it is all right; I am not ashamed of any-
thing; go ahead and let's hear what you
have to say”—whereupon the constable said,
"Since you know, I won't bother reading this
paper," and handed him what purported to
be a copy.
Under our decisions this is not
a good service. The summons must be read.
Ayres v. Swayze, 5 N. J. Law (2 Southard)
812; Rape v. Titus, 11 N. J. Law (6 Halsted)
314. If the defendant had refused to listen
or to remain to be served, the case would
be different (Slaght v. Robbins, 13 N. J, Law
[1 J. S. Green] 340); but defendant neither
refused to listen nor went away. On the
contrary, he was quite ready to hear the pa-
per read in presence of a stranger.

[2] Secondly, the copy handed to defendant had no signature. On its face there was no indication before what justice the cause was pending. It is true that the name of the justice was printed on the indorsement, but the statute requires a copy to be left with the defendant, and what he received was a copy of an apparently unsigned, and therefore unissued, summons. Such a paper had no binding force.

living in the vicinity of it not only unbearable, so far as physical comfort goes, but destructive to health. A very large number of witnesses have appeared in support of the complainant. They uniformly testified that they had detected the fume almost daily and related the effect it had upon them. Almost invariably these witnesses stated that they had suffered from irritation of the throat while the fumes were passing through the air, and in some cases it resulted in violent vomiting spells. Many dates have been given upon which the fumes were seen, and an attempt has been made by the defendant corporation to show that at some of these times they were not operating the fac tory. While there are some slight contradictions of the witnesses of the complainant, yet on this point I am satisfied, beyond peradventure, that, on most of the dates they enumerated seeing or feeling the effect of the fumes, the conditions prevailed as described by them. Complaints have been made by the board of health, and the corporation has been notified to stop the nuisance, and it has also been indicted by the Bergen county grand jury for maintaining a nuisance upon its premises. There is no doubt in my mind that the defendant made several attempts to stop the nuisance, and, in fact, the testimony of some of its experts is that with the plant as now constructed a fume as described by the complainant and her witnesses could not come from it. Experts of the complainant who visited the plant since the improvements, however, state that they still find in the atmosphere the presence of these noxious fumes. I cannot believe that the large number of witnesses of the complainant willfully misstated facts to the court in this issue. they have noticed the fumes recently and since the improvements. The fact that the fume is not noticed by some of the neighbors does not prove that it is not a nuisance to others. Many of the complainant's witnesses before me have been long residents of the William E. Ellis, of Hackensack, and Wil-borough of Edgewater, and some for a conliam B. Gourley, of Patterson, for complain-siderable period before the factory of the ant. Robert H. McCarter and George W. C. Sinclair & Valentine Company was located McCarter, both of Newark, for defendant.

For these reasons, the judgment must be

reversed.

(85 N. J. Eq. 85)

HARRIGAN v. SINCLAIR & VALENTINE
CO. (No. 35/214.)

(Court of Chancery of New Jersey. Oct. 19,

1915.)

NUISANCE 3-USE OF PROPERTY-INJUNC-
TION-INK FACTORY.

An ink factory emitting noxious and unwholesome fumes, causing irritation of the

throat and sometimes vomiting spells, and rendering living in the vicinity unbearable, in respect to physical comfort, and destructive to health, in view of the situation of the dwelling of complainant along the Palisades, at the foot of which the factory was located, will be enjoin

ed as a nuisance.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 4, 5, 9-25; Dec. Dig. 3.]

Application by Ellen E. Harrigan for an injunction against Sinclair & Valentine Company. Application granted.

LEWIS, V. C. (orally). Counsel for the defendant having stated that they do not desire an appeal, I will briefly indicate my views so that there may be no further delay: The application is that an injunction may issue, restraining the Sinclair & Valentine Company, a corporation doing an ink business in the borough of Edgewater, from maintaining a nuisance upon its premises. The complainants, Mrs. Ellen E. Harrigan, and a large number of the residents of the place, property owners, allege that there issues from the defendant's property a noxious and unwholesome fume, which renders

They all say

there. The topographical conditions at Edgewater must be considered in dealing with this case. The dwellings of the complainant and of the larger part of the population of Edgewater are situated along the side of the Palisades, some distance up the mountainside. The place selected by the Sinclair & Valentine Company for its factory site is at the base of these cliffs. In locating here they must have had in view the fact that, when the prevailing wind was favorable, any odor or fume from their ground would necessarily affect the complainants in their homes.

In a long line of cases this court has dealt with situations similar to the one disclosed

(Court of Chancery of New Jersey. Oct. 19, frequent reference to a solicitor of a party,

WALKER, Ch. Lands limited over were sold in this matter, and the life tenant, who was the administratrix of the person who died seised, applies by petition to have certain moneys tolled out of the proceeds of sale to reimburse her for debts of the decedent paid by her, making the remaindermen re-signed her petition and whose names are inspondents.

3. TROVER AND CONVERSION
ERSHIP-EVIDENCE-INCOMPETENCY.

36, 37-OWN-1 and heard what was said when the parol
contract of sale was made. The trial judge
That we think was
overruled such offer.
erroneous.

In an action for damages for conversion, where the plaintiff's evidence tended to show ti tle in herself, and the defendant, by placing his defense on title in himself, puts in issue the ownership of the property, it is competent for the plaintiff to prove that by her purchase from a third party in possession she was a bona fide purchaser for value, and without notice of the defendant's claim, and this she may do by the testimony of witnesses who were present and heard what was said when the parol contract of

sale was made.

[Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. §§ 217-227; Dec. Dig. 36, 37.1

Appeal from District Court of Hoboken. Action by Mary Figoli against Samuel Halpern, trading, etc., as New York Furniture Company. From judgment for defendant, plaintiff appeals. Reversed, and new trial awarded.

The judgment below will be reversed, and a new trial awarded.

the ground that prosecutor did not have the reA municipal ordinance being attacked on quired notice of its intended passage, held, that the burden was on prosecutor to show that due notice was not given.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 837-840; Dec. Dig.

Argued June term, 1915, before GARRI-321.] SON, TRENCHARD, and BLACK, JJ.

Pierson & Schroeder, of Hoboken, for appellant. Morris Umansky, of Hoboken, for appellee.

TRENCHARD, J. The plaintiff sought to recover damages for the conversion by the defendant of several articles of household furniture taken by the defendant from the plaintiff's house.

[1] At the trial the plaintiff proved that, at the time of the conversion, she was in possession of the property. That was prima facie evidence of ownership. 38 Cyc. 2077.

[2] The plaintiff also testified that she bought the furniture of Frank De Bendito, whilst it was in his possession in another apartment of the plaintiff's house, and that she paid $50 therefor. The defendant then testified that, prior to the conversion, the plaintiff offered to purchase of him "some of the goods in question." Without any other evidence tending to show ownership or right of possession in the defendant, the learned trial judge seems to have found that the defendant had title or right of possession to all of the articles, and rendered judgment for the defendant. Clearly that was erroneous. The mere fact that the plaintiff had offered to purchase of the defendant some of the articles did not show, or tend to show, that the defendant had title or right of possession

to all of them.

2. EMINENT DOMAIN 14-STATUTES 94, 123-TITLE AND SUBJECT OF STATUTE-SPECIAL LAWS-TAKING PROPERTY FOR PRIVATE USE.

Act Feb. 24, 1915 (P. L. p. 31), a further supplement to the Borough Act (1 Comp. St. 1910, p. 223), is not unconstitutional: (a) As failing to express its object in the title; (b) or of municipalities; (c) or as authorizing the as a special law regulating the internal affairs taking of property for private use.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 54; Dec. Dig. 14; Statutes, Cent. Dig. §§ 103, 104, 176-183; Dec. Dig. 94, 123.]

Certiorari by James Henry against the Borough of Longport.

missed.

Donnelly Writ dis

Argued June term, 1915, before PARKER, MINTURN, and KALISCH, JJ.

Clarence L. Cole, of Atlantic City, for prosecutor. Harry Wootton, of Atlantic City, for defendant.

PARKER, J. The attack is on the validity of an ordinance passed by the board of commissioners of the borough of Longport on May 1, 1915, entitled:

"An ordinance to provide for the erection and maintenance of certain structures on the beach or ocean front of the borough of Longport pursuant to an act of the Legislature of the state of New Jersey, entitled a further supplement to an act entitled 'A general act relating to boroughs (Revision of 1897), approved April 24, 1897, approved February 23, 1915, by the construction, erection, building, rebuilding, repairing and keeping in repair, in order to protect property from encroachment by the sea, by sea walls, bulkheads, jetties, and other works and beach or ocean front of said borough, including structures for the protection thereof, along the the filling in and grading of land, around and about any sea wall, bulkhead, work or structure, necessary to maintain or preserve the same and providing for the payment of the cost of such work and for the repair and maintenance of said sea wall, bulkhead, jetty, work or structure; said structures to be constructed on land above or below high-water mark between the westerly line of Eleventh street and the easterly line of Minnesota avenue and oceanward of the norther

[3] Since the case must be tried again, it seems prudent to point out an error in the exclusion of evidence. As we have said, the plaintiff had produced evidence tending to show title in herself, and the defendant, by placing his defense on title in himself, put the ownership of the furniture in issue. It was therefore competent for the plaintiff to prove that her purchase from a third party in possession was a bona fide purchase for value and without notice of the defendant's claim. This the plaintiff offered to do by the testimony of witnesses who were presently line of Beach avenue."

[1] The first point made is that it does | boroughs bordering on the Atlantic Ocean or not appear that the "notice of intention" to arms thereof, and that such class is illusory pass said ordinance was published in the and offends against the prohibition of special manner required by law. We think it is suf-laws regulating the internal affairs of muficient for present purposes to say that this point is not supported by any of the reasons filed. The sixth reason is that "the prosecutor was without legal notice of the intention to introduce and pass said ordinance." But, as pointed out in Griffin v. Wanser, 57 N. J. Law, 535, 31 Atl. 222, this is very different from charging that the giving of legal notice of intention does not appear on the face of the return or otherwise in the case. What prosecutor asserts by the reason assigned is that such notice was not in fact given; and, as was held in Griffin v. Wanser, or plainly implied in the decision, the burden of proof of this fact is put on prosecutor who asserts it.

[2] The next and principal point of attack is that the act of 1915 is unconstitutional, for several reasons.

First, as failing to express its object in its title. It is a "further supplement" to the general borough act of 1897. We conceive that such a title is sufficient to support any legislation fairly comprehended in the main act. We think it has never been held that a mere supplement should express in its title the specific change or addition contemplated by the Legislature. The act in question is plainly restricted in its practical operation to boroughs bordering on the ocean

(as to which more will be said presently) and empowers them to protect their water front by jetties, bulkheads, and the like. It is pertinently pointed out by the defendant's counsel that this is directly in line with the authority conferred by the basic act, in section 28 (C. S., p. 240), to pass ordinances for "the protection of property from the encroachment of the sea"; and in section 33 "to provide suitable protection for property from encroachment by the sea, and to cause the cost of such improvement to be assessed upon the lands fronting on the

nicipalities. The contrary has been held in Bowker v. Wright, 54 N. J. Law, 130, 23 Atl. 116; Johnson v. Ocean City, 74 N. J. Law, 187, 64 Atl. 987; Seaside, etc., Co. v. Atlantic City, 74 N. J. Law, 178, 64 Atl. 1081; Seaside, etc., Co. v. Atlantic City, affirmed 76 N. J. Law, 819, 71 Atl. 912; Fishblatt v. Atlantic City, 78 N. J. Law, 134, 73 Atl. 125, affirmed 80 N. J. Law, 269, 78 Atl. 217; Bew V. Ventnor City, 81 N. J. Law, 207, 80 Atl. 28. The statutes considered in those cases related to cities bordering on the ocean, but it is, of course, quite immaterial whether a class of cities or of boroughs is in question.

It

Thirdly, that it does not appear that the property which is to be taken to make the desired protection, or part thereof, is to be taken for a public use, or that the proposed assessments will be for a public purpose. is manifest that the protection of the borough territory at large from the encroachment of the sea is a public purpose, at least lic places; and it is likewise for a public so far as relates to the streets and other pubpurpose in protecting the property of the citizens generally from such encroachment. Such protection is no new thing in this state. As early as 1788-we need not search back of marsh swamp land on tidewater were aufarther-the owners of a majority in acreage ing a specified course of procedure; and the thorized to combine and build dikes by taklands of all were liable to be assessed, those of unwilling owners as well, and to be taken and leased for long terms to pay the assessment. C. S. p. 3241. See Perrine v. Warner, 93 Atl. 713. In Coster v. Tide Water Co., 18 N. J. Eq. 54, 518, and in Kean v. Driggs Drainage Co., 45 N. J. Law, 91, there was no intimation that the general scheme of draining meadow composed of numerous tracts was essentially not a public use, but the decisions went upon the ground that in the particular case a private concern was to section so improved to the extent of the ben- benefit, and that such a concern was not enefit received." The legislation of a supple-titled to take advantage of the state's rights ment may be outside the scope of the title of the original act. Jersey City v. Speer, 77 N. J. Law, 34, 72 Atl. 448; Id., 79 N. J. Law, 598, 76 Atl. 1037. But that is a different matter, and not in this case. There are perhaps hundreds of acts entitled "An act concerning cities" or the like, and Anderson v. Camden, 58 N. J. Law, 515, 518, 33 Atl. 846, is one of the numerous decisions holding that such a title sufficiently expresses the object of the act. The discussion of this question by the present Chief Justice in Quigley v. Lehigh Valley R. R. Co., 80 N. J. Law, 486, 490, 491, 79 Atl. 458, quoted in Mount v. Howell, 85 N. J. Law, 487, 89 Atl. 977, sufficiently elucidates the position of our .courts on the subject.

of taxation or eminent domain. In the Coster Case, indeed, the Court of Errors and Appeals expressly held that, for the purpose of reclaiming large tracts, the rights of eminent domain and taxation may be employed. In that case the land was salt marsh cut up into irregular tracts under divers owners, and substantially devoid of highways or public places. It seems to be generally held that the construction of drains and levees by a public agency for the benefit of citizens at large is a public use. 15 Cyc. 594. And indeed we do not see how it could well be held otherwise.

The last point we reproduce in the language of prosecutor's brief: "Section 1 reads: "The council, or other gov Secondly, that the act creates a class of erning body of any borough

authorized, etc.' This would include boroughs | title to the extent of two-thirds in trust for not incorporated under the general borough act. then. It was not recorded until shortly beThere are such other boroughs as is well known fore this bill was filed. In 1909 the Doureto the court. There is nothing in the case to show that the defendant is a borough incorporat- doures loaned Lingg $2,000, and he stipued under the general borough act of 1897 so as lated in writing, indorsed upon the declarato take the benefit of the act of 1915." tion of trust, that the repayment should be If Longport be a borough organized under secured by his interest in the real estate dethe general act, the supplement is not inef- scribed therein. The mortgage of $6,000 fective as to boroughs within that act, and on the property, when it was purchased, had in fact Longport was incorporated under the been reduced to $3,000, and this, in 1912, general act. See Act March 7, 1898 (P. L. Lingg paid off and caused to be canceled. p. 50). If we are not permitted to take judi- At the same time he negotiated another cial notice of its incorporation, the prose- mortgage of $5,000 upon the land, and pockcutor is not entitled to make the point quot-eted the difference. In 1913 he executed to ed, because it is not embraced in any of his the defendants Humbert & Son a mortgage

reasons.

The writ will be dismissed.

(85 N. J. Eq. 89)

to secure his bond for the sum of $2,373.29, payable in two years, with interest at 54/10 per cent., payable semiannually. The mortgage was duly recorded. Lingg defaulted in

DOUREDOURE et al. v. HUMBERT et al. the payment of interest, and the Humberts

1. MORTGAGES 163 PRIORITY RECORD
-DECLARATION OF TRUST OF LANDS.
An unrecorded declaration of trust of lands
is void as against a subsequent mortgage given
by the trustee to a bona fide mortgagee for a
valuable consideration, not having notice there-
of, whose mortgage was first recorded.

[Ed. Note.-For other cases, see Mortgages,
Cent. Dig. §§ 368-379; Dec. Dig. 163.]
2. MORTGAGES 155 RECORDED MORTGAGE
-RIGHTS OF CREDITOR-UNRECORDED DEC-
LARATION OF TRUST-PRIORITIES.

Where a bond secured by mortgage is given in settlement of a debt, and in the novation the creditor waives his right of action in tort against the debtor and extends the time of payment of the debt, he is entitled to the status of a bona fide mortgagee for a valuable consideration, and the lien of his recorded mortgage is entitled to priority over an unrecorded declaration of trust, of which he had no notice.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 355-359; Dec. Dig. 155.]

Suit by Atlee Douredoure and others against Alfred Humbert and another, trading as Alfred Humbert & Son, and others. Bills dismissed as against the defendants named, and relief granted as against the other defendants.

Bourgeois & Coulcomb, of Atlantic City, for complainants. Godfrey, Giddings & Read, of Atlantic City, for defendants.

BACKES, V. C. In 1902 the Douredoures and the defendant Lingg purchased a tract of land in Atlantic City for $4,000, subject to a mortgage of $6,000. The Douredoures paid two-thirds and Lingg one-third of the consideration price. Title was taken in the name of Lingg. The riparian right was acquired from the state in the name of Lingg, the consideration for which was paid by the parties in the same proportion. At the time the land was bought Lingg executed to the Douredoures a declaration that he held the

started foreclosure proceedings in this court. After the final decree was entered and execution issued and delivered to the sheriff of Atlantic county, with instructions to advertise the premises for sale, the complainants recorded their declaration of trust, and filed this bill (March 2, 1915), alleging that the Humbert mortgage was taken with notice of their interest in the land and was given to secure a pre-existing debt, and that therefore it was subordinate to their equities, and they pray that it be restricted to the one-third interest of Lingg in the premises, and upon this interest that it be declared subject to the complainant's equitable lien arising out of the loan of $2,000, and also subject to their equitable lien on this interest, for such loss as they may have sustained by reason of the $5,000 mortgage placed upon the entire tract by Lingg. The bill further prays an injunction against the sheriff, and an accounting against Lingg, and that he be compelled to execute a bond and mortgage upon his estate in the premises to the complainants for the amount found to be due to them.

[1] The mischief in this case was made possible by the neglect of the complainants to record their deed of trust. The twentyfirst section of our Conveyance Act (2 C. S. p. 1541) provides for the recording of such documents for the purpose of giving notice to the world of their existence; and section 54 declares that;

"Every deed or instrument of the nature or of this act, shall, until duly recorded or lodged description set forth in the twenty-first section for record in the said clerk's office, be void and of no effect against subsequent judgment creditors without notice, and against all subsequent bona fide purchasers and mortgagees for valuable consideration, not having notice thereof, whose deed or mortgage shall have been first duly recorded."

That the Humberts are bona fide mortgagees, and that they took their mortgage without notice of the complainants' equities, and that it was first duly recorded, is not dis