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$4,500, or of any contract assuming the payment of the $10,000 mortgage. All of these things are by the contract of sale made the duty of Mrs. Hartley. The deed made by Mr. and Mrs. Sickels to the complainant under date of May 2, 1899, contains no recognition of any obligation on the part of the complainant to pay any balance of cash purchase money, to give any mortgage for $4,500, or to assume the payment of the $10,000 mortgage. If the contention of the complainant be entertained, and the defendant Hoffman be dealt with as the holder of the legal title to the property, charged with knowledge of the equitable interest of the complainant, he is entitled to stand in Mrs. Sickel's place, and to have and receive the balance of the purchase money in performance of the contract entered into between Mrs. Sickels and Mrs. Hartley, in whose place the complainant claims to stand. The bill of complaint entirely fails in any way to recognize any such obligation on the part of the complainant, and was evidently framed upon the idea that Mr. Hoffman's title could be overthrown by the alleged frauds in the attachment suit. The evidence in the cause also shows that Mrs. Hartley, while she was the holder of the equitable title, practically abandoned it. The complainant contends that this was caused by the discovery of the alleged liens against Mrs. Sickels' title. But Mrs. Hartley's own testimony shows that the reason she abandoned it was that she was unable to secure the purchase money which by the terms of the agreement she had undertaken to pay. The liens could readily have been adjusted by applying the purchase money to their satisfaction. A bill in this court to enforce and protect the rights of Mrs. Hartley, filed in aid of the contract, would have easily controlled these incidents. The proof also indicates that Mrs. Sickels and Mrs. Hartley had no agreement that the latter's payments might be delayed; for, on Mrs. Hartley's failure to pay, Mrs. Sickels brought an action of ejectment against her, seeking to recover possession of the premises notwithstanding the agreement to convey. This suit was not pressed to judgment, but no bill appears to have been filed in this court by Mrs. Hartley asserting any equitable rights under the contract with Mrs. Sickels, and seeking to restrain the latter's ejectment suit. It is also difficult to entertain the claim for relief based upon the alleged equitable title, when the evidence shows that the defendant Hoffman has actually been put into possession of the premises in an ejectment suit brought by him against the Hartleys under his purchase at the attachment sale, without any attempt on their part to set up the claimed equitable title as a defense. It was, of course, not pleadable as a defense in a court of law; but, if Mrs. Hartley intended to maintain her equitable rights under the contract, she should have filed her bill in this court, and have sought a restraint

of the ejectment suits at law until her equltable rights were established and protected by a decree. Instead of this, she made no defense to Mr. Hoffman's ejectment suit. She filed no bill asserting her equity. She suffered judgment by default. When she found that she was about to be dispossessed of the premises, she hastily assigned her alleged interest to the complainant, without disclosing to her the impending ejectment, and put the complainant into possession of the premises, only to be turned out by a writ of habere facias possessionem within three weeks thereafter. This was undoubtedly a great hardship to the complainant. But Mr. Hoffman was in no way responsible for it, for the complainant admits she did not meet him in these transactions until the day she was ejected from the premises. Her misfortunes are probably chargeable to the ill advice of her former attorney, to the effect that the title under the attachment suit was worthless. It was the duty of Mrs. Hartley and the complainant, if they expected specifically to enforce the agreement to convey, to come into this court as promptly as the nature of the case would admit. Van Doren v. Robinson, 16 N. J. Eq. 263, and cases there cited. Mrs. Hartley knew of the attachment proceedings, as appears by her own testimony, before Mr. Babcock conveyed the property to Mr. Hoffman. She took no steps to protect her equitable title. Mr. Hoffman bought and paid a valuable consideration. He brought an ejectment against her, which was prosecuted to judgment and possession of the premises, and still Mrs. Hartley did nothing to assert her equitable rights. There has been no such diligence in protecting and enforcing the equitable claims of Mrs. Hartley and of the complainant, who stands in her place, as is required to entitle them to the favorable consideration of this court. If the complainant has any right to recover the purchase money which has been paid, it must be by proceeding in the courts of law. There is no aspect of the case upon which relief can be granted to the complainant in this cause.

The bill of complaint should be dismissed, with costs.

(67 N. J. L. 27)

GAY ▾. MOONEY. (Supreme Court of New Jersey. Nov. 11, 1901.)

CLAIMS AGAINST DECEDENT'S ESTATE-EVI

DENCE-SERVICES RENDERED.

1. In an action against an administrator to recover compensation for board and lodging furnished to the intestate, the plaintiff may prove an oral bargain between himself and the decedent that the latter would devise a dwelling house to the plaintiff's children as compensation for the service to be rendered. Such a bargain, not being enforceable at law because of the statute of frauds, nevertheless shows that the service was not a gift, but was to be paid for.

2. Although the stipulated payment was to

be made to the plaintiff's children, yet, as the stipulation cannot be legally enforced, the legal right to payment is that which the law deduces from the fact that one person has served another, not gratuitously, viz. a right in the servant to be paid by the employer the fair value of the service.

(Syllabus by the Court.)

Error to court of common pleas, Middlesex county.

Action by Michael Gay against Hugh Mooney, administrator of Hugh Mooney, deceased. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued June term, 1901, before DEPUE, C. J., and GARRISON, COLLINS, and DIXON, JJ.

Theodore B. Booraem, for plaintiff in erFreeman Woodbridge, for defendant in

ror.

error.

DIXON, J. The defendant's intestate was the uncle of the plaintiff's wife, and for several years before his death resided in the plaintiff's family. In the present suit the plaintiff sought to recover compensation for the board and lodging furnished to the deceased.

In order to rebut a presumption that the service was rendered and received as a gratuity, the plaintiff put in evidence tending to show an understanding between himself and the deceased that the latter would devise a certain dwelling house to the plaintiff's children in return for what he should receive as a member of the family. For such a purpose this evidence was plainly legiti- | mate. It came within the rule laid down in Disbrow v. Durand, 54 N. J. Law, 343, 24 Atl. 545, 33 Am. St. Rep. 678, that in cases like the present a reasonable and proper expectation that there would be compensation must, and hence may, be shown. The bar gain thus exhibited is not one on which an action at law could be maintained, because it related to land, and was not susceptible of such proof as the statute of frauds requires; but when, in pursuance of a bargain for this reason unenforceable, services have been rendered, the legal remedy is by an action on the quantum meruit for the value of the services. McElroy v. Ludlum, 32 N. J. Eq. 828. As was said in Stone v. Todd, 49 N. J. Law, 274, 281, 8 Atl. 300, the intended devise was but the method of paying an admitted obligation, and, if payment in that manner be not made, the creditor is entitled to recover the value of the services.

Although the bargain between the plaintiff and the intestate contemplated payment to be made to the plaintiff's children, and not directly to himself, yet, as that bargain did not take the form of an actionable contract, it falls out of view as a ground of legal remedy, and appears only to give color to the conduct of the parties in furnishing and accepting the service rendered. It affords the means of determining that the service was not a gift but a sale. and out of that de

termination the law deduces a right in him who sold the service to be paid its value by him who bought it. These principles sufficiently answer the important exceptions taken at the trial and all the exceptions mentioned in the brief of counsel. The other exceptions. therefore, need not be noticed. The judgment of the Middlesex pleas is affirmed.

(67 N. J. L. 21) STATE (CAMP et al., Prosecutors) v. NEUSCHELER, Collector.

STATE (COSSITT LAND CO., Prosecutor) V. SAME.

(Supreme Court of New Jersey. Dec. 3, 1901.)

MUNICIPAL IMPROVEMENTS-ASSESSMENTS

INTEREST.

An assessment levied in the town of Union, under the act of April 20, 1886 (Gen. St. p. 3546), bears interest at the rate of 8 per cent. per annum by force of an ordinance of the town adopted under the act of February 19, 1880 (Gen. St. p. 3403).

(Syllabus by the Court.)

Applications by Frederick E. Camp and others and by the Cossitt Land Company for writ of mandamus against Louis E. Neuscheler, collector of the town of Union. Writs refused.

Argued November term, 1901, before HENDRICKSON and DIXON, JJ.

Abel I. Smith, for the motion. Frederick Frambach, opposed.

DIXON, J. This is an application for a writ of mandamus, commanding the collector of the town of Union to accept the principal and interest at the rate of 6 per centum per annum in payment of an assessment levied in the town for the construction of a sewer, under authority of “An act providing for sewerage in and from certain towns in this state," approved April 20, 1886 (Gen. St. p. 3546). The collector insists that interest at the rate of 8 per cent. per annum is due.

By an act approved February 19, 1880 (Gen. St. p. 3403), the town council of any town was empowered to determine the rate of interest chargeable upon overdue assessments at not less than 7, nor more than 12, per cent. per annum; and by an ordinance passed September 1, 1886, the council of the town of Union fixed the rate to be charged on assessments levied by the town at 8 per cent. per annum. By a supplement to the above-mentioned act of April 20, 1886, which was approved February 29, 1888 (Gen. St. p. 3549), the assessments levied under that act were to be subject to the same interest and penalties as assessments for other improvements in the town. The present assessment was levied, in the first instance, on September 1, 1897, by the circuit court of Hudson county, in confirming the report of commissioners appointed by virtue of said act of April 20, 1886. Although this assessment

was levied in accordance with the rules prescribed in an act approved February 19, 1895 (Gen. St. p. 2138), yet it was levied under the act of April 20, 1886; for without that act neither the court nor the commissioners had any authority in the premises. This assessment, being removed by certiorari into the supreme court, was there affirmed in absolute terms by a judgment entered June 13, 1898 (40 Atl. 632), and afterwards, on March 4, 1901, that judgment was affirmed by the court of errors (48 Atl. 562). These judgments establish the assessment as of the date when it was first levied, September 1, 1897, with all the incidents thereto legally attached, including the interest accruing thereon at the rate of 8 per cent. per annum from the time when it became due and payable. So far as now appears, that time must be deemed the day on which the assessment was placed in the office of the collector of the town for collection. Consequently the collector should not be required to accept an amount less than the principal and interest thus indicated.

The mandamus asked for is refused.

(67 N. J. L. 114)

STATE (HEPBURN, Prosecutor) v. MAYOR, ETC., OF CITY OF JERSEY CITY

et al.

(Supreme Court of New Jersey. Dec. 3, 1901.)

EMINENT DOMAIN-INTEREST IN LAND-WATER SUPPLY.

The act approved April 1, 1895 (P. L. 1895, p. 769), authorizes cities to take by condemnation, in procuring a public water supply, "land, water, water rights, or other property." Under this power, a temporary use or interest in land may be so taken.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of Henry Hepburn, against the mayor and aldermen of Jersey City and others, to review an order of the justice of the supreme court appointing commissioners to condemn land. Affirmed.

Argued November term, 1901, before VAN SYCKEL, FORT, and GARRETSON, JJ.

Halsey M. Barrett, for prosecutor. W. D. Edwards, for defendants.

FORT, J. This writ brings up an order appointing commissioners in condemnation proceedings under the statute. Laws 1900, p. 79. Jersey City possesses power to condemn for a water supply under an act approved April 1, 1895, which provides that when the proper board or other municipal authority of any city shall deem it proper to acquire land, water, water rights, or other property within or without said city, for the purpose of supplying said city with water, and cannot agree with the owner as to the price, they may apply to condemn the same. The thing which may be condemned, therefore, is "land, water, water rights, or other

The

property." Laws 1895, p. 769. The order brought up in this case was made necessary on the part of Jersey City in prosecuting the public work of procuring a public water supply for that city. Objection is made to so much of the order as permits the condemnation of a temporary use of 20 feet of land upon either side of a strip of land 40 feet in width, which by the order is to be condemned absolutely for the purposes of the city. language of the order called in question is this: "Also to use and occupy until June 1, 1901, in the construction of its conduit and pipe lines, a strip of land twenty feet wide on each side of the above-described land, for the full length thereof." It is contended that the language of the act of April 1, 1895, does not confer authority to take a temporary use or interest in land by condemnation. This is a municipal public work, and if the power is found in the statute it should be upheld. Why should a municipal corporation, engaged in a public work, be required to take any interest or estate in land beyond that required for the purpose contemplated? Is it not, in fact, the correct rule that it should not be permitted to take any interest beyond that necessary? The act of 1895 authorizes the municipality to condemn "land." Does that contemplate the taking of the fee, or an exclusive, permanent use only? The case of Railroad Co. v. De Camp, 47 N. J. Law, 518, 4 Atl. 318, 54 Am. Rep. 197, is relied upon to sustain this contention. The facts in that case, however, are different. The character of the right or interest there condemned was not a definite one. That was an attempt to condemn a sort of shifting use,-a use the damages resulting from which were not capable of definite ascertainment. Neither the time of the use, the character of the excavation or construction to be made, nor when changes might ultimately be required by the company, were certain, or capable of such ascertainment as would form a fair basis for the calculation of damages by the commission

ers.

In the case before us the interest or use to be taken is definite. It is "the right to use and occupy until June 1, 1901." The damages arising from such a deprivation of land, and those incident to it, from the use proposed to be made of it, are easily ascer tainable. They must, of course, be fixed upon the basis of the greatest possible injury to the land for the time it is to be occupied and the use to be made of it while it remains in the possession of the city.

Other courts have upheld a temporary use where cities have been seeking condemnation of land in the construction of a water supply. In obtaining its water supply, the statute gave to the city of New York the right to condemn lands in fee for its purposes. Under this act it undertook to condemn a temporary use in land off its proposed pipe line route, to set up its machinery dur

ing the time of the construction of said line, and the appellate division of the supreme court held that such a condemnation of a temporary use was within the statute, where the right to take a fee was given. In re Thompson, 57 Hun, 419, 10 N. Y. Supp. 705. The right to take land, by purchase or otherwise, does not involve the obligation to take the whole interest in land purchased or otherwise taken. No more land and no greater interest in it need be taken than the public use requires. Tyler v. Husdon, 147 Mass. 609, 612, 18 N. E. 582.

The

The rule is stated in the American and English Encyclopedia of Law in this way: "When, in the course of construction of a public work, it is necessary to occupy temporarily adjoining lands, such occupation may be authorized; the owner is entitled to compensation for the length of time that the land is used and the damage done." 10 Am. & Eng. Enc. Law, p. 1131. leading case in this country is one decided by Chancellor Kent in 1823, arising out of the condemnation of a temporary use or interest in land during the construction of one of the New York state canals. In speaking of the taking of a temporary use in such a case, that learned jurist said: "I cannot perceive any room for doubts as to the power of the commissioners to enter upon and use the ledge of rock in question for the purposes of making the dam. There is no avoiding this conclusion, unless we maintain the construction that the act only intended that the commissioners might enter, use, and take possession of land for permanent appropriation of the whole fee of the land, and not for temporary use. According to this construction, if they wanted room adjoining the canal. for a temporary deposit of material for locks or dams, or a right of way or passage to the canal, or the materials of stone, gravel, clay, etc., from the adjoining lands, they could not use them without at the same time appropriating the fee of the land. But why should the commissioners be obliged to appropriate a greater interest in the adjoining land than is requisite for the public object? And what possible objection can there be to the construction allowing them to make as much use of the adjoining grounds as should be necessary for the prosecution of the improvements, and no more? Statutes made for the public good and for general and beneficial purposes are to receive a very liberal construction, and be expounded in such a manner as that they may, as far as possible, attain the end. There was no need that the fee of lands, used only for a temporary purpose, should be vested in the public. If the owner is paid for the damage occasioned by the temporary use of his lands, it is all he can justly require." Jerome v. Ross, 7 Johns. Ch. 315, 11 Am. Dec. 484.

In this case the order made by the supreme court justice was within the statute, and is affirmed, with costs.

(67 N. J. L. 94)

HUNTON v. PALMER. (Supreme Court of New Jersey. Nov. 11, 1901.)

FOREIGN

AFFIDAVIT-VERIFICATION-RE

PLEVIN-SERVICE OF PROCESS-JURIS-
DICTION-ATTORNEY'S FEE.

1. An affidavit required or authorized to be taken for any lawful purpose whatever, when taken out of the state, may, by express provision of our statute, be taken before a master of the court of chancery.

2. In a suit in replevin in the district court, if the plaintiff does not require the delivery to him of the property in question, the constable to whom the writ issues shall, if so directed in writing by the plaintiff or his attorney, serve the process as in other cases, without taking or delivering the property.

3. Where the process in a replevin suit was served upon the defendant as in other cases, and the defendant appeared, and the case was contested at the trial, and judgment was entered against the defendant awarding the possession of the property to the plaintiff, as provided by section 143 of the district court act, the defendant cannot be heard to say that the court was without jurisdiction, because there was no written direction to the constable not to take the property under the writ in the first instance.

4. In a replevin suit the district court may allow an attorney's fee to the prevailing party, not to exceed $10.

(Syllabus by the Court.)

Certiorari to Jersey City district court.

Action by George Hanton against Isaac Palmer. Judgment for plaintiff, and defendant brings certiorari. Affirmed.

Argued June term, 1901, before VAN SYCKEL, FORT, and GARRETSON, JJ.

James D. Manning and F. F. Furey, for the prosecutor. Weller & Lichtenstein, for respondent.

FORT, J. A master in chancery of this state has authority to take the acknowledgment and proof of deeds outside of this state for lands lying in this state, where the parties reside out of this state, and execute the deed out of this state. The power is expressly conferred by statute. 1 Gen. St. p. 853, § 7. The revision of the conveyancing act of 1898 contains the same power. Laws 1898, p. 679, § 23. Our statute also declares that any affidavit required or authorized to be taken for any lawful purpose whatever, when taken out of the state, may be taken before any officer who may be authorized by the laws of this state to take the acknowledgment of deeds in such state. That statute confers authority upon a master in chancery to take an affidavit out of this state for use in this state. 2 Gen. St. p. 2334, § 37. The objection to the affidavit to the chattel mortgage in this case is therefore without substance.

There is no error in the record to sustain any of the other reasons assigned for reversal. The suit was one in replevin, and there was a waiver of the taking of the property under the writ, as is authorized by the district court act. Laws 1898, p. 610, § 143.

The judgment record before us expressly certifies "that the plaintiff in the above case did not require a delivery of the property set forth and described in said writ to him," which brings the case within section 143 of the district court act. The only contention in this regard against the judgment is that the record does not show that the nonrequirement of the delivery of the property was "directed in writing by the plaintiff or his attorney," as required by the statute. That is not a matter which the defendant can raise. He cannot object to the fact that the plaintiff did not take his property under the writ. The writ was served and returned, and the case tried as other causes, and a judgment was entered awarding the possession of the property in question to the plaintiff, and an order was made as a part of the judgment to take the property and deliver it to the plaintiff. The defendant appeared in the action, and defended the suit. The judgment was in strict conformity to the statute.

Objection is also made to the allowance of an attorney's fee of $10, as not authorized by law. This is expressly provided for in replevin cases. Laws 1898, p. 636.

There is no error in the record, and the judgment of the district court is affirmed.

DENNIN v. HILTON et al.

guing to look at the case of Skillman v. Wiegand and some of the cases there cited.

The question of law raised is an interesting one. I am not prepared to say that it is not debatable. I am not ready to say that the opinion which I entertain is not one that may be properly debated in the court of errors and appeals. But my own opinion is clear as to what the condition of the law is, and I therefore rule it. I shall rule it in favor of the defendant.

The bill is filed by Mr. Dennin, as administrator of a woman by the name of Caroline L. Jones (who died intestate in February last), against William B. Hilton, an elderly gentleman and a retired mariner, to account for the estate of Miss Jones in his hands. The bill alleges that he has possessed him. self of it by means of procuring her to place in the joint names of herself and Capt. Hilton, in two savings banks, a small fortune which she had accumulated, and the charge is that that transfer to joint account was the product of fraud and undue influence, and the bill called on Capt. Hilton to answer all these matters under oath, and he has answered under oath with great particularity. No exception has been made to his answer for not being full enough and frank enough. Certainly it is a full, complete, and frank answer. That answer completely answers all the allegations of fraud made in the bill; and the proofs made here to-day fully exonerate him, in my judgment; and I think it is due to Capt. Hilton to say positively and em

(Court of Chancery of New Jersey. Dec. 13, phatically that there is not the least evi

1901.)

GIFTS CAUSA MORTIS-REQUISITES.

After being informed that she was suffering from a fatal disease, donor made certain deposits in two savings banks in the joint names of herself and donee, one on the condition that the "account belongs to us as joint tenants, * * * absolute property in survivor, either and the survivor to draw," the other on the condition that the "money to be paid to either party; in case of death of either one the survivor to draw the balance." Afterwards she delivered the deposit pass books to donee. Held that, though the donor retained the right to draw the money deposited, her delivery of the depositor's pass books to the donee constituted an absolute delivery of the deposits to him, making the gift valid.

Bill for an accounting by John Dennin, as administrator of the estate of Caroline L. Jones, deceased, against William B. Hilton and another. Dismissed.

William Brinkerhoff, for complainant. Charles H. Hartshorne and Eugene W. Leake, for defendant William B. Hilton.

PITNEY, V. C. (orally, after hearing coun. sel for complainant). I do not call for argument on the other side, because I have had occasion within a few years to consider the authorities which govern a case of this kind. I refer to the two cases of Green v. Tulane, 52 N. J. Eq. 169, 28 Atl. 9, and Skillman v. Wiegand, 54 N. J. Eq. 198, 33 Atl. 929, and counsel kindly gave me a moment while ar

dence in the case that he practiced any fraud or any undue influence whatever on this lady. The influence he exerted upon her was to take her, a middle-aged woman, 40 years of age, into his family as a servant. She was illiterate, read very poorly, and could not write her name. She was bright, smart, intelligent, and desirous to improve herself. He gave her the opportunity. She took lessons, and learned to read and write. She was bright in the way of attending to business affairs in her line. The captain was old, and his wife was in feeble health, and Miss Jones took the whole care of the household,-did all the marketing, and paid all the bills, and all in the most satisfactory manner. In the meantime, as the evidence satisfies me, a strong regard grew up between the captain and his wife and his wife's sister, who seem to have composed all his family, and this woman. She raised herself by pure merit, and by force of character and beauty of manners, from the position of a mere menial to that of almost an equal in the household, and was treated as such. Housekeeper, of course; but I judge from the evidence that she was one that never assumed anything, or pushed herself forward, but when she rose in social position it was by his invitation. The captain and his wife thought a great deal of her, and she thought a great deal of him and his wife. They

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