makes it a crime to burn one's own house in-, Randall and that now under examination, tentionally for a purpose which, apart from and on the authority of that case, we hold the statute, would be entirely innocent. The that there was no harmful error in the porword "willfully" of course, means intention- tion of the charge now attacked. al, and the word "maliciously" connotes the willful doing of an illegal act. But, apart from this, the court was speaking to a particular case, and the language used must be interpreted in relation to the case before it. State v. Egan, 84 N. J. Law, 701, 706, 87 Atl. 455. [9] The ninth point argued relates to a portion of the instructions to the jury on the subject of evidence of good character, which reads as follows: "The defendants presented certain witnesses to show that their character was good; that they were in good reputation in the community in which they lived. That is a circumstance which you are entitled to consider; and if, with all the other circumstances that have been presented to you, the testimony in that regard should raise a reasonable doubt, it would be your duty to recognize it and give acquittal. In other words, the testimony is one element of the case to be considered by you with all the other elements so that on the full case you are to say whether a reasonable doubt exists in your minds as to the defendants having committed this offense. If you find such reasonable doubt, it is your duty to bring a verdict of acquittal." The claim is that this instruction runs counter to the language of Baker v. State, 53 N. J. Law, 45, 47, 20 Atl. 858, 859, where this court said: [10] The tenth point argued covers the denial of motions to direct an acquittal and to instruct the jury that there was no evidence to justify a conviction, etc. We think there was ample evidence to go to the jury on the subject of the guilt of both defendants. We have already alluded to the presence in the house of matresses and clothing soaked with oil or gasoline, of pigs' bladders and inner tubes for automobile tires filled with the same or a similar inflammable liquid, and it is unnecessary to do more than to allude to the facts as testified to, that the female defendant was seen on the afternoon before the fire, apparently working around the premises, and that there was a strong odor of gasoline at that time; that the defendants both left about 7 in the evening, and the fire broke out somewhere in the neighborhood of midnight; that it was an intensely hot and quick fire, and that the two defendants returned home about 1:45 a. m., having on the person of one of them all the savings bank books and the insurance policy for $3,000 on the personal property, although there was evidence to indicate that the personal property in the house was not worth more than $400. The motions to take the case from the jury were rightly denied as to both defendants. [11] The final point argued is that the court refused to order an acquittal on the "It is the right of a person charged with crime to have all the relevant testimony, in-ground that there was no proof that the house was owned by the defendants, or cluding that relating to his good character or reputation, considered by the jury in every either of them, and, in response to the applicase, and if, on such consideration, there exists cation, ruled: reasonable doubt of his guilt, even though that doubt be engendered merely by his previous good repute, he is entitled to an acquittal." But an instruction quite similar to that in the present case was considered in the very recent case of State v. Randall, 113 Atl. 231, at page 233, where the Court of Errors and Appeals approved of an instruction, the effect of which, it said, was that "The statute doesn't require that the property be owned by the person in charge. The language is, the dwelling house of the defendant or another. Now, if it was occupied by them under lease, it would be their dwelling house for the purpose of the statute. I will have to deny your motion and give you an exception." This ruling, as it seems to us, is manifestly correct. As a general rule, the dwelling house of John Doe, in legal contemplation, is the house where John Doe dwells, and in cases of burglary, it will be found that this "The jury should consider all of the relevant testimony, including that relating to the defendant's good character or reputation, and if, on such consideration, there exists reason-point has been ruled on many times. 1 Bishable doubt of his guilt, even though that doubt be engendered merely by his previous good repute, he is entitled to an acquittal; but if, from the entire evidence, including that relating to good character, the jury believe the defendant guilty beyond a reasonable doubt, he should be convicted and the evidence of good character should not alter the verdict. And that was right." We see no substantial distinction between op, New Criminal Procedure, § 573, par. 3. So, in the case of State v. Lentz, already cited, we held that where the statute speaks of the dwelling house of another, the words "of another" are intended to indicate the occupancy, and not the ownership, of a building. See, also, State v. Fish, 27 N. J. Law, 323. This point, therefore, is considered to be without substance. The judgment under review will be af (93 N. J. Eq. 486) (116 A.) 1916, with interest payable semiannually. The VAN ARSDALE et al. v. GORENFLO et al. bond contains the usual clause that in case of (No. 34.) default in payment of interest, or installments of principal, for 30 days after the date where (Court of Errors and Appeals of New Jersey. on the same were made payable, the whole Feb. 2, 1922.) 1. Mortgages 310-Mortgage held to give right to partial release after maturity of debt. Where a bond provided that all or any part of the principal could be paid before maturity, in sums not less than $300, and that lots of a specified area would be released from a mortgage securing the bond at a specified rate per front foot, and the mortgage contained no reference to the clause of the bond giving the right to make payments on the principal, but the release clause of the mortgage was definite, specific, and without limit as to time, a purchaser from the mortgagor was entitled after maturity of the bond, to a release of a proportionate part of the land, on payment of money due on it, whether or not his demand for such release was made before or after the maturity of the debt. 2. Mortgages 310-Successor of mortgagor held entitled to release on payment of money due. That a purchaser of land, subject to a bond secured by a mortgage with a partial release clause, took title after default, which gave the mortgagee an option to declare the whole debt due, held not to deprive purchaser of the right to a partial release. 3. Set-off and counterclaim 41-Counterclaim by purchaser from mortgagor against his own mortgagee not allowable in suit to foreclose mortgage. In a suit by a mortgagee against a purchaser from a mortgagor to foreclose a mortgage, in which defendant claimed a release of the mortgage as to land purchased by him on payment of its proportionate share of the mortgage, a counterclaim by defendant against one to whom he had mortgaged his part of the premises could not be considered. Appeal from Court of Chancery. Suit by Alice M. Van Arsdale and others against Ida Gorenflo and others. From a decree for defendant Tinfowitch for a release of certain premises from a mortgage, complainants appeal. Affirmed. principal sum, with interest, should, at the option of the obligee, become due and payable immediately. It also contains a provision that the obligors, their heirs and assigns, may pay off the whole or any part of the principal before maturity, in sums not less than $300 in any one payment, and that lots of a specified area will be released from the mortgage given to secure the bond, at a specified rate per front foot. The mortgage contains a provision that it is given with the express understanding and agreement that lots of a specified area will be released from the lien thereof at a specified rate per front foot; the area and the rate being the same as mentioned in the bond. It also contains the usual defeasance clause and recites the interest and installment of principal default clause contained in the bond. Through mesne conveyances the defendant Tinfowitch, by deed dated December 10, 1915, recorded December 13, 1915, became the owner of one of the lots, subject to the lien of the complainant's mortgage. His deed recites that it is made subject to the payment of $320, being part of complainant's mortgage, which sum he assumed and agreed to pay. That is the amount which, by the terms of the bond and mortgage, he would be required to pay complainant for a release. Tinfowitch erected a building on his lot, and by mortgage dated February 11, 1919, recorded March 17, 1919, he mortgaged the premises to the defendant Traders' Building & Loan Association, and by mortgage dated April 3, 1919, recorded April 14, 1919, he gave another mortgage covering the premises to the defendant Albert Wolf Lumber Company. The $250 installments of principal, which complainant's bond required to be paid semiannually, were not paid; but the complainant did not exercise the option given her by the bond to declare the whole principal sum due upon default in payment for 30 days. The whole principal sum fell due November 26, 1916. but was not paid. Some time after the lastmentioned date, Tinfowitch tendered complainant the proper amount specified in the bond and mortgage for a release of his lot and demanded a release, which tender and demand were refused, the reason assigned by complainant being that Tinfowitch was not entitled to The opinion of Vice Chancellor Fielder is receive a release after the maturity of the as follows: [] The bill is filed to foreclose a mortgage dated May 4, 1914, given by Ida Gorenflo to complainant Alice M. Van Arsdale, covering several tracts of land situate in Newark and East Orange. The mortgage was given to secure the payment of a bond bearing even date with the mortgage, made by Ida Gorenflo and another to said complainant, conditioned for the payment of the principal sum of $7,457.40. as follows: $250 on November 26, 1914, and the like sum of $250 every six months thereafter, until the due date of the bond, and the balance of the principal sum on November 26, bond; and complainant thereafter, on November 10, 1919, filed this bill to foreclose her mortgage, making Tinfowitch and his wife, the Traders' Building & Loan Association, and the Albert Wolf Lumber Company, with others, defendants. Tinfowitch filed an answer, denying complainant's right to foreclose as against him, and a counterclaim, in which he prays "that he may have such relief against complainant as shall be necessary to place him in full and proper possession, unincumbered as regards the mortgage in foreclosure," of the premises owned by him. Although this prayer does not ask definitely that the complainant be decreed to execute and deliver to him a release cover For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ing his property upon payment of the amount [ having demanded a release before the bill in specified in the bond and mortgage, the cause was tried and argued upon the theory that he seeks such relief, and his counterclaim may be amended accordingly. The answer of the Traders' Building & Loan Association alleges that it is entitled to have the lot in question released from complainant's mortgage, and the defendant Albert Wolf Lumber Company has not answered, but has filed a notice that it desires its incumbrance reported on under the rule of this court. Complainant insists that the provision contained in the bond, to the effect that permission to pay off the whole or any part of the principal money before maturity in sums not less than $300, applies to the clause which follows, which specifically refers to the releases, and she maintains that because of that provision' Tinfowitch's right to a release expired when complainant's debt matured; but I do not think so. As I read the provision in the bond, there were two options given the mortgagor, her heirs and assigns: First, the right to make payments on account of principal, which was expressly limited to before maturity; and, second, the right to exact releases, which was not limited as to time. The mortgage contains no reference to the right to make payments on account of principal, and the release clause therein contained is definite and specific, without limit as to time, and contains no reference which would charge a purchaser from the mortgagor with notice and put him upon inquiry as to the terms of the bond in that respect. [2] Complainant further maintains that Tinfowitch is not entitled to a release, because he took title to his lot after the condition of the bond and mortgage had been broken; that is, after three defaults had occurred in the payment of semiannual installments of principal and in two payments of interest. These defaults, continued for 30 days, gave complainant the option to declare the whole principal sum due and to demand immediate payment thereof, with all arrearages of interest; but she did not exercise her option, and until she did exercise it, or until the due date of the bond arrived, her debt had not matured. In fact, she continued to give releases upon the terms specified in the bond and mortgage, not only after default in payment of interest and installments of principal had occurred, but after the due Idate of her bond. Complainant also maintains that in any event her liability to deliver releases extended to demand therefor made before the due date of the bond. It is my conclusion that, under the release clause contained in the mortgage, the privilege given to the mortgagor and her assigns to receive releases for lots of a certain size, at a specified rate per front foot, is not limited as to the time within which it should be exercised by one who purchased from the mortgagor before the principal fell due, and that Tinfowitch, being such a purchaser and this cause was filed, accompanying his demand by tender of a proper sum of money, was entitled to receive a release, although his demand was made after the maturity of the debt. Hall v. Home Building Co., 56 N. J. Eq. 304, 38 Atl. 447; American Net, etc., Co. v. Githens, 57 N. J. Eq. 539, 41 Atl. 405; Ventnor Investment Co. v. Record, etc., Co., 79 N. J. Eq. 103, 80 Atl. 952; Savings Investment, etc., Co. v. United, etc., Co., 84 N. J. Eq. 472, 475, 94 Atl. 588, Ann. Cas. 1916D, 1134. Tinfowitch should have completed his tender after this suit was commenced, by paying into court the amount he claims complainant should have accepted when he filed his answer. He may now pay into court $320, which I believe is the amount specified in the bond and mortgage for a release of the premises in question, with interest on that sum, to be computed from the date to which interest was last paid complainant to the time of payment into court; or, if complainant will waive payment into court, and will execute and deliver a release to Tinfowitch, such payment may be made direct to complainant. In any event, complainant will be decreed to deliver a release to Tinfowitch. I think Tinfowitch is in a measure responsible for this litigation, because he neglected for so long a time after becoming the owner of his lot to demand a release, and therefore I shall not allow him costs as against complainant. The interest which the Traders' Building & Loan Association has in the lot is derived through Tinfowitch, and it will receive the relief it seeks through the release complainant is to deliver to Tinfowitch. No costs will be allowed as between this defendant and complainant. [3] Tinfowitch filed a counterclaim against the Traders' Building & Loan Association, seeking relief which, in my judgment, cannot be granted in this suit. The counterclaim will be dismissed, but without costs. Parker, Emery & Van Riper, of Newark, for appellants. Samuel Herman, of Newark, for respondent Traders' Building & Loan Ass'n. PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Fielder. For affirmance: The CHIEF JUSTICE, Justices SWAYZE, TRENCHARD, PARKER, BERGEN, KALISCH, BLACK, and KATZENBACH, and Judges WHITE, WILLIAMS, GARDNER, ACKERSON, and VAN BUSKIRK. For reversal: None. (93 N. J. Eq. 508) (116 A.) (140 Md. 96) JOSEPH W. NORTH & SON, Inc., v. NORTH LINTHICUM v. SHIPLEY et al. (No. 68.) et al. (No. 99.) (Court of Errors and Appeals of New Jersey. March 6, 1922.) Indemnity 16-Indemnitor held entitled to impound proceeds of judgment against it to meet claims. Where a seller of a business recovered a judgment against the buyer for a sum of money to indemnify it against liability on orders which the buyer had agreed to fill, the buyer held entitled to impound the proceeds of the judgment to meet its liability for failure to fill an order. Appeal from Court of Chancery. Suit by Joseph W. North & Son, Inc., against Herbert S. North and others. From a decree for complainant, 114 Atl. 411, defendants appeal. Affirmed. Abe J. David, of Elizabeth, for appellants. Ralph E. Lum, of Newark, for respondent. PER CURIAM. The history of the litigation is adequately stated in a previous opinion in the cause by the same Vice Chancellor, reported in 91 N. J. Eq. 390, 110 Atl. 581. As he there states, the equity suit grew out of a judgment at law recovered by the present appellants against the corporation respondent, and affirmed by this court in 93 N. J. Law, 438, 108 Atl. 244. After paying the judgment, the corporation sought to have the money impounded generally to meet judgments of outside parties, relating to the subject-matter, when and as recovered against the corporation. Such wholesale relief the vice chancellor denied, 91 N. J. Eq. 399, 110 Atl. 581, saying that to invoke an equity against the fund the complainant (respondent here) "must point out with certainty and definiteness the double liability as to amount and person and establish it by satisfactory proof." Complainant did not appeal, but later amended the bill setting up a specific liability within the terms of the decision, and obtained the decree from which defendant has now ap pealed. We conclude that the decree should be affirmed for the reasons given by the learned Vice Chancellor in his second opinion (114 Atl. 411), which, of course, should be read in connection with and as complementary to the earlier one reported in 91 N. J. Eq. 390, 110 Atl. 581. For affirmance: The CHIEF JUSTICE, Justices SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH, BLACK, and KATZENBACH, and Judges WHITE, HEPPENHEIMER, WILLIAMS, GARDNER, ACKERSON, and VAN BUSKIRK, For reversal: None. (Court of Appeals of Maryland. Jan. 11, 1922.) 1. Navigable waters 37 (2)-No patent to land under water if navigable or state has no title. A patent to land under water may not be issued if the water is navigable (Code, art. 54, § 49). Appeal from Commissioner of Land Office. To be officially reported. Application by Joshua S. Linthicum for a patent to part of the bed of a body of water. From an order of the Commissioner of the Land Office, sustaining caveat by John F. riparian lands, and refusing the patent, petiShipley and another, as owners of certain tioner appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ. Samuel K. Dennis, of Baltimore (W. Harry Holmes, of Baltimore, on the brief), for appellant. A. Theodore Brady, of Annapolis, for appellees. ADKINS, J. This appeal is from an order of the Commissioner of the Land Office sustaining the caveat of the appellees and refusing to grant a patent to appellant to part of the bed of a body of water, designated in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the surveyor's certificate as a "pond," in the Third election district of Anne Arundel county, containing in the part alleged to be vacant land 30 acres. This pond, or lake, or whatever may be its proper designation, is entirely surrounded by lands owned by the caveators and the caveatees and by one Hancock. The grounds of the caveat are: (1) That the survey comprehends within its metes and bounds a tract of land or part thereof covered or overspread with navigable or tide water. (2) That the said survey comprehends within its metes and bounds a tract of land or part of a tract of land covered with water; that the caveators, who are owners of the that the caveators, who are owners of the land abutting on said water, enjoy riparian rights to the said water and land thereunder. (3) That the survey comprehends within its metes and bounds a tract of land or part thereof to which the caveators hold deed of title, and the land is owned by the caveators in fee simple. Continuing, the court says: "Terrapin cove, therefore being a tributory of Patuxent river, and within the ebb and flow of the tide, must be regarded as a public river or arm of the sea, the soil of which, under the charter granted to Lord Baltimore, became vested in the state of Maryland; and so it remains unless it be included in some grant by the state made prior to the passage of the act of 1862." That case seems to hold that a body of water navigable under the common-law test comes within the provision of the act of 1862. If this be the proper interpretation of that The fundamental questions to be answer- decision, the order appealed from must be ed are: (a) Has the state title to the locus in quo? (b) Is the land covered by navigable water? [1] If the water is navigable then, under the act of 1862 (Code, art. 54, § 49), a patent may not be issued. If the state has no title, the result is the same. First as to navigability: It is abundantly established by the testimony of all the witnesses that the water covering the land cannot be used for purposes of commerce or travel; and that is the well-established test in most of the states of this country. It does not seem to have been adopted in this state, unless the recognition of the general rule in the case of Mayor and City Council of Havre de Grace v. Harlow, 129 Md. 265, 98 Atl. 852, had the effect of overruling earlier decisions of this court. It was decided in the case of Sollers v. Sollers, 77 Md. 148, 26 Atl. 188, 20 L. R. A. 94, 39 Am. St. Rep. 404, that a parcel of land containing about 12 or 2 acres of land called Terrapin cove, "all of it covered by water, within the ebb and flow of the tide," with a maximum depth of 8 feet, with a wire fence extending across its mouth 30 yards wide, said cove being described as "an arm of Mearses' cove, which emptied into the Patuxent river through a channel made by John J. Sollers," was within the inhibition of article 54, § 49, of the Code. It being uncertain from the evidence in that case whether the "channel" thus referred to was an entirely artificial way, or whether before it was made the waters of Mearses' cove had flowed through a natural outlet to the river, the court assumed for the purposes of its ruling that it was a natural outlet. Judge Page, who wrote the opinion, quotes from affirmed, because then the Commissioner was prohibited by the act of 1862 from granting a patent for the locus in quo, as it appears from the testimony of all the witnesses that there is a channel connecting the so-called pond with the Patapsco river, said channel being variously estimated at from 8 to 20 feet in width, through which the tide ebbs and flows. However, it does not appear from the report of the Sollers' Case whether or not "Terrapin cove" was in fact navigable-that is susceptible of being used for purposes of commerce or travel-and no reference to that is made in the opinion of the court. But, if that case be not regarded as decisive of this, then the order of the Commissioner must be sustained, because the state had no title. [2] It is conceded by caveatee that a grant by the owner of the bed of a nonnavigable stream of land bounding thereon conveys, even without express language, ownership to the middle of the stream, Day v. Day, 22 Md. 530; Browne v. Kennedy, 5 Har. & J. 196, 9 Am. Dec. 503. But it is urged that, before caveators cap successfully invoke that principle, they must first establish by proof a grant calling for the shores of the pond to them or their predecessors in title from the state; and it is contended that the caveators have failed to meet that burden in that they only claim that they are "owners of land abutting" on the pond, and the evidence is only this as to Shipley, while as to Cook definite lines are established beyond the shore, but short of the middle of the water. The proof also shows that the lines of Hancock, another riparian proprietor, who is not a party to the proceeding, extend into the water, but not as far as the middle. This contention overlooks the testimony of Linthicum, the caveatee, |