been put there, with the addition of the labor

was erected, and its relation in this respect to

making the structure, it became the building now in dispute. It was annexed to, and made part of, the original building by nails driven into the frame, as I gather from the testimony, along the whole heighth of the structures, so far as they touched each other. The nails have been detached, and the nail marks may still be seen. When it was built, it covered the whole rear end of the complainant's building, which had been taken away, which was one story high, and had also a second story. Without this covering by the new building, the old building, after its rear end had been taken away, would have been absolutely useless, and exposed to the weather. The new building consisted of a frame structure, built on piles, as stated, with the sill probably 6x8 inches in size. It was about 30 feet deep, having been built at two different times, 15 feet each, with the first story about 12 feet high and the second story about 82 feet high, and with a tin roof. When the building was put there, it was, as to its first story, so much a part of the first building that it seemed to be impossible for a person to distinguish them from the inside, unless by the fact that there was a rise in the floor of about two feet, to get into the back building. This was the structure, so far as the physical construction of it goes, which the defendant put there. It never had any existence as a structure until it was, by the very act of its creation, permanently attached to, and made a part of, the freehold. The defendant put this extension there without the invitation of anybody, and without the permission of anybody, and it seems to me the building, when put there, became a permanent addition to the real estate, and not a trade fixture in any sense. It was not when taken on the premises a complete thing, nor when taken away from the premises would it leave the original structure in the condition in which it was when the latter one was put there. If it is taken away, it leaves the whole end of the complainant's building open; and I do not think that the fact that the defendant is willing to repair the damage in any way goes to detract from the force of the argument that the character of the structure, as originally made, shows what was the nature of the annexation,-whether it was a permanent erection, and made part of the real estate, or a trade fixture. He may be entirely willing to repair the damage caused by the removal, but that is not the question. The point under consideration is not the securing to the complainant what the defendant offers to give, a restoration of the premises to their original condition,-but whether or not this court ought to restrain the defendant from taking away what, under the circumstances of this case, was a permanent erection, and became a part of the complainant's property.

Another element in the case indicates that this addition has become part of the realty, and that is the use for which the new building

was made was a use which was wholly valueless without the continued use of the original structure. The whole building was used as a hardware store. The new erection was in fact an extension of the old one, and valuable only when used in connection with, and as part of, the original structure, making of both a complete hardware store. It was not such an addition as a bellows or an anvil in a blacksmith shop, for use in carrying on a trade; it was made a part of the original structure itself, and it could not be used without it, nor could the original structure be, after the change, used without the addition. This merger of the use of the two structures into one, whereby both were coincidently and dependently used for the same purpose, is an additional reason which leads me to conclude that the extension was made, not as a trade fixture, but as an enlargement of the building then on the premises, thus becoming a part of the realty.

The

The question of intention is considered by the courts in many cases where the relation of the parties and the character of the structure leaves the question open whether it is a chattel or a trade fixture, or has become a part of the realty. If the evidence is considered from this point of view, there seems to be no proof before the court of the existence of any intention on the part of the defendant, when he built this addition, not to make it a part of the real estate. He testifies that it was put there without any intention existing in his mind at the time he built it. The court must therefore determine the actual intention which accompanied the construction of the addition by the evidence of what was then done. proof shows the construction by a tenant of an addition to an existing building, fastening it to the old building by permanent and nonadjustable attachments, and in such a manner that neither can be separated from the other without opening both to the weather; the new structure being used for the same purpose as the old, and the use of both for those purposes being necessary to the complete enjoyment of either, the removal of either being practically a destruction of the property for that use, the construction having been made without leave obtained from the owner, and without contract therefor, and with no definite intention to remove the new erection. In my view, the addition was intended at the time to be a part of the realty, and in fact then became such. I am the more confirmed in this opinion because of the relationship between the parties,-brother and sister,-and the fact that the tenant paid no rent either during the two years before he made the addition, or the many years since. His regard for his sister, his occupancy for two years rent free at the time he built the addition, and his expectation (since fulfilled) of the continued gratuitous enjoyment of the premises, may well have led him to build the back build

ing as an improvement to his sister's premises.

The

Some doubt is suggested as to the jurisdiction of the court to grant an injunction to restrain the removal of the back building, and Hamilton v. Stewart, 59 Ill. 330, is cited to sustain the claim, on the ground that the proposed removal is a mere trespass. In that case the party restrained was a stranger to the premises, and out of possession. He claimed to be the owner of certain articles which the plaintiff alleged he intended to take away by force, or by a replevin suit. court said that an injunction should not go to prevent a mere trespass, or to stay a suit at law to try the title to fixtures. In the case now on hearing, the defendant admits he is the tenant at will of the complainant, and that she is his landlord, and that he is in possession through her gift. He also testifies that he intended to remove off the demised premises a building which this court is of opinion constitutes part of the realty, and that he has, in execution of that purpose, severed this building preparatory to its removal from the premises.

Here the rights of the parties have been definitely ascertained, and it is shown that the proposed waste will be absolutely destructive of the premises for the uses for which they are most valuable. I speak now of their condition when the back building is removed, and without giving any weight to the defendant's statement that he intends to repair the damage he means to do, by restoring the building to the condition it was in when he came into possession, which cannot be considered. Lord Hardwicke in Farrant v. Lovel, 3 Atk. 723, held that, waste in an underlessee being shown, the ground landlord had the same equity as in other cases of injunctions to stay waste. In Ware v. Ware, 6 N. J. Eq. 117, a tenant by the courtesy was restrained from cutting timber at the instance of the owner of the fee. Chancellor Kent in Douglass v. Wiggins, 1 Johns. Ch. 435, allowed an injunction to restrain a tenant of a dwelling house from converting it into a store. These allowances of the writ, I think, quite justify what is asked in this case. The tenant is put into possession by the landlord, and thereby obtains control of the demised premises. His possession is that of his landlord. It is inequitable that he should be permitted so to use his possession as to destroy the landlord's reversion, leaving him to an action of law for his remedy. On the question, then, of jurisdiction, the question presented is simply this: Has the court of chancery power to enjoin a tenant in possession from removing a portion of the real estate off the demised premises, and thereby destroying them for their accustomed use? I do not think there ought to be any question that this court has in such cases full jurisdiction, and that the court ought, under such conditions, to issue a writ, and restrain the removal.

There was a mention of damage to another

building, which is claimed to have been done, but I do not understand that there is any relief sought on this account.

Mr. Endicott: No; we haven't asked any relief as to that.

The Vice Chancellor: There is also in the bill a suggestion as to a restoration of this hardware building as it was before the defendant severed it. As to that, I think a sufficient remedy can be obtained by the recovery of damages. I am not willing to advise the issue of a mandatory injunction for restoration. If relief for damage done is sought, the complainant has a complete remedy in the courts of law. I will advise the issue of an injunction to restrain the defendant from removing the back building of the hardware store from the complainant's premises.

Mr. Pancoast: A perpetual injunction? The Vice Chancellor: Yes; this is on final hearing.

HALL v. HOME BLDG. CO. et al. (Court of Chancery of New Jersey. Oct. 15, 1897.)

MORTGAGE-FORECLOSURE-PARTIAL RELEASE

TENDER.

1. By the terms of a mortgage it is provided. that the mortgagee shall, on request, release from the lien of the mortgage, for each $90 of principal paid, a lot of land, to be selected by the mortgagor or its grantee, containing 2,000 square feet. There was a default in the payment of the interest due on the mortgage. Bill was filed to foreclose. A defendant, who was a grantee of the mortgagor, had made an inefficient tender, which he set up by way of answer. This was overruled. He now claims to have made a tender of $90 to the mortgagee, with a demand for the release of 2,000 square feet of land conveyed to him and selected by him in accordance with the above provision. This tender and demand were made after the bill filed, but before decree against the defendant. Held, the defendant should be permitted to file a supplemental answer setting up the later tender and demand.

2. The court will not refuse to hear a defense based upon an event which has happened since the filing of the bill unless there be something in the relation of the parties or the subjectmatter of the suit which should exclude the proposed defense.

(Syllabus by the Court.)

plemental answer, and, if need be, by cross bill, to assert his rights. In my view, this is not a case where there is a seeking to amend because of a mistake of law. The cases where an amendment is refused on account of a mistake of law are those where, on the facts existing at the time the answer was filed, the answering defendant had set up his theory of defense against the complainant's bill, and after the court had delivered itself of an opinion, as in the case referred to in the collection of Marshall's opinions. 1 Brock. The defendant desired to amend his pleadings by a supplemental answer to conform to the opinion of the court. In this case there has been no opinion of the court on the facts which are sought to be set up here.

I

entirely new condition of things which the defendant Anderson claims he is entitled to submit to the court, to see whether or not it will affect the court's judgment on the final decree of this case, which, as to him, has not been made. I am very clear that where the after-happening fact sought to be brought in affects the equities of the parties, and would influence the court in coming to a final decree, a supplemental answer setting up that fact, which has come into existence since the bill and answer were filed, should be allowed. know it is common practice, and has been done in this state again and again. That is, the court will not refuse to hear a defense based upon an event which has happened since the filing of the bill unless something in the contract, the relations of the parties, or in the subject-matter of the suit is of a character to cut off the new defense. Whatever rights the defendant has to set up the defense which he opens in his petition are claimed to exist under the contract set out in the complainant's bill, and that contract is expressed very clearly, as to its meaning, in my judgment. The defense arises under the second proviso, which is in these words: "Provided, however, that during said term of five years the said company obligor, its successors or assigns, might at any time pay, on account of the said principal sum, such sum or sums of money as it or they might desire: provided that the sum of eight thousand dollars, at least, each year, should be paid on account of the said principal: and provided, further, that the said obligee, her heirs, executors, administrators, and assigns, should and they did thereby agree, from time to time, and as often as request was made to her or them for that purpose, to release from the lien and operation of the said accompanying indenture of the mortgage, for each ninety dollars of principal paid, a lot of land, to be selected by the said party obligor, its successors and assigns, containing two thousand square feet of land." Under that clause there was given to the mortgagor and to the mortgagor's assigns a privilege, without specification of any time within which it should be exercised, to demand from the mortgagee a release from the lien and operation of the mortgage of such

lot of land as the mortgagor or his assigns might select, containing 2,000 square feet of land, upon the tender of $90 of principal. The effect of that proviso, in the view which I take of it, is that it gives the defendant Anderson in this case, who is the grantee of the mortgagee, a right to select 2,000 square feet of the land which has been conveyed to him, and to offer to pay the mortgagee $90 for a release of the selected 2,000 square feet; and, having done that, he was entitled to a release of that portion of land from the lien of this mortgage, and to claim that the mortgage was thereafter no lien on his land. When the parties made that bargain they did not attempt to create the relation of debtor and creditor between the grantees of the mortgagor and the mortgagee. Nothing in the contract imposed upon the grantees of the mortgagor any obligation to pay anything unless they desired to redeem a lot of 2,000 square feet, as prescribed in the proviso, in which case they were required to pay $90 to the mortgagee to secure a release of the lot. This proviso is an independent undertaking on the part of the mortgagee to release a lot of 2,000 square feet on those terms, and the grantee of the mortgagor had no obligation to pay any additional sum. Nor was the grantee called upon to show that the mortgagor had, at the time when the grantee undertook to accomplish a release, precedently paid up all interest due on the principal debt. Nor was the grantee obliged to make his tender at a time preceding the bringing of the foreclosure suit. The previous hearing of this case which was had on the question of the sufficiency of the first tender was a hearing on the facts as they then existed, and the later tender of payment for a release under the proviso since this suit may be made just as if the suit had never been begun. In my view, if this grantee of the mortgagor had never made any tender, but had been made a party and brought in here, and he had then made a tender, as he now says he did, and asked leave to set it up under the terms of that contract, he had a right to set it up. That is exactly his attitude. That he had previously made an ineffective tender did not preclude him from afterwards making an effectual one. He says he has now made a tender of $90, and has notified the mortgagee of the particular piece of land that he demanded should be released. I think he has a right, in view of the fact that no decree has been taken against him in that respect, to set up this new condition of affairs, and that such an application is not based upon a mistake in law as to an existing condition of fact on which the court has passed an opinion, but is offered on the part of the defendant to set up facts, happening-of course, by hts own creation, but which by the contract he had a right to create-since the filing of the bill. He had under the contract a continuing right to make this tender and demand the release of the 2,000 square feet,-certainly all the

way up to the time when he should be cut off by the decree, and perhaps up to the time of an actual sale. In Chrisman v. Hay, 43 Fed. 553, a purchaser of a lot was, under a similar contract, allowed to redeem at a date subsequent to a decree; the decree specifying the time within which he should redeem, or be foreclosed of his right. This would fully justify the defense of a tender of redemption after suit begun, more especially when the bill in this case makes no affirmative allegation against the petitioning defendant, denying the existence when the bill was filed of his right then or thereafter to exercise this privilege to make a tender, and thus to accomplish a release of the mortgage. All that is alleged in the bill is that the defendant Anderson has obtained a deed of these premises, and that his land so purchased is subject to the mortgage; but there is nothing in the bill which charges that he has no right to exercise his privilege of choice and tender for a release of the mortgage, nor is there any prayer that he may be cut off from it thereafter. The defendant Anderson was under no obligation to redeem the mortgage, except as to his own piece of land, and the method he might pursue to be rid of the mortgage as to that piece was fixed by the contract between the parties.

Mr. Bergen: How do you get clear of the fact that this money, when paid as release. money, as specified in the mortgage, must be paid as principal, when the law is that he cannot pay the principal as long as there is interest due?

The Vice Chancellor: All that reference to the principal means is that the payment, when made, is to be credited by the mortgagee as part of the principal. I do not think the defendant grantee of the mortgagor must pay off the outstanding interest on the whole mortgage, when it is not so expressed in the clause which gives him this privilege of redeeming his lot. If by construction such a burden were cast upon him, it would be to add a new term to the contract, and one of so much importance that it seems to me it would have been expressly stated, had it been intended. The complainant's claim is that, before the release of lots under the proviso can be fully demanded, the outstanding interest due on the whole mortgage debt must have been discharged. Such a construction would oblige the grantee to see that the interest on $63,800 was paid, as a condition precedent to his tender of $90 for a release of 2,000 square feet. The true construction of the contract does not, in my judgment, cast upon an assignee of a portion of the premises such a duty, as a condition precedent to his right to tender the $90 and demand a release of 2,000 square feet, part of the mortgaged premises which had been conveyed to him.

Mr. Bergen: I would like to except to your honor's holding, to the extent of keeping my position intact.

The Vice Chancellor: You have no need of 38 A.-29

doing that. You can have an appeal without taking an exception.

Mr. Bergen: I do not want an appeal, but I would like to leave the question so that it would come up on final hearing.

The Vice Chancellor: I am not sure that you have a right to object to my giving a party leave to file a supplemental answer. I think that is a matter of discretion. As to my construction of the contract between the parties, I have given you my impressions of it, because the opposition to the admission of a supplemental answer required it; but I will hear you further on that point on final hearing, and the question may then be definitely determined whether the defendant Anderson has a right to make this tender without paying up the whole back interest due on the mortgage.

I will advise an order that the defendant Anderson be permitted to file a supplemental answer setting up the facts referred to in his petition, and a cross bill, if necessary to his relief.

WANSER v. HOOS.

(Court of Errors and Appeals of New Jersey. Oct. 2, 1897.)

CONSTITUTION-CONSTRUCTION-STATUTES-SPECIAL ACTS-CLASSIFICATION OF CITIES.

1. The course of legislation will not control the decision of the judiciary in its construction of constitutional provisions.

2. P. L. 1897, p. 43 (providing that in cities of the first class, which comprises all cities having a population exceeding 100,000, and in those cities only, municipal officers shall be elected on the first Tuesday after the first Monday of November, and upon the same official ballots required by law for the election of state and county officers), does not affect the machinery, powers, or structure of city government; and population is not a proper basis for classification for the purpose of the act. and hence the act is repugnant to Const. art. 4. §7, par. 11 (prohibiting special laws regulating the internal affairs of towns and counties).

3. When a law in terms is to operate only in specified localities of the state, satisfactory reasons must be found to exclude it from the constitutional prohibition against local laws. Collins, Dixon, and Ludlow, JJ., dissenting. Error to supreme court.

Action between Peter F. Wanser and Edward Hoos. From a judgment for the latter, the former brings error. Affirmed.

Charles L. Corbin, for plaintiff in error. Allen L. McDermott, for defendant in error.

DEPUE, J. The issue presented in this case is upon the validity of an act of the legislature entitled "An act relating to cities of the first class in this state, and providing for the holding of municipal and charter elections therein, and regulating the terms of elective and appointive officers therein." P. L. 1897, p. 43. It provides that all municipal officers in cities of the first class shall be elected in each year on the first Tuesday after the first

Paragraph 11, § 7, art. 4, of the constitution, provides that the legislature shall not pass any private, local, or special laws in certain enumerated cases, among which is "regulating the internal affairs of towns and counties." This constitutional prescription is a restriction on the power of the legislature. This limitation on the sovereign power of the legislature did not appear either in the constitution of 1776 or 1845. It was introduced into the organic law of this state by an amendment in 1875, and grew out of the public appreciation of the evils that spring from local and special legislation in relation to municipal affairs. The people, in adopting this constitutional amendment, intended to eradicate the source of these evils. In language too plain and explicit to be misapprehended, it prohibited the legislature from passing any local or special law on that subject, and restricted such legislation to general laws. The construction and force of this constitutional provision presents a legal question to be decided by the courts. State v. Rogers, 56 N. J. Law, 480, 28 Atl. 726, and 29 Atl. 173. The course of legislation on this subject by the legislature, while it is entitled to respect, cannot be permitted to control the decision of the judicial department of the government in its construction of the constitutional provision; for, as was said by Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, "the power to make, or unmake, the fundamental instrument of government, resides only in the whole body of the people, and not in any subdivision of them." The legislature may, without infringing on this constitutional interdict, resort to classification for the convenience of legislation. The act of 1882 (1 Gen. St. p. 458), by which cities were divided into classes, and other statutes, by which boroughs and counties were in like manner divided, are instances of such legislation.

The act of 1882 expressly declares that the classification therein made was for the purpose of municipal legislation in relation to cities, and that all legislation founded upon such classification should be construed to embrace all cities of the class referred to. The courts, in a series of cases too numerous to be cited, have given to this constitutional provision a fixed construction. In the first case in which this constitutional provision came before the court, a general law, as contradistinguished from a special or local law, within the meaning of the constitutional provision, was defined to be a law that embraced a class of

ject or place naturally belonging to such a class. Van Riper v. Parsons, 40 N. J. Law, 1. The test of the generality of a law adopted is that it shall embrace all and exclude none whose conditions and wants render such legislation equally appropriate to them as a class. It is also equally well settled by decisions of our courts that, although population may be made the basis of classification in statutes relating to municipal bodies, such a classification cannot be made the means of evading the constitutional interdict of local or special laws. The question whether any particular statute is local or special must be determined, not upon its compliance with a legislative classification, but upon whether, having regard to the character of the legislation and the limitation upon it contained in the act, the statute is or is not a general law, as defined by the courts. The supreme court of the United States has likewise proceeded upon this principle in deciding upon the validity of statutes under the equality clause in the fourteenth amendment to the federal constitution. In Railroad Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, the court held that there might be classification for the purpose of legislation, but that the mere fact of classification was not sufficient to relieve a statute from the reach of the equality clause of the fourteenth amendment, and that in all cases it must appear not merely that a classification has been made, but also that it is based upon some reasonable ground,-something which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection; and, in the application of that principle, the court set aside an act of state legislation, as in violation of the constitutional provision.

It must not be inferred from the language used in the opinions of the courts that the mere aggregation of individuals in a municipality is the actual basis on which a classification may legitimately rest. The constitu.onal prescription relates to the regulation of the internal affairs of towns and counties, without regard to population, and it applies as well to the lesser as to the greater municipalities in this state. ipalities in this state. In re Haynes, 54 N. J. Law, 28, 22 Atl. 923. Chief Justice Beasley, in discussing this subject, speaking of an act establishing a board of street and water commissioners in cities of the first class, observed that "it is true that the classification of cies is made on the basis of population, but this term, in this connection, included not only the number of the inhabitants, but also municipal magnitude in all respects; and a city largely populous must necessarily have a great stretch of streets and a water supply of immense volume. It is the largeness of such necessities, incident to a great population, that differentiates cities of the first class from cities of the other classes; and the consequence is that all legislation regulative of such necessities, on account of their magnitude, is obviously constitutional, as it is ger