author: Pitney, Y. C.

text:
    John S. Van Winkle v. John Owen, administrator of Richard Owen, The Executor of Henry Wehle and Joseph R. Smith.
    1. In the case of a bill in the nature of a bill of interpleader, which states substantial grounds of equitable jurisdiction other than the mere fact that there are conflicting claims set up to a fund in complainant’s hands, it is not necessary to allege in the bill, or to assert by affidavit, that the complainant is indifferent between the contesting parties and does not collude with either.
    2. Judgment was recovered against complainant in a New York court, and afterwards suit was brought upon that judgment, and a judgment recovered therein against complainant in a New Jersey court. The plaintiff’s attorney of record in the New York court had a lien upon it for costs and services rendered therein, and after judgment recovered in New Jersey gave complainant notice thereof. — Held, that complainant was entitled to have the New York judgment satisfied of record and the claim of the New York attorney discharged as a condition precedent to the payment of the New Jersey judgment.
    On demurrer.
    The case as made by the bill, and admitted by the demurrer, is as follows: Richard Owen recovered judgment against the complainant in the city court of New York city, on the 13th of June, 1891, for $1,735.28 damages, and $182.07 costs. Richard died intestate in 1892, and in January, 1893, letters of administration upon his estate were granted by the surrogate’s court of New York to the defendant John Owen. In 1895, John Owen, as administrator, commenced an action' founded on that judgment against complainant in the circuit court of the county of Hudson, and judgment by default was rendered therein on the 3d of April, 1895, for $2,355.39, being the amount of debt, costs and interest due on the New York judgment, and $31.47 costs. The attorney of record and counsel for Richard Owen, in the suit in the court of New York, was one Henry Wehle, who died after the recovery of the judgment testate of a will by which the defendants Charles and Alexander Wehle and Gustave Behr were executors, and they, as such, after the entry of the judgment in the Hudson circuit court, notified complainant that they claimed a lien upon the judgment entered in the New York court, and any moneys to be paid thereon for fees, costs and expenses due to Henry Wehle, the attorney, in his lifetime, for his services, fees, costs and expenses in and about the prosecution and recovery of the said judgment, amounting to $1,182.07, and the further sum of $1,890.87, as the balance due from Richard Owen to Henry Wehle for his' services rendered in other suits and matters, and that by an agreement between Richard Owen and Henry Wehle, Richard Owen agreed that Wehle should have and hold said judgment rendered against the complainant as security for his said debt, and that any moneys derived therefrom should be applied to the payment of all the moneys due from Richard Owen to Wehle.
    In point of fact, Wehle did conduct the suit which resulted in the judgment in favor of Richard Owen against the complainant, and, by virtue of the laws of the state of New York, Wehle had a lien upon that judgment, or any moneys to be derived therefrom, for the payment of the sum of $1,182.07, and he also had a lien for the further sum of $1,890.87 by virtue of the contract made between Henry Wehle and Richard Owen above set forth ; and those moneys are still due from the estate of Richard Owen to the estate of Wehle. The defendant Smith claims that the executors of Wehle have assigned to him their debt against Owen and their lien upon the judgment. The judgment in the city court of New York remains unsatisfied of record. Richard Owen, in his lifetime, obtained and took into his possession certain deeds, notes and other papers not enumerated, belonging to the complainant, and evidences of indebtedness due and owing to complainant, and other papers of value belonging to complainant; and Richard Owen, in his lifetime, or the defendant Owen, his administrator, since his death, collected and realized out of the documents so taken possession of a part— but what part or how much does not appear — of the moneys due from complainant to them, and no credit was given therefor in the judgment rendered in the Hudson circuit court; and the complainant had no notice prior to the rendering of such judgment that any moneys were realized by Richard Owen or the defendants, as his administrators, upon any of the property of the complainant so in their possession. The executors of Henry Wehle and the said Joseph R. Smith, claiming to be their assignee, are all residents of the state of New York, and refuse to allow the judgment rendered in the city court of New York to be satisfied or discharged until their said lien has been fully paid and discharged; and complainant is unable under the laws of the state of New York to obtain such satisfaction, and he believes and charges that he will be liable to pay the same even if he should pay and satisfy the judgment in the Hudson circuit.
    Complainant, after notice of the facts hereinbefore set forth, applied to the defendant John Owen and expressed himself as ready and willing to pay and satisfy the amount due on the Hudson circuit court judgment upon a return of his deeds and papers taken by Richard Owen, and upon the satisfaction of the lien or claim of the executors of Wehle, and the formal satisfaction of record of the New York judgment, and upon being released from the claim of Wehle’s executors, which offer was declined by the defendant, and execution issued on the judgment, and a levy was made upon property of the complainant.
    Complainant tenders himself ready and willing to pay whatever is actually due upon the judgment, after deducting and allowing the credit for such moneys as may have been realized by Richard Owen in his lifetime, or the defendant John Owen, as administrator, out of the complainant’s property in the city of New York, upon being relieved of the claims of the executors of Wehle, deceased, and of their alleged assignee, Smith, and having the judgment there against him satisfied and discharged of record.
    The prayer is that there may be an interpleader between the executors of Wehle and Smith, their alleged assignee, on the one part, and defendant Owen, as administrator, on the other; that an account may be had of the moneys collected by Richard Owen in his lifetime, or by John Owen, as administrator, out of the property of the complainant, and the same credited on the judgment, and that the complainant shall be released and discharged from the claim of the executors of Wehle and Smith, and the judgment recovered in the city court of New York satisfied and discharged of record, and the deeds and other papers in the hands of Richard Owen at the time of his death may be delivered to him.
    No affidavit of non-collusion and disinterestedness was annexed to the bill.
    . Mr. J. Frank Fort and Mr. George Biller, in support of the demurrer.

      Mr. Frederic W. Ward, in support of the bill.
   Pitney, Y. C.

In answer to the objection taken by defendant that the bill is demurrable for want of the usual affidavit of non-collusion and disinterestedness required in a bill of interpleader, complainant answers that this is not a pure bill of interpleader, but is no more than a bill in the nature of a bill of interpleader, in that it contains other grounds for coming into a court of equity, and asks other relief than that of a pure interpleader; and, therefore, that such affidavit is neither proper nor necessary.

In this I think the complainant is right. The formal affidavit in question is not a statutory requisite, nor required by any standing rule of the court, but has been required by the courts to prevent the abuse of a bill of interpleader being used by a stakeholder in the interest of one or the other of the parties claiming the fund, who might for any reason prefer to have his claim passed upon by a court of equity rather than by a court of law.

Eor myself, I am unable to perceive any principle upon which the absence of the formal affidavit can be held cause for demurrer, if the bill itself contains the proper averment of fact, which the demurrer must admit. But the rule seems to be established, as contended for by the defendant, that the absence of the affidavit is a cause of demurrer. In the case in hand, however, there is in the bill no allegation Of indifference or non-collusion, and hence it fails as a pure interpleader.

A bill in the nature of an interpleader is one in which the complainant asks some relief over and above a mere injunction against suits by the contesting parties, and states facts which entitle him to such relief independent of the fact of the adverse claims of the several defendants. The books furnish numerous instances of such. 2 Dan. Ch. Pr. (5th ed.) 1571, and cases cited; Story Eq. Pl. (9th ed.) § 897 b, and cases cited. In our own state we have several instances. Aleck v. Jackson, 4 Dick. Ch. Rep. 507; Illingworth v. Rowe, 7 Dick. Ch. Rep. 360,: are samples, and the opinion in the latter case refers to other cases illustrating the distinction between pure bills of inter-pleader and bills in the nature of interpleader.

If the complainant’s bill duly states facts which entitle him to relief'independent of its interpleader aspect, then clearly no affidavit of indifference is necessary or proper. Such is the rule stated by Mr. Daniell (2 Dan. Ch. Pr. (5th ed.) 1563, citing Vyvyan v. Vyvyan, 30 Beav. 65), and this must be so upon principle.

This brings us to the merits of the bill. The complainant relies upon several distinct equities, each of which is met by the defendant in argument.

First, he alleges, and the demurrer, admits, that the executors of Wehle have-a lien upon the New York judgment, on account— first, of services actually rendered in the procurement of that judgment, including costs of the recovery and extra counsel fees and expenses; and second, by a parol assignment of.it by Richard Owen to Wehle to secure other moneys due from Richard Owen to Wehle, and that the executors of Wehle, or their assignee, Smith, threaten to use the New York judgment as a means of enforcing it, and that a payment to the sheriff of Hudson county, or to the attorney of the plaintiff in the Hudson county judgment, resulting in a full satisfaction of that judgment, will not relieve complainant from the judgment in New York, on which that judgment is based, and that he is entitied to have the New York judgment satisfied and the claim of Wehle’s executors discharged before paying the money.

The defendant did not deny but that the complainant was entitled to be relieved from the effect of the New York judgment, but argued, upon general principles, that the New York judgment was absolutely destroyed and all remedy upon it taken away by merger in the New Jersey'judgment recovered upon it.

It.is neither necessary nor proper at this time to finally determine whether or not the defendant’s contention in this respect is sound. It is sufficient to say that it is, at least, doubtful, and so appears from.the very authorities which he cites to support it.

Mr. Freeman (Freem. Judg. § 216) says: “A judgment is extinguished when, being used as a cause of action, it grows into another judgment.” And cites a number of American authorities in support of his text, some of which give countenance to the idea that where liens are acquired upon property by virtue of judgments recovered in one state and a subsequent suit is brought upon that judgment in a sister state, the judgment recovered therein destroys the first judgment to the extent of destroying all liens already acquired under it; but the learned author states that this doctrine is not universally admitted, and he says:

“ Some American cases proceed upon. the theory that no merger can take place until some higher remedy or evidence is created; and deny that one judgment can merge into another of equal degree. On this ground the motion to enter satisfaction of a judgment because it had been, recovered upon in another action was denied.”

The authorities he cites are: Weeks v. Pearson, 5 N. H. 324; Mumford v. Stocker, 1 Cow. 178; Andrews v. Smith, 9 Wend. 53; Griswold v. Hill, 2 Paine C. C. 492. These cases all support the doctrine of the text just quoted. And to these may be added the case of Jackson, ex dem. Sternberg, v. Shaffer, 11 Johns. 513. There, a bond and warrant of attorney to confess judgment had been given in gwast-payment of a judgment already recovered, and judgment was afterwards entered on the bond and warrant of attorney, and it was held not to destroy the original judgment or its lien upon land, and a sale of land under the original judgment, made after the entry of the judgment on the bond and warrant of attorney, was held by the supreme court of New York to pass the title to the land by virtue-of the original lien of the first judgment. The only authority the other way in New York is a decision of Chancellor Walworth, without any discussion or citation of authorities, in Purdy v. Doyle, 1 Paige 561. I cannot think that learned judge intended to overrule the decision of the supreme court in Den v. Shaffer, and must take the law to be as therein declared.

Mr. Bigelow, in his book on Estoppel (5th ed.) p. 104 ch. 2 § 2 3, points out the same doctrine; and in his note to Story on Conflict of Daws (8th ed.) § 599 a, says that

it may be inconvenient that two judgments should subsist in the same state against the same persons on the same demand, but no such inconvenience can exist in the case of judgments rendered in different states, and there is no sufficient reason for the application of the purely technical doctrine of merger, subversive of substantial justice as it would be in such cases.”

And he adds:

“ Indeed, in view of the fact that one satisfaction would satisfy both judgments, there is little to be said in favor of the doctrine of merger, reasonable as that doctrine may be in ordinary cases by a second judgment obtained upon the first even in the same state.”

And see 8 Blaoh Judg. §§ 864, 1018.

I think that Mr. Bigelow’s criticism is just; and I am unable*" to see any reason in law or in public policy why, if A. recovers a judgment against B. in the State of New York and acquires a lien by virtue of it upon property insufficient to pay it, and immediately afterwards brings a suit on that judgment and recovers upon it in the State of New Jersey, he must, as a condition of recovering that judgment in New Jersey, lose his lien by virtue of his judgment in New York and all remedy there-^under.

It is to be observed that the distinction here is between having two valid judgments at the same time in two distinct jurisdictions, one founded upon the other, with a concurrent right to a remedy under each for the purpose of'paying the amount due, not twice, but once, and the effect of the payment of the later judgment upon the former judgment. . Undoubtedly, under ordinary circumstances in the case in hand, the payment of the judgment in New Jersey would be, in effect, the payment of the. judgment in New York. But that is not the question here. The question is whether or not the judgment in New York is, before the payment of the judgment in New Jersey, a valid existing judgment so that the attorney of record still has his lien upon it for the amount of his fees, costs and services. If it be such valid and existing judgment before the payment of the judgment in New Jersey, and the attorney of record has his lien upon it, it will, at once be seen that it is, at least, a matter of grave doubt whether the payment of the New Jersey judgment, after notice of the attorney’s lien upon the New York judgment, will discharge that judgment and thus extinguish the lien.

But the defendant further contends that the executors of Wehle having remained quiet and failed to enforce their lien until after judgment was recovered in New Jersey, they must be presumed to have waived it, or, at least, lost it by their laches.

I am unable to see any force in this suggestion, or to observe any laches in their conduct. The bill does not disclose any failure on the part of the attorney to use diligence in the collection of the judgment in New York, and mere non-action there would not destroy his lien, and he was not bound to follow the defendant in New Jersey and sue here. It is difficult to see what duty was cast upon him to watch in all the courts of the different states in the Union for suits brought by the representative of Owen upon that judgment, in order to intervene in such suits. Nor is it perceived how the attorney, or his personal representative, could have intervened or done anything to prevent the suit being brought in New Jersey precisely as it was, or stop the recovery of judgment therein. Granting that the whole of thé judgment was really due to the representatives of the attorney, still the action was properly brought in our court in the name of the personal representative of Owen, in whom was the legal title only. Hence, it follows plainly that, granting the lien, the suit brought by the representative of Owen was; properly brought, but in equity it was brought really for the use of the representatives of Wehle, and they are in ample time if they give notice to the defendant before the money is paid.

It was further suggested that perhaps the complainant here, the defendant in the judgment, could relieve himself from all liability to the executors of Wehle by giving notice to them that he would pay the money into the Hudson county court, where the judgment was recovered, and let them apply to that court to pay the money out to them.

It is probable that such action would have been efficient to discharge the complainant herein, but he would not thereby obtain a discharge on the record of the New York judgment or a decree protecting him against further molestation by the executors of Wehle or their assignee under their claim. His defence against such action on their part would rest wholly upon matters in pais, and he would be .compelled on his defence to prove by parol the fact that he gave them the notice before paying the money into court; I am unable to see that he is not entitled to the more perfect remedy of paying the money into the court of chancery, and having a decree of that court compelling the defendant Owen to completely discharge him as a condition to having the money.

But the further difficulty with defendant’s argument is that, granting the general rules of law to be as stated by the defendant, the complainant in his bill, as I interpret it, states the law of New York to be otherwise, viz., that the New York judgment will, according to the law of New York, stand against him, notwithstanding payment of the judgment here, and that he will not only be unable to have it satisfied of record, but that he would be liable to be proceeded against under it by the executors of Wehle. Now this statement of the law of- New York is a statement of a fact, and is admitted by the demurrer, for the statement of the law of a foreign state or country is a statement of fact, as I understand the rules of pleading.

But grant it to be otherwise, and grant that, independent of the existence of the lien upon the New York judgment in favor of the Wehle estate, which is admitted by the demurrer, the complainant, upon going to New York with record proof of the payment and satisfaction of the New Jersey judgment, could, upon motion or other proceedings, have the New York judgment declared satisfied of record, yet it does appear, upon the admitted facts of the case, that there is danger that he would be unable to do that in the present case on account of the lien of Wehle’s executor. And granting that the law of New York; as stated by the bill, is erroneous, that the defendant’s contention is right, and that, by the law of the land, applicable in New York and elsewhere, the New York judgment is merged in the New Jersey judgment, and can no longer be resorted to by the administrator of Owen, whether the New Jersey judgment is paid or not, still, the complainant is entitled to have that New York judgment satisfied and canceled of record, so that it shall no longer stand as an uncanceled judgment against him in New York city. And it seems to me that the difficulty, to say the least, thrown in the way of having it so discharged of record, by the admitted lien upon it by the executors of Wehle, entitles him to have such cancellation a condition precedent to the payment of the money in this case.

For these reasons I think the bill in this aspect states a substantial equity.

The next ground of equity taken by the complainant is that Richard Owen, by means of the judgment in New York, became possessed of certain documents and evidences of debt belonging to complainant, and still holds the same, and on some of them has recovered and received certain moneys (amount and particulars not stated), and that complainant did not have notice of the receipt of these moneys until after the recovery of the judgment, so that he could not have set it up in defence.

The point taken by the defendant against this equity is that it is a matter of defence at law, and that it'does not appear that the complainant was diligent to such a degree in ascertaining the facts as to give him a right in a court of equity to ask for relief against a judgment at law; the defendant’s position being that in order to enable a defendant in a judgment to come into equity and get a new trial on discovery of facts available at law, he should' free himself of all laches in the case, and show that it is too late to obtain relief at law.

I am inclined to think that this criticism is well taken. The statements of the bill in this behalf are very meagre and unsatisfactory ; but the fact remains, and it is admitted by the demurrer, that some moneys have been received either by Richard Owen, in his lifetime, or by his administrator, the defendant, which in justice ought to have been credited on this judgment; and it is to be borne in mind that the particulars of the same are naturally in the defendants’ and not complainant’s knowledge.

But, over and above all that, the papers and documents which are in the hands of the administrator of Owen, or, as the bill alleges as to some of them, in the hands of the executors of Wehle, ought to be given up to the complainant upon the payment of the judgment; and he has a clear equity to have them so given up.

' For these reasons I conclude that the bill discloses equities, and that the demurrer should be overruled.


source: Caselaw Access Project

author: Emery, V. C.

license: Public Domain

text:
    John P. Stockton, attorney-general, informant, v. The North Jersey Street Railway Company.
    1. In proceedings by the attorney-general to restrain the construction of an electric street railway, on the basis that the consent of the municipal authorities, which has been in fact or form given, is illegal, in that the ordinance does not comply with the traction laws of 1893 and 1894, and the act of' March 11th, 1893, governing the use and location of poles in public streets, a preliminary injunction will not be allowed when the questions raised are purely legal, and are pending before a court of law for decision in a proceeding upon which the ordinance, if invalid, may be set aside altogether.
    2. Where the validity of the objections to an ordinance is not clear, and involves a disputed question of fact, the validity of the ordinance will riot be considered on ex parte affidavits for a preliminary injunction.
    On information &e.

      On application for preliminary injunction, heard on information and affidavits and affidavits in reply.

      Mr. Robert H. McCarter, for the motion.

      Mr. Halsey M. Barrett and Mr. Joseph Coult, contra.

   Emery, V. C.

This information is filed by the attorney-general in his official capacity, and as representing the public rights in highways. Its object is to restrain the defendant, a corporation formed under the laws relating to traction companies, from the further construction of its street railway upon that portion of Bloomfield avenue, .in the county of Essex, running from its present terminus at Liberty street, Bloomfield, through the municipalities of Bloomfield township, Glen Ridge, Montclair, Verona, Caldwell township and the borough of Caldwell, until it has obtained the legal consent of all of those municipalities and also of the road committee of the board of chosen' freeholders of Essex county, and also to compel the removal from the avenue of the road already constructed. The road, as appears by the affidavits, has already been constructed through Glen Ridge and the townships of Verona and Caldwell. The laws requiring the consents of local authorities to the construction of street railways by traction companies and their operation by electricity, are the acts of 1893 (P. L. of 1893 p. 302 §§ 6, 7), the act of 1894 (P. L. of 1894 p. 374), which relate to the construction of the street railway, and the act of March 11th, 1893 (P. L. of 1893 p. 241), providing for the use of electricity in their operation. This latter act provides (section 2)

“that the municipal board, or any county public road board, or other authorities having the charge or control of any streets, highways or avenues in any city, county, town or township of this state, may, when they deem it proper, authorize the use of poles located or to be located in the public streets or highways with wires strung thereon for the purpose of supplying the motors with electricity, and when a board grants such authority, it may in such case prescribe the manner in which, and the places where such poles shall be located, and the manner in which the wires shall be strung thereon,-and the same may be authorized and prescribed by ordinance.”

On February 14th, 1895, the road committee of the board of ■freeholders of Essex county, which is the proper county authority to give consent, passed a resolution giving their consent to the use of electricity, and among other conditions adopted the following relating to the erection of poles:

For so long as the overhead system is employed, the poles shall be of iron or steel similar to those now in use in the city of Newark for such purpose, and shall be placed along the sides of said avenue, adjoining the curb line.”

This consent operated, if at all, along the whole line of the avenue through all the local municipalities, and is the only consent which appears to have been obtained by the defendants from the county authorities for any part of their line upon any part of Bloomfield avenue.

On November 31th, 1895, the borough of Caldwell, acting .under the authority of the traction laws of 1893 and 1894, and also the other act of March 11th, 1893, passed an ordinance giving or purporting to give the consent of the borough authorities required by those laws. This ordinance has been removed to the supreme. court for review -by a certiorari, in which the present relators, or some of them, are prosecutors, and this case has been submitted and is now waiting decision. After the hearing, an order was made by the supreme court modifying the restraining power of the'writ of certiorari, so as to permit the defendants to construct their road through the whole borough and to construct the overhead system of operation by'electricity through the borough up to the lands of the prosecutors. This information was then filed with the objects above stated, and the application is now made for a preliminary injunction to restrain the further construction of the road on any part of the avenue, including its construction through the whole of the borough, under its consent, upon the ground that it is illegal. The legality of the Caldwell ordinance is.attacked upon four of the grounds or reasons relied on in the certiorari, viz., first, that it fails to prescribe the manner in which the poles are to be placed, as required by the act of March 11th, 1893'; second, that it fails to describe properly the places where the poles-are to be located, as required by the act; third, that it was passed without the hearing required by the traction acts; and fourth, that the above acts are unconstitutional and void. The latter ground was not relied on at this argument.

No certiorari has been taken to remove the resolution of the board of freeholders, nor is there any charge of its illegality made in the information, but it is alleged that the poles, if located in Caldwell accordiug to the borough ordinance, cannot be located along the sides of the avenue adjoining the curb line, as required by the county authorities. This involves* as is' disclosed by the affidavits, a dispute of fact, on the question both of the existence of any curb line and its location.

This information, being signed by the attorney-general-in-his official capacity and presented to the court, must be considered as filed by him in the exercise of his rights, as representing the general interest of the public in the highways of the state, and, for the purposes of the decision on this motion, will be treated as not directly affected or involved in the proceeding by certiorari.

It must be borne in mind, however, that in the review on certiorari of proceedings of local bodies relating to highways, the writ was treated as being brought by the prosecutors in the name and on behalf of the state (Morris Canal and Banking Co. v. State, 2 Gr. 411, 424), and also that the supreme court, on the review of the proceedings, has power- to set- them aside absolutely, and such general reversal operates in favor of all persons, although not parties, as prosecutors to the certiorari proceedings. Town of Bergen v. State, Van Horn, pros., 3 Vr. 490, 493. As I read this decision, the court of errors and appeals, on this point, overruled the decision of the supreme court in 1 Vr. 307, 309, which held that the reversal on certiorari, although general in form, was not conclusive in favor of persons not parties.

The courts of this state have defined the nature of the jurisdiction of courts of equity, on an application of the attorney-general, to restrain public nuisances in the highways, and have, in numerous, decisions, established the general rule upon which the right to a preliminary injunction must depend. The leading cases are. cited in Raritan Township v. Port Reading Railroad Co., 4 Dick. Ch. Rep. 11, 16, and hold that, on the application of the attorney-general or of the local authorities, who have the same right in equity, the injunction can issue only in cases of serious public injury and inconvenience, in fact. The case, as presented by the affidavits attached to the information, does not show any such case of serious public inconvenience or injury, and, on the basis of the proposed road and its operation being, in fact, such a nuisance, the preliminary injunction could not be granted.

The above rule as to the serious nuisance in fact, does not apply to those cases where the local authorities are invested by statute with the right to require their previous consent to the construction of the road on the highways, and in those cases where no such consent has been given, or attempted to be given, the local authorities, by bill, or the attorney-general, by information, may restrain the operation until such consent be given. Attorney-General v. Atlantic Highlands &c. Co., 8 Dick. Ch. Rep. 418.

The form of preliminary injunction in such cases is that an injunction issue against the proposed construction without the consent of the local authority. Franklin Township v. Nutley Water Co., 32 Atl. Rep. 381, 384.

In the present case, both the board of freeholders and the borough of Caldwell have, in form, given their consents under the act, and the basis of the information of the attorney-general is that the consent of the borough is illegal; that, therefore, the whole structure is without legal authority, and a decree is prayed restraining the construction until legal consents have been obtained. If this consent is legal, the attorney-general, as well as the whole public, is bound by the consent.

The case, therefore, differs from the Atlantic Highlands and Nutley Cases in this vital point. Those were cases where the local authorities had neither given, nor attempted to give, the required consents, and the suits, therefore, were applications by the local authorities or the attorney-general to enforce the statutory right of previous consent, and involved only the question of enforcing that right, and a preliminary injunction was held to be necessary to enforce this statutory right.

In the present case, the consents having been in form given, the question of the validity of these consents is the vital question in this case, upon which the whole right to relief depends, and this question must, at the outset, be determined adversely to the legality before a preliminary injunction can go.

This application must be treated, therefore, not as if the ■attorney-general or the local authorities were here as guardians of the highway asking simply to enforce their statutory right to local consent, but upon the basis that they are asking to declare invalid a consent which has been in fact or form given.

An analogous case would be where a landowner who had in fact given a paper which was, or might fairly be claimed to be, a consent to the occupation of his land by a railroad company, without previous compensation, should file a bill to restrain their entrance without compensation, on the ground that the consent actually given was not the legal consent required by law.;

In such cases as in the present the right to a preliminary injunction would manifestly depend upon the nature of the questions raised by the' consent actually given and the principles applicable to those questions in view of the circumstances of the case. ' Viewing the application from this standpoint, and assuming the power of this court to pass upon the legality of this ordinance by final decree, I think it clear that the present application for preliminary injunction must be denied for the following reasons:

First. The questions here raised in reference to the ordinance and the rights of the defendant under it are purely legal questions, which are now pending before a court of law for decision, in a proceeding upon which the ordinance, if invalid, may be set aside altogether. The application for injunction, therefore, should not be allowed pending that decision. Attorney-General v. Paterson, 1 Stock. 624, 633.

Second. The validity of the objections now raised to the ordinance is not clear. Mr. Justice Depue, in an opinion refusing the certiorari to the relators, declared the objections not well founded, and the subsequent allowance of a certiorari by the supreme court, even if allowed only on the same objections, is, as I understand the effect of it, only an adjudication that the questions raised are such as should be reargued before the court on certiorari. If the question of doubt is to be disposed of upon the case as now presented here, the illegality of the ordinance cannot be considered as clearly made out. Upon the point whether there was a hearing there is a disputed question of fact which should not be settled on ex parte affidavits, and the legal questions involved arising from the construction of the statutes are such as should not be decided on preliminary injunction in this case.

The preliminary injunction now applied for must therefore be denied. I do not at this time at all consider the question of the nature and extent of the jurisdiction of this court in this cause on final decree and after the right at law has been determined. The court of errors and appeals, in West Jersey Traction Co. v. Camden Horse Railroad Co., 8 Dick. Ch. Rep. 163, have held that on bills filed by street railway companies, claiming rights under ordinances and consents of municipal authorities, the court of equity would, for the purposes of the case, decide upon the validity of the consent and ordinance and decide whether they gave the rights claimed, and although the present application by the attorney-general to enforce legal local consents is novel, yet this novelty may perhaps be considered to be a result of the recent statutes authorizing such consents and of the doubt which has arisen whether the rights of the public in highways, as represented by the attorney-general, can be sufficiently protected on certiorari proceedings either by the attorney-general or prosecutors having only a private interest. Important questions arose and were argued which involve the whole question as to the rights, remedies and form of procedure on the part of the public, where the consents are alleged - to be illegal, and I am not willing, on this application, to consider or decide these questions. The attorney-general is entitled to an adjudication upon these questions on final hearing.

The application to amend the information by adding prayer for process should be made by the attorney-general or over his signature.

Costs on this application will be costs in-the cause.


author: Reed, V. C.

text:
    Sarah C. Greer et al. v. Caroline W. Van Meter et al.
    1. When a parcel of land held in common is severed into two tracts by quit-claim deeds simultaneously interchanged by the tenants in common, and there is a store on one of the two lots, with a window through which light and air are received across the other lot, such window cannot be closed by the owner of the latter lot if the influx of light and air is reasonably necessary to the beneficial enjoyment of the store.
    2. By reason of the apparent and continuous quality of this enjoyment of light and air, the right to enjoy them will, upon severance of the title to the store from the title of the adjoining property, become an appurtenance of the former.
    ■ 3. The maxim “ expressio unius est exdmio alterms ” excludes only those matters which are so germane to those expressly mentioned as to raise a presumption that the former were in the mind of the parties when the express grant, contract or limitation was executed.
    4. A court of equity will enjoin the obstruction of an easement of light and air unless the threatened interference is so slight that it may be compensated by the payment of a small amount of damages.
    Ou bill for injunction.
    This bill is filed to enjoin the defendants from closing a window in a building belonging to the complainants.
    The complainants own a lot of land in Salem, on the corner of Market street and West Broadway. On it is a building known as the Starr building, entirely covering the surface of the lot. In dimensions the building is fifteen feet in width on Market street, and runs back the same width along West Broadway, a distance of fifty-four feet. The east front of the building is, therefore, fifteen feet on Market street, and the south front is fifty-four feet on West Broadway. Defendants’ lot also fronts on Market street, and runs back along complainants’ lot the same distance, viz., fifty-four feet. Upon this lot there is also a building, but it does not entirely cover the surface of the. plot. In the rear of this lot, and next to complainants’ lot, there is an open quadrangle. Looking out upon this open space there is a window in the wall of complainants’ building. It is this window which the defendants propose to entirely close by the extension of the rear portion of their building.
    An injunction against this proposed act is asked for upon-the ground that the complainants are invested with the right to the influx of air and light through this window; that, there is, therefore, imposed upon the adjoining property the burden of keeping unobstructed a space adjoining it sufficient to give access to that quantity of light and air to which the complainants are entitled. This right of the complainants is rested upon the construction of the deed which passed between the predecessors in title and the present parties.
    The devolution of title to these lots previous to 1864 is not material to the present inquiry. It is sufficient to say that, in 1864, these two tracts, with others, were held in common by Robert and Richard Greer and Edward Van Meter; the two Greers owning one undivided half interest in the two lots, and Van Meter owning the other undivided half interest.
    ■ In 1864, the two properties thus held under one title were voluntarily partitioned by- deeds interchanged between the tenants in common. By deed of quit-claim dated September 3d, 1864, Van Meter conveyed to the Greers the lot now owned by the complainants; and by a similar deed, the Greers conveyed to the defendants the lot now owned by them.
    It is admitted that at the date when these deeds were interchanged, the window already mentioned, although since altered in some respects, was substantially in size and location as it now is and as it has been maintained for the past thirty years.

      Mr. William, T. Hilliard, for the complainants.

      Mr. Morris H. Stratton, for the defendants.
   Reed, V. C.

The question propounded in this case is, whéther the complainants are entitled to a perpetual injunction, restraining the defendants from building against the window of the complainants. The' deeds to the predecessors of the present parties, as-has been already observed, were cross-conveyances. Both parties to them were grantors and grantees. The unity of estate was-severed by an act which transferred the title in portions of the large parcel in severalty at the same, moment. This, however, cannot affect the import of these deeds, for, as the law now stands in this state, their effect in respect to the claimed easement would be exactly similar, whether it springs from an implied grant in the one deed, or from an implied reservation in the other. Blakely v. Sharp, 1 Stock. 9 ; S. C., 2 Stock. 207; Seymour v. Lewis, 2 Beas. 439 ; Central Railroad Co. v. Valentine, 5 Dutch. 561; Fetters v. Humphrey, 3 C. E. Gr. 260; Denton v. Leddell, 8 C. E. Gr. 64.

Nor does the fact that the conveyances were simultaneous, and that they were made for the purpose of effecting a voluntary partition of property theretofore held by a single title, change the rule. Seymour v. Lewis, 2 Beas. 439, 444; Kilgour v. Ashcom, 5 Harr. & J. 82; Blakely v. Sharp, supra.

Now, the presence of a window in use for the purpose of admitting light and air at the time of the conveyances was an apparent easement, as well as' an easement which, in .its quality,was continuous. But it is not every apparent and continuous use of light and air in a building which will become an appurtenance of such building by reason of a severance of the title to the building from the title to its adjoining property. Such an easement must be reasonably necessary to the beneficial enjoyment of the building in which the windows are placed. Blakely v. Sharp, supra; Hayden v. Dutcher, 4 Stew. Eq. 217; Toothe v. Bryce, 5 Dick. Ch. Rep. 589, 608.

In ascertaining whether the window was reasonably necessary to the beneficial enjoyment of the complainants’ building, the condition of the premises at the time of the severance of the title is the point to be kept in view. Now, as the store was lighted at the time when the deeds were interchanged, this window seems to have been a very useful feature in carrying on the tailoring and clothing business, which was then conducted therein. The store was lighted by windows on Market street, but on the Broadway side there was no window, and the only' aperture for the admission of light was a small opening over one of the doors. So, the material reliance for the admission of light at the rear of this room fifty-four feet in length was this window on its north side.

The test of a reasonable convenience I take to be, whether the presence of the window was so useful to the store and the business conducted therein that it is reasonable to assume that its continued presence was in the mind of the parties and influenced the purchaser in arriving at the amount of the consideration paid at the time of the interchange of properties. Applying this test, in my judgment, the presence of this window was a substantial element in the transaction, and the window must be regarded as one reasonably convenient for the use of complainants’ property.

But it is claimed by the defendants that if these deeds would have operated to convey to the complainants, as an appurtenant, the right of access of light and air through this window, yet that this right, in this instance, is defeated by a stipulation contained in the deed made by Van Meter to the Greers. This stipulation appears in the following language :

“ It is specially understood and agreed between the parties, and this conveyance is made upon the express condition that the eaves of the said Starr Hall building, as well as the projection of the upper wall on the northern side thereof, which are over the line of Edward Van Meter aforesaid, are not to be disturbed or interfered with in any manner by the said Edward Van Meter, his heirs and assigns, whilst the present Starr Hall walls on that side shall remain in the position they are now; but if. at any time hereafter, the Starr Hall building shall be taken down and a new building put up, in that event the wall on the north side next to E. Van Meter’s line must go up perpendicularly from the foundation, and no privilege of eaves.”

The defendants insist that the effect of this clause is to exclude the Greers and their assigns from all privileges over the Van Meter lot save those privileges expressly granted by this stipulation. In support of this insistence is invoked the maxim “ expressio unius est exelusio alterius.”

It is claimed that the agreement in regard to the right.to still project the walls and eaves of the Starr building over the lot retained by the Van Meters impliedly negatives any grant of any other right, corporeal or incorporeal, over or upon the Van Meter lot. I am unable to yield my assent to this view. The maxim quoted embodies an obvious rule of logic, viz., that when parties have set out specifically the things for which they have bargained, it is a logical inference that they completed their contract in respect to all matters relating to the one concerning which there is an express agreement, and therefore it is entirely reasonable to assume that so far the agreement was the final expression of the parties, limiting their rights and obligations.

Now, it seems entirely plain that the maxim can only apply to those express provisions which are so related to the one implied that the latter must be regarded.ás in the mind of the parties at the time wheu the agreement was executed. If the express stipulation concerns one matter, it cannot be presumed that it excluded another matter entirely distinct. I think an illustration of the distinction in mind is afforded by the application of the maxim to the warranty of chattels. It must be kept in mind that the maxim is not only one of construction, but also one of evidence. Now, in respect to an express warranty of quality, Justice Maulé, in delivering judgment in the case of Dickson v. Zizinia, 10 C. B. 602, 610, remarked: “If a man sell a horse and warrants it to be sound, and the vendor knowing at the time that the purchaser wants it for the purpose of carrying a lady, and the horse, though sound, proves to be unfit for that purpose, this would be no breach of warranty; so, with respect to any other kind of warranty, the maxim ‘ expressumfacit cessare taciturn ’ applies to such cases; if this were not so, it would be necessary for the parties to every agreement to provide in terms that they are not to be understood not to be bound by anything which is not expressly set down — which would be manifestly inconvenient.” Broom Max. marg. 586.

But I imagine no legal gentleman would contend that an express warranty, in respect to quality, would tacitly exclude an otherwise implied warranty of title. The reason is that the two kinds of warranty are not so related that because one was expressly bargained for, it must be presumed that the other was in the mind of the parties, and therefore it follows that because they •did not choose to include it, they intended to exclude it. If the stipulation under consideration had dealt with the matter of light and air, and had fixed the extent of that right; if it had provided that no obstruction excluding such light or air should be erected within twenty years j' if it had restricted the distance from this window which any building should be placed upon the lot, or had it expressly bargained for the influx of light and air through some other window or windows in the north side of the Starr building, it might be conceded that the maxim invoked is pertinent. In such case the express agreement, in respect to this matter, would carry, with it the implication that it contained the entire measure of the complainants’ rights. Thus the extent of an easement to flood lots with backwater, which easement would pass by a conveyance, is limited by an express reservation fixing the extent of the right. But the clause in question does not deal with the right to receive light and air at all, but it stipulates for an entirely different right, viz., a right to have the walls and eaves, so long as the present Starr building shall stand, project over the land of the defendants just as they obtruded at the time of the execution of the conveyances.

And as the agreement in respect to the non-interference with the walls and eaves was entirely distinct from the matter of the reception of light and air, it can no more raise a presumption that the right to the latter was abandoned than if the deed had contained a clause stipulating for the right to stretch clothes-lines over the adjoining roof and attach the cord to one of defendants’ chimneys.

Uor does the implied right which seems to be contained in the stipulation to build as near to the Starr building as will not interfere with the projecting walls and eaves, carry with it the extinction of the right to light and air through this window, on the theory that the exercise of this implied' right would necessarily obstruct the window, for it is perceived that the right to build does not necessarily include the right to build along the entire length of the Starr building. The present building can be raised or a new building erected without interfering with the present window in any degree greater than at present.

My conclusion therefore is that the right to the reception of • light and air through this window over the rear of defendants’, lot, resides in the complainants.

The only remaining question concerns the right of. the complainants to invoke the aid of this court to enjoin the proposed, obstruction. The general power of the court to interpose to prevent the destruction of easements of this kind is too well settled for discussion. It is true that when the threatened obstruction of light and air will entail an injury so slight in degree as to be compensated for by a small amount of damages, courts of equity have declined to interfere. The amount of damages likely to result, necessary to confer jurisdiction upon a court of equity to use its injunction powers, is discussed in the Case of Dent v. Auction Mart Co., L. R. 2 Eq. Cas. 238, by Vice-Chancellor Wood, and by Sir George Jessel in Aynsley v. Glover, L. R. 18 Eq. Cas. 544. These deal with instances where there is threatened not an entire darkening of lights, but only a partial obscuration. In this case, the building which the defendants intend to erect will result in an entire closure of complainants’ north window.

I will advise a decree for the complainants.


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    The Inhabitants of the Township of Bloomfield v. The Mayor and Council of the Borough of Glen Ridge et al.
    1. Where a portion of the territory of a municipal corporation is throwr into a new municipality, the right to use and to regulate the use of sewers and hydrants within such territory passes to the new government.
    2. Boroughs created from townships, under the act of 1878, are distinct from thé townships in respect to their control over sewers and hydrants.

      On bill and demurrer.
    The bill states that the complainant is a township authorized to construct sewers and to contract with other municipalities for the right to connect its sewers with theirs; that it made a contract with the city of Orange for the building of a main outlet sewer, through which, by said contract, it is entitled to discharge sewage and to prohibit any other municipality, except the city of Orange and the township of Montclair, from doing so.
    Complainant paid $55,034 for its share of the expense, and issued bonds for the same, which are still outstanding; that the complainant constructed lateral sewers through its streets and paid for the same $30,863.97; that after the construction of these sewers the borough of Glen Ridge was organized, including within its limits a number of streets through which such lateral sewers were constructed; that all the sewers in the borough of Glen Ridge discharged through lateral sewers of the complainant into the main outlet sewer; that all the sewers were constructed as part of an entire system, and required to be under one management; that the township of Bloomfield adopted an ordinance for the management of its entire system; that since the formation of the borough of Glen Ridge it has adopted an ordinance for the control of said sewers within its borders, inconsistent with complainant’s ordinance; that before the formation of the borough of Glen Ridge the complainant had made a contract with the township of Montclair, giving Montclair leave to construct a sewer through Bloomfield to connect^with the main outlet sewer; that part of the Montclair sewer ran through the district now within the borough of Glen Ridge; that by the contract with Montclair complainant acquired the right to.use the sewer jointly with Montclair, for the consideration of the sum of $4,000 and the payment of its proportionate share of the cost of maintenance, operating and repair.
    The bill charges that in one instance the borough prevented a plumber from making a connection, under a permit- issued by the township of Bloomfield ; that, on the other hand, the borough has itself issued a number of permits, and has made a number of connections with the sewers within its limits.

      The prayer is for an injunction, restraining the defendants from interfering with the complainant’s sewers within the limits of the borough and- from exercising any management over such sewers, or authorizing any connection with said sewers, or authorizing any discharge in or through said sewers; also, for an injunction restraining the defendants from interfering with the complainant or its agents in making connections with the sewers within the limits of the borough of Glen Ridge.

      Mr. George 8. Hilton, for the complainant.

      Mr. Joseph G. Gallagher and Mr. Joseph Coult, for the defendants.
   Reed, V. C.

It appears that the township of Bloomfield, together with the city of Orange and the township of Montclair, built an outlet sewer, each to pay its proportion of the expenses; that Bloomfield has raised its proportion by issuing bonds, which are still outstanding. It appears' that the township of Bloomfield also constructed lateral sewers through its streets and paid for them $30,863.97.

It appears that since the construction of these sewers, a new borough has been organized, called the borough of Glen Ridge. It also appears that a portion of the territory of the township of Bloomfield has been included within the limits of the new borough, and that a number of streets in which these lateral sewers were placed, are now within the territorial limits of the borough. The question which the bill attempts to raise is, whether the right to control the use of such sewers as now lie within the borough, has passed to the borough government, or whether it still resides in the township authority.

The contention on the part of the township is, that it paid for these laterals, and is liable to pay for its part of the cost of the main sewer, by means of which the laterals became usable; that the title in the laterals still resides in it, and that it has the right to control and use its own property.

It is stated in the bill, for the purpose of adding to the force of this contention, that these sewers were built to be operated as a single system, and that it has, under a contract with the township of Montclair, become liable to pay a proportionate share of the expense of building and maintaining the sewer through the territory of Glen Ridge. I do not perceive that these facts can influence the decision of the question in hand. The sewers must be regarded as any other corporate property for which the municipality has paid, or for which it is liable to pay, either by reason of its outstanding bonds or by the terms of a contract still outstanding. It is corporate property, and the query is, to whom does the right to use and control it belong after it is thrown into the new municipality ? Many of the questions which spring out of the divisions of the territory of a municipality in respect to the property of the old municipality are entirely settled. For instance, it is settled that the legislature, by virtue of its control over municipal corporations, has the ability to fix the rights of the new and the old corporations in the property, and to adjust the burden of the corporate debts. Dill. Mun. Corp. § 127.

It is also settled that where no legislative adjustment is provided for, then the old corporation remains liable for all the debts. Dill. Mun. Corp. § 128. It is also settled that all transitory property, such as bonds, money in sinking funds and property of that class, and all real estate that lies within the limits of the old corporation, remains the property of the old municipality.

But in respect to property used for public purposes, such as engine-houses, school-houses, public markets, which are located upon lands which fall within the limits of the new corporation, there- exists some contrariety of judicial sentiment. There are cases which hold that the old corporation is not ^tripped of its title to such property. In Whithier v. Sanborn, 38 Me. 32, it was held that- the alterations of the lines of the school district, whereby a school-house was left in another district, would not change the right of property therein. It was also said, obiter, in School District v. Richardson, 23 Pick. 62, that the alteration of the lines of a school district would not change the property rights of the old district in a school-house thrown outside of its limits.

In Board of Health of Buena Vista Township v. City of East Saginaw, 45 Mich. 257, land had been conveyed to the board of health in trust for cemetery purposes for the township of Buena Vista. Afterwards, the city of East Saginaw was incorporated, including the cemetery. The court held that there was no common-law rule by which property can be transferred from one corporation to another without a grant, and as there was no statute, the property was unaffected by the change of corporate lines.

In Winona v. School District No. 82, 40 Minn. 13, a schoolhouse, by the alteration of the city lines, had been thrown .within the city limits; it was held that the old district still retained title to the school-house. The opinion of this case reviews, exhaustively, the cases which- have dealt with the subject. These cases,, as is perceived, involve the question of title .to school-houses, cemeteries and ministers’ houses, which, by reason of the manner in which, and the purpose for which, they are usable, may possibly be distinguishable from other kinds of municipal property lying within the new territory. But the reasoning upon which some of the cases go, viz., that there is no other way by which the old corporation can be deprived of its title except through its own grant or by express legislation, seems to include, within the rule announced, property of all kinds.

Opposed to the theory of these cases, there are dicta of great weight in favor of an opposite rule as the better one, viz., that property fixed to the land within the new corporation becomes the property of that municipality. The cases in which this doctrine has been asserted or approved are the following: Bridge Company v. East Hartford, 16 Conn. 171; School District v. Tapley, 1 Allen 48 ; Laramie County v. Albany County, 92 U. S. 315; Mount Pleasant v. Beckwith, 100 U. S. 525; Board v. Board, 30 W. Va. 424; North Hemstead v. Hemstead, 2 Wend. 109.

In my judgment, the cases which hold that the right to control this kind of property remains still in the old corporation, press unduly the notion that there must be an express grant or express legislation to pass control over such property to the new municipality. The title held by a municipality is of a peculiar kind. It is held by the corporation as a trustee for the public. Municipal corporations are organized for the purpose of creating agencies for the purchase, construction and operation of such appliances as are essential to the health, safety and convenience of the people and their property. The appliances so created, whether engine-house, market-house, school-house, lamps, water-pipes, hydrants, sewers, are so distributed as to be of the most efficient service to the public; they are brought into existence to be so used. How, when the territorial limits of a corporation are diminished by the excision of a part of its territory, the power of control of the public agent over those appliances is restricted to the newly-defined limits of the corporation. This is admittedly so, unless the legislature does what is unusual, confers a power upon its agents to act extra-territorially. It'is entirely settled that the powers of city officers are extended or restricted in conformity with the change of the boundaries of a municipality. Ehrgott v. Mayor of New York, 96 N. Y. 264; St. Louis Gaslight Co. v. St. Louis, 46 Mo. 121; Town of Toledo v. Edens, 59 Iowa 352; Coldwater v. Tucker, 36 Mich. 474; Strauss v. Pontiac, 40 Ill. 301.

It follows, therefore, that the power to use the property lying outside of the boundaries of the old corporation for municipal purposes is extinct. It is admitted in the case of Winona v. School District No. 82, supra, that the old corporation held only the bare title to the school-house which by change of line was thrown into the city. The old corporation could only sell it as it stood. It could not use it for the purpose to which it had been built and devoted.

How, as a matter of public policy, it is important that this kind of property shall be continuously employed in subserving the public purpose for which it was created. The only agency existing which can so use it, is that which has sprung into existence by the organization or creation of the new corporation. Now, it seems to me quite as reasonable to say that the legislature, by conferring the power to create the new corporation, implicitly conferred a power to employ all public property found within its limits, as it is to say that it meant that this property should lie idle. And if it be said that the new corporation may purchase it, it is answered, who is to fix the price? and, while negotiations are pending, who is to control and use this public property?

Now, the legislature undoubtedly, if its attention was called to this matter, would fix upon some method, judicial or otherwise, by which the distribution of municipal property and municipal debts could be adjusted in all instances like the one under consideration.

But, in the absence of such legislation, I think that the doctrine which I have announced is the most conducive to the public interest. Nor is it, as a rule, more inequitable than the other. When the property which falls within the new corporation is still to be paid for, it is, of course, inequitable that the whole burden of payment should fall upon the old corporation. But it is quite likely that such property, as I understand is the case in respect to the lateral sewers, has been already paid for. In such case, the people in the new government have paid their proportion of the expenses, and where the property is of a kind to be distributed through the territorial limits of the old corporation, like lamp-posts, hydrants, water-pipes and sewers, it is quite probable that the new corporation gets no more by the alteration of municipal lines than its inhabitants have paid for.

Upon the assumption, therefore, that the borough and the township are distinct corporations, I am of the opinion that the complainants have exhibited no ground for the relief they claim.

The complainants, however, insist that the parties to this suit do not stand on the footing of distinct municipalities.

The contention is that the borough, organized within the township limits, does not exclude the control of the township over all the objects of local government; that, like the city of Plainfield and the village of FJemington and certain commissions, only a portion of the local government is confided to it, while the residue remains in the larger municipality.

Now, it is undoubtedly true that the boroughs, as originally formed under the act of 1878, did not possess local powers coextensive with those of townships. Many of the objects of local government still remained in the township; but as, by supplements to the acts of 1878, the powers of the borough government were enlarged from time to time, so, pari passu, those of the townships were diminished, and the township governments were necessarily excluded from any control over the subjects which were thus confided to the borough government.

This consequence necessarily results from the well-settled doctrine, that there cannot be two municipal corporations for the same purposes, with coextensive powers of government, at the same time, over the same territory. Grant. Corp. 18; Dill. Mun. Corp. (3d ed.) § 184; Paterson v. Society, 4 Zab. 385; King v. Passmore, 3 T. R. 343.

Now, among the subjects which have been confided to the borough government under supplements to the general act, is that of control over sewers. P. L. of 1893 pp. 871, 460; P. L. of 1892 pp. 96, 397.

The effect of investing boroughs with this, control is to exclude the control of any other municipal corporation within the limits of the borough.

It is, therefore, apparent that the discussion with respect to the constitutionality of the act of 1895, which act purported to sever the territory of the boroughs organized under the act of 1878 from the territory of the township, is unimportant, for, unless all the supplements which have conferred powers upon the boroughs are unconstitutional, the act conferring control over sewers must be regarded as valid, and it, without further legislation, excludes the township from exercising any control, in respect to this branch of municipal government, within the limits of the borough.

I therefore regard the two municipalities, in respect to the matter now under consideration, as entirely distinct. This view strips the complainants, as already remarked, of the right to relief under this bill.

But there is another view, not discussed on the argument, which seems to me to defeat the complainant’s present suit. The borough of Glen Ridge has indicated its right to control and regulate these sewers, by an ordinance passed by its council. It has further indicated it, by permits granted by the appropriate officer, to its citizens, to connect with the sewers. This appears in the bill. The legality of these ordinances and these permits is reviewable in a court of law by the writ of certiorari; and so far as appears in this case, such remedy is entirely adequate. No ease of irreparable injury to property is presented; nor is there presented a case where a municipal corporation is illegally attempting, to exercise its corporate power, to strip a citizen of his property. In the absence of either of these features, even conceding the right of the township to regulate it, there is no such interference with its property as cannot be adequately remedied by a resort to a writ of certiorari. For this reason also, I think, the demurrer is properly interposed.


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    The Inhabitants of the Township of Bloomfield v. The Mayor and Council of the Borough of Glen Ridge et al.
    On bill and demurrer.
    The bill in this case sets out that the township of Bloomfield entered into a contract with the Orange Water Company to buy water for city purposes, to be taken from the mains and hydrants of said company already located in the streets of said township. The township was to pay $30 per annum for each hydrant for the term of eight years and six months; that the borough of Glen Ridge was formed; that in the territory included within Glen Ridge forty-eight of the hydrants were set, and after the organization of the borough of Glen Ridge it passed an ordinance regulating the use of these hydrants, which ordinance deprives the township of Bloomfield not only of the exclusive use of these hydrants, but of any use of them.
    The prayers are that .the defendants may be enjoined from controlling or regulating these hydrants or from interfering with the complainant in its use of said hydrants.

      Mr. George S. Hilton, for the complainant.

      Mr. Joseph G. Gallagher and Mr. Joseph Coult, for the defendants.
   Reed, V. C.

The same principles are involved in this case as in the preceding ease. For the reasons there given, I conclude that the control over the hydrants which, by the alteration of the township lines, are thrown into the borough limits, passed to the borough government. The borough has the right to control hydrants. P. L. of 1878 p. 12 §§ 5, 11; P. L. of 1888 p. 226.

The township being stripped of its right to control them, it has no tooting to ask this court to enjoin the defendants from doing so or from interfering with the complainant in doing so.

Decree will be advised for the demurrants.


author: The Chancellor.

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    Julian Gerard Buckley and Mary Kemble Slack v. Lewis Perrine and Addie Slack Perrine.
    1. By the supplement of May 9th, 1889 (P. L. of 1889 p. 1$6), to the Habeas Corpus act, the vice-chancellors have power to use the writ of habeas corpus according to its appropriate office, as the chancellor and justices of the supreme court may use it, to test the legality of personal restraint.

      2. In conferring this power the legislature did not clothe the vice-chancellors with the jurisdiction of the chancellor, as parens patries, to award the permanent custody of infants, which is frequently exercised by use of the writ of habeas corpus as a means of bringing respondents before the court.
    S. When the vice-chancellors act in cases within the latter jurisdiction, they do so as in other equity cases, as advisers of the chancellor.
    4. Jurisdiction of the parties to a controversy, as well as of the subject-matter thereof, is necessary to the validity of a judgment of a court therein.
    On the 9th day of October, 1895, Julian Gerard Buckley, in behalf of his sister, Mary Kemble Slack, presented a petition entitled “In Chancery of New Jersey,” to John T. Bird, Esq., one of the vice-chancellors of the state. The petition is addressed “To His Honor John T. Bird, Vice-Chancellor of the State of New Jersey,” and on the day of its presentation was filed in the chancery clerk’s office. In the petition it is alleged that Mary Kemble Slack is the widow of William Hall Slack, deceased, who died in this state on the 2d of October, 1895; that there were born to William Hall Slack and Mary Kemble Slack two children, Mary and Addie, aged respectively eight and ten years; that in March, 1894, Slack deserted his wife and children and went to reside at Trenton, in this state, with Lewis Perrine and his wife, and thereafter did not provide for the maintenance and support of his wife and children; that at his request, on the 16th of October, 1894, Mrs. Slack, who then had the custody of the children, permitted them to visit their father, at the house of Lewis Perrine, at Trenton; that the children have been detained hitherto at Trenton, first by their father and then by Perrine and his wife; that the mother has endeavored to regain possession of them; that Lewis Perrine refuses to give them up to her, alleging that, by his will, the father of the children made the wife of Lewis Perrine their guardian and awarded to her their custody. The petition prays that a writ of habeas corpus may issue to bring the children before John T. Bird, vice-chancellor, that they may be released from their illegal restraint by Lewis Perrine and delivered to the petitioner and their mother.
    Upon the presentation of this petition, the vice-chancellor to whom it was addressed, endorsed upon a writ of habeas corpus these letters and words : “Allowed by the statute. John T. Bird, V. C.” The writ commands the production of the children before “John T. Bird, Vice-Chancellor of the State of New Jersey,” and is attested in the name of the same official. It is sealed with the seal of the court of chancery, signed by the clerk of that court, endorsed as though in a cause pending in that court, and now remains on file in the chancery clerk’s office.
    Upon the return of the writ, an order was made by “John T. Bird, V. C.,” endorsed as though in a cause pending in the court of chancery, like the writ of habeas corpus, which order recited that Lewis Perrine claimed to have been unable to prepare a return to the writ of habeas corpus, and also that Addie Slack Perrine was the real custodian of the children; that the court was of opinion that time for making the return should be extended, “ and,” using the language of the order,
    “ that in order to properly raise the issue to be tried in the cause touching and concerning the permanent custody of the aforesaid minor children, that Addie Slack Perrine should be made a respondent with him in the said cause,”
    and it was thereupon ordered (the solicitors of the respective parties to the proceeding and of Addie Slack Perrine consenting) that the return day be extended and that Addie Slack Perrine be made a party respondent.
    Later, counsel filed with the clerk of the court of chancery formal written appearances for Lewis Perrine and his wife, as though in a cause pending in that court between Julian Gerard Buckley as petitioner and Lewis Perrine as respondent. And later, they filed a paper, entitled “ In Chancery of New Jersey,” addressed to “John T. Bird, one of the Vice-Chancellors of the State of New Jersey,” and styled “The answer of Lewis Perrine to the petition of Julian Gerard Buckley and for his return to the writ of habeas corpus thereon issued.” This paper denies that Lewis Perrine has or had the custody of the infants, and avers that his wife, Addie Slack Perrine, has such custody under the appointment of her as the testamentary guardian and custodian of the infants by their father’s will. It also avers that William Hall Slack was, at the time of his death, domiciled in the District of Columbia, where his will had been theretofore offered for probate, and it insists that, by such offer for probate, the supreme court of the District of Columbia has acquired jurisdiction of all questions as to the validity of the will and as to. the custody and guardianship of the infants. It denies the right of John T. Bird, vice-chancellor, to determine the question of the legal right to the custody of the children. It also objects that Julian Gr. Buckley is without power and right to prosecute the petition in behalf of his sister, who is sui juris.

    By a document of similar character, entitled and addressed in the same way, Addie Slack Perrine also responded that she has the bodies of the children before the court as commanded; that she is the sister of the father of the children, and detains the infants in her control,- and has declined to deliver them to the petitioner or any other person ; that she detains them in virtue of the laws in force in the District of .Columbia; that the children, their father and their mother were all domiciled in the District of Columbia, and the children have no property in New Jersey and were only temporarily sojourning in this state with their father at the time of his death; that by the laws of the District of Columbia the father was empowered to effectually bestow the custody of his infant children by deed or will; that on the 12th of July, 1895, William Hall Slack made his will, disposing of the custody of his infant daughters to the respondent Addie Slack Perrine; that on the death of the father, on. the 2d of October, 1895, the respondent took the custody of the children; that on the 5th of October, 1895, the will of Mr. Slack was offered for probate in the District of Columbia, and the supreme court of that district has taken the jurisdiction in the premises and is now passing upon the validity of the will; that such question of validity will determine the right of custody of the children, and the supreme court of the District of Columbia, having first taken jurisdiction of the question, is entitled to retain it; that as she has the legal right to the custody of the children, it cannot be disturbed except for the benefit of the infants; that the mother is not a fit and proper person to have the care of girls of tender years, and the interest of the infants lies in their remaining in the custody of the respondent; that the mother is intemperate, of violent temper, addicted to the use of profane, indecent and lewd language, and has conducted herself in public and private in a lewd and indecent manner.
    On the 18th of October, 1895, by the consent of counsel for Lewis Perrine and Addie Slack Perrine, John T. Bird, vice-chancellor, ordered that the petition and writ be amended by inserting therein the name of Mary Kemble Slack as petitioner, claiming the custody of the children, because, as the order recites, Addie Slack Perrine claims that Mary Kemble Slack, using the language of the order,
    “is not a fit and proper person to have their custody; and the said Mary Kemble Slack being desirous of answering the said return in her own right and person, to do which it becomes necessary for her to be made a party petitioner in this cause” &c.
    Mr. Buckley and Mr. Slack then traversed or answered the return of Mrs. Perrine, entitling the document as a cause in chancery, like the other papers filed in the matter. This paper-admits that Mrs. Perrine is the sister of William Hall Slack, the father of the children, and that she detains the children. It denies that the detention is justifiable under the laws of the District of Columbia. It admits that William Hall Slack was domiciled in the District of Columbia to the time of his death. It denies that the children were domiciled there, and that the question as to their custody depeuds upon the laws in force there. It denies that a will of William Hall Slack exists, and that application for probate of a paper purporting to be such a will ousted this court of jurisdiction to determine the right to the custody of the children. It insists that that right is determined by the laws of this state, and also that it is not to the interest of the children to remain in the custody of Mrs. Perrine, and that' it is to their interest to go to the custody of their mother, their guardian by nature and for nurture, because the mother is a fit and proper person, and is not intemperate, of violent temper, addicted to the use of profane, lewd and indecent language, dr insane, or an adulteress &c.
    . A traverse is also filed to the answer or return of Lewis Perrine.
    On the 9th of November, 1895, on application by the solicitors of both parties, Vice-Chancellor Bird appointed a commissioner to take the depositions of witnesses, de bene esse, in the city of Washington.
    Later, by verbal direction, he committed the custody of the children, pending the proceedings, to the custody of Mr. and Mrs. Perrine, with privilege to their mother to see them.
    On the 21st of November the vice-chancellor ordered that the hearing upon the issue, whether or not the mother is a fit and proper person to have the custody of her children, proceed before him on the 26th of November.
    On the 25th of November ex parte application, in behalf of Mrs. Slack, was made to the chancellor to refer the proceedings to Vice-Chancellor Bird (as though they were regularly pending in' the court of chancery), to hear the same for the chancellor and report thereon to him, and advise what order or decree should be made therein, and an order of reference was accordingly made.
    ■ The following day the counsel for the respondents, because their clients had taken the children out of New Jersey contrary to their advice, withdrew from the case.
    On the same day, which was the day previously fixed for trial by the order of the vice-chancellor, the solicitors of the respondents having stated that the respondents had taken the children beyond the jurisdiction of the court of chancery to the District of Columbia, Vice-Chancellor Bird advised an order in case of each respondent, to the effect that they be adjudged guilty of contempt, because their conduct in so doing was calculated to impede and prejudice the rights and remedies of the petitioner. These orders were subsequently signed by the chancellor.
    On the same day John T. Bird, vice-chancellor, made an order, mmo pro tune, signed by himself, not advised to the chancellor, as of the 11th day of November, that pending proceedings the custody of the children should remain with the Perrines, and that the mother should see the children once a week at the state-house in Trenton.
    On the same day he advised a decree in chancery, which recited the removal of the children from the jurisdiction, the withdrawal of the respondents’ counsel from the case, the hearing of the proofs offered by the petitioner, and adjudged that the, mother is a fit and proper person to have the custody of the children, and that the custody of the children be awarded to her during their minority. This advised decree was also subsequently signed by the chancellor.
    ' Motion is now made to set aside the orders which adjudge the respondents to be -in contempt and the decree which awards the custody of the children to their mother.

      Mr. Richard V. Lindabury and Mr. Chauncy H. Beasley, for the motion.

      Mr. Cortlandt Parker, Mr. Garret D. W. Vroom and Mr. Edwin Robert Walker, contra.

   The Chancellor.

. The principal objection to the validity of the orders and decree in question is, that they are not made in a proceeding in the court of-chancery in which that.court had jurisdiction of the respondents.

An examination of the petition for the writ of habeas corpus exhibits that it was an application for the appropriate use of that writ, to wit, to free the infant children of Mrs. Slack-from the alleged illegal restraint of Lewis Perrine. -. It did not invoke the exercise of the gitasi-paternal jurisdiction of the court of chancery over the welfare of the' infants.

I 'apprehend that such an application, was properly made to a vice-chancellor in virtue of the supplement of May 9th, 1889 (P. L. of 1889 p. 426), to the Habeas Corpus act, which provides, using its language, that

vice-chancellors, or either of them, shall have the same jurisdiction, power and authority to grant all writs of habeas corpus, and to hear and determine the same, that the chancellor of this state now has, and that he and they shall proceed in the same manner.”

The power of the chancellor to issue writs of habeas corpus now is, and when that supplement was enacted was, co-extensive with the power exercised by the justices of the supreme court. Baird v. Baird, 4 C. E Gr. 481; P. L. of 1878 p. 370.

As the writ is not a prerogative writ of a court whose jurisdiction, in respect of it, is preserved and protected by the constitution, the legislative power to extend its use to the vice-chancellors does not appear to be questionable.

The office of the writ, as already intimated, is to secure the production of the body of one restrained, in order that it may be freed from illegal restraint, and the matter presented for determination by the tribunal using the writ is the legality or illegality of the restraint complained of.

Incident to release from illegal restraint, for the purpose of making the release safe and effectual, the court will sometimes go beyond the mere removal of unlawful restraint and transfer the body brought before it by the writ into the custody of him who has the clear legal right, but this is the limit of the award of custody under the writ. Baird v. Baird, supra. The jurisdiction thus defined is widely distinguishable from the jurisdiction of the chancellor, as parens patries, to award the permanent custody of an infant, and it does not follow, from the fact that the chancellor sometimes uses the writ of habeas corpus as the means of bringing parties before him, in order that he may effectually exercise the latter jurisdiction, that the legislative award of the power to the vice-chancellors to use the writ of habeas corpus evinces an intent that the chancellor’s equitable jurisdiction shall follow. The statute does not expressly declare a purpose to clothe the vice-chancellors with the chancellor’s qwasi-paternal jurisdiction in disposing of the custody of infants, and such a purpose cannot be implied from the language of the act without the aid of the untenable assumption that the chancellor’s jurisdiction over the custody of infants is an indissoluble adjunct of the writ of habeas corpus in his hands.

In People v. Mercein, 8 Paige 55, Chancellor Walworth, speaking as to the propriety of the use of the writ in the exercise of the chancellor’s jurisdiction, said: “A writ of habeas corpus ad subjiciendum, however, is not, either by the common law or under the provisions of the revised statutes, the proper mode of instituting a proceeding to try the legal right of a party to the guardianship of an infant. This court, therefore, upon such a writ, will exercise its discretion in disposing of the custody of the infant upon the same principles which regulate the exercise of a similar discretion by other courts and officers who are authorized to allow the writ in similar cases.”

In Baird v. Baird, Chief-Justice Beasley states the practice in this way: “If the simple purpose was to free from illegal restraint, the proceeding was either in the law courts or in chancery, by the instrumentality of the habeas corpus, and in such proceeding a court had no power to make any order which was not within the competency of a law judge. But, on the other hand, when the object was to fix the status of a minor with regard to permanent custody or guardianship, and to settle, for any course of time, the rights of contending parties to such custody, then the application was to the chancellor, by virtue of his general superintendency over the concerns of infants. The proceeding, then, was by petition to him as parens patries. This distinction between the chancellor’s jurisdiction over infants by habeas corpus and as wards of the court is clearly marked in the practice and has been often noted by the court.” It was held in that case that the pleadings, proofs and decree evinced that the court of chancery acted under its general superintendency over the affairs of infants as distinguishable from its more limited jurisdiction in proceedings by habeas corpus.

Again, in English v. English, 5 Stew. Eq. 738, the proceeding in chancery was by petition for a writ of habeas corpus, which alleged facts to invoke the exercise of the court’s jurisdiction over the welfare of infants, and the return put that matter in issue. Mr. Justice Knapp,'in writing the opinion of the court of errors and1-appeals, said: “The jurisdiction’of the-court of chancery to settle arid dispose of the care and custody , of infants through proceedings like this is established. .The parties, in their litigation have, by their pleadings and proofs, presented issues» within the-cognizance of that court, under its general jurisdiction as public guardian of the rights and interests of infantsiSuch jurisdiction is not, by the use of the writ of habeas corpus to bring the infants into court, cut down and restricted to those limits which outline and bound a strict proceeding on habeas corpus. The writ serves a purpose merely ■ancillary to the more 'general design of the suit to secure a definite disposition of therti aS-wards of the court Baird v. Baird, 4 C. E. Gr. 482.

And again, in the same court, in Richards v. Collins, 18 Stew. Eq. 283, where a- writ of habeas corpus was used in chancery upon-petition to the chancellor for disposition of ’the custody of »an infant,- the-same judge said : “The court may stop with the mere removal of restraint, or, in its discretion, may go further and determine for the time being the custody of the subject of the writ. But the court of chancery exercises a far1 more extended control-in respect to the right of custody of .children in virtue of an inherent jurisdiction over that subject. In the exercise of this higher, authority that-court may permanently fix'the status of infants-'even in disregard of the legal rights of prirents, -where the welfare of the infants requires it. Nor is it material 4o the exercise of this power in what way the subject is brought into 'court. In Baird v. Baird the petition was to the chancellor as one of the judicial officers authorized by statute to issue the writ, arid not to him in the exercise of the more general jurisdiction of the court of chancery. But the return to the writ and the answer to the ■ return filed by the petitioner presented a case for the cognizance of the court in its more general jurisdiction. The chancellor doubted whether, im the proceeding, the general ■powers of the court-of equity were invoked, yet, on appeal, the court of errors declared that, when an issue is' made by the pleadings and proofs on the question of the right to the permanent custody of infants, the case addresses itself to the general authority of equity' as • the ■ public guardiari of infants. It becomes necessary in this case to determine in which of these aspects it stands before the court. In my opinion, the pleadings present a controversy such as addressed itself to the general equitable powers of the court.”

Thus it is made clear that the chancery jurisdiction over the welfare and consequent custody of infants is entirely independent of its limited jurisdiction by habeas corpus, and that the former jurisdiction is invoked by pleadings presenting facts which demand its exercise, and that when the writ of habeas corpus is used in connection with its exercise, it renders only an ancillary service.

It follows that a statute which confers upon the vice-chancellors merely the same power to issue writs of habeas corpus and hear and determine them that the chancellor has, cannot be construed to confer upon them the jurisdiction'of the court of chancery over the well-being of infants. Taking this view of the construction of the statute, it is unnecessary to question the power of the legislature, under the constitution, to effect such a purpose.

. Prior to the order of reference the proceeding considered was before Vice-Chancellor Bird, acting under the statute, and not in the court of chancery. And the proceeding evidently was not intended by the vice-chancellor to be in the court of chancery. It is true the papers were filed with the clerk of the court of chancery, and the writ was sealed with the court’s seal and signed by the chancery clerk, and the papers were entitled as in a cause in the court of chancery, but it nowhere appears that any of those acts were done by the knowledge or with the permission of the court of chancery. The statute provides that a vice-chancellor issuing a writ of habeas corpus, and hearing and determining it, shall proceed in the same manner” as the chancellor does upon habeas corpus, and I think it is evident, upon inspection of the papers in this proceeding, that the design was not to institute a suit in the court of chancery, when the original petition was presented, but to proceed before the vice-chancellor under the statute, as nearly like a similar proceeding before the chancellor as possible. The only judicial power invoked, prior to the application for the order of reference, was “John T. Bird, Vice-Chancellor of the State of New Jersey.”

It is remembered that, by article 6, section 4, placitum 1 of the constitution of the State of New Jersey, the court of chancery is made to consist of “ a chancellor,” and that within the last half century the business of that court has so outgrown the capacity of a single man that the legislature has created advisers of the chancellor, called “ vice-chancellors,” who, under orders made for that purpose by the chancellor, in his stead, hear matters pending in the court of chancery, and advise him what' orders and decrees should be made in them, and that while their advised orders and decrees are not necessarily accepted and signed by the chancellor, yet, because of their great number, to facilitate the dispatch of the court’s business, in absence of objection, it is the practice of the chancellor to sign them without questioning their correctness, and thereby make them the orders and decrees of the court. The action of the chancellor is thus needed to give effect to the acts of the vice-chancellors as proceedings in the court of chancery.

Now, it is observed that, after the petition was presented to Vice-Chancellor Bird and a writ of habeas corpus was allowed, the time for the return ,of the writ, by consent of the solicitors of both parties, was extended and Mrs. Perrine was made a party respondent, so that an issue as to the permanent custody of the infants might be raised, and later, that Mrs. Perrine, by her answer to the petition, insisted that, as guardian appointed by the will of the father of the children, she was entitled to their custody and could not be disturbed in it except for the benefit of the infants, and then proceeded to raise an issue as to the disposition of the infants according to their welfare, by alleging that, in fact, their mother was not a fit and proper person to have the care of girls of tender years, and that the interest of the infants lay in their continuance in custody of herself, the respondent, and that later, Mrs. Slack became a party petitioner, and, accepting the equitable issue tendered, replied to the answer of Mrs. Perrine, traversing the allegations as to her unfitness to have thr custody of her children, and alleging that it was not to the interest of the infants to remain in the custody of Mrs. Perrine, but was to their interest to be restored to the custody of their mother. Thus, by the pleadings, an issue cognizable by the court of chancery alone was presented. The case having taken this shape, it became desirable to transfer it to the court of chancery. Such was the situation when the counsel for the petitioners applied to the chancellor, ex parte, and obtained an order which treated the matter as one pending in the court of chancery, and, as such, referred it to Vice-Chancellor Bird to hear for the chancellor. I do not doubt that if the parties had, with knowledge of the order of reference, voluntarily proceeded to try the issues before Vice-Chancellor Bird, as an advisory officer of this court, they would have been fully within the court’s jurisdiction. Baird v. Baird, supra. The difficulty encountered is that the respondents did not so proceed. The next steps in the matter were the withdrawal of their counsel from the case and the immediate procedure of the vice-chancellor, under the urgency of the petitioners’ counsel, to hear the case ex parte and advise the orders and decree complained of, as in a proceeding pending in this court.

For aught that appears to the contrary, the respondents were in utter ignorance of the order of reference. They had no notice of the application for it. They did not, after it was made, in any manner assent to proceed in chancery under it. They have never been brought into the court of chancery by notice or process of any kind. The court had jurisdiction of the issues between the parties, it is true, and its order of reference expressed its willingness to proceed with the determination of those issues, but the order was had without the assent of the respondents, and did not give the court of chancery jurisdiction over them. The court lacked jurisdiction of those parties, which, beyond all question, was necessaiy to the validity of the orders and decree complained of. In absence of it, the orders and decree must be held to be without force, and for that reason, so far as they purport to be proceedings of this court, they will be set aside.

The motion must prevail.