LEAMING, V. C. The primary question in this suit is one of jurisdiction. went against Goldner and levied on the mer- Theo. W. Schimpf and Wm. Elmer Brown, chandise, the subject of the sale, and also | Jr., both of Atlantic City, for the defendants. filed this bill to compel the defendants to discover the articles sold, the terms of sale, and the amount of purchase price remaining unpaid; that defendants be decreed to pay the judgment, and for an injunction to restrain the payment of the unpaid purchase price. The present motion is for a temporary injunction restraining the payment of the balance of the purchase price. The motion must be denied. [1] An ordinance of complainant municipality forbids the erection of buildings within specified distances of the side lines of lots, and provides a penalty for its violation. The provisions of the ordinance may be conceded to be reasonable and consistent with its purpose to afford protection against fire. compel defendant to remove the offending part of the structure. The want of jurisdiction of a court of equity to award to the municipality the relief sought would seem almost too well settled to [1-3] A sale in bulk is void as to crediDefendant has clearly violated the orditors unless the provisions of the act are nance. By the bill filed herein the municipalcomplied with, but this does not give credi-ity seeks mandatory relief by injunction to tors a claim upon the purchase price. The act implies that, the sale being void, creditors have a remedy at law and in equity; that is, as I take it, creditors may execute their judgment at law by a levy and sale of the goods, or, if unable to execute the judg-warrant extended discussion. ment by a levy and sale, they may cause the The structure complained of is not a nuiswrit to be returned nulla bona, and proceedance in itself. It is a structure erected by in equity against the purchaser for the value of the goods, exactly as if the goods had been transferred without consideration, with intent to cheat and defraud creditors. The bill may be amended to charge Isaacson, the purchaser, with the value of the goods. defendant upon his own land, which, but for the ordinance, would be a lawful use which he could make of his own property without invasion of the rights of others. The structure can only be considered unlawful or as in the nature of a nuisance because it is violative of the terms of the municipal ordi nance. The situation thus presented is purely an appeal by a municipality to a court of equity for the enforcement of its ordinance by process of injunction. It can probably be asserted with a reasonable degree of confidence that no authority can be found in this state or elsewhere affording substantial support to complainant's claim. The precise question here presented has been before the courts of our sister states repeatedly and with apparent uniformity resolved against the jurisdiction of a court of equity to intervene in behalf of the munici A mandatory injunction will not be issued to require the removal of a structure built by defendants on their own lots, but closer to the lot line than permitted by the municipal ordinance, even though the ordinance is a rea-pality in such circumstances. Town of Rochsonable one to afford protection against fire, since, except for the ordinance, the structure was a lawful one, and not a nuisance, and the purpose of the injunction was only to enforce the ordinance. 2. Injunction 102-Issues to enforce penal law or ordinance only if act thereby restrained is a nuisance. Equity will not enforce the penal laws of the state or the ordinances of municipal corporations by injunction unless the act sought to be restrained is a nuisance. ester v. Walters, 27 Ind. App. 194, 60 N. E. 1101; Mt. Vernon Nat. Bk. v. Sarlls, 129 Ind. 201, 28 N. E. 434, 13 L. R. A. 481, 28 Am. St. Rep. 185; Kaufman v. Stein, 138 Ind. 49, 37 N. E. 333, 46 Am. St. Rep. 368; Hudson v. Thorne, 7 Paige (N. Y.) 261; Mayor of Manchester v. Smyth, 64 N. H. 380, 10 Atl. 700; Village of St. John v. McFarlan, 33 Mich. 72, 20 Am. Rep. 671; Village of Waupun v. Moore, 34 Wis. 450, 17 Am. Rep. 446. In the case last cited the ordinance specifically provided that it should be enforced by injunction. Suit by Ventnor City against J. Harry Ful[2] The general doctrine is, as tersely statmer and others for a mandatory injunctioned in Hudson v. Thorne, supra, that “it is to compel removal of a structure which violated a city ordinance. On final hearing. Decree advised dismissing the bill. John S. Westcott and Harry R. Coulomb, both of Atlantic City, for complainant. no part of the business of this court to enforce the penal laws of the state, or the bylaws of a [municipal] corporation by injunction, unless the act sought to be restrained is a nuisance." This statement of the rule is (113 A.) in harmony with the decisions in this state. ¡ cribwork and a dike extending from the ocean Green v. Piper, 80 N. J. Eq. 288, and cases along the river to fast land at what is callcited on page 290, 84 Atl. 194. ed "Stump Point," near the mouth of "Short A decree will be advised dismissing the bill. creek." All the waters are tidal waters. At that time there was what is called a lagoon to the north of the dike, lying west of the beach and flowed by the tide. The cribwork was partly in the ocean; the dike was largely in the tidewater of the inlet and of the river and partly on the sand or sedge land. Between the dike and the sand flowed the tidal water of the river and inlet. The effect of the dike was to make land to the north, and the lagoon filled up. In course of time the dike became much out of repair, the planking was torn off, and the water began to carry away the land back of it and to the north. The government failed to care for the dike. The tidewater lying between the land and the dike increased in width, becoming in 1913 at one point to the west of the 2. States 12(2)-Effect of erosion and ac- cribwork more than 60 feet wide and increascretion on domain of state defined. Erosion along tidal waters extends the domain of the state; accretion narrows the domain of the state and must be limited in ac cordance with the statutes. 3. Mortgages 194-Mortgagee in possession cannot charge mortgagor for unlawful expenditures to acquire title to land not covered by mortgage. A mortgagee in possession cannot charge a mortgagor with money unlawfully spent in an effort to acquire title, contrary to law, to land not covered by the mortgage, from which mortgagor or mortgagee may at once be legally ejected. 4. Mortgages 202-Mortgagee reclaiming tidal land held not entitled to charge costs to mortgagor. A mortgagee in possession reclaimed tidal land by repairing a dike of the United States government and filling in between the dike and the fast land. Held, that he could not charge the cost to the mortgagor. Appeal from Court of Chancery. Suits by the Seacoast Real Estate Company against the American Timber Company and others. Decree for defendants (89 N. J. Eq. 293, 104 Atl. 437), and complainant appeals. Affirmed as to case No. 73. Reversed as to case No. 5. This is a foreclosure. The conveyances are deeds in form, but are admitted to be mortgages. The complainants were mortgagees in possession and concede their liability to account. The only questions argued in this court relate to the accounting. The difficulty arises out of the peculiar character of the mortgaged property. It is situated along the Atlantic Ocean and Manasquan river at Manasquan Inlet. It was and is subject to the inroads of the sea and river. ing in width going westward toward "Stump Point." The map shows tidewater between the dike and the mortgaged premises substantially all the way from the crib to the mouth of "Short creek" opposite "Stump Point." At any rate the tidewater separated the dike from the mortgaged premises much of this distance of $1,000 feet or more. The mortgagee went into possession in 1912, and in 1914 spent several thousand dollars in repairing the dike. This expenditure proved worthless as the work was destroyed by severe storms. In 1915 repairs were again made to the dike which seem to have been of more permanent benefit. These cost several thousand dollars. The amount due on the mortgage before the repairs was $15,000. The repairs of the two years, if allowed, add $18,000. The Vice Chancellor allowed the cost of the repairs in 1915, but denied the cost of those of 1914. Edmund Wilson, of Red Bank (Durand, Ivins & Carton, of Asbury Park, and John D. McMullin, of Moorestown, on the brief), for appellant. Martin V. Bergen, of Camden (DeWitt C. Robinson, of Philadelphia, Pa., on the brief), for appellees. SWAYZE, J. [1, 2] We pass over the questions discussed by the learned Vice Chancellor and ably argued by counsel whether the scheme of repairing the government dike was well advised and well planned and whether the repairs of 1914 were well executed. We pass over also the interesting question whether what was done was merely by way of repairs to the mortgaged premises, or whether it was an improvement, with the sole remark that, where the question arises In 1882 the United States government, in with reference to riparian lands, and the eforder to make a better outlet for the river fect of the work is to make new land by way and confine it within definite bounds, built of preservation of the present area or by of what would otherwise have been tidal land of the state, it subjected the mortgagees in the present case to an action of ejectment. The state's title cannot be acquired in that way. The land remains the property of the state until acquired by the statutory method. [3, 4] The question presented therefore is the narrow one whether a mortgagee in possession can charge a mortgagor with money unlawfully spent in an effort to acquire title contrary to law to land not covered by the mortgage, from which the mortgagor or mortgagee may at once be legally ejected. It is too plain for argument that the mortgagor can, at most, only be charged with lawful expenditures of the mortgagee, and cannot be charged with the cost of a tortious attempt, at best speculative, to acquire land adverse to the state itself. The courts cannot be expected to lend their aid to deprive the government which has created them of its property when seized by force and without right. Whether or not some of the property seized was already upland is of no moment when it comes to the tidal land. The dike was a single whole; like a chain, the failure of a link destroys its value. The cost of the work, whether that of 1914 or that of 1915, is not chargeable to the mortgagor. Let the decree be reversed, with costs in this court, and the record remitted to the court of chancery for further proceedings in accordance with this opinion. way of filling in, either by human labor or [ der the circumstances of this case may be a by natural forces, it is difficult to say that question. It seems to have been without what is done is reparation. The addition of warrant from the federal government and new land increasing the area can hardly be was an unlawful interference with its propother than an improvement. A riparian own-erty. So far as it resulted in making land er is subject to loss by erosion and is supposed to be compensated by gain from accretion; but the erosion is by natural forces without artificial aid, and the accretion, except as regulated by statute, must be also by natural forces or by lawful acts. Otherwise there would be no limit but the length of the riparian owner's purse. It is for this reason, among others, that the accretion ordinarily must be by imperceptible quantities. Erosion along tidal waters extends the domain of the state; accretion narrows the domain of the state, and must be limited in accordance with the statutes. The state has made provision for the artificial extension of the land of the riparian owner. After the decision in Gough v. Bell, 22 N. J. Law, 441, the Legislature regulated the acquisition of tidal land, by filling in or docking out, in the Wharf Act of 1851 (P. L. p. 335). Subsequently it became important that the matter should be controlled by the Riparian Commissioners, and in 1891 the Wharf Act was repealed, and the matter regulated by an amendment of the Riparian Act (P. L. 1891, 216; C. S. 4385, pl. 10). This amendment enacted that “without grant or permission of said commissioners no person or corporation shall fill in, build upon or make any erection on or reclaim any of the lands under the tidewaters of this state." Then follows a provision as to abatement of any purpresture by the Court of Chancery or by in dictment. Section 12 of the supplement of 1869 to the original riparian act, now printed as placitum 19 on page 4389 of the Compiled Statutes, authorizes the Riparian Conmissioners to bring ejectment in the name of the state against persons and corporations trespassing upon or occupying the lands of the state under water or heretofore under water. No riparian grant is shown in this case. The case presents the situation of a wrongful seizure of lands of the state for the purpose of extending the lands of the riparian owner. But for the fact that the repairs were made to a structure placed in tide water by the federal government for the improvement of navigation, the repairs would be a purpresture. Although the federal government had the right to build the dike, the state still retained its title to the submerged soil subject to the servitude in respect of navigation, created in favor of the federal government by the Constitution. South Carolina v. Georgia, 93 U. S. 4, 23 L. Ed. 782; Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331; Gibson v. United States, 166 U. S. 269, 17 Sup. Ct. 578, 41 L. Ed. 996. Citations can readily be multiplied. Whether As to the costs and counsel fees, there is a difficulty. The complainant succeeds in its foreclosure, and to some extent is entitled to costs. It fails on the main question litigated, and ought not to be allowed the additional costs and counsel fees made necessary by the accounting. We are in no position in this court to make an equitable decree as to the costs in the Court of Chancery. The question can readily be solved by the Chancellor. What we have said controls the decision on the appeal of the Seacoast Real Estate Company, which is not aggrieved by the decree. No. 5: For affirmance-BERGEN, KALISCH and WHITE, JJ. For reversal-The CHIEF JUSTICE, and SWAYZE, TRENCHARD, MINTURN, BLACK, KATZENBACH, HEPPENHEIMER, WILLIAMS, TAYLOR, and ACKERSON, JJ. No. 73: For affirmance-The CHIEF JUSTICE and SWAYZE, TRENCHARD, BERGEN, MINTURN, BLACK, KATZENBACH, HEPPENHEIMER, WILLIAMS, TAYLOR, and ACKERSON. For reversal-KALISCH, (113 A.) (95 N. J. Law, 308) Syllabus by the Court.) Constitutional law 206(7), 247-Insurance 2, 4, 5-Contract for indemnity between subscribers to automobile insurance held "insurance contract"; indemnity company doing "insurance business" held to violate state insurance laws; enforcement of penalty for violation of insurance laws held not a violation of constitutional provisions. er representatives of whatever designation, nor any such broker, agent, solicitor, surveyor, canvasser or other representative, shall solicit, negotiate or effect any contract of insurance of any kind, including all kinds of insurance described in this act, or sign, deliver or transmit, by mail or otherwise, any policy, certificate of membership or certificate of renewal thereof, or receive any premium, commission, fee or other payment thereon, on any property or thing, or on the life, health or safety of any person, or in any manner, directly or indirectly, transact the business of insurance of any kind whatsoever, within this state, unless such company, person or firm, shall be author A contract made by the New Jersey Indem-ized to do the same under the provisions of the nity Company as so-called attorney in fact of laws of this state." certain "subscribers" to automobile insurance, whereby the company becomes the medium by The state of demand charged that the which each subscriber fulfilled his obligation to defendant, during the month of July, 1919, indemnify each of his fellow subscribers who suffered a loss and received from each of his at the city of Newark, N. J., did solicit and fellow subscribers the indemnity to which he effect contracts of insurance, and did sign was entitled, examined, and held to be a conand deliver the policies, and did receive tract of insurance by the New Jersey Indem- premiums and other payments thereon, for nity Company, acting not as agent for the sub-insurance on property and things and safety scribers, but as an insurance company; and of persons, and did directly and indirectly it appearing that the company was thus doing transact the business of insurance within a state-wide business with the public generally, this state without being authorized to do the it is held, also, that the company was engaged same under the provisions of the laws of in the insurance business in violation of secthis state. tion 88 of the General Insurance Act (chapter 134 of Laws of 1902; 2 Comp. St. 1910, p. The court below found the defendant guil2867); and it is further held, that the enforce-ty, upon proof of its having effected insurment of the penalty provided for in section 89 ance on motor cars by means of advertiseof the act for a violation of section 88 does ments, applications, and policies hereinafter not violate the Fourteenth Amendment of the more particularly described. We are of the Constitution of the United States nor paragraph I of the Constitution of the state of New Jer- opinion that the judgment is right. sey. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Insurance Business.] Appeal from District Court of Newark. Action by the State against the New Jersey Indemnity Company for a penalty. From a judgment for plaintiff, defendant appeals. Affirmed. Argued November term, 1920, before TRENCHARD and MINTURN, JJ. Merritt Lane, of Newark, for appellant. Thomas F. McCran, Atty. Gen., and William Newcorn, Asst. Atty. Gen., for the State. The defendant first contends that it was not engaged in the insurance business within the meaning of the statute. We are constrained to think that it was. The defendant was incorporated under the General Corporation Act (Revision of 1896; 2 Comp. St. 1910, p. 1592). Its certificate of incorporation discloses that among its objects is that of soliciting insurance. Of course, under its charter it could not conduct an insurance business. The power granted to it is to solicit business as an agent or broker, and, under the provisions of the General Insurance Act, it could not place the same except in an insurance company possessing a certificate of authority to do business within this state. Now the evidence shows that through the mails, and by advertisements in newspapers of state-wide and general circulation, it appealed to the general public for business. Under the plan set forth in the advertisements, an application, agreement, and power of attorney to the defendant were executed by the "subscriber," who, in fact, was an applicant for insurance, and a deposit was Section 88 is as follows: made by him of "approximately the same "No person or firm nor any company organiz-amount he would pay to a stock company ed under the laws of this state or of any other for the same insurance." As a result of the state or foreign country, himself, itself, or application and deposit, a policy was issued theirselves, or by his, its or their brokers, to the applicant, who paid the premium there agents, solicitors, surveyors, canvassers or oth-for. The deposit (says the advertisement)— TRENCHARD, J. This is the appeal of the New Jersey Indemnity Company from a judgment against it in the District Court in favor of the state, for the penalty of $500 provided for by section 89 of the General Insurance Act (chapter 134 of Laws 1902; C. S. p. 2867) for a violation of section 88 of the act. The policy concludes with an attestation that the subscribers to Motor Car Underwriters at New Jersey Indemnity Exchange have caused these presents to be signed by their attorney, and then follows the signature, "New Jersey Indemnity Company, Attorney in Fact, by E. M. Carroll, President." There is nothing in the policy to indicate whether the Motor Car Underwriters at New Jersey Indemnity Exchange is a person, corporation or a partnership. Without going into greater detail, we regard it as settled that the contract thus put in evidence was a contract of insurance. A contract exactly like the one in question was considered by this court in Solomon v. New Jersey Indemnity Co., 110 Atl. 813, and respecting it the court said: An inspection of the applications and the policies proved at the trial discloses that the unnamed "subscribers to Motor Car Underwriters at New Jersey Indemnity Exchange" severally agree to indemnify the subscriber named therein against certain specified losses, the amount of which shall be ascertained by the subscriber and the attorney (i. e., the attorney in fact), or, if they differ, by two appraisers, one named by the attorney and one by the subscriber. In the event of their disagreement an umpire is to be chosen, and the award in writing of two appraisers or an appraiser and "Looking at all these provisions [in the polthe umpire is to fix and determine the amount icy] in a broad way, to reach the real intent of the damage. The Exchange and the sub- of the parties and not merely with grammatical, scriber are each to pay his own appraiser rhetorical, or even legal nicety, although these and to bear equally the other expenses of support the same view, we think the contract the appraisers and the umpire. No suit is was meant to be a contract of insurance by the to be brought until this condition has been New Jersey Indemnity Company, acting not as agent for the subscribers, but as an insurcomplied with. Upon payment of any loss ance company, in which the subscribers were inthe Exchange is to be subrogated to the ex-terested pretty much as stockholders, liable to tent of the loss to all rights of recovery by contribute a certain amount by way of subthe subscriber. The Exchange may take over scription to the liability of the indemnity comand conduct, in the name of the subscriber, pany from time to time to the extent of a prothe defense or prosecution of any claim or portionate share of each separate loss as it suit for indemnity, damages or otherwise, occurred, and limited to an obligation to pay against any third person. The contract may forth in paragraph 'O' of the policy. In this the proportion of the aggregate liability as set be canceled by either party upon five days' view the New Jersey Indemnity Company is prior written notice to the other. Notice of the medium by which each subscriber fulfilled cancellation mailed by either party to the his obligation to indemnify each of his fellow others' address is declared to be sufficient subscribers who suffered a loss, and received notice. No action by a subscriber shall lie from each of his fellow subscribers the indemagainst the attorney or any of the subscribers nity to which he was entitled. The case differs at the Exchange to recover for any loss unfrom a Lloyds policy such as was before us in the Enterprise Lumber Company Case in that he underwrote; here there must be an ascerthere each underwriter specified the amount tainment of each subscriber's proportion of the aggregate liability; to ascertain that proportion there must be some machinery. We can find none provided unless it is the New Jersey Indemnity Company, the insurer, backed by the obligation of the subscriber to put it in der the contract unless brought by the subscriber himself. To avoid a multiplicity of suits, no suit or other proceeding at law or in equity was to be maintained for the re covery of any claim upon, under, or by virtue of the contract, against more than one of the subscribers. Each subscriber agrees to accept and abide by the result as if he had been sole defendant in a similar suit or proceeding. The attorney is authorized to retain 25 per cent. of the money paid in by the policy holder, and is also authorized to receive and admit service of process. The policy declares that: "The subscribers at the Motor Car Underwriters, herein called Exchange, are individuals, firms, and corporations that have each executed an agreement (hereby made a part hereof) which vests in the New Jersey Indemnity Company, herein called Attorney, power to issue the contract for them. It is understood and agreed that there is assumed by each subscriber, as if a separate contract were issued therefor, a sum which is the same proportion of the aggregate liability hereunder that each subscriber's advances bear to the aggregate of all subscribers' advances under all contracts in funds." Errors and Appeals February 28, 1921, on the opinion in the court below. 113 Atl. 927. And that case was affirmed in the Court of The defendant, however, insists that, if it is engaged in the insurance business, it is authorized so to do, because, it contends, section 88 does not apply to inter-indemnity or reciprocal insurance of the character in question. But we cannot yield to that contention. We think it clear that section 88 of the act was intended by the Legislature to reach, and did reach, the kind of the "business of insurance" represented by the contract in question. This view is supported by the title of the act which is— "An Act to provide for the regulation and in |