ed with defendant to build for him certain houses; that the contract therefor was not filed in the county clerk's office; that thereby it became the plaintiff's duty to use all moneys paid to him by the defendant on said contract for the purpose of paying for the labor and materials furnished to him for said houses, so that liens could not be filed therefor; that the defendant had sent the plaintiff a check as part payment on the contract, and then had stopped payment of the check, and that, on being asked the reason, he had answered, "because he [meaning the plaintiff] misappropriated the money,' thereby meaning that the plaintiff used the money sent him unlawfully, and in a dishonest manner, and did not use it for the purpose of paying the material men and laborers. Held, on demurrer, that the declaration did not set forth a legal cause of action.

(Syllabus by the Court.)

Action by Charles H. Jaeger against Anton Beberdick. Judgment for defendant on de

murrer.

Argued November term, 1903, before the CHIEF JUSTICE, and HENDRICKSON, SWAYZE, and DIXON, JJ.

Lindsley & Maclear, for plaintiff. Jas. A. Gordon, for defendant.

DIXON, J. The declaration in this case, the substance of which is stated in the headnote above, fails to aver any fact from which would legally arise the alleged duty of the plaintiff to use the money paid to him on the contract for the purpose of paying for the labor and materials employed in building the houses. His duty to pay for such labor and materials is clear, but he was under no obligation to apply any specific fund to that purpose. Hence the duty is not legally pleaded. Breese v. Trenton H. R. R. Co., 52 N. J. Law, 250, 19 Atl. 204. That allegation must therefore be disregarded. The residue of the declaration imputes to the assertion of the defendant that the plaintiff misappropriated money paid him on the contract two meanings-one that the plaintiff used the money unlawfully and in a dishonest manner; the other that he did not use it to pay for the labor and materials. The first imputed meaning does not suggest anything relating to the plaintiff's trade or business, and therefore does not state a case within that class of actionable words; nor does it indicate any criminal offense, without which, in the absence of special damage, words not relating to one's trade, business, profession, or office are not actionable. Ludlum v. McCuen, 17 N. J. Law, 12; Johnson v. Shields, 25 N. J. Law, 116. This innuendo derives no support from section 106 of our practice act (Laws 1903, p. 568), for, while that authorizes the plaintiff to ascribe to the words of the defendant any defamatory sense, it requires the sense to be specified, and it is only when the words, either of themselves or with the alleged meaning show a cause of action that the declaration can be deemed sufficient. Here neither the words alone nor their ascribed significance charges any indictable offense. The other imputed meaning strips the defendant's asser

tion of any defamatory sense; for, as already stated, the plaintiff had a perfect right not to use the money, which was paid him on the contract, for the purpose of paying the laborers and materialmen.

No legal ground of action is averred, and the defendant is entitled to judgment on the demurrer.

(70 N. J. L 393)

CROSSEN v. CARR.

(Supreme Court of New Jersey. Feb. 23, 1904.) EJECTMENT-TITLE UNDER WILL-PAROL EVIDENCE-DIRECTING VERDICT.

1. Where a testator, in a devise of land, had described the subject-matter thereof by the words "the house and lot whereon I now reside," the facts showed that early in his life he had bought a lot 50 feet wide, fronting in a city street, and built a dwelling house and other buildings on 25 feet thereof, leaving the other half of his lot vacant, and that 13 years later he bought 30 feet more adjoining, and thereafter inclosed the whole as one lot, but had not built upon his adjacent land during 40 years or more of his occupancy, except that in the last half year of his life a woodhouse had been built upon 13 feet of the adjacent land for the convenience of his household, and there was evidence, though conflicting, that about the same time a fence was erected, which, with the woodhouse, formed an inclosure of the 13 feet, with the 25 feet upon which the house stood, leaving outside of this inclosure 42 feet of the testator's land; and the plaintiff, claiming under this devise, brought suit in ejectment to recover the 13-foot plot, as embraced therein, from the defendant, who claimed it under a residuary clause of the will. At the trial, the jury returned a verdict for the defendant.

Upon review, held, that a resort to extrinsic evidence in determining the location and extent of the subject-matter of the devise was proper. Held, further, that this question was one for the jury, and not for the court.

2. Under the evidence adduced in the cause, it was held that a request to direct a verdict was properly refused, and, further, that the verdict was not so clearly against the weight of evidence as to justify the interference of the court.

(Syllabus by the Court.)

Action by James Crossen against Maggie Carr. Verdict for defendant. Rule to show cause discharged.

Argued November term, 1903, before GUMMERE, C. J., and DIXON, SWAYZE, and HENDRICKSON, JJ.

George S. Silzer, for plaintiff. Freeman Woodbridge, for defendant.

HENDRICKSON, J. The rule to show cause in this case brings before us for review a verdict for the defendant in an action of ejectment tried at the Middlesex circuit. The plaintiff sued to recover an undivided interest in a strip of land 13 feet wide and 100 feet deep, located on the westerly side of John street, in the city of New Brunswick, which was part of a larger tract whereof James Carr, Sr., lately died seised. plaintiff and the defendant both claim title under the will of the deceased. The plaintiff claims under the second item of the will, wherein the testator made a devise to his

The

wife for life, and at her death to his son James, describing the subject-matter of the devise as "the house and lot where I now reside." By the next item he devised to the defendant, his daughter, all the rest and residue of his real estate, "consisting of lots or any other real estate." The controversy arises over the question as to how much of the land of the testator contiguous to the dwelling house in which he resided passed under this devise to the son of the testator. The latter purchased a lot which includes the locus in quo in 1852, having a frontage on John street of 50 feet, with a depth of 100 feet. He erected a dwelling house on the southerly side of the lot, as near the exterior line as possible, and, as the defendant claims, occupied therewith only 25 feet. The defendant's further contention is that the testator, by the method he thus pursued in locating his house and other buildings thereon, and by his acts and conduct thereafter, indicated his intention to limit his "house and lot," as the words are commonly understood, to the 25 feet, leaving the remaining 25 feet to be held by him as an additional building lot. In 1867, 15 years later, the testator bought 30 feet more of land fronting on John street, and adjoining the first tract on its northerly side; and at the time of his death, and for many years prior thereto, the whole of the land was inclosed by a common fence. The plaintiff did not claim the whole of this land, having a frontage of 80 feet; but, in addition to the 25 feet on which the house was located, he claimed the 13 feet embraced in the suit, on the ground that the testator had in his lifetime, as alleged, located a woodshed for his own use thereon, and inclosed it by a fence, with the house and curtilage surrounding it. This claim was made on the principle defined in Smith v. Negbauer, 42 N. J. Law, 307, and Phillipsburgh v. Bruch's Executors, 37 N. J. Eq. 482. It was resisted by the defendant upon the ground already stated, and the facts alleged in its support were in dispute. Under such circumstances, a resort was naturally had at the trial to extrinsic evidence as to the conditions and circumstances surrounding the testator at the time, in order to settle the doubts arising as to the true application of the devise to its proper subject-matter. Opdyke v. Stephens, 28 N. J. Law, 83; Griscom v. Evens, 40 N. J. Law, 402, 29 Am. Rep. 251; Smith v. Negbauer, supra. This sort of evidence was produced by both the parties, with the result already stated. The plaintiff seeks to have the verdict set aside.

The only legal error suggested as the ground of this motion is the refusal of the trial judge to direct a verdict for the defendant. We think it manifest that there was no error in this refusal. Upon the authority of the cases already cited, the questions raised in this cause were not for the court, but for the jury. It is further contended in support of this motion that the verdict is against

the weight of evidence. But is it? The will bore date on the day of the testator's death, which occurred February 9, 1892. The plaintiff's evidence tended to show the presence of the woodhouse and fence, erected upon and enclosing the 13 feet with the house, at and before the death of the testator, and that the outside stairway to the second floor on the south side of the house, at the time of the trial, extended beyond the line of the 25 feet over on the 13-foot strip a distance of 42 inches, and the passageway along the stairway to the kitchen was entirely upon the strip in controversy. The lot was sloping toward the street, and a cut had been made in the embankment, so as to have the plot occupied by the house on a level with the street. It was also shown that the fence in the rear of the kitchen, which served as a retaining wall against the bank, extended at the time of the trial a foot and a half beyond the 25-foot line. The defendant testified that she lived at home up to the time of her father's death, that thereafter she and her mother occupied the house and all the land in common until her mother's death, which occurred a short time before the suit began; that the woodhouse was erected and paid for by herself for her own convenience, to save her from going for wood and coal to the old woodshed upon the rear of the 25-foot lot; that it was erected in the fall of the last year of her father's life; that he followed the water, and was home but seldom; that her impression was that the woodshed had not yet been used, the winter's coal having been deposited in the old woodshed; that the fence referred to was not there at the date of her father's death; that it was erected after that as a temporary fence, of old palings, to keep the chickens from going upon the remainder of the lot, where she had planted peach trees when a young girl. The evidence of herself and her witnesses strongly tended to prove that, when her father made the cut in the bank for the location of his house, he stopped at the 25-foot line, and that within that cut was confined the house, the side stairway, and the passageway. It showed much nicety in the division of space for these purposes. The house had a frontage of 22 feet 9 inches. The stairway was so narrow that there was just room for one person to pass up it. If a bucket was to be carried, it must be held in front or behind the person carrying it. In the passageway a person would brush his shoulders as he walked. The evidence tended to show, further, that since the death of the testator the retaining fence had been extended one foot and a half, and that the stairway and passageway had both been widened. The evidence is that the testator erected and for a few years occupied a stable upon the rear of the 25-foot plot, which was afterwards converted into a chicken house and woodhouse; also that, leaving out of consideration the new woodhouse, the testator never in his lifetime

erected any building on the land, outside of the house plot mentioned. The defendant admitted that in her father's lifetime parts of the 13-foot plot, and also of the land adJoining, were cultivated by her and her mother. What the effect of such acts of occupancy and cultivation in the lifetime of the testator should be in determining the question in controversy was also for the jury. Whether he meant thereby to treat the whole as one curtilage, or to simply derive a profit from the land adjacent to his homestead lot so long as it remained unoccupied, was for the jury to decide. Without referring further to the testimony, except to say that it has all been carefully considered, we feel constrained to say that we are unable to reach the conclusion that the verdict is clearly against the weight of evidence.

The case was properly submitted to the jury by the learned trial judge, and the result is that the rule to show cause must be discharged.

(70 N. J. L. 494)

ROAKE v. PENNSYLVANIA R. CO. (Supreme Court of New Jersey. Feb. 23, 1904.) SUMMONS-SERVICE-FOREIGN CORPORATIONS

-RETURN.

1. A summons issued out of the small-cause court can only be legally served upon a foreign corporation in the manner provided by that act. (Syllabus by the Court.)

Action by Hugh W. Roake against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant brings certiorari. Reversed.

Argued November term, 1903, before PITNEY and FORT, JJ.

Alan H. Strong, for prosecutor.

FORT, J. A summons against a foreign corporation issued out of the small-cause court must be served in the manner provided by the act creating that court. Without such service the court is without jurisdiction to try the cause. A return by the constable, "I served the within summons July fourteenth, A. D. 1903, by reading the same to B. Frank Thorne, resident agent of the said defendant the Pennsylvania Railroad Company, and delivered a copy thereof to the said B. Frank Thorne at Rahway, N. J.," is not a legal service under the statute. Section 17 of the revision of the small-cause court act, approved April 8, 1903, and which became operative July 4, 1903, provides: "If the defendant is a foreign corporation, process may be served upon the agent in charge of its principal office in this state, or upon any officer either personally or by leaving a copy at his usual place of abode, or by leaving a copy at the office, depot, or usual place of business of such foreign corporation within the county, with any person in charge thereof." P. L. 1903, p. 255, § 17. The return does not state that the writ was left with

B. Frank Thorne, as an officer of the company. It states that he was "resident agent" of the defendant company, whatever position that may be. It is probable that the fact is that Mr. Thorne is the Rahway agent of the defendant company, but we cannot presume that fact. But, if he were such agent, the service does not comply with that required by the statute. The return of the officer must be that the summons was served by leaving a copy at the office, depot, or usual · place of business, as the fact may be, with A. B., the person in charge thereof. Service upon such a person as that permitted by the last clause of the part of the act above quoted must be made at the office, depot, or other usual place of business where the person served is employed. Service elsewhere is of no validity.

The judgment in this case is reversed.

(70 N. J. L. 162)

TEETER et al. v. VEITCH. (Court of Chancery of New Jersey. Feb. 10, 1904.)

EQUITY-DEMURRER TO BILL-TRUST-ENFORCEMENT.

1. If a demurrant introduces new facts or misrecites the statements of the bill in his demurrer, and on such new facts and misre citals bases his criticism of the bill, his pleading is a speaking demurrer, and will not be sustained.

2. Where a demurrant admits by his pleading that he received title to lands under a trust to convey the whole of them to another; that he has wrongfully extorted money in cash, and the promise of more, as a condition of making such conveyance, and, though he has conveyed a part of the trust lands in accordance with his duty as trustee, has retained an-other part of these lands as security for the performance of the extorted promise to pay the additional sum, the complainants, who are entitled to the benefits of the trust, and seek by their bill to enforce its performance, are not obliged, as an incident of their right to relief in this court, to tender to the demurrant a reconveyance of that part of the trust lands which the demurrant has rightfully conveyed in performance of his duty as trustee.

(Syllabus by the Court.)

Bill by Emma Teeter and others against William R. Veitch. Demurrer to supple mental bill. Overruled.

The original bill in this cause was filed by the complainants, who arranged and paid the cash portion of the purchase money of a tract of land at Forest Hill, in the city of Newark, in this state, known as the "Cran Farm Tract," which they intended to divice into town lots and sell by means of a lard corporation, to whom the title of the purchased lands was to be conveyed. The intended corporation not being in existence, it was arranged that the title to the property should be put in the name of the defendant, William R. Veitch, to be held by him until the rganization of the proposed corporation, when Veitch should convey it to the corporation,

1. See Equity, vol. 19, Cent. Dig. §§ 496, 511.

f

A

receiving therefor its capital stock, which he was to transfer to the complainants, who had furnished all the money for the purchase of the land. It was further arranged that Veitch should be the secretary and treasurer of the company, when organized, with provision for his compensation if he chose to withdraw from the company's active service. written agreement, dated the 28th day of January, 1903, was made between Veitch and the complainants, to the above-stated effect, a copy of which is set forth in the bill of complaint. Twenty-six thousand dollars was by the complainants applied in the acquisition of the property. Veitch paid nothing. The deed was made, conveying to him the title to the property, and he was thereupon invited to carry out the written contract whereby he had agreed to convey the title to the new corporation. This he refused to do; giving no further reasons therefor than that he was not satisfied with the terms of the agreement, and that he did not like one of the complainants. The original bill further states that the defendant resides in the state of New York; that he is entirely irresponsible; that the complainants, by reason of his refusal to perform his agreement, are losing more than $30 a day interest and loss, because of inability to realize upon their property; and that there is danger that the title to the same may be incumbered or disposed of by Veitch contrary to the terms of his agreement. The complainants pray an answer under oath, with discovery as to the facts charged in the bill to be true; for an injunction restraining the defendant, Veitch, from interfering with or disposing of the farms in question; and for his removal as trustee, and the substitution of another trustee in his place, to whom he should be directed to convey the title, or for a receiver.

A supplemental bill was, by leave, filed on the 15th day of August, 1903, which, after reciting the substance of the original bill and affidavits annexed, states that a rule to show cause was allowed on the original bill, why the relief sought in that bill should not be granted, that copies of the original bill and affidavits were personally served upon the defendant, who upon the return day of the order appeared by counsel, who, after obtaining a postponement, refused at the adjourned day to file an appearance for the defendant. The supplemental bill further alleges that the complainants have sought to obtain some relief which would obtain for them the use of their property, but that the defendant refuses to execute a deed to, or join in the execution of the proposed certificate of incorporation of, the new company, or to take any part in the business of the proposed corporation, though requested specifically so to do; that the complainants' attorney then met the counsel of the defendant in an attempt to make some arrangement whereby the agreement for the transfer of the title to the land held by the defendant could be put into ef

57 A.-11

fect by conveying it to the proposed corporation; that at their meeting the defendant would consider the matter only on condition that a payment in cash should be made to him, which he first insisted should be $12,500, but which he gradually reduced to $1,375. This the complainants refused to pay, because it was contrary to the stipulation by which the defendant had received the title and had agreed to convey to the proposed corporation, as above recited. Other propositions, seeking to induce the defendant to carry into effect his agreement to convey, were made to his counsel, and refused by him. Those rejected propositions did not proffer the payment of any money to the defendant, and the only reply made was, "Money talks." The supplemental bill further recites that, the title to the land paid for by the complainants, having by the deed been placed in the name of the defendant, Veitch, the complainants were kept out of the use of their property, and were suffering daily losses on the investment, and also interest on the mortgages thereon, and were in danger of losing their entire property therein; that, under the strain of these circumstances, and through fear of additional and greater threatened losses, the complainants on the 17th of July, 1903, made an arrangement with the defendant, evidenced by a written memorandum of a deposit in escrow, a copy of which is annexed to the complainants' supplemental bill, to the effect that the cer tificate of incorporation of the Urban & Suburban Realty Title Company (the proposed new land company), and accompanying papers necessary to the completion of its first meeting and organization, and a deed from the defendant and wife to the proposed new company, should be executed by the defendant, and a release protecting the defendant against any liability on certain notes should be executed by complainants, and should all be deposited in escrow with a Mr. Schultz, with a provision that, unless $500 was paid to the defendant, all of the papers in question, except the release, were to be returned to the defendant, but, in case the payment of $500 should be made, then the certificate of incorporation, and the accompanying papers, and the deed from the defendant to the proposed company, were to be delivered to the complainants or their attorney. Appended to the copy of the escrow agreement annexed to the supplemental bill, and made part thereof, is a receipt, dated July 25, 1903, whereby the escrow holder acknowledged that he had received from the complainants' attorney the $500 which was to be deposited for the defendant. The supplemental bill further alleges that the certificate of incorporation of the new company, and its accompanying papers, with the deed of the defendant conveying the land to the new company, were, pursuant to the escrow agreement, deposited with Mr. Schultz, and that afterwards "the deed of the property was ob

tained, and the same is now recorded," etc. The supplemental bill further alleges that, in addition to the $500 in cash, the defendant required that the complainants should agree to pay him a further sum of $1,000, to induce him to carry out the terms of his contract to convey the lands to the proposed company; that, in order to secure the payment of this $1,000, the deed which this defendant made to the new company contained a reservation excepting therefrom a lot of land, 100 feet square, which in the deed was declared to be retained "by the said William R. Veitch as and for security for the payment within six months from the execution of this deed of the sum of $1,000.00 which said sum if not paid within six months said William R. Veitch shall retain said plot of ground as his own property, free and clear of all encumbrances thereon." The supplemental bill further alleges that the payment or securing of the said sums of money was forced from the complainants by fear of loss and damage which they would suffer if the defendant further refused to perform his agreement; that the defendant willfully and maliciously imposed upon them, and demanded said moneys as a condition precedent to his conveyance of the land which had been intrusted to him, relying upon his honesty; that he had ren dered no service whatsoever, such as it had been intended and contemplated would follow the organization of the said company, but, having received, as above stated, the title to said real estate, which the complainants had paid for with great difficulty, and believing that he had them in his power, and knowing their helpless condition, and that it was impossible for them to release the money invested in the properties, or to earn any returns from the property, until the defendant's demands had been complied with, the defendant insisted upon the payment of said sum of $500, and the securing as aforesaid of the payment of said sum of $1,000 within six months from the 17th day of July, 1903; that the said demands of defendant were nothing less than blackmail, and that the complainants were forced to concede them, under the fear of the loss of their entire property; that the defendant knew that, as a nonresident, refusing to appear in the action, he could delay the complainants in the prosecution of any suit to recover from him the title to said property, so that they would be subjected to a loss of more than $30 a day interest, besides the losses of profit of the land from their inability to handle or dispose of the property, and the complainants charge that the defendant's acts were deliberately planned for the purpose of extorting the payment of the said $1,500. The complainants pray that they may have the same relief against the defendant as if the matters set forth in their supplemental bill had been stated in their original bill, and that the value of any interest of the defendant under the agree ment of January 28, 1903, may be ascertain

ed; that the portion of said property retained by him, in the exception above recited, to secure the payment of said sum of $1,000, be decreed to be surrendered to the complainants, and for other relief, etc.

To this supplemental bill the defendant demurs generally, and, for causes of demurrer, shows, first, that by the supplemental bill it appears that the matters and things in issue between the parties set forth in the original bill "have been settled by the parties hereto, and said suit ended, and that there is not now any suit pending on the original bill to which the supplemental bill can be supplemental"; second, that by the supplemental bill it appears that the complainants received from the defendant, for and in consideration of the payment to him of the sum of $500, and the agreement to pay the further sum of $1,000, a deed for certain lots of land, and that the supplemental bill does not allege any tender or offer of tender by the complainants "to reconvey the premises conveyed by this defendant to said complainants in exchange for said payment and said agreement for further payment, and that thereby the said complainants fail to offer to put the defendant in the position in which he was prior to the making of said deed, and fail to offer or to do or offer to do that equity to the defendant which he must offer to do or do before he can obtain relief in this honorable court." On this demurrer, based upon these two grounds, the cause has been argued.

McEwan & McEwan, for demurrant. Anderson Price, for complainants.

GREY, V. C. (after stating the facts). The effect of the demurrer is to admit the truth of all the facts narrated in the complainants' bill which are well pleaded. It is sufficiently averred that the complainants raised all of the purchase money to buy a tract of land; that the defendant did, not contribute any portion of the purchase money, but, in writing, agreed with the complainants that he would accept a conveyance of the land, and would convey it to a corporation which was, with his aid, to be formed, would receive the stock of that corporation to be issued in payment for the conveyance, and would turn over the same to the complainants or to the persons named in the written agreement. It is also admitted by the demurrer, because sufficiently alleged in the bill of complaint, that having, under these circumstances, received the conveyance of the title, the defendant, for the purpose of extorting money from the complainants, held the title, and refused to convey the same in accordance with his agreement; that he refused to aid, as he had agreed to do, in the formation of the proposed corporation, and to receive and distribute the stock in exchange for the conveyance of the title; that he continued to refuse until an action was brought by bill filed