(81 N. J. Eq. 510) penditures made by it and for which allowVULCAN DETINNING CO. v. AMERICAN ance is made to it by the master, and also upon those items which were excluded by CAN CO. (Court of Errors and Appeals of New Jersey. the master on the accounting, but for which, May 26, 1913.) INJUNCTION (§ 199*)-USE OF SECRET PROCESS A defendant in an action to restrain the use of a secret process and for an accounting of the net profits from its use is entitled to a credit for interest on all items of expenditure as we have already held, the defendant is entitled to an allowance, and which we have heretofore specifically indicated. (82 N. J. Eq. 176) MARSH v. MARSH et al. in carrying on the business allowed as credits (Court of Chancery of New Jersey. May 29, in the accounting. [Ed. Note.-For other cases, see Injunction, Cent. Dig. § 419; Dec. Dig. § 199.*] Extension of opinion. 1913.) TRUSTS (§ 316*)-COMMISSIONS TO TRUSTEE- While the maximum rates of commission For former opinion, see 80 N. J. Eq. 443, allowed to a trustee are fixed by statute, the 85 Atl. 318. See, also, 69 Atl. 1103. actual rate allowed is within the court's discretion, depending upon the actual trouble, risks, etc., incurred, according to the particular cir cumstances. Robert H. McCarter, of Newark, and Henry Wollman, of New York City, for complain-Dig. 88 445-459; Dec. Dig. § 316.*] [Ed. Note.-For other cases, see Trusts, Cent. ant. R. V. Lindabury, of Newark, and Julius F. Workum, of New York City, for defendant. Suit by John Edward Marsh against Rolph Marsh and others. On application to fix a PER CURIAM. In the opinion promulgat- trustee's final commissions. Commissions fixed in this case at the last November termed as stated. of this court it was held that in the account- Cornelius Doremus, of Ridgewood, for coming between the parties the defendant was entitled to be credited, not only with the various items set forth in the report of the master, but also with certain other items which we specified. plainant John Edward Marsh. William D. Edwards, of Jersey City, for Charles Capron Marsh. Alfred F. Skinner, of Newark, for Cordelia Bibb. Albert C. Wall, of Jersey City, for Rolph and William Y. Marsh. Frank G. Turner, of Jersey City, for Frieda Marsh Young. Harlan Besson, of Hoboken, as special guardian for Lawrence Copley Shaw. LEWIS, V. C. The application in this matter is for the court to fix final commissions for the trustee in the estate of John Edward Marsh. The trustee has devoted his entire time to this large estate, which started with a corpus of $900,000, and has been brought to the point where the total passing through his hands has amounted to approximately $5,000,000. It is true that the heirs, some of them, have urged the earlier closing up of the affairs, and distribution of the proceeds; but the trustee has, under the powers given him by the will, used his judgment, and held the bulk of the estate until it has become very valuable. There is no charge of dishonesty or betrayal of trust. The trustee and those associated with him, both of whom have died, have received from time to time commissions, and under the statutory allowances, taking a maximum, the figures as now due are the sum of $42,052.75. This would be upon a basis or percentage as follows: Upon corpus, 21⁄2 per cent.; upon income, 5 per cent.; upon income upon special trust fund, 5 per cent. Our attention is now called to the fact that the opinion is silent with respect to the question whether the defendant is entitled to be allowed interest on these various items, including those credited to it by the master; and (counsel being in doubt about the matter) we are asked to declare whether or not it was our intention that such interest should be allowed. It was stated in the opinion that the sole purpose of the accounting was the ascertainment of the actual net profit made by the defendant company in the conduct of the business of detinning tin scrap during the period of the accounting; and that in an accounting had for that purpose the defendant was entitled to be credited with the expenditures made by it in the carrying on of the business, and for the benefit of the business. Upon the theory on which this account is had the defendant, having made these expenditures out of its own funds, is entitled to be allowed interest thereon from the time when each of them, respectively, was made; for, in ascertaining the actual profits of a business venture, the interest on a fund invested in or spent in carrying on such venture is as much a part of the outlay of the persons engaged in it as is the expenditure of the principal itself. In addition to the alterations to be made It is urged by the solicitors of the defendin the master's account, and heretofore spec- ants that the trustee is not entitled to this, ified by us in our opinion, the remittitur because of the large commissions previously in the cause will provide that in the restat- allowed; and the court is constrained to ing of the account the defendant shall be agree with them. Reference was made durcredited with interest on each of the ex-ing the argument upon commissions to a dis cussion over a compromise allowance of $18,000. This was merely tentative, and never consummated. The trustee is not bound nor affected by this, as he was not present at the conference, and declined to accept the suggestion. In fixing the allowance by way of compensation the court does not consider that conference, and is in no way affected by it; but the allowance is based entirely upon what is deemed to be proper compensation, as gathered from the amount of work done, as shown by the trustee's accounts, the amount of income and principal handled, and the results obtained. of Assessors to review an assessment for taxes. Taxes set aside. Argued before SWAYZE, J., sitting alone, under the statute. Albert C. Wall, of Jersey City, for prosecutor. William D. Edwards, of Jersey City, for State Board of Assessors. sired in this case, so that an appeal may be SWAYZE, J. As a speedy decision is depromptly taken, I shall merely indicate briefly the reasons which lead me to think that the state board of assessors erred. While the maximum rates of commission I assume that the property assessed may are fixed by the statute, in this case the maximum rate being 5 per cent., nevertheless fairly be called "omitted property," although the actual rate allowed is within the discre- the provision of the statute under which the tion of the court; and the rate allowed de-assessment was made, giving the railroad pends upon the actual pains, trouble, and company credit for payment made pursuant risk incurred by the executor; each case is to assessments of the local assessors, indito be determined upon its own facts and cir- cates that the Legislature supposed it was a case where the assessment was too low, rathcumstances. Metcalfe v. Colles, 43 N. J. Eq. We have then 148, 10 Atl. 804; Fluck v. Lake, 54 N. J. Eq.er than a case of omission. 638, 35 Atl. 643. In Lyon v. Bird, 79 N. J. Eq. 157, 80 Atl. 450, the inventory showed corpus $72,000; the increase was $9,000. Held, that 5 per cent. was excessive; that 1 per cent. on inventory, and 21⁄2 per cent. on increase, was sufficient. In re Hibbler Estate, 78 N. J. Eq. 217, 78 Atl. 188, the executor and trustee was allowed 3 per cent. on $166,000 as executor. After managing the estate for 12 years he resigned, and asked for 2 per cent. on the corpus for compensation as trustee. This was denied. The 3 per cent. allowed to him as executor was held excessive, and the court held that it should be deemed to cover commissions as trustee also. Taking all the facts into consideration in this case, I think the following computation would be equitable: 14 per cent, on the total principal; 2 per cent. on the total income; and 2 per cent. on the total income, special fund; making an allowance of $18,332.35. a case where property was not assessed in the years 1906, 1907, 1908, and 1909, and an attempt to assess it under authority of not have been assessed without that authorian act passed in 1911. P. L. 580. It could ty, since the Railroad Tax Act provides that failure to make a complaint of the omission Monday of November shall be deemed a of property from taxation before the third to the provision of the General Tax Act, waiver. C. S. 5270, pl. 456. This is similar which allows a year from the time taxes on real property become a lien. C. S. 5107, pl. from the act of March 24, 1890 (G. S. 3429, 28. The proviso in the general tax act comes similate as far as possible the provision as pl. 674), and was probably inserted to asto other property with the provision as to railroad property, in order to comply with our state Constitution. The period fixed in each case is practically a year, varying because of the difference in the method of taxation. The object of the Legislature obviously was to set at rest each year the amount of assessment, so that all property of the same class might, if possible, be assessed by the same men, and the municipalities and the state be assured with reasonable promptitude of the amount of the receipts from taxes. It was just to the landowner and taxpayer, because it enabled him to know his obligations and to convey his land with some assurance that it was not subject to taxes to be imposed at some indefinite time in the future. Uncertainty as to his obligations would make it impossible for him to gauge his expenditures by his income; uncertainty as to the extent of possible liens on his land would affect its marketability. It is to be observed that the acts apply alike to property that is omitted and to property that is Certiorari by the Pennsylvania Tunnel & assessed at too low a rate. It would be quite Terminal Company against the State Board | intolerable if valuations upon which taxpay (84 N. J. L. 49) The tax on railroad property only, imposed by Act 1911 (P. L. 580) for prior years that it had been omitted from taxation, is a new tax, right to tax it having, under 4 Comp. St. 1910, p. 5270, pl. 456, been waived by failure to seasonably complain of the omission, and so violates the provision of the Constitution for uniform taxation. [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 68-89; Dec. Dig. § 40.*] This case differs materially from that provided for by the act of 1908 (P. L. 15). There property had been assessed by local assessors pursuant to an act which the Court of Errors and Appeals held unconstitutional. No injustice was done by having a reassessment made by the state board of assessors; but even in that case the Legislature was careful to limit the power of the state board to three months from the date of approval of the act. So important is prompt action in matters of taxation. er and state and municipality had relied | color of reason for this. The property owned were subject to be changed years afterward. in fee was taxed locally. The so-called main The Legislature very wisely provided that stem consisted only of a railroad in course of the matter should be closed substantially construction through a tunnel then building at the end of a year. This was in harmony beneath the Bergen Hill and the Hudson with the general scheme by which the ordi- river. The land above the tunnel was taxed nary disbursements of each year are met by to the owner; what was omitted was the the annual revenues. Omitted property railroad company's easement. Its value at stands on the same basis in the statutes as the time was quite problematical. The very property assessed at too low a rate. In effect fact that the present assessment is only at a the Legislature exempted from taxation percentage of the amount actually expended omitted property, unless complaint was made shows that the best that could be done was a with the promptness required by the statute. mere guess. Whether the work done was From the third Monday of November in each valuable depended upon the final completion year, until the act of 1911, there was no of the enterprise. authority to impose the taxes now in question. I am unable to see any vital distinction between this case and that of Wagoner v. Evans, 170 U. S. 588, 18 Sup. Ct. 730, 42 L. Ed. 1154. In that case the act of 1895 enabled the special assessor to assess or reassess property that had escaped taxation; the claim of the county authorities was that this enabled him to assess for the years 1892, 1893, and 1894. The answer of the court was that prior to the act of 1895 there existed no power in the authorities of the county. It is true the difficulty there was that the Indian reservation had not been attached to the county. Here the difficulty is that the state by its legislative enactments has in effect canceled the liability to tax. The right to tax omitted property years afterward rests upon the theory that there remains an unsatisfied obligation to the public. Florida Central, etc., R. Co. v. Reynols, 183 U. S. 471, 475, 22 Sup. Ct. 176, 46 L. Ed. 283. That obligation the court said was not canceled or discharged by the failure of duty on the part of any tribunal or officer, legislative or administrative. I do not question this, but a failure of duty is very different from an express enactment intended to quiet titles and prevent confusion in public finances. The Legislature, which may exempt altogether, may surely cancel the taxpayer's obligation if an assessment is not made within the time set. When that time has elapsed, an attempt to impose a tax for a time past is not really imposing a tax that was inadvertently omitted; it is imposing a new tax for a new obligation and giving it a retroactive effect. It is said that it was the duty of the railroad company to make a return. So it is the duty of the individual taxpayer to make a return. The Legislature, of course, had this duty in mind when it enacted the provision as to waiver, but did not regard it as a valid reason against that enactment. In the present case the railroad company acted in good faith and had their agent make application to the state board of assessors to know what to do, and was advised not to report the property. There was Since the tax is a new tax imposed by the act of 1911, it is objectionable because it is imposed on railroad property alone. Other omitted property escapes. The right to classify railroad property by itself for purposes of taxation is not unlimited. The Legislature cannot separate a part of such property from the general mass thereof, and require that such part be assessed and taxed by a different method and for a different purpose. Central R. Co. v. State Board of Assessors, 75 N. J. Law, 771, 69 Atl. 239. The subject to be dealt with was omitted property, and all property of that class must, under our constitutional provision, be treated alike. Under the decision last cited it was improper to make a subclass of omitted railroad property and tax it, while forbearing to tax other omitted property. The omission of railroad property from assessment does not differ from the omission of any other taxable property, so as to justify the Legislature in going back five years to impose a new tax in one case and not in the other. In both cases the property owner is at fault for not making a return; in both he must be held to know, whether he knows in fact or not, that his property is assessable, and that the tax ought to be paid; in both the public officers charged with the duty of assessing and collecting taxes are equally at fault; in both the Legislature has by a statute of repose canceled the obligation. The attempt in the act of 1911 to go back five years in the case of railroad property violates the provision of our state Constitution. These taxes must therefore be set aside. (84 N. J. L. 408) MANGONARO v. KARL whether excessive force was used in ejecting plaintiff from a train. [Ed. Note.-For other cases, see Carriers, (Court of Errors and Appeals of New Jersey. Cent. Dig. §§ 1492-1496; Dec. Dig. § 383.*] In an action to recover a deposit made on a contract for sale of land for failure of vendor to make good title, plaintiff may not recover his expenses in investigating the title. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1008-1017; Dec. Dig. § 341.*] Error to the Supreme Court. Error to Supreme Court. Action by Alexander Bottstein against the Erie Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed. The following is the opinion of the Supreme Court: "PER CURIAM. [1, 2] The only legal errors complained of are the refusal to nonsuit Action by Giacoma Mangonaro against the plaintiff and the refusal to find for the John Karl. From a judgment for plaintiff, defendant. The trial judge found that exdefendant appeals to the Supreme Court, cessive force was used in ejecting the plainwhich reversed the judgment and venire de tiff from the train. If there was evidence novo awarded, and plaintiff appeals. Afto justify this finding, it is unnecessary to decide whether the plaintiff was rightly on firmed. the train or not. The plaintiff testified that The following is the per curiam opinion of the conductor grabbed him, tore his coat, the Supreme Court: bruised his arm so that he has had consider"The plaintiff below entered into a con-able trouble with it ever since and has been tract with the defendant for the purchase doctoring with it; that he pulled him out of of some real estate. The plaintiff investigat- the seat by his arms. His brother testified ed the title and found that the defendant that, after the conductor had put the plaincould not give a good title. The plaintiff tiff off the train, he saw a man wearing the thereupon brought this suit to recover his uniform of the railroad company with a landeposit and the expenses incurred by him intern in his hand punch the plaintiff in the investigating the title, which expenses were $89.50. The court below gave judgment for $189.50 and the defendant on this appeal questions the legality of the recovery of the expenses of investigating the title. This allowance of the expense of investigating the title, we think, under the decisions in this state, was erroneous. The expense of investigating the title cannot be recovered in an action such as the present one. Gerbert v. Trustees, 59 N. J. Law, 160, 35 Atl. 1121, 69 L. R. A. 764, 59 Am. St. Rep. 578. "The judgment of the court below will be reversed, and a venire de novo awarded." nose. There was evidence by the plaintiff himself from which it might be inferred that these statements were exaggerated, and that no more force was used than was necessary. We think it is a question of fact whether excessive force was used, and, as the judge found that such was the case, it was not le gal error to refuse to nonsuit or to find for the defendant. "The judgment is therefore affirmed, with costs, and judgment may be entered in this court." Collins & Corbin, of Jersey City, for plainM. T. Rosenberg, of Jersey City, for plaintiff in error. Robert S. Hudspeth, of Jersey tiff in error. Louis A. Cowley, of Passaic, City, for defendant in error. 2. CARRIERS (§ 383*)-WRONGFUL EJECTION. [Ed. Note. For other cases, see Physicians As against a motion for nonsuit, evidence and Surgeons, Cent. Dig. §§ 53-62; Dec. Dig. held to present a question for the jury as to§ 24.*] 2. APPEAL AND ERROR (§ 169*)-OBJECTIONS-condition that should the son die without leavPRESENTATION BELOW. Questions argued in the brief, but not raised at the trial, cannot be considered. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1018-1034; Dec. Dig. § 169.*] Appeal from Supreme Court. Action by John Corcia against Mauro Giuliano and another. From a judgment for plaintiff affirmed by the Supreme Court, defendants appeal. Affirmed. The following is the per curiam opinion of the Supreme Court: [1, 2] "The plaintiff, a physician, obtained a judgment, in the district court of East Orange against the defendants, who are husband and wife, for medical services rendered their daughter in the city of New York. From this judgment, the defendants appeal to this court. ing any children or grandchildren, or should all his children or grandchildren die without leaving any lawful issue, then over to others of the testator's children, the devise to "his lawful heirs" was substitutionary for the primary devise to his son taking effect as a direct devise only in case of the son's death in the lifetime of the testator, and the subsequent limitations were intended to apply to the two contingencies of the taking of the estate by the son, or by his tention that the two limitations should be inlawful heirs, and, in the absence of a clear inseparable, they would be held separable, so death, the son could not convey by warranty that, by reason of the limitation over on his deed free from all incumbrance. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 992–995; Dec. Dig. § 473.*] Bill by Peter Merkel against Albert Capone for specific performance of agreement for sale of lands. Demurrer to bill sustained. Casimiro Scoppettone, of Newark (Sweeney Otto A. Stiefel, of Newark, for demurrant. & Scoppettone, of Newark, of counsel), for complainant. EMERY, V. C. John Merkel, the father of Peter Merkel, the complainant, by his last will devised as follows: "From the state of the case it appears that counsel for defendants, at the trial, moved for a nonsuit on these grounds only: (1) That the plaintiff had not introduced in evidence his license as a physician and surgeon in the city of New York; (2) that the plaintiff had not deposited with the clerk of Essex county a copy of any diploma of a legally chartered medical college or university in good standing, or some medical society having power by law to grant diplomas, which motion for nonsuit was denied, and we think properly so. The other ques-Prince Street, Newark, New Jersey, subject tions argued in the appellant's brief were not raised at the trial, and therefore cannot be considered here. "Judgment will be affirmed." Anthony R. Finelli, of Newark, for appellants. J. Victor D'Aloia, of Newark, for respondent. "To my son Peter Merkel or his lawful heirs I hereby give and bequeath all the tracts and parcels of land and premises conveyed to me by George T. Smith and wife, and known as Numbers 38, 40, 42, 44 and 46 to all and every encumbrance thereon, for his own private use forever, under the express condition and restriction that should my son Peter die without leaving any children or grandchildren or should all his children or grandchildren die without leaving any lawful issue, then and in such case I hereby give and bequeath all the property above bequeathed to my son Peter, to my son John and the children of my daughter Elizabeth M., viz.; one half to my son John and one half to the children of my said daughter Elizabeth M., or their several lawful heirs, for their private use forever." The will was dated June 11, 1884; testa (Court of Chancery of New Jersey. May 19, tor died November 30, 1888. Peter, the son, 1913.) 1. PERPETUITIES (§ 4*) — FUTURE ESTATES- 2. PERPETUITIES (§ 4*)-FUTURE ESTATES. [Ed. Note. For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. § 4.*] 3. WILLS (§ 473*)—SEPARATION OF VALID AND INVALID LIMITATIONS. Where testator devised to defendant, his son, or to his lawful heirs certain lands upon had at the date of making the will and at the death of his father two children living, John and Bertha, who are still living, and each has children born since testator's death; John having three and Bertha one, all infants. Peter Merkel by written agreement contracted to convey 38 Prince Street, one of the tracts mentioned in the devise, to the defendant Albert Capone, the conveyance to be by deed of warranty, free from all incumbrance, for $5,000. To the bill for specific performance of the agreement defendant demurs solely on the ground of defect of title in Peter Merkel, and the question which has been argued on the demurrer is whether Peter Merkel has an absolute title in fee simple and can convey the lands, free of limi |