In all matters of account in equity, it is the peculiar right of the par- ty who seeks the account, to examine the accountant under oath, and thereby test his conscience as to facts and circumstances material to the investigation of truth and the ends of justice. Jakson v. Jack. son's Ex'rs,
Vide EXECUTORS AND ADMINISTRATORS, 15-17, 22.
ADMINISTRATION. Vide EXECUTORS AND ADMINISTRATORS.'
ADMINISTRATOR. Vide EXECUTORS AND ADMINISTRATORS.
ADVERSE ENJOYMENT. Vide WATER COURSE, 3:
AFFIDAVITS. Vide PRACTICE, III.
1. Equity will not lend its aid to carry into effect an imperfect or doubt. ful agreement. Robeson v. Hornbaker, 60 2. The general rule is, that every agreement of which there should be a specific performance, ought to be in writing, certain and fair in all its parts, and for adequate consideration. ib. 3. The court will not refuse its decree for specific performance, merely because the agreement doth not state in what township, county or state the lands agreed to be conveyed, lie, provided the description of the premises is not thereby rendered altogether indefinite.
ib. 4. Reasonable certainty in the description is all that is required; and it is not material in what way the requisite certainty is attained. ib. 5. The agreement of a feme covert, with the assent of her husband, for the sale of her real estate, is absolutely void at law, and courts of equity never enforce such a contract against her. Wooden v. Mor- ris,
6. A decree for the specific performance of a contract, will not be re- fused on the ground that the purchaser was intoxicated at the time of the sale, unless it appear that such intoxication was produced or procured by the vendor, or that an undue advantage had been taken
of the situation of the purchaser. Pittenger's Adm'r v. Pitten-
AMENDMENT. Vide PLEADING, 16.
ANSWER. Vide PLEADING, III.
APPEAL. Vide ORPHANS' COURT, 6.
ASSIGNMENT AND ASSIGNEE.
1. If a debtor execute an assignment under the statute of New-Jersey, for the benefit of his creditors, annex thereto an inventory of his property and a list of his creditors under oath, and deliver it to the assignee, who receives is, understanding its objects and effect; the act of the assignor is complete, and he is divested of his estate, al- though the deed were not acknowledged. A trust is created, and the beneficial interest vested in the creditors, the cestui que trusts, though they knew nothing of it. Scull v. Reeves,
2. There is no particular formality necessary to the acceptance of a trust. If a person actually consent, or if he go to the property and exercise any power or right over it, it may be considered an accept- ance, and especially when the rights of third persons are interest. ed. ib. 3. It is not necessary that there should be an actual consent either in writing or by parol; acts fairly implying a consent are sufficient. ib.
4. An assignee is at liberty to refuse to act: no man can be made a grantee against his will. ib. 5. If one of two assignees refuses to act, the trust is not thereby de. stroyed, but the whole estate vests in the other, and he alone is com. petent to execute the trust.
6. If the deed of assignment be executed and delivered, and the trust accepted, the trustee cannot, by surrendering or cancelling the deed, destroy the trust, or impair the rights of the cestui que trusts. ib. 7. If a deed made by a debtor for the benefit of his creditors, has once taken effect, the cancellation or destruction of the deed, either frau- dulent or accidental, cannot affect the rights of the parties; nor has the grantor power to revoke it. Scull v. Reeves,
8. The fact that one of the assignees renounced in writing, and that the other one relinquished the trust by giving up the deed of assign- ment, presents no serious obstacle to the execution of the trust. It is in the hands of the court, to be executed under its direction, ac- cording to the law and the intention of the parties, and the court will see that it is properly done.
9. That the grantor was under some misapprehension as to the mode and time of making sale of his property, and that he was ignorant of some of the requirements of the statute and the duties of the as- signees, will not operate to set aside the dee d ib.
10. The trust will be carried into effect, although a compliance with all the directions of the statute, in regard to the proceedings of the assignce, as to matters rather of form than substance, is impracti- cable. ib.
11. An assignment by operation of law passes the rights of an insolvent in the same plight and condition that he possessed them. Van Doren v. Todd,
Vide LEGACY, 1. MORTGAGE, II. VENDOR AND PURCHASER, 11, 12.
BANKS. Vide CORPORATIONS, 1-10.
CANCELLATION. Vide ASSIGNMENT AND ASSIGNEE, 6, 7.
CAPACITY. Vide TESTAMENTARY CAPACITY.
1. Where the first election of directors of a bank is authorized to be held upon a call made by commissioners appointed by the act, it is not essential that the call should be the result of any formal order of the commissioners. Hardenburg v. Farmers and Mechanics' Bank of New-Brunswick, 68
2. Where the original notice is in the hand-writing of the secretary of the commissioners, he being one of them, and the names of the oth. er commissioners are signed by him, if the notice is published and in no way disavowed by the commissioners, it will be deened their ib. 3. After the organization of the company by the stockholders, the pow. ers of the commissioners are at an end. ib. 4. The commissioners cannot, after having advertised a meeting of the subscribers for the choice of officers, as specified in the act, adjourn or postpone the election at their pleasure.
5. The subscribers acquire under the notice a right to hold the election at the time appointed, and to come into possession of the property they have invested, and as a general rule, the commissioners have, after that, no right to interfere against the will of the subscribers. ib. 6. If the commissioners, after calling a meeting of the subscribers, or- der the election postponed, and the subscribers, nevertheless, refuse to postpone, and proceed with the election; the election will not be thereby avoided, unless in the opinion of the court a postponement was clearly necessary.
7. But if any considerable number of subscribers had been deprived of their elective franchise in consequence of the postponement, would the election be avoided?-Quere.
8. The commissioners have a right to the custody of the money paid into their hands; but if their treasurer wrongfully withhold it from them, that is no ground for postponing an election by the stock. holders. ib. 9. The court cannot set aside an election for a mere irregularity, nor because the expenses of the commissioners were not paid. ib. 10. To authorize an injunction to prevent an installment being paid in, the court ought to be satisfied that the election was entirely without authority, and void. ib. 11. In the Reformed Dutch Church, under the statute of New Jersey incorporating religious societies, the civil office of trustee grows out of the ecclesiastical office of minister, elder, or deacon. Every min. ister, elder, or deacon, properly called and instituted, is, virtute officii, a trustee, and must necessarily remain such as long as his ecclesiasti- cal office continues. Doremus v. Dutch Reformed Church, 332 12. Ministers, elders, or deacons, lawfully elected and ordained, and thus inducted into office, though they afterwards secede, renounce the authority of the classis and general synod, and unite with an- other ecclesiastical body, do not thereby divest themselves of their offices. ib. 13. There must be a removal or amotion, by a competent power, to determine an office. ib. 14. If there be a resignation, the resignation must be accepted; and if there be an absolute vacation of an office, such vacation must be recognized and acknowledged. ib. 15. When the original title of an office is sufficient, though good cause of amotion be shown, even in a case where the charter declares that for such cause of amotion the officer shall vacate his office, the office is not determined until there be an amotion. ib. 16. When persons are officers de facto, they are in colore officii, and their acts will be valid until they are lawfully ousted; and more espe- cially as they respect third persons, their acts are binding on the corporation.
ib. 17. Is a court of equity the proper tribunal in which to try the ques- tion of forfeiture of office?-Quere.
1. The costs of an issue at law directed by a court of equity, do not follow the verdict as of course, but are in the discretion of the court. Decker v. Caskey,
2. A mortgagee, upon a bill for foreclosure, allowed his taxed costs of an issue at law directed by the court, to try the mortgagor's title to a
part of the mortgaged premises, although the verdict at law was ad. verse to the claim of the mortgagor; such costs being, in the opinion of the court, expenses properly incurred in the recovery of the mort. gage money. ib. 3. It is usual to allow the costs of both parties incurred in contesting a will to be paid out of the personal estate, except where it appears that the conduct of one or other of the parties is frivolous, oppressive or fraudulent. Day v. Day, 549
4. Counsel fees should also be allowed to the exocutor, who offers the will for probate, and in proper cases counsel fees may be allowed to both parties out of the estate. ib. 5. Where there is a fair ground for re-examination, costs ought not to be awarded against the appellant, though the decree be affirmed. Goble v. Grant, 629
1. Where the creditor has two funds, one separate and one in common with others, he must first look to his separate security, and after that is exhausted he may look to the fund in which others are interested. State Bank v. Receivers of the Bank of New-Brunswick,
266 2. Attaching creditors do not stand on the same footing as bona fide purchasers. The latter are entitled to protection on account of the payment of a present consideration without notice; but the rights of third persons are not affected by an attachment or a judgment, though the attaching or judgment creditor may not be affected with notice. Depeyster v. v. Gould, 474
Vide ASSIGNMENT AND ASSIGNEE, 1, 7. RECEIVERS, 4.
DECREE. Vide PRACTICE, V. FRAUD, 9.
1. If a deed made by a debtor for the benefit of his creditors has once taken effect, the cancellation or destruction of the deed either fraudu. lent or accidental, cannot affect the rights of the parties; nor has the grantor power to revoke it. Scull v. Reeves, 131
2. When a deed is executed by the grantor, and deposited with a third person until the grantor shall have an opportunity of acknowledging it, and then to be delivered to the grantee; it is not an escrow, nor can the grantor avoid the deed by refusing to acknowledge it. White's Adm'rs v. Williams, 376
DEMURRER. Vide PLEADING, IV.
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