W. S. Angleman, for appellants. John R. why the prayer of the petition should not be Hardin, for respondent, PER CURIAM. The order is affirmed for the reasons given by Vice Chancellor Howell. The suggestion that the decree of insolvency and for an injunction in statutory proceedings against an insolvent corporation is a final decree was not necessary for the decision of the cause. It seems to be in conflict with the opinion expressed for this court by Mr. Justice Van Syckel in Franklin Electric Light Co. v. Ft. Wayne Electric Corporation, 58 N. J. Eq. 543, 43 Atl. 650. Whether the explanation of that opinion contained in Vice Chancellor Stevenson's opinion in Pierce v. Old Dominion Copper Mining & Smelting Co., 67 N. J. Eq. 399, 58 Atl. 319, at page 326, is correct or not is a question we need not now consider. (75 N. J. E. 439) MOYER v. MOYER. granted. On October 12th the respondent appeared by counsel and sought a continuance upon the ground that the time which had elapsed between the service of the order and the return day was so short that counsel had had no opportunity to prepare for the defense. The motion was thereupon continued until October 15th. On October 15th the respondent appeared in court with her counsel and brought with her the child. Counsel announced that they would file no answer nor submit any answering affidavits, but were ready to go to hearing on the petition alone. The petitioner sought leave to examine witnesses orally before the court for the purpose of showing the fitness and the faculties of the father and his family, consisting of his mother and his sister, for caring for the child. The facts stated in the affidavits submitted to the court are therefore without denial. I take it that this position of the respondent is a deliberate one, and is assumed by counsel after a careful examination (Court of Chancery of New Jersey. March 12, into the facts. DIVORCE (§ 298*)-CUSTODY OF CHILD. [Ed. Note. For other cases, see Divorce, Dec. Dig. § 298.*] The statements relate to two matters: (1) The main question in the original suit, viz., infidelity of the wife; and (2) her actions toward her child, which are undoubtedly meant by the petitioner to show to the court that the mother has little or no affection for the child. In the ordinary case which is contested upon the facts-that is to say, upon facts adduced by the petitioner and facts in denial thereof adduced by the respondent-I would consider it my duty to pass by the charges of infidelity without doing more than noticing that there were such charges and Alfred F. Skinner, for petitioner. Sher-recriminations, if any, and not undertake to rerd Depue and Frank P. McDermott, for de- decide this question on a collateral inquiry, fendant. Action for divorce by Albert Moyer against Flora Howard Moyer, wherein plaintiff petitions for the custody of the minor child of the parties. Custody of child committed to its grandmother. HOWELL, V. C. The proceeding now be fore the court is an application made in a pending divorce suit for the custody of the only child of the marriage. This child Margaret is 7 years 8 months of age. She is now in the custody of her mother, who is the defendant in the divorce case and who is therein charged with having committed adultery. The petition for divorce was filed in August of the present year. The citation was served upon the defendant on October 2d. The time for answering has not yet expired, and the respondent has not yet filed an answer. The petition for custody of the child alleges the unfitness of the mother as her custodian, and prays that the custody may be given to the petitioner, the father, pending the decision of the main question between them. The allegations of unfitness of the wife contained in this petition are supported by affidavits tending to show the truth of the allegations. On the filing of the petition on October 9th an order was made requiring the defendant to show cause on October 12th or allow the judicial mind to be influenced one way or the other by them. The rule is very well expressed by Sir Creswell Creswell in the case of Ryder v. Ryder, 2 Sw. & Tr. 225, where he said: "The duty of the court was to look at all the actual circumstances of the present application, the age of the children, the position in which they find themselves in relation to other members of the family, the fact that a suit is pending between the parents in which such and such charges are made on both sides, but not to attempt to ascertain the truth or falsehood of the charges." In that case, however, there occurred the very situation of which I speak. The case was for divorce, and contained cross-petitions, each party alleging that the other had committed a matrimonial offense, so that the question of guilt was necessarily an open matter before the court, and could not be decided without impinging upon the function of the final hearing of the cause. How different is this case on that point? Here the allegations are without denial. The wife is accused of startling acts of infidelity, and she comes in court with eminent counsel and stands mute. Can this happen in the presence of any court, and the judgment of the court not be affected by it? She might have denied the allegations of the original petition by a due and formal answer in the original cause, although she was not obliged to do it until the last day for answering was about to expire. She might have denied it by a simple affidavit in response to the secondary petition. At least, her counsel might have denied the allegations orally. But even then she and they would have been confronted by her letters, copies of which are annexed to the petition, which are a virtual admission of her guilt. This seems to be the present aspect of the case. The final hearing may develop other facts and other circumstances which will conclusively show the innocence of the defendant. I am speaking only of the present application, and the facts that are now put before me to influence my decision. I hesitate to place my decision of this motion upon the ground just suggested, because it may seem like a prejudication of the main cause of action. I turn to the second element that I have mentioned, and I think that I find there sufficient facts to justify me in declaring this woman unfit to have the present custody of her child. It must be remembered that the time for answering in the original cause has not yet expired, and that the present appearances are that the litigation between these parties will be sharp and long. If the case shall be heard in this court and reviewed in the Court of Appeals, at least a year and a half must elapse before a final decree can be entered, and, considering the delays of litigation, as we all know them to be, it would not be surprising if the lapse of time would extend to two years. By that time this child will be nearly ten years of age, of sufficient years to absorb from her custodian habits of life and conversation which will last her to her grave. And it is this influence to which this susceptible child is exposed that forces itself most strongly on my mind. In 1904, when this child was between three and four years of age, occurred the first act of misconduct which is alleged in the petition. It continued into the year 1905, and caused an estrangement between the husband and wife, and arose out of matters for which the wife solely, as appears by the facts set out in the petition, is responsible. In May, 1907, the defendant went abroad without her husband, leaving her child, then about six years of age, in the care of the petitioner and his family. She did not return until the month of September, 1907, and from that time until the early part of the month of December of the same year was with her child and the child's grandmother at Newton. She made frequent trips from there to New York, and sometimes stayed over night, for what purpose, of course, she does not explain; but during the first week in December she again embarked for Europe from the port of Boston in company with a man named Kip, leaving behind her her husband and her child, and traveling about Europe with this man Kip, and not returning to her husband and child until about the middle of August of the following year, 1908. At that time the child was in the custody of the father by her consent-in fact, by her abandonment of it-and was specially cared for by the grandmother. From these and cognate facts appearing in the affidavits, and without at this time elaborating the repulsive details, I conclude that this defendant is not a fit person to have the custody of this child pending the final inquiry into her guilt or innocence. She appears not to have that high motive in life, or that stability of character, or that idealistic affection which we attribute to true womanhood and true motherhood. She appears, in fact, to have very little affection for her child. No woman with any love in her heart could abandon an infant of such tender age to the care of any one, even the father, for eight months at a stretch without some compunctions, which she does not appear to have had. I will commit the custody of this child, pending the present suit, to Mrs. Charles Moyer, its grandmother. Mrs. Moyer, the grandmother, must resume her actual residence in this the state of her domicile, and must not under any circumstances, without the leave of the court, remove the child from this jurisdiction. It was quite satisfactorily proved in the case that the petitioner, Mr. Moyer, was a fit and proper person to whom the custody of his child might be safely committed; but I prefer that the grandmother should be the direct representative of the court in this matter, and I therefore commit the custody of the child to her. The order will make provision for access to the child by both the father and the mother, and unless counsel can agree upon such a provision I will determine what it shall be at the time of the settlement of the decree. (78 N. J. L. 302) BOROUGH OF KENILWORTH v. BOARD OF EQUALIZATION OF TAXES et al. (Supreme Court of New Jersey. April 22, 1909.) -- 1. TAXATION (§ 461*) — ASSESSMENTS - CONFIRMATION-APPEAL BY BOROUGH. tion of the assessment of ratables as made by Where a borough consents to the confirmaits assessor before the county board of taxation, and such assessment is thereafter confirmed, no controversy exists, and the borough cannot be said to be aggrieved by the action of the county board so as to justify an appeal to the state board. [Ed. Note. For other cases, see Taxation, Dec. Dig. § 461.*] This court will not review the action of the state board of equalization in dismissing an appeal, where the action appealed from was consented to by the petitioner. [Ed. Note.-For other cases, see Taxation, Dec. Dig. § 493.*] (Syllabus by the Court.) 2. TAXATION (§ 493*)-ASSESSMENT-REVIEW, and the consequent erroneous apportionment" BY COURT. of the borough's state school and county tax. The state board having dismissed the appeal, the matter is now here upon writ of certiorari intended to review that dismissal. The appeal is based upon section 10 of the act of 1906 (P. L. 1906, p. 216), which authorizes the state board to review the action or determination of any county board. The difficulty, however, with the appeal is that there was no controversy before the county board to review, for the record here shows that the assessor's assessment was presented to the county board, and there, after full consideration, ratified and confirmed with the consent of the borough officials. Having thus consented to the confirmation of its Certiorari by the Borough of Kenilworth to the Board of Equalization of Taxes and others. Writ dismissed. Argued February term, 1909, before REED, TRENCHARD, and MINTURN, JJ. MacLear & Fort, for prosecutor. W. R. Codington, for County Board. When, by the consent of parties, the matter has been settled without the intervention of fraud or other nullifying element, it has been uniformly held that the maxim "Consensus tollit errorem" applies, and precludes further controversy, because "interest republicæ ut sit finis litium." Brown's Legal Maxims, p. 129. The act of 1905 creating the state board (P. L. 1905, p. 123), and treating of a cognate subject, must be read in pari materia with the act of 1906, which by its seventh section limits the power of review by the state board to a "taxpayer feeling himself aggrieved," or to a "taxing district aggrieved by the action of the county board." It is not perceived how this borough can bring itself within the manifest meaning of this legislation, for beyond peradventure, until by its benevolence it found itself in this dilemma, it urged no controversy, and it entered no appeal to the action of the county board in confirming this assessment. On the contrary, it indicated as far as municipal assent by officials in such cases can indicate, that the assessment as fixed and confirmed by the county board met with its approval. With this status before us, and mindful of the fact that the adjustment of the assessments of the taxing district contemplated by this legislative act is necessary for the prop MINTURN, J. The assessor of the bor-own assessment by the county board, it is not ough of Kenilworth, having made his as- perceived how the petitioner can be said to sessment, presented his duplicate in due time be "aggrieved," or that "any controversy" to the county board for revision and cor- can be said to exist which can be the subrection. That board, in conjunction with ject-matter for determination by the state the mayor of the borough, the assessor, and board. other borough officials, conferred, and the assessment was agreed upon as correct. Thereafter a number of taxpayers, feeling themselves aggrieved by assessments against their properties, appealed to the county board for reductions; but before any action had been taken by that board the same appellants presented their claims to the state board of equalization of taxes and succeeded, with the consent of the borough, according to the record here presented, and without any notice to the county board, in obtaining extensive and radical reductions. Thus: Mary L. Ash, whose real estate was assessed at $1,800, was reduced to $180; Edward A. Lee, assessed at $1,750, reduced to $1,000; John N. Jackson, assessed at $1,000, reduced to $300; John T. Kanane, assessed at $1,600, reduced to $500; Charles Frost, assessed at $4,800, reduced to $3,500; Kenilworth Realty Corporation, assessed at $433,462, reduced to $183,832; William McLean, assessed at $13,270, reduced to $6,300. The effect of these reductions, aggregating over $270,000, was to reduce the original taxable assessment of real estate, as compiled by the borough assessor and confirmed by the county board, by about one-third. Having thus practically given away its assets, and, Lear-like, divided its kingdom, it finds itself confronted by the threatening storm and tempests of finan-er fiscal administration of state and county cial embarrassment. In the language of its petition as contained in this record, it finds itself "without necessary resources to carry on the business of its municipal affairs," and confronted with a condition which "would inevitably cause it to become bankrupt." Thus confronted, it presented a petition to the state board of equalization of taxes reciting these facts and praying that board "to review the action of the Union county board of taxation in affirming the erroneous total valuation of real estate within the borough adjusted as they are on the basis of the original assessment, we are constrained to conclude that this assessment should not be disturbed. The impolicy of such intervention is adverted to and discussed in two cases in this court. Ross v. Walton, 63 N. J. Law, 435, 44 Atl. 430, and Colonial Trust Co. v. Scheffey (N. J. Sup.) 69 Atl. 455. It is not necessary for the purpose of this adjudication to discuss the legality of the action of the state board in acting in the first instance upon the appeals which were pend ing undetermined before the county board, but we find no legislation applicable to elther of these boards which authorizes such procedure. Not even the consent of the borough, as given in this instance, can suffice to confer jurisdiction upon a statutory tribunal erected, as was this, for a specific purpose with limited powers. Cregar v. Township Com. of Lebannon, 70 N. J. Law, 598, 57 Atl. 129; Cooley, Const. Lim. 199. On the contrary, it is plain that the legislative intent was to confer upon the county board the power of hearing the appeal of the taxpayer or the taxpaying district in the first instance, and finally to authorize an appeal to the state board from the determination of the county board. Sections 9 and 10, p. 216, Laws 1906; section 7, p. 127, Laws 1905, ubi supra. Such power to hear appeals in the first instance was held by this court not to inhere in the state board of taxation, the predecessor of the present state board, and it is not apparent that the existing legislation has worked any change in that respect. Cregar v. Lebannon, 70 N. J. Law, 598, 57 Atl. 129. Nor is it perceived that, by dismissing this petition after hearing the borough and the other taxing districts of the county, the state board violated any principle or rule of law, or invaded any fundamental legal right applicable to this borough. Such a consideration seems under our adjudications to afford the basis or test for the intervention of this court upon certiorari. Elizabeth v. N. J. Jockey Club, 63 N. J. Law, 515, 44 Atl. 207. As was said by this court in Colonial Trust Co. v. Scheffey, ubi supra: "The legislative policy in the creation of these tribunals can be sustained by the courts and the public expense involved therein justified only by our refusing to allow discretionary writs, for the sole purpose of reviewing tax valuations where no legal principle is at stake." or an original suit, require the claimants to interplead, applies only to instances in which goods have been stored with warehousemen and been issued therefor. warehouse receipts conforming to the act have [Ed. Note.-For other cases, see Interpleader, Cent. Dig. § 19; Dec. Dig. § 11.*] 3. INTERPLEADER (§ 11*) CONFLICTING CLAIMS TO PROPERTY IN WAREHOUSE-FORM OF RECEIPT. ing to contain a statement whether the goods A warehouse receipt issued for goods, failreceived would be delivered to the bearer, or to a specified person, or to a specified person or his order, and also failing to state the rate of storage charges, did not conform to the receipt required by Act May 7, 1907 (P. L. 1907, p. 341), regulating warehousemen, and was therefore insufficient to authorize the warehousemen to interplead adverse claimants under such act. Cent. Dig. § 19; Dec. Dig. § 11.*] [Ed. Note. For other cases, see Interpleader, 4. WAREHOUSEMEN (§ 35*) STATUTES. The penalty imposed by Act May 7, 1907 (P. L. 1907, p. 342) § 2, regulating the issuance of warehouse receipts, for breach of such sec tion, relates only to negotiable receipts. REGULATION [Ed. Note.-For other cases, see Warehousemen, Cent. Dig. § 86; Dec. Dig. § 35.*] Bill by the New Jersey Title Guarantee & Trust Company against Joseph M. Rector and another. On demurrer by defendant Joseph M. Rector for want of facts. Sustained. The bill filed by complainant corporation alleges that it is engaged in the business of warehousing goods and chattels for hire, and seeks a decree to compel two adverse claimants to certain chattels heretofore deposited with complainant for storage to interplead and settle their respective rights to the chattels so deposited. Collins & Corbin, for complainant. Marshall Van Winkle, for defendant Joseph M. Rector. LEAMING, V. C. In the case of First Nat. For these reasons we conclude that the Bank of Morristown v. Bininger, 26 N. J. Eq. writ should be dismissed, with costs. (75 N. J. E. 423) 345, it was determined that this court cannot at the instance of a bailee compel strangers to interplead with each other, where the parties claim the property in the hands of the NEW JERSEY TITLE GUARANTEE & bailee in absolute adverse rights, not founded TRUST CO. v. RECTOR et al. in any privity of title or any common con (Court of Chancery of New Jersey. March 30, tract. As the present bill of interpleader dis 1909.) closes that the two defendants assert adverse rights, which are in no way connected by title or contract, the decision above referred to must be here regarded as conclusive against complainant's right to compel defendants to interplead, unless the act of our Legislature approved May 7, 1907, entitled "An act concerning warehouse receipts and to make uniform the law relating thereto" (P. L. 1907, P. 341), shall be found to have conferred jurisdiction on this court to entertain the present bill. Sections 17 and 18 of the act referred to provide: "Sec. 17. If more than one person claim the title or possession of the goods, the ware- | J. M. Rector as follows, viz: Silverware, tohouseman may, either as a defense to an ac- tal valuation, five hundred dollars ($500), on tion brought against him for nondelivery of dollars has been paid for the goods, or as an original suit, whichever is appropriate, require all known claimants to interplead. "Sec. 18. If some one other than the depositor or person claiming under him has a claim to the title or possession of the goods and the warehouseman has information of such claim, the warehouseman shall be excused from liability for refusing to deliver the goods, either to the depositor or person claiming under him or to the adverse claimant, until the warehouseman has had a reasonable time to ascertain the validity of the adverse claim or to bring legal proceedings to compel all claimants to interplead." The language employed in the sections quoted, when literally construed, clearly confers upon a warehouseman the right to compel adverse claimants to interplead; but it seems manifest that the language there used can only be given the precise force intended by the Legislature when it is considered in connection with the general purpose and plan of the act. The title to the act relates alone to warehouse receipts, and throughout the act its provisions relate to rights, duties, and obligations arising from deposits of goods with warehousemen in connection with the issuance of warehouse receipts therefor; and so far as the act assumes to confer rights or impose duties on warehousemen it would seem to be necessary to treat its provisions as in cidental to the existence of warehouse receipts, in order that its provisions may be embraced within its title. In this view it seems clear that the language of sections 17 and 18 must be understood as limited to instances in which goods have been stored with warehousemen and warehouse receipts issued therefor. The bill asserts that complainant is a corporation of this state "conducting the business of running safe-deposit vaults and warehousing valuable goods and chattels for hire," and that defendant Joseph M. Rector deposited with complainant a locked tin box, with contents unknown to complainant, but which the depositor represented to contain silverware, and that complainant received the box to be stored and safely kept, and that complainant delivered to the depositor in the regular course of its business its usual receipt A copy of the receipt is set in such cases. forth in the bill as follows: "Safe Deposit Vaults of the New Jersey Title Guarantee & Trust Company, Nos. 83 & 85 Montgomery Street, Jersey City, N. J. Certificate of Receipt for Valuables. “No. 1,749. Received of Dr. J. M. Rector, of Jersey City, N. J., to be placed in one of the storage vaults of the company for safekeeping, one (1) package, contents unknown which storage up to "Upon redelivery of the above-mentioned package to the depositor, the liability of the company will cease, without reference to the contents thereof. "In no event is the company to be liable for a greater sum than the above valuation. No portion of the compensation for storage is to be returned for any cause, and if the property be not removed on or before the expiration of the time for which the same is paid the storage shall stand renewed for another like term, for which a like rate shall be due, and chargeable, payable in advance. "Jersey City, N. J., August 19, 1908. "Schas. Schlegel, for the Company." It will be observed that the receipt which was by complainant given to the depositor fails to comply with the statutory requirements touching warehouse receipts. The second section of the act referred to provides that a warehouse receipt must embody within its terms certain specific features there enumerated. Two of the specific requirements are "a statement whether the goods received will be delivered to the bearer, or to a specified person, or to a specified person or his order," and "the rate of storage charges." Neither of these features are embodied in the terms of the receipt set forth in the bill. Assuming, as I have already assumed, that sections 17 and 18 of the act must be understood to refer only to a warehouseman who has issued a warehouse receipt, the question then arises whether the receipt so issued must be a statutory receipt; that is, a receipt containing all the features which the statute says must be embodied in the written or printed terms of a warehouse receipt. The present inquiry is not whether all of the beneficial provisions of the act in favor of depositors are intended to apply only to receipts which are issued in strict conformity to the requirements of the act, but is whether one who has received goods for safe-keeping and who has issued a receipt for the goods which fails to comply with the requirements of the act can invoke in his own behalf the privileges conferred by sections 17 and 18. I am convinced that, until a bailee of goods has issued a warehouse receipt in conformity to the requirements of the second section of the act, he has not brought himself within the privilege which the Legislature has intended to confer by sections 17 and 18. Any other view would seem to in effect nullify the legitimate force of the provisions of the second section. Some of the requirements of that section may seem of little practical importance, but that feature must be regarded as wholly a matter of legislative concern. However unimportant the requirements may be, the Legislature has nevertheless imposed the duty upon a warehouse |