possession of Senator McKee, who was the, upon him, was a special agent. Black v. counsel for Mr. Allee. The bond, together Shreve, 13 N. J. Eq. 456. Graham, of course, with another bond, and cash, amounting in knew of the condition imposed. He knew on all to the deficit, was turned over to the as- June 22d that the alleged contingency upon sociation by Senator McKee on June 9, 1906. which the bond was to be delivered had not On the trial of the action on the bond, the occurred, and never could occur; yet on that defense interposed was that the bond was day he went to McKee's office, got his deed placed in the hands of Senator McKee in es- given to secure him for his liability on the crow upon a condition which never occurred, bond, and said no word to McKee intimating and that there was no power in McKee to de- that he (McKee) had violated his instructions liver, as he did, the bond to the building and in delivering the bond to the building and loan association. What this condition was it loan association. He said nothing to the obis difficult to ascertain, as each of the plain- ligee to whom McKee had delivered the bond tiff's witnesses state it differently. Mr. Van to warn them that McKee had made the deNoordt, one of plaintiff's witnesses, said that livery without authority. The bond remainthe bond was signed on May 21st, in McKee's ed in the hands of the obligee for 14 months office; Allee, Graham, and the witness be- before action was begun upon it, and even ing present. He says that the bond was then there was no notice in the defendants' talked over, and that he (the witness) said: plea that the agent had violated the condi"Now it is understood that this bond is to be tions upon which it had been put into his held on the same condition as the Katz bond hands. A part of the assets of the debtor -that it is not to be delivered up if Mr. Al- had been turned over to Graham. While the lee is prosecuted." He says Mr. McKee said: building and loan association supposed that "Yes, they would go before the grand jury the delivery of the bond was perfect, they and say that it was all made good." He could rely upon it as the payment of Allee's said: "That bond will be kept here for use debt and so refrain from any resort to this when they carry out their agreement." Mr. or any other property, legally or equitably Graham testified that Mr. McKee said that belonging to Allee. In view of this conduct, the bond would be put in his safe and kept we think Graham had ratified the act of Mcthere if Allee was prosecuted and sent to Kee in delivering the bond to the plaintiffs. jail; that they would not use it. Allee was Chetwood v. Berriam, 39 N. J. Eq. 203, and indicted for his embezzlement on May 21, 1906, cases cited on page 210. the day the bond was executed. He was ar- The judgment is affirmed. raigned on May 25th and pleaded not guilty. He retracted his plea of not guilty and pleaded non vult on June 11th, and was sentenced on June 25th to one year at hard labor in the state prison. It appears that on the day the bond was signed, May 21st, Mr. Allee made a deed for some real estate to Mr. Graham to secure him against his liability upon this bond, and this deed was left with Senator McKee. It appears that on June 22d Graham went to Senator McKee and received this deed and put it upon record. Mr. Graham testified that he heard on that date that the bond had been given up by McKee, and he went and got the deed. He testified that after this he improved the property so deeded to him and paid interest upon the mortgage on the property, and that he never made any demand upon the building and loan association for the bond. This action was begun on July 25, 1907, and tried on February 3, 1908. A verdict was directed for the plaintiff upon the ground that Graham was estopped from setting up the nondelivery of the bond by his conduct of silence respecting its delivery, and taking from McKee the possession of the deed and thereafter holding it. We think that the direction of the verdict for the plaintiff was correct, whether the ground for this judicial action be styled estoppel in pais or ratification of authority of McKee to deliver up the bond to the association. McKee, if the condition was imposed (75 N. J. E. 415) WARREN et al. v. WARREN et al. (Court of Chancery of New Jersey. March 20, 1909.) 1. TRUSTS (§ 359*)-EXPRESS PRIVATE TRUSTS -CONSTRUCTION AND ENFORCEMENT-JURISDICTION OF EQUITY. The general jurisdiction of equity over express private trusts in land necessarily includes the power to construe and enforce them. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 565; Dec. Dig. § 359.*1 2. TRUSTS (§ 345*)-CONSTRUCTION AND ENFORCEMENT-RIGHT OF ACTION. der a trust in land, but claiming the legal title A person claiming no rights or duties unto the land, cannot invoke the aid of equity for the construction or execution of the trust. [Ed. Note.-For other cases, see Trusts, Dec. Dig. § 345.*] 3. QUIETING TITLE (§ 13*)-PROPERTY SUB JECT TO ACTION-POSSESSION OF DEFENDANT. A bill to remove a cloud from complainant's title to land will not lie, where the estate asserted is a purely legal one and defendants are in possession. tle, Cent. Dig. § 8; Dec. Dig. § 13.*] Bill by John H. Warren and others against demurrer. vised. The bill seeks an ascertainment by this court whether a certain trust created by a deed of trust referred to in the bill now ex- tive interests of the several heirs of said ists, and prays that if the trust is found to exist it may be construed and enforced. Defendants Robert D. Warren and Caroline C. Warren have demurred to the bill, and specified as grounds of demurrer the existence of an adequate remedy at law and want of equitable jurisdiction over the subject-matter disclosed by the bill. Charles E. Hendrickson, Jr., for complainants. J. Lefferts Conard and Gilbert Collins, for defendants. LEAMING, V. C. (after stating the facts as above). The general jurisdiction of a court of equity over express private trusts of the nature of the trust set forth in the bill necessarily includes the power to construe and enforce such trusts. See Pomeroy's Eq. Jur. §§ 153, 158, 219. But I am unable to find any reason or authority which supports the privilege of a person who asserts no rights or duties under a trust to invoke the aid of a court of equity for either its con Richard Warren, deceased, can only be fixed and determined by your honor construing the terms and effect of said deed of trust. * That the said Robert D. Warren and Mary Warren Wright make various objections to your orators' interpretation of the terms of said deed of trust and of the effect thereof, and refuse to your orators the posThe deed of trust referred to in the bill session and enjoyment of their respective unbears date March 16, 1844. By it Richard divided interest in the premises, and of the Warren, in consideration of natural love and rents, issues, and profits thereof, excluding affection for his wife, Susan D. Warren, and them therefrom, and it is claimed by the said his children, Richard H. Warren, George W. Robert D. Warren and Mary Warren Wright Warren, William W. Warren, Emeline War- that they are the owners in fee of said ren, John H. Warren, Robert D. Warren, and premises, by means whereof your orators Mary Warren, and the further consideration | cannot get possession of their rights without of 50 cents, conveyed to Frederick Knighton assistance of this honorable court." certain real estate, in trust "that the said Frederick Knighton, his heirs and assigns, shall and will permit the said Susan D. War. ren, Richard H. Warren, George W. Warren, Emeline Warren, John H. Warren, William W. Warren, Robert D. Warren and Mary Warren, and the survivors of them, to possess and enjoy the same and receive the rents, issues and profits thereof and to rent the same to any tenant or tenants for their own separate use and the use of the survivors of them." After the execution of the trust the several beneficiaries named therein took possession of the real estate, and as the beneficiaries have since from time to time died, the survivors have continued to possess the premises and to receive the rents, issues, and prof-struction or execution. Complainants assert its thereof, and at this time only two of the beneficiaries named in the trust deed are alive, viz., Robert D. Warren and Mary Warren Wright, who continue to possess and en-titled to any rights of the cestuis que trustent joy the premises. Complainants are grand- as such, or to have become entitled to any children of settlor, and all of the complain- rights of the deceased trustee, or to have be ants are children of beneficiaries named in come charged with the burden of the trust the deed of trust who have since died. There which was imposed upon the deceased trusare no words of limitation in the said trust tee, but allege that as heirs at law of Richard deed. The settlor died February 12, 1862. Warren, their grandfather, they are present Frederick Knighton, the trustee named in owners in fee of an undivided part of the the deed of trust, has since died, and no trus- premises, and that defendants, under the tee has been appointed in his place. The bill claim that they are owners in fee of the enset forth: "That the rights of the said Rob- tire premises, exclude complainants from posert D. Warren and Mary Warren Wright, and session. The real controversy thus presented of your orators and the other children of the involves a claim upon the part of complaindeceased children of your orators' grand- ants to the legal title to the premises in disfather, Richard Warren, should be ascer- pute, and not the claim of a cestui que trust tained and determined, in order to deter- or trustee for the enforcement of rights unmine what are their respective present rights der a trust, or for the ascertainment of rights and interests under the said trust deed, be- or duties arising from the trust. Where the cause the said Robert D. Warren and Mary jurisdiction of a court of equity to construe Warren Wright claim and pretend that a wills has been regarded as simply an incifee simple passed to them by the said trust dent of the general jurisdiction over trusts, deed, and your orators charge that the said complainants appear to have been uniformly Robert D. Warren and Mary Warren Wright required to assert rights or duties arising unhave thereunder only an estate for life in der a trust created by the will to entitle them an undivided one-seventh part of said prem- to invoke the aid of a court of equity in the ises, and that your orators as such heirs at construction of a will. Torrey v. Torrey, 55 law of said Richard Warren, deceased, have N. J. Eq. 410, 36 Atl. 1084; Hayday v. Haynow a present interest in fee in an undivided day (N. J. Ch.) 39 Atl. 373; Bailey v. Briggs, part of said premises, but that such respec-56 N. Y. 407; Chipman v. Montgomery, 63 no interests under the trust referred to in the bill, either as cestuis que trustent or as trustees. They do not claim to have become en N. Y. 221. The situation presented by the day, the count for entering, and the count present bill is analogous. for grand larceny. The conviction is now beIt is also manifest that the bill cannot be fore us on writ of error without any certifimaintained as a bill to remove a cloud from cate of the judge returning the entire prothe title of complainants, or as a statutory ceedings under section 136 of the criminal bill to quiet title; for the estate asserted by procedure act of June 14, 1898 (P. L. p. 915), complainants is, as already stated, a purely but on strict bill of exceptions, with a genlegal estate, and defendants are in possession.eral exception, as permitted by section 140 of I will advise an order sustaining the de the same act, to the charge of the court, and murrer. (78 N. J. L. 208) STATE v. TAPACK. (Supreme Court of New Jersey. May 6, 1909.) 1. CRIMINAL LAW (§ 775*)-ALIBI-INSTRUC TIONS. Upon the trial of an indictment, a charge to the jury that the proof of an alibi must reasonably exclude the possibility of the defendant's presence, and that the defendant must satisfy the jury whether he was there or not at the time the alleged crime was committed, is erroneous; the rule being that, if the testimony creates such a degree of uncertainty as to defendant's whereabouts that the jury are not satisfied beyond a reasonable doubt of his guilt, he is entitled to an acquittal. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1834; Dec. Dig. § 775.*] 2. CRIMINAL LAW (§ 823*)-INSTRUCTIONS— ALIBI-BURDEN OF PROOF. Such erroneous instruction is not cured by general instructions as to reasonable doubt and burden of proof that correctly state the law on those subjects. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1994; Dec. Dig. § 823.*] (Syllabus by the Court.) Error to Court of Quarter Sessions, Passaic County. Louis Tapack was convicted of burglary, and brings error. Reversed. Argued November term, 1908, before GARRISON, PARKER, and VOORHEES, JJ. Ward & McGinnis, for plaintiff in error. Eugene Emley, Prosecutor of the Pleas, for the State. PARKER, J. Richard Coyle and Louis Tapack were indicted by the grand jury of Passaic county jointly upon five counts: The first, for breaking and entering by night a certain silk mill named in the indictment; the second, for the same by day; the third, for entry without breaking; the fourth, for grand larceny of 700 pounds of raw silk; and, the fifth, for receiving stolen goods. Coyle turned state's evidence and was the principal witness against Tapack, testifying that the latter had incited him to commit the crime in the mill where he was or had been employed, and that they two broke in and stole the silk, which Tapack subsequently took away to dispose of. The first count was withdrawn from the jury by the court, and the last one ignored, so that the general verdict of guilty, which was rendered, was predicated on the count for breaking and entering by specific assignments of error thereunder to the portions of the charge claimed to be erroneous, in accordance with the established practice. State v. MacQueen, 69 N. J. Law, 476, 529, 55 Atl. 45. The defense was an alibi, and it was only in the portion of the charge bearing on this defense that we find any injurious error; but on this account there must be a reversal. The court charged on this point: "Tapack undertakes to prove what in law is called an alibi. Now, gentlemen of the jury, what is the legal proposition in regard to an alibi? The courts say that an alibi must be viewed with scrutiny, with care, and I think the language of one of the decisions is that it must be viewed with 'rigid scrutiny'; yet, of course, when it is made out, it is quite sufficient to excuse and to acquit the defendant. But the courts say that you must look at it with care and caution, and the courts further say that the proof must reasonably exclude the possibility of the presence of the accused reasonably exclude the possibility of his presence. So you see, gentlemen of the jury, it appears from this legal proposition as if the defendant should satisfy you as to time and place sufficiently in regard to this ques tion of alibi whether or not he was there at the time when the robbery was committed." And again, after a comment on the testimony: "Now, gentlemen of the jury, you heard a number of witnesses produced on the part of the defendant, and you have a right to ask yourselves the question whether their testimony comes up to the requirements of that legal proposition, that the proof of an alibi should reasonably exclude the possibility of the presence of the defendant at the time and at the place." In Sherlock v. State, 60 N. J. Law, 31, 37 Atl. 435, it was held by this court to be erroneous to charge the jury that the defendant must prove his alibi by preponderance of evidence, and that, if the testimony created such a degree of uncertainty as to defendant's whereabouts that the jury were not satisfied beyond a reasonable doubt of his guilt, he was entitled to an acquittal. This decision was approved and followed in the case already cited of State v. MacQueen, 69 N. J. Law, 519, at page 530, 55 Atl. 45; but the portions of the charge above quoted recognize no such right on the part of the defendant. They went at least as far as to require proof by preponderance of evidence of his absence from the scene of the crime, and we think the requirement that the proof must "reasonably exclude the possibility" of his presence called for even a greater degree of certainty in the minds of the jury. In any event, the instruction was clearly erroneous in view of the decisions just cited. Under a general exception to the charge and the assignment of a portion thereof for error, it becomes the duty of the court of review to examine the whole charge to see if the error was prejudicial to the accused. State v. Zdanowicz, 69 N. J. Law, 619, 625, 55 Atl. 743. Our examination of this charge as a whole leads us to the conclusion that the error in question was prejudicial and was not cured by anything contained in the rest of the charge. The court charged general ly on the subject of reasonable doubt, but without specific application of the doctrine to the question of alibi, and, after concluding, said, in reply to a request by defendant's attorney for a charge as to burden of proof, "the burden of proof is upon the state to prove all the essential facts necessary to constitute the crime, and the burden continues from the beginning to the end and is never shifted." But, even in view of these instructions, it cannot be said that the jury must have regarded the previous instructions as to alibi as having been modified or withdrawn. The probability would seem to be that they paid heed rather to the specific instructions which were erroneous, than to the general ones, which were correct. The rule is well settled that an erroneous instruction followed or accompanied by a correct one is not cured by the latter, unless it is also expressly withdrawn, as the jury is left at liberty to adopt either, and it cannot be said which one was in fact adopted. Burnett v. State, 60 N. J. Law, 255, 37 Atl. 622; State v. Fitzgerald, 72 Vt. 142, 47 Atl. 403; 12 Cyc. 656, 657. The judgment of conviction will therefore be reversed, and a venire de novo awarded. (75 N. J. E. 295) 2. INJUNCTION (§ 144*)-RECEIVERS (§ 36*)-DEFECTIVE BILL. must fail on demurrer, the court cannot grant Where a bill is so fatally defective that it provisional relief thereon. [Ed. Note.-For other cases, see Injunction, Cent. Dig. § 316; Dec. Dig. § 144;* Receivers, Cent. Dig. § 61; Dec. Dig. § 36.*] Appeal from Court of Chancery. Suit by Samuel Rodman and others against the Manganese Steel Safe Company. Decree dismissing the bill and complainants appeal. Affirmed. Chancellor Howell, referred to in the opinion The following are the conclusions of Vice of the Court of Errors and Appeals: "The bill in this case contains two wholly inconsistent causes of action against the same defendant, the Manganese Steel Safe Company. It alleges, for one cause of action, that this company is making, and is ter which will provide for an increase of its about to perfect, an amendment to its charauthorized capital stock, and that it proposes to use this increase for the purpose of making an illegal agreement with William and Moses Mosler for the conduct by them of the business of the Manganese Steel Safe Company. By this agreement, as appears in Schedule B attached to the bill, Messrs. Moses Mosler and William Mosler are to assume the management and control of the business of the Manganese Steel Safe Company, and guarantee to the stockholders who shall assent to the proposed plan certain dividends upon their capital stock, and that the new common stock which it is now attempted to create will be issued and delivered to the Messrs. Mosler under such conditions as shall guarantee the full performance of the contract, and that their management and control of the defendant's affairs will be upon a basis which practically amounts to a lease of the company. As to this part of the bill it prays that an injunction may issue to restrain the defendant from (a) carrying into effect any change in the stock issues of the defendant corporation, and espe RODMAN et al. v. MANGANESE STEEL cially from carrying into effect the proposed SAFE CO. change outlined in a circular letter, dated (Court of Errors and Appeals of New Jersey. September 18, 1907, and marked 'Exhibit B'; March 1, 1909.) and (b) from entering into or consummating any agreement looking to a lease of the defendant corporation, and particularly from consummating the proposed agreement with the Moslers outlined in a circular letter dated April 10, 1907, and marked 'Exhibit A.' The bill also alleges as a distinct cause A bill to restrain the amendment of the charter of a corporation to provide for an increase of its authorized capital, to be used to make an alleged illegal agreement with certain others for the management of the corporation, and also to obtain an adjudication of insolvency of action that the corporation is insolvent. for the appointment of a receiver, for an injunction against the exercise of any of its franchises, and the continuance of its business, stated two inconsistent causes of action which could not be heard according to the same practice, and was therefore demurrable for multi fariousness. [Ed. Note.-For other cases, see Equity, Cent. Dig. 88 341, 357; Dec. Dig. § 148.*] It contains the usual prayer for an adjudication of insolvency, for the appointment of a receiver to wind up its affairs, and for an injunction against the exercise by it of any of its franchises, the receipt and disbursement of moneys, and the continuation of its business. that I am at liberty to take that course in this case. At the time the bill was presented and filed I made a suggestion to counsel that if suitable objection were made on the return day of the order to show cause, he might find it necessary to amend his bill and confine it to one only of the causes of action. On the return day objection was made on behalf of the defendant that the bill was multifarious on the grounds above stated. It was urged with great force as a preliminary defense, for the purpose of convincing the court, that the bill was plainly demurrable upon those grounds. The complainant, even then, might have elected to pursue either the one remedy or the other. He neglected to do so, and in his brief still argues that the corporation is insolvent; that the bill sets up a proposed illegal change in the stock issues merely for the purpose of hiding the insolvency, and urging that the prayer for the appointment of a receiver is a part of the remedy that ought to be administered under the general equity powers of the court. I do not agree with complainants' counsel in this view of the case. I think, as I have already indicated, that the bill is plainly multifarious, and on that account would be demurrable, and upon the argument would be dismissed, unless leave to amend were granted. "A reading of the case of Pierce v. Old Do- | action against the defendant. I do not feel minion Smelting Company, 67 N. J. Eq. 399, 58 Atl. 319, will disclose the serious objections that exist to such a combination of causes of action. The first one stated is one which arises under the general equity powers of the court. In the ordinary course of practice in such cases the court may, if the situation requires it, enjoin the proposed action until the final hearing. The defendant may be required by subpoena to file an answer within the time specified in the statute, and in proper course the case may be brought on for final hearing on bill, answer, replication, and proofs. This proceeding is formal and methodical, and is conducted in accordance with the course and practice of the ordinary equity suit as it is known in our jurisprudence. In the ordinary course of events a final decree might be reached in the course of several months. The cause of action secondly mentioned is of an entirely distinct and separate character. As to this the court may likewise issue its injunction, and may appoint a receiver. If a defense is interposed, the court must hear the case in a summary way on such affidavits, proofs, and allegations as may be offered on behalf of the parties. No replication is required, and the parties are brought in by order. If upon such summary inquiry it appears to the court that the corporation has become insolvent, and is not about to resume its business in a short time thereafter with safety to the public and advantage to the stockholders, it may make its final decree providing for an injunction to restrain the exercise of its franchises, the collection of its debts, and the paying out of money until the court shall otherwise order. This proceeding, being a summary one, must be heard, not in accordance with the usual course and practice of the court, but summarily, in obedience to the statute which creates the remedy. It is manifest that these two proceedings cannot stand side by side. The practice is different; the issues are different; the evidence is different; and in the one case the decree is made for the benefit of the complainant, and in the other for the benefit of the creditors, stockholders, and the public generally. "As Vice Chancellor Stevenson said in the case above quoted: 'Even when no objection has been made to such misjoinder, the court for its own protection ought not to allow such an inconsistent, inconvenient, and confusing jumble of remediable proceedings.' In that case no objection was made, on behalf of the defendant corporation, to the joinder of the two causes of action, and the Vice Chancellor then put it to the complainant to elect which of the two causes of action he would pursue. Apparently he elected to put his case on the cause of action made under the general equity jurisdiction of the court, and the Vice Chancellor disregarded that portion of the "When it appears that a bill is so fatally defective as that it must fail on demurrer, can the court grant any provisional relief? Manifestly not. The rules regulating the issue of injunctions are well settled in this jurisdiction, and I need only say that among the other requirements is the one that the complainant's right must be clear upon the law and the facts. I come to this conclusion with considerable reluctance. The affidavits presented on behalf of the defendant are remarkable rather for what they conceal than for what they disclose. I am without information as to the agreement which it is proposed to make with the Messrs. Mosler; nor is there any adequate explanation of the manner in which the increased stock is to be used in connection with it. "The statement made by counsel that the defendant company should not be required to disclose details of its affairs and its contemplated action for the reason that its business operations would then become known to its competitors, who would use the information to its detriment, is entirely specious, because if the complainant proceed with this suit, in the absense of an injunction and receiver, defendant will be obliged to make full disclosure by its answer of the matters alleged against it in the bill. And if the complainant shall succeed on final hearing, he will be practically in the same situation in which he now is, because whatever is done by the defendant lis pendens is done subject to such decree as shall be finally made in |