author: Jess, J.

text:
    Warren County Circuit Court.
    George B. Williams, plaintiff, v. Joseph Minsavich, defendant.
    Judgment by Default — Legal Time for Filing Papers — Twenty Days for Filing Answer Expired on Sunday — Judgment was Entered on Monday at One O’clock, Answer Filed at 4.45 O’clock — Held, Answer Filed Within Time — When Time for Performance Falls on Sunday, Compliance on the Following Day Will be Sufficient.

      Mr. William, II. Morrow, for the rule.

      Mr. Joseph M. Poseberry, Contra.

   Jess, J.

This is a rule to show cause why a default judgment should not he opened.

The summons and complaint were served personally upon the defendant on the 9th of March last. _ An affidavit of merits was filed on March 16th. Damages were assessed and judgment interlocutory and final entered on March 30th at one o’clock p. m. Defendant’s answer was filed on March 30th at 4:45 P. M.

The question to he decided is whether the answer was filed within legal time and judgment prematurely entered. The defendant was required to answer within twenty days after service upon him of the process and complaint. The twentieth day after service fell on Sunday, the 29th day of March. The answer could not be filed on that day, and, therefore, the filing on the following day was in time.

Tn Von de Place et al. v. Weller, 64 N. J. Law 155, the supreme court granted a peremptory mandamus directing a district court to approve and accept an appeal bond which the court had refused to receive, on the ground that it had not been tendered within the time required by the statute, namety, five day's after the rendition of the judgment. The last of the five days fell upon Sunday and the tender of the bond was made on Monday following. It was held that this was a compliance with the statute.

The decision in that case was rested upon the court’s view of the law as applicable to an action required to be taken by the court. Chief-Justice Gummere, in his opinion, points out that in Hughes v. Griffiths, 13 Com. B. (N. S.) 324, it is suggested that a distinction is maintainable between a thing which is to be done by the court and a mere act of the party. He adds, however, “whether such distinction rests upon any solid foundation seems doubtful.”

He cited two cases in support of the views he expressed. In the first of these (Stryker v. Vanderbilt, 27 N. J. Law 68), it was held that when the time for the performance of a contract falls on Sunday', a compliance on the following day will be a sufficient performance.

“We think a similar rule should be adopted,” the chief-justice comments, “in construing statutory provisions requiring acts to be done by parties in the course of judicial proceedings.”

The other case- cited was that of Feuchiwanger v. McCool, 29 N. J. Eq. 151, in which the chancellor held that the provision of the Chancery act, which required the filing of an answer within sixty' day's after the return of the subpoena, was substantially complied with by the filing of the pleading on the day after the expiration of the time limited, when the last day of that period fell on a legal holiday.

Counsel, in opposition to the rule, has called my attention to the case of Bangor v. Somerville, reported in 1 N. J. L. J. 252. In that case Mr. Justice Depue, at the Essex circuit, held that when the last day for filing a plea fell on Sunday, filing on the following day was not in time, and denied the motion to set aside the judgment. No reasons were assigned for the ruling.

Ill the face of such high authority, I should not venture to entertain a contrary opinion, but for the fact that I feel the later views of the supreme court, as expressed in Von de Place v. Weller, supra, are controlling upon the question presented for decision, and, as Chief-Justice Gummere suggested, better calculated to protect the interests of litigants.

I may add that, while in other jurisdictions there is some diversity of decision on the subject, the weight of authority appears to support the conclusions here reached.

The rule will be made absolute and the judgment set aside.


source: Caselaw Access Project

author: Kocher, Advisory Master.

license: Public Domain

text:
    Essex County Orphans Court.
    In the matter of the estate of Julia A. Ludlow, deceased.
    [Decided May 18th, 1925.]
    Accounting — Exceptions to Account of Administrator With Will Annexed — Accountant, Beneficiary Under Will, Claimed Absolute Gift of Property, and Not Required to Account — Held, That Will Did Not Make Absolute Gift, but Imposed a Trust Upon the Property — A Trustee Should Have Been Appointed as it is No Part of an Administrator With Will Annexed to Assume That Duty, but Having Done So He Will be Required to Account For His Dealings With the Business— Administrator Also Sold Business to Himself in Violation of Settled Law.
    On exceptions to accounting.

      Mr. Ernest L. Quaclcenbush, proctor for accountant.

      Messrs. Pomerehne, Laible é Kautz, proctors for exceptant.-
   Kocher, Advisory Master.

Wilhur E. Ludlow, administrator with the will annexed of Julia A. Ludlow, deceased, submitted his account to this court, to which account numerous exceptions were filed.

A preliminary motion was made on behalf of the accountant challenging the jurisdiction of the court over the subject-matter of certain of the exceptions. The matter was submitted on briefs and no testimony taken. Such facts as may hereinafter be used are gleaned from the briefs filed in the cause.

In and by her last will and testament the testatrix gave to her grandson Wilbur (the accountant) "the use and the right to conduct and carry on the billiard and pool business •carried on by my late husband at No. 77 Springfield avenue, in the cityof Newark, New Jersey, together with all billiard and pool tables and appurtenances, all fixtures, all outstanding book accounts, and all cash money deposited in the bank to the credit oí W. Ludlow, and which said account has long stood and still stands in that name.” The will further provided that Wilbur E. Ludlow should first receive $25 a week from the profits of the business, and that he should, in addition thereto, give the daughter of testatrix, Nettie Ludlow, $12 each week. This arrangement was to continue until the daughter’s death. The will further provides that if Wilbur died before said testatrix’s daughter, Nettie, then the business was to be sold and the proceeds used as far as necessary for the support of the daughter, Nettie. If the daughter died before Wilbur, then the entire business, including cash on hand, and so forth, was to become the property of Wilbur. The daughter, Nettie, in addition to the $12 per week, was also to have an equal one-half part of the profits of the business after the deduction of the $25 a week for Wilbur and the $12 a week for Nettie, and that if said business should prove unprofitable to such an extent that it failed to produce the aforesaid weekly payments to Wilbur and Nettie, then the executor was authorized to close the said business and sell the same in such manner as he deemed best, and to invest the proceeds and use the income and a part of the principal, if necessary, for the support of the daughter, Nettie.

The theory of the accountant is that Wilbur received an absolute gift of the property, and cannot, therefore, - be required to account for the same in this court, for the reason that any transaction in relation to such business is between him, as owner of the business, and not as administrator with the will annexed, and the daughter,- Nettie. Therefore, accountant moved to strike out all exceptions relating to these matters.

I am unable, however, to agree with the accountant as to the construction which lie places upon the terms of the will.

In the first place, the grant to the grandson, Wilbur, is “the use and the right to conduct and carry on” the business. This language does not, to my mind, indicate an intention on the part of the testatrix to make an absolute grant to the grandson, subject to the charges against the business later provided for in said will. In fact, the very nature of those charges appear to be dispositive of the whole situation. It is perfectly apparent that the primary object in the mind of the testatrix was to provide an income for her daughter. This is shown in the provision of the will for the final disposition of the business, where, it will'be recalled, the will provides that in case the business does not produce.the $25 a week, which I consider to be salary for the services rendered by the grandson in carrying on the business, and the $12 a week for the daughter, the will directs that the business be sold, the proceeds invested, and 'the income therefrom, and part of the principal, if necessary, used for the support of the daughter.

It appears to me quite clear that the testatrix imposed a trust upon this property and that the administrator’s duty was to carry out the terms of the trust. Of course, the proper course to have been pursued would have been to have had a trustee appointed to administer this trust, as, technically, it is no part of the duty of an administrator with the will annexed. However, having taken upon himself the burden of administering the trust, he will be required to account for his dealings with the business.

There is another point which might as well be disposed of now, although not raised upon the briefs. I feel I can dispose of.it, because the law upon the subject is so entirely settled. It appears that the grandson ran the business unsuccessfully, and that at a certain time — just when it does not appear — sold the same to himself, individually, for a sum very much less than the inventoried value of the same. The rule is inflexible that a sale made by an executor, or any other person acting in a fiduciary capacity, to himself or for his benefit, directly or indirectly, will be set aside at the instance of the party prejudiced, even though the fiduciary shall have gained no advantage therefrom and acted in entirely good faith and a fair price for the property was obtained. This rule is one of-public policy, which the law has established as an inflexible rule applicable to every emergencjq so that he shall not place himself in a situation in which he will be tempted to take advantage of his cestui que trust. The fiduciaries must, therefore, submit to this regulation, and, if they do any act in violation of it, no matter how pure their intentions may be, such act is voidable at the instance of the persons whom they represent. At such sales the fiduciary is forbidden to purchase, because his interest as such purchaser is opposed to the interest of his cestui que trust, and he, therefore, acts under a bias in his own favor. So jealous is the law on this point that a trustee may not put himself in a position in which to be honest must be a strain upon him. Koch„ Orph. Gt. Pr. and cases cited on pages 450 and 451. While it is true that these cases involve the transfer of real property, the principles above enumerated must perforce be applied to personal property.

As a matter of fact, in the case under consideration, a sale by the administrator with the will annexed of the business to himself would be to his great advantage, because he would take it free from the burden of payment to testatrix’s daughter, and would only be accountable for the proceeds of the sale. As was hereinbefore stated, the principles involved in the question under consideration seem to be so firmly settled to admit of no doubt. Inasmuch, however, as the proctor for the accountant has not briefed this point, if he desires to do so, I will give him an opportunity, especially as this question is being considered merely to guide counsel in the future proceedings which must be had in this case.

I will advise an order denying accountant’s application to strike out the exceptions.


author: Buchanan, Y. C.

text:
    Arthur J. Pope, petitioner, v. George Brown et al., defendants.
    [May 20th, 1925.]
    Children — Custody—Proceedings by Father Against Child’s Maternal Grandparents, in Whose Care the Mother Had Placed the Child Before Her Death — Alleged Abandonment of Child by Father — Conduct of Father Toward Wife Reflects No Credit Upon Him, But Abandonment Nor Right of Custody in Grandparents. Not Established — Right of Custody Prima Facie is in Father Unless Lost by Abandonment and Decree Will Go to Father, With Right of Visitation by Grandparents, With Costs' in Favor of Grandparents.

      Mr. Frank I. Casey, for the petitioner.

      Mr. Charles A. Malloy, for the defendants.
   Buchanan, Y. C.

This is a habeas corpus proceeding brought by petitioner for the custody of his infant son, about one year of age, against the child’s maternal grandparents, who have refused him possession. The child’s mother is dead. The pleadings raise the issue of the right to the permanent custody of the child.

In such a ease, the father has prima facie the legal right to the custody of his child, and, ordinarily, is entitled to have that right enforced by decree of this court in proceedings such as the present. Richards v. Collins, 45 N. J. Eq. 283; Warnecke v. Lane, 75 Atl. Rep. 233; In re Kirschner, 111 Atl. Rep. 737; Ziezel v. Hutchinson, 91 N. J. Eq. 325; In re Judge, 91 N. J. Eq. 395.

The legal right may be lost by surrender (as in cases of statutory adoption) or by abandonment. See the cases, supra. Furthermore, even where it has not been lost, it will not be enforced where such enforcement would “imperil the personal' safety, morals, health or happiness of the child.” Richards v. Collins, supra; In re Kirschner, supra.

Where the legal right has not been lost, however, and the exceptional circumstances just mentioned do not appear, the father is entitled to the custody of his child of tender years, as against the maternal grandparents. Such was the express determination of the court of errors and appeals in Ziezel v. Hutchinson, supra.

The defendants contend that the evidence shows an abandonment by the petitioner, and rely upon the analogy of the facts in Warnecke v. Lane, supra. Each case necessarily stands on its own facts and circumstances, and the case at bar by no means parallels the Wameche Case. The present petitioner is a young man. He was married May 29th, 1922. The couple never had a separate home of their own, living first with the husband’s mother, later with the wife’s aunt, and still later with the wife’s parents (the present defendants), with whom they were living when the child was born, April 3d, 1924, and up until June 2d, 1924, when the husband left. The wife (and child) continued to live with her parents until her death, November 21st, 1924, and they have had the child ever since.

The husband had previously left his wife for about two and a half months, while they were living with his mother. The precise circumstances of this separation do not appear. His leaving in June, 1924, seems to have been the result of a quarrel or disagreement arising out of a call by the wife’s minister and some real or alleged slight of the minister by petitioner, augmented by friction later in the evening, when he desired to go to sleep and she did not. It appears that he insisted on occupying the same bed with his wife notwithstanding her illness (which seems to have been of some tubercular nature). There had also been friction as to his remarks concerning the child, and as to the wife’s alleged refusals to let him see or caress the child.

He says that after ho left in June, 1924, he went bath, and his wife told him “she didn’t want to see him again,” and that both she and. her mother said they did not want any support from him. The mother denies this; the wife, of course, cannot. In any event, he did not contribute to the support of the wife or child thereafter, the defendants defraying all expenses, even including the large physician’s bill for the wife’s illness. He did not attend his wife’s funeral, but says that was because he believed her parents did not want him there.

Petitioner applied to defendants for the child on November 26th, the day following his wife’s funeral, and again on November 29th, in company with some justice of the peace or constable, but defendants refused to permit him to have the child. The mother left a will directing that her parents should have the custody of the child, and, admittedly, they are fond of the child. The present petition was filed March 18th, 1925.

• It must be conceded that the husband’s conduct toward his wife and child reflects no credit upon him, to say the least. Even assuming that the difficulties between them were largely the result of the wife’s whims or beliefs, not founded on reasonable or factual basis, he should have taken into consideration her condition of illness, and,should have made allowances therefor in favor of the woman he had vowed to love and cherish, rather than to stand out for his real or fancied “rights,” and suffer himself to be piqued at real or fancied disregard thereof. Of course, his failure to contribute to the support of the child is indefensible, but it apparently was the result of the strained relations between himself and his wife and her parents. The grandmother and a nurse both testify that on one occasion .petitioner said he didn’t want anything more to do with the child, because it “looked too much like a Brown” (his wife’s maiden name), but the same nurse says that petitioner “did show affection for the child until it was moved downstairs.”

On the whole case I am not able to find that petitioner abandoned the child or the right to its custody. The facts are more nearly similar to those in the Ziezel Case (supra) than in the Warnecke Case.

Nor do the facts show that custody in the father would imperil the child’s safely, morals, health or happiness. Petitioner is living with his aunt, twenty-seven years of age, and her husband and child of seven. The aunt is a practical nurse. There is not a great difference between the physical surroundings in the two homes. Perhaps, in view of the tubercular disease of the mother, safety lies rather away from the home of the grandparents.

In view of the facts and the authorities, I feel constrained to award the custody to the father. There will be, however, a provision for visitation by the grandparents, the benefit of association with whom is pointed out by the court of errors and appeals in Lippincott v. Lippincott, 3 N. J. Adv. R. 687. The decree will also be for costs in favor of the defendants, under the circumstances.


text:
    J. Frank Youmans, petitioner, v. Jessie C. Youmans, defendant.
    [Filed May 21st, 1925.]
    Divorce- — Desertion and Extreme Cruelty — -Wife's Conduct Such as to Indicate Mental Derangement — Insanity an Affirmative Defense, Which Must be Pleaded, and Burden of Proof is on Defendant — Extreme Cruelty Is Ground For Relief, Though it Arises From Delusion, at Least so Long as Deféndant is Not Insane Generally.
    On final hearing.

      Messrs. OUphani & Mitchell, for the petitioner.

      Mr. Francis W. Stone, for the defendant.
   Buchanan, Y. C.

Petitioner sues for absolute divorce, alleging two causes — -■ desertion and extreme cruelty. His proofs show to my entire satisfaction that the wife accused him of undue intimacy with another married woman; that there was no basis whatsover, in fact, for such accusations; that she was guilty of such a course of conduct toward him as amounted to extreme cruelty for more than the six months statutory period, injuring his health and rendering it unsafe for him to remain with her, so that though she, in fact, left him, he yas under no duty to seek her return; that she remained awaj' for more than the statutory two years, with no indication of desire or willingness to return, or to change her conduct if she did return, but, on the contrary, persisting in her accusations during her absence.

The husband, then, would be entitled to a decree, oil eitiier or both grounds, if the wife were mentally responsible for her conduct. It would seem, from the proofs, that the wife believed her charges were true, yet the evidence also shows that she had no proof, and admitted that she had no proof (up to a time shortly before her leaving, when she claimed to have acquired some proof), and shows, therefore, a course of conduct so illogical or irrational as to make it seem probable, or, at least, highly possible, that her mentality was to some extent, and, in that behalf, defective or deranged. It appears, indeed, that the husband himself believed that his wife was mentally deranged, and made some attempt to have her examined and committed to the state hospital, but such examination was never, in fact, made.

At the hearing I took the view that where the proofs show that such mental condition is so highly possible an explanation of, or cause for, her conduct, as in the present case, the husband has not sustained the burden of proof upon him, if he fails to present evidence to negative that possibility; none such lias been introduced.

That point had not been considered by counsel in their preparation for trial and argument, and, on application, a re-argument was granted, the result of which leads me to the conclusion that under the authorities in this state the husband is entitled to a decree. Omitting from consideration the questions of the presumption of sanity — that insanity is an affirmative defense which must he pleaded, and was not in this case, and that as an affirmative defense the burden of proof thereof is on the defendant, it seems to have been definitely determined by the court of errors and appeals in Smith v. Smith, 40 N. J. Eq. 566 (at p. 601), that extreme cruelty is ground for relief, notwithstanding it arises from delusion, at any rate so long as the defendant be not insane generally. There is in the present ease nothing to show that defendant is insane generally. The Smith Case was a suit by the wife against the husband for divorce from bed and board, but I am not able to observe that any difference in principle is neeossitated or indicated by the fact that the present petitioner is the husband, nor by the fact that the present suit, under the amended statute, is for absolute divorce.

The allowances as to costs and counsel fee heretofore announced will be undisturbed.


text:
    In re the alleged will of Rose Dougherty, deceased.
    [May 20th, 1925.]
    Wills — Establishment of, and Probate — Will Established and Admitted in Orphans Court — Upon Appeal, Subsequent to Original Hearing, Copy was Found in Surrogate's Office in Substantial but Somewhat Different Language — Testimony in Prerogative Court, As Well As Court Below, Leaves No Doubt of Existence of Will and Decree of Probate Will Be Affirmed, Subject to Modification to the Extent it Differs From the Copy Produced Here.
    On appeal from the Mercer orphans court. On final hearing.

      Mr. James J. McGoogan, for the appellants.

      Messrs. Geraghiy <& Weelans. for the respondent.
   Buchanan, Y. C.

The appellants, being certain of the heirs-at-law of decedent, seek reversal of the decree of the orphans court of February 29th, 1924, establishing and admitting to probate the will of Rose Dougherty, deceased. Proofs were taken-in this court in addition to the evidence before the orphans court.

It must be admitted that there are certain discrepancies and contradictions in the testimony, but if this were not so (as to testimony of witnesses regarding occurrences of twenty years ago), it would be so surprising as to cause the gravest doubt of the truth of the testimony. Upon all the evidence I am entirely convinced, beyond reasonable donbt, that Rose Dougherty duly executed her last will and testament on March 5th, 1901, in the form hereinafter mentioned, that that will was not revoked by testatrix prior to her death a few months later; that it has become lost since her death, and that it should be established and admitted to probate.

A copy of this will was fonnd by the deputy surrogate of Mercer county in the files of the surrogate’s office subsequent to the original hearing in this court. It reads as follows:

“I, Rose Dougherty, of the city of Trenton, in the county of Mercer and State of New Jersey, of sound and disposing mind and memory, make and publish this, my last will and testimony, as follows, to wit:
“First. I direct that all my just debts and funeral expenses be paid as soon as convenient after my death.
“Second. I give, bequeath and devise all those three houses and lots known as numbers 3.90, 392 and 394 Union street, Trenton, to my niece, Margaret A. Carles, absolutely, her heirs and assigns forever, on condition that the said Margaret A. Carles provide, maintain and care for my husband, Robert M. Dougherty, during liis natural life.
“Third. I give, bequeath and devise all the rest and residue of my real and personal estate to my niece, Margaret A. Carles, her heirs and assigns forever.
“Fourth. I hereby nominate, constitute and appoint my niece, Margaret A. Carles, sole executrix of this my last will and testament.
“In witness whereof, I have heretunto set my hand and seal this fifth day of March, in the year of our Lord one thousand nine hundred and one.
her
“Rose X Dougherty, [l. s.J mark
“Signed, sealed, published and declared by the above testatrix, as and for her last will and testament, who. in our presence, and at her request, and in the presence of each other, have hereunto subscribed our names as witnesses.
“Hyman Lotte, Trenton, N. J.
“Martin P. Devlin, Trenton, N. J.’’

The will as established in and by the decree in the orphans conrt was somewhat different in language (although substantially the same as to its provisions), and, to that extent, the decree below must he modified.

Rose Dougherty in 1901 was well advanced in years and in serious ill-health; as I have said, she died a few months later. Her family consisted of her husband (who (lied a little while after she did); á niece, Margaret Carles (the proponent), who had been practically, though not legally, adopted by the Doughertys at the age of two years, and who was then about thirty, and John P. Carles, proponent’s husband.

The Doughertys had accumulated a little- property, consisting principally of three houses on Union street, in one of which they lived. They had no children, except the foster daughter, Margaret Carles, whose efforts and earnings had contributed to the acquisition of the property.

The houses stood in the name of the husband, Robert Dougherty. Two years earlier he had made a will, by the terms of which he left all his estate to his wife, and after his wife’s death to “my adopted daughter, Margaret Carles, her heirs and assigns forever.” There was some fear that some of Robert Dougherty’s relatives might make trouble for Mrs. Carles after his death,'and, accordingly, in March, 1901, the properties were conveyed by Robert Dougherty and his wife to Margaret Carles, and then by Mrs. Carles and her husband to Mrs. Dougherty. These deeds are dated March 2d, 1901,' and March 4th, 1901, and were followed by the will in question, dated March 5th, 1901.

Three witnesses testify to the execution of the will by Mrs. Dougherty, under the supervision of Mr. Martin P. Devlin, a well-known member of the Mercer county bar of the highest standing. These witnesses are Mrs. Carles, her husband, and a neighbor, Hyman Levie. The testimony also is that the will was drawn by Mr. Devlin, in long hand, and that after the execution it was . taken by him to be lodged with the surrogate.

Mr. Devlin has no recollection of the matter whatever, although he identified the deeds of conveyance as having been drawn by him and executed in his presence, because of his signature thereon.' He denied that he had ever drawn the will in .the language thereof as testified to by Mrs. Carles in the orphans court (because of certain phraseology). He also felt quite sure that he had not drawn a will in long hand, because he said he never did that except in an emergency, and then always substituted a typewritten one afterwards, if possible. He also felt quite sure that he had never lodged any will with the surrogate’s office for safekeeping prior to the testator’s death, although he mentioned another instance where other parties were positive that he had done so.

Testifying subsequently to the discovery, and his reading of the copy of the will, Mr. Devlin said that the language was his, except that the attestation clause was a little different from the phraseology he used. On the whole, he could not say that the will as set forth in the copy had not been drawn by him — he rather believed that it was the language of a will drawn by him. He did not, however, change his testimony as to long-hand drawing, or lodging with the surrogate.

In view of this subsequent testimony of Mr. Devi in, and in view of the fact that the will was a part of a series of instruments, all at apparently one time, of which the two deeds which he admittedly drew were the prior part; in view of the relationship between the Doughertys and proponent, and the facts and the contents of the earlier will of the husband, and in view of the testimony of the witness Hyman Levie, who has no interest in the suit; never had any interest in the matter; was only a neighbor called in for the sole and express purpose of witnessing Mrs. Dougherty’s will, which is the only will he ever witnessed — in view of all this there can be no doubt whatever that a will drawn by Mr. Devlin was signed by Mrs. Dougherty at that time, under the supervision of Mr. Devlin.

The contents of the will are made certain by the copy. That this is, in fact, a copy of the will so drawn and executed I can have no doubt, under all the circumstances. The testimony is that Mr. Devlin was directed to take the will to the surrogate’s office, agreed to do so, and took it from the house with him. Mr. Levie’s testimony corroborates this. Mr. Devlin does not think he ever lodged a will for safekeeping with the surrogate, but it must be remembered that this was twenty years ago, and early in Mr. Devlin’s practice. I myself cannot recall, and do not believe, that I ever lodged a will with the surrogate during my practice, but I should not care to swear positively that I had never done so. In any event the copy is in Mr. Devlin’s language, and it is perfectly certain, from the testimony of Mr. Titus, that the copy was made by the surrogate’s office from what was an apparently authentic will, and after the death of Mrs. Dougherty. The carefulness, accuracy and dependability of Mr. Titus are so well known to every member of the Mercer county bar as to need no added comment. The correction of the word “death” is to my mind strongly corroborative of the testimony that the original will was in longhand, and that the will was written by Mr. Devlin in longhand, at the house, and, therefore, under embarrassment to him, would explain the slip made in the formulary ■of the attestation clause.

That the will was duly executed I have no doubt, not only from the testimony of the other witnesses, but from that of Mr. Devlin, who says that, although he has no recollection of the execution, he is certain (and, knowing Mr. Devlin, I am likewise certain) that it was executed in the requisite legal manner. That is was executed under his supervision has already been shown. The testimony as to its being witnessed by Mr. Carles is sufficiently explained by the fact that Mr. Carles was called to sign; that he did not actually sign was probably due to the fact that he could only make his mark. The error in the testimony in this behalf was not material, especially after all these years. He had signed the deeds at about the same time; he had also signed as witness to the earlier will of Mr. Dougherty.

That the will was never revoked is certain from the fact that it was. in the surrogate’s office after the death of Mrs. Dougherty, and the corroborative evidence of Mrs. Scullin (testifying against the financial interest of her own children) as to the statements of Mrs. Dougherty three or four days before her death; also the evidence from the conduct of Mrs. Carles (who believed that no further proceeding was necessary in regard to the property and has acted as owner all these years), and the inaction during all the same time of all the heirs-at-law of Mrs. Dougherty, who live in Trenton or vicinity, and took no step to assert any claim to the property until the fact of the non-probate of the will was discovered a year or two ago.

Decree will be advised aceordi ugly.


author: Per, Curiam.

text:
    JULIAN VANDERBILT ET AL. v. FRANK CHIOSCINSKI.
    Argued May term, 1925
    Decided May 29, 1925.
    Rule to Show Cause — Laches and Indifference of Defendant Interrupted Only Upon Knowledge That a Portion of His Land .Was Subject to Lien of Judgment — Rule Discharged.
    On rule to show cause from Gloucester Circuit.
    Before Justices Parker, Minturn and Black.
    Eor the rule, Thomas G. Fuso and Wescott & Weaver.

      Contra, John D. AicM.ullen.

   Per, Curiam.

The judgment iñ this case was regularly obtained at the Circuit, after due notice to the counsel of defendant, after the latter had left the state for Florida, apparently ignoring his obligation to present his defense, and failing to appear at two terms of court, thus manifesting complete indifference to the legal situation, until it became manifest that a portion of his land, which was supposed to have been sold under a general sale by his agent, had for some reason been omitted from the sale, and thus had become subject to the lien of this judgment. ■ Then only did he display sufficient interest in the proceedings to apply for and obtain this rule to show cause. This statement of the factual situation renders the discharge of the rule, with costs, the inevitable consequence of defendant’s laches and indifference.

Such will be the rule.


author: Walker, Chancellor.

text:
    New Jersey Court of Pardons.
    In the matter of the creation, powers and prerogatives of the court of pardons.
    1. The court of pardons is in no judicial sense a court, and is not so called in the constitution. It was first named a court by act of the legislature in 1853, and 1-lie present act (Comp. Stat. p. 3895 § /) so denominates it
    2. The constitution of 1844, article 5, paragraph 10, empowers the governor, or person administering the government, the chancellor and sis judges of the court of errors and appeals, or a major part of them, of whom the governor, or person administering the government, shall he one, to remit fines and forfeitures, after conviction, in all cases except impeachment; and in article 2, paragraph 1, granting the right of suffrage, it is provided ihat no person convicted of crime which then excluded him from being a witness, unless pardoned or restored by law to the right of suffrage, shall enjoy the right of an elector. This latter provision concerning restoration to the right ot suffrage is by the constitution made a prerogative of the court of pardon e, although not devolved upon it by express terms.
    3. The crimes which at the time of the adoption of the constitution of 1844* excluded a convict from being a witness, and, therefore, excluded, and stilt exclude, him from enjoying the right'of an elector, were and are blasphemy, treason, murder, piracy, arson, rape, sodomy, polygamy, robbery, conspiracy, forgery or larceny of above value of $(>, perjury or subornation of perjury.
    4. The pardoning power is an attribute of sovereignty, and a pardon may be conditional, meaning that mercy may be extended upon terms.
    5. The effect of a pardon is to make the offender a new man, to acquit him of all forfeitures annexed to the offense for which he obtains his pardon, not so much to restore his former, as to give him a new credit and capacily.
    (i. The constitution in article 3, paragraph 1, provides for the distribution of tlio powers of government into three departments, legislative, executive and judicial, and provides that no person or persons belonging to, or constituting one, of these departments, sháll exercise any of the power properly belonging to either of the others, except as therein expressly provided (succession of the president of the senate and speaker of the house of assembly, respectively, to the executive department in certain cases). And the pardoning power in this state is a prerogative of the executive department, and is bestowed by the constitution in article 5 relating to the executive.
    7. The granting of a pardon or remission of a penalty under the constitution requires the affirmative vote of a majority of ali the judges constituting the court of pardons, of whom the governor, or person administering the government, must be one. And the power to remit includes the power to remit costs as well as fines and forfeitures.
    8. The clause in the constitution empowering the court of pardons to remit fines and forfeitures after conviction, empowers the court to restore to the right of citizenship a person convicted of a crime which deprives him of the right of being an elector, in accordance with article 2, paragraph 1. Semiüe, that the method of making the restoration is by remitting the forfeiture.
    9. A full pardon for an offense operates to restore the right of suffrage where it has been forfeited upon the conviction of crime, and the word “law” in the clause “restored by law to the right of suffrage” means lawful action by the court of pardons and not by the legislature, because the latter being a department of government distinct from the executive, cannot constitutionally encroach upon the power of the executive department by granting a pardon or remitting a forfeiture; and restoration to the right of suffrage is the' effect of remission of the forfeiture of the right of being an elector.
    10. The power to grant a pardon includes the right to remit part of-the penalty without pardoning, and that permits the court of pardons to commute sentences, there being no express words granting that power.
    11. A parole is not a pardon. It may be revoked for cause, and the convict is under surveillance by proper officers during the period of parole. It is a prison regulation designed for the benefit of the convict, and that power can be, and has been, bestowed upon other authority as well as on the court of pardons; and, while a parole is not of itself h. conditional pardon, nevertheless, the court of pardons has the- power in effect to grant a parole, irrespective of statutory authority, by bestowing upon a convict a limited pardon, one with such conditions annexed as are incident to a parole.
    12. The present act concerning parole (P. L. 1918 pp. 343, 354; amended, P. L. 1919 p. further amended, P. L. 19f,S p. %56), provides that the several boards of managers of the correctional institutions of this state shall have power to release upon parole such inmates as they may determine to be eligible therefor, except persons sentenced to death, and to revoke paroles for cause.
   Walker, Chancellor.

The following view of the creation, powers and prerogatives of the court of pardons of New Jersey, with historical, constitutional, statutory and case law relating thereto, has been written at the request of the governor and other members of the court, in the hope and expectation that it may •prove useful, not only to the court itself, but also to the bar when questions may hereafter arise concerning the power and prerogatives of this tribunal of mercy.

The court of pardons is in no judical sense a court, and is not called a court in the constitution. It was first so named by an act of the legislature approved January 18th, 1853. See Cook v. Freeholders of Middlesex (Supreme Court, per Mr. Justice Vredenburgh), 26 N. J. Law 326 (at p. 349). This case very comprehensively deals with the pardoning power. There were two separate opinions in the supreme court, oue by Chief-Justice Creen and the other by Mr. Justice Vredenburgh, and the opinion in the court of errors and appeals was by Mr. Justice Elmer. 27 N. J. Law 637. The case will, for the sake of brevity, be hereinafter cited as Cook v. Freeholders.

The present act relative to the court of pardons (Comp. Stat. p. 3895 § I) provides that the officers of this state, in whom the power to remit fines and forfeitures and to grant pardons is vested by the constitution, shall he called the court of pardons. The name is quite appropriate, but if it had not been bestowed by legislative fiat, the body vested with the pardoning power might he called the board of pardons, or by some other designation. • It must, of course, have a name.

The constitution of 1844 created and defines the powers of the court of pardons, as follows (Art. 5 *[ 10) :

“The governor, or person administering the government, the chancellor, and the six judges of the court of errors and appeals, or a major part of them, of whom the- governor, or person administering the government, shall be one, may remit fines and forfeitures and grant pardons, after conviction, in all cases except impeachment.”

And the constitution, in Art. 2 \ 1, granting the right suffrage, provides that—

“No * * * person convicted of a crime which now excludes him from being a witness, unless pardoned or restored 'by law to the right of suffrage, shall enjoy the right of an elector.”

As will hereafter appear, the provision concerning restoration to the right of suffrage is a prerogative of the court of pardons, although not so expressed in terms.

The crimes which at the time of the adoption of the constitution of 1844 excluded the convict from being a witness, and, therefore, excluded him from enjoying the right of an elector, were blasphemy, treason, murder, piracy, arson, rape, sodomy, polygamy, robbery, conspiracy, forgery, or larceny of above the. value of $6, perjury or subornation of perjury, and conviction of any one of which still excludes the convict from enjoyment of the right of suffrage. •

The pardoning power appears always to have been an attribute of sovereignty. In England, as is well known, the king is the fountain of mercy. The granting of the' king’s most gracious pardon is the most amiable prerogative of the crown. 4 Bl. Com. 396. A pardon may be conditional. The king may extend his mercy upon what terms he pleases. Ibid. 401. The effect of the pardon is to make the offender a new man, to acquit him of all forfeitures annexed to that offense for which he obtains his pardon, not so much to restore his former, as to give him a new, credit and capacity. Ibid. 40%.. If pleaded in bar before trial it destroys the end and purpose of the indictment by remitting that punishment which the prosecution is calculated to inflict. Ibid. 337. After indictment it could be pleaded in bar of the prosecution or in arrest of judgment before sentence passed. .Ibid. But in our state a pardon cannot be granted before conviction. And, doubtless, the reason that our constitution made provision that a pardon, or remission of penalties, could be granted only after conviction, was to prevent the arbitrary favor of warding off the prosecution in any case, as incompatible with the genius of our institutions.

In this state and country the pardoning power is, and always has been, a prerogative of the executive department. In this state it is expressly bestowed in article 5 of the constitution relating to the executive department. And article 3, paragraph 1, declares that no person or persons belonging to or constituting that department shall exercise any of the powers belonging .to either of the others. Cook v. Freeholders (Supreme Court), 26 N. J. Law 326 (at p. 338), per Vredenburgh, J. And it also provides that no person or persons belonging to or constituting either of the other departments shall exercise any of the powers properly belonging to it. In Clifford v. Heller, 63 N. J. Law 105 (at p. 113), the supreme court said that the powers of government were wisely distributed by the constitution of 1814, in which a member of one department canont exercise the powers belonging to either of the others (except in the instances where the office of governor becomes vacant, the president of the senate, and after him the speaker of the house of assembly, succeed to the administration of the government and the power to reprieve convicts).

The power of pardoning as lodged in our federal and state executives holds the same position in our framework of government as the royal prerogative of pardon does in the English, but limited and diluted by a jealousy of that prerogative. Our court of pardons represents, not the parliament, but the king and his privy counsel. Cook v. Freeholders (Supreme Court, per Justice Vredenburgh), 26 N. J. L. 340. Ergo, it is a kingly, and not a parliamentary, power — that is, one vested in the executive and not in the legislature. I confess that, after a somewhat extended, research, I am unable to find any learning in the books to the effect that the privy council shared in the prerogative of mercy or were ever consulted by the king with reference to the propriety of a pardon. It may be, however, that the king occasionally asked the advice of the council in these matters. The duty, says Blaekstone, of a privy councilor, appears from the oath which he took, consisting of seven articles, one of which was to advise the king according to the best of his cunning and discretion. 1 Bl. Com.. 230. It may be that in the exercise of this power the council, on the request of the king, sometimes advised him respecting a pardon, but I have been unable to find any reported instance of it, and it would seem that the exercise of the prerogative of mercy was exclusively the king’s own, for' Blaekstone, speaking of it says: And it is declared in parliament by statute (27 Hen. VIII c. 2ff), that no other person hath power to pardon or remit any treason of felonies whatsoever; but that the king hath the whole and sole power thereof united and knit to the imperial crown of this realm.” 4 Ibid. 397. It is significant that Blackstone makes no mention of the privy council in connection with the prerogative of pardon.

In Ex parte Garland, 4 Wall. 380; 18 Law ed. 366, the supreme court of the United States, dealing with the pardoning power vested in the president by the federal constitution, said (at p. 371), that the benign prerogative of mercy reposed in him cannot be fettered by any legisaltive restrictions. And in Ex parte United States, 242 U. S. 27; 61 Law ed. 129, the same court held that the constitution assigns to the legislature the power to enact laws defining crimes and fixing the degree and method of punishment; to the judiciary the power to try offenses under those laws and impose punishment within the limits and according to the methods therein provided; to the executive the power to relieve from the punishment so fixed by law and so judicially ascertained and imposed. And again (at p. 4%) that the right to relieve from punishment belongs to the executive department.

Some question has been made as to whether the constitutional provision creating the court of pardons requires a majority of the members of the court, including the governor, or person administering the government, to act affirmatively upon an application for clemency, it being suggested that maj'be a majority of a quorum acting in the affirmative, the executive being one, could exercise the power of the court. But as to this, I think, there is no difficulty.

In Clifford v. Heller, supra, 63 N. J. Law 105, Mr. Justice Yan Syckel, writing the opinion of the supreme court, said (at p. 117) : “By the-constitution of 1844 the executive, with the concurrence of the chancellor and of the six judges of the court of appeals, or a major part of them, may grant pardons after conviction.” Art. 5 ¶ 10. To the same effect are the remarks of Chief-Justice Green in Cook v. Freeholders, supra (Supreme Court), 26 N. J. Law 326 (at p. 327); also those of Mr. Justice Elmer (court of errors and appeals), S. C., 27 N. J. Law 687 (at p. 689). Although it is not a point expressly decided, but only observed upon, it is apparent that the judges were of opinion that a decision could only be made by the votes of a majority of the members of the court in favor of clemency, including the governor, or person administering the government, and this precludes the notion that clemency can be extended by the votes of a majority only of a quorum of the judges of the court, even with the concurrence of the executive.

The power of granting pardons includes the power of remitting any part of the penalty. A part of the sentence may be remitted without pardon, but the criminal cannot be pardoned without the remitting of the penalty. The constitution of the United States vests in the president the power of pardoning without any specific grant of power to remit fines and forfeitures, yet the power of remitting fines and forfeitures is constantly exercised by the president without question. So, also, the ancient constitution of this state simply conferred the power of pardon, but it was always construed to include the power to discharge from fine and imprisonment. The general power of pardoning offenses necessarily includes the lesser power of remission and commutation. If the whole offense may be pardoned, a fortiori, a part of the punishment may be remitted or the sentence commuted. Cook v. Freeholders (Supreme Court, per Chief-Justice Green), 26 N. J. Law 329, 330. If a man be convicted for manslaughter the king may pardon the burning in the hand. Com. Dig. 171. After the conviction of Lord Stafford for treason King Charles II remitted the hanging and quartering part of his sentence of death, but the sheriff's of London expressed doubt as to the king’s power thus to commute the sentence, which doubt was proposed in the houses of parliament and was seconded in the commons by Lord William Bussell. Both the lords and commons rejected the doubt. Burneds Ilisl. of Bug. ch. 68. Later, when Lord Bussell was himself convicted of treason, King Charles II likewise remitted the more ignominious part of the sentence, namely, the mutilation, saying: “Lord Eussell shall find that I am possessed of that prerogative which in the case of Lord Stafford he thought proper to deny me.” Idem. ch. 69.

The design, of the present constitution was by express terms to confer the power of remitting part or the whole of the penalties consequent on conviction, of granting partial or a full pardon. Cook v. Freeholders (Supreme Court, per Chief-Justice Green), 26 N. J. Law 330.

If pardons were granted upon the idea of the innocence of the party pardoned there would be manifest justice in returning the fine not only, but also in making full indemnity for all the injuries sustained by reason of the conviction. If there be no guilt there is no ground for forgiveness. It is an appeal to executive clemency. It is asked as a matter of favor to the guilty, it is granted not of right but of grace. A party is acquitted on the ground of innocence, he is pardoned through favor. Ibid. SSI.

To remit a fine after conviction was not strictly the exercise of the pardoning power; it operated only'on the punishment — the unforgiven crime remained. Ibid. 311. It was what its language imports, namely, a remission of a penalty dissociated from the pardon of an offense; yet it was exercised only by the pardoning power.

There is no' question but that a pardon restores the right of suffrage to a person convicted of a crime which at the time of the adoption of the constitution of 1844 excluded the convict from being a witness. And the question has arisen, What is the meaning of the word “law” in the clause “restored by law to the right of suffrage,” and what is its application ?

The general power of pardoning offenders necessarily includes the lesser power of remission and commutation. And the costs of the prosecution may also be remitted to the offender. Cook v. Freeholders (Supreme Court, per Chief - Justice Green), 26 N. J. Law 333, SSL And it is the doctrine that the power to pardon includes the power to remit part of the penalty without- fully pardoning, that permits the court of pardons to commute sentences, there being no express words granting power to commute anjnvhere bestowed upon it by the organic law. In this case of Cook v. Freeholders, 27 N. J. Law 637 (at p. 641), the court ©f errors and appeals observed: “There is, however, no reason to suppose that if the phrase to remit fines and forfeitures be restricted to its proper meaning, to forgive the sentence or judgment inflicting such fine or forfeiture, it was introduced without a purpose. The constitution of 1776, hastily adopted in the midst of the war of the Revolution, used the words The power of pardoning criminals after condemnation in all cases of treason, felony or other offenses.’ While it cannot be doubted that, by virtue of this power, a fine to which a person condemned in a case of treason, felony or other offense, was liable, might be remitted, it was at least doubtful whether a fine imposed for a contempt, or a forfeiture of a recognizance or other forfeiture, incurred by a person not condemned for a criminal offense, could be. To put an end to such doubts, and to make the case perfectly clear, the pardoning power was very properly defined, as we now have it, by the adoption of the words of known import, about the meaning of which there could be no reasonable doubt.”

It will be observed that our court of last resort here, in effect, says that the phrase “to remit fines and forfeitures” should be restricted to its proper meaning, to forgive so much of th e sentence or judgment as inflicts such fine or forfeiture, and, also, that it is meant to remove any doubt as to power to remit fines or forfeitui’es not imposed as an incident to conviction of crime. Observe, too, that the court of errors and appeals (S. C., 27 N. J. Law, bottom of p. 640, top of p. 641) also says that it is clear that the power of granting pardons includes the power of remitting or pardoning any part of the penalty. Now, as the power to pardon includes the power to remit a forfeiture, which, in turn, clearly must include the remission of a forfeiture of the right of suffrage (the loss of which is a part of the penalty of the conviction), then, when the constitution provided in article 2, paragraph 1, that a person convicted of a certain crime shall not enjoy the right of an elector unless pardoned or restored by law to the right of suffrage, the restoration b]' law undoubtedly meant the granting by the pardoning power of the gracious act of remitting the forfeiture of the right of suffrage to the end that that right might he thereby restored without the pardoning of'the offense or remitting any of the other penalties incident to the conviction. In other words, a remitting of the forfeiture of the right of being an elector because of conviction of a certain crime would work a restoration to the right of suffrage, and this “by-law.”

It has been suggested that the words “restored by law” mean by act of the legislature, but, obviously, this is not so. The legal meaning or definition of the word law is not restricted to that of a statute. • Blackstone’s familiar definition is, that law signifies a rule of action. 1 Bl. Com. 88. One definition is: A rule or method of action or order of sequence. Another: A general rule of external human action enforced by a sovereign political authority. S Bouv. L. Did. (Rawle’s Rev.) m. When, therefore, the constitution says, “Unless pardoned or restored by law to the right of suffrage,’ it could not have meant by “restored by law,” that such restoration should be by “act of the legislature,” as that is not expressed, and there is nothing in the phrase, or the context where it is found, to indicate any such idea; and to attribute such meaning to it would necessarily be to conclude that the constitution makers who bestowed the pardoning power on the executive department (the governor and certain officials acting with him), and provided that no person belonging to any of the departments of the government should exercise any of the power properly belonging to either of the others, deliberately intended, notwithstanding such inhibition, that the legislature might, nevertheless, encroach upon the prerogative of the executive in the exercise of the pardoning power by remitting a forfeiture, a thing expressly reserved to the executive department. The -meaning undoubtedly was, “unless pardoned or restored by the court of pardons by remission of the penalty of loss of suffrage,” which would be a lawful restoration, and, therefore, a restoration by law, for the deprivation of the right of suffrage following the commission of certain crimes, was certainly the forfeiture of that right, and the power to “remit fines and forfeitures and grant pardons” is in the same organic law as the provision for the deprivation and restoration of the right of suffrage, and, therefore, the two provisions must be construed together, and being so read would amount to a provision, such as above stated, namely, unless pardoned or unless restored by the court of pardons to the right of suffrage through the medium of a remission of the forfeiture. It would be singular, indeed, if the constitution makers of 1844 intended for the first time in the history of New Jersey as a colony and as a state, to bestow upon the legislature any part of the pardoning power by the use of the ambiguous word “law” and nothing more, when, if the intention were to bestow the power upon the legislature, it could have easily expressed that meaning by naming the legislature; and, moreover, the jurisdiction would undoubtedly have been conferred in and by article 4, concerning the legislature and its powers, where, significantly, it does not appear. It is worthy of note that in article 2, paragraph 1, concerning the right of suffrage, this power of restoration of convicts to the right of suffrage is merely provided for, without reference to the repository of the power of restoration, and we have to look elsewhere in the instrument for that. Now, as stated, nothing is to be found under article 4 concerning the legislature, but only in article 5, paragraph 10, concerning the executive, wherein it is provided that the governor and the other officers associated with him, may remit fines and forfeitures, including necessarily forfeitures of the right of suffrage incident to the commission of certain crimes, and this, because nowhere else in the constitution is any power bestowed to remit the forfeiture of the right of being an elector. It therefore exists exclusively in the court of pardons.

Therefore, upon principle and the authorities, supra, we are to conclude that the power to pardon carries with it power to grant a limited or partial pardon, among others the power to remit part of the penalties consequent on a conviction, and that that power our constitution (1844) by express terms conferred upon the executive department. This grant of power was declartory of existing law, a thing constantly met with in constitutions and statutes. And surely a power in the legislature* to grant a limited pardon by restoring a convict to the right of suffrage (a prerogative inhering in the court of pardons, to be exercised by the remission of the penalty), cannot be implied on any doubtful construction of an ambiguous word or phrase in the constitution.

Bestored by law? Obviously, if there were any power to restore at the time of the 'adoption of the constitution — that is the lawful restoration that was meant, and there was such power, namely-, to grant a partial pardon — that is, remitting the forfeiture of the right of an elector. And that resided in the pardoning power, and was the granting of a partial or limited pardon.

In Ex parte Garland, 4 Wall. (71 U. S.) 838; 18 Law Ed. 866, the petitioner moved for leave to practice as an attorney and counsellor of the supreme court of the United States. He was opposed on the grormd that by act of congress it was provided that no person be permitted to practice in the supreme, circuit or district courts of the United States, unless he took an oath, the effect of which was that he had not participated in the Bebellion. Mr. Garland was unable to take this oath and pleaded a full pardon from the president of the United States for his offense of rebellion, and insisted that the act of congress as it affected his status in court was unconstitutional and void, and that if it were constitutional he was released from compliance with its provisions by the pardon of the president. And it was held by the court, Mr. Justice Field writing the opinion (18 Law Ed. 871), that the power of the president is not subject to legislative control; that congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders; that the benign prerogative of mercy reposing in him cannot be fettered by any legislative restrictions.

The principle announced in Ex parte Garland is entirely apposite here. It is to the effect that the pardoning power of the executive cannot be affected by the legislature, in other words, that it can in nowise be shared by the legislature, that the legislature cannot appropriate any- of the prerogatives to itself.

It is true that in England parliament sometimes legislated with reference to pardons (J Bl. Com. J/01), but it must be remembered that in England they have no written constitution, and that any statute which receives the royal assent at once becomes the law of the land and part of the constitution. But in our state, as above observed, the pardoning power is by the constitution committed to the executive deparment of the government, and, as seen, a member of one department (legislative, executive or judicial), cannot exercise any of the powers properly belonging to either of the-others. Therefore, under our law, as well as the federal law, as decided in the Garland Case, the pardoning power is strictly executive.

Now, there has grown up in this court a practice of granting a full pardon to every applicant for restoration to the right of suffrage. There is but one printed form of application for clemency, which is obtainable on request from the pardon clerk, and it provides inter alia., “Appealing to your honorable court for clemency, your petitioner [the convict] prays that * * * your honorable court may find such merit therein as will warrant the granting of [his] application for .” Here follows in parenthesis a line (“State whether parole, remission of fine or restoration to citizenship is sought.”) In the blank folowing the words “application for” is inserted a request for resto?ation to citizenship when that alone is sought, and yet, as stated, the court, in granting that request, as a matter of practice, issues to the offender, without any application therefor, and without consideration as to whether he merits it, a full pardon for his offense, which oftentimes, and in most instances., would not be granted, as it is genoraly undeserved, and the effect of which is to make the offender a new man, to acquit him of all forfeiture annexed to that offense for which he obtains his pardon, not so much to restore his former, as to give him a new credit and capacity.

Although the case of Gook v. Freeholders, in the supreme court, so far as it speaks of forfeitures apparently treats of them as forfeitures of estate, as in the English law, nevertheless, no such question was before the court. The only issue in that case was whether a fine which had been paid could, on the pardon of the criminal, be restored to him, and it was held that it could not; that a fine not collected could be remitted, but that if paid it could not be restored.

We are here dealing with the question of forfeiture of the right of suffrage provided for in the constitution of 1844, and, the language of the constitution, not prescribing the kind of forfeiture which might be remitted, but using the word without any limitation or restriction whatever, it can ‘only be rationally held, I think, to' include forfeiture of the right of suffrage, as well as any other forfeiture flowing from a conviction of crime. That the term forfeiture is not limited to forfeiture of estate is apparent from the authorities. And the decision of the court of errors and appeals, supra,, is clearly an opinion to the effect that the power to remit any forfeiture is expressly conferred upon the court of pardons.

In 26 Corp. Jur. 891, forfeiture is defined, inter alia,, as something lost by the commission of a crime; something paid for the expiation of a crime; that which is forfeited or lost by neglect of duty;. that which is lost, or the right to which is alienated, by a crime. An act of congress imposes forfeiture of citizenship and its rights, as an additional penalty for the crime of desertion. Huber v. Reily, 53 Pa. St. 112. And there is a forfeiture of office. Bergerow v. Parker, 4 Cal. App. 169, 174. The claim of the United States on a forfeited recognizance is a penalty or forfeiture within the Bankruptcy act. 2 Words & Phrases (2d, series) 418. A forfeiture means the loss of something as a penalty for doing or omitting to do some certain required act. Hudson v. Shepard, 90 Ill. App. 626, 628. Forfeiture, inter alia, is the loss of office, the loss of a corporate franchise or charter, the loss of the right to life as a consequence of commission of some crime to which the law has affixed a capital penalty. Bl. Law Dic. (2d Ed.) 512. And our Criminal Procedure act (Oomp. Stat. p. 1828 § 24) prescribes procedure with reference to forfeited recognizances of bail. All these authorities go to' show that the word forfeiture has a broad and general significance, comprehending many things, and is not restricted to forfeiture of money, goods and other property.

I am not unmindful of the view expressed by the late -Attorney-General Wilson in an opinion to the court of pardons, April 23d, 1912, in which he said that “the question presented for determination is whether or not this [parole] act by its terms delegates to a body other than the court of pardons [so called] some part of the pardoning power vested in it by the constitution of this state. If such a result is reached by the operation of the act it would, of course, contravene the organic law,” which opinion he concluded as follows: “If there be a forfeiture in consequence of a criminal conviction, that is to say, if a prisoner has been convicted of one of the crimes, which at the time of the adoption of the constitution of 184-4 deprived him of the right of being a witness, such a person convicted of one of those enumerated crimes may not exercise the right of suffrage unless sncli right is restored to him by a pardon or by some remedial statute.”

Now, it will be observed that no question was submitted to Mr. Wilson as to how a forfeiture of the right of suffrage could be relieved against, and the Parole act did not attempt to deal with it. It is apparent that the learned attorney-general, in observing that such right might only be restored by a pardon or by some remedial statute, was drawing upon his knowledge of the former custom of such restorations being assumed to be made by act of the legislature, and that he did not rest his view upon an examination of the authorities upon that question, which, had he done so, he wonld have found to be against the proposition stated by him in his opinion.

As the legislature cannot impair the jurisdiction of a constitutional court either by depriving it of its power or creating a co-ordinate authority to employ it (In re Thompson (Court of Chancery), 85 N. J. Eq. 221; citing Flanigan v. Guggenheim Smelting Co. (Court of Errors and Appeals), 62 N. J. Law 647), so, equally, the legislature, in the absence of clearly expressed devolvement of power by the constitution, and there is none such, cannot appropriate or in anywise impair the exercise by the court of pardons of any of the powers and prerogatives vested in it by the organic law.

■ Upon principle and authority, therefore, I am clearly of opinion that the language in article 2, paragraph 1, “restored by law to the right of suffrage,” read in conjunction with article 5, paragraph 10, that the governor (and other officers associated with him) “may remit fines and forfeitures,” means that the forfeiture of the right of being an elector by reason of conviction of crime, may be remitted by the court of pardons, and that the remission operates as the restoration of the convict to the right of suffrage, dissociated from the granting of a full pardon to accomplish that purpose, and that this right is in nowise shared by the legislature, who cannot, constitutionally, either grant a pardon or restore to citizenship by remitting a penalty, because it cannot exercise any of the prerogatives of the pardoning power.

We come now to a consideration of the parole law and its effect upon the court of pardons, some review of the history of which will be more or less instructive. Of course, the parole law cannot affect the constitutional power of the court of pardons, but, as will -hereafter appear, as a parole is not a pardon, the parole power can be and has been bestowed upon another authority. The court of pardons, too, has been by statute authorized to exercise it; but 'without statutory authority, it has the power, in effect, to grant a parole by bestowing upon a convict a limited pardon — one with such conditions annexed as would make it a virtual parole according to common understanding.

The first statute granting parole and providing for the procedure thereon is contained in the Criminal Procedure act (Revision of 1898). Comp. Stat. p. 1S77 § 171. It provided that the principal keeper and board of inspectors of the New Jersey state prison should have the power to establish rules and regulations under which any prisoner who was then or might thereafter be imprisoned under a sentence other than for murder in ‘ the first or second degree, manslaughter, sodomy, rape, arson, burglary or robbery,' who had not been previously convicted, might be allowed to go on parole outside of prison, but to remain while on parole in the legal custody of the principal keeper and board. And by section 173 it was provided that it should be lawful for the court of pardons to grant any convict then or thereafter undergoing imprisonment in any of the penal institutions of the state a license to he at large, upon certain terms, &c. The next act dealing with the question was a supplement to the Criminal Procedure act. P. L. 1911 p. 856. This latter act for the first time provided for maximum and minimum terms of imprisonment, and provided in section 6 that the board of inspectors should have power to establish, with the consent of the governor, needful rules for the purpose of determining the fitness to be at large of any prisoner, and in section 8, that upon the expiration of the minimum term of such prisoners as were deemed to be fit to be at large, the governor or person administering the government approving, and not otherwise, their confinement in the prison should be suspended and they should be set at large on parole, provided that no prisoner penalized with a fine should be set at large until the fine has been paid or remitted by the court of pardons, &c. This act contained an express provision that it should not be construed to repeal any statute relating to parole of prisoners by the court of pardons. And this court propounded to the Honorable Edmund Wilson, then attorney-general, the question whether this statute of 1.911 {F. L. p. 856) was constitutional. The question presented for determination being, Whether or not by its terms the act delegated to a body other than the court of pardons some part of the pardoning power vested in it by the constitution. The learned attorney-general answered, by an opinion in writing, April 23d, 1912, su-pra, that if such a result were reached by the operation of the act it would, of course, contravene the organic law, and among other things said: “In my opinion, the granting of a pardon and the allowance of a parole are wholly dissimilar, both in theory and operation. A pardon releases the offender from the entire punishment for 1ns olfense, and from all the disabilities consequent upon his conviction. * * * Does a parole such as we are considering have the same sweeping and remedial effect? Does it, after all, in its portent and scope, present those essential features which are characteristic of a pardon? Reference to the act in question will disclose that the parole may be granted by the board of inspectors, the governor approving, and the issuance of the parole is made to depend upon the sound discretion [exercised within the limitations of the act] of the board of inspectors and chief executive of the state. When granted it is certain that the prisoner is still in the legal custody and under the control of the state. It is designed primarily for the benefit of the prisoner. The parole may be revoked for cause, and the prisoner, while at large, is always under the surveillance by the officers of the state. If convicted of another crime during the period of parole, the original sentence must, under terms prescribed in the statute, be served by the prisoner. These ■ and other provisions of the statute, it seems to me, indicate that the prisoner thus liberated is not in the enjoyment of a pardon, but remains, under the surveillance, care and constructive custody of the state against which he has offended. It is not even, in my opinion, a conditional pardon. It is a mere prison regulation designed, as I have already said, for the benefit of the offender. The granting of such a parole, I conclude, therefore, is not an exercise of the pardoning power referred to in the constitutional provision above quoted, and, accordingly, the statute under consideration is without vice in so far as it does not involve an attempted delegation of the pardoning power to a body other than the court of pardons.” Citing, in support of his opinion, the following authorities: Ex parte Garland, supra; United States v. Wilson, 7 Peters 150; 1 Bish. Cr. L. (6th Ed) § 91k; State, ex rel. Attorney-General, v. Peters, 43 Ohio 629; George v. Lillard (Court of Appeals of Kentucky), 51 S. W. Rep. 793; People v. Adams, 176 N. Y. 351; People v. Madden, 105 N. Y. Supp. 354 State v. Duff (Supreme Court of Iowa, 1909), 122 N. W. Rep. 829; Miller v. State, 149 Ind. 608; Murphy v. Commonwealth, 172 Mass. 264; George v. People, 167 Ill. 447.

In re Marlow, 75 N. J. Law 400, Mr. Justice Swayze, speaking for the supreme court, observed (at p. bOb), that the judicial power is exercised by a sentence; that the shortening of the term or change of the place of imprisonment may be left to the managers, and that court saw no constitutional objection on the ground that it interfered with judicial power. Nor did the court think that termination of the sentence by the managers of the state reformatory under the act (P. Lj. 1901 p. 231), interferes with the prerogatives to grant pardons ; that a discharge from imprisonment is not the equivalent of a pardon.

The next act on the subject of parole is P. L. 191b p. b29, which is an amendment to the Criminal Procedure act,, and provides for a maximum and minimum term of imprisonment, and that the prisoners whose terms are about to expire shall be allowed to appear in person before the board of inspectors, or a committee thereof, who shall seek to determine their fitness to be at large, and making certain regulations as to parole, &c.; making further provisions that prisoners penalized with a line shall not be set at large until fine paid or remitted by the court of pardons, &c.

The next act concerning parole is to he found in the act concerning charitable, correctional, reformatory and penal institutions (P. A. 1918 p. 3b3, 35b; amended, as to its title and certain provisions, P. L. 1919 p. 222, but not affecting the subject under discussion). (This act (P. L. 1918 p. 35b) concerning parole provides that the several boards of managers of the correctional institutions classified in the act shall have power to release upon parole such inmates of their respective institutions as they may determine to be eligible therefor, except a person sentenced to death; that the said board shall prescribe by rules the procedure for the granting of parole and the terms and conditions incident thereto; that the legal custody of all prisoners released upon parole shall be vested in the chief executive officer of the institution from which such prisoner is paroled, continuously until filial discharge; that no person committed upon a sentence prescribing a definite minimum term shall be released upon parole by the board of managers until the expiration of such minimum, less any earned commutation thereof, and that a life sentence shall be taken to have a minimum of fifteen years; that in cases of coincident sentences for more than one crime the sentences shall be regarded as consecutive and the total of the minimum periods shall be regarded as determining the minimum term of imprisonment. Another provision was for the revoking of paroles for cause. This act was further amended in 1923 (P. L. p. 256), not, however, changing, but re-enacting, the provisions concerning parole. It, however, contains a provision authorizing the trial court, within six months after judgment, to grant a new trial or resentence the defendant, admitting him to bail pending such new trial or resentence. It also re-enacted the provision that a life sentence shall be taken to have a minimum of fifteen years, thus amending P. L. 1922 p. 96, which made a life sentence what in terms, it was, namely, a sentence for life, by amending the Criminal Procedure act (amendment of 1914, P. L. p. 429) by leaving out the provision making a life sentence have a minimum term of fifteen years. And, therefore, the .minimum of fifteen years is again the law of life sentences. The changing of this by abolishing the minimum, and thus again making life imprisonment what its terms imply' — that is, imprisonment for life, leaving the matter of reducing it to the court of pardons by way of commutation, is a matter of public policy for legislative consideration.

My excuse for writing at such great length is a desire to thoroughly exhaust the subject and deliver an opinion that may be of some value as a work of reference on the subjects treated.


author: Buchaa'Aa, Y. C.

text:
    William Gaub, complainant, v. M. Jonas Mosher, defendant.
    [Decided June 3d, 1925.]
    Sale of Goods — Motor Vehicle — Statute Requiring Bill of Sale— Specific Performance — Defendant Sold Car Promising to Deliver Bill of Sale, Vendee Sold Car to Complainant Who Before Purchase Inquired of Defendant About Bill of Sale, Defendant’s Husband, Promising That it Would be Delivered Upon Defendant’s Return Home — Defendant Afterward Changed Her Mind, Refusing to Deliver Bill of Sale — Statute Requiring Bill of Sale Invoked by Her, Claiming That There Had Been No Sale Without Delivery of Bill) — Statute Does Not Say Such a Sale is Void, But Unlawful — Specific Performance to Deliver Bill of Sale Will be in Aid of, and Not in Violation of the Statute.
    On final hearing.

      Mr. George L. Feast er, for the complainant.

      Mr. William, F. Vosseler, for the defendant.
   Buchaa'Aa, Y. C.

The facts as proven by the evidence are that defendant, Mrs. Mosher, was the owner of a certain Flint touring car, which she sold to one Sharp, an agent or dealer in cars of that make, in part payment for a new sedan. Delivery was made and title passed to Sharp, but the original bill of sale was in defendant’s safe deposit box and was not contemporaneously assigned or delivered, defendant promising Sharp she would get it out in a few days and deliver it to him. Sharp thereupon sold the car to complainant, telling him these facts. Complainant before paying for the car went to see defendant, to ask about the condition of the car and the bill of sale. Defendant was not at home, but her husband told complainant about the condition of the car, and that the bill of sale would be duly delivered in a few dajrs as soon as his wife had an opportunity to go to the bank and get it from, the safe deposit box. Complainant thereupon paid his money to Sharp. Defendant has never delivered the bill of sale to Sharp, refusing to do so because Sharp became immediately involved in financial difficulties, and defendant’s new sedan was not received by her.

Complainant seeks a decree for specific performance of the agreement by defendant to assign and deliver the bill of sale, and for injunction against the prosecution of a suit in replevin commenced by defendant against him for the recovery of the ear.

It would seem that this is a case for equitable relief. The bill of sale is of no money value in itself; damages at law would, obviously, be inadequate. Without the bill of sale complainant cannot obtain a license so that he can operate the car in this state, and cannot sell it, because of the statute. P. L. 1919 cli. 168 p. 357. It was the duty of the defendant to assign and deliver the bill of sale to Sharp on the sale of the car to him, both by reason of the statute and by reason of her express promise so to do. Under the circumstances, on the sale to complainant by Sharp, the latter’s right to enforce the performance of that duty passed in equity to complainant, and complainant is entitled to decree that defendant assign and deliver to Sharp, pursuant to the terms of the statute, the bill of sale.

Doubtless, Sharp would have been a proper party to the suit, but it does not seem that he is a necessary party, any more than the original vendee would be in a suit by vendee’s assignee against vendor, for the specific performance of a contract for the sale of real estate. There is nothing to show that anjr relief is requested as against him; presumably he is entirely willing and ready to assign and deliver the bill of sale to complainant immediately upon receiving it from defendant.

It follows that complainant is also entitled to injunction against the further prosecution of the replevin suit.

Defendant’s contention is that the sale by her to Sharp and the sale by Sharp to complainant are both void, and no title passed to Sharp or complainant; and that the sales being void and unlawful, neither Sharp nor complainant can have any rights to the enforcement of any part of the transaction ; all this under the terms of the statute referred to, and citing the opinion of the supreme court in Arotzky v. Kropnitzky, 98 N. J. Law 344.

The statute, however, does not say that a sale without compliance with its terms shall be void. On the contrary, by implication, it negatives such a contention. It makes such a sale and purchase unlawful, and provides penalties for violations. Unless such a sale and purchase are made, there is no violation of its terms.

This would seem to be the view taken by the supreme court in Stein v. Scarpa, 96 N. J. Law 86, where a purchase and sale of a motor car with a substituted manufacturer’s number had been made in contravention of section 3 of the statute. The court found that both parties had acted innocently, and sustained Lhe purchaser’s claim of right to rescind and recover back the purchase price. If the sale were void, there could be no rescission.

It is true that the language of the opinion in the Aroizky Case, supra, includes the statement that “the act * * * voids a sale made- without compliance with its provisions,” but the further clause is added “much as the common law refuses to recognize a sale of land without the delivery of a deed.” And the opinion goes on to say that “if the courts should-undertake to enforce contracts made in such violation [of the terms of the statute] they would be aiding therein and encouraging the very mischief the act was designed to prevent.”

The opinion must be read in the light of the facts. There had been a sale without assignment of the bill of sale, and vendor was suing to obtain payment of a cheek given for part of the purchase price. Evidently neither party was innocent, and neither could expect aid from the courts. What was meant was that the sale was void in the sense that it would not be enforced; that neither party could obtain enforcement of any right arising out of such an unlawful transaction.The situation was very different from that in the present case and in the Stein Case, supra. That the Siein Case was not meant to be overruled is evident from the fact that no mention is made of it, although one of the justices sat in both cases.

In the present case there was no attempt or intent to violate the statute. The contract between the defendant and Sharp provided for the assignment and delivery of the bill of sale; so, likewise, the contract between Sharp and complainant, at least, impliedly. There was the expectation and intent of all parties to comply with the statute. The violation is the act of defendant, who subsequently changed her mind and refused to assign and deliver the bill of sale. The decree, for performance is not in aid of a violation of the statute, but in aid of avoiding a violation thereof.


author: Buciiayay, Y. C.

text:
    Edward T. McGalliard, complainant, v. James H. Chapman et al., defendants.
    [Decided June 3d, 1925.]
    Conveyances — Restrictive Covenants — Restriction Against Building Within Prescribed Distances From Street — Defendant Erected Frame For a Tent-Like Structure With Roof, Covering Being Canvas — Held, to be a Building Within Meaning of the Word — Comiplainant Not in Laches, Having Promptly Notified Defendant-Alleged Violations, Including Erection of Bill Board and the Temporary Lease of Property For Structure Such as the One Complained of, Not Such Violations as Would Defeat the Community Scheme of Improvement.
    On final hearing.

      Mr. Alvin W. Sykes, for the complainant.

      Air. Amos M. Wain, for the defendants.
   Buciiayay, Y. C.

Complainant sues to enforce by injunction a restrictive covenant comprised in a deed of conveyance from complainant to defendant for lot No. 40 on complainant’s development tract. This lot is at the corner of South Broad street and a proposed street to he called Woodside avenue, and fronts fifty-five feet on Broad street with a depth of some one hundred and fifty feet.

The covenant in the deed is against the erection of “any dwelling-house or other building or any part thereof excepting a porch as a part of a dwelling-house, within fifty feet of the northerly side of Broad street and within fifteen feet of the easterly side of said proposed Woodside avenue.”

There are other covenants against a gasoline or oil-filling station, or a garage (except a private garage), or a manufacturing plant on the lot, and one against conveyance to or occupation by negroes.

The violation complained of is a structure, erected within the prohibited area, about thirty-two feet long by eight feet wide, consisting of four poles along each side, six inches in diameter, eight feet high, set six inches in the ground, and a similar line of four poles slightly higher along the centre line. . The-outer lines of poles are connected by stringers at the top, and along the centre line is a ridge pole; rafters run between stringers and ridge pole, and a few boards are laid on these rafters to prevent the sagging of a canvas re-movable covering. The sides are not enclosed, but a strip of canvas four feet wide is hung on whichever side is the sunny side. The structure is used as a wayside produce stand for the sale of fruit and vegetables.

It is clear that there is no' violation of any covenant unless' it be the one first mentioned, nor does complainant so contend. The only question in this behalf is whether or not the structure comes within the proscribed category of a “dwelling-house or other building or any part thereof, excepting a porch as part of a dwelling-house.”

Defendant argues that not everything which is built is a building; that a fence, a well, a sidewalk, a monument, though commonly spoken of as being built, are not buildings; that a tent is not a building, and is not prohibited by the covenants; that a stand for the vending of produce is not prohibited by the covenants. So fax I concur, but I cannot agree with defendants’ contention that walls and a roof are necessary requisites of a building, or of a structure prohibited by the covenant in question.

A building- is defined by Webster’s New International Dictionary as “that which is built; specifically, as now generally used, a fabric or edifice, framed or constructed, designed to stand more or less permanently, and covering a space of land, for use as a dwelling, storehouse, factory, shelter for beasts or some other useful purpose.”

It seems to me clear that the structure ill question in this suit comes within that definition. It is a structure designed to stand more or less permanently, covers a space of land, and is for use as a shelter for vegetables and fruit.

Whatever might he the situation if this structure had no roof, it does, in fact, have a roof, which, although composed as to the outer covering only of canvas, is reinforced with boards underneath. It may he fastened on so that it may easily and quickly be removed, but there is no evidence that it has been removed. The photographs show it to be quite a substantial thing in the way of a roof, and it is significant that neither by answer or proof was there any allegation that it was a mere temporary structure. It was built in August, 1921-, and from the evidence is still standing in the same condition, and it appears is capable of standing in the same condition for several years at least.

It appears that the restrictive covenant is a covenant adopted by complainant for the benefit of the entire tract, and has been put in the deeds for all lots sold. (The deed for the first lot sold, at the extreme far corner of the tract, did not have a covenant against a gasoline pump, hut that is not material as to the covenant here under consideration.) Under well-settled principles, therefore, the grantor, for the benefit of his remaining lands and for the benefit of his other grantees, is entitled to the enforcement of the covenant, unless that right he lost by reason of other circumstances.'

It is contended by defendant that complainant’s right was lost by delay. The bill was filed about one month after complainant observed the structure in course of erection. But the rule that injunction against the violation of building restriction covenants must be sought promptly rests on the doctrine of equitable estoppel. It is not equitable that complainant should set up and permit defendant to expend large sums without taking steps to warn him and to estop him. Here, however, the evidence is that complainant did warn defendant; that the matter of finishing the roof (which was being constructed when complainant saw it) was only a matter of two or three days (and until the roof was under construction there was no violation), and the whole structure only cost some $77. I think there is no estoppel against complainant here.

It is also contended that the right to enforcement has been lost by reason of other violations.. The evidence shows no situation leading to that result. The gasoline pump at the far end of the tract is not a violation of the covenant in question, and, even if it were, would not, under the circumstances already mentioned, deprive the rest of the tract of the right to enforcement. The billboards erected on some lots do not violate the covenant; they are not buildings. Nor is the fact that complainant permitted a-lessee for one month, a year before, to maintain a similar structure to defendants on the prohibited area, such a violation as to wreck the scheme.

One other argument is made that, under the language of the covenant, the restriction does not apply to any lands except those actually being within fifteen feet of Woodside avenue and within fifty feet of Broad street. I think there is no merit in this. The word "and” is clearly to be construed "or.” Cf. Elizabeth Trust Co. v. Clark, 2 N. J. Adv. R. 1690 (at p. 1693), and cases cited.

Decree will be advised restraining the continuance of the violation.


text:
    Joseph H. Exton, complainant, v. Glen Gardner Water Company, defendant. Elmer W. Slater et al., complainants, v. Glen Gardner Water Company, defendant.
    [Decided June 3d, 1925.]
    Water Rights — Diversion of Water For Purposes of Sale is an Infringement of Rights of a Lower Riparian Owner, and if the Diversion is of Such a Perceptible or Sensible Amount as Not to be Excluded Under the Maxim of “De Minimis,” Complainant is Entitled to Court Protection — The Unlawful Diversion of Four Gallons Per Minute, Which Amount Will Naturally Increase as Time Goes On, Held to be an Amount Not Excluded Under the Maxim, and Complainants Are Entitled to Decree.
    On final hearing.

      Messrs. William G. Gebhardt & Son, for the complainants.

      Mr. George II. Large, for the defendant.
   Buchanan, Y. C.

These two suits, which were tried together, are in all essential respects identical. Each complainant is the owner of a farm or tract of land through which runs, and has always run, a stream called “Spruce Run.” Each has on his respective tract a mill which has been in existence for upwards of fifty years, and each, (with Ms predecessors in title) has used the water of the stream to run the mill and for the agricultural, and domestic purposes of the farm. (The Exton mill has not been operated for several years past, but that is of no materiality.)

Each complainant seeks injunction against the defendant for diminution of the water supply in the stream.

Defendant is a water-supply company, furmshing water to some eighthy customers in the village of Glen Gardner. It obtains its water from two sources of supply, one (called the “East- Eeservoir” or “Barrel Spring”) on the east side and one (called the “West Eeservoir” or “McConnel Spring”) on the west side of Barren brook, which is a tributary of Spruce run. It owns the tracts on which these springs, respectively, are located, and the laud slopes from each spring toward Barren brook.

There is some conflict of testimony, but the weight of the evidence is, and I so find, that prior to .the commencement of the company’s operations in 1893 - the waters of the west spring had flowed as a rivulet down into Barren brook (and thence, of course, to Spruce run and complainant’s lands), but that prior to defendant’s development of the east spring in 1916 there had neve'r been any water- course nor any stream or flow whatever therefrom into Barren brook (except, perhaps, at occasional times of heavy rains). There had never even been an actual spring there, simply a wet or marshy piece of land, the waters of which were absorbed by the earth and air before they reached Barren brook.

• It is clear, therefore, that, as to the waters of this east reservoir or Barrel spring, complainants have not, nor ever had, a right to the flow thereof, and defendant water company does no wrong to complainants by using the flow in such manner as to prevent it reaching Spruce run; while, on the other hand, complainants have a right that the flow of water from the west reservoir, through the natural water course or rivulet into Barren brook and Spruce run, shall not be diverted for purposes of sale to non-riparian owners, except in so far as defendant may have acquired rights by adverse user.

The proofs show, and, indeed, complainants admitted at the hearing, that there had been an adverse user of a portion of the west reservoir waters ever since 1893. The proofs are, perhaps, not as exact as to quantity as could be desired, but, I think, they fairly show a user of enough to supply forty customers at ninety gallons each per day, or three thousand six hundred gallons per day. At present defendant has eighty customers and uses from seven thousand to eight thousand gallons per day, which is twice the amount for which it has the right by adverse user. Defendant is a public water company, and the town which it serves is growing so that the use may be constantly expected to increase.

Defendant contends that the proofs show that no substantial damage has been caused complainants, and that, hence, no injunction should be awarded. It is true that the damage is not shown to be substantial. The testimony of the engineer, Davis (not contradicted), was that the flow from the east reservoir, assuming that none was wasted by evaporation or absorption, would amount to only one-thousandth of a horse power at complainants’ mills. Computation which I have made from the figures in evidence shows the flow of the east reservoir to about fifteen thousand gallons per day, so that the wrongful diversion of some four thousand gallons per day from the west reservoir would mean only about one three-thousandths of a horse power difference to complainants’ mills.

The conclusion that no injunction should be awarded, however, is not supported by the authorities. Defendant cites Higgins v. Flemington Water Co., 36 N. J. Eq. 538, and-Paterson v. East Jersey Water Co., 74 N. J. Eq. 49. The Higgins Case does not hold as defendant contends, as is pointed out in the Paterson Case; and the latter case (which was unanimously affirmed on the opinion below, 77 X. J. Eq. 588), determines just the opposite. Vice-Chancellor Emery there says (at p. 86), that the diversion of the water by the defendant for purposes of sale is an infringement of the complainant’s right as a lower riparian owner to the continued flow of the stream, and that, without proof of any actual or perceptible damage, so far as the establishment of the legal right'is concerned, if the diversion is of such a perceptible and sensible amount as not to be excluded under the maxim “de minimis ’’ complainant is entitled to resort to this court for protection.

The unlawful diversion here amounts at present to about four gallons a minute, which I take to be “such a perceptible and sensible amount as not to be excluded under the maxim ‘de minimis,’ ” and will, naturally, increase as time goes on.

I conclude, therefore, that complainants are entitled to decree establishing their right and for injunction against the diversion of water in excess of the amount to which defendant has obtained the adverse right. The terms of the decree, as to the form of the injunction and the time when and conditions under which it shall take effect (in view of the fact that defendant is a public water company, and the public interest is involved), may be settled on notice.