Frenche v. Kitchen.

dead, and the complainants are at a great disadvantage. This is a proper case to enforce the rule that, in suits to rescind contracts for fraud, it is the duty of the complainants to put forward their complaint at the earliest possible period." This principle, universally recognized, is illustrated in a great variety of cases. Wilkinson v. Sherman, 18 Stew. Eq. 414; Van Houten v. Van Winkle, 1 Dick. Ch. Rep. 384; Lynch's Administrators v. Vanneman, 18 Atl. Rep. 468; S. C. affirmed in court of errors and appeals, at the June Term, 1894; Doughty v. Doughty, 2 Stock. 351; Hance v. Conover, 4 Stew. Eq. 505; McCartin v. Traphagen, 16 Stew. Eq. 324; Bump Fraud. Conv. 533; Harwood v. Railroad Co., 84 U. S. 81; The Key City, 81 U. S. 653; Richards v. MacKall, 124 U. S. 183.

Counsel for the complainants insisted that, so long as the vitality of the mortgage was preserved, the complainants could institute any proceedings whatever for its enforcement, against any right or interest of the defendants therein. This proposition no one will dispute, but the question is not solely between the complainants and the defendant in the judgment at law. A third party has been introduced, who cannot be affected at all directly by the judgment at law. She now claims rights or interests which stand in the way of the execution of the complainants, issued upon their judgment at law. They find it necessary to bring this suit in equity in order to brush away her claim of right or interest. Hence, the inquiry is whether, as to her, it is fair and conscionable for the court, after the lapse of twenty years, to entertain this proceeding. Not only is the defendant in the judgment at law charged with fraud, but his wife, who was in no way connected, is also charged with complicity in the fraud. There is not only nothing set up in the bill of complaint showing why there has been so much delay in commencing this suit, but not the slightest effort was made in offering the testimony to satisfy the court that the complainants had used reasonable diligence. Had the complainants acted with that promptitude which I think is required by the spirit of the cases above cited, Mrs. Kitchen would have been able, beyond any reasonable doubt, to have established with very

Bogardus v. Gordon.

great certainty the amount of money advanced by her, as well for the purchase of the title to the land in question as for the improvements put thereupon; and if, as now she insists, she did not make all such payments, what she did really make would have been preserved to her by way of lien, according to the well-settled practice of this court. Roe v. Moore, 8 Stew. Eq. 526, 529; Demarest v. Terhune, 3 C. E. Gr. 532; Levi v. Welsh, 18 Stew. Eq. 867.

It is no part of the duty of a court of equity to encourage parties in any fraudulent attempts against creditors, but claims of the character of those presented by Mrs. Kitchen will not be disregarded unless the testimony clearly establishes the charge that they were used for an unlawful purpose.

The fact that the conveyance to Mrs. Kitchen was made pending the suit is a badge of fraud, and is properly urged upon the consideration of the court in that light. Kitchen himself, when he was about to borrow the money, said that he owned the premises in question. This cannot be charged as evidence of fraud against Mrs. Kitchen unless it is also made to appear that she consented that her husband should hold the title in order that he might acquire a greater credit thereby. There is nothing in the case to show that Mrs. Kitchen did anything more than to take steps to secure the title to this property in her own

name.

I will advise that the complainants' bill be dismissed, with

costs.

OBADIAH C. BOGARDUS

v.

MARGARET J. GORDON et al.

In case, after a general act upon the subject of usury, an act is passed imposing a different penalty for a single county, and still later the general act is amended, in which no reference whatever is made to the special or local act, the latter being radically inconsistent with the special or local act and by negative terms covering the whole of the subject-matter, operates as a repeal - of such special or local act.

Bogardus v. Gordon.

On motion under Rule 213.

Mr. William H. Vredenburgh, for the complainant.

Mr. William Hyres, for the defendants.

BIRD, V. C.

This bill was filed for the foreclosure of a mortgage. The contracting parties reside in the county of Monmouth, and the lands embraced in the mortgage lie in that county. The mortgagor answers and claims the benefit of the act of the legislature approved March 10th, 1875, which is in these words:

"That all contracts for the loan of money, wares, merchandise, goods or chattels hereafter made in the county of Monmouth, in this state, whereby above the value of seven dollars for the forbearance of one hundred dollars for a year or above that rate for a greater or less sum, or for a longer or shorter period, shall be taken directly or indirectly, shall be utterly void. That all acts and parts of acts inconsistent with this act be and the same are hereby repealed."

The complainant moves to strike out of the answer so much of it as claims any protection or relief under the act just quoted. In support of his motion, he insists that the provisions of the act approved March 27th, 1874, as amended by the act approved February 26th, 1878, operate as a repeal of the act of March 10th, 1875.

The act of March 27th, 1874, is in these words:

"That no person or corporation shall, upon any contract, take, directly or indirectly, for loan of any money, wares, merchandise, goods or chattels, above the value of seven dollars for the forbearance of one hundred dollars for a year, and after that rate for a greater or less sum, or for a greater or shorter time."

The second section makes this provision :

"That in all cases of suits, either at law or in equity, to enforce any note &c. on which a higher rate of interest shall be reserved or taken than was or is allowed by the law of the place where the contract was made or is to be performed, the amount or value actually lent, without interest or costs of suit, may be recovered, and no more; and if any premium or illegal interest shall have been paid to the lender, the sum or sums so paid shall be deducted from the amount that may be due as aforesaid, and recovery had for the balance -only."

Bogardus v. Gordon.

The act which was approved February 26th, 1878, is in

these words:

"That the first section of the act to which this is a supplement, and which reads as follows [which is the first provision copied above], be and the same is hereby amended so as to read as follows: 'that no person or corporation shall upon contract, take, directly or indirectly, for loan of any money, wares, merchandise, goods or chattels, above the value of six dollars for the forbearance of one hundred dollars for a year, and after that rate for a greater or less sum, or for longer or shorter time.'"

The next section declares:

"That so much of the first section of the act to which this is a supplement,. as is inconsistent with this supplement, be and the same is hereby repealed."

In the last act no reference is made to the act of March 10th, 1875.

It will be perceived that the act of March 10th, 1875, declares. that every such contract shall be void. This act is what is called "local," or special in its nature, being applicable only to a single county. The act of February 26th, 1878, is general,. as distinguished from special. The claim that the act of 1878 works a repeal of the act of 1875 is resisted upon the familiar principle that general laws do not, by implication, abrogate special laws.

The general rule is, "that a general statute, without negativewords, will not repeal the particular provisions of a former one unless the two acts are irreconcilably inconsistent." Sedgw. Stat. & Const. L. 97; Craft v. Jachetti, 18 Vr. 205; State, Morris and Essex Railroad Co. v. Commissioners of Railroad Taxation, 8 Vr. 228; School District v. Whitehead, 2 Beas. 290; Henderson's Tobacco, 11 Wall. 652; Rogers v. Watrous, 8 Tex. 62; United States v. Tynen, 11 Wall. 92; People v. Gold and Stock Telegraph Co., 98 N. Y. 67; Bowen v. Lease, 5 Hill 221.

Or unless it was clearly intended to prescribe the only rule that should govern in the case, then it will repeal the original act. School District v. Whitehead, supra; State, Morris and Essex Railroad Co. v. Commissioners of Taxation, supra; Rogers

Bogardus v. Gordon.

v. Watrous, supra; Daviess v. Fairbairn, 3 How. (U. S.) 635, 636; State v. Stoll, 17 Wall. 431; United States v. Tynen, supra ; Davis v. State, 7 Md. 151; Towle v. Marrett, 3 Greenl. 22; Edgar v. Greer, 8 Iowa 394; Britton v. Commonwealth, 1 Cush. 302.

Or unless it embraces the whole subject-matter. Dugan v. Gittings, 3 Gill 138; Bartlett v. King, 12 Mass. 536; Heckmann v. Pinkney, 81 N. Y. 211; United States v. Cloflin, 7 Otto 546; Bowen v. Lease, supra; Britton v. Commonwealth, supra. The act of 1876 is without the slightest qualification, and therefore general. It cannot be questioned but that it embraces every county in the state as fully as the act of 1874. The act of 1875, by its express provisions, excepts the county of Monmouth from the operation of the act of 1874, and increased the penalty to the forfeiture of the entire sum loaned.

The undisputed facts just adverted to show that the act of 1878 cannot be reconciled with the act of 1875. There are no exceptions in the former. This unqualified language of the lawmaking power proves conclusively that it intended to prescribe the only rule that should govern. Nor does it require any argument to make it manifest that the later act embraces the whole subject-matter as well as all the territory within the borders of the state.

The case more like this than any other is that of People v. Jaehne, 103 N. Y. 182. In this case an act, which was called the Consolidation act, prescribed certain penalties for crimes for the city of New York. The penal code prescribed other and greater penalties for the same crimes. The Consolidation act was approved subsequent to the penal code, but there was a provision that, notwithstanding the latter was prior in point of time, it should take effect at a given date after the enactment of the Consolidation act. There was no provision in the penal code expressly repealing the Consolidation act. Jaehne was indicted in the city of New York, for bribery. There were two counts in the indictment, one charging him under the Consolidation act and the other under the code. Upon motion requiring the prosecuting attorney to elect under which count he would