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Cooper, 21 N. J. Eq. 576; Turner v. Hart, perform, the court will not, where a case for 71 Mich. 128, 38 N. W. 890, 15 Am. St. Rep. specific performance has been made out in 243.

other respects, deny relief, without an oppor.

tunity to the orator to move for leave to amend Applying these principles to the circumstan his bill. ces presented by the case before us, clearly (Ed. Note.-For cases in point, see Cent. Dig. an injunction should issue. The findings vol. 44, Specific Performance, § 396; vol. 19, show an injury not only from the essential

Equity, 8 759.) nature of which, but also from its continuous 7. INJUNCTION-MAINTAINING STATUS PEND.

ING LITIGATION - INJUNCTION AGAINST character, the legal remedy is inadequate

WITHDRAWING ESCROW. one which cannot be prevented otherwise, Where, in a suit to compel specific perthan by an injunction.

formance of a contract, whereby defendant s. Decree affirmed, and cause remanded, with

agreed to deposit a deed of his farm in escrow mandate.

with a bank, to be delivered to the orator on the payment of a certain sum by him, where it was shown that S. attempted to withdraw the

deed from the bank before a reasonable time (80 Vt. 48)

had elapsed for the payment of the money by WILKINS v. SOMERVILLE et al.

the orator, and had conveyed the land to an

other, it was proper to issue a temporary in(Supreme Court of Vermont. Chittenden. junction holding the deed and the title to the May 10, 1907.)

property in statu quo. 1. ESCROWS-CONDITIONS-PERFORMANCE.

[Ed. Note.-For cases in point, see Cent. Dig. Where a grantor deposited a deed in es vol. 27, Injunction, 88 86-90, 303-306.] crow for delivery to the grantee, he was competent to annex such conditions to its delivery Appeal in Chancery, Chittenden County ; as he saw fit, and the fact that in doing so he Willard W. Miles, Chancellor. violated the terms of his contract does not give

Bill by John S. Wilkins against Samuel the deed any force which it would not otherwise have, and hence title could not pass by it

Somerville and others. From a decree diswithout a compliance with the conditions of missing the bill, the orator appeals. Reversthe deposit.

ed and remanded, with mandate. [Ed. Note.-For cases in point, see Cent. Dig.

Argued before ROWELL, C. J., and TYvol. 19, Escrows, SS 8, 17.)

LER, MUNSON, and WATSON, JJ. 2. EQUITY JURISDICTION PROPERTY AND RIGHTS THEREIN.

H. S. Peck, for appellant. M. M. Gordon Where a grantor, who had deposited a deed and Geo. W. Wing, for appellees. in escrow for delivery to the grantee when he paid a named sum, later, and before the deed was delivered, conveyed the land to another,

WATSON, J. On January 16, 1902, a conthe original grantee's proper remedy for relief tract was made between the orator and the is in equity.

defendant Samuel Somerville, by which it 3. ESCROWS-CONDITIONS-TIME OF PERFORM

was agreed that the orator should pay the ANCE. A contract by which defendant agreed to

sum of $6,000 for that part of Somerville's deposit a deed conveying his farm in escrow farm lying in Duxbury, containing his homefor delivery to the grantee, on the payment of a stead, and that the deed thereof, when made, certain sum, was not objectionable as uncertain,

should be deposited with the Capital Sarthough it contained no specified time in which the condition of the escrow should be perform

ings Bank & Trust Company, in Montpelier, ed, since by implication performance must be in escrow until that sum should be paid. within a reasonable time.

The farm was believed by both to contain (Ed. Note.-For cases in point, see Cent. Dig. valuable veins of asbestos and talc, and this vol. 19, Escrows, g 11.)

they had in view in their negotiations. On 4. SAME. Under these conditions, where it was found

the same day a warranty deed of the propthat a reasonable time had not elapsed on the

erty was duly executed by Samuel and his day named for the withdrawal of the deed from wife, the defendant Eliza M. Somerville, to the depositary, the conveyance of the property the orator, and was deposited by the directo another the day before was within the time

tion of Samuel with the bank in escrow; but, the grantee by his contract had a right to per form, and, unless the rights of a bona fide pur

instead of the condition being pursuant to chaser intervene, equity requires that the gran his agreement with the orator, he directed tee have a reasonable further time in which to

the depositary to hold the deed until $6,000 perform the condition and receive a deed.

should be deposited to his credit, or until 5. VENDOR AND PURCHASER-CONVEYANCE BY VENDOR TO THIRD Party-NOTICE_EFFECT.

called for by him or his attorney after 30 Where a purchaser of land knew that his days from date. The orator neither convendor had deposited a deed conveying the land sented to, nor had any knowledge of, any to another in escrow for delivery to the grantee, on his compliance with certain conditions,

change in the condition; nor was he afterand was put upon inquiry by the existence of

wards informed of it. Indeed, never therean order restraining the depositary from re after did Samuel make reference to the time delivering the deed to the vendor, he stands in

the deed should remain in the custody of the the same equity as his vendor, and will be compelled to perform the contract with the original

bank, until September 19th, when he wrote grantee to the same extent as the vendor would the orator that after 30 days he should think have been liable to perform.

best to take it therefrom. Again, October 6. SPECIFIC PERFORMANCE RELIEF BILL 6th, he in like manner notified the orator -SUFFICIENCY. Where a bill praying specific performance

that the date for withdrawing the deed was of a contract to convey land does not show the

October 20th, advising him that what he did orator ready and willing, nor that he offers to must be done before then. In answer to

each of these communications, the orator the rights of bona fide purchasers without protested against its withdrawal. Later notice intervene, equity requires that the Samuel extended the date to October 30th, orator be placed as nearly as possible in the and the depositary notified the orator that, same situation as the vendor agreed that he unless payment be made by that time, the should be in that he have a reasonable furdeed would be returned to the vendor. ther time in which to perform the condition Thereupon the orator protested to the latter and receive a deed of conveyance of the that under their agreement he had no right property according to the terms of his conto recall the deed. On the day before the tract. See Battell v. Matot, 58 Vt. 271, 5 bank was thus to return the deed, an order Atl. 479; Ordway v. Farrow, before cited. was issued restraining it from so doing. On But the subsequent purchaser, Mears, was the same day, Samuel and wife by their deed not without notice. Before he took his deed of warranty conveyed the land, together with he knew all concerning the deed to the orator, land in Fayston, to the defendant Mark and was put on inquiry as to the restrainMears, who in making the purchase was co ing order against the bank, issued the same operating with defendants George D. Mears, day. Hence Mears, standing on the same A. W. Slocum, and Mathew M. Gordon; it equity as his vendor, will be compelled to perbeing understood and agreed between them form the contract with the orator by a conthat Mark Mears should furnish the money veyance of the land in the same manner and to pay for the property, hold the title, and to the same extent as the vendor would have transfer the same to a company to be formed been liable to do, had he not transferred the by them. In this purchase the consideration legal title. 1 Story, Eq. Jur. 88 396, 784; , $

. , 2 438v.

paid by check, with an agreement to pay the Sanders, 6 Hare, 1; Champion

v. Brown,

balance in 60 days. The deed to Mears was sent by him to the defendant Eber Huntley, town clerk of Duxbury, for record. Soon thereafter this suit was commenced, with a temporary injunction holding the deed and the title to the property in statu quo.

The vendor, when depositing the deed with the bank, undoubtedly was competent to annex such conditions to its delivery to the orator as he saw fit, even to the extent of retaining the right to withdraw it from the custody of the depositary at any time, or after a specified time. The fact that in. so doing he violated the terms of his contract does not change the situation in this respect, nor give the deed any force which it would not otherwise have. Stanton v. Miller, 58 N. Y. 192. No title could pass by it without a compliance with the conditions of the deposit.

It is clear that the orator cannot have adequate remedy by an action at law. In view of the conveyance of the property to a subsequent purchaser, the question is: What relief will be granted in a court of equity ? The contract in its nature and incidents entirely unobjectionable. True, it contained no specified time in which the condition of the escrow should be performed; yet there was no uncertainty in this respect, since by implication performance must be within a reasonable time. Ordway v. Farrow, 79 Vt. 192, 64 Atl. 1116. It is found that such reasonable time had not elapsed October 30, 1902, the day finally named by the vendor for the withdrawal of the deed from the bank. Hence the conveyance of the property to Mears the day before was within the time in which the orator by his contract had right to perform. Yet by that conveyance the vendor not only disabled himself from carrying out his prior contract, but he prevented its subsequent performance by the orator also. In these circumstances, unless

Johns. Ch. 398; Ten Eick v. Simpson, 1 Sandf, Ch. 244; Haughwout v. Murphy, 22 N. J. Eq. 531. This doctrine rests upon the general principle in equity that, from the time of a contract for the sale of land, the vendor, as to the land, is considered a trustee for the purchaser, and the vendee, as to the purchase money, a trustee for the vendor; and every subsequent purchaser from either, with notice, is subject to the same equities as would be the party from whom he purchased. 1 Story, Eq. Jur. § 789; Taylor v. Stibbert, 2 Ves. Jr. 439; Ten Eick v. Simpson, 1 Sandf. Ch. 244.

The prayer of general relief is sufficient. It is said, in substance, however, that the bill does not show the orator ready and willing, nor that he offers, to perform; but, since a case for specific performance has been made out in other respects, a court of equity will hesitate to deny such relief without an opportunity to the orator to move for leave to amend his bill. In the event of such relief being granted, we do not understand that damages are here sought by the orator in addition thereto. Whether, in case he does not avail himself of specific performance, any claim he may have for damages or for money expended may be here enforced by way of a lien on the property, or otherwise, is a question on which we give no intimation,

It sufficiently appears, without further discussion, that, as far as the temporary injunction relates to the land in question, it was properly issued to protect the orator's equitable rights in the premises, and, with such modifications as may be necessary to the carrying out of the decree, it should be made perpetual, provided that, if the orator fails to perform within the time limited, then the injunction should be dissolved for his failure to perfect bis title under the decree. To the extent that the injunction relates to

other land, if at all, it was wrongfully is-road, are benefited in their use, if not in the sued, and should be dissolved. Regarding market value of the properties, by the consuch land, the case will be proceeded with struction of the sewers. Paterson and Hudon the question of injunction damages, if son River Railroad Co. v. Passaic, 54 N. J. any are claimed.

Law, 340, 23 Atl. 945; Erie Railroad v. Pat. The defendant Huntley has no interest in erson, 72 N. J. Law, 83, 85, 59 Atl. 1031. the matters here litigated; he being made a The suggestion that some of these properparty to the suit only for purposes of the ties are not benefited, because they already injunction,

have private sewers discharging into the Decree reversed, and cause remanded, with Maurice river, cannot be entertained, espemandate. Let the costs below be there de- cially in view of the recent legislation having termined.

in view the protection of rivers from pollution.

Since substantially the whole cost, as far (75 N. J. L. 177)

as the statute permitted its assessment at all, SIMMONS V. MAYOR, ETC., OF CITY OF

was assessed upon certain properties includMILLVILLE.

ing the prosecutor's, to the exclusion of (Supreme Court of New Jersey. June 10, 1907.)

others, the result is injurious to him, and 1. MUNICIPAL CORPORATIONS SEWER IM

cannot be sustained. Schlapfer v. Town of PROVEMENTS-ASSESSMENTS FOR BENEFITS. Assessments for benefits from the construc

Union, 53 N. J. Law, 67, 20 Atl. 894. tion of sewers in cities must conform to the There is another error in the proceedings. act of February 19, 1995 (P. L. 1895, p. 95). By the act of February 19, 1895 (P. L. 1895, p.

[Ed. Note.-For cases in point, see Cent. Dig. 95; Gen. St. p. 2138), it is provided that, vol. 36, Municipal Corporations, 8 1109.)

where sewers may be constructed forming 2. SAME-VALIDITY.

part of a general system of sewerage, it The total assessable cost of a sewer system was more than $100,000. The total assessment

shall and may be lawful to assess benefits, for benefits was $5 less, and was levied upon not only upon the land fronting on the line some of the abutting owners to the exclusion of of the sewer, but also upon all lands throughothers and to the exclusion of owners within the

out the entire sewerage area in the municsewerage area, but not along the line of the sewer. Held, that the assessment was invalid.

ipality. The language of the act is in form (Syllabus by the Court.)

permissive, but our courts have held that a

similar statute of 1887 was mandatory. CenCertiorari by Thomas S. Simmons against

tral Land Co. v. Bayonne, 56 N. J. Law, 297, the mayor and common council of the city

28 Atl. 713. The constitutionality of the act of Millville to review an assessment for

of 1895 was sustained in Vreeland v. Baygewer benefits. Assessment set aside.

onne, 60 N. J. Law, 168, 37 Atl. 737. Since Argued February term, 1907, before GAR

that decision the practice seems to have been RISON, SWAYZE, and TRENCHARD, JJ.

to proceed under that act. Brown v. Town French & Richards, for prosecutor. Louis of Union, 62 N. J. Law, 142, 40 Atl. 632; SeaH. Miller, for defendant.

men v. Camden, 66 N. J. Law, 516, 49 Atl.

977; Camp v. Neuscheler, 67 N. J. Law, 21, SWAYZE, J. The prosecutor seeks to set 50 Atl. 597; Butler v. Montclair, 67 N. J. aside an assessment of benefits for sewers Law, 426, 51 Atl. 494. Brown v. Town of in the city of Millville. The proceedings Union was affirmed in 65 N. J. Law, 601, 48 were had under the act of April 7, 1890 (P. | Atl. 562, and the court said: “The manifest L. 1890, p. 192). Only lands fronting on the intent of that act (of February 19, 1895) is line of the sewer, and not all of such lands, that, whenever sewers are constructed in any were assessed. Churches, factories, and rail municipality at public expense, and special road property were altogether omitted, and benefit accrues therefrom to private lands the aggregate frontage which thus escaped within the corporate limits, an assessment assessment was large. The report of the for the benefit shall be imposed on such commissioners shows that they did not assess lands, and the act prescribes constitutional in respect to the cost of the work so far as regulations for the levying of such an asit extended beyond the line of the whole sessment." property assessed, but assessed the cost Since the act of 1895 is constitutional, genthereof upon the city at large. The total eral, and mandatory, sewer assessments in cost of the sewers was $111,075.24; the am all cities must be made in conformity with ount assessed upon the city at large $10,531. its provisions, as was said of the older act 05. Of the balance $100,544.19, all but $5 in Central Land Co. v. Bayonne, unless it was assessed upon abutting property owners. has been repealed or is inapplicable to the

The act requires a just and equitable as present case. sessment of the cost upon all the owners of It is argued that it is repealed by the act lands fronting on the improvement which of March 14, 1895 (P. L. 1895, p. 298; Gen. are peculiarly benefited thereby, in propor St. p. 631, $ 842), and the act of 1906 (P. L. tion as nearly as may be to the advantage 1906, p. 414). This contention cannot preeach shall be deemed to acquire. Gen. St. vail. The only effect of the act of March 14, p. 625, § 804. We cannot doubt that both 1895, is to enable a city to provide by ordichurches and factories, and perhaps the rail nance for the appointment of commissioners

of assessment, instead of having them ap tional expense among those who profited by pointed by the circuit court. The only ef it. It would be manifestly unjust to charge fects of the act of 1906 are to provide for property along the line of a main or trunk the appointment of a special officer to col sewer with the additional expense caused lect assessments, to enable the common coun by the necessity of carrying the sewage of cil to regulate the rate of interest, and to other property, and it would be almost as extend the time for the commissioners to clear an injustice to put the burden of this report. None of these amendments conflict expense upon the general tax levy in ease of with the provisions of the act of February the property of which the existing needs 19, 1895, that require the assessment for made necessary, or the probable future needs benefits to be coextensive with the drainage made advisable, the additional expense. area. An assessment may be levied under We think the assessment in this case was the act of 1890, and yet in accordance with not in accordance with the statutory provithe rules prescribed in the act of February sions, and it must therefore be set aside, 19, 1895. Camp v. Neuscheler, 67 N. J. Law, with costs. 21, 50 Atl. 597. Even the provision of sec Since the property is subject to assesstion 22, which makes the assessment a lien ment for the sewers, it is the duty of the from the confirmation of the report, is not court, under the act of 1881 (Gen. St. p. 3404, necessarily inconsistent with the provision of $ 547), to make a proper assessment. In order the act of 1895, which postpones the collecti- | that the city may have an opportunity to bility of the assessment. It has been held apply to the court for the purpose, judgment that, where the statute so provides, the lien must not be entered, except upon two days' may attach at the time of making the im notice to the city authorities. provement, although, of course, the amount could not then be ascertained. Hartshorn v. Cleveland, 52 N. J. Law, 473, 19 Atl. 974,

(75 N. J. L. 25) affirmed 54 N. J. Law, 391, 25 Atl. 963. That MUNDY V. BOARD OF WATER COM'RS there is no necessary connection between the

OF PERTH AMBOY. time when the lien attaches and the time (Supreme Court of New Jersey. June 10, 1907.) when the amount is collectible is shown by MUNICIPAL CORPORATIONS MUNICIPAL the common provision making the assessment BOARDS-PROCEEDINGS-REVIEW BY COURTS. payable in installments. Moreover, both sec

If a municipal board on whom powers of

condemnation have been conferred by the Legistions, 22 and 24, were in the original act of

lature resolves to acquire land by purchase at a 1890, and the amendments of March 14, 1895, price greatly in excess of its market value, such and of 1906 are to be read into that act. The resolution will be set aside as unreasonable mere amendment of these sections does not

and improvident; the power of eminent domain

having been conferred to meet just such juncindicate a legislative intent to repeal the

tures. general scheme established by the act of

[Ed. Note.-For cases in point, see Cent. Dig. February 19, 1895.

vol. 36, Municipal Corporations, 8 623.] The act of 1903 (P. L. 1903, p. 156) relates (Syllabus by the Court.) only to the special case where an assessment for a lateral sewer has been confirmed prior of water commissioners of Perth Amboy to

Certiorari by John L. Mundy to the board to the confirmation of the assessment for the

review a resolution. Resolution set aside. trunk sewer or the intermediate connecting

Argued February term, 1907, before GARsewer. The act of 1904 (P. L. 1904, p. 88)

RISON, SWAYZE, and TRENCHARD, JJ. applies only to extensions of sewers and sewer systems. Neither act has any bearing

Adrian Lyon, for prosecutor. Charles C. upon the present case.

Hommand and Willard P. Voorhees, for waIt is further argued that the act of Feb ter commissioners. George S. Silzer, for de ruary 19, 1895. applies only to the main out

fendants Fountain. let sewer, and that, since the cost of that sewer was assessed upon the city at large, GARRISON, J. The resolution adopted by the prosecutor cannot complain on that the board of water commissioners of the city ground. This argument is based upon a mis of Perth Amboy for the purchase of 3244 reading of the act of 1895. That act is not acres of land at Runyon pumping station for limited to the main outlet sewer, but extends the sum of $15,500 should be set aside. to all main, trunk, or intercepting sewers, The testimony shows that from recent and the provision for assessment upon lands sales, and even from a recent purchase of fronting on the line thereof makes it clear substantially similar land by this board, it that something more than a mere outlet should reasonably have been apprehended sewer was intended. In every system of that the fair market value of the tract of sewerage, some sewers must be main or 3213 acres would not exceed $1,000. trunk sewers carrying not only the sewage The board has had conferred upon it by the of buildings along the immediate line, but Legislature the power of condemnation to receiving also the discharge of other sewers. meet just such a situation as this. Under The main or trunk sewers are necessarily these circumstances the failure of the board larger and more expensive, and the object of tu have recourse to proceedings in condemna. the act of 1895 was to distribute the addi tion in view of the excessive purchase price

demanded is an unreasonable and improvi. dent exercise by the board of the powers conferred upon it.

The resolution is set aside.

(72 N. J. Đq. 819) CONTINENTAL COMPRESSED AIR CO. v.

FRANKLYN. (Court of Chancery of New Jersey. April 19,

1907.) 1. INJUNCTION-SUBJECTS OF RELIEF-ACTION AT LAW-ADEQUATE LEGAL REMEDY.

A garnishee by a statutory plea denying indebtedness to the defendant in attachment being entitled to raise the question at law whether the defendant in attachment could lawfully exercise an option in contract to declare the contract void, and thus discharge the garnishee's obligation to make payment under the contract, the garnishee was not entitled to maintain a bili to enjoin the proceedings at law in order to obtain a determination of such question in equity.

[Ed. Note. For cases in point, see Cent. Dig. vol. 27, Injunction, 88 15, 24.] 2. SAME — EQUITY - EXERCISE OF POWERS TIME.

The remedial powers of a court of equity to enforce by injunction equitable rights which cannot be enforced at law may be exercised after, as well as before, judgment at law.

Bill by the Continental Compressed Air Company against Claude S. Franklyn for an injunction to restrain an action at law. Denied.

Defendant issued an attachment against the Taylor Hydraulic Air Compressed Company, Limited, and served notice of garnishment on complainant. The defendant in attachment appeared, and at trial judgment was rendered against it for the amount of the debt for which the attachment was issued. Action by scire facias is now pending by defendant against complainant for the recovery of an indebtedness alleged to have been due from complainant to the defendant in attachment at the time of the garnishment. The bill now filed by complainant seeks to restrain the pending action. The demand for equitable relief is based upon the claim that the statutory plea which complainant is required to file in the pending action at law is insufficient to fully protect its rights. The bill alleges that the supposed debt which was garnished was money then due from complainant to the defendant in attachment under a certain written contract, in wbich contract the right was given to the defendant in attachment to exercise the option, in the event of a default of payment, to declare the contract void and return certain moneys already paid, and that such option was exercised by the defendant in attachment after the attachment was issued and the garnishinent made.

Jobn Meirs, for complainant. Harvey F. Carr, for defendant.

tion in this cause. Where a court of law can do as full justice to the parties and to the matter in dispute as can be done in equity, this court will not stay the proceedings at law. The suggestion of equitable jurisdiction in this cause is based upon the claim that the statutory plea of complainant as garnishee, to the effect that it is not indebted to the defendant in attachment, is inadequate to enable complainant to disclose and avail itself of the couditions stated in the bill. It seems manifest that there can be no foundation for that claim. That statutory plea is treated by the courts as substantially a general issue and as sufficient to enable the court to fully determine the rights of the parties. Welsh V. Blackwell, 15 N. J. Law, 55, 56. With that breadth given to the statutory issue at law, it necessarily follows that, in determining whether the defendant in attachment could lawfully exercise the option to declare the contract void and thus discharge complainant's obligation as garnishee to make the payments named in the contract, the law court will be controlled by the same principles which would control this court in the determination of the same question.

While I am entirely clear that complainant has no rights which may not be fully protected in the pending action at law, it may not be inappropriate to add that, should it transpire that equitable rights do exist which the law courts are unable to enforce by reason of limitations incident to their procedure or rules of action, the remedial powers of this court may be extended to such conditions as well after as before judgment.

The injunction now sought will be denied.

(74 N. J, L. 445) DORAN v, THOMSEN, (Supreme Court of New Jersey. May 23, 1907.) 1. NEGLIGENCE USE OF AUTOMOBILE BY THIRD PERSON-LIABILITY OF OWNER.

An owner of a vehicle is not liable for an injury caused by the negligent driving of a borrower, if it was not used at the time in the owner's business.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, § 140.] 2. MASTER AND SERVANT-TORTS OF SERVANT -LIABILITY OF MASTER.

A master is ordinarily liable to answer in a civil suit for the tortious act of his servant, if the act be done in the course of his employment in his master's service. Whether so done or not must depend upon the facts of each particular case.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, 88 1226–1228.] (Syllabus by the Court.)

Action by Patrick Doran against Hugo A. Thomsen. Demurrer to declaration sustain. ed as to the first and third counts and over ruled as to the second count.

Argued November term, 1906, before HEN. DRICKSON, SWAYZE, and TRENCHARD, JJ.

LEAMING, V. C. (after stating the facts). I am unable to recognize equitable jurisdic

66 A.-57

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