of this, and, being satisfied that his father was squandering his money upon Mrs. Ellenberger, declined to pay him any more. The proceeds of the mortgage, amounting to $1,167.50, were paid to him by check dated July 2, 1898, and on July 8, 1898, he deposited $1,100 in the Dry Dock Savings Institution of New York to the credit of Louis Foth and Caroline Lang, by which name Mrs. Ellenberger was known. That remained to their joint credit until after his death, which occurred on the 3d of August, 1899. Shortly after making this mortgage, and the refusal of his son to pay him any more money, he withdrew entirely from his son's house, and served notice, through a lawyer, on the son to vacate the premises, which the son declined to do; and thereupon the father set about selling his property, and in the month of August conveyed the more valuable piece, which he had just mortgaged, to one Egert, for $2,500. The real value was understood to be at least $500 more than that. The reason given by the old gentleman at the time for selling at that price was that he did not himself wish to actually institute proceedings to eject his son therefrom, and, as he needed the money, he was willing to sell at a sacrifice. Ejectment was brought against the complainant herein for the premises covered by that deed, and the matter was settled between them without a trial. In August the father went to New York, and stayed at a boarding house there about six weeks, when he returned to Carlstadt, and took up his abode with Mrs. Ellenberger. Later on he employed a Mr. Allen, of Passaic, to prepare the will in question, giving him memoranda, and the same was duly executed by him on December 10, 1898, at Mrs. Ellenberger's house, in the presence of witnesses, under the supervision of Mr. Allen. The next day, December 11th, he called at Mr. Allen's office, at Passaic, a mile or two away, and told him that he had had another muss with his son (there was no foundation for this), and that be was afraid they would attack the will, and wished to make a deed of the premises to Mrs. Ellenberger for life, and at her death to his grandson William. In pursuance of that instruction, Mr. Allen prepared the deed here in question, and the next day, the 12th, took it to Mrs. Ellenberger's house, and it was there executed and delivered. The next spring the old gentleman manifested marked symptoms of senile dementia, and died of that disease on the 3d of August. For some time before his death he was radically insane.

The great weight of the evidence of all the physicians is that there are no recorded cases where any person has died of senile dementia alone, as this party did, unless the disease had been running a year or more; and when the facts in this case were stated to one of the physicians, whose manner impressed me with his learning and soundness of judgment, his opinion was decidedly that

Mrs.

the old gentleman did not enjoy the full use of his senses at the date of the execution of this deed. Senile dementia is a distinct disease of the brain, quite distinguishable from mere senility and general weakness of the vital powers. It is insidious in its approach, and not at first recognizable, except on close observation. Several circumstances proven in the cause are relied upon as indicating a lesion of the mind prior to the date of the conveyance in question. One was that he developed an unnatural desire for sexual intercourse with women, and showed a lack of sense of propriety in indecently exposing his person. A Mrs. Cordes, a poor, but respectable, old charwoman, who washed for Mrs. Foth, and on those occasions used: one of the old gentleman's rooms for a drying room, swears that on one occasion, some time before the period here in question, he accosted her, and expressed a desire to have connection with her; that she refused to understand or notice his language, and that shortly: afterwards he took advantage of her presence in his room, while hanging the clothes to dry, to seize her person for the purpose of having connection with her; that she resisted him and pushed him away with force. Huber, the mother of Mrs. Foth, swears that on one occasion, as she was taking the old gentleman's coffee to him in his room in the morning, she met him in the hall on his way from his room to the water-closet in a state of perfect nudity, and that he manifested no shame or embarrassment. Again, it is sworn to in the case, in such a manner that I believe it, that Mrs. Ellenberger herself, immediately after the quarrel over the dinner hour, visited Mrs. Foth to call her to account for what she had said about her on that occasion, and in the course of her conversation spoke of the old gentleman as a ram, indicating that he was showing a desire for sexual intercourse. Then a witness, whom I have no reason to disbelieve, swears that in August, 1898, shortly after he had conveyed the piece of property to Mr. Egert, he went to the office of the broker who negotiated that sale, and inquired whether he had conveyed both pieces of property to Mr. Egert, seemingly forgetful of the contents of the deed which he had executed only a few days before. This is denied by the broker, but I believe it to be true. After the son had taken the business under the arrangement of November 1, 1896, the father occasionally helped him in the store, and on one occasion the son came in and found him engaged in selling some goods to a lady, and both seemed to be embarrassed, and acted as if something unusual had happened between them. The father handed him the memorandum of the sale he had made, and upon examination the son found serious mistakes in it, but the son swears that he also suspected that his father had been making some improper advances to the lady. On another occasion the son sent the father to New York to purchase some goods for him, and upon his return the father

told the son that when he finished his business he had taken a street car to go downtown to the ferry on the way home, and some time afterwards found himself a considerable distance uptown; in short, had gotten into a car going the wrong way. Again, Mr. Ballin, a New York merchant from whom the father had purchased goods for many years, and who knew him well, swears that in 1897 he came into his store to order some goods for the son, and that in the course of the transaction, and in talking with him, he noticed a marked change in his manner and in his speech. He was not the same man that he had known previously. Again, Mr. Bamberger, the principal of the public schools in Carlstadt, and an intelligent and reliable witness, was for several years brought in close contact with the parties by reason of the son being clerk of the school-district board. He testifies to the great mutual confidence and respect between the father and the son, and the great dependence of the father upon the son, and the great liking expressed by the father for the son's wife, and to his expressions during the first year after November, 1896, of satisfaction with his situation, and the treatment he received from his son and his wife. And he further testifies that prior to what in the case was called the "rumpus," namely, the quarrel about the elder children's failure to come promptly to dinner, and before he heard of any trouble between the parties, he heard and saw something in the father's conduct and speech that excited his suspicion, and he advised the son to have the verbal gift made by the father put in writing. The son declined, saying that he had perfect confidence in his father. A Mrs. Ruyman swears that she was a member of a building loan association for which the son acted as agent, and was in the habit of paying him $10 every month, and that in 1897, before any trouble arose between the parties, she called upon the son to make a payment, found the son absent, and the father at the store. The father wished to take the money from her, but she declined to give it to him, whereupon he told her that his son would swindle her out of it. That the old gentleman was deeply enamored with Mrs. Ellenberger was abundantly proven, and their amorous behavior when together was a matter of common observation and gossip. When at home in the daytime he was in the habit of intently watching her movements from his son's house. As soon as he received from his son his weekly payment of $7, he would proceed as quickly as possible to her house, and in a day or two would be penniless. During this period he spent the $400 which he had in bank, and the proceeds of the sale of his house, nearly $2,500, less the amount he deposited to the joint credit of himself and Mrs. Ellenberger in New York, and also all the money which he received from his son. The circumstances disclose no object upon which he could have

spent this money except Mrs. Ellenberger. This unnatural and morbid excitement of the amorous faculties in a man over 79 years old is one of the symptoms given by the physicians of approaching senile dementia. There are other small matters, besides those stated, not worth while mentioning; but, in my judgment, the most persuasive fact in the case tending to show a change in his mental powers is his entire loss of confidence in and affection for his only child, without, as it seems to me, any adequate cause therefor.

It

There was evidence given by several intelligent witnesses who did business with the father during this period to the effect that they found him sound in mind and discovered nothing unusual. This is, in one sense, positive evidence, and, in another sense, negative evidence, and, taken in connection with the well-established facts, is of great value in determining the degree of the deterioration of the mental faculties. But I do not find it necessary to determine whether on the 12th of December, 1898, when he executed the deed in question, he was entirely disabled from transacting such a piece of business. is enough to say that the evidence satisfies me that he was in a condition where he was not able to take care of himself in choosing and determining the proper mode in which to carry out his expressed and apparently settled intention. That intention was contained in his will, which gave to Mrs. Ellenberger the use of the house and lot here in question for her life, with remainder to his grandson William. Mr. Allen is quite clear and decided in his recollection that the testator was emphatic in stating that his desire was that his grandson should have this house and lot at Mrs. Ellenberger's death. His account of it is as follows: "Well, then, I think it was a day or two afterwards, he called up to my place, and asked me He said that his son, Herman, he had heard, or he told me that they had had some sort of a rumpus again, and he was afraid his son, Herman, was going to make trouble for him, and he wanted to be sure that Mrs. Ellenberger would have the life interest of this property, and wanted to be sure it would go to his grandson at her death, and he asked me if it would make any difference if he was to make a deed to her of that property. He said she had been very kind to him, and treated him better than his own family had,-a great deal; and I said, 'If it is your wish to make a deed to her,' I says, 'so far as that goes, it won't interfere with your will.' He says, then, 'I would like to have you draw up a deed for that property to her.' He says, 'She is to leave it to my grandson at her death, and that is the way I want you to make the deed.' So I drew up the deed. I didn't have time to draw it up that day. I think this was the next day after he made the will. I didn't have time to draw it that day. I told him I would prepare it, and bring it down for him to sign, which I did. I

think it was two days after he had made the will. I took it down to his place, and told him I had prepared it the way he asked me, and I read it over to him, then he signed it." And again: "Q. And he wanted a deed drawn by which Mrs. Ellenberger would have a life estate in this property, and the remainder should be vested in Willie Foth; is that it? A. Yes; I told him, 'Why don't you have it specified in the deed?' 'No,' he said; 'I want it made direct to Mrs. Ellenberger, and she is going to leave it to my grandson Willie at her death, and I want the deed made so she will surely have the use of it as long as she lives.' Q. He said he wanted it so she would surely have the use of the property as long as she lived? A. Yes. Q. by the Court: You drew the deed? A. Yes. Q. The deed is in fee simple to Caroline Ellenberger,-absolute deed, is it not? That is so, is it not,-consideration $1? A. One dollar and other valuable consideration."

Now, Mr. Allen's excuse for preparing the deed as he did is that Mr. Foth so wished it. Mr. Allen was at that time engaged in procuring a divorce for Mrs. Ellenberger, and was, in a measure, her counsel. He had been admitted as solicitor only in February previous, and, without reference to his being professionally engaged at the same time for Mrs. Ellenberger, I think if he had been a counselor of some experience, such as a person in Mr. Foth's condition and situation was entitled to, he would not have permitted Mr. Foth to make an absolute deed to Mrs. Ellenberger. He would have said: "Your rights, and the rights of your grandson, are not properly protected by giving an absolute deed to Mrs. Ellenberger, and relying upon her promise to leave it by will to your grandson." I am of the opinion that a person whose capacity to judge of so important an affair, was, to say the least, rendered doubtful by the evidence, cannot be said to have had competent counsel in a solicitor of eight months' standing, who would permit him, without serious protest, to make an absolute deed, when his intention was to give only a life estate, with the remainder to a particular person. The authorities on this subject are abundant, and collected by me in White v. White (N. J. Ch.) 45 Atl. 767, at page 771. In my judgment, Mr. Louis Foth had, in his lifetime, an equity to have the deed set aside by reason of not being in conformity with his wishes; and the case of Hall v. Otterson, 52 N. J. Eq. 522, 28 Atl. 907, is authority for the position that such right at. his death descended to the complainant as his heir at law. And Mulock v. Mulock, 31 N. J. Eq. 594, is authority for the position that in such a case the deed cannot be considered as reformed for the purpose of carrying out the intention of the grantor. This right, of course, will not avail the complainant if the will shall finally be established; but, for present purposes, that instrument must be laid out of view, since at the time of the submission

of the cause to me it was subject to appeal in the orphans' court of the county of Bergen, I will advise a decree setting aside the deed, with costs.

(60 N. J. E. 211)

CAMDEN IRON WORKS v. CITY OF CAMDEN. (Court of Chancery of New Jersey. Sept. 29. 1900.)

SALE AGREEMENT

MECHANIC'S LIEN

STATEMENT-AMOUNT-CITY IM-
PROVEMENTS.

1. Under an agreement to sell to P., con tractor for certain work, such quantities of iron pipes as P. may desire, to be delivered within a certain time after each monthly order for same, there is no liability for pipes not shipped, and not ordered by P.

2. Under a contract for sale by the pound of iron pipes, they to be of a certain length and weight, overweight not to be paid for, there can be no recovery for overweight because of an excess in length, where the purchaser does not accept them with knowledge of this.

3. A manufacturer of iron, who furnished iron pipes to a contractor for construction of city waterworks, is within Act March 30, 1892, § 1 (2 Gen. St. p. 2078), giving a lien to a "mechanic, merchant, or trader" who is employed on or furnishes material for a city improvement.

4. A lien for materials furnished the contractor for a city improvement is not wholly void because for an amount greater than can be enforced, the claim not being fraudulently padded; but the excess in the claim having arisen from want of care in making it, and the moneys belonging to the contractor being thereby tied up, interest on the claim from the filing of the lien will be disallowed.

Suit by the Camden Iron Works against the city of Camden to enforce a lien under Act March 30, 1892 (2 Gen. St. p. 2078), to secure the payment of laborers, mechanics, merchants, or traders, and persons employed upon or furnishing materials towards the performing of any work in public improvements in cities, towns, township, and other municipalities in this state. Judgment for plaintiff.

E. A. Armstrong and D. J. Pancoast, for complainant. S. H. Grey, for the defendant George Pfeiffer.

REED, V. C. Mr. George Pfeiffer, Jr., entered into a contract with the city of Camden on June 24, 1899, to construct a municipal waterworks. Some dispute having arisen in respect to the execution of the work and in respect to the amount due by the city, the matters were settled on May 25, 1899, by an agreement, which fixed the amount still due at the sum of $120,000. Of this sum there is still in the hands of the city, to the credit of Mr. Pfeiffer, the sum of $38,759.04. Under date of May 18, 1898, the Camden Iron Works served a notice upon the city of Camden, claiming that Mr. Pfeiffer owed it the sum of $32,228.45. The claim attached to the notice displayed a demand for castings shipped in the sum of $54,971.65, with a credit of $36,307.55, leaving a balance due amounting to $18,604.10. The charges were

at the rate of $22.50 per 2,000 pounds.. In addition to this claim there was another for 225 pieces of 30-inch and 34 pieces of 36inch pipe made and held subject to order, amounting in price to $11,714.70. These two claims, together with interest amounting to $1,324.21, made up the entire amount of the claim, namely, $32,228.45.

The claim for $11,714.70 for pipe not shipped must be disallowed. There were two contracts between Mr. Pfeiffer and the Camden Iron Works,-one for furnishing a stand pipe, and another, dated October 31, 1896, for castings. It is under the contract of October 31, 1896, that the claim for castings not shipped, but held subject to order, must fall. Under that contract the Camden Iron Works agreed to sell such quantities of straight pipes and special castings as Mr. Pfeiffer may desire at the price of $21.64 per ton of 2,240 pounds for all straight pipe, and $24 per ton of 2,240 pounds for all ball joints, and 24 cents a pound for all special castings, delivered f. o. b. cars at Camden, consigned to such freight station or stations between certain points on the Pennsylvania Railroad as Mr. Pfeiffer should, from time to time, designate. The pipe and castings were to be delivered at such designated stations within 30 days after each written monthly order for the same. The pipes not shipped were never ordered by Mr. Pfeiffer, either verbally or by writing. It appears also that these pipes have been sold to other parties by the complainant. Under the terms of the contract, Mr. Pfeiffer is not liable to pay for them. In respect to the claim for the pipes actually shipped, there is an overcharge in the price charged per ton. The castings included in this claim are "all pipes and special castings," and the prices are fixed by the contract of October 31st. Instead of adhering to the prices designated in this contract, charges are made at the rate of $22.50 for 2,000 pounds. There should be a reduction for the difference. Then there must be a reduction for overweight. The contract provides that any overweight in excess of 1 per cent. is not to be paid for. The contract states that the water pipe, hub, and spigot shall be 12-foot lengths. Now, the total weight, divided by the number of lengths, shows an excess in weight of more than 1 per cent. In explanation of this it is said that the pipes as actually cast run from three to four inches over the strict measure. But there is no proof, aside from this general statement, that these did, and that Mr. Pfeiffer, knowing this, accepted them. Nor is there proof of a general usage in the trade, of which Senator Pfeiffer must have had notice, that when the length of cast pipes is stated in a contract it is understood to mean three or four inches more than the lengths stated. There must be a reduction for this excess in weight. Then it is admitted that there must be a reduction for the tool house of $48.69. I think there should be also a

reduction for pipes No. 36 and No. 215, as I think they were defective. So far in respect to the merits of the claim itself.

The defense, however, does not rest upon a claim of overcharge, but it is insisted that the bill to enforce the lien should be dismissed. In support of this insistence it is urged that this claim is not included within the provisions of the act of March 30, 1892, because the complainant does not stand in the posture of a laborer, mechanic, merchant, or trader, and it is only the class of persons mentioned in the first section of the act that can claim the benefit of its provisions. It is perceived that the title of the act is broader than the first section, inasmuch as the title covers, not only the class mentioned, but also persons employed upon or furnishing materials towards the performing of any work in public improvements, etc. I am of the opinion that the term "mechanic, merchant, or trader" is broad enough to inIclude the Camden Iron Works, who furnished material towards the performance and completion of this contract.

It is secondly insisted that the bill should be dismissed upon the ground that the lien as filed was for an amount so greatly in excess of that due the lienor as to exhibit a fraudulent purpose. If I were satisfied that the excess in the claim so filed was introduced into the claim for the purpose of tying up the money due to Mr. Pfeiffer, and to coerce him into making a settlement upon the claimant's terms, I would not hesitate a moment to dismiss the bill. If any creditor willfully files a claim for an amount in excess of what he knows is due to him, he has perverted the purpose of the statute, and no court could assist him in his fraudulent purpose. But a claim which may seem to a judge to be without legal foundation may seem to a creditor and his lawyer to be valid, or to have at least a chance of judicial establishment; and because the attorney may have been mistaken, and the claim turns out to be partially invalid, it does not follow that the whole claim should be branded as fraudulent, and the lien discharged. I do not think the present claim was fraudulently padded. So far as the excessive price charged, counsel relies upon the agreement previous to October 31, 1896, and in respect to the charges for the manufactured and unshipped castings upon a general understanding that he could go on and manufacture in advance of specific orders. But, while I do not regard the claim as fraudulently made, I do think it was made without that care which should attend the filing of a lien under the statute. The effect of it was to tie up moneys which belonged to Senator Pfeiffer in the hands of the financial officers of the city of Camden, thus depriving him of the interest and use of the same. For this reason I think interest upon the claim should be disallowed, at least from the time of the filing of the mechanic's lien. Unless counsel can agree upon the

2

amount which a calculation in accordance with the views herein expressed will produce, I will refer it to a master.

(65 N. J. L. 167)

CONOVER et al. v. LONG BRANCH COMMISSION et al.

(Supreme Court of New Jersey. Sept. 14, 1900.)

MUNICIPAL CORPORATIONS-GARBAGE FRANCHISE.

In A. D. 1899 the Long Branch commission had no power, by virtue either of its special act (P. L. 1875, p. 477) or of any general statute, to grant by resolution an exclusive franchise for 20 years for the collection and cremation of garbage.

(Syllabus by the Court.)

Certiorari by Frank B. Conover and others against the Long Branch commission and others to review resolutions and contract of the commission granting an exclusive franchise for the collection and cremation of garbage in the city of Long Branch for 20 years. Proceedings annulled.

Argued June term, 1900, before DIXON and COLLINS, JJ.

Charles L. Corbin, for prosecutors. Thomas P. Fay, for defendant.

COLLINS, J. The board of commissioners of Long Branch in A. D. 1899 attempted, by resolution, to grant to certain individuals an exclusive franchise, for 20 years, for the collection and cremation of garbage, etc., and to award a contract accordingly, on certain remuneration to the municipality, and at prescribed rates of service to citizens; the contractors to establish a crematory in a satisfactory location. By a later resolution the site for the crematory was fixed by the board and accepted by the contractors. The present writ of certiorari, allowed in December, 1899, removes all these proceedings. The prosecutors are taxpayers owning property in the neighborhood of the proposed crematory. They clearly have a standing for Itheir writ. This, indeed, is not questioned; but it is argued that they are in laches, because before they moved in the premises about $1,000 had been expended towards the erection of the crematory. If the attack was simply upon a resolution giving municipal consent to such erection under the restrictive act of 1895 (2 Gen. St. p. 2257, par. 644), this objection would have force; but, tied to the franchise and contract, as is the selection of site, it must stand or fall with them. If they are ultra vires, they cannot be saved by any laches of the prosecutors. That they are without legal authority is unquestionable. Nothing in the subsisting organic law under which the Long Branch commission exists (P. L. 1875, p. 477), or in any general statute, warrants an exclusive franchise of the character sought to be conferred. Without legislative authority a municipal corporation cannot create a monopoly. Dill. Mun. Corp. §§

296, 547-550. Besides this fundamental defect there is one of procedure equally fatal. The only power of the commission over the subject of the challenged municipal action is the inferential one conferred by sections 33, 34, and 35 of the act of 1875, above cited. That power, it is enacted, shall be exercised by ordinance. Where an ordinance is prescribed by a municipal charter, a mere resolution is ineffectual. City of Paterson v. Barnet, 46 N. J. Law, 62, and cases cited. An act has been passed pendente lite (P. L. 1900, p. 398) that may have a bearing on future action of the character of that now involved, but, being clearly only prospective in operation, need not now be considered. The proceedings certified will be set aside, with costs.

In re LEONARD'S WILL. (Prerogative Court of New Jersey. Sept. 4, 1900.)

PROBATE OF WILL-WITHDRAWAL OF APPLICATION-CITATIONS.

Proponent of will, having the right to withdraw application to surrogate for probate before citations are issued, may do so where citations name as return day a day already passed, they having no force.

Application for probate of the alleged last will of Francis de P. N. J. Leonard, deceased. Motion to dismiss application on the ground that proceedings for probate were pending in the prerogative court. Motion denied.

Edmund Wilson and Joseph Reilly, for the motion. James E. Degnan and Chas. L. Corbin, opposed.

REED, Vice Ordinary. The motion to dismiss the application for probate in the prerogative court is grounded upon the insistence that jurisdiction to pass upon a similar application had already been gained by the Monmouth county orphans' court. The facts are these: Testator died June 10th. On June 25th caveat was filed in office of surrogate of Monmouth county. On June 28th testator's will was handed to surrogate, with a request that he issue citations returnable before the orphans' court on July 12th. Citations were prepared, tested on the 28th of June; but by mistake the return day named was the 12th of June, instead of July, although they were indorsed returnable July 12th. On July 2d the will was taken from the surrogate's office by the proctor of the proponent, and on July 5th application was made to the ordinary for the probate of the will in this court, and an order was signed for the issuance of citations at 5 o'clock of that day. On July 5th the proctors of the caveators applied to the orphans' court for an order certifying the issues arising on said caveat into the circuit court. This motion was opposed upon the ground that the will had been with