The first ground is that the commissioners appointed one Emmett Smith, who was the city surveyor, to prepare the necessary maps, and do the engineering and surveying work required by them, in violation of the provisions of the city charter. In support of this objection the prosecutors appeal to section 58 of the charter, which provides that when an ordinance for the opening, extending, or widening of any street or avenue is introduced into the board of councilmen, it shall, before its passage, "be referred to the commissioners of assessment, and a city surveyor, not interested in such improvement, who shall thereupon make a map cf such improvement showing the real estate to be taken therefor, and all the property which in the judgment of said commissioners will be benefited thereby, designating each lot and parcel on said map by number," etc. It is a sufficient answer to this contention of the prosecutors to say that the assessment made by the commissioners in this case was neither for the opening, the extending, nor the widening of East Twenty-Second street, but for the improvement thereof in other ways, and that the making of improvements of the character of those for which this assessment is made is regulated by the sixty-second and sixty-third sections of the charter, and not by the fifty-eighth section thereof, which consequently has no application to the matter before us. But, even if it were otherwise, it is manifest, from a reading of the section, that it only prohibits a city surveyor, who is interested in a proposed improvement, from acting in matters connected with the preliminary assessment, and does not prevent him from rendering to the commissioners appointed to make the final assessment such services as they might require of him.

It is further objected by the prosecutors that the assessment put upon their lands is in excess of the benefits received by the improvenent. It is enough, on this point, to say that the proofs offered by the prosecutors in support of this contention are not of such a character as to justify this court in refusing to confirm the assessment. There is nothing which suggests that the commissioners, in making their assessment, have disregarded any rule of law, or been influenced by prejudice. An assessment will not be set aside because the commissioners might reasonably have reached a conclusion different from that at which they arrived. It must be made to appear affirmatively that their conclusion is erroneous. It is their

who are called as witnesses, which is controlling; and, in order to warrant this court in interfering with their action, it must appear, as was said in Hegeman v. City of Passaic, 51 N. J. Law, 109, 16 Atl. 63, "that some rule of law has been violated, or that the assessments are so excessive or unreasonable that some rule of law must have been disregarded, through prejudice or misjudgment. It must be shown clearly that some injustice has been done before an assessment will be set aside on the facts."

The only other ground upon which the prosecutors seek to contest the confirmation of this assessment is that the commissioners did not assess all the lands which have been benefited by the improvement. But it is settled in this court that an objection of this kind will not be sustained unless it is made to appear that the failure of the commissioners to assess all property benefited has operated to injure the prosecutor, by imposing on his lands more than a proper assessment. Righter v. City of Newark, 45 N. J. Law, 104, 109; Davis v. City of Newark, 54 N. J. Law, 145, 147, 23 Atl. 276. In the present case, as has already been stated, the evidence fails to show that the assessment placed upon the property of the prosecutors is in excess of the benefits received from the improvement. But, even if the contrary had appeared, it would have been too late, after the final assessment had been made, to have taken advantage of the error. The charter of Bayonne (section 62) provides that, where an improvement such as is involved in this case is about to be made, the commissioners of assessment shall first "cause a survey and preliminary map to be made of said improvement, distinguishing each lot or parcel by numbers on said map, and they shall estimate the whole cost of said improvement according to the best of their judgment, and shall assess such estimated cost upon the lands and real estate benefited in proportion to the benefits received, and report the names of the owners of the lots or parcels with the amounts assessed to each, and file said report and map with the clerk of the city within twenty days thereafter." By the same section it is provided that the clerk shall give notice of the filing of the map and report in the manner therein specified. The sixty-fourth section of the charter provides "that all expenses and cost of proceedings for such improvements, when the same shall be completed shall be assessed by the commissioners of assessments upon, and be paid by, the lands and real estate benefited by the improvement, in proportion to the benefit received by said lands and real estate." Pamph. Laws 1872, pp. 717, 719. Evidently one of the objects to be attained in requiring a preliminary assessment to be made, and notice thereof to be given, was that the owners of property upon which the assessment was to be laid might be apprised, not only of the probable cost to them of the improvement, but also be afforded an opportunity of ascertaining whether in fact all property which

would be benefited thereby would be called upon to bear its proportion of the expense thereof; so that, if any legal objection to the extent of the assessment existed, it might be taken before the expense of making the improvement had been incurred. This, it seems to me, is made manifest by the fact that both the preliminary and final assessments are to be made upon the same property, viz. "upon the lands and real estate benefited by the improvement." The charter provision being that the final assessment should conform to the preliminary one, so far as the lands to be embraced therein are concerned, and the parties interested therein having been advised by the preliminary assessment of the lands upon which the final assessment would be laid, they cannot sit by, after receiving such notice, and permit the improvement to be made, and then take advantage of the error of the commissioners in cmitting lands which have been benefited thereby, and which should therefore have been included in the assessment. And this is equally true whether the assessment is made by the commissioners of assessment created by the charter, or by commissioners appointed by this court. The assessment should be affirmed, with costs to the defendants.

In the course of a trial upon an indictment, the court excluded certain persons from the court

The action of the court was objected to, but no exception was taken thereto. The writ of error is returned, with a record of the proceedings at the trial, duly certified, under the provisions of the supplement to the criminal procedure act approved May 9, 1894 (1 Gen. St. p. 1154, pl. 170). Held that, in the absence of an exception, this court cannot consider whether the action of the court deprived plaintiff in error of his constitutional right to a public trial, but only whether it appears from the record of the proceedings returned that he suffered manifest wrong or injury by such action.

(Syllabus by the Court.)

Error to court of general quarter sessions, Warren county; Morrow, Judge.

William F. Shields was convicted of abortion, and brings error. Affirmed.

The judgment returned with the writ of error is a judgment of conviction upon an indictment charging the crime of abortion. The proceedings certified by the trial judge contain the following statements: "In the progress of the trial, while the young woman, Lizzie Sliker, was on the stand, giving her testimony, she became nervous and embarrassed by a great number of men, young and old, gazing upon her. She seemed unable to proceed with her testimony on that account, and in the interests of justice, as well as of morality and decency, on account of the character of the testimony, and against the objection of the defendant's

counsel, I excluded from the court room the general public having no connection with the case on either side, permitting officers of the court and members of the bar to remain. The defendant did not ask that any particular person or number of persons should remain; the objection being to the exclusion of the public generally."

Argued June term, 1897, before MAGIE, C. J., and DEPUE, VAN SYCKEL, and GUMMERE, JJ.

George M. Shipman, for plaintiff in error. George A. Angle, for the State.

MAGIE, C. J. The act of the trial judge in excluding persons from the court room in the manner shown in the preceding statement forms the sole ground of complaint before us. While that act was objected to by plaintiff in error, he took no exception to it; and that the judge did so act is not shown by any bill of exceptions, but only by a certificate made under the supplement to the criminal procedure act, approved May 9, 1894 (1 Gen. St. p. 1154, pl. 170), returning with the writ of error what that act curiously calls the "record of the proceedings at the trial." It is obvious, therefore, that it is impossible to review the order complained of, as could be done if before us on a bill of exceptions, or to determine whether or not the trial judge lacked power to make such an order. All that the court can do upon the proceedings before us is to determine whether or not, assuming that the action of the trial judge was a matter of discretion, the plaintiff in error appears to have suffered manifest wrong or injury thereby. This leads to the affirmance of the judgment below, for there is nothing to indicate that any wrong or injury was suffered by him by reason of that order.

CUMMINGS et al. v. JACKSON et al. (Court of Errors and Appeals of New Jersey. Nov. 17, 1897.)

EQUITABLE MORTGAGE-WHAT CONSTITUTES-PRIORITY OF LIENS--VALIDITY.

1. A contract in writing to secure a debt which is duly specified therein, in which the parties expressly declare their intention to create a lien, by way of mortgage, upon certain real estate particularly mentioned and described in the writing, upon the failure of certain conditions fully set forth in the contract, is an equitable mortgage, and, upon nonpayment and breach of the conditions, may be foreclosed in the ordinary way in a court of equity, and the interest of the mortgagors in the lands so pledged sold to satisfy the debt.

2. When an agreement has been made that a mortgage shall be subject and subordinate to a subsequent lease of the same lands, provided and so long as certain payments mentioned in the agreement are made on the mortgage, a failure to make such payments will ipso facto restore the priority of the mortgage.

3. When a purchaser of lands assumes the payment of a mortgage thereon, and deducts the amount of the same from the consideration paid, he is precluded from assailing the validity of the

mortgage assumed, or denying that the amount assumed by him, and withheld from the purchase money, is a good and subsisting lien upon the lands.

(Syllabus by the Court.)

Appeal from court of chancery.

Action by James Jackson against Sylvanus D. Brown and Mary Brown, his wife, and others, to foreclose an instrument in writing given to secure the payment of money. From the decree, defendants James M. Cummings, Laura M. Roosevelt, and Ira D. Cummings appeal. Affirmed.

Dickinson, Thompson & McMaster, for appellants. William I. Lewis, for respondents.

NIXON, J. The controversy in the case under review grows out of the foreclosure of an instrument in writing, made on the 14th day of August, 1882, between Sylvanus D. Brown, and Mary Brown, his wife, and James Jackson, the respondent, in order to secure to Jackson the payment of $1,900 on the 1st day of August, 1883, and not sooner, unless the parties should elect to sooner repay the same, which writing was duly acknowledged and recorded. For the payment of this sum, the said instrument pledged 19 shares of stock in the Layton Iron Company, the rents, royalties, profits, and increase derived by Mary Brown by virtue of certain leases of mining properties, known as the "Pellington Mine" and the "Brown Mine," then held under leases by the Midvale Ore Company, the right, title, and interest of Sylvanus D. Brown in a certain agreement then made, and afterwards to be formally executed, with one John Huyler, and finally stipulated and provided "that in case the Midvale Ore Company should surrender up the aforesaid lease of the said Brown Mine, or either portion thereof, or the same should become forfeited in any manner, the said instrument providing both for surrender and forfeiture, then the transfer, assignment, and conveyance hereinbefore made of the rents, royalties, profits, etc., arising out of said lease, as collateral security for the debt herein before mentioned, shall be deemed to operate upon the real estate composing the said tract, known as the 'Brown Mine,' and being the subject-matter of the said lease, and this conveyance shall be held and construed to be a lien by way of mortgage upon the said real estate, as and for the said collateral security, subject to all the conditions and limitations herein contained, in so far as they may be applicable; the said two parcels of real estate being particularly bounded and described as follows, viz.: [Description of lands.]" No note or bond was given with this instrument. On March 12, 1886, Sylvanus D. Brown and Mary Brown, his wife, executed a mortgage on the same premises in question and other property, to James Jackson, Charles Du Pont Breck, and George Fisher, to secure the payment of $10,000, which was afterwards as

signed to Breck, in trust for himself, Jackson, and Fisher. On March 14, 1891, Mary Brown and her husband made a lease of all the iron ores and metals and mineral substances in or upon the lands in question, to A. G. N. Vermilya, reserving an annual rent therefor of $2,500, and providing for the forfeiture and making void of said lease on the failure to pay said rent. On the same day it was mutually agreed by the Browns, Vermilya, Jackson, and Breck that the rent reserved in said lease should be paid to Jackson until the "mortgages" given by the Browns to Jackson, and to Jackson, Breck, and Fisher, should be paid, and that the mortgages should be subordinate to the lease to Vermilya, "so long as the conditions and covenants of said conveyances are kept and performed by said Vermilya, his heirs, assigns, or legal representatives." On March 17, 1891, Vermilya and wife executed a mortgage of his interest in all the ores, metals, and mineral substances in or upon the lands in question, to James M. Cummings, to secure the sum of $25,000; and on March 24, 1891, Vermilya conveyed all his interest under the Brown lease to the Midvale Mining Company, subject to the conditions and reservations of rent contained in the lease from the Browns. On November 14, 1893, Mary Brown and her husband conveyed all their right, title, and interest in the Brown Mine lands to James M. Cummings, Laura M. Roosevelt, and Ira D. Cummings, the appellants.

The bill to foreclose the aforesaid instrument was filed August 8, 1894, and all the parties interested were made defendants; and the case was heard upon the bill, the answer, and cross bill of the appellants, and the answer and cross bill of the Midvale Mining Company, and the respective answers of Breck and Mary Brown, and the proofs; the bill having been taken as confessed against the other defendants. The chancellor decreed that the instrument set forth in the bill of complaint is a valid and subsisting incumbrance and lien, by way of mortgage, upon the estate, rights, and ap purtenances therein described, against all the defendants, and that there was due on the date of the decree to the complainant James Jackson $3,534, for principal and interest; that the mortgage executed by Mary Brown and her husband to pay James Jackson, Charles Du Pont Breck, and George Fisher to secure the payment of $10,000 is also a valid and subsisting lien upon the estate, ores, mining rights, etc., and that the sum of $8,738.25 found due thereon is entitled to be secondly paid; that the mortgage of Allen G. N. Vermilya and wife to James M. Cummings, on which the sum of $33,617.90 was due, is entitled to be thirdly paid; that "all the estate, rights, title, and interest which the said Mary Brown and Sylvanus D. Brown mortgaged to the said James Jackson by the said instrument, bearing

date of the 14th day of August, 1882, in the tracts of land described therein, be sold to raise and satisfy the several sums of money due"; and that the said defendants, and each of them, stand absolutely barred and foreclosed of and from any equity of redemption in the said mortgaged premises, to wit, of, in, and to "all the estate, ores, mining rights, title, and interest which the said Mary Brown and Sylvanus D. Brown, her husband, mortgaged to the said James Jackson, by said instrument bearing date August 14, 1882, when sold as aforesaid, by virtue of this decree." The foregoing are the only parts of the decree pertinent to the questions raised by the appeal. From each and every part of this decree, three of the defendants (the appellants) appealed, upon the following grounds: (1) That the instrument bearing date August 14, 1882, is not a mortgage, and does not contain words and language sufficient to convey an interest in real estate; (2) that, if held to be a mortgage upon real estate, it conveyed only an estate for the life of the mortgagors, and did not convey a fee therein; (3) that, if there was anything due under that instrument which could be held to be a lien upon the land, it was a much smaller amount than that named in the decree, and that some of the money paid to Jackson should have been credited on that instrument; (4) that, if the instrument is not a mortgage of real estate, no interest in the lands described can be sold under it; (5) that, if the instrument is not a mortgage, then no decree can be made in this case establishing the amount due upon any other lien on the premises; and (6) that no counsel fee or costs for searches should have been allowed.

It will be perceived that the primary question raised by the appeal is whether the instrument foreclosed is a valid and subsisting incumbrance and lien, by way of mortgage, upon the real estate, rights, and appurtenances described therein, and the answer to it will, at the same time, dispose of the fourth and fifth grounds of appeal. Counsel for the appellants have founded their argument that the instrument upon which this suit was brought is not a mortgage, and does not contain words sufficient to create a lien upon real estate, upon the common-law definition and construction of a "mortgage" formerly held in England and in some of the earlier decisions in this state.

ut the later and now almost universally accepted definition of a mortgage was given by Mr. Justice Depue in the case of Woodside v. Adams, 40 N. J. Law, 417, 422, where the learned judge said: "It may now be considered the established doctrine of the courts of this state that a mortgage of lands is not a common-law conveyance with a condition, but a mere security for the mortgage debt, the legal estate being considered subsisting in the mortgage only for that purpose." Mr. Justice Story, in Flagg v. Mann,

2 Sumn. 486, 533, Fed. Cas. No. 4,847, said: "If a transaction resolves itself into a security, whatever may be ..s form, and whatever name the parties may choose to give it, it is in equity a mortgage." Another distinction in mortgages should not be overlooked. We refer to that class called "equitable mortgages." Jones on Mortgages (4th Ed., § 162) says: "It has been noticed that a conveyance accompanied by a condition, contained either in the deed itself, or in the separate instrument executed at the same time, constitutes a legal mortgage at common law. In addition to these former instruments, which are properly entitled to the designation of 'mortgages,' 'deeds,' and 'contracts,' which are wanting in one or both of these characteristics of a common-law mortgage, are often used by parties for the purpose of pledging real property or some interest in it as security for a debt or obligation, and with the intention that they shall have effect as mortgages. Equity comes to the aid of parties in such cases, and gives effect to their intentions. Mortgages of this kind are called 'equitable mortgages.' There are many kinds of equitable mortgages, as many as there are varieties of ways in which parties may contract for security by pledging some interest in lands. Whatever the form of the contract may be, if it is intended thereby to create a security, it is an equitable mortgage." This This definition definition is peculiarly apt when applied to the instrument upon which this suit was founded. It was a writing expressly designed by the parties making it to secure a debt by pledging real property in the event that other anticipated sources of revenue mentioned therein failed of realization; and the two tracts of real estate upon which, in the language of the instrument, "this conveyance shall be held and construed as a lien, by way of mortgage," are specifically designated and described therein at length by metes and bounds. There is no ambiguity in the phraseology of the instrument from beginning to end. It specifies the debt it is intended to secure, and that its purpose is to create a lien, by way of mortgage, is clearly expressed, and the lands upon which it is to take effect are particularly described. No requisite of an equitable mortgage is lacking. We do not find in the record any issueframed by the pleadings or raised by the proofs to which the second ground of appeal is applicable, and its discussion is therefore not necessary to the disposition of the case.

The validity of this instrument as an equitable mortgage being sustained, the next question is whether the conditions upon which the debt secured by it was made payable have been fulfilled by the grantors, and whether payment or satisfaction, in whole or in part, has been obtained in some other way. It clearly appears by the proofs that nothing was realized from the other securities mentioned in the instrument. The 19 shares of the Layton Mine Company became

worthless, and the property of the company was sold, and the stockholders lost all. The proposed agreement with John Huyler was never consummated, and the complainant received nothing from the Pellington Mine, and the lease became forfeited, and in 1888 the leases of the Brown Mine were also forfeited to Mrs. Brown, and thus all the conditions existed under which this instrument was intended to operate as a lien by way of mortgage upon the real estate described therein. The agreement made by the complainant and Breck with Vermilya, that his lease should be paramount to the mortgage of the complainant and the Breck mortgage, was only "provided and so long as the rents or royalties are paid, as provided in said lease, by said Allen G. N. Vermilya, aforesaid, and in said agreement of even date, made between said Mary Brown and Sylvanus D. Brown, her husband, said Allen G. N. Vermilya, and the undersigned [Jackson and Breck]." It was not contended or proved that these rents or royalties have been paid as stipulated in the said lease and agreement, and therefore they cannot operate as an impediment to the foreclosure of the complainant's mortgage, or affect its priority.

The third ground of appeal is that a less amount is due upon the mortgage than that found by the court. This contention is based upon an alleged misapplication of the payments made to the complainant, Jackson. There is no dispute as to the amount paid, and no claim is made that the full amount has not been credited in the schedule of account annexed to the chancellor's decree, and forming part thereof. The payments were all made to James Jackson, the complainant, in pursuance of the provisions of the agreement dated March 14, 1891, between the Browns, Vermilya, the complainant, and Breck. There were two mortgages recognized in the agreement,-one to the complainant, for $1,900; and one to the complainant, Breck, and Fisher, for $10,000,and the payments were to be applied to these until they should be paid and satisfied, but nothing whatever was said in the writing as to which should be paid first. They were all applied to the second mortgage by Jackson. Both Jackson and Breck testify that it was mutually agreed between the Browns and themselves that these rents and royalties should all be applied to the payment of the second mortgage, of $10,000. This evidence is given further weight by the fact that, while the payments were largely in excess of the amount sufficient to pay the first mortgage, yet no request or demand for its surrender and cancellation was ever made. It does not therefore appear that the application of these payments to the reduction of the second mortgage was contrary to the mutual understanding of the parties interested. But in the absence of any such agreement, there being no proof or contention that any directions were given as to how the mon

ey should be applied, the payee, Jackson, had the right to apply it to either of the two mortgages, as he might see fit. Bird v. Davis, 14 N. J. Eq. 467.

It further appears that the appellants were not ignorant of the fact that all of these payments had been applied on the second mortgage. When, on the 14th of November, 1893, the deed for part of the lands described in the complainant's mortgage was executed by Mary Brown and her husband to the appellants, a complete schedule of the amounts due upon each of the mortgages was made out; and upon it all the several payments and their application to the reduction of the second mortgage are set forth, and it forms one of the exhibits in the case. No question was made at that time about the correctness of this statement, and it corresponds in all material respects with the schedule which accompanies and forms a part of the chancellor's decree, excepting, on account of dates, the difference in the amount of accrued interest, and a mistake in stating the amount of complainant's mortgage to be $2,000 instead of $1,900, as in the decree, which inures to the benefit of the appellants.

in this deed from the Browns to the appellants, the following words appear: "Subject, nevertheless, to two several mortgages, now good and valid liens upon the abovedescribed premises; the first of said mortgages being made and executed by the parties hereto of the first part to James Jackson, to secure the payment of two thousand [$1,900] dollars and interest, dated August 14, 1882, and recorded in Passaic county clerk's office on same day, in Book S, 2, of Mortgages, page 197; and the other of said mortgages being made and executed by said parties hereto of the first part, to James Jackson and others, to secure the payment of ten thousand dollars and interest, dated March 12th, 1886, and recorded in said county clerk's office on Mar. 12th, 1886, in Book B, 3, of Mortgages, page 395; the aggregate amount of principal and interest due and unpaid on said mortgages at this date being nine thousand six hundred and eighty-three dollars and seventy-four cents, which the said parties of the second part hereby assume, and agree to pay, as recorded, together with the interest to grow due thereon, as part of the consideration hereinabove expressed, hereby binding themselves, their legal representatives and assigns, therefor." Holding the above words to mean what they clearly import would, of course, prevent the appellants from assailing the validity of the complainant's mortgage, or denying that it was at the time of the purchase a lien upon the land, the amount due thereon having been deducted from the consideration paid, and the mortgage designated in their deed as a good and valid lien upon the premises. From these disabilities the appellants endeavor to escape, by insisting that the words "as recorded," in the assumption clause of