herd, 64 N. J. Eq. 401, 54 Atl. 806; Toppin | property, in the usual recognized sense of v. Moriarty, 59 N. J. Eq. 115, 44 Atl. 469. An examination of the adjudged cases generally leads to the conclusion that there is a substantial agreement of judicial thought on the following propositions, touching the original burial of the dead body, namely: (1) The duty is cast in the first instance upon the person in whose house a man dies to carry the body to the grave, covered, and to bury it decently at his own expense, unless some one having a more urgent duty or a greater right shall intervene. Patterson v. Patterson, 59 N. Y. 583, 17 Am. Rep. 384; Rex v. Stewart, 12 Ad. & E. 773. (2) The person upon whom this right and duty next falls is prima facie the personal representative; a duty is cast by law upon the executor or administrator to see to it that the body shall have a decent burial, and for the purpose of performing his duty he is entitled to its custody. By our statute he is allowed his reasonable expenses in that behalf as a preferred claim against the estate. Toppin v. Moriarty, 59 N. J. Eq. 115, 44 Atl. 469; 2 Wms. on Ex'r 165; Williams v. Williams, 20 C. D. 659, 51 L. J. Ch. 385. In Indiana and South Carolina, however, the next of kin are given the paramount right. (3) In case there shall be no personal representative, or he should see fit not to employ himself in the matter, the duty and right then devolves upon the next of kin to the deceased in the order of their kinship; that is to say, of the whole body comprising the next of kin those nearest of kin shall have the strongest right. Pettigrew v. Pettigrew, 207 Pa. 313, 56 Atl. 878, 64 L. R. A. 179, 99 Am. St. Rep. 795. (4) This, however, is not an invariable rule, because a more distant relative or even a friend not connected by ties of blood may have a superior right under exceptional circumstances to one nearer of kin, as was held in Scott v. Riley, 16 Phila. (Pa.) 106. And generally speaking the surviving husband or wife has the right to control the burial of the deceased spouse, as against the next of kin. Larson v. Chase, 47 Minn. 307, 50 N. W. 238, 14 L. R. A. 85, 28 Am. St. Rep. 370. (5) All the foregoing rules must, however, be subject in their application to the jurisdiction of this court whenever the same shall be properly invoked by the parties in interest. Perhaps it is stating their effect too broadly to call them rules; but they are guides to be considered and applied as the case may require when the occasion arises. It would be embarrassing in many cases to find that they were hard and fast rules and binding strictly on the conscience of the court because the court might find its duty to lie entirely beyond their scope. Each case must be dealt with separately, and in accordance with its own circumstances. The whole situation is admirably summed up in the opinion in Pierce v. Swan Point Cemetery, 10 R. I. 227, 14 Am. Rep. 667. It is there said: "Al the word, yet we may consider it as a sort of quasi property, to which certain persons may have rights, as they have duties to perform towards it, arising out of our common humanity. But the person having charge of it cannot be considered as the owner of it in any sense whatever. He holds it only as a sacred trust for the benefit of all who may from family or friendship have an interest in it, and we think that a court of equity may well regulate it as such, and change the custody if improperly managed. So in the case of custody of children, certain persons are prima facie entitled to their custody, yet the court will interfere and regulate it. We think these analogies furnish a rule for such a case, and one which will probably do most complete justice, as the court could always interfere in the case if improper conduct, e. g., preventing other relatives from visiting the place for the purpose of indulgence of feeling or testifying their respect or affection for the deceased." One other consideration needs to be mentioned, and that is the interest of the public. It is to the interest of the public that dead bodies should be interred decently and in order, and as soon as the circumstances of the case will permit; the public morals, the public health, the instincts of our common humanity, the customs of our people all demand that burial shall be so conducted. Under ordinary circumstances it would be the duty of the father, as next of kin and as the natural guardian of a deceased infant, to bury it and to meet all the expenses appertaining thereto, and he would have the corresponding right of possession for that purpose. It was so held in Burney v. Children's Hospital, 169 Mass. 57, 47 N. E. 401, 38 L. R. A. 413, 61 Am. St. Rep. 273. It is quite likely that such a disposition of the matter would generally be practicable and satisfactory. But the circumstances here are of such a character as to preclude any such disposition. The parents have assumed a position of intense hostility to each other; and there is little or no prospect of any agreement between them which will observe the proprieties or be considered more than temporarily binding on them. These considerations lead me to the conclusion that the burial of this child should be accomplished under the direction of this court with a view to compliance with the customs with which we are familiar, and the observance of the.decencies and proprieties of civilized life. The burial must be in the cemetery at Plainfield, in the receiving vault of which the body now lies. I am constrained to deny the application of the mother to permit the burial to take place in a foreign state, for two reasons: The first is that she has by her bill signified her consent that the burial shall take place in New Jersey; the other is that this court would have no N. J.) LOWENTRAUT v. JACKSON matters in dispute after the body was once beyond the boundary line of the state. It might be taken to New York or Massachusetts, or it might be concealed and so placed beyond the jurisdiction of this court. The burial must be in a plot of land to be provided by the father, but subject as to location and suitableness to the approval of a master of this court, who will be appointed for the purpose by the decree. His duty will be to see that the provisions of this decree touching the interment shall be carried out, and that no indecorous proceeding shall be had at the burial. In case a religious service should be desired at the grave the same must be conducted under the supervision of the master who will see to it that no unseemly or unbecoming acts are committed by the parties. The expense of opening and closing the grave, and such other expenses as are incident to the occasion must be borne by the father, and if he shall fail to make provision therefor within 15 days after the service of a copy of the decree on him furher application may be made on behalf of the mother for such relief as she may be thereupon entitled to. The decree will provide that after the burial shall have taken place the body of no other person shall be interred in the plot, without the allowance of this court, and that no monument, mausoleum, or other erection shall be made upon the plot, without the like allowance. These matters and any other matters that pertain to the burial plot will have to be made the subject of an independent application to the court. The decree will provide that the parents shall have equal rights of access to the grave; disputes concerning the same will be settled upon application to the court. (82 N. J. L. 525) DORDONI v. SMITH. (Court of Errors and Appeals of New Jersey. One is liable for procuring the arrest of another on a false complaint, charging disorderly conduct and that accused is of unsound mind. [Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. § 6; Dec. Dig. § 6.*] Swayze, Voorhees, Bogert, and Vroom, JJ., dissenting. Error to Circuit Court, Passaic County. Action by Constant Dordoni against Archibald H. Smith. Judgment for defendant, and plaintiff brings error. Reversed, and new 743 to a magistrate that the plaintiff was disorderly, to the annoyance of citizens and the disturbance of the peace, "being of unsound mind and in the opinion of deponent a lunatic." Thereupon the magistrate issued a warrant against the plaintiff as one "too furiously mad and dangerous to be permitted to go at large." The defendant was arrested, and subsequently discharged by order of the county physician. We think a jury might find that the complaint made by the defendant stated the facts untruly, and that the warrant issued by the magistrate was the natural result of the defendant's acts, and hence that the case is within the rule established in Navarino v. Dudrap, 66 N. J. Law, 620, 50 Atl. 353. It follows that it was error to direct a verdict for the defendant, and the judgment must be reversed, and a venire de novo awarded. SWAYZE, VOORHEES, BOGERT, and VROOM, JJ., dissent. (82 N. J. L. 402) LOW ENTRAUT et al. v. JACKSON. (Court of Errors and Appeals of New Jersey. Nov. 20, 1911.) EXECUTORS AND ADMINISTRATORS (§_416*)— INSOLVENT ESTATES-PAYMENT OF DEBTSLIABILITY FOR INTEREST. An executor of an insolvent estate must pay to the creditors such a percentage of their claims, principal and interest, as the funds will permit, and payments made by him from time to time go in reduction of the principal and interest then due, and where such payments exceed the interest due at the date of payment the excess must be applied on the principal. and Administrators, Cent. Dig. §§ 1652-1654; [Ed. Note.-For other cases, see Executors Dec. Dig. § 416.*] Error to Circuit Court, Essex County. Action by Peter Lowentraut, prosecuted after his death by Anna Lowentraut and another, executors, against Thomas W. JackThere was a judgment for defendant, Affirmed. and plaintiffs bring error. son. Lafferty & Pilgrim, for plaintiffs in error. W. Bradford Smith, for defendant in error. GUMMERE, C. J. The defendant was the holder of four promissory notes made by one Schaller, which fell due between October 15, 1901, and November 26th of that year. The aggregate of the notes was $7,289.34. Upon two of these notes, amounting together to $4,350.80, the plaintiff's testator, Peter Lowentraut, was indorser, and was responsible to the defendant for their payment, and before their maturity gave the defendant a bond and mortgage for $10,000, bearing interest at 5 per cent., to secure their payment, as well as the payment of a $5,000 note held by the defendant, upon which he was also an indorser. (This latter *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes before the court without a jury, and resulted in a judgment for the defendant. Subsequent to the entry of that judgment Lowentraut died, and, his death being sug gested on the record, an order was thereupon entered authorizing all further proceedings in the cause to be conducted in the names of his executors, the present plaintiffs in error, who now seek to have the judgment reversed. note was subsequently paid by a prior in-eys afterward paid by the Schaller estate to dorser, and cuts no figure in the present the defendant were, in law, paid to him for litigation.) About the time of the maturity the use of Lowentraut. The trial was had of the notes, Schaller, their maker, died without having paid them, and left an estate of doubtful solvency. The defendant proved his claim on the four notes with the executor of Schaller, and from time to time received payments on account thereof as follows: November 18, 1903, $2,573.08; May 4, 1904, $1,366.77; August 24, 1904, $508.06; March 18, 1905, $1,239.69; and on June 28, 1905, $729.23. No further payments were made to the defendant by the executor of Schaller up to January 15, 1907. On that day the plaintiff's testator called upon the defendant for the purpose of discharging his liability upon the two notes which he had indorsed, and obtaining the surrender and cancellation of the mortgage which he had given as collateral security. He prepared a statement showing that the amount for which he was then liable by reason of his indorsements, after crediting the payments which had been made by the Schaller estate to the defendant, was the sum of $1,076.83. The defendant testified that he did not dispute the accuracy of this statement, and agreed to accept that sum in satisfaction of Lowentraut's liability as indorser, and to deliver up the mortgage to him, upon condition that, if anything more was paid to the defendant by the Schaller estate, it should belong to him. We concur in the finding of the trial court. The trouble with the plaintiff's case is that it is based upon a theory which is untenable. In the first place, there was no proof that the estate of Schaller was insolvent. It was not settled as such, under the stat ute, so far as the proofs show, and the assets received by the executor were slightly in excess of the amount of the claims as proved against the estate. For all that appears to the contrary, the decedent may have left real estate which, if sold, would have produced a sum sufficient, when added to the funds distributed by the executor, to have satisfied all creditors in full. second place, even if the estate had been insolvent, that fact would not have relieved the executor from the obligation to pay interest upon the claim of creditors. He was bound to pay them such a percentage of their claims, both principal and interest, as the funds in his hands would permit. The payments made by him to the defendant from time to time went in reduction of the latter's claim as it existed at the time when they were made; that is, in reduction of the total principal and interest then due. In determining the amount due from a debtor to his creditor, the rule applicable to the calculation of interest, where payments have been made from time to time by the debtor in excess of the interest which has accrued up to the date when they are respectively made, is that the excess shall be deducted from the principal. Holcombe v. Holcombe, 74 N. J. Law, 257, 65 Atl. 855. A rough calculation, made upon this basis, will show that, at the time when Lowentraut made the $1,076.83 payment in exoneration of his liability upon the two notes on which he was indorser, the amount then due from the Schaller estate was in excess of $1,900. The Lowentraut payment, therefore, instead of more than satisfying the debt then due to the defendant from the Schaller estate, left that estate still in debt to him in the neighborhood of $900; and the final payment of $875.08 was not equal to the amount then due. Lowentraut, by whom this suit was originally instituted and prosecuted to judgment, did not deny that the settlement was made upon the terms testified to by the defendant, and those terms must, therefore, be accepted as the agreement between the parties. A little more than two years after the date of this settlement, and on January 15, 1907, the Schaller estate made a final payment of $875.08 to the defendant, and received from him a release from all further liability upon the notes. The theory upon which the present suit was rested by Lowentraut is that the Schaller estate was insolvent to such an extent as to be able to pay only the principal sum of the several notes held by the defendant against it, and that, consequently, neither Lowentraut nor the defendant had any right to look to it for interest upon the notes. Assuming the correctness of this theory, Lowentraut then contended that at the time of the settlement between himself and the defendant the whole of the latter's claim against the Schaller estate had been satisfied by the payments hereinbefore recited, except the sum of $875; that the money paid by him at the settlement was an overpayment to the extent of $201, which he was entitled to recover back upon the ground of mistake; and that the mon- firmed. The judgment under review will be af N. J.) (82 N. J. L. 144) SEE v. PUBLIC SERVICE RY. CO. SEE v. PUBLIC SERVICE RY. CO. (Supreme Court of New Jersey. Dec. 9, 1911.) (Syllabus by the Court.) 1. STREET RAILROADS (§ 117*)-OPERATIONACTIONS FOR INJURIES-QUESTION FOR JURY. The driver of a truck heavily ladened with fruit, approaching a trolley track, his horse being on a walk and about nine feet from the track, saw a car coming very fast about 200 feet away, continued his course, at the same gait, across the track, and before the rear end of the truck had entirely cleared the track it was struck by the car and upset, injuring and damaging the horse, truck, and fruit. Held, that the court committed no error in submitting the question whether the driver exercised due care in crossing the track to the jury for determination. 745 any one walking or driving out of said yard to see any vehicle going or coming on Henderson street, in either direction, until the fence line of said yard is passed. The defendant maintained two trolley tracks on Henderson street, upon which its cars were operated. The distance from the fence line to the most easterly rail of the north-bound track was 23 feet. The entire length of horse and truck was conceded at the trial to be 25 feet. The collision took place shortly after midnight, and at a place which was lighted up by electric lights. [1] According to the driver's story, he was driving slowly through the gateway of the yard, his truck being heavily loaded with [Ed. Note.-For other cases, see Street Rail- fruit, and when he attained a position about roads, Cent. Dig. §§ 239-257; Dec. Dig. 2 feet beyond the fence line he then perceiv117.*] 2. APPEAL AND ERROR (§ 207*)-PRESENTA-ed a trolley car about 200 feet or more disTION OF QUESTIONS IN LOWER COURT-RE- tant, approaching "pretty fast" on the northMARKS OF COUNSEL. bound track. At this juncture, the horse must have been within 9 feet of the easterly rail of the north-bound track. The driv Although the remarks of counsel for plaintiff in summing up were improper, they were discontinued, upon objection being made thereto by defendant's counsel, and the court was not asked to admonish counsel; nor was there any request made to the court to charge the jury to disregard them; nor was there any refusal on part of the court to interpose; and therefore no basis was laid for a yalid assignment of error, requiring a reversal of the judgment. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1500; Dec. Dig. § 207.*] (Additional Syllabus by Editorial Staff.) 3. EVIDENCE (§ 317*)-HEARSAY-WHAT CON STITUTES. In an action against a street railway company, in which plaintiff sought damages for injuries to his horse, testimony of a witness to whom plaintiff turned over the horse to be sold, as to whether he could sell him, was not objectionable as hearsay. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.*] Appeal from District Court of Hoboken. Action by J. Albert See against the Public Service Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. Argued June term, 1911, before GARRISON, TRENCHARD, and KALISCH, JJ. Edwards & Smith, for appellant. Weller & Lichtenstein, for appellee. er continued on his course at the same gait, and bearing to the north across the track, and had nearly succeeded in clearing the track of the truck when "the car just struck the tail end of it," as the driver puts it, thereby upsetting it and the horse, and causing considerable loss and damage. The undisputed facts make it manifest that the case was one peculiarly within the province of the jury to decide. The entire length of the horse and truck was 25 feet. The distance from the fence line to the most easterly rail of the north-bound track was 23 feet. The situation was such that the horse, as soon as he emerged from bemotorman, if in the performance of his duhind the fence, would become visible to the ties he was on the alert to observe the contruck would be in a position to see the apdition of the street, before the driver of the proach of the car. The horse and truck, going slowly, traveled a distance, therefore, of 23 feet, and in addition thereto almost the distance of their entire length of 25 feet, in full view of the motorman, before the impact came. A reasonable inference to be drawn from such a state of facts would be that the motorman must have disKALISCH, J. The plaintiff brought his regarded his duty to keep his car under conaction against the defendant to recover dam- trol or in check to avoid colliding with the ages which the plaintiff sustained to his truck. The driver of the truck was entitled property as a result of a collision which took to believe that the motorman would respect place on Henderson street, in Jersey City, his right to cross the track, if he were in a between a car of the defendant company and position where he might reasonably believe a heavily loaded, one-horse truck, which was he could do so with reasonable safety, if being driven across the trolley track on both he and the motorman were in the exersaid street. Henderson street, where the cise of reasonable care; and the fact that he collision occurred, runs north and south. On had nearly cleared the track of the truck bethe east side of Henderson street, between fore the impact came, although he was drivSecond and Third streets, is the freightyard ing slowly, strongly emphasizes his reliance of the Pennsylvania Railroad Company. This on that belief. There is nothing in the tesyard is inclosed by a high board fence, and timony which in the slightest indicates that the conceded fact is that it is impossible for the driver of the truck had any reason to *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes is made a party to a foreclosure suit against a A mortgagor in a usurious mortgage, who purchaser, subject to the lien of the mortgage, may assert the defense of usury as against a liability for any deficiency. [Ed. Note. For other cases, see Usury, Cent. 3. USURY (§ 82*)-FORECLOSURE - DEFENSE — Dig. 162; Dec. Dig. § 82.*] AVAILABILITY. believe that his right to cross the track in 12. USURY (§ 82*)-FORECLOSURE - DEFENSE — safety would not be recognized by the motorAVAILABILITY. man. Nor was the driver of the truck to be charged with notice, because the car was approaching rapidly, that it could not be controlled or brought in check in time to avoid colliding with the truck. Peterpolo v. Public Service Ry. Co. (Court of Errors and Appeals) 79 Atl. 307, reversing the Supreme Court in 79 N. J. Law, 290, 75 Atl. 889. [3] Another reason advanced by the appellant for a reversal of the judgment is that the court erred in permitting one Mr. Callison, on page 113 of the case, to answer this question, "Could you sell him?" upon the ground that it was hearsay testimony. This question related to the effort, made by the witness, to sell the horse who had been turned over to him by the plaintiff for the purpose. It is obvious that the question was directed to the personal knowledge of the witness as to his own acts, and was therefore unobjectionable on the ground taken by counsel. [2] It is strenously insisted by appellant that the judgment should be reversed, because the court allowed the plaintiff's counsel, in summing up, to make improper remarks to the jury. The remarks of plaintiff's counsel in summing up, although apparently provoked by remarks made by appellant's counsel, were, nevertheless, in some instances improper, but upon objection made they were discontinued. There was no request made by appellant's counsel to the court, either to admonish plaintiff's counsel, or to charge the jury to disregard such objectionable remarks. There was no refusal of the court to interpose. "Where counsel in summing up proceeds to dilate upon facts not in evidence, or to press upon the jury considerations which the jury would have no right to regard, it is the plain duty of the court, upon objection made, to interpose; and a refusal of the court to interpose, where otherwise the right of the party would be prejudiced, would be legal error." Blackman v. West Jersey & Seashore R. R. Co., 68 N. J. Law, 5, 52 Atl. 371. An examination of the other alleged errors relied on by the appellant for reversal discloses them to be without substance. Judgment will be affirmed. (79 N. J. E. 466) SCULL et al. v. IDLER et al. (Court of Chancery of New Jersey. Nov. 29, 1911.) 1. USURY (§ 82*)-FORECLOSURE OF MORTGAGE -DEFENSE-AVAILABILITY. A bill to foreclose, which alleges that the mortgagor, after the execution of the mortgage, conveyed to a third person, that whatever interests the third person acquired were subject to the interests of complainant, who is without knowledge whether the conveyance was an absolute one, or whether an interest was reserved the purchaser purchased the equity of redempin the mortgagor, does not directly aver that tion subject to the mortgage; and the defense that the mortgage is usurious is available. [Ed. Note.-For other cases, see Usury, Dec. Dig. § 82.*] Suit by Abigail D. Scull and another, executrices, against Howard P. Idler and others, to foreclose a mortgage. tered on bill and answer. The bill is filed to foreclose a mortgage made to complainants' testator by defendants, Lucretia P. Idler and Charles A. Idler. By an averment of the bill, hereinafter quoted, it appears that, subsequent to the date of the record of complainants' mortgage, the mortgaged premises were conveyed by the The mortgagors are made defendants under mortgagors to defendant Howard P. Idler. an averment of the bill to the effect that, notdefendant Charles A. Idler, they may have withstanding the conveyance to their son, retained an interest in the mortgaged prem ises. The three defendants above named have answered. Their answer specifically and sufficiently discloses that the mortgage in question is usurious, and denies no averments of the bill, except the averments touching the amount of the original indebtedness. Hearing has been had on the bill and answer. William M. Clevenger, for complainants. H. Starr Giddings, for defendants. LEAMING, V. C. (after stating the facts as above). [1] It has been repeatedly held by the courts of this state that the purchaser of a mere equity of redemption in premises covered by a usurious mortgage, who buys subject to the lien of such mortgage, cannot set up usury as a defense to the incumbrance; the repudiation of the mortgage by such purchaser would inure to his benefit against the terms of his purchase, and would not inure to the benefit of the In Warwick v. Dawes, A purchaser of a mere equity of redemp-original borrower. tion in premises covered by a usurious mortgage, who purchased subject to the lien of the mortgage, cannot set up usury as a defense to the mortgage. [Ed. Note.-For other cases, see Usury, Cent. Dig. 162; Dec. Dig. § 82.*] 26 N. J. Eq. 548, 556, this principle was applied where the purchase was made at a sale under a decree of foreclosure of a second mortgage; the purchaser in that case having made his purchase with reference to the ex |