the whole amount due on the mortgage to Mrs. Boss and R. R. Boss, in satisfaction of their claim against the latter. A reference will be ordered to ascertain, upon the statement of an account, the amount due to the complainant. SOMERS et al. v. CRESSE et al. (Court of Chancery of New Jersey. March 6, 1888.) 1. SETTLEMENT-IMPEACHMENT MISTAKE EVIDENCE. A settlement was made between a mortgagor and mortgagee as to the mortgage indebtedness, when each was familiar with all the transactions concerning it, and prior to the rendition of the complainant's judgment against the mortgagor. Held, that the burden of proof is upon the mortgagor, and his judgment creditor seeking to set aside such settlement, to show a mistake therein, and that, in the absence of proof of any fraud, the relief asked will not be granted, unless proof of a mistake is made by evidence of the clearest and most convincing character. 2. MORTGAGES-RELEASE-PAYMENT OF CONSIDERATION. In a suit for an accounting by a judgment creditor against his debtor's mortgagee, the mortgagor, under a contract with the mortgagee to release any mortgaged lot upon payment to him of $20, is not entitled to a credit of that amount for each lot released at his request, unless it is shown that the mortgagee actually received the money. Bill of discovery. H. M. Snyder, Jr., for complainant. E. B. Leaming, for defendant Cresse. J. J. Crandall, for defendant Five-Mile Beach Improvement Company. BIRD, V. C. The complainant is a judgment creditor of the Five-Mile Beach Improvement Company, one of the defendants in this suit; and this bill is filed to compel a discovery of the assets of that company in the hands of the defendant Cresse. It is claimed that the defendant Cresse owes the Five-Mile Beach Improvement Company, by virtue of certain agreements entered into between him and the company; the amount due being upon a mortgage transaction, as will appear. May 19, 1878, Cresse conveyed to Sperry the real estate on the sea-shore, now owned by the defendant company, and to pay therefor Sperry gave to Cresse a mortgage for $17,000, covering over 900 acres of land, which land was afterwards divided up in small parcels separated by streets and avenues, and designated by numbers, for the purpose of selling the same, and with the view of establishing a sea-side resort upon the Atlantic coast. July 25, 1879, Sperry conveyed the said land to Swope and Lafferty, in fee, subject to the said mortgage. September 24th of that same year, Swope and Lafferty conveyed all of said lands to the defendant company. At the time of the conveyance from Sperry to Swope and Lafferty, it was agreed that the mortgage to Cresse should be reduced to $16,500, and that no interest should be required until January 1, 1880; and it was also agreed that upon the sale of lots the said Cresse should be paid the sum of $20 per lot, upon the receipt of which he should release such lot from the lien of his mortgage. The company was to pay, and Cresse was then to release. The first judgment was recovered November 10, 1882, for $4,283.09; the second, December 31, 1883, for $897.39; the third, October 19, 1885, for $1,280.17; the fourth, September 9, 1886, for $1,291.37. Upon these judgments executions were issued, and returns made thereto nulla bona. On the 10th day of January, 1886, the sheriff sold the defendant's interest in these lands for $200. As intimated, the claim is that the defendant Cresse owes a very large sum of money to the company for lands which have been conveyed to him, or to his wife in his interest, and for other lands which have been conveyed to other parties, and which he has released, and for which he has received the $20 per lot under the agreement, or should have received, but which he has not credited upon the said bond and mortgage, and which he therefore owes to the defendant company. And it is further claimed that, he holding this, and owing the sum of money to the defendant company, and the judgment creditors not having been satisfied in full, they are entitled to have the credits which they claim to be due from Cresse to be paid to them in satisfaction of their judgments. To this end Cresse was called upon to make discovery. He has answered, and sets forth very full statements showing that upon the 20th day of June, 1881, he had a settlement with the said company; and that, at that time, he and the said company investigated all their mutual accounts; and everything existing between them was brought under review. To these statements in his answer he makes oath upon the witness stand, and says that upon that occasion he accepted, by way of payment upon the said mortgage of $16,500, a mortgage for $10,000, from a third person, and credited the same upon the bond and mortgage. To some extent, he is fully confirmed in his statement by Mr. Gummy, an attorney at law, who assisted in the calculations, and was present when the conclusions of the parties were reached, but who did not hear all that transpired between the parties. That there was such settlement is admitted. Indeed, the payment of $10,000 so credited upon the mortgage depends entirely upon that settlement. But it is insisted upon the part of the complainants, and also upon the part of the defendant company, that there was a serious mistake in that settlement. The claim is that prior to that time Mr. Cresse had released a large number of lots, in all 581, for which he received, or ought to have received and should account for, $20 per lot; and that these sums were not accounted for in that settlement. The burden is upon the complainants and the defendant company, who allege that there was this mistake. When all the facts and circumstances are brought before the mind it would seem to be a rational conclusion to say that such mistake, about such a matter, should be very clearly established in order to open the settlement at this distant period of time. It will be observed that this was the principal matter between the parties. There were no large payments made upon this mortgage; indeed, the principal payments made were by way of releases. Observe, again, that one of the particulars which it is said represents the mistake is the sale of 500 lots, which came in the various deals to the possession of said Lafferty, and a part of which he sold to the said defendant Cresse, but which at the time of the sale were not released from the mortgage, because Mr. Swope, the president of the company, and who it is admitted was really the company, refused to have it released at the time of the sale, and so stipulated with Lafferty. And, again, it will be observed, that 81 of these lots were conveyed to the wife, or to the wife and daughter, of the defendant Cresse, and were afterwards by Cresse released to them. Now, I say, it does not seem reasonable, or at all probable, that a man of the intelligence and unquestioned business capacity of Mr. Swope, at the settlement which took place so soon after these transactions, should or could have forgotten them. If any of the transactions which had taken place between him and Cresse, and which undoubtedly entered into that settlement, were present to his mind, of whatever character, whether great or small, I cannot believe that these so significant and so prominent were overlooked or absent from his consideration. It seems to me to be asking a very great deal of the court to believe that such a matter was not considered according to its character and the amount involved therein. These occurrences had taken place within about two years; they were all very few and simple in their character; simple in not being obscure or uncertain or of any doubtful bearing upon the relations of the parties; and consequently it could not be said by a man so competent as Mr. Swope that they were not comprehended. Observe, again, the object of the settlement was to ascertain the amount due upon the mortgage, and to make such payments and reductions as would satisfy Cresse, the holder, and prevent a foreclosure, which was then threatened. It would be preposterous to suppose that when Mr. Swope tells us now that Cresse was driving him to the wall; that he had not his opportunity to insist upon his rights, and in his own behalf would allow $20 a lot on 500 lots, or any similar number involved in the Lafferty transaction, or $20 a lot on the 81 lots involved in the conveyance to his wife and daughter, to pass unobserved, and without claiming a credit therefor, when, under the circumstances, he supposed he was fairly entitled to a credit. I have said the transaction which ended in that settlement was simple in its nature and characteristics. The mortgage was for $16,500; the amount of interest due on the 20th of June, 1881, was comparatively small; $10,000 was paid by way of a mortgage given by a third party, and $500 was paid upon the principal, either before or at the time, reducing the principal of the mortgage to $6,000. Now, what business man can claim that there was the slightest complication or obscurity about such a transaction? Again, I say that under the circumstances, the complainant and the defendant company should be required to come with the clearest and most convincing proofs that the items which they say were omitted were not only omitted from the account, but that Cresse should actually have been charged with them in that settlement. Cresse says, as to the Lafferty transaction, that he received no consideration whatever by way of payment upon the mortgage; nor was any intended to pass to him; nor did the agreement of sale in the slightest respect contemplate that anything should arise from that transaction towards the discharge of the mortgage, as he understood it. He says that Mr. Swope refused, at the time of that transaction, to release or to have released the lots that passed from the company to Lafferty, and stipulated that the releases should not be executed by him (Cresse) until the expiration of a year. He says that Swope did not consent that the releases should be executed, until he (Cresse) had made repeated applications to Swope for that purpose, and each time after Lafferty had been demanding them, when at last Swope instructed him to execute the releases. As to the lots which were conveyed to his wife and daughter, Cresse swears that he paid the full value therefor, and that the $20, which he otherwise would have been entitled to for each lot, the company got the benefit of. These statements of the defendant Cresse are in no sense satisfactorily contradicted or overcome. There is nothing to show that the company paid Cresse the $20 per lot, or that any one else did or had agreed to. It was also gravely urged by the counsel for the defendant company that under the agreement referred to, to the effect that upon the sale of lots $20 of the purchase money was to be paid to Cresse when he should release, until the mortgage was paid, was an appropriation or distribution of the burden upon the several lots into which the company had divided its entire tract; and that Cresse was bound to account for $20 a lot for every lot which he released, whether he received the $20 or not. I can find nothing in the agreement of this binding nature at all. The whole number of lots were several thousand, and perhaps three dollars per lot would have discharged the whole amount due upon the mortgage. And as the case stands before me, the whole matter is between the mortgagor and the mortgagee, or these creditors who stand in the place of the mortgagor; and if the mortgagee saw fit, before the rights of these creditors intervened, to release any given number of lots at the instance of the mortgagor, certainly no one can take exceptions thereto, even though he should release so many that the balance remaining was insufficient to satisfy his lien. But counsel insists that it will be equitable to compel Cresse to pay the $20 per lot, whether there was any mistake or not, for the lots released, or for a certain portion of them. But should he release without a consideration? Has he been paid the $20 in cash? No. Has he received it in land? There is no proof of that. There is not a particle of proof that in any of these conveyances of the title in which Cresse was interested, directly or indirectly, part of the consideration was the payment of $20 to the company by him, or the allowance of that sum, and also a release to the purchaser of his mortgage. It was the duty of the company, under its agreement with Cresse, to pay the $20 to him, and then it became his duty to release. The company could not compel a release except on the payment of $20; but the parties to that agreement could modify its terms, so as to allow the full value of the lots (the entire consideration money at least) to be paid to the company, and Cresse release without the $20; and this Cresse swears was the case in the sale of the lots to him when the deeds were made to his wife and daughter. Again, who sold the lots? The company; not Cresse. Who fixed the price? The company; not Cresse. Who made the agreement as to how or to whom the consideration money should be paid? The company; not Cresse. Who received the consideration money, except the $20? The company, of course; not Cresse. And when, upon the sale of lots, it was agreed that the purchaser should pay the $20 to Cresse, and demand his release, it was so done; and there is no proof of any agreements that placed Cresse under the slightest obligations to release without the payment of the cash. Nor is there the slightest evidence from any one that Lafferty was to pay Cresse $20 per lot, or that Cresse was to release without any consideration, and give a credit on the mortgage, the same as though he had received the $20 per lot. The company does not pretend to say that when it sold to Lafferty, it did not receive the full consideration by $20; does not claim that $20 was kept back to pay to Cresse to procure the release. Nor does Lafferty say any such thing. Then, wherein would be the equity in compelling Cresse to allow for that which he has not had an equivalent? Should he suffer for that which another bargained away? And if Lafferty had a good bargain, and conveyed some of his lots to Cresse, can the court say there is any wrong or fraud in the transaction, until there be some proof of it? He had as good a right to sell to Cresse as to any other person. The company held the title, and had it all the while in their power to give direction to every change; imposing what qualifications or conditions or consideration it desired. Now, can this court impose a new qualification, condition, or consideration? Courts do not make agreements. Courts often set aside agreements for fraud, and often say that a grossly inadequate price is a fraud; but, as I have stated, none of the elements relied upon in such cases have been proved. As I can find nothing in the case to justify me in coming to the conclusion that Cresse has been paid in excess of the amount due on his mortgage, and, therefore, that he is not obliged to account to the complainants, I will advise that the bill be dismissed, with costs. STATE (ROSSELL, Prosecutor) v. GARON. INTOXICATING LIQUORS-POWER TO LICENSE DOES NOT INCLUDE POWER TO PROHIBIT The mere power given to the borough of Pemberton to license lager-beer saloons does not carry with it by implication the right to prohibit absolutely the sale of beer by the quart. (Syllabus by the Court.) On certiorari. Argued at November term, 1887, before Justices DEPUE, VAN SYCKEL, and KNAPP. J. C. Hendrickson, for plaintiff. Mark R. Sooy, for defendant. VAN SYCKEL J. The relator was convicted of violating an ordinance of the borough of Pemberton, which forbids the sale of lager-beer in any quantity. The act of 1871, p. 1517, § 6, gives Pemberton the power to license inns and lager-beer saloons. The offense imputed to the prosecutor consisted in selling beer by the quart. In Hershoff v. Beverly, 45 N. J. Law, 288, and Staats v. Washington, Id. 321, this court held that a power to license places for the sale of fermented liquors, granted to a city where such places were unrestrained by general law, coupled with the general power to pass ordinances for promoting the peace and good order of the city, justifies an ordinance which forbids any sale of such liquors in unlicensed places. There is no general power conferred upon the borough of Pemberton to pass ordinances for promoting the peace and good order of the borough. The mere power to license lager-beer saloons does not carry with it by implication the right to prohibit absolutely the sale of lager-beer by the quart. The general law of April 4, 1872, (Revision, 494, pl. 52,) provides that it shall not be lawful to sell lager-beer in less quantity than a quart, without a license first had for that purpose from the judges of the court of common pleas of the county, or from the other authorities now having power by law to grant license. Where, therefore, the special authority granted to the municipality is merely to license lager-beer saloons, the inference from the general law is very decided that the special power is limited to the licensing to sell by less quantity than one quart. The conviction should be set aside. STATE (RAHWAY SAV. INST., Prosecutor) v. COMMON COUNCIL OF THE CITY OF RAHWAY. (Supreme Court of New Jersey. February 27, 1888.) MANDAMUS-FAilure to Obey-Arrangement BETWEEN PARTIES. The operation of a mandamus against the city council being arrested after its service, by an arrangement made between the council and the party obtaining the mandamus, the council will not be attached for failing to obey the mandamus. (Syllabus by the Court.) Application to attach for contempt. Argued at November term, 1887, before Justices DEPUE, VAN SYCKEL, and KNAPP. B. A. Vail, for relator. Garret Berry, for defendant. VAN SYCKEL, J. On the 10th day of May, 1887, this court sent a mandamus to the common council of the city of Rahway commanding that the sum of $5,000 be put in the tax levy for that year to pay to the Rahway Savings Institution the interest on the water-bonds held by it. The mandamns was duly served June 16, 1887. On the 9th of June the savings bank made to the city council an offer of compromise on the said bonds, conceding a very material reduction in the accrued interest, and a reduction of the future interest from 7 to 4 per cent. per annum. The common council agreed to accept this proposition in a modified form, and on the 5th of July ordered that adjustment bonds of the city be issued to effect the compromise. On the 12th day of July the common council received from the savings bank a written communication, stating that the chancellor had appointed a master to ascertain and report whether it was advisable for the bank to compromise the water-bonds of the city, and that until such report was made it would be improper for the bank to make or entertain any offer of compromise, wherefore the common council would consider the offer of June the 9th withdrawn. After the service of the mandamus, the common council passed the tax ordinance, without including in it the aforesaid sum of $5,000, or any part thereof. On the 25th of July the members of the common council were ordered to show cause why they should not be attached for contempt in refusing to obey the mandamus. The application now is for such attachment. It seems clear to us that this application must be denied. After the service of the mandatory writ of this court, the relators intervened, and arrested its operation by submitting a proposition for amicable adjustment. That arrangement, if consummated, would have rendered compliance with the mandate of this court unnecessary. The matter remained for some time in the course of negotiation, and although the notice of July 12th withdrew the offer of compromise, the common council had a right to infer from the language of the |