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which advantage is now sought to be taken by Henry's devisees. Henry Stimis was the only person who, during that period, could have brought suit to enforce the mortgage, and thus have prevented the running of the statute. It was his status as executor which enabled him to discharge the mortgage record in 1887. It was to his own interest as mortgagor and owner of the equity of redemption to defeat the mortgage which he held as executor. He committed a breach of trust for his private profit. The defendants insist that this ruling in Blue v. Everett recognizing the special equity of the present Stimis suit was based on a mistake of fact, in that it assumes that the mortgage came into the possession of Henry Stimis, the mortgagor, as executor of the mortgagee. The reference in Blue v. Everett to this case of Stimis v. Stimis was, of course, based on the narration of facts in the chancellor's opinion overruling the demurrer. 54 N. J. Eq. 17, 33 Atl. 468. It is true the mortgage itself, after it had been inventoried by Henry as executor, came for a time into the mere custody of Henry's sister, but there is no proof that her holding of it was by virtue of any authority over it whatever. The court of appeals in Blue v. Everett, in mentioning Henry's possession of the mortgage, did not refer to the physical holding of the paper, but to his control, as executor, of the right to enforce payment of the mortgage. Those in remainder entitled to the mortgage had, because of Henry's status as executor, an equity to have this duty of the executor performed as a trust. When, therefore, those who stand in Henry's place attempt to set up the statute of limitations as conclusive, because of the presumption of satisfaction of the mortgage, it is well replied: "The delay in enforcing payment was a breach of trust duty on the part of him under whom you claim, and it does not lie with you to set up against us, to whom the duty was owing, any rights created by that breach."

Some criticism was made by defendants' counsel because of the nonproduction by the complainant of the bond which was secured to be paid by the mortgage in question. The evidence shows that Henry had joined in an inventory of both the bond and the mortgage, thereby acknowledging that they had the bond in possession. It was his duty to have cared for it. He was the only person who could sue on it after his mother's death in 1872. It was for him, and those who stand in his place, and not for those to whom he owed a duty, to account for the bond. The proof showed that it came to the hands of Henry's sister some time after the inventory was made, but without any authority in her either to hold it or to sue on it. Afterwards, in some unexplained way, it was lost. The bond was not the debt, but merely the evidence of it. The loss or nonproduction of the bond did not pay the debt. There is not a single element of proof in the whole case to show that Henry ever in any way paid it.

The nonproduction of the bond cannot defeat the complainant's right to foreclose the mortgage.

There is a suggestion in the answer that, inasmuch as Henry Stimis' account as executor of John Stimis' will is yet unsettled, the foreclosure of the mortgage should be delayed until that account has been stated and allowed. This accounting was due in 1853. Stimis v. Stimis, 54 N. J. Eq. 21, 33 Atl. 468. Henry's delay of more than 40 years to account as executor is now set up to postpone the payment of his own mortgage, one of the assets of the estate. If such a defense could at any time be entertained, his long and inexcusable delay has destroyed it. Moreover, there is nothing in the evidence which in any way indicates that the estate of John Stimis was to any extent indebted to Henry Stimis, or that the latter had, as executor, expended any of his own moneys for that estate.

The complainant's counsel concedes in his brief that he has failed to sustain his allegation that Mrs. Burling took the portion of the mortgaged lands which Henry Stimis conveyed to her after the discharge of the record, with notice that the certificate of discharge was false and fraudulent, and that no decree should be made against the Paterson & Newark Railroad Company as to the part of the mortgaged premises conveyed to that company, as it is not a party to the bill. The complainant only asks for a decree against the portion of the mortgaged premises the title to which still remains in the devisees of Henry Stimis. I will advise such a decree, and that the amount due on the mortgage is the principal sum, $500, with interest thereon from February 13, 1872, the date of the death of the life tenant, Ann Stimis.

(65 N. J. L. 95)

WYCKOFF et al. v. BODINE. (Supreme Court of New Jersey. Aug. 11, 1900.) CONVERSION-MEASURE OF DAMAGES.

B., who was the owner of a wood lot, sold to W. the timber growing thereon, under an agreement that the latter should cut and remove it within two years. W. failed to remove a certain portion of the timber within the stipulated time, whereupon B. converted it to his own use. Held, that in an action for the wrongful conversion the measure of damages was the market value of the timber, and that the fact that W.'s conduct in leaving the timber upon B.'s land after the expiration of the time limit was itself an actionable wrong afforded no ground for reducing the damages resulting from the conversion.

(Syllabus by the Court.)

Error to circuit court, Warren county.

Action by Martin Wyckoff and others against John Bodine. Judgment for defendant, and plaintiffs bring error. Reversed.

Argued February term, 1900, before DEPUE, C. J., and VAN SYCKEL and GUMMERE, JJ.

Martin Wyckoff, for plaintiffs in error. Oscar Jeffery, for defendant in error.

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GUMMERE, J. Plaintiffs purchased from the defendant the standing timber upon a certain wood lot belonging to him. At the time of the purchase it was agreed between the parties that plaintiffs should have two years within which to cut the timber and remove it from defendant's land. After the expiration of the time agreed upon, the defendant took possession of a certain portion of the timber which plaintiffs had failed to remove, and converted it to his own use. To recover damages for this tortious act this suit was brought. In his charge to the jury the trial judge instructed them as follows on the measure of damages: "The ascertainment of the market value of the timber will not settle the amount that the plaintiffs are entitled to recover, for this reason: They saw fit to leave this lumber on the land of the defendant after the two years had expired, and after the expiration of that two years they had no more right to go upon that land to remove the timber than you or I would have had. If they had done so without defendant's permission, they would have been trespassers, and so become liable to pay him damages for their wrongful act. So, gentlemen, you are confronted with this question, which you must settle: What damages have the plaintiffs suffered by the conversion by the defendant of this timber which belonged to them, but which they had no right to remove from his land without his consent? When you have ascertained that, you will be able to say what amount they are entitled to recover in this suit." To these instructions the plaintiffs excepted, and we think the exception well grounded. The leaving by the plaintiffs of this timber upon the land of the defendant after the expiration of the period provided by the contract was an actionable wrong, but it afforded no ground for denying absolutely their right to subsequently remove their property, and, if defendant had refused to permit them to do so upon demand, an action of replevin would have lain against him for the recovery of its possession. It is argued that, as the defendant was entitled to be indemnified for all loss sustained by him by having had his land illegally burdened by the plaintiffs in leaving their timber there after the expiration of the two years, the practical effect of the charge was to permit the deduction of that loss from the damages resulting from the conversion. We think the charge more injurious to plaintiffs than this argument suggests; but, even if its legal effect was as is contended, still it was objectionable. It is true that the presence of the timber upon defendant's land after the expiration of the time limit gave him a right of action against the plaintiffs for their interference with the full enjoyment of his property, but this could not properly be considered in determining the damages arising from its wrongful conversion. The issue to be tried was conversion or no conversion, and there could, necessarily, be no testimony legally in the case bearing upon the question of the loss sustained by the defendant by the wrongful incumbering of

his land, and, consequently, nothing by which the jury could determine that loss. The plaintiffs were entitled to have the market value of the property converted awarded to them. leaving the defendant to recover in an inde pendent action such loss as he had sustained by having had his lands wrongfully obstructed by it. The judgment of the circuit court must be reversed.

(63 N. J. L. 145)

STATE (BENJAMIN et al., Prosecutors) v. HILER et al. STATE (JACOBUS et al., Prosecutors) v. SAME (two cases). STATE (BRIGGS et al., Prosecutors) v. SAME. STATE (JACKSON et al., Prosecutors) v. SAME. STATE (VREELAND et al., Prosecutors) v. SAME.

(Supreme Court of New Jersey. Jan. 24, 1899.) DRAINS-REVIEW OF ASSESSMENT-CERTIORARI.

An adjudication made by a legislative commission fixing the boundaries of a taxable area under Act April 1, 1875, as supplemented by Act May 1, 1894, authorizing the ditching and draining of the Bog and Fly meadows by a corporation organized for the purpose, and appointing commissioners to lay out the boundaries of the property to be taxed, and fix the number of acres of each owner which they adjudged were benefited, cannot be reviewed by certiorari directed to the managers of the corporation who imposed the tax pursuant to such adjudication.

Certioraris by the state, on the prosecution of Thomas Benjamin and others, against Mahlon H. Hiler and others, to determine the validity of certain assessments made by defendants as managers of the Bog and Fly Meadow Company. Assessments affirmed.

Argued June term, 1898, before DEPUE, VAN SYCKEL, and GARRISON, JJ. Edward A. Quayle, for prosecutors. Joshua S. Salmon, for defendants.

GARRISON, J. The prosecutors in these certioraris dispute the validity of a certain assessment made by the defendants, as managers of the Bog and Fly Meadow Company, of the township of Pequannoc, Morris county, N. J., for money expended by them in clearing, straightening, widening, and ditching Beaver Dam brook in pursuance of the directions of the act of the legislature of New Jersey entitled "Further supplement to the act entitled 'An act to authorize the ditching and draining of the Bog and Fly meadows in Morris county,' passed February 20th, 1811," which supplement was approved April 1, 1875, and for the expenses incurred by the commissioners appointed by the act of the legislature entitled "A further supplement," etc., approved May 1, 1894, in surveying, laying out, designating, and dividing the boundaries of the property to be taxed as described in said act of 1875.

The land known as the "Bog and Fly Meadows" lies along the west and southwest portion of Pompton Plains, in the township of Pequannoc, Morris county, and embraces

many hundreds of acres. The Beaver Dam brook runs from west to east along the southerly end of the Bog and Fly meadows. There is a large scope of low meadow land called "The Ben-a-vly" lying on the south of that brook, which is also drained by it.

For the purpose of draining the Bog and Fly meadows the Bog and Fly Meadow Company was incorporated by an act of the legislature of New Jersey passed February 20, 1811. The ninth section of that act provided that the Beaver Dam brook should be cleared, straightened, and ditched "at the expense of the owners of the Bog and Fly meadows." This had been done several times at the expense of the owners of the Bog and Fly meadows prior to 1875, so that said brook, from a small stream, had grown to a water course of considerable size.

For the purpose of requiring thereafter all the owners of lands fronting on said brook or benefited by the opening, clearing out, widening, and straightening of the same to pay a just proportion of the expense of such work, the act of 1875 was passed and further supplemented in 1894 as follows:

The commissioners thus named by the legislature laid out, designated, and divided the boundaries of the property to be taxed, made a map thereof and a list of the names of the owners of land with the number of acres which, as commissioners, they adjudged were benefited. This map and the accompanying documents were handed by the commissioners to the managers of the Bog and Fly Meadow Company, and were the basis of the proportional assessment of which complaint is now made. It will be seen that the real ground of complaint is the adjudication of the commissioners; the managers, who are the defendants to these certioraris, having no hand in the determinaton as to which lands should be included in the taxable area. The commissioners are, however, not parties to this litigation, nor was any certiorari taken to test the propriety of their report, which is not drawn into controversy by this writ. Inasmuch as the managers were compelled to adopt the findings of the commissioners, there is nothing in the return upon which their action can be reversed.

The so-called "remission" of these assessments is not sustained by the facts stated in the stipulation. If anything was done by the appeal commissioners, it was either to set aside the adjudication of the legislative commission, or to repeal the legislation itself. It performed no act that was within its functions.

The assessments are affirmed, with costs.

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which the custody of another might secure for him, unless the character of the parents, or the environment to which the child would, in their charge, be subjected, is such as actually to endanger his life, health, morals, or permanent happiness.

2. The burden of the proof showing the unfitness of parents to have the custody of their children is upon those who allege it.

(Syllabus by the Court.)

Bill by John W. Giffin against David Gascoigne. Heard on bill, answer, cross bill, and proofs. Decree for complainant.

Howard Carrow and Wheaton Berault, for complainant. Robert C. Bartlett, for defendant.

GREY, V. C. (orally). This case involves the determination of the right to the custody of a boy of 14 years of age, who is now in court, and, under the circumstances ought to be disposed of while the minor child is here present. There are many facts in the case which are undisputed and not many which are disputed. It is conceded by both sides that the complainant, John W. Giffin, is the sole surviving parent of this boy, who, in September, 1899, was 14 years of age. The boy had lived with his father, in Cleveland, Ohio, up to the early part of the year 1897. His father's domestic affairs were most unhappily situated. He had difficulties with his second wife (not the mother of this boy) to an extent which made the family life extremely miserable. The testimony, as taken on the commission, is that three years ago, during the period of the second marriage, the father's conduct towards the wife was cruel and inconsiderate, and that he became at times intoxicated, and was occasionally harsh, and perhaps cruel, to the children. That testimony was given without cross-examination, and apparently ex parte, but it is corroborated to some extent by the testimony of the minor child himself, given here in court this morning. The father, in view of the unhappy circumstances of his household, seems to have desired to make some arrangement for the care of his boy at some other place than his home. A divorce suit was brought in Ohio by the wife, and final judgment was given therein, divorcing the husband and wife. For a day or two after the separation of the husband and wife, the boy Herbert stayed with his stepmother, and then was taken to the house of his aunt, Mrs. Hobart, his father's sister. This lady was then caring for her father, a very old gentleman who was ill, and because of this the boy was temporarily kept at the residence of another aunt, and was afterwards sent East to his Grandfather Gascoigne's family. This grandfather is the defendant in this suit, and now contends that the sending of the boy to his house was a finality; that it was an abandonment, and an emancipation of the boy, by which the further custody and care of him for his support and education was given to this grandfather; and that is the first

point made in assertion of the defendant's right to the final custody of this child. The weight of the testimony shows that the arrangement which was made was not one of abandonment by the father of the child; nor was it to deposit him with his grandfather for his education and maintenance until he became of age; nor was it, indeed, anything but a seeking by the father to have a temporary home for his child because of the unhappy conditions of his own family life. The proofs show neither agreement that the father surrendered the child, nor that he was in any way relieved from the obligation to maintain him. The complainant contends that the child was placed in his grandfather's family to board. While the answer denies that, I am satisfied that the denial is not in accordance with the evidence. The letter inviting the grandfather's family to take the boy asked them to take him to board. Money was paid, in part by the father, and to the amount of $175 by the aunt, Mrs. Hobart, not with regularity, nor in such sums as would fully satisfy a reasonable compensation for the boy's board, but it was paid for the maintenance of the boy in the defendant's family, and was so received. There was clearly a recognition of the continuance of the obligation on the part of the father to support the boy, and that he was at his grandfather's house, not under the latter's support and control, but still under his father. The attitude which the boy took in the family of his grandfather was that of a person who came to board, put there by one who had a right to put him there, for pay, and that the pay was in part given, and was received as payment rightfully due for a service rendered. There has been some reference to the fact that some of the pay for board is yet due, but nobody pretends for a moment that the custody of the boy could be retained by the grandfather until the board is paid. Of course, there could not be. a lien upon the child for the payment of his board. The delivery of the child would not relieve the father from the obligation to pay the board. But that in no way affects the right of the father to the custody of his child, who does not in any degree lose his right to the custody of his child because he put him out to board.

The next point made by the defense, and that is the most important one in the case, is that the grandparents, although they have received this boy, as I am bound to hold, under a contract to maintain and support him for pay, had a right, and have now at the present time a right, to retain this child in their custody against the claims of the father, because they say the father is not a fit person to have the boy in charge. There has been some misunderstanding of the law touching the choice of a minor child himself as to his custody. This has arisen because of a somewhat novel proceeding in the case of Richards v. Collins, 45 N. J. Eq.

283, 17 Atl. 831. That case involved the question of the custody of a child, and the court of appeals held that, where the child was of an age to have an opinion which might be worthy of consideration, the court would receive the expression of the wishes of the child as to the custody in which he might prefer to be placed. The court did not, however, say that the preference of the boy should be conclusive. Like other evidence, it is to be considered by the court; it is to have its proper weight in determining the question as to future custody. In this case the boy is well grown, and over 14 years old, though obviously quite immature, easily influenced, and controlled rather by the desire to continue relations presently kindly and affectionate than by a considerate judgment touching his general welfare in the future. His testimony has been admitted, and favors his retention by his grandfather. It is, in my judgment, of little significance, as the proof shows, that for months past his whole course of life has been arranged by his aunts, part of his grandfather's family, for the purpose (though they deny it) of concealing him from his father, so that he might not even see him. Such a line of conduct, vigorously pursued, makes the opinion of an undeveloped, impressionable child of little value. He has been taught to regard his father as a "bugaboo," and here expresses the impression thus imposed upon him. But little weight can be given his personal preferences, as I shall in a moment show by reference to his conduct so lately as last summer (1899), while visiting his father and his aunts in Cleveland.

The case above cited is also referred to as an authority to the effect that the court would disregard the family relation, and award the custody of the child to that one of the litigants who would and could deal with it most beneficially for its future welfare. I cannot accept that as a true statement of the judgment in Richards v. Collins. Such a view would take his child from the poor man and give it to his richer neighbor, who might offer to adopt it. It would stand as a temptation to the breaking of family ties whenever the attractiveness of a child might tempt a stranger who could secure it a higher station in life to make the struggle for its possession. In the rightful adjustment of the family relation the child should occupy that station in life into which he is born. If his father is poor, he must share his poverty. If the father is cross and ill-tempered and occasionally inebriated, these are distressful characteristics, which may make the child's life less happy; but until it is shown that they are of such force and importance as to endanger the child's welfare in that place in life into which it has pleased God to call him, their existence constitutes no reason to deprive the father of his possession of his child. The true view, and that which on the whole judgment was held in the case above cited, is that the custody of the child should remain

with his parents, irrespective of greater benefits which the custody of another might secure for him, unless the character of the parents and the environment to which the child would, in their charge, be subjected, is such as actually to endanger his life, health, morals, or permanent happiness. The father is entitled to have his child unless those who allege him to be unfit prove their allegation to be true. In the case in hand the undisputed evidence as to pecuniary capacity is that the father is worth some $15,000; that the aunt Mrs. Hobart, with whom the child, if given to the father, will have his future home, is worth $25,000; that she has no children of her own, and intends to give this boy a substantial part of her estate; that it is the father's purpose to give the boy a collegiate education, and thus fit him in the best manner to advance his future interests. The character and position of the aunt Mrs. Hobart are in no way questioned, and her entire worthiness is apparent in both her appearance and in the frankness of her testimony. It is shown, as above stated, that some three years ago, during the period of his unhappy family trouble with his second wife, the complainant was sometimes intoxicated; that he was on several occasions harsh, and perhaps cruel, to his family; that he resided for a while over a beer saloon, and on one occasion took his son into a saloon, and gave him a drink of "pops." But the testimony does not satisfy me that the inebriation was habitual, or that the father's harsh conduct was more than occasional, or that it was anything but the momentary expression of a passing feeling. The most careful examination failed to show that the drink called "pops," which the boy said his father gave him in the saloon, produced any intoxicating effect. While the father lived over the saloon, and during the unhappy period of his separation from his wife, he cared for the boy by placing him with his sisters and with the defendant. After the boy was sent to the defendant's house, the father sent him a bicycle and a piano, and in the summer of 1899 had him brought out to Cleveland for a visit of some six weeks at his aunt's, Mrs. Hobart. During this period the father and son took frequent bicycle and carriage rides together, and there seems to have been a perfect restoration of kindly and affectionate feeling between them, and no mention, on careful inquiry, of a single act of indiscretion or misconduct on the part of the father. To such an extent was this reconciliation that the boy cried when he was about to end his visit, and return to the defendant's house. The boy admitted that he cried upon leaving Cleveland, and sought to deny that it was because of regret for his coming away, but his manner on the stand and his explanations satisfied me that there was, so late as the summer of 1899, the warmest affection and confidence between the father and the son, and that his denials of regret at this parting were the results of

the influence of his present surroundings. There has been no proof that the father, since three years ago, has abandoned himself to the habits of intoxication. The sister, Mrs. Hobart, with whom he lives, testifies that but once or twice has she known him to be affected by liquor, and then only to a slight degree. On the other hand, the testimony of the defendant and of his daughter was not given with candor. There was constant hesitation to reply to questions the answers to which might be unfavorable. Both the defendant and his daughter sought to convey the impression that there has been no effort to prevent the father from seeing the son. But the proofs plainly show that most energetic steps were taken to keep the boy from the father. The boy was even taken from school, and sent to Philadelphia for several months, obviously for no other reason. The grandfather surreptitiously, without notice to the father, took out letters of guardianship upon the boy's person and estate, without the least occasion, as the boy has no estate. The defendant and his family for the past eight months have been vigorously struggling to secure for themselves the custody of this child from the father, and on the stand they seek to create a contrary impression. Their attitude is so strenuous that it leads me to believe that the boy, living for months in such an environment, reflects in his testimony unfavorable to his father, and in his expression of preference to live with the defendant, the feelings which his aunt Miss Gascoigne impressed upon him, and not his own uninfluenced choice. The evidence indicates that, however his feelings may be temporarily hurt in leaving the family of the defendant, there is no likelihood that his permanent happiness will be in any way endangered by his return to the custody of his father; nor is there, upon the whole case, a showing of any reason sufficient to justify depriving this father of the custody of his child. I will advise a decree that the boy be restored to the permanent custody of the father, in accordance with the prayer of the bill, and that the cross bill by which the defendant seeks to have the boy awarded to him be dismissed, with costs on both decrees against Mr. Gascoigne.

(65 N. J. L. 89) HOOPES v. WEST JERSEY & SEASHORE R. CO. (Supreme Court of New Jersey. Aug. 11, 1900.) RAILROADS-ACCIDENT AT CROSSING-CONTRIBUTORY NEGLIGENCE.

Plaintiff, while driving upon a public highway at night, noticed, as he drew near the crossing of defendant's railroad, a number of lights along the tracks towards the south, but did not observe that any one of them was moving. In fact, one was the headlight of an engine which was approaching the crossing, and which ran the plaintiff down as he drove upon the tracks. No other danger was present to distract the attention of the plaintiff from this engine. Held, that in the exercise of ordinary

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