replevin in all cases where his goods are in another's possession. There must be an unlaw: ful detention. In that respect, the action of replevin is put on the same footing as the action of trover. There must be an actual conversion, or a refusal to deliver on demand, which is evidence of conversion, before the deteption becomes unlawful. To constitute a conversion of goods, there must be some repudiation by the defendant of the owner's right, or some exercise of dominion over them by him inconsistent with such right, or some act done which has the effect of destroying or changing the quality of the chattel." At the close of the case, the defendant moved for the direction of a verdict, on the ground that no written demand for the horse had been served upon the defendant before the institution of the suit. The absence of proof of a demand is fatal. The judgment must therefore be reversed, and a new trial awarded. an order requiring the prosecutor to show cause why his license should not be revoked, whereupon he sued out this writ. Two grounds are urged: That the complainants did not have personal knowledge of the matters complained of; and that no notice was served upon the owner of the premises. Both are predicated upon the assumption that the case is controlled by the supplement of 1906 to the Werts law of 1889, which supplement is commonly known P. L. 1906, p. 199. as the "Bishops Act." But we have just held in a per curiam in the case of Palese v. Lane, 95 Atl. 126, submitted at November term, 1914, that the commissioners were not limited to this act, but were entitled to proceed under the act of May 6, 1889 (P. L. p. 359; G. S. 1815, pl. 153 et seq.; C. S. 2921, pl. 132, 133). This was. the act relied on by this court in Voight v. Excise Board, 59 N. J. Law, 358, 36 Atl. 686, 37 L. R. A. 292, as supporting a proceeding that would have been invalid under the We held in Werts act in its original form. the Palese Case that the supplement of 1906 to the Werts act did not operate as a repealer of the act of May 6, 1889, but that such act remained unimpaired. It is recognized The judgment is reversed, and a new trial as in force by our decision in Henkel v. Hoy, awarded. The only other point in the case that needs to be referred to is whether the plaintiff's testimony as to transactions with the deceased was competent. This has no legal merit because the record shows that the parties to the suit were not in a representative capacity, and even if it was otherwise, the defendant was sworn, and testified also to statements by the deceased. 74 N. J. Law, 56, 57, 64 Atl. 960, submitted and decided after the supplement of 1906. Inasmuch as this act requires neither no KLINE v. BOARD OF EXCISE, COM'RS OF tice to the landowner nor a verification by CAMDEN. (No. 257.) (Supreme Court of New Jersey. April 23, 1915.) (Syllabus by the Court.) INTOXICATING LIQUORS 45 - LICENSES The act May 6, 1889 (P. L. p. 359; 3 Comp. St. 1910, p. 2921, §§ 132, 133), authorizing the transfer and revocation of licenses granted by excise boards, etc., was not repealed by the enactment of the supplement of 1906 (page 199), known as the "Bishops Act," to the act of March 20, 1889 (P. L. p. 77), known as the "Werts Act." [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. § 47; Dec. Dig. 45.] Certiorari by Isaac Kline against the Board of Excise Commissioners of Camden, to review the granting of a license to sell intoxicating liquors. Writ dismissed. February Argued term, 1915, before SWAYZE, PARKER, and KALISCH, JJ. Stackhouse & Kramer, of Camden, for prosecutor. Edwin G. C. Bleakly and William J. Kraft, both of Camden, for defendant. PARKER, J. This writ brings up certain proceedings before the excise commissioners of Camden looking to the revocation of a license previously granted to the prosecutor to sell intoxicating liquors. There was a complaint to the commissioners alleging violations of the law, and upon this they made complainants having personal knowledge of the facts, the points made are without substance, and the writ will be dismissed, with costs. In re EATON. (No. 39/652.) (Court of Chancery of New Jersey. April 29 1915.) ATTORNEY AND CLIENT 44-MALPRACTICE -ACTS CONSTITUTING. A solicitor obtaining money from a client on false representations that her suit, prosecuted by him, was progressing, when in fact he had not begun the suit, is guilty of misconduct, justifying disbarment. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 55, 56, 62; Dec. Dig. 44.] Order to show cause why Robert L. Eaton, a solicitor of the Court of Chancery, should not be adjudged guilty of malpractice as a solicitor, and be suspended from practicing as solicitor, or otherwise disciplined and punished. Order permanently disbarring him from practicing as solicitor directed. Nelson B. Gaskill, of Trenton, prosecutor. C. Addison Swift, of Elizabeth, for defendant. LEWIS, V. C. Robert L. Eaton is charged with malpractice as a solicitor of the Court of Chancery. The evidence, which is convincing, is that the solicitor, while prac This case falls within that of In re Simpson, 82 Atl. 507, where a solicitor was dis upon the false representation that her suit was pending and progressing, when in fact it had never been commenced. At a conference of the court this case was considered by the Chancellor and Vice Chancellors, and all concurred in the conclusion reached and the penalty to be imposed. ticing in the city of Elizabeth, this state, was [ against him were true, and that his derelicconsulted on or about the middle of Febru- tion was due to his infirmity of habit in ary, 1913, by Anna Williams for the purpose postponing from time to time what he should of obtaining a divorce from her husband, have done at once, and that his endeavoring Theodore Williams. She furnished the so- to conceal such carelessness and procrastinalicitor with the facts in her possession re- tion by a misstatement of facts did not arise garding the case, and he thereupon advised from any willful intent to deceive his client her that she was entitled to receive a decree or obtain from her money by reason of such of divorce, and agreed to act as her solici- deception. tor and prosecute for her. Subsequently he informed his client at various times that her cause had reached certain stages in the pros-barred who obtained money from his client ecution thereof, and that her husband had been notified of the pendency of the action against him. Some time in May, 1914, he stated to her that the case was coming up for hearing, and that he would need $25 for court expenses, and upon this representation she paid him the sum of $25, having previously paid various sums for fees and expenses requested by the solicitor, amounting to about $40. When called upon later for further information as to the situation of the case Mr. Eaton stated that the calendar of the court was very crowded, but that the matter would come up within a short time, and some time in August, 1914, he told Mrs. Williams that the court desired a certain point of evidence verified, which would cause further delay. An affidavit, which Mr. Eaton admits the truth of, was filed in these proceedings, by Alexander Kupferman, who says he was requested by Mrs. Williams to inquire of Mr. Eaton concerning the progress of her divorce proceedings. He did so, writing to Mr. Eaton on the 4th day of September, 1914, and received from him a reply as follows: "Got a letter from Ct. of Chancery commanding my appearance in Williams case tomorrow at Trenton. Will let you hear from me on my return." The records of the Court of Chancery of this state have been examined and contain no proceedings instituted in behalf of Anna Williams against her husband, Theodore Williams, for divorce. The solicitor filed an affidavit in the case admitting the truth of the facts contained in the affidavits upon which the order to show cause herein was based, and he also appeared at the hearing before me. Both in his affidavit and in his oral statement to the court he admitted receiving the sum of $65, which he returned upon the institution of this action, together with a further sum of $21, which was reported to him by Anna Williams and one Alexander Kupferman as their joint expenses in telephone calls, railroad fares, etc., by reason of their connection with the divorce suit. An order will be made permanently debarring the respondent from appearing in this court as a solicitor and prohibiting him from exercising any of the functions, rights, or privileges of a solicitor of this court. KOPCINSKI v. RICHARDSON. (No. 39453.) RIGHT TO. 99-CUSTODY OF CHILD— While a father has the paramount right to the custody of his child, yet where it is obvithe child and it was for the best interest of the ous the father would not be able to maintain child to be left in the custody of defendant, who had, with the father's consent, removed her from an institution and maintained her for some time, the father will be denied custody of the infant, although such denial merely affects his present right, and will not preclude a subsequent petition when conditions have changed. [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. 99.] Petition by Michael Kopcinski for writ of habeas corpus against Emma M. Richardson. Writ denied. William S. Darnell, of Camden, for petitioner. Howard L. Miller, of Camden, for defendant. LEAMING, V. C. A petition has been filed in this court by Michael Kopcinski, praying that a writ of habeas corpus may issue to bring Mary Kopcinski, the daughter of petitioner, before this court, and that she may be released from the restraint of defendant, her present custodian, and be delivered to petitioner. Defendant has made a sworn return to the writ, and an answer to that return has been filed by petitioner. On the issues thus framed the child has been brought into court and the controversy has been heard by the parol examination and cross-examination of witnesses offered in behalf of the respective parties. After the presentation of the case by the prosecutor, Mr. Eaton was asked if he desired to offer any testimony, and replied that he did not. His counsel then stated to the court that Mr. Eaton had no defense to Little, if any, doubt can be said to exist offer whatever, that the charges made touching the material facts. Petitioner is the father of three children: | Day Nursery with his other two children. John, now nine years of age; Mary, the But the charge of that institution against subject of this controversy, now seven years petitioner will then be $3 per week which, of age; and Peter, now five years of age. if paid, will leave petitioner with but $2 The wife of petitioner, mother of these chil- per week for his own support; it is obviousdren, is insane, and is confined in the Cam- ly impossible for petitioner to pay the necden County Insane Asylum at Blackwood. essary charges of that institution and live. Petitioner is a man of extremely dull comprehension, and at this time is without meaus or employment. When in health his earning capacity is about $8 or $9 per week. An accident has incapacitated him from labor, and he is at this time receiving $5 per week under the Employers' Compensation Act; this constitutes his entire present and prospective income until such time as he may again become physically able to work. He occupies a single room, in which he sleeps and prepares his meals. Defendant is a practicing physician of Camden. Her home, her surroundings, and her personality may be briefly characterized as in extreme contrast with those of petitioner. Her custody of Mary, the subject of this controversy, arose in the following manner: About three years ago defendant was conducting a charitable institution known as the Mary J. Ball Home and Day Nursery, the institution being named in honor of defendant's deceased mother. The three children of petitioner were at that time placed in that institution, and petitioner paid $1 per week for board and care of each child. After the three children had been in the home for about three months Mary was taken by defendant from the public home to her own residence, and since that time Mary has The situation thus presented, like most cases of this class, invokes the exercise of a higher degree of judgment upon the part of the court than is given the human intellect, as it measurably involved the consideration of an almost impenetrable future, for in cases of this class a court is required to regard the best interests of the child in connection with the strict legal rights of a father. The law controlling the subject has been so clearly defined by our Court of Errors and Appeals that it cannot be mistaken; it is stated by that court as follows: "Doubtless it is the strict legal right of parthe custody of their infant children as against ents and those standing in loco parentis to have strangers. This right will control the judgment of the court, unless circumstances of weight and child exist to overbear such strict legal right. importance connected with the welfare of the The court will not regard the parental right as controlling, when to do so would imperil the personal safety, morals, health, or happiness of the child. In determining this delicate and often difficult judgment, the court looks at the character, * habits, and other surroundings of claimants. In a controversy mount consideration in controlling the discretion over its possession, its welfare will be the paraof the court. The strict right of the parent will be passed by, if a judgment in observance of such right would substitute a worse for a better custodian." Richards v. Collins, 45 N. J. Eq. 283, 17 Atl. 831, 14 Am. St. Rep. 726. * * * It will thus be seen that a child cannot be A father been in defendant's personal custody at de- lawfully regarded as a mere inanimate chatfendant's residence. The transfer of Mary's tel which must be restored to the lawful custody from the public home to defendant's owner in all circumstances. Like the parprivate residence was undoubtedly with pe-ent, the child has rights, and the strict legal titioner's acquiescence; whether with his rights of a father, as such, can only be enexpress consent is a matter of dispute. forced in this court with proper regard to Since that time the Mary J. Ball Home and the best interests of the child. Day Nursery has been incorporated. cannot be denied the custody of his child merely because another person desires the custody and is better able to provide for the present or future interests of the child; but when it is entirely clear that a father cannot properly provide for his child, the silent but overpowering appeal of the best interests of the child must be respected. In such case custody is not refused the parent because another has the legal right of custody, but because the best interests of the child deny to this court the right "to substitute a worse for a better custodian." During the 21⁄2 years that Mary has been under defendant's personal care as a member of her household defendant has acquired deep affection for the child and that affection is obviously reciprocal; defendant has, indeed, sought to legally adopt the child, but has not been permitted to do so. The child, in marked and almost startling contrast with her father, is bright and attractive to an extreme degree. No word or suggestion of criticism has been made touching defendant's treatment of the child or touching her fitness as custodian of the child; the grievance of petitioner appears to be based upon his claim that he has been denied the right to visit his child as freely as he has desired. This claim is denied by defendant. It is established by the evidence that petitioner, as now circumstanced, is unable to assume personal custody of the child. It is, however, his purpose and wish to have the child placed in the Mary J. Ball Home and In this view of the law as applied to the facts of this case it is obviously impossible for this court to aid petitioner at this time. The prayer of his petition must be denied. To avoid possible misunderstanding of the parties touching the effect of a denial of petitioner's prayer for custody, it may be well to call attention to the fact that the present adjudication relates alone to present conditions. Petitioner remains the father of the child with all the rights of a father; he is merely denied the right to at this time be awarded custody of the child. As father of the child it is his right to retain and foster the love and esteem of his child and to enjoy her society at all reasonable times. It is, in like manner, the duty of defendant to teach the child to love and respect her father and to allow the father the fullest possible privileges for the enjoyment of the society of his child; any failure of this duty upon the part of defendant may be made the basis of future relief on his part. The mother of the child may recover from her unfortunate malady and the conditions of the father and mother of the child may, at some future time, determine the best interests of the child to be with them. It seems immaterial whether this proceeding be regarded as a strict habeas corpus proceeding, or as a chancery proceeding appealing to the chancellor as the representative of the state and the ultimate guardian of all infants. The prayer of the petition is that the child may be released from the restraint of defendant, and also that the child be delivered to petitioner. I am satisfied, not only from the evidence adduced on the hearing, but from a study of the building on the Gerba lot stands wholly within maps that were put in evidence, that the the lines of the lot which was conveyed to her and her husband by Richnowsky and wife on August 10, 1895. Mitruske knew all about the property, because he occupied it as a tenant at the time he made the agreement to purchase it. What he undoubtedly bargained for was the lot as conveyed by Richnowsky, and while the lot described in the agreement is substantially smaller than that described in Mrs. Gerba's deed, yet Mrs. Gerba proposes to convey to him the same lot as was conveyed to her. One of the objections raised by the defendant title. I am obliged to advise an order denying nothing in the way of a specific performance of the prayer of the petition. GERBA V. MITRUSKE. the agreement, and I will advise a decree to that effect. The details will have to be settled at the time of the settlement of the decree. Thomas Brown, of Perth Amboy, and Free (Court of Errors and Appeals of New Jersey. man Woodbridge, of New Brunswick, for apMarch 1, 1915.) A vendor is entitled to a decree of specific performance, where time of performance is not of the essence of the contract, if he can, at the time of the decree, give a clear title, though he could not at the time fixed by the contract for the transfer of the title or when the bill was filed. [Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 233-244; Dec. Dig. 92.] 2. SPECIFIC PERFORMANCE SENCE OF CONTRACT. 93-TIME AS ES pellant. Adrian Lyon, of Perth Amboy, for appellee. GUMMERE, C. J. By the bill in this case the complainant, Mary Gerba, sought the specific performance of a contract made by her and the defendant for the sale of certain lands to him owned by her, and located set up by the answer was that, at the time of in the city of Perth Amboy. The defense the filing of the bill, the complainant was unable to make a good title, by reason of the fact that there was then in existence a prior Time is not of the essence of the contract, valid agreement made by her with one Kish as regards right of the vendor to specific per- for the sale of the same premises, which had formance when able to give clear title, though unable to give it at the time fixed by the con- been duly recorded; and, second, that the tract for transfer of the title, it not having been building upon the lot which was the subject expressly made so by the contract, and nothing of the agreement extended beyond the propin the circumstances indicating time of performance was considered a matter of impor- erty lines of the complainant, and upon lands tance, the purchaser's principal inducement for belonging to a stranger. The agreement making the contract being permanent possession sought to be enforced was made on the 27th of the premises, which he was already occupying as lessee, and he having remained undis- day of September, 1911, and provided for the turbed in the possession till he abandoned it aft- conveyance of the property by a deed of er the filing of the bill for specific performance. general warranty, free from all incumbranc[Ed. Note. For other cases, see Specific Per-es, on or before the 1st day of November then formance, Cent. Dig. §§ 245-248; Dec. Dig. 93.] Appeal from Court of Chancery. Suit by Mary Gerba against Mike Mitruske. Decree for complainant, and defendant appeals. Affirmed. next ensuing. The agreement between the complainant and Kish was entered into on the 11th day of September, 1911, was recorded on the 17th day of October of that year, and was to be performed on the 24th day of that month. The present bill was filed on the The following is the opinion of Vice Chan- 29th of December, 1911. The defendant's cellor Howell: answer was not filed until July 28, 1913. The 116th section of the act relating to convey-nent possession of premises which he was ances (Comp. Stat. 1573) provides that every already occupying as lessee, and he remained agreement for the sale of land thereafter undisturbed in that possession until the 1st recorded shall be absolutely void as against of April, 1912, three months after the filing subsequent judgment creditors of the vendor, of the bill. We conclude, therefore, that the and as against subsequent purchasers and existence of the Kish agreement at the time mortgagees for value of the lands, unless the of the filing of the bill afforded no ground vendee, within three months after the date for refusing the complainant the relief which fixed in such agreement for its consumma- she sought, in view of the fact that it had tion, shall commence suit for the specific become null and void as to the defendant performance of the said agreement, or for its prior to the time of the making of the decree. rescission. By force of this statutory provision the agreement between the complainant and Kish became void on the 24th day of January, 1912, so far as subsequent purchasers were concerned, unless Kish on or before that day commenced suit as required by the statute. This he did not then do, or at any time thereafter; and so, although his agreement was in force at the time of the filing of the bill, it had become null and void as to the defendant before the filing of the latThe hearing in the Court of Chancery resulted in a decree directing per ter's answer. formance of the contract; and from that decree he now appeals. [1, 2] The principal question presented by the appeal is whether a decree compelling the defendant specifically to perform his contract can be legally justified, in view of the fact that, at the time fixed by the contract for the transfer of the title, and even when the bill was filed, the land was incumbered by the prior agreement. The prevailing rule with relation to cases of this kind is that where the time of performance is not of the essence of the contract, the complainant is entitled to a decree, if a clear title can be given by him at the time of the making thereof. Oakey v. Cook, 41 N. J. Eq. 350-364, 7 Atl. 495; Moore v. Galupo, 65 N. J. Eq. 194, 55 Atl. 628; Agens v. Koch, 74 N. J. Eq. 528, 70 Atl. 348. The rights of the parties in the present case must therefore depend upon whether time was of the essence of this particular contract. We think it was not. As a general rule, in equity time is not deemed to be of the essence of the contract unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract; and so equity will enforce the specific performance of agreements after the time fixed for their performance has been suffered to pass by the party asking for the intervention of the court, unless the facts submitted show that the parties to the contract intended that time so fixed should be of its essence. Huffman v. Hummer, 17 N. J. Eq. 263; King v. Buckman, 21 N. J. Eq. 599. Our examination of the facts in the present case discloses nothing to indicate that the time of performance was considered a matter of importance by either of the parties, but rather the contrary, for when the contract was made the principal inducement for making it, so far as the defendant was concerned, was the perma As to the second defense set up in the answer, we are entirely content with the disposition of it made by the court below, and have nothing to add to what was said by the Vice Chancellor in the memorandum opinion filed by him. The decree under review will be affirmed. LIGHTCAP et al. v. LEHIGH VALLEY R. CO. (Supreme Court of New Jersey. May 6, 1915.) (Syllabus by the Court.) MUNICIPAL CORPORATIONS 822 TRIAL 296-DEFECTIVE SIDEWALKS-INJURY TO PEDESTRIAN REFUSAL OF INSTRUCTION – CURE OF ERROR. The plaintiff was injured by falling upon a public street caused by ice which had formed there by the freezing of water which had run upon the sidewalk from the melting of snow lying upon the defendant's land. The plaintiff offered testimony from which an inference might be drawn that some snow had been brought upon the premises which had not natuThe court was asked to rally fallen there. recover, it must be shown that the snow was charge that, in order to permit the plaintiff to brought upon the premises from the sidewalk or from off the premises, and that the mere paths on the land or roadway will not entitle shoveling of snow on the premises to make the plaintiff to recover, which request the trial court refused. Held, that this was error, and that it was not cured by the instruction, "It is permit and allow this snow to be shoveled and for you to decide whether the defendant did accumulated on this property," for it was not an adequate substitute for the defendant's specific request. [Ed. Note.-For other cases, see Municipal Dig. 822; Trial, Cent. Dig. §§ 705-713, 715, Corporations, Cent. Dig. $$ 1758-1762; Dec. 716, 718; Dec. Dig. 296.] Appeal from Circuit Court, Warren County. Action by Ava Lightcap and her husband against the Lehigh Valley Railroad Company. From judgment for plaintiffs, defendant appeals. Reversed, and venire de novo awarded. Argued February term 1915, before TRENCHARD, BERGEN, and BLACK, JJ. Smith & Brady, of Phillipsburg, for appellant. Elinor R. Gebhardt, of Clinton, for appellees. BERGEN, J. The defendant is the owner of a tract of land adjacent to a public street in the town of Phillipsburg. This street was laid out by the municipal authorities, and |