author: Leaming, V. C.

text:
    The State, ex rel. The Board of Health of the State of New Jersey, v. Borough of Vineland.
    [Decided November 13th, 1906.]
    1. The principle upon which subsequent legislation will operate to repeal prior legislation, without an express repealing clause, is, that where there are two- acts on the same subject effect will be given to both, if possible. If the two acts are repugnant in any of their provisions, the later act operates to repeal the earlier to the extent of the repugnancy. Where two acts are not in express terms repugnant, if the later act covers the whole subject of the earlier act, and embraces new provisions, plainly showing that it was intended as a substitute for the earlier act, It will operate to repeal that act.

      2. The provisions of chapter 41 of the laws of 1899 (P. L. 1899 p. 73), authorizing the state board of health to enjoin the pollution of potable waters, held to be repugnant to and repealed by chapter 72 of the laws of 1900 (P. L. 1900 p. 113) in cases where the alleged pollution occurs by reason of the operation of a municipal sewer plant constructed and operated under and pursuant to the directions of the state sewerage commission appointed under the latter act.
    3. Semble, chapter 41 of the laws of 1899 (P, L. 1899 p. 73) is wholly repealed by chapter 72 of the laws of 1900 (P. L. 1900 p. 113).

    On final hearing on bill, answer, replication and proofs.

      Mr. Robert H. McCarter, attorney-general, for the complainant.

      Mr. Herbert C. Bartlett, for the defendant.
   Leaming, V. C.

The bill in this cause is filed by the attorney-general at the relation of the state board of health, under the provisions of chapter 41 of the laws of 1899 (P. L. 1899 p. 73), to restrain the borough of Vineland from discharging the effluent of the filtration beds of its municipal sewer system into the waters of Tarkiln branch, a tributary of Maurice river.

It is contended upon the part of defendant that the provisions of the act referred to are repealed by subsequent legislation. As the jurisdiction of this court in this case is dependent upon the provisions of that act, which by its terms confers upon this court a special statutory jurisdiction in this class of cases (State, ex rel. Board of Health of New Jersey, v. Diamond Paper Mills, 63 N. J. Eq. (18 Dick.) 111; S. C. on appeal, 64 N. J. Eq. (19 Dick.) 793), it is manifest that if subsequent legislation has operated to effect a repeal of the act in question the bill in thié cause must be dismissed.

The principle upon which subsequent legislation will operate to repeal prior legislation without an express repealing clause has been frequently considered by the courts of this state and is well defined. Where there are two acts on the same subject, the rule is to give effect to both, if possible. If the two acts are repugnant in any of their provisions, the later act operates to repeal the earlier to the extent of the repugnancy. Where two acts are not in express terms repugnant, if the later act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the earlier act, it will operate as a repeal of that act. McNeely v. Woodruff, 13 N. J. Law (1 Gr.) 352, 356; Naylor v. Field, 29 N. J. Law (5 Dutch.) 287; McGavisk v. State, Morris and Essex Railroad Co., 34 N. J. Law (6 Vr.) 509, 511; Industrial School District v. Whitehead, 13 N. J. Eq. (2 Beas.) 290; Ruckham v. Ransom, 35 N. J. Law (6 Vr.) 565; Morris and Essex Railroad Co. v. Commissioner of Railroad Taxation, 37 N. J. Law (8 Vr.) 228, 230; S. C., 38 N. J. Law (9 Vr.) 472; State v. Chambersburg, 37 N. J. Law (8 Vr.) 258, 260; Landis v. Landis, 39 N. J. Law (10 Vr.) 274, 277; State, North Ward National Bank, v. Newark, 39 N. J. Law (10 Vr.) 380, 391; Roche v. Jersey City, 40 N. J. Law (11 Vr.) 257, 259; Mulligan v. Cavanagh, 46 N. J. Law (17 Vr.) 45, 49; Bowyer v. Camden, 50 N. J. Law (21 Vr.) 87; Haynes v. Cape May, 52 N. J. Law (23 Vr.) 181; DeGinther v. New Jersey Home, 58 N. J. Law (29 Vr.) 354, 357; Anderson v. Camden, 58 N. J. Law (29 Vr.) 515, 521; Camden v. Varney, 63 N. J. Law (34 Vr.) 325, 329; Bracken v. Smith, 39 N. J. Eq. (12 Stew.) 169, 171; Mersereau v. Mersereau, 51 N. J. Eq. (6 Dick.) 382, 385; Hotel Registry Corporation v. Stafford, 70 N. J. Law (41 Vr.) 528, 537.

The act under which this proceeding is brought is entitled “An act to secure the purity of public supplies of potable waters in this state,” and was approved March 17th, 1899. The first section of this act forbids any sewage or other polluting matter, which will corrupt or impair or tend to corrupt or impair the quality of the water into which it is discharged, or which will render or tend to render such waters injurious to health, to be placed or discharged into any stream or tributary or branch thereof, from which is taken, or may be taken, any public supply of water for domestic use in any municipality, above the point from which any such municipality shall or may oblain-its supply of water for domestic use. A proviso exempts from the operation of the act any municipality which, at the elate of the passage of the act, has a public sewer system, legally constructed under public authority, discharging its sewage into any such stream. A penalty of $100 is provided for each violation of the provisions of the act, and each week’s continuance, after notice by the state or local board of health to abate or remove, is made a separate offence. The second section of the act provides a summary proceeding for the recovery of the penalties in an action by either the state board of health or the local board. The third section gives to the state board of health the general supervision, with reference to their purity, of all rivers, brooks, streams, &c., the waters of which are or may be used as the source of public supplies for domestic use. The fourth section provides that, instead of proceeding to recover the penalty named in the first section, the state board of health may, through the attorney-general, at its relation, file a bill in chancery to enjoin the violation of the provisions of the first section of the act.

At the same session of the legislature an act was passed entitled “An act to prevent the pollution of the waters of this state by the establishment of a state sewerage commission, and authorizing the creation of sewerage districts and district sewerage boards, and prescribing, defining and regulating the powers and duties of such commission and such boards.” P. L. 1899 p. 586. This act was approved March 24th, 1899. This latter act was amended in 1900 (P. L. 1900 p. 113) by a re-enactment of the entire act with some minor changes and several important additions. The amendatory act defines the full scope of purpose of the legislature, and any legislative intention to supersede and annul the operation of the act of March 17th, 1899, will be found in this amendatory act. This act retains the state sewerage commission created by and appointed under the act of March 24th, 1899, and increases the salary of its members and removes the limitation upon the annual appropriation to cover the expenditures of the commission. It makes it the duty of the state sewerage commission to investigate the various methods of sewage disposal to enable it to make proper recommendations and to investigate all complaints of pollution of waters which shall be brought to its notice, and if the commission find that any of the waters of the state are being polluted to the injury of any inhabitants of this state, either in their health, comfort or property, it is made its duty to give notice to the person or municipality so polluting the waters to cease within a time to be fixed by the commission not exceeding five years, and to make, within the time fixed, such disposition of the sewage or other polluting matter as shall be approved by the commission, and any failure to obey such finding of the commission is made unlawful. Any person or municipality aggrieved by the finding of the commission is given an appeal to the court of chancery, which court is empowered by the act to affirm the finding of the commission or to reverse or modify such finding in whole or in part. The act makes it unlawful for any person or municipality to build any sewer or drain from which it is designed that any sewage or other harmful matter, solid or liquid, shall flow into any of the waters of this state so as to pollute or render impure said waters, except under such conditions as shall be approved by the commission, and makes it unlawful for any person or municipality to build or operate any plant for the treatment of sewage or other polluting substance, from which the effluent is to flow into any of the waters of this state, except under such conditions as shall be approved by the commission to whom any new plans must be submitted before building. The act further provides that the commission may apply to the court of chancery for an injunction to prevent the violation of the provisions of the act, and it is made the duty of the court of chancery to restrain violations in such cases. The act also makes elaborate provisions for the formation of sewerage districts embracing two or more municipalities for the establishment of sewerage systems, which may include the scientific treatment of sewage and sewage matters and the effluent thereof, the initiatory proceeding being a petition to the commission, followed by a public hearing and a final order of the commission creating the district and defining its boundaries. Such sewerage districts, after the election and organization of their officers, are made bodies corporate, with power to sue and be sued, purchase and condemn property and issue bonds and to construct and operate sewerage systems within the created districts, but at all times under the supervision and control of the state sewerage commission. The waters of this state, as defined by the act, do not include the ocean or any waters separating this state from any other, unless such waters are used for potable purposes.

This summary of the provisions of the two acts is deemed to be complete enough to disclose their relative scope and purpose. It will be seen that the purpose of the latter act, as is stated in its title, is to prevent the pollution of the waters of this state by the establishment of a state sewerage commission, and authorizing the creation of sewerage districts and district sewerage boards. With the primary aim to prevent the pollution of the waters of this state the act appears to have adopted, or undertaken the adoption of, a complete and self-sufficient scheme to the accomplishment of that end. In the purposed accomplishment of that end the provisions of the act seem to cover the entire scope and operation of the earlier act. A state sewerage commission is created with broad and comprehensive powers and duties which appear to be not only appropriate but ample to meet and eradicate all conditions which may occasion water pollution within the state. The earlier act is not operative against municipalities with sewer systems which existed at the date of the passage of the act; the later act includes not only a means for their correction, but also a complete means for the prevention of future contamination, existing evils being corrected through the means provided in section 5 of the act, and new pollutions being prevented by the provisions of sections 6, 7 and S. The waters brought under the protection of the later act include all the waters within the contemplation of the earlier act and other waters as well, the earlier act being limited to potable waters. A special statutory jurisdiction is given to this court by the later act to prevent by injunction all violations of the act; this provision is essentially the same as a corresponding provision in the earlier act. The only feature I find in the earlier act which may be said to be in any sense broader than the later act is that the former act forbids pollution (except as to municipalities with sewer systems already constructed) in any event and irrespective of whether or not injury is sustained, whereas the later act guards against pollutions by giving to the state sewerage commission supervision and control of the methods of construction and operation of all works and permitting no works to be constructed or operated except under such conditions as shall be approved by the commission, thereby ■ leaving the possibility that the commission may, through error of judgment, permit the operation of imperfect works. This difference in the two acts would seem to be the basis of the present litigation, for by the proofs it appears that the works of defendant municipality were constructed and are being operated pursuant to the consent and approval of the state sewerage commission, and complainant’s contention is that notwithstanding that fact potable waters are being polluted through the operation of these works. It appears manifest, however, that in the enactment of the amended sewerage act now under consideration the legislature intended to bestow upon the state sewerage commission the power and duty to fully supervise and control the entire subject of pollution of public waters occasioned by the discharge of sewage, drainage or other polluting matter into such waters and the power and duty to prevent such pollution, and this manifest legislative purpose clearly negatives any possible legislative intent to preserve to the state board of health the right to enjoin the operation of works which have been constructed and are being operated pursuant to the consent and directions of the state sewerage commission. Any conception that the legislature intended to preserve to the state board of health the powers contended for includes the assumption that the state sewerage commission would fail in the performance of the duties imposed upon it, and is not to be entertained. It necessarily follows that the provisions of the earlier act, in so far as they may seem to authorize the state board of health to maintain an action of the nature of the present one against a municipality operating a sewage disposal plant which has been constructed and is being operated pursuant to the consent and directions of the state sewerage commission, are repugnant to the provisions of the earlier act, and, in consequence, repealed to that extent at least. More than this it is unnecessary for me to decide in this case, but I entertain the view that the legislative intent was to adopt an. entirely new system for the protection of the public waters of the state and to substitute the provisions of the new act for those of the old originally designed for the same purpose, and that the later act operates to repeal the earlier act in its entirety.

The conclusion I have reached renders a discussion of the testimony unnecessary. I may say, however, that the testimony (which was taken before my predecessor in office and transcribed for my use) does not lead me to the conclusion that the fact is satisfactorily established in this cause that the' effluent of defendant’s works corrupts or impairs or tends to corrupt or impair the waters into which it is discharged. The testimony touching this disputed fact is almost wholly that of chemists and bacteriologists. It appears to be accepted as a scientific fact that pathogenic organisms, like typhoid germs, cannot be estimated, but that the recognized method of ascertaining whether or not any pathogenic organisms exist in water is to ascertain by certain recognized bacteriological tests the presence or absence of bacillus coli communis. If coli are found to exist in considerable numbers the conditions are believed to be conducive to the propagation of pathogenic organisms. The coli are, in themselves, harmless, and the number that may safely exist in water is not entirely certain; one thousand coli to the cubic centimeter is believed to disclose a dangerous condition of the water. The testimony in behalf of complainant is that of Dr. Baymond B. Fitz-Bandolph, a chemist and bacteriologist, who made chemical analyses of water taken from the effluent February 20th, 1905, April 24th, 1905, and November, 1905, and a chemical analysis and bacteriological examination of water taken from the effluent January 21st, 1906. This witness pronounces the effluent impure and claims to have discovered the presence of coli in a dangerous degree in the bacteriological examination made of the water taken January 21st, 1906. Four scientific experts who have made numerous examinations of the effluent— some chemical and some bacteriological—testified in behalf of the defence in opposition to the testimony of Dr. Fitz-Bandolph. Some of these witnesses have given a great amount of time to the examination of the effluent at various periods and to personal examinations of the operation of the works. These witnesses entertain the view that the waters flowing from the filtration beds are pure and do not contaminate or tend to contaminate the waters of Tarkiln branch into which they flow. In view of the testimony in behalf of defendant, I do not think that a conclusion conld be justified to the effect that defendant is violating either the letter or spirit of the statute under which this cause is brought. It is admitted that the effluent has a disagreeable odor. This odor is explained to exist by reason of suspended but harmless gases which disappear when the effluent is discharged. The testimony also discloses that the filtration' works of defendant municipality are constructed and operated under the most approved modern system, and a perusal of the testimony goes far to satisfy me that if the works in question fall short of accomplishing a degree of purification which will permit their operation under the terms of the earlier act there is little hope of any sewer filtration works being' successfully operated if that act should be held to be still operative. I make this appended suggestion by reason of the fact that section 12 of the Sewerage Commission act of 1900 contemplates the operation of sewage disposal works for the scientific treatment of sewage matter and the effluent thereof. I will advise a decree dismissing the bill, with costs.


source: Caselaw Access Project

author: Leaming, Y. C.

license: Public Domain

text:
    Defiance Fruit Company v. Thomas C. Fox.
    [Decided November 22d, 1906.]
    1. The bill averred that defendant maintained a mill-dam which caused backwater to overflow complainant’s cranberry bogs. The answer denied that the dam occasioned the overflow of complainant’s land and also set up a prescriptive right to maintain the dam as it was.—Held, that the court of chancery is without jurisdiction to try these issues.

      2. The bill is retained to enable complainant to establish its right at law because the answer failed to deny the jurisdiction of the court, and the bill sought mandatory relief which could be appropriately granted after complainant’s right at law should be established.
    On bill for injunction.
    The bill in this cause is filed to procure an injunction to restrain defendant from backing water, by means of a dam, upon complainant’s lands, and to compel defendant to remove the dam. The bill alleges that complainant is the owner of land on either side of an ancient water course called “Scotland Branch.” That complainant’s land, adjacent to the water course, is in use as a cultivated cranberry bog which requires the use of the stream in its natural condition for drainage. That defendant has for a great many years maintained a dam across the water course at a point below complainant’s land for the purpose of obtaining water power with which to operate his mill, and has recently raised the level of the pond formed by the same so that the water backs up and overflows complainant’s land and cranberry bogs causing complainant irreparable injury, and that defendant threatens to raise the water even higher.
    The answer denies any knowledge as to complainant’s ownership of the land in question, and denies that defendant has at any time raised the level of the water so that it backs up to complainant’s land or injures it or the cranberry bogs, and denies any threats or intention upon defendant’s part to raise the water higher, and avers that any excess of water at complainant’s land is caused by improper'discharge of water from a mill-dam on the same stream above complainant’s land and also by clogging of the channel of the stream at and below complainant’s lands. The answer further avers that the dam of defendant and the waters held by the dam have been maintained by defendant as they now are for more than twenty years continuously next preceding the filing of the bill.

      Mr. George J. Bergen and Mr. John W. Wescolt, for the complainant.

      Mr. Henry 8. Alvord, fox the defendant.
   Leaming, Y. C.

This cause coming on for final hearing I have, on my own motion, declined to proceed further until complainant shall have established his rights at law.

It is, in this state, well settled that this court will not adjudicate controversies of this class unless defendant’s misconduct shall be ¿dmitted or shall have been established at law against him. The present case is essentially similar to Outcalt v. George W. Helme Co., 42 N. J. Eq. (15 Stew.) 665. The complainant’s right to relief is not admitted, and cannot be made clear until the defendant’s averments are overthrown, and there is in this case no other circumstance to warrant the interposition of a court of equity before the right is established at law. Complainant relies upon Carlisle v. Cooper, 21 N. J. Eq. (6 C. E. Gr.) 576. In that case the legal right of complainant was admitted, and the object of the bill was to ascertain the extent of the right and to protect it in a manner not attainable by legal procedure.

There is in the present case, however, one element of which this court may take cognizance. I refer to the allegation of the bill that defendant has threatened to raise the water higher than it now is or has been. The answer denies such threat and disclaims such purpose, and makes no claim of right to raise the water higher than its present level. The issues as presented may be said to admit the right of complainant to protection against a higher level of the water. If, therefore, complainant desires to proceed to establish the fact that defendant threatened and at the date of the filing of the bill intended to raise the level of the water to the injury of complainant the cause may proceed to hearing at once on that issue alone, otherwise the cause will be held in its present condition until complainant shall have had a reasonable time to establish its right at law.

I shall hold the cause and not dismiss the bill for the reason that the answer in no way denies the jurisdiction of this court as to the matters in which I hold this court is without jurisdiction, and also because one object of the bill is to secure affirmative relief to remove the obstruction, a relief which can be appropriately adjusted in this cause should complainant succeed in the establishment of its right at law. See Todd v. Staats, 60 N. J. Eq. (15 Dick.) 507.


author: Leaking, V. C.

text:
    Amy A. Van Dyke v. Frederick A. Van Dyke et al.
    [Decided November 26th, 1906.]
    1. A bill may be filed in the chancery court for the recovery of a legacy or distributive share, either before or after a settlement in the orphans court.
    2. An action at law to recover a distributive share of an estate is purely statutory, and can be maintained only after a decree of distribution.
    3. The action at law to recover a distributive share of an estate given by statute is a remedy in addition to that existing in equity, and in no way limits or qualifies the jurisdiction of the chancery court.
    4. A bill by 'one who- is next of kin against an administrator and the sureties on his bond, specifically praying for an ascertainment of complainant’s distributive share, justifies a decree for the payment of the amount, when ascertained, under the prayer for general relief, and the bill is not defective because of the absence of a specific prayer for payment.
    5. A bill by an heir as next of kin against the administrator to determine the amount of her distributive share, alleged fraud in the accounts filed in the orphans court, and sought, by specific interrogatories, to ascertain information as to certain securities which had come into defendant’s hands, and asked that defendant set forth the several items of assets and disbursements.-—Held, that the fact that the accounts had been settled in the orphans court, and that complainant participated in the settlement, does not exonerate defendant from answering the interrogatories and from setting forth the accounts.
    On motion to strike ont eacb paragraph of the answer, and also the entire answer.

      The bill is filed by Amy A. Van Dyke as one of the next of kin of Sarah E. Buck, deceased, against the administrators of Sarah E. Buck, deceased, and their sureties, to determine the amount of the distributive share of the personal estate of intestate to which complainant is entitled as such next of kin.
    The bill avers that administration has been pending in Atlantic county orphans court since the year 1900; that defendant Frederick A. Van Dyke, one of the administrators, has possessed himself of almost all of the personal estate of intestate to the exclusion of his coadministrator; that the estate could have been easily settled within a year from the decease of intestate, but that the administrator named has wasted and squandered the estate and complainant’s only means to obtain her distributive share is by action on the administrator’s bond, to which action a determination of her share is a prerequisite; that to vex, delay and hinder complainant from the discovery of her share, administrator Frederick A. Van Dyke has filed in the orphans court fraudulent and deceitful statements of receipts and disbursements of moneys, which statements are fraudulently and cunningly devised to make it appear that complainant has no interest. The bill also contains a series of interrogatories touching specified securities, and asks that defendants set forth the several items of assets received, including those from a foreign jurisdiction, together with the items of all disbursements made in both this and the foreign jurisdiction, and prays for a decree determining the amount of complainant’s distributive share and for general relief.
    Defendant Frederick A. Van Dyke has answered, and complainant now moves to strike out each paragraph of the answer on grounds specified in the motion, and also to strike out the answer in its entirety because of the failure of defendant to answer any of the interrogatories of the bill.

      Mr. John J. Crandall, for the complainant.

      Mr. MU II. Chandler, Messrs. Bedle, Edwards & Holmes, and Messrs. Thompson & Cole, for the defendants.
   Leaking, V. C.

The real controversy between the parties arises by reason of the failure of defendant to answer the interrogatories of the bill. Defendant’s answer avers, among other things, that his accounts have been settled in the orphans court and that complainant participated in that settlement. It is now urged on behalf of defendant that this statement of the answer exonerates him from specifically answering the interrogatories of the bill and from setting forth in his answer the accounts sought by complainant.

Motions against answers under rule 213 of this court have heretofore been confined to motions to strike out specific portions of the answer as insufficient, scandalous or impertinent, and have not been entertained to strike out an answer in its entirety. See Wilson v. American Palace Car Co., 63 N. J. Eq. (18 Dick.) 557, and cases there collected. Such motions would also seem to be inadequate to reach an objection that defendant has made no attempt to answer specific interrogatories in a bill. Exceptions to the answer would, I think, more appropriately reach such objections. Fuller v. Knapp, 24 Fed. Rep. 100. But inasmuch as the manifest purpose of the pending motions is to compel defendants to answer touching the matters inquired of in the interrogatories forming part of the bill, and the defendant claims that the adjudication of the orphans court, set forth in the answer, operates as a bar to the right of complainant to compel specific answers, I shall, under the right inherent in this court to control its pleadings, treat the motions as raising the question really in controversy between the parties. ’

The jurisdiction of this court over the accounts of executors and administrators, and to enforce the claims of creditors, legatees and next of kin, is well settled and has been frequently exercised. A bill may be filed for the recovery of a legacy or distributive share either before or after a settlement in the orphans court. An action at law to recover a distributive share of an estate is purely statutory and can be maintained only after a decree of distribution. This statutory remedy is a remedy given in addition to that existing in equity and in no way limits or qualifies the jurisdiction of this court over the subject. Frey v. Demarest, 16 N. J. Eq. (1 C. E. Gr.) 236. The specific prayer of the bill in the present ease is for an ascertainment of complainant’s distributive share. The fact that the bill contains no specific prayer that the amount, when ascertained, be decreed to be paid to complainant, suggests no infirmity in the bill. The sureties of the administrators are made defendants, and a decree ascertaining the distributive share of complainant will fix the extent of their liability and afford the basis of an action on their bond, and the prayer for general relief will justify a decree for the payment of the distributive share.

This court has held that when jurisdiction has been assumed by an orphans court in the settlement of an estate, it is not the right of a next of kin to change the forum of settlement at his pleasure. The chancellor must exercise his discretion and judge as to the propriety of the court of chancery’s interposing, and if any progress has been made in the orphans court in the settlement of the accounts, the court of chancery should not interfere with that tribunal unless there is shown some good cause for doing so, and fraud and mistake in the procurement of a settlement have been held to be the only grounds upon which this court will ordinarily look behind the settlement of an account in the orphans court, and that defects and errors in the account should be remedied in that court. Salter v. Williamson, 2 N. J. Eq. (1 Gr. Ch.) 480; Van Mater v. Sickler, 9 N. J. Eq. (1 Stock.) 483, 485; Clarke v. Johnston, 10 N. J. Eq. (2 Stock.) 287; Voorhees v. Voorhees’ Executor, 18 N. J. Eq. (3 C. E. Gr.) 223, 227; Search’s Administrator v. Search’s Administrators, 27 N. J. Eq. (12 C. E. Gr.) 137, 139; Titus v. Hoagland, 39 N. J. Eq. (12 Stew.) 294, 298; Matthews v. Hoagland, 48 N. J. Eq. (3 Dick.) 455, 491; Weyman v. Thompson, 50 N. J. Eq. (5 Dick.) 8, 22; Bird v. Hawkins, 58 N. J. Eq. (13 Dick.) 229; First National Bank v. Thompson, 61 N. J. Eq. (16 Dick.) 188, 205; Frey v. Demarest, supra. But these equitable principles which guide the exercise of this jurisdiction in no way militate against the property of a next of kin seeking, in this court, an ascertainment of a distributive share, in a proper case, where a decree of distribution has not been made by the orphans court, or in seeking a discovery by defendants touching the existence, character and disposition of certain assets—a beneficial form of relief peculiar to this court and extending to advantageous results not attainable by the orphans court procedure—or in seeking the procurement of a decree for the payment of a distributive share, or in seeking to remove to this court the final settlement of the accounts where fraud and mistake are alleged in the procurement of an adjudication already had in the orphans court. All these remedies are appropriately administered in equity upon the bill of a next of kin showing a reasonable necessity for the interposition of this court for the accomplishment of any of the purposes named.

The bill in this case alleges fraud in the accounts filed in the orphans court. The allegations of fraud are not as specific as is desii able, but as the accounts are peculiarly within the knowledge of defendant an over-rigorous enforcement of the rule requiring charges of fraud to be specific should be guarded against. The bill also seeks, by a series of specific interrogatories, to ascertain information touching certain securities which have come to the hands of defendant in this and in another jurisdiction. These interrogatories cover fields of information peculiarly within the knowledge of defendant and are operative in the domain of equitable procedure to discover important information which could not be reached through any recognized procedure of the orphans court. Answers to these interrogatories and a complete statement of assets received and moneys expended would go far toward aiding this court in determining whether the orphans court settlements shall be here reviewed. In view of these elements of the bill it is entirely clear that the averments of the answer touching the orphans court settlement, and complainant’s participation in it, should not excuse defendant from answering all the material averments and interrogatories of complainant.

It would be inappropriate to at this time determine whether this court will review the proceedings already had in the orphans court. As already stated, the information sought by this bill is peculiarly essential to aid this court in that determination. An order will be advised directing defendant to answer fully all the interrogatories of the bill.

It should not be necessary to state that answers to allegations of a bill should not be evasive, should not be in form, constituting them negative pregnant, and should not, as a rule, be framed to follow the language of the bill. Some of the motions against specific paragraphs of the answer are upon these grounds and are not without merit. 1 Dan. Ch. PI. & Pr. *725, 726. I have limited my considerations to the broader aspect of the controversy, and the views here expressed are deemed sufficient to direct the further progress of the cause. No costs are awarded.


text:
    Millville Gas Light Company v. Vineland Light and Power Company.
    [Decided December 21st, 1906.]
    1. Legislative grants of franchises, whether granted by special charters or under general laws, confer privileges which are exclusive in their nature as against all persons upon whom similar rights have not been conferred. Any attempted exercise of such rights, without legislative sanction, is not only an unwarranted usurpation of power, but operates as a direct invasion of the private property rights of those upon whom the franchises have been so conferred.
    2. A court of equity will enjoin the unlawful invasion of a statute franchise.
    3. The restraining power of a court of equity is exercised for the protection of rights, the existence of which are clearly established, and so far only as may be essential for the protection of those rights.
    4. Public grants are construed strictly, and in all cases of grants of franchises by the public to a private corporation, the established rule of construction is that any ambiguity in the terms of the contract muse operate against the corporation and in favor of the public. The corporation takes nothing that is not clearly given by the act.
    5. The word “town,” as used in legislative acts in New Jersey, has no fixed significance, and its use must be applied according to the manifest legislative intention as gathered from the occasion and necessity of the act.

      6. Injunction denied because o£ want o£ sufficient certainty as to complainant’s rights.
    On order to show cause why a preliminary injunction should not issue.

      Mr. Edwin F. Miller and Messrs. Gaslcill & Gaslcill, for the complainant.

      Mr. Levereti Newcomb and Messrs. French & Richards, for the defendant.
   Leaming, V. C.

The bill in this cause is filed by the Millville Gas Light Company to procure an injunction to restrain the Vineland Light and Power Company from laying gas pipes in certain highways in the township of Landis, Cumberland county. The cause has been submitted, at the return of an order to show cause for a preliminary injunction, upon the bill and its accompanying affidavits on the part of complainant, and upon answering affidavits on the part of defendant. Complainant is a corporation engaged in the business of manufacturing and supplying gas. Its works are located in the city of Millville, and its corporate rights are derived from an act of the legislature of New Jersey, entitled “An act to incorporate the Millville Gas Light Company,” approved March 20th, 1857. Defendant is a corporation engaged in a like business, with its gas works located in the borough of Vineland. The city of Millville is about six miles distant from the borough of Vineland. The territory between these two municipalities is the territory now in dispute, and is known as the township of Landis. In 1857, the date of the passage of the act incorporating complainant company, Millville township included all tire territory now comprising the present city of Millville, the borough of Vineland and the township of Landis. Millville was then an unincorporated village. The township of Landis was set off from Millville township in the year 1864. The borough of Vineland was incorporated in the year 1880, and comprises one square mile of territory in the centre of the township of Landis. The city of Millville now comprises all of the territory of the old township of Millville which is not included within the boundaries of the township of Landis and the borough of Vineland.

In November last complainant determined to extend its gas mains from the city of Millville through the township of Landis to or toward the borough of Vineland. It is averred by complainant that as soon as active preparations were made for this work defendant hastily began laying its mains through the township of Landis from the borough of Vineland toward Mill-ville, and along the highways which complainant was to occupy, with a view to interfere with complainant’s work and to appropriate the territory secured to complainant by its legislative franchise. It is this work of defendant which complainant now seeks to enjoin.

It is claimed on behalf of complainant that the act of March 20th, 1857 (P. L. 1857 ch. 164), under which complainant is incorporated, granted to complainant a legislative franchise to lay gas pipes and mains in the highways throughout the territory then constituting Millville township, which territory, as stated, includes the present township of Landis and borough of Vineland. It is also claimed on behalf of complainant that defendant company is without right, either by legislative or municipal authorization, to conduct business as a gas company or to occupy any streets or highways for that purpose.

Legislative grants of franchises of the nature claimed by complainant, whether granted by special charters or under general laws, confer privileges which are necessarily exclusive in their nature as against all persons upon whom similar rights have not been conferred, for any attempted exercise of such rights, without legislative sanction, is not only an unwarranted usurpation of power, but operates as a direct invasion of the private property rights of those upon whom the franchises have been so conferred. Raritan and Delaware Bay Railway Co. v. Delaware and Raritan Canal Co., 18 N. J. Eq. (3 C. E. Gr.) 546, 569; Pennsylvania Railroad Co. v. National Railway Co., 23 N. J. Eq. (8 C. E. Gr.) 441, 447; Jersey City Gas. Co. v. Dwight, 29 N. J. Eq. (2 Stew.) 242, 250; Elizabethtown Gas Co. v. Green, 46 N. J. Eq. (1 Dick.) 118, 124; Pom. Rem. § 584. It follows that if complainant is at this time entitled to exercise in the-disputed territory the privileges set forth in the legislative act referred to, and defendant, as claimed, enjoys no legislative sanction for the conduct sought to be enjoined, complainant will be entitled to the relief prayed for.

Defendant, however, denies the title of complainant to any franchise in the township of Landis and asserts, on its own behalf, a similar legislative grant covering that disputed territory.

At the hearing I expressed some doubt as to whether this, court should entertain jurisdiction for preliminary relief, in view of the fact that complainant is not in the actual enjoyment, of the disputed territory and the issues presented include a denial of the title of complainant to the right sought to be protected. While the violation of franchises afford frequent instances for the exercise of equity jurisdiction, I am not clear that any entirely satisfactory ground can be found to justify a court of equity in granting injunctive relief in favor of a complainant for the protection of a franchise the title to which is-challenged by defendant in a case where complainant is not in the actual enjoyment of the franchise claimed. In Whitchurch v. Hide, 2 Atk. 391, the chancellor refused to entertain a bill for the protection of a franchise until complainant should have-first established his title at law. In Moor v. Veazie, 31 Me. 360, 377, the view is entertained that a legislative grant of a. franchise, emanating, as it does, from the people in'their sovereign capacity, will be regarded as the equivalent of a right established at law, but the franchise there in question was in the-actual enjoyment of complainant. In Delaware and Raritan Canal Co. v. Raritan and Delaware Bay Railway Co., 16 N. J. Eq. (1 C. E. Gr.) 321, 378, the chancellor says: “An injunction is the proper remedy to secure to a party the enjoyment of' a statute privilege of which he is in the actual possession and' when his legal title is not put in doubt.” Where the basis of a bill is the refusal of defendant to yield to complainant the enjoyment of his legal estate in lands, and the title of complainant is in dispute, it is well settled that equity will not entertaini jurisdiction until the title is first established at law. Hart v. Leonard, 42 N. J. Eq. (15 Stew.) 416; Outcalt v. George W. Helme Co., 42 N. J. Eq. (15 Stew.) 665; Todd v. Staats, 60 N. J. Eq. (15 Dick.) 507. The prevailing view, however, appears to be that in the protection of certain intangible property rights, such as arise in actions to enjoin private nuisances, waste, 'the infringement of patents, of copyrights, of trade marks or literary property in manuscript writings, the law affords so inadequate a remedy that equity should extend its preventive writ for protection, even in cases where defendant brings into question the title of complainant to the rights asserted, and the wrongful invasion of a statute franchise is thought to invoke •equitable jurisdiction as most nearly embodying the elements of a nuisance.

The primary inquiry, therefore, will be as to the character and extent of complainant’s rights. In this inquiry certain well-settled rules must be recognized. The restraining power of a court of equity is only exercised for the protection of rights, the existence of which are clearly established, and so far only as may be essential for the protection of those rights, and it is also a rule of construction that public grants are to be construed strictly, and in all cases of grants of franchises by the public to a private corporation the established rule of construction is that any ambiguity in the terms of the contract must operate against the corporation and in favor of the public. The corporation takes nothing that is not clearly given by the act. Delaware and Raritan Canal and Camden and Amboy Railroad and Transportation Co. v. Raritan and Delaware Bay Railway Co., 16 N. J. Eq. (1 C. E. Gr.) 321; Pennsylvania Railroad Co. v. National Railway Co., 23 N. J. Eq. (8 C. E. Gr.) 441, 455.

The legislative act, under which complainant claims (P. L. 1857 ch. 164), is as follows:

“An act to incorporate the Millville Gas Light Company.
“1. Be it enacted by the senate and general assembly of the state of New Jersey, that Ferdinand F. Sharp, John McNeal, Edward Tatem, James Loper, Nathaniel Stratton, Lewis Mulford, Furman L. Mulford and Elijah B. Richman, and all and every person or persons who may become subscribers according to the mode hereinafter prescribed, and their successors, are hereby created a body politic and corporate in fact, by the name of ‘The Millville Gas Light Company,’ and by the said name the said corporation shall have power and authority to manufacture, make and sell gas for the purpose of lighting the streets, buildings, manufactories and other places situated in the town of Millville and its vicinity.
“2. And be it enacted, that the said corporation shall be empowered to lay down their gas pipes, and to erect gas posts, burners and reflectors in the streets, alleys, lanes, avenues and public grounds of the town of Mill-ville and its vicinity, and to do all things necessary to light the said town and the dwellings, stores and other places situated therein; provided, that the public travel shall at no time be affected or impeded by the laying of the said pipes or the erection of the said posts; and the streets, side and cross walks, public grounds, lanes and avenues shall not be injured, but shall be left in as good and perfect condition as before the laying of the said pipes or the erection of the said posts.”

The other provisions of the act are not material to the present controversy.

The claim of complainant is that the words, “the town of Millville and its vicinity,” as used in the first and second sections of the act, include the territory which comprised the township of Millville as it existed at the date of the passage of the act, whereas the contention on the part of defendant is that the words relate to only the territory which comprised the village of Millville, as it then existed, and the territory in its immediate vicinity, now defined by the corporate limits of the city of Millville. As already stated, Millville in the year 1857 was a small unincorporated village, and the township of Millville then embraced not only the village of Millville but also the territory now included in the present city of Millville, township of Landis and the borough of Yineland, respectively.

The significance of the word “town,” as used in legislative acts, has been the subject of judicial examination in this state in a number of cases. These cases are all collected in Brown v. Town of Union, 62 N. J. Law (33 Vr.) 142, except the case of Holmes v. Jersey City, 12 N. J. Eq. (1 Beas.) 299, which is not there cited. These cases fully determine that the word has no fixed significance in New Jersey. The word, as used in the constitution and in various statutes, is held to be of such uncertain meaning, standing alone, that the courts have uniformly applied its use according to the manifest intention of the legislation as gathered from the occasion and necessity of the act. By the adoption of this rule of construction in this case the legislative grant to complainant was either for the village of Millville and its vicinity or the township of Millville and its vicinity, according as the legislative intent may be more clearly manifest. To conclude that the latter was intended would seem to conflict with the reasoning adopted by the court of errors and appeals in Madison v. Morristown Gas Light Co., 65 N. J. Eq. (20 Dick.) 356, where it was held to do violence to the word “vicinity” to assume that the legislature intended by that word, similarly used, to include territory of an independent municipality not named. The more apparent legislative intent in the use of the expression, “the town of Millville and its vicinity,” in the act in question, appears clearly to be the equivalent of the expression, the village of Millville and its vicinity, and that is the meaning which I attribute to the language used. The determination of what territory was intended by the use of the word “vicinity” is more difficult. I am impressed that an accurate determination of the legislative intent in the use of that word in the act in question is dependent largely on an intimate knowledge of the physical conditions which existed at that time at the village of Millville and the territory surrounding it. How large a village, territorially, was Millville in 1857? Were there other villages in Millville township, near by or distant, which might then have been reasonably thought to be appropriate territory to receive a supply of gas, either presently or in the near future? Was the entire township, other than Millville, a sparcely settled country district, or were there other municipalities in the township at that time? These and other physical conditions, not disclosed by the record, would seem to be almost essential to an intelligent determination of the import of the word “vicinity” as used in the act. But without something to indicate a legislative intent to include more territory than would naturally be imported by the expression “Millville and vicinity,” I am unable to conclude that the language used was intended to include the entire township. It will be noted that the second section of the •act empowers complainant “to lay down their (its) gas pipes and to erect gas posts, burners and reflectors in the streets, alleys, lanes, avenues and, public grounds of the town of Millville and its vicinity.” The absence of a reference to roads, as well as the natural significance of the expression, carries with it a suggestion of some force that an entire township was not within the contemplation of the legislative body. My conclusion is that it does not at this time appear with sufficient certainty that complainant is the owner of a franchise covering the territory in dispute to justify this court in granting a preliminary injunction against defendant.

In refusing an injunction I do not wish to be misunderstood. The injunction is refused because at this time I deem the rights of complainant, as disclosed by the record, to be too uncertain to justify preliminary relief. This must not be deemed to prejudge the case of complainant on final hearing, for, as already indicated, the significance of the word “vicinity” may well be controlled by facts not at this time within the knowledge of the court. Should defendant continue the construction of its works within the territory in dispute, it will do so at its own risk. The bill may stand as one for mandatory relief at final hearing.

The conclusion I have reached renders unnecessary a discussion of the other questions presented. The order to show cause will be dismissed.


author: Teaming, V. C.

text:
    Lucy Day Holton v. Cora J. Holton.
    [Decided December 22d, 1906.]
    1. A motion against an entire bill, under chancery rule 213, may be treated as essentially a demurrer to the bill.
    2. To enable this court to decree a resulting trust to grantor, where an absolute deed of conveyance reciting a pecuniary consideration is executed and delivered, the intention that the grantee is not to enjoy the beneficial estate, but that a trust is to result, must appear expressly or by implication from the terms of the deed, and no extrinsic evidence of grantor’s intention is admissible unless fraud or mistake is averred.

      3. The fact that a conveyance was from a father to his daughter and that the father retained possession of the property conveyed and received its revenues and made improvements, standing alone, and without any averment of fraud or mistake through undue influence, or want of appreciation upon the part of the grantor as to what he was doing', or that the grantor was without ample means to warrant a gift, or was withaut the benefit of disinterested and competent advice, or entertained a purpose contrary to that expressed in the deed, is not sufficient to raise the presumption of a constructive trust and to cast upon the grantee the burden of answering.
    On motion to strike out bill of complaint.
    The bill is filed by complainant as widow and devisee of Theodore Holton, deceased, to establish a trust touching certain land conveyed to defendant by testator in his lifetime. Defendant is the daughter of testator. Defendant now moves to strike out certain portions of the bill and also to strike out the bill in its entirety.
    The facts disclosed by the bill are, briefly, that testator, in the year 1901, conveyed two certain lots of land to defendant. The consideration expressed in the deed is “one dollar and love and affection for his daughter.” At the time of the conveyance there was a dwelling-house on one of the lots, and on the other testator was then beginning the erection of a dwelling-house. Complainant was married to testator about two months after the execution of the deed. Defendant has never been in possession of the properties conveyed or exercised any act of ownership over them. One house was occupied by testator and complainant from the time of their marriage until the death of testator in August, 1906, and is still occupied by complainant; the other house has always been rented by testator. One of the houses was erected by testator at his own expense after the execution of the deed in question. All repairs and taxes have been at testator’s expense. Complainant is seventy-six years old. Testator left no property other than the two lots in question. Testator told complainant that he had placed the title to the lots in the name of his daughter, to hold the same for his benefit. The time when this statement was made is not made clear by the bill. On October 10th, 1905, testator signed the following paper writing :
    “October 10, 1805.
    “Vineland, New Jersey.
    “Now in regard to this place that we now live in X wish my wife to have it for she has done more for me than all of my children and no expense to me, and I want her to have her to have enough out of the other house to pay her for taking care of me since I have been sick, she has been a good wife to me. Now this is all I can think of now at this time. “Theodore Holton.
    “My children are good, but you cannot expect that children can do as a wife can.
    “Witness
    “James Chance
    “Oct. 10/05.”
    By the will of testator, dated August 3d, 1906, one of the lots is devised to complainant, and the other lot is devised to defendant, subject to a one thousand dollar charge in favor of complainant.
    The bill contains no averment of fraud or mistake in the execution of the deed. The age of testator is not given. No information is given as to the condition of body or mind of testator at the date of the conveyance or as to what property he may have owned at that time, or as to the relations which at that time existed between testator and his daughter, and no allegation is made that testator made the conveyance in question by reason of undue influence, or without disinterested or competent advice, or with any purpose other than that disclosed by the deed of conveyance.

      Mr. Herbert G. Bartlett, for the complainant.

      Mr. J. Fithian Taiem, for the defendant.
   Teaming, V. C.

The motion against the entire bill will alone be considered, as it is manifest that no relief can be granted under this bill. Under rule 213 this motion will'be treated as essentially a demurrer to the bill. Ireland v. Kelly, 60 N. J. Eq. (15 Dick.) 308, 310.; Stevenson v. Morgan, 63 N. J. Eq. (18 Dick.) 707; Hanneman v. Richter, 68 N. J. Eq. (18 Dick.) 753, 755.

The allegations of the hill are clearly insufficient to establish a resulting trust. When a deed of conveyance is executed and delivered, the intention that the grantee is not to enjoy the beneficial estate, but that a trust is to result must appear expressly or by implication from the terms of the deed, and no extrinsic evidence of the grantor’s intention is admissible unless fraud or mistake is averred. If the deed recites a pecuniary consideration, though only nominal, that recitation raises a conclusive presumption of an intention that the grantee is to take the beneficial estate, and destroys the possibility of a trust resulting to the grantor, and no extrinsic evidence will be admitted to show that there was, in fact, no consideration, unless fraud or mistake is shown. Osborn v. Osborn, 29 N. J. Eq. (2 Stew.) 385; Stucky v. Stucky, 30 N. J. Eq. (3 Stew.) 546, 554; Coffey v. Sullivan, 63 N. J. Eq. (18 Dick.) 296, 303; Fretz v. Roth, 68 N. J. Eq. (2 Robb.) 516, 527; 3 Pom. Eq. Jur. § 1036.

It is not so certain that the allegations of the bill may not support a constructive trust, but 1 entertain the view that the mere facts that the conveyance was from a father to a daughter, and that the father retained possession of the property conveyed and received its revenues and made improvements, standing alone, and without any averment of fraud or mistake through undue influence or want of appreciation upon the part of the grantor as to what he was doing, or that grantor was without ample means to warrant a gift, or was without the benefit of disinterested and competent advice, or entertained a purpose contrary to that expressed in the deed, are not sufficient to raise the presumption of a constructive trust and to cast upon the grantee the burden of answering. The authorities collected in Fretz v. Roth, 68 N. J. Eq. (2 Robb.) 516 (at p. 528), to which may be added Slack v. Rees, 66 N. J. Eq. (21 Dick.) 447, and James v. Aller, 68 N. J. Eq. (2 Robb.) 666, disclose fully the various conditions which may exist to establish the presumption of a constructive trust under a conveyance similar to the one in question. The averments of the bill are not, in my opinion, sufficient for that purpose.

The motion to strike out the entire bill will be sustained. Should complainant desire to file an amended bill by the addition of averments sufficient to sustain a constructive trust, leave will be granted for that purpose.


author: Lea ming, V. 0.

text:
    Luther Bateman et al. v. William W. Riley.
    [Decided December 21st, 1906.]
    1. A bill for specific performance may be maintained by the assignee of the vendee in a conti'act for tlie sale of land.
    2. In a contract for the sale of land a description of land is sufficiently definite to enable the vendee to maintain a bill for specific performance if the land is described in such a manner that it may be with certainty ascertained. Paroi evidence is admissible to show that defendant owned only certain land which would answer the description contained in the contract of sale.
    3. In a contract for the sale of land made by a husband, in which his wife has not joined, specific performance will not be decreed against the husband either with abatement from the purchase price or with a requirement that the husband give indemnity to the vendee against the inchoate right of dower of his wife, in a case where the wife lefuses to sign the deed, unless such refusal is shown to have been induced by the husband.
    On bill, answer, replication and proofs.

      Mr. Walter E. Bacon, for the complainants.

      Mr. Charles E. Sheppard and Messrs. Carrow & Kraft, for the defendant.
   Lea ming, V. 0.

The bill is filed by complainants as vendees to procure a decree of specific performance of a contract made by defendant for the conveyance of land.

The written contract is as follows:
“Reed of Luther Batem one hundred $ on payment of a thousand $ for all the beach front and marsh land that I own at or near Fortescue Island and I agree to turn over all leases that I hold to him.
“Dated Jan. 13th, 1000. Wa. W. Riley.
“deed given on the 15th int. Wm. W. Riley.”

It is urged on behalf of defendant that a decree of specific performance cannot be made in this cause because complainants Samuel Bradford and Lewis N. Bradford, Jr., are not parties to the written contract. This objection is without merit. At the hearing a written assignment was received in evidence whereby the vendee named in the contract assigned to his co-eomplainants each an undivided one-third interest therein. A bill for specific performance may be maintained by the assignee of the vendee in a contract for the sale of land. The only conflict of authorities upon the subject is as to whether it is necessary for the assignee of the original vendee to make the original vendee a party. ' But that question is not present in this case. Pom. Spec. Perf. § 487. At the hearing evidence was received showing that the contract was made in the interest of the three complainants. That evidence need not be considered.

It is further urged on behalf of defendant that the description of the land, as contained in the contract, is too uncertain to entitle this court to decree specific performance. There is no difficulty in ascertaining the land to which this contract refers. An examination of the records in the county clerk’s office discloses the exact boundaries of the land referred to in the contract. At the hearing these records were produced and received in evidence. The statute of frauds requires no more than that the land shall be described with reasonable certainty. It is enough if the property is described so that it may be with certainty ascertained, and parol evidence is admissible to show that defendant owned only certain land which would answer the description of the contract. Robeson v. Hornbaker, 3 N. J. Eq. (2 Gr. Ch.) 60; Camden and Amboy Railroad Co. v. Stewart, 18 N. J. Eq. (3 C. E. Gr.) 489, 491; Lewis v. Reichey, 27 N. J. Eq. (12 C. E. Gr.) 240; Tillotson v. Gesner, 33 N. J. Eq. (6 Stew.) 313, 319; Champion v. Genin, 51 N. J. Eq. (6 Dick.) 38, 39; Price v. McKay, 53 N. J. Eq. (8 Dick.) 588; Riley v. Hodgkins, 57 N. J. Eq. (12 Dick.) 278; Brooks v. Wentz, 61 N. J. Eq. (16 Dick.) 474.

A third objection urged on behalf of defendant is fatal to complainants’ right to the relief sought. It has been the uniform practice of this court to refuse to decree the specific performance by a husband of a contract for the sale of land, with either abatement from the price or with indemnity, where a wife has not joined in the contract of sale, and refuses, of her own volition, to join in a deed. Young v. Paul, 10 N. J. Eq. (2 Stock.) 401, 418; Hawralty v. Warren, 18 N. J. Eq. (3 C. E. Gr.) 124, 128; Pinner v. Sharp, 23 N. J. Eq. (8 C. E. Gr.) 274, 282; Reilly v. Smith, 25 N. J. Eq. (11 C. E. Gr.) 158, 159; Peeler v. Levy, 26 N. J. Eq. (11 C. E. Gr.) 330, 335; Blake v. Flatley, 44 N. J. Eq. (17 Stew.) 228, 229; McCormick v. Stephany, 61 N. J. Eq. (16 Dick.) 208, 224.

An effort was made upon the part of complainant to show that defendant induced his wife to refuse to sign a deed in fulfillment of the contract in question. A finding to that effect could not be justified on the evidence adduced.

I am obliged to refuse a decree for specific performance against the husband, with either an abatement from the purchase price or indemnity against the inchoate dower of defendant’s wife. Complainants may take a decree for conveyance from the husband, without abatement or indemnity, or the bill will be dismissed. In either event defendant will be entitled to costs, as defendant tendered a deed from himself to complainants for the land in question before the bill was filed.


text:
    Wesley B. Porch v. Agnew Company.
    [Decided January 5th, 1907.]
    A person who files a claim with a receiver of an insolvent corporation and sustains his claim before the receiver and before this court on appeal, is not a complainant within the meaning of the ninety-first section of the Chancery act (P. L. 1902 p. 5J/0). and is not entitled to the allowance of a counsel fee to be included as taxable costs.
    On motion for allowance of counsel fee to be included in taxed costs.
    Duparquet, Huot & Monetise Company filed with the receiver of defendant, an insolvent corporation, a verified claim in which the claimant asserted a mechanics’ lien against certain real estate of the insolvent company. Clarence M. Busch, a mortgagee of the same real estate, unsuccessfully contested the claim before the receiver. Prom the receiver’s decision Busch appealed to this court under the provisions of section 78 of the Corporation act of 1896 (P. L. 1896 p. 802), and the decision of the receiver was here affirmed. Busch then appealed to the court of errors and appeals and the decision of this court was there affirmed. Application is now made under section 91 of the Chancery act of 1902 (P. L. 1902 p. 5J/.0) for ah allowance of a counsel fee for Duparquet, Huot & Moneuse Company to be included in the taxable costs.

      Mr. William M. Clevenger, for the motion.

      Messrs. Thompson & Cole, contra.

   Leaking, V. C.

Section 91 of the Chancery act (P. L. 1902 p. 540) allows a counsel fee to be fixed by the chancellor and included in a complainant’s taxable costs. In McMullin v. Doughty, 68 N. J. Eq. (2 Robb.) 776, the court of errors and appeals sanctioned the allowance, under this section, of a counsel fee to complainant in a partition cause prosecuted in this court. The allowance of a counsel fee to the present applicant should manifestly be made if authority can be found to support it; but the statute, in terms, applies only to complainants, and I am unable to discern any legislative purpose to extend the provisions of the section in question beyond the primary and natural significance of the language used. One who files a claim with a receiver, and who is afterwards obliged to support his claim before this court on appeal, occupies a position similar to a complainant in a bill in equity to the extent that he has the affirmative of an issue to sustain; but such similarity is not based upon any principles peculiar to equitable remedies. His claim-may be,‘and usually is, a strictly legal claim, with no inherent element to confer equitable jurisdiction. The claim now in question was such a claim. The procedure is purely statutory and is, by the statute, described as “summary.” It is clear that the present applicant can only be brought within the provisions of the section by treating the section as an enactment intended to apply to all successful litigants in a court of equity except defendants. I am unable to find any justification for so broad an interpretation of the section. The motion must be denied.


author: Leaking, Y. C.

text:
    Ralph R. Buvinger v. Evening Union Printing Company.
    [Decided January 5th, 1907.]
    1. A chattel mortgage may be made a lien on the outstanding book accounts due to a mortgagor, and also upon such book accounts as shall thereafter become due to the mortgagor in the regular course of his business.
    2. The general manager of a corporation, who was also a stockholder and a member of the board of directors, held to be entitled to preferment under P. L. 1896 p. 303 § 83 for two months’ wages next preceding the institution of proceedings of insolvency.
    On appeal from tbe decision of a receiver touching the allowance of claims.

      Mr. William M. Clevenger, for the appellant.

      Messrs. Bourgeois & Booy, for the receiver.
   Leaking, Y. C.

The first question presented is whether a certain chattel mortgage, executed by defendant corporation prior to its insolvency, is a lien on outstanding book accounts due to the corporation at the time it°became insolvent and passed into the hands of a. receiver.

The chattel mortgage in question was executed to the Guarantee Trust Company, February 1st, 1902, to secure an issue of.' coupon bonds made by mortgagor. It embodies the ordinary features of trust mortgages, and is executed in conformity to the requirements of the statutes touching chattel mortgages.

The resolution of the stockholders authorizing the mortgage is recited in the instrument and refers to the chattels to be covered by the mortgage in the following language:

“That the president and secretary be and they are hereby authorized and directed to make and execute, under the corporate seal of said company, an indenture of mortgage covering all of the presses, type-setting machines, type, rules, slugs, folders, cutters, stock and all other goods and chattels and personal property of any kind or character now .or which shall hereafter be owned by the said Evening Union Printing Company, together with the ‘Daily Union,’ ‘Atlantic Times-Democrat’ and ‘Star Gazette,’ or any other newspapers now or hereafter to be published by the said company, all of which property now owned by said company and all of which papers now published by said company are located at 1632 Atlantic avenue, in the city of Atlantic City, in the county of Atlantic and State of New Jersey, together also with the privileges, franchises and appurtenances of and belonging to this company wheresoever situate, or that may be hereafter acquired by or conferred upon this company, including the franchise to be a corporation.”

The resolution, further provides:

“That for the better securing of the money due to the purchasers of the bonds secured by said mortgage, a sinking fund be created for the purchase and cancellation of the bonds to be issued by this company, and to that end the income from the business to be conducted by this company, after first paying the floating indebtedness amounting to $4,970.99, assumed by this company upon the purchase of the said property from the Daily Union Printing Company, and after paying all salaries and other expenses of any kind or character, and before paying any dividend to the holders of shares of capital stock of this company, the balance in the hands of the treasurer at the end of each fiscal year shall be credited to the sinking fund account for the purposes aforesaid.”

The resolution of the board of directors, passed to carry into effect the resolution of the stockholders, is also embodied in the mortgage, and in describing the property to be covered by the mortgage follows the exact language of the stockholders’ resolution.

In the granting clause of the mortgage the description of the property mortgaged specified the two newspapers referred to and their good will and the job printing business conducted in conjunction with them, and then enters upon an enumeration of various printing presses, each press being specifically described, and also a type-setting machine and certain shafting and belting and a certain electric motor, and then proceeds with the following language:

“Together with all of the type, slugs, rules, racks, frames, quods, furniture, desks, chairs, cabinets, leads, galleys, stones, saws and all personal property of any kind or character now belonging to the said Evening Union Printing Company, or which may hereafter belong to the said Evening Union Printing Company, either by way of renewal of the goods and chattels above described, or by way of additions thereto, including the right and franchise to be a corporation, and also all of the estate, rights, titles, incomes and interest whatsoever, as well at law as in equity of the said party of the first part in and to the same.”
“To have and to hold the said newspapers, goods and chattels and other personal property, as well as the corporate rights, privileges and franchises unto the said party of the second part, its successor or successors in trust,” &c.

Among the stipulations contained in the mortgage is one making provision for the sinking fund as referred to in the resolutions above quoted. By this stipulation a sinking fund is created for the purchase and cancellation of the bonds after first paying the floating indebtedness referred to, “and after paying all salaries and other expenses of any kind or character.”

I am of the opinion that this chattel mortgage is a lien on the outstanding book accounts due to defendant corporation at the date of its insolvency. This court has repeatedly held that a mortgagor of chattels may be permitted to transact business and malee sale of the mortgaged chattels in the regular course of his business, and that in such eases the lien of the mortgage, if so stipulated, will attach to the chattels from time to time acquired to supply the place of the chattels sold. With these rights of a mortgagor and mortgagee recognized, no reason is apparent why outstanding choses in action may not, in like manner, be included in the lien of the mortgage and the privilege be extended to the mortgagor to collect and apply such choses in action under a stipulation that the lien of the mortgage shall include new accounts arising in the regular course of the business. In Nugent v. McNeil Shoe Co., 62 N. J. Eq. (17 Dick.) 583, 585, the right to include outstanding book accounts in the lien of a mortgage is recognized. In any ordinary commercial business credit transactions are a well-recognized necessity, and the privilege of a mortgagor to sell and replace mortgaged goods does not essentially differ in effect from the privilege of collecting and replacing choses in action. I see no reason why the lien of a chattel mortgage should not, by appropriate provisions contained in the-mortgage, he preserved as to book accounts arising after the date-of the mortgage.

Does the language of the mortgage in question include outstanding book accounts then existing and thereafter to be-created ? The authority given by the stockholders and directors, to the executive officers was to execute a mortgage covering specific chattels named, and then adding:

“And all other goods and chattels and personal property of any kind' or character now or which shall hereafter be owned by the said Evening: Union Printing Company.”

Pursuant to that authority the mortgage was executed on certain enumerated chattels with the following language added:

“And all personal property of any kind or character now belonging to. the said Evening Union Printing Company, or which may hereafter belong to the said Evening Union Printing Company, either by way of renewal of the goods and chattels above described, or by way of additions thereto, including the right and franchise to be a corporation, and-also all of the estate, rights, titles, incomes and interest whatsoever, as well at law as in equity of the said party of the first part in and to the-same.”

The mortgage also made provision for mortgagor to continue-its business in the regular course. The intention of the parties to-include in the lien of this mortgage all of the assets of the mortgagor then existing and thereafter to be acquired in the progress-of its business, is, to my mind, clearly manifest from the terms-of the mortgage. Where the language used so clearly manifests a purpose to include all assets of mortgagor of every character,, present and prospective, an over technical measurement of the-specific words used should not be indulged in to defeat the general and manifest intention. No creditor of mortgagor could-have been reasonably misled by the language used. I think it clear that the outstanding choses in action of mortgagor are-covered by the lien of this mortgage. I do not find in the sinking fund clause any element to modify this view. That clause does no more than adopt a plan for the operation of the business of mortgagor during the period preceding default. It cannot be treated as a stipulation for the application of the assets of mortgagor after default or after insolvency.

The other question presented by the appeal is whether a general manager of a corporation, who was also a stockholder and a member of the board of directors, is entitled to a “labor claim” for the two months’ services rendered by him immediately prior to the appointment of a receiver.

The present claim is made under section 83 of the Corporation act. P. L. 1896 p. 303. The case of England’s Executors v. Beatty Organ Co., 41 N. J. Eq. (14 Stew.) 470, was decided under the provision of the statute of 1869. P. L. 1869 p. 1448; Rev. p. 188. It was there held that the president of a corporation was not a laborer within the meaning of the old act. Section 83 of the present Corporation act is practically the same as section 1 of the act of April 8th, 1892. P. L. 1892 p. 426. Under the latter act it was held, in Consolidated Goal Co. v. Keystone Chemical Co., 54 N. J. Eq. (9 Dick.) 309, that the bookkeeper of a corporation, though a director, was entitled to the preference given by the act. It is there noted that the later act is broader in its scope than the former one; and the view is also taken that while the duties of a president of a corporation may well be confined to matters supervisory in their nature, those of a bookkeeper involve labor in the strict sense of the word. In Campbell v. Taylor Manufacturing Co., 64 N. J. Eq. (19 Dick.) 622, it is suggested that the preference given by this statute to employes of a corporation was probably created for the purpose of preventing a general exodus of the workmen employed by the corporation in anticipation of the failure of the company. I am impressed that in this suggestion is to be found the true purpose and underlying spirit of the act. While the duties of the present claimant may not have involved the degree of manual labor which ordinarily falls to a bookkeeper, yet I think it clear that he is included in the spirit and purpose of the legislation. The language of the statute is: “All persons doing labor or service of whatever character, in the regular employ of such corporation.” If the recognized purpose of the statute be the preservation of the organized operative force of a corporation in a time of embarrassment, this language clearly must be held to include the general manager, even though he be a director and therefore a member of the board which employed him. His retention as the immediate supervisor and organizer of the operative force of employes is peculiarly essential to the accomplishment of the purposes of the act. Let his claim be allowed.

By the eighty-fourth section of the Corporation act these labor claims are postponed to the lien of a chattel mortgage which has been recorded more than two months next preceding the date when proceedings in insolvency shall have been actually instituted against the insolvent corporation.


author: Beaming, Y. C.

text:
    Joseph E. Roberts, Jr., v. West Jersey and Seashore Railroad Company.
    [Decided January 12th, 1907.]
    1. Equity has no jurisdiction of a suit by an owner of property in a block through which an elevated railroad was about to be constructed, crossing and vacating a street on which complainant’s property abutted, to enjoin its construction, unless complainant, by the undisputed facts of the case, and according to the settled law of the state, establishes his legal private right in that part of the street which would be vacated by the construction of the road.
    2. In a suit to enjoin the construction of an elevated railway, and the vacation of a certain street therefor, the fact that the legal right on which complainant founded his claim was wholly settled was not shown, where it did not appear that his predecessor in title purchased by reference to the street, the vacation of which was sought to be enjoined, at any time prior to its becoming a public street, though it was alleged that complainant’s predecessor in title and the other owners on that street widened it, by vacating ten feet of their respective fronts, thus making the several properties more valuable, and increasing the price the complainant was obliged to pay for his property.

      3. Nothing short of threatened destruction of property of great value, by acts of wanton lawlessness, inflicting injuries which, if not prevented, must result in irreparable damages, will justify the granting of an injunction staying an important public work, such as the construction of an elevated railroad and the vacation of a street therefor.
    On bill for injunction and answering affidavits.
    Tbe bill seeks to enjoin defendant from constructing its elevated railway across Cherry street, Camden. The proposed structure will be an embankment which wholly prevents travel along the old line of the street. Complainant is the owner of property in the block where the crossing is being constructed. The present application is for a preliminary injunction, and has been heard oh bill and answering affidavits at the return of the order to show cause.

      Mr. E. Ambler Armstrong, for the complainant.

      Messrs. GasTcill & GasTcill, for the defendant. ■
   Beaming, Y. C.

The elevated railway of defendant is being constructed pursuant to the provisions of the act of March 20th, 1901 (P. L. 1901 p. 116), which act authorizes a city to enter into a contract with a railroad company to change or elevate its road, and for that purpose to vacate, change the grade of, or alter the lines of streets. Pursuant to that statute contracts were made and ordinances passed by the city of Camden authorizing the work now in progress. Among the ordinances passed for the purpose was one vacating that portion of Cherry street now in question. Defendant is the owner of the property on either side of Cherry street abutting the part vacated.

The claim of complainant is based upon the theory that the vacation of the portion of Cherry street in question is, in legal effect, no more than a vacation of the public rights in the part of the street vacated, and that there still remains in the property owners on other parts of the street—and especially property owners in the same block—private rights in the part vacated which cannot be destroyed by municipal action without compensation. The private rights referred to are those described in Booraem v. North Hudson County Railroad Co., 40 N. J. Eq. (13 Stew.) 557, 564, as emanating as follows:

“Whenever a dedication of a public highway is effected—as it usually is—by means of a conveyance to private persons by reference to a proposed street over other lands of the grantor, the private rights of the several grantees precede the public right, and are the source from which the public right springs. By such conveyance the grantees are regarded as purchasers by implied covenant of the right to the use of the street as a means of passage to and from their premises, as appurtenant to the premises granted, and this private right of way in the grantees is wholly distinct from and independent of the right of passage to be acquired by the public.”

If it were necessary in this case to determine whether private rights acquired in this manner survive after the street has been accepted by a municipality and thereafter vacated, I should favor the view that the implied covenants from which these rights emanate relate only to the period of time between the original act of dedication and its consummation arising from the acceptance by the municipality; that the implied covenants contemplate not only the probable future acceptance by the municipality, but also contemplate the surrender of entire dominion and control to the municipality for the public welfare when such dedication shall have been consummated by public acceptance.But this view is not essential to the proper disposition of the present application, for this court has no jurisdiction to award the relief sought unless the legal right on which complainant rests his claim is, as a matter of law, wholly settled. To entitle complainant to the writ he seeks he must have demonstrated that, on the undisputed facts of this case, and according to the established law of this state, he has the private right which he claims in that part of Cherry street_ which has been vacated. Hart v. Leonard, 42 N. J. Eq. (15 Stew.) 416; Outcalt v. Helme, 42 N. J. Eq. (15 Stew.) 665; Todd v. Slaats, 60 N. J. Eq. (15 Dick.) 507.

The unsettled nature of complainant’s claim is apparent. In Booraem v. North Hudson County Railroad Co., supra, a claim of rights of this class is treated as doubtful. In Dodge v. Pennsylvania Railroad Co., 43 N. J. Eq. (16 Stew.) 351, 354 (affirmed, 45 N. J. Eq. (18 Stew.) 366), it is said:

“The precise question, then, which this case presents is this: Is it settled, as a matter of law in this state, that if any part of a public street is, at any time subsequent to the date of a conveyance of land abutting on it, abandoned or surrendered, the grantee named in such conveyance takes, by implied grant or covenant, a private right of way over that part of the street in which the public right has been extinguished? I know of no case decided by a superior court in this state which so discloses the law. None was cited on the argument of the motion. The question is one on which the courts of sister states are at variance.”

In the present case it does not clearly appear that complainant’s predecessor in title purchased, by reference to Cherry street, at a time prior to that street becoming a public street; but the averment is made that complainant’s predecessor in title and the other owners on that street widened the street by vacating ten feet of their respective fronts, thus making the several properties more valuable, and that by reason of that fact complainant was obliged to pay an increased price for his property. In Kean v. Elizabeth, 54 N. J. Law (25 Vr.) 462, the claim was made by prosecutrix that when the street on which she owned was laid out she was assessed for benefits, and on that fact she based a claim to a vested right in the continued existence of the street, and contested the vacation of a portion of the street distant from her property. The right there asserted somewhat resembles the claim here asserted, based on the widening of the street at complainant’s expense. The view entertained by the supreme court was that the damages complained of by prosecutrix, though greater in degree, were not different in kind from that of any other member of the community who would have had occasion to pass over the vacated highway.

Another ground exists on which the relief prayed should be denied. In Dodge v. Pennsylvania Railroad Co., supra, the learned vice-chancellor states with great force, as a principle of eqitity, that in cases like the present, where, if the court acts, an important public work, designed to free public travel from peril and to give greater security to human life, will be arrested and seriously delayed, nothing short of the threatened destruction of property of great value, by acts of wanton lawlessness, inflicting injuries which if not prevented must result in irreparable damage, will justify the court in issuing a command that the work should stop.

The motion for an injunction will be denied.


text:
    John B. Steelman v. Andrew Blackman.
    [Decided January 14th, 1907.]
    The purpose of the statutory bill in equity to quiet title to lands, authorized by 8 Gen. Stat. p. 8486, is to afford a remedy to a person in peaceable possession of lands where no adequate remedy at law exists. The statutory bill will not be entertained where it appears that defendant entered upon the land in question and plowed it for purposes of cultivation only a few weeks before the bill was filed, and that before the bill was filed complainant knew that the plowing had been done and was informed by his neighbors that it had been done by defendant, and, by a' reasonable effoi’t, could have procured the necessary evidence of the act of defendant to have based an action at law against him.
    On bill to quiet title.

      Messrs. Bourgeois •& Sooy, for the complainant.

      Mr. Marry B. Coulomb, for the defendant.
   Beaming, Y. C.

(orally).

The bill is filed under our statute (3 Gen. Stat. p. 3486) to quiet title to a tract of. land in Atlantic county. Defendant having asked for a feigned issue, pursuant to the statute, the present hearing has been confined to the preliminary inquiry as to whether complainant is entitled to pursue the statutory remedy.

To entitle complainant to pursue this remedy in this court it must appear that, at the time the bill was filed, he was in peaceable possession of the land in question. The purpose of this statute is to afford a remedy in this court where none exists at law, and the requirement of the statute that complainant must be in peaceable possession is but the equivalent of a statement that the remedy under the statute will be confined to that class of cases where the law courts fail to afford an adequate remedy.

The proofs disclose that about a week before this bill was filed defendant entered upon the land in question and for a half day plowed the land for the purpose of cultivation. After the bill was filed defendant finished the plowing and cultivated the land. The proofs also disclose that, at the time the bill was filed, complainant knew that the plowing had been done, and that he was informed by his neighbors that it had been done by defendant. I am entirely clear that under these conditions it was incumbent upon complainant to exercise at least a reasonable effort to procure the necessary evidence upon which to base an action at law before he could properly apply to this court for the statutory remedy under the claim of a peaceable possession. The trespass upon the land in question was of no ordinary character, and the certain ascertainment of who did the plowing was necessarily easy of accomplishment, and my judgment is that that duty rested upon complainant before he became entitled to avail himself of this statutory action. Had complainant made a reasonable effort to ascertain who did the plowing and failed to procure the necessary evidence to enable him to maintain an action at law, a different condition would now be presented; but in view of the well-recognized purpose of the statute to afford a remedy only where no remedy at law exists, I am of the opinion that complainant is not entitled to invoke the aid of the act.

I entertain some doubt as to the admissibility of the testimony touching the proceedings before the township cojnmittee and the notice given by the township clerk. I will, however, deny the motion to strike it out, and the complainant may have the benefit of my refusal to exclude it.

I will advise a decree dismissing the bill for want of jurisdiction of this court to entertain it.