dence of membership, and the certificate is only secondary, as between the corporation and its members. Thus for the purpose of exercising personal rights of membership, such as voting, etc., the corporation may require the transfer on the books, and in the payment of dividends without notice of an adverse claim it is undoubtedly protected by payment to the holder of record on the books of the company. 2 Thomps. Corp. § 2387. Does the same principle apply to the final distribution of assets of a corporation as to the payment of the dividends? If it does, then the association making distribution to the shareholder of record, without notice of any intervening claim, is discharged from liability for further payment on those shares, even if the certificate be not surrendered. In my judgment the same rule is applicable as between the corporation and its members on the final distribution of assets as on the payment of dividends, and a payment of the share to the shareholder of record, at the time of distribution, made without notice of a previous assignment, is a valid payment as against a holder of the certificate by assignment, who has not applied for a trans fer on the books. This payment or distribution was not, however, a payment in cash to the shareholder of record, but a payment or distribution by a nonnegotiable certificate of indebtedness issued to the assignee of the shareholder. The association had notice of this assignment, and the certificate was issued as to the assignee. It must therefore be considered as if issued to the shareholder himself, and the designation as assignee, which was merely descriptive or convenient evidence of the character in which Valentine held it, was not, I think, essential to its issue to him, claiming it as assignee. The issue to him personally (being in fact the assignee of Briegs) was sufficient, and the omission of the designation did not make the issue, as between the corporation and Briegs, its stockholder, or those claiming under him, an issue to a person not the assign of Briegs.

fore the termination of the original charter, | production of the original certificate is necesand that the bank has been ever since up to sary for a valid distribution in order to prothe time of its failure a de facto corporation, tect the corporation. For many purposes the making loans and discounts, and transacting books of the corporation are the primary evia general banking business, the assignments should not be declared invalid because of supposed legal nonexistence of the corporation during the loans secured by the assignments. The real question on the merits of the case as to the Louis Briegs shares is whether the payment of the original shares on their maturity by the issue and delivery of the certificate of matured shares to Valentine, claiming them as assignee of Briegs, and which have since been paid to a bona fide holder, is valid or effective as against the complainant claiming title to the original shares under an assignment made nearly five years prior to the payment, but of which the association had no notice, other than the notice to Valentine, its treasurer at the time of the issue of the new certificate, who at the time had the certificate and assignment to the bank in his possession or control as cashier of the bank and as collateral for its loans. It is urged by complainant's counsel in his brief that notice to or knowledge of Valentine, then the treasurer of the association, was notice to the association of the bank's claim, but, as the case clearly shows that Valentine in having the certificate for matured shares contemplated an independent fraud on the bank, either for his own benefit or that of the estate of which he was assignee, his knowledge of the bank's rights is not to be 'imputed to the association of which he was treasurer. Camden Safe Deposit Co. v. Lord, 67 N. J. Eq. 489, 492, 58 Atl. 607 (Bergen, V. C., 1904); 2 Pom. Eq. Jurs. § 675. The issue of the matured shares must therefore be taken to have been without notice of the bank's rights, and the precise question is: Was the issue by the association to Valentine without the production of the original shares valid? Had the issue been of shares of a corporation intended to continue the membership and rights of a shareholder, the general rule would seem to be that the issue of such certificate without requiring the delivery of the one in lieu of which it is issued is at the risk of the corporation. Cook, Corporations (6th Ed.) §§ 402, 439. This issue of matured shares was not, however, a certificate evidencing or intended to evidence continued or existing rights as a member or shareholder, but was a satisfaction or settlement of the final rights of the shareholder on distribution of the assets or fund in which he was entitled to share, and the present inquiry is therefore further narrowed; and is whether in reference to a transaction having the character of the final distribution by the corporation itself to its members of their share of the assets the distribution may be made to the member appearing to be such according to the records or books of the company (or his assigns under notice of assign

But, in reference to this payment, the further question arises as to the effect of its having been made by the issue to Valentine of a nonnegotiable certificate, and the status of the case by reason of this fact is one of more difficulty. This certificate being nonnegotiable in the hands of Valentine or his assigns was subject in the hands of any holder to the defense that it was procured by Valentine's fraudulent suppression of the previous assignment to the bank, and, had notice been given to the association of the bank's claim previous to its payment of the matured certificates to a bona fide holder, such subsequent payment would have been at

Complainant's notice of its claim under the assignments does not appear to have been given until March 8, 1901, the date alleged in the bill and admitted by the answer. And it further appears by a letter of the complainant, as receiver, to the Amboy Bank, dated November 9, 1899, that the receiver (under a judgment and execution against Valentine) had levied on Valentine's interest in these matured shares subject to the Amboy Bank's claim and in other shares, and that the receiver consented to a sale of this and other collateral by the Amboy Bank to pay its loans to Valentine, notwithstanding the levy, and requested that the surplus only be held. The Amboy Bank made the sale, purchased the stock, and then brought suit against the association for the payment, and received payment on the shares.

dence, the Amboy National Bank sued upon | amount due July 1, 1896, on shares, without its claim under the certificates in the year regard to these certificates and adversely to 1900, and, after judgment against it, the the holder of the certificate actually issued. association in February, 1901, paid the claim But, as between the parties to this suit, arising under the certificates without notice I take it to be settled as the law of this of any claim of the Middlesex County Bank case by the decision in the Campbell suit to the payment of the shares for which the that the nature of the complainant's right matured shares were given. is that of an equitable interest in a fund held in trust by the association for distribution among the holders of shares in a matured series. The statute of limitations is not applicable to such trusts. In Condit v. Bigalow, 64 N. J. Eq. 504, 514, 54 Atl. 160, and Mills v. Hendershot, 70 N. J. Eq. 258, 267, 62 Atl. 542 (1905), the New Jersey cases on the application of the statute in equity are considered. But, independent of the statute, delay on the part of the Middlesex County Bank, and of the receiver, in giving notice of the assignment of the shares, or of their claim under it, may be a bar to the suit, especially when, as in this case, the delay has resulted in, or contributed to, the change in the situation by payment to another. The bank and the receiver delayed notice of their claim until nearly six years after the maturity of the shares, and until after the matured shares had been sold by a bona fide pledgee for the payment of its debt with the consent of the receiver (given perhaps in ignorance of his rights) and until after the shares had been paid by the association to such pledgee as such purchaser. In Bank of Commerce Appeal, 73 Pa. 59, it was held that the officers of a bank who had as its trustees distributed its assets among its stockholders on dissolution, and had paid his share to one of the stockholders of record, without notice of his assignment of his shares, were not liable to a previous assignee of the shares who had not had the same transferred on the books and had given no notice. It was held that, in the absence of such notice, the payment to the shareholder of record, without requiring production of the certificate, was not an act of negligence on the part of the officers, making them liable. The claim of complainant as assignee of the Louis Briegs shares must be held to be barred in equity.

It does not appear that this consent to the sale was made with knowledge on the part of the receiver that the shares or any of them were issued to Valentine by the association to pay and satisfy the shares held by the receiver, and, in the absence of such knowledge, the consent may not operate as a waiver of the receiver's claim, or an estoppel against asserting it, but the consent is important as bearing on the receiver's delay in making his present claim and the effect of it on his right to relief in equity. The question, therefore, is whether the certificate for matured shares, having been issued in 1896 and paid in 1901 under these circumstances to a bona fide holder after suit without notice to the association of the claim on the part of the bank which arose in 1891 by reason of the assignment of the original shares, can now be declared valid. The bank's right to the share on distribution arose in July, 1896, on the maturity of the shares, and it was then entitled to demand the amounts coming to the Briegs. There was no provision in the charter or by-laws for the issuing of the matured share certificates, and the taking of these by a shareholder was optional purely. If the shareholder be considered as a creditor of the association, and not a cestui que trust in a trust fund held for distribution, complainant's right of action for the debt to Briegs due from the Association accrued on the maturity of the shares, July 1, 1896. The bill in the cause was filed in October, 1902, more than six years after this cause of action arose. The time fixed in the certificates issued for the payment (January 1, 1907) fixed the period of suit for those who received the certificates, but for those only,

As to the Rosa Briegs shares, the defendant's status is altogether different, and there is no equitable reason for depriving complainant of his rights under the original assignments as collateral as well as under the Rosa Briegs assignment of 1901. The payment to Rosa Briegs of the amount due on four of these shares, if made at all, was made with full notice of complainant's claim, and the payment of the value of one share to Valentine in 1907 was invalid. He claimed not under, but adversely to, her, and the payment was at the risk of the association, which must look to its indemnity.

The complainant is entitled to a decree based on its rights to the shares of Rosa Briegs, and to the declared value, which is

Cunningham Case is effective in this case | hensible, at least since the couple parted. to establish the amount of recovery to which the decree is to be limited, and no further accounting is either necessary or proper.

BRADBURY v. BRADBURY. (Court of Chancery of New Jersey. Sept. 28, 1909.)

1. HUSBAND AND WIFE (§ 288*)-BILL FOR MAINTENANCE-DEFENSES.

Under our statute (Act May 7, 1907 [P. L. p. 482, § 26]) the only "justifiable cause" for abandoning or separating from a wife and refusing or neglecting to maintain and provide for her is a matrimonial offense on her part which

would entitle the husband to a divorce.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 1077; Dec. Dig. § 288.*] 2. HUSBAND AND WIFE (§ 296*)-BILL FOR SEPARATE MAINTENANCE-PLEADING.

To be available, such cause must be pleaded as well as proved.

Ed. Note.-For other cases, see Husband and Wife, Dec. Dig. § 296.*]

(Syllabus by the Court.)

Her husband's course of behavior toward her has doubtless been responsible for much of her conduct. The defendant neither pleads nor proves an excuse for desertion and nonsupport. All that the husband alleges against the wife did not afford him a justifiable cause for abandoning and refusing to support her. In Boyce v. Boyce, 23 N. J. Eq. 337, it was held that a man is not justified in deserting his wife because she is extravagant or lazy, or swears, or uses coarse language, or is sickly, fretful, or of violent temper, or because she wreaks her temper or showers her profane language upon him and makes his life uncomfortable; that these are not crimes, but infirmities and defects, which, in consideration of law, a husband undertakes to put up with when he marries his wife for better or for worse. Nor is neglecting her duties, or spending most of her time gossiping with neighbors, or receiving attentions from men, or even going to saloons evenings with men any crime or legal excuse for a husband's abandonment and nonsupport of his wife. While associating with men, especially in saloons, may be an excuse for a husband separating himself from a wife guilty of such

Bill by Laura Bradbury against Frederic Bradbury for alimony. Decree for complainant. Bird & Blackman, for complainant. John conduct, it is not a legal excuse for nonsupA. Montgomery, for defendant.

port of the wife by the husband while the marriage relation between them exists, or at least until cause for divorce against the wife is proved in an alimony or divorce suit. In those cases, as is well known, the husband is almost invariably compelled to support the wife pending the suit, even though her guilt be made quite apparent upon the proofs submitted on the preliminary application. It should be remarked that the proof concerning the complainant going to saloons with men showed that to have been her course of conduct after her husband had abandoned her, and it appeared that she was usually one of a party composed of several people. Still her conduct in this regard was unjustifiable and inexcusable, and guilt may lurk behind it. However, adultery is not charged, and whether or not the proof justifies its inference is not decided. The rule is well established that the court cannot notice matter, however clearly proved, of which there is no allegation in the pleadings. Vansciver v. Bryan, 13 N. J. Eq. 434, 436. The complainant was not called upon to meet a charge of adultery, but one of indiscreet and unwomanly conduct.

WALKER, V. C. This is a bill for maintenance under the statute, and alleges that the defendant abandoned the complainant without justifiable cause, and neglects and refuses to support her and their children. The answer, after denying the abandonment, charges that the complainant removed from their home, taking their two children with her, at the time when the defendant was sick in a hospital. The answer also charges the wife with neglect of her duties at home, and with spending her time gossiping with neighbors and receiving the attention of men; also with "running around" to saloons in the evening with men; that the defendant sent her word that he was willing to support his children, but would not do so while they remained with her. The answer does not charge her with committing adultery. Before this suit was brought, the wife complained of the defendant's nonsupport to the overseer of the poor, and the overseer thereupon caused the defendant to pay her $3 per week, which he paid for a while, and then ceased to pay. Afterwards the husband possessed himself of the children; one being The law is, as I understand it, that, to sent to him by the mother, who was unable justify an abandonment of a wife and also to support it, the other being procured by refusal to support her, the husband must stealth. The proofs show that the husband show the wife to have been guilty of a mattreated his wife very badly, assaulting her rimonial offense such as will entitle him to many times, cursing and swearing at her, and a divorce. I am free to say that the conduct calling her vile names. They also show that of Mrs. Bradbury with other men, and parhe was the deserter, and that she was not. ticularly with a certain man, is at least suspiThe wife's conduct has not been exemplary, cious, but no charge of adultery being pleadbut, on the contrary, has been quite repre-ed, as already remarked, I am unwilling to

HARTSHORNE v. BOROUGH OF AVON- not in writing to pay him that sum if he con

veyed his lands as aforesaid. Held, that the oral contract on which recovery is sought is unenforceable under the statute of frauds, being one "for the sale of lands *** or concern(§ing them." 2 Gen. St. 1895, p. 1603, § 5.

tiff against his five co-obligors in the aforesaid written agreement to recover from them jointly the sum of $2,000 which he claims they agreed by an express promise, not in writing, to pay to him for the said tract of land to be conveyed under the written agreement to the Sims-Kent Company. The transaction covered both by the written contract with Sims and by the alleged oral contract of the obligors inter sese is obviously one of a "sale of lands * * * or an interest in

or concerning them" within section 5. par. 4, of the statute of frauds (Gen. St. 1895, p. 1603).

There is nothing in the written contract to suggest, still less to support, an action at law by one of the obligors therein against his co-obligors for a specific sum as the agreed price of the land to be conveyed to a stranger to the said agreement.

2. MUNICIPAL CORPORATIONS (§ 373*)-PUBLIC IMPROVEMENTS-LIENS-CREDITORS OF SUB

CONTRACTOR.

Creditors of subcontractors for the construction of municipal improvements are entitled to a lien on the moneys due the contractor in the (P. L. p. 369), giving such lien in favor of subhands of the city under Act March 30, 1892 contractors, their assigns, or legal representatives, etc.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 913; Dec. Dig. § 373.*]

3. MUNICIPAL CORPORATIONS (§ 373*)—PUBLIC BUILDINGS-SUBCONTRACTORS-MATERIALMEN-RIGHT TO LIEN-ASSIGNMENT.

Materialmen having furnished materials to a subcontractor for the construction of a municipal building did not disable themselves from acquiring a statutory lien on money in the hands of a city applicable to the contract by taking an assignment of the subcontractor's claim against the contractor.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 913; Dec. Dig. § 373.*1 4. MUNICIPAL CORPORATIONS (§ 373*)-PUBLIC BUILDINGS - CONSTRUCTION - LIENS NOTICE.

The conveyance of the land to such outside party raised no implication that the grantor would be paid the reasonable price of the land by some person or persons other than the grantee. Moreover, the present acWhere a notice of a materialman's claim tion is both by the pleadings and proofs bas-construction of a municipal building for mafor a lien on money due the contractor for the ed on the express contract of the defendants terials furnished a subcontractor had appended that they would jointly pay the plaintiff $2,- a copy of the contract between such material000 if he would convey to the Sims-Kent Com- men and the subcontractor containing the terms, time, and conditions of the agreement as requirpany the land described in the Mirabeau Sims ed by Act March 30, 1892 (P. L. p. 370) $2, the notice contained a sufficient statement of the terms of the contract.

contract.

No joint obligation was proved, and any express contracts that were severally made by the defendants are ineffectual to support the present action because not evidenced by any writing or memorandum signed by or on behalf of the parties to be charged therewith. The statute of frauds covers the transaction.

If this be not so, then, whenever A. conveys land to C., he may recover its price of B. on mere proof of an oral promise to pay such price.

Such a case is clearly within the statute of frauds, and no case more clearly calls for the protection that statute is designed to afford.

The rule to show cause is made absolute.

1. MUNICIPAL CORPORATIONS (§ 373*) - IMPROVEMENTS-LIENS-DEBT OF CONTRACTOR

TO SUBCONTRACTOR-ASSIGNMENT.

An assignment of money due a subcontractor from the contractor for the construction of a municipal improvement did not give to the assignee any lien on the funds in the hands of the city to the credit of the contractor, under Act March 30, 1892 (P. L. p. 369), providing for the attachment of such lien, until the subcontractor had given the statutory notice required to perfect his own lien.

Corporations, Cent. Dig. § 913; Dec. Dig. §
[Ed. Note. For other cases, see Municipal
Corporations, Cent. Dig. § 913; Dec. Dig. §
373.*]
5. MUNICIPAL CORPORATIONS (§ 373*)-PUB-

LIC BUILDINGS-LIENS-NOTICE "SUPPLY"
-"ABOUT."

Act March 30, 1892 (P. L. p. 369) § 1, gives a lien on money due a contractor for the construction of a city building to subcontractors, materialmen, etc., on their compliance with section 2, which requires the service of a verified statement showing the amount of the claim, that the materials were furnished to the contractor, and that they were actually used in the erection and completion of the contract with the city. Held, that where a notice of a lien recited that there was due claimant from D., subcontractor for the mason work on public school No. 9, $6,630.49 for materials supplied in accordance with the contract between claimant and D., all of which had been fully completed, and the affidavit recited that there was due and owing claimant from D. $6,630.49 for materials supplied on and about the construction of public school No. 9 in the city of Hoboken, the statement sufficiently averred that the materials were

actually used in the erection and completion of

the school under the contract with the city; the word "supplied" being used there in the sense of "furnish" and the word "about" being taken to mean "upon."

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 913; Dec. Dig. 373.

vol. 8, p. 6800; vol. 1, pp. 21–28.]
For other definitions, see Words and Phrases,

6. MUNICIPAL CORPORATIONS (§ 373*)-PUBLIC BUILDINGS FUNDS - LIENS-NOTICERESIDENCE OF CORPORATION CLAIMANT. [Ed. Note.-For other cases, see Municipal Where notice of a corporation's claim of Corporations, Cent. Dig. § 913; Dec. Dig. § lien on funds due the contractor for a public 373.*1 building for materials furnished a subcontractor