Two suits by James Ayres against Charles E. Shepherd, executor, and others. Decrees for complainant.

I. O. Acton and J. W. Acton, for complainant. J. Ogden Burt, for defendants.

REED, V. C. A single question is presented in both of these two cases,-a question arising under the provisions of the orphans' court act (P. L. 1898, p. 738, § 65). This question is whether the suits were prematurely brought. The owner of the equity of redemption, who is the assignee of the right of the mortgagor, died December 2, 1901, testate; naming in his will Charles E. Shepherd as his executor. The complainant, who held by assignment the two mortgages, on different portions of the real estate of the deceased owner of the equity of redemption, filed these bills to foreclose his mortgages on March 21, 1899, within a period of less than six months from the death of the said owner. The defending executor has set up the provisions of the act just mentioned, and insists that he was not suable by the complainant for this cause at the time the bill was filed. This is the language of the statute: "To enable executors or administrators to examine into the condition of the estate and ascertain the amount and value thereof, and the debts to be paid out of the same, no action, either at law or in equity, except for funeral expenses, shall be brought or maintained against executors or administrators of the estate of any decedent, within six months after probate shall have been granted to such executor or executors in case of a will, or letters of administration shall have been granted to such administrator or administrators in case of intestacy, or with a will annexed, as the case may be, unless by special leave of the court wherein such action is intended to be brought." Inasmuch as the bills are purely foreclosure bills, seeking no relief against the executor as such, nor as accounting from him, the case of Trust Co. v. Vandegrift, 51 N. J. Eq. 401, 26 Atl. 985, would seem to settle the question mooted. In that case it was held that these statutory provisions do not include suits for foreclosure of a mortgage. But it is insisted that the facts in that case differ from this, in the particular that Mr. Shepherd by the will of the deceased owner was invested with certain control over the real estate, while in the decided case the representative was a mere administrator, whose duties were confined to the administration of the personal property of the intestate. Now, it does appear that in the will appointing Mr. Shepherd there are these provisions: "I order and direct that my real estate shall be sold by my executor, either at public or private sale, as he may deem best, within three years after my decease; but the farm where I now live shall not be sold in less than two years after my decease. Until the said real

estate is sold, I direct my executors to take charge of and manage the same in such way as shall seem best for my estate." It appears that the executor has taken charge of the mortgaged land under the power given him. It is perceived that the power to sell, and to take charge of the real estate until such sale, is a trust entirely disconnected from the purely executorial duties of Mr. Shepherd. Tainter v. Clark, 13 Metc. (Mass.) 220. The respective duties are as distinct as if the power was conferred upon a person other than the executor. The power of sale and to take charge of the property has nothing to do with the gathering in of the assets of the estate for the purpose of paying the debts of the testator and distributing the residue. The latter duties only belong to Mr. Shepherd qua executor. The duties under the power pertain to him as a pure trustee. Says Mr. Woerner: "The offices of an executor and of a trustee are distinct, and may be vested in different persons, and when they are vested in the same person the functions of each are nevertheless to be performed by him in the respective capacity; the probate court having jurisdiction over him in the one, and not in the other, capacity." Woerner, Adm'n, § 229; Brush v. Young, 28 N. J. Law, 237. Now, the ratio decidendi in the case of Trust Co. v. Vandegrift, supra, was this, namely: "The plain design of the act is to afford him [the executor or administrator] an opportunity to see whether the estate committed to his administration is sufficient to pay the debts of the intestate [or testate] in full, or not, and, if it is not, that he may institute such proceedings as shall secure an equal distribution of the estate among his creditors, and prevent one or more of them from acquiring by suit a preference over the others. Hence it seems plain that the suit against the administrator, which is not designed to charge or attach the estate committed to his administration, and in which no judgment can be pronounced or decree made which will attack such estate, is within neither the reason nor the policy of the statute." Now, as already observed, the power of the executor in this case over the real estate was not given for the purposes of an ordinary administration. The executor has undoubtedly the power to sell the real estate in case of insolvency, by force of the statute, just as the administrator had in the case cited. But as in that case the existence of the power did not make the exemption applicable, so it does not in this case. The representative was a party in that case, as in this, but, as he did not represent any person interested in the real estate in that case, so the executor does not represent any interest qua executor in this. His interest in the real estate is solely that of a trustee. So I am of the opinion that the statute is inapplicable to this suit. This result seems to be in accord with the general rule with respect to statutes limiting the time in which

1. In an action before a circuit justice without a jury to recover the amount due on a check, on defense that the check was a gift inter vivos, the questions as to the existence of the necessary elements of such gift and the mental capacity of the alleged donor, being disputed questions of fact, were to be determined by the justice as if submitted to a jury.

2. On trial before a circuit justice without a jury, findings on disputed questions of fact, sustainable by evidence, will not be interfered with on rule to show cause.

Action by Benjamin A. Vail, administrator, against James E. Goodman and another. Trial before a circuit justice, and findings for defendants. On plaintiff's rule to show

GARRETSON, J. The cause was tried at the Union circuit before Mr. Justice Van Syckel, without a jury, and he found for the defendants. The suit was brought to recover the amount due upon a check for $3,000, payable to the order of Emma W. Boylan in her lifetime, and by her indorsed and delivered to James E. Goodman, one of the partners sued, and by him deposited to the credit of the defendants. The defense is that the check was a gift inter vivos. The justice found in the evidence all the elements necessary to constitute a valid gift inter vivos. He also found that the donor comprehended what she was doing, and that she was of sufficient mental capacity to make such a gift. These being disputed questions of fact, to be determined by the justice as if they were being submitted to a jury, and the evidence being conflicting and the conclusions of the justice sustainable by the evidence, this court, upon this rule, will not interfere with these findings.

The rule to show cause will be discharged.

PETERS et al. v. CAPE MAY & N. J. COAST S. S. CO.

(Court of Chancery of New Jersey. Nov. 7, 1902.)

EXECUTION-LIEN.

1. Where certain property was bought and charged to an individual, and received by him, and no part of it became incorporated in a pier of an insolvent company, and no title ever passed to the company, it was subject to the lien of an execution on a judgment against the purchaser.

Petition by William H. Kreider, a judg ment creditor of Lemuel E. Miller, to have certain lumber in the hands of the receiver of the Cape May & New Jersey Coast Steamship Company, appointed in an action by William C. Peters and others against said company, declared to be subject to the lien of petitioner's judgment. Petition granted.

Henry F. Stockwell, for petitioner. Saml W. Belden, for receiver.

STATE COURTS JURISDICTION — ACTION AGAINST TRUSTEE IN BANKRUPTCY.

1. The state courts have jurisdiction in an action of replevin brought against a trustee in bankruptcy under the act of congress, who claims that the goods in controversy belonged to the bankrupt.

(Syllabus by the Court.)

Certiorari to Camden district court.

Action by Matilda H. Cooke against Philip S. Scovel, trustee in bankruptcy of George L. Cooke. Judgment for plaintiff, and defendant brings certiorari. Affirmed.

Argued June term, 1902, before HENDRICKSON, PITNEY, and DIXON, JJ.

Howard Carrow, for plaintiff. F. Morse Archer, for defendant.

DIXON, J. In the district court of Camden the plaintiff brought an action of replevin against the defendant, describing him as "trustee in bankruptcy for Geo. L. Cooke, bankrupt." At the trial the question was raised by the court whether it had jurisdiction, the defendant being an officer of the United States court, having charge of the goods; and the defendant's counsel said he understood the court had jurisdiction, and made no objection to the trial; whereupon the trial proceeded, and judgment was rendered for the plaintiff. The defendant now seeks

COLLINS, J. The judgment brought up was one entered in the circuit court of Atlantic county upon the verdict of a jury rendered in a trial had before Allen B. Endicott, judge of the court of common pleas of that county, holding the circuit court. At the time of the allowance of the writ the question of the constitutionality of the statute permitting in certain cases the holding of a circuit court by the judge of the common pleas was still unsettled, and doubtless the ground of allowance was that, if such statute should be held unconstitutional, any judgment resting on it would be altogether a nullity, and therefore within the reach of the prerogative writ of this court, notwithstanding the direction of the constitution (article 6, § 5, par. 3) that review of final judgments in the circuit court shall be by writ of error. The question having been settled in favor of the validity of the statute in the case of Commonwealth Roofing Co. v. Palmer Leather Co., 52 Atl. 389, decided in our court of last resort, it logically follows that the writ now before us has no legal support. It is argued that the record returned does not show the existence of the conditions authorizing the holding of the court as it was held, but the alleged defect concerns mere matter of procedure, as to which the record, if defective, is subject to amendment. should, moreover, be borne in mind that the order under which the common pleas judge holds the circuit court is a general one, and not one made in a particular cause. P. L. 1900, p. 357, §§ 37, 38. As it is possible that the judgment recovered was regular, we are of opinion that it can be subjected to review in no other way than by writ of error.

It

The writ of certiorari will be dismissed. but without costs.

WALLACE v. HENDEE. (Supreme Court of New Jersey. Nov. 10, 1902.)

APPEAL-RECORD.

1. The record not showing the receipt of verbal evidence to contradict the recital in a receipt that money was received in payment, it cannot be held that such evidence was erroneously received, though it was found that the receipt did not express the true object of the payment, and judgment was given accordingly.

Certiorari to court of common pleas, Cumberland county.

Action by Edward R. Wallace against William C. Hendee. Judgment for plaintiff. Defendant brings certiorari. Affirmed.

Argued June term, 1902, before DIXON and PITNEY, JJ.

John G. Mitchell, for plaintiff. Louis H. Miller, for defendant.

PITNEY, J. This writ of certiorari brings up a judgment of the court of common pleas rendered on appeal from the court for the trial of small causes. In both courts the

plaintiff had judgment. The essential facts, as certified to us by the court of common pleas, are as follows: The defendant, being sheriff of Cumberland county, had in his hands a writ of fieri facias against one Aaron Seitzick, under which he proposed to levy upon the contents of a certain store, the property of one Harris Seitzick, who was then absent from the state. Incidentally, the sheriff proposed to close the store and stop the business thereof. Aaron Seitzick, the defendant in execution, was the agent of Harris Seitzick, and in that capacity applied to the plaintiff for assistance. The plaintiff asked the defendant to delay closing the store and actually levying upon the goods therein contained until the return of the owner, so that a levy might then be made, and a trial and determination had of the title to the property; the plaintiff proposing that he would indemnify the sheriff against loss by depositing with him the amount due upon the execution, which was the sum of $153.31. The defendant accepted this sum, and gave a receipt to the plaintiff, setting forth that he had received the money in payment of the execution. The receipt also contained the words, "Paid under protest." The court of common pleas found as a fact that this receipt did not express the true object of the payment, or the true agreement under which the payment was made: that it was in fact a deposit by the plaintiff to indemnify the defendant against any loss that might accrue to him by reason of the delay in making a levy upon, and actual seizure of, the goods claimed to belong to Harris Seitzick, and his failure to close the store; and that the money was not paid in satisfaction of the execution. The court further found that the defendant received the money upon the express agreement that, upon the return of Harris Seitzick from New York, the defendant would make an actual levy upon the goods under the execution, and thereby enable Harris Seitzick to try the right and title to the property. The defendant returned the execution as satisfied, and paid the said sum of money to the attorney of the plaintiff in execution; first taking a bond of indemnity from the plaintiff in execution. Upon the return of Harris Seitzick, he requested the defendant to levy upon the property and take it into his possession, so that there might be a trial of title. This request the defendant refused, and he likewise refused to return the money.

The case has been argued in this court on the theory that the court of common pleas erroneously accepted oral testimony to vary or contradict the supposed contract contained in the receipt; referring to so much of the receipt as specified that the money was "in payment of execution," etc. But it does not appear from the record that any ver bal evidence was received for this purpose. Therefore the question of the admissibility of such evidence is not raised. The other

This judgment will be affirmed, with costs.

MCKENNA v. STATE (MURPHY, Prosecutor).

(Supreme Court of New Jersey. Nov. 10, 1902.)

JUSTICE OF THE PEACE-JURISDICTION-AB

SENCE-TRANSCRIPT.

1. Where a justice of the peace is absent on the day to which a cause has been regularly adjourned, and thereby fails to make a further adjournment, he loses jurisdiction. This is not cured by an entry in the docket explaining his absence, and adding that both parties assented, between each other, for a hearing on a future day named. The same result follows where an adjournment is made for more than 30 days without an affidavit and without consent.

2. The transcript of the justice is not evidence of anything that transpires out of court, or not in the regular progress of a cause. (Syllabus by the Court.)

Certiorari to justice's court, Monmouth county.

Certiorari by the state, on the prosecution of William P. Murphy against Thomas P. McKenna, to review the judgment of a justice. Judgment set aside.

Argued June term, 1902, before DIXON, PITNEY, and HENDRICKSON, JJ.

Thomas P. Fay, for prosecutor, Thomas P. McKenna, in pro. per.

HENDRICKSON, J. This proceeding is brought to set aside a judgment in a justice's court of Monmouth county obtained in the absence of the defendant. The ground is that pending the cause the court had lost jurisdiction by irregular adjournments before the trial, and that the proceedings and judgment were coram non judice. The transcript shows that the return day was May 16, 1901, aud that, after various adjournments and delays, the judgment was entered on October 19, 1901. Without reciting in detail from the record the occurrences at each of said adjournments, the following record appears under the date of July 2, 1901: "The court unavoidably absent, and both parties assented with each other for a hearing on July 9, 1901, same time and place." It nowhere appears that defendant appeared on July 9th or afterwards before the justice, although a number of adjournments are recorded as at request of plaintiff, or to suit the convenience of the justice. There is an entry on October 8th as follows: "At request of plaintiff, adjourned the above case to October 19th at 10 o'clock a. m., and so notified defendant in

1. See Justices of the Peace, vol. 31, Cent. Dig. $191.

what the parties may have assented to with each other when out of court. These docket entries are limited to certain objects named in the statute, and to such proceedings as are had before the justice touching the suit. 2 Gen. St. 1888, par. 119. No sort of adjournment of the cause appearing by the docket as having occurred on July 2d, nor that this ir regularity was afterwards cured by defendant's appearance pursuant to notice or otherwise waived, it follows that the justice had no jurisdiction of the cause when he gave judgment. This conclusion is amply sustained in the following cases: Woodworth v. Woolverton, 24 N. J. Law, 419; Taylor v. Doremus, 16 N. J. Law, 473; Allen v. Board, 46 N. J. Law, 99; Parker v. Safe Deposit Co., 63 N. J. Law, 505, 44 Atl. 199. Also see State v. Fleming (decided Nov. term, 1902) 53 Atl. 225.

Another irregularity is shown, which must produce a like result. The justice adjourned the cause beyond 30 days without affidavit, and, so far as appears, without consent of the defendant. The result of this, also, would be a loss of jurisdiction. Taylor v. Doremus, supra; Savage v. Collins, 6 Atl. 502, 20 Vroom, 167.

The judgment below must be set aside, with costs.

SUPPORT OF BASTARD-AGREEMENT OF

FATHER-CONSIDERATION.

1. The withdrawal by the mother of a bastard child of the claim for support to the overseer of the poor is a sufficient consideration for an agreement between the mother and the putative father, by which the father agrees to pay to the mother a certain sum per week for the support and maintenance of the child, and a gross sum for physician's and nurse's bills during the period of confinement.

(Syllabus by the Court.)

Action by Laura E. Beach against Philip G. Voegtlen. Demurrer to declaration overruled.

Argued June term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and GARRETSON, JJ.

Willard W. Cutler, for plaintiff. Henry J. Melosh, for defendant.

GARRETSON, J. The action was brought to recover money due upon an agreement under seal made by the defendant and the plaintiff, whereby the defendant, the putative father of the bastard child of the plaintiff, in consideration of the withdrawal by the mother of the demand upon the poor master for the support of the child, agrees to pay the plaintiff a certain sum for the support and maintenance of the child, and the sum of $135 for expense incurred by the mother for physician's and nurse's bills dur