text:
    United New Jersey Railroad and Canal Company et al. v. Freeholders of Hudson and Essex.
    [Submitted March 15th, 1918.
    Decided March 15th, 1918.]
    1. The right of a railroad to build a road and carry it across a public plank road by an overhead bridge is absolute, and the consent of the municipal authorities is necessary only when it is desired to cross at grade, which consent must be obtained from the municipality even in crossing a county road.
    2. A railroad having such absolute right will suffer irreparable injury, entitling it to an injunction against the county authorities interfering with such work if the use of a railroad partly constructed up to the roadway is delayed for want of a bridge.
    3. Even if it could not show such irreparable injury, the -court should see that the public work for the government is not hampered, the proposed bridge being necessary for industrial works aiding the prosecution of the war.
    4. Where such railroad has the right to place the abutments of such bridge within the road, but. nevertheless, proposes to place them outside, it has a right to construct a temporary bridge with abutments inside the road.
    5. Where the county superintendent of roads caused the arrest of the railroad’s engineer for bridging the road, and the superintendent had been prior thereto suspended, it being plain that the superintendent’s acts accorded with the views of the county authorities, objection that the superintendent’s action -was not that of the county authorities was purely technical.
    On bill, &c. On order to show canse.

      Messrs. Vredenburgh, Wall & Carey, for the complainants.

      Mr. John J. Fallon, for the freeholders of Hudson.

      Mr. Herbert W. Taylor, for the freeholders of Essex.
   Griffin, V. C.

The bill in this cause is filed by the complainants against the joint boards of Hudson and Essex counties to restrain interference with the complainants in the construction of a bridge across the Newark plank road (now called.Lincoln Highway), forming a connecting link in a railroad duly laid out on both sides thereof.

The joint boards are in possession of the plank road at the point in question. The history of the road and the title of the two counties may be found in In re Newark Plank Road and Bridges, 63 N. J. Eq. 710.

The road is in the township of Kearny.

A petition was presented to the boards by the complainants to build this bridge. The Essex board granted the permission, subject to the approval of the Hudson board. The Hudson board denied the request. Thereupon, notice was given by the counsel of the complainants to the Hudson board that on the 35th of February, 1918, they would commence the construction of the bridge. On that day they entered on the road for this purpose. The bill charges that one Dugan, the superintendent of the Newark plank road and bridges, an appointee of the joint boards, caused the arrest of the complainants’ engineer to stop the work; hence, this bill is filed.

The Hudson board alleges that Dugan had been suspended as such superintendent and had no authority to act in the premises.

The Essex board does not appear to oppose the action of the complainants; on the hearing its counsel merely read the resolution passed by his board granting the permission, subject to approval by the Hudson board, and rested.

The exigencies of the case are such that no time should be lost in disposing of the matter. On the Hackensack meadows, between the two rivers, and on both sides of this plank road, shipbuilding and other industries, employing many thousands of men, have been recently established to aid the government in prosecuting the war. Adequate transportation for men and materials is of prime importance, without which works of great public necessity will be greatly retarded.

The Hudson board opposes the granting of the injunction on the following grounds:

First. That no irreparable injury will be suffered by the complainants if the case be delayed until final hearing.

Second. That the complainants desire to build a temporary bridge until they can procure the girders for the permanent bridge. (These girders are to be one hundred and six feet in length. The supporting abutments are to be constructed outside of tire lines of the road. To procure these girders will take several months.) In erecting the temporary bridge the abutments will be placed inside the curb line, in compliance with the Railroad act. 3 Comp. Stat. p. 4232 & 27.

1. Will the complainants suffer irreparable injury? The right of the complainants to build the road and carry it across the plank road with an overhead bridge is absolute. Ho consent of the municipal or county authorities is necessary. It is only when it desires to cross at grade that a consent becomes necessary; and that consent must be obtained from the municipality, and not from the county, even when crossing a county road. Freeholders v. Railroad Company, 68 N. J. Fq. 500; affirmed, 70 N. J. Eq. 806. This counsel for the Hudson board concedes. It is, therefore, apparent that the complainants will suffer an irreparable injury if, with their right clear, with the railroad partly constructed up to the roadway, the use of it is delayed for xvant of a bridge. But, in addition to this, if the complainants would not suffer an injury xvhich might be said to be irreparable, the public necessity at the present time is paramount, and should outweigh questions of private consideration; and the court should see to it that public work for the government, in its aid, is neither hampered nor impeded. Especially is this so in this case, where the right of the complainants is clear, and the injury defendants xvill suffer, if any, is trifling, and is injury, if any, that is not legal, affording them any right, because it is occasioned by operation of the law.

2. Counsel for the Hudson board, however, makes a distinction between a permanent and temporary bridge. He cites no authority to support his view. I am unable to follow his reasoning, considering that the temporary bridge is an added expense, incurred only to accommodate transportation pending the construction of the permanent structure. If his theory is correct, it would lead to very dangerous results. It is common municipal practice, in replacing old bridges with new, to provide in the contracts for the erection of a temporary bridge pending the construction of the new one, as an incident; and the cost of such temporary bridge is charged against the cost of the new structure, without the statute particularly authorizing the erection of the temporary bridge. If such power does not exist, whenever the county desired to replace an old with a new bridge, all traffic on the highway would be cut off for a long period, to the great detriment of the public. But, apart from this, the complainants, if they desired, might, under section 27 of the Bail-road act, supra, treat this temporary structure as permanent, to the detriment of the road. Instead of taking advantage of the benefit conferred by the act to maintain their abutments within the road they propose, at an additional expense, to replace the temporary structure with one, the abutments of which shall be outside of the lines of the road.

3. The third objection is purely technical. The complainants Delieved, when they filed their bill, that Dugan, as superintendent, was acting under the orders of the officers of the boards. The Hudson board docs not disclaim an intent to stop the erection of this biidge. It says that if another petition is presented, it is willing to permit the construction of a temporary bridge over the Lincoln Highway (the Newark plank road), and the maintenance thereof during the period of the war, upon such reasonable terms and conditions as might be agreed upon. This expression of views, coupled with the attitude of counsel with respect to the temporary bridge, clearly indicates the opposition of the Hudson board to the crossing of the highway, arid plainly indicates that what Dngan did accords with their views, whether or not he had been suspended.

No criticism can be made of the Hudson board for its action. It is doing what it conceives to be its duty in the protection of the public highway; but, believing, as I do, that there is an absolute right, without its consent, to erect this bridge, and owing to the existing state of war rendering it necessary that these works should, as early as possible, have the most adequate railway facilities, I will advise an order that the joint boards be enjoined from interfering with the complainants in the construction of the temporary bridge.

The order of restraint, however, must specifically provide that the joint counties, through their engineers, shall supervise the work, with power to see that no unnecessary damage is done to the road, that, upon completion of the temporary structure, the road at the point in question be placed in suitable condition for public travel and so maintained during the existence of the temporary bridge, and, upon its replacement by the permanent structure, that the road he placed in as good condition as it was before the surface was broken.

Counsel may present the order to me at the chancery chambers, • at Jersey City, on Monday morning next, March 18th, at ten o’clock.


source: Caselaw Access Project

author: Griffin, V. C.

license: Public Domain

text:
    Postal Telegraph Cable Company of New Jersey v. The Delaware, Lackawanna and Western Railroad Company et al.
    [Submitted March 2d, 1918.
    Decided March 28th, 1918.]
    Where telegraph poles are lawfully located on a public highway, crossed by a railroad at grade, and the municipal authorities and the railroad company enter into an agreement to change the grade of the highway in order to abolish the grade crossing, and in performing this work it became necessary to temporarily remove the poles from the highway and restore them after the change of grade is completed, the cost of this work must be borne by the telegraph company.

      Messrs. Vredenburgh, Wall & Carey, for the complainants.

      Mr. Walter J. Larrabee, for the defendant Delaware, Lackawanna and Western Railroad Company.

      Mr. Fred W. Van Blarcom, for the defendant Board of Chosen Freeholders of the county of Passaic.

      Mr. William B. Gourley, for the defendant Township of Acqnackanonk.
   Griffin, V. C.

This cause is submitted upon the pleadings and a stipulation of facts, from which it appears that the river road in the township of Acquackanonk in the county of Passaic is a public highway which was crossed by the Delaware, Lackawanna and Western railroad at grade; that said river road is a post road within the meaning of the act of congress, within the lines of which the complainant had erected its telegraph poles carrying wires for the transmission of messages. The railroad company and the township and county authorities entered into an agreement to change the grade of the river road to abolish the grade crossing, under laws of 1903, page 661, sections 30 and 31 (Comp. Stat. p. 4234); section 30, amended P. L. 1915 p. 98 (Supp. Comp. Stat. p. 1299). In doing the work it became necessary to temporarily remove the telegraph poles and wires of the complainant to a point outside the lines of the highway, anticipating which, the complainant filed its bill to restrain this disturbance, and obtained an order to show cause, with restraint, upon the hearing of which an order was entered on the 19th day of June, 1916, on motion of the solicitors of all the parties, which, after permitting the work to be proceeded with, ordered as follows:

“Further Ordered, that the question, which of the parties shall be liable for the cost and expense of such relocation or reconstruction and the restoration of said poles and lines to within the lines of said River Road upon the completion of said improvement, and the costs on said order allowed June 3d, 1916, abide the final decree of this court.”

The complainant thereafter removed its poles, wires, &c., outside the lines of the road, and restored the same after the change of grade was completed, at an expense of $1,137.63.

The question now presented is which of the parties should bear this expense.

Eirsfc, are the municipalities liable?

If the complainant sought to enjoin the municipalities from changing the grade of the road because it would interfere temporarily with the maintenance of its poles in the locus in quo, or if it sued to recover the cost of changing the location of its poles during the improvement and restoring them to their former location after its completion, it is quite clear it would fail in both instances, because its easement is subservient to the rights of the public in the highway, from which it follows that the cost of all changes of location in the highway, made necessary to the use of the dominant right of the public in the highway, must be paid by the owners of what might be termed the subordinate easement. Jersey City v. City of Hudson, 13 N. J. Eq. 420; Erie Railroad, Co. v. Public Utilities Commissioners, 89 N. J. Law 57; affirmed, 90 N. J. Law 672, 673.

Second, is the railroad company liable?

The complainant insists that even though the municipalities are not liable, the railroad company is. Its view is that the change of grade was made for the sole benefit of the railroad company. With this I do not. agree, and do> not deem it necessary to pass upon what the situation would be if this contention were true. The change of grade was made with legislative sanction, which authorized municipalities and the railroad companies to enter into agreements to abolish grade crossings — a thing clearly beneficial to both — and fixing the portion of the expense to be borne by the municipalities. This is precisely what defendants did. In the sixth paragraph the municipalities agreed to take the necessary official, or other action, &c., to carry out the provisions of the agreement.

In the fifth paragraph the municipalities agreed (among other things) to secure the removal and re-location of the poles in question, where rendered necessary to perforin the work contemplated. This paragraph was evidently inserted to bind the municipalities to exercise their rights to compel the removal or relocation of the poles during the work, so that the same might not be impeded. The railroad company assumed no liability under this paragraph.

The complainant, as I understand it, makes the point, which is combated in defendants’ brief, that, as the railroad did the work (which is true), coupled with the assertion that it was for the railroad’s sole benefit (which I have found to be untrue) , a legal or equitable right arises in. favor of the complainant against the railroad company to reimbursement. I do not deem it necessary to pass on this compound contention, if it is so urged, because the element of sole benefit to the railroad company is missing; and, as to the fact that the railroad company did the work, that fact alone does not render the railroad company liable, because, in doing it, it stood toward the municipalities in the relation of contractor and employe. Clark v. Elizabeth, 61 N. J. Law 565-577.

Being of the opinion that the defendants are not liable to reimburse the complainant, a decree will be advised dismissing the bill.


author: Lane, V. C.

text:
    Henry G. Runkle et al. v. William E. R. Smith, executor, &c., et al.
    [Decided March 5th, 1918.]
    1. Where a beneficiary of a trust assigned his interest to secure a loan and gave the assignee a bonus in excess of six per cent., the excess is not enforceable either against the debtor or other assignees of the debtor.
    2. Where the assignment was made in another state but was to 'be performed in New Jersey, and depended for enforcement on the court of chancery of New Jersey, the law of New Jersey as to usury must control.
    3. The defence of usury may be interposed either by the debtor or his privies.
    On bill, &c. Conclusions on claim of the Logan Trust Company.

      Messrs. McCarter & English (Mr. Arthur F. Egner, of counsel), for William A. Marburg.

      Mr. V. Claude Palmer, for the Logan Trust Company.
   Lane, V. C.

The facts aie undisputed. William Runkle died January 31st, 1914. By his will the residuary estate went to Harry G. Runkle. There was also created a trust fund of $750,000, the income of which, during their lives, was to go to ITarry G. Runkle, Daniel Runkle and Mary Gray Runkle. For a considerable time there was litigation over the estate so that it could not be closed and no moneys could be distributed. Harry G. Runkle immediately after the death of William proceeded to realize moneys upon his interest, borrowed large sums from numerous individuals, I think fifteen or twenty, and as security executed to them assignments of his interest in the estate. On or about the 7th day of January, 1915, lie executed an assignment to the Logan Trust Company of his interest in the residuary estate purporting to secure the repayment of the sum of $73,000. On the same date he and Daniel Runkle and Mary Gray Runkle executed assignments of their interests in the trust fund. It may be that there was but one assignment, but that fact is immaterial. All three did assign to the Logan Trust Company to secure the repayment of the sum of $73,000, all their interests in the estate. The Logan Trust Company promptly filed the assignment, or assignments, or notice thereof with the Fidelity Trust Company, which was at that time acting as trustee under the provisions of the will creating the trust fund of $750,000 and as administrator pendente lite of the estate. Runkle borrowed from many others large sums of money and he, together with Daniel Runkle and Mary Gray Runlde, assigned, as security for the repayment of these other sums, interests in the estate, with the result that the residuary interest of Harry G. Runkle is, by several hundreds of thousands of dollars, loss in extent than sufficient to satisfy the amounts due under the numerous assignments, and it is extremely problematical whether the income accruing upon the trust fund during the joint lives of the three interested therein will be sufficient to satisfy the amounts due under the assignments made of such proceeds.

It is conceded that of the $73,000, purporting to be secured by the assignment held by the Logan Trust Company, $7,300 was retained by that concern as bonus for making the loan. It is insisted by subsequent assignees that the Logan Trust Company cannot recover more than the amount it advanced with legal interest, or, in other words, that from the amount of its claim, $7,300 must be deducted. The insistence of the Logan Trust Company is that the contract was made in Pennsylvania; that it is to be enforced in accordance with the Pennsylvania law as established by the courts of that state; that, while, conceding that the original debtor, Harry G. Runkle, could not be compelled to pay the $7,300, the courts of Pennsylvania have established the rule that the defence of usury is personal to the debtor, and he alone can set it up.

The Pennsylvania statute, with respect to usury, is substantially similar to that in this state. It provides inter alia: Section 1. That the lawful rate of interest for the loan or use of money, in all. cases where no express contract shall have been made for a less rate, shall be six per cent, per annum. * * * Section 2. That when a rate of interest for the loan or use of money, exceeding that established by law, shall have been reserved or contracted for, the borrower or debtor shall not be required to pay to the creditor the excess over the legal rate.

By a further provision the debtor is given the right, if he has already paid the excess, to, within a limited space of time, obtain its return.

It, therefore, clearly appears that the contract for the payment of more than six per cent, was in direct violation of the usury laws of the State of Pennsylvania and contrary to the public policy as established by. legislation of both that state and this. It could not have been enforced against the debtor even if the interpretation put upon the Pennsylvania decisions by counsel for the trust company be correct. If the contract is to be governed by the laws of this state it could not be enforced either against the debtor or his privies. Cummins v. Wire, 6 N. J. Eq. 73; Warwick v. Marlatt, 25 N. J. Eq. (at p. 192); Brolasky v. Miller, 8 N. J. Eq. 790; 9 N. J. Eq. 814; Pinnell v. Boyd, 33 N. J. Eq. 600; Hackensack Water Co. v. DeKay, 36 N. J. Eq. 566.

The party now seeking to set up the invalidity of the contract did not take his assignment expressly subject to the assignment of the Logan Trust Company. I have examined with care the very numerous opinions cited by counsel on both sides from the State of Pennsylvania, and while it is true that there are several which indicate that, in the absence of proof, that the defence of usury was not made by the debtor with intent to defraud creditors, a judgment obtained against a debtor upon a usurious contract will not, at the instance of subsequent judgment creditors or others in privy with the debtor, be set aside. I am far from convinced that the Pennsylvania courts have gone to the extent of holding that in a case such as this where the creditor is endeavoring to enforce in a court of equity an equitable assignment, cognizable only in equity, the creditor will be permitted as against those in privy with the debtor to recover more than the amount actually advanced with legal interest, and I am unwilling to hold that its courts of equity can be stirred to enforce such a contract. See Powers v. Chaplain, 30 N. J. Eq. 17. But be that as it may be, it seems to me to be clear that, assuming the contract to have been made in Pennsylvania, but to be performed in this state and requiring for the enforcement of its performance the action of this court, the question as to by whom the defence of illegality can be set up is governed by the law of this state. The facts are very similar to those dealt with by Judge Chatfield in Stotesbury v. Huber, 237 Fed. Rep. 413.

The result is that the claim of the Logan Trust Company will be reduced to the extent of $7,300, and an order advised directing the distribution of the sum of $7,300 with its accumulations now reserved by the executor under a prior order to the creditor next in order of priority.


text:
    Adelaide L. de Lukacsevics et al. v. Julia C. Nagle et al.
    [Decided March 5th, 1918.]
    Sequestration of a husband’s property and the appointment of a receiver thereof to secure alimony and maintenance in a divorce case does not divest him of all interest in the property. A judgment creditor in such case may sell such interest as the husband still possesses.
    On bill, &c.

      Mr. Frederick S. Taggart, for the complainants.

      Messrs. Lintott, Kahrs & Young, for the defendants.
   Lane, V. C.

Adelaide L. de Lukaesevics, one of the complainants, commenced proceedings in this court to obtain a divorce from her husband. On January 29th, 1917, an order was made, and a writ of sequestration issued under the provisions of the twenty-fifth section of the Divorce act of 1907, which reads as follows:

"Pending a suit for divorce or nullity, or after decree of divorce, it shall be lawful for the court of chancery to make such order touching the alimony of the wife, and also touching the care, custody, education, and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall be rendered, fit, reasonable and just, and to require •.reasonable security for the due observance of such orders, and upon- neglect or refusal to give such reasonable security •as shall be required, or upon default in complying with the order, to award and issue process for the immediate sequestration of the personal estate, and the rents and profits of the real estate of the party so charged, and to appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate, or so much thereof as shall be necessary, to be applied toward such alimony and maintenance as to the said court shall from time to time seem reasonable and just, and to enforce the performance of the said orders by such other lawful ways and means as is usual, and according to the course and practice of the court of chancery." * * *

The writ was immediately executed by the sheriff and subsequently a receiver was appointed who went into possession of certain of the real and personal property of de Lukaesevics and who has continued in possession. On February 16th, 1917, judgment was obtained by the defendant Eagle against Charles de Lukaesevics for $21,352.86, and on March 4th an execution out of the supreme court issued. On May 4th, 1917, a decree nisi was granted in favor of Adelaide de Lukaesevics against Charles de Lukaesevics, which decree was made by its express terms a lien upon the personal property and real estate of de Lukaesevics.

The bill filed by Mrs. de Lukaesevics and the co-complainant, who is the receiver, charges that the judgment of Mrs. Eagle was obtained in collusion with Charles de Lukaesevics for the purpose of defrauding Mrs. de Lukaesevics; that it represents no real indebtedness; that at most the indebtedness it represents is in the neighborhood of $9,000, and prays that the defendant Eagle should be restrained from proceeding at law to collect the amount of the judgment out of the real property of the defendant de Lukacsevics in the possession of the receiver appointed hy this court in the divorce proceedings. I have already found that there is not sufficient evidence to indicate that there was not a real debt due from de Lukacsevics to Mrs. Nagle and that the judgment was obtained for the purpose of defrauding Mrs. de Lukacsevics. It is conceded by counsel for Mrs. Nagle that as against Mrs. de Lukacsevics the judgment should not be enforced for a sum in excess of $9,000, and a decree will be advised so providing.

I cannot yield to the insistence of counsel for the complainants that under the provision of the statute heretofore referred to the husband was divested of all interest in the property in question so that there was nothing left in him which might be sold under an execution at law.

T have considered the case of Wood v. Price, 79 N. J. Eq. 1. It seems to me that the defendant Nagle is entitled under the execution issued on her judgment to sell such interest as de Lukacsevics may still possess. What rights will be acquired by the purchaser may be a grave question. What they may be is a matter for future determination. Close v. Close, 28 N. J. Eq. 472.

Any relief other than that above indicated will be denied.


text:
    The Goodyear Tire and Rubber Company, Incorporated, v. United Motor Car and Supply Company, Incorporated.
    [Decided March 5th, 1918.]
    In a receivership proceeding the court may allow, as a preferred claim, a reasonable sum for compensation of the counsel employed by the corporation, in good faith, to prevent the appointment of a receiver, but counsel fees representing services to the stockholders of the corporation instead of to the corporation itself, could not be allowed.

      On bill, &C.

      Mr. Abraham Rudensey, pro se.

      Mr. Edwin G. Adams, for the receiver.
   Lane, V. C.

This is an application for an allowance for compensation for services rendered as counsel to the defendant company from April 27th, 1917, the date of the institution of the insolvency proceedings against it, to May 3d, 1917, when the officers of the company, on the advice of counsel, consented to the appointment of a receiver under the statute.

Application is not made under the provision of the statute providing for the payment of employes, but is based upon the inherent power of the court to direct paid, as a preferred claim, a reasonable sum for compensation of counsel employed by the corporation in good faith to defend the corporate existence of the company. I think the power exists. High Rec. (4th ed.) 439; Barnes v. Newcomb, 89 N. Y. 108; People v. Commercial Alliance Insurance Co., 148 N. Y. 563.

I adopt the language of the court of appeals in the latter case: “The case of Barnes v. Newcomb, 89 N. Y. 108, is an authority for the proposition that a court of primary jurisdiction, in the exercise of its discretion, may authorize the receiver of an insolvent corporation, appointed in an action brought for its dissolution, which was defended in good faith, by the corporation, though unsuccessfully, to pay as a preferred claim out of the funds in his hands a reasonable sum for the compensation of counsel employed by the corporation in defending the action. The principle upon which an allowance in such case may be made is that counsel fees are in the nature of expenses incurred by the corporation and its trustees in the protection and preservation of the trust which they represent; and even if it turns out that a case is made for the interference of the state, so long as the defence was made in good faith and upon reasonable grounds, there is apparent justice in subjecting the property and fund involved in the litigation to expenses incurred in discharging a general duty cast upon the corporation and its trustees to take all reasonable means for its protection.”

I have examined the bill of particulars submitted by counsel and am convinced that a large portion of the services alleged to have been rendered were services rendered to the stockholders of the company with a view of rehabilitation rather than services rendered to the officers and directors as trustees for the creditors and stockholders. For such services as were rendered to the stockholders no .allowance can, of course, be made. For such as were rendered in good faith to the officers and directors of the company as trustees for the creditors and stockholders an allowance will be made. I think the sum of $75 will be adequate compensation for such services and that sum will be allowed.


text:
    Helen E. Marsh v. Joseph A. Marsh.
    [Decided May 6th, 1918.]
    1. Where land was sold under a restrictive covenant that no building should be erected thereon unless the front foundation -wall of said building is at least seventy-five feet from the front of said premises on Sunset Parkway North, the erection of a structure which, is a porch below and a second story above is a violation of that covenant, even if the structure is supported by piers and not by a solid foundation wall..
    2. The term “foundation wall” in such a covenant does not necessarily imply a solid wall but includes anything that takes the place and serves the purpose of a foundation wall.
    3. While the language of a restrictive covenant is to be strictly construed the court is not obliged to attribute a strict technical meaning to each word used, where to do so would result in defeating the perfectly clear intent of the grantor. The court may construe the language used in the light of all the circumstances, the test being whether the construction put upon the language by the court is so clear that by the acceptance of the deed the acceptor may reasonably be deemed to have understood and acceded to the terms of the restriction as so construed.

      4. Because the complainant acquiesced in the erection of the porch, he is not estopped by laches from complaining of the erection of a second story thereon.
    5. Howland v. Andrus, 81 N. J. Eq. 175, distinguished.
    On bill, &c.

      Messrs. Edwin B. & Philip Goodell, for the complainant.

      Mr. Charles Jones, for the defendant.
   Lane, V. C.

The bill is filed to enforce the provisions of a restrictive covenant. Both complainant and defendant derive title from a common grantor, the executors of Erwin J. Crane. Crane owned a considerable tract of land along a street in Montclair known as Sunset Park Worth. There is no doubt but that there was a plan of development adopted by which it was contemplated that, no house should be built upon any of the property, the main structure of which should be within seventy-five feet of Sunset Park Worth. In the deeds which were made, including that to defendant, there was this restrictive covenant: “That no building shall be erected on said lot unless the front foundation wall of the said building is at least seventy-five feet from the front of the above premises on Sunset Parkway Worth.” The house of defendant is on the corner of Worwood avenue and Sunset Park Worth and faces Worwood avenue. The front foundation wall is parallel to Worwood avenue. Prior to the purchase by defendant of the premises in question, and prior to October, 1910, a dwelling-house had been erected. .There was attached to it a porch, resting upon piers, facing Sunset Park Worth, extending for a distance of approximately fourteen feet, within the seventy-five-foot distance referred to. Wo objection was made to this structure, nor do I think there could have been an objection made to it. Some time in 1917 defendant proceeded to make alterations which are now complained of. He filed plans with the building department of Montclair. These plans indicated that a foundation wall was to be placed under, and that a second story was to be erected over the porch. After objection by the complainant, the plans were altered so that the foundation wall was omitted. Substantially, however, so far as outward appearances are concerned, the structure is to be as the plans originally contemplated.

There are three questions to be decided — (1) What is the meaning of the restrictive covenant? (2) Does the proposed structure come within its inhibition? (3) Is the complainant estopped or guilty of laches?

First. I have no difficulty in construing .the covenant. It reads: “That no building shall be erected on said lot unless the front foundation wall of said building is at least seventy-five feet from front of above premises on Sunset Parkway North.” Construing it strictly, it seems to me that if any part of the front foundation wall is within seventy-five feet of Sunset Park North there is a violation of the covenant. If the defendant choose to build his building so that his front foundation 'wall fronts Norwood avenue rather than Sunset Park North, he must build it so that no part of it is nearer to Sunset Park North than seventy-five feet.

It seems to me that the reasoning of the court of errors and appeals in the ease of Howland v. Andrus, 81 N. J. Eq. 175, does not apply. In that case, while it is true that the physical location of the properties was similar to the location of the properties under consideration in this case, the covenant was substantially different. The deed under which the complainant obtained title to the property fronting on Wildwood avenue contained a restriction that any building should be “so located that the front line thereof shall not be nearer than sixty feet to the street line measured at right angles thereto.” It contained a further provision that no other lots should be sold except by deed containing the same restriction. The deed to the defendants of a corner lot on the corner of Wildwood avenue and Park street contained this restriction:

"The said houses to face on Park street on lots having a frontage of not less than one hundred feet, the front foundation wall of said dwelling to be at least fifty feet from the westerly side of Park street.”

A map filed prior to the making of the deeds showed the corner lots facing Park street. Of this map the complainant at the time of his purchase had knowledge. Upon the defendants proceeding to erect a building fronting Park street, the side line of which facing Wildwood avenue, would be within sixty feet of the street line, complainant filed a bill for injunction. The court of chancery granted the injunction, holding “for the purpose of the covenant the line of the dwelling “fronting’ toward the street from which the measurements are to be taken, is to be considered as the ‘front line’ intended by the covenant, although this line might be in fact the side line of the dwelling.”

The court of errors and appeals reversing intimated that this construction did violence to the language used. It based its determination, however, upon the fact that at most the complainant’s right to relief was doubtful, and that being so, equity ought not to intervene. The covenant now under discussion is substantially different. It forbids the erection of any building unless the front foundation of such building is at least seventy-five feet from the front of said premises on Sunset Parkway North. In the Andrus Case the street from which the measurements were to be made is not indicated by name, but the covenants clearly refer to the street upon which the building fronts. In the case at bar, the street from which the measurements are to be taken is named, to wit, Sunset Park North. Although the court of errors and appeals said in the Andrus Case that while the word “side” might be used in a generic sense to include “front,” the word “front” as applied to a house is always specific, yet it seems to me that it may appear from the context that the user of the word may not have used it in the specific sense indicated by the court of errors and appeals. Again, referring to the covenant, the grantor says that the front foundation wall of the building must be at least seventy-five feet “from the front of said premises on Sunset Parkway North.” The grantor here clearly indicates that he is referring by the word “front” to that portion of the lot adjacent to Sunset Park North.

The clear purpose of the grantor as expressed in the covenant was to prevent the erection of a structure with foundation walls nearer to Sunset Park North than seventy-five feet.

Second. Does the proposed structure violate the restrictive covenant ?

I think it does. It may be that from a technic architectural -standpoint, what is being erected is an upper porch. It is a fact that there are no “foundation walls” (in the technical sense) under the lower porch. I have examined photographs of the structure in question and it appears that defendant has in reality, so far as outward appearance is concerned, added two wings to his house. It is not contended that if the structure which is built on the other side of the house had been built on the side fronting Sunset Park North there would not be a violation of the covenant. So far as outward ajqoearance there is no distinction between that portion of the structure which faces Sunset Park North and that portion of the structure built on the other side of the house. Yet defendant insists that, because he has induced the building department of Montclair to permit the erection of the structure facing Sunset Park North without a foundation wall (speaking technically), although it looks the same as the other, it is not within the terms of the restrictive covenant. I think that the language “front foundation wall” does not necessarily imply a solid wall (Cornell v. Bickley, 52 N. W. Rep. 192; 85 Iowa 219), but includes anything which takes the place and serves the purpose of a foundation wall, and I think that the piers which support the double-decked structure are within the meaning of the restrictive covenant a part of the front foundation wall of the building, and being within a distance of seventy-five feet from Sunset Park -North, there is a violation of the restrictive covenant.

I have considered the cases of Walker v. Renner, 60 N. J. Eq. 493; Atlantic City v. Young Amusement Co., 68 N. J. Eq. 831; Forlesque v. Carroll, 76 N. J. Eq. 583. The rules to be applied in the determination of cases such as this as gathered from these cases seem to be clear. The language of the covenant is to be strictly construed. If it has a plain meaning, it is to be enforced in that sense. If it has no meaning, it cannot be enforced. If it may mean either one of two things, it will be. construed to mean that which is most favorable to the owner of the property. If complainant’s right to relief be doubtful equity ought not to intervene. But none of the rules laid down deprive the court of the power to construe the language used in the light of all of the circumstances — this very thing was done in Walker v. Renner, supra. Nor is the court obliged in a case where to attribute a strict technical meaning to each word used would result in defeating the perfectly clear intent of the user of the language to apply such strict technical meaning. The test is whether the construction put upon the language by the court is so clear as that by the acceptance of the deed containing the restriction th.e acceptor may reasonably be deemed to have understood and acceded to the terms of the restriction as so construed. Fortesque v. Carroll, supra.

The clear purpose of a restrictive covenant, such as now under consideration, is to prevent the erection of something which can be sensed by one of the senses. When the grantor used the language “foundation wall” he had primarily in mind, not the masonry forming the foundation, but tire structure superimposed, or a structure ordinarily superimposed upon a. foundation wall which would appeal to the sense of sight of a neighbor. To hold that a person under the terms of such a covenant may erect a main structure (which would ordinarily rest upon a foundation wall and be within the terms of the covenant) without a foundation wall, technically speaking, and be without the terms of the covenant, would render the language of the restrictive covenant meaningless.

Third. Defendant insists that because of the acquiescence of complainant and her predecessors in title in the existence of the lower porch so called that she is charged with laches, or is estopped from questioning the building of the proposed structure. There can be no claim that there was any laches after complainant ascertained that defendant intended to build the structure now being erected. The answer to the contention of defendant is that prior to the proposed changes the structure existing was in fact hut a porch. The change proposes not only the erection of a second story but an alteration of the lower porch. As I have before pointed out as originally proposed there were to be foundation walls under the lower porch. These walls were abandoned upon objection being made by complainant, with the consent of the Montclair building authorities. "While it is true that the roof of the structure as proposed is not a continuation of the roof of the main structure, yet it is so connected with the roof of the main structure, and the nature of the construction of the second story addition is such, as that to the eye the entire structure appears to be one main building. I do not think the complainant could have objected to the existence of the porch as it was prior to the alteration. I think the alteration has changed its nature so that the complainant may now object.

Decree for complainant.

Settle decree on five days’ notice.

Throughout these conclusions the words “Sunset Park Eorth” and “Sunset Parkway Eorth” have been used to designate the same street. The reason is that in the documents dealing with the title the words have been used interchangeably.


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    Nichola Brunetti v. Antonio Grandi and Francesco Criscitelli et al.
    [Decided May 9th, 1918.]
    1. In an interpleader suit brought by the owner of property against whom a judgment had been obtained by a contractor under a filed contract for erecting .a building, the attorney of the contractor is entitled to a preferred claim for Ms costs, disbursements and a reasonable fee for Ms services rendered in obtaining the judgment in preference to noticing claimants under the Mechanics’ Lien act.

      2. Notwithstanding the service of notices under the third section of the Mechanics’ Lien act, the contractor still has a cause of action either in his own right or in the right of noticing claimants, sufficient to warrant an action in a law court to recover from the owner the full amount of his claim and the attorney who prosecutes such an action has a lien upon such cause of action and judgment recovered for his compensation under P. L. 1914 p. 410, which is superior to the claims of the noticing claimants.
    3. In mechanics’ lien cases where there are several notices served and there is a question of priority or validity, or where there is a dispute as to the amount due from the owner to the contractor, the general practice is to seek relief in equity by bill of interpleader or in the nature of a bill of interpleader.
    4. If the dispute be as to the amount due from the owner to the contractor the practice as to determination has not been uniform. The court may permit a suit brought by the contractor against the owner to go to judgment at law; in any event the court will permit but one suit at law to proceed.
    On bill of interpleader.

      Mr. Gaetano M. Belfatio, for the complainant.

      Messrs. Osborne & Astley, for the defendant Borne Stone Cutting Company.

      Messrs. Stallman, Van Liew & Peck, for the defendant Rockovan Brothers Company.

      Mr. Henry H. Dawson, for the defendant Tomkin Brothers.

      Mr. Charles C. Giffoniello, for the defendants Joseph Ochicone, Essex Mosaic Tile Company, West Side Iron and Steel Works.

      Mr. Carl P. Hinrichsen, for the defendant Cook & Genung.

      Messrs. Kessler & Kessler, for the defendants East Side Moulding and Lumber Company, Herman Mass, Bising & Thorne, Max Abramson.

      Mr. Themistocles Mancusi-Ungaro, pro se.

   Lane, V. C.

This is an interpleader suit brought by the owner of property against whom there had been obtained a judgment by a contractor for the balance due ¡him for work performed under the terms of a filed contract for the construction of a building. On January 13th, 1915, suit was brought at law by the builder against the owner. Judgment was obtained for $3,516.62. The case was taken to the supreme court and the court of .errors and appeals, and the judgment was finally affirmed on the 15th day of March, 1916. Prior to the institution of suit, notices had been served under the third section of the Mechanics’ Lien act (Comp. Stat. p. 3294) by subcontractors and materialmen. The amounts admitted to be due to the noticing claimants exceed the amount of the judgment. The claimant, Themistoeles Mancusi-IJngaro, was the attorney for the contractor in the suit at law. Immediately after the entry of judgment he obtained an assignment thereof to secure his fees and disbursements, which was duly recorded. He now claims priority over the noticing claimants for his costs and disbursements and a reasonable fee for his services rendered. There is no dispute as to the validity or priority of the claims of the respective noticing claimants, nor is there any dispute as to the amount that should be allowed the attorney, if he is entitled to priority, and the only question in the case is whether or not this priority exists.

Prior to the adoption of the statute giving attorneys liens (P. L. 1914 p. 4-10), the law seems to have been that a lien of attorneys for compensation arose only after judgment recovered, or after the proceeds of a compromise or settlement had come to the actual possession of the attorney. Chancellor Magie, in Weller v. Jersey City, Hoboken and Paterson Street Railroad, 66 N. J. Eq. 11, citing Terney v. Wilson, 45 N. J. Law 282; Phillips v. Mackay, 54 N. J. Law 319; Barnes v. Taylor, 30 N. J. Eq. 467; Middlesex Freeholders v. State Bank, 38 N. J. Eq. 36. After the entry of judgment or decree, the defendant after notice of a claim of lien might not pay the amount due without making himself liable for the amount due the attorney for services and disbursements. Barnes v. Taylor, 30 N. J. Eq. 467. Nor could the client substitute an attorney where there was a fund within the control of the court without satisfying the attorney’s lien. Hudson Trust and Savings Institution v. Carr-Curran Paper Mills, 44 Atl. Rep. 638. The statute (P. L. 1914 p. 410) provides that

“After the service of a summons and complaint in any action at law * * * the attorney, solicitor or counsellor at law who shall appear in said cause for such party instituting the action at law, or suit * * * shall have a lien for compensation, upon his client’s cause of action * * * which shall contain (sic) and attach to a verdict, report, decision, decree, award, judgment or final order in his client’s favor, and the proceeds thereof in whosoever hands they may come.”

The contention of the noticing claimants is that at the time of the service of summons the contractor had no cause of action upon which an attorney’s lien could attach, because the notices served theretofore had operated as assignments pro tanto of the moneys due from the owner to the contractor to the extent necessary to pay the claims. It has been held that notices served under the third section do operate as assignments pro tanto. Wightman v. Brenner, 26 N. J. Eq. 489; Kirtland v. Moore, 40 N. J. Eq. 106; Kreutz v. Cramer, 64 N. J. Eq. 648. An action at law will lie by a noticing claimant against the owner. Craig v. Smith, 37 N. J. Law 549; Wightman v. Brenner, supra; Reeve v. Elmendorf, 38 N. J. Law 125. In such an action it is, however, necessary for the plaintiff to prove that there is a sum due from the owner to the contractor. Such an action will not lie until the amount is due under all of the terms of the contract. Booth v. Kiefer, 47 Atl. Rep. 12. Where there are several notices served and there is a question of priority or validity, or where there is a dispute as to the amount due from the owner to the contractor the general practice is to seek relief in. a court of equity on bill of interpleader or in the nature of a bill of interpleader. Superintendent, &c., v. Heath, 15 N. J. Eq. 22; Aleck v. Jackson, 49 N. J. Eq. 507; English v. Warren, 65 N. J. Eq. 30; Kirtland v. Moore, supra; Hall v. Baldwin, 45 N. J. Eq. 858. The danger to which the owner may subject himself by permitting suits brought by stop-noticing claimants to go against him before seeking relief in a court of equity by a bill of interpleader, or in the nature of a bill of interpleader, is well illustrated by the case of Prusakowski v. Woodward Lumber and Supply Co., 103 Atl. Rep. 194. Where the dispute is as to the amount due from the owner to the contractor the practice as to the method of determination has not been uniform. In Aleck v. Jackson, the contractor was permitted to proceed with his suit against the owner to final judgment. In that case it appeared that the amount admitted to be due by the owner to the contractor was less than the aggregate of the amounts claimed by the noticing claimants. Although the term “assignment pro tanto“ has been applied to the effect of these notices, the served notices have not all the qualities of assignments, for the owner cannot, in an action brought by the contractor against him, claim credit for the amount claimed by any of the notices unless he shall have in fact paid the amount claimed to be due. Wightman v. Brenner, supra. Notwithstanding, therefore, the service of notices, the contractor retains either in his own right, or in the right of the noticing claimants, a sufficient cause of action to warrant a judgment in a law court for the full amount due from the owner under the contract. It seems to me that the holdings that the effect of the service of notice is to assign pro tanto, and that the owner has no right to credit until payment, and that the contractor may recover after the service of notice from the owner the full amount due on his claim, must necessarily result in the holding that when the contractor brings his suit against the owner he represents the claims of the noticing claimants and their causes of.action. Where there is a dispute, as in this case, between the contractor and owner, it is necessary that the amount due should be fixed and determined and an approved practice is to permit the contractor to proceed to judgment. Aleck v. Jackson, supra. A court of equity upon bill of interpleader, or in the nature of a bill of interpleader, will not permit more than one suit to be brought for the purpose of establishing the amount due.

In the case at bar, the noticing claimants brought no suit against' the owner. They had knowledge of the suit of the contractor. By silence, at least, they acquiesced in his prosecuting the suit to judgment. The fund in court represents the proceeds of that suit, and its existence is due to the labors of the attorney.

I conclude, therefore, that the contractor had a cause of action within the meaning of the statute of 1914, either in his own right or in the right of the stop-noticing claimants, and if in their right, then that he acted as their agent by force of the statute, and that the amount due to the attorney constitutes a lien upon the cause of action and is entitled to be first satisfied.

This ease was rather informally tried. Ho testimony was taken. Upon the hearing the amount, validity and priority of the respective claims were agreed to, in open court. The amount due to the attorney if he had a lien was agreed to. My recollection is that it was also agreed that tire stop-noticing claimants had notice of the bringing of the suit by the contractor, and that none of them brought suits upon their stop-notices. If there is any question but that the facts above stated are correct, then testimony must be taken to establish them before the signing of a final decree. If the case goes up without the taking of further testimony, it must go up with the facts in these conclusions admitted.

Settle decree on two days’ notice.


text:
    Edward S. Atwater, Jr., as receiver, &c., v. Marwood R. Baskerville et al.
    [Decided May 16th, 1918.]
    1. This court may, under the sixty-fifth and sixty-sixth sections of the Corporation act, appoint a receiver of a foreign corporation found to be insolvent, notwithstanding the fact that no receiver has been appointed at the domicile of the corporation, and there are no proceedings there pending against it, and the procedure is substantially the same as upon application for the appointment of a receiver for a domestic corporation.

      2. McDermott v. Woodhouse, 87 N. J. Eq. 615, distinguished.
    3. AVhere property within this state is alleged to have been fraudulently transferred, and the alleged fraud doer is here in bankruptcy, and several of the parties defendant are residents of this state, a bill to set aside a conveyance as fraudulent may be maintained by a receiver of a corporation of another state, appointed by this court, and such bill will not affect the internal management of the affairs of such corporation within the sense of the opinion in McDermott v. Woodhouse, supra.

    On bill. On order to show cause.

      Mr. Foster M. Voorhees, for the motion.

      Mr. Clark McK. Whittemore and Mr. Abram S. Cornish, contra.

   Lane, V. C.

The suit is brought by the receiver of a New York corporation, appointed by this court on November 5th, 1917, against the Jersey Co-operative Realty Company, Marwood R. Baskerville, ’William J. Shearer, Carrie M. Shearer, his wife, Elizabeth Heights Realty Company, Benjamin A. Vail, as trustee in bankruptcy of said William J. Shearer, and the sheriff of the county of Union. It charges that on December 11th, 1915, the Jersey Co-operative Realty Company was the owner in fee of certain premises; on such day the company was insolvent and had suspended its ordinary business; for the purpose of hindering, delaying and defrauding creditors and stockholders and without consideration, defendant William J. Shearer, who was the president of.the company and one of its directors, the other directors being William J. Shearer, Jr., and Armwell W. Lassell, caused the company to transfer the said premises to him; on December 24th, 1915, William J. Shearer and wife conveyed the premises to the Elizabeth Heights Realty Company, a corporation of New Jersey; the Elizabeth Heights Realty Company was a mere dummy for William J. Shearer, the directors being William J. Shearer and William J. Shearer, Jr., .William J.- Shearer being president and William J. Shearer, Jr., treasurer and secretary, William J. Shearer owning all of the issued and outstanding capital stock; at the time of the transfer the Elizabeth Heights Realty Company had full knowledge of the insolvent condition of the Jersey Co-operative Realty Company; the conveyance to the Elizabeth Heights Realty Company was made without consideration and with intent to Under, delay and dlefraud the creditors of the Jersey Cooperative Realty Company; on March 7th, 1916, the Elizabeth Heights Realty Company conveyed the lands and premises, without consideration, to William J. Shearer; on March 7th, 1916, William J. Shearer and wife executed a mortgage to the defendant Marwood R. Baskerville to secure the payment of the sum of $20,000 in five years, without interest; Marwood R. Baskerville was a stockholder of the Jersey Co-operative Realty Company and had full knowledge of its insolvency and of the fraudulent nature of the transaction; on August 28th, 1916, a mortgage, theretofore held by the Mutual Life Insurance Company of New York for $3,000, was assigned to Marwood R. Baskerville; on October 12th, 1916, Baskerville instituted proceedings in this court to foreclose the last-mentioned mortgage with the result that a final decree was obtained, a writ of fieri facias issued and the sale advertised for November 14th, 1917; William J. Shearer on October 19th, 1916, was adjudicated a bankrupt in this district, and a trustee appointed; the complainant recognizes the validity of the mortgage previously held by the Mutual Life Insurance Company of New York; the creditors of the Jersey Co-operative Realty Company are able and willing to pay the amount due on the decree with all legal expenses and will agree not to enforce the decree until the validity of the conveyances and-the second mortgage -shall have been- determined. The bill challenges the validity of tire conveyances and of the mortgage for $20,-000 and seeks a decree setting them aside. The bill charges that if defendant Baskerville is permitted to proceed with his sale pending determination as to the validity of the conveyances and mortgage, the property will be sacrificed and the creditors and stockholders of the Jersey Co-operative Realty Company injured. Upon the filing of the bill an order to show cause was allowed, requiring defendants to show cause why, pending the determination of the suit, the sale under the decree for foreclosure should not be stayed upon equitable terms. Upon the return of the order, there was no appearance except by the defendant Baskerville. There was no answer upon the facts. The 'defendant contends — first, that the order appointing the receiver contains no adjudication of insolvency, and is therefore void upon its face; second, that the court had no jurisdiction to appoint a statutory receiver for the foreign corporation in. the original proceedings; third, that the court has no jurisdiction of the subject-matter of the action because it would result in an interference with the internal affairs of a foreign corporation.

First. An examination of the order appointing the receiver discloses that there does not appear therein an adjudication of insolvency. The court did, in fact, adjudicate the corporation insolvent. The omission in the order was an oversight. It may be corrected by the entry of an order nunc pro tunc, amending the order appointing the receiver by including therein an adjudication of insolvency.

Second. Sections 65 and 66 of the act concerning corporations (Rev. 1396; 2 Comp. Stat. p. 1640) provide for the adjudication of corporations insolvent and the appointment of receivers. Section 96 provides that foreign corporations doing business in this state shall be subject to the provisions of the act so far as the same can be applied. 2 Comp. Stat. p. 1657.

Prior to the deliverance of the opinion of the court of errors and appeals in the case of McDermott v. Woodhouse, 87 N. J. Eq. 615, it appears not to have been doubted but that this court, had power to appoint a receiver of a foreign corporation under sections 65 and 66 upon a finding of insolvency, nor but that the procedure was substantially the same as upon an application for the appointment of a receiver of a domestic corporation.

In Albert v. Clarendon, &c., Co., 53 N. J. Eq. 623, the question was squarely presented. There the bill was filed against a corporation incorporated in England. The allegation was insolvency. A motion was made to dismiss. Vice-Chancellor Van Fleet said: “The defendant is a. foreign corporation. Our statute concerning corporations declares that foreign corporations doing business in this state shall be subject to its provisions so far as the same can be applied to them. * * * The meaning of that section of the statute which I have quoted seems to me to be clear. It was enacted to give this court the same jurisdiction' over foreign corporations doing business in this state, when they become insolvent and have property here, that it exercises over insolvent domestic corporations, so far, at least, as should be necessary for the sequestration of their property here, and converting the same into money. To authorize this court to appoint a receiver of an insolvent foreign corporation, it is not necessary that the corporation should be engaged in eamdng on its business in this state on the very day when the bill or petition is filed, but this court may take jurisdiction in any case- where it is made to appear that the corporation has done business here and still has property here, although at the time when the bill or petition was filed its business here is entirely suspended. The obvious design of the statute is to give the creditors of any foreign corporation which, having done business in this state, becomes insolvent and has property here which should be administered for the benefit of its creditors, the same remedy against the corporation, in respect to its property here, that it gives to the creditors of an insolvent domestic corporation. Any other construction would, as it seems to me, defeat the main object of the statute and render it worthless.”

In Low, Receiver, v. R. P. K. Pressed Metal Co., 91 Conn. 91; 99 Atl. Rep. 1; L. R. A. (1917 D) 291, in an original proceeding a receiver had been appointed of a New York corporation. Subsequently, a receiver was appointed in the state of the domicile of the company. Application was then made for the appointment of an ancillary receiver. It was insisted that the court was without jurisdiction in the original proceeding to appoint a receiver. The court held that the original appointment was proper. The court said: “When it appoints a receiver the officer becomes its officer, and is completely amenable to its control, and it matters not whether he is called an ancillary or merely a receiver. His title to the assets within the jurisdiction is derived from its decree, and does not depend upon comity. The assets are in its custody, and are to be disposed of as equity and the orderly administration of justice requires. Its judgments and decrees in respect to these assets must be accepted as conclusive by all other courts. Where a receiver, administrator, or other custodian of an estate, is appointed by the courts of one state, the courts of that state reserve to themselves full and exclusive jurisdiction over the assets of the estate within the limits of the state. Reynolds v. Stockton, 140 U. S. 254; 35 L. Ed. 464; 11 Sup. Ct. Rep. 773.” An illuminating note upon the power to appoint receivers for foreign corporations where no domiciliary receiver has been appointed, follows in L. R. A. (1917 D) 295. And see p. 303, where the right to appoint under statutes similar to that of this state is considered. Also see Beale For. Corp. § 791.

It is an established practice now for federal district courts to appoint receivers of corporations foreign to the district and the state in which the district is situated at the suit of a non-resident creditor, where the corporation can be served and does not object to the jurisdiction or where it consents. In such suits, all of the assets of the corporation are liquidated and the proceeds distributed. If necessary, suits ancillary to the first are brought in other districts. The receivers are permitted to assert any right of the corporation or its creditors. The authority of a state court to appoint a receiver for a foreign corporation which has entered into business in the state under a statute providing such corporations shall be deemed and taken to be corporations of the state was not questioned in the case of Blake v. McClung, 172 U. S. 239; 43 L. Ed. 432.

The law seems to be well settled that a court of equity has jurisdiction under its inherent power, and where statutes exist similar to that in this state, then under such statutes, to appoint a receiver of a foreign corporation upon the ground of insolvency or upon any other ground which would warrant the appointment of a receiver, to conserve and gather in the assets, either legal or equitable, within the state and to enforce the rights of the corporation, either legal or equitable, which may be enforced against those over whom jurisdiction can be obtained, within the case of Pennoyer v. Neff, 95 U. S. 714; 24 L. Ed. 565. The jurisdiction of the court does not depend upon: whether or not a receiver has been appointed in the state of the domicile of the corporation nor upon whether it has been there adjudicated insolvent. The question is, one not of jurisdiction but of discretion in the exercise of jurisdiction. It is insisted, however, that this is not now, if it ever was, the law in this state since the opinion .of the court of errors and appeals in McDermott v. Woodhouse, supra. In that case a bill had been brought by a receiver of a New York corporation appointed by this court to hold stockholders for liability for stock issued for property purchased, as was said, at a gross overvaluation. The suit was brought to enforce liability arising under the provisions of the New York statute. McDermott v. Woodhouse, 99 Atl. Rep. 103. The court of errors and appeals held that such a suit could not be brought either at law, or in equity, until the amount of the assessment had been determined, and that the only forum in which such a determination could be had was that of the domicile of the corporation. This is as far (for the purposes of the present case) that the case can be said to have any binding authority. In the opinion the court used this language: "There is nothing to show that a receiver has ever been appointed in New York, the domicile of the corporation. Hothing is averred in the bill which would justify our courts in appointing a receiver in insolvency of a New York corporation. The draftsman seems to have conceived the notion that under our statute a receiver in insolvency can be appointed for a foreign corporation by the same procedure that is authorized in the case of a New Jersey corporation. We mention these difficulties because they are of so fundamental a character that we ought not to pass them unnoticed, and thereby appear to justify what seems by the averments of the bill to have been an unwarranted interference by our courts in the internal affairs of a foreign corporation. Probably the proceedings for a receiver were ex parte, and the attention of the court was never called to the fact that the corporation was not a New Jersey corporation. The matter is important. The bill seeks to do what can only be done by a receiver in case he possesses all the powers of a statutory receiver in insolvency, and shows on its face that the utmost powers he could have would be those of a mere ancillary receiver to gather in the assets in this state.” It will be at once observed that the language used indicates merely an expression of the refusal of the court to approve the practice pursued in the appointment of a receiver of a foreign corporation. If it had been intended to definitely overthrow the doctrine of the ease of Albert v. Clarendon, &c., supra, that ease, and others which I have referred to, would undoubtedly have been mentioned, nor do I think that the use of the word “ancillary” implied that the court deemed that it was a necessary prerequisite to the appointment of a receiver in this jurisdiction, that a receiver should have been appointed ini the jurisdiction of the domicile of the corporation. Bather the term “ancillary” is employed in the sense used by Vice-Chancellor Reed in Irwin v. Granite State Provident Association, supra. To hold that a necessary prerequisite to the appointment of a receiver is the appointment of a receiver in the state of the domicile would, in a great many instances, where all of the business of the corporation is conducted in this state, all of its property is in this state, all of its creditors, or a majority of them in this state, deprive residents of this state of any remedy or force them to proceed to a foreign jurisdiction which would have control of nothing but the corporate entity. Summit Silk Co. v. Kinston Spinning Co., 154 N. C. 421; 70 S. E. Rep. 820; Ann. Cas. (1912 A) 897. In that case the court reiterating its remarks in Holshouser v. Copper Co., 138 N. C. 248; 50 S. E. Rep. 650; 70 L. R. A. 183, on appeal of the State of New Jersey, held that the courts of North Carolina had jurisdiction to appoint a receiver of a New Jersey corporation on the ground of insolvency under a statute giving the court power to appoint receiver’s of corporations generally.

In. 12 Ruling Case Law § 85, tlie rule is stated:

“It is well settled that the eourts of one state may, at the instance of resident or domestic creditors, or even at the instance of a non-resident créditor, appoint a receiver for a foreign corporation doing business therein dnd having property there, notwithstanding the appointment of a receiver at the,domicile of the corporation where the general requisites for a receivership, are shown, as in other cases.”

Citing cases from many jurisdictions including the supreme court of the United States. The case of Albert v. Clarendon, &c., cited with approval.

. I conclude, therefore, that the appointment of the receiver was properly made.

Third. The last contention made hy the defendant is that the relief sought by the receiver is such an interference with the internal affairs of the corporation as that relief cannot be obtained within this state. And again reliance is placed upon McDermott v. Woodhouse, supra. I do not think that the principle of that case applies to this. The property alleged to have been fraudulently transferred is within this state. The alleged fraud doer is here in bankruptcy. The defendant Baskerville has appeared. The Elizabeth Heights Eealty Company is a New Jersey corporation. It is fair to assume that the wife of Shearer is a resident of this state. The New Jersey Co-operative Eealty Company is made a party defendant and may be served here. The bill is one which might have been brought by the corporation, or a stockholder in its right if the directors refused to proceed and if a receivership had not intervened, to set aside a conveyance alleged to have been fraudulently made by its directors for their own use and benefit, without consideration. If such suit were brought by the corporation, or by anyone in its behalf, it would necessarily have to be brought in a state where jurisdiction could be acquired over the persons of the defendants or over the property. Belief could not be obtained in the jurisdiction of the domicile of the corporation unless the parties defendant voluntarily'' appeared. The New Yórk courts have no control over the property, nor over the foreclosure proceedings pending in this court. No relief .could be granted which would, maintain the status until final hearing unless personal service could be made upon the defendants.

. A case directly in point is that of the National Trust Company v. Miller, supra. There had been a receiver appointed in the jurisdiction of the domicile of the corporation. Subsequently, upon a petition by certain of its creditors representing that all of its property was located in this state, that it had suspended its business and become insolvent and that a receiver had been duly appointed in New York for the purpose of winding up and making equal distribution, a receiver of the corporation was appointed in this state. A foreclosure suit- had been started against the company before the receiver was appointed. The receiver was let in as party defendant and attacked the validity of the mortgage. The nature of the defence is illustrated by the following excerpts from the opinion of Vice-Chancellor Van Eleet: “The validity of this mortgage is indefensible except on the theory that it was within the scope of the powers of the paper company to devote the half or the whole of its property to the railroad company, regardless of the rights of its creditors or the public. It is clear it possessed no such power, and if it had attempted to do so, by open and direct means, its act would have been so conspicuously ultra vires as to strip it of the least appearance of validity. * * * There is another important principle which I think it is my duty to enforce 'in deciding this case. Equity regards the property of a corporation as a fund held in trust for the payment of its debts, and if others than bona fide creditors of the corporation, or purchasers, possess themselves of it, they take it charged with this trust, which a court of equity will enforce against them.” The result was that the mortgage was set aside. If what was attempted to be accomplished in National Tmst Company v. Miller did not involve an interference with the internal affairs of the corporation, then it would seem that what is attempted to be accomplished in the case sub judice certainly- does not. The vice-chancellor held that the defence could be set up by the receiver appointed by this court and said: “There can be no doubt, under the rule established by this adjudication (referring to Miller v. Mackenzie, 29 N. J. Eq. 291), that it would be competent for the receiver in this case, in his official character, to bring a suit in equity to nullify the mortgage in question. He holds the title to the mortgaged premises; he alone lias a right to their possession, and he alone can sell and convey them. Adopting an .argument very forcibly put in the case just cited, we may say it cannot be pretended, if the mortgagees were in possession, that this receiver could .not maintain an action of ejectment against them, and if he established the fact that the mortgage was a fraud upon creditors, that he would not be entitled to recover. Why, if this be so, is he to be .confined to such action, and to be excluded from taking his case before a tribunal that is competent not only to adjudge with regard to his right to the property, but also to remove from it a fraudulent and pretended claim, which, so long as it exists, renders it unsalable in his hands ? His right of action and his right of defence are, in this instance, in my apprehension, reciprocal, and if he has produced sufficient evidence of the invalidity of the mortgage to entitle him, if he were complainant, to a decree so adjudging, he is, upon the same evidence entitled to a decree of dismissal. * * * In my judgment, the receiver stands before the court invested with the rights and equities of the creditors of the paper company, and has therefore a right to ask judgment against this mortgage, if he has shown that it was executed in fraud of their rights.”

If I am right that a receiver of a foreign corporation can be appointed under the statute without a receiver having first been appointed in the jurisdiction of the domicile of the corporation, I think the fact that such a receiver has been appointed is immaterial with respect to the powers of the receiver appointed here. The case of National Trust Co. v. Miller is cited with approval in Beale For. Corp. § 791, and in many cases in this jurisdiction.

In Summit Silk Co. v. Kinston Spinning Co., 154 N. C. 421, the court said: "The property of the spinning company is in this state, and the laws of New Jersey should not be permitted to effect its status or prejudice the rights of creditors of the corporation in respect of it. They must all come into this jurisdiction in order to have its assets administered for their benefit, and cannot get relief in the courts of New Jersey, because the property is situated here. If we should deny the remedies of our laws to them for the reason assigned by the defendant, the assets in this state would be practically exempt from the claims of creditors.”

In Minchin v. Second National Bank, 36 N. J. Eq. 436, a receiver had been appointed of a foreign corporation, under the statute. There had not been an appointment in the jurisdiction of the domicile of the company. It appeared that certain attachments had been levied upon the property of the corporation pending the hearing on the order to show cause. The party applying for the appointment of the receiver attacked the attachments. It was held by the chancellor that the proper party to make the attack was the receiver.

Without attempting to enumerate all of the powers possessed by a receiver of a foreign corporation, it seems to me to be clear that he has the power to institute such actions as may be necessary to recover, for the creditors and stockholders, assets, legal or equitable, within this state, and to enforce such obligations of persons over whom jurisdiction cam be obtained in this state which the corporation or its creditors might have enforced. I do not think that the suit will affect the internal management of the affairs of the corporation within the sense used by the court of errors and appeals in McDermott v. Woodhouse, supra, or in Jackson v. Hopper, 76 N. J. Eq. 604.

It is extremely difficult, and, I think, almost impossible, to formulate a test as to what constitutes an interference with the internal affairs of the corporation which can be applied in every case. The court of errors and appeals in Jackson v. Hopper, supra, while approving the definition contained in the case of North State Mining Co. v. Field, 64 Md. 151, confined it to the class of cases of which that then before the court was one.

The subject is treated in 12 Ruling Case Law (tit. “Foreign Corporations”) §§ 20, 21, 22. It is there stated that the test

“Where the act complained of affects the complainant solely in his capacity as a member of the corporation, whether it be as corporator, stockholder, director, president or other officer, and is the act of the corporation, whether acting in stockholders’ meeting or through its agents, the board of directors, then such action is the management of the internal affairs of the corporation, and in the case of a foreign corporation courts of another state will not take jurisdiction even though the visible tangible property of the foreign corporation is situate therein. Where, however, the act of the foreign corporation complained of affects the complainant’s individual rights only, then a domestic court will take jurisdiction,”

has been adopted by courts of several jurisdictions, yet it appears that it has not been by any means uniformly approved. It has been held that there are cases where, although the rights of a party grow out of his membership in the corporation, yet, as the matter affects only his individual rights under the contract by which the stock was issued, therefore an enforcement of those rights will not be an interference with the internal management of the corporate affairs within the meaning of the rule. The author says that the difference between the two tests is as follows:

“Those courts which apply the first mentioned test, in determining whether they will take jurisdiction of an action against a foreign corporation, inquire whether the right sought to be enforced accrues to the plaintiff as an individual, independent of his relationship to the corporation, while with those which have adopted the latter, the question is, does the right, though growing out of his status as a stockholder, belong to the plaintiff individually and not as one of a class. Irrespective of the question as to the proper test to be applied in determining what are the internal affairs of a corporation, the view has been expressed by some courts that in the case of corporations which are non-resident only in that they were created in another state — the officers, agents, stockholders, business, and property all being within the jurisdiction of the court — they will not deny relief in a proper case on the ground that the ‘internal affairs’ of the corporation will be affected.”

It has been held (Babcock v. Farwell, 245 Ill. 14; 91 N. E. Rep. 683; 137 A. S. R. 284; 19 Ann. Cas. 71, and note, a well-reasoned case) that where minority stockholders in a foreign corporation seek by suit in equity to have restored to the corporation property fraudulently appropriated to their own use by directors, who, together with the corporation itself, are personally subject to the jurisdiction of the court, the court should exercise its jurisdiction for the determination of the controversy. And in Kidd v. New Hampshire Traction Co., 72 N. H. 273; 56 Atl. Rep. 165; 66 L. R. A. 574, it was held that a fraudulent transfer of the personalty of a foreign corporation situate within the state would be set aside, and this notwithstanding that the corporation could not be served with process. These latter cases are direct authorities in the case at bar.'

If it had not been for the strenuous insistence on the part of the defendant that the opinion of the court of errors and appeal in McDermott v. Woodhouse required a determination directly contrary to which I have arrived, I would have contented myself in disposing of this case with a mere reference to Albert v. Clarendon, &c., Co., National Trust Co. v. Miller, Minchin v. Second National Bank, Irwin v. Granite State Provident Association.

Whether the objections sought to be raised by the defendant as to the validity of the order appointing the receiver and the jurisdiction of the court to appoint a .receiver can be raised by him in this suit I have not considered and express no opinion thereon.

The result is that the order to show cause will be made absolute and the injunction will be continued to final hearing upon condition that the defendanits secure, or cause to be secured, the payment of the amount due upon the decree of the defendan t Baskerville; other equitable provisions may also be made in favor of other defendants if they appear. Before the signing of any order, an order amending the order appointing receiver should be taken as indicated in the forepart of this opinion.

Settle order on two days’ notice.


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    Edward S. Atwater, Jr., as receiver, &c., v. Marwood R. Baskerville et al.
    [Decided October 15th, 1918.]
    On bill. On order to slxow cause. Supplemental opinion.

      Mr. Foster M. Voorhees, for the motion.

      Mr. Clarke McK. Whittemore and Mr. Abram S. Cornish, contra.

   Lane, V. C.

Since filing the opinion in this case my attention has been called to the case of John Agnew Co. v. Board of Education of the City of Paterson et al., 83 N. J. Eq. 49. Vice-Chancellor Stevenson there said: “A foreign corporation, under the principle of comity, comes into New Jersey to do business and makes-large contracts for the construction of buildings in New Jersejq in which business it acquires property in New Jersey, and also contracts debts. It would be a most extraordinary result, indeed, if when this foreign corporation becomes insolvent it could still transfer its New Jersey assets acquired in its New Jersey business so as to make preferences among its New Jersey creditors, necessarily disadvantageous to some of them, in defiance of the law which prevents New Jersey corporations from doing this thing. Our statute expressly provides that ‘foreign corporations doing business in this state shall be subject to the provisions of this act, so far as the same can be applied to foreign corporations/ Section 96. There is not the slightest difficulty in applying the prohibition upon preferences contained in section 64 of the Corporation act to a foreign corporation and its assets, of the character and in the situation presented in this case. If the Glen company had not been put in bankruptcy, the statutory action; based on insolvency, &c., provided for in section 65 of our statute, might have been brought and the receiver appointed in such an action would have taken possession of all the New Jersey assets, including tire right to collect this money from the city of Paterson, and would have administered the same precisely as they would have been administered in case the corporation had been created under our New Jersey statute.’'* (Italics mine.)

The case was unanimously affirmed by the court of errors and appeals (83 N. J. Eq. 339), for the reasons stated by Vice-Chancellor Stevenson.

The language used by the vice-chancellor must have been present in the minds of the court of errors and appeals, for the appeal was on the claim of the Eirst National Bank of the Town of Union, and the-remarks made by the vice-chancellor were apposite to the disposition of that claim.

This case is in direct conflict with the construction sought to be put on McDermott v. Woodhouse, 87 N. J. Eq. 615, by counsel for the respondents.

My attention has also been called to the case of Boehme v. Rall, 51 N. J. Eq. 541. In that case it appeared that extensive litigation was conducted by a receiver appointed for a foreign corporation under the statute upon the ground of insolvency, and it never seems to have occurred either to Vice-Chancellor Green or to counsel involved in the case that there was any doubt of the power of the court of chancery to appoint such a receiver.


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    Patrick J. Dolan v. Universal Fire Brick Company.
    [Decided June 12th, 1918.]
    1. The court may, under the provisions of the sixty-fifth and sixty-sixth sections of an act concerning corporations, appoint a receiver of a foreign corporation found to be insolvent notwithstanding the fact that no receiver had been appointed in the jurisdiction of the domicile of the corporation and that there are no proceedings there pending against it, and the procedure is substantially the same as if the corporation were domestic.
    2. McDermott v. Woodhouse, 87 N. J. Eq. 615, distinguished upon the grounds indicated in Atwater v. Baskerville.

    On bill, &c.

      Mr. Michael J. Tansey, for the complainant.

      Mr. Clifford L. Newman and Mr. Edgar M. Tilt, for the defendant.
   Lane, V. C.

This is an application to appoint a receiver of a foreign corporation under the provisions' of the sixty-fifth and sixty-sixth sections of the Corporation act. 2 Comp. Stat. p. 1640. The jurisdiction of the court is questioned upon the authority of McDermott v. Woodhouse, 87 N. J. Eq. 615. I considered that ease in Atwater v. Baskerville, reported supra, p. 121, and came to the conclusion that it is not an authority for the proposition that this court may not under the sixty-fifth and sixty-sixth sections of the statute appoint a receiver of a foreign corporation. This court may, where a foreign corporation is shown to be insolvent, appoint a receiver, notwithstanding the fact that no receiver has been appointed in the domicile of the corporation and there are no proceedings there pending against it, and the procedure is substantially the same as if the corporation had been domestic.


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    Sophie Ksiazek v. Alexander Ksiazek.
    [Decided June 12th, 1918.]
    1. Sureties on a bond given to secure release from arrest on a writ of ne exeat may not surrender their principal and thus secure exoneration.
    2. A bond in ne exeat conditioned that defendant will not .depart the state without leave is not discharged by the entry of final decree, nor by the fact that the defendant is in custody for failure to comply with final decree.
    3. A bond in ne exeat with condition that defendant will not depart the state without leave is not discharged after final decree providing for the payment of alimony by the fact that the defendant has complied with the final decree to date of application for discharge.
    4. The court may, in its discretion, after final decree and while the defendant is in custody for failure to comply with final decree, discharge the sureties on a bond given to secure release from arrest by virtue of a writ of ne exeat upon terms, and may, while the defendant be so in custody, direct the issuance of a new or alias writ of ne exeat upon a showing that there is danger if the defendant be released of his departing the jurisdiction.
    On motion to discharge sureties on bond given on ne exeat.

      Messrs. Frey & Vanecek (Mr. John Q. Frey), for the motion.

      Messrs. Pomerehne & Laible, contra.

   Lane, V. C.

Pending the suit a writ of ne exeat issued. Defendant gave bond with sureties, the condition of which was in the old form that he would not depart the jurisdiction without leave. Subsequent to final decree, an application was made by his sureties for leave tb surrender him. This application was decried. Thereafter, an application was made to punish him for contempt; he was adjudged guilty and incarcerated. The sureties now apply for their discharge. That the sureties cannot surrender their principal is the law of this state. Schreiber v. Schreiber, 86 N. J. Eq. 303, Vice-Chancellor Stevenson (at p. 306) affirmed without criticism, 86 N. J. Eq. 437. See, also, In re Griswold, Petitioner, 13 R. I. 125.

The statement in Tothill, reported in 21 Eng. Reprint 110, that bail in chancery is discharged upon bringing in the principal, as at common law, does not express our law. It was this statement upon which the vice-chancellor acted who accepted a surrender of the principal in Marino v. Marino, hereafter noted.

The question is, whether the principal being in custody for contempt for failure to obey the final decree the sureties are entitled to their discharge.

In Le Clea v. Trot (1704), Pr. Ch., C. & H. 230; 24 Eng. Reprint 112, the lord keeper held that the sureties should not be discharged after answer put in by the defendant, nor even after decree against him, and commitment for £19,000 decreed against him. In Debazin v. Debazin (1743), 21 Eng. Reprint 204, it appeared that a writ of ne exeat sued out, the defendant entered into a bond with two sureties, for his not departing the kingdom. The cause was afterwards heard, and there was a decree against the defendant for the same matter for which the ne exeat issued. The defendant being in. contempt and in custody for not performing the decree, the sureties applied, and obtained an order that they should be discharged and the bond as to them canceled. In Stapylton v. Peill (1816), 19 Ves. Jr. 615; 34 Eng. Reprint 644, application was made to discharge the sureties prior to final decree where the defendant was in custody for contempt for failure to put in an answer, and Lord-Chancellor Eldon refused to make the order, observing that he did not recollect such a motion except once and then it was refused and the editor contributes the following note:

“See Beames on Ne Ex. Reg. 56 in Le Clea v. Trot, Pre. Oh. 280, where this application was refused and in Debazin v. Debazin, 1 Dick. 95, where it was granted, the commitment was for not obeying the decree to pay the money, for which the writ was granted.”

' Upon the authority of Debazin v. Debazin, the court of appeals of Maryland, in Johnson v. Glendenin, 5 G. & J. 468, affirmed an order discharging the sureties in a case where the defendant had been committed to jail for not complying with the final decree and afterwards had' escaped from custody. The arguments of counsel in this case are very instructive.

In Wauters v. Van Vorst, 28 N. J. Eq. 103, the chancellor approved Debazin v. Debazin. That case cannot be considered an authority, however, that the court must discharge the bail, the chancellor merely holding that it has the power. In Elliott v. Elliott, 36 Atl. Rep. 951, Vice-Chancellor Reed held, where the condition of the bond was in the form provided for by the rules, that, after final decree and even after a bond given to comply with the 'final decree, the bond on he exeat was not superseded and suit might be brought upon it. Vice-Chancellor Howell, in Marino v. Marino, in an unreported memorandum (which case, by the way, was the one in which there was the irregular surrender of the principal referred to by Vice-Chancellor Stevenson in Schreiber v. Schreiber, says: “Prior to 1871 it was the practice in this state for the defendant so arrested to give bond in what was known as the common form, viz., that he would not depart from or leave this state without the permission of the court. This was considered to be practically a bond for appearance, although not so in terms, and if the defendant remained within the state until final decree the condition of the bond was held to be satisfied.” He cites no authority for the dictum. It seems to be opposed to the English cases. In Le Clea v. Trot application was made by the sureties after final decree. So in Debazin v. Debazin. It would seem as if had it been considered that the exigency of the writ h'ad' been satisfied by the final decree, the applications would have been based upon that ground. The condition of the bond in the common form is broken if the defendant without leave of court at any time leaves the state. Upon a breach of the condition the money, may be directed' to be brought into court. The cofirt may, however, if the defendant leave the state, without permission, and thereafter return and subject himself to the jurisdiction of the court, remit the forfeiture. In re Appel (Circuit Court of Appeals), 20 L. R. A. (N. S.) 76; 163 Fed. Rep. 1002.

The condition of the bond is that “the defendant shall not depart from or leave this state without permission of the said court of chancery.” It is unlimited as to time. The bond which may be given under the two hundred and sixteenth rule is conditioned that the defendant shall cause his appearance to be entered in the suit, continue his appearance and render himself amenable to the orders and process of the court and to such process as shall be issued to compel the performance of the final decree and to appear before the court when required. The purpose of the rule was to permit the giving of a bond which would not be as rigorous in its condition as the bond in the common form. If the bond be in the common form a single- departure from the state will breach its condition. The defendant may still insist upon giving a bond in the common form. I think that if he does, he and his sureties assume practically all of the obligations which he would be under if he gave a bond under the two hundred and sixteenth rule, plus the additional obligation of continuously remaining within the state. The cases dealing with the effect of a bond given 'under the two hundred and sixteenth rule are therefore direct authority with respect to the effect of a bond given, in the common form.

The vice-chancellor, in Marino v. Marino, after final decree, refused to vacate a bond with condition as provided for by the rule, although the defendant was within the state and was complying with the final decree, and I think the same result would have been reached had tire bond been in tire common form. He further held, notwithstanding the surrender and the fact that the defendant had been rearrested on an alias writ, and a new bond given, that the old bond was still outstanding and. reduced the amount of the new bond so as to make the aggregate bail $5,000.

The writ is not discharged by the entry of -judgment, but continues until security is given (and even after unless discharged by order), or the judgment is satisfied. McNamara v. Dwyer, 7 Paige 239; Mitchell v. Bunch, 2 Paige 603; Lewis v. Shainwald, 48 Fed. Rep. 492; Elliott v. Elliott, supra. Incarceration for contempt is not in any sense a satisfaction of the judgment or compliance with the decree.

The cases of Debazin v. Debazin and Le Clea v. Trot are not in conflict. The utmost effect of Debazin v. Debazin is as stated by the chancellor in Wauters v. Van Vorst, that the court may, where the defendant is in custody for failure to comply with the final decree, discharge the sureties, but it is not obliged to. An entirely different question arises as to whether or not the court ought, in the exercise of its discretion, the defendant being in custody, release the sureties. The fact that the final decree has been entered and that the defendant is in custody does not vitiate the Avrit of ne exeat, nor does it prevent the issuance of an alias or new writ. So long as the defendant is in custody for a contempt for his failure to pay certain arrears of alimony he cannot depart the state and the complainant is not injured, but he may satisfy the amount of arrears to date and then depart the state and the complaiant be left ’remediless.

I will advise an order discharging the sureties provided the defendant give bond to perform the final decree, or if, within a time to be fixed, the complainant does not apply for an alias or new writ upon proper moving papers indicating that if the defendant be released he may depart the state.

The reasons which induce me to grant the relief which I have above indicated are that the defendant is now incarcerated within the state and may be held within the jurisdiction unless he shall give a new bond on the writ of ne exeat, and the sureties represent that the bond has been recorded in the county of Essex among bonds to sheriffs, and that a title company refuses to guarantee title to property owned by them which they desire to transfer. Whether a bond so recorded constitutes an encumbrance upon their land, I cannot determine in this proceeding and can give them relief only in the manner above indicated.

Settle order’ on -two days’ notice.