author: Dill, J.

text:
    Walter M. Jackson, complainant-respondent, v. Horace E. Hooper, Harris B. Burrows, Charles C. Whinery and Franklin H. Hooper, defendants-appellants.
    [Argued November 30th, 1909.
    Decided February 28th, 1910.]
    1. Two individuals purchased all the stock of a business corporation under an agreement that they should be partners, having equal voice and equal control in the management and business of the company; that the corporation should be treated as a mere agency in carrying out the co-partnership agreement; that the directors, other than the two parties, should be mere nominal directors; that corporate forms should be ignored and the business transacted and treated as a partnership business. This having been done for a time the parties disagreed.—Seld, that a court of equity has no power to take the corporate property into its control, as upon the dissolution of a copartnership, but that the rights of the parties must be administered as shareholders in the corporation, not as partners.
    2. An agreement between shareholders controlling the stock of the corporation, that certain directors shall act as nominal or dummy directors, subservient to the will of the parties, is illegal and cannot be enforced in a court of equity.
    3. An injunction against the persons who compose the board of directors of a corporation enjoining them individually in respect to corporate affairs, is an injunction against the corporation.
    4. A court of equity has no jurisdiction to regulate the management of the internal affairs of a corporation organized under foreign laws, through the medium of an injunction issued either against the members of the board of directors as individuals, who are parties to the action, or against the corporation directly.

      On appeal from an order of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported ante p. 185.

      Mr. Sherman L. Whipple (of the Massachusetts bar), Mr. Bichard V. Lindabury and Mr. Sherrerd Depue, for the complainant-respondent.

      Mr. Henry W. Taft (of the New York bar), Mr. Bobert H. McCarter, Mr. Jacob Newman and Mr. Benjamin V. Beclcer (of the Illinois bar), and Mr. Henry Woilman (of the New York bar), for the defendants-appellants.
   The opinion of the court was delivered by

Dill, J.

The bill and injunction in this ease rest upon the theory that the complainant, who united with the defendant Horace E. Hooper in acquiring in equal shares all the stock of two foreign corporations, pursuant to an agreement claimed to create a partnership or joint adventure, is entitled to treat the two corporations, organized under foreign laws, as mere agencies or instrumentalities in the conduct of the joint business and to subject not only the stock owned by both parties, but all the corporate property to the control of the court of chancery according to the principles of the law of partnership.

The vice-chancellor held that “the complainant and the defendant Horace E. Hooper were engaged as principals in a joint undertaking;” that “the English and Illinois corporations were respectively agencies by which they accomplished their results,” and that, as the rules governing partnerships applied, a preliminary injunction should be granted. From the injunction order the defendants appeal.

We are constrained to differ radically from the learned vice-chancellor in his views of the power and scope of the court of chancery, in dealing with corporate property, and we reach the conclusion that neither the bill nor the injunction can be sustained.

As we place our decision on broad grounds, which are disposi live of the whole case, we treat the allegations of fact in the bill as favorably as upon a demurrer and without reference to the denials, contained in the answer and affidavits submitted by the defendants.

The record in this case is voluminous, covering over six hundred pages, but the salient facts are as follows:

Prior to 1900 the compJaiuant and the defendant Horace E. Hooper had been associated in London, England, in the business of publishing and selling subscription books, “through the agency of. a company known as ‘The Clarke Company, Ltd./ ” an English corporation. In 1900 they acquired in equal portions all the stock of that company under an agreement that

“upon the acquisition of the Clarke interests and so long as they might be associated together in business, their general policy in respect of their .ioint undertakings should be determined by mutual assent, each to have and exercise the authority and control of equal partners.”

In 1902, to avoid the English tax law, the business transacted in England was separated from that conducted elsewhere. The Clarke Company, Ltd., was dissolved, and its assets and all the business carried on by the parties in interest were conveyed to two corporations, one “Hooper & Jackson, Ltd.,” of England, to carry on the business in the United Kingdom; the other, a New ■York corporation, “The Encyclopaedia Brittanica Company,” to operate elsewhere. The stock and securities of these corporations were issued to the two parties equally in payment for the property thus acquired by the corporations from these parties. The bill alleges that both these corporations were “intended to become merely instrumentalities or agencies for carrying out certain partnership purposes,” and to be subject to the original agreement.

In 1903, for reasons of their own, the parties dissolved the New York corporation and transferred its assets to an Illinois corporation of the same name and under the same general understanding that the business should be carried on as a partnership, with'five directors, of whom the complainant and Hooper were two, the other three being “nominal” directors.

As to the “nominal” directors the bill alleges in the plainest language that they were mere dummies, both in the New York company and its successor, the Illinois corporation, and says:

“It was clearly understood that the election of particular persons to these three positions was not intended to, and did not, confer upon them any authority or control or the management of the business of the plaintiff and Hooper, but that at all times such persons, employes or others, should have no right or authority whatever in corporate matters other than to vote as directed by Hooper and the plaintiff acting' jointly.”

From 1902 to 1908 the business in which the companies were engaged, including the publication of the Encyclopaedia Brittannica, extended all over the civilized world and ran up into millions, the accounts receivable alone, at the time of the filing of the bill, amounting t"o over $2,000,000. During all this time, according to the bill, the business was conducted in the names of corporations but always in accordance with the original agreement as to equal ownership, interest, authority and control, the three nominal directors being mere employes and automatons of the parties, and the existence of the corporations being always disregarded “except as agencies and instrumentalities created by them for carrying out certain of their co-partnership purposes.”

In 1908 the complainant and Hooper quarreled as to the business policy, and their differences having become irreconcilable the theretofore dummy directors voted with Hooper and against the complainant. This, as the bill puts it, constituted a breach of the so-called partnership agreement that Jackson and Hooper should have equal control and equal voice in the management of the companies and that the other three directors should be and remain dummies.

The charge of the bill is that Hooper and the three nominal directors passed corporate resolutions and amended by-laws which changed the complainant’s alleged partnership control, contrary to his wish, or, in other words, that the three dummy directors, assisting Hooper, practically ousted the complainant from his alleged partnership control over the corporation. This was done by the passage of resolutions, as, for example, requiring checks to be signed by two officers, thus putting it out of the complainant's control to draw on the assets of the company, as a partner would, whenever he saw fit and by his own cheek.

The relief asked for is that the court appoint a receiver of all file assets and joint property of the complainant and the defend-mt Horace E. Hooper, including their stock in the two corporations, such receiver to have the usual powers of receivers of assets of a copartnership; that the defendants—directors of the Illinois corporation—be restrained from selling any of the assets of the copartnership, including such stock, or from voting upon the same; from withdrawing from the business heretofore conducted by Hooper and the complainant or from any one of their bank accounts, in whatever name the same may be, any money otherwise than in the ordinary course of business; that defendants be restrained from preventing complainant from participating, as prior to 1908, in the conduct of the business carried on by the complainant and Hooper, whether the said business is carried on in the name of themselves or their companies; that the defendants be enjoined from causing any assets of the copartnership to be transferred to or by the Illinois corporation, irrespective of the name in which such assets stand, from selling either the English or American rights of the Encyclopedia Brittannica, eleventh edition, or disposing, except in the ordinary course of business, of any other assets of the copartnership, whether they stand in individual or corporate names; that the copartnership be dissolved, that an account be taken and that the assets of the copartnership be sold and distributed between the complainant and Horace E. Hooper.

After a careful review of the facts the vice-chancellor concluded that while the complainant had been unable to establish the existence of a copartnership between himself and Horace E. Hooper, he did prove that “the series of transactions set out in the bill * * * belonged to that class of transactions which are known by the name of joint adventures” and are subject to the same rules of law which apply to partnerships. He held that the complainant was entitled to a preliminary “injunction broad enough to hold the status quo and yet so limited as not to interfere with the orderly, regular and usual conduct of the business.”

lie granted an injunction which, although reciting that 'nothing therein should “interfere or be deemed to interfere with the integrity or autonomy of the two corporations mentioned in the bill of complaint, to wit, Hooper and Jackson, Ltd., an English corporation, and the Encyclopaedia Brittanniea Company, an Illinois corporation, or either of them, or to interfere with the business or property of either of said corporations, except as herein specifically stated,” forthwith proceeds to enjoin the defendants, who, with the complainant, constitute the entire boards of directors of the English and Illinois corporations, from transferring any of the shares of stock therein, from withdrawing from the business of the complainant and Hooper or “from any one of the bank accounts of the said business, in whatever name the same may be, any money or moneys for the private or personal use of the defendants * * * or otherwise than in the payment in the ordinary course of business,” except that such defendants as are employes may receive their respective salaries. He further issued a mandatory injunction that the complainant and the defendant Horace E. Hooper may withdraw such sums for their private use as they may mutually agree upon, or, in absence of an agreement between them, that each may draw $5,000 per month: that either complainant or said Hooper shall have the right to sign checks for such amount, except that any debt of the business may be paid out of the funds thereof in whatever name standing. The order further enjoins the defendants from interfering with the complainant in his entrance and exit to and from any office where the business is carried on or in his examination of its books and accounts, and proceeds to enjoin the defendants from transferring or causing to be transferred any of the assets of the English corporation to the Illinois corporation, or vice versa, except in the regular course of business, and from “selling or causing to be sold” the rights of the Encyclopaedia Brittanniea Company in the eleventh edition, or “anj* assets of the said business carried on by the complainant and the defendant Horace E. Hooper, in whosesoever name the same may stand.”

In our view of the ease the fundamental question is not whether the complainant has established the agreement alleged, but whether, assuming that he has, the court has the power to enforce it.

The first question to be discussed is whether, assuming the fact of the partnership or joint adventure as alleged to be satisfactorily proven, the complainant and the defendant, after the organization of the foreign corporations, were, as matter of law, partners or merely shareholders.

It is conceded that the corporations in question were legally organized, existing and doing business under foreign laws. It is not disputed that when the corporations were formed and the stock and bond interests acquired the parties retained no legal title to the property or business transferred. It is not questioned that the forms of law were complied with by the election of directors and officers and the prosecution of the corporate business. Indeed, the record abounds with evidence establishing the fact that the corporations as such, through their officers and agents, made contracts and in general transacted the business for which they were organized. Thus, from 1904 to 1909, promissory notes for over a million dollars were executed by and in the name of the Illinois corporation.

It is true that directors’ and stockholders’ meetings were .seldom held and that the financial and other business affairs of the corporation were often informally and loosely conducted, yet, on the whole, the operations of the companies were the same as those of innumerable other so-called “close corporations” in which all the stock is held by a few persons who are as one in the conduct and policy of corporate action.

It is claimed, however, that these owners of all the stock were really copartners, doing business in corporate form for their own convenience, and that a court of equity has the power to control the property and affairs of the companies even to the extent of eliminating the corporate functions and powers as mere incidents and wholly disregarding the substantive law governing the creation, supervision and dissolution of corporations. We cannot subscribe to any such doctrine.

An agreement or course of dealing by which corporations are organized for the purpose of using them merely as agencies or instrumentalities, or forms in the conduct of a copartnership or joint business, and by the consent of the parties in interest to be independent''of statutory control, cannot be recognized, enforced or perpetuated by the court of chancery in this state.

It is fundamental that, no matter how the shares of stock are held, the corporation itself is an entity wholly separate and distinct from the individuals who compose and control it.

The complainant and the defendant, though owning the entire capital stock of the two corporations, are not, as expressed by Chief-Justice Waite in the leading case of Pullman Palace Car Co. v. Missouri Pacific Railway Co., 115 U. 8. 587, “the corporation, in the sense of that term as applied to the management of the corporate business or the control of the corporate property.”

The law never contemplated that persons engaged in business as partners may incorporate, with intent to obtain the advantages and immunities of a corporate form and then, Proteus-like, become at will a copartnership or a corporation, as the exigencies or purposes of their joint enterprise may from time to time require.

The policy of the law is to the contrary. If the parties have the rights of partners they have the duties and liabilities imposed by law and are responsible in solido to all creditors.

If they adopt the corporate form, with the corporate shield extended over them to protect them against personal liability, they cease to be partners and have only the rights, -duties and obligations of stockholders. They cannot be partners inter sese and a corporation as to the rest of the world.

Furthermore, upon grounds of public policy, the doctrine contended for cannot be tolerated as it renders nugatory and void the authority of the legislature—a co-ordinate branch of the government—established by the constitution in respect to the creation, supervision and winding up of corporations.

These views are amply sustained by abundant authority.

“A corporation is a legal person just as much as an individual,” said the court in Sheffield, &c., Building Society, 22 Q. B. D. 476. And in Society v. Abbott, 2 Beav. 567, Lord Lang-dale, master of rolls, held that, as in this case, great confusion arises by failure to distinguish the body corporate from the individuals who constitute, “not the corporation, but all the members of the corporation.”

The doctrine repeatedly urged by the complainant and adopted by the vice-chancellor, viz., that “the English and Illinois corporations were, respectively, agencies by which they (Jackson and Hooper) accomplished their results,” was expressly repudiated by the house of lords in Salomon v. Salomon, Limited, 45 Week. Rep. 193; L. R. App. Cas. (1897) 22, where Lord Halsbury met this argument, saying:

“I will, for the sake of argument, assume the proposition that the court of appeal lays down, that the formation of the company was a mere scheme to enable Salomon to carry on business in the name of the company. * * * Either the limited company was a legal entity or it was not. If it was, the business belonged to it and not to Salomon. If it was not, there was no person and no thing to be an agent at all, and it is impossible to say at the same time that there is and there is not a company.” And Lord Macnaghten thus concurred:

“The company is at law a different person altogether from the subscribers to the memorandum, and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the- same hands receive the profits, the company is not in-law the agent of the subscribers or trustee for them.”

Two years earlier Lord-Justice Lindley asserted the same rule in the case of Newman & Co. (1895), 1 Ch. 674, 685:

“It is true that this company was a small one, and is what is called a private company, but its corporate capacity cannot be ignored. Those who form such companies obtain great advantages, but accompanied by some disadvantages. * * * An incorporated company’s assets are its property and not the property of the shareholders-for the time being. * * * The court is bound to recognize the company as incorporated, and to give effect to all the consequences of such incorporation.”

T.he same theory and the same argument urged upon this court by the complainant’s counsel were presented to the court of last resort of Massachusetts more than seventy-five years ago, and in a case strikingly similar to and on all fours with the case at bar. That court characterized the argument as ingenious but declared the theory fallacious and the conclusions unsound. Russell v. M’Lellan, 14. Pick. 63.

The Massachusetts court said of the bill in that case:

“This was a bill in equity, setting forth that the plaintiff and the defendant were owners of a manufactory in Framingham from 1823 to the time of filing the bill; that in 1826 they organized themselves, under an act of incorporation passed in 1813, hy the name of the Framingham Manufacturing Company, and that the business, both before and after such organization, was carried on by them jointly as partners, and praying for an account and for general relief.”

The plaintiff and the defendant purchased in equal portions the entire stock of a manufacturing company pursuant to a written agreement that they should thereby become partners in the business thus carried on.

“'During the period from 1823 to 1826 the business of manufacturing was carried on in the factory under the direction of the parties, sundry goods were manufactured and sold, sundry parcels of stock were purchased, and moneys were advanced and received by the parties, respectively, and some accounts were rendered by one to the other purporting to set forth some of their dealings. Eo regular corporate meetings were held during that period, but such formal proceedings as were had appear from two books produced b}r the defendant as the records of the corporation.”

The issue was as to whether the plaintiff and the defendant were partners or shareholders. The court, after discussing the difference in law between a shareholder and a partner, said:

“It was argued that the proposal of the defendant to the plaintiff .to become jointly interested in this concern, each taking eight shares, made them "partners or joint tenants or tenants in common, ipso facto, upon its adoption. But we cannot perceive that inference, for the corporation continued. The parties did not, by the new arrangement, acquire a legal title to the corporate property. They had, indeed, joint and equal -control over it, but-their acts and doings must appear through the proceedings of the corporation in the- due forms of the law.

“It is said that the parties held for two years without doing any corporate act. If it were so, we cannot perceive that they would become partners instead of corporators.

“Upon the whole, we are of opinion that these parties are not partners, tenants in common or joint tenants, and that the bill must be dismissed.”

The court cited Pratt v. Bacon, 10 Pick. 123, likewise a decision of the court of last resort and to the same effect. The Pratt Case has been cited with approval in Von Arnim v. American Tube Works, 188 Mass. 515, and the Russell Case in Welch v. Bank, 122 N. Y. 189.

In this state, Einstein v. Rosenfeld, 38 N. J. Eq. (11 Stew.) 309, announces the same rule. The facts were similar to those in the case at bar, excepting that the corporation was a domestic one.

Chancellor Runyon said:

“It is urged, however, that in this case the corporation was but a mere form which the partners gave to what was, in fact, only a copartnership, and that this court is therefore at liberty to treat and deal with it as a copartnership. The bill alleges that the corporation is a quasi partnership. It appears by the answer that a partnership was at first agreed upon between the parties, but it was afterwards agreed between them to form a corporation instead. It is entirely clear that the court, in dealing with the subject, must treat the company as a corporation, and it cannot, in order to acquire jurisdiction over it to dissolve it, disregard and ignore its form and character.”

This decision was quoted with approval by this court in Sternberg v. Wolff, 56 N. J. Eq. (11 Dick.) 389, which appeared again in chancery, 56 N. J. Eq. (11 Dick.) 555. Two sets of stockholders were contending for control. Complainant owned one-half of the stock and defendant the other half. Suit was filed to restrain the defendant from acting as treasurer and for a receiver.

In denying an order for an injunction and receiver, Vice-Chancellor Pitney held that the remedies available as between partners- and “joint adventurers” cannot be applied to stockholders of corporations.

The basic proposition upon which the bill and the injunction rest, viz., the partnership and agency theories, having thus been disposed of adversely to the complainant, the contention that a court of equity, acting in personam, may bind the conscience of a party even to the extent of sequestrating property in a foreign state, falls with it. ‘

The remaining questions, two in number, are controlled by well-settled and familiar rules of corporation law.

The next question is whether the alleged agreement relied upon by the complainant, that the directors of the Illinois corporation, other than Jackson and Hooper, should be mere nominal directors without independent judgment and subject to.their joint dictation aüd control, is enforceable. The complainant’s position is that this agreement has been violated and he asks the court to enforce it.

Our Corporation law (section 12) provides that “The bus ness of every corporation shall be managed by its directors.” The law of Illinois is to the same effect. .

The law thus confides the business management of the corporation to its directors. The directors must act in behalf of the corporation. They represent all of the stockholders and creditors and cannot enter into agreements, either among themselves or with stockholders, by which they abdicate their inde- | pendent judgment.

Mr. Justice Garrison, in a recent decision of this court, expresses the same thought when he says:

“A contract by which the directors of such corporation in conclusive form abdicate their duty of management in this respect, and turn it over to an alien body, is in direct violation of the words and meaning of the statute, and is as typical an instance of an ultra vires act as can well be imagined. To do so in a given instance would be an illegal act.” McCarter v. Firemen’s Insurance Co., 74. N. J. Eq. (4 Buch.) 372.

The Hnited States court, in West v. Camden, 135 U. S. 507, lays down the same rule.

A director who does not direct is liable for his neglect of duty. Kavanaugh v. Commonwealth Trust Co. of New York (New York Supreme Court), 64 Misc. 303.

The very contract upon which the complainant relies, so far as it provides for the creation, election and maintenance of dummy directors, is contrary to every principle of the laws of this state. See v. Heppenheimer, 69 N. J. Eq. (3 Robb.) 36 (at p. 75).

For a discussion of the nullity of the acts óf dummy directors by Leonard M. Wallstein, of the New York bar, see 15 Yale L. Jour. No. 3, January, 1906.

Finally, the court of chancery had no jurisdiction to issue the injunction in question. The court assumed to exercise visitorial powers over two foreign corporations which are not parties to this suit and to regulate the management of their internal affairs.

’The phrase “internal affairs of a corporation,” as here used, is well defined in the case of North State, &c., Mining Co. v. Field, 64 Md. 151, as follows:

“Where- the act complained of affects the complainant solely in his capacity as a member of the corporation, whether it be as stockholder, director, president or other officer, and is the act of the corporation, whether acting in stockholders’ meeting or through its agents, the board of directors, then such action is the management of the internal affairs of the corporation, and in case of a foreign corporation our courts' will not take jurisdiction.”

"Tlie courts of this state do not possess such jurisdiction, and any suggestion of its assumption we emphatically repudiate.

An injunction which enjoins the directors ofta" corporation as individuals, but with respect to corporate affairs, is an in^Junction against the corporation.

We are quite satisfied again to approve of the language of Vice-Chancellor, now Mr. Justice Beed, when, in the case of Stockton, Attorney-General, v. American Tobacco Co., 55 N. J. Eq. (10 Dick.) 352, he said:

“Nor, in my judgment, is this result evaded by enjoining the officers individually instead of restraining the corporation. It is perfectly obvious that what has been done since the organization, and what is intended to be done in the future, are corporate and not individual acts. The power of the corporation to select its officers and agents in the manner prescribed by the Corporation act or permitted by law is plenary. Now, it seems a paradox to say that a- corporation can do, through its agents, what the agents cannot do. Inasmuch as corporate existence can only be manifested through its officers, and corporate privileges can only be utilized by means of agents, it is impossible to detach the corporation from those who represent it and deny to the latter what is conceded to the former. An injunction which ties the hands of the officers and agents of a corporation from transacting any corporate business is the exact equivalent of an injunction which prevents the corporation from transacting any business, which, as already remarked, is the equivalent of a judgment on quo warranto.”

It is unnecessary to analyze again the terms of the injunction in referring to its extraordinary scope and effect.

In a form, sweeping, mandatory and embodying the ingenious theory of the complainant, the injunction, while purporting not to disturb or interfere with the integrity and autonomy of the foreign corporations, but only to enjoin the individuals from | transferring property of an extensive business having its situs' in foreign states, does, in fact, substance and effect, regulate and control the internal affairs of corporations chartered by foreign sovereignties and prevents freedom of action on the part of corporations not made parties to the suit, which we have held to be distinct legal entities and controlled by foreign laws. In violation of every obligation of official duty and responsibility imposed by law upon officers and directors, it substitutes the will of the chancellor for deliberate corporate action.

Such assumption of power cannot be approved or tolerated' ¡ without a complete destruction of equitable doctrine as applied1 to corporations, and a subversion of the law affecting corporate rights, duties and relations.

As Chancellor Runyon said in Gregory v. New York, &c., Railway Co., 40 N. J. Eq. (13 Stew.) 38:

“It is almost too obvious for remark that this court cannot regulate the internal affairs of foreign corporations, nor can it enforce its decree out of this state.”

State comity is opposed to the assumption of such jurisdiction and to the usurpation by one state of the power of another over its own institutions.

The decision of the foregoing questions renders it unnecessary to discuss the other subordinate propositions raised by the briefs.

We'hold that the parties are not partners as to the corporate property, but merely stockholders in two foreign corporations, distinct legal entities; that the agreement whereby these dummy directors were bound to act in accordance with the will of the complainant and Hooper was illegal and therefore unenforceable in any court; that the whole subject-matter of the controversy relates to, and the injunction attempts to regulate, the management of the internal affairs of two foreign corporations; that the court of chancery has no jurisdiction to entertain the bill and that the injunction and all proceedings thereunder should be vacated and held for naught.

Por the reasons already given the order appealed from is reversed, with costs.

For affirmance—Hone.

For reversal—The Chiee-Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Yoori-iees, Minturn, Bogert, Yroom, Gray, Dill, Congdon—14.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The Mayor and Aldermen of Jersey City, respondent, v. Jersey City Water-Supply Company, appellant.
    [Argued November 16th, 1909.
    Decided February 28th, 1910.]
    On cross-appeals from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 74. N. J. Eq. (4. Buch.) 104.

      Mr. James J. Murphy, Mr. Warren Dixon and Mr. James B. 'Vredenburgh, for the municipality.

      Messrs. Collins & Corbin, for the water-supply company.
   Per Curiam.

Our consideration of this case has led us to the conclusion that the decree advised by the learned vice-chancellor should be affirmed, with one unimportant exception, and for the reasons set forth in his opinion filed in the cause. The particular in. which we cannot agree with Mm is his holding that in the ascertainment of the amount to be paid by the city the water-supply company should be charged with one-half the cost of constructing a fence around the land occupied by .the Boonton reservoir. The suit is brought to compel the specific performance of a contract to construct a water-supply system in accordance with full and complete plans and specifications and to convey the same to the city. The obligations of the water-supply company, with relation to the construction of the system, are fixed by the contract. The requirements applicable to the Boon-ton reservoir site are set out in great detail, but do not provide for the construction of a fence around it. The vice-chancellor considered that the provisions of the Pence act made it the duty of the water-supply company to construct a fence around the reservoir. To inject the provisions of the Fence act into the contract would be to add a term to it not agreed upon by the parties; and this, we think, a court cannot do.

Some criticism has been made upon the form of the decree. In providing what sums shall be deducted from the contract price on account of the failure to construct the water-supply plant in complete accordance with the plans and specifications, the mandate of the decree is as follows:

“There shall also be deducted from the contract price the cost of establishing intercepting sewers and drains, and sewage disposal works, capable of substantially preventing the contamination of the Bockaway river, above the Boonton reservoir, from the sewage of the city of Dover, the city of Boonton and the village of Hibernia; which cost shall hereafter be determined by the court.

“In lieu of and as a substitute for all or any of the sewers and sewage disposal works above referred to in this paragraph, the defendant company may, within ninety days from the date hereof, present other plans or devices for maintaining the purity of the water delivered by the company to the city throughout the year, under present conditions, and estimates of the cost of the works now necessary therefor; and both parties may present evidence touching the efficiency of such plans or devices to produce the necessarjr results, and the cost thereof; and the defendant company may, pending the taking of the testimony, with the leave of tire court, upon notice, present amendments and modifications of such plans and devices.”

As we read this provision of the decree, the second part of it is in modification of the first part, the purpose disclosed by it being to relieve the water-supply company from the deduction, from the purchase price, of the cost of establishing sewers, drains and sewage disposal works for the prevention of the contamination of the Bockaway river above the Boonton reservoir, provided the company is able to exhibit a less expensive plan or device for preventing such contamination, and which will insure that result; and, if the company shall succeed in doing so, then permitting the cost of the works necessary for the installation of such plan or device, instead the cost of constructing sewers, drains and sewage disposal works, to be deducted from the contract price. So read the decree seems to us to be manifestly fair and just to both parties, and to afford no ground for criticism.

The error in requiring the water-supply company to submit to a reduction in the contract price on account of its failure to construct a fence around the Boonton reservoir requires a modification of the decree and a reversal for that purpose.

For affirmance—Hone.

For reversal—Ti-ie Chief-Justice, Gaeeison, Swayze, Seed, Paekee, Bebgen, Vookhees, Mintuen, Bogeet, Vee-DENBUBGH, VKOOM, GEAY, DlLL—13.


author: Pee Cukiam.

text:
    Katharina Motz, respondent, v. George J. Motz, appellant.
    [Argued November 18th, 1909.
    Decided February 28th, 1910.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens.

      Mr. Frank F. Bradner, for the appellant.

      Mr. Nathan Xusstj and Mr. Theodore D. Gottlieb, for the respondent.
   Pee Cukiam.

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

For affirmance—Ti-ie Chiee-Justice, Garrison, Swayze, Reed, Trenci-iard, Parker, Bergen, Yoorhees, Minturn, Bogert, Yredenburgi-i, Yroom, Gray, Dill, Congdon—-15.

For reversal—None.


text:
    Congregational Church Building Society, respondents, v. Trustees of the Society of the First Congregational Church of Jersey City, appellants.
    [Argued November 18th and 19th, 1909.
    Decided February 28th, 1910.]
    On appeal from a decree of the, court of chancery advised by Yice-Chancellor Howell.

      Mr. Franlc H. IiaTl and Mr. Maximilian T. Rosenberg, for the appellants.

      Mr. Corra N. Williams and Mr. Fdward M. Colie, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion filed by Yice-Chancellor Howell in the court below.

For affirmance—The Chiee-Justice, Garrison, Swayze, Reed, Trenci-iard, Parker, Bergen, Yoorhees, Minturn, Bogert, Yredenburgt-i, Yroom, Gray, Dill, Congdon—15.

For reversal—None.


text:
    Albert C. Stephany, appellant, v. John E. Marsden et al., respondents.
    [Argued November 19th, 1909.
    Decided February 28th, 1910.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.

      Mr. Ulysses Or. Styron and Mr. Joseph E. Qaslcill, for the appellant.

      Mr. Norman Grey, for the respondents.
   Per Curiam.

The bill in this case was filed by a stockholder of the Liberty Cut Glass Works, a corporation of this state, not only on his own behalf, but “for and in behalf of said corporation, and of all other stockholders of said corporation.” The purpose of the bill as stated in the brief of counsel for the appellant, was to obtain a declaration by the court of chancery that three hundred shares of the capital stock of the corporation of the par value of $ 15-GOO, issued to certain persons called the promoters, for property transferred to the company, and which stock is now held by Marsden, was issued without value, and is held in fraud of the rights of the stockholders, and, further, to obtain a decree that the shares so issued and held were without value in the hands of Marsden, and that they should be surrendered and canceled, at least to the extent that the consideration for their issue failed.

The stock, which is the subject-matter of the controversy, was issued to Marsden, and those from whom he purchased it in October, 1902. The complainant’s bill was filed in July, 1907, nearly five years later. The proofs in the cause show that the transaction which involved the issuing of the stock, and the taking over by the company of the property for the purchase of which it was issued, was not a secret one, but was known to and understood by the complainant and his fellow-stockholders at the time that the transaction took place. No excuse for not promptly challenging the legality of the transaction appeared in the case, and the learned vice-chancellor, before whom it was heard, concluded that the long delay in the assertion of the claim set up in the bill operated as a bar to the relief sought.

Assuming that, upon a proper case made, the complainant would be entitled to a decree such as is prayed for, we think the conclusion reached by the vice-chancellor was justified on the merits. We are not, however, willing to concede the soundness of the assumption. Where stock is fraudulently issued for property purchased in excess of the value of that property, it may well be doubted whether the remedy is to compel the surrender and cancellation of the stock. Such a method of reducing capital stock is not that provided by the Corporation act; and to permit its adoption might be to seriously imperil the rights of creditors. The decision of the case against the complainant on the merits eliminates that question from the controversy, however, and we only refer to it for the purpose of guarding against the inference that, by affirming the decree under review, we affirm the right of the court of chancery to compel the cancellation of stock issued for property purchased, when the issue is fraudulently made in excess of the value of that property, provided that prompt appeal is made to the court for that purpose.

The decree appealed from will be affirmed.

For affirmance—Ti-ie Chief-Justice, Garrison, Swayze, Eeed, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, ■Vredenburgi-i, Veoom, Dill, Congdon—14.

For reversal—-None.


author: Pee Curiam.

text:
    Jeannette Ballantine et al., trustees, &c., respondents, v. Alice I. Young et al., appellants.
    [Argued November 22d, 1909.
    Decided February 28th, 1910.]
    On cross-appeals from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 7.4 •N. J. Eq. (4 Buch.) 578.

      Mr. John O. H. Pitney, for the trustees.

      Mr. Chauncey G. Parker, for the adult defendants.

      Mr. Gilbert Collins, for the infant defendants.
   Pee Curiam.

We reach the conclusion that the portions of the decree brought up by these appeals should be affirmed, for the reasons set forth in the opinion filed by the learned vice-chancellor in the court below.

A considerable part of the opinion is devoted to a discussion of the right of trustees under a will, who have invested funds of their testator in interest-bearing bonds which they have purchased at a premium, to withhold from time to time so much of the interest received as will, at the maturity of the bonds, equal the amount of the premiums paid therefor. That portion of the decree which deals with this phase of the litigation was not appealed from, and we therefore express no opinion as to the soundness of the view upon which it is rested.

For affirmance—Ti-ie Ci-iiee-Justioe, Garrison, Swayze, Peed, Trenohard, Parker, Bergen, Minturn, Bogert, Vredenburgh, Gray, Dill, Congdon—13.

For reversal—Voorhees, Vroom—2.

For affirmance—The Chief-Justice, Garrison, Swayze, Reed, Trenci-iard, Parker, Bergen, Yoorhees, Minturn, Bogert, Yredenburgh, Yroom, Gray, Dill, Congdon—15.

For reversal—None.

For affirmance—Ti-ie Ci-iiee-Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Minturn, Bogert, Yred-ENBURGH, YROOM, GRAY, DlLL, CONGDON—14.

For reversal—Yoorhees—1.


text:
    Carrie L. G. Harrison et al., appellants, v. Charles F. Axtell et al., executors, &c., et al., respondents.
    [Argued November 23d, 1909.
    Decided February 28th, 1910.]
    On appeal from a decree of the prerogative courts affirming a decree of the Morris county orphans court admitting to probate the last will and testament of Esther J. Cooper, deceased, reported in 75 N. J. Eq. (5 Buck.') 177. Sub nom. In re Cooper’s Will.

      Mr. C. Franlclin Wilson and Mr. John M. Mills, for the appellants.

      Mr. Willard W. Cutter and Mr. Charlion A. Heed, for the respondents.
   Pee Curiam.

We concur in the opinion expressed by the ordinary that the respondent Axtell fairly sustained the burden of showing that the will was not the product of undue influence, but of the full and independent judgment of the testatrix, and, for this reason, affirm the decree under review.

For affirmance—Ti-ie Chief-Justice, Garrison, Swayze, Reed, Tbenchard, Parker, Bergen, Voori-iees, Minturn, Bogert, Vredenburgh, Vroom, Gray, Congdon—14.

For reversal—Fone.


text:
    Alexander M. Farrell, respondent, v. Albert Bork, appellant.
    [Argued November 24th, 1909.
    Decided February 28th, 1910.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.

      Mr. Clarence L. Cole, for the appellant.

      Mr. Ulysses C. Styron, for ,the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated by Vice-Chancellor Learning in deciding the case in the court below.

For affirmance—The Ci-iief-Justice, Swayze, Reed, Tbenciiard, Bergeh, Voobhees, Minturn, Bogeet, Veedenbuegii, Geay, Dill, Cougdou—12.

For reversal—Garrison, Pabiceb, Vroom—3.


text:
    Estella McCarthy, respondent, v. Ephraim Cutter et al., appellants.
    [Submitted December 7th, 1909.
    Decided February 28th, 1910.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellqr Howell.

      Mr. Pairictc II. Gilhooly and ilir. Samuel Koestler, for the respondent.

      Mr. Charles Ilommann, for the appellants.
   Pee Curiam.

This is an appeal from an interlocutory decree directing the appellants, who are executors and trustees under the will of Samuel Dally, deceased, to render an account of their stewardship. Dally died in 1895. The complainant, by the terms of his will, is entitled to one-fourth of the income of his residuary estate. Fo account at all was filed by the appellants from the time of his death until the year 1903, and no account has been filed by them since the latter date. They have made but one payment to the complainant under the residuary devise to her. That payment was made in December, 1900, and amounted to $90. The right of the complainant to an accounting under these circumstances is so plain that no attempt.has been made by the appellants to support their appeal, either by printed brief or oral argument. It has practically been abandoned, and should never have been taken.

The decree brought up by the appeal will be affirmed.

For affirmance—The Chief-Justice, Garrison, Swayze, Reed, Trenohard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Gray, Dill, Congdon—15.

For reversal—None.


author: Emery, V. C.

text:
    Laura Jane Oram v. Thomas W. Oram.
    [Decided March 15th, 1910.]
    1. In a suit for maintenance by a woman against her alleged husband, evidence held to show such a prima facie case of recognition of the marriage relation with defendant after the alleged ceremony, as to entitle her to an allowance pendente lite for the expenses of her suit to establish the marriage.

      2. In a suit for maintenance by a woman against her alleged husband, where for over ten years the complainant had received no support from defendant for herself and child, and defendant denied under oath the marriage ceremony sworn to by complainant, alimony pendente Ute will be denied because of the long delay of complainant in filing the bill.
    S. Where a bill for alimony is based on an actual marriage, and, on application by the wife for temporary alimony and expenses, the actual marriage set up is denied by the alleged husband, the wife must establish, by evidence other than her own, the existence of the marriage relation. But the mere uncorroborated denial of the marriage by the defendant under oath is not of itself, .under all circumstances, sufficient to deprive the alleged wife of support until the trial, and aid in the expenses of the suit.
    4. In a suit for maintenance, an allowance of counsel fee for the purpose of aiding the wife in bringing her cause to trial may be granted, though her application for alimony be denied.
    Oil bill fox maintenance. On application for alimony pendente lile and counsel fee. Heard on bill and affidavit, answer and affidavits and rebuttal affidavits.

      Mr. Elmer'King (Messrs. Vreeland, King, Wilson & Linda-bury, solicitors), for the application.

      Mr. Benjamin W. Ellicoll, contra.

   Emery, V. C.

On a bil l for maintenance and support, application for alimony pendente lite and counsel fee is made by the wife (née Laura Jane Tyack), and calling herself Laura Jane Oram, on her affidavit of a ceremonial marriage in December, 1895, with proof of defendant’s contribution until September, 1899, toward her. support and that of her child, born in June, 1896. Hp to this time defendant, as she saj^s, acknowledged, her as his wife and the child as his, but since that time support has been refused and he has refused to live with her as his wife. At the time of the alleged marriage, the parties both lived in or near Wharton, in the county of Morris, but the marriage took place, as complainant swears, at the city of Hoboken, and was performed by Kev. Dr. Houghton, then rector of a Protestant Episcopal church, in Hoboken, the parties giving not their true full names, but being married under the names of Thomas Williams and Jane Tyack. A certificate of a marriage by persons under such names was made by the minister and is now in complainant’s possession. The marriage, as complainant says, was to be kept secret during defendant’s mother’s lifetime, and after the ceremony, the parties do not seem to have at any time lived together under the same roof as husband and wife, hut the defendant did visit complainant, after the time of the alleged ceremony, at the residence of her brother in Newark. Defendant’s affidavit in reply denies specifically the ceremonial marriage sworn to by complainant or any other marriage to complainant under the name of Williams, or otherwise. He admits contribution to her support, hut denies any acknowledgment or recognition of her as his wife at any time. He further admits that in 1898 and 1899 complainant used his name and held herself out as his wife, but says that this was done to cover.her disgrace, and that in the fall of 1899, he refused to have anything further to do with her, or to support her in any way, and challenged her to prove her marriage. Complainant’s affidavits in rebuttal, besides her own affidavit as to receiving letters and checks by defendant and addressed to her as Laura Oram, which are admitted by defendant and other circumstances showing recognition of the marriage, produces affidavits of members of her family and also of members of defendant’s family— his sister, brother-in-law and brother — all showing specific instances of the defendant’s admission of his marriage to complainant. These admissions to members of his own family were made after his mother’s death, in 1897, and before his father’s death, in 1899, and after these admissions to members of his family and up to the time of his father’s death, all of the mem- ' bers of his family, as their affidavits further state, recognized complainant as his wife, and some of them (including his father) visited complainant and her child at the house of her father, with whom she has lived since 1898. Defendant has not denied any of these statements as to specific admissions, and as to the recognition of the marriage, his case, upon this application, rests on his general denial that he ever at any time

“lived with complainant as his wife, or treated her as his wife, or introduced her as his wife, or visited her as his wife, or either publicly or privately acknowledged her as his wife, or her child as his child.”

He states that complainant, while in England (where she says her child was born), and after her return in 1897, adopted the name of Oram for herself and child to deceive the people and the public into the belief that she had been married to defendant, and inasmuch as the conversations of defendant’s sister and brother-in-law specifically inquiring as to his marriage were made because of reports they heard as to his marriage, the criticism of defendant’s counsel that the defendant’s admissions as to the marriage, set out in one or more of the affidavits, although they show admissions of a marriage, do not show a marriage to complainant, is too technical. That any other marriage than one with complainant was rumored, or was referred to or recognized by the family, must, in the situation of all the affidavits, be shown by the defendant. Besides these verbal admissions, with the family recognition following, it further appears that after the father’s death, his children, with their wives and the husband of the daughter, united in the execution and acknowledgment of a deed, and that defendant and complainant were described therein and executed and acknowledged the same as Thomas W. Oram and Laura Jane Oram, his wife.

On the entire affidavits, and in the absence of any sufficient explanation by defendant of his specific admissions of the marriage, complainant has shown such a prima facie case of recognition of the marriage relation to defendant after the alleged ceremony, as to entitle her to an allowance pendente lite for the expenses of her suit to establish the marriage. As to counsel fee and expenses of suit, the additional reason appears in the statements of defendant’s affidavit and answer, that in the fall of 1899, he refused complainant’s application for further support, basing it on his denial of their marriage, and declared that she would have to prove it in court. The complainant had then but little means and is now without means to undertake a litigation in which the truth ox falsity of her claim is to be ascertained. It would seem from defendant’s declarations made in 1899, his subsequent continued refusal to support or have any dealings with complainant, and from his present defence, that the actual marriage to complainant, on which the suit is based, is to be vigorously contested, and to prove it will probably involve on complainant’s part an expense which she personally cannot bear. A denial of means to carry on her suit might, and probably would, deprive her of the right to a trial of her claim, and in view of the status of the case as to the defendant’s admissions and acts in reference to his marital relation to complainant, she is entitled to a full hearing of the claim and to have from the defendant a contribution toward the preparation of the cause.

Alimony pendente lite must, however, be denied, because of the long delay of complainant in filing the bill. For over ten years the complainant has received no support from defendant for herself or her child, and has been supported by her own small means aided by the members of her own family. In view of defendant’s denial under oath of the marriage ceremony sworn to bjr complainant only, and also of the statement in his affidavit (which has not been denied by complainant) that in or about September, 1899, he finally refused to support her further, because he denied her claim to be his wife, and challenged her to prove the claim in court, the status as to support which has been continued for over ten years, should not be changed pending the trial of the cause.

The legal principles controlling decision on the application are, I think, clear. Where a bill for alimony is based on an actual marriage, and on application by the wife for temporary alimony and expenses, the actual marriage set up is denied by the alleged husband, the wife must establish by evidence other than her own affidavits, facts so corroborating her claim, as to make a reasonably plain case of the existence of the marriage relation, in the absence of sufficient explanation or proofs by the- alleged husband. Proof of the full or conclusive character which might be necessary on final hearing is not required, but the mere uncorroborated denial of the marriage by the defendant under oath, is not of itself and under all circumstances sufficient to deprive the alleged wife of support until the trial and aid ,in the expenses of the suit. In Brinkley v. Brinkley (1872), 50 N. Y. 184, &c., the cases and authoritie'S are fully examined. In our own courts, Vreeland v. Vreeland (Chancellor Zabriskie, 1866), 18 N. J. Eq. (3 C. E. Gr.) 43, states the general rule that where there is a controversy as to the existence in fact of the marital relation the ex parte affidavit of the wife is not sufficient for an order for temporary alimony and expenses, where the evidence on the point of marriage is conflicting and contradictory, and where there was no proof that the complainant was ever acknowledged or treated as defendant’s wife openly or publicly for any period. But the statement that where the fact of marriage is denied, cohabitation as man and wife must be proved, if intended to exclude any other kind of proof, is, I think, too broad, and, as a statement of law, was certainly obiter.

The question of the nature and effect of the alleged husband’s admissions and condact as corroborating the wife’s claim of an actual marriage depends upon the special circumstances of each case, and distinct and specific admissions of the marriage, not denied or explained bjr the defendant on the application for alimony, may, for the purposes of alimony pendente lite and counsel fee, be as effective, I think, as cohabitation. Where an actual marriage is admitted, but the lawfulness of it is questioned, other considerations may be involved, and many of the cases cited are of this character.

The allowance of counsel fee for the purpose of aiding the wife in bringing her cause to trial as one which she was entitled to present fully, while the application for alimony is denied, has been followed in other courts. Mann v. Mann, cited 2 Am. &. Eng. Encycl. L. (2d ed.) 103; affirmed, 75 N. Y. 614. In this case there was no reason for the refusal other than the doubtful outcome of the wife’s ease, and not as here the specific reasons of laches.

I will hear counsel on the amount to be allowed for counsel fee, before signing order, if desired.


text:
    Corbett Brothers Company v. Reinhardt-Meding Company.
    [Decided May 7th. 1910.]
    1. Where manufacturers of ribbons adopted a trade-mark consisting of a monogram of three letters, the form of which was necessarily liable to a certain degree of imitation in general effect, if the general form or idea of the monograms was adopted, its protection as a trade-mark must, to some extent, depend on the liability of a purchaser to be deceived on close inspection.
    2. Numbers used by manufacturers of ribbon to designate the width of the ribbon were the common property of the trade and not the subject of a trade-mark, but a series of arbitrary numbers used to indicate the precise color or shade of the ribbons and used to indicate the origin of the goods was a proper subject of protection as trade-marks against unlawful competition.
    3. Where a bill' of 'sale of the assets of a partnership included all contracts, obligations, and everything in any way pertaining to the business of the partnership, it was effective to convey tp the purchaser the partnership’s trade-marks.
    Heard on bill, answer, replication and proofs.

      Mr. Bdward Q. Kmsbey, for the complainant.

      Mr. William B. Gourlay, for the defendant.
   Emery, V. C.

The bill in this case is filed by the complainant, a company engaged in the manufacture and sale of silk ribbons, against the defendant, a company engaged in similar business, to restrain the alleged infringement of complainant’s trade-marks, and also to restrain alleged unfair competition.

Complainant company is the successor and assignee of a partnership formerly composed of four persons, one of whom was 0.. A. Reinhardt, one of the officers and organizers of the defendant company, and complainant’s claim to relief is based partly on the fact that Beinhardt’s assignment of his interest in the property and everything pertaining to the business of the firm included the trade-marks in question. Both companies manufacture a high grade of silk ribbons and sell only to jobbers or retailers, and the general style of putting up the- ribbons for sale in the market, and designating the manufacturer, and also the kind, quality and color of the ribbons, is one adopted by all manufacturers, and is substantially as follows:

The ribbons are rolled or -wound upon cylindrical blocks about two inches in diameter, of the various widths or thickness required, and when so wound are called “bolts.” Both sides of the circular block on which the ribbons are wound are covered with paper, and upon these are shown within a large circle the marks or signs indicating the manufacturer, the general style or character of ribbon, the pattern of the ribbon, the width, and also the color. The style of ribbon is usually indicated by descriptive words, such as “belting,” “satin taffeta,” &e., and the pattern or weave of ribbon, bjr the word “pon,” meaning pattern, followed by a number — each manufacturer having his own numbers for his patterns. The manufacturer of the goods is directly indicated by a trade-mark proper in the centre of the label, on the same side with the above marks. In the case of both parties to this suit, it is a small monogram in the centre of the label, and in each case composed substantially of three principal letters superimposed; in complainant’s monograni the letters C. B. C.; in the defendant’s, B. M. C. In both of the monograms the letter “0” has a striking elongated shape; the letter “B” of one and “B” of the other occupy similar positions with reference to the elongated “0.” The letter “M” worked into the centre of defendant’s monogram is unlike anything in complainant’s monogram, and is sufficient to distinguish it, on a careful inspection, if such test is important in the ease. The question of similarity is one to be decided in this case mainly by inspection, for both parties sell to jobbers or retailers, and not to the public, and there is no evidence that the jobbers or retailers have been, or are likely to be, deceived into purchasing defendant’s goods for complainant’s by any similarity in the monograms. There is undoubtedly a general similarity in the monograms, and some difficulty, perhaps, for the average person in deciding, without a rather careful inspection, which of the two monograms'is on the label, but this is the result, I think, of the adoption by both parties of the small monogram of three letters, a form which either party was at liberty to adopt. It is a form of trade-mark which, I think, was necessarily liable to a certain degree of imitation in general effect, if the general form or idea of the monograms was adopted, and its protection as a trade-mark therefore must, in a case of this kind, to some extent, depend upon the liability of a purchaser to be deceived on close inspection. In reference to the use of the monogram, I conclude upon the whole evidence that a case of violating trade-marks or of unfair competition has not been made out. In reference to another part of the label, however, the complainant has, in my judgment, made out a case for relief. This relates to the use by the defendant on its labels of the same color numbers adopted by complainant to indicate the colors of the ribbons. These numbers are on the reverse side of the label, on which are also the numbers indicating the widths of the ribbon. The numbers designating the width are descriptive and are common property in the trade, but each manufacturer has usually his own set or series of numbers to indicate the precise color of the ribbons. These numbers are arbitrarily selected by each manufacturer, and they usually adopt a series of successive numbers for the different shades of a color, e.'g., in complainant’s case, hTos. 1, 2 and 3, successive shades of white; 10 to 13, shades of pink; 15, &c., shades of blue; 45, &c., shades of indigo.

It appears by the evidence on both sides that in the manufacture and sale of ribbons, the continuance and reproduction of uniform shades is very important and is secured by the use of great skill and care. ' The standard of color for the ribbon (designated by the arbitrary number) is obtained by preserving a skein of the silk dyed to the color, which skein is carefully wrapped in paper, protected from the light, and is marked by the arbitrary number. The subsequent dyeings, when the same color is ordered or desired, are carefully compared in the skein with the standard color skein and by one or more experts in colors, and approved or redyed, as the. case may be. Many of the colors to which these arbitrary numbers are fixed are standard colors, such as pinks, blues, greens, and so forth, and the successive numbers usually indicate different shades. These color numbers adopted by each manufacturer are made known to the retailers and jobbers by what are called color cards, giving samples of the different colors, with the color numbers on them. In ordering ribbons from the manufacturer, the color desired is usually, if not always, indicated on the order itself by the manufacturer’s color number.

These arbitrary color numbers adopted for this purpose and so used on the labels of each manufacturer put on the bolts of ribbons, are intended to indicate, and do indicate, I think, the origin of the goods sold and the manufacturer, and come strictly within the protection of trade-mark rights. Numbers arbitrarily selected when used for this purpose are valid trade-marks. American, &c., Leather Co. v. Anthony (R. I., 1886), 5 Atl. Rep. 626; Shaw Stocking Co. v. Mack (Judge Cox, 1883), 21 Blatchf. 1. In Ransome v. Graham, 51 L. J. Ch. (N. S.) 897, a series of combination of letters applied to indicate the origin of goods, was protected as a trade-mark, although they also indicated quality or patterns. In Humphreys Specific, &c., Co. v. Wenz, 14 Fed. Rep. 250 (Chief-Justice Nixon), a series of numbers used in connection with the name “Humphreys Specifics,” each number designating a particular kind of medicine, was protected as a trade-mark. The use of such portion of a defendant’s label or mark on its goods as is part of a complainant’s trademark may be enjoined. Eureka Fire Hose Co. v. Eureka Rubber Mufacturing Co., 69 N. J. Eq. (3 Robb.) 159; affirmed on appeal, 71 Atl. Rep. 1134; 71 N. J. Eq. (1 Buch.) 300.

The color numbers now used by complainant, as to which it applies for protection, were originally adopted by a partnership, Corbett, Reinhardt & Company, composed of the Corbett Brothers, Edgar M. and Robert S., Frank A. Reinhardt and one Horandt, and were arbitrarily selected, and for the purpose of having color numbers distinct from those of other manufacturers. On March 2d, 1907, Reinhardt, by bill of sale and for the sum of $40,000, conveyed to the two Corbett Brothers all his right, title and interest as partner or otherwise, in the goods and chattels, rights, effects and property of any kind belonging to the firm, and on March. 9th, 1907, the three remaining partners, by bill of sale, conveyed to the complainant company the partnership property, including, among other things, “all contracts, obligations and everything in any way pertaining to the business of the partnership.”

The transfers were effective to convey to the complainant the trade-marks of the partnership, and if the color numbers are part of the trade-marks, the use of them by defendant company is an infringement of complainant’s property rights derived under the two bills of sale.

The former partner Reinhardt, subsequent to these transfers, organized the defendant company and used in the business of the new company and for the same purpose, the color .numbers originally adopted by the firm Corbett, Reinhardt & Company, so far as the defendant company took up the manufacture of ribbons of the same color, and the evidence shows that the adoption of the same series of color numbers was deliberate and intentional and made under the belief or claim that complainant had no right to the exclusive use of the color numbers to indicate its goods, and that the use of the color numbers did not constitute any trademark or property right.

In my judgment, the color numbers being used to indicate the origin of the goods, are entitled to the protection of trade-marks, and I dispose of the case on this ground, without considering the further question as to whether the use of the color numbers, either alone or in connection with the monogram on the label, was not, under the evidence, unfair competition against which complainant is entitled to relief. I conclude that complainant is entitled to an injunction restraining the use of the series of color numbers adopted by complainant to mark the same or similar colors of ribbons manufactured by defendant. The colors indicating “white,” Nos. 1, &e., are, however, not to be included, as it appears that many manufacturers use this same series.

On settlement of decree application may be made to specify the color numbers as to which the injunction is to go. The complainant asks a decree for account, and application therefor may also be made at the settlement of the, decree.


text:
    Edward Kayhart, executor of Wilbur Kayhart, deceased, v. Adeline Whitehead et al.
    [Decided May 7th, 1910.]
    1. Where such is the intent of the will, the words “heirs” and “devisees” will be deemed to mean “legatees” when applied to gifts of personalty, and hence where gifts to certain persons were gifts of personalty or interests therein, but the gifts were given in terms “I give and devise,” and the words “devise” and “devisees” were clearly used in the granting clauses of the will as intending to cover interests in personalty and the recipient of such interest, the recipients thereof will be deemed “devisees” within a provision of the will that, if any of the devisees should aid or attempt to prevent the proof of the will, all the expenses of probating it should be taken by the executor from the share of each one so attempting.
    2. A provision in a will that if any of the devisees shall aid in an attempt, or attempt to, prevent the proof of the will, the expenses of probating it shall be taken from their shares thereunder, is valid.
    3. Evidence held to show that certain beneficiaries aided the caveator in an attempt to prevent probate of a will so as to bring them within a provision therein that, if any of the devisees should aid in an attempt to prevent proof of the will, the expenses of probating it should be taken from their shares thereunder.
    4. The filing by a beneficiary under a will of an appeal to the prerogative court from a decree of the orphans court, admitting the will to probate, was of itself an attempt to prevent the probate of the will, inasmuch as the jurisdiction of the prerogative court over the- probate of wills is original, and upon filing of such appeal the question for decision is not the propriety of the decree below, but the right to the probate of the will; the question being triable de novo on the same evidence heard in the lower court or on additional evidence, and the effect of the appeal being to stay the probate so long as the appeal continues.
    5. The orphans court may include counsel fees as part of the costs and expenses of the probate of a will which is contested.
    Heard on bill, answers, replication and proofs in open court.

      Mr. Charles A. Rathbun, for the complainant.

      Mr. Elmer King (Messrs. Vreelmd, King, Wilson & Lindar bury, solicitors), for the defendants.
   Emery, V. C.

The bill in this case is filed by an executor, who is also 'the residuary devisee and legatee, against four legatees, to recover or retain from their legacies-the expenses of the probate of the testator’s will. The amount paid was $4,648.32, and was paid by the executor out of the estate, under the order of the orphans court of Morris county, which admitted the will to probatfe in contested proceedings upon a caveat filed by George Decker, one of the four legatees, and after the dismissal for want of prosecution, of an appeal to the prerogative court from the decree admitting to probate, the appeal being filed by the defendant Mrs. Adeline Whitehead, a daughter of testator, and also a legatee. The right of the executor to recover is based on the provision in the will which follows the several devises and legacies:

“Seventh. If any of my devisees shall file a caveat against this my Last Will and Testament, or in any other manner, aid, assist, or attempt to prevent the proof of my said will, then I do order that all the expenses of probating my said will be taken by my executor from the share of such one, or ones, as shall file such caveat, or attempt to prevent the proof of this my will.”

The word “children” was erased in the will as originally written and the word “devisees” interlined before execution. By his will, clause third, the testator “gave and devised” to his daughter, Adeline Whitehead, $2,000 absolutely, to be selected from his bonds and mortgages, and the further sum1 of $8,000 also to be selected from said bonds and mortgages, to be held in trust by his executor, to keep invested and pay her the interest during life, and at her death to be divided between her children which survive her. She had two children living at testator’s death, and still living, viz., Grace Conklin and Jennie Conklin, both of whom are defendants. To Grace Conklin, his granddaughter, testator also “gave and devised” a house and lot, if not sold by him, but the same was sold and the devise did not take effect. To George Decker, a grandson, and the remaining defendant, the testator “gave and devised” $100.

On behalf of the defendants, two legal objections are made to the enforcement of the provision of the will against them — first, that they are not “devisees,” but “legatees,” and are therefore not within the provision, and second, that if applicable to them as legatees, the provision is nugatory. Neither objection is well founded; the first, because it is well settled that where such is the intention of the will, the words “heirs” and “devisees” are held to mean “legatees,” when applied to gifts of personal property. Akers v. Akers (Chancellor Zabriskie, 1872), 23 N. J. Eq. (8 C. E. Gr.) 26, 31; Welsh v. Crater (Chancellor Runyon, 1830), 32 N. J. Eq. (5 Stew.) 177, 180; affirmed on appeal, 33 N. J. Eq. (6 Stew.) 362.

All of the gifts to the several defendants which took effect were gifts of personal property or interests therein, and the defendants were, therefore, in a strictly legal and technical sense, “legatees,” rather than “devisees,” but the gift to each of them was made by the terms “I give and devise,” and the words “devise” and “devisees” were plainly used in the granting clauses of the will as intended to cover interests in personal property and the recipient of such interest. If in the granting clause the defendants’ interests were intended to be included by the testator as a “devise,” it would seem to be impossible to hold that the condition of receiving the “gift and devise” was not equally well imposed on them by the description of “devisees.”

The second objection, that the provision imposing penalty ox-condition, is void or ineffective, has beexx decided adversely to defendants’ contentioix by the court of errors and appeals in Hoit v. Hoit (1886), 42 N. J. Eq. (15 Stew.) 388. In that case a provision “that if any or either of my children shall enter a caveat against this xny will, he or they shall pay all expenses of both sides,” was held valid against a devisee of real estate, not only as a valid condition subseqxxent for revocation, but on the broader equitable ground that a person aceeptixxg a bexxefit under the will mxxst adopt the will as a whole and conform to all its provisions. And the x-ule was enforced iix this case, although it appeared that in the opinion of the probate court the devisee had reasonable cause for contest, and all expexxses on both sides were, as in the present case, ordered to be paid by the executor out of the estate. Repayment by the devisee of these expenses was decreed upon the bill.

George Decker, by whom the original caveat was filed, does not contest this suit, and the principal issue of fact is, whether either or both of the contesting defendants, Mrs. Whitehead or Grace Conklin, did aid, assist or attempt to prevent the probate of the will. It was admitted at the hearing that there is no proof against the defendant Jennie Conklin. It appears by the evidence of Mrs. Whitehead and Grace Conklin that both of them conferred with George Decker, the caveator, and aided or assisted his solicitors of record in the matter of securing or seeing witnesses. The fair conclusion from Mrs. Whitehead’s own evidence, as to her connection with Decker’s contest, is that either in commencing or continuing the .contest, Decker received an assurance or promise from her that if the executor did not pay his legacy of $100, she would be willing to make him a present of it, and that some kind of writing, not now produced, was drawn in connection with this assurance. But the decisive proof of Mrs. .Whitehead’s participation in the orphans court proceedings against the probate, is the evidence that on the argument of the case in open court which she attended, Irving E. Salmon, who had hitherto appeared formally in the proceedings only as one of several of the counsel for George Decker, the formal caveator, announced to the court that he appeared to argue on behalf of Mrs. Whitehead, against the admission of the will to probate. The statement as to whom he represented seems to have been made at that time, because of an inquiry then made by the court, for the purpose of having the appearances then made a matter of record.

Mrs. Whitehead heard the statement of her counsel, and by reason of it, had the benefit of his argument in her favor against the will. By this appearance on her behalf, she became a party to the proceedings and entitled to be heard. Bioren v. Nesler (Vice-Ordinary Walker, 1909), 76 N. J. Eq. (6 Buch.) 576. On the decree granting the probate, the record recited that counsel (naming them) appeared and were heard for Decker, the caveator, and for Adeline Whitehead and Grace Conklin, persons interested, and the counsel fees of $2,000 allowed was divided into two sums of $1,000 each, one to be paid to the solicitors of the caveator, Decker, and Joshua B. Salmon, the other to Messrs. Beed and Salmon (of which Mr. Irving E. Salmon, now deceased, was a member), and Mr. Stilwell, jointly. These were made as allowances to the counsel of “respondents,” and I think there can be no question that the court in making the allowances acted on the faith of the statements made by Mr. Irving E. Salmon that he appeared on behalf of Mrs. Whitehead. Decker was a young man of no means, and although it was greatly to his pecuniary advantage that the will should be refused admission to probate, yet he appears to. have taken but little personal charge of the litigation, and the course of the trial and proceedings, as well as the evidence in this suit, show, I think, that both Mrs. Whitehead and Mrs. Conklin did aid and assist him in the attempt to prevent the probate of the will by proceedings under the caveat.

As to Mrs. Whitehead, the filing by her of an appeal to the prerogative court from the decree of the orphans court admitting the will to probate, was also, and of itself, “an attempt to prevent the probate of the will.” This results from the nature and effect of such appeal, under our probate system. The jurisdiction of the prerogative court in relation to the probate of wills, is an original jurisdiction and not merely appellate, and upon the filing of such appeal against the decree of the orphans court admitting to probate a disputed writing, the question for decision in the prerogative court is, not the propriety of the decree below, but the right to the probate of the will. The question of the probate comes up de novo and may be heard in the prerogative court on the same evidence as below, or on additional evidence. Rusling v. Rusling (Court of Errors and Appeals, 1883), 36 N. J. Eg. (9 Stew.) 603, 606; Sanderson v. Sanderson (Ordinary McGill, 1893), 49 N. J. Eq. (7 Dick.) 243, 245. And the effect of the appeal was to stay the probate and issuing of letters testamentary thereon so long as the appeal continued. To^this extent, the appeal was as effective against the probate as the filing of the original caveat.

A question was also raised as to whether counsel fees were “costs and expenses” of which the orphans court had the right to direct payment, but this right has been settled in Bioren v. Nesler, supra, and the eases therein relied on.

The legacies to these three defendants will therefore be declared to be held subject to the repayment of the expenses paid on the probate by the direction of the probate court. As to the apportionment of the same between the several defendant legatees, counsel will be heard on the settlement of the decree.


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    Ellis P. Earle v. National Metallurgic Company et al.
    [Decided May 13th, 1910.]
    1. Where a mortgage is executed under the seal of a corporation and signed by its vice president, the burden of -showing invalidity because of the lack of an authorizing resolution of the 'directors is on the party asserting the fact.
    2. A corporation cannot attack the execution of a mortgage because of the absence of proof of a formal authorizing resolution of the directors where it had received and used the entire consideration paid to it on the faith of the mortgage.
    3. Where a corporation’s mortgage was conditioned for the payment of any and all sums due to the mortgagee, together with interest thereon up to the aggregate of $75,000 and interest, and all renewals or extensions thereof, whether represented by notes or otherwise, and the affidavit accompanying it stated that the notes were subject to four renewals for four months each, the affidavit did not limit the lien to any specific number of renewals, but only disclosed the extent to which there was an agreement, so that the mortgage covered all renewals of the debt without reference to the'number.
    4. Where a chattel mortgage is attacked by the mortgagor’s trustee in bankruptcy in the state court, for want of proper registration, the defence is not available unless pleaded in connection with an allegation that the trustee represents creditors within the class authorized to avoid a mortgage on that ground.

      5. Bankruptcy act, July 1st, 1898, ch. 541 § 70a(5), 30 Btat. 565 (U. S. Gomp. St. 1901 p. 8451), vests in the trustee in bankruptcy title to all property of the bankrupt which, prior to the filing of the petition, might have been levied on and sold by judicial process against him.— Held, that such section entitles the trustee, if representing creditors, to attack the validity of chattel mortgages on property which under the state statutes, could have been levied on by creditors.
    6. Under 2 Gen. Stat. 1895 p. 2334 § 5, declaring that a recital in the jurat or certificate that an officer taking an affidavit in a foreign state is a notary, and his official designation annexed to his signature and attested under his official seal, shall be sufficient proof that he was a notary, an affidavit signed, “Richard T. Greene, Notary Public, N. Y. Co.,” sufficiently showed prima faeie that it was executed before a notary public.
    7. Under section 2 of the act (2 Gen. Stat. 1895 p. 2333) regulating-affidavits taken before notaries, expressly abolishing the necessity of a seal for certifying affidavits taken within the state, an affidavit purporting to have been taken in New York county, New York, and certified to have been subscribed and sworn to before one who subscribed himself as notary public of New York county, was not defective in New Jersey fox-want of a seal.
    On bill of foreclosure. Heard on bill, answer, replication and proofs.

      Mr. Frederick J. Faulks (Messrs. Lindabury, Depue & Faulks, solicitors), for the complainant.

      Messrs. McCarler & English, for the defendant Perkins, trustee in bankruptcy.
   Emery, V. C.

Complainant’s bill is filed against the National Metallurgic Company, a bankrupt corporation, and its trustee in bankruptcy, to foreclose a chattel mortgage on personal property of the bankrupt in the possession of the trustee. The corporation makes no defence, but the trustee, in his answer, denies the validity of the execution of the mortgage, and also that the mortgage is a lien on the property.

The bill alleges that the mortgage, with a proper affidavit annexed, as required by the registry acts, was duly recorded, but the answer, while putting complainant to its proof of this allegation, does not expressly deny the validity of the recording, or set up as a defence to the mortgage any failure to comply with the recording acts, either as to the affidavit or otherwise. At the hearing, however, the validity of the record of the mortgage was attacked by the trustee upon the ground that the affidavit attached was not properly taken or certified under the statute, and it was insisted that the trustee in bankruptcy was, for this reason, entitled to avoid the mortgage as void against creditors. The adjudication of bankruptcy and the appointment of the defendant Perkins as trustee, is admitted by the pleadings, but at the hearing no proof was made that any debts had been proved or claims allowed in the bankruptcy proceedings.

The undisputed proofs show that the mortgage was executed and delivered to complainant on or about October 12th, 1905, to secure advances and loans of money to be made by the complainant to the company, to the extent of $75,000, and that such advances and loans were afterwards made to that amount by the complainant, relying on the security of the mortgage. The mortgage was executed under the seal of the company, and signed in the company’s name by King, the vice president and general manager, and the seal was attested by one Elderling, the treasurer. King, by Ms affidavit attached to the mortgage, deposed to the corporate seal and that it was affixed by authority of the board of directors, and that he signed as vice president by like authority. Ko resolution of the board of directors authorizing the execution has been proved, and it is now claimed by the trustee that the mortgage is invalid as a lien upon the property of the company purporting to be covered by it, because it was not authorized by a resolution of the directors." Prima facie, the mortgage being executed under the seal of the company and signed by its vice president, is valid, and where prima facie valid, the burden of showing clearly in any case that the seal was affixed without the authority of the directors, is upon the defendant. Leggett v. New Jersey Manufacturing and Banking Co. (Chancellor Vroom, 1832), 1 N. J. Eq. (Saxt.) 541, 553. Such clear negative proof has not been made here, and in this case, it is further proved that the company, after the execution of the mortgage, and on the faith of it, received the entire consideration of the mortgage. Under these circumstances, the company cannot dispute the execution of the mortgage because of absence of proof of formal resolution of the directors. Hackensack Water Co. v. DeKay (Court of Errors and Appeals, 1883), 36 N. J. Eq. (9 Stew.) 548, 553; Reed v. Helois Carbide, &c., Co. (Vice-Chancellor Pitney, 1902), 64 N. J. Eq. (19 Dick.) 231, 238; Schultze v. Van Doren (Vice-Chancellor Pitney, 1903), 64 N. J. Eq. (19 Dick.) 465, 467.

A second defence is set up by the trustee to the assertion of any lien upon the property under the mortgage. The mortgage was conditioned for the pajrment of

"any and all sums of money due or owing by the company to Earle, together with interest thereon up to the aggregate of $75,000, and interest, and any and all renewals and extensions thereof, whether the same be represented by promissory notes or otherwise.”

The affidavit to the mortgage states that the notes representing the loan (which ran for four months) were subject to four renewals of four months each, and continued for the full term of twenty months from the date of the mortgage. The notes, or some of them, not being paid at the end of the twenty months, and being then renewed, it is claimed that the lien of the mortgage does not extend to the renewals. There is no substance in this objection. The mortgage lien expressly covers all renewals, and the affidavit does not limit the lien to any specific number of renewals, but only discloses the extent to which, at the time-the mortgage was given, there was an agreement to renew.

The remaining objections to the mortgage relate to its validity as against creditors under tire Registry act, and as to these objections, the preliminary points are made on behalf of the complainant — first, that this defence cannot be heard because it has not been specially set up and proved, and second, that the trustee in bankruptcy stands in the place of the company itself, as to whom the registry is not necessary to the validity of the mortgage.

The first point seems to be well taken, and to be sustained by two decisions of the court of errors and appeals. National Bank of Metropolis v. Sprague (1870), 21 N. J. Eq. (6 C. E. Gr.) 530, 543; followed in MacFarlane v. Richardson, 56 N. J. Eq. (11 Dick.) 191, 192; affirmed on appeal, for reasons stated (1898), 57 N. J. Eq. (12 Dick.) 346. As to the second point, the objection is not well founded. The Bankrupt act, section 70a (5), vests the trustee in bankruptcy with the title of the bankrupt to all the property of the bankrupt, “which, prior to the filing of the petition, * * * might have been levied on and sold by judicial process against him.” This section, as construed by the federal supreme court, the final authority, entitles the trustee, if representing creditors, to attack the validity of the chattel mortgages, which, under the statutes of the state, could have been levied on by creditors. Security Warehousing Co. v. Hand, 206 U. S. 415; Knapp v. Milwaukee Trust Co. (October Term, 1909), Adv. Sheets Sup. Ct. Rep. 412, 415. In this state creditors could have levied on the property if the mortgage was not recorded under the act. I think, however, that if the mortgage is attacked on these grounds in the state court, the trustee, as to the pleadings and proofs essential to raising the defence, is subject to the rules of pleading and evidence in the state courts, and that under our practice, the defence is not available to the trustee, unless by the allegations of his pleadings he brings himself, as representing creditors, within the class as to whom the statute avoids the mortgage, and also proves at the hearing that there are creditors whom he represents as to whom the mortgage is invalid. The rule in this state is that as to some of the creditors represented by a receiver, the unrecorded mortgage may be valid, while as to others it is void. Roe v. Meding (Court of Errors and Appeals, 1895), 53 N. J. Eq. (8 Dick.) 350, 369.

Assuming, however, that the trustee in bankruptcy is entitled under the present pleadings and proofs to question the validity of the mortgage because of failure to comply with the recording acts, this question may be considered. The objection is that the affidavit docs not comply with the Chattel Mortgage act and the act relating to oaths and affidavits, in that it appears to have been taken before a notary public in another state, and the jurat or certificate of the notary is defective in that no official seal is attached. The affidavit of the mortgagor taken as in “State of New York, county of New York, ss.,” is certified “Subscribed and sworn to before me this 13th day of October, 1905, Eichard T. Greene, Hctary Public, H. Y. Co.” As to the jurat or certificate to an affidavit taken before a notary public of another state, the act relating to “oaths and affidavits” provides (Gen. Stat. p. 2334 § 5):

‘‘that a recital that he is such notary in the jurat or certificate of such affidavit, and his official designation annexed to his signature, and attested under his official seal, shall be sufficient proof that the person before whom the same is taken is such notary.”

But in Magowan v. Baird (Court of Errors and Appeals, 1895), 53 N. J. Eq. (8 Dick.) 656, 658, it was expressly decided that this provision, as to the evidence, which should be sufficient proof, did not invalidate jurats or certificates which, although they did not contain these recitals, were still, on general principles of law, prima facie sufficient, although they might be subject tó be disproved, and the certificate to an affidavit subscribed by the notary with his official designation and seal was held to be prima facie sufficient, although the recitals specified in the above section were omitted from the certificate. Under this decision, the jurat subscribed by the notary in the present case is prima facie sufficient to bring the affidavit within the statute, unless it be necessary to the verification of a foreign notary that the official seal of the notary be affixed. This point was not involved in the Magowan-Baird Case, as the official seal was annexed. The venue of the certificate “State of New York, county of New York,” is sufficient prima facie evidence that the notary was acting in that county in subscribing the jurat. And in reference to the necessity of using a notarial seal on a jurat or certificate made by a notary in the State of New York, in order to make it valid in this state, my conclusion is that it is not now necessary. The requirement of an official seal for certifying affidavits taken by notaries public in this state, is expressly abolished by section 2 of the act. This is an express statutory declaration of the rule or policy of this state in reference to the necessity of certification of documents of this character under the official seal of a notary, and as the only basis for the previous requirement of a seal was the recognition by this state of the general rule, that a notary public, an official recognized by all states and nations of the commercial world, in certifying his acts, whether in this state or elsewhere, affixed an official seal, the withdrawal of this requirement in this state, as to a particular act or document, changes, so far as this state is concerned, and so far as such documents are concerned, wherever executed, the operation of the general rule recognizing the seal as essential.

Decree will he advised declaring the chattel mortgage a lien upon the mortgaged chattels in the trustee’s possession, and for sale of the same to pay the amount due, which may be fixed on settlement of decree.