because of the fact that on March 1, 1907, jury made by a defendant in a proceeding in a After the denial of a timely demand for a the city "purchased and took over the proper-justice's court under sections 26, 27, and 28 of ty of such volunteer fire department." We think there is no merit in the contention. All that the act requires is that the prosecutor shall be an exempt fireman of any volunteer fire department, holding an exemption certificate issued to him as such exempt member. Hence he is entitled to the benefit of the act.

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(Court of Chancery of New Jersey. Feb. 1913.) is that where the sale is made for a fair 1. MORTGAGES (§ 529*)

set aside for inadequacy of price unless the inadequacy is so gross as to justify an inference of fraud." Del., Lack. & West. R. R. Co. v. Scranton, 34 N. J. Eq. 429, and Bethlehem Iron Co. v. P. & S. S. R. R. Co., 49 N. J. Eq. 356, 23 Atl. 1077, were cases of objection to confirmation, and in both the sale was confirmed over the objections.

[3] As to the rumor, very vague in itself, neither the persons who conducted the sale nor the purchaser are shown to have had anything to do with it. As neither fraud, irregularity, accident, or mistake are shown, the sale must be confirmed.

In the cases cited by counsel in support of his application (Rowan v. Congdon, 53 N. J. Eq. 385, 33 Atl. 404; Strong v. Smith, 68 N. J. Eq. 650, 58 Atl. 301, 64 Atl. 1135) there was, in addition to an inadequate price, another element of inequity strong enough under the rule quoted to have induced the court to grant the relief asked for. In this case there is no such element.

SEIBERT v. SEIBERT.

(Court of Errors and Appeals of New Jersey.

November Term, 1912.)

DIVORCE (§ 197*)-ALLOWANCE FOR COUNSEL FEES-EFFECT OF ABATEMENT BY DEATH. Where, pending an appeal by a wife from a decree of divorce in favor of the husband, the wife died, the suit thereupon abated and the court could not subsequently grant an allowance of counsel fees to the wife's counsel, although the right to apply for such allowance had been expressly reserved at the time of a prior application to require the husband to furnish the necessary printing and relieve the wife of making a deposit for costs.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 582, 583; Dec. Dig. § 197.*]

Appeal from Court of Chancery. Suit for divorce by Henry F. Seibert against Catherine L. Seibert. From the decree, defendant appeals. On motion by defendant's counsel for an allowance of counsel fees. Denied.

fore the hearing came on, and in July, 1912, the appellant died.

R. E. Lum, of Newark, for the appellant, moved for an order that the respondent pay to the solicitors of the appellant a reasonable counsel fee for the above-mentioned services. He admitted the force of the ordinary rule, but urged an exception in a case where the right to apply had been expressly reserved while the appeal was pending.

Conover English, of Newark, for the respondent.

After conference, WALKER, Ch., said, that the court had reached the conclusion that no order could be made; the suit having abated by the death of the wife.

CITY OF ELIZABETH v. GILCHRIST & CO.

(Court of Chancery of New Jersey. Oct. 31, 1912.)

1. NUISANCE (§ 84*)-ACTIONS-SUFFICIENCY OF EVIDENCE.

In a suit to enjoin the operation of a mill for grinding carbon and manganese from which it was claimed large quantities of black dust was permitted to escape and be carried to a public recreation pier, evidence held to show that defendant had practically succeeded in confining the dust to its own premises.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 196-199; Dec. Dig. § 84.*1 2. NUISANCE (§ 62*)-MILLS POLLUTING AT

MOSPHERE.

That small quantities of dust occasionally escaped from a mill and were carried to a public recreation pier did not justify an injunction restraining the operation of the mill where the amount of dust was kept down to the lowest possible amount, since people residing and doing business in a manufacturing community must expect some annoyance from dust, smoke, etc., and what would constitute a nuisance to a dwelling house might not be a nuisance to a manufacturing establishment or public park or playground.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. §§ 153-157; Dec. Dig. § 62.*] 3. NUISANCE (8 84*)-ACTIONS FOR INJUNC

TIONS-BURDEN OF PROOF.

nuisance, where the testimony is so balanced In a suit to enjoin the maintenance of a that the mind of the court cannot rest securely one way or the other, the injunction will be denied.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 196-199; Dec. Dig. § 84.*1 4. INJUNCTION (§ 128*) GROUNDS FOR RELIEF-IRREPARABLE DAMAGE.

The Court of Chancery made a decree nisi for divorce a vinculo at the prayer of the husband on May 1, 1912. See 83 Atl. 230. The wife appealed, and on May 24th, on application of appellant's counsel, it was ordered that the respondent furnish the necessary printing, and that appellant be relieved of making the deposit for costs, according to the usual form of such orders; and it was further ordered "that the right of counsel of said appellant is hereby expressly reserved to apply hereafter for a further order of alimony to be paid during the pendency of this appeal and until its determination, and for a reasonable sum to be paid to her counsel for prosecuting this appeal." Counsel for the appellant thereafter rendered serv-5. NUISANCE (§ 81*)-INJUNCTION-DEFENSES. ices in the preparation of the argument to be made on the hearing of the appeal. Be

In the absence of a verdict at law in favor

of the complainant, an injunction will not issue unless the right of the complainant is clear and the damage irreparable.

[Ed. Note. For other cases, see Injunction, Cent. Dig. § 278; Dec. Dig. § 128.*]

what amounts to a nuisance, disclaims the inWhere a defendant, who has been doing tention to continue it and is proceeding with

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diligence to remove and abate it, an injunction | ten days, which gave the complainant time will be denied.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. § 193; Dec. Dig. § 81.*]

Suit by the City of Elizabeth against Gilchrist & Co. On final hearing on bill, answer, replication, and proofs. Bill dismissed. James C. Connolly, of Elizabeth, for complainant. A. J. David, of Elizabeth, for defendant.

to meet the new defense. It introduced in rebuttal some testimony which tended to show that, after the installation of the dust collectors, the conditions were very little, if any, improved.

[1] It is quite clear to my mind that the weight of the evidence on this point is in favor of the defendant, whether it is weighed by the inherent cogency of the proofs or by the number of witnesses produced who tesHOWELL, V. C. The complainant, a mu- tify to the same state of facts. The defendnicipal corporation, is the owner of a recrea- ant's witnesses appeared to be men of intion pier in Elizabethport facing on Staten telligence and character; they testified uniIsland Sound, which is open to use by the formly that, since the installation of dust public during the summer season. The de- collectors, no dust in an appreciable quantity fendant, a manufacturing corporation, is has escaped from the defendant's cupolas; conducting the business of grinding carbon that from the north cupola only steam esand manganese in a building leased by it capes, and from the south cupola, which evifrom the Central Railroad Company, which dently had caused the principal trouble, only lles a short distance north of the complain- occasionally could there be seen any emisant's pier. The bill alleges that the defend- sion of dust whatever; and that this came in ant, since its mill went into operation in the puffs 10 minutes, 15 minutes, or even half early part of the present year, has permitted an hour apart, and then in such slight quanlarge quantities of black dust, which is form- tities as to be traced in the air with diffied in its grinding operations, to escape into culty. This evidence is supported to some the air and be carried from the defendant's extent by that of Louis J. Richards, health works to the complainant's pier whenever officer of the city of Elizabeth, who was at the wind is in a northerly direction, and that the premises in question on October 11th, on the result is that the people who use the which day the only thing that he saw was pier have their hands and their clothing soil- steam coming from the cupola and smoke ed by contact with the seats and railings from the main smokestack of the factory. thereon which become covered with a black He did notice a little cloud of dust over the adhesive dust. The prayer is that the de-manganese cupola, of which he says, "You fendant may be restrained from maintaining couldn't see it very much." This evidence on and operating its business on the premises the part of the defendant was met by the which it now occupies, and that it may be re-statements made by the city's wharfmaster quired by the mandatory order and injunction of this court to discontinue said business, with a prayer for further relief. The answer denies the alleged nuisance, but says that the defendant has installed various devices to collect the dust and particles arising from the manufacture and grinding of its products, and that it is now engaged in installing a further and new device, which the defendant is assured, upon competent and expert advice, will practically eliminate the escape of dust and other particles from the plant of the defendant company while it is in operation.

The evidence shows that the devices mentioned in the answer were completed in the early part of August; one of the witnesses stating that they were completed as early as August 3, 1912. When the complainant had rested, the defendant, without any supplement to the pleadings and without objection on the part of the complainant, introduced evidence tending to show that in the month of August, 1912, and long after the filing of the answer, it had installed a dust-collecting apparatus which retained all the dust that had previously passed off into the air, and that it had thus obviated the objections made in the bill. After this defense was introduced, there was a continuance of the cause for

and one of its health officers, both of whom said that the dust continued to accumulate on the pier from the defendant's works after the installation of the dust collectors, and they exhibited some cloths which they used for cleaning the seats on the pier during the present month (October, 1912), on which were large quantities of black dust.

[2] I am convinced by the evidence that the defendant has practically succeeded in confining the dust arising from its grinding operations to its own premises. It may well be that there will occasionally be found some dust flying in the atmosphere in the neighborhood of its works, but people residing and doing business in a manufacturing community must expect some annoyance from dust, smoke, noise, and vibration, and, while these items of injury must be kept down to the lowest possible amount, it must be clear that they cannot in every case be wholly eliminated. Wolcott v. Melick, 11 N. J. Eq. 204, 66 Am. Dec. 790; Ross v. Butler, 19 N. J. Eq. 294, 97 Am. Dec. 654; Cleveland v. Citizens' Gas Light Company, 20 N. J. Eq. 201; Duncan v. Hayes, 22 N. J. Eq. 25; Reilly v. Curley, 75 N. J. Eq. 57, 71 Atl. 700, 138 Am. St. Rep. 510. These cases relate mostly to nuisance to dwellings, a situation which the courts are apt to view a little more harshly

Action by Mary S. Brooks against Walter W. Brooks. Judgment for plaintiff, and defendant brings certiorari. Reversed.

than they do in a nuisance to a manufactur- Certiorari to review a judgment entered ing establishment; or, in other words, what before a Justice of Peace. would be a plain nuisance to a dwelling house might not be a nuisance to a manufacturing establishment or to a public park or to a people's playground. After all, the decision in each case must stand upon the question of nuisance or no nuisance in that particular case; it is always a fact to be established under the circumstance of each case.

[3] There is another ground upon which the judgment may proceed, and that is that the right to an injunction in the present circumstances is at least doubtful. If it could be said that there was a balancing testimony so that the mind of the court could not rest securely one way or the other, in such case the injunction could not issue.

[4] In the absence of a verdict at law in favor of the complainant, an injunction will not issue unless the right of the complainant is clear and the damage irreparable. If the damage can be measured in a legal action in a cause where it is not irreparable, equity will not take jurisdiction.

Argued June term, 1912, before SWAYZE, VOORHEES, and KALISCH, JJ.

Grey & Archer, of Camden, for prosecutor. Edward L. Katzenbach, of Trenton, for defendant.

KALISCH, J. The prosecutor in certiorari was the defendant below in a proceeding instituted by the defendant in certiorari, as complainant, before a justice of the peace, under section 2 of an act entitled "An act concerning forcible entries and detainers" (2 Comp. Stats. p. 2598), to recover the possession of a dwelling house in Sea Isle City, which was in possession of the prosecutor, the justice sitting with a jury. The jury by their verdict declared the prosecutor to be guilty of forcible entry and detainer, whereupon judgment under the statute was given This judgment is now under against him. review before us. By consent of counsel the testimony taken at the trial before the justice of the peace has been made part of the record. The prosecutor's main contention is that there was no testimony, in the case, that tended to establish that the prosecutor was either guilty of forcible entry and detainer or forcible detainer to warrant the case to be submitted to the jury, and that therefore the justice was without jurisdiction to proceed to judgment. At the close of the complainant's case, the prosecutor moved for a nonsuit upon the ground that the complainant had failed to adduce any proof that the prosecutor had obtained possession of the premises by a forcible entry, or was forcibly The result is that the bill must be dismiss- detaining the possession thereof, which was ed. No decree, however, will be advised un- denied by the justice. At the close of the til the pleadings shall have been adjusted to entire case, the prosecutor moved that a verthe proofs. I will hear counsel on the ques-dict be directed in his favor upon the same tion of costs at the time of the settlement of ground as stated in the motion for nonsuit, the decree. which was also denied.

[5] Again, "Where a defendant, who has been doing what amounts to a nuisance, disclaims the intention to continue it, and is proceeding with diligence to remove and abate it, the court will, if satisfied that the cause of complaint will be removed as speedily as practicable, refuse an injunction." This is from the syllabus to King 'v. Morris & Essex Railroad Company, 18 N. J. Eq. 397. I think that the practice there prescribed ought to be followed in this case. It is clear that the defendant has endeavored to minimize the injury, and, in my opinion, has succeeded, but at any rate it is sensible of its position and has been and is endeavoring to do what it can toward changing the conditions.

(84 N. J. L. 210)

BROOKS v. BROOKS. (Supreme Court of New Jersey. April 2, 1913.)

FORCIBLE ENTRY AND DETAINER (§ 4*) WHAT CONSTITUTES "FORCIBLE ENTRY. Under 2 Comp. St. 1910, p. 2598, § 2, defining "forcible entry" as the entry upon lands and detention thereof with force or weapons or any kind of violence, or by peaceably entering and then turning the party out of possession by force or threats, mere entry with a key into a house and refusal to surrender possession, unaccompanied by violence or threats, would not constitute a forcible entry and detainer.

[Ed. Note.-For other cases, see Forcible Entry and Detainer, Cent. Dig. §§ 5-22; Dec. Dig. § 4.*

For other definitions, see Words and Phrases, vol. 3, pp. 2873-2876; vol. 8, p. 7665.]

It is conceded that if there was any testimony, however slight, from which a jury might have been justified in finding that the prosecutor had either forcibly entered the premises or was forcibly detaining the same, such finding is not reviewable here. The prosecutor's contention is that there was no proof whatever which tended to establish that there had been a forcible entry and detainer or a forcible detainer. The real inquiry is: Do the facts presented establish either a forcible entry and detainer or a

forcible detainer? The prosecutor insists they establish neither. The defendant maintains that they tend to establish both. This requires an examination of the testimony.

The undisputed facts are as follows: Mary S. Brooks, the defendant in the certiorari proceeding, and who was the complainant in

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