author: Reed, V. C.

text:
    John Van Nostrand, executor of Josiah Schenck, deceased, v. The Board of Domestic Missions of the Reformed Church in America.
    [Filed October 23d, 1899.]
    1. Wliere the description of a legatee is erroneous, but there is no doubt as to the person intended, the mistake will not defeat the bequest.
    2. Parol testimony is admissible to explain the intent of a testator in making a bequest to the “ Domestic Missionary Society,” where there are a number of missionary societies to which such term might apply.
    On final hearing.

      This bill is filed to get a construction of the residuary clause in the will of Josiah Sehenck. This clause is as follows:
    “All the rest, residue and remainder of my estate I give and bequeath to the Domestic Missionary Society, to invest the said amount, whatever it may be, in government bonds, and the interest accruing thereon to appropriate to the use of said society.”
    This residue is claimed by the Board of Domestic Missions of the Reformed Church in America.
    The extrinsic evidence in the case is that the testator was a devoted member of the Reformed Church; that he was greatly interested in domestic missions, in preference to foreign missions ; that in conversations upon the subject of domestic missions he ordinarily spoke of the domestic missionary society when speaking in reference to the board of domestic missions of his church, and of the foreign missionary society when speaking of the board of foreign missions of his church.
    The draughtsman of the will also says that it was to the Board of Domestic Missions of the Reformed Church of America that he and testator, in their conversations before and at the time of the execution of the will, intended to give the legacy.

      Mr. George E. Page, for the complainant.

      Mr. Alvah A. OlarJc and Mr. John D. Bartine, for the defendants, the Board of Domestic Missions of the Reformed Church of America.
   Reed, V. C.

A gift to a corporation by a misnomer is good, especially if for a charitable purpose. 2 Perry Trusts 730. In Wilson v. Squire, 1 Younge & C. 654, there was a bequest to the London Orphan Society in the city road. There was no society answering precisely this description, but there was- a London Orphan Asylum, at Clapton, and an Orphan "Working School in the city road. It was held that the legacy went to the latter.

In Mount et al. v. Boston Asylum and Farm School et al., 7 Metc. 416, there was a gift to the Boys’ Asylum and Farm School. There was no association of a similar name except one incorporated under the name of the Boston Asylum and Farm School for Indigent Boys. It was held that this association took.

In Smith’s Executors v. First Presbyterian Church of Bloomsbury, 11 C. E. Gr. 132, there was a gift to the Blair Academy, of Blairstown. There was an institution under the corporate name of the Blair Presbyterian Academy. It was held that it took.

The general rule enunciated in the last case was that where the name or description of the legatee is erroneous and there is no reasonable doubt as to the person who was intended to be named, the mistake will not defeat the bequest. The general rule is supported by the cases cited in the opinion delivered in the last case and by the text-books. Theob. Wills (4th ed.) 305.

The evidence is that there was' no other domestic missionary society in the church of which the testator was a member but the Board of Domestic Missions of-the Reformed Church of America.

It is also in evidence that in his conversations with his pastor upon the subject of missions he was accustomed to allude familiarly to the two boards of foreign and domestic missions as the foreign missionary society and the domestic missionary society. This evidence was competent, although there was no latent ambiguity ; for, says Mr. Hawkins, It is to be observed that evidence in the shape of sayings, &c., of the testator, may be in certain cases adduced to show that he habitually used certain words, even where the description is not equivocal, provided the sense thus sought to be put upon them does not contravene their ordinary and legitimate meaning; this being distinct from evidence adduced to show in what sense he used the words on the particular occasion of writing the will.” Hawk. Wills 10; Duke of Leeds v. Amherst, 9 Jur. 359; Re Fethans Trusts, 1 Kay & J. 528.

Among the things which may be shown in respect to the signification of words is the meaning which it can be conclusively shown that the parties were in the habit of affixing to the words. Elph. Int. Deeds 4-8

The society now claiming and the society described were both missionary societies, and both domestic missionary societies. If the Board of Domestic Missions of the Reformed Church of America was the only society of the kind, it is apparent that it was the one intended by the testator. But it is a matter of common knowledge that other church organizations have boards of foreign and domestic missions; therefore, the description may apply to them as well as to the defendant; the description thus becomes equivocal. Re The Clergy Society, 2 Kay & J. 615. This condition of affairs confers competency upon the parol testimony in respect to the expressed intent of the testator. Hawk Wills 8.

The scrivener who drew the present will testifies that it was the intention of the testator before, and at the date of the execution of the will, to make the Board-of Domestic Missions of the Reformed Church' in America the legatee. Regarding the relations of the testator to this society, his habitual designation of it in his conversations as “the domestic missionary society,” and his expressed intent in respect to the beneficiary who was to take under his will, I have no doubt that the Board of Domestic Missions of the Reformed Church in America is the legatee. A decree will be advised accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    Rebecca C. Morgan v. Evan Dalrymple.
    [Filed October 23d, 1899.]
    1. A bond was executed in a certain amount, payable in one year, and con currently with the execution of the bond the payee executed an agreement reciting the bond and stipulating that when the sum paid thereon amounted to one-half the principal of the bond the payee would convey to the maker a certain tract of land. None of the principal of the bond was paid at maturity. — Held, that the payee of the bond, on its maturity, had the right to enforce the obligation and cut off the maker’s equitable interest in the land by foreclosing his vendor’s lien, and the lien was not extinguished by a delay of ten years before enforcing it.
    2. Where one who took a bond for the purchase price of land and executed an agreement to convey, subsequently conveyed to the maker of the bond a part of the land, who endorsed on the agreement that the land conveyed “ is hereby released and excepted from the condition of this agreement,” the consideration for the part conveyed being in the same ratio to the principal of the bond as the part conveyed bore to the whole tract and endorsed as a payment on the principal, such conveyance and endorsement constituted a waiver of the seller’s vendor’s lien as to the part conveyed.
    3. Where the debt, for which the vendor’s lien is claimed, has passed into judgment, and the attorney of the judgment creditor has entered satisfaction of the judgment upon the record, the vendor’s lien will not be enforced so long as the entry of satisfaction stands uncanceled.
    Oil a bill filed to enforce a vendor’s lien.

      Mr. John J. Crandall, for the complainant.

      Mr Robert 8. Clymer, for the defendant.
   Reed, V. C.

The facts are as follows: On November 29th, 1888, Evan. Dalrymple made a bond to Rebecca C. Morgan, accompanied by a warrant of attorney to confess judgment. The bond was conditioned for the payment of $855 within one year from October 1st, 1888, with'interest thereon, payable semi-annually.

Concurrently with the execution of this bond an agreement was executed, signed by Rebecca C. Morgan, in which it was recited that Dalrymple had given to Rebecca his bond and warrantof attorney, bearing date November 29th, 1888, conditioned for the payment of $855 within one year from October 1st, 1888, with legal interest thereon, payable semi-annually, and witnessed that whenever the amount paid thereon reaches the sum of $427, being one-half of the principal sum of said bond, the said Rebecca C. Morgan, for herself, her heirs and assigns, agrees to convey to said Evan Dalrymple a tract of ground in Gloucester county, containing two and eighty-five hundredths acres. At this time Dalrymple was already in possession of the said tract of land. Nothing was done to change the position of the parties in respect to the land until August 14th, 1890. Interest upon the bond had been paid, but none of the principal. On that date Rebecca conveyed to Dalrymple a part of the said tract, concerning which sale the following is endorsed upon the original agreement:

“Received August 14, 1890, a certain indenture, bearing even date herewith, from Allan S. Morgan and Rebecca C. Morgan, covering 68-100 of an acre, being part of the tract described in this agreement. Reference to said indenture will more fully describe said lot of ground, with a messuage or tenement thereon, which-is hereby released and excepted from the condition of this agreement.
“Evan Dalrymple.”

For this conveyance the sum of $204 was received, which was endorsed upon the bond as a payment upon the principal sum of $855, leaving due the sum of $651. It is perceived that the amount paid for the part sold was in the same proportion to its size as the sum of $855 is to the entire tract of two and eighty-five hundredths acres. Upon the part so sold Dalrymple has built a house. Interest was paid upon the bond by Dalrymple up to October 1st, 1897. On May 16th, 1899, Dalrymple, with one Robb, a real estate dealer, went to see William Morgan, the son of Rebecca C. Morgan, who had general charge of her affairs, and told him that there was a chance to sell a piece of ground adjoining the land still belonging to Mrs. Morgan, and that Robb wished something to show to the effect that the purchaser of the adjoining land would have the right to acquire this land also.

William Morgan signed the following paper: “I agree to rent or sell the land stated in an agreement with Evan Dalrymple on same terms, two acres more or less.”

It does not appear that William had any authority to sign such a paper for his mother.

Counsel for the defendant insists that the original agreement conferred upon the defendant, who was in possession at the date of the execution of the agreement, an option to purchase or rent; that he could pay interest upon the bond as rent, or could pay the amount stipulated and purchase. He further insists that the defendant can, as he has done, abandon the premises and sever his relation'as tenant, as well as refuse, to purchase.

I do not so construe the contract. The bond and agreement are parts of one transaction. The bond is referred to in the agreement, and it is so referred to as to display the fact that the amount secured by the bond was the consideration to be paid for the two-and-eighty-five-hundredths-acre tract.

By the bond Dalrymple bound himself to pay this amount in one year. By it he had the right, when one-half the principal was paid, to get title to the land. He could pay the onelialf at any time before the maturity of the bond.. Whether he could get title after the expiration of the year by paying only one-half of the same, would depend upon equitable considerations. The price was due on October 1st, 1889, by the terms of the bond, and at any time after that date the vendor had a right to enforce the obligation, and the right to cut off or foreclose the equitable interest of Dalrymple in the land arising out of the agreement. This right is what is meant by vendor’s lien in those instances where the legal title remains in the vendor.

I am therefore of the opinion that, when the bond matured, there was a right to enforce this lien. It was not enforced at that time, as I have observed, but the vendor remained in possession, paying interest upon the bond.

But the right of lien belonging to the vendor was not extinguished by this delay to enforce it. But, assuming that the right to lien still exists, in my judgment it does not include the right to impress a lien upon the part which has been conveyed. By the endorsement upon the agreement this part was released and excepted from the condition of the agreement. The parcel sold was entirely paid for. It was built upon. The endorsement, although signed by Dalrymple, was written upon the agreement in the possession of the complainant and here presented in evidence by the complainant. It could not have been the intention of either party that this parcel should remain liable for any portion of the unpaid part of the whole consideration. Such lien as may have existed was, by this transaction, waived in respect to this portion of the original tract. The lien, then, is confined to the remaining portion of the tract, and as the legal title to that land is still in the complainant the only force of a decree would be to cut off the equitable title, which resides in the defendant, by force of the agreement.

But I find a difficulty in the way of making even this decree. It appears that the judgment was entered on the bond before the filing of this bill. The entry of the judgment would not extinguish the right of the complainant to pursue his equitable remedy. Graves v. Coutant, 4 Stew. Eq. 763, 780. But there is offered in evidence a copy of the judgment record, certified by the clerk of (Gloucester county, in which court the judgment was entered. Now a part of this record is the statement of the clerk that

“ by virtue of a special warrant of attorney, duly acknowledged, from Allan S. Morgan, attorney for Bebecca C. Morgan, in the record named, and to me directed, do acknowledge that the said Bebecca C. Morgan is satisfied of the debt and costs. Dated June 25, 1889.”

Here is a record evidence that the debt for which the lien is claimed passed unto judgment, which judgment has been satisfied. As long as this record stands it must be assumed that the debt has been paid.

I must advise a decree for the defendant.


text:
    St. Patrick's Alliance of America v. Joseph Byrne et al.
    [Filed October 30th, 1899.]
    1. The laws of a beneficial society provided for suspension of subordinate branches for default in certain payments to the national executive council.— Held, that since at the time of default there was no law by which such default operated as a suspension, and the resolution of the council fixing the date when the default should occur was not retroactive, a defaulting branch could not he legally suspended without a trial on notice and an opportunity to be heard.
    2. A corporation may be enjoined from using and doing business under the same name as another corporation, to the latter’s injury, where the latter first adopted the name, and the use by the former would be apt to deceive the public.
    3. Equity will not decide which of two sets of officers claiming to be the officers de jure of a beneficial society are entitled to the offices, unless some other equitable matter is involved in and requires the decision of such question.
    4. The fact that one of the rival claimants to an office of a beneficial association holds funds which he refuses to pay over to one claiming to be his successor, does not give a court of equity jurisdiction to determine their rights to the office.
    On. application for injunction.
    It appears that the complainant is a beneficial society with several organizations, the chief of which is the state council, and with a constitution which .establishes the supreme lawmaking power for such an association in. a general convention. The subordinate organization of the order are councils, in each state, district councils and branches. The national convention consists of delegates from the state and district councils and branches, each state council being entitled to three, and each district and each branch to one delegate. A state convention is composed of the president of each district convention, the president of each branch with one delegate elected from each district and each branch. The district council is composed of its officers and a post-president and two regularly deputed delegates from the branches comprising the district. The national convention each year elects a council whose duty it is to suspend any member, branch, district or state council, .after charges have been made and proved, which may refuse compliance with the laws; and the suspension of a member shall suspend him from the benefit of the branch or district to which he belongs.
    On February 6th the general law of the order required each branch to pay to the national executive council, within thirty days from Eebruary 1st of each year, a sum to be fixed by the national convention, not to exceed twenty-five cents for every member on the roll on the 1st day of January of that year. This law .vas changed by the national convention held in 1899, but by another law the alteration did not go into effect until April, 1899. The national convention at this meeting imposed a per capita tax of ten cents a member, which became payable by the law already mentioned on March 4th, 1899. Branches Nos. 1 to 15, excepting Nos. 7, 12 and 13 of District No. 7, failed to pay this tax.
    On July 27th, 1899, the national executive council passed a resolution that each of the said branches be notified that unless it paid the tax on or before August 15th, 1899, the council would suspend it. The resolution was sent to the recording secretary of each defaulting branch. Branches Nos. 1, 3, 10, 11, 14 and 15 failing to pay, were, by resolution, suspended, •which resolution was served upon each branch personally or sent by mail to its president.
    It is charged that the suspension of these branches disqualified each member of such branch from holding an office in the district convention or council. Among the officers of District Council No. 7, at the time of the suspension, was Brady, of Branch No. 15; William and John D’Arcy, Burns and Harwig, of Branch No. 1, and Mitchell and James Byrne, of Branch No. 10. This left ten unsuspended members out of the seventeen. Acting under color of district law No. 8, six of these ten made a requisition for a special meeting of the district council, which meeting may be called by a majority of the officers.' The council thus organized proceeded to fill the places of suspended members by the election of new officers.
    It is charged that the suspended members still claim to be officers of District- No. 7; that Joseph Byrne pretends to be acting president, and Thomas P. Burns claims to be recording secretary, and William S.-D’Arcy pretends to be treasurer of said district.
    It is charged that these parties are proclaiming themselves to be officers of and are exercising the functions of officers of this district; that they are using the name “District No. 7, St. Patrick’s Alliance of America,” which, they claim, is free from the supervision of the complainant; that they are inducing members of the unsuspended branches to become admitted to said suspended branches, and that such members have been deceived into joining the latter and so have lost the mortuary benefits; that Burns has refused to deliver up the seal to his successor and is using it to stamp his pretended official correspondence. It is charged that "William S. D’Arcy, treasurer, holds between seventy and one hundred dollars belonging to the district, which he fails to turn over to his successor after due notice to do so.
    The answering affidavits deny that the treasurer has any fund belonging to District No. 7, and also deny that the defendants are setting up a spurious District No. 7, as an independent organization. They deny that the defendants were suspended with the branches and their places were legally filled. They set out that the constitution of the society was illegally changed by the national convention, and that the national council are organizing new branches from which a class of persons are illegally excluded, and that the money which would be paid to the national council would be misapplied by its expenditure in paying the expenses incurred in organizing such new branches.

      Mr. William, M. Jamieson, for the complainant.

      Mr. James J. Cahill, for the defendants.
   Reed, V. C.

The bill, as already observed, charges that the several branches failed to pay the per capita tax which became due on March 4th, 1899, upon which failure each branch was notified that unless such tax was paid on or before August 15th, the council would suspend it; that upon failure to pay within the period the branches were, by resolution of the national council, suspended and were notified of such suspension.

The general laws, previous to 1899, said nothing about the suspension of a branch upon its failure to pay the tax imposed. The 'laws adopted by the national convention, in 1899, provided that the branch should pay such a tax within sixty days from March 1st or stand suspended. It is charged in the bill that this-law did not go into effect until April of that year.

If this is so, it was not operative upon the per capita tax which became due on March 4th previous. As the law stood on March 4th, when the several branches defaulted, there was no law which made such default operate as a suspension. The failure to pay was a violation of the law of the order, for which the national council, by-law No. 16, had authority to suspend the offending branch. This law, however, imposed the duty on the national council to suspend from the order,

"after charges have been made and proved, any member, branch, district or átate council which may refuse compliance with the laws of the national convention.”

This law contemplates a trial upon charges and evidence with notice to the defending member or branch. There appears to have been no such charges preferred, nor trial had, of any of the branches who received notification of suspension.

Whether the law passed in the convention of 1899 was self-executing, and only required as a condition precedent to suspension the existence of the fact of non-payment of the tax, and its subsequent notice of suspension, is a question upon which the authorities differ. But if self-executing, I do not see how it can affect these assessments. The annual tax for the year matured on March 4th. No new tax became due in that year, and the law which took effect on the 1st of next April was not retroactive.

The suspension clause had reference to the per capita tax payable in the future. The law did not extend the time of payment of the tax which had already matured, so that it became payable on May 1st; nor did it retroact, so that a previous default, ipso facto, suspended a branch. Therefore, if it be conceded that the suspension of a branch would have rendered its members ineligible to hold any offices in the district council, the case ■against the defendants fails.

But if it be true that the branches were legally suspended, how does the case stand? The complainant says that these officers, who were members of the suspended branches and whose places in the district council were filled by the remaining ■officers of that body, have set up an independent and spurious District No. 7; that they are using the name of St. Patrick’s Alliance of America,” and are, by the use of such name, depleting the membership of the old district. Now, it is undoubtedly ■the prerogative of a court of equity to enjoin a corporation that ■is using the name of another corporation to the injury of the latter. The name may stand as a trade-mark, which a court of •equity will protect against infringement. 1 Beach Corp. § 374; 10 Gent. L. J. 461; Holmes v. Holmes, 37 Conn. 278; Brooklyn v. Masury, 25 Barb. 416; Turton v. Turton, 7 Ry. & Corp. L. J. 64.

But the defendant denies that they are operating as a new •corporation. Their claim is that the branches óf which they •are members are loyal to the old constitution, and that those branches which have recognized an alteration in that instrument, which these defendants allege to be illegal, are the spurious branches. Or, to put it in another shape, it is a quarrel as to whether these defendants or the newly-appointed officers are ■the real officers of District No. 7.

Now, it is entirely settled that a court of equity will not decide which of two bodies of men represent a corporation unless some other equitable matter becomes entangled with this •question.

But it is said that the old treasurer holds funds of the district which he refuses to pay over to his appointed successor, and that this gives jurisdiction to decide the validity of his official character.

But the recovery of this money would be a subject not of equitable but of a legal remedy. Besides this answer, it is denied by the affidavits of the defendants that the said treasurer ■holds any money belonging to District No. 7.

Therefore, without considering the merits of the contest between these officers, I am constrained to the conclusion that there is no ground in the bill and affidavits for a preliminary injunction.


text:
    The City National Bank of Salem v. Caroline W. Van Meter.
    [Filed October 31st, 1899.]
    Where complainant had acquired an easement over defendant’s land for the ingress of light and air to a window of his building, he does not surrender such right by tearing down the old building for the purpose of erecting a new one where it clearly appears from the plans for the new building that a window will be in substantially the same place as was the window of the old building.
    In March, 1894, the owners of a building known as the Star Hall building, on the corner of Market street and "West Broadway, in the city of Salem, filed a bill to enjoin the present defendant, Caroline W. Yan Meter, the owner of an adjoining property, from erecting any structure which would obstruct the ingress of light and air through a window in the Star building.
    On February 24th, 1896, a final decree was signed in the said cause restraining the defendant from erecting any building or other structure in front of the window, in the first story of the north wall of the Star Hall building, which might interfere with the obstruction or access of light or air to the said building through said window. The opinion in that case is reported in Greer v. Van Meter, 9 Dick. Ch. Rep. 270.

    The Star Hall building has since been sold, and title to it came into the hands of the present complainant. During the early part of 1898 the complainant caused to be prepared plans for the erection of a new building on the site of the Star Hall building, and said plans designated a window in the same location as the window protected by the injunction in the former case.
    The defendant knew of the purposes of the complainant to put such window in the new building. The complainant demolished the old building, and proceeded to erect the new building and finished it. On June 20th, 1898, when the cellar walls of the new building were built up to the surface of the ground, on the side next to the defendant’s property, the defendant caused a brick wall eighteen inches in thickness to be built in a position which will exclude all light and air from the new window, as it would have excluded it from the old window. The new building is occupied as a bank, and the new window is intended to furnish light to the toilet-room, which, without such window, is too dark for such use without artificial light.
    It appears that before the obstructing wall to the defendant’s building was built up to the bottom of the old window, notice was served upon her by the complainant, forbidding the completion of her wall. • The old building was used as a clothing store, was two stories in height, fronting sixteen feet on Market street.
    The new building is three stories in height, and is four feet wider than the old one. The interior arrangements of the new is different from the arrangements of the old-

      Mr. William H. Hilliard, for the complainant.

      Mr. Norman Qtrey, for the defendant.
   Reed, V. C.

The decree in the former case established the right of the owners of the Star Hall building property to an easement in the property of the defendant, the extent of which easement was the right of access of light and air across defendant’s property through this window as light and air had been admitted in 1864.

The insistence made upon the part of the defendant is that the right to access to light and air through the old window was lost when the building in which the old window was placed was demolished.

Whether the owner of an easement has abandoned his right is a question of intention. Veghte v. Raritan Water Power Co., 4 C. E. Gr. 142, S. C., 6 C. E. Gr. 463; Johnson v. Hyde, 6 Stew. Eq. 632; McConnell v. American B. Pm. Co., 14 Stew. Eq. 447.

The rule in respect to the extinguishment of easements by an alteration has been stated thus: when the dominant tenement is so altered as to change the nature of the easement, the easement is extinguished. But the easement is not extinguished if the use is the same in substance though not in quality. 10 Eng. Rul. Cas. 294.

In Luttrell’s Case, 4 Co. 86a, 89a, one Cottrell claimed the right by prescription to have a stream run from a place called Head Wear to his two fulling mills. The fulling mills have been torn down and grist mills built in their stead, and for this reason it was insisted that Cottrell had lost his prescriptive right. But it was held that the implied grant to have a watercourse was to his mill and that he might alter the quality of his mill, provided no prejudice should arise thereby, either by diverting or stopping the water, as it was before. “So,” it was said, arguendo, “if.a man has an old window to his hall, and afterwards he converts his hall into a parlor or any other use, yet it is not lawful for the neighbor to stop it, for he shall pi’e-scribe for all the light in such part of his house.”

In Carlisle v. Cooper, 6 C. E. Gr. 576, 595, Mr. Justice Depue, in speaking of the extent of the right to flowage of water, said : “ The owner of the easement is not bound to use the water in the same manner or apply it to the same mills. He may make alterations and improvements at- his pleasure, provided no prejudice thereby arises to the owner of the servient tenement in the increase of the burden upon his land. * * * A change in the mode of use- or the purpose-for which it is used, or an increase in the capacity of the machinery which is propelled by the water, will not affect the right if the quantity used is hot increased and the change is not to the prejudice of others.”

Says Mr. Washburn:

“The act must he such as indicates an intention to extinguish the easement, or it must be something which enhances the burden upon the servient estate to the injury of some against the consent of the owner thereof.” Washb. Easem. 70S.

The question involving the destruction of the right to the enjoyment of light by reason of changes made in the building by the owner, the dominant tenant, was much discussed in the house of lords in the leading ease of Tapling v. Jones, 11 H. L. Cas. 290. In that case the plaintiff, while entitled to a right to light through certain windows, pulled down the houses and built on their site a new warehouse.

In doing so he altered the position and enlarged the dimensions ■ of the windows previously existing and increased the height of the building. He also put in new windows. The new windows and lights were so placed that it was impossible for the owner of the adjacent property to block them without also blocking those parts of the new window which occupied the site of the old windows.

The question was whether the owner of the servient tenement, for the purpose of preventing the access of light through the new windows from ripening, by user into a right, could- block them up, although, by such an act, he must necessarily obstruct the new windows, which apparently occupied the same place as the old windows. It was held (overruling Renshaw v. Bean, 18 Q. B. 112, and Hutchinson v. Copestake, 9 C. B. (N. S.) 863.) that he could not do so.

The point of the decisiou pertinent to the present case is that it was assumed that, although the plaintiff had torn down one and erected another building with new and enlarged windows, yet his right to receive light through the new windows remained unextinguished.

In Newson v. Pender, 27 Ch. Div. 43, an owner of an ancient dwelling which had numerous windows pulled it down and rebuilt it. A few of the windows in the new house included the space occupied by ancient windows, but were of larger dimensions. An ad interim injunction was granted to stay the erection of a building by the defendant which would materially interfere with the light coming to the complainant’s windows.

In Scott v. Pape, 31 Ch. Div. 554, a building with ancient lights was torn down, and new ones built higher than the old and lighted by larger and more numerous windows. The east wall of the new building was advanced so as to include part of what had been previously a part of the'yard. It was held that no alteration in the plan of the windows of the dominant tenement, either by advancement or setting back the buildings, would destroy the right to light, so long as he could show that he is using through the new aperture in the wall of the new building the same or a substantial part of the same light which passed through the old aperture into the old building.

It was held though the right was not in gross but one which must be claimed in respect to a building, yet it may be claimed in respect to any building which is enjoying the whole or a substantial part of the right which passed into the dominant tenement through the old aperture. It was also held in the last two cases that while an intention to abandon the right to light was one of fact, yet the destruction of one building and the erection of another building with windows which used the same light, where there had been no loss of evidence and no incapacity to prove the identity of the old light, and that which had been interfered with, was not proof of an intention to abandon.

The above case deals with ancient lights. But the question of abandonment or extinction is precisely the same in whatever manner the light may have arisen. Whether the right arose by prescription, which presumes a grant, or by express or implied covenant or reservation, or by an implied grant resulting from the sale of a part of the premises which has upon it an open and continuous easement, matters not, for the question is not how the right arose, but whether, if once existing, it has been extinguished.

It will be extinguished, undoubtedly, by any conduct on the part of the owner of the dominant tenement, which unequivocally exhibits an intention to .abandon it. Such an act is instanced by Chief-Justice Shaw in his opinion in Dyer v. Sandford, 9 Metc. 395, 402: “As where one takes down a building in which a window was placed and erects on the site a permanent tenement, so constructed as not to require or even permit a window similarly situated.” So, if such a building is removed and the site is turned into a park or garden, I have no doubt the right would be lost.

So, again, if the building is torn down and the locality of the old windows, from delay in rebuilding or from a failure to preserve evidence of their situation, cannot be proved, the .same result would follow.

But none of these conditions exist in the present case.

The plans for the erection of the new building admittedly showed a window in the same place as the old. The defendant was notified of the intention of the complainant to erect such new building with such a window. The new building was erected with reasonable expedition, according to the plans.

Therefore, the right still exists, and a decree will be advised in accordance with the prayer of the bill.


text:
    William Van Horn v. Michael C. Clark, William Clark and David Ryman.
    [Filed November 4th, 1899.]
    1. Where, by an agreement, each party was to bear one-half of the expense of laying an aqueduct from a spring, to be their joint property, each to be liable to pay one-half of the expense of repairing, in the absence of any further agreement each was entitled to one-half of the water conveyed by the main pipe.
    2. Where, by an agreement, each of two joint owners of an aqueduct was to tap with a three-quarter-inch pipe, and each party was to receive one-half of any amount collected from others for the privilege of using the water, the right of each party is limited to the insertion in the main pipe of a -three-quarter-inch service pipe, and each is entitled to the same quantity of water.

      3. Where the right of each party is limited to the insertion of a three-quarter-inch pipe in an aqueduct supplying them with water, and one of the parties makes other taps, and permits a third party to tap, without the consent of the other, he will be enjoined from using any taps other than those connected with the three-quarter-inch pipe, and the third party from tapping the pipe at all.
    On final hearing.
    The complainant has the right to draw water from a pipe running from a spring on the land of Mr. Clark. He brings this suit to restrain the defendants from infringing such right.
    The spring from which the water flows, was, in 1852, upon the property of Abraham and Isaac Wildrick, about a mile from the tavern where they lived. At that time, about fifty yards from the tavern, on the same side of the public road, lived Mr. Blair. It appears that Blair and the Wildricks agreed to put in a pipe to conduct water from the spring to their respective houses. Blair, who had the main pipe of the spring laid, first paid all the expenses, one-half of which were repaid to him by the Wildricks. The main pipe line was an inch and a half in diameter, and ended in front of Wildricks’ property, who tapped it with a three-quarter-inch pipe. Mr. Blair says that he himself tapped the main pipe with a three-quarter-inch pipe which he ran to his house, and which supplied with water the basement and first floor and bath-room upon that floor. The water ran into a box at the kitchen, and from the box ran into the bottom of a barrel sunk three feet in the ground at the barn and then continuously over the top of the barrel. The pipe also supplied a fountain in the yard. Besides using the water in this way themselves, Messrs. Blair and Wildricks permitted a Mr. Skinner to tap the main pipe and use the water to run a small machine.
    In March, 1857, the Wildricks sold a part of their land through which this pipe ran to Jacob A. Skinner. The deed contained a reservation of all rights to the said pipe and a privilege to enter the property conveyed for the purpose of repairing and relaying and continuing the same on the said lands.

      On March 30th, 1867, Skinner sold this portion of land to Vleite, who, on January 24th, 1874, sold it to John S. Ryman. Both of the two last deeds contained the same reservation as the first.
    In January, 1866, Mr. Blair sold his property to John Moore, who afterwards sold it to the complainant, "William Van Horn. The Wildricks, who still owned the tavern property, on October 1st, 18'66, entered into a written agreement with John Moore, the then owner of the Blair tract. This written agreement recited that by a verbal agreement between the Wildricks and Blair these parties had procured the right to lay an aqueduct of iron pipes from a spring of water on lands of the Wildricks, through their lands, for the purpose of bringing the water from the spring to the village of Marksboro, immediately in front of and into the buildings belonging to the parties, the Wildricks being at half the expense and Blair at half, the said aqueduct to remain the joint property of the said parties and their several heirs and assigns, each party, their heirs or assigns, to have the privilege of entering on the said land for the purpose of repairing said aqueduct when repairs were necessary, doing no unnecessary damage to the lands, each party or their assigns to be at half the expense of all necessary repairs to the spring and main pipes. Also, each party, their heirs or assigns, should have the right and privilege" to insert a pipe or pipes into the main pipe of not less than at their own expense, for the purpose of supplying their own lands and buildings with water, and that each party should be entitled to the one-half of anything received from other persons for the privilege of using said water. The written agreement, after this was recited, proceeded :
    “And -whereas the said John Moore is now the owner of the Blair lot referred to in the said agreement, the said James Blair having conveyed the same to the said John Moore by deed bearing date the 22nd day of March A. D. 1866, also all the said Blair’s rights, title and interest in the said aqueduct and water works, now, it is agreed by and between the parties that the said spring, aqueduct and water works shall remain under the control of the said parties, with the same rights and privileges as the said James Blair had at the time he conveyed the property to the said John Moore.”

      This agreement was signed by the Wildricks and Moore.
    The Wildricks subsequently conveyed the Van Horn property to George B. Swain, subject to the right and use of the spring and pipe leading therefrom, on the lands owned by Moore. While Mr. Swain owned the tavern property and Mr. Van Horn, who purchased from Moore, owned the Blair property, they agreed to lay a new pipe in the place of the old one, which had become worn out. The expense was ultimately borne by Mr. Swain, Mr. Van Horn and a Mr. Budd, who, because of his payment, was accorded the privilege of using a part of the water. At the time of the laying of the new and larger pipe it was agreed between Mr. Swain and Mr. Van Horn that if any of their neighbors wanted water they would let them have it on certain conditions, but they having found on the first subsequent summer that there seemed to be a, lack of water at the spring, they abandoned the idea of selling any water, and said they would not give anybody the right to use it. . It -was also- agreed, at the time of the enlargement of the pipe, that each party should insert into the main pipe a three-quarter-inch pipe, to conduct water to his buildings. Mr. Swain says, at this time — the main pipe being laid on the opposite side of the street from the buildings — the three-quarter-inch pipe ran to a water-trough, and then a small pipe went into the hotel, behind the bar.
    On April 9th, 1894, Mr. Swain sold the tavern property to the defendant William H. Clark, by a deed containing the reservation already mentioned. Besides this reservation contained in the deed, Swain called the attention of Michael C. Clark, who was the agent of his brother in making the purchase, to the agreement concerning the water rights between Moore and the Wildricks.
    Since Clark’s purchase of the tavern property, he has enlarged the hotel. The pipe that now leads from the main pipe is one and one-quarter inches in diameter. This pipe runs to within a foot or two of the horse-trough, and from it three pipes lead off from this pipe, viz., a three-quarter-inch pipe to the horse-trough, a three-quarter-inch pipe to the hotel, bar-room, lavatory, water-closet, kitchen, &c., and another thres-quarter-inch pipe leading towards the new portion of the hotel. Besides these pipes leading to the hotel building, Mr. Clark has tapped the main pipe with two half-inch pipes leading to the stables. In addition to these pipes, inserted for his own use, Mr. Clark had given permission to Mr. Ryman to tap the pipe that runs to Budd’s, already mentioned. ■ The complaint of the complainant is that Clark together with Ryman have drawn water from the main pipe in such quantities as at times to deprive him of the quantity of water to which he is entitled.

      Mr. George M. Shipman and Mr. Flavel McGee, for the complainant.

      Mr. William II. Morrow, for the defendant David Ryman.

      Mr. Henry S. Harris, for the defendant "William H. Clark.
   Reed, V. C.

This case was before the chancellor upon demurrer to the bill. The opinion in the ease is found reported in 11 Dick. Ch. Rep. 476. It was decided that Blair, by force of the executed parol agreement, and Moore, by the written agreement with the Wildricks, got a right to use the pipe as an aqueduct, and the spring as a source of supply which was appurtenant to their land, at least so long as the necessity for its use remained, and therefore when Clark purchased from the Wildricks, he took the property subject to this easement.

The questions now presented on this final hearing are, first, what is the extent of the complainant’s rights? and second, have the defendants infringed them ?

First, then, to what amount of water is the complainant entitled? It is insisted by the counsel for the defendants that he is only entitled to that amount of water which he originally had. It is insisted that each party originally put in a pipe three-quarter inches in diameter, and thus fixed the size of the pipe, which was left blank in the recited verbal agreement.

Indeed, it is insisted that Blair tapped with his three-quarter-inch pipe, not the main pipe but a five-eighths-inch pipe leading from the main pipe, and that, therefore, his right to water was-thus fixed at such quantity as will flow through a pipe five-eighths of an inch in diameter.-

But in my judgment the right of Mr. Van Horn and of Mr. Clark are similar. The terms of the verbal agreement, as they are stated by Mr. Blair and as they are recited in the written agreement between Moore and the Wildricks, demonstrate this. By the recited agreement each paid one-half of the expense of laying the aqueduct, and it was to remain the joint property of the parties, each being liable to pay one-half of the expense of repairing the pipe. Each originally had the right to. insert a pipe of the same size, and in the absence of an agreement upon a size each had the right to one-half of the water conveyed by the pipe. When the pipe was relaid and a pipe of larger bore was substituted under the arrangement detailed by Mr. Swain, the parties obtained equal rights in the water conveyed by the new pipe. This, however, did not' mean that each party was entitled to abstract one-half of all the water conveyed.

What portion of the amount of water conveyed by the pipe each was to take is fixed by the agreement and by its practical construction. As already remarked, the size of the pipe which-each party was to insert into the main pipe for his own use was left blank, but it is apparent that any size that could be inserted must be common to both parties. They did each insert a three-quarter-inch pipe. When the main pipe was taken up and the new and larger pipe was substituted, it was agreed, said Mr. Swain, that each should lay a three-quarter-inch pipe to his premises.

These pipes would not carry all the water flowing through the main pipes, but it was not intended that they should. Mr. Budd, who then owned the Skinner property already mentioned, was permitted to use some water, and the agreement was still in force that each party should be entitled to one-half of anything received from other persons having the privilege of using the water. Whether or not the right of each party in the use of the water was confined to the quantity that would flow from a three-quarter-inch pipe, it was clear that each party was entitled to the same quantity.

In either view, the testimony exhibits, as I shall hereafter show, that the defendants have used more than their share of the water carried by the new main pipe. But I am of the opinion that, under the agreement between the parties, the right of each was limited to the insertion in the main pipe of a service pipe three-quarters of an inch in diameter. Each could use or waste the water so delivered as he pleased, but the remaining water, I think, belonged to the parties jointly. They could agree to enlarge their own pipes or to permit anyone else to take water from the main pipe. The water was to be primarily for the personal use of the parties, and no use could be conceded to any other person without the joint consent of the parties. Assuming, therefore, that Mr. Van Horn and Mr. Clark each has a right to the flowage of water through a three-quarter-inch pipe, as it flowed when the main pipe was originally laid, the second question occurs whether this right of Mr. Van Horn has been infringed by the defendants.

The total area of the two-inch main pipe is 3.1416. Mr. Budd was permitted to use a three-quarter-inch pipe, having an area of .4416. This leaves an area of 2.7 for Clark and Van Horn or 1.3499 each. How, there are in front of the hotel three three-quarter-inch pipes, the area of which is 1.3253. Then there are two one-half-inch pipes to the stable, having areas of .3297, making a total of 1.7180. Then there is a tap on Ryman’s property, which is a three-quarter-inch pipe, with an area of .4416, making altogether an area of 2.1598. This would leave for Mr. Van Horn .54.

Assuming, therefore, that the Wild ricks had the right to one-half of the water, after deducting Budd’s tap, instead of taking 1.3499 they are taking 2.1598.

If Clark’s right is limited to a pipe three-quarters of an inch in diameter, instead of taking .4416, he is taking nearly five times that amount.

In my judgment, as already remarked, without the consent of Mr. Van Horn, Wildrick has no right to take any more water than can be drawn from the main aqueduct through a pipe three-quarters of an inch in diameter. He has no right himself, nor has he a right to permit any other person to withdraw from the main pipe a larger quantity of water. His permission to Ryman to tap the main pipe was entirely without authority. Now, the result of the abstraction, of this amount of water has been to deprive Mr. Van Horn of the original flowage through his pipe. It is true that this effect is not continuous, but intermittent. The deprivation of water or force occurs when the taps other than those connected with the three-quarter-inch pipe to the Wildrick’s tavern happen to be open at the same time that the Van Horn taps are in use. But these annoying interruptions are not infrequent, and against them Mr. Van Horn has the right to be protected. In respect to the purposes for which the water flowing through the three-quarter-inch pipes to Mr. Van Horn’s is used, nothing need be said. It is clear that he has the right to use the amount of water which he originally used for the purposes to which it is now devoted.

I shall advise a decree enjoining the defendant Clark from using any taps other than those connected with a three-quarter-inch pipe leading to his hotel, and Ryman from tapping the' pipe at all.


text:
    William Warwick v. Stephen D. Ely et al., executors, &c.
    [Filed November 10th, 1899.]
    1. Pecuniary legacies bear interest after one year from the testator’s death, though the will gives the executors three years in which to settle the estate, “ if they think that time advantageous.”
    2. In an action for a legacy against executors in their representative capacity, they cannot set off a claim against the legatee for rent due to them as residuary devisees or as heirs of the testator.

      On final hearing.
    This bill is filed to recover two legacies. Joseph J. Ely left in his will $100 to each of his grandchildren, including Joseph J. Ely, Jr., and Andrew J. Ely. These legatees have assigned their interest in the legacies to William Warwick, the complainant, who now sues the executors to recover the legacies, with interest thereon, from a period beginning from one year after testator’s death.

      Mr. Aaron V. Dawes, for the complainant.

      Mr. Richard M. J. Smith, for the defendants.
   Reed, V. C.

The defences interposed to. the claim of the complainant are two. It is first insisted that interest began to run upon the legacies at the end of three years from probate instead of at the end of one year from the date of testator’s death.

The second defence is that the executors .have a' set-off against one of the legatees and his assignee.

First, then, in respect to the matter of interest.

It is admitted by the defendants that, as a rule, interest begins to run upon a general legacy one year from the testator’s death. It is insisted, however, that these legacies are aside from the general rule, by reason of the following clause in testator’s will:

“I hereoy appoint my two sons, Stephen D. Ely and Joseph Addison Ely, executors of this my last will, authorizing them at their discretion to employ able law counsel, and I give them three years in which to settle my estate, if they think that time advantageous.”

It is insisted that as the legacies were not payable until the end of three years from the time of probate of the will, therefore interest does not begin to run upon, them until they become payable.

It is, of course, entirely clear that no duty to pay these legacies arose during the period of the three years, because there was imposed upon the executors no duty to settle the estate in less than three years. No payment, therefore, could have been successfully demanded. If, therefore, as an inexorable rule, the right to interest begins only when a right to claim payment accrues, the position taken by the counsel of the defendants would be logically unassailable. But it does not seem to be an invariable rule that the right to interest depends upon the right to claim payment. A conspicuous instance of the last statement is furnished by'the decisions of the courts, as to the effect upon the general rule that interest shall begin to accrue one year from testator’s death, of those statutes which make legacies payable one year from the date of the letters testamentary instead of at the eud of one year from testator’s death. If interest depends entirely upon the right to claim payment, then the reason of the rule, as Judge Woerner remarks, would make interest payable, under these statutes, one year from date of letters testamentary. Woerner Am. Adm. (2d ed.) § 458. Indeed, some courts have so held. But the court of appeals of this state, in Davison v. Rake, 18 Stew. Eq. 767, affirming a decree advised by Vice-Chancellor Van Fleet, held otherwise. Mr. Justice Depue, in delivering the opinion of the court of appeals, uses this language : “ For the sake of general convenience, the court holds that personal estate should be reduced into possession at the expiration of one year after the testator’s death, and upon that ground interest is payable upon general legacies from that time, unless some other period for the payment of the legacies is fixed by the will. Actual payment may, in many instances, be impracticable within that time, yet in legal contemplation the right of payment exists, and carries with it the right to interest, until actual payment is made.”

The question now propounded was before the supreme court .of Rhode Island, in the case of Spencer’s Petition, 16 R. I. 25. The will in that case provided that the executors thereof should have five years to settle the estate, yet it was held that the pecuniary legacies bore interest after one year from the testator’s death. The reasoning of Chief-Justice Durfee in that case is especially applicable to the facts in this case and need not be reproduced. He cites with approval the case of Kent v. Dunham, 106 Mass. 586, 591, in which case the court said ‘‘ that interest is allowed on the principle that it follows as an accretion to the principal legacy, and does not depend on demand or default. It may be said that it is a rule which reduced to a certainty what might otherwise be the conflicting exercise of discretion by the executors or the court.”

Hor do I see that the insistence that the testator contemplated a litigation, which he knew would prolong the period of the settlement of his estate for more than a year, can in any way •change the doctrine thus announced. Whatever may have been the reason for giving,three years for the settlement of the estate— whether it was on account of the several inherent difficulties of the administration or on áccount of the prospective contest over the probate — does not matter, for it would be the fact that he •gave the three years rather than the reasons for giving it that would fix the time for the beginning of interest, if the general •rule was changed at all. I am of the opinion that the legatees are entitled to interest after one year from testator’s death.

The second question is whether the executors are entitled to ■offset an item of rent alleging to be due from Joseph J. Ely, •one of the legatees, under the circumstances which the counsel for said legatee offers to prove. I say offers to prove because it is stipulated between the counsel that if the court holds that the offer of the defendant is a defence, then he shall be permitted the opportunity of proving it. The offer is to show that this legatee was in possession of a farm belonging to the testator at the time of and for one year after testator’s death. It is admitted ’that rent was paid by him up to the time of the testator’s death, but the unpaid rent, accruing subsequently to the testator’s •death, amounts to the sum of $300. It is offered to prove that the assignee, at the time he took his assignment of the legacy, knew of the existence of this debt.

The land occupied by the legatee was devised to Stephen D. :and James A. Ely, who are the executors of the will. Or, to state it more accurately, they, having a power of sale of this and other property, were the beneficiaries of the fund received from the sale.

Now, it is apparent that the rent due after the death of testator did not belong to his estate and could not be recovered by his personal representatives. If the will had been refused probate the rent would have belonged to the heirs of the intestate; the will being proved; it belongs to the devisees. Whether, during the abeyance of the execution of the power to sell, the rent belonged to the beneficiaries under the will of the testator or to his heirs does not matter, for in no aspect can the rent belong to the personal representatives. Tayl. Land. & T. § 309.

Now, the executors wish to set up a claim which they hold as residuary devisees or in which they hold a part interest as one of several heirs, against a claim preferred against them as the personal representatives of the testator. It is perceived that the right in which they claim the rent and the right in which they defend this suit are radically different. They could not sue for this rent as executors. If the claimed offset is permitted the estate would be entitled to the benefit of the application of the rent and the executors would be entitled to an allowance for a legacy as paid and would so hold so much of the assets for their own personal benefit. Neither in equity nor in law can a set-off be sustained unless the claims are mutually held in the same right, unless, in the latter court, a peculiar equity is created by the circumstances. Black v. Whitall et ux., 1 Stock. 572-577; Brewer v. Norcross, 2 C. E. Gr. 219, 226. There is no equity which will permit this'set-off, so the rule must control that personal representatives cannot, in an action against them in their respective capacity, set off a debt due to them personally. Stickney v. Clement, 7 Gray 170; Bradshaw’s Appeal, 3 Grant Cas. 109.

I am constrained to the conclusion that the evidence tendered to prove a set-off is incompetent for that purpose. The complainant is entitled to a decree for the amount of the assigned legacies, with interest from September 13th, 1896.


text:
    Cumberland Glass Manufacturing Company v. The Glass Bottle Blowers’ Association of the United States and Canada, Dennis A. Hayes et al.
    [Filed December 14th, 1899.]
    1. Under Paraph. L. 1883 p. 36, making it lawful for workmen to combine to persuade any person or persons, by peaceable means, to enter into a combination for entering or leaving the employment of any person or corporation, the mere stationing of striking workmen to watch the employer’s premises for the purpose of seeing who can be made the subject of peaceable persuasion to strike is not of itself sufficient to warrant a preliminary injunction, unless it appears that the purpose of the guard is also to coerce actual or prospective employes by non-peaceable means to quit work.
    2. The court of chancery has jurisdiction to enjoin a continuing trespass or injury to property, ¿hough such trespass or injury may also involve a crime.
    3. Where more or less continuous acts of violence are indulged in by striking workmen, consisting in the assembling of crowds at the employer’s premises, in the streets and at the railroad station, which occasionally attack property, use abusive language towards employes, forcibly interfere with persons seeking to enter the premises, and forcibly intercept the employer’s incoming workmen at the railroad station, such acts and conduct furnish grounds for an injunction restraining those participating from so interfering with engaged workmen, notwithstanding instructions to strikers to use only peaceable methods in persuading others to quit work.
    4. Neither a workmen’s association, conducting and financially supporting a strike by its members, nor the president of such association, who organizes and directs such strike, confers with its leaders, disburses the financial aid to strikers, and promises it to others on their striking, will be enjoined at suit of the employer to restrain interference with engaged employes, neither having authorized, encouraged, known of, nor tacitly approved any acts of violence.
    The bill of the complainant sets out that it is a manufacturer of both window glass and hollow ware; that on March 16th,-1899, it received a letter from Dennis A. Hayes, president of the Glass Bottle Blowers’ Association of the United States and Canada, stating that the non-union glass blowers of South Jersey had organized aud agreed that they should ask their employers to concede them such wages and privileges as had been agreed upon between the union manufacturers aud their employes.
    The letter requested a meeting to discuss this matter. Those manufacturers who had received copies of this letter met and appointed a committee to confer with Mr. Hayes. This committee being unable to come to an agreement with Hayes, suggested the appointment of an arbitration committee, to which suggestion Mr. Hayes refused to accede, and declined to consider any proposition which did not include an increase of wages and a reduction in the number of future apprentices, and the subjection of all manufacturers to the domination of the defendant association. They thus failed to agree, and on April 8th, 1899, all the journeymen blowers and finishers, with two exceptions, in the hollow ware department of complainant’s works left their work while the molten glass was in the furnace and tanks, and this branch of work has since been idle.
    The bill further states that Hayes lives in Philadelphia, but came to Bridgeton and directed the strike either personally or through orders issued by him to William M. Doughty, Charles Doughty and George W. Branin, none of whom are residents of Bridgeton, but who, since the strike, have been continuously in said city conducting it; that Mr. Hayes, William Banning, secretary; Conrad Auth, its treasurer, and William Doughty and George W. Branin, members of the executive committee of the Glass Bottle Blowers’ Association, have furnished sums of money to prevent the workers from returning to their work; that two branches of said association, namely, No. 8 and No. 19, have been organized in Bridgeton to assist in disbursing said sums; that certain persons acting by advice of said association have congregated in large numbers, some armed with clubs, about the approaches to complainant’s factory, and by threats and force have coerced and intimidated such workmen as have offered their services to complainant; that they not only guarded such approaches, but guarded all railroad stations to prevent, by violence, all who offered, their services to complainant; that complainant has been compelled to lodge thirty of its employes within their works, to protect them from injury, and that the strikers have attacked and maltreated those about to enter complainant’s works.
    The answer admits the writing of the letter by Hayes, but states that the non-union workmen requested him to do so. It denies that the proposition for an arbitration committee was actually made by the committee of manufacturers, but states that Hayes agreed to a meeting of the counsel of the manufacturers and of the association if the former would agree to continue their artisans at work uninterruptedly and would agree to abide by the terms for the next fire as they should be fixed at the ensuing July conference between the manufacturers’ association and the defending Glass Bottle Blowers’ Association, and that this proposition was repudiated by the complainant that the workmen voluntarily left work upon this refusal and joined the Glass Bottle Blowers’ Association.
    ■ The answer admits that workmen who ceased labor for this reason are entitled to a stated sum per week. It admits the organization of branches Ho. 8 and Ho. 19 at the request of the workmen. It admits that they, without violence, have sought to persuade each artisan to join their association, but denies the commission of any act of violence.
    The affidavits attached to complainant’s bill are, in substance, to the following effect:
    [Here follows substance of affidavits.]
    That from the inception of the strike the street in front of the entrance of the works of complainant has been constantly occupied by bands of strikers — some armed with clubs — and that they used indecent and threatening language to the workmen of complainant, and that they interposed physically between the entrance and anyone,wishing to enter or were suspected to be a prospective employe; that they threw bricks and stones against the house and fence of the company and into the house of one who lodged the workmen of the company; that employes and those suspected of seeking work were held up and insulted and threatened on the street and in the city cars; that the platform of the railroad stations, on each arrival of a train, was crowded with strikers, and workmen were sought out and physically pushed into the headquarters of the strikers, where they were half persuaded and half coerced into abandoning their intention of working in complainant’s factory; that incoming trains with workmen on board were bombarded with stones, and the persons in charge of these workmen were struck and seriously injured.
    The manner in which the several defendants named in the bill were connected with the transactions thus detailed will appear by the further proofs contained in the affidavit .of the complainant, and how far the force of the testimony of complainant’s witnesses is modified by the affidavits of the defendants will appear by a statement of the substance of the latter affidavits attached to the answer.
    [After stating the substance of these affidavits at length the court proceeds.]

      Mr. Walter H. Baeon, for the complainant.

      Mr. John W. Wescott and Mr. John J. Crandall, for the defendants.
   Reed, V. C.

Before drawing my conclusions as to the facts proved by these affidavits, I will state the general doctrine, as I understand it, which controls the liability of the defendants to an injunction.

Every employer has the right to engage, or refuse to engage, whomsoever he chooses, just as every workman has'the right to enter, or refuse to enter, the service of any employer as he may choose. Apart from obligations arising from special contract for employment, or for services, for a specified period of time, every employer has the right to discharge a workman, and every workman has the privilege of leaving the service of his employer, at his pleasure. The freedom of the individual workman to seek employment, and of the individual master to give or refuse employment, belongs to every citizen. Formerly a concerted act, by which a number of workmen combined to leave a master’s employment simultaneously, or to persuade other workmen to leave his employment together, for the purpose of injuring his business, or of cqmpelling him to concede increased wages, or to hire or discharge particular workmen, was an indictable conspiracy. It was, however, held, in the case of Mayer v. Journeymen Stone Cutters’ Association, 2 Dick. Ch. Rep. 519, that since the passage of the act of 1883, page 36, a combination, which before that time would have been held to be a conspiracy, became by the force of this statute a lawful combination. This act has not been repealed. By its terms it is lawful for workmen to combine to persuade, by peaceable means, any person or persons to enter into any combination for the leaving or entering into the employment of any person or persons or corporation.

The purpose of the act was undoubtedly to legalize strikes, i. e., the organization of concerted simultaneous cessation of work by bodies of workmen.

The words employed by the statute cover a combination for the purpose of persuading others to combine for the purpose of entering or leaving an employment. The words would seem to intend a legalization of'a combination to induce others to join in a strike, and are perhaps broad enough to legalize a combination to persuade individual workmen to quit or refuse to enter the service of any person or persons or corporation.

According to the act the means adopted must be peaceable, as the words “ persuade, advise or encourage ” indicate, without the use of the words “ by peaceable means.” Therefore, the methods adopted to induce a workman to quit or to refuse to enter an employment, must be persuasive and not coercive.

It is entirely settled that the moment that individuals either singly or in company, for the purpose of compelling a master to accede to their views, use force or threats of force, or in any way injure or threaten to injure either the master, or those working or wishing to work for him, the act becomes illegal. Interference with the movement of employes, in passing in and out of their employer’s factory, or the use of abusive language upon the street or elsewhere, towards such employes, indeed any conduct which is calculated to induce those working or wishing to work, against their wish, to abandon their work or their intention to seek work, are within the limits of coercive conduct. There is no contrariety of judicial view in respect to the illegality in the use of any act which is calculated to coerce, but in respect to what acts are to be regarded as coercive, there is naturally more difference in judicial sentiment. It finds expression mainly upon the fact of “ picketing ” — that is, by relays of guards in front of a factory or the place of business of the employer, for the purpose of watching who should enter or leave the same.

In Sherry v. Perkins, 147 Mass. 212, the workmen hired a boy to carry a banner in front of complainant’s factory, upon which was inscribed, “ Lasters are requested to keep away from P. P. Sherry’s. Per order L. P. U.” The complainant would not pay the wages as fixed by the Lasters’ Protective Union. An injunction went because this conduct injured complainant’s business by intimidating workmen, so as to deter them from keeping or making engagements with the plaintiff.

In Vegelahn v. Guntner, 167 Mass. 92, the workmen placed two men in front of complainant’s place of business, who were changed every hour from half-past six o’clock in the morning to half-past five o’clock in the afternoon. An injunction went by the judgment of a divided court, the majority seeming to hold that the “picketing” itself was unlawful, although the injunction as actually drafted was against picketing for the purpose of preventing any person or persons who may be now or hereafter in his employ, or desirous of entering it, from entering it or continuing in the same.

In Beck et al. v. Railway Teamsters’ Protective Union, 42 L. R. An. 407 (1899), it was held that a “picketing” of the premises of a person boycotted, in order to intercept its teamsters or to prevent persons going there to trade, is unlawful. In that case members of the union followed complainants’ teamsters along the street, halloaing at them and using abusive language, and intercepting upon the street those who were going to the mill with their teams. An injunction was ordered.

In American Steel and Wire Co. v. Wire Drawers’, &c., Union, 90 Fed. Rep. 608, Mr. Justice Hammond regarded the use of the streets in front of the factory by a large number of strikers as in itself an unlawful occupation of the streets and calculated to intimidate those working or passing into the works.

The same view seems to have been taken by Mr. Justice Goff in Mackall v. Ratchford et al., 89 Fed. Rep. 41, who enjoins the marching or countermarching of strikers in the street in front of complainants’ place of business.

It is reported in Case and Comment of August, 1899, that in the case of Winslow Brothers’ Co. v. Building Trades Council, Mr. Justice Holdron, of Chicago, refused an injunction against “picketing.” It was against, in the words of the judge, “that picketing which is simply the active watch by workmen belonging to those lodges, or associations, or unions, of others so that they may know what is going on and what is done.” Yet it is said that the judge cited with approval the case of Beck et al. v. Railroad Teamsters’ Protective Union, supra, and Vegelahn v. Gunther, supra, in which case, as we have seen, the court seemed to hold that the picketing was in itself an intimidation. Looking at the form of the injunction in the latter case, in connection with the views expressed in the opinion, and in the absence of any case in the courts of this state, I cannot say that the law is so settled that a preliminary injunction can go upon the notion that picketing, without some other act evidential of coercion, is in itself evidence of intimidation. The decision of the question, I think, must depend upon the circumstances surrounding each case. There must be taken into account the size of the guard, the extent of their occupation of the street, and what they say and do. Taking every circumstance into account, if it appears that the purpose of the picketing is to interfere with those passing into or out of the works, or those wishing to pass into the works, by other than persuasive means, it is illegal. If the design of the picketing is to see who can be the subject of persuasive inducements, such picketing is legal.

Before turning again, to the testimony, I will nlention a point made by the defence regarding the equitable grounds upon which the bill is filed.

The defence insists that the bill sets out a series of trespasses or crimes, and that this court is asked to enjoin the commission of further similar trespasses or crimes.

The jurisdiction of the court of chancery to enjoin a continuing trespass or injury to property, although it may involve a crime, is entirely settled. The court ignores the crime and protects the complainant’s property or business from civil injury. The jurisdiction of a court of equity to restrain acts like these charged in the bill, is entirely established. Barr v. Essex Trades Union, 8 Dick. Ch. Rep. 101; In re Debs, 158 U. S. 564; Cœur D’Alene Consolidated Mining Co. v. Miners’ Union, 51 Fed. Rep. 260; Vegelahn v. Gunther, supra, and cases cited.

It remains to draw conclusions in respect to the facts proved, as applicable to the doctrine thus stated.

It will be perceived from an analysis of the testimony that the general condition of affairs, as detailed by the complainant’s witnesses, is not materially changed by the answering affidavits. It is true that each one of the defendants denies, with more or less explicitness, that he was concerned in the specific acts charged against him. The fact, however, that there was disorderly and unlawful conduct on the part of very many of those engaged in the strike, is not refuted. There is no doubt that on April 13th, there was practically a riot at the railway station on the arrival of thirteen workmen ; that on May 7th there was a riot at the station on the arrival of four new.workmen ; that on May 10th the same thing occurred on the arrival of four more workmen, on which occasion the switch on the railway spur leading into complainant’s yards was spiked, and the boarding-house, wherein a number of employes of complainant were lodged, was bombarded with bricks and stones; that on May 13th the wagon of complainant was mobbed; that on May 18th Hairy Nichtol was grabbed by five men as he stepped from the train, who thought him a prospective employe; that on May 25th, Davis, the complainant’s team driver, had his wagon stopped, and when he came to where there was a lot of strikers, he was hit on the head with a brick; that on June 7th and 10th there was disorder at .the station on the arrival of four men, two of whom were dragged and pushed out of the station, and on July 10th the wagon of complainant, which had gone to the station for another workman, was attacked.

On July 9th Harry Hessert came to complainant’s works with his brother and was detained by those who were engaged in the strike.

On July 13th a train with twelve workmen was attacked; the windows of the train were- broken with stones; King was seriously injured and the workmen were pushed up into the headquarters of the strikers; that on July 24th John Brown’s boys were taken to the strikers’ headquarters, into which the father, with an officer seeking them, was refused admittance; on July 14th Lee, after being stopped by those engaged in the strike, finally got into the works of complainant and was told that he would not be there next week, for they would come and clean out the place.

There are other instances stated without dates.

It is entirely clear that almost continuously large bodies of men were in the street, in front of and around the factory of the complainant, and that large bodies of men attended the arrival of each incoming train.

Now, the force of the testimony is that while the directions to the guards and strikers in general may have been to employ only persuasive methods to induce workmen to quit the service of complainant or to refrain from entering into its service, coercive measures were in fact resorted to. It is not surprising that this should be so. "When large bodies of men are combined to bring about a purpose, in the accomplishment of which their feelings and passions are involved, the line which separates argument from force is not readily recognized, or if recognized, not easily observed. Nevertheless, each man is bound to observe the right of the employe and employer to employ or seek employment undeterred by coercive influences. Now, it goes without saying that the bombardment of complainant’s fences and the boarding-house, the attack upon incoming trains carrying employes and the physical interference with or interception of workmen were illegal acts. So, too, I think, was the gathering of large crowds of workmen about the railroad station to assist in th.e interception of workmen. The.actual outcome of such a crowd was seen at each arrival. The newcomers were surrounded and jostled and pushed along until they were landed in the headquarters of the strikers. It is almost a physical impossibility for the workmen to move otherwise than according to the will of the crowd, however much they may wish to do so. In respect to the crowd guarding the works, the question is whether it can be regarded as merely picketing for the purpose of seeing what was going on or whether it was there for the purpose of exercising a coercive power upon those who came to work or those already working for the complainant.

Taking the testimony so far as it stands substantially uncontradicted, I conclude that the crowds spoken of in the complainant’s affidavits as “guards,” judged by their size and acts, were designed for coercive as well as persuasive purposes. Conceding that a number of strikers could remain in the vicinity of the factory yard to see what was going on, yet when the number became a crowd, and when the acts of the crowd expanded into occasional attacks upon property, and abusive language towards employes, and interference with those seeking to enter the yard, the “guard” became a coercive instrument. A permanent guard in a public street, in front of citizens’ houses or factories, is in itself a nuisance.

But it remains to consider how the testimony stands in respect to the participation of the several defendants in any of the acts above set out. I think that the affidavits of Cramer, Garrison, Gilliland, Hamilton, Carl, Marks, Mayhew, Clark, Samuel T. Moore, Nelson, Redfield, Schafer and Swain are such as to relieve them, from liability to restraint under this rule.

In respect to Mr. Hayes, I have come to the same conclusion. He undoubtedly had the right to aid in the organization of the strike, to confer with the leaders of the strike, to direct the payment of funds to those who struck or promised it to those who would strike. He denies that he said that he would not mix with the men at headquarters for fear that if there should be any violence the authorities would put him to trouble. Upon the face of the affidavits it does not appear that Hayes encouraged any violence or that he knew of any violence which he tacitly or expressly approved. Nor do I see how the Glass Bottle Blowers’ Association can be enjoined for the same reason.

I am of opinion, however, that there should be an injunction against Branin, Quick, Sumen and Wilkens, who were on guard at the works or boarding-house, and against Hill and Henry, who also were at the railroad station; against Charles and William M. Doughty, Gamble and Thoburn, who were in the crowds at the railway station^ and the former of whom took Hessert to headquarters; against McQuigg, who took the Brown boys to. headquarters, and against Flagg, who took the Hessert brothers to headquarters and kept them there, and against Sourder, who does not deny that he stopped an employe from going into the mill.

I will settle the form of the decree upon notice.


text:
    The City of Cape May v. The Cape May, Delaware Bay and Sewell’s Point Railroad Company, The Cape May Transportation Company and J. Henry Edmunds.
    [Filed December 19th, 1899.]
    1. Where a corporation legally leases its property for a term of years, though for a sum insufficient to pay interest on its bonds, a receiver will not he appointed at the instance of a stock and bondholder, in the absence of mismanagement by the directors, since all the receiver could do would be to collect the rents subject to the lien of the mortgage.
    2. Where one corporation, leasing the property of another, has no assets but the remnant of the term, and cannot operate under the lease at a profit, the lease has no value, and hence the appointment of a receiver is not justified.

      On application for receiver.

      Mr. 8. Spicer Learning and Mr. Robert McCarter, for the complainant.

      Mr. Thomas E. French, for the Cape May Transportation Company.

      Mr. Lindley M. Garrison, for the Cape May, Delaware Bay. and Sewell’s Point Railroad Company.
   Reed, V. C.

The Cape May, Delaware Bay and Sewell’s Point Railroad Company is a corporation formed by the consolidation of three railroads. Since January 19th, 1893, it has been operated as a trolley road, from Cape May Point to Sewell’s Point, running through the city of Cape May. Upon the road is a mortgage securing bonds to the amount of $150,000. The Cape May, Delaware Bay and Sewell’s Point Railroad Company, on March 30th, 1896, leased the railroad to the Cape May Transportation Company, for the term of five years, from February 1st, 1896, the latter company agreeing to pay all taxes, charges, assessments for the franchise or property, whether national, state, county or municipal, and to pay each January and July 25th, the sum of $3,750 to the Camden Trust and Safe Deposit Company, to be applied in payment of coupons, upon bonds secured by the $150,000 mortgage, and to pay $100 to maintain the corporate existence of the lessor. The Cape May Transportation Company has a capital of $1,000, or ten shares of $100 each, of which J. Henry Edmunds held eight, Mr. Stephens, its secretary, one, and Mr. Thompson, its president, the other one. The company is obviously managed and controlled by Mr. Edmunds. The bill is filed by the complainant, as a creditor of these companies, to have a receiver appointed to take charge of them as insolvent corporations. The complainant claims that there are taxes due, as well as license fees, for the running of their cars through the city of Cape May.

Mr. Nixon, as the holder of stock and bonds of the Cape -May, Delaware Bay and Sewell’s Point Railroad Company, has, upon petition, been made a party complainant. He owns one hundred and thirteen shares of stock, and eight bonds of the -value of $500 each. The allegations of insolvency are that the company owes the city of Cape May the franchise tax for three years, amounting to $1,554.29; that it owes local taxes to Cape May City; that the coupons of the bonds of the above company are unpaid for 1897, 1899, and only partly paid for 1898. The franchise tax due to the State of New Jersey, I think, has been paid since the filing of the bill.

One thousand eight hundred and seventy-five dollars have also been paid, which it is claimed is one-half year’s rent, as such rental was reduced by an arrangement with the lessors for the year 1897.

The position of affairs, then, is this: The Cape May, Delaware Bay and Sewell’s Point Railroad Company has leased its property by an agreement which, so far as appears, is legal, for a term ending in 1901. By the terms of the lease it was to receive a rental sufficient to pay all its obligations, by way of taxes, assessments and the interest upon the issue of $150,000 of bonds. Eor the payment of this rental, it holds the obligation of the Cape May Transportation Company, and of J. Henry Edmunds, who is surety for the performance by the Cape May Transportation Company of its covenants contained in the lease.

There is nothing to show that this asset was not good, and it appears that if good the former company is not insolvent. But concede that a part of the rental has been legally remitted and that the amount of rental presently received is insufficient to pay the coupons in full, .how does the matter stand as to the Cape May, Delaware Bay and Sewell’s Point Railroad Company ? I do not see how a stockholder, as such, can be benefited by the appointment of a receiver. Such an officer would take the profit of the company subject to a mortgage of $150,000, as a first lien. -Nor do I see how the bondholder is to be benefited by such an appointment so long as there is no mismanagement by the directors. The mortgage to secure the bonds is, as I have already remarked, a first lien upon the property, and a sale by the receiver would be, as a sale under a foreclosure of the mortgage would not be, subject to the outstanding lien. All the receiver could do would be to collect the rents from the Cape May Transportation Company. Besides, the Cape May, Delaware Bay and Sewell’s Point Railroad Company claims, and, it appears to me justly, that it has not been brought in properly to answer this imle, and the appearance of counsel for it was a special appearance, made to object to its being called upon to answer the order. This, in itself, would seem to afford an obstacle in the way of making an appointment.

Secondly, in respect to the Cape May Transportation Company, it is said that the only assets it has is the term which it holds from the former company, and it is obvious that the income from the leased property is not sufficient to pay the rental. From the refusal of the treasurer of the company when before the master to testify as to its receipts, it is probable that this is so. But the query is suggested, can one of these roads •be declared insolvent and put in the charge of a receiver while •the other is permitted to continue its business as a solvent corporation? The only feature of the case that would justify an •application for .the appointment of a receiver for two distinct •corporations is the fact that they are tied together by a lease ■and that the creditors are so concerned in the fact that one is lessor and the other is lessee, as to make the application in a single bill proper, as a matter of correct pleading.

Again, the company has no assets but the remnant of the term, and if it be true that the road cannot be run at a profit, there is no value in the lease, and there are no assets to be administered or to pay the expense of litigation. The indemnity .of Mr. Edmunds can be utilized certainly, as well without as with the appointment of a receiver. Taking into consideration the interest of the creditors, I do not think that a receiver should be appointed'on this order. But as the testimony taken before the master was incomplete, I will reserve the right to the complainant to bring in the defendants by subpoena, and have the suit proceed in an orderly manner to final hearing.