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(to secure which the mortgage was given) was that the mortgagor should pay the principal, the interest, and the premium at such times and in such places as were provided for by the constitution and by-laws of the association. The by-laws provide (section 7) that every member, for each share of stock held, shall be entitled to the loan of $200; and in section 6 that the premium paid for the prior right to a loan of $200, or the multiple thereof, shall be at a rate per share, and shall be payable monthly by the stockholder borrowing. Now, the point made is that, inasmuch as this loan of $5,000 was made originally to Zane by virtue of his holding the original 25 shares thereof, therefore the condition of the bond in respect to the payment of premiums, etc., refers to the premiums to be paid upon those shares. In connection with this insistence it is also pointed out that the substitutions of shares in the two instances mentioned, viz. on June 5, 1894, and August 28, 1895, were made upon applications for a loan, as if the loan of $5,000 was regarded as a new transaction occurring at those dates, and as made to Zane as the holder of the new series of stock held by him at the times of the respective applications. Inasmuch as the original shares have ceased to exist, and with their extinguishment has ceased the duty to pay the dues and premiums upon them, it is argued that the condition of the bond has not been broken, or, rather, has been performed, and the mortgage satisfied. I am unable to assent to this proposition. A part of the scheme provided by the by-laws of this association, like that of all such organizations, was to enable the shareholder to receive, in anticipation, the tured value of his shares. The loan so received, it was expected, would be paid by the application to it of the value of the shares when the value of each should amount to $200. The language of the condition in the bond was employed in view of this well-understood purpose. The $5,000 was to be paid through the monthly payments of interest, dues, and premiums for such period as would be required to mature 25 shares of stock. The substantial feature of the condition was that the mortgagor should have the right to pay by the application of the matured shares. The shares upon which the payments were to be made were originally the 10 shares of the seventh series and 15 shares of the eighth series. When, however, on June 5, 1893, the association consented to release the original shares, and accept others in their stead, thereafter the condition in the bond, by the very quality of the transaction, required the payment of the interest, premiums, and dues upon the new shares until they matured. The same consequence followed the second substitution. The condition thereafter required the payment of the interest and dues upon the shares in the fourteenth series until they became

worth $200 each. There never was a performance of the condition of the bond, nor a satisfaction of the mortgage.

But there is another question involved in the cause. This question is whether, as between the second mortgagee and the association, the former is entitled to have the withdrawal values of the shares released deducted from the amount due to the association. This query is not propounded upon the notion that the value of the shares was to be applied as pro tanto payment of the mortgage; for it is entirely settled that payment of dues upon the stock is not a payment upon the mortgage debt, and does not, ipso facto, work an extinguishment pro tanto of the mortgage. 2 Am. & Eng. Enc. Law, 639; Association v. Conover, 13 N. J. Eq. 219; Herbert v. Association, 17 N. J. Eq. 497; Association v. Martin, 13 N. J. Eq. 428; Association v. Vandervere, 11 N. J. Eq. 382; Association v. Hornbaker, 42 N. J. Law, 635. The question is one involving the doctrine of marshaling. The position of the parties at the time of the release of the shares was this: The association held the first mortgage, with the subsequently released shares as collateral security, the defendant holding a second mortgage. Here there was, then, the association, the older creditor, holding two securities, viz. the mortgaged premises and the shares of stock, and a second mortgagee, the junior creditor, with a lien upon the mortgaged premises alone. The right of the latter to demand of the former that he should apply the security peculiar to himself was clear, and the rule seems equally clear that if the older creditor, having knowledge of the junior incumbrance, released his peculiar security, be ran the risk of having its value charged against him if the common security is insufficient to pay both debts. Reilly v. Mayer, 12 N. J. Eq. 55; Association v. Beaghen, 27 N. J. Eq. 99. But the junior incumbrancer can successfully complain only when it appears that the security was released after the older creditor had notice of the existence of the junior incumbrance. There is nothing to prove that the association was chargeable, at the time of the substitution of the shares, with knowledge of the existence of the mortgages to Sudbury. Zane himself was a director, and he, of course, had notice, as the maker of the subsequent mortgages; but he took no part, as a director, in the transaction of which the substitutions were a part. In these transactions he was acting independently of the board. He was acting for himself, and the other directors were acting for the association. He was asking of the association that they should pay him the value of the shares which he individually held. Knowledge of his private transactions cannot, under these circumstances, be imputed to the association. Bank v. Christopher, 40 N. J. Law, 435. I will advise a decree for the complainant.

TITLE GUARANTEE & TRUST CO. v. TRENTON POTTERIES CO. (Court of Errors and Appeals of New Jersey. Sept. 20, 1897.)

FOREIGN LAWS-EVIDENCE-CONSTITUTIONAL PRO

VISIONS.

1. In conformity with the general rule which admits in evidence the opinions of skilled witnesses on all subjects of science, the existence and meaning of the laws, as well written as unwritten, of another state, may be proved by calling professional persons to give their opinions on the subject.

2. The federal constitution (article 4, § 1), supplemented by the act of congress of May 26, 1790, does not provide an exclusive method for proving the public acts of the various states of our Union.

(Syllabus by the Court.)

Appeal from court of chancery.

Suit by the Title Guarantee & Trust Company against the Trenton Potteries Company. From an order dissolving an injunction the complainant appeals. Affirmed.

Corbin & Corbin, for appellant. James Buchanan and Howard R. Bayne, for respond

ent.

GUMMERE, J. The appellant, the Title Guarantee & Trust Company, is a corporation organized under the laws of the state of New York, and the respondent, the Trenton Potteries Company, is a corporation organized under the laws of the state of New Jersey. On the 27th day of September, 1895, the potteries company commenced an action against the title company in the New York supreme court upon a policy of insurance issued to it by the latter company. On October 16, 1895, the title company, after having been served with process and a copy of the complaint in the New York suit, filed its bill in the court of chancery of this state, alleging a mistake in said policy, and praying that the same be rectified and reformed, and that the potteries company might be restrained from further prosecuting the suit then pending in the New York supreme court, on the ground that, if it was permitted to proceed with said suit before the policy was so reformed as to set out the true agreement of the parties, a judgment would necessarily go against the appellant. A preliminary injunction having been ordered pursuant to the prayer of the bill, the potteries company filed its answer, setting up, among other things, that under the law of the state of New York the title company was entitled to all the relief and remedies, as defendant in the action brought against it in the New York court, that it sought to obtain by the bill filed by it in the court of chancery. This allegation in the answer was verified by the affidavit of a New York counsel, learned in the law of that state, who testified "that the defendant in the New York action is entitled, under the New York law, to all the relief and remedies as defendant in that action that it could obtain or has prayed for as complainant in its New

Jersey suit. The formal distinction between law and equity having been abolished in this state [New York], the defendant in an action at law here is entitled to plead as many defenses as he may have, whether they are legal or equitable, whether he pleads simply a defense or bar without asking affirmative relief, or whether he pleads new matter constituting a counterclaim, or equitable set-off, or recoupment, or matter in the nature of a cross bill under the old system, and asks affirmative relief. These rights and remedies are given to defendant by express legislative enactment, and have for many years been repeatedly recognized and enforced by all the courts in this state." Upon the coming in of the answer and accompanying affidavits, the preliminary injunction was dissolved, and from the order of dissolution this appeal is taken.

The respondent, having selected a court of the domicile of the appellant as the forum in which to try the matters in issue between them involved in the suit brought by it, is entitled to have those matters finally determined in that forum, provided the appellant can, in its defense in that suit, show the real agreement between the parties as fully as it would be permitted to do in its suit brought here for the reformation of the written contract. It was because of the allegation in its bill that it could not successfully defend in the New York court until there was an actual reformation of the policy of insurance that the chancellor granted the injunction, and it was because of the denial of this allegation by the respondent in its answer, supported by the affidavit of New York counsel, that the injunction was dissolved. But it is said by the appellant that, admitting it to be true that the respondent is entitled to have the matters involved in the New York suit disposed of in the New York court, provided appellant can, in its defense in that suit, show the real agreement of the parties, there is nothing in the case as it stands before us to justify the conclusion that the statement of the answer in that regard is true. The argument in support of this contention is as follows: In the absence of proof to the contrary, it will be presumed by the courts of this state that the common law is in force in the state of New York; that by the rules of the common law the appellant could not, in an action at law brought against it for breach of a written contract, show that by mistake of the parties the writing did not set forth the real agreement between them; and that the presumption that the common law prevails in New York is not overcome by the affidavit of the New York counsel, annexed to the answer, for the reason that it attempts to show that the rule in question has been abrogated by statute, and that the only legal method of proving the existence of a statute of a foreign state is not by the testimony of counsel of that state, but by the production of a duly-authenticated copy of the instrument

itself. While it is entirely true that, in the absence of proof to the contrary, the courts of New Jersey will presume that the common law prevails in a sister state, I cannot agree to the proposition that the only method of rebutting this presumption is the production of a copy of the statute which abrogates the common-law rule, the existence of which is challenged. Mr. Taylor, in his work on Evidence (volume 2, § 1423), in dealing with this question, says: "In conformity with the general rule which admits in evidence the opinions of skilled witnesses on all subjects of science, the existence and meaning of the laws, as well written as unwritten, of foreign states, may be proved by calling professional persons to give their opinions on the subject." That this is the correct rule seems to me to be plain both on principle and on authority. In order to know what the law of a foreign state is on a given subject, we need something more than the production of the statute, for that only gives the words in which the law is written. The question to be determined is not what the language of the law is, but what the law is altogether, as shown by exposition, interpretation, and adjudication; and this, I take it, can only be ascertained by the testimony of a professional witness whose special knowledge enables him to speak as to that fact. Lord Langdale, in the well-considered case of Nelson v. Lord Bridport, 8 Beav. 535, uses the following language in discussing this subject: "The foreign law, and its application, like any other results of knowledge and experience in matters of which no knowledge is imputed to the judge, must be proved, as facts are proved, by appropriate evidence; i. e. by properly qualified witnesses, who can state from their own knowledge and experience, gained by study and practice, not only what are the words in which the law is expressed, but also what is the proper interpretation of those words, and the legal meaning and effect of them as applied to the case in question." Coleridge, J., in Baron De Bode's Case, 8 Q. B. 265, considering the same questions, says: "What, in truth, is it that we ask the witness? Not to tell us what the written law states, but, generally, what the law is. The question is not as to the language of the written law, for, when that language is before us, we have no means by which to construe it. How many errors might result if a foreign court attempted to collect the law from the language of some of our statutes which declare instruments in particular cases to be 'null and void to all intents and purposes,' while an English lawyer would state that they were good against the grantor, and that the courts have so expounded the statutes. It is no answer to say that other evidence by word of mouth may be added for the purpose of giving the interpretation of the written law. I am merely showing that our courts require, not the actual written words of a foreign law, but the law itself; for which

purpose a professional witness is required to expound it." Lord Denman, in the case last

cited, says: "It is objected that this [i. e. permitting a professional witness to testify concerning the written law] is a violation of the general principle that the contents of a written instrument can be shown only by producing the instrument or accounting for its nonproduction. But there is another general rule: that the opinions of persons of science must be received as to the facts of their science. That rule applies to the evidence of legal men, and I think it is not confined to unwritten law, but extends also to the written law, which such men are bound to know. Properly speaking, the nature of such evidence is, not to set forth the contents of the written law, but its effect, and the state of law resulting from it. The mere contents, indeed, might often mislead persons not familiar with the particular system of law. The witness is called upon to state what law does result from the instrument." Shortly after the decision of Baron De Bode's Case in the queen's bench, the house of lords, in the Sussex Peerage Case, 11 Clark & F. 114, adopted the rule laid down by Lord Langdale in Nelson v. Lord Bridport and by the judges of the queen's bench in Baron De Bode's Case, and held that the existence and meaning of written as well as unwritten laws of a foreign state could be proved by calling professional witnesses to give their opinion on the subject.

The reasoning of the distinguished jurists from whose opinions I have quoted seems to me to be unanswerable. But we are told that the rule established in England has no place in the jurisprudence of this country, because (as it is said) the federal constitution, supplemented by the act of congress of May 26, 1790, provides the exclusive method of proving an act of the legislature of a sister state. The constitutional provision invoked is found in article 4, § 1, of that instrument, and provides that congress may, by general laws, prescribe the manner in which the public acts of a state shall be proved; and the act of congress of 1790, passed in pursuance of this provision, declares "that the acts of the legislature of any state or territory shall be authenticated by having the seals of such state or territory affixed thereto." Rev. St. U. S. c. 17, § 905. Conceding that, by virtue of the constitutional provision referred to, congress has power to fix an exclusive method for proving the public acts of the various states, it does not seem to me that they have done so by the act of 1790. Prior to the passage of that act, and notwithstanding the existence of the constitutional provision, the only method of proving the written law of another state was that pointed out by the common law. By the act of 1790, congress provided another method by which this could be done, namely, by the production of a copy of the act sought to be prov ed, duly-authenticated by having the seal of the state affixed; but surely, if it had been intended to abolish the common-law rule, and

provide an additional method for proving the statutes of the several states, very different language would have been used,-words which would have at least suggested the idea that such an intent existed. That it has not been supposed, either by the bench or the bar of this state, that the act of congress of 1790 provided the only mode of proving the written law of our sister states, is shown by the inveterate practice of the past half century. On March 2, 1847, our legislature enacted "that the printed statute books and pamphlet session laws of any of the United States, printed and published by the direction or authority of such state, shall be received as evidence of the public laws of such state, in any court of this state" (Gen. St. p. 1401, § 22); and ever since the enactment of that statute the ordinary method of proving, in our courts, the statutes of other states, has been the method provided thereby; and yet, if it be true that congress, in pursuance of the authority vested in it by the federal constitution, has prescribed the only manner in which the public acts of a state can be proved, our statute of 1847 is a nullity, and the mode of proof which has so long prevailed in our courts is altogether irregular and illegal. Even if I had doubts on the subject, I should be unwilling, in view of the long-established practice in our courts to which I have adverted, to say that congress had, by the statute of 1790, provided the only method of proving the written law of a sister state, and had abolished the common-law rule which had theretofore exist

ed.

But, as I have already said, in my view the statute referred to merely provided an additional method of proof, and did not abrogate the common-law rule.

The conclusion reached is that the chancellor was clearly right in considering that the affidavit of the New York counsel annexed to the inswer in this case was competent evidence to show the state of the law in New York on the right of a defendant in an action at law to prove that the written contract sued upon did not, by reason of mistake of the parties, show the real agreement between them; and, further, to prove what the real agreement was. This being so, there was no error in his ordering the injunction to be dissolved. The order of dissolution is affirmed, with costs to the respondents.

ELLISON et al. v. GRAY.

(Court of Errors and Appeals of New Jersey. Sept. 9, 1897.)

APPEAL-FINAL ORDER.

Where one of two claims was disallowed in insolvency, the finding was interlocutory, and not a final order. Per Collins, J.

For majority opinion, see 37 Atl. 1018.

COLLINS, J. If the appellants had been adjudged to have no valid claim against the insolvent corporation, and therefore had been

dismissed from the cause, I should concur in opinion, with the majority of this court, that the order appealed from was in the nature of a final decree. ture of a final decree. Such, however, was not the case, and a different situation is presented. The appellants had two claims, of which one only was disallowed. They therefore retain a standing until final distribution. An adjudication that a claimant is a creditor, and even definitely fixing the amount of his debt, is just as much interlocutory as is, for example, an adjudication establishing a mortgage lien, and fixing the amount, but not decreeing foreclosure or sale. No one would think an appeal from such an interlocutory decree permissible after 40 days. The parties would be driven to raise their objections by appeal from the final decree. Such, also, I think, would be correct practice in the case in hand. Certainly expedition and economy would be subserved by treating the order for distribution as the final decree, and all previous orders as interlocutory only. The receiver may think that the determination of the chancellor as to various creditors or classes of creditors should be reviewed. He represents creditors generally, and they have a right to such review. He ought not to be driven to separate appeals as from separate decrees, but should have the right to bring before this court, in one appellate proceeding, all questions with creditors arising during the administration of his trust. I think, therefore, that this appeal should be dismissed as brought too late, and that the appellants should be left to an appeal from the order for distribution, which order, of course, will necessarily involve the interlocutory adjudication, and bring it within the scope of the appeal. Crane v. De Camp, 22 N. J. Eq. 614; Decker v. Ruckman, 28 N. J. Eq. 614.

On the merits of the controversy, I agree with the determination of the receiver.

SIEDLER et al. v. SYMS et al. (Court of Chancery of New Jersey. Sept. 20, 1897.)

PERPETUITIES-GIFT IN TRUST DURING CORPORATE EXISTENCE OF NATIONAL BANK.

Testator gave national bank stock to the bank's cashier, in trust to distribute the dividends to designated employés during the corporate existence of the bank, "either under its present charter, or by virtue of any renewals or extensions thereof." The bank was incorporated on June 19, 1865, for the period of 20 years, and its existence was extended 20 years under the federal law of 1882. Testator died in November, 1891, and no law then or has since existed authorizing any further extension. Held, that thegift violated the rule against perpetuities, and was void, in that the trust might not be completely performed in 21 years.

Bill by Grace Siedler and others against Parker Syms, executor of the estate of Samuel R. Syms, deceased, and others, for the construction of a will.

Washington B. Williams, for complainants. Charles L. Corbin, for trustee.

STEVENS, V. C. The controversy arises over the sixth clause of the will of Samuel R. Syms, who died in November, 1891. The The clause, so far as material, reads as follows: "Sixth. I direct my executors to transfer to such person as shall at the time of my death be the acting cashier of the First National Bank of Hoboken, New Jersey, eighty shares of the capital stock of said bank, now in my name, to be held and used by said cashier and his successor and successors in office in trust for the following uses and purposes, to wit: To collect and receive during the corporate existence of said bank, either under its present charter, or by virtue of any renewals or extensions thereof, the dividends made and declared payable from time to time thereon, and upon the first days of January in each and every year thereafter to divide and distribute such dividends equally among all the clerks and employés (including the cashier and janitor) of said bank who shall at the time of such distribution be actually employed therein, and whose employment in said bank shall have continued for a period of at least two years. In case said bank shall, by dissolution or otherwise, cease to exist, then and in that event I give and bequeath the said eighty shares of stock, together with any increase of shares thereon as aforesaid, or the money payable in lieu thereof, to the Bank Clerks' Mutual Benefit Association of the City of New York, to be held and invested by said association as a part of its permanent fund, and the income arising therefrom to be used and employed as may be directed by the constitution and bylaws of said association." It is plain that neither the bequest to the cashier of the First National Bank nor the bequest over to the Bank Clerks' Mutual Benefit Association is charitable. Not being charitable, the objection made to these bequests is that they violate the rule against perpetuities. The gift, in the first instance, is to the cashier of the bank and his successors, in trust to collect and receive during the corporate existence of the bank, either under its present charter, "or by virtue of any renewals or extensions thereof," the dividends received, and "on the first days of January of each and every year thereafter to divide" them among the employés designated. If this is a trust which is to continue more than 21 years from the death of the testator, it is invalid. The bank was incorporated on June 19, 1865, for the period of 20 years. Its corporate life would have ceased on June 19, 1885, had it not been extended for a further period of 20 years under the provisions of the federal law of 1882. Its charter will therefore expire on June 19, 1905. It is admitted that at testator's death there was no act of congress under which any further extension was authorized, nor is there now. If the testator had limited the gift to the corporate existence of the bank, I should have thought--as we could only deal with the facts as they were at the time of

testator's death, and as one of those facts was that the charter of the bank would expire within 21 years, and could not be extended beyond that time-that the gift was unobjectionable for the reason that the trust must have been completely performed within the legal period. But the testator has not limited the trust to the legal period. He has expressly declared that it shall continue during all renewals and extensions of its present charter. He has thus, in terms, provided for its indefinite prolongation,-for a prolongation which might perpetuate it far beyond the legal period. It is true that the life of the bank might terminate in 1905, either because of the refusal of congress to legislate further on the subject, or because of the refusal of the bank to continue its existence. But in the class of cases we are dealing with the question is not whether in the event that has happened or may happen the gift will have complete effect within the time prescribed, but, in the language of Baron Rolfe in Dungannon v. Smith, 12 Clark & F. *575, whether the gift, in all its different contingencies, must have such effect. It is an invariable principle in applying the rule in those cases, says Mr. Jarman, that regard is to be had to possible, not to actual, events; and the fact that the gift might have included objects too remote is fatal to its validity, irrespective of the event. 1 Jarm. Wills, *233. The decision in the case of First Presbyterian Church v. National State Bank, 57 N. J. Law, 27, 29 Atl. 320, affirmed in error, seems to me to have some pertinency to this part of the argument. There the bank had given to the church a sealed instrument in which it was agreed that, so long as the church would refrain from extending its buildings westward so as to obstruct the light on the south side of the bank building, "we [the bank] will pay to them [the trustees of the church] the yearly sum of $700, in quarter yearly payments, commencing on the first day of July next, and after that rate for any portion of a year." It appears from the record in that case that the bank was organized in 1865, and was to continue for 20 years. The covenant was made in 1872, and before any act of congress had authorized banks to prolong their existence. The bank took advantage of the act of 1882, and extended its corporate life for 20 years. One of the questions was whether the covenant was binding after the expiration of the original charter. I was counsel for the bank, and, both in the supreme court and in the court of errors, strenuously contended that this covenant must be read in connection with the charter and the act of congress, and that, so read, it was a contract to pay only during its original charter life; that at the time the covenant was entered into the law provided that at the end of 20 years the bank must terminate its existence, and that it must not thereafter perform any corporate act, except the act of winding itself up. But both courts, in ad

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