author: Garrison, Y. C.

text:
    The State, ex rel. Johanna Gehrmann, v. George Osborne, warden.
    [Decided December 6th, 1911.]
    1. Under 2 Gen. Seat. 1895 p. 1622 § 2, providing that persons committed or detained under a final judgment of any competent tribunal of civil or criminal jurisdiction shall not be entitled to prosecute a writ of habeas corpus, one claiming that she was imprisoned under a judgment which the court had no jurisdiction to pronounce was entitled to review by habeas corpus.

    2. Where accused pleaded nolo contendere, and sentence was postponed, she was in no different situation, as regards her right to review by habeas corpus, than she would have been, had she been convicted on a trial, or had pleaded guilty.
    3. P. L. 1S9S p. 885 § 55, as amended by P. h. 1908 p. 1/29, provides that the court which has sentenced a prisoner maj', on application during the term, open and vacate the same and grant a new trial and discharge the deiVadant on bail, or may, on its own motion, open or vacate the judgment and resentence defendant, and discharge him from custody on bail, pending such resentence, provided that the court shall not have power to open and vacate any judgment entered on any conviction for a high misdemeanor after the term has expired at which the judgment was entered.—Held, that such act did not apply to a ease where, after accused had pleaded nolo contendere, sentence was postponed.
    4. On conviction of a person accused of crime, judgment need not necessarily be pronounced at the teim at which the conviction is had.
    5. The. term “suspended sentence,” as used in criminal law, refers to the suspension of the execution of a sentence already imposed, and not correctly to the suspending of sentence.
    0. In the absence of statute or objection, the courts have power to suspend the sentencing of a convicted person, and at any time thereafter, either before or after the term, to cause accused to be brought before it and impose such sentence as would have been proper immediately after the conviction.
    7. Jurisdiction of a court to suspend the sentencing of a person convicted of an offence and to thereafter impose sentence, either before or after the term, was not taken away by P. L. 1900 p. 889, repealed by P. L. 1900 p. .LO.'i ch. V/, and re-enacted by chapter 75, page 104 of the laws of that year, providing a system of probation in the punishment of criminals.
    .S. Error of any sort in imposing a sentence on accused, or abuse of discretion amounting to legal error, can only be corrected by writ of error, and is not reviewable on a writ of habeas corpus.

    Tliis is a hearing upon a writ of habeas corpus issued by me under the statute. The petition of Johanna G-ehrmann set forth that she was imprisoned at the state prison in Trenton; that the cause or pretence of her confinement was a commitment issued out of the court of quarter sessions of the county of Hudson, a copy of which was annexed, and that the imprisonment was illegal because the said court had no jurisdiction to make the judgment contained in the commitment, because there was a plea of non vult entered on the 28th of April, 1909, for a high misdemeanor, sentence was suspended, and costs were taxed; that thereafter, after the term at which the said plea of non vult had been made and judgment pronounced thereon, and on the 21st day of September, 1911, the said court changed the said judgment to imprisonment for a period of five years, which it had no power to do under the statute.

      The warden of the state prison made return to the writ, setting forth that the prisoner was detained in his custody by virtue of a warrant issued out of the court of quarter sessions of the peace (sic) of the county of Hudson, which said warrant he gives as follows:
    “In the State oe New Jersey i Sur Indictment No 3, April ■vs. I 'Term, 1909, for Johanna Gehrmann. [ Conviction of Abortion.
    “On motion of the prosecutor of the pleas the court ordered the sheriff to set the defendant to the bar to receive her sentence, and she being accordingly set to the bar, the court did thereupon order and adjudge that the defendant Johanna Gehrmann be imprisoned in the state prison of this state for the term of five (f>) years at hard labor upon this conviction, that she pay the costs of this prosecution, and that she be further imprisoned from and after the expiration of the said term of five (5) years until the said costs of this prosecution are paid.”
    The prisoner then traversed the return, setting forth that she should not be detained by reason of anything in the warrant alleged, because the said warrant of commitment was void as the said court had no jurisdiction to make the same, setting forth that the said Johanna Gehrmann, on the 14th of June, 1909, being indicted for a high misdemeanor, pleaded non vult, and on the 17th of June, 1909, judgment was given against her that sentence be suspended, and thereafter, on the 1st of April, 1910, costs were taxed against her, and thereafter, on the 21st of April, 1911, a new judgment was pronounced against the said Johanna Gehrmann, as set forth in the warrant of commitment. And the petitioner alleged that by the law the said court was without jurisdiction to pronounce the said judgment of September 21st, 1911, both by reason of the common law and by reason of the statute entitled “An act relating to courts having criminal jurisdiction and regulating public proceedings in criminal cases” (Rev. 1898 p. 886 § 55), and the amendment thereto (P. L. 1908 p. 429).

    Notice was served upon the prosecutor of the pleas of the county of Hudson, in accordance with the practice, and on the 6th of November, 1911, the attorney of the petitioner and the prosecutor entered into a stipulation that the paper then filed contained a true copy of the record of the court of quarter sessions in the matter of the State y. Johanna Gehrmann. Said stipulated- facts, as set forth in the annexed paper, were as follows:
    “The State -v 32 S vs. I Indictment Apr. 09 Johanna Gehrmann. j Abortion.
    “April 28, 1909, the defendant Johanna Gehrmann being-charged pleads not guilty, and she and her bail, Arthur W. Hilchner, 345 Clinton ave., West. Hoboken, enters with a recognizance in the sum of fifteen hundred dollars, each conditioned 1909 that defendant appear from day to da.y for trial.
    June 1 “Case called and put off.
    June 14 “Deft. Johanna Gehrmann being placed to the bar retracts plea. “Non vult. Bail continued for sentence.
    June 17 “Defendant Johanna Gehrmann, being placed to the bar, sentence was postponed.
    1911 “Sentence by court is hereby ordered revoked and deft, is Aug. 9 ordered held for re-sen-tence.
    Sept. 21 “The deft, being placed to the bar is sentenced to be confined-in state prison at hard labor for a period of five years, and thence until costs of prosecution are paid.
    “It is admitted that the clerk of the court has taxed the costs up to and including the date of the postponed sentence, and that the record page is marked ‘Settlement April 1, 1910, $48.00. Costs taxed.’ ”•
    It does not appear that the court made any judgment or order for the taxation or payment of costs, excepting in the judgment of September 21st, 1911; and there is, therefore, nothing in the point urged by the petitioner that there was any judgment for costs against her prior to the judgment of September 21st, 1911.

      Mr. Alexander Simpson and Mr.-1. Faerber Goldenhorn, for the petitioner.

      Mr. George T. Vickers, assistant prosecutor of the pleas, contra.

   Garrison, Y. C.

(after stating facts).

The questions presented are of importance not only to the prisoner but to the public, and I have given the matter much time and consideration.

The first question, of course, is whether a proper case is presented for the application of the jurisdiction exercisable under the writ of habeas corpus. It is familiar law that a writ of habeas corpus is not properly usable to take the place of a writ of error. Our statute concerning habeas corpus specifically provides (Gen. Stat. p. 1622 § 2)—

“that the following persons shall not be entitled to prosecute such writ: * * * II. Persons committed or detained by virtue of the final judgment or decree of any competent • tribunal of civil or criminal jurisdic tion * *

It is not suggested that the court of quarter sessions was not a competent tribunal of criminal jurisdiction, that it had not specific jurisdiction with respect to the crime of abortion, nor that the judgment which it rendered, standing by itself, was not a proper judgment and fully within the jurisdiction of the court.

It is alleged, on behalf of the prisoner, that the judgment was invalid—first, because the court of quarter sessions had no further power over the petitioner after sentence was postponed; second, that the conviction in this case, being for a high misdemeanor, and a term having passed at which the sentence was postponed, the court could not, in view of the act of 1898 (chapter 237, section 55, page 885), and the amendment thereto (P. L. 1908 p. 429), open and vacate that judgment and resentence the defendant.

It will thus be seen that the petitioner justifies her use of the writ of habeas corpus, not by alleging an error committed by the trial court which would require the use of a writ of error to obtain correction thereof, but by alleging that the judgment or sentence was invalid, and that the court had no jurisdiction at the time that it pronounced judgment or sentence to pronounce the same.

If she sustains this contention, it would seem, under the authorities in this state, that she is entitled to the writ. Whether she sustains the same can only be determined by a careful consideration of the facts and the law applicable thereto.

Mr. Justice Swayze, in In re Marlow, 75 N. J. Law (46 Vr.) 400 (at p. 402), after citing the provision of the Habeas Corpus act, to which I have alluded, and calling attention to the fact that the final judgment of the "competent tribunal” there spoken of obviously applies only to valid legal judgments, said (concerning the power of review on habeas corpus), "that such a review can be had where there was a lack of jurisdiction in the trial court is not doubted. The difficult question always is to distinguish between a lack of jurisdiction to pronounce the particular judgment and a mere error in law or fact to be redressed by writ of error in the one case and by motion (taking the place of the old writ of error coram nobis) in the other case,” calling attention by citation to many authorities.

If, however, the insistence of the petitioner is that the judgment of the competent tribunal of criminal jurisdiction was invalid, direct authority is found for her use of the writ in the cases of State v. Gray (Supreme Court, 1875), 37 N. J. Law (8 Vr.) 368; State v. Addy (Supreme Court, 1881), 43 N. J. Law (14 Vr.) 113, and In re Marlow, supra, and in the following authorities, which may be consulted by one who desires a more extended consideration of the whole subject: Clifford v. Heller (Supreme Court, 1899), 63 N. J. Law (34 Vr.) 105; 57 L. R. A. 312, and notes; Spell. Inj. Ex. Rem. (2d ed.) §§ 1202, 1206, 1211, 1215, 1216; Ex Parte Parks, 93 U. S. 18; 23 L. Ed. 787 (1876), and see cases and notes in 11 L. R. A. 694; 14 L. R. A. 128; 38 L. R. A. 675; 48 L. R. A. 220; 56 L. R. A. 513 (at p. 539); 13 L. R. A. (N. S.) 518; 25 L. R. A. (N. S.) 483.

This brings us then to the consideration of the question of whether the judgment of the court in this case was invalid.

The first question which calls for consideration is whether the fact that the defendant pleaded nolo contendere, and sentence was thereupon postponed, places her in any other situation than she would have been in had she been convicted upon trial or had pleaded guilty.

This plea, in which the defendant pleads in the first person nolo contendere, and the clerk properly enters it in the third person, non vult contendere, was used at common law, and, while unknown in many of our sister states, is used in some of them, and, so far as our books show, has always been usable in this jurisdiction. Peacock v. Hudson Quarter Sessions (Supreme Court, 1884), 46 N. J. Law (17 Vr.) 113; State v. Henson (Court of Errors and Appeals, 1901), 66 N. J. Law (37 Vr.) 601.

Concerning this plea, it is said, in 2 Encycl. Pl. & Pr. 787:

“A plea of nolo contendere is, as its name indicates, a declaration that-the defendant will not contend as to his guilt or innocence; and although it is not common, it is sometimes allowed in misdemeanors as a sort of' compromise between the prosecuting officer and the defendant. It is pleaded only by leave of the court, but its effect when accepted differs but. little from that of a plea of guilty, as far as the same suit is concerned. Upon this plea it is not necessary or proper that the court should adjudge the party to be guilty, but sentence should bo passed forthwith.”

And the text is borne out by the New Jersey authorities above-cited, by those in the notes to the text, and by those next cited herein, which latter further show that upon the acceptance of' this plea the court is unrestricted by law with respect to the-sentence which it may impose within the limits fixed by the-statute for the punishment of the specific offense, whatever may otherwise be the case if the court enters into an arrangement to-fix a light penalty. Commonwealth v. Ferguson, 44 Pa. Sup. Ct. Rep. 626; Commonwealth v. Stewart, Ibid. 620; State v. Herlihy (Me., 1906), 66 Atl. Rep. 643; State v. Siddall (Me., 1907), 68 Atl. Rep. 635.

The fact that .very often the plea is accepted by the court,, after a consultation with the prosecutor and the prisoner in which it is agreed that a light punishment shall be inflicted, does-not alter the situation; and we are not concerned with, and I shall not, therefore, attempt to determine what the legal effect would be,of an alleged violation by the court of an agreement tm lightly sentence one who should thus be induced to plead nolo contendere.

The next matter to be considered is whether the act of 1898,. chapter 237, section 55, as amended by the act of 1908, page 429, which is relied upon by the petitioner, applies to the casein hand?

The original act and its amendment, after providing that the-court before which a conviction is had, and which has sentenced' the prisoner, may, upon application for a new trial, have power-at any time during the term at which the judgment was entered, to open and vacate the same and grant a new trial and discharge the defendant from custody upon bail pending the new trial, and may, upon application of the defendant, or on its own motion, open and vacate the judgment entered on any conviction, and re-sentence the defendant as right and justice may seem to require, and discharge the defendant from custody upon bail, pending such resentence, provided (and this was added by the act of 1908) :

“that the court shall not have power to open and vacate any judgment entered on any conviction for a high misdemeanor after the term has expired in which the judgment was entered.”

Eor this act to have any application whatever to the case at bar, it must first be found that there was a sentence pronounced at one term, which sentence was sought to be opened or vacated after the time had expired in which it was entered.

It is true that whoever kept what is called the “record” of the court of quarter sessions in the case in hand, did enter thereon, under date of August 9th, 1911, the following: “Sentence by court is hereby ordered revoked and deft, is ordered held for re-sentence.” The only previous entry in which anything whatever is said about judgment or sentence is dated June 17th, 1909, and reads as follows: “Defendant, Johanna Gehrmann, being placed to the bar, sentence was postponed.” Unless, therefore, it is proper to hold that the action of the court on the 17th of June, 1909, in postponing the sentence was, in effect, imposing sentence or rendering judgment, the act in question has no application whatever, and the entry of the clerk is negligible.

The petitioner throughout has treated a postponement of sentence as equivalent to a suspension of sentence, and each of them as equivalent to what should more precisely be called “suspension of sentencing.” If it should be found in this state that the action of a court in postponing sentence was equivalent to what is incorrectly termed “suspension of sentence” (which is really a suspension of sentencing), and that such action was in effect pronouncing a judgment or sentence, then it might be that this act would have application. As will be shown hereafter, some courts have held that an indefinite suspension of sentence was practically a sentence that the defendant shall go without punishment. (See Mr. Justice Swayze’s attribution of meaning to the words “sentence suspended-” in Blazier v. Keffer (Supreme Court, 1011), 79 N. J. Law (50 Vr.) 252, which was not a case of indictment and trial, but a conviction in a summary proceeding for violation of a city ordinance.)

If it shall be found to be the law in this state that suspending the pronouncing of sentence is a final judgment or sentence, then the defendant, in any event, as it seems to me, would succeed without regard to whether or not the act in question applied.

In State v. Tolla (Supreme Court, 1906), 73 N. J. Law (44 Vr.) 249, it was held that “after the term in which the judgment was regularly perfected, the court cannot disturb or alter the judgment in a matter of substance * * citing authorities.

I shall, therefore, leave specific consideration of the application of this statutory law, excepting as its consideration may be affected by the conclusions reached with respect to the common law and the practice in New Jersey thereunder in regard to the subject matters.

This, then, brings us to the nub of the case, and the important matter requiring consideration, and that is: what is the effect, upon the question of jurisdiction and power to subsequently sentence, of postponing sentence at one term and not inflicting any punishment until after that term, and until after a considerable period has passed?—the period in the case at bar being-two years and three months.

To one approaching this subject for the first time, the initial question which presents itself is whether there is any legal foundation for the popular conception held, I think by most lawyers, that a sentence, which is the judgment of the court, to be legal and effective, must be pronounced at the term at which the conviction is had?

So far as my researches go, this conception has no basis upon which to rest; that is to say, at common law, and where the matter is not regulated by statute, there does not appear to have been any legitimate objection to a sentence imposed after the term at which the conviction was had. 19 Encycl. Pl. & Pr., tit. “Sentence and Judgment,” 446:

“Ordinarily the judgment, unless for a good reason it is delayed, should be pronounced at the trial term of the court; but it is well settled that in ihe absence of a statute to the contrary, the power to pass sentence may be exercised after the term at which the defendant was convicted, and even by a different judge holding the same court.”

Citing authorities; in addition to which see State v. Aaron (Supreme Court, 1818), 4 N. J. Law (1 South.) *231; Hall v. Patterson, 45 Fed. Rep. 352; Pegalow v. State, 20 Wis. 65; Ex Parte Williams, 26 Fla. 310; State v. Wright (Ark., 1910), 131 S. W. Rep. 688, and see cases cited in note to page 447 of 19 Encycl. Pl. & Pr.

In note 2, page 446, of the same work, it is said:

“A denial of this power would be highly inconvenient and prejudicial to the administration of criminal justice as preventing the suspension of sentence in cases where it is proper or necessary,”

and, of course, all the cases which are hereinafter cited by me which maintain the right to impose sentence after a suspension of sentencing are exactly in point oh the right to sentence after the term at which the conviction was had.

There, therefore, seems to be no difficulty with those cases in which the pronouncing of the judgment or sentence is postponed from time to time for a legitimate purpose, and which finally result in a judgment being pronounced. The real difficulty arises where the court either postpones sentence indefinitely (that is, without fixing a time), or does what is termed “suspending sentence.” It is well to dwell just for a moment upon the terms to be used, as they shed light upon the authorities to be cited. The term “suspending sentence” has been indiscriminately applied by many courts in two entirely different situar tions. In one use it has been applied to cases where the court did not impose any sentence whatever, but suspended the pronouncing of sentence; and it has been also applied to cases where a sentence has been pronounced, but the court has suspended the operation or execution of tbe sentence. Some of the authorities which are cited, in support of the principle that the court has not power to suspend sentence indefinitely will be found to apply to the latter use of the word, and to hold that where a court has determined and pronounced what punishment should be suffered, it is fundus and has not, excepting when legislatively authorized, power to suspend the operation of the sentence which it has pronounced.

Since the case in hand does not call for a consideration of the power of a court to suspend the operation of an imposed sentence, it is only useful for us to refer to it so as to be sure that an authority dealing with the power of the court in the matter of suspending sentence related to the suspension of the pronouncement of a sentence, and not to the suspension of the execution of an imposed sentence.

Whether or not postponing sentence indefinitely (that is, without specifying the date to which it is postponed), and suspending the pronouncing of a sentence indefinitely (that is, similarly, without fixing a day) are two different ways of phrasing an identical act, must next be considered. If we are to be governed by shades of meaning of the words used, I am inclined to think that there is a difference. I think that the word “postponed” connotes the taking up of the matter again, whereas, the word “suspend,” while it is sometimes used to convey that idea, more exactly connotes the putting aside of the matter without any necessary implication that it is ever to be taken up again. When we say “The contractor has suspended operations on the buildings,” or a merchant “has suspended payment of his obligations,” we intend to convey the idea that there has been something more than a mere postponement, something less than an absolute and final cessation—the exact idea would seem to me to be a stopping or cessation which is more than likely to be permanent, but may not be.

James G-. Blaine, in his “Twenty Years in Congress,” volume 2, chapter 18, page 453, says, “The president was left at liberty to suspend any officer without assigning a cause, and to nominate his successor.” In this last instance it will be seen that “suspend” was used in the sense of a definite ending of the officer’s right, not an intermediate stay of something to be thereafter resumed.

However, I do not think it would be proper to base a determination upon the etymology of the words used, or upon nice distinctions with respect- to their use, but rather upon the popularly understood meaning and the substantive effect. In this view, I think it is of little momeñt in the case at bar. that the entry' read “sentence was postponed/’ instead of “sentence was suspended.” If I err in thus treating the matter, the error is in favor of the petitioner, because, undoubtedly, the court- has power to postpone (leaving aside, now, the question of indefiniteness), whether it has power to do what it may be proper to call “suspend,” or not. In my subsequent consideration I shall, therefore, treat what was done, as, in effect, a suspension of sentencing.

Upon the question of whether or not a court, irrespective of legislation, has power to suspend sentence indefinitely, authorities differ. Since there is no statute .in this state upon the subject, it must be determined by what we find the common law to be.

Upon this subject there is great contrariety of opinion and direct conflict of decision. Some of the courts draw the inference from the English precedents that at the common law as there administered there was nothing in the nature of an indefinite suspension of sentence. Other courts, from the same sources, draw an exactly opposite inference. Some deny that there was any power to suspend sentence at all; others say that there was power to do so temporarily; while others say that there was power to do so indefinitely.

Such original investigation into the English authorities as I had time to make did not serve to satisfy me that the situation, as there existing, was clearly ascertainable. There is little in the books upon the subject,- and much is left to inference. Enough, however, can be gathered from the English precedents to show that courts of criminal jurisdiction exercised the power of delaying the imposition of a sentence for various reasons, and of delaying the operation of an imposed sentence, and did not do this by virtue of any statute, and therefore must have inherently had the power so to do. Eac-h other jurisdiction Las determined for itself whether, according to the common law, custom and usage therein, the courts thereof have the power to suspend the pronouncing of a sentence (or to suspend the execution of a pronounced sentence), or have not such power. In each group will be found cases in which the power, if found to exist, or the lack of it, if found not to exist, is traced to the common law as practiced in the English courts; while other cases in each group will be found which affirm.or deny the power in accordance with custom, usage or the practice of the common law, as found to exist in their jurisdictions. In the following cases it will be found that the court, for one reason or another, has denied that the court had powrer to suspend the pronouncing of sentence: People v. Morrisette (N. Y. O. & T.), 20 How. Pr. 118; People v. Allen (Ill., 1895), 41 L. R. A. 473; People v. Blackburn, 6 Utah 347; People v. Brown, 54 Mich. 15; United States v. Wilson, 46 Fed. Rep. 748; Gray v. State, 107 Ind. 177; Ex parte Peterson (Idaho, 1911), 113 Pac. Rep. 729; State v. Hilton (N. C., 1909), 65 S. E. Rep. 1011; State v. Hockett, 108 S. W. Rep. 599; 129 Mo. App. 639.

In the following cases the court has held that it hád the power to suspend the pronouncing of a sentence: People, ex rel. Forsythe, v. Court of Sessions, 141 N. Y. 291; 29 L. Ed. 107; 23 L. R. A. 856; State v. Buckley (N. H.), 74 Atl. Rep. 875; Iowa v. Voss (Iowa, 1890), 8 L. R. A. 768; People v. Mueller, 15 Chic. L. N. 364; Weaver v. People, 33 Mich. 297; In re Webb (Wis., 1895), 27 L. R. A. 356; State v. Crook (N. C., 1894), 29 L. R. A. 260; Weber v. Ohio (Ohio, 1898), 41 L. R. A. 472; Green v. State (Ark., 1908), 114 S. W. Rep. 477; Commonwealth v. Dowdican, 115 Mass. 136; Marks v. Wentworth, 85 N. E. Rep. 81; 199 Mass. 44 (1908); Ex parte St. Hilaire, 64 Atl. Rep. 882; 101 Me. 522 (1906).

The following cases concern the power of a court to suspend the execution of an imposed sentence; some holding that it has the power, and others that it has not: Ex parte Clendenning, 19 L. R. A. (N. S.) 1041; Clifford v. Heller (Supreme Court, 1899), 63 N. J. Law (34 Vr.) 105 (at p. 116); 57 L. R. A. 312; People v. Cummings, 14 L. R. A. 285, notes; State v. Voss, supra; In re Webb, supra; Neal v. Georgia (Ga., 1898), 42 L. R. A. 190; Weaver v. Ohio, supra; State v. Abbott (S. C., 1911), 70 S. E. Rep. 6; Wall v. Jones (Ga., 1910), 69 S. E. Rep. 548; Ex parte Cornwall, 122 S. W. Rep. 666; 223 Mo. 259; State v. Smith (Ind., 1910), 90 N. E. Rep. 607; Tanner v. Wiggins, 45 So. Rep. 459; 54 Fla. 203 (1907).

Since the cases as cited above which affirm the power are property based upon a finding of the existence of such power in the court by virtue of the custom, usage and common law as administered in that court, the next inquiry is, what is the fact with respect to our own state ?

From such inquiry as I have made, I find that an indefinite suspension of sentencing has been the custom in this jurisdiction beyond the memory of those now connected with the administration or practice of the criminal law in this state. Such references as are made to the matter in reported cases bear out the inference that such custom has been one of long existence in this jurisdiction. State v. Addy, supra; State v. Henson, supra—Mr. Justice Collins in dissenting opinion (at p. 610); Blazier v. Keffer, supra; Clifford v. Heller, supra.

The conclusion which I have therefore reached is that in the State of New Jersey if a defendant has pleaded nolo contendere, or guilty, or has been convicted upon trial,- the court has the power, if the defendant does not object thereto, and therefore is assumed to assent thereto, to refrain from pronouncing a judgment or sentence, and may, at a subsequent time, hale the defendant before it, and impose the punishment in the same manner that it would have been justified in pronouncing it upon the very day when the case was first ripe for sentence.

It will be observed that I have said that this rule is only applicable in its full force where the defendant has not objected, or will be found to have assented; because I find no authorities as to the power of the court to suspend the sentencing in the face of an objection by the defendant.

Since, so far, as neither the counsel engaged nor have I been able to find any case in New Jersey in which the question has been squarely raised and decided, and since I find the custom to be one of ancient origin and constant practice, it may not be a waste of time to give a brief consideration to the propriety or impropriety of the custom.

The two points of view from which the matter must be considered are, of course, that of the state or public on one hand and that of the defendant on the other. Since the measure of the punishment to be inflicted in any given case (excepting some few of which murder in the first degree is-a conspicuous example) is left entirely at the discretion of the court, it would seem that, from the public point of view, it must be held that the public rights are presumably protected by whatever the judge in his discretion does in this respect. It is for him to determine whether the defendant shall pa.y a fine within the limits fixed by the statute, or suffer some imprisonment, within limits similarly fixed. And it can well be argued from the standpoint of public policy that it is proper for the court, in those cases where it finds that the public interests will best be served by not presently imposing any sentence to thus deal with the subject.

Considerations of public policy may often properly induce a court to hold off inflicting punishment for such a time as that course seems discreet to the court. The power would seem to be analogous to the immunity that courts, in their discretion, may give an accomplice to aid the prosecution. State v. Graham (Supreme Court, 1879), 41 N. J. Law (12 Vr.) 15; and is similarly exercised where one equally guilty has pleaded guilty or non wit, and has aided the state in the trial of the others concerned in the commission of the crime.

From the defendant’s standpoint, the only legitimate objection, it would seem to me, to the action of the court in refraining from presently inflicting punishment, would be the undesirability of remaining in the indeterminate position resulting from a suspension of the pronouncement of judgment. But is not this essentially a matter within his own control? Undoubtedly, any convicted defendant could compel the proper court, by mandamus, to pronounce judgment; and, in my view, if a court sought to postpone the sentencing, or suspend it, for any purpose or any period which would be clearly unreasonable, the defendant could fully protect his rights by objection which would, undoubtedly, in my view, result either in the trial court not attempting to exercise the jurisdiction in the face of objection, or in the supreme court holding that, in the face of an objection, the trial court acted improperly in unreasonably delajdng the pronouncement of judgment and subsequently pronouncing one.

As a general principle, I should say, that, either the successful or the defeated party in any litigated proceeding, civil or criminal, could move for judgment at any time when and after the matter was ripe for judgment.

But if the defendant acquiesces, or does not object, it is difficult to see how he can be said to be injured. It is necessary to remember that the defendant has been convicted; that the court has the power to inflict the full measure of punishment; that if a defendant, thus in peril of suffering the full penalty of the law,_ is not visited with it, many things may happen favorable to Mm; while nothing worse than his present plight can possibly happen. If a defendant thus circumstanced sees fit not to object, or to acquiesce,-! do not see who else is concerned that can complain, nor how he can legitimately complain.

I feel quite sure that, under the criminal law, as administered in tMs state, where every right of the defendant is zealously guarded, and the state is held to have power to inflict punishment only when every step has been taken in exact accordance with legal procedure, there is no danger that a defendant will have any right violated, or be in any way oppressed, if the custom so long in vogue is continued.

I am inclined to say—although, of course, not to find, because it is not in issue—that the power thus to indefinitely suspend sentencing, which exists in the court, is not exercisable in the face of an objection by the defendant; that when exercised, in default of objection,'and with either implied or actual acquiescence, it is a lawful exercise of power residing in the court, and cannot result in the release of a prisoner subsequently sentenced, and who applies by a writ of habeas corpus for that purpose.

The only doubt which remains to be dealt with was one not directly raised by the defendant in this case, but which has occurred to the court in the consideration thereof; and that is the effect of the probation laws upon this subject. In the laws of 1900, page 289, there will be found an act entitled "An act to provide for the appointment of probation officers and to define their powers and duties.” In the fourth section of this act it is provided

“in case 1he record of any person convicted of crime shall, in the judgment of the court so justify, it shall be lawful for the court in which the conviction is had instead of imposing- the penalty provided by law for the offence, to suspend the imposition of the penalty and to order the person so convicted to be placed upon probation under the care of such probation officer for such time and upon such conditions as the court in its order shall determine.”

The ninth section provides for sentencing upon violation of -the conditions of probation, but provides that this cannot be done after a period of three years has elapsed from the .date of original conviction. This act was repealed in 1906 (P. L. ch. 74 p. 104), and by chapter 75, page 104 (P. L. 1906) there is provision made for the appointment of probation officers and defining their powers and duties; and in the same year, by chapter 76, page 107, the provisions relating to placing persons on probation are re-enacted under the title of “An act relating to courts having criminal jurisdiction and regulating proceedings in criminal cases.” Incidentally, I gather that it was considered that these last cited provisions were unconstitutional while they remained in an act relating to probation officers, rather than in an act which, by title, had reference to courts of criminal jurisdiction.

The question raised by the existence of this legislation is whether, in view of it, it should not be held that the court has not the power to indefinitely suspend sentencing, but is now restricted to placing the person on probation, suspending the imposition of the sentence in the meantime as provided in the act.

While I have not had time to consult the Illinois statute and to see in what respects it differs from ours, the court of appeals of Illinois, in the case of People v. Barrett, 63 L. R. A. 82, held that whatever the power was at common law theretofore, the enactment of their statute with respect to probation, or releasing on parole, made it improper thereafter to indefinitely suspend the imposition of a sentence except in cases where the defendant was placed under the jurisdiction of the board in question. I gave long and earnest consideration to the question of whether I should not make a similar finding in this case; but I have finally reached the conclusion that it would be improper for me to do so. Finding, as I do, that from time immemorial, so far as our jurisdiction is concerned, -it has been the common law as it obtained in this state to suspend indefinitely the imposition of sentence in cases where the court in its discretion thought best to do so, and the defendant did not object, or acquiesced, I do not find that this legislative act has taken away that power. It certainly has not attempted to do so by any direct language. The defendant in each instance where the court indicated its intention not to impose a sentence immediately but to postpone the same, might object, as I have above suggested, either to the suspension of the sentencing indefinitely, or to doing so unless the defendant was placed on probation—and if the court, over his objection, then indefinitely suspended sentencing and subsequently sentenced, I think it would be error. But I do not find that this legislation has deprived the court of its power where the defendant has not objected, and has impliedly or actually acquiesced, and that the court has the power under those circumstances, to postpone the imposition of a sentence and subsequently to impose sentence.

Such is the decision of the supreme court of New York. People v. Flynn, 106 N. Y. Sup. 925; 55 Misc. Rep. (New York Supreme Court, 1907) 639.

Having thus reached the conclusion that the judgment in this case was not invalid because I find that it was by a competent tribunal having criminal jurisdiction, which had jurisdiction of the person, and imposed that judgment within the terms of the law, I have discharged all the duty which it is proper for me to assume under a writ of habeas corpus.

If there was error of any sort committed by the court in imposing this sentence—if there was abuse of discretion amounting to legal error—that is eorrectible by writ of error, and is clearly not review able under a writ of habeas corpus.

The order will be that the defendant will be remanded to the custody of her present custodian.


source: Caselaw Access Project

license: Public Domain

text:
    Benjamin M. Price et al. v. Nina Patterson et al.
    [Decided August 8th, 1911.]
    1. The testator’s residuary estate was given by his will to his trustees in trust to pay the income thereof to his four children as therein provided, and the disposition of the principal of each of the shares was controlled by the following language used in respect of one of them: “And upon the death of my said son Edward, the one-fourth part of my then residuary estate is to be divided between and paid to the persons, including my trustees, who, under the terms of this will shall then be entitled to receive, have or hold the principal of the other shares of my residuary estate, in the same proportions as they may then be respectively entitled to in such other shares and upon the same trusts and conditions respectively as to such shares as may still be held in trust under the terms of this will.”—Mold, that on the contingency named, the share of Edward P. (in this instance), or of others in each specific instance, was to be diT vided between and paid to whoever was then in a position to receive the principal under the terms of the will, and if no one was then in a position so to receive the principal, then it was to go to the trustees to be held for the persons who were then receiving the income of the respective four shares as then constituted, and to be held by the trustees upon the same trusts and conditions as the rest of the estate was then, held for those then entitled: to receive the same.
    2. The assignees under an assignment executed by a grandson of the testator dated January 18th, 1908, comprising the grandson’s contingent interest, and not the grandson’s general assignee in insolvency under an assignment afterwards made, are entitled to such interest.
    Final hearing on bill, answer and proofs.

      Messrs. Hartshorns, Insley & Leake, for the complainants.

      Messrs. Tennant & Haight, for the defendants.
   Garrison, Y. C.

(orally).

Benjamin Price, the testator, died on the 10th of September, 1892, having made a will, which was dated on the 11th of Septembcr, 1891. At the time of making his will he had four children, as follows:

First. A son Benjamin P. Price, who had then a living daughter Nina P., married to a man named Patterson.

Second. A son David S. Price (who had a son Benjamin M., who, in turn, had a son David Shotwell Price); a daughter, Emma B. Price, at that time intermarried with a man named Munn (and they had no children); a daughter named Florence P., intermarried with a man named Jaeger (who at that time had a child, Gustave Jaeger).

Third. A son Edward P. Price, who was unmarried and insane, and incarcerated at that time in an insane asylum.

Fourth. A daughter, Sarah S., intermarried with a man named Brett (and they had no children).

His will, which is a very long one, provides, so far as the matter with which we are now concerned, for the disposition of his residuary estate as follows: That there shall be three trustees, who are to have and hold, as joint tenants, all of the said residuary estate. They are to pay the income thereof to his four children— Benjamin P., David S., Edward P. and Sarah S.—excepting as to Edward P., the insane son, they were only to pay so much as might be necessary for his proper maintenance, &c. With respect to the income allotted to Benjamin P. and David S., it is provided that if they have children, the children are to enjoy the income for twenty years after the date of the death of their father, and such of the children as are then surviving are to get the principal of the share. This is not so with respect to Edward P., nor is it so with respect to Sarah S. As to her share (that is, Sarah S. Price’s), it is provided that she is to have the income during her life; that if she shall die before her husband he is to have the income during his life; that she may appoint who shall have the principal by a will, to operate either at her death, if her husband has predeceased her, or after his death, if he survives her; and, in default of a will, that then the principal shall ultimately go to her children, if she have any. And then with respect to her, and with respect to each of the three other shares, it is provided, by similar language, what shall happen if she and Benjamin P. and David S. shall, at the period provided for in the will, have no issue. As to Edward P., the same provision is contained, although there is no provision which would take care of any issue if he were to have any.

It is with the construction of this clause, which appears with respect to each one of the children upon certain contingencies, that we are now concerned.

Edward P. died on the 10th of June, 1910. The paragraph in question which, in the will, has specific reference to his share (and, as before stated, is in identical language as that with respect to each of the other three shares), reads as follows:

“And upon the death of my said son Edward, the one-fourth part of my then residuary estate is to be divided between aud paid to, the persons, including my trustees, who, under the terms of this will shall then be entitled to receive, have or hold the principal of the other shares of my residuary estate, in the same proportions as they may then be respectively entitled to in such other shares and upon the same trusts and conditions respectively as to such shares as may then still be held in trust under the terms of this will.”

Both Benjamin P. and David S. had predeceased Edward, Benjamin P. dying on the 27th of March, 1902, leaving his daughter, Nina P. Patterson, surviving him; and David S. having died on the 16th of December, 1903, leaving his son Benjamin M. and his (Benjamin M.’s) son David Shotwell Price; his daughter Emma P. Munn, and his daughter Florence P. Jaeger (and her son, Gustave Jaeger), surviving him.

Mrs. Brett is still alive.

Therefore, at the time of Edward P.’s death the situation of the estate, so far as this matter is concerned, was this: The trustees were holding in their hands the entire residuary estate, and were paying the income of one-fourth thereof to Mrs. Patterson. They were paying the income of one-fourth thereof, in three parts respectively, to Benjamin M. Price,. Emma P. Munn and Florence P. Jaeger, the three children of David S. Price, deceased; - and they were paying the whole of the income of one-fourtli to Mrs. Brett.

My opinion, from reading the entire will, or so much thereof as bears upon this question, and of the situation existing at the time of the testator’s death as disclosed by the will and the facts which I have above recited is, that by this language above quoted, and which occurs, as I have said in certain contingencies in the disposition of each one of the four parts into which the residuary estate was originally divided, upon the death on the contingency named, the share of Edward P. (in this instance), or of others in each specific, instance, was to be divided between and paid to whoever was then in a position to receive the principal under the terms of the will, and if no one was then in a position to receive the principal to have it as their own, then it was to go to the trustees to be held for the persons who were then receiving the income of the respective four shares as then constituted, and to be held by the trustees upon the same trusts and conditions as the rest of the estate was then held for those then entitled to receive the same.

It was, of course, a contingency which this testator must have had in mind, that at the time of the death of Edward P., for instance, it might well be that Mrs. Brett would have died and left a child. Under the terms of this will, this child would therefore, upon the death of Edward P., be entitled to principal, because she was entitled to the principal of the share set aside for her mother. The children of David S. and of Benjamin P. would not be entitled to principal unless their fathers had been dead twenty years, and, therefore, there would have been two classes between whom this money could be divided; one class, those whose money was still held in trust for them and must be so held for a period of years; the other, those who were entitled to immediate distribution of principal.

There are numerous other contingencies of a like character, all of which would be met and satisfied by this construction.

There is no dissent from this construction which the court has placed upon this language, excepting on behalf of Mrs. Patterson, Mrs. Munn, Mrs. Jaeger and the assignee in insolvency of Benjamin M. Price, who is the son of David S. Price. It is his contention (that is, this assignee’s contention) that the meaning of the clause quoted is, and that it must be construed to be,' that upon the death of Edward there should be immediately distributed as principal the one-fourth part of the residuary estate, the income of which had been payable to or on account of Edward’s maintenance and support, to the grandchildren of Benjamin M. Price, then living.

His idea is, and his argument is, that while it is true that, under the clauses of the will respecting Benjamin P. and David. S. the fourth part of the residuary estate upon which they and their children were to receive income was not to be distributed as principal for a period of twenty years after the death of 'them respectively, still, with respect to the death (or the contingency mentioned) of Edward P. or Mrs. Brett, before this period had been reached of distribution of principal of their shares, the share of their fathers (that is, Benjamin P. and David S.), the share of such one, David P. or Mrs. Brett, could be immediately distributed as principal to these contingent beneficiaries.

T do not think either the language, the scheme which the will discloses, or any theory of construction that I could give sanction to, could possibly result in this reading of the will. It does violence to the language, and requires the absolute excision,- in my view, of many of the words which appear in this clause. It is necessary to absolutely strike out, in the beginning, the words “including my trustees,” because if the money is to be paid directly to these grandchildren, and was not to be paid to any trustees, it was to be paid to individuals for their individual use and profit; and it requires the absolute elimination, in my view, of all that part of the clause beginning “Upon the same trusts and conditions,” &e.

These words, which are required to be excised to reach the construction contended for by the assignee in insolvencjr, illuminate, in my view, and make perfectly clear what the testator did mean when you leave them in the clause and read it in its entirety. He did mean, as I have said before, in my view, to have the share of Edward P., when he died, go to the same people, upon the same trusts, and to be held in the same manner as the other shares were then going to, being held for and being then paid to or divided among. This is the construction which I shall adopt.

The next issue which is now before me and requires determination is, as between the assignees of Benjamin M. Price, the son of David S. Price, Avho are mentioned in and covered by an assignment dated the 18th of January, 1908. That assignment, signed by Benjamin M. Price, recites:

“That I, Benjamin M. Price, in consideration of the sum of forty-five hundred dollars, to me paid by Emma R. Price and Nina P. Patterson, have assigned to the said Emma R. Price and Nina P. Patterson and their assignees, and do hereby assign to the said * * * all my interest in and to the legacy due me under the terms of item 7th of the will of Benjamin M. Price, together with all profits and accumulations due and to become due therefrom, and all my rights and interests therein, and thereby, vested in and conveyed to me * *

And he then makes them his attorneys to collect and receive in his name, &c. The other person who contests with the assignees just mentioned, the rights in question, is Mr. Clarence Mabie, who was made the general assignee in insolvency of Benjamin M. Price by an instrument of said Benjamin M. Price under date of the 12th of December, 1910.

I am going to hold that this assignment to Emma E. Price and Nina P. Patterson Aras intended, as by fair construction of its language it does, to convey to them Avhatever interest Benjamin M. Price had—contingent, or whatever the nature of it was— under the seventh item of the Avill of his grandfather.


author: Leaming, Y. C.

text:
    William H. Hess, Jr., by his next friend, v. Madaline Kimble.
    [Heard October 24th, 1911.
    Determined October 26th, 1911.]
    1. The Divorce and Annulment act of 1907 (P. L. 1901 p. 1/14), provides that a decree of nullity may be rendered at the suit of the husband, when he was under eighteen at the time of the marriage, unless such marriage be confirmed by him after arriving at such age. The act further provides, “for purposes of annulment of marriage, jurisdiction may be acquired by personal service of process upon the defendant within the state when either party is a tona fide resident of the state, at the time of the commencement of the action.” Petitioner and defendant resided with their respective parents, who were domiciled in Philadelphia, Pennsylvania, and came to New Jersey and were married, returning at once to the homes of their parents in Philadelphia. When the marriage was disclosed a week later, the petitioner’s parents would not permit him to receive defendant as his wife, and on March 9th, 1910, sent him into this state to board with relatives; his earnings and some assistance from his father going to pay his board. His petition was filed March 26th, 1910.-—Eeld, that the term “resident,” as used in the act, included not only the'faetum of residence, but also the animus manendi, the residence required by the statute being equivalent to domicil; and that petitioner was not a “tona fide resident” of this state, and hence that the court had no jurisdiction.
    2. The domicil of a legitimate unemancipated minor, whose will cannot concur with the fact of residence, is, if his father be alive, the domicil of the father.
    3. A minor cannot change his domicil of his own will.
    4. The burden of proof to establish a change of domicil on the part of a minor is on him.
    5. Where petitioner in a suit for annulment of a marriage attempts to make himself a resident of the state, for the purpose only of procuring the benefit of the local statute, no relief can be granted.
    Final hearing on petition, &e., to annul marriage.
    The petition in this case is filed in behalf of William H. Hess, Jr., a minor, by his next friend, to annul his marriage to defendant on the ground that he was under the age of eighteen at the time of said marriage, and that he has not, since arriving at that age, confirmed the marriage.
    The petition is filed under the Divorce and Annulment act of 1907 (P. L. 1907 p. Jfll/.), which act provides that a decree of nullity of marriage may be rendered
    “at the suit of the husband when he was under the age of eighteen at the time of the marriage, unless such marriage be confirmed by him after arriving at such age.”
    At the final hearing the evidence fully established the facts that petitioner and defendant were married February 19th, 1910, at Camden, New Jersey, at which time petitioner was between sixteen and seventeen years of age (the date of his birth being April 27th, 1893), and that the marriage has not been confirmed by petitioner since arriving at the age of eighteen years. The petitioner, therefore, is entitled to a decree of nullity, provided this court has jurisdiction.
    The jurisdictional provisions of this statute are:
    “For purposes of annulment of marriage jurisdiction may be acquired by personal service of process upon the defendant within this state when either party is a liona fide resident of this state at the time of the commencement of the action.”
    The evidence discloses that at the time of the marriage ceremony petitioner and defendant resided with their respective parents in the city of Philadelphia, Pennsylvania, in which city the respective parents were domiciled; that petitioner and defendant went to Camden, New Jersey, February 19th, 1910, and were there married on that day, and at once returned to the homes of their respective parents in Philadelphia; that they did not acquaint their parents with the fact of their marriage until about one week later, when they disclosed that they were married and that defendant was pregnant; that between the day of the marriage and the day their marriage was disclosed, petitioner called upon defendant in the evenings at the home of her parents and enjoyed matrimonial intercourse with her; that during the week following the disclosure of the marriage great consternation existed in the respective families of petitioner and defendant touching the course to be pursued, the parents of petitioner refusing to permit petitioner to receive defendant as his wife, and the parents of defendant insisting that their daughter should be permitted to enjoy her matrimonial rights, and threatening litigation in her behalf; that under these conditions the father of petitioner sent him to Belrnar, New Jersey, where he'has since boarded with relatives. The date of petitioner’s departure from Philadelphia, Pennsylvania, to Belrnar, New Jersey, was March 9th, 1910. The date of the filing of the petition for annulment was March 26th, 1910. At the time petitioner went to Belrnar he was less than seventeen years of age, and entirely without funds. He has remained there until this time, and has been employed a portion of the time, and has applied his earnings to the payment of his board; from time to time it has become necessary for his father to contribute money for the payment- of petitioner’s board.
    Jt is claimed, in behalf of petitioner, that his primary reason for going to Belrnar was his ill health.

      Mr.-John E. Switzer, for the petitioner.

      Mr. J. Fiihim Tatem, for the defendant.
   Leaming, Y. C.

I am entirely satisfied that this court is without jurisdiction to entertain the petition filed in this suit for the reason that neither petitioner nor defendant was a bona fide resident of this state at the time the petition was filed.

The term “resident,” used in the several successive legislative acts of this state which confer jurisdiction on this court in suits for divorce and annulment of marriage, has been uniformly recognized as including not only the factum of residence but also the animus manendi; the residence required bj’’ our statute is the equivalent of domicil. Williams v. Williams, 78 N. J. Eq. (8 Buch.) 13; Coddington v. Coddington, 20 N. J. Eq. (5 C. E. Gr.) 263; Harral v. Harral, 39 N. J. Eq. (12 Stew.) 279; McShane v. McShane, 45 N. J. Eq. (18 Stew.) 341; Firth v. Firth, 50 N. J. Eq. (5 Dick.) 137; Sweeney v. Sweeney, 62 N. J. Eq. (17 Dick.) 357; Tracy v. Tracy, 62 N. J. Eq. (17 Dick.) 807; Grover v. Grover, 63 N. J. Eq. (18 Dick.) 771; Hunter v. Hunter, 64 N. J. Eq. (19 Dick.) 277; Mason v. Mason, 69 N. J. Eq. (3 Robb.) 292; King v. King, 74 N. J. Eq. (4 Buch.) 824.

It is apparent that petitioner cannot be regarded.as having been a bona fide resident of this state, within the meaning of our statute, at the time of the commencement of this suit. As a minor the domicil of petitioner was presumptively that of his parents. The evidence discloses no emancipation upon the part of his parents. On the contrary petitioner has manifestly at all times been under the control and subject to the direction of his father; he has been and now is a member of his father’s family in every essential aspect except that of physical presence; his home is his father’s home; at the time the petition was filed petitioner was boarding with relatives in New Jersey at the expense of his father, and was not in this state as the result of any independent exercise of his own will; the father at his own instance procured a lawyer to institute this suit 'in petitioner’s behalf and directed petitioner to go to the lawyer and sign the petition. Under such conditions it is impossible to regard petitioner as a bona fide resident of New Jersey within the meaning of our statute. Chancellor Runyon, in Blumenthal v. Tenneholz, 31 N. J. Eq. (4 Stew.) 194, adopting the view expressed iii Phillimore on Domicil, states the law of domicil of a minor to be as follows: ''‘The domicil of the legitimate unemaneipated minor who is not sui juris, and whose will, therefore, cannot concur with the fact of residence, is, if his father' be alive, the domicil of the latter. Phillim. Dom. 37. It is an undisputed position of all jurists, says that writer, that, of his own accord, proprio marte, the minor cannot change his domicil. Ibid. See, also, Story Confl. L. § 46. The burden of proof to establish the change of domicil on the part of the minor is on him. Ibid. § 47.” See, also, Dennysville v. Truscott, 30 Me. 470; Inhabitants of Charlestown v. Inhabitants of Boston, 13 Mass, 469; Overseer Washington v. Overseer Beaver, 3 Watts & S. (Pa.) 548; Taylor v. Jeter, 33 Ga. 195; Marks v. Marks, 75 Fed. Rep. 321.

The evidence in this case also strongly indicates that neither petitioner nor petitioner’s father entertained any thought or purpose of regarding this state as petitioner’s permanent home until a day or two before the petition was filed, when petitioner’s father ascertained from a lawyer of this state that if petitioner were a bona fide resident of this state relief could be procured from our courts which could not be procured from the courts of Pennsylvania with that state as petitioner’s residence. It seems, indeed, more than probable that the determination of petitioner and his father to regard this state as the residence of petitioner was for the purpose of procuring the benefit of our statute. It seems needless, to state that if petitioner’s sudden determination to regard himself a resident of this state was only for the purpose of procuring the benefit of our statute, no relief can be granted.

I will advise a decree dismissing the petition.


author: Leaking, Y. C.

text:
    Floyd H. Bradley, receiver of the International Wireless Telegraph Company, v. The United Wireless Telegraph Company.
    [Submitted October 23d, 1911.
    Decided October 27th, 1911.]
    1. An adjudication in bankruptcy does not impair the jurisdiction of a state court in a pending suit for the enforcement of a specific lien against assets of the bankrupt, where such lien was acquired more than four months before the filing of the petition in bankruptcy.
    2. The filing of a judgment creditor’s bill to set aside a fraudulent conveyance. and to subject the property conveyed to the payment of a judgment and the service of process thereunder, create a lien in equity on the equitable estate of the debtor.

      3. The lien created by the filing of a judgment creditor’s bill to set aside a fraudulent conveyance, and subject the property conveyed to the judgment and by the service of process thereon, is unaffected by the bankruptcy of the debtor more than four months after the entry of the judgment, and the state court will enforce the lien against the property; the trustee in bankruptcy merely administering claims in personam and not succeeding to the rights of secured creditors.
    4. A receiver of an insolvent corporation appointed by the court of chancery may file a bill as the representative of the corporation to set aside a fraudulent transfer of corporate property, and thereby subject the assets to the payment of the creditors of the corporation, and the suit creates an equitable lien similar to that created by a creditor’s bill by a judgment creditor to set aside a fraudulent conveyance.
    5. A trustee in bankruptcy takes the property of the bankrupt subject to an equitable lien asserted by a receiver of an insolvent corporation suing the bankrupt to set aside a conveyance by the corporation to the bankrupt as fraudulent to creditors, and the adjudication in bankruptcy does not impair the jurisdiction of the state court to enforce the lien.
    On petition, &c., to stay proceedings.
    The bill in this suit was filed by the receiver of the International Wireless Telegraph Company in behalf of its creditors to set aside a certain conveyance of property made by that company to the American De Forrest Wireless Telegraph Company, and also a conveyance of the same property by the last-named company to the United Wireless Telegraph Company, upon the ground that the conveyance first named was made without consideration and in fraud of the creditors of the first-named company, and that the conveyance secondly named was also made without consideration and with knowledge on the part of the United States Wireless Telegraph Company of the facts stated touching the first conveyance. The bill seeks to enforce against the property thus fraudulently transferred the rights of creditors of the corporation first named. That corporation, at the time of the filing of the bill, had become insolvent, and complainant had been appointed by this court as its receiver in insolvency. The United Wireless Telegraph Company has answered and the case has been set for final hearing in this court.
    Pending this suit the United Wireless Telegraph Company has been adjudged a bankrupt by the United States district court for the district of Maine, and trustees in bankruptcy have been appointed by that court; these trustees now specially appear in this court in this suit and petition this court to stay the pending suit and discontinue further proceedings therein, upon the ground that the trustees in bankruptcy are exclusively entitled to administer the assets of the bankrupt.

      Mr. William 8. Darnell, for the petitioner.

      Messrs. French ,<& Richards, contra.

   Leaking, Y. C.

Whatever doubts may have formerly existed touching the effect of the bankrupt of a defendant pending certain classes of actions in a state court, it is now settled that an adjudication of bankruptcy is not operative to destroy or impair the jurisdiction of a state court in a pending suit for the enforcement of a specific lien against assets of a bankrupt, when such lien has been acquired more than four months before the filing of the petition in bankruptcy. Pickens v. Roy, 187 U. S. 177.

It is also well settled that the filing of a judgment creditor’s bill for the purpose of setting aside a fraudulent conveyance, and thereby subjecting the property to the payment of the judgment of the creditor, and the service of process thereunder, creates a lien in equity upon the equitable estate of the debtor, in the property so conveyed, and that a lien of that nature is unaffected by bankruptcy of the debtor pending the suit and more than four months after the date of the entry of the judgment. The state, court appropriately enforces the lien against the res. The trustee in bankruptcy administers all claims which are in personam, but does not succeed to the rights of secured creditors. Metcalf v. Barker, 187 U. S. 165; Taylor v. Taylor, 59 N. J. Eq. (14 Dick.) 86.

It has also been determined in this state that a receiver of an insolvent corporation appointed by this court may file a bill as the representative of the insolvent corporation to set aside illegal or fraudulent transfers of property of the corporation of which he is receiver, and in that manner subject the assets to the payment of creditors of the insolvent corporation, and that such a suit is operative to create an equitable lien similar to that created by a creditor’s bill filed by a judgment creditor. Receiver Graham Button Co. v. Spielmann, 50 N. J. Eq. (5 Dick.) 120; affirmed, Ibid. 796.

Under the authorities above cited, and the several cases there reviewed, it is manifest that the adjudication of insolvency of the United Wireless Telegraph Company is not operative to destroy or impair the jurisdiction of this court for the enforcement of the equitable lien asserted by complainant; on the contrary, the trustees in bankruptcy take the property of the bankrupt subject to the equitable lien asserted by the present bill should such lien be established in the suit now pending in this court.

I am obliged to deny the stay sought by the petition filed in. behalf of the trustees in bankruptcy.


text:
    John Thomas v. Amiee E. Thomas and Joseph Thomas, an infant.
    [Heard and determined November 14th, 1911.]
    1. In a suit to establish title to real estate claimed under a sheriff’s-sale, where complainant paid the consideration for his own benefit, but took title in the name of his three sons, testimony as to conversations with one of the sons, since deceased, is not inadmissible, the suit being one-in rom and not in personam, so that the representatives of the deceased son defending the suit do not appear in a representative capacity within the meaning of the statute.
    2. Where one pays the consideration for a conveyance of land to a stranger, the presumption is that he supplied the money for his own benefit, and the law creates a resulting- trust in his favor.
    3. Where a father pays the'consideration for a conveyance to his sons, parol evidence of circumstances preceding the transactions or contemporaneous therewith, or so nearly contemporaneous as to form a part of the-res gestee, is admissible to rebut the presumption of gift, settlement, or advancement so as to prove the existence of a resulting trust.

      Final hearing on bill, answer, replication and proofs.

      Messrs. Bleahly & Stoclciuell, for the complainant.

      Mr. Gyrus D. Marter, for the defendants.
   Leaming, Y. C.

My views in this case are entirely defined; the arguments which have been made, and the references to authorities during the progress of the case, have sufficiently refreshed my memory of adjudications in cases of this class, to enable me, I think, to correctly dispose of the matter at this time without taking it under advisement.

There is no doubt touching the facts of the case. Under the evidence which has been received the facts are clearly ánd indubitably established. The only possible ground of opposition that can be made to the decree sought is necessarily based upon the claim that some of the evidence which has been received is not competent by reason of our statutes.

The evidence which has been offered and received under my rulings establishes beyond all doubt the fact that Mr. Thomas, Sr., purchased the land in question for his own benefit at sheriff’s sale, paying $21,400 ior it with his own money. He took the title, however, in the name of his three sons, causing the sheriff to make a deed to them instead of to himself. B}r prior arrangements with his sons, he had procured from them their assent that he should do. so, and their promise that at such time as he desired the property conveyed by them to him, they would execute the deeds. He accepted their assurance to that effect without any writing being executed, and trusted them with the legal title to the property, which, as already stated, he purchased for himself, and for his own use and benefit and paid for with his own funds. The evidence clearly discloses that no money was contributed by either of these sons, and that neither understood that the purchase was for their benefit, but that all three understood that the purchase was for the sole benefit of the father. The fact is that a reason existed, which Mr. Thomas, Sr., thought was a good reason, for putting the title in the names of his sons. He was living separate from his wife at the time, under an agreement of separation, and was expecting at the time that he would soon have occasion to sell a portion of the property to an anticipated purchaser, and thought that by putting the title in the names of his sons, he would avoid any possibility of difficulty in getting his wife to sign the deed. Unfortunately, one of the sons has since died, leaving the legal title in his name, which legal title has descended to the son of that son, who is now a minor and a defendant in this suit. These facts, I say, are clearly established if the evidence which has been introduced is entitled to be considered. Under this testimony but one conclusion can result, and that is that the complainant is entitled to a decree establishing his title in this land. He is entitled to such decree as may be necessary to fully confirm his title, as he is undoubtedly the equitable owner, and is entitled to be restored to the status of a legal owner.

The objections to the admissibility of the testimony to which I have already referred, have been considered during the progress of the trial, and need not be here restated at any length.

The first objection is that the testimony of complainant touching conversations with his deceased son is incompetent because of the fact that there is before the court a defendant in a representative capacity. As stated, during the hearing, the case of Cowdrey v. Cowdrey, reported in 71 N. J. Eq. (1 Buch.) 353, fully meets that objection. There is no defendant before this court in a representative capacity within the meaning of the statute. Tiie present suit is essentially a suit in rem, a suit purely for the restoration of legal title, and seeks no relief in personam. If it were true, however, that the complainant should be excluded from testifying to conversations between himself and his deceased son, the evidence would yet be ample to establish the facts which I have stated to exist, because the two remaining sons who are still alive have both testified to substantially the same conversations to which the father testified and have fully established the fact, and no objection can arise, so far as their testimony is concerned, based on the ground of a suit against a defendant in a representative capacity.

The other objection on which defendant relies is that the effect of the decree sought is to establish a trust in the deceased defendant, and that the statute of frauds prohibits the establishment of a trust in lands by parol testimony.

An examination of the statute of frauds will disclose that it is not so broad as the statement which I have just made. The statute of frauds will not permit an express trust to be established by parol testimony, but, by its very terms, it excepts resulting trusts. The language of the statute is, as I recall it, that there is excepted from its operation trusts which arise from implications or construction of law. That may not be the language of the statute, but it is substantially the language. Such trusts are not within the statute, and the courts have uniformly held that parol testimony is competent to aid in their ascertainment. Therefore, if this case were a case in which Mr. Thomas, Sr., had caused a deed to be made to a stranger, the consideration having been supplied by Mr. Thomas, the presumption of law would be that the person who supplied the money had supplied it for his own benefit, and not for the benefit of the stranger, that the title follows the consideration, and in such a case the law creates and determines the existence of a resulting trust. That is what the statute refers to as a trust which results from implication or construction of the law, and is therefore one of the trusts which is excepted by the terms of statute. It follows in consequence that where money is supplied by one person to pay for property, the title to which is taken in the name of another, the law permits the person who supplies the money to testify that he supplied the money, and the trust results as a matter of law.

An additional element arises, however, when the conveyance, the consideration for which is paid for a father, is made to a son, daughter, wife or other near relative or dependent; the mere fact of supplying the consideration, in such a case, does not create a presumption of ownership in the person who supplies'the consideration. On the contrary, the presumption is the reverse. The presumption in such a case is that the father supplies the consideration not for his own benefit but for the benefit of the relative; therefore, standing alone, the mere testimony on the part of the father or any other -witness that the father supplied the money will not be sufficient to create a resulting trust, but, on the contrary, such testimony will create a presumptive gift, settlement or advancement. That presumption, however, is a rebut-table presumption; if the presumption of gift, settlement or advancement can be dispelled or overcome by competent evidence, then the conveyance to the son stands exactly on the same plane as a conveyance to a stranger. So, the only real question here now is, whether or not the presumption of gift has been dispelled or overcome by competent evidence. The courts have uniformly held that this presumption* of gift, advancement or settlement is not only rebuttable, but it may be rebutted by any circumstance precedent to the transaction, or contemporaneous with the transaction, or so nearly contemporaneous with the transaction as to form part of the res gestee, but that it cannot be rebutted by circumstances, other than admission of the parties, subsequent thereto.

When conversations between the party who supplies, the consideration, the father, and the party who receives the conveyance, the son, are sought to be introduced into evidence for the purpose of repelling the presumption of gift, the thought necessarily suggests itself that the effect of such testimony is to establish a trust. As such it would be incompetent, but it is competent to establish that it was not a gift, settlement or advancement. In other words, it is competent to repel or rebut the presumption of gift which the law has created, and it will be received for that purpose and for that purpose alone, and if, when received, it is adequate to fully dispel the presumption of settlement or advancement or gift, then the ease stands exactly as it would stand in the case already suggested of a conveyance made to a stranger. In other, words, the testimony in this case is competent for the purpose of establishing, and is ample in quality to establish, the fact that this conveyance was not by the father ordered made to these children as a gift, and the presumption of gift which arose from the relationship is dispelled by that evidence. That brings the case upon the same plane as a conveyance made to a stranger, by money supplied by the complainant, and in such case the law creates or presumes the trust.

It follows that in this case, under the circumstances named, there is no course that can be properly adopted but to reach the conclusion, and make that conclusion effective through whatever decree is found necessary to answer the needs of the complainant, that this legal title, now in the name of the heirs of John Thomas, Jr., is held under a trust to reconvey, upon request, to John Thomas, Sr., and that the entire equitable title to the property is in John Thomas, Sr., and that he is entitled to have the legal title fully restored to him. I will advise a decree of that nature.


author: Beaming, Y. C.

text:
    Abigail D. Scull et al., executrices, &c., v. Howard P. Idler et al.
    [Submitted November 10th, 1911.
    Determined November 27th, 1911.]
    1. A purchaser of a mere equity of redemption in premises covered by a usurious mortgage, who pur-chased subject to the lien of the mortgage, cannot set up usury as a defence to the mortgage.
    2. A mortgagor in a usurious mortgage, who is made a party to a foreclosure suit against a purchaser, subject to the lien of the mortgage, may assert the defence of usury as against a liability for any deficiency.
    8. A bill to foreclose, which alleges that the mortgagor, after the execution of the mortgage, conveyed-to a third person, that whatever interests • the third person .acquired wore subject to the interests of complainant, who is without knowledge whether the conveyance was an absolute one, or whether an interest was reserved in the mortgagor, does not directly aver that the purchaser purchased the equity of redemption subject to the mortgage: and the defence that the mortgage is usurious is available.
    On bill to foreclose mortgage. Hearing on bill and answer.
    The bill is filed to foreclose a mortgage made to complainants’ testator by defendants Lncretia P. Idler and Charles. A. Idler. By an averment of the bill, hereinafter quoted, it appears that subsequent to the date of the record of complainants’ mortgage the mortgaged premises were conveyed by the mortgagors to defendant Howard P. Idler. The mortgagors are made defendants under an averment of the bill to the effect that notwithstanding the conveyance to their son, defendant Charles A. Idler, they may have retained an interest in the mortgaged premises.
    The three defendants above named have answered.. Their answer specifically and sufficiently discloses that the mortgage in question is usurious, and denies no averments of the bill except the averments touching the amount of the original indebtedness.
    Hearing has been had on the bill and answer.

      Mr. William M. Clevenger, for the complainants.

      Mr. II. Starr Giddings, for the defendants.
   Beaming, Y. C.

It has been repeatedly held by the courts of this state that the purchaser of a mere equity of redemption in premises covered by a usurious mortgage, who buys subject ce the lien of such mortgage, cannot set up usury as a defence to the encumbrance; the repudiation of the mortgage by such purchaser would enure to his benefit against the terms of his purchase, and would not enure to the benefit of the original borrower. In Warwick v. Dawes, 26 N. J. Eq. (11 C. E. Gr.) 548, 556, this principle was applied where the purchase was made at a sale under a decree of foreclosure of a second mortgage, the purchaser in that case having made his purchase with reference to the existence of the prior mortgage which he assumed to' be a valid prior encumbrance according to its terms, but which was, in fact, usurious.

This inability of one who purchases the mere equity of redemption to set up the defence of usury against the foreclosure of a mortgage subject to which the purchase was made, is not based upon the idea that the taint of usury has been purged by a conveyance in which'the mortgagor has recognized the usurious mortgage as valid; the defence of usury may still be available to the mortgagor. It would seem that as between the original parties the taint of usury can only be removed by the borrower receiving the full amount called for by the security. Taylor v. Morris, 22 N. J. Eq. (7 C. E. Gr.) 606; Warwick v. Dawes, supra; Trusdell v. Dowden, 47 N. J. Eq. (2 Dick.) 396. It necessarily follows that the original mortgagor, notwithstanding his eonvejíuneé subject to the mortgage, is still entitled to be protected against liability on his bond in the event of a deficiency at sale; and if such mortgagor is made a party to a foreclosure suit against his vendee, the decree will be operative as a bar to such defence on the bond, unless the defence is asserted by him in the foreclosure suit in which he is made a party. This is expressly held in Andrews v. Steele, 22 N. J. Eq. (7 C. E. Gr.) 478.

From the principles above defined it seems to clearly follow that defendant Howard P. Idler, who now holds the legal title-under a conveyance from the mortgagors, is not entitled to the' benefit of the defence of usury if his purchase was in fact a purchase of the mere equity of redemption subject to the lien of the mortgage now held by complainants; and that defendants Charles A. Idler and Lucretia P. Idler, who were the mortgagors and who executed the bond secured by the mortgage now sought to be foreclosed, are entitled to urge in this suit the defence of usury to the end that the decree may not be operative to bar them such defence on their bond.

The bill asserts that these mortgagors, subsequent to the execution of the mortgage now sought to be foreclosed,

“made, executed and delivered unto Howard P. Idler a deed wherein they granted, bargained and sold unto the said Howard P. Idler all the premises heretofore described, but your oratrices charge that whatever interests the said Howard P. Idler acquired by virtue of the said conveyance was under and subservient to the interests of your oratrices.”

The present hearing is upon bill and answer, and the answer makes no denial of the above averment. This averment is not,, however, in my judgment, the equivalent of a positive and direct averment that a mere equity of redemption was in fact purchased by Howard P. Idler expressly subject to a lien for the amount appearing to be due on the mortgage now held by complainants, or in a manner in which the purchaser necessarily deducted from the purchase price the amount appearing to be due on that mortgage. That element is the one which must exist to deny to the purchaser the defence of usury; under the averments of the bill that element may not have been present in the transaction. This is made clear in the case of Hackensack Water Company v. DeKay, 36 N. J. Eq. (9 Stew.) 548, in which Mr. Justice Depue, speaking for the court of errors and appeals, said: “There is a class of cases in which a purchaser taking title subject to an encumbrance prior in point of time, is precluded from disputing its validity. DeWolf v. Johnson, 10 Wheat. 367; Dolman v. Cook, 14 N. J. Eq. (1 McCart.) 56; Conover v. Hobart, 24 N. J. Eq. (9 C. E. Gr.) 120, are cases of this class. In those cases the lands conveyed were subject to mortgages claimed to be void for usury. In DeWolf v. Johnson, the mortgagor had conveyed the premises expressly subject to the mortgage of DeWolf; and in Dolman v. Cook and Conover v. Hobart, the mortgagor’s conveyances of the mortgaged premises were expressly subject to the mortgages, and it so appeared in the deeds of conveyance. In each of these cases, the grantee, having accepted a conveyance under the mortgagor, subject in express terms to the payment of the usurious mortgage, was held to be estopped from contesting its validity. The theory on which cases of this class are founded is that the mortgagor having elected to affirm the usurious mortgage, by selling the mortgaged premises subject to the mortgage, the purchaser, by his contract as expressed in his deed, took an equity of redemption only, and therefore could not dispute the validity of the mortgage, and thus obtain an interest in the land which the mortgagor never intended to transfer to him. Shufelt v. Shufelt, 9 Paige 137; Post v. Dart, 8 Paige 639; Green v. Kemp, 13 Mass. 515; Morris v. Floyd, 5 Barb. 130. But this principle does not apply to sales by officers under judicial process. A purchaser at a sheriffs sale, either under an execution at law, against the mortgagor or at the foreclosure sale of a second mortgage, may defend against a prior mortgage on the premises on the ground of usury, although in fact by his purchase he acquired the property subject to whatever prior encumbrances there might be upon it. Brolasky v. Miller, 8 N. J. Eq. (4 Halst.) 789; S. C., 9 N. J. Eq. (1 Stock.) 807; Pinnell v. Boyd, 33 N. J. Eq. (6 Stew.) 600.” The averments of the bill cannot, I think, be properly regarded as more than a general averment that the rights of complainants under the mortgage are superior to the rights of defendant Howard P. Idler, as purchaser, in that the purchase by the latter was subsequent to the date of the registration of the mortgage now held by complainants; this becomes even more apparent by a consideration of the paragraph of the bill above quoted in connection with a subsequent paragraph of the bill in which an averment is made to the effect that complainants are without knowledge whether the conveyance to Howard P. Idler was an absolute conveyance or whether that conveyance was made through some secret understanding whereby an interest was reserved in the vendors.

As the mortgagors were made defendants and the answer filed in behalf of the mortgagors and the purchaser set forth that only the sum of $1,800 was actually loaned, I think no decree in excess of that amount can be properly entered on the bill and answer.


text:
    Casper G. Ware v. Francis B. Mulford et al. Melissa Mulford’s Executors v. Casper G. Ware.
    [Heard and determined December 28th, 1911.]
    An illiterate woman, approaching ninety years of age, and suffering from a broken hip, and as to whose mental impairment by age and illness the evidence was conflicting, made a voluntary gift to a relative of all her property, except a pension of $144 per year, and unproductive real estate, valued at about $600 or $700, at a time when it was most needed, and was operative to render her an object of charity.—Belli that, in the absence of proper independent advice as to the character of the gift, even though the donee had not sought the gift, nor known of it in advance, equity would set it aside.
    On bill, &c., to foreclose mortgage. On bill, &c., to set aside assignment of mortgage. (BQtli eases heard together.)

      Mr. George Ebner and Mr. John W. Wescott, for Casper G. Ware.

      Messrs. Hampton £ Fithian, for Melissa Mulford’s executors.

      Mr. James 8. Ware, for the sundry creditors.
   Leaming, Y. C.

I am convinced that this case is controlled by the principles defined in Slack v. Rees, 66 N. J. Eq. (21 Dick.) 447, and Post v. Hagan, 71 N. J. Eq. (1 Buch.) 234.

As pointed out in the cases cited the rule requiring independent advice to support a gift of the nature and under the circumstances of the one here in question arises from the presumption that a donor, circumstanced as the donor in this case, has not appreciated the irrevocable character of her act or has not foreseen its legal consequences to herself unless first fully advised by a disinterested person capable of so advising. The purpose of the rule, as there, stated, is not so much to afford protection to the donor against the consequences of undue influence exercised over her by the donee as it is to afford protection against the consequences of voluntary action on her part, induced by the existence of the relationship between them, the effect of which, upon her own interests, she may only partially understand or appreciate. It necessarily follows that it is not essential to the application of this rule that the donee should seek the gift or even know of it in advance.

The gift here in question did not include all of donor’s property. It left her with a pension of $144 per year and unproductive real estate in value about six or seven hundred dollars. But the gift comprised the bulk of donor’s estate and was made at a time when it was most needed and was operative to render her an object of charity.

This view renders it unnecessary to pass upon the claim made in behalf of complainant that donor was mentally incapable of making a conveyance of property. It is obvious, however, that the necessity for independent advice in a case of this nature increases as the mental capacity decreases. The evidence discloses that donor was an illiterate woman, and at the date of the gift here in question was approaching ninety years of age, and was suffering from a broken hip with little, if any, prospect of recovery. The testimony is in almost irreconcilable conflict as to the extent to which her mind had become impaired by age and illness, but, at least, sufficient appears to suggest grave doubt whether she could have adequately appreciated the consequences of what she did even had she been carefully advised on the subject.

1 am obliged to advise a decree setting aside the gift.