text:
    In re application for possession of Anna Judge.
    [Argued March 27th, 1920.
    Decided May 19th, 1920]
    1. Baxental guardianship by nature -and for nurture is not assignable except by statutory provisions.
    2. Where a mother gave her child to- another, she being in- destitute- and friendless circumstances at the time, and an absolute 'a-md formal surrender not being agreed up.on at the time, and, -subsequently, reclaims her child, being in circumstanices to- properly oare- for -and support her, she will be granted possession of the chi-lid unless thereby the well-being of tire child is jeopardized. ¶11€ infant’® welfare, all matters considered, is paramount anid compelling in the eyes of the chancel,tor as parens patria.

    3. Hire petitioner, being a minor, cannot sue- -out a writ of habeas carpus, but the chancellor will, in a proper case, appoint a next friend to do so.
    On habeas corpus.

      Mr. W. Holt Apgar, for the petitioner.

      Mr. Eric H. Jentz, for the respondent.
   Backes, V. C.

This habeas corpus was sued out by a mother to recover her two-year-old child. The mother was married at fifteen to a worthless fellow who deserted her shortly afterwards. She was destitute and friendless when the baby came, and in her despair gave it to Mrs. Grice, the respondent, to raise, when it was six weeks old. Shortly afterwards the mother, quite naturally, repented, but Mrs. Grice had disappeared from Baltimore, where these tilings took place, and no trace of her or the child could be found until just before this writ wus taken out, when they were located at Jersey City. The indications are that Mrs. Grice, fearing a change of heart on the part of the mother, left with the child, to conceal its whereabouts, and to thwart any effort to regain its custody or to make the attempt difficult. I incline to this view because of the circumstances of Mrs.- Grice leaving.her home and husband in Baltimore, where he was regularly employed, months in advance of his return to Jersey City, their former place of residence, and this without intimation to the mother. There she palmed off the baby as her own flesh and blood. Her explanation of her hasty and covert departure, that she became homesick and did not like Baltimore nor its people, is, to my mind, a shallow pretence.

When the child was' given into the care of Mrs. Grice a formal and absolute surrender had not been agreed upon. That that was the aspiration of Mrs. Grice,- and the contemplation of the distracted mother,,is believable, but the juncture had not been reached. The two had consulted the authorities and were informed that under the laws of Maryland there could be no surrender until, six months after birth, and the matter was left in abeyance. Had there been a renunciation in fact, it would not.have been binding in law. The parental guardianship, by nature and for nurture, is not assignable. Mayne v. Baldwin, 5 N. J. Eq. 454; In re Williams, 77 N. J. Eq. 478. Transfer by legal adoption is a statutory exception. But were the law otherwise, a surrender .could not, in conscience, be upheld because of the physical and mental disparity between the two women. It would be monstrous to hold this sick and sorely tried girl-mother to the supreme sacrifice. In its legal and moral aspects the mother’s privilege was in nowise prejudiced by the negotiations with Mrs. Grice, which, at most, were tentative, and though the latter has by unstinted care and devotion created a reciprocal relation of keenest love duel affection between her and the child, and though heartaches and sorrow will follow a separation, she must yield to the superior and natural right of the mother unless thereby the well-being of the child will be jeopardized. Instances may arise where, in attachments of this kind, courts will not interfere, but it will be found, upon an examination of the reported cases, that the parent’s right will not 'be denied unless the foster alliance was protracted, and acquiesced in in a spirit of abandonment, and a severance will be disadvantageous to the child. That is not the case here. While much sympathy is due Mrs. Grice we must not be unmindful that .her plight is self-imposed, nor of the infinite grief her rash conduct brought to the mother.

The infant’s welfare, all matters considered, is paramount and compelling in the eyes of the chancellor as parens palria. The parental right, however, is never lost sight of as an influential and determining- factor. If in a contest as here, between a parent and a stranger in possession, for • the custody of an infant of tender years there is equality as to character, condition, habits and surroundings of the claimants, the natural right will prevail; mere material advantage to the child will not count against the inherent right. The strict legal right will not'be subordinated'unless circumstances of weight- and importance connected with the welfare of the child exist to overpower it, and these circumstances must be such as to imperil the personal safety, morals, health or happiness of the child. This is the doctrine of the court of errors and 'appeals laid down in Richards v. Collins, 45 N. J. Eq. 283. The authorities are uniform in maintaining the natural relationship wherever consistent with the well-being of the child. Mayne v. Baldwin, supra; Baird v. Baird, 21 N. J. Eq. 384; Griffin v. Gascoigne, 60 N. J. Eq. 256; Hesselmam v. Haas, 71 N. J. Eq. 689. The latest expression is by Mr. Justice Minturn for the court of errors and appeals in Ziezel v. Hutchinson, 109 Atl. Rep. 300. In Warnecke v. Lane, 75 Atl. Rep. 233; Kopcinski v. Richardson, 94 Atl. Rep. 32; Cole v. Cole, 89 N. J. Eq. 381; 104 Atl. Rep. 830, the parental rights were subordinated to the child-welfare principle, but in each instance the award to others was provisional and until the restoration of parental fitness.

Winans v. Luppie, 47 N. J. Eq. 302, relied upon by counsel for Mrs. Grice, is not applicable in principle to the question under discussion. That case involved the validity of a statutory adoption granted by the orphans court and the point considered and decided was that the surrender by the mother of her infant child to the parents by adoption was an abandonment within the statutory sense, and that her consgnt was not legally necessary to the adoption.

Now as to the relative fitness of the claimants. Mrs. Grice is a housewife, without children. Her grief is that she can bear none, and her anguish has all the more intensified her solicitude and love for the foster ehikR Her husband is a railroader with substantial wage, a man of good character, and whose attachment and fondness for the youngster is second only to that of his wife. Their home is comfortable, and they are in every way fit to raise the child as becomes people in their station in life. On the other hand, tibe mother in appearance and deportment is a splendid type of young womanhood, of unblemished character and reputation, clean in thought and pure of speech. She has religious training and church affiliations. These qualities and virtues are vouched for by relatives and acquaintances, and stand unquestioned. Her home is with her aunt in Baltimore, and the surroundings are wholesome, and the child is to be with her. She is employed as a saleswoman in a florist store at twenty dollars and more a week, an amount sufficient to support the two. During her enforced absence in the daytimre, from eight until five o’clock, the child will be in the care of the aunt, who has small children of her own, and of her mother, the grandmother of the petitioner. The daily absence of the mother is argued as an inconvenience and discomfort to the child, not to be suffered if it remains with the Grices. That may be, but the mother’s handicap is the child’s misfortune, for which there will-be ample compensation, presently in an awakening realization of its real mother’s care, and later in life, in the contentment and happiness that will flow to both from the reunion.

And as to the change from the foster parents to the real mother; that will undoubtedly distress the child for a time, but it will not involve its welfare. In its new environment the past will soon he blotted from memory.

Counsel also stresses the concern of the child if, perchance, the mother should be overtaken by protracted illness, or should die, or lose her position. The answer is that like calamity might follow if similar misfortunes should overtake either of the Grices. Their position in life, socially and financially, affords no immunity to possible dire consequences.

The petitioner is a minor. She cannot sue out a writ of habeas corpus to relieve another, nor even to release herself. Upon her appeal to the chancellor he will, in a proper case, appoint a next friend. As there has been no objection on this score an order may be entered amending the petition by adding the clerk of the court as next friend.

1 will advise an order awarding the child to the mother.


source: Caselaw Access Project

author: Griffin, V. C.

license: Public Domain

text:
    Sarah A. Doherty v. Egan Waste Company.
    [Decided May 21st, 1920.]
    1. Where lots are shown on a map in a block laid down as two hundred feet by four hundred feet, and- as actually laid out on the ground the block is upwards of two hundred by four hundred, by means whereof the map and ground dimensions differ, and the entire» block along the street upon which the property' in question fronts has located thereon contiguous buildings which hare been erected a great many years.. none of which can be said to stand precisely on the lot as described in the deed therefor, and there has existed for upwards of fifty years a building in the middle'of the block next adjoining the premises in question, to the east, which has been used by surveyors as a fixed monument for locating other properties, which building and the one adjoining to the east make a party wall the division line, and every owner of lands to the west of said monument has at least the quantity of land called for in his deed, and every owner to the east of said monument has the quantity of land, or more than that, called for in his deed, excepting one who is short about one inch, which is included in the land of his neighbors — Held, 1. That the owners in .the block fronting on said street were compelled to, and did, resort to practical location, and, by erecting their buildings, acquiesced in the locations thus established. 2. The facts in the case plainly show if defendant takes the property it will not be exposed to litigation, there being no legitimate question or doubt, either of law or fact, affecting the title.
    2- Where the building in question encroached to a slight extent on the adjoining' property, and the cost of'making it conform to the truevline is trifling, the. decree should be made with abatement of part of purchase price; but as the building, since the commencement of the suit, has been destroyed by fire, no abatement should be made.
    3. Where the defendant was in possession, and time is not of the essence of the contract, and the encroaching building is destroyed by fire pending the suit, the defendant should be decreed to perform.
    On pleadings and proofs.

      Mr. James B. Erwin, for the complainant.

      Messrs. Queen & Stout, for the defendant.
   Griffin, V. C.

The bill in this canse is filed to compel specific performance of a contract for the sale of lands in Jersey City known as lots .35 and 37 in block 16 on Mangin’s map. of 1804, being also lots 43 and 45 in block 66 on the Baeot map of 1861.

The contract is dated January 10th, 1917; title was to pass May 1st, 1917. The defendant refused to take title. The bill was filed August 15th, 1917. The building was totally destroyed by fire December 5th, 1917. The defendant became tenant in possession of the premises in 1909, and continued in possession, carrying on its business, until ousted by the fire, and thereafter collected $2,000 insurance covering its interest under the contract.

Defendant’s objections are:

1. That the premises, as actually located, are one foot and twelve hundredths (112/100) feet east of the true line called for by the deed.

2. That, assuming the location to be correct, the building oil the lands on the westerly side line from a point beginning thirty-three and seventy hundredths feet from the street encroaches on the adjoining property to the west one and one-half inches at the beginning point,- and one inch in the rear.

As to the first point:

According to the Mangin map, the block is two hundred feet by four hundred, being two hundred on Washington and Greene streets, and four hundred on Morris. It contains thirty-two. lots, of the dimensions of twenty-five by one hundred feet each. Washington street is laid down eighty feet wide, and Morris and Greene streets each sixty feet. As actually laid out on the land, Greene street is sixty and eight hundredths feet in width at the corner of Morris street.

The length of the block, measured along Morris street, as built upon, is four hundred and one and forty-two hundredths feet, giving a surplus of one and forty-two hundredths feet, one foot of which is in the two lots next Greene street; twelve hundredths of a foot is contained in the premises in question in front, and twenty hundredths of a foot in the rear; and thirty hundredths of a foot is included in the lots between Washington street and the westerly line of the premises in question.

All of these lots fronting on Morris street were, on the date of the contract, covered by buildings, each of which was in actual contact with the one next adjoining, all of which had been erected a long time, and none of which may be said to comply 'with the liares of the maps, excepting the two next adjoining the building on the cornea* of Washington and York streets. These two, with the one on the corner, should have a frontage of fifty feet, but the frontage is actually fifty and fifty-two hundredths feet, due to the fact, as the survey shows, that the corner house extends fifty-two hundredths of a foot into the street as laid out.

The remaining lots lying between Washington street and the* premises in question, in their order running easterly from Washington street, with their width by deed, and as actually built upon as shown by suawey, are as follows: Lot 59, Bacot map (beiaag rear part of lots 19, 21, 23, Maaagin map) by deed twenty-five feet, building twenty-five and twenty-one hundredths feet; lot 57, Bacot map (rear part of lots 19, 21, 23, Mangin map) by deed twenty-five feet, building twenty-four and ninety-one hundredths feet (deficiency less than an inch); lot 55, Bacot map (47, Mangin), by deed twenty-five feet, building twenty-five aaacl eighteen hundredths feet; lots 51 and 53, Bacot map (43 and 45, Mangin map) each twenty-five feet by deed, and each building is twenty-five feet; the next building covers parts of lots 47 and 49, Bacot, and 39 and 41, Mangin — by deed twenty-seven and forty-two hundredths feet, building twenty-seven and forty-two hundredths feet; remaining part of lot 47, Bacot, and 39, Mangin — by deed twenty-two and fifty-eight hundredths feet, building twenty-two and fifty-eight hundredths feet. Thus every lotowner between Washington street and the premises iaa questioai has at least the width called for by his deed, excepting the case of lot 57, where there is a deficiency of less than one inch, which was taken by his neighbors, whose buildings are wider than their lots described in their deeds. Turning to the lots east, between the premises in question and Greeaae street, every owner has all the land called for by deed, and some have more. Thus, the entire block is built upon with each building in contact with its neighbor, and every owner fronting on Morris street has at least the quantity of land called for in his deed, excepting the. owner of'lot 57, above referred to.

In the conveyances of the various lots the beginning point, in the descriptions where metes and bounds are given as to lots west of the centre line of the block, is the southeast corner of Washington and Morris streets, and, as to lots east of the centre line, the southwest comer of Morris and Greene streets. In some instances, on both sides of.said centre line,1 the lots are merely described by lot and block numbers on Mangin’s map.

The centre line of the block, with or without the surplus, runs through the McGovern property. The easterly line of his property runs through the centre of a party wall standing partly on his premises and those of Sowukin, to the east, whose lands abut rife premises in question.

The description in the deed to McGovern (made in 1892) begins on the southerly side of Morris street one hundred seventy-five feet easterly of the southeasterly corner of Washington and Morris streets, being in line with the easterly line of lot 43 on the Mangin map. The first course is then described as running along the easterly line of lot 43 on Mangin’s map. After running several other courses, the fifth and sixth read as follows:

“Thence northerly and parallel with. Washington street to .and through the centre oí a party wail -sbamdlmg partly :on the .premises hereby conveyed and partly on 'the premises next adjoining, easterly sevenity-five feet to the southerly line of Morris street; fchen.ee westerly along the southerly line of Morris street .twenty-seven feet five inches to. ithe place of beginning.”

This description, when it refers to the centre of the party wall as being “one hundred seventy-five feet, plus twenty-seven feet five inches from the comer,” is erroneous'in that, as actually built upon, the centre line of the party wall, by reason of the surplus, is thirty hundredths of a «loot farther east.

But an important feature of the description is that this easterly line of lot 43 is made to coincide with the westerly side wall of the’ building, and ties this easterly line twenty-seven feet five inches (27.42 feet) from the centre of the party wall.

If, therefore, the distance of one hundred seventy-five feet is accepted, the property intended to he conveyed is not correctly described; but if rejected as false, and the fixed monument, the party wall, is accepted as correct, then McGovern gets what he bargained for and the other owners will not he disturbed in their possession.

Turning to the Sowukin property, being the easterly part of lot 39, which abuts the premises in question on the west, the centre line of this same party wall mentioned in the McGovern deed is made the westerly boundary of his property. The beginning point in his deed is placed in the southerly line of Morris street one hundred seventy-five feet westerly from the southwesterly corner of Morris and Greene streets. The first course is described as running along the easterly line of lot 39 on Mangin’s map, which is the dividing line between Sowukin and the premises in question. The third and fourth courses read as follows:

“CDhence ruOTth&i'iy and parallel with Ereeme «ftreet, ¡to, through and beyond the centre ¡of a party wall standing partly on. the premises hereby conveyed and partly on, ¡the premises next adjoining "westerly thereto seventy-five feet to the southerly side of Morris street..; thence easterly along the southerly side of Morris street twentytfcwo feet seven inches to the beginning.”

What has been said as to the McGovern property may be repeated as to this. The centre of the party wall is not one hundred seventy-five feet plus twenty-two and fifty-eight hundredths feet from Greene street as the block is laid out and actually built upon, but is one foot and twelve hundredths (1 12/100) farther west.

By these two descriptions, McGovern and Sowukin acquired title to lots 39 and 41, being the two lots in the centre of the block fronting on Morris street, and by these conveyances fix and establish the side lines of these lots a certain number of feet east and west of the centre line of the party wall, and are in possession of the lands thus described, which are actually built upon in accordance with such descriptions.

Mr. Dunham, a prominent civil engineer, who made a great many surveys and locations in this block, says that the building on Sowukin’s property has been used since at least 1868 as a fixed monument to locate the various properties in the .block; that, by reason of the existing surplus, the lines of the various properties cannot be determined by reference to the maps alone; that resort had to he made to practical location, with a view to giving to every owner the quantity called for in his deed; that the same situation substantially exists, generally, as to lots and blocks on Mangin’s map.

It must be quite apparent from the foregoing facts, that the owners of lots in this block fronting on Morris street, were confronted with conditions that, in the very nature of things, prevented them from establishing the lines of their properties by map, and were therefore compelled to, and did, resort to a practical location, each taking the quantity to which he was entitled by deed, and conceding the same to his neighbors.

The only person who could attack the complainant’s title is Sowukin. Is he in a position where he even has a colorable right? In the deed under which he claims, his westerly side line is described as running through the centre of a party wall, which has been a monument for upwards of fifty years. His easterly side line is described as lying twenty-two and fifty-eight hundredths feet east of the centre line of this party wall, which side line is also described as being the easterly side line of let 39 on Mangin’s map, which also, as a matter of fact, is the westerly side line of lot 37 on Mangin’s map, one of the lots In question.

Hpon the foregoing facts the lines of the property as established by practical location should he accepted as establishing the true boundaries of the premises in question, and the'other descriptions inconsistent therewith should he rejected as false. Jackson v. Perrine, 35 N. J. Law 137; Spottiswoode v. Morris and Essex Railroad Co., 61 N. J. Law 322 (339); affirmed, 63 N. J. Law. 667; Alt v. Butz, 81 N. J. Law 156.

The foregoing cases were decided at law, where all persons interested were parties and were bound by the judgment. Here, the persons who might assert against the title are not parties to the suit, and will not he hound by the decree made herein; therefore, the defendant argues, that if compelled to take the property he will be exposed to litigation, and therefore this court should not decree specific performance. Van Riper v. Wickersham, 77 N. J. Eq. 232; Doutney v. Lambie, 78 N. J. Eq. 277 (which cases were decided by the court of errors and appeals); Kohlrepp V. Ram, 79 N. J. Eq. 386.

in this latter case, Yice-Chancellor Garrison said:

“I incline to the opinion that, in view of two recent decisions in the court of errors and appeals, the court of chancery has gone farther than it should go in deciding doubtful questions of law; and, of course, is fully vindicated, and justified in not attempting to decide an issue of fact affecting the title where proof of the facts is not of record or always available to use. The two cases to which I refer are Van Riper v. Wickersham (1910), 77 N. J. Eq. (7 Buch.) 232, and Doutney v. Lambie (1910), 78 N. J. Eq. (8 Buch.) 277. Under the language of these cases, this court should not force a title upon the defendant where there exists a legitimate question or doubt, either of law or of fact, affecting the title.”

It is inconceivable how, under the facts of this case there is even a remote chance of the owner of the premises in question being subjected to litigation by reason of the alleged mislocation. There is no doubt, either of law or fact, as to the title. If Sowukin, or those, claiming under him, should sue, the record of the Sowukin deed can at all times be used to show that the westerly line of Able Sowukin lot is the centre line of the party wall, and, measuring twenty-two and fifty-eight hundredths feet easterly, no portion of the premises in question is included. The location of tire centre line of this party wall may always be shown with certainty; therefore, there does not exist a legitimate question or doubt of law or fact affecting the title.

As to the second objection: The width of the premises in question actually built upon, is fifiy-two> and twelve hundredths feet (fifty feet, one and a half inches) in front, and fifty and twenty hundredths feet (fifty feet, two and four-tenths inches) in the rear.

The building, when originally constructed,, upwards of twenty-nine years ago, was used solely as a stable. After Mr. Doherty purchased it in 1891 he added a second story to the front for use as a dwelling; this was completed in 1892, and so continued down to the date of the fire. The building was a frame structure, two stories in height. It is quite apparent that in erecting the building the joists or studding forming the side were built in contact with the -side wall of the Sowukin building, without clapboards, and continued in a straight line to the rear of the building. When the rear of the Sowukin building was reached, a distance of thirty-three and seventy hundredths feet from the front, the building was clapboarded. These clapboards extended over on Sowukin’s land thirteen hundredths of a foot, -substantially an inch and a half at the rear of Sowukin’s building, and eight hundredths of a foot (about one inch) in the rear of the lot. This encroachment could readily be removed at small cost by moving the portion of tire encroaching side to the line of complainant’s lot.

This slight encroachment should not deter the court from decreeing specific performance, as the defendant would receive all the land he bargained for, and be entitled to an abatement of the purchase price in an amount sufficient to pay the cost of making the building conform to the true line. Van Blarcom v. Hopkins, 63 N. J. Eq. 466; Capstick v. Crane, 66 N. J. Eq. 341; Straus v. Norris, 78 N. J. Eq. 488 (494).

In view of the fire, it will be unnecessary to consider what this abatement should be.

As a result of the fire a situation has been created which did not exist when the bill was filed, viz., the defendant’s right to object, based on the encroaching clapboards, unless time is of the essence of the contract.

The defendant entered into possession of the premises on July 1st, 1909, under a lease given by James Doherty, the then owner, and continued in possession down to the date of the fire, on December 5th, 1917. James Doherty died in the year 1912„ leaving his will, in which he devised the premises in question! to the complainant. From the date of the above lease until May 1st, 1917, the date appointed in the contract for passing-the title, the defendant was continuously in possession of the premises as tenant of James Doherty in his lifetime, and of the complainant since his decease. Whether the relation of landlord and tenant existed after May 1st, 1917, or the defendant was in possession as equitable owner under its contract, does not distinctly appear. The defendant, however, insists that if compelled to specifically perform, it should not be charged with the payment of rent, but interest only from May 1st, 1917.

There is nothing in the written contract which makes time of its essence. There is nothing in the case which show® that the parties intended that time should be of its essence. After the 1st of May, 1917, when defendant refused to take the title, it continued in possession, carrying on its business until December 5th, 1917, as theretofore, and after the fire, collected $2,000 on a policy of insurance covering its interest. The case is even stronger against the defendant than that of Gerba v. Mitruske, 84 N. J. Eq. 141, where the facts are quite similar. My conclusion, therefore, on this point is that time is not of the essence of this contract, and the complainant was certainly in a position to perform on December 5th, 1917.

The complainant also collected $2,000 insurance moneys on a policy covering her interest in the building, which she concedes should be credited on the purchase price.

The decree will be for complainant.

On the question of costs and interest, I will hear counsel at the chancery chambers in Jersey City on June 7th next.


author: Foster, V. C.

text:
    Lizzie Michaels v. Louis Michaels.
    [Submitted April 24th, 1920.
    Decided May 10th, 1920.]
    1. Where the validity of a marriage is attacked upon the ground that one of the parties to it had a husband or wife living ait the time it was contracted, the party asserting its invalidity must not only prove the former marriage, but also that ithc former 'husband or wife was living at the time of contracting the second marriage.

      2. In the absence of proof to the contrary, the law Will presume that a man wais mot alive ’at a given time, when the consequences of his being alive at that time is that another person 'has committed a criminal act, and contain children are thereby made illegitimate.
    On pleadings and proofs.

      Mr. John W. Bostwick, Jr. (Messrs. Heine, Bostwick & Bradner on the brief), for the complainant.

      Messrs. McDermit ,& McDermit, for the defendant.
   Foster, V. C.

Complainant’s bill is filed for separate maintenance, alleging that defendant deserted her in April, 1911, and that he has since continuously abandoned her and neglected and refused to support her. Defendant’s answer denies the abandonment and that he has refused and neglected to support complainant, and claims he is under ho legal obligation to support her, and by way of counter-claim he asks for the annulment of his marriage to complainant on the ground that at the time of their marriage, she had another husband living, from whom she had not been divorced.

The facts developed on the hearing are that on March 5th, 1882, complainant was married to one William Cochran; that he deserted her shortly after the marriage; that she was a minor at the time, unable to read or write, and through her father she in due time states she engaged “a lawyer of Jersey City” to obtain a divorce for her; that she made the acquaintance of the defendant while she and her father were calling on the lawyer in connection with her divorce; that after several such calls she was taken by her lawyer into a room in some building in Jersey City, where only one man was present; that she placed her hand upon a hook and she and her father were then told that she was divorced; on leaving this room she passed Cochran in the corridor hut did not speak to him, and she has never since seen or heard from him, and she does not know if he is living or dead. On her return from Jersey City to her home in Newark, oil the date this occurrence took place, she and her lather met the defendant Michaels and informed him that she had obtained her divorce.

A search by both parties has failed to disclose any decree of divorce in favor of complainant, or any record of any divorce proceedings to which she was a party.

On October 17th, 1886, some time after complainant understood ©he had been divorced from Cochran, she married the defendant and they lived together as man and wife until April, 1911,; four children were born to thlem, and three of them are married and have children.

It affirmatively appears that defendant since April, 1911, has abandoned complainant and has neglected and refused to support her except to the extent of $5 a week.

Defendant bases his claim for exemption from liability for complainant’s support and for a decree for the annulment of their marriage upon the rule that a person i's not presumed to be dead until the lapse of seven years since his last appearance or since he was last heard of, and he contends that as complainant admits seeing Cochran in the corridor adjoining the room in which she supposed she had obtained her divorce about a year prior to her marriage to the defendant, which was about four years after her marri'age to Cochran, and as the seven-year period had not then expired, the presumption of Cochran’s death could not arise, and complainant in the absence of a divorce from Cochran was not then qualified to contract a marriage with the defendant.

The case comes fairly within the rule of Vreeland v. Vreeland, 78 N. J. Eq. 256; 79 Atl. Rep. 336, in which Chief-Justice Gummere, in delivering the opinion of the court of errors and appeals, held that, when the validity of a marriage is attacked upon the ground that one of the parties to it had a husband or wife living at the time when it was contracted, the party asserting its invalidity must not only prove the former marriage, but also that the former husband or wife was living at the time of contracting the second marriage. See also Schaffer v. Schaffer, 88 N. J. Eq. 192, 523.

In cases involving questions like the present one, there are other presumptions beside the presumption of death, which must be considered; as the chief-justice pointed out in the Tree-land Case, it is a maxim of law", that every person shall be presumed innocent of a crime until proven guilty thereof, and if this presumption prevails in the present case, then complainant would not be guilty of the crime of bigamy in marrying defendant, and defendant is not guilty of the crime of adultery in cohabiting with her for nearly thirty years as her husband, as his counter-claim in substance alleges. The law also presumes that children who have been born as the result of a ceremonial marriage are legitimate. Sparks v. Ross, 75 N. J. Eq. 550.

In civil cases while the law presumes the continuance of life, it also presumes against the commission of crime, and the answer to defendant’s contention that complainant should have proven that Cochran was dead at the time she married defendant, is that the law presumes he was not alive when the consequence of his being so is that another person has committed a criminal act. And there is no authority that holds that where conflicting presumptions exist the court may not presume death at an earlier period than seven years.

Under the rule stated in Bower v. Bower, 78 N. J. Law 387, relating to presumptions as affecting the duty of producing further proof, the presumptions in the present case of innocence and legitimacy cast upon the defendant the duty of producing proof that should meet and overcome such presumptions; this he has failed to do, and in fact has not attempted, but has instead rested his case upon the common law rule as to the presumption of death, with the result that he has no evidence to support the allegations of his counter-claim, and has therefore failed to overcome the presumptions in favor of the validity of his marriage and the legitimacy of the issue thereof.

A decree will be advised in favor of complainant and counsel will be heard on two days’ notice on the amount to be paid to her by defendant for her separate maintenance.


text:
    Jacob Turner v. Christopher Spicer and Louie A. Spicer, his wife.
    [Submitted March 8th, 1920.
    Decided March 15th, 1920.]
    1. In a suit by an, executor 'and sole devisee of a. decedent seeking to eampei th»e defendants to convey to Mm real estate, the title to which the decedent had placed in defendants’ maméis — Held, that under section 4 of the Evidence act testimony by the defendants that decedent took title in their names for fear that a second mortgagee might resort to the property is inadmissible.
    2. Where a decedent placed the title to property in the mames of the defendants, and one of the defendants prepared and delivered to her a lease for life, reserving mo rent, and providing that the defendants should at the decedent’s option,- convey title for one dollar, -and decedent, about an hour before her death, signed a letter directing reconveyance — Held, that though, the letter did not reach the defendants until after her death, there was .a sufficient exercise of the option.
    S. Where decedent placed the title to property in the names of the defendants, they could not, by preparing and delivering a so-called lease and option, require the decedent to demand reconveyance in her lifetime, and the sole devisee of the decedent is entitled to equitable -aid to compel the defendants to convey the property.
    Ob pleadings and proofs.

      Mr. Frank A. English, for the complainant.

      Mr. James H. Bolitho, for the defendants.
   Foster, V. C.

Complainant, who was the husband of Sarah J. Turner, deceased, and is the executor and sole devisee under her will, seeks the conveyance to him by the defendants of certain real estate in Dover, title to which Mrs. Turner had placed in their names.

Some time in 1911 Mis. Sarah J. Spicer, who married the complainant about three years later,, purchased from DeWitt R. Hummer and wife the land in question for $600, and at her request Hummer and wife by deed dated August 16th, 1911, conveyed the property to defendants, who about October 9th, 1911, made a lease to her of the land, and of the house which decedent had in the meantime built thereon at a cost of about $2,700. This lease was drawn by the defendant Christopher Spicer and states it is

“for the term of a life time, to commence 'on the ninth day of October, a. d. 1911, at the yearly rent of keeping the house in repair and paying the taxes for the same payable whenever such bills may come due, with an option to buy the house and tot for the sum of 'one dollar (¡¡>l00/ioo) at any time she wants to during her life.”

It was signed by both defendants, hut not by Mrs. Turner, and it is not clear that she ever saw it, or knew of its terms.

In addition to paying for the property the decedent also paid all taxes, insurance premiums and other fixed charges upon the property and collected and kept the rents therefrom until her death on April 15th, 1919. The defendants had no financial interest in the property and made no disbursements on account of it until after Mrs. Turner’s death, when they paid the taxes for 1919. Mrs. Turner was about seventy-five years old when she died and had been married to complainant about five years, and her last will and testament, executed on October 21st, 1914, in which she bequeaths and devises all of her estate, after the payment of debts and funeral expenses, to complainant, has been duly admitted to probate.

On the morning of April 15th, 1919, within an hour or two of her death Mrs. Turner wrote to the defendant, Mrs. Spicer, who was her niece, and requested defendants to make a deed to her for the property, and in this letter she enclosed a signed cheek to Mrs. Spicer’s order, with the request for her to fill in the amount necessary to pay for the preparation of the deed and for the care of a burial plot of a relative. This letter was duly deposited in the post office and was postmarked at noon, about the same moment Mrs. Turner died, and it was delivered to Mrs. Spicer the following morning, before she had learned of Mrs. Turner’s death, and later that day Mrs. Spicer informed her husband of its contents, and then destroyed the letter, but kept the envelope and blank check. Defendants have since refused to convey the property to complainant on the ground that under the terms of the lease Mrs. Turner was obliged to exercise her option to purchase the property during her lifetime, and that she never exercised this option while living, as the attempt to do so which she made by this letter, was not communicated to defendants until after she was dead, and upon the further ground that as Mrs. Turner’s purpose in placing title to the property in defendants was to defraud a creditor who had not realized anything on a second mortgage which he held against other property of Mrs. Ttirner’s, a court of equity should not lend its aid to set aside a conveyance made in fraud of third parties.

On this latter ground, at the hearing testimony was received from the defendants, when cross-examined as complainant’s witnesses, which went to establish that Mrs. Turner’s reason for placing title to the property in defendants was the fear that the second mortgagee mentioned might resort to this property for the satisfaction of his debt if title 'were in her name, and I am satisfied this testimony is inadmissible under section 4 of the Evidence act, as complainant in suing in this action as her sole devisee, is suing in a representative eapacitjr. Kleb v. Kleb, 70 N. J. Eq. 305; affirmed, 71 N. J. Eq. 787. And the record leaves defendants without support on this contention.

The question remaining to be determined is the effect of the letter in which Mrs. Turner requested defendants to convey the property to her. As I view the testimony of defendants they are admittedly trustees of the property; aside from the'taxes of 1919 they have no financial or other interest in the property; the so-called lease and option were - prepared by Mr. Spicer without any request from Mrs. Turner, and does not correctly state the true relations of the parties in respect to the property. On the witness-stand defendants frankly admitted they did not own and did not know if they had any interest in the property and left it for the court to determine to whom the property belonged.

If I considered' the lease and option as correctly stating the relation of the parties in respect to the property, there would he no difficulty in reaching the conclusion that Mrs. Turner had exercised her option to purchase the property in her lifetime, and that she evidenced this fact by the letter she wrote to defendants; and as it was not a condition of the option that defendants must be informed during her lifetime that she had exercised the option, she did, while living, all slhle was by the terms of the option required to do. But under the facts in the case the determination of the question in favor of complainant can also he placed upon the ground that the option did not correctly state the relation of the parties in respect to the property and therefore the performance of its terms and conditions by Mrs. Turner, was wholly unnecessary and immaterial, as she was admittedly dealing with her own property and her failure to act respecting it, as the option required, if there were such failure, is without significance and cannot he permitted to operate as a forfeiture of her property and to defeat the disposition of it which she had made by her will. Complainant as the representative of Mrs. Turner is entitled to the benefit of the option which she exercised during her life, and as such representative he is also entitled.to have defendants, as trustees of the property for Mrs. Turner, convey the same to him for the benefit of her estate.

A decree will he advised in accordance with the prayer of the bill.


author: Foster., V. C.

text:
    Maria Cantalupo Morello v. Ermelinda Malango Cantalupo.
    [Submitted April 6th, 1920.
    Decided May 13th, 1920.]
    Where ta woman voluntarily leaves iher husband, and is never reconciled to him, and since leaving him she has continued to live with another man in .adultery, she is not entitled to dower in her husband’s ■lands, under Comp. Stat. p. 2048 § 14.

      On pleadings and proofs.

      Messrs, Castellano & Abruzzese, for the complainant.

      Mr. Joseph J. Pallitta, for the defendant.
   Foster., V. C.

This is a suit to quiet title to certain lands in the city of Newark, owned by complainant and in hier possession, and which were conveyed to her on November 30th, 1918, by her brother, Antonio Cantalupo, who died testate on May 23d, 1919. The answer and counter-claim admit these facts, but state that defendant married Antonio Cantalupo on October 18th, 1900; that subsequent to the marriage and during the coverture, on September 5t!hl, 1918, Cantalupo became seized in fee of the premises in question; that defendant did not join in the conveyance made by her husband to complainant, and she has never released her right of dower therein, and that upon the death of her husband she repeatedly requested complainant to adjust or settle with her ifor her right of dower in the premises, and this complainant refused to do, and defendant asks for an accounting of the rents and' income of the property and for the assignment of her dower.

Complainant’s answer to the counter-claim charges defendant with) deserting her husband and having adulterous relations with one Frank Duco, and pleads in bar of her claim for dower, s’ection 14 of the act relative to dower. Comp. Stat. p. 2948.

In support of complainant’s contention, the proof is that one child, a boy now about eighteen years, was bom about a year after defendant’s marriage to Cantalupo (and it would appear ■that complainant held title to the premises in question for his benefit); that about 1903, when this child was1 ’about a year old, defendant began to receive attentions from Duco; her husband .objected and became jealous and 'angry and on one occa: sion he slapped defendant’s face for dancing too often with Duco; shortly thereafter defendant left her home and went to Germantown, Pennsylvania, where she remained in Duco’fe company for some days, where fhter husband found her and brought her back to her home in Newark; on her return she told complainant and others that she had sinned with Duco and was going away again, and a few days latex defendant left her husband and child and was not seen again by any of her husband’s family for nearly seventeen years; when she left her -husband defendant went to Germantown and resumed her relations with Duco; they lived as, and claimed to be, man and wife; three children were bom to them, and complainant and Duco still continue to live together as man and wife. Frank Cantalupo, the son, had not seen his mother since she deserted him, until the past year when’he called at her home in Germantown for the purpose of obtaining from her a release of her dower or any interest she had in the property in question; defendant refused to give him this release, but later she called on him and on complainant and demanded $£>'00 for the release of her dower.

Defendant states that she left her husband not in 1903 but in 1907; that he had always cruelly treated and abused her; that she was obliged to work to support herself; fhlat the immediate cause for leaving her husband was a quarrel they had because she would not give him her wages; that he then stabbed her and drove liter from her home, and he then ran away; that she went to a neighbor’s in Newark .and remained there for some days'until she recovered ¡from her wound, and on her recovery she went to her husband’s home, removled her effects and went to Germantown, to a Mrs. Cappello, a stranger whom she ' had met but once and who invited her to visit her; that she was then pregnant and later gave birth to a girl who is now twelve or thirteen years old, and is the daughter of decedent; that she never met Frank Duco before 1909, and he became a boarder in her home in Germantown and has lived with h'er ever since; that her husband neva- became reconciled to her and made no effort to have her return and live with him; she states she has three children living with her, the oldest being the girl mentioned, but she refused to state whlo was the father of the other two children, one of them being only three years old:

It was admitted that Cantalupo had married again on May 26th, 1910, and defendant states that she called at her husband’s home in Newark in 1910, and was told by his mother that he had obtained a divorce from her and had remarried.

Section 14 of the Dower act, which is in substance a re-enactment of the statute called Westminster Second, 13 Edw. I. c. 34, provides:

“Tibat if a wife valunitarily leave .her husband and go away and continue with her adulterer, ¡she shall be disabled and forever barred from having her jointure or dower, unless her husband be voluntarily reconciled to ber, and suffer her to dwell with him. in which case she shall be restored to her jointure or dower.” r-r« •

This section of the act does not appear to have been construed in any of th'e published opinions of our courts.

Soon after the passage of the statute of Westminster, in 1285, it received an exposition that has been uniformly acted upon by the English courts to the present time, but this exposition has not always been followed in the several states in which the statute has been re-enacted, in substance or effect, or recognized as part of our common law. The point of departure between tifie English cases and most of those in this country being over the construction placed upon the Avord “willingly” as used in the statute of Westminster, and the word “voluntarily” as used in our OAm and similar statutes in various states. Based on Coke Com. in 2 Inst. 435, and the statement in Bacon's Abridgement, as quoted' iu & Rui. Gas. L. §‘ 46, the English courts have uniformly hold, “that it is not the manner of the going away, but the remaining with the adulterer in avowtry, without reconciliation, that is the bar of the dower.” Hetherington v. Graham, 6 Bingh. 135-31 Y. & P. 399; Woodward v. Dowse, 10 C B (N. S.) 722; 142 Eng. Reprints 637.

In Woodward v. Dowse, supra, Mr. Justice Willis said that, “I think it is impossible more distinctly to lay d'OAvn the law to be that, if the wife leaves her husband’s house, no matter for what cause, and commits adultery, the penalty of the statute attaches.”

The prevailing rale in this country is stated in Scrib. Dow. 531, and in 14 Gyc. 933, to be that under the statutes of the states which have adopted adulterous elopement as a bar, two things must combine to constitute the bar: The departure of the wife must be voluntary on her part and she. must continue with tlie adulterer. So that where the wife’s desertion was caused by the cruelty or neglect of her husband -her subsequent adultery will not constitute a bar. Citing Rawlins v. Buttel (Del.), 1 Houst. 224; Walters v. Jordan (N. C.), 35 N. C. 361; Heslop v. Heslop, 82 Pa. St. 537; Stegall v. Stegall, 22 Fed. Cas. (13,351) on the Virginia statute. See also Cogswell v. Tibbetts, 3 N. H. 41; Payne v. Dotson, 81 Mo. 145; Reel v. Elder, 62 Pa. St. 308, and see also 5 Am. & Eng. Anno. Cas. 231; Bish. M. & D. (6th ed.) 627.

Aside from the statement of defendant’s sister that defendant’s husband treated her cruelly, there is not the slightest corroboration of defendant’^ testimony from any of her relatives, friends or neighbors; and by her own testimony it appears that after her husband stabbed h!er and drove her from her home, he ran away, and nearly three weeks later, when she recovered from her wound, she returned to her home, found it intact and had no difficulty in removing her effects and talcing them with her to Germantown, but'she made no effort to take her child with her, and she did not attempt to have her husband punished for his atrocious assault on her, or to compel him to contribute to her support, and she offers no explanation for her abandonment of her Mid or for her failure, during all the years that have elapsed, to visit him, or to communicate with him, or to obtain the custody of him. Her explanation for selecting Germantown as a' place off residence, on the invitation of Mrs. Oappello, a sympathetic stranger, is unsatisfactory, as Mrs. Cappello is not produced to corroborate her, and her absence is not explained. The unnamed, neighbor wblo took defendant into her home when she says she was stabbed, is said to be dead, but no member of her family, or of defendant’s family, and no physician is produced to show that defendant was actually suffering from a wound, at the time, and not the slightest evidence is offered to s!h!ow with whom defendant lived in Germantown during the period of over two years that elapsed; between the date when she states she took np her residence there and the date when Duqo came to live with her.

Defendant contends that under the prevailing American rule tfhte bar of the statute does not apply, because the facts show that she did not leave her husband voluntarily, hut was driven from him an'd from her home by his cruel and abusive treat-meat, and further because it appears that after her departure her husband committed adultery in living until his death! with the woman life married in 1910. The proofs do not support this contention. And no authority or rule of statutory construction is cited that will support defendant’s claim that the commission of adultery by her husband, excuses er justifies the commission by her of a like offence.

It is not necessary for our present purpose, however, to determine between the correctness of the English viewr, that the cause and manner of departure are immaterial, as the essence of the offence is the commission of adultery, and that of the American cases which hlold that the proofs must show a voluntary departure as wrell as adultery; for the established facts in the case bring it within the rule of both the English and American cases, as well as within the express terms oif the act, and compel the conclusion thlat defendant voluntarily left her husband; that she was never reconciled to him, and that since leaving him she has continued to live with her adulterer and has thereby incurred the forfeiture of her dower imposed by the statute.

A decree will be advised for complainant. .


author: Buchanan, V. C.

text:
    Curtis & Hill Gravel and Sand Company v. State Highway Commission et al.
    [Decided April 23d, 1920.]
    1. In statutory interpretation, the meaning it© be ¡ascribed to the legislative phraseology is the natural ¡and ¡ordinary meaning thereof, unless a contrary intent appear; this is true of the title as well ¡as of the body of the aot.
    2. Where in ¡the title of ¡an ¡act, ¡an enumeration ¡of words ¡of ¡specific significance .are followed' by words ¡of general import, the latter are ordinarily to be understood ¡as limited to things ¡of like ¡kind to the ones specifically mentioned.
    3. Under constitution, arltliele 4, ¡section 7, plaoitum 4, the enacting part of a statute can have no effect beyond the .object expressed in the title.
    4. Where the enacting part ¡of a ¡statute ils .susceptible of ¡two interpretations, one .of which would and the -other of which would not, render the same unconstituticynal as exceeding the ¡object expressed in the title, the latter is to be adopted.
    5. An interpretation which, would .make a .statute operative to affect the ¡state i-s not to be ascribed to- legislation unless that purpose be dearly indicated.
    6. The state highway commission, created .by P. L. 1917 p. 35, is an alter ego of ¡the state itself, ¡and is not a “miuniieipality” under the Municipal Mechanics’ Dien act. Rev. 1918.

    7. The provisions of the Municipal Mechanics’ Lien ¡act (Rev. 1918) do mot -apply to labor or materials for ¡the performance of contracts made by the state highway commission.
    On motion to strike out bill of complaint.

      Messrs. McCarter & English, for the complainant.

      Mr. Thomas F. McCran, attorney-general, with, whom was Mr. Francis H. McCee, for the defendants the State of New Jersey and State Highway Commission of the State of New Jersey.

      Messrs. Harris & Harris, for the defendants Eisenberg and Mixner.
   Buchanan, V. C.

The bill is filed by the complainant, nnder the provisions of the “Municipal Mechanics’ Lien law (Rev. of 1918),” as a subcontractor who furnished materials used in the construction of one of the sections of the state highway system; such materials being furnished by complainant to defendant Eisenberg, who was himself a subcontractor furnishing labor and material under a contract with defendant Mixner, who was the main contractor, actually constructing the road, under contract between himself and the state highway commission. Complainant not having received payment for the materials furnished, filed a lien claim with the state highway commission and now sues to enforce his lien claim and to procure payment thereof out of the moneys due or to become due from the state highway commission to defendant Mixner.

The motion to dismiss is joined in by all the defendants, and the grounds assigned are the alleged lack of jurisdiction of this court to entertain the bill — defendant’s contention being that the contract set forth in the bill is made with the state itself or the state highway commission, and in either event is not a contract with a municipality, and hence, not such a contract as is covered by the statute and complainant is therefore not entitled to file the bill.

It was, and must needs be, conceded that complainant’s right to bring the bill in this court is to be found, if anywhere, only in the provisions of the statute referred to. The only question is whether the party with whom Mixner’s main contract was made — i. 6.; the state highway commission — comes within the classification specified in the act.

The lien is given by section 1 of the act, nnder certain conditions, to

“any person Who as laborer * * * or sub-contractor, shall hereafter, in pursuance o-f or conformity with the- terms iqf any contract for any public improvement matte between any person or corporation and any county, city, town, township, public commission, public bowrd or other mwmcipality in this state authorized by law to make contracts for the making of any public improvement, perform, any labor or furnish any material toward the performance or completion of any such contract.”

Admittedly, the contract between Mixner and the state highway commission (which contract' will be hereafter designated herein as “the contract”) is for a public improvement and the "state highway commission had legal authority to make it. Defendant’s argument, however, is substantially as follows: •

I. The state highway commission is not a municipal^, either

.4. by strict definition, nor

B. by broad definition, for

1. It has no powers of local government.

2. It is not a corporation either

a. by express enactment, or

b. by necessary implication from powers granted.

II. Even if it he a municipality, it is not a municipality of the kind contemplated by the statute.

A. It is not a city, town, township or county.

B. The title of the act is limited to those or similar municipalities.

G. The body of the act must also he construed to be likewise limited.

1. Because otherwise the act would be unconstitutional.

D. The state highway commission is not similar to city, county, town or township..

1. A vital dissimilarity is that a suit against it is in effect a suit against the state itself.

2. Statutory authority for a suit against the state must he clear and unambiguous.

It must he conceded that the state highway commission does not fall within the strict definition of municipal corporations.

Dillon (1 Mun. Corp. (5th ed.) §§ 18, 31, 32) says:

“Sec. 18. Municipal .corporations are institutions designed far the local government of towns and cities; or, more ¡accurately, towns and! cities, with their inhabitants, are, for purposes of subordinate local administration, invested with -a corporate character.”
“See. 31. A .municipal corporation, in its sbric-t .and proper sense, is; the body politic and. corporate constituted by the incorporation of the inhabitants of a city or town for the purposes of local government; thereof. Municipal corporations .as they exist in 'this country are bodies politic .and corporate .of the general character above described, established by law partly .as an agency of the state to ¡assist in the Civil government of the country, hut chiefly to regulate .and administer the local or internal affairs of the city, town or district which is incorporated.”
“See. 32. We may, therefore, define -a municipal corporation, in its historical .and strict sense to be the incorporation, by !the authority of the government, of the inhabitants ¡of ,a particular place or district, and authorizing them in their corporate capacity itio exercise subordinate specified powers of legislation and regulation with respect to their local and internal concerns. This power of local government is the distinctive purpose and the distiniguisMug- feature 'of ¡a municipal corporation proper.”

MeQtiillin (1 Mm. Gorp. § 107) saj's:

“In Ibhe English law, under the Municipal Ooiporations act, 1882, 'municipal corporation’ means ‘the ‘body corporate constituted by the incorporation of the inhabitants ¡of a. borough.’ In England, as in this country, iti is the inhabitants who ¡are incorporated, and noit the officers or ¡the council or governing legislative body through whom they act.
¡“In American law .a municipal corporation may be described to. be a ■legal institution, ¡or body .politic and corporate, established .by public law, or sovereign power, evidenced by a charter, with defined limits and a population, a corporate name 'and perpetual ¡succession., primarily it© regulate the local or internal affair's of the territory or district incorporated by officers selected by the corporations, and .secondarily, to share in the civil government of the state in the particular locality.
“The characteristic feature beyond all others is the inherent right of local self-government.”

Ronvier (Rawle's (3d Rev.) 2269) gives the following definitions :

“A public. corporation, created by government for .political purposes, and having subordinate and local powers of legislation; e. g., a county, town, city, &c. 2 Kent 275; Ang. & A. Corp. 9, 29; Bonaparte v. R. Co., Baldw. 222; Fed. Gas. No. 1, 617. An incorporation of persons, inhabitants of .a particular place, or connected with a particular district, enabling them to conduct its local civil government. Glov. Mun. Corp. 1.”

But the name is frequently used with very much broader signification. Quoting again from Dillon (volume 1, section 32) :

“The phrase ‘municipal corporation’ is used with us in general in the Strict and proper .sense just mentioned'; but .sometimes it is used in- a broader ¡sense that indudos also public or gttctsi^corporati'on'S', the principal purpose of whose creation is ;as ¡an instrumentality of the state, and not for the regulation of 'the local and special affairs of a compact community.”

And McQuillin (volume 1,, page 256) quotes the following from Fairl. Mun. Admin.:

“In English and Aimerioan law a municipality is .any subordinate public aniiihority created by the central govermnenit 'and vested with the 'legal rights of a corporation. CDhe term applies to the local authorities in cities, villages, counties, special .authorities, such .as school and park boards, and even to incorporated townships, a® in 'Massachusetts. In this sense, municipal .administration would include the whole field of local governimenlt1.”

It is n'ot necessary to refer to decisions in other states (Of. Words & Phrases, tits. "Municipal ” "Mkmicipail Corporations,” “Municipality”) to substantiate the soundness of the doctrine that ihe term as used in legislative enactments is not limited to the strict or original meaning. Not only are there numerous adjudications of our own courts in that behalf (some of which will be hereinafter alluded to), hut it has been specifically held by this court that in the statute (P. L. 1892 p. 369) preceding the present Municipal Mechanics’ Lien law, the word must be deemed to have been used not in its narrow sense, but with a broad signification — in a sense sufficiently broad to include “counties” within the category of “cities, towns, townships and other municipalities.” Herman et al. v. Essex Freeholders, 71 N. J. Eq. 541; affirmed, 73 N. J. Eq. 416; Union Stone Co. v. Hudson Freeholders, 71 N. J. Eq. 657.

Indeed, Vice-Chancellor Garrison, in the latter case, in his interpretation of the meaning of the legislative enactment of 1892, supra, goes so far as to say: “I think it is clear that the legislature meant to include in this legislation any public corporation whose functions included the making of public improvements, whether in any other sense, of the word ‘municipality’ the said public corporation cordd be properly included or not.”

This language would, of course, include the state highway commission, if the latter be deemed a corporation. There is nothing in the present act to indicate any intention on the part of the legislature to restrict, the application of the layv within narrower confines than that of the previous act, as thus judicially interpreted. On the contrary, the use of the words “public commission, public board,” in the present act, might be argued to indicate, if anything, an intent, to broaden the scope of its application, by eliminating from Viee-Ohancellor Garrison’s definition the requirement that the “municipal body” be a corporation. This is made certain when reference is had to the ninth section of the present statute, from which it is perfectly apparent that the legislature did in fact intend that the public agency making the contract need not be a corporation — for the legislature there sa3's that the lien claimant, in a suit to enforce his lien, shall include in the parties to the suit,

“the county, city, town, township 'commission', public board or other municipality with whom ithe contract was miade, arad if the public board or commission is not a corporation, then the rnmnicipaility under which it is eomstituM must be made a party defendant.”

(A difference will be noted between the first section and the ‘ ninth section — in the first section there appears between the words “township'” and “commission” a comma, followed by the word “public.” This is not an error in publication, for the original bill, as passed, approved and filed, reads precisely as the printed pamphlet laws — but it is obviously a mere inadvertence in the drafting of the hill and I attach no significance to it whatsoever.)

Defendants next argue that, under the doctrine of noscitur a sociis. it must he held that the public boards and public commissions referred to in the act as municipalities, can be deemed to include only such public boards or public commissions as can be said to be similar to counties, cities, towns or townships — such, for instance, would he local boards of education, or county or city building commissions. This argument, so far as relates merely to the body of the act, would seem to be completely negatived, by the seventeenth section of the act in question, where it is provided that “the word 'municipality/ as used in this act, shall be construed to include every form of municipality, including those specified in the first section of the act ”

But reference must also be had to the title of the act. The constitutional provision that “every law shall embrace but one object and that shall be expressed in the title” has the result, in so far as statutory interpretation is concerned, that “the title of a statute is not only an indication of the legislative intent, but is also a limitation upon the enacting part of the law.” Hendrick son v. Fries, 45 N. J. Law 555 (at p. 563). “The enacting part of a statute, however clearly expressed, can have no effect beyond the object expressed in'the title.” Dobbins v. Northampton, 50 N. J. Law 496 (at p. 499). “It is entirely well established that the title forms a limitation upon the enacting clauses, and any construction of the latter that would give them a scope beyond the object expressed in the title is for this reason to be rejected.” Jordan v. Moore, 82 N. J. Law 552 (at p. 554).

The classification expressed in the title of the act sub judice is “cities, towns, townships and other municipalities in this state.” There is no actual nomination of public boards, commissions or even of counties. Such of these latter as were intended by the legislature to come within the purview of the statute must come within the meaning of “other municipalities in this state.” It is true that to the words last quoted is to be attributed such meaning as they had acquired (at the time of the enactment) in common and legislative usage. State v. Twining, 73 N. J. Law 683, and cases cited. And it also is true, as has already been pointed out, that the word “municipality” has acquired by loose usage a meaning, inter alia, which is sufficiently broad to include within its scope, in some instances at least, such a public or grosí-publie corporation as the state highway commission (assuming the latter to be a corporation). I say, in some instances, for it is perfectly clear that the word is frequently used in legislation and otherwise in a sense or senses which would exclude the state highway commission from its connotation. The question remains, then, whether in this particular instance it has or has not been so used — for it is to be borne in mind that in this, as in every case of statutory interpretation, our object is to ascertain the actual intent and meaning of the legislature.

In Gibbs v. Northampton, 52 N. J. Law 496, it is held that where words used in the title of an act have no legal or other fixed meaning, reference may be had to the body of the act to determine the sense in which the words are used in the title. Without criticising this decision, it is sufficient to point out that the proposition that the body of the act, and the purpose of the legislation as thereby disclosed, may be referred to in order to determine the sense in which the legislature used a word of no feed meaning in the title, is very far from saying that the legislature may in the body of the act give ah express definition of a certain word which is also used in the title, and that that word as used in the title is to be construed in accordance with the definition given in the body of the act. The requirement in section 7, paragraph 4 of the constitution is relied on by the citizens of the state, not only for the specific purpose therein expressed, but also to enable them to ascertain and know the laws upon any subject without being required to read through the entire body of legislation in order to be sure that some enactment has not been made upon the subject in question which is not properly expressed in the title. Cf. Van Riper v. Heppenheimer and Griffith v. Trenton, infra. It would seem to me, therefore, very unwise to extend the principle laid down in Gibbs v. Northampton, supra, in any degree whatever.

In determining the meaning of the title of a statute, the natural and ordinary interpretation of the language used is to be adopted — at least, unless there be sufficient indication to the contrary. Mr. Justice Garrison’s language, in Griffith v. Trenton, 76 N. J. Law 23 (at p. 24), is: “For, in whatever sense the title of an act would naturally and generally be taken, that is, ordinarily the meaning that it should, in a constitutional sense, be held to .express.” (This is approved in Strait v. Wood, 87 N. J. Law 677, at p. 678.) He cites Falkner v. Dorland, 54 N. J. Law 409, and Rader v. Union, 39 N. J. Law 509, in pointing out that the constitutional provision requires not only that the title of the act shall embrace the object but also shall express it; andi that in order properly to express the object, the title must disseminate a correct impression thereof, and proceeds to reiterate as the correct rule the language of Mr. Justice Dixon in Van Riper v. Heppenheimer, 17 N. J. L. J. 49: “The obvious purpose of this»constitutional requirement (article 4, section 7, placiinm 4) is to give information as to the object of the statute to the legislators and the public, and, consequently, the title should read as it would probably be understood by non-professional persons of ordinary intelligence.”

The rule or doctrine of noscitur a sodis, or rather of ejuschm generis, is a natural and ordinary guide in interpretation, as well as (because thereof) having judicial sanction. Where there are words of general import following an enumeration of words of specific signification, the general words are naturally and ordinarily (that is, unless there be some indication to the contrary') to be understood as limited in their meaning to things of like kind to the particular ones. See Endl. Inter. Stats. § 405; Lew. Suther. Stat. Const. (2d ed.) § 422. Under this rule, in Rex v. Wallis, 5 T. R. 375, the word “places” in a statute dealing with “cities, towns, corporate boroughs and other places” was hold limited by the preceding words to places of like kind, and hence not to include places which were not incorporated.

The rule has been repeatedly applied in our own courts. In Craft v. Smith, 35 N. J. Law 302, the statute under consideration dealt with “any tax, assessment or other order or proceeding,” and it was held the general words did not include a judgment in a court of law, but were limited in their general character by the preceding specific words.

So, also, in Livermore v. Camden Freeholders, 31 N. J. Law 507; affirming S. C., 29 N. J. Law 245, the words “other property'” in a statute giving a right of action for damage to “any person or persons, his, her or their team,, carnage or other property',” are held limited by the preceding particularization and not to include real property.

In Thompson v. Trenton Water Power Co., 77 N. J. Law 672, the contract contained a provision exempting the company from liability' to the water consumer for stoppage of water occasioned by “repairs and improvements or by breaks, floods, the drought of summer, nor for any othev cause whatever." The court of errors and appeals held that these words of general comprehension were limited by the preceding specifications, and that the company' was liable for stoppage caused by its permitting the city' of Trenton to construct a drain under the company’s raceway.

Applying this guide to the phraseology used in the title, we must confine “municipalities” to those of like kind with cities, towns and townships; and in determining what municipalities are of such, like kind we of course bear in mind the purpose of the act, namely, the securing to the persons named the payment for the work and materials furnished by them toward the performance of any work in the municipalities. In my' view the word “in” has a force and effect which should by no means be overlooked. Of course it has the connotation also of the word “for;” notwithstanding the unexplained omission of tire words “public improvements” which appeared in the title of the prior act, it is clear that only public works, work done for these municipalities, are contemplated by the statute, not work done for private individuals in these municipalities. Nevertheless the word used is "in” and not "for,” and to my mind there is thereby indicated as a characteristic of the municipalities, that they should be in some sense local or geographical subordinate creatures of the state (the “local habitation” as well as “the name”), as distinguished from such agencies as are state-wide in their scope and are created by the state for convenience or efficiency in the performance of state work.

The adoption of this characteristic as a requisite qualification of the municipalities in question would exclude the state highway commission and any other “municipality” which is actually a mere alter ego for the state, but would not exclude counties, boroughs, school districts, city or county building commissions, drainage districts or any other municipality which is or acts for a subdivision of the state.

This is not in conflict with Vice-Chancellor Garrison’s definition in Union Stone Co. v. Hudson, supra. He was there dealing with a county, which clearly was a municipality of like kind, and did not have before him the issue herein raised, so that the language of his definition is broader than it would have been had he had this question in contemplation — nevertheless his definition is to be read in conjunction with the sentence immediately, preceding it — “The purpose of the legislation was to secure to a certain named class payment for work or materials furnished for public improvements in municipalities.”

That the state highway commission is an alter ego of the state and not a mere subordinate is so clear as to need little discussion. The statute (P. L. 1917 p. 35 § 1) creates a state highway department “to be governed by a board to be known as the state highway commission.” The members of the commission are the governor himself, ex-officio, and eight members appointed by the governor by and with the advice and consent of the senate. The contracts made by the commission are clearly contracts of the state — they may be made either in the name of the state or of the commission. The funds expended for its work are the funds of the state, and expended through the usual state channels. The work which it is to do is the construction and maintenance of a state highway system, reaching throughout the entire state and for the benefit of all the citizens, not merely in or for the benefit of any particular locality or the citizens thereof. The work done under its contracts by these laborers and materialmen is work done “in the state” and not in any “municipality in the state” notwithstanding that each particular piece of work must necessarily have a locus within the geographical limits of one or more municipalities or the territory governed thereby.

In* my opinion, the sense in which “other municipalities” as used in this title, “would naturally and generally be taken” or “would probably be understood by non-professional persons of ordinary intelligence,” includes municipalities of like kind to those specifically enumerated, subordinate municipalities, but excludes such a “municipality” as the state highway commission.

Nor am I able to perceive any reason why other than, this natural interpretation should be adopted. The design of the legislation to favor a certain class of persons in certain cases is not such as to incline a court toward a construction other than the ordinary and natural one; nor oan any argument therefor be based upon the history of this legislation. The wording of the title of the present act, in this respect, is precisely the same as that in the title of the prior act. The legislature knew that cases of doubt had arisen under the prior act and might well arise under the present act. The decisions under the prior act, as has been seen, held that municipalities of like kind were to be deemed included, but no adjudication went further than that. On the other hand the court of errors and appeals had held in Van Cleve v. Passaic Sewerage Com mission, 71 N. J. Law 574 (at p. 579), that the members of that commission, “though incorporated, are not constituted a municipal body” and that “the work committed to them is of a public, as distinguished from a municipal, character;” and had held in Hardy v. Orange, 61 N. J. Law 620, that the title of an act respecting employment of certain persons “in the public service of the State of New Jersey” could not be deemed to include employes of municipalities. If, then, it had been the intent of the legislature to make the scope of this lien legislation all-comprehensive it undoubtedly would have used language apt for that purpose.

There is, however, a reason, and an important one, why other than the natural interpretation should not be adopted in the case at bar. To extend the meaning of “municipalit}^” in the title and body of this act to include the state highway commission would necessarily make the statute operative to affect the rights, interests' and property of the state. That this is so,, is clear from a consideration of the nature and characteristics of the state highway commission under the act of 1917, supra, and by the application of the same principles which form the basis of the opinion in Herman & Grace v. Essex Freeholders, 71 N. J. Eq. 541. In that case the plaintiff claimed a lien, under the prior Municipal Lien act, for labor and materials on the Essex county court house, which was being erected not by the board of freeholders but by a- building commission specially created by the legislature for that purpose. From an examination of the nature of the building commission as set forth in the act creating it and its relationship to the county, the source of the funds expended by it and the means of enforcing its contracts, Vice-Chancellor Emery concludes that “the whole scope of the act is to make the commission and its members the agents of the county, designated under legislative authority, for erecting buildings on lands of the county, which are to be paid for only out of moneys raised by the sale of bonds of the comffy,” and therefore that the contract between the contractor and the building commission “must be held to be a contract with the county” and within the Municipal Lien act. The same reasoning leads, in the case now before us, to the conclusion that the state highway commission is an agent of the state, to construct state highways on lands which may be called state lands as distinguished from lands in any municipality (they are not owned by either state or municipality) and to be paid for only out of the state treasury — hence the contract with the state highway commission is essentially a contract with the state, and not with a municipality, and is not within the statute.

An interpretation which would make the statute operative to affect the state is not to be given legislation unless that purpose be clearly indicated. Mr. Justice Depue, speaking for the court of errors and appeals in Trustees of Public Schools v. Trenton, 30 N. J. Eq. 667 (at p. 683), says:

“The common law doctrine is, that where the king has any prerogative, right, title or interest, and the statute is general, he shall not be barred of them by the general words of the act, for the king shall not be bound unless the statute is made by express words to extend to him. Magdalen College Case, 11 Co. 74; Plowd. 239; Bac. Abr. Stats. (E). Independently of any doctrine founded on the notion of prerogative, the same construction ought to prevail, founded upon the legislative intent. Where the government is not expressly, or by necessary implication, included, it ought to be clear, from the nature of the mischiefs to be reached, or the language used, that the government itself was in contemplation of the legislature, before a court of law would be authorized to put a construction on a statute which would affect its rights.”

It is, I take it, essentially the same rule or principle which prevents the state from being sued by its citizens. Lodor v. Baker & Co., 39 N. J. Law 49; American Dock, &c., Co. v. Trustees, &c., 32 N. J. Eq. 428 (at p. 434). The state may by its legislature, consent to be sued (and in certain eases has done so), but no statutory enactment is to be interpreted as giving such consent unless such an intent clearly appears. The subsequent amendments to the statutes relating to Workmen’s compensation and to garnishment, extending their provisions to include the state, are examples of the recognition by the legislature of the clarity and definiteness required for such result.

By the ninth section of the statute under consideration, if the state highway commission be not a corporation, the state is required to be made a party defendant in litigation to enforce the lien claims; and by the tenth section this court would be required to make a decree directing the state k> make payments. It is no answer to say that no real interests of the state axe involved because of the provision in the act that the municipality shall not be required to pay out anjr greater amount than the sum due from it to the contractor; under- the proviso at the end of the first section the state might be drawn into litigating an issue between it and the contractor or the lien claimants as to how much was due the contractor from the state.

There would be no difference if the state highway commission be deemed to be a corporation. The commission being the mere agent of the state, the latter would be the real party in interest and the suit in fact one against the state. This is clearly shown in American Dock, &c., Co. v. School Trustees, supra (at pp. 435 et seep), holding that the trustees for the support of public schools are mere agents and official representatives of the state, and cannot be sued independently and alone; that a suit against them is a suit against the state and will not lie without legislative authority. See also Poindexter v. Greenhowe, 114 U. S. 270; In re Ayres, 123 U. S. 443, and Smith v. Reeves, 178 U. S. 436, as to suits which are deemed suits against the state.

It is clear therefore that the title of the act in question is not to be interpreted as including the state highway commission within the phrase "other municipalities,” and hence if the body of the act necessarily includes that commission within its scope, it would to that extent be unconstitutional. If, however, the language of the act itself be susceptible of a-n interpretation which would avoid the result of unconstitutionality, the legislature is to be deemed to have intended such meaning. Ross v. Essex Freeholders, 69 N. J. Law 291 (at p. 292); State v. Tachin, 92 N. J. Law 270 (at p. 274).

“Public commission and public board” as used in the body of the act do not necessarily include the state highway commission. It not only does no violence to the language or the purpose of the act, to1 attach to these words, and to the expression in section 10 “every form of municipality” the limiting qualification “of like kind to tiróse specifically mentioned,” but on the contrary such -a limitation is a reasonable and natural one to make in the body of the act equally as in the title.

I conclude therefore that the statute in question does not extend to contracts made by the state highway commission and will advise a- decree dismissing the bill, with costs.