posited in this court, and which but for the attachment would have been turned over to the receiver for the petitioner to be credited as a payment on his judgment and execution against William S. Harris, is justly the petitioner's and of right should be paid over to him; that Mr. Hibbard, as receiver, has neglected and failed to make any effort to have the sum withdrawn from this court for the petitioner's benefit, and he therefore prays that an order be made directing the clerk to pay to him, Mr. Johnston, the sum of $978.87, with its accumulations, or such other order as shall seem proper.

that its disclosure was a matter of great difficulty to the petitioner, and involved the expenditure of a very large amount of study, time, and proofs, and the raising of novel and difficult questions of law; that the report of the referee upon the proofs was duly confirmed, and the Supreme Court of New York made an order July 28, 1902, holding Mrs. Harris guilty of contempt of its order of July 11, 1900, and fining her the amount of the judgment and various costs and expenses of the contempt proceedings, amounting in all to the sum of $1,908.08, and further ordering that she be committed until she pay the Upon the filing of this petition, an order fine or until she pay all of the fine except was made upon all of the defendants, being the amount of the judgment and vacate the Omri F. Hibbard, receiver, William S. Har-attachment; that all proceedings taken by ris and Elizabeth J. Harris, his wife, to show the petitioner Mr. McCoy in obtaining and cause why the prayer of the petition should protecting the judgment and the orders of the not be granted. In the meantime Walter I. Supreme Court of New York and the deed of McCoy, Esq., an attorney and counselor at Mr. Harris to Mr. Hibbard, receiver, under law of the state of New York, residing in which Mr. Johnston now claims the fund in this state, filed a petition in this cause, in this court, were taken by the petitioner as which he avers that the judgment, execu- attorney at the instance and employment of tion, supplemental proceedings, order of the Mr. Johnston and for his benefit; that the Supreme Court of New York appointing Omri petitioner has received from Mr. Johnston F. Hibbard receiver, and compelling the ex- over and above his necessary disbursements ecution and delivery of the deed by William in the proceedings the sum of $30.32, and has S. Harris to him, the receiver, were all pro- received no other fee for or on account of cured and brought about by the petitioner as his services, and he prays that he may be a practitioner at law of the Supreme Court made a party to this cause for the purpose of New York at the expense of much time of his application, and that he may be perand labor; that just before the delivery of mitted on the hearing of the petition of Mr. the deed referred to the defendant William Johnston to make proof of the nature and S. Harris, or those acting in his interest and value of his services, and that he may be for his benefit in the name of his wife, Eliza- decreed to have a lien for the payment of his beth J. Harris, acting through Mr. Coffield, services in procuring the fund in court upon her sister's husband, procured out of the Su- any and every part of the fund that may be preme Court of this state as a means of de- found to be payable to Mr. Johnston, and feating the order to convey the writ of at- that an order may be made that such tachment referred to in the petition of Mr. amount be paid by the clerk to him or to his Johnston, under which writ the right, title, solicitor. Upon the filing of this petition an and interest of William S. Harris in the prop-order was made upon William Johnston to erty referred to was attached; that for the purpose of procuring the judgment of the Supreme Court of New York and the orders and deed made thereunder, and to compel Mrs. Harris to discontinue the attachment suit, brought as a pretense for her benefit, but really for the purpose of defeating the orders and deed mentioned, the petitioner, Mr. McCoy, instituted, carried on, and brought to a successful conclusion proceedings in the Supreme Court of New York to attach Mrs. Harris for contempt of that court; that the matter was referred to a referee of that court to take proofs and report his conclusions; that it became necessary to take a large amount of testimony before the referee to controvert and disprove the testimony of Mrs. Harris and her husband and others, to the effect that the attachment suit was brought by her without knowledge on her part of the judgment and order thereunder of the Supreme Court of New York; that the fraud thus perpetrated upon the order of the Supreme Court of the state of New York

show cause why the prayer of Mr. McCoy's petition should not be granted, and both petitions came on to be heard together.

The petition of Mr. Hibbard, filed on July 2, 1902, avers that the master to whom the cause was referred reported that he, Mr. Hibbard, had only a life estate in the premises sought to be partitioned, because of the omission of words of inheritance in the deed to him, and the use in the conveyance after the petitioner's name of the words "successors and assigns"; that under the laws of the state of New York where the deed was drawn, executed, and delivered, and under the well-settled practice of attorneys having to do therewith, the words of limitation of the estate, which are properly used to convey all the estate, including one of inheritance, of a judgment debtor to a receiver appointed in proceedings supplemental to execution, are those used in the deed to the petitioner; that the order of the Supreme Court of New York in the proceedings supplemental to execution required Mr. Harris to convey his entire es

ed and modified to the extent indicated, and no further. The order amending the decree in this cause operated, in effect, to reform the deed given by the defendant William S. Harris to the defendant Omri F. Hibbard, receiver; the actual reformation of the conveyance being entirely unnecessary because the land had been sold by virtue of the decree and a good title made to the purchaser, the

that it was in obedience to that order that, of dower of the defendant Elizabeth J. Harthe deed was made; that to the best of the ris therein, and the decree was thereby openknowledge and belief of the petitioner both parties to the deed fully intended that it should convey, and fully believed that it did in fact convey, to the petitioner the entire estate of Mr. Harris in the premises, and he prays that he have leave to show that under the deed as it stands he is entitled to onehalf of the proceeds of sale subject to the inchoate right of dower of Mrs. Harris, and that, if under the deed it should be determin-proceeds of sale taking the place of the land ed that he is not so entitled, he have leave to take proper proceedings to reform the deed so as to carry out what may be shown to have been the purpose and intention of the parties to it, and for further or other relief. On the filing of this petition, an order was made that the complainant show cause on July 7, 1902, why the relief prayed should not be granted.

for the purpose of distribution, and in making that distribution the question of the character of the title of Mr. Harris, as it stood at the time of the sale, was only incidentally, though necessarily, involved. On the hearing before me counsel for Mr. McCoy, who, in turn, is counsel for Mr. Hibbard, pressed for an order that the fund be turned over to Mr. Hibbard. This contention in my opinion is sound, and should prevail. Mr. Johnston cannot complain of it, as by his own sworn petition it is made to appear that Mr. Hibbard was appointed in his behalf, in aid of his execution, issued upon his judgment, recovered against Mr. Harris in the state of New York. Mr. McCoy, as I understand it, does not object to this disposition of the matter, as he is the attorney of both Mr. Johnston and his receiver, Mr. Hibbard; his, Mr. McCoy's petition having been filed as a precautionary measure for the purpose of protecting himself, and having this court adjudge what he is reasonably entitled to have and receive by way of compensation for his services to Mr. Johnston in the New York Supreme Court, and to have it awarded to him by this court out of the fund in case it be or

ston without the intervention of the New York receiver.

The decree for sale, which was filed on May 22, 1902, confirmed the master's report, and ascertained, adjudged, and declared that the rights and interests of the parties to this suit in the premises sought to be partitioned were as follows: The complainant was seised in fee of an equal undivided one-half part of the premises. The defendant Omri F. Hibbard, receiver, was seised of a life estate in an equal undivided one-half part of the premises, subject to the inchoate right of dower of the defendant Elizabeth J. Harris, wife of William S. Harris, therein. The defendant William S. Harris was seised of an equal undivided one-half part of the premises, subject to the life estate of the defendant Omri F. Hibbard, receiver, therein, and also subject to the inchoate right of dower therein of his wife, and the defendant Elizabeth | dered to be distributed directly to Mr. JohnJ. Harris was seised of an inchoate right of dower in an equal undivided one-half par of the premises. On July 9, 1902, an order The view I take of this matter renders it was made that the defendant William S. unnecessary for me to find what upon the Harris show cause on July 15, 1902, why the testimony is the value of Mr. McCoy's servabove-mentioned decree should not be opened ices, or how much Mr. Johnston paid him and amended so that the right and interest on account of services and expenses in the of the defendant Omri F. Hibbard, receiver, New York proceedings. I would not hesitate should be by final decree ascertained, ad- for one moment to make this ascertainment judged, and declared to be that he was seised and adjudication as between Mr. McCoy and in fee simple of an equal, undivided one-half Mr. Johnston, were it not for the fact that part of the premises subject to the inchoate I am firmly convinced that the law of this right of dower of the defendant Elizabeth J. Harris, the wife of William S. Harris. This order to show cause and also the one last above mentioned it would seem were heard together on July 15, 1902, and on that date an order was filed in which it was adjudged and decreed that the report of the master stand ratified and confirmed, except as to the rights and interests of the defendants Omri F. Hibbard, receiver, and William S. Harris, and that the complainant, Charles F. Harris, and the defendant Omri F. Hibbard, receiver, were each seised of an undivided one-half part of the premises, and that the undivided one-half to which Mr. Hibbard was

state recognizes Mr. Hibbard, receiver, as the person entitled to administer the fund which is in this court in this cause; and that, too, under the direction of the court that appointed him, namely, the Supreme Court of the state of New York.

In Bidlack v. Mason, 26 N. J. Eq. 230, it was held that on principles of comity the aid of this court will be extended to a receiver of a foreign corporation seeking to obtain possession of property of the corporation here, as against the officers of the company, who may be endeavoring by fraud or subterfuge to withhold it. In the case just cited a suit had been brought in the Supreme Court

fund. While I hold that, on the record before | corporation in respect to the lands of the deme and the arguments made, the fund should fendant was duly made and presented to the go to the receiver, the question must not, as receiver, who disallowed it as a preference. it cannot legally, be considered settled against Hence this appeal. any one not before the court and consequently unheard. As to such a party the question is an open one. And it may be, too, that the attachment will have to be vacated in the court out of which it issued. These suggestions are for the consideration of counsel.

(76 N. J. E. 171)

GALLAGHER v. TRUE AMERICAN
PUB. CO.

The solution of the question here presented depends upon whether the law will take account of the fraction of a day. Our act concerning judgments (1 Gen. St. 1895, p. 1841, § 2) provides that a judgment shall bind lands from the time of the actual entry thereof on the records of the court. Section 68 of our present corporation act (Revision 1896 [P. L. pp. 277, 299]) provides that, upon the appointment of a receiver, the property of an insolvent corporation forthwith vests in

(Court of Chancery of New Jersey. Jan. 2, him; and therefore the property of the de

1909.)

1. TIME (8 11*)-FRACTIONS OF A DAY.

The law will take account of the fraction

of a day when justice so requires.

[Ed. Note. For other cases, see Time, Cent. Dig. § 53; Dec. Dig. § 11.*]

2. JUDGMENT (§ 772*)—LIEN-PRIORITY.

If, on a day when this court adjudicates that a corporation is insolvent and appoints a receiver thereof in whom title to the company's real and personal property thereupon vests, a judgment is recovered and entered against the corporation at an earlier hour, the judgment is to be paid out of the proceeds of the sale of the company's land as a preferred claim, because the judgment was a lien upon the land at the time of the appointment of the receiver. Doane v. Milville Mutual Ins. Co., 43 N. J. Eq. 522, 11 Atl. 739, distinguished."

[Ed. Note. For other cases, see Judgment, Cent. Dig. & 1329, 1331; Dec. Dig. § 772.*] (Syllabus by the Court.)

Bill by Charles H. Gallagher against the True American Publishing Company. From a decision of the receiver of defendant corporation refusing a preference of a claim, the Trenton Trust & Safe Deposit Company appeals. Reversed.

Charles E. Gummere, for appellant., James & Malcolm G. Buchanan, for receiver.

fendant company vested in the receiver on ered. Qualification by giving bond and takthe day the appellant's judgment was recoving the statutory oath is only necessary to enable the receiver to act. It is not a prerequisite to the vesting of title in him. Further, the corporation act in section 86 (P. L. 1896, pp. 277, 304) provides that, upon distribution by the receiver, judgment creditors shall be preferred when the judgment has not been by confession for the purpose of preference.

In Doane v. Milville Mutual Ins. Co., 43 N. J. Eq. 522, 11 Atl. 739, it was held in this court that a bona fide judgment creditor is entitled to preference in payment of general creditors of an insolvent corporation, but that such preference does not include a judgment obtained against the company on the day when the court took control thereof by issuing an order restraining the company from transacting business. This proceeded upon the principle that the law knows no parts of days. This case was reviewed in the Court of Errors and Appeals and reversed, but not upon the question to which reference has just been made. In this case (Doane v. Milville Mutual Ins. Co., 45 N. J. Eq. 274, 282, WALKER, V. C. On April 28, 1908, at 10 17 Atl. 625) the Court of Errors and Appeals minutes after 4 o'clock in the afternoon, a remarked that it was in accord with prevar judgment was recovered in the Supreme lent judicial views to hold that judgment Court of this state against the defendant creditors should be preferred so far as they company, impleaded with others. The suit had acquired liens, and if real estate had bewas on a promissory note of which the de- come subject to judgment, or if personal fendant company was the maker, and conse- property had been bound by delivery of an quently the party primarily liable. The oth- execution to the sheriff, the rights thus creer defendants were indorsers. At 8 o'clock ated should not be disturbed. This observain the evening of the same day the bill of tion appears to modify what was held by complaint in this cause was presented to this this court in the same case regarding the court, and an order was thereupon made ap- lien of judgment creditors whose judgments pointing Edward L. Katzenbach, Esq., receiv- are recovered on the same day a bill in iner of the defendant company. The bill and solvency is filed against a corporation, and order were, according to the practice, marked the court takes control of it by the issuance filed as of April 28, 1908, the date of their of a restraining order, but does not, as I unpresentation and consideration, and were derstand it, modify the views of this court actually filed in the clerk's office the next in that case on the facts of that case which day. Mr. Katzenbach qualified as receiver on were before the court, for in that case there the 29th, the day the papers were lodged in does not appear to have been any proof as the clerk's office. A claim by the plaintiff as to the time in which the judgment was entera preferred creditor against the defendant' ed with reference to the time when the order