text:
    Mary J. Robinson, respondent, v. Samuel D. Robinson, appellant.
    [Submitted December 1st, 1914.
    Decided March 1st, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 83 N. J. Eq. 150.

      Mr. John F. X. Ries and Mr. Ulysses G. Styron, for the appellant.

      Mr. Eli H. Chandler, for the respondent.
   Per Curiam.

This appeal is from a final decree in a suit for divorce a mensa et ihoro brought by the wife against her husband on an allegation of adultery. The adultery was clearly proved. The defence principally relied on in the court of chancery was that the parties to the suit were not, and never had been, husband and wife. That there had been a ceremonial marriage between the parties was not denied by the defendant, but he insisted that when it took place the petitioner was a married woman. This the petitioner admitted; but she proved to the satisfaction of the vice-chancellor that at the time of her marriage to the defendant a divorce proceeding instituted by her against her first husband had been pending for more than a year; that the funds required by her for'prosecuting that suit had been supplied by the defendant; and that before her marriage with him she had been advised by her solicitor in the action against her first husband that .a decree for divorce had been granted. It further appeared in the proofs that at the time of their marriage both the petitioner and the defendant believed that she had been divorced from her first husband, and that there was no legal obstacle to their marriage. It further appeared that the decree divorcing the petitioner from her first husband was entered only a few days subsequent to her marriage with the defendant, and that thereafter they continued to live together as husband and wife for a number of years. Although some of these facts were controverted by the defendant, the vice-chancellor found all of them in favor of the petitioner. That finding, in our opinion, was justified by the testimony submitted. That being so, the case comes directly within the ruling of Chamberlain v. Chamberlain, 68 N. J. Eq. 736, in which this court held that “when a man and a woman intend to many and live together as husband and wife, but their intent is frustrated by the existence of some unknown impediment, when the impediment is removed, and it is shown that the same intent continues, their relations are lawful.”

The decree under review will be affirmed.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Terhune, Heppenheimer, Williams — 15.

For reversal — None.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Nemeth Karoly et al., respondents, v. Hungarian Reformed Church of New Brunswick, New Jersey, appellant.
    [Argued December 2d, 1914.
    Decided March 1st, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 83 N. J. Eq. 514.

      Messrs. McCarter & English, for the respondents.

      Messrs. Pitney, Hardin & Skinner, for the appellant.
   Per Curiam.

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

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Terhune, Heppenheimer, Williams — 15.

For reversal — None.


text:
    William F. Mullin, appellant, v. Emma L. Vogt et al., respondents.
    [Submitted December 7th, 1914.
    Decided January 27th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 82 N. J. Eq. 450.

      Mr. Ralph E. Lum, for the appellant.

      Mr: Joseph Kahrs, for the respondent.
   Per Curiam.

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

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Terhune, Heppenheimer, Williams — 15.

For reversal — None.


text:
    Annie Schaufele, appellant, v. Charles Banscher et ux. et al., respondents.
    [Submitted December 7th, 1914.
    Decided January 27th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 83 N. J. Eq. 117.

      Mr. Joseph J. Summerill, for the appellant.

      Mr. David O. Watkins and Mr. Austin H. Swackhamer, for the respondents.
   Per Curiam.

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

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Terhune, Williams — 14.

For reversal — None.


text:
    James M. Seymour, respondent, v. German Insurance Company, appellant.
    [Submitted December 7th, 1914.
    Decided March 1st, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported .in 83 N. J. Eq. 37.

      Messrs. Raymond, Mountain, Van Blarcom & Marsh, for the respondent.

      Messrs. Vredenburgh, Wall & Carey, for the appellant.
   Per Curiam.

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

For affirmance — Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Williams — 9.

For reversal — The Chief-Justice, Swayze, Trenchard —3.


text:
    Mary A. Wootton et al., respondents, v. Michael Seltzer et al., appellants.
    [Argued November 19th, 1914.
    Decided March 1st, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 83 N. J. Eq. 163.

      Messrs. Wilson & Carr, for the respondents.

      Messrs. Bourgeois & Coulomb, for the appellants.
   Per Curiam.

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

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Kalisch, Black, Bogert, Vredenburgh, White, Heppenheimer — 12.

For reversal — None.


text:
    Frank P. Russell, complainant, v. Russell-Robinson Company, defendant.
    [Argued November 24th, 1914.
    Decided March 1st, 1915.]
    On appeals of Aetna Life Insurance Company from orders of the court of chancery advised by Vice-Chancellor Stevens, upon receipt of the advisory opinion of the supreme court reported in Russell, Receiver, v. Russell-Robinson Company, 86 N. J. Law 13.

      Messrs. Collins & Corbin, for the complainant.

      Messrs. Kalisch & Kalisch, for the defendant.
   Per Curiam.

The order appealed from will be affirmed, for the reasons stated in the advisory opinion of the supreme court, delivered by Mr. Justice Garrison, in response to certain questions certified to that court by the chancellor.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, Williams — 11.

For reversal — None.


author: Walker, Chancellor.

text:
    Edwin Robert Walker, Chancellor.
    John R. Emery, Frederic W. Stevens, Eugene Stevenson, Edmund B. Leaming, James E. Howell, Vivian M. Lewis, John H. Backes and John Griffin, V ice-Chancellors.
    Henry W. Bull et al. v. International Power Company.
    [Decided February 11th, 1915.]
    1. Section 65 of the act concerning corporations, Revision of 1896 (P. L. p. 277), providing for the appointment of receivers or trustees of insolvent corporations, as amended by act of April 1st, 1912 (P. L. p. 5S5), analyzed.

      2. The court of chancery is a high court of general jurisdiction over the subject-matters which fall within its cognizance. Bike the common law courts of general jurisdiction, its final judgments, namely, its decrees, do not, to be valid, have to show upon their face that all jurisdictional requirements have been complied with, as is the case with inferior tribunals of circumscribed and limited jurisdiction.
    3. In a decree in chancery there need not be in the ordering or mandatory part an adjudication of the existence of facts warranting the making of such decree, although they may be stated in the recitals preceding the decretal paragraph, or may be omitted entirely. A decree entitled in the court and cause may properly proceed to adjudicate the rights of the parties and award appropriate relief without the recital of pleadings or evidence, and such decree will be valid if the record in the case demonstrates that the cause was properly cognizable by the court, and the decree is within the .issue raised by the pleadings.
    4. The final decree of the court of chancery is not required to recite facts establishing jurisdiction; yet it is quite usual and proper, and the better practice, to succinctly set out the findings of the court in the recital part of the decree, and, where that has been omitted to be done, either party may, if he chooses, have the decree, already entered without such recitals, amended so as to include them, provided the chancellor in his discretion is willing to order such an amendment to be made.
    5. A final decree may be amended even after enrollment by inserting a clause which was inadvertently omitted in drawing it and which is necessary to give effect to the remedy of the successful party. Such decree cannot be varied in substance without a rehearing, but it may be corrected or amended, on motion, as to mere clerical errors, or by the insertion of any provision or direction which would have been inserted as matter of course if asked for at the hearing as a necessary and proper clause to carry into effect the decision of the court.
    6. A court of record has the inherent power to correct its own record by an order nuno pro tunc, even after appeal — for while, by an appeal, it loses jurisdiction of the case, it does not of its record — as where, through inadvertence some matter has been omitted from the record or some untrue statement inserted, or where the judgment entered contains misrecitals. The power of correction is confined to showing correctly the history of the proceedings before the appeal, and the lower court has no jurisdiction, pending an appeal, to interfere with the rights of parties under a judgment or decree.
    7. An appeal from the court of chancery to the court of errors and appeals, while it removes the cause and the potential record, does not actually remove the physical record; that is, the papers constituting the record remain in the court of chancery, whose jurisdiction over the record, pending appeal, is ousted only to the extent of preventing the decree in the court of chancery from destroying or impairing the subject of the appeal, or being in any degree used for that purpose.
    8. The court of chancery has the power to correct clerical errors, errors of form or mistakes in the drafting of decrees, as distinguished from judicial errors, pending appeal from its decree to the court of errors and appeals.

      9. A decree in chancery will be-amended by the insertion of a clause inadvertently omitted and which would'have been included as matter of course if asked for at the hearing; and this pending an appeal, provided its effect would not change the status or interfere with the rights of the parties under the decree.
    On motion to amend decree after appeal.

      Messrs. Vroom, Dickinson & Bodine, for the motion.

      Messrs. Bleakly & Stockwell, contra.

   Walker, Chancellor.

On December 11th, 1914, a decree was entered in this case adjudging the defendant corporation to be insolvent, awarding the usual injunction and appointing a receiver, both under the statute. An appeal was taken to the court of errors and appeals by the defendant on December 14th, 1914. The decree appealed from recites that

“the business of said defendant corporation has been, and is being conducted at a great loss and greatly prejudicial to the interests of its creditors and stockholders, and that it is insolvent, and that a receiver for the defendant should be appointed,” &c.

The act concerning corporations (Rev. 1896; P. L. p. 277), in section 65, provides for the appointment of receivers or trustees for insolvent corporations. That act was amended on April 1st, 1912. P. L. 1912 p. 535. The section, as amended, with the newly-added or amendatory words in italics, reads as follows:

“Whenever any corporation shall become insolvent or shall suspend its ordinary business for want of funds to carry on the same, or if its business has been and is being conducted at a great loss and greatly prejudicial to the interest of its creditors or stockholders, any creditor or stockholder may by petition or bill of complaint setting forth the facts and circumstances of the case, apply to the court of chancery for a writ of injunction and the appointment of a receiver or receivers or trustee or trustees, and the court being satisfied by affidavit or otherwise of the sufficiency of said application, and of the truth of the allegations contained in the petition or bill, and upon such notice, if any, as the court by order may direct, may proceed in a summary way to hear the affidavits, proofs and allegations which may be offered .on behalf of the parties, and if upon such inquiry it shall appear to the court that the corporation has become insolvent and is not about to resume its business in a short time thereafter, c.r that its business has been and is being conducted at a great loss and greatly prejudicial to the interest of its creditors or stockholders, so that its business cannot be conducted with safety to the public and advantage to the stockholders, it may issue an injunction to restrain the corporation and its officers and agents from exercising any of its privileges or franchises and from collecting or receiving any debts, or paying out, selling, assigning or transferring any of its estate, moneys, funds, lands, tenements or effects, except to a receiver appointed by the court, until the court shall otherwise order.’"

The section, as it originally stood, is as above recited, save that there is not contained therein the italicized words.

It appears, therefore, that prior to the amendment of April 1st, 1912, a receiver could be appointed for a corporation which had become insolvent or had suspended its ordinary business for want of funds to carry on the same. Now, a receiver may be appointed, not only if the corporation be in the situation just described, but, also, if its business has been and is being conducted at a great loss and greatly prejudicial to the interest of its creditors and stockholders. This language is in that part of the section which permits application to be made for the appointment of a receiver, and, later, in that part of the section which speaks of what may be made to appear to the court on the summary hearing, it is provided that if the corporation has become insolvent and is not about to resume its business in a short time thereafter, or that its business has been and is being conducted at a great loss and greatly prejudicial to the interest of its creditors and stockholders, so that its business cannot be conducted with safety to the public and advantage to the stockholders, the court may issue an injunction, &c., and appoint a receiver, &c.

Now, in the recital part of the decree in this cause, is this statement:

“and it appealing to the court upon such summary inquiry that the business of said defendant corporation has been and is being conducted at a great loss and greatly prejudicial to the interest of the creditors and stockholders,”

and it proceeds, "and that it is insolvent, and that a receiver for the defendant company should be appointed by this court,” &c.

It is, therefore, apparent that the provision in the latter part of the section which reads, “that its business cannot be conducted with safety to the public and advantage to the stockholders,” is omitted. The first part of the phrase, “so that its business cannot be conducted,” is part of the newly-added matter in the amendment of 1912. The words “with safety to the public and advantage to the stockholders” are in both the original and amended acts.

Counsel for complainant now moves “to amend, or for an order amending nunc pro tunc, the decree entered in the above-entitled cause on December 11th, 1914, by inserting therein, after the word ‘stockholder/ line 2, page 2, the following: ‘so that its business cannot be conducted with safety to the public and advantage to the stockholders / and further, by inserting in said decree, after the word ‘insolvent/ line 3, page 2, the following: ‘and is not about to resume its business in a short time thereafter/ and further, by inserting therein, after the word ‘insolvent/ line 11, page 2, the following: ‘and is not about to resume its business in a short time thereafter/ and further, by inserting therein, after the word ‘stockholders/ line 14, page 2, of said decree, the following: ‘so that its business cannot be conducted with safety to the public and advantage to the stockholders.’ ”

The first two amendments asked for relate to the recital part of the decree; the last two to the ordering part. On the argument counsel abandoned any request for amendments in the ordering part of the decree upon the theory that if the court recites the facts which it finds, its order need not contain them, but may proceed to decree the relief to which the party is entitled upon the facts found. This is sound. Surely, if a decree recites all of the jurisdictional facts upon which relief may be grounded, it need only proceed to award the appropriate relief. But, such recitals are unnecessary, as will hereafter appear.

It seems to me, however, that the complainants are entitled, ’ if they desire, to have the statutory words, “so that its business cannot be conducted with safety to the public and advantage to the stockholders/’ inserted.

Examination of many decrees of insolvency, and appointment of receivers in important cases, I think, will disclose that the recitals do not follow closely and literally the 'statutory language.

Counsel for defendant company urged that Atlantic Trust Co. v. Consolidated Electric Storage Co., 49 N. J. Eq. 402, is an authority, to the effect that tire decree, to be valid upon its face, should show that all of the statutory requirements are found to exist. Upon examination it will be seen that that case dealt not with the form of a decree adjudging insolvency, but only with tire sufficiency of the facts which would warrant the making of the decree. Said Vice-Chancellor Van Fleet, in that case (at p. 404) :

“The power to dissolve an insolvent corporation and wind it up is statutory. It formed no part of the original jurisdiction of the court. It was conferred by a statute passed in 1829, and the language by which it was conferred has remained unchanged from that time to the present. Elm. Dig. 32 §§ 11, 13; Rev. p. 189 §§ 70, 72. This statute empowers the chancellor, on the application of a creditor or stockholder, alleging that the corporation in which he is interested has become insolvent, to proceed in a summary way to inquire into the truth of such allegation, and if, upon such inquiry, it shall be made to appear that the corporation has become insolvent, and shall not be about to resume its business in a short time, with safety to the public and advantage to’the stockholders, he may enjoin it from the further exercise of its franchises, and also from the further transaction of business; and he may also, at the same time, or at any subsequent time during the continuance of the injunction, if, in his judgment, the circumstances of the case and the ends of justice require, appoint a receiver to dispose of its assets and distribute the proceeds.”

In Dan. Ch. Pl. & Pr. (6th Am. ed.) *1001, it is stated:

“Decrees, in general, consist of four parts: (1) the date and title; (2) the recitals; (3) the declaratory part, if any; and (4) the ordering or mandatory part.”

And (at p. *1002) :

“2. Formerly, decrees contained recitals of the pleadings in the case; * * * But this is no longer the practice, and, unless the court otherwise specifically directs, no recitals ought to be introduced m any decree or order of the court; but the pleadings * * * on which such decree or order is founded, should be merely referred to.”

And (at p. *1004) :

“4. The ordering or mandatory part of the decree contains the specific directions of the court upon the matter before it.”

Our statute provides that a decree in chancery shall not contain any recital of the bill, answer or other pleading. Chancery act, Comp. Stat. p. 425 § 39. The evidence is never set out, although facts proved are generally, and always properly, stated.

The court of chancery is a high court of general jurisdiction over the subject-matters which fall within its cognizance. Tn fact, it was anciently called the “High Court of Chancery.” Like the common law courts of general jurisdiction its final judgments, namely, its decrees, do not, to be valid, have to show upon their face that all jurisdictional requirements have, been complied with, as is the case with inferior tribunals of circumscribed and limited jurisdiction (except where statutes permit the omission of such recitals in certain summary convictions).

In a decree in chancery there need not be in the ordering or mandatory part an adjudication of the existence of facts warranting the making of such decree, although they may be stated in the recitals preceding the decretal paragraph, or may, for that matter, be omitted entirely.

I hold that a decree entitled in the court and cause may properly proceed to adjudicate the rights of the parties and award appropriate relief without the recital of pleadings or evidence, and such decree will be valid if the record in the case demonstrates that the cause is cognizable by the court, and the decree is within the issue raised by the pleadings. In other words, the final decree of the court of chancery is not required to recite facts establishing jurisdiction; yet it is quite usual and proper, and the better practice, to succinctly set out the findings of the court in the recital part of the decree, and, where that has been omitted to be done, either party may, if he chooses, have a decree, already entered without such recitals, amended so as to include them, provided the chancellor in his discretion is willing to order such amendment to be made.

A final decree may be amended' even after enrollment by inserting a clause which was inadvertently omitted in drawing it and which is necessary to effect the remedy of the successful party. Dorsheimer v. Rorback, 24 N. J. Eq. 33. In that case Chancellor Runyon said (at p. 37), quoting from a New York case:

“In Clark v. Hall, 7 Paige 384, the court says: ‘A decree cannot be varied in substance, on petition, without a rehearing. But it may be corrected or amended, on motion or petition, as to mere clerical errors, or by the insertion of any provision or direction which would have been inserted as matter of course, if asked for at the hearing as a necessary and proper clause to carry into effect the decision of the court.' "

To the same effect is Jarman v. Wiswall, 24 N. J. Eq. 68.

The amendment here asked for is the insertion of language which would have been incorporated in the decree at the time it was signed if requested by the complainants. It was apparently omitted by inadvertence of the draftsman.

But the important question here involved, is, whether or not, now that an appeal has been taken, this court can amend its decree. In 2 Cyc. (at p. 976), the rule is stated as follows:

“A court of record has the inherent power to correct its own record by an order nunc pro tunc, even after an appeal — for, while it loses jurisdiction of the case, it does not of its record — as where, through inadvertence, some matter has been omitted from the record, or some untrue statement inserted, or where the judgement entered contains misrecitals. The power of correction is confined, however, to showing correctly the history of the proceedings before the appeal, and the lower court has no jurisdiction, pending an appeal, to interfere with the rights of parties under a judgment.”

This is equally applicable to the court of chancery and its decrees, except that by appeal the court of chancery does not lose jurisdiction of an appealed case in toto, but continues to have a limited control of it for certain purposes. See Ashby v. Yetter and Robinson v. Robinson, infra.

That an appeal from this court to the court of errors and appeals, while it removes the cause and the potential record, does not actually remove the physical record I think is quite apparent. That is, the papers constituting the record remain in this court, whose jurisdiction over the record, pending appeal, is ousted only to the extent of preventing the decree in the court of chancery from destroying or impairing the subject of the appeal or being in any degree used for that purpose. Pennsylvania Railroad Co. v. National Docks Railway Co., 54 N. J. Eq. 648 (Court of Errors and Appeals, 1906). The orders made by the court of errors and appeals in the unreported cases of Lawton v. Beddell and Gorman v. Hinkle, cited in Ashby v. Yetter, 78 N. J. Eq. 173 (at pp. 184, 185), would, I take it, never have been made had that court considered that an appeal removed the record as well as the cause, for, in such case, there would have remained nothing in the court below upon which proceedings could there be had pending appeal.

The power of the court of chancery to take appropriate proceedings in a cause, pending an appeal, is recognized by the court of errors and appeals in the late ease of Robinson v. Robinson, 92 Atl. Rep. 94, wherein it was held that, pending an appeal, alimony pendente lite might be awarded in that court, or the parties remitted to the court of chancery to make application there.

Rule 22 of the court of errors and appeals, at first blush, might induce the belief that the actual physical records of the court of chancery were removed into the court of errors and appeals, after an appeal perfected by depositing the sum necessary for securing costs; but, upon close inspection, it will, I think, be found that such is not the case. The rule reads:

“Whenever a deposit shall be made as aforesaid, with the clerk in chancery, he shall, if required, with ail convenient speed, cause copies of the several orders and the decree in the cause, to be made at the expense of the appellant (who shall be liable for the same in the first instance) and deliver the same, with all the pleadings, depositions, exhibits and papers which may have been filed in his office relating to the cause, to the clerk of this court; and the said deposit shall be subject, prior to any other lien, to the fees of the clerk in chancery for the said copies.”

It was while this rule existed that the orders were made in our appellate court for the enforcement of the decree in chancery in Lawton v. Beddell and Gorman v. Hinkle, pending appeal. It was in existence also during the time when innumerable orders and decrees have been enforced in chancery pending an appeal.

It will be observed that the rule does not require that the orders and decrees' in a cause, in which an appeal has been taken, shall be sent up with “all the pleadings, depositions, exhibits,” unless the same is comprehended in the further description “and papers” which may have been filed. Tinder the caption “papers” are, of course, included writs, notices, stipulations, &e. It is broad enough also to include orders and decrees, but, it is impossible to believe that the court-by its rule would provide that orders and decrees should be sent up with the other papers when provision is made that copies of them shall be delivered with the pleadings, &c., and no specific mention is made of them as is of “pleadings, depositions, exhibits.” What is meant by the clerk in chancery causing copies of orders and decrees to be made and delivered with the pleadings, &c., doubtless is, that if such copies are not sent up, the transcript on appeal is not complete and the appeal not perfected.

But, after all, whatever its intent and meaning, this rule is more honored in the breach than the observance. In fact, so far as I am aware, it is never complied with. It is a dead letter. The well known and universal practice on all appeals is neither to send up any original papers nor even copies from the chancery office. They have not been sent up in this case, nor will they be unless the court of errors and appeals should order it done. This rule (22) was adopted before the printing of the record on appeal became by rule the established practice, and was, I think, adopted at the time when the court of chancery and chancery office were not in the state house where the court of errors and appeals sat, but in the chancery building which formerly stood at the corner of State and Chancery streets, two blocks away. I understand that when appeals were' heard in the days before printed records were distributed to the judges, the original papers were carried into court and read by counsel and examined by the judges. It may well be that the rule (33) was adopted to insure the' presence of the papers before the court of appeals at the time of hearing. Whatever the reason for its origin it has, as I said, fallen into entire disuse.

If the physical record were removed out of the court of chancery and sent into the court of errors and appeals, then, in many cases, where some injunctive or other affirmative relief might be necessary to protect and preserve tire subject of the appeal pending proceedings in the court above, such relief could not be had, for undoubtedly the court of errors and appeals, being exclusively a court of appellate jurisdiction, could not put in motion the necessary proceedings springing out of original jurisdiction, for want of the proper machinery. New Jersey Franklinite Co. v. Ames, 12 N. J. Eq. 507; Black v. Delaware and Raritan Canal Co., 24 N. J. Eq. 455, 477.

The supreme court of the United States (In re Wight, 134 U. S. 136), held that a court may make nunc pro tunc entries to supply omissions in the record of what was done at the time of the proceedings, citing several cases, among them Bilansky v. State, 3 Minn. 427; referring to which Mr. Justice Miller, speaking for the United States supreme court (at p. 144), said:

“In the Minnesota Case, the plaintiff in error had been convicted of the crime of murder, and after trial and verdict, and after the case had been carried to the supreme court of the state, the record of the proceedings on the trial was amended so as to show affirmatively that each juror was sworn as prescribed by law; that they were put in charge of the officer to keep them as prescribed by law; and that they were polled at the request of the defendant on their coming in with their verdict; matters which, it seems, had been omitted in the record of the judgment. The supreme court in that case, as we think, stated with force and precision the true rule on this'subject. They said: ‘While we should go as far as any court in reprobating a rule to place the proceedings of a court almost entirely at the mercy of the subordinate officials thereof, we should be scrupulously careful in adopting any rule which would tend to destroy the sanctity or lessen the verity of the records. And while we admit the power to amend a record after the term has passed in which the record was made up, we deprecate the exercise of the power in any case where there was the least room for doubt about the facts upon which the amendment was sought to be made * * * But when the facts stand undisputed, and the objection is based upon the technical point alone that the term is passed at which the record was made up, it would be doing violence to the spirit which pervades the administration of justice in the present age to sustain it. It is our opinion that this power of necessity exists in the district court, and that its exercise must in a great measure be governed by the facts of each case.’ ”

In Apgar’s Administrators v. Hiler, 24 N. J. Law 808, the court of errors and appeals allowed the record to be amended in the court below pending proceedings on error. Mr. Justice Green speaking for the court, remarked (at p. 809) :

“The error in the judgment is an error not of form merely, but of substance, and if not amended, fatal to the validity of the judgment. It prejudices the rights of the plaintiffs in error, and renders them liable in a manner and to an extent, to which by law they are not amenable. Rev. Stat. p. 351 § 6; Executors of Montgomery v. Reynolds, 14 N. J. Law 283. Nor is it a mere clerical error in the mode of making up the record which this court can, as a matter of course, amend. The amendment must be made by the court below, upon the record there remaining, and be from thence duly returned to this court. The motion is to amend as well the verdict as 'the judgment. There is nothing in this court to amend by. The record remains in the court below. It is the practice after error brought, for the court below to amend the record in matters of substance, and to certify the record so amended to the court above.” See, also, Mumma v. Easton and Amboy Railroad Co., 73 N. J. Law 653.

The cases In re Wight and Apgar's Administrators v. Hiler are cases in courts of law, where amendments are made in virtue of statutory enactments passed to relieve against the rigors of technical practice; but, surely, the court of chancery having broad inherent powers in that behalf, will, by analogy to the statute of amendments and jeofails and the Practice act, make equally liberal, and, when necessary, more liberal, amendments. And this because its power to amend is not restricted by the terms of any statute, but is bounded only by the chancellor’s discretion in the furtherance of justice. The Chancery act (Comp. Stat. p. 438 § 77) merely provides that all amendments shall be made'with or without costs and on such equitable terms as the court shall direct.

In Foster v. Knowles, 42 N. J. Eq. 226, Vice-Chancellor Bird (at p. 230), held:

“It it said that the complainant does not show, in her bill, that the conveyance to Mrs. Crosley at all ‘hindered, delayed or embarrassed her,’ &c. It is true there is no such allegation in the bill. It is also true that while the answer declares the fact, it does not claim any benefit therefrom. Therefore, since the cause has proceeded to final hearing, such defect may be supplied by apt amendments to the bill, in case the complainant prevails on the main question.”

That a decree, as well as pleadings, may be amended, is entirely settled. The court of errors and appeals in Horner v. Corning, 28 N. J. Eq. 254, held that for correcting an error in a decree, application should be made to the chancellor to so amend it as to protect the rights of a party.

Clerical errors, errors of form or mistakes in the drafting of decrees, as distinguished from judicial errors, may be corrected. 16 Cyc. 504, citing, among other cases, Day v. Argus Printing Co., 47 N. J. Eq. 594. In that case the court of errors and appeals affirmed an order of the chancellor amending the date of a decree.

The views above expressed lead to the conclusion that a decree in chancery may be amended by the insertion of a clause inadvertently omitted and which would have been included as matter of course if asked for at the hearing; and this, pending an appeal, provided its effect would not change the status or interfere with the rights of the parties under the decree.

The amendments asked for in the recital part of the decree will be granted, but without costs.


text:
    In the matter of Joseph B. Breidt and Jacob Lubetkin, solicitors of the court of chancery of New Jersey.
    [Decided April 29th, 1915.]
    1. Proceedings to discipline a solicitor are civil and not criminal; and the purpose is not to punish the respondent but to purify the bar and protect the court and the public from the fraud and imposition of reckless or unscrupulous lawyers.
    2. Conviction of crime of, or evidence that one has been committed by, or such intentional fraud upon the court or a client as shows evidence of moral turpitude in, a solicitor, will justify, but does not necessarily require, permanent disbarment in every case. For less offences a solicitor will be properly punished by temporary suspension from practice.
    3. As the supposititious affidavits imposed upon the court by the respondents were true in their statement of facts, and there being no attempted fraud upon clients, and no harm being done by the use made of the papers, the protection of the court and public does not require the permanent disbarment of the perpetrators of the fraud.
    4. The respondents, Lubetkin, with reckless zeal for clients’ interests, and Breidt, in overweening friendship for Lubetkin, lent themselves to the perpetration of a fraud, harmless in its consequences. This view of the situation — the mildest view possible — saves them from the severest penalty, and Lubetkin will be suspended from practicing for three years and Breidt for two years.
    5. The youth and inexperience of solicitors do not extenuate acts inconsistent with common honesty; and the imposition of supposititious affidavits upon a court of justice falls within that category.
    On. order to show canse why the respondents should not be disbarred or otherwise disciplined and punished.

      Mr. Nelson B. Gaskill, for the prosecution.

      Mr. Frank E. Bradner, for the respondent Lubetkin.

      Messrs. Howe & Davis, for the respondent Breidt:
   Walker, Chancellor.

Jacob Lubetkin and Joseph B. Breidt, solicitors of this court, were ordered to show cause why they should not be adjudged guilty of malpractice, and why, on account of such malpractice, they should not be disbarred or otherwise disciplined and punished. They each filed an affidavit, admitting the facts recited in the order, on which the charge of misconduct is based, disclaiming any intentional wrong-doing and apologizing to the court. They appeared by counsel and were heard in open court.

The facts are these: The respondent Lubetkin presented a bill of complaint to Vice-Chancellor Howell alleging insolvency of a corporation and praying for the appointment of a receiver. Annexed to the bill, and supporting the facts therein alleged, were three affidavits purporting to have been sworn to before the respondent Joseph B. Breidt, as an attorney-at-law of this state. Vice-Chancellor Howell granted an order to .show cause why a receiver should not be appointed, with an ad interim stay, returnable at Trenton, and on the return day a receiver was appointed by Vice-Chancellor Backes.

The principal affidavit annexed to the bill, made by William L. Greenbaum, was actually sworn to before Breidt. A corroborating affidavit bearing the signature of Greenbaum, and seven other supposed affiants, was 'certified by Breidt as having been sworn to before him. A third affidavit, signed by one of these same affiants, is similarly certified.' None of these affiants, except Greenbaum, appeared before Breidt and made oath as attested by the jurat. This dereliction was discovered in this wise: On the return of the order to show cause counsel for the defendant company appeared before Vice-Chancellor Backes and presented inter alia an affidavit made by one of the supposed affiants to the bill, in which he deposed that he did not make the affidavit; that Breidt was not present at the signing of the paper; that he did not see Breidt either at, before or after the paper was signed, and was certain that Breidt did not take the affidavits of two of the other supposed affiants. Vice-Chancellor Backes reports to me that Lubetkin, called on by him for an explanation, admitted that Breidt had not sworn all of the supposed affiants; that he seemed to be entirely unembarrassed and absolutely unimpressed with the notion that he had done wrong, stating that he understood other lawyers in Newark had done, or were doing, the same thing, obviously intending to excuse himself upon the ground that he had merely followed an established practice — a practice unheard of and quite astonishing to the vice-chancellor. It is significant that Lubetkin, after taking counsel, did not reiterate this indefensible explanation of his conduct when called on to respond to the pending rule.

Breidt’s explanation is, that Lubetkin, who was an office associate, but not professionally related, came to him with Greenbaum and asked that he take the latter’s affidavit, and also that he subscribe the jurats to the other affidavits, stating that he (Lubetkin) had seen the other persons sign and had sworn them, and that, being the solicitor in the matter, he could not sign the jurats, and that the matters contained in the affidavits to his own knowledge were true, and to oblige Lubetkin, and without giving the matter any further thought, he took the papers, administered the oath to Greenbaum, and then signed his name to the jurats, and handed the papers back to Lubetkin. Lubetkinadmits that he did not see three of the affiants, but as to the others he says he took their affidavits, and later discovering that as solicitor in the cause it would be irregular to subscribe the jurats, asked Breidt to do so, stating to him that he had actually seen four of the affiants sign and that he took their affidavits, and that Greenbaum told Breidt that he (Greenbaum) had seen the other three affiants sign, and had explained the contents of the bill of complaint and affidavits to them, and had told them the nature of the paper they were signing, and that thereupon Breidt swore Greenbaum and affixed his signature to the three jurats.

The discrepancy between Breidt’s and Lubetkin’s statements, as to whether in fact Lubetkin had told Breidt that he had sworn all of the affiants, if resolved in Breidt’s favor, simply aggravates the situation as between them, but in nowise ameliorates the culpability of either.

Lubetkin further states that it did not occur to him that there was any illegality or impropriety in what was being clone, and he thought that all the parties haying assented to the affidavit, and having actually heard four of them swear to it, and Greenbaum being willing to make an affidavit that the other three had signed it and assented to it, the proceeding was all right. He adds that he has had no experience in chancery proceedings, nor in the taking of affidavits; that he never read the statute in relation to oaths, had made no stud}' of the subject, and he did not think that any of the questions in the bar examination covered the subject at all. This excuse is too attenuated for serious consideration.

It is difficult to treat seriously the suggestion that either of these respondents may be excused upon the ground that he was not instructed by bar examination questions covering the subject of the administration of an oath. Would they have this question asked: “May an oath be administered to a person not present, and, if so, how?” Or this one: “May an officer, authorized to administer oaths, certify over his signature that a person purporting to make an affidavit, swore to and subscribed the same before him, when, in fact, he did neither, and, if so, why?” These suppositive questions have only to be stated to see the absurdity of any questions at a bar examination of matters which palpably speak for themselves.

Each of these respondents knew — must have known — from the very language of the jurat, that it was required that the affiant appear in person and be sworn before the officer administering the oath; else how could he have administered it? Breidt must have known that his participation in this matter tended to effect, and Lubetkin must have realized that in what he was doing he was perpetrating a palpable fraud upon the court. Both are guilty, the degrees of their guilt varying slightly. Breidt permitted himself to be imposed upon by his friend, as he says, to convenience him. Lubetkin’s plea, that his sense of propriety and of duty, as a solicitor of this court, was not sufficiently keen to enable him to appreciate the wrongfulness of his act, is difficult to believe.

The defence of these young men, it will be seen, is confession and avoidance; the avoidance, however, not constituting a defence. These respondents were taught, and may remember, that it is a well-settled and fundamental principle that ignorance of the law excuses no man; and yet they urge, and urge only, an alleged ignorance of the law and practice relating to the administration of oaths and the certification thereof by way of a jurat.

The Oaths act (Comp. Stat. p. 3773 § 30) provides: “All oaths, affirmations and affidavits * * * may be made and taken by and before any one of the following officers of this state, viz.,” &c. Section 30a, an amendment of 1905, provides that such oaths, affirmations and affidavits “may be made and taken by and before any attomey-at-law.” Lubetkin, as already stated, says that he never read the Oaths act, and did not think that any of the questions in the bar examination covered the subject. Probably, it has never occurred to the bar examiners to ask any question concerning the administration of an oath and its certification, because that which has to be done in that regard is so plain and easily understood that many officers, who may not loe lawyers, such as mayors, recorders, aldermen, city clerks, commissioners of deeds and notaries public, who, doubtless, never read the statute of oaths, are empowered to administer and certify oaths and affirmations. The language of a jurat is alone sufficient to convey to any intelligent mind exactly what has to be done in the way of administering and certifying an oath. It says “sworn to and subscribed before me,” &c. That means one, and only one, thing, namely, that the person making the oath was before — that is, was in the presence of the official who administered it. I do not say that an affiant may not sign his affidavit out of the presence of the officer taking it, and, before swearing to it, acknowledge the signature to be his. But there is no way in the law whereby an officer authorized to take an oath may certify that he has done such an act when in fact he has not, and in the nature of things there can be no such a proceeding as the absent administration of an oath or the administration of an absent oath. The thing is perfectly incongruous and impossible. The administration of an oath means something or nothing. It cannot be distorted; there is no room for construction, and for a violation of the law in this regard there can be no excuse.

In Bouv. L. Dic. (Rawle’s Rev.) 111, an affidavit is defined to be “a statement or declaration reduced to writing, and sworn or affirmed to before some officer who has authority to administer an oath or affirmation.”

Let us see, now, what an oath is, the thing which vitalized an affidavit. Blackstone, speaking of the foundation of judicial oaths, says (4 Bl. Com. 43) they “call God to witness the truth of those facts, which perhaps may be only known to him and the party attesting.”

The essence of an oath is thus stated in 29 Cyc. 1298:

“The essential requisite of an oath at common law is belief by the witness or affiant in the existence of a God, who will punish him if he swears falsely, and an appeal to such God as the rewarder of truth and the avenger of falsehood. But the belief need not be, inevitably, that of the religion of the Bible, and the oath of any person who holds this essential belief, whatever his sect or creed, is sufficient.”

Now, the solemnity of an oath is known of all men; as children we learn of it. And all know, lawyers and laymen alike, that papers purporting to be affidavits — that is to say, written evidence that oaths have been taken, when in point of fact no oaths have been administered, are spurious and supposititious. Breidt and Lubetkin knew this. They knew it upon the testimony of their own senses, entirely dissociated from any legal knowledge or training. In imposing these false papers upon the court the}' did an act from which sensitive and conscientious men would have recoiled.

It is not an answer to say that the statements contained in these supposititious affidavits are true. The power of the court cannot be invoked by the mere off-hand statements of individuals. It acts only upon oaths and affirmations, for the falsity of which in any material respect the deponent may be punished upon indictment and conviction for perjury. And that leads to the observation that if perjury were assigned upon these affidavits, certainly no conviction could be had upon three of them, because the facts asserted in the papers were not sworn to at' all; and this because lawyers — officers of the court — had put the matter in such an outrageous posture.

These men are young lawyers, and make much of that fact, Breidt having been admitted as an attorney and solicitor in June, 1912, and Lubetkin in February, 1914. But this is a disingenuous excuse. The courts have dealt with and scouted it repeatedly in this very class of eases.

In People v. Macauley, 230 Ill. 208, it was held in a disbarment case that youth and inexperience do not extenuate acts inconsistent with common honesty, and the youth and inexperience of an attorney did not extenuate the offence of a fraudulent conspiracy to extort money which is inconsistent with the common honesty which should be the attribute of every attorney licensed' to practice law.

In People v. Waldron, 28 Colo. 249, the court said that the respondent by way of extenuation or modification pleaded youth and inexperience, having been admitted to the bar onfy a few weeks, and was twenty-three years of age; further, that for some purposes such considerations might have some weight, but not in disbarment proceedings; further, that a lawyer should be actu-' ated by the most delicate sense of honor, and in his dealings with his clients his professional obligations should be scrupulously observed; that even an inexperienced person, at the time of admission as a member of the legal profession, ought to know that it is wrong to appropriate to his own use money belonging to others.

In the Matter of Shapiro, 144 N. Y. App. Div. 1, an attorney-at-law was disbarred for making an agreement with a prospective witness to pay him a material proportion of the recovery, if he would testify in a certain action. It appears (at p. 8) that the respondent (Shapiro) set up inexperience, among other things, as a defence. The court does not appear to have even noticed the claim of inexperience, and disbarred the attorney.

The sanctity of an oath may perhaps best be understood when we consider the detestation in which a corrupt — that is to say, false, oath is regarded by the law. Blackstone says (4 Bl. Com. 137) that perjury is defined by Sir Edward Coke

“to be a crime committed when a lawful oath is administered, in some judicial proceeding, to a person who swears ivilfully, absolutely, and falsely, in a matter material to the issue or point in question.”

And he adds:

“The law takes no notice of any perjury but such as is committed in some court of justice, having power to administer an oath, or before some magistrate or proper officer, invested with a similar authority, in some proceeding relative to a civil suit or a criminal prosecution.”

He then reviews the different punishments which, at various times were meted out to perjurors by the English law. Our statute denounces as guilty of a high misdemeanor any person who shall willfully and corruptly commit perjury in 'any action, plea, suit, &c., depending or which may depend in any of our courts, &e., or in any deposition or examination taken or to be taken pursuant to the laws of this state before any public officer legally authorized to take the same (Comp. Stat. p. 1748 § 18), and makes the maximum punishment a fine not exceeding two thousand dollars and imprisonment not exceeding seven years, or both. Comp. Stat. p. 1812 § 217.

Doubtless, Breidt and Lubetkin know what perjury means, and that it is punishable as a high misdemeanor. The conclusion is irresistible that they knew when these supposititious affidavits were imposed upon the court that those three persons who were purported to have sworn to them before Breidt, but had only signed the paper and had not sworn at all, could not have been convicted of perjury even if the statements therein contained were false.

The rule governing disbarments, laid down by the supreme court (In re Cahill, 66 N. J. Law 527), is this:

“1. To justify the disbarment of an attorney, one of three things should be established: 1. Conviction of crime. 2. Evidence which, in the judgment of the court, shows that a crime has been committed and that the facts proven would justify a conviction thereof. 3. Such intentional fraud upon the court or a client as shows evidence of moral turpitude.

"2. For less offences, such temporary suspension as the court may deem proper punishment will be imposed.”

Upon this whole matter I am clearly of opinion that the respondents are guilty of intentional fraud upon the court. Breidt, as well as Lubetkin, for Breidt knew the purpose for which they were to be used. True, they disclaim intentional wrong-doing, but what they did was done with knowledge and deliberation, and must, therefore, despite their denials, be held to have been done intentionally. Lubetkin knew that only affidavits would be considered by the court, and he therefore drew affidavits in form. He went further and procured the signatures of the named affiants. It is impossible to believe that he, knowing he could only prove a case by affidavits, at the same time thought they need not be sworn to. Breidt deliberately certified to the falsehood, and he knew that he did so. They imposed upon a court of justice papers which could properly have been used only in a moot court. I repeat, they are guilty of fraud upon the court.

Proceedings to discipline a solicitor are civil and not criminal; and their purpose is not to punish the respondent but to purify the bar and protect the court and the public from the fraud and imposition of- reckless and unscrupulous lawyers. And yet, after all, I know of no better term in which to characterize the plight of a disciplined solicitor, one disbarred or suspended, than as “punishment.” That is the term used by our supreme court in the Cahill Case, and it amounts to punishment by whatever name called. It involves disgrace to the solicitor and takes from him a privilege, the enjoyment of which brings him business and the means of livelihood.

Now, it will be observed that in the Cahill Case the supreme court said that conviction of a crime, or evidence that an attorney had committed one, or such intentional fraud upon the court or a client as shows evidence of moral turpitude, will justify disbarment. It does not say that disbarment must needs follow the establishment of either one of the three. This, of course, is so, as the extent of the punishment always rests in the sound discretion of the court. So that, even if the respondents to this rule are guilty of intentional fraud upon the court, they need not necessarily be disbarred. For less offences than those mentioned, it will be.remembered, the supreme court said temporary suspension would be “proper punishment.”

The offence of these young men is, in a sense, a novel one'— that is, there is nothing like it to be found in the books, at least so far as I have been able in a very careful search to discover.

The supposititious affidavits were, in point of fact, true, and a receiver was appointed for the defendant company. Here was no case of attempted fraud upon clients, that most reprehensible and detestable practice, resorted to by, I am happy to say, but few lawyers. Nor was any fraud worked upon the court in the sense that affidavits false in fact were imposed upon it. Lubetkin, with reckless zeal for clients’ interests, and Breidt, in overweening friendship for Lubetkin, lent themselves to the perpetration of a fraud, harmless, however, in its consequences. This view of the situation is the-one and only thing that saves them from the severest penalty.

In the Matter of Robinson, 140 N. Y. App. Div. 329, Ingraham, P. J., said (at p. 337) :

“We also take into consideration the fact that the respondent’s conduct, grave though it was, does not appear to have been induced by any sordid motives of personal gain, but to have resulted from excessive and ill-judged zeal to protect his clients from an impending catastrophe. This does not excuse, but in some degree serves to palliate his offence. In consideration of these circumstances, the court has concluded that it is not required to proceed to the extreme penalty of disbarment, but that the respondent should be suspended from practice,” &c.

The matter of discipline in this case was brought by me before a conference of all the judges of the court of chancery, and, after -most careful consideration, it was our unanimous opinion that the administration of justice and the protection of the court and clients does not require the permanent expulsion of these respondents from the chancery bar, but that some and severe discipline is necessary to warn such members of the profession as may in like case hereafter offend. It is considered by us, and by our unanimous judgment, the punishment to be imposed in this case will be three years suspension for Lubetkin and two years for Breidt. If, in the future, any other solicitors should be guilty of such like offence, they need not expect such lenient treatment.

An order will be entered that Jacob Lubetkin be prohibited from practicing as a solicitor in chancery for a period of three years from the date thereof, and that Joseph B. Breidt be likewise suspended for a period of two years, with provision that if the order be violated the offender shall be permanently debarred from practicing as a solicitor.


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    In the matter of Addison P. Rosenkrans, a solicitor of the court of chancery of New Jersey.
    [Decided April 30th, 1915.]
    1. Mere delay in prosecuting a client’s cause, unless, perhaps, it is so long continued as to be evidence of fraudulent conduct, does not afford the basis for disciplining a solicitor, beyond reprimand and an admonition to proceed; but when a solicitor receives a fee, especially when it is all he asks, upon a promise speedily to prosecute, and then does nothing whatever to that end — does not even start — but, on the contrary, when asked by his client for information as to the status of the cause, he falsely informs her that it is pending and is being prosecuted with all convenient speed — in whatever words the idea is conveyed — he is guilty of fraud upon his client, and for this he should be disciplined.
    2. A solicitor who counsels and procures a client to make an affidavit “that she is the petitioner named in the foregoing petition,” and, also, “that the matters and things therein set forth are true, to the best of her knowledge and belief,” when, in fact, there is no petition in existence, with intent to annex the affidavit to a petition thereafter to be drawn and filed (which would have aggravated the matter, involving uttering a false affidavit and imposing the same upon the court), is guilty of professional misconduct amounting to malpractice.
    3. Professional malpractice is of three kinds — ignorant, negligent and willful. While disciplinary proceedings may not be taken against a solicitor for ignorant malpractice, for negligent malpractice he can be censured by the court, and in gross cases disciplined; and, for willful malpractice, he can be disciplined even to the extent of disbarment.
    4. The offence of the respondent is of a dual character (a.) obtaining money from a client upon the promise of prompt professional service, without rendering any service, accompanied by false representations that her cause was being prosecuted with all convenient speed, extending over a period of seven months, and (6) counseling and procuring her to make an affidavit false in fact in the sense that the alleged fact did not exist hut not false in that it was contrary to existing facts, with intent to make use of the affidavit. Both offences were deliberately, that is to say, willfully committed. These offences, singly or together, amount to malpractice in a solicitor, and for both of them suspension from practice for a period of two years is a proper penalty under all the facts and circumstances of the case at bar.
    5. The violation of a promissory obligation followed up with the false assertion, oft repeated, that the promise was being performed, is malpractice, in a solicitor who has received a fee from a client for professional service.

      On order to show cause why the respondent should not be disbarred or otherwise disciplined and punished.

      Mr. Nelson B. Gaskill, for the prosecution.

      Mr. Clifford L. Newman, for the respondent.
   Walker, Chancellor.

Upon complaint of Mrs. Stella Van Dien accusing Addison P. Rosenkrans, a solicitor, with unprofessional conduct in not prosecuting, while he represented to her that he had commenced and was prosecuting in the court of chancery a proceeding to obtain for her maintenance for her child after a decree of divorce already made in her favor against her husband, which had been obtained by another solicitor, an order to show cause was made which recited substantially as follows: That he, Rosenkrans, was charged with malpractice as a solicitor of the court of chancery, in that he, being such solicitor, was consulted by Mrs. Van Dien for the purpose of obtaining his advice with respect to her proposed action for support of her child, who related to him the circumstances in which she found herself after the decree of divorce, as being without other means for her support than the income from her own labor, which was insufficient to maintain herself and her child, because of which it was necessary for her to take some steps to compel her former husband, Arthur G. Van Dien, to contribute to the support of the child, and to pay Mrs. Van Dien such sums in the nature of alimony as the court might award; whereupon he, Rosenkrans, agreed to undertake the cause for Mrs. Van Dien and received a retaining fee in the sum of $5, and thereafter failing in an attempt to obtain or enforce a voluntary agreement for alimony and support, he, Rosenkrans, requested Mrs. Van Dien to call at his office; that she did so on or about the 10th day of February, 1914, and was informed by him of the impossibility of obtaining an agreement for support and alimony; that it would be necessary to institute proceedings for that purpose, and that if she, Mrs. Van Dien, would give to him, Rosenkrans, the sum of $25 he would start the proceedings that afternoon and push the matter with all possible speed, and tliat the cause would come up in Paterson in about two weeks time: that he would conduct the proceedings as cheaply as possible, do all he could in her behalf, and urged upon her that he would do all that was right in the premises; and Mrs. Van Dien not then being in possession of the sum of $25 required by Rosenkrans as preliminary to the institution' of proceedings, was obliged to borrow and become indebted for that amount, and did so, and on the 17th day of February, 1914, paid Rosenkrans the sum and obtained therefor a receipt signed by him acknowledging the payment thereof for his services in procuring an order for alimony and support for her child, under the final decree in the action for divorce of Stella Van Dien against Arthur G. Van Dien already concluded; and that Rosenkrans, having received the $25, thereafter neglected and failed to institute any proceeding in behalf of Mrs. Van Dien against her former husband for alimony and support, filed no papers or proceedings in the court of chancery, and wholly neglected and failed to prosecute the cause which she had placed in his hands, and for which she had paid him the fee requested, and thereafter neglected and refused to inform her accurately and truthfully concerning the status of the matter and on several occasions made appointments with her, but postponed and failed to keep the same, or to advise her of the exact state of the proceedings; that in March, 1914, Rosenkrans wrote Mrs. Van Dien that he would be ready very shortly, but that matters of more immediate and pressing importance had delayed her cause; that, subsequently, Charles "W. Vreeland, making inquiry of Rosenkrans, at the solicitation of Mrs. Van Dien, received a post card written and signed by Rosenkrans, dated the 10th day of April, 1914, stating that the taking of proofs in the Van Dien matter would be postponed until Saturday, the 18th, and on the 17th Rosenkrans again wrote Vreeland stating that as soon as he had the testimony in another matter he would fix a day to take proofs in the Van Dien ease; that he, Rosenkrans, subsequently stated to Forrest Mackey, who visited him on behalf of Mrs. Van Dien, that the hearing in her cause would be held on Saturday, July 18th, 1914, but no hearing was in fact held at any time, nor was any petition or other proceeding filed by Rosenkrans in the cause of Mrs. Van Dien; and that Rosenkrans was not, either at the time of the writing of the post cards to Vreeland or the statements to Mackey, in a position to take proofs or otherwise forward the cause as indicated by the post cards, or the statements to Mackey; 'and that Rosenkrans, although repeatedly urged by Mrs. Van Dien to proceed with her case, or reeturn to her the money which she paid to him as her solicitor in that behalf, neither instituted nor forwarded her cause, and had not returned to her the money so paid.

Nelson B. Gaskill, Esq., was assigned to prosecute the order to show cause, and the matter came on for hearing before me in his presence, and in the presence of the respondent himself, and of Clifford L. Newman, Esq., his counsel, Mrs. Van Dien, Forrest Mackey, John M. Weaver, Charles W. Vreeland and the respondent, Rosenkrans, were examined as witnesses. There was no dispute, at least, no material dispute, concerning the essential facts recited in the order to show cause and above set forth.

Mr. Rosenkrans, the solicitor, testifying in his own behalf, said that he was admitted to the bar of this state in June, 1907, and had practiced since that date; that Mrs. Van Dien’s object in calling upon him was to learn whether or not there was an agreement in writing signed by her former husband in which he bound himself to pay her $3 a week toward the support of their child (no provision for maintenance having been made in the decree which she had obtained), and to learn whether, notwithstanding there was a divorce, she might institute proceedings of some sort by which she could oblige her husband to continue to make payments towards her child’s support, her husband having paid $3 a week with more or less irregularity and being then in arrears; that he told her it was not too late to proceed in a supplemental way in her divorce ease; that if she would send him $25 he would undertake the matter for her, she paying him $5 then for his advice and to cover his inquiries as to whether a written agreement was in existence.

Mrs. Van Dien paid a second visit to Rosenkrans and look him her decree nisi and final decree. Rosenkrans said that at this interview the affidavit was drawn and signed by Mrs. Van Dien. This was new matter — came as a surprise; the affidavit was called for by me and produced by Rosenkrans. It was sworn to as well as subscribed. It was offered in evidence and will be .adverted to later.

The interview between Mrs. Van Dien and Rosenkrans, which the affidavit was made, occurred on February 10th, 1914. Asked why, after February 10th, a petition was not filed or some proceeding taken, Rosenkrans said that he had intended to get it all ready for the late afternoon of that day, after the close of the register’s office, where he was making a search; that he intended getting an order of reference to some master in Paterson to take testimony on Mrs. Van Dien’s application on the supplemental petition; that he expected to move before me for an order of reference ex parte, and as, of course, instead of giving notice to the defendant. Such an order he could not have obtained.

It is strange that Rosenkrans should have thought that a defendant against whom a final decree had passed without an award of alimony or maintenance in it could afterwards be visited with an order or decree for alimony without an opportunity to be heard.

On February 17th $25, which Mrs. Van Dien was obliged to borrow to the knowledge of Rosenkrans, and which he says was a final payment of what he asked, was paid to him, and yet' up to the date of the order to show cause, September 16th, 1914, which was seven months afterwards, he had instituted no proceeding on his client’s behalf.

On April 3d, 1914, Rosenkrans visited Mrs. Van Dien’s home at Upper Macopin, New Jersey, being in that neighborhood to obtain witnesses in another cause, and, allusion being made to her matter, he said that he had not yet got ready to take care of it; that he had been very busy from the time he got the money until a certain homicide ease, in which he was counsel, was.disposed of, and liad been very busy since, and said that he would take care of her case and might be able and ready to start by Saturday, April 17th, and had it in mind to go down to Trenton with a verified petition and get an order of reference to some master in chancery in Paterson who would hear the matter. He appears not to have known that he could have applied to any vice-chancellor for an appropriate order to show canse upon the delinquent husband.

Vreeland and Mackey were interested in behalf of Mrs. Van Dien, and it was with them and not with her directly that Rosenkrans corresponded and talked about her matter.

On May 29th, 1914, Rosenkrans wrote Mackey as follows:

“In suggesting the 30th instant, in the Van Dien matter, I hit upon Decoration day, which neither Mr. Vreeland nor I then thought of as a holiday. We can take care of the matter almost any day next week; but on account of the sittings of the Circuit Court and the uncertainty as to the list of causes, I think that we had better fix upon next Saturday, when every one concerned will be free.
“If that date is satisfactory to your people, it will be satisfactory to me."

And on April 10th he wrote Vreeland as follows:

“We will postpone taking of proofs in the Van Dien matter till Saturday the 18th.
“Will explain occasion for postponement, when I see you.”

And on April 17th he again wrote Vreeland as follows:

“As soon as I have testimony in the Sisco case, I will fix a day to take proof in the Van Dien case. One trip will cover both cases, and require no other.”

Thus two or three dates were fixed for the taking of testimony, and, on the day before, word would be sent by Rosenkrans lhat the matter would go off and that another day would be set.

At last, in despair, Mrs. Van Dien, on July 21st^ 1914, wrote Rosenkrans as follows:

“As we see you are not going to attend to my buness [business] As you promised Mr. Mackey you would sure, have the hearing last Saturday, July 18, We have gave you long enought time. It has bin sence Jan. 6. Now I want my money. I will give you till Saturday, July 25, 1914, to return my money or I will send some one that will collect it for me.”

Rosenkrans did not answer this letter, but shortly thereafter saw Vreeland and told him that he had received it and said that as Mrs. Van Dien was dissatisfied he would ask him (Vreeland) to go to his (Rosenkrans’) office and get a check from him to return her the money, and that he (Vreeland) asked him (Rosenkrans) to wait, that he would see her and did not want to receive it for her. On the day following the service of the order to show cause upon Rosenkrans, Vreeland called at Ms office and was told by him that he (Vreeland) had advised him (Rosenkrans) badly, and he gave him a check for $25 to take to Mrs. Van Dien, which be (Vreeland) tendered to her and she declined to receive it. Mrs. Van Dien says she told Vreeland that she would not take the money until she saw her lawyer, a Mr. McDavitt, of New York, whom she had consulted, he (McDavitt) having told her not to accept it. On the hearing Rosenkrans offered to repay the $25 to Mrs. Van Dien, and I advised her to accept it, which, I understand, she afterwards did.

No petition for maintenance was ever drawn by Rosenkrans and no proceeding of any kind was instituted by him on Mrs. Van Dien’s behalf for the support of her child. The matter is at an end as between them, and their relation of solicitor and client has terminated.

As already stated, Rosenkrans testified that at the interview with Mrs. Van Dien, on February 10th, 1914, he had her make an affidavit, which was called for and offered in evidence. It reads as follows:

“State of New Jersey, ss.
County of Passaic,
“Stella M. Van Dien, being duly sworn according to law, on her oath says, that she is the petitioner named in the foregoing petition, and that the matters and things therein set forth are true, to the best of her knowledge and belief.
“Stella M. Van Dien.
“Sworn to and subscribed before me this tenth day of February, A. D. 1914.
“John H. Collier,
“Master in Chancery
of New Jersey.”

Here we have a case of a solicitor of this court counseling and procuring a client to make an affidavit “that she is the petitioner named in the foregoing petition,” when in fact there was no petition in existence, and, also, “that the matters and things therein set forth are true, to the best of her knowledge and belief.” It is hard to characterize this conduct of Rosenkrans’, or, rather, it is hard to refrain from reprobating it as it deserves to be. It is more than strange that Rosenkrans should procure Mrs. Van Dien to subscribe and swear to an affidavit which was untrue in point of fact. He says he intended to draw a petition and annex the affidavit to it. This would have aggravated the matter. If he had done so and had filed the petition he would have uttered and imposed upon the court a false affidavit. His conduct in this regard amounts to malpractice.

Without raising any question as to whether either Rosenkrans or Mrs. Van Dien were guilty of an infraction of the criminal law with reference to this affidavit, it is enough for the purpose of this inquiry to say that Rosenkrans counseled and procured his client to subscribe and swear to an affidavit false in fact— a thing intolerable.

The supreme court (In re McDermit, 63 N. J. Law 476) reprobates the breach of thai highest trust and confidence which obtains between counsel and client, under which a duty to observe the strictest integrity in his dealings with a client is enjoined, and disbarred a lawyer who had been unfaithful to the instructions of his clients, obtaining from them money for which he failed and neglected to render any adequate service and retained for his own use money which he had received from them for another purpose.

Measured by the standard here set up, Rosenkrans, it will be seen at a glance, has in a great degree abused the trust and confidence of his client, Mrs. Van Dien, and has not observed the strictest integrity in his dealings with her or justly regarded her interests. Nor has he rendered any adequate service to his client for the money which she paid him in the expectation of receiving-such service. In fact, he rendered her no service at all.

The supreme court (In re Simpson, 82 Atl. Rep. 507) disbarred an attorney and counselor who received and retained for himself the sum of $15 to commence divorce proceedings (he having actually prepared the petition and had his client swear to it), and, subsequently, obtained for his services and expenses in the proceedings various sums, during a period of eight months, aggregating $50, making $65 in all. The case was not pending (never having been commenced), but counsel, nevertheless, wrote his client in September, having been retained in March, six months before, that the case would be proceeded with, the court having reopened. Late in October he wrote that he would be in Trenton then soon and would advise when the case would be heard. As stated, although the petition was actually prepared and sworn to, it was never filed. The respondent to the rule was disbarred.

The supreme court (In re Bedle, 87 Atl. Rep. 100) disbarred an attorney who collected $150 for his client and converted it to his own use, and also obtained $160 for fees and costs to bring a divorce suit and prosecute it to a decree, but for more than six years did nothing but file a petition, although afforded every opportunity and often pressed to proceed.

The delay in the Bedle Case was six years, but the delay in the Simpson Case was only eight months. The delay in the matter at bar was seven months. And the amounts varied, being $160 in the Bedle Case, $65 in the Simpson Case and only $25 in the case under consideration. But there is no rule as to the amount of money that counsel obtains to prosecute a suit, nor as to the length of time that must elapse without such prosecution, before proceedings can be taken to discipline the solicitor for his faithfulness in that regard. Each case depends upon its own facts and circumstances.

Mere delay in prosecuting a client’s cause, unless, perhaps, it is so long continued as to be evidence of fraudulent conduct, does not afford the basis for disciplining a solicitor. Mere delay, without more, if brought to the attention of the court, would, of course, result in a reprimand and an admonition to the solicitor to proceed; but when a solicitor receives a fee, especially when it is all he asks, upon a promise to speedily prosecute a client’s cause, and then does nothing whatever to that end — does not even start — but, on the contrary, when asked by his client for information as to the status of the cause he falsely informs her that it is pending and is being prosecuted with all convenient speed — in whatever words the idea is conveyed — he is guilty of a fraud upon his client.

The supreme court (In re Cahill, 66 N. J. Law 527) laid down three rules which justify the disbarment of an attorney, the last one of which is “such intentional fraud upon the court or a client as shows evidence of moral turpitude,” remarking that “for less offences, such temporary suspension, as the court may deem proper punishment, will be imposed.”

The offence of respondent to this rule is of a dual character (1) obtaining money from a client upon the promise of prompt professional service without rendering any service, and (3) counseling and procuring her to make an affidavit false in fact in the sense that the alleged facts did not exist, but not false in that it was contrary to existing facts, with intent to make use of the affidavit. (See the remarks as to the sacredness and solemnity of an oath, in my opinion, in the matter of Breidt and Lubetkin filed simultaneously with this.) In the Cahill Case it was not held that disbarment must follow either one of the three offences which would justify it — only that such punishment might be inflicted.

Nor does Rosenkrans’s offence fall within that in the Simpson Case, where the respondent from time to time obtained money from his client under the false pretence that he was prosecuting for her a suit which he had never commenced. In the matter at bar the respondent certainly made false representations to his client as to what he was doing, but did not obtain money upon the strength of those particular promises. He had obtained Ms fee for work to be done and then failed to do the work he promised to do. To violate a promissory obligation and follow that up with the false assertion, oft repeated, that the promise was being performed, is, in a solicitor, malpractice. In Webster’s New Int. Dic. malpractice is defined to be:

“Any professional misconduct or any unreasonable lack of skill or fidelity in the performance of professional or fiduciary duties: wrongdoing. A question of professional malpractice or negligence is determined by what might be reasonably required under the circumstances of the case.”

With reference to physicians, malpractice, in 2 Bouv. L. Dic. (Rawle’s Rev.) 669, is defined as being either willful, negligent or ignorant. These degrees are equally attributable to the conduct of attorneys and solicitors. While discipliniary proceedings may not be taken against a solicitor for ignorant malpractice; for negligent malpractice he certainly can be censured by the court, and, in gross cases, disciplined; and, for willful malpractice, he can be disciplined even to the extent of disbarment.

This case, like that of Breidt and Lubetkin, was considered at a conference of all the judges of the court of chancery, and in their unanimous opinion suspension from practicing as a solicitor for the term of two years is the proper punishment to be meted out to Rosenkrans for his willful malpractice in the Van Dien matter, and such will be the order. If the order should be violated the respondent will be permanently debarred from practicing in the corirt of chancery.