text:
    James M. Allgor et al. v. The New Jersey State Hospital at Trenton et al.
    [Decided September 14th, 1912.]

      1. Act of July 5th, 1900 (P. L. 1906 p. 715; 3 Comp. Stat. 1910 p. 3206 § 125 et seq.)', section 1, providing that no person shall be confined as insane, except upon an application with the attached certificate of two physicians, under oath, setting forth the insanity of the person, and, in section 2, that no person shall be held in confinement as insane for more than fifteen days, unless the applicant shall cause the matter to be presented to a justice of the supreme court, is intended as a protection of the public insané asylums, and to prevent their being burdened with the ■care o£ sane persons, and is not intended to provide fqr the apprehension ■and confinement of persons alleged to be insano; and the confinement, on two successive applications, made under this statute, and not by virtue ■of an order before some legal tribunal, of a person not dangerously in■sane, was unauthorized.
    2. To construe such statute so as to authorize such confinement merely ■on the applications, without some form of legal proceeding, would render it violative of Const. TJ. S., Amend. 14, providing that no state shall pass ■any law which shall deprive any person of liberty without due process ■of law.
    3. Where, in habeas corpus proceedings, the judge determined that the party alleged to he insane should be released, so far as anything set up by the return showed, the judge wag not required, by the Rabeas Corpus act (2 Comp. Stat. 1910 p. 26J/.6), section 31a, relating to inquiry into the sanity of persons confined in hospitals for the insane, to proceed with a useless inquiry into his sanity.'

      4. Habeas Corpus act (2 Comp. Btat. 1910 p. 261/6), section 31a, relating to inquiry into the insanity of persons confined in hospitals for the insane, applies only to cases where there has been a commitment founded, or purporting to be founded, upon a finding of insanity.
    This is a hearing upon a writ of habeas corpus sued out on behalf of Janies M. Allgor, who is confined at the New Jersey State Hospital at Trenton (the state asjdum for the insane).
    In (he return to the writ made on the 5th day of August, 1912, the respondents set up that James M. Allgor
    “is restrained of his liberty and detained at the N. J. State Hospital at Trenton, but * * * is. duly restrained lawfully by virtue of two requests and certificates for indigent patient’s commitment to the New Jersey State Hospital (for the insane), at Trenton, * *
    It then sets out that 'the first of said requests was made by Jacpb Abrams and the second by Peter Hall Packer; that Allgor was “admitted for confinement as an insane patient” on the 24th day of July, 1912.
    The return concluded by stating that the said Allgor is . restrained of bis liberty by virtue of the provisions of an act “entitled,” &c., “approved July 5, 1906, cliap. 324, P. L. 1906, p. 715,” &c.
    Attached to the return are the two requests and certificates mentioned, therein. They are identical in form and entitled “Bequest and Certificates for Indigent Patient’s Commitment to the New Jersey State Hospital (for the Insane) at Trenton.”
    The first is dated July 22d, 1912, and is the request of Jacob Abrams. The request concludes: “The undersigned is a Chief Marshall, Borough of Sea Bright of the said James Monroe Algor.” There are certificates by John W. Bennett, H.D., and by Charlee J. Greiner, M.D., sworn to by each “on information and belief” on the 22d of July, 1912, before P. Hall Packer, a notary public. There does not appear to be any reference in either certificate or affidavit as to the time or times when any examination of the patient was made. It ivas under this first request that Allgor was received at the asylum on July 24th, 1912. The second request is dated August 2d, 1912, and is made by Peter Hall Packer. Among other things it recites:

      “The circumstances causing the applicant to interest himself is All-gor’s conduct in the community * * * The undersigned is a Justice of the Peace Monmouth County of the.said James M. Allgor’s District.”
    Attached to the request are certificates of John ,W. Bennett, M.D., and Harry E. Shaw, M.D., with similar affidavits and lack of statement of time or times of examination of patient.
    The petitioners traversed the return and set up first that said Allgor was not lawfully restrained 'of his liberty by virtue of two said requests, &c. Second, that Abrams had signed the request by mistake and misapprehension as to its contents and effect, and subsequently personally visited the hospital and informed the medical director of such fact and that he, Abrams, withdrew from and would no longer he sponsor for any such request. Thirdly, the qualifications of the physicians certifying are attacked.
    As to the Packer request the traverse denies its efficacy as a commitment and attacks the physicians’ certificates, &c.

      Mr. William J. Leonard, for the petitioners.

      Mr. Edmund Wilson, attorney-general (Mr. Francis II. McGee, with him), for the respondents.
   Garrison, V. C.

(after making above statement).

So soon as the return was made and the traverse presented it was obvious that the initial question was that which concerned', the legislation upon the subject-matter and the legal effect to he given the requests and certificates herein.

It was observed that it was not proper to proceed to take evidence on disputed questions of fact until the legal questions arising on the face of the proceedings had been investigated and determined in such a manner ás to show the necessity of resorting to an investigation of matters of fact in dispute.

The legislation upon which the respondents rely is the act of 1906. P. L. 1906 p. 715; Comp. Stat. p. 3206 § 125 et seq. The first section of this act provides:

“No person shall be committed to or confined in any institution for the care and treatment of the insane in this State except upon filing with the Medical Director " * * an application in writing of a person interested in the admission of such person; said application shall state the following facts, if known to the applicant [description, age, &c. of patient] and the degree of relationship or other circumstances causing the applicant to interest himself in said person; and to every* application filed as aforesaid shall be attached.the certificates of two physicians under oath setting forth the insanity of said person.”
“Sec. 2. No person so confined as aforesaid shall be held in confinement for more than fifteen days, unless the person applying as aforesaid shall within that time present, or cause to be presented, to the Justice of the Supreme Court presiding in the Courts of the County in which the person so confined resides [or to other named judicial officers], the application filed as aforesaid with the certificates attached as aforesaid, or copies thereof * * * said justice or judge may, in his discretion, on presentation to him of said application and certificates * * * institute an inquiry and take proofs as to the insanity of said person so confined; and said Justice or Judge may, in his discretion, call a Jury to determine the question, of the insanity of said person * *

This section then provides that the inquiry must be finished in fifteen days, or if more time is required, the judge must so certify.

Subsequent sections provide for certificate by the judge and orders by Mm showing a finding of sanity or insanity and committing, releasing, transferring or otherwise dealing with the person and matter; and making all such judicial orders sufficient warrant for the head officer of the institution, doing whatever is therein contained.

There is provision made for indigent insane persons, although certain features of the previous act (P. L. 1895 p. 497; Comp. Stat. p. 3204 §§ 117, 119) are not incorporated in the later act or otherwise provided for.

The 1895 act provides for an application in the first instance to a judicial officer and the whole proceeding is under his control; and further requires the judicial officer to act when the application is made to him; and does not leave it discretionary whether to make the inquiry or not as the later act does. The earlier act also deals with those alleged to be insane and dangerous or violent.

Enough has been cited to indicate some of the obvious questions which at once occur to anyone considering the subject-matter.

The first impression one gets from reading this 1906 statute is that, it is intended as a regulation and protection of the public insane asylum, and was designed to prevent persons from obtaining lodgment therein unless certain formalities were complied with, such formalities as would result in restricting the patients to those who have been found to be insane. There is -.an entire absence of all provisions such as would be necessary if the act was one intended to be utilized to seize, detain and confine persons in invitum.

The very terms used in the first section of the act lend strength to this impression: “No person shall be committed or confined * * * except upon filing * * * an application in writing of a person interested in the admission * * And in the second section it is provided that the person confined is to be turned out in fifteen days unless the person making the application for the admission shall present the papers to a judge. All of this is understandable if the act is considered as above suggested it should he, as a regulation and protection of the public insane asylums and to prevent their being burdened with the care of those not found on inquisition to be insane, but they are not at all what we would expect to find in a statute intended to provide fqr the apprehension, arrest, detention and confinement of persons alleged to be insane. If the act was intended to protect the alleged insane and the public there would of necessity, it now seems to me, he provisions for warrants or. orders of arrest or some substitute therefore, something in the nature of a commitment pending inquiry, a requirement that some court should exercise the jurisdiction, and there surely would not be a provision that the detained person (no matter how insane or dangerous to others or to himself, indigent, of what not) should be turned out at the end of fifteen days if the “interested person” does not choose to present the matter to the judge—or if the judge does not in his discretion choose to undertake an inquiry.

On behalf of the state it is argued, however, that this is not the construction which should be put upon the statute; that it is construed by the state officers as an act requiring the forcible caption and detention of any person on whose behalf anyone has interested himself to apply for admission to the insane asylum. They contend that if the application is regular in form and the certificates of the physicians are attached as provided in the act, lhe3r are required to arrest and transport the person named in the application to the state insane asylum and there confine him against his will for fifteen days.

In passing, I think attention should be called to the fact that the certificates of the physicians, which are required by section 1 of the act to be under oath, do not contain matter which by section 5 would seem to be absolutely essential to their validity; and if this is found to be the case, the admission papers are not regular on their face. Section 5 of the act provides: “To certificate ’ of insanity shall be made except after a personal examination of the person alleged to be insane made not more than six days prior to the confinement of said person * *

I fail to find in the certificates attached to the applications in1 the case at bar any -time stated when any examination was made. This is surely an important, if not fatal, omission. The oath, as before stated in this case, is simply on information and belief. I will return now to the consideration of the statute in question as contended for by the state.

Only the briefest reference is necessary for certain fundamental considerations. I lake it that in all legal proceedings persons are considered sane until or unless the contrary is shown. The fourteenth amendment provides: “That no stale shall pass any law which shall deprive any person of life, liberty or property without due process of law.” To act of a law-making body of a state can be good as a law if it deprives a person of libert3r without due process of law.

1 do not propose in this off-hand memorandum to elaborate or to attempt to cite authorities.

I take it as too obvious to require argument that the phrase “due process of law” connotes something in the form of a legal proceeding, i. e., a tribunal, notice, opportunity to be heard, &c.

I therefore assume that no legislative act is law under the fourteenth amendment which seeks to deprive a person of his liberty excepting in the course of something in the form of a legal proceeding.

The briefest inspection of the act under consideration tvill show that by the construction put upon it by tlie attorney-general it seeks to .deprive persons of their liberty and to confine them against their will without the slightest pretence that it is in the course of any legal proceeding.

The attorney-general argues that the act permits anyone to interest himself in another person and thereupon to apply for the admission of such other person to the state insane asylum, and upon obtaining certificates of two physicians, it becomes the duty of the authorities at the asylum to take said person, confine and keep him against his desire to be free for a period of fifteen days; and longer if the "interested person,” i. e., the applicant, shall care to present the matter to a judge and the latter shall care to institute an inquiry and shall certify the further time over the fifteen clays required for such purpose. If the "interested person” does not care to pursue the matter and does not therefore present it to a judge, then the asylum at the end of fifteen days’ confinement releases the prisoner; similarly, I suppose, a release would result if the "interested person” should present the matter to a judge and he should exercise the discretion lodged in him by the act and determine not to make any inquiry.

Apparent ty, however, from the proceedings in the case at bar, Hie confinement may he indefinite if enough "interested persons” should file successive applications for the admission of the same person. In the case in hand, one such application was filed by Abrams, a marshal of a borough, upon affidavits taken before P. Hal] Packer as notary public. The application was dated the 22d of July, 1912, and later, on August 2d, 1912, Packer, himself as the “interested person,” filed an application for the admission of the same person.

In the return it is set up that he is detained in virtue of these two applications. The fifteen days under the first expired August 6th, and under the second, August 17th. It will readily be seen that if these applications are sufficient warrant to deprive a man of his liberty until fifteen days have elapsed to see whether - the "interested person” who made.the application will present it to a judge, then by such interested, person in-each instance refraining from so presenting the matter to a judge, the incarcerated peison remains in confinement without possibility of re-, lease for as many fiflecn-day periods as successive applications shall warrant; and all without any provision for the alleged insane person to initiate any proceeding for trial.

Furthermore, it will not fail to be observed that there is no requirement upon anybody’s part to present the matter to any judge or court. There is no opportunity whatever afforded the so-called insane person or anyone on his behalf; but the “interested person” or applicant for the admission has the choice of presenting the same to a judge or refraining as he sees fit. In my view it would be a sheer waste of time to discuss the question as to whether this could by any stretch of language or thought be considered “'due process of law.” There is no process of law about it. Thus construed the statute becomes an undue method of depriving persons of their liberty without anything resembling a legal proceeding being invoked. I cannot conceive it possible that such an act (so construed) would be a valid law under the fourteenth amendment to the constitution of the United States.

In the argument on behalf of the state, it was suggested that the detention of a person before trial or before inquest as to •sanity and in similar situations has been held to be due process of law, and an attempt was made to assimilate the proceedings provided for by the act in question and such proceedings. I concede fully all the principles- of law contended for by the learned •counsel for the state, but am utterly unable to see their application to the facts of the case in hand. The very moment that you ■state that the detention is by virtue of-an order in a proceeding before some legal tribunal you have differentiated your instance from the one at bar.

There has been much controversy even where the proceedings ■are legal in form, i. e., where they are instituted in some tribunal -charged with jurisdiction; controversy about detention without hearing, without sufficient cause, on insufficient allegations, •eha'rges, complaints, &c., through a whole variety of objections. But in every such case to which my attention was ever drawn it was laid down as a fundamental rule that before detention •could be legal there must be some process of law occasioning it, that it was in the course of some proceeding legal in its nature or form.

In the suit at bar, as before stated, ^nd as the return shows, there is not the slightest pretence that the detention is justified because in the course of airy proceeding legal in its nature or. form. He is detained for fifteen days because an application has been made to admit him to the asylum and two physicians have made certificates and attached them to the application. No papers have been filed in any court. No application has been made to any court. No one is under any obligation to apply to any court and no opportunity is furnished the person in confinement to apply if lie wanted to. In'other words, no legal proceeding of any land has been instituted and none need ever be so far as this act is concerned.

I cannot bring myself to believe that forcible detention under such circumstances is justifiable in view of the'law.

This disposes of the matter actually before me; and I shall not attempt a review of the law otherwise relating to the whole subject-matter. Undoubtedly, the police power of the state is exercisable with respect to the insane when they are dangerous to self and to others and when they are proper subjects to be taken forcibly from their families and confined for the public good. There are statutes with respect to some such eases, and the common law covered others. A dangerous lunatic, as I understand the common law, was always subject to arrest and detention; due process of law would of course require the institution of some proceeding and proper orders for his final commitment therein. But with all such matters I have no concern on this writ and return.

The respondents set forth that they rely wholly upon the two applications for admission and upon the statute of 1906 as their warrant for his detention. 1 do not think such applications for admission are sufficient in view of the law, and I do not find that there-is justification for holding him by reason of such applications.

"Whether the other features of the act are sufficient to warrant his commitment pending an inquest and an inquiry and a finding therein, can undoubtedly be tested in the proceeding which has been instituted (since the granting of this writ) before a justice of the supreme court. One or both of the applications for admission have been b3r someone brought to the attention of said justice and an order has been made by him which has been shown to me committing Allgor to the state asylum until an inquest shall be held. The order herein will of course not affect any order or proceeding by said justice. The order to be made herein will prohibit the further detention by virtue of anything in the return alleged. At the time of the return 'the only justification for holding the man was because of the applications for admission. These 1 find to be insufficient in law for the purpose of' detention.

If the defendants justify themselves in holding him- by virtue of some subsequent order of a justice of the supreme court, any attack thereon should be made to the justice who made the order. That matter arose subsequent to the writ and return and is not before me for adjudication. On behalf of the petitioners I am-asked to proceed with an inquiry as to sanity or insanity of All-gor because of section 31a of: the Habeas Corpus act. I decline-to do so. In the first place, I find that he should be released so-far as anything set up by the return shows, and therefore I certainly should not proceed with a perfectly useless inquiry. And-secondly, I read that section as only applying to cases where there has been a commitment founded or purporting to be founded upon a finding of insanity; and a method of subsequent inquiry into this with a view of release if the person is found sane. ■

An order will bo made in accordance with the views above-expressed. ’


source: Caselaw Access Project

author: Garrison, V. C.

license: Public Domain

text:
    Josephine M. Lake, administratrix, &c., v. Josephine T. Weaver.
    [Decided February 19th, 1912.]
    3. It is a thoroughly settled principle that where one’s rights by ibis-concurrence have been actually submitted to litigation, even though be-be not the nominal • party, he may not relitigate those rights in some-cause in, which he is the nominal party, £or the reason that since he was an actual party litigating or participating in the previous adjudication he will not be permitted by a subterfuge to get away from that which was decided there and relitigate it.
    2. Antecedent litigation in a previous suit between the parties hereto reviewed, and after examination of pleadings and proofs in this suit— if eld, that the complainant’s bill should be dismissed, either (1) be-, cause in so far as she now claims as administratrix that the deed in •controversy in both suits is a mortgage, she has failed to prove it in this ■suit, and she must fail for that reason; or else (2) because by appealing to the judgment and proceedings in the other cause she concedes that they are relevant to this suit, and as such, they are res adjudicataj and if res adjudicada, of course the entire matter comprised in that judgment ■is settled as between the parties thereto and hereto.
    On bill, &c.

      Mr. John J. Crandall, for the complainant.

      Messrs. Melosh & Morien and Mr. Gilbert Collins, for the ■defendant.
   Garrison, V. C.

(at close of proofs, and after argument of -counsel).

This is a. final hearing upon a bill, answer, replication and proofs in open court. The bill in this case is filed by Josephine M. Lake, and in the course of the bill she recites that she is the ■administratrix of her father’s estate, but she nowhere indicates that the bill is filed by her solely as administratrix, and therefore it seems to me that it. must clearly be held that the bill is one brought by her' individually and also as administratrix of her father’s estate.

The bill sets out that Theodore Weaver died in 1893, intestate, ■and that on the 14-th of November, 1910, Josephine M. Lake be■came his administratrix; and-further, that Samuel Weaver, who was the father of Theodore S. Weaver, died in 1871, and that, •Josephine T. Weáver, the defendant, became his executrix. It then sets out the filing of a final account by Josephine T. Weaver, the executrix of Samuel Weaver, and also that Samuel Weaver •died seized of certain lands in Atlantic county and that by the terms of the will, and the facts, those lands became vested in Ella Etta Smith, the sister of Theodore S. Weaver, in Theodore S. Weaver and in Josephine T. Weaver, one-third each; and that by partition proceedings in the court of chancery by the grantee of Josephine T. Weaver, in a suit wherein such grantee was complainant and Ella Etta Smith and the heirs-at-law of Theodore S. Weaver were defendants, such proceedings were had that the share of Theodore S. Weaver, intestate, was paid into this court, wherein the same now remains as a part of his estate, and which share, with interest, amounts to more than $5,000. The complainant further sets out that since the partition proceedings and the payment into court, Josephine T. Weaver, by way of cross-bill, in a proceeding in this court between herself and the heirs of Theodore S. Weaver, claimed and set up that since the filing of her final account she had divers and sundry transactions between herself and Theodoré S. Weaver in his lifetime by which she advanced to him more money than was due him out of the personalty of Iris father, Samuel Weaver, and that in another personal transaction between her and her son Theodore in his lifetime he executed and delivered to her a quitclaim deed, conveying all of his interest in the property left by the father, above described, by way of mortgage, to secure all sums in excess which she could legally establish that she had advanced to Theodore and for which he died indebted to her beyond the amount due him fox his share of 'the personalty of his father’s estate, and various- figures are set out with respect to this in the bill. The bill then charges that there was no excess of debt due Josephine T. Weaver over and above the amount that Theodore S. Weaver was entitled to from his father’s estate, and that Josephine T. Weaver cannot establish or prove any debt to- her whatever, and that the whole scheme was a fraudulent one on her part; and the bill sets forth that it is necessary for the proper administration of the complainant’s trust that Josephine T. Weaver should answer this bill and fully establish her claim against the complainant’s testator (although it means “intestate”) to the end that she, the complainant, may pay and satisfy the same in the due administration of her trust; and then the complainant avers that she submits to the decree of this court awarding security to the said Josephine T. Weaver as in the decree set forth, and demancls the right and opportunity to controvert and litigate whether there exists, under said decree, any debt whatever of her said intestate (that is, Theodore Weaver), and if so, the amount thereof, to the end that she may proceed with-the administration of her trust. She thereupon calls upon Josephine T. Weaver to answer the bill, 'without oath, and to make discovery of various things. In the original bill there was no other prayer than the ■one for general relief. Subsequently, it was amended so that it wag prayed that the complainant might have leave to redeem said lands from the-mortgage in this bill mentioned by payment of the amount of debt of intestate to defendant that shall he found due and payable to wholly relieve and discharge the inheritance from ihe lien thereof. To this bill pleas were filed by Josephine T. Weaver by which, first, the proceedings in the suit of Frank Lake and others, complainants, and Josephine T. Weave.r, defendant, were alleged to be an estoppel or to be conclusive against the complainant’s right of action in this suit; and second, that if Josephine T. Weaver ever had' any claim against the personal estate of Theodore S. Weaver, deceased, or if there was ever any indebtedness from Theodore S. Weaver, deceased, to Josephine T. Weaver, the same was barred by the statute of limitations, and, therefore, his administratrix is unconcerned therewith and has no right in this action; and third, that at the time of the settling of the account between Josephine T. Weaver and Theodore S. Weaver, as a result of which the deed in question was ■given, there were certain third persons, unrelated to the parties, who were present and would be the best witnesses to the.transaction, and that they have since died; and they set forth other allegations which they claim should induce this court to dismiss this hill upon the ground of the complainant’s laches, appealing to the general equitable doctrine that where a delay of any sort has prejudiced one side the court will be loath to administer relief to the side who had been favored with the delay as against the side which is hurt thereby.

After careful consideration of those pleas this court filed an ■opinion as the result of which it was determined that the benefit of those pleas should be saved to the defendant at the hearing, and the defendant was likewise permitted to file an answer, and that has been clone. The answer is a practical amplification of the matters in the pleas, plus a denial of the other matter set up in the bill, and a tender of certain evidence which, broadly speaking, is the whole record in the previous suit.

This case then came on for hearing upon the issue joined upon this bill and answer. The complainant has introduced no proof whatever. The defendant has introduced some proof.

Before disposing of the matter upon the ground upon which I think it right to dispose of it, I propose to allude to certain other features of the case.

. It will he observed by reading the bill that the complainant nowhere avers that there were any moneys belonging to the estate of Theodore S. Weaver which could be used to pay off any debt which might be found to be due by said estate to the defendant; and'surely, if this is merely an academic question, namely, if she as the administratrix is merely calling upon this court to find out for her intellectual interest what amount her father owed, this court would give the matter no consideration whatever.

Yext, it will be observed that she nowhere alleges that the heirs-at-law ever called upon his administratrix to take any steps to exonerate the land descending to them1 from the burden of' any lien or alleged lien thereof. Eurthermore, it will be observed that the only ground upon which this complainant can come into .this court is that land of the decedent, of whom she is the ad>ministratrix, has descended to heirs, which land is burdened by a debt, which debt’she as administratrix may be called upon to pay, and has the right to pay and the duty to pay, so that the laird may be exonerated in favor of the heir; because, for reasons to be hereafter pointed out, she can have no individual right whatever in this ease; her right must entirely rest upon such as may he found to exist in her as administratrix of Theodore S. Weaver. That’ being so, it is curious to see that she nowhere in this bill ever admits that anything is due and which she, as administratrix, could be called upon to pay, but strongly contends in every averment that nothing whatever is due, which creates a most remarkable and anomalous proceeding. It is too much elemental and primitive law to require citation that an administratrix has nothing whatever to do with the real estate of her decedent. The only possible interest she ever conld have in it would be through the orphans court for the payment of debts. That being so, her only right to interfere in any way concerning the real estate of the decedent would he the right to go to one who had a lien upon it and pay that lien so as to exonerate the land for the heir, and this right only exists where the debt was created by her decedent in his lifetime, and where the personal estate is liable for the payment of the debt. Now, to permit one who denies that there was ever any debt—who denies that she in any way was responsible for anything, to conic into a court of equity and litigate that question with a person who holds a deed signed by the decedent in his lifetime, seems to me to be such a contradiction in terms as to show that it cannot exist in any proper course of proceeding or administration of law. However this may be, I do not purpose placing my decision upon any ground of this character; nor do I purpose putting it upon the ground that there is any laches attributable to this complainant; which has been strenuously urged upon me as the proper one upon which to dismiss this bill and deny relief; nor do I propose to put it upon the ground also strenuously argued that since there is no suggestion of any debt due by Theodore S. Weaver in his lifetime to his mother for which the personal estate left by him at his death would be first liable, that therefore there is no right in this administratrix to bring this suit. There is a great deal to be said iu favor of this view, and the recently-decided case of Smith v. Wilson, 79 N. J. Eq. (9 Buch.) 310, is instructive and interesting on this point. Nor do I propose to sustain the defendant’s position and dismiss this bill upon their further allegation that since the statute of limitations has undoubtedly barred whatever right of action there was by Mrs. Weaver against her son for any moneys that she advanced him, there is now no burden upon his personal estate to be borne by bis administratrix, and therefore no duty upon her to use the personal estate to exonerate the land in favor of the heir. Nor do I intend to sustain the defendant’s position and dismiss the bill upon another very cogent point urged by the defendants and. for which there is a great deal of authority, and that is, the actual identity of the parties in this suit who will be favored by the decree herein asked for with the parties who aetually litigated in the suit heretofore referred to of Frank M. Lake v. J osephine T. Weaver et al., the proceedings and decree in which settled the amount due upon the alleged mortgage. As I had occasion to remark in the case of Barber v. Miller, the opinion in which is in 72 N. J. Eq. (2 Buch.) 248, subsequently affirmed in the court of errors and appeals (74 N. J. Eq. (4 Buch.) 453), and as is shown by a case called to my attention by counsel for the defendants in the same court—Lyon v. Stanford (Court of Errors and Appeals, 1886), 42 N. J. Eq. (15 Stew.) 411—there is a thoroughly settled principle that where one’s . rights bjr his concurrence have been actually submitted to litigation,' even although he be not the nominal party, he may not re-litigate those rights in some cause in which he is the nominal ■party for the reason that since he was an actual party litigating or participating in the previous adjudication he will not be permitted by a subterfuge to get away from that- which was decided there and relitigate it.

Since, in the case in hand, the previous suit was brought by Josephine M. Lake and her brother George Weaver, who were the-sole heirs-at-law and the sole next of kin of Theodore S. Weaver, and since in that suit, as against them, this conveyance was held to be a mortgage upon which a certain sum was due, it is a very strong argument which contends that in this suit in which Josephine M. Lake, the same person as administratrix, seeks to exonerate the laud for her benefit and the benefit of her brother, is really an attempt to- relitigate exactly the same question which was litigated in their behalf by them in the previous suit, although in the previous suit she did not appear technically as administratrix of her father’s estate.

So far as appears in this case, the only persons to be benefited by this litigation are J osephine M. Lake and her brother George Weaver. They are the heirs-at-law to whom this land descended, if it did descend, and the burden is on their inheritance, and the real purpose of this suit, of course, is to take advantage of the-Evidence act which will close the mouth of the other persons as to the amount of the debt, and render it probably impossible for them to establish—if the burden is cast upon them to establish— what the amount of that debt is, so that the heirs will be able to have' the land unencumbered by the mortgage, although' in a direct case where that was directly in issue, or was held to be so by the court, it was found that the amount was definite and fixed and must be paid before the land could be exonerated in their behalf.

I propose to advise that this bill shall be dismissed, and the paramount reasons are these:

Josephine M. Lake and George Weaver, as previously stated, brought a suit in 1905 against Josephine T. Weaver and others. That suit was brought to prevent Mrs. Weaver from further proceeding under the statute before a court of law to establish a deed from Theodore S. Weaver to herself, which she claimed had existed and had been lost or destroyed. Such proceedings were had in that suit that the final decree which was first entered therein enjoined Mrs.. Weaver from establishing her deed at law. Upon that decree being taken to the court of errors and appeals it was reversed, and that court found that, under the testimony and the law, this court must enter a decree dismissing the bill to- the end that Mrs. Weaver might proceed at law to establish her deed. This the court of chancery-then did; but upon that decree being taken to the court of errors and appeals that cqurt found that this court should not have dismissed the cross-bills, particularly that one filed by Mrs. Weaver, in which she asked to have the court of equity establish her deed, and therefore that decree was reversed and the parties came again before this court, and the sole issue then to be tried was whether or not, under Josephine T. Weaver’s cross-bill against Josephine M. Lake and George Weaver; the heirs-at-law of Theodore S. Weaver, the deed alleged to have been given by Theodore S. Weaver to Josephine T. Weaver in 1889 should be established. Whether or not this court was justified in going further than deciding that exact issue or not, I do not propose to determine because it would be improper to be determined in this suit. It certainly does not, it seems to me, lie in the mouth of this complainant to object to the fact that it went further, because what the court did was to go as far as it could in favor of the then complainants of whom the present complainant in this suit was one—in other words, what the court there did was-to say to Mrs. Weaver, "Yes, we will find that there did a deed exist, made by Theodore S. Weaver, to you, but since it appears that that deed was given to you because you had advanced money to him, equity requires that if the money which you advanced him is repaid to you, you should not stand upon that deed as an absolute conveyance to you, but should accept the money in lieu of the land, and give back the land.” Erom any point of view, this was a concession—an equitable concession, which the court imposed upon Josephine T. Weaver in favor of the complainants in that suit, and whether it should have done so or not, that decree must receive full faith and credit in this suit, and that is the decree in that suit, namely, that the conveyance was one made because of advances made by the mother, Josephine T. Weaver, to Theodore S. Weaver, and that equity required that she .should reeonvey if the amount of money which she had advanced to Theodore, with interest, was repaid to her.

In the suit at bar, Josephine M. Lake, individually, of course, is bound by that previous decree, and that eliminates all talk about her having any individual rights. Now, in so far as she claims as administratrix, she sets out that this deed was made, and that it was a mortgage—that is, that it was given to secure whatever sum of money her decedent owed to Josephine T. Weaver. But she does not prove it. There is not a scintilla of proof here upon the part of the complainant that this paper was anything else than what she charges it to be, namely, a deed. Therefore, if we stand upon the complainant’s case alone, that is to say, upon the proofs to sustain her bill, we find that she has wholly and absolutely failed to make out any case for equitable relief of anjr kind, as I see it.

What would have happened in this court if this complainant had proven that what was actually a deed in form was in this court in this suit to be treated as a mortgage, is quite beside the question. With that difficulty I am not confronted. There was not the slightest evidence in this case to prove that the paper-writing of 1889 was any other than it purported to be, or that any other effect should be given to it than what it is set out in the bill to be, namely, a quitclaim deed of all interest of Theodore S. Weaver in the lands described in it.

The only way in which the complainant seeks to show that the paper is not a deed and should not be given the effect of a deed is by reference to what took place in the suit of Josephine M. Lake and George Weaver, the heirs-at-law of Theodore S. Weaver, against Josephine T. Weaver. In that suit it was found that this deed, as between the parties to that suit, was one which could not stand as an absolute transfer if the amount of money found in that suit to be due between the parties to that suit were paid to Josephine T. Weaver—or, if you choose to phrase it differently, in that suit, as between the parties to that suit, it was found that this deed was a mortgage upon which there was a certain amount of money due. and the right was given to the complainants, if they so chose, to pay that amount of money and get the land.

.Fow, it seems to me perfectly clear that this complainant is on one or the other horn of the dilemma. If she says, “I allege that this deed was a mortgage,” she must prove it. Upon the most casual inspection of the pleadings and proofs it appears that she has not proven any such thing. She did not prove anything. If she says, “I do not have to prove it because it has already been determined,” she then appeals to a suit which either binds her and determines it for the purposes of this suit—in which case nothing further can be said on her behalf, because the amount is therein fixed, and no further inquiry will be allowed—or else it does not bind her and does not bind the other people, and is not relevant in her behalf at all. In other words, either there is an entire lack of proof on behalf of the complainant of any right of action whatever, and she must fail for that reason; or else, by appealing to the judgment and proceedings in the other cause she concedes that they are relevant to this suit, because they are res adjudicata, and if they are res adjudicata, of course the entire matter comprised in that judgment is settled as between the parties thereto and hereto.

If chat other suit is relevant to this suit in behalf of the complainant, it must be upon the theory that it is settled in that suit, as between her, this complainant, and Josephine T. Weaver, that that paper is not a deed but a mortgage.- The only way that it became settled was in the other suit. Therefore, we must find out what the judgment was in that other suit, and consider all of its elements as res adjudicata in this suit, and one of those elements undoubtedly was the amount which, in that suit, was ascertained to be due upon the paper considered as a mortgage.

Eor these reasons ( which I shall not amplify because I have stated them as clearly as I can), and which are either clearly dis-positive of the case or are not so because of some reason that I cannot comprehend, my conclusion is that this bill must be dismissed, and I shall so advise.

Mr. Crandall—And the plea sustained?

The Vice-Chancellor—You have heard what I said. I shall say no more than I have said. I shall dismiss the bill.


author: Leaming, V. C.

text:
    Eugene R. Colloty et al. v. Joseph Stein.
    [Submitted July 10th, 1912.
    Determined July 10th, 1912.]
    Suit does not lie to restrain defendant from trespassing upon or occupying land claimed by complainants until determination of the title to such lai^d in a pending action in ejectment; it appearing that no irreparable injury to complainants will result, and it not being claimed that defendants are unable to respond in damages.
    Hearing on return of order to show cause.
    The bill avers that complainants and defendant own adjoining tracts of land; that defendant has made claim to a portion of the land owned by complainants and has instituted in the supreme court an action of ejectment against complainants for the recovery of the land so claimed by him; that since-instituting the action of ejectment -defendant has commenced the erection of a building which extends over the boundary line and about twelve inches on the land owned by complainants and to which defendant claims title. The bill seeks an injunction to restrain defendant from further trespassing upon or occupying the land of complainants until the title to the property be determined in the pending action at law.
    At the return of an order to show cause for a preliminary injunction defendant has filed affidavits setting forth the title of defendant to the land which the partially constructed building occupies.

      Messrs. Bourgeois <£ Coulomb, for the complainants.

      Mr. Clarence L. Qoldenberg, for the defendant.
   Leaming, V. C.

Complainants urge that because an action of ejectment is pending to determine the legal title to the land on which defendant is now beginning the erection of a building this court should interfere and preserve the present status by enjoining defendant from further proceeding with the proposed work. That contention wholly overlooks the well-defined limitations to the jurisdiction of this court in controversies in which the basis of the bill is the interference by defendant with complainants' enjoyment of his legal estate in lands. While the bill seeks no more than the preservation of existing conditions, pending a determination of the legal title by a court of law, its real purpose is to restrain defendant during that period from trespassing on the land which both complainants and defendant claim to own. It is entirely clear that the suit can be regarded in no aspect other than as a suit for the single purpose of restraining a trespass on lands. The nature and quality of the relief sought is unchanged by the circumstance that the period of restraint is limited. In all such cases the jurisdiction of this court is strictly limited to instances in which the preventive writ is necessary to preclude irreparable damages. Beginning with West v. Walker, 3 N. J. Eq. (2 Gr. Ch.) 279, and extending to Ballentine v. Harrison, 37 N. J. Eq. (10 Stew.) 560, the adjudications in this state have been entirely uniform to that effect. In Ballentine v. Harrison, supra, Chief-Justice Beasley, speaking for the court of errors and appeals, says: “It will be observed that unless the imminence of irreparable damage be the test of the right of equitable cognizance over cases which involve simply legal rights, the result must be that such cognizance exists in every case of a continual invasion of the land of another. If a tortious taking and holding of real propert3r la3r the ground for such jurisdiction, then necessarily the equitable and the legal power to take such matters in charge is concurrent. Such a doctrine is unknown to the iaw; and the opposite doctrine is that which has always, in theory, at all events, been maintained in this state. Ho case can be found in the volumes of our reports that purports to hold that the mere taking possession of lands and holding them vi et armis will form a basis for the arrest of the doing of such wrong by the arm of equity. All the authorities cited in the brief of counsel from our own reports, with the exception of such as involve the act of railroad and similar corporations entering without right on lands owned by other persons, and which class rest upon a well-known principle peculiar to themselves, repudiate such a right of equitable jurisdiction.”

I know of no case in which the principles defined in Ballentine v. 'Harrison have been disregarded.

In the present case no irreparable injury can be sustained by complainants by reason of the trespass of which they complain. The acts complained of involve no destruction of the inheritance; defendants are not alleged to be unable to respond in damages, and-the law courts afford adequate means -for redress of grievances of the nature of those presented by the bill.

The present bill not only seeks an injunction against a trespass on .lands -which involves no irreparable injury to complainants, but the bill discloses on its face that the legal title to the lands, protection of which is sought, is in dispute, and the affidavits filed in behalf of defendant disclose that the dispute touching the title is of a substantial nature and involves legal questions only. While the bill does not seek a final adjudication by this court touching the title to the land, the circumstances stated render it peculiarly improper for this court to interfere except in a case of absolute necessity to prevent irreparable injury. Hart v. Leonard, 42 N. J. Eq. (15 Stew.) 416; Oulcalt v. Helme Company, 42 N. J. Eq. (15 Stew.) 665; Todd v. Staats, 60 N. J. Eq. (15 Dick.) 507.

I will’advise an order discharging the order to show cause.


text:
    Adelaide Bender v. John H. Dialogue, Jr., individually and as administrator of John H. Dialogue, deceased.
    [Submitted June 4th, 1912.
    Determined July 23d, 1912.]
    1. The irregularity of filing two pleas to the same part of a bill without leave of court, not being objected to, may be disregarded on hearing of their sufficiency.
    2. Pleas in bar to a bill, basing complainant’s’rights solely on fraud, to set aside a release and for discovery, are insufficient as raising immaterial issues, they not denying the fraud, but, in terms, being filed only to the part of the bill which does not charge fraud, and not denying the bill’s allegation of recent discovery of the fraud or statement of reason for failure to earlier discover it; the general denial of fraud in the answer not being available in support of the pleas on a hearing of their sufficiency.
    3. When a bill sets up a release which would be operative as a legal bar to the relief or discovery sought, and seeks to set aside or avoid the effect of such a release by averments of fraud in its procurement or other matters in avoidance of the bar, a plea which seeks to sustain the,release must affirmatively set forth such release so referred to in the bill and also deny the truth of that part of the bill which would, if true, be operative to avoid the legal bar. Such pleas are commonly classed as anomalous pleas, and must, as a rule, where fraud-is charged and discovery is sought, be accompanied by an answer in their support specifically answering such averments of the bill as impute fraud and making such discovery as the bill may require. Such an answer forms no part of the defence, but is a discovery of that evidence which the complainant has a right to require, as complainant is privileged to use such answer as evidence at the argument of the sufficiency of the plea and also at the hearing to determine the truth of the plea.

      Mr. Lewis Starr, for the complainant.

      Messrs. French & Richards, for the defendant.
   Leaming, V. C.

The present hearing is to determine the sufficiency of two pleas which have been filed by defendant to complainant’s bill.

The two pleas are filed to the same part of the bill without leave of court for that purpose. The established rules controlling pleas in equity not only forbid that practice, but require notice to an adversary before an order permitting two pleas to be filed to the same part of a bill will be made. See 1 Dan. Ch. Pl. & Pr. (6th Am. ed.) *607, *617, and notes. But as no objection has been made to the pleas on the grounds stated, it may be proper to here disregard that irregularity.

The amended bill seeks to set aside a deed and bill of sale wherein and whereby complainant, for a consideration agreed upon, released to her brother her share of her father’s estate. The sole ground upon which relief is sought is fraud practiced by defendant in the procurement of the release. hTo recovery is claimed or can be had under the amended bill as framed unless fraud, either actual or Constructive, is established. By the averments of the amended bill it is asserted that the fraud was not ■discovered by complainant until shortly before the bill was filed, and that the failure of its earlier discovery was by reason of confidence reposed in defendant as a brother, and his .fraudulent representations and concealment of the truth touching the estate, which estate was being administered by defendant at the time the release was made and the extent and value of which were alone known by defendant. The pleas are, by their terms, “pleas to the whole of the said amended bill, except so much thereof as charges this defendant with fraud.” The accompanying answer is, by its terms, an answer to “so much of said amended bill as chárges this defendant with fraud.” One plea states, by way of bar, that complainant has allowed nine years to transpire without complaint, and defendant has, in consequence, assumed risks and indebtedness of the ancestor’s estate and cannot now furnish “much of the information sought in said bill.” The other plea states, by way of bar, that the conveyance was made by complainant to defendant at a time when the estate was unsettled and heavily encumbered and largely involved in litigation and its value uncertain, and that complainant made said sale and conveyance after full deliberation more than nine years before said bill was filed for a consideration believed by defendant at the time to be adequate. The answer is to only so much of the bill as charges fraud and denies fraud generally.

It will be observed that the pleas do not deny the fraud charged by the bill, and are, by their terms, filed only to that part of the bill which does not charge fraud, and set forth the affirmative matter already referred to in bar. In testing the sufficiency of a plea all material averments of the bill which are not denied by the plea must be assumed to be true. 16 Gyc. @95. As these pleas do not ‘deny the fraud charged by the hill and, do not deny its recent discovery or the statements of the bill touching the reason for the failure of complainant to earlier discover the fraud, these averments of the bill must, for present purposes, be deemed admitted. Under such admissions, the affirmative matters set forth in the plea by way of avoidance manifestly afford no bar to the bill.

The theory of counsel in filing the pleas appears to have been that the general denial of fraud in the answer can he utilized in support of the pleas at the argument touching their sufficiency; upon that theory it is now urged that the affirmative matter set forth in the pleas afford a bar to recovery in the absence of fraud. It is entirely clear, however, that at a hearing touching the sufficiency o£ a plea to a hill charging fraud the denial, of fraud contained in an answer which may he filed in support of the plea cannot be considered as forming a part of or in any way aiding a plea which does not deny the fraud, and especially one which expressly states that it is not filed to that part of the bill which charges fraud. If defendant seeks, hv means of a plea, to sustain the legal bar afforded by the release which complainant has executed, that can only he accomplished by a plea framed in accordance with the rules which have been long established and uniformly recognized in cases of that nature. These rules may be briefly stated as follows: When a bill sets up a decree, release, award or other matter which would be operative as a legal bar to the relief or discovery sought and seeks to set aside or avoid the effect of such decree, release or other bar by averments of fraud in its procurement or other matters in avoidance of the bar, a plea wliieh seeks to sustain the decree, release or other bar must affirmatively set forth such decree, release or other bar so referred to in the bill, and also deny the truth of that part of the bill which would, if true, be operative to avoid the legal bam Such pleas are commonly classed as anomalous pleas, and must, as a rule, where fraud is charged and discovery is sought, be-accompanied by an answer in their support specifically answering such averments of the bill as impute fraud and making such discovery as the bill may require. Such an answer forms no part of the defence, but is a discovery of that evidence which the complainant has a right to require, as complainant is privileged to use such answer as evidence at the argument of the sufficiency of the plea, and also at a hearing to determine the truth of the plea. The extent to which a prayer in the bill for an answer not under oath may be operative to excuse a discovery is a matter-which need not be here considered. See Story Eq. Pl. (10th ed.) §§ 671, 685, and notes; Ibid. §§ 796, 803, 16 Cyc. 291.

As already stated, the pleas here in question aré filed to only that part of the bill which does not charge fraud. While a plea, in equity may be properly filed to a part of a bill, it can only be filed to a substantive part. All of the adjudicated cases necessarily proceed upon that assumption, for a plea can afford no bar to any part of the recovery sought unless it tenders a material issue. Story Eq. PI. (10th ed.) § 661. The rule, as stated in 16 Encycl. PI. ,& Pr. 604-, is: “If an issue raised by a plea in equity is not a material one, the plea will be overruled.” The pleas here in question disclaim a-purpose to answer any part of the bill which imputes fraud to defendant and pleads in bar matters which cannot be regarded as material with all of the averments of the bill touching fraud accepted as true.

I will advise an order overruling the pleas.


author: Leaking, V.- C.

text:
    West Jersey and Seashore Railroad Company v. Mayor and Common Council of Woodbury et al.
    [Submitted September 18th, 1912.
    Determined October 4th, 1912.]
    1. The ninth section of the complainant railroad company’s charter (P. L. 1858 p. 89) providing “that it shall be the duty of the said company to construct and keep in. repair good and sufficient bridges and passages over or under the said railroad where any public road shall intersect and cross the same, so that the passage of carriages, horses and cattle along the said road shall not be obstructed, and likewise when said railroad shall intersect farms or lands of any individual, to provide and keep in repair suitable and convenient wagon ways over or under said road,” relates to public -roads which existed at the time the complainant’s railroad was constructed, and does include highways opened at a subsequent time.
    2. With the charter provision above quoted understood as contemplating only such public roads as were then in existence when complainant’s railroad was constructed, the provisions of section 26 of the General Railroad act of 1903 (P. L. 1903 p. 659) are also without application.
    3. Evidence considered and—Meld, not to justify a finding- that a lane which existed prior to the construction of complainant’s railroad where the bridge in question stands was a public road, or that any statute imposes upon the railroad company the duty of maintenance of said bridge.
    4. Notwithstanding the fact that complainant railroad company owes no duty to maintain the bridge in question, a bill seeking mandatory relief compelling either the city or county, parties defendant, to strengthen the same to the end that it may be made of sufficient strength to support the traffic liable to pass over it, is not maintainable, the duty in that behalf being enforceable in a court of law.
    Final hearing on pleadings .and proofs.

      Messrs. GasTcill £ Gaslcill, for the complainant.

      Mr. Francis B. Davis, for the city of Woodbury.

      Mr. Jolin Boijd Avis, for the county of Gloucester.
   Leaking, V.- C.

The ninth section of the Charter act under which complainant railroad company is operating (P. L. 1858 p. 89) provides:

“That it shall be the duty of the said company to construct and keep in repair, good and sufficient bridges or passages over or under the said railroad where any public road shall intersect and cross the same, so that the passage of carriages, horses and'cattle along the said road shall not be obstructed, and likewise when said railroad shall intersect any farm or lands of any individual, to provide and keep in repair suitable and convenient wagon ways over or under said road.”

Under the theory upon which this suit has been submitted the primary question for present consideration is whether that section relates alone to public roads which existed at the time the railroad of complainant was constructed or whether it includes public highways opened at a subsequent time.

I am unable to reach the conclusion that this can be regarded in this court as an open question. In Morris Canal and Banking Co. v. State, 24 N. J. Law (4 Zab.) 62, a somewhat similar provision contained in the Charter act of the canal company was treated as a legislative provision contemplating a work about to be constructed and imposing upon the company no duty in relation to highways laid out across the canal after it should be constructed. In the subsequent case of Morris and Essex Railroad Co. v. Orange, 63 N. J. Law (34 Vr.) 252, it became necessary for the court to determine what compensation the railroad was entitled to receive as damages arising from laying out a highway across the railroad at grade. The Charter act of that company contained a provision of almost exactly the same terms as the one here in question. Two justices construed the provision as including highways laid across the railroad at any time, and on that ground determined that substantial damages should not be allowed to the company except for injuries not usually incident to the mere crossing of the railroad by a highway. With the provision there under consideration understood as imposing upon the company a statutory duty of maintenance of safe crossings where highways should thereafter be laid out across the railroad, it necessarily followed that no substantial compensation could be exacted by the company for expenses appropriately incident to ' such maintenance. The failure of the majority of the court to give recognition to the possible existence of such a statutory duty must, I think, be regarded as a repudiation of the views expressed •to that effect in the minority opinion referred to. In a still later ease before the same court (Marino v. Central Railroad Co., 69 N. J. Law (40 Vr.) 628), the latter part of a similar charter provision (that relating to intersected lands) was under consideration and was deemed to relate only to lands intersected by the railroad when the railroad right of way was acquired. With 'the charter provision above quoted understood as contemplating only such public roads as were then in existence, the provisions 'of section £6 of the General Railroad act of 1903 (P. L. 1903 p. 659) are also without application.' Prior to the construction of ‘complainant’s railroad a lane appears to have existed at about the point where the bridge in question now stands, but the evidence does not justify a finding that this lane was a public road. I -am unable to find justification for the claim that any statute imposes upon the railroad company the duty of maintenance of the bridge in question.

The right of way of the company at the point in controversy was acquired in the year 1854 by deed of conveyance from the ■owners of the land, and in the conveyance a covenant was in■serted whereby the company covenanted with its grantors to erect •and maintain a bridge for their benefit over the right of way so ■conveyed at a point designated in the deed of conveyance. The railroad was soon thereafter constructed and the bridge called for in the deed was erected by the company over the cut made by the Tailroad at that point. The evidence discloses that at that time a lane existed at or about the point where the bridge was constructed, but, as already stated, a finding that the lane was a public highway or more than a private way is clearly unjustified by the evidence. The bridge referred to appears to have stood until about the year 1875. In the year 1873, the city of Wood-bury passed an ordinance providing for the “laying out, opening, widening and extending Hunter street from Broad street to Ever•green avenue.” The bridge which had been constructed by the company appears to have been in the line of Hunter street as defined by this ordinance. It is conceded that in the several pro■ceedings taken by the city in laying out Hunter street in conformity to the ordinance referred to complainant company was not a party, and that no proceedings have ever been taken to condemn or lay out a public highway across the right of way of the company. October 26th, 1875, the street committee of Wood-bury reported to the common council of that city that the bridge at Hunter street had become unsafe for travel across it, and that they had had the street boarded up at that point to prevent accidents. ^Negotiations were at that'time in progress between the city and complainant company looking to the erection of a new bridge; in those negotiations both the city and the company declined to recognize an obligation to build or maintain a new bridge, but the company offered to contribute a specified amount to the cost if the city would assume that burden. These negotiations were continued until March 21st, 1876, on which date the negotiations appear to have been permanently discontinued by reason of the inability of the contending parties to reach any agreement. In 1877 the board of freeholders of Gloucester county built a bridge in the place of the one that had been theretofore built by the company and closed by the city; that bridge was maintained by the county until the year 1885 when the county removed it and built and has since maintained the present structure. By reason of the increased burdens to which bridges are in recent years subjected, the present structure is now admittedly unsafe for the traffic that is liable to use it and must be ■strengthened or rebuilt. Erom the foregoing it will be observed that no public highway has at any time been laid out, over ox ■across the railroad of complainant company. It is urged, however, that the long use by the public of the two successive bridges which have been built and maintained by the county has been operative to establish a public highway at the point where the present bridge is located. If that claim be conceded, it is apparent, from what has already been stated, that such public highway came into existence since the railroad of complainant company was constructed- But it will also be observed that the attitude of complainant company has continuously been that it -denied liability to accommodate or provide for public travel over ■or across its line at the point in question, but that it would permit such travel over its line on any suitable overhead structure that the city or county would erect and maintain for that purpose. This attitude of the company, in both of its permissive and conditional aspects, has been clearly defined and understood during all of the period over which any prescriptive right can be urged. Whether such permissive and conditional use is so destructive of the idea of an adverse or hostile user and inconsistent with the idea of an acquiescence of a nature to carry with it the intention of the company to subject the space spanned by the bridge in question to public use as a highway, it is unnecessary to here determine. See 13 Cyc. 478; Wood v. Hurd, 34 N. J. Law (5 Vr.) 37; Riverside v. Pennsylvania Railroad Co., 74 N. J. Law (45 Vr.) 476, 479. It is, however, impossible to adopt a view that leads to the conclusion that the voluntary and permissive assumption of the burden of maintenance of this bridge by the public authorities of Gloucester county, under the circumstances stated, has become operative to impose that burden upon the railroad company.

The bill filed by the railroad company seeks mandatory relief compelling either the city or county to strengthen the bridge in question to the end that it may be made of sufficient strength to support the traffic that is liable to pass over it. It is conceded by all parties to the controversy that the bridge is not now strong enough to sustain heavy loads and a cross-bill filed by the county seeks similar mandatory relief against the railroad company. Notwithstanding the views which I entertain to the effect that the railroad company owes no duty to maintain this bridge, I am still unable to find justification for a decree requiring either the city or county to make the necessary repairs. Any duty that may exist on the part of either the city or county to maintain the bridge in question in a condition safe for travel is purely a public duty to be performed by its proper public officials. Courts of law are clothed with adequate powers for the enforcement of such duties. In cases of that nature, mandatory relief cannot be had in a court of equity. New York and Greenwood Lake Railroad Co. v. Township of Montclair, 47 N. J. Eq. (2 Dick.) 591.

The only possible element of equitable jurisdiction which T have been able to find in this suit, under the issues as framed, arises from the necessity of immediate protection of the traveling public. That condition, however, has been met by stipulation of the parties.

I am obliged to advise an order denying the relief claimed in both the bill and cross-bill.


author: Howell, V. C.

text:
    Marcus Goodbody et al. v. Ordener J. Delaney et al.
    [Submitted May 14th, 1912.
    Decided June 14th, 1912.]
    1. Where a replication is filed without objecting to the answer, it will he assumed that defendant answered fully all of the allegations of the bill in accordance with the course and practice of equity.
    2. A suit by stockholders on their own behalf and on behalf of all other stockholders similarly situated on a cause of action in favor • of the corporation is a suit on behalf oof the corporation, and a decree adjudicates the rights of the corporation, and, after the institution of the suit, no other stockholder may prosecute a similar suit in his own-name for the same cause of action.
    , 3. Where defendant fully answered the bill and claimed the benefit of the facts as if demurred to, the demurrer, so far as it relies on facts stated in the bill which have been answered, must be considered as overruled by the answer, and the questions of law raised by it must be .determined at the final hearing on the facts disclosed by the evidence in support of the answer.
    4. Where the disqualification of a stockholder, suing on his own behalf and on behalf of all other stockholders similarly situated on a cause of action in favor of the corporation, appears on the face of the record, the question may be raised by demurrer, but, where it does not so appear, it can only-be raised by answer or by a proper amendment to an answer already filed,
    5. Stockholders brought a suit, on their own behalf and on behalf of others similarly situated, on a cause of action in favor of the corporation. Defendant answered the bill fully and claimed the benefit of the facts as if demurred to. Subsequently other stockholders, claiming to be similarly situated with complainants, were admitted as parties complainant, and defendant demurred to the bill as prosecuted by such other stockholders.—Held, that the answer overruled the demurrer and it must be suppressed for irregularity.
    G. A defendant in an action by stockholders, suing on a cause of action in favor of the corporation, may question the standing of other stockholders admitted as complainants after the making of the issues between the original parties, and the omission in the order admitting such other stockholders to give defendant such right does not prevent his questioning their qualifications by .way of amendment to the answer, but the amendment must be strictly confined to the qualifications of such other stockholders.

      Mr. John B. Humphreys, for the, motion.

      Mr. Samuel If. Richards, contra.

   Howell, V. C.

Tin's is a motion to suppress a demurrer on the ground of irregularity. The original suit Evas brought by Marcus Good-body and William U. Goodbody as stockholders of the Fisheries Company for the purpose of litigating a cause of action which they claim in their bill runs in favor of the company. The suit was brought not only on their own behalf but on behalf of all other stockholders similarly situated with them who might come .in and contribute to the expenses of the suit.

'The principal defendant, or the defendant against whom the principal proceeding is, Delaney, chose to answer the bill, and inasmuch as a replication was filed without objection to the answer, it will be assumed that he answered fully all of the allegations in accordance with the course and practice of this court. The cause was then referred to a vice-chancellor; considerable testimony has been taken before him on the part of the complainant, in fact they say that they have nearly completed their principal case. At this point fifty-two persons claiming to be stockholders of the company, and to be similarly situated as such stockholders with the complainants, applied for leave to be admitted as parties complainant to the suit. The application was made, heard and granted ex parte, and an order was made admitting them as parties complainant. Among the parties who were thus admitted were Shepard, Cauda, Goodkind and Aron.

A motion was made to discharge the order admitting these fifty-two complainants as improvidently made> on the ground that the petition and other moving papers failed to show that the}r had authorized the application therefor. This motion was denied, whereupon the defendant Delaney filed a demurrer to the bill as prosecuted by Shepard, Canda, Goodkind and Aron, ifiour of the newly-admitted defendants.

Delaney, by his answer, had prayed that he might have the benefit of the'facts set out in such answer by way of.demurrer for reasons stated in that behalf in the answer. Eor causes of demurrer to the hill as exhibited by Shepard, Canda, Goodkind and Aron, he alleges the same causes that lie had previously set out in his answer. The demurrer w.as filed without the consent of the complainant or the leave of the court, and motion is now made to suppress it for irregularity or in the alternative to strike it out as frivolous. At the time of the filing of the demurrer it was noticed for argument and duly set down for argument at the present May term of the court. The present motion was noticed and argued prior to the opening of the term.

The decision of this motion requires some consideration of the character and scope of the original suit. As has been stated, it was brought by stockholders not only on their own behalf, but also on behalf of all other stockholders .who might be similarly situated with them, upon a cause of action running in favor of the corporation against the defendants, and therefore belongs to that class of suits which are known as representative suits. The corporation and all the stockholders who are affected b}7 the cause of action as the complainants are, are represented in the suit by the complainants. They are proceeding in behalf of the corporation only because the corporation either refuses to sue or because the directors and officers who are charged by the bill with fraud upon the company are disqualified thereby from conducting the litigation. The stockholders do not sue in their own right, but in the right of the corporation and the use of the names of stockholders as complainants is mere procedure and belongs not to the substantitive law of the ease, hut to the pursuit of the remedy in favor of the corporation. Every stockholder who stands in the same relation to the alleged fraudulent action with the complainants is entitled to aid in the prosecution of the suit if he chooses. After a suit of this character shall have been begun, no other stockholder will be permitted to prosecute a similar suit in his own name for the same cause of action, but subsequent suits will be stayed until there shall have been a decree in the prior suit; and it is quite possible that if such similar suit were brought in the same court with the prior suit a plea of former action pending would he sustained. The only recourse, fherefore, which the other stockholders have, is to unite under the invitation of the complainant in aiding the prosecution of the first suit, for the reason that there can be but one decree against the defendants if the.complainants are successful. Such decree will provide for the recovery, not by the complainants, but by the corporation, of the moneys which the complainants may be able to prove under the allegations of the bill to be owing by the defendants to the corporation. The suit therefore in contemplation of equity is a suit in favor of the corporation, with the corporation and its innocent stockholders ranged on one side and the guilty officers and directors ranged on the other. The use of the name of any individual stockholder is a mere matter of form. This reduces the litigation to its simplest elements and points out a road over which the court must travel in deciding the present motion.

It will be observed that the defendants to the bill as originally filed interposed an answer to the facts therein stated. It must be assumed that they answered those facts fully and that they waived all the less favored defences by way of plea and demurrer. It is true that they claim the same benéfit of the facts as if they had demurred, but a demurrer in the answer can only be availed of at the final hearing, and in so far. as it relies upon facts stated in the bill which have been answered, such a demurrer must be considered as overruled by the answer, and the questions of law raised by it must be determined upon the facts disclosed by the evidence adduced in support of the answer.

The principles governing the administration of the law in representative suits are well illustrated by the following cases: In Willoughby v. Chicago Junction Railways Co., 50 N. J. Eq. (5 Dick.) 655, Vice-Chancellor Green discussed the subject. There Ellerman brought a stockholders’ suit in this court to enjoin the consummation of an agreement made by his company, in which the company and the other defendants appeared and answered, and the cause was regularly heard and decided. Ellerman v. Chicago Junction Railways, 49 N. J. Eq. (4 Dick.) 217. Willoughby, another stockholder in the same company, after-wards filed a bill to prevent carrying into effect what was practically the same agreement. It was held that in the absence of fraud or collusion by Ellerman a decision of the question in issue in his suit was conclusive as to all the similar questions raised in the Willoughby suit. The vice-chancellor says: /‘Actions of the class to which the Ellerman and Willoughby suits belong are sui generis, in this that the complainant does not prosecute in his own right. A stockholder as such does not have a legal or equitable estate in the corporate property; his only right of property is to a proportionate share of the profits of the business while the company is in operation, and to a proportionate share of the net assets on its dissolution. Unauthorized dealing with the franchises or funds of the corporation directly injure it as a legal entity; it is the franchises of the corporation which are to be misused, the funds of the corporation which are to be misappropriated, and the corporation therefore is the party to be injured,.and should itself seek redress. * * * The Ellerman and Willoughby suits belong to that class of cases in which the corporation itself is directly injured and is primarily interested and should itself institute and maintain an action for relief, in which the remedy to be obtained, whether pecuniary or otherwise, is for its benefit and belongs to it alone. The stockholder in such cases has no standing in the court as a party except on the refusal, either express' or implied, of the corporation itself to prosecute. * * * Erom the very form and nature of these suits each stockholder must be considered as represented, for if he is in sympathy with the complainant, he may' become party complainant by application to the court. If he is in sympathy with the threatened action of the company, he is represented by and in the corporation, which is a necessary party to the suit.” The decision in this case was expressly affirmed by' the court of errors and appeals in the case of Appleton v. American Malting Co., 65 N. J. Eq. (20 Dick.) 375. That was a suit by a stockholder on behalf of himself and other stockholders similarly situated to compel the directors of the company to restore to the company moneys unlawfully paid out in dividends. The complainants had received their share'of the dividends so illegally declared, and it was held that although they did participate in the unlawful dividends, they might still maintain their suit without offering to pay back the dividends so received by them. 'The principle is referred to in Fort Wayne Electric Corporation v. Franklin Electric Light Co., 57 N. J. Eq. (19 Dick.) 16, and in Ditlman v. Distilling Company of America, 64 N. J. Eq. (19 Dick.) 537. Thé same rule prevails in New York. In Brinkerhoff v. Bostwick, 99 N. Y. 185, the ‘ original complainant was given the right at any time before judgment to settle his claim and discontinue his action, but it was held that upon prosecution to judgment such judgment was for the benefit of all the stockholders, and that the original complainant ceased to have control over it. The same doctrine was announced in Hirshfeld v. Fitzgerald, 157 N. Y. 166, and the general scope and character of this class of suits was commented on in the opinion of Alexander v. Donohoe, 148 N. Y. 203. Mr. Justice Earl says: “Suing as a stockholder, the .plaintiff’s right of action is a derivative one; he sues not primarily in his own right, but in the right of the'corporation. The wrongs of which he complains are wrongs to the corporation; they were not aimed at him and did not involve his personal, individual rights; he suffers as a member of the corporation, and it is the party to sue for and recover damages for the wrongs or equitable relief against the frauds alleged; the complaint is that all the alleged frauds, running through twelve years, in the end culminated in the final wrong and injury to the corporation, and for relie £ on account of such wrong and injury, a stockholder could onl} sue in case the corporation upon his demand, or what is equivalent thereto, refused or neglected to sue.” Citing Hawes v. Oakland, 104 U. S. 450.

A very well-considered case is Hearst v. Putman Mining Co., 28 Utah 184; 77 Pac. Rep. 753; 107 Am. St. Rep. 698. The opinion contains an elaboration of the doctrine that when a representative suit is prosecuted to judgment it binds all the stockholders of the corporation, as they are estopped from banging other representative suits for the same cause of action. In Burland v. Earle (1902), A. C. 83, 71 L. J. P. C. J, the Judicial Committee of the Privy Council held that the fact that a suit is brought in the name of a shareholder rather than in the name of the company'' is “mere matter óf procedure in order to give a remedy for a wrong which would otherwise escape redress, and it is obvious that in such an action the plaintiffs cannot liaye a larger right to relief than the company jtself would have if it were plaintiff, and cannot complain of acts which are violated if done with the approval of the majority of the shareholders or are capable of being confirmed by the majority.” See also Pom. Eq. Jur. § 1095; Cook Corp. § 748.

It therefore appears to make no difference whether the suit is prosecuted by one or more or by all the stockholders. There can be but one adjudication on.the rights of the corporation, j It is probably true that a stockholder can disqualify himself / from acting as a prosecutor of a representative suit, and that-if such disqualification appears upon the face of the record the question can be raised by demurrer, but if it does not appear upon the face of the record it can only be raised by answer or by a proper amendment to an answer already filed, and such I conceive to be the situation in this ease. The defendant Delaney has answered the original bill, and, under w.ell-known rules he may not likewise demur to the same bill. His answer overrules his demurrer, and he must go to final hearing on the issues made up. If the fact which disqualifies a stockholder from becoming a.prosecutor does not appear upon the face of the record it can be introduced byr way of amendment to the answer already on file.

The defendant should be permitted to have an opportunity to question the standing of complainants as stockholders, who come into the suit after the issues are made up between the original parties, and it probably would be safer to tiiake provision therefor in the order admitting them as complainants. Such provision was not made in the order in this case, but this omission ought not to stand in the way of questioning their qualifications by a proper proceeding, and such proper proceeding seems to me to be by way of amendment to the answer on file; but such, amendment must be strictly confined to questioning the qualification of the four prosecutors against whose complaint the demurrer is leveled.

So far as the present motion is concerned the case of Atkinson v. Hanway, 1 Cox Eq. Cas. 360, seems to me authority for suppressing the pleading.

Let an order he entered suppressing the demurrer for irregularity and allowing the defendants fifteen days in which to amend their answer as is above indicated.


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    William Rosenstein v. Horace B. Burr.
    [Decided June 14th, 1912.]
    A defendant in a suit for specific performance of a contract for the sale of land, who has previously brought an unsuccessful suit to cancel the contract on the ground that it was invalid for fraud, and because executed on Sunday, is estopped by the decree holding the contract valid from defending the suit for specific-performance on the ground that the contract was invalid on other grounds than those specified in the first suit.

      Mr. Thomas P. Fay, for the complainant.

      Mr. William M. Seuferi and Mr. diarios W. S. Parker, for the defendant.
   Howell, V. C.

On July 22d, 1907, the defendant, Burr, was the owner of a tract of land at Oceanport which the complainant desired to purchase. The complainant sent Fivison, his agent, to Burr, the defendant, to negotiate for the purchase. Fivison gave Burr a check for $200 and took from him an agreement of which the following is a copy:

“Received from Mr. William Rosenstein a check for $200.00 on purchase price of my farm at Oceanport and a check is to be forwarded to me on Tuesday for 300, or more, making in all Rive hundred dollars, balance of 3000 to be paid on or before October the 1st, 1907. 3000 to remain on bond and Mortgage with privilege to pay off at any time at 5 per cent, and I to pay the taxes and insurance, purchase price six thousand and five hundred dollars, everything on the place to go in purchase price. Except furniture all tools horse, cow, chickens, wagons and farming utensils if said William Rosenstein fails to pay the Three thousand in on or before October the first 1907 he forfeit said five hundred he .paid and gives up possession.
“Money possession to be given July 25, 1907.
, “H. B. Bube.
“Witnessed by Henry L. Nivison.
“Dated July 22, 1907,”

_This is claimed by the complainant to be a contract for the sale of lands, and he files his bill against the .defendant for the specific performance thereof.

On September 18th, 1907, before the time for the performance of the contract had arrived, Burr filed a bill in this court which prayed for the cancellation of the said instrument on the ground, first, that it had been obtained from him by fraud, and second, that.it was executed in Connecticut on Sunday and that it was void because violative of the Connecticut Sunday laws. An issue was made which was heard before this court in 1908. It was held that no fraud was shown and that there was no evidence of violation of the Connecticut Sunday law, and the bill was therefore dismissed. Burr v. Nivison, 74 N. J. Eq. (4 Buch.) 320. An appeal was taken from this decree, which was heard and decided in 1909. The decree dismissing the bill was affirmed. Burr v. Nivison, 75 N. J. Eq. (5 Buch.) 241. This court held that Mvison was the agent of Burr in the transaction. The appellate court held that Mvison was the agent of Bosenstein. The record of the first suit was made evidence in this suit by the stipulation of counsel, and it will, therefore, be assumed throughout that Mvison was the agent of Eosenstein.

The bill in the specific performance ease alleges the so-called agreement and a tender of the purchase price, and prays that the defendant may be required to convey the premises in pursuance of the terms of the agreement. Two defences are interposed: one is that the agreement relied upon is invalid for the reason that its terms were rejected by Burr before thejr were or could have been accepted by Eosenstein;. the other is that there was a stipulation that the agreement should not be binding on Burr until it should have been made the subject-matter of a formal document to be drawn by a scrivener and formally executed. Neither of these defences appears in the answer; they were developed at the hearing. The answer coniines itself to a denial of the due execution of the so-called agreement and of the tenders alleged by the bill.

The defences now interposed aqopear to be an after-thought devised for the purpose of evading the prayer of the bill. When the first suit was brought to set aside the so-called agreement the facts on which these defences are based existed and could have been used by Burr as affirmative weapons of attack. In addition to his allegations of fraud and violation of law he might have added the matters on which he now relies; they are entirely consistent with the causes that he did allege and they tended toward the result for which he then prayed. It is the duty of one who brings a suit to include in it every cause of action which is consistent with the general purpose of his bill, to put all his grounds of action in one complaint. In Fourniquet v. Perkins, 7 How. 160, it was held that a judgment in a district court being generally for the defendant must be supposed to covsr the whole casé and not to have rested upon only a branch óf it, viz., a release which was pleaded by the defendant; and that where a bill was filed in the circuit court by the same petitioners against the same -defendant it was correct for that court to consider the question as res adjudicóla. And in Northern Pacific Railroad Co. v. Slaght, 205 U. S. 122, the court said: "Although there may be very different claims for the same thing there can be only one right of property in it ; therefore, when a cause’of action has resulted in favor of the defendant and plaintiff claims the property in a certain thing, thcye can be no other action maintained against the same party for the -same property, for that would be to renew the question already decided; for the single question in litigation was whether the property belonged to the plaintiff or not; and it is of no importance that the plaintiff failed to set- up all his rights upon which his cause of action could have been maintained; it is sufficient that it might have been litigated.” To-the same effect is United States v. Cal. & O. Land Co., 192 U. S. 355. There a decree was rendered upon a bill in equity-brought under an act of congress to have patents for land declared void and forfeited, and to establish the title of the United-States to the land. This was held to be a bar to a subsequent, bill brought against the same defendants to recover the same-land, on the ground that it was excepted from' the original grant as an Indian reservation. Speaking of the two suits, the court said: “The best that can be said, apart from the act just quoted,, to distinguish the two suits, is that now the United States puts forward a new ground for its prayer. Formerly it sought to-avoid the patents by way of forfeiture. How it seeks the same-conclusion by a different means—that is to say, by evidence that the lands originally were excepted from the grant. But in this as in the former suit, it seeks to establish its own title to the-fee.” See, also, Beloit v. Morgan, 7 Wall. 619. The decision of the case, therefore, appears to rest upon the principles which control the action of the court in- relation to res adjudícala. It was held by the supreme court of the United States in the-leading case of Cromwell v. Sac County, 94 U. S. 351, that a judgment was a finality as to the claim or demand in controversy, concluding parties and those in privity with them not only as to every matter which was offered and received to-sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose;. and it cites the case of a judgment rendered upon a promissory note which is conclusive as to the validity of the instrument and the amount due upon it, although it might be subsequently alleged that perfect defences actually existed of which no proof' was offered, such as forgery, want of consideration or payment; but it was held in the same case that there was a difference between the effect of the former judgment as a bar or estoppel' against the prosecution of a second action upon the same claim- or demand and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the first case> the judgment is an absolute bar; in the second -case, it operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered.

This case has been followed in this state (Paterson v. Baker, 51 N. J. Eq. (6 Dick.) 49; Clark Thread Co. v. William Clark Co., 55 N. J. Eq. (10 Dick.) 658; Mercer County Traction Co. v. United New Jersey Railroad and Canal Co., 64 N. J. Eq. (19 Dick.) 588) and may be considered as settled law in this court. The converse of the proposition to be worked out in this case was'decided in New York Life Insurance Co. v. Bangs, 13 Otto 780. There an action at law was brought against the life insurance company on policies of life insurance in which the plaintiff recovered. Subsequently the company brought-suit in equity to set aside the policies on the ground of fraud to which the former recovery was pleaded as a defence. The court said: “The judgment in the action at law was a bar to this suit. Its recovery concluded all matters which might have been urged as ¡a defence to the policies; a fraudulent purpose in procuring them subsequently carried into execution would have been a good defence. It was in fact originally pleaded and afterwards withdrawn; its withdrawal did not authorize a suit in another form for its establishment against the demand of the plaintiff. When an action at. law is brought upon a contract, the defendant denying its obligation either from payment or release or any other matter affecting its original validity or subsequent discharge, must present his defence for consideration. A recovery is an answer to all future assertions of the invalidity of the contract by reason of any admissible matter which might have been -offered' to defeat the action/’ These principles apply directly to the case in hand/ In the former suit the issue was whether the so-called contract was valid. Two grounds of invalidity were asserted; two further grounds of invalidity existed but were not alleged and are now made the basis of a second attack upon the validity of the contract. It is quite manifest that the question .now raised was raised and decided adversely to' the present defendant in the former suit, and he therefore cannot have the question relitigated in this proceeding. He is bound by the decree' in the former suit.

Besides, the parties ought not to be given the opportunity to' split up their causes of action or their defences and attempt to-hold them in reserve for purposes of attack or defence in future litigation, for the reason that it is to the interest of the state-that there should be an end to litigation.

Upon these considerations I am compelled to reach the conclusion that the defendant has had his day in court and must make a conveyance in accordance with the terms of his contract.

I will advise a decree in accordance with these views.