the commissioners to grant the franchise of erecting in the streets poles and wires for the transmission of electricity. Nor does the enacting part of the act purport to clothe the commissioners with any such power. By the second section it is made the duty of the board to examine the manner in which wires and cables for the transmission of electricity are constructed and used in the cities of this state; and whenever, in their judgment, the public welfare will be advanced by the removal of any wires, or of the poles used for the support of electric wires, from the surface of the street, to order such poles and wires to be removed from the surface of the street, and placed under the streets; and if the owner of such poles or wires shall not, on notice, remove them within a specified time, it is made the duty of the commissioners to remove such poles or wires from the streets without delay. This section also declares it to be the duty of the commissioners, whenever they determine that the public welfare will be advanced by the removal of such poles and wires from the surface of the street, to cause such electrical conductors or wires as thereafter shall be used in such city to be placed underground whenever, in their judgment, it is practicable so to do. Other parts of the act authorize the construction of electrical subways and underground conduits, on plans to be approved by the commissioners, within which the wires or cables used for the transmission of electricity shall be placed. Nowhere in the act is there any indication of a legislative intent to confer on this board power to make a grant of a franchise which shall operate proprio vigore to legalize the erection of poles on which electrical wires shall be suspended. The functions of the board of commissioners are simply supervisory, by way of control over the exercise of franchises derived from other legislative authority to use, in the streets of a city, wires and cables for the transmission of electricity. Under our construction of the resolution under review, it does not purport to grant to the railroad company the franchise of erecting poles in the street. The fifth section of the act provides that no telegraph, telephone, electric light, or other electric wire or cable shall thereafter be constructed along, across, or above the surface of any street or avenue in any city in this state until the board shall authorize such wires to be carried along, across, or above the surface of such streets or avenues. This section is simply prohibitory. It does not purport to grant, or to empower the commissioners to grant, the franchise of erecting poles or wires above the surface of the street. It prohibits such erections without the consent of the commissioners, notwithstanding the person or corporation to whom such consent is given may have the franchise to make use of the streets for that purpose. In this sense the subject-matter

of this section is germane to the object expressed in the title of the act, and is rele vant to the purpose for which this commission was established,-the inhibition of poles and wires above the surface of the streets whenever public welfare will be advanced by placing the same underground. The claim of the railroad company which probably induced the board to pass this resolution is that the company has the franchise to propel its cars by electricity in virtue of section 11 of the charter of the Trenton Horse-Railroad Company, and, as incident thereto, has the right to erect poles and wires in the streets. However groundless this claim may be, the commissioners were not called upon to decide upon its sufficiency, and any decision the commissioners might make on that subject would not avail the company in any proceeding against it for an invasion of the rights of the public or of private individuals, arising from an unlawful use of the streets. The resolution under review was an appropriate method of expressing the consent of the board to the erection of poles and wires above ground, in conformity with the fifth section of the act, and will operate to relieve the company from the interdict contained in that section. It can have no other effect. Whether acts done by the company under color of this resolution are an invasion of public or private rights will depend upon the question whether such acts were lawful, independent of the resolution of the board, and that question is not before us. The resolution is sustained.

(52 N. J. E. 39)

MANNING v. RILEY. (Court of Chancery of New Jersey. Oct. 17, 1893.)

CREDITOR'S BILL POSTNUPTIAL SETTLEMENT PRESUMPTIONS OF FRAUD-STATUTE OF FRAUDS -CONSIDERATION.

1. As against a voluntary settlement, the law raises, in respect to existing debts, a conclusive presumption of fraud.

2. By the statute of frauds, a promise made in consideration of marriage is not binding, unless it be in writing, and signed by the party to be charged therewith.

3. A postnuptial settlement made in pursuance of an antenuptial parol promise, and followed by nothing on the part of the wife but marriage, is voluntary.

4. Marriage is not such a part performance, on the part of the wife, of an antenuptial parol contract, as will take the contract out of the statute of frauds, and make it the legal duty of the husband to make a postnuptial settlement in conformity to his antenuptial parol promise.

5. If a man make a promise to another person for the purpose of inducing that person to do an act other than to marry him, and the act is done on the faith of such promise, the promisor will be held to his word, and be compelled to do what he promised.

(Syllabus by the Court.)

Bill by Teresa V. Manning against Margaret A. Riley to set aside a marriage settle

ment. Heard on pleadings and proofs taken orally. Decree for complainant.

John O. H. Pitney, for complainant. Edward A. Day, for defendant.

VAN FLEET, V. C. The complainant is a judgment creditor of John M. Riley, and she brings this suit to procure a decree adjudging that a settlement made by her judgment debtor on his wife, the defendant in this case, is without force, as against her judgment, because it was made by way of gift, and without consideration. The defendant, on the contrary, insists that the settlement rests on a consideration sufficient to make it valid against the complainant's judgment. The facts are not in dispute. The defendant and John M. Riley intermarried on the 15th day of August, 1878. She was a widow, and he was a widower.

The defend

ant says, just prior to their marriage, Mr. Riley promised that, if she would marry him, he would give her his homestead house and lot. When required to state more in detail the circumstances under which the promise was made, she said that she did not object to marrying Mr. Riley, but she did object to going to his home to live, because some of his children and grandchildren were living with him, and that she told him so, and then proposed that after their marriage he should come to her house, and make that his home. To this, she says, he replied that he was very much attached to his garden, and did not want to leave it, and that if she would consent to marry him, and go to his house to live, all of his children, except one son and a grandchild, should leave and go elsewhere, and he would also give her his homestead house and lot for herself. This promise, though made prior to the 15th day of August, 1878, was not performed until February 14, 1888. Mr. Riley, then, through a third person, conveyed his homestead, for a nominal consideration, to the defendant. The reason her husband did not fulfill his promise earlier, the defendant says, was because she told him that a conveyance to her might create an enmity between his sons and himself, and perhaps, also, between them and her, and that his word was all she wanted. The debt on which the complainant's judgment is founded arose in January, 1883, more than five years before the settlement in controversy was made.

The above summary exhibits all the material facts of the case. No evidence in proof of the antenuptial contract on which the defense rests was produced, except that of the defendant herself; and the truth of her evidence on that point stands entirely uncorroborated. Not a single fact or circumstance was proved by the oath of any other witness, or in any other way, which goes to substantiate or confirm the truth of her evidence on that point. With the evidence in this condition, I think it may well be doubted

whether the evidence is sufficient to warrant a judicial finding that the contract alleged was in fact made; but, in order to determine the question mainly discussed by counsel on the argument, it will, for present purposes, be assumed that the contract on which the defense rests has been proved as alleged, and that the promise of the husband to make a conveyance was made to induce the defendant to consent to marry him, and not to induce her to consent to go to his house to live after their marriage.

If the settlement in question was voluntary, the complainant's right to have it set aside as fraudulent, as against her debt, is, under the established law of this state, incontestable. The rule on this subject laid down by Chancellor Kent in Reade v. Livingston, 3 Johns. Ch. 481, 500, has been for so long a period, and in so many instances, adopted by the courts of this state as the rule of judgment in such cases, that it must be considered so completely and thoroughly settled that any attempt by counsel to induce this court to change or overthrow it should be regarded rather as an exhibition of rash courage than as a display of discretion. And that rule is "that, if the party be indebted at the time of the voluntary settlement, it is presumed to be fraudulent in respect to such debts, and no circumstance will permit those debts to be affected by the settlement, or repel the legal presumption of fraud. The presumption of law, in this case, does not depend upon the amount of the debts, or the extent of the property in settlement, or the circumstances of the party. There is no such distinction set up or traced in any of the cases. The attempt would be embarrassing, if not dangerous, to the rights of creditors, and prove an inlet to fraud. The law has therefore wisely disabled the debtor from making any voluntary settlement of his estate to stand in the way of his existing debts." Out of the multitude of cases in which the courts of this state have enforced this rule, two, only, will be cited: Haston v. Castner, 31 N. J. Eq. 697, 704; Hagerman v. Buchanan, 45 N. J. Eq. 292, 296, 17 Atl. Rep. 946.

The question, then, upon which the decision of this case must turn, is, was the settlement voluntary? It is admitted that it was founded upon an antenuptial parol promise, and that it has the support of no other consideration. Prior to the enactment of the statute of frauds, such a promise was held to be a sufficient consideration to support a postnuptial settlement. The reasoning was this: The marriage having been procured by means of the promise to make a settlement, the promisor, having received the consideration for his promise, thereby became bound, according to the ordinary principles of justice, to keep his word and perform his promise. May, Fraud. Conv. 370. But this rule was abrogated by the statute of frauds. That statute, in substance, ordains

designed to prevent fraud, justice should not permit it to be used as an instrument of

ment upon which such action shall be brought shall be in writing, and signed by the party to be charged therewith. Revision, p. 445, § 5. This provision of our statute is almost a literal transcript of the original statute of Car. II. The purpose of the statute is plain. It was designed to render hasty and inconsiderate oral promises, made to induce marriage, without legal force, and thus to give protection against the consequences of rashness and folly. Lord Cranworth, in Warden v. Jones, 2 De Gex & J. 76, 82, described the object of the statute, and the duty of the courts in maintaining it, in these words: "Persons are so likely to be led into such promises inconsiderately that the law has wisely required them to be manifested by writing; and it is the duty of this court to act in conformity with the statute, and not to endeavor to escape from its generally very salutary enactments in consequence of its operating harshly in a particular case." Now, if an antenuptial parol promise to make a settlement cannot be made the foundation of an action,-and that is the express mandate of the statute,-it follows, necessarily, that such a promise imposes no legal duty on the promisor. By making it, no legal duty is imposed, or obligation incurred; and its breach, consequently, creates no legal liability. Its performance, therefore, is an act of pure grace,-the doing of a favor, and not the doing of a duty,-and so is voluntary, in the strongest sense of that term. But it has been said that, while such a promise imposes no legal duty, it creates a moral obligation, and that such an obligation should be held to be a sufficient consideration for a postnuptial settlement, and free it from the imputation of fraud, even as against creditors. The answer, however, made by Lord Northington in Spurgeon v. Collier, 1 Eden, 55, 61, and adopted by Lord Cranworth in Warden v. Jones, supra, to this argument, must, I think, be considered conclusive. Lord Northington said: "If such a parol agreement were to be allowed to give effect to the subsequent settlement, it would be the most dangerous breach of the statute, and a violent blow to credit, for any man, on the marriage of a relation, might make such promise, of which an execution never could be compelled against the promisor; and, the moment his circumstances failed, he would execute a settlement pursuant to his promise, and defraud all his creditors."

The defendant has performed her part of the antenuptial contract. She married the man who promised to make a settlement on her. There are cases where parol contracts within the statute of frauds may be taken out of its operation by part performance, and thus made enforceable in equity. The special ground upon which relief is given in this class of cases is that, the statute being

marriage, standing alone, has never been regarded as a sufficient part performance of an antenuptial parol contract to withdraw the contract from the operation of the statute. This was so decided as early as 1720 in Montacute v. Maxwell, 1 P. Wms. 618, 620. The rights of creditors were not involved in this case. The bill was filed by a wife to compel her husband to make a settlement in conformity to his antenuptial parol promise. On the hearing, the principal argument urged in behalf of the wife was that she, by marrying the defendant, had fully performed her part of the contract, and that the contract was thereby taken out of the statute, and thus became enforceable in equity. But the court held that the wife was not entitled to a decree; declaring that where there is no fraud, only relying upon the honor, word, or promise of the defendant, the statute making those promises void, equity will not interfere. The principle laid down in this case has been uniformly adhered to by the English courts. Lord Cottenham, in Lassence v. Tierney, 1 Macn. & G. 551, 571, in commenting on what he had said in Hammersley v. De Biel, reported in a note to 12 Clark & F. 61, said: "A parol contract, followed only by marriage, is not to be carried into effect, marriage being no part performance of the contract. If it were, there would be an end of the statute, which says that a contract in consideration of marriage shall not be binding, unless it be in writing; but, if marriage be part performance, every parol contract followed by marriage would be binding." And Sir John Romilly, M. R., in Warden v. Jones, 23 Beav. 487, 490, held that where a man enters into a parol contract with his intended wife, and nothing follows but the marriage, the marriage cannot be treated as part performance, and that the carrying into effect the parol contract after marriage, by a deed, amounts to no more than a voluntary settlement. The same principle has controlled the decision of other cases. Redding v. Wilkes, 3 Brown, Ch. 400; Dundas v. Dutens, 1 Ves. Jr. 196, 199; Caton v. Caton, 1 Ch. App. 137. In Story's Commentaries on Equity Jurispru dence, it is said, (volume 1, § 768:) "If there has been no fraud, and no agreement to reduce the settlement to writing, but the other party has placed reliance solely upon the honor, word, or promise of the husband, no relief will be granted, for in such a case the party chooses to rest upon the parol agreement, and must take the consequences; and the subsequent marriage is not deemed a part performance, taking the case out of the statute, contrary to the rule which prevails in other cases of contract. In this respect, it is always treated as a peculiar case, standing on its own grounds." That marriage, alone and of itself, is not such a part per

formance of a parol antenuptial contract as will withdraw the contract from the operation of the statute of frauds, and render it enforceable in equity, must, I think, be considered the settled law both of this country and England. Many of the cases so adjudging will be found cited in May, Fraud. Conv. 373; Fry, Spec. Perf. p. 263, § 408; Wat. Spec. Perf. p. 390, § 288.

But it is argued that an entirely different doctrine was established by this court in Satterthwaite v. Emley, 4 N. J. Eq. 489; the contention being that Gov. Haines, sitting as chancellor, decided in that case that a marriage contracted by a woman, under an antenuptial parol promise to make a settlement on her, constituted a sufficient consideration to give validity to a postnuptial settlement made in pursuance of such promise. I do not think the case can be understood to declare any such doctrine.

The bill in that

case was filed to procure a decree giving cffect, in favor of the wife, and against the creditors of her husband, to an antenuptial parol contract by the husband to make a settlement. The wife failed to prove the contract on which her suit was founded, and the court so found. With that finding, the case ended. The court, with the case in this condition, was not required to consider what effect, if any, could be given to the contract. That question could not arise until the contract was first established by proof. Nor do I understand that any opinion, uttered as a deliberate judgment, was expressed upon that question. The most that the chancellor did was to intimate the inclination of his mind. He said that, if the contract alleged had been proved, he should have been inclined to hold that a settlement made in pursuance of it was valid. "Such settlement," to speak in his own words, "could not be considered voluntary, but upon a good and valuable consideration, to wit, the marriage, and the conveyance of all the wife's estate." Subsequent to the marriage, it appeared that the wife had conveyed all her lands, through a third person, to her husband, in order, as it was alleged, that they might be conveyed to a trustee in fulfillment of the antenuptial parol contract. If the lands of the wife were conveyed to her husband upon his promise to convey them to a third person in settlement upon her, there can be no doubt that his promise bound him in equity; nor that the wife's conveyance would, in that case, have constituted a perfect consideration for a settlement upon her, provided it had been made promptly, and before her husband had made use of the ownership of the lands as a means of obtaining credit, for, in that case, it will be observed that the wife would have done something more than marry, namely, have conveyed her lands. In this situation of affairs, the duty of the court would be plain. It would be bound to enforce that rule of equity jurisprudence which declares that if a man make a promise to

another person for the purpose of inducing that person to do an act, and the act is done on the faith of such promise, the promisor will be held to his word, and be compelled to do what he promised. Warden v. Jones, 23 Beav. 487, 493; Hammersley v. De Biel, 12 Clark & F. 62. It is thus made plain, as I think, that the judgment of the court in Satterthwaite v. Emley does not give the slightest countenance to the notion that marriage, alone and of itself, is a sufficient consideration to give validity, as against creditors, to a postnuptial settlement made in pursuance of an antenuptial parol promise, and yet that is the only consideration on which the settlement in this case rests. The conduct of the settler was, as against his wife, entirely free from fraud or wrong of any kind. He would have fulfilled his promise at a time when he could have made a voluntary settlement which would have been perfectly valid against the complainant's debt, if the defendant had not persuaded him not to do so. Her conduct, as she describes it, was so unselfish and confiding as to be worthy to be called magnanimous. To prevent her husband's children from losing confidence in his love, and to preserve their affectionate relations, she persuaded him, after the marriage, not to settle his homestead on her then, assuring him that his word was all she wanted. She put her trust in what, under the law, is without the least legal force. This may be the proper subject of regret, but it can have no influence whatever on the judgment of the court. The demands of justice are superior to the claims of affection or benevolence. The law requires a debtor to be just before he is generous; to pay his debts before he attempts to dispose of his property by gift. The deeds in question were executed in fraud of the complainant's rights, and must be set aside.

(51 N. J. E, 353)

In re FARRELL (Court of Chancery of New Jersey. Oct. 17, 1893.)

COSTS-INQUISITION IN LUNACY-JURY FEES.

1. In proceedings in lunacy upon a commission in the nature of a writ de lunatico inquirendo, where the alleged lunatic is found to be of sound mind, or the commission is superseded before a guardian is appointed, the prosecutor cannot be allowed his costs and expenses, however meritorious his conduct may have been, there being no fund out of which they can be directed to be paid.

2. The act of March 23, 1887, (P. L. 48,) does not, in such case, authorize the charge of the fees of jurors and commissioners upon the estate of the alleged lunatic, if he shall be found to be of sound mind.

(Syllabus by the Court.)

Petition of Frank W. Farrell for allowance of the costs and expenses of the inquisition in lunacy from the estate of William E. Farrell, an alleged lunatic, who died pending inquisition. Heard on demurrer

filed by Henry H. Barton and another, who were nominated as executors of decedent's will. Demurrer sustained.

The other facts fully appear in the following statement by MCGILL, Ch.:

On motion for the allowance of costs and expenses from the estate of an alleged lunatic, who died before inquisition of lunacy had. Frank W. Farrell, a brother of William E. Farrell, sued out a commission in the nature of a writ de lunatico inquirendo, under which inquest was had in November, 1892. A jury was summoned, and after a protracted inquiry the commissioners and jurors made return to the commission that, at the time of the inquest, William E. Farrell was of sound mind, memory, and understanding; capable of the government of himself, his lands, tenements, goods, and chattels. Late in February, 1893, upon application of Frank W. Farrell, the chancellor reviewed the evidence which had been taken at the inquest, and upon the 4th of March in the same year, being of opinion that the finding was clearly against its weight, set the inquisition aside, and ordered that a new commission issue. On the 9th of the same month, before a new commission was issued, William E. Farrell died, childless, leaving an estate valued at about $150,000. Immediately after his death, his father, brothers, and sister filed caveats to prevent the probate of any paper purporting to be his will. Later, his widow and one Henry H. Barton offered for probate, to the ordinary, such a paper, in which they, respectively, were nominated as its executrix and execator, and which, in terms, bequeathed and devised to the widow the greater part of the decedent's estate. Probate of that paper was resisted by the next of kin, and contest touching its validity as a will was commenced, and is yet pending. Shortly after the litigation was begun, the widow and Henry H. Barton, and, as well, the next of kin, by separate bills, applied to this court to conserve the property pending the contest in the prerogative court; and the chancellor, having first consolidated the suits commenced by the two bills, took custody of the estate, through the instrumentality of a receiver, merely for the purpose of preserving the same pending the determination of the right to probate of the will and administration of the estate. Frank W. Farrell now applies, by petition entitled both in the lunacy proceedings and in, the suit to conserve the property of the decedent, to be paid out of the estate of William E. Farrell the costs and his expenses in the lunacy proceedings, which will include his necessary petty cash disbursements, witness fees, and expenses, stenographer's charges, fees of the sheriff and jurors, and such just allowances to the commissioners and his counsel as this court may see fit to award. ponents of the will demur to the tion of the court in the premises.

The projurisdic

Herbert A. Drake and George M. Robeson, for the motion. Samuel H. Grey, opposed.

MCGILL, Ch., (after stating the facts.) In Re White, 17 N. J. Eq. 274, application was made to Chancellor Green to compel the party at whose instance a commission in the nature of a writ de lunatico inquirendo had issued the return thereto being that the subject of the commission was of sound mindto pay costs. The chancellor, being satisfied that the proceeding had been instituted in good faith, for the benefit of the alleged lunatic, denied the motion, remarking that in such case the petitioner, in justice, should be allowed his proper costs, whether the lunacy be established or not, adding, however, this language: "But if the party be found of sound mind, or the commission be superseded before a guardian is appointed, the prosecutor cannot be allowed his costs, however meritorious his conduct may have been, there being no fund out of which the chancellor can direct them to be paid." The language quoted was substantially taken from 1 Collin. Lun. 461, and accurately states the rule upon this subject which existed in England prior to the statute 25 & 26 Vict. c. 86, the eleventh section of which provides that the lord chancellor may order the costs, charges, and expenses of and incidental to the presentation of any petition for a commission in the nature of a writ de lunatico inquirendo, or for any order of inquiry under the lunacy regulation act of 1853, and of and incidental to the prosecution of any inquiry, inquisition, issue, traverse or other proceedings consequent upon such commission or order, to be paid either by the party who shall have presented the petition, or out of the estate of the alleged lunatic, or partly in one way and partly in another, as he shall in each case think proper, which order “shall have the same force and effect as orders for the payment of money made by the high court of chancery in cases within its jurisdiction."

In the case Ex parte Ferne, 5 Ves. 832, (1801,) Ann Ferne, upon inquisition, was found to be of unsound mind, so as not to be able to manage herself or her property, and upon the trial of the traverse of that inquisition, such traverse being a matter of right in one who was capable of understanding it, (2 & 3 Edw. VI. c. 3, § 6; Shelf. Lun. 148,) was found to be of sound mind, and capable of governing herself and her property. The commission was thereupon superseded. The petitioners then asked for costs from the lord chancellor, claiming to have established lunacy at the time of the inquisition. Upon these facts the lord chancellor (Loughborough) said: "Where is the fund to pay the costs? Where the commission is superseded, there can be no fund. There is a step to be taken,-possession to be taken of the property. The traverse stops that.