The tax sales for 900 years. and the certificates thereof, will be set aside, upon terms that the complainants pay the tax, and interest thereon, as above adjudged. The relief prayed as to the sales, and the certificates thereof, for the taxes of 187 9, and as to the assessments for lmunicipal improvements, will be denied.

No costs will be awarded to either side.

1. EQUITY—WHEN STATUTE or LIMITATIONS APPLIES.

When an action is brought in this court on a claim cognizable at law, the statute of limitations applies.

2. SAME—PLEADINGS—ANOMALOUB PLEA.

An anomalous plea—partly affirmative, partly negative—must be supported by an answer in subsidlum as to the allegations which constitute the replication, and as to all charges of evidence in support of such allegations.

.3. SAME—FRAUD—BILL 0F DISCOVERY—WAIVING OF Answnn UNDER OATH.

Where a bill, contains a general charge of fraud merely, with no specifications, and waives answer upon oath, discovery in aid of the complainants? charge of fraud is practically and substantially waived also.

Bill for account. On argument of plea in bar.

The facts are fully given in the opinion.

Bart'ine & Griggs, for complainants. F. J. Helinghuysen and A. A. Clark, for defendant.

RUNYON, Ch. The bill states that in 1862, after the bank was incorporated, it appointed the defendant its cashier, and that he assumed the duties and emoluments of the office accordingly, and took into his custody all the moneys, securities, papers, books, and accounts of the bank, and so became bound to account to the bank therefor; that he continued to hold the office continuously for 12 years; that during the whole of that time, and while he was cashier, he kept an account in the bank in his own name as county collector; that he so falsified and manipulated his accounts and books of the bank that, at or about certain dates mentioned in the bill, he fraudulently embezzled and appropriated to his own use certain specified sums of money, together amounting to $2,214.60, so far as discovered, which belonged to and were held in trust by the bank, and which it was obliged by law to pay, and which it did afterwards pay, to the collector of Somerset county; that when, in 1874, the defendant, at the end of the 12 years, ceased to be cashier of the bank, he was at once made and became pres— ident of the institution, and thereupon assumed the responsibilities and emoluments of that oflice, and continued therein until 1880; and that while continuing in' the offices of cashier and president he fraudulently concealed the fact of his embezzlement, so that the complainants did not and could not discover it, by reason of such fraudulent concealment, until they employed an expert to examine the books, in May and June, 1881, when they first learned of the embezzlement. The bill prays answer without oath, and prays for an account, and for a decree that the defendant pay what may be found due upon the account. The defendant has pleaded to the whole Of the bill. By the plea he denies the imputed embezzlement, concealment, and fraud, and the alleged falsification and manipulation Of the account; denies that he is indebted to the bank in the sums mentioned in the bill, or any of them; and avers that the moneys, with the receipt and embezzlement whereof the bill charges him, (but he denies the embezzlement,) were embezzled more than six years before he was served with any process of this court to answer the bill, or any process whatever to account therefor. He expressly denies that by reason of his alleged fraudulent concealment the complainants could not discover the embezzlement, if there had been any, until they employed an expert to examine the books and accounts, in May and June, 1881, and alleges that any failure to make such discovery, if there had been any embezzlement or subtraction Of funds, as charged, was due to their own neglect and carelessness; that for nine years—from 1874 to the time of filing the bill—the complainants had cashiers other than the defendant, and that, if there had been such embezzlement or subtraction of funds as is charged against him, it must have been known to such cashiers and to the other officers of the bank. The plea then sets up the statute of limitations in bar to the whole of the complainants’ demand.

The complainants’ counsel insist that the plea is not good, because it sets up the statute of limitations as a bar to a claim that the defendant fraudulently obtained the complainants’ money, and fraudulently concealed the fact that he had done so up to a period within six years before the time Of filing the bill. The plea Of the statute is a good plea in equity as well as at law. Where the complainants’ claim is based upon a fraud which the defendant has concealed until sufficient time has run to enable him to set up the statute, the statutory period will not, in equity, be considered to have commenced until the fraud is discovered, or until it would have been discovered had reasonable diligence been exercised. Todd v. Rafferty, 30 N. J. Eq. 254; Story, Eq. Jur. § 1521. It is not so at law. Freeholders, etc, v. Veghte, 44 N. J. Law, 509. Direct trusts, as between trustee and metal que trust, are not reached by the statute. But the case in hand is not one Of those to which the statute is not applicable. The alleged fraud was in the embezzlement by the defendant, while acting as cashier of the complainants, of their money intrusted to his hands. The claim against him arising therefrom is one cognizable at law. If so, the statute applies to it in equity. Kane v. Bloodgood, 7 Johns. Ch. 90; Aug. Lim. § 178. The complainants’ counsel insist that in the case of Williams v. Reilly, 41 N. J. Eq. 137, S. C. 3 Atl. Rep. 692, it was held that one who was sued in this court for dereliction and malfeasance in an office similar to that held by the defendant could not avail himself of the statute of limitations. In that case the suit was indeed against the defendant for dereliction and malfeasance in the office Of treasurer of a savings bank, and it was held that the statute of limitations was not a defense to the bill; but it was so adjudged on the ground that he was a member of the board of managers of the bank, and the object of the bill was to charge him, in the interest of the depositors, with dereliction of duty as a manager holding an office of special trust (the office of treasurer) in the management. It was held in Williams v. McKay, 40 N. J. Eq. 189, that the managers of a savings bank stand in the relationship of trustees to the depositors, so that the statute of limitations will not be a bar against a charge of mismanagement on their part which occurred more than six years before the filing of the bill.

The plea in this case is what is known as an anomalous plea, because it is partly affirmative and partly negative,—aflirmative in setting up the statute, and negative in denying the fraud, (Story, Eq. Pl. § 802; Langd. Eq. Pl. § 101;) and that is the form of a plea of the statute in such a case, (Mitf. Eq. Pl. 269; Story, Eq. Pl. § 754.) It is a rule that anomalous pleas must always be supported by an answer in subsidium as to the allegations which constitute the replication and as to all charges of evidence, if any, in support of such allegations. Langd. Eq. Pl. § 101; Beames, Eq. Pl. 171. The plea in this case is not accompanied by an answer. No objection is made, however, to it on that account. On the subject of concealment the bill merely alleges that the defendant, while cashier and president, concealed the fraud, so that the complainants did not discover it until 1881, and it prays answer without oath. A mere unsworn general denial would therefore have answered the call of the bill in respect to the alleged concealment. The object in requiring the answer is to obtain a discovery which may prove a case which will displace the bar. But where the bill contains a general charge of fraud merely, with no specification, and waives answer upon oath, discovery in aid of the complainants’ charge of fraud is practically and substantially waived also. In view of these considerations, and of the fact that no objection is made on the ground that the defendant has not answered, the requirement of the rule may in this case very properly be disregarded. The plea is good in form and substance.

1. WILL—LEGACIES—WHEN A CHARGE.

When legacies are given generally, and the residue of the real and personal estate is afterwards given in one mass, the legacies are a charge upon the real as well as personal estate.1

2. SAME—IDENTIFICATION 0F DEVISEE.

If the description of the person, whether natural or civil, in a devise, be made with suflicient certainty so that the person intended may be distinguished from every other person, trifling omissions or misprisions will not make the devise invalid; for the use of names or descriptions is but to make a distinction between erson and person, and therefore it is sufficient if the person be so called or escribed that he or it may be distinguished from every other. \

Bill for legacy. On final hearing on pleadings and proofs.
Opinion states the facts.

0. Parker, for complainants.

A. C. Hartshome, for administrator c. t. a.

RUNYON, Ch. This suit is brought to recover a. legacy of $3,000 given by the will of Mrs. Anne D. Wallack to the complainants (as they allege) by the name of the American Dramatic Fund. The bill is filed against William F. Lett, who was the acting executor, but was removed in 1883, and George W. Brown, who was appointed administrator de bonis mm mm testamento annexo in his stead. Lett is now the owner of the residuary estate, by purchase thereof. By the will, which was made in 1873, the testatrix, who died in 1879, gave all her estate, real and personal, after payment of her debts and funeral expenses, to her husband, James \V. Wallack, for life, (he predeceased her,) and gave her executors power to sell and convert into money all her real estate after the decease of her husband, or with his consent in his life-time, and invest the proceeds; and directed them, after his death, to pay out of her estate an annuity (to Nannie Taylor) and certain legacies of specified sums of money, and the residue of the income to the testatrix’s mother, Mrs. Caroline Blake, for life; and she directed that, upon the decease of her mother, her executors pay to Mrs. Margaret 0. Blake, widow of Dr. Lewis W. Blake, $2,500, in case she should be unmarried; to the American Dramatic Fund $3,000; and to the institution known as Sister Irene’s Foundling Hospital $3,000. She ordered that the rest of her estate descend and be distributed according to the laws of this state regulating descents and distributions in cases of intestacy. One of the annuitants, Mrs. Caroline Blake, is dead.

Two questions are submitted for decision. One is whether the legacy in dispute is charged upon the testatrix’s real estate, and the other is whether the complainants are entitled to it. That the legacy is charged upon the real estate there can be no doubt. The testatrix directs her executors to convert her real property, and invest the proceeds, and pay the income thereof to her husband for life, and, upon his decease, to pay “out of her estate” the annuity to Nannie Taylor, and certain legacies of specified sums of money, and the rest of the income to her mother for life; and on the death of her mother, she gives, and directs her executors to pay “out of her estate,” a legacy of $2,500 in a certain contingency, thelegacy in dispute, and another; and gives all the rest, residue, and remainder of her “estate, real and personal,” to descend and be distributed, etc. Where legacies are given generally, and the residue of the real and personal estate is afterwards given in one mass, the legacies are a charge upon the real as well as personal estate. Corun'ne v. Corwine, 24 , N. J. Eq. 579; Hawk. Wills, 299.

The complainants are a benevolent corporation of the state of New York, and are located in the city of New York. The objects of the corporation are, according to the charter, to raise, by subscription, donations, and bequests from members thereof, and others, by theatrical ben

efits, and annual festivals, a fund to be devoted to making provision for the support of members thereof. who, by age, sickness, or accident, are incapacitated from pursuing their professional calling, and for the support of the widows and orphans of the members, and for the purpose of vdefraying the funeral expenses of members, and for such other similar purposes as the corporation shall deem meet and expedient. The testatrix, who was a tragedian, was a member of the association at the time of her death, and had been such since 1851. Her husband, who was also a tragedian, was a member. Her mother, her step-father, and two uncles of hers were members. The corporation is commonly known by the name of the American Dramatic Fund. The word “association” is seldom used as part of its name in speaking of it. There is no other corporation or association of the same or similar name. A corporation in a devise, grant, or obligation will not prevent it from taking or recovering its true name. Allowny’s Greek Zip. v. String, 10 N. J. Law, 323; 1 Powell, Dev. 338. If the description of the person, whether natural or civil, in a devise, be made with sufficient certainty so that the person intended may be distinguished from every other person, trifling omissions or misprisons will not make the devise invalid; for the use of names or descriptions is but to make a distinction between person and person, and therefore it is sufficient if the person be so called or described that he or it may be distinguished from every other. 1 Powell, Dev. 338. Where the legatee or devisee is inaccurately named or described, so that there is no one who fully answers the name or description, the court will, it" possible, gather from the contents of the will and the surroundingcircumstances who was meant. Theob. Wills, 111. These familiar principles haVe been so frequently applied in this court as to render any citation of instances wholly unnecessary. There can be no doubt that in the bequest under consideration the testatrix intended to give the legacy to the complainant.

The administrator did not enter upon his duties, as such, until June, 1885, (the bill was filed in December, 1884,) although he was appointed in April, 1883; but there would seem, from his own testimony, to be enough assets in his hands. The bill has been taken as confessed against him. There should be a decree against both of them, with costs;'but, as to the administrator, the decree should be for payment of the legacy and the costs out of the assets of the estate in the due course of adminis.tration.

HUSBAND AND WIFE—DIVORCE—MARRIAGE UNDER DURESS—IMPRISONMENT FOR ATTEMPTING 'ro PROCURE ABORTION.

Where a man who has been guilty of illicit intercourse with a woman, and, supposing her to be pregnant as the result thereof, furnishes her with the means of producing abortion for the purpose of preventing the apprehended birth of the ofispring, and criminal proceedings are lawfully instituted against him with a view to punishing him for the latter offense, and, being under ar