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Mr. Arthur II. Bissell and Mr. Edward J. Shumway (of the New York bar), on the brief, for the appellants.
Mr. Charles R. Snyder, for the respondent.
The single ground of appeal, set out in the appellants' petition, is that the decree is erroneous, in that it “directs that an execution issue to the sheriff of the county of Monmouth to make sale of the mortgaged premises to raise and pay to the complainant the sum of $2,000, with interest" and costs. No attack is made by the petition upon that part of the decree which adjudicates the respective rights and obligations of the parties under the mortgage. Only errors alleged in the petition of appeal are before this court for consideration. Consequently, most of the matters discussed by counsel in their briefs cannot be decided by us.
We find no error in that part of the decree which is attacked by the appellant's petition, and concur in the opinion of the learned vice-chancellor so far as it deals therewith.
The decree under review will be affirmed.
For affirmance-THE CHIEF JUSTICE, GARRISON, SWAYZE, TRENCILARD, PARKER; BERGEN, VOORHEES, MIXTURN, BOGERT, VREDENBURGH, Vroom, DiLL, CONGDON-13.
AMENDMENTS-Under chancery rule 71, providing that when a
complainant shall amend his bill, which bas been sworn to no
alteration shall be made in the original bill on file. but the
amended bill shall be engrossed anew, sworn to, filed, and an-
nexed to the original bill unless the court shall otherwise order,
complainant having filed a sworn bill for an injunction, and a
temporary injunction having been denied because of an alleged
defect in the bill and proof, with the suggestion that the bill be
amended, complainant was not entitled to leave to alter the char-
acter of the bill by making unsworn additions thereto. SCHULER
v. SOUTHERN IRON AND STEEL Co.....
APPEAI-1. Rulings of a receiver upon the validity of the claims
of creditors submitted may be reviewed by the court which
appointed him, although no appeal to the court is taken upon
such ruling. SCHLICHER 1. TRENTOX, L. & A. Rwy. Co........ 258
2. A decree giving affirmative relief to defendant on
answer alone will not be reversed on appeal merely because a
cross-bill was not filed, where the case was fully tried on the
merits and the evidence warrants the decree. RICHARDS v.
ASSIGNMENTS-1. A stipulation of a contract awarding to a
person the right to collect and remove the garbage of a city for
a specified sum that no assignment of the contract or any part
thereof shall be made without the consent of the city first
obtained tends to discourage collusion among probable bidders,
and to prevent extortionate contracts from being forced on the
city; and equity will not deprive a municipality of the proter-
tion of such a stipulation by compelling the performance of a
prior contract between such person and others for the carrying
on of the contract as a partnership. DElita v. LOPRETE...... 533
2. Where a person has entered into two independent contracts
with different persons, each valid and enforceable, equity will
not compel him to violate provisions of one of the contracts to
the injury of the other party thereto for the purpose of affording
relief under the other contract. II....
See MUNICIPAL LIES CLAIMS,
BANKRI'PTCY-Bankruptcy act, July 1st, 1898, ch. 541 $ 700 (5),
30 Stat. 565 (U. S. ('omp. St. 1901 p. 3451). vests in the trus-
tee in bankruptcy title to all property of the bankrupt which,
prior to the filing of the petition, might have been levied on and
sold by judicial process against him.-Held, that such section
entitles the trustee, if representing creditors, to attack the valid-
ity of chattel mortgages on property which under the state
statutes, could have been levied on by creditors. EARLE .
NATIONAL METALLURGIC Co...
BENEVOLENT AND CHARITABLE CORPORATIONS-1. In
the absence of statutory authority a benevolent and charitable
corporation has no power, by the action of its stockholders and
directors, or either, to voluntarily dissolve itself. SUMNER
LODGE 1. ODD FELLOWS HOME.....
2. A corporation organized for benevolent and charitable
purposes could not, under the act incorporating it, use its funds
in any other manner except as provided in the act. Its certifi-
cate of incorporation stated that its sole object was the relief
of indigent aged. or disabled members, and its constitution
recited that its purpose was to purchase a home for and to
support aged and indigent Odd Fellows in the manner the
by-laws prescribed. The by-laws prescribed that any lodge or
encampment of the Independent Order of Odd Fellows might
become a member by paying one cent a week for each of its
members and that such lodge or encampment had the privilege
of applying for the admission of inmates, &c. The by-laws
further provided that donations should be invested and only the
interest used for maintenance. Subsequently the land and home
were sold and the proceeds added to the donation fund.--Held,
that whether or not the corporation had power to become dis-
solved by voluntary action, such funds could not be distributed
among its members. Id....
BILL OF REVIEW–1. l'pon a petition for leave to file a bill of
review in a suit for alimony under the Divorce act, setting
forth among other things, that the final decree theretofore
entered therein (npwards of three years before the filing
such petition) was void upon its face for the reason that it
discloses that it was entered upon and wholly by reason of a
stipulation made in open court, and not upon the testimony of
witnesses examined in the cause—IIeld. (1) that if such decree
is void upon its face, no leave of court is necessary to file a
bill of review; and (2) that such contention cannot be sus-
tained. ADAMS 1. ADAMS.
Such decree is not in any sense a decree for divorce, but
is merely money decree authorized by the statute in any case
where a husband abandons his wife or separates himself from
BILL OF REVIEW-Continued.
her, and refuses and neglects to maintain and provide for her.
3. When in such case a defendant, in open court, consents
to the entering of a decree for the payment of alimony, he con-
fesses the truth of the averments of the bill, and the decree will
be supported to whatever extent it is justified by the averments
of the bill. Id......
4. Leave of the court to file a bill of review is necessary only
when new evidence has been discovered, and none being sug-
gested, in the absence thereof, a bill of review. unless it attacks
a decree as void on its face, must be filed within the period for
taking appeals from final decrees. Id....
5. The present petition alleging that the defendant is unable
at the time of the filing thereof to pay the amount which the
decree requires will be entertained as a petition for a modifica-
tion of the decree. Id.....
6. — A counter motion being made by the complainant for the
enforcement of the decree in respect of alimony in arrears under
the decree, the bringing such petition to a hearing will only be
allowed upon the terms of payment by the petitioner of all such
arrearages, in default of which proceedings for contempt will
7. To justify a bill of review on the discovery of new matter,
it must appear not only that the matter is new, but that the
party could not have known thereof before the trial by the use
of reasonable diligence. RICHIARDS 1. SIIAW.
BILLS AND XOTES—Where a note was an accommodation paper
as between the maker and pavee, a third person seeking to hold
the maker on the note has the burden of proving that he gave
consideration for the note. RICHARDS 19. SHAW....
BOYCOTTS AND STRIKES-1. An injunction sustained, restrain-
ing defendants from using either coercion or persuasion in order
to bring about breaches of the contracts of personal service
existing between complainant and its employes. JONAS GLASS
(o. 1. GLASS BOTTLE BLOWERS' Ass'x....
An injunction sustained against like conduct having for its
object and purpose the termination of the relation of master and
servant existing between complainant and its employes in cases
where there was no binding contract of service, but a mere serv-
ice at will. Id......
An injunction sustained, restraining defendants from inter-
fering. by coercion or personal molestation and annoyance, to