author: Per Curiam.

text:
    Charles T. McMullin, administrator, et al., respondents, v. Sarah N. Doughty, appellant.
    [Argued March 7th, 1905.
    Decided June 19th, 1905.]
    1. The provisions of section 91 of the Chancery act of 1902 confer on the chancellor discretionary power to make an allowance to the counsel of a successful complainant, to be included in the taxed costs, in certain cases.
    2. Although there is included in that act no provision for similar allowances to successful defendants, the provisions of section 91 are not thereby rendered obnoxious to any provision of the constitution of the United States or of this state.
    3. The practice as to such allowances in cases tried before vice-chancellors indicated.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Grejr, who filed the following memorandum:

      This cause, after a litigation extending over more than three years, is about coming to a conclusion. All the matters in dispute appear to have been presented and decided except the allowance of a counsel fee. The complainant moves for the allowance of such a fee. It is opposed by counsel for the defendant on several grounds. Argument has been twice heard on the question.
    The suit is for the partition of about thirteen thousand acres of land lying in Atlantic county, consisting of one main tract and a number of smaller ones. The complainant is the owner of one undivided fifth and the defendant of four undivided fifths. Actual partition was sought by the complainant. No question has been raised in the cause disputing the complainant’s interest, in either quantity or quality, nor has the defendant in anj1- way denied the necessity and propriety of an actual partition.
    The defendant’s resistance to the allowance of a fee in this partition suit to the counsel for the complainant, is, that the suit was litigated, that the defendant had employed her own counsel, and that the complainant’s counsel had not in the conduct of the suit done anything which was beneficial to the defendant.
    The object of the suit was, as stated, the obtaining of an actual partition of a large landed estate. The proceedings necessary to bring this result were conducted by the complainant’s solicitor. The management of the cause was burdened with the difficulties which attend upon an effort to state, with precise description, the boundaries of extensive tracts of wildland which had been acquired over a long period of time, from various sources, by inexact conveyancing, and to some extent without recording deeds. The muniments of the title to these lands were largely, if not entirely, in the hands of the defendant who was in possession of the family mansion. Her attitude in this cause to the complainant was extremely hostile, and gave rise to many contentions. These disputes did not relate to any differences touching the main object of the suit, the securing to each party an estate in severalty by an actual partition in proportion to her holding. There was no litigation on this point. The accomplishment of this result was all important to the defendant— more valuable to her than to the complainant — for the reason that the defendant had an interest four times that of the complainant, the value of which was most unfavorably affected by the fact that it was held in common with the complainant, with whom the defendant was upon terms of hostility. The benefits to be derived from the steps taken by the complainant looking to the obtaining of an actual partition to be made, were accepted all through the proceedings by the defendant.
    The real point of contention between the parties was at all times the effort of each to obtain the largest possible allowance for her share, and in the most favorable location, and not a disputation concerning the main object of the suit — the obtaining for each of an estate in severalty. On this last-named phase of the case the defendant’s counsel rendered no service. What was done was done by complainant’s counsel, and the defendant accepted the benefit of it, save in the one incident which I will presently notice.
    As the cause proceeded it was disclosed by both parties that the extent of the lands was so great, and the documentary evidences of title in such a confused condition, that accuracy of description was almost impossible. The difficulties of the procedure became so great as to threaten the efficiency of the partition. At this point, at the invitation of this court, an agreement upon a description of the lands was made, and on this the first order for partition was sent to the commissioners. They heard the parties, who each sharply contended for her full share. The report when it came in, was challenged by the defendant because of alleged misconduct of the commissioners, collusion with the complainant to the defendant’s disadvantage, and unfairness and partiality in the division of the estate. All of these objections were overruled (see McMullin v. Doughty, 62 N. J. Eq. (17 Dick.) 252), and this disposition of them was affirmed on .appeal.
    After the objections taken had been heard and overruled it was for the first time discovered that in the first return of the commissioners there had been set off and valued to the defendant as part of her share several large tracts of land which did not belong to the estate, and which, if the defendant had been compelled to accept them, would have done her a great wrong. The inclusion of these outside tracts and their setting off to the defendant as part of her share was a mistake, in which the defendant and her counsel participated up to the point that it was made part of the commissioners’ first report. No objections were made to that report on that ground. McMullin v. Doughty, supra,. The mistake was discovered after the argument on the objections to that report had been heard, and it was corrected immediately, with the assent of the complainant. There was no fraud or contrivance about it. But as it was a serious injury to the defendant, the matter was sent back to the commissioners, and they were ordered to make a new division, correcting the error. This they have done by their second return, which is not disputed by either party.
    The happening of this error is, however, a ground which, while it should not deprive the complainant’s counsel of all right to a counsel fee, should, I think, affect the amount which should be allowed him for his services.
    The estate in' this case is large and valuable. The difficulties of division have been considerable. The fee should recognize the amount of labor required in the conduct of the suit. The error above referred to was participated in by both parties, but it was the duty of the complainant’s counsel to have detected it as he was conducting the suit. His omission to do so has delayed the cause and made necessary another return by the commissioners. In this one incident of the direct proceedings to the creation of an estate in severalty the complainant’s counsel was at fault, and his omission was disadvantageous to the defendant. In substantially all the other steps in the cause she received four-fifths benefit, while the complainant got but one-fifth. I am not willing, under these circumstances, to allow such counsel fee as the value and importance of the estate divided would otherwise have justified.
    Some question-has been raised as to the practice in allowing a counsel fee to the solicitor of the complainant out of the whole estate in cases where the defendant is represented by counsel. The decision of the chancellor in the recent case of Eellar v. Kellar (not reported) is cited where he refused to allow a counsel fee to the complainant’s counsel in a partition suit in which the defendant had employed counsel and the case had been litigated.
    That decision was made before the Chancery act of 1902, section 91, provided that it should be lawful to include in the complainant’s costs a counsel fee, tó be fixed by the chancellor on final decree.
    The chancellor, since the passage of the act of 1902, has indicated that the practice should recognize tire change made by that statute, and. that in cases in which the complainant is equitably entitled to a decree for costs, the vice-chancellor to whom the cause has been referred should hear the parties on the question of the allowance of a counsel fee to the complainant, and in advising the final decree should report to the chancellor what is a reasonable fee to be allowed. If either party is dissatisfied with the vice-chancellor’s allowance, he may, on notice to the other party, apply to the chancellor to fix a proper sum.
    The circumstances of this case entitle the complainant to a decree for costs, and the allowance of a counsel fee of $400 to the complainant, to'be taxed with his costs, will be advised.
    Chancellor Magie filed the following supplemental memorandum :
    Vice-Chancellor Grey, to whom this cause was referred, has advised a decree therein containing a blank space for the amount of an allowance to complainant of a counsel fee, to be included in the taxed costs, and has reported to me that $400 is a reasonable sum to be allowed.
    This course has been pursued by him under suggestions made by me to all the vice-chancellors as to the practice under the provisions of section 91 of the Chancery act of 1902.
    By the terms of that section I have concluded that the legislature has intended to confer on the chancellor discretionary power to make certain allowances, to be included in the complainant’s taxed costs, and that it is my duty to consider the application for the exercise of that power. In respect to causes heard by vice-chancellors, I think the application should be primarily made to the vice-chancellor, and that he should report whether an]' allowance should be made, and what would be a reasonable sum to allow. In order to preserve uniformity in the exercise of such discretion as is conferred on the chancellor, the parties will be heard by me, if desired, in respect to the allowance reported.
    In this case the parties have been heard and defendant’s counsel objects to any allowance.
    The objection is first put on-the ground that the legislation in question is obnoxious to constitutional restrictions, either that of the constitution of the United States forbidding any state to deny to any person in its jurisdiction the equal protection of the laws, or that of our constitution forbidding any general law to include any provision of a private, special or local character, or that forbidding the passage of any private, local or special law granting to any individual any exclusive benefit.
    His contention is that, by section 91, a benefit is conferred on successful complainants in Chancery suits which is not conferred upon successful defendants.
    He supports his contention by numerous cases in the state and federal courts in which legislation conferring power to award allowances to parties in actions against certain corporations, such as railroad companies, or in actions against such corporations for certain tortious acts, has been pronounced invalid.
    But the legislation under consideration is capable of being-distinguished from that dealt with in the cases cited.
    It affects a whole class of litigants, viz., complainants. It does noi distinguish among them by reason of the nature of the action, or the character or conduct of the defendants. Why defendants who might be successful in equitable suits are not included in the benefit of this legislation cannot be considered if complainants in such suits form a proper class'for such legislation. That they are improperly classified by this act does not seem to me to be so clear that a court of primary jurisdiction would be justified in pronouncing the legislation for their benefit wholly invalid.
    It is further contended that the circumstances do not warrant the allowance recommended. My examination of the case and my consideration of the reasons given by Vice-Chancellor Grey satisfy me that the discretionary power conferred on the chancellor should be exercised, and that the amount allowed is not excessive.
    The blank in the advised decree will be filled with the sum reported and the decree signed.

      Mr. Herbert A. Drake, for the appellant.

      Mr. John D. McMullin, for tire respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion of Vice-Chancellor Grey, and in the opinion of the chancellor supplemental thereto, filed in the court below.

For affirmance—The Chief Justice, Garrison, Fort, Garretson, Pitney, Swayze, Bogert, Vredenburgii, Vroom, Green, Gray—11.

For reversal — None.


source: Caselaw Access Project

author: Per Curiam. Dixon, J.

license: Public Domain

text:
    The Borough of East Newark, respondent, v. The Mayor and Aldermen of Jersey City, appellant, and New Jersey Suburban Water Company and New York and New Jersey Water Company, respondents.
    [Argued March 16th and 17th, 1905.
    Decided November 20th, 1905.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 67 N. J. Eq. m&.

      Mr. George L. Record and Mr. Robert Carey, for the appellant.

      Messrs. Collins & Corbin and Mr. Herbert Boggs, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons set forth by Vice-Chancellor Stevens in his opinion filed in the court of chancery.

Dixon, J.

(dissenting).

On July 1st, 1897, Jersey City and the borough of East Newark made an agreement by which the city contracted to furnish to the borough a supply of water for the term of five years, at the price of $90 per million gallons. The city was then receiving-water at the price of $35 per million gallons from the East Jersey Water Company at the junction of Belleville and Kearny avenues, and at once began to supply the borough with water so received. The supply was conveyed to the borough in pipes laid by and wholly belonging to Jersey City. Although the contract by its terms expired on July 1st, 1902, its provisions continued to be acted upon until the filing of the bill of inter-pleader on which the present litigation is founded. The East Jersey Water Company was aware of this contract, but continued the delivery of the water to- Jersey City at the place and on the terms above stated at least until July 7th, 1903. After that date the East Jersey Water Company, or its assigns, the New Jersey Suburban Water Company and the New York and New Jersey Water Company, delivered water in the same way, at the same point, until the filing of the bill of interpleader, claiming, however, that because of certain notices given to the borough and the city such delivery was not made to the city, but that the water was transmitted through the city pipes to the »borough, and there delivered by the Suburban company directly to the borough.

The bill of interpleader was filed by the borough in November, 1903, and set forth that from the making of the contract, in 1897, until the filing of the bill, the borough had received its supply of water from the city and was ready to pay the city therefor, but that the Suburban company claimed a right to payment, at $90 per million gallons, for all water received by the borough after the giving of a notice, dated July 8th, 1903, to the effect that the water was the property of that'company, and would no longer be supplied to Jersey City. The borough therefore prayed that the Suburban company and the city might be required to have their conflicting claims determined in the court of chancery.

On this bill the rival claimants were brought in and submitted to the jurisdiction of the court, which, after hearing, decreed that the fund paid into court by the borough belonged to the Suburban company, subject to compensation to the city, thereafter to be ascertained, for the use of the pipes. From this decree the city appeals.

I think the decree is wrong.

Neither the Suburban company nor its assignor, the East Jersey Company, had any contract with the borough to supply it with water. There was an agreement, dated July 29th, 1895, between the East Jersey company and the township of Kearny, wherein the territory now composing- the borough of East ■Newark was then embraced, under which that company was to supply the township with water for fifteen years; but that agreement contemplated that the township would lay a main to receive the supply, which was never done, and the agreement never went into operation. No right of any sort was ever acquired against the borough by reason of that contract.

The right of the water companies to deliver water into the pipe belonging to Jersey City at the junction of Belleville and Kearny avenues arose wholly out of the bargain between the city and the East Jersey company, which provided that the company should there make such delivery to the city. This right was conceded by the city and accepted by the company for the benefit of them both, and the pipe was so used from the making of the bargain until July 7th, 1903, at least. After that date no other right to use the pipe was granted by the city to anyone, and the use actually made by the company and its assignees was precisely the same as before.

These'facts bring into play a principle of justice which I deem incontrovertible — that one who acquires from another the right to use the latter’s property in a specified manner for the benefit of the owner cannot maintain a right to use it in the same manner for his own exclusive benefit. This principle permeates the administration of equity in all its forms, and on the strength of it the court should have determined that, without regard to the legal obligation of the companies to deliver water to the city for the supply of the borough or their right to stop such delivery, they could not be permitted, so long as they delivered water into the city’s pipe for the supply of the borough, to deny that the delivery was in pursuance of their only right to do so. They should not,have been allowed to maintain a claim injurious to the city on the basis of a sheer usurpation against the city.

But the usurpation did not stop with the pipe. The decree supported the claim of the water company to appropriate to itself the benefit of the price contracted for between the city and the borough. The company set up no contract binding the borough to pay it that price; it produced no evidence (except the agreement between the city and borough) as to the value of water delivered at the borough, and yet it is decreed to be entitled to $90 per million gallons, subject only to the compensation of the city for the use of the pipe. If the usurpation, of the pipe was maintained, then the inquiry should have been, what, in the absence of a contract price between the borough and the company, was the real value of the water delivered to the borough ? If the value was ascertained to' be less than the price paid into court by the borough as due from it to the city, then the difference should have been awarded to the city, beside compensation for the use of the pipe. If, however, the value was ascertained to be equal to the price, then, oit the evidence presented in the case, the reasoning must, I think, have followed these lines: In its natural position the water had little value; when brought to the junction of Belleville and Kearny avenues it had acquired ,.a value of $35 per million gallons, this being the price at which the company had supplied it to Jersey City at that place for many years, and there being no other evidence of value; when it reached the point of supply to the borough its value had become $90 per million gallons, the price bargained between the city and borough being the sole evidence which the case affords on that subject; the difference in value between the water in its natural position and the water at the junction of the avenues can have no just basis except the cost of transportation and a reasonable profit thereon; and the same thing is true with regard to the difference in value accruing between the junction of the avenues and the point of delivery to the borough; but between the points last named the water was transported by the appliances belonging to Jersey City, and there existed no other means for such transportation; to the city, therefore, belonged the cost of that transfer and a reasonable profit thereon, namely, the difference between $35 and $90 per million gallons. A consideration of the cost of laying and maintaining the city’s pipe, its probable durability and the uncertainty as to the period for which its use might be required, leads me to the conclusion, that compensation made to the city on that footing would not he excessive.

So that, whether the water companjr be precluded from denying that it delivered the water at the junction of the avenues to Jersey Citjr, which is, in my opinion, the basis on which the decree should rest, or the city be deemed entitled to compensation for the use of the pipe, the court should have awarded the fund to the city.

The case may be viewed in another aspect.

When the water company notified the borough of its intention to deliver water directly to the borough through the pipes of the city, it gave Jersey City like notice, and the city replied that it would not consent thereto, but insisted on a delivery to the city at the junction of the avenues.

The pipes from that junction to the borough were the private property of the city and were the only medium in existence for the delivery of a supply of water to the borough. 'Unless we assume that the engagements between the city and the borough, on one hand, and between the city and the water company, on the other, imposed on the city the obligation to have water passed through its pipes pursuant to those engagements, the city owed no duty whatever to either the borough or the company to permit its pipes to be used for any purpose. The city’s reply ■to the notice of the company was in effect that the company could continue t[re use of the pipes only on the terms stated in those engagements. If at that time the company had appealed to the chancellor to fix some other terms for such use, must he not have answered: “If you have no power of eminent domain, you cannot use the city’s private property, except on the terms prescribed to you by the city.' If you have the power of eminent domain, you must exercise it according to the statute and under the constitutional prohibition that private corporations shall not be authorized to take private property' for public use withoiit just compensation firsi made to the owners. Until you have thus exercised the power and made due compensation, you cannot be authorized to use the city’s pipes except on the city’s terms.”

I do not perceive how such an answer could have been avoided, nor how the company’s position can be bettered by the fact that it chose to usurp the property first and appeal to the chancellor afterwards.

I think the decree should be reversed.

For affirmance—The Chief-Justice, Fort, Gareetson, Pitney, Swayze, Bogeet, Vredenburgh, Vroom, Green, Gray—10.

For reversal—Dixon, Garrison—2.


text:
    Joseph P. Richardson, administrator, &c., respondent, v. Hugh Hatch, appellant.
    [Submitted March 27th, 1905.
    Decided June 19th, 1905.]
    1. A rehearing will not be ordered unless some special reason therefor be shown other than the desire of the defeated party to try the cause over again.
    2. If the application is also for leave to present additional testimony, it must be shown that the testimony sought to be introduced is newly-discovered evidence, not accessible to the petitioner at the time of hearing, and which will probably affect the mind of the court to change the decree.
    On appeal from a decree in chancery advised by Vice-Chancellor Grey, who filed the following opinion:
    This is a motion to open the final decree in this case and allow the defendant, Hugh Hatch, against whom it was pronounced, to offer new testimony, and for a rehearing of the cause with such additional testimony under consideration.
    The bill of complaint was filed by Joseph P. Richardson, the administrator with the will annexed of' Joseph Hatch, a deceased partner, against Hugh Hatch, the surviving partner of the late firm of Hatch & Brother, and seeks a discovery and accounting regarding the partnership business. By consent an order of reference was, on June 10th, 1902, made to a special master to take and state an account of all the partnership transactions, &c., and to report the amount, if any, due the complainant, &c. The master reported on June 16th, 1903, stating' an account, with testimony in support thereof accompanying his report, showing that there was due the complainant from the defendant the sum of $6,156.53.
    • On June 23d, 1903, the defendant filed exceptions to the master’s report, which were heard upon full argument on October 5th, 1903, and were dismissed by a decree dated October 9th, 1903, which followed an opinion fully stating the grounds for that decree.
    An appeal was taken from this decree on November 15th, 1903. The appellant, Hugh Hatch, at November Term, 1904, moved the court of appeals for the dismissal of his appeal (without prejudice to the taking of a second appeal) in order that he might apply to this court for a rehearing of the cause, which motion was granted upon terms that the appellant should file a bond securing the pa}unent of the decree from which he had appealed, without prejudice, &c., if this court allows such rehearing.
    The record was then remitted to this court and the defendant, Hugh Hatch, now files his petition in this court stating several grounds which he alleges entitle him to relief.
    These grounds are: ' ,

      First. That the health of his counsel, David J. Pancoast, esquire, was seriously impaired while the suit was in progress, and that he, through inadvertence or forgetfulness, neglected -to produce 'before the master evidence essential to the determination of the cause on its merits.

      Second. That the defendant desires 'to present evidence to “rebut the presumption of law” that because of a certain entry in the firm’s books the accounts of the partners were settled at a certain date. This' evidence, as stated in the petition, tends to show that the defendant was unacquainted with that entry, and that it was made by the decedent, Joseph Hatch.

      Third. That he also desires to prove that a farm, the occupancy of which, rent free, by the defendant, Hugh Hatch, was in the testimony referred to as counterbalancing the moneys which the decedent, Joseph Hatch, had received from the firm, did not belong to the partnership or to Joseph, but to Mary L. Hatch, mother of Hugh and of Joseph, and that Hugh’s use thereof was not profitable to him, &e.
    On these grounds the defendant prays that this court will grant him a rehearing of this cause.
    The complainant resists the defendant’s application, insisting that no sufficient reasons have been exhibited to this court to justify reopening the cause, and that those set up are not true in fact.
    It is, I think, indisputable that the party applying for a rehearing must show that the reasons presented for reopening the case are not only sufficient in law, but also true in point of fact. The cause cannot be tried over again because the defeated party would like to have another chance.
    In this case the complainant denies that any of the reasons set up by the petitioner, Hugh Hatch, for reopening this cause are either sufficient or true.
    The first reason presented in support of this motion for a rehearing is that the illness of Judge Pancoast, then the solicitor for the petitioner, Hugh Hatch, caused him to neglect to produce before the master evidence essential to the determination of the cause on its merits.
    Not one of the affidavits presented by the petitioner, Hugh Hatch, supports this claim. All that is shown, is in the affidavit of Hatch himself. He simply swears that he was represented by Judge Pancoast as his counsel;, that he died in October, 1904; that for many months before that time he was in failing health, confined to his house by a serious illness and unable to attend to any business. Nothing is offered to prove tliat between June 9th, 1902 (the date of the order of reference to the' master to state the account), and June 4th, 1903 (when the master’s report was concluded), Judge Pancoast was either sick or unable to attend to business. On the contrary, the master’s report of the taking of the testimony shows that Judge Pancoast attended all the sessions before the master from June 14th, 1902, when they opened, until February 20th, 1903, when Judge Paneoast himself declared on behalf of the petitioner, Hugh Hatch, “We have no testimony to offer and rest our case.”
    This date, February 20th, 1903, was a year and eight months before Judge Pancoast’s death. He appeared and argued the exceptions to the master’s report before me in October, 1903, with all his usual energy and capacity. The claim that Judge Pancoast’s ill health prevented the presentation of material evidence before the master is directly in the teeth of the facts as they appear of record. The case was before the master for eight months, with many sessions and abundant opportunity to make ■ good any omissions.
    No proof is offered to show that any evidence was given to Judge Pancoast, or called to his attention, to present in behalf of the petitioner, Hugh Hatch, which was not submitted to the master.
    So far as this reason for a rehearing of the case is concerned, it is plainly shown to be no reason.
    The second ground set up for a rehearing is that the petitioner, Hugh Hatch, desires to present evidence to rebut the presumption of law that an entry in the books of the firm of Hatch & Brother showed that the accounts of the partners were settled at a certain date. This evidence, the petitioner claims, will show that he was unacquainted with the fact that that entry was made, and that in truth it was entered in the firm’s books by the decedent, Joseph Hatch, of whose estate the complainant in this cause is administrator.
    This'refers to the entry of March 2d, 1885, in the firm’s books, which was put in evidence before the master without objection to its admissibility. This whole matter was before the master in evidence and in his report. It was the subject of the exceptions which were filed to that report, and which were argued before me and decided against the petitioner, Hugh Hatch, in the opinion heretofore delivered.
    The petitioner assumes that the time when the partners settled their accounts was'fixed solely by this entry, but this is not the fact. The entry itself .was of little weight; the most potent evidence was in the proven and undisputed fact that from the date of that entry, March 2d, 1885, Hugh Hatch himself recognized that settlement by drawing thereafter, for a period of ten years, equal sums with J oseph from the partnership. Other proof was offered in support of the date of this settlement. The whole matter was opened, testimony was offered on it, and it was debated, reported on, excepted to, argued and decided.
    As to the matter which the petitioner, Hugh Hatch, wishes to show by the rehearing, that he was unacquainted with this entry of March 2d, 1885, and that it was, in fact, made by the decedent, J oseph Hatch, that is already in the proof made before thé master.
    On page 33 of the printed book of the appeal, showing the testimony of Hugh Hatch before the master, his. attention was called to this entry, and he was asked:
    “Q. When did you first know there was such- an entry in this book?” He replied: “Not until after Joseph’s death.” He repeated this answer as to the corresponding entry in the firm’s book.
    As to the other incident which the petitioner desires to prove on a rehearing, to the effect that the challenged entry was made by Joseph,.the petitioner had his opportunity before the master. When he was under examination the entry was shown him and he was asked by Judge Pancoast (page 33 of the book of appeal) :
    “Q. Whose handwriting is that in, if you know?” He replied: "I don’t know, Judge.”
    No rehearing ought to be based on an effort to prove a matter which has already been under examination, unless the incident is controlling and there-is a showing that newly-discovered evidence will alter the accepted proof.
    As to this incident, there is no claim that anything has been discovered since the proof was taken before the master which could not then have been proven.
    The third reason for a rehearing is the petitioner, Hugh Hatch’s, desire to prove that the farm (the occupancy of which by him for some years was mentioned as a reason for the settlement of March, 1885) did not belong to the firm, but to the mother of Joseph and Hugh, and that the use of the farm was not profitable to Hugh.

      It was not claimed by anyone.that the farm belonged to the partnership. The proof on this point simply went to show that in the family talk and arrangement Hugh’s occupancy of the farm was urged as one of the reasons for his settlement with Joseph on terms favorable to the latter. To. prove that the farm belonged to the mother, or that its use was not profitable to Hugh, would not refute tire fact proven that Hugh’s use of the farm was urged and accepted as a reason for his settlement with Joseph in the family talk.
    None of the matters set up as grounds for a rehearing present any sufficient cause to reopen this ease.
    The claim that the petitioner’s case was neglected or ill-managed before the master is wholly unsupported by any proof. None of the testimony proposed to be offered is shown to be newly-discovered, since the cause was on hearing before the master.
    The subject-matter which is to be dealt with in the proposed testimony was all of it under examination before the master for months, was clearly within the scope of the matters which were the subject of dispute between the parties in the taking of the evidence, and which were passed upon in tire opinion pronounced on overruling the exceptions to the master’s report. The cause has been fully and fairly heard, and the decree, in my view, is entirely equitable.
    I see no reason in any of the matters submitted which would justify a reopening of the proofs and a rehearing of this cause.
    I will advise an order that the petition for a rehearing be dismissed, with costs.

      Messrs. Wilson, Carr & Slackhouse, for the appellant.

      Mr. Howard M. Cooper, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion of Vice-Chancellor Grey, rendered on the application for a rehearing and filed in the court below.

For affirmance—The Chief-Justice, Dixon, Garrison, Fort, Garretson, Pitney, Swayze, Bogert, Vredenburgh, Vroom, Green, Gray—12.

For reversal—None.


text:
    Roberta Connely, executrix, respondent, v. Daniel M. Haggerty et al., appellants.
    [Argued March 8th, 1905.
    Decided July 6th, 1905.]
    On appeal from a decree, of the court of chancery advised by Vice-Chancellor Grey, whose opinion is reported in 65 N. J. Eq. (20 Bide.) -596.

      Messrs. French & Richards, for the appellants.

      Mr. Ilarry Wootion and Messrs. Thompson & Dole, for the respondent.
   Per Curiam.

Decree affirmed.

For affirmance—The Chief-Justice, Fort, Garretson, Pitney, Swayze, Gray—6.

For reversal—Dixon, Garrison, Bogert, Vredenburgh, Vroom, Green—6.


text:
    George E. Myers et al., respondents, v. The Steel Machine Company, appellant.
    [Submitted April 4th, 1905.
    Decided June 19th, 1905.]
    On appeal from a decree in chancery advised by Vice-Chancellor Grey, whose opinion is reported in ¡67 N. J. Hq. >800.

      Mr. Austin H. Swackhamer and Mr. Horace Pettit, for the appellant.

      Mr. Spencer Simpson, for the respondents.
   Per Curiam.

A considerable portion of the briefs presented by counsel on this appeal is devoted to discussion of the question whether the contract between the parties, dated December 21st, 1901, covers machines such as are described in Johnstone’s application for a patent filed in the patent office June 10th, 1902. This question was not decided in the court of chancery, nor is it disposed of by the decree there rendered; consequently it is not ripe for decision on this appeal.

Upon this understanding of the decree we think it should be affirmed, substantially, for the reasons stated in the opinion of Vice-Chancellor Grey.

For affirmance—The Chief-Justice, Dixon, Garrison, Fort, Garretson, Pitney, Swayze, Bogert, Vresdenburgh, Vroom, Green, Gray—12.

For reversal — None.


text:
    Wilhelmina C. Wieters, respondent, v. Israel Hart, appellant.
    [Argued March 13th and 14th, 1905.
    Decided July 6th, 1905.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Bergen, whose opinion is reported in 67 N. J. Eq. &07.

      Mr. John Sykes and Mr. John T. Bird, for the appellant.

      Mr. Frederick J. Faulks, for the respondent.
   Per Curiam.

The decree is affirmed, for the reasons stated in the opinion rendered by Vice-Chancellor Bergen in the court of chancery.

For affirmance—The Chief-Justice, Fort, Garretson, Pitney, Bogert, Vredenburgh, Vroom—7.

For reversal—Dixon, Garrison, Swayze, Green—4.


text:
    Frank J. Currier, appellant, v. Ada Dow Currier, respondent.
    [Submitted March 27th, 1905.
    Decided November 20th, 1905.]
    On appeal from a decree of Chancellor Magie, whose opinion is reported ante p. 7.

      Messrs. Hudspeth & Puster, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons set forth in the opinion filed in the court of' chancery by Chancellor Magie.

For affirmance—The Chief-Justice, Dixon, Garrison, Fort, Garretson, Pitney, Swayze, Bogert, Vredenburgh, Vroom, Green, Gray—12.

For reversal—None.


text:
    In the matter of the alleged last will and testament of Benjamin Middleton, deceased. Ellen J. Middleton, appellant, v. Minnie W. Gilbert et al., respondents.
    [Argued March 27th, 1905.
    Decided November 20th, 1905.]
    On appeal from a decree of the prerogative court advised by Vice-Ordinary Bergen, whose opinion is reported arde p. 584.

      Mr. Samuel k. Robbins and Mr. Louis H. Miller, for the appellant.

      Mr. Martin W. Lane and Mr. James S. Ware, for the respondents.
   Per Curiam.

The decree appealed from will be aflirmed, for the reasons set forth in the opinion filed in the prerogative court by Vice-Ordinary Bergen.

For affirmance—The Chief-Justice, Dixon, Garrison, Fort, Garretson, Pitney, Swayze, Bogert, Vredenburgh, Vroom, Green, Gray—12.

For reversal—None.


text:
    Charles H. Olden, appellant, v. Uriah Sassman, respondent.
    [Argued March 30th, 1905.
    Decided November 20th, 1905.]
    On appeal from a decree of the. court of chancery advised by Vice-Chancellor Reed, whose opinion is reported in 67 N. J. Eq. 239.

      Mr. Fergus A. Dennis and Mr. John T. Bird, for the appellant.

      Mr. Edwin Robert Walker, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons set forth iir the opinion filed in the court of chancery by Vice-Chancellor Reed.

For affirmance—The Chief-Justice, Dixon, Garrison, Fort, Garretson, Pitney, Swayze, Bogert, Vredenburgh, Vroom, Green, Gray—13.

For reversal—None.


text:
    Mary C. Hartman, appellant, v. Frank H. Powell, respondent.
    [Submitted March 27th, 1905.
    Decided. November 20th, 1905.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Grey, whose opinion is reported ante p. -B9.S.

      Mr. Harry S. Scovel, for the appellant.

      Mr. Howard. Carrow, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons set forth in the opinion filed in the court of chancery "by Vice-Chancellor Grey.

For affirmance—The Chief-Justice, Dixon, Garrison, Fort, Garretson, Pitney, Swayze, Bogert, Vredenburgh, Vroom, Green, Gray—12.

For reversal—None.


text:
    Regina Music Box Company, appellant, v. J. G. Otto & Sons et al., respondents.
    [Submitted March 27th, 1905.
    Decided November 20th, 1905.]
    On appeal from a decree in the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in &5 N. J. Eq. (20 Dick.) 582.

      Mr. Frederick Seymour, for the appellant.

      Messrs. Vredenburgh, Wall & Van Winkle, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons set forth in the opinion filed in the court of chancery by Vice-Chancellor Stevens.

For affirmance—The Chief-Justice, Garrison, Fort, Garretson, Pitney, Bogert, Vroom, Green, Gray—9.

For reversal—Dixon, Swayze, Vredenburgh—3.


text:
    Zenas E. Newell et al., trustees, respondents, v. J. G. Otto & Sons et al., respondents, and Regina Music Box Company, appellant.
    [Submitted March 27th, 1905.
    Decided November 20th, 1905.]
    On appeal from a decree in the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 65 N. J. Eq. (20 Dick.) '582.

      Mr. Frederick Seymour, for the appellant.

      Messrs. Vredenburgh,, Wall & Van Winkle, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons set forth in the opinion filed in the court of chancery by Vice-Chancellor Stevens.

For affirmance—The Chief-Justice, Garrison, Fort, Garretson, Pitney, Bogert, Vroom, Green, Gray—9.

For reversal—Dixon, Swayze, Vredenburgh—3.


author: Magie, Chancellor.

text:
    Victor E. Bevans et al. v. Edwin Bevans et al.
    [Decided February 7th, 1905.]
    The court of chancery -will not express an opinion as to the construction of a will involving title to real estate, independent of any equitable-relief sought.

      On bill for construction of will, answer and proofs.

      Mr. Martin Bosenhrans, for the complainants.

      Mr. Addison P. Bosenhrans, for the defendants.
   Magie, Chancellor.

This matter has been submitted upon pleadings and proofs, without any briefs from counsel.

The purpose'of the bill is to obtain a construction of a will with respect to the title to real estate. No equitable relief of any sort is sought, and the only decree which could be made upon the pleadings would be one merely expressing my opinion upon the meaning of the will in question.

I have had occasion to examine the jurisdiction of this court in construing wills, and it was declared by me that it was capable of being exercised with respect to title to real estate only when some equitable relief is sought in respect to such real estate. Hoagland v. Cooper, 65 N. J. Eq. (20 Dick.) 407.

TJpon this bill there is therefore no jurisdiction to construe the will, and it is settled that the court will not express opinions in regard to construction for the mere information of parties, disconnected from some equitable relief sought.

This would lead to a dismissal of the bill, but as counsel have submitted the matter without briefs, I will give them an opportunity to be heard, if they desire, before such a decree is entered.


author: Mache, Chancellob.

text:
    Andrew Cole v. Jennie A. Cole et al.
    [Submitted October 26th, 1904.
    Decided February 7th, 1905.]
    1. A tenant in common, who has been in exclusive possession, may be required to discover and account for rents and profits in proceedings to partition the common property.
    2. Land descended to complainant and his brother as heirs of their mother. The brother conveyed his interest to one who afterwards conveyed to defendant. The brother also acted as administrator of his mother’s estate, and never accounted for her estate, or for moneys collected for it.—JlelA, that complainant could not, in partition proceedings against defendant, to which no representative of complainant’s mother or brother was a party, obtain an accounting of the estate of complainant’s mother, or have complainant’s distributive share of that estate imposed as a lien on defendant’s interest in the land.
    3. Where a bill combines prayers for proper and improper relief, and a demurrer to the part of the bill seeking- improper relief is sustained, the bill will be retained for the administration of the relief properly sought.
    4. A demurrer not confined to thé part of a bill on which no relief can be decreed, but covering- the whole bill, is too broad, and must be overruled if the bill shows one sufficient ground for relief.
    On demurrer to bill.

      Mr. Frank F. Bradner, for the demurrants.

      Mr. J. Merritt Lane, for the complainant.
   Mache, Chancellob.

The primary object of the bill demurred to is the partition of land in this state, or a sale if division cannot be made.

By the statements of the bill the land of which partition is sought descended to complainant and his brother, Henry Y. Cole, as the only heirs-at-law of their mother, Elizabeth Cole, who died in 1884, seized thereof and intestate, leaving her husband, Enos Cole, surviving her. Thereafter, Henry Y. Cole conveyed his interest in the land to Enos Cole, who was the tenant by the courtesy, and Enos Cole thereafter conveyed the same interest to Jennie A. Cole. These conveyances are stated to have been made without consideration.

The bill further states that Henry Y. Cole, who died intestate in 1904, during his lifetime had possession of the land in question-and took all the rents and profits thereof, and that after his death Jennie A. Cole had possession thereof and took all the rents and profits.

It is further stated therein that Henry Y. Cole “acted” as administrator of Elizabeth Cole, deceased, and never accounted for her estate or for moneys collected from fire insurance policies for her estate. Complainant charges that he is entitled to one-half of her estate and moneys, and that Jennie A. Cole, when she took title to the land in question, knew that complainant was entitled thereto.

Upon these statements complainant prays partition or sale of the lands, an accounting for the rents and profits and an accounting for the amount due him from Henry Y. Cole for complainant’s share of the estate of Elizabeth Cole and the insurance mone3's, and that the amounts found due complainant on such accountings should be charged as specific liens upon the share in the lands in question conveyed to Jennie A. Cole. ’

By an amendment to the bill the marriage of Jennie A. Cole to Frank McGinley is stated, and said Frank McGinley was made a party.

A demurrer is interposed to the whole bill by Jennie A. Mc-Ginley and her husband.

The causes of demurrer assigned, in various forms, present, as one ground of objection to the bill, that it is multifarious, in that it combines in one proceeding distinct and disconnected causes of'action, as to some of which no relief or discovery may be properly granted against demurrants.

It is first urged that the complainant is not entitled to any discovery or accounting from demurrants for the rents and profits of the land, but this objection is of aro force. Wheaa a partition is sought, one of the teaaants ioa coaaaanon, who has been in exclusive possession, may be required to account for the rents and profits in the same proceedings. Keeney v. Henning, 58 N. J. Eq. (13 Dick.) 74; Hanneman v. Richter, 63 N. J. Eq. (18 Dick.) 753.

It is next urged that the demurrants cannot be called to account for the estate of Elizabeth Cole, or for any liability of Henry Y. Cole for said estate, and that no1 lien can be imposed on the interest in the land belonging to Jennie A. McG-inley for any distributive share of said estate to which complainant may be entitled.

If a demurrer had been interposed to this part of the bill, it is obvious that it must have been allowed. Ho personal representative of Henry Y. Cole, or of Elizabeth Cole, is a party to this proceeding. The claim of the complainant for an accounting of the personal estate of Elizabeth Cole requires the presence of such parties before an adjudication can be had. If it be assumed that a decree arising from an accounting of the estate of Elizabeth Cole, and requiring the pajunent of a distributive share "thereof to complainant, could be imposed as a lien on the interest of Henry Y. Cole in this land if he were living, or upon the interest therein transferred to Jennie A. MeG-inley without consideration (which is questionable), such accounting must be sought from those who had the estate to be accounted for, and could not be required from the present owner of the interest in the land, who, so far as appears, never had the estate and could not account therefor.

But the demurrer is interposed to the whole bill. The relief sought by'the bill by way of partition and accounting for rents and profits is not objectionable. There is therefore no one sufficient ground set up for relief. The claim for an accounting of the estate of Elizabeth Cole is obviously, as against demurrants, lacking in equity, and the relief sought in that respect cannot be decreed.

Upon a demurrer to that part of the bill being sustained, the bill would proceed for the relief properly sought. Emans v. Emans, 14 N. J. Eq. (1 McCart.) 114.

A demurrer not confined to a part of a bill, on which no relief can be decreed, but covering the whole bill, is too broad, and if the bill shows one sufficient ground for relief it must be overruled. Banta v. Moore, 15 N. J. Eq. (2 McCart.) 97; Durling v. Hammar, 20 N. J. Eq. (5 C. E. Gr.) 220; Brownlee v. Lockwood, 20 N. J. Eq. (5 C. E. Gr.) 239; Garrison v. Technic Electrical Works, 55 N. J. Eq. (10 Dick.) 708.

None of the other causes for demurrer assigned seem to-require consideration.

■ The demurrer must therefore be overruled.


text:
    Jonathan W. Acton, substituted administrator, v. Kate L. Shultz et al.
    [Decided February 7th, 1905.]
    1. Where, in an action against distributees of a decedent who had assumed payment of a bond and- mortgage as a part of the consideration for the purchase of land encumbered thereby, it was alleged that the bond was payable at the death of a certain widow, who died April 15th, 1904, the cause of action- did not accrue until that date, so that a failure- of the obligor to pay interest for sixteen years prior to- the filing of the bill shortly after the widow’s death was ineffective to bar the action, under 2 Gen. Stab. p. 1975 § 6, barring a debt under seal on which no payment has been made within sixteen years.
    2. A demurrant may present, ore terms, an additional ground of demurrer.
    3. It is not necessaiw that the holder of a bond alleged to have been assumed by defendant’s testator should have presented it as a claim against his estate in order to entitle the holder to proceed to enforce defendants’ statutory liability as distributees for the payment of the bond.
    4. Where complainant had no lien on personal assets of a deceased person he could not maintain a suit in equity against distributees of such assets to subject them, or lands purchased therewith, to the payment of a bond on which deceased was liable, complainant’s remedy at law being-complete and adequate.
    On demurrer to bill.

      Messrs. Watkins £ Avis, for tlic demurrants.

      Mr. I. Oak ford Acton, contra.

   Magie, Chancellor.

This is a demurrer to a bill for lack of equity.

The purpose of the bill is to obtain a decree against certain persons, interested in the estate of John W. Shultz, deceased, requiring them to pay a bond, given by Edward Shoemaker on February 27th, 1871, to one Sumerill, the administrator of Samuel Humphreys, deceased, conditioned for the payment of $211.66 at the death of Elizabeth, the widow of Samuel Humphreys, with interest. It states that Shoemaker, on March 4th, 1874, conveyed to John W. Shultz certain land on which Shoemaker had given a mortgage to secure said bond, and that Shultz had assumed the payment of that mortgage.

The sole cause of demurrer assigned is that the bill fails to show that Shoemaker remained personally liable upon the bond. The contention thereon is, that upon the statements of the bill, the statute of limitations had barred any action against Shoemaker upon said bond, and that, as his liability had ceased, no liability can be enforced against one who had assumed the payment of the bond or the mortgage securing it upon a purchase of the mortgaged premises. Norwood v. DeHart, 30 N. J. Eq. (3 Stew.) 412; Eakin v. Shultz, 61 N. J. Eq. (16 Dick.) 156.

This ground is insufficient to support the demurrer. The statement of the bill that the bond was conditioned for the payment of the principal sum at the death of Elizabeth, the widow of Samuel Humphreys, is accompanied with a statement that Elizabeth Humphreys died April 15th, 1904. Therefore the cause of action did not accrue until that date, and the argument that because the bill does not aver payment of interest by Shoemaker within sixteen years previous to the filing of the bill, is ineffective to make applicable the provision of section 6 of the statute of limitations. 2 Gen. Stat. p. 1975.

It is further claimed by the brief of counsel that the bill is demurrable because it seeks to enforce the payment of the principal of the bond in question, with interest since the death of Elizabeth Humphreys, out of the personal estate of John W. Shultz (who assumed the payment of the mortgage securing the payment of the bond) which has come to the hands of the defendants, who are not his personal representatives, but are only charged to have received from his .executor the personal property accounted for by the executor. The argument is that the bill is defective because it fails to show that any claim had been presented to Shultz’s executor for the payment of the bond in question, .either by Sumerill who, as administrator, was the obligee thereof, or by the complainant, who appears to be the substituted administrator of Samuel Humphreys.

A demurrant may present, ore tenus, an additional ground of demurrer.

If the relief in this cause were-sought from the defendants as heirs-at-law or devisees of John W. Shultz, no claim need to have been presented to his administrator or executor, in order to justify a resort to the remedy provided by statute making them answerable for debts of their ancestor to the amount of assets. Stone v. Todd, 49 N. J. Law (20 Vr.) 274. But such relief is obtainable only by an action at law. Mutual Life Insurance Co. v. Hopper, 43 N. J. Eq. (16 Stew.) 387; S. C., 44 N. J. Eq. (17 Stew.) 604; Edward v. McClave, 55 N. J. Eq. (10 Dick.) 151; S. C., 55 N. J. Eq. (10 Dick.) 822.

The bill makes no charge that any real estate descended or was devised to the, defendants from John W. Shultz. It relies for relief on these statements—first, that Shultz’s executor settled an account of said Shultz’s estate on April 25th, 1891, which exhibited a balance in his hands of $992.66; and second,, that the executor paid such balance to- Kate L. Shultz, who invested a portion of it in the purchase of a house and lot, pursuant to authority conferred upon her in Shultz’s will. What became of the uninvested portion is not made to appear, nor is it made to appear what title accrued to the defendants in the house and lot thus purchased. But complainant claims a lien on the said house and lot in which a portion of the money was invested, and on the uninvested amount, and prays a decree for payment thereout of the bond in question.

Notwithstanding the holder of the bond in question could not enforce the payment of the principal until the death of Elizabeth Humphreys in 1904, it may perhaps be questionable whether he could not have presented to Shultz’s executor a claim as for a debt not yet due, under section 69 of the Orphans Court act of 1898. P. L. 1898 p. 739; Crater v. Smith, 42 N. J. Eq. (15 Stew.) 348; S. C., 43 N. J. Eq. (16 Stew.) 636.

But the complainant is seeking relief in respect to the personal estate of John W. Shultz, or the lands purchased by the proceeds thereof. In such case the complainant’s remedy is at law and not in equity, unless some right of lien is made to appear. Mutual Life Insurance Co. v. Hopper, 43 N. J. Eq. (16 Stew.) 387; S. C., 44 N. J. Eq. (17 Stew.) 604.

The bill fails to disclose whether any decree barring suit against the executor of Shultz was made upon the settlement of the estate. If none was made, possibly a suit may now be maintained against the executor. If a decree barring action against him was made, the executor was bound to require a refunding bond to be given upon the payment of the distributive shares under Shultz’s will. Section 78, Orphans Court act (P. L. 1898 p. 742). If he failed to take such a bond he may be liable If he exacted and received such a bond the creditors may resort thereto. All such relief, however, can be afforded by actions at law. As there is nothing to indicate any lien upon the personal property or the lands in which a portion of the property has been, invested, and as, in my judgment, an action at law will afford the remedy sought by complainant, there is no ground for resorting to a court of equity, and the demurrer, for lack of equity, must be sustained.


text:
    Lena Boehs v. William Hanger.
    [Argued October Term, 1904.
    Decided February 7th, 1905.]
    1. The jurisdiction of the court of chancery to decree the annulment of a marriage on the ground of fraud is confined to cases of fraud which affect the essentials of marriage, and will not be exercised if a decree of annulment will violate public policy.
    2. The parties to this suit were legally married and lived together as husband and wife for about one year, when complainant left defendant because he failed to support her. Before the marriage defendant falsely, stated to complainant and to the justice of the peace who performed the ceremonj' that he had never been previously married. In fact, he had been married previously and had been divorced from his wife, who was still living.—Held, that the false statement did not affect any essential of marriage, for the parties were competent to marry; their cohabitation, when married, was within the law, and children, if begotten of the marriage, would be legitimate.
    3. Complainant is a member of a church, one of the tenets of which is that a marriage cannot be dissolved except by the death of one of the contracting parties, and that a marriage with a divorced person, the other party to the divorce being yet living, is invalid and cohabitation therein is sin.—Held, that although complainant may have been misled by the false statement and induced to infer that defendant could not be a divorced person, the marriage, being valid by the law of the land, should not be annulled because it is claimed to be invalid by the law of a church.
    On Lili lor annulment oí marriage.

      Mr. William J. Kearns, lor the complainant.
   Magie, Chancellor.

By her bill complainant seeks a decree annulling the marriage between her and the defendant.

The defendant not having interposed any defence, a reference of the matter to a special master was made under rule 165&. The special master has sent up the proofs taken before him, with his opinion that said proofs are insufficient to justify a decree declaring the marriage between the parties null and void. The cause has been brought to hearing upon the bill, proofs and report, to which exceptions were filed.

It is now argued that the master’s opinion was erroneous, and that upon the proofs the decree sought ought to be made.

It is settled in this state that the court of chancery, under its general power to annul fraudulent contracts, has jurisdiction to annul a contract of marriage for fraud. Carris v. Carris, 24 N. J. Eq. (9 C. E. Gr.) 516; Crane v. Crane, 62 N. J. Eq. (17 Dick.) 21, and cases cited. But it is not for every fraud perpetrated in respect to this peculiar relation that a court should interfere to nullify it. In the prevailing opinion of Mr. Justice Bedle in the Garris Case, the court of errors and appeals lays down the rule that the marital relation will not be annulled for an3r fraud except that which operates upon the very essentials of marriage, and never when the effect of its annulment is against sound public policy.

The facts proved and relied on to- justify and require a decree declaring the marriage null and void are the following: The parties were legally married on September 29th, 1901, and lived together as husband and wife until September, 1902, when complainant left defendant because he failed to support her. Afterward complainant discovered that defendant had been previously married to another woman, from whom he had been-divorced on August 13th, 1901. Although the decree of divorce left defendant legally competent to enter into the marriage contract with complainant, and although it is conceded that they did legally contract and live together in marriage, it is contended that complainant was induced to enter into that contract by deception and fraud. She testifies that' defendant, before their marriage, asserted to her that he had never been married, and she is corroborated by the justice of tire peace who performed the ceremon3r, who testifies that defendant then declared to him that the marriage about to take place was his first marriage.

It is obvious, however, that the false statement respecting defendant’s previous marriage did not in any respect touch, or affect any essential of the marriage entered into. The parties were both competent to marry; their cohabitation, when married, was within the law, and children begotten thereof would be legitimate.

But complainant’s insistment is that the false statement operated as a fraud upon her, in that it justified an inference that he was not a divorced person. Her proofs show that she is a member of a religious body, one of the tenets of which is that marriage, once contracted, cannot be dissolved except by the death of one of the contracting parties, and that a marriage with a person divorced by law and not by death is invalid, and cohabitation between persons thus married is sin. She asserts that if she had been informed of the truth which was concealed by the false statement, she’ would not have entered into the marriage relation with defendant.’ ,

The case is lacking of either allegation or proof that defendant knew of the law of the church in question, or of complainant’s recognition of its obligation. Therefore, no consideration need be given as to whether the relief sought could be afforded when such a false statement was made with the intent to induce a disobedience of a known obligation prohibiting the making of such a contract.

The case presented by the bill and proofs required the report of the master. To hold otherwise would elevate the law of the individual or of the church above the law of tire land, which alone the courts are bound to administer.

It results that the report must be confirmed and the bill must be dismissed.


text:
      J. Edward Flitcroft v. Allenhurst Club.
    [Decided February 7th, 1905.]
    Exceptions for insufficiency will lie to the answer of a corporation.
    On exceptions to answer for insufficiency, heard without reference, under section 26 of the Chancery act of 1902..

      Mr. Linton Satterthivait, for the complainant.

      Messrs. Blach & Drayton, -for the defendant.
   Magie, Chancellor.

This hill is filed for the reformation of a contract in writing between the parties, by including therein a promise or undertaking which complainant charges was intended to be included, but which was omitted therefrom, by mutual mistake.

By the contract set out in the bill, complainant agreed with defendant to furnish the material and labor to complete the piumbing in a building to be erected by defendant, in accordance with certain specifications. The defendant agreed thereby. to pay complainant the price of the material and labor, and the parties mutually agreed that such price should not exceed the sum of $11,000, “including commissions.” But the contract omits to state upon what or at what rate commissions are to be calculated. If there may be implied therefrom the fact that commissions were to be calculated upon the price of the materials and labor, it is clear that nothing in the contract justifies any inference as to the rate at which the commission should be calculated.

The complainant asserts by the bill that the actual agreement between him and defendant was that defendant should pay complainant commissions at the rate of ten per cent, upon the price of such materials and labor, provided that such price and commission together should not exceed $11,000, and that it was intended by the parties that such a term should be inserted in the contract. Having been omitted by mutual mistake, com-, plainant seeks a decree to reform the contract according to the real intention of the.parties by the insertion of that term.

The defendant, á corporation, has filed an answer, to which complainant has excepted for insufficiency, and the exceptions have been brought to hearing upon briefs submitted by the counsel of both parties.

The complainant contends that the answer is defective in that it fails to respond to the distinct allegations of the bill that tire actual agreement of the parties was that complainant should be paid by defendant commissions on the price of the materials and labor, and that at the rate of ten per cent, on that price.

On the part of the defendant it is suggested, rather than contended, that exceptions for insufficiency will not lie to an answer of a corporation. But it has been held in this court that such exceptions may be interposed. In Reed v. Cumberland Insurance Co., 36 N. J. Eq. (9 Stew.) 393, Chancellor Runyon dealt with a motion to strike out parts of an answer filed by a corporation. The motion was evidently made under rule 213, and for the purpose of presenting objections to an answer without filing exceptions thereto. The motion was deemed by the learned chancellor to present the question whether exceptions or objections could be filed to an answer of a corporation for insufficiency, and it obviously did so. Although the question was not argued, the court decided it, and held that exceptions for insufficiency could be interposed to the answer of a corporation and also to an answer filed without oath, the answer under oath having been waived.

An examination of the answer has led me to the conclusion that it is insufficient in the particulars claimed. I do not find in it a full, frank and explicit response to the allegations of the bill above stated respecting the agreement for the payment of commissions upon the price of material and labor furnished, and the rate at which such commission was to be calculated.

The exception must be sustained and the answer adjudged insufficient.


author: Magie, Ci-iancellok.

text:
    August Seastream et al. v. The New Jersey Exhibition Company.
    [Decided February 14th, 1905.]
    1. The use of esc parte affidavits in procuring jpi order to show cause why respondents should not be adjudged guilty of contempt of court is proper where affiants are present at the hearing on the return and are offered for cross-examination to the persons named in the order.
    2. An investigation as to alleged conduct in contempt of the court of chancery may be referred to the vice-chancellor or a master of the court.
    3. A proceeding for contempt not committed in open court, being punitive in character, and hence not the subject of appeal, and which may affect property and liberty, ought not to depend on- the judgment of a vice-chancellor or master in chancery, but is a matter for the personal attention of the chancellor.
    On order to show cause why August Seastream, Benjamin T. Haagenson, Howard Griffiths, William Davis and another should not be adjudged guilty of a contempt of the court of chancery, for attempting to improperly influence the due administration of justice therein.

      Mr. Frank P. McDermott, specially appointed.

      Mr. Allan L. McDermott, for Haagenson, Griffiths and Davis.

      Mr. James Benny, for August Seastream.
   Magie, Ci-iancellok.

The bill in this cause was filed by August Seastream and Charles C. Alexander, as complainants for themselves and other residents of the city of Bayonne, against “The New Jersey Exhibition Company,” a corporation of this state. Its purpose as indicated by its prayer was, among other things, to obtain an injunction restraining the company from permitting the playing of baseball or other sports upon grounds occupied by it in Bayonne, on the first day of the week, commonly called Sunday.

The bill, when filed, was presented to the Hon. Henry C. Pitney, one of the vice-chancellors, under the provisions of rule 204a, and application was made thereon for an order to show cause and a temporary restraining order. An order to show cause, including a temporary restraining order, was advised by him, and signed by me upon his advice.

The order to show cause was returnable at one of the chancery chambers and was brought to hearing before Vice-Chancellor Pitnejr, sitting for me in my absence. It was supported upon the affidavits appended to the bill, and other affidavits taken and served according to the practice of the court, and was objected to by the defendant u|ion affidavits presented by its counsel, taken and served in accordance with the practice.

Among the affidavits presented on behalf of the defendant company was one made by the complainant August Seastream. For present purposes it is sufficient to say that the sworn statements contained in the last-named affidavit were absolutely inconsistent with the statements contained in the affidavit of the same person which had been annexed to the bill, and upon which the pending order had been made. One of the other of the affidavits was evidently untrue.

Hpon the presentation of the latter and contradictory affidavit the vice-chancellor before whom the matter was pending, evidently conceiving that a question arose thereon whether there had not been a violation of the law respecting perjury, requested Hon. John A. Blair, the judge of the court of common pleas and ex-officio judge of the quarter sessions of Hudson county, to investigate. Judge Blair is a master, and a special master of this court, but the matter was not referred to him to take testimony as such master, or to report thereon to this court. If the request was in this respect irregular, the irregularity is of no consequence, for Judge Blair, although -fixing times for investigation, and being attended by counsel for that purpose, did not proceed thereon, and mainly because of the absence of August Seastream. But afterward August Seastream did appear before him and was examined by the judge. His statements were put into the form of an affidavit and sworn to by him before Judge Blair. The wife of August Seastream was also examined and her affidavit taken by,Judge Blair. These affidavits, with others, were presented to Vice-Chancellor Pitney, who thereupon advised an order upon August Seastream, Benjamin T. Haagenson, Howard Griffiths, William Davis and another, directing them to show cause why they should not be adjudged guilty of a contempt of court in attempting to improperly influence the administration of justice therein. The order was signed by me upon his advice.

The order was accordingly brought to hearing before Vice-Chancellor Pitne3r, the persons named therein appearing before him and being represented by counsel. The affidavits on which the order to show cause was granted (including those made by August Seastream and his wife before Judge Blair) were before the court. The Seastream affidavits, although ex parte, were properly used in procuring the order to show cause. When that order was upon hearing, both August Seastream and his wife were produced, offered to the persons named in the order for cross-examination, and were examined, the latter by the vice-chancellor, when no cross-examination was demanded. The facts in the affidavits taken before Judge Blair were substantially restated and sworn to in the oral testimony of both Sea-stream and his wife.

Vice-Chancellor Pitney, conceiving that the matter was one which affected the dignity and the authority of the court, with my approval, requested Mr. Frank P. McDermott, a member of the bar, to attend at the hearing and the presentation of the evidence and to examine and cross-examine the witnesses. It is proper to say that the gentleman selected performed the duties imposed upon him by the request in an eminently satisfactory and impartial manner.

The hearing of the order to show cause was upon evidence orally taken and stenographically reported. It occupied some time in taking, and the parties accused were given every opportunity to present evidence to be heard.

Vice-Chancellor Pitney took time to consider the matter, and afterward furnished me with his conclusions, in writing, as to the facts proved, and requested me to attend at the time he should announce his conclusions, to consider and determine what should be done thereon, which I consented to do.

When I attended for that purpose, counsel for the accused parties made application to me to rehear the whole matter. Their contention was that the proceeding was an inquiry into conduct alleged to have been directed to the injury of the court of chancery in its dignity and authority in the administration of justice, and that as the court of chancery constitutionally consists of the chancellor, he ought personally to conduct the proceedings and take the evidence on which his judgment should be rendered. I found myself unable to agree with this view. In my judgment, I would have been justified in directing any master of my court to investigate such an accusation and to report to -me the facts, and I could justifiably act upon such report. TTrider the present practice ,of the court, an investigation by a vice-chancellor and a report from him, is not only proper, but more desirable. Therefore, I should not have hesitated to adopt the conclusions of the vice-chancellor, and even to have made a decree or order advised by him, but for other considerations.

There were two other considerations which were deemed by me to require a review of the whole matter. One was that the report of a master, if the matter had been referred to a master, could have been challenged by exceptions, which would have required some review. The other, and more controlling, consideration was that, since this proceeding is one purely punitive in character, and therefore not the subject of appeal (Frank v. Herold, 64 N. J. Eq. (19 Dick.) 371), the result reached (which may affect property and liberty) ought not to depend upon the judgment of a single judicial officer unless necessar3r, as, for example, in the punishment of a contempt of court, committed in open court. In this aspect, I think such a case is a fair exception from the rule enunciated in Gregory v. Gregory, 67 N. J. Eq. 7, respecting review of the conclusions of vice-chancellors under the acts creating that position as an aid in the conduct of the business of the court of chancery.

In consequence of this conclusion, I heard counsel for the accused parties, and have examined the whole matter. The stenographer’s notes of evidence have been read and reread. I have endeavored to reach conclusions thereon,' uninfluenced by the results of the vice-chancellor’s examination. It is with sincere regret that I feel bound to say that my conclusions are those which he reached and expressed in his opinion furnished .to me.

The result is that August Seastream, Benjamin T. Haagenson, Howard Griffiths and William Davis must be pronoiinced guilty of the contempt charged, and it only remains to declare my judgment as to the penalty that should follow.


author: MAGIE, CíIAlSrCELLOR.

text:
    Simon Strauss et al. v. The Casey Machine and Supply Company et al.
    [Argued February Term, 1905.
    Decided April 4th, 1905.]
    1. Exceptions to a final account of the receiver of an insolvent corporation will not be considered if they relate to matters which could have been urged against making the decree of insolvency, or upon an order to show cause why a. previous account of the receiver should not be set aside, obtained by the exceptant.

      2. The account now presented, being unsupported by sufficient vouchers, will be referred to a master, by an order excluding from consideration every matter adjudicated upon in the decision of the order to show cause and the confirmation of tlie report on the previous accounts of the receiver.
    An order to show cause why the account of Iienry D. Leslie, receiver in this cause, should not be confirmed and said receiver discharged, was brought to hearing and heard in December last.
    An examination of the files of the court discloses that there was a decree of insolvency of the defendant company in September, 1890, and Leslie was appointed receiver.
    On July 18th, 1891, the receiver filed .an account, to which no exception appears to have been taken.
    On September 3d, 1895, the receiver filed another account, and bjr an order as of September 30th, 1895, the accounts were referred to a master to audit and report upon.
    The master’s report was filed October 4th, 1897.
    To his report Jeremiah Case}1, a stockholder, filed “protests and exceptions,” not signed by solicitor, or by counsel, or by himself. No motion was made to take from the files tire so-called protests and exceptions, which were expressed in objectionable language. There was no motion to confirm the master’s report immediately made.
    On October 18th, 1900, an order to show cause was made (on an affidavit of Jeremiah Casey), requiring the receiver to show cause why he should not give a correct, complete and full report as receiver; why his report before rendered should not be set aside as incomplete, insufficient and incorrect, and why the master’s report thereon should not be set aside and refused confirmation. Other matters were also included in the order.
    The matter was heard December 10th, 1900. A memorandum of conclusions was filed January 2d, 1901. On February 1st, 1901, the order to show cause was discharged, and on motion on behalf of the receiver, the master’s report was confirmed and an allowance to the receiver for his services was made.
    Ity the report which was thus confirmed it appeared that after the allowance for receiver’s services there was a balance of cash in the receiver’s hands of $1,272.66.

      On October 3d, 1904, the receiver filed an account as a final account, and asked for its confirmation and for his discharge from his trust. By this account the-receiver has charged himself with the balance of $1,272.66, and with no other receipts or collections, and claims allowance for disbursements made by, him to a greater amount. There was an order to show cause, with a direction for notice, &c.

      Mr. Isaac S. Taylor, for the receiver.

      Mr. 0. Bancroft Gould, for the respondent.
   MAGIE, CíIAlSrCELLOR.

Upon the hearing of this order Jeremiah Casey presented a voluminous document, intended,' it is presumed, to present his objections. An examination of it discloses no objection except such as could have been urged in this court against the making of the decree of insolvency, or upon an appeal from that decree, or such as were and could have been presented under the order to show cause obtained by him on October 18th, 1900. All those matters have been considered and adjudicated upon, and the objections are not pertinent upon the present application.

Other exceptions were filed by a solicitor of this court for Bertha Engelking, formerly Bertha Ehard, claiming to be a stockholder of the insolvent corporation. She excepts (1) because the allowance claimed for the receiver’s personal expenses is excessive; (2) because debts of the insolvent company do not appear to have been paid; (3) because the allowance claimed for fees paid to one Brown as counsel for the receiver is not shown to have been an allowance proper to be made; (4) because the receiver does not show that certain of the assets, consisting of book accounts against various parties, have been éollected, or were uncollectible; and (5) because the receiver has not enforced the liability of the stockholders of the company for their stock, or such sums as remain unpaid thereon.

It is contended that the receiver is not entitled to a discharge under these circumstances.

I think these exceptions, if presented by a person interested, require the receiver’s account now presented to be passed upon by a master.

The files of the court show that ten out of one thousand shares of the stock of tire insolvent corporation were held by J. Ehard, Jr., on which $850 only has been paid, leaving $150 due. The exceptant claimed to be a representative of said stockholder, who has since deceased. Upon a reference and proof of her being entitled to said shares, her exceptions must be considered.

While I regret to be obliged to protract this litigation by a reference, and upon exceptions which, there is reason to suppose, may result, if successful, in a very small and perhaps infinitesimal benefit to exceptant or to any stockholder or creditor, yet I am constrained to say that the receiver’s account is not presented so as' to require confirmation against objections. The allowance he claims for personal expenses is not accompanied by a sworn voucher of their actual payment. The allowance claimed for payment of counsel fees to Mr. Brown is supported by no voucher or proof. It is within the knowledge of the court that the receiver was appointed ancillary receiver in the State of Uew York, where the property of the insolvent corporation was, and there is good ground to infer that this payment to counsel was in respect to litigation in that state, extending over a number of years. But a court cannot discharge from his trust a receiver, except upon an accounting.

It may be further suggested that a receiver ought not to be discharged until he discloses whether there are debts of the insolvent corporation remaining unpaid, and whether any more of the assets have been or could have been collected for the payment of debts, and also whether the receiver in this case was bound to enforce the liability of the stockholders for the amounts unpaid upon their stock.

The result is that an order of reference will be made, but the order will be SO' made as to exclude every matter adjudicated upon February 1st, 1901, by the discharge of Casey’s order to show cause and by the confirmation of the master’s report upon the previous accounts of the receiver.