text:
    The Jersey City Printing Company v. James Cassidy et al.
    [Filed December 11th, 1902.]
    ' 1. The right of workmen to combine and to cease their employment in a body is as absolute as the right of an employer to discharge any number of men in his employment.
    • 2. Union workmen have the right to strike on the employer’s refusal to discharge non-union men in his employ.
    . 3. Employers, where third^ parties interfere with their employes against the latter’s consent and endeavor, by threats or persuasions, to have the employes under contract to render service break their contract and quit the service, have a right to an injunction to restrain such third persons from so interfering with their employes.
    ' 4. Employers, where third persons interfere with persons willing to be employed, against the latter’s consent, by personal molestation, with intent to coerce such persons to refrain from entering such employment, and by personal annoyance, have a right to an injunction to restrain such third persons from so interfering with the persons seeking employment, such interference being an invasion of the right of employers to have labor flow freely to them.
    5. An injunction order, granted on the filing of a bill for an injunction by an employer against his former employes, restraining the latter from interfering with other men employed under contract or with men willing to work, will not be set aside on the hearing of a motion on ex parte affidavits, but will be continued until final hearing.
    On motion, on older to show cause, for an injunction to restrain defendants, former employes of the complainant, and now on strike, from unlawful interference with the complainant’s business, the employment of workmen, &c. Heard on bill, answer and affidavits.
    Hpon filing the bill an order was made restraining the defendants
    “from in any manner knowingly and intentionally causing or attempting to cause by threats, offers of money, payment of money, offering to pay 'or the payment of transportation expenses, inducements or persuasions to any employe of the complainant under contract to render service to it to break such contract by quitting such service; from any and all personal molestation of persons willing to be employed by complainant with intent to coerce such persons to refrain from entering such employment; from addressing persons willing to be employed by complainant against their will and thereby causing them personal annoyance with a view to persuade them to refrain from such employment; from loitering or picketing in the streets near the premises of complainant, Nos. 68 and 70 York street, and No. 37 Montgomery street, Jersey- City, with intent to procure the personal molestation and annoyance of persons employed or willing to be employed by complainant and with a view to, cause persons so employed to quit their employment, or persons willing to be employed by complainant to refrain from such employment; from entering the premises of complainant, Nos. 68 and 70 York street, Jersey City, against its will with intent to interfere with its business; from violence, threats of violence, insults, indecent talk, abusive epithets practiced upon any persons without their consent with intent to coerce them to refrain from entering the employment of complainant, or to leave its employment.”

      Mr. George G. Tennant, for the complainant.

      Mr. John J. Fallon, for the defendants.
   Stevenson, Y. C.

(orally).

The bill is filed to restrain a body of workmen, who are on a strike, and other persons associated with them, from doing certain things which are alleged to be injurious to the complainant, their former employer. The things that they are restrained from doing are specified in the restraining order. That order was not made hastily. It was formulated with care on the part of the court, and I do not understand that counsel for the defendant criticises its terms on the ground that they are too broad. The defence is that the persons who are enjoined have not been doing, and are not threatening now to do, any of those things that are interdicted. That is the sum and substance of the defence, which has been presented by a great many affidavits and with very great force.

The order does not interfere with -the right of the workmen to cease his employment for any reasons that he deems sufficient. It does not undertake. to say that workmen may not refuse to be employed.if certain other classes of workmen are retained in employment. It leaves the workman absolutely free to abstain from work—for good reasons, for bad reasons, for no reasons. His absolute freedom to work, or not to work, is not in any way impaired. The restraining order is based upon the theory that the right of the workman to cease his employment, to refuse to be employed, and to do that in conjunction with his fellow-workmen, is just as absolute as is the right of the employer to refuse further to employ one man, or ten men, or twenty men who have theretofore been in his employment. From an examination of the cases and a very careful consideration of the subject I am unable to discover any right in the courts, as the law now stands, to interfere with this absolute freedom on the part of the employer to employ whom he will, and to cease to employ whom he will; and the corresponding freedom on the part of the workman, for any reason or no reason, to say that he will no longer be employed; and the further right of the workmen, of their own free will, to combine and meet as one party, as a unit, the employer who, on the other side of the transaction, appears as a unit before them. Any discussion of the motives, purposes or intentions of the employer in exercising, his absolute right to employ or not to employ as he sees fit, or of the free combination of employes in exercising the corresponding absolute right to be employed or not as they see fit, seems to me to be in the air.

Thus, there is a wide field in which employes may combine and exercise the arbitrary right of “dictating” to their common employer “how he shall conduct his business.” The exact correlative of this right of the employe exists, in an equal degree, in the employer. He may arbitrarily “dictate” to five thousand men in his employ in regard to matters in respect of which their conduct ought, according to correct social and ethical principles, to be left entirely free. But if the “dictation” is backed up solely by the announcement that, if it is not submitted to, the dictating party will refrain from employing, or refrain from being employed, as the case may be, no legal or equitable right belonging to the party dictated to, which I am able to discern, is thereby invaded.

Some of the expressions which I have used, and which are commonly used, in relation to this subject seem to me to be misleading. Union workmen who inform their employer that they will strike if he refuses to discharge all non-union workmen in his employ are acting within their absolute right, and,, in fact, are merely dictating the terms upon which they will be employed. All such terms necessarily relate both to “how the employer shall conduct his business” and how the employes shall conduct their business.

The doctrine of the old eases, of which we have in New Jersey an interesting example in State v. Donaldson, 3 Vr. 151, which placed the employe, when acting in combination with his fellow-workmen, at a tremendous disadvantage as compared with his employer, I'think may be regarded as entirely exploded. The authority of the deliverances of the supreme court in’ State v. Donaldson was largely, if not entirely, abolished by statute in 1883.

The principles which I have endeavored to state are all recognized in the restraining order in this case, and are so plainly recognized that the intelligent and industrious counsel for the defendants is unable to point out any respect wherein the terms of the order should be modified. The things which the restraining order interdicts are things which, for the purposes of this argument, it is practically conceded the defendants have no right to do.

In this situation of the case it would seem to be unnecessary to further consider the legal propriety of the restraining order, much less to take it up clause by clause. I have, however, pointed out what conduct on the part of the defendants is excluded from the operation of this order, and I think that it is fair to all the parties to this suit who are concerned in the maintenance of the restraining order to explain, at least in a general way, what conduct is included within its prohibition. This can be most conveniently done by making plain the most important principles embodied in the order—principles which practically have been developed by the courts of this country and England during the last five or ten years.

The injunction in strike and boycott cases is of very recent use. ■ Already a wide difference of opinion has been developed among judges in regard to the liability of a combination of workmen to actions at law for damages and suits in equity for an injunction.-

It is only very recently, I think, that one of the most important rights which now are vindicated by the injunction in a strike case has been differentiated; in many cases it has been apparently half recognized or indirectly enforced.

That the interest of an employer or an employe in a contract for services is property is conceded. Where defendants, in combination or individually, undertake to interfere with and disrupt existing contract relations between the employer and the employe, it is plain that a property right is directly invaded. The effect is the same whether the means employed to cause the workman to break his contract, and thus injure the employer, are violence or threats of violence against the employe or mere molestation, annoyance or persuasions. In all these cases, whatever the means may be, they constitute the cause of the breaking pf a contract, and consequently they constitute the natural and proximate cause of damage. The intentional doing of anything by a third party which is the natural and proximate cause of the disruption of a contract relation, to the injury of one of the contracting parties, is now very generally recognized as actionable, in the absence of a sufficient justification, and the question, in every case, seems to turn upon justification alone.

Where the tangible property of an employer is seized or directly injured by violence, with intent to interfere with the carrying on of his business, the case, also, is free from embarrassment.

In the case of Frank v. Herold, 18 Dick. Ch. Rep. 443, Vice-Chancellor Pitney amply discussed the whole subject of the unlawfulness of molestation and annoyance of employes, with intent and with the effect to induce them to abandon their employment, to the'injury of their employer’s business.

But the difficult case presents itself when the workmen in combination undertake to interfere with the freedom of action on the part of other workmen who naturally would seek employment where they (the workmen in combination) desire and intend that no man shall be employed excepting upon their terms.

The difficulty is in perceiving how molestation and annoyance, not of the employes of a complainant, but of persons who áre merely looking for work and may become employes of the complainant, can be erected into a legal or equitable grievance on the part of the complainant. But the difficulty is still further increased where the possible employes make no complaint to any court for protection, and the conduct of the molesting party does not afford a basis which the ancient common law recognized as sufficient to support an action of tort on their behalf, such as for an assault and battery or a slander. Abusive language is not necessarily actionable at the common law. If to call a man a “scab” in the street or to follow Mm back and forth from his home to his place of employment was formerly not actionable on behalf of the victim of this petty annoyance, the problem is to understand how one who is merely the victim’s possible employer can complain; either at law or in equity, there being no actual contract for service, but only a potential one, interfered with.

It is easier, I think, to obtain a correct idea of the legal and equitable right which underlies many of the injunctions which have been granted in these strike cases restraining combinations of workmen from interfering with the natural supply of labor to an employer, by means of molestation and personal annoyance, if we exclude from consideration .the conduct of the defendants as, a cause of action on behalf of the immediate victims of their molestation—i. 0., of the workman or workmen whom the combination are seeking to deter from entering into the employment which is offered to them, and which they, if let alone, would wish to accept. I say this, although I firmly believe that the molested workman, seeking employment and unreasonably interfered with in this effort by a combination, has an action for damages at common law, and, where the molestation is repeated and persistent, has the same right to an injunction, in equity, which, under the same circumstances, is accorded to his contemplated employer.

The underlying right in this particular ease under consideration, which, seems to be coming into general recognition as the subject of protection by courts of equity, through the instrumentality of an injunction, appears to be the right to enjoy a certain' free and natural condition of the labor market, which, in a recent case in the house of lords, was referred to, in the language of Lord Ellenborough, as a “probable expectancy.” This underlying right has otherwise been broadly defined or described as the right which every man has to earn his living, or to pursue his trade or business, without undue interference, and might otherwise be described as the right which every man has, whether employer or employe, of absolute freedom to employ or to be employed. The peculiar element of this perhaps newly-recognized right is that it is an interest which one man has in the freedom of another. -In the case before this court the Jersey City Printing Company claims the right, not only to be free in employing labor, but also the right that labor shall be free to be employed by it, the Jersey City Printing Company.

A large part of what is most valuable in modern life seems to depend more or less directly upon “probable expectancies.” When they fail, civilization, as at present organized, may go down. As social and industrial life develops and grows more complex these “probable expectancies” are bound to increase. It would seem to be inevitable that courts of law, as our system of jurisprudence is evolved to meet the growing wants of an increasingly complex social order, will discover, define and protect from undue interference more of these “probable expectancies.”

In undertaking to ascertain and define the rights and remedies of employers and employes, in respect of their “probable expectancies” in relation to the labor market, it is well not to lose sight altogether of any other analogous rights and remedies which are based upon similar “probable expectancies.” It will probably be found in the end, I think, that the natural expectancy of employers in' relation to the labor market and the natural expectancy of merchants in respect to the merchandise market must be recognized to the same extent by courts of law and courts of equity and protected by substantially the same rules.

It is freedom in the market, freedom in the purchase and sale of all things, including both goods and labor, that our modern law is endeavoring to insure to every dealer on either side of the market. The valuable thing to merchant and to customer, to employer and to employe, manifestly is freedom on both sides of the market. The merchant, with his fortune invested in goods and with perfect freedom to sell, might be ruined if his customers were deprived of their freedom to buy; the purchaser, a householder, seeking supplies for his family, with money in his pocket and free to buy, might find his liberty of no value and might suffer from lack of food and clothing if the shopmen who deal in these articles were so terrorized by a powerful combination as to be coerced into refusing to sell either food or clothing to him.

It is, however, the right of the employer and employe to a free labor market that is the particular thing under consideration in this case.

A man establishes a large factory where working people reside, taking the risk of his being able to conduct his industry and offer these working people employment which they will be willing to accept. He takes the risk of destructive competition and a large number of other risks, out of which, at any time, may come his financial ruin and the suspension of his manufacturing works. But our law, in its recent development, undertakes to insure to him, not only that he may employ whom he pleases, but that all who wish to be employed by him may enter into and remain in such employment freely, without threats of harm, without unreasonable molestation and annoyance from the words, actions or other conduct of any other persons acting in combination. What is the measure or test by which the conduct of a combination of persons must be judged in order to determine whether or not it is an unlawful interference with freedom of employment in the labor market, and as such injurious to an employer of labor in respect of his “probable expectancies,” has not as yet been clearly defined. Perhaps no better definition could be suggested than that which may be framed by conveniently using that important legal fictitious person who has taken such a large part in the development of our law during the last fifty years—the reasonably prudent, reasonably courageous and not unreasonably sensitive man. Precisely this same standard is employed throughout the law of nuisance in determining what degree of annoyance on the part of one’s neighbor one must submit to, and what degree of such annoyance is excessive and the subject of an action for damages or a suit for •an injunction.

A man may not be liable to an action for slander for calling •a workman a “scab” in the street, but if a hundred men combine to have this workman denounced as a “scab” in the street, or followed in the streets to and from his home, so as to attract public attention to him and place him in an annoyingly conspicuous position, such conduct, the result of such combination, is held to be an invasion of the “probable expectancy” of his employer or contemplated employer, an invasion of this employer’s right to have labor flow freely to him. Without any regard to the rights and remedies which the molested workman may have, the injunction goes at the suit of the employer to protect his “probable expectancy”—to secure freedom in the labor market to employ .and to be employed, upon which the continuance of his entire industry may depend.

I think it is safe to say that all through this development of strike law, during the last decade, no principle becomes established which does not operate equally upon both employer and employe. The rights of both classes are absolutely equal in respect of all these “probable expectancies.” An operator upon printing machines has the right to offer his labor freely to any •of the printing shops in Jersey City. These shops may all combine to refuse to employ him on account of his race, or membership in a labor union, or for any other reason, or for no reason, precisely as twenty employes in one printing shop may •combine and arbitrarily refuse to be further employed unless the business is conducted in accordance with their views. But in the case of the operative seeking employment, he has a right to have the action of the masters of the printing shops, in reference to •employing him, left absolutely free. If, after obtaining, or seeking to obtain, employment in a shop, the master of that shop should be subjected to annoyances and molestation, instigated by the proprietors of other printing shops, who combine to compel, by such molestation and annoyance, this one master printer, against his will and wish, to exclude the operative from employment, this operative, in my judgment, would have a right to an action at law for damages, and would have a right to an injunction if his case presented the other ordinary conditions upon which injunctions issue. But the common law courts have not had time to speak distinctly on this subject as yet, and it is necessary to be cautious in dealing with a subject in which both courts of law and courts of equity as yet are feeling their way.

I think that the leading principle enforced in the restraining order in this case is not inconsistent with any authorities which control this court. This principle is that a combination of employers, or a combination of employes, the object of which is to interfere with the freedom of the employer to employ, or of the employe to be employed (in either of which cases there is an interference with the enjoyment of a “probable expectancy,” which the law recognizes as something in the nature of property), by means of such molestation or personal annoyance as would be liable to coerce the person upon whom it was inflicted, assuming that he is reasonably courageous and not unreasonably sensitive, to refrain from employing or being employed, is illegal and founds an action for damages on the part of any person knowingly injured in respect of his “probable expectancy” by such interference, and also, when the other necessary conditions exist, affords the basis of an injunction from a court of equity.

The doctrine which supports that portion of the restraining order in this case which undertakes to interdict the defendants from molesting applicants for employment as an invasion of a right of the complainant, is applicable to a situation presenting either an employer or an employe as complainant, and containing the following elements:

First. Some person or persons desiring to exercise the right of employing labor, or the right of being employed to labor.

Second. A combination of persons to interfere with that right,, by molestation or annoyance, of the employers who would employ, or of the employes who would be employed, in the absence of such molestation.

How far the element of combination of a number of persons will finally be found necessary, in order to make out the invasion of a legal or equitable right in this class of cases, need not be discussed. We are dealing with cases where powerful combinations of large numbers, in fact, exist.

Third. Such a degree of molestation as might constrain a person having leasonable fortitude, and not being unreasonably sensitive, to abandon his intention to employ or to be employed, in order to escape such molestation.

Fourth. As the result of the foregoing conditions, an actual pecuniary loss to the complaining party, by the interference with his enjoyment of his “probable expectancies” in respect of the labor market.

I do not think that the constraining force brought to-bear upon the-employer or employe which the law can interdict can ever include the power of public opinion or even of class opinion.. Every man, whether an employer or an employe, constitutes ai part of a great industrial system, and his conduct is open to the-criticism of the members of his own class. While, therefore, a¡ combination of union men have no right to cry “scab” in the-streets to non-union employes, or follow then in the street in a-body to and from their homes] or do many other things in combi-nation, which, if done once by a single individual, would not found an action of tort, such combinations, I think, have left a fairly wide field of effort towards the creation and application of' public opinion as a constraining force upon conduct of any kind which they wish to discourage.

I have endeavored to explain, in a general way, my own view of the most important and least understood principle embodied: in the restraining order in this case, in order that the defendants,, and, in fact, all parties interested, may have all possible light in construing and applying the exact terms of the order. What I have said may be found to be subject to modifications, without subjecting the terms of the order to any change. All generalizations on such a subject—such a novel subject as the one under consideration—are dangerous. There may be conduct on the part of a combination of employers, or of employes, which would seem to come within the general definition or description of illegal and prohibited conduct, which I have attempted to frame, bnt which conduct, nevertheless, might be justified, and hence could not be adjudged illegal. Molestation and personal annoyance, however, the terms which I have employed, do not seem to be inclusive of any justifiable conduct, especially if no one is allowed to complain that he is molested or annoyed by being subjected peaceably to the judgment and criticism of public opinion.

The vice-chancellor then discussed at length the effect of the answer of the defendants and the affidavits annexed thereto, which denied all the charges of interference with existing labor contracts or molestation practiced to prevent new workmen from being employed. The conclusion was that, notwithstanding such denials, even when sustained by the greater weight of evidence, the restraining order should be held in force as to those defendants who stood fairly charged, under oath, with the interdicted misconduct, and should be vacated as to any other defendants not so charged; that the sole issue appeared to be one of fact, viz., whether the defendants had done, and were threatening to do> the acts complained of or not, and that such an issue could not properly be tried on ex parte affidavits, but should be reserved for the final hearing; that in a case like this, where the def end-.ants were the only persons in sight apparently interested in having the unlawful conduct complained of continued, and were therefore subjected to a temptation to cause such conduct to be ■continued, an injunction which merely prevented them from doing acts which they disclaimed any right to do, and denied that they had done'or threatened to do, should be retained until the final hearing.


source: Caselaw Access Project

author: Stevenson, V. C.

license: Public Domain

text:
    Nellie G. Grover v. John P. Grover.
    [Filed January 15th, 1902.]
    1. A divorce for desertion will not be granted on the unsupported testimony of the petitioner as to the causes of the separation, especially where the separation occurred in another state.
    2. The facts shown—Held, not to establish desertion within the statute, and, further, that the facts proven do not show such permanent residence in this state as to give the court jurisdiction of the suit.
   Stevenson, V. C.

This is an ex parte case, in which the master reports in favor of a decree divorcing the petitioner from the defendant on the ground of desertion. As the proofs stand, I do not think that' the cause of divorce in New Jersey described as willful, continued and obstinate desertion has been established. If the matrimonial offence could be deemed proved, I do not think that the petitioner has shown that this court has any jurisdiction of the subject-matter of her suit, viz., her status as a married woman. •

The petitioner and the defendant were married in Winchester, New Hampshire, October 28th, 1880, where her family appear to have resided. After the marriage the couple went to live in Worcester, Massachusetts, where they resided continuously 'for about fifteen years, until November 14th or 15th, 1895, when the defendant left the petitioner and went to Burlington, Vermont, where, apparently, he has since remained. The defendant was served with notice of the pendency of this suit at Burlington.

First. The circumstances under which the petitioner and the defendant separated in November, 1895, depend wholly upon the testimony of the petitioner.- Except so far as the improvidence and drunkenness of the defendant are proved, otherwise the petitioner’s story stands without corroboration.

“A divorce will not be granted in this state upon the unsupported testimony of the petitioner as to thte causes of separation.” McShane v. McShane, 18 Stew. Eq. 341; Costill v. Costill, 2 Dick. Ch. Rep. 346.

Where the desertion complained of has commenced long after the original separation, the petitioner, while any room for doubt remains, should bring all the testimony reasonably obtainable tending to prove the true origin of the separation, the causes and motives which lay back of it. Especially ought this measure of proof to be required in a case like this, where the separation began in a distant state, and the petitioner has, in effect, brought, her grievance with her into the State of New Jersey.

But accepting the petitioner’s testimony as true, it fails, in my judgment, to make out a case of desertion under our law. The' facts are these: The defendant was employed in a shoe store, -in Worcester, until his intemperate habits caused him to lose his situation and take another at less wages. The petitioner rented rooms and took in boarders, in order to maintain the household.- The petitioner’s life appears to have been a hard one on-account of the drunkenness and the improvidence of the defendant. She testifies that she told her husband that “if he didn’t stop drinking, she could not stand it any longer.” She admits-that she might have told him that if he did not stop drinking, she “would not live with him.” By the defendant’s change of' situation his wages had been reduced from $25 a week to $10 a week. The petitioner testifies that the defendant

“said that he had got to go somewhere else to earn more money, so he firoke from his situation and got one in Burlington, Vermont. They promised him more if he came up there and did well and would not drink.”'

The petitioner further testifies that she thought the move to-Burlington was the best thing her husband could do; that “he was in debt all over,” and what he earned would not enable them to live as they ought to live. The defendant, as usual, got drunk the night before he left his home in Worcester, and when he left made ho arrangement with the petitioner 'of any kind about her joining him or his coming back to her. The petitioner was left to take care of herself. After the defendant went to Burlington he wrote a letter to the petitioner, in which he asked her to send him furniture for one room if she “was going to break up.” This letter, which the petitioner says she destroyed, must have been written some time within a period of six weeks following November 14th or 15th. The 'petitioner says, “He did not ask me what I was going to do, but said if I was going to store the goods he would like to have furniture for one room.” The petitioner sent the required furniture to the defendant and wrote him a letter, in which she merely told him that she had so sent the furniture. The petitioner and defendant apparently have never seen each other since November, 1895, and no communication of any kind has passed between them since the correspondence above noted. The petitioner says that she did not know whether he (the defendant) reformed or not. She apparently has not cared to inquire in regard to this subject. There is no suggestion in the case of any disagreement or incompatibility between this man and wife, excepting what arose from' the husband’s excessive use of strong drink. The petitioner sajrs, “I think if he had reformed from his drinking habits, I would have gone to him gladly.” The petitioner, after sending the furniture to her husband, as above stated, remained only a short time in Worcester, and then, in January, 1896, went to Chicago, thinking that she 'might live there with an ■ aunt. She did not inform the defendant of her movements, and has never since taken the pains to inform him of her whereabouts. There is no proof in the case that the defendant knew that his wife had come to New Jersey until he was notified of this suit. When asked by the master why she did not write to the , defendant while she was living in New Jersey during the last two years, the petitioner answered, “I thought if he didn’t care to'' have me live with him, why I didn’t care to; and, besides, he was drunk too much.” The petitioner again testified that she did not know whether her husband had reformed or not, and did not know anything at all about him. She knew that her husband had left her merely to get employment in a new place,' where he would be beyond the influence of his old companions and with a special inducement before him to make an effort at reformation. And yet, within a few weeks, she left, so far as her husband was concerned, for parts unknown, and for live years has been so far separated from him in distant states that, during a part, at least, of the time, she supposes he did not know where she was.

I do not mean to intimate that because the petitioner preferred to have her drunken and improvident husband remain away from her that his separation might not constitute a willful, continued and obstinate desertion under our 'statute. The acquiescent state of. mind of the injured wife who has been deserted, in my judgment, does not deprive her of the right to a divorce when such state of mind has not been communicated to the husband, or in any way tended to produce or continue the separation, and is the natural result of his cruelty, drunkenness or other persistent violation of his duty toward her. No wife, in order to be entitled to a divorce, ought to be required to swear that she desired to have a husband, who has ended a career of brutality toward her by deserting her, come back and resume that career. But in this ease the petitioner appears to have acquiesced in the separation from her husband without regard to whether he had reformed and was willing to do his duty to her or not. She-failed to notify him that if he would reform she would stand by him. I think that her conduct amounted to a distinct notice to her husband that she had no interest in him, did not care whether he reformed or not, or had adjudicated that he would or could not reform, and that therefore she did not wish to live with him again.

No intent to desert can be imputed to the defendant at the commencement of the separation. Natural and proper motives actuated the defendant in leaving his wife in Worcester while he sought more profitable employment in Burlington. The petitioner does not pretend that she supposed that the departure of her husband wás due to any desire on his part to abandon her. She testifies, in substance, that his move to Burlington was a prudent act, with reference to his pecuniary obligations and the insufficiency of his earning in Worcester to support them both. Before the protracted absence, silence and failure to furnish support, on the part of the'husband, could be held to constitute a desertion of his wife, it seems to me that the wife had plainly indicated to him that she was willing to be deserted; that she had elected to live her life, where she might see fit, apart from him.

Second. But if the defendant has been guilty of the matrimonial offence of desertion under our law, the jurisdictional fact of the residence of the petitioner in this state is not proved by sufficient evidence.

This defect has no relation to the failure of the petitioner to bring the person of the defendant within the jurisdiction of this court by the service of process within this state. If the defendant had been so served with process, and had, in good faith, defended this suit, the result would have been the same. We do not undertake to settle the status of married persons residing in other states who see fit to endeavor to impose that task upon us. We must have jurisdiction of that status, and their consent cannot confer such jurisdiction.

The parties in this case never had any matrimonial domicile in New Jersey. The defendant has never, at any time, resided here. The sole basis for the jurisdiction of the court must be found in a bona fide residence of the petitioner—a residence maintained permanently, animo manendi, for two years prior to the commencement of the suit—not a residence established for the purpose of obtaining a divorce, and presumably limited and qualified, in respect of its contemplated duration, by such purpose.

The whole law on this- subject is discussed at length in the opinion of the chancellor in the case of Sweeney v. Sweeney, 17 Dick. Ch. Rep. 357, and in which all the New Jersey cases are cited.

The power of the State of New Jersey, through its legislature (if the constitution did not forbid) and through its courts, to •control the matrimonal status of its citizens—of all persons domiciled in its territory—is not to be questioned, and no regard need be had to the effect which other states may, under the provisions of the constitution and laws of the United States, or of their own constitutions and laws, give to such legislative or judicial action. The question simply is as to what sort of a residence or domicile of a person in this state our statute has declared necessary in order to enable this court to take cognizance of his or her matrimonial status. The cases referred to above answer this question adversely to the petitioner in this case.

The petitioner, for a year prior to her coining to New Jersey, resided in the city of New York, where she appears to have been engaged in her business of “renting rooms and taking boarders.” However this may be, she came to the city of Newark, in this state, in March, 1899, and, with the aid of a friend who accompanied her from New York, found rooms suitable for the prosecution of the same business and moved her belongings to them. About four months after the expiration of two years she commenced this suit for divorce. The only evidence which she offers to explain the motives which induced her to live in New Jersey, or the nature and contemplated duration of her stay, is in her own brief statement that she “thought it would be cheaper to live in Newark.” Accepting this statement as a complete disclosure of her mind, it would seem to be fair to infer that she contemplated living elsewhere if her expectation of finding cheap living in Newark should prove to be unwarranted. At least, it indicates that the residence was experimental in its origin. Eor all that appears the petitioner had not a single relative, friend or even acquaintance in Newark or anywhere else in New Jersey when she first came into the state, and since her coming it does not appear that she has formed any permanent ties here. Her business of “renting rooms and taking boarders” is one which she had already pursued in two other states within a few years, and could, at any time, be again transferred. It is not shown that this business was successful, and the only boarder of whom we are informed, was the witness who came with the petitioner from New York, and who afterwards returned to New York.

This seems to be a clear case where the “violent presumption,” mentioned by Judge Yoorhees, speaking for the court of errors, in the case of Tracy v. Tracy, 17 Dick. Ch. Rep. 807, as further expounded by the chancellor in Sweeney v. Sweeney, supra, directly applies.

The fair inference from the whole testimony is that the petitioner became a resident of New Jersey in order to be able to get a divorce in case her husband maintained his separation from her continuously for two years. Her case fails because she does not prove that she became a permanent, indefinite resident, animo manendi. The motive and purpose which lie back of the establishment of the residence in New Jersey indicate the transient character of the residence, in the absence of countervailing evidence.

The cases of the kind to which this belongs seem to be becoming more and more frequent. It is our policy not to permit our divorce laws to be used to dissolve the marriage bonds of citizens of other states, who, unable to obtain the desired freedom at home, find it convenient to live in New Jersey for two years, and are willing to swear that they came here with intent to remain permanently, and not merely with intent to obtain a divorce and then go elsewhere.

Where the deserted spouse comes into this state from a state in which desertion is not a cause of absolute divorce, if his residence here must be interpreted and characterized, in respect of its nature and contemplated duration, solely by his own testimony in regard to his motives, purposes and intentions, his prompt application for a divorce at the expiration of the statutory period of two years should, in my opinion, in every case, be denied, on the ground that he has failed to establish the jurisdictional fact of residence within the meaning of our statute. But this proposition is not necessary to the decision of the case in hand, because the petitioner’s own testimony fails to show that she established a permanent residence in New Jersey, animo manendi—that she was domiciled in this state for two years before the commencement of her suit.


author: Van Syckel, J.

text:
    Charles R. Myers, complainant and respondent, v. Eliza J. Metzger et al., defendants and appellants.
    [Filed June 17th, 1902.]
    1. An agreement is signed by A and B as executors of 0, and following such signatures it' is signed by the heirs of the testator, providing, first, “that we, the executors, agree to do a certain act,” and secondly, that “we will do a certain other act.”—Held, that the executors alone are bound by the agreement to do the first act.
    2. Uncertainty in an agreement is fatal to a claim for specific performance.
    On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in 16 Dick. Gh.-Rep. 522.

      Mr. Allen B. Endicoit and Mr. Richard Y. Lindabury, for the appellants.

      Mr. Clarence L. Cole and Mr. David J. Pancoast, for the respondent.
   The opinion of the court was delivered by

Van Syckel, J.

The complainant is the assignee of the rights acquired by Mrs. Ellen E. Wright, under the following agreement, and has filed his bill to compel specific performance by the defendants of that part of the contract which gives Mrs. Wright, her heirs or assigns, the option of buying the land, at a fair market price, before they sell to any other person.

The agreement is as follows:

“Whereas, Mrs. Ellen E. Wright has recently purchased from the executors of Emanuel Metzger, deceased, a tract of land fronting five hundred feet on the easterly side of New Jersey avenue, in Atlantic City, Atlantic county, State of New Jersey, for the sum of fourteen thousand dollars. In consideration of said purchase we, the executors of the said Emanuel Metzger, do hereby agree with the said Ellen Wright, her heirs and assigns, that we will not sell any portion of the ground oceanward from the above-mentioned tract without first notifying Mrs. Wright, her heirs or assigns, of our intention, and giving them the privilege of buying the ground at a fair market price. Also, that we will not build, or allow to be built, any building whatsoever upon said ground while under our control or held as part of the estate of said Emanuel Metzger.
“Martha M. Metzger,
“John Hunter,
“December 9, 1884. Executors.
•“Emma G. Metzger,
“Mary A. Gould,
“Eliza J. Metzger,
“Kate 0. Metzger,
“Martha M. Metzger, Jr.”
“Jesse N. Rooke,
“V. E. Archibald, Jr.”

The language of this agreement is expressly that

“we, the executors of Emanuel Metzger, agree with Ellen Wright, her heirs and assigns, that we will not sell any portion of the ground ocean-ward without first notifying her, her heirs or assigns, and giving them the privilege of buying at a fair price,”

and it is signed by the executors as executors. There is no rule of construction which will permit any other term to be added to this agreement. The language so far being free from ambiguity, there is no place for construction to vary the terms of the writing. The executors alone agreed to that part of the agreement, and it cannot be extended,, by interpretation, to include other parties. It is immaterial whether, in fact, the executors had any title to the premises referred to in the contract.

Mrs. Wright manifestly dealt with them under the impression that they had the power to convey, and, under her agreement, she acquired such right only as her contract gives her, which was the obligation of the executors to give the option to purchase.

By the stipulation of the parties in the case it appears that Emanuel Metzger devised these lands to his said executors, in trust for his widow, Martha M. Metzger, during her lifetime, and at her death devised the same to his children.

At the time of the making of the agreement the executors had an estate per autre vie in the lands; the other parties who signed the agreement had a vested remainder.

To pass title to the fee it was necessary for all these parties to join in the conveyance.

The executors’ obligation is not to sell during the continuance of their estate without giving Mrs. Wright the refusal of the property, and if an implied promise binding upon the children can be found in the writing, it is no more comprehensive than the promise of the executors not to sell during the continuance of the estate per autre vie.

The second term of the agreement:

“Also, that we will not build, or allow to be built, any building whatsoever upon said ground while under our control or held as part of the estate of said Emanuel Metzger,”

is an obligation not restricted by its language to the executors of Metzger; the words “the executors of Emanuel Metzger,” following the word “we” in the first member of the agreement, are omitted in the second member, and therefore the latter clause binds all persons who signed the contract. It is not permissible to say tliat difference in the language used by the parties was not intentional.

This gives effect to every part of the agreement, and it is not, therefore, admissible to resort to interpretation to impose a duty upon the defendants not found in its terms.

But conceding that this is not the clear legal purport of the contract, it cannot be said that it is plain that the children have engaged not to sell after the expiration of the trust.

If it is a doubtful question, specific performance will not be decreed; uncertainty in the contract is fatal to a claim for specific performance. McKibbin v. Brown, 1 McCart. 13; Potter v. Hollister, 18 Stew. Eq. 508; Brown v. Brown, 6 Stew. Eq. 650.

Under the contract, as construed by the complainant, the defendants are not constrained to sell whenever Mrs. Wright or her assigns desire to buy. Their right to purchase arises only when the defendants have offered to sell, or done some equivalent act.

The fact that judicial proceedings were taken by the children of the said testator to procure a partition of these lands among themselves does not charge them with an attempt, or an intention, to sell, nor can such an intention be fairly drawn from the fact that sale was ordered by the court, by reason of inability to make an actual partition, and that thereupon Eliza Metzger, one of the defendants, became the purchaser.

I suppose it would not be contended that if one only of the heirs had conveyed her share to the others, the contingency would have arisen which entitled the complainant to demand a conveyance.

The case does not seem to be different where one of the heirs, to protect her interest, buys in the other shares and desires to hold the property subject to the agreement.

The right of the complainant to a conveyance does not attach so long as the entire title remains in one or more of the heirs.

The decree should be reversed.

For reversal—The Chief-Justice, Van Syckel, Dixon, Garrison, Collins, Fort, Hendrickson, Pitney, Krueger, Vredenburgh, Voorhees—11.

For affirmance—-Garretson, Bogert, Adams, Vroom—4.


author: Dixon, J. Garrison, J.

text:
    St. George Kempson, appellant, v. Helen A. Kempson, respondent.
    [Filed June 16th, 1902.]
    1. A husband and wife having their matrimonial domicile in this state, and the domicile of the wife being also here—Held, that the court of chancery, on a bill filed by the wife, had jurisdiction to enjoin the husband from prosecuting a suit for divorce in another state, the jurisdiction of which he had invoked on a false and fraudulent allegation of his residence in that state.
    2. On such a bill filed by the wife, an injunction to stay the prosecution of the foreign suit was served on the husband personally in New York before he had been brought into court by appearance, service of subpoena or publication of notice.—Held, that he was bound to obey the injunction and was punishable for disobedience.
    3. A court of equity should not command a defendant to do what he plainly has not power to do.
    On appeal from an order advised by Vice-Chancellor Pitney, whose opinion is reported in 16 Riele. Ch. Rep. SOS.

      Mr. Robert Adrain, for the appellant.

      Mr. Alan H. Strong, for the respondent.
   The opinion of the court was delivered by

Dixon, J.

The parties to this suit were married in 1882 and thereafter lived in this state as husband and wife until at least December, 1898. On April 10th, 1899, the wife, still residing in New Jersey, presented to the chancellor a bill of complaint, with affidavits annexed, in which she alleged that on March 29th, 1899, her-husband had commenced a suit in North Dakota asking a divorce, from her on the ground of cruelty; that in his petition he had averred his residence in North Dakota for a period of three-months ; that such a residence was necessary to induce the court in North Dakota to take cognizance of the cause; that the husband’s averment of residence was false and fraudulent, and that his residence was still in New Jersey; thereupon she prayed an injunction commanding her husband to desist and refrain from all further proceedings in the North Dakota action until the-further order of the chancellor. On April 28th, 1899, an injunction, according to the prayer of the bill, was issued, and on May 31st, 1899, it was served on the.husband personally in the city of New York; nevertheless he proceeded with his suit in North Dakota, and on October 4th, 1899, procured a decree of divorce therein. Subsequently he was attached in this state for violating the injunction, and an order was made by the chancellor adjudging him to be in contempt and directing that he-be fined $5 and costs; that he cause the decree of divorce to be set aside, and that he stand committed to the custody of the sheriff of Middlesex county until he shall have done so. From this order he now appeals.

The first question for consideration is whether the chancellor had jurisdiction of the cause in such sense as to support an injunction against the defendant, who had not been brought into ■ court by the service of process or by appearance, and who was-not within the state. If such jurisdiction did not exist, the defendant was not bound to obey the injunction (Dodd v. Una, 13 Stew. Eq. 672), but if it did, the injunction was obligatory.

It may be regarded as settled, by a long train of adjudications, culminating in Atherton v. Atherton, 21 Sup. Ct. Rep. 544, that the state, wherein are the matrimonial domicile and also the ■ domicile of the complaining spouse, has the right to confer upon its courts jurisdiction over the matrimonial status, no matter • where the other spouse may be. In such circumstances the • matrimonial status is deemed to have a situs within the state,. resembling, for tbe time being, the situs of land, and the proceeding respecting that status is quasi in rent. This power is recognized and upheld by foreign states, provided the state exercising it has made and carried out reasonable provision for giving to the defendant notice and an opportunity to be heard. Felt v. Felt, 14 Dick. Ch. Rep. 606.

This authority is most frequently exercised in actions for divorce, but the principle that maintains it for dissolving the marriage status must likewise maintain it for preserving that status. To this effect is the language of Judge Cooley, in Cooley Const. Lim. 100, where he says: “We conceive the true rule to be that the actual Iona fide residence of either husband or wife” (coupled, in the present case, with the matrimonial domicile) “within a state will give to that state authority to pass upon any questions affecting his or her continuance in the marriage relation.” Equally broad are the expressions of Chancellor Zabriskie in Coddington v. Coddington, 5 C. E. Gr. 263, and of Judge Adams, speaking for this court, in Hervey v. Hervey, 11 Dick. Ch. Rep. 121, and they are fully warranted by the practice of the English courts touching all manner of matrimonial causes.

Under the laws of New Jersey jurisdiction over questions-affecting the marriage relations of its citizens is vested -in the-court of chancery. That such jurisdiction includes the right to-annul foreign judgments'fraudulently obtained affecting those-relations is established by the cases of Doughty v. Doughty, 1 Stew. Eq. 581; Magowan v. Magowan, 12 Dick. Ch. Rep. 322,. and Streitwolf v. Streitwolf, 13 Dick. Ch. Rep. 563. If the court has power to annul such decrees for fraud, it must also, on a general principle of equity,, be able to enjoin parties from attempting to obtain such decrees by fraud.

But it is argued that the jurisdiction of the court is not complete until certain steps have been taken to give the defendant notice of the suit. Undoubtedly this is true; for even the state’s authority is dependent upon some reasonable provision being made to that end; and the state has made the'jurisdiction of the court dependent on compliance with certain prescribed regulations. For the purpose of pronouncing a decree in the cause there must be appearance by the defendant, or process served upon him within the state, or publication of notice to him. Hervey v. Hervey, 11 Dick. Ch. Rep. 424. But, for the purpose of giving effect to a preliminary injunction, nothing more is needed than that the defendant should have received due notice of the injunction. Haring v. Kauffman, 2 Beas. 397; Cape May, &c., Railroad Co. v. Johnson, 8 Stew. Eq. 422. In the Haring Case, as in the present case, the injunction was served on the defendant outside of this state and he had not yet’ been brought into court by appearance, process or publication, but it was held that the injuxxction was obligatory upon him.

We do not mean to say that in every case the service of an injunction outside of the state'will bind the party to obedience. Such a rule would compel foreign residents to enter into litigation here whenever an injunction could be secured. Whether an injunction served beyond the borders of the state upon an individual not personally under the jurisdiction of the court will bind him, depends on the nature of the suit. If the suit be offe) in which the mourt can acquire no right to render a binding decree against an (absent defendant, then its injunction, preliminary or subsequent to decree, cannot bind him. Thus, if a bill were filed here to compel a resident of New York to refrain from negotiating a bill of exchange obtained by fraud, an injunction to’ that effect .served on the defendant in New York would be unavailing. But if the subject of the suit were a fraudulent deed of land in New Jersey, an injunction so served would be binding, because the .absence of the defendant would not affect the power of the court to settle the title to the land by á decree in the cause. Such was the object of the bill in Haring v. Kauffman, 2 Beas. 397.

In the case now before us, the matrimonial domicile and the •domicile of the complainant being actually within the state when ■the bill was filed, the court had the right to proceed to- final •decree against the defendant, even though he remained absent from the state, and therefore to require his obedience to the injunction, of which he had notice.

Regarding the alleged' waiver of the injunction by the complainant we desire to add nothing' to the opinion of the learned vice-chancellor. .

The only other question open for consideration on this appeal is as to the propriety of the remedial portion of the order. Grand Lodge v. Jansen, 17 Dick. Ch. Rep. 737. It requires the defendant to cause the decree of the North Dakota court to be set aside.

We think that decree should be set aside, but evidently the defendant has not the power to ensure this result; only the court that rendered the decree can vacate it. True, if a party be commanded by the court to do a certain thing and afterwards he satisfies the court that he has not the power to do it, the court will ordinarily relieve him from the order. But when it. appears .at the outset that the thing to be done is not within the control of the party to be enjoined, but yet that his effort may induce its accomplishment, a more reasonable course for the court is to require the effort, not the result.

We therefore think this part of the order should be modified, so as to require the defendant to present the truth to the court in North Dakota and in good faith to urge that its decree be set aside. When that is shown to have been done and the fine and costs have been paid, the defendant should be released.

Garrison, J.

(dissenting).

The test of an action in rem is that it acts on the res.1 The indispensable feature of every form of proceeding in rem or quasi in rem is that the thing that gives rise to the proceeding is directly affected by the proceeding: in admiralty, the thing libelled; in attachment, the thing seized; in foreclosure, the-thing pledged; in realty, the property right; in divorce, the status. A proceeding in rem that leaves the res unaffected is an unthinkable proposition.

It is just because of this distinguishing feature that jurisdiction of the person is not. essential to these proceedings. To dispense with jurisdiction over the person in action that does not act upon the res is not to produce a new form of proceeding in rem; it is simply to rear an anomalous action, in which a personal judgment may be rendered without the acquisition of jurisdiction over the person.

The decree of the chancellor brought up- by this appeal did not present this anomaly, for, by a sort' of equitable fiction, .it acted upon the res by directing that the status of the defendant’s marriage be restored. In this court even this vestige of a proceeding in rem is eliminated and a purely personal decree is substituted, although there has been no personal service. I agree that the decree of the chancellor was erroneous, but I see no possible ground upon which the decree of this court can be sustained, except by the creation of the new form of actiqn alluded to, for which I find no precedent and know of no authority.

For affirmance—Adams—1.

To reverse and modify—Ti-ie Chief-Justice, Van Syckel, Dixon, Collins, Fort, Garretson, Hendrickson, Krueger, Voorhees—9.

For reversal—Garrison, Vroom—2.


author: Garrison, J.

text:
    Philip D. Armour et al., trading as Armour & Company, complainants, v. Michael T. Connolly and Adams & Company, defendants.
    [Filed June 16th, 1902.]
    Where, by fraudulent practices, possession of a building standing upon leased land has been obtained under an agreement with the owner of the building to tear it down or remove it, equity will restrain a party to such contract from using the possession for any purpose other than that for which it was obtained.
    On appeal of Jonathan J. Armour, survivor, &c., from an order sustaining a demurrer advised by Vice-Chancellor Emery, whose opinion is reported in 1/.9 Atl. Rep. 1117.

      Mr. Albert G. Wall, for the appellant.

      Mr. Joseph Anderson, for the respondents.
   The opinion of the court was delivered by

Garrison, J.

The complainants- bill presents the following case against Adams & Company, who have demurred:

The complainants, trading as Armour & Company, had erected a warehouse for meats upon leased land, with the privilege of removing such building at any time during the term, which had not expired when the bill of complaint was filed. Later the complainants erected another building upon a tract of land adjoining the above, in which to engage in their business of wholesaling meats, and were, in consequence, desirous of having the first-mentioned building torn down or removed before their lease was up. This building, which was fairly worth between $3,000 and $4,000, was sought by Adams & Company, for the purpose of carrying on their business, which was also wholesaling meats. Armour & Company refused the offer of Adams & Company, by which $2,000 or $3,000 could have been got for the building, and instead thereof, and for the express purpose of having it torn down, sold it to one Michael T. Connolly, a contractor engaged in the business of razing buildings, for the sum of $250, he agreeing to take down or remove the building within two weeks from its vacation by the complainants. The bill then goes on to state that this sale was the result of a fraudulent conspiracy between Adams & Company and Connolly, entered into and carried forward for the purpose of “enabling Adams & Company to get possession of the building intact and unremoved,” and that the possession that Connolly obtained, under the color of carrying out this agreement to tear down or remove the building, was, in pursuance of this secret arrangement, passed on to Adams & Company, who were mailing use of such possession to repair the building and proposed to carry on their business therein.

Upon this state of facts the complainants’ prayer was for general relief against Adams & Company and Connolly, for specific performance against Connolly, and for injunction against. Connolly and Adams & Company to restrain them, or either of them, from occupying or using the said building, except for the purpose of tearing it down or removing it.

Adams & Company alone have demurred. In sustaining this demurrer the case made by the bill was considered by the learned vice-chancellor almost wholly in the light of its prayer for specific performance, which was against Connolly alone, and the conclusion that was reached rested largely upon the unwillingness of the court of chancery to enforce the specific performance of a building contract, which this was held to be. Obviously, however, if there are in the bill facts well pleaded, which, if unanswered, will support some decree against Adams & Company that is within the prayer of the bill, their demurrer should not be sustained merely because a wrong remedy has been prayed against another defendant. The relief to which the facts entitle the complainants, as against Adams & Company, does not involve specific performance or any of the other matters discussed in the opinion of the court below.

The remedy to which the complainants are, in my judgment, entitled is the injunction they ask against Adams & Company to be made perpetual, if, upon final decree, the facts are not varied. This relief rests upon the fact established by the pleadings that, in the fraud by which Adams & Company obtained possession of the building in question, Connolly was the alter ego of Adams & Company, so that his agreement to use the possession of the building for the purpose of tearing it down or removing it was, in equity, their agreement. To avert a fraud or to right a wrong, equity will consider the wrongdoer as doing, or as having done, that which he ought to have done. Adams & Company, under the agreement with the complainants, which they made through Connolly, ought to have torn down or removed the building—at least, they held their possession, in the eye of equity, for no other purpose. Any use of their possession, therefore, that is not consistent with the performance of their contract, is a fraud upon the complainants, and a wrong for which, under the circumstances, injunction is the only adequate remedy.

Upon this ground the order made in the court below should be reversed.

For reversal—The Ci-iiee-Justice, Van Syckel, Dixon, Garrison, Collins, Fort, Hendrickson, Pitney, Bogert, Krueger, Adams, Vredenburgh, Voorhees, Vroom—14.

For affirmance—None.


author: Hendrickson, J.

text:
    John J. Brown, committee of Charlotte M. Fox, a lunatic, appellant, v. Hamilton Wallis et al., trustees, respondents.
    [Argued March 14th, 1902.
    Decided June 16th, 1902.
    Filed June 16th, 1902.]
    1. Under the supplement to the act concerning idiots and lunatics, approved June 20th, 1890 (P. L. of 1890; 0m. Stat. p. 1704 ¶ 37), the orphans court of any county in this state, upon application for that purpose, and upon proper proceedings and proofs, as therein required, may appoint a guardian of a lunatic residing in another state, but having property here, and in its discretion may appoint as such guardian a person within this state or the committee of such lunatic in the foreign state.
    2. Where proceedings for the appointment of such a guardian had already been begun in the orphans court and the court had obtained jurisdiction over the subject-matter, a petition in the court of chancery praying a decree for the payment of moneys belonging to the lunatic, then in its control, to the committee of the lunatic in a foreign state and to enjoin further proceedings to appoint a guardian in the orphans court was properly denied.
    On appeal from an order advised by Vice-Chancellor Pitney, whose opinion is reported in 51 Atl. Rep. 621.

      Mr. Charles L. Gorlin, for the appellant.

      Mr. William D. Edwards, for the respondents.
   The opinion of the court was delivered by

Hendrickson, J.

This is an appeal from a decree of the court of chancery denying the prayer of the petition of the appellant, a committee of the person and property of Charlotte M. Fox, a lunatic, appointed by the supreme court of the State of New York, and ordering that the same be dismissed, with costs. The petition prayed a decree that the sum of $7,589.69 found due to the said lunatic from the respondents, as surviving executors upon an accounting in said court, be paid to the appellant, as such committee, and that, pending the application, the respondents should be stayed from proceeding further in the Hudson county orphans court for the appointment of a guardian of said lunatic in the State of New Jersey. The facts and circumstances under which the petition was filed and the order appealed from was made fully appear in the opinion of the vice-chancellor, and need not be restated. We think the decree appealed from should be affirmed, but upon a different ground from that stated in the opinion. By reference to a statute of this state entitled “An act to amend an act entitled “An act concerning idiots and lunatics/ approved March twenty-seventh, one thousand eight hundred and seventy-four” (P. L. of 1890 p. 507; Gen. Siat. p. 1704 87), it will be seen that authority is expressly conferred upon the orphans court of any county in this state, in which any property of a lunatic residing out of this state is situate, upon application made to it for that purpose and upon proper proceedings and proofs -therein required, to make an order to show cause why a guardian for said lunatic shall not be appointed, with a proviso that when it shall appear that the person making the application has been appointed guardian, trustee or committee of such lunatic in the state where the inquest was held, in that case the court may at once appoint the person making the application guardian of such lunatic without the order to show cause.

Since it is admitted, that, before the petition was filed, an application had been regularly made to the Hudson county orphans court for the appointment of a guardian of said lunatic in this state, in which proceedings the said committee had appealed and filed his affidavit and procured an adjournment, it is apparent .that the orphans court had jurisdiction of the subject-matter of the application at the time of the filing of the petition, and that it ivas in the discretion of that court either to appoint as such guardian a person in this state or the committee of the lunatic in the State of New York.

We think that, under such circumstances, the court of chancery could not lawfully enjoin the proceedings in the orphans court, and that the chancery court was justified in denying the prayer of the petition.

Upon this ground alone—no other ground appearing in the ease, as we think—the decree below is affirmed.

For affirmance—The Chief-Justice, Dixon, Garrison, Collins, Garretson, Hendrickson, Adams, Vredenburgh,Vroom —9.

For reversal—None.


author: Per Curiam.

text:
    Rose Mary Schrafft, defendant and appellant, v. Mary C. Wolters, complainant and respondent.
    [Filed July 21st, 1902.]
    1. A bill of complaint in chancery must set out all the facts and circumstances upon which the decision of the case will-turn.
    2. If the bill is defective in this respect it will be dismissed unless the complainant obtain leave to amend.
    On appeal from an order denying motion to dismiss bill of complaint, advised by Vice-Chancellor Stevens, who filed the following conclusions:

      Where there is a doubtful question, on a title, legal or equitable, the court will sometimes overrule the demurrer, without prejudice to any defence the defendant may make by way of answer. Brownswords v. Edwards, 2 Ves. Sr. 21/.7; Cochrane v. Willis, De G. J. & S. 229; Sheffield Water Works v. Yeomans, L. B. 2 Ch. App. 8. It seems to me that the case at bar is one to which this rule ought to be applied. It is quite evident, on a careful perusal of the bill, that the facts and circumstances upon which the decision of the case will turn are not all before the- court, and that no satisfactory decision can be reached.

      First. The deed to Frederick R. Wolters, trustee for Rose Mary Wolters, is not set out in full. So far as set out it would seem, under the statute of uses (Gen. Stat. p. 876 § 119), to have vested the legal title, insianter, in Rose Mary Wolters. Melick v. Pidcock, 17 Stew. Eq. 5Jf2. If it did, the question would arise whether the language “to the only proper use of” Rose Mary Wolters would take the case out of the operation of the rule that where title is taken in the name of one person, and the consideration paid by another, there is a resulting trust. As bearing upon this question it ought to be known whether Frederick R. Wolters stood in loco parentis to Rose or not. For a satisfactory determination of the matter it is evident that the. whole deed should be before the court, and that the relationship, if any, which existed between Frederick and Mary should be stated.

      Second. The deed was, as between Frederick and Rose, so far as appears, a voluntary deed, without any power of revocation, and is alleged to have been made under a misapprehension of its legal effect. Possession appears to have been held for many years, if not against, at least not in subordination to what seems to have been the legal title. It is manifest that whether the deed be effective or not depends upon evidence of facts and circumstances not fully set forth in the bill. Until these facts and circumstances are known the equitable rights of the parties cannot be satisfactorily determined.
    For these reasons I think the application to dismiss should be denied, without costs. As this application, under Rtxle 213, lias the effect of a demurrer, the denial is without prejudice to any defence the defendants may make by way of answer.

      Mr. Oscar Keen, for the appellant.

      Mr. Samuel F. Bigelov), for the respondent.
   Per Curiam.

The respondent (who was the complainant below) is the sole devisee of Frederick E. Wolters, deceased. Although her bill contains no prayer for specific relief, it appears, from the brief of her counsel, that its object is to have a trust, created by a deed made to Frederick E. Wolters, in favor of the appellant Eose Mary Sclirafft, declared to be void, and the title to the property conveyed by the deed decreed to be in the respondent as tenant in fee-simple.

As was pointed out by the vice-chancellor who advised the order appealed from, many of the facts and circumstances upon which the effect to be given to this deed must depend are not set forth in the bill of complaint. To require the defendants to answer the bill, in its present defective form, is to improperly embarrass them; and the motion to dismiss should prevail, unless the respondent, within a reasonable time, to be fixed by the chancellor, shall apply for leave to amend the bill by setting out therein all the facts upon which her right to relief depends.

The order appealed from should be reversed, and an order entered in accordance with this opinion.

For reversal—The Chibe-Justice, Yan Syckel, Garrison, Collins, Fort, Garretson, Hendrickson, Pitney, Bogert, Adams, Yredenburgh, Yoorhees, Yroom—13.

For affirmance—Dixon—1.


text:
    Nellie G. Grover, appellant, v. John B. Grover, respondent.
    [Filed June 16th, 1902.]
    Upon the facts shown—Held, that a desertion for the statutory period is not proven.
    On appeal from a decree advised by "Vice-Chancellor Stevenson dismissing a petition for divorce, whose opinion is reported in 18 Ride. Gh. Rep. 771.

      Mr. Leon Abbeit, for the appellant.
   Per Curiam.

Two grounds are set out in the opinion of the learned vice-chancellor upon which he advised a dismissal of the petition. The first is that the proofs submitted failed to show a willful, continued and obstinate desertion of the petitioner by the defendant for the statutory period of two years preceding the filing of the petition.

Our examination of the proofs satisfies us of the soundness of the conclusion of the vice-chancellor upon this point.

The second ground upon which the decree-of dismissal. was advised is that “the fair inference, from the whole testimony, is that the petitioner became a resident of New Jersey in order to get a divorce, in case her husband maintained his separation from her continuously for two years; and that her case fails because she does not prove, that she became a permanent, indefinite resident, animo manendi.” We agree with the vice-chancellor that it may be fairly inferred that the petitioner became a resident of this state for the purpose of" taking advantage of our divorce laws if the conditions permitted it, but we are not prepared to admit the soundness of his conclusion that the proofs fail to establish the permanency of her residence, and we refrain from expressing an opinion upon that point. Nor are we prepared, either, to concur in, or dissent from, the views expressed by the vice-chancellor in his opinion that “where the deserted spouse comes into this state from a state in which desertion is not a cause of absolute divorce, if his residence here must be interpreted and characterized, in respect of its nature and contemplated duration, solely by his own testimony in regard to his motives, purposes and intentions, his prompt application for a divorce at the expiration of the statutory period of two years should, in every case, be denied, on the ground that he has failed to establish the jurisdictional fact of residence, within the meaning of our statute.”

The decree below should be affirmed, for the reason that a desertion of the petitioner by the defendant for the statutory period is not proved.

For affirmance—-The Ohiee-Justice, Van Syckel, Dixon, Garrison, Collins, Fort, Garretson, Hendrickson, Pitney, Bogert, Adams, Vredenburgh, Vroom—13.

For reversal—None.


text:
    William S. Canon, complainant and respondent, v. George M. Ballard, defendant and appellant.
    [Filed June 16th, 1902.]
    The provision of the statute for the allowance of costs to a successful demurrant is mandatory.
    On appeal from an order advised by Vice-Chancellor Pitney sustaining a demurrer to a bill, whose opinion is reported in 17 Dick. Ch. Rep. 883.

      Mr. W. Bradford Smith, for the appellant.

      Mr. Frank E. Bradner, for the respondent.
   Per Curiam.

The bill in this ease was demurred to upon three grounds— first, for want of equity; second, for multifariousness; third, for non-joinder of a necessary party defendant. The demurrer was sustained un the ground of the non-joinder alone, the vice-chancellor considering that the objection to the bill on the ground of want of equity and also that of multifariousness were not well founded. We concur in the opinion of the vice-chancellor upon these points.

Notwithstanding that the demurrer was sustained, the demur-rant was refused costs. To this extent the order appealed from is erroneous. Section 32 of the Chancery act (Gen. Slat. p. 878) provides that when a bill is demurred to, “if the demurrer be allowed, the complainant shall pay costs.” This provision is mandatory; it leaves nothing to the discretion of the court.

The order appealed from, so far as it denies costs to the defendant upon his demurrer, must be reversed.

For reversal—'The Ci-iiee-Justice, Van Syckel, Dixon, Garrison, Collins, Garretson, Hendrickson, Bogert, Adams, Vredenburgh, Vroom—11.

For affirmance—None.


text:
    William Bridgewater, complainant and respondent, v. The Ocean City Railroad Company et al., defendants and appellants.
    [Filed June 23d, 1902.]

      Mr. Clarence L. Cole, for the appellants.

      Mr. John C. Sims, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion of Vice-Chancellor Grey filed in the court below. See 17 DicTc. Oh. Rep. 276.

For affirmance—The Chief-Justice, Van Syckel, Dixon, Garrison, Collins, Port, Garretson, Pitney, Bogert, Krueger, Adams, Yredenburgh, Voorhees—13.

For reversal—Hendrickson, Yroom—2.


text:
    Township of Palmyra, complainant and respondent, v. The Pennsylvania Railroad Company, defendant and appellant.
    [Filed June 23d, 1902.]

      Mr. Joseph H. Gaskill and Mr. Alan H. Strong, for the appellant.

      Mr. Thomas F. French, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated by Vice-Chancellor Grey in the opinion delivered in the court below. See 17 Dick. Ch. Rep. 601.

For affirmance•—The Chief-Justice, Van Syckel, Dixon, Garrison, Collins, Port, Garretson, Hendrickson, Pitney, Adams, Yredenburgh, Yroom—12.

For reversal—None.


text:
    Martha A. McMullin et ux., complainants and respondents, v. Sarah N. Doughty, defendant and appellant.
    [Filed June 23d, 1902.]

      Mr. Herbert A. Drake, for the appellant.

      Mr. David J. Pancoast, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion of Vice-Chancellor Grey delivered in the court below. See 17 Dick. Ch. Rep. 252.

For affirmance—The Chiee-Justice, Van Syokel, Dixon, Garrison, Collins, Fort, Hendrickson, Pitney, Bogert, Krueger, Adams, Vredenburgh, Vroom—13.

For reversal—None.


text:
    William Flandrau, complainant and appellant, v. Otto H. Albanesius et al., defendants and respondents.
    [Filed June 23d, 1902.]

      Messrs. McFwan & McFwan, for the appellant.

      Messrs. Weller & Li'chtenstein, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the following reasons, stated by Vice-Chancellor Stevens, at the close of the hearing, on directing a dismissal of the bill of complaint:

There is no evidence whatever that Dr. Albanesius has abrogated the contract in any way. The evidence shows very plainly that it was the desire of Dr. Albanesius to fulfill the contract. There seems to have been some difficulty with respect to ascertaining what was due—the precise amount that was due. That is the evidence, and it also appears that within a few days after-wards Mrs. Peters moved to New York City, and Mr. Albanesius did not know where to go in order to make a tender of the money. Finally, he discovered her new place of residence, and tendered the money. The difficulty lay in the fact of an unsettled account which had not been settled before. It seems to me that if ever there-was a case in which diligence was shown—an earnest desire on the part of a purchaser to live up to his contract—I cannot conceive of any case in which greater diligence has ever been exhibited. It does not appear that Mrs. Peters made any tender of the deed, and because of this failure I think it is perfectly plain that Dr. Albanesius is entitled to the surplus. Time is-not of the essence of this agreement. I therefore dismiss the bill.

For affirmance—The Chiee-Justice, Van S yokel, Dixon, Garrison, Collins, Fort, Garretson, Hendrickson, Pitney, Bogert, Krueger, Adams, Vredenburgh, Voorhees, Vroom —15.

For reversal—None.


text:
    Edward G. Duffy, complainant and appellant, v. Alfred Hargan et al., defendants and respondents.
    [Filed June 23d, 1902.]

      Mr. James R. Nugent, for the appellant.

      Messrs. Sommer & Adams, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated by Vice-Chancellor Stevens in the opinion delivered in the court below. See 17 Dick. Ch. Rep. 588.

For affirmance—The Ci-iiee-Justice, Van Syckel, Dixon, Garrison, Collins, Fort, Garretson, Hendrickson, Pitney, Bogert, Krueger, Adams, Vredenburgh, Vooritees, Vroom —15.

For reversal—None.


text:
    Benjamin Hancock, complainant and respondent, v. Ellison Elmer, defendant and appellant.
    [Filed June 23d, 1902.]

      Mr. David J. Pancoast, for the appellant.

      Mr. Walter 11. Bacon, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion of Vice-Chancellor Grey delivered in the court' below. See 16 Dick. Ch. Rep. 558.

For affirmance—^The Chief-Justice, Van Syckel, Garrison, Garretson, Pitney, Bogert, Krueger, Adams, VredenBURGH, VOORHEES—10.

For reversal—Dixon, Collins, Hendrickson, Vroom—4.


text:
    Louis Hanneman et al., complainants and respondents, v. Matilda Richter et al., defendants and appellants.
    [Filed June 23d, 1902.]

      Mr. Charles J. Roe, for the appellants.

      Mr. Charles H. Hartshorne, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated by the chancellor in the opinion delivered in the court below. See 17 Dick. Ch. Rep. 365.

For affirmance—The Chief-Justice, Van Syckel, Dixon, Garrison, Collins, Fort, Garretson, Hendrickson, Pitney, Krueger, Adams, Vredenburgh, Voorhees, Vroom—14.

For reversal—Hone.


text:
    Frederick Hemsley, complainant and appellant, v. The Marlborough Hotel Company, defendant and respondent.
    [Filed June 23d, 1902.]

      Mr. Samuel H. Grey, for the appellant.

      Mr. Clarence L. Cole, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion of Vice-Chancellor Reed filed in the court below. See 17 Dick. Ch. Rep. 164.

For affirmance—The Chief-Justice, Van Syckel, Dixon, Garrison, Collins, Fort, G-arretson, Hendrickson, Pitney, Bogert, Adams, Vredbnburgh, Voorhees, Vroom—14.

For reversal—None.


text:
    Hiram E. Budd et al., complainants and appellants, v. The Camden Horse Railroad Company et al., defendants and respondents.
    [Filed June 23d, 1902.]

      Mr. Francis D. Weaver, for the appellants.

      Mr. Edward Ambler Armstrong, for the'respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated by Vice-Chancellor Grey in the opinion filed in the court below. See 16 Dick. Ch. Rep. 543.

For affirmance—The Chief-Justice, Van Syckel, Dixon, Garrison, Collins, Fort, Garretson, Hendrickson, Pitney, Bogert, Adams, Vredenburgh, Voorhees, Vroom—14.

For reversal—None.


text:
    Richard G. Stevenson, complainant and respondent, v. Joseph Willard Morgan, defendant and appellant.
    [Filed June 23d, 1902.]

      Mr. Charles V. D. Joline, for the appellant.

      Mr. Henry M. Snyder, for the respondent.
   Per Curiam.

The order appealed from is affirmed, for the reasons stated by Vice-Chancellor Stevenson in the opinion delivered by him in the court below. See 18 Dick. Ch. Rep. 707.

For affirmance—The Chief-Justice, Van Syckel, Dixon,' Garrison, Collins, Fort, Garretson, Hendrickson, Pitney, Bogert, Adams, Vredenburgh, Voorhees, Vroom—14.

For reversal—None.


text:
    Frank Lynwood Garrison, complainant and appellant, v. The Technic Electrical Works et al., defendants and respondents.
    [Filed June 23d, 1902.]

      Mr. Herbert A. Drake, for the appellant.

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

The decree appealed from is affirmed, for the reasons stated in the opinion of Vice-Chancellor Grey in the court below. See 14. Dick. Ch. Rep. 440.

For affirmance—The Chief-Justice, Van Syokel, Dixon, Garrison, Collins, Fort, Garretson, Hendrickson, Pitney, Bogert, Krueger, Adams, Vredenburgi-i, Voorhees—14.

For reversal—None.


text:
    W. Biddle Gilman, appellant, v. Frances Wayland Ayer, respondent.
    [Filed June 23d, 1902.]

      Mr. John W. Wescott, for the appellant.

      Mr. David J. Pancoast, for the respondent.
   Per Curiam.

Tbe decree appealed from is affirmed, for tbe reasons stated by Vice-Ordinary Reed in tbe opinion filed in tbe prerogative court. See 47 Atl. Rep. 1049.

For affirmance—The Chiee-Justice, Van Syckel, Dixon, Garrison, Collins, Fort, Garretson, Hendrickson, Pitney, Bogert, Adams, Vredenburgh—13.

For reversal—None.