text:
    Francis J. Swayze, executor, &c., complainant, v. Carlisle R. Lane et al., defendants.
    [Argued March 17th, 1915.
    Decided June 14th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose- opinion is reported in 82 N. J. Eq. 127. Reported, also, sub nom. Swayze, Executor, &c., v. Huntington et al., 88 N. J. Eq. 335.

      Messrs. Coult & Smith and Mr. Gilbert Collins, for the appellants.

      Mr. Edward M. Colie, Mr. John R. Hardin, Mr. Edward S. Atwater, Mr. Charles E. Littlefield (of the New York bar), Mr. Thomas P. McKenna and Mr. John W. Sheehan (of the Massachusetts bar), for the respondents.
   Per Curiam.

These are cross-appeals from a decree entered in the court of chancery. The decree in question so far conforms to the remittitur of this court entered on a review of earlier proceedings in the case, except as to the matter of counsel fees, which was not before us.

For the reasons stated in our opinion upon which that remittitur was founded, all of the decree appealed from, except those portions dealing with the matter of counsel fees, will be affirmed. As to counsel fees the decree was as follows: “A counsel fee of $5,000 to William A. Smith, as guardian ad litem and of counsel with tire infant defendants; and a counsel fee of $5,000 to Thomas P. McKenna, and Sheehan & Cutting of counsel with Charles R. Lane, together with disbursements to Messrs. Mc-Kenna & Sheehan of $500.” The allowance of $5,500 to Messrs. McKenna & Sheehan is, in bur opinion, without legal justification, and that portion of the decree awarding it must be reversed in tato. The allowance to Mr. Smith we consider excessive, and think $1,500 a reasonable compensation for his services as guardian ad litem of and as counsel for tire infant defendants. The portion of the decree dealing with this latter allowance will be modified so as to fix the amount at the sum designated.

For affirmance — None.

For reversal — None.

For modification — The Chief-Justice, Garrison, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Williams — 12.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Anna R. Waln et al., complainants and respondents, v. Mary R. Waln et al., defendants and appellants.
    [Submitted March 22d, 1915.
    Decided June 14th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. 293.

      Mr. Barton B. Huntchinson, for the appellants.

      Mr. Charles Mecum, for the respondents.
   Per Curiam.

John E. Waln, the testator, devised Iris homestead farm, consisting of two hundred and ninety-three acres, to his wife and five daughters. His wife predeceased him, in October, 1895.

At the time -of the death of the'testator, August 13th, 1896, his five daughters survived him.

The complainants, two daughters of the testator, brought their suit for the partition of the homestead farm, making the testator’s three remaining daughters, together with the husband of a married one, defendants.

The defendants filed a joint and several plea to the whole bill and set up as a bar to the complainants’ suit a clause in the testator’s will which reads: “I do order and direct that the homestead property be not sold so long as my wife or daughters require or need the same for a home.” The decree, advised by the learned vice-chancellor overruling the plea, based on his construction of the clause of the will above quoted, is affirmed. The other matters discussed by the vice-chancellor in his conclusions have not been considered and are not passed upon.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams —14.

For reversal — None.


text:
    J. Louis White, appellant, v. Anna G. White, respondent.
    [Argued March 5th. 1915.
    Decided June 14th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens.

      Messrs. Hunt & Anderson, for the appellant.

      Messrs. Kalisch & Kalisch, for the respondent.
   Per Curiam.

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

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams — 14.

For reversal — None.


author: Walker, Chancellor.

text:
    Edwin Robert Walker, Chancellor.
    John B. Emery, Frederic W. Stevens, Eugene Stevenson, Edmund B. Leaming, James E. Howell, Vivian M. Lewis, John H. Backes and John Griffin, Vice-Chancellors.
    George Hicks et al. v. Walter Hicks et al.
    [Decided May 25th, 1915.]
    A testator in his will directed that his minor children should each have his share of his real and personal property upon reaching the age of twenty-one years; provided the guardian appointed by the will (who was vested with the powers of a trustee) in his judgment considered that the minor was competent to properly care for the same, and that if the guardian did not consider the minor capable of properly caring for such share, then he was directed to pay to such incompetent minor the rents and interest derived from his portion of the property and hold the rest in trust until in his judgment such minor was competent to receive and properly care for the same. The guardian refused to act and the orphans court appointed a substituted trustee in his place. — Held, that the power devolved upon the guardian-trustee was not a naked power, but was coupled with a trust and passed to the substituted trustee and must be exercised by him.
    On objections to master’s report.

      Messrs. Berry & Riggins, for the complainants.
   Walker, Chancellor.

Tbis matter is before me on oral objections by the complainants, under rule 166, to a master’s report concerning the rights of parties in a suit for the partition of lands. The complainants and defendants hold under the last will and testament of Samuel J. Hicks, deceased, by the second paragraph of which the testator gave to his wife, now deceased, the income of his estate as long as she remained his widow. The fourth paragraph reads:

“Fourth. At the mamage or death of my said wife, Adelia Hicks, it is my desire and it is the condition of this my last will and testament that all of my real and personal property of every description shall be equally distributed and divided among my heirs, as follows: my son, George Hicks, and his son, Howard Hicks, my grandsons, Walter Hicks and Daniel Hicks; my granddaughter Sadie Hicks; and my adopted son, Samuel James Schaffer; to have to hold the same to their heirs and assigns forever. Should either of the above-named heirs die before reaching the age of 21 years it is my will and it is hereby directed that all of my real estate and personal property above mentioned shall be equally distributed to and divided among the said remaining heirs above mentioned in this my last will and testament.”

Bythe fifth paragraph he let in after-born children of his son George Hicks to share equally with those mentioned in the fourth paragraph. The seventh paragraph is as follows:

“Seventh. It is further understood, desired and hereby directed that at the marriage or death of my said wife, Adelia Hicks, that my son, George Hicks, shall receive his share or portion of my said real estate and personal property hereinbefore mentioned as soon as the Executor of this will can arrange the business matters necessary for such settlement. All minor children shall each have his or her share or portion of the aforesaid real' estate and personal property upon reaching- the age of 21 years, provided, the guardian, in his judgment, considers that such minor is competent to properly care for the same. If the guardian does not consider that the said minor or minors are capable of properly caring for such share in the division of my real estate and personal property then the said guardian is hereby directed to pay to such incompetent minor or minors the rents and interests derived from his oilier portion of my real estate and personal property, and hold in trust such real estate and personal property until in his judgment such minor or minors are competent to receive and properly care for the same.”

By the sixth paragraph he appointed A. J. Rider executor and one Morris Craft “guardian for all minor heirs.”

Before the death of the testator there was born to George Hicks a daughter, Elise E., now seven years of age. Morris Craft, the “guardian of all minors,” refused to act; whereupon the orphans court of Ocean county appointed A. J. Rider substituted trustee under the will.

All of the defendant devisees were under age at the time of the death of the testator, but, with the exception of Elise E., had attained their majority before the filing of the bill.

The master found that the complainant was seized of an undivided seventh part of the premises, and that the remaining six devisees — the five mentioned in the fourth paragraph and the after-born child of George — were each seized of an undivided seventh part, “subject to the rights thereunder, if any, of the defendant Anson J. Rider, substituted trustee under the last will and testament of Samuel J. Hicks, deceased;” and that the share of the infant, Elise E., was subject to being divested if she died before arriving at the age of one and twenty. He also reported upon the rights of the spouses of the respective devisees.

The criticism made of the master’s report is that it fails to define the interest of Anson J. Rider, the substituted trustee, in the shares of the defendant devisees, which I am now called upon to do.

By the fourth paragraph of the will the complainant and defendant devisees each acquired a vested estate in remainder of an undivided séventh part, subject to being divested upon the occurrence of the event therein mentioned. Trenton Trust and Safe Deposit Co. v. Moore, 83 N. J. Eq. 584; affirmed, S. C., ante p. 194. But, by the provisions of the seventh paragraph, this estate was modified, as to those of the devisees who were minors at the time of the death of the testator, and thereunder they took a vested equitable remainder, the legal title being thereby, at least by implication, vested in the trustee, called the “guardian,” and they were to enjoy their equitable rights upon reaching the age of twenty-one, provided that in the exercise of an honest judgment the trustee regarded them as fit and competent to care for the same.

The scheme of the testator is not obscure. His intention was to divide his estate equally per capita between his offspring and an adopted son. His son George, the complainant, who was of age, was to have his share immediately upon the death of his mother. The remaining devisees, his grandchildren and adopted son, were to have their shares upon arriving at majority, if, in the judgment of the guardian or trustee, he or she was competent, and in the meantime the trustee was to administer the same, if the trustee, at the time designated, regarded any one or all not capable of properly managing their shares, then, by the express language of the will, the estate was to pass to the trustee, and the income thereof paid to the devisees until, in his judgment, the devisees meet the test provided by the will.

This construction of the testament harmonizes substantially with the views expressed by counsel in their brief, but the point they make is, that the discretion to withhold from any adult devisee his or her share on grounds of incompetence, is a purely personal discretion vested by the testator in Morris Craft, and exercisable by him alone, and with the refusal of Morris Craft to accept .the trust such discretion perished and cannot be exercised by his successor in the trirst, the defendant Anson J. Rider. In my opinion, the power-conferred upon the guardian, or trustee, Morris Craft, was not one of mere personal confidence. Uppermost in the testator’s mind, as expressed by his will, was the competence of his offspring to care for their inheritance, and of this he appointed Craft to be the judge. The power to sit in judgment is not a naked power. It was coupled with a trust which this court will execute under equitable rules, if the donee of the power fails to discharge his duty. This may be done by the court itself, or by a trustee to be appointed. The power in this case passed to the substituted trustee and must be exercised by him. Pedrick v. Pedrick, 48 N. J. Eq. 313; affirmed, S. C., 50 N. J. Eq. 479. It seems to me that the exercise of the power-ought to be compelled by the court in this suit.

Let the cause be re-referred to the master to ascertain and report the opinion of Mr. Rider as to the competence of the devisees. The discretion which the testator devolved upon the trustee is not a capricious one, but the exercise of a sound judgment which is roviewable in this court.

The shares of those whom the trustee regards as competent will be declared vested in them, and the shares of those whom he regards as incompetent will be declared to be in the trustee. The share of Elise E. will be declared to be in the trustee.

Upon distribution the trustee will give bond.


text:
    Catherine Keiler and John Keiler, her husband, v. Carrie E. Bunn and Charles H. Bunn, her husband.
    [Decided June, 8th, 1915.]
    1. A tender is good only if the correct amount is offered to be paid including all costs due, for the complainant is entitled to exact the full amount due him, and the offer of a less sum, no matter how inconspicuous, will not support the plea of tender.
    2. A tender in discharge of a mortgage debt, whether made before or after foreclosure brought, must be paid into court after the commencement of suit, the practice being the same in cases in equity as in those at law.
    3. Searches are usually made before the filing of a bill of foreclosure, so that the mortgagee may ascertain who are the junior encumbrancers, if any, in order that they may be made parties and their liens subjected to the priority of the mortgage about to be foreclosed. Therefore, the complainant is entitled to the taxation of search fees in a hill of costs taxed as on dismissal for the purpose of ascertaining the amount of costs due him in the foreclosure suit, in order to enable the defendant to make tender of the proper amount; and if a defendant assumes to order the. complainant’s costs taxed for him, for the purpose mentioned, he should notify the complainant to file his searches, if any were made for the purpose of the foreclosure, so that the clerk may include a proper fee therefor in the taxed bill of costs.
    On application for retaxation of costs, &c.

      Mr. William F. Reibel, for the complainants.

      Mr. John J. Griffin, for the defendants.
   Walker, Chancellor.

A bill to foreclose was filed in the above-stated cause, and the defendants in an endeavor to avoid the payment of further interest and costs, requested the clerk to tax complainants’ costs as on dismissal, which he did, and they then tendered the amount of principal, interest and costs, as taxed, to the complainants, but they rejected the tender upon the ground that the bill of costs did not include taxation o£ search fees; and they now .move to retax the bill.

Upon the foreclosure of a mortgage the complainant is, of course, entitled to recover his costs along with the principal of the mortgage and interest to the day of the sale.

Searches are necessary for the proper foreclosure of mortgages, and, after decree, there is no trouble about their taxation, because, under the rule, the abstract has to be filed, and the searches should be reported on by the master.

It has been the practice of the clerk’s office not to tax searches which were not filed and approved by the master without a special order of the court therefor.

Now, searches are not made at the time of the reference to a master, but before the filing of the bill, so that the mortgagee may ascertain who are the junior encumbrancers, if any, in order that they may be made parties and their liens subjected to the priority of the mortgage about to be foreclosed. Only the holders of liens unrecorded at the time of filing the bill are bound by the proceedings in a foreclosure suit, the same as if they had been made parties. Chancery act, Comp. Stat. p. 432 § 58.

Rule 113a of this court, which concerns search fees, provides, inter alia, as follows:

“The clerk shall not tax fees for searches as a part of the taxable costs in favor of the complainant in any * * * foreclosure suit, unless, prior to the taxation of such costs, there be filed with the papers in the cause an abstract of the searches made for the purposes of said action, which, in foreclosure cases, shall set forth the date of the mortgage, and which shall shortly indicate precisely what searches were made and for what purpose made, together with an affidavit of the complainant or his solicitor, which shall set forth an itemized statement of the fees and charges for which taxation is asked, and which shall include only such fees and charges as were actually and necessarily paid or incurred for the purpose of the action. There shall also be filed a certificate or report of the reference master, that he has examined the abstract of search and statement of fees and charges claimed, and that in his opinion such search was necessary for the proper purposes of the suit.”

As already remarked, searches are not -made after, but before, bill filed, and they are generally withheld from the files until after the master reports. As to the taxation of fees for searches, the rule, it will be observed, provides that they shall not be taxed in favor of complainant in a foreclosure suit, unless, prior to the taxation, an abstract of the searches shall be filed with the papers in the cause. Therefore, had the complainants’ solicitor filed the searches prior to the taxation under review — which taxation was ordered by the defendants for the complainants for the purpose of ascertaining the amount due, so that defendants could make a tender — if the abstract, as to form, complied with the requirements of the rule, proper fees for the searches should have been taxed; and, therefore, it follows, m my opinion, that when the defendants assumed to order these costs taxed as on dismissal, they were obliged to notify the complainants to file their searches, if any they had, so 'that the costs could have been correctly taxed and the true amount due from defendants to complainants could have been ascertained and tendered. A report of a master as to searches can only be had if the cause proceeds to a reference.

A tender is good only if the correct amount is offered to be paid, including all costs due, for the complainant is entitled to exact the full amount due him, and the offer of a less sum, no matter how inconspicuous, will not support the plea of tender. Wright v. Behrens, 39 N. J. Law 413, 416. And tender in discharge of a mortgage debt, whether made before or after foreclosure brought, must be paid into court after the commencement of suit, the practice being the same in cases of equity as in those at law. Shields v. Lozear, 22 N. J. Eq. 447, 452. Payment into court was not made in this case, and, for that reason also, the tender was not good. But no point is made of that by counsel for complainants, and, consequently, I have decided the only question raised, as it is important in the matter of taxation of costs in certain instances.

The amount to which complainants would be entitled to be allowed for the search at the rate provided by statute for official searches, is $19.84, as shown by an itemized statement of the fees and charges for which taxation is asked, verified by affidavit of complainants’ solicitor. The search, however, is not an official one, but was made by the solicitor, and I think an allowance of $15 ample for the work involved 'in making the search. The complainants are entitled to have this amount allowed in their bill of costs, and the bill will be retaxed in order to make the inclusion.

The defendants, upon the theory that complainants were not entitled to an allowance for search fees in their taxed costs, and that therefore they had made a good and sufficient tender, have applied for an order extending the time in which to file an answer and cross-bill setting up the tender and praying for a cancellation of the mortgage.

As the complainants are entitled to a retaxation of the costs, it follows that the defendants, who did not make a good and sufficient tender, are not entitled to the relief they seek. The result is that the complainants’ motion shall prevail and the defendants’ be overruled.

As the result reached establishes a practice which has not been settled, I will not award costs to either party as against the other on these motions.


text:
    In the matter of Simon Hahn, a solicitor of the court of chancery of New Jersey.
    [Decided July 14th, 1915.]
    1. P., alleging that his wife had committed adultery with IC, retained H. as solicitor to bring suit for divorce against her. H., instead of bringing such suit, sought the paramour IC, and informed him that his instructions were to demand $25,000 to save him from the exposure which would follow if suit were brought, offering to refrain from bringing suit if the demand were met. IC yielded and gave H. the $25,000. H. informed his client that he had settled the matter with IC, but did not tell him the amount he had received, and gave him $2,000, saying that it was exclusive of his fee and that of the detectives. H. gave the firm of detectives, who had obtained evidence, $9,000, keeping the balance of $14,000 for himself. One year afterward P. and the detectives discovered the amount received by I-I. for P., and, upon P.’s demand for more money, H. gave him an additional $2,500, making $4,500 in all, and gave the detectives, upon their demand for more, an additional $1,250, making the solicitor's share of the proceeds forty-one per cent., the detectives’ forty-one per cent., and the client’s, whose cause of action they exploited for their own benefit, only eighteen per cent. — Held, that this conduct on the part of H., the solicitor, toward his client, was unconscionable, oppressive and fraudulent, and that, therefore, he should be debarred from practicing as a solicitor.
    2. When a contract between solicitor and client shows that the compensation therein fixed is so unreasonably excessive as to amount to extortion or to evince a purpose on the part of the solicitor to obtain an undue advantage of his client, the latter could not have had in view the real nature and effect of the alleged bargain.
    3. When a’ solicitor retains for himself, and permits and aids detectives in diverting, a grossly disproportionate amount of a client’s recovery, in the name of compensation for services of himself and the detectives, which services were meagre in point of time and entirely non-expert, the compensation feature of the transaction is only a name.
    4. Lawyers’ services are not based upon, nor are they restricted to, mere time service. They are entitled to fees which will adequately compensate them for their services, especially w'hen those services are valuable to their clients, and when recoveries are made, their fees may be,, and properly are, somewhat apportioned to the avails gotten for their clients. But a solicitor who performs one day’s work for a client, not involving professional skill or ability, and recovers $25,000 for him upon his cause of action, and takes one-half of it under the guise of compensation, is guilty of unprofessional conduct amounting to fraud upon his client.
    5. If it were known by solicitor and client that $25,000 could be recovered by the solicitor for the client for services not requiring any particular degree of skill or ability, or any comparatively appreciable time service, and they entered into a contract to divide that equally between them, then, upon the client’s repudiation of that contract, the court would doubtless set it aside and compel counsel to restore to his client all over what would be considered fair and reasonable compensation, upon the principle that the excess was a gift without any consideration to support it, and because the contract was unconscionable, oppressive and fraudulent on the part of the solicitor.
    6. If a contract be made between solicitor and client for an equal division of a recovery upon the client’s claim for damages for criminal conversation where the amount of recovery is entirely problematical, and upon a cause of action, which, it would seem at best, would not bring for the client more than a small amount, if anything, but which turns out to yield $25,000, -because the client’s adversary is oppressed by the former’s solicitor with threats of exposure (which would have been incidental to suit brought), then it becomes the duty of that solicitor himself to renounce the contract and turn over to his client all but reasonable compensation for his services.
    7. The making of the sort of contract above mentioned may be cause for disciplining a solicitor, although, in a crim. oon. case, he would act in the capacity of an attorney-at-law.
    8. A solicitor is guilty of unprofessional conduct in procuring from a client's wife, in the presence of her husband, a sworn confession of adultery, as the confession would not be received in evidence in a divorce. case nor in a suit for damages for alienation of the wife’s affections — especially when the confession is obtained and used for a sinister purpose.
    9. When a solicitor in chancery is called upon to respond to a rule to show cause why he should not be disbarred or otherwise disciplined for unprofessional conduct as a solicitor, and, upon the hearing, it appears that an offence meriting punishment has been committed by the solicitor, not, however, in Ms capacity as such, but as an attorney of the supreme court, the court of chancery nevertheless will properly discipline the derelict solicitor who has committed the offence, because courts, in disciplining lawyers, are not restricted to offences committed in the. particular courts in which the disciplinary proceedings are instituted.
    10. Generally it may be said that courts will discipline lawyers for offences involving moral turpitude.
    11. A client’s adversary has rights which the client’s solicitor is bound to regard. One is to deliberate as to whether or not he will pay an enormous demand made upon Mm or resist the collection of it. If he asks for time to think it over, but is told that the money has to be paid immediately or papers will be filed and he will be exposed, the solicitor is guilty of unprofessional conduct.
    On order to show cause why the respondent should not be disbarred or otherwise disciplined and punished,

      Mr. Halsey M. Barrett, for the rule.

      Messrs. McCarter & English, for the respondent.
   Walker, Chancellor.

Upon reading and filing affidavits made by Charles M. Kase, Albert C. Fletcher, Charles S. Peaker and Bertha Peaker, his wife, which charged Simon Hahn with malpractice as a solicitor in chancery, an order was made upon him to show cause why he should not be adjudged guilty and thereupon be debarred from further practice as a solicitor or counselor of this court, or be suspended from practice as a solicitor or counselor for such period as the chancellor should order, or be otherwise disciplined and punished as might be deemed equitable and just. v The gravamen of the charge against Hahn is that' he, having been retained by Peaker as his solicitor to prosecute in his behalf an action for divorce against his wife, Bertha Peaker, upon the ground of adultery alleged to have been committed by her with Charles M. Kase, did thereafter and on or about December 30th, 1913, demand, extort and receive from Ease the sum of $25,-000 as the consideration for agreeing to refrain from prosecuting such action for divorce, and did afterwards misrepresent to, and deceive, Peaker concerning the amount of money had and received by him, Hahn, from Ease, in that Hahn represented and stated to Peaker that he received from Kase, for the consideration mentioned, the sum of $6,000, and did thereupon pay and deliver to Peaker the sum of $2,000, which he had received from Kase, with the additional representation that he, Hahn, had paid, or intended to pay, to the Gregory Detective Agency, composed of John and Francis Gregory, the sum of $2,000, being another third of the sum collected, and that he intended to retain for his own use, and as compensation for his services in the matter, the remaining one-third, namely, $2,000; whereas, in truth, Hahn retained for himself and converted to his own use the difference between $2,000, which he paid to Peaker, and such sum .as he paid to the Gregory Detective Agency (the exact amount being unknown), the balance of the $25,000 so paid to him (Hahn) by Kase as the consideration for agreeing to refrain from prosecuting the action for divorce, to wit, upwards of $18,000, without the knowledge or consent of Peaker.

Hahn’s defence was, shortly, this: That he was retained by Peaker to commence an action against Ease for the alienation of his wife’s affections, who, Peaker, suggested a suit for $50,-000; that he sent for Ease, who came to his office, and, upon being told of Peaker’s instructions, he, Ease, offered $25,000; that he, Hahn, sent for Peaker, who came down to his office and signed a release to Kase, expressed to be for *one dollar and other valuable consideration, upon delivery of which to Ease, he, Hahn, collected from him $25,000 — $20,000 in bills and $5,000 in a check; that he, Hahn, returned to his office and laid down the bills and check on his desk in the presence of Peaker and the two Gregorys, father and son, the detectives who had obtained evidence for Peaker, and said he would draw Peaker a check for $12,500 and retain the balance, $12,500, for his services according to their agreement; that the elder Gregory asked Peaker where they came in, and Peaker asked Hahn if he could not throw off part of his fee as he had to pay the Gregorys; that he, Hahn, finally consented to reduce his fee to $10,250, and was about to count out $14,750 to Peaker, when Peaker said that he, Hahn, should pay the Gregorys $9,000 then, which Hahn did, and gave it to the elder Gregory, who took and counted it and handed $4,500 to his son; that thereupon the Gregorys said they ought to get as much as he, Hahn, and that Peaker said they ought to be satisfied with $9,000; that no agreement was reached and the parties were to settle the next day, and Peaker asked Hahn to give him $2,000 then, and said there would be $3,750 coming to him; that Peaker appeared the next morning and said he had not settled the matter with the Gregorys and wanted him, Hahn, to keep the $3,750 for him until he called for it; that he, Hahn, heard nothing more about the matter until the middle of December, 1914, when the younger Gregory came to his office and accused him of having gotten $60,000 out of the matter; that Peaker visited his office January 4th, 1914, and said he had come to get his money, that he had agreed with the Gregorys, and was going to give them $1,250 out of the $3,750, and wanted Hahn to give him a check for $2,500 and send them a check for $1,250; that an appointment was made for two o’clock and that Peaker and Francis Gregory came in, and he, Hahn,, gave Peaker his check for $2,500, and the next day Francis came in and said they would take $1,250 (having left his office dissatisfied the day before), and reluctantly signed a receipt for $10,250, which the agency had received out of the proceeds of the settlement; that no divorce proceedings were ever mentioned.

There are three disputed questions of fact to be considered— (1) TVas Hahn retained to prosecute a suit for divorce or for alienation of affections? (2) Did he agree to divide equally with Peaker any sum he might collect from Ease? (3) Did Hahn disclose, in December, 1913, to Peaker and the Gregorys the amount which he collected from Ease ?

1. TVas the suit to have been one for divorce or for alienation of affections: Charles S. Peaker, who was a cab driver, testified that he visited Hahn’s office with Francis Gregory, and that he, Peaker, made an appointment with Halm for a later hour that day, when he again went to Hahn’s office and informed him, Hahn, of the facts of his case and asked Hahn if the evidence was strong enough for a divorce, and if so, to go ahead with the case; that Hahn said he would draw the papers, and when he got them prepared would send for Peaker; that later, by arrangement, Peaker brought his wife to Hahn’s office and Hahn informed her that her husband had brought him evidence to secure a divorce, and she said she was willing to make an affidavit of the story, which Hahn wrote down and read to her and she signed and swore to it.

Bertha Peaker, who was a domestic servant, and who was living apart from her husband, testified that she met him pursuant to appointment and went with him to Hahn’s office, and that when they went in Hahn said something about the divorce, and he then drew the affidavit about her relations with Ease, which she signed and to which she swore.

Charles M. Kase testified that Hahn sent for him and he went to his office; that then and there Hahn told him that he would probably get into a great deal of trouble if he did not meet the wants of a man who was going to bring a suit for adultery; that he took out a bunch of papers and laying them down said that if the demands were not met he, Hahn, would have to go to Trenton that night and start divorce proceedings; that he, Kase, asked what was the sum demanded, and Hahn said $25,000, and that Peaker would not take a cent less; that it had to be paid that afternoon or night or the papers would be sent to Trenton and they would get there early the next morning.

Albert C. Fletcher, Kase’s secretary, testified that Hahn came to Kase’s office on December 30th, 1913, and requested Kase to settle the Peaker matter for $25,000, saying refusal would mean Kase’s everlasting disgrace, and he heard him, Hahn, mention divorce proceedings.

Thus it appears that four witnesses, Peaker and his wife, Fletcher and Kase, testified that divorce proceedings-were the subject of Peaker’s intentions, while Hahn alone denies it. Whether a divorce or a crim. con. proceeding was contemplated can make no difference as to the receipt and disbursal of the money by Hahn, except as the question bears upon the jurisdiction of the court of chancery in this proceeding. That question will be considered and disposed of hereafter.

2. As to any agreement for Hahn’s compensation: Peaker says that on the afternoon of December 29th or 30th, 1913 (it was the latter date), Hahn sent for him and said he had settled the case out of court and that “here is $2,000 for you and I have got my fee, too. Here is $2,000 for you, exclusive of my fee and the detectives’ fee.” Peaker said that he did not ask him, nor did he tell him, how much he proposed to keep for himself or to pay tire Gregorys; that a little over a year afterwards (January 5th, 1915) he, Peaker, went again to Hahn’s office and said that he had heard some talk about the case, and said he thought Hahn had “double-crossed” him; that Hahn had received a large sum of money and did not tell him, and that he did not know what Hahn got nor what he paid the Gregorys, and if Hahn received $25,000, which he heard he had, then, he, Peaker, said he thought he was entitled to more money, to which Hahn replied that he was right and that he would give him more money, which he did, and gave him a check for $2,500.

Hahn’s story is that his agreement with Peaker was to divide equally fifty per cent, to each, as already stated.

There is indirect corroboration of Peaker upon the subject of Hahn’s compensation in the testimony of Francis Gregory, who said, on his direct examination, that they (the Gregorys) never sent a bill for services and never demanded from Hahn any particular stun, and did not think they had any agreement; that Hahn made the payments voluntarily. When recalled, however, he said he wanted to correct a mistake in his former testimony, and then testified that there was an agreement to split the money into thirds, one-third to Hahn, one for Peaker and one-for the Gregorys. The testimony is not very clear’ or satisfactory on this point, but if there were an agreement to divide the proceeds into thirds, then Hahn’s testimony, that it was to be divided into halves, and that the Gregorys were to be paid by Peaker out of his half, is untrue. As a matter of fact, when the whole sum was at last distributed, Peaker, whose cause of, action Hahn and the Gregorys exploited almost exclusively for their own benefit, received but $4,500, while Hahn got $10,250, and the Gregorys a like sum of $10,250. In other words, Peaker’s share of this .nefarious business was eighteen per cent., while Hahn and the Gregorys (together) each got forty-one per cent., or, in other words, the solicitor’s and detectives’ share, together, was eighty-two per cent., while Peaker’s was only eighteen per cent.

3. Did Hahn, in December, 1913, disclose to Peaker and the Gregorys the amount he received from Kase? Peaker says that when sent for by Hahn, after lie had collected from Kase, that he, Hahn, gave him $2,000 and informed fiim that that was exclusive of his fee and the detectives’, without being asked by Peaker how much he had collected and without informing him, and that he, Peaker, had no idea what Hahn and the Gregorys got.

John Gregory testified that Hahn sent for him December 30th, 1913, and he went to his. office. Francis Gregory was there. He, John, says he was not sure whether Hahn gave the money to Francis and Francis gave it to him or whether Hahn gave it to him directly, hut he got $4,500 in bills, and Hahn said, “How is that, Chief, how is that?” and Gregory replied that it looked pretty good to him, and put it in his pocket; that he did not know how much Hahn had gotten or what he was going to keep, but said there was a kind of an agreement about three one-thirds —three parts; his agency was to get one, Hahn, he supposed, another, and he did not know about Peaker, but supposed he got the other; that at the time he, John Gregory, got his $-1,500, Francis was given $1,500, too. Recalled, John Gregory testified that when he got to Hahn’s office on December 30th, 1913, his son Francis and Judge Hahn were there; Peaker was not, he came in afterwards; that he, John, was present when Peaker was paid $2,000; that it is not. true that Hahn gave Peaker $11,-000 in bills or that Peaker after receiving them handed $9,000 in bills over to Francis, who received it in his presence from Hahn; that Peaker, he thought, was not present when he and his son received the $9,000 in bills.

Francis Gregory corroborates his father, and, on his recall, testified that on December 30th, 1913, he saw Hahn and Kase at the bank and saw money handed to Hahn by the teller; that he followed him back to his office and that Hahn sent for the elder Gregory and Peaker and informed him, Francis, before they got there, that he got $20,000; that Hahn did not in his presence or in the presence of his father and of Peaker, lay out $20,000 in bills and a check for $5,000; that there was never any discussion as 'to how much the Gregorys were to receive; that Hahn did not say that he was to receive one-half and was about to give Peaker a check for $12,500; that nothing was said about a check at all; that he saw Hahn give Peaker $2,000; that Peaker was not present when the Gregorys got the $9,000.

Peaker was not asked by either of the examining counsel as to who was present when he got the $2,000 from Hahn.

Now, if Peaker tells'the truth he had no agreement whatever as to the amount of Hahn’s fee. Hahn, who says that his fee was agreed between him and Peaker to be fifty per cent., stands alone in this assertion, and if the other three witnesses are to be believed either there was no agreement as to any amount, or it may be that it was to be thirds instead of halves.

The methods by which this collection was made from Kase is significant upon the bona fides, or rather lack of it, of this whole transaction. Succinctly stated this is what happened: On December 30th, 1913, the day after Hahn secured Bertha Peaker’s affidavit admitting her meretricious relations with Kase, Hahn called Kase on the telephone and requested him to come to his, Hahn’s, office. This Kase did, and Hahn informed him of the matter in hand and demanded $25,000 to settle, exposure being the penalty for refusal. Kase asked a little time to think over and was permitted to go back to his office for the purpose, where Hahn soon followed him. Kase said he had concluded to meet the demand, but thought it doubtful whether they could get any money at that time of the afternoon, the banks being all closed. Hahn told him to draw his check and he would go with him and get the money. A check for $20,000 on the Fidelity Trust Company, and another for $5,000 on the Union Bank, were drawn by Kase to the order of cash. The $20,000. one was endorsed by Kase and the $5,000 by Hahn. They went to the Fidelity Trust Company’s banking house and there the teller handed $20,000 in bills to Hahn in payment of the larger check, in the presence of Kase. It was conceded to be impossible to get any money from the Union Bank that afternoon, and Hahn collected that check himself the next day.

Hahn, claiming to be prosecuting an honest claim for damages, having in his possession checks for $25,000, given by a responsible man to whom he had given a release from his client, made the unusual and extraordinary demand that the victim accompany him to a trust company upon which the check for $20,000 was drawn, and which, because it was a trust company as well as a bank, kept later hours than an ordinary banking institution, and induced them to do the unusual thing of paying $20,000 in cash on a check after banking hours. Of course they would do this only for a good customer and responsible man. This gives evidence of the desperation with which Hahn pursued Ease after he found him weak enough to yield to the unconscionable and outrageous demand made upon him, more in Peaker’s name than on his behalf. I call the demand unconscionable and outrageous because only a small recovery, if any, could have been obtained for Peaker from Ease, in my judgment, if a suit for the alienation of Peaker’s wife had béen brought, for reasons which will be hereinafter stated.

To my mine! the testimony shows that Peaker sought Hahn to bring a divorce proceeding for him against his wife; that Hahn considered Peaker a man who would be more gratified by a sum of money than a decree of divorce, and, knowing Kase to be a rich man, and probably a weak one also, he bethought him he would endeavor to frighten Kase into making a settlement, and was probably as much surprised as gratified when Kase so readily agreed to the payment of such an exorbitant sum as $25,000 to save himself from exposure. Further, that there was no agreement whatever between Hahn and Peaker . as to a division of the money from Kase, and if this be correct, then, of course, there was no agreement between them as to fees, but Hahn gave Peaker $2,000, a sum which he thought would more than amply gratify him and preclude any suspicion coming into his mind about the honesty of the transaction, for Peaker could have had no idea that Kase had paid $25,000 to save himself from being exposed in his meretricious relations with his, Peak-er’s, wife.

Perhaps I ought to advert to a feature of the testimony which was made much of on the argument by counsel representing the respondent. Peaker, in his preliminary affidavit in this matter, obtained by Mr. Barrett, who was assigned by Vice-Chancellor Howell to investigate this matter when rumors of it reached him, swore as follows:

“On December 30th, 1913, I was at the office of the Gregory Detective Agency, No. 828 Broad street, Newark, N. J. Hahn called up there on the telephone and said he wanted to see me. Gregory told him I was there and that I would go down to Hahn’s office at once. I went. I think this was about five o’clock in the afternoon. Hahn told me that he had seen Ivase and that Kase had paid him $6,000.”

On the witness-stand before me Peaker testified, as already stated, that when Hahn sent for him and gave him the $2,000 he did not tell him how much he had recovered from Kase. He was called on to explain the discrepancy between his affidavit and his examination in court and made the following answers to questions by Mr. Barrett:

“A. Now, your Honor, with all due respect to you [Mr. Barrett], I will explain that to you; as I said, with all due respect to you, I did up at the office when you [Mr. Barrett] asked me, you asked me when Hahn gave me $2,000 if he told me he had received $6,000, and I said, ‘No, sir, he did not tell me what he had receivedthen you said, ‘Well, being he had given you $2,000, did you suppose ho had received $6,000?’ I said, ‘I didn’t have any idea at all what he had received;’ you asked me that in your office.
“Q. Well, now then, can you answer the question how you got the impression that Mr. Hahn had received $6,000?
“A. How I got the impression?
“Q. Xes; was it, as you now say, because you understood me-to say that it was six?
“A. That is the idea exactly; I wouldn’t have thought anything about any amount at all, because I didn’t have any idea what he had received.”

It is perfectly obvious that Mr. Barrett, a high-minded and honorable lawyer, would not have written into Peaker’s affidavit the statement that Hahn informed him, Peaker, that he got $6,000 unless he, Mr. Barrett, got the' idea from Peaker, and Peaker at the time he swore to the affidavit must have had a rather vague and indefinite recollection about the particular matter, or passed it by unnoticed, or else sworn falsely. I am convinced it was not the latter. In the first place, he had no object to swear except according to the fact. In the second place, he impressed me as an entirely candid and truthful man. But, even if he swore falsely as to whether Hahn told him what he received from Ease, that does not change the salient facts in the matter at bar. Even assuming that Peaker told an untruth in the affidavit, and invoking against him the doctrine falsus in uno, falsus in omnibus, that cannot operate to annihilate facts otherwise proved. However, as already intimated, I believe that an honest mistake was made in some way between Mr. Barrett and Peaker with reference to this fact in the affidavit, and that in this way the discrepancy in the testimony is to be accounted for. I regard it as an honest mistake.

The question of the legality of the contract for fees, said by Hahn to have been made between himself and Peaker, assuming the transaction to be as Hahn says it was, will now be examined.

In 2 Thornton on Attorneys 745 § 431, it is laid down:

“Where a contract of employment between attorney and client is procured by unfair means, and the compensation therein fixed is so unreasonably excessive as to amount to an extortion, or to evince a purpose on the part of the attorney to obtain an undue advantage of the client, the contract will be deemed to be an unconscionable one, and may be set aside on the client’s application; the attorney being allowed only the reasonable value of the services rendered by him’in good faith. In such eases the burden is on the attorney to show that the contract was free from fraud, undue influence, or exorbitant demand. The court will not, of course, interfere with lawful contracts for compensation in which the charge made is not out of proportion with the services rendered.”

Quite in line with the text of Mr. Thornton is the case of Colgan v. Jones, 44 N. J. Eq. 274, where the court of errors and appeals adopted the conclusions of Williams, advisory master, who said (at p. 276) :

“It seems clear in this case that without attributing any misrepresentation to tire attorney, the parties could not have had in view the real nature and effect of the alleged bargain. The value of the subject-matter could not, from the nature of the case, have been equally or fairly understood by them, nor any approximation of it. It was, in effect, only an arrangement for a contingent fee, which is always under judicial control; for, being made by guesswork, a species of (perhaps innocent) gambling, it would be dangerous to decline such control as a matter of public policy. If, however, these parties can be supposed to have known, with some correctness, the value of the thing they were dealing with, then the inference of fraud on creditors would be irresistible to my mind. A poor laboring man, disabled, more or less, by his injury, knowing that his claim is worth some $4,-000, or thereabouts, gives it all to his lawyer, under the name of compensation, for getting it. Evidently, this is only a name. The affair is a gift of so much as exceeds just compensation; and, if the man is indebted, cannot stand as against his creditor.

“But how can we believe that it was even intended as a mere gift ? It is contrary to human experience that a man so situated should give away a large sum understandingly.”

In Tate v. Field, 60 N. J. Eq. 42, Vice-Chancellor Pitney held:

“Where a bill rendered by an attorney for prosecuting a suit for his client is not only fraudulently untrue as to items Eor services not rendered, but inflated throughout by charges beyond what the services were worth, and, with the retainer paid by his client, amounts to more than the sum recovered of defendant, it is within the rule that if the behavior of the attorney towards his client is dishonest, oppressive or illegal, and shows a fraudulent intent, the court may proceed summarily against him for his misconduct.”

In Morehouse v. Brooklyn Heights Railroad Co., 185 N. Y. 520 (at p. 525), it was held:

“Of late years the subject of attorneys’ fees, and their manner of procuring contracts of retainer, especially in negligence cases, have attracted the attention of both the public and the courts. The charges made in some cases have been exorbitant, if not scandalous, and have tended in a measure to bring the profession into disrepute. It is contended that a claimant who is poor and unable to pay his attorney in cash ought to be permitted to contract to pay a portion of his claim to his attorney, in order to procure his services. The' validity of such contracts is not questioned. It is only where the attorney has taken advantage of the claimant, by reason of his poverty or the surrounding circumstances, to extort an unreasonable proportion of such claim that it is condemned. The federal courts have recently, in two instances, characterized a contract of retainer giving to the attorney fifty per cent, of the recovery as unconscionable. Herman v. Metropolitan Street Railway Co., 121 Fed. Rep. 184.; Muller v. Kelly, 125 Fed. Rep. 213. The appellate division in the first department has also denounced such contracts. The question, however, as to whether such a contract is unconscionable, is one of fact depending upon the character of the claim and the amount of services rendered in prosecuting it to judgment. An agreement to pay an attorney one-half of the recovery, where the action was to recover a penalty of $50, would not by any person be considered to be improper, but if it was for $50,000, it might be considered quite improper. So, that the mere fact that the attorney under the agreement was to receive one-half does. not render it unconscionable, unless it appears from the evidence that it was induced by fraud, or, in view of the nature of the claim, that the compensation provided for was so excessive as to evince a purpose on the part of the attorney to obtain an improper or undue advantage over his client. Matter of Fitzsimon, 174 N. Y. 15.”

In Dorr v. Camden, 55 W. Va. 226 (at p. 234), it was held:

“A contingent fee is only permitted to attorneys as reward for skill and diligence exercised in the prosecution of doubtful and litigated claims, and is not allowed for the rendition of mere minor services which any layman or inexperienced attorney might perform.

“It is the skill, diligence, ability, experience, judicial knowledge and judgment of the attorney that is thereby rewarded, and the performance of duties that require no such qualities is wholly insufficient to sustain such fee, as the true measure of such services can be ascertained on a quantum meruit.

“The evidence of this case clearly shows that the only duty the plaintiff was to perform was to furnish the evidence of himself, Winchester, Butcher and Hutton, and the record and decision in the case of Camden v. Dewing shows the case wholly depended on the evidence of Winchester, Butcher and Hutton; all of whom were under obligation to the defendant as his fully compensated agents, to furnish him their evidence free of charge or compensation of any kind whatsoever.' It is therefore clear from the proofs that the plaintiff did nothing requiring skill, diligence, experience, ability, legal knowledge or judgment, entitling him to a contingent fee for legal services, and, as before seen, the contract, if entered into at all, was coerced from the defendant by the unfair advantage taken of him by his agents, withholding from him information that belonged to him.”

These cases were civil suits between party and party concerning fraudulent and unconscionable contracts negotiated by attorneys with clients, whom they were bound to protect and not to oppress; and if this were such a suit, I'would have no difficulty whatever in reducing the fee of counsel to far less than he gave Peaker, and to award Peaker more than counsel retained for .himself and permitted the detectives to obtain. This matter, however, is disciplinary, looking to the suspension or expulsion from the chancery har of the solicitor who fraudulently and oppressively extorted an unconscionable contract from his client, and, incidentally, permitted his client’s recovery to be extortionately levied on by detectives — assuming the transaction to be as he states. But, as already said above, I am clearly of opinion that no such bargain for fees between the parties was made, and in such a posture the solicitor’s conduct becomes manifoldly more fraudulent, oppressive and unconscionable.

A bare statement of the facts of the case at bar, as to the alleged contract, shows that “the compensation therein fixed is so unreasonably excessive as to amount to extortion, or to evince a purpose on the part of the attorney to obtain an undue advantage of the client” as laid down by Thornton; that “the parties could not have had in view the real nature and effect of the alleged bargain” as in Colgan v. Jones. In that case Advisory Master Williams remarked that a gift of all of his claim, by a poor laboring man disabled by injury, to his lawyer, in the name of compensation for getting it, was only a name; that it was contrary to human experience that a man so situated would understanding give away a large sum. Equally, in this case, it is unbelievable that Peaker could have known or understood it to be possible to obtain $25,000 from a man for committing adultery with his wife, who, by the way, gave herself up to him willingly, and at whose offence he, Peaker, appears to have connived. The comparative enormity of the recovery in this case is what renders the sum taken under the guise of compensation unconscionable, as hinted at in Morehouse v. Brooklyn Heights Railroad Co. Again the meagre and inexpert services performed by Hahn for Peaker, services which any inexperienced attorney might have performed, are “wholly insufficient to sustain such fee” as was said in Dorr v. Camden.

As is well known, exemplary damages are recoverable in crim. con. suits, and yet the conduct of the wife with her paramour may be given in evidence in mitigation' of damages. Foulks v. Archer, 31 N. J. Law 58; Ferguson v. Smethers, 70 Ind. 519. In the latter case the court observed (at p. 520) :

“The. circumstances attending the adultery — as to whether the wife was sought or threw herself in the way of her paramour, and as to whether she was overcome by persuasion, or gave herself away willingly — may be given in evidence as affecting the question of damages.”

It is to be born in mind that Peaker is the man whose wife’s affections were said to have been alienated from him, and for which it is said he was entitled to damages. He wrote his wife a letter dated December 25th, 1913, which was received by her and in pursuance of which she met him and went to Hahn’s office where she made the sworn confession. The letter was offered in evidence and reads as follows:

“Dear Bertba this is certainly A swell Christmas Day but it is just as good to me and I suppose you also if you are over the hot stove which you are I believe. Well Sweet I had A talk with my Friend A Lawyer & he said if you would come down to Newark Monday afternoon he would fix it up for me, but mind you this is to be strictly private only the ones concerned in it must know any thing about it as He would not do this for any body else under any circumstances, so I told him I would guarantee him any thing contracted between you and I as far as we were concerned would be absolutely safe so after I get straight with you I will hike it as soon as I get straight but until you are married again after we are Divorced I want you to keep in touch with me if you feel so disposed for I will never wish you any ill will and hope the same from you so if you can meet me Monday after noon let me know or if not let me know when it will be convenient for you and I will meet you at the Central Depot on Broad st. then there will be no danger of the Boss seeing us together therefore it will not hurt your standing with Him, answer me by Saturday so I can make the appointment with the Lawyer, it will not take us over % hour so you see we can make it short. All at Present I remain the same old Cranky Hubby Charles Peaker with love Happy Christmas & A Merry New Tear get me Steve.”

In this letter Peaker invites his wife to meet him and go to a lawyer’s office and says that until she is married again after they are divorced he wants her to keep in touch with him if she feels so disposed for he will never wish her any ill-will and hopes the same from her. He goes on to say there will be no danger of the “Boss” seeing them together, therefore it will not hurt her own standing with him. This can mean none other than Ease, for Peaker had been told by his wife that she was having relations with Ease, and, in consequence of this information Peaker instructed the Gregorys to shadow her at Kase’s office and get evidence. Here is a plain case of consent by Peaker to his wife’s adultery with EaSe, which, in fact, he proposed to make a cause for divorce, and to remain thereafter on terms of friendship with her. It amounts to giving her to Ease. I think that nominal damages would have been about all that could have been recovered, if any, on Peaker’s alleged cause for action against Ease for alienating his wife’s affections, for if a husband consents to, or connives at, the wrong, he cannot maintain an action for criminal conversation. 21 Cyc. 1627.

It will not be out of place here to inquire as to what services Hahn performed for Peaker. They met by introduction of the younger Gregory one day, and Peaker visited Hahn’s office later and stated the facts of his case to him. It may be assumed that all this took a couple of hours. Next day Peaker visited Hahn’s office with his wife who reiterated the story and signed and swore to a confession which Hahn drew. It may be assumed that this took three hours. That makes five hours, or, say, one-lialf of a day. Hahn’s transaction with Ease was all in the afternoon of December 30th, 1913, which was less than half a day. Later in the evening of that day Hahn sent for Peaker and gave him $2,000, and gave $9,000 to the Gregorys, the latter dole unbeknown to Peaker. All this may have taken a couple of hours. I reject Hahn’s statement to the effect that Peaker appeared at his office the next morning and told him that he had a settlement yet to make with the Gregorys and that he wanted Hahn to keep the rest of the money ($3,150) for him until he called. Peaker and the Gregorys deny this. Thus, practically, it will be seen, that Hahn’s services in this matter occupied about one day’s time.

Of course lawyers’ services are not based upon, nor are they restricted to, mere time service. They are entitled to fees which will adequately compensate them for their services, especially when those services are valuable to their clients, and, when recoveries are made, their fees may be, and properly are, somewhat apportioned to. the avails gotten for their clients. The same amount of time might be devoted to the interests of a client where no money passed, and the charge would be, perhaps, nominal, if the client were of little ability to pay. And, on the contrary, for the same amount of services in time, where the recovery was large, compensation might run into hundreds or even thousands of dollars. Rut a solicitor who performs a day’s work for a client and recovers $25,000 for him upon Ms cause of action, and takes one-half of it under the guise of compensation, is guilty of unprofessional conduct amounting to fraud upon that client. If it were known by solicitor and client that $25,000 could be recovered by the solicitor for the cliént upon services not requiring any particular degree of skill and ability, or any comparatively appreciable time service, and they entered into a contract to divide that equally between them, then, upon the client’s repudiation of that contract the court would, in my opinion, unhesitatingly set it aside and compel counsel to restore to his client all over what the court would consider fair and reasonable compensation, upon the principle that the excess was a gift without any consideration to support it, and because the contract was unconscionable. If, on the other hand, a contract be made between solicitor and client for an equal division of a recovery upon a client’s claim, where the amount of recovery is entirety problematical, and upon, as in this case, a cause of action, which, it would seem at best, could not bring for the claimant more than a small amount, if anything, but which turns out to yield $25,000, because the client’s adversary is oppressed by claimant’s solicitor with threats of exposure (which would have been incidental to suit brought), then, I say, it became the duty of that solicitor himself to have renounced the contract and turned over to his client all but reasonable compensation for' his services.

Advisory Master Williams well said in Colgan v. Jones (at p. 275) :

“The right in action belonged to Colgan, and the judgment was recovered for him and in his name, and became, on its recovery, an asset liable to his creditors.”

This observation has especial appositeness to the case at bar. Here the cause of suit or action was Peaker’s, not Hahn’s, and when the $25,000 was obtained by Hahn it was recovered for Peaker and not for Hahn plus the Gregorys. Yet the conduct of Hahn and the Gregorys would indicate that they regarded and dealt with the cause of action as theirs, or at least that they appropriated it to themselves and made Peaker a mere cat’s-paw in the game of mulcting Ease.

Now, if Hahn’s extortionate charge against his own client is to he reprobated, and indeed it is, what shall I say of his permitting these detectives, the Gregorys, to possess themselves of $10,250. of Peaker’s money for services not requiring any detective skill and which could have been equally well performed by anyone. Francis Gregory, who did the “shadowing,” was informed of the time when Bertha Peaker would visit Ease’s office, and he watched the office and saw her go in and come out five or six times, devoting an hour or so to each occasion. .Besides this, Peaker had several interviews with the agency. By no stretch of the imagination could the Gregorys’ services have consumed more than two days’ time. I understand that detectives charge from five’ to twenty-five dollars a day for their services. Upon the basis of time service the Gregorys would probably have been well paid with $50 and overpaid with $100. And yet, notwithstanding this, Hahn, the solicitor, permits the Gregorys to share equally with him in the “spoils” — for such, I think, the $25,000 may well be called — giving them first $9,000 and then $1,250, when, by the way, they only claimed that there was to be a division into thirds, which would have made their-compensation $8,333.34 instead of $10,250, But, of course, there was no such agreement, for, if there had been, Hahn would not have given the Gregorys $9,000 on the night of the settlement and $1,250 in January, 1915, as “hush money,” for such it was. It was a veritable case of “addition, division and silence,” with silence broken and the usual result — exposure!

The authorities to which I have just referred — Thornton on Attorneys, Colgan v. Jones, Tate v. Fields, Morehouse v. Brooklyn Heights Railroad Co. and Dorr v. Camden — concern causes between parties and solicitors with reference to unconscionable and extortionate contracts between them. But, In the Matter of ——, an attorney, 86 N. Y. 563, the sort of a contract here under discussion was distinctly held to be a cause for disciplining an attorney who was disbarred. Said Chief-Justice Folger (at p. 573) :

“Another matter presented to the general term was this: The appellant procured a pension .for one who had employed him' and received arrears of pension and the monthly allowance for some months. Of the money he received he did not pay over to the pensioner the sum of over $1,200 out of a little over $1,700 received by him. He avers that he agreed with his client that he was to retain all over $8 per month of the moneys that were paid by the government. This was an unconscionable agreement to be made by an attorney with a client. It is worse, when it does not appear that the client was informed or knew how much over $8 per month were the sums the government would pay. White v. Whalen, 3 Lans. 327. We cannot say that the general term erred in deeming this transaction indicative of a depraved professional morality. There may have been good reasons why the United States court held that the facts shown to it did not sustain the indictment on which the appellant was tried. That decision does not soften the effect of those shown to the general term.”

As already intimated, however, the opinion at which I have arrived, and the result of it, is not based upon a contract unconscionable, oppressive and fraudulent, but upon such conduct by a solicitor toward a client, without any contract between them, including, also, the withholding of information from the client as to the amount of money recovered for him.

It will not be out of place to mention the fact that Hahn was guilty of unprofessional conduct in procuring from P eater’s wife her sworn confession of adultery.

In Summebell v. Summerbell, 37 N. J. Eq. 603, coercion was practiced upon a wife by her husband who stood by while she wrote and signed confessions which were witnessed by a woman who attended at the husband’s invitation (at pp. 604, 618). And Gummere, advisory master', in this case held (at p. 617) :

“In conclusion, I am of opinion that the confession in this case was not collusive, but that it was procured by the complainant to be used as evidence of his wife’s adultery, and that it is open to the legal presumption of having been procured by the influence of the complainant exerted over his wife for that purpose, and that for both of these reasons it is insufficient corroborative proof of the fact of adultery.’’ And Mr. Justice Van Syckel, in the same case, speaking for the court of errors and appeals, said (at p. 619) :

“A confession procured under such circumstances cannot be regarded as the free and voluntary declaration of the wife, but must be treated as the product of his restraining influence exerted over her feebler will. It was penned, by the hand of the wife, but is none the less the language and voice of the husband.

“The attestation clause by which the complainant sought to remove the presumption of constraint, which he knew must attach to it, only adds to the suspicion with which it must be received.

“The analogies of the law lead us to discredit and discard all testimony which is marked by this infirmity. A confession procured from an accused through inducements held out to him is utterly rejected as evidence. No responsibility attaches for an act done under duress. Even in certain crimes committed by the wife in presence of her husband, the law does not charge her with the guilt of the offence, but imputes her conduct to his coercion.

“If these ancient principles of the law are wisely founded, what probative force should be given to the wife’s confession of guilt put forth at a time and place appointed by the husband; before a witness summoned by him, attested by a clause drawn by Ms hand, and written and signed in his presence and under his eye, with the purpose of using it against her ?

“In my judgment, self-accusation thus procured is unworthy of credit, and cannot be a safe basis upon which to build up and support a charge of adultery against a wife.”

The situation is not at all changed because Mrs. Peaker said in her sworn confession: “I am making this affidavit of my own free will and without any coercion.”

In the Summerbell Case (at p. 619), the attestation to the confession read: “I have written the within without dictation or control by my husband or any other person, without any promise or threat, and sign in presence of Miss Caroline Forman as witness.” Afterwards the wife signed another confession which commenced: “By this writing I bear witness willingly and without dictation or compulsion, in the hope alone that my husband will pardon my faults,” &c. And Mr. Justice Van Syckel said (at p. 619) :

“The language of this paper, and that in the attestation clause, leave no doubt in my mind that they were drawn by the husband after consultation with counsel, to be used, as they have been used, as a means of proving the wife’s adultery.”

As the confession of Mrs. Peaker would not have been received in evidence in a divorce case (Summerbell v. Summerbell, supra), neither would it have been received in a suit for damages for alienation of the wife’s affections, for the Evidence act provides that nothing contained in it “shall render any husband or wife competent or compellable to give evidence for or against the other in any action for criminal conversation, except to prove the fact of marriage.” Comp. Stat. p. 2222 § 5.

Hahn knew, and even Peaker and his wife are presumed to have known, that this affidavit was valueless as evidence. It would seem, therefore, that it was procured by Hahn to become the engine of oppression against Kase; and it had that effect. The expression in the handwriting of Hahn that the confession of Bertha was made of her own free will and without coercion goes far to throw light upon the character of this transaction and Hahn’s connection with it. Bertha’s declaration as to that is the judicial language of a trained lawyer put into the mouth of a domestic servant. I regard this sworn confession as a flagrant piece of unprofessional conduct on Hahn’s part.

It has already been stated that Hahn’s claim is that he was not retained to prosecute a divorce suit but one for alienation of a wife’s affections. This defence is aimed at the jurisdiction of this court, the contention being that the offence, if any, was committed by Hahn in his capacity as an attorney-at-law and not as a solicitor in chancery. I have already determined, upon the facts, that his retainer was to bring a divorce suit. He successfully turned it into a demand for a money consideration to suppress a divorce suit or to settle a crim. con. accusation. True, Hahn had Peaker sign a release to Kase on the day he got the money, December 30th, 1913. It is filled out in a general release blank, and, after the usual omnibus clause, written in by Hahn, is the following:

“And in particular all claims I have against the said Charles M. Kase on account of his alienating the affections of my wife Bertie Louise Peaker, and his having committed illicit intercourse with her.”

This release is expressed to be made for and in consideration of the sum of “one dollar and other valuable consideration.” This speaks volumes in corroboration of P caller’s claim that he did not know how much money Hahn obtained from Kase. If this were a bona fich transaction, which Hahn says it was, in which Peaker instructed him, according to his own statement, to demand $50,000 damages, then surely, when he, Hahn, at last got down to settling for $25,000 he would have informed Peaker and had the amount written in the release so that Peaker would know that Hahn was telling him the truth and that he was to get no more than the latter sum. True, Hahn testified that Kase asked him to write the consideration as $1. Kase says nothing of the kind, only that he demanded a release. Hahn did not instruct his counsel to cross-examine Peaker on this question, nor did he ask Kase anything about it. This testimony of Halm’s was brought out by a question of mine. Hahn testified that he sent for Peaker and told him that Kase had submitted a proposition to settle for $25,000.’ I then asked Hahn why he did not write the amount in the release, and he said he had spoken to Kase about it and he told him to put in the amount as $1.

It would be absurd to think that Kase had any desire in that regard. He wanted a release for his protection, and that, under the hand and seal of Peaker, being in full for any and all demands to date, would have been equally as good a defense against the claim which was compromised, had it expressed the real or only a nominal consideration.

Again assuming that Hahn’s version of the matter is correct, and that he was retained to prosecute a crim. con. instead of a divorce suit, nevertheless, this court has jurisdiction of his of-fence. It may be that if there were no question but that the claim was one for damages for alienation of affections that the court of chancery would not have commenced this prosecution, but would have brought the matter to the attention of the supreme court, if it were not already aware of the facts. But when a solicitor in chancery is called upon to respond to a rule to show cause why he should not he disbarred or otherwise disciplined for unprofessional conduct as a solicitor, if, upon the hearing it appears that an offence meriting punishment has been committed by the solicitor, not in his capacity as such, but as an attorney of the supreme court, this court, nevertheless, will properly discipline the derelict solicitor who has committed an offence in his capacity as attorney, because courts are not restricted in their power to discipline lawyers only for offences committed in the particular court in which the disciplinary proceedings are instituted.

In State v. McClaugherty, 33 W. Va. 250, it was held:

“That when an attorney commits an act, whether in the discharge of his duties as an attorney or not, showing such want of professional or personal honesty as to render him unworthy of public confidence, it is not only the province, but the duty, of the court, upon proper presentation of the case, to strike his name from the roll of attorneys.''

In re Wilson, 79 Kan. 674, it was held that whenever one who was in fact a lawyer accepted employment to act for some one else in a business transaction, in the course of which he received money belonging to his employer, his wrongful detention of it is a sufficient ground for his disbarment, although he may not have been called upon to give legal advice or to take part in litigation; that “such conduct would justify excluding him from the practice of the law, as it would certainly be a just cause of refusing an application for admission to the bar” — citing In re Smith, 73 Kan. 743. In this case the amount of money received and misappropriated was inconsiderable.

In re O ———, 73 Wis. 602, it was held:

“The misconduct which will warrant the suspension of an attorney is not limited to acts committed strictly in a professional character, but extends to all such misconduct as would have prevented an admission to the bar.

“In proceedings instituted in the court of his residence, such court may disbar or suspend an .attorney for professional misconduct before officers of the United States land office."

The last citations are ample authority as to the power of any court possessing inherent jurisdiction to discipline lawyers such as this court has (In re Raisch, 83 N. J. Eq. 82), for offences committed not in their capacity as officers of the particular court, if, indeed, any authorities were necessary to support so obvious a proposition.

Now, for what causes will courts discipline lawyers? Generally, it may be said that they will be disciplined for offences involving moral turpitude. .

In re Charles A. Thatcher, 80 Ohio St. 492, it was held:

“The real question in cases of this kind is whether under the facts admitted and proved the respondent appears to be a fit person to be longer allowed the privilege of an attorney; whether he has shown himself, by lack of appreciation of ethical standards and by unworthy conduct, to be no longer worthy of being recognized as an officer of the courts.

In order to justify a court in disbarring an attorney, it is not necessary that his offence should constitute a contempt or a crime; or that he should be convicted of the crime or contempt before the disbarment.

While the power of disbarment should be exercised with great caution, yet where the respondent has been found guilty of unprofessional conduct involving moral turpitude and of misconduct affecting his character and standing as an attorney, and especially where he had manifested no signs of regret and retracted nothing, the courts will not hesitate through sympathy for the individual, to protect themselves from scandal and- contempt and the public from prejudice, by striking such person from the roll of attorneys.”

As I said In re Rosenkrans, 94 Atl. Rep. 42 (at p. 45) :

“The supreme court (In re McDermit, 63 N. J. Law 476), reprobates the breach of that highest trust and confidence which obtains between counsel and client, under which a duty to observe the strictest integrity in his dealings with a client is enjoined, and disbarred a lawyer who had been unfaithful to the instructions of his clients, obtaining from them money for which he failed and neglected to render any adequate service, and retained for his own use money which he had received from them for another purpose.”

Our supreme court (In re Cahill, 66 N. J. Law 527) held that disbarment is justified for “such intentional fraud upon the court or a client as shows evidence of moral turpitude.”

In People v. Salomon, 184 Ill. 490, the court quotes from Sharswood’s Essay on Professional Ethics, as follows:

“There is no class of men among whom moral delinquency is more marked and disgraceful than among lawyers. Among merchants, so many honest men became involved through misfortune that the rogue may hope to take shelter in the crowd and be screened from observation. Not so the lawyer. If he continues to seek business, he must find his employment in lower and still lower grades, and will soon come to verify and illustrate the remark of Lord Bolingbroke that, ‘the profession of the law, in its nature the noblest and most beneficial to mankind, is in its abuse and abasement the most sordid and pernicious.’ ”

Still another matter — one which has been hinted at but not descanted upon — is Hahn’s oppressive conduct toward Kase. True, Kase was not Hahn’s client, but his client’s adversary. Nevertheless, he had rights which Hahn was bound to regard. One was to deliberate as to whether or not he would pay the enormous demand made upon him or resist the collection of it. He asked for time to think it over but was told that the money had to be paid that afternoon or night or the papers would be sent to Trenton and get there early the next morning, when he would be exposed.

In Thornton on Attorneys, § 295, it is laid down:

“An attorney’s liability does not end with being answerable to his client. He is also liable to third persons who have suffered injury or loss in consequence of fraudulent or tortious conduct on his part.”

In Schalk v. Kingsley, 42 N. J. Law 32, it was held:

“While an attorney-at-law acts merely in the character of attorney, making use of the process of the law to enforce his client’s demand, however groundless and vexatious it may be, he is not liable to suit. But when he steps beyond that, 'and actively aids his client in the execution of his purpose, he is not shielded from responsibility.”

In the Matter of Hutson, an attorney, 127 N.Y. App. Div. 492, it was held:

“It is improper for an attorney-at-law to send communications to persons against whom lie has claims to collect in such a form as to lead to the impression that an action had been commenced or that legal proceedings are pending to collect the claim. Such methods are strongly disapproved and require discipline, whether adopted by an attorney, or, under his name, by a collecting agency that he authorizes to use his name.”

Hahn, as already observed, had no instructions from Peaker to collect $25,000 to settle the divorce suit or a crim. con. action; his instructions were to bring a proceeding for divorce; but, even if his instructions were to get money for the settlement of the cause of action, whichever it was to be, Hahn had no right by threats óf exposure to extort $25,000 from Kase in Peaker’s name. If an attorney who writes to a third person, in an endeavor to collect a claim from him, that he had brought suit for his client, when in fact he had not, may be disciplined, as we have seen, how much more reprehensible and deserving of discipline was Hahn’s conduct in demanding that Kase raise an enormous sum of money after banking hours to prevent the immediate commencement of a divorce suit in which he had drawn no papers, and when, as we have seen, he went to the bank with Kase and insisted that the money be drawn and turned over to him, which was done. This course, it seems clear, was taken by Hahn because lie knew that if the matter was allowed to rest over night and Kase took counsel there would be small likelihood, indeed, of his (Hahn’s) scheme succeeding.

Upon this whole matter I am clearly of opinion that Hahn has shown such a want of professional and personal honesty as to render him unworthy of the confidence of the court or the public, and he should, therefore, be disbarred; and his guilt is heightened by his bold defence of his indefensible conduct. If the court were to put the seal of its approval upon this nefarious transaction, and let this solicitor go acquit, then the public— the third party to this proceeding, whom the court is bound to protect — might well despair of protection from the fraud of unconscionable and designing lawyers.

It is, of course, with great reluctance that I have come to this conclusion. The solicitor is a prominent practitioner of the law and lias been a judge and a legislator. These things, however, may not deter me from the performance of a solemn duty. I have studied the case deeply, both on the facts and the law, and, from whatever angle I have viewed it, the guilt of the accused was all apparent.

Let an order be entered debarring the respondent from further practicing as a solicitor or counselor of the court of chancery.


text:
    Claude H. Palmer v. Augusta Palmer.
    [Decided August 19th, 1915.]
    1. The power of the chancellor, as parens patriae, to control the custody of an infant, is sometimes invoked by the issuing of a writ of habeas corpus as the means of bringing the parties before him, and the proceeding is one in the court of chancery.
    2. The writ of ne exeat is in the nature of equitable bail, and ordinarily issues only upon an equitable claim of a pecuniary nature in an amount certain, or to secure the payment of alimony to a wife.
    3. A ne exeat will issue to secure the enforcement of a marital duty other than the pecuniary demand for alimony, and the issuance of the writ in matrimonial causes is not restricted to securing the payment of alimony alone.
    4. Kemble: A ne exeat will issue from the necessity of a given .case to prevent the failure of justice.
    5. A ne exeat may be issued in aid of any other chancery process, including habeas corpus whereon an infant is brought into court by one parent at the suit of the other, to keep the parent having the custody of the child within this state to answer the exigencies of an order for access to the minor by the other parent.
    6. The court of chancery will make a precedent to fit a ease, novel in incident, which comes within some head of equity jurisprudence.
    On application for a ne exeat in aid of a habeas corpus.

      Messrs. Collins & Corbin, for the petitioner.
   Walker, Chancellor.

A writ of hateas corpus having issued out o£ this court directed to the defendant, Augusta Palmer, commanding her to have the body of Virginia Angelina D. Palmer, the infant child of herself and the petitioner, before this court to submit to and leceive whatever the chancellor should consider in that behalf, such proceedings were had in the cause that it was ordered, adjudged and decreed that until the further order of the court the custody of the minor child be awarded to the defendant, and that the petitioner have access to such child at the residence of the father of the defendant on certain days and times therein specified. The defendant thereafter disobeyed the decree by refusing access by the petitioner to his infant daughter, and she subsequently left the State of New Jersey with the child. After-wards she returned to this state with the child and located at her parent’s home. These facts being made to appear by affidavit, the petitioner applied for a writ of ne exeat against the defendant until she should purge herself of the contempt alleged against her for refusing the petitioner access to their child and should fully respond to any order this court might malee touching the custody of the infant. And the question is, shall the writ of ne exeat be issued?

The power of the chancellor, as parens patriae, to control the custody of an infant, is sometimes invoked by the issuing of a writ of habeas corpus as the means of bringing the parties before him. Buckley v. Perrine, 54 N. J. Eq. 285, 292. And this proceeding is one in the court of chancery. S. C. on appeal, 55 N. J. Eq. 514, 516. The case at bar is such a proceeding.

The writ of ne exeat is in the nature of equitable bail, and ordinarily issues only upon an equitable claim of a pecuniary nature in an amount certain, or to secure the payment of alimony to a wife.

Whether Chancellor Williamson, in Yule v. Yule, 10 N. J. Eq. 138, when he said (at p. 141) that in a case between husband and wife the duty should be certain, intended to intimate that ne ex.eal would issue to secure the enforcement of a marital duty other than the pecuniary demand for alimony, which (alimony) was the question at issue in that case, 1 cannot say; but I think the use of the writ in matrimonial causes is not restricted to securing the payment of alimony alone.

In Porter v. Spencer, 2 Johns. Ch. 169, a matter of account in the New York court of chancery, where the defendant had been sued at law and given hail and was about to remove out of that state with his bail, who had sold all his property, Chancellor Kent somewhat hesitatingly issued a ne exeat from the necessity of the case and to prevent a failure of justice.

A ne exeat may be issued in aid of an injunction. Hays v. Willio, 11 Abb. Pr. (N. S.) 167 (reversed on other grounds, 4 Daly 259). And a ne exeat and an injunction may be issued together. Bryson v. Petty, 1 Bland. (Md.) 177 (note at p. 182). This doctrine was recognized in Williams v. Williams, 3 N. J. Eq. 130, where an injunction was issued but a ne exeat was denied.

If a ne exeat may issue in aid of an injunction, it may, on principle, issue in aid of any other chancery process. It was issued in aid of a commission to inquire into drunkenness— In re J. Watts Kearney, Jr. (docket 21, page 476) — where, in affidavits annexed to the petition for the commission, it appeared that the subject of the proceeding intended quickly to depart from tins state.

After Kearney had been adjudged an habitual drunkard by the court of chancery, and being in the county jail upon a writ of ne exeat, awaiting the appointment of a guardian by the orphans court of the county, a writ of habeas corpus was allowed by Mr. Justice Lippincott of the supreme court, who held— In re J. Watts Kearney, Jr., 21 N. J. L. J. 25 (at p. 26), that “the court of chancery has jurisdiction over the person and property of the petitioner as an habitual drunkard, and can keep him within its jurisdiction by the writ of ne exeat. The writ is regular and proper on its face. The statute confers express jurisdiction, and the power would be useless unless control over the person could be exercised. The court of chancery interpreted this statute and found power to issue this writ.”

The statute referred to was the act relative to habitual drunkards, conferring jurisdiction upon the court of chancery over the person and property of such” drunkards (Comp. Stat. p. 2797 § 25 et seq.), and not any statute concerning the writ of ne exeat, as we have no such statute. And Mr. Justice Lippincott also very properly held that a supreme court justice would not review the orders and decrees of the court of chancery; that being the province of the court of last resort.

Assuming that there is no precedent for the issuance of a ne exeat to keep a parent within this state to answer the exigencies of an order for access to a minor child by the other parent,. no obstacle to the jurisdiction of this court to order the issuance of the writ is presented, for chancery will make a precedent to fit a case, novel in incident, which comes within some head of equity jurisprudence. Earle v. American Sugar Refining Co., 74 N. J. Eq. 751 (at p. 761), and cases cited.

As in the case In re J. Watts Kearney, supra, this court has jurisdiction over the parties before it in this case and can keep the contumacious defendant within its jurisdiction by a writ of ne exeat, so as to compel obedience to its order for the father’s access to the infant child of the parties.

Let a writ of ne exeat be issued accordingly.


author: Emery, V. C.

text:
    Henrietta Mattson v. James M. Mattson.
    [Decided May 26th. 1915.]
    1. Under court rule 194, providing that where a cause is referred to a vice-chancellor, all proceedings to the final decree shall he had before him, an application to punish a husband for contempt for non-payment of alimony should be made before the vice-chancellor who recommended the decree for divorce and fixed the alimony.

      2. Court rule 205a provides that the vice-chancellor to whom a subsequent application is made, may decline to entertain the proceeding if in his judgment application should be made to the one to whom previous application has been made. In a suit for divorce the vice-chancellor to whom the proceeding was first referred recommended a decree nisi and fixed the allowance of alimony. Thereafter on petition to him to attach the defendant for non-payment of alimony, attachment was denied.— Held, that, as the material question in such proceeding is the contemptuous failure to pay, and the first vice-chancellor had heard evidence thereon, a subsequent application should ordinarily not be heard by another, but should be referred to the original one.
    On application to attach for contempt.

      Mr. Edward Oakes, for the petitioner.

      Mr. Louis G. Morten, for the respondent.
   Emery, V. C.

This was a contested divorce case in which on the hearing Vice-Chancellor Griffin, to whom the cause had been referred, advised decree nisi for divorce on June 2d, 1913, and also in the same decree fixed permanent alimony at $364 annually, payable in weekly installments of $7 from the date of the decree. No final decree has yet been entered. An application to attach for contempt for non-payment of alimony due on January 12th, 1914, besides costs and counsel fees, $90.56, was made to Vice-Chancellor Griffin. After hearing in open court on the petition the application was denied. A subsequent application to attach for contempt for non-payment of alimony and counsel fees due on December 22d, 1914, and then demanded, amounting to $532 alimony and $90.56 costs was made. This demand included the amount due on the 'previous application. This application, on hearing before Vice-Chancellor Howell, was denied by order advised March 5th, 1915. Application is now made to a third vice-chancellor by petition on April 9th, 1915, for an attachment in not paying the entire amount of alimony due, $637, besides costs. A plea of res adjudicata is filed.

In my judgment, the proceeding in cases like this before different vice-chancellors in succession is altogether irregular and cannot be countenanced.

Under rule 194, where a cause is referred to a vice-chancellor, all proceedings in it, to the final decree, shall be had before him, and in the rule relating to general reference to the vice-chancellor, 204a, which is the only authority for the present application, the proviso in section 5 allows subsequent applications to another vice-chancellor, “if the cause has not been referred by special order,” and even in such case, allows the vice-chancellor to whom subsequent application is made to decline to entertain it, “if, in his judgment, such application should be made to the vice-chancellor to whom any previous application in such cause has been made.”

In my judgment, this cause," especially in reference to the matter of alimony fixed by the decree nisi, is still pending before Vice-Chancellor Griffin, and, under rule 194, the present application should be made to him. It is a case also where under rule 205a I should decline to hear tire application. The amount of alimony was fixed by Vice-Chancellor Griffin apparently at a hearing in open court. A subsequent application to attach was also heard before him on oral proofs and examination, and the decision -on the question whether and to what extent the hearing on subsequent applications should be considered as concluded by his previous decrees is best committed to his decision.

In these cases the hearing is often of a summary character, the evidence or all of it. is not reported, and the decisions are often given only orally. The proceedings are of a summary character, sometimes somewhat informal, and necessarily so, because of the necessities and urgency of the payments to be made for the wife’s protection.

Tn applications of this kind, whenever made and however often, the substantial question, I take it, is, whether the respondent is at the time of any application (or of the hearing) considered by the court, able to pay the amount due, and as contemptuously failing to pay. That at some previous time he was held, on a previous application, unable to pay the amount due, is not of itself conclusive as to his subsequent ability, and the applicant should certainly be allowed to show such ability. But where this question of contemptuous failure to pay at the time of the subsequent application necessarily involves a question of financial ability, which was, or was supposed to be, considered with reference to the hearing of the previous application, and on proofs then taken, then the decision, as to how far the previous proofs taken as to financial ability should control either the course of proof or the adjudication on the subsequent application, is a matter which generally can only be equitably and justly determined by the vice-chancellor who heard the previous application. The discovery either of new evidence or other matters bearing on the issue, may show the present ability to pay, notwithstanding the previous adjudication of inability, and in these cases where the court must, so far as at all possible, protect the rights of the wife given to her by its decree, opportunity to show such ability at a subsequent time cannot be denied. But, for the just protection of the respondent, the right to make subsequent application should not be made the occasion for the mere attempt to review the previous decision, either before the same or another vice-chancellor. An appeal is the only allowable proceeding to this end.

And, as I repeat, therefore the question whether and to what extent the matters relied on as contemptuous failure to pay on subsequent application should be considered as open for hearing, notwithstanding a previous denial, must ordinarily be a matter that is best committed to the court or judge before whom the previous hearing took place.

In my judgment, confusion will generally result in case another vice-chancellor should entertain subsequent applications in these cases. I will therefore advise an order directing that this application, with the proceedings and plea therein, be referred to Vice-Chancellor Griffin.