author: Yrbdbnburgh, J.

text:
    John J. Ketchum, appellant, v. Henry G. Bell et al., respondents.
    [Argued March 15th, 1907.
    Decided June 17th, 1907.]
    Parties defendant in the actual possession of real property, while holding thereto the relation, of mortgagees, are chargeable, on a bill filed to redeem, and for an accounting of rents and profits received, with the fair annual value of the premises so occupied as an occupation rent.
    On appeal from a decree of the court of chancery.
    In a suit brought by John J. Ketchum against Henry C. Bell and others to redeem mortgaged premises, setting up the execution of an absolute deed from complainant to defendant, accompanied by a written agreement by the latter to reconvey the premises and account for rents received, a decree was made July 10th, 1905, declaring that complainant was entitled to redeem, and that defendant should account for rents and profits received, and that the cause be referred to a special master to ascertain (to quote the pertinent words of the decree)
    “the fair rental value of the part of the said premises actually occupied by the defendants, and the amount which has been received by the defendants for rents and profits of said premises from the twenty-fifth day of July, eighteen hundred and ninety-six, or which might have been received by them but for their willful default, and to charge them with the same; * * * and what shall be coming on account of said occupation and rents and profits is to be deducted out of what shall be found due to the defendants for principal and interest on said mortgage indebtedness, and said amounts paid by the defendants, and that what upon the balance of said account shall be found due to the defendants for said principal and interest and amounts so paid out by them for the complainant, the complainant do pay,” &c.
    The master, on May 10th, 1906, made his final report to the court of chancery, containing, inter alia, the following finding, viz.:

      “First. That there have been no rents and profits which might have been received by the defendants but for their willful default, and that they are therefore hot chargeable with anything on that score.

      “Second. I find that the fair rental value of the part of the said premises actually occupied by the defendants, and with which they should be chargeable, is as follows: For occupation of office-room, from August first, eighteen hundred and ninety-six, to January first, nineteen hundred and two, at sixty dollars a year, the sum of three hundred and twenty-five dollars.”
    In the striking of the balance the report fixes the net sum of $8,699.36 as due to the defendants from the complainant, after allowing all credits due the latter on the 1st day of January, 1906. To this report the complainant filed certain exceptions, together with the following:

      “Second. Because the master’s report does not charge the defendants with occupation rent for an office-room of value of sixty dollars ($60) a year for nine years and five months,” &c.
    Subsequently, on June 4th, 1906, the court of chancery, by the second and final decree, ordered that all the exceptions of the complainant be overruled and disallowed, and the master’s report be approved and confirmed. From this last decree the complainant has appealed.

      Mr. John J. Keichum, for the appellant, fro se.

      Mr. Addison Ely, for the respondents.
   The opinion of the court was delivered by

Yrbdbnburgh, J.

(after reciting as above).

Among the exceptions presented for review is the correctness of the master’s report, and the decree confirming it, in refusing to charge the defendants with the occupation rent during the entire period of their occupancy of the office-room in controversy. While the master, correctly, we think, under the evidence before him, fixed the fair yearly rental value at $60 a year ($5 per month) for the room occupied by defendants, he has limited the period of such liability for occupancy to January 1st, 1902. We think the testimony, not seriously questioned nor controverted below, impels the conclusion that the defendants are also chargeable for such occupation rent for a longer period, namely, from January 1st, 1902, to the date of the master’s final report. Specification at length of this testimony here is unnecessary. The complainant, in substance, testified that the defendant association had possession of a room or office in the complainant’s building from August, 1896, until the date of the hearing before the master; that the defendants carried on the business of selling trusses for the relief of persons suffering from hernia in such room, and that such business was conducted there from the latter part of the year 1896 continuously up to the time of the giving of his testimony. In this he was supported, to some extent, by the defendant Bell himself, and also by the defendants’ clerk and witness, Stoddard, who sustained complainant’s statements, testifying that the stock of trusses was so arranged and used in this room upon shelving (put up by him there permanently) that when a person applied to him for trusses he could go to the shelves and get the exact number and size wanted, and fit such person with the requisite truss. This evidence was, we think, sufficient to establish the fact of the nature, duration and continuity of defendants’ possession and use of the premises in question. The defendants’ legal and equitable situation under the deed and contemporaneous written agreement to reconvey is analogous to that of a mortgagee in possession of the mortgaged premises. That the deed and agreement, construed together, constituted a mortgage on the premises was not disputed before the court below. The respondent’s counsel, in his brief before this court, concedes that such effect was there “freely admitted,” and does not controvert it in his brief in this court.

The equitable rule is indisputably settled that such a grantee in actual possession is chargeable as a mortgagee in possession with reasonable rent, or the fair annual value of the occupied premises as an occupation rent. 1 Hilliard Mort. 450; 3 Pom. Eq. Jur. § 1216, and cases cited in note 2 at bottom; Dawson v. Drake, 30 N. J. Eq. (3 Stew.) 601; S. C., on appeal, 30 N. J. Eq. (3 Stew.) 733; Demarest v. Berry, 16 N. J. Eq. (1 C. E. Gr.) 481; Leeds v. Gifford, 41 N. J. Eq. (14 Stew.) 464; Moore v. Degraw, 5 N. J. Eq. (1 Halst.) 346; 4 Kent Com. 165.

The other exceptions under review we think were properly decided below, but the complainant’s exception to the master’s report to the extent above indicated should have been sustained. The decree appealed from should be reversed.

For affirmance—None.

For reversal—Ti-ie Chief-Justice, Garrison, Fort, Hendrickson, Pitney, Swayze, Reed, Trenchard, Bogert, Vre-DENBURGI-I, VrOOM, GREEN, GRAY, DlLL-14.


source: Caselaw Access Project

author: Dill, J.

license: Public Domain

text:
    John Vanderbilt, appellant, v. Henry Mitchell, medical superintendent; Myra L. J. Vanderbilt and William Godfrey Vanderbilt, respondents.
    [Argued March 18th, 1907.
    Decided June 17th, 1907.]
    1. A certificate of birth, declared by section 13 of the act of 1888 (P. L. 1888 p. 52) to be entitled to be received in evidence to prove the facts therein contained, was placed of record with the medical superintendent of the bureau of vital statistics. The certificate was made by the physician present at the birth of the child, and, as required by said statute, among other things set forth, as far as the facts could be ascertained by him, the date and place of birth of the child, the name of each of the parents, the maiden name of the mother and the name of the child. In making the certificate the physician was imposed upon by the false statements of the mother as to the paternity of the child, and certified, contrary to the fact, that the complainant was the father of the child.— Held, that a court of equity has jurisdiction- (1) to cancel such false certificate, or so much thereof as relates to and charges upon the complainant the paternity of the child; (2) to require the medical superintendent of the bureau of vital statistics to endorse the fact of the cancellation upon the record; (3) to enjoin the use of the' original certificate, or copies thereof, as evidence; and (4) to enjoin the mother and the child from claiming for said child, by virtue of said certificate, the status of a lawfully-begotten child of the complainant.
    2. Principles on which equitable jurisdiction is entertained in cases of this nature discussed.
    3. Vanderbilt v. Mitchell, 11 N. J. Eq. (1 Buell.) 682, reversed.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 71 N. J. Eq. (1 Buck.) 6SB.

    The bill in this case is filed by John Vanderbilt against Myra L. J. Vanderbilt, his wife, William Godfrey Vanderbilt, an infant, appearing herein by guardian, and Henry Mitchell, as medical superintendent of the bureau of vital statistics of the State of New Jersey.
    The complainant charges that he is the husband of the defendant Myra L. J. Vanderbilt; that they were married in this state in February, 1901, and then were, and are now, residents of this state; that they lived together as man and wife for two months after the marriage, and no longer; that from September, 1901, to July, 1903, the wife and a third party named lived together in adultery at a place designated in the bill, and that during said period complainant had no matrimonial access to his wife; that as a result of the adulterous intercourse there was born to the said wife, in the State of New Jersejr, on or about the 20th day of October, 1903, a male child, by her named William Godfrey Vanderbilt, which infant is one of the defendants herein; that the complainant is not the father of the child, but that the infant is an adulterine bastard.
    The bill charges that the defendant Myra L. J. Vanderbilt, upon the birth of said infant, falsely stated to the attending physician that the complainant was the father of the child, and that the child was the lawful issue of said marriage between herself and the complainant; that she made these false statements to induce the phjrsician to insert them in the birth certificate, which the physician did, transmitting the certificate to the bureau of vital statistics, where it was duly filed and recorded.

      The further allegation is that the defendant Myra L. J. Vanderbilt, by ex parte statements, created a public record false in fact, but evidential “in any court of this state to prove'” that the complainant is the father of the infant defendant; that under and by virtue of this fraudulent record both the mother, and the child through its mother, assert and seek to maintain for the said child all the rights of a legitimate son of the complainant, and to enforce all the liability of the complainant to the said infant, as if he were the lawfully-begotten son of the complainant.
    The bill also avers, in adequate terms, the existence of a testamentary trust created by the mother of the complainant, by the terms of which certain real property in the State of New York is vested in certain trustees, from which the complainant receives an income during the lifetime of his nephew and his niece, and at the decease of both the nephew and the niece, under the provisions of the existing trust as stated in the bill, the corpus of the estate is to be distributed to certain persons, in which distribution the complainant, if alive at the time, or otherwise his lawful heirs or devisees, would share.
    The allegation is that the complainant is sick, infirm and stricken with a fatal illness, and that it is the purpose of the defendants, the wife and the infant, to use this record, false in fact, after the death of the complainant and loss of testimony, to enable the infant to assert his claims to property as the lawful heir of the complainant.
    The relief sought is the cancellation of this fraudulent record and the destruction of its evidential character as to the paternity of the infant; in effect, a decree of nullity as to this status of parentage thus prima facie created and fraudulently recorded against the complainant. The complainant seeks a permanent injunction restraining both the mother and the child from claiming, under this certificate, for the said child, the status, name, property or privilege of a lawfully-begotten child of the complainant.
    An injunction is also prayed for against the issuing, by the state medical superintendent, of copies of this fraudulent record, and against Myra L. J. Vanderbilt and William Godfrey Vanderbilt from using or offering in evidence the record, or certified copies thereof, or in any way availing themselves of its evidential character.
    The court below sustained a demurrer to the bill, on the ground that the case did not fall within any recognized head of equity jurisprudence, that no property right is shown to be involved, and that a court of equity could not take cognizance of personal rights or redress personal wrongs not affecting property.

      Messrs. McDermott ■& Enright, for the appellant.

      Mr. Leroy A. Gibby and Mr. Harry V. Osborne, for the respondents.
   The opinion of the court was delivered by

Dill, J.

No one of the allegations of the bill of complaint presents an exception to the general rule that the facts alleged must be regarded as admitted under a demurrer, as must all the facts which can be implied by a reasonable and fair intendment.

A court of equity is the only tribunal which can afford adequate relief to the complainant under the peculiar and somewhat novel circumstances of this case, and that regardless of whether certiorari or mandamus would afford him relief in certain respects.

The complainant properly invokes the aid of a court of equity, on the ground of its inherent jurisdiction over frauds, to annul and cancel a fraudulent certificate, based upon the false statements of the wife as to the paternity of the child, filed by a public officer, which certificate, by force of the statute, has such evidential character that it is prima facie evidence of the facts therein contained, and which, unless attacked by competent evidence, becomes conclusive to prove the facts therein recorded.

As we view the gravamen of the bill, the complainant does not seek a decree dissolving any existing valid status, thereby altering the actual relation of the parties, but a judicial determination of the matter of the alleged status of paternity prima facie created by this certificate, to determine that such alleged status does not exist and to give adequate relief.

Tn other words, the theory upon which the equity of the bill rests is not to establish a status, or, on the other hand, to disestablish a status, except for the special object of determining whether the information given to the physician by the wife was fraudulent, and whether thereupon the certificate itself, so far as it imputes to the complainant the paternity of the child, was fraudulent.

The relief sought is a decree expunging from the public records of this state, on the ground of fraud, the certificate of birth, or so much thereof as relates to and charges upon the complainant the paternity of the child, with an injunction against all parties who might issue copies or use such copies or the original certificate as evidence of such paternity.

The character of the recorded certificate, by whom prepared and filed, and its force and effect as evidence, are fixed by statute. P. L. 1888 p. 52. See, also, P. L. 1900 p. 370 ch. 150 §§ 28, 29.

The act of 1888, requiring the filing of certificates of birth, makes it the duty of the attending physician, within thirty days after a birth, to make, and cause to be transmitted to the superintendent of the bureau of vital statistics, a certificate thereof, which certificate shall set forth particularly, as far as the facts can be obtained by the physician, among other things, the date and place of birth, the name of each of the parents, the maiden name of the mother, the name of the child, and the name of the attending physician, and by section 13 of this act it is provided that

“any such original certificate, or any copy thereof certified to be a true copy under the hand of said medical superintendent, shall be received in evidence in any court of this state to prove the facts therein contained.”

It is important to note that the legislature evidently had not in mind the possibility that this statutory record might be made an instrument to effectuate a fraud. Section 11 of the act of 1888 (P. L. 1888 p. 59) provides that any minister of the gospel, magistrate, physician, midwife, or other person, who shall knowingly make any false certificate of marriage, birth or death, shall be deemed guilty of a misdemeanor, but there is an absence of statutory provision for the correction, modification or annulment of the record in case either of fraud or mistake.

As to the force and effect of the certificate, whether it is an adjudication by the physician of the facts which it recites, or whether it is a mere statement by such physician of facts which have been recited to him, is unnecessary for us to determine. If it be an adjudication, then, so far as the determination of the father of the child is concerned, it was obtained by a false representation made to the officer by the mother. If, on the other hand, it is a mere recital by the physician of a statement made to him by the mother, then that false statement has, by force of the statute, become spread upon the record of the state as the truth.

In either event, the complainant has been fraudulently recorded as the father of this child, and the recorded statement is evidential against him in all matters where the question of the paternity of the child is involved. In an action to compel him to support the child, or an action for necessaries furnished to the child, a certified copy of this record would be prima facie evidence that would tend to establish his liability, not only in this state, but in other jurisdictions as well. Speaking generally, this certificate is also evidence upon the question of who shall inherit an individual’s estate, a question of vital importance to every man, having also a direct bearing upon the possible issue of a second marriage should he desire to contract one. But with this topic we deal later.

Upon the question of equity jurisdiction it may be said that the jurisdiction of a court of equity to cancel, annul and set aside judgments on the ground of fraud, as well as certificates and determinations of public officers charged with judicial or executive functions, is settled:

The principle is well stated in Johnson v. Towsley, 13 Wall. (U. S.) 72, as follows:

“There has always existed in the courts of equity the power in certain classes of cases to inquire into and correct mistakes, injustice and wrong, in both judicial and executive action, however solemn the form which the result of that action may assume, when it invades private rights, and by virtue of this power the final judgments of courts of law have been annulled or modified, and patents and other important instruments issuing from the crown, or other executive branch of the government, have been corrected or declared void, or other relief granted.”

It was held in Garland v. Wynn, 20 How. (U. S.) 6, that courts of equity have power to review a contested claim to a right of entry to land under the Preemption laws, and to set aside the decisions of the register and receiver, confirmed by the commissioner in a case where they have been imposed upon by false swearing.

Jurisdiction in equity was also entertained to set aside an adjudication of a register authorizing an entry upon land on proof “showing that the entry was obtained by fraud and the imposition of false testimony on those officers, as to settlement and cultivation.” Lytle v. State of Arkansas, 22 How. (U. S.) 193. See, also, Dringer v. Receiver of Erie Railway, 42 N. J. Eq. (15 Stew.) 573, Kirkpatrick v. Corning, 40 N. J. Eq. (13 Stew.) 241.

Where a public record is pronounced fraudulent, the relief is not confined to an injunction forbidding its use, but the decree may direct a cancellation of the record upon the face thereof. Fenton v. Way, 44 Iowa 438; Jones v. Porter, 59 Miss. 628; Randozzo v. Roppolo, post.

An officer making or having in his possession the record may be made a party to a suit to set it aside, although he is not charged with any fraud and is faithfully performing his public duties, and majr be enjoined by the decree.

In McClurg v. Terry, 21 N. J. Eq. (6 C. E. Gr.) 225, the complainant sought a decree declaring that there was no marriage. The justice of the peace “meditated returning a certificate of the marriage to be recorded before the proper officer.” The bill sought not only “to have the marriage declared a nullity,” but also “to restrain the justice from certifying it for record” (p.227).

It may be conceded that the public officer has faithfully performed his public duties, and yet the certificate or determination or patent or judgment may be tainted with fraud by the iniquity of private parties.

The jurisdiction of the court of chancery in cases of fraud is as broad and far-reaching as the forms, the devices and the ramifications of fraud can extend, and no public record will be allowed to stand as evidential in the face of facts showing in a direct proceeding in a court of equity that the certificate is false, conceived in fraud and with deliberate intent to use it in the future to wrongfully establish the paternity of a child, create a liability for maintenance and support, and rob the lawful heirs of a decedent of their inheritance.

If the court has jurisdiction to set aside adjudications of judicial officers on the ground of fraud, it necessarily follows that a public record, the essential facts of which are obtained by ex parte statements, without the sanction of an oath, and prepared by an officer, whether performing a ministerial or judicial function, may be annulled and rendered innocuous by a decree of á court of chancery, especially where private rights are invaded and where the forms of law are used to perpetrate a fraud, establish an unfounded claim or injuriously affect or threaten future vested or contingent estates.

A well-recognized jurisdiction of a court of equity is to compel the surrender and cancellation of instruments, such as notes, where they have been procured by fraud. It cannot be that a court of .equity has jurisdiction, on the ground of fraud, to compel the cancellation of an obligation for the payment of a specified sum of money, and has not the power to compel the cancellation of an instrument, by fraud made a public record, which unjustly places upon the complainant the burden of -a prima facie status of paternity and exposes him to the liability to support and maintain the infant.

The complainant is entitled to be relieved of the fictitious status of father so far as it is prima facie created by this certificate, and which may reasonably be presumed to impose burdens upon him, both present and future. To prevent the injustice of his being forced to pay unfounded claims out of property either acquired or to be acquired, and to obviate the necessity, on the part of the complainant or his heirs, of meeting from time to time, in various suits and proceedings, this same issue, viz., the validity and evidential force of this certificate, equity interferes in presentí, on the doctrine of quia iimeb, that at some time in the future, after the death or departure of witnesses or other loss of evidence, the party or his privies may be menaced by the outstanding instrument.

The effect of a decree of nullity in this case, when entered upon the record, would be notice to all the world that this public record was fraudulent and was not entitled to be received in evidence in any court of this state to prove the facts therein contained, or entitled to full faith and credit in other states under the federal constitution.

The question in this case is not whether the court of chancery would have power, upon a bill properly framed, to determine that the complainant was not the father of the child, so as to preclude forever a trial of that question. The issue here is narrower, and the effect of a decree cancelling the birth certificate, finding that the statements of the wife to the physician that the complainant was the father of the child were false, would not forever preclude a trial of the question of paternity. The effect of the decree would be to destroy the evidential character of this certificate, so that no one would be entitled thereafter to use it as evidence upon such issue.

The equity, so far as we are now discussing it, stops with the destruction of the fraudulent piece of evidence and with an injunction against its use.

In this state, in the leading case of Carris v. Carris, 24 N. J. Eq. (9 C. E. Gr.) 516, the court of chancery is declared to have inherent jurisdiction to annul the status of marriage on the ground of fraud, entirely independent of the statute of New Jersey which regulates the subject of marriage and divorce. T'he same principle was followed by Chancellor Zabriskie in McClurg v. Terry, supra; by Vice-Chancellor Pitney in Rooney v. Rooney, 54 N. J. Eq. (9 Dick.) 231, and by the present chancellor in Crane v. Crane, 62 N. J. Eq. (17 Dick.) 21.

In these cases jurisdiction was assumed upon the ground that marriage is a civil contract and that courts of equity have always entertained suits to set aside contracts on the ground of fraud.

We have referred to the doctrine of the 0arris Case, and have cited with approval the McGlurg, Rooney and Grane Gases, as illustrating the view which our courts take of the doctrine of equitable jurisdiction as contradistinguished from the narrower English rule.

The rule of the Garris Case has been generally followed in this eountiy, but in England it has been discussed and squarely rejected. Moss v. Moss, L. R. Prob. 263 (1897).

The court below held that the remedy of establishing and destroying personal status does not belong to the original jurisdiction of chancery, and, so far as it exists, is wholly of statutory origin. This is supported by certain English decisions, but is contrary to the principle laid down in the Garris Case and is not the law of this state.

Therefore, although this status of the complainant is an issue, the court of chancery, independent of any statute, has jurisdiction.

If it appeared in this case that only the complainant’s status and personal rights were thus threatened or thus invaded by the action of the defendants and by the filing of the false certificate, we should hold, and without hesitation, that an individual has rights, other than property rights, which he can enforce in a court of equity and which a court of equity will enforce against invasion, and we should declare that the complainant was entitled to relief, and to a decree establishing the truth as to the paternity of the child, relieving the complainant of the intolerable burden prima facie put upon him by the false record and preventing the wife from perpetuating a fraud upon the husband. Pavesich v. New England Life Insurance Co., 122 Ga. 190, adopting the dissenting opinion of Justice Gray, and rejecting the doctrine laid, down by the majority in Roberson v. Rochester Folding Box Co., 171 N. Y. 538, a case seldom cited but to be disapproved, the force of which was subsequently removed by statute. Laws of N. Y. 1903 p. 308 ch. 132.

But it is not necessary to place the decision upon this ground, because there are sufficient facts presented to enable us to put this case upon the technical basis that the jurisdiction we are exercising is the protection of property rights, and to declare that the complainant is entitled to restrain the unwarranted use of his name as the father of the child upon the ground that such action is calculated to injure his property, and the probable effect of it will be to expose him to risk or liability.

In many cases courts have striven to uphold the equitable jurisdiction upon the ground of some property right, however slender and shadowy, and the tendency of the courts is to afford more adequate protection to personal rights and to that end to lay hold of slight circumstances tending to show a technical property right. See note, 37 L. R. A. 787.

It sufficiently appears that the complainant’s property rights now existing, and the contingent interest of himself and of other parties, are seriously menaced by the unlawful and unwarranted use of the complainant’s name as the father of the child in the recorded birth certificate.

It is indisputable that the complainant is now subject to the risk of liability for the support and maintenance of the infant. If, through the mental incapacity of the complainant, ox in case of his death, inability or neglect to produce evidence of facts as to the paternity of the child, the certificate of birth should not be contradicted, it would afford evidence of the facts therein contained and the complainant’s liability would become fixed.

The complainant is confronted with the risk of prosecution during his lifetime/ and with a strong probability of litigation over his will or his property in case of his death. If a court of equity may interfere to prevent the unlawful use of a person’s name in a case where there is no evidence of 'actual fraud, how much more should the court assume jurisdiction in a case of actual fraud involving moral turpitude.

The jurisdiction of a court of equity to interfere where there has been an unwarranted use of a man’s name, the probable effect of which is to expose him to risk of future liability, has been sustained by authority. In England the court of chancery, even under the more restricted rule that there prevails, sustained an injunction to restrain the unauthorized use in a prospectus of a man’s name as a trustee of a corporation. Routh v. Webster, 10 Beav. 561. The unauthorized use of the name of “The Times” newspaper in London was also restrained by parties engaged in the sale of cycles. Walter v. Ashton, L. R. 2 Ch. Div. 282 (1902).

In each of these cases an injunction was granted because the unauthorized use of the plaintiffs name was calculated to injure his property and to expose him to risk of future liability. In neither case was a present property right actually prejudiced, but only threatened and liability only anticipated.

In Routh v. Webster, supra, the master of the rolls, Lord Lang-dale, said:

“I think that the plaintiff is entitled to the injunction. I have no doubt that the plaintiff never did consent to be a trustee. * * * The name of Mr. Routh, who desired to have nothing to do with this concern, has been published to the world as a trustee; his name was also used at the bankers; and though he may not be subjected to the duties of trustees, yet it is plain that he is exposed to some risk by the unauthorized act of the defendants in using his name.”

In Prudential Assurance Co. v. Knott, L. R. 10 Ch. Ap. Cas. 142 (1875), Lord Cairns approved Bouth v. Webster in these words:

“That case appears, if I may say so, to have been quite rightly decided. The difficulties in which the plaintiff might have been placed * * * are obvious, and he was held entitled to restrain, not any libel, for there was no libel, but that improper and unauthorized use of his name.”

In Walter v. Ashton, supra, Justice Bryne said:

“The principle is clear enough; the court does not grant an injunction to restrain the use of a man’s name simply because it is a libel or calculated to do him injury; but if what is being done is calculated to injure his property, and the probable effect of it will be to expose him to risk or liability, then, if I rightly understand the law of this court, an injunction is the proper remedy.”

Í Eurthermore, this case comes within the well-settled rule that fa court of equity will prevent the threatened invasion of property rights and protect a party from exposure to the risk of litigation and liability.

It is clear that the complainant has a property interest under his mother’s will in certain specific real estate in New York City, consisting not only of an income for life, but of a vested remainder in a certain undivided share of the real estate in question.

This vested remainder is, under the real property law of New York, as a future estate, descendible, devisable and alienable in the same manner as an estate in possession. Real Prop. L. (N. Y.) §§ 26, 27, 30, 49.

There is more than a “tangible probability,” to use the phrase employed in Walter v. Ashton, supra, that a claim will be made by or in behalf of the infant upon the estate of the complainant in the event of his. death, whether he leaves a will or dies intestate. His right to make absolute disposition of his estate by will is menaced by the fraudulent record. His property is exposed to the risk of litigation after his death to the detriment of his lawful heirs.

If he desires to leave his property, as an entirety, under the law of New York, where the land is situated, to charity, by making a devise to any benevolent or charitable society or institution his will may be attacked, not upon any ground of mental incapacity, but upon the ground that he has devoted more than one-half part of his estate to a charitable institution, in violation of the statute of New York, which prohibits such a disposition where a person leaves a husband, wife, child or parent. See Rev. Stat. of N. Y. (Birdseye's ed., 1901, vol. 3) tit. "Wills,” § 25 p. 4022.

The jus d&sponendi of a testator is a property right (O’Neill v. Supreme Council, American Legion of Honor, 70 N. J. Law (41 Vr.) 411); and one which should be protected by a court of equity from a threatened or anticipated attack.

The court below suggested that the inherent power of a father to make a will would protect him against this contingency. With this we cannot agree. Courts not infrequently set aside wills on the application of heirs-at-law, and this infant defendant, in attacking the will of the complainant, might succeed in having it set aside on the ground of the complainant’s insane delusion in believing him to be the son of another, as was attempted in the case of Smith v. Smith, 48 N. J. Eq. (3 Dick.) 566, and might prove that this was a delusion by the production of the very record which is now attacked.

If he dies without lawful issue he may dispose of his property absolutely, but the Few York statutory limitation above referred to, if he gave all of his estate to charity, might be used by the infant to invalidate his full intention, wholly independent of any question of mental incapacity or undue influence.

If he dies intestate, the child may institute an action of ejectment against his heirs, and subject them to litigation, when witnesses are dead or other evidence unavailable to contradict the certificate of birth.

The rights of his heirs-at-law should not be overlooked. The complainant is under the strongest moral obligation to leave no taint upon the inheritance, if by any act of his he can blot out the stain and prevent false and fraudulent claimants from obtaining-possession of his property, to the exclusion of his relatives by blood. q

The absence of precedents or novelty in incident presents no obstacle to the exercise of the jurisdiction of a court of equity.

The case presented is novel in incident, but not in principle; but it is no objection to the' exercise of jurisdiction that in the ever-changing phases of social relations a new case is presented and new features of wrong are involved.

As said by Lord Hardwicke, in his letter to Lord Names on the principles of equity, dated June 30th, 1759:

“Fraud is infinite, and were a court of equity once to lay down rules, how far they would go, and no farther, in extending their relief against it, or to define strictly the species or evidence of it, the jurisdiction would be cramped and perpetually-eluded by new schemes which the fertility of man’s invention would contrive.” Parkes’ Hist. Ct. Ch. 508.

Chancellor Cottenham, in Wallworth v. Holt, 4 Myl. & C. 619, said:

“I think it the duty of this court [meaning equity] to adapt its practice and course of proceeding to the existing state of society, and not by too strict an adherence to forms and rules, established under different circumstances, to decline to administer justice and enforce rights for which there is no other remedy."

Paraphrasing the language of Justice Herrick, in Green Island Ice Co. v. Norton, 105 App. Div. (N. Y.) 331, the jurisdiction of equity is constantly growing and expanding, and relief is now granted in cases where formerly the courts would not have thought for a moment of so doing. From time immemorial it has been the rule not to grant equitable relief where a party praying for it had an adequate remedy at law, but modern ideas of what are adequate remedies are changing and expanding, and it is gradually coming to be understood that a system of law which will not prevent the doing of a wrong, but only affords redress after the wrong is committed, is not a complete system, and is inadequate to the present needs of society.

As for precedents: In a New York case the defendant, having procured from his wife, by fraud, a confession on her part of adultery, commenced an action to divorce her, upon the ground of that adultery. The wife invoked the equitable jurisdiction of the court to restrain the use of such confession as evidence in the then pending divorce action. The statute of New York at that time forbade husbands and wives to be sworn as witnesses in actions for divorce upon the ground of adultery, and hence, the wife would not have been able, in the divorce action, to overcome the evidential effect of the written confession by showing that it was procured by fraud and duress. A demurrer was interposed in the equity suit, upon grounds similar to those urged here, viz., that there was no head of equity jurisdiction under which such relief could be granted, and that there was no basis for the interposition of equity to enjoin the use of the written confession, or any copies thereof, as evidence. The court overruled the demurrer, and the opinion of that eminent jurist, the late Mr. Justice Yan Brunt, is not only interesting, but pertinent as holding to the contrary of the ruling below in the case at bar. The court held that novelty in incident was no barrier to equitable jurisdiction; that if such were the rule, gross injustice, under the guise of forms of law, might be perpetrated, and further, that it was quite within the power of a court of equity, in ease of fraud, to broadly restrain the use of documents as evidence. Callender v. Callender, 53 How. Pr. (N. Y.) 364, 365; see Meldrum v. Meldrum, 11 L. R. A. 65, 70.

We find in New York also a case where a woman went through the form of a marriage ceremony with a man who personated the plaintiff. This was done at the instance of the woman. The priest performing such marriage ceremony filed his certificate of a marriage between the woman and the plaintiff with the bureau of vital statistics, and thereupon the woman obtained a transcript of such record, and caused the same to be lodged and filed with the authorities in the province of the plaintiff’s birth in Italy. The purpose of the woman was to claim, at some time in the future, to be the plaintiff’s wife, or his widow after his death. These were the findings of fact of the supreme court.

The plaintiff brought his action in equity, and made parties defendant the woman, Francesca Eoppolo, and Thomas Darling-ton, as commissioner of health of the city of New York, who was, under the law of New York, the custodian of the records of marriages.

The statute of New York relating to the making and filing of marriage certificates (2 Birdseye’s Rev. Stat. 2810 § 22, as amended by the Laws of 1904 p. 991 ch. 392) is, in essential particulars, the same as the statute of New Jersey (P. L. 1888 p. 52), and the marriage certificate had practically the same evidential character as the birth certificate in this case.

The supreme court held (opinion by Justice Maddox) that the case was within the jurisdiction of a court of equity, and judicially determined and decreed that the plaintiff was not, as stated in the certificate filed, married to the defendant; that, as to the plaintiff, the pretended marriage was a nullity; that

“the defendant Francesca Roppolo be and she hereby is perpetually restrained and enjoined from claiming or representing herself to be the wife of the plaintiff herein, or from claiming any right and interest in and to his property and estate; * * * the defendant Thomas Darlington, as commissioner of health of the city of New York, be and he hereby is directed to endorse upon the said certificate of marriage a reference to this decree.” Randozzo v. Roppolo (New York Supreme Court, Kings County), not yet reported; judgment entered July 14th, 1906.

This case carries with it not only the weight of a precedent, but shows the tendency of courts of equity to intervene to prevent the infringement of personal rights.

Finally, the technical basis of the jurisdiction we are exercising is the protection of property rights. The equitable character of the action itself requires us to regard comparatively remote and trifling interferences with such property rights in the light of the great and immediate interference with the personal rights of the complainant, although, as we have already stated, whether this bill might not be rested on such personal basis alone, without reference to the technical protection of property, is not now decided, because the present case does present the property feature to an extent sufficient to satisfy even the rule adopted by the court below.

Upon the whole case, we are of the opinion that the court of chancery'has jurisdiction to afford the complainant ample and complete relief, as already indicated in this opinion; that, should the court of chancery refuse relief under the circumstances stated in the bill, it would cease to be a court of equity governed by principles of natural justice, especially where property rights may be said to be threatened and personal rights are clearly invaded.

The decree sustaining the demurrer is reversed.

For affirmance—None.

For reversal—The Chibe-Justice, Garrison, Fort, Hendrickson, Pitney, Swayze, Reed, Trbnoi-iard, Bogert, Vre-DENBURGH, VROOM, GREEN, GRAY, DlLL—14. ■


text:
    Oliver DeG. Vanderbilt, appellant, v. Henry Mitchell, medical superintendent; Myra L. J. Vanderbilt and William Godfrey Vanderbilt, respondents.
    [Submitted March 18th, 1907.
    Decided June 17th, 1907.]
    One who would be entitled to a portion of an estate in the event of his brother’s dying without lawful issue may maintain a bill in equity to cancel a certificate of birth which falsely stated that a certain infant was the lawful son of his brother, the certificate being procured by the fraud and false statements of the mother, gee John Vanderbilt v. Henry Mitchell et al., decided-June 17th, 1907.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 71 N. J. Bq. (1 Buck.) ‘682.

      Messrs. McDermott & Enright, for the complainant-appellant.

      Mr. Leroy A. Oibby and Mr. Harry V. Osborne, for the defendants-respondents.
   The opinion of the court was delivered by

Dill, J.

The decree appealed from is reversed, for the reasons set forth in the opinion in the case of John Vanderbilt against the same defendants. The charges in this bill are practically identical with those in the John Vanderbilt Case. The only difference between the bills is as to the relation of the complainant to the cause of action.

The complainant in this suit is the brother of John Vanderbilt, and one of the beneficiaries under the testatmentary trust described in the bill.

The complainant has a vested remainder, under his mother’s will, in his individual right, and a contingent interest in the event of the death of his brother, John, without lawful issue.

The false certificate in question is liable to affect the interest to be acquired by the complainant in the future by its use as evidence in some suit or proceeding by the infant. Therefore, a property right to be acquired in the future by the complainant is threatened.

Inasmuch as the complainant is not in possession of the property, and rights to be acquired rather than at present acquired are threatened, his only effectual remedy must at this time be by a bill in equity. Otherwise he might be without adequate relief.

The principle is well stated by the supreme court of Massachusetts, as follows:

“Whenever a deed or other instrument exists which may be vexatiously or injuriously used against a party after the evidence to impeach or invalidate it is lost, or which may throw a cloud or suspicion over his title or interest, and he cannot immediately protect or maintain his right by any course of proceeding at law, a court of equity will afford relief by directing the instrument to be delivered up and canceled, or by making any other decree which justice and the rights of the parties may require.” Martin v. Graves, 5 Allen (87 Mass.) 601, 602.

The decree sustaining the demurrer is reversed.

For affirmance—None.

For reversal—The Ci-iiee-Justice, Garrison, Fort, Hendrickson, Pitney, Swayze, Reed, Trenchard, Bogert, Vre-DENBURGH, VROOM, GREEN, GRAY, DlLL—14.


text:
    The McNab & Harlin Manufacturing Company, complainant, v. The Paterson Building Company et al., defendants.
    [Submitted March 26th, 1907.
    Decided June 17th, 1907.]
    The case of Bec&liard v. Rudolph, S8 N. J. Eq. (2 Robb.) 740, reaffirmed and applied.
    Appeal of Thomas F. McGran, receiver of the Paterson Building Company.
    On appeal from a decree of the court of chancery, in inter-pleader suit, advised by Vice-Chancellor Stevenson, whose opinion is reported in 71 N. J. Bq. (1 Buck.) 138.

      Mr. Edward F. Merrey, for the appellant Thomas F. McCran, receiver.

      Mr. Francis Scott, for the respondent Martin Goble.

      Mr. James G. Blauvelt, for the respondent the G. Drouve Company.

      Messrs. Brinkerhojf & Fielder, for the respondents Collins, Lavery & Company.
   The opinion of the court was delivered by

Dill, J.

The Paterson Building Company, a corporation of New Jersey, pursuant to a written contract, duly filed, undertook to erect a building for the McNab & Harlin Manufacturing Company, a New York corporation, but before the completion of the building the Paterson Building Company became insolvent, a receiver was appointed, and thereupon materialmen and laborers filed claims against the amount in the hands of the McNab & Harlin Manufacturing Company due to the Paterson Building Company. The McNab & Harlin Manufacturing Company then brought this action of interpleader, and after due proceedings, and under a decree, the fund was paid into court.

The various parties who filed stop notices against the fund, pursuant to section 3 of the Mechanics’ Lien law (P. L. 1898 p. 538), were brought in and answered, setting up their respective claims against the fund.

From the adjudication upon these claims by the vice-chancellor the receiver of the Paterson Building Company appeals, seeking to reverse the decision of the court below so far as it allowed three claims, namely, that of the G. Drouve Company, that of Martin Goble, and that of Collins, Lavery & Company.

1. The Claim of the G. Drou-ve Company.—The claim of this company was for furnishing and installing a system of bars and levers which constitute a device for opening and closing the windows in the building in question. The notice served specified a claim “for labor and materials,” and the insistment of the appellant is that tlie stop notice is invalid, and creates no lien because the claim is stated to be for labor and materials furnished.

In Beckhard v. Rudolph, supra, this court declared a notice, practically identical with the one before us, to be good, and held that under section 3 of the Mechanics’ Lien law the remedy by stop notice is open to a party who, under employment by or contract with the contractor,, has supplied fixtures and other materials in the building, and that there was properly included in the claim the work of installation as part of the cost of the materials in situ.

This decision is therefore applicable to the present case, and the claim was properly allowed by the vice-chancellor.

2. The Claim of Martin Goble.—The appellant’s objection is that the stop notice did not specifically state that the materials were actually used in the building. The notice was: “This is to notify you that I have sold to the Paterson Building Company, for your building on Straight street, Paterson, N J., materials to the amount of,” &e. This is in effect an averment that the materials were used in the building. That such was the case in point of fact is settled by the stipulation in the case.

The appellant’s objection to this claim is therefore untenable.

3. The Claim of Collins, Lavery & Company.•—The notice in this case consists of three documents, all of which were served together. The first was an order upon the McNab & Harlin Manufacturing Company by the Paterson Building Company, in favor of Collins, Lavery & Company, for $540.52. The second, an assignment made by certain individuals, described as trading under the name of the Paterson Building Company, transferring to Collins, Lavery & Company, out of the moneys due to the Paterson Building Company from the McNab & Harlin Manufacturing Company, for work done and materials furnished by Collins, Lavery & Company, and used in the erection and construction of the building, the sum of $540.52. The third, a notice stating that there was due from the Paterson Building Company to Collins, Lavery &• Company

“the sum of five hundred and forty dollars and fifty-two cents by you, the said owner, used and employed in the erecting and constructing of your said building; that we have demanded payment,” &c.

In this paper there is manifest omission of the words “for material furnished and” after the words “five hundred and forty dollars and fifty-two cents.”

This latter notice, standing alone, might be insufficient to-entitle the parties to the benefit of the third section of the Mechanics’ Lien law, but taking the three papers together they-convey notice in writing to the McNab & Harlin Manufacturing Company of the essentials required by section 3 of the aet.That the Paterson Building Company was described as a partnership instead of a corporation is not of consequence.

This claim, therefore, was also properly sustained.

For the reasons above stated, we have concurred in the decision of the court below in sustaining the validity of all the claims in question.

The appellant’s counsel, however, relies upon the reasoning of the opinion below to reverse the vice-chancellor’s decision based thereon, and says in his brief that if the reasoning of the vice-chancellor “is sound, this court should reverse its ruling in the BecJchard Case.”

We have carefully examined the elaborate and interesting opinion of the learned vice-chancellor who heard this case, but a thoughtful review of Ms opinion and of the brief of the appellant confirms our judgment in the clearness and soundness of the views expressed in the unanimous opinion of this court in Beckhard v. Rudolph, supra.

The BecJchard Case deals with the construction of section 3 of the Mechanics’ Lien law (P. L. 1898 p. 538), and does not purport to lay down a general rule applicable to the construction of all the other provisions of our Mechanics’ Lien laws.

The question whether other provisions of our Mechanics’ Lien law should be construed liberally or otherwise is not foreclosed by the decision in the BecJchard Case, nor by this decision. It may be argued, and with force, that Mechanics’ Lien laws are, as a rule, to be construed strictly against the claimant and in favor-of the owner of the land in so far as they require the owner to-pay a debt that he did not contract and for a consideration that he may have already paid to the contractor.'

But, in our opinion, no such strict construction should be given to the provisions of the third section of our Mechanics’ Lien law. P. L. 1898 p. 538.

There is no reason for a strict construction of the provisions-of this section beyond the inconvenience to wliich the owner is-put by «making the inquiry into the correctness of the claims served upon him. His possible costs of litigation in an inter-pleader suit are presumably covered by the bill of costs and counsel fees allowed to him.

For these reasons the decree appealed from should be affirmed in all its parts.

For affirmance—The Chief-Justice, Garrison, Fort, Hendrickson, Pitney, Swayze, Reed, Trenchard, Bogert,, Yredenburgh, Yroom, Green, Gray, Dill—14.

For reversal—None.


author: Trenchard, J.

text:
    International Silver Company, appellant, v. William H. Rogers, respondent.
    [Argued March 19th, 1907.
    Decided June 17th, 1907.]
    1. Assuming that everyone has the absolute right to use his own name honestly in his own business, even though he may thereby incidentally interfere with and injure the business of another having the same name, he may not, in such use of his name, resort to any artifice or do any act calculated to mislead the public as to the identity of the business firm or establishment, or of the article produced by them, and thus produce injury to the other beyond that which results from the similarity of name.
    2. Where the name is one which has previously thereto come to indicate the source of manufacture of particular devices, the use of such name by another, unaccompanied with any precaution or indication, is an artifice calculated to produce the confusion alluded to.
    3. While a personal name may not constitute a technical trade mark, yet where an article has come to be known by that personal name, one may not use that name, even though it be his own, to palm off his goods as the goods of another who has first adopted it, and by which appellation the goods have come to be known, when the use of his own name for such purpose works a fraud. If he uses his own name, it must be so used as not to deprive others of their rights, or to deceive the public, and the name must be accompanied with such indications that the thing manufactured is the work of the one making it as would unmistakably inform the public of the fact.
    4. Where a man’s conduct has been such that he cannot engage in a particular business, even in his own name, without profiting by his prior fraud, to the detriment of another’s trade, he must so distinguish his name as to avoid confusion. The words “Not connected with any other of the same name,” or words of similar import, do not suffice.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 71 N. J. Eq. (1 Buoh.) 560.

      Messrs. Edward A. <£• William T. Day and Mr. John P. Bartlett (of the New York bar), for the appellant.

      Mr. Craig A. Marsh, for the respondent.
   The opinion of the court was delivered by

Trenchard, J.

This is an appeal from a decree of the court of chancery.

The suit is a continuation of the litigation heretofore carried on by the International Silver Company against the William H. Rogers Corporation, and reported in 66 N. J. Eq. (21 Dick.) 119, and on appeal in 67 N. J. Eq. (1 Robb.) 646.

The decree in that case was directed against the William H. Rogers Corporation, and its officers and directors, and enjoined them from making and selling silver-plated flat ware under the corporate name of “Wm. H. Rogers Corporation” or under the name of “Wm. II. Rogers,” or under any name of which the word “Rogers” is a part.

This suit has to do with occurrences since the rendition of that decree.

After that decree, and on or about April 6th, 1905, the William H. Rogers Corporation changed its name to “Plainfield Silver Plate Company,” and continued to carry on the business under its new name until May 25th, 1905, when it went out of business. The defendant, who was in control of the stock of the company, and was its president, purchased from it all its unplated blanks, its machinery, tools and fixtures of every kind, its lease on its office and factory, and proceeded to carry on the same business in which it had embarked, under his own name of W. H. Rogers. He now stamps his manufactured goods (his knives, forks and spoons) with the words “W. H. Rogers of Plainfield, N. J.,” and marks his packages “Not connected with any other Rogers.”

Upon this state of facts the complainant filed its bill of complaint, in the nature of a supplemental bill, against the defendant for an injunction, and the case came on before the vice-chancellor on the bill, answer and proofs taken in the cause and the record and testimony of the former case. The vice-chancellor dismissed the bill.

In its bill the complainant claims that the stamp which the defendant puts on his product, namely, the words “W. H. Rogers of Plainfield, N. J.,” tends to produce confusion in the trade to the injury of complainant’s business, and to the wrong of the public, and the complainant asks that he be enjoined from the further prosecution of his business, unless he stamps his product in such a way as to make it plain that it is not manufactured by the original William Rogers Company, to whose business the complainant was the successor.

The learned vice-chancellor thought the injunction should not go, holding that the defendant was under no obligation to do anything more than use his own name fairly; that the evidence showed no fraud, and that the mere fact that a competitor is, or may be, injured, is not material.

In that view we cannot concur.

Assuming that everyone has the absolute right to use his own name honestly in his own business, even though he may thereby incidentally interfere with and injure the business of another having the same name, he may not, in such use of his name, resort to any artifice or do any act calculated to mislead the public as to the identity of the business firm or establishment, or of the articles produced by them, and thus produce injury to the other beyond that which results from the similarity of name. Singer Manufacturing Co. v. June Manufacturing Co., 163 U. S. 169; Russia Cement Co. v. Le Page, 147 Mass. 206; Pillsbury v. Pillsbury, 24 U. S. App. 395; Croft v. Day, 7 Beav. 84; Holloway v. Holloway, 13 Beav. 209; Wotherspoon v. Currie, L. R. 5 H. L. 508; Howard v. Henriques, 3 Sandf. 725; Meneely v. Meneely, 62 N. Y. 427; Lawrence Manufacturing Co. v. Tennessee Manufacturing Co., 138 U. S. 537; Brown Chemical Co. v. Meyer, 139 U. S. 540; Coats v. Merrick Thread Co., 149 U. S. 562.

The leading case is Singer Manufacturing Co. v. June Manufacturing Co., supra, in which Mr. Justice White, after affirming the doctrine above set forth and citing the cases which support it, declared: “Where the name is one which has previously thereto come to indicate the source of manufacture of particular devices, the use of such name by another, unaccompanied with any precaution or indication, in itself amounts to an artifice calculated to produce the deception alluded to in the foregoing adjudications.”

That proposition finds support in the following cases: Howe Scale Co. v. Wycoff, Seamans & Benedict, 198 U. S. 118; Walter Baker & Co. v. Baker, 87 Fed. Rep. 209; Centaur Company v. Link, 62 N. J. Eq. (17 Dick.) 147; Chickering v. Chickering, 120 Fed. Rep. 69.

"When this suit was originally before the court the vice-chancellor found that the name “Rogers” had acquired a secondary significance in connection with the manufacture of silverware. In his opinion, reported in 66 N. J. Eq. (21 Dick.) 120, he uses this language: “The complainant is the successor of several companies which have been engaged for many years in the manufacture of silver-plated ware, and which all derive their title from three brothers of the name of Rogers, who were among the first, if not the first, to apply the art of electroplating to its manufacture. They gained a reputation for their products, and the name ‘Rogers’ has acquired a secondary significance in connection therewith.”

That finding of fact is, in our judgment, fully warranted by the evidence.

While a personal name may not constitute a technical trade mark, yet where an article has come to be known by that personal name, one may not use that name, even though it be his own, to palm off his goods as the goods of another who has first adopted it, and by which appellation the goods have come to be known, when the use of his own name for such purpose works a fraud. If he uses his own name it must be so used as not to deprive others of their rights, or to deceive the public, and the name must be accompanied with such indications that the thing manufactured is the work of the one making it as would unmistakably inform the public of the fact. Williams v. Mitchell, 106 Fed. Rep. 169; Meyer v. Medicine Company, 58 Fed. Rep. 884; Baker v. Sanders, 80 Fed. Rep. 889; Allegretti v. Allegretti, 52 N. E. Rep. 487; Pillsbury v. Mills Company, 64 Fed. Rep. 841; Allegretti v. Keller, 85 Fed. Rep. 643; Raymond v. Powder Company, 85 Fed. Rep. 231; Mills Company v. Eagle, 86 Fed. Rep. 608.

The normal presumption that the use of one’s own name is an honest one may be rebutted by showing a prior fraudulent use of it touching the matter in issue. Such prior fraudulent use of the defendant’s name in connection with the manufacture and sale of silverware is established in this case by the testimony herein and the record of the original suit. The burden is therefore on the defendant to show that the use of his name is not in effect a continuation of such prior fraud. The defendant has not only failed to sustain this burden, but, on the contrary, the testimony in the present case abundantly shows that the defendant has acquired by purchase and is enjoying the results of a business which was built up in fraud of the complainant; it had been established by the corporation which bore his name, and a certain part of its success, at least, was due to the fact that it was getting the benefit of the reputation achieved by the original Rogers people, to the good will of whose business the complainant had succeeded. That benefit he must continue to receive while carrying on this same business in his own name, unless the public are enabled to certainly know that the goods which he puts upon the market are not the goods of the complainant or its predecessors.

The defendant contends that he distinguished his goods by stamping on them the words, “W. H. Rogers of Plainfield, N. J.” The alleged distinguishing words are “of Plainfield, N. J.” But that is no distinguishing mark. As the history of the “Rogers” name in connection with silver-plated ware shows, there were several places where the art was carried on and the “Rogers” mark was lawfully used. Locality has no sufficiently distinguishing force, because locality is not associated in any way with the mark itself. It is the word “Rogers” that is all controlling, and it is that which should be differentiated in order to effectually distinguish the goods.

In Baker v. Sanders, 80 Fed. Rep. 889, 895, the defendant (in lieu of more extended changes) was required to affix the statement that “W. H. Baker is distinct from and has no connection with the old chocolate manufactory of Walter Baker & Company.”

In the case of Allegretti v. Allegretti, supra, in the supreme court of Illinois, the court enjoined the defendants against the use of the name “Allegretti” except in a manner indicating that the defendants’ goods are “Manufactured and sold by B. F. Rubel, I. A. Rubel and Giacomo Allegretti, and not by Ignazio Allegretti or the Allegretti Chocolate-Cream Company.”

In eases like the present one, it is elementary that the person to be considered is not the jobber or wholesaler, but the ordinary purchaser at retail. This being so the marks “Not connected with any other Rogers” which are put upon the boxes, packages and wrappers, and which do not reach the purchaser at the retail shops, afford no means to the retail purchaser of distinguishing the defendant’s product from that of the complainant. Under the circumstances of the present case it was the duty of the defendant to so distinguish the silverware made by him that it could not be mistaken for the silverware known to the world as the “Rogers” ware.

The words, “Not connected with any other Rogers,” even if they reached the retail purchaser, would not suffice for that purpose. Those words merely tend to add to the .confusion. They might well be, and usually would be, employed by an original manufacturer seeking to warn the trade when he finds on the market other goods which may be passed off as his. They would be the appropriate announcement of an original maker that he has no connection with other wares of similar appearance or wares put out under a similar name. These words also afford an unscrupulous retail dealer opportunity to pass off the product as the original “Rogers” goods. In employing such words, so misleading and ambiguous, the defendant is clearly guilty of bad faith.

• The defendant having failed in the performance of his duty so to distinguish his silverware that it could not be mistaken for that of the complainant, we think the complainant is entitled to have an injunction restraining the defendant from manufacturing and selling his goods unless he stamps upon them the words, “Not the original Rogers” or “Not connected with the original Rogers.” As was said in Allegretti v. Kellar, supra, this “saves the complainant’s rights and works no hardship to an honest defendant.”

The decree must therefore be reversed and the record remitted to the court of chancery in order that a decree may be made in accordance with this opinion. The complainant is entitled to costs in the court of chancery and in this court.

For affirmance—-Fort, Hendrickson, Bogert—3.

For reversal—The Chiee- Justice, Garrison, Pitney, Swayze, Reed, Trenchard, Vredenburgh, Vroom, Green, Gray, Dill—11.


author: Per Curiam.

text:
    Bridget Small et al., respondents, v. Catharine Pryor et al., appellants.
    [Argued March 6th, 1907.
    Decided June 17th, 1907.]
    On appeal from a decree of the court of chancery, advised by Vice-Chancellor Emery, whose opinion is reported in 69 N. J. Eq. (3 Robb.) 606.

      Mr. Edward Nugent, for the appellants.

      Mr. Patrick H. Gilhooly, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed by Vice-Chancellor Emery in the court below.

For affirmance—The Ci-iiee-Justice, Garrison, Fort, Hendrickson, Pitney, Swayze, Reed, Trenchard, Bogert, Vroom, Green, Gray, Dill—13.

For reversal—None.


text:
    James B. Duke, respondent, v. Lilian N. Duke, appellant.
    [Decided February 4th, 1907.]
    On appeal from a decree overruling the plea to the jurisdiction, advised by Vice-Chancellor Pitney, .whose opinion is reported in 70 N. J. Fq. (4 Robb.) 1S5.

      Mr. Ghmncey G. Parker and Mr. Samuel Kalisch, for the appellant.

      Mr. Richard V. Lindabury, for the respondent.
   Per Curiam.

The order appealed from in this case is affirmed, for the reasons stated in the opinion filed in the court of chancery by Vice-Chancellor Pitney.

For affirmance—The Chief-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Reed, Trenchard, Bogert, Vredenburgh, Vroom, Green, Gray, Dill—15.

For reversal—None.


text:
    James B. Duke, respondent, v. Lilian N. Duke, appellant.
    [Argued March 8th, 1907.
    Decided June 17th, 1907.]
    On appeal of Lilian N. Duke from a decree of the court of chancery granting the respondent a divorce, advised by Vice-Chancellor Pitney, whose opinion is reported ante p. £M.

      Mr. Chauncey G. Parker and Mr. Samuel Xalisch, for the appellant.

      Mi\ Alvah A. Clark and Mr. Pichará V. Lindabury, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion of Vice-Chancellor Pitney, delivered in the court below.

For affirmance—The Chibe-Justice, Garrison, Fort, Hendrickson, Pitney, Swayze, Eeed, Trenchard, Bogert, Vre-•DENBURGH, VROOM, GREEN, GRAY, DlLL—14.

For reversal—None.


text:
    James B. Duke, respondent, v. Lilian N. Duke, appellant, and Frank T. Huntoon, intervenor and appellant.
    [Argued March 8th, 1907.
    Decided June 17th, 1907.]
    On appeal of Frank T. Huntoon, intervenor, from a decree of the court of chancery adjudging him guilty, advised by Vice-Chancellor Pitney, whose opinion is reported ante ¶. BIS.

      Mr. Alan H. Strong, for the intervenor.

      Mr. Alvah A. Ciarle and Mr. Bichará V. Lindabury, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons set out in the opinion of Vice-Chancellor Pitney, delivered in the court below.

For affirmance—Ti-ie Citi be-Justice, Garrison, Fort, Hendrickson, Pitney, Swayze, Reed, Trenchard, Bogert, Vre-DENBURGH, VROOM, GREEN, GRAY, DlLL-14.

For reversal—None.


text:
    Mary Freund, respondent, v. Michael Freund, appellant.
    [Argued March 11th, 1907.
    Decided June 17th, 1907.]
    On appeal from a decree of the court of chancery, advised by Vice-Chancellor Emery, whose opinion is reported in 71 N. J. Eq. (1 Buch.) 524-

      Mr. Thomas Anderson, for the appellant.

      Mr. Moses J. DeWitt, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons set forth in the opinion delivered by Vice-Chancellor Emery in the court below.

For affirmance—The Chiee-Justice, Garrison, Fort, Hendrickson, Pitney, Swayze, Reed, Trenchard, Bogert, Vre-DBNBURGH, VROOM, GREEN, GRAY, DlLL—14.

For reversal—None.


text:
    In the matter of the estate of Frederick W. Flaacke, deceased.
    [Argued March 21st, 1907.
    Decided June 17th, 1907.]
    On appeal from a decree of the prerogative court on accounting of executor, advised by the vice-ordinary, whose opinion is reported in 64 Atl. Rep. 1020.

      Mr. Robert H. McCarter, attorney-general, for the appellant.

      Mr. Charles II. Ilartshorne, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons set out in the opinion filed by the vice-ordinary in the court below.

For affirmance—The Ci-iiee-Justioe, Garrison, Fort, Hendrickson, Pitney, Swayze, Reed, Trenohard, Bogert, Vre-DENBURGH, VROOM, GREEN, GRAY, DlLL—14.

For reversal—None.


text:
    Cyril Johnson, respondent, v. Hardman Rubber Company, appellant.
    [Argued March 21st, 1907.
    Decided June 17th, 1907.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens.

      Messrs. Goult •& Smith, for the appellant.

      Mr. Ghauncey G. Parker, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons set out in the opinion of Vice-Chancellor Stevens, delivered in the court below.

For affirmance—Tiie Chiee-Justice, Garrison, Port, Hendrickson, Pitney, Swayze, Reed, Trenoitard, Bogert, Vre-DENBURGH, VROOM, GREEN, GRAY, DlLL-14.

For reversal—None.


text:
    Henry Helmuth, appellant, v. Louise Helmuth, respondent.
    [Submitted March 26th, 1907.
    Decided June 17th, 1907.]
    On appeal from a decree of the court of chancery, advised by Vice-Chancellor Bergen.

      Messrs. Weller & Lichtenstein, for the appellant.

      Mr. Harry W. Lange, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons set forth in the opinion delivered by Vice-Chancellor Bergen in the court below.

For affirmance—The Chief-Justice, Fort, Hendrickson, Pitney, Swayze, Reed, Trenchard, Bogert, Vredenburgh, Green, Gray, Dill—12.

For reversal—Garrison, Vroom—2.


text:
    Isaac Seligman, respondent, v. Victor Talking Machine Company, appellant.
    [Argued March 26th, 1907.
    Decided June 17th, 1907.]
    On appeal from a decree of the court of chancery, advised by Vice-Chancellor Garrison, whose opinion is reported in 71 N. J. Fq. (1 Buck.) 697.

      Mr. Norman Grey and Mr. Horace Pettit, for the appellant.

      Messrs. French '& Richardsy for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion delivered by Vice-Chancellor Garrison in the court below.

For affirmance—Ti-ie Chief-Justice, Garrison, Fort, Hendrickson, Swayze, Reed, Trenchard, Bogert, Vredenburgh, Vroom, Green, Gray, Dill—13.

For reversal—None.


text:
    Charles W. L. Roche et al., respondents, v. George Hoyt et al., appellants.
    [Submitted March 26th, 1907.
    Decided November 18th, 1907.]
    On appeal from a decree of the court of chancery, made by the chancellor, whose opinion is reported in 71 N. J. Bq. (1 Buck.) 823.

      Mr. William A. Lord> for the appellants.

      Messrs. B. C. & A. W. Harris, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion filed by the chancellor in the court below.

For affirmance—Ti-ie Chiee-Justice, Garrison, Hendrickson, Pitney, Swayze, Reed, Trenci-iard, Bogert, Yredenburgh, Yroom, Green, Gray, Dill—13.

For reversal—None.


text:
    Wilhelmina Schippers, executrix, respondent, v. Rheinhold H. Kemphes, appellant.
    [Submitted March 26th, 1907.
    Decided June 17th, 1907.]
    On appeal from a decree of the court of chancery, advised by Vice-Chancellor Stevenson, whose opinion is reported in 67 Atl. Rep.

      Mr. Charles B. Dunn and Mr. Michael Dunn, for the appellant.

      Mr. Robert B. Van ilovenberg, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated by Vice-Chancellor Stevenson in the opinion delivered by him. in the court below.

Bor affirmance—The Ci-iiee-Justice, Garrison, Fort, Hendrickson, Pitney, Swayze, Reed, Tkenoiiard, Bogert, Vre-DENBURGH, VrOOM, GREEN, GRAY, DlLL-14.

Bor reversal—None.


text:
    Christian Feigenspan, respondent, v. Joseph Nizolek, appellant.
    [Argued March 28th, 1907.
    Decided June 17th, 1907.]
    On appeal from a decree of the court of chancery, advised by Yice-Chancellor Pitney, whose opinion is reported in 71 N. J. Ecj. (1 Buck.) 882.

      Mr. James 0. Gonnolly, for the appellant.

      Mr. Herbert Boggs, for the respondent.
   Per Curiam.

The facts in this case, and the legal questions which it presents, are fully set out in the opinion of the learned vice-chancellor, who advised the decree appealed from. The object of the appeal is to enforce a written contract by enjoining the breach of a negative covenant contained therein. It is contended on behalf of the appellant that the court of chancery has no jurisdiction to enforce by injunction a negative covenant of the character contained in the contract between these parties. In the case of Mausert v. Feigenspan, 68 N. J. Eq. (2 Robb.) 671, the present respondent filed a bill to restrain the breach of a negative covenant similar to that contained in the contract in the present case. The court of chancery asserted its jurisdiction by decreeing the injunction, and its action was affirmed on appeal by this court. The question of jurisdiction is, therefore, stare decisis. We concur in the conclusion reached by the learned vice-chancellor upon the facts submitted.

The decree appealed from will be affirmed.

For affirmance—The Chief-Justice, Garrison, Fort, Hendrickson, Pitney, Swayze, Reed, Trenchard, Bogert, Vre-DENBURGH, VROOM, GREEN, GRAY, DlLL—14.

For reversal—None.


text:
    Harry B. Brockhurst, complainant, v. John H. Cox, defendant.
    [Argued March 28th, 1907.
    Decided June 17th, 1907.]
    On appeal taken by Elizabeth A. Brockhurst from a decree of the court of chancery, advised by Vice-Chancellor Garrison, whose opinion is reported in 71 N. J. Fq. (1 Buch.) 70S. '

      Mr. Adolph A. Fngellce, for the appellant.

      Mr. Merritt Lane, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion delivered by Vice-Chancellor Garrison in the court below.

For affirmance—The Chief-Justice, Garrison, Fort, Hendrickson, Pitney, Swayze, Reed, Trenchard, Bogert, Vre-DENBURGH, VROOM, GREEN, GRAY, DlLL—14.

For reversal—None.


text:
    Katherine M. Cowdrey, appellant and respondent, v. Albert E. Cowdrey et al., appellants and respondents.
    [Argued March 29th, 1907.
    Decided June 17th, 1907.]
    On appeal from a decree of the court of chancery, advised by Vice-Chancellor Pitney, whose opinion is reported in 71 N. J. Eq. (1 Buck.) 353.

      Mr. Edwin B. Goodell, for Katherine M. Cowdrey.

      Messrs. Woodruff é Stevens, for Albert E. Cowdrey.
   Per Curiam.

This decree adjudges that the complainant, Katherine M. Cowdrey, is entitled to an estate in fee-simple in certain real estate, the legal title to which was in her husband during his life.

It was further decreed that the complainant was so entitled upon the condition that she execute a release to the heirs of her husband and their assigns of her right of dower in her former husband’s remaining real estate.

On the main question in the cause, namely, whether the paper executed by the husband on the day of November 14th, 1904, established an equitable title in his wife, we concur in the conclusion of the learned vice-chancellor that it did.

We also concur in his conclusion that the complainant was a competent witness to prove conversations and transactions with her husband.

We are, however, unable to see how the condition imposed upon the wife, that she shall release her right of dower in the remainder of her husband’s real estate, can be supported. It may be admitted that in view of the relative value of the property settled upon Ms wife, and the remaining property of the husband, it would have been an act of wisdom on the part of the husband to have coupled such a condition with the grant. But he did not do so.

The gift of a husband to his wife of land does not, ipso fado, bar her dower in the husband’s remaining real estate. So any provision for an equitable jointure, which operates to put the widow upon her election, must be either expressly in lieu of dower, or the- same instrument must- make a disposition of some part of the estate which is clearly inconsistent with the existence of dower therein, so that, in claiming dower, the widow would defeat, interrupt or disappoint some provision of the instrument. 5 Am. & Eng. Encycl. L. (1st ed.) 916.

There is no evidence that there was anything said by the husband respecting the matter of dower, even if such testimony was admissible, which it was not. Stratton v. Best, 1 Ves. Jr. 285.

So we are constrained to the conclusion that the decree must be reversed for the purpose of modification, by removing from it the conditions respecting the release of dower.

There were cross appeals. The complainant succeeds in her appeal, and the defendants fail in their appeal.

For affirmance—None.

For reversal—The Chiee-Justice, Garrison, Fort, Hendrickson, Pitney, Swayze, Eeed,- Trenohard, Bogert, Vroom, Green, Gray, Dill—13.


text:
    Jeremiah L. Haley, appellant, v. Fannie Goodheart et al., respondents.
    [Argued March 14th, 1901.
    Decided June 17th, 1901.]
    On appeal from a decree of the court of chancery, advised by Vice-Chancellor Stevens, whose opinion is reported in 58 N. J. Bq. (18 Dick.) 868.

      Mr. Richard V. IAndabury, for the appellant.

      Mr. Charles L. Corbin, for the respondents.
    Note.—Decision omitted from its proper place.—Rep.
   Affirmed June 17th, 1901.

For affirmance—Ti-ie Ci-iiee-Justice, Van Syokel, Garrison, Gummere, Garretson, Hendrickson, Bogert, Adams, Vredenburgh, Voori-iees, Vroom—11.

For reversal—None.


text:
    The German Pioneer Verein, respondent, v. George A. Meyers, executor, appellant.
    [Submitted March 25th, 1907.
    Decided June 17th, 1907.]
    On appeal from a decree of the court of chancery, advised by Vice-Chancellor Pitney, whose opinion is reported in 70 N. J. Fq. {Jf. Robb.) 192.

      Mr. Francis Scott, for the appellant.

      Messrs. Hudspeth ■& Carey, fox the respondent.
   Per Curiam.

The decree in this ease is affirmed, for the reasons contained in the opinion delivered in the court of chancery by Vice-Chancellor Pitney.

In respect to one matter of fact there is an error in the vice-chancellor’s opinion which, while not of controlling importance upon this appeal, had best be corrected. The vice-chancellor states that the complainant was organized for the purpose of taking over the legacy provided by the will of Raymond Rath, deceased, with which it established the home that bears the name of its founder. The corrected testimony of the only witness who spoke to this subject makes it clear that the complainant was organized as a verein in 1898 before the death of Rath and without any reference to the said provision of his will. The complainant took the Rath fund as a trustee for the purposes named in the will of the settlor, viz., a home for aged Germans. Inasmuch as it is the name and home feature of this trust and not the other verein purposes of the complainant that entitle it to the legacy accorded to it by the decree of the court of chancery, such legacy comes into the hands of the complainant to be used exclusively by it for the purposes of such home and not for any of its other more general objects.

The decree is affirmed.

For affirmance—The Chief-Justice, Garrison, Port, Hendrickson, Pitney, Swayze, Reed, Trenchard, Bogert, Vre-DENBURGH, VrOOM, GREEN, GRAY, DlLL—14.

For reversal—None.


author: Maoue, Chancellor.

text:
    Aaron E. Johnston, executor, v. Thomas B. McKenna, Jr., et al.
    [Argued May 21st, 1907.
    Decided July 22d, 1907.]
    A decree in a suit to recoyer for the fraudulent appropriation of a surplus resulting from a foreclosure sale of complainant’s property against one of the joint tort-feasors is not a bar to a suit against the other joint tort-feasors, and the bill in a second suit so brought is not within the general rule of equity pleading that a supplemental bill, or an original bill in the nature of a supplemental bill, is demurrable where it appears on its face to have been filed after a decree for causes known to complainant before the decree was entered.
    On demurrer to bill.

      Mr. Charles J. Roe, for Hugh E. O’Reilly, demurrant.

      Mr. Aaron E. Johnston, pro se.

   Maoue, Chancellor.

The bill demurred to recites the filing of a bill in this court by Mary E. Throckmorton, on January 16th, 1903, against Patrick J. Reilly, Hugh O’Reilly and Patrick Skelly, the purpose of which bill was to obtain a decree requiring the defendants, or some of them, to pay to Mary E. Throckmorton the sum of $7,919.55, which complainant charged had been obtained out of the surplus money arising from the sale of lands belonging to her, sold, under foreclosure proceedings, in which a large surplus had resulted. The theory of the bill was that Patrick J. Reilly, who. was the purchaser at the foreclosure sale, and Hugh O’Reilly and Patrick Shell}', who were the complainants in the foreclosure bill, had fraudulently conspired to obtain, and had obtained, the surplus which belonged to her in equity.

- The present bill recites that the cause went to hearing and a decree therein was made against Patrick J. Reilly and not against the other defendants. The opfinion of Vice-Chancellor Pitney, who heard the case, reported in 168 N. J. Eq. (2 Robb.) 130, indicates that Hugh O’Reilly and Patrick Skelly were not shown to have been concerned in the fraudulent transaction, but that there had been a fraud committed of which. Patrick J. Reilly was, at least, constructively guilty, although he did not personally receive the proceeds of the fraudulent transaction. The vice-chancellor further found that the present demurrant, Hugh E. O’Reilly, and one Thomas B. McKenna, Jr., had, in fact, been permitted by Patrick J. Reilly to receive the proceeds of the fraudulent transaction, and had acquired and retained the same.

The present bill frankly admits that, in the course of the examination of witnesses in the previous cause, a tortious connection of the present demurrant, and of McKenna, with the transaction was plainly shown. If thereupon, the complainant, or rather Aaron E. Johnston, her executor, who because of her death ;pendente lite had been admitted as complainant, had immediately applied to the vice-chancellor for an amendment of his bill so as to charge those who were really shown to be two of the tort-feasors liable to answer for their misconduct, or had immediately filed a bill in the nature of a supplemental bill, I think there is no doubt that the amendment would have been permitted, or the supplemental proceeding would haVe been brought to hearing before a decree was made. Complainant, however, did not take either of these obviously appropriate steps. On the contrary, he proceeded to a decree against Patrick J. Eeilly alone.

The present bill goes on to say that complainant has been unable to enforce his decree against Patrick J. Eeilly, and that the estate, of which complainant is the representative, remains unsatisfied for the fraudulent abstraction of the money in equity belonging to the deceased. He has thereupon filed the present bill and brought in the demurrant and McKenna as the parties who received and retained a portion of the money obtained by the fraud which, under the previous bill, the vice-chancellor found had been perpetrated upon Mrs. Throckmorton.

In support of the demurrer, it is insisted that the demurrant is wholly exonerated from the pursuit of the complainant, because the complainant, having knowledge of the facts which his bill admits, proceeded to take a decree against one. of the joint tort-feasors. The argument is that this is a supplemental bill, or an original bill in the nature of a supplemental bill, and that the general equity rule is that such a bill will be demurrable if it appears on its face to be filed after a decree for causes which became known to the complainant before decree made. Such seems the general rule of equity pleading. Story Eq. Pl. § 338; Barriclo v. Trenton Mutual Life and Fire Insurance Co., 12 N. J. Eq. (2 Beas.) 155; Commercial Assurance Co. v. New Jersey Rubber Co., 61 N. J. Eq. (16 Dick.) 446.

Bat I ana -unwilling to conclude that the present case falls within that rule. I think this bill may be treated as an original bill against two of three original tort-feasors and the two who have obtained, and are retaining from the complainant, or from the estate of which he is the executor, money which ought to be paid to him, and which they fraudulently obtained and still retain.

Mr. Pollock, in his treatise on the law of torts, declares the English rule, with respect.to tort-feasors, to be that, where the injured party has recovered a judgment against some, or one, of the joint authors of a wrong, he cannot sue the other or others for the same matter, even if the judgment in the first action remains unsatisfied. By a note to the text, it appears that he deemed this rule had been finally settled in the English courts by the decision in exchequer chamber, in the case of Brismead v. Harrison, L. R. 7 C. P. 547. By the examination of the English cases before that case, it is clear that whether judgment against one without satisfaction -was a bar to an action against other joint tort-feasors, was left uncertain. Poll. Torts (Am. ed.) § 170.

The reasons given in the English leading case for treating the judgment against one joint tort-feasor as a bar to actions against others jointly liable seem not to have impressed the American courts. Judge Cooley, in his work on Torts, sums up the cases in this country thus:

“When the suit is against several joint wrong-doers, the judgment must be for a single sum against all the parties found responsible. As it may happen that this judgment may not be against all the parties liable, either because the plaintiff was not at first aware of the full extent of the combination which has injured him, or because he was unable, when first suing, to obtain service on all the parties connected with it, it becomes a question of importance whether, after thus proceeding against a part, he may afterwards sue others. And the question is the same if, having voluntarily elected to pursue a part only, he finds, after obtaining judgment, that the pecuniary responsibility is not what he had supposed.
“Whatever may have been the reasons for proceeding at first against less than the whole, it is conceded oh all sides that a previous suit against one or more is no bar to a new suit against the others, even though the first suit be pending, or have proceeded to judgment when the second is brought. The second, or even a subsequent suit, may proceed until a stage has been reached in some one of them at -which the plaintiff is deemed in law to have either received satisfaction, or to have elected to rely upon one proceeding for his remedy to the abandonment of the others.” Cooley Torts 157.

An early case involving the principle was decided by Chief-Justice Kent, in Livingston v. Bishop, 1 Johns. 290. The American doctrine was declared by the supreme court of the United States to be that a judgment against one joint trespasser is no bar to a suit against others for the same trespass, and that nothing short of full satisfaction can make such judgment a bar. Lovejoy v. Murray, 3 Wall. 1

The reason which has impelled the courts of law in this country to permit an injured party to pursue his relief for a tort against one and then against another of the tort-feasors responsible, until he obtains a satisfaction, appeals as strongly, if not more strongly, to a court of equity.

In my judgment, the taking of the decree in the previous cause is no bar to the maintenance of a bill against co-conspirators and joint tort-feasors not included in the decree, if it be made to appear that no satisfaction has been obtained from the person charged by the decree.

The demurrer must therefore be overruled.