tract provisions was upon the plaintiff. Turner v. Wells, 64 N. J. Law, 269, 45 Atl. 641; Feeney v. Bardsley, 66 N. J. Law, 239, 49 Atl. 443.

We incline to think that there was no evidence tending to show that completion was delayed by any neglect or default of the owner or any agent of his. But if there was, it is perfectly certain that there was no evidence tending to show that any claim was made for an extension as required by the contract, and hence no extension was or could have been allowed. We also think there was no conclusive evidence of waiver of the contract provisions in regard to timely performance, or extension of time, or of the defendant's right to compensation for delay.

tion of a verdict for the full amount of the plaintiff's claim was therefore improper. The judgment of the court below will be reversed, and a venire de novo awarded.

(90 N. J. Law, 9)

COOK v. BENNETT GRAVEL CO.

(Supreme Court of New Jersey. Nov. 5, 1917.)
1. TRESPASS 63 UNLAWFUL CUTTING OF
TREES INTENT.

that if any person cuts down or destroys a tree
4 Comp. St. 1910, p. 5396, § 1, providing
on lands to which he has no right or title with-
out leave from the owner he shall forfeit $8,
trees are cut under claim of ownership and
does not permit assessment of penalty where the
without the intent to violate the statute.
[Ed. Note.-For other cases, see Trespass,
Cent. Dig. § 148.]
2. STATUTES

2254-RE-ENACTMENT-PRESUMPTIONS JUDICIAL CONSTRUCTION.

the courts, the Legislature in re-enacting it Where an act has once been construed by must be presumed to have done so with the judicial construction in mind.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 306.]

3. TRESPASS 67 - CUTTING TREES — REMEDIES OF OWNER-QUESTIONS FOR JURY.

[3, 4] The view of the trial judge was to the contrary. He seems to have based his conclusion upon a written request addressed by the architect to the defendant on November 29, 1915, that defendant pay to the plaintiff $5,220.55, when certain work therein mentioned had been completed by the plaintiff. We pause to remark that this letter was evidently written under a misapprehension, because it is conceded that not even upon full completion would such amount be due. But apart from that we think the view of the trial judge erroneous. His holding necessarily asserted that this document conclusively established either (1) that the contract had been performed, or (2) that the time for performance had been legally extended for a period equivalent to any delay. We Appeal from Circuit Court, Monmouth think it did not so establish either proposi-County. tion.

The powers of the architect under whose direction a building is erected, and the force and effect of any certificate he may give, are determined strictly by the contract. Newark v. New Jersey Asphalt Co., 68 N. J. Law, 458, 53 Atl. 294; Welch v. Hubschmitt, 61 N. J. Law, 57, 38 Atl. 824; Gerisch v. Herold, 82 N. J. Law, 605, 82 Atl. 892, Ann. Cas. 1913D, 627; Mackinson v. Conlon, 55 N. J. Law, 564, 27 Atl. 930.

In suit under 4 Comp. St. 1910, p. 5396, for penalty for alleged unlawful cutting of trees, defended on the ground of claim of ownership of the land, the question of intent is for the jury, and if no unlawful intent is found, the plaintiff's damages must be limited to his actual damage, and not to the statutory penalty. [Ed. Note.-For other cases, see Trespass, Cent. Dig. § 150.]

Action by Perrine R. Cook against the Bennett Gravel Company. Judgment for plaintiff, and defendant appeals. Reversed.

Argued November term, 1916, before GUMMERE, C. J., and TRENCHARD and BLACK, JJ.

Durand, Ivins & Carton, of Asbury Park, for appellant. Charles F. Dittmar, of Asbury Park, for respondent.

GUMMERE, C. J. The appeal in this case A perusal of the provisions of the contract brings up for review a judgment recovered in question discloses that thereby the archi- by the plaintiff, Mr. Cook, in an action tect had power by his certificate to determine brought under an act entitled "An act to preconclusively that the contract had been com- vent the unlawful waste and destruction of pleted. But that he did not do. He did timber in this state" (Comp. Stat. p. 5396), not certify that it had been completed either the complaint being that the defendant had on October 1, 1915, the date required by the unlawfully cut down 173 trees growing upon contract, or on November 29, 1915, the date the plaintiff's land, and the claim being that of his certificate, or, in fact, that it had been under the statute referred to the plaintiff completed on any other date. On the con- was entitled to recover from the defendant a trary he stated therein that it had not been penalty of $8 for each tree so unlawfully cut finished in several substantial particulars. down. The defense interposed was that the Under the contract he had no authority to trees which were the subject-matter of the determine how much the contractor, upon litigation were growing, not upon the propcompletion, was entitled to be paid. As a erty of the plaintiff, but upon that in the consequence it follows that the so-called cer- ownership of the defendant, and a large tificate was no bar to the defendant's coun- amount of testimony was taken on both sides terclaim for damages for delay in the com- for the purpose of settling the location of the pletion of the buildings, and that the direc- dividing line between their respective prop

erties. The trial court instructed the jury that if they should find the trees which had been cut down by the defendant were growing upon the plaintiff's side of the line, then, under the Timber Act he was entitled to recover the penalty prescribed therein, without regard to the amount of damage actually sustained by him through the wrongful act of the defendant.

The only question raised by the present appeal is whether the instruction just recited was sound in law. On behalf of the plaintiff it is contended that it is immaterial, in the determination of a right of recovery under the statute, whether the defendant acted in good faith, and in an honest belief that it was cutting timber upon its own property, or whether it was guilty of a willful and intentional trespass; while, on the other hand, it is argued on behalf of the defendant that where the acts complained of are done in the honest belief by the defendant that he is cutting timber on his own property, the plaintiff's right of recovery is limited to the actual loss sustained by him from the cutting of the timber.

cut down trees standing upon lands of another, believing that they were upon his own property.

It is to be observed that the same act which by section 1 subjects the perpetrator to a penalty, subjects him by the second section to a criminal prosecution. It is hardly to be supposed that the Legislature intended to make criminal an act done in perfect good faith, and under a claim of right fully believed in; and yet such a purpose must be attributed to the lawmaking body if the first section of the statute subjects the unintentional offender to a penalty; for if the element of intent is absent from the first section, it must also be absent from the second. Moreover, the statute of 1820, although an original enactment, was largely taken from the act of June 13, 1783 (Pat. Laws, p. 49). The first section of the earlier act is adopted almost verbatim in the act of 1820, the only difference being that the penalty prescribed is £3 for each tree, etc., instead of $8. In 1818 Mr. Justice Southard, speaking for this court in Thompson v. Burdsall, 4 N. J. Law, 173, declared that this statute only

justification for his trespass, and not where he relied upon his title to protect him; and the soundness of this declaration is made manifest by section 2 of the act of 1783, which declared:

"That if any person, or persons shall saw any each and every person, so offending, shall, on log, or logs so stolen, knowing them to be such, conviction," etc.

The use of the words italicized makes it

[1] It goes without saying that the sound-imposed a penalty where the party had no ness of the one contention or the other depends upon the true construction of the Timber Act. The history of that statute is set out in the opinion of the Court of Errors and Appeals in the case of Terrone v. Harrison, 87 N. J. Law, 541, 94 Atl. 600. It was originally enacted in 1820. Penn. Laws, p. 700. Its first section provides that if any person shall cut down, carry away, or destroy any tree, sapling, or pole, standing or lying on any land within this state to which said person has not any right and title, without leave first had and obtained of the owner or owners of said land, the person so offending shall forfeit and pay for each tree, etc., so cut down, carried away, or destroyed the [2] The first section of the act of 1783 sum of $8. The second section of the statute having been embodied in the enactment of made the same offense criminal, and punish- 1820, the Legislature which passed the later able by a fine or imprisonment, but contained act is to be presumed to have adopted the a proviso that a person who had been sub-earlier one with the meaning which had aljected to a prosecution for the penalty pro-ready been ascribed to it by judicial con

vided in the first section should not be sub

plain that it was the intention of the Legislature in enacting section 1 to deal with perbelief in its existence, tortiously cut down sons who, without any shadow of right, or and removed standing timber upon lands not belonging to them.

struction. Fritts v. Kuhle, 51 N. J. Law, 199, 17 Atl. 102; Anderson v. Camden, 58 N. J. Law, 519, 33 Atl. 846; De Raismes v. De Raismes, 70 N. J. Law, 18, 56 Atl. 170; Neilson v. Russell, 76 N. J. Law, 32, 69 Atl. 476; Rutkowsky v. Bozza, 77 N. J. Law, 725, 73

Atl. 502.

ject to conviction and punishment criminally. The third section provided that if any person should saw up any log, or receive or buy any tree, sapling, log, or timber so unlawfully taken and carried away, knowing the same to have been so unlawfully taken and carried away, he should be deemed guilty of a misdemeanor, and punished by fine or imprisonment. In 1874 the second and third sections of this act were transferred to the Crimes Act (Revision 1877, p. 245), but, as was held in Terrone v. Harrison, supra, such transfer did not operate to repeal section 1 of the act, but left it in full force and effect. The matter for solution, then, is whether the Legislature in 1820 intended that the penalties of the statute then enacted should be vis

[3] In the present case it should have been left to the jury to determine whether the wrongful acts complained of were committed by defendant under an honest belief that it was cutting timber upon its own property, coupled with an instruction that if they should so find the plaintiff's damages should be limited to the actual loss sustained by him through the wrongful act of the defendant.

The judgment under review will be re

(87 N. J. Eq. 49)

STERNBERG v. WOLF. (No. 31/763.)

insolvent. The estate of David Wolf is good. I have already held that it is responsible to

(Court of Chancery of New Jersey. Feb. 19, the extent of at least $5,000 for the assets

TION.

1917.)

1. WILLS 675-LEGACY SUBJECT TO CONDIWhere a father willed his son $2,000, to be paid him at the age of 26 if he should grow up to be a good and useful man, free from evil habits and associations, the payment to be entirely within the discretion of the mother, who should decide whether the son was entitled, if the mother found that the son fulfilled the conditions, he took, not from her bounty, but as his father's legatee.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1587-1589.]

2. TRUSTS COURT.

287-Power-DevoluTION

ON

wasted.

Mrs. Sternberg, Walter's mother, has, in a formal paper, executed after Walter came of age, certified that he has grown up to be a good and useful man, free from evil habits and associations. It is admitted that the certificate conforms to the facts.

The question is whether payment of the $2,000 can be enforced against the estate of David Wolf.

[1] I doubt whether this can be called a case of precatory trust. Eberhardt v. Perolin, 48 N. J. Eq. 592, 23 Atl. 501. The estate is not given to Mrs. Stern in the first Where a father willed his son $2,000, to be instance, and she desired or recommended to paid him at the age of 26 if he grew up to give thereout a certain sum of money. The be a good and useful man, free from evil habits gift is to the son, who is to have it if he and associations, the mother to decide the ques-fulfills two conditions. He must reach the tion, she had a power in the nature of a trust, and if she became disqualified the power would not fail but would devolve upon the court. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 407.]

Where testator willed his son $2,000, to be paid at age of 26 if he grew up free of evil habits and associations, question to be decided by mother, fact that she and her coexecutor wasted the assets of the estate did not disqualify her from exercising her independent and separable power to designate her son as entitled to the legacy, so that its payment might be enforced against her solvent coexecutor's estate. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 508-522.]

Bill for construction of a will between Walter Sternberg and Rose Wolf, executrix.

Decree ordered.

Otto Stiefel, of Newark, for complainant.

Adrian Riker, of Newark, for defendant.

STEVENS, V. C. The testator, after giving a legacy of $2,000 to his son Isaac, conditioned upon his arriving at the age of 21 years, provided as follows:

"Fifth. If my said son Isaac W. Stern shall grow up to be a good and useful man, free from evil habits and associations, it is my wish that he shall receive the further sum of $2,000 out of my estate, to be paid to him, without interest, when he arrives at the age of twenty-six years. This payment, however, is to be entirely within the discretion of my wife Rosa Stern who shall decide whether my son has been entitled to said payment or not. Should such payment not be made to my said son for any reason, or should my said son die before arriving at the age of twenty-six years, the said last named sum of $2,000 shall also be paid to my wife Rosa Stern for her own use.'

Testator gave the residue of his estate to his wife. He made his wife and brother-inlaw, David Wolf, his executors. The estate that came into their hands was ample to satisfy both of the legacies given to Isaac, but the two executors lost it in a venture of their own. Mrs. Stern (now Sternberg) is

age of 26, and he must grow up to be a good and useful man. His mother is made the judge. If she finds that he fulfills the conditions, he takes, not from the bounty of his mother, but as the legatee of his father. [2] The argument is that Mrs. Stern is disqualified from acting because she has dissipated the fund. I think she had a power in the nature of a trust, and if she became disqualified, the power would not have failed, but would have devolved upon the court. Says Lewin in his work on Trusts, *600:

"There are not only a mere trust and a mere power, but there is also known to this court a power which the party by (to?) whom it is given is intrusted and required to execute; and with regard to that species of power the court and qualities of a trust that if the person who considers it as partaking so much of the nature has the duty imposed upon him does not discharge it, the court will, to a certain extent,

discharge the duty in his room and place."

In the case in hand the duty is so manifestly a judicial one that the court would have no difficulty in exercising it.

[3] But I doubt if the mother be disqualified. She did her son a wrong when she wasted the money. Must she be required by this court to do him another? Must the court say to her, I will not regard your certificate because you are not in possession of the fund? The cases hold that the power of consenting to an advancement is not extinguished by bankruptcy. In re Cooper, 27 Ch. Div. 565. Alexander v. Mills, L. R. 6 C. A. 124. If this afford a legitimate analogy, then the fact that the mother no longer holds the .fund is no reason why she should not exercise what seems to be an independent and separable power.

The question having been passed upon by the person to whom the power to pass upon it was committed, the son became, for all purposes, his father's unconditional legatee, entitled to pursue his remedy in precisely the same way as any other legatee might.

(Supreme Court of New Jersey. Feb. 27, 1917.) the county board could not act of their own

1. ΤΑΧΑΤΙΟΝ 468-ASSESSMENT-OMITTED body of the taxing district, as required by

exists at their death, and, like any other per- a concrete, simple statement which would sonal liability then existing, is to be satisfied easily demonstrate the true fact. out of their estate.

[1] It is contended that under the statute the trustees may make such payments as they see fit, provided the company is not insolvent. The difficulty with the situation is that one cannot tell whether in the end there will be sufficient to pay all or not. The outstanding claims amount to approximately $42,000. The outstanding assets amount to about $70,000. Of these, some $36,000 are accounts receivable, and some $30,000 bills receivable, admittedly slow of collection. There is only at this time in the hands of the trustees some $4,000 in cash. It would be dangerous to conclude that the assets will in the end realize sufficient to pay all the debts. There are too many contingen

(Court of Chancery of New Jersey. Feb. 26, cies, and in the exercise of good business

1917.)

1. CORPORATIONS 616-DISSOLUTION-PAYMENT OF CREDITORS BY TRUSTEES.

Where the outstanding claims against a corporation in dissolution amounted to approximately $42,000, and the outstanding assets amounted to about $70,000, of which some $36,000 were accounts receivable, and some $30,000 bills receivable, the trustees, in whose hands was only some $4,000 in cash, could not make such payments as they saw fit, giving some creditors larger proportionate amounts than others, merely because the company was not insolvent. [Ed. Note.-For other cases, see Corporations, Cent. Dig. § 2446.] 2. CORPORATIONS TRUSTEES.

609

-

DISSOLUTION

The Court of Chancery has no actual control over nonresident trustees in dissolution of a corporation, and, if they are left in charge of the assets, must operate against them through

the courts of some other state.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2420-2423.]

Bill for receiver between Charles H. Horne & Company and others and Frederick Harrington, Incorporated, and others. Receiver appointed.

Peirce & Hoover, of Newark, for complainants. Vail & McLean, of Elizabeth, for defendants.

judgment we have no right to assume that they may realize sufficient to pay all, and therefore that they may increase the payments of some creditors over others. Whether in any case after dissolution trustees may so act, I greatly doubt.

[2] All of the trustees are nonresidents, so that this court has no actual control over them and would have to, if they are left in charge, operate through the courts of some other state. One of the creditors charged to have been preferred is the largest creditor and practically controls the trustees.

I do not make at this time any finding that there is any actual fraud on the part of anybody. I think that possibly the trustees considered, as business men, that they lawfully might do what they did do. However, the fact that they did it compels me to assume charge in some way or other. I will appoint a receiver.

MCNALLY v. PALMER et al. (No. 41/654.) (Court of Chancery of New Jersey. Feb. 26, 1917.)

1. TENANCY IN COMMON

-FRAUD BY PURCHASER.

7-CONVEYANCES

LANE, V. C. It appears that Frederick Though ordinarily a purchaser need make Harrington, Incorporated, has been dissolv- no disclosures to vendor, yet a brother living ed. Proceedings in dissolution were taken near property, owned in common by him, a. sister, living at a distance, and others, having in December, 1915. They did not become ef- practically represented to her, desiring to sell fective until December, 1916. Since that her share at the market value, that there was time the directors of the company, who are no immediate prospect of a sale of the whole all nonresidents at this time, have been act-be done with it was to develop it, which she was property, and that the only thing which could ing as trustees under the statute. They unwilling to do, and that the price then dishave collected in the assets of the company, cussed was the market yalue, and thereafter, and the charge of the bill, supported by af- before making a contract with her, having ascerfidavits, is that payments have been made tained that he could dispose of the property at a considerably greater price, and then, withto some creditors in larger proportionate out disclosing this fact, got her to sign a deed amounts than to others, resulting in what at the price first named, the transaction was may in the end be preferences. This statevoidable by her. ment is not met by the defendant with any convincing proof. Inasmuch as the bill was filed in December, 1916, a sufficient length of time has elapsed for the trustees, if the charge of the bill is false, to have presented

Common, Cent. Dig. § 19.]
[Ed. Note.-For other cases, see Tenancy in

2. SPECIFIC PERFORMANCE 92(2)—TIME.

Time not being of the essence of the contract, specific performance may be decreed any time within reason; and, if good title can be