscom, of Ogunquib, for plain

tiff.

E. P. Spinney, of No. Berwick, for defendant.

PER CURIAM. Action to recover damages for personal injuries and injuries to plaintiff's motorcycle, received in a collision with defendant's automoble. The plaintiff has a verdict, which defendant moves to set aside.

As is usual in such cases, the plaintiff holds to one theory as to the manner in which the collision happened; the defendant, another. Each disclaims negligence on his own part, and imputes it to the other.

Just before the collision the defendant's automobile was stationary on the driver's left-hand side of the road, there about 24 feet wide between the car tracks on the westerly side thereof and the sidewalk on the easterly side; the automobile was westerly of the car tracks. The defendant started his automobile diagonally across the car tracks and road towards his right-hand side in front of the approaching motorcycle of the plaintiff.

As between the parties, the failure of the one or the other to measure up to the standard of due care in his conduct, under the cir

(91 N. J. Eq. 14)

(108 A.)

cumstances, and the credibility of the wit- jurisdiction of this court to determine the nesses as well, were peculiarly questions for validity of the chattel mortgage in aid of the jury; and, upon a careful examination her judgment lien. But in electing to sell of the evidence, the court cannot say that and purchase the chattel under her judgthe verdict was manifestly wrong. ment in disregard of the chattel mortgage, Motion overruled. complainant discharged her judgment lien on the chattel and acquired the legal title thereto. There accordingly exists at this time no judgment lien on this chattel in aid of which this court may exercise its acknowledged jurisdiction for that purpose; and, in the pending action of replevin brought by the chattel mortgagee for the recovery of the possession of the chattel, any defect of the mortgage arising from a failure to comply with statutory requirements is open to complainant to the same extent that such defects could have been considered by this court under a bill filed in aid of the judgment lien. In Jersey City Milling Co. v. Blackwell, 58 N. J. Eq. 122, 44 Atl. 153, it is pointed out that the jurisdiction of this court has never been extended to cases of that nature.

DEY V. MOODY et al. (No. 47/66.) (Court of Chancery of New Jersey. Sept. 20, 1919.)

1. CHATTEL MORTGAGES 172(1) — WHERE
JUDGMENT CREDITOR BOUGHT ON MORTGAGED
CHATTEL HE CANNOT RESTRAIN MORTGAGEE's
REPLEVIN SUIT IN ORDER TO HAVE VALIDITY
OF MORTGAGE DETERMINED IN EQUITY.

A judgment creditor of a chattel mortgagor with lien perfected on the mortgaged chattel may invoke the jurisdiction of equity to determine the validity of the chattel mortgage; but, where the judgment creditor has elected to sell the chattel subject to the mortgage and has bought it in, such equitable jurisdiction cannot be invoked to restrain the mortgagee's action of replevin without any showing that the law court will not be able to fully determine the rights of the parties.

2. FRAUDULENT CONVEYANCES

243-RE

TENTION OF BILL BY COURT OF EQUITY. Where a judgment creditor who bought in a mortgage chattel on execution sale filed bill in equity attacking the validity of the chattel mortgage which the mortgagee was seeking to enforce in an action to replevy the chattel the bill will not be dismissed, but will be retained so that, in case the law court is not able to do justice between the parties, equity may. 3. CHATTEL MORTGAGES

225(1)-PURCHASER OF MORTGAGED CHATTELS CANNOT ORDI

NARILY DISPUTE MORTGAGE LIEN.

Where a judgment creditor sold a mortgaged chattel under execution and bought it in at a necessarily reduced price, it would be inequitable in an ordinary case for a court of equity to set aside the mortgage, for that would enable the judgment creditor to retain the property free from any lien having necessarily procured it at a reduced price.

Bill by Laura M. Dey against Henrietta C. Moody and others. Bill retained pending

· determination of action at law.

[2] There is in the present bill, however, an averment that the chattel mortgage was fraudulently executed to defeat complainant's claim. That averment is made on information and belief and appears to be based upon the claim that no debt existed to support the mortgage. This court has heretofore entertained jurisdiction of bills filed by purchasers of land under judgment to set aside prior conveyances as fraudulent against the creditor under whom the purchaser claims, basing the relief on the jurisdiction against fraud. If in the present case there may exist elements of fraud adequate to afford complainant relief which are not available as a defense to the pending replevin action, it is not clear that this court would not be justified in assuming jurisdiction of the entire controversy; but I am presently unable to discern any want of power of the law court to ascertain in the action there pending whether the mortgage was in fact given to secure an existing indebtedness.

In these circumstances, I think the proper course is to retain the bill, and should it be hereafter found that the law court has been unable to entertain any substantial defense

which may have been presented at the trial of the pending replevin action, application for this suit to proceed to final hearing, and Lloyd C. Riddle, of Manasquan, for com- for intermediate relief, may be then made upplainant.

Wootton, Harcourt & Steelman, of Atlantic City, for defendants.

LEAMING, V. C. I entertain the view that the preliminary restraint sought by complainant must be denied.

on that ground.

Defendants herein have made several motions against specific parts of the bill. These motions will be held over pending the result of the replevin action.

[3] It is not to be understood from any suggestions here made that one who has ac[1] As a judgment creditor of defendant quired title to either chattels or land at his chattel mortgagor, with a lien perfected on own execution sale by electing to proceed to the mortgaged chattel, complainant was sale with knowledge of the existence of a clearly privileged to invoke the equitable prior outstanding mortgage made by the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

a wife in Pennsylvania at a time when she and her husband resided in that state can be made the basis of a decree of divorce in this state when neither of the parties had resided in this state for two years next preceding the commencement of the action.

Both parties now reside in this state, and personal service of process has been made in this state on the wife.

Section 6 of our Divorce Act (2 Comp. Stat. 1910, p. 2030) provides as follows:

from bed and board, jurisdiction may be ac"For purposes of divorce, either absolute or quired by personal service of process upon the defendant within this state, under the following conditions:

judgment debtor, instead of invoking equitable relief in aid of his judgment lien, can thereafter procure relief in this court against the outstanding mortgage in any case in which it is made to appear that by reason of the execution sale at which the existence of the outstanding claim was made known the purchaser has been enabled to buy at a price representing the value of the property sold less the amount of the outstanding claim, since the obvious effect of setting aside the mortgage in such circumstances would be to confirm a sale at an inadequate price and enable the purchaser to hold a property for which he had paid no adequate consideration to entitle him to claim it as a matter of equity. See Trusdell v. Dowden, 47 N. J. Eq. "(a) When, at the time the cause of action 396, 399, 20 Atl. 972; Scull v. Idler, 79 N. J. arose, either party was a bona fide resident of Eq. 466, 81 Atl. 746; Mississippi & M. R. Co. this state, and has continued so to be down to v. Cromwell, 91 U. S. 643, 23 L. Ed. 367. Nor the time of the commencement of the action, is it to be here understood that in such cir- except that no action for absolute divorce shall is it to be here understood that in such cir- be commenced for any cause other than adul cumstances any remedy could be afforded by tery, unless one of the parties has been for the this court through a proffer of the purchaser two years next preceding the commencement to surrender the title acquired by such pur- of the action a bona fide resident of this state. chaser and permit a resale under the judg- "(b) When, since the cause of action arose, ment. Since the very foundation of such a either party has become, and for at least two bill necessarily rests in a claim of legal title years next preceding the commencement of the in complainant which he seeks to have quiet-action has continued to be, a bona fide resied against an alleged outstanding fraudulent tion alleged was recognized in the jurisdiction dent of this state; provided the cause of acclaim, the procedure suggested appears to be in which such party resided at the time the measurably inconsistent with the fundamen- cause of action arose, as a ground for the same tal right claimed, even though the power of relief asked for in the action in this state." this court to order a resale should be conceded.

The meaning of this section seems unmis

No costs should be taxed herein against takable. either party.

(91 N. J. Eq. 23)

v.

THOMPSON V. THOMPSON. (No. 46/259.)
(Court of Chancery of New Jersey. Nov. 1,
1919.)

DIVORCE 62(6)-NO DIVORCE FOR ADULTERY
COMMITTED IN ANOTHER STATE WHERE NEI-
THER PARTY HAS BEEN RESIDENT OF SUCH
STATE FOR TWO YEARS PRECEDING ACTION.

Under Divorce Act, § 6, subd. "b," adultery committed by wife in another state at a time when husband and wife were residents of such state cannot be made the basis of a divorce decree in New Jersey, when neither of the parties had resided in latter state for two years next preceding the commencement of the action, notwithstanding subdivision "a"; later subdivision being limited to cases in which one of the parties was a bona fide resident of the state at the time the cause of action arose.

Petition for divorce by Ralph E. Thompson against Elizabeth Thompson. On petitioner's exceptions to master's report. Petition dismissed.

C. V. D. Joline, of Camden, for petitioner. LEAMING, V. C. The single inquiry here presented is whether adultery committed by

Subdivision (a) of the section is by its terms limited to cases in which one of the parties was a bona fide resident of this state at the time the cause of action arose; ac

cordingly the provisions of that subdivision cannot be applied to the case now under consideration, since neither of the parties were residents of this state when the adultery was committed.

Subdivision (b) specifically applies to all cases where, since the cause of action arose, either party has become a resident of this state. In such circumstances two years' bona fide residence in this state next preceding the commencement of the action is required to confer jurisdiction. The instant case is of that nature, and is accordingly controlled by the provisions of subdivision (b).

The contention adverse to the conclusions above stated is based upon the use made of the words "other than adultery" in subdivision (a); the argument is that those words, as used, wholly remove cases of adultery from the operation of the two years' residence provisions. That argument is only partially sound. Had petitioner been a resident of this state when his wife committed adultery in Pennsylvania and continued to reside in this state until the commencement of his action, his case would have fallen

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(108 A.)

within the provisions of subdivision (a), and two years' residence would not have been required, since adultery is excluded from the operation of the concluding provisions of that subdivision.

I will advise a decree dismissing the petition.

(93 N. J. Law, 394)

OPPICCI v. ERIE R. CO. (No. 54.) (Court of Errors and Appeals of New Jersey. Nov. 17, 1919.)

1. APPEAL AND ERROR

858-JURISDICTION OF SUPREME COURT ON APPEAL FROM DIS

TRICT COURT CONFINED TO ERROR OF LAW.

On appeal from a district court, only its determination or direction in point of law, or'on the admission or rejection of evidence, was open in the Supreme Court, which could not affirm defendant's liability and reverse judgment as to damages unless there was legal error as to the rule of damages.

2. APPEAL AND ERROR 858-TREATING APPEAL FROM DISTRICT COURT AS IF CASE WERE

ON RULE TO SHOW CAUSE IMPROPER.

On appeal from the district court, the Supreme Court's holding that the evidence was too uncertain and inadequate on which to base verdict for plaintiff treated the case as if it were before the court on a rule to show cause, instead of a statutory appeal, and was beyond the court's power.

3. APPEAL AND ERROR

1178(6)-REVERSAL ON ACCOUNT OF MERE UNCERTAINTY OF EVIDENCE AS FOR EXCESSIVE OR INADEQUATE

DAMAGES IMPROPER.

On appeal from the district court, the Supreme Court erred, on account of the inadequacy of evidence to support verdict, in remitting the record for new trial as to the question of damages only, apparently on the theory that such a judgment was permitted by rule 132 of the Supreme Court, which applies only to cases where the damages are excessive or inadequate. 4. APPEAL AND ERROR

1074(3)-No REVERSAL FOR IRREGULARITY IN REVERSAL BY INTERMEDIATE COURT, EXCEPT FOR ERROR IN

JURIOUS TO APPEALING PARTY.

Where the Supreme Court, on defendant's appeal from the district court's judgment for plaintiff, affirmed defendant's liability and reversed the judgment as to damages, but plaintiff did not appeal, and defendant has been careful to limit its causes of appeal from the Supreme Court to errors harmful to it, the Court of Errors and Appeals cannot reverse the Supreme Court, except on discovery of some error injurious to defendant.

Appeal from Supreme Court.

Action by Joseph Oppicci against the Erie Railroad Company. From judgment for plaintiff, defendant appealed to the Supreme Court, which reversed, and plaintiff appeals. Affirmed.

George S. Hobart and Edward A. Markley, both of Jersey City, for appellant. Peter J. McGinnis, of Paterson, for respondent.

SWAYZE, J. [1-4] This was an appeal from the Paterson district court. Only the determination or direction of the district court in point of law or upon the admission or rejection of evidence was open in the Supreme Court. C. S. 2016, pl. 213a. Pratt v. Atl. 492; Lavin v. Public Service Ry. Co., 77 Union National Bank, 81 N. J. Law, 588, 80 N. J. Law, 217, 71 Atl. 58. It was not open to the Supreme Court to affirm, as it did, the liability of the defendant and reverse the judgment of the district court as to damages unless there was legal error as to the rule of damage. There was no such error. There was evidence as to the amount of damages. What the Supreme Court held was that this evidence was too uncertain and inadequate on which to base the verdict of the jury. This procedure treated the case as if it were before the court on a rule to show cause instead of a statutory appeal. It was beyond the power conferred on the court. Moreover, the court entered a judgment remitting the record for a new trial, as to the question of damages only, apparently on the theory that such a judgment was permitted by rule 132. This was error. The rule applies only to cases where the damages are excessive or inadequate. No such case is before us; it is only the evidence on the question of damages, not the amount, that was held by the Supreme Court to be inadequate. The error would require a reversal if it were properly presented. It is not. The plaintiff who was injured by the reversal of the district court did not appeal, and seems to have been content with the affirmance of the defendant's liability. The defendant was careful to limit his causes of appeal to errors harmful to him. We cannot therefore reverse the Supreme Court unless we find some error injurious to the defendant. The error in remitting to the district court for a new trial as to damages is not injurious to the defendant, and is not complained of. As to that part of the judgment which affirms defendant's liability, we agree with the Supreme Court, and find no error in this respect. The result is that the judgment must be affirmed as the pleadings on appeal stand. When the record is remitted, the Supreme Court, we assume, will correct its judgment in accordance with the views we have expressed, and affirm the judgment of the district court generally. The result will be that the question of the constitutionality of ordering a new trial as to damages alone will not then be presented, and we ought not to decide it now. Let the judgment be affirmed, with costs.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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Where a tenant's bill to reform the lease on the ground of mistake in reducing to writing was not filed as promptly as it should have been, but the delay occasioned no loss of evidence, and the reasons assigned have persuasive force, injunctive relief against defendant landlord's ejectment action, based on the tenant's breach of the covenant incorporated in the written lease by mistake, should not be denied the tenant on account of laches.

Suit by Joseph Euster against Adolph
Mewmeyer. Decree for complainant.
Harry C. Kramer and Louis B. Le Duc,
both of Camden, for complainant.
Joseph Beck Tyler, of Camden, for defend-

ant.

LEAMING, V. C. Complainant is a tenant of defendant under a lease which by its terms entitles complainant to occupy the demised premises until June 20, 1921, at a specified rental. The lease contains a covenant that the tenant shall not sublet any part of the demised premises, and also a clause bestowing upon the landlord a right of possession in the event of a breach by the tenant of any covenant contained in the lease. The tenant, complainant herein, has sublet a part of the premises for use as a garage, and the landlord, defendant herein, has brought an action of ejectment against complainant, based upon the breach of the covenant referred to.

Complainant's bill seeks a reformation of the lease. The bill is based upon the claim that the agreement actually made was to the effect that complainant should be privileged to sublet the garage, and that in reducing the agreement to the form of a written lease that exception to the covenant against subletting was omitted through mistake. Restraint of the action at law is now sought until a decree of reformation can be procured at final hearing.

It is clear that, if the matters set forth in the bill and verified by the appended affidavits are true, complainant is entitled to the relief sought. But at the return of an order

to show cause affidavits have been filed on behalf of defendant denying that the mistake occurred upon which complainant relies. Defendant accordingly invokes the third rule defined in Citizens' Coach Co. v. Camden Horse Railroad Co., 29 N. J. Eq. 299, in opposition to restraint pendente lite.

[1] I am convinced that the trial of the pending action of ejectment should be restrained until a final hearing in this suit can be had. The proofs annexed to complainant's bill to the effect that the agreement which was actually made, and which was intended to be accurately reduced to Writing in the form of a lease, included the privilege of complainant to sublet the garage, are strong and forceful in detail and in corroborating circumstances. The demised property, other than the garage, is occupied by complainant as his residence and as a store in which he conducts his regular business. To refuse the restraint now sought would utterly destroy the subject-matter of the controversy, since no adequate defense can be made to the pending action at law, unless and until a decree of reformation may be procured, and should restraint be now refused the resulting injury to complainant will be irreparable in its nature; moreover, the possibility of loss to defendant herein by reason of delay in the trial of the pending action in the law court can be prevented by appropriate terms imposed upon complainant as a condition to the restraint sought.

[2] Defendant also urges that relief should be denied complainant by reason of laches on his part. Complainant's bill was not filed as promptly as it should have been; but the delay has occasioned no loss of evidence, and the reasons assigned as the cause of delay are not without persuasive force.

I will advise restraint, but on condition that complainant promptly execute a bond, with sureties approved by a special master, conditioned pursuant to rule 206 of this court (100 Atl. xxvii), and also pay to defendant the costs of the term at which the ejectment suit was noticed, pursuant to the requirements of rule 205. The bond shall be further conditioned that complainant promptly pay any rent that may be now due and all further rent that may fall due under the terms of the lease until the termination of this suit and the termination of the pending action at law. The order for restraint shall further provide that the acceptance of the order by complainant shall be operative as a waiver of any claim on his part that the acceptance of rent by defendant is in any way operative as a waiver of defendant's claim that the term was ended by the breach of

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