author: Buchanan, Y. C.

text:
    County of Union, complainant, v. Charles A. Hopkins et al., defendants.
    [Decided January 3d, 1924.]
    1. In an interpleader suit each of the interpleading parties is, as to his own claim, .a party complainant and has the burden of establishing it by a preponderance of evidence.
    2. The right to payment of a reward is contractual and unless and until there has been essentially a complete performance of all the material terms and conditions specified in the offer, there is no completed contract and no one is entitled to payment of the reward.
    3. The statute (P. L. 1903 oh. 50) authorizing counties to offer rewards for the detection and apprehension of criminals in certain cases is to be liberally construed; and so likewise is an offer of reward purporting to be made pursuant to and under the authority of that statute.
    4. Except in accordance with the terms of that statute, counties have no power or authority to offer such a reward.
    5. An offer by a county of reward “for information leading to the detection, apprehension and conviction” of certain criminals differs essentially from an offer of reward “for the detection and apprehension” of such criminals “payable after conviction.’
    6. In the latter -case such persons as essentially cause the detection and apprehension, whether by giving information to the county or otherwise, have completed a contract with the county and are entitled to payment after conviction, irrespective of whether they or other persons have been instrumental in causing the conviction.
    7. In the former case there is no completed contract unless the detection, apprehension and conviction also are essentially caused by information given to the county and: not otherwise; and if there be a completed contract it is with those persons only who have oy giving information to the county essentially caused, or participated in causing, the specified result.
    8. Quwre is an offer in the first form valid under the statute aforesaid '?
    9. Acts done, or information given, prior to an offer of reward cannot constitute performance.
    On final hearing.

      Mr. John K. English, for the defendants Hopkins, Murphy and Schmidlin.

      Mr. Louis Messing, Jr., and Mr. William B. Wilson, for the defendants Orippo and Yardalis.

      Messrs. King & Yogi, for the defendants Lee and Smith.
   Buchanan, Y. C.

Complainant, Union county, offered a reward for information leading to the arrest and conviction of certain criminals. After their arrest and conviction the reward was claimed by eight different persons, and the county thereupon filed a bill of interpleader, paid the money into court, and obtained decree of interpleader against the claimants. One of the claimants, Rubenstein, defaulted at the hearing, leaving it to be determined which, if any, of the seven defendants above-named are entitled to the fund.

It appears that there had been in Union county a number of instances of the holding up of automobiles and trolley cars and the robbing of the occupants, and the board' of freeholders on February 17th, 1921, adopted a resolution, the pertinent part of which is as follows :

“Be it Resolved, That this board offer a reward of $500 for any information leading to the detection, apprehension and conviction of each person found guilty of taking part or participating in any way in any of the said holdups committed in Union county in the past three months.”

Thereupon the prosecutor of the pleas published the following advertisement:

“$500 REWARD.
Will be paid for information leading to the Arrest and Conviction of each of the three men guilty of Highway Robbery in connection with the recent Trolley Car and Automobile Hold-up eases which have happened in Union County since December 1st, 1920.
Information should be given direct to the undersigned or to John A. Galatian, Chief of Union County Detectives.
■Walter L. Heteield, Jr.
Prosecutor of the Pleas.”

The authority for the offering of the reward is to be found in P. L. 1908 ch. 28 p. 50.

“It shall and may be lawful for the boards of chosen freeholders of the several counties of this state, * * * to offer a reward not exceeding $500 for the detection and apprehension of any person guilty of murder, burglary, robbery, arson or other heinous crime in such county, such reward to be payable after conviction out of such funds of the county as may be applicable there) o.”

The following facts are either admitted or uncontradicted (except where existence of dispute is stated). At the time of the publication of the offer of reward it was generally known that the series of highway robberies had been perpetrated by a band of three men, but the identity of these men was not known. Following the offer of reward another holdup was attempted—an attack upon a trolley ear was made by three men on the night of February 25th at Townley in Union cpunty. The robbers caused the trolley to be thrown from the wire, and were discovered by the conductor as they approached the car. He gave the alarm to the passengers, and held the rear doors shut to prevent the entrance of the robbers during an exchange of a number of pistol shots between one of the bandits on the rear platform and the claimant Schmidlin (a deputy sheriff of Union county who happened to be a passenger on the car). The other two unsuccessfully tried to gain entrance at the front of the car, where the motorman was lying on the floor against the door, and all three shortly withdrew. Schmidlin had wounded one of them.

The trolley pole was replaced and the car was run to the water works or pumping station of the city of Elizabeth. Enroute, Schmidlin dropped off and went to the house of the claimant Murphy (who was also a deputy sheriff of Union county). On the arrival of the car at the pumping station the conductor, Lee, and the motorman, Smith (both claimants) telephoned the story of the holdup to the claimant Hopkins (who was chief of police of Union township), and also to the Elizabeth police station. Hopkins started out to look for the robbers.

Schmidlin, on his arrival at Murphy’s house, told him of the occurrence. While Murphy was dressing, Schmidlin telephoned to the Elizabeth police station, and also, it is claimed, to chief of county detectives Galatian (this latter being however in dispute). Schmidlin and Murphy started out to hunt for the robbers and found the trial of blood left by the wounded robber and followed this across country until the traces disappeared at some hay stacks. After unsuccessful efforts to discover a further trail Schmidlin left, as did also the Elizabeth policemen (some of whom had been sent out by Sergeant Kirkman, on receiving the phone messages from Lee and Hopkins). Shortly before Schmidlin left, Hopkins had joined him and Murphy.

Hopkins and Murphy continued the search and found further slight traces of blood which led them in the direction of Kenilworth. At Kenilworth they called out the claimant Vardalis,-who was a police officer or chief of police of the borough of Kenilworth.

It was by this time about four-thirty a. m. Vardalis spoke of a house where he thought it possible the criminals might have hidden, and the trio went there, but without results. Vardalis knew that suspicion had been directed toward the three Krebs brothers (John, Charles and Anthony). He spoke of this to Murphy and Hopkins, and the three went to the Krebs* house which Vardalis pointed out. Murphy and Hopkins had theretofore had no knowledge of the Krebs or their house, or the suspicion against them.

There is a dispute as to whether Vardalis or the other two determined to go to the Krebs* house—but that is immaterial, I take it. There is also a dispute as to whether or not the three of them stopped at the house of the claimant Grippo on their way to the Krebs* house. Vardalis says they did, and that Grippo advised them to go to the Krebs* house and break in the door if necessary. But that also is immaterial, in my view—they were going to the Krebs’ house anyway, and they did not have to break in the door.

There is also conflicting testimony as to the particular acts of the three after arriving at the Krebs’ house, but it is indisputable that between six-thirty and seven a. m. they entered the house, found Charles Krebs inside, wounded, and feeling assxxred of the identity of the guilty parties, search was continued and the other two, John Krebs and his brother-in-law Martin Shannon, were discovered hidden in the cellar and captxxred. The three criminals were taken before Grippo (who was a justice of the peace) and “arraigned,” then taken to Kenilworth police station, and at about eight-thirty a. m. Ooxmty Detective Galatian came there and .took them to the county jail, Galatian having been informed by Grippo that there had been another holdup and that officers had just gone to the Krebs’ house.

Some time on the same clay (February 26th) Galatian made criminal complaints against the three captives, in respect of each of the holdups, and on February 28th all three signed an allegation and entered a plea of guilty to each complaint, and were sentenced by the county judge on each plea.

Vardabs’ knowledge that the Krebs brothers were suspected came from Grippo. The latter had made some investigations and learned that the three Krebs brothers were not working, yet from time to time had money for gambling. John. Krebs was tall and Charles Krebs was short, and it was generally known that the offenses were being committed by three men, one of whom was tall and one of whom was short. It was also believed probable that ihese men lived in Kenilworth. Grippo had informed Vardalis of his investigations and conclusions before the offer of the reward. He also told County Detective Galatian, but there is a serious question as to whether he did this before or after the offer of the reward.

On these facts, what person or persons are entitled to payment of the reward?

The basis of the right to the payment of the reward is contractual. Furman v. Parke, 21 N. J. Law 310; and see §4 Oye. USO. A different situation might be presented if the statute itself directed the pajanent of a reward, where the right might be deemed purely statutory instead of contractual. But that is not the case here, the statute merely authorizes the making of an offer of reward and the payment thereof when earned; it authorizes the contract by the county. The contract consists of the offer or promise by the county, on the one side, to make a certain payment for the doing of a certain thing, for which the consideration is, on the other side, not a promise to perform but the actual executed performance. If, and when, a party actually perform the doing of the specified thing, the contract is complete; the county is bound by its promise, and the party who has performed is entitled, by contract, to payment. On the other hand, unless and until there has been a performance of the very thing specified, there is no contract, and no claimant is entitled to payment. Cf. Furman v. Parke, supra.

It is important therefore at the outset to see what the contract is—to determine the terms of the offer, or promise, in order to ascertain if there has been performance and, if so, by whom.

In the present case it will be observed that the language of the statute, and of the resolution, and of the advertisement, all differ. The language of the advertisement, however, need not concern us, since it is not the advertisement but the resolution which constitutes the offer or promise. The advertisement is a mere means of making the offer known.

The statute authorizes the county to offer a reward “for the detection and apprehension,” &c., “payable after conviction.” The resolution offers reward' “for any information leading to the detection, apprehension and conviction,” &c.

“Detection and apprehension,” I think, must mean, both in the resolution and in the statute, detection and apprehension by the county. Public policy requires that criminals shall be punished for their crimes. The general purpose and design of the statute was to lessen the possibility of escape from punishment among those guilty of serious crimes. In view of our system of criminal procedure, therefore—so far as concerns “apprehension”—it could not have been the intent of the legislature to authorize rewards for mere capture by private individuals. If in such a case the criminal escaped before the county authorities obtained custody of him the purpose of the statute would not be served, and I think under the necessary interpretation of the statute the authorization of the payment of reward in such a case is excluded.

So also as to “detection”—at least in cases where the identity of the criminal is unknown. It could not have been the legislative intent to authorize payment of reward for the discovery of the criminal’s identity merely by private individuals even though he is given into the county’s custody. I think it must be deemed that the legislature contemplated that the county should obtain knowledge or information of some sort sufficient, prima facie at least, to afford a rational ground for belief that the person in custody was the guilty man.

Of course it may be said that the statute, by providing that payment of the reward shall be made only after conviction, precludes payment for the detection of a criminal whose identity cannot be established or for the capture of a criminal who does not reach the county’s hands. But that does not militate against what I have said, for, in the first place, under the form of expression of the statute, the conviction is not made in terms a part of the thing to be performed by way of earning the reward, but is made the date of maturity of payment and a condition precedent to such payment; it is not necessary that the claimant of the reward shall have caused the conviction, and in the second place we have to consider not only the question of what contsitutes performance but the question of who performs. To illustrate: Suppose a case, identity of criminal unknown, and reward offered in the precise terms of the statute. A and B, working independently and unknown to each other, ferret out facts showing that X is the guilty man.. A is successful in this a day or two before B, and succeeds in personally capturing X, but while A is taking X to the county authorities, X escapes. A delays until the next dajr giving the county the facts showing X to be the criminal. Meanwhile B has preceded him in this, and C has found X in hiding and caused his arrest by the county. X is tried and is convicted upon the evidence of A. The reward has been earned and payment is due, but to whom? Clearly, under what I have indicated to be the true interpretation of the statute, the performance has been by B and C. They and they only are entitled to the reward. A accomplished detection and capture, but not by the county—that was done by B and C. A accomplished conviction, but that was no part of the work to be done by way of earning the reward.

Since detection and apprehension, as used in the statute, mean detection and apprehension by the county, the same meaning must be attributed to them in the resolution or offer sub judice, because the latter was made in pursuance and under the authority of the former, and there is nothing to indicate that any different meaning is to be attributed to them in the resolution.

That the resolution was made pursuant to the statute is shown by the fact that the statutory procedure and requisites were followed and performed, i. e., the request of the prosecutor, and the approval of the county judge. That it was upon the statutory authority is clear, for there was no other power to act. By the great weight of authority a municipality has no implied power to offer reward, and certainly the necessary implication from the terms of this act itself, granting power to offer rewards in certain cases and under certain conditions, is that counties shall not have power to offer rewards except in such cases and under such conditions.

If the offer had been in the language of the statute—“for the detection [by the county] and apprehension” (by the county)—those persons would be entitled who jointly or severally substantially caused such detection and apprehension. Considering the design of the statute and the public policy involved, it would not have been contemplated by the legislature that a person making the mere bald statement to the county that X is the guilty man, and a county officer making the mere actual arrest should be entitled to the reward (though perhaps they might be entitled to some share therein) where other persons had been the real effective cause—had done the actual work of discovery and detection and providing for the actual arrest.

The persons who have been the substantial and effective means or cause of the detection and apprehension by the county are the persons who earn the reward. Such is the natural interpretation to be placed on the statute. It accords with the language of the supreme court in Furman v. Parke, supra, where the reward was offered (by private persons) “for the apprehension and conviction“ of certain criminals, and the court says (at p. S15) : “Admitting that by a fair construction of the contract, the reward is to be paid to the person who gives the requisite information, or who is the moving cause, or the^ effective instrument of the apprehension and conviction,” &c.

Moreover, it is the interpretation necessarily to be placed upon the statute as it- seems to me from the following considerations.

The statute authorizes a reward to be offered only for “detection and apprehension.” It may not be offered for detection or apprehension alone (such an offer if made would presumably be ultra vires and invalid), and the reason is plain in the case of a criminal of unknown identity. In such a case it is of importance to the county not only that the guilty man be in fact apprehended, but that there be discovery or prima facie proof that the man in custody is the criminal. Hence the two together are specified as the consideration to be obtained by the county and an offer for either alone would be an offer or attempt to make a contract for a less consideration than that specified by the legislature.

The same reasoning does not apply in a case where the identity of the criminal is known. In such a case “detection” can refer only to discovery of his whereabouts. Yet discovery of his whereabouts, as distinguished from, and in addition to, his apprehension, is a matter of no importance from the standpoint of the consideration to be received by the county. If. and when the county obtains his apprehension, it has thereby also obtained discovery of his whereabouts. This is obvious, and must have been contemplated by the legislature.

It will not seriously be contended, I think, that the legislature meant to restrict the offer of rewards to those eases only in which the identity of the criminal is unknown. Such a conclusion would not accord with the purpose of the legislature and the public policy, involved. It is, and was, a fact necessarily contemplated by the legislature that as many (if not more) cases arise of known identity as of unknown identity in which the offer of reward is necessary or advisable in order to secure the general, legislative object—namely, the certain and speedy punishment of crime.

Yet the statute makes no distinction between the two classes of cases. In all cases the reward is to be for detection and apprehension. The word “detection” was not used meaninglessly or without reason. Prior to the passage of this act there was already legislation authorizing rewards to be offered by the governor (Criminal Procedure act, P. L. 1898 § 29 p. 876), and that act specifies “apprehension” alone (or “apprehension and securing”) as the consideration for which the reward is to be offered.

The only rational explanation which I can ascribe to the fact that the statute refers to detection conjunctively with apprehension as the consideration in all cases, including thosq of known identity of the criminal as well as those of unknown identity, is that the legislature had the matter in mind from the standpoint of both sides to the contract—it contemplated not only the consideration to be received by the county, but also the persons who might perform and become entitled to the reward. A suppositious case, which might frequently arise in fact, will illustrate: Reward offered, in the language of the statute, for X, a criminal of known identity. A discovers X’s whereabouts and arranges for his arrest by the county. While A and the officer are approaching X starts to flee, but B, happening to be near by, pursues and captures him and takes him back to the officer. B has accomplished the apprehension, but A accomplished the discovery of the whereabouts, and ‘’Tut for” his so doing the particular apprehension which was accomplished would not have taken place. The legislature meant that in such case B should not get the entire reward but that A and B should receive it.

So, as stated at the commencement of this discussion, in my view the statute not only naturally but necessarily is to be interpreted as intending that the persons who shall be entitled to the reward are those who have been the effective cause of the detection and apprehension—not those, or at least not only those, who give the bare information to the county and who do the bare taking into custody.

And similar interpretation is also to be placed, as I have heretofore shown, upon similar or analogous language or provision in the resolution or offer, in the absence of clear contra-indications.

It is evident, however, that there is, in form and wording at least, a marked difference between the offer in the resolution and an offer in the language of the statute. The latter is an offer to buy a certain result and to pay therefor to the persons effecting such result, without limitation upon the means or method by which the result is accomplished. The former is an offer to buy information and to pay therefor (by necessary inference) to the persons giving the information. True, that information must be information which “leads to” or (in fair paraphrase) “shall be the effective cause of” the same result (so far as “detection” and “apprehension” are concerned) as the result which the statutory form offers to buy. The resolution might fairly and properly be construed therefore as an offer to buy that result, if and when—but only if and when—accomplished by means of information given to the county. A statute of this kind is to receive a liberal construction toward the furtherance of the legislative purpose, and so also should a resolution of this kind.

But there are limits which even the most liberal construction cannot pass. I cannot escape the conclusion that the difference between the offer in the statutory form and the offer in the resolution is vital and essential, and that the resulting contracts in each ease are markedly and distinctly different. The difference lies • in the performance, and the importance of the difference lies in the determination of the person or persons who have performed—with whom has the contract in fact been made, and who is entitled to payment?

To illustrate by a simple case: Suppose an offer seeking the detection and apprehension of X, a criminal of known identity. A by clever detective work discovers his whereabouts, which are outside the state, and devises a plan to get him into the state, intending to cause his arrest. The plan works and X comes, but comes earlier than A anticipated and before A has arranged the capture or given any information to the county authorities, B accidentally sees and recognizes X, telephones the authorities and causes his arrest. If the offer of the reward were in the statutory form, clearly the performance would be by A and B both, for the acts of each are independent effective causes together actually ending in the result stipulated for. The resultant contract would be with the two, severalty, and they together would be entitled to payment (though not necessarily in equal shares). But if the offer were in the form of the present resolution, B alone would be entitled to payment, for the contract would be with him alone, since he alone performed the stipulated thing of giving the required information—or putting it in the other way, he alone accomplished the stipulated result in the stipulated manner by giving information to the county.

Naturally, such a result would not commend itself to a court of equity as desirable, since "morally” A should be entitled to share. But if that case were before this court on interpleader the reward would have to be decreed to B. The question would be one solely of legal rights—have either A or B or both any legal right to the reward—and would needs be determined upon the principles applicable to legal rights. No circumstances are present justifying the application of any equitable principles to modify the legal rights.

There is another difference between the resolution and the statutory form of offer, and that is that the former adds “conviction” as a necessary part of the performance.

The question occurs, in view of these differences, does the .resolution come within the authorization of the statute? If it does not then I take it it would be unauthorized and invalid and none of the claimants would be entitled to payment, notwithstanding the county’s admission that the money is due to some one or more of them. Let us assume, however, that the resolution is valid and consider the fabric of causation in the case at bar—it is not a single chain, but a combination of several chains.

The possible several elements of the causation of the detection and apprehension by the county, as disclosed by the evidence, might be specified as follows:

1. Information that the persons perpetrating the offences were three in number and that one of them was tall and one was short.

2. Grippo’s investigations and discoveries as to the three Krebs brothers.

3. Grippo’s communication of this information to Vardalis.

4. Grippo’s communication of this information to Galátian.

5. Schmidlin’s wounding of one of the perpetrators of the new holdup.

6. Schmidlin’s informing Galatian of the new holdup.

7. Schmidlin’s informing Murphy of the new holdup and of the wounding of one of the criminals. (This led zc Murphy coming out, and.it was Murphy who discovered the blood trail on the second search.)

8. Smith and Lee telephoning to Hopkins of the new holdup (thereby causing Hopkins to come out and join in the hunt. It was Hopkins who started the second search and who suggested seeing Vardalis).

9. Schmidlin, Hopkins and Murphy following the iraii of blood to the haystacks (leading to the subsequent determination of Hopkins to endeavor to pick up such trail).

10. The second search by Hopkins and Murphy and the discovery of the blood trail leading in the direction of Kenilworth, and their determination to see Vardalis.

11. Communication to Vardalis by Hopkins and Murphy of the information as to the new holdup, the wounding of one of the criminals and the following the blood trail toward Kenilworth.

12. Communication of information by Vardalis to Hopkins and Murphy as to the Krebs’ house and the suspicion against its occupants.

13. The visit of Vardalis, Hopkins and Murphy to the Krebs’ house and the discovery and capture of the three bandits.

14. Transporting the bandits to and incarcerating them in the Kenilworth police station.

15. Grippo informing Galatian of the new holdup.

16. Communication to the county authorities of information identifying the three captives as the perpetrators of the crimes mentioned in the offer of reward.

OÍ these items 1 and 2 must be at once discarded, since they occurred prior to the offer of reward, and hence could not be performance of the thing for which the reward was offered, nor performance in consideration of the offer. It is evident that it was for this reason, inter alia, at least, that the claimant Eubenstein defaulted at the hearing, since his statement of claim shows his claim to have been based upon the fact that he communicated information to Grippo, but that such communication was some days prior to the offer of reward.

In view of the form and meaning of tlie offer as made in the resolution, items 5, 9, 10, 13 and 14 must also be discarded, since they are the doing of acts, not the giving of information.

Items 3, 7, 8, 11 and 12 are each the giving of information, but none of them is a giving of information to the county or to any one authorized to receive information on behalf of the county, nor to any one for the purpose of being communicated to the county and actually so communicated. The offer, of course, by necessary implication, means that the information is to be given to the county or its authorized agents. The advertisement specifies Galatian and the prosecutor. This is not a special authorization, for the advertisement was not the offer and was not itself the act of the board of freeholders; but doubtless, Galatian, as chief of county detectives, and the prosecutor, would each have implied authority to receive the information. It would not be necessary to give the information to the board itself, though, of course, such communication would be effective.

This leaves 4, 6, 15 and 16 as the only.possible items which can be considered as constituting performance of the contract.

As to item 4—in the first place I am unable to perceive that Grippo has borne the burden of proof of establishing that his giving this information to Galatian was the effective cause, or an effective cause, of the detection and arrest. Obviously, as to his own claim, each interpleading claimant is a complainant and has the burden of proof. Assuming that Grippo gave this information to Galatian after the reward was offered and not before, and notwithstanding the testimony that it was arranged by Galatian, as a result of this information, that Yardalis should be notified of the occurrence of the next holdup and should immediately go to the vicinity of the Krebs’ house to detect, if possible, the bandits in the act of returning thereto, nevertheless that pian was not followed out—the circumstances that actually happened were different. The holdup of February 25th occurred about midnight. Yardalis was not notified of it until he learned of it from Hopkins and Murphy at four-thirty a. m. Possibly if he had then gone immediately to the vicinity of the Krebs’ house he might have seen the bandits returning to the house. But he did not go there until about six-thirty, and then, according to the testimony of Hopkins and Murphy, not of his own volition and initiative, but on the volition and initiative of Hopkins. The testimony of Hopkins and Murphy is entitled to at least equal weight with the testimony of Yardalis and Grippo in contradiction on this point. Indeed, the weight is rather with the former two, because of Yardalis’ delay of two hours—delay for which Yardalis, on his own testimony, was himself alone responsible.

It is true that except for the information they obtained from, Yardalis, Hopkins ancl Murphy would not, and could not, have gone to the Krebs’ House. But it is far from being proven that Grippo’s information to Galatian caused, or led to, the giving of the information to Hopkins and Murphy by Yardalis. By the testimony of Yardalis and Grippo themselves, Grippo had given to Yardalis the information about the Krebs, before February 17th, and also to Mayor Nitschke, and had given to Yardalis a John Doe warrant to use on the Krebs brothers, and Mayor Nitschke had directed Yardalis to watch the Krebs’ house before February 17th. There is at least equally, as much reason to conclude that all this, or some of it, caused or led to Yardalis’ information, to Hopkins and Murphy, as that Galatian caused it.

In the second place Grippo has not borne the burden of proof in establishing that be gave the information to Galatian after and not before the offer of reward. In fact I am satisfied that he did give it before the oiler of reward. The detailed explanation of the facts and reasoning necessitating this conclusion is unfortunately, but inevitably, so voluminous that I have excised it from this opinion.

As to items 6 and 15-—it seems sufficiently proven that Schmidlin called Galatian’s telephone and informed the person at the other end (who said he was Galatian and whom Schmidlin seems to have been, at the time, justified in believing to be Galatian) of the fact of the new holdup. Galatian says it was not he to whom Schmidlin .talked, and that he knew nothing of the new holdup until about seven a. m., when he was told by Grippo over the telephone. But whether Galatian first obtained that information from Schmidlin or from Grippo (and Grippo told him nothing more, except that the officers had left his house to go to the ICrebs’ house, to see what they might discover) is in itself of no moment; for the evidence is barren of anything to support the idea that the information, or the giving thereof, substantially led to, ot was an effective cause of, the detection or apprehension of the criminals.

Now, as to the last item, No. 16. Presumably some one communicated to the county authorities information sufficient to satisfy them that the three Gaptives were the ones guilty of the prior crimes, and if so that might be deemed information leading to the detection by the county. Perhaps information satisfying the county authorities that the three were guilty of this latest crime was sufficient to satisfy them that they were guilty of the prior crimes (in respect of which the reward was offered). The difficulty is, however, that the evidence does not show by whom any such information was conveyed, nor even in fact that any such information was given.

It appears that Galatian learned from Grippo, about seven a. M. on the twenty-sixth, that the Krebs had been arrested—■ but that was not identification of them as the criminals. It appears that there was a conference at which Galatian and all the claimants (except Lee and Smith) were present, on February 27th; but (omitting the question as to the validity of completing a contract on Sunday), it does not in fact appear that anybody gave Galatian any information then, and it appears by the bill (tacitly admitted by all the parties) that Galatian had made sworn complaints against the captives for all the crimes, on the twenty-sixth; so that he must have on that day been sufficiently informed as to their guilt. • There remains also the matter of “conviction.” Under the offer, to make the contract complete, there must have been information given leading to the detection, apprehension and conviction. It appears by the allegations of the bill (tacitly admitted by all claimants) that the three captives were in fact convicted of all the offenses referred to in the offer, such convictions being by way of signing “allegations” and pleading guilty, and being sentenced, on each of the complaints heretofore mentioned—all this being done on February 28th. But it does not appear what led the criminals to this action; it does not appear that there was not some other information given to the county which was the effective cause thereof. So that both on principle, and under the express decision in Furman v. Pandee, supra, this is a deficiency in the proofs which is fatal to the claims of all the interpleaders. Cf. also Codding v. Mansfield, 73 Mass. 272. I do not mean by that that no claimant could recover unless he showed that the information he gave to the county caused the detection, arrest and conviction—all three—but that none of the claimants can recover unless it be shown, at least, that information given by some of the claimants, severally or jointly, caused the entire stipulated result of detection, arrest and conviction. In other words, it must be proved that the contract was in fact completed according to the terms of the offer, whether by the single or several or joint action of one or more persons, and that if more than one person participated in the performance, all who did so participate must be parties in the suit, since the contract is entire, and though entire performance might be by the totality of the acts of several acting independently, no one of them alone could sue for or recover a part of the reward. Payment can be earned only as a whole and awarded only as a whole; although when so awarded distribution might be made severalty. Fargo v. Arthur, 43 Row. Pr. (N. Y.) 193.

The conclusion therefore is that none of the claimants has established a right to the reward or to any part thereof. None of the claimants has established that he performed the contract, nor that the contract was performed and that he performed part. The moneys involved (and paid into court) are public moneys and must be repaid to the county.

I have sought earnestly, but in vain, for some escape from this result, which cannot be contemplated with pleasure or satisfaction by a court of equitjq under the circumstances of the case. Morally speaking, the reward was earned; the county obtained that which was essentially the thing it sought —the detection, arrest and conviction of the offenders—and some, at least, of these claimants were instrumental in accomplishing this, though not in the manner prescribed by the county. In all probability the county had no reason for making the offer as it did, in terms differing from the statute, and indeed probably did not realize that it was making such variance, or at least that the variance might result in depriving persons substantially causing the detection and apprehension of the reward or any share therein. The county made no refusal to pay, but admitted that some or all of the claimants were entitled, and went as far as it could go, bjf paying the money into court. Under all these circumstances it may be difficult for the claimants or the public satisfactorily to comprehend the result, although, after all it rests upon the principle, universally known and understood, that a contract must be performed according to its terms, by one intending to claim thereunder.

Although the county makes no defence and is willing and anxious to pay, the claimants do defend against payment to each other, and payment cannot be made unless and until it is determined who is entitled to receive payment. Each claimant (or set of claimants) says that each of the others did not perform the offer and become legally entitled to the reward. There is a separate issue as to each claimant—did he or did he not substantially perform the contract? The mere determination, as to any or each particular claimant, that he did not perform,-does not prove that any of the others did. No one claimant can say, “it is proved that the other claimants are not entitled, hence the reward should be given to me, inasmuch as the county is willing to pay.” Each of the other claimants would have just as much right to make the same contention as to himself.

The propriety and advisability of framing these offers of reward in the statutory words is sufficiently indicated.

The county having been, in some part at least, responsible for the difficulty and the litigation, I am inclined to think that the costs of all the claimants should he paid out of the fund, and I will also entertain an application for counsel fees, of which application, however, the county shall be given notice.


source: Caselaw Access Project

author: Buchanan, V. C.

license: Public Domain

text:
    Samuel Kaplan et al., complainants, v. Samuel Wilderman et al., defendants.
    [Decided January 5th, 1924.]
    1. A covenant by a mortgagor, on behalf of himself only, to insure for the benefit of the mortgagee, is a mere personal covenant, not running with the land, and (without more) does not bind a subsequent grantee.
    2. Neither, in such a case, is there any implied agreement to assume and perform the obligation of the covenant to insure raised against the subsequent grantee, where the conveyance to him contains no assumption of that obligation and no assumption of the payment of the mortgage debt.
    3. On neither theory has the mortgagee any equitable claim upon, or interest in, the proceeds of insurance policies effected by the subsequent grantee solely for his own benefit.
    On final hearing.

      Mr. George J. Plechner, for the complainants.

      Messrs. Welcmko & Strauss, for the defendant Wilderman.
   Buchanan, V. C.

Complainants on April 29th, 1912, conveyed a certain farm property to one Nathan Bernier, subject to a first mortgage of five hundred and fifty dollars ($550), made by complainants, and took in part payment Bernier’s bond for nineteen hundred and fifty dollars. ($1,950) secured by mortgage on the property. Thereafter by quite a number of intermediate deeds, the farm was finally on May 22d, 1922, conveyed to the defendant Wilderman, still subject to both mortgages. Complainants still hold the second mortgage, on which there is matured due and unpaid a balance of fifteen hundred and fifty dollars ($1,550) principal, and interest at six per cent, per annum thereon from April 29th, 1921, for the recovery of which they seek the usual decree of foreclosure and sale. To this they are entitled.

Complainants, however, seek further relief in respect of the following facts: On December 29th, 1922, the buildings on the farm were destroyed by fire. The loss was covered (in whole or in part) by two insurance policies which had been procured by Wilderman, one made by the Mercer County Mutual Insurance Company for fifteen hundred dollars ($1,500), and the other by the American National Eire Insurance Company for four thousand dollars ($4,000). Neither policy contained any clause covering the interest of complainants as mortgagees or in anywise providing for the payment of any part of the insurance moneys to them. (The fifteen hundred dollar ($1,500) policy had a mortgagee clause in favor of the first mortgagee). In their present condition the premises are worth not over one thousand dollars ($1,000). Complainants seek to have an equitable lien impressed upon the insurance moneys to the extent of the amount due for principal and interest on their mortgage.

This contention is based on three grounds. First, upon a covenant made by the original mortgagor, Bernier, in his mortgage to complainants, to insure and keep insured the buildings and assign the policy to complainants as collateral security for the mortgage indebtedness. This, however, cannot avail complainants as against Wilderman, for the agreement does not purport to bind anyone but Remler himself (not his heirs or assigns), and such a covenant or agreement to insure is only a personal covenant, not a covenant running with the lands. Farmers’ Loan and Trust Co. v. Penn Plate Glass Co., 186 U. S. 434 (at p. 453). Compare also, National Bank v. Segur, 39 N. J. Law 173 (at p. 184 et seq.); Pipe Line Co. v. Delaware, Lackawanna and Western Railroad Co., 62 N. J. Law 254 (at p. 274) Bordentown v. Anderson, 81 N. J. Law 436.

Secondly, it is argued that upon some theory of implied contract, Wilderman became substituted as the convenantor in the mortgage by reason of his taking a deed for the property subject to the mortgage. This also is without foundation, for Wilderman, by the conveyance to himself, merely took title to the premises subject to the encumbrance—-there is no clause in his deed whereby-he assumes payment of the mortgage much less assumes performance of the covenant to insure. Under the law in this state no agreement to pay a mortgage is implied from acceptance of a deed to property subject to the mortgagee. The grantee is under no obligation to pay unless there be an express agreement so to do in his deed. Tichenor v. Dodd, 4 N. J. Eq. 454; Loudenslager v. Woodbury Heights Land Co., 64 N. J. Law 405. So much the more as to the raising of an implied obligation to insure and assign the policy.

Thirdly—or perhaps it should be said, thirdly and fourthly, for there are two distinct' contentions confused with each other, both in the pleadings and in the testimony—it is said that Wilderman made an express oral agreement with complainants to procure insurance protecting their mortgagee interest some time in the summer of 1922, and it is also said that Wilderman represented to complainants that he had procured such insurance and that they relied upon this false representation. Wilderman denies making either the promise or the representation. The burden of proof is of course upon the complainants, and a consideration of the testimony does not lead me to the conclusion that this burden has been met as to either of these two issues, especially in view of the fact that one of the complainants in testifying as to a certain conversation that he had with Wilderman, in one part of his testimony says that Wilderman promised to insure for the complainants’ benefit, and in another part of his testimony, as to the same conversation, says that Wilderman said he had already effected the insurance for the benefit of complainants.

Complainants must therefore fail upon their second cause of action.

Complainants will be allowed costs on the foreclosure decree, taxed as on an uncontested cause.


text:
    Harry H. Tantum, complainant, v. Anna Keller, defendant.
    [Decided January 9th, 1924.]
    1. Lease-contract, giving- lessee “first privilege to purchase,” examined and construed in the light of the entire instrument as giving lessee an absolute right or option to purchase at his election and as not limiting such right to lessee personally.
    2. Ordinarily such option in a lease is assignable, and passes with an assignment of the lease.
    3. Purely personal contractual rights are “non-assignable” only in the sense that they may not be assigned against the will of the other - contracting party.
    On final hearing.

      Mr. Gassel R. Ruhlman, for the complainant.

      Mr. James J. McGoogan, for the defendant.
   Buchanan, Y. C.

Defendant, being the owner of certain premises situate in the city of Trenton, leased the same for a term of five years, from January 1st, 1919, to Nathan Krupnick. The latter subsequently assigned the lease to Morris Horowitz, and he in turn to complainant. Written consent to each assignment, although not required by the terms of the lease, was in fact given by defendant, and the latter duly recognized complainant as tenant under the lease and thereafter accepted from him the rents reserved thereby.

The lease contained a clause or provision which is interpreted by complainant as an option to purchase. If it be such option, and exercisable by him (which are the matters in dispute), he has duly elected to exercise it, duly notified complainant of such election and tendered full performance on his own part, and defendant has refused to convey; wherefore complainant seeks a decree for specific performance.

The defenses interposed are purely legal—first, that the clause in question is not an option,. is not an irrevocable offer to sell which matures into, a legal obligation upon the election of lessee and tender of performance by him, but is instead a promise or obligation not to sell to anyone else without first offering to sell to the lessee; and second, that whatever right or interest enured to the lessee, by reason of this provision, was purely personal in the lessee, not assignable, and hence not now inherent in complainant. (A third defense is set up in the answer, but it is without merit and was abandoned at the hearing.)

The clause, the interpretation whereof is in dispute, reads as follows:

“First privilege is extended to the said party of the second part to purchase said property at any time during this lease term at a price of fifty-five husdred dollars, size of lot 26.6' x 100', more or less.”

It may be conceded that to one accustomed to legal nicety in the choice of words there is a distinct difference in’ definition between “privilege” and “right”; nevertheless, the two words are commonly used interchangeably as synonymous, not only amongst laymen, but by lawyers, and, indeed, not infrequently, it must be admitted, even in judicial opinions.

That the word “privilege” (if standing by itself), when used m such a provision as the one under consideration, is to be interpreted as equivalent to “right,” is not open to question, I take it, in view of the decisions in Hawralty v. Warren, 18 N. J. Eq. 124; Charles J. Smith & Co., Inc., v. Anderson, 84 N. J. Eq. 681, and Behr v. Hurwitz, 90 N. J. Eq. 110. Defendant in fact has not argued to the contrary.

Nor has she raised any issue as to the meaning of the word “extended,” which also is technically ill-chosen in the present instance, but which in common parlance is used with great frequency in conjunction with the word “privilege.” Clearty, it must here be interpreted as equivalent to “given.”

Her argument is rested upon the fact that that which is extended or given to the lessee is not “the privilege” to purchase,'but “first privilege” to purchase, and upon the cases of Holloway v. Schmidt, 67 N. Y. S. 169; Walsh v. Fort Schuyler Brewing Co., 146 N. Y. S. 160; Hill v. Prior (N. H.) 106 At. Pep. 641; Cloverdale v. Littlefield, 133 N. E. Rep. 565, and Reed v. Campbell, 43 N. J. Eq. 106, cited in support of the proposition that when the words “first privilege” or “first right” are used, the lessor’s intent must be deemed to have been not the creation of a positive obligation upon himself to convey, at the election of the lessee, but a negative obligation—to convey to no one else unless lessee should be unwilling to purchase on the same terms. These cases (except the last named) are all lease cases involving clauses giving lessee the “first privilege” or “first right” to a' renewal or second lease, and hold that the lessee is not given an absolute right to such renewal, but only a right to the first opportunity to renew if the landlord is then willing to lease to any one; that such is the necessary meaning if any force and effect is to be given to the word “first.” (In Reed v. Campbell, supra, the clause was “first right to léase the said premises for the next succeeding year or years”—but the meaning of “first right” was not decided, the case being disposed of on other grounds.)

Hpon the facts as stated in the opinions in the four cases just mentioned, I see no reason to differ from the conclusions therein reached. Indeed, my impression at the oral argument in this case was that the words “first privilege” must here be similarly construed. Consideration, however, leads me to a different result. The facts in the present case are different; it is a right or privilege of purchase, not of renewal of lease, and the additional language in the clause seems to me to be of controlling significance.

The most significant thing I deem to be the fixing of the price. The fact that the clause is in the lease at all (whichever way it be construed) shows that the lessee had wanted an option—an absolute right to purchase. Construed as such option, the fixing of the price and all the rest of the paragraph is perfectly natural and proper. But construed as a mere conditional right, it follows that the lessor was unwilling to give the option or absolute right, and we have this situation—that an owner who was unable or unwilling to decide then and there whether or not she would be willing to sell at all during the next five years for a certain fixed price, was, nevertheless, able and willing to decide that if, during the next five years she did desire to sell, she would sell at that certain fixed price. Such a situation is possible, but to my mind is highly improbable. Since she would not bind herself to sell, why should she bind herself to a price when conditions might change materially in five years ? The natural and probable thing under those circumstances would be to agree to give the lessee the first opportunity to buy at the price and terms she should then be willing to take from anyone else.

So, also, is the fixing of the size of the lot significant. It is an essential of a contract of sale that the premises be definitely described, and this description had been left rather indefinite in the lease itself, which referred to the subject of the demise as buildings.

Again, the lessee is to have the “first privilege” to purchase the property "at any time” during the five-year term. These words are much more consonant with the idea of an absolute right than a conditional right. Indeed, the more the entire paragraph is considered, the more apparent does it become that everything in it—except only the word “first” —-indicates that an option was intended thereby to be granted, rather than a mere privilege or conditional right.

The presence of the word “first,” however, is far from conclusive against the interpretation of an option or absolute right. At most, even if to arrive at that interpretation we have to discard “first” as mere surplusage (which to my mind is not necessary), it creates, as against the remainder of the language in the paragraph, merely a doubt, an ambiguity. And in such case, applying the rule of adopting the construction which is less favorable to- the grantor, we reach the result of determining the clause to- grant an option.

Moreover, if we assume “privilege” here to mean “option,” the word “first” is of no- more significance than it is when the words “first option” are used, as is not infrequent. See, for instance, the language of the clauses sub judice in Whitson v. Adams, 93 N. J. Eq. 456, and Kastens v. Ruland, 94 N. J. Eq. 451; 1 N. J. Adv. R. 320.

As I have said, I do not think it necessary to regard “first” as surplusage. In the cases where the words “first option” or “first right,” or equivalent terms are- used, I think it very likely, or at least very possible, that the parties thereby had reference to the contingency of an offer by a third party to purchase at the agreed price prior to the expiration of the- term, and that in such an event the lessee would have the right or option to purchase, but it would be a “first” right or “first” option, and that he could be! called on then and there to make his election whether to purchase or not. (I do not, of course, mean to be understood as being of opinion that this language is apt to express such supposititious intent, or that it wo-uld be- so construed if that particular question were the issue before the court.)

The remaining question, as to the assignability of the option, may be more speedily dealt with. Defendant does not deny that ordinarily an option to purchase is assignable, nor that it ordinarily passes with an assignment of the lease wherein E is contained. Charles J. Smith Co. v. Anderson, 84 N. J. Eq. 681. Her intention is that if the instrument shows that the privilege or option was intended to be confined personally to the lessee, then it is not assignable, and does not pass by assignment of the lease; and that in the present instance the lease shows that it was intended that the right or option was. confined to- the lessee personally.

Neither of these premises is true. When it is said that certain contractual rights are purely personal and not assignable, all that is meant is that they are not assignable against the will of the other party; that the latter cannot be compelled without his consent to accept the substitution of a stranger as a party to the contract, in the place and stead of the particular person with whom, and with whom only, he intended and was willing to enter into the contract. With his consent such contracts are assignable-, and may be, and often are, assigned. See 5 C. J. 884- § Í9; 2 R. C. L. 602 § If. I do- not understand the law in this state to be otherwise. Our adjudications do- not hold that a purely personal contract is not assignable if the other party assents, but indicate their so-called non-assignability consists simplv of tíre right of the other contracting party not to be compelled against his will to accept the substitution of a stranger in the place of the particular person with whom he has contracted. cf. Schlessinger v. Forests Products Co., 78 N. J. Law 637; Wooster v. Crane & Co., 73 N. J. Eq. 22 (at p. 25.)

Admittedly, in the present case, the defendant gave written consent to the assignment by the original lessee to complainant’s assignor, and to the assignment by the latter to complainant. However, neither the language of either of these consents, or of either of the assignments, appears in evidence, so that we are unable to determine whether (if the option were to be construed a purely personal right) the consents comprehend the assignment of the option as well as of the lease.

But the option is not in this case purely personal. Ordinarily it runs with the land and passes with an assignment of the lease-—vide the Smith Case, supra; also Hollander v. Central Metal Co., 71 Atl. Rep. 446. That upon which defendant relies in the instant ca'se to take it out of the general rule, is that the demise in the lease is to “the party of the second part, his heirs or assigns,” whereas the grant of option is only “to the said party of the second part,” and hence, it is argued, is meant to enure solely to him personally. To this it is sufficient answer to point out that the contract was obviously drawn, not by counsel learned in the law (as indeed is evidenced by having the demise, which is personal property, run to lessee’s heirs), but by a layman with a smattering of knowledge of legal forms and phraseology, and, further, that if defendant’s argument be accepted as sound, then it logically follows that every other covenant in the contract was intended to enure to, and be binding upon, only, the respective parties personally, and that it was also intended that the term should be cut short by the prior death of the lessor—for the instance specified is the sole instance in the entire document where such additional words are used to qualify or augment either party.

Complainant is entitled to the decree sought.


text:
    Edward D. Foley et al. executors, &c., complainants, v. William R. Devine, defendant.
    [Decided January 9th, 1924.]
    1. A testamentary gift of power of sale over real estate, although unlimited by the words of its creation, or other express language elsewhere in the will, may be limited by implication; the question is to be determined by the ascertainment of testator’s intent as in all cases of testamentary interpretation.
    2. Such a power of sale, when given to executors or trustees, not for their own personal benefit, must be deemed a power in trust and intended to be used only in aid of the other powers and duties devolving upon the donees.
    3. In such case a limitation in time is necessarily to be presumed, to wit, that the power is to continue only so long as there remains unfulfilled objects or purposes of testator in aid of which he intended that the power should or might be exercised.
    4. Such a power may, when necessary, be validly exercised for the purpose of providing funds for a judicial final accounting by, and compensation to, the donee in trust.
    On final hearing.

      Mr. Thomas Hagerty and Mr. William Danberry, for the complainants.

      Mr. Paul W. Biving, for the defendant.
   Buchanan, Y. C.

Complainants (vendors) pray decree against defendant (vendee) for specific performance of contract for the sale of certain lands in Middlesex county. The defense is that complainants cannot convey a good or marketable title.

The underlying question is as to complainants’ right or power to convey the lands in question, which were owned by complainants’ testatrix.

The latter’s will, probated April 18th, 1912, after providing for the payment of debts and funeral expenses and three small money legacies, proceeds as follows:

“Fifth. All, the rest, residue and remainder of my property both real and personal, I give, devise and bequeath unto my executors hereinafter named, in trust, to invest the same, and to use the net income therefrom and as much of the principal thereof as they may deem necessary, for the support, maintenance and education of Annie liendra, who now lives with me as Annie McCloskey, until she shall attain the age of twenty-one years; and upon the said Annie Kendra attaining the age of twenty-one years, then I give, devise and bequeath as much as may be left of my property, both real and personal, to her, her heirs, executors, administrators and assigns forever.
“If the said Annie Kendra does not attain the age of twenty-one years, then and in that case I give, devise and bequeath my said residuary estate unto St. Joseph’s Seminary of Baltimore, Maryland, by whatever corporate name it may be known, its successors and assigns forever.
“Sixth. I hereby constitute and appoint Edward D. Foley and his wife, Nellie Foley, executors of this my last will and testament, with power and authority to sell and dispose ,of any or all of my real estate, at such times and upon such terms as they may deem proper, either at public or private sale, and to make good and sufficient conveyances for the same, and I hereby expressly exonerate them from giving bonds.”

Annie Kendra survived testatrix, subsequently attained twenty-one years of age, and thereafter died prior to the making of the contract in suit.

The sixth paragraph of the will gives the executors a power of sale over the real estate; the fifth paragraph vests in them legal title to the real estate on certain trusts. There are, therefore, two branches to the investigation.

Complainants admit that they have not, and did not, have at the making of the contract any legal title under which they could sell and convey, SO' that it is unnecessary to pursue this branch of the investigation at any length. It may be said, however, that complainants’ admission in this behalf seems justified and necessitated. The language of the will indicates clearly to my mind that testatrix’s intent and meaning was a devise of legal title to the executors terminating at the date of Annie Kendra’s majority or at her death, whichever should first occur. If under the words of the will the extent of the legal title devised be otherwise uncertain, such extent will be implied, and such only, as is requisite and adequate to enable the performance of the trusts imposed upon the "executors.” The principle is the same as that applied where trust duties are imposed requiring legal title in the trustee, and no devise of any legal title is expressly made; in such ease a devise of legal title is implied to the extent requisite. Cf. Wright v. Keasbey, 87 N. J. Eq. 51 (at pp. 53, 54).

I think, therefore, that the legal title in the executors in fact terminated when Annie Kendra reached twenty-one years of age, and that she thereupon became vested of a legal estate in fee-simple therein.

Now, as to the power of sale. The words of its creation are as broad, general and comprehensive as could possibly have been used. There is no expressed limitation thereon of any kind, either as to territorial extent or time of exercise, either in the words creating it or elsewhere in the will. Is there any implied limitation? Complainants’ contention is, in effect, that in such a case there is not, and cannot be, any implied limitation thereon.’ Defendant contends that a limitation is implied by the devise to Annie Kendra, and that the power cannot now be validly exercised. Neither contention is correct in my view.

The fact that the legal title to the lands in question is devised to another, does not itself operate as such implied limitation. Bacot v. Wetmore, 17 N. J. Eq. 250; Wetmore v. Midmer, 21 N. J. Eq. 242; Hatt v. Rich, 59 N. J. Eq. 492; Randolph v. Rafferty (Court of Errors and Appeals), 92 N. J. Eq. 428. In such a case the devisee’s title is subject to the power of sale, and will be divested (even from subsequent grantees) by the valid exercise of the power. Hatt v. Rich, supra. So', also, where the title is in an heir instead of a devisee. Morse v. Hackensack Savings Bank, 47 N. J. Eq. 279.

On the other hand, it is obvious that there is an implied limitation, namely, as to time, upon these powers of sale, in practically every instance, to wit, such limitation as prevents it from violating the rule against perpetuities. If the testator should expressly say—“this power is to be exercisable at any time forever henceforth”—the grant of the power would be void from the beginning, as contravening the perpetuity rale. To prevent that result in the case of a power not limited in terms, a limitation must needs be implied—and it is implied unconsciously and as a matter of course. Yet how can even such a limitation be justly implied, except by reference to the testator’s purposes and objects for which, expressly or impliedly, the power was given ?

It would seem clear that a testamentary’’ gift of power of sale must stand upon precisely the same footing as any other testamentary gift; that the ascertainment and determination of its nature and extent is, as it would be in the case of gift of anything else, a matter of the ascertainment of the intent of the testator; and that such ascertainment and determination is to be gained as in all other cases from a consideration of the entire will and the surrounding circumstances (Cf. Torrey v. Torrey, 70 N. J. Law 673; Coyle v. Donaldson, 91 N. J. Eq. 138), and as well, therefore, by implication as by express words.

Where the power is not given to the donee for his individual benefit, but is given to a fiduciary, an executor or trustee, it is obviously given to him for the purpose of enabling him or assisting him to carry out the duties imposed upon him by the will, and for no other purpose. It is so difficult to conceive, as to be impossible of belief, that any testator should intend that an executor or trustee, after the termination of his duties—after the entire completion of the administration of the estate and of all testamentary trusts—• should still continue to hold, and to be able validly to exercise, indefinitely’, a power of sale—no matter how broad and unlimited the words of its creation. To what end? Eor what purpose? For whose benefit, since it may not be for his own benefit?

Even short of the period involved in the perpetuity rule, an unlimited power of sale would often be an unreasonable, if not intolerable, restraint upon alienation. The devisee of the land and his subsequent grantees take, subject to the exercise of the power of sale, as hereinbefore shown. An outstanding power of sale therefore would, as a practical matter, prevent the devisee from selling—for who would buy? Common sense indicates that a testator who devises lands to a beneficiary intends the latter to have the beneficial interest in those lands, except to the extent that it is impaired by a power of sale given for what the testator deemed paramount purposes. The power of sale is to be deemed paramount therefore to the extent of those purposes, but not further, to the extent, and the extent only, that there appear testamentary objects and purposes in aid of which the testator intended that power might be used.

The principle is stated in 31 Oyc. 1051: “The duration of a power is dependent upon the intention of the grantor or donor, as shown by the terms of the instrument creating it, the purposes had in view and the circumstances surrounding the transaction.”

There are a number of decisions in this state holding that limitations upon a power may be implied, including Bacot v. Wetmore, supra, and Cruikshank v Parker, 51 N. J. Eq. 21 (which are eases of limitation as to territorial extent. The latter was reversed (Cruikshank v. Parker, 52 N. J. Eq. 310) not, however, on the ground that an implied limitation could not exist, but on the ground that it did not exist in that case). Brearley v. Brearley, 9 N. J. Eq. 21, and Moores v. Moores, 41 N. J. Law 440.

The principle is stated in Peters v. Lewes Railroad Co., 18 Ch. Biv. 433, that “powers, although framed in general terms, are limited by the nature of the limitations contained in the settlement or will,” quoted' in Hatt v. Rich, supra, and Morse v. Hackensack Savings Bank, supra. I do not interpret the latter case, nor the appellate opinion in Cruikshank v. Parker, supra, as laying down any different rule. Rather does the Cruikshank Case (at p. 314 top) indicate precisely the same thing.

I take it as undoubtedly the law, therefore, that a power of sale, in trust, without limitation by express words as to the time of its exercise, is in all cases deemed to be limited in that regard by the objects and purposes in aid of which it was given—it is to be deemed that testator intends it to exist no longer than there remains unfulfilled any object or purpose for the furtherance of which it was created.

On the other hand, it is, of course, equally true that where it is apparent that there remains undone something which the testator intended the trustee should or might do, and in aid of which he intended the power of sale should or might be exercised, the power is still alive and may be validly exercised, except in those cases where the only person or persons intended to be benefited by such exercise elect the contrary. Cf. Maddock v. Progressive Investment Co., 79 N. J. Eq. 139 (at p. 142).

Such was the case in Hatt v. Rich, supra, and Randolph v. Rafferty, supra, and such is the case in the present controversy. Eor it appears by the supplemental proofs taken at the adjourned hearing that, although the administration proper of the estate of testatrix was long ago completed and the debts and expenses and legacies fully paid and allowed upon judicial accounting, nevertheless there has never been an accounting for the active trust; that such accounting was not made when the beneficiary attained her majority because of her mental condition (then supposed to be but temporary); that there still remains unpaid a part of the expense of the administration of that trust, to wit, compensation to the trustees for their services therein; and that there are no- assets whatever from which such payment can be made except the real estate in question [the four months’ rent since the death of Annie Kendra is not only insufficient for such payment, but is no part of the estate of the testatrix] that all the other assets of the estate have been disbursed in carrying out the provisions of the will and in accordance with such provisions.

[ conclude, therefore, that complainants may validly exercise the power of sale; that they are able to convey good and marketable title to defendant thereby, and that they are entitled to decree for specific performance. They should, of course, forthwith, upon the completion of the sale, complete their trust duties by a final accounting.

Under the circumstances no costs will be awarded.


text:
    Charles L. Clickner, petitioner, v. Ella G. Clickner, defendant.
    [Decided January 22d, 1924.]
    1. Annulment of marriage on the ground of fraudulent concealment of pregnancy will not be decreed where the evidence does not disprove the possibility that the husband had ante-nuptial knowledge of facts sufficient to put him on his guard against the contingency of existing' pregnancy.
    2. Where a suitor in equity has been guilty of false or misleading testimony and conduct in the prosecution and hearing of his cause his suit will be dismissed irrespective of whether or not he might otherwise be entitled to relief upon what the court finds from all the evidence to be the true facts material to the determination of the cause.
    On final hearing.

      Mr. John M. Cody, for the petitioner.

      Mr. Leon B. Cone, for the defendant.
   Buchanan, Y. C.

The suit is by the husband for annulment of marriage on the ground of fraud, consisting in the concealment by defendant of the fact that she was pregnant by another man. The defense is a denial of the alleged concealment—defendant claiming that she made full disclosure at the time petitioner asked her to marry him. There is an additional defense of ratification, which raises some interesting questions under the proofs, but these need not here be considered.

It appears that the pair first became really acquainted with each other in the latter part of December, 1921, were married February 22d, 1922, and that a child was bom of defendant July 14th, 1922. The defendant admits that petitioner was not the father of the child and that she knew that she was pregnant at the time of the marriage contract.

Assuming that these facts so admitted by her are duly proven and corroborated (for although this suit is not under the statute but addressed to the general equity jurisdiction of the court, the same rules and practice apply. See P. L. 1916 ¶. 109), nevertheless the burden still rests upon petitioner to prove the concealment by at least a preponderance of the evidence, for that is the gravamen of his suit. It is not the pregnancy which is ground for annulment, but the fraudulent concealment thereof.

On this issue (as to concealment) he testifies that she.did not inform him of her condition and he did not know of it until March 13th, 1922, when she became ill (apparently due to her pregnant condition), and his testimony as to the occurrences on that day (which is fully and thoroughly corroborated by his mother’s testimony),. is quite incompatible with a prior knowledge on his part. His mother, as a witness, made a very favorable impression upon me; her credibility was not assailed and she is contradicted only by the wife. As against this testimony on behalf of petitioner, there is the testimony of the wife that she told petitioner, when he asked her to marry him, that she could not marr}^ him or anyone because she was already pregnant as the result of a rape by her step-father, and that petitioner said that that would make no difference—he would provide a home for her and the child too. Taking her testimony throughout, it contains many inconsistencies and contradictions and it is perfectly obvious that as to some things at least she testified falsely. But on this particular point she is supported by Dr. Brookman (the minister who married them), a man of evident and unquestioned integrity, education and intelligence—in short, a witness of the highest possible character.

It appears that the husband and wife went to see Dr. Brook-man on March 15th (two days after the disclosure or occurrences of March 13th) to obtain his advice, and in the course of the conversation, he asked the husband if he had known of the matter before the marriage, to which the husband replied that he had, but had been so happy that he had not realized what it might mean. -Dr. Brookman was perfectly positive as to this question and answer, because he said such an attitude on the part of a husband so situated was so unusual and unexpected, and so commendable from his viewpoint that the incident stood out clearly in his recollection (It had happened less than two years ago.) There is no doubt in my mind but that this conversation and admission by the husband took place substantially as testified to.

Taking it prima facie therefore as an admission by the husband of ante-nuptial knowledge of the pregnancy, and weighing it against the apparent credibility of the testimony, given by the mother, it must be concluded, at the least, that petitioner has not sustained the burden of proof as to his allegation of concealment.

Consideration and analysis of the entire evidence leads me to the belief that in all probability the real truth of the matter is this: that defendant did not disclose to petitioner before marriage the fact of her pregnancy, but that she did disclose to him the fact that she had had previous sexual intercourse. Upon this hypothesis all of the evidence, including the false testimoiry, can be reconciled or explained.

The guilt of previous sexual intercourse would be much more apt to be overlooked by a person of the station in life of this petitioner (particularly in view of her story that it was rape by her step-father) than the fact of actual pregnancy and the likelihood of the birth of a child, not his own. to be supported and cared for by him. He might very well have failed to contemplate or realize, from the mere confession of intercourse—especially if she did not tell him the date thereof, or that it had occurred only a few months previously—the possibility or risk of resultant conception and birth. Hence, his admission to Dr. Brookman that he had had knowledge before marriage but was so happy he didn’t realize what it would mean—he having in mind his knowledge of her sexual intercourse, although Dr. Brook-man meant his inquiry to refer to the knowledge of pregnancy. (It is obvious that such a misunderstanding might readily occur, especially in view of the natural tendency of a minister toward euphemism and avoidance of ugly detail in discussing matters of this kind, and Dr. Brookman’s testimony is perfectly compatible with this theory.)

This also permits full credence to be given to the testimony of petitioner’s mother—to whom the whole disclosure came as a surprise on March 13th—and full credence to all or most of the petitioner’s testimony (and much of defendant’s) as to the occurrences at that time, since he then sustained the surprise and shock and realization of the pregnancy, and reacted thereto almost, if not quite, precisely in the same manner and to the same degree as if he had not been previously told of her unchastity.

Further corroboration is afforded by his subsequent conduct. The wife says, and the husband specifically testifies likewise, that he told her that if she would put the child away in an institution and come back to him and be a true and faithful wife to him he would accept her as such. Moreover he says he would have taken her back if she had put the child in an institution, but that after the child was born she refused to give it up, and that the cause for his bringing the annulment suit "is her words to me on July 30th that she was through with me.” These statements by him were evidently true—they were made by him on cross-examination and in a manner and under circumstances which preclude the idea that they were prepared or premeditated— and it is clear from all this that his repugnance was not toward his wife, but toward accepting paternal responsibility for, and society with, a child of the other man. There is nothing in his whole testimony to show that he ever accused or reproached his wife as having failed to tell him that she had had prior sexual intercourse, which bears out the idea that she had told him that much.

The only evidence which is not on its face compatible with this theory is—first, the testimony of the wife that she did inform petitioner, before her marriage, that she was pregnant; and secondly, the testimony of the petitioner to the effect that she did not so inform him even of the fact of previous intercourse. It would seem, however, only logical to conclude, in view of the other evidence and the common knowledge of the frailities of human nature, that the testimony of each, in these particulars, is false, and was given because of their respective self-interests in the outcome of the suit and the impulse or desire on the part of each to put himself (herself) and his (her) conduct before the court and the public in the most favorable light.

Acceptance of this hypothesis (that there was pre-nuptial disclosure of the fact of prior sexual intercourse, but not of the fact of pregnancy) as the real truth of the facts involved, will not, however, result in the award of decree of annulment, and this for three reasons.

In the first place the petitioner has been guilty of an attempt fraudulently to impose upon the court—to induce the court to believe that defendant did not disclose to him the fact of her previous intercourse and that he entered into the marriage in the belief that she was chaste. I do not recall that lie made a statement on the witness-stand squarely to that effect, but he does say so, squarely, in his petition, and it is also a necessary inference from his testimony as to the occurrences on March 13th. Moreover, he was asked if defendant had ever told him "in any way whatever" that she was going to be a mother, and he replied “No.” This attempt to deceive the court was obviously made in the -belief that it was necessary or advisable in making out his right to a decree, and for the purpose of endeavoring to obtain such decree. It seems to me therefore that denial of relief to petitioner might well be rested upon that ground, somewhat akin to the ordinary application of the equitable principles which require a suitor for equitable relief to do equity and to come into court with clean hands.

In the second place, it is clear that for petitioner to be entitled to annulment in a case of this kind he must prove that the wife knew of the fact of her pregnancy. Without such knowledge on her part there could not be fraudulent concealment by her. The only proof of the fact that the wife knew of her pregnancy before marriage is the testimony and admission by the wife—a party to the suit. The requisite corroboration is lacking. It might be argued that in the ordinary course of nature the probability is that a woman would know of her pregnáncy at a time when gestation was half complete, and that it would be extrpnWy unlikefy that a wife would admit that she had then known of her pregnancy, if that fact were not true, and that this should suffice for the necessary corroboration. But it is a matter of common knowledge that occasionally prospective mothers are unaware of their condition at points in the gestatory period even later than this, and (defendant's lack of credibility having already been noted) it might well be that she, although not in fact having known of her pregnancy at the time of the marriage, feared that this might not be believed and adopted the story that she did know, and did inform petitioner, as the more plausible one.

In the third place, I am of opinion that for a petitioner to succeed in a suit for annulment for the cause of fraudulent concealment of pregnancy, he must go further than merely to prove concealment of the fact of the pregnancy alone. He must show that he was ignorant that there had been sexual intercourse at a time so recent as to make it incumbent upon him .to' contemplate the possibility of a resultant existing pregnancy.

Carris v. Carris, N. J. Eq. 516, although holding that fraudulent concealment of pregnancy is ground for annulment, does not contravene the view above expressed. Indeed, the opinion cites, with at least implied approval, the decision ni Crehore v. Crehore, 97 Mass. 330, where decree of annulment was denied on the ground that the husband had been informed of circumstances sufficient to put him on his guard against the possibility of pregnancy.

In the present case it is evident to my satisfaction that before the marriage the defendant informed petitioner of the fact, at least that she had had antecedent sexual intercourse. In view of this, it was necessary for him to prove at the very least, that she did not tell him either the date on which this intercourse had occurred, or that it had occurred within a time sufficiently recent to make it necessary to contemplate the possibility of a resultant child.

The petition must be dismissed.


text:
    In the matter of Elihu H. Cooley et al., charged with contempt.
    [Decided January 29th, 1924.]
    1. Where a defendant who has been directed to convey lands to complainant, conveys instead to a stranger, such disobedience to the decree constitutes both a civil and a criminal contempt.
    2. Neither the belief that complainant’s conduct had been such as legally to result in an abandonment or loss of complainant’s rights under the decree, nor the advice of counsel, constitutes excuse for the contempt; although both factors are to be considered in determining the degree of the offense.
    8. An attorney is privileged to state to his client his opinion that a certain course of conduct will be proper and not in violation of a decree; but if the attorney goes beyond this and participates in the client’s conduct, or even advises the client to do the act in question, he does so at his peril, and if the client be guilty of • contempt the attorney is likewise guilty.
    4. Whether acquiescence or consent by bomplainant to the disobedience of the decree may constitute complete excuse in proceedings for criminal contempt—Qucere?

    5. If complainant-vendee, after decree for specific performance, refuses to perform on his part, defendant-vendor (if not desirous of enforcing the decree) may apply, in the cause, for relief from the decree and permanent stay of proceedings.

      On prosecution for alleged contempt.

      Mr. Augustus 0. Nash, for the prosecution.

      Mr. Gonover English and Messrs. Smith & Slingerland, for the respondents.
   Buchanan, V. C.

By the final decree of this court, entered February 24th, 192.2, the respondent Elihu H. Cooley was directed to make conveyance of certain lands and premises to Mary E. McVoy, by good and sufficient deed of conveyance. From this decree Cooley appealed, but unsuccessfully, and decree of affirmance was entered in the court of errors and appeals on June 19th, 1922, and remiiiiiur was filed in this court on July 24th, 1922.

Shortly thereafter Cooley executed and tendered to Mrs. McVoy a deed which purported to convey the premises subject to an inchoate right of dower of Bertha Baumann. The decree was by way of specific enforcement of a contract of sale made by Karl Baumann alone—his wife, Bertha, not having joined therein—and the premises having thereafter been conveyed by Baumann to his wife and by her to Cooley, with -no reservation of any inchoate right of dower. See McVoy v. Baumann, 98 N. J. Eq. 360; Ibid. 638. This deed Mrs. McVoy refused to acc.ept.

On August 29th, 1922, Cooley executed and acknowledged a deed for the premises in question to Ruth Naugle (another of the present respondents), notwithstanding the decree aforesaid. Mrs. Naugle, notwithstanding she knew of the decree . (having been informed thereof by her counsel, M—), accepted the deed and thereafter asserted ownership thereunder and resisted the efforts of Mrs. McVoy to obtain possession.

Naugle’s counsel, M—, was the same individual who had been solicitor and counsel for Cooley in the specific performance suit. He advised and participated in the drafting, execution and delivery of the deed of August 29th, 1922, by Cooley' and the acceptance thereof by Mrs. Naugle. This course of action, it will be observed, was more than a nonperformance of the command of the decree—more than a negative disobedience—it was a positive disobedience, and by it Cooley put it out of his power to comply with the decree.

That this conduct in fact constituted a contempt is, it seems to me, so clear as practically to admit of no argument. The contention which was put forward on the hearing was that by reason of certain facts (hereinafter mentioned) there had been an abandonment by Mrs. McYoy of her rights under the decree, and that hence disobedience to, and active disregard and violation of, the directions of that decree would not constitute contempt.

Assuming—but by no means deciding—that acquiescence or consent by Mr. McYoy to the doing of the. acts in question would constitute a valid excuse and! defence in a punitive proceeding for contempt (as the present proceeding is), the evidence utterly fails to show any such consent or acquiescence. There had in fact been no, abandonment by Mrs. McYoy of her rights under the decree. It has heretofore been adjudicated upon substantially the same evidence that there had been no such abandonment even as long thereafter as September, 1923. See McVoy v. Baumann, 1 N. J. Adv. R. 1529 (the opinion in this court has not yet been reported). The most that can be said is that M— and his clients believed that there had been an abandonment, and, even so, it must be observed that they arrived at such belief upon very scanty grounds—apparently the wish was father to the thought. It is pointed out in Kempson v. Kempson, 61 N. J. Eq. 303 (at p. 326), that, assuming that acquiescence or consent by complainant may excuse disobedience of a decree, it is at least requisite that such acquiescence or consent be very clearly and positively proven. M— assumes responsibility in the matter. He says, as do the Naugles, that they acted on his advice and had no thought that their conduct was a contempt. (Cooley has at all times been a non-resident and did not appear.) That respondents acted on the advice of counsel is no defence to contempt proceedings (West Jersey Traction Co. v. Camden, 58 N. J. Law 536); neither is the fact that they had no disrespectful intent necessarily a defence; although both of these factors may well be considered in extenuation and mitigation of punishment. That the act done was a violation of the court’s decree and that respondents intended to do that act, are facts sufficient to establish a contempt; the other factors may influence the determination -of the degree or character of the contempt.

The evidence shows that Mr. and Mrs. Naugle were acting together in the matter; that they intended to and did accept the deed in question and refuse delivery of the premises to Mrs. McYoy; that they knew of the decree, and hence, that they knew that they were participating in an act which was an active violation of the decree and a contempt, even though they did not realize or comprehend the legal significance of their conduct in that behalf. I am satisfied that they had no such realization or comprehension; that they were guilty of no intentional disrespect to the court; that they acted on .the advice of their counsel and believed that Mrs. McYoy had abandoned her rights under the decree. I find them guilty of contempt, but entitled to lenience in the matter of punishment.

As to the respondent Cooley, jurisdiction not having been acquired over his person in this proceeding, no adjudication of contempt can now be made as to him.

With regard to the respondent M—, it is evident from what has been said that he was the prime mover in this violation of the decree, both as to the making of the deed by Cooley and the acceptance by the Naugles. His explanation of his conduct is most singular. He says that he thought there had been an abandonment by Mrs. McYoy of her rights under the decree and that therefore the decree was at an end. He knew, of course, that there had been no express or explicit abandonment by Mrs. McYoy; he knew that at most his idea that there had been such abandonment by her was a judgment or conclusion of his own as to the result or effect of the intermediate circumstances. Those circumstances, as he explained them, were that Mrs. McYoy’s solicitor liad refused to accept the deed tendered by him on June 23d, 1922; that lie thereafter notified her solicitor that the tender of that deed would be kept open until some time in •July, but no longer; that the deed was not accepted within this time, nor was there any payment into court by Mrs. McYoy of the balance of the purchase price as required by the decree; that inasmuch as the decree directed performance by both parties within ten days from its date he felt justified in deciding and declaring that Mrs. McYoy had no further rights, and in acting upon that assumption, as he thereafter did in the matter of conveying to the Naugles; he disavows any intentional disrespect toward the court and earnestly contends that there was no violation of the decree, and hence no contempt.

He offered in evidence the correspondence between himself and Mrs. McYoy’s solicitor, covering a period from June 24th, 1922, to September 15th, 1922. By these letters it appears as explicitly as can possibly be imagined that M— was insisting that Mrs. McYoy should accept the deed, subject to the dower encumbrance, and do so promptly, otherwise Cooley would consider her rights as ended and that on the other hand Mrs. McYoy’s solicitor was rejecting that deed as improper and demanding a deed in accordance with the decree. He knew therefore that there was no intentional abandonment by Mrs. McVoy, and no matter how strong was his own belief that she had lost her rights, he knew she did not believe she had lost them; he knew that he was assuming to act, not on a thing he knew as a fact, but on his opinion-es to a matter of law. Indeed, in his last letter (September 15th, 1922) he says, after speaking of the tender of the deed and its refusal: “This, in my opinion, constitutes &■ rejection of the terms of the decree by complainant, and leaves the title to, and ownership of, the lands in Cooley.” (The italics are mine.)

Now, in the face of the facts as he knew them, and of the judicial opinions in the case, and the terms of the decree, how could any competent solicitor arrive at the opinion that a deed subject to a dower right in Mrs. Baumann was a deed in compliance with the decree? She and her husband had both conveyed to Cooley, without reserving any such dower right. Her equitable right, if any she had, to a portion of the purchase price had been provided for, by her own request and consent, under the clause of the decree that the purchase-money be paid into court so that she might have opportunity to prove how much, if any, of it should be paid to her as compensation for her dower right. However, I cannot doubt but that M—, in fact, had this opinion, and that he also had the opinion that Mrs. McVoy, by refusing this deed, had lost her rights.

But even so, he knew, as I have said, that these were only his opinions, and that he was matching his opinion against that of Mrs. McVoy’s solicitor. It had just been demonstrated to him in the result of the suit, that in that instance the latter’s opinion as to matters of law had been better than his own. Iiow could he dare to advise and instruct his clients to act in disobedience to a decree upon the strength of what he knew was only his own opinion. He knew, or as a lawyer ought to have known—especially since he was assuming to give his clients legal advice upon this -point—that in so doing they would act at their peril, and that he in advising them so to do was acting likewise at his own peril. An attorney may advise his client that in his opinion an order is invalid, or has become ineffective, or that rights under it have been lost, or that a certain act will not be a disobedience or a contempt. This is both his privilege and his duty as a lawyer to his client. But when he goes further and advises the client to do the act he goes beyond his privilege, and if the. act is a disobedience and contempt he is equally guilty with his client. Cf. In re Noyes, 121 Fed. Rep. 209; Anderson v. Comptois, 109 Fed. Rep. 971.

A decree for specific performance is, of course, operative and binding upon both parties; the decree is that complainant perform as well as defendant. Where either party desires to avoid the effect of the decree because of matters arising subsequent to the decree (such asu settlement between the parties, refusal or neglect of the other party to perform, or inequitable conduct of the other party), the proper course is to apply in the cause for a permanent stay of all proceedings. Rosenstein v. Burr, 83 N. J. Eq. 491. Cf., also, Hudson Trust Co. v. Boyd, 80 N. J. Eq. 267; Smith v. Smith, 84 N. J. Eq. 13; Barnett Foundry Co. v. Iron Works Co., 85 N. J. Eq. 359. That is the course which M— should have advised his clients to pursue in the present instance, instead of assuming himself the right to determine the legal result of the conduct of the parties subsequent to the decree.

M—’s explanation therefore is not a valid excuse for his conduct. I believe, however, his explanation in fact is true, and I acquit him of intentional disrespect or flagrant contempt. He is nevertheless guilty of an actual contempt.

This disposes of the findings as against all the respondents. The determination of the punishment which should be imposed may await somewhat further consideration.


author: Ckurci-i, V. C.

text:
    George H. Englehard, receiver of Schroeder & Rogers, complainant, v. George Schroeder and Mae D. Schroeder, defendants.
    [Decided January 2d, 1924.]
    Wlhere a bond provides that the obligors shall “in all respects conform and abide by any order, direction or decree of the chancellor, which shall be made against them, or either of them, by the said chancellor for payment of costs, expenses or otherwise to the chancellor, or such person or persons as he shall direct,” such bond can be enforced in this court, without bringing a suit at law upon it.
    On bill, &C.

      Messrs. (Joult & Smith for the complainant.

      Messrs. Ziegener & Lane, for the defendants.
   Ckurci-i, V. C.

The two questions which seem io me important are—first, is the National Surety Company entitled to be heard on the merits of the application?

The learned, counsel for the complainant in his brief states that he appears also for the National Surety Company. I, therefore, think that the company is in court for the purposes contemplated by the motion.

The second point is that recovery must be had on the bond at law, for the reason that the bond is not conditioned in the language of rule 207. The words of the rule are:

“The damages to be ascertained in such manner as the court shall direct.”

The words of the bond are:

“In all respects conform and abide by any order, direction or decree of the chancellor which shall be made against them, or either of them, by the said chancellor for payment of costs, expenses or otherwise to the chancellor, or such person or persons as he shall direct.”

The condition of the bond, therefore, is for the payment of costs which, it seems to me, can only be fixed and determined by the court of chancery. I see no reason why there should be any action at law. The amount of the costs, expenses, &c., have been fixed by the final decree of this court.

I will therefore deny the application to dismiss the petition of Mae D. Schroeder.