text:
    The Mengel Company et al., appellants, v. D. Van Ness Pierson et al., respondents.
    [Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery, where Vice-Chancellor Fielder filed the following conclusions:
    “All the stockholders of the Keystone Churning Company, a corporation, were stockholders of Ammon & Person, another corporation, and the directors of the Keystone company were also directors of Ammon & Person. The Keystone company, being unable to continue its business with profit, called a meeting of its larger creditors and through its directors, all of whom were present at the meeting, requested the creditors to refrain from legal proceedings against the company and permit the directors of the Keystone company to liquidate its assets, the inducement offered being that Ammon & Person would pay a note of the Keystone company on which Ammon & Person were endorsers and would subordinate its claim thereon, together with other claims it held against the Keystone company, to the claims of other creditors. The further inducement offered the creditors at this meeting was that the directors of the Keystone company could dispose of the assets of the company to better advantage to the creditors than at a forced sale under bankruptcy or insolvency proceedings. The result of the meeting was that the Keystone company, its creditors, and the Ammon & Person corporation entered into a written agreement, dated April 5th, 1923, embodying the terms of the proposition submitted at the creditors' meeting, and whereby, among other things, the Keystone company agreed to proceed with all reasonable speed to liquidate its assets and to distribute the proceeds among its creditors (other than Ammon & Person), until such creditors were paid in full. Thereafter, the creditors left the directors of the Keystone company in undisturbed possession of its assets, and relied upon the directors to reduce such assets to cash. At the creditors’ meeting referred to a balance sheet of the company’s assets and liabilities was exhibited to the creditors, which showed that the assets exceeded the liabilities (including the Ammon & Person claims) by about $50,000. The principal asset was the company’s manufacturing plant and equipment in Jersey City, listed on the balance sheet at cost, and it was stated at this creditors’ meeting, by or for the directors, that the land and building were worth more than $60,000, and would sell for at least that sum. This property was subject to a first mortgage of $18,000 and a second mortgage of $12,000. Pour months after the agreement was signed the second mortgagee commenced foreclosure proceedings, and the land and building were sold by the sheriff November 15th, 1923, for the amount of the decree in foreclosure. The directors of the Keystone company have in hand for distribution among the creditors about $4,200, with but a small amount of equipment still to dispose of. The complainants are creditors of the Keystone company who entered into the agreement aforesaid, their total claims being about $13,000. They bring this action against the directors of the Keystone company, charging that under the agreement the directors became trustees of the assets of the Keystone company for the benefit of the complainants and such other creditors as joined in said agreement and as such trustee, they were bound to manage and liquidate the assets with fidelity and skill, but that they were negligent in their trust, in that they failed to dispose of the company’s land and buildings at their fair value, and permitted them to be sold under foreclosure for a wholly inadequate price. They pray that the defendants account for the assets of the Keystone company, and that they be charged with the value of the equity of the land and building above the mortgages.
    ' “Under the agreement the defendants became trustees of the assets of the Keystone company for the benefit of the creditors. As such trustees it was their duty to act with care and vigilance, and to manage and dispose of the assets with the same care, diligence, prudence and skill which they would bring to the conduct of their own transactions. They were bound to perform their duties actively and not passively, and to be diligent and careful in preserving the trust property and in reducing it to cash. For honest mistakes, which a prudent and careful man might make, they are not responsible. Williams v. McKay, 40 N. J. Eq. 189; Monroe v. Osborne, 48 N. J. Eq. 248; Speakman v. Tatem, 48 N. J. Eq. 186; affirmed, 50 N. J. Eq. 484-

    “The evidence shows that the Keystone company purchased its plant in December, 1919, for $63,500, and thereafter expended considerable money on it for its business purposes. An expert on real estate values, produced by the defendants, testified that 'values in the locality had remained stable since 1919, although he also testified that the market value of the land and building at the time of the foreclosure sale, for ordinary uses as an industrial or factory property, was $42,000. I gather from his testimony that, to one desiring the property for a use somewhat similar to that for which the Keystone company used it, its value was more than $42,000. It is certain from the representations as to value, made by or for the defendants at the creditors’ meetings at which the agreement was proposed, that the defendants believed the property to be worth at least $50,000 for ordinary industrial purposes, and, after the agreement was executed, they offered it for sale at $100,000, although later offering to accept a less sum, the lowest asking price not being shown by the testimony. The purchaser at the foreclosure sale has rented the property under a five years’ lease, with the privilege of two years’ renewal, at the rate of $600 per month, the tenant being required to pay the water rent. As against these, indicia of the fair value of the property is the fact that it was sold at sheriff’s sale, after due, legal advertisement, subject to prior liens, for a sum which represents a value of about $31,500.

      “I am satisfied that the defendant used reasonable efforts and proper care and diligence in endeavoring to effect a private sale of the property. They offered it to many persons and corporations; advertised it in several newspapers and listed it with real estate agents, all without avail. I do not think, however, that, having failed in their efforts to make a private sale, they did all that prudent and careful men should have done. The subpoena ad respondendum in the foreclosure suit was served in August, 1933, and the defendants turned it over to their attorney, and thereafter neither he nor they paid any attention to the suit. The property was sold by the sheriff on the day advertised, November 15th, 1933, no one appearing to bid, except a representative of the holder of the mortgage and a real estate speculator, who makes it a practice to attend sheriff’s sales to 'pick up bargains,’ and who bought the property for the amount of the decree. The defendants did not concern themselves to ascertain the advertised date of the sale, and they failed to notify the creditors •that foreclosure proceedings were pending, although the complainants herein, or some of them, from time to time and up to the day before the sale, requested information from the defendants concerning the progress of their trusteeship. The complainants were not aware that the mortgage was being foreclosed, and neither the defendant nor the creditors knew that the property had been sold until after the sheriff’s deed had been delivered to the purchaser. The ■defendants seek to excuse themselves for thus passively permitting the property to be sold, by saying that they had no funds in hand with which to protect the property, and that their unsuccessful efforts to make a private sale (which continued down to the time of the sheriff’s sale) convinced them that there was no market for the property at a price above the liens thereon. But there were several things they could have done, and their failure to do all, or some of them, cannot be said to be due to an error in judgment, which a prudent, diligent and careful trustee might make. Immediately upon receiving notice of the foreclosure suit, when they had made some unsuccessful attempts at private sale, and when they were without funds to protect the property from foreclosure, they should have notified the creditors of the situation. They could also have put the property up at public sale and thus determine whether or not it would bring anything above the encumbrances. They could also have kept watch on the progress of the foreclosure, and could have given notice of the sheriff’s sale by other and more prominent means than the usual fine print of published legal notices, such as advertisement in large type in the public press and circular notices to creditors, real estate dealers and persons likely to be interested in the sale of this class of property.
    “A prudent and careful trustee would have done these things, and if the evidence showed that the property could have been sold for a better price than was realized at the sheriff’s sale, I would hold the defendant liable for neglect of duty, but there is no evidence that had the creditors been notified that foreclosure proceedings were pending, they would have arranged to buy the mortgage, or obtained an extension, and would have found a purchaser at a price which would have netted something for the creditors. Neither is there any evidence that had the defendants put the property up at public sale, or had they given the sheriff’s sale wider publicity, a bidder would have appeared and offered more than was realized for the property at’ the sheriff’s sale. Mere speculation that the property would have brought more than the amount of the liens thereon, had the defendants followed the courses I have mentioned, is not sufficient to hoid them liable to the complainants for their failure to act in the manner in which I think prudent and careful trustees should have acted. Monroe v. Osborne, supra.

    “The result is that the complainants’ prayer for an accounting will be granted, but the defendants will not be charged with loss on account of the foreclosure sale of the property in question.”

      Messrs. McDermott, Enright & Carpenter, for the appellants.

      Messrs. Fish & Fish, 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 Eielder.

For affirmance — The Chiee-Justice, Trenchard, Parker, Minturn, Kalisoh, Black, Campbell, Lloyd, Mc-Glennon, Kays, Hbteield, JJ. 11.

For reversal — Katzenbach, White, Van Buskirk, JJ.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the matter of the dissolution of the New Jersey Refrigerating Company (Commercial Trust Company of New Jersey, trustee), petitioner-appellant.
    [Argued November 4th, 1925.
    Decided February 1st, 1926.]
    On appeal from an order of the court of chancery advised by Vice-Chancellor Church.

      Messrs Fish & Fish, for the petitioner-appellant.

      Mr. J. Henry Harrison, for the respondents Prank J. Bock and Edward H. Wright, receivers of Hew Jersey Eefrigerating Company.

      Mr. Merritt Lane, fox the respondent Gustav W. Lembeck.
   Per Curiam.

This is an appeal from an order of the court of chancery, dated February 34th, 1935. On May 1st, 1913, the Lembeck & Betts Eagle Brewing Company1 made an issue of corporate bonds in the amount of $500,000, payable in twenty years from date. These bonds were secured by a mortgage upon the real estate, plant, fixtures, machinery and equipment of the obligor. The trustee under the mortgage was the Commercial Trust Company of New Jersey. The mortgage contained a sinking fund provision. The trustee holds $168,000 par value of the bonds in the sinking fund. There are outstanding bonds to the amount of $332,000. After the enactment of the prohibition amendment to the federal constitution the brewing company changed its name to the New Jersey Refrigerating Company and engaged in the cold storage business. Dissension among the stockholders arose. The refrigerating company was dissolved. Dissension then arose among the trustees who were liquidating the business. Due to this dissension, receivers were appointed by the court of chancery in June, 1923. The company was solvent at the time of its dissolution. Creditors, by an order of the court of chancery made on April 19th, 1924, were directed to file their claims with the receivers. The trustee under the above-mentioned mortgage filed, on behalf of itself and the bondholders, a claim for payment of the outstanding bonds, with interest to May 1st, 1932. On August 4th, 1924, the receivers disputed the claim of the trustee except for the purpose of proving its claim for the payment of any deficiency after exhaustion of the mortgage security. This notice was given in pursuance of chapter 225 of the laws of 1921. P. L. 1921 p. 72k. This law provides that within sixty days of the giving of the notice the claimant shall bring suit or be forever barred. The trustee took no action until December 16th, 1924, when it filed the petition in this proceeding praying that its claim for the full face value of the bonds with interest to May 1st, 1932, be established, the receivers ordered to accept the same, and that in connection with the assets in the hands of the receivers the court make such order as would assure the discharge of the personal liability of the obligor of the bonds.

The receivers filed an answer to this petition, from which it appears that on the return of an order made on August 2d, 1924, requiring the stockholders and the Commercial Trust Company of New Jersey, as trustee, to show cause why the receivers should not be directed to consummate the sale of the real estate to a purchaser at private sale, the trustee appeared. The court decided that the property should be sold at auction. An order was made directing the receivers to sell the property either for cash, or in their discretion subject to the mortgage. To this order the Commercial Trust Company, as trustee, through its solicitors, consented. The property was sold subject to the mortgage. The sale was confirmed by the court of chancery upon due notice to the trustee. The property was acquired by the National Cold Storage Company, which assumed the mortgage and agreed to carry out the provisions thereof. The National Cold Storage Company has a paid up capital of $1,000,000 and a large surplus. These facts are not denied by the trustee.

Upon the petition of the trustee filed December 16th, 1924, an order to show cause was made. Testimony was taken. The order of February 24th, 1925, which is the order appealed from, was made as the result of the hearing. This order declared that the mortgage security and the assumption of the payment of the bonds by the National Cold Storage Company afforded reasonable and adequate security to the trustee and bondholders without the segregation of assets in the receiver’s hands to meet any contingent liability of the New Jersey Refrigerating Company.

There was no opinion filed below so we have not the benefit of the vice-chancellor’s grounds for the making of the order. Our examination of the pleadings and testimony satisfy us, however, that the order should be affirmed. We deem it unnecessary to discuss all the points argued in the briefs.

The reasons which control us in our opinion that the order should be affirmed are two. The first is that the petitioner (the trustee imder the mortgage) had cast upon it the burden of showing the mortgage security and the assumption by the National Cold Storage of the provisions of the mortgage to be insufficient security. This burden the trustee wholly failed to discharge. The second reason is that the trustee was fully apprised of the proposed sale of the property, subject to the mortgage, if the receivers in the exercise of their discretion thought best to sell subject to the mortgage. The trustee appeared in court at the time the sale was being considered. It not only offered no objection to the sale, but actually consented to the order of sale. By this conduct we think the trustee estopped from asking the relief prayed for in its petition.

The order is accordingly affirmed.

For affirmance — The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Camfbell, Lloyd, White, Van Buskirk, MoGlennon, Kays, Hetfield, JJ. 14.

For reversal — None.


text:
    Walter A. Dittrich, complainant-respondent, v. Alberto Cline, defendant-appellant.
    [Argued October 22d, 1925.
    Decided February 1st, 1926.]
    On appeal from a decree advised by Vice-Chancellor Ingersoll.

      Messrs. Cole & Cole, for the appellant.

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

This is a bill to quiet title. The answer challenged the right of the complainant to file the bill on the ground that he was not in peaceable possession of the premises claimed, and, consequently, not within the statute. Penrose v. Absecon Land Co., 94 N. J. Eq. 436. The vice-chancellor decided that the complainant was in peaceable possession, and, accordingly, ordered an issue at law as provided by the statute for quieting titles. Comp. Stat. p. 5899. Defendant appeals, and it is argued that the facts appearing at the hearing in chancery did not warrant a finding of peaceable possession.

It appeared that the premises in question had been a tract of unimproved land on the beach front, and that there was some dispute about the title; that the complainant, some little time before the bill was filed, entered upon the premises, which are plotted as two adjoining lots, and built thereon a one-story building, more or less temporary in character, but still a building, and which was so placed as to cover the division line between the two lots, and, therefore, affected both. Defendant brought no ejectment or trespass or other suit, and, after the building was completed, defendant’s counsel wrote a letter to the father-in-law of the complainant (who appears to be interested in the case, as will appear, presently), calling attention to the erection of the building, and concluding as fqllows:

"Do you object to telling us why you erected this structure ? Unless we have a satisfactory reply during the course of the next ten days, our client will either remove the structure or bring ejectment, as she may be advised, and this letter is to be treated as a demand for the removal of the structure and possession.”

Touching this situation, the vice-chancellor commented as follows:

. “No action is taken at the expiration of the ten days by either party. Nothing is done to make a complaint that that is not a peaceable possession after that time, and the bill is filed almost two months after that time. It seems to me, for the purpose of a proceeding such as this, when the present defendant, given notice that there is an objection to the possession, and saying that within a certain time she will take such steps as to change it from a peaceable possession and an illegal one, if it is where, after that notice is given, she fails to take any steps at all, it leaves the land, I think, in the position of a peaceable possession in so far as such peaceable possession is required for a suit of this nature. What other position could the complainant take? .He has taken possession; he holds it; he is notified, in effect, that fif he don’t remove we will take steps to remove,’ and no such steps are taken.

“It seems to be the only conclusion that, when such steps are not taken, they are abandoned after notice is given. I think, for the purposes of this suit, peaceable possession is shown over the lands designated here, and I direct an issue at law.”

We concur in the views expressed by the vice-chancellor as quoted above, and agree that the existing situation showed such a peaceable possession as would support the action. It is argued on this appeal that the complainant was not the real owner of the .property, but merely thq holder of the title for the benefit of Chester, his father-in-law, and, consequently, that Chester should have been the party complainant. The answer, obviously, is that the complainant, as the claimant of the legal title as grantee in three deeds that were put in evidence, was a proper party complainant. He may be a trustee for Chester, but, even if this be so, he would still be a proper complainant, and the only objection that could be raised by a claim that he is merely a trustee and not the beneficial owner would be that his cestui should be joined as a party. But this question of non-joinder of parties does not seem to have been raised below, and, that being the case, it cannot well be raised here.

The decree will be affirmed.

For affirmance — The Chiee-Justice, Tkewchaed, Paekee, Mintuen, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gaednee, Van- Buskiek, McGlenmon, Kays, Heteield, JJ. 15.

For reversal — None.


text:
    Philip Derechinsky, respondent, v. Louis Epstein et al., appellants.
    [Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 98 N. J. Eq. 79.

      Messrs. Stillwell & Stillwell, for the respondents.

      Messrs. Lazarus, Brenner & Vickers, 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 Griffin.

For affirmance — The Chiee-Justice, Teenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, McGlennon, Kays, Heteield, JJ. 15.

For reversal — None.


text:
    Fannie Cowan, respondent, v. Elias Cowan, appellant.
    [Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Church, whose opinion is reported in 97 N. J. Eq. 168.

      Mr. William Greenfield, for the respondent.

      Mr. Frank E. Bradner, 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 Chnrch.

For affirmance — The Chief-Justice, Teenchaed, Parker, Mintuen, Kalisch, Black, Katzenbaoh, Campbell, Lloyd, White, Van Buskiek, McGlennon, Kays, HetFIELD, JJ. 14.

For reversal — -None.


text:
    W. Howard Bronsdon, respondent, v. William F. Shupe, appellant.
    [Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 98 N. J. Eq. 67.

      Mr. Lichtenstein & Lichtenstein, for the respondent.

      Mr. Harry Augenbliclc, for the appellant.
   Per Curiam.

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

For affirmance — The Chiee-Justice, Teenchaed, Pakkee, Mintubn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gaednee, Van Buskibk, McGlennon, Kays, Heteield, JJ. 15.

For reversal — None.


text:
    Harry Campton, trustee, etc., respondent, v. Edwin A. Burke et al., appellants.
    [Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery, where Vice-Chancellor Church filed the following memorandum:
    “Elizabeth Johnson, one df the defendants in this case, filed a petition in bankruptcy on October 24th, 1922, and was adjudicated a bankrupt. The complainant was appointed trustee. About the 11th of May the bankrupt was a lessee in a certain lease made to her by one 0. H. Brown, of Spring Lake, covering two boarding-houses known as the Johnson Cottages for a term from January 1st, 1917,- to January 1st, 1922.
    “In May, 1922, the bankrupt caused the lease to be renewed for a further two-year period, and had the lease taken in the name of Edwin A. Burke, her nephew, another of the defendants. On May 13th, 1922, the bankrupt assigned and transferred to her nephew, Burke, all furnishings, linens, china, glassware, furniture and other property in the two boarding-houses, and also a certain Ford sedan automobile.
    “The sole question at issue is whether these transfers were in fraud of creditors. At the time of the transfer she was indebted to her creditors; no consideration was paid by Burke, and Elizabeth Johnson has at all times dealt with the property as though it were her own. Neither Burke nor Johnson appeared in court.
    “Without discussing the testimony further, I believe, on the evidence presented before me, that the transfers were clearly fraudulent, and made to prevent creditors from benefiting by any sale of the property.

      “I shall therefore advise a decree that these transfers be set aside, and that a proper accounting be had as to the value of the lease and the personal property as of the time of the transfer.”

      Messrs. Lum, Tamblyn .& Qolyer, for the respondent.

      Messrs. Edwards & Smith, 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 Yice-Chancellor Church.

For affirmance — The Chief-Justice, Teehchabb, Pabkeb, Mihtueh, Kalisch, Black, Katzehbach, Campbell, Lloyb, White, Gabbhee, Yah Buskiek, McGlehhoh, Kays, Heteielb, JJ. 15.

For reversal — None.


text:
    George R. Christian, appellant, v. Factory Supplies Corporation et al., respondents.
    [Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery, where Yice-Chancellor Church filed the following opinion:
    “These are two creditors’ bills filed by judgment and execution creditors of the Factory Supplies Corporation to release two pieces of real estate which it is claimed in equity belonged to the corporation at all times during the existence of the debt.
    “The facts in the two cases, as gleaned from the somewhat voluminous evidence, are as follows:
    “Mrs. Wasserbaeh, being the owner of several lots on Magazine street, in the city of Newark, conveyed the property to Factory Supplies Corporation on February 25th, 1921, without consideration, to enable the corporation to execute a mortgage, including this property, to Morris Heller. The mortgage was executed by the corporation to Heller on March 4th, 1921, and on May 10th, 1922, a deed was drawn from the corporation to Mrs. Wasserbaeh for this property, but was not executed until November 13th, 1922. The object of this last deed was to give Mrs. Wasserbaeh back the title to her property.
    “The complainant did not appear at the hearing. He obtained a judgment against Factory Supplies Corporation in the Essex circuit court on November 21st, 1922, for $17,-966.49; execution issued January 7th, 1923; sale held on October 2d, 1923. The sheriff executed a deed, describing the property in question as 'First Parcel/ for the consideration of $100, purporting to convey to complainant the property in question, with other property, by virtue of the execution, on the judgment against Factory Supplies Corporation.
    “The facts concerning this judgment are set out in the finding of facts in the casé of George B. Christian v. Factory Supplies Corporation, John 0. Wasserbaeh et al., tried with this case.
    SECOND SUIT.
    “Factory Supplies Corporation filed its certificate of incorporation, dated June 7th, 1917, and organized under the laws of this state June 25th, 1917.
    “The complainant and John C. Wasserbaeh were two of the incorporators. The corporation authorized the purchase of the assets of a New York corporation, among which was a factory property on Paris street, in Newark, New Jersey. The factory property was conveyed to the Eactory Supplies Corporation in April, 1918.
    “On July 6th, 1920, the Lehigh Valley railroad docketed a judgment in the Essex common pleas for $490 against the Eactory Supplies Corporation, also against the New York corporation, which had conveyed to the New Jersey corporation. This judgment was, on April 12th, 1922, assigned to John E. Eaughnan, who caused an execution to issue November 14th, 1922. The factory property was levied upon and sold by the sheriff to Patrick W. Smith for $400. The sheriff’s deed is dated January 30th, 1923. On Eebruary 19th, 1923, Patrick W. Smith conveyed'this property to Cellu-Waste Company, a New Jersey corporation.
    “November 21st, 1922, complainant obtained a judgment against Eactory Supplies Corporation for $17,966.49 in the Essex circuit court. Execution issued January 7th, 1923; sale held and the sheriff executed his deed, purporting to convey the factory property to complainant with the other property.
    “When the Eactory Supplies Corporation was organized, the complainant, who had been elected treasurer and secretary, offered to show Wasserbach, who had been elected president, how to open a corporation set of books. Complainant, then a clerk in the Wall street office of Day & Heaton, went to Wasserbach’s house. He there made some memoranda on slips of paper and told Wasserbach to copy the entries in a book, which is in evidence, and purports to set forth the assets, liabilities and capital of Eactory Supplies Corporation, dated July 1st,. 1917. In the liabilities is 'George R. Christian, $13,289.95.’ This book was never used again. There was no meeting of the board of directors in connection with this book, nor had the New Jersey corporation assumed any liabilities when it bought the assets of the New York corporation. Complainant later procured from Wasserbach a note of the corporation to protect some claim complainant may have had against Wasserbach, but he had advanced no money and did not give any money to the corporation when he took the note. It was upon this note, or a note given under similar circumstances, that complainant’s judgment in the Essex circuit court is based.
    “There have been two destructive fires in the factory building, and the present title holder, Cellu-Waste Company, has expended thirteen or fourteen thousand dollars upon rebuilding and equipping the plant.
    “As to suit number one, I am satisfied that this property belonged to Mrs. Wasserbach. The New Jersey corporation never had title until she conveyed to it to assist it in securing a mortgage, and her conveyance was without consideration, and the corporation thereafter reconveyed to her.
    “As to the second suit, there is no proof of any debt due from the Pactory Supplies Corporation of New Jersey. Neither is there any proof or admission of any sum of money loaned by Christian, the complainant, to Wasserbach.
    “It should be noted that Christian, who was a broker in New York, defaulted in a large amount and has departed for parts unknown.
    “I cannot see that the complainant has any rights whatever in the properties in dispute, and I shall therefore advise a decree dismissing the bills.”

      Mr. Stark B. Ferriss and Mr. WiTUam H. Osborns, for the appellant.

      Mr. Cecil H. MacMahon, 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 Church.

No. 14—

For affirmance — The Chief-Justice, Teen-chard, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, McGlehnoit, Kays, Hetfield, JJ. 11.

For reversal — Parker, Mintuen, Vajst Buskirk, JJ. 3.

No. 15—

. For affirmance — The Chiee-Justice, Tkenchaed, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Van Buskiek, McGlennon, Kays, Heteield, JJ. 13.

For reversal — Pabkek, Mintubn, JJ. 2.


text:
    M. Casewell Heine et al., receivers, &c., respondents, v. Charles R. Hayden et al., appellants.
    [Decided February 1st, 1926.]
    On appeal from an order of the court of chancery advised hy Vice-Chancellor Baches, whose opinion is reported in 98 N. J. Fq. 88, under the name of Stand er v. Sims-Magneto Oo.

      Mr. William Harris, for the respondents.

      Messrs. Lum, Tamblyn &Colyer, for the appellants.
   Per Curiam.

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

For affirmance — The Chiee-Justice, Teenchaed, Pabkek, Mintubn, Black, Katzenbach, Campbell, Lloyd, Van Buskiek, McGlennon, Kays, Heteield, JJ. 12.

For reversal — Kalisch, White, Gaednee, JJ. 3.


text:
    DeForest Radio Company, respondent, v. Radio Corporation of America, appellant.
    [Decided February 1st, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Baches, who filed the following opinion:
    “The DeForest company manufactures and sells radio apparatus. The radio company is one of its competitors, .and it is said that competition is keen. The radio company :for the past two or three years has planted spies in the ■complainant’s factory in Jersey City to learn, it is claimed, its trade and trade secrets. Probably half a dozen of them at times held jobs in the complainant’s works, doing the bidding of the radio company, and all the while pretending to loyally serve both employers, for pay from each. Upon the filing of the bill the radio company was enjoined to remove the spies, to discontinue the practice, from making use of the information obtained, and the written reports and data were ordered delivered up and impounded with a master, and the defendant was ordered to show cause why the injunction should not continue until final hearing.
    “The radio company admits imposing its spies, as employes, on the complainant, not, however, it says, to pry into the affairs, generally, of the complainant and pirate its inventions and business, but to obtain information to prove and establish, judicially, that the complainant was infringing some of its patents, as it suspected, and it claims to have discovered, and offered proof to show, that the complainant has been a chronic infringer of patents, and at the present time is infringing one of its patented devices, and it is argued that, therefore, the complainant is not in court with clean hands, and, consequently, is not an acceptable suitor in equity. To this end the defendant has shown that back in 1906 the complainant’s predecessor was decreed to have infringed a Marconi company patent, and again in 1917 another patent of that company known as the Elemming patent on a vacuum tube. It appears that in the latter suit, on a counter-claim, the Marconi company was also decreed to have infringed the DeEorest company’s patent on its vacuum tube. And, again, it is shown that later the complainant’s patent was declared to infringe the so-called Armstrong patent on a regenerative tube radio set owned by the Westinghouse company, and that the complainant resorted to divers schemes to evade the decree, and that it was enjoined and adjudged in contempt and fined. An alleged breach of a covenant not to sell radios for commercial purposes and the alleged violation of an injunction at the suit of the radio' company in this court restraining the breach are also testified to. This suit was dismissed on final hearing. These and other things are cited as the reason for the espionage in the distant past. They, however, have no bearing on the present controversy on the question of unclean hands, the only ground on which the defendant hopes to escape responsibility, though they may, as history, lend color to the defendant’s claim that the complainant is now infringing. The defendant’s spies were in the complainant’s service when the biE was filed, so it claims, and the defendant admits that they were there until two weeks before, and for, as the defendant asserts, to discover whether the complainant was using a certain filament wire — thoriated wire — in its tubes in violation of what is known as the Langmuir patent, which the defendant has a license to use. The complainant admits using thoriated wire, but denies the validity of the patent, and also denies that it is infringing the patent. That issue is pending and is yet to be determined. But if the complainant is in fact infringing the defendant’s patent, that does not necessarily involve moral turpitude sufficiently to invoke the doctrine of clean hands, for it is commonly recognized that a patent is regarded as nothing more than a license to sue, and that an invention has no owner until he is judicially found, and often he is not until by the court of last resort.
    “The complainant ought not to be denied a hearing on the threshhold of its appeal to equity upon the case made out against the defendant. The defense of justification for an admittedly invidious practice, if it is a defense, ought not to be decided on this motion unless it is clear beyond question, and that it is not. Moreover, I am not satisfied that the efforts of defendant’s spy system were confined, as it is claimed, to ferreting out infringements and violations of the covenant mentioned. It would seem to have been entirely unnecessary to the detection of either, or for that matter of any other alleged infringemient, for the finished products are on sale and procurable in the open market. Surely, samples of the thoriated wire are, and, besides, a spool of it had been furnished the defendant by the complainant, and all the information as to its use and as to the breach of covenant was as readily obtainable outside the complainant’s works as by the use of false servants in it. I am not at all content with its explanation that the defendant’s aims were solely self-protective. I am impressed that it sought a line on all the complainant’s activities, and, certainly, its orders to the spies were not short of that. Their espionage was general. However that may be, the case, as it stands, convicts the defendant, by its own confession, of unlawful conduct, by mean and reprehensible methods, for no one admires a spy nor his works, not even his employer. Whether spying through debauched servants is justifiable, and whether the facts upon which the justification rests convict the complainant of unclean hands, are matters'to be settled only at final hearing, and until then the defendant will be enjoined and the information impounded.”

      Messrs. Wall, Haight, Carey & Hartpence, for the respondent.

      Mr. Jolm L. Griggs, 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 Backes.

For affirmance — The Chief-Justice, Trenchard, Parker, Minttjrn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, McGlennon, Kays, Hetfield, JJ. 15.

For reversal — Kone.


author: Walker, Chancellor.

text:
    Frieda Greenberg, petitioner, v. Fred Greenberg, defendant.
    [Decided June 11th, 1926.]
    1. Alimony for a wife and maintenance for children may be obtained in a divorce suit without a claim therefor by way of pleading in the petition for divorce, provided a «prayer for alimony is inserted, and the special master, on reference, is requested by the petitioner to •take testimony respecting her and the children’s needs and the faculties of the husband, on which the master is required to give five days’ notice to the defendant of his sitting to take such testimony.
    2. If no such request is made by the wife, and, consequently, no such notice is given to the defendant, and the master files his report, his authority is at an end, and no further power or duty remains in him with reference to the case, and could only be devolved upon him by a subsequent order of reference.
    3. A master’s authority as to the subjects and exitent of his examination and report ds limited and controlled by the order of reference, and he must cdnfine his inquiry to the directions of such order.
    4. Under the statute of this state alimony cannot be given in a gross sum, but an agreemeent made by the spouses to give the wife certain land or money (or both) in lieu of all claims upon the husband for maintenance, will, on a divorce being granted, be,enforced, provided the provisions for the wife are for her benefit and are suitable and adequate for her support, and are so found by the court after due investigation.
    5. The husband’s liability to support his wife (and children) and the justice of the wife’s enjoyment of her right, are subject to change of circumstances which a court cannot anticipate; hence, complete justice requires that the court’s power to act shall be kept open so long as needed to direct just variation.
    6. A wife’s claim for alimony is a purely personal right and in no sense a property right, a right in its nature not susceptible of assignment, or enjoyment by her in anticipation.
    7. The chancellor is general guardian of all infants, and with reference to their maintenance his jurisdiction parens patries obtains, and the incapacitated parties, when brought before the chancellor, are wards of court.
    8. When an infant child is not included in a composition for alimony between husband and wife, it is not bound nor its interests concluded thereby, nor could they be even if included.
    9. Though a husband enters into a composition agreement with his wife whereby alimony in gross is agreed upon in discharge of his future and continuing liability to support her, in changing circumstances he may be visited with an order for the payment of alimony in excess of any gross sum agreed upon between them in settlement.
    10. Semble: If a wife, through extravagance or misfortune, loses the gross sum settled upon her in lieu of alimony, and thereby becomes an object of charity and is driven to seek support from the overseer of the poor, her husband would be liable for her support in proceedings before a magistrate in exoneration of the liability of the municipality.
    11. A wife cannot invoke the power of the court to award alimony in the face of her agreement for a sum in gross by merely moving for it, but must file a petition setting forth the facts upon which she relies to show that she is entitled to have the question opened and her claim considered; she must tender an issue to defendant by proper, pleading.

      On application of defendant to restrain proceedings for alimony.

      Messrs. Hirschberg & Rubenstein, for the defendant-applicant.

      Mr. Charles Stenberg, for the petitioner-respondent.
   Walker, Chancellor.

By order of reference filed herein July 28th, 1925, this cause was referred to a special master to ascertain and report as to the truth of the allegations of the petition and his opinion thereon, and that the petitioner proceed to take depositions and other evidence before the said special master to substantiate and prove the allegations in said petition and to bring on the hearing of the cause ex parte, and that he do return, together with his report and as part thereof, such depositions and other evidence as may be taken before him in pursuance of that order. The petition alleged the marriage of the parties, the cause of action for divorce and the residence of the petitioner, and prayed a dissolution of the marriage, “and that the defendant may be compelled by the decree of this honorable court to support her and the said infant child of the marriage, and that she may be awarded the custody of said child,” &c.

It is not necessary for a wife to plead in a petition for divorce that she is entitled to alimony. She may obtain it by a prayer in that behalf, and, when she so prays, rule 262 operates upon the situation. That rule provides that whenever a wife who petitions for divorce prays for alimony for herself and for maintenance of the children of the marriage, or both, and the defendant has been served with process within this state, but failed to answer the petition, a reference shall be made to a special master, who shall, if requested by the petitioner, take testimony respecting the needs of the wife and children and the faculties of the husband, and shall in his report recommend what, in his judgment, is a proper sum that the husband should pay to the wife for alimony and for maintenance of the children; provided, that before such inquiry is made the master shall give five days’ notice to the defendant of his sitting to take such testimony. On October 19th, 1925, the special master’s report was filed, and in it he certified that all of the material facts charged in the said petition were true, and that a decree of divorce should be granted to the petitioner. Thereafter, and on December 9th, 1925, a decree of divorce nisi was filed and entered in the cause. The petitioner, however, pending the reference, failed to request the master to take testimony respecting the needs of the wife and child and the faculties of the husband, and, consequently, the master did not give notice to the defendant of his sitting to take such testimony. But, after the entry of the decree nisi the petitioner requested the master to give the notice required by rule 262, which he did, and, upon its return, counsel for defendant appeared before the master and objected to his proceeding with the matter because of the entry of the decree nisi, after which he had no legal right to deal with the question of alimony; also, that on July 6th, 1925, this court made an order compelling the defendant to pay petitioner the sum of $2,687 in full satisfaction of any and all claims for present and future alimony by and on her behalf. Thereupon the master determined not to proceed with the consideration of the application for alimony until the right to do so should be decided by this court. An order was then made requiring the defendant to show cause why she should not be permanently restrained from pursuing her pending application for alimony before the special master, or before any other member of this court. And now, on the return of the order to show cause, the questions have been submitted to the court for decision.

Eirst. As to the proceedings before the master: A master’s authority as to the subjects and extent of his examination and report is limited and controlled by the order of reference. Stonington Savings Bank v. Davis, 15 N. J. Eq. 30. And he must confine his inquiry to the directions of the order of reference. Wycoff v. Combs, 28 N. J. Eq. 40, 41. While the order of reference in this case did not in terms include a direction to the master to ascertain and report what, in his judgment, was a proper sum the husband should pay to the wife for alimony and for maintenance of their child, yet such a direction was within the purview of the reference by virtue of rule 363 and the inveterate practice of the court. But this power could only be exercised by the master if it were invoked by the request of the petitioner and notice to the defendant. Furthermore, when the master filed his report his duties and his powers were concluded; no further power or duty resided in him with reference to the case, and could only have been devolved upon him by a subsequent order of reference. This is so obviously true that citation of authority to support the proposition would be entirely superfluous.

When a master is ordered to inquire and report, and he files his report, he cannot afterward recall the case to himself, take further proceedings and make supplemental report. He can act again only by virtue of a re-reference to him.

All further proceedings before the master under the order of reference heretofore made herein will be perpetually restrained.

Secondly. The broader question as to whether the petitioner should be enjoined from proceedings before any member of the court for the collection of alimony for her support, and for maintenance of the child of the parties to this suit, by reason of the fact that this court, on July 6th, 1935, made an order compelling the defendant to pay the petitioner the sum of $3,687 in full satisfaction of any and all claims for present and future alimony by and on behalf ’of the petitioner. The order, however, contained this significant provision: That the sum mentioned ($3,687) should not preclude the petitioner from continuing with her application (whatever it might have been) for an order requiring the defendant to support and maintain the infant child of the parties; and, too, the order recites that upon application for it the solicitors of both parties, and the petitioner personally, appeared, and that she expressed her complete willingness to accept the sum ($3,687) in lieu of her right to any. present or future alimony for her support and maintenance.

The law on the subject of alimony in gross has been considered and decided both in this court and in the court of errors and appeals.

In Calame v. Calame, 25 N. J. Eq. 548, the court of errors and appeals, 1874, held that under the statute of this state alimony cannot be given in a gross sum; but that agreement made by the spouses to give the wife certain land and money in lieu of all claim upon the husband for maintenance will, on a divorce being granted, be enforced in equity. The statute has not been materially changed, and this is still the rule. In Sobel v. Sobel (Court of Errors and Appeals, 1926), 99 N. J. Eq. 376; 4 N. J. Adv. R. 647, it was held (at p. 650) that there seems to be no good and sufficient reason why alimony in gross may not be allowed and enforced when assented to by the parties, and the court of chancery, as the representative of the state to guard its interest and enforce its statutory policy in relation to marriage and divorce, sanctions such a course.

And (at p. 651) that it is quite clear that the prime question is whether or not the provisions for the wife are found to be suitable after the court has looked into the arrangements and their surroundings, which provision is for her benefit and found to be adequate for her support, and where it appears that the parties have agreed upon a settlement as to permanent alimony for the future support of the wife and submitted the same for aprpoval, and the court, after due investigation, finds the provision for the support of the wife to be adequate, to make the decree accordingly. And Mr. Justice Kalisch in that case (Sobel) remarked that no such course was followed; that the court (chancery), however, inquired into the circumstances of the litigants and under the evidence found that the provision made for the wife’s support was inadequate, and that she was in needy circumstances, and, therefore, very properly made the order for permanent alimony, which was affirmed.

Thus it appears that, although the court cannot award alimony in gross, it may, nevertheless, in proper circumstances, approve a' settlement made between husband and wife for alimony due and to- grow due in the future.

In Hires v. Hires (1920), 91 N. J. Eq. 366, affirmed on opinion below, 92 N. J. Eq 451, Vice-Chancellor Learning observed (at p. 369 of 91 N. J. Eq.) that in Bishop v. Bishop (1897), P. D. 188, the English court of appeals held that the powers and duties conferred on the court by the statutes of Victoria (citing them) as to the divorced wife’s maintenance, which statutes contemplate that regard should be had to her fortune, the ability of her husband and the conduct of the parties; that the wife could not preclude herself by her agreement from invoking the aid of the court to obtain further maintenance in the event stated (husband’s adultery after agreement for support executed); that alimony, after divorce, was justified in an amount in excess of the amount specified in the agreement. And the vice-chancellor went on to hold (at p. 870) that our statute, Divorce act (Clomp. Stat. p. 2085 § 25), providing for alimony of a wife and the care, custody and maintenance of children, pending a suit for divorce or nullity, or after decree of divorce, does not essentially differ from those conferred by the English acts to which he referred.

And in Irwin v. Irwin (1926), 98 N. J. Eq. 454 the same vice-chancellor held that our statute does not empower the court of chancery to award a sum in gross as alimony, and exhibits an intention that the subject shall be continuously dealt with according to varying circumstances of the parties. The husband’s ability to pay for the support of his wife and the justice of the wife’s enjoyment of her right are subject to the change of circumstances which a court cannot anticipate, and, hence, complete justice requires that the court’s power to act shall be kept open so long as it shall be needed to direct just variation. A wife’s claim for alimony is a purely personal right, and not in any sense a property right, a right in its nature not susceptible of either assignment or enjoyment by her in anticipation, citing Lynde v. Lynde, 64 N. J. Eq. 736, as authority for the proposition.

We have before the court in this case, not only the wife, but the infant child, and here the chancellor’s jurisdiction parens partial obtains. Buckley v. Perrine, 54 N. J. Eq. 285, 2.92. The chancellor is general guardian of all infants, idiots and lunatics. Whart. Lex. (12th ed.) 155. And the incapacitated party, when brought before the chancellor, becomes a ward of court. In re Vieweger, 93 N. J. Eq. 527, 532.

Now, the infant child of the parties was not included in the agreement between the husband and wife (nor could it have been in any such way as to bind it or conclude its interests), the composition of alimony between them not including maintenance for the child, and the order expressly contained a provision that it should not preclude the petitioner from continuing with her application for an order requiring the ’defendant to support and maintain the infant child of the parties thereto.

As by the express contract of the parties to this suit the question of the child’s maintenance is still open, and, as the statute contemplates that a wife cannot preclude herself by her agreement from invoking the aid of the court to obtain further maintenance, and that the subject shall be continuously dealt with according to the varying circumstances of the parties, the petitioner before me is, undoubtedly, entitled to seek an award of alimony for herself from the defendant, as well as maintenance for the child, notwithstanding the order for payment to her of a sum in gross in lieu of alimony. However, this petitioner, having appeared before the vice-chancellor, who advised -the order for settlement, and “expressed her complete willingness to accept the sum of two thousand six hundred and eighty-seven dollars [$2,687] in lieu of her right to present and future alimony for her support and maintenance,” she will, doubtless, have a heavier burden to carry in showing that she is entitled to have that settlement set aside and further alimony granted to her.

In view of the law of alimony as established by the cases, if a husband enters into a composition agreement with his wife, whereby alimony in gross is agreed upon in discharge of his future and continuing liability to support her, nevertheless, in changing circumstances, he may be visited with an order for the payment of alimony in excess of any gross sum agreed upon between them in their settlement; and so it would seem if the sum settled upon -the wife, through extravagance or misfortune, is dissipated, and she thereby becomes indigent. And it must be true, in any case, that if a wife either loses or squanders any gross sum settled upon her in lieu of alimony, and thereby becomes an object of charity and is driven to seek support from the overseer of the poor, her husband would be liable for her support in proceedings before a magistrate, in exoneration of the liability of the municipality.

The result reached on this branch of the case is that the petitioner may proceed by application to the court itself for an award of alimony, notwithstanding the composition therefor reached by the parties and sanctioned by the court, for while in Sob el v. Sob el it was held that there would seem to be no good reason why alimony in gross should not be enforced when assented to by the parties and the court of chancery, if the provisions for the wife were found to be suitable after the court has looked into the arrangement and their surroundings and found the provisions to be for the benefit of the wife and adequate for her support, yet the order approving the settlement in this case does not recite or adjudge that the provisions for the wife were suitable and found to be for her benefit and adequate for her support, but, on the contrary, the order only recites that the wife appeared and “expressed her complete willingness to accept the sum * * * in lieu of her right to any present and future alimony for her support and maintenance;” and in the ordering part it simply adjudged that the defendant pay to the petitioner the sum agreed upon, in full satisfaction of any and all claims for present or future alimony by or on 'behalf of the petitioner. It is one thing for a wife to express her willingness to accept a certain sum in lieu of alimony, and quite another for the court to ascertain and adjudge that the sum is suitable and adequate for her support.

The petitioner herein, however, cannot invoke the power of the court to award alimony in the face of her agreement by merely moving for it. If she desires to press the question she must file a petition setting forth the facts upon which she relies as showing that she is entitled, under the decisions, to have the question opened and her claim considered. In other words, she must tender an issue to the defendant by proper pleading. Such petition should, of course, include the claim for and on behalf of the child.


text:
    Henrietta McClure, petitioner, v. Robert McClure, defendant.
    [Decided September 22d, 1926.]
    1. The granting' of leave to sue for divorce in forma pauperis is discretionary with the court and will be granted only when the court is convinced that substantial justice requires it; this privilege will rarely be granted to a husband; it may be revoked and the recipient dispaupered and ordered to pay costs.
    2. An indigent to whom a solicitor and counselor is assigned must, in any event, pay for services not rendered by officers of the court who áre not obliged to expend any of their own money in the prosecution ; if defendant cannot be served by the sheriff, the cost of publication must be raised and paid by the petitioner.
    3. Whenever any person shall petition the court for the assignment of a solicitor and counselor to prosecute a cause for divorce in forma pauperis, such petition shall be referred to a master to inquire and report as to the propriety of granting such application, a standing rule of court having been promulgated on the subject.
    On petition, &c. On petition for assignment of counsel in forma pauperis.

    Mrs. Henrietta McClure, applicant, pro se.

    Walker, Chancellor.
   The petitioner has applied to me for the assignment of a solicitor and counselor to prosecute for her a cause for divorce against her husband, without fee or reward, agreeably to the provisions of. the Divorce act. P. L. 1907 p. 474 § 29.

The statute provides that when any 'person shall have cause of suit under the act, and shall make affidavit that he or she is not worth $100 clear estate, the chancellor may, at his discretion, assign to such poor person a solicitor and counsel to prosecute such cause, who, together with all other officers, shall perform their respective duties without fee or reward.

Now, it will be observed that this granting of leave to sue in forma pauperis is discretionary with the court, and it ought to be granted only when the court is convinced that substantial justice requires it. Mr. Biddle lays it down that rarely will this privilege be granted to the husband. Bid. N. J. Div. Pr. (2d ed.) 176. And the privilege once granted may be revoked and the recipient dispaupered and ordered to pay costs. Moon v. Moon, 43 N. J. Eq. 403, and note. And the indigent must in any event pay for services not rendered by officers of the court. Of course, the solicitors do not have-to expend any of their own money in the prosecution of these-cases. If defendant cannot be served by the sheriff, the cost of publication must be raised and paid by the petitioner.

With the increase of divorce cases has come an increase of these applications — almost exclusively from women — in fact, this class of cases has become disproportionately large, and, while some of them are worthy and call for relief, something must be done to check the ever-increasing tendency of a large number of suitors imposing upon the court and thus obtaining, free of cost, release from the bonds of matrimony, into which, in many cases, they hastily and thoughtlessly entered, perhaps believing that they could almost as easily obtain its dissolution if they chose.

One learned master of the court has advised me to suspend the operation of the statute for a- year, and thus, for the time being, discourage the avalanche of applications of ■this kind. That I am unwilling to do, but propose for the future that the members and officers of this court shall scrutinize these applications with far more diligence than ever before, and set on foot inquiries to elicit the exact financial condition and resources of the applicants. Another master has informed me that some time since, on reference to him as to the propriety of granting permission for a woman petitioner to sue in forma pauperis, she appeared before him attired in furs and silks, her fingers bedizened with rings, yet told a story of poverty and impossibility of paying for a divorce; that when he informed her that he would not recommend that counsel be assigned for her, she denounced him and demanded that such assignment be made, saying that she knew that the state provided lawyers free for the obtaining of divorces. One of the vice-chancellors recently informed me that in a certain manufacturing city in this state, where many girls are employed, that as soon as one obtains a divorce in forma pauperis a number of them rush to his chambers applying for the same relief, and, when advised to consult counsel they say that such and such a woman, naming her, obtained a free divorce and that they are told that they are entitled to them. The advisory masters inform me that from two-thirds to three-fourths of these applications come from Trenton. This disproportion is only to be accounted for by knowledge of the fact that the court of chancer}'- and its offices are located in the state house here, and that it is a matter of ease for these would-be divorcees to come up to the state house and interview the chancellor, vice-chancellor, ■advisory master or even clerks in the chancery office, in their «ehdeavor to obtain divorces free of cost.

i; In Osiel v. Osiel, 71 N. J. Eq. 189, Vice-Chancellor Garrison held that it is the duty of all solicitors making applications in forma pauperis to see to it that applicants, so far as the solicitors are able, by investigation, to determine who are entitled to favorable consideration, and that .-all of the facts calling for the exercise of discretion in behalf -of such applicants (m forma pauperis) exist, to the end, of 'course, that if the applicant does not show himself or her••self entitled to the favorable consideration of the court, the petition should lie denied.

Hereafter, whenever any person shall petition the court for the assignment of a solicitor and counsel to prosecute a cause for divorce as a poor person, such petition shall be referred to a master, who shall diligently inquire into such application, and if he shall find that such person is poor and not worth $100 clear estate, he shall further inquire and report (a) whether such person has a probable cause for suit under the Divorce act, and, if so, what; (b) whether both or either of the spouses have the proper residential qualifications to clothe the court with jurisdiction; (c) where such petitioner is employed and at what wages, and whether he or she has any other means of support; (d) with whom said person lives, and who are the members of the family with whom he or she lives; (e) whether he or she is of financial ability to employ counsel to conduct a cause for divorce, or can obtain aid in the prosecution of such suit, and, if so, what; and (f) any other pertinent matter which the master may consider of importance and which he shall deem it proper to inform the court, a standing rule of court having been promulgated on this subject.

The case before me will be referred to a master.


text:
    Elizabeth Gondas, petitioner, v. Peter Gondas, defendant.
    [Decided September 22d, 1926.]
    1. For a solicitor or sheriff to change the return of a citation or subpoena is common practice, and has legal sanction.
    2. A voluntary appearance subjects a defendant to the jurisdiction of the court and waives defects, if any, in the process for appearance, in cases other than divorce, which arc sui generis, and in which, under the statute, jurisdiction may be obtained only by personal service upon the defendant within the state or by publication, followed where practicable by service on, or notice to, the defendant without the state. This does not mean that the defendant, having been so served o.r published against and notified, as required, and having answered before the time limited therefor, may not be proceeded against until the time for answering has expired. After answer filed, defendant having been brought in as aforesaid, the court will not decline to proceed until the time for answering has expired.
    3. Parties cannot be permitted to become divorced by any sort of consent, and proceedings in divorce cases in all their parts must be strictly adverse and in accordance with the statute. No admission binds the court, and the analogy of ordinary actions cannot be applied.
    4. If the return day in the body of a writ be different from that endorsed upon its back, that in the body of the writ is controlling. The endorsement of a return day on a writ is no part of its command and cannot operate to defeat or impair the efficacy of the return day nominated in the writ itself.
    5. As the forms of writs of subpoena and citation are substantially the same, each giving defendant twenty days after the return day in which to answer, and warning him that in default thereof such order or decree will be made against him as the court shall think equitable and just, the inadvertent issuance of a subpoena instead of a citation on a petition for divorce is unobjectionable in the absence of a motion to quash or strike out, and is cured by the voluntary appearance of the defendant in divorce as well as other causes, where the defendant in a divorce case has been brought into court by proper adverse proceedings.
    6. Semble: Where a subpoena inadvertently issues instead of citation, if objection thereto be made, it may be amended instead of quashed or dismissed.
    On petition for divorce. On application for order of reference.

      Mr. Jack C. Richer, for the petitioner.

      Mr. Arthur T. Vanderbilt, for the defendant.
   Walker, Chancellor.

Mrs. Gondas filed her petition in this cause for divorce for constructive desertion, May 3d, 1926, and sued out a subpoena ad respondendum, instead of a citation, on April 30th, tested on that day, returnable May 7th. The return day in the body of the writ was changed to May 13th, apparently, either by the solicitor or by the sheriff. This is common practice and has legal sanction. See McCracken w. Richardson, 46 N. J. Law 50; Walnut v. Newton, 82 N. J. Law 290, 293. The return day endorsed upon the back of the writ remains May 7th, as originally written. The writ commands the defendant, if he intends to malee a defense, that he file his answer on or before the expiration of twenty days from the 13th of May, &c. That time expired June 12th. However, on May 29th, 3926, an answer was filed by the defendant, in which he denied the acts of cruelty alleged against him as constituting the gravamen of the action, and prayed to be dismissed by the court.

A voluntary appearance subjects a defendant to the jurisdiction of the court and would waive defects in the process for appearance, if any, in cases other than divorce, for those cases are sui generis, and, under the statute, jurisdiction may be obtained in them only by personal service upon the defendant within the state, or by publication, followed where practicable, by service on or notice to the defendant without the state. Henry v. Henry, 79 N. J. Eq. 493; affirmed, 81 N. J. Eq. 512. This, however, does not mean that the defendant, having been served by process within the state (or by publication and service or notice without the state), and who has answered before the time limited therefor, may not be proceeded against until the time for answering has expired. The sole and only purpose of the statute is to require lawful notice to the defendant, in order to give the court jurisdiction over him. Of course, if he does not come in and answer, the petitioner cannot proceed until after the time for answering has expired, because the defendant may answer on the last day; but, having been served or notified, as required by the act, defendant may come in and answer, and after answer filed, defendant having been brought in as aforesaid, it would be absurd for the court to say: “You cannot he proceeded against until your time for answering has expired, although you have been properly brought into court and have already answered.”

In the Henry Case a citation was issued and returned into court, with an acknowledgment of service signed by the defendant’s solicitor, and an appearance and answer were filed setting up a defense. The reason advanced from the decision in the Henry Case is that parties cannot be permitted to become divorced by any sort of consent; that the proceeding in all its parts must be strictly adverse and in accordance with the statute; that the public policy does not permit a decree by consent; that no admission binds the court, and that the analogy of ordinary actions cannot be applied.

Counsel for petitioner applies for an order of reference to a vice-chancellor, and counsel for defendant consents. This he may do as the step is only one of orderly procedure, the defendant being in court.

Now, as already remarked, the subpoena was issued April 30th, and was made returnable May 7th (changed to 13th in the body of the writ, but not on the back). It was served by the sheriff of Essex oii May 7th, or six days before the return day. The return shows that a copy of the petition was served with the subpoena, as is required by the Divorce act in the case of a citation. This would doubtless be essential to jurisdiction in an ex parte ease, but where defendant comes in and answers, after having been properly served or published against and notified, as required by law and the rules of court, the lack of service of such copy would be a mere technical irregularity which the appearance would cure.

By the amendment to the Chancery act of 1913 (P. L. p. 7J/£ § 5), it is provided that every subpoena or process for appearance shall be served at least five days before its return, and the sheriff or other officer shall make return thereon at the time and place therein mentioned. This subpoena having been served six days before the return therein mentioned, the defendant was, on the return day, constructively in court, notwithstanding the endorsement on the back of the writ “Ret’ble May 7th, A. d. 1936.” Quite aside from the direction that the return be made at the time and place therein mentioned, that is, in the body of the writ, I hold that the direction to the defendant contained in the body of the writ is controlling, and that the endorsement of the return day on the back thereof is merely for convenience and is for the guidance of the sheriff. Endorsement is an entry made upon the back of a writ or warrant, and is called backing. 1 Bouv. E. Die. (Bowie's rev.) 1024- It is no part of the command of the writ, and cannot operate to defeat or impair the efficacy of the return day nominated in the writ itself. The more serious question, however, in this case is whether a subpoena issued upon the filing of a petition for divorce is legal process, notwithstanding the provision in the Divorce act that citation shall issue in those suits.

The Chancery act (P. L. 1902 p. 510 § S), treating of subpoenas, provides that they shall be in the form prescribed by the rules of the court of chancery, and in the Chancery act of 1915 (P. L. p. 187 § 5), it is provided that the subpoena to answer shall be substantially in the form stated in Schedule B annexed. As already remarked, a subpoena to answer was issued and served in this cause instead of a citation, as provided by the Divorce act. P. L. 1907 p. 474 §11. That provision is that upon the filing of the petition a citation shall issue, and by the amendment of 1916 (P. L. p. 110) it is provided that every such citation shall be served (together with a copy of the petition) at least five days before its return; and that the form of the citation shall be substantially as is therein provided.

The form of subpoena, after reciting the filing of the bill, proceeds:

“Therefore we command you, if you intend to make a defense, that you file an answer to said bill in the office of the clerk of our said court at Trenton, on or before the expiration of twenty days from and after the day of [return day] , and in default thereof such order or decree will be made against you as the court shall think equitable and just.”

A citation is directed to the defendant, and the form proceeds :

“You are hereby cited to answer the petition of , a copy of which petition is herewith served upon you, by filing your answer in writing in the office of the clerk of the court of chancery at Trenton, within twenty days from the day of , 19 [return day], and in default of your so doing such order, or decree will be made against you as the court shall think equitable and just.”

Thus it appears that a subpoena- to answer and a citation for the same purpose out of chancery, so far as they are process for the appearance of defendants, are convertible terms, or practically so. The definition of both writs confirms this. In 1 Born. L. Die. (Bowie’s rev.) 826, defining a citation, it is said:

“It is usually the original process in any proceeding where used, and is in that respect analogous to the writ of capias or summons at law, and the subpoena in chancery.”

And in 2 Ibid. 1055, defining subpoena, it is said:

“The writ of subpoena was originally a process in the courts of common law to enforce the attendance of a witness to give evidence; but this writ was used in the court of chancery for the same purpose as a citation in the courts of civil and canon law, to compel the appearance of a defendant, and to oblige him to answer upon oath the allegations of the plaintiff.”

The forms of these writs are substantially, though not literally, the same, each is directed to be served at least five days before its return, grants the defendant twenty days within which to answer, and warns him that in default thereof such order or decree will be made against him as the court shall think equitable and just. Both are process, and process is the means of compelling a defendant to appear in court. It need not necessarily be a subpoena or other writ, it may be an order or notice. In re Martin, 86 N. J. Eq. 265, 273.

In Pierce v. Old Dominion Smelting Co., 67 N. J. Eq. 399, Yice-Chancellor Stevenson observed (at p. 110), that every state has power to prescribe the reasonable notice which shall be given in order to subject a defendant to the jurisdiction of its courts, and that it is of no consequence what the form of the notice may be, citing authorities. Process has been defined to be a writ, warrant, subpeena or other formal writing issued by authority of law. 2 Bouv. L. Die. (Bawle’s rev.) 766. In Ewald v. Ortynsky, 77 N. J. Eq. 76, Vice-Chancellor Garrison held that the subpcena in equity is a mere notice. This decision was affirmed (S. C., 78 N. J. Eq. 527) in an opinion which did not discuss the point just adverted to. Chief-Baron Gilbert said that this process is only, notice. 1 Hoffm. Ch. Pr. 104 note 2. It is nothing more than a notice from the court to appear. Ibid. 118, note.

I conclude, therefore, that a citation issued upon a bill, or a subpcena issued upon a petition, is lawful process, that is, notices, proper service of which, upon the defendant, clothes the court with jurisdiction to hear and determine the cause. I do not say that if the defendant should come in promptly and object to the form of the writ issued against him he might not have it quashed or set aside when a new writ would issue. In Crowell v. Botsford, 16 N. J. Eq. 458, Chancellor Green held that if objection to a subpcena for irregularity be promptly brought to the notice of the court, the subpcena will be set aside on notice; but that where a party seeks to set aside the proceeding of his adversary for an irregularity which is merely technical (issuing of subpoena in that case before bill filed), he must make his application for that purpose at the first opportunity; that if a solicitor, after notice of an irregularity, takes any step in the cause, or lies by and suffers his adversary to proceed therein under a belief that his proceedings are regular, the court will not interfere to correct the irregularity if it is merely technical. See, also, Berenbroick v. Hoffstetter, 93 N. J. Eq. 543, in which I followed and applied Crowell v. Botsford, holding, further, that unless defendant came in promptly and moved to set aside a subpoena issued before bill filed, the cause might proceed regularly if the bill be filed before the return day named in the writ. On the other hand, I incline to think that on objection to the irregularity of a writ of subpoena or citation, it might be amended instead of quashed, or dismissed as Chancellor Green put it. The provision for amendment in the Divorce act (P. L. 1907 p. 474 § 19) is that no proceedings under it shall be set aside for any defect in matter of form, or for any mistake or omission not affecting the real merits of the cause, and permits amendment of those proceedings. It will be observed that the provision does not restrict amendment to pleadings, and it has been held to extend to the process of citation. Owens v. Owens, 66 Atl. Rep. 929.

The result reached is, that the defendant is properly in court by adverse proceedings under the Divorce act, and that an order of reference will be made to a vice-chancellor to try the issue joined on the petition and answer.


text:
    The State of New Jersey, defendant in error, v. Salvatore Merra and Salvatore Ranelli, alias Solly Piccoli, plaintiffs in error.
    [Decided September 30th, 1926.]
    1. Before the passage of the act of 1878 (P. L. p. 80), whenever application was made to the chancellor for a writ of error out of the supreme court in a capital case, he required notice to be given to the prosecutor of the pleas, and after solemn argument sometimes the application was refused and the culprit was executed without any review. Since the passage of the act of 1878 the practice of causing notice to be served upon the prosecutor has fallen into disuse because if the writ of grace out of the supreme court be refused, the state prevails as it might on argument, and the convict cannot be harmfully aggrieved because he then has the writ of right out of the court of errors and appeals, where the state, being defendant in error, is fully heard on review of the judgment.
    2. Although the applications for such writs concern proceedings in the court of errors and appeals, and are befox’e the chancellor as a statutory magistrate or agent, and are not in the court of chancery, they are, nevertheless, entitled and filed in chancery by virtue of the act of 1915 (P. L. p. $8), which provides that all proceedings before the chancellor or a vice-chancellor not being in the court of chancery, shall, nevex'theless, be entitled in that court and filed with the clex-k thereof, and shall be records of his office, &c.

      3. A party can have but one attorney of record, who may be an individual practitioner or a firm of lawyers, although he may have several counsel.
    On application to the chancellor for writ of error under P. L. p. 1795j Pat. L. p. 162.

      Mr. Felix Forlema, for the applicants.
   Walker, Chancellor.

This is an application for a writ of error in behalf of the defendants, who were convicted of murder in the first degTee in the Essex ot^er and terminer, Merra without recommendation to life imprisonment, and, consequently, he has been sentenced to death; Ranelli, alias Piccoli, was recommended for life imprisonment, and he, consequently, has been sentenced to imprisonment for life. Although not sentenced to death, the case of Ranelli, or Piccoli, is a capital case, in which the death penalty may yet (in ease of conviction on a retrial without recommendation) be inflicted. State v. Giberson, 94. N. J. Eq. 25.

The act of 1878 (P. L. p. 80) provides that writs of error in criminal cases punishable with death should be writs of right instead of writs of grace, by omitting the provision for the chancellor’s order, and expressly provides that such writs should issue, of course, out of the court of errors and appeals. Notwithstanding this act, applications have ever since been made to the chancellor in the first instance (as explained in the Giberson Case, supra, and Kohl Case, infra), and if he refuses to order the writ as of grace out of the supreme court, the convict may then sue out such writ from the court of errors and appeals as one of right. Kohl v. State, 59 N. J. L. 195.

Eefore the passage of the act of 1878, whenever application was made to the chancellor for a writ of error out of the supreme court in a capital case, he required notice to be given to the prosecutor of the pleas, who often appeared before him with the attorney-general, on behalf of the state, and after- solemn argument, sometimes the application was refused and the culprit was executed without any review. Since the passage of the act of 1878 the practice of causing notice to be served upon the prosecutor has fallen into disuse, because, if the writ of grace out of the supreme court be refused, the state prevails as it might on argument, and the convict cannot be harmfully aggrieved because he has the writ of right out of the court of errors and appeals, where the state, being defendant in error, is fully heard on review of the judgment.

It has been the practice with my predecessors to grant a writ of error to the supreme court only where, on the ex parte application for the writ on behalf of the prisoner, it seemed that the errors complained of were so substantial that the chancellor would, under the old practice, have sent the case to the supreme court; but where, on such application and cursory review by him, the chancellor was of opinion that the errors did not present a fairly arguable case, he denied the writ. The practice has been mine, and, the case at bar falling within the latter class, in my opinion the writ of grace should be denied, which will permit the prisoners to sue out the writ from the court of errors and appeals, as a writ of right.

Although this matter concerns a proceeding in the court of errors and appeals, and is before the chancellor as a statutory magistrate or agent, and is not in the court of chancery, it is, nevertheless, entitled and filed in chancery, by virtue of the act of 1915 (P. L. p. 28), which provides that all proceedings before the chancellor or a vice-chancellor, not being proceedings in the court of chancery itself shall, nevertheless, be entitled in the court of chancery and filed with the clerk thereof, and shall be records of his office. See State v. Giberson, supra (at p. 26). Let a certificate be made denying the writ of error to the supreme court, which shall be filed with the clerk in chancery. The attorney of the defendants may take a copy of it, certified by the clerk, to the secretary of state, the ex officio clerk of the court of errors and appeals, to the end that a writ of error be issued out of that tribunal in this case.

The attorney for the plaintiffs in error has endorsed upon the writ as an additional attorney, the name of.the counsel associated with him for the convicts. This is irregular. A party can have but one attorney of record, who may be an individual practitioner or a firm of lawyers, although he may have several counsel. See In re Stewart, 85 Nr J. Eq. 3. The counsel's name will be stricken out.


author: Leaming, V. C.

text:
    Hunt's Theatres, Incorporated, a corporation of the State of Delaware, complainant, v. William Shender and Abe Konowich, defendants.
    [Submitted May 3d, 1926.
    Determined May 7th, 1926.]
    1. In a vendor’s suit for specific performance of a contract for the sale of land and restraint of an action at law by the vendee for the deposit money, the effect of an extension of time for settlement upon a clause in the contract making time the essence of the contract, considered but not finally determined.
    2. The practice in Levy v. Lindo,- S Mer. 81, followed in awarding restraint against the action at law to preserve the subject-matter of the controversy until the question of waiver of the time-essence clause of the contract could be determined at final hearing.
    On bill for specific performance and restraint. On hearing on return of order to show cause.

      Mr. S. Rusting Leap, for the complainant.

      Mr. Oarl Kisselman, for the defendants.’
   Leaming, V. C.

The bill filed herein is by a vendor against a vendee to enforce specific performance of a contract for the sale of land and to procure restraint against a pending action at law in which the vendee seeks to recover from the vendor the money paid on account of the purchase price at the time the contract was executed. Hearing has been had on the bill and affidadavits annexed to it and answering affidavits filed by defendant at the return of an order to show cause for restraint.

The affidavits are meagre and fail to disclose circumstances which might be controlling. The written contract provides for settlement January 10th, 1926, and'also contains a clause providing “time is the essence of this contract.” On or about January 1st, 1926, the vendee stated to complainant that he could not procure the necessary money for settlement on the day named in the contract for that purpose, and requested an extension to March 1st, 1926. On March 1st the vendee notified complainant that he would be ready to settle on March 4th. On March 4th the parties met for settlement. Settlement was not then made, because a settlement certificate which the vendee had procured and then presented disclosed an outstanding dower right in favor of one Dora Denizot, and also referred to an outstanding option of lease on one of the stores on the premises. Touching these outstanding claims, the affidavit of the president of complainant company states as follows: “Upon the presentation of the settlement sheet or settlement certificate, as aforesaid, I immediately procured, in favor of the company, a release of dower of said Dora Denizot.” * * * “There are no outstanding tenancies.” On March 5th the vendee demanded the return of the money which had been paid, and on March 18th brought suit for the amount.

It will be observed that while by a formal clause of the contract time was declared to be of its essence, and the time for settlement was specified for January 10th, that date was twice postponed at the instance of the vendee. With postponements the essential element of a settlement on the date named in the original contract was necessarily removed, since by the postponements a settlement on the original contract date was made unessential. Whether with a waiver of original stipulation at the vendee’s request there arose an implied stipulation of the parties that the failure of the vendor to make settlement on'the postponed day should terminate his contractual rights, in the absence of an express stipulation to that effect, may well be doubted; but, in any event, the determination of such an implied stipulation would appropriately be based upon evidence of circumstances which may be said to be too inadequately disclosed by the defensive record herein to entitle the vendee to proceed with-a suit at law which will be operative to leave complainant without remedy at final hearing, at which hearing the controlling equities of the case may be accurately ascertained. In this view the defensive affidavits must be deemed inadequate as denials of the essential facts on which complainant bases equitable relief, and especially so to prevent restraint which is necessary to preserve the subject-matter of the controversy. In somewhat similar circumstances it was held by the lord chancellor (Eldon) in Levy v. Lindo, 3 Meriv. 81, that the question whether time was originally the essence of the contract, and whether, if it were, the defendant has done any act whereby he has waived it as a ground of objection to the performance, are questions depending on evidence, and not to be decided except upon the final hearing, in a suit for specific performance and restraint against a pending action at law to recover the deposit; that in such circumstances the restraint should be retained until final hearing.

An injunction will be advised pursuant to the prayer of the bill conditioned upon complainant’s complying with the requirements of rule of court number 205.


text:
    Robinson F. Willis, petitioner, v. Blanche B. Willis, defendant.
    [Submitted May 5th, 1926.
    Determined May 25th, 1926.]
    1. Smith v. Smith, 55 N. J. Eq. 222, and Oertel v. Oertel, 92 N. J. Eq. 327, held decisive in this court, to the effect that a maintenance decree in favor of a wife against her husband entered pursuant to section 26 of the Divorce act is conclusive between the parties of the fact of desertion by the husband at the time named in the maintenance decree, and free from collateral impeachment except for fraud or want of jurisdiction of the subject-matter of the controversy or the parties.
    2. Over four years after the entry of a maintenance decree in favor of a wife against her husband pursuant to section 26 of the Divorce act the husband brought suit for divorce for desertion of the wife. Meld, that Smith v. Smith and Oeriel v. Oertel were decisive in this court, to the effect that at the end of two years from the time of desertion named in the maintenance decree a cause of action for divorce for desertion matured in favor of the wife and was operative as a bar to the husband’s suit in the absence of evidence that during that period the husband had sought reconciliation.
    3. Oertel v. Oertel held decisive in this court to the effect that a maintenance decree entered by consent is conclusive between the parties to the same extent as a decree in invitum.

    On final hearing on petition for divorce.

      •M'éssrs. Wescott/é Weaver, for the petitionér.

      Mr. Peter Baches; for the defendant.
   Leaming, V. C.

In this suit petitioner seeks a decree of divorce on the ground of his wife’s desertion.

The petition was filed in November, 1924, and prior to its amendment,.' made near the conclusion of the hearing, charged desertion as of June, 1922.

The evidence disclosed that the parties have been continuously separated since the year 1914, and that in the years 1921 and 1922 petitioner sought his wife’s return to him, and she refused.

But the evidence also disclosed that in the year 1916 the wife, defendant herein, had filed a bill against her husband, petitioner herein, for maintenance under section 26 of the Divorce act; that after issue joined that cause came on for final hearing, and a final decree was entered in the wife’s favor. That decree awarded to her the custody of the child of the marriage and required her husband to pay to her $25 per week for maintenance. That decree is dated January 23d, 1917, and is still in full force and effect, and has been complied with by the husband to this time.

At the close of the hearing in the present suit no evidence had been adduced disclosing any effort on the part of the husband to induce his wife to return to him between the date of the maintenance decree (January 23d, 1917) and the year 1921. This raised the question whether, by reason of the adjudication in the maintenance decree to the effect that the husband was then a deserter of his wife, and the absence of evidence disclosing changed conditions during the succeeding two years, a cause of action for divorce had not matured in favor of the wife at the end of that two years’ period. If so, obviously, she could not be declared a deserter by reason of her subsequent refusal in 1921 and 1922 to live with her husband.

Accordingly, petitioner herein was permitted to introduce testimony at a subsequent hearing to meet that situation. Permission was also given for the amendment of the petition, to the end that it might charge the .desertion of defendant as of an earlier date.

I am convinced that the testimony subsequently adduced, considered in connection with that theretofore taken, does not justify a finding of fact, to the effect that- petitioner at any time during a period of over four years from the date of the maintenance decree made any .reasonable- attempt to terminate' the separation or to procure his wife’s return -to him; nor does the evidence justify the conclusion that during that period an appropriate effort of that nature would have been futile. Aside from the uncorroborated testimony of petitioner to the effect that he sought his wife’s return during the two years’ period referred to, which claim, in turn, was denied by her, the only material testimony was of declarations made by her to the effect that she would not live with her husband. Declarations of that nature cannot safely be accepted as the basis of a conclusion that, if properly approached by her husband, a wife would not return to him; such declarations, at most, disclose a state of mind at the moment. Accepting the maintenance decree as conclusive, to the effect that the husband had without justifiable cause deserted his wife, his desertion could not be made hers without appropriate efforts on his part to effect a reconciliation. She denies having made the declarations attributed to her.

Accordingly, the single question for determination at this time is the effect of the maintenance decree.

That question cannot be considered as open for review in this court. In Smith v. Smith, 55 N. J. Eq. 222, Vice-Chancellor Pitney specifically held a maintenance decree to be conclusive evidence of desertion on the day specified in the decree. In the subsequent case of Oertel v. Oertel, 92 N. J. Eq. 327, Vice Chancellor Backes reached the same conclusion.

In Smith v. Smith, supra, the final decree for maintenance set forth a specific date on which the husband abandoned and separated himself from his wife without justifiable cause. The decree was held conclusive of desertion on that date, and testimony was permitted only of subsequent efforts of the husband to terminate the separation. The decree of maintenance presently under consideration, after reciting that the cause came on to be heard on bill, answer, replication and oral proofs taken in open court and the marriage of the parties, and jurisdiction by service of process, proceeds to make the following finding of fact: “That the defendant, without any justifiable cause, abandons the complainant, and separates himself from her, and refuses and neglects to maintain and provide for her and the child of their marriage.” As a formal adjudication between the present litigants that decree, consistently with the authorities referred to, can only be considered as conclusive as of that date, and free from collateral impeachment, except for fraud or want of jurisdiction of the subject-matter of the controversy or the parties. Crawford v. Lees, 84 N. J. Eq. 324. Accordingly, the burden of establishing subsequent change in the conditions thus judicially determined must be deemed to rest upon petitioner herein.

It should be noted that on the back or cover sheet of the maintenance decree this endorsement appears: “I hereby consent to the entry of the filing of the within decree. S. Rusling Leap, Solicitor of Defendant.” If this endorsement should be given the force to render the decree a consent decree as distinguished from a decree in invitum, it raises the additional question as-to the extent to which a consent decree should be considered conclusive, since authorities are to be found to the effect that a consent decree is not strictly a judicial decree, but is rather in the nature of a contract entered into with the solemn sanction of the court.

But the question is not open for further consideration in this court, since in Oertel v. Oertel, supra, the maintenance decree there declared conclusive as to the desertion is specifically referred to as a consent decree made on an issue which was not tried.

A decree will be advised dismissing the petition.