ment was made, plaintiffs were entitled to recover the value of this timber, but were not entitled to recover for that which was saw timber in 1872; and, further, that it was the duty of Patterson to notify Graham to remove the timber within a reasonable time if he desired to terminate his right, and, as no such notice had been given, Graham had a right to re-enter, and cut such timber as was fit for sawing at the date of the agreement, in 1872. The verdict was for plaintiffs for $157.32. As plaintiffs' evidence tended to show the timber was worth from $2 to $4 per thousand stumpage, the jury evidently found that only a small part of that taken was of a growth which had become large enough for sawing after the agreement was made, in 1872. From the judgment entered on the verdict, the plaintiffs appeal, assigning for error the instruction of the court in the general charge, and answers to points.

No time was expressly fixed in the agree ment, within which the timber was to be cut and removed; but the intention of the parties may be ascertained from other stipulations in the agreement, and facts dehors the agreement, such as the situation of the parties, and the circumstances surrounding them, at the time they entered into it. Patterson was a farmer. Graham was a lumber manufacturer and dealer in lumber. No provision is made as to payment of taxes by the purchaser on any interest in the land. Frovision is made for increased price should a railroad station be built within eight miles of the land either before Graham commenced sawing or before he had finished. Patterson grants privileges on his land to Graham necessary to carrying on the lumber manufacturing business. It is very clear that Patterson sold, and Graham bought, with the intention on part of both that the timber was to be manufactured into lumber; that is, it was not bought as land to be held indefinitely, or to be sold as land when it suited the purchaser. A purchaser may buy growing timber with no intention of manufacturing it into lumber, and hold it, just as he might buy and hold the land, if he so frame his contract. In such case he could remove it when he chose, and the vendor would have no right to quicken him by notice. But here the parties intended, not a sale and purchase of the timber, to be held as land, but a sale for purpose of manufacture within a reasonable time; not an immediate severance, but not one indefinitely remote; and this is evidenced by the agreement and their surroundings. That they so understood it is also shown by their subsequent conduct. In about 5 years Graham moved his sawmill upon the land, and commenced cutting and removing the timber. He continued manufacturing nearly 3 years, severing nearly all then suitable for lumber; then removed his mill, and for 11 years did not go back, or exercise a single act indicating any claim to the timber.

Undoubtedly, in a contract for the sale of timber, where the parties intend a severance, and no time is fixed within which it is to be removed, the law implies that the grantee will remove it within a reasonable time. And the grantor can quicken action by notice. If, after such notice, the grantee neglects for an unreasonable time to exercise his right, he loses it. The question, then, of what is a reasonable time, is not determined by the will of the grantor, or alone by the fact of notice, but by all the circumstances. The attention of the grantee having been directed to the right and claim of the grantor, the grantee is the one to move; and if he be indifferent and passive then, for an unreasonable time, the entire interest in the land revests in the grantor. What is a reasonable time for the exercise of the right, after notice, depends on circumstances, such as quantity of timber, character of it, facilities for manufacturing and marketing it; and, in case of dispute, this becomes a question for adjudication by the court. To this effect are Boults v. Mitchell, 15 Pa. St. 371; Shiffer v. Broadhead, 126 Pa. St. 260, 17 Atl. 592, and all the authorities. But the facts of this case are, in an essential particular, different from those in the cases cited. If, after the purchase in 1872, Graham had made no move to cut and take away the timber, and Patterson had notified him to remove it, and Graham had delayed in commencing work, or had been slow in finishing it, the question of "reasonable time" would have become one for determination, under the authorities, by the court, or by the court and jury, at the trial. But no such question arises here, for there will not be implied two reasonable distinct times, 11 years apart. The timber was sold to be removed within a reasonable time. Between 5 and 6 years after the sale, and 3 after the last payment, Graham moved his mill upon the land, and commenced manufacturing and removing the timber. He continued his operations for three years. Both parties, by their conduct, deemed this a reasonable time in which to commence operations, as it evidently was. Then Graham, after cutting, apparently, all worth cutting under his purchase, stopped, took away his mill, and nothing is heard of any claim by him for 11 years. In the meantime, there have grown into merchantable lumber trees which were valueless when he made his contract. These, with others that he had neglected to fell in his first operation, he cuts and removes, claiming the right to do so under his contract made 20 years before. At the date of this second entry, the grantor has been in his grave for several years; the land has passed to his children and their grantees. This second entry of Graham, under the undisputed facts, facts, was clearly a trespass. Within a reasonable time, in 1878, he entered upon the land, and exercised the right granted him under the agreement. At the

end of 3 years, by a distinct, unequivocal act, stopping operations and removing his mill, he relinquished to the grantor the full possession of his land; and this intention is emphasized by his silence for 11 years. Nothing less than distinct notice to the grantor, when he removed his mill, that he intended to return within a reasonable time to remove timber still standing, could have served to weaken the significance of this act, and it is doubtful if that would have been sufficient, in view of his long inaction. But no notice by the grantor to him, after such conduct, was required. He had a right to assume that Graham had taken all the timher that passed to him as the consideration of the contract, and that he had no further claim. After he is through with his present operation, he has as much right to return, when another 11 years' growth has made more timber valuable, as to return now after an abandonment 11 years ago. We think, on the undisputed facts, the plaintiffs were entitled to recover the value of the timber cut.

The measure of damages, in view of the circumstances, was correctly stated by the court. The plaintiffs' fourth point should have been affirmed without qualification, and the assignment of error in this particular is sustained. This, and the opinion herewith filed. necessarily disposes of the whole case. The judgment is reversed, and a venire de novo awarded.

WEYMAN et al. v. THOMPSON et al. (Court of Errors and Appeals of New Jersey. Aug. 6, 1894.)

EXECUTORS-JOINT LIABILITY.

The fact that administrators or executors have filed a joint final account, and that a certain balance has been adjudged by the orphans' court to be due thereon, is not per se conclusive as to their joint liability for the amount so settled.

(Syllabus by the Court.)

Appeal from court of chancery.

Action by Joseph Weyman and others against Jacob Wilson, Henry C. Thompson, and James Kemble. From a decree for plaintiffs, defendant Wilson appeals. Reversed and remanded.

Mark R. Sooy and Gilbert & Ackerson, for appellant. J. H. Gaskill, for respondents.

BEASLEY, C. J. One Christian Weyman, of Burlington county, in this state, made his will, in due form, whereby he appointed as his executors Henry C. Thompson, Jacob Wilson, the appellant, and James L. Kemble. The Henry C. Thompson thus appointed is described in these terms by the chancellor in his opinion in this case: He says he "was a lawyer of Philadelphia, who, when the will was made, and until the year 1890, was reputed to be of considerable wealth and of

undoubted integrity and ability. He was prominently connected with the management of two trust companies, and was also executor or trustee of several estates. His residence was in Philadelphia, but he had a summer home on the Delaware river, at Beverly. For several years before Mr. Weyman's death he was Mr. Weyman's legal adviser and business agent, attending to his investments and the collection of the income therefrom, and rendering such legal assistance as from time to time was required of him. When Mr. Weyman died all his securities were in Mr. Thompson's possession." It was this executor, thus correctly characterized who practically administered the affairs of the estate. He had the assets in his hands, and he made, with a few trifling exceptions,

necessary disbursements; his two coexutors standing by, and seeing the business thus transacted. Then followed a final settlement of the executorship, this account showing a balance in favor of the estate of $16,814.89. Subsequently it was discovered that Thompson, the acting executor, had squandered the assets, and was insolvent.

The chancellor found that the final account

just mentioned was the joint account of all the three executors, and on that account de crees that all the three are equally responsible for the balance adjudged by the orphans' court to be due to the estate. The rule upon which this decision was placed was extracted from an earlier case in chancery, and was thus stated, viz.: "That when executors exhibit for settlement a joint account, and when, by the decree of the orphans' court, such account is finally settled and allowed, the executors are jointly charged with the balance thus ascertained to be in their hands. The decree is in the nature of a judgment." Whether this rule, thus applied, be the legal rule upon this subject, is the only question that, for present purposes, will be considered and decided.

Although the principle thus referred to has for a number of years past been enforced in equity, this is the first occasion on which this court has been called upon to examine the legal propriety of that course of law. The result of that inquiry is that the rule that has been thus frequently asserted, and which was adopted in this case as the basis of the decree appealed from, has no place in the law of this state. The posture of this subject, as it appears from our Reports, is a most singular one, and, as it is deemed, is without a parallel in judicial annals. Upon examination it will be found to be this: In the year 1828 the rule under criticism came before Chancellor Williamson, the elder, for consideration and judgment. The position of the case before the court on that occasion was in this wise: The bill was filed by PhileInon Dunn and others, claiming certain. moneys under the will of Gershom Dunn, deceased. Phineas Randolph and Barzilie F. Randolph were the executors of the will in

question. The bill, among other things, charged that both of these executors, in a joint account before the orphans' court, exhibiting their receipts and disbursements, thereby showed that there was due the estate several thousand dollars. It appeared that the executor Phineas had been the acting exccutor, and that he had squandered the assets, and was not solvent. To this bill, Phineas did not appear, and a decree pro confesso was taken against him. The other executor, Barzilie, put in an answer which consisted solely of the defense that he had not received any of the assets of the estate, but that the same had been dealt with exclusively by his coexecutor, who was a man possessed of considerable property and of good repute. Under these circumstances the case came to argument, the only question being whether the fact that the answering executor had joined in the final account just mentioned, and that it had been passed by the orphans' court, was conclusive upon him. On the issue thus made the following is the decree made by the chancellor: "It appearing to the court that the decrees of the orphans' court of the county of Middlesex, the one made in the term of June, in the year of our Lord eighteen hundred and eight, and the other in the term of September, in the year of our Lord eighteen hundred and eleven, allowing and confirming the accounts of the said Barzilie F. Randolph and Phineas F. Randolph, executors of the last will and testament of Gershom Dunn, deceased, as aforesaid, are final decrees, made upon due notice and advertisement thereof given and published by the said executors as prescribed by law, and that the same were made on final settlement of the accounts of said executors, and that they ought to be and are final and conclusive between the parties, as well the complainants as the said defendants, as to the matters contained therein and established, and that the defendants, executors as aforesaid, ought to be jointly charged with the balance found in their hands by the lastmentioned decree of the said orphans' court." The decree then proceeds to order an account to be taken by a master, with this further direction: That "the said accounts be taken subject to the said decree of the said orphans' court, and the accounts of the said executors therein and thereby confirmed, and without in any wise varying or impeaching the same." It will be observed that the rule thus declared is the basis of the decree in the case now before this court. The executor Barzilie F. Randolph, whose liability was thus established by reason of his having joined with his coexecutor in a final account which had been approved by the orphans' court, being dissatisfied with the decision against him, removed his case to the court of errors and appeals, which tribunal, in the term of May, 1831, "adjudged that the decree of the court of chancery be reversed," etc.. "so far as respects the appellant, and that

the bill of complaint in the cause be dismissed, as to appellant, without costs.”

It is reasonable to suppose, a priori, that this decision of the paramount court would have settled, for the time, absolutely and incontestably, the rule of law under discussion; but such was not the fact, for 30 years afterwards the subject was considered by Chancellor Green, who, apparently without much consideration, declared that the legal rule which had been repudiated by this court did prevail in this state. The case in which this singular doctrine is announced is that of Laroe v. Douglass, 13 N. J. Eq. 310; and, as the whole view of the chancellor is comprised in a few sentences, it seems best to transcribe them. The opinion says: "The law is well settled in this state that when executors exhibit for settlement a joint account, and when, by the decree of the orphaus' court, such account is finally settled and allowed, the executors are jointly charged with the balance thus ascertained to be in their hands. The decree is in the nature of a judgment. By the terms of the statute it is conclusive upon all parties, none of whom will be permitted to set up any matter in avoidance of its operation. This doctrine was distinctly announced by Chancellor Williamson in Dunn v. Executors of Dunn; and, although that decree was reversed by the court of appeals, the same doctrine was subsequently held, and the principle upon which it rests distinctly enunciated, by Chancellor Vroom, in Fennimore v. Fennimore, 3 N. J. Eq. 296." And this is the only ground assigned, or in any way suggested, for the refusal of the inferior court to conform to the judgment of the superior court. The entire course of reasoning is stated with conciseness and perspicuity. It is that Chancellor Williamson, the elder, decided that a joint settlement of their final account by several executors made them per se jointly liable for the balance thus exhibited; that such decision had been overruled by the court of errors; that Chancellor Vroom had afterwards distinctly held the repudiated doctrine; and that, consequently, that doctrine was the law of this state. It seems impossible to believe that this course of reasoning will be satisfactory to any lawyer, and even it, such as it is, is founded on the mistaken premises that the old doctrine, after its overthrow in this court, was subsequently held in the case of Fennimore v. Fennimore, for by a reference to that decision it will be made perfectly clear that Chancellor Vroom, on that occasion, did not reassert the old doctrine, but "enunciated" it simply for the purpose of showing that the decree of Chancellor Williamson, already stated, had been "reversed in the court of appeals in the last resort, and upon that very point." My conclusion is that it is entirely plain that the decision of this court in the cases referred to established the rule that a joint final account and settlement by several executors, and its approval by the or

phans' cour, does not, by reason of its own inherent force, impose a joint liability for the balance thus struck and adjudged. I cannot assent to the contrary result reached in Laroe v. Douglass, and which has been on several occasions followed by successive chancellors, for even my great respect for the eminent personage who rendered that judgment cannot lead me so far astray as to induce in my mind the belief that a determination of this court can be reversed by the court of chancery. Consequently, as the proper legal rule was not applied to the case now present, the decree before us must be reversed, and the bill, so far as concerns this appellant, should be dimissed, but without costs.

Before parting from this subject, it may not be amiss for me to express my opinion that the legal rule above stated and enforced is the best one that can be adopted as a reg ulation of the business to which it relates.

1ts effect is to exclude an arbitrary, technical rule, having a tendency to ensnare the feet of unwary personal representatives, and to place each of such representatives on the footing of being responsible in the administration of estates for his own misfeasances and neglects. An experience has shown that the product of the opposite rules is hardship and injustice. In not a single instance in which an executor has been held liable for the mal versation of a coexecutor, by reason of his having joined in a final account with such wrongdoer, has it been made to appear that if the executors had exhibited separate accounts the beneficiaries of the estate would have been benefited. With respect to the suggestion that the parties in interest should not be driven "to the necessity of discovering," after final settlement, "in whose hands the funds are, or in what proportion the executors are liable for their loss," the answer is that such knowledge can always be had for the asking, for any executor that should refuse to give the requisite information would undoubtedly render himself liable for the misconduct of his coexecutor, who, in point of fact, was the actual custodian of the assets. There is no reason to believe, from experience in this field of business, that the case has ever appeared in which any beneficiary under a will has suffered either inconvenience or loss from the circumstance that the real depositary of the funds of the estate was unknown to him. Persons experienced in affairs of this nature will agree with me that the instance scarcely ever occurs in which the parties in interest are not aware, long before the final settlement of the administration, which of the executors has the moneys and securities of the estate in his hands. Nor is it perceived that there is any force whatever in the notion that the decree of the orphans' court adjudges in these settlements that the personal representatives are jointly liable for the balance struck. It will be remembered that these judgments are in the

nature of proceedings in rem, and they are only conclusive on matters directly adjudicated, and these matters are exclusively the receipts of the assets and the disbursements in behalf of the estate. The question which of the accountants has in actual custody such assets, and who therefore is accountable for them, is not before the court, and it is not, therefore, decided. Let the decree appealed from be reversed, and the case remitted, to be proceeded with in accordance with the rule as above expressed.

WORTHINGTON v. MOON et al. (Court of Chancery of New Jersey. Oct. 6, 1894.)

INJUNCTION AGAINST TRESPASS-WHEN LIES.

1. Equity will not interfere to prevent a trespass where the legal rights of the parties have not been settled, nor where it does not appear that the injury to the inheritance will be irreparable, nor that the defendant is insolvent, but will leave them to their remedy at law. 2. Equity will not actively aid in the enforcement of a penalty or a forefeiture. (Syllabus by the Court.)

Bill by Albanus L. Worthington against Sarah R. Moon and others for an injunction to restrain defendants from removing clay from complainant's land. Dismissal of bill advised.

E. R. Walker and G. D. W. Vroom, for complainant. Barton & Dawes, for defend

ants.

BIRD, V. C. On the 29th day of April, 1893, the defendants in this case conveyed to the complainant about 26 acres of land. In the deed was the following stipulation: “The said premises are also conveyed with the understanding that the said party of the first part may remain in possession of them until the first day of April, eighteen hundred and ninety-four, and during that time may dig clay thereon as they have been doing, and in the same field, and may remove the same for their own use, without charge therefor; and also that the said party of the first part may remove all unused posts and a certain child's swing from said premises on or before April first, eighteen hundred and ninety-four." The defendants remained in possession under this stipulation until the 1st day of April, 1894. During that period of time they excavated 500 or 600 tons of clay referred to, but did not remove it from the premises. The defendants claim that it was not removed because of an express suggestion to that effect from the complainant, because of the very unfavorable condition of the market. Within a short time after the defendants vacated the premises, they commenced carting the clay therefrom. To restrain this action upon the part of the defendants, the complainant filed his

The

bill, and asked for a perpetual injunction. The complainant insists that the right to dig and to remove clay was limited to the 1st day of April, 1894, and that all of the clay which had been mined and cast upon the bank was forfeited to the complainant. By the answer it is urged that every right to which the complainant is entitled he can maintain by an action at law. The only answer to this was that the removal of this clay was a destruction of the inheritance, and irreparable in its nature. I apprehend this would be so had not the clay been excavated and severed. In this respect it must be regarded as trees severed, or stones from the quarry. Evidently, this clay is personal property. claim, therefore, that the removal of it is. an irreparable injury to the inheritance, is unavailing. Without this ingredient this court is powerless to act. This doctrine, I think, has never been disputed when the question has been raised. It was so decided in Hart v. Leonard, 42 N. J. Eq. 416, 7 Atl. 865, in the court of errors and appeals, although, as I understand, the discussion was not opened upon the argument in that court, as it certainly was not alluded to in the slightest degree in the court below. Cornelius v. Post, 9 N. J. Eq. 199; De Veney v. Gallagher, 20 N. J. Eq. 33; Scudder v. Trenton Delaware Falls Co., 1 N. J. Eq. 694; Southmayd v. McLaughlin, 24 N. J. Eq. 181; High, Inj. § 673; Fulton v. Greacen, 36 N. J. Eq. 210; Kerr, Inj. 289. The principle upon which these cases stand is that the action complained of is nothing more than a naked trespass, involving no equitable considerations whatsoever, and fit subjects for the determination of a jury. This seems to have been equally well settled, as a reference to the above-cited cases will show. See, also, Kerlin v. West, 4 N. J. Eq. 449; West v. Walker, 3 N. J. Eq. 279. This case shows that the rule respecting the interference of equity is less rigid than it was anciently. Quackenbush v. Van Riper, Id. 350; 1 High, Inj. 699; Stevens v. Beekman, 1 Johns. Ch. 318. Equitable considerations often appear which justify the interference of a court of equity in behalf of the party who complains of the trespass. Prominent among these is the insolvency of the defendant trespasser. Wilson v. Hill, 46 N. J. Eq. 367, 19 Atl. 1097, and cases cited; West v. Walker, supra, 282; 1 High, Inj. 671, 674. But in this case there is not only no allegation of the insolvency of the defendants, but no proof whatever has been offered; hence the complainant is without relief in equity. And, in addition to this objection, the claim which he sets up amounts to a penalty or forfeiture, which courts of equity always refuse to enforce, except when the conditions are very plainly against the defendants. Mr. Bispham says: "It is well settled that a court of equity will not lend its aid actively to enforce a forfeiture." Section 181. In 2 Lead. Cas. Eq. 2048, the doctrine is thus

stated: "All the authorities concur that, when the case is such that a court of equity would not set aside the forfeiture, it would not intervene to enforce it, and will leave the parties to their legal rights and remedies." President, etc., of Atlas Bank v. President, etc., of Nahant Bank, 3 Metc. (Mass.) 582, 583; Livingston v. Tompkins, 4 Johns. Ch. 415; Baxter v. Lansing, 7 Paige, 350. In Meigs's Appeal, 62 Pa. St. 28, on page 35, this principle is clearly presented. In this case an effort was made by the authorities of the town of York to obtain the judg ment of the court against the United States.. restraining them from removing certain buildings which had been crected during the war. The court said: "It is not the province of a court of equity to enforce penalties or forfeitures." 1 Pom. Eq. Jur. § 459. In this case the defendants expended their labor in excavating 500 or 600 tons of clay, which, according to the complainant's bill and the testimony, are worth from $300 to $400. According to the complainant's insistment, this has all been forfeited; so much of the consideration which he was to give, and which the defendants were entitled to, he claims the right to retain. There seem, therefore, to be two well-settled principles, governing courts of equity, which stand in the way of the complainant's obtaining relief in this court, namely, the fact that the trespass complained of does not work irreparable injury to the inheritance, and that a penalty or forfeiture would be the result of a decree in his favor, which courts of equity are always disinclined to pronounce. I will advise that the bill be dismissed, with costs.

HERTER v. GOSS & EDSALL CO. (Supreme Court of New Jersey. June 13, 1894.) ACCEPTANCE OF ORDER-CONSIDERATION-CONDI

TIONS--LIABILITY OF ACCEPTOR-ESTOPPEL.

1. All that is necessary, as between the acceptor and the drawee of a draft or order, to constitute a good consideration for the acceptance, is that there should already be in existence a fund in the hands of the acceptor upon. which the draft is by the acceptance chargeable. If the fund be in existence at the time of the acceptance, the liability of the acceptor becomes at once fixed and absolute. If the acceptance be conditional, and by the condition chargeable on a fund not yet in existence, but to be created, then the liability on the acceptance only ensues when the condition is complied with or performed.

2. The condition may be contained within the terms of the draft or order so accepted, and, when this is so, the condition becomes a part of the acceptance, and liability occurs only upon the performance of the condition.

3. Where C. entered into written contract for the erection of a building for H., the own er, and C. gives an order on H. in favor of G., who was furnishing materials for the erec tion of the building, in payment or security for such materials, payable when the next payment on the contract becomes due, which order was accepted by H., in order that C. might