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    Salina O’Donnell et al. v. Catherine McCann et al.
    [Decided March 10th, 1910.]
    1. It any circumstance occurs after bill filed which does not abate the suit and occasions an alteration in the interest of any party or renders it necessary that new parties should be brought before the court, the proper method of proceeding is by supplemental bill; and such a bill may be filed by a defendant, if his interests so require.
    2. The recovery of a legacy by one entitled thereto will not defeat the claim of a creditor even though he has been barred of his action against the executor, for, if he has been so barred, he may recover his debt out of the legacy and from the legatee.
    3. Legatees succeed to the estate of the testator as beneficiaries and objects of his bounty and have no rights or equities whatever as against creditors.
    4. The rule to limit creditors and. the decree barring creditors, provided for by the Orphans Court act, operate only to protect the executor from molestation by belated claims of creditors, to the end that the estate of a decedent may be speedily settled; and the provisions mentioned do not operate as a statute of limitation against the claims of creditors.
    5. The prohibition contained in section 70 of the Orphans Court act which prevents an executor or administrator aum testamento annesco, who has neglected to enter a rule to limit creditors and to proceed thereon according to law, that is, take a decree to bar creditors and settle the estate, from pleading want of assets in abatement in a suit for a legacy, unless a suit brought within a year from the grant of probate or ad ministra lion bo pending on a claim against the estate, will not be permitted to work a recovery of a legacy and a debt out of such personal representative beyond assets available for their payment.

      6. Although an executor or administrator omn testamento amnexo is unable to plead want of assets in abatement in a suit for the recovery of • a legacy when he has not taken a rule to limit creditors and proceeded thereon according to law, such neglect is not visited with the penalty of payment of the legacy and of the debt too, when there are not sufficient assets of the estate to pay and discharge both.
    7. This court will not restrain the prosecution of an action at law where the defence can as well be made in the court in which the action is pending as in a court of equity.
    8. By refraining from exercising his right of retainer an executor who is an alleged creditor of his decedent’s estate does not thereby mislead a legatee in any way whereby an equitable estoppel is raised against such creditor in his lifetime or his personal representative after his decease.
    9. Defendants to a supplemental bill can be brought into court and compelled to answer by subpoena ad respondendum only, and such a bill which contains no prayer for process of subpoena is defective, but may be amended in that regard.
    10. Chancery will not distribute to legatees a fund in the hands of an executor or administrator, in the face of an adverse claim against the estate which would consume the fund, without affording the claimant an opportunity of being heard with respect to the disposition of the fund.
    11. Quaere. Does not a suit in chancery for the recovery of a legacy draw to it the claims of creditors of the deceased so that the court may administer the estate and make final disposition of the assets; and will not the court, to that end, enjoin a suit at law brought by a creditor against the personal representative of a decedent after bill filed in equity ?
    On application for preliminary injunction.
    The bill of complaint shows that Catherine Fitzpatrick departed this life leaving a last will and testament dated July 1st, 1903, which was duly admitted to probate, and wherein she did, among other things, leave to the complainants, Salina Roone (now Mrs. O’Donnell) and Sadie Rhone (now Mrs. Hinton), $500 to be divided between them share and share alike; that the executor named in the will renounced and letters of administration with the will annexed were issued by the surrogate of Middlesex county to Ronald McCann, who duly qualified, and, on August 14th, 1906, filed an inventory and appraisement of the goods and chattels of the deceased, showing personal estate in his hands amounting to $1,440.60; that on Rovember 30th, 1906, McCann, administrator cum testamento annexo, filed in the office of the surrogate of Middlesex county his final account, wherein he charged that he had paid to Catherine McCann, his wife, a bill for board alleged to be due from the deceased to her, amounting to $555.94, leaving a balance in his hands for distribution amounting to $73.88; that the complainants filed exceptions in the orphans court of Middlesex to the allowance of the $555.94, so paid by the administrator to his wife for the alleged bill for decedent’s board, and subsequently the orphans court sustained the exceptions and directed the surrogate of Middlesex to restate the account, deducting from the allowances the item for board, and further, that the administrator pay over to the complainants the legacy of $500, with interest; that the administrator appealed to the prerogative court from the order sustaining the exceptions, and the prerogative court affirmed the order of the orphans court, with costs; that subsequently Ronald McCann, the administrator, departed this life, and that letters of administration were duly granted upon his estate to John McCann, his son, by the surrogate of Middlesex, who (John McCann) entered upon the discharge of his duties; that since the death of Ronald McCann, administrator, no letters of administration cum testamento annexo de bonis non have been issued upon the estate of Catherine Fitzpatrick, deceased, to any person; that neither Ronald McCann, administrator cum testamento annexo, in his lifetime, nor John McCann, his administrator, since his decease, have paid over to the complainants their legacy.; that upon his appointment as administrator cum testamento annexo of Catherine Fitzpatrick, deceased, Ronald McCann executed a bond to the ordinary, with William F. Harding and Abraham Jelin, as sureties, conditioned, among other things, that Ronald McCann, administrator, should make a just and true account of his administration, and in all respects faithfully execute the trust imposed upon him under the will of the deceased; that being unable to collect their legacy under the will of Catherine Fitzpatrick, deceased, and being desirous of enforcing and ascertaining the liability of the sureties on the above-mentioned bond, the complainants subsequently applied to the ordinary for leave to bring suit thereon, and, subsequently, an order was made in the prerogative court giving leave to bring such suit at law or in equity as they should be advised, and in the name of the ordinary, if necessary. The defendants are John McCann, administrator of Ronald McCann, deceased, Catherine McCann, William E. Harding and Abraham Jelin; and it is prayed, among other things, that John McCann, administrator, and Catherine McCann, may be decreed to pay to the complainants their legacies, and that William E. Harding and Abraham Jelin may have their liability on the bond of Ronald McCann, administrator cum testamento annexo determined and ascertained, and that they also may be decreed to pay to the complainants their legacy.
    On June 24th, 1909, application was made on behalf of Russell E. Watson, who had been appointed substituted administrator cum testamento annexo of Catherine Eitzpatrick, deceased, for an order admitting him as a party in this cause, and for such other and further relief as might seem meet and proper. This application was made on notice to the defendants, and, after hearing, an order was made that the substituted administrator be made a party defendant, and that he have leave to appear, plead and answer, or to file such other pleading by way of a supplemental bill, or otherwise, as he should be advised.
    On August 14th, 1909, Russell E. Watson, substituted administrator cum testamento annexo of Catherine Eitzpatrick, deceased, filed a supplemental bill, wherein he recited all of the facts and proceedings shown by the complainants’ bill; and further showed that John McCann, administrator of Ronald McCann, deceased, having received from the complainant in the supplemental bill a notice (after the presentation to him of the bill of $555.94 for board) that the bill was disputed, he, John McCann, administrator, brought suit against him, the complainant in supplemental bill, as substituted administrator, in the Middlesex circuit court for the recovery of such bill; that by force of the provisions of the Orphans Court act, Ronald McCann, administrator cum testamento annexo of Catherine Eitzpatrick, deceased, having failed and neglected for six months to obtain an order to limit creditors and to proceed therein according to law, and having failed to bring suit against her estate within one year from the grant of probate, the suit in the Middlesex circuit court constitutes no defence to this suit now pending against the complainant in the supplemental bill (one of the defendants herein) for the payment of the legacy due to the complainants, and that the estate of Catherine .Fitzpatrick, deceased, remains liable for those legacies, notwithstanding the suit at law, and that the complainant in the supplemental bill is liable for the payment of those legacies on the collection of the assets of tire estate of the decedent. The defendants to the supplemental bill are Salina O’Donnell and Sadie Rhone Hinton, the complainants in the original bill, and Catherine McCann and John McCann, administrator of Ronald McCann, deceased, and William F. Harding and Abraham Jelin, and the prayer, among other things, is, that they answer, and that Catherine McCann and John McCann, administrator, may be decreed to account for and pay over to the complainant in the supplemental bill the assets of the estate of Catherine Fitzpatrick, deceased, or so much thereof as remain in their hands, with interest and costs, and that William F. Harding and Abraham Jelin may be decreed to have their liability as bondsmen determined and ascertained, and that they pay over to the complainant the sum found to be due from them, and also that John McCann, administrator, maj1' be permanently enjoined from prosecuting against the complainant his suit in the Middlesex circuit court, and that all proceedings on the alleged claim of the estate of Ronald McCann against the estate of Catherine Fitzpatrick may be perpetually enjoined, and that John Mc-Cann, administrator, may be restrained from assigning or disposing of the claim to the end that the complainant in the supplemental bill may proceed with the collection of the balance of $629.82 belonging to the estate of Catherine Fitzpatrick, deceased, as determined by the restated account of Ronald McCann, former administrator. There is no prayer for process of subpoena in the supplemental bill.
    Upon the filing of the supplemental bill, an order was made upon John McCann, administrator, and Catherine McCann and William F. Harding and Abraham Jelin, defendants, and Salina O’Donnell and Sadie Moone Hinton, complainants in the original bill, to show cause why an injunction should not issue pursuant to the prayer of the supplemental bill. The order contained an ad interim restraint.

      Messrs. Woodbridge & March, for the complainants.

      Mr. George S. Silzer and Mr. John.A. Goan, for the defendants.
   Walker, V. C.

Upon the above state of facts this court is asked to enjoin the suit of John McCann, administrator of Eonald McCann, deceased, against Bussell E. Watson, substituted administrator cum testamento annexo of Catherine Fitzpatrick, deceased, brought to collect the alleged board bill of $555.94. The defendants to the supplemental bill (save those who are complainants in the. original bill) meet the issue by a motion in limine to strike the supplemental bill from the files — first and fifth, because it is filed by a defendant; second, because it shows a want of equity; third, because it does not pray for process of subpoena against the defendant; fourth, because it makes a new and different case from that made bjr the original bill; sixth, because the defendant filing the supplemental bill as to the matters therein contained has an adequate remedy at law.

The objection that a defendant may not file a supplemental bill is not tenable. If any circumstance occurs after the bill is filed which does not abate the suit, and occasions an alteration in the interest of any partjq or renders it necessary that new parties should be brought before the court, the proper method of proceeding is by supplemental bill (Dan. Ch. Pl. & Pr. *1515); and such a bill may be filed by a defendant, as was done in Zinc Co. v, Franklinite Co., 13 N. J. Eq. (2 Beas.) 322, 325. See, also, Dan. Ch. Pl. & Pr. *1536, note.

The next objection is that the supplemental bill shows a want of equitjc The motion is to dismiss the bill for that reason. And this would be tantamount to a demurrer (Bigelow v. Old Dominion Copper Mining and Smelting Co., 74 N. J. Eq. (4 Buch.) 457), if the objection were made under rule 213 of this court. However, the sufficiency of the supplemental bill will have to be considered on the complainants’ motion for an injunction, and this involves the construction and application of section 76 of the Orphans Court act (P. L. 1898 p. 741), which reads as follows:

“In any citation to account, or suit for any legacy or distributive share, it shall be no defence that there are disputed claims outstanding or in suit against the estate, if the executor or administrator shall have neglected for six months to obtain an order to limit creditors, and to proceed thereon according to law, unless a suit brought within a year from the grant of probate or administration be pending on such claim.”

In this case it is conceded that Ronald McCann, as administrator of the estate of Catherine Fitzpatrick, deceased, took no order to limit creditors, and that no suit for the recovery of the alleged board bill was brought within a year from the grant of probate.

The complainant in the supplemental bill avers that lie is liable for the payment to the complainants of their legacies by reason of the settled account in the orphans court of Ronald Mc-Cann, whom he succeeded as substituted-administrator,'and the complainants in the original bill contend that by force of section 76 of the Orphans Court act they are entitled to recover their legacies in this suit and require payment from the complainant in the supplemental bill, irrespective of the claim involved in the action at law against the substituted administrator cum testamento annexo cU bonis non of Catherine Fitzpatrick, deceased, and that upon obtaining a decree in this court the substituted administrator would be obliged to pay the legacies to the complainants, and that this suit would not he a bar to recovery by the plaintiff in the action at law against the administrator, who (the administrator), if judgment at law passed against him, would thus he made liable for both the legacies and the debt. To this view I cannot accede.

The seventy-sixth section of the Orphans Court act was enacted in 1849 (Gen. Stat. p.'2869 § 65), and appears not to have been construed by any of our courts. It can have no other effect, it seems to me, than to permit the legatee to prosecute his suit to judgment or decree, which will not he enforced pending the ultimate settlement of the estate, as will hereafter appear.

The adjudications in this state make it clear that the recovery of a legacy by one entitled thereto will not defeat the claim of a creditor, even though he has been barred of his action against the executor, for, if he has been so barred, he may recover his debt out of the legacy and from the legatee. Coddington v. Bispham, 36 N. J. Eq. (9 Stew.) 224; affirmed, 36 N. J. Eq. (9 Stew.) 574. In this case the court of errors and appeals held:

“Whenever a bill is filed in equity against executors, either by a creditor or by residuary or other legatees, touching the administration of the estate, the suit is for the benefit of all persons interested as creditors and legatees, and the court may assume the general administration of the estate and make a final disposition of the assets.

“In the administration of estates of decedents in the court of chancery, the assets will be applied as they would be applied in the joróbate court. Creditors will be allowed priority over legatees, who will take nothing until the debts are paid.”

That the law favors creditors over legatees is of course clearly settled. In fact legatees succeed to the estate of the testator as mere beneficiaries or objects of his bounty, and have no rights or equities whatever as against creditors.

Chancellor McGill, as ordinary, in Ford v. Westervelt, 55 N. J. Eq. (10 Dick.) 485, held:

“Personal property is liable, in the hands of executors, for the payment of debts before the satisfaction of any description of legacy. Sjoecific legacies must yield to this payment. Lands will not be ordered to be sold to pay debts, when it appears that sufficient personalty came to the hands of the executors to enable them to make such payment.”

The extent to which our law favors creditors over devisees and legatees is shown in Stone v. Todd, 49 N. J. Law (20 Vr.) 274, in'which the supreme court held that an action at law might be brought against heirs and devisees, although the claim had not been presented to the administrator and there was sufficient personal property to pay the debts.

In Dodson v. Sevars, 52 N. J. Eq. (7 Dick.) 611, it was held:

“A creditor of a decedent whose claim was not in due time presented to the executors, and who is bound by a decree of the orphans court, in pursuance of the statute (Rev. ¶. 764 § 62), may nevertheless maintain an action against the executors for payment of a. ratable portion, of his debt from any legacy or legacies which shall not have been paid over by the executors or have been attached in their hands.

“Such a creditor, may go into equity for discovery of such assets in the hands of the executors, and, when there, will be permitted to establish the validity of his claim and have it satisfied so far as the assets discovered may lawfully be resorted to.”

It wall be noted that it was held in Dodson v. Sevars that a creditor might maintain an action against executors for the payment of his debt from any legacy not paid over by the executor or had been attached in his hands. Attached means reached by process. Woodward v. Woodward, 9 N. J. Law (4 Halst.) 115, and note; Osborne v. Edwards, 11 N. J. Eq. (3 Stock.) 73, 78; Shinn v. Zimmerman, 23 N. J. Law (3 Zab.) 150, 151.

The rule to limit creditors and the decree barring creditors provided for by the Orphans Court act operate only to protect the executor from molestation by belated claims to creditors, to the end that the estate of a decedent may be speedily settled, and the provisions mentioned do not operate as a statute of limitation against the claims of creditors.

There is nothing in the Orphans Court act which abrogates the general statute of limitation. In fact by section 65 of the former act the running of the statute is suspended for six months upon the death of any person obligated for a debt, and amounts to an extension of the statute of limitation.

Light is thrown, I think, upon the meaning of section 76 of the Orphans Court act by the provisions of the act concerning legacies {Gen. Stat. p. 1938), a statute which is certainly in pari materia. By the first section of that act it is provided that a legatee may maintain an action against the executor or administrator cum testamento annexo for the recovery of a legacy after it becomes due, and that if no time is fixed in the will for the payment, the executor or administrator shall have one year after probate in which to pay. But in section 3 of the act it is provided that upon a plea of want of assets to pay the debts of the testator and all the legacies, the court shall appoint auditors to examine the account, who shall report how much assets will remain- after the payment of debts and what part of the remainder is the proportion which ought to go toward paying the plaintiff’s legacy, and the execution issued on the judgment shall issue only for the proportion of the legacy ascertained to be payable to the plaintiff, and such judgment shall remain a security for the payment of the residue of such legacy out of assets which may thereafter come to the hands of the executor or administrator. Section 5 of the act provides that no suit shall be maintained for the recovery of any legacy until demand made and a tender of a bond in double the value of the legacy, with condition that if the whole or any part thereof shall at any time appear to be wanting to discharge any debt which the executor or administrator may not have other assets to pay, then the legatee will return the legacy, or such part thereof as may be necessary, for the payment of debts. Section 7 provides that nothing in the act contained shall be construed to enforce the payment of any legacy to the prejudice of creditors.

The court of errors and appeals, in Davison v. Rake, 45 N. J. Eq. (18 Stew.) 767, said (at ¶. 770) that the general rule, where no time for payment is fixed by' a will, a pecuniary legacy is payable in one year after the testator’s death, was adopted from the ecclesiastical courts, which allowed the executor one year to get in the estate and pay legacies, and was designed for the advantage of the executor in the settlement of the estate.

As the law stood prior to the passage in 1849 of what is now the seventy-sixth section of the Orphans Court act, upon suit for a legacy brought under the act concerning legacies, the executor or administrator cum testamento annexo could plead a want of assets to pay the debts of the testator and all the legacies, either beforé or after one year from probate, whereupon the suit abated pending the appointment of auditors and their report to the court. Under this proceeding, which may still be had in cases not controlled by section 76 of the Orphans Court act, the judgment is for the proportion of the legacy for which funds were found available and as security for the residue out of assets which may thereafter come to the hands of such executor or administrator. This statute is still in force, subject to the modification made by the seventy-sixth section of the Orphans Court act, which operates to prevent an executor or administrator cum testamento annexo who has neglected to enter a rule to limit creditors and to proceed thereon according to law, that is, to take a decree to bar creditors and settle the estate, from pleading want of assets in abatement in a suit for a legacy, unless suit brought within one year from the grant of probate or administration be pending on the claim of a creditor. In my judgment the prohibition contained in section 76 o£ the Orphans Court act is leveled against a plea in abatement in a suit for a legacy, but leaves ultimate rights unaffected. Chancery always protected all parties by its decree. See Wilson v. Fisher, 5 N. J. Eq. (1 Halst.) 493, 498. But even if the executor or administrator is unable to plead want oE assets in abatement, it does not follow that as a penalty for neglect to enter a rule to bar creditors and to proceed thereon, the executor or administrator cum testamento annexo shall be compelled to pay and discharge the legacy in full upon entry of judgment or decree therefor, and pay a debt of the testator also upon recovery of such debt, when there is not in the estate sufficient assets to pay and discharge both the legacy and the debt.

The law does not favor a forfeiture and equity abhors one, and if this court, upon the facts of this case, and under section 76 of the Orphans Court act, was required to grant the complainants a decree for their legacies and direct that they be paid by the substituted administrator, upon the collection by him from Catherine McCann of the money illegally paid her by Ronald McCann, late administrator cum testamento annexo of Catherine Fitzpatrick, deceased, and then permit the plaintiff in the suit at law, if he should be successful and obtain a judgment, also to collect the debt from the substituted administrator,' when in fact he would not have sufficient assets in hand to pay the judgment, it would do the rankest kind of injustice. That such an outcome cannot be the result of these two suits must be clearly apparent upon the authority of Coddington v. Bispham; Ford v. Westervelt; Stone v. Todd, and Dodson v. Sevars, ubi supra, to say nothing of sections 72, 73 and 71 of the Orphans Court act, which appear to give relief to the creditors of a decedent’s estate who may be in such a situation as the one before the court.

How tlie suit for the legacies in this particular case is in a court of conscience, and the defendant who is liable for the payment of these legacies upon the recovery of assets, namely, the substituted administrator under the will of Catherine Fitzpatrick, deceased, has filed an answer which contains an admission of the material facts pleaded in the bill of complaint, and avers, among other things, that Catherine McCann and John McCann, administrator of Ronald McCann, deceased, or one of them, now have in hand the sum of $680.12, the balance remaining in the estate of Catherine Fitzpatrick, deceased, besides interest thereon to bo computed according to law; and that Catherine McCann and John McCann, administrator, and William F. Harding and Abraham Jelin, sureties on the bond of Ronald McCann, deceased, are liable to pay over that sum of money to the defendant, as substituted administrator, to be administered and distributed by him according to law and the provisions of Catherine Fitzpatrick’s will. Therefore, there is nothing in the law, or, in the pleadings, or in the facts of this case which will operate to abate or impede the suit of the complainants to recover their legacies. The enforcement of the decree therefor, when, and if entered, is another question, and, as above remarked, such decree would not be enforced to work a penalty or forfeiture out of such administrator.

On the record presented in this case the complainants in the original and supplemental bills ask for an injunction against the suit of John McCann, administrator of Ronald McCann, deceased, which suit was instituted for the collection of the alleged bill for board due from Catherine Fitzpatrick, deceased, to Ronald McCann, upon the ground that Ronald McCann, in his lifetime, made no claim for it, kit paid it to his wife, acknowledging that she was the creditor of Catherine Fitzpatrick, and thus in effect declaring that ho had no claim against her estate, and that as he himself lived for some time after the prerogative court adjudged that Mrs. McCann had no claim to this money, and after his account in the orphans court was restated, showing a balance in his hands belonging to the estate of Catherine Fitzpatrick, deceased, amounting to $680.12, that his administrator is estopped from siring for the bill, because-the negligence of Bonald McCann in not bringing suit amounts to constructive fraud, which will work an estoppel, and the claim is made that the court will enjoin a suit for the same reason that it would restrain a defence which would be a bar to a suit, citing cases in this and other states. But the court will not restrain the prosecution of an action at law where the defence to the action can as well be made in the court in which the action is pending as in the equity court. Screw M. & R. CGo. v. Mettler, 26 N. J. Eq. (11 C. E. Gr.) 264. The conduct of Bonald McCann as pertinent to the question of the bona fides of his claim is a defence which is available at law; and if not pleadable in form, it is a defence arguendo, and I can readily see that the facts adverted to can be leveled against the claim for recovery with more or less effect. This would be a matter for counsel to argue and the court might be asked Lo direct the attention of the jury to it. I repeat: It is entirely available as defensive matter in the suit at law. However, I am not sure that the complainants may not have an injunction against the suit at law brought by Bonald McCann, administrator, upon the ground that this suit in this court for the payment of the legacies draws to it the claims of creditors so that the court may administer the estate of Catherine Fitzpatrick, deceased, and make a final disposition of the assets. Coddington v. Bispham, ubi supra; First National Bank of Freehold v. Thompson, 61 N. J. Eq. (16 Dick.) 188, 205.

As to estoppel: I fail to see any applicability of the doctrine. The essential elements which must unite in order to create an equitable estoppel by conduct are stated with perspicuity and accuracy in Central Railroad Co. v. MacCartney, 68 N. J. Law (39 Vr.) 165, 175. The fifth element is’ thus described (at p. 176) :

“That the latter party, in good faith, relied upon the representations or conduct of the other party and thereby was led into such a course of conduct that he will now be substantially prejudiced if the other party be permitted to repudiate his former action or representation.”

And the opinion proceeds: “In short, an equitable estoppel prevents one from rectifying his own grossly negligent mistake at the expense of another who has, without negligence, been misled thereby.”

Yow the complainants in the original bill, the legatees, were not misled by conduct on the part of Eonald McCann with reference to his claim for the board bill against the estate of Catherine Fitzpatrick, deceased. That claim must stand or fall upon its intrinsic merits. It may well be said that there was much in the conduct of McCann which casts suspicion upon the genuineness of the claim now asserted and put in suit by his administrator, but the strength of the defence against that claim is measured by such weakness as may inhere in it. The legatees have not changed their position with reference to anything that McCann did or said. They, as already remarked, are the mere recipients of the bounty of Catherine Fitzpatrick, and they will receive their legacies in full if the McCann suit fails, but if it succeeds, they will probably receive nothing on account of their legacies as the small balance of $73.88 will probably be absorbed in the costs of administration subsequent to the restatement of the account of Eonald McCann, the former administrator cum testamento annexo.

The complainants urge that if McCann had a claim he should have asserted it by right of retainer. The way for an executor to pay himself a debt out of the estate of his decedent, is to retain it and report to the orphans court with the other claims against the estate, and such court has jurisdiction to pass upon the legality of his action in retaining for his debt. Kinnan v. Wight, 39 N. J. Eq. (12 Stew.) 501, 506. The fact that he did not retain, but paid the money to his wife, and after the adjudication by the prerogative court that his wife had no claim to it, did not thereafter retain and report the retainer to the orphans court, is evidence of more or less weight against the lona fides and legality of the claim, but is not conclusive against it.

The next contention on behalf of John McCann, administrator, is, that the supplemental bill does not pray for process of subpoena against him. It should so pray, for without the defendants being brought in by subpoena to answer the supplemental bill, answer cannot be required. Under the practice which formerly obtained with reference to a cross-bill, answer from defendants to such a bill was required under a subpoena; but now by the practice promulgated by rule 206, a defendant need not file a cross-bill as formerly, but may set up in his answer matter which would have been the proper subject of a cross-bill, and where such a pleading is exhibited against a co-defendant, he is required to serve a copy of such pleading on such defendant in five days from the date of filing. When exhibited against the complainant he answers by special replication, and when against a co-defendant, he answers by a pleading in the form of an answer to be. filed within thirty days from the time of the serving of the copy of the answer to which he is called upon to respond. Fo such practice with reference to supplemental bills which, by the way, are rarely exhibited by defendants, has ever been prescribed either by statute or rule of court. Therefore, the original practice of bringing in the defendants to a supplemental bill still exists. However, this defect may be supplied by amendment. The defendant is not here with a demurrer, but with a motion to take the supplemental bill from the files. Dan. Ch. Pl. & Pr. *1536, note; Stockton v. American Tobacco Co., 53 N. J. Eq. (8 Dick.) 400.

The next contention, on behalf of the defendants, is, that the supplemental bill makes a new and different case from the original bill. This it seems to me is a misconception. The rule is that after suit instituted anjr circumstance occurring which without abating the suit occasions an alteration in the interest of anjr of the parties or renders it necessary that new parties should be brought before the court, the proper method of doing it is by supplemental bill. Dan. Ch. PI. & Pr. *1515 and note; Williams v. Winans, 20 N. J. Eq. (5 C. E. Gr.) 392. This is a suit for legacies. Subsequent to the filing of the bill a party admitted as a defendant in the capacity of' an administrator cum testamento annexo cle bonis non of a testatrix from whose estate the legacies are sought to be recovered, filed a supplemental bill charging, among other things, that a third person, claiming to be a creditor of the estate, has sued him at law for a debt alleged to be due from decedent, and that there are not assets sufficient to satisfy both the legacies and the debt. These facts do not abate the suit for the legacies, but occasion an alteration in the interests of the complainants to the extent of defeating recovery if the plaintiff ■in the law suit should prevail. In this posture of the affair, the supplemental bill praying for an injunction against the suit at jaw upon equitable grounds is entirely germane and the proper subject of a supplemental bill. Whether the equities are sufficient to sustain that bill is another question.

This view disposes of the next contention, which is that a supplemental bill is not a proper remedy for the defendant who filed it.

The last contention, namely, that as to the matters set forth in the supplemental bill, the defendant filing it has an adequate remedy at law, has been considered, and was disposed of against the defendants’ claim, in the discussion of the question of alleged Want of equity.

In my judgment, the provision of section 76 of the Orphans Court act that it shall be no defence to a suit for a legacy that there are disputed claims outstanding or in suit against the estate if the executor Who shall have neglected for six months to obtain an order to limit creditors and to proceed thereon applies only to a plea in abatement of want of assets in a suit to recover the legacy, but does not extend to work an unjust or inequitable enforcement of a judgment of a court of law or decree in chancery.

When sued for a legacy, if there are claims against the estate of the decedent, disputed or otherwise, in suit or otherwise, and the estate appears to be insolvent, * * * the executor or administrator cum testamento amnexo may protect himself by an application to the orphans court to have the estate decreed to be insolvent and for an order for the sale of lands to pay debts. Orphans Court act, P. L. 1898 p. “715 § 100 et seq. On a judgment against an executor or administrator of an insolvent estate, execution will be stayed, and the amount of the judgment is made the sum on which the creditor receives a dividend. Ibid. § 106.

The estate in question in this cause appears to be solvent, but if the claim outstanding against it shall be ascertained to be valid its payment will consume almost the entire balance of assets, but if the claim shall be adjudged to be invalid, the same fund will satisfy the legacies sued for in this cause. In this posture of the affair the suit fox legacies will be permitted to proceed, and if decree be entered for the complainants, it will be stayed pending the disposition of the action at law for the debt. If judgment be recovered, the debt will, of course, be permitted to be paid in exclusion of the legacies. To ask this court to distribute this fund to these legatees in the face of an adverse claim against the estate which would consume the fund, is to ask the chancellor to do what no court should do without the claimant being afforded an opportunity of being heard with respect to the disposition of the fund. Rorback v. Dorsheimer, 25 N. J. Eq. (10 C. E. Gr.) 516 (at p. 522). The estate in this cause being solvent, an execution on a judgment against the administrator would be enforcible. Von Arx v. Wample, 45 N. J. Law (16 Vr.) 87, 89.

In my opinion, the injunction prayed for against the suit at law on the ground of fraud and estoppel, should be denied, and this suit should be permitted to proceed to final hearing. Whether the complainant is entitled to restrain the suit at law and require the defendant John McCann, administrator, to litigate his claim in this court in this cause is a question which was mooted on the hearing of the order to show cause, but not seriously argued. I think the complainants should have the right to raise this question, and the ad interim restraint will be continued for ten days to afford them an opportunity to give the defendant McCann, administrator, notice of an application for an injunction on the ground last indicated, Unless within that time the complainants give such notice, the defendant McCann may apply ex parte'to have the stay dissolved and the order to show cause discharged. Unless within ten days, also, the complainant in the supplemental bill shall issue a subpoena ad respondendum, the supplemental bill will be dismissed on motion and without notice. The complainants have already been heard on this question.

No costs will be allowed on this application, but all costs will abide the event of the suit.


source: Caselaw Access Project

author: Walker, V. C.

license: Public Domain

text:
    Mary Fraser v. James K. Fraser.
    [Decided March 22d, 1910.]
    1. The provision in our Divorce act (P. L. 1907 p. 47Jj % 10) that all suits for divorce shall be commenced by petition does not operate to prevent the petitioner from alleging in such pleading the existence of a fraudulent divorce obtained in another jurisdiction and praying for the avoidance of the alleged fraudulent decree as an impediment to the granting of the relief sought in the suit for divorce in this court.
    2. A petitioner for divorce in this court may in that suit remove a fraudulent divorce out of the way of, and preliminary to, the granting of the main relief in the suit in this court, and will not be compelled to file an original bill for that purpose; one suit instead of two is all that our practice and statute require.
    On. motion to strike out amended petition for divorce.

      Mr. Scott Scammell, for the motion.

      Mr. Ulmer 17. Demarest, contra.

   Walker, V. C.

The original petition was filed for a divorce from bed and board and for alimony for the cause of desertion. The defendant, by way of plea in bar to the relief, sought, set up that prior to the commencement of the suit he obtained a decree of divorce from the petitioner in the State of Colorado. The petitioner applied for and obtained leave to amend, and then filed an amended petition in which it is averred that the Colorado court had no jurisdiction of her husband’s cause for divorce, and that, therefore, the decree of that court divorcing the parties is a nullity.

The objection presented under this motion is that the foreign decree cannot be avoided in litigation commenced by petition, but must be attacked by an original bill. If the present proceedings were commenced by bill instead of petition the Colorado divorce could be assailed in the same bill, as an impediment to the relief sought in chief. Of this there can be no doubt. Doughty v. Doughty, 27 N. J. Eq. (12 C. E. Gr.) 315; affirmed, 28 N. J. Eq. (1 Stew.) 581; Fairchild v. Fairchild, 53 N. J. Eq. (8 Dick.) 678; Magowan v. Magowan, 57 N. J. Eq. (12 Dick.) 322.

It is conceded that if - our Divorce act of 1902 were still in force, under which a suit for divorce could be commenced by'bill, and that had such a bill been filed in this cause it could have prayed, incidentally, for the nullification of the Colorado divorce as incident to the main relief sought, and that an original bill for the annulment of! the Colorado divorce alone would not have had to be filed.

Where no other method of invoking the jurisdiction of this court is provided for, the cause must be commenced by bill. Salem v. Board of Health, 76 N. J. Eq. (6 Buch.) 264. A bill in chancery, in its broadest sense, is a petition, and a suit in this court, when brought by a citizen, is commenced by a petition called a “bill,” and when by the attorney-general by petition, called an “information.” Dan. Ch. Pl. & Pr. p. 1 et seq. Many statutes point out the particular mode by which relief thereunder is to be sought from the court, and when so pointed out that method must be followed. Dan. Gh. P;. & Pr. p. 1 el seq.

Now our present Divorce act (P. L. 1907 p. 474 § 9) provides that the like process and procedure shall be had and pursued in all causes as are usually had and pursued in other causes in the court of chancery, except, so far as other process and procedure is prescribed by or under the authority of the act. The next section (10) provides that all suits in chancery for divorce or nullity of marriage under the act shall be commenced by. filing a petition which shall plainly and fully state the cause or causes of the application and the relief prayed. The only legislative intent here discoverable, in my judgment, is to establish .one method of commencing a divorce suit, namely, by petition, instead of allowring the initiation of such a cause by one of the 'two alternative methods -which obtained under the last act (P. L. 1902 p. 502) which permitted either the filing of a hill or a petition; There is in our present act no manifestation of an intent to curtail the jurisdiction of this court in these causes except as changed proceedings are pointed out. In fact this is what is expressly provided by section 9. P. L. 1902 p. 502.

In West v. Paige, 9 N. J. Eq. (1 Stock.) 203, it was held that in the absence of any established practice or rule in our own court to the contrary, we follow the English practice in all cases where such practice is not rendered inapplicable by some statutory provision,.or does not violate the spirit of our statutory regulations. How it is apparent that our established chancery practice of removing a fraudulent divorce out of the way of, and preliminary to, the granting of the main relief in a suit in this court for divorce, although that suit may now be by petition only and cannot be by bill as heretofore, is not rendered inapplicable because that suit is by petition, nor does it violate the spirit of our statutory regulation.

As already seen a bill is in reality a petition by another name, and tiie only difference between a bill and a petition is that the latter is less formal in its averments and prayers and the defendant is brought in by process called a citation, instead of by subpoena ad respondendum, and is required to answer in shorter time. The essential thing is that the defendant shall have his day in court, and if he has that he cannot complain of the method by which jurisdiction is acquired over him or of the technical form of the pleading which he has to answer. Every sovereign, as I understand it, has the right and power to prescribe the method through which its courts may obtain jurisdiction over controversies and parties.

In Yauger v. Skinner, 14 N. J. Eq. (1 McCart.) 389, 395, it was held that the fact that the frame of a bill is unusual and without a precedent does not alone constitute an objection to the relief sought, if it can be supported upon principle. The same reasoning applies to the case of a petition, where a petition may properly be filed. I hold that in this case the court has jurisdiction of the entire matter pleaded in the amended petition and of the defendant, who is required to answer it, and that the legislature has expressly provided that the cause of complaint must be exploited in a petition, and cannot be made the subject-matter of a bill, and, therefore, the petitioner is not driven to the filing of an original bill for the avoidance of the alleged fraudulent decree of divorce in order that she may have the divorce prayed for in her petition, but that, on the contrary, both matters are properly joined in the petition filed. One suit, instead of two, is all that our practice and the statute require. This view leads to the overruling of the present motion, with costs.


text:
    Harvey K. Partridge, receiver, Standard Shoe Company, v. Mechanics National Bank of Burlington.
    [Decided April 8th, 1910.]
    1. Proof of the execution of a chattel mortgage before a notary public is not a compliance with the provisions of the g'eneral act concerning chattel mortgages, requiring them to be proved as prescribed by the act respecting conveyances. P. L. 1902 p. 487 §§ 1/-0-

    2. The circumstance that the notary public was also a commissioner of deeds and an attorney-at-law does not validate such a chattel mortgage, it appearing that the person taking the proof did not act in either of those capacities, but assumed to do so in his capacity of notary.
    3. The contention that because the proof of a corporate deed may be made by an affidavit, and that under the general act respecting oaths and affidavits (P. L. 1900 p. 820) they may be taken before a notary and heard, such a mode of proving the execution of a chattel mortgage examined and declared to be non-sustainable. Gen. El. Co. v. Transit Equipment Co., 57 N. J. Eq. (12 Dick.) 460, distinguished.
    On final hearing, on pleadings and proofs.

      Messrs. Bleakly & Btockwell, for the complainant.

      Mr. Ernest Watts, for the defendant.
   Walker, V. C.

The complainant, as receiver of the Standard Shoe Company, seeks to avoid a chattel mortgage given by that company to the Mechanics bank upon several grounds, one only of which need be considered, namely, the effect of the proof of the execution of the mortgage which was made before a notary public.

The Chattel Mortgage act provides that every chattel mortgage shall be absolutely void as against the creditors of the mortgagor unless it shall be recorded in the clerk’s office of the county where the property shall be at the time of the execution of the instrument, aud that no chattel mortgage shall be recorded unless the execution thereof shall be first acknowledged or proved in the manner proscribed by the act respecting conveyances. P. L. 1902 p. 487 §§ 4, 5, 6.

The act respecting conveyances provides that certain instruments, including chattel mortgages, may be acknowledged or proved by one or more of the subscribing witnesses, before certain officers, naming them, not including notaries public, of which acknowledgment or proof the officer shall make his certificate on the instrument, and that the clerk of the court of common pleas of each county shall record such instruments, when "duly acknowledged or proved and certified as aforesaid.” P. L. 1898 p. 07& §§ 21, 22, 41-

Under our statute the deed of a corporation aggregate may either be acknowledged or proved. Hopper v. Lovejoy, 47 N. J. Eq. (2 Dick.) 573, 578. In the case sub judice the chattel mortgage' was proved by a subscribing witness. That proof, however, must have been made in accordance with the provisions of the statute, in order to entitle the instrument to be recorded and thus become constructive notice to creditors.

On behalf of the defendant, the point is made that the notary public before whom the chattel mortgage was proved was also a commissioner of deeds and an attorney-at-law, and that, as in either of these capacities, he had the power to take the proof, it is, therefore, valid, because taken before an officer who had proper capacity. But the trouble with this contention is that the individual who took the proof did not, in so doing, pretend to execute his office either of commissioner of deeds or attorney-at-law, but assumed to take the proof in his capacity as notary public, and as such he had no power in the premises. An office has been defined to be “h right to exercise a public function or employment.” 2 Bouv. Dict. (Rawle’s Revision) 539. Now, the person who took this proof as a notary public exercised the functions of that office. He did not exercise the functions either of commissioner of deeds or attorney-at-law. In what capacity he acted he has himself certified. As already seen, a chattel mortgage, unless acknowledged or proved and recorded according to law, is void as against creditors.

On behalf of the defendant, it was further contended that the proof of the execution of a corporate deed is made by an affidavit, and that as section 1 of the act respecting oaths and affidavits (P. L. 1900 p. 320) provides that all oaths, affirmations and affidavits required to be made or taken by any statute of this state, or necessary or proper to be made, taken or used in any court in this state, or for. any lawful purpose whatever, may be made and taken before any one of the officers named therein, including any notary public, that, therefore, the proof of the conveyance in question, namely, the chattel mortgage under consideration, was properly made before a notary public, and I am referred to the case of General Electric Co. v. Transit Equipment Co., 57 N. J. Eq. (12 Dick.) 460, in which Vice-Chancellor Pitney speaks of the proof of a conditional contract of sale executed by a corporation as an affidavit. It is true that in the head notes to that case the proof of the corporation’s deed is referred to as an affidavit, but in the body of the opinkm no such statement is made. The question is considered (at p. 466), and there the vice-chancellor refers to the proof of the execution of a deed by a corporation according to the common law, and holds that that manner of authentication is to all intents and purposes an acknowledgment of the deed in the sense of the act of the legislature under consideration by him in the case mentioned, which was an act relating to certain contracts for the lease or conditional sale of railroad equipment and rolling stock, and providing for the record thereof. The proof in the case considered by Vice-Chancellor Pitney was made before a master in chancery, of whose power in the premises there could be no doubt. No aspect of the question which is before me was before him. But if the question presented to the vice-chancellor in General Electric Co. v. Transit Equipment Co., supra, had been as to whether the proof of a corporate deed was an affidavit pure and simple and might be made before any officer authorized to administer oaths who may not have been empowered by the Convej’ancing act to take the acknowledgment or proof of deeds, I make no doubt but that he would have decided, as I am now deciding, that only those officers authorized by the latter act could act in the premises.

While the proof of the execution of a corporate deed may be said to be in the form of an affidavit as distinguished from an acknowledgment of such an instrument, it is, nevertheless, in my opinion, strictly speaking, not an affidavit — that is, it is not a technical affidavit. In 1 Bouv. Diet. (Rawle’s Revision) 111, an affidavit is defined to be a statement or declaration reduced to writing, and sworn or affirmed to before some officer who has authority to administer an oath or affirmation, and it is said to differ from a deposition in this, that in the latter the opposite party has an opportunity to cross-examine the witness, whereas an affidavit is always taken ex parte; and that by general practice affidavits are allowed to present evidence upon the hearing of a motion, although the motion may involve the merits of the action, but thejr are not allowable to present evidence on the trial of an issue raised by the pleadings. Further, speaking of the formal parts of an affidavit, it is said that the jurat must be signed by the officer with the addition of his official title. In the same law dictionary (volume 2, page 56), a jurat is defined to be that part of an affidavit where the officer certifies that the same was sworn before him. Thus it will be seen that an affidavit is a statement in writing declared to be true by the party who makes it and certified to have been sworn to before him by the officer who takes it. Not so the affidavit which proves the execution of a corporate conveyance, if, indeed, such proof may be properly called an affidavit, for, in the latter case, something more is required than that the officer shall certify that the facts were sworn to before him, as he is, by the statute, required to certify that such proof was made before him. That is my construction of the Conveyancing act (section 22, supra), read in connection with the universally accepted form of such proof, which certifies that the witness doth depose and make proof to the satisfaction of the officer before whom the proof is made. Gorbin's Forms 6®.

Now, the Conveyancing act, in section 22, supra, provides that a deed may be acknowledged or proved before any one of the officers in that section named, not including a notary public, and a certificate of such proof signed by such officer written upon or under or annexed to such instrument shall entitle it to be received in evidence in any court of this state, and section 41 provides that when duly acknowledged or proved and so certified, it shall, when delivered to him for that purpose, be recorded by the clerk of the court of common pleas, &e. It is apparent, therefore, that the officers named in the Conveyancing act before whom the acknowledgment or proof of deeds may be made are a special class of officers selected by the legislature and clothed with authority to certify that acknowledgment or proof was made before them of the facts essential to establish the authenticity of the instruments so acknowledged or proved. And to show that this is so, reference has only to be made to the accepted form of such proof. Take the proof in the case at bar, which is practically in the usual and approved form. Such part as is pertinent is as follows: "Be it remembered that * * * before me, a notary public of New Jersey, personally appeared Alburtus H. Jackson, who, being by me duly -sworn, doth depose and make proof to my satisfaction,” &c. This proof is subscribed by Mr. Jackson and a jurat is appended and subscribed by the notary. The proof is substantially the same as that found in Corbin's Forms, supra, although it omits a statement that execution of the mortgage was made in the presence of the deponent. However, that doubtless is to be inferred from the other facts stated in the proof. Besides, there is no question made as to the sufficiency of the proof itself in matters either of form of substance, the sole question being as to the authority of the officer to take the proof.

As the chattel mortgage here involved was not proved according to law, it therefore was not recorded according to law, as it was not entitled to be recorded, and therefore it is not constructive notice to the creditors; and, as no actual notice was shown, their rights must be held to be unaffected by the conveyance.

These views lead to the overthrow of the chattel mortgage. The complainant is entitled to a decree for its avoidance, with costs.


author: Walker, Vice-Ordinary.

text:
    In re estate of Jane Ann Gopsill, deceased.
    [Decided May 3d, 1910.]
    1. Bequests to religious corporations of a foreign state are subject to the payment of collateral inheritance tax under the law of this state, and are not exempt therefrom under the exemption contained in the amendment to the Collateral Inheritance Tax act (P. L. 1906 p 488), which is the only exemption now in force.
    2. Although there is no repealer in the said amendment, and repealer by implication is not favored, still repealer by necessary implication is recognized, and the intention of the legislature in this regard, when ascertained, governs.
    3. The exemption in the amendment (P. L. 1906 p. 488) covers the whole subject of exemptions, clearly indicating an intention on the part of the legislature to establish the latter act as the only enactment.

      On appeal from, an assessment of a collateral inheritance tax

      Mr. Charles D. Thompson, for the appellants.

      Mr. Edmund Wilson, attorney-general, for the state.
   Walker, Vice-Ordinary.

The testatrix, Jane Ann Gopsill, died January 19th, 1909, a resident of New Jersey, and her will was proved before the ordinary. Upon two legacies contained in the will, one of $7,000 to the Board of Domestic Missions of the Keformed Church in America, and the other of $32,500 to the Women’s Board of Foreign Missions of the Keformed Church in America, the register of the prerogative court imposed a tax. Both societies are corporations of the State of New York. The question presented upon this appeal is whether these two legacies are subject to collateral inheritance tax under our law, or whether they are exempt.

It is claimed -on behalf of the executors of the Gopsill will that these legacies are exempt from the payment of a collateral inheritance tax because they are bequests to religious corporations not confined in their operations and benefactions to local or state purposes, but for the general good of the people interested therein, of the United States or foreign lands, and, as such, are expressly exempted from collateral inheritance taxation under the supplement to the Collateral Inheritance Tax act, approved March 15th, 1898. P. L. 1898 p. 106. In 1906 an amendment to the Collateral Inheritance Tax act was passed, which, among other things, provided that all property passing to churches, hospitals and orphan asylums, public libraries, Bible and tract societies, and all religious, benevolent and charitable institutions and organizations shall be exempted from the payment of taxes under the act, but no other exemption of any kind shall be allowed. P. L. 1906 p. J/.82. The exemption contained in the act of 1906 is identical in substance, though different somewhat in phraseologj'', from, that contained in the act of 1894. Gen. Stat. p. 3389 § 268. That exemption was held not to extend to corporations located outside of the State of New Jersey. Alfred University v. Hancock, 69 N. J. Eq. (3 Robb.) 470. In Ms opinion (at p. 471), Vice-Ordinary Reed remarked: “Tlie overwhelming weight of authority is that where the legislature grants exemption from such a tax to corporations or organizations, it includes in the exemption only domestic corporations 'and organizations.” Further on in his opinion the learned vice-ordinary shows that in the States of New York, Massachusetts and Illinois, exemptions from collateral inheritance tax in favor of certain corporations (charitable, religious, &e.) were held to apply only to domestic corporations, and that the supreme court of the United States has sanctioned the doctrine.

By the supplement of 1898, supra, all gifts, grants, legacies, bequests and devises to any Bible or tract society or religious institution, boards of the church or organizations thereof, not confined in their operations and benefactions to local or state purposes, but for the general good of the people interested therein, shall not be taxed under the act, whether such societies, institutions or boards are organized under the laws of this state or incorporated and organized under the laws of some other state. As already remarked exemptions under the act of 1894 were held to extend only to domestic corporations. The act of 1898, it would clearly appear, was passed for the express purpose of exempting foreign corporations as well as our own.

There is no repealer in the act of 1906, and admittedly repealer by implication is not favored. Still, repealer by implication is recognized, and the intention of the legislature in this regard, when ascertained, governs. 1 South St. Const. (2d ed.) § 247. An intention to repeal certain statutory provisions may be inferred from radical changes in the existing law. Ibid. § 255. And this, as I understand it, applies to different sections of a statute as well as to a whole act. See State v. Menke, 56 Kan. 77, 80; New Jersey Steamboat Co. v. Pleasonton, 18 Wall. 478; S. C., 21 L. Ed. 769. Laws are presumed to be passed with deliberation and with full knowledge by the legislature of the existing law upon the subject. Landis v. Landis, 39 N. J. Law (10 Vr.) 274, 277.

Now, as the act of 1894 did not exempt foreign corporations from the operation of our collateral inheritance tax, as construed in Alfred University v. Hancock, supra, in 1905, and so known to the legislature when the act of 1898 expressly made that exemption (as the result, it seems to me, of the decision in Alfred University v. Hancock), it clearly appears that a restoration by the legislature of the exemption of 1894, of necessity repeals the exemption of 1898. The exemption in the act of 1906 covers that whole subject, which clearly indicates an intention to establish the latter as the only enactment.

Another rule of construction operates against the appellant, and it is this: “All exemptions from general taxation are to be considered strictly, the resolution in case of doubt being in favor of the rule which subjects all property to a just share of the public burdens.” Rosedale Cemetery Assn. v. Linden, 73 N. J. Law (44 Vr.) 422.

These views lead to the sustaining of the assessment made by the register. The appeal must be dismissed, with costs.


author: Pitney, Chancellor. Minturn, J. Garrison, J.

text:
       George Jonas Glass Company, complainant and respondent, v. The Glass Bottle Blowers’ Association of the United States and Canada et al., defendants and appellants.
    [Argued June 19th, 1908.
    Decided November 16th, 1908.]
    1. An injunction sustained, restraining defendants from using either coercion or persuasion in order to bring about breaches of the contracts of personal service existing between complainant and its employes.
    2. An injunction sustained against like conduct having for its object and purpose the termination of the relation of master and servant existing between complainant and its employes in cases where there was no binding contract of service, but a mere service at will.
    3. An injunction sustained, restraining defendants from interfering, by coercion or personal molestation and annoyance, to prevent persons, not as yet employed but willing to take employment under the com plainant, from entering such employment.

      4. An injunction sustained against “picketing” designed to molest and annoy persons employed or willing to be employed by complainant.
    5. An injunction against a “boycott” sustained.
    6. Tie “Act relative to persons combining and encouraging other persons to combine” (P. L. 1883 p. 36 j Gen. Stat. p. $344 pi- 23), does not legitimize an invasion of private rights, nor prevent the party injured from having full redress.
    On appeal from a decree of the former chancellor advised by Vice-Chancellor Bergen, whose opinion is reported in 72 N. J. Eq. (2 Buch.) 653.

      Mr. John W. Wescott, Mr. Matthew Jefferson and Mr. Louis 'll. Miller, for the appellants.

      Mr. John W. Harding, for the respondent.
   The opinion of the court was delivered by

Pitney, Chancellor.

The facts of the ease are sufficiently outlined in the,opinion of the learned vice-chancellor. His findings are, in our judgment, fully sustained by the evidence.

The defendants comprise three classes of persons- — -first, the Glass Bottle Blowers’ Association of the United States and Canada, a. voluntary association, including in its membership nearly all the journeymen green glass bottle blowers of the United States and Canada; secondly, the officers of this association, who, as individuals, are made parties defendant; and thirdly, ninety or more individuals who were formerly in the employ of the complainant corporation at its glass works in Minotola, in this state, and who, on April 9th, 1902, went upon strike.

It is undisputed that in the year 1901 the Glass Bottle Blowers’ Association instituted a boycott of the complainant’s wares in the effort to coerce complainant to conform its business to regulations prescribed by the association. The evidence renders it clear that this boycott was still in force, and was being actively prosecuted by the association down to the time of the strike of 1903 and thereafter, and, indeed, after the filing of the bill of complaint herein.

Whether the defendant association or its officers directly instigated this strike possibly7' admits of doubt; but it is entirely clear that immediately after the strike began the association, through its executive committee and officers, took charge of it, organized and directed the strikers, and guided them in the subsequent proceedings.

There is abundant evidence that at the time the bill of complaint was filed and thereafter, the association, its officers and the strikers who are joined as défendants, made common cause in a war of subjugation against the complainant corporation. While there are individual defendants who are not shown by the evidence to have been personally implicated in certain of the specific acts of violence and coercion that ensued, they were all acting in concert in the general plan of campaign, and are equally subject to injunction with respect to the unlawful acts that were done and threatened.

The final decree that is now under review awards- an injunction restraining the defendants as follows:

First. From knowingly and intentionally causing or attempting to cause, by threats, offers of money, payments of money, offering to pay expenses, or by inducement or persuasion, any employe of the complainant under contract to render service to it to break such contract by quitting such service.

Second. From personal molestation of persons willing to be employed by complainant with intent to coerce such persons to refrain from entering such employment.

Third. From addressing persons willing to be employed by complainant, against their will, and thereby causing them personal annoyance, with a view to persuade them to refrain from such employment.

Fourth. From loitering or picketing in the streets or on the highways or public places near the premises of complainant with intent to procure the personal molestation and annoyance of persons employed or willing to be employed by complainant, and with a view to cause persons so employed to refrain from such employment.

Fifth. From entering the premises of the complainant against its will with intent to interfere with its business.

Sixth. From violence, threats of violence, insults, indecent talk, abusive epithets, annoying language, acts or conduct, practiced upon any persons without their consent, with intent to coerce them to refrain from entering the employment of complainant or to leave its employment.

Seventh. From attempting to cause any persons employed by complainant to leave such employment by intimidating or annoying such employes by annoying language, acts or conduct.

Eighth. From causing persons willing to be employed by complainant to refrain from so doing by annoying language, acts or conduct.

Ninth. From inducing, persuading or causing, or attempting to induce, persuade or cause, the employes of complainant to break their contracts of service with complainant or quit their employment.

Tenth. From threatening to injure the business of any corporation, customer or person dealing or transacting business and willing to deal and transact business with the complainant, by making threats in writing or by words for the purpose of coercing such corporation, customer or person against his or its will so as not to deal with or transact business with the complainant.

Each portion of the injunctive relief thus granted is directed 1 to some manifestation of the strife that was carried on by the combined defendants against the complainant. And in each respect the injunction is justified by the evidence in the case.

The employes of complainant referred to in the decree are those who either refused to join the strike or who entered complainant’s employ after the strike. With respect to these, it will be observed that the defendants are restrained from using coercion, inducements or persuasion to bring about a termination of the employment, whether the employe be under contract of service or not.

With respect to other persons, not as yet employed but willing to take employment under the complainant, the defendants are restrained from interfering to prevent this by coercion or personal molestation and annoyance; but are not restrained from using mere persrrasion in such a case.

There is a restraint against picketing designed to molest and annoy persons employed or willing to be employed.

And there is a restraint against the continuance of the boycott.

It is clear beyond dispute that the complainant has suffered grievously in its property and business through the acts of the defendants, whose continuance is thus prohibited. That the injury to the complainant is irreparable by action at law is likewise clear.

If, therefore, the acts themselves are unlawful and violative of the property rights of the complainant, the injunction is proper.

The conduct of defendants in using coercion in some cases and persuasion in others in order to bring about breaches of the contracts of personal service existing between complainant and some of its employes — defendants having, of course, full notice of the existing employment — was unlawful and actionable, upon well-settled principles. 3 Bl. Com. 142; Lumley v. Gye, 2 El. & Bl. 216, 224; Bowen v. Hall, 6 Q. B. Div. 333; Angle v. Chicago, &c., Railway Co., 151 U. S. 1, 13.

And the same is true of'conduct whose object and purpose were to bring about a termination of the relation of master and servant between the complainant and its employes in cases where there was no binding contract of service, but a mere service at will. Noice, Administratrix, v. Brown, 39 N. J. Law (10 Vr.) 569, 572; Brennan v. United Hatters, 73 N. J. Law (44 Vr.) 729, 743.

In Frank & Dugan v. Herold, 63 N. J. Eq. (18 Dick.) 443, 450, Vice-Chancellor Pitney said that to create the relation of master and servant it is not necessary that there should be a contract in writing, or even verbal, between them to work for any particular length of time; .that the relation exists when the one person is willing from day to day to work for another, and that other person desires the labor and makes his business arrangements accordingly.

Whether an action will lie for interference in the relations existing between employer and employe where there is a mere service at will, and where the interference is the result of fair competition in the labor market, is a question mooted but not necessary to be decided in the present case. The defendants were not competitors in the labor market. Their interference had for its immediate object the crippling of the complainant’s business. The only semblance of excuse alleged is that defendants desired to bring- about “improved labor conditions” in complainant’s works; but this object did not warrant the resort to unlawful measures.

Reliance is placed by the defendants upon the “Act relative to persons combining and encouraging’other persons to combine.” P. L. 1888 p. 36; Gen. Stat. p. 2344 pl. 23. The enactment is:

“That it shall not be unlawful for any two or more persons to unite, combine or bind themselves by oath, covenant, agreement, alliance or otherwise, to persuade, advise, or encourage, by peaceable means, any person or persons to enter into any combination for or against leaving or entering into the employment of any person, persons or corporation.”

In Mayer v. Journeymen Stonecutters’ Asso., 47 N. J. Eq. (2 Dick.) 519, 531, Vice-Chancellor Green apparently treated this act as legalizing private injuries. And in Cumberland Glass Manufacturing Co. v. Glass Bottle Blowers’ Asso., 59 N. J. Eq. (14 Dick.) 49, 53, Vice-Chancellor Reed construed it as permitting the adoption of peaceable measures for inducing workmen to quit or to refuse to enter an employment. Whatever may have been the purpose of its framer, there are, as we think, constitutional obstacles in the way of giving the act so extensive a force. The rights of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness, are declared by our constitution to be unalienable. N. J. Const., art. 1 pl. 1. No act of the legislature is to be construed as infringing upon these rights unless its language plainfy and clearly requires such a construction. If its language so reads, it is to the extent indicated unconstitutional and void. The act of 1883 is, as we think, properly to be treated as merely rendering the combination no longer indictable; in effect, as repealing the rule laid down b3r the supreme court of this state in State v. Donaldson, 32 N. J. Law (3 Vr.) 151. It does not legitimize an invasion of private rights nor prevent the party injured from having full redress. Its proper scope is indicated in the opinion of Vice-Chancellor Pitney in Frank & Dugan v. Herold, 63 N. J. Eq. (18 Dick.) 443, 447, 448.

So much of the decree as awards an injunction'to restrain the defendants from using coercive measures to prevent the flow of labor to complainant’s works is likewise proper. In Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. (18 Dick.) 759, 765, Vice-Chancellor Stevenson recognized and enforced the right of an employer to an injunction to prevent undue interference with those who wish to come to him for employment. It is principally upon this ground that injunctions against what is known as picketing have been sustained in this and other jurisdictions.

So much of the decree as is directed against the continuance of the boycott is plainly justified by the evidence, and accords with the law. Barr v. Essex Trades Council, 53 N. J. Eq. (8 Dick.) 101; Martin v. McFall, 65 N. J. Eq. (20 Dick.) 91; Temperton v. Russell (1893), 1 Q. B. Div. 715; Quinn v. Leathem (1901), A. C. 495.

The.decree under review should be affirmed, with costs. .

Minturn, J.

(dissenting).

I find myself unable to agree with the majority of my brethren with respect to that, portion of the decree of the court of chancery, which authorizes the issuing of an injunction against these defendants, upon the ground stated in the opinion of the learned chancellor speaking for the majority of this court, viz.: “Inducing, persuading or causing or attempting to induce, persuade or cause the employees of complainant to break their contracts of service with complainant ot quit their employment.”

It may be conceded since the decision of this court in Brennan v. United Hatters, 73 N. J. Law (44 Vr.) 729, that an ordinary wage employee bears towards his employer, in this state, a relation in modern legal nomenclature denominated as a “service at will;” and for the breach of which an action at law can be maintained.

Still with this concession it is difficult to discern in jurisprudence, outside of the sphere of those English cases which bear the distinct impress of feudal law and custom, any consensus of legal authority which can support the principle upon which this injunction rests; and of those cases Chief-Justice Parker, speaking for the New York court of appeals, said “they are hostile not only to the statute law of this country, but to the spirit of our institutions.” National Protective Association v. Cuming, 170 N. Y. 332.

Their origin is traceable distinctly to that class legislation which followed the emancipation of the villeins, under the feudal tenure; and to the scourge of the “black death” which followed such emancipation in the reign of Edward III., decimating Europe and culminating in what is known as “the statute of laborers” (22 & 23 Edw. III.) by virtue of which every vestige of individual freedom to contract and to combine was shorn from the wage worker and his social status was reduced by legislative act to that of a bondman. 1 Green’s History of the English People § I; 2 Bouv. 100.

Our inheritance of English common law carried with it only such of the English decisions as are consonant with our institutions and our public policy. 1 Kent Com. p. 343.

Concededly, therefore, the invocation of a line of adjudications emanating from a social order and a political environment radically different from our own, founded upon the feudal concept of “a service at will” in an age of enlightened citizenship, is so utterly repugnant to and incompatible with our basic governmental theory, vox populi vox Dei, as to be unsupportable in reason, and opposed to any system of enlightened jurisprudence, which invokes as a justification for its existence, either the dictates of reason, or the wisdom, the experience, or the service of humanity. “Precedents against law or reason,” says Lieber, “must be set aside.” Legal and Political Hermeneutics, 219; and so, Colee, “Quce Contra rationem furls introductor sunt, non debent trahi in consequentiam.’’ The case of the Proclamations, 12 Colee’s Rep. 74.

The constitutional guarantees, state and federal as well as the bill of rights, reach their protecting arm not only to property rights, but also to the rights of citizenship and free speech. And while in the march of human' progress and national development, the protection of property representing as it does the thrift, economy and energy of a people, is not to be underestimated; still the right to life and liberty has, from the dawn of history, been the potent and dominant factor in the forward march of progress and civilization. Spenc. Social Stat. ch. 5; Guizot Hist, of Civ. in Europe ch. 2.

Force or intimidation can never be recognized as a lawful modus opermdi in the propagation of any doctrine or cult, or for the assertion or prosecution of any right; and to the vindication of this principle the unanimous decisions, both state and federal, bear testimony.

But in the effort, to sustain the property guarantees of the fundamental law against infraction, we are apt to lose sight of those guarantees of liberty and happiness which are equally fundamental; and if a concrete case were needed to illustrate this tendency, we find it in the case at bar.

A statute enacted by the legislature of this state and quoted verbatim by the learned chancellor (P. L. 1883 p. 36) made it lawful for "any twro or more persons to unite, combine or bind themselves to persuade, advise or encourage by peaceable means any person or persons to enter into any combination for or against leaving or entering into the employment of any person or persons or corporation.” Assuming that this relationship of a service at will is to be dignified with the status of a formal contract inter partes, then concededly the terms of this statute must be read into it. • 2 Kent Com. 571.

Upon two occasions at least, this statute has been construed by the court of chancery, not only as relieving such combination of the criminal aspect theretofore ascribed to it, but also as a legislative declaration of public policy, and presumably sul silentio, the learned vice-chancellors who passed upon the legal effect of the enactment, found nothing unconstitutional in its provisions.

Thus Vice-Chancellor Green in Mayer v. Journeymen's Stone Cutters Association, 47 N. J. Eq. (2 Dick.) 519, refused to order the issue of an injunction upon the ground that "the acts threatened are declared by statute as not unlawful.” He characterized the act of 1883 as declaring “a policy of the law” which, in his judgment, has “revolutionized” the common law doctrine of unlawful combination, and concluded his judgment with the statement that the peaceable intervention contemplated by this act was “unoffensive to any provision of our law.”

Vice-Chancellor Reed reviewed the same legislation in Cumberland Glass Manufacturing Co. r. Glass Bottle Blowers' Association, 59 N. J. Eq. (14 Dick.) 49, and stated “The words are perhaps broad enough to legalize a combination to persuade individual workmen to quit, or refuse to enter the service of any person,” and refused the injunction on that ground but granted it on another.

Vice-Chancellor Pitney’s opinion in Frank & Dugan v. Herold, 63 N. J. Eq. (18 Dick.) 443, marks the turning point in the construction of this statute, for he there held that it only relieved an act formerly criminal, of its unlawful character, and then dealt with the subject sub judice from a constitutional point of view and declared, “It is argued that one person has a right to persuade another to work or not to work. That may be if the other is willing to listen and be persuaded” (at p. 449), and again (at p. 452), “The operatives have the right which their employers cannot complain of to consider the question whether they desire to work for them any longer and for that purpose they have the right to listen to arguments on that subject.”

Vice-Chancellor Stevenson in Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. (18 Dick.) 765, following the consideration given by Vice-Chancellor Pitney to the statute, termed this service at will “a newly recognized right” and defined it to be “that peculiar element that is an interest which one man has in the freedom of another;” which he further defined as “freedom in the market; freedom in the purchase and sale of all things including both goods and labor;” a right, says the learned vice-chancellor, “that our modern law is endeavoring to insure to every dealer” (at p. 766).

Still later in Fletcher Company v. International Association of Machinists, 55 Atl. Rep. 1077, the same learned vice-ehancellor conceded the right to workmen to organize and use peaceable persuasion, substantially as Vice-Chancellor Pitney had conceded it in the Harold, Case. But in both determinations the learned vice-chancellor makes the right to “the free flow of labor,” as he termed it, the ratio decidendi, thus instituting an analogy as an economic proposition between goods and merchandise and labor; a fallacy all the more confounding to any attempt at harmonious decision when the statutory enactment in question is disregarded.

The analogy ignores the constitutional guarantee of freedom of speech and freedom of the press representing labor’s demands, because labor, unlike goods, cannot be severed from the human entity and be considered apart from the man, for as Locke says, “Every man has a property in his own person, this nobody has a right to but himself.” Essay on the Human Understanding ch. 6. It ignores factory and inspection laws, child labor laws and those legislative protective enactments for workshop and factory, intended-to mitigate the hardship incident to the application of the legal rule of assumption of risk, all of which are proper subjects for discussion between fellow-workmen, with a view to enforcing compliance by the employer with the law as the alternative to a strike. It ignores the fact that in every line of trade and business, combination is the tendency of the age, and that in this state our Corporation act is designed to accomplish that very purpose and has accomplished it to a great extent throughout the land. The maxim that “competition is the life of trade” is not contained in the lexicon of the political economy of this day, and eminent jurists have noted the fact of its elimination as an axiom in commercial life — except it would seem in its application to the wages of labor, in which event, the law of supply and demand and the creation of a free labor market, as indicated by the learned vice-chancellor practically relegates the wage earner to the status of a chattel, and corresponds to the judicial conception entertained of black labor in the Dred Scott Case. Dred Scott v. Sandford, 19 How. 393. In the case at bar the learned chancellor goes further and declares the act of 1883 to be unconstitutional in its application to private rights as in contravention of article 1, page 1, of the state constitution. It certainly would be indefensible tested by this constitutional guarantee, if it empowered these defendants to combine to destroy property or to combine for any other unlawful purpose. But such is not its intent, since it simply empowers a number to do what it would 'be perfectly lawful for one to do, and such a power has been repeatedly held to be constitutional. National Protective Association v. Cummings, 170 N. Y. 315; Wabash Railroad v. Hannahan, 121 Fed. Rep. 563; Mantell v. White, 185 Mass. 255.

The right conferred is in essence only the fundamental right of free speech, and the sole limitation upon that natural right is, that those exercising it "are answerable only for their acts in the interests of good citizenship, morality and decency.” United States v. Williams, 194 U. S. 279; Roberts v. Baldwin, 166 U. S. 261; Wise Cit. 189.

It is to be noted that this constitutional provision is but a paraphrase of the provision upon the same subject contained in the bill of rights; and it is to be observed that when that great charter was promulgated a crisis was impending, in which the great desideratum was not the right to enjoy property, but the right to enjoy personal liberty, and to pursue individual happiness, without regal interference. That document provided

“that all men are by nature equally free, independent and have certain inherent rights of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity, namely, the enjoyment of life and liberty with the moans of acquiring and possessing' property and pursuing happiness and safety.” Revised Code of Virginia (1819), vol. 1 p. 81.

This conception of life and liberty has dominated all other considerations in the development of constitutional law; and has led the United States supreme court in furtherance of its application under the police power, to ignore the fact that judicial recognition of it was tantamount to the destruction of the private property involved. Slaughter House Cases, 83 U. S. 36; Stone v. Mississippi, 101 U. S. 814; Mugler v. Kansas, 123 U. S. 623.

But the denial of this right to combine in furtherance of free speech implies such a discrimination against these defendants that it may, with perfect propriety, be argued that their rights as citizens are denied to them in contravention of the fourteenth amendment of the federal constitution, which guarantees that their privileges and immunities as citizens shall not be abridged. Strauder v. West Virginia, 100 U. S. 303; 1 Kent Com. 621.

In other jurisdictions, the correct rule is declared to be in consonance with the spirit and language of the statute of 1883. Thus the Virginia supreme court of appeal has declared that it is “not unlawful for strikers to persuade employes to leave the service of their employer or to dissuade other workmen from seeking employment with him” when unaccompanied by force or intimidation. Everett Waddy Co. v. Richmond Typographical Union el al., 105 Va. 188; National Protective Association v. Cummings, 170 N. Y. 315; Jones v. Van Winkle Machine Works (Georgia Supreme Court), 628 E. R. 236; 8 Anno. Cases 796, and cases cited; 24 Cyc. 831, and cases cited.

It may be appropriate to conclude this reference by quoting an extract from the opinion of Judge Taft, sitting in the United States circuit court in Phelan’s Case, 62 Fed. Rep. 803: “The employes of the receiver have the right to organize into or join a labor union which would take action as to the terms of their emplojunent. The officers they appoint or any other person they choose to listen to may advise them as to the proper course to be taken in regard to their common employment, or if they choose to appoint anyone he may order them on pain of expulsion from the union peaceably to leave the employ of their employer, because any of the terms of the employment are unsatisfactory.”

The act of 1883 confers no greater privileges upon these defendants than does the language of this eminent jurist, and if that act be condemned by the constitutional guarantees referred to by the learned chancellor, this pronouncement must suffer the same animadversion.

It is conceivable that substantial justice could have been effectuated in this case without entrenching upon the constitutional privileges of these defendants, for in the final analysis, says Montesquieu, “Justice is but a relation of congruity which really subsists between two things. This relation is always the same whatever being considers it; whether it be God, an angel, or, lastly, a man.” Spirit of the Law ch. 6.

Entertaining these views, I shall vote to reverse and modify the decree accordingly.

Garrison, J.

(dissenting).

In so far as the decree appealed from directs that the defendants be enjoined from the peaceable persuasion of persons who are not under any contract to serve the complainant, I think the court below was in error, and that to that extent its decree should be reversed.

I am requested by Justice Swayze and by .Judge Bogert to say that they concur in the foregoing view.'*

For affirmance — Ti-ib Chancellor, Chiee-Justice, Eeed, Trionchard, Parker, Yoorhees, Yredenburgi-i, Yroom, Green, Gray — 10.

For reversal — Garrison, Swayze, Minturn, Bogert — 4.