Their assent to it is to be inferred only from their conduct in acting under it, and in drawing such an inference all their acts ought to be considered. All the circumstances were relevant to show to what extent and upon what conditions they must be inferred to have yielded their assent. It is not for the respondents, who chose to refuse their assent, to complain if the actual parties to the merger agreement chose to modify the terms upon which the depositing bondholders might exchange their bonds. In this view, the correspondence between the trust company and the Princeton Lighting Company was admissible to show the terms upon which the bonds were actually deposited. We do not however find it necessary to rely upon that correspondence, since we reach the same result by a consideration of the language of the mortgages and the merger agreement only.

Where a contract is to be inferred from the conduct of the parties, the question is obviously one of intention. Upon this point the cases cited in the instructive brief of the respondent and other cases are at one. Mowry v. Farmers' Loan & Trust Co., 76 Fed. 38, 43, 22 C. C. A. 52; New York Security & Trust Co. v. Louisville, etc., R. R. Co. (C. C.) | 102 Fed. 382; Barry v. M., K. & T. Railway Co. (C. C.) 34 Fed. 829, 833; Ames v. Railway Co., 2 Woods (U. S.) 207, Fed. Cas. No. 329; Fidelity Co. v. Shenandoah Valley R. R. Co., 86 Va. 1, 9 S. E. 759, 19 Am. St. Rep. 858; Ketchum v. Duncan, 96 U. S. 659, 24 L. Ed. 868; Union Trust Co. v. Illinois Mid. Ry. Co., 117 U. S. 434, 6 Sup. Ct. 809, 29 L. Ed. 963.

The merger agreement provides that the new bonds are to be used for the purpose of redeeming bond for bond as they are presented an issue of $50,000. The transaction is to be an entire transaction, and it is the whole issue of $50,000 that is to be redeemed, not some fraction of that issue. The words "bond for bond as they are presented" are intended only to authorize the trust company to acquire these bonds one at a time if necessary, but the redemption is not complete until the whole issue is redeemed. Until that time, the contract remains executory. This construction is borne out by the subsequent provision that the "last-mentioned bonds" (words which can only refer to the issue of $50,000) are to be delivered up to the trustee (evidently the Burlington Trust Company, since the North American Trust Company was to make the delivery) and canceled. The use of the word "canceled," in connection with the delivery to the Burlington Company and to characterize a subsequent act, is a plain intimation that prior to that delivery there was no cancellation. The propriety of having the bonds canceled by the Burlington Company, the mortgagee, which would be called on to discharge the mortgage, is manifest. To remove all doubt, the agreement proceeds "so that they [still evidently meaning the issue of $50,000] shall be no longer a lien upon the property" of the Hopewell Company. The

provision that this issue of bonds should no longer be a lien was incapable of performance until the whole issue had been exchanged.

This result is sustained by an examination of the Princeton mortgage. By that mortgage $70,000 of the new bonds are to be delivered from time to time as required to take up and replace (not to "pay" or "satisfy") $50,000 of the Hopewell bonds and certain bonds of the other constituent companies. There is no language here which would authorize the trustee to take up and replace anything less than the whole $50,000. Until the whole were secured, the bonds which the North American Company had redeemed bond for bond as presented under the merger agreement were held, in escrow as it were, to await the consummation of the entire and indivisible contract.

If we felt any doubt as to the correctness of our conclusion based upon the language of the merger agreement and the Princeton mortgage, that doubt would vanish upon an examination of the Hopewell mortgage. The provisions of that mortgage as to the redemption of the bonds secured thereby are referred to in the Princeton mortgage. Among them is a clause providing for the case where less than the whole issue is redeemed. That clause requires that the bonds to be paid shall be determined by chance. There was in this case no determination by chance, no doubt because the parties concerned did not regard the transaction as the equivalent of payment.

Upon general considerations of equity, we should reach the same result. Three views suggest themselves to us as possible: (1) the deposited bonds may be held for the benefit of all the new Princeton bondholders pending the exchange of the whole issue; (2) they may be held as collateral security to the new bonds taken in exchange and for the benefit of the depositing bondholders only; or (3) they may be treated as satisfied for the benefit of those who have refused their assent to the scheme. The last seems to us inequitable, for the reason that it allows nonassenting bondholders to profit by a transaction which they have in effect opposed. All that they are equitably entitled to is such a proportion of the mortgage security as their bonds bear to the whole issue. Barry v. M., K. & T. Railway Co. (C. C.) 34 Fed. 829. This allows them all they would have but for the merger agreement. and merely denies them an increased security due to the efforts of others. Equity does not allow them to gather the fruit after others have shaken the tree. While it may fairly be argued as some of the cases suggest that the depositing bondholders by the exchange of bonds evince an intention to give up the lien of their old bonds, it by no means follows that they intend to give up that lien for the benefit of those who refuse to co-operate with them. It is far more reasonable to assume that, if they give it up at all, it is for the benefit of all the new bondholders, who, in return, allow them to share in the

security of the new bonds. In the present case, none of the parties to the merger agreement-the trust company, the Princeton Lighting Company, which by virtue of the merger stands in the shoes of the Hopewell Company also, the Princeton bondholders or the depositing Hopewell bondholders-assert that the $38,500 bonds were satisfied. The trust company by retaining the bonds uncanceled and not surrendering them to the Burlington Company evinced its intent to preserve their lien, and the only persons having a right to determine that question-parties to the merger or Princeton bondholders-raise no objection. If it were necessary to hold that the contract was varied, they had the right to vary it.

A somewhat similar case is Steven v. MidHants Railway, L. R. 8 Ch. 1064, 42 L. J. Ch. 694.

Whether the deposited bonds are held for the benefit of the depositors alone or for the benefit of all the Princeton bondholders we are not now in a position to determine. The former holders of the $38,500 of Hopewell bonds are not parties, nor do we know what bondholders are represented by the individual complainants. Until the proper parties are brought in, the ultimate disposition of the fund to be realized out of the mortgaged premises cannot be decided. The decree must be reversed, and the record remitted to the Court of Chancery in order that a decree may there be entered for the amount due on the whole $50,000 of bonds. It should direct that the proceeds of the foreclosure sale be brought into that court to abide its further order.

The appellants are entitled to costs in this court.

LEVY v. BLACKMORE. (Court of Chancery of New Jersey. Aug. 30, 1907.)

LANDLORD AND TENANT-FORFEITURE OF LEASE WAIVER-ACCEPTANCE OF RENT.

A landlord by accepting rent after having knowledge of all the facts waives any forfeiture arising therefrom.

[Ed. Note. For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 345.]

Suit by Julius Levy against James E. Blackmore. Decree for complainant. Edward Schoen, for complainant. T. Howell, for defendant.

David

HOWELL, V. C. On October 23, 1906, Blackmore, the defendant, made a written lease to Levy, the complainant, for certain rooms situated on the third floor of a building not described in the lease itself, but which appears by the pleadings to be No. 60 Academy street, in the city of Newark, for one year from November 1, 1906, with the privilege of another year's extension, and upon other terms set out in the writing, most of which are not important to the con

troversy. The lease contains this covenant: "And the said party of the second part do hereby promise and agree that I will not relet or underlet the whole or any part of said premises, nor assign this lease, nor use or permit any part thereof to be used for any other purpose than enameling and painting jewelry without the written consent of the party of the first part, his heirs, assigns, agents or attorneys under the penalty of forfeiture and damages." The complainant entered the premises under the lease about November, 1906, and is now in possession, and is using them, as he claims, as a workshop for "enameling and painting jewelry." The defendant claims that he is now and always has been engaged in something more than that; that he is, in addition, polishing and gilding jewelry, and for that purpose he uses machines which make a noise, vibrate the building, and annoy the other tenants. The complainant installed in the demised premises such machinery and trade fixtures as he had used in his former place of business on Market street. This included a baking oven and some polishing or lapping or matting machines which were operated by a dynamo. These machines were set upon work benches, the dynamo on the floor, and they were run some portion of nearly every day, from half an hour to three hours. The baking oven was constructed so as to be heated by gas, and to accomplish this the tenant was obliged to install a gas pipe. This was done by conducting the pipe up the elevator shaft, a location which seems to have been directed by the landlord himself; at least, it is so stated, and is not denied by him. The landlord appears to have complained of the noise made by the operation of the tenant's machinery soon after the tenant had moved in, but he took no steps to obviate the difficulty until a few days before the bill was filed, when he disconnected the gas pipe which furnished the gas used to heat the oven, the operation of which appears to be quite noiseless, and so brought the tenant's business to a "standstill" for 12 days, as one of the witnesses said. There was no interference with the lines which carried the electric current into the premises to communicate the power to the machines which seem to have created all the noise and vibration complained of. The bill seeks to restrain the landlord from further destroying the tenant's property in the premises, from interfering with or in any wise obstructing the means whereby he acquires power for the operation of the machinery necessary in the conduct of his business, and from interfering with or obstructing the tenant in reinstalling or repairing the means by which he obtains power, and from in any wise obstructing the tenant in the peaceable, quiet, and beneficial enjoyment of the premises. The landlord answers, justifying his course of action by claiming that the tenant was using the premises for a purpose different

from that covenanted for; that, instead of confining his operations to enameling and painting jewelry, he was engaged in plating and polishing jewelry, which is a different business; and that this part of the work that was done on the machines created the disturbance. He also files a cross-bill, in which he alleges that the tenant's installation of machinery and the gas pipe in the elevator shaft is a violation of the covenant in question, and that the lease is thereby wholly broken, and he prays that it may be set aside and for nothing holden.

At the time the lease was made, the tenant was occupying premises on Market street. His son had begun the business, and on his death the father took it up and carried it on. He is now 80 years of age, and, being a somewhat recent emigrant to this country, he speaks and understands the English language quite imperfectly. Before the lease was made, he called to see the landlord, whom he invited to visit the Market street shop to see his plant, and to learn the kind of business he was carrying on. The landlord went in person to this place, and was there met by a woman in charge, who showed him the whole plant and machinery, all of which, and no more, was removed to and installed in the Academy street rooms. This the landlord practically admits. The landlord then himself prepared the lease in question, and presented it to the tenant for signature. The tenant within the next six weeks moved into the premises, and installed his machinery and gas pipe, all at an expense of about $200, and all with the knowledge, approbation, and direction of the landlord. The landlord claims that he had a right to interfere with the tenant's fixtures because the tenant was violating the covenant.

Considerable testimony was taken to show what the business was which was included in the words "enameling and painting jewelry." It was contended, on behalf of the landlord, that enameling and painting jewelry were operations that were conducted wholly by hand, without the use of any machinery what ever, except a baking oven, which made no noise and no vibration. It was quite as strongly stated by witnesses for the tenant that the business included such gilding and polishing as was required to finish up the work after the painting and enameling had been accomplished, and I am inclined to take the view of the tenant as to that part of the case. The circumstances under which the lease was drawn and executed throw light on the question. The landlord inspected the tenant's plant in Market street, and he had an opportunity to ascertain just exactly what the business was and how it was to be carried on, and, indeed, as I understand the testimony, saw all the machinery installed there which was afterwards installed in his own building. This he does not specifically deny. Having

seen this, he drew the lease and obtained its execution by a very aged man who seems to have understood the English language but little, and who undoubtedly understood that he was to be permitted to carry on the same business that he had carried on in Market street. But, even conceding the position of the landlord, and conceding that the tenant did violate the covenant, and conceding, still further, that the violation operated as a forfeiture, and that due notice was given thereof and everything done by the landlord to conserve what he thought were his rights, it still appears that the landlord has accepted the rent from the beginning of the lease down to the present time. This operates as a waiver of any forfeiture which may have been incurred during that period because it sufficiently appears that the rent was accepted after the landlord had knowledge of the facts which he now claims operates as a forfeiture. Conger v. Duryee, 90 N. Y. 594; Taylor on L. & T. § 497; Thropp v. Field, 26 N. J. Eq. 82.

I conclude, therefore, that the tenant is entitled to be protected in the quiet enjoyment of the premises leased by him, and that an injunction should go to prevent interference by the landlord with the tenant's rights.

This view of the case makes it necessary to dismiss the cross-bill. I will advise a decree in accordance with these views.

(75 N. J. L. 438)

CLINTON H. SMITH CO. v. OATHOUT. (Supreme Court of New Jersey. Nov. 11, 1907.) COURTS-DISTRICT COURTS-APPEAL-STATE OF CASE.

Under the act providing for appeals from city district courts to the Supreme Court (P. L. 1902, p. 565), the appellant must bring up, with the state of the case, a certified transcript of the judgment record in the court below. (Syllabus by the Court.)

Appeal from District Court of Newark.

Action by the Clinton H. Smith Company against Charles W. Oathout. Judgment for plaintiff, and defendant appeals. Dismissed.

Argued June term, 1907, before HENDRICKSON, PITNEY, and TRENCHARD,

JJ.

Casimiro Scoppetone, for appellant. Jacob L. Newman, for appellee.

TRENCHARD, J. This is an appeal from the Second district court of the city of Newark. The briefs deal with the case as if it were taken pursuant to P. L. 1902, p. 565. Under that act the appellant must bring up, with the state of the case, a certified transcript of the judgment record in the court below. Katzin v. Jenny (N. J. Sup.) 65 Atl. 192.

In the present case there is no such transcript of the judgment record, and therefore the appeal must be dismissed, with costs.

But

There is evidence that no resolution of this character has been passed by the common council, and that numerous saloons, so licensed in said city, do not remove their screens on Sundays; some of these places, at least, being other than such inns, taverns, hotels, and other places as are exempted from this requirement by said act. The duty thus pointed out by the statute to licensing bodies is a ministerial one, clearly mandatory. And mandamus is the proper remedy to enforce performance by public boards of purely ministerial duties. Jones Co. v. Guttenberg, 66 N. J. Law, 659, 51 Atl. 274. It would therefore seem that, upon lawful application, the remedy here sought might be properly invoked. The respondents, however, resist this application, first, on the ground that the relator is a private individual, and must first show some special right or interest in the subject-matter of the wrong complained of as apart from the general public before he can invoke this remedy. this is a matter of public right, and involves the performance of a duty which affects the public generally, and, while there is a conflict of authority on the subject in the different jurisdictions, it is quite well settled in this state that in such a case the application may be made by any person who is a citizen, resident, or taxpayer. 13 Enc. Pl. & Prac. 632, note 1; State v. Holliday, 8 N. J. Law, 205; State v. Rahway, 33 N. J. Law, 111; Hugg v. Camden, 39 N. J. Law, 620; Ferry v. Williams, 41 N. J. Law, 332, 32 Am. Rep. 219. In the case last named, Mr. Justice Dixon, speaking for this court, held that the court may, in its discretion, at the instance of private persons, act by mandamus, certiorari, or quo warranto for the redress or prevention of public wrongs by publie bodies and officers, whose official sphere is confined to some political division of the state, whenever the applicant is one of a class of persons to be most directly affected in their enjoyment of public rights, and the public convenience will be subserved by the remedy desired.

It is urged that this court made a departure from this doctrine in Bamford v. Hollinshead, 47 N. J. Law, 439, 2 Atl. 244, but we think not in view of the circumstances in that case which distinguish it. It is true that the court refused to issue a mandamus to compel the county clerk to pay over the fees of the office to the county collector on the application of a taxpayer, but in that case the law made it the duty of the county collector to collect the sum due the county, and this was the real ground of the court's refusal to act on the application of a private relator. This decision seems to be within a recognized exception to the general rule, which is that, when it is the special duty of a public officer to enforce performance of a duty by another officer, a private person cannot obtain a mandamus for that purpose. 13 Enc. Pl. & Pr. 631. The relator is a cit67 A.-65

izen and resident of Hoboken and the owner of taxable real estate therein. He is therefore interested in the peace and good order of the town, so that upon the principles here stated he may rightfully bring these proceedings.

The next contention is that the writ should be denied because there is another remedy, to wit, a remedy by indictment; but the answer is that indictment would not furnish a complete remedy, for, while it might be the means of punishing the delinquent members, it would leave the public duty still unperformed. To justify refusal of the writ on this ground the other remedy must be specific and adequate. Jones Co. v. Guttenberg, supra; State v. Holliday, supra; 3 Enc. Pl. & Pr. 498.

The application is for a peremptory or alternative writ. Our conclusion is that an alternative writ of mandamus may issue.

(75 N. J. L. 340)

ALBANESIUS et al. v. PEERLESS RUBBER MFG. CO.

(Supreme Court of New Jersey. Nov. 11, 1907.) 1. BOUNDARIES-LOCATION BY CONSENT-AC

QUIESCENCE.

Where the true location of premises is doubtful, a practical location by consent of the parties will aid in the construction of the deed, and in some instances be conclusive as to the boundaries thus fixed, although the acquiescence be for a period less than 20 years.

[Ed. Note. For cases in point, see Cent. Dig. vol. 8, Boundaries, §§ 243-248.] 2. SAME EVIDENCE.

The evidence of practical location in this case between the parties, or their predecessors in title, was such that, taken in connection with the other evidence, it was held that the verdict for the plaintiffs must be set aside as being contrary to the clear weight of the evidence, and a new trial granted.

(Syllabus by the Court.)

Action by Paul R. Albanesius and others against the Peerless Rubber Manufacturing Company. Verdict for plaintiff. Rule to show cause. Verdict set aside.

Argued June term, 1907, before HENDRICKSON, PITNEY, and TRENCHARD, JJ. John Griffin, for the rule. Randolph Perkins, opposed.

HENDRICKSON, J. This was an action of ejectment brought by plaintiffs to recover of defendant, an adjoining owner, the possession of a gore of land, triangular in shape, having a width of 1 foot and 2 inches at the base, the side lines forming an angle 54 feet from the base, over which, as plaintiffs contend, the defendant's brick factory building projects on its easterly side. The defendant denies the alleged trespass. The case was tried at the Hudson circuit and resulted in a verdict for the plaintiffs. The trial judge, to whom the case had been referred upon the application of the defendant, allowed a rule to show cause to be entered